United States District Court, W.D. Virginia, Roanoke Division
K. MOON, UNITED STATES DISTRICT JUDGE.
Gregg-El, a Virginia inmate proceeding pro se, filed
a complaint pursuant to 42 U.S.C. § 1983 naming numerous
administrative and medical staff of the Virginia Department
of Corrections (“VDOC”), Keen Mountain
Correctional Center (“KMCC”), and River North
Correctional Center (“RNCC”) as defendants.
Gregg-El alleges that defendants violated the First and
Eighth Amendments of the United States Constitution by
retaliating against him and being deliberately indifferent to
a serious medical need for knee replacement surgery.
Defendants Doe, Fleming, Kiser, Mathena, Mullins, Ravizee,
Robinson, Sandifer, Walls, Walrath, and Whited (collectively,
“correctional defendants”) filed a motion for
summary judgment. Defendants D'Alessandro, Stanford, and
Wells (collectively, “medical defendants”) filed
a motion to dismiss. Gregg-El filed a brief (without
evidence) to oppose the correctional defendants' motion
for summary judgment, and he filed a verified brief with an
affidavit to oppose the medical defendants' motion to
dismiss. Upon consideration of this action, I will
dismiss numerous claims as barred by the statute of
limitations, and I will grant Defendants' motions as to
the remaining claims and defendants.
grievances that are incorporated into the complaint describe
the relevant medical issues better than the complaint itself.
The grievances, which were filed over the past eleven years,
reveal the following facts.
had reconstructive surgery on his right knee in January 2005
to treat arthritis, osteosclerosis, and another problem. The
surgeon noted that the reconstructive surgery was a
“temporary” fix and that the best remedy would be
knee replacement surgery. Between the surgery and the filing
of the instant action, Gregg-El complained of worsening right
knee function and pain, and he tried to persuade prison
officials and medical staff to authorize knee replacement
surgery. No official had approved knee replacement surgery as
medically necessary by the time Gregg-El commenced this civil
action. Instead, medical staff had diagnosed and treated the
related symptoms with non-surgical methods, including an
X-ray, a physical aid, medications, exercises, injections,
and both lower-bunk and lower-floor assignments.
mostly complains about the medical care involving his knees
while housed at WRSP and KMCC from approximately 2005 to
2013. The defendants named in relation to these complaints
starting from more than a decade ago are VDOC Health Services
Director John Doe; KMCC Wardens Mathena and Fleming; KMCC
Assistant Warden Kiser; KMCC Grievance Coordinator Sandifor;
KMCC staffer Whited; KMCC Physician Assistant
(“PA”) D'Alessandro; WRSP Warden Robinson;
WRSP Grievance Coordinator Ravizee; and WRSP Nurse Stanford.
Gregg-El was confined at RNCC as of November 14, 2013, and
none of these particular defendants are alleged-either in the
complaint or in administrative forms-to have had any
involvement with Gregg-El for at least two years before he
commenced this action.
more recent claims, Gregg-El continues his allegations about
staff's unwillingness to authorize knee replacement
surgery. Gregg-El also alleges that Major Mullins retaliated
against him for his administrative filings seeking that
surgery. Major Mullins's alleged retaliatory act was
inserting erroneous information in Gregg-El's inmate file
to prevent him from obtaining a prison job.
involving RNCC Warden Walrath are not found in either the
complaint or administrative forms. Facts involving RNCC Nurse
Wells, RNCC Grievance Coordinator Walls, and RNCC Major
Mullins are similarly not developed in the complaint.
Consequently, I look to Nurse Wells's, Walls's, and
Major Mullins's responses to Gregg-El's
administrative forms as support for Gregg-El's more
timely legal claims.
August 3, 2014, Gregg-El filed an informal complaint
requesting knee replacement surgery to cure on-going pain and
various dysfunctions in his right knee. Two days later, Nurse
Wells responded, “The doctor has seen you in the past
regarding your right knee. A total knee replacement is
considered elective surgery and is not approved while in DOC.
If you need to see the doctor again, please submit a [sick
than a year later on August 16, 2015, Gregg-El filed another
informal complaint. Gregg-El inquired when he would see the
outside doctor recommended by the facility doctor in July
2015. Nurse Wells replied on August 26, 2015, noting that he
had seen the outside doctor during that same day.
filed a third, relevant informal complaint on September 1,
2015, acknowledging that he was given a knee brace by the
outside doctor but complaining that the brace was confiscated
from him. Nurse Wells responded on September 14,
2015, “The brace that was given to you at an outside
orthopedics office contained large metal bands. Those are not
allowed to be in your possession. The doctor here has sent a
request to Richmond for the knee injections. We are awaiting
Grievance Coordinator Walls
alleges in the complaint that Walls ignored and returned
several of his regular grievances without logging them for
the Warden's review. The administrative record has four
grievances that Walls rejected at intake and returned to
filed a regular grievance related to his knee on August 7,
I am not getting adequate medical treatment because I need
total knee replacement and I am being told that I cannot get
this surgery because the DOC disapprove of elective surgery.
This is cruel and unusual punishment. Because to know I'm
in pain all the time and to deny me . . . that would help
with the pain and do nothing about is not adequate medical
care. The doctor even tells me my knees are real bad and
there is nothing he can do to help me with the pain. I want