United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
Thomas Lewis, a Virginia inmate proceeding pro se. has Hied a
civil rights action, pursuant to 42 U.S.C. § 1983.
alleging that his Eighth Amendment rights were violated by
officers at the Henrico County Jail West Facility. On
February I, 2017, defendants Deputy Charles Amoah and
Lieutenant Jerry Robinson tiled a Motion for Summary
Judgment, as well as a memorandum of law and supporting
exhibits, wherein plaintiff was given the Notice required by
Local Rule 7(K) and the opportunity to file responsive
materials pursuant to Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975). Dkt. Nos. 33-34. On May 3, 2017. plaintiff
filed a sworn pleading styled "Plaintiffs Objection to
Defendant's [sic J Motion for Summary Judgement
[sic]" in which he disputes several facts as stated in
the Motion for Summary Judgment. Dkt. No. 38. For the
following reasons, defendants' Motion for Summary
Judgment will be granted.
record establishes the following facts. Plaintiff was
injured on or about July 9, 2014, after falling from a top
bunk at the Henrico County Jail West Facility. Compl. at 14;
Dkt. No. 34 at 1-2. At that time, plaintiff was assigned to
dayroom 221, cell 10, where he had been assigned since June
23, 2014, along with two other inmates. Dkt. No. 34 at 3
¶ 6. Each cell housing general population inmates has a
top and bottom bunk, and when necessary to accommodate a
third inmate, a cot. Id. at 2 ¶ 5. "There
is no ladder to the top bunk or rails on the bunk"
Gregory Decl. Dkt. No. 34 Ex. A ¶ 7.
had been assigned a cot due to "a medical detail for a
bottom bunk." Compl. at 9 ¶ 10. Only the jail's
medical staff may issue "no top bunk" restrictions,
Dkt. No. 34 at 4 ¶ 13, and plaintiff contends that he
"was given a bottom bunk assignment [from Dr. Dana Vango
at Henrico Jail-East] for 90 days from the ending [sic] of
May until August 2014." Dkt. No. 38 at 3, 7. Generally,
inmates who are provided "no top bunk" restrictions
receive a hard copy of a "Henrico County Jail
Restriction Instructions" form. See Gregory Decl. Dkt.
No. 34 Ex. A ¶ 12.
8, 2014, to alleviate overcrowding in cell 10, which housed
three inmates, plaintiff asked defendant Robinson if he could
move to cell 12, which housed one inmate. Compl. at 9
¶12. "Lt. Robinson verbally okayed the move and
said he would email records the next day to reflect the move,
but advised Plaintiff to wait until lockdown at night before
moving." Id. at 9-10 ¶ 13. "Plaintiff
waited approximately 20 minutes before lock down to move
his belongings to cell 12, " but after plaintiff
completed the move, and while defendant Amoah was performing
the "count, " defendant Amoah asked plaintiff why
he was not in his assigned cell, cell 10. Id. at 10
¶¶ 14-16. Plaintiff advised defendant Amoah that
defendant Robinson had given him permission to move cells,
but defendant Amoah "instructed Plaintiff to gather his
belongings and move back to cell 10 right then and
there." Id. ¶¶ 17-18. As plaintiff
returned to cell 10, he advised defendant Robinson that
defendant Amoah would not allow him to remain in cell 12, to
which defendant Robinson replied, "it was [defendant
Amoah's] decision, he ., . was deferring to it, and
Plaintiff would have to write classification to get the move
officially done." Id. at 10-11 ¶¶
personnel in the Henrico County Sheriffs Office's
Classification section ("Classifications"), who are
privy to inmate information that is used in the assignment
process and unavailable to other staff, have the authority to
assign inmates to cells; other personnel may not change cell
assignments. See Gregory Decl. Dkt. No. 34 Ex. A ¶¶
8, 9. At the time of plaintiffs injury, neither defendant
Amoah nor defendant Robinson was assigned to Classifications.
Amoah Decl. Dkt. No. 34 Ex. B ¶¶ 2, 4; Robinson
Decl. Dkt. No. 34 Ex. C ¶¶ 2-5, 9. According to
plaintiff, jail personnel may change assignments "if it
is deemed appropriate an [sic] necessary or for emergency
purposes, " and the Classifications department is
notified thereafter. Dkt. No. 38 at 5. ¶ 7. In any case,
if an inmate refuses to abide by his cell assignment, a
non-Classifications deputy may place the inmate in holding
until Classifications can reassess and reassign the inmate.
See Amoah Decl. Dkt. No. 34 Ex. B ¶ 5.
plaintiff returned to cell 10 after his attempted move, he
discovered that the inmate who previously occupied the top
bunk "had moved his belongings to the cot." Compl.
at 11 ¶ 21. Plaintiff advised defendant Amoah that he
had "bottom bunk status and he needed his cot back as he
could not climb to the top bunk due to his medical condition,
" yet Defendant Amoah refused to instruct the inmate on
the cot to return to the top bunk. Id. at 11-12
¶¶ 22, 24. Plaintiff did not obviously satisfy any
condition on the Henrico Sheriffs Office's Assessment
Protocol: Bottom Bunk Requests used to determine "no top
bunk" assignments. See Dkt. No. 34 Ex. D (listing age
(greater than 60); musculoskeletal immobility; surgery or
major trauma to neck, back, chest, abdomen or extremities
within six weeks; documented history of seizure disorder;
severe cardiac or pulmonary disease; active detox protocol;
and pregnancy). When plaintiff offered to show the defendants
bottom bunk pass, in [sic] which stated to them that he had
an [sic] could produce, but needed time to retrieve it from
his belongings, [sic] They both refused to listen or give him
time to produce the documents, knowing full well that the
Plaintiff had just moved his belongings from the cot that he
was requesting to move back too [sic].
Dkt. No. 38 at 10-11 ¶ 24.
then requested to be taken "to the hole" because he
"could not get on the top bunk, " he would not
"tell another inmate to move, " and he would not
risk "any further injury to his elbow and his back
trying to get on a top bunk that did not have any ladder or
railings." Compl. at 12 ¶¶ 25, 28. When
defendant Amoah advised plaintiff that he would be given
"a charge for disobeying a direct order" if he had
to be taken to the "hole, " plaintiff' turned
to [defendant] Robinson and asked him if he was going to
allow [defendant] Amoah to force Plaintiff to the top bunk or
be subject to a charge." Id. at 12-13
¶¶ 29-30. When defendant Robinson told plaintiff to
"do as you're told and step in the cell, "
plaintiff agreed to remain in cell 10. Id. at 13
¶¶ 30-31. According to plaintiff, defendants Amoah
and Robinson "totally disregarded the fact that the
inmate [in cell 10] who was assigned to the top bunk had
broken his assignment to occupy the Plaintiffs assigned
cot." Dkt. No. 38 at 14.
plaintiff attempted to climb onto the top bunk later that
evening, "he slipped and fell to the ground, landing on
his injured right arm on which he [was wearing a] brace,
causing it to be re-injured." Compl. at 14 ¶ 36.
The two other inmates in cell 10 eventually helped plaintiff
onto the top bunk, where he fell asleep. Id. at 14.
¶ 37. "[J]ust before the breakfast wakeup call,
Plaintiff fell off the top bunk while in his sleep, hitting
his head on the cot, and landing on his injured arm."
Id. Plaintiff could not move, and the inmates in his
cell called for the deputy, who alerted the medical
officials. Id. at 15 ¶¶ 39-40. Plaintiff
was taken to the hospital by ambulance. Id. ¶
result of his fall, plaintiff suffers from anxiety and
"continues to suffer nerve damage pain to his neck and
back, migrane [sic] headaches, and aggravated nerve pain in
his right arm." Id. ¶ 42. On July 9, 2014,
plaintiff received a "no top bunk" restriction.
Dkt. No. 34 Ex. F. Plaintiff states that he was
"provided with [the] bottom bunk detail indefinitely,
" because his previous accommodation, which was issued
"due to problems with his back and nerve damage to his
right arm, " only covered the end of May through August
of 2014. Compl. at 8-9 ¶¶ 8-9. Plaintiff asserts
that, prior to his fall, "Dr. Dana [sic] Vango issued
him a 90 day bottom bunk pass from 5/29/14-8/29/14" due
to his back and neck pain and "nerve damage to his right
arm for which he also received a brace." Id. at
9 ¶ 9; Dkt. No. 38 at 7 ¶l 3.
November 15, 2013, plaintiff was transferred from Pamunkey
Regional Jail to Henrico County Jail with no current health
problems, and plaintiffs medical records reveal that during
his intake evaluation on November 21, 2013, he reported
"NO current health problems or medications." Dkt.
No. 34 Ex. E (emphasis in original). On December 6, 2013,
plaintiff requested "to see the doctor because of chest
pain, back and knee pain, " but he was a "no show
[during] sick call." Id. He received mental
health treatment on December 31, 2013, and on January 4,
2014, he was treated due to complaints of "dry, cracking
skin between several toes on his R. foot" and
"recurrent discomfort from a L. knee injury in
2012."Id. On March 17, 2014, plaintiff
requested to see a doctor concerning "a burning
sensation in [his] inner elbow and calf muscle (back left). .
. ."Id. Dr. Vango treated plaintiff that day,
and her clinical notes indicate that plaintiff had complained
of his right elbow "constantly burning" for
"the past few months" and of burning in his left
calf as well. Id. Dr. Vango noted "no
redness or deformities" and normal range of motion, and
she provided plaintiff with a "motrin starter pack"
and "muscle rub." Id.
April 2, 2014, plaintiff completed an "inmate sick call
request" stating that he "put in to see the doctor
a month ago and [had not] been called yet for problems with
elbow an [sic] calve [sic]. Now I have skin irritation and I
would like to see the nurse." Id. Plaintiff
requested another medical appointment on April 10, ...