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Peterson v. Barksdale

United States District Court, W.D. Virginia, Roanoke Division

July 11, 2017

TROY PETERSON, Plaintiff
v.
E. BARKSDALE, et al., Defendants

          MEMORANDUM OPINION

          Pamela Meade Sargent United States Magistrate Judge

         The plaintiff, Troy Peterson, ("Peterson"), an inmate incarcerated at Red Onion State Prison, ("Red Onion"), in Pound, Virginia, and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendant prison officials, all of whom are employees of the Virginia Department of Corrections, ("VDOC"), violated his Eighth Amendment rights by providing inadequate nutrition, resulting in weight loss and health problems. Peterson seeks compensatory and punitive damages and injunctive relief ordering the defendants to provide a healthy vegetarian diet of at least 2, 000 calories a day. This case is before the court on the Defendants' Motion For Summary Judgment. (Docket Item No. 24), ("the Motion"). Peterson has responded to the Motion, (Docket Item No. 27), and none of the parties has requested a hearing on the Motion, making it ripe for disposition. The Motion is before the undersigned magistrate judge upon transfer by consent of the parties pursuant to 28 U.S.C. § 636(c)(1). For the reasons that follow, the Motion will be granted, and summary judgment will be entered in favor of all of the defendants on Peterson's § 1983 claims.

         I. Facts[1]

         Peterson is a VDOC inmate currently, and at all times relevant to his Complaint, [2] housed at Red Onion. In his Complaint, he claims that he has been denied adequate nutrition, stating that the meal trays do not contain the correct foods or that they do not amount to 2, 000 daily calories. Instead, Peterson claims the inmates are receiving only 1, 000 calories or less daily. Peterson claims that the vegetarian trays are unhealthy, and there is no vegetarian menu. Instead, the meat is substituted with beans. Peterson claims that, as a result of inadequate nutrition, he has lost 40 pounds in six months, despite eating his entire tray. He claims that he cannot maintain his health, noting weight loss, sickness and rashes. In his Amended Complaint, Peterson describes the defendants' various duties. Specifically, he states that E. Barksdale is the Warden at Red Onion, and he did nothing even after his complaints were reported to him many times. Peterson stated that P. Scarberry, the Director of Food Services at Red Onion, "runs the kitchen" at Red Onion and that she must "ok" all the trays/meals. Peterson states that Natarcha Gregg, the Dietician for the VDOC, "made the menu."

         In support of the Motion, the defendants have supplied sworn affidavits from Gregg, Scarberry and J. Bledsoe, the Head Nurse at Red Onion. (Docket Item Nos. 25-1 to 25-3.) They also have provided various menus for specific relevant time periods, (Encl. A to Docket Item No. 25-1), Peterson's Common Fare Agreement and a summary of his Meal Preference, (Encls. A and B to Docket Item No. 25-2), and relevant medical records. (Encl. A to Docket Item No. 25-3.) Peterson has been incarcerated at Red Onion since March 11, 2015. (Docket Item No. 25-1, ("Gregg Affidavit"), at 1). All VDOC facilities follow the Master Menu and adhere to portions indicated thereon. (Gregg Affidavit at 1.) Meal planning and preparation considers food flavor, texture, temperature, appearance and palatability. (Gregg Affidavit at 1.) Portion control is used in meal planning, preparation and service in order to prevent plate waste and leftovers. (Gregg Affidavit at 1.) Portions are served in those quantities indicated on the Master Menu, and the food served to offenders also is served to staff. (Gregg Affidavit at 1-2.) According to Gregg, portion control is enforced for both staff and offenders. (Gregg Affidavit at 2.) The Master Menu is a four-week rotating menu that ensures that nutritionally adequate menus are made available as approved by the VDOC Dietician. (Gregg Affidavit at 2.) An alternate/vegetarian entree for each meal also is indicated on the Master Menu. (Gregg Affidavit at 2.) According to Gregg, the average daily calorie count for three meals from the Master Menu is 2, 600 to 2, 700 calories. (Gregg Affidavit at 2.) Gregg, as the VDOC Dietician, analyzes the VDOC menus and certifies that they meet or exceed the Recommended Dietary Allowances as defined by the Food and Nutrition Board of the National Academy of Sciences. (Gregg Affidavit at 2.) She stated that VDOC offenders are allowed the privilege to purchase snacks and other food items from the institutional commissary, but that an offender in segregation may not have access to the same. (Gregg Affidavit at 2.) Therefore, she stated that an offender in segregation would need to eat all items on his tray for every meal to obtain the 2, 600 to 2, 700 daily calories. (Gregg Affidavit at 2.)

         Peterson was approved to receive the Common Fare diet on May 24, 2016, at Red Onion. (Gregg Affidavit at 2.) Common Fare is an appropriate religious diet for offenders whose religious dietary needs cannot be met by the Master Menu. (Gregg Affidavit at 2.) The Common Fare menu is based on a 14-day cycle and meets or exceeds minimum daily nutritional requirements. (Gregg Affidavit at 2.) The planned Common Fare menu may not be changed at the facility level, except where seasonal availability of produce items warrants that substitutions be made. (Gregg Affidavit at 2.) All three daily meals on the Common Fare diet yields a 2, 600 to 2, 700 total daily caloric value with 105 to 110 grams of protein, which is the same as the Master Menu. (Gregg Affidavit at 2-3.) Gregg stated that she had no knowledge that Peterson had not received adequate food portions during his confinement at Red Onion. (Gregg Affidavit at 3.)

         In her affidavit, P. Scarberry, the Director of Food Services at Red Onion, states that food service records reflect that Peterson has been on a nonmeat, or meat alternative, diet since April 1, 2016, and on May 25, 2016, he began receiving the Common Fare diet. (Docket Item No. 25-2, ("Scarberry Affidavit"), at 1-2). The nonmeat tray is prepared from the Master Menu, with the meat entree being replaced with another option. (Scarberry Affidavit at 2.) For the breakfast meal, two ounces of breakfast meat is replaced with the same amount of cheese or peanut butter, at the manager's discretion. (Scarberry Affidavit at 2.) Lunch and dinner consists of beans (VA cup) or a soy patty on the Common Fare menu. (Scarberry Affidavit at 2.) Only the entree is replaced, with the remainder of the original menu being followed. (Scarberry Affidavit at 2.) The caloric value of the nonmeat tray, the regular meal tray and the Common Fare diet are the same. (Scarberry Affidavit at 2.) Substitutions are rarely made on the Common Fare menu. (Scarberry Affidavit at 2.) The only meat on the Common Fare menu is tuna, and any other food with a meat-like appearance is soy based. (Scarberry Affidavit at 2.) On March 2, 2016, Peterson signed a Common Fare Agreement, stating, "This program provides me with an appropriate religious diet that meets or exceeds minimum daily nutritional requirements." (Scarberry Affidavit at 1; Encl. A to Scarberry Affidavit.)

         Scarberry stated that, as the Director of the kitchen, she does not look at every tray served, but she performs many daily spot checks on trays. (Scarberry Affidavit at 2.) The Food Service Managers check all trays for each meal. (Scarberry Affidavit at 2.) Additionally, there are many outside inspections where the meals at Red Onion are checked by the VDOC Regional Director of Food Services, during which quality control reports are completed indicating that the food is being prepared and the portions are accurately served in accordance with the menus provided by Gregg. (Scarberry Affidavit at 2.) Scarberry stated that she had no reason to believe that Peterson is not receiving an adequate amount of calories, as his meals are planned and prepared in accordance with VDOC policy. (Scarberry Affidavit at 2-3.)

         A Meal Preference summary, dated March 29, 2017, reflects that, on April 1, 2016, Peterson began the meat alternative diet, on May 25, 2016, he began the Common Fare meat alternative diet, and on August 25, 2016, he began the no tuna Common Fare diet. (Encl. B to Scarberry Affidavit).

         J. Bledsoe, R. N.C. A., the Head Nurse at Red Onion, also submitted an affidavit to the court, to which several of Peterson's medical records were attached. (Docket Item No. 25-3, ("Bledsoe Affidavit")). When Peterson arrived at Red Onion on March 11, 2015, he was 5 feet 9 inches tall and weighed 188 pounds. (Bledsoe Affidavit at 1; Encl. A to Bledsoe Affidavit at 77.) On October 13, 2015, he weighed 180 pounds. (Encl. A to Bledsoe Affidavit at 71.) When Peterson saw the physician on December 8, 2015, after a nurse referral due to an incident in which he allegedly fell in his cell on December 6, 2015, he stated, "I don't eat because of religion." (Bledsoe Affidavit at 1; Encl. A to Bledsoe Affidavit at 68.) He stated that he was not on hunger strike, but "I just don't eat my meals ... not going to be dishonest to myself." (Bledsoe Affidavit at 1; Encl. A to Bledsoe Affidavit at 68.) His weight was recorded as 160 pounds at that time. (Bledsoe Affidavit at 1.) On January 14, 2016, Peterson's weight was 159 pounds. (Bledsoe Affidavit at 1; Encl. A to Bledsoe Affidavit at 63.) He again stated that he was not eating due to his religion, and he stated that he ate a natural diet, also noting that he did not like beans because he had a sensitive stomach. (Bledsoe Affidavit at 1-2; Encl. A to Bledsoe Affidavit at 63.) Peterson expressed his desire for a peanut butter diet instead of beans. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 63.) He also stated that he wanted a diet from Medical. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 63.) Peterson requested a Common Fare diet. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 62.) The physician informed Peterson that there is no natural diet and indicated that Peterson was not losing muscle mass. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 62.) On January 26, 2016, the physician saw Peterson for persistent right side pain. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 59.) It was noted that Peterson had recent labs which tested positive for Hepatitis C virus. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 59.) His vital signs were stable. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 59.) The physician noted that Peterson was a difficult inmate with diet-related and other requests. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 59.)

         On February 3, 2016, Peterson was seen at nurse's sick call claiming that he was having pain in the liver and stomach and could not see out of his left eye. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 58.) Peterson stated "I have Hep C the pain is from that." (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 58.) He also stated "Made me lose 40 [plus] pounds, " "I can't eat" and "Can't see out of left eye." (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 58.) The nurse referred Peterson to the physician. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 58.) On February 5, 2016, Peterson was seen by medical staff and stated that he drank chemicals as a child, experienced liver pain and was served beans all the time due to his religion. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 57.) Peterson requested a diet change, stating that the chemicals gave him a sensitive stomach. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 57.) During this visit, Peterson's weight was recorded at 164 pounds. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 57.) On May 3, 2016, Peterson was seen during nurse's sick call for complaints of chest pain. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 54.) On examination, Peterson's vital signs were normal, and he was in no distress. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 54.) On May 13, 2016, Peterson was seen at sick call for stomach pain. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 53.) The nurse noted that he was not in distress and was talking with staff, kicking the cell door and screaming. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 53.) He was referred to the doctor for evaluation. (Bledsoe Affidavit at 2; Encl. A to Bledsoe Affidavit at 53.) On May 17, 2016, Peterson saw the physician for intermittent right upper quadrant pain since December. (Bledsoe Affidavit at 3; Encl. A to Bledsoe Affidavit at 53.) The doctor noted a history of hepatitis and psychiatric issues. (Bledsoe Affidavit at 3; Encl. A to Bledsoe Affidavit at 53.) Peterson stated that he was "not out here about beans" but with beans it is the worst. (Bledsoe Affidavit at 3; Encl. A to Bledsoe Affidavit at 53.) The doctor explained the lab results to Peterson and noted no acute changes to Peterson's health. (Bledsoe Affidavit at 3; Encl. A to Bledsoe Affidavit at 53.)

         On May 19, 2016, the doctor wrote an extension of his May 17, 2016, entry, stating, in part, as follows:

This meeting with inmate Peterson was difficult as follows. His attitude was ignorant, demanding, not helpful, litigious. I felt his medical statements were rehearsed [and] limited. Ex. 'I have pain here' (RUQ) no mention of time, character, associated [signs or symptoms], only the word 'extreme.' I had to ask about [nausea, vomiting, diarrhea]. His statements include religion related to beans [and] prior Fla [Florida] DOC testing 'ie samples' which were [and] are not in this chart. His statement changed from medical and became litigious describing his list of sick calls [and] what his lawyers said about his hepatic profile. He smiled when I stated this was a litigious meeting. Vital signs are stable, physical exam is negative for acute changes. His labs following his HCV are [checked] 6 [months] with a present APRI = 0.471, x-rays are unremarkable of the cervical, thoracic and lumbar. Extensive past medical histories from [Florida], [Minnesota] and [Massachusetts] show the diagnosis of HCV [and] extensive psych, history. His care is ongoing physically. He is stable presently, X-ray [and] labs have been ordered and he's monitored 24 hrs./day. Next month at another 6 mos. interval a CMC will be done in the ongoing HCV evaluation. Even in this situation I really try to correctly diagnose and treat everyone in spite of the false, self-serving, manipulating daily complaints. Sometimes a diagnosis takes several test[s].

(Bledsoe Affidavit at 3; Encl. A to Bledsoe Affidavit at 51-52.) On July 24, 2016, Peterson's weight was recorded as 160 pounds. (Encl. A to Bledsoe Affidavit at 47.) On August 17, 2016, Peterson's weight was 161 pounds, and in an August 26, 2016, note, the nurse indicated that Sergeant Large reported to the Medical Department that Peterson had missed five meals at breakfast. (Bledsoe Affidavit at 4; Encl. A to Bledsoe Affidavit at 44.) On September 13, 2016, Peterson's weight was 170 pounds. (Bledsoe Affidavit at 4; Encl. A to Bledsoe Affidavit at 41.) On October 18, 2016, during an appointment with the doctor, Peterson asked to be removed from all medications. (Bledsoe Affidavit at 4; Encl. A to Bledsoe Affidavit at 35.) He weighed 170 pounds at that time. (Bledsoe Affidavit at ...


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