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Huffman v. McCarthy

United States District Court, W.D. Virginia

September 29, 2017

ROBERT C. HUFFMAN, Plaintiff
v.
DR. McCARTHY, et al., Defendants

          MEMORANDUM OPINION

          Pamela Meade Sargent United States Magistrate Judge.

         The plaintiff, Robert C. Huffman, (“Huffman”), an inmate formerly incarcerated at Pocahontas State Correctional Center, (“PSCC”), [1] and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants, all of whom are employees of the Virginia Department of Corrections, (“VDOC”), or are VDOC contracted medical service providers, have been deliberately indifferent to his serious medical needs, in violation of his Eighth Amendment rights. Huffman seeks monetary and injunctive relief. This case is before the court on Huffman's motions for preliminary injunctive relief, (Docket Item Nos. 9, 31, 55), defendant Henry Ponton, Jr.'s, Motion To Dismiss, (Docket Item No. 13), [2] and the defendants' motions for summary judgment claiming Huffman's claims should be dismissed for failure to exhaust his administrative remedies, (Docket Item Nos. 10, 25). An evidentiary hearing was held before the undersigned on June 26-27, 2017. Based on the evidence before the court, I will enter summary judgment in the defendants' favor.

         I. Facts[3]

         Huffman is a VDOC inmate formerly housed at PSCC. He claims that he has been denied necessary medical treatment for pudendal nerve entrapment, (“PNE”). At the evidentiary hearing, Huffman testified that he had suffered from PNE or neuralgia for about 20 years as a result of an old work injury. He said that he had undergone numerous treatments, including surgeries, nerve blocks and botox injections, in an effort to get his condition to a manageable state. He testified that sitting on hard surfaces without a donut cushion aggravated his problem and that hot water therapy eased his pain.

         In support of their motions for summary judgment, the defendants have supplied a sworn affidavit from C. Smalling, the Human Rights Advocate at PSCC, a copy of Operating Procedure, (“OP”), 866.1, which governs the Offender Grievance Procedure, and a copy of Huffman's grievance file. (Docket Item No. 26-1) (Smalling Affidavit). According to Smalling, as Human Rights Advocate at PSCC, she is responsible for maintaining grievance files on offenders housed at PSCC. Smalling stated that OP 866.1 provides a mechanism by which offenders resolve complaints, appeal administrative decisions and challenge the substance of procedures. (Encl. A to Smalling Affidavit, (“OP 866.1”), at 1, 5.) All issues are grievable except those pertaining to policies, procedures and decisions of the Virginia Parole Board, disciplinary hearings, state and federal court decisions, laws and regulations and other matters beyond the control of the VDOC. (Smalling Affidavit at 2; OP 866.1 at 9.)

         According to Smalling, grievances which do not meet the filing requirements of OP 866.1 are returned to the offender within two working days from the date of receipt, noting the reason for return on the intake section of the grievance form. (Smalling Affidavit at 2; OP 866.1 at 8.) The offender is instructed how to remedy any problems with the grievance when feasible. (Smalling Affidavit at 2.) A copy is made of all grievances returned to the offender with the justification for return noted on the second page of the grievance form. (Smalling Affidavit at 2-3.) If an offender wishes review of the intake decision on any grievance, he may send the grievance to the applicable Regional Ombudsman within five calendar days of receipt for a determination. (Smalling Affidavit at 3; OP 866.1 at 8.) There is no further review of the intake decision. (Smalling Affidavit at 3; OP 866.1 at 8.) A review of OP 866.1 shows that it requires complete exhaustion. OP 866.1 states:

An offender meets the exhaustion of remedies requirement only when a Regular Grievance has been carried through the highest eligible level of appeal without satisfactory resolution of the issue.
… If a Regular Grievance does not meet the criteria for acceptance and review by the Regional Ombudsman does not result in intake into the grievance process, the issue must be resubmitted in accordance with the criteria for acceptance. The exhaustion of remedies requirement will be met only when the Regular Grievance has been accepted into the grievance process and appealed through the highest eligible level without satisfactory resolution of the issue.

(OP 866.1 at 6.)

         Prior to submitting a regular grievance, the offender must demonstrate that he has made a good faith effort to informally resolve his complaint, which may be accomplished by submitting an informal complaint to the Grievance Department at the appropriate institution. (Smalling Affidavit at 2; OP 866.1 at 6.) The informal complaint will then be forwarded to the appropriate department head. (Smalling Affidavit at 2.) Prison staff should respond to an informal complaint within 15 calendar days to ensure that informal responses are provided prior to the expiration of the 30-day time period in which an offender may file his regular grievance. (Smalling Affidavit at 2; OP 866.1 at 7.) Regular grievances are to be submitted within 30 days from the date of the occurrence/incident. (Smalling Affidavit at 2.) Only one issue may be addressed per grievance. (Smalling Affidavit at 2; OP 866.1 at 7.) The grievance must include any required documentation, including the informal complaint, showing the offender's attempt to informally resolve the issue. (Smalling Affidavit at 2; OP 866.1 at 7.)

         There are three possible levels of review available for regular grievances that are accepted at intake. (Smalling Affidavit at 3; OP 866.1 at 8.) Level I reviews are conducted by the Warden or Superintendent of the facility where the offender is located. (Smalling Affidavit at 3; OP 866.1 at 9.) If the offender is dissatisfied with the Level I determination, he may appeal to Level II. (Smalling Affidavit at 3.) Level II reviews are conducted by the Regional Administrator, Health Services Director or Chief of Operations for Offender Management Services or Superintendent for Education. (Smalling Affidavit at 3; OP 866.1 at 9.) For most issues, Level II is the final level of review. (Smalling Affidavit at 3.) For those issues appealable to Level III, the Chief of Corrections Operations or Director of the VDOC conducts a review of the regular grievance. (Smalling Affidavit at 3; OP 866.1 at 10.) The time limit for issuing a Level I response is 30 days, 20 days for a Level II response and 20 days for a Level III response. (Smalling Affidavit at 3; OP 866.1 at 10.) Expiration of the time limit without issuance of a response at any stage of the process automatically qualifies the grievance for appeal to the next level of review. (Smalling Affidavit at 3; OP 866.1 at 11.)

         Smalling stated that she had reviewed the grievance records for Huffman and determined that he did not submit any regular grievances that were accepted at intake regarding denial of necessary medical treatment for his PNE. (Smalling Affidavit at 5.) She, therefore, concluded that Huffman had not exhausted his administrative remedies with regard to the issues pending before the court. (Smalling Affidavit at 5.)

         Smalling also testified at the evidentiary hearing that issues regarding inmate medical treatment and devices were grievable. Smalling stated that Huffman was oriented to the Inmate Grievance Procedure when he arrived at PSCC and completed a form acknowledging that he did receive this orientation. (Defendants' Exhibit No. 5 (Docket Item No. 76-5)). Smalling testified that Defendants' Exhibit No. 6, (Docket Item No. 76-6), was the Grievance Procedure portion of the Offender Orientation Manual given to Huffman when he was transferred to PSCC.

         In her testimony, Smalling admitted that Huffman filed an Informal Complaint regarding his medical condition on May 24, 2014. (Plaintiff's Exhibit No. 5.) The Informal Complaint form indicated that it was received by the Medical Department on May 26, 2016, and that it was responded to by Nurse C. Cline on the same day that it was received. Smalling admitted that Huffman filed a Regular Grievance on June 22, 2016, (Plaintiff's Exhibit No. 6), which she rejected at intake as being untimely filed. (Plaintiff's Exhibit No. 7). Smalling said that she rejected the Grievance as being untimely filed because in his Informal Complaint Huffman complained regarding a change in his medical location code, which occurred when he was transferred to PSCC, more than 30 days prior to filing the Grievance. Smalling conceded that, in the section where Huffman listed the action he wanted taken in response to his Grievance, Huffman did not seek any change in his medical location code. Instead, he sought medical treatment for his PNE and a donut cushion.

         In his Complaint, Huffman stated that he had exhausted his administrative remedies with regard to his claims, in that he had filed an informal complaint form regarding his claims on May 24, 2016, which did not grant the relief requested. He then filed a regular grievance form on June 22, 2016, which was rejected as untimely. He then appealed this decision on intake to the Regional Ombudsman. The Ombudsman upheld the intake decision. Huffman does not allege that he filed any other informal complaints and/or regular grievances related to his § 1983 claims contained in his Complaint.

         Huffman testified that he came into VDOC custody in February 2016 and was transferred to PSCC in April 2016. He said that, prior to arriving at PSCC, he was held at VDOC's facility in Dillwyn. Huffman said that he received a physical examination upon his arrival at Dillwyn, and he was housed in the medical unit there. Huffman said that he was given hydrocodone, which he had taken for years, to manage his pain, and he was allowed to sit on a pillow while at Dillwyn.

         Huffman stated that, when he arrived at PSCC on April 6, 2016, he was told that, “per DOC policy, ” he would be tapered off his narcotic medication. Huffman's DOC medical file supports this testimony. (Plaintiff's Exhibit No. 2 at 1 (Docket Item No. 73-2 at 1)). Huffman's medical record notes that a review of his medical record was conducted on April 7, 2016, and his medical location code was changed to an “A.” (Plaintiff's Exhibit No. 2 at 2.) Huffman testified that he was housed in medical isolation for the first two weeks he was housed at PSCC. He said that he was told that he could not leave medical isolation until he had been off of narcotic medication for eight days. Huffman said that he refused his pain medicine in an effort to get out of medical isolation.

         Huffman testified that the first time he saw Dr. Matthew McCarthy at PSCC, Dr. McCarthy told him “don't curse me because I took your pain medication, they won't allow it here at Pocahontas.” Huffman said that Dr. McCarthy wanted to prescribe antiseizure and antidepressant medication, but he informed Dr. McCarthy that those medications had made his symptoms worse and had caused urinary tract problems in the past. Huffman also said that those medications made his face, arms and legs go numb and tingle and caused him difficulty breathing. Huffman said that, at this first meeting, he requested a donut cushion to sit on. Huffman said that Dr. McCathy told him that he, Huffman, should not have been transferred to PSCC because the prison's policy and pharmaceutical formulary would not allow him to treat Huffman's PNE.

         Huffman testified that he was transferred to general population without a donut cushion to sit on and with only Tylenol for pain relief. Huffman stated that he began to experience severe pain and numbness in his groin area and bladder problems as a result. Huffman said that he saw Dr. McCarthy again on May 18, 2016, and Dr. McCarthy told him there was really nothing he could do for him, other than advise him to take Tylenol for pain. Huffman said that he requested that Dr. McCarthy recommend that he receive a donut cushion to sit on, and Dr. McCarthy refused.

         Huffman testified that he filed an Informal Complaint form on May 24, 2016, complaining about his lack of medical treatment. The Informal Complaint, (Plaintiff's Exhibit No. 5 (Docket Item No. 73-5)), stated:

I am upset with how my medical conditions just seem to be ignored at this facility. I suffer a very rare and very painful (in many ways) neurological disorder, called (PNE) pudendal nerve entrapment. Feel sure I'm the only one in the system with this condition. I have been disabled for 17 [years] from … multiple surger[ies], multiple [doctors], hospitals, including the Mayo Clinic. Every other facility has tried to help me. I'm told here there is nothing that will be done for me. My problems just can't be ignored. Wish they could. Intake classified me as [medical] D lower bunk. That's been ignored here also. All [medications] taken. I don't know what is expected of me.

         On May 26, 2016, Nurse C. Cline responded: “Your medical location code is [an] A. You do not meet criteria for a bottom bunk order. Dr. McCarthy has offered pain medication to you and you declined.”

         Huffman testified that, at Dillwyn, he was housed on the lower tier. At PSCC, he was housed on the top tier and the top bunk. He said that the only pain medication he ever refused was Tylenol or ibuprofen. He said he refused this medication at pill call on occasion because he had purchased it from the commissary and had it available to take as necessary.

         Huffman testified that he saw Dr. McCarthy again on June 20, 2016, in severe pain and having bladder control problems. He said that he asked for a donut cushion and a lower bunk. He said that Dr. McCarthy told him that security would not allow him to have a donut cushion. Also, he said that Dr. McCarthy told him that “they” would not allow Huffman to have a bottom bunk, but Dr. McCarthy would never say who “they” were.

         Huffman testified that he filed a Regular Grievance Form on June 22, 2016, seeking medical treatment. (Plaintiff's Exhibit No. 6 ...


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