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Morris v. Fletcher

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

February 13, 2018

TERAH MORRIS, Plaintiff
v.
MRS. FLETCHER, et al., Defendants

          REPORT AND RECOMMENDATION

          Pamela Meade Sargent, United States Magistrate Judge

         The plaintiff, Terah Morris, (“Morris”), 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”), or are contractual service providers at Red Onion, have been deliberately indifferent to serious medical needs, in violation of his Eighth Amendment rights, by failing to provide adequate medical treatment for gender identity disorder, (“GID”). In particular, the only claim remaining before the court is Morris's claim that the defendants, Dr. McDuffie, Dr. Smith, and V. Phipps, failed to provide him with hormone shots. See Order, Docket Item No. 198. This case is before the court on the Motion For Summary Judgment filed by Phipps, (Docket Item No. 230), the Motion For Summary Judgment filed by Dr. McDuffie, (Docket Item No. 232), the Motion For Summary Judgment filed by Morris, (Docket Item No. 239), and the Motion For Summary Judgment filed by Dr. Smith, (Docket Item No. 241), (collectively, “Motions”). None of the parties has requested a hearing on the Motions, making them ripe for disposition. The Motions are before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636(b)(1)(B). The undersigned now submits the following report, recommending that Morris's Motions be denied, the defendants' Motions be granted, and summary judgment be entered in the defendants' favor on Morris's remaining claim.

         I. Facts

         As stated above, Morris's only claim remaining is the claim that the defendants, Dr. McDuffie, Dr. Smith, and V. Phipps, failed to provide him with hormone shots for treatment of GID. Morris seeks monetary, injunctive and declaratory relief. In the verified Complaint, Morris wrote, in part:

… I finally seen Dr. McDuffie psychiatrist on 10-29-15 tried to explain to him what was going on and he yelled told me that he don't ever want to hear me discuss [GID] ever….
… While speaking with Mental Health I was asking Medical for service and Dr. Smith refused said that they don't provide hormone shot or pills that I look like a male to him[. H]e also stated he was going to guarantee me 6 months of life[. H]e never tried to diagnose me or anything so I wrote Mrs. Phipps … she told me that I have normal male genitalia that there is no question she can answer which is a violation[] of my Eighth Amendment cruel and unusual punishment.

(Docket Item No. 1 at 2-4.)

         In an Affidavit attached to his Complaint, Morris wrote:

On or about January 2015, I started putting in … asking about … hormone shot[s] because that's about the time they put me in population[.] I was told several times that they do not provide it. … … I wrote Ms. Phipps the head nurse here and [she] told me I have normal male [genitalia] that right there tells me that she does not have any experience with GID because if she did she definitely would have not said that[.] Dr. Smith who is the institutional [doctor] says he's gonna give me 6 months guaranteed life every time I see him he refuses to prescribe me stuff[.] Also I've been on suicide 3 [times] give or take[.] I just recently came off on the 25th of November 2015[.] They put me on because they intercepted a letter stating I was going to kill myself, etc.

(Docket Item No. 1-3 at 1-2.)

         Defendant Phipps has provided an Affidavit, (Docket Item No. 231-1) (“Phipps's Affidavit”), in support of her motion. Phipps's Affidavit stated, in part:

… As a registered nurse, I make no direct decisions regarding an offender's medical needs or appropriate course of treatment. I relied on the professional judgment of the institutional physicians and did not substitute my own judgment for their professional opinions concerning an offender's condition or treatment. In order for nursing staff at [Red Onion] to issue or administer any type of medical vaccination to an offender, there must be a written order from the institutional physician. Without the order or medical authorization in place, I cannot administer any type of medical vaccination to an offender. I do not have the authorization to do so. I reviewed Morris'[s] medical records and determined there was no order for hormone shots for Morris. If such an order existed, I would have provided the hormone shots. …

(Phipps's Affidavit at 1-2.)

         Defendant Dr. McDuffie has provided a Declaration, (Docket Item No. 233-4) (“Dr. McDuffie's Affidavit”), in support of his motion. According to Dr. McDuffie's Affidavit, Morris, at an October 29, 2015, appointment “abruptly reported her self-diagnosis of GID.” (Dr. McDuffie's Affidavit at 2.) Dr. McDuffie stated that he determined that Morris had no history of treatment for GID, no records supporting symptoms of GID, failed to present with GID symptoms and did not demonstrate or express any risk of harm due to GID. (Dr. McDuffie's Affidavit at 2.) He said that, during the appointment, Morris fixated on administrative complaints with the VDOC rather than focusing on psychiatric care and treatment. (Dr. McDuffie's Affidavit at 2.)

         Dr. McDuffie's Affidavit continued, in part:

…As the undisputed record provides, prior to her self-diagnosis of GID, Plaintiff did not once attempt to harm herself or report that she was intending on harming herself due to GID characteristics. Plaintiff did not demonstrate any GID symptoms prior to her self-diagnosis of GID. However, Plaintiff continuously and frequently demonstrated manipulative behavior for personal gain.
… Based on my experience as a psychiatrist and my knowledge of Plaintiff's frequent manipulative tendencies for personal gain and continued noncompliance with her medical care, I opined that Plaintiff was malingering GID, continued Plaintiff's current medications and ended the session.
… I concluded that Plaintiff's vague statements about GID were inadequate for a diagnosis the day of Plaintiff's first mention of GID, and I certainly did not assume Plaintiff was at risk of harm.
… Although I did raise my voice and end the session, I did not advise that Plaintiff should never bring up GID again, and in fact, I scheduled a follow-up with Plaintiff.
… After the October 29, 2015[, ] appointment, I continued to treat Plaintiff on numerous occasions and continued to assess her alleged GID based on her evolving symptoms. …

(Dr. McDuffie's Affidavit at 2-3.) Dr. McDuffie stated that GID affects people differently and treatment for GID is based on the individual. (Dr. McDuffie's Affidavit at 3.) He stated that appropriate treatment for GID must be determined individually and that working with a psychologist or psychiatrist should be part of every treatment for GID. (Dr. McDuffie's Affidavit at 3.) Dr. McDuffie stated that he had provided appropriate treatment to Morris based on the symptoms presented. (Dr. McDuffie's Affidavit at 4.) He further stated, “At no time was I deliberately indifferent to Plaintiff's medical needs, nor did I fail to provide care that I knew Plaintiff needed.” (Dr. McDuffie's Affidavit at 4.)

         Attached to Dr. McDuffie's Affidavit are a number of medical records, which he stated were true and accurate copies from Morris's Red Onion medical records. (Docket Item No. 233-1.) These medical records show that, on September 4, 2014, Morris reported hearing voices daily and that his psychiatric medication was not helping this symptom. (Docket Item No. 233-1 at 3.) Dr. McDuffie diagnosed Morris with stable chronic psychosis, as well as schizophrenia, rule out schizoaffective disorder. (Docket Item No. 233-1 at 3.)

         These records also show that, at some point while being held in the VDOC, Morris had been designated both as a High Risk Sexual Aggressor and a High Risk Sexual Victim. (Docket Item No. 233-1 at 4.) On September 11, 2014, Red Onion Qualified Mental Health Professional, (“QMHP”), Terrance Huff, M.Ed., noted that Morris was advised of these designations. (Docket Item No. 233-1 at 4.) He noted that Morris stated, “he felt he could be potentially victimized and may be aggressive towards another offender due to his bi-sexual tendencies. He stated he was ‘married' to another offender at his previous institution.” (Docket Item No. 233-1 at 5.) An October 15, 2014, Mental Health Services Progress Note reflected that Morris was seen by QMHP K. Wright, M.S., on monthly mental health rounds. (Docket Item No. 233-1 at 6.) Wright noted that Morris was calm and cooperative with euthymic mood, full affect, linear and logical thought process, no abnormal thought content, no reported perceptual disturbances, alert and oriented with no suicidal or homicidal ideations, adequate insight, good judgment and good impulse control. (Docket Item No. 233-1 at 6.) Morris requested a change in his psychiatric medication. (Docket Item No. 233-1 at 6.) On November 14, 2014, Dr. McDuffie noted that Morris was discharged from psychiatry because Morris was refusing psychiatric medications. (Docket Item No. 233-1 at 7.) On November 24, 2104, Morris requested to be placed back on psychiatric medications “because he feels he does need them.” (Docket Item No. 233-1 at 8.)

         The records show that Dr. McDuffie saw Morris again on January 7-8, 2015, because Morris wanted to resume psychiatric medication. (Docket Item No. 233-1 at 9.) Morris reported no suicidal or homicidal ideations, but an anxious mood. (Docket Item No. 233-1 at 9.) Dr. McDuffie diagnosed Morris with schizoaffective disorder and prescribed monthly prolixin decanoate injections. (Docket Item No. 233-1 at 9.) On February 19, 2015, Morris complained of hallucinations, nightmares and flashbacks to Huff. (Docket Item No. 233-1 at 10.) Huff noted that Morris's reported symptoms were not observable, did not appear to be in any distress, and he denied suicidal ideations. (Docket Item No. 233-1 at 10.)

         On February 25, 2015, Morris told QMHP C. Adams, M.Ed., that Morris was going on a hunger strike until moved back to a cell with his cellmate. (Docket Item No. 233-1 at 11.) Adams noted, “Offender voiced that he is having flashbacks from when he was a child and was abused and stated that he can't be alone. ‘Security said that I tried to fuck on my cellie and then they put me in a room and started hitting on me and slapping me around and all.'” (Docket Item No. 233-1 at 11.) Adams stated that Morris would not agree against self-harm and stated, “‘By tomorrow if I don't get what I want then I've got to do what I got to do.'” (Docket Item No. 233-1 at 11.) Adams noted that Morris's mood was irritable, with a full and restricted affect, but no abnormal thought content. (Docket Item No. 233-1 at 11.) Adams stated that Morris appeared tangential and manipulative during the assessment, and recommended that Morris be moved to a safety cell with metal/razor restrictions. (Docket Item No. 233-1 at 11.)

         On March 9, 2015, Morris reported an increase in audiovisual hallucinations and stress after being placed in restrictive housing. (Docket Item No. 233-1 at 12.) Morris also complained of audio hallucinations telling him to hurt himself. (Docket Item No. 233-1 at 12.) QMHP Huff noted, “It is likely Offender Morris (who stated he wasn't trying to manipulate me) was attempting to manipulate staff in order to be returned to [general population] sooner. His mood and affect were within normal limits, contrary to his statements; however, razor restrictions are warranted due to his veiled statements of self-harm.” (Docket Item No. 233-1 at 12.)

         On March 13, 2015, Dr. McDuffie saw Morris and noted a history of homosexuality, difficulty taking medication and psychosis. (Docket Item No. 233-1 at 13.) Morris specifically requested to receive depakote or liquid medication and continued to complain of auditory and visual perceptual disturbances. (Docket Item No. 233-1 at 13.) Dr. McDuffie diagnosed psychosis, not otherwise specified, and a personality disorder. (Docket Item No. 233-1 at 13.) He also noted, “possible he is feigning illness for a reason unknown at this time.” (Docket Item No. 233-1 at 13.) Dr. McDuffie saw Morris in follow-up on June 4, 2015. (Docket Item No. 233-1 at 14.) On this occasion, Morris denied any perceptual disturbances. (Docket Item No. 233-1 at 14.) Dr. McDuffie diagnosed schizoaffective disorder and personality disorder, not otherwise specified. (Docket Item No. 233-1 at 14.)

         QMHP S. Fletcher, M.Ed., saw Morris on Morris's request on June 9, 2015. (Docket Item No. 233-1 at 15.) Fletcher noted:

Offender reported that he would like to go back on his medication. He states that being in a single cell is causing him distress. He reports that while he has had several cell mates he feels he is being discriminated against due to his sexuality. He reports feeling out of place, and not fitting in in B1 pod. He reports hearing voices that are cussing him, and calling him names. … He denies any thoughts of self-harm or suicide.

(Docket Item No. 233-1 at 15.) Fletcher stated that Morris was cooperative and appeared physically healthy with no visible signs of injury or signs of psychosis. (Docket Item No. 233-1 at 15.)

         Dr. McDuffie saw Morris again on July 10, 2015, and he noted that Morris complained of suicidal thoughts. (Docket Item No. 233-1 at 16.) Dr. McDuffie noted that Morris told him that “he will become suicidal again if he does not get what he wants; he wants a cell partner because he says he hears voices when he is lonely.” (Docket Item No. 233-1 at 16.) Dr. McDuffie diagnosed Morris with a personality disorder, moderate suicide risk and history of psychosis. (Docket Item No. 233-1 at 16.) He stated that Morris was “manipulative.” (Docket Item No. 233-1 at 16.) Dr. McDuffie saw Morris in follow-up on July 16, 2015, and noted a history of psychosis and suicidality. (Docket Item No. 233-1 at 17.) He noted that Morris requested psychiatric medicines in injection or liquid form. (Docket Item No. 233-1 at 17.) Dr. McDuffie diagnosed psychosis and borderline personality disorder and ordered Risperdal injections for Morris. (Docket Item No. 233-1 at 17.) On August 14, 2015, Dr. McDuffie noted that Morris was not depressed, but still had episodic mood lability and seemed to be progressing in the then-current housing situation. (Docket Item No. 233-1 at 18.)

         QMHP Fletcher saw Morris on November 23, 2015, due to a letter in which Morris wrote, “I'm really on the verge of suicide.” (Docket Item No. 233-1 at 26.) Fletcher noted, “Offender admitted to writing the letter…. He reports that he did not intend for mental health to see it. He stated he was writing to get help from outside the institution with his wanting to become a woman.” (Docket Item No. 233-1 at 26.) Fletcher noted that Morris denied any suicidal or homicidal ideations or thoughts of self-harm. (Docket Item No. 233-1 at 26.) Fletcher noted that Morris appeared agitated, and Fletcher placed Morris on 15-minute watch with metal/razor/rigid/spork/pen restriction. (Docket Item No. 233-1 at 26.) QMHP J. Sykes, M.Ed., evaluated Morris on November 25, 2015, and Morris continued to deny any thoughts of suicide or self-harm. (Docket Item No. 233-1 at 27.) QMHP Adams released Morris from suicide precautions on November 30, 2015. (Docket Item No. 233-1 at 28.) Adams also noted that Morris stated, “I don't want to see the Psychiatrist anymore because the last time he yelled at me and kicked me out of the office.” (Docket Item No. 233-1 at 28.) Adams noted that Morris also stated, “I do want more office visits.” (Docket Item No. 233-1 at 28.)

         A December 21, 2015, medical note by S. Stallard, a licensed practical nurse, states that Dr. McDuffie would be notified that Morris was caught trying to pass six Wellbutrin ER pills to another inmate. (Docket Item No. 233-1 at 30.) The nurse noted that Morris was prescribed this medication daily. (Docket Item No. 233-1 at 30.) The record also contains notes that mental health workers met with Morris on January 21 and 27, 2016, for assessments based on Morris being placed on precautions. (Docket Item No. 233-1 at 37-38.) Neither report stated that Morris was experiencing any suicidal or homicidal ideations. (Docket Item No. 233-1 at 37-38.)

         A Mental Health Services Progress Note of an April 1, 2016, encounter between QMHP D. Trent, BSN, M.Ed., and Morris also is attached as an exhibit to Dr. McDuffie's Affidavit. (Docket Item No. 233-1 at 44-45.) On this Note, Trent wrote:

When contact was made by the QMHP[, ] the offender stated “when am I going to see you in an office again?” The QMHP [informed] Mr. Morris that the appropriate treatment for him has been determined to meet with him every 30 days and [as needed]. Mr. Morris became frustrated and said, “why”?. The QMHP explained how the QMHP had met with him in an office setting and that he had written a letter to Richmond that made several false accusations on it. The QMHP further explain[e]d that in order for the clinician to meet with him in an office setting a [witness] must be present and a release of information must be signed. The offender approved of this approach. He next became angry stating [that] none of the mental health professionals he has come into contact with “knows how to do their fucking jobs”. He added “doesn't your stupid fucking boss realize that I'm suing his ass? At this time you aren't being sued (talking to the QMHP), but if you keep fucking me around I'm gonna sue your ass too bitch.” At this time the QMHP ended the contact and walked away. The offender was still screaming and cursing.

(Docket Item No. 233-1 at 44.)

         Trent saw Morris again on April 8, 2016, and noted:

Mr. Morris asked “why haven't you pulled me to your office[?”] The QMHP informed Mr. Morris that he was recently seen in an office setting and he has several other offenders before him. Mr. Morris then stated “you are going to see me every day aren't you”? The QMHP informed the offender that the recommended support for his case is for him to be seen 1 time every month. Mr. Morris informed the clinician that he is suing several of the mental health clinician's and if QMHP didn't do what he asks he will be suing the QMHP as well. He also added “my situation is a very delicate one and is a severe medical issue.”

(Docket Item No. 233-1 at 46.) Trent noted that he responded to Morris's cell door on April 15, 2016, after Morris called out to him while he was making rounds. Trent noted:

Offender stated “have you heard any news on what I'm trying to accomplish”? The QMHP reminded the offender that his current treatment regimen is what has been agreed upon by the mental health department. Mr. Morris next asked if he can be seen in an office setting. He held up a book and displayed it to the QMHP and stated “This book is about being transgender and I have a whole bunch of symptoms I need to share with you regarding what I have read in this book.”

(Docket Item No. 233-1 at 48.)

         QMHP Trent noted that he visited Morris again at Morris's cell door on May 11, 2016. Trent's note of this encounter stated:

Offender was noted to be screaming loudly and banging on his cell door for the QMHP. He sounded to be in distress, so the QMHP made contact to ensure his safety. …
Upon arrival to his cell door Mr. Morris stated “you are going to pull me to your office right now.” The QMHP asked if he was having an emergency in which he stated “you are my psychologist and I am telling you that you have to see me”. The QMHP explained that he is scheduled to see the QMHP 1 time per month in office setting and that he was last seen on 4/25/2016. The QMHP also added that he is not on the list of offenders that need to be seen in office today. The QMHP also explained that those offenders scheduled for the day are not being pulled due to the QMHP being told that they do not have the available staff to pull offenders. Mr. Morris replied by saying “Listen, you and I need to get on the same page …. [Y]ou are here as my psychologist and what you fail to understand is I am not like all of these other [offenders] in here and once you get on the same page as me you will realize this. Furthermore, if you don't do what I say I am going to bang and scream all day to drive you crazy. … I will also be going on a hunger strike as well.” The QMHP requested that he share what his emergency is and he replied “I need to talk about my gender issue”. The QMHP informed him that best that can be done is for the QMHP to ...

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