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Morris v. Carey

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

February 14, 2018

TERAH C. MORRIS, Plaintiff
DR. ELISABETH CAREY, et al., Defendants


          Pamela Meade Sargent United States Magistrate Judge.

         The plaintiff, Terah C. 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 his serious medical needs, in violation of Eighth Amendment rights, by failing to provide adequate mental health and medical treatment to Morris for gender identity disorder, (“GID”). This case is before the court on the defendants' motions to dismiss, (Docket Item Nos. 36, 38, 47) (“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 the Motions be granted in part and denied in part.

         I. Facts

         Morris has sued the following defendants: Dr. Elisabeth Cary, [1] Chief Psychiatrist for the State of Virginia; Dr. Denise Malone, Chief Psychologist for the State of Virginia; Frederick Schilling, [2] Health Services Director; Dr. William Lee, Western Regional Mental Health Clinical Supervisor; Earl R. Barksdale, Previous Warden; Donnie L. Trent, II, M.Ed., B.S.N, Psychology Associate I, Qualified Mental Health Professional; Terrence M. Huff, M.Ed., Psych II, Qualified Mental Health Professional Senior; T. Buchanan, M.Ed., Psychology Associate I, Qualified Mental Health Professional; Stephanie C. Fletcher, M.Ed., Psychology Associate I, Qualified Mental Health Professional; Chelsea Adams, [3]M.Ed., Psychology Associate I, Qualified Mental Health Professional; J. Artrip, Assistant Warden; Rick Saylor, [4] M.Ed., Psych II, Qualified Mental Health Professional Senior; Vicky Phipps, RNCB; D. Still, Security Captain; Larry Ross Collins, Security Lieutenant; and Dr. Everett Ellison McDuffie, Contractual Psychiatrist.[5]

         In the Complaint, Morris alleged that he has been denied treatment for GID for approximately two years in violation of his Eighth Amendment right to be free from cruel and unusual punishment. The Complaint is a stream of consciousness recital of factual allegations that is not organized by defendant, event or date. The majority of the allegations concern defendant Trent's actions. In fact, Morris's complaint provides scant facts with regard to several of the defendants. A more detailed summary of Morris's specific allegations against each specific defendant is set out below.

         In the Complaint, Morris stated:

I've put in request after request, and wrote letter after letter trying to receive hormonial [sic] treatment & therapy for my self-reporting [sic] gender identity disturbances by also [threatening] or attempting commitment of suicide due to me being reminded of my feeling of sadness, anxiety, depression, disconnect and self-hatred about my body and gender because the prison officials say[] the information/documents are inaccurate, there[']s no medical records at all claiming I ever received any gender-affirming health care and that policy says you have to be on hormone pills or receiving hormonial[sic] treatment therapy prior to incarceration[.] For a year and a half I fought trying to receive help also through litigation since …. December 2015. … [D]efendants knew … about my “serious medical need” and failed or otherwise [are] still failing to respond to my serious medical need by also refusing to provide me with any treatment or examine me and by not providing me an ideal individualized medical/mental health evaluation is unconstitutional…. [D]efendants violated my Eighth Amendment Constitutional rights for the deliberate indifferent in denying me mental health and medical care….

(Complaint, (Docket Item No. 1 at 14)).

         The correctional defendants- all defendants except Dr. Cary, Dr. Lee and Dr. McDuffie - also have provided the court with an Affidavit from J. Messer, the Institutional Ombudsman at Red Onion. (Docket Item No. 39-1, (“Messer Affidavit”)). According to Messer, VDOC Operating Procedure, (“OP”), 866.1 sets out the Offender Grievance Procedure. (Messer Affidavit at 2-4.) Messer stated that OP 866.1 requires complete exhaustion. (Messer Affidavit at 3.) To completely exhaust an issue under OP 866.1, an inmate must file an Informal Complaint form, followed by a formal Grievance, and, if dissatisfied with results, the inmate must appeal the decision received to the highest available level. (Messer Affidavit at 3-4.) The records provided by Messer show that Morris filed Regular Grievance No. ROSP-16-REG-00436 dated October 30, 2016, which was received November 2, 2016, by the Grievance Department. (Messer Affidavit at 21.) Morris attached Informal Complaint form No. ROSP-16-INF-01894 to this Regular Grievance.

         Morris's Informal Complaint was dated October 10, 2016, and it stated:

My complaint is I'm being denied the proper & adequate [treatment] for my mental health history and since I'm deliberately being denied the diagnosis therefore I'm being left on mental health code #2 and not receiving the proper & adequate treatment for the following: … serious medical need for my self reporting … gender identity disorder. I am a victim of sexual, physical, emotional trauma…. I have a history of psychiatric hospitalization & self-mutilator & hallucinator. Dr. Carey, Dr. McDuffie, Dr. Lee, Dr. Malone, D. Trent, S. Fletcher, C. Adams, R. [Salyor], Dr. Ahson are causing me … emotional distress & mental anguish by refusing me the proper & adequate diagnosis [especially] for my gender Identity disorder.

(Messer Affidavit at 22.) Defendant Huff responded to this Informal Complaint on October 19, 2016, stating: “You are currently being monitored by your QMHP and services are provided as warranted. We will continue to seek guidance in providing services.” (Messer Affidavit at 22.)

         Morris's Regular Grievance No. ROSP-16-REG-00436 stated:

I'm being denied mental health treatment which is causing me tremendous emotional distress & mental anguish. The Qualified Mental Health Professional D. Trent for the Building I'm currently being housed [in, ] he only talks to me for about 5 minutes and then he ends the conversation. On Friday[, ] October 21, 2016[, ] I was telling him I was gonna kill myself … and jump off the sink … he laughs and tries to justify so then they take me to medical and put me in 5 points. So on Saturday Ms. McCannon comes and I tell her I still want to kill myself so they keep me down. So on Sunday she asks again. I say the same thing so then she makes some calls and force me up and put me on constant watch. So on Monday she comes back[, ] I tell her the same thing. She already had the paper & took me off. So on Tuesday [T]rent comes and takes me off of 15 [minute] watch. Huff tells me & him that [they're] not gonna tie me down in a camera cell, [they're] gonna do it in C-Building cause they don't like the idea I'm not being monitored. I'm not even getting full 45 [minute] to an hour office visit.

(Messer Affidavit at 21.) Under the Section “What action do you want taken?” Morris wrote: “I want to be treated for my mental health illnesses like a normal patient and/or client would instead of being treated like a prisoner.” (Messer Affidavit at 21.)

         It appears that Assistant Warden J. Artrip responded to Morris's Grievance at Level I on November 18, 2016, and informed Morris that he was receiving services “as required by operating procedure.” (Messer Affidavit at 23.) Morris appealed on November 21, 2016, writing:

There's no explanation as to why these Qualified Mental Health Professionals are continuously denying me my hormonial[sic] treatment for my self-reporting gender identity disturbances as well as to be seen by a psychiatrist or these mental health people not making arrangements for me to be seen by an unbiased outside doctor for examination per court order. The emotional distress & mental anguish that these people are causing me is cruel and unusual punishment.

(Messer Affidavit at 23.) At Level II, Morris's Grievance, again, was considered unfounded and no relief offered. (Messer Affidavit at 24.) The Level II response noted that Level II was the last level of appeal for Morris's complaint. (Messer Affidavit at 24.)

         II. Analysis

         Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In Bell Atl. Corp. v. Twombly, the Supreme Court stated that “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). The “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted). Additionally, the Court established a “plausibility standard” in which the pleadings must allege enough to make it clear that relief is not merely conceivable but plausible. See Twombly, 550 U.S. at 555-63.

         The Court further explained the Twombly standard in Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009):

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. … Second, only a complaint ...

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