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Morris v. Carey

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

March 27, 2018

TERAH C. MORRIS, Plaintiff,
v.
DR. MEREDITH CARY, et al., [1] Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          NORMAN K. MOON UNITED STATES DISTRICT JUDGE.

         Terah C. Morris, a Virginia inmate proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants failed to provide him adequate medical treatment for gender identity disorder (“GID”). The defendants filed motions to dismiss, and I referred the matter to United States Magistrate Judge Pamela Meade Sargent for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

         The Magistrate Judge filed a report, finding that Morris failed to state a claim under § 1983 against Dr. Malone, Health Services Director Schilling, former Warden Barksdale, Assistant Warden Artrip, Nurse Phipps, Captain Still, and Lieutenant Collins because he failed to allege that these defendants acted personally in the alleged deprivation of his constitutional rights; and that Morris adequately pleaded a § 1983 claim of deliberate indifference to his serious medical needs against defendants Dr. Cary, Dr. Lee, Qualified Mental Health Professional (“QMHP”) Trent, QMHP Huff, QMHP Buchanan, QMHP Fletcher, QMHP Saylor, and Dr. McDuffie.[2] Accordingly, the Magistrate Judge recommends that I grant the motions to dismiss as to defendants Malone, Schilling, Barksdale, Artrip, Phipps, Still, and Collins but deny the motions to dismiss as to defendants Cary, Lee, Trent, Huff, Buchanan, Fletcher, Saylor, and McDuffie.[3] Morris and Dr. McDuffie filed timely objections to the Magistrate Judge's Report and Recommendation.

         I.

         Morris filed two objections. His first objection is to the Magistrate Judge's statement that Morris “alleged that he was held in five-point restraints until August 2, 2016.” His second objection is to the Magistrate Judge's finding that Morris failed to state a claim against Nurse Phipps. For the reasons stated herein, I will overrule both objections.

         I cannot discern a material, specific, or meritorious objection from Morris's first objection. He states that the Magistrate Judge's statement that Morris “alleged that he was held in five-point restraints until August 2, 2016, ” is “unduly burdensome considering that in [his] complaint, . . . [he] says that on August 2, 2016, . . . [he] asked [QMHP] Trent why [] the mental health personnel [] at Red Onion State Prison [] keep falsifying federal documents when ya[']ll write notes on me.” He also alleges that QMHP Trent responded by telling Morris that he has “a mental health diagnosis but overall [he] has a behavioral problem and [he is] not go[ing] to get what [he] wants because [they] don't see the feminine in [him].” The only defendant discussed in Morris's “objection” is QMHP Trent and the Magistrate Judge recommends that the motion to dismiss be denied as to Trent. It is unclear what Morris is actually objecting to from the Report and Recommendation. Accordingly, I will overrule the first objection.

         Morris's second objection is to the Magistrate Judge's finding that Morris failed to state a claim against Nurse Phipps and he again argues that it is “unduly burdensome.” In her Report and Recommendation, the Magistrate Judge noted that Morris alleged that Nurse Phipps forwarded Morris's November 13, 2016 request form to the mental health department. In his objection, Morris alleges that Nurse Phipps also responded to an informal complaint that he had filed in August 2015, wherein he “ask[ed] to be placed on hormone shots.” This allegation is not in Morris's complaint, and the informal complaint is not in the record of this case. However, I take judicial notice that the informal complaint was filed in another case of Morris's, Civil Action No. 7:15cv675, at Docket No. 3-2, 5. In the informal complaint, Morris writes:

I put in for a sick call on 8-23-15 about me getting back on my hormone shot and I was told Red Onion does not provide it per policy 038.3 I'm considered an intersex offender shall be given the opportunity to shower separately from other offenders it also states my own views shall be given serious consideration. [sic]

         Nurse Phipps responded to the informal complaint by stating, “You have normal male genitalia.

         There is no question that I can answer here. Your question regarding hormone shots and breast implants was previously answered.” As best as I can discern, Morris's second objection is attempting to argue that his allegation about Nurse Phipps's response to his informal complaint states a claim against Nurse Phipps and, therefore, she should not be dismissed from this action. Inasmuch as this allegation is not in Morris's complaint and the objection has no merit. Further, even if this allegation was in the complaint, without any further allegations against Nurse Phipps, it fails to state a viable claim as Morris has not sufficiently alleged that Nurse Phipps was deliberately indifferent to a serious medical need. See, e.g., Estelle v. Gamble, 429 U.S. 97, 105 (1976); Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011) (“While a court must accept the material facts alleged in the complaint as true, statements of bare legal conclusions ‘are not entitled to the assumption of truth' and are insufficient to state a claim.”); Brown v. Va. Dep't Corr., No. 6:07cv33, 2015 U.S. Dist. LEXIS 12227, at *8, 2009 WL 87459, at *13 (W.D. Va. Jan. 9, 2009) (inmates do not have a constitutionally protected right in the grievance procedure and, thus, there is no liability under § 1983 for a prison administrator's response to a grievance or appeal). Accordingly, I will overrule Morris's second objection.

         II.

         Dr. McDuffie also filed two objections. First, he objects to the Magistrate Judge's finding that he acted personally in violating Morris's constitutional rights. Second, he objects to the finding that Morris pleaded more than mere negligence in diagnosis and treatment. For the reasons stated herein, I will overrule both objections.

         As to the first objection concerning personal involvement, Morris alleged that on October 29, 2015, Dr. McDuffie “yelled” that Morris did not have a gender identity problem, told Morris that he did not want to hear Morris discuss the subject again, and told Morris to get “the hell out of” his office. Morris alleged that he requested hormone treatment from Dr. McDuffie on three different occasions in 2016, which he did not receive. Morris also alleged that in January 2017, Dr. McDuffie recommended that Morris be referred to an expert in diagnosing and managing individuals with GID. Finally, Morris alleged that Dr. McDuffie and other mental health treatment providers ultimately determined that appropriate treatment for him was a “monthly office visit.” Accepting all of Morris's allegations as true and drawing all reasonable inferences in favor of Morris, as I must, Erickson v. Pardus, 551 U.S. 89, 94 (2007), I conclude that he has sufficiently alleged that Dr. McDuffie was personally involved in denying Morris's constitutional rights. Accordingly, I will overrule Dr. McDuffie's first objection.

         Dr. McDuffie also objects to the Magistrate Judge's finding that Morris pled more than mere negligence against Dr. McDuffie. Reiterating arguments presented in his motion to dismiss, Dr. McDuffie argues that Morris failed to allege that Dr. McDuffie acted with deliberate indifference to Morris's need for treatment and that Morris's allegations amount to nothing more than negligence and a doctor and patient disagreement, neither of which are actionable under § 1983. However, like the Magistrate Judge, I read Morris's complaint to allege that Dr. McDuffie knew that Morris suffered from GID and that failing to treat him could lead to serious harm, but refused to diagnosis or treat Morris in order to avoid the Virginia Department of Corrections (“VDOC”) having to pay for the treatment or because the VDOC has an implicit policy not to provide such treatment. Accepting Morris's allegation as a true and drawing all reasonable inferences in the light most favorable to ...


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