United States District Court, W.D. Virginia, Roanoke Division
STEVEN R. DELK, Plaintiff,
v.
BRIAN MORAN, et al., Defendants.
MEMORANDUM OPINION
NORMAN
K. MOON UNITED STATES DISTRICT JUDGE.
Steven
R. Delk, also known as Ja-Quitha “Earth”
Camellia, a Virginia inmate proceeding pro se, filed
this civil rights action pursuant to 42 U.S.C. § 1983
alleging various violations of his constitutional rights
while housed at the Red Onion State Prison (“Red
Onion”).[1]Specifically, Delk alleges in his verified
complaint that certain officials denied him medical treatment
for serious mental health needs in violation of his Eighth
Amendment rights, and denied him
“post-deprivation” remedies in violation of his
Fourteenth Amendment rights. The defendants who filed a
motion to dismiss are as follows: Brian Moran, Secretary of
Public Safety; E.R. Barksdale, Warden of Red Onion; H.
Ponton, Regional Administrator for the Western Region of
Virginia Department of Corrections (“VDOC”); M.
Elam, Regional Administrator for the Western Region VDOC;
Pough, Regional Operations Officer for the Western Region of
VDOC; Durbin, Prison Rape Elimination Act (PREA) Coordinator
for VDOC; McDaniels, SIU Investigator; Morehart, former State
Inspector General; Farrington, PREA Coordinator at VDOC;
Messer, Grievance Coordinator at Red Onion; Parr, Regional
Ombudsman for the Western Region of VDOC; Dr. Malone, VDOC
Mental Health Director; N.H. Scott, VDOC Deputy Director of
Administrations; and Dr. McDuffie, psychiatrist employed by
Zafar Ahsan, M.D. and a contractual service provider at
Wallens Ridge. See Mot. to Dismiss, at 1-2, Docket
No. 64.[2]
Delk
responded to the motions to dismiss and this matter is ripe
for disposition. Upon review of the record, I conclude that
defendants' motion to dismiss must be granted as to
Messer, Elam, Parr, and Pough, granted without prejudice as
to Barksdale, Durbin, Fairington, Malone, McDaniels, Moran,
Morehart, Ponton, and N.H. Scott, Docket No. 63, and denied
in part and granted in part as to Dr. McDuffie, Docket No.
48.
I.
Delk
asserts a multitude of claims. Delk alleges that he
“has always identified as woman/male and was diagnosed
with gender dysphoria in 1987, ” taking testosterone
blockers, estrogen enhancers, and other self-prescribed
hormone medication. Delk alleges that he “has
continuously been denied meaningful [ ] mental health
treatment since 2013.” On March 21, 2015, he submitted
an informal complaint seeking mental health treatment, which
was denied. Delk alleges that Qualified Mental Health
Professional (“QMHP”) Huff denied Delk's
request for treatment on March 27, 2015, based on “his
personal decision” and not for any medical reason. On
April 6, 2015, Delk submitted a grievance challenging the
QMHP decision and again seeking mental health treatment.
Grievance Coordinator Messer denied the grievance on the
ground that seeking mental health treatment is a request for
services and, thus, cannot be grieved. Delk appealed the
intake decision on April 9, 2015, to Regional Ombudsman Parr,
but the intake rejection was upheld. Compl. ¶¶
31-34, 54 Docket No. 1.
While
Delk was seeking mental health treatment for his gender
dysphoria, he alleges he was subjected to ongoing sexual
abuse by correctional officers. Delk alleges Correctional
Officer Adams verbally and physically assaulted him, fondling
Delk, and offering “quid pro quo sexual
propositions” on a regular basis. Delk consistently
refused Adams' advances and, as a result, Adams
threatened Delk with bodily harm for rejecting him. On June
22, while Adams was the correctional officer in charge, Adams
referred to Delk as a “dumb ass nigger and dick sucking
nigger” and threatened to starve Delk. Following
Adams' threats, Delk reported Adams to Unit Manager
Turner. In fear of Adams, Delk alleges he wrote grievances,
informal complaints, letters, and verbally reported
Adams' behavior. As a result, Delk alleges that this
caused Adams to threaten rape, write false disciplinary
offenses on Delk, refuse Delk recreation time and showers,
and falsify the segregation unit chart to state that Delk
refused those activities. Compl. ¶¶ 56-65, Docket
No. 1.
On July
11, 2015, Adams threatened to enter Delk's cell and
“beat the black off of him and stomp [Delk's] nasty
pussy in.” Taking the threat seriously, Delk wrote an
affidavit that same day stating what Adams had said and that
Delk “feared for his safety.” On July 12, 2015,
Adams entered Delk's cell, called him names, and later
returned to “pepper spray” his cell without
justification when Delk had asthma. Delk went into a
“mental meltdown of fear, ” wrote affidavits,
although he does not allege that he gave the affidavits to
anyone, and told other correctional officers to stop Adams.
After Delk was allowed to exit his cell, the Sergeant
appeared. Delk asked why there was not a camera during the
search. The Sergeant responded he would go get a camera and
told Adams to write Delk some charges. A camera was not
present until after Delk was returned to his cell. Compl.
¶¶ 66-81, Docket No. 1.
On July
12, 2015, Adams wrote two disciplinary offense reports
against Delk, which Delk alleges included false allegations
“for the purpose of inflicting a punishment on
[him.]” Delk was found guilty of these disciplinary
charges. Delk alleges he has suffered psychological trauma
and stigmatization because of both the false disciplinary
charges and the grievances he filed against Adams. Compl.
¶¶ 82-92, Docket No. 1.
Although
Delk was afforded a hearing for the disciplinary charges,
Delk alleges he was denied proper due process because the
evidence used against him was false. Delk alleges that
Fleming and Mullins deprived him of a hearing that complied
with his procedural and substantial due process rights
because he was not notified of the substance of the reporting
officers' testimony, prevented from cross-examining a
witness, and denied the opportunity to present rebuttal or
witness evidence when the correctional officers changed the
description of the offense at the hearing. Delk further
alleges that defendants Mullins, Barksdale, and Ponton's
interpretation of the offense for which Delk was charged
failed to include the description of Delk's actions as
put forth by Adams, indicating to Delk that Delk did not
violate any rule or policy. Delk alleges that the policy in
question, Virginia Department of Corrections
(“VDOC”) offense code 111/198B was being used to
justify assaults on inmates, including the use of
“pepper spray” and sexual harassment, all of
which Barksdale, Moran, and Ponton were aware.
In
relation to Delk's disciplinary hearing, Delk alleges
that Barksdale, Elam, L. Mullins and M. Mullins conspired to
punish Delk and deprive him of due process and an adequate
remedy regarding the disciplinary charge. Delk alleges that
defendants Barksdale, Ponton, Messer, Parr, Pough, Moran
failed to ensure that Delk had a “post-deprivation
remedy.” Delk further alleges his Prison Rape
Elimination Act (“PREA”) grievances were not
properly addressed at Red Onion, including a claim that he
was being sexually abused in the stairway fire escape in
Building C-1. Delk alleges that Durbin, Fairington, Moran,
Barksdale, Ponton, Pough, Huff, Elam, Morehart, and McDaniel
did not help Delk. He further alleges that defendants
Barksdale, Moran, Ponton, Durbin, and Fairington were aware
of Delk's sexual abuse and failed to take action to
protect Delk from the “obvious harm.” Compl.
¶¶ 93-104, Docket No. 1.
Following
the July 12 incident when Adams entered Delk's cell, Delk
continued to seek mental health treatment. On July 14, 2015,
Delk “begged [QMHP Trent] for treatment to battle the
emotional and physical strain of the day to day harassment
[and] ridicule[.]” Delk submitted another grievance,
but does not specify when, and was granted a private session
with QMHP Trent. Delk expressed to QMHP Trent that he was
losing his self-worth “because of the continuous verbal
sexual harassment and fondling and physical assault and
threats” by the Correctional Officers
“because” of his sexuality, race, and religion,
and submitting grievances on their conduct. Compl.
¶¶ 35-36, Docket No. 1.
On
August 9, 2015, Delk submitted another informal complaint
seeking mental health treatment to cope with the negative
effects of the sexual assaults and harassment. This prompted
a series of requests to have psychiatric treatment, which
Delk alleges QMHP Trent refused “every time.” On
August 13, 2015, QMHP Trent informed Delk that prison
psychiatrist Dr. McDuffie determined Delk did not need
psychiatric treatment despite Delk having “never spoken
or interacted with Dr. McDuffie since being at [Red
Onion.]” QMHP Trent told Delk that he did not see a
problem because Delk was “very articulate” and
was “not displaying the signs associated with mental
illness.” Delk alleges that QMHP Trent told as much to
Dr. McDuffie, and that Dr. McDuffie's determination that
Delk did not need psychiatric treatment was not based upon
any personal diagnosis or evaluation of Delk.
On
August 20, 2015, Delk submitted another grievance seeking
mental health treatment, but it was denied at intake by
Grievance Coordinator Messer. The next day, Delk appealed the
intake decision and Regional Ombudsman Parr upheld the intake
rejection. Delk alleges that defendants Messer and Parr
“on over twenty occasions denied [Delk] intake of [his]
grievances” and, therefore, denied him an adequate
post-deprivation remedy despite Delk having followed the VDOC
grievance procedure properly. Delk alleges that Messer and
Parr's interpretation of Delk's grievances and
denying them at intake denied Delk mental health treatment
for his retaliation and sexual abuse. Delk alleges that
Messer and Parr rejected his grievances in retaliation for
Delk repeatedly using the grievance procedure to report
various prison officials' misconduct. Compl. ¶¶
38-43, 146-150, Docket No. 1.
By
November 12, Delk described to QMHP Trent that the
correctional officers' sexual harassment of him had
escalated. Delk continued to seek treatment for his
self-diagnosed gender dysphoria, nightmares, night sweats,
anxiety attacks, physical tremors, sleep deprivation, fits of
crying, depression, and “mental sexual roller
coaster.” Delk broadly alleges that QMHP Trent, Huff,
Fletcher, and Dr. McDuffie were aware of Delk's sexual
identity gender disorder, sexual harassment, sexual assaults,
and long-term placement in segregation housing, yet still
classified him as “no treatment no mental health
needs” (“NIHO”). Compl. ¶¶ 44-47,
Docket No. 1.
Delk
alleges that Moran, Barksdale, and Ponton violated his Eighth
and Fourteenth Amendment rights by failing to protect
“those under their care” despite knowing Delk
lived under daily threat of sexual abuse. Delk alleges that
N.H. Scott created and enforced the prison policy and
procedure that Dr. McDuffie and other defendants relied on to
justify denying treatment to Delk. Because of the policy,
Delk alleges that other prison official defendants told him,
“As NIHO [no treatment no mental health needs] you are
not a priority according to policy.” Delk alleges that
N.H. Scott, Moran, Dr. Malone, Dr. McDuffie enforced such
policies, causing Delk “horrific suffering” and
enabling other defendants to deny Delk mental health
treatment.
Delk
alleges that he was harmed because N.H. Scott, Moran, Dr.
Malone failed to employ a full-time psychiatrist, leading to
underqualified social counselors at Red Onion handling
Delk's mental health issues and facilitated Delk's
“downward[ ] slide [ ] exacerbating his pre-existing
disorder.” Specifically, Delk alleges that N.H. Scott
and Dr. Malone failed to provide an effective method for
ensuring the competence of their mental health staff, the
ratio of mental health staff to inmates, adequate staff in
general and inmate “access to competent care[.]”
Delk further alleges these defendants employ
“deficient” mechanisms for screening, evaluating,
and diagnosing Delk for mental illness such that it supplants
his “lawful punishment with a punishment of their
own[.]”
Delk
alleges several conspiracy claims. Delk alleges that
Barksdale, Messer, Parr, Fleming, and Ponton conspired to
cover up Adams' and Mullins' sexual, religious, and
racial abuse of Delk. He further alleges that McDaniels,
Morehart, Durbin, Farrington, Adams, and M. Mullins conspired
to cover up Adams and M. Mullins' sexual abuse of Delk.
Delk alleges M. Mullins, L. Mullins, Barksdale, Elam, and
Pough conspired to protect M. Mullins' attempts to
“punish and deter” Delk due to his race,
religion, and sexuality. Delk alleges Messer and Parr
conspired to protect Adams and M. Mullins'
“unprofessional conduct” due to Delk's race,
religion, and sexual orientation. Delk alleges that
Barksdale, Elam, L. Mullins, and M. Mullins conspired to
punish Delk and deprive him of due process and an adequate
remedy regarding the disciplinary charge Officer ...