Delk v. Moran

          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 ...