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Livesay v. Walden

United States District Court, E.D. Virginia, Alexandria Division

March 30, 2018

John Livesay, Plaintiff,
v.
Gladys Walden, et ah, Defendants.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge.

         John Livesay, a Virginia inmate proceeding pro se, has filed a civil rights action, pursuant to 42 U.S.C. § 1983, alleging that his Eighth Amendment rights were violated by employees at Greensville Correctional Center. Specifically, plaintiff asserts claims of deliberate indifference to his serious medical needs.[1]

         Plaintiff names two groups of defendants: Sergeant Gladys Walden, Warden Eddie L. Pearson, Warden C. M. Parker, Warden Louise Goode, Unit Manager Stephanie Robertson, Counselor C. Sykes, Ombudsman K. Whitehead, Ombudsman S. Tapp, Ombudsman K. Phillips, Dr. Mark Amonette, Health Services Director Frederick Schilling, Regional Administrator Gregory Holloway (collectively the "Correctional Defendants"), and Dr. David Spruill, Dr. Vincent Gore, Nurse Elizabeth Shaw, and Nurse A. Smith (collectively the "Medical Defendants").[2]

         The Correctional Defendants have filed a Motion to Dismiss plaintiffs Amended Complaint, and, after being granted an extension of time to respond, plaintiff filed his opposition to the Correctional Defendants' Motion to Dismiss. Dkt. Nos. 36-38, 52.

         Dr. Spruill filed a Motion to Dismiss plaintiffs Amended Complaint to which, after being granted an extension of time to respond, plaintiff filed an opposition. Dkt. Nos. 41-42, 51. The remaining medical defendants Gore, Shaw, and Smith filed a Motion for Summary Judgment to which plaintiff has filed an opposition. Dkt. Nos. 55-57, 61. Defendants Gore, Shaw, and Smith also filed a reply and plaintiff, with leave of court, has filed a surreply. Dkt. Nos. 63, 66.[3]

         Finally, plaintiff has filed motions for discovery, to defer or deny defendant's motion for summary judgment, and for appointment of counsel, and the defendants have filed motions to stay discovery. Dkt. Nos. 69-71, 76, 78.

         All these motions are ripe for adjudication. For the reasons that follow, the Correctional Defendants' Motion to Dismiss will be granted and the Medical Defendants' Motion for Summary Judgment[4] will be granted, which decisions will moot all the remaining pending motions.

         I. Correctional Defendants Motion to Dismiss

         A. Background

         Plaintiff asserts that the Correctional Defendants were deliberately indifferent to his medical needs by (1) failing to provide him his missing items, specifically, a sleep mask and knee wraps, which he alleges are needed to address his photophobia and weak knees; (2) creating and following a policy of delaying medical treatment for inmates, in violation of VDOC operating policies; (3) delaying the processing of grievances; and (4) failing to train staff properly regarding the scheduling of medical appointments and the disbursement of medically approved property. In support of these claims, plaintiff asserts the following allegations in his Amended Complaint, which for purposes of the Motion to Dismiss are taken as true.[5]

         1. Failure to Provide Plaintiff his Missing Items

         Plaintiff is currently incarcerated at Greensville Correctional Center ("GRCC"). Amend. Compl. at ¶ 4. The Amended Complaint alleges that when plaintiff, who was 52 years old when this civil action was filed, was previously held at Powhatan Correctional Center, he was classified by the Virginia Department of Corrections' ("VDOC") Americans with Disabilities Act ("ADA") Coordinator as being orthopedically and visually impaired, and was issued a sleep mask (for photosensitivity) and knee wraps (for knee support); however, when he was transferred to GRCC on October 27, 2014, these items were not re-issued to him. Id. at ¶¶ 28-30.

         On October 30, 2014, plaintiff spoke with defendant Unit Manager Robertson, regarding his missing property. Id. at ¶ 30. On November 3, 2014, defendant Unit Manager Robertson told plaintiff to send property control a request form about the missing items. Id. at ¶ 31.

         The Amended Complaint further alleges that on November 4, 2014, Dr. Chan authorized plaintiff to obtain knee wraps and a sleep mask from the property department, Id. at ¶ 32, but that on November 13, 2014, when defendant Sergeant Walden was distributing personal property, she refused to give plaintiff these missing items even though plaintiff had authorization from the GRCC medical department, Id. at ¶ 35. Plaintiff informed Sergeant Walden that "failure to issue the medical devices would result in [plaintiffs] leg giving out and [plaintiffs] suffering further injury." Id. In response, Sergeant Walden gave plaintiff a confiscation form, which plaintiff filled out that day. Id.

         On December 5, 2014, plaintiff informed Ombudsman Tapp that denial of his missing items would result in plaintiff being injured. Id. at ¶ 40. On December 26, 2014, while exercising, plaintiffs right knee buckled, resulting in a painful back injury. Id. at ¶ 48. On December 27, 2014, plaintiff filed an informal grievance stating that he injured his back because defendant Walden refused to give him his knee wraps. Id. Ex. 11, at 1. Walden responded that she was not withholding plaintiffs knee wraps and that he had been given his ace bandage. Id.

         The Amended Complaint further alleges that on February 3, 2015, the ADA Coordinator stated that Warden Pearson was aware of the fact that plaintiffs items were being withheld. Id. at ¶ 67. On February 13, 2015, plaintiff wrote to defendant Warden Pearson regarding his missing items. Id. at ¶ 73.

         On March 19, 2015, plaintiff submitted a Personal Property Request Form asking to purchase a sleep mask, which was denied on April 10, 2015, on the ground that "medical needs to provide sleep mask [sic]." Id. at ¶ 78.

         On April 10, 2015, Nurse Tarpley directed that plaintiffs sleep mask and knee wraps be released from the property department. Id. at 1J 84. Plaintiff provided this information to defendant Unit Manager Robertson who told plaintiff to see Counselor Bailey. Id. On April 16, 2015, Counselor Bailey informed plaintiff that "medical must approve and give [the sleep mask] to you." Id. Ex. 22.

         On May 26, 2015, Dr. Sharma ordered a new sleep mask for plaintiff, but the order was discontinued by defendants Dr. Gore and Nurse Shaw. Id. at T|1f 91, 99. On August 27, 2015, Nurse Flowers ordered a sleep mask for plaintiff. Id. at 1101.

         On October 14, 2015, plaintiff was told that his request for a sleep mask had been denied again by Dr. Gore, and plaintiff was informed that Dr. Gore found no medical indication that plaintiff needed a sleep mask. Id. at ¶ 103. Plaintiffs grievance of this decision was determined to be unfounded at every level of review. Id. Ex. 28. On December 15, 2015, Ombudsman Tapp refused to help plaintiff regarding the missing sleep mask and knee wraps. Id. at ¶ 109.

         On November 11 and 17, 2016, plaintiff sent defendant Dr. Amonette letters regarding his sleeping problems. Id. at ffl[ 159, 164. On November 14, 2016, plaintiff filed an offender request form asking Warden Pearson to overrule Dr. Gore's decision regarding the sleep mask, and on December 16, 2016, plaintiff wrote Warden Pearson a letter regarding his missing items. 143111(162, 177.

         On December 1, 2016, Dr. Spruill told plaintiff that he would not order plaintiff a sleep mask or approve plaintiff for a sleep mask. Id. at ¶ 168.

         2. Creating and Following a Policy of Delaying Medical Treatment

         Plaintiff alleges that the Correctional Defendants maintained a policy of delaying medical treatment for up to several weeks at a time and denying medically necessary property for inmates, in part by not following the VDOC policy requiring that inmates be seen by a medical professional within 72 hours of submitting a medical request. Id. at ¶¶ 207-08, 211, 225.

         Plaintiff further alleges that the Correctional Defendants were aware that delaying plaintiffs medical treatments and denying him his missing items would cause him injury; however, because of the Correctional Defendants' policies, plaintiff suffered "severe, debilitating, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress." Id. at ¶¶ 206, 209, 215.

         Plaintiff includes Wardens Pearson, Parker, and Goode in this litigation because they have final policy making authority at GRCC, and Sergeant Walden and Counselor Sykes because they have final policy making authority regarding the distribution of property. Id. at ¶¶ 216-17.

         3. Delaying the Processing of Grievances and Denial of Grievances

         Plaintiff was transferred from Powhatan to GRCC on October 27, 2014 and his numerous grievances throughout his incarceration at GRCC are included in the record and show that starting November 14, 2014, plaintiff began filing multiple grievances against various defendants addressing their failure to provide the sleep mask and knee wrap, as well as delays in getting medical appointments and medication. Id. at ¶ 36. Many of his grievances were denied on procedural grounds. For example, on one occasion, Ombudsman Tapp requested that plaintiff provide additional information. Id. at ¶ 37, Ex. 2. On December 12, 2014, after obtaining the information, plaintiff promptly refiled the grievance; however, it was denied by Ombudsman Whitehead as being filed outside the filing period. Id. at % 43, Ex. 2.

         On January 6, 2015, plaintiff filed a grievance regarding his inability to schedule an appointment with the medical department. Id. at ¶ 61. It was returned on January 14, 2015, with a request for a receipt of plaintiff s informal complaint. Id. In response, plaintiff filed a separate informal complaint and grievance because plaintiff had not received a receipt for his original informal complaint. Id. at ¶ 61, Ex. 14. Ombudsman Whitehead denied the second grievance as untimely. Id. Ex. 14.

         Plaintiff filed two grievances on January 10, 2015, one for a delay in receiving medication and the other stating that his back injury was a result of Sergeant Walden's failure to give him his knee wraps. Id. at ¶ 58, Ex. 11. The grievance regarding Sergeant Walden was determined to be unfounded at each level of review. Id. Ex. 11. There is no information as to what happened with the grievance regarding the delay in receiving medication.

         Plaintiff filed a grievance on June 12, 2015, because his missing items were mailed out. Id. at ¶¶ 93-94, Ex. 24. Ombudsman Whitehead denied the grievance as being untimely filed and the intake decision was upheld. Id. On October 31, 2015, plaintiff filed a grievance because the medical department refused to issue him a sleep mask. Id. at % 105. The grievance was determined to be unfounded by Warden Parker because "sleep masks are not a medical necessity." Id. Ex. 28.

         On September 16, 2016, plaintiff filed a grievance because the medical department refused to give him copies of his medical records. Id. Ex. 34. Ombudsman Tapp denied the grievance as providing insufficient information ...


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