United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge.
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.
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
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.
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,
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.
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 will be granted, which decisions will moot
all the remaining pending motions.
Correctional Defendants Motion to
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.
Failure to Provide Plaintiff his Missing Items
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.
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.
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.
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.
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.
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
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.
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.
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.
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,
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.
Creating and Following a Policy of Delaying Medical
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.
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.
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.
Delaying the Processing of Grievances and Denial of
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.
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.
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.
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.
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 ...