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Cavalieri v. Preston

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

February 25, 2019

David Edward Cavalieri, Plaintiff,
N. Preston, et ah, Defendants.



         Before the Court is defendant Mack Bailey's Motion for Summary Judgment ("Motion"). David Edward Cavalieri ("Cavalieri" or "plaintiff"), a Virginia inmate acting pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging that he suffered deliberate indifference to his serious medical needs at Sussex II State Prison ("Sussex II"). He has named multiple defendants, many of whom have not yet been served. Bailey's Motion will be granted because Cavalieri failed to exhaust his administrative remedies. Because that determination is fatal to Cavalieri's claims, all defendants will benefit from this ruling: previous orders requiring defendants Andrea Williams and Dr. Lonia Abbott to file motions for summary judgment will be vacated, no further attempts to serve the remaining defendants will be made, and the action will be dismissed with prejudice.

         I. Defendant Bailey's Motion for Summary Judgment

         A. Cavalieri's Allegations

         In this action Cavalieri alleges that various medical providers and administrators at Sussex II violated his Eighth Amendment rights when they failed to provide him with pain medication for several hours after he underwent knee surgery on May 11, 2017, and again when a prescription for back pain was not renewed from August 4 to August 16, 2017. Mack Bailey ("Bailey") was the Assistant Warden at Sussex II when the events relevant to this lawsuit occurred [Dkt. No. 60]. [1] Cavalieri alleges in the amended complaint, the operative complaint in the lawsuit, that Bailey "directly and indirectly cause[d]" Cavalieri's pain and suffering by negligently failing properly to investigate Cavalieri's grievances regarding the medical department's care of his chronic back pain. Am. Compl. [Dkt. No. 19] ("Compl.) ¶6. In turn, this allegedly created "a culture within the medical dept. of indifference to the pain and suffering of prisoners who have substantial and legitimate medical issues." Id. Cavalieri asserts that he submitted "no less than four (4) grievances" regarding his knee and back pain, "yet, Mack Bailey sided each time with the Medical Dept. and [found plaintiffs grievances] 'unfounded.'" Id. He argues that his pain and suffering was known to Bailey, and as a direct result of Bailey's decisions and policies, plaintiff was made to endure pain, suffering, and loss of quality of life, for which Bailey should be held liable for deliberate indifference, negligence, and breach of contract. Id.

         B. Background

         Evidence supplied by Bailey reveals the following undisputed material facts. On May 11, 2017, Cavalieri underwent orthopedic surgery on his left knee at an outside hospital and was returned to Sussex II that same day. Id. ¶¶ 1-2. Cavalieri was told that the hospital had called in a prescription for Percocet, a narcotic pain medication, and he expected to receive a dose at 5:00 p.m. that afternoon. Id. ¶ 2. He did not receive pain medication until 4:00 a.m. the following day, May 12, 2017. Id. ¶ 9[2] The medication he received at that time was Norco rather than Percocet, and the dosage times had been revised. Id. ¶ 14.

         On August 3, 2017, the Sussex II medical department allegedly "allowed [Cavalieri's] pain medications and arthritis medication to expire." Id. ¶ 17. Although Cavalieri filed three "Offender Requests" regarding the situation, he was without his Baclofen and Mobic from August 4 until August 16, 2017. Id. ¶ 19.

         On May 27, 2017, Cavalieri submitted a Regular Grievance complaining as he does here that on May 11, 2017 the medical department did not provide him with pain medication prescribed by the orthopedic surgeon who operated on Cavalieri's knee. Bailey provided a Level I response on June 8, 2017 determining the grievance to be unfounded. Bailey Aff. ¶ 9. In that response he explained that medications and orders written by outside physicians are treated as recommendations, and the medication that was supplied to Cavalieri had been prescribed by the institutional physician. Id. As part of Bailey's investigation into Cavalieri's complaint, he consulted Health Services Administrator D. Lawson who explained: "Mr. Cavalieri #1424382 was prescribed Percocet at the hospital. We do not use Percocet in DOC as it is a highly abused drug. The patients return from the hospital with recommendations from the outside physicians and our providers approve them. The medical doctor here ordered him Norco 5/325mg for pain instead of Percocet. The medication arrived from the back up pharmacy after the nursing staff completed pill call. He was administered his first dose @0400. He also came to medical to see the physician the morning after surgery and the doctor wrote him an order for an extra dose of pain medication in addition to the dose he received that morning. The order was written related to the dose he did not receive after arrival to the institution from surgery." Id.; Enc. C. There is no evidence in the record of plaintiff pursuing this grievance to Level II.

         On August 3, 2017, Cavalieri submitted another Regular Grievance, complaining that the policy that required him to be medically evaluated before prescriptions for his back pain medications were renewed amounted to an "unethical predatory business practice" that was "perhaps illegal." Id. ¶ 11; Enc. D. Cavalieri asserted that his conditions of chronic back pain and mobility issues caused by lower-lumbar arthritis and a herniated disk do not need to be evaluated every three months, and he requested written confirmation that there was a policy with regard to his specific health care requirements that supported such evaluation. Id. Bailey provided a Level I response on August 29, 2017, determining the grievance to be unfounded. He stated that investigation had revealed that Health Services Administrator A. Williams had explained to Cavalieri that while he did claim to have chronic back pain, that condition is not considered a chronic care condition, like asthma, hypertension, diabetes, HIV or hepatitis C. Id. Plaintiff did not pursue this grievance to Level II.

         Bailey attests that he based each of his responses to Cavalieri's grievances on review of information provided to him by both health care staff and policies governing the issues. Id. As Bailey explained, he was not personally involved in any of the decisions regarding what medications to prescribe to Cavalieri, nor was he involved in timing the dispensing of the medications, and he learned about these issues only after Cavalieri filed his grievances. Bailey Aff. ¶ 11. Bailey did not interfere with Cavalieri's medical care and treatment, and did not make any decisions respecting that treatment. Instead, he relied on the health care providers to make all treatment decisions. Bailey's role was limited to responding to grievances Cavalieri filed after the events alleged had already taken place. Id. ¶ 12.

         Bailey filed his Motion for Summary Judgment with a supporting Memorandum of Law and affidavits on June 8, 2018, arguing that he is entitled to summary judgment because: (1) the complaint fails to allege an adequate level of his personal involvement with the deprivation of Cavalieri's rights; (2) the complaint states no claim of an Eighth Amendment violation; (3) Cavalieri's claims are barred because he failed to exhaust his administrative remedies before bringing this lawsuit; and (4) he is entitled to qualified immunity [Dkt. Nos. 60-61]. Bailey provided Cavalieri with the notice required by Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K [Dkt. No. 62]. Cavalieri has responded [Dkt. Nos. 74-75].

         C. Standard of Review

         Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that judgment on the pleadings is appropriate. See Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986) (moving party bears the burden of persuasion on all relevant issues). To meet that burden, the moving party must demonstrate that no genuine issues of material fact are present for resolution. Id. at 322. Once a moving party has met its burden to show that it is entitled to judgment as a matter of law, the burden then shifts to the non-moving party to point out the specific facts which create disputed factual issues. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 587 (1986). In evaluating a motion for summary judgment, a district court should consider the evidence in the light most favorable to the non-moving party and draw all reasonable inferences from those facts in favor of that party. United States v. Diebold. Inc..369 U.S. 654, 655 (1962). "Only disputes over facts which might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson. 477 U.S. at 248. An issue of material fact is genuine when "the evidence ...

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