United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA UNITED STATES DISTRICT JUDGE.
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.
Defendant Bailey's Motion for Summary Judgment
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].  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.
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 The medication he received at
that time was Norco rather than Percocet, and the dosage
times had been revised. Id. ¶ 14.
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.
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.
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.
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.
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].
Standard of Review
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 ...