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Delk v. Moran

United States District Court, W.D. Virginia, Roanoke Division

March 15, 2019

STEVEN R. DELK, Plaintiff,
v.
BRIAN MORAN, et al., Defendants.

          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 Red Onion State Prison (“ROSP”).[1] This memorandum opinion will address Defendants Nurse Yates and Nurse Phipps' motion for summary judgment. Dkt. 86. For the reasons that follow, I will grant the motion.

         I. Background

         Delk is an inmate at ROSP. Nurses Yates and Phipps are employed by ROSP as part of the medical staff. The record establishes the following.

         A. Facts Related to Nurse Yates

         On July 12, 2015, a correctional officer contacted Nurse Yates to inquire whether oleocapsicum (“OC”) spray could be used on Delk. Under ROSP policy, the only medical conditions that are considered contraindications for OC spray are (1) acute eye infection, and (2) severe chronic obstructive pulmonary disease (“COPD”). Nurse Yates reviewed Delk's medical records, determined that he did not possess either condition, and reported the same to the correctional officer. Delk was then sprayed with OC spray.

         After he was sprayed, Nurse Yates attended Delk. During her evaluation, she determined that Delk was standing, alert, oriented to person, place, and time, and was in no visible distress. (Yates Decl. ¶ 7, dkt. 87-1); (Med. R. 44, dkt. 87-3). She noted that his respiration was even and unlabored, his vital signs were normal, and his oxygen saturation[2] was at 99%. (Med. R. 44). Based on her findings, Nurse Yates medically cleared Delk and told him to follow up with the medical department as needed. Id.

         On July 13, 2015, Delk filed and emergency grievance and went to the medical department with complaints of burning in his mouth, chest, and stomach from the chemical spray. (Yates Decl. ¶ 9). Medical staff noted no acute distress and that his breathing was even and unlabored. (Med. R. 44). Delk was given a three-day pepto bismol prescription and discharged.

         On July 17, 2015, Delk was seen at sick call. He complained that he had had a sinus/migraine headache, sinus pain, and a runny nose since he was sprayed with OC spray on July 12. (Med. R. 43). Once again, medical staff noted that his respirations were even and unlabored, his vital signs were normal, and his oxygen saturation was at 98%. Id. The attending nurse, following nursing guidelines, prescribed Delk with an antihistamine and Motrin for five days. Id.

         B. Facts Related to Nurse Phipps

         At all times relevant to this suit, Nurse Phipps was the “Health Authority” at ROSP. The Health Authority fulfills primarily administrative duties-she primarily supervised nursing staff and responded to medical grievances. (Phipps Decl. ¶ 4, dkt. 87-2). The Health Authority does not create or establish the policy which designated the conditions considered contraindications to OC spray. However, Nurse Phipps, like all nurses at ROSP, was required to follow the policy.

         On July 21, 2015, Delk submitted an informal complaint stating:

The medical administrator and Ms. D. Yates showing a reckless disregard for my physical and mental well-being deprived me of the standard of care owed to me as an asthmatic; on 7-12-15 Ms. D. Yates approved the use of a chemical munition stating it would not jeopardize my health or trigger an asthma attack (so I was sprayed). Ms. Yates approval was not a medical decision.

(Med. R. 1). As the Health Authority, Nurse Phipps investigated the complaint. She reviewed Delk's medical records and confirmed that Nurse Yates had followed protocol by reviewing Delk's medical history for contraindications to OC spray and relaying that information officers. Nurse Phipps also determined that Nurse Yates evaluated Delk after he was exposed to OC spray, noting that he suffered no serious adverse medical effects. (Phipps Decl. ¶ 8). Nurse Phipps then responded to the complaint, advising Delk: “Asthma is not a contraindication for the use of OC spray. [Nurse Yates] was correct when she gave permission for the use of OC spray by noting no contraindication noted.” Id.

         II.

         Delk filed his initial complaint on or about November 28, 2016, Defendants filed their motion for summary judgment on September 25, 2017, and Delk responded on October 30, 2017, making the motion ripe for disposition. He asserts the following claims:

(1) Nurse Yates was deliberately indifferent to Delk's serious medical needs when she approved the use of OC spray on Delk despite knowing that he suffered from asthma in violation of the Eighth and Fourteenth Amendment and Va. Const. Art. I §§ 9, 11;
(2) Nurse Phipps was deliberately indifferent to Delk's serious medical needs when she knowingly created and enforced a custom, policy, or rule which authorized Nurse Yates to approve the use of OC spray on asthmatics in violation of the Eighth and ...

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