United States District Court, W.D. Virginia, Roanoke Division
STEVEN R. DELK, Plaintiff,
BRIAN MORAN, et al., Defendants.
K. Moon United States District Judge
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”). 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.
an inmate at ROSP. Nurses Yates and Phipps are employed by
ROSP as part of the medical staff. The record establishes the
Facts Related to Nurse Yates
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
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 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.
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.
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.
Facts Related to Nurse Phipps
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
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
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
(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 ...