United States District Court, E.D. Virginia, Alexandria Division
O'Grady United States District Judge
the Court are Motions for Summary Judgment filed by three
defendants in this lawsuit. William David Cannon
("Cannon" 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") when a diseased tooth was not
treated promptly or properly. He has named multiple
defendants, many of whom have not yet been served. The
Motions for Summary Judgment now before the Court will be
granted because they establish both that these defendants did
not violate Cannon's Eighth Amendment rights and that
Cannon failed to exhaust his administrative remedies. Because
the latter determination is fatal to Cannon's claim, all
defendants will benefit from this ruling: no further attempts
to serve the remaining defendants will be made, and the
action will be dismissed with prejudice.
Amended Complaint, which is the operative complaint in the
lawsuit [Dkt. No. 6], Cannon alleges that various medical
providers and administrators at Sussex II violated his Eighth
Amendment rights when they failed adequately to care for a
cavity in his lower right rear molar, or "tooth
#30." Id. §IV, ¶ 1. Ms. Pitter, whom
Cannon describes as a "dental administrator/ dental
assistant," informed him during a dental appointment on
September 11, 2017 that the tooth had a cavity and needed to
be filled. Cannon states that he was scheduled for
the filling at that same appointment on a date which he does
not provide. Id.
December 11, 2017, Cannon filed an Offender Request with the
medical department stating that he had "a real bad
cavity... really been give [sic] me a lot of pain ...
it's causing my gums to be painful and hard to eat on my
right side." Id.; Ex. 2. On December 15, 2017,
Ms. Pitter responded, "You will be scheduled, however we
do not have a dentist at this time." Id.
December 19, 2017, Cannon submitted another Offender Request
to "Dental." Id; Ex. 1. He expressed gratitude for
the Motrin prescription to help with his tooth pain, but
pointed out that the tooth continued to decay and the pain
remained "almost constantly." As such, he
"need[ed] to insist that you schedule me for an
'outside' dentist who can render the appropriate care
as soon as possible." He also observed, "Not having
a Dentist is not a reason not to render needed care
... not a good legal reason anyway." On December 21,
2017, Ms. Pitter responded, "Mr. Cannon, in DOC you will
not be referred out until you are seen by a dentist here at
the facility (which we do not have one). I do not know
whether you will need a filling or an extraction on that
tooth. You must first have an exam by a dentist so you can be
evaluated for proper treatment." She noted that Cannon
had been seen on September 11, 2017 and was scheduled for a
filling, so he had already been evaluated for treatment, but
"a dentist must be present to render you this treatment.
We do not refer outside appointments for fillings."
December 22, 2017, Cannon submitted an Emergency Grievance
stating, "My tooth is causing me continuous, and at
times, excruciating, PAIN! It has been over a week now - a
dentist needs to fix my tooth - CONSTANT pain I am in!"
On that same date C. Trautz, R.N. responded, "You are
prescribed Motrin three times a day." Id.; Ex.
following day, Cannon submitted an Offender Request to
"Medical Admin.," stating that "[t]here seems
to be some confusion in the Dental dept. regarding not
securing medical care - proper dental care - for me just
because currently there is no dentist here." He
explained that he became aware on 9/11/17 that he needed a
filing which he still had not received, and by then he was in
"constant pain." He asserted that "the Motrin
that was prescribed does NOT abnegate your legal
responsibility to TREAT my medical injury - which is causing
me unnecessary and constant pain." Citing Ogunde v.
PHS. Inc.. 274 Va. 55 (2007), Cannon opined that he was
"sure" that "Armore" would
"okay" outside treatment for his tooth "rather
than [his] filing a lawsuit for breach of contract and
deliberate indifference." On January 16, 2018, Ms.
Pitter responded, "Correct we do not have a dentist at
this time, you have already been prescribed with meds. You
will have to be seen/examed [sic] by a dentist. Please keep
in mind there are others ahead of you. Thank you."
Id.; Ex. 4.
on January 2, 2018, Cannon submitted an Emergency Grievance
stating that his "tooth has a HOLE in it and the pain is
constant and excruciating! This tooth MUST be fixed -
it's been too long. I NEED PAIN meds! (You let my
prescription expire and you know I was, and am, in
pain.)" The grievance was answered that same day by S.
Hicks, R.N., who indicated that the grievance did not meet
the definition for an emergency and advised Cannon that he
should submit for sick call. Id.; Ex.
January 11, 2018, Cannon filed another Emergency Grievance,
advising the "Medical Administrator or Doctor" that
the hole in his right lower molar continued to cause him
"CONSTANT" and "at times excruciating"
pain and stating that he "NEED[ED] pain medication to
help with the pain" and a "dentist to fill in the
hole." He further asserted, "This is seriously
jeopardizing my health!" S. Black, L.P.N. advised Cannon
that same day that the grievance did not meet the definition
for an emergency and to "please submit sick call slip
ASAP." Id.; Ex. 10.
January 13, 2018, Cannon submitted a Regular Grievance
complaining that he had been informed on December 20, 2017
that a "medically necessary filling for a tooth"
would not be done because Sussex II currently had no dentist.
Since then Ms. Pitter had "vehemently refused" to
refer him to an "outside dentist" even though he
had been "in constant pain for 6 weeks now because of
the hole in my tooth." He asserted
that it was "unacceptable" to leave him in constant
pain, and opined that the situation "legally constitutes
medical malpractice, breach of contract, and
negligence." He requested that the Medical Administrator
contact Armor Correctional Health Services and "get me
scheduled to see a Dentist ASAP." Id; Ex. 6. On January
23, 2018, Cannon filed an Informal Complaint to Ms. Critton,
Sussex IPs institutional ombudsman, stating that he had
deposited the Informal Grievance in the "grievance
box" eight days earlier and he had not yet received a
receipt, which failed to comply with DOC policy that
grievances should be processed in a timely manner. Ms.
Critton responded that as of January 30, 2018 one grievance
from Cannon had been received and logged on January 25 and a
receipt was mailed the same day. She advised Cannon that his
next action date was February 24, 2018 and that he would be
receiving a response before then. Id., Ex.8.
January 18, 2018, Cannon submitted an additional Emergency
Grievance, asserting that the "hole in my tooth (lower
molar) is causing me continuous pain - as in non-stop pain!
It needs to be filled by a dentist immediately! The hole is
allowing food, bacteria, and air to get at the pulp and
nerves - you have allowed this to continue for over 4 weeks
now! AND - you allowed my pain to expire a week ago! HELP
ME!!" D. Williams R.N. responded the same day,
"submitted to dental - you were previously on Motrin -
/Tylenol 500 mg tabs orally T/D x 5 days ordered - submit an
inmate request to see dental hygen [sic]." Id.;
January 18, 2018, Cannon filed an Informal Grievance to the
Assistant Warden, stating that officers in 2C were
"completely ignoring and habitually violating DOC Policy
regarding Emergency Grievances." He explained that he
had handed the Booth Officer an medical Emergency Grievance
earlier that day and the officer refused to sign the receipt,
stating that she had to give it to Sgt. Evans, and as to 10
p.m. Cannon had no receipt. The following day, Lt. Mills
responded that the matter would be looked into. Id.
January 24, 2018, Cannon filed another Emergency Grievance,
alleging again that the "cavity/hole in my rear molar is
causing me constant - constant - pain! Motrin was prescribed
for 5 days - now what? I need this tooth filled immediately -
or pain meds UNTIL this tooth is fixed. The Dental
Dept. knew my tooth needed treatment 9/11/2017 - and nothing
is being done. It is effecting [sic] my living
conditions." D. Williams R.N. replied that same day that
grievance did not meet the definition for an emergency,
Cannon's request had been forwarded to the dental
department, and Motrin had been re-ordered. Id.; Ex.
February 2, 2018, Cannon was provided dental treatment by Dr.
Wells, D.D.S., who placed a temporary filling in tooth #30.
Id. at 11, ¶ 9. He asserts, however, that
because there had been an open hole in the tooth for 5
months, "a temporary filling is NOT what was medically
necessary to treat and fix/cure the toothache. The cavity was
NOT treated." Id.
March 6, 2018, Cannon filed an Emergency Grievance, stating
that the lower right molar "is turning BLACK and has
been throbbing now for 5 days. Throbbing despite the Tylenol
you have me on. This tooth needs to be fixed! The Dental
depts negligence has led to my tooth turning Black - AND its
painful!" C. Trautz, R.N. responded later that day that
Cannon's grievance did not meet the definition for an
emergency and advised him that she had "placed a copy of
your concerns in the dental department. I will forward your
chart to the Doctor as well for review." Id.;
states in response to one of the summary judgment motions
under consideration that tooth #30 was extracted by an oral
surgeon on June 21, 2018. The same oral surgeon extracted
both of Cannon's impacted upper wisdom teeth on October
23, 2018. [Dkt. No. 52, ¶¶ 19, 25]
Cannon filed the instant lawsuit pursuant to 42 U.S.C. §
1983 on February 22, 2018, alleging that he suffered
deliberate indifference to his serious medical needs when the
cavity in his lower right rear molar was not treated
promptly. [Dkt. No. 1] An Order was entered on February 28,
2018, advising Cannon of deficiencies in the complaint and
allowing him an opportunity to submit a particularized and
amended complaint within thirty days. The amended complaint
and exhibits discussed above were filed on April 9, 2018 and
accepted as timely [Dkt. No. 6, 17]. Cannon names 15
defendants in the Amended Complaint and seeks an award of
compensatory and punitive damages. In addition to his claim
under § 1983, Cannon sets out a claim for breach of
contract, contending that he is entitled to damages as a
third-party beneficiary of the contract for inmates'
health care entered into by the Virginia Department of
Corrections and Armor Correctional Health Services, Inc.
("Armor"). [Dkt. No. 6 at ¶ 15-16] He also
alleges that Dr. Wells is liable for medical malpractice.
Id. at ¶ 9.
some confusion resulting from the mis-docketing of
Cannon's habeas corpus petition pursuant to 42 U.S.C.
§ 2254 in this action [Dkt. No. 13-16], an Order was
entered on August 29, 2018, granting Cannon leave to proceed
in forma pauperis in the lawsuit and directing that
the complaint be filed. [Dkt. No. 17] Cannon's claim
against Armor was dismissed as abandoned, and his claims
against defendants Armor President or CEO John Doe, Sgts. A.
Evans and J. Branch, Sussex II Warden Tracy Ray, and Virginia
Department of Corrections ("VDOC) Director A. David
Robinson were dismissed with prejudice for failure to state a
claim pursuant to 28 U.S.C. § 1915A. Id. at 10.
The Clerk was directed to send Notices of Waiver and Requests
for Waiver of Service of Summons to the remaining ten
defendants at Sussex II. Id. at 12. Three of the
defendants - Dr. Leo Gangoy, A. Critton, and Ms. Pitter -
returned the Notices, and each has filed a Motion for Summary
Judgment with a supporting memorandum of law and ...