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Cannon v. Armor Correctional Health Services

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

April 15, 2019

William David Cannon, Plaintiff,
Armor Correctional Health Services, et al, Defendants.


          Liam O'Grady United States District Judge

         Before 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.

         I. Background

         In the 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.[1] Cannon states that he was scheduled for the filling at that same appointment on a date which he does not provide. Id.

         On 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.

         On 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." Id.

         On 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. 3.

         The 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.

         Meanwhile, 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. 9.[2]

         On 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.

         On 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.

         On 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.; Ex. 11.

         Also on 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. Ex. 16.

         On 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. 12.

         On 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.

         On 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.; Ex. 15.

         Cannon 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]

         Meanwhile, 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.

         After 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 ...

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