United States District Court, W.D. Virginia, Roanoke Division
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE
the time period relevant to this case, Plaintiff John Shover
was an inmate at Middle River Regional Jail (MRRJ).
Defendants are Regina Chestnut, the medical administrator at
MRRJ; Dr. Michael Moran, the jail physician; and Donna
Reynolds, a nurse at MRRJ. In a suit brought pursuant to 42
U.S.C. § 1983, Shover alleges that Defendants violated
the Eighth Amendment by denying him a cane and a bottom-tier
cell, resulting in an injury on the jail stairs. The Court
previously denied Defendants' motion for summary
judgment, which argued Shover had not exhausted his
administrative remedies. (Dkts. 27, 28). Having completed
discovery, Defendants now move for summary judgment again,
contending that no reasonable jury could find that Shover had
a serious medical need for a cane or bottom-tier housing, or
that Defendants acted with deliberate indifference toward
either alleged need. (Dkt. 67).
concedes that summary judgment should be granted as to
Defendants Moran and Reynolds, and the Court will thus grant
summary judgment in these defendants'
favor. The parties dispute whether Defendant
Chestnut acted with deliberate indifference, but the Court
finds that no reasonable jury could find that she did.
Accordingly, the Court will also grant Chestnut's motion
for summary judgment.
Civ. P. 56(a) provides that a court should grant summary
judgment if the movant shows “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” “A dispute is
genuine if a reasonable jury could return a verdict for the
nonmoving party, ” and “[a] fact is material if
it might affect the outcome of the suit under the governing
law.” Variety Stores, Inc. v. Wal-Mart Stores,
Inc., 888 F.3d 651, 659 (4th Cir. 2018). The nonmoving
party must “show that there is a genuine dispute of
material fact . . . by offering sufficient proof in the form
of admissible evidence.” Id. (quoting
Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208,
216 (4th Cir. 2016)). The district court must “view the
evidence in the light most favorable to the nonmoving
party” and “refrain from weighing the evidence or
making credibility determinations.” Id.
“Although the court must draw all justifiable
inferences in favor of the nonmoving party, the nonmoving
party must rely on more than conclusory allegations, mere
speculation, the building of one inference upon another, or
the mere existence of a scintilla of evidence.”
Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.
the time period relevant to this case-July 25, 2016 through
September 1, 2016- Plaintiff John Shover was an inmate at
Middle River Regional Jail (MRRJ) in Staunton, Virginia.
Shover maintains that he has “permanent nerve damage
from [his] knees down to [his] feet” as a result of a
back operation in 2014. (Dkt. 71-1 at 8 (“Shover
Depo.”)). A letter dated April 19, 2016 from
Shover's physician, Dr. Kimberly Dowdell of the
Department of Internal Medicine at the University of Virginia
(UVA) Health System, states that Shover suffers from deep
venous thrombosis, a herniated lumbar disc, hypertension, hip
pain in his left hip, sleep apnea, and lumbar stenosis. (Dkt.
68-8). Before his incarceration in July 2016, Shover used
“normal orthopedic canes” sold at his pharmacy
and sometimes used two canes. (Shover Depo. at 11). Prior to
July 2016, Shover navigated stairs in his home “[w]hen
[he] had to, ” such as when he slept in his upstairs
bedroom, and had “several falls” that did not
require medical treatment. (Id. at 11-12, 17).
Shover's initial intake at MRRJ on July 25, 2016, MRRJ
staff noted that Shover reported “nerve damage - from
knees down” and previous “back surgeries.”
(Dkt. 68-2 at 1). Shover avers that he had a cane with him
when he arrived at MRRJ but that jail staff confiscated the
cane. (Shover Depo. at 12). MRRJ's intake notes list
“cane” by a physical assessment column entitled
“[l]egs.” (Dkt. 68-2 at 1). Defendant Chestnut
was not present for Shover's intake and avers that she
did not review his intake form. (Dkt. 68-3 at 77-78
(“Chestnut Depo.”)). An e-mail sent by Chestnut
on September 9, 2016-eight days after Shover's September
1 fall-reflects that MRRJ had “Shover's cane”
in “personal property.” (Dkt. 71-8).
his intake evaluation, Shover was assigned to a cell on the
second tier of the jail, where he remained until his fall on
September 1, 2016. Shover's placement on the second tier
required him to traverse stairs on a daily basis for meals,
to return meal trays, for pill calls, to make phone calls,
and to utilize the jail's “day room.” (Shover
Depo. at 14-15).
has served as medical administrator at MRRJ since 2014. In
this position, Chestnut oversees the medical department,
handles scheduling, sometimes answers inmate medical request
forms, makes outside medical appointments for inmates, and
“can see inmates if needed.” (Chestnut Depo. at
12). Chestnut did not review every medical request form or
grievance submitted by an inmate, nor did she regularly
review nursing staff's responses to medical request forms
and grievances. (Id. at 33, 35). MRRJ also employed
Dr. Michael Moran as a staff physician, (dkt. 68-5 at 11
(“Moran Depo.”), and Barry Munsey as a
physician's assistant (“P.A. Munsey”).
(Chestnut Depo. at 19).
the relevant time period, inmates at MRRJ filled out medical
request forms for non-emergency medical issues and provided
those forms to jail officers, who then delivered the forms to
the medical department. (Id. at 17-18). Any
available member of the nursing staff could answer these
request forms, and all requests were supposed to be answered
within 7 days. (Id.). In addition to medical request
forms, inmates could submit “inmate request
forms” directly to security officers. (Shover Depo. at
20, 22; see, e.g., dkt. 71-1 at 8, 10). Inmates
could also submit formal grievances within 30 days of the
incident complained of; prison officials were to respond to
grievances within 9 days. (Dkt. 12-1 at 7).
inmate met certain criteria, nurses could unilaterally have
the inmate moved to a bottom-tier cell by sending an
e-mail “that they would need to be bottom bunk / bottom
tier” to the “security officer.” (Chestnut
Depo. at 20-21, 76; see also dkt. 71-2 at 6
(“Kane Depo.”)). Nurses could also effectuate
moves by issuing medical orders or consulting with a
physician or physician's assistant. (Chestnut Depo. at
52). However, nurses did not unilaterally order canes or
walkers for inmates; rather, the jail doctor or
physician's assistant ordered such equipment upon a
finding of medical necessity. (Id. at 22-23, 60-62,
69-70, 78; Dkt. 68-4 at 18-19, 31 (“Reynolds
Depo.”); Moran Depo. at 40-41; dkt. 68-1 ¶ 6
had six identifiable encounters with Shover prior to his fall
on September 1, 2016. On August 18, 2016, Chestnut reviewed
and responded to a medical request form in which Shover asked
whether he could continue to take lyrica and oxycodone
prescribed to him by an outside physician for pain related to
“nerve [and] leg damage caused by a recent back
surgery.” (Dkt. 71-1 at 73; see also Chestnut
Depo. at 38, 96; Chestnut Decl. ¶ 9). This request form
did not include any request for a cane or a bottom-tier cell.
(Id.; see also Shover Depo. at 18).
Chestnut responded: “We will see you and discuss
options for you.” (Dkt. 71-1 at 73). Chestnut then
placed Shover on a list to see the doctor. (Chestnut Decl.
August 24, 2016, Chestnut responded to a second medical
request form Shover submitted on August 23, 2016. (Chestnut
Depo. at 39-40, 97). Shover stated that he was
“following up on [his] request last week . . . to see
the medical staff concerning [his] Rx meds, ” noting
that he had “since fallen in the pod and hurt [his]
knee” and had “great difficulties walking due to
the permanent nerve damage to [his] legs.” (Dkt. 71-1
at 74). Chestnut responded: “Mr. Shover, you are on the
list to be seen today.” (Id.). This request
form did not include any request for a cane or a bottom-tier
cell. (Id.; Shover Depo. at 19).
that day, Shover saw P.A. Munsey, who diagnosed Shover with
lower back pain and hypertension but did not note any request
for a cane or bottom-tier housing or order either. (Chestnut
Depo. at 73-74; Chestnut Decl. ¶ 11). Chestnut was not
present at this appointment. (Id.). Shover remembers
meeting with P.A. Munsey on at least one occasion prior to
August 28, 2016. (Shover Depo. at 20-21). Shover recalls
asking P.A. Munsey specifically for a cane, and states that
Munsey replied that “he could not give [Shover] a cane
or issue [him] a cane . . . because it would be considered a
weapon and it was against . . . [jail] policy.”
(Id. at 20).
August 26, 2016, Chestnut responded to a grievance Shover
submitted on August 25, 2016. In this request, Shover asked
either for a cane or to be moved to the medical infirmary
“where I do not have to try and walk
unassi[s]ted.” (Dkt. 68-7 at 1). Shover stated that
P.A. Munsey “reaffirmed that canes are not
allowed” at their appointment on August 24, 2016.
(Id.). Shover noted that he had “been
prescribed a walking cane by” his outside physician,
Dr. Dowdell, but that MRRJ “would not let [him] bring
[his] cane” into the jail at intake. (Id.).
Shover stated that he had already fallen “several
times” on the stairs “in the pod.”
(Id.). Chestnut responded: “Mr. Shover, will
get you moved to bottom tier so you don't have to go up
and down stairs.” (Id.). Chestnut avers that
this grievance marked her first awareness that Shover was
housed on the second tier or that he had requested a cane.
(Chestnut Decl. ¶ 12). Chestnut “determined that
[Shover] met the criteria which allowed [her] to request that
he be moved to [the] bottom tier” because of his
“report that he had fallen” but that she
“did not have authority to issue him a cane and Mr.
Munsey had not ordered one.” (Id.).
that day, Chestnut emailed David Kane, a classification
officer at MRRJ, stating the following: “Can we move
John Shover to a bottom tier? He states he has fallen several
times on the steps. Not sure, but I guess we better be safe.
Thanks[.] How is your Grandfather?” (Chestnut Depo. at
48, 100). Kane responded to Chestnut's question about his
grandfather but did not respond to her request to move Shover
to the bottom tier. (Id. at 50-51, 100). Chestnut
responded about Kane's grandfather but did not follow up
on her request that Shover be moved to the bottom tier.
(Id. at 51, 100). Chestnut avers that “[a]s
far as [she] knew, Mr. Shover ...