United States District Court, W.D. Virginia, Roanoke Division
ERIC J. DePAOLA, Plaintiff,
HAROLD CLARKE, ET AL., Defendants.
Charles C. Moore and Alyson M. Cox, White & Case LLP,
Washington, D.C., for Plaintiff; John T. Jessee and Sarah C.
Jessee, LeClairRyan, PLLC, Roanoke, Virginia, for Defendant
Dr. Everett McDuffie; Margaret Hoehl O'Shea, Assistant
Attorney General, Office of the Attorney General of Virginia,
Richmond, Virginia, for Defendants
Schilling, E. R. Barksdale, S. Fletcher, Huff, Trent, Denise
Malone, Jessica Ketron, Kevin Mullins, Jeffrey Kiser, Randall
Mathena, Tracy Ray, and Dr. Syed Zafar Ahsan.
OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE
civil case brought by an Virginia inmate pursuant to 42
U.S.C. § 1983 against several mental health
professionals and prison administrators, the magistrate judge
issued a Report and Recommendation in which she recommended
granting summary judgment in favor of two contract
psychiatrists. The plaintiff has timely objected to the
Report and Recommendation. For the reasons that follow, I
will overrule the plaintiff's objections, adopt the
Report and Recommendation, and enter judgment in favor of
defendants Drs. McDuffie and Ahsan.
Eric DePaola's claims against Drs. Everett McDuffie and
Syed Zafar Ahsan allege that they were deliberately
indifferent to his serious mental health needs in violation
of the Eighth Amendment. DePaola has offered evidence that he
has a long history of mental illness and mental health
treatment. He asserts that he repeatedly requested mental
health treatment while an inmate at Red Onion State Prison
(“Red Onion”), but Drs. McDuffie and Ahsan did
not evaluate him and failed to provide him any treatment.
magistrate judge's Report and Recommendation
(“Report”) aptly summarizes the full procedural
history and factual record relating to Drs. McDuffie and
Ahsan, and in the interest of expediency, I will not repeat
them here. Briefly, I previously granted the defendants'
Motion to Dismiss DePaola's original pro se Complaint,
and DePaola appealed. The Fourth Circuit remanded
DePaola's mental health-related claims back to this
court, and he later amended his complaint twice to add
additional parties and to clarify his claims. The parties
engaged in preliminary discovery, and Dr. McDuffie moved for
summary judgment early in the discovery period. Dr. Ahsan
moved to dismiss but supported his motion with evidence
outside the pleadings, so the magistrate judge converted the
Motion to Dismiss into a Motion for Summary Judgment. After
hearing oral argument, she gave the parties approximately one
month to conduct further discovery and submit additional
evidence on the motions filed by Drs. McDuffie and Ahsan.
Both the plaintiff and Dr. McDuffie did so, but the
magistrate judge excluded some of the evidence submitted by
the plaintiff because it was untimely submitted without leave
of court and had been previously available to the plaintiff.
Report, the magistrate judge found that DePaola had presented
enough evidence of a serious medical need to create a genuine
issue of fact as to the objective prong of the deliberate
indifference standard. See Farmer v. Brennan, 511
U.S. 825, 834 (1994). However, she found that he had failed
to produce sufficient evidence to create a jury issue on the
subjective prong of the deliberate indifference inquiry. She
noted that there was no evidence that Dr. McDuffie or Dr.
Ahsan knew about DePaola's mental health history, 2010
suicide threats, or 2010 attempt to starve himself. DePaola
admits that he was never evaluated or treated by Dr. McDuffie
or Dr. Ahsan. VDOC policy provides that qualified mental
health professionals (“QMHPs”) evaluate offenders
and refer them to psychiatrists. The psychiatrists, who are
contracted providers, are not expected to see inmates who
have not been referred. They do not evaluate offenders based
on the offenders' demands. Here, the QMHPs determined
that a referral was unwarranted. The magistrate judge found
that although this evidence might bear upon whether the QMHPs
were deliberately indifferent, it is not evidence of the
state of mind of Dr. McDuffie or Dr. Ahsan. Moreover, Dr.
McDuffie was not even working at Red Onion in 2010, when
DePaola claimed to be suicidal and went on a hunger strike,
which supports McDuffie's testimony that he was unaware
of these incidents.
magistrate judge also found that DePaola's testimony that
he repeatedly called out to Dr. McDuffie and Dr. McDuffie
refused to meet with him was insufficient to establish
deliberate indifference. Even if Dr. McDuffie responded
“nope” or “I don't make rounds, ”
as DePaola asserts, Pl.'s Opp'n to Dr. McDuffie's
Mot. for Summ. J. Moore Decl. Ex. 1, ECF No. 96-3 at 4, these
statements would only show that Dr. McDuffie knew DePaola
wanted attention, not that he knew DePaola had an objectively
serious mental health need and consciously disregarded that
need. The magistrate judge reasoned that as a practical
matter, if prison mental health staff were expected to
respond to every inmate who called out to them, they would be
continually sued and would be unavailable to treat serious
plaintiff filed timely objections to the Report, which are
now before me for de novo determination. A party may respond
to objections to a magistrate judge's recommended
disposition within 14 days. Fed.R.Civ.P. 72(b)(2). Dr.
McDuffie has responded to DePaola's objections, but Dr.
Ahsan has not. Where, as here, objection has been made to a
magistrate judge's report and recommendation on a
dispositive matter, “[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
plaintiff argues that the magistrate judge improperly
excluded certain evidence that he filed beyond the deadline
she set for submitting supplemental evidence in opposition to
these defendants' motions. I find that the magistrate
judge did not err in striking the late-submitted evidence.
Nevertheless, as part of my de novo review, I will consider
that evidence now.
evidence stricken by the magistrate judge can be summarized
as follows. A report prepared by Deborah White, Ph.D., dated
August 15, 2003, indicated that DePaola had a major mental
illness involving depression, impulsivity, irrational
thinking, and poor judgment. Dr. White opined that he may
have been in the beginning stages of bipolar disorder. The
report shows that when he first entered into the Virginia
Department of Corrections (“VDOC”) system,
DePaola had a history of mental health treatment, and Dr.
White wrote that he required ongoing treatment. This report
is irrelevant to the plaintiff's objections because the
magistrate judge found that DePaola has an objectively
serious mental health need. The only issue is whether the
psychiatrist defendants knew of and disregarded DePaola's
serious mental health need. There is no evidence that either
Dr. McDuffie or Dr. Ahsan ever saw Dr. White's 2003
report, so it is not relevant to that question.
progress note from Powhatan Correctional Center dated March
10, 2004, reflects DePaola's prior diagnosis of ADHD and
prescription of medications for mental health issues. On an
initial classification form dated February 29, 2004, under
“Recommended Program Needs, ” a box is checked
for “mental health.” Pl.'s Supp. Evid. Ex. C,
ECF No. 176-2. These pieces of evidence are likewise
irrelevant because there is no evidence that Drs. McDuffie or
Ahsan ever saw them, and again, the magistrate judge ...