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DePaola v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

June 14, 2019

ERIC J. DePAOLA, Plaintiff,
v.
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

          Fred 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

          JAMES P. JONES UNITED STATES DISTRICT JUDGE

         In this 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.

         I.

         Plaintiff 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.

         The 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.

         In her 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.

         The 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 medical issues.

         II.

         The 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.” Fed.R.Civ.P. 72(b)(3).

         The 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.

         The 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.

         A 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 ...


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