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DePaola v. Clarke

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

August 5, 2019

ERIC J. DePAOLA, Plaintiff,
HAROLD CLARKE, ET AL., Defendants.

          Charles C. Moore and Alyson M. Cox, White & Case LLP, Washington, D.C., for Plaintiff;

          Margaret Hoehl O'Shea, Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Defendants Fred Schilling, E. R. Barksdale, Stephanie Fletcher, Terrence Huff, Donnie Lee Trent, Denise Malone, Jessica Ketron, Kevin Mullins, Jeffrey Kiser, Randall Mathena, and Tracy Ray.


          James P. Jones United States District Judge.

         Eric J. DePaola, a Virginia inmate, asserts claims pursuant to 42 U.S.C. § 1983 against several prison administrators and mental health professionals. He contends that they violated his Eighth Amendment rights by failing to adequately treat his serious mental health needs. Following discovery, the defendants have moved for summary judgment. I find that the motion should be granted as to certain of the defendants, either as time-barred, based on qualified immunity, or as factually insufficient as a matter of law. However, I will deny summary judgment as to defendants Fletcher, Huff, and Trent.


         This case has a lengthy procedural history. In 2015, DePaola, proceeding pro se, commenced this suit against defendants Schilling, Barksdale, Fletcher, Huff, Trent, and a number of other defendants who are no longer parties to the case. He asserted a claim related to treatment of his alleged physical ailments along with a claim that the defendants failed to diagnose or treat his mental health issues. The defendants filed motions to dismiss, which I granted. I held that “DePaola's complaints about prison life that accrued before July 19, 2013, are barred by the two-year limitations period.” DePaola v. Clarke, No. 7:15CV00403, 2016 WL 5390930, at *3 (W.D. Va. Sept. 27, 2016). Regarding his mental health-related claim, I held that DePaola had failed to allege facts sufficient to state a claim of deliberate indifference to his serious mental health needs.

         DePaola appealed the dismissal of his claims, and the court of appeals appointed counsel to represent him on appeal. The court of appeals affirmed my dismissal of DePaola's physical health-related claims, but it reversed my dismissal of DePaola's mental health-related claims.

         The court of appeals applied the continuing violation doctrine, holding that the statute of limitations on a prisoner's claim for a continuing violation of his Eighth Amendment rights would not begin to run “until the date, if any, on which adequate treatment was provided.” DePaola v. Clarke, 884 F.3d 481, 487 (4th Cir. 2018). Moreover, “[a] plaintiff's claim of a continuing violation may extend back to the time at which the prison officials first learned of the serious medical need and unreasonably failed to act.” Id. The court held that DePaola had alleged a continuing violation of his Eighth Amendment rights by the defendants named in the original Complaint that continued within the two years prior to his filing of the Complaint, and therefore his mental health-related claims against those defendants were not time-barred.[1]

         The court of appeals further held that “DePaola's allegations of deliberate indifference to his serious mental illnesses are sufficient to state a claim against defendants Barksdale, Schilling, Fletcher, McDuffie, Huff, and Trent, because he has alleged serious needs about which those defendants knew and failed to provide necessary treatment.” Id. at 488. The court of appeals thus remanded DePaola's mental health-related claims to this court for further proceedings.

         DePaola's appellate counsel has continued to represent him following the remand. With leave of court, DePaola filed an Amended Complaint on June 20, 2018, which added defendants Mathena, Ray, Kiser, Mullins, Malone, Ketron, and Everett McDuffie, M.D., a psychiatrist. Dr. McDuffie filed a Motion for Summary Judgment. DePaola then sought leave to file a Second Amended Complaint adding defendant Syed Zafar Ahsan, M.D., another psychiatrist, which I granted. Dr. Ahsan moved to dismiss with documents outside of the pleadings, and his motion was converted to a Motion for Summary Judgment. The motions by Drs. McDuffie and Ahsan were referred to a magistrate judge, who issued a Report and Recommendation recommending that I grant them. DePaola objected to that recommendation.

         Defendants Schilling, Barksdale, Fletcher, Huff, Trent, Malone, Ketron, Mullins, Kiser, Mathena, and Ray (collectively, “remaining defendants”) then moved for summary judgment.[2] The parties fully briefed and orally argued that motion, along with the objections to the Report and Recommendation. Following oral argument, I overruled DePaola's objections to the Report and Recommendation and granted summary judgment in favor of Drs. McDuffie and Ahsan. DePaola v. Clarke, No. 7:15CV00403, 2019 WL 2484295, at *4 (W.D. Va. June 14, 2019). I also granted the parties leave to file supplemental briefs on the issue of qualified immunity. Those briefs have now been submitted, and the pending Motion for Summary Judgment by the remaining defendants is ripe for decision.

         The Second Amended Complaint contains two counts. Count I asserts a claim against all defendants for their deliberate indifference to DePaola's serious mental health issues. It seeks compensatory and punitive damages, as well as injunctive relief. Count II names only defendant Malone, a prison system administrator, and alleges that her failures to adequately train her subordinates and to create sufficient policies and procedures resulted in harm to DePaola's mental health. Count II also seeks compensatory and punitive damages and injunctive relief.


         The following facts taken from the summary judgment record are either undisputed or, where disputed, are stated in the light most favorable to DePaola, the nonmovant.

         DePaola's incarceration with the Virginia Department of Corrections (“VDOC”) began in 2004 when he was a teenager. A court-ordered mental health evaluation performed when he entered the VDOC system indicated that he may have been in the early stages of bipolar disorder; that he suffered from depression, impulsivity, suicidal thoughts, and hallucinations; and that he should receive ongoing mental health treatment. DePaola has been housed at Red Onion State Prison (“Red Onion”) since 2007 and was placed in restrictive housing immediately upon arrival there. He had received a disciplinary infraction at another state prison for possessing a weapon in his shoe. In December 2008, he was transferred to a progressive housing unit with the intention of moving him to a lower security level. However, in June 2009, while awaiting transfer to a lower security facility, DePaola stabbed a corrections officer. He was then moved back to segregation.

         DePaola was criminally charged for the stabbing and evaluated to determine his competency to stand trial. A licensed clinical psychologist, Dr. Steward, conducted the examination at Red Onion. Dr. Steward issued a report on November 9, 2010, diagnosing DePaola with depression and anxiety and recommending that DePaola receive treatment for those and other mental health issues.

         Most of DePaola's years at Red Onion have been spent in segregation, although he has been moved for brief periods to less restrictive housing. He received charges for possessing sharpened instruments as recently as 2018. At oral argument, counsel represented that DePaola is currently placed in a less restrictive unit that mimics general population, allowing him to have a job and to participate in recreational activities.

         During his more than 15 years of incarceration with VDOC, DePaola has had approximately 72 documented interactions with Red Onion mental health staff, most of which took place at the door to his cell and lasted only a few minutes. Until February 2019, he had never spoken to a psychiatrist or psychologist while at Red Onion, nor has he ever been given any medication for his mental illness. The remaining defendants claim they never witnessed any behavior that revealed a need for mental health treatment. However, for purposes of their summary judgment motion, they concede that there is at least a genuine factual issue as to whether DePaola has an objectively serious mental health need.

         In 2010, DePaola claimed to be suicidal. He was placed in five-point restraints. A mental health staff member reported that DePaola later told him that he had been joking and just wanted to be moved out of his segregation housing unit, but DePaola denies this. He received no treatment after this incident.

         For 16 days thereafter, DePaola went on a hunger strike, allegedly attempting to kill himself by starvation. He ultimately missed at least 29 meals. He alleges that he began eating again after being informed that he would be able to speak with Dr. Ahsan, the prison's psychiatrist. He never actually saw or spoke with Dr. Ahsan or another psychiatrist.

         DePaola filed several written grievances and complaints regarding his mental health treatment. On April 12, 2010, he filed a grievance stating that he was not classified as a mentally ill inmate and did not want to be housed with mentally ill inmates. He was upset that he had to listen to the constant shouting and banging from other inmates.

         On April 23, 2010, DePaola submitted an informal complaint stating that he had asked to see a psychologist several times but had received no response. Defendant Jessica Ketron, a Qualified Mental Health Professional (“QMHP”), indicated there was no record of those requests. She stated that she had attempted to meet with DePaola but he had been sleeping. He was advised to resubmit his request. On May 11, 2010, DePaola submitted a grievance stating he had not been seen by a QMHP. The grievance was deemed unfounded, and it was noted that he had been seen by Ketron on July 13, 2010.

         For the next four and a half years, DePaola did not submit any other requests, complaints, or grievances requesting mental health treatment. He submitted a complaint on November 24, 2014, stating that he had verbally asked to see mental health professionals, but his request had been ignored. Defendant Stephanie Fletcher, a QMHP, responded that she was in the process of reviewing his records and that he would be informed of the mental health department's decision.

         In December 2014, DePaola submitted a grievance asking to be seen by a psychiatrist. The grievance was rejected on the ground that DePaola had requested services which are not encompassed by the grievance process. On January 14, 2015, DePaola submitted a complaint requesting access to mental health services. Fletcher responded, stating that DePaola was receiving mental health services. DePaola then filed a grievance asking to be seen by a psychologist or mental health professional. QMHP Huff responded in a memorandum summarizing DePaola's recent contacts with mental health.

         DePaola did not submit any emergency grievances between 2014 and the present in which he claimed to be suicidal or requested attention from mental health staff, despite submitting emergency grievances complaining about various other topics.

         VDOC's QMHPs must have at least a master's degree in psychology, social work, or a relevant human services field and must be trained in the diagnosis and treatment of mental disorders. They work under the supervision of a licensed clinical psychologist and are not supervised by the Warden. All staff responsible for supervising inmates receive annual suicide prevention training. Mental health staff also receive annual training on other topics.

         Each inmate is assessed by a QMHP upon arrival at Red Onion and is given a mental health classification code. The QMHP should review available records as part of this assessment, in addition to talking to the inmate about things like mental health history and suicidal ideations. The classification codes range from MH-0, indicating no mental health needs, to MH-4, reflecting serious mental illness (“SMI”). When an inmate is assessed MH-2 or higher, the QMHP should request recent and pertinent mental health records from outside providers. In determining the code to assign, the QMHP is to focus on the current mental health status rather than solely on history of treatment.

         The codes may be revised based on the inmate's overall progress and stability. Every inmate classified as MH-1 or higher receives an annual review. Those with a code of MH-0 do not automatically receive a status review, but their counselor can request one.

         Psychiatric services are provided by an outside contractor. A QMHP can refer an inmate to the psychiatrist. The psychiatrist is not supervised by the Chief of Mental Health Services. The psychiatrist sees nine to 15 inmates per day when at Red Onion, and QMHPs try to screen his caseload so that only the inmates who really need to see him will see him. The QMHPs essentially act as gatekeepers to the psychiatrist.

         Inmates can request mental health service at any time and can use the grievance procedure to lodge complaints about mental health care. An inmate can press a button in his cell to contact a correction officer for immediate assistance. An inmate assigned to restrictive housing who has not been screened within the last 12 months should be screened within 24 hours of assignment to determine whether he is at risk of harm to self or others or deterioration. Those determined to be at risk are seen after one day in special housing, and then the QMHP determines how often to assess them thereafter. Those with a code of MH-1 or higher should be assessed at least every 30 days. Those with a code of MH-0 are to be assessed a minimum of every three months.


         The record contains the following evidence as to each individual remaining defendant.

         1. QMHP Stephanie Fletcher.

         Fletcher was hired as a Psychology Associate I in October 2013. She has a Master of Education degree in counseling and human development. She has completed some coursework toward a Ph.D. in educational psychology.

         On October 24, 2014, Fletcher interacted with DePaola during monthly rounds in restricted housing. He reported being depressed and asked to see the psychiatrist. He denied suicidal or homicidal ideations. She advised that she would send him a Mental Health History packet to complete, but he never sent it back to her. Fletcher opined that he did not present any mental health issues. She opted to keep DePaola classified as MH-0. Her visit documentation says that DePaola had just returned from Marion Correctional Treatment Center, which was incorrect, leading DePaola to surmise that this document actually refers to an assessment of a different inmate.

         In response to an informal complaint, Fletcher noted that she had told DePaola on October 24, 2014, that there was a process for consideration to see the psychiatrist and that she was reviewing his medical records for that purpose. This response was submitted on December 9, two and a half months after the referenced conversation. On January 29, 2015, in response to another complaint, Fletcher stated that DePaola was receiving mental health services and that mental health would continue to monitor him.

         Fletcher testified that she needs to spend some time with an inmate in order to assess the person and determine if he is malingering. She stated that visits for an MH-0 inmate only lasted a few minutes, long enough to introduce herself and ask if the inmate had any issues.

         2. QMHP Terrence Huff.

         Huff was hired as a Psychology Associate I in January 2007. In January 2015, he was promoted to Psychology Associate II and became the supervisor of Red Onion's mental health services. Huff has a Master of Education degree in mental health counseling and human development. He retired in January 2019.

         Huff did routine 90-day checks on DePaola on July 17, 2007, October 16, 2007, and January 23, 2008, and noted no concerns. He tried to talk to DePaola on June 7, 2010, regarding DePaola's hunger strike, but DePaola was uncooperative. Huff noted that DePaola had his property packed as if he was anticipating moving cells. Huff tried to talk to DePaola again on June 14, 2010, but DePaola was uncooperative. On June 21, 2010, Huff interacted with DePaola and noted that DePaola had been eating again and displayed no signs of mental disorder.

         On April 21, 2011, Huff did a 90-day check and noted no concerns. On May 3, 2011, Huff performed a 30-day assessment following DePaola's placement in restrictive housing. He noted no concerns. He recommended that DePaola's status be changed from MH-1 to MH-0. Huff attempted to do a 90-day check on July 11, 2011, but DePaola was not in his cell. Huff observed that the cell was neat and tidy and staff had not reported any concerns or problems.

         On October 27, 2011, and January 18, 2012, Huff performed 90-day checks on DePaola and noted no concerns. Huff again met with DePaola for a 90-day check on July 11, 2013. Huff performed a mini-mental state examination (“MMSE”), which is a brief paper and pencil questionnaire used to assess cognitive functioning. A score of 24 to 30 indicates that a person is functioning within the normal range. DePaola scored 29. Huff noted no impairments or mental health complaints. With Huff's blessing, DePaola was moved to a closed housing unit mirroring general population. DePaola had no documented interactions with mental health staff for more than 13 months after his move to this housing unit.

         Huff met with DePaola on February 4, 2015, at DePaola's request while he was in restrictive housing. Huff administered a MMSE in a office. DePaola scored 30. Huff noted no concerns.

         In response to a 2015 grievance, Huff prepared a memorandum summarizing DePaola's recent contacts with mental health staff. He concluded that DePaola had been monitored and had not been denied access to mental health services. When DePaola appealed this response, VDOC Chief of Mental Health Services Denise Malone emailed Huff requesting information. Huff responded by email, noting that DePaola had recently scored well on an MMSE and that there was no basis for diagnosing DePaola with a mental illness. As a result, Malone recommended that the appeal be deemed unfounded by the VDOC Health Services Director, and it was.

         In November 2015, after DePaola filed this suit, Huff wrote a memorandum to then-Warden Barksdale summarizing DePaola's records and reporting that the mental health department had not seen any indications of an SMI and that referral to a psychiatrist had not been warranted. On November 15, 2016, Huff again reviewed DePaola's available records and determined that he did not meet the criteria to be designated as having a SMI. On two occasions, ...

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