Gavino v. Queensberry et al

Filing 65

MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 06/10/15. (pmil, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Carlo Felizmenio Gavino, Jr.,
Plaintiff,

I:14cv975 (TSE/IDD)

V.

B. Queensbeny, et aL
Defendants.
MEMORANDUM OPINION

Carlo Felizmenio Gavino, Jr., a Virginia inmate proceeding pro se, has filed a civil rights
action, pursuant to 42 U.S.C. § 1983, alleging that defendants Lt. Bryan Queensberry and Sgt.

Albert Vanderpool used excessive force against him, andthatdefendant Dorothy Hightower, R.N.,
showed deliberate indifference to his serious medical needs. Defendants have filed a Motion for

Summary Judgment and a memorandum of law and affidavits to supporttheir motion.
Defendantsalso have provided plaintiff the notice required by Local Civil Rule 7(K) and Roseboro

V. Garrison. 528 F.2d 309 (4th Cir. 1975). Dkts. 53,54. Plaintiffhas submitteda responseto the

defendants' Motion. Dkt. 59.' Plaintiffhas also filed a Request/Motion for Extension, inwhich
he requests additional time to discover the addresses of defendants who have not yet been served.
Dkt. 55. As the additional defendants are not necessaryto adjudicate the merits of the case,
plaintiffs Motion must be denied, and the additional defendants must be dismissed from this

action. In addition, for the reasons that follow, the defendants' Motionfor Summary Judgment
must be granted.

' Plaintifffiled a Motion for Extension ofTime to respond to the defendants' Motion. Dkt.
56. Because plaintiffthen timely submitted his response, his Motionmust be denied, as moot.

I. Background

On August 1,2012, plaintiff was released from segregation at Lawrenceville Correctional

Center ("Lawrenceville") and returned to the general population. See Declaration byCarlo
Felizmenio Gavino, Jr. ("Decl. 3") [Dkt. 3] ^ 1

When he arrived at his cellbefore the 5:30 p.m.

counttime,he realized that he did not havea mattress. Id Thebuilding sergeant told plaintiffon
multiple occasions that he wouldfind a mattress for plaintiff. Id
was still waitingfor a mattress. Id

2-3. At 9:30 p.m., plaintiff

3-4. The sergeant told plaintiffto wait outside his cell

while he wentto look for a mattress, so plaintiffwaited in the unitdayroom. Id m 6-7.
At this time, the correctional officers were beginning to change shifts. The control booth

officer ordered plaintiffto return to his cell. Plaintiff"dismissed her," as he was waiting for the
sergeant to return. Id ^ 8. Another officer also told plaintiff to return to his cell, but he

continued to wait for the sergeant to retum. Id f 9. Whenthe sergeantdid return, he did not
have a mattress for plaintiff. Id 10. "Out offhistration,"plaintiffbeganto kick the door ofthe
unit. Id

11. The sergeant and other officers came into the unit, and plaintiff swore at the

officers to leave him alone. Id H 12.

At approximately 10:15 p.m., an officer requested assistance in dealing vwth plaintiff.

DefendantQueensberry responded as part of an emergencyresponse team. See Defendants'

Memorandum in Support ofthen- Motionfor Summary Judgment ("Defs.' Mem.") [Dkt. 54], Ex.
B (Queensberry Aff.)^ 5. Queensberry gave plaintiffseveral ordersto "cuff up" and to return to

his cell.^ Plaintiffrefused each ofthese orders. Id f 7. Plaintiffevaded the officers' attempt to
apprehend him and"began running around the pod." Id 18. Queensberry and otherofficers

^ In addition to his complaint, plaintiffsubmitted seven declarations describing the facts
underlying his lawsuit. These declarations are docketed as entries 3 through 9. Forsimplicity,
each will be cited as "Decl. [docket entry]."

^ According to Queensberry, to "cuffup" means to submit to handcuffs.

eventually succeeded in bringing plaintiffto the ground and placing him m handcuffs. Id

As the officers were attempting to apprehend him, plaintiff"wasenveloped byextreme
duress," and attempted to avoid apprehension. Decl. 3117. As he wasbeing handcuffed,

plaintiffnoticed thatQueensberry was holding his right arm and twisting his wrist. Id 118. In
response, plaintiff"bent forward at [his] waist and pulled [his] arms in toward [his] body while
moving in reverse." Id. H19. He also "launched a panicked flurry of strikesto [his] left side,"
without any thought to who or what he might hit. Id

and in a headlock, he "stopped struggling." Id

21-22. Once plaintiff was on the floor

23,26. Hethenalleges that Queensberry

pulled his right arm out perpendicular to his body and beganto twist it until it snapped. Id
25-26.

Once plaintiffhad beenhandcuffed, correctional officers broughthim to the medical

department. On the way to medical, plaintiffrepeatedly attempted to sit down, and eventually
had to be carried. Defs.' Mem., Ex. B H10;Decl. 3

30-31. Uponreaching medical, officers

"dropped [him] face downon the examination tableand put ankle shackles on [him]." Decl. 3 ^
32. Vanderpool allegedly placed the ankle shackles on plaintiff, and told him that he "[didn't]
care ifthey're on right or not." Id Nurse Segurathen conducted a pre-segregation examination
and treated several scratches and cuts. Id 134. Plaintiff told Segura that he believed that his

arm might be fractured because "numerous peoplefell on him." Defs.' Mem., Ex. H (Hightower

Aff.)18. Segura examined hisarm,observed no visible injuries, andconcluded thathe waslikely

suffering from tissue damage. Decl. 3 f 34; Defs.' Mem., Ex. I, at unniunbered page 10.
Plaintiffdeclined to have Segura check his vital signs or to conduct a full pre-segregation
evaluation. Decl. 3 ^ 34; Defs. Mem., Ex. H TI8.

When he arrived in segregation thatnight, plaintiffbegan to experience severe pain in his

anil. Hisarm"was noticeably swollen," andhe experienced a "rapidtwitching feeling... that
hurt badly." Decl. 3 ^ 37. Hisarm would then "contract hard" and"straighten involuntarily."
He states that "it feh as if something was squeezing from all sides." Id Plaintiff suffered from

this painall night andwasunable to stand, sit,or lay down for anysignificant period of time. Id
The next mommg, plaintiffsubmitteda request to see medical, but he was not contacted for several

days. Id 13 8. During these several days, plaintiffmade himselfa "makeshift sling" outofsome
ripped sheets and informed his family ofthe situation. Id ^ 39.

On August6,2012, plaintiffretumedto medical and was examined by NurseJenkins.

Defs. Mem., Ex. H ^ 9. Jenkins examined plaintiffs armandobserved bruising. She did not
observeany swelling, however, and found that plaintiffhad full rangeofmotion. Id She

prescribed 800mgof Motrin fora period of five days, instructed plaintiffto keep hisarmelevated
and to periodically apply a warm compress. Id Jenkins also told plaintiffto return to medical if
the problem continued. Id

Plaintiff states that Segura called him back to medical on August 8,2012. Decl. 341.

There are no medical records documenting this visit, however. See, e.g.. Defs.' Mem., Ex. H ^
10. Plaintiffstatesthat, on this occasion, Segura informed him that plaintiffs father had
repeatedly called requesting that plaintiffbe examined by a doctor. Decl. 3 f 41. Dr. Moreno

allegedly examined plaintiff, noticed thathis right arm wasswollen, and told plaintiffthat he was
likely experiencmg pain from tissue damage. Id Moreno then told plaintiffthat "he was going

to go ahead andorder[plaintiff] anx-ray anyway." The x-ray wasallegedly scheduled forAugust
14,2012. Id

Medical records indicate that Dr. Moreno and Nurse Hightower examined plaintiffon
August 15,2012. Defs.' Mem., Ex. H ^ 10. Plaintifftold Moreno and Hightower that he no

longerbelieved that his arm was broken, but that he was still suffering from "mild to moderate
pain" in his rightarmand elbow. Id. Uponexamination, Moreno found thatplaintiffhad normal
strength and range of motion in his right arm; neither Hightower nor Moreno believed that

plaintiffs arm was fractured. Id Nevertheless, Moreno submittedan x-ray request and

extended plaintiffs' Motrin prescription for an additional 30 days. Id Plaintiffs x-ray was
scheduled for August 21,2012. Id.f 11:Decl. 31144. Plaintiffwasreleased from segregation on
August 23,2012. Decl.31146.

Due to an unknown scheduling conflict, plaintiffdid not receive an x-ray until August27,
2012. Defs.' Mem., Ex. H 11;Decl. 3 T| 48. The x-ray revealed that plaintiffs right arm was
fractured. Defs.' Mem., Ex. H ^ 11. The next day, Moreno scheduled an appointment for
plaintiff to meet with an outside orthopedist. Defs.' Mem, Ex. H H12. Plaintiff visited the
orthopedist on August 29,2012. The orthopedist told plaintiffthat "not much could be done for

[him] because with the amountof time that had already passedthe bone had alreadybegun
healing." Decl.31150. The orthopedist alsoprovided plaintiffwitha sling. IdT|51. Upon his
return to Lawrenceville, plaintiff declined to receive additional pain medication. Defs.' Mem.,
Ex.Ht 13.

On October 22,2012, Moreno ordered follow-up x-rays. Id. ^ 14. Plaintiff received a

follow-up x-ray on November 14,2012,and returned to the orthopedist on December 4,2012. Id
Tl 15. The orthopedist informed plaintiffthat his arm was healing well and permitted him to
participate in all general activities. Decl. 3 f 54. Moreno examined plaintiff again on December
7,2012, and noted that his arm had healed. Defs.' Mem., Ex. H H15. Plaintiff states, however,

thatalthough his right arm is "fiilly fimctional," he suffers from "tinglmg, aching, and throbbing
sensations whichat times can be painful." Decl. 3 H55. Plaintiffalso statesthat his arm "either

feels rigid or unstable," and he believesthat he has sufferednerve damage at the locationofthe
break.

Id.

Hightower, the only remainmg medical defendant in this action,playedno direct role in
plaintiff's medical treatment other than providing assistance to Moreno in his examination of

plaintiffon August 15,2012. Defs.' Mem., Ex. H ^ 22. On August 21,2012, however, she
responded to plaintiffs August 1,2012 informal complaint, in which he asserted that his arm was

broken andrequired an x-ray. Id 117. Plaintiffthenfiled an informal complaint against
Hightower on August 26,2012, asserting that she had lied in her response to his original informal

complaint. Id f 18. Plaintiff filed another informal complaint on the same day, asserting that
Hightower liedto hisfather about the status of plaintiff's x-ray. Id ^119. Hightower spoke with
plaintiffs father on approximately August 22,2012. On that day, it appeared as if plaintiffhad

received an x-ray on August 21,2012, as his name hadbeen on the schedule for thatday. At the
time, Hightower did not have sufficient information to confirm whether plaintiff hadactually
received the x-ray on that day. Id

Plaintiff filed the instant action on July30,2014, alleging that Queensberry, Vanderpool,
and other correctional officers used excessive force on the night of August 1,2012; and that
Hightower and other medical officials showed deliberate indifference to his serious medical needs.
II. Standard of Review

Summary judgment"shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together withthe affidavits, if any, show that there is no
genuine issue as to anymaterial fact and thatthemoving party isentitled tojudgment as a matter of

law." Fed. R. Civ. P.56. The moving party bears the burden of proving thatjudgment as a

matter of law is appropriate. ^

Celotex Corp. v. Catrett. 477 U.S. 317,323 (1986). To meet

that burden, the moving party must demonstrate that nogenuine issues of material fact arepresent
for resolution. Id at 322. Once a movingparty has met its burdento show that it is entitled to

judgment as a matter of law, theburden shifts to thenonmoving party to pomtoutthespecific facts
that create disputed factual issues. Anderson v. Libertv Lobby. Inc.. 477 U.S. 242,248 (1986).
The nonmoving partymustpresent someevidence, otherthan its initial pleadings, to showthat
there is more than just a "metaphysical doubt as to the material facts." Matsushita Elec. Indus.

Co. V. Zenith Radio Corp.. 475 U.S. 574,586 (1986); see^so Celotex. 477 U.S. at 324(quoting
Rule 56(e) ("Rule56(e) ... requires the nonmoving partyto go beyond the pleadings and by her
own afiSdavits, or by [otherevidence] designate 'specificfacts showing thatthere is a genuine
issue for trial."'). In evaluating a motion for summary judgment,a districtcourt shouldconsider
the evidence in the light most favorable to the nonmoving partyand drawall reasonable inferences

fi-om those facts in favor of thatparty. United States v. Diebold. Inc.. 369 U.S. 654,655 (1962).
Those facts which the moving party bears the burden of proving are facts which are

material. "[T]he substantive law will identify whichfacts are material. Onlydisputes over facts

which might affect the outcome of the suitunder the governing lawwill properly preclude the
entryof summary judgment." Anderson. 477 U.S. at 248. An issue of material fact is genuine
when, "the evidence... create[s] [a] fair doubt; wholly speculative assertions will not suffice."
Ross V. Commc'ns Satellite Corp.. 759 F.2d 355,364 (4th Cir. 1985), abrogated on other grounds

by Price Waterhouse v. Hopkins. 490 U.S. 228 (1989). Therefore, summary judgment is
appropriate only whereno material facts are genuinely disputed and the evidence as a wholecould

not leada rational fact finder to rule for the nonmoving party. Matsushita Elec. Indus. Co..475
U.S. at 587.

III. Analysis

Summary judgment in favor of the defendants is appropriate because the pleadings,

affidavits, andexhibits on filedemonstrate that he did not useexcessive force against plaintiff.
To theextent thatanydisputes of fact exist, these disputes arenotmaterial, anddo notpreclude the
entry of summary judgment in favor of the defendants.
A. Exhaustion

Section 42 U.S.C. § 1997e(a)requires inmates to exhaust all administrative remedies

before filing a § 1983 action. Exhaustion of administrative remedies is no longer leftto the
discretion ofthe district courtandis mandatory, even if theexhaustion process cannot provide
prisoner with the reliefhe seeks. See» e^g.. Booth v. Chumer. 532 U.S. 731,741 (2001);
Woodford v. Ngo. 548 U.S. 81,86 (2006). TheU.S. Supreme Court hasexplicitly stated that"the
[§ 1997e(a)] exhaustion requirement requires properexhaustion." Woodford. 548 U.S. at 93.

"Proper" exhaustion requires "'usingallthesteps thattheagency holds outanddoing so... so that
the agencyaddressesthe issues on the merits."' Id at 90 (quotingPozo v. McCauehtrv. 286 F.3d

1022, 1024 (7th Cir. 2002),cert, denied. 537 U.S. 949 (2002)). In order to properlyexhaust

remedies, therefore, an inmate must fully comply with theprison's grievance procedures, and give

the prison "a fair opportunity to consider the grievance." Id at 95. Thus, a prisoner must follow
all procedural rules of the grievance procedure.

Virginia Department of Corrections ("VDOC") Operating Procedure 866.1 provides the
required steps that an inmate must pursue to exhaust administrative remedies. An inmate must

first attempt to resolve any issues mformally. ^

VDOC Op. Proc. 866.1(V)(B). Prison

officials must respond tothe inmate's complaint within fifteen days ofreceiving an informal

complaint. Sw id (V)(C). After seeking informal resolution, an inmate may file a regular

grievance to the warden or superintendent. The grievance must befiled within thirty days of the
underlying incident or occurrence, except in circumstances beyond an inmate's control, or in a

situation involving alleged sexual abuse. ^

id. fVIVAV1). Depending onthe subject of the

grievance, up to two additional levels of review by higher authorities within VDOC may be
available following the filing of a regular grievance. See id (VI)(C).

The evidence shows that plaintiffdid not fully exhaust his remedies before filing this

action. On August 26,2012,plaintifffiled an informal complaint against Vanderpool. See

Plaintiffs Exhaustion Affidavit ("Exh. Aff.") pkt. 15], Att., at unnumbered page 14. After
receiving a response on September 4,2012, plaintifffiled a regular grievance on September 17,
2012. Id at unnumbered pages 14-15. This grievance wasrejected as untimely, andthedecision
wasupheld by the Regional Ombudsman. Id at unnimibered page 16. Similarly, on September

17,2012, plaintiff filed an informal complaint against Queensberry. See id at unnumbered page

33. After receiving a response on September 20,2012, hefiled a regular grievance onSeptember
28,2012. Sm id at unnumbered pages 33-34. This grievance was rejected as untimely, andthis
decision wasagain upheld by the Regional Ombudsman. Id at unnumbered page 35.
OnAugust 26,2012, plaintifffiled an informal complaint against Hightower, asserting that

shelied in herresponse to hisAugust 21,2012 complaint. Id at unnumbered page 19. After she
responded to this grievance, he filed a regular grievance on September 22,2012. Id at
unnumbered pages 19-20. Because plaintiffdid not providea date of occurrence on this

grievance, thegrievance coordinator rejected the grievance. This decision was also upheld bythe
Regional Ombudsman. Id at unnumbered page 21. Plaintifffiled an additional informal

complaint against Hightower on August 26, alleging that she "attempted to mislead" his family
about his x-ray when she spoke with his father onthe phone. Id at unnumbered page 23. After

Hightower responded, plaintifffiled a regular grievance on September 22,2012. Id at
unnumbered page23-24. Thisgrievance wasrejected as untimely, andthe Regional Ombudsman
upheld this decision. Id. at unnumbered page 24.

Because plaintiffs grievances were not properly filed, VDOC officials did not have a

chance to review the merits of hisclaims. Hetherefore did notproperly exhaust his

administrative remedies on his claims against Queensberry, Vanderpool, and Hightower, these
claims must bedismissed.'* ^

Woodford. 548 U.S. at 86.
B.

Deliberate Indifference

Plaintiffs sole exhausted claim in this action is his contention that the Lawrenceville

medical staffcommitted "malpractice" inthe treatment of his fiactured arm. See^ e^g., Exh. Aff.,
at unnumbered pages 28-32. At present, there is no defendant in the lawsuit who can be

responsible for the harm alleged. Plaintiff hasmade several attempts to effectuate service on Dr.
Moreno; however, plamtifiTs attempt to serve Moreno and add him as a defendant in this action is

futile, as it is clear from the attached exhibits that neither Moreno norany other member of the
Lawrenceville medical staffviolated plamtiffs Eighth Amendment rights.
1. Eishth Amendment Standard

To prevail on a claim of deliberate indifference to serious medical needs, a plaintiff"must
allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical
needs." Estelle v. Gamble. 429 U.S. 97,105 f1976): see also Staples v. Va. Deo't ofCorr.. 904 F.

Supp. 487,492 (E.D. Va. 1995). Thus, a plaintiff must satisfy two distinct elements to showthat

he is entitled to relief First, he must provide evidence to show that he suffered from asufficiently
serious medical need. Amedical need is"serious" ifit has been diagnosed by a physician as

'* As plaintiffs allegations against Correctional Officer Moore are also unexhausted,
plaintifiTs request to effectuate service on defendant Moore must also be denied.
10

mandating medical treatment, or if a lay personwouldrecognize the need for medical treatment.
See Iko v. Shreve. 535 F.3d 225,241 (4th Cir. 2008) (quotingHendersonv. Sheahan. 196 F.3d

839, 846 (7th Cir. 1999)); see also Coooerv. Dvke. 814 F.2d 941,945-46 (4th Cir. 1987)

(determining that intense painfrom an untreated bullet wound is sufiBciently serious); Brown v.
District of Columbia. 514 F.3d 1279, 1284 (D.C. Cir. 2008) (concluding that the "intense and

often relentless pain" associated with untreated gallstones is sufficiently serious); ^ sw Hall v.

Holsmith. 340 F. App'x. 944,947 & n.3 (4th Cir. 2009) (holding thatflu-like symptoms did not
constitute a serious medical need).
Second, a plaintiff must show that the defendants acted with deliberate indifference to his

serious medical need. To act with deliberate indifference, a defendant "must both be aware of

facts from which the inference could be drawn thata substantial riskof serious harm exists, andhe
must also draw the inference." Farmer v. Brennan. 511 U.S. 825,837 (1994). An assertion of
mere negligence or malpractice is not enough to state a constitutional violation; instead, plaintiff
must allege and demonstrate "[d]eliberate indifference... by either actual intent or reckless

disregard." Miltierv. Beom. 896 F.2d 848,851 (4th Cu*. 1990), overruled inpartbyFarmer. 511
U.S. 825; see also Estelle. 429 U.S.at 106. In otherwords,a plaintiffmust showthat defendant's
actions were "[s]o grossly incompetent, inadequate, or excessiveas to shock the conscienceor to

beintolerable to fundamental fairness." Miltier. 896 F.2d at 851 (citations omitted). Toactwith
deliberate indifference, a defendant must have actual knowledge ofthe potential riskof harm to an
inmate; the mere fact that the defendant should have known ofthe risk is not sufficient to

constitute deliberate indifference.

e^g,. Young v. Citv of Mt Ranier 238 F.3d 567,575-76

(4th Cir. 2001); Gravson v. Peed. 195 F.3d 692,695 (4th Cir. 1999) ("Deliberate indiflference is a

very high standard - a showing of mere negligence will not meet it.").

11

2 Analysis

From August 1 through August 27,2012, no less than three members of the Lawrenceville

medical staffbelieved thatplaintiffsuffered onlyfrom tissue damage in his right arm. Based on
this information, the medical staffdid not believe that plaintiffwas suffering from any serious
medical need that required additional treatment. Such a decision does not constitute deliberate

indifference. To act with deliberate indifference, medical providers must"actually...
recognizeQ that [their] actions [are] insufficient" to protect plaintiff from a known risk of harm.

Parrish ex rel. Lee v. Cleveland. 372 F.3d294,303 (4thCir. 2004) (citing Brown v. Harris. 240
F.3d383,390-91 (4thCir. 2001)). The factthatthe medical staffincorrectly diagnosed plaintiff's
arm does not, standing alone, render their actions deliberately indifferent. While such treatment

may have been negligent, or - to use plaintiffs own words, malpractice - negligent medical
treatment does not violatethe EighthAmendment. Sre Gravson. 195 F.3d at 695 ("Deliberate

indifference is a very high standard - a showing of mere negligence will not meetit.").
It is alsoclear that medical staffadjusted theirtreatment as necessary to respond to their
evolvingunderstanding ofthe nature ofplaintiffs injury. On August6, SeguraprescribedMotrin

to plaintiffto manage his pain. Moreno further extended plaintiffs prescription on August 15,in
response to plaintiffs complaints of continued pain. These decisions were reasonable based on

the providers' medical judgment of the extent of plaintiffs injuries. Segi e^, Snioes v. DeTella.
95 F.3d 586,592 (7th Cir. 1996) ("Whether and how pain associated with medical treatment

should be mitigated is for doctors to decide free from judicial interference, except in the most
extreme situations."). Further, Moreno ordered x-rays for plaintiff in response to plaintiffs

request, and, after discovering that plaintiffactually had fractured hisarm, immediately sent
plaintiffto an outside specialist Rather than deliberate indifference, suchactions showan

12

evolving response to plaintiffs needs andan effort to provide him withthemost effective
treatmentunder the circumstances. Accordingly, it is clear that none ofthe medical staff acted

with deliberate indifference toplaintiffs serious medical needs. Therefore, plaintiffs motion to

attempt service on Dr. Moreno must be denied.^
Inthis regard, it is important to note that, although the record does notreflect deliberate
indifference on thepart of Lawrenceville medical staff,it doesreflecta lack of reasonable care.

The VDOC needs toensure that, in the future, its inmates receive reasonable, non-negligent
medical care.

IV. Conclusion

For the foregoing reasons, defendants* Motion for Summary Judgment will be granted.
An appropriate Judgment and Order shall issue.

Entered this

day of.

2015.

T,S. Ellis, m

Alexandria, Virginia

United StatesDistf ct Judge

This conclusion also mandates dismissal ofthe claims against Nurse Jenkins.
13