Church, Sr. v. Eastern Shore Regional Jail et al

Filing 12

MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 05/20/16. (kgra, )(c/s)

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

Dr. Kevin W. Church, Sr.,
Plaintiff,

V.

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l:15cv653 (LMB/JFA)

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Captain Roger Kennedy, ^ aL,
Defendants.

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MEMORANDUM OPINION

Dr. Kevin W. Church, Sr., a Virginia inmate proceeding pro se, has filed a civil rights

action, pursuant to 42 U.S.C. § 1983, alleging various unconstitutional practices at the Eastern

Shore Regional Jail ("ESRJ")- Plaintiff has applied to proceed in forma pauperis in the lawsuit.
(Dkt. No. 2) By an Order dated June 23, 2015, deficiencies in the initial complaint were

discussed, and plaintiff was allowed an opportunity to particularize and amend his allegations in
an amended complaint, to state claims for which §1983 relief is available. In addition, plaintiff

was directed to sign and return a Consent Form and an affidavit concerning exhaustion of his
administrative remedies. Plaintiff has complied with those instructions. After careful

consideration, plaintiffs claims must be dismissed pursuant to 28 U.S.C. § 1915A(b)(l) for
failure to state a claim.'

' Section 1915A provides:
(a) Screening.—The court shall review, before docketing, iffeasible or, in any event,
as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.

(b) Grounds for dismissal.—On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which relief

L Standard of Review

In reviewing a complaint pursuant to § 1915A, a court must dismiss a prisoner complaint
that is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C.
§ 1915A(b)(l). Whether a complaint states a claim upon which relief can be granted is
determined by "the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6)."

Sumner v. Tucker. 9 F. Supp. 2d 641,642 (E.D. Va. 1998). Thus, the alleged facts are presumed
true, and the complaint should be dismissed only when "it is clear that no relief could be granted
under any set of facts that could be proved consistent with the allegations." Hishon v. King &

Spalding. 467 U.S. 69, 73 (1984). To survive a 12(b)(6) motion, "a complaint must contain

sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"
Ashcroft V. Iqbal. 556 U.S. —, —, 129 S. Ct. 1937,1949 (2009) (^quoting Bell Atlantic Corp. v.

Twomblv. 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiffpleads
factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Id On the other hand, "[tjhreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice" to meet this standard,

id., and a plaintiffs "[f]actual allegations must be enough to raise a right to relief above the
speculative level...". Twomblv. 550 U.S. at 55.

Courts may also consider exhibits attached to the complaint. United States ex rel.
Constructors. Inc. v. Gulf Ins. Co.. 313 F. Supp. 2d 593, 596 (E.D. Va. 2004). Where a conflict

exists between "the bare allegationsof the complaintand any attached exhibit, the exhibit
can be granted; or

(2) seeksmonetary relieffroma defendant who is immune fromsuch
relief.

prevails." Id- at 596 (citing Favetteville Investors v. Commercial Builders. Inc.. 936 F.2d 1462,
1465 (4th Cir.1991)).
IL Analysis
A. General Deficiencies

In general, despite the instructions and guidance provided in the Order of June 23, the

amended complaint (Dkt. No. 6) fares little better than did the initial complaint. In the first

paragraph of the amended complaint, plaintiff reasserts allegations fi^om the initial complaint that

he was wrongfullyarrested and prosecutedand is being detained unlawfiilly. Am. Compl. at 5.
As explained in the Order of June 23, claims pertaining to the sufficiency of a criminal trial are
not properly raised in a §1983 complaint. Instead, where a claim attacks the fact of confinement

or the lawfiilness of state criminal proceedings, the appropriate remedy is a petition for a writ of
habeas corpus pursuant to 28 U.S.C. §2254.

Wilkinson v. Dotson. 544 U.S. 74,78-82

(2005) (summarizing the distinctions between § 1983 and habeas actions). Plaintiff's claims

regarding his allegedly unlawful arrest and conviction thus must be dismissed, without prejudice
to his ability to reassert them in a §2254 application following their exhaustion before the
Supreme Court of Virginia.

Second, much of the amended complaint is taken up with numerous descriptions of

events and situations experienced by inmates at ESRJ other than the plaintiff himself Plaintiff
asserts that other inmates were transferred after they "legitimately and appropriately" complained

about conditions at ESRJ. Am. Compl. at 6-7. He also provides a list of "known medically

deprived inmates" at ESRJ,alongwith descriptions of their conditions. Id at 12-14. In addition,
plaintiffaccuses ESRJ of being"deceitful and fi*audulent" in its financial practices with inmates

in general, id at 7-8, and of failing to provide adequate educational opportunities to assist
inmates in "successfully reintegrat[ing] back into society." Id at 8. To the extent that plaintiff
seeks to sue on the basis of these allegations and to seek relief on behalf of other inmates, he has

no standing to make suchrequests.^ To statea civilrights claim, one mustallege that he,
himself, sustained a deprivation of a right, privilege, or immunity secured by the Constitution or
federal law. See Inmates v. Owens. 561 F.2d 560 (4th Cir. 1977). To demonstrate standing, a
plaintiff must allege personal injury fairly traceable to a defendant's allegedly unlawful conduct
and likely to be redressed by the requested relief See Allen v. Wright. 468 U.S. 737,751 (1984);
Vallev Forge Christian College v. Americans United for Separation of Church & State. 454 U.S.
464,472 (1982). Here, then, to the extent that plaintiff alleges that defendants' actions have

negatively impacted inmates other than himself, he has no standing to make such claims, and
they are subject to dismissal for failure to state a claim pursuant to § 1915A.
B. Requirement of medical co-pavments

In the first of plaintiffs three discemable claims for relief based on his personal
experiences, he alleges that "several of us... were told (and money was subsequently taken from
our accounts) that we could not see or obtain the proper medical specialist help (doctors or
surgeons, counselors, etc.) unless we had the money in or placed in our commissary accounts to

cover their fees ... and cover the excessively high co-pays, medical examines [sic], equipment,

etc., in which we as 'indigent inmates' (patients) should have been paid for by the funds the

ESRJ is receiving from the state...." Am. Compl. at 7. Plaintiff has provided copies of two

^The amended complaint contains a prayerfor injunctive reliefin the form of "investigating our
complaints...." (Am. Compl., §V)

exhibits which bear upon this claim. One reflects that plaintiff was required to pay a total of
$60.00 as co-pays for three prescriptions on June 18,2015. In the second, which is also dated
June 18,2015, the $25.00 co-pay for plaintiffs visit to a doctor was crossed out, and "0" was
deducted from his inmate account.

It is recognized that the requirement of a co-payment for prison medical services is not
per ^ deliberate indifference to a serious medical need. ^

Reynolds v. Wagner. 128 F.3d 166,

174 (3d Cir. 1997); Johnson v. Dep*t of Pub. Safetv & Correctional Servs.. 885 F. Supp. 817,
820 (D. Md. 1995). Inmates are not entitled to free medical care, and an inmate's displeasure at

having to pay such co-payment does not present a constitutional claim. Johnson. 885 F. Supp. at
820. Moreover, the allocation of the cost of medical care is a matter of state law.

Citv of

Revere v. Mass. Gen. Hosp.. 463 U.S. 239,245 (1983). Only when medical care is denied to an
inmate because of inability to make a co-payment are deliberate indifference concerns under the

Eighth Amendment implicated. See, e.g.. Collins v. Romer. 962 F.2d 1508,1514 (10th Cir.
1992). Here, plaintiff does not allege that he personally was ever denied medical care due to
inability to make a co-payment, and the two exhibits he has supplied plainly suggest otherwise:

in one instance, plaintiff received three prescriptions when he made a $20.00 co-pay for each,
and in the other the co-pay of $25.00 for his doctor's visit was waived. Accordingly, plaintiffs

claim that his co-payments for medical services at ESRJ are unconstitutional must be dismissed
pursuant to §1915A.
B. Deliberate Indifference

In plaintiffs second claim for relief based on his personal experiences, he alleges that he
has suffered deliberate indifference to his serious medical needs at ESRJ. Plaintiff states that he

is an Army veteran who in 1997 underwent several days of extensive medical examinations and
testing at Walter Reed Army Medical Center, which diagnosed him with "Mysterious Gulf War

Syndrome and mild Post-Traumatic Stress Disorder," prescribed unspecified "medicine," and
provided counseling with a military psychiatrist and psychologist. Am. Compl. at 10. Plaintiff
further alleges that he "continued this regiment [sic] from time to time over the past several
years, accompanied with exercise, steam room & sauna settings to keep [his] Gulf War Illness

under control;" however, since his imprisonment, "all of this has been minimized, inadequate, or
doesn't exist." Id, Plaintiff complains that he is deprived of the "constant availability" of the
Veterans' Administration counselors, chaplains and doctors he previously enjoyed, did not
receive "meds" at ESRJ until June, 2015, and that it also was not until then that blood tests were

done to determine his level of iron deficiency. Plaintiff concludes, "I desperately need my
vitamins and iron for my diminishing eye care and bags accumulating beneath them." Id
Plaintiff includes no allegations linking any of the named defendants to these claims of

inadequate medical treatment.^
To state a cognizable Eighth Amendment claim for denial of medical care, a plaintiff
must allege facts sufficient to show that jail officials were deliberately indifferent to a serious
medical need. Estelle v. Gamble. 429 U.S. 97,105 (1976); Staples v. Va. Dep't of Corr.. 904

F.Supp. 487,492 (E.D.Va. 1995). To establish that inadequate medical treatment rises to the
^None of the defendants named in the initial complaint were amenable to suit under §1983. In
response to the June 23 Order of instructions, plaintiff in the amended complaint has listed as
defendants RogerKennedy, Captain of ESRJ; NurseCathy Aldrige; and Sgt. Karen Sample, whom
he describes as "inmate accounts clerk and accounts receivable." Am. Compl. at 2-3. Plaintiff

includes no explanation within his "Statement of the Claim" of why he believes these individuals
should be held liable to him or the manner in which any ofthem acted to violate his constitutional
rights.

level of a constitutional violation, a plaintiff"must allege acts or omissions sufficiently harmful
to evidence deliberate indifference to serious medical needs." Id. at 105; see also Staples v. Va.
Dep't of Corr.. 904 F. Supp. 487,492 (E.D. Va. 1995). Thus, plaintiff must allege two distinct

elements to state a claim upon which relief can be granted. First, he must allege a sufficiently
serious medical need. See, e.g.. Cooper v. Dvke. 814 F.2d 941,945 (4th Cir. 1987) (determining
that intense pain fi*om an untreated bullet wound is sufficiently serious); Loe v. Armistead. 582

F.2d 1291 (4th Cir. 1978) (concluding that the "excruciating pain" of an untreated broken arm is
sufficiently serious). Second, he must allege deliberate indifference to that serious medical need.

Under this second prong, an assertion of mere negligence or even malpractice is not enough to
state an Eighth Amendment violation; instead, plaintiff must allege deliberate indifference "by
either actual intent or reckless disregard." Estelle. 429 U.S. at 106; Daniels v. Williams. 474 U.S.
327, 328 (1986); Miltier v. Beom. 896 F.2d 848, 851 (4th Cir. 1990). To do so, the prisoner
must demonstrate that defendants' actions were "[s]o grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to fundamental fairness." Id (citations

omitted). Importantly, a prisoner's disagreementwith medical personnel over the course of his
treatment does not make out a cause of action. Wright v. Collins. 766 F.2d 841, 849 (4th Cir.

1985); Russell v. Sheffer. 528 F.2d 318,319 (4th Cir. 1975) (per curiam); Harris v. Murrav. 761
F. Supp. 409, 414 (E.D. Va. 1990).

At this juncture, plaintiffs claim of inadequate medical care fails to meet the

requirements for anactionable Eighth Amendment violation.'* As to the first component of an
''It is unclear whether plaintiff is a pretrial detainee or a convicted prisoner. Claims of pretrial
detainees are governed by the due process clause of the Fourteenth Amendment. Rilev v. Dorton.
115 F.3d 1159 (4th Cir.), cert, denied. 522U.S. 1020 (1997). It is well established, however, that

Eighth Amendment claim, a condition is sufficiently serious to merit constitutional protection if
it is "a condition of urgency, one that may produce death, degeneration, or extreme pain."
Hathawav v. Couehlin. 37 F.3d 63,66 (2d Cir. 1994). Plaintiff describes himself as suffering

from "mild" PTSD, Gulf War Syndrome, and an unspecified eye condition, and for purposes of
this analysis it is assumed that these conditions are sufficiently serious to warrant constitutional

protection. Nonetheless, the amended complaint is devoid of any allegations that any named
defendant or any other individual at ESRJ was deliberately indifferent to those conditions, either

individually or collectively. Cf. Mihier. 896 F.2d at 851. The alleged facts that plaintiff as an

incarcerated individual can no longer exercise at the same rate he once did or partake of sessions
in steam rooms and saunas is not shocking to the conscience or intolerable to fundamental

fairness. Plaintiffs conclusory allusion to not receiving his unspecified "meds" until June, 2015
is insufficient to state a constitutional claim; in addition to failing to name the medication,
plaintiff includes no description of the steps he took to try to obtain it, nor does he explain any

adverse effects he suffered as the result of not receiving it. None of the grievances plaintiff has
supplied relate to any medical issues. In short, taking all of plaintiffs allegations as true, the
amended complaint fails to state a claim for violation of plaintiffs rights under the Eighth
Amendment.

C. First Amendment

In his third discemable claim, plaintiff contends that his First Amendment right freely to

practice his religion has been violated at ESRJ. In the initial complaint, plaintiff alleged that he

thedueprocess rights ofa pretrial detainee areat least asgreat astheEighth Amendment protections
available to a convicted prisoner. Slade v. Hampton Roads Regional Jail. 407 F.3d 243, 250 (4th
Cir. 2005). Therefore, the Eighth Amendment standard is discussed here.
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and several other inmates at ESRJ had been prevented from receiving monthly Holy Communion
for a year. He stated that as an ordained minister he "partook of... Communion as a vital
component of [his] faith," and that he had made several requests for Communion which had been
denied. Compl. at 5C-5D. In the Order of June 23, it was stated that plaintiffs allegations,
although vague, would be sufficient to state a First Amendment claim if he could show that he

had properly exhausted his administrative remedies. Id. at 6. In response, plaintiff alleges in the
amended complaint that his First Amendment rights have been abridged because he is "denied
the observance of the Lord's Supper, spiritual counseling." Am. Compl. at 11. He adds that
although there is no staff chaplain available to inmates at ESRJ, a pastor volunteers to come in
and teach a Bible study lesson once a week. Id. He concludes, "See enclosed request form to
Cpt. Roger Kennedy." Id Attached to the amended complaint is an "Inmate All Purpose Request
Form," dated October 20,2014, on which plaintiff wrote:
I would like to administer the Church Ordinance of the Lord [sic]

Supper to my [illegible] Bible study group. Lt. Williams, I was
wondering if Union Baptist would donate us at least ten disposable
communion kits, wafers, grape juice so that I can officiate the Lord's
Supper to our group on Saturday. Thanks!!
On October 20,2014, Captain Kermedyresponded:
Per D.O.C. rules an irmiate cannot have direct control over another

irmiate and cannot perform services of any kind for another irunate.
We have volunteers who give their time to perform these services.
Services are defines [sic] as trading, [illegible] or performing jobs for
another inmate.

It thus is apparent that the claim plaintiff expresses in the initial andamended complaints
- that he has been denied the opportunity to partake of Communion - is not the samerequest he

made to Captain Kennedy. Instead, onthe Request Form, plaintiff made noclaim that hehad

been denied Communion; rather, he sought to be able to administer Communion to other

inmates. This discrepancy is fatal to plaintiffs claim.
As was explained in the Order of June 23, the Prison Litigation Reform Act mandates that

"[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or
any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted."

42 U.S.C. § 1997e(a);

Woodford v. Neo. 548 U.S. 81, 85 (2006) ("Exhaustion is no longer left to the discretion of the
district court, but is mandatory."). The PLRA requires "proper" exhaustion, which demands

"compliance with an agency's deadlines and other critical procedural rules." Woodford. 548

U.S. at 90-91,93. In the context of prisoner suits, proper exhaustion provides prisoners the
opportunity to correct their errors before being hauled into federal court, reduces the quantity of
prisoner suits by either granting relief at the administrative level or persuading prisoners not to

further pursue their claim in a federal court, and improves the quality of the prisoner suits that are

filed in federal court by creating an administrative record for the court to reference. Id The

benefits of proper exhaustion are only realized if the prison grievance system is given a "fair
opportunity to consider the grievance" which will not occur "unless the grievant complies with
the system's critical procedural rules." Id at 95; ^

also Moore v. Bennette. 517 F.3d 717, 725

(4th Cir. 2008).

Plaintiff as an inmate in a local jail is required to exhaust the claims raised in the instant

complaint in accordance with his institution's grievance process. Before bringing his claims in a
federal lawsuit, plaintiff must file a grievance as to each claim and must receive a response to

the grievance. If the response is unsatisfactory, he mustpursue the grievance through all

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available levels of appeal before presenting the claim in federal court. As has been recognized
previously in this district, 'the PLRA amendment made [it] clear that exhaustion is now
mandatory." Laneford v. Couch. 50 F.Supp.2d 544, 548 (E.D. Va. 1999) (Ellis, J.).

Here, plaintiff has failed to exhaust the claim that he was not allowed to receive
Communion. First, that is not the claim he expressed on the Request Form he addressed to

Captain Kennedy. Rather than complaining that he was unable to partake of Communion,
plaintiff asked Kennedy for permission to administer Communion to fellow inmates. Even if the
claim plaintiff made on the Request Form could be construed as being sufficiently similar to the

claim he attempts to bring here, he did not fully and properlyexhaust the claim because he did
not thereafter file a grievance based on the denial of his request. Am. Compl. at 4. Because

plaintiffs claim that he was denied the opportunity to participate in Communion at ESRJ has not
been exhausted, the Court lacks jurisdiction to consider its merits. Woodford. 548 U.S. at 85.
III. Conclusion

For the foregoing reasons, plaintiffs Amended Complaint will be dismissed pursuant to
§1915A for failure to state a claim on which relief can be granted. An appropriate Order and
judgment shall issue.
Entered this
is

riO day of

,2016.

Alexandria, Virginia
Leonie M. Brinkema

United States District Judge

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