Lewis v. Wade et al

Filing 40

MEMORANDUM OPINION and ORDER granting 33 Motion for Summary Judgment. ORDERED that judgment be and is entered in favor of defendants Lieutenant Jerry Robinson and Deputy Charles Amoah. Signed by District Judge Claude M. Hilton on 6/2/2017. (rban, )

?
IN THE UNITED STATES DISTRICT COURT FOR
EASTERN DISTRICT OF VIRGINIA

JUN - 2 :
CiiSK.'US. OfSTRCTOJUn-

Alexandria Division

ALEX»lDHR.MRSm

Joha Thomas Lewis,
Plaintiff,

l:16cv835{CMH/TCB)

V.

Michael Wade, ct al..
Defendants.

MEMORANDUM OPINION AND ORDER

John Thomas Lewis, a Virginia inmate proceeding £ro sc. has filed a civil rights action,
pursuant to 42 U.S.C. § 1983, alleging that his Eighth Amendment rights were violated by

ofllcers at the Henrico County .fail West Facility. On February 1, 2017, defendants Deputy
Charles Amoah and Lieutenant Jeny Robinson filed a Motion for Summary Judgment, as well as

a memorandum of law and supporting exhibits, wherein plaintiff was given the Notice required
by Local Rule 7(K) and the opportunity to file responsive materials pursuant to Roseboro v.

Garrison. 528 F.2d 309 f4th Cir. 1975).' Dki. Nos. 33-34. On May 3, 2017, plaintiff filed a
sworn pleading styled "Plaintiffs Objection to Defendant's [sic] Motion for Summary
Judgement [sic]" in which he disputes several facts as stated in the Motion for Summary
Judgment. Dkt. No. 38. For the following reasons, defendants" Motion for Summary Judgment
will be granted.

' The other named defendant's November 21, 2016, motion to dismiss (Dkt. No. 20) is currently
pending before this Court.

I. Background

The record establishes the following facts.^ Plaintiff was injured on or about July 9,
2014, after falling from a top bunk at the Henrico County Jail West Facility. Compl. at 14; Dkt.

No. 34 at 1-2. At that time, plaintiff was assigned to dayroom 221, cell 10, where he had been
assigned since June 23,2014, along with two other inmates. Dkt. No. 34 at 3 ^ 6. Each cell

housing general population inmates has a top and bottom bunk, and when necessary to

accommodate a third inmate, a cot. Id at 2 ^ 5. "There is no ladder to the top bunk or rails on
the bunk

" Gregory Decl. Dkt. No. 34 Ex. A H7.

Plaintiff had been assigned a cot due to "a medical detail for a bottom bunk." Compl. at
9II 10. Only the jail's medical staff may issue "no top bunk" restrictions, Dkt. No. 34 at 4 ^ 13,

and plaintiff contends that he "was given a bottom bunk assignment [from Dr. Dana Vango at
HenricoJail-East] for 90 days from the ending [sic] of May until August 2014." Dkt. No. 38 at
3, 7. Generally, inmates who are provided "no top bunk" restrictions receive a hard copy of a
"Henrico County Jail Restriction Instructions" form. ^

Gregory Decl. Dkt. No. 34 Ex. A

12.

On July 8,2014, to alleviate overcrowding in cell 10, which housed three inmates,
plaintiff asked defendant Robinson if he could move to cell 12, which housed one inmate.

Compl. at 9 ^12. "Lt. Robinson verbally okayed the move and said he would email records the

next day to reflect the move, but advised Plaintiff to wait until lockdown at night before
moving." Id at 9-10^ 13. "Plaintiffwaited approximately 20 minutes before lock[] down to

^These facts are taken from the Complaint, (Dkt. No. 1); defendants' Motion for Summary
Judgment and supporting documents, (Dkt. Nos. 33-34); and "PlaintifTs Objection to
Defendant's [sic] Motion for Summary Judgement [sic]," (Dkt. No. 38). Facts disputed by
plaintiff are taken as true to the extent they are not contradicted by the record. Scott v. Harris.
550 U.S. 372,380 (2007) ("When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").

move his belongings to cell 12," but after plaintiff completed the move, and while defendant

Amoah was performing the "count," defendant Amoah asked plaintiff why he was not in his
assigned cell, cell 10. Id. at 10

14-16. Plaintiff advised defendant Amoah that defendant

Robinson had given him permission to move cells, but defendant Amoah "instructed Plaintiff to

gather his belongings and move back to cell 10 right thenand there." Id.1ft 17-18. As plaintiff
returned to cell 10, he advised defendant Robinson that defendant Amoah would not allow him

to remain in cell 12, to which defendant Robinson replied, "it was [defendant Amoah's] decision,

he ... was deferring to it, and Plaintiff would have to write classification to get the move
officially done." Id at 10-11 ^ 19-20.
Only personnel in the Henrico County Sheriffs Office's Classification section

("Classifications"), who are privy to inmate information that is used in the assignment process
and unavailable to other staff, have the authority to assign inmates to cells; other personnel may
not change cell assignments. ^

Gregory Decl. Dkt. No. 34 Ex. A

8,9. At the time of

plaintiffs injury, neither defendant Amoah nordefendant Robinson was assigned to
Classifications. Amoah Decl. Dkt. No. 34 Ex. B

2,4; Robinson Decl. Dkt. No. 34 Ex. C

2-

5, 9. According to plaintiff, jail personnel may change assignments "if it is deemed appropriate
an [sic] necessary or for emergency purposes," and the Classifications department is notified
thereafter. Dkt. No. 38 at 5. ^ 7. In any case, if an inmate refuses to abide by his cell
assignment, a non-Classifications deputy may place the inmate in holding until Classifications
can reassess and reassign the inmate. ^

Amoah Decl. Dkt. No. 34 Ex. B H5.

When plaintiff returned to cell 10 after his attempted move, he discovered that the inmate

who previously occupied the top bunk "had moved his belongings to the cot." Compl. at 11 ^
21. Plaintiff advised defendant Amoah that he had "bottom bunk status and he needed his cot

back as he could not climb to the top bunk due to his medical condition," yet Defendant Amoah
refused to instruct the inmate on the cot to return to the top bunk. Id at 11-12 ^^122,24.
Plaintiff did not obviously satisfy any condition on the Henrico Sheriffs Office's Assessment

Protocol: Bottom Bunk Requests used to determine "no top bunk" assignments. See Dkt. No. 34
Ex. D (listing age (greater than 60); musculoskeletal immobility; surgery or major trauma to

neck, back, chest, abdomen or extremities within six weeks; documented history of seizure

disorder; severe cardiac or pulmonary disease; active detox protocol; and pregnancy). When
plaintiff offered to show the defendants his

bottombunk pass, in [sic] which stated to them that he had an [sic] could produce,
but needed time to retrieve it from his belongings, [sic] They both refused to

listen or give him time to produce the documents, l^owing full well that the
Plaintiffhadjust moved his belongings from the cot that he was requesting to
move back too [sic].
Dkt. No. 38 at 10-11 124.

Plaintiffthen requested to be taken "to the hole" because he "could not get on the top

bunk," he would not "tell another inmate to move," and he would not risk "any further injury to

his elbow and his back trying to geton a top bunk that did not have any ladder or railings."
Compl. at 12Tni 25, 28. Whendefendant Amoah advised plaintiffthat he would be given "a
charge for disobeying a direct order" if he had to be taken to the "hole," plaintiff"turned to

[defendant] Robinson and asked him if he was going to allow [defendant] Amoah to force
Plaintiff to the top bunk or be subject to a charge." Id. at 12-13

29-30. When defendant

Robinson told plaintiffto "do as you're told and step in the cell," plaintiff agreed to remain in
cell 10. Id. at 13

30-31. According to plaintiff, defendants Amoah and Robinson "totally

disregarded the fact that the inmate [in cell 10] who was assigned to the top bunk had broken his
assignment to occupy the Plaintiffs assigned cot." Dkt. No. 38 at 14.

When plaintiff attempted to climb onto the top bunk later that evening, "he slipped and
fell to the ground, landing on his injured right arm on which he [was wearing a] brace, causing it

to be re-injured." Compl. at 14^ 36. The two other inmates in cell 10 eventually helped plaintiff
onto the top bunk, where he fell asleep. Id at 14. ^ 37. "[J]ust before the breakfast wakeup call,
Plaintiff fell off the top bunk while in his sleep, hitting his head on the cot, and landing on his

injured arm." Id Plaintiffcould not move, and the inmates in his cell called for the deputy, who
alerted the medical officials. Id at 15

39-40. Plaintiff was taken to the hospital by

ambulance. Idt41.
As a resuh of his fall, plaintiff suffers from anxiety and "continues to suffer nerve

damage painto his neck and back, migrane [sic] headaches, and aggravated nerve pain in his
right arm." Id ^ 42. On July 9,2014, plaintiffreceived a "no top bunk" restriction. Dkt. No.

34 Ex. F. Plaintiffstates that he was"provided with [the] bottom bunk detail indefinitely,"
because his previous accommodation, which was issued "due to problems with his back and

nerve damage to hisright arm," only covered the end of May through August of 2014. Compl. at
8-9

8-9. Plaintiff asserts that, prior to his fall, "Dr. Dana [sic] Vango issued him a 90 day

bottom bunk pass from 5/29/14-8/29/14" due to his back and neck pain and "nerve damage to his
right arm for which he also received a brace." Id at 9 ^ 9; Dkt. No. 38 at 7 ^13.

On November 15, 2013, plaintiffwas transferred from Pamunkey Regional Jail to
Henrico County Jail with no current health problems, and plaintiffs medical records reveal that

during his intake evaluation on November 21, 2013, he reported "NO current health problems or
medications." Dkt. No. 34 Ex. E (emphasis In original). On December 6, 2013, plaintiff
requested "to see the doctor because of chest pain, back and knee pain," but he was a "no show
[during] sick call." Id He received mental health treatment on December 31,2013, and on

January 4,2014, he was treated due to complaints of "dry, cracking skin between several toes on
his R. foot" and "recurrent discomfort from a L. knee injury in 2012." Id On March 17,2014,

plaintiffrequested to see a doctor concerning "a burning sensation in [his] innerelbow and calf
muscle (back left)

"Id. Dr. Vango treated plaintiffthat day, and her clinical notes indicate

that plaintiffhad complained of his right elbow"constantly burning" for "the past few months"

and ofburning in his left calf as well.^ Id Dr. Vango noted "no redness ordeformities" and
normal range of motion, and she provided plaintiffwith a "motrin starterpack" and "muscle
rub." Id

On April 2, 2014, plaintiff completed an "inmate sick call request" stating that he "put in

to see the doctor a month ago and [had not] been called yet for problems with elbow an [sic]

calve [sic]. Now I have skin irritation and I would like to see the nurse." Id Plaintiffrequested
another medical appointment on April 10, 2014, for a "rash and infection," and he was seen that
day. Id

Plaintiff requested treatment again on April 15,2014, "for medication for [his] skin," and

he was subsequently seen on April 17,2014, "for acne or something to clear up spots on his face

from previous acne." Id On April 29, 2014, plaintiffsoughttreatment following continued
complaints of "left elbow discomfort," which he described as "burning pain;" he ftirther stated

that the Motrin had been "ineffective." Id On April 30,2014, he requested that his blood
pressure "be tested for diabetes and P.D.F." ]d

During her treatment of plaintiff on May 6, 2014, Dr. Vango noted "no obvious
deformity to bil[ateral] elbows," and a full range of motion in his neck, elbows, and wrists. Id

^Dr. Vango entered her notes one day later, on March 18,2014.
6

Dr. Vango ordered further testing, and nursing staff drew plaintiffs blood on May 7, 2014. Id.

The corresponding medical notes contain the following observations from the treating nurse:
[plaintiff] noticed burning in his bil[ateral] elbows about 3 moths [sic] ago.
Reports constant burning to his L elbow. States the R elbow has a burning
sensation about once a day for 15 mins. Denies any injuries to his arm or elbow.
Denies anything like this before. Denies any weakness in his arms or hands. He
works out with push ups, pull ups, dips.
Id Plaintiff was given a "wrist immobilizer" for his left wrist. Id

Plaintiffcompleted another "inmate sick call request" on May 21,2014, seeking
treatment for "painin [his] back, foot and unresolved issues with [his] elbow." Id On May 22,
2014, plaintiff

was seen in sick call... for multiple complaints. States that he has a pinched
nerve in his elbow and has a carpal splint because keeping his wrist straight

helps.'"*^ States that the elbow still bothers him some and is requesting a refill on
Naprosyn. Also do chronic back pain since 2002 from a disc injury. Requesting
an egg crate mattress, advised that it would likely be denied. IM also c/o pain in
his bilateral great toes, R>L. States it is sharp pains in his joints and it started and
is worse when he wears the work boots or is on his feet too long. No redness,
swelling or abnormality in gait.

Id. Later that day, plaintiffwas seen at Spotsylvania Regional Medical Center and diagnosed
with acute bronchitis/substance abuse. Id

On June 5,2014, plaintiff completed an "inmate sick call request" seeking treatment for

"stomach sickness, rash,... soreness in gums, [and] sweat[ing] at times." Id On June 9,2014,
he presented to medical staff with several complaints:
States that he has a pinched nerve in his elbow and has a carpal splint because

keeping his wrist straight helps.'^' He was taking Prednisone. States it helped
'' Plaintiffs medical records do not specify which elbow plaintiff was referring to, but he had
previously been given a wrist immobilizer for his left wrist. In addition, when plaintiff was
treated at the hospital following his fall on July 9, 2014, he reported nerve damage in his left
elbow.

^Again, plaintiffs medical records do not specify which elbow plaintiff was referring to, but he
had previously been given a wrist immobilizer for his left wrist. In addition, when plaintiff was

with his arm but he doesn't think its [sic] completely healed and would like to be
seen. He also states for the past 3-4 days he has started breaking out in a sweat for
no reason and has not been feeling well lately.
Id. Plaintiff received mental health treatment on June 10, 2014.

On June 17, plaintiff reported to Dr. Vango that "the pain has decreased in his L elbow,"

and there was "great improvement in his L elbow with the prednisone." Id. Plaintiff made an
"inmate sick call request" on July 1, 2014, complaining of "stomach irritation" a "skin infection"

and "pain in back and elbow." Id During sick call on July 3,2014, plaintiffcomplained of
"back, stomach, and elbow pain;" he was given Tylenol, "per back pain protocol," and informed

that he had "already been seen by provider concerningelbow." id His treating nurse instructed
him to "put in another sick call" if the Tylenol was ineffective. Id
II. Standard of Review

Summary judgment is appropriate only when there is "no genuine dispute as to any
material fact and the movant is entitled to judgmentas a matter of law." Fed. R. Civ. P. 56(a).

"[T]he substantive law will identify which facts are material[,]" anda "genuine" dispute of
material fact will be found only when "the evidence is such that a reasonable jury could return a
verdict for the non-moving party." Anderson v. Libertv Lobbv. Inc.. 477 U.S. 242, 248 (1986).
The moving party bears the burden of proof for all relevant issues and must demonstrate that

judgment on the pleadings is appropriate. See Celotex Corp. v. Catrett. 477 U.S. 317, 322-23
(1986).

Once a moving party has met its burden, the non-moving party must produce specific
facts to generate a disputed issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp..
475 U.S. 574, 587 (1986): see Bell v. Koloneo. No. 1:03CV501 (GBL), 2004 WL 3247156, at *7

treated at the hospital following his fall on July 9, 2014, he reported nerve damage in his left
elbow.
8

(E.D. Va. Oct. 25, 2004) (quoting Mitchell v. Data Gen. Corp.. 12 F.3d 1310, 1316 (4th Cir.

1993)) ("In a 'summary judgment inquiry[, the Court] scrutinizes the plaintiffs case to determine
whether the plaintiff has proffered sufficient proof, in the form of admissible evidence, that could

carry the burden of proof of his claim at trial.'"), afTd, 120 F. App'x 985 (4th Cir. 2005). ''Only
disputes over facts which mightaffect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson. 477 U.S. at 248.

Unsubstantiated, conclusory claims without evidentiary support are insufficient to defeat a
summary judgment motion. Braithwaite v. Hinkle. 752 F. Supp. 2d 692, 694 (E.D. Va. 2010),
afTd, 412 F. App'x 583 (4th Cir. 2011). In other words, "[i]f the evidence is merely colorable,
or is not significantly probative, summaryjudgment may be granted." Anderson. 477 U.S. at
249-50 (internal citations omitted). The court will view the evidence and draw all reasonable

inferencesin the light most favorable to the non-moving party. Porter v. U.S. Alumoweld Co..
125 F.3d 243,245 (4th Cir. 1997).
III. Analysis

To prevail on his Eighth Amendment claim, plaintiff must establish sufficient facts to
show that a jail official was deliberately indifferent to a serious medical need. See Estelle v.

Gamble. 429 U.S. 97, 104-05 (1976); Staples v. Va. Dep't of Corr.. 904 F. Supp. 487,492 (E.D.
Va. 1995). Such a showing requires two distinctelements; (1) a sufficiently serious medical
need, s^ e.g.. Hall v. Holsmith. 340 Fed. App'x 944, 947 & n.3 (4th Cir. 2009) (flu-like
symptoms not sufficiently serious); Cooper v. Dvke. 814 F.2d 941, 944-45 (4th Cir. 1987)
(intense pain from an untreated bullet wound sufficiently serious); Loe v. Armistead. 582 F.2d

1291, 1296 (4th Cir. 1978) ("excruciating" pain ft-om untreated broken arm sufficiently serious),
and (2) a defendant's deliberate indifference to that need. Farmer v. Brennan. 511 U.S. 825, 837

(1994). A defendant acts with deliberate indifference only when he "knows of and disregards an
excessive risk to inmate health or safety; [the defendant] must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference." Id

To sustain his claun past the summary judgment stage, plaintiff must, at minimum, create

an issue of material fact concerning whether his stated medical need is objectively serious, i.e.,
"one that has been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor's attention." Jackson v.

Lightsev. 775 F.3d 170,178 (4th Cir. 2014) (quoting Iko v. Shreve. 535 F.Sd 225, 241 (4th Cir.

2008)). Generally, "[a] medical need serious enough to give rise to an Eighth Amendmentclaim

involves a condition which places an inmate at substantial risk of serious harm, usually loss of
life or permanent disability, or a condition for which lack of treatment causes continuous severe

pain." Green v. Rubenstein. 644 F. Supp. 2d 723, 740 (S.D. W. Va. 2009): see also McClarv v.

Fowlkes. No. 1:07CV1080 LO/TCB, 2008 WL 3992637, at *4 (E.D. Va. Aug. 27, 2008)
("Plaintiff has failed to present affidavits or other evidentiary material sufficient to meet his
burden on summary judgment that he suffered from a 'serious' medical need, such as a condition

for which lack of treatment perpetuates severe pain."), afTd. 328 F. App'x 275 (4th Cir. 2009).

A review of plaintiffs medical records indicates that his complaints of back pain were
intermittent and interspersed with complaints of other ailments, ^

Dkt. No. 34 Ex. E, and,

therefore, insufficient to sustainan EighthAmendment claim.

Perkins v. Cal. Dept. of Corr.

& Rehab.. 2010 WL 3853276 at *6 (E.D, Cal. Sept. 30, 2010) (stating that persistent, substantial

pain for ten months qualifies as a "serious" medical condition, but mild, intermittent pain does
not); Benitezv. Pecenco. No. 92 CIV. 7670 (DC), 1995 WL 444352, at *3 (S.D.N.Y. July 27,

10

1995) (concluding that complaints of back pain, which were only sporadically made and were

interspersed with complaints of a sore throat and sore finger, all of which were treated as

requested, were not a "serious" medical condition). Plaintiffs complaints of elbow pain, though
more consistently voiced, are also insufficient to support a constitutional claim. There is no
clinical support for plaintifFs claim of "a pinched nerve in his elbow," or any indication that the
burning sensation experienced by plaintiff caused him severe pain or otherwise interfered with

his daily activities. Dkt. No. 34 Ex. E. In fact, following several complaintsof "burning in his
bil[ateral] elbows," plaintiffdenied "any weakness in his arms or hands" and acknowledged that
he "works out with push ups, pull ups, dips." See jd The clinical findings that plaintiff had full

range of motion, normal strength, and normal function, and the absence of complaints of
unbearable or debilitating pain, belie plaintiffs contentions that his medical needs were
sufficiently serious to support an Eighth Amendment claim.

Williams v. Tomlin. No. 98-

1234, 1999 WL 644383, at *1 (6th Cir. Aug. 13, 1999) (finding that prisoner's complaints of a

burningsensation and bleeding after applying medicated skin cream to his face was not a serious
medical need where nurse noted that the prisoner had no "blistering redness," but merely a few
patches of dry skin); Degree v. State Emos.. No. C/A 3:102596CMCJRM, 2010 WL 5257230, at

*3 (D.S.C. Nov. 8,2010). report and recommendation adopted. No. C/A 3:102596CMCJRM,

2010 WL 5257229 (D.S.C. Dec. 17,2010) (concluding that itching and burning of feet, though
uncomfortable, did not constitute objectively serious medical need, absent allegations of blisters
and unbearable pain and evidence that the condition lasted for a lengthy period of time). Thus,
even assuming, without deciding, that defendants acted with deliberate indifference, the

11

undisputed record establishes that plaintiff was not suffering from a sufficiently serious medical

condition, and, therefore, defendants' Motion for Summary Judgment will be granted.^
Accordingly, defendants' Motion for Summary Judgment (Dkt. No. 33) is GRANTED,
and it is hereby

ORDERED that judgment be and is entered in favor of defendants Lieutenant Jerry
Robinson and Deputy Charles Amoah.

The Clerk is directed to send a copy of this Memorandum Opinion and Order to plaintiff
and to counsel of record for defendants.

Entered this ^CL^^^^day of

2017.

United States District Judge

Alexandria, Virginia

^Both defendants argue in the alternative that they should have qualified immunity from liability
to plaintiff for the harm plaintiff asserts. Because defendants have established their entitlement
to judgment as a matter of law on plaintiffs Eighth Amendment claim, it is unnecessary to
address their arguments on the question of qualified immunity.
12