Arambula v. Clark

Filing 34

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 2/23/12. Copy sent: Yes(tdai, )

IN THE UNITED

FOR THE

STATES DISTRICT

COURT

EASTERN DISTRICT OF VIRGINIA

Richmond Division

TONY ARAMBULA,

Plaintiff,
v.

M.

Civil Action No.

3:10CV121

CLARKE,
Defendant.
MEMORANDUM OPINION

Plaintiff
proceeding
pursuant

Tony

pro

to

incarcerated

se

42

at

Arambula,

and

U.S.C.

the

in
§

a

forma
1983.

Deep

former

pauperis,
Arambula

Meadow

Virginia
brings

this

contends

Correctional

prisoner
action

that,

while

Center

("DMCC"),

Dr. Clarke1 denied him adequate medical care in violation of the
Eighth Amendment.2

Dr. Clarke has moved for summary judgment on

the

inter

grounds

that,

administrative remedies.

alia,

Arambula

failed

Arambula has responded.

to

exhaust

his

The matter is

ripe for disposition.

1 The Court notes that Dr. Clarke's last name is spelled
with

an

e.

The

Clerk

shall

correct spelling for Dr.

correct

the

docket

to

reflect

the

Clarke's name.

2"Excessive bail shall not be required, nor excessive fines
imposed,
Const,

nor

amend.

cruel
VIII.

and

unusual

punishments

inflicted."

U.S.

I.

In

June

Clarke

2009,

previously

infected.
for

of

SUMMARY OF RELEVANT ALLEGATIONS

The

a

had

lump

on

Arambula's

diagnosed

infected

cyst

as

a

chest,

benign

caused Arambula

which

cyst,

extreme

Dr.

became

discomfort

the next month or so.

On

August

4,

2009,

Arambula

Medical College of Virginia
cyst

erupted.

At

MCV,

was

to

the

While en route to MCV,

("MCV").

scheduled

the

a doctor examined the

it to be "an abscess." (Compl. 4.)3

(Id.)

with

a

"wound

[which]

was

treat

daily."

lump and diagnosed

The procedure left

stitched

or

order to the

nurses

wound with a "'wet

at

DMCC

required "Dr. Clark[e]

MCV

within

occurred.

there

was

told

Arambula

dry'

DMCC medical

treatment,

that

DMCC

(Id.

at

After

returning

evidence

5.)
to

Nevertheless,

protocol

DMCC

that

and

the

no

receiving

wound

Arambula requested to see Dr.

Clarke.

2009,

Clarke

immediately

examined Arambula

and

follow-up
treatment,

was

Therefore,
Dr.

once

to follow-up with inmates returning from

days."

little

to

stapled."

(Id.)

Two

the

(Id.)

not

The doctor provided a medical

staff to

go

Arambula underwent a "fairly

simple" procedure to treat the abscess.

Arambula

to

closing.

On August

24,

determined

3 Because the Complaint does not contain a consistent page
numbering system,
the Court will
utilize the page
assigned to the Complaint by the Court's CM/ECF system.

numbers

that

the

wound was

not

healing

properly

because

the

nurses

at

DMCC were "'not packing it properly.'" (Id. at 4.)
During September and November of
Arambula

several

times.

"[E]ach

2009,

time"

Dr.
she

Clarke treated
expressed

frustration that the wound was not being properly packed.
"After

Dr.

Clark[e]

[Arambula]

occasions

sep[a]rate

told

that

they

properly,

nothing changed."

of

Dr.

2009,

(Id.

file

and

the

site,

again

staff."
did

(Id.
not

at
heal

In

in November

4-5.)

responsibility

late

then

expressed

last order to send [Arambula]

wound

Finally,

long with her

treated

her

at 5.)

last

Clark[e]

on

[the

the

(Id.)

nurses

packing

over

holidays."

(Id.)

weren't

"took

upcoming

medical

several

but that didn't

[Arambula]

Clarke

and

her

her

treating

schedule and the

November

went

of

wound]

of

through

2009,

"Dr.

[Arambula's]

disappointment

that

her

back to MCV was never scheduled by

In

properly,

January

of

Arambula

2010,

because

underwent

the

further

corrective surgery to address the wound.4

4 The Court notes that in opposition to the Motion for
Summary
Judgment
Arambula
also
complains
about
inadequate
medical care in the Spring of 2010 with respect to cysts in his
groin area.
(PL's Opp'n Mot.
Summ.
J.
5-6.)
Arambula
specifies,
"This
testimony
is
not
additional
grounds
of
violations but merely testimony for this Court to determine its
final verdict."
(Id. at 5 (capitalization corrected).)
Given
these circumstances and Arambula's failure to seek leave, as he
must, to amend his complaint, the Court does not deem these
allegations to raise any new claim for relief.
See Begay v.

Stansberry, No. 3:09cv578, 2010 WL 2077016, at *3 (E.D. Va. May
24, 2010) (citing cases for the proposition that a party cannot

II.

STANDARD

FOR SUMMARY

JUDGMENT

Summary judgment must be rendered "if the movant shows that
there

is

movant
Civ.

no

is

P.

genuine

entitled

56(a).

dispute

to

It

is

the

judgment

to

motion,

and

See

the

Celotex

"[W]here

trial

Corp.

the

on

a

properly

v.

be

made

Id. at 324

pleadings

answers

of

a

trial.'"

Id.

(1986)).

showing

a duty to

Fed.

R.

record

which

issue

of

material

fact.

U.S.

317,

bear

the

basis

seeking

the

477

the

party

of

burden of

judgment

solely

on

interrogatories,

the

(1986).

proof

motion

the

and

for

323

summary

at

may

pleadings,

admissions

on

When the

the nonmoving party must go beyond

citing

affidavits

and admissions

that

there

is

(quoting former Fed. R.

Additionally,
court

the

a

to interrogatories,

facts

district

by

the

of

genuine

issue,

to

and

law."

(internal quotation marks omitted).

and,

'specific

of

reliance

in

answers

a matter

fact

parts

Catrett,

dispositive

material

court

the

motion is properly supported,
the

the

nonmoving party will

depositions,

file."

inform

absence

as

any

responsibility of

identify

demonstrate

to

judgment

summary

to

as

"'Rule
sift

56

on

a

Civ.

does

through the

or

"'depositions,

file,'

designate

genuine

issue

P.

and 56(e)

not

56(c)

impose

record in

upon

for

the

search of

evidence to support a party's opposition to summary judgment.'"
informally

raise

summary judgment).

new

claims

in

its

response

to

a

motion

for

Forsyth

v.

Barr,

Skotak v.
Cir.

19

1992));

consider

see

only

1527,

1537

Resins,

Tenneco

F.3d

Inc.,

953

Fed.

cited

R.

Civ.

F.2d

P.

materials,

(5th

Cir.
909,

56(c)(3)

but

it

1994)
915

&

7

(5th

court

("The

may

(quoting
n.

need

consider

other

materials in the record.").

Here,

Dr.

Clarke

dismissed

because

remedies

as

contends

Arambula

required

by

that

failed

42

to

Arambula's
exhaust

U.S.C.

§

claim

his

must

be

administrative

1997e(a).

Because

the

exhaustion of administrative remedies is an affirmative defense,
Dr.

Clarke

shoulders

exhaustion.

support

of

Jones

this

v.

Dr.

Bock,

Seay,

Supp.

Mot.

Summ.

Clarke

has

tendered

grievance system

(Id.

submitting

his

Summary Judgment.
principles

and

549

own

plead

U.S.

Dr.

Ex.

and

199,

Clarke

4

("Seay

copy

a

of

("VDOC")

Ex. B

of Arambula's grievances.

to

prove

216

has

lack

(2007).

submitted

the Institutional Ombudsman at

J.

Department of Corrections

by

burden

contention,

declaration of Marci
(Mem.

the

Decl.")

the

sworn

Ex. A.)

brief

the

the

DMCC.

pertinent

Virginia

regulations pertaining to the

(Docket No. 29.)
submissions,

In

Additionally,

("Grievance Procedure"))
(Id.

of

and copies

Arambula has responded

opposing

the

Motion

for

In light of the foregoing

facts

set

forth

below

established for purposes of the Motion for Summary Judgment.

are

III.

A.

VDOC's

The

VDOC

SUMMARY OF PERTINENT

Grievance Procedure

maintains

inmate complaints.

before

resolve

the

available

the

or

she

copies)

grievance,

has

made

informally

institution to

for

a

the

good

through

resolving

inmate

faith

must

effort

to

the

procedures

secure institutional

services or

(Grievance

§

866.l.V.A.1.)

inmate must

out a standard form.
"The

procedure

Procedure

§

866.1.V.A.)

this requires an inmate to file an informal complaint

(Id.

fails,

he

formal

complaints.

Generally,

grievance

a

grievance

at the

resolve

form.

that

a

The pertinent VDOC regulations require that,

submitting

demonstrate

FACTS

original

If

the

informal

resolution

effort

initiate a regular grievance by filling

(Id^ § 866.1.VI.A.2.)
Regular

Grievance

(no photocopies

or

carbon

should be submitted by the offender through the facility

mail system to the Warden/Superintendent's Office for processing

by

the

Institutional

Ombudsman/Grievance

§ 866.1.VI.A.2.b.(spacing

corrected).)

The

Coordinator."
offender must

(Id.
attach

to the regular grievance a copy of the informal complaint.

(Id.

§ 866.1.VI.A.2.a.)

have

Additionally,

"[i]f

15

calendar

expired from the date the Informal Complaint was
the

offender

receiving

a

response,

the

days

logged without

offender

may

submit

a

Grievance on the issue and attach the Informal Complaint receipt
as

documentation

of

the

attempt

to

resolve

the

issue

informally."

filed

(Id.

within

§

866.1.V.A.2.)

thirty

occurrence,

or

except

instances

in

the

days

from

discovery

A

the

of

beyond

formal

date

the

the

grievance

of

incident

be

incident

the

must

or

or

offender's

occurrence,

control.

(Id.

§ 866.1.VI.A.1.)

Up to three levels of review exist for a regular grievance.
(Id.

§

866.1.VI.C.)

The

warden

or

superintendent

of

the

facility in which the offender is confined conducts the Level I
review.

(Id.

§

866.1.V.C.1.)

If

the

offender

is

dissatisfied

with the determination at Level I, he may appeal the decision to

Level II.

The VDOC Regional Director,

Director,

or

Management

the

Services

§ 866.1.VI.C.2.)

whether

VDOC

he

or

conducts

The

she

of

a

response

On

informal

of

for

Level

review.

response

an

offender

to

Operations

the

II

pursue

An

appeal is available."
B.

Level

may

§ 866.1.VI.C.2.f.)

receipt

Chief

the VDOC Health Services

appeal

informs

appeal
has

to

II

to

Offender

the

(Id.

offender

the

III.

(Id.

calendar

"5

Level

days

upon

next

level,

if

such

(Id_;_ § 866.1. VI. D. 6. )

Arambula's Grievances Filed At DMCC

November

13,

complaints,

2009

and

December

complaining

he

7,

2009,

had

inadequate medical treatment for his wound.

Arambula

been

filed

receiving

(Seay Decl.

Ex. A

1,

3.)5

regular

Thereafter,
grievance

on December

asserting

inadequate treatment.

that

9,

2009,

medical

(Id. at 2. )

Arambula

staff

were

filed

providing

On December 29, 2009, Warden

Baskerville responded to Arambula's regular grievance.
6.)

Warden Baskerville concluded,

Staff

correctly

Warden

applied

Baskerville

the

the

Health Services

physician's

December

grievance

9,

generally

2009,

complaining

rules

require

emergency

"[i]f

the

serious
Procedure

subjects

personal

injury

not meet this criteria;

he

. . . ."
was

(Id.)

dissatisfied

calendar days.

(Seay Decl.
also

about

the

Ex. A 5.)

grievances

the
or

§ 8 66.1.VII.E.3.)

if

five

Arambula

(Seay Decl.

issue

orders

that

Director within

medical treatment.
that

at

he could pursue a further appeal to

Arambula did not pursue an appeal.
On

(Id.

"Your grievance is unfounded.

informed Arambula

with this Level I response,

a

therefore,

filed

lack

an

of

emergency

appropriate

The pertinent prison

to

irreparable
Arambula's

SI 6.)

become

offender

(Id. )

available

immediate
harm."

only

risk

of

(Grievance

emergency grievance did

the pertinent prison official

returned the emergency grievance to Arambula.

(Id.;

Seay Decl.

SI 5.)

5 Because

Exhibit

A

does

not

contain

a

uniform

numbering system,
the Court will utilize the page
assigned to this exhibit by the Court's CM/ECF system.

page

numbers

IV.

The
brought

with

statute

respect

to

provides:

prison

"No

action

conditions

under

prison,

administrative

or

other

remedies

U.S.C. § 1997e(a).6

correctional

as

are

facility

available

are

possible

responses

demands."

Generally,

cover

Booth

v.

in order to

inmate must

U.S.C.

file

until

548 U.S.

instructed

exhaustion."
"[p]roper

Id.

such

exhausted."

42

a

the

Churner,

specific
532

satisfy the

grievance

whether or not the

relief

U.S.

the

731,

81,

90

that

at

exhaustion

raising the claim and pursue

the

section

The

demands

(2001).

the

(2006).

93.

738

prisoner

exhaustion requirement,

grievance through all available levels of appeal.

has

[42

be

This language "naturally requires a prisoner

to exhaust the grievance procedures offered,

v. Ngo,

shall

or any other Federal law, by a prisoner confined in any

§ 1983)

jail,

pertinent

EXHAUSTION ANALYSIS

Additionally,
1997e(a)

Supreme

deadlines and other critical procedural

the Supreme Court
"requires

Court

compliance

See Woodford

explained

with

rules,"

proper

id.

an
at

that

agency's
90,

"^so

6 Arambula's release from prison after he filed this action
does not excuse Arambula from his obligation to exhaust his
administrative remedies under 42 U.S.C. § 1997e(a).
Hardee v.
Turner,
No.
5:09-CR-3199-FL,
2011
WL
2173624,
at
*1
n.l
(E.D.N.C. June 2, 2011) (citing Cox v. Mayer, 332 F.3d 422,
25 (6th Cir. 2003); Ahmed v. Dragovich, 297 F.3d 201, 210
Cir.
2002);
Dixon v.
Page,
291 F.3d 485,
488-89
(7th
2002)).

424(3rd

Cir.

that

the

agency

(quoting

Pozo

addresses

v.

the

McCaughtry,

issues
286

on

F.3d

the

merits.'"

1022,

1024

Id.

(7th

Cir.

2002)).

A.

Arambula's Emergency Grievance

The

applicable

proper

exhaustion."

prison

Jones v.

Arambula's

emergency

emergency

grievance

Specifically,
that

injury

faced

or

did

administrative

remedies.

(4th Cir.

2008);

474125,

at *2-3

(W.D. Va.

B.

his

See

Feb.

qualify

risk

(2007).

a

proper

prison

rules.

not

reflect

serious

(Grievance

obligation
v.

Cain,

20,

as

did

of

218

of

personal

Procedure

submission of the emergency

Moore

Wells v.

199,

grievance

harm."

satisfy

boundaries

pertinent

Arambula's

729-30

not

"immediate

Thus,

not

did

emergency

an

the

549 U.S.

the

irreparable

§ 866.1.VII.E.3.)

grievance

under

"define

Bock,

grievance

Arambula's

Arambula

rules

to

exhaust

Bennette,

No.

517

F.3d

7:07cv00418,

his
717,

2008 WL

2008).

Arambula's Regular Grievance

Because Arambula failed to pursue an appeal with respect to
the

denial

of

administrative

his

regular

grievance,

remedies.

Arambula

suggests

regular

grievance

that

See

his

should

for

surgery.

to

excused

received a response to the grievance,
scheduled

(PL's

10

failed to

Woodford,

failure

be

he

548

pursue
because,

exhaust

U.S.

an

at

his
90.

appeal

by

of

his

the

time

he

he had learned that he was
Opp'n

Mot.

Summ.

J.

4.)

Arambula

of

his

fails to

explain why such a circumstance relieves him

responsibility to

pursue

an appeal

with

respect

alleged denial of adequate medical care by Dr. Clarke.

to

the

The crux

of Arambula's

lawsuit is the denial of adequate medical care by

Dr.

The

Clarke.

additional

fact

medical

that

care

Arambula

does

not

learned

excuse

he

him

was

from

to

receive

pursuing

all

available administrative remedies concerning his prior assertion
that he had received inadequate medical care.

403

F.

Inmate
No.

App'x

410,

413

Designation

3:CV-08-0193,

2009).

&

Dr.

U.S.

2010);

Glaster

Classification

2515787,
Clarke's

at

*3-4

Motion

v.

Fed.

BOP-

Personell/Officer,
(M.D.

for

Pa.

Aug.

Summary

13,

Judgment

27) will be granted.

Although the normal
§ 1997e(a)

Cir.

Custody

2009 WL

Accordingly,

(Docket No.

(11th

Sims v. Nguyen,

remedy for

a failure to

is dismissal without prejudice,

at 735,

exhaust under

see, e.g.,

Booth,

532

dismissal with prejudice may be appropriate "where

exhaustion was

required but

administrative

remedies

have become

unavailable after the prisoner had ample opportunity to use them
and

no

Berry v.

v.

special
Kerik,

Marlett,

330

circumstances
366

F.3d

F.

App'x

3:11CV135,

85,

161,

Clarke,

No.

2011).

That is the case here.

regular

grievance

and

justified
88

(2d

Cir.

162-63

2011 WL 3840979,

pursue

failure
2004);

(10th
at *5

Cir.

to

exhaust."

see Van Houten

2009);

(E.D.

Va.

Lee

Aug.

v.
29,

Arambula failed to file a proper

an

11

appropriate

appeal

within

the

time

limits

(Grievance

has

not

required

the

VDOC

Grievance

Procedure.

§§ 866.1.VI.A.1,

866.1.VI.D.6.)

demonstrated

that

any

circumstances

to

the

administrative

failure

Procedure

by

utilize

established

time

frame.

special

Accordingly,

remedies

the

Arambula

excuse

his

within

the

action

will

be

notes

that

the

dismissed with prejudice.
With

record

considerable

shows

Arambula's

On

wound

several

treat

the

consternation,

nursing

and

staff

that

Clarke

Court

was
knew

occasions,

him

the

Dr.

improperly
that

she

the

She

directly.

instructed

had

right

every

to

nursing

to

be

treating
the

staff

expect

case.

how

that

to

her

instructions would be followed when she first gave them.

However,
were

not

course:
which

when she knew that her twice repeated instructions

being
on

she

several

knew

Clarke take

followed,

were

by

not

being

on the treatment

doctor's

Whether

that

occasions

issuing

followed.

because

fired for

of

it

is

record does not

too

late

tell us

now

Only

the

same

instructions

later,

The

record

counsel's

to

remedy

that either.

12

show that

persistent

nurses were not disciplined or fired,

perhaps

follow

did

Dr.

of the wound herself.

instructions.
is

to

the record here to

disciplined or

a

continued

subsequent

One would expect

staff was

she

the nursing

refusal to abide

does

oversight

not
or

so

reflect.

because

one cannot discern.

that

circumstance.

the
And,

The

However,

Clarke

and

nursing
record

it would be wise for the prison officials and Dr.

any

staff
will

similar

other

that

not

remedies.

Then,

failures

be

neglect

doctors

in

of

tolerated.

might

not

the

the

prison

sort

Indeed,

fail

to

to

that

an

instruct

appear

inmate

exhaust

in

the
this

subjected

to

administrative

the outcome of that inmate's legal action might

be quite different than the outcome here.
The

Clerk

is

directed

to

send

a

copy

Opinion to Arambula and counsel of record,

shall

assure

delivered

Deep

to

Meadow

that
the

a

copy

Warden,

Correctional

of

this

the

the

Memorandum

and counsel of record

Memorandum Opinion

nursing

Center

of

staff

and

and

counsel

the

shall

be

doctors

at

shall

certify

compliance with this directive.
It

is

so ORDERED.

/s/

fUt

Robert E. Payne
Senior United States District Judge

Richmond, Virginia

Date: February t»j, 2012

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