Carpenter v. Chesapeake Sheriff Office - Chesapeake City Jail et al
Filing
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MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 5/22/12. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
GARY CONRAD CARPENTER,
Plaintiff,
v.
DOCTOR WARREN HERCULES, et al,
Defendants.
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Civil Action No. 3:10cv241-HEH
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MEMORANDUM OPINION
(Dismissing Claims Against Unserved Defendant and
Granting Defendants' Motion for Summary Judgment)
Gary Conrad Carpenter, a Virginia prisoner proceeding pro se and informa
pauperis, brings this action pursuant to 42 U.S.C. § 1983. Carpenter contends that, while
incarcerated atthe Chesapeake Correctional Center ("CCC"), the defendants1 provided
inadequate medical care for his injured hand inviolation ofthe Eighth Amendment.2 The
matter is before the Court on Carpenter's failure to serve Pam Smith and the Motion for
Summary Judgment filed by the remaining defendants.
I. Carpenter's Failure to Serve Smith
Pursuant to Federal Rule of Civil Procedure 4(m), Carpenter had 120 days from
the filing of the complaint to serve each defendant. Here, that period commenced on
1Inaddition to Pam Smith, Carpenter named the following individuals and entities as
defendants: John R. Newhart, Chesapeake City, Marguett Williams, Conmed, and Warren
Hercules (hereinafter, collectively "Defendants")
2"Excessive bail shall notbe required, nor excessive fines imposed, nor cruel and
no
unusual punishments inflicted." U.S. Const, amend. VIII
October 26, 2011, when, by Memorandum Order, the Court informed Carpenter that he
had 120 days to serve the defendants and the Court issued process for any defendant
whose address Carpenter had provided to the Court. Carpenter did not provide the Court
with a street address for Smith.
More than 120 days have elapsed since the entry of the October 26, 2011
Memorandum Order. By Memorandum Order entered on February 14, 2012, the Court
directed Carpenter to show good cause for his failure to serve Smith. Carpenter has not
responded. Accordingly, all claims against Smith will be dismissed without prejudice.
II. Defendants' Motion for Summary Judgment
Defendants have moved for summary judgment on the ground that, inter alia,
Carpenter failed to exhaust his administrative remedies for his claim that Defendants
denied him adequate medical care for his hand. For the reasons set forth below, the
motion will be granted.
A.
Standard for Summary Judgment
Summary judgment must be rendered "if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(a). It is the responsibility of the party seeking summary
judgment to inform the court of the basis for the motion, and to identify the parts of the
record which demonstrate the absence of a genuine issue of material fact. See Celotex
Corp. v. Catrett, All U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the
burden of proof at trial on a dispositive issue, a summary judgment motion may properly
be made in reliance solely on the pleadings, depositions, answers to interrogatories, and
admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is
properly supported, the nonmoving party must go beyond the pleadings and, by citing
affidavits or '"depositions, answers to interrogatories, and admissions on file,' designate
'specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed.
R. Civ. P. 56(c) and 56(e) (1986)). Additionally, '"Rule 56 does not impose upon the
district court a duty to sift through the record in search of evidence to support a party's
opposition to summary judgment.'" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)
(quotingSkotakv. TennecoResins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992)); see
Fed. R. Civ. P. 56(c)(3) ("The court need consider only cited materials, but it may
consider other materials in the record.").
Because the exhaustion of administrative remedies is an affirmative defense,
Defendants bear the burden of pleading and proving lack of exhaustion. Jones v. Bock,
549 U.S. 199, 216 (2007). In support of their motion, Defendants have submitted the
3Additionally, Local Civil Rule 56(B) provides:
Each brief in support of a motion for summary judgment shall include a
specifically captioned section listing all material facts as to which the moving
party contends there is no genuine issue and citing the parts of the record relied on
to support the listed facts as alleged to be undisputed. A brief in response to such
a motion shall include a specifically captioned section listing all material facts as
to which it is contended that there exists a genuine issue necessary to be litigated
and citing the parts of the record relied on to support the facts alleged to be in
dispute. In determining a motion for summary judgment, the Court may assume
that facts identified by the moving party in its listing of material facts are
admitted, unless such a fact is controverted in the statement of genuine issues
filed in opposition to the motion.
E.D. Va. Loc. Civ. R. 56(B).
Declaration ofMajor David A. Hackworth4 (Defs. Mem. Supp. Mot. Summ. J. Ex. 2
("Hackworth Decl.")), Carpenter's grievance related submissions (Hackworth Decl. Ex.
A), and a copy of the CCC's inmate handbook setting forth CCC's grievance procedure
(Hackworth Decl. Ex. B).
B.
Summary of Pertinent Facts
1.
Carpenter's Allegations
Carpenter alleges that he broke his hand on January 23, 2010, but that he had to
wait forty days before a doctor performed surgery.5 (Am. Compl. (Dk. No. 12).)
Carpenter contends that delays in providing medical care resulted in nerve damage to his
hand, arm, and neck. On April 8,2011, Carpenter left CCC and went to the Virginia
Department of Corrections.
2.
CCC's Grievance Procedure
CCC has adopted a formal grievance procedure. The pertinent rules require that
an inmate must attempt to resolve his complaint on an informal level before he files a
formal grievance. (Hackworth Decl. Ex. B 37.) At the informal level, the inmate should
verbally direct his complaint to his housing deputy for resolution or referral. If the
housing deputy or his supervisor is unable to resolve the complaint, the inmate may
choose to file a formal grievance. (Id.)
4Hackworth is the Chief of Administration atthe Sheriffs Office for the City of
Chesapeake.
5The Court received Carpenter's original complaint (Dk. No. 1) onApril 5, 2010.
All inmate grievances must be filed on an "Inmate Grievance Form" ("the Form").
(Id. at 38.) The inmate must complete the Form and file it with any correctional staff
member within five (5) days of the date of incident or event that is basis the for the
grievance, unless circumstances make it unreasonable to file the Form within that time
period. (Id.) The correctional staff member receiving the Form will provide his or her
signature and the date the grievance was received. The staff member will then forward
the Form to either the Correctional Lieutenant or to the supervisor having jurisdiction
over the area in question (hereinafter, the "Responder"). (Id.) Upon receipt, the
Responder will review the Form and issue a written decision in Part 4 of the Form.
(Hackworth Decl. 1 8.)
If the inmate is dissatisfied with the Responder's decision, the inmate may appeal
that decision to the Chief of Corrections for final comment and/or resolution.
(Hackworth Decl. Ex. B. 38.) The inmate must state his desire to appeal the Responder's
decision in writing within five (5) days of receiving a decision. (Id.) The inmate may
state his desire to appeal either by signing his name on the appropriate part of the Form or
by drafting a letter to the Chief of Corrections ("Final Reviewer").
The Final Reviewer will review both the inmate's statement on the Form and the
Responder's decision on the Form. (Id. at 39.) The Final Reviewer will then send a
written response, called a Final Resolution, to the inmate within five (5) days of receiving
the inmate's appeal. (Id.) Once the inmate's grievance reaches the Final Reviewer on
appeal, the inmate has exhausted his administrative remedies.
3.
Carpenter's Pertinent Grievances
(a)
January 24, 2010 Grievance
On January 24,2010, Carpenter submitted a grievance wherein he complained that
he had not received medical care since he broke his hand on January 23, 2010.
(Hackworth Decl. Ex. A.) Correctional staff responded that on January 25, 2010, Dr.
Hercules had examined Carpenter. Carpenter accepted that resolution of his grievance
and did not appeal.
(b)
February 9, 2010 Grievance
On February 9,2010, Carpenter submitted another grievance wherein he stated
that he was in a lot ofpain because of his hand and was not receiving adequate medical
care for his hand. On February 12, 2010, Correctional staff informed Carpenter of a
scheduled appointment with an outside physician and reminded Carpenter of his current
prescription for pain medication. Carpenter accepted that resolution of his grievance and
did not appeal.
(c)
February 14,2010 Grievance
On February 14, 2010, Carpenter submitted a grievance wherein he complained
that the medical staff only provided pain medication only a day and that he never
received adequate medical attention for his hand. On February 15, 2010, correctional
staff responded that Carpenter had an appointment with Dr. Hercules on February 15,
2010 and assured Carpenter that he had an appointment with a specialist. Carpenter
accepted that resolution of his grievance.
(d)
May 28,2010 Grievance
On May 28, 2010, Carpenter filed a grievance wherein he complained that his
prescription for Elavil had been discontinued. Carpenter stated that Elavil was the only
thing that helped with the pain from his hand. Correctional staff responded that
Carpenter's prescription for Elavil was terminated because Carpenter was caught
hoarding the Elavil on numerous occasions. Carpenter did not accept this resolution of
his grievance and appealed to the Final Reviewer. The Final Reviewer upheld that first
level determination ofCarpenter's grievance.6
(e)
December 15,2010 Grievance
On December 15, 2010, Carpenter submitted a grievance wherein he complained
that he still was experiencing a lot of problems with his hand, but was not receiving any
medical attention. On December 17, 2010, correctional staff responded that Carpenter
had an upcoming medical appointment. Carpenter accepted that resolution of his
grievance.
(f)
December 29,2010 Grievance
On December 29, 2010, Carpenter submitted a grievance wherein he complained
that his hand hurt and that things were getting worse. Correctional staff responded that
Carpenter had an appointment scheduled and that he should continue to take his current
medication until that appointment. Carpenter accepted that resolution of his grievance.
6Carpenter's current complaint (Dk. No. 12) does not raise any issue with respect to the
denial of pain medication.
(g)
January 7,2011 Grievance
On January 7, 2011, Carpenter submitted a grievance stating that he was
experiencing a lot of problems with his hand. On January 13, 2011, correctional staff
informed Carpenter that he had another outside appointment scheduled and that it
normally takes some time to schedule appointments. Carpenter accepted that resolution
of his grievance.
C.
Exhaustion Analysis
The pertinent statute provides: "No action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983] 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) (1996). This language "naturally
requires a prisoner to exhaust the grievance procedures offered, whether or not the
possible responses cover the specific relief the prisoner demands." Booth v. Churner,
532U.S. 731, 738 (2001). Generally, in order to satisfy the exhaustion requirement, the
inmate must file a grievance raising the claim and pursue the grievance through all
available levels of appeal. See Woodford v. Ngo, 548 U.S. 81, 90 (2006). Additionally,
the Supreme Court has instructed that section 1997e(a) "requires proper exhaustion." Id.
at 93. The Supreme Court explained that "[pjroper exhaustion demands compliance with
an agency's deadlines and other critical procedural rules," Id. at 90, "'so that the agency
addresses the issues on the merits.'" Id. (quoting Pozo v. McCaughtry, 286 F.3d 1022,
1024 (7th Cir. 2002)).
Although Carpenter filed a number of grievances complaining about the quality of
medical treatment for his hand, he failed to pursue any grievance complaining about the
delay in treatment or inadequacy of treatment for his hand through all available levels of
appeal. See Woodford, 548 U.S. at 90. Therefore, he failed to satisfy his obligations
under 42 U.S.C. § 1997e(a).
Carpenter's May 28,2010 grievance did not exhaust administrative remedies with
respect to the delayed and inadequate medical care that is the subject of Carpenter's suit.
Carpenter filed the May 28, 2010 grievance after he filed his original complaint in this
action, and thus, that grievance is not relevant to the exhaustion inquiry. See Johnson v.
Jones, 340 F.3d 624, 628 (8th Cir. 2003) (citing cases from six other circuits). "Under
the plain language of section 1997e(a), an inmate must exhaust administrative remedies
before filing suit in federal court. Thus, in considering motions to dismiss for failure to
exhaust under section 1997e(a), the district court must look to the time of filing ... to
determine if exhaustion has occurred." Id. at 627. "[E]xhmstionpendente lite
undermines the objectives of section 1997e(a) and ... the language of section 1997e(a)
clearly contemplates exhaustion prior to the commencement of the action as an
indispensable requirement, thus requiring an outright dismissal of such actions rather than
issuing continuances so that exhaustion may occur." Id. at 628 (citing cases).
"[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 special circumstances justified failure to exhaust.'"
McCoy v. Williams, No. 3:10CV349, 2011 WL 5153253, at *4 (E.D. Va. Oct. 28, 2011)
(quoting Be/ry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004)). Carpenter's claims against
Defendants fall within this criteria. (Hackworth Decl. Ex. B 38 (requiring grievance to
be filed within five (5) days of the incident or occurrence giving rise to the grievance).)
Accordingly, Carpenter's claims will be dismissed with prejudice.
Defendants' Motion for Summary Judgment will be granted. The action will be
dismissed.
An appropriate order will accompany this Memorandum Opinion.
M
ill
isL
HENRY E. HUDSON
Date: Iflfru a.a,aol*-
UNITED STATES DISTRICT JUDGE
Richmond, Virginia
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