Turner v. Cuccinelli et al

Filing 52

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/10/13. Copy sent: Yes(tdai, )

IN THE

UNITED

FOR THE

STATES

DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Richmond Division

EARL S.

TURNER,

Plaintiff,
v.

Civil Action No.

KEN CUCCINELLI,

3:11CV181

et al.,

Defendants.

MEMORANDUM OPINION

Earl

S.

Turner,

in forma pauperis,

a Virginia prisoner proceeding pro

filed this 42 U.S.C.

se and

§ 1983 complaint.

The

matter is proceeding on Turner's Amended Complaint (ECF No. 15).
In his Amended Complaint, Turner names the following individuals

as defendants:

Ken Cuccinelli, Harold Clarke, Ted Hull, Carolyn

Neale,1 and Lynn Sudduth as defendants.2
the Court on the Motion
Neale,

and

responded.

Sudduth

for Summary Judgment

("Defendants").

(ECF

No.

filed by Hull,
44.)

Turner

The matter is ripe for disposition.

I.

In

The matter is before

2010,

Turner

SUMMARY OF ALLEGATIONS

was

Regional Jail ("NNRJ").3

incarcerated

in

the

(See Am. Compl. 1-2.)

Northern

Neck

In November of

Turner misspelled Neale's name in the Amended Complaint.
(See, e.g., Am. Compl. 1.)
The

Court

previously dismissed

Cuccinelli

and Clarke

as

defendants.

The Court has corrected the capitalization and spelling in
the quotations to Turner's Amended Complaint.
The Court employs

2010,

Turner's

After

reviewing Turner's

the

doctor

medical

at

NNRJ

records

medical

staff

Sudduth [,]

to

[Turner]

get

the

overdue

(spacing corrected).)
surgery [,]

several

occasions

constant

contends

Eighth4

[Turner]

the

and

is

lost

foregoing

(Id.

examining
was

to

bed

2.)

Turner,

warranted."

Carolyn Neale and Lynn
to

make

use

for

of

possible

his

pain.''

leg

(Id.)

(Id.

and on

days

(Id. )

rights

that

[Turner's]

numerous

violated his

Amendments.

at

surgery . . . ."

tremendous

omissions

Fourteenth5

with

Turner

under the

Turner

demands

(IcL_ at 4.)

SUMMARY JUDGMENT

Summary judgment must be

is no genuine

needed

excruciating

$50,000,000.00 in damages.

there

and

surgery

action

and

confined

and

II.

any

NNRJ.

"Due to the lengthy delay in

has

swelling

that

... at NNRJ,

take

at

records

"determined

(Id. ) "The medical
refused

arrived

dispute

STANDARD

rendered "if the movant shows that

as

to any material

fact and

the

the pagination assigned to Turner's Amended Complaint by the
Court's CM/ECF docketing system.
"Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted."
U.S.
Const,

amend.

VIII.

"No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws."
U.S. Const,
amend.

XIV,

§ 1.

movant

Civ.

is entitled to

P.

56(a).

judgment as a matter

of

law."

Fed.

R.

The party seeking summary judgment bears the

responsibility 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.

v.

Catrett,

477 U.S.

317,

323

(1986).

See Celotex Corp.

"[W]here the nonmoving

party will bear the burden of proof at trial on a dispositive
issue,

a

reliance

summary
solely

judgment
on

the

motion

may

pleadings,

properly

be

in

answers

depositions,

made

to

interrogatories, and admissions on file."

Id. at 324 (internal

quotation

motion

marks

omitted).

When

the

is

properly

supported, the nonmoving party must go beyond the pleadings and,
by

citing

affidavits

interrogatories,

or

"'depositions,

and admissions on file,'

answers

designate

'specific

facts showing that there is a genuine issue for trial.'"

(quoting former Fed. R. Civ. P. 56(c) and 56(e)
In

draw

reviewing

all

a

summary

justifiable

judgment

inferences

in

the

of

court

the

party."

United States v.

Carolina Transformer Co.,

832,

(4th Cir.

(citing Anderson

835

Inc.,

477 U.S.

242,

1992)

255 (1986)).

(citing Improvement Co.

v.
3

v.

"must

nonmoving
978

F.2d

Liberty Lobby,

However, a mere scintilla of

evidence will not preclude summary judgment.
at 251

id.

(1986)).

motion,

favor

to

Munson,

Anderson, 477 U.S.
81 U.S.

(14 Wall.)

442,

448

judge,

(1872)).

not

"'[T]here is a preliminary question for the

whether

there

is

literally no

evidence,

but whether

there is any upon which a jury could properly proceed to find a

verdict

for

the

imposed.'"

Id.

party

.

.

. upon

(quoting Munson,

whom

the

onus

81 U.S. at 448).

of

proof

is

Additionally,

"'Rule 56 does not impose upon the district court a duty to sift

through the

record

opposition

to

1527,

1537

(5th

Inc.,

in

953 F.2d 909,

P.

summary

56(c) (3)

materials

search of

Cir.

judgment.'"
1994)

court

to

support

Forsyth

(quoting

915 & n.7

("The

evidence

Barr,

Skotak v.

(5th Cir.

need

v.

Resins,
R. Civ.

only

the

cited

. . . .") .

submitted the

following evidence:

Superintendent

No. 45)

F.3d

Tenneco

In support of their Motion for Summary Judgment,

the

19

see Fed.

1992));

consider

a party's

Ex.

A

(formerly

Lynn

affidavit

from

of

the

NNRJ

("Hull Aff.");
Sudduth)

Carolyn

(Br.

(id.

Ex.

Neale,

the

C

Dr.

board

A.

Reese,

a

Supp.

an affidavit

Department at NNRJ (id. Ex.

William

an affidavit

B

from Ted Hull,

Mot.

Summ.

J.

from Lynn M.

("Sudduth

Supervisor

("Neale Aff."));

certified

Defendants

of

Resler

Aff."));

the

(ECF

an

Medical

an affidavit from

physician

and

the

Medical Director of the NNRJ (id. Ex. D ("Reese Aff.")); and, an

affidavit

from

Dr.

Erik

M.

Krushinski,

a

board-certified

orthopedic specialist (id. Ex. E ("Krushinski Aff.")).6
In

response

to

submitted a copy
Resp.

(ECF

Response

content

No.

Motion

for

Summary

of a radiology report.
47)

fails

of

the

Ex.

to

that

F.)

Turner's

constitute

document

not

Turner

(PL's Particularized

notarized

admissible

"is

Judgment,

Particularized

evidence

sworn

to

because

under

penalty

the

of

perjury and there is no indication that the notary administered
an oath to [Turner]."

McCoy v.

3735128, at *2 (E.D. Va.
Corp.

v. Kline,

845

Computing Servs.
321

(4th Cir.

255829,

at

foregoing

*2

Sept.

F.2d 1300,

Corp.
2005);

(E.D.

submissions,

v.

the

No. 3:08CV555, 2010 WL

22,

(citing Nissholwai Am.

2010)

1305-07

(5th Cir.

1988);

Cisco Sys., Inc./ 152 F.

Goode

Va.

Robinson,

v.

Feb.

Gray,

3,

No.

2009)).

following

facts

App'x 317,

3:07cvl89,

In

Network

2009

WL

of

the

light

are established for

purposes of the Motion for Summary Judgment.

III.

SUMMARY OF PERTINENT FACTS

Turner was confined in the NNRJ

from September 23,

2010,

until his transfer to the Dillwyn Correctional Center on May 17,
2012.

(Hull Aff.

SI 2.)

Defendants

also

On November 2,
submitted

the

2010,

Dr.

copies

grievances (Hull Aff. Exs. 1, 2) and Turner's
(Reese Aff. Exs. 1-4; Krushinski Aff. Ex. 1.)

Reese the

of

medical

Turner's
records

Medical

Director at the NNRJ,

referred Turner to an orthopedic

specialist for complaints related to Turner's knee.

M

1,

3.)

On November 18,

specialist,

Krushinski,

an orthopedic

treated Turner for complaints of right knee pain.

(Krushinski Aff.
exercise[,]
or

2010, Dr.

(Reese Aff.

1

2.)

and a brace.

ligament

Dr.

Krushinski

[Dr. Krushinski]

reconstruction.

[Dr. Krushinski's]

prescribed

Turner

treatment plan."

On or about December 8,

"cortisone,

did not recommend ACL

refused

the

cortisone

and

(Id. SI 3. )

2010, Turner submitted a grievance

wherein he requested surgery for a torn ligament for an injury
he had sustained while detained by the Federal Bureau of Prisons

("BOP"), prior to his incarceration at NNRJ.
at

1-2.)

Turner claimed that

his medical

reflected that Turner required surgery.
Sudduth

denied

Turner's

request

(Hull Aff. Ex.

records

(Id.

because

from the BOP

at 2.)

no

1,

Defendant

documentation

Turner's medical records indicated his need for surgery.

in

(Id.

at 1. )

Turner

appealed

Superintendent Hull.

the

denial

of

his

(Hull Aff. Ex. 2, at 1.)

grievance

to

In his appeal,

Turner claimed that the doctor at the NNRJ also made a written

determination

that

Turner

required

surgery.

responded that "[s]urgery has not been prescribed."

(Id.)
(Id.)

Hull

On

February

attempted

to

(Reese Aff.

treat

SISI 5,

non-steroidal
(Id.

SI 5.)

surgery.

1,

2011

and

October

Turner

for

his

6.)

On October 11, 2011,
(Id. SI 6.)

2011,

complaints

On February 1,

anti-inflammatory

11,

2011,

drugs

Dr.

knee

of

pain.

Turner refused the

Dr.

Reese

prescribed.

Turner told Dr. Reese he needed

Dr. Reese wrote in his notes,

sug for torn ligaments."

Reese

(Reese Aff.

Ex.

4,

at

"In need of

1.)

Dr.

Reese

explains that he "did not prescribe surgery," but "was noting
what Turner told me."
an ACL

brace,

increased

(Reese Aff.

ordered that

his

Neurontin

SI 6.)

[Turner]

in the

Dr. Reese "prescribed

receive

evening

a lower bunk,

to

600

and

milligrams."

(Id.)

"No . . . physician at NNRJ prescribed surgery for Turner's

right knee.

None of the medical records provided by the Federal

Bureau of Prisons indicated that surgery had been prescribed for
Turner's

right

Krushinski
Aff.

knee."

(Neale

Aff.

never prescribed knee

SI

4.)

Drs.

Reese

surgery for Turner.

and

(Reese

SI 7; Krushinski SI 4. )

On May 17,

2012,

Turner was

Correctional

Center on May 17,

August

2012,

31,

(Particularize

Resp.

an

Ex.

MRI

F,

2012.

was

at

transferred to the

2.)

(Hull Aff.

taken

That

of

SI

Dillwyn
2.)

Turner's

test

On
knee.

reflected

"a

chronic

tear ... of

[Turner's]

anterior

cruciate

ligament."

(Id.)

IV.

A.

To

ANALYSIS

Cruel And Unusual Punishment

survive

a

motion

for

summary

Amendment claim,

a plaintiff must

objectively

deprivation

the

"'sufficiently serious,'
officials

acted with a

Johnson v. Quinones,
Wilson v. Seiter,

and

or

harm

'sufficiently culpable

U.S.

294,

an

Eighth

(1)

that

inflicted

was

that subjectively the prison

145 F.3d 164,

501

on

demonstrate that:

suffered

(2)

judgment

298

state of mind.'"

167 (4th Cir.
(1991)).

1998)

(quoting

A medical need is

"serious" if it "'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.'"

v. Shreve,
v.

Sheahan,

535 F.3d 225,
196

F.3d

241 (4th Cir. 2008)

839,

846

(7th Cir.

Iko

(quoting Henderson

1999));

Hamidullah, 281 F. App'x 159, 165 (4th Cir. 2008)

see

Webb

v.

(citing Ramos

v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)).

The subjective prong requires the plaintiff to demonstrate
the defendant acted with deliberate indifference.
Brennan,

511 U.S.

825,

837

(1994).

See Farmer v.

"Deliberate indifference is

a very high standard—a showing of mere negligence will not meet

it."

Grayson v.

Peed, 195 F.3d 692, 695 (4th Cir. 1999)

Estelle v. Gamble,

429 U.S.

(citing

97, 105-06 (1976)).

[A] prison official cannot be found liable under the
Eighth
Amendment
for
denying
an
inmate
humane
conditions

of

confinement

unless

the official

knows

of

and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from
which

the

inference

could be

drawn

risk of serious harm exists,

that

a

substantial

and he must also draw the

inference.

Farmer, 511 U.S. at 837.

Farmer teaches "that general knowledge

of facts creating a substantial risk of harm is not enough.
prison

official

general

must

facts and the

inmate."

Johnson,

survive

a

draw

specific

the

inference

risk of

harm

between

129 F.3d 336,

motion

for

340 (4th Cir.

summary

indifference standard requires

judgment,

those

confronting

145 F.3d at 168 (citing Farmer,

837); Rich v. Bruce,
to

also

The

the

511 U.S.

1997)).
the

at

Thus,

deliberate

a plaintiff to demonstrate

that

"the official in question subjectively recognized a substantial

risk of harm" and "that the official in question subjectively
recognized that his actions were 'inappropriate in light of that

risk.'"
(4th

Cir.

Parrish ex rel.
2004)

Lee v.

(quoting

evaluating a prisoner's

Rich,

complaint

Cleveland,
129

F.3d

372 F.3d 294,
at

340

regarding medical

n.2).

care,

303
In

the

Court is mindful that "society does not expect that prisoners
will have unqualified access to health care" or to the medical

treatment of their choosing.

(1992)
the

(citing Estelle,

right

which

is

to

medical

Hudson v. McMillian,

429 U.S.
treatment

medically necessary

(4th

Cir.

circumstances,

is

limited

and not

considered merely desirable."

48

at 103-04).

503 U.S. 1,

9

In this regard,
to

that

to "that

treatment

which may

be

Godwin,

551 F.2d 44,

Furthermore,

1977).

Bowring v.

absent

exceptional

an inmate's disagreement with medical personnel

with respect to a course of treatment is insufficient to state a
cognizable

constitutional

deliberate indifference.

849 (4th Cir. 1985)
6 (3d Cir.

Here,

claim,

much

See Wright v.

to

Collins,

demonstrate

766 F.2d 841,

(citing Gittlemacker v. Prasse, 428 F.2d 1,

1970)) .

Turner alleges that Defendants failed to provide the

surgery that a doctor had ordered.

failed to muster
surgery

less

for

his

any
knee

evidence
or

indifference

by failing

Turner

disagree

may

that

to
with

(Am. Compl. 2.)

showing that
Defendants

provide
Drs.

a

doctor ordered

acted

with

such

surgery.

Reese's

and

conclusion that he did not require surgery,
fails to demonstrate deliberate indifference.

deliberate

Although
Krushinski's

that disagreement
See Wright,

F.2d at 849 (citing Gittlemacker, 428 F.2d at 6).
Turner's Eighth Amendment claim will be dismissed.

10

Turner has

766

Accordingly,

B.

Equal Protection

In order

summary

for Turner's

judgment,

Turner

equal

protection claim to survive

must

demonstrate

that

Defendants

"treated [him] differently from others with whom he is similarly
situated

and

intentional

that
or

the

unequal

purposeful

Garraqhty, 239 F.3d 648,

treatment

the

discrimination."

654

(4th Cir. 2001).

submit any evidence demonstrating
intentional

was

discrimination.

result

Morrison

of
v.

Turner fails to

either unequal treatment

Accordingly,

Turner's

or

equal

protection claim will be dismissed.
The
granted.
The

Motion

for

Summary

Judgment

(ECF

No.

copy

of

44)

will

be

The action will be dismissed.
Clerk

is

directed

to

send

a

the

Memorandum

Opinion to Turner and counsel of record.

/s/

» f

Date: i/uaJHuCl^ (& 7"f$

Robert E. Payne

JLlA

Senior United States District Judge

Richmondf Virginia

11