Daniels v. Caldwell

Filing 43

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 1/4/13. Copy sent: Yes(tdai, )

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

JOSEPH A.

DANIELS,

Plaintiff,
v.

Civil Action No.

PAUL E.

3:11CV461

CALDWELL,

Defendant.
MEMORANDUM OPINION

Joseph

A.

Daniels,

a Virginia

prisoner

proceeding pro

se

and in forma pauperis, filed this 42 U.S.C. § 19831 complaint.
The

matter

(Docket

THE

No.

is

before

19)

APPOINTMENT

set forth below,

and

OF

the

Court

Daniels's

COUNSEL"

on

Caldwell's

"MOTION

(Docket

No.

FOR

Motion

to

Dismiss

RECONSIDERATION

32).

For

the

reasons

Caldwell's Motion to Dismiss will be granted in

part and denied in part and the "MOTION
THE APPOINTMENT OF COUNSEL" will be

FOR RECONSIDERATION FOR

denied.

1 That statute provides, in pertinent part:
Every person who,
under color of any statute
. . . of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other
person
within
the
jurisdiction
thereof
to
the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law ....
42 U.S.C.

§

1983.

FOR

I.

"A

motion

sufficiency
contests

STANDARD FOR A

to

of

a

dismiss

under

complaint;

surrounding the

MOTION TO DISMISS

Rule

12(b)(6)

importantly,

facts,

applicability of defenses."

it

the merits

does

of

a

tests

the

not

resolve

claim,

or the

Republican Party of N.C. v. Martin,

980 F.2d 943, 952

(4th Cir.

1992)

(citing 5A Charles A. Wright &

Arthur R. Miller,

Federal Practice and Procedure § 1356

(1990)).

In considering a motion to dismiss for failure to state a claim,
a plaintiff's well-pleaded allegations are taken as true and the

complaint

is

1993);

applies

see

the

only

also Martin,

to

factual

considering

a

identifying

pleadings

conclusions,

motion

are

not

Ashcroft v. Iqbal,

The

in

light

most

favorable

to

the

Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th

plaintiff.
Cir.

viewed

Federal

980

allegations,

to

dismiss

that,

556 U.S.

of

952.

however,

can

because

entitled

Rules

F.2d at

choose

they

to
679

662,

Civil

the

are

This

principle

and

wa

to

begin

no

assumption

court

more

than

(2009).

Procedure

"require[

of

by

truth."

] only

^a

short and plain statement of the claim showing that the pleader
is

entitled

to

relief,'

notice of what the
rests.'"

Bell Atl.

(second alteration

in

order

to

*give

the

defendant

fair

. . . claim is and the grounds upon which it
Corp.

in

v.

Twombly,

original)

550 U.S.

(quoting Conley
2

544,

v.

555

(2007)

Gibson,

355

U.S.

41,

47

with

complaints

"formulaic

Id.

(1957)).

Plaintiffs

containing only "labels

recitation

of

the

(citations omitted).

sufficient

level,"

"to

id.

"plausible

raise

its

"conceivable,"

a

id.

plaintiff pleads
reasonable

right

to

id.

satisfy this

and
of

relief

conclusions"

a

cause

above

stating

at

"A claim has

U.S.

at

that

Iqbal,
556).

of

570,

the

a

or a

action."

speculative

claim

rather

that

than

is

merely

facial plausibility when the

factual content that allows

inference

standard

a plaintiff must allege facts

omitted),

face,"

misconduct alleged."
Corp. , 550

elements

Instead,

(citation

on

the

cannot

the

the court to draw

defendant

556 U.S.

Therefore,

is

at 678
in

liable

for

the

(citing Bell Atl.

order

for

a claim or

complaint to survive dismissal for failure to state a claim, the
plaintiff

must

"allege

elements of [his or]

&

Co. ,

324

Microsoft

F.3d

her claim."

761,

(4th

Cir.

the

DuPont de Nemours

(citing

Dickson

v.

Iodice

v.

Cir.

2002)).

Lastly,

while the Court liberally construes pro se complaints,

Gordon v.

Leeke,

the

574

F.2d 1147,

inmate's

270,

1151

advocate,

213

2003)

all

(4th

F.3d

193,

Bass v. E.I.

state

2002);

289

F.3d

to

Cir.

States,

309

765

sufficient

(4th

United

Corp.,

facts

281

(4th Cir.

sua

sponte

1978),

developing

constitutional claims the inmate failed to
face of his complaint.

See Brock v.

it does

not

act

statutory

as

and

clearly raise on the

Carroll,

107

F.3d 241,

243

(4th Cir.

1997)

(Luttig,

Hampton, 775 F.2d 1274,

J.,

1278

II.

concurring);

(4th Cir.

Beaudett

v.

City of

1985).

DANIELS'S COMPLAINT

In September of 2009,

Daniels was detained in the Henrico

County Jail ("the Jail").

(Compl. 3.)2

The sum of Daniels's

allegations is as follows:

On the date of September 1, 2009, at Saint Mary's
Hospital
in Richmond Virginia,
an operation was
performed on me by Dr. Paul E. Caldwell in order to
repair my left arm bicep muscle and rotary [sic] cuff.
When healed and exercising to restore mobility of my
arm, I noticed that my left shoulder anterior deltoid
muscle was removed unnecessarily.
When bringing this
claim to Dr.
Caldwell,
his
response was that my
circumstances was
For

showed

Doctor

[sic]

better than before.

Caldwell

deliberate

to

make

indifference

such

and

the

a

statement

intentional

denial of adequate medical care.
The above actions
are a violation to my Eighth Amendment right, to be
free of cruel and unusual punishment.
To date, I am without total use

of mobility with

my left arm and continue to suffer pain as a result of
not being given the therapy need[ed].

(Id.

at

4

(punctuation

corrected).)

damages and injunctive relief.

III.

Caldwell
because:

(1)

Daniels

that

Daniels's

Daniels's
claim

monetary

(Id. at 5.)

CALDWELL'S ARGUMENTS

argues

demands

for

FOR DISMISSAL

claims

should be

injunctive

relief

dismissed
is

moot;

2 Because the Complaint is not paginated, the Court employs
the page numbers assigned to the Complaint by the Court's CM/ECF
docketing system.

(2) Daniels

failed

(3) Daniels

fails

granted;

and,

(4)

to
to

exhaust

state

Caldwell

a

his

claim

administrative
upon

which

remedies;

relief

can

be

is entitled to qualified immunity.

For the reasons set forth below,

the Court grants the Motion to

Dismiss with respect to the first argument, but otherwise denies
the Motion to Dismiss.
A.

Mootness

Daniels's

claim

against

Caldwell

for

inadequate

care arose during Daniels's incarceration in the Jail.

medical

Daniels,

however, acknowledges that he has been "transferred from Henrico

County Jail into the Department of Corrections."
" [A] s a general rule,
particular

prison

declaratory

relief

Rendelman v.
Incumaa

v.

Williams v.

v.

Rogers,

with
569

Griffin,

claims

952

for

to

respect

507

F.2d

his

F.3d

Ozmint,

781

at 3.)

a prisoner's transfer or release from a

moots

Rouse,

(Id.

incarceration

182,

F.3d

186

281,

F.2d 820,

1047,

1048

his

n.l

(4th Cir.

286-87
823

injunctive

(4th

(4th
Cir.

(4th Cir.

and

there."

2009)

(citing

Cir.

2007);

1991);

Taylor

1986)).

Daniels

fails to allege facts that suggest that his claim for injunctive

relief

with

Daniels's
moot.

respect

request

to

for

Caldwell

remains

injunctive

relief

viable.

Accordingly,

will

dismissed

be

as

B.

Failure To Exhaust Administrative Remedies

The

pertinent

brought

with

statute

respect

to

provides:

prison

"No

action

conditions

under

shall
[42

be

U.S.C.

§ 1983] or any other Federal law, by a prisoner confined in any

jail,

prison,

administrative

U.S.C.

§

or

other

remedies

correctional

as

1997e(a).

are

facility

available

Generally,

in

are

order

until

such

exhausted."

to

42

satisfy

the

exhaustion requirement, the inmate must file a grievance raising
the claim and pursue the grievance through all available levels
See Woodford v. Ngo, 548 U.S. 81, 90 (2006).

of appeal.
Because

the

exhaustion

affirmative defense,
lack of

Jones

Although

it is possible

dismiss,

the

to

the

has

exhaust

face

Serv.,

administrative

v.

Bock,

Watkins,

479

an

(2007).

in a motion

Court

of

Appeals

for

F.3d 717,

proposition that

216

defense

F.3d

F.3d

199,

the

"it

seems

remedies

of a complaint . . . ."

517

U.S.

raise

administrative

Bennette,

549

to

cautioned that

407

is

States

United

Inc.,

remedies

Caldwell bears the burden of demonstrating

exhaustion.

Circuit

of

674,
725

1257,

682

Fourth

unlikely that the

failure

often

Anderson v.

(4th Cir.
1260

the

will

(4th

to

Cir.
2008)

(10th

XYZ

2005);

apparent

Corr.
see

from

Health

Moore

v.

(quoting Freeman v.

Cir.

"^only in rare cases will

be

2007),

a district

for

the

court be

able to conclude from the face of the complaint that a prisoner

has

not

exhausted

his

administrative

remedies

and

that

he

is

without a valid excuse'").

Caldwell
on

the

argues

face

that
the

of

Daniels's

lack

Complaint.

of

exhaustion appears

Specifically,

Daniels

acknowledges that the Jail had a grievance procedure and that he

did not file a grievance based on his complaint.
Contrary to Caldwell's assertion,

(Compl. 3.)3

this is not one of the "*rare

cases'" where the inmate's failure to comply with § 1997e(a)
be assessed from the face of the Complaint.

725

(quoting Freeman,

Without

grievance

Moore,

517

can

F.3d at

479 F.3d at 1260).

information

procedure,

about

the

the

requirements

Court

cannot

of

the

ascertain

Jail

whether

Daniels's complaint about medical care conducted outside of the
Jail

was

determine

grieveable.
whether

See Anderson,

an

inmate

has

407

F.3d

exhausted

at

his

682 n.5

("To

administrative

remedies requires an understanding of the remedies available and
thus likely would require information from the defendant as well
as the inmate."
(2d

Cir.

Cir.
court

(citing Mojias v. Johnson,

2003);

1999))).

Snider

The

considering

3 Daniels

v.

Court

Melindez,

requires

dismissal

explains

of

199

such

351
F.3d

he

did

108,

not

7

(2d

because

complaint

utilize

grievance procedure because he was transferred to
Department of Corrections.
(Compl. 3.)

610-11

113-14

information

a prisoner's

that

F.3d 606,

the

"a

for non-

the

Jail

Virginia

exhaustion must first establish from a legally sufficient source

that

an

administrative

particular
Mojias,

complaint

351

Moreover,

F.3d

without

at

remedy

does
610

more

is

not

applicable

fall

(citing

within

and

an

that

the

exception."

Snider,

information

199

F.3d

at

114).

about

the

Jail

grievance

procedure and the timing of Daniels's transfer, the Court cannot
assess whether Daniels's transfer excuses any failure by Daniels

to

utilize

the

Jail

grievance

procedure.4

Accordingly,

the

Motion to Dismiss the Complaint for the lack of exhaustion will
be denied.

C.

Failure To State A Claim

In order to state a viable claim under 42 U.S.C.

§ 1983,

a

plaintiff must allege that a person acting under color of state

law deprived him or her of a constitutional right or of a right
conferred by a law of the United States.

See Dowe v.

Total

Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th

4
Caldwell
cites
to
Custer
v.
WV
N.
Reg'1
Jail,
No. 2:08cv54, 2009 WL 1390817, at *6 (N.D. W. Va. May 15, 2009),

for the proposition that an inmate's transfer does not relieve
the

inmate

administrative

of

the

remedies.

obligation
In

that

to
case,

exhaust
unlike

his
here,

or
the

her
court

decided the exhaustion defense on a motion for summary judgment
and had the benefit of a record that contained the requirements

of grievance procedures for the pertinent jail.

Id. at *5.

Cir. 1998).5
care,

"a

harmful

To state a claim for the denial of adequate medical

prisoner

to

must

evidence

allege

acts

deliberate

or

omissions

indifference

to

sufficiently

serious

needs."

Estelle v. Gamble, 429 U.S. 97, 106 (1976).6

need

Serious'

is

if

it

is

xone

that

has

been

medical

"A medical

diagnosed

by

a

physician as mandating treatment or one that is so obvious that
even

a

lay

doctor's
causes

person

would

attention'

the

inmate

5 Caldwell

or
'to

easily

if

denial

or

a

necessity

a

treatment
permanent

Complaint

delay

for

in

that the

of

the

life-long handicap or

suffer a

argues

recognize

fails

to set

forth

facts indicating that he was acting "'under color of state law'"
because he provided services to Daniels at a private hospital.
(Mem. Supp. Motion Dismiss 8.)
Caldwell cites no authority for
this proposition and has not made any effort to distinguish
controlling, contrary authority.
Conner v. Donnelly, 42 F.3d
220, 226 (4th Cir. 1994) (concluding physician "acted under
color of state law because he assumed the state's constitutional

obligation

to

provide

irrelevant for the

doctor] provide

medical

care

'under color of

his medical

to

[the

state law'

services

inmate];

it

inquiry that

in his office

is
[the

instead

of

the prison hospital").

6 Constitutional claims pertaining to the denial of adequate
medical

care

Process

Clause

claims

by

by

pretrial
of

the

convicted

detainees

Fourteenth

felons

fall

are

governed

Amendment,

under

the

by

while

Eighth

the
the

Due
same

Amendment

prohibition against cruel and unusual punishment.
Although it
is not clear whether Caldwell was a pretrial detainee or a
convicted felon at the time of the incidents alleged in the
Complaint, the standard for stating a constitutional violation
for denial of adequate medical care remains the same.
See Hill
v. Nicodemus, 979 F.2d 987, 991-92 (4th Cir. 1992).
Thus, in
this instance and considering Daniels's pro se status,
any

failure by
Daniels
to
identify the
correct
constitutional
provision does not support a basis for dismissing the Complaint.
See Gordon v. Leeke,

574 F.2d 1147,
9

1151

(4th Cir.

1978).

loss.'"
1995)

Coppage

v.

Mann,

(quoting Monmouth

834

F.2d 326,

575

(10th Cir.

347

906

Cnty.

(3d Cir.

1980)).

F.

Supp.

Corr.

1987);

Inst'l

not

1037

Inmates

Ramos v.

Caldwell does

had a serious medical need.

1025,

Lamm,

(E.D.

v.

Va.

Lanzaro,

639 F.2d 559,

dispute

that Daniels

(Mem. Supp. Mot. Dismiss 10.)

"Deliberate indifference is a very high standard—a showing

of mere negligence will not meet it."
692, 695

(4th Cir.

Deliberate

1999)

indifference

Grayson v. Peed, 195 F.3d

(citing Estelle,
requires

the

429 U.S. at 105-06).

plaintiff to

allege

facts

that suggest that a particular defendant actually knew of and
disregarded a substantial risk of serious harm to his person.
See Farmer v. Brennan,

511 U.S.

absent exceptional circumstances,
medical

personnel

insufficient
less

with

to state

demonstrate

reflects

Caldwell,

on

at

Furthermore,

to a course

849 (4th Cir.

of treatment

constitutional

1985)

claim,

See

Wright

is

much
v.

(citing Gittlemacker

1970)).

that Daniels's allegations fail to support

a claim of deliberate

Complaint

(1994).

indifference.

428 F.2d 1, 6 (3d Cir.

Caldwell argues

837

an inmate's disagreement with

a cognizable

deliberate

Collins, 766 F.2d 841,
v. Prasse,

respect

825,

indifference.

"that

least

one

Plaintiff
occasion,

Caldwell

was
and

contends

treated
any

by

dispute

that the

Defendant
over

his

treatment rises to nothing more than a disagreement between an
10

inmate and
which

a physician over

does

not

state

a

the
§

1983

circumstances

exist."

that

provided Daniels

by

Caldwell

itself

(Mem.

extinguish

(10th Cir.

1999).

to be untrue,
Daniels's

inmate
the

and a

is

more

alleges

deltoid

muscle

explain

the

Mot.

with

unless

Dismiss

care,

exceptional

11.)

some medical

constitutional

The

fact

care does

claims

not

based

199 F.3d 1220,

on

1224

although they may ultimately prove

and

callous

deltoid

muscle

a

just

about

proper

statement

and,

when

by

indeed,

disagreement

medical

allegations

the

having

a

support

deltoid

a

was

does

not

inadequate,
the

body

not

anterior

that

quite

Daniels's

muscle

the

removed

an

Specially,

of

surgeon

different

between

care.

removal

offers

for

repairing

anterior

a

unnecessary

explanation

these
the

than

the

removal

rather

of

claim

See Hunt v Upoff,

Moreover,

physician

Complaint

removal

proper medical

the allegations of the Complaint show that suggest

claim

together,

Supp.

Daniels's

inadequate medical care.

inmate's

anterior

part.

Taken

assertion
necessary,

that
and

evinced a deliberate indifference to a known,

admittedly serious

medical

need.

104

Williams

v.

See

Estelle,

429
541,

Vincent,

508

proposition

that

efficacious

treatment'

544

"doctor's

stitching

the

a

stump

F.2d

U.S.

of

choosing

throwing

may

be
11

away

at

(2d Cir.

n.10

(quoting

1974),

for the

the

'easier

the

prisoner's

attributable

to

and
ear

less
and

'deliberate

indifference . . . rather

judgment'"
Motion

(omission

to

Dismiss

than

in

the

an

exercise

original)).

Complaint

of

professional

Accordingly,

for

failure

to

Caldwell's

state

a

claim

the

reviewing

court

was

violated on the

will be denied.

D.

Qualified Immunity

"When

qualified

should usually

facts

immunity

first

alleged,

F.3d

261,

and

264

then

736,

739

(4th

U.S.

223,

236

(2009)

set

forth

[in

Saucier

(first

it

alteration

qualified

immunity

jurisprudence

determine

Cir.

Cir.

2012)

2009));

("[W]e

should
in

is

governing

right

whether

that

right

LeSueur-Richmond Slate Corp.

(4th

F.3d

appropriate,

asserted,

ask whether the

'clearly established.'"
666

is

v.

see

553

longer

that,
U.S.

be

original}).

limited

to

v.

v Fehrer,
589

Callahan,

v.

Smith,

555

while

the

194

regarded

as

sequence

(2001)]

Caldwell's

a

qualified

Smith

Pearson

conclude

Katz,

no

(citing

recitation

immunity.

was

is

often

mandatory."

assertion

of

As

of

the

general

noted

above,

Daniels has adequately alleged a violation of his constitutional
right

to

adequate

authority

right

cited

was

above,

not

clearly

Fredericksburg,

Va.

Feb.

medical

22,

No.

2011)

care.

Caldwell

Furthermore,
fails

established.

3:09CV63,

2011

WL

to

in

light

demonstrate

See

Allen

782039,

at

v.
*11

of

the

that

the

City
n.5

of

(E.D.

(discussing the methodology for briefing the
12

defense of qualified immunity).

Accordingly,

Daniels's Motion

to Dismiss based upon qualified immunity will be denied.
IV.

The Motion to Dismiss
part and denied in part.

CONCLUSION

(Docket No.

19)

will be granted in

Daniels's claim for injunctive relief

will be dismissed as moot.

Daniels has moved for reconsideration of the order denying
his

motion

for

appointed in

§

appointment

1983

cases

of

counsel.

unless

issues or exceptional circumstances.
App'x

164,

166

(4th

Cir.

2001)

the

Counsel

need

not

case presents

See Fowler v.

(citations

omitted).

be

complex

Lee,

18 F.

At

this

juncture, this action presents no complex issues or exceptional
circumstances.

Accordingly,

Daniel's

"MOTION

RECONSIDERATION FOR THE APPOINTMENT OF COUNSEL"

(Docket No.

FOR
32)

will be denied.

Any party wishing to file a dispositive motion,

must do so

within sixty (60) days of the date of entry hereof.
The

Clerk

is

directed

to

send

a copy

of

the

Memorandum

Opinion to Daniels and counsel of record.

Is/

&Lf_

Robert E. Payne
Senior United States District Judge

Date: January Jf_, 2013
Richmond, Virginia
13