Bethel v. Smith et al

Filing 26

MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Henry E. Hudson on 05/12/2015. (ccol, )

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

may I 3 2015

[)
'J

RAYMOND V. BETHEL, JR.,
clerk U.S. DiSTniCT COURl

^

RICHMONaVA____

Plaintiff,
Civil Action No. 3:13CV692-HEH

V.

PAMELA SMITH, etal.
Defendants.
MEMORANDUM OPINION

(Granting Motion to Dismiss 42 U.S.C. § 1983 Action)

Raymond V. Bethel, a Virginia inmate proceeding pro se and informa pauperis,

filed this 42 U.S.C. § 1983 action.' The matter is before the Court on the Motion to
Dismiss (ECF No. 19) filed bythe only remaining Defendant Pamela Smith.^ Bethel has
not responded. For the reasons stated below, the Court will grant to the Motion to
Dismiss.
I.

STANDARD FOR MOTION TO DISMISS

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or

' The 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.

^By Memorandum Order (ECF No. 16) entered October 16,2014, the Court dismissed
Defendant Medical Staff at the Norfolk Sheriffs Office.

the applicability of defenses." Republican Party ofN.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 plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the
light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d 1130, 1134 (4th

Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual

allegations, however, and "a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than conclusions, are not entitled

to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

The Federal Rules of Civil Procedure "require[ ] only 'a short and plain statement
of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant

fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp.
V. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v.

Gibson, 355 U.S. 41,47 (1957)). Plaintiffs cannot satisfy this standard with complaints
containing only "labels and conclusions" or a "formulaic recitation of the elements of a

cause of action." Id. (citations omitted). Instead, a plaintiff must allege facts sufficient

"to raise a right to relief above the speculative level," id. (citation omitted), stating a
claim that is "plausible on its face," id. at 570, rather than merely "conceivable." Id. "A

claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at 556). In order for a claim or
complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts

sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours

& Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d
193, 213 (4th Cir. 2002); see also lodice v. United States, 289 F.3d 270,281 (4th

Cir. 2002)). Lastly, while the Court liberally construes pro se complaints, Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua

sponte developing statutory and constitutional claims the inmate failed to clearly raise on
the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997)
(Luttig, J., concurring); see also Beaudett v. City ofHampton, 775 F.2d 1274, 1278 (4th
Cir. 1985).
II.

SUMMARY OF ALLEGATIONS

In a rambling Complaint, Bethel alleges that Pamela Smith, Health Services

Administrator at the Chesapeake Jail,^ denied him eyeglasses in violation ofthe Eighth
Amendment.'' Bethel alleges that he was imprisoned in the Chesapeake Correctional
Center ("CCC") from March 4, 2013 until April 23,2013, and then again from June 7,

2013 until September 29,2013 which is the date he filed the Complaint. (Compl. at 11.)^

In reference to his incarceration in the CCC,^ he states: "When I first got to Chesapeake, I
^An attachment to Bethel's Complaint indicates that Pamela Smith works atthe Chesapeake
Correctional Center. (Compl. at 5.)

^"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." U.S. Const, amend. VIII.

^The Court employs the pagination assigned the Complaint by the CM/ECF docketing system.
The Court corrects the capitalization and punctuation in the quotations from Bethel's Complaint.

^Bethel's Complaint first contains a running narrative of his attempts to obtain glasses or
contacts as he was moved between the Norfolk City Jail, the Chesapeake Correctional Center,
and the Virginia Department of Corrections. (Compl. at 4.) Bethel then provides separate
sections of allegations pertaining to his attempts to obtain glasses while he was incarcerated in
the Chesapeake Correctional Center and the Norfolk City Jail. {See Compl. at 6-10.) The
remaining Defendant works at the Chesapeake Correctional Center and Bethel fails to allege that

was taken outside for an eye exam

{Id. at 4.) Bethel then sets forth the factual

underpinnings of his Eight Amendment claim:'
I was having irritation with my right eye (I was told my eye was
infected at another jail, which was why I was transferred here). On the day
that 1 was seen, the staff noted no redness, no drainage and MD seen eye
assessment. I was charged 10.00 for that sick call on 3-8-2013. I was taken
to outside medical by Chesapeake on 3-19-13 and was prescribed glasses as
well as contacts. That same evening, I put in a request to find out the price
of that visit so I could know what glasses would cost me but received no
response (I was given some contacts at appointment with solution, which
are the same ones I still have now). I put in another request on 4-11-13
asking to have my glasses prescription filled and once again received no
response. I was transferred to the (4-23-13) Department of Corrections
when I had not been sentenced here and I had no D.O.C. time to serve.

While at the D.O.C., I put in a request on 5-15-13 and to get glasses or
contacts and was requested to put in a sick call on 5-23-13 to get my eyes
checked, which I did. On 6-5-13, the day that my glasses was [sic]
supposed to be made but 1 did not know because on 6-7-13 I was released
from the D.O.C. The reason was I had no time to serve. I had been there

for approximately five weeks and was r^ close to having the glasses that I
needed. Instead I was returned to Chesapeake.
I put in a request addressed ATTN: Pam Smith (Medical Director)
explaining about the glasses that was supposed to be ordered at the D.O.C.
on 6-5-13 and can she please follow up so I can get my glasses. I was
informed by staff that I would need to write Powhatan myself and have the
glasses sent here. I do not know if they were ordered because I was
brought to Chesapeake on 5-31-13 for overnight court and taken back on 64-13, then released on 6-7-13. I was not in the system to get or have my
glasses ordered.

On 7-28-13, I put in a grievance and thought an understanding had
been reached to release my prescriptions to my family to either get my
glasses or contacts filled and brought to me ... . The staff here released
my glasses script, but I cannot get glasses without me being there in person.
Myself and my family both made inquiries and on 8-23-13, I was told by
the Pod Deputy that per Pam Smith, I would need to submit another request
asking for my contact script released to me. Which I did again and received
no response. Since then I have inquired from several staff and keep getting
the same response, "I will check and get back to you," which never

she had any involvement in his complaints related to the Norfolk City Jail. Accordingly, when
possible, the Court omits Bethel's allegations that occurred at other facilities.
The Court inserts paragraph breaks to the quotations from Bethel's Complaint.
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happens. I put in a request on 9-17-13, but I expect the same outcome. At
this point, I would like to have my glasses filled, which I would have at the
D.O.C. but I was sent back here because I should not have been there. Like

I stated earlier, I am now sentenced so why can't the state get me the
glasses I need .... I mean, this is my eyesight we are talking about. . . .
All I want is some glasses, I have been wearing these contacts, cleaning
them periodically since March. It's time for a new or GLASSES.
(Compl. at 6-7.) Bethel claims that he is "currently having problems from wearing these
contacts and it will only get worse if nothing is done." {Id. at 4.) Bethel demands

damages and injunctive relief by "providing [him the ability] to get glasses from the
state." {Id. at 11.) On February 19, 2014, Bethel notified the Court (ECF No. 14) that as

of February 13, 2014 he was no longer incarcerated.
III.

A.

ANALYSIS

Request for Injunctive Relief is Moot

Bethel's claim against Defendant Smith arose during his incarceration in the CCC.
Bethel, however, notified the Court that he was no longer incarcerated in the CCC as of
February 13, 2014. "[A]s a general rule, a prisoner's transfer or release from a particular

prison moots his claims for injunctive and declaratory relief with respect to his
incarceration there." Rendelman v. Rome, 569 F .3d 182, 186 (4th Cir. 2009) (citing
Incumaa v. OzminU 507 F.3d 281, 286-87 (4th Cir. 2007); Williams v. Griffin, 952 F.2d

820, 823 (4th Cir. 1991); Taylor v. Rogers, 781 F.2d 1047, 1048 n.l (4th Cir. 1986)).

Bethel fails to allege facts that suggest his claim for injunctive relief against Defendant
Smith remains viable. Accordingly, Bethel's request for injunctive relief will be
dismissed as moot.

B.

Eighth Amendment

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 Cir. 1998).
To make out an Eighth Amendment claim, an inmate must allege facts that

indicate "(1) that objectively the deprivation suffered or harm inflicted was 'sufficiently

serious,' and (2) that subjectively the prison officials acted with a 'sufficiently culpable
state of mind.'" Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998) (quoting Wilson
V. Seiter, 501 U.S. 294, 298 (1991)). Under the objective prong of the inquiry, an inmate
must allege facts that suggest that the deprivation complained of was extreme and
amounted to more than the '"routine discomfort'" that is "'part of the penalty that

criminal offenders pay for their offenses against society.'" Strickler v. Waters, 989 F.2d
1375, 1380 n.3 (4th Cir. 1993) {(\woimg Hudson v. McMillian, 503 U.S. 1, 9 (1992)). "In

order to demonstrate such an extreme deprivation, a prisoner must allege 'a serious or

significant physical or emotional injury resuhing fi-om the challenged conditions.'"
De 'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (quoting Strickler, 989 F.2d at
1381).

The subjective prong of the inquiry turns on whether a plaintiff alleges facts
indicating a particular defendant actually knew of and disregarded a substantial risk of

serious harm to his person. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).

"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) (citing Estelle v. Gamble,
429 U.S. 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 that a substantial risk of serious harm exists, and he must also draw
the inference.

Farmer, 511 U.S. at 837. Farmer further clarifies the subjective inquiiy, stating "that

general knowledge of facts creating a substantial risk of harm is not enough. The prison
official must also draw the inference between those general facts and the specific risk of
harm confronting the inmate." Quinones, 145 F.3d at 168 (citing Farmer, 511 U.S. at
837); see also Rich v. Bruce, 129 F.3d 336, 338 (4th Cir. 1997) (stating same). Thus, to

survive a motion to dismiss, the deliberate indifference standard requires that a plaintiff

assert facts sufficient to form an inference 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.'" Parrish ex rel. Lee

V. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (quoting Rich, 129 F.3d at 340 n.2).
"To establish that a health care provider's actions constitute deliberate indifference

to a serious medical need, the treatment must be so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to fundamental fairness."

Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990) (citing Rogers v. Evans, 792 F.2d
1052, 1058 (11th Cir. 1986). Furthermore, in evaluating a prisoner's complaint regarding
medical care, 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. Hudson
V. McMillian, 503 U.S. 1, 9 (1992) (citing Estelle, 429 U.S. at 103-04). In this regard,
the right to medical treatment is limited to that treatment which is medically necessary
and not to "that which may be considered merely desirable." Bowring v. Godwin, 551

F.2d 44, 48 (4th Cir. 1977). Moreover, "[i]t may not be seriously contended that any
prisoner detained for however short a period is entitled to have all his needed elective
medical care performed while in custody ...." Kersh v. Bounds, 501 F.2d 585, 589 (4th
Cir. 1974).

Bethel fails to allege facts to satisfy either the objective or subjective prongs of an
Eighth Amendment claim. First, while the denial of prescription glasses may result in
sufficiently serious harm under the Eighth Amendment, Bethel fails to allege any such

injury here. See, e.g., Tormasiv. Hayman, 452 F. App'x 203, 206 (3d Cir. 2011) (finding
optometiy needs "serious" when inmate experienced significantly blurred vision

"resulting in dizziness and imbalance that caused him to fall and walk into objects"
including a fall that resulted in a broken jaw); Koehl v. Dalsheim, 85 F.3d 86, 87-88 (2d
Cir. 1996) (finding that prisoner requiring "specially prescribed, tinted eye-glasses" to
prevent double vision and loss of depth perception asserted sufficiently serious medical
need when confiscation of his eyeglasses rendered his left eye "almost sightless" and
caused the eye to shift into the comer of its socket); Gray v. Stolle, No. 3:11CV546, 2013
WL 4430919, at *3 (E.D. Va. Aug. 6, 2013) (holding that inmate who was denied glasses

stated a viable Eighth Amendment claim because he experienced "headaches and blurry
vision" and had fallen down stairs and fi-om the top bunk). To the contrary. Bethel fails

to allege that he sustained any injury, much less a serious or significant physical or
emotional injury from any action or inaction of Defendant Smith. See Strickler, 989 F.2d
at 1381.

While Bethel desired to receive a pair of glasses or new contacts, he fails to allege
any facts which indicate that not having glasses caused him to suffer serious or

substantial harm. See id.; cf. Thomas v. Owens, 345 F. App'x 892, 896 (5th Cir. 2009)
(citations omitted) (finding inmate's complaint that he '"cannot see well.'... establishes

no substantial harm or thatofficials had a subjective awareness of such harm" by denying
him glasses); see Harris v. Townley, No. 7:10CV00035, 2010 WL 373996, at *1-2 (W.D.
Va. Jan. 28, 2010) (explaining that having a prescription for glasses alone fails to

demonstrate that "being without his prescription glasses for a time places him at any

significant risk ofphysical harm").^ At most, he states that he is "currently experiencing
problems from wearing these contacts and it will only get worse if nothing is done."

(Compl. at 4.) Bethel's complaint of mere "problems" with his contacts fails to allege "a
serious or significant physical or emotional injury" resulting from notreceiving glasses or
new contacts. De 'Lonta, 330 F.3d at 634 (internal quotation marks omitted) (citation

omitted). Forthis reason alone. Bethel's Eighth Amendment claims against Defendant
Smith fails.

Additionally, Bethel fails to allege facts supporting the inferencethat Defendant
Smith, the Health Services Administrator, knew of and disregarded an excessive risk to
While Bethel initially alleged that he had an eye infection when he was transferred to the CCC,
he also statesthat he was seen my medical for the eye infection. (Compl. at 6.) Moreover,
Bethel alleges no involvement by DefendantSmith with respect to the eye infection.

Bethel's health through his requests for eyeglasses or contacts. See Farmer, 511 U.S. at

837. Bethel states that he filed requests to unknown persons asking to have his glasses
prescription filled. {See Compl. at 6.) Bethel further alleges that on June 13, 2013, he

put in a request with Defendant Smith "explaining about the glasses that weresupposed
to be ordered at the D.O.C. on 6-15-13 and [asking that] she please follow up." {Id.)
Unnamed staff told Bethel he would need to contact the VDOC. {Id. at 6-7.) Bethel also

attaches a grievance form dated September 19, 2013, demonstrating that he complained
that he was "currently wearing [his] last pair of contacts that [he has] had for a while."

{Id. at 5.) Lastly, Bethel stated that "I have poor eye sight without wearing corrective
lenses / and or contact lenses. Without them I cannot see at all." {Id.) Defendant Smith

responded to his request, stating: "You have been instructed several times on howto get
your glasses, and your family has been given your prescription 3 times. You are now in

charge or required to notify medical once you have arranged for payment and we will set
up your appointment." {Id.)

Bethel fails to allege facts suggesting "that the communication, in its context and
manner of transmission, gave [Defendant Smith] sufficient notice to alert him or her to

'an excessive risk to inmate health or safety.'" Vance v. Peters^ 97 F,3d 987, 993 (7th

Cir. 1996) (quotingFarmer, 511 U.S. at 837). Bethel makes no allegation that based on
his general complaints that he desired glasses or new contacts, Defendant Smith "knew of

a constitutional deprivation and approved it, turned a blind eye to it, failed to remedy it,

or in some way personally participated." Id. at 994 (citing Gentry v. Duckworth, 65 F.3d
555, 561 (7th Cir. 1995)). Bethel stated that without contacts or eyeglasses he "cannot
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see at all" but also indicated that he was in possession of and using contacts at the time.
(Compl. at 6.) Bethel's allegations, namely that he possessed contacts to wear, but

desired new contacts or a pair of eyeglasses, fall well short of permitting the conclusion
that his complaints placed Defendant Smith on sufficient notice of an excessive risk to

Bethel's health or safety. See id As such, Bethel's limited factual allegations against
Defendant Smith fail to "produce an inference of liability strong enough to nudge the

plaintiffs claims 'across the line from conceivable to plausible.'" Nemet Chevrolet, Ltd.
V. Consumeraffairs.com, Inc., 591 F,3d 250, 256 (4th Cir. 2009) (quoting Iqbal, 556 U.S.
at 683).

Accordingly, the Motion to Dismiss (ECF No 19) will be granted. Bethel's claims
and the action will be dismissed. Defendant's Motion for Waiver of Oral Argument
(ECF No. 25) will be denied as moot.

An appropriate Order will accompany this Memorandum Opinion.

/s/

Henry E. Hudson

ate; jl^t. I

Date; WUkK

United States District Judge

Richmond, Virginia

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