Johnson v. Porter et al

Filing 37

MEMORANDUM OPINION. See for complete details. Signed by District Judge James R. Spencer on 06/09/2016. Clerk mailed copy to pro se Plaintiff. (nbrow)

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

JUN - 9 20!6

CLIFTON EUGENE JOHNSON,
CLERK, U.S. DISTRICT COURT
RICHMOND. VA

Plaintiff,

v.

Civil Action No. 3:15CV100

NURSE PORTER,
Defendant.

MEMORANDUM OPINION
Clifton Eugene Johnson, a Virginia inmate proceeding prose and informa pauperis, filed
this 42 U.S.C. § 1983 action. 1 In his Particularized Complaint ("Complaint," ECF No. 19),
Johnson contends that Defendant Nurse Porter denied him adequate medical care during his
incarceration in the Riverside Regional Jail ("RRJ"). The matter is before the Court on the
Motion to Dismiss filed by Defendant Porter. (ECF No. 27.) Johnson has responded. For the
reasons stated below, the Court will GRANT Defendant Porter's 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
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

1 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.

(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, 7 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, therefore, 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); Iodice v. United States, 289 F.3d 270, 281 (4th

Cir. 2002)). Lastly, while the Court liberally construes prose complaints, Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua sponte developing
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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); Beaudet! v. City
ofHampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

II.

SUMMARY OF ALLEGATIONS

In his Complaint, Johnson alleges that Defendant Porter denied him adequate medical
care, in violation of the Eighth Amendment, 2 when she failed to check his blood sugar on one
occasion on December 21, 2014. Johnson alleges: 3
At 8:00 p.m. on 12-21-2014, it was announced diabetic call. ... When the
Pod Officer Jarman left out he came back [and] I told him I need to go, so he took
me out his self because he knows I go every night. I told him it's low because the
last time I checked it at 4:00 PM it was high, 443, [and] I took 14 units regular
which is a fast reaction. When I got up front to the unit control where the diabetic
call was being held, Nurse Porter said I was not on her list at night. I tell her that
Dr. Stairs had change[d] me to 4 times a day on 10-19-14 .... Sgt Armistead
overheard the conversation and told her that Mr. Johnson comes out every night, I
know he's on the list to get his shot or check. Ms. Porter still said I only get
check twice a day. She still deprived me of medical attention. I know my sugar
was low because I took 14 units of regular 4 hours ago and I was shaking,
sweating, and I was weak. . . . She also stated that she has to go by what's in the
computer system....
On December 22, 2014, I went to the diabetic call at 5:30 a.m. I ask Nurse
manning to give me a copy of my medical sheet to show how many times I get
check[ed] and she gave me a copy and I have it showing 4 times daily, 5:30 a.m.,
10:00 a.m., 4 p.m., 8 p.m. by Dr. Stairs ....
By me being a[n] insulin dependent diabetic, I should never be denied to
because of my health. That's cruel and unusual punishment. Since I been here, I
always get check at least 3 times daily, never twice.
(Compl. 1-2.) Johnson fails to identify what reliefhe seeks.

2

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const. amend. VIII.
3

The Court employs the pagination assigned to the Complaint by the CM/ECF docketing
system. The Court corrects the punctuation, spelling, capitalization, and adds paragraph
formatting in the quotations from the Complaint.
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III.

ANALYSIS

To allege 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)). With respect to the denial of adequate medical care, "a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical needs."
Estelle v. Gamble, 429 U.S. 97, 106 (1976). 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."' lko v. Shreve, 535 F.3d 225, 241
(4th Cir. 2008) (quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)).
In the context of delayed medical care, the objective-prong analysis does not end there.
In addition to demonstrating that a medical need that was objectively serious, a plaintiff must
also establish that the delay in the provision of medical care "'resulted in substantial harm."'
Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Oxendine v. Kaplan, 241 F.3d 1272,

1276 (10th Cir. 2001)); see Webb v. Hamidullah, 281 F. App'x 159, 165 (4th Cir. 2008). "[T]he
substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or
considerable pain." Shabazz v. Prison Health Servs., Inc., No. 3:10CV190, 2012 WL 442270, at
*5 (E.D. Va. 2012) (quoting Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001)).
The subjective prong requires the plaintiff to allege facts that indicate a particular
defendant acted with deliberate indifference. 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)).
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[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 teaches "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 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 a
plaintiff to 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 (I Ith Cir. 1986)). Absent
exceptional circumstances, an inmate's disagreement with medical personnel with respect to a
course of treatment is insufficient to state a cognizable constitutional claim, much less to
demonstrate deliberate indifference. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)
(citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970)). 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
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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).
While Johnson fails to articulate precisely in his Complaint what "check" Defendant
Porter denied him, from his Response to the Motion to Dismiss, the Court discerns that he
believes that Defendant Porter denied him an 8:30 p.m. blood sugar level check for his diabetes.
Johnson argues that the medical department was supposed to check his blood sugar level four
times a day, but that Nurse Porter indicated to Porter that he was not on her list for the evening.
Johnson fails to allege facts to satisfy the objective prong of the Eighth Amendment.
First, while diabetes and the failure to treat that condition certainly could result in sufficiently
serious harm under the Eighth Amendment, Johnson fails to allege any such injury here. To the
contrary, Johnson does not allege facts indicating that Defendant Porter failed to provide him any
treatment for his diabetes. Instead, he argues that she failed to check his blood sugar level.
Johnson fails to allege facts indicating that he suffered any injury, much less a serious or
significant physical or emotional injury, from Defendant Porter's failure to check his blood sugar
on one occasion at 8:30 p.m. on December 21, 2014. See Strickler, 989 F.2d at 1381. In his
Complaint, Johnson alleges that prior to the 8:30 p.m. blood sugar check, he "was shaking,
sweating and [he] was weak." (Compl. 1.) However, in his Response, Johnson explains:
Earlier that day at 4 p.m. my blood sugar level was a 443, which is
extremely high. I almost could've [gone] into a diabetic coma. Which I believe
is a life threatening situation. At 4 p.m., I took 14 units of regular units of insulin.
Which made me bottom out quickly. That's why I was shaking and sweating
convulsively. . . . I had nothing to eat at that time, so I had to wait until 8 p.m. for
diabetic call to get my snack bag from Officer Sgt. Armstead.

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(Resp. 2, ECF No. 29.) Thus, Johnson's allegations of injury derive from the treatment for his
high blood sugar and his receipt of insulin four hours earlier, and, apparently, his need to eat to
raise his blood sugar, not from any action or inaction of Defendant Porter. See, e.g., Campbell v.
Powers, No. 4:07-3972-HFF-TER, 2009 WL 2614936, at *6 (D.S.C. Aug. 25, 2009) (treating

low blood sugar by providing food or glucose). Johnson's allegation that he "almost could've
gone into a diabetic coma" is purely speculation and not an event that came to fruition, and also
relates to his medical treatment earlier in the day, not from any inaction of Defendant Porter.
Johnson also alleges no injury from the delay in having his blood sugar checked. Instead,
Johnson states that he had his blood sugar level checked the following morning at 5:30 a.m. and
he does not allege that he suffered any adverse effects from the approximately twelve-hour
delay. See Mata, 427 F.3d at 751. Thus, he fails to allege facts indicating that the delay in the
blood sugar check itself caused him substantial harm. See Webb, 281 F. App'x at 166. Because
Johnson alleges no injury from Defendant Porter's actions, he fails to satisfy the objective prong
of the Eighth Amendment. Cf Arbuckle v. Ahern, No. C-12-3076 EMC (pr), 2014 WL
2038316, at *4 (N.D. Cal. May 16, 2014) (finding no deliberate indifference when inmate failed
to demonstrate any harm from four missed blood sugar checks). Accordingly, Johnson fails to
state an Eighth Amendment claim for relief.
IV.

CONCLUSION

Accordingly, the Motion to Dismiss (ECF No. 27) will be GRANTED. Johnson's claim
and the action will be DISMISSED WITHOUT PREJUDICE.
An appropriate Order will accompany this Memorandum Opinion.

Isl
Date: /,-,_I b
Richmond, Virginia

James R. Spencer
Senior U.S. District Judge

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