Harper v. Gore et al
Filing
38
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 11/09/2016. Copy mailed to Plaintiff. (walk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
:NQV I 0 20l6
LINWOOD HARPER,
CLERK, U.S. DISTRICT COURT
RICHMOND VA
Plaintiff,
Civil Action No. 3:1SCV303
v.
DR. GORE, et al.,
Defendants.
MEMORANDUM OPINION
Linwood Harper, a Virginia inmate proceeding pro se and in
forma pauperis,
Order
Memorandum
directed
No .
1
o,
has
Harper
at
Complaint.
2.)
filed this 42 U.S.C.
entered
to
on
submit
a
Harper
has
(ECF No. 14.)
18,
2015,
Particularized
submitted
the
By
Court
Complaint.
his
Particularized
filed by Defendants Nurse Jones,
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.
(ECF
The matter is before the Court on the
Motion to Dismiss (ECF No. 31)
1
November
action. 1
1983
§
Nurse Hamlin,
and Dr.
Order of August 22,
why
Defendants
Gore, 2 as well as the Court's Memorandum
2016, directing Harper to show cause as to
Quintana
and
Dugger
should
not
be
dismissed
without prejudice for failure to serve them in a timely manner
Despite receiving Roseboro 3 notice, Harper has not
(ECF No. 36) .
responded
below,
to
the
against
the
Motion
Court
will
Quintana
and
to Dismiss.
dismiss
Williams
For
without
pursuant
the
reasons
prejudice
to
Rule
all
4 (m)
stated
claims
of
the
The Court will also grant in
Federal Rules of Civil Procedure.
part and deny in part the Motion to Dismiss.
I.
Under
ninety
(90)
FAILURE TO SERVE QUINTANA AND DUGGER
Federal
Rule
of
Civil
days from March 23,
Procedure
4 (m), 4
Harper had
2016 to serve the Defendants.
2
Nurse Jones is a Registered Nurse at Greensville
Correctional Center ( "GCC") .
Nurse Hamlin is the Head Nurse at
GCC. Dr. Gore is the Medical Director at GCC.
3
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
4
Rule 4(m) provides, in pertinent part:
If a defendant is not served within 90 days after
the complaint is filed, the court-on motion or on its
own after notice to the plaintiff-must dismiss the
action without prejudice against that defendant or
order that
service
be made
within a
specified time.
But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an
appropriate period.
Fed. R. Civ. P. 4(m).
2
In his Notice of Appearance,
counsel for Matheny,
Crowell,
and
Lowe stated that he was unable to enter an appearance or waive
service of process for Quintana "because there are no current or
former
Greensville
Correctional
No. 21,
1
at
Center
Counsel
n.1.)
Corrections
of
Department
Virginia
with
was
that
also
employees
last
name."
unable
to
enter
at
(ECF
an
appearance or waive service of process for Dugger,
"who [was] no
longer
Corrections."
employed
by
the
Virginia
Department
of
(Id.)
By Memorandum Order entered on August 22,
2016,
the Court
directed Harper "to show good cause why the action should not be
dismissed without prejudice"
No. 36, at 1.)
as
to Quintana and Dugger.
(ECF
Harper has responded, stating in pertinent part:
1.
On or about April, 2016 the defendants Dr.
Gore, et al. were served with a copy of said Complaint
in the above styled matter.
2.
Plaintiff now respectfully submits to this
Court that because the defendants in this matter were
served by Quintana and Dugger, and within the required
time frame, that the plaintiff has complied and met
the required rules under Federal Rules of Civil
Procedure in this matter and therefore, plaintiff's
action pending in this Court should not be dismissed.
(ECF No. 37, at 1 (spelling and grammar corrected).)
Rule 4 (m)
requires
that,
absent a
showing of good cause,
the Court must dismiss without prejudice any complaint in which
the plaintiff fails
90-day period.
to serve the defendant within the allotted
Fed. R.
Civ. P. 4(m).
3
Courts within the United
States Court of Appeals for the Fourth Circuit found good cause
to extend the
90-day time period when the
"'reasonable,
diligent
defendant.'"
5145334,
Access
efforts
to
ef feet
Venable v. Dep' t of Corr.,
at *1
(E.D. Va.
Floors,
Inc.,
Feb.
31 F.
7,
2007)
Supp.
plaintiff has made
service
No. 3: 05cv821,
on
the
2007 WL
(quoting Hammad v. Tate
2d 524,
528
{D.
Md.
1999)).
Neither pro se status nor incarceration constitutes good cause.
Sewraz v. Long, No. 3:08CV100, 2012 WL 214085, at *1-2 (E.D. Va.
Jan. 24, 2012)
(citing cases).
Contrary to
Harper's
assertion,
Harper's response
not been served.
Quintana and Dugger have
fails
to demonstrate good
cause for his failure to serve Quintana and Dugger in a timely
manner.
Accordingly,
Harper's
claims
against
Quintana
and
Dugger will be dismissed without prejudice pursuant to Rule 4(m)
of the Federal Rules of Civil Procedure.
II.
"A
motion
sufficiency of
STANDARD FOR MOTION TO DISMISS
to
a
dismiss
complaint;
contests surrounding the
under
importantly,
facts,
applicability of defenses."
Rule
12 (b) ( 6)
it
does
tests
not
the merits of a claim,
the
resolve
or the
Republican Party of N. C. v. Martin,
980 F. 2d 943, 952 (4th Cir. 1992)
(citing SA Charles A. Wright
&
Arthur R. Miller, Federal Practice and Procedure§ 1356 (1990}}.
In considering a motion to dismiss for failure to state a claim,
4
a plaintiff's well-pleaded allegations are taken as true and the
complaint
is
plaintiff.
Cir.
viewed
in
the
most
favorable
to
the
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
1993) ; see also Martin,
applies
light
only
to
factual
considering
a
identifying
pleadings
conclusions,
motion
are
980 F. 2d at 952.
allegations,
to
dismiss
that,
not
entitled
to
however,
can
because
This principle
are
"a
to
choose
they
the
and
begin
no
assumption
court
more
of
by
than
truth."
Ashcroft v. Igbal, 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
notice of what the .
claim is and the grounds upon which it
rests.'"
Bell Atl.
Corp.
v.
Twombly,
(second alteration in original)
U.S.
41,
47
(1957)).
'give
550
the defendant fair
u. s. 544, 555 {2007)
{quoting Conley v.
Gibson,
355
Plaintiffs cannot satisfy this standard
with complaints containing only "labels and conclusions"
"formulaic recitation of
the
Id.
Instead, a plaintiff must allege facts
(citations omitted).
sufficient
level,"
"to raise a
id.
"plausible
(citation
on
its
"conceivable."
Id.
right
to relief
omitted),
face,"
"A
elements of a
or a
id.
above
stating
at
570,
cause of action."
a
the speculative
claim
rather
that
than
is
merely
claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
5
the reasonable inference
Iqbal,
misconduct alleged."
Corp.,
that
for
556 U.S.
is liable for the
at 678
(citing Bell Atl.
In order for a claim or complaint to
550 U.S. at 556).
survive dismissal
the defendant
failure
to state a
claim,
the plaintiff
must "allege facts sufficient to state all the elements of
or] her claim."
[his
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
construes
1151
and
(4th Cir. 2002}}.
pro se
(4th Cir.
develop,
that
the
inmate
complaint.
1997)
complaints,
1978),
sua
Lastly,
while
Gordon v.
the Court liberally
Leeke,
574
F.2d 1147,
it will not act as the inmate's advocate
sponte,
failed
statutory
to
See Brock v.
and
clearly
raise
Carroll,
constitutional
on
the
107 F.3d 241,
face
243
claims
of
his
(4th Cir.
(Luttig, J., concurring); Beaudett v. City of Hampton, 775
F.2d 1274, 1278 (4th Cir. 1985).
III. SUMMARY OF PERTINENT ALLEGATIONS
On June
25,
2013,
GCC.
(Part.
Compl.
pills
"that he was
5,
not
Harper participated
14.) 5
ECF No.
familiar
5
in
"pill call"
at
Nurse Jones gave Harper
with."
(Id.)
According
to
The Court utilizes the pagination assigned to the
Particularized Complaint by the CM/ECF docketing system.
The
Court corrects the spacing, capitalization, and punctuation in
quotations from the Particularized Complaint.
The Court omits
those allegations that do not pertain to Defendants Gore,
Hamlin, and Jones.
6
Harper,
wrong
he
told Nurse
prescription
drugs
(Id.)
medication."
Jones
"that
she
ha [d]
given him
take
and
that
it
to
Nurse Jones
replied,
was
night,
Harper
(Id.)
Center."
"was
rushed
to
not
his
"'Harper it's your
meds take them,'" so Harper took the medication.
that
[the]
Southside
(Id.)
Regional
Later
Medical
His pulse and sugar were "very low," he had an
irregular heartbeat,
and
was
"showing
signs
of
an overdose.
11
(Id.)
On July 1,
him
2013,
Nurse Hamlin "interviewed Harper to let
know
Nurse
Jones
medication
that
and
that
offered to him if
he
did
indeed
the
right
had
[it was]
not
give
to
him
the
ref use
[his]
medication [.]
(internal quotation marks omitted) . )
On April 3,
wrong
medication
(Id. at 6
11
2014,
Nurse
Hamlin told Harper "that he was being monitored and prescribed
Tylenol
x
14
commissary.
days
(Id.
thereafter,"
which
Harper
could
(internal quotation marks omitted).)
"explained to Nurse
Hamlin
that
he
needed more
buy
from
Harper
treatment and
wanted to see a specialist [for] dizziness, headaches, breathing
problems .
.
. and chest pains . "
(Id. )
However, he "was .
ignored about the treatment for a specialist."
On February 18,
Gore.
(Id. at 8.)
dizziness
(Id.
and
2014,
(Id.)
Harper had an appointment with Dr.
Harper "explained to Dr. Gore the headaches,
shortness
of
breathing
(internal quotation marks omitted))
7
[during]
conversations."
Harper suggested that
Dr.
Gore send Harper "to see a
[and]
{Id.}
MRI done. 11
Dr.
specialist to have a CAT scan
Gore told Harper that "she felt
Dr.
that seeing a specialist was not necessary."
"told Harper you are being monitored;
complaint,
Dr.
Gore
since you have written a
you will be scheduled to see a
specialist. 11
Gore also mentioned that Harper had been offered "Tylenol
until
further
transferred
to
notice."
Lawrenceville
has not yet seen a
Particularized
Harper
Correctional
(Id.)
specialist.
damages from all Defendants.
Harper's
{Id.)
was
Center
subsequently
{"LVCC"}
and
Harper seeks monetary
(Id. at 9-10.}
Complaint
raises
the
following
claims for relief with respect to Nurse Jones, Nurse Hamlin, and
Dr. Gore:
Claim One:
Nurse Jones (a) acted negligently and (b)
violated Harper's rights under the Eighth
Amendment 6 by providing Harper the wrong
medication on June 25, 2013.
(Id. at 5.) 7
6
"Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted. 11
u. s.
Const. amend. VIII.
7
Harper also asserts that Nurse Jones, Nurse Hamlin, and
Dr. Gore violated his rights under the Fourteenth Amendment by
demonstrating indifference to his medical needs.
However, "when
a prison official is accused of deliberate indifference to a
serious risk of harm, that claim is properly considered under
the Eighth Amendment."
Lovings v.
Johnson,
No.
Civ .A.
7:05CV000050, 2005 WL 2076535, at *l (W.D. Va. Aug. 25, 2005).
Moreover, to the extent that Harper claims Nurse Jones, Nurse
Hamlin, and Dr. Gore acted negligently, " [a] prison official's
negligence does not violate the due process clause."
Gordon v.
Kidd, 971 F. 2d 1087, 1095 (4th Cir. 1992) (citing Davidson v.
Cannon, 474 U.S. 344, 347 (1986)).
Accordingly, the Court
8
Claim Two:
Nurse Hamlin
(a}
acted negligently,
(b)
violated Harper's rights under the First 8 and
Fourteenth 9 Amendments by "respond [ing] to
Harper's
informal
complaint
in
an
unprofessional manner,"
and
(c)
violated
Harper's rights under the Eighth Amendment
by failing "to take the proper precautions
[for] treating Harper."
(Id. at 6.)
Claim Five:
Dr.
Gore
(a)
acted negligently and
(b)
violated Harper's rights under the Eighth
Amendment by failing to ref er Harper to a
specialist.
(Id. at 8.)
IV.
A.
SECTION 1983 CLAIMS
Eighth Amendment Claims
To state an Eighth Amendment claim,
facts
that
(1)
indicate
that
an inmate must allege
objectively
the
deprivation
suffered or harm inflicted "was 'sufficiently serious, '
that
subjectively
the
prison
officials
'sufficiently culpable state of mind.'"
145 F.3d 164, 167 (4th Cir. 1998)
U.S.
294,
medical
298
care,
(1991)).
"a
acted
Johnson v.
and ( 2)
with
a
Quinones,
(quoting Wilson v. Seiter, 501
With respect to the denial of adequate
prisoner
must
allege
acts
or
omissions
considers Harper's deliberate indifference claim with respect to
Nurse Jones, Nurse Hamlin, and Dr. Gore under the Eighth
Amendment only.
8
speech
"Congress shall make no law . . . abridging the freedom of
,, U.S. Const. amend. I.
9
deprive any person of life, liberty,
"No State shall . .
"
u. S. Const.
or property, without due process of law . .
amend. XIV, § l.
9
sufficiently
harmful
to
/1
serious medical needs.
(1976).
evidence
deliberate
Estelle v.
Gamble,
indifference
429 U.S.
97,
to
106
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.'
Cir. 2008)
Iko v.
/1
Shreve,
535 F.3d 225,
241
(4th
(quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th
Cir. 1999)).
The subjective prong requires the plaintiff to allege facts
that
indicate
indifference.
a
particular
defendant
See Farmer v. Brennan,
"Deliberate indifference
is a
with
511 U.S. 825,
deliberate
837
(1994).
very high standard-a showing of
mere negligence will not meet it.
692, 695 (4th Cir. 1999)
acted
/1
Grayson v.
Peed,
195 F. 3d
{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 teaches "that general knowledge
of facts creating a substantial risk of harm is not enough.
prison
general
official
facts
must
and
the
also
draw
specific
10
the
risk
inference
of
harm
between
The
those
confronting
the
inmate."
837);
Quinones, 145 F. 3d at 168 {citing Farmer,
see
(stating
Rich v.
Bruce,
same).
Thus,
129
to
F.3d
336,
survive
a
338
u. S.
511
(4th Cir.
motion
to
at
1997)
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.'"
rel.
Lee
v.
Cleveland,
372
F.3d
303
294,
Parrish ex
(4th
Cir.
2004)
{quoting Rich, 129 F.3d at 340 n.2).
"To
establish
that
constitute deliberate
the
treatment
excessive as
must
1990)
Cir.
health
indifference
be
care
to a
so grossly
provider's
incompetent,
1986)).
Miltier v. Beorn,
(citing Rogers v.
Absent
Evans,
exceptional
792
actions
serious medical need,
to shock the conscience or to be
fundamental fairness."
Cir.
a
inadequate,
or
intolerable to
896 F.2d 848, 851 {4th
F.2d 1052,
circumstances,
1058
an
(11th
inmate's
disagreement with medical personnel with respect to a course of
treatment is insufficient to state a
claim,
much less
Wright v.
cognizable constitutional
to demonstrate deliberate
Collins,
766
F.2d 841,
428
Gittlemacker
v.
Prasse,
Furthermore,
in
evaluating
a
849
F.2d
indifference.
{4th Cir.
1,
prisoner's
6
( 3d
See
1985)
(citing
Cir.
1970)).
complaint
regarding
medical care, the Court is mindful that "society does not expect
11
that prisoners will have unqualified access to health care" or
to
the
medical
treatment
McMillian,
503 U.S.
103-04).
1,
In this
9
of
their
(1992)
regard,
choosing.
Hudson
v.
429 U.S.
at
treatment
is
(citing Estelle,
the
right
to medical
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).
Here,
Harper
medication
on
has
June
alleged
25,
2013,
Regional Medical Center."
the emergency room,
[he]
2014,
he
after
was
his "pulse
[and]
problems
[and]
allegations,
sufficient
chest
the
facts
Eighth Amendment
Henderson,
196
pains."
with
at
Southside
When he arrived at
in February and April of
(Id.
concludes
respect
claim.
to
wrong
showing signs of an overdose."
lot of dizziness,
Court
F.3d
"rushed
the
sugar w [ere] very low and
Harper further alleges that,
he "was having a
taking
(Part. Compl. 5.)
had irregular heartbeats;
(Id.)
that
to
See
at
that
the
Iko,
846).
headaches,
Given
6.)
Harper
objective
535
F. 3d at
Accordingly,
breathing
the
has
these
alleged
prong
241
of
an
(quoting
Court
will
consider whether Harper has alleged sufficient facts as to each
Defendant with respect to the subjective prong.
1.
In
Nurse Jones
Claim
inadequate
One
(b) ,
Harper
medical
care
by
contends
"giving
12
[the}
that
Jones
wrong
provided
prescription
(Part. Compl. 5.)
drugs" to him.
Jones "that she ha [d]
to
take
and
replied,
that
According to Harper, he told
given him
it was
not
[the]
his
wrong prescription drugs
Jones
medication."
"'Harper it's your meds take them,'" so Harper took the
medication.
(Id.)
Approximately one week later,
Nurse Hamlin
informed Harper that "Nurse Jones did indeed give him the wrong
,,
medication .
Harper,
indicating
[Harper]
(Id. at 6.)
however,
that
Nurse
"does
not
Jones
intentionally
the wrong medication,"
Amendment claim.
allege
any
facts
or
as he must
whatsoever
recklessly
gave
to state an Eighth
Baldwin v. Bell, No. 1:11CV180 (CMH/TRJ), 2012
WL 214915, at *3 (E.D. Va. Jan. 20, 2012}.
Harper also fails to
allege facts suggesting that Nurse Jones gave him the medication
"with knowledge it would cause him harm. "
2002 WL 31180743,
omitted).
medication,
at
Moreover,
[and]
*2
(N.D.
"[t] he
Ill.
fact
was assured by
Sept.
that
Crowley v.
30,
2002)
[Harper]
[Nurse Jones]
. at most amounts to negligence."
Id.
Meyers,
(citation
questioned his
that it was his
(citations omitted) ;
see Williams v. Snyder, No. Civ.A. 01-632-JJF, 2002 WL 32332192,
at
*2
(D.
Del.
Sept.
30,
2002)
administering medication
is
negligence rather than a
§
error
in
providing
the
more
(noting
that
appropriately
1983 action"} .
wrong
"[a]
medication
Here,
to
mistake
in
recoverable
in
Nurse Jones' s
Harper
"only
constitutes negligence, or perhaps malpractice, neither of which
13
become a constitutional violation merely because
prisoner."
Baldwin,
2012 WL 214915, at *3
[Harper]
is a
{citations omitted) .
Harper has failed to allege sufficient facts showing that Nurse
Jones
"subjectively recognized a
Harper
and
"subjectively
substantial
recognized
that
at
F.3d
303
{quoting
Rich,
[her]
actions
to
were
Parrish ex rel . Lee,
'inappropriate in light of that risk. ' "
372
risk of harm"
129
F.3d
at
340
n.2).
Accordingly, Claim One {b) will be dismissed.
2.
In
Nurse Hamlin
Claim
Two
{c),
Harper
faults
"tak [ing] the proper precautions [for]
Compl. 6.)
On April 4,
Nurse
for
treating Harper."
not
(Part.
2014, Nurse Hamlin "told Harper that he
was being monitored and prescribed Tylenol x
Harper could purchase Tylenol
(Id.
Hamlin
from
the
14 days" and that
commissary thereafter.
(internal quotation marks omitted) . )
Harper alleges that
he "explained to Nurse Hamlin that he needed more treatment and
wanted to see a
specialist."
However,
ignored about the treatment for a specialist."
Harper
fails
to
allege
facts
Hamlin knew of and disregarded a
that
at 837.
"was having a
.
"was
(Id.)
indicate
that
Nurse
substantial risk to Harper's
health by not referring him to a specialist.
U.S.
he
See Farmer,
Although Harper indicates that in April 2014,
lot of dizziness,
and chest pains,"
{Part.
14
headaches,
Compl.
6),
511
he
breathing problems
he fails
to allege
that
he
told
Nurse
Thus,
symptoms.
Hamlin
Harper
that
fails
he
to
was
experiencing
allege
sufficient
these
facts
to
suggest that Nurse Hamlin was deliberately indifferent to his
medical needs by failing to refer him to a specialist for those
symptoms.
2006)
See Self
("Matters
medical
Ledoux v.
most,
or
respect
to
condition.
1232
(10th Cir.
fall
within
the
scope
of
such decisions
as
whether
to
consult
a
undertake
the
additional
961 F. 2d 1536,
a
medical
153 7
disagreement
appropriate
See Wright,
3.
F.3d 1227,
traditionally
states
428 F.2d at 6).
439
are
Davies,
Harper
Crum,
that
judgment
specialist
v.
766
course
testing"
(10th Cir.
with
of
F.2d at 849
Nurse
(citing
1992))) .
Hamlin
treatment
At
with
for
his
(citing Gittlemacker,
Accordingly, Claim Two (c) will be dismissed.
Dr. Gore
In Claim Five (b), Harper contends that Dr. Gore failed to
refer him to a specialist to undergo a CAT scan and MRI,
though she stated that she would do so.
" [T] he question whether a [ CAT scan]
techniques
or
forms
of
treatment
is
(Part.
Compl.
even
at 8.)
or additional diagnostic
indicated
example of a matter for medical judgment.
is
a
classic
A medical decision
not to order a[ CAT scan], or like measures, does not represent
cruel and unusual punishment."
Estelle, 429 U.S. at 107.
Here,
Dr. Gore concluded that Harper's condition could be managed with
15
Tylenol and monitoring,
and that Harper did not require a
(Part. Compl. 8.)
scan or an MRI, or referral to a specialist.
Although Dr.
that
Harper
Harper
Gore
saw
fails
a
to
failed
to
specialist
allege
follow
before
facts
that
CAT
through with ensuring
Harper
suggest
was
Dr.
transferred,
Gore perceived
that such a lapse posed a substantial risk to Harper's health.
Parrish ex rel. Lee, 372 F.3d at 303
340 n.2).
that
he
Rather,
it appears that Dr.
would be
placate Harper.
(quoting Rich,
referred
to
a
129 F.3d at
Gore likely told Harper
specialist
in an
attempt
to
Because Harper fails to allege sufficient facts
demonstrating that Dr. Gore was deliberately indifferent to his
medical needs, Claim Five (b) will be dismissed.
B.
First and Fourteenth Amendment Claim
In Claim Two
rights
under
"respond [ing]
unprofessional
(b),
the
to
First
and
Harper's
manner."
constitutional right
Adams v. Rice,
Harper alleges that Hamlin violated his
Fourteenth
informal
(Part.
Compl.
to participate
40 F.3d 72,
75
Amendments
complaint
6.)
in
"[T]here
is
by
an
no
in grievance proceedings."
{4th Cir.
1994)
Alba, 932 F.2d 728, 729 (8th Cir. 1991)).
(citing Flick v.
Because Harper enjoys
no constitutional right to participate in grievance proceedings,
his allegation that Hamlin improperly responded to his informal
complaint
is
legally
Nos. 3:07CV-419-HEH,
frivolous.
3:09CV14,
See
Banks
2009 WL 1209031,
16
at *3
v.
Nagle,
(E.D. Va.
May 1,
2009}
Moreover,
(citation omitted).
simply
"[r] uling
against a prisoner on an administrative complaint does not cause
or contribute
to
the
[constitutional]
George v.
violation."
Smith, 507 F.3d 605, 609-10 (7th Cir. 2007}.
Accordingly, Claim
Two (b) will be dismissed.
V.
In Claims One
(a),
that Jones,
Hamlin,
his medical
care.
negligence,
NEGLIGENCE CLAIMS
Two
(a},
and Five
(a),
Harper contends
and Gore acted negligently with respect to
(Part.
however,
Compl.
does not
dimension.
See Deavers v.
692835,
at
*4
Brennan,
511 U.S.
(E.D.
Va.
825,
5-6,
state a
Diggins,
Feb.
835,
836
18,
8.}
An
assertion of
claim of constitutional
No.
3:13-CV-821,
2015)
(1994};
(citing
2015 WL
Farmer
Estelle v. Gamble,
v.
429
U.S. 97, 105-06 (1976}).
Jones,
Hamlin,
and Gore contend that Harper's claims for
negligence are barred by the one-year statute of limitations set
forth in section 8. 01-243. 2 of the Virginia Code.
Mot. Dismiss 4-5, ECF No. 32.)
(Mem. Supp.
That section provides:
No
person
confined
in
a
state
or
local
correctional facility shall bring or have brought on
his behalf any personal action relating to the
conditions of his confinement until all available
administrative remedies are exhausted.
Such action
shall be brought by or on behalf of such person within
one year after cause of action accrues or within six
months
after
all
administrative
remedies
are
exhausted, whichever occurs later.
17
Va. Code Ann.
8.01-243.2 (West 2016)
§
filed this action on May 13,
2015,
(emphasis added).
Harper
the date that he placed his
Motion for Enlargement of Time in the prison mailing system. 10
See Houston v. Lack, 487 U.S. 266, 276
Harper's claims
(1988).
against Jones, Hamlin, and Gore accrued, at the latest, on June
25,
2013,
April 3,
2014,
and February 18,
when these Defendants allegedly failed
2014,
respectively,
to provide appropriate
medical care.
Harper failed to file this action within one year
of that date.
However, the record does not establish, and these
Defendants
have
exhaust
all
respect
to
not
of
his
his
addressed,
whether
available
claims.
determine whether Harper
administrative
Because
filed
Harper
of
this
this,
the
even
tried
remedies
Court
to
with
cannot
action within six months
after he exhausted his available remedies.
Because the Court
cannot determine at this time whether Harper's negligence claims
are barred by the limitations period set forth in section 8.01243. 2,
the Motion
to Dismiss
will
be
denied with respect
to
Claims One {a), Two (a), and Five (a).
10
The Court opened this action upon receipt of Harper' s
Motion for Extension of Time.
By Memorandum Order entered on
May 29, 2015, the Court directed Harper to submit a statement
identifying the nature of the action.
(ECF No. 3, at 1.)
The
Court received Harper's response on June 10, 2015.
(ECF No. 4.)
By Memorandum Order entered on July 20, 2015, the Court granted
Harper's Motion for Extension of Time to the extent that the
Clerk was directed to file Harper's June 10, 2015 submission as
the Complaint in this matter.
{ECF No. 7, at l.)
18
VI.
For
No. 31)
One (b),
the
foregoing
CONCLUSION
reasons,
the
Motion
will be granted in part and denied
Two
(b),
Two
{c),
and
Five
(b)
to
Dismiss
in part.
will
be
(ECF
Claims
dismissed.
Harper's claims against Quintana and Dugger will be dismissed
without prejudice pursuant to Rule 4(m} of the Federal Rules of
Civil Procedure.
Any party wishing to file a motion for summary
judgment must do so within sixty (60) days of the date of entry
hereof.
The Clerk is directed to send a
copy of this Memorandum
Opinion to Harper and counsel of record.
1s1
J2W
Robert E. Payne
Senior United States District Judge
r;
Date:
II/~
1'11
Richmond, Virginia/
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?