Harper v. Gore et al

Filing 59

MEMORANDUM OPINION. See for complete details. Signed by District Judge Robert E. Payne on 06/13/2017. (mailed copy to pro se Plaintiff) (nbrow)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division LINWOOD HARPER, Plaintiff, v. Civil Action No. 3:15CV303 DR. GORE, et al., Defendants. MEMORANDUM OPINION Linwood Harper, a Virginia inmate proceeding pro se and in forma pauper is, action has filed this 42 proceeds No. 14.) on Harper's u. s. c. § 1983 action. 1 The Complaint. (ECF Particularized Harper's Particularized Complaint raised the following claims for relief: Claim One: 1 Nurse Jones (a) acted negligently and (b) violated Harper's rights under the Eighth 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. Amendment 2 by providing Harper the wrong medication on June 25, 2013. (Id. at 5.) 3 Claim Two: Nurse Hamlin (a) acted negligently, (b) violated Harper's rights under the First 4 and Fourteenth 5 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 Three: Officers Matheny, Quintana, and Crowell (a) acted negligently and (b) violated Harper's rights under the Eighth Amendment by delaying their response to Harper's cellmate's request that Harper receive medical attention. (Id.) Claim Four: Sergeants Dugger and Lowe violated Harper's rights under the Eighth and Fourteenth Amendments by delaying their response to Defendants Matheny, Quintana, and Crowell regarding Harper's need for medical attention. (Id. at 7.) 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.) "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. 2 The Court uses the pagination assigned to Harper's Particularized Complaint by the CM/ECF docketing system. The Court corrects the spacing, capitalization, and punctuation in quotations from the Particularized Complaint. 3 4 speech "Congress shall make no law . abridging the freedom of " U.S. Const. amend. I. "No State shall . . deprive any person of life, liberty, or property, without due process of law . . " U.S. Const. amend. XIV, § 1. 5 2 (Id. at 10-11.} Harper seeks damages for relief. By Memorandum Opinion and Order entered on November 10, 2016, the Court granted in part and denied in part the Motion to Dismiss filed dismissed by Claims Defendants One (b} , Jones, Two (b} , Hamlin, Two and (c} , Gore, and and Five (b} . Harper v. Gore, No. 3:15CV303, 2016 WL 6662697, at *7 Nov. 10, 2016}. Defendants (E.D. Va. The Court also dismissed all claims against Quintana and Dugger without prejudice Rule 4(m} of the Federal Rules of Civil Procedure. pursuant to Id. The matter is before the Court on the Motion for Summary Judgment (ECF No. 52} filed by Defendants Matheny, Crowell, and Lowe (collectively, notice, Harper Judgment. has "Defendants"} . 6 not responded Despite receiving Roseboro 7 to the For the reasons stated below, Motion for Summary the Court will grant the Motion for Summary Judgment. 8 I. STANDARD FOR SUMMARY JUDGMENT Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any· material fact and the Defendants Matheny, Crowell, and Lowe are correctional officers employed at the Greensville Correctional Center ( "GCC 11 } • ( Compl . 1.} 6 7 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975}. Defendants Jones, Gore, and Hamlin have filed a Motion for Summary Judgment (ECF No. 47} with respect to Claims One (a}, Two (a}, and Five (a}, which the Court will address in a separate Memorandum Opinion and Order. 8 3 movant is entitled to Civ. 56(a). P. judgment as a matter of law." Fed. The party seeking summary judgment bears R. the responsibility to inform the court of the basis for the motion, and to identify the parts of the record which demonstrate the See Celotex Corp. absence of a genuine issue of material fact. v. Catrett, 477 U.S. 317, 323 (1986). " [W] here the nonmoving party will bear the burden of proof at trial on a issue, a reliance summary solely on interrogatories, quotation judgment the motion may pleadings, properly omitted) . be Id. When the made in answers depositions, and admissions on file." marks dispositive to at 324 motion (internal is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits interrogatories, facts and or admissions showing that there is a on file, ' designate draw reviewing all party." 832, Inc., a summary justifiable inferences United States v. 835 (4th Cir. 477 U.S. 242, 1992) 255 judgment in (1986)). However, evidence will not preclude summary judgment. at 442, 251 448 (citing Improvement Co. (1871)). the of court the Carolina Transformer ·Co., (citing Anderson v. Munson, Id. (1986)). motion, favor to 'specific genuine issue for trial.'" (quoting former Fed. R. Civ. P. 56(c) and 56(e) In answers "'depositions, v. "must nonmoving 978 Liberty F. 2d Lobby, a mere scintilla of Anderson, 477 U.S. 81 U.S. (14 Wall.) "' [T] here is a preliminary question for the 4 judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party imposed.'" Id. upon whom the onus of proof (quoting Munson, 81 U.S. at 448). is Additionally, "'Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary 1527, 1537 Inc., 953 F.2d 909, P. (5th Cir. 56(c)(3) judgment.'" 1994) Forsyth v. (quoting Skotak v. 915 n.7 Barr, 19 F. 3d Tenneco Resins, (5th Cir. 1992)); see Fed. R. Civ. ("The court need consider only the cited materials . .") . Defendants ask the Court to dismiss Harper's constitutional claims because, administrative Because inter alia, remedies the as exhaustion Harper failed required by 42 of to exhaust U.S.C. administrative his 1997e(a). § remedies is an affirmative defense, Defendants bear the burden of pleading and proving lack of exhaustion. (2007) . In Defendants support submit: Institutional ("GCC") No. (2) Ombudsman a their (1) (Mem. Supp. Mot. 53-1); ( "VDOC") of Jones v. the at Bock, Motion for affidavit Greensville Operating Procedure Summary of 866 .1 5 (id. Encl. 216 Judgment, Tapp, the Center ("Tapp Aff."), Virginia Department § S. 199, Correctional Summ. J. Attach. 1 copy of 549 U.S. E:CF of Corrections A ("Operating Procedure§ 866.1")) ; 9 and, (3) copies of grievances submitted by Harper (id. Encl. B). Harper did not respond to the Motion for Summary Judgment, thereby failing to cite to any evidence that he wishes the Court to consider (emphasizing in See opposition. that "[t] he court Fed. need R. Ci v. consider P. only materials" in deciding a motion for summary judgment). 5 6 ( c) ( 3) the cited Harper's Particularized Complaint is sworn to under penalty of perjury. Harper also Complaint attached (Part. Compl. an Affidavit Attach. 1 to his Particularized ("Harper Aff."), ECF No. 14- 1) . In light of the foregoing submissions, the following facts are established for the Motion for Summary Judgment. The Court draws all permissible inferences in favor of Harper. II. A. Facts Underlying Harper's Claims On June 25, at GCC. (Part. 2013, Compl. Harper saw Nurse Jones during pill call 5.) he was not familiar with." she ha [d] PERTINENT FACTS given him [the] Nurse Jones gave Harper pills "that (Id.) Harper told Nurse Jones "that wrong prescription drugs to take and that it was not his medication." (Id.) Nurse Jones replied, The Court has omitted the emphasis in the quotations from this document. 9 6 "'Harper it's medication. your meds take them,'" so Harper Defendants Matheny and Crowell were on duty in Harper's housing pod. (Id. During count, at 6.) cellmate called Defendants Matheny and Crowell he the (Id.) That evening, after took noticed that Harper was not Harper's for assistance (Id.) responding. Defendants Matheny and Crowell took 25 minutes to respond. at 7.) (Id. After seeing that Harper was not responsive, Defendants Matheny and Crowell called their supervisors, Defendants Dugger and Lowe. (Id.) After 45 minutes passed, Defendants Dugger and Lowe "finally responded" and told Defendants Matheny and Crowell "to call medical to let them know they will [be] bringing inmate Harper for emergency treatment because he is not responding." (Id.) B. VDOC's Grievance Procedure Operating Procedure § 866 .1, Offender Grievance Procedure, is the mechanism used to resolve inmate complaints in the VDOC. (Tapp Aff. before ~ Operating submitting demonstrate resolve 5.) the that he Procedure a she grievance, formal or grievance 866 .1 § has made informally a requires that, inmate must the good faith through the effort to procedures available at the institution to secure institutional services or resolve complaints. (Operating Procedure § 866.1.V.B.) Generally, a good faith effort requires the inmate to submit an 7 informal complaint form. (Id. § resolution the inmate effort fails, If the informal 866.1.V.B.1.) must initiate a regular grievance by filling out the standard "Regular Grievance" form. (Id. 866.1.VI.A.2.) § "The original Regular Grievance (no photocopies or carbon copies) should be submitted by the offender through the facility mail system to the Facility Unit Head's Office for processing by the Institutional (Id. 866.1.VI.A.2.b.) § grievance § copy a The offender must attach to the regular of 866.1.VI.A.2.a.) Coordinator." Ombudsman/Grievance informal the Additionally, (Id. complaint. "[i]f 15 calendar days have expired from the date the Informal Complaint was logged without the offender receiving a response, the offender may submit a Grievance on the issue and attach the Informal Complaint receipt as documentation of informally." (Id. filed thirty within days or except instances § attempt the from discovery beyond to the of the resolve the issue A formal grievance must be 8 6 6 . 1. V. B. 2 . ) § occurrence, in the date the of the incident offender's or incident or occurrence, control. (Id. grievance, prison 866 .1. VI.A.1.) 1. Before Grievance Intake Procedure reviewing the substance of a officials conduct an "intake" review of the grievance to assure that it meets the published criteria 8 for acceptance. (Id. § 8 6 6 . 1 . VI . B . ) is logged A grievance meeting the criteria for acceptance in on the day it is received, and a "Grievance Receipt" is issued to the inmate within two working days. § 8 6 6 . 1. VI. B . 3 . ) for acceptance, (Id. If the grievance does not meet the criteria prison officials complete the "Intake" section of the grievance and return the grievance to the inmate within two working days. a review of (Id. the § intake If the inmate desires 8 6 6 . 1. VI . B. 4 . ) decision, he or she must grievance form to the Regional Ombudsman within five days of receipt. 2. (Id. send the calendar 866.1.VI.B.5.) § Grievance Appeals Up to three levels of review exist for a regular grievance. (Id. § which 8 6 6. 1. VI. C. ) the review. The Facility Unit Head of the facility in offender (Id. § is confined 866.1.VI.C.l.) Regional a Administrator, Superintendent Offender II, for subject matter. the § for Level I he or she may appeal the conducted by the Heal th Services Director, the or Chief Operations for Services, (Id. I, review of which is Education, Management responsible If the offender is dissatisfied with the determination at Level decision to Level is the depending 866.1.VI.C.2.) on of the grievance's The Level II response informs the offender whether he or she "qualifies for" an appeal to Level III. (Id. § 866.1.VI.C.2.g.) 9 c. Facts Pertaining To Administrative Remedies On June 30, 2013, Of Exhaustion Harper's Harper submitted an Informal Complaint, alleging that Nurse Jones had given him the wrong medication and (Tapp Aff. that he was rushed to the hospital later that day. Encl. B., ECF No. 53-1, at 23.) 10 responded, acknowledging that On July 15, 2013, Nurse Hamlin Harper had received the wrong medication, but that he was "brought to medical and appropriate action [was] taken by the medical staff to render (Id.} Nurse Hamlin advised Harper that he had the right July 24, 2013, the care." to (Id.} refuse any medication offered to him. On [him] institutional grievance office received a Regular Grievance from Harper, in which Harper stated that on June 25, 2013, he was given the wrong medication by Nurse Jones and that he was later rushed to the hospital. at 19; see Harper Aff. 1.} (Id. Harper complained that he was "still feeling the side effects of being given the wrong medication." (Tapp Aff. Encl. B, ECF No. 53-1, at 19.} evaluation and to 2013, J. see a Halsey investigation into Harper's incorrect medications hospital." (Tapp Aff. responded, claims, and he was , (Id.} psychiatrist. Harris He asked for further he On August "stating had been subsequently 9; see id. Encl. B, that 24, upon given the treated at the ECF No. 53-1, at Enclosure B lacks any pagination. Accordingly, the Court hereinafter refers to this submission by its docket number and the pagination assigned by the CM/ECF docketing system. 10 10 20.) Harris found that Harper's grievance was founded, and that "[a]n action plan was completed on July 5, 2013 by K. Hamlin, RN that included in-service education on the proper procedure of transcribing medications and the importance of checking orders before administering medications to anyone." (Tapp Aff. Encl. B, ECF No. 53-1, at 20.) Harper appealed the Level "to be further I decision to Level II, asking evaluated by an outside physician and receive mental health services." (Id. at 22.) On September 4, 2013, (Id.) Harper's Level II appeal was determined to be unfounded. Harper was informed that Level II was the last level of appeal for his grievance. (Id.) "Harper has not submitted any grievances or complaints at [GCC] concerning the response time to his cell on June 25, (Tapp Aff. " grievances or ~ Harper "has also not filed any 10.) complaints 2013 concerning Officer Matheny, Officer Crowell, or Sergeant Lowe's actions in relation to the incident (Id.) at his cell on June 25, 2013." III. EXHAUSTION ANALYSIS FOR SECTION 1983 CLAIMS The brought § pertinent with statute respect to provides: prison "No conditions action under shall [42 be U.S.C. 1983] or any other Federal law, by a prisoner confined in any jail, prison, administrative or other remedies as correctional are 11 available facility are until exhausted." such 42 U.S.C. § 1997e(a). This language "naturally requires a prisoner to exhaust the grievance procedures offered, whether or not the possible responses demands." cover Booth Generally, v. the specific Churner, 532 relief U.S. 731, 738 (2001). in order to satisfy the exhaustion requirement, aggrieved party must file pursue through all the grievance a grievance raising available 5 4 8 U. S . 81 , 9 O ( 2 OO6) . that section 1997e(a) with an an claim and of appeal, See Woodford v. The Supreme Court has instructed Id. at 93. "requires proper exhaustion." The Supreme Court explained that compliance the levels prior to bringing his or her action to court. Ngo, the prisoner agency's "[p] roper exhaustion demands deadlines and other critical procedural rules," id. at 90, "'so that the agency addresses the issues on the merits. ' " F. 3d 1022, 1024 (7th Cir. Id. (quoting Pozo v. 2002)) . (2007) o 286 The applicable prison rules "define the boundaries of proper exhaustion." 549 u oso McCaughtry, Jones v. Bock, Exhaustion is mandatory, and courts lack discretion to waive the exhaustion requirement. Porter v. 199 I 218 Nussle, 534 U.S. 516, 524 (2002). The record before the Court establishes that Harper failed to pursue a grievance challenging the Defendants in responding to cellmate's assistance. Harper's pertaining to his Harper's inf orrnal receipt of alleged complaint and delay request by for grievance the wrong medication from Nurse 12 Jones and his subsequent medical care are not relevant to the determination remedies whether for the distinct response. Cir. of See, 2008) ~' Harper his administrative claim that Defendants delayed their Moore v. (concluding exhausted that Bennett, 517 F.3d 717, grievances pertaining 729 to (4th medical c did not care for inmate's pancreatic condition and Hepatitis exhaust claims pertaining to inadequate medical care for gout); White v. Mar. Levin, 17, No. 2014) exhaust his 3:13CV23, (citation 2014 WL 1056700, at *5 omitted). Thus, Harper (E.D. Va. failed to administrative remedies because GCC never had the "fair opportunity" to examine the merits of his claims regarding Defendants' delay. Woodford, 548 U.S. at 95. Harper offers no argument to excuse his failure to exhaust his administrative remedies for his claims brought pursuant to § 1983 against Defendants Crowell, Matheny, and Lowe. Accordingly, Claims Three (b) and Four will be dismissed without prejudice. at *9 See Duncan v. Clarke, No. 3:12CV482, 2015 WL 75256, (E.D. Va. remedy for a Jan. 6, 2015) (explaining failure to exhaust under without prejudice" § that 1997e (a) "the normal is dismissal (citing Booth, 532 U.S. at 735)). IV. NEGLIGENCE CLAIMS In Claim Three (a), Harper contends that Defendants Matheny and Crowell acted negligently by delaying a response to Harper's cellmate's request that Harper 13 receive medical attention. (Part. Compl. 6.) does not however, An assertion of negligence of state a claim of that constitutional sort, dimension. See Deavers v. Diggins, No. 3:13-CV-821, 2015 WL 692835, at *4 ( E . D . Va . Feb. 825, 836 835, 18 , 2O15) (1994); (citing Farmer v. Estelle v. Gamble, Brennan, 429 U.S. 511 U. S . 97, 105-06 (1976)). Defendants Matheny and Crowell contend that Harper's claims for negligence are barred by the one-year statute of limitations (Mem. set forth in section 8. 01-243. 2 of the Virginia Code. Supp. Mot. Summ. J. 10-11, ECF No. 53.) 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. Va. Code Ann. § 8.01-243.2 (West 2016) (emphasis added). Harper filed this action on May 13, 2015, the date that he placed his Motion for Enlargement of Time in the prison mailing system. 11 See Houston v. Lack, 487 U.S. 266, 276 (1988). 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 1.) 14 11 Harper's claims against Matheny and Crowell accrued on June 25, 2013, when these Defendants allegedly delayed in responding to Harper's cellmate's attention. request for Harper to receive medical Harper failed to file this action within one year of that date. Moreover, exhaust his available as discussed above, administrative Harper has failed to remedies with respect to his claims of negligence against Defendants Matheny and Crowell. Thus, Harper's claims of negligence against Defendants Matheny and Crowell Code. are barred by section 8. 01-243. 2 of the Virginia Accordingly, Claim Three (a) will be dismissed. V. CONCLUSION For the foregoing reasons, (ECF No. 52) will be granted. dismissed without prejudice. the Motion for Summary Judgment Claims Three (b) and Four will be Claim Three (a) will be dismissed. The Clerk is directed to send a copy of this Memorandum Opinion to Harper and counsel of record. 1s1 &W Robert E. Payne Senior United States District Judge Richmond, Virginia Date: June -JJ..- 2017 1 15

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