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)

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