Black v. Higgs et al

Filing 51

MEMORANDUM OPINION. See OPINION for complete details. Signed by District Judge M. Hannah Lauck on 09/13/2017. Copy mailed to Plaintiff.(ccol, )

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

p

L

b

HERMAN L. BLACK,

SEP (3 2017

Plaintiff,

CLERK. U.S. DISTRICT COURT
RICHMOND. VA

Civil Action No. 3:16CV349

V.

JOSEPH A. HIGGS, JR., et aL,
Defendants.
MEMORANDUM OPINION

Herman L. Black, a Virginia inmate proceeding/?rose and informa pauperis, filed this

42 U.S.C. § 1983 action.' The matter is proceeding on Black's Particularized Complaint
("Complaint," ECF No. 15.) Black names Joseph A. Higgs and Barbara Meade as Defendants.^
Defendants have moved to dismiss. Blackhas responded. For the reasons set forth below, the
Motions to Dismiss (ECF Nos. 22,42) will be GRANTED IN PART AND DENIED IN PART.
I. Standard for Motion to Dismiss

When an individual is proceeding informa pauperis, this Court must dismiss the action if

the Court determines the action (1) "is frivolous" or (2) "fails to state a claim on which relief

may be granted." 28 U.S.C. § 1915(e)(2). The first standard includes claims based upon "an

' 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.

Higgs is the Superintendent of the Rappahannock Regional Jail ("theJail"). Meade is a
nurse at the Jail.

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indisputably meritless legal theory," or claims where the "factual contentions are clearly

baseless." Clay v. Yates, 809 F. Supp. 417,427 (E.D. Va. 1992) (quoting Neitzke v. Williams,

490 U.S. 319,327 (1989)), affd. No. 93-6534,1994 WL 520975, at * 1 (4th Cir. Sept. 23,1994).
The second standard is the familiar standard for a motion to dismiss under Fed. R. Civ. P.

12(b)(6).

"A motion to dismiss under Rule 12(b)(6) tests the sufficiencyof 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

(1990)). In considering a motion to dismiss for failure to statea claim, a plaintiff's well-pleaded
allegations are taken as true and the complaint is viewed in the light most favorable to the
plaintiff". MylanLabs., 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 canchoose to begin byidentifying 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 plainstatement of the
claim showingthat the pleader is entitled to relief,' in order to 'give the defendantfair notice of

what the ... claim is and the grounds upon which it rests.'" BellAtl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41,47 (1957)).
Plaintiffs cannotsatisfy 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 assert facts that rise above speculation and conceivability to those that "show" a

claim that is "plausible on its face," Iqbal, 556 U.S. at 678-79 (quoting Fed. R. Civ. P. 8(a)(2);
Twombly, 550 U.S. at 570). "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." Id. at 678 (citing Twombly, 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.L DuPont de Nemours & Co.,

324 F.3d 761,765 (4th Cir. 2003) (citations omitted). 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 or hercomplaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th
Cir. 1997) (Luttig, J., concurring); Beaudett v. City ofHampton, 775 F.2d 1274,1278 (4th Cir.
1985).
II. Summary of Allegations

Atthe time he filed the Complaint, Black was incarcerated in the Jail, awaiting transfer to
the Virgmia Department of Corrections to serve his five-year sentence. Black has a "severe

hearing disorder" and requires a hearing aid. (Compl. l,f Nurse Meade "has the proofthat
[Black has] a severe hearing disorder and needs hearing aids. She says it's not life threatening,

[therefore Black] somehow needs to come up with the money to pay for the [hearing aid]." {Id.
at 3.) Nurse Meade, however, knows that Black has no money to payfor the hearing aid.
Superintendent Higgs knows of Black's "circumstances, knows [Black's] inmate account has had

a negative balance for thepast 14 months. Still, he agrees with the head nurse that [Black] needs
to pay for the hearing aid, [Higgs] knows [Black] can'tpay." (Jd.) The lack of a hearing aid has

^The Court corrects the spelling, punctuation, and capitalization in the quotations from
Black's Complaint.

made Black's hearing "worse." {Id. at2.) Black contends that he requires a hearing aid to"get
[his] hearing back" so that he "will be able to hear what's going on around" him. {Id. at 4.)
Black demands monetary damages and injunctive relief. {Id.) Essentially, Black
contends that Defendants' failure to provide a hearing aid violates his rights under the Eighth
Amendment."
III. Defendants* Arguments for Dismissal

Defendants argue that Black's demand for injunctive reliefshould be dismissed as moot
and his Eighth Amendment claim should be dismissed for failure to state a claim. For the

reasons setforth below, the Motions to Dismiss will beGRANTED with respect to the demand
for injunctive reliefand DENIED with respect to the Eighth Amendment claim.
A. Mootness

Since the filing ofthe Complaint, Black has been transferred from the Jail to the Virginia
Department of Corrections ("DOC"). (ECF Nos. 39,48.) "[A]s a general rule, a prisoner's

transfer orrelease from a particular prison moots his claims for injunctive and declaratory relief

with respect to his incarceration there." Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009)
(citing Incumaa v. Ozmint, 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)). That isthe
case here. Black's May 1,2017 transfer from the Jail to the DOC mooted his claim for

injunctive relief. Accordingly, Black'sclaim for injunctive reliefin the form of medical care
from the Jail officials will be DISMISSED AS MOOT.

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

B. Eighth Amendment

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, the inmate must allege facts that suggest that the deprivation

complained ofwas 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) (quoting Hudson v. McMilUan, 503 U.S. 1, 9 (1992)).
"In order to demonstrate such anextreme deprivation, a prisoner must allege 'a serious or
significant physical or emotional injury resulting from the challenged conditions.'" De'Lonta v.

Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (quoting Strickler, 989 F.2d at 1381).
In order to state an Eighth Amendment claim for denial of adequate medical care, "a
prisonermust allege acts or omissions sufficiently harmful to evidence deliberate indifference to

serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). "To establish thata 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 aprisoner'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 oftheir

choosing. Hudson, 503 U.S. at 9 (citing Estelle, 429 U.S. at 103-04). In this regard, the right to
medical treatment is lunited 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).

The subjective prong ofa deliberate indifference claim requires the plaintiffto allege
facts thatindicate a particular defendant actually knew of and disregarded a substantial riskof

serious harm to his orher person. See Farmer v. Breman, 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) {cxXingEstelle, 429 U.S. at 105-06).
[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 [or she] 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." Johnson, 145 F.3d at 168

(citing Farmer, 511 U.S. at 837); see Rich v. Bruce, 129 F.3d 336, 340 (4th Cir. 1997)). Thus, to
survive a motion to dismiss, the deliberate indifference standard requires a plaintiff to assert facts
sufficient to form aninference that"theofficial in question subjectively recognized a substantial

risk ofharm" and "that the official in question subjectively recognized that his [or her] actions
were 'inappropriate in light of thatrisk.'" Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303

(4th Cir. 2004) (quoting Rich, 129 F.3d at340 n.2). In evaluating a prisoner's complaint
regarding medical care, the Court is mindfiil that, absent exceptional circumstances, an inmate's
disagreement with medical personnel with respect to a courseof treatment is insufficient to state

a cognizable constitutional claim, much less todemonstrate 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)).
1. Serious Medical Need

The failure to provide basic corrective devices may amount to deliberate indifference to a

serious medical need. See Newman v. Alabama, 503 F.2d 1320, 1331 (5th Cir. 1974) (noting that
a prison's alleged failure to provide "eyeglasses and prosthetic devices" may contribute to an
Eighth Amendment claim). The United States Court ofAppeals for the Fourth Circuit has held

that "under [the] appropriate circumstances the refusal to supply a hearing aid to a convict could

constitute deliberate indifference to a serious medical need." Large v. Wash. Cty. Det. Ctr.,

No. 90-6610,1990 WL 153978, at *2 (4th Cir. Oct. 16, 1990). Here, the Complaint alleges that
Black's hearing impairment issevere and Black is unable to "hear what's going on around" him

without ahearing aid. (Compl. 4.)^ Black further alleges that his hearing is deteriorating in the
absence of a hearing aid. At this stage, such facts are sufficient to indicate that Black has a

serious medical need for a hearing aid. See Gilmore v. Hodges, 738 F.3d 266,275 (11th Cir.
s

' Defendants contend, citing Chacon v. Ofogh, No. CIV. A. 7:08CV00046,2008 WL
4146142 (W.D. Va. Sept. 8,2008), that Black fails to allege sufficient facts to suggest that his
need for ahearing aid constitutes a serious medical need. The record mthat case, however,
reflected Chacon's hearing impairment was not severe. Specifically,
Chacon met with the doctor at Red Onion, the doctor reviewed the results of his

hearing test, evaluated Chacon, and determined that his hearing was not so
impaired as to qualify him to receive free hearing aids. Accordingly, although
Chacon's hearing impairment may inconvenience him and he may desire hearing
aids to improve his quality of life, the court finds that this claim amounts to

nothing more than a disagreement between doctor and patient, which is not
actionable underthe Eighth Amendment.

Id. at *4. Additionally, in concluding that Chacon's desire for free hearing aids did not
constitute a serious medical need, the Court relied upon evidence that reflected "Chacon was

able to 'carry on a normal conversation' and 'hear... and respond[ ] without difficulty.'" Id.
(citation omitted).

2013) (holding that the denial ofahearing aid to an inmate could form the basis ofan Eighth
Amendment claim because "[t]he ability to hear is a basic human need materially affecting daily
activity and asubstantial hearing impairment plainly requires medical treatment by a
physician.").
2. Deliberate Indifference

Next, Defendants contend thatBlack has failed to allege sufficient facts to indicate that

they acted with deliberate indifference. Referencing a Medical Request Form containing Black's
handwritten medical complaint and Meade's written response, Nurse Meade suggests that she
cannot be found to have acted with deliberate indifference because there are no allegations that

she "failed to adhere to a treatment by [Black's] treating physician" to provide ahearing aid.
(ECF No. 23, at 4.) That Medical Request Form, however, indicates that a physician had

prescribed a hearing aid for Black. (ECF No. 15-1, at 1.) In that form. Black states, in pertinent
part:

I have a severe hearing problem. As you know the outside doctor report reported
that I need hearing aids, your reason for not giving me medical treatment is that
this doctor's office will not accept your insurance policy.
m

Moreover, Nurse Meade's response indicates that perthe Jail's policy, she was

indifferent to Black's medical problem unless itwas life-threatening. See Erickson v. Pardus,
551 U.S. 89,94 (2007) (observing that that the plaintiff"bolstered his claim by making more
specific allegations in documents attached to the complaint"). Specifically, she stated: "This

facility is responsible for providing medical care that sustains your life. Unfortunately your life
is not dependent upon receiving hearing aids. Due to not having any options I have been

communicating with DOC [Department of Corrections] for advice." {Id.f A delay or denial of
treatmentfor "non-life-threatening but painful conditions may constitute deliberate indifference

if thedelay exacerbated the injury or uimecessarily prolonged an irunate's pain." Arnett v.

Webster, 658 F.3d 742, 753 (7th Cir. 2011) (citation omitted); seeRodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 830 (7th Cir. 2009) ("[T]he turning of a blind eye to the
legitimate medical needs of a prisoner-patient... can constitute a violation of the Eighth
Amendment."). Here, according to the Complaint, the lack of a hearing aid has resulted in Black

sustaining further hearing loss and has left Black without the ability to hear for a prolonged
period of time. Such allegations are sufficient to indicate that Nurse Meade acted with deliberate

indifference to Black's serious medical need. SeeArnett, 658 F.3d at 753; Gilmore, 738 F.3d at

276 ("It takes no great leap of logic to suggest that nearly two years of isolation caused by
untreated hearing loss could do serious harm to physical and mental health.").

In an argument similar to that advanced by Nurse Meade, Superintendent Higgs contends
this action should be dismissed against him because:

[T]he Complaint fails to allege [that] Superintendent Higgs failed to adhere to or
interfered with a treatment by Plaintiffs treating physician as it relates to his

alleged hearing disorder. The Complaint is wholly devoid of any factual
allegations that Superintendent Higgs took any actions in regards to the medical
care Plaintiff received.

(Mem. Supp. Mot. Dismiss 5, ECF No. 43.) This is simply not accurate. The Complaint and the

attached Medical Request Form reflect that a doctor concluded that Black required ahearing aid.
According to Black, Superintendent Higgs knew Black needed a hearing aid, but agreed with
Nurse Meade that Black would not besupplied with the hearing aid because Black could not pay

®
Contrary to Defendants' suggestion, the context and capitalization in Nurse Meade's
response do not indicate shewas consulting vdth a physician about Black's condition. Rather,
they indicate that she was consultingwith the Department of Corrections as Blackwould
eventually be transferred to that entity and the DOC would be responsible for his medical care.

for it. Such allegations are sufficient to support a claim ofdeliberate indifference against
Superintendent Higgs. See Gilmore, 738 F.3d at 216-11. Accordingly, Defendants' Motion to
Dismiss Black's Eighth Amendment claim will be DENIED.
rV. Conclusion

Defendants' request to dismiss Black's demand for injunctive relief will beGRANTED.

Defendants' request to dismiss Black's Eighth Amendment claim will be DENIED. Defendants'
Motion to Dismiss (ECF Nos. 22,42)will beGRANTED IN PART AND DENIED IN PART.

Any party wishing to file adispositive motion must do so within sixty (60) days ofthe date of
entry hereof.

An appropriate Order will accompany this Memorandum Opinion.

M. Hannah

Date: S£P I 3 201/.

United States bisAifcrjudge

Richmond, Virginia

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