Edwards v. Kanode et al
Filing
285
MEMORANDUM OPINION. Signed by Judge Thomas T. Cullen on 3/14/2022. (Opinion mailed to Pro Se Party via US Mail)(tvt)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
MICHAEL DERRICK EDWARDS,
Plaintiff,
v.
BARRY KANODE, et al.,
Defendants.
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Case No. 7:19-cv-00324
MEMORANDUM OPINION
By:
Hon. Thomas T. Cullen
United States District Judge
In an effort to subdue an altercation between Plaintiff Michael Derrick Edwards and
prison staff at River North Correctional Center, officers responded with force and deployed
a canine on Plaintiff, causing him to be bitten in several places. Plaintiff sustained cuts, bruises,
and puncture wounds from the dog’s bite. This lawsuit concerns the officers’ response, as well
as the medical attention (or, as Plaintiff alleges, a lack thereof) that he received after the
incident. This matter is before the court on motions for summary judgment filed by two
medical personnel—Lisa Parks, RN, and Deborah Ball, NP. Because the court has previously
held that factual questions reserved for the jury preclude summary judgment for either Parks
or Ball, both motions will be denied.
I.
The facts of this case are adequately recounted in the court’s prior memorandum
opinions (see Mem. Op., Oct. 30, 2020 [ECF No. 215]; Mem. Op., Oct. 30, 2020 [ECF No.
217]) and need not be recounted in great detail here. Briefly, though, on November 27, 2018,
following an altercation with correctional officers, a canine was deployed on Plaintiff, biting
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him in several places. For purposes of the present motion, the allegations Plaintiff levies
against the correctional officers are irrelevant.
What is relevant is the decision, while he was in medical surveillance, to place him in
“five-point” restraints 1 with open wounds on his back. The medical evidence is clear—and
undisputed—that Plaintiff had an abrasion and at least two lacerations on his back when the
restraints were applied. 2 Although the wound was cleaned on doctor’s orders, it was not
bandaged. Consistent with prison policy, Defendant Lisa Parks, RN, approved the
implementation of 5-point restraints on Plaintiff. Plaintiff contends her approval amounted to
deliberate indifference to a serious medical need, in violation of the Eighth Amendment.
Following the altercation and initial treatment, Plaintiff was transferred to Red Onion
State Prison. When he arrived, he was seen by Defendant Deborah Ball, NP. Plaintiff alleges
(in his verified pleadings and in a declaration attached to his response in opposition to Ball’s
motion for summary judgment) that he complained to Ball about “pain throughout his whole
body, to both hands and wrists, to both eyes,” and that he could not see out of his left eye
because it was swollen shut. (Decl. of Michael Edwards ¶ 5, Feb. 20, 2020 [ECF No. 131-1].)
He alleges that Ball told him to wait “for a month or two” for the pain to go away and refused
to prescribe him any pain medication. Plaintiff alleges that Ball ignored his repeated complaints
of pain and numbness, forgoing any treatment for nearly four months. When he was seen by
It is undisputed that “five-point” restraints involve strapping an inmate to a bed with cuffs on both wrists,
both ankles, and a strap across his chest. See, e.g., Davis v. Lester, 156 F. Supp. 2d 588, 591 (W.D. Va. 2001)
(describing “5-point” restraints).
1
Medical personnel contend that the lacerations “were not open wounds.” (See, e.g., Decl. of James Stevens,
M.D. ¶ 35, June 11, 2021 [ECF No. 253-2].)
2
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the regional physician in March 2019, he was prescribed pain medication. (See ECF No. 1312.)
Plaintiff, proceeding pro se, filed a complaint in this court on April 22, 2019, and he
filed an amended complaint on October 16, 2019. (See ECF Nos. 1, 54.) A second amended
complaint was docketed on March 2, 2020. (ECF No. 126.) Defendant Ball filed a motion for
summary judgment on January 10, 2020. (ECF No. 108.) On May 19, 2020, Plaintiff was
permitted to make a small amendment to change the name of a party within his pleading,
resulting in, for all intents and purposes, a third amended complaint. (See Order, May 19, 2020
[ECF No. 165].) Defendant Parks filed a motion to dismiss on July 14, 2020 (ECF No. 182),
and she filed a motion for summary judgment one week later, on July 21 (ECF No. 186). The
Honorable Glen E. Conrad, then-Senior United States District Judge, denied those motions
on October 30, 2020. (See Order, Oct. 30, 2020 [ECF No. 216]; Order, Oct. 30, 2020 [ECF
No. 218].)
On August 10, 2021, Defendant Ball filed a second motion for summary judgment.
(ECF No. 244). Defendant Parks filed a second motion for summary judgment on September
14, 2021. (ECF No. 252.) This case was transferred to the undersigned on January 13, 2022
(ECF No. 275), and the motions for summary judgment are ripe for review.
II.
Federal Rule of Civil Procedure 56(a) provides that a court should grant summary
judgment “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” “As to materiality, . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude
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the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment is inappropriate “if the dispute about a material fact is ‘genuine,’ that is, if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id.; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). But
if the evidence of a genuine issue of material fact “is merely colorable or is not significantly
probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50 (internal citations
omitted). In considering a motion for summary judgment under Rule 56, a court must view
the record as a whole and draw all reasonable inferences in the light most favorable to the
nonmoving party. See id. at 255; Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). The nonmoving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to
defeat a motion for summary judgment. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874–75 (4th
Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof
that would apply at a trial on the merits.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16
(4th Cir. 1993) (“The summary judgment inquiry thus scrutinizes the plaintiff’s case to
determine whether the plaintiff has proffered sufficient proof, in the form of admissible
evidence, that could carry the burden of proof of his claim at trial.”); Sakaria v. Trans World
Airlines, 8 F.3d 164, 171 (4th Cir. 1993) (finding that the district court properly did not consider
inadmissible hearsay in an affidavit filed with motion for summary judgment).
III.
Plaintiff makes Eighth Amendment claims—actionable through 42 U.S.C. § 1983—
against both Parks and Ball. Plaintiff contends Parks was deliberately indifferent to his serious
medical needs when she approved the use of five-point restraints on him while he had wounds
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on his back. Plaintiff alleges that Ball was deliberately indifferent to his serious medical needs
by delaying and/or denying treatment for pain and numbness where the canine bit him for
months after the incident.
A.
To establish a cognizable Eighth Amendment claim for denial of medical care, a
plaintiff must put forth facts sufficient to demonstrate that an official was deliberately
indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 105 (1976); Conner v.
Donnelly, 42 F.3d 220, 222 (4th Cir. 1994); Staples v. Va. Dep’t of Corr., 904 F. Supp. 487, 492
(E.D. Va. 1995). A prison official is “deliberately indifferent” only if he or she “knows of and
disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837
(U.S. 1994). A claim concerning a mere disagreement between an inmate and medical
personnel regarding diagnosis or course of treatment does not implicate the Eighth
Amendment. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985); Russell v. Sheffer, 528 F.2d 318,
319 (4th Cir. 1975); Harris v. Murray, 761 F. Supp. 409, 414 (E.D. Va. 1990). In fact, “many
acts or omissions that would constitute medical malpractice will not rise to the level of
deliberate indifference.” Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). An “error of
judgment” on the part of prison medical staff or “inadvertent failure to provide adequate
medical care,” while perhaps sufficient to support an action for malpractice, does not
constitute a constitutional deprivation redressable under § 1983. Boyce v. Alizaduh, 595 F.2d
948, 953 (4th Cir. 1979), abrogated on other grounds by Neitzke v. Williams, 490 U.S. 319 (1989).
Mere negligence does not constitute deliberate indifference; rather, a prison official must both
be aware of the facts from which the inference could be drawn that a substantial risk of harm
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exists and must draw the inference. Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998); see
also Farmer, 511 U.S. at 837. The prison official’s conduct must be so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to fundamental
fairness. Militier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990).
Intentional delay of (or interference with) medical treatment can also amount to
deliberate indifference. See Formica v. Aylor, 739 F. App’x 745, 755 (4th Cir. 2018); Jett v. Penner,
439 F.3d 1091, 1096 (9th Cir. 2006). But Fourth Circuit has held that there is “no Eighth
Amendment violation unless ‘the delay results in some substantial harm to the patient,’ such
as a ‘marked’ exacerbation of the prisoner’s medical condition or ‘frequent complaints of
severe pain.’” Formica, 739 F. App’x at 755 (citing Webb v. Hamidullah, 281 F. App’x 159, 166–
67 (4th Cir. 2008)); see also Sharpe v. S.C. Dep’t of Corr., 621 F. App’x 732, 734 (4th Cir. 2015)
(“A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury
or unnecessarily prolonged an inmate’s pain.” (cleaned up)). Substantial harm may also be “‘a
lifelong handicap or permanent loss.’” Coppage v. Mann, 906 F. Supp. 1025, 1037 (E.D. Va.
1995) (quoting Monmouth Co. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)).
“[T]he length of delay that is tolerable depends on the seriousness of the condition and the
ease of providing treatment.” Id. at 758 (quoting McGowan v. Hulick, 612 F.3d 636, 640 (7th
Cir. 2010)) (emphasis added).
B.
As it relates to Nurse Parks, the court previously considered—and denied—summary
judgment on Plaintiff’s claims against Parks. In October 2020, the court held:
Drawing all reasonable inferences from the evidence in Edwards’
favor, the court concludes that he may be able to show that RN
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Parks acted with deliberate indifference to a serious medical need
in failing to object, for medical reasons, to the nature of Edwards’
placement in restraints. Specifically, Edwards may be able to
persuade a jury that RN Parks must have known from obvious
facts that restraining Edwards, naked on the table with open
wounds on his back, created an excessive risk of serious harm—
both pain and the risk of infection—from exposure of the wound
to the table’s surface during the lengthy restraint period. The
court also concludes that Edwards may be able to prove that,
contrary to RN Parks’ conclusory denial, she did have authority .
. . to protest, for medical reasons, the restraint of Edwards in this
manner.
(Mem. Op. pg. 6, Oct. 30, 2020 [ECF No. 215].) Parks does not address or even acknowledge
the court’s prior findings in her supporting brief. (See ECF No. 253.) To his credit, Plaintiff
asked the court to take judicial notice of Judge Conrad’s prior opinion in this case. (See ECF
No. 268.)
The court’s prior reasoning is still controlling. Plaintiff alleges that he had open wounds
on his back and was forced to lay naked on a table in restraints, and Parks admits that she
“was the nurse . . . who . . . verified placement of Plaintiff’s five-point restraints as being
appropriate.” (Decl. of Lisa Parks ¶ 12, June 17, 2021 [ECF No. 253-1].) A jury could
reasonably conclude that the wounds on Plaintiff’s back constituted a serious medical
condition and that permitting Plaintiff to lay, restrained, on those unbandaged wounds (even
if they remained unbandaged on doctor’s orders) constituted deliberate indifference. See
Formica, 739 F. App’x at 755 (noting that a medical condition is “objectively serious when it
‘would result in further significant injury or unnecessary and wanton infliction of pain if not
treated’” (quoting Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)); Farmer, 511 U.S. at 837
(holding that an official is deliberately indifferent to an inmate’s serious medical needs when
she subjectively “knows of and disregards an excessive risk to inmate health or safety”).
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Because Parks has not brought forth any evidence the justify reversing this court’s prior
judgment, her motion for summary judgment will be denied.
C.
The same must be true of Ball’s second motion for summary judgment. In its prior
opinion, the court held that “that the evidence in the record as to the injuries and symptoms
Edwards exhibited at Red Onion presents issues of fact for trial regarding the objective portion
of the constitutional standard.” (Mem. Op. pg. 6, Oct. 30, 2020 [ECF No. 217].) Like Parks,
Ball does not acknowledge, let alone address, the court’s prior ruling. (See ECF No. 245.)
Plaintiff asked the court to take judicial notice of this opinion as well. (See ECF No. 263.)
As the court held:
[I]t is undisputed that after the altercation on November 27,
2018, nurses and a doctor at River North determined that
Edwards’ injuries warranted medical treatment there, in addition
to follow-up care at Red Onion. Jackson, 775 F.3d at 178.
Moreover, Edwards describes his complaints of Pain to NP Ball.
Formica, 739 F. App’x at 755.
The court also concludes that on the current record,
Edwards’ evidence about NP Ball’s treatment decisions and notes
about the November 29, 2018, examination and thereafter, taken
in the light most favorable to him, present material disputes of
fact for trial on deliberate indifference. Clearly, NP Ball did not
ignore Edwards’ injuries that day. She performed and
documented a thorough assessment of his condition and ordered
X-rays of his hand and face to assist in determining future
treatment needs. However, despite Edwards’ reports of
widespread pain, NP Ball did not prescribe pain medication or
other pain-relieving treatments. She also did not refer Edwards
to the prison physician, an optometrist, or a neurologist regarding
his pain, his obviously injured eyes, and his reports of numbness.
According to Edwards, NP Ball merely advised Edwards to give
these conditions time to resolve.
...
[When NP Ball saw Plaintiff again on February 14, 2019,
she] referred him to the optometrist, but she did not provide
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treatment expressly designated to address his pain or numbness.
. . . Edwards saw the regional physician, Dr. Fox, on March 20,
2019. Dr. Fox diagnosed Edwards’ subjective hand complaints as
chronic hand pain from dog bites received in November 2018
and, over the next several weeks, the doctor prescribed various
pain medications for Edwards to try to address the issue.
Based on this evidence, the court finds disputes of fact on
which Edwards may be able to persuade a jury that NP Ball knew
that Edwards was suffering, and would continue to suffer, pain
and possibly other visual or neurological effects because of her
actions or inactions on November 29, 2018, and in the days and
weeks thereafter. He may be able to show that NP Ball knew the
care she provided at that first exam was inadequate to address
some of his immediate and serious medical needs. De’lonta, 708
F.3d at 526. Moreover, Edwards may be able to show that he
suffered prolonged, serious medical conditions because of NP
Ball’s decisions to delay treatment for pain, referral to the prison
physician, and referral to specialists for treatment of his eyes and
numbness. “[D]elaying access to medical care” may constitute
deliberate indifference. See Smith v. Smith, 589 F.3d 736, 739 (4th
Cir. 2009) (citing Estelle, 429 U.S. at 104–05). In such cases, in
addition to establishing that his medical need was objectively
serious, a plaintiff must usually show that the delay in providing
medical care caused him to suffer “substantial harm.” See, e.g.,
Webb v. Hamidullah, 281 F. App’x. 159, 166 (4th Cir. 2008);
Shabazz v. Prison Health Servs., Inc., No. 3:10CV190, 2012 WL
442270, at *5 (E.D. Va. Feb. 9, 2012). “The substantial harm
requirement may be satisfied by lifelong handicap, permanent
loss, or considerable pain.” Shabazz, 2012 WL 442270, at *5
(citing other cases). Finding material factual disputes as to the
alleged delays in treatment, based on the current record, the court
will deny NP Ball’s motion for summary judgment.
(Id. at 6–7 (footnote omitted).)
Like Parks, Ball fails to offer any compelling evidence to warrant setting aside the
court’s prior judgment. Although she repeats, throughout her briefings, that questions of
medical judgment are not subject to judicial review, see Russell, 528 F.2d at 319 (“Questions of
medical judgment are not subject to judicial review.”), this general proposition does nothing
to address the court’s prior, well-reasoned conclusion that four months without treatment for
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repeated complaints of pain may constitute deliberate indifference. 3 See Formica, 739 F. App’x
at 755 (noting that “frequent complaints of severe pain” may suffice to show substantial harm
to the inmate); Sharpe, 621 F. App’x at 734 (“A delay in treatment may constitute deliberate
indifference if the delay . . . unnecessarily prolonged an inmate’s pain.” (cleaned up)).
Defendant Ball’s motion for summary judgment will be denied.
IV.
For the reasons stated above (and in the court’s prior opinions), the issues surrounding
Nurse Parks’ and Nurse Practitioner Ball’s treatment of Plaintiff are questions of fact that are
not appropriate for summary judgment. Their respective motions will be denied.
The clerk is directed to forward a copy of this Memorandum Opinion and
accompanying Order to the parties.
ENTERED this 14th day of March, 2022.
/s/ Thomas T. Cullen________________
HON. THOMAS T. CULLEN
UNITED STATES DISTRICT JUDGE
NP Ball does contend that, as a result of Plaintiff’s professed allergies to non-steroidal anti-inflammatory
drugs (“NSAIDs”) and other factors, there were no pain medications she could prescribe Plaintiff except
narcotics, and that “narcotics are not ordered in the correctional setting for acute injuries like the ones Plaintiff
presented with on November 29, 2018.” (Ball’s Mem. in Supp. pg. 30, Aug. 10, 2021 [ECF No. 245].) Perhaps
a jury will accept that argument, but it is no defense at this stage to say that Ball refused to exercise her medical
judgment because it was against prison policy. Likewise, the prison policy prohibiting the issuance of narcotics
for acute injuries is not and cannot be an impenetrable shield against liability under the Eighth Amendment.
See Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977) (“Federal courts, though reluctant to intervene in the daily
operation of penal institutions, have required those institutions to provide adequate food, clothing and shelter
for their charges. Additionally . . . , they have required the provision of reasonable medical care, as needed.”).
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