Murray v. Rubenstein et al

Filing 299

MEMORANDUM OPINION AND ORDER granting Defendant Sandra May's 215 MOTION for Summary Judgment. Signed by Judge Joseph R. Goodwin on 10/17/2017. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
GARLAND MURRAY,
v.

CIVIL ACTION NO. 2:13-cv-15798

RUSSELL MATHENEY, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the court is Defendant Sandra May’s Motion for Summary
Judgment [ECF No. 215]. The plaintiff filed a Response [ECF No. 234], and the
defendant filed a Reply [ECF No. 248]. The motion is now ripe for adjudication. For
the reasons stated below, the defendant’s motion is GRANTED.
I.

Background
a. April 1, 2013 Incident
On April 1, 2013 at around 4:00 p.m., the plaintiff, Garland Murray, was

stabbed by another inmate while incarcerated at the Mount Olive Correctional
Complex (“MOCC”). Mem. Law Supp. Def. Sandra May’s Mot. Summ. J. 1 (“Def.’s
Mem.”) [ECF No. 216]. After the stabbing, the plaintiff was transferred to the medical
unit at MOCC where he was evaluated by the defendant, Sandra May. Id. at 2. The
defendant is a licensed physician’s assistant who is employed by Wexford Health
Sources, Inc. at MOCC. Id.
The plaintiff alleges that after he was stabbed, the defendant “refused to treat
[his] serious wounds and injuries, [and] delayed access to medical surgery for seven

hours.” Pl.’s Resp. to Def. Sandra May’s Mot. Summ. J. (“Pl.’s Resp.”) 1 (emphasis
omitted) [ECF No. 234]. The plaintiff alleges that when he arrived at the medical unit
he told the defendant he could not breathe, and she responded that nothing was
wrong with him and that he should return to his cell. Id. at 4. According to the
plaintiff, the defendant told him she “would give him some band aids later, and that
in the meantime he could press his shirt, which had been cut off of him for the
examination, to his wounds.” Id. The plaintiff contends that the defendant never
listened to his lungs despite his repeated statements regarding his inability to
breathe. Id.
The plaintiff maintains that he refused to return to his cell and that guards
threatened him with mace. Id. The plaintiff says that he continued to refuse, telling
them that he could not breathe and felt like he was dying. Id. Then the officers left
the room with the defendant. Id. At 6:40 p.m., the defendant ordered the plaintiff to
be transferred to the hospital. Id.
The plaintiff was transported to Montgomery General Hospital (“MGH”),
where it was determined that he had a collapsed lung. Id. at 5. Since the hospital did
not have the equipment necessary to treat the plaintiff’s injury, he was transferred
to the trauma center at Charleston Area Medical Center (“CAMC”). Id. The plaintiff
arrived at CAMC at 10:51 p.m. Id. The plaintiff was treated at CAMC, and was
discharged on April 3, 2013. Def.’s Mem. 2.

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b. The Plaintiff’s Stay in the Infirmary—April 3–4, 2013
When the plaintiff was discharged from CAMC, he was returned to MOCC,
where he was placed in the medical infirmary. Id. CAMC provided the plaintiff with
a copy of his discharge instructions, which he provided to the medical staff at MOCC.
Pl.’s Resp. 5. The plaintiff alleges that the defendant treated him in the infirmary.

Id. The defendant, however, alleges that she only treated the plaintiff one time after
he returned from the hospital, on May 22, 2013, well after the defendant was released
from the infirmary. Def.’s Mem. 8. While in the infirmary, the plaintiff was given a
band aid and A+D ointment to apply to his wounds. Pl.’s Resp. 5. The plaintiff alleges
that “[h]is wounds were not cleaned, he was not provided access to a shower, and he
was not provided the prescribed medication, even though he advised Ms. May that he
was still in pain and in contravention of the CAMC discharge orders.” Id.
c. After the Plaintiff was Released From the Infirmary
The plaintiff was released from the infirmary on April 4, 2013. Def.’s Mem. 2.
According to the plaintiff, when he was returned to his solitary confinement cell, he
“continued to request treatment, including by pressing his emergency call button,
filing grievances, and filling out sick calls.” Pl.’s Resp. 5. The plaintiff alleges that the
defendant “continued to refuse to comply with the CAMC discharge orders to keep
the wound cleaned and bandaged and treat [the plaintiff’s] pain from his recovery
from surgery.” Id. The defendant argues that this is not true, and that the plaintiff
repeatedly refused medical treatment after he returned to his cell. Def. Sandra May’s
Reply to Pl.’s Resp. to Def. Sandra May’s Mot. Summ. J. 17 (“Def.’s Reply”) [ECF No.
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248]. The plaintiff alleges that other nurses who responded to his sick calls advised
him that the defendant was a level above them, and that the defendant would not
permit them to refer him to see the defendant or the other medical staff because he
was fine. Pl.’s Resp. 5–6. The plaintiff alleges that without proper cleaning and
treatment, his wound became infected and his neck wound swelled and filled with
pus. Id. at 6. The defendant contends that the plaintiff did not develop an infection
as a result of his wounds. Def.’s Mem. 14. The plaintiff alleges that as a result of the
stabbing and the failure to timely and properly treat his wounds, he “continues to
suffer difficulty breathing and ongoing pain in his arm/collarbone area, as well as
significant anxiety.” Pl.’s Resp. 6.
II.

Procedural Background
On August 26, 2016, the plaintiff filed his second amended complaint. Am.

Compl. (“Am. Compl.”) [ECF No. 112]. On September 9, 2016, the defendant filed a
motion to dismiss. Def. Sandra May’s Mot. Dismiss Amend. Compl. [ECF No. 115].
The court granted this motion as to the plaintiff’s Fourteenth Amendment claim,
West Virginia State Constitutional claim, and negligence claim. Order [ECF No. 134].
The court, however, allowed the plaintiff’s claim under 42 U.S.C. § 1983 to proceed.

Id.
On June 23, 2017, the defendant filed this motion for summary judgment. The
motion argues that summary judgment is proper because: (1) the court lacks subject
matter jurisdiction because the plaintiff failed to exhaust his administrative remedies
as required by the Prison Litigation Reform Act (“PLRA”) and West Virginia Prison
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Litigation Reform Act (“WVPLRA”); and (2) even if the plaintiff did exhaust his
administrative remedies, the plaintiff has not proffered any evidence that creates a
genuine issue of material fact that the defendant violated the plaintiff’s Eighth
Amendment rights.
III.

Legal Standard

To obtain summary judgment, the moving party must show that there is no
genuine dispute as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). “Facts are ‘material’ when they
might affect the outcome of the case.” Lester v. Gilbert, 85 F. Supp. 3d 851, 857 (S.D.
W. Va. 2015) (quoting News & Observer Publ’g. Co. v. Raleigh-Durham Airport Auth.,
597 F.3d 570, 576 (4th Cir. 2010)). “A genuine issue of material fact exists if . . . a
reasonable fact-finder could return a verdict for the non-movant.” Runyon v. Hannah,
No. 2:12-1394, 2013 WL 2151235, at *2 (S.D. W. Va. May 16, 2013) (citations omitted);

Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991) (“Disposition by summary
judgment is appropriate . . . where the record as a whole could not lead a rational
trier of fact to find for the non-movant.”). The moving party bears the burden of
showing that “there is an absence of evidence to support the nonmoving party’s case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In considering a motion for summary judgment, the court will not “weigh the
evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving party. Matsushita Elec.
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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). Summary judgment is
appropriate when the nonmoving party has the burden of proof on an essential
element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp., 477 U.S. at 322–23. The
nonmoving party must satisfy this burden of proof by offering more than a mere
“scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.
Likewise, conclusory allegations or unsupported speculation, without more, are
insufficient to preclude the granting of summary judgment. See Dash v. Mayweather,
731 F.3d 303, 311 (4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191
(4th Cir. 1997).
IV.

Discussion
a. Exhaustion of Administrative Remedies Under the PLRA
The defendant first argues that summary judgment is proper because the court

lacks subject matter jurisdiction. Def.’s Mem. 5. Specifically, the defendant argues
that the plaintiff did not exhaust his administrative remedies by timely filing and
appealing grievances regarding the treatment that the defendant provided him, as
required by the PLRA and WVPLRA. Id.
Congress passed the PLRA “to address concerns about the ‘ever-growing
number of prison-condition lawsuits that were threatening to overwhelm the capacity
of the federal judiciary.’” Green v. Young, 454 F.3d 405, 406 (4th Cir. 2006) (quoting

Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 676 (4th Cir. 2005)). “The
PLRA imposes some rather substantial limitations on a prisoner’s ability to initiate
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a civil action.” Id. One of these limitations is the requirement that prisoners exhaust
administrative remedies within the prison before filing a civil action.” Id.
The PLRA states that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title . . . by a prisoner confined in any . . .
correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has held that the “PLRA’s
exhaustion requirement applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
“Not only must a prisoner exhaust his administrative remedies, but he must
also do so properly.” Wells v. Parkersburg Work Release Ctr., No. 2:15-cv-04103, 2016
WL 696680, at *3 (S.D. W. Va. Jan. 19, 2016), adopted by 2016 WL 707457 (S.D. W.
Va. Feb. 19, 2016). “Proper exhaustion demands compliance with an agency’s
deadlines and other critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure on the course of its
proceedings.” Id. (citing Woodford v. Ngo, 548 U.S. 81, 90–91 (2006)).
Like the PLRA, the WVPLRA “require[s] inmates to exhaust their
administrative remedies before they bring a lawsuit.” Legg v. Adkins, No. 2:16-cv01371, 2017 WL 722604, at *2 (S.D. W. Va. Feb. 23, 2017) (citing 42 U.S.C. § 1997e(a);
W. Va. Code § 25-1A-2a(i)). Under the WVPLRA, “[a]n inmate may not bring a civil
action regarding an ordinary administrative remedy until the procedures
promulgated by the agency have been exhausted.” W. Va. Code § 25-1A-2(c). The
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WVPLRA defines an ordinary administrative remedy as “a formal administrative
process by which an inmate submits a grievance seeking redress or presenting
concerns regarding any general or particular aspect of prison life. . . . An ordinary
administrative remedy includes, but is not limited to, . . . health care . . . [and] staff
treatment or some other alleged wrong.” Id. § 25-1A-2(a). Under the WVPLRA,
An ordinary administrative remedy is considered
exhausted when the inmate’s grievance complies with duly
promulgated rules and regulations regarding inmate
grievance procedures, has been accepted, fully appealed
and has received a final decision from the Commissioner of
Corrections or the Commissioner's designee, or the
Executive Director of the Regional Jail Authority, or the
Director's designee.
§ 25-1A-2(d).
Contrary to the defendant’s position, the PLRA and WVPLRA are not a
jurisdictional prerequisite. Jones v. Block, 549 U.S. 199, 216 (2007); Moore v.

Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Instead, “failure to exhaust available
administrative remedies is an affirmative defense.” Moore, 517 F.3d at 725.
If a plaintiff fails to exhaust his or her administrative remedies under the
PLRA or WVPLRA, then the defendant is entitled to judgment as a matter of law.

See Legg, 2017 WL 722604, at *2. Whether an administrative remedy has been
exhausted for purposes of the PLRA “is a question of law to be determined by the
judge.” Creel v. Hudson, No. 2:14-cv-10648, 2017 WL 4004579, at *3 (S.D. W. Va.
2017) (quoting Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)).

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At the time the plaintiff filed complaints regarding the issues in this case,
Section 90 of the West Virginia Code provided the procedures that inmates were
required to follow when filing a grievance. The steps for filing and appealing
grievances are outlined below:
An inmate may file a grievance using forms provided by the
prison “within fifteen (15) days of any occurrence that
would cause him/her to file a grievance.” [W. Va. Code] §
90-9-4.1. Only one issue or complaint may be grieved per
form, and the inmate must submit the form to his or her
unit manager. §§ 90-9-4.2, 90-9-4.3. Upon receipt of the
grievance form, the unit manager logs the grievance and
assigns it a number. § 90-9-4.3. The unit manager is
required to return an answer to the grievance back to the
inmate within five days. § 90-9-4.5. If the unit manager
fails to answer or reject the grievance within five days, the
inmate may treat the non-response as a denial and proceed
to the next level of review. Appeals from the unit manager’s
response (or non-response, as the case may be) are
submitted “to the Warden/Administrator within five (5)
days from delivery of the response.” § 90-9-5.1. “The
Warden/Administrator shall respond to the appeal ...
within five (5) days.” § 90-9-5.4. Finally, if the warden’s
response is unsatisfactory, or if the warden does not
respond within the applicable time, the inmate may appeal
to the Commissioner of the Division of Corrections within
five days of the warden’s response or after the applicable
time has passed. § 90-9-6.1. The Commissioner is allotted
ten days to respond to the appeal. § 90-9-6.3.

Id.
Here, the plaintiff argues that he filed four grievances regarding his medical
care, and that the court should find that all four were exhausted. Pl.’s Resp. 9. The
plaintiff argues that grievance number 414 satisfies the PLRA’s exhaustion
requirement because the commissioner “accepted” the grievance. He also argues that
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while grievance numbers 405, 435, and 482 were rejected by the commissioner, they
should still be considered exhausted, because “the prison interfered with [his] ability
to exhaust by failing to return [the] grievances and not following prison policies.” Pl.’s
Resp. 11. I will consider each of his arguments below.
The plaintiff argues that grievance number 414, which was filed on April 8,
2013, was properly exhausted because the commissioner placed a check mark in the
“accepted” section of the grievance. Id. at 9. Generally, the plaintiff would be correct,
because “accepted” means that the grievance was formally received and reviewed on
the merits. Policy Directive No. 335, State of West Virginia Division of Corrections 1
(“Policy Dir. No. 335”). Here, however, the commissioner checked the accepted box
without actually reviewing the complaint on the merits. Instead, the commissioner
affirmed the prior findings of the warden that the plaintiff did not follow proper
procedures in filing his grievances. Pl.’s Resp. Ex. J, at 2 [ECF No. 234-6]. Specifically,
the warden rejected the grievance for asserting more than “one issue/ [claim for] relief
. . . in a single grievance.” Id.
DOC Policy Directive 335(V)(A)(4) states “[a]ny inmate who fails to fully and
properly comply with the provisions set forth in this Policy Directive shall not be
considered to have taken full advantage of administrative remedies afforded him/her
and therefore has not exhausted his administrative remedies.” Policy Dir. No. 335, at
5. Since the Policy Directive also states that “[a]n inmate may grieve only one (1)
issue or complaint per form,” id. at 6, and the plaintiff failed to do so, grievance
number 414 was not properly exhausted, and therefore does not satisfy the
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requirements of the PLRA or WVPLRA. The plaintiff could have corrected this defect
within five days and refiled the grievance, but he failed to do so. Id.
The plaintiff filed three additional grievances, grievance numbers 405, 435,
and 482, regarding the medical treatment he received at MOCC after he was stabbed.
Pl.’s Resp. Ex. J, at 2, 4–6. These grievances were timely filed and appealed all the
way to the commissioner level. Id. These grievances, however, were rejected by the
commissioner because the plaintiff failed to follow proper procedures. Def. Sandra
May’s Mot. Summ. J. Ex. 10, at 1 [ECF No. 215-10]. As explained with regard to
grievance number 414, when an inmate’s grievance is rejected because the inmate
failed to follow proper procedures, the inmate did not exhaust his or her
administrative remedies. Id. The plaintiff argues that these grievances should still
be considered exhausted, because (1) the plaintiff never received a response from the
commissioner, and (2) the commissioner did not follow DOC Policy Directive 335
when he failed to give a more in depth explanation as to which procedural
requirements the plaintiff failed to meet. Pl.’s Resp. 11–13.
First, the plaintiff alleges that grievance numbers 405, 435, and 482 should be
considered exhausted because the prison “interfered with [his] ability to exhaust by
failing to return grievances.” Pl.’s Resp. 11. Under the PLRA, prisoners must exhaust
“such administrative remedies as are available.” 42 U.S.C.A. § 1997e(a) (emphasis
added). Prisoners, however, “need not exhaust remedies if they are not ‘available.’”

Ross v. Blake, 136 S. Ct. 1850, 1855 (2016). “[A]n administrative remedy is not
considered to have been available if a prisoner, through no fault of his own, was
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prevented from availing himself of it.” Moore, 517 F.3d at 725. “Once the defendant
has made a threshold showing of failure to exhaust, the burden of showing that
administrative remedies were unavailable falls to the plaintiff.” Creel, 2017 WL
4004579, at *4. Since whether an administrative remedy has been exhausted for
purposes of the PLRA “is a question of law to be determined by the judge,” disputed
questions of fact are resolved by the court. Id.
The defendant has met her burden of proving that the plaintiff failed to
exhaust his administrative remedies. Thus, the next question is whether the plaintiff
has met his burden of proving that the remedies were unavailable. The court finds
that the plaintiff failed to sufficiently prove that his ability to exhaust his
administrative remedies was hindered because the commissioner failed to return his
grievances. See Hill v. O’Brien, 387 F. App’x. 396, 401 (4th Cir. 2010). The evidence
before the court is that the commissioner rejected the grievances and sent a letter
stating as much to the plaintiff through the warden, David Ballard, on June 11, 2013.
Def.’s Mot. Ex. 10, at 1 [ECF No. 215-10]. The plaintiff’s assertions stating otherwise
are simply unpersuasive. See Creel, 2017 WL 4004579, at *4 (“Unsubstantiated and
conclusory assertions by an inmate that prison officials thwarted pursuit of the
administrative process are insufficient to excuse failure to exhaust.”)
Second, the plaintiff argues that his administrative remedies were unavailable
because the commissioner’s explanation of why he rejected the grievances was
procedurally inadequate. When the Commissioner rejected the three grievances for
procedural deficiencies, he attached a memo stating:
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At this time the . . . grievances are being rejected as you
have failed to follow the proper procedure as outlined in
West Virginia Division of Corrections Policy Directive
335.00. Failure to follow the proper procedure will result in
rejection and no review will be undertaken in regards to
grievances filed outside of policy and procedure. Failure to
follow the proper procedure does not exhaust your
administrative remedies.
Def. Sandra May’s Mot. Summ. J. Ex. 10, at 1. The plaintiff argues that the
commissioner did not state which specific procedure was not followed, and therefore
did not give him the opportunity to correct the error. Pl.’s Resp. 12. This argument
also fails. The court simply cannot find that the administrative process was made
unavailable to the plaintiff by the commissioner failing to explain with specificity
which procedures the plaintiff did not follow. The plaintiff could have determined
which procedure he did not follow by reviewing the policy manual himself or asking
for more specific information. Under Section V(B)(4) of DOC Policy Directive 335, the
plaintiff then could have corrected his defective grievances and refiled them within
five days of the rejection. Policy Dir. No. 335, at 6. Thus, the administrative process
was available to the plaintiff.
I find that the defendant met her burden of proving that the plaintiff failed to
file and timely appeal any grievances regarding the defendant as required by the
PLRA and WVPLRA. I also find that the plaintiff failed to establish that the
administrative remedies at MOCC were made unavailable to him. Thus, the PLRA
and WVPLRA bar the plaintiff’s claims as to Defendant May. Even assuming,

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however, that the remedies were made unavailable to the plaintiff, summary
judgment would still be proper.
b. Deliberate Indifference
The defendant also argues that summary judgment is proper, because the
plaintiff did not proffer any evidence that creates a genuine issue of material fact that
the defendant violated the plaintiff’s Eighth Amendment rights.1 Def.’s Mem. 10.
“In order to prevail on a § 1983 claim, a plaintiff must show that the defendant
deprived him of a right secured by the Constitution and laws of the United States and
that the defendant acted under color of state law.”2 Lester, 85 F. Supp. at 858 (citing

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49 (1999). “The Eighth Amendment,
which applies to the States through the Due Process Clause of the Fourteenth
Amendment, prohibits the infliction of ‘cruel and unusual punishments’ on those
convicted of crimes.” Wilson v. Seiter, 501 U.S. 294, 297–98 (1991). In Estelle v.

There are multiple facts in dispute. First, the parties dispute whether the defendant listened to the
plaintiff’s lungs after he was stabbed. Pl.’s Resp. 4; Def.’s Mem. 2. Second, the parties dispute how
many times the defendant treated the plaintiff after he returned from the hospital. The plaintiff alleges
that the defendant treated him while he was in the infirmary and several times after he returned to
his cell. Pl.’s Resp. 5–6. The defendant, however, alleges that she only treated the plaintiff one time
after he returned from the hospital, on May 22, 2013. Def.’s Mem. 8. Third, the parties dispute whether
the defendant’s wounds became infected. The plaintiff maintains that it did, Sec. Amen. Compl. 18,
while the defendant maintains that it did not. Def.’s Reply 10. Lastly, the parties dispute whether the
plaintiff ever refused any of the medical treatment he was offered for his wounds. Def.’s Reply 17; Pl.’s
Resp. 19–20. Since the plaintiff is the non-moving party, the court will assume that the plaintiff’s
contentions on these issues are true in analyzing whether summary judgment is appropriate. Harris
v. Kinder, No. 2:13-10803, 2015 WL 631291, at * (S.D. W. Va. Feb. 12, 2015) (citing Charbonnages de
France v. Smith, 597 F.2d 406, 414 (4th Cir.1979)) (“[T]he party opposing the motion is entitled to
have his or her version of the facts accepted as true and, moreover, to have all internal conflicts
resolved in his or her favor.”).
2 The parties do not dispute that the defendant, a state contracted medical provider, was acting
under color of state law when she treated the plaintiff.
1

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Gamble, 429 U.S. 97, 97 (1976), the Supreme Court established that the Eighth
Amendment could be applied to deprivations that are not specifically part of the
sentence, but instead are suffered during imprisonment. Wilson, 501 U.S. at 297. The
Court has consistently held, however, that the Constitution “‘does not mandate
comfortable prisons’ and only those deprivations denying ‘the minimal civilized
measure of life's necessities,’ are sufficiently grave to form the basis of an Eighth
Amendment violation.” Id. at 298 (citations omitted).
“Under the Eighth Amendment, sentenced prisoners are entitled to ‘adequate
food, clothing, shelter, sanitation, medical care and personal safety.’” Kelly v. United

States, No. 1:15-04914, 2016 WL 8711519, at *11 (S.D. W. Va. Jan. 15, 2016)
(citations omitted), adopted by 2016 WL 1060846 (S.D. W. Va. Mar. 17, 2016). “[T]he
denial of medical care is cruel and unusual because, in the worst case, it can result in
physical torture, and, even in less serious cases, it can result in pain without any
penological purpose” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (citing Estelle,
429 U.S. at 103).
There is both an objective and subjective component to showing a violation of
the Eighth Amendment when the plaintiff is alleging that the defendant failed to
provide adequate medical treatment. IKO v. Shreve, 535 F.3d 225, 241 (4th Cir.
2008). “The plaintiff must demonstrate that the officers acted with ‘deliberate
indifference’ (subjective) to the inmate’s ‘serious medical needs’ (objective).” Id.
A serious medical need is “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
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recognize the necessity for a doctor's attention.” Id. (quoting Henderson v. Sheahan,
196 F.3d 839, 846 (7th Cir.1999)). The defendant concedes that the plaintiff had a
serious medical need. Def.’s Mem. 11. Thus, the only issue is whether the plaintiff
has made sufficient factual allegations to show that the defendant was deliberately
indifferent to his serious medical need.
“An officer is deliberately indifferent only when he ‘knows of and disregards’
the risk posed by the serious medical needs of the inmate.” IKO, 535 F.3d at 241
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). This means that “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.” King v.

United States, 536 F. App’x. 358, 361 (4th Cir. 2013) (quoting Farmer, 511 U.S. at
837). The Fourth Circuit has held that to constitute deliberate indifference to a
serious medical need, the treatment the defendant provided “must be so grossly
incompetent, inadequate, or excessive as to shock the conscience or to be intolerable
to fundamental fairness.” Id. (quoting Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir.
1990)).
It is well-settled that “mere negligence or malpractice does not violate the
[E]ighth [A]mendment.” Id. (quoting Miltier, 896 F.2d at 852); Estelle, 429 U.S. at
106 (“Medical malpractice does not become a constitutional violation merely because
the victim is a prisoner.”). Additionally, “[a]n inmate's disagreement with a medical
officer’s diagnosis or course of treatment will not support a valid Eighth Amendment

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claim.” Daye v. Proctor, No. 1:13-cv-227, 2015 WL 1021560, at *3 (N.D. W. Va. Mar.
4, 2015) (citing Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975)).
The plaintiff alleges that the defendant was deliberately indifferent to his
serious medical needs on the day of the stabbing as well as after he returned from the
hospital. As to the treatment he received on the day of the stabbing, the plaintiff
alleges that the defendant was deliberately indifferent by: (1) telling him that nothing
was wrong with him at first, (2) making him press his shirt into his wounds before
giving him a bandage, (3) not listening to his lungs despite his repeated statements
that he could not breathe, (4) not ordering his transport to the hospital until 2.5 hours
after he was stabbed, and (5) by transporting him to a hospital that did not have the
equipment necessary to treat his medical needs. Pl.’s Resp. 3–4.
The plaintiff alleges that the defendant was also deliberately indifferent to his
serious medical needs after he returned from the hospital by: (1) “refusing to follow
CAMC’s discharge orders, thereby denying [him] the medication and treatment plan
that CAMC had provided,” (2) “refus[ing] to provide [him] with fresh bandages to
redress his wounds,” (3) making him go up to three days at a time without providing
him the ability or materials to clean his wounds, and (4) refusing his requests to see
medical professions which resulted in his wounds becoming infected. Sec. Am. Compl.
17–18.
Even when drawing all permissible inferences in the light most favorable to
the plaintiff, no reasonable juror could conclude that the defendant was deliberately
indifferent to the plaintiff’s medical needs—that is that the defendant’s treatment
17

was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to
be intolerable to fundamental fairness.” King, 536 F. App’x. at 361 (citations omitted).
The defendant examined the plaintiff after he was stabbed and decided that he should
be taken to a hospital.3 The defendant then instructed a nurse to contact an
ambulance for the plaintiff to be transported to MGH, and to call MGH to inform its
staff that an inmate would be transported to the hospital in the near future. Def.’s
Mem. 2.
After the plaintiff returned from the hospital, he was monitored in MOCC’s
medical infirmary. Pl.’s Resp. 17. After being released from the infirmary, the
plaintiff continued to receive medical care including on April 4, April 5, April 11, April
16, April 24, May 2, May 21, May 22, May 24, June 11, and July 1. Def. Sandra May’s
Mot. Summ. J. Ex. 4–6. During these visits, the medical staff assisted the plaintiff
with cleaning his wounds and covering them with bandages. Id. The only issue here
is that the plaintiff disagrees with the defendant’s course of treatment. This does not,
however, support a valid Eighth Amendment claim. Daye, 2015 WL 1021560, at *3
(citations omitted). Since the plaintiff has failed to offer “concrete evidence from
which a reasonable juror could return a verdict in his . . . favor,” summary judgment
is proper. Anderson, 477 U.S. at 256.

The defendant maintains that it is Wexford protocol that all stab victims be sent to an outside
facility for further evaluation.
3

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V.

Conclusion
The plaintiff failed to exhaust his administrative remedies as required by the

PLRA and WVPLRA. Additionally, even if the plaintiff had exhausted his remedies,
or proven that the administrative remedies were unavailable to him, summary
judgment would still be proper because he failed to demonstrate that the defendant
was deliberately indifferent to his serious medical needs. Therefore, Defendant
Sandra May’s Motion for Summary Judgment is GRANTED.
The Clerk is DIRECTED to send a copy of this Order to counsel of record and
any unrepresented party.

`

ENTER: October 17, 2017

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