Skaggs v. Western Regional Jail et al

Filing 127

MEMORANDUM OPINION AND ORDER sustaining Plaintiff's 125 Objections and DECLINING to accept and incorporate the 121 Proposed Findings and Recommendations of the Magistrate Judge; DENYING Defendant's 117 Motion for Summary Judgment. Signed by Judge Robert C. Chambers on 3/31/2016. (cc: Magistrate Judge Tinsley; counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

SHELBY DEAN SKAGGS,
Plaintiff,
v.

CIVIL ACTION NO. 3:13-3293

MICHAEL CLARK, Administrator,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending is a Motion for Summary Judgment by Defendant Michael Clark, a jail
administrator (“Clark”), on inmate-Plaintiff Shelby Skaggs’s (“Skaggs”) Eighth Amendment
claim that Clark was deliberately indifferent to his serious medical need by confiscating Skaggs’s
medically necessary shoe and not returning it for nine months. ECF No. 117. This action, brought
pro se under 42 U.S.C. § 1983, was referred to a United States Magistrate Judge for proposed
findings of fact and recommendation for disposition (PF&R), pursuant to 28 U.S.C. §
636(b)(1)(B). The Magistrate Judge recommended granting Clark’s Motion for Summary
Judgment. ECF No. 121. Skaggs timely objected to the PF&R. ECF No. 125. For the reasons
below, the Court SUSTAINS Skaggs’s objections, DECLINES to adopt the Magistrate Judge’s
PF&R, FINDS Skaggs raised a genuine issue of material fact for trial, and DENIES Clark’s motion
for summary judgment.

I.

BACKGROUND

A. Plaintiff’s Complaint and Defendant’s Motion for Summary Judgment
Skaggs’s Eighth Amendment claim arises from Defendant Michael Clark’s confiscation of
an orthopedic shoe Skaggs wore on his left foot. After the shoe confiscation, Skaggs was forced
to use only his right orthopedic shoe and leg brace, which eventually wore-out as a result of the
added strain. After his right shoe and leg brace wore-out, Skaggs was confined to a wheelchair so
he could ambulate without pain. The facts viewed in a light most favorable to Skaggs are presented
in more detail below.
Since 1984 Skaggs has had to wear a leg brace due to a mining accident that broke his leg
and damaged his ankle. Pl.’s Resp. to Mot. to Dismiss, Ex. 1 at 1, ECF No 97–1 [hereinafter Ex.
1]. After the accident, one of Skaggs’s legs is shorter than the other, a condition for which Skaggs
requires special orthopedic shoes and a leg brace in order to walk evenly. Id.
In April 2012, Skaggs was admitted to the Western Regional Jail (the “Jail”) near
Barboursville, West Virginia. Upon his arrival at the Jail, Skaggs wore orthopedic shoes on each
foot with a medical brace on his right leg. Affidavit of Michael Clark at 1, ECF No. 117–1.
On April 21, 2012, Clark, the Jail’s administrator, ordered Correctional Officer Carver to
confiscate Skaggs’s left shoe for safety and security purposes, but for an unexplained reason, not
Skaggs’s right shoe or leg brace. Ex. 1 at 20; see also Affidavit of Michael Clark ¶ 4.1 The next
day, Clark consulted the medical unit, which was operated by PrimeCare medical, about the
medical necessity of the shoes and metal brace. Affidavit of Michael Clark ¶ 5. The medical unit
informed Clark that Skaggs should continue to wear the shoes and metal brace. Id. ¶ 5. The

On April 22, 2012, a medical staff member wrote in the medical log, “[i]nmate came up to med
cart, only has one boot. Officer Carver states, ‘Per Mike Clark, I put it in his personal belongings.’”
Ex. 1 at 20.
1

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conversation was recorded by a medical staff member at the Jail who wrote in the Jail’s medical
log that, “[f]or security purposes, Administrator Mike Clark asked if inmate needed both medical
boots. Per M.Bennett, Inmate is to have both boots d/t inmate has one leg shorter than the other.”
Ex. 1 at 20. Clark agreed with the medical assessment that Skaggs’s left orthopedic shoe was
medically necessary. But Clark maintains he was “under the impression and belief” that Skaggs
continued to wear both shoes and the metal brace, Affidavit of Michael Clark ¶ 5, even though
Clark had ordered the left shoe confiscated the day before he consulted the medical unit.
Around July 25, 2012, Skaggs reported to the Jail’s medical unit with his brace
malfunctioning, and a staff member instructed Skaggs to have his family return the brace for repair,
as the staff member believed the brace was under warranty. Ex. 1 at 5, 8. A medical staff member
also sent Skaggs a note informing him that the Jail was not responsible for replacing his broken
right shoe. Id. at 8.2 At the same time, the staff member recorded in the Jail’s medical log that
Skaggs required an orthopedic shoe on his left foot to correct his leg length discrepancy. Id. at 5.
Over the course of several months in late 2012, Skaggs submitted several grievances and
sick call requests about his leg condition. On October 23, 2012, Skaggs submitted to Clark an
inmate grievance stating he would like to have his left shoe returned to him because his back and
knees were starting to hurt badly. Ex. 1 at 19, 18. The portion of the form titled
“Response/Disposition” is blank, as is true with some of the other grievance forms submitted by
Skaggs. Id. On November 21 and 22, 2012, Skaggs submitted a sick call request to PrimeCare
Medical because his right shoe and brace needed to be repaired or replaced at that time. Ex. 1 at

The note, signed by the medical department, reads in its entirety, “[w]e do not supply shoes[,]
even though you[‘re] diabetic. You are responsible for them. They can be purchased off
commissary.”
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12, 18. On December 12, 2012, Skaggs made another sick call request due to pain in his back and
legs. Ex. 1 at 16.
On December 21, 2012, Skaggs sent a letter to the West Virginia Regional Jail and
Correctional Facility Authority (the “Authority”) explaining his need for medical services. Ex. 1
at 1. In his letter, Skaggs explained that an administrator at his facility confiscated his left shoe
eight months before the date of the letter. Id. Skaggs explained further that he had asked and filed
grievances to get his shoe back, to no avail. Id. At the time of the letter, Skaggs’s brace and shoe
were both becoming worn-out. Id. He explained to the Authority that he had asked the Jail to fix
or replace the right shoe and brace; but the Jail Administrator had not responded, and the medical
unit had informed him that because his condition existed prior to his being taken into custody at
the Jail, Skaggs would need to wait until he got to prison to have these medical devices fixed or
replaced. Id. Skaggs reported to the Authority that he had pain in his back and both legs because
of having to walk without his left shoe. Id. To treat the pain caused by his walking without an
orthopedic shoe on his left foot, the medical staff provided Tylenol and ibuprofen to Skaggs. Id.
According to Skaggs, however, this was ineffective at alleviating his backache. Id. Skaggs also
complained that he received a shoulder and arm injury from Correctional Officer Berlin slamming
a steel door against him while he was in a wheelchair and entering the medical unit in December
2012. Id.3 To treat his arm and shoulder injury, Skaggs had asked for an x-ray, but the Jail failed
to provide one. Id. Skaggs reported losing strength in his arm and feeling “a good deal” of pain.
Id. As a final plea for medical assistance from the Authority, Skaggs asked to have his shoe and
brace fixed or replaced, to have his left shoe returned so he could be on even footing with the other

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Officer Berlin was previously dismissed from this action.
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shoe and brace, to see an orthopedic doctor and have an x-ray for his arm and shoulder injury, and
for medication to treat the pain he experienced. Id.
After Skaggs’s letter to the Authority, medical staff at the Jail ordered an X-Ray on January
7, 2013. Ex. 1 at 4. However, the Jail did not return Skaggs’s left shoe, nor did staff repair or
replace Skaggs’s right shoe or leg brace.
On January 2, 2013, Skaggs submitted another sick call request to PrimeCare Medical,
stating that he needed to see a doctor about pain in his back, legs, and right shoulder. Ex. 1 at 21.
Skaggs was evaluated by Jail medical staff on January 6, 2013. Def.’s Mot. for Summ. J. at 2, ECF
No. 117; Exs. D, E, ECF Nos. 117–4, 117–5. During the visit, medical staff took away the right
orthopedic shoe and leg brace because both were broken down. Skaggs was provided a wheelchair
until the medical administrator could evaluate the right shoe and brace. The next day, Skaggs
explained to medical staff that his family would not pay for the replacement.
On February 22, 2013, Skaggs brought suit pro se under 42 U.S.C. § 1983 against Clark
and others now-dismissed from this action. Compl. 1, ECF No. 2. In his Amended Complaint filed
almost a year later, Skaggs alleges Clark, along with other Jail officials, was deliberately
indifferent to his serious medical need in violation of the Eighth Amendment by confiscating
Skaggs’s left orthopedic shoe for at least nine months, which caused Skaggs leg and back pain
during the period before he was provided a wheelchair. ECF Nos. 2, 80.
On June 19, 2015, Clark filed a Motion for Summary Judgment. ECF No. 117. Skaggs filed
a Response on July 6, 2015. ECF No. 119. In his response, Skaggs pointed to several documents
he produced during discovery to factually support his Eighth Amendment Claim against Clark.
One of those documents is the log of April 22, 2012 medical notes indicating Clark ordered the
confiscation of Skaggs’s left shoe, and Clark was later informed by medical staff the shoe was

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medically necessary. Ex. 1 at 20. Another document Skaggs referenced is the October 23, 2012
inmate grievance form submitted to Clark and signed by Skaggs, which states, “I would like to get
my shoe back because my back and knees are really starting to hurt bad [sic].” Ex. 1 at 19. Clark
filed a Reply on July 13, 2015, ECF No. 120. Clark’s Motion for Summary Judgment was referred
to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B).
B. Magistrate Judge’s Proposed Findings and Recommendations
The Magistrate Judge, after reviewing arguments and evidence presented by both Parties,
proposed finding that “undisputed evidence of record fails to establish a genuine issue of material
fact concerning the conduct of Clark that would sufficiently give rise to an Eighth Amendment
Claim.” PF&R 10, ECF No. 121. With regard to a serious medical need, the Magistrate Judge
stated Skaggs “has not provided sufficient argument to overcome the presiding District Judge’s
prior legal finding that his condition does not rise to the level of a serious medical need.” 4 Id. As
for the deliberate indifference prong, the Magistrate Judge stated that Skaggs had failed to produce
evidence Skaggs maintained would support finding deliberate indifference, namely a grievance

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In a previous order dismissing other individuals from the suit, the Court made a cursory statement
suggesting without analysis that Plaintiff’s leg condition did not rise to the level of a serious
medical need for purposes of the Eighth Amendment. Skaggs v. Clark, No. 13-3293, 2015 WL
269154, at *5 (S.D.W. Va. Jan. 21, 2015), ECF No. 111. The Court, however, provided a different
basis for granting Defendant Dr. Wong’s motion for summary judgment, namely Skaggs’s failure
to produce evidence that Dr. Wong was deliberately indifferent. Instead of showing deliberate
indifference, the evidence showed conclusively that Dr. Wong prescribed medication to ease
Skaggs’s pain and discomfort and ordered diagnostic testing. Because Skaggs failed to show Dr.
Wong was deliberately indifferent, the Court concluded that Skaggs had no Eighth Amendment
claim against Dr. Wong. Thus, the actual basis for granting summary judgment in Dr. Wong’s
favor was not the seriousness of Skaggs’s medical condition, but rather the lack of deliberate
indifference on Dr. Wong’s part. The Court’s statement about Skaggs’s medical condition is mere
dicta. In its previous order, the Court never analyzed whether, as a matter of law, Skaggs failed to
present evidence of a serious medical need. As such, that issue is preserved for the present motion
for summary judgment brought by Clark.
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form dated October 23, 2012.5 Id. As such, the Magistrate Judge recommended finding Skaggs
failed to dispute an affidavit by Clark that he was unaware of Skaggs’s orthopedic shoe deprivation
until filing of this lawsuit. Id.; see also Affidavit of Michael Clark ¶ 7. On this basis, the Magistrate
Judge concluded that Skaggs might be able to establish Clark was negligent in failing to ensure
the shoe was returned to Skaggs, but that negligence is insufficient to establish an Eighth
Amendment claim. Id. Additionally, the Magistrate Judge recommended finding Clark is entitled
to qualified immunity, presumably on the basis that Skaggs failed to produce evidence showing an
Eighth Amendment violation. Id. Accordingly, the Magistrate Judge recommended granting
Clark’s motion for summary judgment on Skaggs’s Eighth Amendment claim. Id. at 10–11.
C. Plaintiff’s Objections
Skaggs timely objected to the findings and recommendations of the Magistrate Judge on
February 9, 2016. ECF No. 125. In his Objections, Skaggs states the Magistrate Judge failed to
consider evidence Skaggs produced in response to Clark’s motion for summary judgment on
Skaggs’s Eighth Amendment claim. Id. at 2.
The facts Skaggs points to in support of finding a serious medical need include: (1)
Skaggs’s medical condition was treated by special orthopedic shoes and braces ordered by a
physician at Orthoclinic, PC on July 23, 2010, ECF No. 125 at 8; and (2) once Skaggs’s left shoe
was confiscated by Clark on April 21, 2012, Skaggs experienced leg and back pain, and after his
other orthopedic shoe and leg brace were taken on January 6, 2013, he required a wheelchair to
ambulate, ECF No. 97–1 at 20; ECF Nos. 117–4, 117–5.

5

The Court notes this statement by the Magistrate Judge is in error because the electronic docket
sheet indicates that on June 3, 2014, before the Magistrate Judge issued his PF&R, Skaggs filed
the October 23, 2012 grievance form supporting his deliberate indifference allegation. Ex. 1 at 19,
ECF No. 97–1.
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The facts Skaggs points to in support of finding Clark was deliberately indifferent include:
(1) the April 22, 2012 medical notes stating “Inmate came up to med cart, only has one boot.
Officer Carver states, ‘Per Mike Clark, I put it in his personal belongings’” and “[f]or security
purposes, Administrator Mike Clark asked if inmate needed both medical boots. Per M.Bennett,
Inmate is to have both boots d/t inmate has one leg shorter than the other,” Ex. 1 at 20; (2) the
October 23, 2012 inmate grievance form Skaggs filed with Clark, in which Skaggs said “I would
like to get my shoe back because my back and knees are really starting to hurt bad [sic], ” Ex. 1 at
19; and (3) Clark agreed that Skaggs should continue to wear both shoes and the brace yet failed
to ensure the left shoe was returned to Skaggs after Clark had it confiscated, and instead, Clark
claimed he did not know the shoe was not returned to Skaggs until this lawsuit was filed on
February 22, 2013. Obj. at 4.
Having summarized the facts taken in a light most favorable to Skaggs and the procedural
posture of this case, the Court will next explain the legal standard, discuss the proposed findings
and recommendation, and analyze Clark’s motion for summary judgment.
II.

Standard of Review and Legal Standard

This Court conducts a de novo review of those portions of the magistrate judge’s proposed
findings and recommendations to which a party objects. 28 U.S.C. § 636(b)(1)(C) (“A judge of
the court shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. A judge of the court may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate.”). The
Court, however, is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendations
to which no objections are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).

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To obtain summary judgment, the moving party must show that there is no genuine issue
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). 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. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
The nonmoving party nonetheless must offer some “concrete evidence from which a
reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256. 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. v. Catrett, 477 U.S. 317, 322-23-2- (1986). 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.
III.

Discussion

For the reasons explained below, the Court grants Skaggs’s Objections to the Magistrate
Judge’s PF&R and declines to adopt it, finds Skaggs raised triable issues of fact on his Eighth
Amendment claim, and denies Clark’s motion for summary judgment. Clark claims he is entitled
to summary judgment in his favor because Skaggs has not shown an Eighth Amendment violation
based on Clark being deliberately indifferent to a serious medical need of Skaggs, and because
even if evidence shows an Eighth Amendment violation, Clark is nonetheless entitled to qualified
immunity from suit. The Court considers the PF&R and Defendants two arguments in turn.

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A. Magistrate Judge’s PF&R
Despite the Magistrate Judge’s hard work on this drawn-out proceeding, declining to adopt
the PF&R is appropriate here for at least three reasons. First, the Magistrate Judge applied the
incorrect standard on a motion for summary judgment, proposing findings based on the
“undisputed evidence,” rather than evidence viewed in a light most favorable to the non-moving
party, Skaggs. PF&R at 10 (“Based upon the undisputed evidence of record, at most, the plaintiff
might be able to establish that defendant Clark was negligent in failing to ensure that the plaintiff’s
left shoe was returned to him. Negligence is insufficient to establish an Eighth Amendment
claim.”) (emphasis supplied); id. (proposing “the presiding District Judge find that the undisputed
evidence of record fails to establish a genuine issue of material fact concerning the conduct of
defendant Clark that would sufficiently give rise to an Eighth Amendment claim) (emphasis
supplied). In this case, there are several disputed facts that are material to Skaggs’s Eighth
Amendment claims, such as the dispute over when Clark became aware that Skaggs was without
his left orthopedic shoe. Skaggs contends and supports with evidence an inference that Clark knew
as of April 21, 2012 that he had deprived Skaggs of his left shoe and that Clark was reminded of
this at least once by inmate grievance filed in October 2012. Clark, on the other hand, maintains
he was unaware of the shoe deprivation until the commencement of this action on February 22,
2013. From the Magistrate Judge’s PF&R recommending a finding based on the “undisputed
evidence of record,” it is unclear that the Magistrate Judge made his recommendation based on
viewing the evidence in a light most favorable to Skaggs.
Second, the Magistrate Judge failed to analyze whether Skaggs’s condition requiring
orthopedic shoes to walk without pain presented a serious medical need. Instead, the Magistrate
Judge relied upon dicta in a previous ruling by the presiding judge. See n.4 supra and

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accompanying text. Because the deliberate indifference question is closer as to Clark than it was
for Dr. Wong, the serious medical need question requires more detailed analysis.
Lastly, the Magistrate Judge seems to have overlooked evidence Skaggs produced to the
Court prior to the Magistrate Judge’s PF&R, and which supported a finding of deliberate
indifference. 6 Compare PF&R at 10 (“The plaintiff has not produced the October 23, 2012
grievance which he maintains will support a finding of deliberate indifference by defendant Clark,
or any other competent evidence to dispute Clark’s Affidavit.”), with Ex. 1 at 19 (October 23, 2012
grievance filed by Skaggs prior to PF&R being issued).
Together, these errors on the Magistrate Judge’s part, although understandable given the
lengthy record compiled in this case, require a closer inquiry by this Court into Skaggs’s Eighth
Amendment Claim and Clark’s qualified immunity defense. For the reasons explained above, the
Court grants Skaggs’s objections to the Magistrate Judge’s PF&R and declines to adopt the
findings and recommendations made in the PF&R.
B. Eighth Amendment Claim for Deliberate Indifference to Serious Medical Need
The United States Constitution’s Eighth Amendment Cruel and Unusual Punishment
Clause, incorporated to the States through the Fourteenth Amendment Due Process Clause,
imposes certain duties on prison and jail officials, including requiring them to ensure that inmates
receive adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 832
(1994) (citations omitted). To state a cognizable claim for denial of medical care under the Eighth
Amendment, an inmate must allege facts sufficient to demonstrate deliberate indifference to a
Skaggs complains that the Magistrate Judge’s “disavow[ing] the existence and receipt of
Skaggs’s grievance,” evidences a “note of bias.” Obj. at 5, ECF No. 125. Skaggs presents no other
evidence or arguments that the Magistrate Judge was biased in anyway. For that reason, the Court
finds the Magistrate Judge’s failure to consider the grievance is the sort of mistake made as a result
of reasonable inadvertence amidst a heavy caseload, and not any indication that the Magistrate
Judge was biased against Skaggs.
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serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Jail officials violate the Eighth
Amendment by failing to meet inmates’ serious medical needs only when two requirements are
met: First, objectively the deprivation must be sufficiently serious, i.e., there must be a medical
need that is serious; second, subjectively the jail official must have a sufficiently culpable mental
state, i.e., deliberate indifference. Farmer, 511 U.S. 825 at 834; Johnson v. Quinones, 145 F.3d
164, 167 (4th Cir. 1998) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)); see also Samples v.
Lewis, No. 13-657, 2014 WL 66573, at *5-6 (D.S.C. Jan. 8, 2014). Here, Skaggs claims a jail
official, Clark, was deliberately indifferent to his serious medical need by confiscating his
medically necessary shoe for at least nine months.
1. Serious Medical Need
As an initial matter, Clark mistakenly points to a previous order of this Court that suggests,
in passing, that Skaggs’s leg condition does not rise to the level of a serious medical need for
purposes of an Eighth Amendment claim. Although the Court’s order dismissing other individuals
from the suit made a cursory statement suggesting such without any analysis, the Court did not
purport that lack of a serious medical need was the basis of its dismissal; instead, the Court
analyzed the lack of deliberate indifference on the part of the now-dismissed defendant. Skaggs,
2015 WL 269154, at *5. In other words, Clark relies on dicta. In its previous order, the Court never
analyzed whether, as a matter of law, Skaggs’s condition failed to present a serious medical need.
See id. As such, that issue is preserved for the present motion for summary judgment.
Under the objective prong of an Eighth Amendment ineffective medical assistance claim,
the plaintiff must produce evidence that his or her medical need was “serious.” In Estelle, the
Supreme Court recognized that medical needs constitutionally requiring treatment by prison
officials ranged from the “worst cases,” producing “physical torture or a lingering death,” to “less

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serious cases,” resulting from the “denial of medical care,” which could cause “pain and suffering.”
Estelle, 429 U.S. at 103.7 Given the fact-specific nature of Eighth Amendment denial of medical
care claims, it is difficult to formulate a precise standard of “seriousness” capturing those medical
conditions within the realm of Eighth Amendment concern and excluding those conditions that are
not. Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003) (citation omitted). However, courts
interpreting Estelle have recognized that “[m]edical needs of inmates need not be considered ‘life
threatening’ to be considered serious.” Washington v. Dugger, 860 F.2d 1018, 1021 (11th
Cir.1988). The Fourth Circuit and most others agree that a condition presents a serious medical
need if it has been “diagnosed by a physician as mandating treatment” or is “one that is so obvious
that even a lay person would easily recognize the necessity for a doctor's attention.” Iko v. Shreve,
535 F.3d 225, 241 (4th Cir. 2008); Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997); Riddle
v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996); Sheldon v. Pezley, 49 F.3d 1312, 1316 (8th
Cir. 1995); Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994); Gaudreault
v. Mun. of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990), cert. denied, 500 U.S. 956 (1991);

7

Specifically, the Court, per Justice Marshall, held and reasoned:
[T]he government[ has an] obligation to provide medical care for
those whom it is punishing by incarceration. An inmate must rely on
prison authorities to treat his medical needs; if the authorities fail to
do so, those needs will not be met. In the worst cases, such a failure
may actually produce physical “torture or a lingering death . . . .” In
less serious cases, denial of medical care may result in pain and
suffering which no one suggests would serve any penological
purpose. The infliction of such unnecessary suffering is inconsistent
with contemporary standards of decency as manifested in modern
legislation codifying the common-law view that “(i)t is but just that
the public be required to care for the prisoner, who cannot by reason
of the deprivation of his liberty, care for himself.”

Estelle, 429 U.S. at 103–04.
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Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). A condition may
also be serious when delay or denial of treatment causes “unnecessary and wanton infliction of
pain” or life-long disability. Lanzaro, 834 F.2d at 347 (quoting Estelle, 429 U.S. at 103). In
considering a motion for summary judgment, one federal district court sitting in West Virginia has
held that a medical need may be serious because it requires treatment, causes chronic pain, and
affects the prisoner's daily activities. Finley v. Trent, 955 F.Supp. 642, 646 (N.D.W. Va. 1997).
Furthermore, “several courts have recognized that a medical condition which threatens a
plaintiff's ability to walk, even on a non-permanent basis, [constitutes] a serious medical need.”
Taylor v. Plousis, 101 F. Supp. 2d 255, 262 (D.N.J. 2000) (citing Kaufman v. Carter, 952 F.Supp.
520, 527 (W.D. Mich. 1996) (“A medical condition that threatens one's ability to walk, even if
ultimately reversible, is unquestionably a serious matter.”); Johnson v. Hardin Cty., 908 F.2d 1280,
1283–84 (6th Cir. 1990) (holding that defendant's refusal to provide inmate with crutches
supported claim of deliberate indifference)); see also Shakka v. Smith, 71 F.3d 162, 167 (4th Cir.
1995) (“We do not doubt that the failure to provide a wheelchair for an inmate may constitute
deliberate indifference to a serious medical need in some circumstances”); LaFaut v. Smith, 834
F.2d 389, 393-94 (4th Cir. 1987) (holding Eighth Amendment violated when prison delayed for
eight months providing for basic needs of paraplegic prisoner, including ambulatory therapy);
Parzyck v. Prison Health Servs., Inc., 290 F. App'x 289, 291 (11th Cir. 2008) (finding serious
medical need where foot condition caused extreme pain that prevented prisoner from walking
normally); Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir.1990) (painful broken foot constituted
serious medical need); Mandel v. Doe, 888 F.2d 783, 788 (11th Cir. 1989) (holding injured leg
that made it painful and virtually impossible to walk constituted serious medical need); Reynolds
v. Barnes, 84 F. App'x 672, 674 (7th Cir. 2003) (“broken foot constitutes an objectively serious

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medical condition”); Petties v. Carter, 795 F.3d 688, 693 (7th Cir. 2015), reh'g en banc granted,
opinion vacated (Oct. 15, 2015) (Williams, J dissenting to panel decision) (“no dispute that
[prisoner’s] Achilles tendon rupture was objectively serious.”); Smith v. Goss, No. 10-01814, 2015
WL 1249871, at *3 (E.D. Cal. Mar. 18, 2015) R. & R. adopted sub nom., Smith v. Allison, No. 1001814, 2015 WL 3466529 (E.D. Cal. June 1, 2015) (serious medical need pled where plaintiff had
foot condition making it painful to walk without orthopedic shoes); Gonzalez v. Bopari, No. 121053, 2014 WL 6925750, at *3 (E.D. Cal. Dec. 9, 2014) (finding serious medical need pled where
plaintiff was amputee whose ill-fitting prosthetic caused him to fall and prevented him from
walking more than five feet); Miller v. Rao, No. 08-2469, 2013 WL 6240672, at *6 (W.D.N.Y.
Dec. 3, 2013) (plaintiff's medical need for orthotics correction due to pain in hip and knee,
aggravated by denial of previously-prescribed orthotic footwear, was serious medical need);
Giambalvo v. Sommer, 2012 WL 4471532, at *5 (S.D.N.Y. Sep. 19, 2012) (finding prisoner’s
medical condition was serious because he required medical shoes to walk); Mahoney v. Schweitzer,
2010 WL 1707734, *1 (D. Mont. Jan. 26, 2012) (noting “knee injury affecting [p]laintiff's ability
to walk may be a serious need,” but dismissing complaint on deliberate indifference grounds);
Harris v. Hershey Med. Ctr., No. 08-843, 2009 WL 2762732, at *5 (M.D. Pa. Aug. 27, 2009)
(finding serious medical need where chronic leg and back pain, for which plaintiff had been
previously prescribed therapy and medication, caused plaintiff to walk with a cane); Duarte v.
Wong, No. 05-01374, 2007 WL 2782940, at *4 (N.D. Cal. Sept. 24, 2007) (finding triable issue
on whether fractured foot constituted serious medical need where physician ordered special shoe
and prescribed pain medication, and where pain prevented plaintiff from bearing full weight on
foot and significantly affected ability to walk); Ruffin v. Deperio, 97 F. Supp. 2d 346, 352
(W.D.N.Y. 2000) (finding serious medical need when diabetic plaintiff’s foot injury caused

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difficulty walking and severe constant pain); but see Haverty v. Crosby, No. 05-00133, 2006 WL
839157, at *5 (N.D. Fla. Mar. 28, 2006) (3/4-inch disparity in length of plaintiff's legs is not serious
medical need).
For at least two reasons, Skaggs has presented evidence that his condition, requiring a
special orthopedic shoe to walk normally and without pain, amounted to a serious medical need.
First, Skaggs produced an orthopedic clinic’s letter dated July 23, 2010 which recommended that
Skaggs wear an ankle/foot orthotic to treat his condition. Thus, under the standard employed by
the Fourth Circuit and most others, Skaggs’s medical need was serious because his condition was
diagnosed by a doctor as needing treatment. See Iko, 535 F.3d at 241; Gutierrez, 111 F.3d at 1373;
Riddle, 83 F.3d at 1202; Sheldon, 49 F.3d at 1316; Hill, 40 F.3d at 1186; Gaudreault, 923 F.2d at
208; Lanzaro, 834 F.2d at 347.
Second and more fundamentally, Skaggs’s leg condition constitutes a serious medical need
because it affected his ability to walk normally and without pain. Skaggs’s leg condition, untreated
by an orthopedic shoe on his left foot, caused him such daily leg and back pain that he was unable
to walk normally. Walking without his left shoe caused his right shoe and leg brace to become
worn-out. Ultimately, he was confined to a wheelchair because he experienced leg and back pain
when walking without the aid of his orthopedic shoes and leg brace. Because Skaggs experienced
pain walking without his left orthopedic shoe and ultimately required use of a wheelchair when
both of his shoes were unavailable to him, his medical need was serious for purposes of the Eighth
Amendment. See Taylor, 101 F. Supp. 2d at 262; Ruffin, 97 F. Supp. 2d at 352; Giambalvo, 2012
WL 4471532 at *5; Goss, 2015 WL 1249871, at *3, Gonzalez, 2014 WL 6925750, at *3; Rao,
2013 WL 6240672, at *6; Harris, 2009 WL 2762732, at *5; Duarte, 2007 WL 2782940, at *4; see
also LaFaut, 834 F.2d at 393-94; Parzyck, 290 F. App'x at 291; Mandel, 888 F.2d at 788.

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Support for this conclusion is found in Giambalvo v. Sommer, where a federal district court
in New York considered a set of facts quite similar Skaggs’s case and found the medical condition
was serious because the prisoner required medical shoes to walk. 2012 WL 4471532 at *5
(S.D.N.Y. Sep. 19, 2012). In Giambalvo, the plaintiff suffered severe and degenerative foot pain
and had difficulty walking without medical shoes. Id. A podiatry specialist recommended plaintiff
use medical shoes as a part of treatment for his foot pain. Id. The prisoner was denied medical
shoes by the prison, and as a result, he suffered with each step and sustained injuries, resulting in
a slip and fall accident and in his confinement to a wheelchair. Id. The district court held the
plaintiff presented a serious medical need because “[m]obility is fundamental to our continued
health, and the denial of reasonable care that could prevent the loss of the ability to circumambulate
is indeed serious.” Id. In this case, Skaggs, due to his leg length discrepancy caused by a mining
accident, has difficulty walking without his medically prescribed orthopedic shoes, which help
him walk evenly and without pain. See Ex. 1 at 1, 5, 16, 18–20. When he was denied his left
orthopedic shoe, Skaggs experienced leg and back pain, prematurely wore-out his orthopedic right
shoe and leg brace, and eventually was confined to a wheelchair. The Court finds Skaggs’s medical
condition requiring orthopedic shoes in order to walk evenly and without pain is similar to the
Giambalvo plaintiff’s need for medical shoes, and therefore, Giambalvo lends further support for
finding that Skaggs’s medical condition is serious for purposes of the Eighth Amendment.
Construing the facts in a light most favorable to Skaggs, the Court cannot agree with the
Magistrate Judge that Skaggs has failed to show he suffered a serious medical need. Skaggs
presented evidence that his condition was diagnosed by a physician as requiring treatment, that his
condition, when untreated, caused unnecessary infliction of pain, and that his condition threatened
his ability to walk. As explained above, courts have held that any one of these three circumstances

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makes a condition sufficiently serious for purposes of the Eighth Amendment. As such, Clark’s
motion for summary judgment is not warranted on the serious medical need prong.
2. Deliberate Indifference
Clark next argues Skaggs has failed to produce evidence showing Clark was deliberately
indifferent.
To satisfy the subjective prong of an Eighth Amendment ineffective medical assistance
claim, the plaintiff must produce evidence that jail staff exhibited “deliberate indifference.” In
Farmer v. Brennan, the Supreme Court defined the term deliberate indifference. 511 U.S. 825, 832
(1994). Under the Eighth Amendment, acting with deliberate indifference to an inmate’s serious
medical need means subjectively recklessly disregarding that need, in other words knowing of an
inmate’s serious medical need and disregarding that need by either taking certain actions or failing
to take reasonable measures to meet the need. See Farmer, 511 U.S. at 836, 842. Deliberate
indifference is more than mere negligence but less than acting for the purpose of causing harm or
with knowledge that harm will result. Farmer, 511 U.S. at 835–36. Under the deliberate
indifference subjective recklessness standard, jail officials violate the Eighth Amendment by
failing to meet an inmate’s serious medical need only if the official (1) was aware of facts
supporting an inference that a medical need exists, and (2) the official drew the inference. Id. at
837. An official’s failure to alleviate a serious medical need that the official should have perceived
but did not cannot violate the Eighth Amendment. Id. at 838 (emphasis supplied).
The Eighth Amendment deliberate indifference standard is consistent with the concept of
constructive knowledge, and a jail official may be charged with constructive knowledge of a
serious medical need if the official’s awareness can be presumed from the need’s obviousness. Id.
at 840. Whether the jail official had the requisite knowledge of a serious medical need is a fact

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question subject to demonstration in the usual ways, including inference from circumstantial
evidence, and a factfinder may conclude that a jail official knew of a serious medical need from
the very fact that the risk was obvious. See id. at 842 (citations omitted) (explaining difference
between requisite mental state and proof of its existence). For example, where evidence shows a
defendant-official being sued was exposed to information about the serious medical need, and thus
must have known about it, then such evidence is sufficient to permit a trier of fact to find the
defendant-official had actual knowledge of the medical need. See id. at 842–43.
Construing the facts and inferences in a light most favorable to Skaggs, a reasonable juror
could conclude Clark was deliberately indifferent. In his defense that he was not deliberately
indifferent, Clark states he first became aware Skaggs was without his left orthopedic shoe when
Skaggs filed the instant lawsuit. Affidavit of Michael Clark ¶ 7. However, the medical note dated
April 22, 2012 and the October 2012 inmate grievance, taken in a light most favorable to Skaggs,
contradict Clark’s alleged ignorance, and they demonstrate that not only was Clark aware of
Skaggs’s orthopedic shoe deprivation for over nine months, but he was reminded of the deprivation
at least once in the middle of that time period. Ex. 1 at 19, 20. 8 In the context of jails, the
administrator giveth, and the administrator taketh. If Clark ordered the left orthopedic shoe
confiscated to investigate it as a security threat, then Clark—after learning the shoe was medically
necessary and posed no security threat—would have needed to order the shoe returned in order for
Skaggs’s medical needs to be met. A reasonable juror can infer from the circumstances that Clark
actually knew the shoe would remain confiscated until he ordered it returned. Clark, however,
failed to order return of the confiscated left orthopedic shoe—nor did he provide Skaggs an

The April 22, 2012 medical note states the left shoe was confiscated on Clark’s order. Ex. 1 at
20. And in the October 23, 2012 grievance to Clark, Skaggs stated he would like to get his left
shoe back because his back and knees were starting to hurt badly. Ex. 1 at 19.
8

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alternative remedy such as a wheelchair—which in turn unnecessarily deprived Skaggs of his
medically required shoe for over nine months. If a jail official confiscates a device from an inmate
and later becomes aware the device is medically necessary to the inmate, then the official is aware
the inmate has an unmet serious medical need while the device remains confiscated.9 See Nunn v.
Keller, No. 10-3211, 2014 WL 1267043, at *10 (E.D.N.C. Mar. 26, 2014) (no deliberate
indifference shown, despite one-month delay in providing medical boots previously confiscated,
where staff was confused about who would provide boots and no evidence indicated deliberate
misconduct by staff). Furthermore, Clark must have actually known that his response—failing to
return the orthopedic shoe, despite Skaggs’s October 2012 reminder and plea—was inadequate to
address Skaggs’s medical needs. Iko, 535 F.3d at 242. As an inmate, Skaggs had no recourse to
retrieve his medically necessary shoe, other than to request it back from Clark and grieve to him,
which Skaggs did to no avail. Although there is no evidence that Clark knew Skaggs was ultimately
confined to a wheelchair due to the deprivation, the record construed in a light most favorable to
Skaggs permits a factfinder to conclude that Clark was deliberately indifferent because he was
aware for a period of nine months that Skaggs remained deprived of his medically necessary left
orthopedic shoe, and he knew for several months that this deprivation caused Skaggs pain. See Iko,
535 F.3d at 243 (“Because [plaintiff’s] needs were objectively serious and the officers were
subjectively aware of that seriousness and chose to do nothing, the officers' actions . . . violated
[plaintiff’s] Eighth Amendment right to adequate medical care”).

Perhaps Clark was aware that Skaggs’s shoe was medically necessary but forgot that he had
ordered Skaggs’s shoe confiscated. Not only is such an inference not favorable to Skaggs, and thus
inappropriate for the Court to draw in resolving a motion for summary judgment, but also,
Farmer’s deliberate indifference subjective recklessness standard does not contemplate a prison
or jail official’s forgetfulness as an escape from Eighth Amendment liability. A jail official’s
forgetting that he or she deprived an inmate of necessary medical treatment is not a pathway to
unawareness for purposes of Farmer.
9

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Additionally, the deliberate indifference displayed by Clark differs from the deliberate
indifference alleged but not found in Johnson v. Quinones and Wester v. Jones, two cases the
Magistrate Judge relied upon in his PF&R. PF&R 6–7. In Johnson, the Fourth Circuit found no
Eighth Amendment liability because although the prisoner presented evidence that prison doctors
had general knowledge of the prisoner’s symptoms and of the risk for a tumor, the prisoner failed
to put forth evidence that the doctors drew an inference from the symptoms that the prisoner had
the tumor from which he suffered. Johnson v. Quinones, 145 F.3d 164, 169 (4th Cir. 1998). The
Fourth circuit reached a similar conclusion in Wester, finding only medical negligence and
therefore no Eighth Amendment violation. Wester v. Jones, 554 F.2d 1285, 1286 (4th Cir. 1977).
Here, a reasonable factfinder could conclude that Clark acted with deliberate indifference, first by
finding that Clark was aware of Skaggs’s serious medical need because Clark was informed of
such by the medical unit, and second by finding that Clark consciously disregarded that need
because Clark failed to take any action to reverse his previous order confiscating Skaggs’s left
orthopedic shoe. That Skaggs grieved directly to Clark in October 2012 about his still-confiscated
shoe is further evidence of Clark’s deliberate indifference. Clark did not even need to draw an
inference that Skaggs remained deprived of his shoe; such would be obvious to Clark under
circumstances where he was the one who ordered the shoe confiscated in April and was reminded
by Skaggs in October that the shoe remained confiscated.
Viewing the evidence in a light most favorable to the non-moving party, the Court holds
Skaggs has presented evidence to support his Eighth Amendment claim that Clark was deliberately
indifferent to Skaggs’s serious medical need. Confiscating a medically necessary shoe and failing
to ensure it is returned, followed by failing for months to provide an alternative medical remedy—
such as a wheelchair, constitutes the sort of deliberate indifference to an inmate’s serious medical

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needs the Eighth Amendment proscribes. As the Supreme Court noted in Estelle, “[i]t is but just
that the public be required to care for the prisoner, who cannot by reason of the deprivation of his
liberty, care for himself.” Estelle, 429 U.S. at 103–04. Because Skaggs has produced evidence that
Clark violated his Eighth Amendment right to medical assistance, Clark’s motion for summary
judgment is not warranted on this ground.
C. Qualified Immunity Defense
Lastly, Clark argues that even if Skaggs has adduced evidence to support an Eighth
Amendment claim, Clark is nonetheless entitled to qualified immunity.
Under the qualified immunity doctrine, “government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is “an
immunity from suit rather than a mere defense to liability,” as such, “it is effectively lost if a case
is erroneously permitted to go to trial”; and so, the qualified immunity question should be resolved
at the “earliest possible stage in litigation.” Saucier v. Katz, 533 U.S. 194, 200–01 (2001). In
Saucier, the Supreme Court set forth a two-step analysis for resolving qualified immunity claims:
First, a court must decide whether the facts that a plaintiff has alleged10 or shown,11 taken in a
light most favorable to the plaintiff, make out a violation of a constitutional right. Pearson v.
Callahan, 555 U.S. 223, 232 (2009) (citing Saucier, 533 U.S. at 201). Second, if the plaintiff has
satisfied this first step, the court must decide whether the right at issue was “clearly established”

10

If immunity is raised on motion to dismiss, courts apply the reviewing standards for deciding a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Pearson, 555 U.S. at 232.
11
If immunity is raised on motion for summary judgment, courts apply the reviewing standards
for deciding a motion for summary judgment under Federal Rules of Civil Procedure 50 and 56.
Pearson, 555 U.S. at 232.
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at the time of the defendant's alleged misconduct. Id. (citing Saucier, 533 U.S. at 201). While the
sequence Saucier set forth is often appropriate, it is not mandatory; judges have discretion in
deciding which of the two prongs should be addressed first, in light of the circumstances in the
particular case at hand. Id. at 236. As a final matter, “[q]ualified immunity is intended to protect
those officers who reasonably believe that their actions do not violate federal law, but it should not
function to give officers one free violation of constitutional rights every time they are asked to
apply a well-established principle to a new set of facts.” Trulock v. Freeh, 275 F.3d 391, 412 (4th
Cir. 2001) (Michael, J. concurring and dissenting) (internal quotations and citations omitted).
Applying the first Saucier prong, the evidence taken in a light most favorable to Skaggs
shows jail officials violated his Eighth Amendment rights. As discussed above, jail officials violate
inmates’ Eighth Amendment rights by displaying deliberate indifference to inmates’ serious
medical needs, Estelle, 429 U.S. at 104, and Skaggs has produced evidence that Clark, a jail
administrator, was deliberately indifferent to inmate Skaggs’s orthopedic shoe deprivation, a
serious medical need. Therefore, the question becomes whether the right was clearly established
in the context of this case.
Under this set of circumstances, a reasonable jail official would have known that depriving
Skaggs of his medically necessary shoe violated the Eighth Amendment’s prohibition on cruel and
unusual punishment. To be clearly established, “[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.” Saucier,
33 U.S. at 202. About April 21, 2012, Clark ordered Skaggs’s left orthopedic shoe confiscated to
investigate it as a security threat. The next day Clark learned the shoe was medically necessary
and posed no threat, and he agreed that Skaggs should continue to wear the shoe, Affidavit of
Michael Clark ¶ 5, but Clark failed to return the shoe. In October 2012, Skaggs reminded Clark

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that the shoe remained confiscated because Clark had never ordered it returned. 12 Furthermore,
Skaggs, in his October 2012 grievance reminding Clark about the shoe, reported bad pain in his
back and legs due to the shoe deprivation. Clark seemingly ignored this grievance by providing no
response to it. There is no evidence Clark was aware that Skaggs was ultimately confined to a
wheelchair as a result of the deprivation. However, in total Clark confiscated a medical device
under the auspice of investigating its security threat, learned it was medically necessary and posed
no threat, agreed the inmate should have the device, failed to ensure it was returned, was reminded
that the device remained confiscated and was told the deprivation caused the inmate unnecessary
pain, and yet he ignored the reminder. A reasonable jail official would understand he or she
violated an inmate’s rights by learning confiscation of an inmate’s medical device was both
medically unwarranted and harmful to the inmate and then failing to return the device in a
reasonable amount of time despite the inmates’ direct plea to the official. See Iko, 535 F.3d at 243
n.12 (recognizing the right to adequate medical care had already been carefully circumscribed in
the case law and so officers had “fair warning” that their conduct was unconstitutional, and
therefore qualified immunity was unavailable to them). Prison and jail officials are aware that
inmates rely on them to meet their medical needs. See Estelle, 429 U.S. at 103–04. Accordingly,
the Court finds a reasonable jail official would have understood that he or she violated Skaggs’s
rights by confiscating his left orthopedic shoe for security investigation, learning it posed no

12

Clark maintains that he believed Skaggs continued to wear the left orthopedic shoe, and that he
first became aware Skaggs was without the shoe when Skaggs filed this lawsuit. Affidavit of
Michael Clark ¶ 5. However, in discussing deliberate indifference under Part III.B.2 of this
Memorandum Opinion and Order, the Court explains that on this motion for summary Skaggs’s
version of the facts must be credited, as he is the non-moving party. Under Skaggs’s version, Clark
was aware that he had confiscated the shoe, and the reasonable inference to draw from Clark’s
confiscation is that he knew the shoe would remain confiscated until he ordered its return, which
he failed to do.
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security threat and was medically necessary, and failing to return the orthopedic shoe despite
Skaggs’s reminder and plea for its return.
Viewing the evidence in a light most favorable to Skaggs, the Court holds Clark is not
entitled to qualified immunity on Skaggs’s Eighth Amendment Claim. Therefore, Clark’s motion
for summary judgment is not warranted on this ground.
IV.

CONCLUSION

For the foregoing reasons, the Court SUSTAINS Skaggs’s objections and DECLINES to
accept and incorporate the Proposed Findings and Recommendations of the Magistrate Judge.
Because Skaggs has raised a genuine issue of material fact on his Eighth Amendment claim, and
Clark is not entitled to qualified immunity, the Court DENIES Defendant Clark’s Motion for
Summary Judgment.
The Court DIRECTS the Clerk to forward copies of this Memorandum Opinion and Order
to Magistrate Judge Tinsely, all counsel of record, and any unrepresented parties.

ENTER:

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March 31, 2016