Canady v. Clarke et al, No. 3:2014cv00420 - Document 41 (E.D. Va. 2015)

Court Description: MEMORANDUM OPINION. Read details on Opinion. Signed by District Judge Robert E. Payne on 10/01/2015. Mailed copy to Plaintiff as directed.(ccol, )

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Canady v. Clarke et al Doc. 41 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Riclunond Division MARLON CANADY, Plaintiff, v. Civil Action No. 3:14CV420 RODERIC L. TUELL, et al., Defendants. MEMORANDUM OPINION Marlon Canady, a Virginia inmate, action under 42 U.S.C. for § 1 1983. 1 The matter is before the Court 42 u.s.c. Federal Rule of Civil Procedure Rule 8 {a) , 20 (a) , 2 evaluation 1997e {c) , § has submitted this civil pursuant to 28 U.S.C. § 191SA, That statute provides, in pertinent part: Every person who, under color of any statute . . . of any State . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . . 42 u.s.c. § 1983. 2 (2) Defendants. Persons . . . may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. Fed. R. Civ. P. 20(a). Dockets.Justia.com and Plaintiff's Memorandum November compliance Order. 13, with the Specifically, 2014, the Court Court's by Memorandum directed appropriate particularized complaint. that if he complaint, failed the to Court submit would an drop rambling, No. 27.) and 5, 2015, the repetitive Canady all to 2014 entered submit an particularized defendants not properly (ECF No. 20.) received Canady's lengthy, Complaint. Particularized As explained below, Order appropriate Court 13, The Court warned Canady joined with the first named defendant. On January November (ECF the Particularized Complaint fails to comply with the rules regarding joinder. I. PRELIMINARY REVIEW Pursuant to the Prison Litigation Reform Act Court must dismiss any action filed by a determines the action (1) a relief claim on § 1915(e)(2); includes which s^ claims 28 "is frivolous" may U.S.C. based upon § "'an be ("PLRA") this prisoner if the Court or (2) "fails to state granted." 1915A. The 28 first indisputably U.S.C. standard meritless legal theory,'" or claims where the "'factual contentions are clearly baseless.'" 1992) The Clay v. Yates, (quoting Neitzke v. second standard dismiss under Fed. R. is F. Williams, the Civ. 809 Supp. 417, 490 U.S. familiar P. 12(b)(6). standard 427 319, for (E.D. 327 a Va. (1989)). motion to "A motion sufficiency contests of to a dismiss complaint; surrounding the Arthur R. 952 facts, 12(b)(6) it the merits tests does of a not the resolve claim, or the Republican Party of N.C. v. Martin, (4th Cir. Miller, Rule importantly, applicability of defenses." 980 F.2d 943, under 1992) (citing 5A Charles A. Wright & Federal Practice and Procedure § 1356 (1990)), In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is plaintiff. Cir. in Mylan Labs., 1993); applies viewed to factual considering a identifying pleadings Ashcroft V. The motion are Icfbal, Federal to 980 556 U.S. of to 679 Civil however, choose they the to are the 1134 7 F.3d 1130, can because 662, favorable F.2d at 952. dismiss entitled Rules most allegations, that, not light Inc. v. Matkari, see also Martin, only conclusions, the {4th This principle and "a to no court begin more assumption of by than truth." (2009) . Procedure "require[ ] only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' notice of what the rests.'" . Bell Atl. in order 41, 47 (1957)). with complaints 'give the defendant fair . . claim is and the grounds upon which it Corp. v. Twombly, (second alteration in original) U.S. to 544, (quoting Conley v. Plaintiffs containing only 550 U.S. cannot "labels 555 (2007) Gibson, satisfy this 355 standard and conclusions" or a "formulaic Id. recitation the (citations omitted). sufficient level," "to id. "plausible raise a its "conceivable." Id. plaintiff pleads reasonable plaintiff [his or] F.3d 324 Microsoft United Corp., States, relief above stating at action." 570, the a speculative claim rather that than is merely that is the 309 at 678 In order for a failure to facts 765 270, state a Bass v. Cir. 213 281 for the {citing Bell Atl. claim, to E.I. 2003) therefore, state the all the DuPont de Nemours (citing (4th Cir. {4th liable claim or complaint to sufficient {4th F.3d 193, F.3d defendant 556 U.S. her claim." 761, 289 of the court to draw "allege & Co., id. Iqbal, for elements of cause content that allows at 556). must a "A claim has facial plausibility when the inference survive dismissal to omitted), factual 550 U.S. of Instead, a plaintiff must allege facts face," misconduct alleged." Corp., elements right (citation on the of 2002); Cir. 2002)). Dickson v. lodice v. Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, the 574 F.2d 1147, inmate's 1151 advocate and (4th Cir. develop, 1978), sua i t will not act as sponte, statutory and constitutional claims that the inmate failed to clearly raise on the face of his complaint. 243 (4th Cir. of Hampton, 1997) {Luttig, See Brock v. J., 775 F.2d 1274, 1278 Carroll, concurring) ; (4th Cir. 1985). 107 F.3d 241, Beaudett v. City II. The Federal plaintiff's Rules ability pleading. See Civil Procedure to join multiple R. Civ. P. Fed. occurrence test' of JOINDER of [Rule 20] . . limits defendants 20(a). . place "The in a on single 'transaction *permit[s] all a or reasonably related claims for relief by or against different parties to be tried in a single proceeding. is unnecessary.'" Cir. 1983) 1333 (8th BL Ltd., (quoting Mosley v. Cir. plaintiff Saval v. to 1974)). add Absolute identity of all events Gen. "But, claims 710 F.2d 1027, Motors Corp., Rule 20 'against does 1031 (4th 497 F.2d 1330, not different authorize parties a [that] present[ ] entirely different factual and legal issues.'" Sykes v• 2008) Bayer Pharm. Corp., (alterations No. 7:03cv00395, 2007)). the in "And, objectives a of WL the delay.'" Inc., Id. 485 F.3d 206, In impulse action addressing is toward consistent at (E.D. Va. Lovelace *1 Rule (W.D. 20 convenience v. Va. Aleman 218 n.5 (4th Cir. joinder, Lee, Oct. will and not 21, foster the entertaining v. to Support the expense, Servs., 2007)). Court the fairness Chugach the expediting but will result in prejudice, (quoting with 218 'deny joinder if it determines that party under [promoting 2d 208, (quoting 3069660, court may resolution of disputes], or Supp. original) 2007 addition of 548 F. is mindful that broadest possible the parties; "the scope of joinder of claims, parties and remedies is strongly encouraged." Mine Workers of Am. v. impulse, however, Gibbs, 383 U.S. 715, 724 United (1966). This does not provide a plaintiff free license to join multiple defendants into a single lawsuit where the claims against Smith, 130 the 507 F.3d defendants F.3d 605, 1348, are 607 1350 unrelated. {7th Cir. (9th Cir. See, 2007); 1997). e.g., George Couqhlin v. Thus, "[a] v. Rogers, buckshot complaint that would be rejected if filed by a free person—say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all in different filed by a prisoner." transactions—should be rejected if George, 507 F.3d at 607. "The Court's obligations under the PLRA include review for compliance with Rule 2011 WL 3703117, at 20(a)." *3 (E.D. Coles v. Va. McNeely, Aug 23, 2011) No. 3:11CV130, (citing George, 507 F.3d at 607). Thus, multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass that these complaints have produced but also to ensure that prisoners pay the required filing fees. Id. (citing 7:08cv00276, allow 28 U.S.C. § 1915(g); 2009 WL 1321694, at *4 [plaintiff] to pay one Showalter Johnson, No. (W.D. Va. May 12, 2009) ("To filing fee yet v. join disparate claims against dozens of parties flies in the face of the letter and spirit of the PLRA." ) III. Canady's Particularized individuals contains relief. a SUMMARY OF CLAIMS as Complaint defendants. rambling, The verbose names nine separate Particularized narrative with three Complaint claims for Plaintiff l i s t s his claims as follows: Claim One: "Violation Cruel of and Eighth Unusual Amendment Punishment, Right; 'Failure to Protect Against Attack By Cellmate.' (Claims Against Defendants 'Logan, Tuell, and Vancamp' [) ] ." (Part. Compl. 43-44.} Claim Two: "Violations of Eighth and First Amendment Rights: 'Denial of Adequate Medical Treatment' (Against Defendant Ulep and Tuell.)" Claim Three: "Violation of First Amendment Right; Retaliation for Exercising Protected Right to File Grievances (Claims Against Defendant Tuell, Oates, and Pearson)." Canady seeks (I^ at 47-48.) declaratory (I^ at judgment, 56.) several injunction, and claims all monetary damages. The employed Defendants at Sussex named I State in Canady's Prison three ("Sussex") and are his claims involve events that occurred during his incarceration in Sussex. Canady also names Wallens Ridge administrator as State at defendants: Prison WRSP; and Gregory Holloway, ("WRSP"); Daniel 7 M. Miller, Stanford, a Warden at a doctor medical at WRSP ("WRSP Defendants"). his "Causes of However, Action" Canady sets section against forth no claims in the WRSP Defendants. Recognizing that the WRSP Defendants would be improperly joined with the claims against the Sussex defendants, Canady states; "Plaintiff should be allowed to file claims against Defendants Stanford, and Holloway alleged in paragraphs 109 herein, 5, 6, 89 through because filing a separate § 1983 civil action would create the risk of a 243." time bar issue, violating Va. Code § 8.01- at 62.) IV. Because DISMISSAL OF Canady fails to Defendants in his Complaint, be improperly joined,^ IMPROPERLY allege JOINED a claim PARTIES against the WRSP and because these defendants would the Court proceeds with the analysis it 'In paragraphs five and six of his Particularized Complaint, Canady indicates "Defendants" that denied him during crutches his incarceration and denied him at out of WRSP, cell exercise for six and a half weeks. {Part. Compl. 6.) Even if the Court generously construed Canady's Particularized Complaint to bring these claims against the WRSP Defendants, the claims are not properly joined with Claims One through Three. The claims against the WRSP Defendants neither arise out of the same transaction or occurrence nor present common questions of law and fact as Claims One through Three. "*As such, this [Particularized C]omplaint comprises multiple law suits, rather than one suit.'" Jackson v. Olsen, No. 3:09cv43, 2010 WL 724023, at *8 (E.D. Va. Mar. 1, 2010) (quoting Canada v. Ray, No. 7:08cv00219, 2009 WL 2448557, at * 2 (W.D. Va. Aug. 10, 2009)). Additionally, through the PLRA, Congress sought to ensure "that the flood of nonmeritorious [prisoner] claims does not submerge and effectively preclude consideration of the allegations (2007) with merit." (citing Neitzke v. Jones v. Williams, 8 Bock, 490 U.S. 54 9 U.S. 319, 327 199, 203 (1989)). accounted in its November 13, 2014 Memorandum Order. drops the WRSP Defendants from the action. The Court Any lurking claim against the WRSP Defendants will be dismissed without prejudice. The first Roderic L. Compl. Tuell, il 10.) Vancamp, is named a defendant in the Unit/Building Manager at Defendant Sussex. (Part. Claim One also names Sabrina Logan and Mr. also named in Claims Benjamin T. Two and Ulep, a Three. doctor Institutional a proceeds on Two Sussex. One also names Claim Three Hearing the Warden at Sussex. Claims Tuell Unit/Building Manager, Classification Authority Sussex I, and Eddie Pearson, action Claim at also names Defendants Jerry D Gates, the is both Building Sergeants/Supervisors at Sussex. Defendant and action through Officer at Accordingly, Three against Defendants Tuell, Ulep, Pearson, Logan, and Oates. The Court provides notes lengthy claim, the paragraphs 1-110 to Particularized support his to specific "realleges, herein" for paragraphs and Claim that incorporates One (Part The requirement that inmates must pay the full Complaint claims In his "CAUSE OF ACTION" section, Court Canady Canady's allegations discernable order. directing that in no instead of support by each reference Compl. 43-44), filing fee for each separate suit, see 28 U.S.C. § 1915(b)(1), is one of the PLRA's key "reforms designed to filter out the bad claims and facilitate consideration of the good." inmate, such as Canady, to "package complaint exempts him from such a thus undercuts the PLRA." Id. at 204. To allow an many lawsuits into one cost, benefit analysis and Canada, 2009 WL 2448557, at *3. "paragraphs 1-122 herein," for Claim Two "paragraphs 1-150 herein," for Claim Three Despite Canady's Particularized Complaint orderly disposition, Complaint utter in at 48), and (id. at 56). failure a (id. to manner that organize lends his itself to the Court culls through the Particularized and attempts to sort his allegations chronologically by category. IV. A. Claim One 1. To ANALYSIS OF REMAINING CLAIMS (Failure to Protect Canady) Eighth Amendment Standard make allege facts out an Eighth that indicate Amendment (1) subjectively the 'sufficiently culpable 145 F.3d 164, 167 U.S. 294, must allege facts of was 298 (1991)). extreme discomfort'" that Waters, Hudson V. 989 of officials mind.'" 1998) is Under amounted "'part McMillian, 1375, 503 Johnson v. 1380 U.S. more the n.3 Cir. (1992)). demonstrate such an extreme deprivation, 10 a Quinones, the the that society.'" (4th 9 than penalty against 1, (2) 501 inmate the deprivation complained to of and Seiter, the objective prong, their offenses F.2d must with acted (quoting Wilson v. that suggest that and offenders pay for V. (4th Cir. inmate *sufficiently serious,' prison state an that objectively the deprivation suffered or harm inflicted "was that claim, 1993) "In "'routine criminal Strickler (quoting order to a prisoner must allege 'a serious or significant physical or emotional injury resulting from the challenged F.3d 630, 634 conditions.'" (4th Cir. 2003) De'Lonta v. Angelone, (quoting Strickler, 330 989 F.2d at 1381). The subjective requires the particular prong of plaintiff defendant to a deliberate allege actually indifference facts knew of that 511 U.S. 825, 837 (1994). indicate a disregarded and substantial risk of serious harm to his person. Brennan, claim a See Farmer v. "Deliberate indifference is a very high standard—a showing of mere negligence will not meet it." Grayson v. Peed, 195 F.3d 692, Estelle V. Gamble, 429 U.S. 97, 695 105-06 (4th Cir. 1999) (citing (1976)). [A] prison official cannot be found liable under Eighth Amendment for denying an inmate humane the conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be risk of serious harm exists, drawn that a substantial and he must also draw the inference. Farmer, 511 U.S. at 837. Farmer teaches "that general knowledge of facts creating a substantial risk of harm is not enough. prison official general facts inmate." 837); s^ (stating must and Quinones, Rich v. same). also the draw specific the risk 145 F.3d at 168 Bruce, Thus, to 129 inference F.3d survive of harm between a 338 motion those confronting (citing Farmer, 336, The 511 U.S. (4th to Cir. dismiss, the at 1997) the deliberate indifference standard requires a plaintiff to assert 11 facts sufficient to form an inference that "the official in question subjectively recognized a substantial risk of harm" and "that the official in question subjectively recognized that his actions were 'inappropriate in light of that risk.'" rel. Lee v. Cleveland, (quoting Rich, 2. 372 F.3d 294, 303 Parrish ex (4th Cir. 2004} Canady alleges that Defendants Tuell, Logan, 129 F.3d at 340 n.2). Canady's Allegations In Claim One, and Vancamp violated his Eighth Amendment rights by failing to protect him from an attack by his cell mate by refusing to allow Canady to change cells. In support of his claim, that or March 13, either on March Ernest M. that Canady H 19.) near Canady's cell mate called Defendant Logan to their cell Jones to report had 6 threatened him and 2012, Canady alleges possessed weapons. (Id. Defendant Logan found large stones outside the cell door where Jones stood. (Id. H 20.) Canady explains that inmates used large stones "to put in pillow cases and socks, so an inmate may bash another inmate in the head or striking other body parts to cause injuries. the stones." (Id. Both inmates denied ownership of 20-21.) Defendant Logan warned both inmates "that if she had to return to [the] cell for any reason, she was inmates] going write disciplinary to segregation." (Id. H 24.) cell change, to charges, and send [both Both inmates asked for a and Defendant Logan told them Defendant Tuell made 12 those decisions. H 25.) Canady Tuell told because that Defendant [Jones] Jones weapon that had struck him had removed with On approximately March 27, 2012, the the intention "he in screws to the April 10 or threatening Vancamp. their him and while having Jones crutch" (Id. and [Canady] cell that On either accused the a 26-27.) K 30.) falsely in changed crutches and made and told (Id. weapons cell Canady to of Defendant Canady believes Jones planted weapons in he Vancamp complaint." 2012, (Id. ^ 34.) cell Defendant 17, the Canady. Defendant Tuell "did absolutely nothing, he would look into his a head with a from stab wanted was that out Jones in had the the pod working weapons. and (Id. t told 35.) Defendant Vancamp locked Jones and Canady in different tiers of the pod. (Id. were found. and Jones] t 37.) (Id. H 39.) a choice, (segregation) with a order)." After a search of the cell, no weapons "Defendant Vancamp then gave [Canady [ ]either go into the cell, 201 disciplinary offense. (Id. H 40.) or go to jail (Disobeying an In late April and early May 2012, Canady made two more verbal requests to Defendant Vancamp to have his cell changed. (Id. 43.) Canady alleges that his cell change was denied because Sussex denied cell changes for inmates with a Good Conduct Allowance level of four. Canady alleges "stabbed [Canady] that in on June his 5, forehead 13 (Id. 47, 2012, Jones, (requiring 49.) attacked him, stitches)" and "suffered a broken leg, raalleolus) (fibula fracture at right ankle, lateral and tendon damage to his attempting to defend himself. Based on the Complaint, the Court Amendment claim and Vancamp. facts index finger" from (Part. Corapl. Ht 18, 50.) as finds right alleged that in Claim One in Canady against his has Particularized stated Defendants an Eighth Tuell, Logan, The Court will order service of Claim One on these three defendants. B. Claim Two (Inadequate Medical Care) With respect to an Eighth denial of adequate medical care, omissions sufficiently Amendment 97, 106 (1976). A harmful medical alleging the "a prisoner must allege acts or to evidence indifference to serious medical needs." U.S. claim need Estelle v. is "serious" deliberate Gamble, if it 429 "'has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" 225, 241 839, (7th Cir. 846 "To constitute the excessive must to 196 F.3d that deliberate as 535 F.3d 1999)). establish treatment Shreve, (quoting Henderson v. Sheahan, (4th Cir. 2008) Iko v. be shock fundamental fairness." a health indifference so the grossly to care a serious incompetent, conscience or Miltier v. Beorn, 14 provider's to be actions medical need, inadequate, or intolerable to 896 F.2d 848, 851 {4th Cir. 1990) (citing Rogers v. Cir. 1986)). Absent Evans, exceptional 792 F.2d 1052, circumstances, 1058 an (11th inmate's disagreement with medical personnel with respect to a course of treatment is claim, much Wright v. insufficient to state a less to Collins, Qittlemacker v. Furthermore, in demonstrate 766 deliberate F.2d 841, Prasse, 428 evaluating cognizable constitutional 849 F.2d a indifference. {4th Cir. 1, 6 prisoner's See 1985) (citing Cir. 1970)). (3d complaint regarding medical care, the Court is mindful that "society does not expect that prisoners will have unqualified access to health care" or to v. the medical McMillian, 503 103-04). In treatment U.S. this 1, 9 regard, of their (1992) the choosing. Hudson (citing Estelle, right to medical 429 U.S. at treatment is limited to that treatment which is medically necessary and not to "that which may be considered merely desirable." Godwin, 551 F.2d 44, 48 2. Bowring v. (4th Cir. 1977). Canady's Allegations Against Dr. Ulep After the altercation on June 5, 2012, officers took Canady to the prison's medical unit. Dr. Ulep "stitched (Id. t 53.) and Dr. [Canady's] forehead H 51.) Defendant to stop the bleeding." Medical staff took x-rays of Canady's right ankle Ulep placed Canady's nil 54-55.) (Part Compl. The following day, ankle in a plaster cast. (Id. Canady complained that the cast was too tight and Dr. Ulep cut the cast from Canady's "knee to 15 his toe, to release pressure caused by casting leg and ankle while still swelling." (I^ 56.) Dr. Ulep told Canady he would re-cast the leg once the swelling decreased. (Id. H 57.) Canady alleges that he remained in the cast that Dr. Ulep cut an opening in for seven and a half weeks. On June scheduled H 75.) 14, 2012, Canady's Dr. Ulep re-casting (Id. If 58.) removed for the Canady's following stitches week. (Id. Due to prison lockdowns, the re-casting was rescheduled several times. (Id. H 76.) On June 18, 2012, x-rays confirmed that "the spiral fibula fracture was minimally displaced." H 78.) On June 27, WRSP. that (Id. "he H 88.) [Canady's] needed 2012, and [an] 2012, (Id. Canady was relocated from Sussex to The medical department at WRSP "concluded right ankle fracture was mildly displaced, orthopedic follow-up." (Id. t 80.) and On July 26, an orthopedist viewed Canady's x-rays and told Canady that would Surgery," have indicated *Open Reduction Internal Fixation but the fracture has healed and he would not suggest corrective surgery at that time." Canady claims that Dr. Ulep (Id. t 83.) provided inadequate medical care by not immediately sending him to an orthopedic surgeon to receive "open reduction internal fixation repair the damage" to his ankle fracture. also faults Dr. Ulep for failing to wait decrease before placing his ankle in a cast 16 surgery (Id. for t 54.) the (id. needed to Canady swelling to K 55) , and by failing to place his ankle in a new cast prior to his transfer (id. KK 57-58) . Canady claims Dr. Ulep failed to send him to a specialist save to "irreparable damage" money. (id. t Canady claims he suffered 129) but identifies no harm from Dr. Ulep's actions except to state that he can no longer exercise at his "full potential." (Id. t 136.) At the core of this claim, Canady simply disagrees with the medical judgment of Dr. Ulep concerning treatment for Canady's ankle injury. the appropriate "Disagreements between an inmate and a physician over the inmate's proper medical care do not state a § alleged." 1983 Wright, P.2d at 6). claim unless 766 exceptional F.2d at As explained below, 849 (citing circumstances are Gittlemacker, 428 Canady fails to demonstrate any exceptional circumstances that would necessitate judicial review of Dr. Ulep's clinical judgment. Dr. cannot Ulep's be said conscience. actions to be Instead, in so treating grossly Canady's incompetent ankle as to fracture shock the Canady alleges facts indicating that the same night as Canady sustained injuries Dr. Ulep ordered x-rays of Canady's ankle and placed it in a complained that the cast was too tight. cast. Dr. When Canady Ulep promptly cut the cast to accommodate further swelling and reduce the pressure Canady felt. placed the With respect cast on while his to Canady's ankle was 17 claim still that Dr. swollen, Ulep Canady fails to allege any harm from Dr. Ulep's immediate placing of a cast on Canady's ankle. a new cast placed on Dr. Ulep also scheduled a the ankle when the time to have swelling decreased, however, several lock downs at the prison caused the date to be delayed, and then Canady was transferred to a Canady fails to allege facts that Dr. Ulep new institution. was deliberately indifferent to Canady's ankle break. Canady also fails to allege facts that indicate that seeing an orthopedist Bowrinq, for treatment 551 F.2d at 48. was medically As an inmate, necessary. See Canady lacks entitlement to the medical treatment of his choosing. Hudson, 503 U.S. at 9 (citing Estelle, 429 U.S. at 103-04). Although Canady alleges that Canady's the orthopedist different manner, may have treated indicated in a Canady's ankle bone had healed at the time he was taken to the orthopedist. that injuries that Dr. Canady also fails to allege facts Ulep knew of and disregarded an excessive risk to Canady's health by failing to send him to an orthopedist. F.3d 1227, See Farmer, 1232 511 U.S. {10th Cir. 2006) at 837; ("Matters Self v. that Crum, 439 traditionally Indeed, Canady admits that his ankle bone had healed at the time he was taken to the orthopedist. The orthopedist's treatment notes from July 26, 2012 state: "At this time if I had seen the patient I would have indicated ORIF but at this time the fracture has healed. I think that it has healed appropriately but will need re-evaluation in about three months." (Part. Compl. Ex. M, at 2.) The orthopedist indicated that he "would not suggest corrective surgery at this time." (Id.) 18 fall within the scope of medical judgment are such decisions as whether to consult a specialist or undertake additional medical testing" Cir. (citing 1992))). Ledoux Canady v. Davies, fails to 961 F.2d allege 1536, 1537 sufficient (lOth facts to indicate that Dr. Ulep actually perceived that Canady faced a siibstantial risk of specialist. At most, with ankle respect to fracture. the hazro by refusing to refer him to a Canady states a disagreement with Dr. Ulep appropriate See Wright, course 766 of treatment F.2d at 849 for his (citing Qittlemacker, 428 F.2d at 6).^ 3. Canady's Claims Against Defendant Tuell Canady claims that he believes if Defendants Tuell and Oates had not interfered with the medical treatment being prescribed by Defendant Ulep, by transferring him, [he] believes that there was a reasonable probability that some type ^ To the extent Canady alleges that Dr. Ulep delayed in the treatment of his serious medical condition by him to an orthopedist, he also fails to Amendment claim. While a significant delay in a serious medical condition may amount to an failing to refer state an Eighth the treatment of Eighth Amendment violation, a violation only occurs if the delay results in substantial harm. See Webb v. Hamidullah, 281 F. App'x 159, 166 {4th Cir 2008) (citing Estelle, 429 U.S. at 104-05). Thus, to make out a claim, Canady must allege facts indicating that the delay in referral to an orthopedist caused him substantial harm. Id. at 167. "'[T]he substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain.'" Shabazz v. Prison Health Servs., No. 3:10CV190, 2012 WL 442270, at *5 (E.D. Va. Feb. 9, 2012) (alteration in original) {quoting Garrett v. Stratman, 254 F.3d 946, 950 (lOth Cir. 2001)). Canady alleges no substantial harm from the delay in seeing the orthopedist. Instead, at the time he saw the orthopedist, the appropriately. doctor noted 19 that the fracture had healed of medical treatment corrected the damage failure on June 5, (Part. Compl. ^ 84.) at that point could have caused by Defendant Ulep's 2012. Canady states no Eighth Amendment claim against Defendant Tuell with these vague allegations. Canady Tuell fails had to allege personal involvement different institution. that Tuell care. had any Instead, experts . . . anything beyond mere with First, speculation Canady's transfer that to a Canady also alleges no facts indicating personal involvement in Canady's medical "*[i]f a prisoner is under the care of medical , a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands.'" Iko, 535 F.3d at 242 Gillis, 372 F.3d 218, Moreover, indicate that even (omission in original) 236 (3d Cir. if Canady alleged sufficient Tuell somehow manipulated Defendant transfer, Canady Defendant Tuell (quoting Spruill v. fails knew of to 2004)). allege facts and disregarded Tuell's health by transferring him to a that an facts Canady's indicate excessive different to that risk to institution. See Farmer, 511 U.S. at 837.® Claim Two lacks merit and will be dismissed. ® To the extent Canady claims that his transfer to a new institution caused a delay in his referral to a specialist, as previously discussed Canady alleges no substantial harm from the delay. 20 C. Claim Three (Retaliation) In Claim Three, Canady claims that Defendants Tuell, Oates, and Pearson violated retaliated against restricted level his [him] First Amendment rights and transferred him (Part. Compl. H 4; ^ ^ to find instances relation to this claim. complaints, and defendant, 18(c).) On June 27, "It is where he on June Manager" Oates that to 2012, W.R.S.P." and to scour Defendants 2012, cell asserting in attack." that (Id. Canady was transferred to WRSP. Canady's belief "Defendant start Court mentioned 22, caused retaliation for filing grievances." claims the Canady's Canady alleges that he "filed informal grievances "Building II 18(d).) more and injuries." HH 152-53, 158, 159-60.)"' extremely disjointed and requires record a asserting that defendants denied cell change request causing attack by cellmate, the to they five prison for exercising his right to file grievances against defendants, claim is "when Tuell that the with (Id. transfer was (Id. H 18(e).) conspired complete the in Canady also Defendant retaliatory 1 Jerry transfer to (I^ H 72 .) In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under color of state law deprived him or her of a constitutional right or of a right conferred by a law of the United States. See Dowe v. Total ^ The Court notes that Canady does not allege a Fourteenth Amendment claim relating to his transfer. 21 Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 Cir. the 1998) . "Government officials may not be held liable for unconstitutional theory (4th of conduct respondeat (citations individual actions, their superior." omitted). Government-official of " [A] subordinates Iqbal, 556 plaintiff must through the defendant, under U.S. plead a at 676 that each official's own has violated the Constitution." Id. First, Canady alleges no personal involvement in the deprivation of his constitutional rights by Defendant Pearson. "supervisory liability" Pearson prison. is liable for (id. 1[ 160) approving At most he alleges and claims the transfer that Defendant to a different Canady fails to allege facts indicating that Defendant Pearson was personally involved in the deprivation of his rights. Canady alleges that Defendant Oates and Tuell were building managers. (See id. ft 66-69.) Canady bases Defendant Oates and Defendant Tuell's liability solely on the fact the only transfer." two Unit (Id. Managers t 158.) with the that they "were authority Canady also claims to initiate that a "Defendant Tuell conspired with Defendant Jerry Oates to start and complete the retaliatory transfer unit managers were units, . . to . W.R.S.P., because only these two hearing officers for the segregation and was responsible for segregation transfers, prison population units, or to different prisons." 22 either to (Id. f 72.) Canady's vague accusations fail to state a claim for relief under the First Amendment. Claims of retaliation by inmates are generally treated with skepticism because officials responds 1310, 74 is by "'[e]very definition act of retaliatory to prisoner misconduct.'" 1317 (4th Cir. {4th Cir. 1996) 1994)) been official a plaintiff retaliatory act was Cochran v. sense prison that Morris, Rice, their constitutional retaliation naked allegations of reprisal Instead, the by 73 it F.3d 40 F.3d 72, (some internal quotation marks omitted).® claim that by in {quoting Adams v. "[P]laintiffs who violated discipline . must taken . . allege in must ." response present Adams, facts rights more than 40 F.3d at 74. "either to have the that exercise the of a constitutionally protected right or that the act itself violated such a right." "there is no Id. at 75. constitutional Contrary to right Canady's to participate contention, in grievance proceedings." 1^ {citing Flick v. Alba, 932 F.2d 728, 729 {8th Cir. Because Canady enjoys no constitutional right to 1991)). participate grievances in about grievance Sussex constitutional right. Id. proceedings, staff was not his the act of pursuing exercise of a {citing Flick, 932 F.2d at 729). ® This case provides a prime example as to why claims of retaliation are met with skepticism. Here, Canady complained that prison officials violated his constitutional rights by refusing to separate him from his cell mate. Yet, when prison officials separated Canady from his cell mate by moving him to another institution, Canady cries retaliation. 23 Canady also fails to allege that the purported retaliatory act—transferring him to a constitutional rights. higher Cochran, security prison—violated his 73 F.3d at 1317, Canady fails to allege facts indicating that the alleged retaliatory act "was taken in response protected Adams, right to that or the the 40 F.3d at 75. exercise act Tuell, action Logan, will and without prejudice. itself a constitutionally violated such right." Claim Three will be dismissed. V. The of CONCLUSION proceed Vancamp. on Claim All One other against claims Defendants are dismissed In accordance with the accompanying Order, the Court will attempt service pursuant to an informal service agreement with Commonwealth the of Attorney Virginia General's for Office Defendants Tuell, for the Logan, and Vancamp. The Opinion Clerk to is Canady directed to and Attorney the send a copy of General's the Memorandum Office for Commonwealth of Virginia. I t is so ORDERED. ZsZ Date: yn // — ^ Kojoert E. Payne Senior Uhited States District Judge Richmond, Virginia 24 the

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