Tillery v. Va. Peninsula Reg'l Jail

• Decision Date: 17 November 2020
• Docket Number: 1:20cv751 (RDA/TCB)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Herman Tillery, Plaintiff, v. Virginia Peninsula Regional Jail, Defendant.

Herman Tillery, Plaintiff, v. Virginia Peninsula Regional Jail, Defendant.

1:20cv751 (RDA/TCB)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

November 17, 2020

MEMORANDUM OPINION

Herman Tillery, a local Virginia inmate proceeding pro se, filed a civil-rights complaint under 42 U.S.C. § 1983, alleging that he received constitutionally inadequate medical care at the Virginia Peninsula Regional Jail in violation of his constitutional rights. [Dkt. No. 1]. Because plaintiff is a prisoner, his complaint was screened to determine whether it is frivolous, malicious, or fails to state any claims upon which relief may be granted. See 28 U.S.C. § 1915A. On August 6, 2020, the Court entered an order finding that the original complaint failed to state a § 1983 claim, the deficiencies in the complaint were identified, and plaintiff was directed to file more information in a particularized and amended complaint. [Dkt. No. 4]. After reviewing his first amended complaint [Dkt. No. 6], and additional pleadings [Dkt. Nos. 5, 7], the Court again determined that the complaint as amended still did not state a claim upon which relief could be granted and plaintiff was directed to file an amended complaint. Because plaintiff is incarcerated, his second amended complaint [Dkt. No. 9] must be screened to determine whether it is frivolous, malicious, or fails to state any claims upon which relief may be granted. See 28 U.S.C. § 1915A.

The second amended complaint raises four claims and alleges that Virginia Peninsula Regional Jail (VPRJ), Dr. Bhat, and Nurse Kerrington have violated his constitutional rights and seeks monetary damages in the amount of $500,000,000. [Dkt. No. 9 at 5]. Plaintiff's first claim alleges that on December 19, 2019, Dr. Bhat refused to treat his erectile dysfunction and that Dr. Bhat refused to do anything about his disease again on August 11, 2020.¹ His second claim is that Nurse Kerrington provided him the wrong medication on August 14, 2020. On August 20, 2020, plaintiff alleges an unnamed nurse cancelled his nasal spray but admits the nasal spray was reordered on September 3, 2020. [Id. at 4]. Plaintiff's last claim alleges that he was exposed to a "possible health risk" on August 28, 2020 because he was assigned a cellmate that had just finished being held in quarantine for COVID-19. [Id. at 5].

I.

Pursuant to § 1915A, a court must dismiss claims based upon "'an indisputably meritless legal theory,'" or claims where the "'factual contentions are clearly baseless.'" Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327, (1989)). The second standard is the familiar standard for a motion to dismiss. Fed. R. Civ. P. 12(b)(6). "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). 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 viewed in the light most favorable to the plaintiff. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952.

To survive a 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A plaintiff's allegations must "raise a right to relief above the speculative level," and "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to meet this standard. Id.

Where a complaint is filed by a prisoner acting pro se, however, that complaint must be construed liberally regardless of how unskillfully it is pleaded. Haines v. Kerner, 404 U.S. 519, (1972). A pro se litigant is therefore not held to the strict pleading requirements demanded of attorneys. Estelle v. Gamble, 429 U.S. 97, 106-07 (1976); Figgins v. Hudspeth, 584 F.2d 1345 (4th Cir. 1978), cert. denied, 441 U.S. 913 (1979). For these reasons, a court's "power to summarily dismiss a prisoner's pro se complaint is limited." Figgins, 584 F.2d at 1347. Here, plaintiff has filed two amended complaints and still fails to provide a claim upon which relief can be granted. To the contrary, the allegations establish that he did not suffer any constitutional deprivation.

II.

The Eighth Amendment requires prison officials to ensure that inmates receive adequate medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). A prison official violates the Eighth Amendment by acting with deliberate indifference to an inmate's serious medical needs. Estelle, 429 U.S. at 104. To state a cause of action under § 1983, a plaintiff must allege facts demonstrating that each named defendant had personal knowledge of, and involvement in, thealleged violations of his Eighth Amendment rights for the action to proceed against each named defendant.

To state a claim under Section 1983 for deliberate indifference to serious medical needs, a prisoner must show that he had a serious medical need, and that officials knowingly disregarded that need and the substantial risk it posed. King, 825 F.3d at 218-20; Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017). A "serious medical need" is a condition "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." Heyer, 849 F.3d at 210 (citation omitted).

Depaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018) (emphasis added). Plaintiff first alleges that Dr. Bhat on two separate occasions refused to treat his erectile dysfunction.

The first step in evaluating plaintiff's claim is to determine if erectile dysfunction constitutes a serious medical condition. The Fourth Circuit has defined a serious medical need as "'one that 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.'' Iko v. Shreve, 535 F.3d 225, 241 (4tht Cir. 2008) (quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)).²

Although the Fourth Circuit Court of Appeals does not appear to have addressed this issue, other courts that have done so have determined that [erectile dysfunction does] not constitute a serious medical need for purposes of the Eighth Amendment. SeeMichtavi v. Scism, 808 F.3d 203, 207 (3d Cir. 2015) ("There is no Supreme Court or appellate precedent holding that prison officials must treat retrograde ejaculation, infertility, or erectile dysfunction; in fact, the weight of authority is to the contrary"); Lyons v. Brandly, 430 F. Appx 377, 381 (6th Cir. 2011) ("Lyons's erectile dysfunction cannot be said to be a serious medical condition, given that no physician indicated its treatment was mandatory, it was not causing Lyons pain, and it was not life-threatening"); Aidnik v. California Dep't of Corr. & Rehab., No. CIV S-09-0154 FCD, 2010 U.S. Dist. LEXIS 128441 at *5 (E.D. Cal. Dec. 6, 2010) (noting that plaintiff had not "established that erectile dysfunction constitutes a serious medical need within Eighth Amendment jurisprudence"); Neal v. Suliene, 2008 U.S. Dist. LEXIS 34384, at*3 (W.D. Wis. 2008) (finding that erectile dysfunction does not constitute serious medical need because it is not life threatening nor does it result in needless pain and suffering). The court finds the reasoning of these opinions to be sound and persuasive ... [and] finds that [plaintiff's] erectile and sexual dysfunctions do not constitute a serious medical need for purposes of the Eighth Amendment. Thus, [defendant's] alleged failure to treat these conditions do[es] not state a claim upon which relief may be granted, and this claim should be dismissed.

Gardner v. Rajan, No. 5:17-CT-3105-D, 2018 U.S. Dist. LEXIS 60665, *10-12 (E.D.N.C. Feb. 1, 2018), adopted by and dismissed by, in part, 2018 U.S. Dist. LEXIS 58695 (E.D.N.C., Apr. 6, 2018). As courts have routinely found erectile dysfunction is not a serious medical need, the plaintiff has failed to state a claim and this claim will be dismissed.

Next, plaintiff alleges that Nurse Kerrington was negligent in dispensing the wrong medication to him on August 14, 2020. Plaintiff states he discovered the error, returned the wrong medication, and alleges that Nurse Kerrington's conduct was "gross negligence." [Dkt. No. 9 at 4]. Plaintiff does not allege Nurse Kerrington's actions were intentional and he alleges no harm as a result of the alleged error. Dispensing the wrong medication does not constitute deliberate indifference and such claims are routinely dismissed.³

The defendants' failure to provide the plaintiff with his medicine on occasion amounted, at worst, to negligence. SeeZingmond v. Harger, 602 F. Supp. 256, 260 (N.D. Ill. 1985); Burns v. Head Jailor of LaSalle County Jail, 576 F. Supp. 618 (N.D. Ill. 1984). Negligence, gross negligence, or even recklessness as used in the civil tort sense, are insufficient to support an Eighth Amendment claim. Duckworth, supra, 780 F.2d at 653. Excusable delays in properly treating an inmate that do not stem from deliberate indifference do not implicate the Eighth Amendment. Shockley v. Jones, 823 F.2d 1068, 1072 (7th Cir. 1986).

Williams v. Cearlock, 993 F. Supp. 1192, 1197 (C.D. Ill. 1998); see also Daniels v. Beasley, No. 241 Fed. Appx 219, 220 (5th Cir. 2007) (allegation that prison official gave prisoner wrong medication resulting in excessive...