Wall v. Neice

7:12-cv-00020 | W.D. Va. | Mar 26, 2012


AT ROANOKE, VA FILED IN THE UNITED STATES DISTRICT COURT MA2 2 5 2212 FO R TH E W ESTERN DISTR ICT O F V IRG IN IA Juuw c.ota cusnx R O AN O K E D IV ISIO N sv; o s p u rc f g-. CA SE N O . 7:12C V 00020 M A TTH EW O N EA L W A LL, Plaintiff, M EM O M N D U M O PIN IO N VS. NURSE RICKY NEICE, c AL., By: Jam es C . Turk

Senior United States D istrict Judge D efendants. M atthew Oneal W all, a V irginia inm ate proceeding pro K , filed this civil rights action pursuant to 42 U.S.C. j 1983 alleging that nurses at a local jail have violated his constitutional rights by failing to provide him with treatm ent for H epatitis C and a sore ankle. Upon review of the com plaint and W all's other subm issions, how ever, the court sum m arily dism isses the action.

I W all's subm issions provide som ewhat scattered inform ation relevant to his claim s. W all is incarcerated at the A bingdon prison facility operated by the Southw estern V irginia Regional Jail Authority (ûlthe jail'').On December 22, 201 1, W all received a three-year prison sentence, followed by two years of probation. Given the length of his sentence, W all expects to be transferred soon to a prison facility operated by the Virginia Department of Corrections (VDOC).

ln December 201 1, W all tested positive for the Hepatitis C virus (tiHCV''). In eazly January, W all started filing grievances asking for treatm ent of this condition. W all also com plained to m edical staff in N ovem ber and D ecem ber 201 1 of pain from &çshatlered bones in (hisj right ankle where ghe was) shot (a1 few years back,'' and pain in his hands from a torn ligament. (ld.)

On January 4, 2012, staff advised W all that an earlier blood test result indicated that W all's tdenzymes'' were elevated. Staff told him, however, that they Ctwere not able to meet ghisl medical rights'' and that by giving him medication for his HCV, they would be tEhurting ghim) more.'' (Compl. 4.) Staff provided W all with infonuation about conservative Treatment of Hepatitis C that is offered to VDOC patients who do not qualify for m edication treatment. (P1'ff' s M ot. Transfer 3.) This information indicates that HCV patients should avoid high doses of Tylenol. Nevertheless, at some point, when W all complained of pain, nurses brought him Tylenol. W all told the nurse at pill call that Tylenol was bad for him , but she made him take the medication anyway for seven days, along with other medications m edical staff was providing to him. W all alleges that his ûtliver started hurting gand he) couldn't use (thel bathroom.'' On January 26, 2012, a doctor exam ined W all and prescribed ûçnetzroton'' for pain.

W all believes that he needs surgery on his ankle and needs to start HCV treatment as soon as possible. He asks the court to order the defendants to transfer him im mediately a prison facility operated by the Virginia Department of Corrections (VDOC) that could provide proper treatm ent for his H CV and provide surgery for his ankle.

11 The court is required to dismiss any action or claim filed by a prisoner against a governm ental entity or officer if the court determ ines the action or claim is frivolous, m alicious, or fails to state a claim on which relief may be granted. 28 U.S.C. j 1915A(b)(1). To state a cause of action under 51983, a plaintiff must establish that he has been deprived of rights guaranteed by the Constitution or laws of the U nited States and that this deprivation resulted from conduct comm itted by a person acting under color of state law . W est v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff s çtlfjactual allegations must be enough to raise a right to relief above the speculative level,'' to one that is çtplausible on its facey'' rather than m erely Gûconceivable-'' Bell Atl. Coz'p. v. Twomblv, 550 U.S. 544" date_filed="2007-05-21" court="SCOTUS" case_name="Bell Atlantic Corp. v. Twombly">550 U.S. 544, 570 (2007).

A prison official's deliberate indifference to an inm ate's serious m edical needs violates the Eighth Amendment. See Estelle v. Gnmble, 429 U.S. 97" date_filed="1976-11-30" court="SCOTUS" case_name="Estelle v. Gamble">429 U.S. 97, 102 (1976). A constitutional violation in this context involves both an objective and a subjective component. The objective com ponent is m et if the deprivation is tssufficiently serious.'' Farmer v. Brennan, 511 U .S. 825, 834 (1994). The subjective component is met if a prison official is Cldeliberately indifferent,'' that is if he 'lknows of and disregards an excessive risk to inmate health or safety'' and responds unreasonably to the risk. Farm er, 51 1 U .S. at 837. A claim concerning a m ere disagreem ent between an inm ate and m edical personnel regarding diagnosis and colzrse of treatm ent does not implicate the Eighth Amendment. W richt v. Collins, 766 F.2d 841" date_filed="1985-01-07" court="4th Cir." case_name="Garcia Jay Wright v. George Collins, Warden, Maryland Penitentiary Dr. Berry Officer Larry Donnell">766 F.2d 841, 849 (4th Cir. 1985). Questions of medical judgment are not subject to judicial review tmder j 1983. Russell v. Sheffer, 528 F.2d 318" date_filed="1975-12-19" court="4th Cir." case_name="Albert Russell v. C.C. Sheffer, Superintendent Botetourt Correctional Unit, and Carolyn Maupia, L.P.N., Botetourt Correctional Unit">528 F.2d 318 (4th Cir. 1975).M oreover, medical malpractice does not state a federal claim , Estelle, 429 U .S. at 105-106, nor does mere negligence in diagnosis. Sosebee v. M up hv, 797 F.2d 179" date_filed="1986-08-05" court="4th Cir." case_name="Betty Joan Land Sosebee v. Rosemary Murphy">797 F.2d 179 (4th Cir. 1986).

W all's allegations and grievances indicate thatjail medical staff are not ignoring W all's m edical needs. W all w as tested for H CV , and m edical staff are m onitoring his enzym e levels, evaluating his eligibility for medication treatment of HCV, and providing him inform ation about other treatment options for the future. The medical staff also provides W all with m edications, including pain m edication for his nnkle.

W all is dissatisfied with the care provided by the jail staff, believing that he should receive surgery for his ankle, m ore fw quent exnm inations by a doctor, no Tylenol, and im m ediate treatm ent for H CV . This disagreem ent betw een the m edical s'taff and the patient

3 over the appropriate course of treatm ent nm ounts to an allegation that the staff acted negligently in m aking treatm ent decisions, which is not sufficient to show the deliberate indifference

1 necessary to state an Eighth Amendment claim cognizable under j 1983. W hile the court is not unsympathetic to W all's concern about his HCV diagnosis, the court cannot question the medical staff s judgment that treatment for W all's HCV is not warranted by his current condition. W all's com plaint fails to state facts show ing that prison oficials ad ed w ith deliberate indifference to a serious m edical need. Thus, the Court summ arily dism isses the complaint, pursuant to j 1915A(b)(1), for failure to state any constitutional claim. 2

M oreover, W all's prim ary concern is obtaining a transfer to a VD O C prison facility. Inmates have no federal constitutional right to incarceration in any particular prison, however. M eachum v. Fano, 427 U.S. 215" date_filed="1976-06-25" court="SCOTUS" case_name="Meachum v. Fano">427 U.S. 215, 226-27 (1976). Therefore, W all has no actionable claim tmder j 1983 concerning the fact that he has not yet been transferred to the VDOC. The court must sum m arily dism iss W all's claim s concerning transfer.

For the reasons stated, the court dismisses W all's complaint without prejudice, pursuant to j 1915A(b)(1), for failure to state a claim. In addition, because W all states no constitutional claim , the court m ust deny his pending m otions for transfer and m otion for appointm ent of counsel. A n appropriate order w ill enter this day.

1 The court declines to exercise supplementaljurisdiction over any related state law claims, pursuant to 28 U.S.C. j 1367(c), and dismisses such claims without prejudice. ln a recent motion seeking transfer to a VDOC facility, W all complains thatjail staff have treated him with disrespect and arrogance, m aking him feel unsafe. W all does not ask to amend his complaint to add claims, nor could he. Allegations of verbal abuse and harassm ent by guards, w ithout more, do not state any constitutional claim. Henslee v. Lewis, 153 Fed. App'x 179, l 79 (4th Cir. 2005) (citing Collins v. Cundy, 603 F.2d 825" date_filed="1979-08-17" court="10th Cir." case_name="Jessie W. Collins v. Cecil Cundy, Campbell County Attorney and Sheriff Hladky, Sheriff of Campbell County">603 F.2d 825, 827 (10th Cir. 1979:.

4 The Clerk is directed to send copies of this m emorandum opinion and accompanying order to plaintiff. ,7> ENTER: This 7.* day of M arch , 2012. ' A<3 vrF J /' , --x .,r , ç j ;.,.'y . , ,

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