In the United States District Court for the Western District of Virginia Roanoke Division

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION ANTWOINE McKINLEY JONES, ) Plaintiff, ) Civil Action No.: 7:17cv00244 ) v. ) FINDINGS OF FACT AND ) CONCLUSIONS OF LAW DR. HAPPY SMITH, M.D., et al., ) Defendants ) By: PAMELA MEADE SARGENT ) United States Magistrate Judge The pro se plaintiff, Antwoine McKinley Jones, (“Jones”), an inmate incarcerated at Red Onion State Prison, (“Red Onion”), brings this civil rights action pursuant to 42 U.S.C. § 1983, against defendants Dr. Happy Earl Smith, M.D., and Vicki Phipps,1 the former Medical Administrator at Red Onion. Jones alleges that the defendants were deliberately indifferent to his serious medical needs, in violation of his Eighth Amendment rights.2 Jones’s claims are before the undersigned upon transfer by consent of the parties pursuant to 28 U.S.C. § 636(c). A bench trial was held in this matter on January 7, 2019. For the reasons discussed herein, I will enter judgment in favor of the defendants. I. Facts Jones testified at trial that he had been incarcerated at Red Onion since May 27, 2016, when he was transferred from Sussex II State Prison, (“Sussex II”). Prior to that, he was incarcerated at Nottoway Correctional Center, (“Nottoway”). Jones 1 In his Complaint, Jones lists this defendant’s name as Vikki Phipps. In the responsive pleadings, this defendant’s name is listed as Vicki Phipps. The court believes that this is the correct spelling of this defendant’s name and will use the correct spelling. 2 By previous order of the court, dated August 7, 2018, Jones’s claims for injunctive relief were dismissed. (Docket Item No. 44). -1- testified that he suffered a serious injury to his left foot and ankle on May 27, 2004, prior to being placed in Virginia Department of Corrections, (“VDOC”), custody. This injury resulted in a surgically fused calcaneus. Jones testified that he has rods and screws in his left foot and that this injury and surgical repair causes an offset gait. Specifically, on cross-examination, he testified that this injury had resulted in his left leg being shorter than his right leg. He testified that orthopedic footwear served to even out his height and provided support to his ankle. He stated that he had received his first pair of orthopedic shoes from Dr. Roberts in Charlotte, North Carolina, in 2004. Jones testified that he had these shoes up until the time of his VDOC incarceration in 2006. He testified that he was allowed to order Nike brand shoes and New Balance brand shoes and get custom orthotic inserts, which were prescribed by a physician at Sussex II. Jones testified that he also was housed previously at Nottoway. He stated that he inquired there about getting orthopedic shoes on April 12, 2012, and he received the shoes in November 2012. On cross-examination, Jones testified that Defense Exhibit 1 was his intake record at Sussex II, dated January 21, 2015, and reflected that he requested new boots and orthotics. He testified that he received a prescription from Dr. Boakye in October 2015, and he received replacement boots and shoes on January 6, 2016. Jones testified that he had to pay for the boots and shoes himself. Jones testified that he still had the walking shoes with orthotics from Nottoway during the time he was waiting on the replacement footwear at Sussex II. Jones described these new walking shoes as being custom made with white, low-top, synthetic leather uppers, thick rubber soles and shoe laces, but without metal eyelets. He described the boots as being high-top, synthetic leather with thick rubber soles and having metal eyelets for the shoe laces. Both the walking shoes and the boots contained custom -2- made orthotics made of leather and foam with “nodules” to offset his particular stance. Jones testified that, upon his arrival at Red Onion on May 27, 2016, he still had these two pairs of orthopedic shoes – the walking shoes and the boots. Despite having been provided by the VDOC, he was not allowed to keep them upon his arrival at Red Onion. In particular, Jones testified that he was advised he could not keep the boots, which he was wearing upon his arrival, and that Medical would have to approve them. Jones testified that, when his orthopedic footwear was taken, he was given state-issued, slip on canvas shoes with no cushioning and no arch support. Jones testified that he eventually received a new pair of orthopedic boots with custom orthotics in November 2017. He described these boots as being brown leather high-tops with Velcro, as opposed to laces, and having thick soles. Jones stated that he had to pay only a $10.00 co-pay under a new VDOC policy for these boots. Jones testified that the walking shoes he had at the time of his arrival at Red Onion were retrofitted with a synthetic leather, Velcro strap in place of the laces, and they were returned to him at some time between October and November 2018. According to Jones, the boots remained in storage at Red Onion at the time of this hearing. Jones testified that when he saw Dr. Smith at intake at Red Onion, on June 7, 2016, he advised Dr. Smith that he had orthopedic shoes that he needed. Dr. Smith told Jones that he would check into it, but weeks went by. Jones testified that he filed Request Forms, but received no response. He was transferred to Nottoway on June 12, 2016, for trial, and returned to Red Onion on June 17, 2016. While at Nottoway, Jones testified that he was held in segregation due to his security level, so he was not allowed orthopedic shoes at that time. -3- Jones stated that he saw Dr. Smith on three other occasions. On June 22, 2016, when he returned from Nottoway, on August 2, 2016, and on September 22, 2016. Jones testified that he tried to discuss the shoes with Dr. Smith at the August 2016 visit and that they did discuss the shoes at the September 2016 visit. Specifically, Dr. Smith advised him that the shoes were not acceptable to Security at Red Onion because they had laces and metal eyelets. Jones testified that Dr. Smith did not explain to him why he would not be fitted for new shoes. Jones testified that Dr. Boakye began providing medical services at Red Onion between September 2016 and March 2017. He stated that he saw Dr. Boakye in January 2017, at which time he ordered that Jones receive orthopedic footwear. This order was sent to Powell Prosthetics & Orthotics, (“Powell”). Jones stated on cross-examination that he was not aware that Dr. Boakye had difficulty contacting Powell. Jones testified that he did not go to Powell for measurements or fittings at that time, as his prior measurements from January 2016 were going to be used. However, Jones testified that he did not receive orthopedic boots and shoes because they were going to be too expensive. Jones stated that he was not aware whether Powell actually began working on these shoes. According to Jones, Dr. Boakye was trying to help him. Jones testified that, after deciding that the new orthopedic footwear would be too expensive, he asked about the possibility of retrofitting his shoes. Jones’s walking shoes were eventually retrofitted, but he received new orthopedic boots. Specifically, Jones testified that Dr. Kevin Fox wrote an order for him to receive orthopedic footwear on July 11, 2017. (Plaintiff’s Ex. No. 1, Docket Item No. 83-1.) He was fitted for the boots in August 2017 and received them in September 2017, but they had to be returned because they were black, which are not approved by Security. Jones received Security-approved -4- brown boots in November 2017. Jones paid only a $10 co-pay for the boots due to a change in VDOC policy.3 Jones testified that, until he received the orthopedic boots in November 2017, he experienced severe pain with walking or standing for long periods of time and that his basic mobility was reduced. He testified that the surgical hardware in his left foot causes pain when he walks. Jones testified that he could not exercise, and he avoided walking as much as possible. Jones testified that, when he was without any orthopedic shoes, he was not offered any alternative treatment for his pain. Jones testified that he was held in segregation for a week when he arrived at Red Onion. Other than that, he was housed in general population. He stated that, during 2016, he did not play basketball or engage in physical activity, other than using the “pull-up bars.” Jones testified that he submitted several Request Forms to various individuals, and the response was that he was placed on sick call. Jones testified that he sent a Request Form to the Warden, but it was routed to Vicki Phipps, who stated that the decision was up to Security and that his footwear had not been approved. She further stated that Dr. Smith would have to order more orthopedic shoes if he felt they were medically necessary. Jones testified that he submitted additional Request Forms to Medical in an effort to demonstrate his medical necessity for the shoes. However, Phipps only responded that Dr. Smith was continuing to work on the issue. Jones testified that he never met Phipps or spoke with her personally. He testified that he was aware that Phipps left Red Onion at the end of January 2017. 3 Jones testified that, although this new policy did not become effective until January 1, 2018, he was charged only the $10 co-pay.

Load more