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.
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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. -5-
Jones testified that he wrote to the VDOC’s Health Services Unit on October 2, 2016, seeking help obtaining a medical transfer to a VDOC facility where he could either use the orthopedic footwear he had or obtain new shoes he could use. The response he received from Sherida Davis-Bryan, the VDOC’s Correspondence Unit Manager, was to contact Red Onion officials regarding such a transfer. Based on this response, Jones sent a Request Form to Phipps, dated December 14, 2016, seeking a medical transfer, stating that he was in a great amount of pain without his orthopedic footwear and noting that she had not been able to find him appropriate replacements. (Plaintiff’s Ex. No. 3, Docket Item No. 83-2.) Jones asked that Phipps submit a medical transfer to Central Classification Services, (“CCS”), on his behalf. Phipps responded on December 20, 2016, that she had reviewed Jones’s medical record, but saw no medical reason to request a medical transfer at that time.
Gregory Tyrone Gary-Bey, an inmate housed at Red Onion since October 15, 2015, inmate number 1182835, also testified on Jones’s behalf. Gary-Bey testified that he suffered from diabetes, but did not have orthopedic shoes when he arrived at Red Onion. He stated that he saw Dr. Smith on October 18, 2015, for an intake assessment. Gary-Bey testified that Dr. Smith ordered him orthopedic shoes with Velcro straps in June 2016. Gary-Bey testified that he needed orthopedic shoes because his diabetes could cause pressure sores, and he suffered from diabetic nerve pain. He described such “diabetic shoes” as having Velcro straps and having more support with foam cushioning. Gary-Bey testified that Dr. Smith was very cooperative. He stated that he received a new pair of orthopedic shoes on December 12, 2018, from Bristol Orthotics once the initial pair of shoes wore out. Gary-Bey testified that this second pair of shoes was ordered by Nurse Practitioner Ball at some time earlier in 2018.
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Jones also submitted some of his medical records, as well as some institutional requests, into evidence during the bench trial for the court’s consideration. In particular, Jones submitted a record from Powell, dated November 24, 2015, at which time he was incarcerated at Sussex II. (Docket Item No. 83-3 at 1-2.) This record shows that Jones was seen by Scott Campbell, C-Ped, for an evaluation, measurements and service estimate for bilateral orthopedic extra depth boots and shoes. Campbell noted that Jones was using boots and custom orthotics he had received from Powell in 2012. It was noted that Jones understood the device would help him walk normally with reduced or no pain. It further was noted that Jones’s next visit would be for fitting of the boots and shoes, and if they fit properly, Jones would receive them at that time. The service estimate for the boots and shoes was $370.74. (Docket Item No. 83-3 at 2.) In a form entitled “Medical Transfer Comments,” dated June 19, 2016, Denea White, RN at Nottoway, noted that Jones’s physical from June 7, 2016, revealed that his medical problems requiring attention included hypertension, right shoulder arthroscopy, right medial and lateral meniscectomy and bipolar depression. (Docket Item No. 83-3 at 3.) White noted that Jones needed to be followed in Chronic Care Clinic for hypertension, and he needed a psychiatric follow up.
Jones sent an Inmate Request for Information/Services, dated June 25, 2016, to Medical, stating that Dr. Smith had reapproved his prescribed orthopedic boots and shoes after verifying his medical need for them. (Plaintiff’s Ex. No. 8, Docket Item No. 83-7.) Jones asked Phipps to have Sgt. Farmer turn the footwear over to Major Tate so he could approve them. Jones stated that Major Tate had assured him on numerous occasions that he would approve them as long as they were metal free. Jones stated that the shoes and boots both were metal free and approved for wear at all Level 4 and Level 5 institutions. Jones stated that the footwear was purchased while he was housed at Sussex II. He stated that he was in pain while -7- walking without them. Jones asked, alternatively, that Phipps begin the process to replace the footwear, and he advised her he had purchased the boots, shoes and orthotics from Powell and how much they cost. He stated that he had spoken to Sgt. Farmer to no avail, and he had spoken with Major Tate. Jones further stated “I feel I will have to[] write to Health Service[s] about the delib[e]rate indifference to my medical needs.” On July 1, 2016, Phipps responded that the request was repetitive.
A Health Services Complaint and Treatment Form indicates that when Jones saw Dr. Smith on July 7, 2016, Dr. Smith advised Jones that he had discussed the confiscated work boots with “Security/Property,” but they were not approved because they had metal eyelets and shoe laces. (Docket Item No. 83-3 at 5.) A Nursing Evaluation Tool form, dated July 11, 2016, showed that Jones saw L. Bostic, LPN, for general sick call. (Docket Item No. 83-3 at 6.) He requested medication renewal for Bentyl for pain. Bostic noted that Jones ambulated to his cell door with a steady gait. She referred him to the doctor.
On July 10, 2016, Jones sent a letter to Warden Barksdale, explaining that his orthopedic shoes had been confiscated from him upon his arrival at Red Onion, despite being advised by the Medical Administrator at Sussex II that they were approved for all Level 5 institutions.4 (Plaintiff’s Ex. No. 7, Docket Item 83-6.) He stated that Dr. Smith had acknowledged the medical documentation for the orthopedic shoes and orthotics in his file at his intake assessment on June 7, 2016. He stated that a nurse informed him, shortly thereafter, that Dr. Smith had approved his usage of the prosthetics at Red Onion. Jones stated that he had been inquiring about when he would be issued his “prosthetics” from June 7 to June 23,
4 Jones testified that this was attached to a Request Form that he sent to Warden Barksdale. Jones has not provided the court with a copy of this Request Form.
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2016. He stated that he had written to Phipps, the Assistant Warden and to Barksdale for assistance in obtaining his orthopedic shoes and orthotics. He stated that, on June 23, 2016, he asked Sgt. Farmer when he would get them back, and Sgt. Farmer responded, “You will Fing get them when you Fing get them.” Jones stated that he had submitted an Informal Complaint related to this issue. He stated that on July 8, 2016, Unit Manager Younce informed him that Dr. Smith disapproved the boots and shoes because they were “streetwear.” The same day, he stated that he received an infraction from Sgt. Farmer. Jones stated that the custom orthotics were specifically made for the boots and shoes that were disapproved and would not fit in any state-issued shoe. He requested that Phipps contact “Regional or Health Services or … Powell” to determine whether they were approved for Level 5 usage. He further requested to be sent out and refitted for new orthopedic boots, shoes and orthotics for his serious medical need.
Another Nursing Evaluation Tool form, dated July 13, 2016, showed that Jones complained of bilateral knee pain during a general sick call appointment. (Docket Item No. 83-3 at 7.) He again was referred to the doctor.
Jones sent an Inmate Request for Information/Service to Medical on July 25, 2016, requesting to see Dr. Smith for a referral to have orthotics fitted into his shoes because they did not fit in his state-issued shoes. (Plaintiff’s Ex. No. 6, Docket Item No. 83-4 at 1.) Jones stated that he was in pain because he was not allowed to use his previously approved orthopedic shoes, stating that walking was difficult and painful and that his foot hurt more and more due to the amount of hardware in his left foot. Jones further stated that he needed to find out what “Dr. Smith … feels is the proper fit and wear for the ortho[]tics to see if it matches the orthoped[]ic surgeons and Dr. Mark Amonette, M.D. opinions and orders.” Jones stated that his orthotics were sold by Powell, and he gave the model numbers of the -9- boots and shoes he received, which Health Services had approved for usage at Level 4 and Level 5 institutions. Jones stated that the orthotics were custom made to fit his orthopedic boots and shoes. He asked that Powell be contacted to verify these statements. On July 27, 2016, P. Miller, an RN at Red Onion, noted that Jones was scheduled for sick call. A Health Services Complaint and Treatment Form, dated August 2, 2016, shows that Dr. Smith reviewed Jones’s medical chart, which showed osteoarthritis of the right knee per the orthopedic doctor. (Docket Item No. 83-3 at 9.) He further noted that an x-ray of the right knee showed osteophytes. Dr. Smith approved a neoprene sleeve for Jones’s right knee.
When Jones saw Dr. Smith on September 22, 2016, he complained of chronic right knee pain. (Docket Item No. 83-3 at 10.) He and Dr. Smith discussed shoes again, and Dr. Smith advised Jones that he would check on them again with “Property.” In a Health Services Complaint and Treatment Form, dated January 18, 2017, Dr. Boakye noted that Jones was seeking access to his prescribed footwear from the November 24, 2015, visit to Powell. (Docket Item No. 83-3 at 12.) Dr. Boakye noted that Jones had purchased new boots because he was unable to use his previous ones due to “Security and logistic reasons” because of the shoe laces. Dr. Boakye informed Jones that he needed verification, and he promised to find out if Powell would be able to supply Velcro strap footwear comparable to his present footwear. The following day, Dr. Boakye contacted Powell. (Docket Item No. 83-3 at 12.) On January 20, 2017, Powell advised Dr. Boakye that it was agreeable to provide institutional-friendly footwear. (Docket Item No. 83-3 at 12-13.) Dr. Boakye noted that Powell was requesting a prescription for the footwear.
On March 8, 2017, Jones saw Dr. Boakye during a sick call visit, at which time Dr. Boakye advised Jones of his conversation with Powell. (Docket Item No. -10-
83-3 at 13.) Dr. Boakye wrote a prescription for high-top footwear with Velcro straps without metallic components and with the same specifications as determined at the November 24, 2015, visit to Powell. Dr. Boakye instructed that the prescription be faxed to Powell. Jones expressed concern about the cost of the new boots and inquired whether his original boots could be sent to Augusta Correctional Center, (“Augusta”), for retrofitting (i.e. removal of the laces and conversion to Velcro straps). Alternatively, Jones inquired whether Powell could retrofit his old footwear. Dr. Boakye requested his Administrative Assistant to explore the possibilities at Augusta to retrofit Jones’s boots held in Property. Dr. Boakye suggested they wait for an invoice before visiting the possibility of alterations on previous footwear with Powell. In an addendum to this note, dated April 4, 2017, Dr. Boakye noted that Augusta had no service for retrofitting footwear. (Docket Item No. 83-3 at 14.)
On May 31, 2017, Jones sent an Offender Request form to Jonna Bledsoe, RN, stating that he saw the doctor that day and was informed that he would be issued a pair of insoles and an ankle brace per VDOC OP 750.3 until he was willing to pay the co-pay for his orthotics and shoes or boots. (Docket Item No. 83- 3 at 17.) Jones asked Bledsoe what model he would receive and told her the model he currently had, which was banned at Red Onion. Jones also asked how much they would cost. Jones advised Bledsoe he would pay the co-pay for the shoes or boots and asked if she would order them for him. No response is included on this Offender Request form. Also on May 31, 2017, Jones sent another Offender Request form to Bledsoe, in which he stated that Major Tate had advised him that he would approve Jones to have boots if they were necessary. (Docket Item No. 83-3 at 16.) Jones stated that his condition required lower and upper ankle support along with the orthotics, and he asked Bledsoe to show Major Tate a specific model of orthopedic shoe which could be ordered for him to see whether Tate -11- would approve it. Jones stated that he would pay the co-pay for the boots or shoes and the orthotics. He stated that he would also require a “profile” for his cell door for the loaner insole and ankle brace, as well as for his personal boots or shoes and orthotics so they would not be confiscated during a shakedown. Again, no response is included on this Offender Request form. In a June 2, 2017, email from Bledsoe to Dustin Farmer, Josh Owens, Gilbert Mullins, Angie Stallard and Patricia Adams, all VDOC employees, Bledsoe stated that Jones had again inquired about his boots, and she stated her belief that these boots are like “Red Wings” and not allowed at Red Onion.5 (Docket Item No. 83-3 at 18.) She inquired whether Jones could have the boots if they were altered with Velcro straps or if he would need completely new boots. Bledsoe stated that, once she received an answer, she would determine whether Medical would go to the Major with the issue. Bledsoe testified that this email was sent in response to one of Jones’s Offender Request forms.
A Nursing Evaluation Tool form, dated June 21, 2017, shows that Jones complained of having suffered from ankle pain for “a long time” during a general sick call visit. (Docket Item No. 83-3 at 15.) He described having left ankle pain that was achy and that it was hard to walk sometimes. Nurse Bostic noted no redness or edema of the left ankle, and she advised Jones to obtain over-the- counter ibuprofen until the doctor could review x-rays. Bostic referred Jones to see the doctor. In a Complaint and Treatment form, dated June 28, 2017, Dr. Fox noted that a review of the chart showed that Jones had orthotic footwear to accommodate for a foot deformity from a prior fracture, but his current shoe was not permitted at Red Onion due to Security. (Docket Item No. 83-3 at 19.) Dr. Fox noted that, if Jones desired a new shoe, this would need to be approved by a QMC and would require a co-pay. Dr. Fox instructed to schedule Jones to discuss shoe options. On
5 Bledsoe testified that this is an email to the Property Sergeant at Red Onion. -12-
July 6, 2017, Jones saw Dr. Fox for a follow-up appointment and to get new work boots. (Docket Item No. 83-3 at 19.) Dr. Fox again noted that Jones’s current boots were not allowed at Red Onion by Security. He further noted that Jones had a left ankle deformity due to an old fracture and surgery, which required a custom fit boot. This appointment with Dr. Fox resulted in a QMC Consultation Request for orthotic shoe replacement, which was opened on July 11, 2017. (Docket Item No. 83-3 at 20.) Dr. Fox noted that Jones’s pertinent physical findings included deformity and chronic swelling of the left ankle due to surgery. He further noted that a high-top would support the ankle deformity, and the inserts would help the calcaneus. The request was approved on July 31, 2017.
Dr. Happy Earl Smith, M.D., also provided testimony at the bench trial. Dr. Smith testified that he had worked in the VDOC as a contract physician since 1985 and at Red Onion off and on for several years. He stated that he last worked at Red Onion for most of the 2016 calendar year. Dr. Smith testified that he saw Jones on June 7, 2016, at intake, at which time he renewed Jones’s medications and placed him on chronic care. He stated that he noted that Jones had presented with a receipt for orthopedic shoes, and he noted that Jones had previously undergone a calcaneus/talus fusion. He noted that Jones had degenerative joint disease, or osteoarthritis. Dr. Smith testified that Jones suffered a prior ankle fracture and that he had osteoarthritis in the ankle. He testified that Jones obtained orthopedic shoes to help with a leg length discrepancy. Dr. Smith testified that this leg length discrepancy was likely what was causing problems with Jones’s knee and hip. Dr. Smith stated that Jones had shown no progressive problems with his ankle. Dr. Smith testified that any ankle pain Jones experienced should have been alleviated by the Mobic he was prescribed. He testified that an orthopedic shoe would treat gait issues due to his leg length discrepancy. Dr. Smith also testified that a better cushioned shoe could have helped alleviate pain from the hardware in Jones’s left -13- foot. Dr. Smith further testified that physical examination showed that Jones had a functional range of motion and a stable gait without the shoes. X-rays showed no progression in his condition and that the surgical fixation was excellent. Dr. Smith testified that Jones would have some progression with his degenerative arthritis. Dr. Smith testified that he simply disagreed with Jones’s characterization of being in extreme pain.
Dr. Smith testified that, at the end of June 2016, he renewed Jones’s medications, including Mobic, to treat his osteoarthritic conditions. Dr. Smith testified that he again saw Jones on July 7, 2016, at which time he noted that he had discussed Jones’s boots with Security and Property, but was advised that metal eyelets were not approved for use at Red Onion. Dr. Smith further testified that he saw Jones on August 2, 2016, for right knee pain. He advised Jones that he had osteophytes in the right knee, and he obtained a neoprene sleeve for it. Dr. Smith testified that he did not recall Jones mentioning anything about his foot at this visit. When he saw Jones on September 22, 2016, he testified, he did discuss the shoes, but that Jones’s main complaint was his knee and his hearing. Dr. Smith did advise Jones at that time that he would check with Property to see if the shoes could be altered.
Dr. Smith testified that he had no way of ordering a new orthopedic shoe for Jones because Red Onion did not have an approved orthotics vendor at that time. When asked whether he was aware that Powell was an approved vendor, Dr. Smith testified that he did not remember whether he was aware of it at that time, but even if he had been, he would not have wanted to use Powell due to certain prior workmanship issues. However, Dr. Smith testified that he worked with Security to try to get Jones’s old shoes approved for usage at Red Onion. He stated that he had discussed Jones’s situation with Phipps, and they were working to get a vendor to -14- come to Red Onion. Dr. Smith testified that it was not his responsibility to contact an outside vendor. Instead, Dr. Smith testified that he makes treatment recommendations for inmates and follows up with and treats them. Dr. Smith stated “We were doing our best.” He further testified that he would have gotten orthopedic shoes for Jones if he could have. He stated that while Security disapproved the old shoes, he never disapproved them. Dr. Smith further testified that the orthopedic shoes Jones had been prescribed were medically necessary for the elevation of his left foot, but not for his arthritic condition. He testified, however, that such a shoe would provide extra support for the surgical hardware in his foot. Dr. Smith testified that he did not recall seeing any of Jones’s Offender Request forms related to this issue.
Vicki Phipps, the former Medical Administrator and Director of Nursing at Red Onion, also testified at Jones’s bench trial. Phipps testified that she retired from the VDOC from these positions at Red Onion on January 24, 2017. She stated that, in her role as the Medical Administrator, she was responsible for the overall operation of the Medical Department at Red Onion. On cross-examination, Phipps testified that Dr. Smith was not “kept out of the loop” regarding Jones’s Offender Request forms. Phipps testified, instead, that, when Dr. Smith was on-site, they discussed the inmates, but it was her job to respond to the Request forms. Phipps testified that she spoke to Dr. Smith about Jones’s issue and that she contacted Powell, Alexander Prosthetics and a company in Johnson City, Tennessee, but none of them would agree to travel to Red Onion. Phipps testified that it would take a very long time to arrange for Jones to attend an appointment at Powell in Richmond, and this is when they decided to inquire whether his boots could be retrofitted at Augusta. However, Phipps testified that Augusta informed them that they did not want to do this.
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Phipps also testified that she received Jones’s Request form seeking a transfer to another institution where he could use his orthopedic shoes and boots. She responded that she did not see any need for a medical transfer at that time because such a transfer must be based on a serious medical need that could not be cared for at Red Onion. She testified that she knew a transfer based on a lack of orthopedic shoes would not be approved.
Jonna Bledsoe, the current Nurse Manager at Red Onion, also testified at the bench trial. She testified that she had worked for the VDOC since 2015 and took over Phipps’s position after her retirement at the end of January 2017. Bledsoe testified that Jones voiced to her an issue with his boots. She testified that Red Onion did not have an approved orthotics vendor when she began working there in February 2017. Bledsoe testified that she spoke to Dr. Boakye about this issue, and Dr. Boakye attempted to help Jones by contacting Powell. However, Powell ultimately never provided shoes for Jones. Dr. Boakye left his position at Red Onion, and Dr. Fox, the Regional Physician, took over in the interim until another physician was hired to replace Dr. Boakye. Bledsoe testified that she and Dr. Boakye tried to do whatever they could for Jones, but Jones did not receive new orthopedic shoes until Dr. Fox took over for Dr. Boakye. Jones ultimately was provided with orthopedic shoes by Excel Prosthetics. Bledsoe testified that several vendors were contacted before Excel Prosthetics agreed to manufacture the footwear. Bledsoe testified that on November 1, 2017, Jones received black orthopedic boots, which had to be returned because the color was disapproved by Security. Thereafter, Jones received acceptable, brown boots, but he did not have to pay for them because he had to wait from February until November to get them. Bledsoe testified that, at the time of the bench trial, Red Onion was using Bristol Orthotics as its vendor and that they travel to the institution to see inmates. She testified that a typical wait for orthopedic shoes, when Red Onion has a contracted -16- vendor, is approximately two to four months after the inmate initially sees the vendor.
Bledsoe testified that Jones asked her about getting a medical transfer, and she told him that Red Onion could handle all offenders. She testified that a medical transfer could be ordered for an emergency. Bledsoe testified that she could initiate, but not approve, a medical transfer. She testified that she did not think Jones could get approval for a medical transfer based on shoes. Bledsoe testified that she had been advised that Jones had played some basketball during recreation at Red Onion.
Jessica King, the Institutional Operations Manager and the ADA Coordinator at Red Onion, testified by videoconferencing at Jones’s bench trial. King testified that she is familiar with prosthetic devices allowed at Red Onion. She testified that because Red Onion is the highest security level institution in Virginia, inmates have limited access to metal. King testified that Jones arrived at Red Onion with orthopedic shoes, but they were confiscated. She testified that she had watched Jones engage in outdoor recreation, including basketball, at some time in 2016 when he did not have orthopedic shoes.
II. Analysis
The plaintiff asserting a § 1983 claim has the burden of proof. See Oliver v. Powell, 250 F. Supp. 2d 593, 598 (E.D. Va. 2002). The Eighth Amendment to the U.S. Constitution not only prohibits excessive sentences, but it also “protects inmates from inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). This includes a requirement that a state provide medical care to those it punishes by incarceration. See Estelle v. Gamble, -17-
429 U.S. 97, 103 (1976); Godfrey v. Russell, 2015 WL 5657037, at *8 (W.D. Va. Sept. 24, 2015) (citing Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977)); Chapman v. Rhodes, 434 F. Supp. 1007, 1020 (S.D. Ohio 1977), aff’d, 624 F.2d 1099 (6th Cir. 1980), rev’d on other grounds, 452 U.S. 337, 344 (1981). A claim for deliberate indifference to serious medical needs requires both an objective and a subjective showing. Objectively, the medical condition must be “sufficiently serious,” meaning that it is “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 (4th Cir. 2008). A medical need serious enough to give rise to a constitutional claim involves a condition that places the inmate at a substantial risk of serious harm, usually loss of life or permanent disability, or a condition for which lack of treatment perpetuates severe pain. See Farmer v. Brennan, 511 U.S. 825, 832-35 (1994); Sosebee v. Murphy, 797 F.2d 179, 182-83 (4th Cir. 1986); Loe v. Armistead, 582 F.2d 1291, 1296-97 (4th Cir. 1978); Rush v. Vandevander, 2008 WL 495651, at *1 (W.D. Va. Feb. 21, 2008). As for the second, subjective component, a defendant must be “deliberately indifferent,” which occurs when he “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837 (“the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference”); see also Iko, 535 F.3d at 241.
Based on the evidence presented at trial, the court finds that Jones has shown by the preponderance of the evidence the existence of a serious medical need. More specifically, I find that the evidence at trial showed that Jones suffered a fracture of the left ankle/foot in 2004, requiring surgical repair with hardware. Jones testified that he was first prescribed and received orthopedic/orthotic footwear in 2004, prior to his incarceration in the VDOC. Additionally, the court -18- has evidence before it that, once incarcerated, medical providers at both Nottoway and Sussex II noted Jones’s need for such orthopedic/orthotic footwear, and he was prescribed the same. Jones testified that he suffers pain without his orthopedic/orthotic footwear, and the medical records and Request forms admitted into evidence reflect Jones’s complaints of pain. Moreover, Dr. Smith testified that Jones has osteoarthritis in his left ankle, as well as a leg length discrepancy, with the left leg being shorter than the right. He testified that Jones has a medical need for orthopedic/orthotic shoes due to this leg length discrepancy, and he testified that the extra cushioning in such shoes would help to alleviate Jones’s pain with walking due to the presence of the surgical hardware.
Based on the above-stated reasons, I find that the evidence shows that Jones has a diagnosed medical condition of the left ankle and left leg mandating treatment and that he suffered severe pain during the time period that he was without orthopedic/orthotic footwear. That being the case, I also find that Jones has sufficiently shown that his left ankle/foot injury with resulting osteoarthritis and leg length discrepancy constitutes a serious medical need.
Next, I must determine whether Jones has sufficiently met the subjective component of a deliberate indifference claim. More specifically, the evidence must show that the defendants subjectively recognized that their actions were inappropriate in light of a substantial risk of serious harm to Jones. It is insufficient that they should have recognized that their actions were inappropriate. See Brown v. Harris, 240 F.3d 383, 390-91 (4th Cir. 2001). For the reasons that follow, I find that neither Dr. Smith nor Phipps was deliberately indifferent to Jones’s serious medical need.
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In order to show deliberate indifference on the part of a medical provider, such as Dr. Smith, the plaintiff must show that the treatment provided was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990). Based on the evidence before the court, I cannot find that Dr. Smith’s treatment of Jones rises to this level. In particular, the evidence shows that Dr. Smith first saw Jones in June 2016, at which time he was made aware that Jones had medically prescribed orthopedic footwear that had been confiscated upon his arrival at the institution. At the end of June 2016, Dr. Smith renewed Jones’s medications, including Mobic, to treat his osteoarthritic conditions. On July 7, 2016, Dr. Smith advised Jones that he had discussed his boots with Security and Property, but was advised the metal eyelets were not approved. In September 2016, Dr. Smith again advised Jones that this footwear was not approved at Red Onion due to the laces on both pairs of shoes and the metal eyelets on the boots. However, he informed Jones that he would check on them again with Property.
The evidence also shows that, during the time Dr. Smith was treating Jones, Red Onion did not have a contract with an approved orthotics vendor. While evidence was presented that Powell was a VDOC-approved orthotics vendor at that time, it was located in Richmond, several hours away, and Dr. Smith testified that he could not recollect whether he was aware of Powell’s approved status at that time. Additionally, as a treating physician at Red Onion, Dr. Smith had no responsibility to contact other vendors on Jones’s behalf. Given the absence of an approved orthotics vendor at Red Onion, any order Dr. Smith would have written for replacement shoes and orthotics would have been useless, and Dr. Smith testified to this. Nonetheless, he further testified that, had he been aware that Powell was a VDOC-approved vendor, he would not have used them due to a history of questionable workmanship related to prior orthopedic shoes they had -20- made for Jones. In any event, the evidence shows that Dr. Smith continued to work with Phipps to get Jones’s old shoes approved by Security. He testified that “We were doing our best,” and he stated that if he could have obtained the orthopedic footwear for Jones, he would have done so. Thus, while Dr. Smith saw Jones on only three occasions, the medical notes reveal his attempts to assist Jones in getting his orthopedic footwear returned from Property. Dr. Smith also prescribed Mobic, which would treat all of Jones’s osteoarthritic pain. Finally, although Dr. Smith stated he would have ordered orthopedic/orthotic shoes for Jones if he could have, there was no VDOC-approved orthotics vendor for Red Onion during the time he treated Jones, and it was not Dr. Smith’s responsibility to search for such a vendor. For these reasons, I cannot find that the medical treatment that Dr. Smith provided to Jones was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier, 896 F.2d at 851. That being the case, I further find that Jones has failed to show by a preponderance of the evidence that Dr. Smith was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment.
For the reasons that follow, I, likewise, find that Phipps was not deliberately indifferent to Jones’s serious medical needs. In order to show deliberate indifference on the part of a prison official, such as Phipps,6 not providing medical treatment to a plaintiff, Jones must show that she was personally involved with a denial of treatment, deliberately interfered with a prison doctor’s treatment or tacitly authorized or was indifferent to the medical provider’s misconduct when even a lay person would understand that the medical provider is being deliberately indifferent. See Miltier, 896 F.2d at 854. Based on the evidence before it, the court
6 There is no evidence that Phipps, although an RN, provided any medical treatment to Jones in her role as the Medical Administrator and the Director of Nursing at Red Onion. -21- cannot find that Phipps did any of these things. Jones does not allege that he ever personally spoke with Phipps regarding his desires to have his orthopedic/orthotic footwear either returned from Property, retrofitted or to have replacement footwear ordered. Instead, he submitted Request forms to Phipps related to these issues, to which she responded. In particular, in response to a Request form submitted by Jones on July 10, 2016, Phipps advised Jones that the return of his orthopedic footwear was a decision for Security and that his footwear had not been approved by Security. (Plaintiff’s Ex. No. 6, Docket Item No. 83-5.) Phipps also advised Jones that Dr. Smith would have to order more orthopedic shoes for Jones if he determined they were medically necessary. On July 1, 2016, Phipps responded to another Request form regarding these issues, stating that it was repetitive. (Plaintiff’s Ex. No. 8, Docket Item No. 83-7.) Finally, Jones testified that Phipps also responded to a Request form, stating that Dr. Smith was continuing to work on this issue for him. However, Jones did not submit into evidence a Request form containing such a response.
Phipps testified that she spoke with Dr. Smith regarding Jones’s issues with his orthopedic footwear. She further testified that she contacted multiple orthotics companies, including Powell, but none of them would agree to travel to Red Onion. Given this difficulty, Phipps testified that she and Dr. Smith decided to investigate the possibility of getting Jones’s orthopedic boots retrofitted at Augusta to comply with Security standards at Red Onion. However, they learned that this was not an option. Dr. Smith corroborated Phipps’s testimony that she had advised him of Jones’s situation and that they were working to try to get a vendor to travel to Red Onion.
The court finds that this evidence does not show that Phipps was personally involved in a denial of any treatment to Jones. Instead, the court finds that it shows -22- she was relaying information to Jones that his orthopedic footwear was not approved by Security, that Dr. Smith was continuing in his efforts to assist Jones with this issue and that Phipps, herself, was attempting to locate an orthotics vendor that was agreeable to travel to Red Onion to see Jones. Thus, the court finds that this evidence also fails to show that Phipps deliberately interfered with a prison doctor’s treatment of Jones. Finally, for the reasons stated herein, there was no misconduct on Dr. Smith’s part related to his treatment of Jones. Therefore, I cannot find that Phipps was deliberately indifferent to any such misconduct.
Jones also claims that Phipps was deliberately indifferent to his serious medical needs by failing to transfer him to another facility where he could use his orthopedic footwear that was confiscated by Security at Red Onion. However, the court finds that this claim also fails. Jones submitted a Request form on December 14, 2016, asking Phipps to submit a medical transfer to CSS on his behalf, as she had been unable to secure replacement orthopedic footwear for him, which caused him a great deal of pain. Phipps responded that she had reviewed Jones’s medical record, but saw no medical reason to request a medical transfer on his behalf at that time. Phipps testified that such a transfer must be based on a serious medical need that could not be cared for at Red Onion and that Red Onion could adequately treat Jones’s medical condition. Moreover, Phipps testified that, in her experience, a medical transfer would not be approved for Jones based on a lack of orthopedic shoes. Bledsoe provided testimony which corroborated that of Phipps. Bledsoe, who replaced Phipps after her retirement, testified that when Jones asked her about getting a medical transfer, she advised him that Red Onion could handle all offenders. Bledsoe further testified that such a medical transfer could be ordered for an emergency. She stated that she did not think Jones could obtain a medical transfer based on his lack of orthopedic footwear. Bledsoe testified that, in her
-23- position, she could initiate a transfer request, but she had no authority to approve one.
It is for all of the above-stated reasons that I find that Jones has not met his burden of proof to persuade the court that the defendants were deliberately indifferent to his serious medical needs. The court will enter judgment in favor of the defendants.
The court is troubled by the evidence before it regarding the lack of a VDOC-approved orthotics vendor for some length of time at Red Onion. What is clear from the evidence is that the delay Jones experienced in receiving his orthopedic footwear was not for lack of trying on the behalf of the defendants. Dr. Smith, Phipps and Bledsoe all testified that there was no VDOC-approved orthotics vendor for Red Onion during the time that Dr. Smith treated Jones in 2016. The evidence does not make clear exactly how long Red Onion was without such a vendor, but Dr. Smith testified that he initially attempted to assist Jones in getting his orthopedic footwear approved by Security because he could not order a new pair due to the lack of a vendor. Dr. Smith treated Jones from June 2016 through at least September 2016. Phipps, likewise, testified that Red Onion did not have an approved orthotics vendor during this time, but that she contacted multiple vendors in an effort to assist Jones in obtaining new orthopedic footwear. Finally, Bledsoe testified that Red Onion did not have an approved orthotics vendor when she replaced Phipps in February 2017. Although Excel ultimately provided Jones with the necessary orthopedic footwear in November 2017, there is no evidence before the court that Excel became a contracted VDOC vendor. Instead, at the time of the bench trial, Bledsoe testified that Red Onion was using Bristol Orthotics as its approved vendor, but she did not state when this contractual relationship began.
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Thus, as far as the court can discern, Red Onion was without a VDOC-approved orthotics vendor from at least June 2016 through November 2017.
This is not the first incident of which this court has learned of the VDOC failing to secure adequate medical services for lengthy periods of time to various facilities. As Dr. Smith testified, it is not his responsibility to locate and secure an appropriate vendor to provide for the serious medical needs of the inmates under his care. While the VDOC is not before the court as a defendant in this case, the court would strongly suggest that it ensures the availability of such medical services in a timely fashion in the future.
The Clerk is directed to send copies of this Findings Of Fact And Conclusions Of Law to all counsel of record and unrepresented parties.
Dated: February 20, 2019.
/s/ Pamela Meade Sargent UNITED STATES MAGISTRATE JUDGE
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