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Prisoner claims against COs proceed to trial

Plaintiff Joseph Fleming is an inmate at the River North Correctional Center. He is not able to support his body weight or walk unassisted because of a “slipped spine” and pinched nerve. He can stand with assistance, but only with extreme pain.

During intake, defendant Nurse Parks told Fleming that he could opt for either a wheelchair or cane while at the center; Fleming opted for a wheelchair. Fleming was not specifically advised that he would need to pass through metal detectors within the Center or that he could ask for a medical waiver for that requirement.

On November 28, 2015, Officer Lundy ordered Fleming to pass through the metal detector leading to the cafeteria. Fleming explained that he could not walk without assistance and feels pain when walking with assistance. Lundy said that Fleming would not be able to proceed for any reason unless he first walked through the metal detector. With the help of the inmate who was pushing his wheelchair, Fleming shuffled through the metal detector, stumbling, shaking, and grunting in pain.

This scenario repeated the next day. Fleming again attempted to pass through the metal detector, but this time his legs gave out, and he fell to the floor. Fleming’s knee struck the floor and became bruised, swollen, inflamed, and painful. He told Lundy he needed medical attention, but Lundy refused to contact the medical department and told Fleming to continue to the dining hall. After returning from the dining hall, Fleming again asked for medical assistance because the pain had worsened, but Lundy again refused.

Around midday, Fleming gave Officer Dean an emergency grievance seeking medical care. Policy requires the receiving officer to transmit the grievance to appropriate staff, who should answer it within eight hours. Around dinner time, Fleming asked a nurse whether they had received his grievance, and she said no. She examined Fleming’s knee and determined that there was no bruising or abrasion. She noted that the doctor should review Fleming’s eligibility for a waiver for the metal detectors. Fleming received the waiver at a medical appointment four days later, but alleges that he needed medication for the next several months to reduce knee pain.

Fleming has initiated this lawsuit, asserting that the Corrections Department and several individual Correctional Center employees violated his Eighth Amendment rights by being deliberately indifferent to his serious medical need, were negligent, and violated his rights under the Americans with Disabilities Act. For example, he alleges that Lundy conditioned the ability to eat meals on clearing the metal detector, which Fleming was unable to do because of his disability. Fleming seeks an order requiring every warden and head nurse to meet with him upon arrival at any Department facility and to exempt him from any circumstance that may pose a risk of substantial harm to him due to his disabilities.


The Department is not a proper defendant to claims pursued under § 1983. To the extent that Fleming seeks damages against corrections staff in their official capacity, such relief is also not cognizable under § 1983. Accordingly, the Department and its staff are entitled to summary judgment on those grounds.

To the extent that Fleming alleges that any defendants violated Department policies, such a claim does not state a federal claim. Fleming repeatedly alleges that individual defendants failed to perform their duties, but negligence is not actionable under § 1983. Accordingly, those individual defendants are entitled to qualified immunity and summary judgment on those grounds.

However, several disputed material facts preclude qualified immunity and summary judgment in favor of Officer Lundy. First, Lundy claims he was not working at the Correctional Center in November 2015, while Fleming maintains that he has named the appropriate Officer Lundy. A jury must resolve this question.

Second, a jury will have to resolve whether, at a minimum, Lundy recklessly disregarded a substantial risk of danger, either known to him or which would have been apparent to a reasonable person in his position. Fleming appeared to Lundy as a wheelchair-bound inmate escorted by a caretaker, both circumstances that would indicate that Fleming has a serious medical issue related to mobility. Fleming objected to Lundy’s first order to walk through the metal detector and explained his spinal injury and inability to walk without assistance, and he passed through the metal detector the first time with significant difficulty. Lundy made Fleming go through this process even though the facility’s policy allowed an alternative screening method for wheelchair-bound inmates.

Another question of material fact is the severity and extent of pain that Fleming suffered. After the fall, Lundy twice denied his pleas for medical assistance. Whether the pain Fleming experienced was sufficient for Eighth Amendment purposes is thus a question of disputed fact.

Similarly, Fleming’s claims against Officer Dean must be decided by jury because, while Fleming alleges that Dean never submitted the emergency grievance for processing, Dean has no recollection of receiving the grievance.

By contrast, Nurse Parks is entitled to summary judgment on this claim because, although she did not discuss with Fleming his complete inability to walk or the possibility of a wheelchair waiver for security screening, she did not herself have the authority to issue medical waivers. Accordingly, Fleming has not established that Nurse Parks was deliberately indifferent to a serious medical need.


The Department is immune from Fleming’s simple negligence claim, as are almost all of the individual defendant-employees. However, Nurse Parks has not established that she is a state employee, and her conclusory assertion of immunity is not sufficient to carry her burden to prove that she is entitled to qualified immunity. Because she has also not further addressed Fleming’s claim of simple negligence, this claim remains pending against her.

Moreover, Fleming’s gross negligence and willful and wanton negligence claims will continue against Lundy and Dean. The disputes of material fact addressed above implicate the same unresolved questions about these defendants’ alleged conduct, which caused Fleming’s injuries and suffering.

Accordingly, the Department’s motion for summary judgment is denied as to the Eighth Amendment, gross and willful negligence claims against Lundy and Dean. The motion is granted as to all other claims. Nurse Parks’ motion for summary judgment is granted as to all claims except simple negligence.

Fleming v. Clarke, Case No. 7:16cv410, Jan. 30, 2018; WDVA at Roanoke (Kiser). VLW No. 018-3-023, 14 pp.

VLW 018-3-023