Petition for Writ of Certiorari — Henderson v. Kessler

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

upreme ‘

2 3 2

94 602 SEP 19 1994

QEFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

ROGER HENDERSON,

PETITIONER

vs.

RAY KESSLER; EDWARD W. MURRAY;

DAVID A. WILLIAMS; and TIEN D. NGUYEN;

RESPONDENTS

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Richard D. Heideman

Counsel for Petitioner

The Heideman Law Group, P.C.

2023 Q Street, N.W.

Washington, D.C. 20009-1009

Telephone: (202) 462-8990

Telefax: (202) 462-8995

QUESTIONS PRESENTED

Whether the correct standard

for summary judgment was

applied?

Whether res judicata and/or

collateral estoppel apply to

bar Petitioners claims against

Respondents Murray, Kessler and

Williams?

TABLE OF CONTENTS

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

OPINIONS BELOW......cccccccecs jeneeee 6G

JURISDICTION. .....2200% ccocccccccccece &

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED... e*ee#e#ee#ee#e#s?# e*e*eeee#ee#ee#e#8#€e?€# e*eeee#ee#e#e¢ 3

STATEMENT OF THE CASE.......cee0. oe

REASONS FOR GRANTING THE WRIT........ 22

CONCLUSION... cccccces wevverrrrerrrretrer sy a4

INDEX TO APPENDICES

Appendix A Unpublished Opinion of the

Fourth Circuit Court of

APPEAlS..cccccccccccce 1

Appendix B Opinion of the District

Court for the Eastern

District of Virginia.. 19

Appendix C Amendment VIII to United

States Constitution... 32

Appendix D 42 U.S.C.§1983........ 33

Appendix E Amendment XIV to United

States Constitution... 34

Appendix F Dr. Bruce Coplin

deposition pages 43-45 35

Appendix G

Appendix H

Appendix I

Appendix J

Affidavit of Rex Smith 39

Dr. Nguyen deposition

BOGGS Lo BTFiccveccccece 43

Roger Henderson deposition

pages LepSZeccccccccece 46

Rule 56(c) of the Federal

Rules of Civil

PrOCeGurE.cccccccccscce 49

TABLE OF AUTHORITIES CITED

CASES PAGES

Allen v. McCurry, 449 U.S. 90 (1980).. 39

American Medical International Inc. v.

Secretary of Health, Education and

Welfare, 677 F.2d 120 (U.S. App. D.C.

USSS) cccccvccccsccecccccesccecescceces 32

Bates v. Devers, 202 S.E.2d 917 (Va.

1974) ccccccccccccceceessesceeeeos 33,34,35

Berlitz Schools of Languages of America

v. Everest House, 619 F.2d 211 (2d Cir.

L9EG) cccceccccevcceeseeceeneeeseeoeees 40

Carr v. District of Columbia, 646 F.2d

599 (U.S. App. D.C. LSSO) a cccvcscccces 32

Celotex Corp. v. Catrett, Adm’s of the

Estate of Catrett, 477 U.S. 317 (1986)

e*eeeeee#ee#ee#ecgee#ee#ee#ee#2ee#ee#e#e$e@ee#*ee#ee#ee#ee#ee#2ee#e#ee?#e#?*# 23,24,29,30

Commissioner of Interna] Revenue v.

Seem, 359 Ues GOk TAG a cddcwecece 34

Cortes-Quinones v. Jimenex-Nettleship,

842 F.2d 556 (1st Cir.

19O7) ccc ccecs ce eee Se eesescceeeresooves 25

Dee Farmer v. Brennan, et al.,114 S.Ct.

1970 C1994) ccccccccccccsesccceceses 24,25

Fleischer v. Detroit Cadillac Motor Co.,

165 N.Y.S. 245 (list Dept. 1917)....... 40

Graves v. Oligiata, 550 F.2d 1327 (CA2

LST TP cccscceeccccscecccecseeereeocoeocce 42

, 891 F.2d 829

(11ith Cir. 1990) -ccccccccccccccccccccs 25

Griffin v. Board of Education, 296

F.Supp. 1178 (E.D. Va. 1969).......... 35

Hicks v. Frey, 992 F.2d 1450 (6th Cir.

1993) reh’g denied (6th Cir. 1993).... 25

International Harvester v. OSHA, 628 F.2d

982 CL9SG) ccccvecsdedoccoestesesectocce 37

Leakas v. Columbia Country Club, 831 F.

Supp. Sg EP os ee ree a eo ee oy ara aS

Lombard v. Board of Ed. of New York City,

SOS F.BNcGOL (GAS BBTE) xe ostecdecccss 43

, 430

F.2d 862 (CA5 197GO) ccccccccccccccccecce 42

Marsh v. Arn, 937 F.2d 1056 (6th Cir.

LOGE) cc ccocsessveoseccestiecedéedeceesess 25

Moch v. East Baton Rogue Sch. Distr., 543

F.2d 594 CIDT Fp ccccccccewrecewccoceees 37

Vv , 439 U.S.

322 CIDTS) cwcedecccccccecesscecooce 32,40

Pickera]_v. Federal Land Bank of

Baltimore, 177 Va. 743 (1941)......... 34

Reynolds v. Borough of Avalon, 799

F.Supp. 442 (D.N.J. 1992S) ccccccceveces 25

, 896 F.2d 362

(9th se fo 1990) ccccccccccccccececececes 25

Smith v. Bill, 632 F.2d 316.cccecccecs 23

Societe Anonyme des Parfums le Galion v.

Jean Patou, Inc., 495 F.2d 1265 (1974)

e*eeeeese5cesteseer+f5e*ee#eersesereteenee#e#e#neteeeneree#see#ee8se#e#eé 36,

Spilker v. Hankin, 188 F.2d 35 (1951).

Center, Inc., Ky., 807 S.W. 2d 476

C1991) eccvcccccccccccccccsecccccencee dy

United States v. Deibold, 369 U.S. 654

(1962) ,ccccccccccccccccsccesccccccecccs

Ward v. Charlton, 177 Va. 101 (1941)..

STATUTES

United State Code

TICIS 26, SBSSCAER I19SB.cccccces Bz

United States Constitution

Eighth Amendment...........see. 3

Fourteenth Amendment.......se--.

Federal Rules of Civil Procedure

Rule S6(G) ccccccccccccccccccce 23

OTHER

Restatement 2nd, Judgments, §27....

vii

No.

IN THE SUPREME COURT

OF THE

UNITED STATES OF AMERICA

OCTOBER TERM, 1994

ROGER HENDERSON,

PETITIONER

vs.

RAY KESSLER; EDWARD W. MURRAY;

DAVID A. WILLIAMS; and TIEN D. NGUYEN;

RESPONDENTS

PETITION “OR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner, Roger Henderson,

respectfully prays that a writ of

certiorari is granted to review the

judgment and opinion of the United States

Court of Appeals for the Fourth Circuit

affirming the United States District

Court for the Eastern District of

Virginia, Richmond Division, in its entry

of summary judgment in favor of (a) Dr.

Tien N. Nguyen on the basis that the

petitioner failed to provide evidentiary

support for his allegations of deliberate

indifference, and (b) Ray Kessler, Edward

W. Murray and David A. Williams on the

basis of res judicata and collateral

estoppel.

OPINIONS BELOW

The unpublished opinion of the

Fourth Circuit Court of Appeals appears

in Appendix A to this Petition. The

unpublished written opinion of the

District Court for the Eastern District

of Virginia appears in Appendix B to this

Petition.

JURISDICTION

The Court of Appeals’ Opinion in

this matter was decided and entered on

June 20, 1994. This Court’s jurisdiction

is invoked under Title 28, U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS _

INVOLVED

Amendment VIII and Amendment XIV to

the United States Constitution are set

forth in Appendix C and E, respectively.

Title 42, U.S.C. § 1983 is set forth in

Appendix D. Rule 56(c) of the Federal

Rules of Civil Procedure set forth in

Appendix J.

STATEMENT OF THE CASE

The United States District Court,

Eastern District of Virginia, Richmond

Division, had jurisdiction over this

matter pursuant to Title 42, §1983 and

the 8th and 14th Amendments to the United

—————————————————e©CV=

States Constitution.

This is not a "mere" prisoners

rights lawsuit. This is a case involving

the substantive rights of a person

injured while in the custody of the

Virginia criminal penal systen.

Petitioner Roger Henderson walked

into the Virginia Correctional System;

when discharged from Powhatan

Correctional Center, Roger Henderson

rolled out in a wheelchair, to which he

is confined for the remainder of his

natural life.

Only the Supreme Court, as the Court

of last resort, can, and Roger Henderson .-

prays, will, allow him to finally have

his day in court so that he might sit

before a jury of his peers to decide

whether or not the prison officials

and/or medical provider were deliberately

indifferent to his medical needs, and if

2 ER me

so, to award him money damages for the

injuries sustained.

Roger Henderson believes the

Respondents failed and refused to

properly respond to his numerous

grievances and requests for medical care

but for which he would be today pursuing

a fruitful life instead of being in the

pitiful condition to which he is now

bound.

On August 17, 1988, Petitioner Roger

Henderson was being transported by

officers of the Richmond City Sheriff’s

Department to Henrico County Jail in the

Commonwealth of Virginia via prison van.

While en route to Henrico County Jail,

the driver of the van slammed on the

brakes to avoid an accident. As a result

of this sudden application of the brakes,

Mr. Henderson, who was handcuffed and

shackled at the time, was violently

}

thrown against the steel interior

bulkhead of the van. Mr. Henderson’s

head and back struck the bulkhead with

extreme force. Another prisoner, who was

chained to Mr. Henderson, was unavoidably

thrown on top of Mr. Henderson, pinning

Mr. Henderson against the bulkhead.

While incarcerated at Henrico County

Jail for five (5) months, Mr. Henderson

was housed in isolation at Henrico County

Jail, and experienced worsening pain in

his lower extremities, followed by loss

of sensation. As a result of Mr.

Henderson’s deteriorating medical

condition, he made numerous requests for

medical care and treatment. Mr.

Henderson was denied access to medical

care and appropriate treatment for his

worsening neurological condition caused

by the accident, and while housed at

Henrico County Jail he filed numerous

—_— —

complaints as a result of being denied

access to appropriate medical care and

treatment. Said complaints described

symptoms indicative of increasing

neurological problems. As described in

Mr. Henderson’s Inmate Grievances filed

on September 7, 1988, January 11, 1989

and January 29, 1989, Mr. Henderson

suffered increased back pain, severe

headaches and progressively decreased

sensation in both legs. On October 17,

1988, Donald Boswell, Sheriff of Henrico

County, stated that the jail physician,

Dr. Furman, who was not a neurologist,

"examined Henderson relevant to this

complaint and does not believe a

specialist opinion is necessary."

On October 28, 1988, Mr. Henderson,

as a result of his worsening neurological

condition, collapsed and was hospitalized

at the Medical College of Virginia in

Richmond, Virginia for eleven (11) days.

By this time, Mr. Henderson’s mobility

was so impaired that he could no longer

ambulate without the assistance of a

walker or wheelchair. |

On November 8, 1988, Mr. Henderson

was returned to Henrico County Jail. Mr.

Henderson was assigned to Pro-Class

Isolation, ostensibly for "observation,"

where he remained for several weeks.

The Prison Health Services Staff at

Henrico County Jail were not responsive

to Mr. Henderson’s numerous requests for

appropriate medical care, treatment or

for a wheelchair.

On March 7, 1989, Mr. Henderson was

transported to Powhatan Correctional

Center. At Powhatan Correctional Center,

Mr. Henderson, was placed into isolation

and denied medical attention, shower

facilities, religious services,

recreation and other basic privileges.

As a result of being denied medical care,

on March 28, 1989, Mr. Henderson filed an

Inmate Grievance on an emergency basis.

Such grievance described Mr. Henderson’s

progressing neurological deterioration,

including severe pain, severe headaches

and significant decreased sensation on

the left side of his body (face, arm and

hand). Mr. Henderson requested immediate

neurological testing. On March 29, 1989,

Mr. Henderson’s grievance was denied

emergency status, allegedly because Mr.

Henderson (1) was not subject to

_ substantial risk of personal injury and

(2) was not seriously or irreparably

harmed.

On March 31, 1989, Mr. Henderson

filed an Inmate Grievance complaining of

unwarranted detention in Powhatan’s

Mental Ward in a cell unfit for

habitation because it was covered with

human feces and reeked of urine, and that

he was still denied the use of a

wheelchair.

On April 30, 1989, Mr. Henderson

appealed to the regional Ombudsman,

citing the August 17, 1988 accident, the

subsequent maltreatment by correctional

authorities and his isolation at Henrico

county Jail and Powhatan Correctional

center due to the fact that neither

facility was equipped to house a

paraplegic inmate, and that he was in

need of medical care.

On May 19, 1989, Mr. Henderson filed

an Inmate Grievance where he again

described symptoms indicative of

progressing neurological deficits,

including "severe lower back pain," cold

legs, severe headaches and insomnia. Mr.

Henderson once again requested a

—_

neurological examination.

On June 5, 1989, Mr. Henderson,

dissatisfied with the Institutional

response to his grievance, filed an

appeal.

On June 28, 1989, Mr. Henderson

filed a second appeal, once again

demanding to see a neurologist.

On July 7, 1989, Mr. Henderson was

finally examined by a neurologist, nine

months after the October 12, 1988 denial

for a neurological examination,

referenced above.

The neurologist who examined Mr.

Henderson on July 7, 1989 recommended

that Mr. Henderson receive further

evaluation and testing, specifically an

MRI test, which was not performed for

thirty (30) days, despite said

neurologists repeated requests for said

test.

On July 12, 1989, Mr. Henderson, in

yet another attempt to receive proper

medical attention, filed another Inmate

Grievance complaining of a loss of

feeling in his left arm, severe

headaches, dizziness and swollen ankles.

On August 3, 1989, Mr. Henderson

appealed the Institutional Level I

response. Mr. Henderson noted that, due

to a lack of feeling, his left arm had

collapsed causing him to fall and strike

his head while attempting to use prison

toilet facilities that were not equipped

to accommodate paraplegics.

That prison and medical staff at

Powhatan Correctional Center did not

provide adequate treatment to Mr.

Henderson for injuries sustained as a

result of the fall set forth hereinabove.

On August 17, 1989, Mr. Henderson

filed an Inmate Grievance wherein he

sin seeeeennnneemmnemeel

alleged that the lack of proper

facilities for the handicapped at

Powhatan Correctional Center caused the

injuries sustained in the fall discussed

herein.

On May 9, 1990, Mr. Henderson filed

an Inmate Grievance wherein he

demonstrated that, after a nine (9) day

stay at Medical College of Virginia,

physicians determined that, by that time,

it would be futile to perform an

operation to restore the use of his legs

because his condition had deteriorated to

an inoperable state. Additionally, the

attendant risk associated with the

operation had increased while the

probability of success had

correspondingly decreased.

On June 22, 1990, Bruce Coplin,

M.D., of the Medical College of Virginia,

certified that Mr. Henderson suffered a

permanent disability in that he is unable

to ambulate and is wheelchair bound. The

deposition of Dr. Coplin (See Coplin

depo. p.43-45 attached hereto as Appendix

F p. 35-38) was taken in the then pending

action prior to trial on December 1, 1992

at which time Dr. Coplin confirmed under

oath that when he examined Roger

Henderson on June 5, 1990 his medical

condition was that of a paraplegia, with

a paralyzed bladder; he was a patient who

was wheelchair bound, unable to ambulate

and that the paralysis appeared to be

permanent at that time, finally

indicating that Roger Henderson was going

to be in a wheelchair for the rest of his

life and would not be able to walk again.

Today, Mr. Henderson is a disabled,

wheelchair-bound paraplegic, a condition

that, but for the accident of August 17,

1988 and resultant failure of the

defendants to render proper care and

treatment, would not have happened. Mr.

Henderson, simply put, did not receive

the immediate, proper, necessary and

continued attention that the Commonwealth

of Virginia and its officers and agents

were duty bound to provide. They were

indeed, deliberately indifferent to his

most serious medical needs, thereby

depriving him of the ability to ever walk

again.

Respondent Williams was the

Warden/Facility Director at Powhatan

Correctional Center, and in that capacity

was responsible for the operation of

Powhatan Correctional Center. During

the time of the Petitioner’s

incarceration, Respondent Williams did

not have in effect a policy, custon,

practice or regulation which provided

adequate training to all officers and

agents of the Powhatan Correctional

Center in the proper monitoring and

handling of the medical needs of inmates

incarcerated within the jurisdiction of

the Commonwealth of Virginia. The

failure of Respondent Williams not to

have in effect a policy, custom, practice

or regulation evidence a conscious and

deliberate indifference to the medical

needs of, and to provide adequate medical

care to and for inmates at Powhatan,

especially to the Petitioner. Respondent

Williams breached his duty of care to the

Petitioner by failing to have proper

policies and practices which would ensure

the provision of adequate medical care to

this Petitioner and inmates at Powhatan.

| At all times relevant to the within

action Respondents Kessler and Murpay

were the Deputy Director and/or Director

of the Virginia Department of

Corrections, and in that capacity were

responsible for the operation of the

Virginia Department of Corrections.

During the time of the Petitioner’s

incarceration, Respondents Kessler and

Murray did not have in effect a policy,

custom, practice or regulation which

provided adequate training to all

officers and agents of the Powhatan

Correctional center in the proper

monitoring and handling of the medical

needs of inmates incarcerated within the

jurisdiction of the Commonwealth of

Virginia. The failure of Respondents

Kessler and Murray not to have in effect

a policy, custom, practice or regulation

evidence a conscious and deliberate

indifference to the medical needs of, and

to provide adequate medical care to and

for inmates at Powhatan, especially to

the Petitioner. Respondents Kessler and

Murray breached their duty of care to the

Petitioner by failing to have proper

policies and practices which would ensure

the provision of adequate medical care to

this Petitioner and inmates at Powhatan.

At all times relevant to the within

action Respondent Nguyen was the

Attending Physician at Powhatan

Correctional Center, and in that capacity

was responsible for the operation of the

medical treatment facilities at Powhatan

Correctional Center. Respondent Nguyen

breached his duty of care owed to the

Petitioner, and was deliberately

indifferent to the medical needs of Roger

Henderson by failing to provide, treat

and diagnose his medical condition, and

failing and/or refusing to secure for

Roger Henderson the medical treatment so

clearly required.

Respondent Nguyen was acting

pursuant to the policies and practices

condoned and mandated by Appellees

Williams, Murray and Kessler.

Petitioner filed a Pro Se action in

the United States District Court for the

Eastern District of Virginia, Alexandria

Division. Subsequently, his employed

counsel, filed the instant action, also,

in the United States District Court for

the Eastern District of Virginia, but in

the Richmond Division. Petitioner’s

counsel filed a motion to consolidate

said actions below. The motion was

overruled. Roger Henderson, as a Pro Se

litigant, proceeded to hearings before

the United States Magistrate Judge in his

original action. Thereafter,

Petitioner’s counsel proceeded with

discovery and extensive trial preparation

in the instant action below. The case

was scheduled for trial by jury in

December 1992 on Petitioner’s Second

Amended Complaint, the court having held

a hearing on November 9, 1992 on

Respondents Motions to Dismiss, and

having overruled same as to the remaining

causes of action. Following such action

by the Court, Respondents then

immediately sought summary judgment on

the remaining causes of action, and were

granted such judgment by court order

dated 8 December 1992, days prior to the

commencement of trial in the instant

action. The Petitioner filed a Motion

for Reconsideration which was treated as

a Motion to Amend or Alter Judgment and

denied by court order dated February l,

1993. Petitioner filed a timely Notice

of Appeal in the United States Court of

Appeals for the Fourth Circuit.

On February 9, 1994 argument was

heard before the Fourth Circuit and on

June 20, 1994 the Fourth Circuit rendered

its opinion affirming the District

Court’s order granting the Respondents

motions for summary judgment.

The blatant facts of this case

delineate a horrible injustice done to

Roger Henderson. They speak for

themselves. It is unthinkable to the

Petitioner that the District Court, and

the Fourth Circuit Court of Appeals, have

denied this Petitioner’s right to trial

and his day in court, by the granting of

summary judgment over the strong

objections and filings, Affidavits,

pleadings and depositions of record

below.

REASONS FOR GRANTING THE WRIT

Certiorari should be granted for two

(2) reasons: (1) the District Court and

the Court of Appeals applied the wrong

standard for summary judgment; and (2)

The Fourth Circuit rendered their opinion

in conflict with other circuits regarding

the concept of res judicata and

collateral estoppel.

I. THE FOURTH CIRCUIT’S OPINION

CONFLICTS WITH THE CORRECT

STANDARD FOR SUMMARY JUDGMENT

This Court has clearly held that

upon a Motion for Summary Judgment

pursuant to Rule 56 of the Federal Rules

of Civil Procedure, the burden is on the

moving party to show conclusively that

there exists no genuine issue as to

material fact, considering the evidence

most favorably to the party against whom

the motion is directed. United States v.

; | |

Deibold, Inc., 369 U.S. 654, 655 (1962) .'

According to Fed. R. Civ. P. 56(c),

summary judgment is proper only,

if the pleadings, depositions,

answers to interrogatories, and

admissions on file, together with

the affidavits, if any, show that

there is no genuine issue as to any

material fact and that the moving

party is entitled to a judgment as a

matter of law. Id.

In Celotex Corp. v. Catrett, Adm’x of the

Estate of Catrett, 477 U.S. 317, 322

(1986), the Supreme Court delineated how

a party moving for summary judgment must

demonstrate to the court that no such

issue of material fact exists:

A party seeking summary judgment

always bears the initial

responsibility of informing the

district court of the basis for its

motion, and identifying those

portions of ‘the pleadings,

' The Fourth Circuit has adopted the holding

that the record and evidence should be considered in

the light most favorable to the non-movant. Smith v.

Hill, 632 F.2d 316, at 338; Leakas v. Columbia Country

Club, 831 F.Supp. 1231, at 1235.

depositions, answers to

interrogatories, and admissions on

file together with the affidavits,

if any,’ which it believes

demonstrate the absence of a genuine

issue of material fact.

Id. at 323.

The Opinion of the Fourth Circuit

below conflicts with this Court’s holding

in Celotex and following cases. Here the

- Fourth Circuit held that,

Doctor Nguyen’s actions simply

do not approach the level of

deliberate indifference

proscribed by the Eighth

Amendment. If mistakes were

indeed made, they were mistakes

of medical judgment impervious

to judicial review in a §1983

action.

By deciding that the Respondents did not

act with deliberate indifference’, the

? The standard of deliberate indifference applied

by the Fourth Circuit in this matter conflicts with a

previous decision of this Court. On 6 June 1994, this

Court decided the matter of v

Brennan, Warden, 114 S.Ct. 1970 (1994), setting forth a

new standard to apply to Eighth Amendment deliberate

indifference cases. The Court adopted the "subjective

lower courts decided a question of fact,

and accordingly, clearly invaded the

province of the jury.°

recklessness" standard to define deliberate indifference

and held that "[a]n Eighth Amendment claimant need

not show that a prison official acted or failed to act

believing that harm actually would befall an inmate; it is

enough that the official acted or failed to act despite his

knowledge of a substantial risk of serious harm. Id. at

1980. On 20 June 1994, fourteen (14) days after this

Court rendered its opinion in Dee Farmer as to the

applicable standard one should apply in deliberate

indifference cases, the Court of Appeals for the Fourth

Circuit affirmed the decision of the District Court

without any reference to Dee Farmer. Accordingly, for

failing to apply the correct standard of deliberate

indifference, a writ of certiorari should issue to review

the judgment and opinion of the Court of Appeals in

this matter.

* The question of whether or not the prison

officials and doctors who treated Petitioner Henderson

acted with deliberate indifference was a question of fact

for a jury to decide and therefore precluded a finding of

summary judgment. See Greason, et al. v. Kemp, 891

F.2d 829, 835 (11th Cir. 1990); Marsh v. Arn, 937 F. 2d

1056 (6th Cir. 1991) reh’g denied (6th Cir. 1991); Hicks

v. Frey, 992 F. 2d 1450, 1453 (6th. Cir. 1993) reh’g

denied (6th Cir. 1993); Cortes-Quinones v. Jimenez-

Nettleship, 842 F. 2d 556, 562 (1st Cir. 1987); Reynolds

v. Borough of Avalon, 799 F.Supp. 442, 446 (D. NJ.

1992); See Also Redman v. City of San Diego, 896 F.2d

Based upon the evidence and record

presented to the District Court and the

Fourth Circuit there was more than

sufficient evidence on both sides to

create a clear genuine issue of material

fact as to whether or not the Respondents

acted with deliberate indifference toward

Petitioner’s health and well being.

The record is replete with evidence

in support of Petitioner’s claims of

deliberate indifference. The record

consists of the following, but not

limited, evidence:

1. That Petitioner Henderson made

approximately nine (9) grievances

concerning the medical treatment which he

received and/or failed to receive, and

outlining his medical condition, need for

treatment, and his demand for treatment.

362, 370 (9th Cir. 1990)(Tang J., concurring).

2. Rex Smith, Petitioner’s expert,

opined that the "defendants failure was a

result of their individual and collective

deliberate indifference toward the

establishment, promulgation and

implementation of the appropriate and

necessary policies and procedures." See

Smith Affidavit attached hereto as

Appendix G p.39-42 and incorporated

herein by reference. Said Affidavit was

also of record before the Court of

Appeals for the Fourth Circuit in the

Joint Appendix.

3. In Roger R. Henderson v. D.T.

Mahon, Judge Brinkema concluded in her

Report and Recommendation that "the vDOC

may have erred in sending Plaintiff

{[petitioner]) to a facility not adapted to

his special physical needs..." (Report,

October 15, 1992, at 8).

4. During Petitioners incarceration

at the Powhatan Correctional Center,

Petitioner described the "physical

therapy" he received as consisting only

of a TENS Unit being placed on his body.

See Petitioner’s deposition p.62 attached

hereto as Appendix I p. 46-48 and

incorporated herein by reference.

5. That Petitioner repeatedly

complained of low back pain and

neurological deficits and yet Dr. Nguyen

finding a history of paraplegia, and

diagnosing low back strain and

paraplegia, a neurological condition,

prescribes only Motrin two times a day

and issues an order for an egg-crate

mattresses were the appropriate

treatment. See Dr. Nguyen deposition p.

27 attached hereto as Appendix H p. 43-45

and incorporated herein by reference.

6. Dr. Nguyen asserted that

additional medical diagnostic tests were

not necessary or required to treat

Petitioner.

There is a point, as evidenced by

this case, where the incompetence and

professional inadequacy of a doctor rises

to the level of deliberate indifference,

and it is the responsibility of the trier

of fact, after introduction of all the

evidence to make that determination. For

the court to grant summary judgment under

these factual circumstances is

unthinkable. Based upon the foregoing

and the record that was before the

District Court and the Fourth Circuit,

there is little question that if the

trier of fact was allowed to do its job

that reasonable minds could differ as to

whether the Respondents’ treatment of the

Petitioner constituted deliberate

indifference.

Accordingly, the Fourth Circuit’s

opinion conflicts with the clear holding

of this Court under Rule 56 and Celotex.

This Court should take this

opportunity to clarify its holding in

Celotex relied upon by the Fourth Circuit

below. Celotex in no way purports to

take genuine issues out of the province

of the jury and allow courts to decide

clear issues of fact and substance, such

as deliberate indifference.

This Court should further grant

certiorari here to amplify the standard

of summary judgment and explicitly rule

that "even though a trial court may not

believe the party opposing the motion may

not succeed at trial, it should not

render a summary judgment if there is any

issue of material fact. The trial judge

must examine the evidence, not to decide

any issue of fact, but to discover if a

real issue exists."

The purpose of summary judgment is

not to take genuine issues from the jury

but rather to decide that as a matter of

law there is no issue to be decided by

the jury.

* Steelvest, Inc. v. Scansteel Service Center, Inc.,

Ky., 807 S.W. 2d 476 (1991),the Kentucky Supreme

Court held that a summary judgment motion must be

‘viewed in a light most favorable to the party opposing

the motion for summary judgment and all doubts are to

be resolved in his favor.’ Id. at 480. As a result thereof,

summary judgments are to be cautiously applied and

should not be used as a substitute for trial. Id. at 483.

A trial court must not grant a summary judgment

motion even if the trial court believes the opposing

party will not succeed at trial, if there is an issue of

material fact. Id. at 480. If the opposing party prts any

material fact into issue, no matter how questionabie, thc

summary judgment motion must be denied.

Finally, the Steelvest Court held that when the

trial judge examines the evidence, he or she must not

decide any issue of fact, but discover merely if a real

issue exists. Id. at 480. As the Court held, "[i]t clearly

is not the purpose of the summary judgement rule, as

we have often declared, to cut litigants off from their

right of trial if they have issues to try." Id. at 480.

tii aii

II. THE FOURTH CIRCUIT COURT RENDERED

THEIR OPINION IN CONFLICT WITH OTHER

CIRCUITS REGARDING THE CONCEPT OF

RES JUDICATA AND COLLATERAL

ESTOPPEL.

The District Court applied the

doctrine of res judicata to Petitioner’s

action against Respondents Williams,

Kessler and Murray. The Circuit Court

affirmed. However, the Fourth Circuit

below neither examined the principles and

policies underlying the doctrine nor

examined the circumstances of the instant

case to determine if an exception to the

doctrine might be warranted. In so doing

the Fourth Circuit creates a conflict

among the circuits with regards to

considering important issue of public and

private interest.

The claim preclusion doctrine bars a

second suit based on the same cause of

action or claim and the issue preclusion

doctrine bars "relitigation of issues

actually litigated and necessary to the

outcome of the first action." Parklane

Hosiery Co. v. Shore, 439 U.S. 322, 326

n.5 (1979) (emphasis added). See also

Carr v. District of Columbia, 646 F.2d

599 (U.S. App. D.C. 1980); American

Medical Int bj LI : ,

of Health, Education and Welfare, 677

F.2d 120 (U.S. App. D.C. 1988).

The doctrine of res judicata

encompasses four preclusive effects,

namely: (1) merger, (2) direct estoppel,

(3) bar, and (4) collateral estoppel, the

latter two being commonly referred to as

claim preclusion and issue preclusion,

respectively. Bates v. Devers, 202

S.E.2d 917, 920 (Va. 1974).

Res judicata-bar precludes

relitigation of the same cause of action

that was or could have been litigated

ii |

between the same parties or their

privies. JId., at 920-21. Thus, the

designation "claim preclusion".

Likewise, collateral estoppel

prevents the relitigation of any issue of

fact actually litigated in the original

litigation and essential to the valid

judgment. Thus, the designation "issue

preclusion". Id., at 921. Collateral

estoppel precludes relitigation of legal

issues as well as factual ones, but this

prohibition is enforced with considerable

more leniency than that of factual issue

preclusion. Id.

The doctrine of res judicata is

judicially crafted and founded upon

important considerations of public policy

favoring certainty in legal relations, a

defined end to litigation, and the

prevention of harassment of litigants.

Id. at 920. See also Commissioner of

Interna] Revenue v. Sunnen, 333 U.S. 591,

597 (1948), Pickeral_v. Federal Land Bank

of Baltimore, 177 Va. 743, 750 (1941).

The doctrine of res judicata is

firmly rooted in American law and the

overwhelming propensity of state and

federal courts is to apply the doctrine

without inquiry into equity of doing so.

Ward v. Charlton, 177 Va. 101, 115 (1941)

("The doctrine is firmly established in

our jurisprudence and should be

maintained where applicable".) Indeed, a

rule is a rule and departure therefrom

should be exceptional, not customary.

However, a number of courts, both

state and federal have acknowledged that

blind compliance is not always

appropriate, especially where important

issues of public and private interests

are involved. Bates vy. Devers, 214 Va.

667, 669 (1974) (res judicata may give

—

way when in conflict with other, more

important public policies), Griffin v.

Board of Education, 296 F. Supp. 1178,

1182 (E.D. Va. 1969) (where private

litigation has extensive implications of

public import, the rules of res judicata

or estoppel are not allowed to stultify

reassessment of prior decisions.)

In Spilker v. Hankin, 188 F.2d 35

(1951) the U.S. Circuit Court for D.C.

held that the Court should weigh

different rules and polices against

competing necessities and that situations

may arise which could call for exceptions

to the general rule regarding res

judicata. Id. at 38. "Res judicata, as

the embodiment of public policy, must, at

all times, be weighed against competing

interests, and on occasion, yield to

other policies." Id. at 38-39.

Likewise in Societe Anonyme des

es aninieemieeeeneniaaaeiieaieaieaaellal

Parfums le Galion v. Jean Patou, Inc.,

495 F.2d 1265 (1974) the 2nd Circuit held

that "res judicata principles, if applied

inflexibly, can at times result in

unwarranted hardship.B Id. at 1276. The

Court in that case found that the

doctrine of res judicata "is intended to

serve the aims of fairness and efficient

judicial administration, it need not be

applied mechanically where those ends

would not be served." Id. at 1276.

Additionally, in Moch v. Eash Baton

Rogue Sch. Distr., 543 F.2d 594 (1977)

the Fifth Circuit found that, "Courts

have occasionally rejected strict

application of bar and estoppel

principles when their use would violate

an overriding public policy or result in

manifest injustice." Id. at 596. See

also International Harvester v. OSHA, 628

F.2d 982 (1980) (Seventh Circuit finding

that where the technical requirements of

res judicata have been established, a

court may nonetheless refuse to apply the

doctrine; Res judicata must yield on

occasion to competing public policies.)

In the case at bar the Fourth

Circuit failed to consider any public

policy issues which would have created an

exception to the strict application of

res judicata and collateral estoppel.

Specifically, the first case dealt with a

pro se defendant who was not provided the

assistance of counsel. Once counsel was

provided to said Petitioner it was

immediately identified that other parties

were negligent that different causes of

action applied, and that separate

litigation should ensue. The court below

denied consolidation.

Additionally, granting Defendant’s

Motion for Summary Judgment was

inappropriate because Petitioner did not

have a full and fair opportunity to

1itzeete his claims. In Defendants’

Supplemental Motion for Summary Judgment,

Respondents argued that the issues raised

by the Petitioner were previously

litigated in Henderson v. Williams, et

al., C.A. No. 89-1723-AM (E.D. Va. June

13, 1991). The principle of collateral

estoppel bars relitigation of a

particular issue or determinative fact.

Allen v. McCurry, 449 U.S. 90 (1980).

Collateral estoppel does not bar the

Petitioner’s cause of action, however, in

that the Petitioner has not had a full

and fair opportunity to litigate his

Claim. When Mr. Henderson proceeded in

his pro se action, there can be no

question that the issue of whether the

Respondents in this action failed through

deliberate indifference to establish

proper policies and procedures was not

fully and fairly litigated and was not

actually decided. See Allen v. McCurry,

449 U.S. 90, 94 (1980) ("one general

limitation the Court has repeatedly

recognized is that the concept of

collateral estoppel cannot apply when the

party against whom the earlier decision

is asserted did not have a "full and fair

opportunity" to litigate that issue in an

earlier case"); see also, Parklane

Hosiery Co. v. Shore, 439 U.S. 322

(1979).

Restatement 2nd, Judgments, §27

states that for an issue to be subject to

collateral estoppel, it must have been

fully and fairly litigated in the first

action. It must also have been actually

decided, and this decision must have been

necessary to the outcome. For

relitigation of an issue to be

collaterally estopped, therefore, that

issue must be both identical to an issue

litigated in the earlier suit and a

necessary precursor to that decision.

Fleischer v. Detroit Cadillac Motor Co.,

165 N.Y.S. 245 (1st Dept. 1917); Berlitz

Schools of Languages of America v.

Everest House, 619 F.2d 211 (2d Cir.

1980).

The Court in Henderson v. Williams,

et al., C.A. No. 89-1723-AM (E.D. Va.

June 13, 1991), neither decided nor |

considered the issue of whether Appellees

Murray, Kessler and Williams failed

through deliberate indifference to

establish proper policies and procedures

governing proper medical attention to Mr.

Henderson, or whether Respondent Nguyen

failed through deliberate indifference to

properly treat Mr. Henderson. These

particular issues are not identical to

any other raised in the Petitioner’s

earlier suit, they were not necessary to

the outcome of the original suit and they

were not fully and fairly litigated.

Aside from the fact that it was

legally impossible for the Petitioner to

raise the issue in question against the

Respondents in the previous action, the

notion that if a party could have raised

a claim or cause of action in an earlier

action, then that party is subsequently

barred from raising the new claim ina

later action, is not a rule that is

either certain or established. The Court

in Allen v. McCurry, 449 U.S. 90 (1980),

did not establish a bright-line rule for

application of the collateral estoppel

and res judicata bars. For instance,

where a §1983 Plaintiff seeks to litigate

in federal court a federal issue which he

could have raised but did not raise in an

earlier state-court suit against the same

adverse party, collateral estoppel does

not apply. Lombard v. Board of Ed. of New

York City, 502 F.2d 631 (CA2 1974);

Graves v. Oligiata, 550 F.2d 1327 (CA2

1977); Mack v. Florida Bd. of Dentistry,

430 F.2d 862 (CA5 1970). Although this

action was not previously brought in

state court, these cases indicate that

courte are hesitant to assume that a

particular issue should have been raised

in an earlier proceeding -- the more

important and equitable question is

whether that issue was fully and fairly

litigated. Here, it is clear that it was

not.

CONCLUSION

For the reasons set forth above, a

writ of certiorari should issue to review

the judgment and opinion of the Court of

Appeals in this matter.

DATED: 30 September 1994

Respectfully submitted,

THE HEIDEMAN LAW GROUP, P.C.

2023 Q Street, N.W.

Washington, D.C. 20009-1009

Telephone: 202-462-8990

Telefax: 202-462-8995

By: RICHARD D. HEIDEMAN

Attorneys for Petitioner

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROGER HENDERSON,

Plaintiff-Appellant,

Vv.

RAY KESSLER; EDWARD W.

MURRAY; DAVID A. WILLIAMS

TIEN D. NGUYEN, M.D.,

Defendants~Appellees

and

VIRGINIA DEPARTMENT OF

CORRECTION; POWHATAN

CORRECTIONAL CENTER;

COMMONWEALTH OF VIRGINIA;

MEDICAL COLLEGE OF

VIRGINIA; SHERIFF’S

DEPARTMENT, COUNTY OF

HENRICO; SHERIFF’S

DEPARTMENT OF THE CITY

OF RICHMOND; DONALD L.

BOSWELL; ANDREW WINSTON;

STANLEY FURMAN, M.D.;

JOHN DOE; JANE DOE,

Defendants.

APPENDIX A

No.

93~6222

ROGER HENDERSON,

Plaintiff-Appellant,

Vv.

RAY KESSLER; EDWARD W.

MURRAY; DAVID A. WILLIAMS

TIEN D. NGUYEN, M.D.,

Defendants~Appellees

and

VIRGINIA DEPARTMENT OF No. 93-6222

CORRECTION; POWHATAN

CORRECTIONAL CENTER;

COMMONWEALTH OF VIRGINIA

MEDICAL COLLEGE OF

VIRGINIA; SHERIFF’S

DEPARTMENT, COUNTY OF

HENRICO; SHERIFF’S

DEPARTMENT OF THE CITY

OF RICHMOND;DONALD L.

BOSWELL; ANDREW WINSTON;

STANLEY FURMAN, M.D.;

JOHN DOE; JANE DOE,

Defendants.

em ec ee ee ee ee ee ee

Appeals from the United States

District Court for the Eastern District

of Virginia, at Richmond.

Robert R. Merhige, Jr., Senior District

Judge. (CA-91-346-R)

Argued: February 9, 1994

Decided: June 20, 1994

Before HAMILTON and WILLIAMS, Circuit

Judges, and OSTEEN, United States

District Judge for the Middle District of

North Carolina, sitting by designation.

Affirmed by unpublished per curiam

opinion.

COUNSEL

ARGUED: Richard D. Heideman. THE

HEIDEMAN LAW GROUP, P.C., Chevy Chase,

Maryland, for the Appellant. Pamela Anne

Sargent, Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL, Richmond,

Virginia for the Appellees Kessler,

Murray, and Williams; Sandra Morris

Holleran, MCQUIRE, WOODS, BATTLE &

BOOTHE, Richmond, Virginia for Appellee

Nguyen.

Unpublished opinions are not binding

precedent in this circuit. See I.0O.P.

36.5 and 36.6

ee |

OPINION

PER CURIAM:

In August 1988, Appellant Roger

Henderson was transported in a prison van

by officers of the City of Dismnond

Sheriff’s Department to Henrico County

Jail in Virginia. While en route, the

driver of the van slammed on the brakes

to avoid an accident. Henderson, who was

handcuffed and shackled, was thrown

against the interior of the van and

another prisoner was thrown on top of

him, thereby pinning Henderson against

the inside of the vehicle.

While in the Henrico County Jail,

Henderson experienced increasing pain in

his lower extremities, followed by a loss

of sensation. On March 7, 1989, he was

transferred to Powhatan Reception and

Classification Center (PRCC) for six

weeks of evaluation and classification,

and then to Powhatan Correctional Center

(PCC) until his May 24, 1990, parole

release. Henderson claims his physical

and neurological conditions continued to

decline at PRCC and PCC. Henderson

attributes his deteriorating conditions

to the denial of access to medical care

and appropriate treatment for the

injuries sustained in the van incident’

and the lack of proper facilities for the |

handicapped.

The record shows, however, that

Henderson was seen repeatedly by prison

doctors and specialists a the Medical

College of Virginia (MCV) . After filing

numerous inmate grievances concerning the

' None of the medical evaluations indicated an

organic cause for his paralysis. Instead, he was

diagnosed as having hysterical conversional paraplegia

but was treated functionally as a paraplegic. (Report of

Nathan D. Zusler, M.D., Director, Brain Injury

Rehabilitation Services, Med. Col. of Va. dated

10/26/89).

Sain Aes eats te ial a

LS eat CS

RAGES

purported inadequacies of the medical

care, Henderson brought this action under

42 U.S.C. § 1983 (1988), against Director

of the Virginia Department of Corrections

Edward W. Murray, Deputy Director of the

Virginia Department of Corrections Ray

Kessler, PCC Warden David A. Williams,

and PCC physician Dr. Tien D. Nguyen.

Henderson claims that his permanent

injuries were proximately caused, in

direct violation of the Eighth Amendment,

by the deliberate indifference of Murray,

Kessler, and Williams in failing to

establish proper policies and procedures

governing appropriate medical care and of

Dr. Nguyen in failing to render proper

treatment.?*

2 Henderson’s Amended Complaint and Second

Amended Complaint included allegations of due process

violations, gross negligence, negligence, failure to

diagnose, failure to treat, medical malpractice, negligent

infliction of emotional distress, and loss of power to

The district court granted summary

judgment to Dr. Nguyen on the basis that

his affidavit and deposition showed

adequate efforts to meet Henderson’s

medical needs, and that Henderson failed

to provide evidentiary support for his

allegations of deliberate indifference.

The court also granted summary judgment

to the non-medical defendants, finding

that a previous case brought by Henderson

rendered his present action subject to

the bars of res judicata and collateral

estoppel. In addition, the court denied

Henderson’s Fed. R. Civ. P. 59(e) Motion

for Reconsideration.

earn money. Other Defendants originally named in this

action were eventually eliminated through a combination

of voluntary dismissals and dispositive motions. The

instant appeals focus solely on Henderson’s Eighth

Amendment claims.

We turn first to a de novo review of

the district court’s order granting

Appellees’ summary judgment motions.

Miller v. Federal Deposit ins. Corp., 906

F.2d 972, 974 (4th Cir. 1990).

To establish his § 1983 claim

against Dr. Nguyen, Henderson must show

that Dr. Nguyen was deliberately

indifferent to his serious medical needs.

Wilson v. Seiter, 501 U.S. 294, _,111 S.

Ct. 2321, 2323 (1991). For deliberate

indifference to rise to the level of an

actionable violation of the Eighth

Amendment prohibition against cruel and

unusual punishment, "the treatment must

be 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). Hence, mere

negligence or malpractice in diagnosis or

treatment is not enough. Estelle v.

Gamble, 429 U.S. 97, 106, (1976). "To be

cruel and unusual punishment at all must

involve more than ordinary lack of due

care for the prisoner’s interests or

safety." Wilson, 501 U.S. at __, 1115S.

Ct. at 2324 (quoting Whitley v. Albers,

475 U.S. 312, 319 1986).

The record in this case shows that

Dr. Nguyen, one of several attending

physicians, saw Henderson frequently and

referred him to specialists when

necessary. The record is replete with

voluminous documentation of almost

constant medical care and supervision

provided to Henderson, including frequent

referrals to MCV on both in-patient and

out-patient bases. Henderson’s failure

to provide any supported allegation of

deliberate indifference or other

admissible evidence showing the existence

of a genuine issue for trial cannot rebut

Dr. Nguyen’s summary judgment motion and

supporting affidavit and deposition.

Celotex Corp v. Catrett, 477 U.D. 317,

324 (1986); see also Ross v.

Communications Satellite Corp., 759 F.2d

355, 364 (4th Cir. 1985) ("([W]holly

speculative assertions will not

suffice."). Doctor Nguyen’s actions

simply do not approach the level of

deliberate indifference proscribed by the

Eighth Amendment. If mistakes were

indeed made, they were mistakes of

medical judgment impervious to judicial

review ina § 1983 action. Russell v.

Sheffer, 528 F.2d 318, 319 (4th Cir.

1975) .3

> Given our affirmance of the district court’s

conclusion that Henderson’s claims against Dr. Nguyen

It.

Henderson previously asserted his

Claims of deliberate indifference and

inadequate facilities for the handicapped

at PCC in a § 1983 action against PCC

Warden Williams and PCC medical personnel |

other than Dr. Nguyen. Henderson v. |

Williams, No. 89-1723-AM (E.D. Va. June

13, 1991) (Henderson I). The Henderson I

court granted Defendants’ motion for

summary judgment, finding that facilities

at PCC were adequate to serve the

specialized needs of the handicapped, and

that ™sfendant physicians were not

deliberately indifferent to Henderson’s

medical needs.* The issue of inadequate

did not state a genuine issue for trial, we find it

unnecessary to consider Dr. Nguyen’s cross-appeal of

the denial of his Motion to Dismiss the claims against

him as barred by the statute of limitations.

* One claim reserved for ruling in Henderson I,

concerning a loose handrail in a toilet, was dismissed

policies and procedures governing

appropriate medical care was neither

presented nor considered in Henderson I.

Notwithstanding the absence of a direct

adjudication of that issue, the district

court disposed of the instant claims

against the non-medical defendants by

finding the Henderson [I court

did determine that the

Defendant’s [sic] fulfilled

their duty to protect the Plaintiff;

that this implicitly includes

their duty to establish

policies may arguable be

speculative, however, it

is not necessary that the issue

in question was actually raised

in the previous action as long

as it could have been raised.

(J.A. at 526, citing Allen v. McClurry,

449 U.S. 90, 94 (1980).

Under res judicata, or claim

preclusion, a final decision on the

merits of an action precludes the parties

after a factual hearing.

or their privies from relitigating issues

that actually were raised or could have

been raised in that action. Migra v.

Warren City School Dist. Bd of Educ. ,465

U.S. 75, 77 n.1 (1984). Collateral

estoppel, or issue preclusion, bars the

relitigation, in different causes of

action, of factual or legal issues

previously determined by a court as a

necessary precursor to the entry of

judgment. Id.

Henderson argues that, although

Williams was a defendant in Henderson I,

the cause of action and relevant issues

in this case are different. However,

Henderson cannot seriously challenge the

full and fair opportunity, represented by

Henderson I, to litigate his claims

against Williams. The issues presented

in this § 1983 action could have been

raised previously, and the district court

properly disposed of Henderson’s claims

against Williams on the basis that those

claims were therefore precluded.°

Henderson’s verbatim claims against

Kessler and Murray are also barred by

claim preclusion because their interests

are "aligned" with Williams in both the

previous and current actions, Comite De

Ape I Trabajad agrico]

United States Dep’t of Labor, 995 F.2d

510, 514 (4th Cir. 1993), by the

statutorily-created supervisory and

managerial relationship between the

5 We note that Henderson filed another § 1983

action against other defendants during his brief

incarceration at PRCC, alleging inadequate medical care

and handicap facilities at that institution. Henderson v.

Mahon, No. 89-1724-AM (E.D. Va Mar. 4, 1991). No

allegations of inadequate policies and procedures were

asserted in that complaint. Henderson failed to object

to the magistrate judge’s recommended finding that the

PRCC Defendants had rot shown deliberate

indifference to Henderson’s medical needs. Henderson

v. Mahon, No. 89-1724-AM(E.D. Va. Oct. 15, 1992).

governing officials of the Virginia

Department of Corrections and the wardens

of correctional facilities within their

jurisdiction. Va. Code Ann. Section

53.1-10(1) (Michie 1991); see United

States v. Manning Coal Corp., 977 F.2d

117, 121 (4th Cir. 1992) (privity "is

merely a word used to say that the

relationship between the one who is a

party on the record and another is close

enough to include the other within the

res judicata.") (quoting Bruszewski v.

United States, 181 F.2d 419, 423 (3rd

Cir. 1950) (Goodrich, J., concurring).

We also note that Henderson’s claims

against Kessler and Murray lack

substantive merit, for there has been no

attempt to demonstrate, nor can we

discern from the record, that the need

for improved medical policies and

procedures was "so obvious" or that the

inadequacy of the existing policies and

procedures was "so likely to result in

the violation of constitutional rights"

as to constitute actionable deliberate

indifference. Mitchell v. Aluisi, 872

F.2d 577, 581 (4th Cir. 1989) (quoting

City of Canton v. Harris, 109 S. Ct.

1197, 1205 (1989) .Moreover, Kessler and

Murray cannot be held accountable under a

theory of supervisory liability for a

subordinate’s constitutional violation,

absent a constitutional violation by that

subordinate. Temkin v. Frederick County

Comm’rs, 945 F.2d 716, 724 (4th Cir.

1991), cert. denied, 112 S. Ct. 1172

(1992).

Finally, given the properly-entered

order of summary judgment for Defendant’s

Dr. Nguyen, Williams, Kessler and Murray,

we find the district court did not abuse

its discretion in refusing to revisit

that order, Poynter v. Ratcliff, 874 F.2d

219, 223 (4th Cir. 1989), and affirm the

district court’s denial of Henderson’s

Motion for Reconsideration.

Iit.

This action is an attempt by

Henderson to revive a claim that has been

already, or could have been, adjudicated.

While his accident is unfortunate,

Henderson failed to demonstrate

deliberate indifference by the parties

treating and evaluating him and by the

parties in charge of the facilities in

which he was housed. Therefore, there is

no actionable § 1983 claim and we affirm

the district court’s entry of summary

judgment in favor of Dr. Nguyen,

Williams, Kessler, and Murray.”

AFFIRMED

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

ROGER HENDERSON, )

Plaintiff, )

)

Vv. ) Case No:3:92-CV-346

)

RAY KESSLER, et al.,)

Defendants)

ORDER

For the reasons stated in the

accompanying memorandum, and deeming it

just and proper so to do, it is hereby

Adjudged and Ordered that the Defendants

Murray, Williams and Kessler’s motion for

summary judgment in this matter e and the

same is hereby GRANTED. Likewise,

Defendant Dr. Nguyen’s motion for summary

judgment is also GRANTED.

Let the clerk send copies of this

Order and the accompanying Memorandum to

all counsel of record.

12-8-32

Date UNITED STATES DISTRICT JUDGE

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

ROGER HENDERSON,

Plaintiff,

Vs Case No: 3:92-CV-346

)

RAY KESSLER, et al.,)

Defendants)

MEMORANDUM

This matter is before the Court on

two separate defense motions for summary

judgment. The parties have briefed the

issues and waived oral arguments,

therefore, the matter is ripe for

decision.

The record reflects the following:

At all relevant times, the Plaintiff was

a prisoner of the Virginia Department of

Corrections. On August 17, 1988,

officers of the Richmond City Sheriff’s

Department were transporting Plaintiff to

the Henrico County Jail. Apparently, the

driver was forced to slam on the brakes

during the trip, and the Plaintiff hit

the inside wall of the prison van with

great force. The Plaintiff was taken to

St. Mary’s Hospital in Richmond, Virginia

where he was treated and released.

The Plaintiff was eventually taken

to the Henrico County Jail where he was

incarcerated for approximately six months

before he was transferred to the Powhatan

Correctional Center ("PCC"). The

Plaintiff alleges, as the foundation for

his complaint, that while incarcerated in

Henrico, and subsequently in Powhatan,

Virginia, he was systematically deprived

of adequate medical treatment in

violation of his Eighth Amendment rights

and deprived of the due process in

violation of his Fourteenth Amendment

rights. On the basis of the foregoing,

the Plaintiff brings this action under 42

U.S.C. § 1983.

By an Order dated November 10, 1992,

this Court Denied Defendants Murray,

Williams, and Kessler’s motion to dismiss

except as it related to liability through

respondeat superior. As to respondeat

superior liability, the Defendants’

motion to dismiss was Granted. This same

Order Denied Defendant Dr. Nguyen’s

motion to dismiss with respect to

potential liability under 42 U.S.C.

§1983, but Granted Defendant Dr. Nguyen’s

motion to dismiss the allegations of

malpractice. Therefore, there are only

two remaining theories of liability: 1.)

whether Defendants Kessler, Williams, and

Murray are directly responsible, under 42

U.S.C. § 1983, for the alleged violations

due to deliberate indifference on the

part of each in failing to establish

————————————

policies, procedures, or custom designed

to protect the Plaintiff’s rights; and

2.) whether Defendant Dr. Nguyen is

responsible, under 42 U.S.C. § 1983, for

his alleged deliberate indifference to

the inmate’s serious medical need.

Rule 56 of the Federal Rules of

Civil Procedure governs motions for

summary judgment, and pursuant thereto,

summary judgment is appropriate only

where parties do not dispute material

facts that might affect the outcome of an

action. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). To

defeat summary judgment, a nonmoving

party, who will bear the burden of proof

at trial on a dispositive issue, must go

beyond his or her pleadings with

affidavits, depositions, interrogatories

or other admissible evidence to show

specific facts that amount to a genuine

issue for trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1985). Where

the parties show no dispute of material

fact, summary judgment is appropriate.

Defendants Murray, Williams, and

Kessler’s motions for summary judgment

requests this Court to find that the

issues now before it previously have been

litigated by the Plaintiff in Henderson

v. Williams, et al., C.A. No. 89-1723-AM

(E.D. Va. June 13, 1991). In that case,

Judge Cacheris specifically examined

whether there were adequate facilities

for handicapped prisoners and whether the

Defendant’s were deliberately indifferent

to their duty to protect the Plaintiff.

The Court in that case granted the

Defendants’ motion for summary judgment,

except for one specific allegation of a

loose handrail in a toilet facility,

which the Judge determined required a

factual hearing. This remaining claim

was later dismissed by an Order dated

July 29, 1991.

Defendants Murray, Williams, and

Kessler contend that this Court’s

decision in the Alexandria division bars

prosecution of the instant case by reason

of res judicata and collateral estoppel.

The principles of res judicata and

collateral estoppel apply to § 1983

actions. Migra v. Warren City School

District Bd. of Educ., 465 U.S. 75

(1984); Allen v. McCurry, 449 U.S. 90

(1980). Under res judicata, a final

decision on the merits of an action

precludes the parties or their privies

from relitigating issues that were raised

or could have been raised in that action.

Allen, at 94. Under collateral

estoppel, once the court has decided an

issue in a suit on a different cause of

action involving a party to the first

case. ld.

The Defendants claim that the

Plaintiff had a full and fair opportunity

to litigate these claims in the prior

suit, and that even though Defendants

Murray and Kessler were not parties to

the first suit, a litigant who was not a

party in a federal case may use

collateral estoppel offensively in a new

suit against the party who did not

prevail in the first case. Parkline

Hosiery Co., Inc. v. Shore, 439 U.S. 322,

327 (1979); Blonder-Tongque Laboratories,

Inc. v. University of Illinois

Foundation, 402 U.S. 313, 328 (1971).

The Plaintiffs argue that Judge

Cacheris did not decide the issue of

whether the Defendants’ were deliberately

indifferent to their duty to establish

adequate policies, procedures, or custom

designed to protect the Plaintiff’s

rights. Judge Cacheris did determine

that the Defendant’s fulfilled their duty

to protect the Plaintiff; that this

implicitly includes their duty to

establish policies may arguably be

speculative, however, it is not necessary

that the issue in question was actually

raised in the previous action as long as

it could have been raised. Allen, 449

U.S. at 94.

In light of the decision in

Henderson v. Williams, C.A. No. 89-1723-

AM, the combined principles of res

judicata and collateral estoppe] bar the

Plaintiff’s present claim against

Defendants Murray, Williams, and Kessler.

Defendant Dr. Nguyen makes a

separate motion for summary judgment.

This Defendant’s motion is based on two

theories. First, the Defendant attempts

to avail himself of the decision in

Henderson v. Williams, C.A. No. 89-1723-

AM, through collateral estoppel. This

effort must fail since the instant

Plaintiff alleges specific acts or

omissions unique to this Defendant that

could not have been raised in the

previous action.

Simply stated, the Plaintiff alleges

that Dr. Nguyen was deliberately

indifferent to the Plaintiff’s serious

medical needs. Since the Plaintiffs will

bear the burden of proof on this issue a

trial, the Plaintiff must go beyond the

pleadings with affidavits, deposition,

interrogatories, or other admissible

evidence to show a genuine issue for

trial. Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1985). The Defendant’s

motion, supporting affidavit, and

deposition of Dr. Nguyen supplies

_——————————————

abundant examples of examinations of the

Plaintiff by the Defendant doctor and his

effort to see to Plaintiff’s medical

needs including referral to a specialist

at MCV, and subsequent treatment

according to the recommendations of that

specialist. The Plaintiff has failed to

provide one supported allegation of

deliberate indifference. The Plaintiff

claims that his expert is unavailable for

deposition because he has been out of the

country since November 21, 1992. This

reason for failing to support his

allegations is not only irrelevant, but

it is unpersuasive since this action has

been pending since ! y 6, 1991, and the

Defendant’s motion for summary judgment

was filed on November 12, 1992. There is

no excuse for the Plaintiff waiting until

this late date and then complain about

the unavailability of an expert.

The Plaintiff also complains that

the Defendant’s action, filed on November

12, 1992, is untimely given this Court’s

pre-trial Order specifying that all

motions for summary judgment must be

filed thirty-five (35) days prior to

trial. In this case, that deadline would

be November 11, however, November 11, was

Veteran’s Day and the courthouse was

officially closed. Rule 6 of the Federal

Rules provides that when an order of a

court, a statute or rule prescribes a

date for filing a pleading which falls on

a legal holiday, the pleading may be

filed on the next day. Since the

Defendant’s motion for summary judgment

was timely, and because the Plaintiff has

failed to provide one supported

allegation of deliberate indifference,

Defendant Dr. Nguyen’s motion will be

Granted.

Date

An appropriate Order will issue.

UNITED STATES DISTRICT COURT

AMENDMENT VIII TO UNITED STATES

CONSTITUTION

Excessive bail shall not be

required, nor excessive fines imposed,

nor cruel and unusual punishments

inflicted.

APPENDIX C

42 U.8.C. §1983

Civil Action for Deprivation of Rights

Every person who, under color of any

statute, ordinance, regulation, custon,

or usage, of any State or Territory or

the District of Columbia, subjects, or

causes to be subjected, any citizen of

the United States or other person within

the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution

and laws, shall be liable to the party

injured in an action at law, suit in

equity, or other proper proceeding for

redress. For the purposes of the

section, any Act of Congress applicable

exclusively to the District of Columbia

shall be considered to be a statute of

the District of Columbia.

APPENDIX D

AMENDMENT XIV TO UNITED STATES

CONSTITUTION

All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

Untied States and of the state wherein

they reside. No state shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any state

deprive any person of life, liberty, or

property, without due process of law;

nor deny to any person within its

jurisdiction the equal protection of the

laws.

APPENDIX E

Coplin - Redirect

to page 2 of exhibit one and the

handwritten notes contained thereon which

bear the signature of, you’ve advised us,

of Bruce Stelmack, your resident, and

having reviewed those notes would you

please tell the ladies and gentlemen of -

the jury the opinions you have today

about the status of Roger Henderson as of

the time that you examined him and the

conclusions, impressions and opinions you

formed to a reasonable degree of medical

certainty?

MS.SINCLAIR: Objection, asked and

answered and cumulative. You can answer

it.

Q: You may answer, Doctor.

A: I have not seen him since that

time, but I’m assuming today he’s till

paralyzed and in a wheelchair according

EXHIBIT F

to our physical examination.

Q: Perhaps I didn’t ask my

question clearly. In light of the

objection let me try and rephrase it.

Doctor, based upon your review

of the medical records and your

recollection of your examination of Roger

Henderson on the 5th of June 1990, would

you please state to the ladies and

gentlemen of the jury your opinions to a

reasonable degree of medical certainty as

to his medical condition?

MS. SINCLAIR: I restate the

same objection.

Q. You may answer, pesbee.

A. His medical condition was

paraplegia with a neuro --- with a

paralyzed bladder, and a patient who was

wheelchair bound, unable to ambulate and

the paralysis appeared to be permanent at

that particular time.

Q. Would you please explain that

in lay person’s English for the ladies

and gentlemen of the jury, please?

A. Basically this patient was

going to be in a wheelchair for the rest

of his life and not be able to walk

again.

e. And the other medical terms you

used in your last answer, would you

please explain those, Doctor?

A. And that he would have to have

some sort of tube to drain his bladder

because his bladder would be also

paralyzed for the rest of his life.

Q. Finally, Doctor, would you

please explain within a reasonable degree

of medical certainty the definitions that

you use for the terms paralyzed and

paraplegia?

A. The terms paralyzed and

paraplegia means that the patient has no

_—

function of the lower extremities, —

means the patient is unable to ambulate

because they cannot move their legs.

Q. By ambulate, what do you mean,

Doctor?

A. Walk, the patients cannot walk

because they cannot use their legs.

Q. Is that the condition in which

you found Roger Henderson on the 5th day

of June 1990 when you examined him?

A. That is correct.

Q. Thank you very much, Doctor.

MS. SINCLAIR: Nothing further.

(Deposition concluded at 4:30 p.m.)

* * *

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

ROGER HENDERSON,

Plaintiff

Vv. CASE NO:3:91CV00346

RAY KESSLER, et al.

Defendants

AFFIDAVIT

REX C. SMITH, first being duly sworn,

states as follows:

i. I am the President of the

American Justice Institute, P.O. Box 482,

Burtonsville, MD 20866. (301) 871-1781.

2. I have over thirty-two (32)

years of experience working in the

Criminal Justice System, including all

levels of state and federal correctional

institutions, particularly in the

development and management of policies

APPENDIX G

and procedures related to the functional

operations of such correctional

facilities.

3. At the request of the Plaintiff

—e I have reviewed those policies

and procedures in effect for the Virginia

Department of Public Safety and the

Division of Correctional Services, as

promulgated by the Commonwealth of

Virginia.

4. Based on the aforementioned

review, it is my considered

opinion, that:

a. The Defendants in this

case had the affirmative duty to develop

and promulgate appropriate policies and

procedures designed to protect inmates

and provide specialized care as

prescribed or as necessary given

their particular circumstances.

b. The Defendants failed in

meeting their responsibilities to

establish and promulgate appropriate

policies and procedures intended to

protect the Plaintiff and similarly

situated inmates, specifically because

those policies and procedures in effect

are generally outdated and not consistent

with current standards. In addition, in

those cases where a policy has been

promulgated there is no effective

implementation or a method of assuring

implementation and effective delivery to

the inmate.

C. That Defendants failure

was a result of their individual and

collective deliberate indifference

toward the establishment, promulgation

and implementation of the appropriate and

necessary policies and procedures, and

d. The defendants failure was

a proximate cause of the injuries and the

exacerbation thereof suffered by the

Plaintiff while in confinement by the

Commonwealth of Virginia.

REX C. SMITH

State of Maryland )

County of Montgomery) ss

Subscribed and sworn to before me

this 29th day of September, 1992

NOTARY PUBLIC

My commission expires:

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

ROGER HENDERSON

Plaintiff

Vv. : Civil Action

> No. 3:91CV00346

RAY KESSLER, et al., :

Defendants :

Deposition of the Defendant,

TIEN DUC NGUYEN, M.D., called as an

adverse party by and on behalf of the

Defendants, pursuant to the Federal Rules

of Civil Procedure, taken before c.wW.

Girard, C.M. Registered Professional

Reporter and Notary Public within and for

the State of Virginia, at Large, at the

offices of McGuire, Woods, Battle &

Boothe, Conference Room 6A, 1 James

Plaza, Richmond, Virginia on Wednesday,

the 18th day of November 1992, commencing

at 10:35 a.m.

APPENDIX H

BY MS. HALLIGAN:

Q. Thanks.

A. So, on May 4, 1989, Mr.

Henderson come to see me. He’s

complaining of low back pain. Is

aggravated by a firm mattress and he’s

asking me to have an egg crate mattress.

So, saw him, and has some

tenderness in low back, some stiffness.

Have history of paraplegia. So my

impression is low back strain and

paraplegia, and he’s still on self-

medication progran.

Excuse me. I recommend self-

medication program for him and Motrin two

times a day and issue an egg crate

mattress.

MR. HERRING: Let me make sure

I understand. Maybe I missed -- is it

self-medication, S E L F?

BY MS. HALLIGAN:

So your notes don’t indicate,

then, you referred him to--

A. No. I don’t refer on chat day.

Q. Is paraplegia a neurological

condition?

A. Yes. I think so.

GIRARD REPORTING, INC.

C.W. GIRARD, C.M., RPR

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

Roger Henderson

Plaintiff

Civil Action

No. 3:91CV00346

Vv.

Ray Kessler,et al.

Defendant

Deposition of the Plaintiff,

ROGER RAMONE HENDERSON, called as an

adverse party by and on behalf of the

Defendants, pursuant to the Federal Rules

of Civil Procedure, taken before C.W.

Girard, C.M., Registered Professional

Reporter and Notary Public within and for

the State of Virginia, at Large, at the

offices of McGuire, Woods, Battle &

Boothe, Conference Room 6A, 1 James

Plaza, Richmond, Virginia on Wednesday,

the 18th day of November 1992, commencing

at 2:53 p.m.

APPENDIX I

Q. Yes, sir.

A. They used to carry me down for

what they call therapy.

Q. Physical therapy they called

it?

A. Physical therapy and what it

consisted of, which I thought was ironic.

They used a TENS unit, placed one pad on

one shoulder and the back; one pad on one

shoulder on the right and one pad on the

shoulder and on the left and they placed

~~ I mean, one what they call an

electrode that goes to a TENS unit on

each side of my shoulder and on each side

at my lower back.

That was the extent of the

therapy I received the entire

time I was at Powhatan Correctional

Center.

Q. That was physical therapy that

was prescribed by MCV?

A. That’s what they called it. I

don’t know who it was prescribed by.

That’s why I went to get what was

supposed to get physical therapy. I know

that MCV can’t do anything more than the

Department of Correction will approve.

Q. Were you seen by an

institutional urologist

GIRARD REPORTING, INC.

C.W. Girard, C.M., R.P.R.

FEDERAL RULES OF CIVIL PROCEDURE

RULE 56(c)

Rule 56. Summary Judgment

(Cc) Motion and Proceedings Thereon. The

motion shall be served at least 10 days

before the time fixed for the hearing.

The adverse party prior to the day of

hearing may serve opposing affidavits.

The judgment sought shall be rendered

forthwith if the pleadings, depositions,

answers to interrogatories, and

admissions on file, together with the

affidavits, if any, show that there is no

genuine issue as to any material fact and

that the moving party is entitled to a

judgment as a matter of law. A summary

judgment, interlocutory in character, may

be rendered on the issue of liability

alone although there is a genuine issue

as to the amount of damages.

APPENDIX J

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.