DURAND v. CHARLES

Filing 34

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 06/20/2017, that the Summary Judgment Motion (Docket Entry 29 ) be denied. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RAYBORN J. DURAND,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ANTHONY G. CHARLES, M.D.,
Defendant.

1:16cv86

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge for a recommendation on Plaintiff’s “Motion for
Summary

Judgement”

Motion”).

(Docket

Entry

29)

(the

“Summary

Judgment

For the reasons that follow, the Court should deny the

Summary Judgment Motion.
BACKGROUND
Pursuant

to

42

U.S.C.

§

1983,

Rayborn

J.

Durand

(the

“Plaintiff”) commenced this action against Anthony G. Charles, M.D.
(the “Defendant”) for acts and/or omissions amounting to deliberate
indifference

to

Plaintiff’s

serious

medical

needs

during

Plaintiff’s pretrial detention by the North Carolina Department of
Public Safety (the “DPS”). (Docket Entry 2 (the “Complaint”) at 36.)1

Defendant initially moved to dismiss the Complaint pursuant

to “Rule 12(b)(6) of the Federal Rules of Civil Procedure” (the

1 Citations herein to Docket Entry pages utilize the CM/ECF
footer’s pagination.

“Rules”).
light

most

(Docket Entry 12 at 1.)
favorable

to

As, however, “construed in the

Plaintiff

and

taking

all

reasonable

inferences in his favor, the Complaint alleges that Defendant
knowingly failed to treat his obvious, serious medical need, which
required prompt surgical intervention” (Docket Entry 22 at 17), the
undersigned concluded that the Complaint “establish[ed] a claim for
deliberate

indifference

dismissal” (id. at 15).

sufficient

to

withstand

Rule 12(b)(6)

The undersigned therefore recommended

denial of Defendant’s dismissal motion.

(See id. at 22.)

The

Court (per United States District Judge Loretta C. Biggs) adopted
that recommendation.

(See Docket Entry 25 at 1.)

parties commenced discovery.
(authorizing discovery).)

Thereafter, the

(See Text Order dated Jan. 30, 2017

Less than halfway through the discovery

period (see id. (establishing discovery deadline of July 31,
2017)), Plaintiff moved for summary judgment (see Docket Entry 29),
which Defendant opposes (see Docket Entry 30).2

2 Weeks after his deadline, Plaintiff sought “an extension of
time
to
answer
Defendant[’]s
Response
in
Opposition
of
Plaintiff[’]s Motion for Summary Judgement” until after he obtained
further discovery, including the deposition of “Plaintiff[’]s
wi[tn]ess Mr. Kurian PA-C.” (Docket Entry 33 at 1.) The Court
(per the undersigned) denied that request because, among other
reasons, “Plaintiff ha[d] not explained why he need[ed] additional
material to support [the Summary Judgment] Motion, when he knew he
did not have such material at the time he filed [the Summary
Judgment] Motion.” (Text Order dated June 7, 2017.)
2

DISCUSSION
I.

Summary Judgment Standards

“The [C]ourt shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

A genuine dispute of material fact exists “if the

evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”
242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S.

The movant bears the burden of establishing the

absence of such dispute.
323 (1986).

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

In analyzing a summary judgment motion, the Court

“tak[es] the evidence and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party.”

Henry v.

Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

In other

words, the nonmoving “party is entitled ‘to have the credibility of
his evidence as forecast assumed, his version of all that is in
dispute accepted, [and] all internal conflicts in it resolved
favorably to him.’”

Miller v. Leathers, 913 F.2d 1085, 1087 (4th

Cir. 1990) (en banc) (brackets in original) (quoting Charbonnages
de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).

If,

applying this standard, the Court “find[s] that a reasonable jury
could return a verdict for [the nonmoving party], then a genuine
factual dispute exists and summary judgment is improper.” Evans v.

3

Technologies Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.
1996).
II.

Plaintiff’s Allegations

In his unverified Complaint, Plaintiff alleges that:
He “was diagnosed with a right inguinal hernia” during his
pretrial detention at the DPS’s Craven Correctional Institution
(the “Craven C.I.”).

(Docket Entry 2 at 4.)3

Defendant performed

“a right inguinal hernia repair with mesh” on Plaintiff “at the
U.N.C.

Medical

Center

February 1, 2013.

at

(Id.)

Chapel

Hill”

(the

“U.N.C.M.C.”)

on

“In the next days[, Plaintiff’s] right

scrotum became swollen and painful,” causing his return to the
U.N.C.M.C. on February 7, 2013, at which point Defendant “excised
a retained distal sac sized 6.8 cm x 3.7 x 2.5 cm.”

(Id.)

Following this surgery, Plaintiff “was taken to Central Prison”
(the “C.P.”) and “admitted to the C.P. Hospital acute care ward.”
(Id.)

Plaintiff

surrounding

his

“developed
right

a

painful

testicle”

and,

swollen
at

an

hardened
appointment

mass
at

U.N.C.M.C. on February 19, 2013, “was instructed to take ibuprofen
for pain and to elevate and ice his scrotum for swelling and was
discharged from [Defendant’s] care.”

(Id.)

3 As relevant to this matter, an “inguinal hernia” involves
the protrusion of the intestine into the canal “through which the
testis descends into the scrotum and in which lies the spermatic
cord.”
(Docket Entry 22 at 2 n.1 (internal quotation marks
omitted).)
4

On February 21, 2013, an ultrasound technician conducted an
ultrasound of Plaintiff’s scrotum at the C.P. Hospital. (Id.) The
ultrasound technician informed Physician Assistant Kurian (“P.A.
Kurian”), Plaintiff’s C.P. Hospital “care provider,” that the
ultrasound “revealed decreased to no blood flow to [Plaintiff’s]
right

testicle.”

(Id.)

“P.A.

Kurian

emergently

contacted

[Defendant] who when told of the [ultrasound] finding stated that
he

was

already

aware

that

the

blood

supply

to

[Plaintiff’s]

testicle was diminished and there was a good chance [Plaintiff]
would lose his testicle. [Defendant] counseled P.A. Kurian against
tak[i]ng any further action.” (Id. at 5.) Thereafter, P.A. Kurian
informed Plaintiff “of the [ultrasound] result and of the impending
possible loss of his testicle,” and “told [him] that no further
action would be taken at [Defendant’s] recommendation.”

(Id.)

“That evening, . . . Dr. Tharrington, a radiologist who had
just read [Plaintiff’s ultrasound] results,” called “Dr. Bowen of
the C.P. Hospital emergency dep[artment].”

(Id.)

Dr. Tharrington

told Dr. Bowen “that immediate emergency surgical consultation and
followup was urged concerning the lack of testicular blood flow.”
(Id.)

On the morning of February 22, 2013, Plaintiff underwent

exploratory surgery by Dr. Gorden Fifer at the U.N.C.M.C., which
“revealed a necrotic right testicle which was removed.”

(Id.)

On

March 25, 2013, Plaintiff “was released from Dr. Fifer’s care and

5

was also released from the C.P. Hospital and returned to Craven
C.I.”

(Id.)

“[T]he lack of or decreased blood flow to [Plaintiff’s]
testicle,

which

was

foreknown

by

[Defendant]

before

the

[ultrasound,] was a serious medical need requir[i]ng treatment.”
(Id. at 6.)

Defendant “was deliberately indifferent to this

serious medical need by failing to initiate action when he first
knew of the lack of or decreased blood flow and possible impending
loss of [Plaintiff’s] testicle and by counseling against tak[i]ng
any preventative action to prevent its loss.”
deliberate

indifference

resulted

in

a

(Id.)

significant

“This

injury

to

[Plaintiff], the loss of his testicle, the importance of which is
compounded by the fact that [Plaintiff] is incarcerated.”

(Id.)

This conduct violated Plaintiff’s “right to due process as . . . a
pretrial

detainee,”

for

which

violation,

Plaintiff

“seek[s]

compensatory and punitive damages, costs of this action[,] and any
other relief the [C]ourt deems just and proper.”

(Id.)

To support his allegations, Plaintiff proffers medical records
from his DPS file.
11.)

(See Docket Entry 26 at 1-2; see also id. at 9-

Specifically, Plaintiff presents two pages of DPS Provider

Progress Notes (id. at 9-10) as well as Dr. Tharrington’s report
regarding the ultrasound (id. at 11).

Written by P.A. Kurian, the

first page of Provider Progress Notes contains entries dated at

6

11:30 and 17:30 on February 21, 2013.

(See id. at 9.)

The latter

entry states:
[Plaintiff] had ultrasound of his scrotum this
afternoon and found to have 9ed [sic] to no blood supply
to his [right] testicle.
His surgeon at UNC was
emergently
contacted
[Defendant].
I
talked
to
[Defendant] and he said that they were aware that the
blood supply to the [right] testicle was diminished and
there was a good chance that [Plaintiff] may loose [sic]
the [right] testicle. In light of cirrhosis this was
explained to [Plaintiff]. [Defendant] said there was no
need to surgically remove the testicle and said testicle
will atrophy. Since [Plaintiff] is not symptomatic and
is in great pain will observe and treat conditions
conservatively. . . .
Situation also explained to
[Plaintiff] and he understands. . . .
(Id.)
Written by an unknown individual,4 the second page of Provider
Progress Notes contains five entries dated from 20:20 to 21:45 on
February 21, 2013.

(See id. at 10.)

The initial two entries, at

20:20 and 20:40, possess the most pertinence for the Summary
Judgment Motion.

These entries state, respectively:

call reviewed records. [Plaintiff] æ [sic] [right]
testicular torsum per Dr Tharrington [illegible]
Radiologist came to send [Plaintiff] out to UNC however
chart reviewed c [sic] states [Plaintiff] and team
already aware of low blood flow to testicle. . . . .
Spoke wit paged Dr Qureshi at UNC surgery. states
urological problem. call urology. [Defendant] didn’t
believe torsum earlier but thought ischemia.
states

4 A marked difference in handwriting exists between the first
and second pages of these notes. (Compare id., with id. at 10.)
Unlike the entries on the first page (see id. at 9), the entries on
the second page lack an identifying signature (see id. at 10).
7

urological emergency states send [Plaintiff] out.
prior ? [sic] confusion and [ambiguities]. . . .

Note

(Id.)5
In light of these medical records, “Plaintiff asserts that he
has proven his Civil Rights claim and that there are no genuine
issues as to any material fact that would keep Summary Judgement
from being awarded to him.”
III.

(Docket Entry 29 at 4.)

Defendant’s Response

Conversely, Defendant maintains that “Plaintiff’s [Summary
Judgment Motion] should be denied because there is a genuine issue
as

to

whether

condition.”

[Defendant]

was

even

informed

of

Plaintiff’s

(Docket Entry 30 at 7 (all-cap font omitted).)

In

support of this assertion, Defendant submitted an affidavit as well
as certain of Plaintiff’s UNC Health Care medical records.
Docket Entry 30-1.)

(See

In pertinent part, Defendant’s affidavit

states:
4.
I understand that there is a medical record
entry in [Plaintiff’s] possession where Physician
Assistant Kurian (“[P.A.] Kurian”), who appears to have
been a physician assistant at Central Prison at the time,
charted that he spoke with me on February 21, 2013. This
note states that [P.A.] Kurian called me and advised me
of
an
ultrasound
showing
low
blood
supply
to
[Plaintiff’s] testicle. The note further claims that I
told [P.A.] Kurian that we were aware of the decreased
blood supply and that there was nothing to be done.

5
“Ischemia” means “localized tissue anemia due to
obstruction of the inflow of arterial blood.”
Ischemia,
Merriam-Webster Unabridged Dictionary, http://unabridged.merriamwebster.com/unabridged/ischemia (last visited June 20, 2017).
8

5. This February 21, 2013 note from [P.A.] Kurian
cannot be correct. I do not recall speaking with [P.A.]
Kurian on that date, and I do not believe that I did
speak with him. There is no entry in [Plaintiff’s] chart
from me regarding such a conversation, and if one had
occurred I would have charted it. Also, I would never
advise a physician assistant that nothing should be done
in such a situation.
6. Moreover, there are two phone message notes in
[Plaintiff’s] medical records from UNC Health Care that
suggest that [P.A.] Kurian’s February 21, 2013 note must
have been mistaken.
7. There is a note from Dr. Cory Forbach (attached
here to as Exhibit 1) noting that he received a call on
February 21, 2013 at 15:23 from [P.A.] Kurian.
Dr. Forbach charted that he was told by [P.A.] Kurian
that [Plaintiff] had an ultrasound performed that was
potentially·concerning for testicular torsion.
Dr.
Forbach then informed [P.A.] Kurian to have [Plaintiff]
sent to the nearest emergency department.
8. UNC Health Care’s medical records also contain
a note from a Nurse Practitioner Megan Randall noting
that she received a page from [P.A.] Kurian on February
21, 2013 at 16:42 (attached hereto as Exhibit 2).
Ms. Randall noted that she received no answer when she
tried to return the page, but that if [P.A.] Kurian
called back he was to be directed to go to the nearest
emergency department.
9. Based on these notes, and based on my memory, I
do not believe that I spoke with [P.A.] Kurian on
February 21, 2013 as he charted in [Plaintiff’s] medical
records, and I know that I did not inform [P.A.] Kurian
to take no action as he charted in [Plaintiff’s] medical
records.
(Id. at 2-3.) Based on this affidavit and its supporting exhibits,
Defendant

contends,

a

genuine

issue

of

material

fact

exists

regarding whether P.A. Kurian spoke with Defendant on February 21,
2013, precluding summary judgment in Plaintiff’s favor.
Docket Entry 30 at 8.)
9

(See

As a final matter, Defendant avers that Dr. Isserlin, rather
than

Defendant,

treated

Plaintiff

(See Docket Entry 30-1 at 3-4.)

on

February

19,

2013.

Defendant submitted treatment

notes by Dr. Isserlin to corroborate this assertion.

(See id. at

12-13.)
IV.

Analysis

Plaintiff

asserts

that

Defendant

displayed

deliberate

indifference to his “serious medical need by failing to initiate
action when he first knew of the lack of or decreased blood flow
and possible impending loss of [Plaintiff’s] testicle and by
counseling against tak[i]ng any preventative action to prevent its
loss.”

(Docket Entry 2 at 6.)

To succeed on his claim, Plaintiff

must establish that Defendant “acted with ‘deliberate indifference’
(subjective) to [his] ‘serious medical needs’ (objective).” Iko v.
Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (quoting Estelle v.
Gamble,

429

U.S.

97,

104

(1976)).6

“To

prove

deliberate

6 Because Plaintiff qualified as a North Carolina pretrial
detainee at all pertinent times, his claim arises under the Due
Process Clause of the Fourteenth Amendment. See Bell v. Wolfish,
441 U.S. 520, 535 (1979); see also Young v. City of Mount Ranier,
238 F.3d 567, 575 (4th Cir. 2001) (“[D]eliberate indifference to
the serious medical needs of a pretrial detainee violates the [D]ue
[P]rocess [C]lause.”).
The same analysis appears to apply to
Section 1983 deliberate indifference claims under the Fourteenth
Amendment as under the Eighth Amendment. See Duff v. Potter, No.
1:15-cv-26, 2016 WL 1615684, at *5 & n.4 (W.D.N.C. Apr. 22, 2016)
(noting that “[t]he Supreme Court in Kingsley[ v. Hendrickson, __
U.S. __, 135 S. Ct. 2466 (2015),] did not explicitly extend the
objective reasonableness standard for excessive force claims to
other claims brought by pretrial detainees, including deliberate
indifference claims”), aff’d in part, vacated in part, remanded on
10

indifference, [P]laintiff[] must show that ‘[Defendant] kn[ew] of
and disregard[ed] an excessive risk to [his] health or safety.’”
Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (fourth and
fifth sets of brackets in original) (quoting Farmer v. Brennan, 511
U.S. 825, 837 (1994)).
Multiple avenues exist for proving deliberate indifference to
a serious medical need.

See, e.g., id. at 226 (explaining that a

plaintiff can establish deliberate indifference by showing “that a
[defendant] knew of a substantial risk from the very fact that the
risk was obvious” or that “a substantial risk of [serious harm] was
longstanding, pervasive, well-documented, or expressly noted by
prison officials in the past, and the circumstances suggest that
the defendant-official . . . had been exposed to information
concerning the risk and thus must have known about it” (internal
quotation marks omitted; final set of brackets and ellipsis in
original)).

Under any approach, though, deliberate indifference

“requires that [the defendant] actually know of and disregard an
objectively serious condition, medical need, or risk of harm.”
De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (internal
quotation marks omitted).

other grounds, 665 F. App’x 242 (4th Cir. 2016); but see Kinder v.
Merced Cty., No. 1:16-cv-1311, 2016 WL 5341254, at *3-4 (E.D. Cal.
Sept. 22, 2016) (applying Kingsley objective reasonableness
standard to pretrial detainee’s deliberate indifference claim).
11

Here,
Defendant

Plaintiff
possessed

submitted

evidence

suggesting

knowledge

of

decreased

the

(i)

that

testicular

bloodflow, (ii) that P.A. Kurian spoke with Defendant on February
21, 2013, and (iii) that Defendant instructed P.A. Kurian not to
take

action

testicle.

regarding

the

decreased

bloodflow

(See Docket Entry 26 at 9-10.)

to

Plaintiff’s

Defendant, however,

submitted evidence suggesting (i) that he did not treat Plaintiff
on February 19, 2013 (see Docket Entry 30-1 at 3-4, 12-13),
(ii) that P.A. Kurian did not speak with him on February 21, 2013
(see id. at 3, 8), and (iii) that UNC medical personnel did not
tell P.A. Kurian to take no action regarding Plaintiff’s medical
situation (see id. at 3, 8, 10).

Thus, construing the evidence in

the light most favorable to Defendant, a reasonable jury could
conclude that Defendant did not (i) treat Plaintiff on February 19,
2013, (ii) speak with C.P. medical personnel on February 21, 2013,
or (iii) possess knowledge of Plaintiff’s decreased testicular
bloodflow.

Accordingly,

a

material

factual

dispute

exists

regarding whether Defendant “actually kn[e]w of” the decreased
bloodflow to Plaintiff’s testicle (as well as whether Defendant
disregarded

such

medical

need).

(internal quotation marks omitted).
summary judgment remains improper.

12

De’lonta,

708

F.3d

at

525

Under these circumstances,
See Evans, 80 F.3d at 959.

CONCLUSION
Plaintiff has not shown entitlement to judgment as a matter of
law.
IT IS THEREFORE RECOMMENDED that the Summary Judgment Motion
(Docket Entry 29) be denied.
This 20th day of June, 2017.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

13