DURAND v. CHARLES

Filing 55

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 02/07/2018, that the Summary Judgment Motion (Docket Entry 43 ) be granted. (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 “Defendant’s Motion for
Summary

Judgment”

Motion”).1

(Docket

Entry

43)

(the

“Summary

Judgment

For the reasons that follow, the Court should grant the

Summary Judgment Motion.
BACKGROUND
I.

Procedural History

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 3-

1 For legibility reasons, this Opinion omits all-cap font in
quotations from the parties’ materials.

6.)2

Defendant initially moved to dismiss the Complaint “pursuant

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

Thereafter, the parties commenced discovery.
dated Jan. 30, 2017 (authorizing discovery).)

(See Text Order

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 opposed (see Docket Entry
30).

Finding that “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)” (Docket Entry 34 at 12 (quoting De’lonta v. Johnson,

2 Citations herein to Docket Entry pages utilize the CM/ECF
footer’s pagination.
2

708 F.3d 520, 525 (4th Cir. 2013))), the Court denied Plaintiff’s
summary judgment request (see Docket Entry 38 at 1).

After

discovery closed, Defendant filed his Summary Judgment Motion (see
Docket Entry 43 at 2-3), in response to which Plaintiff filed both
a

“Response

in

Opposition

to

Defendants

Motion

for

Summary

Judgement” (Docket Entry 52) (the “Response”) and an unauthorized
surreply,

entitled

“Plaintiffs

Response

to

Defendants

Reply”

(Docket Entry 54) (the “Surreply”).3
II.
As

Factual History
relevant

to

the

Summary

Judgment

Motion,

the

record

reflects the following:
A.

Plaintiff’s Allegations

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

(Docket Entry 2 at 4.)4

On February 1, 2013,

3 “If an evidentiary objection is raised by the moving party
in its reply memorandum, the non-moving party may file a surreply
memorandum . . . within seven (7) days addressing only the
evidentiary objection.”
M.D.N.C. LR 7.6.
Plaintiff’s Surreply
does not appear to meet that criteria. (See Docket Entry 54 at 2-5
(detailing three alleged “material issues in dispute”).) However,
Defendant did not object to the Surreply (see Docket Entries dated
Nov. 29, 2017, to present), consideration of which does not affect
resolution of the Summary Judgment Motion.
4 “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 34 at 4 n.3 (internal quotation marks
omitted).)
3

Defendant performed “a right inguinal hernia repair with mesh” on
Plaintiff “at the U.N.C. Medical Center at Chapel Hill” (the
“U.N.C.M.C.”).

(Id.)

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

scrotum became swollen and painful,” prompting his return on
February 7, 2013, to the U.N.C.M.C., “where an exploration by
[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 “developed a painful swollen

hardened mass surrounding his right testicle” and, at a U.N.C.M.C.
appointment 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.)

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

4

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,” contacted “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.) “[Plaintiff] was again taken to the
U.N.C.M.C.[,] where,” on the morning of February 22, 2013, Dr.
Gorden Fifer conducted exploratory surgery, which “revealed a
necrotic right testicle which was removed.”

(Id.)

On March 25,

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

5

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.”
B.

(Id.)

U.N.C.M.C. Records

In regard to these allegations, the parties submitted various
U.N.C.M.C. medical records from January and February of 2013, which
reflect the following:
On January 3, 2013, Defendant examined Plaintiff regarding an
“inguinal

hernia

of

several

months’

duration

that

has

been

reducible” (Docket Entry 44-1 at 1), but which “has had increasing
pain and irritations” (id. at 2).

“[They] discussed the risks and

benefits of the procedure doing a right open hernia repair with
mesh.”

(Id.)

“[Plaintiff] expressed that he understood the risks

and benefits and would like to proceed with the procedure,” which
“ha[d] been scheduled for [February 1, 2013].”

(Id.)

On February 1, 2013, Defendant participated in a surgery on
Plaintiff’s “right inguinal hernia” (id. at 4).

(See id. at 3-5.)

Five days later, Plaintiff “presented back to the Emergency Room
complaining

of

bilateral

groin

pain.”

(Id.

at

6.)

An

“[u]ltrasound was done that reportedly was described as having a
recurrent hernia,” prompting a CT scan.

(Id.)

The CT scan “was

misread as a recurrent hernia, but later corrected, but based on

6

his initial report it was decided to bring him to the operating
room for an exploration of his groin” on February 7, 2013.

(Id. at

6-7.) Defendant participated in this operation (see id.), in which
(1) the spermatic cord “was found to be viable,” (2) “[t]he floor
of the inguinal canal was inspected and the mesh was found to be
well attached and viable,” and (3) “[t]here was no evidence of any
recurrent hernia.”

(Id. at 7.)

“The distal portion of the

spermatic cord was then inspected and, using blunt dissection, the
distal hernia sac was then brought into the wound.

A small amount

of ornentum was found in it and this was removed.

Some of the sac

was then excised.”

(Id.)

“The resulting wound was then copiously

irrigated with normal saline solution” and closed.
On

February

19,

2013,

Plaintiff

received

(Id.)
“an

urgent

evaluation” at the U.N.C.M.C. because “[h]is physician in the
prison was recently concerned that he had recurred.” (Docket Entry
44-4 at 1.)

Dr. Benjamin Isserlin conducted this examination

(see id. at 1-2), during which Plaintiff “[wa]s sitting in no
apparent distress” (id. at 1).

According to Dr. Isserlin,

[f]ocused examination of the abdomen and groin reveal a
well-healed right inguinal hernia repair incision,
without any evidence of infection or leakage.
There
[wa]s a significant amount of swelling through the cord
and into the right scrotum. The right scrotum itself
[wa]s quite swollen and indurated without any evidence of
bruising or hematoma.
[Dr. Isserlin was] unable to
palpate the right testicle.
On Valsalva, the hernia
repair [wa]s intact, without any evidence of recurrence.
The remainder of the physical examination [wa]s
unremarkable.

7

(Id. at 1-2.)

Dr. Isserlin “informed [Plaintiff] that there [wa]s

no obvious evidence of hernia recurrence and that his repair
appear[ed] to be intact.”

(Id. at 2.)

Dr. Isserlin noted that

Plaintiff was “certainly having a significant degree of swelling,
although [Dr. Isserlin] suspect[ed] this [wa]s likely due to the
dissection of the distal sac.

[Dr. Isserlin] advised him to

continue with icing and elevation of the scrotum and to continue
with NSAIDs for his discomfort.”

(Id.)

Plaintiff told Dr.

Isserlin “that there [wa]s an ultrasound scheduled” for an unknown
future date, which Dr. Isserlin subsequently learned was February
22, 2013.

(Id.)

U.N.C.M.C. “asked that a copy of the [ultrasound]

report be sent to [it] and [indicated] that [U.N.C.M.C.] will see
[Plaintiff] in followup on a[n as-needed] basis, should there be
any concerns with that ultrasound.”

(Id.)

On February 21, 2013, Dr. Cory Forbach received a call from
P.A. Kurian as to a “concern for testicular torsion” regarding
Plaintiff.

(Docket Entry 44-11 at 1.)5

The message lists the

“Call-in Time” as 15:23:36 and states as the “Reason for Call” that
“Dr. Kurian (sp?) called from Central Prison because this patient
had

an

ultrasound

testicular torsion.

today

that

was

reportedly

concerning

for

Because [Plaintiff] had an R inguinal hernia

5
The U.N.C.M.C. “Phone Messages” records identify the
relevant “Author” without specifying such person’s job title. (See
id. at 1-2.) Defendant’s affidavit identifies these individuals’
job titles: “Dr. Cory Forbach” (Docket Entry 44-3, ¶ 8) and “Nurse
Practitioner Megan Randall” (id., ¶ 9).
8

repair on

2/7,

the

prison

physician

wanted

[Dr.

Forbach]

authorize an admission/transfer from the prison.”

(Id.)

to
Dr.

Forbach
explained that, while [Dr. Forbach} agree[d] that
testicular torsion [wa]s a surgical emergency, [P.A.
Kurian] need[ed] to call the transfer center and have the
patient sent to the Emergency Department as per protocol
for emergent urologic evaluation and management. [Dr.
Forbach] did not understand exactly what was [P.A.
Kurian’s] reluctance to speaking with the transfer
center, but [Dr. Forbach] explained 2-3 times that
testicular torsion [wa]s a urologic emergency and that he
must get the patient ASAP to the UNC ED via the transfer
center. [P.A. Kurian] acknowledged that he understood
and planned to call the transfer center immediately after
[they] ended [their] conversation.
(Id.)

However,

a

U.N.C.M.C.

“Phone

Message[]”

by

Nurse

Practitioner Megan Randall with a “Call-in Time” of 16:42:04 on
February 21, 2013, states:
paged with a message to call Dr. Kurian at 919-743-3977
at Craven Correctional Facility for “decreased blood flow
to the surgical area.” There is no answer at this # nor
at the # listed for him at 252-244-3337. If he calls
back, he should be directed to the nearest ED.
(Id. at 2.)6
At 21:50 on February 21, 2013, the U.N.C.M.C. emergency
department received a “[r]eport from Central Prison” regarding
Plaintiff, who had “ongoing R testicular pain since his R inguinal

6 As Plaintiff emphasizes (see Docket Entry 52 at 8 (“[T]he
computer generated time stamp on this call log is finished before
it starts.”)), this message states that it was “[c]losed by” Nurse
Practitioner Randall at “16:33:01.301301” (Docket Entry 44-11 at
2). In turn, the first message indicates that it was “[c]losed by”
Dr. Forbach at “15:29:07.316551.” (Id. at 1.)
9

hernia repair on 2/813 [sic] today had U/S done concerned for R
testicular torsion [Plaintiff] sent to UNC for further evaluation
by Urology.

[Plaintiff] given Oxycodone lOmg po at 2105 . . . .”

(Docket Entry 44-5 at 5.)

Plaintiff arrived at the U.N.C.M.C.

emergency department at 22:56 on February 21, 2013, where a nurse
began evaluating him at 22:59.

(Id.)

Triage notes indicate that

Plaintiff experienced “R testicular pain since his hernia surgery
on 2/1/13 described as squeezing pain s/p U/S today concerned for
decreased blood flow r/o Torsion” (id. at 5-6), but that his
“[p]ain level now” equaled “0/10” (id. at 6).
Emergency

Department

doctor’s

“History

of

Meanwhile, the
Present

Illness”

describes Plaintiff’s “Chief Complaint” as “right testicular pain
and swelling.

This started 2/1/13 and is still present.

gradual in onset.

At its maximum, severity described as severe.

When seen in the E.D., severity described as moderate.”
1.)

It was

A

physical

examination

scrotal

swelling

with

revealed

tenderness.

fluctuance or ulceration.

“[m]oderate

No

(Id. at

right-sided

induration,

erythema,

Mild tenderness of the right testicle.”

(Id. at 2.)
U.N.C.M.C. personnel also conducted a scrotal sonogram, which
revealed abnormal arterial blood flow, abnormal venous blood flow,
and abnormal testis.

(Id.)

More specifically, “[n]o blood flow

was identified in the right testis,” and “[t]here was diffuse
scrotal

wall

thickening/edema,

right

10

greater

than

left,

with

increased blood flow in the right scrotal wall.” (Id. at 2-3.)

“A

comparison with prior studies reveals that the findings are new.”
(Id. at 3.)

Following a urology “[c]onsultation performed in ED”

(id. at 5), Plaintiff was “[a]dmitted to Urology and Operating
room” (id.) shortly after 4 a.m. on February 22, 2013 (see id. at
7).
Dr. Fifer then conducted a “[s]crotal exploration with right
orchiectomy” for Plaintiff’s “[i]schemic right testicle.”
Entry 44-1 at 9.)

(Docket

Dr. Fifer’s report regarding the surgery

provides the following “Indications for Surgery:”
The patient is a 47-year-old white male prisoner who at
the beginning of the month underwent a right inguinal
hernia repair and about a week later was complaining of
scrotal swelling and pain. An ultrasound and CT scan
were performed, which suggested failure of the hernia
repair. He underwent repeat exploration, which showed
intact hernia repair with a small remnant of hernia sac
containing omenturn, which was excised at that time.
Ultrasound did show good flow to the testes at that time.
By history, the patient reports he was having continued
severe scrotal and inguinal pain following that procedure
for several days, but has actually since diminished. He
had a routinely scheduled ultrasound performed at the
prison yesterday, which was suggestive of compromise of
blood flow to the testis. The patient was transferred to
the UNC Emergency Department where a repeat ultrasound
was performed, which did confirm absence of blood flow to
the testicle. We discussed surgical exploration with the
patient with possible orchiopexy versus orchiectomy and,
after discussion of the risks and benefits of the
procedure, the patient wished to proceed.
(Id. at 9-10.)
Dr. Fifer’s “Operative Findings” include “1) Ischemic right
testis with necrosis visible in epididymis; 2) dense inflammatory

11

rind surrounding entire spermatic cord with compressive effect;
[and] 3) no evidence of testicular torsion or spermatic cord
torsion[.]”

(Id. at 10.)

In regard to the procedure, Dr. Fifer

reported:
We did note significant scrotal wall edema. . . . Using
blunt finger dissection, we were able to free up some
inflammatory
attachments
around
the
testis
circumferentially. . . . Using blunt dissection, we
continued to free the spermatic cord, which was
remarkably thickened and also covered by a very thick
inflammatory rind as well. We carried this up past the
level of the pubic tubercle where we did believe we could
palpate mesh covered by a layer of inflammatory tissue as
well. With the cord mobilized, we used the Doppler
ultrasound probe to try to establish any blood flow, but
were not able to pick up any waveforms whatsoever. . . .
We then dissected the inflammatory rind off of the
spermatic cord to see if we could relieve compression and
repeated Doppler which again failed to pick up any
waveform suggestive of either venous or arterial flow.
At this point, we felt that this testis was not
salvageable and made the decision to excise it. . . .
(Id.)
C.

DPS Records

In

regard

to

Plaintiff’s

allegations,

the

parties

also

submitted certain of Plaintiff’s DPS medical records.
To begin with, Plaintiff submitted DPS “Chronological Record
of Health Care Inpatient/Outpatient Notes” from February 1, 2013,
and February 2, 2013.

(Docket Entry 52-1 at 2.)

The first set of

notes references Plaintiff’s scheduled surgical appointment at
U.N.C.M.C. and his return “from UNC Hosp” that evening following
his surgery.

(Id.)

The entry dated “2-2-13 2015” indicates that
12

Plaintiff “walked to medical from Albemarle B Block” to report
“postop

pain,”

specifically

“minimal

pain

(mostly

pain

near

surgical site),” at which time his “[right] testicle [was] noted to
be larger than [left] testicle.”

(Id.)

Written in a different

handwriting below that entry, an additional note states that
“[Plaintiff was] declared medical emergency for increased op site
pain” and was “brought to medical by custody.”

(Id.)

At that

time, Plaintiff indicated his pain equaled “7-8 on a 1-10 scale,”
but “[n]o grimacing [was] noted on [his] face [and he] ambulate[d]
without difficulty.”

(Id.)

Plaintiff also submitted DPS Provider Progress Notes by Dr.
James Engleman.

On February 4, 2013, Dr. Engleman noted that the

“Post op site is good” but that “significant edema is likely MC
[sic] to just fluid shifts MC [sic] to his cirrhosis and it is
unclear how much IVF he got . . . plus the long ride home.”
(Docket Entry 52-2 at 2.)

On February 6, 2013, Dr. Engleman noted

increased scrotal size, with the “scrotum now cantelope size[,]
edema of scrotal wall[,] and intrascrotal fluid.”

(Id. (emphasis

in original).) Dr. Engleman also noted that it “is full and tender
throughout [right] pubic [illegible].”
prompted

Dr.

Engleman

to

send

(Id.)

Plaintiff

These developments
back

to

U.N.C.M.C.

(See id. at 3.)
Plaintiff

and

Defendant

both

submitted

Plaintiff’s

DPS

Provider Progress Notes from February 21, 2013. (See, e.g., Docket

13

Entries 44-2, 52-3.)

Written by P.A. Kurian, the first page of

Provider Progress Notes contains entries dated at 11:30 and 17:30
on February 21, 2013.

(See Docket Entry 44-2 at 1.)

The first

entry notes a solid mass, “probably solidified fluid,” in the right
“scrotal/inguinal area,” and states that an ultrasound will “be
done on 2/22/13 to R/O hernia recurrence.”

(Id.)

The subsequent

entry states:
[Plaintiff] had ultrasound of his scrotum this
afternoon and found to have [decreased] 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 surgical[l]y remove the testicle and said
testicle will atrophy.
Since [Plaintiff] is not
symptomatic and is [without] great pain[,] will observe
and treat conditions conservatively. Care discussed with
Dr. Kyerematen and Dr. Maticko and they agree to plan.
Situation
also explained
to
[Plaintiff]
and
he
understands. [Plaintiff] stable.
(Id.; see also Docket Entry 44-10 at 4 (setting forth P.A. Kurian’s
deposition testimony confirming the accuracy of the foregoing
recitation of his handwritten note).)
The second page of Provider Progress Notes contains five
entries dated from 20:20 to 21:45 on February 21, 2013, written by
Dr. Margaret Bowen.

(See Docket Entry 44-2 at 2; see also id. at

3; Docket Entry 44-10 at 10.)

These entries state:

2020 call reviewed records.
[Plaintiff] [with]
[right] testicular torsion per Dr Tharrington Cary
Radiologist came to send [Plaintiff] out to UNC however
14

chart reviewed [and] states [Plaintiff] and team already
aware of low blood flow to testicle. [illegible] [right]
testicular torsion.
2040 Spoke wit paged Dr Qureshi at UNC surgery.
states urological problem. call urology. [Defendant]
didn’t believe torsion earlier but thought ischemia.
states urological emergency states send [Plaintiff] out.
Note prior ? [sic] confusion and [ambiguities].
[Plaintiff]
[complains
of]
intermittent
[right]
testicular pain.
spoke [with] Dr. Maticko who agrees
[Plaintiff]
to
be
transfer[red]
for
urological
evaluation.
2100 Dr McKew urologist page [illegible] through
transfer center.
2140 spoke [with] Dr McKew [illegible] transfer
center @ length.
Dr McKew states [Plaintiff] had 2
surgeries.
[Plaintiff] needs to be evaluated by
surgeons. Told Dr McKew what surgery had discuss [with]
me [and] radiology report Dr McKew believes [Plaintiff]
to go to ED to be evaluated [and] thoroughly.
[illegible] [Plaintiff]
2145 Dr Courns ED physician discuss case in detail.
OK to see be evaluated in ED
(Docket Entry 44-2 at 2.)7
Finally, Plaintiff and Defendant submitted Dr. Tharrington’s
radiology report.
relevant

part,

(See, e.g., id. at 3; Docket Entry 52-6.)

the

report

notes

the

“absence

of

In

appreciable

intratesticular vascular flow by current imaging, raising question
of ongoing or acute testicular torsion, with immediate surgical
consultation and follow up urged in this regard.”
44-2 at 3.)

(Docket Entry

Dr. Tharrington’s “Impression” from this ultrasound

7 P.A. Kurian also confirmed the accuracy of the foregoing
recitation of the 20:20 and 20:40 notes during his deposition.
(See Docket Entry 44-10 at 10-12.)
15

includes:
with

“1] no identifiable right intratesticular vasular flow,

immediate

emergency

surgical

consultation

and

follow

up

therefore urged with regard to testicular torsion of unknown
chronicity,” and “2] abnormal but nonspecific right inguinal canal
to right intrascrotal extratesticular complex-character fluid and
additional material . . . . Surgical consultation and follow up
recommended in this regard as well.”

(Id.)

The report also notes

that Dr. Tharrington discussed his “[p]reliminary report of above
results” via telephone with Dr. Bowen at the C.P. Emergency Room at
19:58 on February 21, 2013.
D.

(Id.)

Defendant’s Affidavit

In support of his Summary Judgment Motion, Defendant submitted
a personal affidavit (Docket Entry 44-3) (the “Affidavit”). In the
Affidavit, Defendant avers that the 17:30 note on February 21,
2013,
from [P.A.] Kurian cannot be correct. [Defendant] do[es]
not recall speaking with [P.A.] Kurian on that date, and
[Defendant] do[es] not believe that [Defendant] did speak
with him. There is no entry in [Plaintiff’s] chart from
[Defendant] regarding such a conversation, and if one had
occurred [Defendant] would have charted it.
Also,
[Defendant] would never advise a physician assistant that
nothing should be done in such a situation.
(Id., ¶ 6.)

Based on the telephone message records from Dr.

Forbach and Nurse Practitioner Randall (see id., ¶¶ 8-9), “and
based on [Defendant’s] memory, [Defendant] do[es] not believe that
[Defendant] spoke with [P.A.] Kurian on February 21, 2013[,] as he
charted in [Plaintiff’s] medical records, and [Defendant] know[s]
16

that [Defendant] did not inform [P.A.] Kurian to take no action as
he charted in [Plaintiff’s] medical records” (id., ¶ 10).
Defendant also avers that he “did not treat or see [Plaintiff]
on his visit to UNC Hospital on February 19, 2013.”

(Id., ¶ 11.)

Instead, per U.N.C.M.C. medical records, “Dr. Isserlin treated
[Plaintiff] on that date.”

(Id.)

Defendant further asserts that

he lacked control over (1) “where [Plaintiff] was housed or located
on February 21, 2013” (id., ¶ 13), (2) the medical treatment
Plaintiff received in February 2013, and (3) the transfer of
Plaintiff to U.N.C.M.C. for treatment.

(Id., ¶¶ 12-14.)

In

particular, Defendant states that,
[b]ased on [his] review of the medical records and [his]
understanding of how the medical treatment of inmates
works, [he] did not have the ultimate control or
authority over whether [Plaintiff] would be transferred
to UNC Hospital on February 21, 2013.
As an outside
physician, the only thing that [he] could have done to
have [Plaintiff] seen at UNC Hospital would be to make
that recommendation to [Plaintiff’s] treating physicians
at [C.P.] Hospital.
Those physicians would have then
decided whether or not to transfer the patient to UNC
Hospital.
(Id., ¶ 12.)

Similarly, Defendant states that he “could make

recommendations”

regarding

Plaintiff’s

“medical

treatment

in

February 2013[,] . . . . but it was up to [Plaintiff’s] medical
providers within the prison system to determine whether or not
those recommendations would be followed.”

(Id., ¶ 14.)

Defendant concludes the Affidavit by stating that he remains
certain that [he] was never aware of, and never ignored,
any substantial risk of harm to [Plaintiff] on February
17

21, 2013. [Defendant] would never consciously disregard
any risk of harm to a patient or former patient, and [he]
never consciously disregarded any risk of harm to
[Plaintiff].
(Id., ¶ 16.)
E.

Deposition Excerpts

In further support of the Summary Judgment Motion, Defendant
submitted excerpts from depositions of P.A. Kurian and Plaintiff.
(See Docket Entries 44-9, 44-10.)
i.

P.A. Kurian’s Deposition

P.A. Kurian testified that he did not remember making the
17:30 note on February 21, 2013.

(See Docket Entry 44-10 at 4-5.)

He similarly indicated that he did not remember the conversation
with Dr. Forbach detailed in Dr. Forbach’s phone message record.
(Id. at 6.)

Nor did P.A. Kurian remember why his notes on February

21, 2013, fail to mention either the conversation with Dr. Forbach
or the telephone message from Nurse Practitioner Randall reflected
in the U.N.C.M.C. medical records.

(See id. at 5-7.)

P.A. Kurian

then engaged in the following exchange with defense counsel:
[Defense Counsel:] Is it possible that maybe you talked
to Dr. Cory Forbach and not [Defendant], and perhaps
misunderstood what was being said?
[P.A. Kurian:] I don’t remember any people, so it could
be — anything is possible. I don’t know. This is so
many years ago, and I don’t — I don’t remember anything.

18

[Defense Counsel:] Sure. Okay. So possibly, you never
actually talked to Dr. Charles, then, correct?
[P.A. Kurian:]

Possibly, yeah.

(Id. at 7.)
Based on his 17:30 note, P.A. Kurian stated that, in “a case
like this, [he] probably discussed with both” Dr. Kyerematen,
Plaintiff’s “[p]robabl[e]” C.P. hospital doctor (id. at 9), and Dr.
Maticko, the C.P. Hospital Director (id. at 8), “to get the okay
from them to do what [they] were — what [P.A. Kurian] was doing”
(id. at 9).

According to P.A. Kurian, both Dr. Kyerematen and Dr.

Maticko “could have . . . . overrule[d]” him and transferred
Plaintiff to the emergency department. (Id. at 9-10.) Finally, in
regard

to

Dr.

Bowen’s

notes,

P.A.

“d[id]n’t see any confusion here.”

Kurian

explained

(Id. at 12.)

that

he

Instead, he

offered this understanding of what happened on February 21, 2013,
per the notes:
[A]fter the ultrasound was done, we saw the decreased
blood flow, and [P.A. Kurian] talked to . . .
[Defendant]. And [P.A. Kurian] also — so [he] got the
recommendation. [He] talked it over with Dr. Maticko and
Kyerematen.
And at that time, it was decided to go
conservatively. But then . . . [P.A. Kurian is] gone.
Then the patient made a complaint.
And so Dr. Bowen
looked at it. And she thought it was more serious or
whatever. And she talked to Maticko. And they decided
to send him.
(Id. at 12-13.)

19

ii.

Plaintiff’s Deposition

In his deposition, Plaintiff indicated that P.A. Kurian served
as his “primary care provider” at C.P. hospital following his
second surgery in early February 2013.

(Docket Entry 44-9 at 5.)

In addition, Dr. Kyerematen and Dr. Maticko periodically checked on
Plaintiff.

(Id. at 5-6.)8

During this time, Plaintiff “was

developing a hardened mass surrounding [his] right testicle,” which
“was getting more painful.”

(Id. at 5.)

P.A. Kurian arranged for

Plaintiff to receive an ultrasound and appointment at U.N.C.M.C. to
“have that issue checked out” (id. at 7).

(See id. at 6-7.)

that

‘in

appointment,

“[Defendant]

did

an

and

out,’”

At
but

“[Plaintiff] was actually being seen by Dr. Isserlin.” (Id. at 7.)
In other words, “[w]hen [Defendant] came in, that was, like, a
quick in and out.

It wasn’t to treat [Plaintiff] specifically.

[Plaintiff is] actually not sure why [Defendant] -- why he came
in.”

(Id.)
F.

Expert Report

Finally,

Defendant

submitted

the

“Expert

Report

of

Kent

Kercher, MD” (Docket Entry 44-6) (the “Expert Report”) and the
“Affidavit of Kent Kercher, MD” (Docket Entry 44-8) (the “Expert

8
In response to defense counsel’s questions, Plaintiff
agreed that P.A. Kurian, Dr. Kyerematen, and Dr. Maticko could each
have “sent [Plaintiff] to the emergency room regardless of what
[Defendant] said.” (Id. at 8.)
20

Affidavit”).9

According to the clinical history detailed in the

Expert Report, “[a]t approximately 15:00 on the afternoon of
February 21, a scrotal [ultrasound] was performed [on Plaintiff]
. . . with findings of a complex organizing hematoma in the right
inguinal canal and no identified blood flow to the right testicle.”
(Docket

Entry

44-6

at

4.)

After

Plaintiff’s

transfer

to

U.N.C.M.C.,
[r]epeat scrotal ultrasound at 01:35 on February 22
confirmed an ‘edematous right testis and epididymis
without evidence of internal blood flow, consistent with
torsion.’
Urologic consultation was obtained and
[Plaintiff] described a history of ‘waxing and waning’
scrotal swelling and pain since his hernia surgery, but
that his pain had ‘overall improved.’ While the clinical
history was felt to be inconsistent with testicular
torsion, the urology team recommended scrotal exploration
in light of the ultrasound reading which suggested
testicular torsion.
(Id.)

“During surgical re-exploration at approximately 05:00 on

February 22, intra-operative findings included:
testis’

with

spermatic

‘dense

cord

with

testicular torsion.’”

inflammatory
compressive

rind

‘ischemic right

surrounding

effect’

and

‘no

the

entire

evidence

of

(Id. at 4-5.)

9
In formulating his opinions for the Expert Report, Dr.
Kercher reviewed the Complaint, Defendant’s affidavit in opposition
to Plaintiff’s motion for summary judgment (see Docket Entry 30-1),
and Plaintiff’s medical records from the “UNC Surgery Clinic,” the
“UNC Hospital,” the DPS, and the “UNC Urology Clinic.” (Docket
Entry 44-6 at 2.) The opinions he expressed in the Expert Report
“are held to a reasonable degree of medical certainty.” (Id. at
1.) For the Expert Affidavit, Dr. Kercher additionally reviewed
Plaintiff’s and P.A. Kurian’s depositions. (See Docket Entry 44-8,
¶ 3.)
21

In regard to Plaintiff’s allegations, Dr. Kercher opines that
Plaintiff’s

testicular

ischemia

“was

neither

predictable

nor

preventable” and “was the result of acute and chronic postoperative
scrotal and cord edema resulting in slow, progressive compression
of the blood supply to his right testicle.”

(Id. at 7.)

More

specifically, “it is [his] opinion that [Plaintiff’s] testicular
ischemia evolved over a period of days to weeks between the time of
re-exploration on February 7 and orchiectomy on February 22.” (Id.
at 8.)

The “‘dense inflammatory rind . . . surrounding the entire

spermatic cord with compressive effect’” discovered by Dr. Fifer,
“along

with

[Plaintiff’s]

clinical

history,

suggest

that

the

process of testicular ischemia was one that, more likely than not,
slowly evolved over a period of many days and could not have been
either predicted or prevented by return to the operating room
several hours earlier,” as “the allegations in the case [suggest].”
(Id. at 8-9.)10

Even assuming that Plaintiff “suffered from abrupt

interruption of blood flow to the testicular from acute testicular
torsion (which is not the case) at some point between February 7
and February 21, . . . loss of the testicle generally occurs within
6 hours of the onset of symptoms.”

(Id. at 9.)

Thus, Dr. Kercher

maintains, any “delays in care during the afternoon and evening
hours of February 21, 2013,” did not cause Plaintiff’s testicle
10
Nevertheless, Dr. Kercher deems appropriate the
conservative treatment of ice, elevation, narcotic pain medication,
and anti-inflammatories that Dr. Isserlin recommended on February
19, 2013. (Id. at 7-8.)
22

loss.
Kercher

(Id.; accord Docket Entry 44-8, ¶¶ 3-5.)
believes

that,

“more

likely

than

not[,

In fact, Dr.
Plaintiff’s]

testicle was unsalvageable at least 48 hours before the February 22
surgery.”

(Docket Entry 44-6 at 7.)

Finally, as to P.A. Kurian’s 17:30 note, Dr. Kercher states:
Based upon the UNC Health Care medical records and
the testimony of [Defendant] ([a]ffidavit dated 4/19/17),
there is no indication that [Defendant] spoke with
providers at the Craven Correctional Facility 2/21/13,
nor was he aware of the results of the scrotal ultrasound
performed on that date. As would be standard practice,
the ultrasound findings of possible testicular torsion
and ischemia prompted two providers at UNC Health Care to
recommend emergent transfer of [Plaintiff] for further
urologic evaluation and management. In addition to the
clear documentation that appropriate recommendations were
made, it is not reasonable to believe that [Defendant]
would have made the recommendations alleged if he had
been informed that there was potentially no blood flow to
[Plaintiff’s] right testicle.
That is, testicular
torsion is a known surgical emergency and it is
unreasonable to believe that [Defendant] would have
simply recommended no further evaluation or treatment,
had he been aware of the ultrasound results.
It is
therefore my opinion that [Defendant] was not negligent,
“deliberately indifferent,” or wrongful in any way as
alleged by [Plaintiff].
(Id. at 6.)
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
23

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.
Technologies Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.
1996).
However, “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”

Anderson, 477 U.S. at 248.

Moreover,

may

“the

non-moving

party

not

rely

on

beliefs,

conjecture, speculation, or conclusory allegations to defeat a
motion for summary judgment.”

Lewis v. Eagleton, 4:08-cv-2800,

24

2010 WL 755636, at *5 (D.S.C. Feb. 26, 2010) (citing Barber v.
Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992)),
aff’d, 404 F. App’x 740 (4th Cir. 2010); see also Pronin v.
Johnson, 628 F. App’x 160, 161 (4th Cir. 2015) (explaining that
“[m]ere conclusory allegations and bare denials” or the nonmoving
party’s “self-serving allegations unsupported by any corroborating
evidence”

cannot

defeat

summary

judgment).

Finally,

factual

allegations in a complaint or court filing constitute evidence for
summary judgment purposes only if sworn or otherwise made under
penalty of perjury.

See Reeves v. Hubbard, No. 1:08cv721, 2011 WL

4499099, at *5 n.14 (M.D.N.C. Sept. 27, 2011), recommendation
adopted, slip op. (M.D.N.C. Nov. 21, 2011).
II.

Deliberate Indifference Standard

Courts evaluate pretrial detainees’ conditions of confinement
in state custody under the Due Process Clause of the Fourteenth
Amendment.

See Bell v. Wolfish, 441 U.S. 520, 535 (1979).

“The

due process rights of a pretrial detainee are at least as great as
the [E]ighth [A]mendment protections available to the convicted
prisoner.”

Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988).

In that regard, “when the State by the affirmative exercise of its
power so restrains an individual’s liberty that it renders him
unable to care for himself, and at the same time fails to provide
for his basic human needs — e.g., food, clothing, shelter, medical
care, and reasonable safety — it transgresses the substantive

25

limits on state action set by the Eighth Amendment and the Due
Process Clause.”

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,

489 U.S. 189, 200 (1989).
“Thus, deliberate indifference to the serious medical needs of
a pretrial detainee violates the [D]ue [P]rocess [C]lause.”

Young

v. City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001).
Historically, the United States Court of Appeals for the Fourth
Circuit has applied the same analysis to Section 1983 deliberate
indifference claims under the Fourteenth Amendment as under the
Eighth Amendment.
Plaintiff

must

See, e.g., id. at 575-77.
show

that

Defendant

Under that standard,

“acted

with

‘deliberate

indifference’ (subjective) to the inmate’s ‘serious medical needs’
(objective).”

Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)

(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).11
11
The United States Supreme Court recently held that an
objective standard of reasonableness applies to a pretrial
detainee’s excessive force claim under the Due Process Clause of
the Fourteenth Amendment. See Kingsley v. Hendrickson, __ U.S. __,
__, 135 S. Ct. 2466, 2470 (2015). This holding calls into question
whether an objective reasonableness standard applies to a pretrial
detainee’s claim that his medical treatment violated the Fourteenth
Amendment’s Due Process Clause. See, e.g., Darnell v. Pineiro, 849
F.3d 17, 30, 33, 35 (2d Cir. 2017) (concluding “that the Supreme
Court’s decision in Kingsley altered the standard for deliberate
indifference claims under the Due Process Clause,” overruling
decision applying subjective standard to medical deliberate
indifference claim, and holding that, in light of Kingsley, an
objective standard of deliberate indifference applies in due
process cases); see also Castro v. County of Los Angeles, 833 F.3d
1060, 1071 (9th Cir. 2016) (en banc) (concluding that, pursuant to
Kingsley, “a pretrial detainee who asserts a due process claim for
failure to protect [must] prove more than negligence but less than
subjective intent — something akin to reckless disregard”), cert.
denied, __ U.S. __, 137 S. Ct. 831 (2017). The Fourth Circuit has
26

A medical need qualifies as serious if it “has been diagnosed
by a physician as mandating treatment or . . . is so obvious that
even a lay person would easily recognize the necessity for a
doctor’s attention.”
defendant

Id. (internal quotation marks omitted).

displays deliberate

indifference

where

he

A

possesses

knowledge of the risk of harm to an inmate and knows that “his
actions were insufficient to mitigate the risk of harm to the
inmate arising from his medical needs.” Id. (emphasis and internal
quotation marks omitted); see also Scinto v. Stansberry, 841 F.3d
219, 225 (4th Cir. 2016) (“To prove deliberate indifference,
plaintiffs must show that ‘the official kn[ew] of and disregard[ed]
an excessive risk to inmate health or safety.’” (brackets in
original) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994))).
“[D]eliberate indifference entails something more than mere
negligence, . . . [but] is satisfied by something less than acts or
omissions for the very purpose of causing harm or with knowledge
not yet considered whether Kingsley extends to medical deliberate
indifference claims. See Mobley v. Guilford Cty. Sheriff’s Office,
No. 1:17cv115, 2017 WL 1409579, at *7 n.9 (M.D.N.C. Apr. 20, 2017),
recommendation adopted, slip op. (M.D.N.C. May 24, 2017). However,
the Court need not resolve whether an objective standard of
reasonableness applies to Plaintiff’s claim, for (as discussed
below) consideration of the subjective prong does not alter the
outcome of the Summary Judgment Motion. See, e.g., Nam Dang by &
through Vina Dang v. Sheriff, Seminole Cty. Florida, 871 F.3d 1272,
1279 n.2 (11th Cir. 2017) (declining to consider Kingsley’s
implications for deliberate indifference claim because, inter alia,
“regardless of whether Kingsley could be construed to have affected
the standard for pretrial detainees’ claims involving inadequate
medical treatment due to deliberate indifference, whatever any
resulting standard might be, it could not affect [the plaintiff’s]
case”).
27

that harm will result.”

Farmer, 511 U.S. at 835.

“It requires

that a [defendant] actually know of and disregard an objectively
serious condition, medical need, or risk of harm.”
F.3d at 525 (internal quotation marks omitted).

De’lonta, 708

A plaintiff can

satisfy this standard by showing “‘that a [defendant] knew of a
substantial risk from the very fact that the risk was obvious.’”
Scinto, 841 F.3d at 226 (quoting Makdessi v. Fields, 789 F.3d 126,
133 (4th Cir. 2015)).
A

plaintiff

can

also

establish

“a

prima

face

case

of

deliberate indifference” where “‘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.’”

Id. (brackets and ellipsis in original) (quoting Parrish ex

rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)).

In

addition, “‘[f]ailure to respond to an inmate’s known medical needs
raises an inference [of] deliberate indifference to those needs.’”
Id. (brackets in original) (quoting Miltier v. Beorn, 896 F.2d 848,
853 (4th Cir. 1990), overruled in part on other grounds by Farmer,
511 U.S. at 837).

Finally, “a significant delay in the treatment

of a serious medical condition may, in the proper circumstances,”
constitute deliberate indifference.

Webb v. Hamidullah, 281 F.

App’x 159, 166 (4th Cir. 2008). “A[ constitutional] violation only

28

occurs, however, if the delay results in some substantial harm to
the patient.

Thus, in order to defeat summary judgment on the

delay issue, [a plaintiff i]s obligated to establish that the delay
in his [treatment] caused him substantial harm . . . .”

Id. at

166-67 (footnote omitted); see also Wynn v. Mundo, 367 F. Supp. 2d
832, 838 (M.D.N.C.) (“[T]his court is persuaded that delay in the
receipt of medical care only constitutes deliberate indifference
where the plaintiff can show that the delay caused substantial
harm.”) (collecting cases), aff’d, 142 F. App’x 193 (4th Cir.
2005).
III.

Analysis

Defendant urges the grant of summary judgment in his favor on
three grounds.

(See Docket Entry 44 at 5.)

First, Defendant

contends that “Plaintiff cannot show that Defendant was aware of a
risk of serious harm to . . . Plaintiff when . . . Defendant was
allegedly consulted.”

(Id.)

Second, Defendant maintains that

“Plaintiff cannot show that Defendant controlled . . . Plaintiff’s
medical treatment (i.e. that he acted personally in the deprivation
of

Plaintiff’s

rights)

deliberate indifference.”

at

the

(Id.)

time

of

Defendant’s

alleged

Third, Defendant asserts that

“Plaintiff cannot show that he suffered any harm from the delay
allegedly caused by Defendant’s conduct.”

(Id.)

contention entitles him to summary judgment.

29

Only that third

A.

Subjective Awareness Contention

Defendant maintains that “Plaintiff has and can produce no
evidence showing that [Defendant] subjectively knew that Plaintiff
was in any danger on February 21, 2013.”

(Id. at 17.)

In

Defendant’s view, “[a]t most, and in the light most favorable to
. . . Plaintiff, Plaintiff’s evidence shows only that, perhaps, a
misunderstanding occurred.”

(Id. at 16.)

The Court should not

grant summary judgment based on that argument.
In

that

regard,

viewed

in

the

light

most

favorable

to

Plaintiff, evidence (in the form of P.A. Kurian’s notes) would
support a finding that, between 15:00 and 17:30 on February 21,
2013, P.A. Kurian informed Defendant of the absence of bloodflow to
Plaintiff’s testicle.

(See Docket Entry 44-2 at 1; Docket Entry

44-6 at 4.)12 Further, per its records, U.N.C.M.C. lacked knowledge
of this bloodflow problem prior to February 21, 2013.

(See Docket

Entry 44-1 at 9-10 (stating that, at the time of his second
surgery,

the

“[u]ltrasound

did

show

good

[blood]flow

to

the

testes”); Docket Entry 44-5 at 3 (noting that constrained bloodflow
“findings are new”); see also Docket Entry 44-4 at 1-2 (containing
no mention of bloodflow problems at appointment on February 19,

12 Substantial doubt exists as to the reliability of that
evidence. (See Docket Entry 44-10 at 14 (documenting P.A. Kurian’s
acknowledgment that he may not have spoken to Defendant on February
21, 2013).) At this juncture, however, the Court must view the
evidence in the light most favorable to Plaintiff. See Henry, 652
F.3d at 531.
30

2013).)

A

reasonable

factfinder

could

deem

“[t]he

inappropriateness of” a doctor counseling against further treatment
when informed of the onset of such bloodflow issues “obvious, and
[such a finding of] obviousness could support a factfinder’s
conclusion that” Defendant knew his proposed treatment plan “was
inadequate” to mitigate the risk to Plaintiff.

Heyer v. United

States Bureau of Prisons, 849 F.3d 202, 211-12 (4th Cir. 2017); see
also Farmer, 511 U.S. at 842 (“Whether a [defendant] had the
requisite knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including inference
from circumstantial evidence, and a factfinder may conclude that a
[defendant] knew of a substantial risk from the very fact that the
risk was obvious.” (emphasis added; citation omitted)).
Indeed, even Defendant acknowledges the obvious inadequacy of
the instructions attributed to him.

(See Docket Entry 44-3, ¶ 6

(“I would never advise a physician assistant that nothing should be
done in such a situation.”); see also Docket Entry 44-6 at 6
(setting
torsion

forth
is

a

Defendant’s
known

expert’s

surgical

opinion

emergency”

that

and

“testicular

concluding

that

recommendation of “no further evaluation or treatment” in response
to such a report represented such an unreasonable course of action
that Defendant must not have acted in that fashion).)
circumstances,

a

factfinder

reasonably

could

Under the

conclude

that

Defendant subjectively knew of (and disregarded) the substantial

31

risk of

harm

to

Plaintiff’s

health posed

testicular bloodflow on February 21, 2013.
211-12.

by

his

compromised

See Heyer, 849 F.3d at

The Court therefore should not grant summary judgment

based on Defendant’s subjective knowledge argument.
B.

Control Contention

Relying on the decisions in Parrish, 372 F.3d 294, and Pronin,
628 F. App’x 160, Defendant next seeks summary judgment on the
theory that “Defendant did not control Plaintiff’s medical care on
February 21, 2013” (id. at 15).

More specifically, Defendant

asserts that he “did not determine whether Plaintiff would be
transferred to an outside facility” on that date (id. at 14), as
C.P. medical personnel “were free to transfer . . . Plaintiff to an
outside emergency department whenever they chose to do so” and
“would have their own independent duty to transfer . . . Plaintiff
if necessary” (id. at 15).
To

begin,

proposition.

neither

This contention misses the mark.
cited

decision

supports

Defendant’s

In the first, four police officers “agreed . . . that

the use of [a spit] mask [on a pretrial detainee] was warranted,”
Parrish, 372 F.3d at 298, and subsequently “decided that [one
officer] should transport [the detainee] to the adult detention
center,” id. at 299.

The officers placed the detainee in the

transport van, where he vomited into the spit mask and suffered
fatal “‘aspiration and positional asphyxia’” while en route to the
detention center.

See id. at 300. The Fourth Circuit affirmed the

32

award of summary judgment to a fifth officer, who took no part in
the decision to use the spit mask, see id. at 298, and “had left
the police station” before “the officers decided to transport [the
detainee] to the Adult Detention Center,” which, the Fourth Circuit
noted, constituted “the decision that created the risk of harm to
[the detainee],” id. at 302 n.9.

Here, by contrast, when viewed in

the light most favorable to Plaintiff, the evidence would permit a
finding that “the decision that created the risk of harm to
[Plaintiff],” id., namely, to forego treatment for the lack of
testicular bloodflow on February 21, 2013, arose from Defendant’s
recommendation (see Docket Entry 44-2 at 1).
The second cited case involved an inmate’s claim that a
doctor’s “delay of more than a year” in prescribing epilepsy
medication,

which

“delay

[allegedly]

resulted

in

a

seizure,”

constituted deliberate indifference. Pronin, 628 F. App’x at 163.13
That inmate “was seen 44 times in 16 months for various medical
reasons” by multiple medical officials. See Pronin v. Johnson, No.
5:12-cv-3416, 2015 WL 1518380, at *7 (D.S.C. Mar. 31, 2015), aff’d
in part, vacated in part, and remanded, 628 F. App’x 160 (4th Cir.
2015). The relevant doctor (Dr. Blocker) apparently saw the inmate
on only two of those occasions, specifically on January 18, 2012,
13 “Pronin was treated for seizure-like symptoms on February
16, 2013, February 22, 2013, and March 26, 2013.”
Pronin v.
Johnson, No. 5:12-cv-3416, 2015 WL 1518380, at *7 (D.S.C. Mar. 31,
2015), aff’d in part, vacated in part, and remanded, 628 F. App’x
160 (4th Cir. 2015). The defendant prescribed epilepsy medication
on February 22, 2013. Id.
33

and February 22, 2013.

See id.

In affirming the grant of summary

judgment to Dr. Blocker, the Fourth Circuit stated:
It is undisputed that, when Pronin arrived at the
institution, he was not on any seizure medication, and he
gave conflicting accounts as to his seizure history.
Pronin submitted no evidence to support his allegations
that he suffered and complained of seizure-like activity
after his arrival at the institution and prior to his
alleged seizure in February 2013, and he presents only
conclusory statements and no details regarding his
alleged attempts to obtain medical treatment for his
seizure symptoms prior to this date.
Moreover, his
grievances and medical records do not support his
allegations, and while he requested seizure medication,
there is no evidence that he complained of seizure-like
activity prior to the actual seizure. Further, Pronin’s
assertions that he suffered grave injury from his seizure
are not supported by the record. Finally, Pronin does
not dispute Blocker’s statements that, for a substantial
portion of the time Pronin contends he was being
deliberately indifferent, Blocker was actually either on
medical leave or not the first line of medical treatment
for Pronin. Based on the foregoing, we find that Pronin
has failed to raise a material issue of fact as to
whether Blocker was deliberately indifferent to a serious
medical need.
Pronin, 628 F. App’x at 164.

Those considerations do not apply in

any comparable way in this case.
Ultimately, Defendant asserts that, because he lacked power to
force C.P. personnel to transfer Plaintiff to an outside hospital,
his alleged advice to C.P. personnel not to transfer Plaintiff to
an outside hospital for further treatment falls short of deliberate
indifference as a matter of law.

(See Docket Entry 44 at 12-15.)

However,

remains

the

relevant

question

not

whether

Defendant

possessed authority to compel C.P. personnel to transfer Plaintiff
for

surgical

intervention,

but
34

whether

Defendant’s

purported

directive against pursuing such treatment disregarded a substantial
risk of harm to Plaintiff. Accordingly, the Court should not grant
Defendant summary judgment on this ground.
C.

Substantial Harm Contention

Finally, Defendant seeks summary judgment due to the lack of
competent

evidence

Plaintiff.

(See

that

Docket

Defendant’s
Entry

44

at

alleged

conduct

9-12.)

In

harmed

particular,

Defendant maintains that, “even if Defendant had acted with some
culpability, which is denied, that culpability could have only
caused a 3 hour and 10 minute delay in Plaintiff’s transfer to the
hospital.” (Id. at 11.)14 Defendant further asserts that Plaintiff
failed to prove that this delay in treatment caused him substantial
harm, rendering summary judgment appropriate. (Id. at 12 (“Because
. . . Plaintiff has designated no experts and has no evidence to
show that the 3 hour and 10 minute delay resulted in substantial
harm, he cannot avoid summary judgment on this issue, and summary
judgment should be granted for Defendant.”).)
The Complaint asserts that Defendant displayed deliberate
indifference to Plaintiff’s “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

14 This three-hour-and-ten-minute figure represents the time
elapsed between P.A. Kurian’s 17:30 note on February 21, 2013, and
Dr. Bowen’s 20:40 note indicating that “the decision had been made
to transfer . . . Plaintiff for a urological evaluation.” (Id.)
35

and by counseling against tak[i]ng any preventative action to
prevent its loss.”

(Docket Entry 2 at 6.)

In other words,

Plaintiff claims that Defendant’s (1) failure to take action
regarding Plaintiff’s testicular bloodflow issue “when he first
knew of the lack of or decreased blood flow” (id.) and (2) his
recommendation against treatment on February 21, 2013, delayed
Plaintiff’s receipt of necessary medical care.
“[A] significant delay in the treatment of a serious medical
condition

may,

in

the

proper

circumstances,

indicate

a[

constitutional] violation.” Webb, 281 F. App’x at 166. Yet “delay
in

the

receipt

of

medical

care

only

constitutes

deliberate

indifference where the plaintiff can show that the delay caused
substantial harm.”

Wynn, 367 F. Supp. 2d at 838 (collecting

cases); see also Webb, 281 F. App’x 166-67 (“A[ constitutional]
violation only occurs, however, if the delay results in some
substantial harm to the patient.

Thus, in order to defeat summary

judgment on the delay issue, [the plaintiff] was obligated to
establish that the delay in his surgery caused him substantial harm
. . . .” (footnote omitted)); Martin, 849 F.2d at 871 (“There is no
suggestion that the delay in taking [a pretrial detainee] to the
hospital exacerbated his injuries in any way . . . .

Under these

circumstances, we conclude that the delay in taking [the pretrial
detainee] to the hospital, even if deliberate, did not amount to a

36

constitutional violation under the Estelle standard.”).

Plaintiff

has not raised a genuine factual dispute on this material point.
As an initial matter (and as shown by the review of the record
in

Section

II),

Plaintiff

produced

no

evidence

from

which a

factfinder could ascertain “when,” prior to the alleged call with
P.A. Kurian on February 21, 2013, Defendant “first knew of the lack
of or decreased [testicular] blood flow” (Docket Entry 2 at 6).
Therefore any finding that such delay caused Plaintiff harm “would
necessarily be based on speculation and conjecture,” rendering
summary judgment proper on this aspect of Plaintiff’s deliberate
indifference claim.

Matherly v. Andrews, 859 F.3d 264, 280 (4th

Cir.) (internal quotation marks omitted), cert. denied, __ U.S. __,
138 S. Ct. 399 (2017).
In
produced

regard

to

expert

the

delay

testimony

on February
that,

“more

21,

2013,

likely

Defendant

than

not[,

Plaintiff’s] testicle was unsalvageable at least 48 hours before
the February 22 surgery.”

(Docket Entry 44-6 at 7.)

Defendant’s

expert further opined that, “to a reasonable degree of medical
certainty . . . a 3 hour and 10 minute delay in [Plaintiff’s]
transfer to an outside hospital on February 21, 2013[,] had no
impact on [Plaintiff’s] outcome” and “would have caused no medical
harm to [Plaintiff].”

(Docket Entry 44-8, ¶¶ 4-5; see also Docket

Entry 44-6 at 8-9 (stating “that the process of testicular ischemia
was one that, more likely than not, slowly evolved over a period of

37

many days and could not have been either predicted or prevented by
return to the operating room several hours earlier”).) In response
to the Expert Report and Expert Affidavit (again, as documented in
Section II), Plaintiff produced no evidence of harm attributable to
any delay in treatment on February 21, 2013.

Instead, he asserts

that “[t]he degree of medical certainty of this matter is an issue
for a jury to decide.”
evidence

showing

(Docket Entry 54 at 4.)

substantial

harm

from

the

In the absence of
alleged

delay

on

February 21, 2013, however, Plaintiff’s deliberate indifference
claim fails as a matter of law.

See, e.g., Webb, 281 F. App’x at

167 (affirming summary judgment award where the plaintiff failed to
prove substantial harm from the alleged “improper delay”); Lewis,
2010 WL 755636, at *8-9 (granting summary judgment on Section 1983
“medical

indifference”

claim

where

“[t]here

is

no

competent

evidence in the record to show the delay. . . caused any harm”);
Wynn, 367 F. Supp. 2d at 838-39 (awarding summary judgment to the
defendants where the record showed “the delay . . . [was] the cause
of no substantial harm”).15
15
In his Response and Reply, Plaintiff attempts to
recalibrate his deliberate indifference claim, contending that
Defendant’s treatment of Plaintiff throughout January 2013 and
February 2013 amounted to deliberate indifference.
(See Docket
Entries 52, 54.) In particular, Plaintiff points to Defendant’s
“‘conservative approach’ method of treatment” (Docket Entry 52 at
11) and his decision to allow Dr. Isserlin to treat Plaintiff on
February 19, 2013 (see id. at 5-6; Docket Entry 54 at 2-3).
Plaintiff’s effort in this regard cannot stave off summary
judgment. Most fundamentally, the allegations in the Response and
Reply do not constitute proper evidence for summary judgment
purposes, as Plaintiff did not make them under oath or penalty of
38

Accordingly,

the

Court

should

grant

Defendant

summary

judgment.
CONCLUSION
Defendant has shown entitlement to judgment as a matter of
law.
IT IS THEREFORE RECOMMENDED that the Summary Judgment Motion
(Docket Entry 43) be granted.
This 7th day of February, 2018.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

perjury (see Docket Entry 52 at 15; Docket Entry 54 at 5). See
Reeves, 2011 WL 4499099, at *5 n.14. Additionally, many of the
allegations upon which Plaintiff relies qualify as speculative
and/or conclusory. (See, e.g., Docket Entry 52 at 5 (asserting,
regarding the second surgery, that “Plaintiff can only assume he
was misled at [D]efendants instructions”), 6 (“Plaintiff would
assert that if a further and proper exam was performed by
[Defendant on February 19, 2013,] then the dense inflamitory [sic]
rind surrounding Plaintiffs testicle with compressive effect could
have been taken care of and he might still have his right
testicle.”).) As such, they cannot defeat summary judgment. See,
e.g., Matherly, 859 F.3d at 279-80.
39