HARRIS v. POOLE et al
Filing
56
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 02/03/2020, that the Doctor's Motion (Docket Entry 43 ) and the Prison Defendants' Motion (Docket Entry 47 ) be granted.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DERWIN GERRARD HARRIS,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
KATY POOLE, et al.,
Defendants.
1:18cv378
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge for a recommendation on the “Motion for Summary
Judgment of Defendant Bikramjit Grewal, MD” (Docket Entry 43)1 (the
“Doctor’s Motion”) and the “Motion for Summary Judgment” (Docket
Entry
47)
Covington,
(the
Katy
“Prison
Defendants’
Poole,
Beverly
Motion”)
Stubbs,
(collectively, the “Prison Defendants”).
filed
and
by
Carol
Ronald
Torres
For the reasons that
follow, the Court should grant the Doctor’s Motion and the Prison
Defendants’ Motion (collectively, the “Motions”).
BACKGROUND
I.
Procedural History
Pursuant to 42 U.S.C. § 1983, Derwin Gerrard Harris (the
“Plaintiff”) commenced this action against Prison Defendants and
1
For legibility reasons, this Opinion uses standardized
capitalization and spelling in all quotations from the parties’
materials.
Bikramjit Grewal, MD (“Dr. Grewal,” and collectively with Prison
Defendants, the “Defendants”) for acts and/or omissions amounting
to deliberate indifference to Plaintiff’s serious medical needs
during
Plaintiff’s
Institution
(the
incarceration
“Scotland
“Complaint”) at 1-4.)2
at
C.I.”).
Scotland
(Docket
Correctional
Entry
2
(the
Dr. Grewal initially moved to dismiss the
Complaint “pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure” and “Rule 9(j) of the North Carolina Rules of Civil
(Docket Entry 21 at 1.)3
Procedure.”
favorable
to
Plaintiff
with
the
“[V]iewed in the light most
benefit
of
all
reasonable
inferences,” though, “the Complaint’s allegations plausibly support
a deliberate indifference claim, because they would permit a
finding
that
D[r.]
Grewal
‘ignored
[Plaintiff’s
symptoms],
disregarded abnormal test results, and failed to treat any of [his]
symptoms.’”
(Docket Entry 36 at 7 (final two sets of brackets in
original).)
Accordingly, the undersigned recommended that the
Court deny Dr. Grewal’s “request for dismissal of Plaintiff’s
Section 1983 claim for deliberate indifference” (id. at 8).
(See
id. at 7-8.)
2 Citations herein to Docket Entry pages utilize the CM/ECF
footer’s pagination.
3
Plaintiff submitted a sworn opposition to Dr. Grewal’s
dismissal motion. (See Docket Entry 27 at 6.)
2
“[H]owever, to the extent Plaintiff’s Complaint [purports4] to
state a claim against D[r.] Grewal for medical malpractice, that
claim fail[ed] due to the absence of a certification compliant with
Rule 9(j) or factual allegations sufficient to invoke the res ipsa
loquitur doctrine.”
(Id.
at
9.)
The
undersigned
therefore
recommended that the Court “dismiss any medical malpractice claim
against D[r.] Grewal in the Complaint.”
(Id. at 11.)
The Court
(per United States District Judge Catherine C. Eagles) adopted both
of
these
recommended
(permitting
rulings.
“Plaintiff’s
(See
§ 1983
Docket
deliberate
Entry
51
indifference
at
1
claim
against D[r.] Grewal [to] proceed,” but dismissing “any state-law
medical
malpractice
claim
or
other
claims
asserted
in
the
[C]omplaint against D[r.] Grewal”).)
During the pendency of Dr. Grewal’s dismissal motion, the
parties commenced and completed discovery. (See Docket Entry dated
Oct. 10, 2018 (establishing discovery schedule).)
of discovery, Defendants filed the Motions.
43, 47.)
Following close
(See Docket Entries
Plaintiff filed a response in opposition to the Prison
Defendants’ Motion (see Docket Entry 50), but not to the Doctor’s
Motion (see Docket Entries dated May 9, 2019, to present).
II.
Factual History
As relevant to the Motions, the record reflects the following:
4 “Some question exists as to whether Plaintiff intended the
Complaint to include a medical malpractice claim . . . .” (Id. at
8-9.)
3
A.
Plaintiff’s Allegations
In his unverified Complaint, Plaintiff alleges that:
In August 2016, Plaintiff slipped on the sidewalk at Scotland
C.I., hyperextending his right leg.
(Docket Entry 2 at 3.)
“Days
later[, Plaintiff] put in a sick-call requesting to see a doctor
acknowledging leg injury as serious.”
(Id.)
“Over the next 8
months of not receiving adequate medical attention on several
different occasions[, Plaintiff] spoke with Captain Covington as
well as Captain Tor[res] seeking medical attention acknowledging
them both [that Plaintiff] was dealing with excruciating pain with
their response being ‘put in an emergency sick-call’ or ‘they
couldn’t override medical.’”
(Id.)
In January 2017, Plaintiff
wrote to Katy Poole, informing “her of the numerous complaints
[that Plaintiff] had filed concerning [his] injury through the
inmate grievance procedure, sick-calls, as well as ‘emergency’
sick-calls . . . Only to receive no response.”
(Id. (ellipsis in
original).)
Around 1 a.m. on January 12, 2017, “in intolerable pain[,
Plaintiff] declared an emergency sick-call . . . and was seen in
medical by Ms. Stubbs,” who “was extremely rude and hostile while
discussing [Plaintiff’s] injury.”
injury[,
Plaintiff]
acknowledged
(Id.)
Ms.
“While discussing [his]
Stubbs
[that]
cool
air
aggravates [his] leg[, but] she prescribed [him] ice for 72 hours.”
(Id.)
Plaintiff also requested crutches, stating that he “was
4
experiencing severe pain with every step[, but] she denied [that
request].”
(Id.)
“She didn’t perform an adequate examination on
[Plaintiff’s] leg, and she charged [him] twice.”
(Id.)
In April 2017, Plaintiff “finally received an M.R.I. . . . and
was taken to Central Prison on [June 23, 2017,] to receive the
results.”
(Id.)
Dr. Grewal saw Plaintiff on this occasion,
reviewing Plaintiff’s M.R.I. and informing him that there “was no
damage
shown
and
no
further
[Plaintiff’s] leg was needed.”
medical
(Id.)
attention
pertaining
to
“[Four] months later still
dealing with the same pain[, Plaintiff] put in a sick-call at
Whiteville Correctional[5 (“Whiteville C.I.”)] where [he] was later
seen by [a] doctor who reviewed [the] M.R.I. and [told Plaintiff
that the] M.R.I. showed abnormal swelling which alone show [sic]
signs of an injury.”
(Id.)
That doctor “couldn’t understand why
[Plaintiff] hadn’t received further medical attention.”
(Id.)
Plaintiff immediately submitted a grievance, and Whiteville C.I.
conducted its own investigation, deciding “to get [Plaintiff] to an
orthopedic immediately” (id. at 4).
(See id. at 3-4.)6
Since
5 By “Whiteville Correctional,” Plaintiff apparently means
“Columbus Correctional Institution,” located in Whiteville, North
Carolina, see, e.g., Columbus Correctional Institution, North
Carolina
Department
of
Public
Safety,
available
at
https://www.ncdps.gov/Adult-Corrections/Prisons/Prison-Facilities
/Columbus-Correctional-Institution (last accessed Feb. 3, 2020).
(See also, e.g., Docket Entry 44-1 at 64-65 (containing relevant
medical records, identifying facility as “COLU”).)
6 This investigation apparently occurred on or about November
(continued...)
5
then, Plaintiff has “been receiving adequate medical attention.”
(Id. at 4.)
B.
Evidence Regarding Dr. Grewal
The evidence that Dr. Grewal submitted in support of his
summary judgment request reflects the following:
Dr. Grewal served as an Orthopedic Surgeon in the Department
of Orthopaedics at the University of North Carolina School of
Medicine in June 2017.
(Docket Entry 44-2, ¶ 3.)
In this role, he
occasionally saw patients at the Orthopaedic Clinic at Central
Prison.
(Id., ¶ 5.)
involvement
in
However, he possessed no authority or
determining
which
inmates
received
either
appointments at this clinic or any “MRIs,” physical therapy,
surgery, x-rays, “or any other type of medical intervention.”
(Id.) “The way that [he] understand[s] the process is that inmates
are referred to the Orthopaedic Clinic through the health care
providers who treat the inmates in their prisons for general health
concerns in the capacity of a primary care provider.”
(Id.)
The only time Dr. Grewal saw, examined, or treated “Plaintiff
as a patient was on June 23, 2017 in the Orthopaedic Clinic at
Central Prison.
[Dr. Grewal] ha[s] had no other involvement in
Plaintiff’s care, and ha[s] never been requested to have any
6(...continued)
7, 2017. (See id. at 2 (stating that Plaintiff filed a grievance
on “11/07/2017,” in response to which “Whiteville C[.I.] did an
investigation [and Plaintiff has] since then been receiving
adequate medical attention”).)
6
further involvement in Plaintiff’s care.”
(Id., ¶ 6.)
Dr. Grewal treated Plaintiff in June 2017,
he had already undergone an MRI study of his right knee.
Plaintiff’s MRI showed edema in the pre-femoral and
infrapatellar fat pads, which the radiologist interpreted
as likely being due to impingement. This simply means
that the Plaintiff had some swelling in the fatty cushion
inside the knee. This is a very non-specific finding,
and can result from a variety of potential causes
including overuse (excessive running for example), trauma
(even very slight trauma such as bumping into an object),
poor walking/running form, or overextension (from
slipping while on one’s feet for example). It is not
possible to prescribe treatment based solely on an MRI
finding of fat pad edema because it is so non-specific.
In fact, it is very possible for a patient to have MRI
findings of fat pad edema and to have no symptoms from it
at all. It is also possible to have the same findings on
an MRI that Plaintiff had and to have knee pain symptoms
from a cause that is not related to the MRI findings.
The findings on Plaintiff’s MRI are not anything that
would indicate surgery or any other invasive treatment.
When [Dr. Grewal] examined [] Plaintiff on June 23,
2017, his symptoms were consistent with iliotibial (“IT”)
band disorder, and the proper treatment for that disorder
is physical therapy, which [Dr. Grewal] prescribed.
Medically, when [Dr. Grewal] evaluated [] Plaintiff, he
was not a candidate for surgery because at that point
[Dr. Grewal] did not believe that [] Plaintiff would
benefit from surgery, and because surgery would not have
been an appropriate first step in the treatment process
of Plaintiff’s symptoms.
During [their] appointment,
[Dr. Grewal] prescribed physical therapy for Plaintiff,
and [Dr. Grewal] explained to him that [Dr. Grewal] was
prescribing physical therapy.
[Dr. Grewal] submitted
[his] recommendation for physical therapy to the prison
review process, and even did so under the “rush” category
to be evaluated by prison officials within 7 days.
[Dr. Grewal] told [] Plaintiff to participate in physical
therapy and to follow up with the Orthopaedic Clinic as
needed.
After [Dr. Grewal] prescribed physical therapy for
[] Plaintiff, the process of approving and implementing
that physical therapy request was entirely outside of
7
When
[Dr. Grewal’s] control. [Dr. Grewal] ha[s] never had and
do[es] not have the authority or ability to schedule an
inmate for physical therapy or otherwise enroll an inmate
in physical therapy.
Similarly, [Dr. Grewal] cannot
obligate or compel prison officials to transport an
inmate to physical therapy.
The way in which
[Dr. Grewal] can make a recommendation for an inmate to
undergo physical therapy is by doing precisely what
[Dr. Grewal] did for [] Plaintiff on June 23, 2017 —
submitting that request to prison officials through the
computerized medical records program.
[Dr. Grewal’s] understanding of how the process
works once [Dr. Grewal] prescribe[s] a treatment for an
inmate is that the treatment request must be approved by
prison officials by way of a Utilization Review process.
[Dr. Grewal] ha[s] no involvement with the Utilization
Review process.
[Dr. Grewal] ha[s] no authority or
control over anyone involved in the Utilization Review
process or over anyone with any control over whether
[Dr. Grewal’s] treatment recommendation for an inmate is
approved or implemented.
(Id., ¶¶ 7-10 (internal numbering omitted).)
In connection with that process, the “Health Services Policy
&
Procedure
Manual”
(the
“Manual”)
for
the
North
Carolina
Department of Public Safety (the “DPS”) contains a “Utilization
Management
Section
[that]
is
designed
to
evaluate
the
appropriateness and medical necessity of services provided to
[inmates].”
(Docket Entry 44-3 at 1 (emphasis omitted).)
Under
its “Utilization Review (UR) Plan” (id. (emphasis omitted)), “[a]ll
diagnostic/therapeutic procedures not being done by a Prisons
primary
care
provider”
require
“[s]cheduled inpatient admissions.”
preauthorization,
(Id. at 2-3.)
as
do
all
“A Utilization
Review Request (UR) must be submitted by the facility providers for
any service that requires precertification or prior authorization.”
8
(Id. at 6.) The DPS Primary Care Provider bears responsibility for
“[c]oordinating all medically necessary services for inmates at the
assigned
institution”
and
“[r]equesting
Specialty
.
.
.
consultations, diagnostic and therapeutic procedures as medically
appropriate.”
Care
(Id. at 8.)
Providers
should
The Manual further notes that “Primary
be
aware
that
not
every
specialist
recommendation is necessarily appropriate. . . . After consultants
offer
opinions
providers
and
are
treatment
recommendations,
responsible
findings/recommendations
for
and
Primary
reviewing
making
consultant
decisions
implementation of the treatment recommendations.”
Care
regarding
(Id.)
Once the
DPS Primary Care Provider submits a “UR request[,]” a “UM Nurse,”
“UM
Physician
Reviewer,”
and/or
“UM
Medical
Director
(Deputy
Medical Director)” will review and determine whether to grant or
deny the UR request.
(Id. at 7.)
Dr. Grewal further averred that:
Based on [his] review of [Plaintiff’s medical
records] obtained in discovery . . . in this matter, it
appears
that
Plaintiff’s
prison
physician,
Dr.
Locklear-Jones,
submitted
a
request
to
the
Utilization Review committee for physical therapy on June
23, 2017, the same day that [Dr. Grewal] prescribed
physical therapy for Plaintiff. By [Dr. Grewal’s] review
of [(Docket Entry 44-1 at 2)], the Utilization Review
physician, Dr. Jackson, denied the request for physical
therapy on July 10, 2017.
[Dr. Grewal] had no
involvement with or input into this process, other than
recommending that Plaintiff undergo physical therapy, and
recommending that this be done with a “rush” priority.
[Dr. Grewal] was never contacted regarding this
Utilization Review process.
9
If an inmate does not see improvement with a
prescribed treatment, the inmate would need to follow up
with health care providers at his prison facility, who
would then make a determination of whether or not to send
the inmate to a consultation with a specialist, such as
the Orthopaedic Clinic at Central Prison.
[Dr. Grewal] ha[s] had no involvement in approving
or denying any request from inmates regarding medical
care. [Dr. Grewal] ha[s] never had authority to approve
or deny an inmate’s request for medical care.
When [Dr. Grewal] examined [] Plaintiff, the
symptoms that he reported to [Dr. Grewal] and the results
of [Dr. Grewal’s] physical examination of [Plaintiff]
were not consistent with referred leg pain from a pinched
nerve in the lumber/lower back area of the spine.
There is no such thing as a “scabbed nerve,” and it
is not medically possible for a patient’s delay in
obtaining physical therapy to result in a nerve
developing a scab.
(Docket Entry 44-2, ¶¶ 11-15 (internal numbering omitted).)
Plaintiff’s
medical
records
from
his
appointment
with
Dr. Grewal on June 23, 2017, reflect that, beginning at 8:37 a.m.,
Dr. Grewal conducted an examination of Plaintiff, diagnosing him
with chronic pain in the right knee.
(Docket Entry 44-1 at 98.)
Based on this assessment, Dr. Grewal made a “New Consultation
Request[]” for “Physical Therapy” with “Rush” priority.
(emphasis omitted).)
(Id.
In support of this request, Dr. Grewal
explained that Plaintiff “[n]eeds to undergo physical therapy for
stretching his [right leg] particularly hamstrings/ITB and core
strengthening along with lower back.”
(Id.)
In describing the
proposed treatment plan, Dr. Grewal further noted:
with tight hamstrings.
“ITB syndrome
Recommended P[hysical ]T[herapy].
10
[Follow
up] as needed.
Do activities as tolerated.”
(Id.)
Finally, the
records indicate that Dr. Grewal counseled Plaintiff on this plan
of care, as to which Plaintiff “[v]erbalize[d his u]nderstanding.”
(Id.)
Dr. Grewal completed his report of Plaintiff’s appointment
at 8:53 a.m. on June 23, 2017.
A
few
hours
later,
at
(See id. at 98-99.)
11:09
a.m.,
medical
providers
at
Scotland C.I. submitted a rush Utilization Review Request for a “PT
Evaluation,” explaining that Plaintiff “needs to undergo physical
therapy for stretching his [right leg] particularly hamstrings/ITB
and core strengthening along with lower back.”
(Id. at 2.)
On
July 10, 2017, Dr. Rosemary Jackson “deferred” that request, on the
basis
that
the
“guidelines
[were]
not
met.”
(Id.)
Per
Dr. Jackson, the appropriate course remained to “review home
exercises and monitor for now[ because Plaintiff] is activity Grade
1 without any functional limitations and currently does not have
any official duties that should exacerbate [his condition].” (Id.)
At a medical appointment at Whiteville C.I. on August 16,
2017, Plaintiff again complained about “pain and swelling behind
[his]
right
knee,”
explaining
that
he
sch[eduled] for P[hysical ]T[herapy].”
“thought
he
(Id. at 66.)
would
be
At that
appointment, per his medical records, Plaintiff experienced slight
swelling behind his right knee, as well as increased pain with
extension and weight bearing.
(Id. at 67.)
At an appointment on
October 23, 2017, a doctor noted that, following injury of his
11
right knee earlier in the year, Plaintiff “[h]ad a[n] MRI done of
his right knee[, which] showed edema of the pre-femoral and infrapatella fat pads possibly secondary to impingement. [Plaintiff was
s]till having minor swelling, discomfort with prolonged standing
and unable to achieve full extension.”
(Id. at 64.)
That doctor
submitted a UR request for an orthopedic referral and scheduled a
follow-up appointment for November 6, 2017.
(See id. at 65.)7
Plaintiff’s medical records reflect that, by at least January 11,
2018, he had commenced physical therapy.
Finally,
Plaintiff’s
sworn
(See id. at 63.)
opposition
to
Dr.
Grewal’s
dismissal motion reflects the following:
In August of 2016[, Plaintiff] submitted [his] first
sick-call pertaining to a serious leg injury. After many
months of pain and suffering due to Katy Poole, et al
negligen[ce,] on 04/26/17[, Plaintiff] was transferred to
Central Prison for an M.R.I. On 06/23/17[, Plaintiff]
was seen by [Dr.] Grewal to receive the results of [his]
M.R.I. and during this appointment [Dr.] Grewal
acknowledged the M.R.I. showed no signs of any damage and
that no further medical attention would be necessary. 3
months
after
[Plaintiff’s]
appointment
with
[Dr.] Grewal[, Plaintiff] felt as [his] leg was getting
wors[e] and there was visible swelling so [he] submitted
a sick-call pertaining to ongoing leg injury and was then
seen by the provider at Whiteville C[.I.]. During this
sick-call visit the provider pulled up the same M.R.I[.
that Dr.] Grewal had access to and was puzzled to why
[Plaintiff] had not received medical attention beyond the
M.R.I[.;] he acknowledged the swelling alone showed sign
of a[n] injury.
Whiteville C[.I.] provider made
7
Notwithstanding Plaintiff’s June 2017 appointment with
Dr. Grewal, that doctor also noted on Plaintiff’s medical records
that Plaintiff “[w]as approved for Orthopedic evaluation 4/17 but
never did see the Orthopedist. . . . Needs f[ollow-up] with
Orthopedist — as was approved earlier in the year.” (Id.)
12
[Plaintiff] an appointment with an orthopedic immediately
upon reviewing [Plaintiff’s] M.R.I[.] shortly after
[Plaintiff]
attended
[his]
first
appointment
at
OrthoCarolina. During one of [Plaintiff’s] many visits
at OrthoCarolina[,] the Orthopedic viewed the M.R.I[.]
that was taken 04/26/17[,] and was also puzzled to why
[Plaintiff] had not received any medical attention beyond
the M.R.I. and requested [that Plaintiff] start physical
therapy immediately. During one of [Plaintiff’s] many
physical therapy sessions the therapist acknowledged that
the pain [he had] been enduring to [his] leg was coming
from a once pinched nerve in [Plaintiff’s] lower back
that ha[d] formed into a scabbed nerve due to the delay
in medical treatment. After viewing comments, notes, etc
from physical therapy sessions [Plaintiff’s] orthopedic
diagnosed [him] with a scabbed nerve in [his] lower back.
(Docket Entry 27 at 3-4.)
C.
Evidence Regarding Prison Defendants
In addition to the foregoing, Katy Poole (“Poole”), Carol
Torres
(“Torres”),
and
Beverly
Stubbs
(“Stubbs”)
submitted
affidavits and medical records in support of their summary judgment
request (see Docket Entries 48-1 to 48-4), and Plaintiff submitted
a sworn opposition thereto (see Docket Entry 50 (“the Opposition”)
at 2, 9).
According to the various Prison Defendants’ affidavits:
In January 2017, Poole served as the Correctional Facility
Administrator of Scotland C.I., a role she maintained through at
least May 2019.
(See Docket Entry 48-1, ¶ 3.)
Although she
understood that Plaintiff alleged “that in January of 2017, he sent
[her] a letter in which he informed [her] of numerous complaints he
lodged
concerning
his
injury
through
the
inmate
grievance
procedure, sick-calls, and emergency sick calls” (id., ¶ 5), Poole
“ha[d]
no
recollection
of
receiving
13
any
such
letter
from
[Plaintiff] in January 2017” (id., ¶ 8).
Moreover, she “ha[d] no
recollection of being made aware of any grievances, sick-calls, or
emergency sick-calls concerning [Plaintiff’s] complaints related to
his leg injury.”
(Id., ¶ 9.)
Rather, she “only first became aware
of [Plaintiff’s] complaints related to his leg injury when [she]
received notice of this lawsuit.”
(Id., ¶ 10.)
As Correctional
Facility Administrator, Poole does not participate in decisions
regarding whether, when, or what type of medical care “is provided
to an [inmate]” (id., ¶ 11).
“do[es]
not
supervise
staff
(See id., ¶¶ 11-13.)
who
perform
health
Moreover, she
service
for
[inmates], such as nurses, or physicians that contract with the
[DPS]” (id., ¶ 14), and she does not review sick-call requests or
emergency sick-call requests (see id., ¶ 18).8
She similarly lacks
“involvement in the Utilization Review process, including, the
denial
or
approval
of
Utilization
Review
requests,
or
scheduling of any approved Utilization Review requests.”
the
(Id.,
¶ 19.)
Scotland
C.I.
Correctional
Captains
likewise
do
not
participate in decisions regarding whether, when, or what type of
medical care “is provided to an [inmate]” (id. ¶ 21).
¶¶ 21-23; Docket Entry 48-2, ¶¶ 8-10.)
(See id.,
They also do not review
8 When admitted to Scotland C.I., inmates “are instructed
that if they believe they are in need of medical attention” (id.,
¶ 16) or emergency medical attention, they should submit a sickcall or emergency sick-call request, respectively, for a medical
evaluation. (See id., ¶¶ 16-17.)
14
sick-call or emergency sick-call requests, and they perform no role
in the “Utilization Review process, including, the denial or
approval of Utilization Review requests, or the scheduling of any
approved Utilization Review requests” (Docket Entry 48-1, ¶ 25).
(See
id.,
¶
24;
Docket
Entry
48-2,
¶¶
14-15.)
Finally,
Correctional Captains at Scotland C.I. “do not supervise staff who
perform health service for [inmates], such as nurses, or physicians
that contract with the [DPS].”
(Docket Entry 48-1, ¶ 26; accord
Docket Entry 48-2, ¶ 11.)
Ronald
Covington
(“Covington”)
and
Torres
served
as
Correctional Captains at Scotland C.I. in January 2017, through at
least May 2019.
¶ 3.)
(See Docket Entry 48-1, ¶ 27; Docket Entry 48-2,
Torres reported “no recollection of having conversations
with [Plaintiff] about him seeking medical attention for his leg
pain.”
(Docket
Entry
48-2,
¶
5.)
Torres
“also
ha[d]
no
recollection of informing [Plaintiff] to put in an emergency
sick-call request[] or that [Torres] could not override decisions
of medical staff.”
(Id., ¶ 6.)
Instead, Torres “only first became
aware of [Plaintiff’s] complaints related to his leg injury when
[Torres] received notice of this lawsuit.”
Finally,
through
at
least
May
(Id., ¶ 7.)
2019,
Stubbs
maintained
employment at DPS “as a Nurse Supervisor at Scotland [C.I.],” a
position she held in January 2017.
(Docket Entry 48-3, ¶ 3.)
In
that position, she “ha[d] no involvement in the Utilization Review
15
process, including, the denial or approval of Utilization Review
requests, or the scheduling of any approved Utilization Review
requests.”
(Id., ¶ 21.)
She also supervised neither “physicians,
whether they [we]re employed by or contract[ed] with [DPS]” (id.,
¶ 22), nor “correctional custody staff, such as Correctional
Captains, or the Correctional Facility Administrator” (id., ¶ 23).
On January 12, 2017, Stubbs conducted an “examination” of
Plaintiff, which she described as “thorough and complete,” as well
as
“based
upon
complaints.”
his
clinical
presentation
(Id., ¶ 20; see also id., ¶ 10.)
and
subjective
Plaintiff’s “chief
complaint was of extreme pain in his right knee, reportedly since
August 2016.”
(Id., ¶ 9.)
Stubbs concluded that Plaintiff “had
impaired comfort due to his right knee pain” (id., ¶ 11) and
provided him “over-the-counter anti-inflammatory medication for
five days” (id., ¶ 12).
Stubbs further instructed Plaintiff “to
ice the affected area in 20 minute intervals for the first 24
hours” (id., ¶ 13)9 and “to rest, compress, and elevate the
affected area” (id., ¶ 14).
Stubbs also informed Plaintiff “that
his request for a consult with an orthopedic specialist was pending
review and approval.” (Id., ¶ 15.) Because Plaintiff “was walking
with a normal gait and bearing his full weight,” Stubbs determined
that “crutches were not indicated.”
(Id., ¶ 18.)
The decision not
9 Stubbs specifically denied ordering Plaintiff “to apply ice
to his leg for 72 hours.” (Id., ¶ 17.)
16
to provide “crutches was based upon [her] years of training and
experience
as
a
nursing
professional,
assessment of [Plaintiff].”
(Id., ¶ 19.)
and
[her]
objective
Finally, “[a]t no time
during [her] clinical encounter with [Plaintiff] on January 12,
2017, was [Stubbs] rude or hostile with regard to his reported
injuries, or otherwise.”
(Id., ¶ 16.)
The medical records from Plaintiff’s appointment on January
12, 2017, reflect that Plaintiff appeared well, without distress,
pain, or visible injury.
(Docket Entry 48-4 at 2.)
They further
reveal that Plaintiff walked with a normal gait and that his knee
displayed a normal active range of motion, without any joint
deformity, warmth, swelling, tenderness, or trauma.
(Id.)
The
records also indicate that, although Plaintiff experienced “Pain on
Palpation of Effected Area,” his knee appeared “Weight Bearing”
without any deformity or loss of function. (Id.) Accordingly, the
records note the following plan of care:
take two tablets of
200 mg ibuprofen three times a day as needed for five days and,
“Per [the] Non-Urgent Protocol for joint trauma:
RICE:
Rest Ice
Compress Elevate . . . Apply ice for [first twenty-four hours] at
20 minute intervals [three times a day and] ACE Wrap [for] 1-2
weeks,” taking
the
“next
available
sick
call
per
policy
for
recheck.” (Id. at 2-3.) Finally, the records indicate that Stubbs
conveyed this plan of care to Plaintiff, who “[v]erbalize[d his
u]nderstanding.”
(Id. at 3.)
17
Additionally, Plaintiff’s Opposition contains a “Statement of
Facts” which reflects, in pertinent part:
Poole[’s] not recalling Plaintiff’s complaints related to
his leg injury does not mean those direct complaints
didn’t happen through the written letter, sick-calls, or
the grievance procedure. Even if the [C]ourt disregards
the
sick-calls
or
the
letter
due
to
facility
administrators not reviewing sick calls or there being no
substantial evidence of the written letter[,] a facility
administrator should be aware of grievances submitted by
inmates pertaining to serious medical needs as well as
other serious matters especially when there are numerous
grievances submitted involving such matters.
The
numerous grievances (emergency grievance included)
[Plaintiff] submitted pertaining to [his] injury seeking
medical treatment while being housed at Scotland [C.I.,]
which is administrated by Defendant Poole[,] are on file
and speak for themselves as substantial facts.[10]
. . . [Plaintiff] was a victim of unnecessary and wanton
infliction of pain and repeatedly made this aware to
[Poole,
Covington,
and
Torres
(the
“Custodial
Defendants”)] that the medical staff at the facility was
not giving [him] adequate medical attention to help [him]
and acknowledged [his] injury was getting wors[e]
daily[,] eventually resulting in difficulty getting out
[of] bed.
Defendants Covington and Torres[,] both
Captains at Scotland [C.I.,] acknowledged [Plaintiff
that] they couldn’t override medical by sending [him] to
the hospital, [and] Defendant Poole [Plaintiff] never
received a response from. [Prison Defendants’ summary
judgment evidence] states at Scotland [C.I. inmates] are
informed if they believe they need medical attention then
they should put in a medical sick-call request for an
appointment, and if they believe the need to [be] an
emergency they can put in a medical emergency sick-call
request. As on file in [Plaintiff’s] medical records[,
he] followed through with both procedures numerous of
times while seeking medical treatment only to be charged
each time and be seen by nurses who didn’t give physical
examinations, couldn’t give diagnosis and w[ere] not in
the presence of a doctor qualified to inquire into
10
Court.
Such grievances do not appear in the record before the
18
essential facts that are necessary to make a professional
judgment. Every time [Plaintiff] attended a sick-call
appointment[, he] made it [known that he] needed the
attention of a qualified [doctor] who give[s] diagnosis
and was denied each time. [Plaintiff] acknowledged each
defendants [sic] of these encounters.
In addition it states Defendant Stubbs performed a
thorough and complete “assessment” of Plaintiff January
12th 2017 not an examination but an assessment.
[Plaintiff] declared an emergency sick-call at 1:30AM due
to being in excruciating pain in result [he] didn’t
receive an examination only an assessment. For someone
to declare an emergency sick-call in the middle of the
night show[s that] the[y are] in need of medical
attention beyond a[n] assessment. During this emergency
sick-call appointment Defendant Stubbs listed [his]
exacerbating factor: Cool air but [she] still prescribed
[him] ice which in result increased [his] pain. She was
hostile and rude [his] entire visit with her, denied
[him] crutches claiming [he] was walking normal bearing
[his] full weight. If Defendant Stubbs would have d[one]
a thorough examination she would have noticed the
swelling in [his] leg and come to a professional judgment
[that Plaintiff] putting full weight on [his] leg
wouldn’t be in [his] best interest. [Plaintiff bore his]
full weight by force of being denied crutches [as] it was
[his] only way to make it back to [his] dorm. Officer
Hunt witnessed this visit and [he and Plaintiff] spoke on
the way back to the dorm of Defendant Stubbs[’s]
unprofessionalism
during
[Plaintiff’s]
visit
from
beginning [until the] end. Defendant Stubbs also charged
[Plaintiff] twice for this appointment which is also on
file.
(Docket Entry 50 at 2-4.)
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
19
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.
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
20
motion for summary judgment.”
Lewis v. Eagleton, 4:08-cv-2800,
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
“It is undisputed that the treatment a prisoner receives in
prison and the conditions under which he is confined are subject to
scrutiny under the Eighth Amendment.”
U.S. 25, 31 (1993).
Helling v. McKinney, 509
To establish a constitutional claim regarding
his medical care, Plaintiff must show that Defendants “acted with
‘deliberate indifference’ (subjective) to [his] ‘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)).
A medical need qualifies as serious if it “has been diagnosed
by a physician as mandating treatment or . . . is so obvious that
21
even a lay person would easily recognize the necessity for a
doctor’s attention.”
defendant
displays
Id. (internal quotation marks omitted).
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
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.”
De’lonta v.
Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (internal quotation
marks omitted).
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 (internal
quotation marks omitted).
A
plaintiff
can
also
establish
“a
prima
facie
case
of
deliberate indifference” where “‘a substantial risk of [serious
22
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).
treatment
of
a
circumstances,”
Hamidullah,
281
constitutional]
Furthermore, “a significant delay in the
serious
medical
constitute
F.
App’x
violation
condition
may,
in
deliberate
indifference.
159,
(4th
only
166
occurs,
Cir.
however,
results in some substantial harm to the patient.
the
Webb
2008).
if
proper
the
v.
“A[
delay
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).
23
Finally, the Eighth Amendment protects a prisoner’s right to
medical care, but not to the particular medical care that an
individual prisoner may demand.
See Smith v. Walker, 845 F. Supp.
2d 673, 677 (W.D.N.C.) (“The constitutional right is to medical
care.
No right exists to the type or scope of care desired by the
individual prisoner.”), aff’d, 476 F. App’x 417 (4th Cir. 2012).
Accordingly, “[d]isagreements between an inmate and a physician
over the inmate’s proper medical care do not state a § 1983 claim
unless exceptional circumstances are alleged.”
Wright v. Collins,
766 F.2d 841, 849 (4th Cir. 1985) (affirming summary judgment
against the plaintiff on deliberate indifference claim where “[the
plaintiff] allege[d] that he received inadequate medical treatment
while at the clinic, and that he was discharged prematurely by [the
defendant medical provider] before he had recovered sufficiently
from his injuries,” id. at 843, explaining that “[the defendant]
and others provided [the plaintiff] with medical treatment on
numerous occasions,” and that “[the plaintiff’s] allegation that
his medical care was inadequate would, at most, constitute a claim
of
medical
malpractice,”
id.
at
849).
Moreover,
generally
speaking, “prison non-medical staff are ‘entitled to rely’ on the
competence and expertise of prison health care providers.”
Moses
v. Stewart, No. CV 15-3875, 2017 WL 4326008, at *5 (D. Md. Sept.
26, 2017) (quoting Miltier, 896 F.2d at 854-55).
24
III.
A.
Analysis
Dr. Grewal
Dr. Grewal moves for summary judgment on the grounds, inter
alia, that
“the
evidence
shows
that
he
indifferent to any serious medical need.”
(emphasis omitted).)
Plaintiff
has
was
not
deliberately
(Docket Entry 44 at 13
The record substantiates that contention.
sworn
that,
on
June
23,
2017,
Dr.
Grewal
erroneously informed Plaintiff that his “M.R.I. showed no signs of
any damage” and warranted “no further medical attention.”
(Docket
Entry 27 at 3.) Plaintiff further has asserted that, approximately
three
months
later,
a
doctor
at
Whiteville
C.I.
reviewed
Plaintiff’s M.R.I. (see id. at 3) and “was puzzled [as] to why
[Plaintiff] had not received medical attention beyond the M.R.I[.]
. . . [and] acknowledged the swelling alone showed sign of a[n]
injury”
(id.
at
4).
According
to
Plaintiff,
that
doctor
immediately scheduled an appointment with an orthopedic doctor,
which occurred “shortly [there]after” at OrthoCarolina.
(Id.)
Subsequently, an OrthoCarolina doctor prescribed physical therapy,
which Plaintiff received, and later “diagnosed [Plaintiff] with a
scabbed nerve in [his] lower back,” which a physical therapist told
Plaintiff occurred “due to the delay in medical treatment.”
(Id.)
Notwithstanding Plaintiff’s recollection of his conversation
with Dr. Grewal, the medical records from June 23, 2017, reflect a
diagnosis of “ITB syndrome with tight hamstrings,” as to which
25
Dr. Grewal “recommended P[hysical ]T[herapy],” with “f[ollow-]u[p]
as needed.”
(Docket Entry 44-1 at 98; see Docket Entry 44-2, ¶ 8
(“During [their] appointment, [Dr. Grewal] prescribed physical
therapy for Plaintiff, and [Dr. Grewal] explained to him that [he]
was prescribing physical therapy. . . .
[Dr. Grewal] told []
Plaintiff to participate in physical therapy and to follow up with
the Orthopaedic Clinic as needed.”); see also Docket Entry 44-1 at
66 (documenting that, at medical appointment on August 16, 2017,
Plaintiff indicated that he “thought he would be sch[eduled] for
P[hysical ]T[herapy]”).)
The record further establishes that
Dr. Grewal submitted a request for physical therapy for Plaintiff
through the prison review process, as a “rush” request.
(Docket
Entry 44-2, ¶ 8; see also Docket Entry 44-1 at 98.)
Pursuant
to
preauthorization
DPS
(see
policy,
Docket
physical
Entry
44-3
therapy
at
2-3),
required
and
only
Plaintiff’s then-current DPS doctor could submit the necessary
authorization request.
(Id. at 6; see also id. at 8.)
In light of
Dr. Grewal’s physical therapy recommendation, Plaintiff’s Scotland
C.I. medical provider submitted a UR request for physical therapy
on June 23, 2017.
44-2, ¶ 11.)
(Docket Entry 44-1 at 2; see also Docket Entry
However, the UM Physician Reviewer, Dr. Jackson,
declined to authorize physical therapy at that point, due to a lack
of functional limitation.
(Docket Entry 44-1 at 2.)
Dr. Grewal
played no role in this denial of physical therapy (see id.; see
26
also Docket Entry 44-2, ¶ 13; Docket Entry 44-3 at 6-8), and
possessed no authority to compel DPS to permit Plaintiff physical
therapy (see Docket Entry 44-3 at 6-8; see also Docket Entry 44-2,
¶¶ 9-10).
Indeed, nothing in the record suggests that Dr. Grewal
even knew that DPS rejected his physical therapy recommendation
prior to Plaintiff initiating the instant lawsuit.
(See, e.g.,
Docket Entry 44-2, ¶¶ 6, 10-11, 13.)
Moreover, the record reflects that, in October 2017, a doctor
at
Whiteville
C.I.
submitted
a
UR
request
for
an
orthopedic
referral and scheduled a follow-up appointment for November 6,
2017.
4.)
(See Docket Entry 44-1 at 65; see also Docket Entry 27 at
Per the Complaint, since Whiteville C.I. decided “to get
[Plaintiff] to an orthopedic [doctor,]” he has “been receiving
adequate medical attention.”
(Docket Entry 2 at 4.)
This medical
attention has included physical therapy (see, e.g., Docket Entry
44-1 at 58-63; Docket Entry 27 at 4), as the medical records
confirm Dr. Grewal recommended in June 2017 (see Docket Entry 44-1
at 98). Finally, although Plaintiff has stated that his orthopedic
doctor diagnosed him with “a scabbed nerve in [his] lower back,”
and that a physical therapist attributed the development of that
“scabbed nerve . . . to the delay in medical treatment” (Docket
Entry 27 at 4), Dr. Grewal has averred that “[t]here is no such
thing as a ‘scabbed nerve,’ and it is not medically possible for a
27
patient’s delay in obtaining physical therapy to result in a nerve
developing a scab” (Docket Entry 44-2, ¶ 15).
Accordingly,
the
evidence
shows
that,
even
assuming,
as
Plaintiff has alleged, that Dr. Grewal erroneously told Plaintiff
that the M.R.I. reflected no damage and warranted no further
medical treatment (see Docket Entry 27 at 3), Dr. Grewal recorded
in Plaintiff’s medical records that Plaintiff suffered from “ITB
syndrome with tight hamstrings,” for which Dr. Grewal “recommended
P[hysical ]T[herapy],” with “f[ollow-]u[p] as needed.”
Entry 44-1 at 98.)
(Docket
Pursuant to DPS policies, Dr. Grewal possessed
no authority over the further course of Plaintiff’s care,11 and
could
only
make
recommendations
for
future
treatment,
which
remained subject to review and approval by Plaintiff’s DPS medical
providers.
(See, e.g., Docket Entry 44-3 at 8.)
Moreover,
regardless of what Dr. Grewal told Plaintiff, Dr. Grewal submitted
a
request
for
Plaintiff
to
receive
physical
therapy,
which
Plaintiff’s DPS doctor accepted and submitted for authorization.
(Docket Entry 44-1 at 2, 98.)
to
authorize
physical
The UM Physician Reviewer declined
therapy
at
that
time.
(Id.
at
2.)
Accordingly, Dr. Grewal bears no responsibility for the delay in
Plaintiff’s receipt of physical therapy.
11 Custodial Defendants likewise possessed no authority over
Plaintiff’s medical care. (See, e.g., Docket Entry 48-1, ¶¶ 11-14,
18-19, 21-26.)
28
Further, the record contains no competent evidence that any
delay in physical therapy caused Plaintiff “substantial harm,”
Webb, 281 F. App’x at 166.
Plaintiff has sworn that his physical
therapist told him that the pain in his leg originated “from a once
pinched nerve in [his] lower back that has formed into a scabbed
nerve due to the delay in medical treatment.”
4.)
(Docket Entry 27 at
However, this statement qualifies as “hearsay because [it is]
used to prove the truth of the out of court and unsworn assertions
of a non-witness, namely this unidentified [physical therapist].”
Solais v. Vesuvio’s II Pizza & Grill, Inc., No. 1:15cv227, 2016 WL
1057038, at *3 (M.D.N.C. Mar. 14, 2016) (internal quotation marks
omitted). As “[h]earsay in an affidavit constitutes the functional
equivalent of an unsworn allegation,” id. at *3 n.4, it remains
“inadmissible as substantive evidence,” id. (internal quotation
marks
omitted),
and
judgment,” id. at *3.12
“cannot
justify
[the]
grant
of
summary
Thus, the only admissible evidence before
the Court reflects that “[t]here is no such thing as a ‘scabbed
nerve,’ and it is not medically possible for a patient’s delay in
obtaining physical therapy to result in a nerve developing a scab.”
(Docket Entry 44-2, ¶ 15.)
12
Even if the Court deemed the physical therapist’s
statement admissible, Plaintiff has produced no evidence that the
three-or-four-month delay between his appointment with Dr. Grewal
and his appointment with the doctor at Whiteville C.I. caused such
injury, given the ten-month delay between Plaintiff first
submitting a sick-call request regarding his leg injury and his
appointment with Dr. Grewal. (See Docket Entry 27 at 3-4.)
29
In sum, the record establishes that Dr. Grewal did not “act[]
with
‘deliberate
indifference’
(subjective)
to
[Plaintiff’s]
‘serious medical needs’ (objective),” Iko, 535 F.3d at 241; see
also id. (explaining that, to establish deliberate indifference, an
official must possess “actual knowledge of the risk of harm to the
inmate” and “must also have recognized that his actions were
insufficient to mitigate the risk of harm to the inmate arising
from his medical needs” (emphasis in original) (internal quotation
marks omitted)).
The Court should therefore grant the Doctor’s
Motion.
B.
Prison Defendants
Prison
Defendants
likewise
contend
that
“the
record
demonstrates that [they] did not act with deliberate indifference
to a serious medical need of Plaintiff.”
(Docket Entry 47 at 1.)
This contention also merits summary judgment.
i.
Custodial Defendants
The Complaint maintains that Custodial Defendants “disregarded
getting
[Plaintiff]
adequate
medical
attention
after
[he]
acknowledged them [that he] was in excruciating pain and had
already made several complaints through grievances, sick-calls, as
well as ‘emergency’ sick calls and grievances.” (Docket Entry 2 at
4.)
As evidence in support of this assertion, the Opposition
states
that
Plaintiff
informed
Custodial
Defendants
that
the
Scotland C.I. medical staff “was not giving [him] adequate medical
30
attention”
and
that
his
(Docket Entry 50 at 3.)
“injury
was
getting
wors[e]
daily.”
Plaintiff also has sworn that each time he
“attended a sick-call appointment[, he] made it [known that] he
needed the
attention
of
a
qualified
diagnosis and was denied each time.”
[doctor
(Id.)
who
could]
give
Plaintiff further has
averred that he told Custodial Defendants “of these encounters.”
(Id.)
In response, according to Plaintiff, Covington and Torres
told him that “they couldn’t override medical by sending [him] to
the hospital” (id.), and Plaintiff received no “response from
[Poole]” (id.).
In Plaintiff’s view, after telling Custodial Defendants that
he
“wasn’t
receiving
adequate
medical
attention
at
their
facility[,] they should have investigated what was going on and
come to a conclusion that [he] needed to be seen by a [doctor]
qualified to inquire into essential facts necessary to make a
professional
judgment.”
(Id.
at
5.)
Plaintiff
further
has
asserted that, after informing Custodial Defendants “that the
medical attention [he] was receiving for [his] injury which in
conclusion resulted as a pinch nerve in [his] lower back was not
accurate or adequate[,] they did nothing which delayed [him] the
medical attention [he] severely needed.”
(Id. at 6.)
As a preliminary matter, Plaintiff’s alleged grievances and
letter to Poole do not appear in the record before the Court.
Docket Entries dated May 7, 2018, to present.)
31
(See
Moreover, no
evidence exists reflecting Poole’s receipt of Plaintiff’s letter or
grievances.
(See, e.g., Docket Entry 48-1, ¶¶ 5-6, 8-10; Docket
Entry 50 at 2-7.)
Rather, the record reflects that Poole “first
became aware of [Plaintiff’s] complaints related to his leg injury
when [she] received notice of this lawsuit” (Docket Entry 48-1,
¶ 10), which Plaintiff filed after he commenced receiving “adequate
medical attention” (Docket Entry 2 at 2).
Accordingly, Plaintiff
has not shown that Poole “actually kn[e]w of . . . an objectively
serious condition, medical need, or risk of harm,” De’lonta, 708
F.3d at 525 (internal quotation marks omitted).
Plaintiff likewise has provided insufficient detail regarding
his complaints to Torres and Covington, stating only that (1) he
made them “aware . . . that the medical staff at the facility was
not giving [him] adequate medical attention to help [him] and
acknowledged [his] injury was getting wors[e] daily eventually
resulting in difficulty getting out [of] bed” (Docket Entry 50 at
3) and (2) he “acknowledged” them of “encounters” with medical
professionals in which he requested to see a doctor, but only saw
nurses
(id.).
According
to
Plaintiff,
Torres
and
Covington
responded that “they couldn’t override medical by sending [him] to
the hospital.” (Id.; see also id. (explaining that, when Plaintiff
made “numerous” sick-call requests, he was “seen by nurses who
didn’t give physical examinations, couldn’t give diagnosis[,] and
w[ere] not in the presence of a doctor qualified to inquire into
32
essential
facts
that
are
necessary
to
make
a
professional
judgment”).)
Plaintiff’s assertions fail to establish that Covington and
Torres
“‘kn[ew]
of
and
disregard[ed]
an
excessive
risk
to
[Plaintiff’s] health or safety,’” Scinto, 841 F.3d at 225 (first
two sets of brackets in original).
First, Plaintiff’s generalized
description of his complaints do not show that he sufficiently
alerted Covington and Torres to an objectively serious medical
need. (See Docket Entry 50 at 3.)
Moreover, regardless of whether
they sufficiently conveyed a serious medical need, Plaintiff’s
complaints
explicitly
revealed
to
Torres
and
Covington
that
Plaintiff remained under medical care for his injury, attending
“numerous” sick-call appointments.
(Id.)13
Although Plaintiff
disagreed with the treatment he received and the provision of care
by nurses rather than doctors (see id.), disagreements between an
inmate and medical provider regarding the inmate’s medical care,
without more, do not create a constitutional claim, and inmates
possess no constitutional right to treatment by a particular type
of medical provider.
See Wright, 766 F.2d at 849; Smith, 845 F.
Supp. 2d at 677.
13 Per Plaintiff’s interrogatory responses, which he filed
with the Court, he attended six medical appointments at Scotland
C.I. between October 2016 and January 2017, with his appointments
evenly divided between doctors and nurses. (See Docket Entry 29 at
7.)
33
Furthermore, as non-medical prison staff, Torres and Covington
generally
“[we]re
‘entitled
to
rely’
on
the
competence
and
expertise of prison health care providers,” Moses, 2017 WL 4326008,
at *5, and Plaintiff’s undeveloped, conclusory complaints that “the
medical staff at the facility was not giving [him] adequate medical
attention to help [him]” (Docket Entry 50 at 3), fails to overcome
this presumption.
See, e.g., Miltier, 896 F.2d at 854 (“No record
evidence suggests why the wardens should not have been entitled to
rely upon their health care providers’ expertise.”); Moses, 2017 WL
4326008, at *5 (granting summary judgment to warden defendants
where “there [wa]s no evidence to suggest[] that either [defendant]
intentionally
delayed
his
treatment,
only
that
they
did
not
contradict the determinations about that treatment made by medical
staff”).
Finally, as discussed above, Plaintiff produced no
competent
evidence
that
any
delay
in
treatment
allegedly
attributable to Custodial Defendants caused Plaintiff “substantial
harm,” Webb, 281 F. App’x at 166.
(See generally Docket Entry 44-
2, ¶ 15 (explaining that “[t]here is no such thing as a ‘scabbed
nerve,’ and it is not medically possible for a patient’s delay in
obtaining physical therapy to result in a nerve developing a
scab”).)14
14 In this regard, to the extent that Plaintiff criticizes
Torres and Covington for failing to “override medical by sending
[him] to the hospital” (Docket Entry 50 at 3), which they lacked
authority to do (see, e.g., Docket Entry 48-2, ¶¶ 8-11, 14-15), it
(continued...)
34
Accordingly,
Custodial
the
cannot
“acted
Defendants
record
with
support
a
finding
‘deliberate
that
indifference’
(subjective) to [Plaintiff’s] ‘serious medical needs’ (objective).”
Iko, 535 F.3d at 241.
The Court should therefore grant their
request for summary judgment.
ii.
Stubbs
Finally, Plaintiff has taken issue with the treatment that he
received from Stubbs during his emergency sick-call appointment on
January 12, 2017.
(See Docket Entry 50 at 3-4.)
In particular, he
has criticized her for performing “not an examination but an
assessment” (see id. at 3), for prescribing him ice even though he
identified cool air as an exacerbating factor for his leg injury
(see id. at 4), “den[ying him] crutches claiming [he] was walking
normal[ly]”
Plaintiff’s]
(id.),
entire
and
acting
visit”
“hostile
(id.).
To
and
rude
begin,
[during
Plaintiff’s
“assessment-not-examination” critique apparently arises from a
misreading of Stubbs’s affidavit, which interchangeably describes
her actions as an assessment and an examination.
(Compare, e.g.,
Docket Entry 48-3, ¶ 10 (“I performed a complete assessment of
[Plaintiff] on January 12, 2017.”), and id., ¶ 20 (“My examination
of [Plaintiff] was thorough and complete and was based upon his
14(...continued)
also bears noting that Plaintiff does not allege — and his medical
records do not reflect — that his subsequent “adequate medical
treatment” for his leg injury involved any hospital care (see
Docket Entries 2, 44-1).
35
clinical presentation and subjective complaints.”), with Docket
Entry 50 at 3 (“[Prison Defendants’ summary judgment evidence]
states
Defendant
Stubbs
performed
a
thorough
and
complete
‘assessment’ of Plaintiff January 12th 2017 not an examination but
an assessment.”).)
Moreover, Plaintiff has not explained, let
alone provided evidence regarding, how an examination differs from
an assessment.
(See Docket Entry 50 at 3-4.)
He likewise failed
to offer anything other than speculation that, if Stubbs conducted
“a thorough examination[,] she would have noticed the swelling in
[his] leg and come to a professional judgment [that Plaintiff]
putting
full
interest.”
judgment.
weight
on
(Id. at 4.)
[his]
leg
wouldn’t
be
in
[his]
best
Such speculation cannot defeat summary
See Lewis, 2010 WL 755636, at *5.
For her part, Stubbs has sworn that her “decision to not
provide [Plaintiff] with crutches was based upon [her] years of
training and experience as a nursing professional, and [her]
objective assessment of [Plaintiff].”
see also id., ¶ 18.)
(Docket Entry 48-3, ¶ 19;
This assessment revealed that Plaintiff’s
knee displayed a normal range of motion, with no visible swelling,
distress, or loss of function.
(Docket Entry 48-4 at 2.)
As such,
Plaintiff has not shown that, by prescribing anti-inflammatory pain
medication and the RICE protocol, Stubbs disregarded an excessive
risk to Plaintiff’s health.
Court,
Plaintiff’s
In short, on the record before the
complaints
about
36
Stubbs’s
evaluation
and
determinations
regarding
crutches
and
ice
reflect
merely
a
disagreement between an inmate and medical provider concerning
appropriate medical care, which does not support a constitutional
claim.
See Wright, 766 F.2d at 849.
rudeness,
violation.
without
more,
do
not
In addition, hostility and
establish
a
constitutional
See Wilson v. McKeller, 254 F. App’x 960, 961 (4th Cir.
2007) (“[M]ere threats or verbal abuse, without more, do not state
a cognizable claim under § 1983.”); Carter v. Morris, 164 F.3d 215,
219 n.3 (4th Cir. 1999) (“[A]lthough [the plaintiff] alleges that
individual
officers
insulted
her
with
racial
epithets,
such
undeniably deplorable and unprofessional behavior does not by
itself rise to the level of a constitutional violation.”).15
Accordingly,
Plaintiff
has
failed
to
show
that
Stubbs
displayed deliberate indifference to his serious medical needs.
See Iko, 535 F.3d at 241.
The Court should therefore grant her
request for summary judgment.
CONCLUSION
The record establishes that Defendants did not act with
deliberate indifference to Plaintiff’s serious medical needs.
15
Plaintiff’s
disagreement
with
Stubbs’s
medical
determinations (see Docket Entry 50 at 6 (arguing that, “[a]s
stated above[, Stubbs] did more than just be hostile and rude”)) do
not supply the “more” necessary to change this conclusion.
37
IT IS THEREFORE RECOMMENDED that the Doctor’s Motion (Docket
Entry 43) and the Prison Defendants’ Motion (Docket Entry 47) be
granted.
This 3rd day of February, 2020.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
38
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?