Krug v. Loranth et al

Filing 57

ORDER adopting Report and Recommendations re 50 Report and Recommendation and granting 35 Motion for Summary Judgment Signed by Honorable David C Norton on 9/29/2014.(cahe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
GREGORY C. KRUG,
Plaintiff,
vs.
VICTOR LORANTH, JOHN R. OWEN,
and DAVID CRICKARD,
Defendants.

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No. 1:13-cv-01409-DCN

ORDER

This matter is before the court on Magistrate Judge Shiva V. Hodge’s Report and
Recommendation (“R&R”) that this court grant the motion for summary judgment filed
by defendants Dr. Victor Loranth (“Dr. Loranth”), John R. Owen (“Owen”), and David
Crickard (“Crickard”). Plaintiff Gregory C. Krug (“Krug”) filed written objections to the
R&R. For the reasons set forth below, the court adopts the R&R and grants defendants’
motion for summary judgment.
I. BACKGROUND1
Krug is an inmate within the Bureau of Prisons who was incarcerated at the
Federal Correctional Institution in Williamsburg, South Carolina (“FCI-Williamsburg”)
at all times relevant to this lawsuit. Compl. ¶ 1.2 At that time, Dr. Loranth was the
clinical director at FCI-Williamsburg, Owen was the warden, and Crickland was a unit

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The facts are considered and discussed in the light most favorable to Krug, the
party opposing summary judgment. See Pittman v. Nelms, 87 F.3d 116, 118 (4th Cir.
1996).
2
Krug amended his complaint in a letter which alleges a cause of action against
Crickland and incorporates the original complaint. For ease of reference, the court will
cite to facts and allegations from the original complaint as “Compl.,” and cite to facts and
allegations concerning Crickland as “Am. Compl.”
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manager. Compl. ¶ 2; Am. Compl. 1. Krug alleges that shortly after he arrived at FCIWilliamsburg, he informed Dr. Loranth of medical needs that required treatment from a
vascular surgeon for peripheral vascular disease (“PVD”) and from a podiatrist who
could make him custom arch supports. Compl. ¶ 5. Dr. Loranth never authorized
treatment from a podiatrist and only provided Krug with store-bought insoles.3 Id. ¶ 6.
Dr. Loranth did authorize Krug to see a vascular surgeon, who recommended that “an inhouse, laser procedure be performed on Krug’s left leg.” Id. When Krug requested a
copy of his test results, the vascular surgeon refused to give him those documents. Id. ¶
7. Krug told Dr. Loranth that he would not agree to the recommended procedure until he
received the test results and could obtain a second opinion. Id. ¶ 8. Krug claims that Dr.
Loranth promised him that he would promptly be seen by another vascular surgeon. Id.
Krug met with Dr. Loranth during at least two subsequent visits to the prison’s
clinic, and each time Dr. Loranth promised him that he “was on the list” to be seen by
another vascular surgeon. Id. ¶ 9. Krug brought the issue to Owen’s attention when he
realized that Dr. Loranth “had never intended to permit [him] to be seen by another
vascular surgeon.” Id. ¶ 10. Owen told Krug that he was “on the list,” but Krug left FCIWilliamsburg on June 15, 2012 without being seen by a podiatrist or a second vascular
surgeon. Id. Additionally, Krug alleges that Crickard denied his requests to transfer
units, which would have significantly reduced the distance that Krug had to walk every
day. Am. Compl. 1. Krug claims that Crickard’s denials exacerbated his pain. Id. at 1-2.

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Elsewhere, Krug describes the insoles as “custom arch supports.” Pl.’s
Objections 6-7.
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Krug filed the present action on May 24, 2013. He filed an amended complaint
on January 5, 2013, asserting a cause of action pursuant to Bivens v. Six Unknown
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which established a direct
cause of action against federal officials for the violation of federal constitutional rights.
On October 15, 2013, defendants filed a motion to dismiss or, in the alternative, for
summary judgment. Krug filed a response on December 23, 2013. The magistrate judge
issued an R&R on July 31, 2014, recommending that this court grant defendants’ motion.
Krug filed objections to the R&R on August 18, 2014. This matter is now ripe for the
court’s review.
II. STANDARDS
A.

Objections to R&R

This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of
the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). In absence of a
timely filed objection to a magistrate judge’s R&R, this court need not conduct a de novo
review, but instead must “only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (citing Fed. R. Civ. P. 72 advisory committee’s
note). The recommendation of the magistrate judge carries no presumptive weight, and
the responsibility to make a final determination rests with this court. Mathews v. Weber,
423 U.S. 261, 270-71 (1976). This court may accept, reject, or modify the report of the

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magistrate judge, in whole or in part, or may recommit the matter to him with instructions
for further consideration. 28 U.S.C. § 636(b)(1).
B.

Summary Judgment

Summary judgment is proper “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.”
Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will
not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary
judgment stage, the court must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in his favor. Id. at 255.
C.

Pro Se Plaintiff

Plaintiff is proceeding pro se in this case. Federal district courts are charged with
liberally construing complaints filed by pro se litigants to allow the development of a
potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se
complaints are therefore held to a less stringent standard than those drafted by attorneys.
Id. Liberal construction, however, does not mean that the court can ignore a clear failure
in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep’t of
Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
III. DISCUSSION
Krug objects to the R&R on six grounds, alleging the magistrate judge erred in:
(1) dismissing the claims as to the defendants in their official capacities; (2) finding that
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Krug has not offered any evidence that treatment by a podiatrist was medically necessary;
(3) reciting several facts which are false; (4) finding that Krug has failed to demonstrate a
claim of deliberate indifference with regard to his PVD; (5) finding that Krug has not
offered any evidence that he suffered harm from the delay in receiving PVD treatment;
and (6) finding that Crickard should be granted summary judgment. The court will first
discuss background law on claims of deliberate indifference to serious medical needs and
then consider each of Krug’s objections in turn.
In Estelle v. Gamble, the Supreme Court recognized a federal cause of action for
deliberate indifference to serious medical needs. 429 U.S. 97, 104 (1976). The Court
wrote that the claim is cognizable “whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison guards intentionally denying
or delaying access to medical care or intentionally interfering with the treatment once
prescribed.” Id. “Regardless of how evidenced, deliberate indifference to a prisoner’s
serious illness or injury states a cause of action under § 1983.” Id. at 104-05; see Farmer
v. Brennan, 511 U.S. 825, 834 (1994) (describing actions under 42 U.S.C. § 1983 against
state officials as “counterparts” to Bivens actions against federal officials). “Deliberate
indifference is a very high standard – a showing of mere negligence will not meet it.”
Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999); see also Whitley v. Albers, 475 U.S.
312, 319 (1986) (holding that deliberate indifference requires “more than ordinary lack of
due care for the prisoner’s interests or safety”).
A plaintiff must satisfy both a subjective and an objective component to show the
violation of a constitutional right. Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). To
prevail on a claim of constitutionally inadequate medical care, a plaintiff must
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demonstrate “that the officers acted with ‘deliberate indifference’ (subjective) to the
inmate’s ‘serious medical needs’ (objective).” Id. (citing Estelle, 429 U.S. at 104).
First, a plaintiff must show that the injury was objectively serious. Farmer, 511
U.S. at 834. A serious medical need is “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Iko, 535 F.3d at 241 (internal citation
omitted).
A plaintiff must also satisfy the subjective component – deliberate indifference.
Id. An officer is deliberately indifferent only when he “knows of and disregards” the risk
posed by the serious medical needs of the inmate. Farmer, 511 U.S. at 837. The Fourth
Circuit has identified two aspects of an official’s state of mind that must be shown to
satisfy the subjective component. First, actual knowledge of the risk of harm to the
inmate is required. Iko, 535 F.3d at 241 (citing Young v. City of Mt. Ranier, 238 F.3d
567, 575-76 (4th Cir. 2001)) (emphasis in original); see also Parrish ex rel. Lee v.
Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (“It is not enough that the officers should
have recognized [a substantial risk of harm].”). A factfinder may conclude that an officer
knew of a substantial risk from the very fact that the risk was obvious, but it is not
enough that a reasonable officer would have found the risk to be obvious. Parrish, 372
F.3d at 303 (internal citations omitted). The risk of injury must be so “obvious that the
fact-finder could conclude that the [officer] did know of it because he could not have
failed to know of it.” Id. (internal quotations and citations omitted) (emphasis in
original). Second, the officer “must also have ‘recognized that his actions were
insufficient’ to mitigate the risk of harm to the inmate arising from his medical needs.”
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Iko, 535 F.3d at 241 (citing Parrish, 372 F.3d at 303) (emphasis in original). A factfinder
may conclude that the official’s response to a perceived risk was so patently inadequate
as to justify an inference that the official actually recognized that his response to the risk
was inappropriate under the circumstances. Parrish, 372 F.3d at 303.
The court will analyze each alleged instance of deliberate indifference to
determine whether the facts make out a violation of a constitutional right. When
assessing the constitutionality of defendants’ actions, “courts are required to view the
facts and draw reasonable inferences in the light most favorable to the party opposing the
[summary judgment] motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (internal
quotation marks omitted).
1.

Defendants’ Official Capacity

Krug first objects to the magistrate judge’s recommendation that the court dismiss
his claims for monetary damages against defendants in their official capacities. Pl.’s
Objections 1. Krug argues that he never brought any claim against defendants in their
official capacities. Id. To the extent that Krug did not bring his complaint against
defendants in their official capacity, any error by the magistrate judge in interpreting his
complaint as such is harmless. Additionally, contrary to Krug’s assertions, the magistrate
judge did not take advantage of his failure to place “in their individual capacities” into
the caption of his complaint as a reason to dismiss the entire case. In fact, the R&R
continued to analyze the merits of the medical indifference claims as brought against
defendants in their individual capacities. R&R 5-10.
Krug’s first objection fails.

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2.

Deliberate Indifference – Podiatrist Treatment

Krug’s second objection is that the magistrate judge erred by stating that he had
not offered any evidence establishing that treatment by a podiatrist was medically
necessary. Pl.’s Objections 6. Krug argues that his declaration – in which he states that
the custom arch supports he was fitted for were a “slight improvement” but he continued
to be in a “massive quantity of pain” when he walked – proves that treatment by a
podiatrist was medically necessary. Id. at 6-7.
“Although the Constitution does require that prisoners be provided with a certain
minimum level of medical treatment, it does not guarantee to a prisoner the treatment of
his choice.” Thomas v. Anderson City Jail, No. 6:10-cv-3270, 2011 WL 534392, at *1
(D.S.C. Feb. 8, 2011) (quoting Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988)); see
Brown v. Thompson, 868 F. Supp 326 (S.D. Ga. 1994) (“Providing medical care is not
discretionary . . . . The type and amount of care, however, is purely discretionary.”). The
fact that a prisoner believed he had a more serious injury or that he required better
treatment does not establish a constitutional violation. Wright v. Moore, No. 8:12-cv1456, 2013 WL 4522903, at *6 (D.S.C. Aug. 26, 2013); see Nelson v. Shuffman, 603
F.3d 439, 449 (8th Cir. 2010) (“[A] prisoner’s mere difference of opinion over matters of
expert medical judgment or a course of medical treatment fail[s] to rise to the level of a
constitutional violation.” (internal quotation marks and citation omitted)); Walker v.
Peters, 863 F. Supp. 671 (N.D. Ill. 1994) (“[M]ere disagreements between doctor and
patient about the course of treatment do not reflect ‘deliberate indifference’ on the part of
the former, although if the patient is right he or she might have a common law (not a
constitutional) claim for medical malpractice.”)
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The evidence in this case, which Krug does not dispute, shows that he was seen
by the medical staff at FCI-Williamsburg at least 28 times for his PVD and problems
with his feet, and, on 16 of those visits, was examined by Dr. Loranth. Loranth Decl. ¶
37, 39. Krug was seen by a prosthetics and orthotics specialist for his foot problems who
created custom shoes with custom molded inserts. Id. ¶¶ 14, 19. The medical staff
determined that it was not medically necessary to see a podiatrist. Id. ¶ 19. In Dr.
Loranth’s declaration, he indicated that Krug received adequate medical care for the
problems with his feet while at FCI-Williamsburg. Id. ¶ 36.
Krug’s claim of deliberate indifference fails as it relates to the problems with his
feet because the record shows that medical staff repeatedly saw and treated Krug for
complaints regarding his feet. See Dulany v. Carnahan, 132 F.3d 1234, 1240 (8th Cir.
1997) (“In the face of medical records indicating that treatment was provided and
physician affidavits indicating that the care provided was adequate, an inmate cannot
create a question of fact by merely stating that she did not feel she received adequate
treatment.”); Singletary v. Fallen, No. 0:11-cv-543, 2012 WL 368375 (D.S.C. Jan. 17,
2012) report and recommendation adopted, 2012 WL 368364 (D.S.C. Feb. 3, 2012)
(granting summary judgment to prisoner alleging deliberate indifference because medical
records showed that prisoner was seen repeatedly for his complaints regarding foot pain).
Krug does not have a claim against defendants simply because he disagrees with the
course of treatment he received while at FCI-Williamsburg. See Nelson, 603 F.3d at 449.
At most, Krug’s claims allege negligence or medical malpractice, which are not
actionable as a constitutional claim. Lamb v. Lieber Corr. Inst. Med. Staff, No. 8:09-cv1806, 2009 WL 2524697, at *3 (D.S.C. Aug. 14, 2009).
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Krug’s second objection fails.
3.

Errors of Fact

Krug next objects to the magistrate judge’s recitation of two facts he claims are
false. Pl.’s Objections 7. First, Krug argues that the magistrate judge was incorrect when
he stated that Krug had received treatment for his PVD and medical problems with his
feet on at least 28 occasions. See Pl.’s Objections 7-8; R&R 7-8. Krug contends that
while he “may have been seen on 28 occasions,” he only received treatment once, when
he had custom molded inserts made for him. Pl.’s Objections 8. This is at best a quibble
over semantics that does not alter the magistrate judge’s analysis. Krug also asserts that
the magistrate judge incorrectly stated that Krug “refused [the vascular surgeon’s]
recommended treatment and requested a second opinion.” See Pl.’s Objections 8; R&R
8. Krug claims that the magistrate judge ignored the fact that he chose to reject the
recommended treatment in part because the vascular surgeon did not allow him to see the
test results. Pl.’s Objections 8-9. Notwithstanding the fact that the magistrate judge
explicitly discussed the reasons Krug refused treatment, R&R 2, it is again unclear what
effect Krug’s nitpicking has on the magistrate judge’s ultimate conclusion.
Krug’s third objection fails.
4.

Deliberate Indifference – PVD

Krug’s fourth and fifth objections involve his deliberate indifference claim
regarding his PVD. Krug argues that the magistrate judge improperly found that the
record reflects that he was assessed and treated by the FCI-Williamsburg medical staff
for PVC and erred in finding that he had not offered any evidence that he suffered harm
from the delay in receiving treatment for PVD. Pl’s Objections 10-11.
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The record indicates that Krug received extensive treatment for his PVD while at
FCI-Williamsburg. Shortly after arriving, he was issued a pair of knee-high compression
stockings for his PVD. Loranth’s Decl. ¶ 4. On June 6, 2011, a vascular surgeon
examined Krug and recommended that he be more compliant with wearing his support
stockings and that he undergo a bilateral lower extremity venous reflux evaluation. Id. ¶
11. Krug saw the vascular surgeon again for a follow-up on September 8, 2011. Id. ¶
15. The vascular surgeon recommended either endovenous laser ablation therapy or an
open vein stripping. Id. Krug indicated that he would think about it, id., and at some
time later informed the FCI-Williamsburg medical staff that he was suspicious of the
procedure because he was unable to see his test results. Id. ¶ 21. On January 18, 2012,
Krug was issued “one pair of TED hose knee-length stockings.” Id. ¶ 25. On March 7,
2012, Dr. Loranth prescribed Krug medication and provided him with a pair of crutches.
Id. ¶ 28. At the same time, Dr. Loranth told Krug that he would be sent to another
vascular surgeon for a second opinion. Id. In May, Dr. Loranth noted that a second
vascular surgeon had been contacted and Krug had an appointment scheduled for the next
month. Id. ¶ 32. However, Krug was transferred out of FCI-Williamsburg prior to his
schedule appointment. Id. ¶ 33. Dr. Loranth opined that Krug received adequate medical
care and treatment for his PVD while at FCI-Williamburg. Id. ¶ 36.
Once again, Krug’s complaint amounts to a disagreement with the treatment he
received for PVD while at FCI-Williamsburg. As discussed at length above, such
disagreement is insufficient to state a claim for a constitutional violation. See Nelson,
603 F.3d at 449. The record indicates that Krug was given compression stockings for his
PVD, was examined multiple times by the medical staff at FCI-Williamsburg, was
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examined by a vascular surgeon, and was scheduled to get a second opinion from another
vascular surgeon. See Dulany, 132 F.3d at 1240 (“In the face of medical records
indicating that treatment was provided and physician affidavits indicating that the care
provided was adequate, an inmate cannot create a question of fact by merely stating that
she did not feel she received adequate treatment.”); Singletary, 2012 WL 368375 (D.S.C.
Jan. 17, 2012) (granting summary judgment to prisoner alleging deliberate indifference
because medical records showed that prisoner was seen repeatedly for his complaints
regarding foot pain). Because Krug has failed to advance evidence of treatment “so
grossly incompetent, inadequate, or excessive as to shock the conscience or to be
intolerable to fundamental fairness,” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990),
defendants are entitled to summary judgment on his claim of deliberate indifference with
regard to his PVD.
Krug’s fourth and fifth objections fail.
5.

Deliberate Indifference – Failure to Transfer

For his final objection, Krug broadly objects to the magistrate judge’s handling of
his deliberate indifference claim against Crickard for his failure to transfer Krug to a
different housing unit. Pl.’s Objections 13-14.
Non-medical prison employees can be found to have acted with deliberate
indifference by “intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104-05. To bring a
constitutional claim against non-medical prison personnel, an inmate must show that such
officials were personally involved with a denial of treatment, deliberately interfered with
a prison doctor’s treatment, or tacitly authorized or were indifferent to the prison
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physician’s misconduct. See Miltier, 896 F.2d at 854. Moreover, non-medical prison
personnel are entitled to rely on the expertise of health care providers. See Iko, 535 F.3d
at 242 (“‘If a prisoner is under the care of medical experts . . . , a nonmedical prison
official will generally be justified in believing that the prisoner is in capable hands.’”
(alteration in original) (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)); Lee
v. Young, 533 F.3d 505, 511 (7th Cir. 2008) (“[I]n determining the best way to handle an
inmate’s medical needs, prison officials who are not medical professionals are entitled to
rely on the opinions of medical professionals.”); Durmer v. O'Carroll, 991 F.2d 64, 69
(3d Cir. 1993) (holding non-medical prison officials were not deliberately indifferent
“simply because they failed to respond directly to the medical complaints of a prisoner
who was already being treated by the prison doctor”).
Here, Krug was assigned to a “lower unit, lower tier, and lower bunk to meet his
medical restrictions.” Crikard Aff. ¶ 6 (emphasis added). Crickard informed Krug that
he would “have to see medical staff in order to get approval to be changed to a different
housing unit for medical reasons.” Id. As a non-medical prison officer, Crikard was
justified in relying on medical staff regarding the proper course of treatment for Krug.
See, e.g., Iko, 535 F.3d at 242. Without evidence that the medical staff felt it necessary
to move Krug to a different unit, there is insufficient evidence that Crikard’s failure to
transfer units was so patently inadequate as to be deliberately indifferent to Krug’s
medical needs.4 See Robbins v. Black, 351 F. App’x 58, 63 (6th Cir. 2009) (holding that

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Moreover, as noted by the magistrate judge, “decisions relating to the
accommodation of inmates, such as cell assignments, are the type of day-to-day
judgments that rest firmly in the discretion of prison officials.” Veney v. Wyche, 293
F.3d 726, 733 (4th Cir. 2002).
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actions of non-medical staff who, following a doctor’s instruction, failed to assign inmate
to a bottom bunk did not constitute deliberate indifference); Brown v. Randle, 2014 WL
2533213, *9 (N.D. Ill. June 5, 2014) (finding that non-medical prison officer’s decision
not to reassign inmate to a unit that “would have been more comfortable on account of . .
. air conditioning, less crowded nature, and easy access to daily medications” was not
deliberate indifference).
Krug’s final objection fails.
IV. CONCLUSION
Based on the foregoing, the court ADOPTS the magistrate judge’s R&R and
GRANTS defendants’ motion for summary judgment.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 29, 2014
Charleston, South Carolina

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