Abraham v. McDonald et al

Filing 122

ORDER RULING ON 116 Report and Recommendations; the Court grants 98 Motion for Summary Judgment, filed by Benjamin F Lewis, Jr, Samantha F McCoy, Jennifer N Bowman, A J Padula, Marietta Dingle, Yvonne McDonald, Judy Rabon, Fran Chambers, NFN Benoir, NFN Moore, Jon E Ozmint, Marcus A Pratt. Signed by Honorable Richard M Gergel on 2/29/2012. (mbro, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Frenchis Gerald Abraham,
Plaintiff,
vs.
Yvonne McDonald, RN, et aI.,
Defendants

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Civil Action No.6: 11-46-RMG

ORDER

This matter comes before the Court on Defendants' motion for summary judgment. (Dkt.
No. 98). Plaintiff, a pro se state prisoner, seeks relief pursuant to 42 U.S.C. § 1983 for alleged
violations of his rights under the Eighth Amendment of the United States Constitution to be free
of cruel and unusual punishment. Plaintiff alleges that the failure of the Defendants, all officials
with the South Carolina Department of Corrections ("SCDC"), to provide him medical treatment
"in a prompt manner" constituted a violation of his Eighth Amendment rights. (Dkt. No. 79 at 2).
Pursuant to 28 U.S.C. § 636(b)(l)(B) and Local Rule 73.02(B)(2)(b), D.S.C., this matter
was referred to the Magistrate Judge for pretrial handling. The Magistrate Judge issued a Report
and Recommendation on January 23,2012, recommending that the motion for summary
judgment of Defendants Ozmint and Padula be granted, the motion for summary judgment of all
other Defendants regarding claims against them in their official capacities be granted, and the
motion for summary judgment of the Defendants (except Ozmint and Padula) regarding claims
for alleged cruel and unusual punishment be denied. (Dkt. No. 116). Defendants filed objections
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to the Magistrate Judge's Report and Recommendation. (Dkt. No. 120). After a careful review of
the entire record in this matter, the memoranda of the parties and applicable case law, the Court
grants Defendants' motion for summary judgment, as set forth further below.

Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objection
has been made. The Court may accept, reject or modify, in whole or in part, the recommendation
of the Magistrate Judge. 28 U.S.C. § 636(b)(1).
In a motion for summary judgment, the movant is entitled to relief only if he or she can
show "that there is no genuine dispute as to any material fact" and the moving party is thus
"entitled to judgment as a matter oflaw." FED.R.ClV.P. 56(a). A fact is deemed "material" if
proof of its existence or non-existence would affect the disposition of the case under applicable
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). An issue of "material fact" is
"genuine" if the evidence offered is of the type from which a reasonable jury might return a
verdict for the non-moving party. Id. at 257. The evidence must be viewed in a light most
favorable to the non-moving party, and all inferences and ambiguities are read in favor of the
non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The Eighth Amendment prohibits "cruel and unusual punishment", which has been held
to protect incarcerated persons where they have been denied medical care in a manner which
constitutes a "deliberate indifference to serious medical needs of prisoners" and results in

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"unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 104 (1976). The
Fourth Circuit has held that "negligent medical diagnoses or treatment, without more, do not
constitute deliberate indifference." Webb v. Hamidullah, 281 Fed. Appx. 159, 166 (4th Cir. 2008)
(unpublished). Where the alleged Eighth Amendment violation involves a delay in medical or
surgical treatment, a violation occurs only "if the delay results in some substantial harm to the
patient." fd. "Substantial harm" can be demonstrated by the "marked" worsening ofthe
inmate's condition during the delay in treatment, "frequent complaints of severe pain", or the
progression of the condition during the period of delay so that it is now untreatable. fd at 167.
The Fourth Circuit has provided considerable guidance in assessing claims of deliberate
indifference involving a delay but not a denial of surgical treatment to prisoners. In Price v.

Carey, 956 F .2d 1163 (4th Cir. 1992)(unpublished table decision), the Fourth Circuit rejected a
claim of deliberate indifference where there was an eight month delay in providing surgery but
no indication of a need for more emergent treatment. On the other hand, the Fourth Circuit
recognized a deliberate indifference claim where there was a four year delay in providing surgical
treatment, during which time the previously treatable condition became inoperable. Garrett v.

Elko, 120 F.3d 261 (4th Cir. 1997)(unpublished table decision). Further, the Fourth Circuit
rejected a deliberate indifference claim where, during a period of delay in conducting surgery, the
prisoner had complaints of pain that resulted in prison medical officials evaluating and
monitoring the patient and assessing the patient for any worsening of his condition. Webb, 281
Fed. Appx. at 167.

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Factual Background

Plaintiff was incarcerated at Lieber Correctional Institution, which is part of the SCDC.
In early July 2009, Plaintiff presented to sick call complaining of a variety of symptoms, which
included hematuria (blood in the urine) and gastrointestinal complaints. (Dkt. No. 98-3 at 17-18).
Various blood tests were conducted in August which suggested some possible liver
abnormalities. Id. at 17. A physician, Dr. Pate, evaluated Plaintiff with complaints of abdominal
pain and diarrhea on October 12,2009, and ordered a variety oflaboratory and radiographic
studies. Id. at 16. Imaging studies, including a CT and ultrasound, were performed at a facility
away from the prison on October 22,2009. Id. at 15. Dr. Pate reviewed the reports from the CT
and ultrasound on November 9, 2009, and noted that they revealed a "large splenic cyst
measuring more than 9 cm" but that there was "no evidence of occult malignancy or
inflammatory process." Id. Dr. Pate requested a "surgical consult ASAP." Id.
Plaintiff was seen by a surgeon, Dr. Stanford, on November 19,2009, who evaluated the
patient for both the hematuria and the splenic cyst. The physician noted that in regard to the cyst,
the patient had some history of abdominal pain but the symptoms were mostly with reflux and
diarrhea. (Dkt. 98-4 at 9). Dr. Stanford ordered a variety of diagnostic studies to evaluate both
the splenic cyst and the hematuria and directed that the patient follow up with him once the tests
were done to reevaluate the patient and schedule surgery for the cyst. Id. Plaintiff, however, was
not rescheduled to see Dr. Stanford and there was no further follow up at that time to address the
cyst. Instead, approvals were given for a urology consult to address the Plaintiff s hematuria.
(Dkt. 98-3 at 13).
On July 3, 2010, more than eight months following the last contact with a physician

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regarding the splenic cyst, Plaintiff presented to a nurse at sick call and inquired about when his
splenic surgery was going to be scheduled. The nurse conducted a physical exam and
documented that the patient had "tenderness" in the "upper left abdominal area" but was not in
"acute distress." (Dkt. No. 98-3 at 11). The nurse advised Plaintiff that his request for follow up
with a physician regarding his cyst would have to be reviewed by the doctor. Id. Two weeks
later, on July 17,2010, Plaintiff was seen at sick call for an ingrown toenail and athlete's foot,
without any documented complaints regarding pain or other symptoms allegedly related to the
splenic cyst. Id. On August 5, 2010, laboratory results relating to Plaintiff s hematuria
evaluation indicated no evidence of malignancy. Id. at 10-11.
Beginning on September 1, 2010, Plaintiff repeatedly complained about the pace of his
medical evaluation and treatment regarding both his hematuria and the splenic cyst. In a sick call
encounter on September 1, Plaintiff asserted he was experiencing abdominal pain and the cyst
was allegedly "causing his stomach to be pushed out and nauseated and can not eat." Id. at 10.
A nurse examined Plaintiff and found normal vital signs and his abdomen soft and non­
distended. Id. A urology consult had been approved for the hematuria and laboratory results
were gathered and sent for that appointment. Plaintiff was seen by a urologist on September 23,
2010 and was prescribed multiple medications to treat the urinary complaints. Id. Plaintiff was
instructed to follow up with urology as needed. Id. Plaintiffraised with the urologist the failure
to follow up on the splenic cyst, and the physician informed him that this was outside his area of
expertise. (Dkt. No. 113-3 at 1).
Upon Plaintiffs return to the prison following his urology appointment, he filed a
grievance regarding the failure to treat his splenic cyst. He asked for treatment of the condition
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and pain medication to deal with "the hardship and pain of this condition." Id The SCDC's
response to the grievance indicated that Dr. Moore, the South Carolina Department of
Corrections Medical Director, would have to approve further surgical evaluation and treatment of
the cyst. (Dkt. No. 113-3 at 1; 98-3 at 9-10). On October 10,2010, Plaintiff presented to sick call
complaining of abdominal pain and "thinks this pain might be related to his spleen." (Dkt. No.
93-3 at 8). A nurse examined Plaintiff and found no evidence of any acute distress. She did find
the abdomen "tender in the left upper quadrant." Id The nursing staff documented continuing
efforts to obtain approval for Plaintiff to be seen by a surgeon. !d. On October 15,2010,
Plaintiff again appeared at sick call and inquired when he would see a surgeon. Id.
Plaintiff was again seen by a nurse on October 18, 2010, expressing concern about his
splenic cyst and the need for treatment. He was examined, found to be in no acute distress, had
normal breathing and vital signs and had a "slightly tender" abdomen. Id. at 7. The record
documented that the request for surgical evaluation was then pending. Plaintiff also mentioned
in that encounter certain mental health issues he was then experiencing unrelated to the cyst or
hematuria, and he was seen that day as a follow up on the mental health issues. Id at 7-8.
Plaintiff was also seen at sick call on December 4,2010, complaining ofa recurrence of his
urinary symptoms and was prescribed medication for this condition. Id at 6.
Plaintiff continued his efforts to obtain surgical evaluation and treatment for his splenic
cyst. After failing to obtain relief in the prison grievance process, Plaintiff filed an appeal to the
Administrative Law Court. On December 3,2010, Administrative Law Judge Shirley Robinson
dismissed the appeal for lack of appellate jurisdiction, but found that "Inmate has not received
appropriate medical treatment" and ordered that the SCDC "shall promptly arrange for
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[Abraham] to be seen by a surgeon for treatment of his splenic cyst." (Dkt. No. 113-2). Shortly
thereafter, Plaintiffs request for a surgical evaluation was approved and scheduled for January
20, 2011. (Dkt. No. 98-3 at 5).
Plaintiff was seen by a surgeon, Dr. Moss, on January 20, 2011 regarding the splenic cyst.
Dr. Moss described Plaintiffs abdomen as "tender" in the left upper quadrant and ordered
treatment by way of a CT guided aspiration of the cyst. (Dkt. No. 98-4 at 32). The procedure
was initially ordered for February 24, 2011 at Tuomey Hospital in Sumter but was postponed
after the patient arrived because the outside radiology group that had earlier performed the initial
CT had failed to send the hospital those films. Several weeks later, on March 7, 2011, Plaintiff
returned to Tuomey Hospital and the aspiration of the cyst was successfully accomplished
without any documented complications. Id at 36. A culture of the cystic fluid was essentially
normal and no further treatment was recommended. (Dkt. No. 98-3 at I). Plaintiff subsequently
complained of some pain in the abdomen and was prescribed 800 mg of Ibuprofen. Id.
Discussion
Plaintiff s medical records, which were produced primarily by SCDC medical and
nursing staff, document a series of delays in providing treatment to the inmate for his splenic cyst
that would arguably constitute medical malpractice. The initial error appears to have occurred
when the SCDC failed to follow a surgeon's November 19, 2009 order that the patient be
returned to him for surgical treatment following the completion of various pre-operative
laboratory studies. (Dkt. No. 98-3 at 13). When Plaintiff brought this failure to follow up to
SCDC's attention in a July 3, 2010 sick call, there was no documented institutional response.
Multiple further sick call encounters and a grievance also failed to produce any meaningful

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action by SCDC. ld. at 8-10. It appears to the Court that it was the order of Administrative Law
Judge Shirley Robinson that a surgical evaluation be ordered "promptly" which finally resulted in
the provision of the necessary surgical treatment of the inmate. (Dkt. No. 113-2).
It is well settled, however, that "negligent medical diagnoses or treatment, without more,
do not constitute deliberate indifference." Webb, 281 Fed. Appx. at 166. Where the Eighth
Amendment claim involves a delay but not a denial of medical care, the plaintiff must show
"some substantial harm." ld This can be demonstrated by a "marked" worsening of the
condition, "frequent complaints of severe pain" or the progression of the condition so that it is no
longer treatable. ld at 167.
Fortunately for Plaintiff and SCDC, the inmate did not suffer any "substantial harm" as a
result of the delay in rendering him surgical treatment for his splenic cyst. There is no evidence
that the condition became inoperable, such as documented in Garrett v. Elko, or that there was
any "marked increase" in the size of the cyst. Webb, 281 Fed. Appx. at 167. Further, while
Plaintiff episodically complained of abdominal pain, all physical examinations of the patient (and
there were many performed by the SCDC nursing staff) failed to demonstrate any acute distress.
There was certainly no episode of "severe pain" documented in the record, must less "frequent
complaints" of severe pain that the Fourth Circuit has required to establish evidence of
"substantial harm" necessary to state a claim for deliberate indifference. Moreover, it appears
that Plaintiff was able to obtain appropriate and necessary relief through available state
procedures, most particularly from the Administrative Law Court. I

1 SCDC would be well served to immediately reassess its procedures for timely
processing requests for specialist treatment for its inmates because the facts here suggest a
deficiency may exist. A future inmate could well suffer "substantial harm" should his or her
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Conclusion
Having found that Plaintiff suffered no "substantial hann" as a result of the delay in
rendering surgical treatment to him, the Court concludes that Plaintiff cannot establish an Eighth
Amendment claim for deliberate indifference to serious medical needs. Therefore, the Court
grants the Defendants' motion for summary judgment. (Dkt. No. 98).
AND IT IS SO ORDERED.

RltllafdMaTkGergel
United States District Judge

February <.,~ 2012
Charleston, South Carolina

condition progress in the face of such a delay in treatment as experienced by Plaintiff here.
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