McClamy, Jr. v. Bell et al
Filing
44
MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 7/6/15. (c/s)(gwalk, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
John Alfred McClamy, Jr.,
)
Plaintiff,
)
)
)
v.
l:14cv485(LMB/MSN)
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Mr. Bell, et ah,
Defendants.
)
)
MEMORANDUM OPINION
John Alfred McClamy, Jr., a Virginia inmate proceeding pro se, filed this civil rights
action, pursuant to 42 U.S.C. § 1983, alleging that Dr. Cheshire, doctor at Portsmouth City Jail
("Portsmouth'1); and Dr. Kolongo, doctor at Hampton Roads Regional Jail ("Hampton Roads"),
showed deliberate indifference to his serious medical needs by failing to provide him with
adequate medical treatment for his injured hand. Dr. Cheshire has filed a Motion to Dismiss for
Failure to State a Claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), as well as a Motion
for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56.
Dkts. No. 26, 38. Dr.
Kolongo has filed a Motion to Dismiss for Failure to State a Claim. Dkt. No. 35. Both
defendants filed supporting memoranda of law and provided plaintiff with the notice required by
Local Rule 7(K) and Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
response only to Dr. Cheshire's Motion to Dismiss.
Plaintiff filed a
By Order dated June 3, 2015, the Court
granted plaintiffs request for an extension of time to file additional responses and he was
granted fifteen days in which to file.
Plaintiff has not filed any additional responses.
For the reasons that follow, plaintiffs claims will be dismissed as moot.
Even if they
were not moot. Dr. Kolongo's Motion to Dismiss and Dr. Cheshire's Motion for Summary
Judgment would be granted on their merits; rendering Dr. Cheshire's Motion to Dismiss moot.
I. Mootness
As relief in this case, plaintiff has requested only "proper medical treatment for [his]
hand.
(Fixed properly)."
Compl., at 6.
The events plaintiff complains of occurred during his
incarceration in the Portsmouth and Hampton Roads facilities.
On July 19, 2014, plaintiff was
transferred from Hampton Roads, and is currently housed at St. Bride's Correctional Center.
See Dkt. Nos. 14, 20, 21.
Therefore, to the extent that the only relief plaintiff seeks relates to
his treatment at Portsmouth and Hampton Roads, his claim is moot.
See Rendelman v. Rouse,
569 F.3d 182, 186 (4th Cir. 2009) (internal citations omitted) ("[A]s a general rule, a prisoner's
transfer or release from a particular prison moots his claims for injunctive and declaratory relief
with respect to his incarceration there.").
Because his claim is moot, his complaint must be
dismissed.
II. Motion for Summary Judgment
A. Background
Plaintiff was housed at Portsmouth from July 18, 2012 through January 24, 2014.
Compl., at 6. In October of 2013, he injured his right hand while on a work-detail assignment.
Id. at 5. He did not report this injury until December 26, 2013, when he saw Dr. Cheshire for an
unrelated follow up appointment. See Memorandum in Support of the Motion for Summary
Judgment of Defendant Glenn Cheshire, M.D. ("Cheshire Mem.") [Dkt. No. 39], Ex. 1 (Cheshire
Affi) Tl 1. When he met with Dr. Cheshire, plaintiff informed him that the "pain [had] mostly
resolved at this point." Id.; see also Att. A., at 1.
Dr. Cheshire examined plaintiffs hand, and found that plaintiff had a "deformity of the
fourth and fifth fingers; he was unable to straighten them ("contractures")."
observe any swelling or other inflammation of plaintiff s hand.
Dr. Cheshire did not
Cheshire Mem., Ex. 1 ^| 2. Dr.
Cheshire ordered an x-ray of plaintiffs hand which revealed old fractures of plaintiff s fourth and
fifth fingers, "consistent with an injury that was more than two months old." Id. ^ 4; see also id.
Att. B, at 1. Dr. Cheshire therefore concluded that plaintiffs injuries pre-dated his work-release
injury.
Cheshire Mem., Ex. 1 ^ 4.
Plaintiff consented to have his past medical records sent to Portsmouth.
See id. Alt. C.
These records revealed that on June 28, 2010, he had been examined by Dr. Andrew Caines after
an emergency room visit when "something had fallen on his hand."2 See id. Att. D, at
unnumbered page 1. Caines diagnosed plaintiff as suffering from an "impacted comminuted
distal one-third right fifth metacarpal facture." Id. Caines reported that plaintiff had limited
range of motion in his right little finger, and placed his hand in a splint. Id. at unnumbered pages
1-2. The next day, plaintiff followed up with Dr. Richard Knauft, who took x-rays of plaintiff s
hand and diagnosed a fracture in his little finger.
Id. at unnumbered page 3. On July 6, 2010,
plaintiff received a follow up x-ray, which showed that his finger was healing well.
Id. at
unnumbered page 5.
Plaintiffs medical records further showed that he had returned to Dr. Knauft on August 24,
2010, after reinjuring his right hand while moving furniture.
Icf at unnumbered page 6. Knaufl
diagnosed plaintiff with an additional fracture to his little finger, and placed the finger in a cast.
Id. On April 21, 2011, plaintiff returned to Knauft after injuring his hand a third time. Id. at
unnumbered page 8. Knauft again took x-rays and diagnosed plaintiff with a fracture of his little
and index fingers.
his ring finger.
Knauft also indicated that plaintiff had "a relatively undisplaced fracture" of
Id at unnumbered pages 8-9.
After reviewing this information, along with the findings of the December 27, 2013 x-ray,
Dr. Cheshire "ruled out an acute fracture or any injury associated with the October 2013 incident
as a cause of the deformities to [plaintiffs] hand." Cheshire Mem., Ex. 1 H 10.
Dr. Cheshire
1Plaintiff states that Cheshire also ordered "isolation." Compl., at 5. Dr. Cheshire does not
discuss such an order in his affidavit, nor does he indicate that he has any authority to transfer
inmates to isolation.
" It is unclear from the records whether plaintiff was incarcerated at this lime.
suspected that plaintiffs difficulty moving his fingers was caused by Dupuytren's Contracture,
which is a non-life threatening inherited disorder that affects the flexibility of finger joints. Id. ^|
11. Plaintiff was transferred from Portsmouth to Hampton Roads before Dr. Cheshire could
discuss this condition with him.
Id.
B. Standard of Review
"The court 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." Fed. R.
Civ. P. 56(a).
appropriate.
The moving party bears the burden of proving that judgment as a matter of law is
See Celotex Corp. v. Catretl, 477 U.S. 317, 323 (1986). To meet that burden, the
moving party must demonstrate that no genuine issues of material fact are present for resolution.
Id. at 322.
Once a moving party has met its burden to show that it is entitled to judgment as a
matter of law, the burden shifts to the nonmoving party to poinl out the specific facts that create
disputed factual issues. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). The
nonmoving party must present some evidence, other than its initial pleadings, to show that there is
more than just a "metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Celotex, 477 U.S. at 324 (quoting Rule
56(e)) ("Rule 56(e). . . requires the nonmoving party to go beyond the pleadings and by her own
affidavits, or by [other evidence] designate 'specific facts showing that there is a genuine issue for
trial.'"). In evaluating a motion for summary judgment, a district court should consider the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences
from those facts in favor of that party.
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Those facts which the moving party bears the burden of proving are facts which are
material. "[T]he substantive law will identify which facts are material.
Only disputes over facts
which 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.
An issue of material fact is genuine
when, "the evidence . . . create[s] [a] fair doubt; wholly speculative assertions will not suffice."
Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), abrogated on other grounds
by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Therefore, summary judgment is
appropriate only where no material facts are genuinely disputed and the evidence as a whole could
not lead a rational fact finder to rule for the nonmoving party.
Matsushita Elec. Indus. Co.,475
U.S. at 587.
C. Analysis
Summary judgment in favor of defendant Dr. Cheshire is appropriate because the
pleadings, affidavits, and exhibits on file demonstrate that Dr. Cheshire did not show deliberate
indifference to plaintiffs serious medical needs.
1. Eighth Amendment Standard
To prevail on a claim of deliberate indifference to serious medical needs, a plaintiff "must
allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical
needs." Estelle v. Gamble, 429 U.S. 97, 105 (1976); see also Staples v. Va. Dep't of Corr., 904 F.
Supp. 487, 492 (E.D. Va. 1995). Thus, a plaintiff must satisfy two distinct elements to show that
he is entitled to relief. First, he must provide evidence that he suffered from a sufficiently serious
medical need.
A medical need is "serious" if it has been diagnosed by a physician as mandating
medical treatment, or if a lay person would recognize the need for medical treatment.
See Iko v.
Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (quoting Henderson v. Sheahan. 196 F.3d 839, 846 (7th
Cir. 1999)); see also Cooper v. Dyke, 814 F.2d 941, 945-46 (4th Cir. 1987) (determining that
intense pain from an untreated bullet wound is sufficiently serious); Brown v. District of
Columbia, 514 F.3d 1279, 1284 (D.C. Cir. 2008) (concluding that the -intense and often
relentless pain" associated with untreated gallstones is sufficiently serious); but see Flail v.
Holsmith, 340 F. App'x 944, 947 & n.3 (4th Cir. 2009) (holding that flu-like symptoms did not
constitute a serious medical need).
Second, a plaintiff must show that the defendant acted with deliberate indifference to his
serious medical need.
To act with deliberate indifference, a defendant "must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference."
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
An assertion of
mere negligence or malpractice is not enough to state a constitutional violation; instead, plaintiff
must allege and demonstrate "[deliberate indifference ... by either actual intent or reckless
disregard." Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled in part by Farmer. 511
U.S. 825; see also Estelle, 429 U.S. at 106.
In other words, a plaintiff must show that defendant's
actions were "[sjo grossly incompetent, inadequate, or excessive as to shock the conscience or to
be intolerable to fundamental fairness." Miltier, 896 F.2d at 851 (citations omitted). To act with
deliberate indifference, a defendant must have actual knowledge of the potential risk of harm to an
inmate; the mere fact that the defendant should have known of the risk is not sufficient to
constitute deliberate indifference.
See, e.g.. Young v. City of Mt. Ranier, 238 F.3d 567, 575-76
(4th Cir. 2001); Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) ("Deliberate indifference is a
very high standard - a showing of mere negligence will not meet it.").
2. Analysis
It is clear from the facts presented that Dr. Cheshire responded reasonably to plaintiffs
complaints of an injury to his hand.
When plaintiff initially met with Dr. Cheshire, he indicated
that any pain caused by his nearly two-month old injury had subsided. Nevertheless, Dr. Cheshire
examined plaintiffs hand and ordered that x-rays be taken. The x-rays showed that plaintiff had
suffered previous fractures to his right hand. When Dr. Cheshire learned that plaintiffs past
medical history supported the x-ray findings, he concluded that plaintiff was not suffering from a
serious injury and did not require any more extensive treatment. This decision was reasonable
based on Dr. Cheshire's medical judgment. See, e.g.. Snipes v. DeTella, 95 F.3d 586, 592 (7th
Cir. 1996) ("Whether and how pain associated with medical treatment should be mitigated is for
doctors to decide free from judicial interference, except in the most extreme situations."). The
record shows that Dr. Cheshire's treatment was motivated by his conclusion that plaintiff was not,
in fact, suffering from a serious physical injury.
Such treatment does not constitute deliberate
indifference. To act with deliberate indifference, a medical doctor must "actually . . . recognizef]
that [their] actions [are] insufficient" to protect plaintiff from a known risk of harm. Parrish ex
rel. Lee v. Cleveland. 372 F.3d 294, 303 (4th Cir. 2004) (citing Brown v. Harris, 240 F.3d 383,
390-91 (4th Cir. 2001)).
Plaintiff disagrees with Dr. Cheshire's conclusion that his pain was caused by an old
injury. See Compl., at 5 ("(I did break my hand in 2008, but it had since healed properly.) This
is a new injury.") (emphasis in original).
Plaintiff also states that Dr. Cheshire ordered him to
see a specialist, but that he never received an appointment. See id. Even if Dr. Cheshire did
initially order a visit to a specialist which was then cancelled, plaintiffs allegations do not create a
disputed issue of material fact. Based on the information presented to Dr. Cheshire - namely, that
plaintiff had injured his hand nearly two months before and had previously suffered several
injuries to the same hand - he provided adequate treatment for plaintiffs medical needs.
Plaintiffs disagreement with Dr. Cheshire about the cause of his injury and the correct course of
treatment for that injury is insufficient to establish deliberate indifference.
Wright v. Collins. 766
F.2d 841, 849 (4th Cir. 1985) (citing Gittlemacker v. Prasse. 428 F.2d 1. 6 (3d Cir. 1970)).
In addition, because the evidence shows that when plaintiff first met with Dr. Cheshire he
was no longer experiencing severe pain from his most recent injury, see, e.g., Cheshire Mem., Ex.
1, Att. A., at 1, it is clear that Cheshire did not ignore any complaints of serious pain, as plaintiff
himself did not have any such complaints. That plaintiff later suffered from pain in his injured
hand is irrelevant to the analysis of whether Dr. Cheshire, at the time that he provided medical
treatment, was deliberately indifferent to plaintiffs medical needs. Absent the actual knowledge
that plaintiff suffered from a severe medical need, he cannot be liable under the Eighth
7
Amendment.
Lastly, the record shows that plaintiff was transferred from Dr. Cheshire's facility less than
a month after he first complained of any problem with his hand.
Because it is clear from the
record that Dr. Cheshire did not ignore plaintiffs complaint about his hand, he did not violate
plaintiffs Eighth Amendment rights. Therefore, Dr. Cheshire's Motion for Summary Judgment
is meritorious.
IV. Dr. Kolongo's Motion to Dismiss
A. Background
Plaintiff arrived at Hampton Roads on January 24, 2014.
examined plaintiffs hand and ordered physical therapy.
Id.
Compl., at 5.
Dr. Kolongo
Plaintiff states that he also met
with another doctor who ordered a visit to a specialist, but it does not appear that he ever saw a
specialist.
Id.
Plaintiff alleges that the physical therapy ordered by Dr. Kolongo "proved to be
quite useless," that the physical therapist told him that he needed to have his hand re-set and that
he continues to suffer from "limited usage of [his] hand," and suffers from "constant pain and
dilemmas."
Id.
B. Standard of Review
When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
court must presume that all factual allegations in the complaint are true, and must draw all
reasonable inferences in the plaintiffs favor.
See, e.g., Burbach Broadcasting Co. of Del, v.
Elkins Radio Corp., 278 F.3d 401, 406 (4th Cir. 2002). Therefore, a court may not dismiss a
complaint if the plaintiff pleads any plausible set of facts that would entitle him to relief. See,
e.g., Conlev v. Gibson, 355 U.S. 41, 45-46 (1957). A claim has plausibility if the plaintiff alleges
sufficient facts by which a court could reasonably infer the defendant's liability. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009 (citing Bell Atlantic v. Twomblv. 550 U.S. 544, 556 (2007)). To
meet this standard, however, the plaintiff must do more than simply allege "threadbare recitals of
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the elements of a cause of action, supported by mere conclusory statements . . . ." Id. (citing
Twomblv, 550 U.S. at 555)), but must allege facts that show more than a "mere possibility of
misconduct" by the defendant.
Id. at 679.
Although p_ro se prisoners must meet the plausibility standard to withstand a Rule 12(b)(6)
motion, complaints filed by prisoners are held "to less stringent standards than formal pleadings
drafted by lawyers . .. ." Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Even under this lower
standard, however, a pro se plaintiff must still plead facts sufficient to state a plausible claim for
relief.
See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
C. Analysis
The crux of plaintiff s claim against Dr. Kolongo is that he ordered treatment - in the form
of physical therapy - which plaintiff claims was "useless." Plaintiff has not alleged any facts,
however, to establish that Dr. Kolongo was objectively aware of a serious risk of physical harm,
and deliberately ignored such a risk by ordering physical therapy.
As stated above, a defendant
only acts with deliberate indifference if he ignores a plaintiffs serious medical needs. Medical
malpractice and negligence do not state a constitutional violation.
See, e.g., Grayson. 195 F.3d at
695. Therefore, even if Dr. Kolongo misinterpreted the extent of plaintiff s injuries and provided
inadequate treatment, such treatment does not constitute deliberate indifference. "A prison
official is not liable if'he knew the underlying facts but believed (albeit unsoundly) that the risk to
which the facts gave rise was unsubstantial or non-existent.'" Johnson v. Quinones, 145 F.3d
164, 167 (4th Cir. 1998) (quoting Farmer. 511 U.S. at 844).
On the contrary, it is clear from plaintiffs complaint that Dr. Kolongo ordered physical
therapy. That plaintiff found this treatment to be "useless" does not establish that the treatment
amounted to deliberate indifference, as a doctor is not constitutionally required to provide a
specific type of treatment.
See, e.g.. Snipes, 95 F.3d at 592.
The Constitution also does not
require a doctor to remedy all of plaintiffs complaints of pain. See id. ("To say the Eighth
Amendment requires prison doctors to keep an inmate pain-free in the aftermath of proper medical
treatment would be absurd.
It would also be absurd to say ... that the Constitution requires prison
doctors to administer the least painful treatment."). Plaintiffs allegations do not establish that
Dr. Kolongo's treatment violated the Eighth Amendment, and plaintiff has not bothered to respond
to the defendant's Motion to Dismiss, thereby leaving the arguments in that motion uncontested.
Accordingly. Dr. Kolongo's Motion to Dismiss will be granted.
V. Conclusion
For the above-stated reasons, Dr. Cheshire's Motion for Summary Judgment and Dr.
Kolongo's Motion to Dismiss will be granted. An appropriate Order shall issue.
Entered this
Q
day of
2015.
Is! I
Leonie M. Brinkema
Alexandria, Virginia
United States District Judge
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