Trisler v. Prison Health Services, Inc. et al

Filing 43

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 2/28/13. Copy sent: Yes(tdai, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

JASON TRISLER,
Plaintiff,
Civil Action No. 3:11CV343-HEH
PRISON HEALTH

SERVICES, INC., et al,
Defendants.
MEMORANDUM OPINION

(Granting Elam's and Jenkins's Motion for Summary Judgment)
Jason Trisler, a former Virginia prisoner proceeding pro se and informa pauperis,

brings this action pursuant to 42 U.S.C. § 1983.1 Trisler alleges that during his
incarceration atHaynesville Correctional Center ("Haynesville") the defendants2 failed to
ensure that he receive adequate medical care for his abdominal and umbilical hernias.
The matter is before the Court on the Motion for Summary Judgment filed by Defendants

Elam and Jenkins. Defendants Elam and Jenkins provided Trisler with the appropriate

1The statute provides, in pertinent part:
Every person who, under color of any statute ... of any State ... subjects,
or causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law....

42 U.S.C. §1983.

Trisler named a dozen individuals and entities as defendants in his Complaint.

Roseboro3 notice for their Motion for Summary Judgment. (ECF No. 34.) Nevertheless,
Trisler failed to file a response. The matter is ripe for disposition.
I. Summary of Claims against Defendants Jenkins and Elam

Trisler's Complaint spans 138 paragraphs. Only a few of his factual allegations
pertain to Defendants Jenkins and Elam. Specifically, Trisler's claims against Defendant
Jenkins flow from her alleged failure to provide appropriate care for his abdominal hernia

on December 14, 2008. (Compl. fflf 46-49.) Trisler's claims against Defendant Elam
arise from her alleged failure, on April 28, 2009, to provide appropriate medical care for
Trisler's surgical incision. (Id. ffif 73-79.) Trisler's claims against Defendants Jenkins
and Elam are best summarized as follows:

Claim 1

Defendant Jenkins violated Trisler's rights under the Eighth

Amendment4 by failing to provide appropriate medical care for
Trisler's abdominal hernia on December 14, 2008. (Id. ^ 134.)
Claim 2

Defendant Elam violated Trisler's rights under the Eighth
Amendment when she failed to provide appropriate medical

attention for his surgical incision on April 28, 2009.5 (Id. ^ 136.)
Claim 3

Defendants Jenkins and Elam violated Trisler's right to be free from

cruel and unusual punishment under the Virginia Constitution6 by
their failure to provide appropriate medical care on the dates
specified in Claims 1 and 2. (Id. 1fl[ 134, 136.)

3Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
4"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const, amend. VIII.

5On April 27,2008, Trisler underwent surgery for repair ofanumbilical hernia.
6"That excessive bail ought not to be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted...." Va. Const. Art. 1, § 9.

Claim 4

"The defendants' action or inaction ... constituted the state law tort

of [(a)] civil conspiracy, [(b)] gross negligence, [(c)] breach of
contract, and [(d)] intentional infliction of emotional distress."
(Id. U137.) Additionally,
by enacting and implementing the Utilization Management
provisionof OP 720.2 which instructs an offender's treating
physician that DO NOT write in the medical record Request
denied by UM, Please use terms such as alternative treatment
recommended, [(e)] the defendants['] actions constituted the
state tort of actual or constructive fraud.

(Id. H 138 (internal quotation marks omitted).)
The Court notes Defendants Elam and Jenkins failed to address Claim 3 in their

Motion for Summary Judgment. Under 28 U.S.C. § 1915(e)(2), however, this Court may
summarily dismiss claims as legally frivolous where the relevant statute of limitations
bars the claim. See Lawrence v. Cooper, 398 F. App'x 884, 887 (4th Cir. 2010) (citing
Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655-56 (4th Cir. 2006); Nasim v. Warden, Md.

House ofCorr., 64 F.3d 951, 956 (4th Cir. 1995)). Such circumstances exist here.

The pertinent statute provides:
No person confined in a state or local correctional facility shall bring
or have brought on his behalf any personal action relating to the conditions
of his

confinement

until

all

available

administrative

remedies

are

exhausted. Such action shall be brought by or on behalf of such person
within one year after cause of action accrues or within six months after all
administrative remedies are exhausted, whichever occurs later.

Va. Code Ann. § 8.01-243.2 (West 2012). Trisler filed his Complaint on November 30,

2010.7 (Compl. 1f 27.) Trisler's Virginia constitutional claims against Defendants Elam

7This is the date Trisler executed his Complaint and presumably placed itinthe prison
mailing system. Thus, that date becomes the date this Court deems the Complaint filed. See
Houston v. Lack, 487 U.S. 266,276 (1988).

and Jenkins accrued, at the latest, on April 29, 2009, when Defendant Elam allegedly

failed to provide appropriate medical care. Trisler failed to file his Complaint within one
year of that date. Accordingly, Trisler will be directed to show good cause within fifteen
(15) days of the date of entry hereof why Claim 3 should not be dismissed as barred by
the relevant statute of limitations. Essentially, Trisler must demonstrate under a summary
judgment standard that the statute of limitations fails to bar Claim 3. See Ruteckiv. CSX
Hotels, Inc., 290 F. App'x 537, 542 (4th Cir. 2008) (acknowledging a court's inherent

authority to sua sponte grant summary judgment after providing notice to affected party
that they must come forward with his or her evidence (citing Hughes v. Bedsole, 48 F.3d

1376, 1379 (4th Cir. 1995))). Thus, to the extent Trisler contends he filed the Complaint
within six months of exhausting his administrative remedies, he must substantiate that

fact with copies of the pertinent grievance material, an affidavit, or other available

evidence that indicates the timeliness ofClaim 3.8 Failure to file an appropriate response
will result in the dismissal of Claim 3. See Fed. R. Civ. P. 41(b).
II. Standard for Summary Judgment
Summary judgment must be rendered "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). The party seeking summaryjudgment bears the
An affidavit is a sworn statement of facts made on personal knowledge, and affidavits
may be submitted by Trisler or any other witnesses. There are two alternative ways to submit an

affidavit to the Court, one of which must be followed. One way is for the personmaking the
affidavit to sign the affidavitand swear to the truth before a notary public. The other way, which
does not require a notary public, is for the person making the affidavit to sign the affidavit and
certifythat he or she signs under penalty of perjury and understands that he or she may be
prosecuted if the facts he or she sets forth are untrue.

responsibility of informing the Court of the basis for the motion and identifying the parts
of the record which demonstrate the absence of a genuine issue of material fact. See

Celotex Corp. v. Catrett, All U.S. 317, 323 (1986). "[W]here the nonmoving party will
bear the burden of proof at trial on a dispositive issue, a summary judgment motion may
properly be made in reliance solely on the pleadings, depositions, answers to
interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted).
When the motion is properly supported, the nonmoving party must go beyond the
pleadings and, by citing affidavits or '"depositions, answers to interrogatories, and
admissions on file,' designate 'specific facts showing that there is a genuine issue for
trial.'" Id. (quoting former Fed. R. Civ. P. 56(c), (e) (1986)). In reviewing a summary

judgment motion, the Court "must draw all justifiable inferences in favor of the
nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th
Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., All U.S. 242, 255 (1986)). However,
a mere '"scintilla of evidence'" will not preclude summary judgment. Anderson, All
U.S. at 251 (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442,448 (1872)).
Moreover, not all disputes of fact preclude summary judgment. Instead, "the

requirement is that there be no genuine issue of material fact." Id. at 248. With respect
to materiality, "[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." Id. As to
genuineness, the nonmoving party "must produce ... evidence that creates a fair doubt;
wholly speculative assertions will not suffice." Bongam v. Action Toyota, Inc.,

14 F. App'x 275, 280 (4th Cir. 2001) (citation omitted) (internal quotation marks
5

omitted). "A motion for summary judgment may not be defeated by evidence that is
'merely colorable' or 'is not sufficiently probative.'" M& MMed. Supplies & Serv., Inc.
v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1993) (quotingAnderson, All
U.S. at 249-50). Thus, the nonmoving party cannot '"create a genuine dispute of fact

through mere speculation.'" Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008)
(quoting Beale v. Hardy, 769 F.3d 213, 214 (4th Cir. 1985)). Nor will mere
"'metaphysical doubt as to the material facts'" create a genuine dispute. Id. (quoting
Matsushita Elec. Indus. Co. v. ZenithRadio Corp., 475 U.S. 574, 586 (1986)).

Accordingly, "[t]he nonmovant can show that a dispute is genuine only if it provides
sufficient evidence so that a 'reasonable jury could return a verdict for the nonmoving

party.'" Wiggins v. DaVita Tidewater LLC, 451 F. Supp. 2d 789, 796 (E.D. Va. 2006)
(quoting Anderson, All U.S. at 248).
In support of their Motion for Summary Judgment, Defendants Elam and Jenkins

submitted their respective affidavits (Mem. Supp. Mot. Summ. J. Ex. A ("Jenkins Aff.),9
Ex. B ("Elam Aff.")) and copies of Trisler's pertinent medical records. Trisler's failure
to respond to the Motion for Summary Judgment permits the Court to rely solely on the
submissions of Elam and Jenkins in deciding the Motion for Summary Judgment. See
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) ('"Rule 56 does not impose upon the

district court a duty to sift through the record in search of evidence to support a party's

9The affidavit Defendant Jenkins submitted with her Motion for Summary Judgment
failed to bear a signature. On May 30, 2012, Defendant Jenkins submitted an executed affidavit.
(ECF No. 32.)

opposition to summary judgment.'" (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d

909, 915 & n.7 (5th Cir. 1992))).10 Accordingly, the Court deems the facts set forth
below established for purposes of the present Motion for Summary Judgment.
III. Pertinent Undisputed Facts with Respect to Defendant Jenkins

In 2008, Defendant Jenkins worked as a licensed practical nurse at Haynesville.

(Jenkins Aff. fflf 1-2.) On Sunday, December 14, 2008, at 12:30," Trisler appeared in the
medical department and complained to Defendant Jenkins of pain in his abdomen related

to a hernia. (Id. ^ 2.) Trisler reported his last bowel movement had occurred two days
ago. (Id.) Defendant Jenkins noted Trisler's history of a hernia and that on December 5,

2008, the physician had requested for Trisler to have hernia surgery. (Id.) Nothing in

10 The Court notes that Trisler swore to the truth ofthe contents ofhis Complaint.
(Compl. H27.) Nevertheless, the facts offered by an affidavit or a sworn statement must be in

the form of admissible evidence. See Fed. R. Civ. P. 56(c)(4). In this regard, the statementin
the affidavit or sworn declaration "must be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or declarantis competentto testify on the
matters stated." Id. Moreover, "summaryjudgment affidavits cannot be conclusory or based
upon hearsay." Evans v. Techs. Applications &Serv. Co., 80 F.3d 954,962 (4th Cir. 1996)
(internal citations omitted).

Trisler's account of his interactions with Defendant Jenkins and his subsequent medical
care largely squares with Defendant Jenkins's statements, except in those instances where

Trisler's account runs afoul of the above-referenced principles for proper summary judgment
evidence. For example, Trisler fails to demonstrate he "is competentto testify," Fed. R. Civ. P.
56(c)(4), as to Defendant Jenkins's stateof mind (see, e.g., Compl. ^ 48) or opine what
constitutes "obvious symptoms of the incarceration or strangulation of the hernia." (Id. ^47); see
Pearson v. Ramos, 237 F. 3d 881, 886 (7th Cir. 2001) (citing cases for the proposition that a
prisoner "wholly lacking in medical knowledge" is incompetent to provide expert medical
evidence). Nevertheless, no need exists to catalog the entirety of inadmissible evidence
previously submitted by Trisler because he fails to direct the Court to any evidence, such as his
Complaint, that he wishes the Court to considerin opposition to the Motion for Summary
Judgment. See Fed. R. Civ. P. 56(c)(3) (explaining that "[t]he court need consider onlythe cited
materials" in deciding a motion for summary judgment).

11 The record fails to indicate whether this visit occurred in the early morning or the early
afternoon.

Trisler's chart "indicated] that he had reported to medical with complaints of

constipation or abdominal pain immediately preceding his visit with" Defendant Jenkins
on December 14,2008. (Id.)

Defendant Jenkins took Trisler's vital signs which registered as normal. (Id.)
Defendant Jenkins "believed that [Trisler] had constipation and treated him in accordance

with the nursing protocols. [She] gave him mineral oil, 30 cc, Milk of Magnesia 440 mg,
Bisacodyl which is a laxative, and Motrin for pain." (Id.) Defendant Jenkins "advised
Trisler that if he had any continuing problems to report back to medical the following day

when the doctor would be available to assess him." (Id.)12
On December 15, 2008, Trisler returned to the medical department. (Id. ^ 3.)
After the physician examined Trisler, the physician admitted Trisler to the infirmary and
prescribed Magnesium Citrate, a laxative. (Id.) After three hours, the physician noted
that Trisler had nausea and vomiting, but had not had a bowel movement. (Id.) At that

time, the physician sent Trisler "to the hospital to rule out an incarcerated hernia/acute

abdomen." (Id.)n
Defendant Jenkins swears, "Trisler's clinical presentation did not indicate to [her]
that [Trisler] had an emergency condition that required emergency medical treatment."

(Id. \ 4.)14 When Defendant Jenkins saw Trisler "on December 14, 2008, his vital signs
No physician worked at Haynesville on Sunday. (Jenkins Aff. *\ 2.)

In his Complaint, Trisler states that, at the hospital, he underwent emergency surgery to
repair his hernia. (Compl. ^ 56.)

14 The Court notes that in his Complaint, Trisler swears that when Defendant Jenkins
examined him his hernia was visible "by virtue of the enlarged protrusion in Trisler's abdomen."
8

were normal and his symptoms were consistent with constipation, a non-emergent
condition, and one which [she was] authorized by the physician to treat in the manner that
[she] did." (Id.)

V. Pertinent Undisputed Facts with Respect to Defendant Elam

Trisler predicates his claims against Defendant Elam on the possibility that she

examined him on April 28, 2009 and then declined to change his bandage. Defendant
Elam, however, "did not examine or treat Trisler on April 28,2009. The notations in
[Trisler's] medical chart on that day were made by staff other than [Defendant Elam]."

(Elam Aff. ^4.)15 Thus, Trisler fails to demonstrate that Defendant Elam bore any
responsibility for Trisler's medical care.

(Compl. 147.) No dispute exists as to whether Trisler hada hernia. And, as previously noted,
Trisler fails to direct the Court to competent medical evidence reflecting such an enlarged
protrusion indicated Trisler's hernia had evolved to an emergency condition. See Pearson v.
Ramos, 237 F. 3d 881, 886 (7th Cir. 2001).

15 On April 27,2009, Trisler underwent surgery for the repair ofan umbilical hernia.
(Compl. U72.) OnApril 28,2009, Trisler went to the Haynesville Medical Department "to
report that he wasexperiencing excessive drainage of blood in the surgical incision site."
(Id. U73.) Trisler avers that he "was examined on that occasion in the Haynesville medical

department by Nurse Elam orNurse Jane Doe who noted dried blood onthe dressing covering
the incision site or surgical wound." (Id. H74.) "Nurse Elam or Nurse Jane Doe refused to

change the dressing or provide anymedical care to stop theexcessive drainage or refer Trisler to
a physician." (Id. ^ 75.) Trisler later contracted an infection which required further treatment at
the hospital. (Id. H82.) Even if the Court considered the above statements, Trisler's guess as to
the identity of the nurse who examined him on April 28,2009 is too ambiguous to generate a
genuine dispute of fact or to allow a reasonable jury to find in his favor. See M &MMed.
Supplies &Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1993) ("A
motion for summary judgmentmay not be defeated by evidence that is 'merely colorable' or 'is
not sufficiently probative.'" (quotingAnderson v. Liberty Lobby, Inc., All U.S. 242,249-50
(1986))).

VI. ANALYIS

A.

Eighth Amendment Claims

In order to survive summary judgment, Trisler must demonstrate that Defendants
Jenkins and Elam acted with deliberate indifference to his serious medical needs. See

Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001). A medical need is "serious" if it

'"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 v.
Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (quoting Henderson v. Sheahan, 196 F.3d 839,
846 (7th Cir. 1999)).

The subjective prong of a deliberate indifference claim requires the plaintiff to
demonstrate that a particular defendant actually knew of and disregarded a substantial
risk of serious harm to his or her person. See Farmer v. Brennan, 511 U.S. 825, 837

(1994). "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) (citing Estelle v.
Gamble, 429 U.S. 97, 105-06 (1976)).

[A] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or safety; the
official 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, 511 U.S. at 837. Farmer teaches "that general knowledge of facts creating a

substantial risk of harm is not enough. The prison official must also draw the inference
between those general facts and the specific risk of harm confronting the inmate."

10

Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir. 1998) (citing Farmer, 511 U.S. at 837;
Rich v. Bruce, 129 F.3d 336, 340 (4th Cir. 1997)). Thus, to survive a motion for
summary judgment, the deliberate indifference standard requires a plaintiff to
demonstrate that "the official in question subjectively recognized a substantial risk of

harm" and "that his actions were 'inappropriate in light of that risk.'" Parrish ex rel. Lee
v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (quoting Rich, 129 F.3d at 340 n.2).
1.

Defendant Jenkins

In Claim One, Trisler contends Defendant Jenkins failed to provide appropriate
medical care for his abdominal hernia when she examined him on December 14, 2008.

At that time, Defendant Jenkins knew Trisler had a hernia that prison physicians planned

to surgically repair on a non-emergency basis.16 The record, however, fails to indicate
that Defendant Jenkins subjectively perceived that Trisler's discomfort resulted from a

16 The parties failed to provide expert evidence with respect to the risks associated with
Trisler's hernias. See Webb v. Hamidullah, 281 F. App'x 159,166-67 (4th Cir. 2008)
(observing that "a delay with respect to herniasurgery does not necessarily constitute deliberate
indifference absent some resultant harm or a worsened condition;" discussing situations
involving significant delays). The United States Court of Appeals for the Seventh Circuit
observed:

[T]here are three types of hernia situations: (1) a hernia that is strangulated,
which is a medical emergency mandating surgery; (2) a hernia that is reducible
yet so painful or debilitating that surgery is required; and (3) a hernia that is
reducible and, given the dangers and risks inherent in any operation, can be
treated through non-surgical means.

Johnson v. Doughty, 433 F.3d 1001,1014 (7th Cir. 2006).
11

deterioration of his abdominal hernia, rather than gas and constipation.

1*7

See Quinones,

145 F.3d at 168-69 (concluding physician's misdiagnosis failed to support a claim of
deliberate indifference); Webb, 281 F. App'x at 166-67. Defendant Jenkins's

contemporaneous statements to Trisler reflecting her diagnosis and prescription of
medication to treat gas and constipation provide direct evidence of her subjective state of
mind, reflecting that she failed to perceive a deterioration of Trisler's hernia as the cause
for his discomfort. See Mata v. Saiz, All F.3d 745, 760 (10th Cir. 2005).
Trisler fails to adduce evidence from which a reasonable trier of fact could

conclude that Defendant Jenkins's actions amounted to deliberate indifference. See

Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990) ("To establish that a health care
provider's actions constitute deliberate indifference to a serious medical need, the

treatment must be so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness." (citing Rogers v. Evans, 792
F.2d 1052,1058 (11th Cir. 1986))). Although it is unfortunate that Defendant Jenkins

misdiagnosed the cause of Trisler's pain, such an error fails to support an Eighth
Amendment claim. See Quinones, 145 F.3d at 168-69 ("Without evidence that the
doctors 'bridged the gap' between the symptoms and the tumor itself, Johnson cannot
survive summary judgment."); see also Farmer, 511 U.S. at 838 ("[A]n official's failure

to alleviate a significant risk that he [or she] should have perceived but did not, while no

1V

The fact that the physician, who had significantly more medical training than
Defendant Jenkins, also initially diagnosed Trisler as suffering from gas and constipation the
following day, supports the reasonableness of Defendant Jenkins's initial diagnosis.
12

cause for commendation, cannot under our cases be condemned as the infliction of

punishment."). Accordingly, Claim One will be dismissed.
2.

Defendant Elam

Trisler fails to direct the Court to any evidence that demonstrates Defendant
Elam's involvement with his medical care, much less any deliberate indifference on her
part. Accordingly, Claim Two will be dismissed.
B.

Remaining State Law Claims
1.

Civil Conspiracy

"In Virginia, the elements of a common law civil conspiracy claim are (i) an

agreement between two or more persons (ii) to accomplish an unlawful purpose or to

accomplish a lawful purpose by unlawful means, which (iii) results in damage to
plaintiff." Firestone v. Wiley, 485 F. Supp. 2d 694, 703 (E.D. Va. 2007) (citing Glass v.

Glass, 321 S.E.2d 69, 74 (1984)). Trisler predicates his conspiracy claim upon the belief
that all of the defendants reached an agreement to deny elective surgical procedures for
inmates within the VDOC. Specifically, Trisler alleges,

By implementation of the Utilization Management provision of OP 720.2
which, upon information and belief, states that "Elective surgical
procedures for offenders will not be approved," all the named defendants
deliberately and knowingly denied, and continue to deny, non-life
threatening surgeries to Trisler and all offenders in the custody of the
VDOC.

(Compl. If 116 (emphasis added).) Trisler, however, fails to direct the Court to any
admissible evidence to support his speculation that either Defendant Elam or Jenkins
reached any such agreement. See Fed. R. Civ. P. 56(c)(3) (emphasizing that "[t]he court

13

I Q

need consideronly the cited materials" in deciding a motion for summary judgment).

Accordingly, Claim 4(a) againstDefendants Elam and Jenkins will be dismissed.
2.

Gross Negligence

Defendants Elam and Jenkins argue the Court should grant "summary judgment
on the gross negligence claim for the same reasons they are entitled to summary

judgmentwith respect [to] the Eighth Amendment deliberate indifference claim." (Mem.
Supp. Mot. Summ. J. 10 (citing Whitley v. Commonwealth, 538 S.E.2d 296, 299-300
(Va. 2000)). As reflected above, Trisler fails to demonstrate that DefendantElam had

any involvement in the provision of his medical care. Accordingly, Claim 4(b) will be
dismissed against Defendant Elam.

In Virginia, "[a] claim of gross negligence, which involves the 'absence of slight
diligence, or the want of even scant care,' will not lie if the defendant exercised some

degree of care with regard to the plaintiff." Whitley, 538 S.E.2d at 300 (quoting Colby v.
Boyden, 400 S.E.2d 184,189 (Va. 1991)). Here, the record reflects that Defendant
Jenkins exercised some degree of care with respect to Trisler. Defendant Jenkins did not

simply ignore Trisler's complaints on December 14,2008. Rather, she examined Trisler,
took his vital signs, inquired into Trisler's medical history, and asked about his last bowel
movement. (Jenkins Aff. If 2.) Defendant Jenkins then provided medication to ease
Trisler's discomfort and directed him to follow up the next day with the physician if his

18 The statements in Trisler's Complaint, regarding the existence of a conspiracy (see,
e.g., Compl. |U 116-17), fail to reflect his personal knowledge regarding any such conspiracy.
Hogge v. Stephens, No. 3:09CV582,2011 WL 2161100, at *2-3 & n.5 (E.D. Va. June 1,2011)
(treating sworn statements made upon information and belief as '"mere pleading allegations'"
(quoting Walker v. Tyler Cnty. Comm 'n, 11 F. App'x 270,274 (4th Cir. 2001))).
14

discomfortpersisted. (Id.) Such care by Defendant Jenkins defeats Trisler's claim of
gross negligence. See Whitley, 538 S.E.2d at 300; see also Kuykendall v. Young Life, 261
F. App'x 480,490-91 (4th Cir. 2008) (affirming grant of summary judgment based upon

defendant's safety precautions, observing "the standard for gross negligence is one of
indifference, not inadequacy"). Accordingly, Claim 4(b) will be dismissed.
3.

Breach of Contract

"The elements of a breach of contract action are (1) a legally enforceable

obligation of a defendant to a plaintiff; (2) the defendant's violation or breach of that
obligation; and (3) injury or damage to the plaintiff caused by the breach of obligation."
Filak v. George, 594 S.E.2d 610, 614 (Va. 2004) (citing Brown v. Harms, 467 S.E.2d
805, 807 (Va. 1996); Fried v. Smith, All S.E.2d 437,439 (Va. 1992); Westminster

Investing Corp. v. Lamps Unlimited, Inc., 379 S.E.2d 316, 317 (Va. 1989)). Trisler fails

to demonstrate that Defendants Elam and Jenkins had any contractual obligation to him.19
See Miller v. Quarles, 410 S.E. 2d 639, 641 (Va. 1991) (conceding no liability existed for
breach of contract claim against defendant, who failed to personally contract with

plaintiffs); Velocity Micro Inc. v. JAZMktg, Inc., Nos. 3:ll-cv-473, 3:12-cv-245,2012
WL 3948018, at *11 (E.D. Va. Sept. 10, 2012) (dismissing claims where defendant was
not a party to the contract). Accordingly, Claim 4(c) will be dismissed.

19 Trisler contends thatPrison Health Services, Inc., entered into a contract with the
VDOC to provide medical care to inmates. (Compl. U6.)
15

4.

Intentional Infliction of Emotional Distress

A claim for intentional infliction of emotional distress requires the plaintiffto
establish: "1) the wrongdoer's conduct was intentional or reckless; 2) the conduct was

outrageous or intolerable; 3) there was a causal connection between the wrongdoer's
conduct and the resulting emotional distress; and 4) the resulting emotional distress was

severe." Supervalu, Inc. v. Johnson, 666 S.E.2d 335, 343 (Va. 2008) (citations omitted).
Because Trisler fails to demonstrate Trisler's involvement with his medical or any

improper conduct on her part, Claim 4(d) against her fails to survive summary judgment.
Although the record reflects Defendant Jenkins's involvement in providing
medical care to Trisler, Trisler fails to demonstrate Defendant Jenkins acted recklessly or
intentionally in failing to diagnose the emergent nature of his hernia and provide
appropriate care. See supra Parts VI.A.2, VLB.2. Furthermore, Trisler fails to establish
that Defendant Jenkins acted in a sufficiently outrageous manner. See Coppage v. Mann,
906 F. Supp. 1025, 1049 (E.D. Va. 1995) (dismissing similar claim by inmate, explaining

that "the staff may well have delayed in treating [the plaintiff] or misdiagnosed him, but
they did provide him with some level of care"). Accordingly, Claim 4(d) will be
dismissed.
5.

Fraud

A party claiming actual fraud must prove by clear and convincing evidence: "(1) a

false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with
intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party
misled." Richmond Metro. Auth. v. McDevitt Street Bovis, Inc., 507 S.E.2d 344, 346-47
16

(Va. 1998)(quotingEvaluation Research Corp. v. Alequin, 439 S.E.2d 387, 390 (Va.
1994)). "Constructive fraud requires proof... 'that a false representation of a material

fact was made innocently or negligently, and the injured party was damaged as a result of
... reliance upon the misrepresentation.'" Id. at 347 (quoting Mortarino v. Consultant

EnggServ., A61 S.E.2d 778, 782 (Va. 1996)) (second omission in original).
Trisler charges all of the defendants with fraud or constructive fraud for

"implementing the Utilization Management provision of OP 720.2 which instructs an

offender's treating physician that DO NOTwrite in the medical record Request denied by
UM, Please use terms such as alternative treatment recommended." (Compl. J 138
(internal quotation marks omitted).) Trisler fails to demonstrate that either Defendant

Elam or Jenkins had any involvement with the implementation of the OP 720.2 or made

any false statements pursuant tothat provision.20 Accordingly, Claim 4(e) will be
dismissed. The motion for summary judgment (ECF No. 29) will be granted.
An appropriate Order shall accompany this Memorandum Opinion.

m

1st

HENRY E.HUDSON

Date: TvJL.a*,Eol3

UNITED STATES DISTRICT JUDGE

Richmond, Virginia

20 Indeed, Trisler fails to direct the Court to any evidence which reflects Defendants Elam
or Jenkins knowingly and intentionally made any false statement of a material fact.
17