Gilchrist v. Unknown

Filing 80

MEMORANDUM OPINION. See for complete details. Signed by Magistrate Judge Roderick C. Young on 03/31/2017. (mailed copy to pro se Plaintiff) (nbrow)

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

MAR 3 I 20!7
WILBERT GILCHRIST,
CLERK, U.S. DISTRICT COlJ:=!T
RICHMOND. VA

Plaintiff,

'----------··-

v.

Civil Action No. 3:14CV630

JOHN DOE, et al.,

Defendants.
MEMORANDUM OPINION

Wilbert Gilchrist, a Virginia inmate proceeding pro se and in forma pauperis, filed this
42 U.S.C. § 1983 action. 1 By Memorandum Opinion and Order entered on January 27, 2016, the
Court dismissed all claims in the action against all Defendants except for Claim One against
Defendants Edson and Doe and Claim Two against Defendant M. Oslin. Gilchrist v. Kiser, No.
3:14CV630, 2016 WL 354752, at *4 (E.D. Va. Jan. 27, 2016). Subsequently, Gilchrist identified
Defendant Doe to be Defendant Lard. (ECF No. 45, at 5.) By Memorandum Opinion and Order
entered on July 11, 2016, the Court granted the Motion for Summary Judgment filed by
Defendant Oslin, dismissed Claim Two, and dismissed all claims against Defendant Edson
without prejudice because of Gilchrist's failure to serve him. Gilchrist v. Doe, No. 3:14CV630,
2016 WL 3766313, at *5 (E.D. Va. July 11, 2016). This matter is before the Court on Defendant
1

The 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.

Lard's Motion for Summary Judgment. (ECF No. 71). Gilchrist has responded. (ECF No. 77.)
For the reasons stated below, Defendant Lard's Motion for Summary Judgment will be
GRANTED.
I.

SUMMARY OF ALLEGATIONS

In his Particularized Complaint,2 Gilchrist alleges the following with regard to Defendant
Lard:
Dr. [Lard] exercised deliberate indifference to plaintiffs multiple internal
stomach illness[es] by failing to provide adequate medical internal testing and
outside examination by a stomach specialist (gastroenterologist). [Dr. Lard]
intentionally refused to fulfill any of plaintiffs requests for follow-up care with
[a] gastroenterologist. As a result of ... Dr. [Lard's] deliberate indifference to
plaintiffs internal condition, plaintiff suffer[ed] further pain internally as well as
mental anguish. He continue[s] to suffer daily from internal bleeding from his
rectum off and on as well as several other internal painful daily symptoms.
(Part. Campi. 2, ECF No. 30 (paragraph numbers omitted).) The Court previously construed
Gilchrist to raise the following claim for relief against Defendant Lard:
Claim One:

Defendant Lard was deliberately indifferent to Gilchrist's stomach
condition by:
(a) "failing to provide adequate medical internal testing" (id); and,
(b) failing to send Gilchrist to a gastroenterologist.

(See ECF No. 34, at 5.) Gilchrist seeks an unspecified amount of damages.

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 summary judgment bears the responsibility of informing the
Court of the basis for the motion and identifying the parts of the record which demonstrate the
2

The Court employs the pagination assigned to the Particularized Complaint by the CM/ECF
docketing system. The Court corrects the punctuation, spelling, and capitalization and omits the
emphasis in quotations from the Particularized Complaint.
2

absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 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., 477 U.S. 242, 255 (1986)). However, a mere "'scintilla of evidence"' will not
preclude summary judgment. Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson,
81 U.S. (14 Wall.) 442, 448 (1872)). '"[T]here is a preliminary question for the judge, not
whether there is literally no evidence, but whether there is any upon which a jury could properly
proceed to find a verdict for the party . . . upon whom the onus of proof is imposed."' Id.
(quoting Munson, 81 U.S. at 448). Additionally, "'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 opposition to
summary judgment."' Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v.

Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see Fed. R. Civ. P. 56(c)(3) ("The
court need consider only the cited materials .... ").
In support of his Motion for Summary Judgment, Defendant Lard has submitted: (1) his
own declaration (Br. Supp. Mot. Summ. J. Attach. 1 ("Lard Deel."), ECF No. 72-1) and (2)

3

copies of Gilchrist's medical records ("Medical Records," id. Attach. 2, ECF Nos. 72-2 through
72-4).
At this stage, the Court is tasked with assessing whether Gilchrist "has proffered
sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his
claim at trial." Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993) (emphasis
added); As a general rule, a non-movant must respond to a motion for summary judgment with
affidavits or other verified evidence. Celotex Corp., 477 U.S. at 324. Gilchrist's Particularized
Complaint has a notary seal but fails to indicate that he was administered an oath. 3 Gilchrist also
failed to swear to the contents of the Particularized Complaint under penalty of perjury. The
Particularized Complaint thus fails to constitute admissible evidence. United States v. White,
366 F.3d 291, 300 (4th Cir. 2004).
Gilchrist's Response to Defendant Lard's Motion for Summary Judgment is comprised of
the following:

(1) an "AFFIDAVIT IN OPPOSITION TO DEFENDANT MOTION FOR

SUMMARY JUDGMENT" ("Gilchrist Affidavit," ECF No. 77), (2) an unsworn document
entitled "AFFIDAVIT PART TWO LAW AND ARGUMENT" (ECF No. 77-1), and (3) an
unsworn document entitled "EXHIBIT-LEGAL NOTES," to which Gilchrist has attached copies
of various medical records that he has annotated, Offender Request Forms, an Offender Diet
Order, grievance forms, and the second page from Dr. Lard's Memorandum in Support of
Summary Judgment, which Gilchrist has also annotated (ECF Nos. 77-2 through 77-8).
3

Gilchrist's Particularized Complaint does not contain a jurat, but instead was merely
acknowledged before a notary. An acknowledgment is used to verify a signature and to prove
that an instrument was executed by the person signing it, whereas a jurat is evidence that a
person has sworn to the truth of the contents of the document. In an acknowledgment, unlike a
jurat, the affiant does not swear under oath nor make statements under penalty of perjury. See
Strong v. Johnson, 495 F.3d 134, 140 (4th Cir. 2007) (explaining that jurat uses words
"subscribed and sworn" and demonstrates an oath was rendered); Goode v. Gray, No. 3:07cv189,
2009 WL 255829, at *2 n.6 (E.D. Va. Feb. 3, 2009). Thus, the Particularized Complaint fails to
constitute admissible evidence.
4

However, "[i]t is well established that unswom, unauthenticated documents cannot be considered
on a motion for summary judgment." Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) (citation
omitted). "For documents to be considered, they 'must be authenticated by and attached to an
affidavit' that meets the strictures of Rule 56." Campbell v. Verizon Va., Inc., 812 F. Supp. 2d
748, 750 (E.D. Va. 2011) (quoting Orsi, 999 F.2d at 92). All of Gilchrist's submissions except
his Affidavit run afoul of these rules. Accordingly, the Court will only consider Gilchrist's
Affidavit in connection with the Motion for Summary Judgment.
In light of the foregoing principles and submissions, the following facts are established
for the purposes of the Motion for Summary Judgment. All permissible inferences are drawn in
favor of Gilchrist.

III.

RELEVANT FACTS

Gilchrist arrived at Keen Mountain Correctional Center ("KMCC") on March 3, 2015.
(Medical Records 1, ECF No. 72-2.) 4 During intake, Gilchrist told medical staff that he suffered
from a "very serious stomach problem." (Id)
The next day, during sick call, Gilchrist complained to a nurse that he had blood in his
stool. (Lard Deel.

~

13; Medical Records 2.) The nurse noted that Gilchrist was not in acute

distress. (Medical Records 2.) The nurse gave Gilchrist three hemoccult cards 5 and placed him
on the doctor's list for further evaluation. (Id; see also Lard Deel.

~

13.)

On March 5, 2015, Gilchrist gave two hemoccult cards to a nurse at KMCC. (Medical
Records 2.) Both were positive for blood. (Id.) Later that day, a doctor evaluated Gilchrist for
4

The Medical Records are located at ECF Nos. 72-2 through 72--4. The Court employs the
"WRSP 001," which is the pagination assigned to the Medical Records by Wallens Ridge State
Prison. However, the Court omits the initial zeros from the pagination when referring to the
Medical Records.
5 "Hemoccult

cards are used to test for blood in the stool." (Lard Deel.~ 15.)
5

"complain[ts] of blood in his stool, cramps, diarrhea and painful defecation." (Lard Deel. , 17;
Medical Records 2.) The doctor's impression was that Gilchrist suffered from severe irritable
bowel syndrome ("IBS"). (Lard Deel. , 17; Medical Records 2.) After reviewing Gilchrist's
records,

the

doctor

noted

that

Gilchrist

had

a

normal

colonoscopy

and

esophagogastroduodenoscopy ("EGD") 6 in 2012 and 2013. (Lard Deel., 17; Medical Records
2.) The doctor "discussed at length that Gilchrist did not have ulcertative colitis." (Lard Deel.
, 17.) Gilchrist "agreed to pursue treatment with neurologic/psych medications due to [the]
ineffectiveness of anticholinergics." (Id; see Medical Records 3.)7
On March 10, 2015, the doctor who had evaluated Gilchrist "contacted the psychiatric
department to discuss the benefits of treatment with Elavil lOmg for Gilchrist's severe IBS .... "
(Lard Deel., 25.) The doctor did not want to start Gilchrist on Elavil "without involvement of
the psychological department" because of Gilchrist's history of bipolar disorder. (Id.) The next
day, "the psychiatric department reported that Gilchrist had not been on any psychotropic
medications since March 2014, and when he was prescribed these medications he was only 40%
compliant." (Id , 26; see Medical Records 19.) The department "asked the doctor to proceed
with the treatment suggested." (Lard Deel., 26; see Medical Records 19.)
On March 12, 2015, a doctor at KMCC examined Gilchrist because of Gilchrist's
complaints of "weight loss and the inability to eat certain foods." (Id. , 27.) Gilchrist "had
positive bowel sounds and tenderness in the left upper quadrant." (Id; see Medical Records 4.)
The doctor did not locate any palpable masses. (Medical Records 4.) The doctor noted that
6

"An EGD is a test to examine the lining of the esophagus, stomach and first part of the small
intestine. It is used to diagnose and treat problems in the upper gastrointestinal ("GI") tract."
(Lard Deel. , 23.)
7 "Anticholinergics

are a class of drug to block the action of the neurotransmitter acetylcholine in
the brain. They are used to treat diseases like asthma, incontinence, gastrointestinal cramps and
muscular spasms." (Lard Deel., 24.)
6

Gilchrist's 2013 EGD had normal results "other than a non-obstructing Schatski ring in the lower
1/3 of the esophagus." (Lard Deel., 27.) The doctor diagnosed Gilchrist with leg swelling and
JBS. (Medical Records 5.) Gilchrist's diet order was modified, and the doctor prescribed Elavil.
(Id.)

On April 24, 2015, a nurse saw Gilchrist for his complaint that his medication was not
helping with weight loss. (Id at 6.) Gilchrist refused to have his vital signs taken. (Lard Deel.
, 29.) The nurse referred him to a doctor for evaluation. (Medical Records 6.)
A doctor evaluated Gilchrist on April 30, 2015. (Id) Gilchrist told the doctor that he had
not taken his Elavil "as prescribed to treat his JBS because another inmate told him that Elavil
was the same medication given by the psychiatric department at a regional jail." (Lard Deel.
, 30.) Despite telling the doctor he only took Elavil one time, a couple of minutes later, Gilchrist
told the doctor that he had not taken the Elavil because it made him itch. (Medical Records 6.)
Gilchrist also complained that he was receiving beans and cabbage, which he believed should not
be part of his diet. (Id.) The doctor explained that Gilchrist's current diet order, which only
prohibited red meat, was based upon Gilchrist's reports of being able to tolerate all other foods.
(Id) Gilchrist produced his old diet order from a prior facility for an ulcerative colitis diet, and

the doctor explained to Gilchrist he "does not have this diagnosis but rather JBS (which [they]
had extensively discussed [at] prior visit)." (Id at 7.) The doctor stated that it was difficult to
believe Gilchrist's complaints because of his conflicting reports of what foods he could or could
not eat. (Id.) The doctor explained that he or she could provide a different medication for JBS
and Gilchrist replied, "'So you're saying there is nothing wrong with me' and began to walk
away." (Id) The doctor also noted that Gilchrist was compliant with his medications only 38%
of the time. (Id)

7

During sick call on July 7, 2015, Gilchrist complained that he was experiencing internal
bleeding, his esophagus hurt when he ate, and he had a knot under his left rib by his kidney. (Id.
at 8.) Gilchrist also wanted to be checked for prostate cancer. (Id) He was placed on the list to
see the doctor. (Lard Deel.~ 32.)
Gilchrist saw a doctor on July 9, 2015, for "multiple complaints including issues with
urination, decrease of blood in stool, burning anus with bowel movements, use of hemorrhoid
cream, difficulty swallowing, and heartburn." (Id.

~

34.) Upon examination, the doctor noted

that Gilchrist had a soft and flat abdomen with positive bowel sounds. (Id; see Medical Records
9.) Gilchrist had no palpable masses, and his suprapubic area was not tender. (Lard Deel.

~

34;

see Medical Records 9.) The doctor noted that Gilchrist would be scheduled for blood work and

a rectal examination to address his concerns of prostate cancer. (Lard Deel.

~

34.) The doctor

also ordered that Gilchrist undergo a stool test. (Medical Records 9.) The doctor prescribed a
90-day supply of Rani ti dine, Omeprazole, and hemorrhoid ointment to address Gilchrist's
gastrointestinal issues. (Id.)
Gilchrist's stool and blood tests came back negative. (Lard Deel.
failed to show up for sick call on August 7 and 17, 2015.

(Id.~

~~

36-37.) Gilchrist

38; see Medical Records 10.)

Gilchrist saw a doctor on August 27, 2015 for a rectal examination. (Medical Records
10.) The doctor noted increased rectal tone with no masses and no tenderness.

(Id.)

The

palpable portion of Gilchrist's prostate was normal. (Id.) Only thin mucous was on the doctor's
glove. (Id.) Gilchrist continued to ask the doctor if he could see a specialist. (Id.) Gilchrist
declined to receive prescription medication for his IBS. (Id.)
On September 15, 2015, Gilchrist presented at sick call with complaints of acid reflux
and blood in his stool and urine. (Lard Deel.

~

41.) Gilchrist was alert and oriented, and he did

8

not demonstrate signs of acute distress. (Id.) His vital signs were normal. (Id.) Gilchrist was
placed on the list to see the doctor. (Id.)
Defendant Lard first saw Gilchrist on September 17, 2015. (Id.

1 42.)

On that date,

Gilchrist complained of pain in his upper left quadrant and blood in his stool and urine. (Id.; see
Medical Records 11.) He "reported that his symptoms were variable with food." (Lard Deel.

142.) Defendant Lard noted that Gilchrist was not in acute distress. (Id.) He ordered blood
work, a urinalysis, and a stool occult test. (Id.)
Gilchrist had blood drawn on September 24, 2015. (Medical Records 12.) He was
unable to void so he was given a specimen cup. (Id.) Gilchrist's stool occult test was positive
for blood in the stool. (Lard Deel.

1 45.)

Accordingly, Gilchrist's medications-hemorrhoid

ointment, Finasteride, Ranitidine, and Omeprazole-were renewed on September 27, 2015. (Id.;

see Medical Records 12.)
Defendant Lard reviewed Gilchrist's medical chart on September 29, 2015, because
Gilchrist "continued to make the same complaints that he made with other doctors within the
Department of Corrections." (Lard Deel.

1 46.)

Defendant Lard recommended that Gilchrist

have a digital rectal examination with a stool occult test. (Id.)
Defendant Lard was deployed overseas with the National Guard from October 7, 2015
until January 28, 2016.
Gilchrist.

(Id.

1 48.) During this time, other doctors provided treatment to

On December 10, 2015, a doctor at KMCC recommended that Gilchrist use

Preparation H and that he also receive a gastroenterology consultation for recurrent abdominal
pain, gastroesophageal reflux disease ("GERD"), and IBS. (Id.

1 49; see Medical Records 13.)

This doctor also recommended that Gilchrist avoid processed meat and that he undergo blood
work and a stool test. (Lard Deel. 1 49; see Medical Records 13.)

9

Gilchrist's lab results came back on December 18, 2015. (Lard Deel. 1 52.) Based on
those results, a doctor ordered prednisone, and Gilchrist was added to the list to see the doctor.
(Id.) This provider "also recommended a gastroenterology consultation to assess abdominal

pain, GERD and IBS." (Id)
On December 24, 2015, a doctor examined Gilchrist at his bedside for complaints of
abdominal pain, as well as hand and leg swelling. (Id. 1 54; see Medical Records 14.) The
doctor requested a gastroenterology consultation and ordered that Gilchrist have blood tests for
rheumatoid arthritis. (Lard Deel. 154.)
On January 29, 2016, Gilchrist saw an outside provider for his IBS. (Lard Deel. 1 58.)
This provider recommended that Gilchrist have an outside consultation for a colonoscopy and an
EGD. (Id.)
Defendant Lard returned to work on February 2, 2016.

(Id 1 59.)

He reviewed

Gilchrist's chart, and the outside consultation request was approved and scheduled for March 21,
2016. (Id 160.)
On February 10, 2016, Defendant Lard saw Gilchrist for knee pain. (Lard Deel. 1 62;
Medical Records 16.) Gilchrist did not have any complaints about GI issues at that time. (Lard
Deel. 162.)
On March 10, 2016, Defendant Lard saw Gilchrist for knee pain and dietary complaints.
(Id. , 64; see Medical Records 16.)

Defendant Lard told Gilchrist "that he should select

appropriate foods based on what is provided." (Lard Deel., 64; see Medical Records 16-17.)
On March 21, 2016, Gilchrist was taken to the Clinch Valley Medical Center for an EGD
and colonoscopy with biopsy. (Lard Deel. 1166, 71; Medical Records 53-57, ECF No. 72-4.)
Gilchrist's EGD showed a normal esophagus and gastroesophageal junction. (Medical Records

IO

53.) The doctor noted that Gilchrist had a small hiatal hernia and mild gastritis in the gastric
antrum. (Id.) Gilchrist's duodenum appeared normal. (Id.) Gilchrist's colonoscopy showed a
"normal appearing colon" with normal mucosa in the terminal ileum. (Id. at 55.) The doctor
recommended that Gilchrist be prescribed 40 mg ofNexium, return to the center for a follow-up
in two weeks, and return in ten years for another colonoscopy. (Id. at 54, 56.) Because "[t]he
Department of Corrections uses Prilosec to treat its population[,] Gilchrist received Prilosec to
treat his conditions." (Lard Deel. ~ 70.) 8 Defendant Lard avers that, given Gilchrist's results
from the March 21, 2016 EGD and colonoscopy, he "did not suffer any injury in having the
outside consultation performed in March 2016, rather than some time in early 2016."

(Id.~

61.)

On April 11, 2016, Gilchrist presented at sick call with complaints about his IBS.
(Medical Records 18, ECF No. 72-2.) A provider noted that Gilchrist was not in acute distress,
that he was oriented, and that his respiration was even and unlabored. (Id.) Gilchrist was placed
on the list to see a doctor for further evaluation. (Id.) Defendant Lard determined that, "[b]ased
on Gilchrist's physical presentation, his subjective complaints and [Defendant Lard's]
examination, it was not medically necessary for Gilchrist to receive additional treatment by
outside providers." (Lard Deel.~ 76.) 9
On April 14, 2016, Gilchrist was transferred from KMCC to Wallens Ridge State Prison.
(Id.

~

77.)
IV.

ANALYSIS

To survive a motion for summary judgment on an Eighth Amendment claim, Gilchrist
must demonstrate that Defendant Lard acted with deliberate indifference to his serious medical
8

Both Nexium and Prilosec are used to "treat[] gastroesophageal reflux disease and other
conditions involving excessive stomach acid." (Lard Deel.~~ 68-69.)
9

Gilchrist contends that Defendant Lard "has yet to see to it that [Gilchrist has his]
recommended follow-up with the GI specialist Dr. William C. Hunter .... " (Gilchrist Aff. ~ 3.)
11

needs. See Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001). A medical need is "serious" ifit
'"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)). For purposes of this matter, Defendant Lard "acknowledges that [Gilchrist's] severe IBS
constitutes a serious medical need." (Br. Supp. Mot. Summ. J. 12.)
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 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." Johnson v. Quinones, 145
F.3d 164, 168 (4th Cir. 1998) (citing Farmer, 511 U.S. at 837). Thus, to survive a motion for
summary judgment under the deliberate indifference standard, a plaintiff "must show that the
official in question subjectively recognized a substantial risk of harm.... [and] that the official
in question subjectively recognized that his actions were 'inappropriate in light of that risk.'"

12

Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (quoting Rich v. Bruce, 129

F.3d 336, 340 n.2 (4th Cir. 1997)).
In evaluating a prisoner's complaint regarding medical care, the Court is mindful that,
"society does not expect that prisoners will have unqualified access to health care" or to the
medical treatment of their choosing. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Estelle,
429 U.S. at 103-04). Absent exceptional circumstances, an inmate's disagreement with medical
personnel with respect to a course of treatment is insufficient to state a cognizable constitutional
claim. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (citing Gittlemacker v. Prasse,
428 F.2d 1, 6 (3d Cir. 1970)).

A.

Failure to Provide Adequate Medical Internal Testing

In Claim One (a), Gilchrist alleges that Defendant Lard failed "to provide adequate
medical internal testing" for Gilchrist's stomach condition. (Compl.

if 3.) As discussed below,

Gilchrist fails to demonstrate that Defendant Lard subjectively recognized a serious risk of harm
to Gilchrist and chose to ignore that risk.
The record establishes that Gilchrist received a great deal of medical care for his medical
issues. As noted above, Defendant Lard first treated Gilchrist on September 17, 2015. (Lard
Deel.

if 42.) Prior to this, Gilchrist was continuously treated by other providers at KMCC.

While Gilchrist contends that he did not receive any medications for his condition, the record
reflects that in March of 2015, a doctor at KMCC prescribed Elavil to treat Gilchrist's IBS.
(Medical Records 5, 19; Lard Deel.

ifif 25-27.) However, Gilchrist was only compliant with his

medications 38% of the time (Medical Records 7), and he told the doctor that he had not taken
his Elavil "because another inmate told him that Elavil was the same medication given by the

13

psychiatric department at a regional jail." (Lard Deel.

if 30.)

Gilchrist also had several blood

and stool tests and a rectal examination performed. (Medical Records 9-10.)
On September 17, 2015, when Defendant Lard first saw Gilchrist, Defendant Lard
ordered that Gilchrist receive blood work, a urinalysis, and a stool occult test. (Lard Deel. if 42.)
Defendant Lard also renewed Gilchrist's prescriptions for hemorrhoid ointment, finasteride,
ranitidine, and omeprazole. (Id

if 45; Medical Records 12.)

He also recommended that Gilchrist

undergo a digital rectal examination with a stool occult test. (Lard Deel. if 46.) When Defendant
Lard returned from being deployed overseas, he scheduled Gilchrist to see an outside provider on
March 21, 2016 to receive an EGD and colonoscopy with biopsy. (Id.

ifif 60, 66, 71.)

Defendant

Lard continued to see Gilchrist until Gilchrist was transferred to Wallens Ridge State Prison on
April 14, 2016. (Id

ifif 62, 64, 76; Medical Records 16, 18.)

Overall, the uncontroverted evidence establishes that Defendant Lard was not
deliberately indifferent to Gilchrist's stomach condition. On the contrary, other than the period
during which he was deployed overseas, Defendant Lard provided continuous care to Gilchrist
from September 17, 2015 until Gilchrist was transferred on April 14, 2016. Gilchrist fails to
suggest what more Defendant Lard should have done to treat his IBS. At most, Gilchrist has
alleged a disagreement with the course of treatment provided to him by Defendant Lard, which is
insufficient to maintain his Eighth Amendment claim against Defendant Lard. See Wright, 766
F.2d at 849 (citing Gittlemacker, 428 F.2d at 6). Because Gilchrist has failed to demonstrate that
Defendant Lard acted with deliberate indifference, Claim One (a) will be DISMISSED. 10
In his Particularized Complaint, Gilchrist also alleges that he "has not received any pain
medications for his stomach illness." (Part. Compl. 3.) Gilchrist also claims that he has lost 50
pounds and that "his medical food diet still has not been corrected." (Id) However, the record
reflects that Gilchrist has received abundant care for his medical conditions, including an
appropriate diet that prohibited red meat. (See Medical Records 6.) Gilchrist's old ulcerative
colitis diet order was no longer appropriate because Gilchrist was no longer diagnosed with
10

14

B.

Failure to Send Gilchrist to a Gastroenterologist

In Claim One (b), Gilchrist faults Defendant Lard for failing to send him to a
gastroenterologist for further evaluation of his stomach condition. As noted above, this assertion
is also refuted by the record. On January 29, 2016, while Defendant Lard was deployed overseas
with the National Guard, Gilchrist saw an outside provider for his IBS. (Lard Deel., 58.) This
provider recommended that Gilchrist have an outside consultation for a colonoscopy and EGD.
(Id.) When Defendant Lard returned from overseas, he obtained approval for Gilchrist to see an

outside provider on March 21, 2016. (Id. , 60.) Gilchrist saw Dr. William Hunter, a specialist,
at the Clinch Valley Medical Center for an EGD and colonoscopy with biopsy.

(Medical

Records 53-57; Lard Deel. ,, 66, 71.)
To the extent that Gilchrist faults Defendant Lard for delaying a consultation with an
outside provider, Gilchrist must also establish that the delay in the provision of medical care
"resulted in substantial harm." Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting
Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)); id. at 754 (quoting Sealock v.
Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000); see Webb v. Hamidullah, 281 F. App'x 159,

166-fJ7 n.13 (4th Cir. 2008) (explaining that where an Eighth Amendment claim is predicated on
a delay in the provision of medical care, the plaintiff must demonstrate "that the delay resulted in
substantial harm" (quoting Sealock, 218 F.3d at 1210)). "[T]he substantial harm requirement
colitis. (Id. at 7.) Gilchrist fails to demonstrate any deliberate indifference by Defendant Lard
with respect to these conditions. Moreover, any harm Gilchrist has suffered stems not from
deliberate indifference from any doctor, but from Gilchrist's own refusal to follow medical
orders and comply with his medications. (See id.)
In the Gilchrist Affidavit, Gilchrist claims that various medical personnel are
"deliberately refus[ing] to acknowledge [his] ... hiatal hernia at all or [his] one year no bean
diet." (ECF No. 77, at 2.) Gilchrist failed to include this as a claim in his Particularized
Complaint. To the extent this claim is properly before the Court, it is vague and conclusory, and
Gilchrist fails to demonstrate that he notified Defendant Lard about these conditions or that
Defendant Lard ignored them.
15

may be satisfied by lifelong handicap, permanent loss, or considerable pain."

Garrett v.

Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (citations omitted); see Coppage v. Mann, 906 F.

Supp. 1025, 1037 (E.D. Va. 1995) (quoting Monmouth Cty. Corr. Inst'/ Inmates v. Lanzaro, 834
F.2d 326, 347 (3d Cir. 1987)). As explained below, Gilchrist fails to demonstrate that any delay
in scheduling the outside consultation resulted in substantial harm.
On December 10, 2015, while Defendant Lard was deployed overseas with the National
Guard, another doctor at KMCC recommended that Gilchrist receive a gastroenterology
consultation for recurrent abdominal pain, GERD, and IBS. (Lard

Deel.~

49; Medical Records

13.) Gilchrist saw an outside provider on January 29, 2016, and that provider recommended that
Gilchrist have an outside consultation to receive a colonoscopy and an EGD. (Lard
Gilchrist did not see Dr. Hunter for those procedures until March 21, 2016. (Id.

Deel.~

~~

58.)

66, 71;

Medical Records 53-57.) Although Gilchrist experienced some pain during this period, the
record fails to indicate that the pain was attributable to any delay in scheduling the outside
consultation by Defendant Lard. Rather, Defendant Lard requested that an outside consultation
be scheduled for Gilchrist almost immediately after he returned to work on February 2, 2016.
Moreover, Defendant Lard concluded that, based upon the results obtained from Gilchrist's
March 21, 2016 EGD and colonoscopy, Gilchrist "did not suffer any injury in having the outside
consultation performed in March 2016, rather than some time in early 2016." (Lard Deel.

~

61.)

In the Gilchrist Affidavit, Gilchrist also appears to fault Defendant Lard for failing to
ensure that he saw Dr. Hunter for a follow-up evaluation two weeks after March 21, 2016.
(Gilchrist Aff.

~

3.) While Gilchrist may have experienced some pain after the consultation, the

record fails to establish that any pain was attributable to the failure to conduct the follow-up
appointment.

Instead, Defendant Lard concluded that "[b]ased on Gilchrist's physical

16

presentation, his subjective complaints and [Defendant Lard's] examination, it was not medically
necessary for Gilchrist to receive additional treatment by outside providers." (Lard Deel.

~

76.)

Gilchrist fails to provide any evidence to suggest that Defendant Lard was actually aware that
Gilchrist faced a substantial risk of serious harm from a delay in scheduling the outside
consultation and the failure to see Dr. Hunter for a follow-up appointment. See Farmer, 511
U.S. at 837. Accordingly, Claim One (b) will be DISMISSED. II

V.

CONCLUSION

For the foregoing reasons, Defendant Lard's Motion for Summary Judgment (ECF
No. 71) will be GRANTED. Claim One and the action will be DISMISSED.
An appropriate Order will accompany this Memorandum Opinion.

-2.L,

2017
Date: March
Richmond, Virginia

In his "AFFIDAVIT PART TWO LAW AND ARGUMENT," Gilchrist continues to complain
that medical staff at Wallens Ridge State Prison "continue to deny and delay me to needed
outside appropriate medical treatment causing me severe internal multiple pains off and on
daily." (ECF No. 77-1, at 2.) The Court previously informed Gilchrist that "[a]ny Wallens
Ridge State Prison defendant likely resides in the Western District of Virginia .... " (See ECF
No. 60, at 10 n.10.) The Court again advises Gilchrist that the proper venue for any action
against the medical staff at Wallens Ridge State Prison would likely be in the Western District of
Virginia.
II

17