Harper v. Gore et al

Filing 57

MEMORANDUM OPINION. See for complete details. Signed by District Judge Robert E. Payne on 06/13/2017. (mailed copy to pro se Plaintiff) (nbrow)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division LINWOOD HARPER, Plaintiff, v. Civil Action No. 3:15CV303 DR. GORE, et al., Defendants. MEMORANDUM OPINION Linwood Harper, a Virginia inmate proceeding pro se and in forma pauperis, action has filed this 42 U.S.C. proceeds No. 14.) on Harper's § 1983 action. 1 Particularized Complaint. The (ECF Harper's Particularized Complaint raised the following claims for relief: Claim One: 1 Nurse Jones (a) acted negligently and (b) violated Harper's rights under the Eighth 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. Amendment 2 by providing Harper the wrong medication on June 25, 2013. (Id. at 5.) 3 Claim Two: Nurse Hamlin (a) acted negligently, (b) 4 and violated Harper's rights under the First Fourteenth5 Amendments by "respond [ing] to Harper's informal complaint in an unprofessional manner," and (c) violated Harper's rights under the Eighth Amendment by failing "to take the .proper precautions [for] treating Harper." (Id. at 6.) Claim Three: Officers Matheny, Quintana, and Crowell (a) acted negligently and (b) violated Harper's rights under the Eighth Amendment by delaying their response to Harper' s cellmate's request that Harper receive medical attention. (Id.) Claim Four: Sergeants Dugger and Lowe violated Harper's rights under the Eighth and Fourteenth Amendments by delaying their response to Defendants Matheny, Quintana, and Crowell regarding Harper's need for medical attention. (Id. at 7.) Claim Five: Dr. Gore (a) acted negligently and (b) violated Harper's rights under the Eighth Amendment by failing to ref er Harper to a specialist. (Id. at 8.) "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. 2 The Court uses the pagination assigned to Harper's Particularized Complaint by the CM/ECF docketing system. The Court corrects the spacing, capitalization, and punctuation in quotations from the Particularized Complaint. 3 4 "Congress shall make no law speech . . " . abridging the freedom of U.S. Const. amend. I. "No State shall . . deprive any person of life, liberty, without due process of law . . " U.S. Const. amend. XIV, § 1. 5 or property, 2 (Id. at 10-11.) Harper seeks damages for relief. By Memorandum Opinion and Order entered on November 10, 2016, the Court granted in part and denied in part the Motion to Dismiss filed dismissed by Claims Defendants One Harper v. Gore, No. Nov. 10, 2016). Defendants (b), Two 3:15CV303, The Quintana Jones, (b), Hamlin, Two and (c), and and Five (b). 2016 WL 6662697, at *7 Court also dismissed all and Gore, Dugger without (E.D. Va. claims against prejudice Rule 4(m) of the Federal Rules of Civil Procedure. pursuant to Id. The matter is before the Court on the Motion for Summary Judgment Hamlin, (ECF No. and receiving Dr. 53) Gore Roseboro 7 filed by Defendants (collectively, notice, Motion for Summary Judgment. Harper Nurse Jones, "Defendants"). 6 has not responded Nurse Despite to the For the reasons stated below, the Court will grant the Motion for Summary Judgment. I. STANDARD FOR SUMMARY JUDGMENT Summary judgment must be rendered "if the movant shows that there is movant no genuine is entitled to dispute as to any material judgment as a matter of fact law." and the Fed. R. Nurse Jones is a Registered Nurse at Greensville Correctional Center ( "GCC") . Nurse Hamlin is the Head Nurse at GCC. Dr. Gore is the Medical Director at GCC. (Part. Compl. 1.) 6 7 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). 3 Civ. P. 56(a). The party seeking summary judgment bears the responsibility to inform the court of the basis for the motion, and to identify the parts of the record which demonstrate the See Celotex Corp. absence of a genuine issue of material fact. v. Catrett, 477 U.S. 317, 323 " [W] here the nonmoving (1986). party will bear the burden of proof at trial on a dispositive issue, a reliance summary solely judgment on the motion may pleadings, marks 11 the When omitted) . be made in answers depositions, interrogatories, and admissions on file. quotation properly to Id. at 324 motion (internal is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits interrogatories, and answers "'depositions, or admissions on file, / designate 'specific facts showing that there is a genuine issue for trial. / 11 (quoting former Fed. R. Civ. P. 56(c) and 56(e) In reviewing draw all party. 11 832, a justifiable (4th Cir. 477 U.S. 242, 1992) 255 judgment inferences United States v. 835 Inc., summary in (1986)). However, evidence will not preclude summary judgment. at 251 442, (citing Improvement Co. 448 judge, (1871)). the of court the Carolina Transformer Co. , (citing Anderson v. Munson, Id. (1986)). motion, favor to v. "must nonmoving 97 8 Liberty F. 2d Lobby, a mere scintilla of Anderson, 477 U.S. 81 U.S. (14 Wall.) "' [T] here is a preliminary question for the not whether there is literally no evidence, 4 but whether there is any upon which a jury could properly proceed to find a verdict for imposed."' the Id. party upon whom the (quoting Munson, onus 81 U.S. at 448). of proof is 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 1527, 1537 Inc., 953 F.2d 909, P. (5th Cir. 56 (c) (3) • • II ) Forsyth judgment.'" 1994) v. (quoting Skotak v. 915 n.7 (5th Cir. 1992)); Barr, 19 F. 3d Tenneco Resins, see Fed. R. Civ. ("The court need consider only the cited materials • In support of their Motion for Summary Judgment, Defendants ( 1) Summ. J. a declaration from Nurse Ex. submit: 1 ("Jones Deel.") , Harper's medical records Nos. (id. 48-2 through 48-4) ; 8 Corrections (3) Ex. Jones ECF No. 1-A (Mem. 48-1) ; Supp. (2) Mot. copies of ("Medical Records"), ECF a copy of Virginia Department of ("VDOC") Operating Procedure § 866.1, effective July 1, 2013 (id. Ex. 2 ("July 1, 2013 Operating Procedure§ 866.1"), ECF No. 48-5); effective (4) December a copy of VDOC Operating Procedure 1, 2010 (id. Ex. 3 ("December Operating Procedure§ 866.1"), ECF No. 48-6); and, § 1, 866.1, 2010 (5) copies of The Court employs the "MR-000001," which is the pagination assigned to the Medical Records by the Virginia Department of Corrections. However, the Court omits the initial zeros from the pagination when referring to the Medical Records. 8 5 grievances and informal complaints submitted by Harper (id. Ex. 4, ECF No. 48-7). Harper did not respond to the Motion for Summary Judgment, thereby failing to cite to any evidence that he wishes the Court to consider (emphasizing in opposition. that "[t] he See court Fed. need R. Civ. consider P. only 56(c) (3) the materials" in deciding a motion for summary judgment). cited Harper's Particularized Complaint is sworn to under penalty of perjury. Harper also attached an Affidavit to his Particularized Complaint ("Harper Aff.," ECF No. 14-1). In light of the foregoing submissions, the following facts are established for the Motion for Summary Judgment. The Court draws all permissible inferences in favor of Harper. II. On June 25, 2013, PERTINENT FACTS Nurse Jones "was administering insulin and giving medication. get his meds." (Jones Deel. , 4.) pills "that he was not familiar with." told Nurse Jones "that she ha[d] the diabetic nurse Mr. Harper came to Nurse Jones gave Harper (Part. Compl. 5) given him [the] Harper wrong prescription drugs to take and that it was not his medication." (Id.) Nurse Jones replied, "'Harper it's your meds take them,'" 6 so Harper took the medication. incident to Nurse Hamlin. That evening, (Id.) 9 (Jones Deel. Harper "had an Nurse Jones reported the ~ 4.) episode of hypoglycemia, meaning that he had abnormally low blood sugar that during the provider visit [.]" Harper was lethargic, ~ (Id. disoriented, 5. ) resolved A nurse noted that and weak. (Medical Records Harper was unable to talk and walk on his own. 100.) Harper was given a glucogen injection, sugar rose to 102. (Id.) (Id.) after which his blood Harper was then given a glucose tube, after which his blood sugar rose to 129. (Id.) The nurse referred Harper to Dr. Gore, who directed that an IV of Dextrose be started evaluation. and that Harper be sent to the hospital (Id.) On June 26, 2013, Harper saw a provider, who noted that Harper had experienced a recent episode of hypoglycemia. 9 for (Id. Nurse Jones avers that she looked at [Harper]s medication and noticed pink pills that I knew he did not normally take, so I asked whether [Harper] had seen a doctor. He shrugged his shoulders, I then rechecked his Medication Administration Record, and the medications that were in his cup were those listed on his MAR. I told him he could take his medication and refuse the new meds. He did not respond, he shrugged his shoulders and took the med cup and took all of the medicine. (Jones Deel. ~ 4 (internal citation omitted).) The new medications that were listed on Harper's medication administration record were Thorazine, an antipsychotic, and Benadryl. (Medical Records 239-42.) These medicines are not asserted to be a part of treatment for diabetes. 7 at 99.) Harper was oriented, but complained of being drowsy and lightheaded. (Id.) Harper indicated that consciousness during the hypoglycemic incident. On July 1, 2013, he had lost (Id.) Nurse Hamlin informed Harper that Nurse Jones "did indeed give him the wrong medication and that he had the right to refuse medication offered to him." (Part. Compl. 6.) On January complaints June. that 9, 2014, Harper had (Medical Records 83.) during the evenings. headaches (Id.) Harper's did not (Id.) been provider experiencing saw Harper headaches for since The headaches typically occurred The provider noted that Harper's appear to be related to high blood sugar. Harper declined a trial of beta-blockers and requested to see a specialist. (Id.) The provider made a request for Harper to receive a neurological consultation. The request for Harper to see a neurologist was def erred pending receipt of information regarding Harper's evening blood sugar levels. (Id. directed to consider blockers and Topamax, rebound headaches . at 126.) preventative Harper's provider medications such was as and whether Excedrin could have On February 10, 2014, also betacaused Nurse Hamlin noted that the request for Harper to see a neurologist had been deferred. (Id. at 82.) 8 On February 18, 2014, the def erred referral. Harper saw his provider to discuss (Id.) The provider diagnosed Harper (Id.) with headaches that had improved. That same day, Harper asked Dr. Gore if he could be referred to a specialist for a CAT scan and MRI. (Part. Compl. 8.) Dr. Gore "told Harper she will see if that is needed and she felt that seeing a specialist was not necessary." (Id.) Harper told Dr. Gore that he was suffering from constant headaches and dizziness because he had (Id.) been given the wrong medication by Nurse Jones. told Harper that he was being monitored, but that have Dr. Gore scheduled written specialist." a complaint, you will be "since you to see a (Id. ) On March 31, 2014, Harper saw a nurse for complaints of dizziness and headaches that he had been experiencing since June of 2013. experienced (Medical Records dizziness three experienced blurred vision. The nurse Harper 78.) to four (Id.) referred Harper times stated a that week, and he also Excedrin helped "sometimes." to the doctor for further Nurse Hamlin told Harper that "he was evaluation. On April 3, being monitored" commissary. Hamlin that specialist." 2014, and that he could purchase Tylenol (Part. he Compl. needed more 6.) "Harper treatment (Id.) 9 and explained wanted from the to to Nurse see a (Medical Records Harper saw the doctor on April 11, 2014. 77.) Harper reported daily headaches with occasional blurred vision. try (Id.) Harper declined the doctor's suggestion that he beta-blockers or amitriptyline. (Id.) The doctor discontinued Excedrin and prescribed 500 mg of Tylenol. On May 16, (Id. at 74.) 2014, Dr. Harper saw Dr. (Id.) Luong for his headaches. The Luong prescribed ami triptyline. next day, Dr. Luong discontinued amitriptyline and directed that Harper be scheduled for an appointment to discuss starting Inderal. III. NEGLIGENCE CLAIMS In Claims One that Nurse Jones, with respect to (a), Two (a), Nurse Hamlin, his medical and Five and Dr. (a), Gore acted negligently (Part. care. Harper contends Compl. 5-6, 8.) Defendants contend that they are entitled to summary judgment on Harper's claims testimony to causation. because establish (Mem. Supp. Harper breach Mot. has of failed the Summ. J. to provide standard 8-10, of ECF No. expert care 48.) and The Court agrees. Harper's negligence claims Defendants See Va. Code Ann. claims for medical malpractice. (West 2016) against § constitute 8.01-581.1 ("'Malpractice' means any tort action or breach of contract action for personal injuries or wrongful death, 10 based on health should care have been patient."). action, or professional rendered, by Under Virginia services a health law, rendered, care "[i] n a or provider, medical the applicable standard of care, and to a malpractice 'a plaintiff must establish not only that a violated which defendant therefore was negligent, the plaintiff must also sustain the burden of showing that the negligent acts Bitar v. injury or death.'" 2006) (quoting 1997)) . constituted a Bryan v. Rahman, Burt, 486 proximate cause of 630 S.E.2d 319, S.E.2d 536, 323 539-40 the (Va. (Va. "Expert testimony is generally required to establish not only the appropriate standard of care and a deviation from the standard, but also 'that such a deviation was the proximate cause of the S.E.2d 127, Practice claimed damages. '" 132 Ctr., (Va. Granata, 668 2008) (quoting Perdieu v. Blackstone Family Inc., 568 Crinkley v. Holiday Inns, 1988) Fruiterman v. S.E.2d 703, 710 (Va. 2002)); Inc., 844 F.2d 156, 164 n.2 see (4th Cir. (" [E] xpert opinion is of course the prime-indeed usually the only-way to prove medical causation."). A. Nurse Jones In Claim One (a), Harper contends that Nurse Jones acted negligently by providing him the wrong medication on June 25, 2013. (Part. Jones' s negligence, since then. Compl. 5.) he has He alleges that, experienced many (Id. at 10.) 11 because of Nurse medical problems Nurse Jones in fact gave Harper the wrong medication for diabetes, knowing that he had diabetes and had been prescribed medication for it. was negligent. of providing The record thus establishes that Nurse Jones Harper, evidence however, from an has failed to meet his burden expert witness to support his contention that Nurse Jones' negligence caused his hypoglycemic episode June on the evening of 25, Nor 2013. has Harper produced any evidence that the provision of the wrong medication caused the other various medical issues, headaches, he has F. 3d at 164 n. 2. to show a experienced since such as dizziness and See Crinkley, then. 844 Because Harper has failed to meet his burden triable issue of fact as to whether Nurse Jones' conduct caused the injuries of which he complains, Claim One (a) will be dismissed. B. Nurse Hamlin and Dr. Gore In Claims Two (a) and Five (a), Harper alleges that Nurse Hamlin and Dr. Gore acted negligently by failing to refer him to (Part. a specialist for his headaches and other medical issues. Compl. that 6, 8.) Harper issues. The record, received For example, amitriptyline, Part Compl. 6.) see a however, treatment for is replete with evidence his headaches and Harper was prescribed Excedrin, and Inderal. (Medical Records 74, other Tylenol, 77-78, 126; A provider did request a referral for Harper to neurologist, but the referral 12 was deferred, pending assessment of the diabetic symptoms. (Medical Records 82, 126.) Harper has not provided any expert testimony to suggest that the actions taken by Nurse Hamlin and Dr. standards of care. See Gore deviated from the Fruiterman, 668 S.E.2d at 132. Moreover, Harper has not provided any evidence to establish that the decision not to refer him to a specialist caused him injury. See Crinkley, 844 F.3d at 164 n.2. Because Harper has failed to meet his burden of proof with respect to whether Nurse Hamlin and Dr. Gore acted negligently, Claims Two (a) and Two (b) will be dismissed. V. CONCLUSION For the foregoing reasons, (ECF No. 47) will be granted. (a) will be dismissed. the Motion for Summary Judgment Claims One (a), Two (a), and Five The action will be dismissed. The Clerk is directed to send a copy of this Memorandum Opinion to Harper and counsel of record. /s/ /!£! Robert E. Payne Senior United States District Judge Richmond, Virginia Date: June 2017 1 -J.J- 13

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