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)

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