Brown v. Banks et al

Filing 57

MEMORANDUM OPINION #2. See Opinion for details. Signed by District Judge Henry E. Hudson on 01/31/2017. Copy of Opinion mailed to Brown as directed.(ccol, )

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

A

P

Richmond Division

JAN 3

Of:'?

DENNIS JAMES BROWN,

_,Vmnr^i3TfliCT COURl
clerk.

Plaintiff,
Civil Action No. 3:15CV747-HBH

V.

LT. A. BANKS, etal..
Defendants.
MEMORANDUM OPINION

(Granting Motion for Summary Judgment)

Dennis James Brown, a Virginia inmate proceedingpro se and informa pauperis,

filed this 42 U.S.C. § 1983 action.' Brown's claims flow from the alleged
unconstitutional treatment Brown received from Lt. A. Banks and Dr. Inder Gujral in the

aftermath of Brown's hernia surgery. Brown contends that:
Claim 1

(a) Defendant Banks violated Brown's rights under the Eighth
Amendment when, on February 10, 2015, he ordered Brovra to move
some heavy boxes and refused to allow anyone to assist Brown in

moving the boxes. (Compl. 6-7, BCF No. 1.)^
(b) Defendant Banks violated Brown's rights under the Eighth
Amendment when he falsely charged Brown with disobeying a
That 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 injiu-ed in an
action at law

42U.S.C. § 1983.
A

The Court employs the pagination assigned to Brown's submissions by the CM/ECF docketing
system. The Court corrects the capitalization and spelling the quotations from Brown's
submissions.

direct order and had Brown locked in segregation for thirty-six (36)
days. (Id. at 6.)
Claim 2

Defendant Gujral failed to provide Brown with adequate medical
care following Brown's injury on February 10, 2015. (Id. at 4.)

By a separate Memorandum Opinion, the Court dismissed Claims l(a) and l(b) against
Defendant Banks. The matter is before the Court on the Motions for Summary Judgment
filed by Brown (ECF Nos. 30, 48) and Motion for Summary Judgment filed by Dr. Gujral
(ECF No. 43). For the reasons set for below, Dr. Gujral's Motion for Summary
Judgment will be granted and Brown's Motions for Summary Judgment will be denied.
Before turning to the facts established for purposes of summary judgment, it is
appropriate to trace the evolution of Brown's claims against Dr. Gujral. In his
Complaint, Brown asserted that following his reinjury of his hernia on February 10,

2015, until the end of November of 2015, "Doctor Gujral has not done anything to help
me, or send me to any specialist to find out what damages was done on 2-10-15."
(Compl. 4.) As reflected below, the evidence shows that is simply not true. On April 16,

20i5, Dr. Gujral sent Brown to Dr. Diep at Southampton Surgical Associates for
continuing pain related to his hernia. (Mem. Supp. Mot. Summ. J. Ex. 1, Ex. A "Medical
Records" 31.) Dr. Diep concluded there was "no recurrent hernia at this time" and "his
chronic pain will likely improve over the next few months." (Id at 32.) When Brown
continued to complain of pain, Dr. Gujral ordered multiple kidney, ureter, and bladder xrays, ordered multiple abdominal and pelvic CT scans, prescribed pain medication, and
secured an additional surgical consultation.

2

Given tlie lack of merit of his initial claim, Brown's claim has now evolved to

where he insists that Dr. Gujral violated his rights under the Eighth Amendment because

he failed to provide Brown with adequate pain medication and inordinately delayed in
requesting a follow-up examination with Brown's surgeon. Accordingly, the Court
deems Brown to raise the following claims:

Claim 2

Defendant Gujral failed to provide Brown with adequate medical
care following Brown's injury on February 10,2015 by:
(a) failing to send Brown to a specialist;

(b) failing topromptly arrange a follow-up appointment with the surgical
group thatperformed Brown's hernia surgery (PL's Mem. Supp. Mot.
Summ. J. 2-3, ECF No. 49); and,

(c) failing to provide adequate pain medication (see. e.g., id.)
L 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 tojudgment as a matter

of law." Fed. R. Civ. P. 56(a). It is the responsibility of the party seeking summary
judgment to inform the court ofthe basis for the motion, and to identify theparts 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). "[WJhere the nonmoving party will bear the

burden ofproof attrial 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) and 56(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) {ciWng 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)).

In support of his Motion for Summary Judgment, Defendant Gujral submitted his

own declaration (Mem. Supp. Mot. Summ, J. Ex. 1 ("Gujral Decl.," ECF No. 44-1), and

a copy ofBrown's medical records (Gujral Aff. Ex. A ("Medical Records").^ Brown
responded to the Motion for Summary Judgment. In considering the propriety of
summary judgment, the Court will consider the sworn statements Brown tendered in

support of his Motions for Summary Judgment (ECF No. 30-2, "Brown Aff."; ECF
No. 46, "Brown Decl."). Of course, the facts offered by affidavit or sworn declaration

must also be in the fonn of admissible evidence. See Fed. R, Civ. P. 56(c)(4). In this

regard, the statement in the affidavit or sworn declaration "mustbe made onpersonal
knowledge, set out facts that would be admissible in evidence, and show that the affiant

or declarant is competent to testify on the matters stated." Id. Therefore, "summary
judgment 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).

^The Court employs the pagination assigned to the Medical Records by the CM/ECF docketing
system.

Brown has submitted a number of conclusory statements that run afoul of this
prohibition. For example, in his Affidavit, Brown swears that:

Between February 11, 2015, and October 26, 2015 . . . , I repeatedly
informed Dr. Gujral and his staff that I was experiencing extreme pain in
the area of my surgery .... I requested pain-relieving medication to relieve
my pain and suffering. Throughout that entire period of time, Defendant
Dr. Gujral and his staff disregarded all of my pleas and requests for
treatment.

(Brown Aff. ^ 6, ECF No. 30-2.) Vague statements of this ilk fail to create material

disputes of fact. See United States v. Roane, 378 F.3d 382,400-01 (4th Cir. 2004)
(observing that "[a]iry generalities" and "conclusory assertions" cannot "stave off

summary judgment") (alteration in original) (internal quotation marks omitted) (citation
omitted).

In light of the foregoing submissions andprinciples, the facts set forth in the next

section are established for purposes ofDr. Gujral's Motion for Summary Judgment.
II. FACTS PERTINENT TO SUMMARY JUDGMENT

In January of 2015, Brown was confined in Sussex II State Prison ("SUSP").

(Brown Decl. ^ 5.) On January 27,2015, Brown underwent surgery for a right inguinal
hernia. (Gujral Decl. ^5.) The surgery was conducted at Southampton Memorial
Hospital. (Id.) The surgeon repaired thehernia with "plug and mesh." (Jd.) The

surgical consultation report recommended that Brown not perform any heavy lifting or
strenuous activity for three weeks. {Id. 16.) The consultation report further
recommended a follow-up appointment in the surgical clinic in three weeks. (Medical
Records 20.)

On February 5, 2015, Dr. Gujral examined Brown in a follow-up appointment in
light of Brown's hernia repair surgery. (Gujral Deel.~ 7.) Dr. Gujral noted that Brown's
"wound was healing well, there was no redness and no drainage found. [Dr. Gujral]
found that [Brown] had good bowel sounds present." (Id.) Dr. Gujral informed Brown
that he could be discharged from the infirmary. (Id.) Dr. Gujral ordered that Brown not
"engage in any heavy lifting, sports, or strenuous activity for three weeks, and that he be
given a bottom bunk for six weeks. [Dr. Gujral] requested that [Brown] be seen in
follow[-]up in the Surgery Clinic in three weeks." (Id.)
On February 10, 2015, despite Brown's protestations that it was against his
surgeon's orders, Defendant Banks demanded that Brown lift several heavy boxes.
(Brown Deel.~ 7.) On February 11, 2015, the nursing staff examined Brown in the
segregation unit and noted that his vital signs were stable and Brown did not have any
signs of physical injury and voiced no complaints. (Gujral Deel.~ 8.) The nursing staff
recommended, and Dr. Gujral "signed off on the recommendation, that [Brown's] lifting
restrictions be extended for two additional weeks and that [Brown] should apply a warm
compress to the wound site for fifteen minutes two times a day." (Id.)
On February 19, 2015, Brown had a follow-up visit with respect to his surgery, but
it is unclear from the record who examined Brown or where he was examined. (Medical
Records 25; Gujral Deel.~ 9.)
On February 24, 2015, the nursing staff examined Brown for his complaints of
possible hernia re-injury a week prior. (Gujral Deel.~ 10.) In the history section of the
sick-call note, Brown stated he may have reinjured himself by lifting his mattress. (Id.)
6

"Upon examination, the nurse found that [Brown] was alert, there were no signs of
distress noted, there was tenderness found at the surgical incision site, but there was no
drainage found. The nurse recommended that [Brown] be placed on the physician's list
to be evaluated." (Id.)
On March 5, 2015, Dr. Gujral evaluated Brown for his complaints ofreinjuring his
hernia and constipation. (Id.

~

13.) During that visit, Brown "claimed to have linear

discomfort in his right groin area after picking up an object. [Dr. Gujral] noted that
[Brown] was otherwise doing well [and] found that [Brown] was healing well with
respect to his hernia repair ...." (Id.) Dr. Gujral told Brown to "refrain from lifting
greater than ten pounds for twelve weeks." (Id.) Dr. Gujral's abdominal examination of
Brown was "negative." (Id.) Dr. Gujral ordered Colace for Brown's complaints of
constipation. (Id.) Dr. Gujral did not prescribe any pain medication. (Brown Deel.
~

12.)
On April 7, 2015, the nursing staff at SIISP examined Brown for his complaint of

right side pain for which Brown requested x-rays. (Gujral Deel.~ 14.) The nursing staff
noted that Brown "complained of shooting pain down his right side and had a history of
hernia repair." (Id.) The nursing staff further noted that Brown was alert, oriented and
not in distress. (Id.) Additionally, Brown "demonstrated a good range of motion," but
"his abdomen was lightly rigid on the right side. The nurse recommended that [Brown]
be referred to the physician for evaluation." (Id.)
On April 13, 2015, Dr. Gujral evaluated Brown "in follow[-]up for his hernia
repair surgery and his complaints of right sided pain."
7

(Id.~

15.) Dr. Gujral noted that

Brown "continued to complain ofpain on the right side ofhis abdomen, and the pain
radiated to the right subcostal region." {Id.) Upon examination. Dr. Gujral found that
Brown's

wound was healed and there was no drainage or swelling present.
[Brown's] abdomen was soft, non-tender and bowel sounds were present.
[Dr. Gujral] explained to [Brown] that there was no acute problem or
abnormal findings present. [Brown] stated that he wanted to go and see the
physician who performed the surgery (Dr. Yancey). As such, a request for
referral/consultation called a "UMD" was submitted for follow[-]up.

{Id.) On April 14, 2015, SUSP received approval to send Brown to Southampton
Memorial Hospital for a follow-up appointment with general surgery. {Id. ^ 16.)
On April 16, 2015, Dr. Diep at Southampton Surgical Associates evaluated Brown

for his complaints of postoperative pain following his hernia surgery. {Id. Tj 17.) Dr.
Diep noted that Brown's "last visit was in February 2015 ...." {Id.) Brown told Dr.
Diep that "he continues to have mild pain near the repair site. The pain extends towards
the right ASIS and down towards the right side of the scrotum. He describes it as a

pulling/burning type of pain. It is rated as 3/10." {Id. (punctuation corrected).) Dr. Diep
noted that Brown was not in acute distress, the incision cite was completely healed, and
that there

were no signs of recurrence of hernia, and no infection noted. Dr. Diep
explained to [Brown] that his chronic postoperative pain would likely
improve over the next few months, and fijrther explained to [Brown] that
there was no recurrent hernia at that time. Dr. Diep instructed [Brown] to
continue monitoring the area. [Brown] was informed that he could resume

all of his normal activities and there were no restrictions. [Brown] was
advised that if the pain persisted or worsened, he would need to follow[-]
up with Dr. Yancey again for evaluation and management, at which time he
may need to be referred to a pain clinic for injections.
{Id.)

On April 16,2015, Brown returned to SUSP from Southampton Memorial

Hospital. {Id. ^ 18.) Although Brown did not voice any complaints at that time, Dr.
Gujral prescribed 500mg of Tylenol twice a day for five days. {Id.) On April 20, 2015,
Dr. Gujral examined Brown's chart and recommended that Brown continue to receive

Tylenol as needed. {Id. ^ 19.)

On May 14,2015, the nursing staffat SUSP examined Brown for his "complaint
of ongoing right sided pain thatradiated down his rightleg. [Brown] complained of
tightness and shooting pains." {Id. ^ 20.) Upon examining Brown, nursing staff noted
that Brown was alert and not in acute distress and recommended that Brown be referred

to the physician for evaluation. {Id.)

On May 19, 2015, Dr. Gujral evaluated Brown. {Id. 121.) Dr. Gujral noted that

"there was tunnel sign on the right edge and after the scar on the outer side. No
inflammation was noted, his skin was normal and his incision scar was healed. [Dr.
Gujral] advised [Brown] to take Tylenol as needed and to follow[-]up in three months."
{Id.)

Brown, however, asserts that he never received Tylenol at any time in 2015.

(Brown Decl. Tfl 18, 20.) Brown further asserts that Dr. Gujral never advised him to take
Tylenol as needed during the May 19, 2015 examination. (Brown Decl. ^ 22.) Brown's

medical records reflect that Brown was prescribed and administered Tylenol twice a day
from April 18,2015 until April 22, 2015. (Reply Ex. 1, ECF No. 50-1.)
On June 30,2015, the nursing staff at SUSP again saw Brown for "his

complaints of lower right abdominal discomfort that had been ongoing since his hernia
repair surgery." (Gujral Decl. ^ 22). The nursing staff noted that Brown "hadhad
numerous appointments for this issue, but [Brown] believed thatsomething was wrong.

Upon examination, [Brown] was noted to be alert, oriented and in no distress. No bulge
I

or distension was noted, and his abdomen was soft. [Brown's] bowel movements were
noted to be appropriate." {Id.) It was recommended that Brown be referred to the

physician for evaluation. {Id.) Brown was prescribed and received Palemor pain
medication between July 21 and July 31, 2015. {Id.\ 23.)
On July 13,2015, Brown was scheduled to see the physician, but refused to attend

the appointment and instead went to his programs. {Id. ^ 24.)
On July 16, 2015, a physician at SUSP examined Brown for his complaints of
abdominal discomfort. {Id. H25.)
The physician noted that [Brown's] complaint of abdominal discomfort had
been ongoing since his hernia repair, and [Brown] had received two post
operative surgical follow[-]up appointments at Southampton Memorial
Hospital. Upon evaluation by the physician at SUSP, [Brown] complained
of some discomfort in his right flank going into his right testicle for which
he was concerned, but the physician found that [Brown] did not otherwise
appear ill. The physician recommended that [Brown] receive[] a kidney,
ureter and bladder x-ray ("KUB").
{Id. (emphasis added).)
On July 16,2015, Brown received a KUB which revealed: "'1. Oval calcification

within the right pelvis is suspicious for a stonewithin the distal ureter and less likely
favored to be a pelvic phlebolith (due to shape and location). 2. Nonobstructive bowel
gas pattern.'" {Id. Tj 26.) On July 23, 2015, a physician at SUSP reviewed the results of

10

Brown's KUB and ordered thatBrown "receive Ibuprofen 600mg three times a day for
twenty one days, Flomax 0.4 mg once a day in the evenings for sixty days, Cipro 750mg

twice a day for fourteen days, and a foIlow[-]up with the physician." {Id.

27.)

Additionally, Brown "received the pain medication Pamelor throughout August of 2015."
{Id. 128.)

On August 3,2015, Dr. Gujral evaluated Brown in a follow-up appointment with

respect to his KUB. {Id. ^ 29.) Brown told Dr. Gujral "that the mesh placed during the
surgery had ... slipped." {Id.) Dr. Gujral noted that Brown had no urinary problems, no
obstructive bowel pattern, and his x-ray showed a possible right uretic stone. {Id.) Dr.
Gujral requested a repeat KUB to confirm the presence of a questionable uretic stone and
directed that Brown follow[-]up after his KUB report was received. {Id.) Dr. Gujral
prescribed Metamucil for Brown for thirty days and requested that a urine analysis be
performed. {Id.)

On August 4,2015, Brown received another KUB. The KUB revealed: "'1. 5mm

calcification in the pelvis on the right. This and [sic] may be within the course of the

distal right ureter. 2. No definite renal, left ureteral or bladder calculi.'" {Id. ^ 30
(alteration in original).)
On August 17, 2015, Dr. Gujral evaluated Brown in a follow-up after his KUB xray. {Id. 131.) Dr. Gujral noted that the KUB "revealed a 5mm calcification on the

right side and questionable uretic stone. [Dr. Gujral] documented that there was 'no pain'
at that time [and] recommended that [Brown] undergo another urine analysis and to
follow up after two weeks." {Id.)
11

On October 2, 2015, Brown was atwork during normal sick-call, so he was placed
on the master pass list. {Id. TI 34.)

Brown received the pain medication Pamelor from September through December
of 2015. {Id.

32-33, 36,46.) On October 26, 2015, Dr. Gujral renewed Brown's

prescription for Flomax .4mg. {Id. T| 35.)
On November 2, 2015, the nursing staff at SUSP evaluated Brown

for his complaints of hernia repair complications. Specifically, [Brown]
presented with complaints of pain and pulling in the right abdominal
quadrant. The nurse noted that [Brown] was seen by a specialist a few
months ago. Upon examination, [Brown] was noted to be in no acute
distress, bowel sounds were present in all four quadrants, and his abdomen
was soft and non-tender. [Brown] described his pain as sharp and constant

with a pulling feeling in the right upper quadrant and right lower quadrant.
The nurse recommended that [Brown] be referred to the physician for
follow[-]up.

{Id. 1137.) On November 9,2015, Dr. Gujral examined Brown for his complaints of
continued pain inthe groin and lower abdomen. {Id. ^ 38.) Dr. Gujral noted that Brown
had a healed scar in the inguinal area and "tenderness in the right lower quadrant and

gluteal region of the abdomen." {Id.) Dr. Gujral directed Brown to follow up with the

surgeon who conducted the surgery and submitted a UMD wherein he "recommended
that a CBC, CMP, and lipids sedatebe performed." {Id.)
On November 9, 2015, Dr. Gujral submitted a request to Armor Correctional

Health Services, Inc. for a folIow[-]up appointment with general surgery at Southampton

Memorial Hospital for Brown. {Id. TJ 39.) "OnNovember 10, 2015, SUSP received

approval for the UMD appointment with the general surgeon at Southampton Memorial

12

Hospital." {Id.

40.) Brown was scheduled for a surgery consultation on November 19,

2015.

Following his examination ofBrown, the physician at Southampton Memorial
Hospital found "mild tenderness to palpation, rt. [right] extension oblique no deficit,
wound site well healed." {Id. H42.) The consulting physician recommended that Brown
apply a warm compress to the wound cite "for fifteen minutes daily for five days, and
further recommended that an abdominal and pelvic CT with oral contrast be performed
for the diagnosis of abdominal wall pain." {Id.) The consulting physician further
restricted Brown from engaging in strenuous activity. {Id.)
On November 23, 2015, Dr. Gujral evaluated Brown for his complaints of

continued pain at the hernia site. {Id. Tf 43.) Dr. Gujral noted that Brown "had a CT of
the abdomen done with contrast on November 19,2015 while at Southampton Memorial
Hospital, but the results were not yet available. [Dr. Gujral] advised [Brown] that he

undergo an abdominal and pelvic CT as recommended by general surgery at
Southampton Memorial Hospital." {Id.)
On November 23, 2015, Dr. Gujral submitted an Armor Correctional Health

Services, Inc. consultation request for an abdominal and pelvic CT. {Id. If 44.) "On
November 24,2015, SUSP received approval for the recommended abdominal

and pelvic CT, and an appointment was made for [Brown] to receive this imaging on
December 2, 2015 at Southampton Memorial Hospital." {Id. ^ 45.)
On November 30, 2015, the mailroom at SUSP received Brown's Complaint.
(ECF No. 1-2.)
13

On December 2, 2015, Brown received an abdominal and pelvic CT with contrast

at Southampton Memorial Hospital, which resulted in the following findings:
Inferior Thorax: Small hiatal hernia with mild contrast in the distal

esophagus. No acute pathology. Borderline cardiomegaly. Liver and
Spleen: Normal size and contrast enhancement. No focal lesion. No intra
or extrahepatic biliary distension. Pancreas: Normal. Adrenals: Normal.
Gallbladder: Normal. Kidneys: Normal size and contour. No focal

calcification, lesion, or hydronephrosis.

Normal ureters.

Bowel and

mesentery: No acute pathology. No obstruction or free air. No free or
localized peritoneal fluid or inflammation. Mild to moderate stool

retention. Scarring in the right inguinal canal from previous surgery.
Normal appendix. No hernia. Bladder: Nonnal. Pelvic Organs: Mild to
moderate prostate enlargement to be correlated with PSA. Lymphatics: No
pathologic adenopathy. Vessels: Mild atherosclerotic calcification of the

aorta, iliac, left femoral arteries. No aneurysm. Bones and soft tissues: No
acute pathology. Moderate L3-4 and mild L4-5 degenerative disc disease

with mild lumbar spondylosis. Small cyst in the right acetabulum.

(Gujral Decl. ^ 48.) Brown was returned to SUSP that day. {Id. 49.) On December
21,2015, Dr. Gujral noted that Brown had received an abdominal and pelvic CT on
December 2,2015 that was normal except for scarring in the right inguinal canal. {Id.
150.) On January 7, 2016, Brown was transferred from SUSP to Greensville

Correctional Center. {Id. ^51.)
in. ANALYSIS

To survive a motion for summary judgment on an Eighth Amendment claim.
Brown must demonstrate that Dr. Gujral 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 orone that
is so obvious that even a lay person would easily recognize the necessity for a doctor's

14

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 ofa deliberate indifference claim requires the plaintiff to
demonstrate that aparticular defendant actually knew ofand disregarded a substantial

risk ofserious harm to his person. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
"Deliberate indifference is a very high standard—o. showing ofmere 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 theEighth Amendment for
denying an inmate humane conditions of confinement unless the official

knows of and disregards an excessive risk to inmate health orsafety; 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 drawthe inference

between those general facts and the specific risk ofharm 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 inquestion subjectively recognized a
substantial risk ofharm .... [and] that the official in question subjectively recognized
thathis actions were 'inappropriate in light of that risk.'" Parrish ex rel. Lee v.

Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (quoting
n.2 (4th Cir. 1997)).

15

v. Bruce, 129 F.3d 336, 340

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 oftheir choosing. Hudson v. McMillian, 503 U.S. 1, 9(1992)
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, much less to demonstrate deliberate

indifference. 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 Send Brown to a Specialist

As noted above, Brown's assertion that Dr. Gujral failed to send him to any
specialist to ascertain the cause of his pain is refuted by the record. When Brown

continued to complain ofpain, Dr. Gujral ordered multiple kidney, ureter, and bladder xrays, ordered multiple abdominal and pelvic CT scans, prescribed pain medication, and
secured an additional surgical consultation. Accordingly, Claim 2(a) will be dismissed.

B.

Delay in Sending Brown Back for a Follow-Up with the Surgical Group

In Claim 2(b), Brown faults Dr. Gujral for failing to ensure that Brown was
returned to thesurgical clinic at Southampton Regional Hospital within three weeks of
his surgery on January 27, 2015. (Brown Decl.

5-6.) When, as here, the inmate raises

a complaint pertaining to the delay in medical care, he must also establish that the delay
in the provision of medical care "'resulted in substantial harm.'" Mata v. Saiz, All F.3d

745, 751 (10th Cir. 2005) (quoting Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir.

2001)); id. at754 (quoting Sealockv. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000);
16

see Webb v. Hamidullah, 281 F. App'x 159, 166-67 n.l3 (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 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'l Inmates v.
Lamaro, 834 F.2d 326, 347 (3d Cir. 1987)). As explained below, Brown fails to

demonstrate that the delay in returning him to the surgical clinicresulted in substantial
harm.

Brown had surgery on January 27, 2015. Three weeks from that date would be
February 17,2015. Brown, however, was not returned to Dr. Diep at Southampton
Surgical Associates until April 16,2015. (Medical Records 32.) Although Brown

experienced some pain during this period, the record fails to indicate that the pain was
attributable to any delay in conducting the follow-up appointment. Instead, Dr. Diep
concluded there was "no recurrent hernia at this time" and that Brown's "chronic pain

will likely improve over the next few months." {Id.) Dr. Diep did not indicate that
Brown required pain medication. Accordingly, Claim 2(b) will be dismissed.
Additionally, the record indicates that any delay in returning Brown to

SouthamptonMemorial Hospital for a follow-up appointment with respect to his surgery
is attributable to some confusion with respect to Brown's medical records rather than Dr.
Gujral's indifference. When Brown returned to SUSP following his initial surgery, Dr.
17

Gujral promptly "requested that [Brown] be seen in follow[-]up in the Surgery Clinic in
three weeks." (Gujral Deel.~ 7.) Brown's medical records indicate he had a follow-up
visit with respect to his surgery on February 19, 2015. (Medical Records 25.) On April
16, 2015, when Dr. Diep at Southampton Surgical Associates evaluated Brown for his
complaints of postoperative pain, Dr. Diep also noted that Brown's "last visit was in
February 2015 ...." (Id. at 32.)4 Thus, to the extent that Brown failed to receive a
follow-up appointment with respect to his surgery in February of 2015, such an omission
is attributable to confusion in Brown's medical records, instead of deliberate indifference
on the part of Dr. Gujral.

C.

Alleged Failure to Provide Adequate Pain Medication

Pain medication may adversely impact an inmate's recovery from surgical
treatment. Thus, "[w]hether and how pain associated with medical treatment should be
mitigated is for doctors to decide free from judicial interference, except in the most
extreme situations." Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996). Brown
demonstrates no extreme circumstances here. See, e.g., Martinez v. Mancusi, 443 F.2d
921, 923-25 (2d Cir. 1970) (granting relief when prison doctor prematurely forced
prisoner plaintiff, without hospital ordered pain medication, to walk out of the hospital
and stand for meals after pl~intiff had leg surgery for which hospital specialist had
ordered plaintiff to lie flat and not to walk).

4

Indeed, another physician at SIISP also confirmed upon examining Brown and his medical
records that, as of July of 2015, Brown "had received two post-operative surgical follow-up
appointments at Southampton Memorial Hospital." (Gujral Deel.~ 25.) This notation supports
the inference that Brown's medical records reflected that Brown had received a post-operative
surgical follow-up appointment in February.
18

FollowingBrown's surgery, Dr. Gujral did not prescribe any pain medication until
April 16, 2015. Brown, however, fails to demonstrate that this omission constitutes

deliberate indifference. In assessing a claim of deliberate indifference, the Court also
must consider the totality of medical care provided, rather than simply the additional
treatment the inmate was denied. See Walker v. Peters, 233 F.3d 494, 501 (7th Cir. 2000)
{ciXmg Reed v. McBride, 178 F.3d 849, 855 (7th Cir. 1999)). During this period, Brown

was regularly examined by Dr. Gujral and other medical staff. Brown was observed to be
recovering well from his surgery. Dr. Gujral prescribed medication to treat Brown's

constipation, and when Brown's complaints of discomfort persisted. Dr. Gujral referred
Brown back to the surgical group that performed the surgery. Given these circumstances.
Brown fails to demonstrate Dr. Gujral acted with deliberate indifference by failing to
prescribe pain medication during this initial period after surgery.
After Brown's follow-up appointment with the surgical group. Dr. Gujral swears
that he prescribed Tylenol to treat Brown's discomfort. Brown denies receiving any

Tylenol. This dispute fails to preclude summary judgment as Brown fails to demonstrate
that his discomfort was sufficient to support an Eighth Amendment claim or that Dr.
Gujral acted with deliberate indifference.

Brown described his pain to Dr. Diep as "mild" and rated it "as 3/10." (Gujral
Decl. U 17.) Dr. Diep ftirther predicted that the pain would go away of its own accord.
(Jd.) Upon his return to SUSP following his appointment with Dr. Diep, Brown did not
voice any complaints to Dr. Gujral. Given these circumstances, the failure to prescribe

19

any pain medication would not satisfy the objective prong of an Eighth Amendment
claim.

Nevertheless, Dr. Gujral swears that he did prescribe Tylenol for Brown.

Although Brown denies receiving the Tylenol, Brown fails to demonstrate that Dr. Gujral
was aware that Brown was not receiving the Tylenol, in that Brown's medical records

reflected that Brown was receiving the Tylenol. Thus, Brown fails to demonstrate that
Dr. Gujral was actually aware that Brown faced a substantial risk of serious harm from
the lack of pain medication. See Farmer, 511 U.S. at 837,

Beginning in July of 2015 and regularly thereafter. Dr. Gujral prescribed Pamelor
to treat Brown's pain. Dr. Gujral also ordered multiple procedures and consultations to
discover and alleviate the source of Brown's discomfort. Given these circumstances.

Brown fails to demonstrate that Dr. Gujral acted with deliberate indifference by not
ordering some other pain reliever for Brown. See Diaz v. Turner, 160 F. App'x 360,
362-63 (5th Cir. 2005) (finding inmate's disagreement with decision by medical

personnel not to provide him with nonprescription medication on demand fails to
constitute deliberate indifference to medical needs); Reyes v. Gardener, 93 F. App'x 283,

285 (2d Cir. 2004) (concluding defendants' decision to prescribe Tylenol or Motrin to
manage prisoner's pain and to administer Demerol or Morphine only when necessary did

not constitute deliberate indifference). "It would be nice if after appropriate medical

attention pain would immediately cease, its purpose fulfilled; but life is not so
accommodating. Those recovering from even the best treatment can experience pain."

20

Snipes, 95 F.3d at 592. As Brown has failed to demonstrate that Dr. Gujral acted with
deliberate indifference to his pain. Claim 2(c) will be dismissed.
IV. CONCLUSION

Dr. Gujral's Motion for Summary Judgment (ECF No. 43) will be granted. Claim

2(a) through 2(c) will be dismissed.^ Brown's Motions for Summary Judgment (ECF
Nos. 30, 48) will be denied. The action will be dismissed.

An appropriate Order shall accompany this Memorandum Opinion.

/$/

_

HENRY E.HUDSON

Date: Jgn
Richmond, Virgini
, Virginia

UNITED STATES DISTRICT JUDGE

^Given the preliminary dismissal ofBrown's federal claims, any claims for relief based on state
law will be dismissed without prejudice.
21