Hinton v. McCade et al
Filing
91
MEMORANDUM OPINION. See Opinion for details. Signed by District Judge John A. Gibney, Jr. on 3/29/2018. (sbea, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
DONALD LEE HINTON,
Plaintiff,
V.
Civil Action No. 3:16CV222
P. McCABE, etal.,
Defendants.
MEMORANDUM OPINION
Donald Lee Hinton, a Virginia inmate proceeding pro se and informa pauperis, filed this
42 U.S.C. § 1983 action.
Hinton contends that Defendant Dr. Daniel Calhoun denied him
adequate medical care during his incarceration in the Lawrenceville Correctional Center
("LCC").
The matter is before the Court on Defendant Calhoun's Motion for Summary
Judgment. (ECF No. 74.) Hinton has responded (ECF No. 85), and Defendant Calhoun filed a
Reply (ECF No. 84). For the reasons that follow, the Motion for Summary Judgment will be
GRANTED.
I.
SUMMARY OF RELEVANT ALLEGATIONS
During the pendency of this litigation, Hinton has filed nearly everything as a "Motion,"
and has continuously submitted procedurally improper filings with made-up titles. Hinton's
numerous submissions, including motions, piecemeal complaints, and piecemeal responses to the
Defendant's dispositive motion have made the case difficult to process and his claims difficult to
discern. In his operative Complaint (ECF No. 31),' Hinton contends that Defendant Calhoun
' By Memorandum Order entered on April 18, 2017, the Court construed this document
entitled "((MOTION))" and on the second page "((MOTION TO AMEND))" and its attachments
as Hinton's Complaint and informed Hinton that this new Complaint would supplant all other
violated his rights under the Eighth and Fourteenth Amendments because he was aware that
Nurse McCabe "gave Plaintiff... a contaminated needle that gave Plaintiff the deadly Hepatitis
C virus [and] then lied and said Plaintiff got the virus from a tattoo." (Compl. 2.) Hinton also
vaguely alleges, in sum, that "when Defendant Dr. Calhoun knew Plaintiff got this deadly
Hepatitis C virus he has completely refused any medical treatment and any medication to try and
help the deadly virus." (Jd.) As discussed below, to the extent these vague statements amount to
claims for relief, they are entirely refuted by the record before the Court.
II.
SUMMARY JUDGMENT STANDARD
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 to inform the
court of the basis for the motion, and to identify the parts of the record which demonstrate the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, All U.S. 317, 323
(1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive
issue, a summary judgment motion may properly be made in reliance solely on the pleadings,
depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation
marks omitted). When the motion is properly supported, the nonmoving party must go beyond
the pleadings and, by citing affidavits or "'depositions, answers to interrogatories, and
admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id.
(quoting former Fed. R. Civ. P. 56(c) and 56(e) (1986)).
previously filed complaints. (ECF No. 32.) The Court employs the pagination assigned by the
CM/ECF docketing system to Hinton's submissions. The Court corrects the capitalization,
punctuation, and spelling in the quotations from Hinton's submissions.
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) {c\Xmg 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
(citation omitted). "[TJhere 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 Calhoun submits: (1) his
own declaration (Mem. Supp. Mot. Summ. J. Ex. A, ECF No. 75-1 ("Calhoun Decl.")); and, (2)
Hinton's extensive medical records during the relevant period {id. Ex. B, ECF No. 75-2).
At this stage, the Court is tasked with assessing whether Hinton "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., All U.S. at 324. In response, Hinton submits a sworn
document entitled "Affidavit" (ECF No. 85-1), and several excerpts from what appears to be an
unidentified medical journal and brochures (ECF Nos. 85-2 through 85-3).
The facts offered by affidavit must be in the form of admissible evidence. See Fed. R.
Civ. P. 56(c). In this regard, the statement in the affidavit or sworn statement "must be made on
personal knowledge . . . and show that the affiant is competent to testify on the matters stated."
Fed. R. Civ. P. 56(c)(4). Summary judgment affidavits must also "set out facts that would be
admissible in evidence." 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) (citing Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975 (4th Cir. 1990); see also Md.
Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991)).
In his Affidavit, Hinton makes a number of statements that are of no value in assessing
the propriety of summary judgment. Hinton's statements are either conclusory, immaterial, or
simply disagree with arguments made by Defendant Calhoun.^ Hinton's conclusory and
inadmissible assertions will not be considered in evaluating the Motion for Summary Judgment.
The medical journal excerpts and brochures with Hinton's edits also fail to constitute admissible
evidence. See Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) (citation omitted) (explaining
that "[i]t is well established that unsworn, unauthenticated documents carmot be considered on a
motion for summary judgment."); Lee v. Gurney, No. 3:08CV161, 2009 WL 3208715, at *3
(E.D. Va. Sept. 30, 2009) (citations omitted). Thus, these submissions are not entitled to further
^ For example, Hinton states that "Dr. Calhoun's statement. . . is false and not true. He
the Defendant wants this court to believe in false statements, such as . . . Chronic Hepatitis C
infection is not an immediately life-threatening condition." (ECF No. 85-1, at 1 (internal
quotation marks removed).) Hinton also states that "[t]he Defendant also falsely stated that by
Plaintiff being a diabetic this caused Plaintiffs Hepatitis C!" (Id.) Plaintiffs sworn testimony
as to what he believes constitutes the appropriate, accepted standard of care or the cause of
Hepatitis C is simply not admissible. See Lee v. Gurney, No. 3:08CV161, 2009 WL 3208715, at
*2 (E.D. Va. Sept. 30, 2009) (citing Bell v. Kolongo, No. 1:03CV00502 (GBL), 2004 WL
3247156, at *4 (E.D. Va. Oct. 25, 2004)); see also Pearson v. Ramos, 237 F.3d 881, 886 (7th
Cir. 2001).
consideration in assessing the propriety of summary judgment. While Hinton also swore to the
contents of his Complaint, his Complaint again fails to constitute admissible evidence.^ In light
of the foregoing submissions and principles, the following facts are established for the purposes
of the motion for summary judgment.
III.
SUMMARY OF UNDISPUTED FACTS
Defendant Calhoun has been employed as an institutional physician at LCC since July
2011 and has been practicing medicine for thirty-nine years.
(Calhoun Aff. H 1.) On the
morning of April 15, 2015, Defendant Calhoun and Nurse McCabe were working at LCC. {Id.
^ 4.) Nurse McCabe was responsible for that morning's diabetic call during which diabetic
inmates reported for glucose testing, insulin, and other treatment as needed. {Id.) Hinton was
among the inmates who reported for diabetic call that morning. {Id.
5.) Later that morning,
Defendant Calhoun learned that Nurse McCabe may have reused a needle to administer insulin.
{Id. H6.) Defendant Calhoun was concerned that any cross-contamination could place LCC's
diabetic inmates at risk of contracting infectious diseases and the medical staff were instructed to
obtain laboratory testing samples from the diabetic inmates so medical staff "could obtain a
baseline for monitoring these inmates for infectious diseases." {Id. ^ 7.) Medical staff obtained
^Hinton's allegations against Defendant Calhoun are nothing more than terse conclusions
and fail to constitute admissible evidence.
On March 19, 2018, well after Calhoun filed his Reply to Hinton's Response in
Opposition, the Court also received a document from Hinton entitled, "'Motion' Motion to
Dismiss Defendant Doctor Calhoun's Motion for Summary Judgment, and Affidavit of Daniel
Calhoun, Jr. MD Due to False Statement That Have Legal Conflict and Dispute." (ECF No. 90.)
Hinton also attaches a second Affidavit ("Second Affidavit") and excerpts fi-om yet another
unidentified medical article in support of his "Motion." (ECF No. 90-1.) Whatever this
submission may be, it is procedurally improper at this juncture. Even if this submission and the
accompanying Second Affidavit were properly before this Court, it too contains nothing more
than legal arguments, conclusory immaterial statements, and unauthenticated documents, and
would fail to constitute admissible evidence.
a laboratory testing sample from Hinton approximately two hours after the morning diabetic call
and the sample was sent out for testing the same day. {Id. 8.)
On June 8, 2015, the medical staff at LCC received the test results for Hinton. {Id. ^ 9.)
The test results indicated that Hinton tested positive for Hepatitis B and C antibodies, {Id.) On
July 1, 2015, medical staff obtained blood samples from Hinton and sent the samples out for
repeat testing. {Id. ^ 10.) On July 7, 2015,'^ the laboratory again reported that Hinton tested
positive for both Hepatitis B and C antibodies. {Id.) On July 14, 2015, medical staff obtained
additional samples from Hinton and sent the samples out for testing to ascertain whether Hinton
was positive for Hepatitis C ribonucleic acid ("RNA"). {Id. H 11.) On July 17, 2015, the
laboratory reported that Hinton was positive for Hepatitis C RNA. {Id.)
On October 2, 2015, medical staff obtained additional samples from Hinton and
Defendant Calhoun ordered testing for the RNA genotype for Hinton's Hepatitis C. {Id. ^ 12.)
On October 9, 2015, the laboratory returned results indicating that Hinton's RNA genotype was
lb, a less prevalent form of Hepatitis C. {Id.) As of April 2015, there were three inmates at LCC
other than Hinton who were known to be infected with Hepatitis C genotype lb and none of
those inmates were diabetic. {Id. H 13.)
Defendant Calhoun avers that
[t]o a certainty, Hinton was infected with Hepatitis C long before [the] incident
[on April 15, 2015]. We obtained laboratory test samples from Hinton within
hours of the cross-contamination incident.
The testing laboratory detected
Hepatitis C and Hepatitis B antibodies in Hinton's test samples. It takes several
weeks for the immune system to produce Hepatitis C antibodies in sufficient
quantity to return a positive laboratory test. Thus, Hinton's belief that he first
became infected with Hepatitis C on April 15, 2015 is a medical impossibility.
^ Defendant Calhoun mistakenly states in his Affidavit that the laboratory reported these
results on July 7, 2017, but the records reflect that Defendant Calhoun meant to state July of
2015 instead. These records were "resulted" on July 3, 2015 and printed by LCC July 7, 2015.
{See ECF No. 75-2, at 64.)
Hinton could only have contracted Hepatitis C several weeks, or even years, prior
to April 15, 2015.
{Id. K 14.) To the extent that Hinton indicates that he has had many blood tests during his
incarceration and had never tested positive for Hepatitis C before, Defendant Calhoun explains
that the laboratory reports prior to April 15, 2015 do not reflect that Hinton was tested for
Hepatitis C on those dates. {Id. H21.)
Defendant Calhoun explains that the nurse suspected of cross-contaminating the insulin
was terminated by LCC because the incident was a breach of medical protocol. {Id. ^ 22.)
Defendant Calhoun was not aware that Nurse McCabe was cross-contaminating needles at the
time of the incident. {Id.)
Defendant Calhoun explains that chronic Hepatitis C is not an immediately life-
threatening condition, and most persons with Hepatitis C generally have a normal life
expectancy. {Id. t 15.) Defendant Calhouh explains that the danger with Hepatitis C is that it
can lead to cirrhosis of the liver; however, it can take years or decades for persons infected with
Hepatitis C to develop cirrhosis. {Id.) Defendant Calhoun explains that those inmates with a
high fibrosis score, which is indicative of cirrhosis, are eligible for certain treatments.
{Id.
Till 17-18.) Hinton's most recent chronic care visit was November 30, 2017 and his laboratory
tests reflected a very low fibrosis score and have generally reflected liver values in the normal
range for a healthy adult. {Id.
19, 20.) Defendant Calhoun explains that Hinton's normal liver
values are not uncommon and he "may go his whole life without exhibiting concerning liver
values." {Id 120.)
IV.
EIGHTH AMENDMENT
In order to survive summary judgment for a claim under 42 U.S.C. § 1983, a plaintiff
must "affirmatively show[] that the official charged acted personally in the deprivation of the
plaintiffs rights." Wright v. Collins, 166 F.2d 841, 850 (4th Cir. 1985) (quoting Vimedge v.
Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). Furthermore, "[t]he doctrine of respondeat superior
has no application" under § 1983.
Id. (citing Vinnedge, 550 F.2d at 928).
Hinton must
demonstrate that each defendant had "personal knowledge of and involvement" in the alleged
constitutional deprivation to establish liability under § 1983.
Id.
To survive a motion for
summary judgment on an Eighth Amendment claim,^ Hinton must demonstrate that Defendant
Calhoun acted with deliberate indifference to his serious medical needs. See Brown v. Harris,
240 F.3d 383, 388 (4th Cir. 2001). A medical need is "serious" if it "has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention." Iko v. Shreve, 535 F.3d 225, 241 (4th Cir.
2008) (quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)).
The subjective prong of a deliberate indifference claim requires the plaintiff to
demonstrate that a particular defendant actually knew of and disregarded a substantial risk of
serious harm to his 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.
^"[I]t is now well established that the Eighth Amendment 'serves as the primary source
of substantive protection to convicted prisoners,' and the Due Process Clause affords a prisoner
no greater substantive protection 'than does the Cruel and Unusual Punishments Clause.'"
Williams v. Benjamin, 11 F.3d 756, 768 (4th Cir. 1996) (quoting Whitley v. Albers, 475 U.S. 312,
327 (1986)). Although Hinton brings his claims under the Eighth and Fourteenth Amendments,
the Court evaluates Hinton's claims solely under the Eighth Amendment.
8
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.'"
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)).
"To establish that a health care provider's actions constitute deliberate indifference to a
serious medical need, the treatment must be so grossly incompetent, inadequate, or excessive as
to shock the conscience or to be intolerable to fundamental fairness." Miltier v. Beorn, 896 F.2d
848, 851 (4th Cir. 1990) (citing Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)).' 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 10304). 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, 766 F.2d at 849 (citing Gittlemacker v.
Prasse, 428 F.2d 1, 6 (3d Cir. 1970)). In this regard, the right to medical treatment is limited to
^The Court recognizes that a portion ofMiltier was overruled in part on other grounds by
Farmer v. Brennan, 511 U.S. 825, 837 (1994). See Goodman v. Runion, 676 F. App'x 156, 160
(4th Cir. 2017).
that treatment which is medically necessary and not to "that which may be considered merely
desirable." Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977).
A.
The Cross-Contaminated Needle
Hinton first contends that Defendant Calhoun violated his rights under the Eighth
Amendment because he was aware that Nurse McCabe "gave Plaintiff... a contaminated needle
that gave Plaintiff the deadly Hepatitis C virus [and] then lied and said Plaintiff got the virus
from a tattoo." (Compl. 2.) Hinton demonstrates no deliberate indifference to his medical needs
by Defendant Calhoun. With respect to Hinton's first contention. Defendant Calhoun was not
personally involved in the cross-contamination of needles on April 15, 2015 and only learned
about the incident later that day.
See Wright, 766 F.2d at 850.
Moreover, the record
conclusively demonstrates that Hinton did not contract Hepatitis C from the incident on April 15,
2015.
B.
Denial of Medical Care for Hepatitis C
Hinton vaguely suggests, in sum, that "when Defendant Dr. Calhoun knew Plaintiff got
this deadly Hepatitis C virus he has completely refused any medical treatment and any
medication to try and help the deadly virus," (Compl. 2.) Hinton fails to identify with any
specificity what medical treatment he desired and was denied by Defendant Calhoun. Moreover,
Hinton simply lacks entitlement to the medical care of his choosing. Hudson, 503 U.S. at 9
(citing Estelle, 429 U.S. at 103-04.) For this reason alone, Hinton's claim fails.
Moreover, Hinton's vast medical record submitted by Defendant Calhoun as an exhibit
refutes Hinton's statement that Defendant Calhoun "completely refused any medical treatment."
(Compl. 2.) When Defendant Calhoun learned of the potential cross-contamination of the needle
during the diabetic call, he ordered laboratory tests in order to have baseline results for Hinton.
10
From that initial test, Defendant Calhoun learned that Hinton tested positive for Hepatitis
antibodies, and he ordered further testing to ascertain the type and stage of the disease. (Calhoun
Aff
7-12.) As Defendant Calhoun explains, the danger of Hepatitis C is that it can lead to
cirrhosis and inmates are monitored for a high fibrosis score that is indicative of cirrhosis.
(Calhoun Aff K18.) Hinton has regular chronic care appointments for his Hepatitis C and has
been monitored for any change in his fibrosis score and liver values. (See, e.g., ECF No. 75-2,
at 4, 11, 19.) At his most recent follow-up on November 30, 2017, laboratory tests demonstrated
that Hinton's fibrosis score was low and that his liver values were in the normal range for a
healthy adult. (Id.
19-20.) Thus, Hinton was not exhibiting symptoms of cirrhosis, the
danger associated with Hepatitis C. See Lee v. Gurney, No. 3:08CV161, 2011 WL 2681225, at
*5-6 (E.D. Va. July 8, 2011) (explaining that refusal to provide certain desired treatments for
Hepatitis C is not deliberate indifference when not a medical necessity).
Hinton wholly fails to demonstrate that Defendant Calhoun knew of and disregarded an
excessive risk to Hinton's health. See Farmer, 511 U.S. at 837. Hinton fails to establish that
Defendant Calhoun actually perceived that Hinton faced a substantial risk of harm by refusing to
provide Hinton with some unspecified treatment.
To the extent that Hinton disagrees with
Defendant Calhoun's method of monitoring and assessment of Hinton's Hepatitis C, Hinton's
disagreement fails to demonstrate deliberate indifference by Defendant Calhoun. See Wright,
766 F.2d at 849 (citing Gittlemacker, 428 F.2d at 6); Brown, 240 F.3d at 389 (alteration in
original) (citations omitted) (internal quotation marks omitted) (holding that "an official who
responds reasonably to a known risk has not disregard[ed] an excessive risk to inmate health or
safety . . . and has therefore not acted with deliberate indifference."). Defendant Calhoun's
method of monitoring and assessing Hinton's Hepatitis C certainly is not "so grossly
11
incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness." Miltier, 896 F.2d at 851 (citation omitted). Hinton fails to demonstrate
that Defendant Calhoun denied him adequate medical care for his Hepatitis C diagnosis.
Hinton's claims against Defendant Calhoun will be DISMISSED.
V.
OUTSTANDING MOTION FILED BY HINTON
On January 5, 2018, Hinton filed a "'Motion' Motion for Summary Judgment with
Roseboro Notice by Plaintiff Donald Lee Hinton."
No. 71.)
("Motion for Summary Judgment," ECF
This Motion for Summary Judgment was filed prior to either Defendant filing a
dispositive motion. Hinton's Motion for Summary Judgment essentially claims that he is entitled
to relief without any persuasive legal argument in support. Accordingly, Hinton's Motion for
Summary Judgment (ECF No. 71) is DENIED.
VI.
CONCLUSION
Defendant Calhoun's Motion for Summary Judgment (ECF No. 74) will be GRANTED.
Hinton's Motion for Summary Judgment (ECF No. 71) is DENIED. Hinton's claims against
Defendant Calhoun are DISMISSED.
An appropriate Order shall issue.
Date: >// »
.
John A. Gibney, Jr. /
United States District Judge
Richmond, Virginia
12
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