Stewart v. Wang et al
Filing
69
MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on 7/22/2020. (Opinion mailed to Pro Se Party via US Mail)(tvt)
Case 7:17-cv-00299-NKM-JCH Document 69 Filed 07/22/20 Page 1 of 8 Pageid#: 491
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
LORENZO STEWART,
Plaintiff,
)
)
)
)
)
)
)
v.
LAURENCE WANG,
Defendant.
Civil Action No. 7:17CV00299
MEMORANDUM OPINION
By: Norman K. Moon
Senior United States District Judge
Lorenzo Stewart, a Virginia inmate proceeding pro se, filed this civil rights action
pursuant to 42 U.S.C. § 1983.1 After the entry of several other opinions and orders that either
dismissed claims or granted defendants’ motions for summary judgment, there is only a single §
1983 claim remaining in the case: Stewart’s claim that Dr. Wang failed to timely treat an injury
to Stewart’s left middle finger. (See Dkt. No. 33 (verified complaint setting forth claim).)
Pending before me is Dr. Wang’s motion for summary judgment. (Dkt. No. 60.) Upon
review of the record, and for the reasons stated herein, I conclude that the motion should be
granted.
I.
FACTUAL BACKGROUND
The evidence before me includes Stewart’s verified complaint regarding this claim (Dkt.
No. 33),2 a declaration from Dr. Wang, Stewart’s medical records from the relevant time period,
and an affidavit filed by Stewart in opposition to the motion for summary judgment. (Dkt. No.
65.)3
1
I omit internal citations, alterations, and quotation marks throughout this opinion, unless otherwise noted.
See United States v. Marshall, 872 F.3d 213, 217 n.6 (4th Cir. 2017).
2
A verified complaint by a pro se prisoner can be considered as an affidavit in opposition to summary
judgment when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d
820, 823 (4th Cir. 1991).
3
Stewart also has submitted a second “affidavit,” (Dkt. No. 63), but it is not signed under penalty of perjury
and is not competent summary judgment evidence. See Fed. R. Civ. P. 56(c). Regardless, even if I were to treat the
statements therein as evidence, doing so would not affect my ruling.
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Dr. Wang is a medical doctor licensed in Virginia. From 2007 to 2009, he was a contract
physician of the Virginia Department of Corrections (“VDOC”) at Green Rock Correctional
Center, and, since 2009, he has been employed directly by VDOC (Wang Decl. ¶¶ 1–2, Ex. A to
Mem. Supp. Mot. Summ. J., Dkt. No. 61-1.) Dr. Wang saw Stewart four times for complaints
related to his left middle finger.
First, on March 14, 2018, Stewart complained of pain in his left hand and middle finger.
Although Dr. Wang’s exam revealed mild tenderness on palpation, Stewart’s range of motion,
based on finger flexion and extension tests, was normal. Dr. Wang nonetheless referred Stewart
for an x-ray of his hand. The x-ray result was normal. Specifically, the radiologist listed as
“findings”:
There is no evidence of acute fracture, dislocation, or osseous
lesion. Carpal and metacarpal bone alignment is normal, and the
joint spaces are preserved. The adjacent soft tissues appear
unremarkable.
(Dkt. No. 61-1 at 5 (March 14, 2018 radiology report).) Under “impression,” the radiologist
wrote, “Normal left hand.” (Id.)
Approximately one month later, on April 24, 2018, Stewart complained to Dr. Wang
again regarding his finger, saying that it would “lock up.” Dr. Wang again performed a physical
exam, and all of the results of the exam were normal. There also were no signs of tenderness or
swelling. Dr. Wang prescribed “conservative” treatment, advising Stewart to engage in rangeof-motion exercises. On April 30 2018, Stewart was seen by Dr. Wang for chronic issues and
did not complain at all about his left hand or his middle finger. (Wang Decl. ¶¶ 9–10.)
On June 27, 2018, Stewart again complained to Dr. Wang about his finger. Despite his
physical exam, which again showed a normal range of motion and no signs of tenderness or
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swelling, Dr. Wang prescribed pain medication for Stewart and again recommended that Stewart
perform range-of-motion exercises. (Id. ¶ 11.)
August 7, 2018 was essentially a repeat of the June 27 appointment. Stewart complained
of pain and movement issues in his finger, but his physical exam showed normal range of
movement, lack of tenderness, and lack of swelling. Dr. Wang nonetheless refilled Stewart’s
pain medication for an additional two months and again recommended range-of-motion
exercises. (Id. ¶ 12.)
Thereafter, Stewart made no further complaints to Dr. Wang about his finger, despite
meeting with him for other medical issues. (Id. ¶ 13.)
Dr. Wang avers that “[a]t no time was Mr. Stewart having serious symptoms related to
fingers on his left hand” and there was “no medical reason,” based on the x-rays and physical
exams, to refer him for an MRI. (Id. ¶ 15.) He further avers that at all times, his treatment of
Stewart’s finger and left hand (and treatment by the Green Rock Correctional Center medical
staff) “was in line with and met the applicable standard of care.” (Id. ¶ 17.)
Notably, Stewart filed an unsworn document titled as an “affidavit” in opposition to the
summary judgment motion, but it does not counter any of Dr. Wang’s evidence. It refers to other
medical issues and complains generally about Dr. Wang’s lack of care for the patients at Green
Rock. The only reference to his finger is the following statement: “My finger is still not up to
part [sic] the tips of my fingers are messed up as I write to you.” (Opp’n 1, Dkt. No. 63.)
Stewart also has filed two additional documents (although he did not seek permission to
file them). (Dkt. No. 65, 66.) In one, an affidavit, he states that he has “been trying to get Dr.
Wang to send [him] out about [his] hand for months now” but seems to say that Dr. Wang is
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putting him off. (Stewart Aff. at 1, Dkt. No. 65.)4
In the second, Stewart again complains generally about Dr. Wang’s alleged lack of care
for the prisoners and alleged failure to do his job. (Dkt. No. 66.) He also alleges that Dr. Wang
will not send him for outside treatment because of the cost. He implores the court to direct “Dr.
Wang to do the job he was hired to do” and to not allow Dr. Wang “to keep getting away with all
the harm that he does to a lot of people.” (Id. at 2.)
Stewart’s verified complaint suggests that Dr. Wang should have sent him to a specialist
for an MRI. It states that the condition of his finger “worsened” and “became even more painful
and swollen” from the lack of additional treatment. (Dkt. No. 33 at 1.) He also alleges that his
middle finger is “clearly bent out of shape in a downward position” and is “swollen at all times.”
(Id. at 1–2.)
II.
DISCUSSION
A. Summary Judgment Standard
Under Rule 56, summary judgment is proper where “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). A
genuine issue of material fact exists only where the record, taken as a whole, could lead a
reasonable jury to return a verdict in favor of the nonmoving party. Ricci v. DeStefano, 557 U.S.
557, 586 (2009). In making that determination, I must take “the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the nonmoving party.” Henry v.
Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).
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Stewart’s affidavit also states that Dr. Wang lied in his declaration when he stated that he saw Stewart
holding a book without difficulty. Stewart contends that the only hand he can hold anything in he uses to hold his
cane and that he cannot hold a book with his left hand. (Stewart Aff. at 1.) This, dispute, however, does not preclude
summary judgment. My decision does not rely at all on Dr. Wang’s testimony about Stewart holding a book without
difficulty.
4
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A party opposing summary judgment “may not rest upon the mere allegations or denials
of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Moreover, “[t]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Id. at 247–48. Instead, the non-moving
party must produce “significantly probative” evidence from which a reasonable jury could return
a verdict in his favor. Abcor Corp. v. AM Int’l, Inc., 916 F.2d 924, 930 (4th Cir. 1990) (quoting
Anderson, 477 U.S. at 249–50).
B. Stewart’s Eighth Amendment Claim
In order to state an Eighth Amendment claim based on the denial of medical care, a
plaintiff must demonstrate that the defendant’s acts (or failure to act) amounted to deliberate
indifference to a serious medical need. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). This
requires a showing of two elements. First, the plaintiff must provide evidence showing that he
suffered from an objectively serious medical need. A “serious medical need” is “one that 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); see also Hudson v. McMillian, 503 U.S. 1, 9 (1992) (explaining that the
requirement that a particular medical need be “serious” stems from the fact that “society does not
expect that prisoners will have unqualified access to health care”).
Second, to show deliberate indifference, the plaintiff must show that subjectively, the
defendant was aware of the need for medical attention but failed to either provide it or ensure the
needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Medical
malpractice does not become a constitutional violation merely because the victim is a prisoner.”
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Estelle, 429 U.S. at 106. Instead, the defendant’s disregard for the plaintiff’s medical condition
must have been “so grossly incompetent, inadequate, or excessive as to shock the conscience or
to be intolerable to fundamental fairness.” Jackson v. Sampson, 536 F. App’x 356, 357 (4th Cir.
2013).
The undisputed facts here show that Stewart cannot establish either prong of his
deliberate indifference claim. First of all, a stiff, swollen, and even painful middle finger is
generally not a “serious medical need.” Indeed, “[n]umerous district courts have held that a
broken finger is generally not a sufficiently serious medical need to support an Eighth
Amendment violation.” Jacobs v. Wilson, No. 3:13-CV-89, 2014 WL 3700553, at *5 (N.D. W.
Va. July 24, 2014) (collecting authority) Here, x-rays showed that Stewart’s finger was not even
broken, and repeated medical exams showed a normal range of motion and no swelling or
tenderness. Thus, he has failed to identify a “serious medical need.”
The evidence before me is also insufficient to allow a jury to find that Stewart has
established the subjective prong of his Eighth Amendment claim. As noted, to establish
deliberate indifference, Stewart must show that Dr. Wang’s conduct was “so grossly
incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness.” Jackson, 536 F. App’x at 357. The first time that Stewart reported his
pain to Dr. Wang, Dr. Wang ordered x-rays, which came back normal. Each time thereafter that
Stewart complained, Dr. Wang performed a physical exam, but the results were always normal.
Dr. Wang prescribed conservative treatment measures, beginning with range-of-motion
exercises, and also including pain medication.
Stewart may have wanted Dr. Wang to do more, but his disagreement with Dr. Wang’s
treatment does not give rise to a constitutional violation. See Jackson v. Lightsey, 775 F.3d 170,
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178 (4th Cir. 2014) (finding that the prisoner’s claim was “essentially a disagreement between an
inmate and a physician over the inmate’s proper medical care, and we consistently have found
such disagreements to fall short of showing deliberate indifference”). “If a medical provider has
a legitimate medical reason for a certain course of treatment, an inmate’s disagreement with the
treatment is not sufficient to succeed on an Eighth Amendment claim.” Sims v. Clarke, No.
7:18-cv-00444, 2019 WL 6534162, at *3 (W.D. Va. Dec. 4, 2019) (citations omitted). Dr.
Wang’s declaration and Stewart’s medical records establish that Dr. Wang had legitimate
medical reasons for the treatment he provided for Stewart’s finger.
Stewart’s verified complaint asserts that the pain worsened and he claims that his finger,
at the time he filed his complaint, was bent out of shape and remained swollen. But these
statements do not create a dispute of fact as to whether Dr. Wang was deliberately indifferent.
First of all, Stewart’s statements do not directly refute the objective results of Dr. Wang’s
physical exams or the notations in Stewart’s records that there was not swelling or tenderness, or
any problems with the range of motion in the last three appointments when the issue was
discussed. As another judge of this court has explained, a plaintiff’s “bare speculation, without
supporting medical evidence, of a need for different or additional treatment is not sufficient to
establish deliberate indifference.” Kinard v. Holloway, No. 7:14CV00230, 2015 WL 5656982,
at *8 (W.D. Va. Sept. 24, 2015).
Second, to the extent that Stewart’s allegations concerning his ongoing pain suggest that
Dr. Wang’s treatment was ineffective, that at most would show malpractice or negligence, but it
does not show deliberate indifference. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985).
In short, there are no facts from which a reasonable jury could find Dr. Wang subjectively knew
of a serious risk to Stewart and was deliberately indifferent to that risk.
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Because Stewart cannot establish either element of his claim, Dr. Wang is entitled to
summary judgment as to Stewart’s § 1983 claim. To the extent that Stewart’s complaint asserts
any state law claims, I decline to exercise jurisdiction over them. See 28 U.S.C. § 1367(c).
III. CONCLUSION
For the reasons stated, I will grant Dr. Wang’s motion for summary judgment as to
Stewart’s claim related to Stewart’s left middle finger. An appropriate order will be entered.
22nd
ENTER: This _____ day of July, 2020.
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