United States District Court, W.D. Virginia, Roanoke Division
SAMUEL G. WILSON, District Judge.
Kelvin A. Canada, a Virginia inmate proceeding pro se, filed this civil rights action under 42 U.S.C § 1983 for damages and injunctive relief against Dr. Daniel Miller,  Nurse Vicki Phipps,  and Fred Schilling, the Health Services Director at Virginia Department of Corrections, alleging Dr. Miller and Nurse Phipps were deliberately indifferent regarding medical treatment for his shoulder while at Red Onion State Prison ("ROSP"), and Schilling was deliberately indifferent for his response to Canada's grievance appeal. Dr. Miller and Nurse Phipps have moved for summary judgment with supporting exhibits and affidavits detailing Canada's treatment and prognosis, and Schilling has moved to dismiss. Because the uncontradicted evidence shows that Dr. Miller and Nurse Phipps were not deliberately indifferent and Canada fails to state a plausible claim against Schilling, the court grants their respective motions.
According to his complaint, Canada had two shoulder surgeries, one in late 2011 and another in early 2012, for which he received post-surgical care that included physical therapy twice a month at Sussex I State Prison ("Sussex"). (Compl. at ¶ 1-5) Canada was then transferred to ROSP where, he alleges, from October 2012 until May 2013, Dr. Miller and Nurse Phipps cancelled his physical therapy appointments and denied him adequate medical care for his shoulder injury. (Compl. at ¶ 7-9) Canada's only allegation against Schilling is that he responded to Canada's grievance appeal, stating: "[T]he decision to provide you with physical-therapy or referral to an orthopedic specialist rests with the clinical judgment of Dr. Miller, " which Canada argues shows Schilling "was clearly deliberately] indifferent by referring Dr. Miller to treat plaintiff['s] orthopedic condition because he/she knew that Dr. Miller is an M.D. and not a physical-therapist or orthopedic [specialist]." (Compl. at ¶ 11-12)
Schilling has moved to dismiss, and Dr. Miller and Nurse Phipps have moved for summary judgment with supporting exhibits and affidavits. According to the uncontroverted evidence, ROSP medical staff saw Canada at least 16 times from October 2012 to May 2013. (ROSP Med. Rec. at 60-83) Dr. Miller evaluated Canada during his intake evaluation and, upon reviewing his medical file, observed that Canada's Sussex medical records noted he "had adequate PT/OT and as per last 8/31/12 (physical therapy) visit, he's regaining more strength as he continues to do his own Theraband exercises." (Miller Aff. at ¶ 7) Based on Canada's medical records and previous examinations, Dr. Miller "saw no indication for further outside physical therapy." (Miller Aff. at ¶ 11) Instead, Dr. Miller prescribed Motrin for Canada's pain and encouraged him to proceed with various range of motion exercises. (Miller Aff. at ¶ 9-11) Canada refused to take the Motrin and to be seen for multiple sick calls he requested, but asked Dr. Miller for Therabands and Tylenol #3 with codeine. (Miller Aff. ¶ 10) Dr. Miller informed Canada the Therabands had been ordered and explained that Tylenol #3 with codeine is "usually reserved for people experiencing pain immediately after surgery." (Id.)
By November 2012, Canada had received a Theraband, and Dr. Miller noted in Canada's medical records that Canada's range of motion for both arms and shoulders was "very good." (Id.) Several months later, Canada appeared to have trouble making a fist, and Dr. Miller ordered an electromyogram (EMG) to check for possible nerve injury and prescribed Naproxen (a pain reliever), which Canada refused to take. (Miller Aff. at ¶ 12-4) The EMG showed some nerve injury, but the neurologist did not recommend any additional physical therapy. (ROSP Med. Rec. at 88-9) Canada's medical records show that Dr. Miller continued to provide medical care for Canada until August 2013, including having ROSP personnel use a "double cuff' to reduce the stress on Canada's shoulder, ordering a follow-up telemedicine visit with an orthopedic specialist at Medical College of Virginia, and prescribing another medication that Canada refused to take.
Canada is currently housed at Sussex, where he has been receiving physical therapy. He has responded to the various motions reaffirming his allegations, and the matter is ripe for disposition.
Canada maintains Dr. Miller and Nurse Phipps were deliberately indifferent for failing to continue post-surgical care for his shoulder. Because the uncontroverted evidence shows Dr. Miller and Nurse Phipps took exhaustive steps to care for Canada's shoulder injury, the court will grant their motion for summary judgment.
The Eighth Amendment prohibits prison officials from acting with deliberate indifference to an inmate's serious medical needs. Estelle v. Gamble , 429 U.S. 97, 105 (1976); Jackson v. Sampson, 536 F.Appx. 356, 357 (4th Cir. 2013) (per curiam); Staples v. Va. Dep't of Corr. , 904 F.Supp. 487, 492 (E.D. Va. 1995). To prevail on a deliberate indifference claim, an inmate must allege he suffered a deprivation that was "objectively sufficiently serious" and "that subjectively the officials acted with a sufficiently culpable state of mind." De'Lonta v. Angelone , 330 F.3d 630, 634 (4th Cir. 2003). This is "a very high standard" and a showing of mere negligence or medical malpractice will not suffice. Estelle , 429 U.S. at 106; Grayson v. Peed , 195 F.3d 692, 695 (4th Cir.1999) (citation omitted). Instead, the official's conduct must have been so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness. Militier v. Beorn , 896 F.2d 848, 851 (4th Cir. 1990). The Eighth Amendment does not require "prison doctors to keep an inmate pain-free in the aftermath of proper medical treatment, " Snipes v. DeTella , 95 F.3d 586, 592 (7th Cir. 1996); Lewis v. Lappin, Nos. 3:10cv130, 3:10cv568, and 3:10cv684, 2011 WL 4961366, at *3 (E.D. Va. 2011), and a mere disagreement between an inmate and medical personnel regarding diagnosis or course of treatment does not state an Eighth Amendment claim. Wright v. Collins , 766 F.2d 841, 849 (4th Cir. 1985); Harris v. Murray , 761 F.Supp. 409, 414 (E.D. Va. 1990).
Here, Dr. Miller and Nurse Phipps provided Canada with prescription medications, rehabilitative aids, neurology consults, EMG testing, and orthopedic consults. Despite their efforts, Canada was often non-compliant by refusing to take medications and to allow medical staff to see him in response to his sick calls. Canada has marshaled nothing to show that Dr. Miller's determination about the physical therapy was based on anything other than his informed medical judgment in light of Canada's Sussex medical records which indicated Canada had received sufficient physical therapy. Although Canada may disagree with his course of treatment at ROSP, such a disagreement fails to state an Eighth Amendment claim. Finding Dr. Miller and Nurse Phipps took exhaustive measures to care for Canada's shoulder injury, the court will grant their motions for summary judgment.
The absence of any deliberate indifference by medical personnel also ends the inquiry as to Schilling. Even so, inmates do not have a constitutionally protected right to a grievance procedure and an official is not liable under § 1983 for a grievance response. Adams v. Rice , 40 F.3d 72, 75 (4th Cir. 1994); Brown v. Va. Dep't Corr., No. 6:07cv00033 , 2009 WL 87459, at *13. (W.D. Va. Jan. 9, ...