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Giles v. Ulep

United States District Court, E.D. Virginia, Alexandria Division

April 30, 2014

Christopher Giles, Plaintiff,
v.
Benjamin Ulep, Defendant.

MEMORANDUM OPINION

LIAM O'GRADY, District Judge.

Christopher Giles, a Virginia inmate proceeding pro se, has filed a civil rights action, pursuant to 42 U.S.C. § 1983, alleging that medical staff at Sussex II State Prison were deliberately indifferent to his serious medical needs. By an Order dated November 14, 2014, the Court granted, in part, and denied, in part, defendants Dooley and Ulep's joint Motion to Dismiss. Defendant Dooley was dismissed for plaintiff's failure to state a claim against defendant Dooley and defendant Ulep was given thirty days to file a properly-supported Motion for Summary Judgment. On December 16, 2013, defendant Ulep filed a Motion for Summary Judgment, pursuant to Fed.R.Civ.P. 56. Plaintiff was given an opportunity to file responsive materials, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), and has filed a response to defendant's Motion for Summary Judgment [hereinafter Pl.'s Resp.]. Docket No. 30. Defendant then filed a reply to plaintiff's response. Docket No. 31. For the reasons that follow, defendant's Motion for Summary Judgment will be granted.

I. Background

Plaintiff's Statement of Material Facts

Plaintiff's complaint centers around back pain and Cauda Equine Syndrome ("CES") symptoms he argues that he began to show in early 2008. Pl.'s Resp. 5; Dkt. No. 30. Though plaintiff provides a detailed chronology of his requests for medical care, his claims are easily summarized. From May 15, 2008 through October 5, 2010, while incarcerated at Sussex II State Prison ("Sussex II"), plaintiff sought medical treatment for increasingly severe back pain and repeatedly "pleaded" to have an MRI and surgery. Id. at 5-9. Plaintiff was seen by defendant Dr. Ulep ("Dr. Ulep") from May 15, 2008 till July 12, 2010. Id . Dr. Dooley replaced Dr. Ulep at some point between July 12, 2010 and October 5, 2012, when he first saw and treated plaintiff. Id. at 9. Each interaction between Dr. Ulep and plaintiff will be discussed below.

On May 15, 2008, plaintiff first sought treatment from Dr. Ulep complaining that he was having difficulty, and experiencing pain, climbing on and off the top bunk. Am. Compl. 4. Dr. Ulep wrote plaintiff a permanent medical detail for a bottom bunk and prescribed him pain medication. Id. at 4. Dr. Ulep also examined X-rays of plaintiff that had previously been taken at two different institutions. Id . After noting the two had conflicting results, Dr. Ulep ordered another X-ray. Id.

On July 2, 2008, plaintiff had the ordered X-ray taken, which revealed plaintiff had a narrowing of his LS5 disc. Pl.'s Resp. 5. On October 21, 2008, Dr. Ulep saw plaintiff and, for the first time, reviewed and discussed plaintiff's July 2nd X-Ray with plaintiff. Id. at 6. After Dr. Ulep told plaintiff that he had a chronic degenerative disease, plaintiff requested an MRI and surgery; "Dr. Ulep laughed [plaintiff] off saying No Way?" Pl.'s Resp. 6.

From October 21, 2008 through November 30, 2009, plaintiff did not seek treatment for his back pain because at their October 21st appointment Dr. Ulep indicated he would not recommend further treatment. Id . Plaintiff, however, did seek and receive medical treatment from Dr. Ulep during this time for other problems. Pl.'s Resp. 6; Ulep Aft; ¶¶ 13-18. Still, plaintiff "continued to suffer complications" from his back pain during this period and sought help with his back pain during medical appointments that focused on other ailments. Pl.'s Resp. 6.

On December 16, 2009, plaintiff again saw Dr. Ulep because plaintiff was experiencing "excruciating lower back pain and associated complications." Pl.'s Resp. 7. Plaintiff told Dr. Ulep he was experiencing "frequent numbness on the lower side of his body and immobility" and asked about having a MRI and surgery to which Dr. Ulep gave an "unequivocal no' because PHS would not "approve such an expenditure and therefore, he would not recommend it." Id. at 7. Dr. Ulep then told plaintiff he "was wasting his time in continuing to ask about it." Id.

On March 15, 2010, plaintiff sought treatment from Dr. Ulep for severe lower back pain and numbness down his left side and "pleaded" with Dr. Ulep for an MRI and surgery. Id. at 8. Dr. Ulep explained that there was "nothing to be done because PHS would not approve this expenditure and therefore, he would not waste his time in recommending it." Id . Dr. Ulep marked plaintiff's medical chart to denote chronic L5 degenerative disease with uncontrolled pains. Id.

On May 12, 2010, Dr. Ulep updated plaintiff's chart adding "last low back evaluation showed normal spinal ROM in spite [sic] of abnormal mild LS5 changes." Id.

Dr. Ulep was replaced by Dr. Dooley sometime after July 12, 2010. Pl.'s Resp. 9. Dr. Dooley met with plaintiff multiple times and on November 1, 2010, made arrangements to have plaintiff taken to the emergency room at Virginia Commonwealth University Medical Center, where doctors performed an MRI on his spine. Id. at 9. On November 2, 2010, surgeons performed a lumbar left LS-S1 microdiskectomy on plaintiff's back. Id . On January 25, 2011, plaintiff saw Dr. Dooley and asked him why the November 2, 2010 surgery had not improved his condition. Id. at 9-10. Dr. Dooley said "his condition would not improve because the surgery was not performed sooner, and that the resulting effects would be permanent." Id. at 10.

Plaintiff states that he has suffered "physical pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, and loss of capacity to enjoy life" as a result of Dr. Ulep's denial of treatment and delay in treatment. Id . In plaintiff's response to defendant's Motion for Summary Judgment he states that he "declares under penalty of perjury, and the record will show ...


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