United States District Court, W.D. Virginia, Roanoke Division
NORMAN K. MOON, District Judge.
Lewis Ellis Arnette, a Virginia inmate proceeding pro se, filed an amended complaint, pursuant to 42 U.S.C. § 1983, alleging, inter alia, that defendant Dr. Khairul Emran delayed adequate medical treatment for his digestive disease between October 25, 2010, and March 10, 2011, in violation of the Eighth Amendment of the United States Constitution. I presently have before me several miscellaneous motions and Dr. Emran's motion for summary judgment, which the parties have fully briefed. For the reasons stated herein, I will grant Dr. Emran's motion for summary judgment. Regarding the various remaining motions, I will grant Dr. Emran's motion for a protective order, and I will deny Dr. Emran's motion to strike and Arnette's motion for issuance of a subpoena duces tecum, motion to exclude, and motion to compel discovery.
Arnette was incarcerated at Coffeewood Correctional Center ("Coffeewood") where Dr. Emran was the primary physician during the times relevant to this action. Arnette suffers from ulcerative colitis, and Arnette claims that Dr. Emran unlawfully delayed Arnette's consultation with a gastroenterologist between October 25, 2010, and March 10, 2011.
Arnette alleges in the amended complaint that his ulcerative colitis began causing "bloody flares" on July 12, 2010, and he filed a sick call request on July 13. On July 16, Arnette was called to the medical department where Nurse Hickman evaluated Arnette and completed a "Nursing Evaluation Tool, " noting that Arnette's chief complaint was his colitis and going to the bathroom ten to fifteen times a day. Nurse Hickman wrote under "Examination Findings, " "[R]equest [prescription] for diarrhea, " but did not write that Arnette experienced pain or bloody flares. Based on this initial evaluation, Nurse Hickman referred Arnette to Dr. Emran.
Dr. Emran met with Arnette fifteen minutes later, noting in Arnette's medical record that Arnette complained of passing soft stools without blood seven to ten times a day. Dr. Emran examined Arnette's abdomen, noting it was soft, but not tender, and had positive bowel sounds. Dr. Emran also noted that, although Arnette had a history of colitis, Arnette had not experienced a "flare-up" of the condition for the prior eighteen months and that the medicine Flagyl had previously treated the colitis effectively. Dr. Emran again prescribed Flagyl and Imodium for ten days and arranged for Arnette to return for a follow-up visit in two to three weeks. Dr. Emran avers that, based on his review of Arnette's symptoms and medical history during the appointment, he did not believe Arnette was at any serious risk of medical harm or otherwise needed immediate consultant care. First Emran Aff., Docket No. 85-3, ¶ 4.
Dr. Emran evaluated Arnette at the follow-up appointment two and a half weeks later on August 3, 2010. Dr. Emran noted that Arnette reported an increase in bowel movements and that the stools contained mucus but not blood. Medical Record ("M.R."), Docket No. 85-1, at 35. Dr. Emran examined Arnette's abdomen, again noting it was soft, but not tender, and had positive bowel sounds. Concluding that Arnette's symptoms were not improving, Dr. Emran renewed prescriptions for Flagyl, Imodium, folic-acid tablets, Klor-con, and sulfasalazine and also prescribed an antibiotic. Dr. Emran also took the additional step of completing a "Consultation Request" form, which initiated the process for Arnette to consult with a gastroenterologist at the Medical College of Virginia ("MCV") in Richmond, Virginia, and he gave the completed form to his administrative assistant for processing. Dr. Emran avers that, based on his review of Arnette's symptoms and medical history during that appointment, he still did not believe that Arnette was at any serious risk of medical harm or otherwise required immediate consultant care. First Emran Aff. ¶ 6. Consequently, Dr. Emran characterized the consultation as "routine" and not as a "priority, " "urgent, " or an "emergency." M.R. at 24.
Dr. Emran's consultation request was approved on August 10, 2010, and Dr. Emran's administrative assistant called MCV on August 25, September 16, October 20, and November 1, 2010, but was unsuccessful in scheduling Arnette's consultation with an MCV gastroenterologist. On November 1, MCV told the administrative assistant that, due to MCV's scheduling availability, an appointment would not occur until after January 1, 2011. The administrative assistant informed Dr. Emran on November 11, 2010, about the delay, and Dr. Emran said the wait was permissible because he did not believe Arnette would suffer any harm by waiting until after January 1, 2011, for the consultation.
Nurse Wilcox scheduled the next available appointment for February 9, 2011, at MCV. When security staff attempted to transport Arnette to MCV for the consultation on February 9, Arnette refused to go because he believed he might soil himself during the ninety-minute commute to MCV. Consequently, security staff did not transport Arnette to MCV on February 9. On February 14, a nurse scheduled, and Dr. Emran approved, a new consultation for March 10, 2011, with Gastroenterology Associates, PC, in Warrenton, Virginia, which is an approximately fifty-minute commute from Coffeewood.
Arnette saw Dr. Kim of Gastroenterology Associates, PC, on March 10. Dr. Kim reported that Arnette complained of diarrhea but "denie[d] rectal bleed for about 8 months. He denie[d] significant abd[ominal] pain that comes and goes. He eats well and has gained weight." Id. at 21. Dr. Kim noted that Arnette appeared "well developed, well nourished, and in no acute distress." Id. at 22. Ultimately, Dr. Kim requested that Arnette return for a follow-up visit in two months, and he recommended a regimen of prednisone to be tapered for the next six weeks because the ulcerative colitis was "chronically active" and "uncontrolled." Dr. Kim also noted that Arnette may need a colonoscopy in the future for further diagnosis. Notably, Dr. Emran prescribed Dr. Kim's recommended prednisone treatment on that same day, March 10.
On May 12, 2011, Dr. Emran submitted another "Consultation Request" form seeking approval for a "priority" follow-up consultation within fourteen days. An administrator approved Dr. Emran's request on June 20, 2011, and Arnette met with Dr. Banson of Gastroenterology Associates, PC, on June 22, 2011. Dr. Banson recommended a colonoscopy to evaluate Arnette's colon. In light of Dr. Banson's recommendation, Dr. Emran submitted a third "Consultation Request" form that same day to get approval for the colonoscopy.
Dr. Arnold performed the approved colonoscopy on August 9, 2011. The procedure revealed an "endoscopically normal colon" with a suspicion of "very mild proctitis." Id. at 23, 38. The pathology report on biopsies taken during the colonoscopy reads, "The findings are consistent with the history of colitis with current minimal activity. There is no evidence of dysplasia or malignancy in any of the biopsies." Id. at 39. As of his last known consultation with Dr. Arnold in December 2011, Arnette denied having blood or mucus in bowel movements, and Dr. Arnold concluded that, inter alia, a prescription of balsalazide and Imodium, which Arnette was already taking, should be sufficient treatment. Id. at 23.
A party is entitled to summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact. Fed.R.Civ.P. 56(a). Material facts are those necessary to establish the elements of a party's cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable fact-finder could return a verdict for the non-movant. Id. The moving party has the burden of showing - "that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant satisfies this burden, then the non-movant must set forth specific, admissible facts that demonstrate the existence of a genuine issue of fact for trial. Id. at 322-23. A party is entitled to summary judgment if the record as a whole could not lead a rational ...