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Carter v. Ulep

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

February 6, 2015

Jacori Andre' Carter, Plaintiff,
v.
Benjamin Ulep, et al., Defendants.

MEMORANDUM OPINION

LEONIE M. BRINKEMA, District Judge.

Jacori Andre' Carter, a Virginia inmate proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is no stranger to this Court, this being one of five lawsuits he has filed in the past four years. See Carter v. Fanner et al., Case No. 1:11 cv979 (LMB/IDD) (§ 1983 action alleging excessive force, deliberate indifference to medical needs, and Due Process violations; medical claim dismissed pursuant to 28 U.S.C. § 1915A on November 10, 2011; excessive force claim transferred to the Western District of Virginia on January 9, 2012); Carter v. Clarke et al., Case No. 1:13cv1467 (LMB/TCB) (§ 1983 action alleging cruel and unusual punishment and Due Process violations; summary judgment granted for defendant on December 11, 2014); Carter v. Davis et al., Case No. 1:14cv151 (LMB/IDD) (§ 1983 action alleging cruel and unusual punishment and Due Process violations; summary judgment granted for defendant on January 16, 2015); Carter v. Davis et al., Case No. 1:14cv1065 (LMB/IDD) (§ 1983 action alleging cruel and unusual punishment, Due Process violations, and First Amendment violations; dismissed pursuant to 28 U.S.C. § 1915A on December 18, 2014). In addition, as this Court may take judicial notice of its own records and files, under Federal Rule of Evidence 201, particularly when the records of prior litigation are related to the matter under consideration, see Chandler v. O'Brvan, 311 F.Supp. 1121 (D.C. Okl.), rev'd on other grounds, 445 F.2d 1045 (10th Cir. 1971), cert. denied, 405 U.S. 964 (1972); accord Lolavar v. De Santibanes, 430 F.3d 221, 224 n.2 (4th Cir. 2005), it is clear that plaintiff has a history of disciplinary problems at Sussex I State Prison ("Sussex I"). Between March 27, 2013, the date of his arrival at Sussex I, and May 9, 2014, plaintiff received 21 disciplinary infractions. See Carter v. Clarke et al., Case No. 1:13cv1467 (LMB/TCB), Dkt. No. 21.

The remaining defendants in the instant case are Dr. Benjamin Ulep and Nurse Marjorie Woodruff, who plaintiff charges violated his Eighth Amendment rights by showing deliberate indifference to his serious medical needs. In addition to his deliberate indifference claim, plaintiff initially brought an excessive force claim against several prison guards at Sussex I.[1] On July 10, 2014, the Court granted the guards' Motion for Summary Judgment. Dkt. Nos. 48, 49. The Court also granted in part a Motion to Dismiss filed by Ulep and Woodruff. Defendants Ulep and Woodruff then filed a Motion for Summary Judgment on the sole remaining issue of whether the delay in providing plaintiff with any pain medication for his injured knee in August of 2013 constituted deliberate indifference. Dkt. No. 51. Defendants have also filed a memorandum of law and affidavits to support their motion, as well as the notice required by Local Civil Rule 7(K) and Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Dkt. Nos. 50, 52. On September 25, 2014, plaintiff submitted an affidavit in opposition to defendant's Motion. Dkt. No. 61. The defendants filed a Reply, and the plaintiff filed a counter-affidavit in response. Dkt. Nos. 62, 63. For the reasons that follow, defendants' Motion for Summary Judgment will be granted.

I. Background

According to the affidavit of Lt. D. Williams, on August 5, 2013, plaintiff was on a 15-minute watch per instructions of the mental health staff. Memorandum in Support of Summary Judgment by Williams, Wells, Gainey, and Hull ("Corr. Defs.' Mem.") [Dkt. No. 36], Ex. 1 (Williams Aff.) ¶4. Plaintiff had covered his cell door window, was not responding to staff, and would not uncover the cell door window. In response to this situation, the Warden directed that the extraction team enter plaintiff's cell. Id . According to the affidavit of Correctional Officer D. Gainey, who was part of the extraction team, when the team entered plaintiff's cell he "was standing on the sink. He leaped to his bed and onto the extraction team, punching everyone." Con. Defs.' Mem., Ex. 2 (Gainey Aff.) ¶ 4. Due to plaintiff's resistance to the extraction team's attempts to restrain him, the team had to "take [him] to the floor in order to be restrained." Id . Williams Aff. ¶ 9. After restraining plaintiff, the extraction team took him to the medical wing for "appropriate evaluation." Id . Ex. 4 (Wells Aff.) ¶ 4.

Plaintiffs uncontrolled behavior continued when he was brought to the infirmary. In her declaration, defendant Woodruff explains that on August 5, 2013, she was the Director of Nursing for the medical unit, but not the charge nurse. Defendants' Memorandum in Support of Motion for Summary Judgment ("Defs.' Mem.") [Dkt. No. 52], Ex. 1 (Woodruff Decl.) ¶ 7. It was not part of her normal job to assess and treat patients like plaintiff but his behavior - "yelling and screaming at custody staff, laying on the floor, and refusing to move -" caused her to investigate the commotion and help the staff. Id . Because plaintiff refused to move he had to be assisted to the x-ray room. Id.

Woodruff describes plaintiff's non-cooperation as making it "much more difficult to assess his condition and complaints of pain." Id . ¶ 8. It is uncontested in this record that Woodruff saw no objective signs consistent with either a serious injury or severe pain that required pain relieving medication. Id . ¶ 6. The x-ray taken on August 5, 2013 confirmed Woodruff's statement that there was no evidence of a serious knee injury. The x-ray indicated that plaintiff's knee was not broken, and Woodruff observed only slight swelling in plaintiffs knee. Id . ¶¶ 5-6. Plaintiff did not see defendant Ulep, the doctor at Sussex I, on August 5. See, e.g., Am. Comp. [Dkt. No. 12] "Statement of the Claim, " at 5 ¶ 2; Defs.' Mem., Woodruff Decl. ¶ 11(b). Woodruff informed plaintiff that because his knee was not broken he should return to his cell. Defs.' Mem, Woodruff Decl. ¶¶ 5, 11(a). She instructed him to follow up if he continued to experience pain, and discharged plaintiff without prescribing any pain medication. See id. Woodruff Decl. ¶ 5; Ex. 1A, at MR-90.

Plaintiff was then maintained in four-point restraints for two days, until August 7, 2013. See, e.g., Corr. Defs.' Mem., Williams Aff. ¶¶ 10-12. Between August 8, 2013 and August 10, 2013, plaintiff submitted several emergency grievances complaining of pain in his knee. Various nurses at Sussex I, not including Woodruff, responded to plaintiffs grievances, directing him to submit a request to be seen at Nurse Sick Call. See, e.g., Am. Compl. "Statement of the Claim, " at 6 ¶ 6-9 ¶ 9; Ex. A, at 6-9. The nurses also told him to speak with the nurse on pill call duty, and to request to be taken to the medical wing in a wheelchair or stretcher, if needed. See id. Ex. A, at 8. On August 8, 2013, plaintiff submitted an informal grievance, complaining of the fact that he was "repeatedly being refused assessment by nurses and told to put sick call in which could take approximately 5 days before [he] would be seen." Id. at 9 ¶ 10; Ex. A, at 2. Woodruff responded to plaintiff's informal complaint on August 21, 2013. Id . This is the first documented interaction between Woodruff and plaintiff following her examination of him on August 5, 2013.

On August 11, 2013, after reviewing plaintiffs numerous complaints of pain, Dr. Ulep prescribed Motrin for plaintiff. See Defs.' Mem., Woodruff Decl. ¶ 9; Ex. 1A, at MR-89. Plaintiff received another x-ray on August 22, 2013. See id. Woodruff Decl. ¶ 11(d); Ex. 1A, at MR-46. At this time, and for the first time, it was discovered that plaintiff's left knee was fractured in such a way that was "characteristic of a... ligament injury." Id . Woodruff Decl. ¶ 11(e); see also id. Ex. 1A, at MR-46, MR-86. Ulep met with plaintiff on August 29, 2013, and referred him to the orthopedic clinic at Southampton Memorial Hospital ("Southampton"). Ulep also prescribed Meloxicam, an additional painkiller, to plaintiff for a period of three months. Id.

It is undisputed that, between August 29, 2013 and December 12, 2013, plaintiff continued to see an orthopedist at Southampton for MRIs and other tests, and continued to be prescribed pain medication by Ulep. See, e.g., Defs.' Mem., Woodruff Decl. ¶ 11(f)-(1). Plaintiff had arthroscopic surgery on his left ACL on December 12, 2013. See id. Ex. 1A, at MR-61-MR-64. He has also undergone several follow up appointments and physical therapy. Sees e.g., id. Ex. 1A, at MR-55-MR-57.

Plaintiff initially claimed that both the treatment of his knee and the defendants' failure to provide him with any pain medication immediately after his injury constituted deliberate indifference. On July 10, 2014, the Court granted defendants' Motion to Dismiss the allegations surrounding the defendants' initial treatment, leaving as the only issue whether the defendants' failure to prescribe plaintiff with any pain medication between August 5, 2013 and August 11, 2013, when Dr. Ulep prescribed Motrin, constituted deliberate indifference.

II. Standard of Review

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. The moving party bears the burden of proving that judgment as a matter of law is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet that burden, the moving party must demonstrate that no genuine issues of material fact are present for resolution. Id. at 322. Once a moving party has met its burden to show that it is entitled to judgment as a matter of law, the burden shifts to the nonmoving party to point out the specific facts that create disputed factual issues. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). In evaluating a motion for summary judgment, a district court should consider the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences from those facts in favor of that party. United States v. Diebold. Inc., 369 U.S. 654, 655 (1962).

Those facts which the moving party bears the burden of proving are facts which are material. "[T]he substantive law will identify which facts are material. Only disputes over facts which might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. An issue of material fact is genuine when, "the evidence... create[s] [a] fair doubt; wholly speculative assertions will not suffice." Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), abrogated on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Thus, summary judgment is appropriate only where no material facts are genuinely ...


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