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Gilmer v. Smith

United States District Court, Western District of Virginia, Roanoke Division

March 3, 2015

JASON NATHANIEL GILMER, Plaintiff,
v.
DR. SMITH, et al., Defendants.

MEMORANDUM OPINION

Norman K. Moon United States District Judge

Jason Nathaniel Gilmer, a Virginia inmate proceeding pro se, filed an amended complaint, pursuant to 42 U.S.C. § 1983. Gilmer names as defendants L. Fleming, Warden of Keen Mountain Correctional Center (“KMCC”), A. Whited, head nurse at KMCC, and Dr. Smith, the physician at KMCC. Gilmer alleges that defendant Dr. Smith failed to adequately treat Gilmer’s broken femur, in violation of the Eighth Amendment of the United States Constitution. Presently before me are defendants’ motions for summary judgment. Gilmer has filed responses to the motions, and this matter is ripe for disposition. Upon consideration of this action, I conclude that Fleming’s and Whited’s motions for summary judgment should be granted but that disputes of material facts preclude awarding summary judgment in favor of Dr. Smith.

I.

A.

Gilmer sustained multiple injuries, including fractures in his left tibula, left ankle, right ankle, right foot, right femur, and neck vertebrae, during an automobile accident in 2009. Gilmer began his incarceration at a regional facility in 2010 and subsequently arrived at KMCC in June 2012.

Upon his arrival at KMCC, Gilmer began writing requests for medical services, requesting, inter alia, copies of his medical record, an assignment to a bottom bunk in a cell on the first floor due to “a lot of pain” from the titanium hardware in his legs and ankles, and more pain medication. Nurse Whited responded to most of the requests, often telling Gilmer to request a sick call, that he is scheduled to see the doctor, or that he already met with the doctor about the issue.

Gilmer complained of right knee pain when he met with Dr. Smith on November 20, 2012, and after an examination, Dr. Smith concluded the joint was stable without loss of muscle mass. Nonetheless, Dr. Smith ordered that an X-ray be taken of Gilmer’s right knee and femur. Dr. Smith read the private doctor’s subsequent report dated November 30, 2012, which noted a “[f]racture of the proximal shaft of the femur is noted with internal fixation. There is no union across the fracture line. The alignment is[, ] however, normal. No abnormalities are seen at the knee.”[1] Imaging Report dated Nov. 30, 2012 (Docket No. 35-4 at 12).

Dr. Smith met with Gilmer again on January 3, 2013, noting that Gilmer’s gait with crutches was stable and that Gilmer wanted, inter alia, a knee brace and insoles. Dr. Smith explained the private doctor’s report about the nonunion, that alignment was normal, and that there were no abnormalities in the knee. Dr. Smith ordered X-rays of Gilmer’s right ankle and hip, insoles, a bottom bunk housing assignment, and naprosyn instead of ibuprofen to manage pain.

Dr. Smith read the private doctor’s subsequent X-ray report dated January 8, 2013, which noted, inter alia, that “[p]ost-operative changes of internal fixation of fracture of the proximal femur is noted . . . . Fracture line is still open. Soft tissues are unremarkable.” After reading this second report, Dr. Smith concluded that the treatment plan of various physical supports and medications remained appropriate, and he declined to order surgery or a consultation with another physician. Gilmer left the care of Dr. Smith on February 13, 2013, when he was transferred to Green Rock Correctional Center (“Green Rock”).

B.

After defendants filed motions for summary judgment, Gilmer filed a motion to amend to attach a new exhibit to the complaint. Within a month of arriving at Green Rock, another prison doctor sent Gilmer to a doctor at a private orthopedic clinic, who concluded:

His x-rays show that he has a subtrochanteric fracture that was treated with an interlocking nail. He has gone on to a nonunion. The distal screw is either bent or broken.
At the present time[, ] he has an atrophic nonunion and this will need further surgery in order to try to make it heal. They will probably need to take out the rod and the screws and subsequently place a large nail in it and this may go on to heal. However, he may need subsequent bone grafting[, ] and he is aware of this . . . . [T]his ...

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