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Grandison v. M. Stanford

United States District Court, W.D. Virginia, Roanoke Division

February 26, 2017

TONY DONNELL GRANDISON, Plaintiff
v.
M. STANFORD, et al., Defendants

          MEMORANDUM OPINION

          PAMELA MEADE SARGENT UNITED STATES MAGISTRATE JUDGE.

         The pro se plaintiff, Tony Donnell Grandison, (“Grandison”), an inmate incarcerated at Wallens Ridge State Prison, (“Wallens Ridge”), brings this civil rights action pursuant to 42 U.S.C. § 1983, against the defendants, M. Stanford, Medical Administrator at Wallens Ridge; Dr. McCarthy, Head Contracted Physician at Wallens Ridge; Leslie Fleming, Head Warden at Wallens Ridge; and J.C. Combs, Assistant Warden at Wallens Ridge. In his Complaint, (Docket Item No. 1), Grandison claims that the defendants have been deliberately indifferent to his serious medical needs, in violation of his Eighth Amendment rights. Specifically, he claims that he suffers from chronic orchialgia, [1] and that the defendants have denied him treatment for this condition.

         This matter has been transferred to the undersigned based on the parties' consent pursuant to 28 U.S.C. § 636(c)(2). The matter is before the court on Grandison's motions for preliminary injunctive relief, (Docket Item Nos. 6, 15, 83), Grandison's motions for summary judgment, (Docket Item Nos. 46, 59), and the defendants' motions for summary judgment, (Docket Item Nos. 37, 53). The undersigned previously heard Grandison's first two motions for preliminary injunctive relief, (Docket Item Nos. 6, 15), and issued a Report And Recommendation recommending that preliminary injunctive relief be entered ordering the defendants to provide the prescribed medical treatment for his chronic orchialgia. (Docket Item No. 57.) The defendants objected to this Report And Recommendation. (Docket Item No. 66.) Before the district judge could rule on these objections, the parties consented to jurisdiction before the Magistrate Judge, and the case was transferred to the undersigned. The court heard the pending cross-motions for summary judgment on October 4, 2016. Based on the arguments and representations of Grandison and counsel for the defendants, and the evidence before the court, the court will deny Grandison's requests for preliminary injunctive relief, deny all motions for summary judgment and instruct the Clerk's Office to schedule plaintiff's claims for jury trial.

         I. Facts[2]

         Grandison is a Virginia Department of Corrections, (“VDOC”), inmate, who has been housed in segregation at Wallens Ridge since his arrival there on August 14, 2014.[3] At his July 13 hearing on preliminary injunctive relief, Grandison testified that, since 2013, he has suffered from testicular pain, particularly on the left side, for which he was referred to the Medical College of Virginia, (“MCV”), by the institutional physician at Lawrenceville. He testified that, in June 2013, Dr. Calhoun at MCV diagnosed him with chronic orchialgia, for which the doctor recommended the following course of treatment: (1) supportive undergarments; (2) Motrin for pain; and (3) referral to a pain specialist for evaluation of his condition and a possible nerve block. Grandison testified that the medical staff at Lawrenceville, however, never followed any of these recommendations before transferring him to Keen Mountain. Likewise, he testified that the medical staff at Keen Mountain ignored these recommendations. Grandison testified that, once he arrived at Wallens Ridge, Dr. Rose Dulaney, the institutional physician at that time, evaluated him and referred him back to MCV, where he saw Dr. Benjamin Ulep in January 2015. After evaluating Grandison, Dr. Ulep also ordered supportive undergarments and referral for pain management. Thereafter, on February 21, 2015, Grandison saw Regina C. Foster, P.A., a physician's assistant at MCV, for a follow-up appointment. After an ultrasound of Grandison's left testicle failed to pinpoint the source of his pain, Foster recommended supportive undergarments, Motrin and referral to pain management.

         Grandison testified that defendant M. Stanford, the Medical Administrator at Wallens Ridge, has advised him that supportive undergarments cannot be provided, as he could use them to choke himself. She further has advised him that Wallens Ridge does not provide pain management services. According to Grandison, he has received no treatment for his chronic orchialgia at Wallens Ridge except for orders for ibuprofen, which does not relieve his testicular pain and causes pain in his right kidney. Despite Grandison's complaints to her that Motrin causes him right kidney pain, Stanford has offered no alternative medication or treatment. Grandison testified that he had requested to be prescribed Mobic, which he had received at Lawrenceville and which had alleviated his pain, but Dr. C. Lard, another institutional physician at Wallens Ridge, advised him in February 2016 that there was nothing else he could take. He testified that the medical staff at Wallens Ridge will not explain to him why he cannot be prescribed Mobic. He testified that he also received a jock strap while at Lawrenceville, but it was too small, resulting in pain and discomfort. Although a larger size was ordered, he was transferred to Keen Mountain before he received it. In July 2016, Grandison testified that he had not been provided any type of supportive undergarment at Wallens Ridge. At his October 4, 2016, hearing, Grandison conceded that he had been provided supportive undergarments on September 15, 2016. Counsel for the defendants also notified the court at this hearing that Grandison had been placed on a list to be seen by a pain management specialist. To date, however, the defendants have provided the court with no evidence that Grandison has been seen by such a specialist.

         According to Grandison, he has exhausted his administrative remedies on this issue nine times and testified that he believed he is viewed as a nuisance at this point. According to Grandison, he has received 13 request forms back, advising him to take the issue up with the Medical Department. He further stated that he has made both the Assistant Warden and the Warden aware of his situation, but they have failed to take any corrective action. In particular, he testified that he had shown them both request forms in 2015 and 2016, as well as the medical reports from MCV. Both Warden Fleming and Assistant Warden Combs have deemed Grandison's grievances unfounded based on Stanford's statements that he is being treated according to Wallens Ridge physicians' plan of care. In response, however, Grandison contends that VDOC Operating Procedure, (“OP”), 720.1[4] provides for transfer to another facility if the offender's current facility cannot manage the health problem at issue.

         Grandison testified that, since 2014, he has seen five institutional physicians at Wallens Ridge, all of whom have advised him that the facility does not provide pain management. Grandison testified that he suffered testicular pain on a daily basis with intermittent swelling. At his July hearing, Grandison rated his pain as a 5 to 7 on a 10-point scale. Grandison testified that he saw Nurse Lori Davis the day before the hearing, at which time she said that Stanford had stated that the recommendations of the three outside treatment providers were just that - recommendations, and that the institutional physician controls an inmate's plan of care. He testified that ibuprofen was the most recent medication provided to him.

         The parties also have provided numerous of Grandison's medical records to the court, including a VDOC Consultation Report, dated June 19, 2013, while he was housed at Lawrenceville, which indicates that Dr. Calhoun referred him to the Urology Department at Virginia Commonwealth University, (“VCU”), for left testicular pain for four months without improvement on doxycycline, Cipro and NSAIDS. (Plaintiff's Exhibit No. 2, Docket Item No. 34-2.) It further noted that an ultrasound was negative. The consulting physicians at VCU, Drs. Orton and Habibi, diagnosed chronic orchialgia and recommended ibuprofen (600 mg as needed for pain); scrotal support at all times; and referral to a pain specialist for a possible nerve block. In a Pre-Registration Request Form, dated May 12, 2014, while Grandison was housed at Keen Mountain, an appointment was requested for a new patient evaluation for pain management for chronic orchialgia, for which a referral to a pain specialist for a possible nerve block in the left testicle was recommended. (Docket Item No. 42-1 at 15.) There is a handwritten note attached to this form, stating as follows: “At WRSP. We do have a pain [management] clinic, but they do not see our [patients] here. Sorry for the inconvenience. Please refer elsewhere.” In an undated VDOC Specialty Service/Consultation Request, completed while Grandison was at Wallens Ridge, it is noted by Dr. Benjamin T. Ulep, M.D., that the Urology Department at MCV had recommended conservative measures and pain management, as well as a possible nerve block. (Plaintiff's Exhibit No. 3, Docket Item No. 34-3.) Dr. Ulep noted that Grandison was referred back to the urologist, who he saw on January 21, 2015.

         Grandison also has provided the treatment note from this January 21, 2015, visit to the Urology Department at MCV, at which time he saw physician's assistant Regina C. Foster. (Plaintiff's Exhibit No. 4, Docket Item No. 34-4.) She noted that the department had been following Grandison for almost two years for his chronic left testicular pain. Grandison reported being prescribed Mobic, which he did not feel was helping, and the facility provided a jock strap, but it was too small, making matters worse. He reported experiencing daily pain, ranging from 5 to 8 on a 10-point scale. Foster stated that, because Grandison's pain had persisted, she would order a repeat ultrasound. However, she informed him that there was not a lot more they could do for him since they could not find a cause for his pain. Grandison stated that he would try to obtain a larger jock strap. Foster recommended that, when his symptoms were unbearable, he could take ibuprofen, and he was to follow up with her once the ultrasound was completed. Foster stated that if they still could not find a cause for Grandison's pain, they again would recommend the facility refer him to a pain specialist for evaluation and a possible nerve block.

         Grandison also has submitted into evidence a treatment note from February 18, 2015, from physician's assistant Foster. (Docket Item No. 42-1 at 16.) Foster noted that a scrotal ultrasound from February 5, 2015, had failed to reveal any abnormalities. She noted Grandison's chronic orchialgia diagnosis and stated that a cause could not be determined. Therefore, she indicated that she had advised the facility to get him in with a pain management specialist.

         Grandison also has provided sworn affidavits, stating that, in early March, 2016, [5] he spoke with Dr. McCarthy regarding treatment by a pain management specialist, but Dr. McCarthy said he would not get that type of treatment because “Wallens Ridge just doesn't provide that kind of treatment.” (Docket Item No. 42-1 at 37.) Grandison has stated that he also requested referral to a pain specialist when he saw Dr. McCarthy on April 15, 2016. On this occasion, Grandison said that Dr. McCarthy told him Wallens Ridge “does not provide a pain specialist.” (Docket Item No. 60 at 5.)

         Grandison has stated that he had written several request forms and shown Warden Fleming documents regarding this issue, but he failed to respond. (Docket Item No. 42-1 at 37.) Grandison stated that he spoke with Assistant Warden Combs, showed him documents and wrote him multiple request forms pleading for his help to get proper treatment. (Docket Item No. 42-1 at 37.) However, Grandison said, they both have refused to thoroughly investigate these issues. (Docket Item No. 42-1 at 37.) Grandison also has submitted three Offender Request forms, directed to Assistant Warden Combs. These Offender Request forms are dated February 28, March 2, and March 3, 2016. In the first one, Grandison stated that Combs needed to do something about seeing that he got adequate medical treatment. (Docket Item No. 42-1 at 45.) Grandison further noted that he had shown Combs documentary evidence of his medical condition and the recommended course of treatment, but claimed that Combs failed to correct the Medical Department's failure to treat him. Assistant Warden Combs's response was only to ask Grandison where he was provided treatment. In the March 2, 2016, Offender Request form, Grandison again stated his need for adequate medical treatment, which he could not obtain at Wallens Ridge. (Docket Item No. 42-1 at 46.) He requested a transfer to an appropriate facility as contemplated by OP 720.1. In his response, Assistant Warden Combs simply stated that he was not a medical expert and asked Grandison to address this issue with the Medical Department. The following day, on March 3, 2016, Grandison submitted another Offender Request form to Combs. (Docket Item No. 42-1 at 47.) Grandison acknowledged that Combs was not a medical expert, but alleged that, in his position, he is in charge of all employees at Wallens Ridge's administration and responsible for the welfare of the inmates. He further alleged that Combs had failed to take any initiative to investigate any of his issues even after he showed him documentary evidence of what the last off-site medical provider recommended as a treatment plan. Lastly, Grandison alleged that Combs was over the nursing staff and could make them properly carry out their jobs. Combs, again, simply stated that he is not a medical expert.

         Grandison also has submitted an Offender Request form, dated August 3, 2015, on which he noted continued testicular pain. (Docket Item No. 42-1 at 40.) Defendant Stanford responded that this testicular pain was something he had experienced for years. In a February 20, 2016, Offender Request form, Grandison requested sick call for supportive undergarments, among other things. (Docket Item No. 42-1 at 44.) Stanford responded that he was scheduled for sick call. In a May 11, 2016, Offender Request form, Grandison requested sick call for multiple issues, including supportive undergarments, pain medication and ...


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