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Gilchrist v. Doe

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

March 31, 2017

WILBERT GILCHRIST, Plaintiff,
v.
JOHN DOE, et al, Defendants.

          MEMORANDUM OPINION

          Roderick C. Young, United States Magistrate Judge

         Wilbert Gilchrist, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] By Memorandum Opinion and Order entered on January 27, 2016, the Court dismissed all claims in the action against all Defendants except for Claim One against Defendants Edson and Doe and Claim Two against Defendant M. Oslin. Gilchrist v. Riser, No. 3:14CV630, 2016 WL 354752, at *4 (E.D. Va. Jan. 27, 2016). Subsequently, Gilchrist identified Defendant Doe to be Defendant Lard. (ECF No. 45, at 5.) By Memorandum Opinion and Order entered on July 11, 2016, the Court granted the Motion for Summary Judgment filed by Defendant Oslin, dismissed Claim Two, and dismissed all claims against Defendant Edson without prejudice because of Gilchrist's failure to serve him. Gilchrist v. Doe, No. 3:14CV630, 2016 WL 3766313, at *5 (E.D. Va. July 11, 2016). This matter is before the Court on Defendant Lard's Motion for Summary Judgment. (ECF No. 71). Gilchrist has responded. (ECF No. 77.) For the reasons stated below, Defendant Lard's Motion for Summary Judgment will be GRANTED.

         I. SUMMARY OF ALLEGATIONS

         In his Particularized Complaint, [2] Gilchrist alleges the following with regard to Defendant Lard:

Dr. [Lard] exercised deliberate indifference to plaintiffs multiple internal stomach illness[es] by failing to provide adequate medical internal testing and outside examination by a stomach specialist (gastroenterologist). [Dr. Lard] intentionally refused to fulfill any of plaintiffs requests for follow-up care with [a] gastroenterologist. As a result of. . . Dr. [Lard's] deliberate indifference to plaintiffs internal condition, plaintiff suffer[ed] further pain internally as well as mental anguish. He continue[s] to suffer daily from internal bleeding from his rectum off and on as well as several other internal painful daily symptoms.

(Part. Compl. 2, ECF No. 30 (paragraph numbers omitted).) The Court previously construed Gilchrist to raise the following claim for relief against Defendant Lard:

Claim One: Defendant Lard was deliberately indifferent to Gilchrist's stomach condition by:
(a) "failing to provide adequate medical internal testing" (id); and,
(b) failing to send Gilchrist to a gastroenterologist.

(See ECF No. 34, at 5.) Gilchrist seeks an unspecified amount of damages.

         II. STANDARD FOR SUMMARY JUDGMENT

         Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the responsibility of informing the Court of the basis for the motion and identifying the parts of the record which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or "'depositions, answers to interrogatories, and admissions on file, ' designate 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed.R.Civ.P. 56(c), (e) (1986)). In reviewing a summary judgment motion, the Court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere '"scintilla of evidence'" will not preclude summary judgment. Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "'[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party . . . upon whom the onus of proof is imposed.'" Id. (quoting Munson, 81 U.S. at 448). Additionally, "'Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials").

         In support of his Motion for Summary Judgment, Defendant Lard has submitted: (1) his own declaration (Br. Supp. Mot. Summ. J. Attach. 1 ("Lard Dec!."), ECF No. 72-1) and (2) copies of Gilchrist's medical records ("Medical Records, " id. Attach. 2, ECF Nos. 72-2 through 72-4).

         At this stage, the Court is tasked with assessing whether Gilchrist "has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial." Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993) (emphasis added). As a general rule, a non-movant must respond to a motion for summary judgment with affidavits or other verified evidence. Celotex Corp., 477 U.S. at 324. Gilchrist's Particularized Complaint has a notary seal but fails to indicate that he was administered an oath.[3] Gilchrist also failed to swear to the contents of the Particularized Complaint under penalty of perjury. The Particularized Complaint thus fails to constitute admissible evidence. United States v. White, 366 F.3d 291, 300 (4th Cir. 2004).

         Gilchrist's Response to Defendant Lard's Motion for Summary Judgment is comprised of the following: (1) an "AFFIDAVIT IN OPPOSITION TO DEFENDANT MOTION FOR SUMMARY JUDGMENT" ("Gilchrist Affidavit, " ECF No. 77), (2) an unsworn document entitled "AFFIDAVIT PART TWO LAW AND ARGUMENT" (ECF No. 77-1), and (3) an unsworn document entitled "EXHIBIT-LEGAL NOTES, " to which Gilchrist has attached copies of various medical records that he has annotated, Offender Request Forms, an Offender Diet Order, grievance forms, and the second page from Dr. Lard's Memorandum in Support of Summary Judgment, which Gilchrist has also annotated (ECF Nos. 77-2 through 77-8). However, "[i]t is well established that unsworn, unauthenticated documents cannot be considered on a motion for summary judgment." Or si v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) (citation omitted). "For documents to be considered, they 'must be authenticated by and attached to an affidavit' that meets the strictures of Rule 56." Campbell v. Verizon Va.y Inc., 812 F.Supp.2d 748, 750 (E.D. Va. 2011) (quoting Orsi9 999 F.2d at 92). All of Gilchrist's submissions except his Affidavit run afoul of these rules. Accordingly, the Court will only consider Gilchrist's Affidavit in connection with the Motion for Summary Judgment.

         In light of the foregoing principles and submissions, the following facts are established for the purposes of the Motion for Summary Judgment. All permissible inferences are drawn in favor of Gilchrist.

         III. RELEVANT FACTS

         Gilchrist arrived at Keen Mountain Correctional Center ("KMCC") on March 3, 2015. (Medical Records 1, ECF No. 72-2.)[4] During intake, Gilchrist told medical staff that he suffered from a "very serious stomach problem." (Id.)

         The next day, during sick call, Gilchrist complained to a nurse that he had blood in his stool. (Lard Decl. ¶ 13; Medical Records 2.) The nurse noted that Gilchrist was not in acute distress. (Medical Records 2.) The nurse gave Gilchrist three hemoccult cards[5] and placed him on the doctor's list for further evaluation. (Id; see also Lard Decl. ¶ 13.)

         On March 5, 2015, Gilchrist gave two hemoccult cards to a nurse at KMCC. (Medical Records 2.) Both were positive for blood. (Id.) Later that day, a doctor evaluated Gilchrist for "complain[ts] of blood in his stool, cramps, diarrhea and painful defecation." (Lard Decl. ¶ 17; Medical Records 2.) The doctor's impression was that Gilchrist suffered from severe irritable bowel syndrome ("IBS"). (Lard Decl. ¶ 17; Medical Records 2.) After reviewing Gilchrist's records, the doctor noted that Gilchrist had a normal colonoscopy and esophagogastroduodenoscopy ("EGD")[6] in 2012 and 2013. (Lard Decl. ¶ 17; Medical Records 2.) The doctor "discussed at length that Gilchrist did not have ulcertative colitis." (Lard Decl. ¶ 17.) Gilchrist "agreed to pursue treatment with neurologic/psych medications due to [the] ineffectiveness of anticholinergics." (Id; see Medical Records 3.)[7]

         On March 10, 2015, the doctor who had evaluated Gilchrist "contacted the psychiatric department to discuss the benefits of treatment with Elavil 10mg for Gilchrist's severe IBS" (Lard Decl. ¶ 25.) The doctor did not want to start Gilchrist on Elavil "without involvement of the psychological department" because of Gilchrist's history of bipolar disorder. (Id.) The next day, "the psychiatric department reported that Gilchrist had not been on any psychotropic medications since March 2014, and when he was prescribed these medications he was only 40% compliant." (Id. ¶ 26; see Medical Records 19.) The department "asked the doctor to proceed with the treatment suggested." (Lard Decl. ¶ 26; see Medical Records 19.)

         On March 12, 2015, a doctor at KMCC examined Gilchrist because of Gilchrist's complaints of "weight loss and the inability to eat certain foods." (Id. ¶ 27.) Gilchrist "had positive bowel sounds and tenderness in the left upper quadrant." (Id.; see Medical Records 4.) The doctor did not locate any palpable masses. (Medical Records 4.) The doctor noted that Gilchrist's 2013 EGD had normal results "other than a non-obstructing Schatski ring in the lower 1/3 of the esophagus." (Lard Decl. ¶ 27.) The doctor diagnosed Gilchrist with leg swelling and IBS. (Medical Records 5.) Gilchrist's diet order was modified, and the doctor prescribed Elavil. (Id.)

         On April 24, 2015, a nurse saw Gilchrist for his complaint that his medication was not helping with weight loss. (Id. at 6.) Gilchrist refused to have his vital signs taken. (Lard Decl. ΒΆ 29.) The nurse ...


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