United States District Court, E.D. Virginia, Richmond Division
Roderick C. Young, United States Magistrate Judge
Gilchrist, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. 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.
SUMMARY OF ALLEGATIONS
Particularized Complaint,  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.
STANDARD FOR SUMMARY JUDGMENT
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").
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
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. 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).
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
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.
arrived at Keen Mountain Correctional Center
("KMCC") on March 3, 2015. (Medical Records 1, ECF
No. 72-2.) During intake, Gilchrist told medical
staff that he suffered from a "very serious stomach
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 and placed him on the doctor's list
for further evaluation. (Id; see also Lard Decl.
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") 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
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.)
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.)
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. ¶ 29.) The nurse ...