United States District Court, E.D. Virginia, Alexandria Division
ELLIS, III UNITED STATES DISTRICT JUDGE
James Gregory, Jr., a Virginia inmate proceeding pro se, has
filed a civil rights action, pursuant to 42 U.S.C. §
1983, alleging violations of his constitutional rights at
Haynesville Correctional Center (HCC). Defendant Dr. Levin
has now filed a Motion for Summary Judgment, as well as a
memorandum of law and supporting exhibits.Dkt. Nos. 81 -89.
Plaintiff was given the Notice required by Local Rule 7(K)
and the opportunity to file responsive materials pursuant to
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975).
Plaintiff filed two pleadings, styled Motion to Refute
Defendant's Argument and Show Why Plaintiffs Facts Were
Supported by Undisputed Evidence, Dkt. No. 99, and
Notification, Dkt. No. 100, which will collectively be taken
as his Opposition to Dr. Levin's Motion for Summary
Judgment. Plaintiff also filed a separate pleading
styled Declaration in Support of Plaintiff s Motion for
Partial Summary Judgment, which will be taken as a Motion for
Partial Summary Judgment. Dkt. No. 104. Dr. Levin filed a
response. Dkt. No. 106. For the reasons that follow,
defendants' Motion for Summary Judgment must be granted,
and plaintiffs Motion for Partial Summary Judgment must be
following facts are undisputed. Plaintiff suffers from
ulcerative colitis. Dkt. No. 22. As a result, he must use the
bathroom ten to fifteen times a day. Id. Dr. Levin
attended to plaintiffs health "at the start of plaintiff
s medical problem, " therefore he knew of the severity
of plaintiffs medical condition. Dkt. No. 99 at 2-3.
April 25, 2016, HCC policy was changed such that the movement
of offenders during institutional count was
prohibited. Dkt. No. 100 at 2. Because plaintiff was
unable to use the bathroom during count, which can take 30 to
45 minutes, he defecated on himself several times. Dkt. No.
99 at 4. Plaintiff discussed this issue with Dr. Levin, who
did not inform the warden of plaintiffs condition and
concerns. Id. In addition, on April 18, 2016, Dr.
Levin told plaintiff that he "was not allowed to give a
bathroom pass" allowing plaintiff to use the bathroom
during count. Dkt. No. 100 at 3. Dr. Levin has never believed
that it was medically necessary for plaintiff to use the
bathroom during count. Levin Aff. at ¶ 55. However, if
Dr. Levin had reason to believe that plaintiff had a medical
necessity to use the bathroom during count that could not
otherwise be addressed, he would have moved plaintiff to
medical housing. Id.
medical records disclose the following:
• On May 6, 2015, plaintiff entered into a contract
allowing him to self-administer his medications except for
his daily mesalamine enema, which plaintiff was to pick up
from the pill window and use in the infirmary's private
bathroom. Id. at ¶ 4, Ex. A.
• On May 15, 2015, Dr. Levin discussed the benefits of
plaintiff's medications for his ulcerative colitis with
plaintiff, as well as recommendations regarding dietary fiber
and the timing of plaintiff s exercising. Id. at
¶ 6, Ex. A.
• On June 12, 2015, plaintiffs lab work came back within
normal limits and Dr. Levin continued plaintiffs medications.
Id. at ¶ 7, Ex. A.
• On July 30, 2015, it was noted that plaintiff was
using the mesalamine enemas 76% of the time. Id.
• On August 5, 2015, plaintiff saw a gastroenterology
specialist outside the facility. The specialist recommended
that plaintiff continue the mesalamine enemas and vitamin D
supplement, switch the oral mesalamine he was taking, start a
course of steroids, take an iron supplement, have a C. diff
test performed (a test for bacteria that can cause blood in
stool and diarrhea), and have a flexible sigmoidoscopy (a
colonoscopy for a specific part of the colon). Id. at
¶ 8, Ex. D.
• The next day, Dr. Levin prescribed plaintiff the
steroids, and otherwise continued plaintiffs
medications. Dr. Levin also ordered a C. diff test
which came back negative. Id. at ¶ 9, Ex. A.
• On August 11, 2015, Dr. Levin requested a flexible
sigmoidoscopy, which was performed on September 4, 2015,
outside of HCC, and during which a biopsy was taken.
Id. at ¶¶ 10, 13-14, Exs. A, D.
• On August 26, 2015, Dr. Levin "fine tuned the
iron supplement" recommended by the specialist.
Id. at ¶ 11, Ex. A.
• On October 26, 2015, Dr. Levin examined plaintiff
regarding complaints of lower abdominal sharpness and some
bleeding with diarrhea. Plaintiff presented as well-hydrated,
nourished, with occasional bowel sounds with no distension
and no focal abdominal tenderness, and no signs of a
flare-up. Plaintiff had not missed any mesalamine enemas. Dr.
Levin prescribed Imodium and hemorrhoid ointment, and ordered
blood lab work. Id. at ¶ 15, Ex. A.
• On November 3, 2015, plaintiff s blood work came back
within normal limits. Id. at ¶ 17. Ex. A.
• On November 10, 2015, plaintiff reported having twenty
bowel movements a day, diarrhea like stool (some with blood),
and less abdominal pain. Dr. Levin found plaintiff to be well
hydrated, nourished, with a stable weight, normal bowel
sounds, only a slight distension, and non-tender to the
touch. Dr. Levin counseled plaintiff as to his diet and
hydration, and changed plaintiffs oral mesalamine.
Id. at ¶ 18, Ex. A.
• On November 13, 2015, Dr. Levin examined plaintiff and
noted that he was not clinically dehydrated, although Dr.
Levin noted that he had possible fluid loss. Dr. Levin also
ordered a second C. diff test. Plaintiffs lab results from
this day came back essentially normal. Id. at
¶¶ 19-20, Ex. A.
• On November 16, 2015, Dr. Levin examined plaintiff and
found that plaintiffs abdomen was soft, with no masses or
tenderness, and no resistance to the examination, indicating
his abdomen was not sore. Dr. Levin noted that plaintiff was
compliant with his medications. Plaintiff reported only
occasional loose stools. Dr. Levin counseled plaintiff