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Gregory v. Allen

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

September 26, 2017

William James Gregory, Jr., Plaintiff,
Charles Allen, et ah, Defendants.



         William 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.[1]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.[2] 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 denied.


         The 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.

         Effective April 25, 2016, HCC policy was changed such that the movement of offenders during institutional count was prohibited.[3] 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.

         Plaintiffs 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).[4] Id. at ¶ 8, Ex. D.
• The next day, Dr. Levin prescribed plaintiff the steroids, and otherwise continued plaintiffs medications.[5] 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 ...

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