United States District Court, E.D. Virginia, Alexandria Division
Ellis, III United States District Judge
Hemingway, a federal inmate proceeding pro se, has filed a
civil rights action, pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), and the Federal Torts Claim Act
("FTCA"), 28 U.S.C. §§ 2671 et seg.
Defendant Dr. DiCocco has filed a Motion for Summary
Judgment, as well as a supporting memorandum and exhibits.
Dkt. Nos. 73-74. 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). Dkt. No. 75. Plaintiff has not filed a
response. This motion is now ripe for adjudication. For the
reasons that follow, the Motion for Summary Judgment filed by
Dr. DiCocco will be granted.
operative complaint, plaintiff names the United States of
America, HSA E. Chattman, AHSA M. Francos, AHSA Scott-Boston,
Dr. M. DiCocco, Dr. Piscitelli, Andarge Yirga, LPN Amber
McCaferthy, DNP/FNP Winbush, FNP/MSN T. McClellan, and Dr. K.
Prakash as defendants, and raises claims relating to the type
of insulin he was provided as well as the treatment of an
injury to his foot which ultimately resulted in the
amputation of one of his toes, all while he was incarcerated
at FCC Petersburg. The following facts are
has been diabetic almost his entire life. Def s. MSJ ¶
4. During the time in question, plaintiff was incarcerated at
FCC Petersburg. Id. ¶ 1. At some point between
February and April 2016 plaintiff injured his right great
toe. Dkt. No. 43.
medical records disclose the following:
• In January 2016 plaintiff received his NPH
insulin every day except for one
• In February 2016, plaintiff received his morning and
evening NPH insulin every day except for three days when he
only received his evening NPH insulin.
• On March 1, 2016 plaintiffs HgbA1C was
• In March 2016 plaintiff received his NPH insulin every
• On April 5, 2016 plaintiff complained that he feet
• On April 26, 2017, plaintiffs HgbA1C was 9.1.
• In April 2016, plaintiff received his NPH insulin all
but nine days in the morning. In May 2016, plaintiff only
received his NPH insulin eight mornings, however, he received
his NPH insulin every evening. Finally, in June 2016,
plaintiff only received his NPH insulin one morning, however,
he received his NPH insulin every evening except one.
• When Dr. DiCocco examined plaintiff on July 1, 2016,
he found no diabetic ulcers on plaintiffs feet but noted that
plaintiffs "right great toe has lost most of its sensory
• In July 2016, plaintiff only received his NPH insulin
two mornings, however, he received his NPH insulin every
• On August 2, 2016, plaintiff complained that he has
been experiencing right great toe numbness for the past
month. MLP Yirga noted that plaintiff presented with a callus
formation on the tip of his toe without nail discoloration,
which he stated was probably from "direct compression of
nerve from footwear (institutional boots) and callus."
Finally, it was noted that diabetic shoes had already been
ordered for plaintiff.
• On August 23, 2016, plaintiff presented with a callus
formation on his great right toe without any secondary
infection or drainage. MLP Yirga determined it was a callus.
An x-ray of plaintiff s right foot taken the same day showed
no radiographic evidence for osteomyelitis. Plaintiffs blood
tests showed he had normal red and white blood cell counts,
however, MLP Yirga prescribed plaintiff antibiotics.
• In August 2016, plaintiff received his NPH insulin 14
mornings and every evening.
• On September 6, 2016, plaintiff complained that he had
an infection on his right great toe, but that he kept being
told by HSA Chatman, AHSA Brown, and MLP Yirga that it was
just a callus. Plaintiff asked to be seen by a podiatrist.
• On September 12, 2016, MLP Yirga and Dr. DiCocco
examined plaintiffs right great toe. MLP Yirga performed a
debridement of plaintiff s great right toe, took a culture of
the wound, and prescribed plaintiff antibiotics.
• On September 22, 2016, MLP Yirga informed plaintiff
that the culture test results were "no anaerobic growth
in 72 hours and aerobic mixed skin flora with multiple
negative rods, moderate growth." He told plaintiff to
finish his current antibiotics as directed and to control his
blood sugar, and then he ordered that plaintiff receive wound
care for ten days.
• On September 30, 2016, Dr. Piscitelli prescribed
plaintiff oral antibiotics and advised plaintiff that he
needed to better control his blood sugar level. He also
referred plaintiff to Dr. Prakash, an outside orthopedist,
and ordered an x-ray and blood tests.
• In September 2016, plaintiff received his NPH insulin
all but 10 mornings, and he received it every evening.
• An October 7, 2016 x-ray of plaintiff s right foot was
found to be "stable" when compared to the August
23, 2016 x-ray of plaintiff s right foot.
• On October 7, 2016, plaintiff was seen by Dr. Prakash
who recommended removing plaintiffs toe nail.
• On October 26, 2016, MLP Yirga noted minimal drainage
from plaintiffs right great toe nail bed and offered to
remove the toe nail, but plaintiff stated that he only wanted
the specialist to remove the toe nail. Dr. DiCocco approved
• On October 28, 2016, offsite provider Nurse Elker, an
expert in wound care, reviewed plaintiffs medical records and
noted that "ongoing repetitive pressure on the toe,
likely related to him walking in his boots, coupled with
elevated HgbA1C are of primary concern" with regards to
plaintiffs toe ulcer.
• On October 31, 2016, Dr. DiCocco noted that plaintiff
needed post-operative shoes.
• In October 2016, plaintiff did not receive his NPH
insulin 20 times in the morning and only one ...