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Hemingway v. Miss. Chattman

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

November 15, 2018

Jesse Hemingway, Plaintiff,
v.
Miss. Chattman, et al., Defendants.

          MEMORANDUM OPINION

          T.S. Ellis, III United States District Judge

         Jesse 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.

         I. Background

         In the 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.[1] The following facts are undisputed.[2]

         Plaintiff 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.

         Plaintiffs medical records disclose the following:[3]

• In January 2016 plaintiff received his NPH insulin[4] every day except for one morning.[5]
• 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 10.5.[6]
• In March 2016 plaintiff received his NPH insulin every day.
• On April 5, 2016 plaintiff complained that he feet were "burning."
• 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 supply."
• In July 2016, plaintiff only received his NPH insulin two mornings, however, he received his NPH insulin every evening.
• 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 plaintiffs request.
• 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 ...

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