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Rogers v. Schilling

United States District Court, W.D. Virginia, Harrisonburg Division

January 16, 2019

SYRON D. ROGERS, Plaintiff,
FREDERICK SCHILLING, et al., Defendants.


          Hon. Michael F. Urbanski Chief United States District Judge

         Defendants David MacDonald, D.O. and Tanya Landrum, Health Services Administrator (collectively "Defendants") filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on November 29, 2018. ECF No. 83. The court heard argument on the motion on January 3, 2019. For the reasons stated below, the court GRANTS the motion for summary judgment. All counts are DISMISSED and this case is STRICKEN from the active docket.


         Plaintiff Syron D. Rogers ("Rogers") was an inmate at the Augusta Correctional Center ("ACC") at the time of the events giving rise to this claim. ECF No. 83-1, at 98. These events occurred mainly in March and April of 2015. Id. at 115. Rogers remains incarcerated currently. Id. Defendant Dr. David MacDonald ("Dr. MacDonald") is a family physician who is Board Certified in Family Medicine. ECF No. 83-2, at 2. Defendant Tanya Landrum ("HSA Landrum") served as the Health Services Administrator at ACC during the period giving rise to Rogers's claims. ECF No. 83-3, at 10.

         These claims arise from what Rogers alleges was inadequate care and retaliation against constitutionally protected speech. Rogers was first seen at the University of Virginia Hospital ("UVA") in an off-site clinical appointment for dissecting cellulitis in the scalp area on June 12, 2014. ECF No. 83-5, at 2. He had been receiving treatment for diis condition for several years. Id. On September 9, 2014, Dr. David Shonka at UVA further evaluated Rogers and noted constant drainage/discharge from the wound area. Id. at 7. Rogers was reevaluated on February 12, 2015, when surgery and graft reconstruction were first discussed. Id. at 9. This procedure was performed on March 6. Id. A "foam bolster" was attached to the graft site during surgery to aid in short-term healing. ECF No. 83-6, at 48. Following the procedure, Rogers returned to ACC with a discharge notation that read, "We will schedule you a follow-up appointment for 3/12/15. We will remove your bolster at that time." ECF No. 83-5, at 15. A March 11, 2015 notation in ACC's medical records indicates that Dr. MacDonald was aware of this appointment. ECF No. 83-4, at 7.

         Dr. Shonka issued several post-operative orders regarding Rogers, including that he not lift any weight exceeding 10 lbs. ECF No. 83-5, at 16. After Rogers's return to ACC following his surgery, he was discharged from the medical infirmary back into general population. There is some disagreement as to when this happened; Dr. MacDonald states mat the discharge occurred on March 9 (ACC medical records support this) while Rogers claims he was sent back to general population as soon as he returned to ACC, the same day as his surgery. Compare ECF No. 83-7, at 45 and ECF No. 83-4, at 7 with ECF No. 83-1, at 27. Rogers was situated in a third-floor cell and had to ascend and descend stairs in order to attend meals and medical appointments. ECF No. 83-1, at 128-29.

         Rogers's March 12, 2015 appointment was cancelled by UVA. On March 12 at 10:11 am, Ellen Desper, a nurse at UVA, noted in Rogers's medical record that she told a physician at ACC that Rogers's post-operative appointment with Dr. Shonka would need to be rescheduled "from 3/24 to 3/17" to remove his bolster dressing. ECF No. 83-5, at 19. Nurse Desper indicated that the ACC physician was a woman; Dr. Diane Landauer, Dr. MacDonald's colleague, was the only female physician working at ACC. ECF No. 83-2, at 2. Dr. MacDonald reviewed Rogers's medical record and saw that UVA had cancelled the March 12 appointment, as the notation "Rescheduled by UVA pending" had been added to the record. ECF No. 83-7, at 33. Dr. MacDonald also knew from Rogers's medical record that he was scheduled to be examined by Dr. Landauer the next day, on March 13. Id. There is no evidence that Dr. MacDonald saw Rogers after March 11, 2015. After that date, Rogers was treated by ACC staff physician Dr. Landauer.

         On March 13, Dr. Landauer examined Rogers and noted slight turbid drainage from his thigh graft site. ECF No. 83-4, at 9. On March 19, Rogers was evaluated again by Dr. Landauer, who noticed more drainage from the scalp, but recorded that the graft site was healing well. Id. On March 20, a telephone call was made to UVA describing the increase in drainage and other symptoms. Id. at 11. A nurse at UVA asked that Rogers be brought back and recorded that he had been a no-show for his March 17 post-operative appointment. ECF No. 83-5, at 21. Rogers was brought to UVA that afternoon. Id. Dr. Landauer later noted that the skin graft "did not take" and needed surgical debridement. Id. This was performed on March 23. Id.

         Rogers was returned to ACC on March 24 with several post-operative orders, including (again) that he should not lift over 10 lbs. for approximately 4 weeks. ECF No. 83-5, at 16. Rogers was seen several times by doctors and nurses between March 24 and June 2. ECF No. 83-4, at 13. Rogers was discharged from the medical infirmary on or about April 28, 2015 and returned to general population, but was readmitted to the medical infirmary three days later. ECF No. 83-1, at 153. On April 22, 2015, Rogers filed an offender request asserting several complaints against Nurse Carter, including that she had "assaulted" him. ECF No. 83-3, at 201. HSA Landrum spoke personally with Rogers regarding some of these complaints and responded in writing to the offender request on April 24. ECF No. 83-3, at 200-201. On June 2, Rogers was evaluated by Dr. Shonka at UVA, who noted that he was "doing well with no evidence of ongoing infection and epitheliazation of the entire area. Completely healed at this point." ECF No. 83-5, at 46.

         Rogers filed his original complaint against Defendants Dr. David MacDonald and Health Services Administrator Tanya Landrum on February 27, 2017; the amended complaint was filed on October 18, 2017. ECF No. 1; ECF No. 45. Rogers brought seven claims against Defendants, two of which have been voluntarily dismissed. Of the five remaining claims, three have been brought pursuant to 42 U.S.C. § 1983. The remaining two, Counts VI and VII, allege Rogers is entitled to punitive damages and attorneys' fees; the success of these counts thus depends on the substantive allegations of Counts I, IV, and V. ECF No. 45.

         Count I is an Eighth Amendment claim of deliberate indifference to a serious medical need. It alleges three bases of deliberate indifference: (1) that Dr. MacDonald "violated Plaintiffs right to be free from deliberate indifference to his known serious medical need for the post-operative appointment scheduled for March 12, 2015 where the bolster sewn into his head was to be removed;" (2) that "Dr. MacDonald further violated this right when he refused to follow the surgeon's instructions that restricted Plaintiffs load bearing activity by allowing Plaintiff to be housed in general population on the third floor-knowing that Mr. Rogers would be forced to carry his own body weight (which is way more than 10 pounds) up three flights of stairs to rest in his room, or go to the dining hall for each meal;" and (3) mat "Dr. MacDonald further violated Plaintiffs right when he intentionally refused to house Plaintiff in the medical unit/infirmary until his wounds fully healed, instead kicking Plaintiff out of the infirmary on two occasions." ECF No. 45, at 32-33. Count IV alleges that Rogers was discharged from the medical infirmary on April 28, 2015 and returned to general population in retaliation against his exercise of his First Amendment rights to file administrative grievances. Id. at 37. Finally, Count V also alleges a First Amendment claim of retaliation under a theory of supervisory liability-Rogers claims that his wounds were scrubbed until they bled by Nurse Carter and that Dr. MacDonald and HSA Landrum failed to intervene. Id. at 38.


         Pursuant to Federal Rule of Civil Procedure 56(a), the court must "grant summary judgment 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); see Celotex Corp. v. Catrett. 477 U.S. 317, 322 (1986); Glynn v. EDO Corp.. 710 F.3d 209, 213 (4th Or. 2013). When making this determination, the court should consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with ... [any] affidavits" filed by the parties. Celotex. 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex. 477 U.S. at 323. If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

         In determining whether a genuine issue of material fact exists, the court views the facts and draws all reasonable inferences in the light most favorable to the non-moving party. Glynn. 710 F.3d at 213 (citing Bonds v. Leavitt. 629 F.3d 369, 380 (4th Cir. 2011)). Indeed, "[i]t is an 'axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.'" McAirlaids. Inc. v. Kimberly-Clark Corp.. No. 13-2044, 2014 WL 2871492, at *1 (4th Cir. June 25, 2014) (internal alteration omitted) (citing Tolan v. Cotton. 134 S.Ct. 1861, 1863' (2014) (per curiam)). Moreover, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ...." Anderson. 477 U.S. at 255. However, the non-moving party "must set forth specific facts that go beyond the 'mere existence of a scintilla of evidence."' Glynn. 710 F.3d at 213 (quoting Anderson. 477 U.S. at 252). Instead, the non-moving party must show that "there is sufficient evidence favoring the nonmoving patty for a jury to return a verdict for that party." Res. Bankshares Corp. v. St. Paul Mercury Ins. Co.. 407 F.3d 631, 635 (4th Cir. 2005) (quoting Anderson, 477 U.S. at 249). "In other words, to grant summary judgment the [c]ourt must determine that no reasonable jury could find for the nonmoving party on the evidence before it." Moss v. Parks Corp., 985 F.2d 736, 738 (4th Cir. 1993) (citing Perini Corp. v. Perini Const. Inc.. 915 F.2d 121, 124 (4th Cir. 1990)).


         Count I alleges a violation of the Eighth Amendment, vindicated through a § 1983 claim. Under § 1983, Rogers must show (as a threshold matter) that each Defendant was personally involved in the alleged violation. Ashcroft v. Iqbal. 556 U.S. 662, 676 (2009); Vinnedge v. Gibbs. 550 F.2d 926, 928 (4th Cir. 1977) ("Although ยง 1983 must be 'read against the background of tort liability that makes a man responsible for the natural consequences of his actions,' [citation omitted], p]iability will only lie where it is affirmatively shown that the official ...

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