United States District Court, W.D. Virginia, Harrisonburg Division
SYRON D. ROGERS, Plaintiff,
FREDERICK SCHILLING, et al., Defendants.
Michael F. Urbanski Chief United States District Judge
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.
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.
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.
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,
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.
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.
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.
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.
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.
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
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)).
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
§ 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 ...