United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY JR., UNITED STATES DISTRICT JUDGE
Lee Anderson, II, a Virginia inmate proceeding pro
se and in forma pauperis, filed this 42 U.S.C.
§ 1983 action. In his Complaint, Anderson asserted,
inter alia, that the bones in his elbow were broken
into small pieces when a weight dropped on his elbow and that
prison officials subsequently failed to provide him with
adequate medical care. In his Complaint, Anderson contends
that Defendants violated the Eighth Amendment:
Claim 1 Dr. Landauer acted with deliberate indifference to
Anderson's serious medical needs when she failed to
provide proper medical care for Anderson's broken elbow.
(ECF 1-8, at 2.)
Claim 2 Dr. Luong acted with deliberate indifference to
Anderson's serious medical needs when:
(a) she failed to provide appropriate pain medication for the
pain associated with Anderson's ankle and elbow injuries
(ECF 1-1, at 7); and,
(b) she failed to arrange for prompt surgery on
Anderson's elbow (ECF No. 1, at 4).
Claim 3 Ms. Taylor acted with deliberate indifference when
she failed to promptly schedule a surgery date for
Anderson's elbow. (ECF No. 1-9, at 1.)
Claim 4 Armor Correctional Health Services violated
Anderson's right under the Eighth Amendment by its policy
of denying medical treatment, such as surgery, if the surgery
is expensive. (ECF No. 1-8, at 1).
matter is before the Court on the Motion for Summary Judgment
filed by Armor Correctional Health Services
("Armor"), Dr. Diane Landauer ("Dr.
Landauer"), Dr. Q. Luong ("Dr. Luong"), and
Stacy Taylor ("Ms. Taylor") (collectively,
"Defendants"). Anderson has not responded. The
record reflects that Anderson did not suffer from a traumatic
elbow injury. Rather, Anderson had chronic elbow and ankle
pain for which he received significant medical treatment,
including surgery. For the reasons that follow, the Motion
for Summary Judgment (ECF No. 55) will be GRANTED and the
action will be DISMISSED.
STANDARD FOR SUMMARY JUDGMENT
judgment must be rendered "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). It is the responsibility of the party
seeking summary judgment to inform the court of the basis for
the motion, and to identify the parts of the record which
demonstrate the absence of a genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). "[W]here the nonmoving party will bear the
burden of proof at trial on a dispositive issue, a summary
judgment motion may properly be made in reliance solely on
the pleadings, depositions, answers to interrogatories, and
admissions on file." Id. at 324 (internal
quotation marks omitted). When the motion is properly
supported, the nonmoving party must go beyond the pleadings
and, by citing affidavits or "'depositions, answers
to interrogatories, and admissions on file,' designate
'specific facts showing that there is a genuine issue for
trial.'" Id. (quoting former Fed.R.Civ.P.
56(c) and 56(e) (1986)).
support of their Motion for Summary Judgment, Defendants have
submitted: (1) Dr. Landauer's Declaration ("Landauer
Decl.," ECF No. 56-11, at 1-13); (2) Dr. Luong's
Declaration ("Luong Decl.," ECF No. 56-11, at
14-30); (3) Ms. Taylor's Declaration ("Taylor
Decl.," ECF No. 56-11, at 31-35) and, a host of
Anderson's medical records and other
Anderson failed to respond, Anderson fails to cite the Court
to any evidence that he wishes the Court to consider in
opposition to the Motion for Summary Judgment. See
Fed. R. Civ. P. 56(c)(3) (emphasizing that "[t]he court
need consider only the cited materials" in deciding a
motion for summary judgment). Anderson's complete failure
to present any evidence to counter Defendants' Motion for
Summary Judgment permits the Court to rely solely on
Defendants' submissions in deciding the Motion for
Summary Judgment. See Forsyth v. Ban, 19 F.3d 1527,
1537 (5th Cir. 1994) ("Rule 56 does not impose upon the
district court a duty to sift through the record in search of
evidence to support a party's opposition to summary
judgment." (quoting Skotak v. Tenneco Resins,
Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992))).
the following facts are established for the Motion for
Summary Judgment. The Court draws all permissible inferences
in favor of Anderson.
Anderson's Medical Care at Augusta Correctional Center
2014, Anderson was incarcerated in ACC. (Landauer Decl.
¶¶ 1-5.) On October 9, 2014, Dr. Landauer saw
Anderson in conjunction with, inter alia,
Anderson's complaints of elbow pain. (Id. ¶
5.) Dr. Landauer "diagnosed [Anderson with] right elbow
pain/tendonitis." (Id.) On October 16, 2014,
Dr. Landauer saw Anderson in a follow-up appointment and
administered a steroid injection with anesthetic to ease the
discomfort in Anderson's elbow. (Id. ¶ 6.)
was next seen for complaints of elbow pain on February 27,
2015. (Id. ¶ 7.) In the interval between the
October 16, 2014 appointment and February 27, 2015, Anderson
was seen "multiple times by members of the ACC medical
staff for various complaints, none of which involved
[Anderson's] elbow." (Id.) During the
February 27, 2015 appointment, Anderson complained to the
nursing staff that there was something wrong with his elbow
and noted he had been having pain in the elbow for six
months. (Id.) The nursing staff noted Anderson had a
full range of motion in the elbow and referred him to the
physician for a non-healing wound. (Id.)
March 5, 2015, Dr. Landauer evaluated Anderson's right
elbow. (Id. ¶ 8.) At this encounter, Anderson
"complained of chronic right elbow pain in addition to
other constitutional and dental complaints."
(Id.) Dr. Landauer found that Anderson's
"right elbow was mildly warm with erythema and two small
verrucous lesions. These findings were not present during
[Dr. Landauer's] examination in October 2014."
(Id.) Dr. Landauer diagnosed Anderson as
"having chronic olecranon bursitis and scheduled for him
to return to the medical clinic the following day for further
March 6, 2015, Dr. Landauer saw Anderson to treat the lesions
on his right elbow. (Id. ¶ 9.) Anderson
"had a painful scab and 2 verrucous lesions on his right
elbow. The area was cleaned using an appropriate antiseptic
for the procedures and [Dr. Landauer] used a... scalpel to
pierce the verrucous lesions." (Id.) Dr.
Landauer diagnosed Anderson as suffering from "olecranon
bursitis, verrucous lesions and painful scab on the right
elbow." (Id.) Dr. Landauer instructed Anderson
to employ "warm compresses twice daily, daily Bacitracin
and Band-Aid dressing changes," and to follow up with an
appointment in one week. (Id.)
March 13, 2015, Dr. Landauer again examined Anderson.
(Id. ¶ 10.) Anderson's "right elbow
was much improved and he was complaining of right anterior
tibial pain. [Anderson] reported the remote history of a
motorcycle accident in 2003 with multiple fractures..."
(Id.) Dr. Landauer directed Anderson "to
continue to apply A&D ointment two times a day for two
weeks ... [and to] try stretching exercises, massage and
gentle walking for the leg pain complaints and requested if a
telemedicine consult could be arranged with the orthopedic
department at Medical College of Virginia."
March 18, 2015, Anderson appeared in the medical department
with complaints of right elbow pain and infection.
(Id. ¶ 11.) The nursing "evaluation
revealed the right elbow was red, hot, tender to touch,"
and recommended review by a doctor. (Id.)
Thereafter, Anderson was evaluated by David MacDonald, D.O.
(Id.) Anderson complained of right elbow pain and
drainage, decreased range of motion, and no fever or chills.
(Id.) Dr. MacDonald found Anderson "to be in no
apparent distress with right elbow erythema without drainage.
Dr. MacDonald diagnosed cellulitis/bursitis and ordered an
aerobic culture, an x-ray of the right elbow, Bactrim DS one
pill twice a day for 10 days and a follow-up appointment the
following week." (Id.)
March 19, 2015, Dr. Landauer examined Anderson for complaints
of a rash on his hands, arms, face, and legs. (Id.
¶ 12.) Anderson had a red, tender, right elbow,
"with erythema measuring 6cm x 6cm." (Id.)
Dr. Landauer diagnosed Anderson with "recurrent right
olecranon bursitis and a sulfa rash." (Id.) Dr.
Landauer discontinued the Bactrim and prescribed an
alternative medication. (Id.)
March 20, 2015, Dr. Landauer again examined Anderson.
(Id. ¶ 13.) Dr. Landauer noted that
Anderson's rash generally was receding. (Id.)
Anderson's vital signs were normal. (Id.)
March 23, 2015, the medical record reflects [Anderson]
refused to [see] the doctor for right elbow follow-up. On
March 24, 2015, there is a notation in the medical record
that the x-ray of the right elbow previously ordered by Dr.
MacDonald had been taken." (Id. ¶ 14.)
April 14, 2015, Anderson was seen for a routine chronic care
nursing visit. (Id. ¶ 15.) Anderson said his
elbow was painful to the touch. (Id.) The nursing
evaluation did not reveal any swelling or redness of the
April 17, 2015, Dr. Landauer evaluated Anderson for
prescription renewals. (Id. ¶ 16.) Dr. Landauer
noted Anderson's "right elbow was uncomfortable to
palpation but without evidence of infection or drainage. [Dr.
Landauer's] examination of the right elbow revealed no
warmth or erythema, a healed scar, and minimal
tenderness." (Id.) Dr. Landauer's
"treatment plan was for [Anderson] to rub analgesic balm
on the right elbow two times a day for 60 days by rubbing it
in to the elbow, Baclofen 20mg to be taken by mouth twice
daily for 180 days and an increase in Elavil to 50mg every
evening for 180 days." (Id.)
"next complained of elbow pain at a nurse sick call
visit on May 28, 2015." (Id. ¶ 17.) At
this nursing encounter, Anderson "complained of pain and
[cracking] in the right elbow which in turn caused cramping
in his right hand." (Id.) The nursing
assessment confirmed the cracking and popping. (Id.)
Anderson claimed he had a bone chip in his elbow and wanted
it removed. (Id.) Anderson was referred to a
physician for evaluation. (Id.)
10, 2015, at a routine chronic care visit follow-up for
hepatitis C, Dr. MacDonald "also evaluated [Anderson]
for right elbow pain which [Anderson] stated was worse when
the elbow [was] extended." (Id. ¶ 18.)
"Dr. MacDonald's examination of the right elbow
demonstrated tenderness to palpation over the olecranon.
Review of the previous x-rays revealed a questionable bone
chip versus a calcium deposit that was only seen on the
lateral view. Dr. MacDonald's assessment included
hepatitis C virus, trigger finger and elbow pain."
(Id.) Anderson "was advised of what exercises
to avoid, was prescribed 400mg magnesium tablets, one daily
for 90 days, and blood work was ordered." (Id.)
June 30, 2015 nursing encounter, Anderson "stated his
elbow was sore and cracked on range of motion."
(Id. ¶ 19.) Anderson "was referred to the
physician for evaluation and treatment of the elbow."
6, 2015, Anderson showed up in the medical clinic "for
re-evaluation of the right elbow and to get a renewal of a
prescription for nasal spray." (Id. ¶ 20.)
Anderson "left without being seen by the doctor stating
that he did not want to see the doctor who was at ACC medical
that day." (Id.) On July 8, 2015, Anderson
returned to the medical department "for another nurse
sick call evaluation regarding his right elbow. At this
encounter [Anderson] claimed to be taking Elavil and Baclofen
for his elbow and that those medications helped alleviate
some of his elbow symptoms." (Id.) Anderson
"reported his right elbow symptoms were becoming more
constant and more severe, that he fractured his elbow in
September 2014, that... his elbow got hot to touch every
month, [and] that he stopped his magnesium supplement because
it caused itching." (Id.) Anderson acknowledged
that "upon stopping the magnesium the elbow would get
stuck in the bent position and cause the middle and ring
fingers on his hand not to work. The staff nurse scheduled
[Anderson] to see the physician." (Id.)
On July 13, 2015, Dr. MacDonald examined Anderson.
(Id. ¶ 21.) Anderson reported a history of the
right elbow locking up, having to push the arm out to
straighten the elbow and spasms in his hand. Dr.
MacDonald's examination revealed that motor testing, grip
testing, shoulder shrug/upper extremity muscle testing were
not consistent. Dr. MacDonald also noted there was no
tenderness to palpation in the ulnar gutter of the right
elbow. Sensory testing was noted to be intact with locally
subjective tenderness of the olecranon. Dr. MacDonald
diagnosed chronic right elbow pain, prescribed analgesic balm
and recommended follow-up as needed.
30, 2015, during the course of examining Anderson for
complaints related to a cough, Dr. Landauer re-examined
Anderson's "right elbow which revealed no warmth or
erythema." (Id. ¶ 22.) Dr. Landauer noted
that Anderson "was limiting his range of motion of the
elbow stating that it clicked and hurt on full range of
motion. [Dr. Landauer] diagnosed [Anderson] with right elbow
pain with a history of past infection at the site ... [and]
ordered a repeat x-ray series of the right elbow."
(Id.) Anderson was instructed to follow-up in three
weeks to consider a steroid injection or possible orthopedic
August 4, 2015, an x-ray series of Anderson's right elbow
was completed. (Id. ¶ 23.) On August 20, 2015,
Anderson reported to Dr. Landauer that "his right elbow
continued to be stiff with occasional clicking or
locking." (Id.) Dr. Landauer noted Anderson was
using an elbow sleeve. (Id.) Dr. Landauer's
examination revealed that Anderson was alert, in no acute
distress, but his "right elbow was stiff with decreased
range of motion and some crepitus and locking."
(Id.) Dr. Landauer "did not find any evidence
of erythema, warmth, purulence, or deformity of the elbow
when conducting [her] examination." (Id.)
Anderson's "clinical findings during examination
were consistent with [Dr. Landauer's] clinical assessment
and diagnosis of chronic right elbow pain, no evidence of
infection, now does have clicking, decreased range of motion,
stiffness, and radiographic evidence of a small chip versus
calcification in the soft tissue only visible on lateral
projection." (Id.) Dr. Landauer dispensed
analgesic balm to Anderson to be applied to the elbow,
"as opposed to administering an intraarticular steroid
injection, in light of [her] clinical findings at this
encounter." (Id.) Dr. Landauer also
"commenced the process to obtain an orthopedic
September 18, 2015, Dr. Landauer "examined Anderson for
complaints of toenail fungus and sinus issues."
(Id. ¶ 24.) Dr. Landauer also examined
Anderson's right elbow which was in a neoprene brace and
noted it had no erythema or warmth. (Id.) Dr.