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Saub v. Correct Care Solutions

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

February 21, 2019

ERIC B. SAUB, Plaintiff,


          John A. Gibney, Jr. United States District Judge

         Eric B. Saub, a Virginia inmate proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. The matter is proceeding on Mr. Saub's Second Particularized Complaint ("Complaint," ECF No. 15). Mr. Saub alleges that he suffers from a number of ailments and that Defendant Correct Care Solutions ("CCS") denied him adequate medical care during his detention in the Hampton Roads Regional Jail (the "Jail"). Specifically, Mr. Saub contends that CCS denied him adequate medical care for his: low blood sugar/hypoglycemia; migraines, nausea, and dizziness; constipation; mental health issues; dental problems; and shoulder pain. This matter is before the Court on the Motion for Summary Judgment filed by CCS. (ECF No. 31.) Mr. Saub has responded (ECF Nos. 37, 39, 49) and seeks relief under Federal Rule of Civil Procedure 56(d)[1]to stay or deny summary judgment until he pursues discovery. (ECF No. 38.) For the reasons set forth below, the Court finds that CCS is entitled to summary judgment and that Mr. Saub is not entitled to relief under Federal Rule of Procedure 56(d).[2]


         By Memorandum Order entered on December 12, 2017, the Court informed Mr. Saub that the action would proceed on his Second Particularized Complaint. (ECF No. 18.) On February 11, 2018, CCS, the only defendant identified by name in the Second Particularized Complaint, filed its Answer. (ECF No. 26.) By Memorandum Order entered on February 23, 2018, the Court informed Mr. Saub that he could now pursue discovery to identify any of the unknown employees of CCS that he wished to add as defendants to the action. (ECF No. 28.) Additionally, the Court denied Mr. Saub's Motion to Amend without prejudice to refile in conjunction with an amended complaint that properly identifies the John Doe employees of CCS. (Id.)

         On May 21, 2018, CCS filed its Motion for Summary Judgment. (ECF No. 31.) CCS attached to the Motion for Summary Judgment almost two-hundred pages of Mr. Saub's medical records and his correspondence with officials at the Jail. (ECF No. 32-2.)

         On May 21, 2018, Mr. Saub moved for an extension of time to respond to the Motion for Summary Judgment. (ECF No. 34.)

         On May 23, 2018, Mr. Saub filed a motion requesting, inter alia, that CCS produce his medical records and additional information about its employees at the Jail. ("May 23 Motion for Discovery," ECF No. 35.)

         By Memorandum Order entered on May 31, 2018, the Court granted the Motion for Extension of Time. (ECF No. 36.) On July 9, 2018, Mr. Saub filed his Response to the Motion for Summary Judgment. (ECF No. 37.) In conjunction with that Response, Mr. Saub submitted his Affidavit/Declaration Supporting Need for Discovery ("Discovery Declaration," ECF 38.)

         On July 12, 2018, CCS filed its Reply to Mr. Saub's Response to the Motion for Summary Judgment. (ECFNo. 41.)

         By Memorandum Order entered on August 15, 2018, the Court addressed Mr. Saub's May 23 Motion for Discovery. (ECF No. 44.) The Court informed Mr. Saub that discovery was initially to be conducted on an informal basis between the parties and further informed Mr. Saub of the appropriate procedures he needed to utilize before filing a motion seeking to compel discovery. (Id.) The Court denied the May 23 Motion for Discovery without prejudice. (Id.)

         Months later, on October 1, 2018, Mr. Saub filed a Motion for Leave to Respond, wherein he sought to file a further response to the Motion for Summary Judgment. (ECF No. 46.) By Memorandum Order entered on October 9, 2018, the Court granted Mr. Saub's Motion for Leave to Respond to the extent that Mr. Saub was directed to file any further response within fifteen (15) days of the date of entry thereof. (ECF No. 47.)

         On November 2, 2018, Mr. Saub filed his final response to the Motion for Summary Judgment. (ECF No. 49.) In that response, Mr. Saub asserts that his jailors at the Western Tidewater Regional Jail transmitted Mr. Saub's legal materials to his investigator and his subsequent jailors at the Northern Neck Regional Jail and Sussex II State Prison will not accept mail from his investigator. (Id. at 1.)


         Summary 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). The party seeking summary judgment bears the responsibility of informing the Court of the basis for the motion and identifying the parts of the record which demonstrate the absence of a genuine issue of material fact. See Celolex 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), (e) (1986)). In reviewing a summary judgment motion, the Court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere "scintilla of evidence" will not preclude summary judgment. Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). Nor can a nonmoving party "create a genuine dispute of fact through mere speculation." Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.3d 213, 214 (4th Cir. 1985)). Accordingly, "[t]he nonmovant can show that a dispute is genuine only if it provides sufficient evidence so that a 'reasonable jury could return a verdict for the nonmoving party.'" Wiggins v. DaVita Tidewater LLC, 451 F.Supp.2d 789, 796 (E.D. Va. 2006) (quoting Anderson, 477 U.S. at 248).

         In support of its Motion for Summary Judgment, CCS submitted the affidavit of April Green, the Health Service Administrator at the Jail ("Green Aff.," ECF No. 32-l)[3] and Mr. Saub's medical records ("MR," ECF No. 32-2). In opposition to the Motion for Summary Judgment, Mr. Saub submitted his Affidavit of Fact ("Saub Aff.," ECF No. 37), some of his medical records and grievances from the Jail (ECF No. 37-1), and his Discovery Declaration (ECF No. 38). Of course, the facts offered by affidavit or otherwise must also be in the form of admissible evidence. See Fed. R. Civ. P. 56(c)(4). In this regard, the statement in the affidavit or sworn declaration "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Id. Therefore, "summary judgment affidavits cannot be conclusory or based upon hearsay." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (internal citations omitted). For example, Mr. Saub swears that he was seen by a doctor on October 15, 2015. (Saub Aff. ¶ 48.) According to Mr. Saub, that doctor determined that Mr. Saub's headaches, dizziness, and nausea were the result of Mr. Saub's low blood sugar. (See Id. ¶¶ 46-48.) This statement amounts to inadmissible hearsay for the purposes of demonstrating that Mr. Saub has low blood sugar and that his ailments are traceable to that condition.

         Mr. Saub has offered a host of other assertions that are of no importance in assessing the propriety of summary judgment. For example, Mr. Saub swears,

Despite clearly communicating serious medical needs, at no time did any medical staff (CCS Staff) ever see me to make an informed medical decision.
Regardless of the seriousness of a medical request, in my observations, I never witnessed or heard of any CCS staff making an informed medical decision by seeing those requesting medical care and commonly would hear complaints on this failure by CCS.

(Id. ¶¶ 42, 43 (internal paragraph number omitted).)[4] Assertions of this ilk are insufficient to withstand summary judgment. See United States v. Roane, 378 F.3d 382, 400-01 (4th Cir. 2004) (alteration in original) (citations omitted) (internal quotation marks omitted) (observing that "[a]iry generalities, conclusory assertions and hearsay statements [do] not suffice to stave off summary judgment").

         In light of the foregoing submissions and principles, the following facts are established for purposes of the Motion for Summary Judgment. Where possible, the Court has attempted to organize the facts by Mr. Saub's different ailments and the attendant medical care for each ailment.


         Mr. Saub was incarcerated in the Jail as a pretrial detainee from May 4, 2015, until July 5, 2016. (Saub Aff. ¶¶ 1, 3.) Except for intermittent court appearances, Mr. Saub remained at the Jail until he was transferred to the Western Tidewater Regional Jail ("WTRJ") on July 5, 2016. (Id. 13.) On December 1, 2015, CCS assumed responsibility for medical care for the inmates at the Jail. (Green Aff. ¶ 1.)

         A. Migraines, Nausea, Dizziness, Alleged Low Blood Sugar, and Constipation

Mr. Saub's medical records do not reflect any blood test showing that Mr. Saub had hypoglycemia. His blood was tested on 10/21/15; his blood glucose level was 71 with a normal range of 65 to 99. Id. p. 48. This is the only record of the results of a blood test in Mr. Saub's medical records and reflects a normal blood sugar level. Mr. Saub was nonetheless given an order on October 22, 2015 to receive a snack; the order indicates that he was to receive a snack for 90 days; this occurred, including after CCS assumed responsibility for care at HRRJ. Id. p. 10.

(Id. ¶ 6.) Nevertheless, Ms. Green notes:

There is a note for 10/22/15 which states "reviewed blood sugar readings and has had several episodes of hypoglycemia in the am." Id. p. 86. The referenced blood sugar readings are not found in [Mr. Saub's] records, however. Additionally, that same note for 10/22/15 indicates "reviewed labs with pt, wnl." Id. This suggests that even if blood sugar readings were taken, they were within normal limits and/or that [Mr. Saub's] laboratory assessment of his blood sugar was within normal limits. It is unclear, therefore, whether there is any record of an abnormal blood sugar level for [Mr. Saub] and/or any laboratory demonstration of hypoglycemia.

(Id. ¶ 7.) Further, another note for that date, by a Nurse Practitioner Boldaker indicates that Mr. Saub's snack should continue for 90 days because of his hypoglycemia. (MR 10.)

         On November 22, 2015, Mr. Saub submitted a sick call request wherein he stated that he was "still awaiting doctor follow up from doctor on head, nausea, dizziness & passing blood.... [I] have not [been given] meds since 11/15/15." (ECF No. 37-1, at 1.) On November 29, 2015, Mr. Saub was seen by a nurse practitioner and "reported that he had been diagnosed with migraine headaches while living in Orlando Florida----Mr. Saub reported that at that time he would experience a headache 1 or 2 times per month, but that the frequency had increased since his incarceration." (Green Aff. ¶ 3.) Mr. Saub stated that some nausea and vomiting accompanied his headaches. (Id.) "The NP performed a neurologic evaluation and found Mr. Saub to be within normal limits. The NP placed Mr. Saub on Ibuprofen, as needed, for headaches and Phenergan, as needed, for nausea and vomiting." (Id.)

         In the next few days, Mr. Saub apparently left the Jail for a court appearance. (See Id. U 4.) Mr. Saub's records reflect that he was again admitted to the Jail on December 3, 2015. (Id.)

         On December 9, 2015, Mr. Saub submitted a sick call request form wherein he requested: to continue the Motrin without stopping as "it help[s] a lot"; to "please resume" his prescription for Phenergan as "it's the only thing that helps" his nausea; and to provide a pill to help him use the bathroom as it has been almost a week ...

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