United States District Court, E.D. Virginia, Richmond Division
ERIC B. SAUB, Plaintiff,
CORRECT CARE SOLUTIONS, Defendant.
A. Gibney, Jr. United States District Judge
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)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).
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
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.)
21, 2018, Mr. Saub moved for an extension of time to respond
to the Motion for Summary Judgment. (ECF No. 34.)
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.)
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.)
12, 2018, CCS filed its Reply to Mr. Saub's Response to
the Motion for Summary Judgment. (ECFNo. 41.)
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.
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.)
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.)
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). 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).
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) 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. Â¶Â¶ 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.
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).) 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").
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.
Saub was incarcerated in the Jail as a pretrial detainee from
May 4, 2015, until July 5, 2016. (Saub Aff. Â¶Â¶ 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.)
Migraines, Nausea, Dizziness, Alleged Low Blood Sugar, and
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. Â¶ 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. Â¶ 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.)
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. Â¶ 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."
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,
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 ...