United States District Court, W.D. Virginia, Roanoke Division
K. MOON UNITED STATES DISTRICT JUDGE.
Lee Barnes, a Virginia inmate proceeding pro se,
filed a civil rights action pursuant to 42 U.S.C. §
1983, alleging that the defendants, Drs. Moreno and Martinez,
denied him adequate medical treatment for his neck and back
pain. I previously denied the parties' cross-motions for
summary judgment and set this matter for trial. The trial is
scheduled for August 15 and 16, 2019. The parties have now
filed a second round of cross-motions for summary judgment
supported by affidavits. Having reviewed the record, I
conclude that the parties' motions must be denied again.
October 26, 2015, Barnes saw defendant Dr. Moreno concerning
his neck and back.At the time of this appointment, Barnes had
an active prescription for 25 mg of Indocin, three times a
Barnes states that during the visit, he informed Dr. Moreno
that he experienced daily pain that ranged from a four to a
seven, on a scale of one to ten; he often woke up in the
morning with “strong” back pain; there were times
when he would bend his body to the side and it felt like the
muscles around his spine were ripping apart and were
“inflamed and sore”; the Indocin that Dr. Moreno
had prescribed in February 2015 did not reduce Barnes'
pain; and Barnes had stopped taking the medication
“because it was ineffective.” To the contrary,
Dr. Moreno avers that although Barnes complained of muscle
tightness in his neck and back, he denied muscle pain or
spasms. Dr. Moreno performed a “physical
exam, which involved a visual assessment of his chest, back,
shoulders and arms, ” and found no abnormalities or
objective signs of injury. Dr. Moreno states that Barnes was
“generally comfortable” and that his vital signs
did not reflect physical distress. In opposition, Barnes
states that he was not comfortable as he was
contemporaneously experiencing back and neck pain, of which
he advised Dr. Moreno. Dr. Moreno avers that he diagnosed
Barnes with “tightness of the back and neck, ”
that Barnes was already prescribed Indocin, and that Barnes
“did not describe or display any subjective or
objective symptoms that necessitated a change in the
dosage.” Dr. Moreno does not dispute that Barnes
advised him that the previously-prescribed Indocin was
ineffective in treating his pain. Dr. Moreno did not see or
treat Barnes after November 3, 2015.
November 18, 2016, Barnes saw defendant Dr. Martinez
concerning his neck and back pain. Barnes states that during
the visit, he told Dr. Martinez that his pain usually ranged
between a four and a seven, on a scale of one to ten, but
sometimes it was a nine. Dr. Martinez avers that he examined
Barnes and noted no swelling or decrease in range of motion.
Barnes avers that Dr. Martinez never performed an examination
of his neck or back. Dr. Martinez ordered x-rays of
Barnes' spine and prescribed 50 mg of Indocin for 180
days. Barnes states that he informed Dr.
Martinez that the Indocin “did not work, ” and
that he still experienced pain in his muscles and spine when
taking the medication. To the contrary, in response to
Barnes' request for admissions, Dr. Martinez states that
Barnes did not advise him that Indocin was ineffective in
treating his pain. See Req. Admis., Docket No. 69-1,
p. 14. Dr. Martinez states that although Barnes alleges that
he complained of “throbbing headaches and . . .
tightness in the back of his head and tenderness in his neck
and shoulder muscles [that] sometimes [got] so bad that he
would wake up in the middle of the night, ” Dr.
Martinez did not record these statements in Barnes'
medical records. Dr. Martinez states that it is his routine
practice to record such statements, especially when that pain
awakens a patient at night and/or when the pain originates as
a headache. Because he did not note those statements in the
medical records, Dr. Martinez denies that they were made to
him. In opposition, Barnes affirms that he did make the
statements to Dr. Martinez and that he also told Dr. Martinez
that his pain got so bad that he would have to lie down in
his bed to relax the pains. Barnes took the Indocin for
approximately six weeks after his appointment with Dr.
Martinez and then submitted a sick call form on December 29,
2016, indicating that the medication was not working.
one week later, Barnes saw Dr. Martinez concerning his
complaint that the pain medication did not reduce his neck
and back pain. Dr. Martinez reviewed Barnes' x-ray
results, advised Barnes that the x-ray showed no damage to
his neck or back, and stated that he would not change
Barnes' medication. Barnes complained that the medication
did not work and Dr. Martinez replied that the “only
other thing” he could do for Barnes was to follow his
“prior treatment plan for Naproxen or meloxicam.”
Barnes told Dr. Martinez that those plans were discontinued
because they did not reduce his pain and told Dr. Martinez
that he did not want them. Dr. Martinez asked Barnes to keep
trying the Indocin. Dr. Martinez states that Barnes did not
need any pain medication other than Indocin.
is entitled to summary judgment if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact. Fed.R.Civ.P. 56(a). Material facts are those
necessary to establish the elements of a party's cause of
action. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A genuine issue of material fact exists if,
in viewing the record and all reasonable inferences drawn
therefrom in a light most favorable to the non-moving party,
a reasonable fact-finder could return a verdict for the
non-movant. Id. The moving party has the burden of
showing - “that is, pointing out to the district court
- that there is an absence of evidence to support the
nonmoving party's case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). If the movant
satisfies this burden, then the non-movant must set forth
specific, admissible facts that demonstrate the existence of
a genuine issue of fact for trial. Id. at 322-23. A
party is entitled to summary judgment if the record as a
whole could not lead a rational trier of fact to find in
favor of the non-movant. Williams v. Griffin, 952
F.2d 820, 823 (4th Cir. 1991); see Ennis v. Nat'l
Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55,
62 (4th Cir. 1995) (“Mere unsupported speculation . . .
is not enough to defeat a summary judgment motion.”).
adjudicating a motion for summary judgment, a court may not
resolve disputed facts, weigh the evidence, or make
determinations of credibility. Russell v. Microdyne
Corp., 65 F.3d 1229, 1239 (4th Cir. 1995); Sosebee
v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). Instead, a
court accepts as true the evidence of the non-moving party
and resolves all internal conflicts and inferences in the
non-moving party's favor. Charbonnages de France v.
Smith, 597 F.2d 406, 414 (4th Cir. 1979).
Eighth Amendment- Medical Treatment
argues that he has a serious medical need and that the
defendants ignored his complaints that the pain medication
was ineffective in reducing his pain, persisted in a course
of treatment that they knew was ineffective, and caused him
to suffer significant pain. Drs. Moreno and Martinez argue
that Barnes did not have a serious medical need and that,
even if he did, his claims amount to nothing more than a
disagreement between medical staff and an inmate over
treatment. I conclude that genuine disputes of material facts
preclude summary judgment and, therefore, will deny the
order to state an Eighth Amendment claim for denial of
medical care, a plaintiff must demonstrate the
defendants' acts (or failure to act) amounted to
deliberate indifference to a serious medical need. See
Estelle v. Gamble, 429 U.S. 97, 106 (1976). Objectively,
the medical condition at issue must be serious. See
Hudson v. McMillian, 503 U.S. 1, 9 (1992) (stating there
is no expectation that prisoners will be provided with
unqualified access to health care). Subjectively, deliberate
indifference to a serious medical need requires proof that
the prison staff were aware of the need for medical attention
but failed to either provide it or ensure the needed care was
available. See Farmer v. Brennan, 511 U.S. 825, 837
(1994). Disagreements between a health care provider and the
inmate over a diagnosis and the proper course of treatment
are not sufficient to support a deliberate indifference
claim, and questions of medical judgment are not subject to
judicial review. Wright v. Collins, 766 F.2d 841,
849 (4th Cir. 1985); Russell v. Sheffer, 528 F.2d
318, 319 (4th Cir. 1975).
dismissal of an Eighth Amendment deliberate indifference
claim may be improper where the plaintiff received some, or
perhaps even extensive treatment, but the treatment that was
provided ignored and failed to treat his symptoms. See,
e.g., De'Lonta v. Johnson, 708 F.3d 520, 525 (4th
Cir. 2013) (rejecting an argument that provision of
“some treatment” necessarily rendered a
deliberate indifference claim legally insufficient because
such treatment may not be “constitutionally
adequate treatment”). Therefore, a plaintiff may
establish a plausible Eighth Amendment claim if he can
demonstrate that “the care he is receiving is not
effective.” Goodman v. Johnson, 524 Fed.Appx.
887, 889 (4th Cir. 2013); Arnett v. Webster, 658
F.3d 742, 753 (7th Cir. 2011) (stating an inmate with
rheumatoid arthritis had raised a plausible ...