United States District Court, W.D. Virginia, Roanoke Division
RONALD A. THARRINGTON, JR., Plaintiff,
COMMONWEALTH OF VA., et al., Defendants.
K. Moon United States District Judge.
A. Tharrington, Jr., a Virginia inmate proceeding pro
se, filed this civil rights action pursuant to 42 U.S.C.
§ 1983,  alleging that the defendant Dr. Dale
Moreno acted with deliberate indifference to
Tharrington's serious medical needs related to an injured
foot and subsequent injuries, in violation of his rights
under the Eighth Amendment. The matter is before me upon the
parties' cross-motions for summary judgment supported by
affidavits. For the reasons set forth below, Dr.
Moreno's motion for summary judgment will be granted and
Tharrington's motion for summary judgment must be denied.
Tharrington's complaint as amended, he asserted that Dr.
Moreno violated his constitutional rights by denying him
appropriate medical care and being deliberately indifferent
to his medical needs, causing him to incur further injury and
pain. After reviewing Dr. Moreno's motion to dismiss
(docket no. 17), I determined that Tharrington had plausibly
alleged that Dr. Moreno was deliberately indifferent to
Tharrington's serious medical needs and denied the motion
to dismiss on September 20, 2018 (docket no. 80). Following
additional briefing by both sides, the cross-motions for
summary judgment are ripe for decision.
further set forth in my previous memorandum opinion, while an
inmate at Buckingham Correctional Center, on December 19,
2014, Tharrington submitted an emergency grievance for
additional medication stating he had significant foot pain
and instability, stemming from foot surgery in July 2014. A
nurse reviewed the emergency grievance and determined that it
was non-emergent and scheduled Tharrington to be seen by Dr.
Moreno. On December 23, 2014, Tharrington fell down half a
flight of stairs and was then examined by Dr. Moreno on the
same day. Dr. Moreno determined that Tharrington suffered a
blunt trauma to his right foot resulting from the fall. At
that point, Tharrington was already taking pain medication
prescribed by another unnamed prison physician,
including Tramadol, Neurontin, and Naproxen. Dr. Moreno,
finding that Tharrington appeared comfortable and in no
apparent distress when seated in a wheel chair, prepared a
treatment plan that ordered Tharrington to continue on the
previously prescribed medication with the addition of 400 mgs
of Motrin, receive “bottom bunk, bottom tier, and
bottom floor for one month, ” have x-rays taken of the
right foot and ankle, and be issued crutches such that there
was no weight bearing on the right foot and ankle until the
x-ray results were back. See Moreno Decl. at 2.
Tharrington protested, arguing that the pain medication,
including the tapered Tramadol, was insufficient to manage
the next few days, Tharrington filed multiple emergency
grievances requesting more pain medication because he had
pain in his neck, arm, and upper back and complaining that
his blood pressure was elevated due to the
pain. During that time, Tharrington was
monitored by the nursing staff, provided with the prescribed
pain medication, and kept weight off his ankle and foot. Dr.
Moreno was notified of Tharrington's complaints on
December 25, 2014, and ordered that Tharrington continue to
take his medication, including the Tramadol at the tapered
dose. Tharrington was also to continue being monitored in the
pleadings, Dr. Moreno stated that Tramadol is a synthetic
opioid with the risk of addiction, heightened by chronic use,
and is often abused for its euphoric effects. See
Moreno Decl. at 2-3. Dr. Moreno avowed that it is important
for physicians to monitor Tramadol use and “weigh the
efficacy and availability of alternative pain relievers when
treating patients for pain.” Id. In Dr.
Moreno's opinion, Tharrington was being adequately
treated for his injury.
December 26, 2014, Tharrington fell in the shower.
Tharrington believes he passed out due to the severe pain he
was suffering. Tharrington was examined by the nursing staff
and Dr. Moreno was contacted. Dr. Moreno did not prescribe
any additional pain medication, but instead ordered that
Tharrington continue to be monitored by the nursing staff. On
December 27, 2014, Tharrington submitted additional emergency
grievances regarding pain in his foot, neck, head, back, and
jaw, as well as nausea and an inability to eat. The nurses
determined that the emergency grievances were not an
emergency and that Tharrington was already being treated for
the pain. The nurses scheduled Tharrington to see the doctor.
Moreno next saw Tharrington on December 29, 2014. Dr. Moreno
reviewed the nurses notes and conducted a physical
examination. Dr. Moreno concluded that Tharrington had right
ankle pain, upper back/lower neck pain, and noted that
Tharrington alleged paresthesia in the 4th and 5th fingers of
his left hand. Dr. Moreno prepared a new treatment plan,
including ordering x-rays with flexion and extension and T
spine series. Dr. Moreno also adjusted the pain medication to
include 650 mgs of Tylenol three times a day for 90 days, as
needed for pain. Tharrington asserts that his Tylenol
prescription was decreased from 1000 mgs to 650 mgs, although
the medical records do not indicate this decrease.
Tharrington requested that Dr. Moreno increase his Tramadol
dosage, but Dr. Moreno refused. Dr. Moreno also ordered a
complete metabolic panel and that Tharrington's blood
pressure be checked three times per week for two weeks. Later
that day, Tharrington submitted an additional emergency
grievance regarding severe pain and ineffective medication,
and the nurse declared it non-emergent. The nurses continued
to monitor Tharrington in the infirmary, check his blood
pressure, and dispense his medication, pursuant to Dr.
Moreno's treatment plan.
December 30, 2014 and January 3, 2015, Tharrington submitted
additional emergency grievances for severe pain and
ineffective medication that were all determined to be
non-emergent. In his December 30, 2014 emergency grievance,
Tharrington asserted that Dr. Moreno was indifferent to
Tharrington's pain because Tharrington had filed a formal
complaint against Dr. Moreno. The nurses continued to monitor
Tharrington, check his blood pressure, and dispense
January 2, 2015, Dr. Moreno was contacted following
Tharrington's complaint of chest pain and pressure. Dr.
Moreno adjusted his treatment plan such that
Tharrington's blood pressure monitoring was increased to
every shift and Tharrington was to continue his prescribed
medication. Dr. Moreno did not believe the symptoms required
an emergency room visit.
had an appointment to see Dr. Moreno on January 9, 2015 but
did not see him. Dr. Moreno claims that there was a mix up in
the scheduling, set by his medical staff, and that
Tharrington was in fact scheduled to see a doctor on January
14, 2015. Tharrington was upset following this encounter and
believes Dr. Moreno was intentionally denying him
treatment. In the interim, Tharrington was seen by
the nursing staff.
January 14, 2015, Tharrington was examined by another prison
physician, Dr. Martinez. Tharrington alleges that Dr.
Martinez was unaware of the x-rays that Dr. Moreno ordered on
December 29, 2014, and that Dr. Martinez did not prescribe
Tharrington any medication. Despite Tharrington's
argument to the contrary, Tharrington's uncontested
medical records, Dr. Moreno's affidavit, and
Tharrington's own pleadings indicate that Dr. Martinez
did review the x-rays and prescribed Tharrington additional
pain medication, including Neurontin and
additional emergency grievances, Tharrington was next
scheduled for a doctor's appointment on February 2, 2015.
According to Tharrington, he did not see a doctor and was
sent back to his housing unit after waiting all day. That
evening, Tharrington returned to the medical department
around 7 p.m. At 8 p.m., Tharrington was told that Dr. Moreno
refused to perform an examination. Tharrington asked
Correctional Officer Jones if he would get Dr.
Moreno.Tharrington then asked Dr. Moreno why he
refused to examine him. According to Correctional Officer
Jones' declaration, Dr. Moreno told Tharrington that he
was to be seen by Dr. Martinez because Dr. Martinez was more
familiar with Tharrington's pain management and
Tharrington could “not doctor shop”. See
Compl. at 10. Tharrington protested, arguing that Dr.
Martinez was not familiar with his situation and that
Tharrington wanted Dr. Moreno to examine him.
to Tharrington's medical records, he was next seen by Dr.
Martinez on February 18, 2015. Dr. Martinez discontinued
Naprosyn but added Indocin, a different NSAID, to treat
March 10, 2015, Tharrington again saw Dr. Moreno. Tharrington
allegedly told Dr. Moreno that he had filed a complaint to
the board of medicine and requested that Tharrington and Dr.
Moreno “start over.” Dr. Moreno was not
interested in having that conversation and kept the focus on
the current treatment. Dr. Moreno and Tharrington discussed
Tharrington's pain management. Tharrington expressed that
his pain was getting worse but acknowledged that the
Neurontin had resolved the pain in his 4th and 5th fingers.
Dr. Moreno conducted an examination of Tharrington and noted
that Tharrington alleged chronic upper back/lower neck pain
with left upper extremity radiculopathy. To treat this, Dr.
Moreno adjusted Tharrington's treatment plan to continue
the current dose of Neurontin, increase the Indocin to 50 mg
twice a day for 180 days, and add 705 mg of Robaxin, a muscle
relaxant, three times a day for 90 days. Dr. Moreno also
discontinued the order for ...