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Tharrington v. Commonwealth

United States District Court, W.D. Virginia, Roanoke Division

June 24, 2019

COMMONWEALTH OF VA., et al., Defendants.


          Norman K. Moon United States District Judge.

         Ronald A. Tharrington, Jr., a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, [1] 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.[2] 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.


         In 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.

         As 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, [4] including Tramadol, Neurontin, and Naproxen.[5] 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 his pain.

         Over 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.[6] 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 prison's infirmary.

         In his 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.

         On 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.

         Dr. 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.

         Between 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.[7] The nurses continued to monitor Tharrington, check his blood pressure, and dispense medication.

         On 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.

         Tharrington 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.[8] In the interim, Tharrington was seen by the nursing staff.

         On 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 Tylenol.[9]

         Following 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.[10]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.

         According 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 Tharrington's pain.

         On 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.”[11] 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 ...

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