Thomas v. Ross et al, No. 1:2013cv00989 - Document 55 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 09/29/2015. (dvanm, )
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Thomas v. Ross et al Doc. 55 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division Marcus D. Thomas, Plaintiff, I:13cv989 (TSE/TRJ) V. L. Ross, et ah, Defendants. MEMORANDUM OPINION Marcus D. Thomas, a Virginia inmate proceeding EES se, has filed a civil rights action pursuant to 42U.S.C. § 1983, alleging that the defendants, Laveme Ross, LPN ("Nurse Ross") and Ellen Johnson, LPN ("Nurse Johnson"), showed deliberate indifference to his serious medical needs. The defendants have filed a Motion for Sunmiaiy Judgment, as well as a memorandum of law and numerous supporting exhibits. Dkt. Nos. 49,50. Plaintiffwas given the Notice required by Local Rule 7(K) and the opportunity to file responsive materials pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975). Plaintiff has not filed a response. For the reasons that follow, defendants' Motion for Summary Judgment mustbe granted, 1. Background Defendants Laveme Ross and Ellen Johnson are both Licensed Practical Nurses who worked inthat capacity at Sussex I State Prison at all times relevant tothis lawsuit. Dkt. No. 50 (Declaration ofLaveme Ross, f 1; Declaration ofEllen Johnson, 1). Plaintiffwas transferred to Sussex I State Prison ("SISP") onJune 1,2011 and was housed atSISP during alltimes relevant to this lawsuit. Dkt. No. 50(Exhibit A Medical Records, pp. 1-2). Plaintiffhad a medical history significant for Type 2diabetes mellitus. Id At SISP, diabetic inmates like the plaintiffmay have blood sugar checks atset intervals during the day and are provided with insulin ifnecessary. Dockets.Justia.com Dkt. No. 50 (Declaration of Laveme Ross, ^ 4; Declaration of Ellen Johnson, H4). Diabetic inmates may refuse to have their blood sugar checked and may refuse to receive insulin. Id After checking a diabetic inmate's blood sugar level, a nurse must document the reading on a Blood Sugar Flow Sheet and/or a Medication Administration Record contained in that inmate's medical chart. Dkt. No. 50 (Declaration of Ellen Johnson, 14). If insulin is deemed necessary, the nurse must document how much insulin was administered to the inmate. Id If an inmate refuses to have his blood sugar checked or refuses insulin treatment, the nurse must document that refusal on a Complaint and Treatment Form, a Blood SugarFlow Sheet, and/ora Medication Administration Record contained in that inmate's medical chart. Dkt. No. 50 (Declaration of Laveme Ross,14). If an inmatedoes not allowhis bloodsugarto be checked first, a nurse may not administer insulin. Id at ^ 7. On January 24,2012 Nurse Ross was workingthe night shift at SISP from 7:00 pm until 7:30 am the next day. She was assigned to administer medications to inmates in 1Apod,the same pod to which plaintiffwasassigned. Id at ^ 5. During herrounds, security was conducting a count of the inmate population andinmates were restricted to their cells per security protocol. Id At that time no movement of inmates in and out of their cells was permitted. Id at ^ 6. Pursuant to jail procedures andsecurity reasons during the count, plaintiffwasrequired to have his blood sugar checked and insulin administered through the slot onthe cell door. Id Nurse Ross had no control over the securityprotocols at SISP,and she was required to comply with these rules. Id As nurses were instructed to do. Nurse Ross approached plaintiffs cell and attempted to check his blood sugar level through the trayslotonthecelldoor. Plaintiffwaved Nurse Ross away through the door, and Ms. Ross interpreted this actionas his refusal to have his blooddrawn. Id, see also Dkt. No. 50 (Exhibit A Medical Records, p. 12). Plaintiff originally alleged that he did not want to have Nurse Ross check his blood sugar level through the cell door slot, so he told her to come back after the count so that he could have his blood sugar level checked outside of his cell. Dkt. No. 1, Compl. Sec. IV. After plaintiff waved her away, Nurse Ross documented this refusal on a Complaint and Treatment Form and on his Medication Administration Record. Dkt. No. 50 (Declaration of Laveme Ross,16), see also Dkt.No. 50 (Exhibit A Medical Records, pp. 12, 63). On April 14,2012 Nurse Johnsonwas assigned to administer medication to offenders housed in segregation, which is where plaintiff was being housed at that time. Dkt. No. 50 (Declaration of Ellen Johnson, ^ 6). According to Nurse Johnson, she went to plaintiff's cell at approximately 4:00 pm on April 14,2012 to check his blood sugar level and to administer medication. Id Plaintiff allowed Nurse Johnson to check his blood sugar level and it was 150. Id., see also Dkt. No. 50 (ExhibitA Medical Records, p. 79). Nurse Johnson asserts that she recorded plaintiffs blood sugar level in the Medication Administration Record. Dkt. No. 50 (Declaration ofEllen Johnson, H7). Per his doctor's order, this level was normal and did not require administration of insulin. Id at 6, see also Dkt. No. 50 (Exhibit A Medical Records, p. 79). Plaintiff, however, alleged that Nurse Johnson never actually checked his blood sugar level on April 14,2012. Dkt. No. 1, Compl. Sec. IV. Rather, plaintiff originally claimed thatNurse Johnson accidently checked another inmate's bloodsugar level and recorded that level (150) as plaintiffs in his medical records. Id 11. Standard of Review Summaryjudgment "shall be rendered forthwith ifthe pleadings, depositions, answers to interrogatories, andadmissions on file, together withtheaffidavits, if any, show thatthere is no genuine issue asto any material fact and that the moving party isentitled tojudgment asa matter of law." Fed. R. Civ. P. 56. The moving party bears the burdenof proving thatjudgmenton the pleadings is appropriate. See Celotex Corp. v. Catrett. 477 U.S. 317,323 (1986). To meet that burden, the moving party must demonstrate that no genuine issues of material fact are present for resolution. Id at 322. Once a moving party has met its burden to show that it is entitled to judgment as a matter oflaw, the burden then shifts to the nonmoving party to point out the specific facts that create disputed factual issues. Anderson v. Libertv Lobby. Inc.. 477 U.S. 242,248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 587 (1986). In evaluating a motion for summary judgment,a districtcourt shouldconsiderthe evidence in the light most favorable to the nonmovingparty and draw all reasonable inferences from those facts in favor ofthat party. UnitedStatesv. Diebold. Inc.. 369 U.S. 654.655 (1962). Those facts which the moving party bears the burden ofproving are facts which are material. "[T]he substantive law will identify which facts are material. Only disputes over facts which might affect the outcome of the suit under the governing law will properiy preclude the entry of summaryjudgment." Anderson. 477 U.S. at 248. An issue of material fact is genuine when, "the evidence.,. create[s] [a] fair doubt; whollyspeculative assertions vwll not suffice." Ross v. Commc'ns Satellite Corp.. 759 F.2d 355,364 (4th Cir. 1985), abrogated on other grounds bv Price Waterhouse v. Hopkins. 490 U.S. 228 (1989). Thus, summaryjudgment is appropriate only where no material facts are genuinely disputedand the evidence as a whole could not lead a rational fact finder to rule for the nonmoving party. Matsushita. 475 U.S. at 587. III. Analysis Summary judgment in favor of defendants Nurse Ross and Nurse Johnson is appropriate because the pleadings, affidavits, and exhibits on file demonstrate that neither defendant was deliberately indifferent to plaintiffs seriousmedical needs. A nftfftnHflnts Were Not Deliberatelv Indifferent to Plaintiffs Serious Medical Needs It is undisputed that, despite plaintiffs allegations to the contrary, defendants did not violate plaintifTs Eighth Amendment rights. To prevail on a claim for deliberate indifferencethat rises to an Eighth Amendment violation, plaintiff must establish facts sufficient to show that jail officials were deliberately indifferent to a serious medical need. See Estelle v. Gamble. 429 U.S. 97,105 (1976); Staples v. Va. Deo't of Corr.. 904 F.Supp. 487,492 (E.D.Va. 1995). Thus, plaintiffmustallegetwo distinctelements to statea claimuponwhichrelief canbe granted. First, he must allege a sufficiently serious medical need. See, e.g.. Hall v. Holsmith. 340 Fed. Appx. 944,947 & n.3 (4th Cir. 2009) (holding that flu-like symptoms did not constitute a serious medical need); Cooper v. Dvke. 814 F.2d 941,945 (4th Cir. 1987) (determining that intense pain from an untreated bullet wound is sufficiently serious); Loe v. Armistead. 582 F.2d 1291 (4th Cir. 1978) (concludingthat the "excruciatingpain" of an untreated broken arm is sufficiently serious). Second, he must allege deliberate indifference to that seriousmedical need. Under this second prong, an assertion of medical malpractice is notenough to state an Eighth Amendment violation; instead, plaintiffmust allege specific actsor omissions by the defendants thatprove a deliberate indifferenceto basic standards ofdecency. See Estelle. 429 U.S. at 106; Daniels v. Williams. 474 U.S. 327,328 (1986); Miltierv. Beom. 896 F.2d 848,851 (4th Cir. 1990). The prisonermust demonstrate that defendants' actionswere "[s]o grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." Beom. 848 F.2d at 851 (internal citations omitted). Medical malpractice does not give rise to a constitutional violation, nordoesdisagreement between the inmate andthe prison about the proper wayto treat a medical condition. See, e.g.. Wright v. Collins. 766 F.2d 841,849 (4th Cir. 1985). i. Nurse Ross Plaintiffarguably satisfies the objective "serious medical need" component for alleging an Eighth Amendment violation; however, he fails to establish the "deliberate indifference" prong of the inquiry with respect to defendant Nurse Ross. With respect to Nurse Ross, it is clear that on January 24,2012 she was not deliberately indifferent to plaintiffs serious diabetic condition. The maintained medical records Nurse Ross has supplied indicate that she appeared at plaintiffs cell to check his blood sugar level and potentially administer medication; however, she was waved away by plaintiff. Dkt. No. 50 (Declaration of LavemeRoss,^ 6), ^ also Dkt. No. 50 (ExhibitA Medical Records, p. 12). Plaintiffdid not wantNurse Ross to checkhis blood sugar levelthrough the slot on his cell door, Dkt. No. 1, Compl. Sec. IV. Plaintiff had the right to refuse medical treatment, and Nurse Ross reasonably interpreted plaintiffs action ofwaving her away as a refusal to have his blood sugar checked at that time. Id. Had plaintiff complied with Nurse Ross' requestand placed his arm through the slot on his cell door. Nurse Ross would have checked his blood sugar and administered him insulin, if required. Nurse Ross did not do so only because plaintiffwavedher away, and she subsequently documented this refusal in his medical records in compliance with typical procedures. Id. Even ifNurse Ross misinterpreted plaintiff's wave as a refusal when in fact he wanted his blood sugar checked,this wouldconstitute a simple misunderstanding or inadvertence that does not rise to the level of "shockingthe conscience" such that a constitutional violation could have occurred. Based on the uncontested evidence defendants presented, Nurse Ross' actions evidently do not riseto the required level of wantonness to prevail in an Eighth Amendment civil rights lawsuit concerning deliberate indifference to a serious medical need in an incarceration setting. Therefore, Nurse Ross wasnot deliberately indifferent to plaintiffs serious medical need, and she is entitled to judgment as a matter of law. ii. Nurse Johnson With respect to Nurse Johnson, it is similarly evident that on April 14,2012, she was not deliberately indifferent to plaintiffs serious medical needs. On that day, Nurse Johnson approached plaintiffs cell and checked his blood sugar level, whichshe accordingly documented in his Medication Administration Record. Dkt. No. 50 (Declaration of Ellen Johnson, ^ 7), see also Dkt. No. 50 (Exhibit A Medical Records, p. 79). Had Nurse Johnson not checked his blood sugar level, it would have been her practiceto recordso in his medical records. Id. Plaintiffhas come forward with no evidenceto support his initialallegationthat Nurse Johnson forgot to check his bloodsugarand recorded anotherinmate's bloodsugarlevelas thoughit werehis. Dkt. No. 1, Compl. Sec. IV. Even if Nurse Johnsonhad inadvertently or accidently documented another offender's blood sugarreadingon plaintiff's Medication Administration Form, this conductwould only rise to mere negligence, which cannot amount to a constitutional violation. Dkt. No. 1, Compl. Sec. IV., see also Dkt. No. 52. Therefore, Nurse Johnson is entitled to judgmentas a matter of law. R Plaintiff Cannot Establish a Violation of the Americans with Disabilities Act Plaintiffalleges that NurseRossand Nurse Johnson violated his rights pursuant to the Americans with Disabilities Act ("ADA"). Compl. Sec. IV. Title II ofthe ADA provides: [s]ubject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded fi:om participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity. 42 U.S.C. § 12132. TheADA does not permit claims against individual defendants; rather, the ADA recognizes causes of action for discrimination bypublic entities. Baird v. Rose 192 F.3d 462,471 (4th Cir. 1999), see dso 42 U.S.C. § 12131. Plaintiff alleges that defendants violated his rights under the ADA, buthis allegations do not specify how the ADA applies to him or how his rights were specifically violated by defendants. Moreover, the defendants are not a"public entity" under the ADA (42 U.S.C. § 12131). and they are not subject to suit under Title II. Thus, defendants are entitled to judgment as a matter of law. IV. Conclusion For the foregoing reasons, defendants' Motion for Summary Judgment must be granted. An appropriateOrder shall issue, Entered this day of Alexandria, Virginia T.S.Ellis. Ill UmtedStatesDistrict Judge
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