Opinion
Civil Action 4:19-cv-2171-TMC-TER
06-29-2021
BILLY D. MORRISON, #296920, a/k/a BILLY DEVAR MORRISON, #256128, Plaintiff, v. SCDC, LEE INFIRMARY, DR. J. MCREE, DR. J. PATE, NURSE D. CAPADONIA, NURSE S. BLACKWELL, and JULIE POWELL, Nursing Supervisor, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his serious medical needs. Presently before the Court are Defendant Dr. J. Pate's Motion for Summary Judgment (ECF No. 108) and Defendants South Carolina Department of Corrections (SCDC), Dr. J. McRee, Nurse Cappadonia, Nurse S. Blackwell, and Julie Powell's Motion for Summary Judgment (ECF No. 111). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motions could result in dismissal of his Complaint. Plaintiff filed a Response (ECF No. 123). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
In his Amended Complaint (ECF No. 44), Plaintiff complains of the medical care he received while he was housed at Kirkland Correctional Institution between September and December of 2018 and Lee Correctional Institution between December of 2018 through December of 2019. Am. Compl. p. 12. He alleges that Defendants were deliberately indifferent to his serious medical needs by failing to provide him with proper treatment following a spinal cord injury. He alleges that he was denied proper pain management, it took one year for him to get gloves for his hands, and he has made numerous attempts for at least a year and a half to obtain a wheelchair. Am. Compl. p. 6. He alleges that Dr. McRee repeatedly refused him medication for nerve and spine damage as a result of other inmates' abuse of such medicine. Am. Compl. p. 7. Plaintiff alleges that Dr. Pate knew of the seriousness of his injuries but failed to provide proper treatment, overdosed him on blood thinner medication, and failed to provide hospice care. He alleges that he repeatedly asked Nurse Cappadonia to aid and assist with spasms and obtaining a wheelchair and pain medication and medical care for his hands, but instead she allowed other inmates to change his catheters and urine bags. Am. Compl. p. 10. Plaintiff alleges that Nurse Blackwell was deliberately indifferent to his medical needs because he supervised the nurses and oversaw the daily operations of the infirmary. Am. Compl. p. 11.
Plaintiff complains that when he first arrived at Kirkland the nurses had none of his medical records and did not attempt to obtain his medical records so they were unaware of the treatment plan for his spinal cord injury. Therefore, they gave him only Tylenol for his pain. Am. Compl. pp. 13-14. Plaintiff also alleges that when he arrived at Lee, Dr. Pate attempted to change his flexeril to “backrin” [sic] but it could not be refilled because of abuse by other inmates. Plaintiff alleges that Dr. Pate also steadily increased his blood thinner medication because someone from Kirkland told him Plaintiff had a blood clot though Plaintiff asserts he did not. Am. Compl. p. 14. He was also given heart medicine by another doctor to slow down his heart even though he did not have a problem with his heart. Am. Compl. pp. 14-15. Plaintiff alleges that as a result of Defendants' failure to properly treat his pain, he suffered nerve damage which caused his hands and feet to get worse, and because he was given unnecessary blood thinners and heart medication, his life and wellness have been put into jeopardy.
According to his medical records at SCDC, on December 29, 2017, while he was incarcerated at the Greenville County Detention Center, Plaintiff fell from a bunk bed and fractured his cervical spine, which resulted in paraplegia. Pate Aff. ¶ 5 (ECF No. 108-1). He was admitted to Greenville Memorial Hospital and remained there until January 19, 2018, when he was transferred to Kirkland in Columbia, SC. Pate Aff. ¶ 5. On November 29, 2018, Plaintiff was transferred from Kirkland to Lee in Bishopville, SC. Pate Aff. ¶ 5.
Dr. Pate worked as a physician at Lee from June 2014, until April 5, 2019. Pate Aff. ¶ 3. When he arrived at Lee, Plaintiff had a complicated medical history and a multitude of medical problems, including paraplegia, hypertension, chronic obstructive pulmonary disease, left hip fracture, chronic pain, alcohol abuse, drug abuse, anxiety, depression and antisocial personality disorder. Pate Aff. ¶ 6. He had been treated, inter alia, with Coumadin (generic: warfarin) for deep vein thrombosis (“DVT”) prophylaxis, baclofen (a muscle relaxant) for muscle spasms, and prednisone (an oral corticosteroid / anti-inflammatory) and Bengay topical cream for pain in the joints of his hands. Pate Aff. ¶ 6.
A DVT, a blood clot formed in the deep veins of the legs, can travel to the lungs and cause a pulmonary embolism, a blockage in one of the pulmonary arteries, which can be life-threatening. Pate Aff. ¶ 7. Patients who are prescribed Coumadin to prevent the formation of blood clots, including DVTs, need to have their blood coagulation status monitored periodically by a laboratory test known as a PT/INR. Pate Aff. ¶ 7. A prothrombin time (PT) test measures how long it takes for a clot to form in a blood sample, and an INR (international normalized ratio) is a type of calculation based on PT test results. Pate Aff. ¶ 7. The results of the PT/INR help the physician in prescribing the appropriate dosage of Coumadin. Pate Aff. ¶ 7. A patient taking an excessive dosage of Coumadin would face an increased risk of bleeding, while a patient taking a suboptimal dosage of Coumadin would face a higher risk of thromboembolism, including DVT or PE. For most patients who are prescribed Coumadin for DVT prophylaxis, the target therapeutic range for the INR is 2.0 to 3.0. Pate Aff. ¶ 7. While Plaintiff was an inmate at Lee, his PT/INR was checked every week. Pate Aff. ¶ 8.
Dr. Pate saw and evaluated Plaintiff in the Lee infirmary on a weekly basis from November 29, 2018 (when Plaintiff arrived at Lee) through April 5, 2019 (when Dr. Pate's employment at Lee ended). Pate Aff. ¶ 9. As noted in Dr. Pate's progress notes, Plaintiff had muscle spasms that were spontaneous and painful. Pate Aff. ¶ 10. For this condition Dr. Pate treated him with baclofen 10 mg, a prescription muscle relaxer. Dr. Pate refilled his baclofen prescription on several occasions, including December 4, 2018 and March 19, 2019. Pate Aff. ¶ 10. After learning that the baclofen he ordered on March 19, 2019 was no longer available, on April 4, 2019, Dr. Pate prescribed Flexeril 10 mg for Plaintiff's continuing muscle spasms. Pate Aff. ¶ 10. Plaintiff also had some pain in his hands for which he had been treated, prior to his arrival at Lee, with Bengay, a topical pain reliever cream. Pate Aff. ¶ 11. Dr. Pate refilled his Bengay prescription on several occasions, including December 6, 2018, February 5, 2019, and March 28, 2019. Pate Aff. ¶ 11. Plaintiff told Dr. Pate that Bengay was the “only thing that has helped.” Pate Aff. ¶ 11.
Each prescription Dr. Pate ordered for the baclofen and Bengay was reviewed and approved by Dr. McRee, the Medical Director, except that the order for baclofen on March 19, 2019 was rejected because it was no longer available. Pate Aff. ¶ 12. For this reason, Dr. Pate ordered another muscle relaxer, Flexeril, as a substitute. Pate Aff. ¶ 12. Dr. Pate never declined to prescribe Plaintiff an appropriate muscle relaxer or pain reliever, and in his medical judgment, the medications he prescribed for Plaintiff were appropriate and within the standard of care and adequately treated his symptoms. Pate Aff. ¶ 13.
Dr. Pate avers that Plaintiff was not terminally ill and-contrary to his allegation in the complaint-did not need “hospice” care. Pate Aff. ¶ 14. His muscle spasms and pain related to his spinal injury were adequately treated with baclofen. Pate Aff. ¶ 14. His condition did not warrant treatment through SCDC's hospice and palliative care service. Pate Aff. Pf 14; SCDC Policy No. PS-10.10, “SCDC Hospice Program, ” (ECF No. 108-2).
Dr. Pate avers that he did not “overdose” Plaintiff on blood thinners. Rather, he prescribed the appropriate dosage of Coumadin based on the results of Plaintiff's regular lab work, namely his PT/INR tests, according to the standard of care. Pate Aff. ¶ 15. Plaintiff's PT/INR was checked every week at Lee. Pate Aff. ¶ 16. On several occasions, when his INR was low-well below the target therapeutic range of 2.0 to 3.0-Dr. Pate wrote orders to increase the dosage of his Coumadin. Pate Aff. ¶ 16. On January 8, 2019, his INR was 1.1. Pate Aff. ¶ 16. On January 10, 2019, upon reviewing this PT/INR result, Dr. Pate gave an order to increase his Coumadin from one 7.5 mg tablet daily to one 7.5 mg tablet four days a week and 1 ½ 7.5 mg tablets three days a week (Monday, Wednesday and Friday), which Dr. Pate avers is a very modest increase. Pate Aff. ¶ 16. In his progress note of February 28, 2019, Dr. Pate noted that Plaintiff's PT/INR was “not therapeutic” and ordered that his Coumadin dosage be increased from 7.5 mg tablets to 10 mg tablets. Pate Aff. ¶ 16. On March 21, 2019, when Plaintiff's INR was 1.2, Dr. Pate increased the dosage of his Coumadin to 15 mg per day (1 ½ 10 mg tablets) to help ensure that his INR stayed within the target therapeutic range (2.0 to 3.0) and instructed the nurse to “help [patient] put on the support hose he already has daily” to help prevent DVTs. Pate Aff. ¶ 16. To Dr. Pate's knowledge, Plaintiff never experienced any complications of bleeding due to being on Coumadin. Pate Aff. ¶ 17.
Due to his spinal injury, Plaintiff is paraplegic and cannot walk; he needs a wheelchair. Pate Aff. ¶ 18. This is noted on his initial assessment upon admission to the infirmary at Kirkland on September 20, 2018. Pate Aff. ¶ 18. A fellow inmate at Lee, Samuel Huguenin, Jr., avers that Plaintiff “has no wheelchair or one to use in the infirmary due to size and [height].” Huguenin Decl. ¶ 8 (ECF No. 123-1). Dr. Pate avers, however, that to his knowledge while Plaintiff was at Lee, a wheelchair was available to him and he used it. Pate Aff. ¶ 18. Dr. Pate does not recall him ever asking for a wheelchair or complaining that one had not been provided for him. Pate Aff. ¶ 18. Had Plaintiff ever complained to Dr. Pate or informed him that he had been denied access to a wheelchair, Dr. Pate would have taken appropriate action to ensure that a wheelchair was provided to him. Pate Aff. ¶ 18. In his progress note of January 31, 2019, Dr. Pate noted that Plaintiff had an “abrasion on right side of [his] right thigh from wheelchair - chair has been fixed - dressing to wound.” Pate Aff. ¶ 18. So, at least at that time, his medical records reflect that he had a wheelchair. Pate Aff. ¶ 18.
On February 14, 2019, Dr. Pate saw Plaintiff and noted that he “needed to see Ortho[pedics] about hands and special gloves he needs.” Pate Aff. ¶ 19. Dr. Pate ordered a consultation with the orthopedic clinic. Pate Aff. ¶ 19. Plaintiff was seen in the orthopedic clinic on April 1, 2019, and the orthopedic consultant ordered “bilateral resting hand splints to help with his flexion contractures.” Pate Aff. ¶ 19.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, arguing that Defendants were deliberately indifferent to his serious medical needs. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The parties do not dispute that they were acting under color of state law in their individual capacities at all times relevant to this action.
Defendants argue that summary judgment is appropriate because Plaintiff failed to exhaust his administrative remedies. The Prison Litigation Reform Act (PLRA) requires that a prisoner exhaust the available administrative remedies before filing a 1983 action concerning conditions of his confinement. 42 U.S.C.1997e(a). In enacting the PLRA, Congress carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended section 1997e so that it now provides, “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Id. § 1997e(a). Accordingly, before Plaintiff may proceed with his claims in this Court, he must first exhaust his administrative remedies. The United States Supreme Court has held that “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Jones v. Smith, 266 F.3d 399 (6th Cir.2001) (exhaustion required even though Plaintiff claimed futility); Larkin v. Galloway, 266 F.3 d 718 (7th Cir.2001) (exhaustion required even though Plaintiff claimed he was afraid); see also Claybrooks v. Newsome, 2001 WL 1089548 (4th Cir., September 18, 2001) (unpublished opinion) (applying Booth v. Churner to affirm district court's denial of relief to Plaintiff). A failure to exhaust all levels of administrative review is not “proper exhaustion” and will bar actions filed by inmates under any federal law, including § 1983. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006).
SCDC's Grievance System involves a three-step process. First, except in cases of disciplinary convictions or custody reductions, an inmate must attempt to resolve the issue through informal resolution by submitting a Request to Staff Member (RTSM) form within eight working days of the incident. SCDC Inmate Grievance System Procedures, GA-01.12 (May 12, 2014) (Grievance Policy) § 13.2 (ECF No. 108-5). After a response to the RTSM is received, the inmate may file a Step 1 grievance, which also requires the submission of supporting documentation. Grievance Policy § 13.2. If the Step 1 grievance is returned unprocessed, the inmate must submit a new grievance which corrects any deficiencies noted in the first grievance, or appeal to the Chief of the Inmate Grievance Branch within ten working days of the unprocessed grievance being returned. Grievance Policy § 13.3. On the other hand, if the Step 1 grievance is processed and the inmate is unsatisfied with the response thereto, the inmate must appeal such action by filing a Step 2 grievance within five calendar days of the response. Grievance Policy §§ 13.6-13.7. The response to the Step 2 grievance is considered the agency's final decision on the issue. Grievance Policy § 13.7.
The evidence in the record reveals that Plaintiff submitted a RTSM on April 11, 2019, directed to Nurse Cappadonia, in which he complains that Dr. McRee disapproved him for “Backrin” and so Dr. Pate prescribed him flexeril instead. RTSM Form Dated 4-11-19 (ECF No. 44-1, p. 4). It is stamped as received by Lee Medical on April 16, 2019, and received by General Counsel on May 1, 2019. Id. The “Disposition by Staff Member” section is blank. Id. There is no indication in the record that Plaintiff ever submitted a Step 1 grievance regarding this issue. Plaintiff asserts in his Amended Complaint that his grievance was returned as “non grievable” and he kept attempting informal resolutions because “this type of medical I'm told is a non grieveable issue.” Am. Compl. p. 19. However, he has not submitted any of the additional attempts at informal resolution, and the records from the Inmate Grievance Branch of the Office of General Counsel do not include any additional RTSM forms from Plaintiff on the issues raised herein. See Medical RTSM Forms (ECF No. 108-6); Inmate Grievance History (ECF No. 108-7).
Plaintiff also filed a RTSM on September 23, 2020, directed to Nurse Powell complaining that neither she nor anyone else had talked to him about his gloves falling apart. RTSM Form Dated 9-23-2020 (ECF No. 123-1, p. 12). However, this grievance was submitted after this action was filed. It is well-settled that exhaustion is a prerequisite to suit and must be completed prior to filing an action. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 676-77 (4th Cir. 2005); see, e.g., Page v. Paduly, No. 9: 09-cv-0952-RMG-BM, 2010 WL 4365644, at *1 (D.S.C. Oct. 28, 2010) (finding that a plaintiff failed to exhaust his administrative remedies where he either did not properly pursue a grievance concerning the issues raised in the case prior to filing the lawsuit, or did not even file grievances until after the lawsuit had already commenced).
The PLRA's exhaustion requirement is a robust one. See Ross, 136 S.Ct. at 1856-58. Prisoners must therefore diligently and properly follow the administrative procedures that are available. See Woodford, 548 U.S. at 90. As stated above, a failure to exhaust all levels of administrative review is not “proper exhaustion.” Id. Therefore, because Plaintiff did not fully exhaust his administrative remedies with respect to the issues raised herein, summary judgment is appropriate.
Further, the issue raised in Plaintiff's RTSM-that he was not given the prescription he preferred-does not give rise to an Eighth Amendment claim for deliberate indifference to serious medical needs. De'lonta v. Johnson, 708 F.3d 520, 526 (4th Cir.2013) (holding that prisoners do not have a constitutional right “to the treatment of his or her choice”); see also Faison v. Lightsey, No. 5:09-CT-3179-D, 2011 WL 4589973, at *6 (E.D. N.C. Sept. 30, 2011) (Granting summary judgment for prison physician because prison physician's substitution of one pain medication for another recommended by consulting oral surgeon "did not rise to a level of deliberate indifference"); Yagman v. Johns, No. 5:08-CT-3089-FL, 2010 WL 7765708, at *5-6 (E.D. N.C. Mar. 29, 2010) (Prisoner's preference for alternative medication causing less severe side effects was not sufficient to state Eighth Amendment claim).
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant Dr. J. Pate's Motion for Summary Judgment (ECF No. 108) be granted, Defendants South Carolina Department of Corrections (SCDC), Dr. J. McRee, Nurse Cappadonia, Nurse S. Blackwell, and Julie Powell's Motion for Summary Judgment (ECF No. 111) be granted, and this case be dismissed in its entirety.
The parties are directed to the important information on the attached page.