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Bauberger v. Davis

United States District Court, E.D. North Carolina, Western Division

February 25, 2014

WILLIAM BAUBERGER, Plaintiff,
v.
ARTHUR DAVIS and SAMPSON HARRELL, Defendants.

ORDER

LOUISE W. FLANAGAN, District Judge.

The matter comes before the court on defendants' motion for summary judgment (DE 78) pursuant to Federal Rule of Civil Procedure 56, which was fully briefed. In this posture, the issues raised are ripe for adjudication. For the foregoing reasons, the court grants defendants' motion.

STATEMENT OF THE CASE

On February 15, 2011, plaintiff, a state inmate, filed this action pursuant to 42 U.S.C. § 1983. Plaintiff alleged that defendants Arthur Davis ("Davis") and Sampson Harrell ("Harrell") (collectively, "defendants"), as well as former defendants Boyd Bennett ("Bennett"), Grady Haynes ("Haynes"), and Cheryl Bolton ("Bolton"), and the North Carolina Department of Correction ("DOC"), [1] acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the United States Constitution. On September 17, 2012, the court denied defendants' motion to dismiss and subsequently issued a case management order.

On May 20, 2013, defendants filed a motion for summary judgment arguing that plaintiff's action is barred by the statute of limitations. Alternatively, defendants argue that plaintiff failed to allege a constitutional violation and raise the affirmative defense of qualified immunity. Plaintiff responded on August 9, 2013, and defendants filed a reply on September 6, 2013.[2]

STATEMENT OF FACTS

Viewed in the light most favorable to plaintiff, the facts may be summarized as follows. In October 2006, plaintiff injured his upper arm while working out on the recreation yard at Warren Correctional Institution ("Warren"). Compl. ¶ IV. On March 15, 2007, plaintiff re-injured his elbow. Davis Aff. ¶ 10 and Ex. 5.

On March 27, 2007, plaintiff saw a nurse in response to a March 26, 2007, sick call appointment request complaining about pain in his left elbow and arm. Davis Aff. ¶ 8. Upon examination, the nurse noted yellowish bruising and that plaintiff's left upper arm was tender to the touch. Id . and Ex. 3. The nurse further noted that plaintiff was using an old elastic brace. Id . The nurse's assessment was a non-emergent alteration in comfort, and the nurse placed plaintiff's chart in line for a chart review by a physician. Id.

On March 29, 2007, defendant Davis reviewed plaintiff's chart.[3] Id . ¶ 9. Based upon his chart review, Davis determined that plaintiff's pain was musculoskeletal, and he ordered Percogesic (pain reliever) for one month to treat plaintiff's pain. Id . ¶ 9 and Ex. 4. Davis also instructed that plaintiff return to the clinic in two to four weeks if his symptoms persisted. Id.

On April 4, 2007, plaintiff attended an appointment with a nurse in response to a April 3, 2007, sick call request in which plaintiff requested a refill of his allergy medication Claritin and a follow-up regarding his left elbow. Id . ¶ 10 and Ex. 5. Plaintiff informed the nurse that he was experiencing shooting pain from his left elbow to his shoulder. Id . Plaintiff explained that the injury to his elbow took place over a year prior to the date of his examination, but that he had re-injured it around March 15, 2007. Id . The nurse observed tightness in plaintiff's left elbow, but did not note any bruising. Id . The nurse assessed plaintiff with an alteration in comfort, and noted that plaintiff had just been prescribed Percogesic. Id . The nurse further instructed plaintiff to notify the clinic if the prescribed medication was ineffective. Id.

Plaintiff saw a nurse for a follow-up appointment on April 11, 2007. Id . ¶ 11 and Ex. 6. Plaintiff informed the nurse that he continued to experience pain while taking the prescribed Percogesic. Id . The nurse examined plaintiff, assessed him with a "knowledge deficit, " and referred him to a physician for an appointment. Id.

On April 16, 2007, defendant Davis examined plaintiff for the first time. Id . ¶ 12 and Ex. 7. Plaintiff informed Davis that he sustained his left arm injury over a year prior to his examination while lifting weights, and that he recently re-injured his arm when he slipped in the shower. Id . Plaintiff further complained about pain in his triceps area, especially when extending his arm. Id . At the conclusion of the examination, Davis assessed plaintiff with tendinitis of the left elbow and prescribed steroids and bracing. Id.

On April 29, 2007, a nurse examined plaintiff in response to plaintiff's sick call request in which he complained of continued pain in his left elbow and triceps. Id . ¶ 13 and Ex. 8. The nurse noted that plaintiff had completed his Prednisone taper and that although plaintiff reported that the pain in his left arm had improved, he still described his pain as constant. Id . The nurse referred plaintiff to the physician for a chart review. Id . Defendant Davis subsequently reviewed plaintiff's chart, ordered Percogesic, and instructed plaintiff to return to the clinic in two to three weeks if necessary. Id . ¶ 14 and Ex. 7.

On May 12, 2007, plaintiff was examined by a nurse and requested that she provide him with a steroid injection. Id . ¶ 15 and Ex. 9. The nurse referred plaintiff to defendant Davis. Id . Davis subsequently examined plaintiff, and plaintiff informed him that his left elbow had improved with the use of oral steroids, but that he would like a steroid injection. Id . ¶ 16 and Ex. 10. In ...


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