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Durand v. Charles

United States District Court, M.D. North Carolina

June 20, 2017

ANTHONY G. CHARLES, M.D., Defendant.


          L. Patrick Auld United States Magistrate Judge

         This case comes before the undersigned United States Magistrate Judge for a recommendation on Plaintiff's “Motion for Summary Judgement” (Docket Entry 29) (the “Summary Judgment Motion”). For the reasons that follow, the Court should deny the Summary Judgment Motion.


         Pursuant to 42 U.S.C. § 1983, Rayborn J. Durand (the “Plaintiff”) commenced this action against Anthony G. Charles, M.D. (the “Defendant”) for acts and/or omissions amounting to deliberate indifference to Plaintiff's serious medical needs during Plaintiff's pretrial detention by the North Carolina Department of Public Safety (the “DPS”). (Docket Entry 2 (the “Complaint”) at 3-6.)[1] Defendant initially moved to dismiss the Complaint pursuant to “Rule 12(b)(6) of the Federal Rules of Civil Procedure” (the “Rules”). (Docket Entry 12 at 1.) As, however, “construed in the light most favorable to Plaintiff and taking all reasonable inferences in his favor, the Complaint alleges that Defendant knowingly failed to treat his obvious, serious medical need, which required prompt surgical intervention” (Docket Entry 22 at 17), the undersigned concluded that the Complaint “establish[ed] a claim for deliberate indifference sufficient to withstand Rule 12(b)(6) dismissal” (id. at 15). The undersigned therefore recommended denial of Defendant's dismissal motion. (See id. at 22.) The Court (per United States District Judge Loretta C. Biggs) adopted that recommendation. (See Docket Entry 25 at 1.) Thereafter, the parties commenced discovery. (See Text Order dated Jan. 30, 2017 (authorizing discovery).) Less than halfway through the discovery period (see id. (establishing discovery deadline of July 31, 2017)), Plaintiff moved for summary judgment (see Docket Entry 29), which Defendant opposes (see Docket Entry 30).[2]


         I. Summary Judgment Standards

         “The [C]ourt shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of establishing the absence of such dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In analyzing a summary judgment motion, the Court “tak[es] the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). In other words, the nonmoving “party is entitled ‘to have the credibility of his evidence as forecast assumed, his version of all that is in dispute accepted, [and] all internal conflicts in it resolved favorably to him.'” Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc) (brackets in original) (quoting Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)). If, applying this standard, the Court “find[s] that a reasonable jury could return a verdict for [the nonmoving party], then a genuine factual dispute exists and summary judgment is improper.” Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996).

         II. Plaintiff's Allegations

         In his unverified Complaint, Plaintiff alleges that: He “was diagnosed with a right inguinal hernia” during his pretrial detention at the DPS's Craven Correctional Institution (the “Craven C.I.”). (Docket Entry 2 at 4.)[3] Defendant performed “a right inguinal hernia repair with mesh” on Plaintiff “at the U. N.C. Medical Center at Chapel Hill” (the “U. N.C. M.C.”) on February 1, 2013. (Id.) “In the next days[, Plaintiff's] right scrotum became swollen and painful, ” causing his return to the U. N.C. M.C. on February 7, 2013, at which point Defendant “excised a retained distal sac sized 6.8 cm x 3.7 x 2.5 cm.” (Id.) Following this surgery, Plaintiff “was taken to Central Prison” (the “C.P.”) and “admitted to the C.P. Hospital acute care ward.” (Id.) Plaintiff “developed a painful swollen hardened mass surrounding his right testicle” and, at an appointment at U. N.C. M.C. on February 19, 2013, “was instructed to take ibuprofen for pain and to elevate and ice his scrotum for swelling and was discharged from [Defendant's] care.” (Id.)

         On February 21, 2013, an ultrasound technician conducted an ultrasound of Plaintiff's scrotum at the C.P. Hospital. (Id.) The ultrasound technician informed Physician Assistant Kurian (“P.A. Kurian”), Plaintiff's C.P. Hospital “care provider, ” that the ultrasound “revealed decreased to no blood flow to [Plaintiff's] right testicle.” (Id.) “P.A. Kurian emergently contacted [Defendant] who when told of the [ultrasound] finding stated that he was already aware that the blood supply to [Plaintiff's] testicle was diminished and there was a good chance [Plaintiff] would lose his testicle. [Defendant] counseled P.A. Kurian against tak[i]ng any further action.” (Id. at 5.) Thereafter, P.A. Kurian informed Plaintiff “of the [ultrasound] result and of the impending possible loss of his testicle, ” and “told [him] that no further action would be taken at [Defendant's] recommendation.” (Id.)

         “That evening, . . . Dr. Tharrington, a radiologist who had just read [Plaintiff's ultrasound] results, ” called “Dr. Bowen of the C.P. Hospital emergency dep[artment].” (Id.) Dr. Tharrington told Dr. Bowen “that immediate emergency surgical consultation and followup was urged concerning the lack of testicular blood flow.” (Id.) On the morning of February 22, 2013, Plaintiff underwent exploratory surgery by Dr. Gorden Fifer at the U. N.C. M.C., which “revealed a necrotic right testicle which was removed.” (Id.) On March 25, 2013, Plaintiff “was released from Dr. Fifer's care and was also released from the C.P. Hospital and returned to Craven C.I.” (Id.)

         “[T]he lack of or decreased blood flow to [Plaintiff's] testicle, which was foreknown by [Defendant] before the [ultrasound, ] was a serious medical need requir[i]ng treatment.” (Id. at 6.) Defendant “was deliberately indifferent to this serious medical need by failing to initiate action when he first knew of the lack of or decreased blood flow and possible impending loss of [Plaintiff's] testicle and by counseling against tak[i]ng any preventative action to prevent its loss.” (Id.) “This deliberate indifference resulted in a significant injury to [Plaintiff], the loss of his testicle, the importance of which is compounded by the fact that [Plaintiff] is incarcerated.” (Id.) This conduct violated Plaintiff's “right to due process as . . . a pretrial detainee, ” for which violation, Plaintiff “seek[s] compensatory and punitive damages, costs of this action[, ] and any other relief the [C]ourt deems just and proper.” (Id.)

         To support his allegations, Plaintiff proffers medical records from his DPS file. (See Docket Entry 26 at 1-2; see also id. at 9-11.) Specifically, Plaintiff presents two pages of DPS Provider Progress Notes (id. at 9-10) as well as Dr. Tharrington's report regarding the ultrasound (id. at 11). Written by P.A. Kurian, the first page of Provider Progress Notes contains entries Dated: 11:30 and 17:30 on February 21, 2013. (See id. at 9.) The latter entry states:

[Plaintiff] had ultrasound of his scrotum this afternoon and found to have led [sic] to no blood supply to his [right] testicle. His-surgeon at UNC was emergently contacted [Defendant]. I talked to [Defendant] and he said that they were aware that the blood supply to the [right] testicle was diminished and there was a good chance that [Plaintiff] may loose [sic] the [right] testicle. In light of cirrhosis this was explained to [Plaintiff]. [Defendant] said there was no need to surgically remove the testicle and said testicle will atrophy. Since [Plaintiff] is not ...

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