United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
MATTER comes before the Court on Plaintiff's
Motion for Default Judgment, (Doc. No. 92), and Defendant
Anthony Searles' Motion for Summary Judgment, (Doc. No.
95), and Defendants Belquis Hopkins and David Mitchell's
Motion for Summary Judgment, (Doc. No. 104).
se Plaintiff's Amended Complaint passed initial
review on claims that he received deliberately indifferent
medical treatment at the Lanesboro Correctional Institution
against Nurse Supervisor Belquis Hopkins, Doctor Anthony
Searles, and Superintendent David Mitchell. Presently pending
are Plaintiff's Motion for Default Judgment, and Motions
for Summary Judgment filed by Defendants Searles, Hopkins,
Amended Complaint (Doc. No. 39)
Plaintiff alleges in his unverified Amended Complaint that
Nurse Hopkins willfully and deliberately denied
Plaintiff's sick call requests for three months at a time
for his prostate and bladder problems. He also suffers pain
from a deteriorated disc in his lower back. He repeatedly
wrote requests to Nurse Hopkins asking why he was not being
seen. He suffered bad pain from January, 2015, to April,
2016. Nurse Hopkins and Dr. Searles knew about
Plaintiff's ailments and pain because they are included
in his medical records, and because of his multiple requests
to medical and sick call. Plaintiff did not see Dr. Searles
once in over a year to treat his many ailments and maladies.
Dr. Searles' failure to treat Plaintiff resulted in pain
and worsening of his conditions. Superintendent Mitchell was
made aware of the denial and delay of treatment, which are in
violation of sick call policy, and did nothing.
Superintendent Mitchell and Nurse Hopkins have the authority
to expedite but they did nothing even though they knew his
conditions would worsen, which came to pass. Plaintiff seeks
punitive and compensatory damages.
Plaintiff's Motion for Default Judgment
(Doc. No. 92)
filed a “Motion for Default Judgment” dated
October 29, 2018 that was docketed on November 1, 2018,
alleging that the summons for Defendant Hopkins was served in
August 2018 and she failed to file an Answer within 60 days.
Motions for Summary Judgment
Defendant Searles (Doc. No. 95)
Anthony Searles argues that he was not deliberately
indifferent to a serious medical need. Searles evaluated
Plaintiff's medical chart on the single occasion when he
reviewed it, prescribed appropriate treatment addressing the
reason for the chart referral, exercised his medical judgment
to address Plaintiff's subjective complaint of back pain,
and did not knowingly violate any of Plaintiff's
constitutional rights or knowingly deprive him of any
necessary medical care. Dr. Searles also argues that he is
entitled to qualified immunity because no constitutional
right was violated and Dr. Searles' conduct was
reasonable. To the extent that Plaintiff attempts to sue Dr.
Searles in his official capacity, his claims for money
damages are barred by sovereign immunity.
is not entitled to punitive damages against Dr. Searles in
his individual capacity because Plaintiff has failed to set
forth any factual allegations to support a finding that Dr.
Searles acted with evil motive or intent
Defendants Hopkins and Mitchell (Doc. No.
Hopkins and Mitchell argue that Plaintiff cannot allege facts
sufficient to prove that they were deliberately indifferent
to Plaintiff's medical needs.
Mitchell argues that he, as correctional staff, had no
involvement in Plaintiff's medical care, did not have any
training on appropriate medical treatment for patients, had
no ability to control or alter his plan of care, and had no
control over the scheduling of patients' medical
appointments. As Superintendent, Defendant Mitchell's
responsibilities include administrative, but not clinical,
supervision of health-related operations at the facility.
Defendant Mitchell made sure sick call and emergency policies
were followed and he was not made aware of any problems with
the sick call process and believed that it operated correctly
and that care was properly provided to all inmates including
Plaintiff. Defendant Mitchell does not recall any complaints
from Plaintiff directly to him, and no complaint that his
care was delayed for three months. Defendant Hopkins, who is
a board-certified registered nurse, reviewed Plaintiff's
medical records for the period in question. Those records do
not reflect, and she has no memory of, seeing Plaintiff as a
patient where she was the only or primary treating nurse.
Defendant Hopkins denies that she did anything to delay or
impede Plaintiff's ability to use the sick call process.
Contrary to Plaintiff's apparent belief, Defendant
Hopkins was not the Nurse Supervisor and had no control over
the sick call process.
Plaintiff cannot credibly forecast or prove that his
condition worsened as a result of any delay in treatment.
claims against Defendants Hopkins and Mitchell in their
official capacities should be dismissed as barred by
immunity shields Defendants from Plaintiff's monetary
damages claims in their individual capacities because they
had no direct involvement in Plaintiff's medical
treatment and did not violate any of Plaintiff's clearly
was informed of the importance of responding to
Defendants' Motions as well as the legal standard
applicable to summary judgment motions. See (Doc.
Nos. 99, 107).
Defendant Searles (Doc. No. 100)
unverified response in opposition to Defendant Searles'
Motion for Summary Judgment, Plaintiff argues that Defendant
Searles was deliberately indifferent to his serious medical
needs and is not entitled to qualified immunity. Plaintiff
appears to argue that the grievances he mailed with the
Complaint demonstrate Defendant Searles' deliberate
indifference. He claims that Defendant Searles was his
primary care physician and that Searles has not come forward
with any evidence to the contrary. Defendant Searles never
saw him face-to-face before prescribing Mobic to which
Plaintiff is allergic and that is not for use in elderly
patients. Plaintiff claims that no discovery was given to him
despite his requests. Defendant Searles has admitted the
existence of a five-month backlog to be seen on sick call and
that, by the time a doctor is seen, all the ailments had
worsened. He claims that an x-ray taken at Maury C.I. will
show “what Dr. Searles should have done” as
Plaintiff requested on a sick-call. (Doc. No. 100 at 3). He
claims that Dr. Searles did not ask about Plaintiff's
back disk and severe pain and just prescribed a bad medicine.
He further claims that Defendant has not sent all the sick
calls with the exhibits and therefore the Court does not know
if Plaintiff did file about other ailments. He argues that
qualified immunity should be denied because Defendant Searles
willfully and knowingly violated Plaintiff's rights and
knew he was breaking the law. In addition, he appears to
claim that Defendant Searles is attempting to hide the
Standard Operating Procedure and Medical Policy. Plaintiff
claims that his list of health complains are chronic and did
exist in 2015 at Lanesboro.
Defendants Hopkins and Mitchell (Doc. No.
unverified response in opposition to Defendants Hopkins and
Mitchell's Motion for Summary Judgment Plaintiff argues
that Hopkins is the Lead Nurse who is responsible for the day
to day operations of the nurses and is misleading the Court.
The fact that Hopkins does not do sick calls and answered
grievances shows she is a lead nurse, and she lied about not
having control over the sick call process. Defendant
Mitchell's statement that he has never been the subject
of a grievance by McClary is refuted by the November 19, 2015
grievance in which it was made known to Mitchell that
Plaintiff was not receiving medical care. He cites to seven
sick calls in which he was “not seen” as proof
that Hopkins is lying about Plaintiff regularly receiving
treatment: August 1, 2015, September 15, 2015, September 23,
2015, October 26, 2015, April 1, 2016, and April 22, 2016.
(Doc. No. 108 at 3). He claims that, if he had refused to go
to sick call, this would have been stated on the records.
Plaintiff claims that Defendants try to prejudice him by
sending write-ups of infractions and other complaints so that
the Court will punish Plaintiff for his infractions and other
actions, which are irrelevant. Plaintiff argues that his
complaints have worsened and, even if they did not, he would
not be precluded from obtaining relief. Grievances show that
Defendants Hopkins and Mitchell were made aware that
Plaintiff was not receiving treatment and that they ignored
his grievances and letters. Plaintiff claims that the record
proves he has the following conditions: high blood pressure
for which he receives a special diet, enlarged prostate,
bladder problems, deteriorated back disk, GERD, and h-pylori.
Searles (Doc. No. 101)
Searles argues that, if Plaintiff had an allergy to any
medication on January 24, 2015, Searles was unaware of it at
the time he prescribed treatment for Plaintiff's
complaint of back pain. The Provider Orders page on which
Defendant Searles wrote his order for Mobic lists “NKA,
” or no known allergies. (Doc. No. 101 at 2). If
Plaintiff had been prescribed Mobic in the past and had an
adverse reaction, it was not noted in the chart where
allergies should have been listed. Plaintiff offers no
evidence that he was allergic to Mobic or that Defendant
Searles knew of any such allergy at the time he prescribed
it. Plaintiff cannot establish that Defendant Searles
subjectively knew of Plaintiff's alleged allergy at the
time and cannot satisfy the deliberate indifference standard.
alleges that no discovery was allowed in spite of his
request, however, Plaintiff did not propound discovery to
Defendant Searles during the discovery period and the time to
do so has elapsed. Moreover, all of the pertinent medical
records have been provided to Plaintiff via Defendant
Searles' Motion for Summary Judgment.
Defendant Searles notes that he is not asserting as an
affirmative defense that Plaintiff failed to exhaust
administrative remedies. Therefore, there was no reason to
provide Plaintiff with copies of his grievances or an
affidavit from the Executive Director of the North Carolina
Inmate Grievance Resolution Board.
Hopkins and Mitchell (Doc. No. 111)
regards to Plaintiff's claim that Defendant Hopkins is a
Lead Nurse, Defendant Hopkins filed a supplemental
declaration explaining that she was a Lead Nurse for a period
of about five months, during part of which, she was assigned
to Brown Creek C.I. rather than Lanesboro C.I. where
Plaintiff was housed. During that short period of time she
did have some supervisory duties, but as Lead Nurse, rather
than Nurse Supervisor, she did not have responsibility for
the sick call procedures or overall responsibility for the
nurses at Lanesboro. Further, no nurse other than a nurse
practitioner can determine a course of treatment or prescribe
medication. Defendant Hopkins denied that she has withheld or
failed to provide any prescribed treatment. Plaintiff's
assertions that he was not seen on several dates when he
sought sick calls are misleading or inaccurate. Defendants
note that the sick call date is not necessarily the date upon
which an inmate is seen for care, so the claim, for instance,
that he was not “seen” on August 1, 2015, is
misleading because he was seen on August 4, 2015. Therefore,
the timeline that Plaintiff provided cannot be viewed as an
indication of deliberate indifference by any person.
Defendants argue that the complaints that Plaintiff described
are part of the routine discomfort of prison life and that
his medical needs are not being deliberately ignored by
anyone, much less Defendants Hopkins and Mitchell.
Affidavits of Anthony Searles, M.D. (Doc.
Nos. 97, 101-1)
Searles is a medical doctor and licensed physician who worked
during the relevant times as an independent contractor with
NCDPS and its predecessor, NCDOC.
was housed at Lanesboro C.I. from January 1, 2015, through
April 27, 2016, when he was transferred to Maury C.I.
Defendant Searles reviewed Plaintiff's chart on one
single occasion during the applicable time period in January
2015, which was the only occasion on which Plaintiff's
chart was referred to him for review. During the applicable
period, Plaintiff was never referred to Searles for treatment
NCDPS, to obtain an appointment in a medical clinic without a
regularly scheduled follow-up appointment, an inmate first
submits a sick call request which is triaged by a nurse who
refers an inmate to another healthcare professional, if
necessary. The nurse is responsible for scheduling the
inmate's appointments with a physician or physician
extender. Defendant Searles does not supervise nurses in
performance of their sick call appointment responsibilities.
Searles was asked by NCDPS to assist medical staff at
Lanesboro in conducting chart reviews of inmates who had been
referred to a camp provider by nursing staff. In January
2015, Searles began conducting chart reviews of inmate charts
on the weekend at Lanesboro. He did not see the inmates in
person as part of the chart review. If an inmate needed to be
seen, he would be scheduled for an in-person appointment with
a camp physician or physician assistant/ nurse practitioner
when a camp provider was available. Searles did not see
Plaintiff as a medical provider in the clinic during the
applicable time period, nor was he referred to Searles for an
in-person appointment at the clinic. Instead, Plaintiff was
consistently seen by another Lanesboro physician, Dr. Gregory
January 24, 2015, Searles conducted a review of
Plaintiff's sick call appointment notes in connection
with a nurse's referral of his chart for a complaint of
back pain from a January 13, 2015 sick call appointment. The
portion of the chart that was sent for Searles' review
was specifically tagged by the nurse. Back pain was the only
issue for which Plaintiff's chart was referred to
Searles. Based on Searles' review of the January 13, 2015
sick call appointment note regarding back pain, Searles
entered an order for Plaintiff to take 7.5 mg of Mobic, a
non-steroidal anti-inflammatory medication twice a day with
food for 30 days to treat his complaints of back pain.
Plaintiff did not complain of any bladder or prostate-related
complaints during the January 13, 2015 sick call appointment,
and the nurse did not note any such complaints, and no such
complaints were referred to Searles for consideration,
evaluation, or treatment.
January 24, 2015 when Searles completed his chart review and
April 27, 2016 when Plaintiff was transferred to Maury C.I.,
neither Plaintiff nor his chart were referred for
Searles' review, assessment, or treatment. Nor was
Plaintiff ever scheduled for an in-person assessment or
appointment with Searles in the medical clinic. Plaintiff was
instead assessed and treated by Lanesboro nursing staff and
Lanesboro Camp Physician Dr. Haynes on numerous occasions,
Central Prison Urologist Dr. Gregory Janda on one occasion,
N.P. Veronica Southerland on three occasions, and Dr.
Clarence Ellis on one occasion.
had no involvement with Plaintiff after he was transferred to
Maury C.I. on April 27, 2016. At no time did Searles
disregard symptoms contained in the single sick call
appointment notes he reviewed pertaining to Plaintiff's
back pain. Searles took appropriate action and made
professional decisions and prescribed medication based on
Plaintiff's complaint of back pain as documented by him
and the sick call appointment nurse. None of Searles'
actions or decisions was taken for the purpose of causing
harm to Plaintiff.
Searles filed a Supplemental Affidavit explaining that the
Provider Orders page on which Defendant Searles wrote his
order for Mobic lists “NKA, ” or no known
allergies, and explains that Geodon is an antipsychotic
medication, and, that if Plaintiff is allergic to that
medication Defendant Searles was unaware of that allergy and
in any event he did not prescribe Geodon for Plaintiff. (Doc.
No. 101 at 2).
Plaintiff's Declaration (Doc. No.
states that he had a “bad side effect” from
medication Geodon in 2010 and that it has been in his medical
record since that time. (Doc. No. 102-1 at 1). The medication
that Defendant Searles prescribed in 2015, Mobic, notes in
its list of side effects that it is not to be given to the
elderly. Defendant Searles never saw Plaintiff
face-to-face or prescribed another medication after realizing
that Plaintiff could not take Mobic for his painful back. Nor
did Defendant Searles treat Plaintiff's other ailments
that were raised in sick calls. Plaintiff did not see
Defendant Searles in person for the entire time Plaintiff was
at Lanesboro in 2015 and 2016. Plaintiff claims that policy
requires a doctor is to see a inmate face to face and counsel
when prescribing a new medication and that Defendant Searles
failed to do this. Plaintiff suffered intense pain for months
because he had no medication for his back.
Declarations of Belquis Hopkins (Doc. Nos.
Declaration, Defendant Hopkins states that she is a
board-certified registered nurse and worked at Lanesboro C.I.
at the relevant times. Hopkins' responsibilities as Nurse
include: “administering medication, taking vital signs,
performing initial examination of patients, referring
patients to other healthcare providers, delivering care as
directed by orders of physicians, physicians extenders, and
nurse practitioners, and assisting in other capacities as
needed.” (Doc. No. 106-1 at 2). Hopkins is not, and has
never been, a nurse supervisor. (Doc. No. 106-1 at 3).
Hopkins reviewed Plaintiff's medical records between
December 12, 2014 and April 27, 2016, and concluded that
Plaintiff regularly sought, and received, medical treatment
using the sick call procedure at Lanesboro. (Doc. No. 106-1
at 4). Hopkins' review of the records confirms what she
remembers - that she “did not see Offender McClary in a
clinical setting” and “was never his primary,
triage, or treating nurse.” (Doc. No. 106-1 at 4).
Hopkins did not do anything to impede Plaintiff's access
to medical care or the ability to use the sick call
procedure. Hopkins denies having any supervisory role over
the sick call process or the care, treatment, and referrals
to other healthcare providers made or provided by other
nurses. Despite having no supervisory role, Hopkins sees no
evidence from her review of the medical records to support
that Plaintiff was not provided the level of care staff
deemed medically necessary to address his complaints. The
record indicates that Plaintiff was referred to physicians
and physician extenders on a regular basis. Hopkins does not
believe from her review of the records that there is any
indication that Plaintiff's medical needs were denied or
conditions of which Plaintiff complains - urological problems
and back pain - are “chronic or potentially
chronic.” (Doc. No. 106-1 at 4). Urological problems
are chronic and “will not get better.”
(Id.). Back pain is “potentially
chronic” and could become a condition that could be
recurring or chronic. (Id.). However, even without
any treatment, it could become better. The primary treatment
for both of these conditions is symptom management.
“With both of these conditions, delay in treatment does
not make the underlying condition worse.” (Doc. No.
106-1 at 5). From her review of the records, Hopkins does not
see evidence of delay or that either of the conditions
worsened appreciably over time.
Nurses are not able to prescribe medication, conduct invasive
examinations or treatments, conduct specialized urological
examinations or treatment, or order or schedule treatment
from a specialist such as a urologist. (Doc. No. 106-1 at 5).
does not have any control over, or input with respect to, the
decision-making process of the Utilization Review
(“UR”) Board, which has to approve
doctor-recommended specialty appointments follow-up
appointments with outside providers. Nor does Hopkins have
any control over the timing of follow-up appointments and
surgical procedures that have to be approved by UR.
reviewing the medical records, Hopkins is unaware of any
healthcare provider, including nurses, who were deliberately
indifferent to Plaintiff's medical needs, or
intentionally delayed or failed to distribute treatment or
prescription medication. All of his complaints and grievances
regarding medical care were investigated pursuant to NCDPS
policy and procedures; his sick call requests and complaints
were not ignored.
denies that she was deliberately indifferent. She was never
his treating nurse and did nothing to delay his treatment. To