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McClary v. Hopkins

United States District Court, W.D. North Carolina, Charlotte Division

May 3, 2019

RONALD McCLARY, Plaintiff,
v.
BELQUIS HOPKINS, et al., Defendants.

          ORDER

          Frank D. Whitney, Chief United States District Judge

         THIS 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).

         I. BACKGROUND

         Pro 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, and Mitchell.

         (1) 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.

         (2) Plaintiff's Motion for Default Judgment (Doc. No. 92)

         Plaintiff 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.

         (3) Motions for Summary Judgment

         (A) Defendant Searles (Doc. No. 95)

         Dr. 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.

         Plaintiff 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

         (B) Defendants Hopkins and Mitchell (Doc. No. 104)

         Defendants Hopkins and Mitchell argue that Plaintiff cannot allege facts sufficient to prove that they were deliberately indifferent to Plaintiff's medical needs.

         Defendant 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.

         Further, Plaintiff cannot credibly forecast or prove that his condition worsened as a result of any delay in treatment.

         Plaintiff's claims against Defendants Hopkins and Mitchell in their official capacities should be dismissed as barred by sovereign immunity.

         Qualified 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 established rights.

         (4) Plaintiff's Responses

         Plaintiff 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).

         (A) Defendant Searles (Doc. No. 100)

         In his 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.

         (B) Defendants Hopkins and Mitchell (Doc. No. 108)

         In his 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.

         (4) Defendants' Replies

         (A) Searles (Doc. No. 101)

         Defendant 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.

         Plaintiff 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.

         Finally, 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.

         (B) Hopkins and Mitchell (Doc. No. 111)

         With 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.

         (5) Evidence[1]

         (A) Affidavits of Anthony Searles, M.D. (Doc. Nos. 97, 101-1)

         Defendant Searles is a medical doctor and licensed physician who worked during the relevant times as an independent contractor with NCDPS and its predecessor, NCDOC.

         Plaintiff 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 in person.

         In 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.

         Defendant 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 Haynes.

         On 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.

         Between 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.

         Searles 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.

         Defendant 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).

         (B) Plaintiff's Declaration (Doc. No. 102-1)

         Plaintiff 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.[2] 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.

         (C) Declarations of Belquis Hopkins (Doc. Nos. 106-1, 111-1)

         In her 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).

         Defendant 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 even delayed.

         The two 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.

         Registered 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).

         Hopkins 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.

         After 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.

         Hopkins denies that she was deliberately indifferent. She was never his treating nurse and did nothing to delay his treatment. To Hopkins' ...


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