United States District Court, W.D. North Carolina, Asheville Division
JOE L. SHOLTZ, Plaintiff,
APRIL STROUPE, et al., Defendants.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant April
Stroupe's Motion for Summary Judgment [Doc. 25] and
Plaintiff Joe L. Sholtz's Motion for Summary Judgment and
Motion to Add Colby Dodd as a Defendant [Doc. 36].
Plaintiff Joe Sholtz is a North Carolina prisoner currently
incarcerated at the Federal Medical Center in Butner, North
Carolina. Plaintiff filed this action on September 20, 2017,
under 42 U.S.C. § 1983, and an Amended Complaint on
January 16, 2018. Plaintiff named as Defendant April Stroupe,
identified as a nurse employed by Southeast Correctional
Medical Group, and working at the Buncombe County Detention
Center (the “Jail”) at all relevant
times. The Plaintiff claims that Defendant
Stroupe was deliberately indifferent to his serious medical
needs based on Stroupe's failure to provide him with
proper medical care related to treatment of his throat cancer
while Plaintiff was incarcerated as a pre-trial detainee at
the Jail in 2017 in violation of the Eighth Amendment.
Plaintiff seeks monetary damages and court costs.
November 13, 2018, Defendant Stroupe filed her pending
summary judgment motion. [Doc. 25]. In support of her summary
judgment motion, Defendant Stroupe has filed her own
Affidavit, the Plaintiff's medical intake screening
records, the SECMG's Chronic Disease Services Policy, the
Plaintiff's medical records from the Jail, the
Plaintiff's medical records from outside care providers,
and the Jail's pharmacy service's medication storage
and disposition policies.[Docs. 26-2; 26-3; 26-4; 35-1 through
November 20, 2018, this Court entered an order in accordance
with Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), advising Plaintiff of the requirements for filing a
response to the summary judgment motions and of the manner in
which evidence could be submitted to the Court. [Doc. 29].
The Plaintiff was specifically advised that if he had any
evidence to offer to show that there is a genuine issue for
trial, he must present it to the Court “in a form which
would otherwise be admissible at trial, i.e., in the form of
affidavits or unsworn declarations.” The Court further
An affidavit is a written statement under oath; that is, a
statement prepared in writing and sworn before a notary
public. An unsworn statement, made and signed under the
penalty of perjury, may also be submitted. Affidavits or
statements must be presented by Plaintiff to this Court no
later than fourteen (14) days from the date of this Order and
must be filed in duplicate.
Plaintiff filed a response to Defendant's summary
judgment motion, which consists of a “Statement of
Facts.” Attached thereto are various select pages of
Plaintiff's medical records, various kiosk records, and
Defendant's discovery responses. [Docs. 30, 30-1]. The
Plaintiff submitted no affidavits and no statements signed
under the penalty of perjury in response to the
Defendant's summary judgment materials. [See id.]. On
February 4, 2019, the Plaintiff filed his own summary
judgment motion. [Doc. 36]. In this motion, the Plaintiff
purports to now seek $250, 000 in punitive damages and $450,
000 in damages for emotional distress. [Doc. 36 at 1]. Also,
in this summary judgment motion, the Plaintiff moves to amend
his complaint to add Colby Dodd as a Defendant in this
matter. Mr. Dodd is a physician's assistant (P.A.) who
also provided care to the Plaintiff at the Jail. [Doc. 36 at
2]. The Plaintiff, however, submitted no admissible evidence
in support of his summary judgment motion. [See Doc. 36].
Defendant's forecast of evidence shows the following:
Jail contracts with Southeast Correctional Medical Group
(SECMG) to provide clinical medical services for inmates.
[Id. at ¶ 2]. Defendant April Stroupe is a
licensed nurse practitioner and was employed by the SECMG as
the Clinical Site Coordinator at the Jail at all relevant
times. [Doc. 26-2 at ¶ 3].
the Plaintiff arrived at the Jail on March 30, 2017 on
transfer from his previous place of incarceration in
Tennessee, he had just recently completed a ten-week course
of chemotherapy and radiation treatment for stage IV
tonsillar cancer only two weeks before. [Doc. 35-1 at 29,
27]. The Plaintiff was booked at the Jail at 12:21 p.m. on
March 30, 2017. [Doc. 35-1 at 29]. The Plaintiff's
medical intake screening was conducted only an hour later at
1:30 p.m. by Tina Miller, LPN. [Id.]. The intake
record shows that, as a result of his recent cancer
treatment, the Plaintiff has residual blisters and scabs in
his throat; red, swollen gums; and a swollen tongue and left
side of his face. [Id.]. The intake record also
showed that Plaintiff had a G-tube placed in December 2016 and
that he was prescribed “magic mouthwash po one teaspoon
q 6 hours prn, ” meaning one teaspoon of magic
mouthwash by mouth every six hours as needed, in addition to
several other medications. [Id.]. The records also
note that Plaintiff “takes 2 cans of 1.5
0500 10 am 1400 and 1900” through his G-tube.
[Id.]. Other records show that the Plaintiff had had
left ear pain ever since being diagnosed with cancer in
December 2016. [Doc. 35-1 at 13].
was involved in the Plaintiff's throat cancer treatment
while he was incarcerated at the Jail. [Id. at
¶ 5]. On the day of the Plaintiff's intake,
Defendant Stroupe completed a medical request for the
Plaintiff's special care needs. [Doc. 35-1 at 37]. The
request lists the Plaintiff's needs as including, among
other things, “Magic mouth wash 1 tsp twice daily. (As
needed).” [Id. at 37]. This request by Stroupe
does not reflect the dosage of magic mouthwash listed in
Plaintiff's intake record. Namely, the Plaintiff's
intake record notes a need for the mouthwash every six hours,
as needed. [Id. at 29]. Whereas, the medical request
notes that he needs the mouthwash twice daily, or every 12
hours. [Id. at 37].
Plaintiff was examined by Colby Dodd, P.A. (“P.A.
Dodd”), the next day on March 21, 2017. P.A. Dodd noted
that the Plaintiff had been diagnosed six to seven months ago
with throat cancer while incarcerated at another facility. He
further noted that the Plaintiff had been having ongoing
headaches and ear pain that lead to the discovery of a large
mass over the left region of his throat. The Plaintiff
underwent ten weeks of radiation and chemotherapy, which had
recently been completed two weeks ago. [Doc. 35-1 at 26].
P.A. Dodd ordered, among other things, that Plaintiff use
“Magic mouth wash BID [twice daily]” and
requested that the medical records from Plaintiff's
oncologist be obtained. [Doc. 35-1 at 27].
April 11, 2017, the Plaintiff was seen by P.A. Dodd
complaining of increased pain and a feeling of
“rawness” in his mouth, tongue, and throat,
despite the use of magic mouthwash. [Doc. 35-1 at 25]. P.A.
Dodd noted that this pain and “rawness” was
secondary to recent radiation treatment. [Id. at
25]. P.A. Dodd ordered that the Plaintiff's magic
mouthwash be increased to every four or six hours,
“which ever is available.” [Id. at 25].
three days later, on April 14, 2017, the Plaintiff was seen
by Charlene Parker, RN, for a sick call and complained that
the mouthwash was not helping his pain, which was keeping him
from sleeping. [Doc. 35-1 at 23]. At this visit, the
Plaintiff advised Nurse Parker that the mouthwash he had been
taking in Tennessee was clear and much more effective in
soothing his throat. [Id.]. The Plaintiff reported
that his throat was very sore, raw, and felt as though
something might be stuck in it. [Id.]. The Plaintiff
also told Nurse Parker that Belew Pharmacy in Tennessee
supplied the Plaintiff's mouthwash at his previous place
of incarceration. [Id.]. In response to this visit
with the Plaintiff, Nurse Parker noted that she:
Called Belew Pharmacy in Knoxville, TN, to get Magic
Mouthwash formula pt. had been receiving there. Pharmacist
states the ingredients were equal parts (60 ml each) of: 2%
Viscous Lidocaine, Diphenhydramine 12.5 mg/ml, Dexamethasone
0.5 mg/ml, and Glycerin (to equal one 240 cc bottle). Shared
this info with April Stroupe, LPN, CSC. Called Diamond
pharmacy and gave this list of meds to Chris who also called
and verified the compound with Belew Pharmacy in Knoxville,
TN. New Magic Mouthwash with medications previously mentioned
above, was created in the available med list in Sapphire for
ordering, is being compounded for pt. today and is scheduled
for delivery here tomorrow, 4/15/17. Pt. may keep this
medication in his cell and use 1 teaspoon every 4-6 hours PRN
for throat discomfort.
35-1 at 23]. The Plaintiff's records then note that, on
April 26, 2017, the patient complained of increased throat
pain and that his throat appeared red and raw. This record
reflects that the patient was scheduled to see his oncologist
later in the week and that P.A. Dodd approved an increase in
Plaintiff's pain medication, Oxycodone. [Id. at
April 27, 2017, the Plaintiff had a new patient appointment
with oncologist, Martin Palmeri, M.D., of Cancer Care of WNC.
At this visit, the Plaintiff complained of mouth pain and
told Dr. Palmeri that he had been using the magic mouthwash
intermittently, but that it did not seem to be helping. [Doc.
35-1 at 69]. In the note for this visit, Dr. Palmeri
prescribed the Plaintiff 5 ml of magic mouthwash four times
daily. This is, of course, equivalent to 10 ml twice daily.
Dr. Palmeri also noted that the Plaintiff was “having
increased difficulty swallowing and mouth pain, particularly
in the setting of what appears to be an enlarging lesion in
the base of the left tongue. I would recommend further workup
and evaluation.” Dr. Palmeri states, “I plan to
refer him to ENT [ear, nose, and throat] for direct
laryngoscopy and biopsy.” Dr. Palmeri also noted that
he plans to repeat a PET scan of the Plaintiff's entire
body prior to the Plaintiff's follow up with Dr. Palmeri.
[Id. at 66].
4, 2017, the Plaintiff was examined again by P.A. Dodd. P.A.
[Plaintiff] presnts [sic] for f/u visit to evaluate
nightingale oral mucosal pain secondary to radiation burns.
Notes Magic Mouth wash is helping, however he is not getting
it as often as he needs. He is using it every 4-6 hrs and
apparently running out within a few days. He recently went
for an initial consult with Avl Oncology, where not much was
established apparently [as a result of] them not having his
previous medical records. A f/u appointment was made for 2-3
weeks. He notes increased pain and swelling with food and
liquid intake and that it is very painful to eat. We started
him on Oxycodone for pain management which seems to help
35-1 at 20 (emphasis added)]. P.A. Dodd diagnosed Plaintiff
with an oral radiation burn and noted that he would
“attempt to increase frequency of Magic mouth wash,
possibly compounding our own here in the clinic for him with
Lidocaine 2% viscous, Malox, and Benadryl.” [Doc. 35-1
at 20]. There is no evidence, however, that anyone from
SECMG, including Defendant Stroupe, ever compounded the magic
mouthwash for the Plaintiff at the Jail. A few days later, on
May 9, 2017, a note in the Plaintiff's chart, recorded by
Defendant Stroupe, states “[p]er Colby Dodd, PA-C
Oxycodone [d]iscontinued due to patient holding ...