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Sholtz v. Stroupe

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

August 14, 2019

JOE L. SHOLTZ, Plaintiff,
v.
APRIL STROUPE, et al., Defendants.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.

         THIS 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].

         I. BACKGROUND

         A. Procedural Background

         Pro se 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.[1] 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.

         On 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.[2][Docs. 26-2; 26-3; 26-4; 35-1 through 35-6].

         On 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 advised that:

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.

         The 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].

         B. Factual Background

         The Defendant's forecast of evidence shows the following:

         The 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].

         When 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[3] 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 cal[4] 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].

         Stroupe 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.[5] [Id. at 37].

         The 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].

         On 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].

         Just 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.

         [Doc. 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 21].

         On 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].

         On May 4, 2017, the Plaintiff was examined again by P.A. Dodd. P.A. Dodd noted:

[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 somewhat.

         [Doc. 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 ...


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