United States District Court, E.D. North Carolina, Western Division
ISAAC H. OLIVER, Plaintiff,
FAYE DANIELS, Superintendent; LAUREN HARRELL, Asst. Superintendent of Programs; DR. RICHARD O. BROADWELL, III; and ALICE MUSSARI, Supervising Nurse,  Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter now comes before the court on defendant Dr. Richard O.
Broadwell, III's (“Broadwell”) motion for
summary judgment (DE 64), plaintiff's motion to dismiss
his claims against Nurse Alice Mussari
(“Mussari”) (DE 73), and a motion for summary
judgment filed by defendants Mussari, Superintendent Fay
Daniels (“Daniels”), and Assistant Superintendent
Lauren Harrell (“Harrell”) (DE 82). The issues
raised have been briefed fully and are ripe for adjudication.
For the following reasons, defendants' motions are
granted and plaintiff's motion is denied.
OF THE CASE
2, 2016, plaintiff, a state inmate, filed this civil rights
action pro se pursuant to 42 U.S.C. § 1983,
asserting claims for deliberate indifference to medical needs
and cruel and unusual punishment related to severe back and
hip pain plaintiff experienced at Pamlico Correctional
Institution (“Pamlico”) beginning in July 2013.
The court denied initial motions for a temporary restraining
order and for appointment of counsel. Plaintiff filed amended
complaint on January 3, 2017. On January 26, 2017, the court
conducted its initial review, dismissed plaintiff's
claims against the Jane and John Doe defendants without
prejudice, and continued management of plaintiff's
deliberate indifference claims against the other defendants.
On June 27, 2017, the court also dismissed former defendant
Barbara Messer without prejudice. On March 26, 2018, the
court granted defendant Broadwell's motion to dismiss as
to plaintiff's official capacity claims but denied the
motion as to defendant Broadwell's alleged deliberate
indifference and claim of qualified immunity.
November 26, 2018, defendant Broadwell filed the instant
motion for summary judgment and attached a memorandum in
support, a statement of material facts citing to publically
available records and record evidence, an appendix to the
statement of material facts including defendant
Broadwell's affidavit, and plaintiff's medical
records. On January 7, 2019, plaintiff filed the instant
motion to dismiss defendant Mussari as a defendant in this
action, a response in opposition to defendant Broadwell's
motion for summary judgment, and a statement of material
facts that includes plaintiff's affidavit and various
exhibits including medical records. On January 28, 2019,
defendant Broadwell filed a reply and a response to
plaintiff's statement of material facts.
February 8, 2019, defendants Daniels, Harrell, and Mussari
filed the instant motion for summary judgment, a memorandum
in support, a statement of material facts, an appendix to the
statement of material facts including affidavits of Daniels,
Harrell, and Mussari, and sealed exhibits comprising medical
records and inmate request forms.
March 11, 2019, plaintiff filed a sur-reply to defendant
Broadwell's response to plaintiff's statement of
April 8, 2019, plaintiff filed a response in opposition to
the motion for summary judgment filed by defendants Daniels,
Harrell, and Mussari, relying upon the following: an
opposition to these defendants' statement of material
facts, and an appendix containing inmate grievances, as well
as declarations of plaintiff and plaintiff's mother.
April 22, 2019, defendants Daniels, Harrell, and Mussari
filed a reply and, on May 6, 2019, plaintiff filed a
OF THE FACTS
2013, plaintiff noted a bulge protruding from his lower back
and hip. (Am. Compl. (DE 17) ¶11). In a subsequent
grievance, plaintiff stated it was the “same back
injury [he] sustained working out.” (See C o m
p l . A t t a c h (D E 1 - 1) a t 2) . O n J u l y 22,
2013, plaintiff submitted a sick-call request complaining of
“severe back and hip pain” and requesting an MRI.
(Am. Compl. (DE 17) ¶11; Broadwell Aff. (DE 67-1)
¶7; Broadwell Ex. 3 (DE 68-3) (July 22, 2013, sick-call
31, 2013, defendant Mussari examined plaintiff, recorded
complaints of flank pain and a mass in his hip area, and
noted his history of degenerative disc disease and a prior
Utilization Review (“UR”) Board approval for
orthotic shoes after ineffective surgery for bilateral hammer
toes. (Broadwell Ex. 3 (DE 68-3)). Defendant Mussari referred
plaintiff's chart to defendant Broadwell, a licensed
physician, for review. (Broadwell Aff. (DE 67-1) at
¶¶3-4, 7; Am. Compl. (DE 17) ¶11)).
August 1, 2013, defendant Broadwell reviewed plaintiff's
chart, scheduled a physician's clinic appointment, and
ordered a urinalysis and complete blood count to rule out a
urinary tract infection as a potential cause of
plaintiff's back pain. (See Broadwell Aff. (DE
August 15, 2013, defendant Broadwell examined plaintiff for
back and hip pain, noted tenderness on palpation of the right
paraspinal muscles, observed a flexion deformity on
plaintiff's left second toe, and noted a November 29,
2012, x-ray revealing degenerative disc
disease. (Id. at ¶9; Broadwell Ex. 5
(DE 68-5) (progress note dated August 15, 2013)). Defendant
Broadwell: noted plaintiff denied symptoms indicative of
neuropathy or neurologic impairment; observed plaintiff's
recent weightlifting and heavily muscled frame were
inconsistent with plaintiff's reported history; and,
because plaintiff was seeking pain medication, noted
plaintiff's history of drug abuse. (Broadwell Aff. (DE
67-1) ¶9). Defendant Broadwell assessed plaintiff with:
non-specific chronic lower back pain and deformity of the
left second toe. (Id.). Defendant Broadwell referred
plaintiff for a podiatry consultation,  ordered tests to
check for underlying infections or inflammatory conditions,
ordered an x-ray for the right hip. (Id.). Defendant
Broadwell also wrote plaintiff a six-month prescription for
Naprosyn, a non-steroidal anti-inflammatory pain
medication. (Id.; Broadwell Ex. 4 (DE 68-4)).
August 22, 2013, x-ray report for plaintiff's right hip
revealed a “soft tissue calcific body” near the
greater trocahanter, possibly as a result of prior
soft-tissue damage. (Broadwell Ex. 6 (DE 68-6). After
reviewing the radiologist's report and the x-ray,
defendant Broadwell determined that no orthopedic
consultation was required. (Broadwell Aff. (DE 67-1) ¶10).
September 3, 2013, sick-call request for hip pain, (Broadwell
Ex. 7 (DE 68-7)), defendant Mussari referred the complaint to
defendant Broadwell as non-urgent and directed plaintiff to
continue with prescribed treatment. (Broadwell Aff. (DE 67-1)
¶11; Broadwell Ex. 8 (DE 68-8)).
September 9, 2013, plaintiff declared a medical emergency due
to severe hip and back pain. (Broadwell Aff. (DE 67-1)
¶12; Am. Compl. (DE 17) ¶14). Via telephone,
defendant Broadwell ordered that plaintiff be transported to
East Carolina Medical Center. (Broadwell Aff. (DE 67-1)
¶12). A Physician's Assistant (“P.A.”)
diagnosed “muscle spasms of the back and back pain (not
otherwise specified).” (Broadwell Ex. 8 (DE 68-8) at
11, 13 (emergency department note)). Plaintiff received an
injection of Toradol, a non-steroidal anti-inflammatory
medication for pain and inflamation. (Id. at 9). The
P.A. recommended oral doses of Toradol for pain and Robaxin,
a muscle relaxant, for stiffness or muscle spasms.
(Id. at 13; Broadwell Aff. (DE 67-1) ¶12).
Plaintiff declined the P.A.'s recommendation for an
injection of Solumedrol, a corticosteroid used to treat
inflamation. (Broadwell Aff. (DE 67-1) ¶12;
Broadwell Ex. 8 (DE 68-8) at 10). Based upon the P.A.'s
recommendations, defendant Broadwell entered an order for
plaintiff to take Flexeril, a muscle relaxant similar to
Robaxin, two times a day for seven days. (Broadwell
Aff. (DE 67-1) ¶12; Broadwell Ex. 8 (DE 68-8) at 4
(provider order dated September 9, 2013), 16 (record showing
administration of Flexeril to plaintiff between September 9
and September 16)). Plaintiff was discharged in stable
condition and returned to Pamlico in a wheelchair. (Broadwell
Aff. (DE 67-1) ¶12). Later that evening, a nurse
informed plaintiff he could not remain at Pamlico in a
wheelchair and would either need to use a cane or be
transferred to a different facility. (Broadwell Ex. 8 (DE
68-8) at 3 (medical note dated September 9, 2013, at 19:30)).
Plaintiff elected to use a cane and one was issued for use
until September 12, 2013. (Broadwell Aff. (DE 67-1)
September 12, 2013, although plaintiff had been
“instructed to avoid weights/heavy lifting, outdoor
sports and recreational activities for fourteen days, ”
a nurse noted observing plaintiff on the basketball court
wearing sneakers, shorts, and a T-shirt while bouncing and
passing a basketball. (Id. at ¶13). When
plaintiff noticed he was being observed, he “rapidly
walked to the door and stated, ‘I'm not playing!
I'm the coach. I'm coaching.'” (Broadwell
Ex. 8 (DE 68-8) at 3).
September 22, 2013, plaintiff entered a sick-call request as
to back pain stating that, when he was at the hospital, a CT
scan or an MRI was recommended. (See Broadwell Ex. 9
(DE 68-9)). On October 1, 2013, plaintiff was seen by
defendant Mussari in response to this request.
(Id.). Defendant Mussari found no recommendation of
a CT scan or MRI in the records, advised plaintiff to
“avoid extreme sports and activities, ” and
counseled plaintiff to continue with his treatment plan.
(Id.). Plaintiff's request was not referred to
defendant Broadwell. (Broadwell Aff. (DE 67-1) ¶14).
October 31, 2013, plaintiff was seen by a nurse after he
injured his lip playing basketball. (Broadwell Ex. 10 (DE
68-10) at 2). Defendant Broadwell directed that plaintiff be
transported to an emergency room. (Broadwell Aff. (DE 67-1)
¶15). Plaintiff was: treated by a P.A.; diagnosed with a
“complicated lip laceration” that was sutured;
given a prophylactic tetanus immunization; prescribed an oral
antibiotic; and informed he could take Tylenol or Motrin as
directed. (Broadwell Ex. 10 (DE 68-10) at 7). Back at
Pamlico, plaintiff received an ice pack and Ibuprofen.
(Id. at 2-3).
January 14, 2014, plaintiff submitted a sick-call request
alleging, among other things, that he is still suffering from
severe lower back and hip pain and “possibly nerve
damage.” (Broadwell Ex. 12 (DE 68-12) at 2). On January
20, 2014, defendant Mussari noted that plaintiff was a
“no-show” at his scheduled appointment to address
these concerns. (Id.).
March 3, 2014, plaintiff submitted a sick-call request
asserting, in relevant part: he has complained of severe back
and hip pain for the past two years; his buttocks muscles are
always sore and tight; and that he needs to see a specialist.
(See Broadwell Ex. 13 (DE 68-13); Am. Compl. (DE 17)
¶17). In a nurse examination on March 10, 2014,
defendant Mussari noted a painful lump on plaintiff's
right hip, entered an order for Ibuprofen, and informed
plaintiff his chart would be referred to defendant Broadwell
for renewal of Naprosyn. (See Broadwell Aff. (DE
67-1) ¶21; see also Am. Compl. (DE 17)
¶17; Broadwell Ex. 13 (DE 68-13)). On March 13, 2014,
defendant Broadwell reviewed defendant Mussari's March
10, 2014, referral and entered a six-month order for Naprosyn
twice-a-day as needed. (Broadwell Aff. (DE 67-1) ¶21;
Broadwell Ex. 14 (DE 68-14) at 2).
21, 2014, defendant Mussari examined plaintiff in response to
a July 9, 2014, sick-call request asserting back pain and
alleging that the prescribed medication “doesn't
work for [his] condition.” (Broadwell Ex. 15 (DE 68-15)
at 2; see also Am. Compl. (DE 17) ¶19;
Broadwell Aff. (DE 67-1) ¶24). On July 24, 2014,
defendant Broadwell reviewed this referral and prescribed
Elavil for pain. (Broadwell Aff. (DE 67-1) ¶25). On
July 30, plaintiff was seen by a nurse for complaints of
side-effects of Elavil, including hallucinations and night
sweats. (Id. a t ¶ 2 6; see also Am.
Compl. (DE 17) ¶18). Plaintiff signed a form noting his
refusal to take Elavil due to these side-effects. (Am. Compl.
(DE 17) ¶18; Broadwell Aff. (DE 67-1) ¶26 (noting
defendant Broadwell: entered an order discontinuing Elavil
based on plaintiff's asserted reaction to the medication
and entered a six month prescription of Tegretol for pain
instead); see also Broadwell Ex. 10 (DE 68-10), Ex.
14 (DE 68-14), Ex. 16 (DE 68-16)). On August 1, 2014,
plaintiff signed a form noting he declined to take Tegretol
because, plaintiff asserted, this medication only temporarily
relieved the pain instead of healing the injury. (Broadwell
Aff. (DE 67-1) ¶27). Defendant Broadwell discontinued
the prescription of Tegretol on August 6, 2014.
(Id.; see Broadwell Ex. 14 (DE 68-14),
Broadwell Ex. 17 (DE 68-17)).
August 4, 2014, plaintiff was seen by a nurse for a sick-call
request entered July 24, 2014, alleging back and hip pain and
asserting that the doctor refused to see him. (See
Broadwell Ex. 18 (DE 68-18)). Plaintiff requested an MRI, not
just pain medication. (Id.). The nurse: observed no
distress or difficulty while sitting or standing and a normal
gait; diagnosed lower back pain; and informed plaintiff his
chart would be referred to defendant Broadwell.
(Id.). Defendant Broadwell reviewed the chart on
August 7, 2014, and scheduled plaintiff for a
“physician's appointment in three weeks.”
(Broadwell Aff. (DE 67-1) ¶29; Broadwell Ex. 14 (DE
August 6, 2014, plaintiff filed a grievance stating, in
relevant part: he is receiving inadequate treatment at
Pamlico for a back injury sustained while working out;
defendant Broadwell has not examined plaintiff but prescribed
ineffective medications; x-rays showed “degenerative
disc” and “calcification build up”; and
that he needs an MRI for his back injury. (Defs.' App.
(DE 85-1) at 1). The grievance response states: at East
Carolina Medical Center, no deformities were found and
plaintiff was found to suffer from “muscle
spasms”; on September 19, 2013, while plaintiff was
subject to medical restrictions, plaintiff was observed
playing basketball; and plaintiff refused to take the
prescribed medication and was “noncompliant with the
providers orders as charted in you[r] medical jacket by the
facility provider.” (Compl. Attach. (DE 1-1) at
August 27, 2014, defendant Broadwell examined plaintiff. (Am.
Compl. (DE 17) ¶22; Broadwell Aff. (DE 67-1) ¶31;
Broadwell Ex. 19 (DE 68-19) (provider progress note)).
Defendant Broadwell noted plaintiff's report of chronic
low back pain with no recent injury and plaintiff's
statement that his pain decreases when he works out or plays
basketball. (Broadwell Aff. (DE 67-1) ¶31). Defendant
Broadwell also noted that, on August 21, 2014, a custody
officer observed plaintiff playing outdoor basketball and
recorded a video. (Id.; see Broadwell Ex.
10 (DE 68-10) (healthcare notes entry on August 21, 2014)).
Defendant Broadwell reviewed this video before
plaintiff's appointment. (See Broadwell Aff. (DE
67-1) at ¶31, n.13). Defendant Broadwell noted plaintiff
“running, jumping for rebounds, [and] vigorously
engaged in [the] game.” (Broadwell Ex. 19 (DE 68-19) at
2). Defendant Broadwell assessed plaintiff with chronic
non-specific back pain and entered a UR Board request for an
orthopedic consultation to determine the etiology of
plaintiff's hip calcification and any treatment
recommendation. (Id.). On October 8, 2014, the
UR Board denied the orthopedic referral request due to
plaintiff's “high level of function.”
(Id. at 5).
January 2, 2015, plaintiff was seen by a nurse for a December
22, 2014, sick-call request complaining of numbness in his
hands. (Broadwell Ex. 20 (DE 68-20)). Plaintiff asked why the
orthopedist referral was denied. (Id.). The nurse
noted plaintiff's complaints of back pain and hand
numbness, recorded plaintiff's statement that he had not
played basketball for eight months, and referred to defendant
Broadwell for reconsideration of the UR Board denial for an
orthopedic consultation. (Id.). On February 2, 2015,
defendant Broadwell reviewed plaintiff's chart as to this
referral. (Broadwell Aff. (DE 67-1) ¶34). Defendant
Broadwell avers he declined to appeal the UR Board denial
because plaintiff neither alleged new symptoms nor showed any
sufficient changes in function in the prior four months that
would merit orthopedic consultation. (Id.). Instead,
to manage plaintiff's complaints of pain, defendant
Broadwell entered a three-day prescription for Toradol and a
four-month prescription for Naprosyn. (Id.; see
also Broadwell Ex. 21 (DE 68-21)).
April 20, 2015, plaintiff was seen by a nurse for an April 7,
2015, sick-call request. (Broadwell Ex. 22 (DE 68-22) at 2).
Plaintiff alleged extreme back pain and spasms he ascribed to
his hip calcification pushing on his nerves. (Id.).
Plaintiff complained of numbness in his hands, buttocks, and
thighs, and claimed that his hip calcification had grown.
(Id. at 3). The nurse noted: plaintiff's
posture, stance, and gait were normal; plaintiff had
symmetrical strides and walked heel to toe; plaintiff did not
show signs of “unsteadiness, guarding, shuffling,
limping, or irregularity in the timing of his stride.”
(Id. at 5). The nurse referred plaintiff's
requests for an orthopaedic consultation and an x-ray.
(Id.). On May 7, 2015, defendant Broadwell reviewed
the April 20, 2015, referral, submitted a UR Board request
for new orthotic shoes that was subsequently approved, and
determined plaintiff did not require an orthopedic
consultation. (Broadwell Aff. (DE 67-1) ¶36).
1, 2015, plaintiff submitted a sick-call request alleging
numbness in his hands but plaintiff was a
“no-show” at his scheduled appointment.
(Broadwell Ex. 24 (DE 68-24) at 2-3).
10, 2015, defendant Mussari assessed plaintiff in response to
a June 29, 2015, sick-call request for hand numbness. (Am.
Compl. (DE 17) ¶¶27-28). Plaintiff complained of
“new onset of numbness of hand” he ascribed to
“something pressing on [his] spinal cord.”
(Broadwell Ex. 25 (DE 68-25) at 3). Plaintiff requested an
extra mattress and an appeal of the UR Board's denial of
an MRI. (Id.). On July 15, 2015, defendant Broadwell
reviewed defendant Mussari's encounter note and entered
no new orders. (Id. at 5).
August 4, 2015, defendant Mussari assessed plaintiff in
response to a July 16, 2015, sick-call request for hand
numbness. (Am. Compl. (DE 17) ¶¶30-31). Plaintiff
complained his “hands have been numb since April”
and they “feel like they are asleep all the
time.” (Broadwell Ex. 26 (DE 68-26) at 3). Plaintiff
stated: “I did play basketball months ago even if I was
in pain for exercise but I am not doing any more [due to]
numbness and tingling of my hands.” (Id.).
Defendant Mussari assessed “activity intolerance”
and referred plaintiff's complaint to defendant
Broadwell. (Id.). On August 12, 2015, defendant
Broadwell examined plaintiff on a previously-scheduled
“system assessment” to determine if activity
restrictions were needed. (Broadwell Aff. (DE 67-1)
¶40). Plaintiff reported hip and back pain but, because
defendant Broadwell found all plaintiff's systems were
functioning normally, plaintiff was not given any
restrictions. (Id.). However, due to his alleged
hand numbness, defendant Broadwell scheduled plaintiff for
further examination later ...