Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Oliver v. Daniels

United States District Court, E.D. North Carolina, Western Division

September 30, 2019

ISAAC H. OLIVER, Plaintiff,
v.
FAYE DANIELS, Superintendent; LAUREN HARRELL, Asst. Superintendent of Programs; DR. RICHARD O. BROADWELL, III; and ALICE MUSSARI, Supervising Nurse, [1] Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         The 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.

         STATEMENT OF THE CASE

         On May 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.

         On 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.

         On 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.

         On March 11, 2019, plaintiff filed a sur-reply to defendant Broadwell's response to plaintiff's statement of material facts.

         On 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.

         On April 22, 2019, defendants Daniels, Harrell, and Mussari filed a reply and, on May 6, 2019, plaintiff filed a sur-reply.

         STATEMENT OF THE FACTS

         In July 2013, plaintiff noted a bulge protruding from his lower back and hip. (Am. Compl. (DE 17) ¶11).[2] 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) .[3] 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 request)).

         On July 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)).

         On 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 67-1) ¶8).

         On 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.[4] (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, [5] ordered tests to check for underlying infections or inflammatory conditions, [6] and ordered an x-ray for the right hip.[7] (Id.). Defendant Broadwell also wrote plaintiff a six-month prescription for Naprosyn, a non-steroidal anti-inflammatory pain medication.[8] (Id.; Broadwell Ex. 4 (DE 68-4)).

         An 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.[9] (Broadwell Aff. (DE 67-1) ¶10).

         After a 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)).

         On 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.[10] (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.[11] (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) ¶12).

         On 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).

         On 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).

         On 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).

         On 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.[12] (Id.).

         On 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.[13] (Broadwell Aff. (DE 67-1) ¶21; Broadwell Ex. 14 (DE 68-14) at 2).

         On July 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.[14] (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)).

         On 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 68-14)).

         On 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.”[15] (Compl. Attach. (DE 1-1) at 3).

         On 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.[16] (Id.). On October 8, 2014, the UR Board denied the orthopedic referral request due to plaintiff's “high level of function.” (Id. at 5).

         On 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)).

         On 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).

         On June 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).

         On July 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.[17] (Id. at 5).

         On 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.