Goulette v. Kalinski

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

5:18-cv-00047-MR

ARTHUR JAY GOULETTE, )

)

Plaintiff, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

MARTA KALINKSI, )

)

Defendant. )

________________________________ )

THIS MATTER comes before the Court on the parties’ motions for

summary judgment [Docs. 73, 76].

I. PROCEDURAL BACKGROUND

Pro se Plaintiff Arthur Jay Goulette (“Plaintiff”) was formerly a prisoner

of the State of North Carolina, most recently housed at Mountain View

Correctional Institution in Spruce Pine, North Carolina. Plaintiff was recently

released from prison and “at [the] last minute [was] ordered to [the] state

mental hospital” in Goldsboro, North Carolina. [Doc. 90].

Plaintiff filed a Complaint on March 16, 2018, pursuant to 42 U.S.C. §

1983. [Doc. 1]. Plaintiff filed an Amended Complaint, alleging that his rights

under the Eighth Amendment to the U.S. Constitution were violated by

Defendant Marta Kalinski, M.D.’s deliberate indifference to Plaintiff’s serious

medical needs while he was housed at Alexander Correctional Institution

(“Alexander”).1 [Doc. 12]. Plaintiff also purported to state claims for medical

malpractice, retaliation, and civil conspiracy. [See id.]. Plaintiff seeks

compensatory and punitive damages and injunctive relief. [Id. at 5].

Plaintiff’s Amended Complaint survived initial review under 28 U.S.C. §§

1915(e)(2) and 1915A. [Doc. 15].

Dr. Kalinski moved to dismiss Plaintiff’s Complaint for failure to state a

claim upon which relief may be granted under Rule 12(b)(6) of the Federal

Rules of Civil Procedure. [Doc. 30]. The Court denied this motion as to

Plaintiff’s Eighth Amendment claim for deliberate indifference to Plaintiff’s

serious medical needs and granted it as to Plaintiff’s remaining claims. [Doc.

46].

The parties have now moved for summary judgment. [Docs. 73, 76].

The 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. 79]. The Plaintiff was

1 Plaintiff also named Benjamin M. Anderson, identified as the “Chief Medical

Officer/Assistant Superintendent” of Alexander, as a Defendant in this matter, but later

voluntarily dismissed Anderson as a Defendant. [Docs. 53, 55].

specifically advised that he “may not rely upon mere allegations or denials of

allegations in his pleadings to defeat a summary judgment motion.” [Id. at

2]. Rather, he must support his assertion that a fact is genuinely disputed

by “citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” [Id. at 3 (citing Fed.

R. Civ. P. 56(c)(1)(a)]. The Court further advised that, “[i]f Plaintiff has any

evidence to offer to show that there is a genuine issue for trial,” “he must now

present it to this Court in a form which would otherwise be admissible at trial,

i.e., in the form of affidavits or unsworn declarations.” [Id. at 2 (citing Fed. R.

Civ. P. 56(c)(4))]. The parties timely responded to each other’s motions

[Docs. 75, 81] and Dr. Kalinski replied to Plaintiff’s response [Doc. 86].

In support of his summary judgment motion, Plaintiff submitted various

documents, including a “Statement of Undisputed Facts” [Doc. 73-2], a

Memorandum in Support [Doc. 73-3], a “Declaration” submitted under

penalty of perjury [Doc. 73-4], and 648 pages of his medical record2 [Docs.

2 For purposes of summary judgment, medical records, the authenticity and admissibility

of which are not challenged, may be considered part of the evidentiary forecast even

when presented without an affidavit. See Jones v. Western Tidwater Regional Jail, 187

F.Supp.3d 648, 654 (E.D. Va. 2016).

73-5 through 75-8]. Dr. Kalinski responded to Plaintiff’s motion, largely

incorporating the materials she submitted in support of her own summary

judgment motion. [See Doc. 75].

In support of her summary judgment motion, Dr. Kalinski submitted a

Memorandum in Support [Doc. 77], a 55-page Declaration [Doc. 78],

Plaintiff’s Offender Movement Log [Doc. 78-2], Plaintiff’s Offender Control

History [Doc. 78-3], and 749 pages of Plaintiff’s medical record [Docs. 78-4

through 78-46]. In response to Dr. Kalinski’s motion, Plaintiff filed a

“Statement of Disputed Factual Issues” [Doc. 81], a “Brief in Opposition to

Defendants’ [sic] Summary Judgment Motion” [Doc. 81-2], and a

“Declaration in Opposition to Defendants’ Motion for Summary Judgment,”

submitted under penalty of perjury [Doc. 81-1]. As such, Plaintiff’s

evidentiary forecast now before the Court includes Plaintiff’s Declarations

[Docs. 73-4, 81-1], which are largely duplicative, and the medical records

Plaintiff filed in support of his summary judgment motion [Docs. 73-5 through

75-8].3

3 Because Plaintiff’s summary judgment materials have no tendency to show that Plaintiff

is entitled to judgment as a matter of law, the Court declines to address them in that

posture. The Court also notes that, in support of his summary judgment motion, the

Plaintiff alleged new ways in which he contends Dr. Kalinski was deliberately indifferent,

which the Court addresses below.

II. STANDARD OF REVIEW

Summary judgment shall be granted “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is material only if it might affect the outcome of the suit under

governing law. Id.

The movant has the “initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving

party. The nonmoving party “must set forth specific facts showing that there

is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not

rely upon mere allegations or denials of allegations in his pleadings to defeat

a motion for summary judgment. Id. at 324. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations …, admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Namely, the

nonmoving party must present sufficient evidence from which “a reasonable

jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at

248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th

Cir. 1995).

When ruling on a summary judgment motion, a court must view the

evidence and any inferences from the evidence in the light most favorable to

the nonmoving party. Anderson, 477 U.S. at 255. “‘Where the record taken

as a whole could not lead a rational trier of fact to find for the nonmoving

party, there is no genuine issue for trial.’” Ricci v. DeStefano, 129 S. Ct.

2658, 2677 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)). “[I]n determining whether a prisoner has received adequate

medical treatment, the federal court is entitled to rely on the physician’s

affidavit and prison medical records kept in the ordinary course of operation.”

Stokes v. Hurdle, 393 F. Supp. 757, 762-63 (4th Cir. 1975), affirmed, 535

F.2d 1250 (4th Cir. 1976) (citations omitted). “In short, if it appears from the

record that the prison medical authorities have made a sincere and

reasonable effort to handle the prisoner’s medical problems, the

constitutional requirements have been met.” Id. at 763.

For the sake of clarity, the Court will first present the facts alleged by

Plaintiff in his Amended Complaint, then present Defendant’s forecast of

evidence, and finally examine any potential genuine issues of facts raised by

Plaintiff’s forecast of evidence, as the non-movant.

III. FACTUAL BACKGROUND

A. Plaintiff’s Allegations

In support of his claim for deliberate indifference to Plaintiff’s serious

medical needs against Dr. Kalinski, Plaintiff alleges as follows.

On May 6, 2016, Plaintiff was transferred from Central Prison to

Alexander. [Doc. 12-1 at 1]. While at Central Prison, Plaintiff was being

treated for migraines, and neck, back, and hand injuries. [Id.]. Plaintiff’s left

hand had a “locked index finger” and Plaintiff had been approved for

occupational therapy, which the Central Prison doctors were using to

determine whether Plaintiff would benefit from surgery. [Id.]. Once Plaintiff

arrived at Alexander, however, Dr. Kalinski discontinued “all of the Central

Prison orders” for Plaintiff, “including but not limited to M.R.I. prepping the

Plaintiff for surgery and the [Utilization Review Request4 (UR)-] approved

occupational therapy.” [Id.].

On December 4, 2016, a drainage pipe in Plaintiff’s housing unit burst,

flooding Plaintiff’s entire unit. Plaintiff fell as a result of the water, sustaining

injuries to his neck, back, pelvis, hips, and right hand. [Id.]. The next day

Plaintiff had an “emergency encounter” with Nurse Mary E. Stikeleather, RN,

who contacted Marilyn Gamewell, FNP, and told Gamewell that Plaintiff

should have been taken to an outside hospital the day before. [Id. 1-2]. In

response, Gamewell told Nurse Stikeleather that in order for Plaintiff to be

seen at an outside hospital, he would “need to be seen by the provider.”

Plaintiff was not seen by Dr. Kalinski or any doctor for the injuries he suffered

the day before despite his numerous sick call encounters and despite

numerous different sick call nurses referring Plaintiff “to be seen and

examined by Defendant Dr. Marta Kalinski, M.D., with the Plaintiff not being

examined, reexamined or otherwise reevaluated for his injuries.” [Id. at 2].

On January 19, 2017, Dr. Kalinski “with evil intent and motivation”

decreased Plaintiff’s pain medications, which Plaintiff needed for treatment

4 A Utilization Review Request (UR) must be submitted by the facility providers for any

service that requires precertification or prior authorization. Precertification and

authorization are necessary to confirm eligibility for and obtaining an authorization

number prior to scheduled inpatient admissions and “selected ambulatory procedures and

specialty consult services.” [Doc. 73-8 at 2: NCDPS Health Services Policy & Procedure

Manual, Utilization Management Policies].

of his chronic pain. [Id.]. On January 22, 2017, Plaintiff sustained further

injuries when he fell on water caused by a leak in the sink in Plaintiff’s cell.

When he fell, Plaintiff was knocked unconscious and taken to Catawba

Valley Medical Center (CVMC) for treatment. Plaintiff sustained injuries to

his neck and back and head trauma. The emergency room physician, Jon

A. Giometti, M.D., referred Plaintiff to care by his “Primary Care Provider” at

Alexander, “with the Defendant Dr. Marta M. Kalinski, M.D. refusing to

examine, reexamine or otherwise reevaluate the Plaintiff.” [Id. at 3].

On June 27, 2017, Dr. Kalinski again discontinued orders by the

Central Prison doctors for occupational therapy, which was again being used

to determine whether Plaintiff would benefit from surgery on his left index

finger. [Id. at 3-4].

On September 22, 2017, Plaintiff found out during a session with a

physical therapist that Plaintiff “has fractures in his neck,” when the physical

therapist reviewed the results of Plaintiff’s February 2017 MRI at Central

Prison. [Id. at 4]. In January 2018, Dr. Kalinski again discontinued an order

from a Central Prison doctor for Plaintiff’s occupational therapy. [Id.]. Also

in January 2018, Dr. Kalinski discontinued Plaintiff’s prescription for

Tramadol 300 mg, which was ordered by a Central Prison doctor and

recommended by “UNCH [University of North Carolina Hospitals] Neurosurg

Pain Clinic,” and needed by Plaintiff for treatment of his “constant severe

chronic pain.” [Id. at 5].

On October 6, 2016; October 18, 2016; October 12, 2017; November

1, 2017; May 4, 2018; and May 16, 2018, Plaintiff was told by medical staff

that his appointments scheduled for these days with Dr. Kalinski would have

to be “rescheduled due to an emergency or some other excuse.” [Id. at 4].

Plaintiff included with his Amended Complaint the Declaration of Calvin

Metcalf, a fellow inmate at Alexander.5 [Doc. 12-3]. Metcalf attested that,

on May 4, 2018, he accompanied Plaintiff to a medical appointment

scheduled with Dr. Kalinski and that Plaintiff was told that “due to an

unexpected emergency that the provider Dr. Marta M. Kalinski, M.D. had to

leave and that his appointment would have to be rescheduled.” [Id. at 1-2].

Metcalf also attests that, at this time, a Nursing Supervisor explained to

Plaintiff that Dr. Kalinski had “reordered” Plaintiff’s Gabapentin medication

for Plaintiff’s nerve pain. Metcalf attests that this “turned out to be a lie and

false, because, at medication time inmate Goulette did not receive any of his

pain medications.” [Id. at 2]. The Nursing Supervisor also explained to

5 Metcalf’s Declaration appears to be written in Plaintiff’s handwriting, including Metcalf’s

name written at the end of the Declaration. Metcalf’s signature appears nowhere on the

Declaration. [See Doc. 12-3]. Because this Affidavit does not create an issue of fact, the

Court need not address whether it can or should be considered given its insufficiencies.

Plaintiff that “his UR approved appointment at the UNCH Neurosurgery Clinic

for his pending evaluation for neck and back surgery had still not been

scheduled.” [Id.].

Finally, Plaintiff generally alleges that Dr. Kalinski has failed to

“examine,” “reexamine,” or “otherwise reevaluate [his] medical conditions

and ailments.” Plaintiff claims that Dr. Kalinski’s delay in treating Plaintiff’s

serious medical needs “has caused [him] to suffer permanent injuries

including nerve damage, partial paralysis, prolonged neck and back pain,

dizziness, recurring chronic migraines, difficulty multitasking along with the

bottom disc in [his] lower back having now severely narrowed, causing

[Plaintiff] severe sciatica and severe pain in [his] back and legs with back

spasms.” [Id. at 6].

B. Defendants’ Forecast of Evidence

Defendant’s forecast of evidence tends to show the following. Dr.

Kalinski is licensed to practice medicine in North Carolina and has been

practicing medicine for over 20 years. [Doc. 78 at ¶ 2: Declaration of Marta

Kalinski, M.D.]. At all relevant times, Dr. Kalinski was employed by the N.C.

Department of Corrections and/or the N.C. Department of Public Safety.

[Id.].

On May 6, 2016, Plaintiff was transferred from Central Prison to

Alexander. [Id. at ¶ 5]. On the same day, Sarah Crubaugh, RN, performed

a health screen on Plaintiff. [Doc. 78-5 at 2-6]. Nurse Crubough noted that

Plaintiff “questions about where he is in the status of his Surgical consult and

stated that he had originally had a pending appointment for MRI?” [Id. at 6].

Dr. Kalinski reviewed the record of the health screen shortly after it was

concluded. [See id. at 6-7]. She noted: “Patient arrived to Alexander from

CP. Unfortunately, patient came with just Tramadol 50 mg #4 tabs. Other

medications he is on did not arrive with patient. Since today is Friday, we

will need to obtain 5 days supply from the local pharmacy to maintain

patient’s current medical problems controlled.” [Id. at 7]. Dr. Kalinski entered

new medication orders for CarBAMazepine (for tension-type headache and

chronic pain due to trauma), Gabapentin (for chronic pain due to trauma and

lumbrosacral spondylosis6 without myelopathy7), Propranolol HCl CR (for

tension-type headache), and Lithium Carbonate (for bipolar I disorder). [Id.

at 7-8]. The medical record reflects that Dr. Kalinski placed a separate order

for 15 tablets of Tramadol from a local pharmacy so there would be no lapse

in Plaintiff’s access to this medication. [Id. at 10].

6 A general term for age-related wear and tear of the spinal disks.

7 Compression of the spinal cord.

On December 4, 2016, Plaintiff “fell and hit [his] hand.” [Doc. 78-26 at

2]. He was first assessed within 30 minutes of the fall by Edgar Onia, RN.

[Id.]. Nurse Onia examined Plaintiff and noted as follows:

Offender was found in sitting position on floor with

back supported by sink. Reports that he fell while

attempting to ambulate to cell door to give another

inmate a Stryfoam cup that was held in left hand and

with cane in right hand. NO paresthesias for upper

and lower extremities. Reports pain in right hand.

Contusion with elevated bump noted dorsal aspect

right hand at 1st and second metacarpals/distal

phalanges. Has good capillary refill and has limited

[range of motion] which he reports as normal finding

due to his arthritis. Denies seizure, dizziness or [loss

of consciousness] at the time of falling but reports

mild dizziness now. Offender was able to return to

wheelchair with assistance. Plan is for joint trauma

protocol. Issued ice pack and instructions for hand

care.

[Doc. 78-26 at 3]. Plaintiff was seen in follow-up the next day by Mary

Stikeleather, RN. [Doc. 78-27 at 5-7]. At this visit Plaintiff complained of

pain in his right hand, left hip, and buttocks. [Id. at 5]. Based on Plaintiff’s

symptoms, Nurse Strikeleather directed Nurse Tilley “to have patient referred

to provider.” [Id. at 6]. On December 7, 2016, apparently before this referral

visit occurred, Plaintiff was evaluated by Grace Williams, LPN, at the

Restrictive Housing Unit. Plaintiff had been in a fight and his right hand

“[was] hurting again.” [Id. at 2]. Plaintiff’s right hand was x-rayed, and the

results were “unremarkable.” [Id. at 4, 6]. FNP Gamewell reviewed and co-

signed this care. [See id. at 4, 7].

On January 19, 2017, FNP Gamewell noted that Plaintiff refused a

blood draw to test for Tramadol and Gabapentin levels and was, therefore,

in violation of his pain contract. [Doc. 78-28 at 10]. As a result, Gamewell

discontinued both these medications. [Id.]. It appears that, on January 31,

2017, Gamewell ordered that Plaintiff’s Tramadol prescription be renewed.

[See id. at 12].

On January 22, 2017, Plaintiff sustained another fall in his cell. [See

Doc. 78-29 at 2-3]. Plaintiff was evaluated within 30 minutes of the fall by

Marionne Hicks, RN. [Id. at 2]. Given Plaintiff’s injuries, Dr. Uhren was called

and Plaintiff was ordered to the local emergency room for further evaluation.

[Id. at 3]. Plaintiff was transported to CVMC, where he was examined in the

emergency room by Jon Giometti, M.D. [Id. at 7-10]. Dr. Giometti ordered

x-rays of Plaintiff’s spine and CT scans of Plaintiff’s head and spine, all of

which were negative for acute findings. [Id. at 8-9, 11-12, 14]. Plaintiff was

diagnosed with a head contusion and discharged in “improved” condition.

He was instructed to use a cool compress on his forehead and Tylenol or

Motrin, if needed. [Id. at 9]. On return to Alexander on the morning of

January 23, 2017, Plaintiff was seen by Thomas Bell, RN. [Id. at 16-17].

Nurse Bell noted “no significant findings” and that Plaintiff was in “no

apparent distress.” [Id. at 17].

On February 22, 2017, Plaintiff was transported to Central Prison for

an MRI of his cervical spine. [Doc. 78-30 at 2; Doc. 78 at ¶ 37]. Plaintiff was

found to have “straightening of normal cervical spine curvature” and

“moderate multilevel spondylosis.” [Id.]. This MRI did not reveal any

fractures. [Doc. 78 at ¶ 42]. Plaintiff had a physical therapy session at

Alexander on September 22, 2017. [Doc. 78-34 at 47]. The physical

therapist did not mention Plaintiff’s February 2017 MRI results in his notes

from that session. [See id.; Doc. 78 at ¶ 42].

On April 4, 2017, Plaintiff was transferred from Alexander to Central

Prison for mental health treatment. [Doc. 73-5 at 196]. He remained there

until May 26, 2017, when he returned to Alexander. [Doc. 78-2 at 2].

On June 27, 2017, after Plaintiff’s return from Central Prison, Dr.

Kalinski entered an administrative note in Plaintiff’s medical record stating

that, “Alexander does not have [occupational therapy]. UR for this

consultation will be [discontinued].” [Doc. 78-33 at 2]. Plaintiff’s medical

record reflected that Plaintiff was an “[o]ffender with locked index finger on

left hand, was previously being seen by [occupational therapy] but was

transferred before his sessions were completed.” [Id. at 3].

On December 8, 2017, Plaintiff was noted to be manic, non-compliant

with his medications, and having aggression and “difficulty stopping

violence” when off his medications. [Doc. 78-35 at 95]. Plaintiff was again

sent to Central Prison for inmate mental health treatment the next day. [Doc.

78-2 at 2; Doc. 78-35 at 99; Doc. 78 at ¶ 43]. On January 12, 2018, Plaintiff

was examined by Robert Fearnot, M.D., a psychiatrist, while at Central

Prison. [Doc. 78-35 at 108-109]. Dr. Fearnot noted, in part, as follows:

Patient continued to go into a tirade about how he felt

that he was getting the run around by medical and

that he was being seen by various doctors who

cancelled previous treatment. He showed me a

progress note from a provider dated June of last year

which referred back to OT. He claimed that the note

indicated that he did not need OT. Writer

underline[d] the section of the progress note which

indicated that he was being referred back to OT since

he claimed that he could not see without his glasses.

He went into a tirade about this stating that it is [a]

legal document which could not be underlined[.]

Offered to reprint a copy of him. Patient went on

[about] how nobody wanted to help him and how he

was going [to] break necks once off of lock up.

[Id. at 108]. Dr. Fearnot ordered that Plaintiff be discharged, noting “he has

reached maximum benefit of mental health care since all of his concerns at

this time are related to medical problems.” [Id.]. Plaintiff, however, could not

be discharged immediately because he had been placed “on seclusion

because of his anger outbursts and threats to harm someone once he comes

out of his cell.” [Id. at 85]. Plaintiff was discharged from the mental health

unit at Central Prison a week later and returned to Alexander, where he was

returned to Restrictive Housing.8 [Doc. 78 at ¶ 44].

On Plaintiff’s return to Alexander, Lisa Putt, RN, performed a health

screen on Plaintiff. [See Doc. 78-35 at 112-117]. In the record for this

encounter, Nurse Putt noted that Plaintiff “was confused as to why he was

sent back to this camp when he was sent to [Central Prison] for [occupational

therapy].” [Id. at 113]. Plaintiff’s chart was not referred to Dr. Kalinski in

January 2018. Further, Dr. Kalinski did not discontinue any order for

occupational therapy in January 2018 nor was occupational therapy

available at Alexander in any event. [Doc. 78 at ¶ 44]. Dr. Kalinski is also

not involved in determining where inmates are housed. [Id.]. Finally, Dr.

Kalinski did not discontinue Plaintiff’s Tramadol prescription in January 2018,

as claimed by Plaintiff. [See Doc. 78 at ¶ 43; Doc. 78-36].

On February 20, 2018, Plaintiff’s chart was inadvertently referred to Dr.

Kalinski for a routine renewal order for Tramadol even though Plaintiff was

8 Dr. Kalinski did not routinely provide care to inmates in Restrictive Housing during the

relevant times. [Doc. 78 at ¶ 43]. On limited occasions or by error, nurses would refer a

chart of a Restrictive Housing inmate to Dr. Kalinski to review or to co-sign for a specific

concern. When that occurred, Dr. Kalinski would review the chart for the specific concern

and/or co-sign the chart, including renewing medications, as necessary, rather than

referring the chart to Restrictive Housing Unit providers. [Id. at ¶ 43].

in Restrictive Housing. [Doc. 78 at ¶ 45]. In an effort to provide Plaintiff with

the care he needed without delay, Dr. Kalinski renewed Plaintiff’s Tramadol

prescription, but only for 15 days, until the effects of Plaintiff’s recent

paraspinal injections could be evaluated.9 [Doc. 78 at ¶ 45; Doc. 78-37 at 2].

On May 17, 2018, Plaintiff was examined by Vickie Yaber, LPN, after

a fall Plaintiff sustained after “walking back from the pill line.” [Doc. 78-45 at

2]. At this visit, Plaintiff reported pain in his left hip, lower back, and neck, but

the pain was “the same as prior to [the] fall.” [Id. at 2, 5]. Plaintiff also

reported muscle spasms in his lower back, that he was unable to walk long

distances without difficulty, and that he was too dizzy to stand after the fall.

[Id. at 5]. Dr. Uhren approved Nurse Yarber’s recommendation to send

Plaintiff to Catawba Valley Medical Center emergency room for further

evaluation. [Id.].

As to Plaintiff’s alleged appointments with Dr. Kalinski that he claims

were rescheduled due to emergencies or “some other excuse,” Defendant’s

forecast of evidence shows the following. On October 6, 2016, while Plaintiff

was in the pill line, he requested that he be provided with a cane. [Doc. 78-

18 at 2]. Kelly Porter, RN, recorded this request. [See id.]. Within an hour

9 On February 13, 2018, Plaintiff was transported to UNCH to receive cervical and lumbar

epidural injections and returned to Alexander without complication. [Doc. 78 at ¶ 45 n.29;

see Doc. 78-39 at 4-7].

of Nurse Porter’s note on Plaintiff’s request, Dr. Kalinski evaluated the

request and noted that a “cane has been assigned to patient without day of

expiration.” Dr. Kalinski noted, “[plaintiff] should have a cane and use it for

short distance and use a wheelchair for longer distances.” [Id. at 4]. Later

that day, Plaintiff was seen at the medical clinic by FNP Gamewell,

complaining of needing new orthopedic shoes because his current pair were

from 2014 and “they sick.” [Id. at 5]. As a result of this request, FNP

Gamewell made an UR for approval of new orthopedic shoes for Plaintiff.

[Id. at 7].

On October 18, 2016, Sarah Wilson, LPN, recorded an administrative

note in Plaintiff’s chart, noting that, “Pts complaints are being address. UR

has been approved for neuro consult. Nursing note has been forwarded to

Kalinski for cane, and a chart review will be submitted with this encounter for

renewal of migraine medication.” [Doc. 78-21 at 2]. A few hours later Plaintiff

was seen at the medical clinic by FNP Gamewell, complaining of wanting his

cane and migraine medication renewed. Gamewell also noted that Plaintiff

stopped taking his lithium “months ago because he read it could cause

thyroid cancer.” [Id. at 3-5]. At this visit, Plaintiff told Gamewell that he was

being threatened by other inmates for his Gabapentin, but that he had not

told anyone because “he doesn’t want to be called a snitch.” [Id. at 4].

Other administrative notes recorded on October 18, 2016 provide that

Plaintiff was seen the day before by FNP Gamewell after a fall on October

17, 2016, that Plaintiff’s “concerns [were] addressed at that time,” and that

Plaintiff’s chart was removed from Dr. Kalinski’s provider co-signature list.

[Id. at 11-12].

On October 26, 2016, a check of Plaintiff’s Gabapentin level revealed

that his level was lower than it should have been had Plaintiff been taking his

Gabapentin as prescribed. [See id. at 8]. On November 1, 2016 Gamewell

reviewed these results and ordered that Plaintiff’s Gabapentin and Tramadol

levels be checked in one month and noted that, if they are low, these

medications will be discontinued. [Doc. 78-24 at 3]. Plaintiff was advised

that his levels would be monitored. [Id.].

On October 12, 2017, Plaintiff was seen by FNP Gamewell at the

medical clinic to “discuss returning to UNCH spine center for re-eval of his

chronic back and neck pain.” [Doc. 78-34 at 52]. Gamewell also noted that

Plaintiff “has numerous requests, each will be discussed and granted if

possible. [H]e is very verbal and jovial in clinic. [He] wants his cane back so

he can get out of the wheelchair more. [A]nother can[e] was given to him as

he lost his when he went to [segregation].” [Id. at 52]. Gamewell entered an

UR for Plaintiff “to return to the UNC Spine CTR Neurosurgery for continued

neck and lower back pain.”10 [Id. at 53, 56].

C. Plaintiff’s Forecast of Evidence

As noted, Plaintiff submitted 648 pages of his medical record. Plaintiff

also submitted Declarations in which he makes blanket, bare assertions

regarding Dr. Kalinski’s alleged care or lack of care that are unsupported by

the medical record on which he relies. [See Docs. 73-4, 81-1].

Plaintiff asserts that Dr. Kalinski failed to see him in follow up after he

returned from CVMC for emergent care related to his January 22, 2017 fall.

[Doc. 73-4 at ¶ 34]. The forecast of evidence, however, shows that Plaintiff

was seen in follow up by another provider. Moreover, Plaintiff forecasts no

evidence that Dr. Kalinski was supposed to see Plaintiff in follow up.

Furthermore, Plaintiff was diagnosed with only a contusion due to this fall

and he has not forecast evidence that any alleged lack of follow up care by

Dr. Kalinski or otherwise constitutes deliberate indifference to a serious

medical need.

Plaintiff’s forecast of evidence also includes a Declaration of fellow

inmate Jamol Dixon, who attests that he accompanied Plaintiff to Plaintiff’s

10 As to the remaining dates on which Plaintiff claims his appointments with Dr. Kalinski

were rescheduled, the medical record does not reflect that Plaintiff received medical care

on or about November 1, 2017; May 4, 2018; or May 16, 2018 by Dr. Kalinksi or otherwise.

September 22, 2017 physical therapy appointment and that the physical

therapist told Plaintiff that “he had fractures in his neck that M.R.I. results

had confirmed.” [Doc. 73-6 at 45]. Dixon further attests that the physical

therapy “got out a medical book” and showed Dixon and Plaintiff “the kind of

fractures he has to his neck and the damage the fractures have and can

cause.” [Id. at 45-46]. Plaintiff’s forecast of evidence, however, does not

contain any MRI report reflecting findings of neck fractures.

Plaintiff also alleges that, on December 1, 2017, Dr. Kalinski “unjustly”

discontinued Plaintiff’s pain medication, Tramadol. Plaintiff also attests that

on other occasions, Dr. Kalinski discontinued Plaintiff’s Tramadol and

Gabapentin. [See Doc. 73-4 at ¶¶ 36, 37, 39, 40]. Plaintiff’s forecast of

evidence in support of these claims, however, does not reflect any such

action taken or directed by Dr. Kalinski. [See Doc. 73-5 at 160, 239-46, 251-

54, 258-74; Doc. 73-8 at 39-119]. Much of the care referenced by Plaintiff

was provided by FNP Gamewell and other providers, not Dr. Kalinski, and

none of the Plaintiff’s records reflect any “unjust” action relative to Plaintiff’s

medications. [See id.].

Plaintiff’s forecast of evidence also shows that on February 12, 2018,

Plaintiff went to the UNCH pain clinic for epidural steroid injections. [Doc.

73-8 at 84]. As described in Defendant’s forecast of evidence, Dr. Kalinski

ordered a 15-day supply of Tramadol for Plaintiff on February 26, 2018 “until

the effects of paraspinal injection are evaluated.” [Doc. 73-5 at 258]. On

March 13, 2018, Plaintiff filed a grievance to have his “300 mg tramadol pain

medication to be renewed.” [Id. at 259]. The Step One grievance response

directed Plaintiff to submit a sick call regarding his concerns. [Id. at 261-63].

Thereafter, Plaintiff filed numerous sick call requests, but then apparently

“refused [his] sick calls dated 4/8/2018, 4/9/2018 & 4/14/2018 to address

these medical concerns.” [Doc. 73-8 at 85]. On April 23, 2018, Plaintiff

submitted another sick call request. He requested renewal of his pain

medications, including Gabapentin, Tramadol, Mobic, and Imitrex. [Id. at 88].

The next day, James Johnson, NP, entered a medication renewal for Mobic

and Imitrex (Sumatriptan) and an UR request for Gabapentin. Dr. Kalinski

cosigned this order on May 14, 2018.11 [Id. at 89-91].

Plaintiff alleges in his Complaint that Dr. Kalinski conspired with others

“on numerous different occasions” by removing Plaintiff from his scheduled

appointments with Dr. Kalinski. [Doc. 73-4 at ¶ 42]. Plaintiff further alleges

that “Defendant Kalinski and her co-conspirators would alway’s [sic] come

11 Dr. Kalinski’s forecast of evidence shows that her review of Plaintiff’s chart was

duplicative of FNP Gamewell’s review and that Dr. Kalinski noted in reviewing the order

that Plaintiff “has active orders for: gabapentin, Mobic, and Sumatriptan” and the “[o]rder

for Tramadol was temporary.” [Doc. 78-44 at 3; Doc. 78 at ¶ 50].

up with lies and excuses as to why [Plaintiff] would not be able to be seen.”

[Id.]. Plaintiff’s forecast of evidence, however, fails to support these bare

claims.

Plaintiff also now contends, for the first time, that he is “ADA Assigned

with multiple restrictions” and that Dr. Kalinski “would not allow [him] to have

[his] Central Prison doctor ordered handicap items and assistive devices”

that Plaintiff needed. [Doc. 73-4 at ¶ 41]. He also claims that Dr. Kalinski

violated the NCDOC Health Services Policy & Procedure Manual policies on

Utilization Management and Chronic Pain. [Id. at ¶¶ 47-48]. Plaintiff,

however, presents no forecast of evidence supporting such allegations.

This matter is now ripe for disposition.

IV. DISCUSSION

Claims under 42 U.S.C. § 1983 based on an alleged lack of or

inappropriate medical treatment fall within the Eighth Amendment’s

prohibition against cruel and unusual punishment. Estelle v. Gamble, 429

U.S. 97, 104 (1976). To state a claim under the Eighth Amendment, a

plaintiff must show a “deliberate indifference to serious medical needs” of the

inmate. Id. “Deliberate indifference requires a showing that the defendants

actually knew of and disregarded a substantial risk of serious injury to the

detainee or that they actually knew of and ignored a detainee’s serious need

for medical care.” Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th

Cir. 2001) (citations omitted). “To establish that a health care provider’s

actions constitute deliberate indifference to a serious medical need, the

treatment must be so grossly incompetent, inadequate, or excessive as to

shock the conscience or to be intolerable to fundamental fairness.” Miltier v.

Beorn, 896 F.2d 848, 851 (4th Cir. 1990).

Allegations that might be sufficient to support negligence and medical

malpractice claims do not, without more, rise to the level of a cognizable

Section 1983 claim. Estelle, 429 U.S. at 106; Grayson v. Peed, 195 F.3d

692, 695 (4th Cir. 1999) (“Deliberate indifference is a very high standard—a

showing of mere negligence will not meet it.”). “[E]ven if a prison doctor is

mistaken or negligent in his diagnosis or treatment, no constitutional issue is

raised absent evidence of abuse, intentional mistreatment, or denial of

medical attention.” Stokes v. Hurdle, 393 F. Supp. 757, 762 (D. Md. 1975),

aff’d, 535 F.2d 1250 (4th Cir. 1976). Further, the constitutional right is to

medical care. No right exists to the type or scope of care desired by the

individual prisoner. Id. at 763. Therefore, a disagreement “between an

inmate and a physician over the inmate’s proper medical care [does] not

state a § 1983 claim unless exceptional circumstances are alleged.” Wright

v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (dismissing the plaintiff’s § 1983

claim against a defendant physician for allegedly discharging the plaintiff too

early from a medical clinic, as such claim did not rise to the level of deliberate

indifference but would, “at most, constitute a claim of medical malpractice”).

To succeed on a claim against Dr. Kalinski under the Eighth

Amendment, Plaintiff must show a deliberate indifference to Plaintiff’s

serious medical needs. Estelle, 429 U.S. at 104. To establish such

indifference, the “treatment must be so grossly incompetent, inadequate, or

excessive as to shock the conscious or to be intolerable to fundamental

fairness.” Miltier, 896 F.2d at 851. Absent exceptional circumstances, a

disagreement between a prisoner and a physician over the prisoner’s proper

medical care is not grounds for a § 1983 claim. Wright, 766 F.2d at 849.

Here, the forecast of evidence shows, at best, disagreement between

Plaintiff and Dr. Kalinkski regarding discreet instances of Plaintiff’s medical

care at Alexander during the relevant times.12 See Wright, 766 F.2d at 849.

12 It is worth noting that Plaintiff’s extensive medical record is before the Court. It belies

many of Plaintiff’s mischaracterizations and misstatements of Plaintiff’s medical care. For

instance, on numerous occasions, Plaintiff alleges malfeasance by Dr. Kalinski when she

was not even the medical provider charged with his care. Whatever the reason for the

inconsistencies between certain allegations and Plaintiff’s medical record, Plaintiff’s

attempt to contradict what he himself submits as his medical record is insufficient to create

a genuine issue of material fact in this case. See Green v. Orangeburg Calhoun Detention

Center, No. 0:13-623-MGL, 2014 WL 4063328, at *4 (D.S.C. Aug. 12, 2014) (finding

prisoner plaintiff’s unsupported assertions did not create a genuine issue of fact where

the plaintiff’s medical record demonstrated no deliberate indifference to the plaintiff’s

serious medical needs).

Namely, the forecast of evidence shows that Dr. Kalinski addressed

Plaintiff’s medical needs whenever feasible when she was the provider

charged with his care, and that Plaintiff simply wanted Dr. Kalinski to

prescribe and provide different or additional treatment than he received.

Specifically, Plaintiff believed that Dr. Kalinski wrongly discontinued his

occupational therapy when he returned from Central Prison, despite the fact

that occupational therapy was not available at Alexander in the first place.

Plaintiff also believed that Dr. Kalinski “unjustly” discontinued his pain

medications on different occasions when, in reality, any minimal limitation

placed on Plaintiff’s medications by Dr. Kalinski was explained and

supported in the medical record. Plaintiff also complains that he did not

receive care by Dr. Kalinski after he sustained certain injuries. The forecast

of evidence, however, shows that Plaintiff received adequate care in these

instances, if only by other healthcare providers.

Plaintiff also faults Dr. Kalinski for having to reschedule medical

appointments in the face of prison medical emergencies. The forecast of

evidence shows, however, that Plaintiff was seen by other providers on or

shortly after the dates of most of these alleged missed appointments.

Furthermore, even if Plaintiff’s appointments on some of these dates were,

in fact, rescheduled, Plaintiff has failed to forecast evidence that Dr. Kalinski

was deliberately indifferent to a serious medical need at these times.

Namely, Plaintiff has not shown that he was experiencing a serious medical

need that was not addressed due to these alleged missed appointments.

Nor has he forecast any evidence that Dr. Kalinski was aware of any such

need or that she acted with deliberate indifference with respect thereto.

The forecast of evidence also reflects a misunderstanding by Plaintiff

regarding the scope of Dr. Kalinski’s duties and the medical care available

to Plaintiff. It seems much of Plaintiff’s claims are based on his incorrect

belief that Dr. Kalinski was his personal primary care provider and owed him

the care he desired in all instances. [See Doc. 73-4 at ¶ 26]. In short, the

medical record reflects that Dr. Kalinski “made a sincere and reasonable

effort to handle [Plaintiff’s] medical problems” and, thus, “the constitutional

requirements have been met.” Stokes, 393 F. Supp. at 763.

In sum, the total forecast of evidence (consisting of over 1300 pages),

taken in the light most favorable to the Plaintiff, does not support Plaintiff’s

assertion that Dr. Kalinski acted with “deliberate indifference” to Plaintiff’s

serious medical needs. See Estelle, 429 U.S. at 194, 97 S. Ct. at 285;

Overman v. Wang, 801 Fed. App’x 109, 111-12 (4th Cir. 2020) (affirming

judgment on bench trial finding prison doctor’s treatment of prisoner’s knee

injury was reasonable given the prisoner’s symptoms despite failure to

provide other, more advanced available treatment). The forecast of

evidence on Plaintiff’s claims against Dr. Kalinski, therefore, is insufficient to

go to a jury on a § 1983 claim under the Eighth Amendment. Summary

judgment is, therefore, appropriate.

Additionally, Dr. Kalinski is entitled to qualified immunity. Qualified

immunity shields “government officials performing discretionary functions …

from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Because Plaintiff has failed to forecast sufficient evidence that Dr. Kalinski’s

conduct violated any constitutional right, Dr. Kalinski is entitled to qualified

immunity. See Pearson v. Callahan, 555 U.S. 223, 232 (2009).

IV. CONCLUSION

In sum, for the reasons stated herein, the Court denies Plaintiff’s

motion for summary judgment and grants summary judgment for Dr. Kalinski.

ORDER

IT IS, THEREFORE, ORDERED that Plaintiff's Motion for Summary

Judgment [Doc. 73] is DENIED; Defendant’s Motion for Summary Judgment

[Doc. 76] is GRANTED; and this action is dismissed with prejudice.

The Clerk is respectfully instructed to terminate this action.

Signed: January 13, 2021

a wail

< Reidinger ey

Chief United States District Judge eal

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