# Nichols v. Gamewell

> District Court, W.D. North Carolina · August 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10257299

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** August 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:19-cv-00055-MR
JONATHAN NICHOLS, )
)
Plaintiff, )
)
vs. ) MEMORANDUM OF
) DECISION AND ORDER
MARILYN GAMEWELL, et al., )
)
Defendants. )
________________________________ )
THIS MATTER comes before the Court on Defendants’ Motions for
Summary Judgment [Docs. 48, 60], Defendant Gamewell’s Motion to Seal
[Doc. 55]; and Defendants Fox and Harris’ Motion for Extension of Time
[Doc. 59].
I. PROCEDURAL BACKGROUND
Pro se Plaintiff Jonathan Nichols (“Plaintiff”) was formerly a prisoner of
the State of North Carolina. Plaintiff was recently released from prison. [See
Doc. 64]. Plaintiff filed a Complaint on May 8, 2019, pursuant to 42 U.S.C.
§ 1983, asserting claims of deliberate indifference to a serious medical need
against Alexander Correctional Institution (“Alexander”) employees Nurse
Practitioner Marilyn Gamewell, Nurse Renee Harris, and Nurse Christine Fox
related to treatment of Plaintiff’s sickle cell anemia at Alexander.1 For
injuries, Plaintiff claims that he has “been living in constant physical agony

for two years with the added fear of ‘sudden death’ due to Defendants[’]
refusal to treat me!!” [Doc. 1 at 10 (emphasis in original)]. Plaintiff seeks
monetary damages and injunctive relief, including an order “instructing

Defendants to provide ‘proper and adequate’ treatment” as directed by
Plaintiff’s former doctor. [Id. at 10].
Defendant Gamewell moved to dismiss Plaintiff’s Complaint for failure
to state claim upon which relief may be granted under Rule 12(b)(6) of the

Federal Rules of Civil Procedure. [Doc. 20]. The Court denied this motion,
finding that Plaintiff did allege an Eighth Amendment claim for deliberate
indifference to Plaintiff’s serious medical needs. [Doc. 40].

All Defendants have now moved for summary judgment. [Docs. 48,
60]. In support of her summary judgment motion, Defendant Gamewell
submitted a memorandum, her responses to Plaintiff’s discovery requests,
her own Affidavit, Plaintiff’s Offender Information Report, Plaintiff’s external

movement log, and 3,557 pages of Plaintiff’s medical record. [Docs. 50, 50-
1 through 50-7, and 51-54]. Defendant Gamewell also moved to seal

1 Defendant North Carolina Department of Public Safety (NCDPS) Grievance Officer
Wakenda Greene was dismissed on initial review for the reasons stated in the Court’s
Order. [Doc. 9].
Plaintiff’s medical record submitted in support of her motion. [Doc. 55].
Defendants Fox and Harris submitted a memorandum and their own

Affidavits in support of their summary judgment motion.2 [Docs. 61, 62-1,
62-2].
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. 63]. The Plaintiff was
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,

2 Defendants Fox and Harris timely moved for an extension of the deadline to file their
summary judgment motion, [Doc. 59], which the Court will grant here.
i.e., in the form of affidavits or unsworn declarations.” [Id. at 2 (citing Fed. R.
Civ. P. 56(c)(4))]. Plaintiff did not respond to Defendants’ summary judgment

motions.3 Plaintiff’s Complaint, however, was submitted under penalty of
perjury. The allegations therein made on Plaintiff’s personal knowledge,
therefore, are to be considered for their evidentiary value here.4

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

3 The Court’s Roseboro Order was returned as undeliverable because Plaintiff had been
released from custody but had not (and still has not) notified the Court of his new address.
[See Doc. 64].

4 The Fourth Circuit recently made clear that a district court is to consider verified prisoner
complaints as affidavits on summary judgment “when the allegations contained therein
are based on personal knowledge.” Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir.
2021).
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. Facts, however, “must be

viewed in the light most favorable to the nonmoving party only if there is a
‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380
(2007). As the Supreme Court has emphasized,

“[w]hen the moving party has carried its burden under
Rule 56(c), the opponent must do more than simply
show there is some metaphysical doubt as to the
material facts …. 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.’”
Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87, 106 S. Ct. 1348 (1986)
(footnote omitted). “[T]he mere existence of some
alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-28, 106 S. Ct.
2505 (1986). When opposing parties tell two
different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for
summary judgment.

Scott, 550 U.S. at 380. “[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.
III. FACTUAL BACKGROUND
The Plaintiff in his verified Complaint has alleged as follows. After

Plaintiff arrived at Alexander in May 2017, Defendants Gamewell and Harris
interfered with Plaintiff’s medications and scheduled treatments previously
prescribed by Plaintiff’s physician, Dr. Osunkwo. [Doc. 1 at 3]. Dr. Osunkwo,

a specialist in sickle cell disease and the Medical Director of the sickle cell
disease program at the Levine Cancer Institute, had been treating Plaintiff
for sickle cell anemia, a life-threatening disease, for several years and knew
“better than anyone” what treatments Plaintiff needed. [Id. at 3-4, 6].

Defendant Gamewell put Plaintiff’s life in “grave danger” by refusing to follow
the treatment plan established by Dr. Osunkwo. [Id. at 4]. Plaintiff received
red blood cell transfusions only twice in the two years before filing his

Complaint, although he should have been receiving them every month. [Id.].
Furthermore, Defendants Gamewell and Harris refused to provide Plaintiff
with prescribed medications that are “vital to [his] livelihood.” [Id. at 5].
These allegations constitute Plaintiff’s forecast of evidence only to the

extent they are based on personal knowledge. However, the allegations
regarding Plaintiff’s medical history and treatment are plainly contradicted by
his undisputed medical record which is before the Court. The Court,
therefore, cannot adopt Plaintiff’s allegations for purposes of this motion.
See Scott, 550 U.S. at 380.

The relevant forecast of evidence, taken in the light most favorable to
the Plaintiff, shows the following. From May 2017 to August 2019, Plaintiff
was incarcerated at Alexander. [Doc. 50-5 at 1]. Defendant Gamewell is

Nurse Practitioner licensed to practice in North Carolina. [Doc. 50-3 at ¶ 3:
Gamewell Aff.]. Gamewell is an NCDPS employee currently working as a
Nurse Practitioner at Alexander. [Doc. 50-3 at ¶ 4]. As a Nurse Practitioner,
Gamewell provides acute and chronic medical care for Alexander’s inmates

and supervises medical staff. [Id. at ¶ 5]. Defendant Gamewell directly
treated or supervised treatment of Plaintiff multiple times during his
incarceration at Alexander. [Id. at ¶ 6]. Defendant Fox is a Nurse Supervisor

at Alexander, [Doc. 62-1 at ¶ 6: Fox Aff.], and Defendant Harris is a Charge
Nurse at Alexander, [Doc. 62-2 at ¶ 4: Harris Aff.]. Defendants Fox and
Harris held these positions at the relevant times. [Doc. 62-1 at ¶ 6; Doc. 62-
2 at ¶ 4].

Plaintiff suffers from sickle cell disease. [Doc. 51 at 1]. Sickle cell
disease is a genetic blood disorder that leads to progressive damage to
various organs, a shortened life span, and recurrent intermittent

unpredictable bouts of acute pain (“pain crisis”) that leads to progressive and
persistent chronic pain. [Doc. 51 at 1]. While at Alexander, Plaintiff received
outside specialist care for this condition, initially from the Levine Cancer

Institute and later from the UNC Hematology Clinic. [See Doc. 51 at 1-4;
Doc. 52 at 353]. Specifically, Plaintiff received apheresis, or red blood cell
exchange transfusions, to treat his sickle cell anemia. To facilitate these

transfusions, Plaintiff had central venous access ports that had to be flushed
once per month. [Doc. 51 at 2-3].
Dr. Osunkwo began treating Plaintiff’s sickle cell disease in January
2015. [Doc. 51 at 1]. In March 2015, Plaintiff started monthly red blood cell

exchange transfusions under Dr. Osunkwo’s care. [Doc. 51 at 3]. On June
15, 2017, Plaintiff complained to Defendant Gamewell that he wanted a
higher dose of his pain medication, Tramadol. [Doc. 51 at 307]. Defendant

Gamewell advised Plaintiff that his dose had just been increased the
previous month to the highest allowed dose. [Id.]. At this time, Defendant
Gamewell also advised Plaintiff that a recent Utilization Review (UR)
Request5 for exchange transfusions at the Levine Cancer Institute had been

5 A Utilization Review (UR) Request 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.” [NCDPS Health Services Policy & Procedure Manual,
Utilization Management Policies].
approved. Plaintiff, however, was angry that his pain medication would not
be increased. Plaintiff reportedly told Defendant Gamewell that he would not

allow anyone to flush his port after that day. Defendant Gamewell advised
Plaintiff that this may cause the port to clog. Plaintiff replied, “whatever,” and
left the room. [Id.].

On June 26, 2017, Dr. Osunkwo paused Plaintiff’s transfusions until
Plaintiff could return for a consultation in August 2017. [Doc. 51 at 319].
Defendant Gamewell, therefore, recommended that a UR Request be
entered for Plaintiff to return to Dr. Osunkwo in August 2017. [Doc. 51 at

325]. On August 4, 2017, Plaintiff returned to Dr. Osunkwo. [Doc. 51 at 466].
At that time, Dr. Osunkwo recommended resumption of Plaintiff’s monthly
transfusions and certain changes to Plaintiff’s medications. [Doc. 51 at 469-

71]. Thereafter, Defendant Gamewell entered the UR Requests for monthly
transfusions and the orders for the medications and other treatments as
directed by Dr. Osunkwo. [Doc. 51 at 527-29, 537-39]. Plaintiff received
transfusions every month between August 2017 to February 2018 in

accordance with Dr. Osunkwo’s recommendations. [Doc. 50-3 at ¶ 8].
On October 5, 2017, Plaintiff was hospitalized after complaining of
severe leg pain. [Doc. 51 at 719, 723, 732; see Doc. 52 at 435]. Defendant

Gamewell advised that Plaintiff be taken to the nearest emergency room for
treatment. [Doc. 51 at 719]. Defendant Gamewell also entered a UR
Request for this treatment. [Id.]. Plaintiff was admitted to Carolinas Medical

Center in Charlotte, North Carolina, where he was diagnosed with a sickle
cell pain crisis. He was discharged on October 19, 2017. [See Doc. 51 at
732-793]. During this admission, Plaintiff received IV pain medications,

consultations with various specialists, numerous imaging studies, and
physical therapy. [Doc. 51 at 732-793].
Plaintiff was again admitted Carolinas Medical Center from February
1, 2018 through February 6, 2018, for a pain crisis that started during his

monthly exchange transfusion with Dr. Osunkwo. [Doc. 52 at 309-311, 436,
590]. On February 21, 2018, after this most recent hospitalization, Dr. Marta
Kalinski, an NCDPS non-defendant physician, referred Plaintiff to the UNC

Hematology Clinic to review Plaintiff’s treatment plan. [Doc. 50-3 at ¶ 9; Doc.
52 at 353; see Doc. 52 at 590]. Dr. Kalinski noted that, despite complex and
comprehensive treatment at the Levine Cancer Institute, Plaintiff’s condition
was not improving, and he was, in fact, becoming more symptomatic. [Doc.

52 at 353]. Dr. Kalinski noted that Plaintiff had frequent episodes of sickle
cell crisis with severe pain exacerbations requiring hospitalizations and
treatment with very high doses of narcotics, as well as frequent complications

and subsequent hospitalizations associated with his exchange transfusions.
[Id.]. The medical record also shows that there was a “security concern”
associated with Plaintiff’s transport to the Levine Cancer Institute, including

Plaintiff’s threats to transport officers and manipulation of Levine Cancer
Institute staff. [See Doc. 52 at 435, 590]. Defendant Fox recalls that on or
around February 21, 2018, Dr. Kalinski told her that Alexander’s Assistant

Director of Nursing received a call from custody staff stating that Plaintiff was
a security risk and that it was not safe for custody staff or the general public
for Plaintiff to continue to receive care through the Levine Cancer Institute.
[Doc. 62-1 at ¶ 8(f)]. According to Defendant Fox, Dr. Kalinski requested that

Plaintiff’s care be transferred to the UNC Hematology Clinic to address the
security issue and the “method and means of medical care.” [Doc. 62-1 at ¶
8(h)].

On April 2, 2018, after Plaintiff’s referral to UNC Hematology, Plaintiff
refused to have his port flushed. [Doc. 52 at 418]. On April 20, 2018, Plaintiff
was first seen at the UNC Hematology Clinic. [Doc. 52 at 435]. Plaintiff had
previously been a patient of the UNC Hematology Clinic in 2013 and January

2014. [Doc. 52 at 435]. In April 2018, Plaintiff’s UNC physician, Dr. Toledo-
Nieves, noted that, according to UNC’s January 2014 treatment record for
Plaintiff, Plaintiff had had a good clinical response to treatment with

hydroxyurea, which was marked by a decrease in the frequency of painful
crises. [Doc. 52 at 435]. Dr. Toledo-Nieves noted his plan to consult with
Dr. Osunkwo and recommend resumption of hydroxyurea treatment versus

exchange transfusions.6 [Doc. 52 at 435-36]. On August 29 and September
4, 2018, Plaintiff failed to present for bloodwork appointments at Alexander.
[Doc. 52 at 651, 661].

On September 28, 2018, Plaintiff experienced another sickle cell pain
crisis and was transported to the emergency room at the Catawba Valley
Medica Center (CVMC). [Doc. 52 at 725]. He was admitted for treatment
after his pain was not adequately managed in the emergency room. [Doc.

52 at 722-23]. Plaintiff was discharged in good condition on October 3, 2018.
[See Doc. 52 at 730]. Plaintiff was again hospitalized at CVMC from October
22, 2018 to October 25, 2018 for pain management related to another sickle

cell pain crisis. [See Doc. 52 at 804]. Plaintiff attended a follow up
appointment at UNC Hematology on October 26, 2018 and was ordered to
return for follow up care in three months. [Doc. 52 at 760-61, 803-4].
Plaintiff then returned to UNC Hematology for a follow up visit on

January 25, 2019. [Doc. 53 at 110-121]. Plaintiff then returned to UNC

6 Although Defendant Gamewell attests that Plaintiff received exchange transfusions at
UNC Hematology in April and June of 2018, [Doc. 50-3 at ¶ 9], the medical record does
not support this statement. Rather, a record from a January 25, 2019 visit to UNC
Hematology reflects that Plaintiff last received a transfusion in February 2018 while under
Dr. Osunkwo’s care. [See Doc. 53 at 113].
Hematology on April 26, 2019 for his three-month follow up. [Doc. 53 at 284].
Plaintiff’s physician noted that, “[Plaintiff] is frustrated that the [hydroxyurea]

isn’t helping and we discussed his pain patterns and he actually hasn’t had
any crisis episodes” recently. [Doc. 53 at 286].
Plaintiff filed his Complaint in this matter on May 8, 2019. [Doc. 1]. On

June 13, 2019, Plaintiff was seen at CVMC for further pain management and
treatment, but he was discharged the same day and his lab results were
noted to be “reassuring.” [Doc. 52 at 376-379]. On July 1, 2019, Plaintiff
again visited CVMC for pain treatment. He was released from care after only

a few hours. [Doc. 53 at 420-24]. On August 30, 2019, Plaintiff was
transferred from Alexander to Mountain View Correctional Institution. [Doc.
50-5 at 1]. Plaintiff returned to UNC Hematology for follow up on or about

September 12, 2019. [See Doc. 52 at 602-609]. According to the medical
record before the Court, Plaintiff’s providers at UNC Hematology did not
recommend or perform an exchange transfusion to treat Plaintiff’s sickle cell
disease at any time.

At all times relevant to this matter, Defendant Gamewell was not
involved in coordinating Plaintiff’s sickle cell disease care with the UNC
Hematology Clinic or with specialists at the Levine Cancer Institute. [Doc.

50-3 at ¶ 10]. Defendant Gamewell never ignored, refused to implement, or
failed to fulfill an outside specialist’s prescribed course of treatment for
Plaintiff. [Doc. 50-3 at ¶ 11]. Rather, she was responsive to the specialists’

orders and recommendations and to Plaintiff’s complaints of pain. [Doc. 51
at 307, 337, 390, 421, 453, 461, 527-29, 537-37]. Moreover, Defendant
Gamewell was never aware of Plaintiff not being scheduled for or not

receiving care approved by and prescribed by his outside specialists for his
sickle cell disease. [Doc. 50-3 at ¶ 13]. Plaintiff, on the other hand, refused
care necessary to facilitate his transfusions on multiple occasions, including
refusing to allow nursing staff or other healthcare providers to flush his

venous port. [Doc. 50-3 at ¶ 14]. Plaintiff also refused analgesic pain
medications, blood pressure medications, and other more conservative
methods for treating his pain. [Doc. 50-3 at ¶ 15].

As a Nurse Supervisor, Defendant Fox was not involved with Plaintiff’s
direct patient care. [Doc. 62-1 at ¶ 8(a)]. Defendant Fox, however, is very
familiar with Plaintiff because he often submitted his medical concerns
through the grievance process. [Doc. 62-1 at ¶ 8(a)]. As Nurse Supervisor,

Defendant Fox was responsible for responding to all step one medical
grievances. [Doc. 62-1 at ¶ 8(b)]. Defendant Fox was also familiar with the
Plaintiff because Plaintiff had frequent emergency room visits and, as Nurse
Supervisor, Fox reviewed the reports generated from these visits. [Doc. 62-
1 at ¶ 8(c)].

Defendant Harris has few, if any, specific recollections of direct
treatment of Plaintiff. [Doc. 62-2 at ¶ 6(a)]. Defendant Harris was not aware
at any time during Plaintiff’s incarceration at Alexander that he was receiving

transfusions. [Doc. 6-2 at ¶ 6(b)]. Defendant Harris was not involved in the
decision to transfer Plaintiff’s care to UNC Hematology. [Doc. 62-2 at ¶ 8(f)].
As nurses, Defendants Fox and Harris could not prescribe medications or
treat inmates, including Plaintiff, without a provider’s order. [Doc. 62-1 at ¶

8(e); Doc. 62-2 at ¶ 8(e)].
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 Defendants 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, a disagreement between

Plaintiff and Dr. Kalinski, a non-defendant, regarding whether Plaintiff’s care
should have been transferred to the UNC Hematology Clinic. See Wright,
766 F.2d at 849. The forecast of evidence reflects that Plaintiff’s NCDPS
providers, including Defendant Gamewell, provided and facilitated care in

accordance with the orders and recommendations of Plaintiff’s outside
specialists and that Defendants Fox and Harris were not involved in any
relevant direct patient care of Plaintiff. Moreover, the forecast of evidence

does not suggest that any Defendant interfered with the treatment ordered
by Plaintiff’s specialists. The forecast of evidence also shows that
Defendants had no influence over the transfer of Plaintiff’s sickle cell disease

care from Dr. Osunkwo to the UNC Hematology Clinic or what care was
ordered by Plaintiff’s providers at the UNC Hematology Clinic. Finally, the
forecast of evidence shows that the decision to transfer Plaintiff’s care was

due, at least in part, to security concerns created by Plaintiff himself.
In sum, the total forecast of evidence (which includes 3,557 pages of
medical records) does not support Plaintiff’s assertion that Defendants 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). Rather, the record plainly supports that “the prison
medical authorities [ ] made a sincere and reasonable effort to handle the
prisoner’s medical problems.” Stokes, 393 F. Supp. at 763. The forecast of

evidence on Plaintiff’s claims against Defendants, therefore, is insufficient to
go to a jury on a § 1983 claim under the Eighth Amendment. Summary
judgment is, therefore, appropriate.7

Additionally, Defendants are 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 Defendants’
conduct violated any constitutional right, they are entitled to qualified

immunity. See Pearson v. Callahan, 555 U.S. 223, 232 (2009).
IV. Defendant Gamewell’s Motion to Seal
Defendant Gamewell, through counsel, moves the Court to seal the

Plaintiff’s medical records she submitted in support of her summary
judgment motion, “to comply with the Health Insurance Portability and
Accountability Act of 1996” and to protect Plaintiff’s individually identifiable
health information. [Doc. 55]. Defendant Gamewell filed these documents

under seal. [See Docs. 51-54].

7 Plaintiff’s claim for injunctive relief is also moot and will be dismissed because Plaintiff
is no longer in custody. Incumaa v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007).
Before sealing a court document, the Court must “(1) provide public
notice of the request to seal and allow interested parties a reasonable

opportunity to object, (2) consider less drastic alternatives to sealing the
documents, and (3) provide specific reasons and factual findings supporting
its decision to seal the documents and for rejecting the alternatives.”

Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000). In the present
case, the public has been provided with adequate notice and an opportunity
to object to the Defendant Gamewell’s motion. Defendant filed her motion in
February 2021, and it has been accessible through the Court’s electronic

case filing system since that time. Moreover, the public’s right of access to
Plaintiff’s medical record is substantially outweighed by the Plaintiff’s
competing interest in protecting the details of such information. Having

considered less drastic alternatives to sealing these particular documents,
the Court concludes that sealing these records is necessary to protect the
Plaintiff’s privacy interests. As such, the Court will grant Defendant
Gamewell’s motion to seal and order that Plaintiff’s medical record remain

under seal.
V. CONCLUSION
For all the foregoing reasons, Defendants’ motions for summary

judgment, Defendant Gamewell’s motion to seal, and Defendants Fox and
Harris’ motion for extension of time are granted.
ORDER
IT IS, THEREFORE, ORDERED Defendants’ Motions for Summary
Judgment [Docs. 48, 60] are GRANTED; and this action is dismissed with
prejudice.
IT IS FURTHER ORDERED that Defendant Gamewell’s Motion to Seal
[Doc. 55] is GRANTED and the documents filed at Docket Numbers 51-54
shall remain sealed.
IT IS FURTHER ORDERED that Defendants’ Fox and Harris’ Motion
for Extension of Time [Doc. 59] is GRANTED.
The Clerk is respectfully instructed to terminate this action.
IT IS SO ORDERED.

Signed: August 2, 2021
Se ee
Chief United States District Judge AS

22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10257299. Public record. Not legal advice.