Moore v. Lassiter

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:20-cv-00058-MR

BENSON MOORE, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

KENNETH LASSITER, et al., )

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on the Motions for Summary

Judgment filed by Defendants Mike Slagle, Norma Melton, Brandon Barrier,

Gladys Jean Campbell [Doc. 87] and Defendant Jeffrey Patane [Doc. 94].

I. BACKGROUND

The incarcerated Plaintiff Benson Moore, proceeding pro se, is

presently incarcerated in the North Carolina Department of Adult Corrections

(“NCDAC”).1 He filed this civil rights action in the United States District Court

for the Middle District of North Carolina, addressing incidents that allegedly

occurred while he was incarcerated at multiple correctional institutions.

[Doc. 2: Compl.]. The Middle District dismissed all of the claims save for

1 NCDAC was previously called the North Carolina Department of Public Safety

(“NCDPS”). These terms are used interchangeably in this Order.

those that allegedly occurred at the Mountain View CI (“MVCI”), and

transferred the case to this Court where venue lies for the remaining claims.

[See Doc. 12: Transfer Order].

Upon transfer, this Court reviewed the verified Complaint2 for frivolity.

[Doc. 2: Compl.]. The Plaintiff’s claims pursuant to 42 U.S.C. § 1983 passed

initial review for deliberate indifference to a serious medical need against

Defendants Slagle, Melton, Barrier, and Campbell. [Doc. 19: Initial Rev.

Compl.]. The Plaintiff’s verified Supplemental Complaint subsequently

passed initial review against these Defendants for alleged acts of deliberate

indifference to a serious medical need that occurred after the date the

Complaint was filed. [Doc. 41: Supp. Compl.; Doc. 40: Initial Rev. of Supp.

Compl.]. The Plaintiff filed an unverified Second Amended Complaint3 that

again passed initial review against these Defendants, and it also passed

initial review against Defendant Patane4 for deliberate indifference to a

serious medical need. [Doc. 55: Second Am. Compl.; Doc. 60: Initial Rev.

2 While the Complaint refers to a number of “exhibits,” the documents attached to the

Complaint are not labelled in accordance with the mentioned exhibits, nor do the

documents appear to correspond to the exhibits described in the Complaint.

3 The Second Amended Complaint purports to incorporate by reference several

paragraphs of the Complaint that do not exist. [See, e.g., Doc. 55: Second Am. Compl. at

8, 10-11 (referring to Doc. 2 at ¶¶ 230, 245, 260, 261, 272)].

4 Patane is employed through Consilium Staffing. [Doc. 113: Patane Decl. at ¶ 3].

Second Am. Compl.]. The Plaintiff generally alleges that the Defendants

disbelieved and inadequately treated his complaints of pain while he resided

at MVCI. [Doc. 55: Second Am. Compl.].

The Defendants filed Motions for Summary Judgment. [Docs. 87:

MSJ; Doc. 94: Patane MSJ]. Thereafter, the Court entered Orders in

accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising

Plaintiff of the requirements for filing responses to the summary judgment

motions and of the manner in which evidence could be submitted to the

Court. [Docs. 90, 115: Roseboro Orders]. The Plaintiff filed an Affidavit and

supporting materials opposing summary judgment. [Doc. 116: Plaintiff’s

Affid.; Doc. 117: Response Ex]. These matters, therefore, are ripe for

disposition.

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. To that end, only evidence admissible at trial may be considered by the

Court on summary judgment. Kennedy v. Joy Technologies, Inc., 269 F.

App’x 302, 308 (4th Cir. 2008) (citation omitted).

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, 127

S.Ct. 1769, 1776 (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.

III. FACTUAL BACKGROUND

The relevant forecast of evidence, viewed in the light most favorable to

the Plaintiff, shows the following.5

The events at issue occurred at MVCI where Mike Slagle is the

Warden. [Doc. 89-1: Slagle Decl. at ¶ 2]. Slagle is a nonmedical employee

who lacks access to medical records. [Id. at ¶ 6-8]. He cannot modify medical

restrictions or accommodations, or control prison transfers. [Id. at ¶¶ 3-8].

Physician Assistant (“PA”) Jeffrey Dean Patane provided care and

medical oversight at MVCI. [Doc. 113: Patane Decl. at ¶¶ 2, 4]. PA Patane,

however, “had no control of setting outside provider appointments or control

[of] the timing of those appointments,” and he could not discipline inmates.

[Id. at ¶¶ 24, 28(h)]. Nurse Supervisor Melton supervised facility nursing

staff, provided clinical and administrative consultation, and ensured that

adequate health care was provided to inmates. [Doc. 89-9: Melton Decl. at

¶ 2; see Doc. 17-1 at ¶ 4]. Campbell and Barrier were nurses. [Doc. 89-22:

Campbell Decl. at ¶ 2; Doc. 89-3: Barrier Decl. at ¶ 2].

5 The Court will not attempt to exhaustively address the voluminous materials, including

medical records, that the parties have filed. The Court highlights the relevant forecast of

evidence and the factual discrepancies between the parties’ accounts of the incidents.

Materials that are irrelevant or unreliable have been omitted from this section. [See, e.g.,

Docs. 116-1 at 1, 117 at 1 (declaration of a certified medical assistant that Plaintiff

describes as an “Expert Opinion”)].

MVCI was an acuity level 2A/B facility that administered medications

and provided medical treatment at the clinical level. [Doc. 89-1: Slagle Decl.

at ¶ 3]. Inmates submitted written sick call requests to be evaluated by

nursing staff and, if indicated, they were scheduled to see a physician,

physician assistant, or nurse practitioner. [Doc. 113: Patane Decl. at ¶¶ 12-

13]. Specialty care was not provided at MVCI. [Id. at ¶ 22]. Outside care

was purchased by NCDPS through the UR (“Utilization Review”) process.

[Id.]. Outside providers would submit UR requests, which would then be

reviewed based on NCDPS policies and guidelines. [Id. at ¶ 23]. If a NCDPS

provider agreed with an outside provider’s recommendation, the order would

be entered into the inmate’s chart. [Id. at ¶ 16].

The Plaintiff broke his femur in 1995, and it was surgically repaired.

[Doc. 2: Complaint at ¶ 2]. The Plaintiff’s 31-year sentence commenced in

2003. [Doc. 89-1: Slagle Decl. at ¶ 3]. After the Plaintiff entered NCDPS, he

began receiving x-rays, over-the-counter medication, and accommodations

for severe “pains [that] were assumed to be associated with his …” prior

surgery. [Doc. 2: Complaint at ¶¶ 4-6]. He was told that “there is probably

arthritis in the injured leg [and the] possibility of always having pains.” [Id. at

¶ 5]. The Plaintiff saw multiple specialists, including an orthopedist, and he

received treatment and medication including Tramadol,6 for pain. [Doc. 113:

Patane Decl. at ¶¶ 19, 28(a); Doc. 89-4: MSJ Ex at 9 (Dec. 1, 2017 Clinical

Encounter)]. His reports of pain continued despite treatment.7 [Doc. 113:

Patane Decl. at ¶ 19, 28(a)].

Chronic pain is multi-factorial. [Id. at ¶ 19]. The amount of time that is

required for a clinician to find an appropriate treatment varies greatly

depending on the number of medical issues present, and their severity and

complexity. [Id.]. There are certain conditions that cannot be completely

cured or remedied with modern medicine. [Id.].

Between December 1, 2017 and December 30, 2019, while the Plaintiff

resided at MVCI, the Plaintiff had 59 sick calls, eight dental sick calls, six

self-declared medical emergencies, radiology including MRIs and x-rays,

and five outside medical provider appointments that included treatment such

as joint injections. [Doc. 89-21: Murphy Decl. at ¶ 3; Doc. 2: Complaint at ¶¶

129, 190; Doc. 41: Supp. Compl. at ¶¶ 216, 218; Doc. 110: Patane Ex at 1].

6 The opiate narcotic Tramadol is a Schedule IV controlled substance that may be habit-

forming, especially with prolonged use. See United States v. Hasson, 26 F.4th 610, 612

(4th Cir. 2022); 21 U.S.C. § 821(b)(4); [Doc. 113: Patane Decl. at ¶ 28(a)]. The Plaintiff

received Tramadol in NCDPS between October 2016 and July 2017. [Doc. 113: Patane

Decl. at ¶ 28(a)].

7 The Plaintiff now describes Tramadol as “effective.” [Doc. 116: Plaintiff’s Affid. at ¶ 7].

When the Plaintiff was transferred to MVCI on December 1, 2017, he

was a level 2A inmate requiring medications only. [Doc. 89-1: Slagle Decl.

at ¶ 3; Doc. 113: Patane Decl. at ¶ 10]. The Plaintiff presented in a

wheelchair for his initial intake assessment. [Doc. 89-4: MSJ Ex at 9; Doc.

89-4: MSJ Ex at 9-12]. Patane examined the Plaintiff, took his history, and

reviewed a recent MRI showing “mild spondylosis/facet arthrosis resulting in

mild central canal stenosis, and mild left L4-5 foraminal narrowing….” [Doc.

89-4: MSJ Ex at 9]. The medical records revealed “no organic cause for his

continued hip pain, which made treatment difficult.” [Doc. 113: Patane Decl.

at ¶ 20]. The Plaintiff’s history and the physical exam findings were

“discordant….” [Id. at ¶ 25(a); Doc. 89-4: MSJ Ex at 11 (Dec. 1, 2017 Clinical

Encounter)]. Patane was concerned that the Plaintiff’s use of a wheelchair

at his relatively young age (40) would exacerbate his condition and pain.

[Doc. 113: Patane Decl. at ¶ 26(b)]. Based on that, and “given relatively

benign MRI findings and unimpressive findings” at intake, Patane requested

a neurological assessment. [Id.; Doc. 89-4: MSJ Ex at 11 (Dec. 1, 2017

Clinical Encounter)].

Patane and Melton told the Plaintiff that his pain was “psychological

due to [his] lengthy sentence.” [Doc. 5: Plaintiff’s Decl. at ¶¶ 2, 7; Doc. 2:

Compl. at ¶ 102; Doc. 116: Plaintiff’s Affid. at ¶ 4]. Patane said that the

Plaintiff was “not in as much pain as he claims” and that they would be

requesting a second opinion “due to [the Plaintiff] being a 40 year old African-

American.” [Doc. 5: Plaintiff’s Decl. at ¶ 7; Doc. 11: Mo. to Amend at 2; Doc.

27: Mo. to Alter/Amend ¶ 4]. Patane said that the Plaintiff should see a

psychiatrist, but no referral was provided. [Doc. 2: Compl. at ¶ 102; Doc. 5:

Plaintiff’s Decl. at ¶ 7; Doc. 116: Plaintiff’s Affid. at ¶ 4]. The Plaintiff could

have sought mental health counseling himself. [Doc. 113: Patane Decl. at ¶

25(e); see, e.g., Doc. 17-1: Plaintiff’s Decl. at ¶ 8 (at MVCI, Plaintiff submitted

four mental health referrals)].

The Plaintiff had “multiple extra items” at intake at MVCI, including: an

air mattress, ice, an extra pillow, a special mattress, thermal underwear, and

an extra blanket. [Doc. 89-4: MSJ Ex at 11 (Dec. 1, 2017 Clinical Encounter);

Doc. 113: Patane Decl. at ¶ 25(b)]. Patane was “not aware of any disability

or medical indication that Plaintiff had requiring these extra items,” so they

were removed.8 [Doc. 113: Patane Decl. at ¶ 25(b)]. On December 4, 2017,

the Plaintiff made a medical emergency call for pain; when he saw Barrier,

he told her that he wanted his “extra stuff” back. [Doc. 89-3: Barrier Decl. at

8 The Plaintiff attributes the removal of accommodations to Melton and Patane [Doc. 5 at

¶¶ 2, 7], and alternately to Patane only. [Doc. 17-1 at ¶ 8; Doc. 116 at ¶ 2]. NCDPS

records reflect that it was Patane who adjusted the accommodations. [Doc. 89-10: MSJ

Ex at 1 (Medical Duty Status); see Doc. 89-9: Melton Decl. at ¶ 5(a); Doc. 113: Patane

Decl. at ¶ 25(a)].

¶ 3; Doc. 89-4: MSJ Ex at 2]. Barrier noted that the Plaintiff was in no

apparent distress and was able to “ambulate . . . without any difficulty....”

[Id.]. Barrier stated that the Plaintiff was not in pain and denied his

accommodation request. [Doc. 2: Compl. at ¶ 106].

While the Plaintiff arrived at MVCI with ibuprofen, shortly thereafter,

Patane switched him to a stronger medication, Diclofenac. [Doc. 113:

Patane Decl. at ¶ 25(c)]. On February 13, 2018, Dr. Gloria Liu at Duke Spine

recommended Gabapentin.9 [Doc. 2: Compl. at ¶ 123; Doc. 100: Patane Ex

at 1]. The Plaintiff did not have any condition that Gabapentin treats,

however, so Patane did not order it. [Doc. 116 at ¶¶ 6, 9; Doc. 113: Patane

Decl. at ¶ 26(d)].

The Plaintiff took Pepcid and Omeprazole due to the fact that he was

taking NSAIDs, but he had no special diet, allergies, or digestive issues

noted in his medical records. [Doc. 113: Patane Decl. at ¶ 28(g)]. On

December 5, 2017, Patane cancelled a UR request for a colonoscopy

because it was not indicated by the Plaintiff’s age, “[past medical history] and

[history of present illness] and exam findings….” [Id.; Doc. 17-7: Decl. Ex at

4]. A UR request was submitted for a colonoscopy in February 2020 when

9 Also referred to as Neurontin. Gabapentin is sometimes used to treat neuropathic pain.

[Doc. 113: Patane Decl. at ¶ 26(d)].

the Plaintiff reported symptoms. [Doc. 113: Patane Decl. at ¶ 28(g)]. The

Plaintiff received a colonoscopy in late 2020, which revealed a small polyp

but required no dietary restrictions. [Id.].

The Plaintiff had a lumbar MRI on March 9, 2018. [Doc. 2: Compl. at

¶ 129]. On June 22, 2018, officers overheard Dr. Liu at Duke Spine tell the

Plaintiff that there was “no medical reason he cannot walk.” [Doc. 89-9:

Melton Decl. at ¶ 11; see Doc. 17-4: Plaintiff Ex at 3-4 (Witness Statements)].

This was the same conclusion that Patane had reached on intake. [Doc. 89-

5: MSJ Ex at 6]. On July 13, 2018, Patane cancelled a UR request for a

neurological assessment because the Plaintiff “return[ed] from Duke Ortho

w/orders to [return to clinic] oct 2018.” [Doc. 17-7: Decl. Ex at 2 (July 13,

2018 Clinical Encounter)]. For the next two years, Patane continued to deny

“effective” pain medication, and to prescribe the Plaintiff two “ineffective”

NSAIDs, despite the Plaintiff’s “digestive issues.” [Doc. 116: Plaintiff’s Affid.

at ¶ 10; Doc. 11: Mo. to Amend at 2].

Nurse Campbell saw the Plaintiff on December 19, 2018 on a medical

emergency call for pain. [Doc. 2: Compl. at ¶ 173]. At that time, the Plaintiff

said that it was “the same pain I’ve had since being in this prison.” [Doc. 89-

22: Campbell Decl. at ¶ 4]. Campbell told the Plaintiff that his “pains won’t

kill him” and refused to assess him because he did not meet the criteria for

an emergency. [Doc. 2: Compl. at ¶ 173; Doc. 89-22: Campbell Decl. at ¶

4].

On February 4, 2019, Dr. Liu administered a corticosteroid injection

and recommended Meloxicam. [Doc. 2: Compl. at ¶ 190]. On April 15, 2019,

Dr. Liu administered facet joint injections. [Doc. 110: Patane Ex at 1]. The

Plaintiff continued to request stronger pain medications at MVCI; Barrier

denied these requests and expressed skepticism about the Plaintiff’s reports

of pain. [See, e.g., Doc. 11: Mo. to Amend at ¶ 207 (on April 12, 2019, Barrier

said “you’re faking and you’re not getting anything other than Tylenol or

Ibuprofen”); Doc. 2 at ¶ 200 (on Feb. 28, 2019, Barrier told Plaintiff that he

had been prescribed Tylenol 500 and “moxelcam [sic]” and “you can walk

just fine”); Doc. 89-5 at 2 (Feb. 28, 2019 Clinical Encounter noting that

Plaintiff had not picked up his Tylenol and Mobic, stating “I want something

better”); Doc. 41: Supp. Compl. at ¶¶ 207 (April 12, 2019, stating “you’re

faking and you’re not getting anything other than Tylenol or Ibuprofen”), 224

(July 6, 2019, stating the Plaintiff was “fine” on emergency sick call for a fall,

despite a “knot and dried up blood”); Doc. 78-1: Plaintiff’s Decl. at ¶ 7 (Barrier

stating “we know you’re faking, we got pictures of you,” and “just stop the

bullshit and stop wasting our time, nothing going to be done for you here”)].

On March 21, 2019, Dr. Liu again recommended Gapabentin. [See

Doc. 89-19: MSJ Ex at 1 (March 25, 2019 Clinical Encounter)]. Patane

requested a UR review of the Plaintiff’s file on March 25 because Patane

was “uncertain as to whether additional specialty consultation would have

any clinical and/or effect outcome.” [Id.]. UR instructed MVCI to manage

the Plaintiff “on site for now.” [Doc. 101: Patane MSJ Ex at 2 (UR Summary)].

On August 19, 2019, Patane requested Tramadol because “first line”

medications did not work and the Plaintiff continued to claim intractable pain;

UR approved the request. [Doc. 113: Patane Decl. at ¶ 28(a)]. The Plaintiff,

however, failed to sign a pain contract,10 so Patane did not order the

Tramadol. [Id. at ¶ 28(c); Doc. 104: Patane Ex at 1 (Oct. 4, 2019 Clinical

Encounter no-show); Doc. 106: Patane Ex at 1 (Nov. 8, 2019 Clinical

Encounter “no further work-up or [treatment] would be recommended” unless

Plaintiff signs a pain contract)].

In July and August 2019, the Plaintiff underwent psychological testing

that showed possible malingering. [Doc. 111: Patane Ex at 1, 5]. The testing

provider noted that individuals with scores like the Plaintiff’s typically have

“great feelings of hostility and aggression,” they “tend[] to be belligerent and

10 Patane has inmates sign a pain contract before they start taking Tramadol because it

may be habit-forming. [Doc. 113: Patane Decl. at ¶ 28(a)].

abrasive,” and they “present with somatic concerns, which at times can be

so intense that they border on being delusional.” [Id.]. The Plaintiff’s

treatment was further complicated because the Plaintiff refused to cooperate

with treatment, show up for appointments, and participate in his care. [Doc.

113: Patane Decl. at ¶ 21; Doc. 89-19 at 1 (March 25, 2019 Clinical

Encounter); Doc. 89-5 at 5 (Feb. 19, 2019 Clinical Encounter noting “no

show[s]”); Doc. 11 at ¶ 234 (July 29, 2019 refusal to see Patane)].

Barrier continued to express skepticism about the Plaintiff’s pain, and

he refused to see the Plaintiff when the Plaintiff took too long to arrive for

sick calls or was unable to step onto a scale unassisted. [Doc. 41: Supp.

Compl. at ¶¶ 245 (Sept. 25, 2019 refusal), 291 (July 14, 2021 no-show); 251

(Oct. 11, 2019, denying stronger medication because “pains are all in your

head”)].

On November 8, 2019, Patane told the Plaintiff that he was tired of the

Plaintiff’s sick calls, was “done” with him, and would not provide any more

medication. [Id. at ¶¶ 208, 260]. When the Plaintiff again requested

Tramadol, Patane threw the Plaintiff out of his office; this resulted in the

Plaintiff’s placement in solitary confinement for causing a disturbance. [Id.

at ¶¶ 261, 264]. The Plaintiff ultimately received Gabapentin and Tramadol

from another prison provider in mid-2021. [Id. at ¶¶ 290, 300)].

The Plaintiff and his family expressed their concerns to Nurse

Supervisor Melton and Warden Slagle about the Plaintiff’s medical care at

MVCI, pain medication, accommodations, and possible transfer to another

prison. [Doc. 2: Compl. at ¶ 122 (Jan. 25, 2018 inmate request to Melton and

Slagle), 125 (Feb. 20, 2018 inmate request to Melton and Slagle), 130

(March 10, 2018 letter to Slagle), 135 (May 1, 2018 phone call with Melton),

154 (Oct. 23, 2018 phone call with Melton), 156 (Oct. 25, 2018 phone call

with Slagle)]. Melton told the Plaintiff’s family that she thought that the

Plaintiff’s “pains are not serious.” [Id. at ¶ 154 (Oct. 23, 2018 comment to

Plaintiff’s fiancée)]. Meetings between the Plaintiff and Melton were

unproductive and contentious. [Id. at ¶¶ 152 (Oct. 19, 2018 meeting), 186

(Jan. 24, 2019 meeting)]. The Plaintiff attempted to discuss his medical

concerns with Warden Slagle once, but Slagle walked away. [Id. at ¶ 158

(Nov. 2, 2018)].

The Plaintiff submitted five grievances addressing PA Patane, which

the Plaintiff appealed through all three steps of NCDPS’s Administrative

Remedy Procedure (“ARP”).11 [Doc. 116: Plaintiff’s Affid. at ¶ 1; see, .e.g.,

11 Patane is aware of only one fully exhausted grievance addressing him, No. 4855-2017-

HPOD-06456. [Doc. 113: Patane Decl. at ¶ 25(f)].

Doc. 2: Compl. Ex at 53-66 (Grievance No. 4855-2018-HPOD-09756); Doc.

98: Patane MSJ Ex at 1-10 (Grievance No. 4855-2017-HPOD-06456)].

IV. DISCUSSION

A. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) requires a prisoner to

exhaust his administrative remedies before filing a § 1983 action. 42 U.S.C.

§ 1997e(a). The PLRA provides, in pertinent part, that “[n]o action shall be

brought with respect to prison conditions under section 1983 of this title, or

any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are

exhausted.” Id. The PLRA’s exhaustion requirement applies to all inmate

suits about prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). “There

is no question that exhaustion is mandatory under the PLRA and that

unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S.

199, 211 (2007) (citing Porter, 534 U.S. at 524). Because exhaustion of

administrative remedies is an affirmative defense, defendants have the

burden of pleading and proving lack of exhaustion. Id. at 216.

The NCDPS has established, in its ARP, a three-step procedure

governing submission and review of inmate grievances. Moore v. Bennette,

517 F.3d 717, 721 (4th Cir. 2008). An inmate does not exhaust his

administrative remedies with the NCDPS until he completes all three steps

of the ARP. Id.

Defendant Patane contends that the claims against him, save those

addressing incidents that allegedly occurred on December 1, 2017, should

be dismissed as unexhausted. [Doc. 96: Patane MSJ Memo. at 10-12]. The

forecast of evidence shows, however, that the Plaintiff fully exhausted five

grievances addressing Defendant Patane. [See Doc. 116: Plaintiff’s Affid. at

¶ 1]. Patane has thus failed to carry his burden to demonstrate lack of

exhaustion, and summary judgment will be denied on this ground. See

Jones, 549 U.S. at 216.

B. Deliberate Indifference to a Serious Medical Need

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.

A “serious medical need” is “one that has been diagnosed by a

physician as mandating treatment or one that is so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.” Iko v.

Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (internal quotation marks omitted).

Deliberate indifference requires a showing that the defendants actually knew

of and disregarded an excessive risk to inmate health or safety. Scinto v.

Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (quoting Farmer v. Brennan,

511 U.S. 825, 834 (1994)). An official acts with deliberate indifference if he

had actual knowledge of the prisoner’s serious medical needs and the

related risks but nevertheless disregards them. DePaola v. Clarke, 884 F.3d

481, 486 (4th Cir. 2018). The prison official “must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.

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. “[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).

1. Defendants Patane, Melton, Barrier, and Campbell

The forecast of evidence demonstrates that the Plaintiff received

ongoing medical care at MVCI, including numerous sick and emergency

visits, radiology, medications, and outside appointments and treatments.

That the Plaintiff would have preferred specific medications, treatments,

appointments, and accommodations at particular times does not equate to

deliberate indifference. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir.

1985); also see Lewis v. Proctor, 2010 WL 148383, * 3 (N.D.W.Va. Jan. 12,

2010)(an inmate’s belief that one doctor’s treatment plan was better than

another’s does not state a constitutional violation); Oglesby v. Abbassi, 2013

WL 4759249, *7, n. 12 (E.D.Va. Sep. 4, 2013)(“certainly no claim is stated

when a doctor disagrees with the professional judgment of another doctor”).

While the Plaintiff claims that he was wrongfully denied certain medical

care recommended by outside providers, the Plaintiff was not entitled to

receive medications and treatments recommended by outside doctors and/or

approved by UR with which the MVCI medical personnel disagreed. The

Defendants had significantly more experience with and opportunities for first-

hand observation of the Plaintiff than the outside providers did, and the

Defendants used their clinical expertise and personal observation of the

Plaintiff to determine whether such recommendations were warranted. Their

professional disagreement with the opinions of outside medical providers

does not constitute deliberate indifference under the circumstances.

Moreover, the Plaintiff’s complaints that these Defendants’ behavior was

sometimes rude or unprofessional is insufficient to show deliberate

indifference. See Morgan v. Buncombe Cnty., No. 1:16-cv-286-FDW, 2016

WL 4585900, at *2 (W.D.N.C. Sept. 1, 2016) (“It is well settled that rudeness

and unprofessionalism by prison staff do not constitute a federal or

constitutional violation under Section 1983.”). Similarly, the Defendants’

skepticism of the Plaintiff’s reports of pain likewise fails to show deliberate

indifference rather than a mere difference of opinion. Estelle, 429 U.S. at

106; Wright, 766 F.2d at 849. Indeed, the Defendants’ skepticism of the

Plaintiff’s complaints of pain was validated by the results of the Plaintiff’s

psychological testing, which reflected malingering. [Doc. 111: Patane Ex at

1 (Psych. Tests)]. The Plaintiff’s self-serving and conclusory contentions that

the Defendants were deliberately indifferent to a serious medical need are

insufficient to create a genuine issue for trial. See Wright, 766 F.2d at

(affirming summary judgment for defendants where plaintiff was provided

with medical treatment by the defendant doctor and others on numerous

occasions despite plaintiff’s allegations that the treatment was inadequate).

To the extent that the Plaintiff contends that Defendant Melton was

deliberately indifferent in her supervisory nursing role, this necessarily fails

because there is no forecast of evidence that any underlying constitutional

violation occurred. See generally Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.

1994) (a public official may be liable for indifference or tacit authorization of

a subordinate’s misconduct); Givens v. O’Quinn, 121 F. App’x 984, 991 n.6

(4th Cir. 2005) (in the absence of an underlying constitutional violation, a

supervisory claim necessarily fails).

The Plaintiff has failed to demonstrate the existence of a genuine

dispute of material fact that Defendants Patane, Melton, Barrier, and

Campbell were deliberately indifferent to a serious medical need, and these

Defendants will be granted summary judgment on this ground.

2. Warden Slagle

The undisputed forecast of evidence shows that Defendant Slagle is a

non-medical prison warden who lacks access to prisoner medical records,

has no authority to authorize medical accommodations or to make any

medical decisions; that he relied on the prison’s medical staff to manage the

Plaintiff’s care; and that he has no control over facility transfers. Defendant

Slagle’s mere knowledge that the Plaintiff and his family were dissatisfied

with the care at MVCI is insufficient to establish that Slagle was deliberately

indifferent to any serious medical need. See Miltier v. Beorn, 896 F.2d 848,

854 (4th Cir. 1990) (prison wardens were entitled to summary judgment

where no record evidence suggested why they should not have been entitled

to rely on their health care providers’ expertise); Amisi v. Brooks, 93 F.4th

659, 670 (4th Cir. 2024) (the “requisite causal connection” between

defendant and a violation can be established if the defendant “set[s] in

motion a series of acts by others which the actor[] know[s] or reasonably

should know would cause others to inflict the constitutional injury”);

Williamson v. Stirling, 912 F.3d 154, 171 (4th Cir. 2018) (mere knowledge of

a deprivation is insufficient). Moreover, as discussed supra, any supervisory

claim against Warden Slagle fails because the forecast of evidence does not

demonstrate the existence of an underlying constitutional violation. Givens,

121 F. App’x at 991 n.6. Accordingly, summary judgment will be granted in

favor of Warden Slagle.

C. Qualified Immunity

“Qualified immunity protects officers who commit constitutional

violations but who, in light of clearly established law, could reasonably

believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011) (en banc). “To determine whether an officer is entitled to

qualified immunity, the court must examine (1) whether the plaintiff has

demonstrated that the officer violated a constitutional right and (2) whether

that right was clearly established at the time of the alleged violation.” E.W.

ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018) (internal quotation

marks omitted). The doctrine of qualified immunity “gives government

officials breathing room to make reasonable but mistaken judgments and

protects all but the plainly incompetent or those who knowingly violate the

law.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (internal quotation marks

omitted). Here, the Plaintiff has not forecasted evidence that the Defendants

violated a constitutional right. Therefore, the Defendants are also entitled

qualified immunity, and their Motions for Summary Judgment are granted on

this ground as well.

IV. CONCLUSION

For the reasons stated herein, the Defendants’ Motions for Summary

Judgment are granted, and this action is dismissed with prejudice.

ORDER

IT IS, THEREFORE, ORDERED that the Defendants’ Motions for

Summary Judgment [Docs. 87, 94] are GRANTED, and this action is

DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

Signed: August 12, 2024

Martifi Reidinger ee

Chief United States District Judge MS

25