Opinion
C. A. 4:20-0244-JD-TER
01-13-2022
Michael E. Wolfe, Plaintiff, v. Nfn. Churray, Officer Kayla Shervey, Nfn. Mocccabello, Nfn. Caldwell, Sgt. Nfn. Perks, Lt. Nfn Lasley, Captain, Nfn Toth, Captain, Jimmy Pacheco, licensed clinical psychiatrist, Kathy Wyant, Human Servs. Coord., Nfn Early, Associate Warden, Donna Ashley-Harouff, nurse, Amy Enloe, field nurse practitioner, Nfn Glen, deputy warden, Nfn Osborne, registered nurse, Thomas Overman, registered nurse, Nfn. McRee, Nfn Welch, transportation sgt., L. Harris, registered nurse, Ashley Grimsley, registered nurse, Katherine Burgess, registered nurse, James Smith, Human Services Coordinator Nfn Palmer, Captain/Unit Manager, Dominic M. Boccabello, Sgt. Charles B. Welchel, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is a civil action filed pro se by Michael E. Wolfe (“Plaintiff”) under 42 U.S.C. § 1983 on January 24, 2020, alleging a violation of his constitutional rights. Plaintiff filed an amended complaint on July 17, 2020. (ECF No. 110). This matter is before the court on the motion for summary judgment filed by Defendants Osborne and Overman. (ECF No. 280). As the Plaintiff is proceeding pro se, the court issued an order on or about April 13, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. After being given an extension, Plaintiff filed a response on June 1, 2021. (ECF No. 299). Defendants filed a reply on June 8, 2021. (ECF No. 308). Plaintiff filed a sur-reply on July 23, 2021. (ECF No. 319).
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the district judge.
Defendants Ashley-Harouff, Dominic Boccabello, Burgess, Caldwell, Churray, Early, Enloe, Harris, Lasley, McRee, Pacheo, Pamer, Perks, Shervey, Smith, Toth, Welchel, and Wyant filed a motion for summary judgment on April 13, 2021. Defendant Grimsley filed a motion for summary judgment on April 13, 2021. A separate report and recommendation will be entered for each of these motions for summary judgment. Defendants Nfn Moccabello and Nfn Welch have been terminated.
Plaintiff filed a motion to strike under Fed. R.Civ. P 12(f) and to exclude under FRE 403 arguing that Defendants' affidavits attached to their reply should be struck and excluded because they were not attached to the original motion. Plaintiff argues that by them not being attached to the original motion, he had not had the opportunity to file a response and his own affidavit to rebut Defendants' affidavits. (ECF No. 310). Defendants filed a response in opposition asserting that the motion was improper and premature. (ECF No. 315). Plaintiff filed a motion for leave to file a sur-reply. (ECF No. 311). The Defendants filed a response to the motion stating that they did not oppose the request for leave to file a sur-reply. (ECF No. 316). Therefore, the motion was granted on July 18, 2021. (ECF No. 317). Plaintiff filed a sur-reply and an affidavit addressing Defendants' affidavits and reply. (ECF No. 319). Therefore, the motion to strike and exclude (ECF No. 310) is denied.
DISCUSSION
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
ALLEGATIONS
Testicular cyst
In the amended complaint, Plaintiff alleges that he was seen by medical for sick call while housed at Perry Correctional Institution's (PCI) for testicular cysts starting in July 2018. (ECF No. 110). Plaintiff was seen for complaints of testicular cysts causing pain in his testicles, blood in his urine, and burning upon urination. (Id.). Plaintiff was physically examined by Nurse Osborne on July 30, 2018, Nurse Harouff on August 9, 2018, and Nurse Practitioner Enloe the beginning of August 2018, and Nurse Overman between the end of July 2018, and early August 2018. (Id.). These medical personnel all confirmed that he had a lump that was palpable on his right testicle and he informed them of the blood and burning upon urination. (Id.). Defendants did not give him adequate medical attention or “even initiated the steps to treat and resolve the issue of my testicular cyst.” (Id. at 17).
Further, Plaintiff alleges that he has left peroneal neuropathy which is a permanent nerve injury in his left leg from the foot to the knee caused by SCDC. (Id.). Once Plaintiff arrived at PCI, he was to continue his appointments with the neurologist every ninety-days after the neurologist ordered which treatment methods he wanted Plaintiff to try. (Id.). Defendants Osborne and Overman, as well as other medical personnel, intentionally delayed his return to the neurologist by eight months as part of retaliation for his filing grievances and complaints against SCDC employees. (Id.). Plaintiff contends that comments were made that the paperwork he was filing was causing the delay to see the neurologist. (Id.). Lastly, Plaintiff alleges that neither Defendant Osborne nor Overman followed the neurologist recommendations, specifically the orders to receive physical therapy or rehabilitation, thereby, showing medical indifference. (Id.). Plaintiff attempted to exercise in his cell but experienced extreme pain and received additional injuries trying. (Id.).
Defendants filed their motion for summary judgment arguing that summary judgment should be granted and attaching a copy of Plaintiff's medical records. (ECF No.280-1). Based on the medical records submitted, Plaintiff was seen by Defendant Nurse Overman on July 19, 2018, with a complaint of a cyst on his testicles to which Overman noted “unable to appreciate a mass on either testicle but i/m states that he had a cyst in the past that was revealed by ultrasound. I/m requests ibuprofen, will send per s.o. in evening pill pass.” (ECF No. 280-1 at 25). Defendant Enloe was made aware of Plaintiff's complaint. (Id.). Plaintiff was seen by Defendant Osborne on July 30, 2018, with complaints of cysts on his testicles and noted an approximately 1.5 cm mass on the superior back side of Plaintiff's right testicle. (ECF No. 280-1 at 27). The mass was firm, non-mobile, and painful to the touch. (Id.). Defendants assert that Plaintiff displayed a previous scrotal ultrasound which showed a mass on the testicle and Plaintiff claimed it was treated with antibiotics. (Id.). Defendants Osborne referred Plaintiff to Nurse Practitioner Enloe for treatment for the testicular mass but noted that I/M requested ibuprofen for pain/discomfort which Nurse Osborne noted would be sent an ibuprofen pill pack in the pill line. (Id.).
Plaintiff was also seen by Defendants Ashley-Harouff, Enloe, and Burgess for the testicular complaints and treatment. Defendants Enloe referred Plaintiff for a scrotal ultrasound performed on November 6, 2018, revealing a small bilateral epidiymal cysts.
Left peroneal neuropathy
As to the left peroneal neuropathy, Plaintiff alleges that the PCI medical staff failed to allow him to receive follow-up treatment with the neurologist that he had seen prior arriving at PCI and that these Defendants made comments that Plaintiff's paperwork for the referral to neurology was causing the delay which Plaintiff argues was a form of retaliation. (ECF No. 110).
Defendants submitted the medical records which reveal that Plaintiff was seen on by Defendant Overman on August 11, 2017, with complaints of low back pain and a request for an x-ray of his left foot due to a bump on top. (ECF No. 280-1 at 16-17). The notes indicate Plaintiff stated that he used to have a leg brace and shoes to help with his foot drop but were lost in the transfer to PCI. (Id.). Plaintiff requested another clinical appointment to followup. (Id.). The notes indicated that based on observation, Plaintiff had “no aberrance in stride or Gait noted. Left Foot has a slightly enlarged area over metatarsals that may be secondary to foot drag.” (Id. at 17). Defendant Overman noted that the requests for an x-ray of the left foot and another clinic appointment, a leg brace and shoes, and Ultram were forwarded to Nurse Practitioner Enloe. (Id.). Enloe completed the x-ray requisition and a follow-up was posted with Enloe. (Id.).
Plaintiff was seen by Defendant Overman on May 22, 2018, complaining that the medication was not relieving his nerve pain and requested a different medication, Tramadol. (ECF No. 280-1 at 20). Defendant Overman advised Plaintiff that Tramadol was not an indicator for nerve pain and encouraged him to exercise to strengthen his both muscle groups. (Id.). It was noted that Plaintiff “walks fairley normal on a flat surface.” (Id.). The information was forwarded and Dr. Hamilton E. Russell signed off. (Id.).
Defendant Overman saw Plaintiff on June 29, 2018, when Plaintiff requested an x-ray of his right ankle that he stated he twisted a couple of months back and it was still swollen and inquired as to whether or not he had a neurology follow up. (ECF No. 280-1 at 21-22). Defendant Overman noted that Plaintiff had a normal gait on exam with no discoloration in the right ankle, had a mild amount of swelling but range of motion did not appear to cause any signs of pain. Defendant Overman noted that a followup for a request for a right ankle x-ray and whether or not he would be followed up by neurology, since Overman was unable to find any appointments already scheduled, was forwarded to Nurse Practitioner Enloe for determination. (Id.). A note was entered for a chart update on July 9, 2018, revealing that Plaintiff's previous appointment with USC Department of Neurology for August 15, 2018, had been rescheduled for October 17, 2018. (ECF 280-1 at 23).
Defendant Osborne saw Plaintiff on January 29, 2019, requesting medications refill and a new shoe pass. (ECF No. 280-1 at 39-40). Plaintiff complained of back pain and left leg pain which Defendants stated was probably related to leg braces and orthopedic shoes not fitting properly. (Id.). Defendant Osborne advised Plaintiff of his pending neurology appointment and that Ibuprofen and a shoe pass would be sent in the bedtime pill line. (Id.). Defendant Osborne also forwarded to Nurse Practitioner Enloe that Plaintiff had numerous transfers with SCDC in the recent month, that he required a neurology follow-up in late January or early February, that he needed a followup with Capital Prosthetics for shoe brace replacement since his new shoes were not fitting properly, and that he needed a refill on ibuprofen. (Id.).
Lastly, Plaintiff alleges that the PCI medical staffs, including Defendants Osborne and Overman, were deliberately indifferent to a serous medical need by failing to follow the orders of the Neurologist, Dr. Jhunjhunwala, including failing to order physical therapy and rehabilitation. Based on the records, Plaintiff was seen in regard to his neuropathy on August 11, 2017, May 22, 2018, June 29, 2018, and January 29, 2019. Defendant Overman referred Plaintiff to a higher level of care and encouraged him to exercise for muscle strengthening.
EXHAUSTION (Testicular Cyst)
Defendants Osborne and Overman argue that summary judgment should be granted on their behalf regarding the allegations of medical indifference pertaining to Plaintiff's testicular cysts because Plaintiff has failed to exhaust his administrative remedies prior to filing this action. Specifically, Defendants argue that Plaintiff waived any claims regarding a delay in treatment or proper care for his testicular cysts because he filed a Step One Grievance and accepted the Warden's decision denying the grievance, and thereby, not filing a Step Two grievance to appeal the decision.
The Warden responded:
I have reviewed your concern, in your grievance you stated that your right testicle is causing you severe pain and causing you to have trouble urinating. You also stated in 2014 you had an ultrasound that showed you had a cyst in your testicle and you believe it is getting bigger. You stated you have been seen in sick call several times and prescribed antibiotics but nothing is helping. You want a new ultrasound done on your right testicle, as well as adequate medical attention from this institution. I have thoroughly investigated this matter. As you stated, you have been seen by medical several times through sick call and have been prescribed antibiotics. You have also been seen by Nurse Practitioner, Ms. Enloe who recommended and got you approved for a testicular ultrasound. The ultrasound will be scheduled at the first available appointment. I recommend to please be patient as Perry Medical Staff has shown they have done and are continuing to do all they can to help assist you in receiving the best medical care possible in the fastest time possible with all the resources they have available. You have not shown that Perry Medical Staff have performed their job duties inappropriately. Therefore, I consider your grievance resolved.(ECF No. 110 at 61 of 66).
The Prison Litigation Reform Act (“PLRA”) requires that a prisoner exhaust the available administrative remedies before filing a 1983 action concerning conditions of his confinement. 42 U.S.C. 1997e(a). In enacting the PLRA, Congress carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended section 1997e so that it now provides, “No 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.). § 1997e(a). Accordingly, before Plaintiff may proceed with his claims in this Court, he must first exhaust his administrative remedies available through the grievance process within the SCDC. The United States Supreme Court has held that “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001); see Porter v. Nussle, 534 U.S. 516 (2002); Jones v. Smith, 266 F.3d 399 (6th Cir. 2001)(exhaustion required even though Plaintiff claimed futility); Larkin v. Galloway, 266 F.3d 718 (7th Cir. 2001)(exhaustion required even grievances plaintiff claimed he was afraid); see also Claybrooks v. Newsome, 2001 WL 1089548 (4th Cir., September 18, 2001)(unpublished opinion)(applying Booth v. Churner to affirm district court's denial of relief to Plaintiff). A failure to exhaust all levels of administrative review is not “proper exhaustion” and will bar actions filed by inmates under any federal law, including §1983. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386 (2006).
Based on the evidence presented, Plaintiff has not exhausted his administrative remedies with regard to the allegations against Defendants Osborne and Overman pertaining to testicular cysts. Plaintiff's Exhibit K attached to the amended complaint is a Step One grievance form dated August 21, 2018, describing testicular cysts. It was not exhausted because Plaintiff accepted the Warden's decision and did not file a Step Two grievance. (ECF No. 110 at 60-61). Thus, it is recommended that this Defendants' motion for summary judgment be granted as to Defendants Overman and Osborne with regard to allegations of medical indifference pertaining to testicular cysts.
MEDICAL INDIFFERENCE (Peroneal Neuropathy)
Defendants Overman and Osborne argue that they are entitled to summary judgment because Plaintiff fails to demonstrate that they were deliberately indifferent to his serious medical needs with regard to left peroneal neuropathy. Defendants argue that Plaintiff has failed to put forth sufficient evidence that his neuropathy constituted a serious medical need and that he was deprived of treatment. Defendants argue that the medical evidence in the record reveals that these Defendants responded to his complaints with referral to a higher level of care because a registered nurse lacks the ability to order treatment or a referral as orders and referrals may only be issued by a physician or nurse practitioner. Thus, Defendants assert that any failure to order additional treatment is not within the control or scope of the practice of these Defendants. Defendants further assert that assuming, arguendo, Plaintiff was able to satisfy the first element, his allegations are entirely lacking of anything other than mere allegations that his treatment was delayed in retaliation for having filed a lawsuit or that they were aware of the other lawsuit.
Defendants submitted the affidavits of Overman and Osborne along with their reply. (ECF Nos. 308-2 and 308-3). Defendant William Osborne and Thomas Overman attest that he is a registered nurse (RN) and it is not within the scope of practice of a RN to order tests or imaging, prescribe medicine, order physical therapy or rehabilitation, order pain management treatment, or perform treatment modalities not authorized by the SCDC. (ECF No. 308-3 at 1-3). As a staff nurse, Overman and Osborne can assess inmates for the specific complaints made during their visit and refer them to a higher level of care, such as a SCDC physician, physician's assistant, or nurse practitioner for additional orders with the compliant is outside the scope of his practice. (Id.). Neither Osborne nor Overman is able to oversee or coordinate treatment plans for ongoing medical issues, or provide assessments for issues not raised by the inmate at the sick call visit. (Id.). The portions of Plaintiff's medical records concerning the allegations raised in the lawsuit contains true and accurate cope of the notes Osborne and Overman entered into the SCDC Health Services System and they did not encounter Plaintiff on any other dates to the best of their knowledge. (Id.). Osborne and Overman attest that they are not aware of any grievances filed by Plaintiff regarding their encounters with Plaintiff and were not aware, prior to receiving the current complaint, that Plaintiff had filed any grievances related to his SCDC medical care for other issues. (Id.). Neither Osborne nor Overman is involved in the SCDC grievance investigation resolution process. Prior to the current lawsuit, they had no knowledge of Plaintiff filing other lawsuits against SCDC employees, at no time had either spoken with Plaintiff regarding any other lawsuits against SCDC or its employees, and they never threatened to withhold medical treatment from Plaintiff. (Id.). Osborne and Overman attest that in assessing Plaintiff's medical complaints, they used their professional judgment and training and were not indifferent to Plaintiff's medical needs. (Id.).
In the sur-reply, Plaintiff argues that the issue “is not what was outside of their Registered Nurses scope of practice that they couldn't provide but rather what was inside their scope that they deliberately and blatantly refused to provide because they were retaliating.” (ECF No. 319 at 1). Plaintiff states that he “will concede to the fact that the more serious forms of treatment Plaintiff's condition called for was not within these Defendants scope but the absence of these more serious forms of treatment is not where these defendants culpability lies.” (Id.). Plaintiff asserts that Defendants could have provided a non-prescription pain reliever, an ice pack, supplies for heat press, etc. with regard to his testicular pain. However, Plaintiff has not set forth any competent evidence as to what more the Defendants could or should have done with regard to his neuropathy other than the Ibuprofen and forwarding the information to the higher level requesting that Plaintiff receive a follow-up appointment with the neurologist, receive a possible x-ray, and to receive an appointment with prosthetics to have braces fitted. It is noted that Defendants did provide Plaintiff with Ibuprofen and requested another refill from Nurse Practitioner Enloe when his refills had expired. Plaintiff asserts that Defendants' arguments that they referred his complaints to Nurse Practitioner Enloe when they knew Enloe was retaliating against him and that the forwarding of the information to her was futile.
Any claim or response/reply of the parties with regard to medical indifference of the testicular cysts is not addressed because, as previous stated, that claim has not been exhausted.
The government is "obligat[ed] to provide medical care for those whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 102 (1976). This obligation arises from an inmate's complete dependence upon prison medical staff to provide essential medical service. Id. The duty to attend to prisoners' medical needs, however, does not presuppose "that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment." Id. at 105. Instead, it is only when prison officials have exhibited "deliberate indifference" to a prisoner's "serious Deliberate indifference is a very high standard. In Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), the Fourth Circuit Court of Appeals noted that treatment "must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness, medical needs" that the Eighth Amendment is offended. Id. at 104.
Deliberate indifference is a very high standard. In Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), the Fourth Circuit Court of Appeals noted that treatment "must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness, nevertheless, mere negligence or malpractice does not violate the Eighth Amendment." Unless medical needs were serious or life threatening, and the defendant was deliberately and intentionally indifferent to those needs of which he was aware at the time, the plaintiff may not prevail. Estelle, 429 U.S. 104; Farmer v. Brennan, 511 U.S. 825 (1994); Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986). "A medical need is ‘serious' if it 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' or if denial of or a delay in treatment causes the inmate ‘to suffer a life-long handicap or permanent loss.'" Coppage v. Mann, 906 F.Supp. 1025, 1037 (E.D.Va. 1995) (internal citations omitted).
Further, incorrect medical treatment, such as an incorrect diagnosis, is not actionable under 42 U.S.C. § 1983. Estelle v. Gamble, supra. Negligence, in general, is not actionable under 42 U.S.C. § 1983. See Daniels v. Williams, 474 U.S. 327, 328-36 & n. 3 (1986); Davidson v. Cannon, 474 U.S. 344, 345-48 (1986); Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir.1987); and Pink v. Lester, 52 F.3d 73, 78 (4th Cir. 1995) (applying Daniels vs. Williams and Ruefly v. Landon: “The district court properly held that Daniels bars an action under § 1983 for negligent conduct.”). Secondly, 42 U.S.C. § 1983 does not impose liability for violations of duties of care arising under state law. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 200-03 (1989). Similarly, medical malpractice is not actionable under 42 U.S.C. § 1983. Estelle v. Gamble, supra, at 106 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”) See also Brooks v. Celeste, F.3d 125 (6th Cir. 1994) (Although several courts prior to the Supreme Court's decision in Farmer v. Brennan, supra, held that “repeated acts of negligence could by themselves constitute deliberate indifference, Farmer teaches otherwise.”); Sellers v. Henman, 41 F.3d 1100, 1103 (7th Cir. 1994) (“If act A committed by the X prison shows negligence but not deliberate indifference, and B the same, and likewise C, the prison is not guilty of deliberate indifference.”); White v. Napoleon, 897 F.2d 103, 108-109 (3rd Cir. 1990); and Smart v. Villar, 547 F.2d 114 (10th Cir. 1976) (affirming summary dismissal).
Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his choice.” Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). Although the provision of medical care by prison officials is not discretionary, the type and amount of medical care is discretionary. See Brown v. Thompson, 868 F.Supp. 326 (S.D.Ga. 1994). Further, a disagreement as to the proper treatment to be received does not in and of itself state a constitutional violation. See Smart v. Villar, 547 F.2d 112 (10th Cir. 1976); Lamb v. Maschner, 633 F.Supp. 351, 353 (D.Kan. 1986). Mistakes of medical judgment are not subject to judicial review in a § 1983 action. Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975).
Here, Plaintiff fails to show that he was denied medical treatment by Defendants Osborne and/or Overman. Plaintiff was examined by these two nurses on for complaints related to his neuropathy. Osborne and Overman and referred to higher medical personnel since they could not order referrals or tests. Plaintiff was physically examined, given Ibuprofen and a shoe pass, told of his follow-up appointment with the neurologist, told to exercise to strengthen the legs, and referred to Defendant Nurse Practitioner Enloe for a referral to follow-up with Capital Prosthetics regarding adjustments to be made to his prosthetic brace. Based on the medical records, Plaintiff received medical care even though it may not have been the medical care he so desired. Further, as held in Estelle, 429 U.S. at 107, a complaint of negligence in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Even if Plaintiff's allegations are true, he has shown nothing more than a disagreement with the medical treatment provided, not that he was completely denied medical treatment. Additionally, Plaintiff has failed to show that he had a serious medical need of which Defendants Osborne and Overman knew about and consciously ignored. Plaintiff has not shown that any conduct by these two Defendants “shocks the conscious” as required by Miltier v. Beorn, supra. The type and amount of medical care is left to the discretion of prison officials as long as medical care is provided. Brown v. Thompson, supra. Overman and Osborne did not have the authority as nurses to order a referral so Plaintiff was referred to be seen by the nurse practitioner. Plaintiff conclusory argues that Defendants Overman and Osborne did not treat him appropriately by simply referring him to the nurse practitioner and fails to present competent evidence of what they could have or should have done for treatment of his neuropathy within their authority other than refer him to medical with higher authority for the referrals. Any disagreement between an inmate and medical personnel generally fails to state a claim. Although there is nothing to indicate that there were mistakes of medical judgment by these two Defendants, even if shown, mistakes of medical judgment are not subject to judicial review in a § 1983 action. Russell v. Sheffer, supra.
Based on the evidence presented, there has been no deliberate indifference shown to the overall medical needs of the Plaintiff with regard to his neuropathy. For the above stated reasons, summary judgment should be granted in favor of Defendants Osborne and Overman on this issue.
RETALIATION
Plaintiff argues that he was not given the timely medical treatment he needed by Defendants Overman and Osborne due to retaliation for previously filing an action against SCDC and grievances against staff. Specifically, Plaintiff alleges medical personnel made comments to him that his “paperwork was holding [him] up” believing this was retaliation for a prior lawsuit he filed against the SCDC.
As to claims of retaliation, “In order to state a colorable retaliation claim under Section 1983, a plaintiff must allege that (1) he engaged in protected First Amendment activity, (2) the defendant took some action that adversely affected his First Amendment rights, and (3) there was a causal relationship between his protected activity and the defendant's conduct.” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (internal quotation marks and alterations omitted). To state a claim for retaliation under § 1983, a plaintiff “must allege either that the retaliatory act was taken in response to the exercise of a constitutionally protected right or that the act itself violated such right.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994). Bare or conclusory assertions of retaliation are insufficient to establish a retaliation claim. Id. at 74. An inmate must allege facts showing that his exercise of a constitutionally protected right was a substantial factor motivating the retaliatory action. See, e.g., Cochran v. Morris, 73 F.3d 1310, 1318 (4th Cir.1996); Hughes v. Bedsole, 48 F.3d 1376, 1387 n. 11 (4th Cir.1995). An inmate must also allege facts showing that he “suffered some adversity in response to [his] exercise of [constitutionally] protected rights.” Am. Civil Liberties Union v. Wicomico Cnty., 999 F.2d 780, 785 (4th Cir.1993). See Al-Amin v. Bush, No. CA 0:13-1176-BHH-PJG, 2015 WL 1414241, at *5 (D.S.C. Jan. 21, 2015), report and recommendation adopted, No. CIV.A. 0:13-01176, 2015 WL 1400019 (D.S.C. Mar. 25, 2015). Plaintiff asserts conclusory allegations of retaliation as to these Defendants. Additionally, Plaintiff was seen in medical by Defendants Overman and Osborne and referred to the nurse practitioner because they had no authority as nurses to order tests or make referrals. Plaintiff has failed to provide any competent evidence as to any alleged retaliation by delay or any specific delay induced by these Defendants when they referred him to higher medical that could order referrals or additional testing. Plaintiff has not provided anything other than conclusory allegations. Therefore, any claim as to retaliation fails.
CONCLUSION
For the reasoning set forth above, it is recommended that the motion for summary judgment filed by Defendants Osborne and Overman (ECF No. 280) be granted.
Further, it is recommended that any outstanding non-dispositive motions be deemed moot.