Allen v. Ulep
| Decision Date | 24 August 2021 |
| Docket Number | 1:19cv1477(TSE/IDD) |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Karsten O. Allen, Plaintiff, v. Benjamin T. Ulep, et al., Defendants. |
Karsten Allen, a Virginia inmate, filed a pro se civil action against two correctional officers (Unit Manager Foreman and Lieutenant Adams) and four medical professionals (Dr Benjamin T. Ulep, Dr. Bomar, Nurse Butts, and Nurse Walker) at Sussex I State Prison, alleging that each acted with deliberate indifference to his serious medical need in violation of his Eighth Amendment right to be free from cruel and unusual punishment. [Dkt. No. 1]. On May 22, 2020 defendants Foreman and Adams were dismissed, and the remaining four medical defendants were served. The served defendants have filed a motion for summary judgment, which is supported by exhibits and affidavits. [Dkt. Nos. 32, 33, 33-1 through 6]. Plaintiff has been afforded the opportunity to file responsive materials pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and has responded. [Dkt. No. 37-40]. Accordingly, this matter is now ripe for disposition. For the reasons that follow, the defendants' motion for summary judgment must be granted in part and denied in part.
The defendants are alleged to have been deliberately indifferent, primarily related to Plaintiffs lower back pain. Most of the complaint concerns Defendant Dr. Ulep who Plaintiff alleges refused to investigate the cause of the back pain, which persisted for over three years once Dr. Ulep ruled out scoliosis as the cause of the pain. Plaintiff alleges Dr. Ulep was deliberately indifferent as follows:
Plaintiff claims that Defendant Dr. Bomar was deliberately indifferent to plaintiffs serious medical needs on July 17, 2019 and July 25, 2019, because Dr. Bomar refused to treat Plaintiff or allow him to come to the medical department for treatment of his back pain. [Dkt. No. 1 at 7-8, 11]. With respect to Defendant Nurse Butts, Plaintiff alleges that Nurse Butts was deliberately indifferent to his serious medical need on August 23, 2019, when plaintiff claims that he was in critical need of assistance for pain stemming from a recent epidural procedure (on August 22, 2019), and that Nurse Butts ignored his request for medical assistance, [hi at 8, 11]. Lastly, Plaintiff alleges that Defendant Nurse Walker was deliberately indifferent to his serious medical need on August 26, 2019 because Nurse Walker ignored plaintiffs request for medical assistance with the pain he was suffering from the August 22, 2019 epidural procedure. [Id., 8, 11-12].
II. Statement of Undisputed Facts
Summary judgment is appropriatei-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). Defendants, pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56, set forth a statement of material facts that defendants contend are undisputed. In response, plaintiff substantially complied with his obligations under those Rules by submitting statements of undisputed and disputed facts and included citations to the record. Accordingly, the following statement of uncontested facts is derived from a review of defendants' statement of undisputed facts, the nonmovant's response, and the record.[1]
1. Dr. Ulep is a physician licensed to practice medicine in the Commonwealth of Virginia and was the Medical Director at Sussex I State Prison ("SISP") from 2015 until his departure and retirement on June 1, 2019. [Dkt. No. 33-5 at ¶¶ 1-2, 4].
2. Dr. Bomar is a physician licensed to practice medicine in the Commonwealth of Virginia who began working at SISP on May 30, 2019, assuming the role of Medical Director from that time, until his departure from SISP on August 23, 2019. [Dkt. No. 33-4 at ¶¶ 1, 3].
3. Nurse Butts is a licensed practical nurse licensed to practice in the Commonwealth of Virginia and was employed as a staff nurse at SISP from March 11, 2007 until August 25, 2020. [Dkt. No. 33-3 at t¶ 1, 3].
4. Nurse Walker is a licensed practical nurse licensed to practice in the Commonwealth of Virginia who has been working at SISP since August 2016. [Dkt. No. 33-6 at ¶¶ 1, 3].
5. Plaintiff was transferred from Buckingham Correctional Center to SISP on April 29, 2016. [Dkt. No. 33-1 at 1, 150].
6. Plaintiff suffered from scoliosis and back pain prior to his arrival at SISP on April 29, 2016. [14 at 1-2].
7. Dr. Ulep first evaluated Plaintiff on June 16, 2016, where amongst other treatment noted in the medical record, spinal x-rays were ordered, and naproxen was prescribed for Plaintiff. [Dkt. No. 33-5 at¶ 6; Dkt. No. 33-1 at 3].
8. On July 14, 2016, Dr. Ulep reviewed the spinal x-rays which he concluded were normal except for the presence of scoliosis which confirmed the earlier diagnosis. [Dkt. No. 33-5 at ¶ 7; Dkt. No. 33-1 at 4].
9. On August 19, 2016, Plaintiff made a request for a shoe lift but did not have a heel lifts or orthopedic shoes when he transferred to SISP. Dr. Ulep ordered additional x-rays to evaluate Plaintiffs pelvic tilt. [Dkt. No. 33-1 at 4].
10. On August 22, 2016, Plaintiff was scheduled for x-rays to evaluate pelvic tilt, but Plaintiff refused to have those x-rays taken. [Id., at 5], 11. On November 3, 2016, Dr. Ulep increased Plaintiffs medication and inquired as to the status of the x-rays he had ordered on August 19, 2016 which had yet to be completed. [Dkt. No. 33-5 at ¶ 8; Dkt. No. 33-1 at 6-7].
12. On November 16, 2016, the x-rays that had been ordered on August 19, 2019 were completed confirming dextro scoliosis of the lumbar spine with an unchanged pelvic tilt. [Dkt. No. 33-5 at ¶9: Dkt. No. 33-1 at 151].
13. Plaintiff was next seen on January 19, 2017 by another medical provider who noted Plaintiff had an intact gait without a limp, no spinal tenderness with good forward and backward bending. This medical provider diagnosed Plaintiff as having mild scoliosis, prescribed him Flexeril® and shoe inserts, and encouraged back exercises. [Dkt. No. 33-1 at 8].
14. On February 15, 2017, Plaintiff saw Dr. Ulep who opined that a spine clinic referral was not warranted and advised Plaintiff to continue with exercises and medications as previously ordered. [Dkt. No. 33-5 at ¶ 10; Dkt. No. 33-1 at 9].
15. On May 30, 2017. Plaintiff underwent electromyographic and nerve conduction velocity studies, ordered by Dr. Ulep. Those studies disclosed no electrophysiological evidence of peripheral neuropathy or left lumbosacral radiculopathy. [Dkt. No. 33-5 at ¶ 13; Dkt. No. 33-1 at 14, 16, 141, 152-56].
16. On August 8, 2017, Dr. Ulep saw Plaintiff and told Plaintiff: (i) of the normal EMG results; (ii) that surgery would not alleviate Plaintiffs back pain and to continue with exercises; and (iii) that Plaintiff should continue with the recommended non-steroidal anti-inflammatory medication. [Dkt. No. 33-5 at ¶ 14; Dkt. No. 33-1 at 17-18].
17. From August 19-21, 2017, Plaintiff was placed in the medical unit for observation by Dr. Ulep. [Dkt. No. 33-5 at ¶ 15; Dkt. No. 33-1 at 20, 111].
18. On October 13, 2017, Dr. Ulep referred Plaintiff for an off-site physical therapy evaluation for back pain and leg length discrepancy, which was approved as an on-site evaluation. [Dkt. No. 33-5 at ¶ 16; Dkt. No. 33-1 at 21, 143].
19. Plaintiff was in physical therapy intermittently from December 21, 2017 to May 22, 2018 and it was noted that he had made minimal progress due to non-compliance and poor initiative following through with therapy recommendations. [Dkt. No. 33-5 at ¶¶ 16-17; Dkt. No. 33-1 at 21, 71, 75-78, 83, 87, 124-140, 143].
20. X-rays ordered of Plaintiff s lumbar spine by Dr. Ulep on January 13, 2018, showed no change from prior exams. [Dkt. No. 33-5 at ¶ 18; Dkt. No. 33-1 at 157].
21. On February 20, 2018, Dr. Ulep advised Plaintiff of the recent x-ray findings, re-prescribed Plaintiffs baclofen and advised Plaintiff to return for evaluation the week of March 12, 2018 if there was no improvement at which time Dr. Ulep would consider a referral to Medical College of Virginia ("MCV") Scoliosis Clinic for evaluation of leg-length discrepancy and possible orthotics. [Dkt. No. 33-5 at ¶ 19; Dkt. No. 33-1 at 25].
22. Plaintiff was seen by other medical providers or was prescribed medication on February 27, 2018, March 16, 2018, May 9, 15 and 31, 2018 and Junel3, 2018. [Dkt. No. 33-1 at 26-31].
23. On April 10, 2018 Plaintiff received a heel lift for right-sided leg length discrepancy from physical therapy. [Dkt. No. 33-5 at ¶ 20; Dkt. No. 33-1 at 135-36, 158].
24. On June 19, 2018, Dr. Ulep requested a referral for Plaintiff to be evaluated at the MCV Scoliosis Clinic. [Dkt. No. 33-5 at ¶21; Dkt. No. 33-1 at 32, 144].
25. On June 20, 2018, Dr. Ulep placed the MCV Scoliosis Clinic referral for Plaintiff on hold pending further evaluation in mid-July 2018 for treatment that had been instituted by another physician on May 31, 2018. [Dkt. No. 33-1 at 32].
26. Plaintiff was re-evaluated by various...
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