Lowe v. Johnson
| Docket Number | 21-7443 |
| Decision Date | 01 November 2023 |
| Parties | KEITH W.R. LOWE, Plaintiff - Appellant, v. DR. SHERRI JOHNSON, physician for Wexford, sued in her individual capacity; DAVID BALLARD, former Warden of Mount Olive Correctional Complex; JAMES RUBENSTEIN, former Commissioner of WVDOC, sued in his individual and official capacities, Defendants - Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
Submitted: September 26, 2023
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston Chief District Judge. (2:17-cv-02345)
Keith W.R. Lowe, Appellant Pro Se.
Michelle D. Baldwin, Melvin F. O'Brien, DICKIE, MCCAMEY &CHILCOTE, P.C., Wheeling, West Virginia; John P. Fuller BAILEY &WYANT, PLLC, Charleston, West Virginia, for Appellees.
Before WILKINSON, GREGORY, and THACKER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
This case comes before us for a second time. Keith W.R. Lowe, a West Virginia inmate, filed a 42 U.S.C. § 1983 complaint and alleged, among other claims, deliberate indifference to his serious medical needs arising from the discontinuation and temporary deprivation of anti-seizure medication. The district court dismissed his complaint for failure to state a claim. On appeal, we vacated the district court's order and remanded for further proceedings after concluding that Lowe had plausibly alleged a deliberate indifference claim against Dr. Sherri Johnson and a supervisory liability claim against prison officials James Rubenstein and David Ballard. Lowe v. Johnson, 797 Fed.Appx. 791 (4th Cir. 2020) (No. 19-6353). On remand, Dr. Johnson, Rubenstein, and Ballard (collectively, "Defendants") moved for summary judgment. The district court accepted the magistrate judge's findings and recommendation, granted summary judgment in favor of Defendants, and dismissed Lowe's claims of deliberate indifference to his serious medical needs. We affirm in part, vacate in part, and remand for further proceedings.
In 2010, a physician for Wexford Health Sources, the medical provider for inmates at Lowe's prison, diagnosed Lowe with epilepsy after Lowe suffered several seizures. The physician prescribed Lowe Dilantin three times daily to control the seizures. There is no doubt that epilepsy is a serious medical need. According to Dr. Johnson's medical expert, Dr. Constantino Amores, Dilantin is an excellent anti-seizure medication. But a patient receiving Dilantin should have blood tests to determine the level of Dilantin in the patient's blood stream. According to Dr. Amores, a low level of the medication in the blood puts the patient at risk of seizure recurrence, and a high level in the blood may put the patient's liver and kidneys at risk. Dr. Amores noted that Dilantin controlled Lowe's seizures until Lowe refused to have his blood drawn. Lowe had needle phobia and, in October 2014, refused to have blood drawn against medical advice. This came to a head in January 2015, when Dr. Johnson told Lowe that if he did not have his blood drawn, she would discontinue Dilantin and prescribe Keppra in its place. Keppra does not require blood tests.
On April 2, 2015, Dr. Johnson discontinued Lowe's prescription for Dilantin without notice to Lowe, but she did not immediately prescribe Keppra. Lowe was concerned that he was at risk of seizures because his epilepsy was not being medically treated. Lowe spoke to Dr. Johnson to request a prescription for an anti-seizure medication. He also wrote Rubenstein and Ballard to notify them that Dr. Johnson was not treating his epilepsy.
On April 6, 2015, Lowe suffered what he believed to be an epileptic seizure because he woke in a puddle of urine. Lowe submitted a sick-call request, spoke with Dr. Johnson, and informed her of the seizure. Dr. Johnson told Lowe that she would not prescribe Dilantin until he had his blood drawn. Lowe agreed to have his blood drawn, and Dr. Johnson told him that a nurse would draw his blood the next day. But no nurse came to draw Lowe's blood.
On April 11, 2015, Lowe had another seizure. He woke lying in a puddle of his blood and had defecated and urinated on himself. Prison guards responded to his call for assistance and saw that his face and upper body were covered in blood. A nurse suspected that Lowe had a seizure while sleeping and fell out of bed, striking his head and face on the concrete floor and stool bolted to the floor. Five days later, on April 16, two weeks after discontinuing Dilantin, Dr. Johnson wrote Lowe a prescription for Keppra.
We review de novo a district court's grant of summary judgment. Shaw v. Foreman, 59 F.4th 121, 129 (4th Cir. 2023).
Summary judgment is appropriate "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 fact is 'material' if proof of its existence or non-existence would affect the disposition of the case under applicable law." Shaw, 59 F.4th at 129 (quoting Wai Man Tom v. Hosp. Ventures LLC, 980 F.3d 1027, 1037 (4th Cir. 2020)). "An issue of material fact is 'genuine' if the evidence offered is such that a reasonable jury might return a verdict for the non-movant." Id. (quoting Wai Man Tom, 980 F.3d at 1037). "The Court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party." Id.
A party moving for summary judgment bears the initial burden of showing no genuine dispute of material fact exists. Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018). The movant may discharge this burden "by 'showing'- that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Smith v. Schlage Lock Co., LLC, 986 F.3d 482, 486 (4th Cir. 2021) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If the movant satisfies this showing, the burden shifts to the nonmoving party to show a genuine issue of material fact for trial by offering "sufficient proof in the form of admissible evidence." Variety Stores, Inc., 888 F.3d at 659 (quoting Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016)). Wai Man Tom, 980 F.3d at 1037 (citation omitted).
"The Eighth Amendment's prohibition on 'cruel and unusual punishments' imposes certain basic duties on prison officials," including providing "adequate medical care." Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). To establish a deliberate indifference claim, "the plaintiff must demonstrate that the defendant prison official acted with 'deliberate indifference' (the subjective component) to the plaintiff's 'serious medical needs' (the objective component)." Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). "The objective component of a deliberate indifference claim is satisfied by a serious medical condition." Id. A "condition is serious when it has 'been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Id. (quoting Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)).
Subjective deliberate indifference "'entails something more than mere negligence' but does not require actual purposive intent." De'lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (quoting De'lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003)). It requires that the official "subjectively 'knows of and disregards an excessive risk to inmate health or safety.'" Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (quoting Farmer, 511 U.S. at 837). "[T]he standard is 'satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'" Gordon, 937 F.3d at 357 (quoting Farmer, 511 U.S. at 835). "In the context of a claim related to the denial of medical treatment, a defendant 'acts with deliberate indifference if he had actual knowledge of the [plaintiff's] serious medical needs and the related risks, but nevertheless disregarded them.'" Id. (quoting DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018)).
"Once prison officials are aware of a serious medical need, they only need to 'respond[] reasonably to the risk.'" Hixson v. Moran, 1 F.4th 297, 302 (4th Cir. 2021) (quoting Farmer, 511 U.S. at 844). Indeed, "a prisoner does not enjoy a constitutional right to the treatment of his or her choice," so long as the medical treatment provided is adequate. De'lonta, 708 F.3d at 526. A mere "'[d]isagreement[] between an inmate and a physician over the inmate's proper medical care' . . . fall[s] short of showing deliberate indifference." Jackson, 775 F.3d at 178 (quoting Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)). Rather, "the treatment given must be 'so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.'" Hixson, 1 F.4th at 303 (quoting Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990)).
Lowe asserts that Dr. Johnson was deliberately indifferent to his serious medical needs by discontinuing Dilantin without notice and delaying in prescribing Keppra for 14 days. As to discontinuing Dilantin, Dr. Amores...
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