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Resper v. Sires

United States District Court, Fourth Circuit

July 11, 2013

WAYNE RESPER, Plaintiff,
SGT. SIRES, et al., Defendant.


PETER J. MESSITTE, District Judge.

Pending is a Motion to Dismiss, or in the alternative Motion for Summary Judgment filed on behalf of Defendants Colin Ottey, M.D., Greg Flury, P.A., Autumn Durst, R.N. Steven Bray, R.N., Dianna Harvey, L.P.N. and Theresa Brenneman, R.N.'s ("Medical Defendants"). ECF No. 24. Also pending is Correctional Defendant Lieutenant Thomas Sires' Motion to Dismiss, or in the alternative Motion for Summary Judgment. ECF No. 28. Plaintiff has responded. ECF No. 35. Medical Defendants have replied (ECF No. 36) and Plaintiff has filed a surreply. ECF No. 37. Upon review of papers and exhibits filed, the Court finds an oral hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2011). For the reasons stated below, the dispositive motions filed by Defendants will be granted.


Plaintiff states that on March 19, 2009, when he was transferred from Jessup Correctional Institution ("JCI") to the North Branch Correctional Institution ("NBCI"), Sires confiscated medical devices, specifically knee sleeves, patella supports, ankle supports and insoles. ECF No. 3. Plaintiff states that Sires advised him that the devices were being sent to NBCI's medical unit to be reissued. As a result of being deprived of his prescribed medical devices, he had to, "endure acute sharp and dull pains in [his] feet and knees that travel up the backs of [his] legs, exacerbating the conditions for which an orthopedist and podiatrist prescribed [the medical devices]." Id. The devices were not reissued. Plaintiff maintains that the deprivation of the devices caused "significant and continuous degeneration" of his knees and feet, making it difficult for him to walk and extremely painful to attempt exercise. Id. As relief, Plaintiff seeks an order that he be examined by a podiatrist and orthopedic specialist to determine the state of his existing condition and proper course of treatment, including issuance of any comparable medical devices. He also seeks compensation for the confiscation and destruction of the medical devices. Id.

Lieutenant Thomas Sires is a correctional employee assigned to NBCI. ECF No. 28, Ex. A. Prior to his current assignment as back-up Duty Lieutenant on NBCI's 3-11 shift, he was a Sergeant assigned as the Officer in Charge of NBCI's Property Room. Id. Upon arrival at NBCI on March 17, 2009, Plaintiff was a strip-searched. The search uncovered a USB drive sewn into the collar of Plaintiff's state-issued coat. Sires confiscated the USB drive as contraband and wrote an adjustment report charging Plaintiff with its possession. Id. Sires avers that he specifically recalls Plaintiff's transfer to NBCI because he has never before or since uncovered a USB drive sewn into clothing. Sires avers that no medical items were taken from Plaintiff and further avers that had such items been confiscated from Plaintiff, a confiscation form would have been completed and Plaintiff would have been required to sign same acknowledging the confiscation. Id. Plaintiff's property inventory from JCI demonstrates that 6 unspecified medical items were packed for his transport to NBCI. ECF No. 35, Ex. 23(1).

Sires further avers that the standard intake procedure at NBCI calls for medical staff to be summoned if an inmate arrives with medical items to determine whether the inmate needs the items. Sires states that this is done for the safety of the arriving inmate and the security of the institution. If the medical items are turned over to the medical department, Sires would have the medical employee sign for same. If it was determined that the arriving inmate required the items, they would be issued to the inmate by NBCI medical staff at the completion of the initial medical interview.[1] Id. At intake Plaintiff did not appear to be in distress. Had Plaintiff appeared in distress or arrived with an obvious disability, medical staff would have been contacted immediately to determine whether Plaintiff needed medical assistance. Id.

Later on March 19, 2009, Plaintiff was issued his allowable personal property brought from JCI. Id., and Ex. 2 p. 6-9. The property was inventoried in Plaintiff's presence and he signed it. Confiscation forms were completed showing items which were not allowable. There is no entry on the confiscation form indicating the taking of any medical item. Id.

Plaintiff was seen by Nurse Welner and Dr. Ottey for his medical intake interview. Id., p. 77-78, 334. There is no indication in those medical reports that Plaintiff required braces, shoe inserts, or any other items complained of in this case. Id. The transfer screening specifically noted that Plaintiff did not have any assistive devices and Plaintiff's only immediate medical issue concerned sinus problems. Id. Similarly the intra-system transfer summary generated by JCI did not indicate any medical devices prescribed to Plaintiff nor that he suffered from a chronic condition. Id., p. 326.

The uncontroverted medical records demonstrate that on March 23, 2009, Plaintiff filed a sick call request regarding refill of various prescriptions as well as the need for knee supports. ECF No. 24, Ex. 1, p. 206 & 326. Plaintiff submitted two other sick call forms on April 2, 2009, which made no mention of the medical devises. Id. p. 204 & 205. Plaintiff submitted another sick-call slip on April 26, 2009, stating that his knee and ankle supports as well as medication were sent to the medical department by property personnel for issuance upon his arrival at NBCI and indicating he was in need of the items. Id., p. 203. Plaintiff was examined by Lisa Schindler, P.A. on April 29, 2009. Id., p. 339. It was noted that Plaintiff requested knee braces for patellar tendonitis. Plaintiff was prescribed pain relievers and Schindler requested an x-ray. Id., p. 336. Schindler's notes also reflect that she referred Plaintiff to Dr. Ottey for further evaluation regarding his request for a knee brace ( Id. p. 339-340) and also noted "knee brace from property to i/m w/ paper work x 1 yr. Thanks." Id., p. 337.

Plaintiff was evaluated by Dr. Ottey on May 2, 2009, after Plaintiff's altercation with another inmate. Plaintiff complained of pain in his left upper abdomen. There was no sign of injury. No other complaints were noted. Id. p. 341.

The x-rays ordered by Schindler were not taken until May 19, 2009, and read the following day. The x-rays showed no significant spurs. Small lucencies were noted in the mid-patella on the right as well as bone cysts. Id., p. 211, 336.

Plaintiff was again seen on May 22, 2009, by Schindler and again reported knee pain. Id. p. 346. Schindler noted "bilateral knee pain, severity is moderate, worse with use, improved by rest, status is stable." Id. She also noted knee pain was "mild pain w/ motion." Id., p. 348. He was prescribed a pain reliever to continue through August 29, 2009. Id.

Plaintiff's next sick-call slip complaining of joint pain was filed on June 14, 2009. Id., p. 201. The sick call requested more analgesic medication as well as knee supports and insoles. Id., p. 201. Plaintiff was again evaluated by Schindler. Id., p. 350. Schindler referred Plaintiff to Dr. Ottey for further evaluation of the request for knee brace and insoles. Id.

On June 26, 2009, Plaintiff filed another sick call slip stating he needed his nails cut and he needed to see the doctor regarding "wrist, chronic knee and foot pain for 2.5 months." Id., p. 200. It was noted, presumably because Plaintiff had been scheduled to see a health care provider, that Plaintiff was out to court on July 4, 2009.[2] Id., p. 200. Plaintiff filed another sick call slip on July 14, 2009, again stating he needed his nails cut and needed "knee/patella supports." Id., p. 199. Plaintiff was seen on July 17, 2009, by Nurse Bray regarding his request to have his nails cut and on July 18, 2009 by Greg Flury, P.A. After examination Flury did not find any indication for patellar knee braces. Flury discussed with Plaintiff the possibility of a steroid ...

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