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Hurt v. Flury

United States District Court, Fourth Circuit

September 20, 2013

RAYMOND D. HURT, Plaintiff
GREG FLURY, et al., Defendants.


DEBORAH K. CHASANOW, District Judge.

Pending are Defendants' Motions to Dismiss or for Summary Judgment (ECF Nos. 15, 39, and 48); Plaintiff's Cross-Motions for Summary Judgment (ECF Nos. 24, 43, and 53); and Plaintiff's Motions for Preliminary Injunction (ECF Nos. 9, 11, 34, and 44). All motions are opposed. A hearing in this matter is unnecessary. See Local Rule 105.6 (D. Md. 2011). For the reasons stated below, judgment shall be entered in favor of all Defendants and injunctive relief denied.


Plaintiff Raymond D. Hurt is a prisoner incarcerated at North Branch Correctional Institution (NBCI) who alleges he is being denied appropriate medical treatment for a serious medical condition. Additionally, he claims correctional staff members are disposing of his mail, preventing him from exhausting administrative remedies and requiring him to re-route his mail through his mother's address in order to insure administrative appeals to the Commissioner of Correction are received. As relief he seeks an injunction requiring medical staff to perform tests to determine the nature of his illness; an injunction prohibiting correctional staff from interfering with his mail; and unspecified monetary damages. ECF No. 1 at p. 12.

Plaintiff states that between the months of August and November of 2012, while confined at NBCI, his weight dropped from 173 pounds to 151 pounds. He complained to Dr. Ottey and Dr. Merril that he was losing weight at "an alarming weight" and that he was experiencing a "foul odor emanating from the pores of his body" that occurred within approximately one hour after eating certain foods and taking certain medications. ECF No. 1 at p. 4. Plaintiff claims that medical personnel refused to order any testing other than for thyroid function, forcing him to initiate a hunger strike on December 1, 2012, which he announced would only be ended if he was sent to an outside hospital for blood and urine testing. Plaintiff's demands were not met, but he claims he was provided blood and urine tests from medical staff at Western Correctional Institution (WCI) in mid-December, 2012. Plaintiff claims the results of these tests have disappeared. Id.

On December 16, 2012, while housed at the WCI infirmary, Plaintiff fell down due to the malnutrition caused by his hunger strike. Plaintiff sustained a large "highly noticeable bruise" on the right side of his forehead as a result of his fall. Id. On December 19, 2012, Plaintiff alleges he was called into the medical unit by Dr. Merril, who administered "a four-way blood test coupled with urine test" for the purpose of locating "any foreign elements" in Plaintiff's system. Id. Plaintiff states the test was performed to determine if some sort of toxin was causing his symptoms of weight loss and foul body odor. He alleges that almost immediately after performing the test on Plaintiff, Dr. Merril quit his job at NBCI "due to being socially ostracized by a sector of medical personnel" because he provided the tests to Plaintiff. He further claims that the results of the tests performed by Merril have also disappeared.

On December 20, 2012, Plaintiff claims he had dropped to 128 pounds after going without food for 20 days and, as a result, he lost consciousness in his cell and also passed out in the bathroom of an infirmary cell. Plaintiff claims he could not be revived with smelling salts and did not regain consciousness until one hour later when staff were preparing to transport him to the hospital. While at the hospital, Plaintiff claims he was denied tests for malnutrition and for detection of foreign elements in his blood or urine, but instead was given a CT scan for the bruise he sustained on his head four days prior to his arrival. Plaintiff attributes the failure to perform the tests he felt were necessary to the "deliberate indifference" of Dr. Schellhase, [1] who sent Plaintiff to the hospital from NBCI. The following day, Plaintiff ended his hunger strike because he feared he was facing certain death via malnutrition and that he would not receive hospital testing for toxins as he has hoped. ECF No. 1 at p. 5.

Plaintiff alleges he regained 17 pounds within one week of ending his hunger strike which he attributes to avoiding certain foods that caused his symptoms of weight loss and body odor. He claims, however, that by December 28, 2012, almost every food item that induced his symptoms was being served on the trays he received while housed in disciplinary segregation and he could no longer avoid the problematic food. Plaintiff alleges he began attempting to randomly select food trays from the food cart in order to avoid "tainted food items, " but claims his ability to do so became severely limited, resulting in his weight fluctuating between 138 and 141 pounds. Id. Plaintiff claims that despite the missing test results, "Nurse Jamie, " Ottey and Merril informed him on February 9 and 16, 2013, that no further tests would be ordered. Id.

On January 18, 2013, Plaintiff states that he pretended to pass out by "laying (sic) prostrate on his bed and acting unconscious" in an attempt to force staff at NBCI to send him to the hospital for proper testing or treatment. During his feigned unconsciousness Plaintiff states that officers banged on his cell door and called his name and that Nurse Kelly, who was on standby with Plaintiff's medication, failed to follow protocol when encountering an unconscious inmate. Plaintiff claims Kelly did not take his vital signs or attempt to revive him.[2] He further alleges that PA Flury, Dr. Ottey, and Director of Nursing Janice Gilmore continue to refuse to reorder medical testing to detect toxins. ECF No. 1 at pp. 5-6.

In addition to "certain food portions" causing his symptoms, Plaintiff claims that the Lithium he is administered by medical staff is also responsible. Plaintiff states that the only hope he has to obtain legitimate tests for toxins is to be transported to an outside hospital for the tests.[3] On February 8, 2013, Plaintiff again feigned losing consciousness and was transported to a hospital. Once there, Plaintiff claims that staff at NBCI communicated with hospital staff claiming Plaintiff had psychological issues and that his complaints regarding his symptoms as well as his requests for testing should not be taken seriously by hospital staff. Plaintiff claims that testing began at the hospital, but was abruptly cancelled by a doctor who pretended to be angry. Plaintiff asserts that the testing was cancelled due to pressure from prison personnel, but two tests were completed for blood sugar and electrolytes. ECF No. 1 at p. 6. Plaintiff admits Ottey has ordered blood and urine testing, but states the tests are "frivolous to the issue at hand." Id. at p. 7.

Plaintiff also claims that correctional staff has been deliberately indifferent to his serious medical need by dismissing his administrative remedy procedure complaints (ARPs) regarding the issue. He states Lt. Wilt and Warden Shearin's dismissals of his ARPs exhibit deliberate indifference and alleges his appeals of those dismissals to the Commissioner of Correction are the result of mail "in all probability" being confiscated by NBCI officers. He asserts there is an ongoing problem with the loss or theft of outgoing mail from the institution and, based on that history, he did not attempt to exhaust administrative remedies before filing the instant complaint, believing he would put his health in jeopardy by doing so. ECF No. 1 at pp. 7-8.

Preliminary Injunction

A preliminary injunction is an extraordinary and drastic remedy. See Munaf v. Geren, 553 U.S. 674, 689-90 (2008). To obtain a preliminary injunction, a movant must demonstrate: 1) that he is likely to succeed on the merits; 2) that he is likely to suffer irreparable harm in the absence of preliminary relief; 3) that the balance of equities tips in his favor; and 4) that an injunction is in the public interest. See Winter v. Natural Resources Defense Council, Inc, 555 U.S. 7, 129 S.Ct. 365, 374 (2008); The Real Truth About Obama, Inc. v. Federal Election Commission, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, _U.S. _ , 130 S.Ct. 2371 (2010), reinstated in relevant part on remand, 607 F.3d 355 (4th Cir. 2010) (per curiam).

In his multiple Motions for Preliminary Injunctive Relief[4] Plaintiff alleges an order requiring him to be transported to an outside hospital for medical testing is necessary in order to insure he is in fact tested and the true results are communicated to him. He claims the tests provided to him thus far either do not test for the appropriate substances or the results have been altered. Plaintiff further asserts that Defendants have too much to lose by providing him with the appropriate tests or the actual results. Defendants oppose each of Plaintiff's motions and incorporate by reference their Motion for ...

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