KENYATTA C. ROSS #290-752, Plaintiff,
WEXFORD HEALTH SOURCES, INC., et al., Defendants.
ROGER W. TITUS, District Judge.
This 42 U.S.C. § 1983 prisoner civil rights action seeks money damages and injunctive relief for the alleged denial of proper medical care. Kenyatta C. Ross ("Ross"), a Maryland Division of Correction ("DOC") prisoner housed at North Branch Correctional Institution ("NBCI"), claims that prison health care providers have delayed and/or withheld proper diagnostic tests and treatment for an elbow injury sustained in April of 2010, resulting in permanent nerve damage, daily pain, and discomfort. Ross named individual health care providers Ava Joubert, M.D., Colin Ottey, M.D., Renalto Espina, M.D. (hereinafter "Espina"), Stephen Ryan, M.D., and Physicians' Assistants Greg Flury and Lisa Schindler. Prison health care providers Wexford Health Sources, Inc. (hereinafter "Wexford") and Corizon, Inc. were also named in the Complaint.
Defendants Corizon, Joubert, Ottey, Flury, Ryan and Schindler have been granted summary judgment or dismissed from the case. ECF Nos. 27 and 28. Defendants Wexford and Espina have filed court-ordered supplemental dispositive motions construed as Motions for Summary Judgment. ECF Nos. 29 and 31. Plaintiff has filed a cross Motion for Summary Judgment (ECF No. 35), opposed by both remaining Defendants (ECF Nos. 37 and 38). A hearing is not needed to resolve the constitutional issues presented. See Local Rule 105.6. (D. Md. 2011).
Standard of Review
Pursuant to Federal Rule of Civil Procedure 56(a):
A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment 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. The court should state on the record the reasons for granting or denying the motion.
Fed. R. Civ. P. 56(a). The "party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, ' but rather must set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court should "view the evidence in the light most favorable to... the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witnesses' credibility." Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court must, however, also abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). "The party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of [its] pleading, but must set forth specific facts showing that there is a genuine issue for trial." Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 240 (4th Cir. 1988).
Eighth Amendment Right to Medical Care
As discussed fully in the Memorandum Opinion of June 24, 2013, Ross must satisfy the "objective" component of his Eighth Amendment claim by illustrating a serious medical condition, see Hudson v. McMillian, 503 U.S. 1, 9 (1992); Estelle v. Gamble, 429 U.S. 97, 105 (1976); Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995); Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998), and if successful must then prove the second "subjective" component of the Eighth Amendment standard by showing deliberate indifference on the part of Defendants. See Wilson v. Seiter, 501 U.S. 294, 303 (1991). Ross is not entitled to unqualified access to health care, see Davis v. Williamson, 208 F.Supp.2d 631, 633 (N.D. W.Va. 2002) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)), and mere disagreement with the course of treatment does not state an Eighth Amendment claim,  see Taylor v. Barnett, 105 F.Supp.2d 438, 487 (E.D. Va. 2000) (citing Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)).
The following facts, gleaned from the medical record, are discussed more fully in the previous Memorandum Opinion, but are reiterated as needed here. On April 4, 2010, Ross, who suffers from sickle cell anemia,  asthma, and renal disease, indicated he had pain in his right elbow lasting for three weeks. Ross reported a "popping sound with extension" and swelling. Examination revealed mild pain with motion. A physician's assistant ("PA") diagnosed a sprain and provided an ACE wrap. Ross did not appear for a scheduled appointment with a physician, but thereafter complained of generalized joint pain and indicated he struck his elbow on his bunk. Ross was prescribed four months of acetaminophen (for pain relief) and indomethacin (for relief of pain and inflammation) by another PA, who found no swelling and equal grip strength with a slight decrease in elbow extension due to pain. The PA requested that Ross be provided physical therapy ("PT") for the elbow.
A physical therapy ("PT") evaluation was performed on May 6, 2010, at which time Ross reported he injured the elbow six weeks earlier while doing pullups. Although there was less swelling, Ross indicated that stretching caused pain. Ross missed his May 18, 2010 PT session, but on May 27, 2010, reported to Physical Therapist Lloyd Hott that PT decreased his pain. An x-ray of the elbow taken in July of 2010 showed no evidence of acute fracture, disclocation or subluxation.
On January 20, 2011, a PA examined Ross, noting that PT no longer provided therapeutic benefit, and that Ross continued to have pain despite medication. The PA noted that the elbow had full range of motion but lacked some extension. Ross indicated he could perform his work detail as a dietary attendant carrying up to ten meal trays, but could not do pullups or pushups without pain. An orthopedic consultation was suggested. On January 22, 2011, glucosamine chondroitinwas added to Ross's treatment regimen.
Ross was seen by PAs and nurses several times during January and February of 2011. On February 15, 2011, he was approved for outside consultation with Dr. Shelton, a pain ...