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Wallop v. Buck

United States District Court, D. Maryland

September 22, 2014

GREGORY WALLOP, #347-896, Plaintiff,


PAUL W. GRIMM, District Judge.

Gregory Wallop ("Wallop") is suing Bobby Shearin, former Warden of North Branch Correctional Institution ("NBCI"), Registered Nurses Carla Buck, Dawn Hawk and Monica Metheny-Wilt, Doctor Colin Ottey, Medical Records Director Olivia Ryan, and Wexford Health Sources, Inc. ("Wexford") pursuant to 42 U.S.C. ยง 1983. (Compl., ECF No. 1). Defendants have filed motions to dismiss or, in the alternative for summary judgment with verified exhibits, [1] which are unopposed.[2] No hearing is needed to resolve the issues. See Local Rule 106.5 (D. Md. 2014).

Plaintiff claims he was deprived of his Eighth Amendment right to medical treatment following an injury to his jaw received on March 23, 2012, when he was "elbowed" during a basketball game in prison. He seeks a declaratory judgment as well as money damages and injunctive relief mandating his transfer from NBCI[3] and additional medical care, including surgery and a dental "night guard."[4] (Compl. 14, 24-25).

At the time Wallop was injured, defendants Nurses Buck, Hawk, Metheny-Wilt, Dr. Ottey and Director Ryan (the "Medical Defendants") were employed by Corizon, Inc. ("Corizon"), a health care corporation under contract to provide medical personnel to Maryland's prisons. Wexford was then under contract with the Department of Corrections, but held a more limited role in providing utilization review services for the state's prisoners. Effective July 1, 2012, Wexford became both the utilization review provider and the entity through which Maryland's prison health care personnel, including the Medical Defendants, were employed.[5]


Immediately after he was elbowed in the jaw, Wallop informed the correctional officer on duty that he had been injured and needed medical attention. The officer contacted the medical department, but was told by a member of the medical staff to call back. Wallop asserts that when the officer called back, he was told to have Wallop put in a sick call slip. The officer brought Wallop the slip, which was filled out and placed in the designated box. Wallop attached the sick call slip, which is dated "March 23rd" but stamped "RECEIVED APR 02, 2012." (Compl. Ex. B, ECF No. 1-1).

Wallop asserts that over the following three days he submitted additional sick call slips daily, each time complaining of jaw pain and swelling, and spoke with members of the nursing staff, informing them of his discomfort and requesting pain medication. He claims that on each occasion, he was told that they could not give him any pain medication. (Compl. 3-4). Wallop attached the March 26, 2012 sick call slip, which was received that same day. (Compl. Ex. C, ECF No. 1-1).

Wallop states that, on March 26, 2012, Sergeant Youngblood noticed his swollen jaw. After he told her what happened, Sgt. Youngblood contacted medical personnel who indicated Wallop would be evaluated. The evaluation did not occur until March 28, 2012, when a nurse examined Wallop, provided no pain medication, and recommended he be treated by a doctor. ( Id. at 5-6). Wallop asserts that he was finally seen by Dr. Alan Graves, DDS, on March 30, 2012. Wallop's medical records show that on that date, Dr. Graves examined Wallop, took Panorex X-rays, and determined that he had a fractured jaw. (Compl. Ex. N, ECF No. 1-1). Dr. Graves placed Wallop on a puree diet and prescribed Tylenol #3 for the pain. (Compl. 5-6).

Wallop indicates that he received no care over the course of the next several days, due to a dispute between the medical and dental departments as to who was responsible for his care. ( Id. at 7-8). Wallop was in pain and having difficulty eating. On April 13, 2012, he again saw Dr. Graves, who extended the prescription for pain medication. ( Id. ).

On April 24, 2012, Wallop received oral surgery at the University of Maryland. He was then transported to another facility and later taken to Jessup Correctional Institution ("JCI"). His complaints of pain were ignored for several hours before he was provided medication. Wallop asserts that the nurses failed to follow prescription instructions to provide medication every six hours, because in prison, medication is distributed only twice a day. ( Id. at 10). On May 25, 2012, Wallop was taken to the infirmary at Western Correctional Institution and on May 4, 2012, was discharged and transported back to NBCI. (ECF No. 28-4, p. 1). Shortly thereafter, Dr. Ottey allegedly amended plaintiff's prescription for pain medication so that it would be administered only twice a day, and prescribed an oral rinse, in contravention of the oral surgeon's directives. (Compl. 11).

Wallop asserts that he was informed that his bite pattern would never be the same, his fracture was healing incorrectly, and he was beginning to develop an infection and gingivitis. ( Id. at 12). Over the course of the next several days, the medical staff allegedly failed to provide him with his prescribed medical treatment, which consisted of pain medication, mouth rinse, and Ensure, a dietary supplement. ( Id. at 13-14). Wallop stated that one of the officers told him the decisions were made by the medical department and that there was nothing the officer could do. ( Id. at 14). Wallop asserts that the actions or inaction of the medical staff has resulted in his jaw healing incorrectly, his having to wear a night guard to ease his pain, continued issues with tongue biting, and his need for additional surgical procedures. ( Id. ).


A. Warden Shearin

Correctional defendant Bobby Shearin, Warden at NBCI at the time of the incident alleged, asserts that he played no role in providing medical treatment to prisoners, and requests dismissal of the claims against him or entry of summary judgment in his favor.

In support of his dispositive motion, Shearin has submitted his declaration in which he attests that he defers to the expertise of the medical authorities with regard to complaints involving prisoner medical care. (Shearin Decl., Shearin Mem. Ex. 3, ECF No. 28-11). Shearin also argues that Wallop did not fully exhaust his administrative remedies by filing Administrative Remedy Procedure ("ARP") complaints concerning medical care as required under the Prison Litigation Reform Act ("PLRA"); that he cannot be held liable as a supervisor for alleged wrongdoing on the part of medical personnel; and that he is entitled to qualified immunity from suit.

B. Medical Defendants

1. Medical care prior to July 1, 2012

The Medical Defendants' responses include hundreds of pages of Wallop's medical records, much of which is irrelevant, as well as two affidavits submitted by Dr. Ottey. The relevant medical history is summarized as follows.

Wallop, in his early thirties, suffered a sports-related jaw injury that resulted in chronic myofascial pain[6] and class I malocclusion.[7] (ECF No. 25-6, p. 2). On March 28, 2012, he was seen by Nurse Metheny-Wilt in response to a sick call slip submitted complaining of jaw pain resulting from a basketball injury. (ECF No. 35-2, p. 7). Wallop was referred to the on-site dentist, Alan Graves, DDS. (ECF No. 25-5, pp. 303-04). On March 30, 2012, Dr. Graves prepared a consult request for Wallop's evaluation by an oral surgeon for evaluation and treatment of a fractured jaw. ( Id., pp 247-48). This request was presented to Wexford for utilization review and approved on April 3, 2012. (ECF No. 35-2, p. 26; ECF No. 35-3, p. 2).

"[O]n April 24, 2012, Plaintiff was seen and evaluated by oral maxillo facial surgeon, James Murphy, M.D., at University of Maryland Medical System (UMMS')." (ECF No. 25-6, p.4; ECF No. 25-5, pp. 249-50). "At that time, Plaintiff reported altered sensation, altered bite and pain on chewing." ( Id. ). Examination revealed "no facial swelling, no step deficit [gap] of the mandible on palpation and good... bite." ( Id. ). Dr. Murphy noted "a right parasymphyseal fracture of the right jaw."[8] ( Id. ). To treat the injury, Wallop "was given the options of a soft diet, open reduction internal fixation of the fracture (ORIF'), or maxilla-mandibular fixation (MMF') with internal maxillary fixation (IMF') with screws."[9] (ECF No. 25-6, p. 4). Wallop "elected IMF screws with MMF." ( Id. ). "Dr. Murphy placed the screws and elastic bands to fuse the fracture and ordered Plaintiff placed on a full liquid diet" with Tylenol for pain, and advised him to rinse with Peridex[10]mouthwash, and to follow up in two weeks. ( ld. ).

On April 24, 2012, a request was presented to Wexford for utilization review of Wallop's reevaluation by the oral surgeon, and approved the same day. On May 8, 2012, Wallop was reevaluated at UMMS by the oral surgeon, who noted Wallop had done well with the surgery and had been compliant with his soft diet and mouthwash regimen. The oral surgeon recommended that Wallop continue use of his elastic bands, mouthwash, and soft diet for two more weeks and two weeks after that, return for a follow up prior to discontinuing use of the rubber bands. (ECF No. 25-5, pp. 252-56).

On or about May 18, 2012, a request was presented to Wexford for utilization review of reevaluation by the oral surgeon and to assess Wallop for poor healing and inflammation in the area of the screws. This request was subsequently approved and on May 29, 2012, Wallop was seen and evaluated by oral surgeon Matthew Lee, M.D. (ECF No. 25-4, p. 3; ECF No. 25-5, p. 261). Dr. Lee observed soft tissue swelling at the mandibular site, but noted that the fracture was healing well. (ECF No. 25-5, p. 261). Dr. Lee removed the mobile MMF screws, treated the soft tissue swelling at the IMF screws, replaced Wallop's elastic bands, ordered he receive a liquid diet and Peridex rinse after all meals, and be provided pain management, and return for follow-up in one week. ( ld. ).

On or about June 13, 2012, a request was presented to Wexford for utilization review for reevaluation by the oral surgeon for follow-up and to assess Wallop's complaints of pain, swelling and pus draining from the mouth. (ECF No. 25-4, pp. 4-5; ECF No. 25-5, p. 262). It was noted that Wallop had not complied with antibiotic treatment. ( Id. ). The reevaluation request was approved by Wexford and on June 26, 2012, Wallop was again evaluated at UMMS by Dr. Lee. (ECF No. 25-4, p. 5; ECF No. 25-5, p. 264). At that time, Wallop complained of jaw pain in the area of the IMF screws and lower right pre-molar. On exam, no facial swelling or gross mobility of the mandibular area was noted; however, Dr.Lee noted that the soft tissue at the sites of the IMF screws were painful and completely covered. Dr. Lee assessed Wallop's fracture as healing well, but with redundant tissue[11] at the screw sites. Dr. Lee removed the screws and noted that removal of the lower right screw required an incision to uncover redundant tissue in that area. Dr. Lee recommended Wallop begin a soft mechanical diet and return for follow-up in one month. (ECF No. 25-5, p. 264).

2. Medical care on or after July 1, 2012

On July 1, 2012, Wallop submitted a sick call slip complaining of numbness at the right side of the jaw and cheek. (ECF No. 25-5, p. 205). On July 2, 2012, he was evaluated by dentist Scott Nichols, DDS. At that time, Dr. Nichols observed a draining fistula[12] in the area where the site screw was removed. Dr. Nichols completed a Panorex x-ray, ruled out an infection in the tooth, and opined ...

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