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Ervin v. Shearin

United States District Court, District of Maryland

December 12, 2014

ROGER ERVIN, Plaintiff


Ellen L. Hollander, United States District Judge

Plaintiff Roger Ervin, who is self-represented, is an inmate at the State’s North Branch Correctional Institution (“NBCI”). He filed suit (ECF 1) under 42 U.S.C. § 1983 against the former Warden, Bobby Shearin, [1]alleging that he was unlawfully denied certain accommodations required by his medical condition. In support of his allegations, plaintiff appended medical and other records to his suit. He seeks compensatory and punitive damages. ECF 1 at 6. Plaintiff subsequently amended his complaint on two occasions: ECF 8 (filed December 2013) and ECF 15 (filed March 2014).

Now pending is defendant Shearin’s motion to dismiss or for summary judgment, supported by exhibits. ECF 21. In addition, plaintiff seeks to compel discovery and impose sanctions. ECF 47. Although plaintiff did not file an opposition to ECF 21, [2] he filed a response (ECF 28) to the court’s Order of March 18, 2014 (ECF 19) directing defense counsel to show cause as to plaintiff’s request (ECF 18) for a Temporary Restraining Order.

The court finds a hearing in this matter is unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, plaintiff’s motion to compel and for sanctions shall be denied and defendant’s motion to dismiss or for summary judgment, construed as a motion for summary judgment, shall be granted.

Factual Background[3]

Plaintiff claims that on January 29, 2012, while he was being escorted to the Segregation Unit, he told Sgt. Fink that he had a medical order requiring his assignment to a bottom bunk bed. Ervin states he was ignored and told by Fink and the “other official” to get on the top bunk or “they would be force[d] to put” Ervin onto it. ECF 1 at 4. The following day, when Ervin was attempting to get off the bunk, he fell and hit his head on the side of a table. He claims he “busted” his head and injured his neck, back, and shoulder, resulting in numbness to his right arm. ECF 1 at 6. Ervin was sent to a hospital in Cumberland, Maryland, where he was treated for his injuries.

In his Amended Complaint, ECF 8, to which Ervin attached medical records, Ervin added as defendants Wexford Health Sources, Inc. and Colin Ottey, M.D. ECF 8 at 10. Neither of those parties was served with the Amended Complaint, however.[4]

In ECF 8, Ervin claims that, upon his return from the hospital, he was told his cell mate had been locked up for assaulting him. But, Ervin assured the officer he sustained the injuries when he fell off the bunk. ECF 8 at 5. Ervin claims he was then assigned to a lower tier by other correctional staff because they were concerned about him going up and down the stairs in light of his physical condition. And, he alleges that he has “been under attack [ever] since” by both medical staff and the warden who are underminding [sic] [his] medical position.” Id.[5]

Ervin states he required a “medical shower” for nose bleeds for one year. Id. Further, he alleges that he was told he has a sinus blockage near his eye, but medical staff never followed up with an ENT specialist. Id. at 6. In addition, Ervin alleges that he was offered a prescription for medication to treat high blood pressure, but he declined to take it because he feared the medication would be abruptly stopped by medical staff, causing him additional health issues. According to Ervin, he raised a concern about the medication and asked if a cardiovascular diet could be tried instead, but claims he was told if he did not accept the treatment offered he would receive no treatment. Ervin seems to indicate that his primary health problems are his sinus blockage and his eyesight. Id. at 9-10.

In a “Supplemental Complaint, ” i.e., a second amended complaint, ECF 15, filed under oath, Ervin named three additional correctional officers as defendants: Sergeant G. Brewer, Sergeant A. Gilpen, and C.O. II Oart. They have not been served with the suit.

In ECF 15, Ervin claims he is disabled by virtue of his glaucoma. Id. at 3. According to Ervin, he was prescribed bottom bunk status by “a doctor/physician” after he arrived at NBCI, until he was “maliciously” placed on administrative segregation by Sgt. Gilpen on September 23, 2013, “solely to deprive him of his bottom bunk or having to deal with [plaintiff’s] medical condition.” Id. Further, Ervin alleges that when he was assigned to administrative segregation he was denied a daily shower as prescribed and did not receive eye drops to treat his glaucoma. Id. According to plaintiff, he was denied access to the prescribed medicine for a total of seven days. Id. at 4. Ervin also claims he has “been suffering continuous bleeding from the nose, that required him to be placed on single cell status bottom bunk, as prescribed, ” but defendants have “intentionally ignored or disregarded” his “medical conditions, by continuously moving him [and] placing him on a top bunk solely to deprive him of a prescribed treatment.” Id. at 5. Further, Ervin asserts that his personal property was lost when he was moved to administrative segregation and that the paperwork he had was damaged or destroyed by Gilpen. Id. at 4.

Ervin claims that, on an unspecified date, Seville denied him his lunch tray. Id.[6] And, on October 29, 2013, both Seville and Oart failed to feed him or give him his prescribed shower. Id. When Ervin was released from administrative segregation he was assigned to a top bunk, then two days later he was re-assigned to a single cell. His assignment to the single cell lasted for one week and he was again assigned to the top bunk of a cell.[7] “Consequently, [Ervin] suffered [a] sever [sic] nose bleed.” Id. at 4. After suffering the nose bleed, Ervin claims he was once again moved to a bottom bunk, where he remains. Id. at 5.

Ervin concludes that as a result of the defendants’ actions he has “experience[ed] extensive difficulties with his sight, ” which continues “to degenerate, ” and he suffers “continuous bleeding from the nose.” ECF 15 at 5. He claims his assignment to a top bunk constituted a malicious and intentional disregard of his medical conditions and was done to deprive him of prescribed treatment. Id. In addition, he alleges that defendants have failed “to safeguard [his] medical needs” by failing to place “clinical alerts” on his identification card and by failing to confirm his cell status before moving him. Id.

On March 18, 2014, plaintiff filed a motion for temporary restraining order (ECF 18), seeking to compel correctional officials to follow medical orders requiring his assignment to a single cell and a bottom bunk due to his poor eyesight caused by glaucoma. Id. In an Order of the same date, March 18, 2014, this court required defense counsel to respond. ECF 19. Counsel did so on April 10, 2014. ECF 20. Counsel asserted, inter alia, that, since December 2013, Ervin has been housed in a single cell. ECF 20 at Ex. B. And, according to defendant, prior to Ervin’s assignment to a single cell, he was assigned to a bottom bunk. Id.

Ervin replied on May 16, 2014, ECF 28, and submitted a variety of exhibits, including his own Declaration. Ervin asserted, inter alia, that Shearin’s policy of not noting special medical orders pertaining to housing assignments on inmate’s identification cards contributes to violations of those orders.

On August 14, 2014, this court issued an Order (ECF 37) denying Ervin’s motion for a temporary restraining order based on information supplied by Shearin. In that Order, this court observed, in part, ECF 37 at 2:

[D]efendants assert that there have been no medical orders issued requiring plaintiff’s assignment to a single cell; however, since December of 2013, he has been housed in a single cell. ECF 20 at Ex. B (Affidavit of Lt. Pennington, Housing Unit Manager). Prior to his assignment to a single cell, plaintiff was assigned to a bottom bunk in a different cell. Id. Additionally, the only medical orders on file for plaintiff pertaining to security issues is one directing that plaintiff be handcuffed using oversized cuffs due to shoulder pain.[8]Id. Another medical order requiring assignment to a bottom tier unit for twelve months, issued on August 3, 2013, was rescinded three days later because the assignment would ...

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