United States District Court, D. Maryland
STEPHANIE A. GALLAGHER, Magistrate Judge.
Plaintiff Ronnie Wimbush filed this 42 U.S.C. § 1983 action against Defendants Paul Matera, MD, Peter Stanford, Physician Assistant ("PA"), Corizon, Inc. ("Corizon") (collectively, "the Corizon Defendants"), and Wexford Health Sources, Inc. ("Wexford"), alleging that the Defendants violated his Eighth Amendment rights by failing to provide him with proper medical care while incarcerated in the Maryland correctional system. [ECF Nos. 1, 63]. Presently pending before the Court are cross-motions for summary judgment filed by Mr. Wimbush and the Corizon Defendants, [ECF Nos. 116, 122], and cross-motions for summary judgment filed by Mr. Wimbush and Wexford. [ECF Nos. 117, 120]. I have reviewed both sets of cross-motions, oppositions, and replies thereto. No hearing is deemed necessary. See Loc. R. 105.6 (D. Md. 2014). For the reasons set forth herein, Plaintiff's Motion for Summary Judgment against the Corizon Defendants will be DENIED, and the Corizon Defendants' Cross-Motion for Summary Judgment will be GRANTED IN PART and DENIED IN PART. Plaintiff's Motion for Summary Judgment against Wexford will be DENIED, and Wexford's Cross-Motion for Summary Judgment will be GRANTED.
Mr. Wimbush is an inmate in the Maryland correctional system. On July 11, 2011, Mr. Wimbush commenced the instant suit pro se against Dr. Paul Matera and PA Peter Stanford, both of whom provided medical care to Mr. Wimbush while he was incarcerated at Eastern Correctional Institution ("ECI"). [ECF No. 1]. Mr. Wimbush alleged that Dr. Matera and PA Stanford failed to provide him with proper medical care for his severe ankle pain, in violation of the Eighth Amendment of the U.S. Constitution. Id. Dr. Matera and PA Stanford filed a motion to dismiss, or, in the alternative, for summary judgment, which Judge Bredar held in abeyance while the defendants supplemented their motion as directed by the court. [ECF Nos. 11, 24]. On July 2, 2012, Judge Bredar denied Dr. Matera and PA Stanford's supplemental motion, and granted Mr. Wimbush's motion for appointment of counsel. [ECF No. 44].
On February 4, 2013, Mr. Wimbush, now represented by counsel, filed an amended complaint that added claims for supervisory liability and policy and custom liability against both Corizon and Wexford. [ECF No. 63]. Corizon was the contractual medical services provider for inmates in the Maryland Department of Public Safety and Correctional Services ("DPSCS") system until July 1, 2012, and Wexford has been the contractual medical services provider for DPSCS inmates since July 1, 2012. Id. Prior to July 1, 2012, Wexford was a utilization management contractor for DPSCS. Id. Wexford filed a motion to dismiss, or, in the alternative, for summary judgment, which Judge Bredar granted in part and denied in part. [ECF Nos. 76, 85].
On August 1, 2014, Mr. Wimbush filed motions for summary judgment against the Corizon Defendants and Wexford, both of whom filed cross-motions. [ECF Nos. 116, 117, 120, 122]. These motions are now ripe for adjudication. Because the claims against the Corizon Defendants and Wexford overlap, this memorandum opinion addresses both sets of crossmotions for summary judgment.
A. Corizon Defendants (pre-July 1, 2012)
Mr. Wimbush has been incarcerated in the Maryland correctional system since April, 2009. Pl. Mot. for Summ. J. against Corizon Defendants ("Pl. Mot. against Corizon Defs.") 6. Prior to his incarceration, Mr. Wimbush sustained a severe fracture in his right ankle, which required surgical repair at the University of Maryland Medical System's Shock Trauma Unit ("UMMS") in June and July, 2008. Corizon Defendants Cross-Mot. for Summ. J. ("Corizon Defs. Cross-Mot."), Exh. 20. The discharge summary noted that Mr. Wimbush had a history with substance abuse. Id. When Mr. Wimbush entered the Maryland Reception, Diagnostic and Classification Center ("MRDCC") on April 26, 2009, he was immediately evaluated for his right ankle pain and assessed by PA Susann Galloway as having chronic pain. Id., Exh. 1-B, p. 8. PA Galloway offered Mr. Wimbush Tylenol 3 (Tylenol with codeine) and Motrin to control his pain until she received his medical records from UMMS and could confirm his pain medications from his primary doctor. Id. Mr. Wimbush refused the interim medication. Id. PA Galloway referred Mr. Wimbush to the chronic care clinic, and requested that he be provided a bottom bunk. Id. The next day, April 27, 2009, Mr. Wimbush was evaluated by Dr. Sunday Nwosu after requesting pain medication. Id., pp. 11-12. Dr. Nwosu prescribed Mr. Wimbush Tylenol 3 for pain relief, and ordered an X-ray of his right ankle and a cane for ambulation. Id.
Mr. Wimbush did not submit any further complaints of pain until November, 2009. It is unclear from the record whether he was taking Tylenol 3 throughout this time. On November 30, 2009, Mr. Wimbush submitted two sick call request forms, complaining of his pain, but refused his sick call appointment on December 2, 2009. Id., Exh. 19.
Mr. Wimbush was transferred to ECI on December 9, 2009. Id., Exh. 1-B, p. 17. He was not taking pain medication at the time of the transfer. Id. Mr. Wimbush was evaluated that day by Nurse Ellen Moyer, who reviewed his medical records from MRDCC and noted his chronic pain. Pl. Mot. against Corizon Defs., Exh. 9. Nurse Moyer did not prescribe pain medication. Id. Mr. Wimbush submitted five sick call request forms between December 15, 2009 and December 20, 2009. Id., Exh. 11. He complained of his severe ankle pain, and that he "ha[s] not had any medicine since 12-3-09." Id. On December 22, 2009, PA Stanford responded to Mr. Wimbush's sick call requests, assessed his right ankle pain, and explained to Mr. Wimbush that his "pain med consult" was still pending. Id. PA Stanford noted that Mr. Wimbush "agree[d] to await consult results." Id. According to PA Stanford, he did not prescribe pain medication to Mr. Wimbush at this time because he was waiting for the chronic care consult. Id., Exh. 5, Tr. 96:17-20 (Stanford Deposition). PA Stanford discussed interim pain management options with Dr. Mathis, the regional supervisor, the next day. Id., Exh. 11. On January 13, 2010, PA Stanford noted that Mr. Wimbush's "pain consult" was still pending, and he was considering prescribing Ultram and Elavil, and that he would discuss these possible medications with Dr. Mathis. Id., Exh. 13.
On January 19, 2010, Nurse Frances Morthole responded to a sick call request form Mr. Wimbush submitted on January 5, 2010. Id., Exh. 14. She ordered high top boots for Mr. Wimbush and prescribed him Naprosyn, a non-steroidal anti-inflammatory medication (NSAID), for pain. Id. Nurse Morthole evaluated Mr. Wimbush again on February 2, 2010, after he stated that the Naprosyn was not helping his pain. Id., Exh. 15. She referred Mr. Wimbush to a physician assistant for further evaluation of his pain. Id. PA Maryam Messforosh evaluated Mr. Wimbush on February 20, 2010, and instructed him to continue taking Naprosyn and advised him to order an arch support through his housing unit. Corizon Defs. Cross-Mot., Exh. 1-B, p. 28.
On March 3, 2010, Nurse Morthole prescribed Mr. Wimbush Neurotonin, a nerve-pain medication, by submitting a non-formulary drug request that was approved by Dr. Mathis. Pl. Mot. against Corizon Defs., Exh. 16. On March 30, 2010 Mr. Wimbush submitted a sick call request form complaining that the Neurotonin was not working. Corizon Defs. Cross-Mot., Exh. 1-B, p. 31. In response, Dr. Matera evaluated Mr. Wimbush on April 5, 2010. Id., pp. 32-33. Dr. Matera increased Mr. Wimbush's dosage of Neurotonin and advised him to follow an exercise program and refrain from weight or heavy lifting. Id. On April 20, 2010, Dr. Matera assigned Mr. Wimbush to a bottom bunk bed and provided him with an elastic brace to help stabilize his ankle. Id., pp. 34-35; Exh. 1-A, ¶ 9.
On June 1, 2010, Dr. Matera evaluated Mr. Wimbush again and noted that "now Neurotonin was helping a lot per [inmate]." Id., Exh. 1-B, p. 36. Because he was on a low dose of Neurotonin, Dr. Matera increased Mr. Wimbush's daily dosage. Id., Exh. 1-A, ¶ 10. Nurse Morthole evaluated Mr. Wimbush on July 6, 2010, and noted that Mr. Wimbush was still experiencing ankle pain and requested a new ankle brace. Id., p. 41. Mr. Wimbush submitted a sick call request form on July 31, 2010, complaining that his medication was not working. Id., p. 43. When Dr. Matera evaluated Mr. Wimbush on August 3, 2010, Mr. Wimbush requested different shoes, stated that Neurotonin and Naprosyn were not helping, and that Lyrica, a different nerve-pain medication, had helped in the past. Id., pp. 44-45. After examining Mr. Wimbush, Dr. Matera prescribed a 60-day supply of Lyrica, and advised Mr. Wimbush to continue his exercise program and refrain from sports or yard activities. Id. Dr. Matera submitted a non-formulary drug request for the Lyrica prescription, which was approved by Dr. Mathis. Id., p. 46.
On September 21, 2010, Mr. Wimbush submitted a sick call request form, complaining that his pain had gotten worse. Id., p. 48. At the time, Mr. Wimbush was prescribed both Lyrica and Neurotonin. Id., pp. 49-50. Dr. Lino Quilo in the chronic care clinic evaluated Mr. Wimbush on September 24, 2010 and renewed his medications. Id., pp. 49-50. Dr. Quilo submitted a non-formulary drug request for a 120-day supply of pregabalin (for which Lyrica is the trade name), which was denied. Pl. Mot. against Corizon Defs., Exh. 21. The same day, in an administrative note, Nurse Jennifer Castanares recorded, "Lyrica non-form request denied." Id., Exh. 23. The next day, Mr. Wimbush submitted a sick call request form requesting Lyrica. Corizon Defs. Cross-Mot., Exh. 1-B, p. 52. In response, PA Stanford saw Mr. Wimbush on September 29, 2010 and noted that Lyrica had been denied. Id., p. 53. Mr. Wimbush submitted three sick call request forms on October 3, 2010, complaining of his pain and requesting Lyrica. Id., pp. 54-56. He did not show up for his sick call appointment with PA Stanford on October 6, 2010 or October 8, 2010. Pl. Mot. against Corizon Defs., Exh. 24. In his no-show notes, PA Stanford wrote that "Lyrica was d/c'ed by Pain Committee see RN note of 9/24/10." Id.
Between October, 2010 and June, 2011, Mr. Wimbush submitted multiple sick call requests forms, all of which were addressed within a few days of submission. Id., pp. 54-104. During this timeframe, Mr. Wimbush was never again prescribed Lyrica. He was consistently kept on Neurotonin in varying doses,  given several different NSAID medications, provided with a new ankle brace and special elastic stockings, and screened with X-rays of his ankle. Id. He was also regularly seen by Dr. Quilo in the chronic care clinic. Id. Mr. Wimbush was transferred to North Branch Correctional Institution ("NBCI") on June 28, 2011.
B. Wexford (post-July 1, 2012)
At the time Wexford became the contractual medical services provider for DPSCS inmates, Mr. Wimbush was incarcerated at NBCI and receiving Ultram (a pain medication) and Tegretol (a nerve-pain medication) for his chronic ankle pain. Pl. Mot. for Summ. J. against Wexford ("Pl. Mot. against Wexford"), Exh. 4. He was also utilizing an ankle brace and cane. ECF No. 76, Exh. 4, ¶ 5. On August 10, 2012, Mr. Wimbush was seen by Dr. Colin Ottey, the regional medical director, for a scheduled provider visit, where Mr. Wimbush reported that he was still experiencing pain in his right ankle. Pl. Mot. against Wexford, ...