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Vance v. Shearin

United States District Court, D. Maryland

January 30, 2015




Benjamin E.J. Vance, a self-represented Maryland prisoner, filed suit pursuant to 42 U.S.C. ยง 1983, supported by exhibits, raising claims of inadequate medical care. ECF 1, 8.[1] Defendants Colin Ottey, M.D. and Wexford Health Sources, Inc. ("Wexford") (collectively, "Medical Defendants") have filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, ECF 18, 31, with exhibits.[2] Defendant Bobby P. Shearin, former Warden of North Branch Correctional Institution ("NBCI"), has also filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, ECF 20, with exhibits.[3] Vance has filed oppositions to the dispositive motions. ECF 22, ECF 23. The Medical Defendants and Shearin have replied. ECF 24, ECF 25.

On September 29, 2014, Vance filed a submission titled "Continued Violation In Above Captioned Complaint." ECF 38. He complained about a severe asthma attack that occurred on September 22, 2014, which he alleged was not adequately treated. Id. I construed ECF 38 as a motion for preliminary injunction, and issued an order to defendants to show cause why preliminary injunctive relief should not be granted. ECF 39. The responses are at ECF 40-43, and Vance's reply is at ECF 46.

On January 23, 2015, Vance filed additional correspondence that substantially reiterates his claims. ECF 47. To the extent that ECF 47 contains new claims, I will not consider them here. Vance may present them in a new, separate complaint.

No hearing is necessary to resolve the motions. Local Rule 105.6. For the reasons that follow, I shall grant defendants' motions and deny ECF 38 and ECF 47.


On January 28, 2014, Vance, an inmate incarcerated at NBCI, filed suit alleging that defendants acted with deliberate indifference to his serious medical needs by failing to properly treat his asthma attacks and genital rash. ECF 1. He supported his suit with the Declaration of Roger Hargrave, another inmate. ECF 1-1. Vance filed a Supplemental Complaint on February 26, 2014, see ECF 8, with exhibits. See ECF 8-1. He claims he suffered asthma attacks in his cell on August 11, 2013 and August 26, 2013, and received no response to his calls for help. Further, Vance contends that Shearin's violation of policies, procedures, and directives set forth by the Maryland Department of Public Safety and Correctional Services ("DPSCS") was detrimental to his health, safety and welfare. ECF 8 at 4.[4] As redress, he seeks damages and injunctive relief to prevent retaliation against him for filing suit. ECF 1 at 8.

A. Vance's Allegations

Vance alleges that, since arriving at NBCI on July 26, 2013, he has received inadequate medical care for his worsening asthma. He alleges that he suffered his first emergency asthma attack while at Jessup Correctional Institution ("JCI") on July 5, 2013, ECF 8 at 1, and the attacks have "dramatically worsened...." Id. at 2. Further, he avers that he was not placed on chronic care supervision until November 17, 2013. Id. at 2. Vance asserts: "Dr. Ottey had my medical file since July 26th 2013 and did not honor any request for nebulizer treatments...." Id.

Vance states that on August 11, 2013, he had an asthma attack and asked for medical assistance. Cellmate Roger Hargrave "made numerous request[s] to correctional officer's [sic] for emergency medical attention" for Vance. Id; see also ECF 1-1, Ex. 1. Officer Milo indicated there was another medical emergency but help for Vance would be forthcoming. ECF 8 at 2. None arrived. Vance also complains that he was not permitted to order or purchase a fan. Id. at 3. In addition, Vance asserts that "out-of-doors exposure" was necessary to help him breathe and relieve the pressure on his lungs due to the high temperature in his cell and lack of a fan. Id.

According to Vance, on August 26, 2013, he suffered another asthma attack and experienced chest pain and loss of breath. Vance claims he "passed out and did not revive until morning, " and was not provided emergency treatment, despite his cellmate's calls for help. ECF 1; ECF 8 at 2. Vance concludes that lack of emergency medical attention has caused him permanent chest aches, increased headaches due to severe oxygen loss, increased incidents of asthma attacks, and "constant muscle contusions in [his] chest cavity and heart flutters."[5] ECF 8 at 3.

Vance also complains that he was not examined by a physician for a genital rash that he contracted sometime between August 5, 2013, when NBCI went on lockdown, and August 15, 2013, when inmates were again permitted to shower. He describes the condition as "some type of bacterial infection." ECF 1 at 3. Vance asserts that on September 11, 2013, Nurse Kristy Cortez went to his cell door, gave him a fungal ointment, and recommended keeping the area clean and dry, but did not examine the rash. ECF 1 at 4.

On September 13, 2013, Nurse Vicki Ward went to Vance's cell and provided him with Tolnafate 15 gm 1% cream for fungus treatment, which caused inflammation and irritation. Id. On November 1, 2013, another medical provider prescribed Hydrocortisone cream 1% for Vance. The rash cleared but returned later. Id.

In support of his claims, Vance has submitted the affidavit of Roger Hargrave, his cellmate. Hargrave avers that on September 12, 2013, and "various occasions before this date, [he] witnessed Benjamin Vance have several asthma attacks that required emergency medical attention." ECF 1-1 at 2. Hargrove further states, ECF 1-1 at 2:

Watching as Mr. Vance gasped for air would not work for me, so I immediately acted. First, I called out for a correctional officer, screaming, and banging on the cell door, but not officer was on the tier during the time of this incident, around 11am-12 noon. When a correctional officer did finally come on the tier (Ofc. Hill) whom [sic] was escorting a nurse, who was passing out medicine to other inmates, I told Ofc. Hill emergency medical attention was needed in cell 38, but Ofc. Hill and the nurse ignored and went about there [sic] business. 30 minutes later Ofc. Milo was informed of the emergency and still no medical attention ever came, and due to the humidity on this day I watched my cellmate Benjamin Vance pass out. Fearful and not knowing what to do I persisted screaming for help and banging to get an officer's attention and my cries for help were ignored. I felt abandoned and, but did not give up on helping my cellmate Mr. Vance. I applied cool rags to his head and squeezed his asthma inhaler into his mouth praying that whatever the device is supposed to do worked as several minutes passed, & Mr. Vance regained consciousness and again used his asthma inhaler, drank cool water, and laid down trying to relax his breathing.... Mr. Vance also asked for ice and was refused. The day and night came to an end with no emergency attention ever applied. This was the second time an incident like this happened and no medical attention was ever given.

B. Shearin's Motion

Shearin's exhibits include five declarations, ARP records, and Vance's medical records. See ECF 20-4 to ECF 20-9. In the Declaration of Frank Bishop, Jr., who succeeded Shearin as NBCI Warden, Bishop states that on August 5, 2013, NBCI was on lock down status after a life threatening assault was made on a correctional officer. ECF 20-3, Exh. 1. Due to security concerns, inmate movement was restricted until April of 2014, when the institution began to slowly resume its normal shower and recreation schedules. Id.

Bishop attests that health and medical care for inmates is provided by private health care contractors. He states he is not trained as a health care provider and, to the best of his knowledge, neither was Shearin. Id. [6]

Paul Pennington, NBCI Unit Housing Manager, attests that all inmate cells are equipped with hot and cold running water and include a sink and toilet. ECF 20-5, Ex. 3. And, all inmates have access to hygiene items. Id.

C. Medical Defendants' Motion

The Medical Defendants' dispositive motion is supported by verified copies of Vance's medical records, ECF 18-4, Exh. 1, and Dr. Ottey's Affidavit, ECF 18-5, Ex. 2. The medical records exceed 40 pages. Dr. Ottey is a licensed Maryland physician, employed by Wexford, who presently serves as the Medical Director of NBCI. ECF 18-5 at 1. Dr. Ottey has personally evaluated plaintiff and has also reviewed the relevant medical records. Id. The pertinent information is summarized as follows.

On May 29, 2013, Vance, then confined at Jessup Correctional Institution ("JCI"), submitted a sick call for asthma related symptoms and was seen the same day by Denvia Johnson, a physician's assistant. After consulting with Andrew Moultrie, M.D., Johnson prescribed an Albuterol[7] inhaler and scheduled Vance for a chronic care pulmonary clinic the following week. ECF 18-4 at 2-3.

On May 31, 2013, Vance was seen for a headache, insomnia, and nasal itching. On a scale of 10, he rated his pain as a 5. Vance was provided Tylenol and medication for cold symptoms. No shortness of breath was noted. ECF 18-4 at 4.

Vance submitted a sick call slip on June 19, 2013, complaining that he had not been seen for his chronic care visit for asthma. He also noted the asthma bothered him daily. ECF 18-4 at 40.

On June 26, 2013, Vance asked for "something to control his asthma" and was seen by John Moss, a physician's assistant. Vance complained the inhaler was not working and asked for a breathing test. The medical notes indicate Vance walked from his building to the medical unit with a steady gait and conversed without distress. Examination revealed his lungs were clear and his heart rhythms and respiration were even and clear. ECF 18-4 at 5-6. The inhaler was found to be functioning properly. Vance was educated about using the inhaler and expressed his understanding. Id.

Vance reported difficulty breathing on July 4, 2013, and was seen by Mercy Addai, R.N. ECF 18-5 at 4. Examination revealed that Vance's vital signs were within normal limits and he did not appear to be in apparent distress. Id. Vance started to cough when asked to use the Peak Flow, a device for measuring air flow from the lungs and assessing the severity of asthma. ECF 18, n. 4; ECF 18-4 at 7. A nebulizer[8] treatment and Albuterol inhaler were ordered for Vance. He was advised to return to the medical unit if his symptoms worsened. ECF 18-5 at 4.

Dr. Moultrie saw Vance on July 5, 2013, for a chronic care visit for asthma. Moultrie classified Vance's symptoms as "moderate persistent, " and noted that "Symptoms have worsened" and were occurring daily. ECF 18-4 at 9. In addition to the Albuterol inhaler, Moultrie prescribed Qvar. Id. at 10. Qvar is a steroid inhalant that prevents lung inflammation. ECF 18, n. 5. A follow-up chronic care visit was scheduled for three months and a chest x-ray was ordered to provide a baseline. ECF 18-4 at 10.

On July 8, 2013, Vance presented complaints of chest pain after exposure to pepper spray.[9] He was seen by Nnechi Chidueme, R.N. ECF 18-5 at 5. Scattered wheezes were observed on his upper lobes.[10] Dr. Moultrie was contacted, and Vance was given a nebulizer treatment per Dr. Moultrie's order. ECF 18-5 at 5. On July 10, 2013, Vance's x-rays were reviewed and "showed clear lung fields." Id. Moreover, "[n]o acute disease was noted." Id.

On July 20, 2013, Vance was seen by a medical provider, Mariama Coker, R.N., for shortness of breath and difficulty breathing. ECF 18-5 at 5. He complained his inhalers were not working. He appeared anxious and stated the heat was triggering his asthma. Vance's vital signs were stable with oxygen saturztion at 95 on room air. He was provided a nebulizer treatment. ECF 18-4 at 13. Vance was told to stay out of the sun and apply a cool towel to his forehead for heat relief. Id.

Vance was transferred from JCI to NBCI on July 25, 2013. ECF 18-4 at 14-16. His medications were reviewed and he was scheduled to be seen in the chronic pulmonary clinic in one week. No medications were transferred with Vance, and he was referred to the medication nurse for administration of his medicine. ECF 18-4 at 14-15.

On August 20, 2013, Dr. Ottey examined Vance in the chronic care clinic for asthma. The medical report states the asthma was "moderate persistent, " and relief of symptoms with an inhaler was noted. The record also reflects that Vance had not suffered any acute attacks or emergencies within the prior six months. ECF 18-4 at 17; ECF 18-5 at 6. According to Dr. Ottey, Vance never mentioned an asthma attack of August 11, 2013. ECF 18-5 at 6. Dr. Ottey continued Vance's Albuterol and Qvar. Id.

On September 9, 2013, Vance submitted a sick call request for a genital rash. ECF 18-5 at 6. According to Dr. Ottey, there is no evidence in plaintiff's medical records of a prior complaint of genital rash. Id. Vance complained of "jock itch" to Kristi Cortez, R.N. on September 11, 2013, when she came to his cell door. ECF 18-4 at 20. The medical chart reads: "Vital signs unobtainable and complete physical assessment not completed due to modified sick call at cell window/door and lock down status of institution." Id. The medical chart indicates there was no sign of infection on visual assessment by Cortez. Nevertheless, the nurse prescribed Tolnftate cream for Vance. ECF 18-5 at 6. And, the record does not reflect that plaintiff mentioned an asthma attack that occurred on August 26, 2013. Id.

The record does not indicate that Vance reported an asthma attack on August 26, 2013, or suffering asthma-related symptoms on that date. In his Affidavit, Dr. Ottey states that although Vance alleged in the sick call request that he had previously complained of the rash, there is nothing in the record reflecting a complaint ECF 18-5 at 6.

Vance submitted a sick call request on October 20, 2013, again complaining of a genital rash. He indicated the medicine provided to him was not working and his condition was worsening. Vance claimed it was his fourth such complaint. However, the medical records indicate it was his second such complaint. ECF 18-4 at 42; ECF 18-5 at 6.

Vance was seen by William Beeman, R.N., on November 1, 2013, for a rash and hemorrhoids. No evidence of infection was observed. Vance was given hydrocortisone ointment. ECF 18-4 at 22-26.

On November 17, 2013, Dr. Ottey saw plaintiff for his asthma, in the chronic care clinic. The medical record reflects that Vance had no acute asthma attacks or emergencies in the preceding six months. ECF18-5 at 7. Vance was continued on Albuterol and Qvar. ECF 18-4 at 27-29.

On December 2, 2013, Vance submitted a sick call request complaining of chest pain, congestion, and cold symptoms. ECF 18-5 at 7. On December 5, 2013, he was seen by Nurse Cortez for cold symptoms and was ...

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