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Shinard v. Wexford Health Services Inc.

United States District Court, District of Maryland, Southern Division

February 20, 2015

ALFRED SHINARD, #274483, Plaintiff,
WEXFORD HEALTH SERVICES, INC., et al., Defendants.




Alfred Shinard (“Shinard”), presently housed at the North Branch Correctional Institution (“NBCI”), filed a civil rights complaint against Defendant Wexford Health Services, Inc. (“Wexford”) and Dr. Ava Joubert seeking money damages. He alleges that in 2012, while confined at the Jessup Correctional Institution, he received a magnetic resonance imaging test (“MRI”) at Bon Secours Hospital (“BSH”) in Baltimore, Maryland and was informed that he had herniated disks and degenerative disk disease. He acknowledges that soon after the diagnosis he received an epidural injection, was prescribed Ultram and Neurontin for pain, and received a consult for physical therapy. The thrust of the Complaint goes to Shinard’s claim that after his transfer to NBCI in July of 2013, he was denied the pain medication and physical therapy with traction previously prescribed by the hospital physician and was placed on another pain medication, Torodol, without a physical examination. ECF No. 1. He claims that he continues to suffer from “chronic severe” pain in his back and numbness in his leg. Id.

Defendants have filed a Motion to Dismiss. ECF No. 18. Plaintiff has filed an Opposition and a Motion for Leave to Amend his Complaint. ECF Nos. 26 & 27. Defendants have filed a Reply. ECF No. 31. In addition, Shinard has filed Motions for Preliminary Injunction and to Appoint Counsel. ECF Nos. 28, 29, & 33. Defendants oppose Shinard’s request for emergency relief. ECF No. 32.


Defendants have filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6). Where matters outside of the pleadings, such as the medical record supplied by Defendants, are presented to and not excluded by the Court, the motion to dismiss under Rule 12(b)(6) must be treated as one for summary judgment under Rule 56, and all parties must be given the opportunity to present all material that is pertinent to the motion. See Waugh Chapel S., LLC v. United Food & Commercial Workers Union Local 27, 728 F.3d 354, 360 (4th Cir. 2013). The Court deems it appropriate to consider the extraneous materials, as they are likely to facilitate disposition of this case. Accordingly, the Motion shall be treated as a motion for summary judgment.

Summary Judgment is governed by Fed. R.Civ. P. 56(a), which provides, in part:

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 Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). In resolving the motion, 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, 645, 645 (4th Cir. 2002). However, 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)). Moreover, the court must abide by the “affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 778–79 (4th Cir. 1993) (internal quotation marks omitted).


Defendants assert that Plaintiff has failed to show that they exhibited deliberate indifference to his medical needs because he was provided with examinations, prescription pain medications, and treatment related to his back pain. ECF No. 18. They refer to the medical record, which shows that during 2013 and into 2014, Plaintiff was prescribed Neurontin, [1] Ultram[2] and Naproxen.[3] Id. Ex. B at pp. 10-11, 15-16, & 19-22. In addition, physician’s orders were written for weight and heavy lifting restrictions and for a renewal of Plaintiff’s cane. ECF No. 18, Ex. B at pp. 15-16. On March 14, 2014, Dr. Joubert ordered an x-ray of Plaintiff’s spine and Plaintiff was approved for another round of physical therapy. Id., Ex. B at pp. 27-28. Plaintiff received a physical therapy evaluation on March 25, 2014 and began his sessions soon after. Id., Ex. B at pp. 30, 35, 37 & 40.

On April 10, 2014, Dr. Joubert discussed Plaintiff’s Torodol[4] injections with him and Plaintiff voiced his understanding as to the plan of care, which included Torodol injections for a few days of pain relief. Id., Ex. A at pp. 1-2. Further, Plaintiff’s prescriptions for Neurontin and Ultram were discontinued on April 10, 2014, because of his repeated reports in January, February, March, and April of 2014, that ...

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