United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
ROGER W. TITUS, District Judge.
On April 4, 2014, self-represented Plaintiff Adrian Alvarez filed this Complaint against Defendants Warden Timothy Stewart, Health Services Administrator Richard Shook, and Clinical Director Dr. Mohammad Moubarek (collectively "Defendants"), alleging inadequate medical care at the Federal Correctional Institution in Cumberland, Maryland ("FCI") where he is incarcerated. ECF No. 1; ECF No. 4-2. On August 21, 2014, Defendants filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. ECF No. 9. Alvarez responded in opposition on September 9, 2014, ECF No. 11, and Defendants replied in support on September 26, 2014, ECF No. 12. The Court has reviewed the motions, related memoranda, and applicable law. No hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2014). For reasons to follow, Defendants' Motion for Summary Judgment will be GRANTED.
Before his incarceration, Alvarez was injured in an accident in Mexico in 2009. ECF No. 1, at 3. His injuries rendered him paralyzed with permanent damage to his lower extremities, and as a result he had a posterior spinal fusion that contained hardware. Id. He claims his medical providers in Mexico told him there was a chance he would walk again if provided proper physical therapy. Id. Alvarez arrived at FCI on April 15, 2011. He claims that hardware repair surgery performed in August 2012 was necessitated by a series of falls he sustained in the spring and early summer of 2012. ECF No. 1, at Ex. A, p. 3. Alvarez posits that if he had been provided the physical therapy he had requested to help him walk again, he would not have fallen. Id. As relief he asks this Court to "resolve this matter and give [him] proper medication." ECF No. 4, at 3.
On April 4, 2014, Alvarez filed this action pursuant to 42 U.S.C. § 1983. ECF No. 1, at 1. However, a federal defendant is the proper subject of a Bivens claim, not a § 1983 claim. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Recognizing that Alvarez is proceeding pro se, the Court shall construe his claims as filed pursuant to the ruling in Bivens. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also Cash v. United States, 2012 WL 6201123, at *9 (D. Md. Dec. 11, 2012) (noting that the Court has the authority to "recharacterize the claims as under Bivens "); Haines v. Kerner, 404 U.S. 519, 520 (1972) (maintaining liberal construction accorded to pro se complainant).
I. Defendants' Response
In support of the Motion for Summary Judgment, Defendants have filed copies of Alvarez's medical records and Defendants' declarations. Defendants assert that Alvarez did not suffer injuries as a result of any falls in the spring and summer of 2012, and that Alvarez's back surgery was a consequence of an infection he contracted in late July of 2012 from a tattoo. ECF No. 9-2, ¶ 9. Further, Defendants contend that Alvarez received timely, appropriate, and thorough medical treatment at FCI, and that he cannot establish Defendants were deliberately indifferent to his medical needs.
Upon his arrival at FCI in 2011, Alvarez requested physical therapy sessions to help him walk again. Dr. Moubarek determined Alvarez was not a candidate for physical therapy due to the age of the injury, and because Alvarez never evidenced any active movement in his legs for therapy to strengthen. ECF No. 9; ECF No. 15-2, ¶ 6; ECF No. 9-15, ¶ 4; ECF No. 12-1, ¶ 2. Dr. Moubarek instead gave Alvarez exercises to perform independently in order to strengthen his upper body. Id.
Between January 2012 to July 2012, Alvarez complained twice about lower back pain, which he attributed to a self-reported fall that occurred in April 2012. Alvarez first reported back pain to Health Services staff on May 22, 2012, when he complained of a grinding sensation in his back since falling the previous month while transferring to his wheelchair in the shower. ECF No. 9-5. Based on this grievance, medical staff evaluated Alvarez and administered an x-ray on May 23, 2012. The x-ray results revealed no orthopedic hardware failure or new fracture in his lower back. ECF No. 9-6.
On June 4, 2012, Alvarez was seen in Health Services for a follow-up visit, and for the second time reported lower back pain. ECF No. 9-7. FCI medical staff ordered a CT scan. The CT examination was performed on June 12, 2012, and revealed no new injuries or fractures to his spine. ECF No. 9-8.
On July 21, 2012, Alvarez was seen in Health Services for complaints of a lump on his lower back. ECF No. 9-10. Physical examination revealed a large area of swelling at the lumbar area of his back. Id. Alvarez did not report any recent injury or trauma to his lower back. Id. During examination, it was observed that Alvarez had a freshly darkened tattoo on his right lower extremity surrounded by reddened skin. Id. X-rays and labs tests were taken, and the laboratory results revealed abnormally elevated white blood cells, suggesting an infection. ECF No. 9-11. The x-ray results were abnormal, indicating a potential hardware failure. Id. The abnormal x-ray finding was new when compared to a previous x-ray taken on May 23, 2012. ECF No. 9-12. The medical chart indicates that the treating physician discussed Alvarez's condition with Dr. Moubarek and Shook, and that arrangements were made to transfer Alvarez to the Emergency Department at the University of West Virginia for continued management. ECF No. 9-11.
Alvarez was admitted to West Virginia University Hospital on July 25, 2012. Hospital records dated July 27, 2012, show he was admitted with likely infection and hardware failure. ECF No. 9-13, at 1. Alvarez told hospital medical staff he had no pain, but could only feel the top half of his surgical wound as well as the mass. Id. Alvarez reported that his CT and x-rays in June 2012 had shown "no hardware issues" and that everything "looked good." Id. The hospital report noted that Alvarez had received a "homemade tattoo" about one month earlier. Id. Surgery was performed on Alvarez because "existing hardware had to be removed, along with surgical debridement and installation of new hardware to resolve the infection." ECF No. 9-2, ¶ 10; see also ECF No. 9-14. In his declaration, Dr. Moubarek attests the "tattoo was most likely the source of the infection, which ultimately caused the hardware failure." ECF No. 9-2, ¶ 10. There were no complications from the hardware surgery. Id. ¶ 11.
On August, 8, 2012, Alvarez returned to FCI where he received intravenous antibiotics and follow-up care. ECF No. 9-14. Alvarez indicated there was a dull pain in his back along the incision site. Id. at 4. ECF No. 9-2, ¶ 11. On August 22, 2012, Alvarez was transferred to the Federal Medical Center at Butner, North Carolina ("Butner"), for long-term intravenous antibiotic therapy. Plaintiff returned to FCI when he completed his course of antibiotics on February 1, 2013. ECF No. 1-1, at 3.
Subsequently, Alvarez filed a claim under the Federal Tort Claims Act, 28 U.S.C. § 2671, for damages resulting from the infection and failure of hardware, claiming his injuries were the result of his fall from a wheelchair and that he received inadequate treatment. ECF No. 1-2. The claim was denied on October 18, 2013, after a determination that Alvarez had received appropriate treatment. Id. It was further determined that the failure of the hardware was not due to a fall as claimed, but due to a "methicillin-resistant staphylococcus aureus" infection contracted from the tattoo. Id.
In his declaration, Richard Shook attests that as Health Services Administrator at FCI he does not "examine, diagnose, or treat inmates' medical conditions." ECF No. 9-15, ¶ 3. Shook's role is limited to "supervising the clinicians" who provide medical care to inmates. Id. Shook attests that "[w]hile [he] facilitated some of Plaintiff's medical visits and procedures, ...