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Marshall v. Joubert

United States District Court, D. Maryland

July 31, 2015

GREGORY MARSHALL, Plaintiff,
v.
DR. AVA JOUBERT, et al., Defendants.

MEMORANDUM

GEORGE L. RUSSELL, III, District Judge.

THIS MATTER is before the Court on Plaintiff Gregory Marshall's Motion for Reconsideration of the January 21, 2015 Memorandum and Order denying Marshall's request for emergency preliminary injunctive relief (ECF No. 31) and Motion to Amend Complaint (ECF No. 37), and Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF Nos. 23, 38). The Motions are ripe for disposition. No hearing is necessary. See Local Rule 105.6 (D.Md. 2014). For the reasons stated below, the Motion for Reconsideration and Motion to Amend Complaint will be denied and the Motion to Dismiss, treated as a Motion for Summary Judgment, will be granted.

I. BACKGROUND

As previously discussed in the Memorandum of January 21, 2015, although barred from civil filings under the "three strikes" provisions of the Prison Litigation Reform Act, 28 U.S.C. ยง 1915(g) (2012), this Court permitted Marshall's Complaints against corrections personnel and contractual medical personnel to proceed. (ECF No. 29). Marshall is seeking injunctive relief mandating his transfer from NBCI to a Maryland Division of Correction facility closer to the University of Maryland Medical Center ("UMMC") so that he can resume radiation treatment for prostate cancer. Because the allegations in the Complaint demonstrated a possibility that Marshall would suffer imminent harm if preliminary injunctive relief were not granted, the cases proceeded; claims not directly related to the alleged lack of medical treatment were dismissed. The cases were then consolidated. (ECF No. 19).[1]

Injunctive relief was denied upon a finding that Marshall is not likely to succeed on the merits, because he did not show that he suffered deliberate indifference to a serious medical need in violation of the Eighth Amendment. (ECF No. 29). In denying injunctive relief, the Court found that to treat his prostate cancer, Marshall was regularly monitored by oncologists and radiologists at UMMC and, on June 12, 2013, began receiving radiation and hormone therapy. (Id.). Marshall was repeatedly non-compliant with his radiation therapy treatment plan by refusing to attend radiation therapy sessions, stating he was unable to walk. He claimed his non-compliance was the result of his treating physician's alleged failure to address his complaints of post-radiation therapy pain. (Id.). Marshall was prescribed several pain medications which, in Dr. Ottey's medical opinion, should have provided adequate management of Marshall's pain and related complaints. (Id.). Marshall was advised of the risks associated with refusing radiation therapy, but continued to refuse radiation treatment on sixteen occasions between July 23, 2013, and September 19, 2013. (Id.). Though advised that missing additional sessions would result in cancellation of the radiation therapy, Marshall missed his next session. (Id.). Radiation therapy was terminated on September 23, 2013. (Id.).

Thereafter, Marshall was provided psychiatric examination to evaluate whether he was able to make sound and responsible decisions concerning his health and general welfare. In December 2013, the evaluation was completed and it was determined that Marshall was competent to decide to refuse radiation therapy. (Id.).

In denying injunctive relief, the Court further found that despite Marshall's continued assertions that his prostate cancer is spreading, there has never been any diagnostic evidence demonstrating that his prostate cancer has metastasized or that his disease is recurrent. Marshall's various scans were negative for metastases and acute disease, including mass or lesion. (Id.). Additionally, Plaintiff's prostate specific antigen ("PSA") test on July 11, 2014, indicated no active prostate cancer. On September 19, 2014, Marshall expressed to Ottey that he would be compliant going forward with any new proposed treatment plan and was, therefore, approved to be evaluated by both urology and oncology specialist via telemedicine conference. (Id.).

II. DISCUSSION

A. Motion for Reconsideration

Marshall seeks reconsideration of the denial of his request for emergency injunctive relief. He seeks a hearing, appointment of a medical expert to provide a second opinion, and additional testing "to determine [his] cancer status at this time." (ECF No. 31).

The Court's denial of injunctive relief was premised in part on a determination that Marshall's misconduct led to the termination of radiation therapy and diagnostic evidence failed to demonstrate that his prostate cancer has metastasized or that his disease is recurrent. (ECF No. 29). To the extent that Marshall has appealed this ruling (ECF No. 34), his request for reconsideration is governed by Federal Rule of Civil Procedure 59(e) and "need not be granted unless the district court finds that there has been an intervening change of controlling law, that new evidence has become available, or that there is a need to correct a clear error or prevent manifest injustice." Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 411 (4th Cir. 2010). "Mere disagreement does not support a Rule 59(e) motion." Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir. 1993).

At best, Marshall relies on a National Cancer Institute ("NCI") information sheet stating that a PSA test alone cannot determine conclusively whether there are any cancer cells in the body, but is used to monitor for potential recurrence of the prostate cancer. (ECF No. 31-1). The information sheet indicates that a "Gleason score for prostate cancer is a way of determining the grade of the cancer. Grade refers to how likely the cancer is to be aggressive." (Id.). Marshall, however, fails to consider other information provided by the NCI indicating that a Gleason score is one of several methods used to evaluate the health of an individual who has had prostate cancer. His physicians, including an oncologist, do not find a Gleason score necessary at this time. Based on the rationale developed herein, the Court finds that Marshall has provided no basis for reconsideration of the denial of emergency injunctive relief, and no basis to order a hearing or appoint an outside physician to provide a second opinion.

B. Motion and Notice to Amend Complaint

On February 12, 2015, Marshall filed a Complaint concerning his prostate cancer against Bon Secours Hospital physicians Dr. Ravi K. Krishnan and Dr. Laurence H. Scipio, and prison physicians Dr. Mahboob Ashraf and Defendant Ottey. See Marshall v. Krishnan, No. GLR-15-422 (D.Md. Feb. 20, 2015). Marshall sought injunctive relief mandating he be given a digital rectal examination and a biopsy to confirm whether his prostate cancer had been eradicated. On February 20, 2015, the Court dismissed the ...


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