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Wagner v. Warden

United States District Court, D. Maryland

March 8, 2016

JOHN ALEXANDER WAGNER, # 371-133 Plaintiff,
WARDEN, et al., Defendants.


Ellen Lipton Hollander United States District Judge

John Alexander Wagner, a self-represented inmate at North Branch Correctional Institution (“NBCI”), initiated suit against approximately 50 defendants, pursuant to 42 U.S.C. § 1983, alleging many claims. See ECF 1, as supplemented by ECF 15; ECF 16; ECF 17.[1] The defendants previously filed dispositive motions (see ECF 44; ECF 75), which I addressed in my Memorandum Opinion (ECF 82) and Order (ECF 83) of March 19, 2015. In that Memorandum Opinion, I divided the defendants into two categories: Medical Defendants and State Defendants. See ECF 82 at 2 (setting forth the names of the defendants and their categories). In my ruling, I granted in part and denied in part the Medical Defendants’ motion to dismiss, and granted in part and denied in part the State Defendants’ motion for summary judgment.[2]

In particular, as to Wexford Health Sources, Inc. (“Wexford”); Colin Ottey, M.D.; Kristi Cortez, RN; and Nurse Autumn Durst[3] (collectively, the “Medical Defendants”), I denied the Medical Defendants’ motion, without prejudice to their right to renew the motion. But, I granted the motion to dismiss as to Medical Defendants Tiffany Bennett, Janice Gilmore, and William Beeman. ECF 83. In regard to the excessive force claims against the State Defendants, I granted summary judgment in favor of the State Defendants as to Wagner’s claims arising from incidents on October 31, 2013, and December 31, 2013. ECF 82 at 59-62. But, I denied summary judgment, without prejudice, as to claims arising from incidents on December 13, 2013, and January 1, 2014. Id. As to Wagner’s claim that Sgt. Justin Gordon interfered with Wagner’s medical treatment by directing the falsification of Wagner’s medical records after a cell extraction on December 31, 2013, I denied summary judgment, subject to the right to renew. ECF 83. And, I denied summary judgment, subject to the right to renew, as to Wagner’s claim that Officer Eagleson solicited an inmate to harm Wagner. Id.

Several motions are now pending. The remaining Medical Defendants filed a Motion for Summary Judgment (“Medical Motion, ” ECF 105), supported by a Memorandum of Law. ECF 105-3. The remaining State Defendants filed a Supplemental Motion to Dismiss Plaintiff’s Complaint or, in the Alternative, for Summary Judgment (“State Motion, ” ECF 118), which I shall construe as a motion for summary judgment. Both motions are supported by numerous exhibits.[4]

Wagner filed an opposition to the motions (ECF 132), [5] supported by many exhibits, including two personal declarations (ECF 132-2; ECF 132-3) as well as exhibits that have been filed in paper form, and thus do not appear on the electronic docketing system. See ECF 132-4 (notation). In addition, Wagner filed a cross-motion for partial summary judgment (“Wagner Motion, ” ECF 134). The Wagner Motion indicates that it pertains to the excessive force claims against the State Defendants. Id. The Medical Defendants filed an opposition to the Wagner Motion (ECF 136), to which Wagner replied. See ECF 137, “Reply.” In his Reply, Wagner asserts that he also moved for partial summary judgment as to defendant Kristi Cortez, ECF 137 at 1. As to Cortez, plaintiff complains, inter alia, that she failed to provide him with a decontamination shower on December 31, 2013. In response, Cortez filed a motion for leave to file a surreply (ECF 138), which shall be granted. The surreply appears at ECF 138-1.

No hearing is necessary to resolve these motions. Local Rule 105.6. In resolving the motions, I shall incorporate by reference the facts set forth in detail in my prior Memorandum Opinion (ECF 82), and repeat them here only as necessary to provide context to the pending motions.

For the reasons set forth below, I shall grant the motion of the Medical Defendants, except as to the issue of the decontamination shower on December 31, 2013. I also shall grant the motion of the State Defendants, except as to the issue of the decontamination shower on December 31, 2013. And, I shall deny the Wagner Motion, except as to the issue of the decontamination shower on December 31, 2013, which is premature and shall therefore be held in abeyance pending further briefing.


Wagner has asserted numerous claims against the remaining Medical Defendants. In sum, the claims appear to be as follows: 1) Nurses Cortez and Durst failed to stop at his cell during cell checks, despite his requests for medical assistance. ECF 15 at 9; ECF 17 at 6; ECF 132-2 at 3; 2) the nurses failed to inspect or treat a “knot” on his forehead, ECF 17 at 6; ECF 132-1; 3) Cortez, at the direction of Gordon, did not accurately document Wagner’s injuries on December 31, 2013; ECF 16 at 6, 11; 4) Nurse Cortez denied him a decontamination shower on December 31, 2013; ECF 137 at 2; 5) Wagner received no medical attention after incidents on October 31, 2013, and November 6, 2013, when his vital signs were taken, and he did not receive a more complete medical evaluation until November 8, 2013, when he was sent for x-rays; ECF 15 at 6; ECF 17 at 4; 6) numerous sick call slips were not answered, ECF 15 at 9; ECF 17 at 6-7; 7) he sustained painful injuries to his teeth, finger, shoulder, eye, and toe, without adequate medical care, ECF 1-1 at 7; ECF 13 at 11; ECF 15 at 9; ECF 17 at 5; and ECF 29 at 3, 5; and 8) he is unable to stand properly and cannot bend or lift his legs. ECF 29 at 5.

In addition, Wagner claims the Medical Defendants denied treatment and/or provided inadequate medical care for injuries he sustained during various incidents with correctional officers. ECF 16-4 at 5. Those incidents occurred on October 31, 2013, December 13, 2013, December 31, 2013, and January 1, 2014.[6]

A. The Medical Defendants’ Motion For Summary Judgment

Defendants Cortez, Durst, Ottey, and Wexford have moved for summary judgment and submitted as Exhibit A verified copies of more than 400 pages of Wagner’s medical records.[7]The Medical Defendants contend that the records demonstrate that Wagner has received substantial medical treatment for his complaints of injury and dispel his claims of deliberate indifference to his medical needs. See ECF 105-2 (Statement of Material Facts not in Genuine Dispute); ECF 105-3 at 5. They have also submitted affidavits executed by nurses Cortez and Durst. ECF 105-5; ECF 105-6.

Wagner opposes the Medical Motion, and disputes much of the information contained in his medical records. He has filed, inter alia, his own declarations in opposition to defendants’ summary judgment motion (ECF 132-2; ECF 132-3), as well as a “Statement of Disputed Material Facts.” ECF 132-4.

According to Wagner, the affidavits of Cortez and Durst are “inaccurate and false.” ECF 132-3 at 2, ¶ 11. He asserts, among other things, that on several occasions Dr. Ottey “ignored” his medical concerns (ECF 132-3 at 2, ¶ 6) and he was denied medical treatment by Dr. Ottey and several others. Id. ¶¶ 6, 7, 8. He also avers that his “complete [medical] records” have been disposed of or ignored . . . .” ECF 132-2 at 1, ¶ 4. Further, Wagner maintains that health care providers “equate taking [a] prisoner’s vital signs and weight to having treated their complaints thus documenting it as such.” ECF 132-2 at 6, ¶ 29.

In addition, Wagner asserts: “Defendants have constantly lied and falsely documented me as having received medical attention or refusing medical attention[.] I have never denied or refused my much needed treatment . . . . At no time has my signature been obtained for a ROR [release of responsibility form] which is the proper procedure along with medical staff personally confirming that the prisoner actually refused.” ECF 132-2 at 3, ¶ 13.[8] Wagner also attests that he “never refused bloodwork or any other medical treatment . . . .” ECF 132-3 at 1, ¶ 5. In addition, he claims that Dr. Ottey “ignored and refused” to treat Wagner on his “scheduled day[.]” Id. at 2 ¶ 6.

Moreover, Wagner claims that on December 13, 2013, he was dizzy and had a bad headache. He asserts that Nurse Cortez and other unnamed nurses were informed about and shown Wagner’s injuries, but he received no treatment. ECF 132-2 at 4. Wagner also states that on December 31, 2013, he asked for treatment due to burning from use of pepper spray (ECF 132-2 at 1), which contradicts the statement on his medical record that he presented no other medical concerns. Wagner notes he received no treatment for burning or bleeding on that visit. Id.

In one of Wagner’s declarations (ECF 132-2), in opposition to the Medical Motion, Wagner asserted that, after the use-of-force incident on December 31, 2013, he was denied a decontamination shower. Id. at 1, ¶ 5. He asserts, “Despite Defendants [sic] claim I didn’t have any medical concerns, I specifically asked for treatment that I was burning but Defendant denied me as she clearly conspired with custody and did not document my actual medical needs/concerns.”[9] Wagner further complains that he “did not receive a decontamination shower” in the “strip cell.” Id. ¶ 6. He cites Division of Correction Directive (DCD) 110-23, which states that “medical treatment shall be given to all persons exposed to chemical agents. ECF 134-1 Attachments, Exhibit 9.[10]

Further, Wagner claims that he received no treatment on January 1, 2014, after an alleged assault that day involving mace in his face and repeated physical attacks. ECF 132-2 ¶ 7. He acknowledges that he was placed on suicide watch, but claims he received no medical care, despite the fact that he was bloody and his eyes were burning. Id. ¶ 8.

B. Wagner’s Motion for Partial Summary Judgment

In the Wagner Motion (ECF 134-1), Wagner largely reiterates his allegations of use of excessive force and inadequate medical care, and denial of medical care. He has also filed another Declaration (ECF 134-2) as well as those of other inmates. In the inmate declarations, Wagner is sometimes called “Yahya.” In his Statement of Undisputed Facts (ECF 134-3), Wagner claims he asked for a “quick shower because he was burning and could not breath[e].” Id. at 2-3 ¶ 22. Wagner also states: “Defendant refused Plaintiff a decontamination shower and prevented Cortez from treating him.” Id. at 3, ¶ 23.[11] Further, Wagner claims that “defendant refused” him “a decontamination shower” and the strip cell had no working sink or toilet. Id. ¶ 24. And, he claims the policy of the Department of Public Safety and Correctional Services (“DPSCS”) requires a shower for an inmate exposed to such chemicals. Id. ¶ 25. It bears noting that the DPSCS Use of Force Manual and DCD 110-23 state only that medical treatment must be provided after exposure to chemical agents after a use of force incident. ECF 134-3, Ex. 8 at 18-19, 21; Ex 9 at 8.[12]However, contrary to Wagner’s suggestion, the directives do not specifically prescribe a shower. Id.

In Wagner’s Reply (ECF 137), Wagner clarifies that he is seeking summary judgment in regard to his claims concerning the medical care he should have received after his cell extraction on December 31, 2013. ECF 137 at 1. Specifically, Wagner claims the State Defendants and Defendant Cortez “maliciously refused” to provide him with a decontamination shower to flush his eyes after he was exposed to pepper spray and otherwise denied him medical treatment. Id. at 1-2.[13] He disputes Cortez’s notation on his medical record that he denied medical complaints, and suggests Cortez conspired with correctional officers by so noting. Id. at 1-2, 4. Wagner posits that the failure to provide him with a shower constitutes deliberate indifference sufficient to demonstrate constitutionally inadequate medical care, and that he is entitled to summary judgment in his favor as to this claim. Id. at 1, 2.[14]

C. THE EVIDENCE 1. Wagner’s Medical Records

After the alleged use-of-force incident of October 31, 2013, the first sick call slip in Wagner’s medical record is dated November 2, 2013. ECF 105-2 at 1, ¶ 2; Wexford Ex. A at 0257, 0258. Wagner complained about a “swollen head, internal bleeding, fractured ribs, broken thumb and cuts on hand from being assaulted 10/30/13 [sic].” Id. It is described as “emergency request.” Id. The sick call slip is stamped received on November 4, 2013. Id.[15]

Wagner submitted another sick call slip dated November 3, 2013, complaining about a “broken thumb” and “head swollen from use of force.” Wexford Ex. A at 0258. This sick call slip is stamped as received on November 4, 2013. Id.

On November 4, 2013, Wagner filed a sick call slip complaining of spitting up blood due to an assault by officers, as well as broken ribs, cracked teeth, and a broken thumb. Wexford Ex. A at 0256. Wagner wrote on the sick call request that this was his “4th Slip.” Id.

Two days later, on November 6, 2013, Cortez examined Wagner for complaints that he was injured during a use-of-force occurrence on October 31, 2013. ECF 105-4, Wexford Ex. A at 0016. Wagner reported discomfort in his ribs that was subsiding, cracked teeth, a broken thumb, and vomiting of blood, the latter having ceased the previous morning. Cortez observed that Wagner was alert and oriented, with three “superficial scratches” behind his right ear, a steady gait, and no cracked teeth. Id. Moreover, he alighted from the examination table “without difficulty.” Id. Wagner was prescribed 100 mg. of Motrin to take up to three times daily, as needed. Id.

The same day, November 6, 2013, Dr. Ottey ordered x-rays of Wagner’s right hand and fingers. Wexford Ex. A at 0015. The x-rays showed no evidence of an acute fracture, dislocation, or subluxation. Id. Wagner was diagnosed with sprains and strains to his wrist and hand. Id.

On November 7, 2013, Ava Joubert, M.D., ordered x-rays of Wagner’s ribs and chest. Wexford Ex. A at 0018. The x-rays showed that Wagner’s lungs were clear and there was no evidence of an acute fracture, dislocation, or subluxation. Id.

Nurse Cortez again examined Wagner for his injuries on November 11, 2013. Wexford Ex. A at 0019. She noted that Wagner’s “discomfort” was “improving.” Id. Dr. Ottey again examined Wagner on November 16, 2013, for ongoing complaints of injury, including pain in his right wrist, left shoulder, and ribs. Wexford Ex. A at 0023. Dr. Ottey noted that Wagner’s x-rays of his wrist, ribs, and thumb were “normal.” Id. at 0023. He also noted that Wagner’s wrist was “tender with movement” and his right thumb was “tender to touch.” Id. In addition, he noted moderate pain and tenderness of the shoulders. Id. Dr. Ottey prescribed pain medication and muscle rub. Id. at 0018. Wagner also received an ace bandage. Id. at 0025.

On December 1, 2013, Dawn Hawk, RN, examined Wagner for complaints of vomiting blood. Wexford, Ex. A at 0026. No distress was noted.

Cortez examined Wagner on December 10, 2013, for complaints of dry skin and pain in his right wrist/thumb, left shoulder, and ribs. Wexford Ex. A at 0028. Wagner claimed the date of onset was 10/31/13. Id. He also reported that his vomiting of blood had resolved on December 5, 2013. Id. at 0029. Medications were prescribed. Id.

On December 13, 2013, Wagner refused to attend a sick call visit. Wexford Ex. A at 0194. The next day, December 14, 2013, Wagner refused to be seen for a follow-up visit. Id. at 0031.

Cortez examined Wagner at 8:11 p.m. on December 31, 2013, following a use-of-force incident during which pepper spray was administered. Wagner reported an injury to his lip from a “pepper ball round.” Wexford Ex. A at 0032. The report noted bleeding from a “superficial injury” to Wagner’s lower lip, id. at 0033, but that Wagner’s lungs were clear, there was no wheezing, and there was no eye swelling. Wexford Ex. A at 0032-33.

At 10:41 p.m. on January 1, 2014, Wagner was examined by Lisa Shell, RN, after he was found lying in his cell with his face in a small amount of blood. Wexford Ex. A at 0035. See also Id. at 0040. Wagner was responsive, talking, and complaining that his handcuffs were too tight and that this was a matter for an internal investigation. Id. at 0035. It was noted that Wagner’s eyes were red, he had difficulty keeping his eyes open, and his nasal passages were red and irritated. Although Wagner’s vital signs were within normal limits, id., he “spit up about 90 ml of blood tinged sputum. Id. at 0037. There were no open areas in Wagner’s mouth (id. at 0035) and Shell could not find a source for the blood found in Wagner’s cell. Id. The medical report also indicates Wagner was able to move all of his extremities and that his sensation was intact. Id. at 0037. Repeated observations of Wagner were made throughout the night and into the morning of January 2, 2014, as documented in the medical record. Id. at 0037-39. In addition, lab work was drawn. Id.

Wagner was admitted to the infirmary on January 1, 2014, related to his complaints. Id. at 0039. He was discharged to the NBCI Observation Unit on Jan. 2, 2014. Id. Dr. Ottey ordered Wagner transferred as a suicide precaution. Id. at 0037.

Also on January 1, 2014, and before the transfer for “suicide precautions, ” Karen Myers, RN, reported that Wagner “[a]rrived ambulatory [to the infirmary] with 3 officers at 22:35, ” and said: “‘My belly is a little tender. I have been coughing up blood since October.’” Wexford Ex. A at 0037. She also noted that Wagner complained, inter alia, of left wrist pain. No wounds or swelling were noted, and he was examined. Id. Labs were also drawn. Id.

The medical record for January 2, 2014, contains the following entry by Renato Espina, M.D., made at 9:41 a.m. on that date, Wexford Ex. A at 0039:

36 year old inmate admitted to infirmary for observation of possible “bleeding[.]” Inmate alleged that he actually vomited some blood. This was not witnessed or documented by CO [correctional officer] or nursing staff. They observed some blood tinged sputum but not much blood. Complained of sore and swollen wrists from tight cuffs. No nausea or vomiting this AM. No bleeding site in his oral cavity and lips. There is a small canker sore on the right lower lip. Abdomen is non tender.

The report shows Wagner’s “Chemanel” lab tests were normal. Id. Dr. Espina noted that Wagner was discharged to the NBCI Observation Unit.

Nurse Delores Adams also examined Wagner in the infirmary on January 2, 2014.

Wagner reported wrist pain from wearing handcuffs the previous evening. Wexford Ex. A at 0040. Adams observed that Wagner was alert, denied rectal pain or bleeding, and his gait was steady. There was a slight swelling to the lower lid of his right eye and a small ulceration to the corner of his lower lip. Id. Wagner stated: “I aint going back [to NBCI] till I see someone, them officers over there are trying to kill me and beating me up[.]” Id.

Also on January 2, 2014, Cortez wrote on Wagner’s chart: “Patient received from infirmary with no medical complaints per infirmary RN report. Patient on suicide precautions per MD order.” Wexford Ex. A at 0041. Additionally, Cortez wrote: “Patient aware of sick call process.” Id.

On January 7, 2014, plaintiff refused an appointment related to a “gash in mouth with pus.” Id. at 0042, 0193. A Release of Responsibility form was completed.

Dr. Ottey examined Wagner on January 16, 2014, for wrist pain. Wexford Ex. A at 0044. Wagner reported no numbness, tingling, or stiffness. Id. Dr. Ottey prescribed Naprosyn. Id. at 0043, 0045.

On January 20, 2014, Wagner refused his sick call for his complaints of back discomfort, blurred vision, and blood in his vomit. Id. at 0046, 0192. He again refused a sick call on February 2, 2014, which he had requested for blood in his sputum, vision problems, and back discomfort. Id. at 0047, 0191.

Nurse Dawn Hawk examined Wagner on February 10, 2014, for lower back pain. Id. at 0048. He was examined on February 22, 2014, by Jennifer Bradfield, RN, for complaints of back pain, vomiting of blood, and asthma. Id. at 0051-55. On February 25, 2014, Quinta Lum, PA, examined Wagner in response to his complaints of back pain and asthma. Id. at 0058-59. Lum ordered x-rays of Wagner’s spine. Id. at 0057.

On February 27, 2014, Wagner reported to James Hunt, RN, that he had been experiencing blurry vision since January 3, 2014, as a result of “a scuffle with a CO. . . .” Id. at 0060. Hunt observed that Wagner’s eyes appeared normal, without redness, and with only minor swelling. Id. Hunt observed that Wagner’s eye movement was good. Id. Medications were prescribed. Id. at 0061-62.

Janette Clark, NP, examined Wagner on March 7, 2014, for complaints of eye discomfort, back discomfort, and vomiting. Id. at 0064. Clark referred Wagner to an optometrist, ordered spinal x-rays, and ordered a complete blood count. Id. at 0063-64.

Wagner’s spine was x-rayed on March 7, 2014. Wexford Ex. A at 0063. The x-rays showed no evidence of an acute fracture, dislocation, or subluxation and “No acute disease.” Id. The x-ray further showed the vertebral body heights and disc spaces were preserved. Id.

Travis Barnhart, LPN, saw Wagner on March 14, 2014. Id. at 0067. Then, on March 19, 2014, Kimberly Martin, RN, examined Wagner for complaints of psoriasis, vision problems, and issues with Wagner’s foot. Id. at 0068. Martin ordered Fluocinonide cream for Wagner’s psoriasis, and informed him that a consultation with the optometrist had been ordered. Id.

On March 21, 2014, Katie Winner, PA, reviewed Wagner’s x-rays with him. Id. at 0070. He was also seen by Travis Barnhart, LPN, on April 1, 2014. Id. at 0072.

Wagner refused an appointment with a physician on April 5, 2014. Id. at 0189. Then, on April 9, 2014, plaintiff refused his sick call, which he had requested for treatment of migraines and discomfort in his leg. Id. at 0188.

Janette Clark, NP, examined Wagner on June 10, 2014, for back, thumb, and toe pain. Id. at 0076. She observed that Wagner had no difficulty getting on or off the exam table. Id. She also observed that Wagner’s thumb had full range of motion. Id. The results of his recent x-rays were noted. Id.

On June 18, 2014, Cortez examined Wagner for complaints of pain in his back, right thumb, and left leg pain. Id. at 0078. Cortez reminded Wagner that he had pending lab work for review and encouraged him to take all prescribed medications. Id.

On July 10, 2014, Robert Claycomb, RN, examined Wagner for complaints of spitting up blood. Id. at 0081. Thereafter, on July 18, 2014, Dr. Joubert examined Wagner for Hemoptysis (spitting up blood) (id. at 0085) and ordered chest x-rays. Id. at 0084. The x-rays showed that his lungs were clear, the mediastinal structures and cardiac silhouettes were within normal limits, and no gross osseous abnormalities were noted. Id. Wagner refused to have his blood drawn. Id. at 0087.

Wagner refused medical treatment on July 31, 2014, indicating that he did not want to be seen. Id. at 0088. Wagner refused to attend his sick call appointment on August 15, 2014, even though he had requested the appointment due to complaints of bloody emesis (vomiting). Id. at 0089-0090, 0186.

Nurse Claycomb examined Wagner on August 28, 2014, for numbness and tingling in his left big toe and right thumb. Id. at 0091. He also refilled Wagner’s Baclofen prescription. Id.[16]

On September 3, 2014, Nurse Clark examined Wagner for complaints of pain in the left toe and left thumb. Id. at 0095-0096. X-rays were ordered, id. at 0094, of Wagner’s left foot and right hand (id. at 0094), which showed no evidence of ...

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