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Fuller v. Wexford Health Sources, Inc.

United States District Court, D. Maryland

June 20, 2016

GERALD FULLER Plaintiff
v.
WEXFORD HEALTH SOURCES, INC., et al. Defendants

          MEMORANDUM

          WILLIAM M. NICKERSON SENIOR UNITED STATES DISTRICT JUDGE

         On May 16, 2016, this Court directed Plaintiff Gerald Fuller to respond to Defendants' Motion to Strike and for Sanctions. ECF 27 and 28. Fuller filed a Motion for Extension of Time seeking a 90 day extension to respond to the Motion to Strike and to prepare a Motion for Injunctive Relief. ECF 29. On June 8, 2016, Fuller filed a Response to Show Cause Order. ECF 30. Thus, Fuller's motion for extension of time shall be denied as moot.

         Fuller initially claimed that the handwritten statement on Defendants' copy of his May 10, 2016 affidavit (ECF 26) stating, "I may be released soon. Do I have to take this matter out on the streets? Can we resolve this and I go my way and you go your[s]?" was simply an offer to settle this case. He characterizes counsel's security concerns regarding the statement as bizarre and delusional and suggests that "there is mental illness or substance abuse present." ECF 29. He offers as a basis for his request for a 90 day extension of time the need for additional time to research the motion filed by Defendants and indicates that he "may be starting a jury trial on May 23, 2016" on an unrelated matter. Id. at p. 2. He further claims that Defendants "recently attempted to murder" him by taking control of his blood pressure medication, causing his blood pressure to rise to levels of 225/122. Id.

         In his Response to Show Cause Order, Fuller claims the handwritten note was a note to himself reminding him to make an offer to settle this case because he may be released soon. ECF 30 at p. 3, ¶ 8. He claims that the inclusion of the handwritten note was inadvertent and was caused by the fact that he is forced to prepare legal documents in a cramped, poorly lit prison cell. Id. at p. 4, ¶ 7. Notwithstanding that claim, Fuller finds fault with opposing counsel's neglect to "record the actual place and condition the said note was found" and maintains that had counsel done so, that information would exculpate Fuller from any suspicion of communicating a threat. Id. at p. 4, ¶¶ 3 and 4. Fuller then asserts that "a sustainable argument could be made that the note is a plant by the Defendants to circumvent Plaintiff's rights and meritorious cause of action." Id. at p. 5, ¶ 9. He concludes that the allegation is bizarre and reaching and maintains that Defendants have actively sought to cause him harm. Id. at ¶ 10.

         The handwritten statement sent to counsel for Defendants is threatening. It takes little to no inference to discern that Fuller's offer to "take this matter out on the streets, " coupled with the statement that he may be released soon, is a threat. His dismissal of this characterization, as well as his attempt to insult counsel's presence of mind, simply underscores his lack of appreciation for the seriousness of the matter at issue. In addition, Fuller's attempt to both admit the note was written by him for some other purpose and also suggest that the note is some sort of subterfuge manufactured by counsel to obfuscate the issues sub judice is specious.

         Given Fuller's lack of remorse or anything approaching regret for the inclusion of the threatening handwritten note, Defendants' Motion to Strike shall be granted in part and Fuller's affidavit on which the threat was written will be stricken from the record and will not be considered as a part of Fuller's Opposition Response. Fuller is admonished by the Court for the use of threatening language and he is forewarned that any future incidents of this nature in any other case will result in the dismissal of any complaints he has pending in this Court.

         Fuller's request for a 90 day extension of time to file a Motion for Injunctive Relief will be denied. Fuller has adequately responded to Defendants' Motion to Dismiss or for Summary Judgment and the documents already filed, with the exception of ECF 26, will be considered by the Court in the following dispositive review of the claims asserted.

         Defendants filed a Motion to Dismiss or for Summary Judgment on December 23, 2015. ECF 9. Plaintiff sought and was granted two Motions for Extension of Time to file an Opposition Response. ECF 12 and 20. Following the first Motion for Extension of Time, Fuller filed Motions for Default Judgment (ECF 14 and 17), to Grant Relief (ECF 16), and for Specific Orders or Other Appropriate Relief (ECF 24). The Motions for Default Judgment and to Grant Relief were denied (ECF 21) and the Motion for Specific Orders remains pending. Fuller filed an Opposition Response on February 5, 2016 (ECF 18), which he supplemented (ECF 22, 23, 25 and 26). As stated, the affidavit docketed as ECF 26 shall not be considered. In light of the extensive filings made by Fuller, the undersigned is satisfied that he has had a full and adequate opportunity to respond to Defendants' motion. The Court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, the Defendants' motion, construed as a Motion for Summary Judgment, shall be granted and judgment entered in their favor.

         Plaintiff's Claims

         Fuller alleges he suffers chronic pain and claims that on three occasions over a period of 9 to 12 months prior to the filing of the instant complaint, his medications were either not properly ordered or stolen leaving him in debilitating pain. ECF 1 at p. 4.

         Since 2011, after being emergently sent to Peninsula Regional Hospital, where he was admitted to intensive care for eight days, Fuller states he has had unstable and chronically low potassium levels, causing frequent urination during the night (12 to 15 times) and resulting in fatigue and dehydration. Id. He claims that while he was at Patuxent Institution from June 2013 to March 2014, the cause of the low potassium was being investigated and he was seeing a nephrologist, but when he was returned to North Branch Correctional Institution (NBCI) his appointments were terminated and his potassium supplements were increased. Id. He asserts he is still "getting up anywhere from 5 to 12 times a night urinating." Id. Fuller adds that Wexford Health Sources, Inc. ("Wexford") "approved [his] transfer back to the care of NBCI's provider." ECF 1-1 at p. 4.

         Fuller claims that the combination of his frequent need to urinate and the arthritis he suffers in his fingers, hands and wrist, makes him unable to control the direction of his urine flow. This, he claims, creates an issue with his cellmates who become angered over being awakened by frequent flushing of the toilet and the "stench arising from urin[e] all over the place." ECF 1 at p. 4. Despite Fuller's reports that disputes with cellmates regarding this issue have come to "near blows, " he states that medical staff have refused to renew an order for his assignment to a single cell. Id. He states that he is 62 years old and the only thing that has prevented his injury from assault thus far is his size and weight. Id. He further explains it takes an "hour or two" after awakening for him to be able to use his hands. Id.

         Fuller alleges that "[r]ecently my bones all over started hurting very bad." ECF 1 at p. 4. He claims that he was unable to exercise due to the pain he was experiencing; his teeth "started breaking up;" and his medication was spontaneously terminated. Id. He states that "[w]hile cleaning the dust from my fan, I discovered the dust was turning the water red." Id. He alleges that "staff" have not tried to determine why the dust in his cell was turning the water red, nor has medical staff tried to determine if it had anything to do with his increased pain. Id. Fuller further asserts that when he filed a sick call slip, his blood pressure was high and he had a "high temperature." Id.

         Fuller states that in addition to body-wide arthritis and frequent urination, he also suffers from hepatitis C, high blood pressure, hypokalemia, hyperlipidemia, and macular degeneration. He also states he has a plantar's wart on his foot and "Dr. Wahboob" gave Fuller antibiotic cream and told him to hold his foot in the air to treat the plantar's wart. Id. He states he takes 12 different medications on a daily basis. Fuller describes himself as a writer and a known jailhouse lawyer, but claims he has experienced so much pain and fatigue that he cannot concentrate. Id. He further explains that when he walks, he is walking on painful knees and a painful plantar's wart as well as arthritic ankles and shins. Id. He claims that when he submits sick call slips, he is seen by a nurse who cannot do anything or he is seen by Dr. Ashraf, who does not listen to Fuller and tells Fuller he cannot do anything unless Bill Beaman, the Nursing Supervisor, approves it. Id.

         Fuller claims that in the summer of 2008, he was provided with "knee injections" and cane to assist in walking. ECF 1-1 at pp. 4 - 5. He was also given "rotator cup surgery on his shoulder." Id. at p. 5. He states that as his nighttime urination issue worsened, the arthritis worsened and spread to his hands and arms. Id. Fuller further claims his blood pressure increased with the increase in his arthritic pain and he was put on a calcium blocker, which appeared to further aggravate the condition of his hands, wrist, arms, and neck. Id. He states he is now in continuous pain, can no longer close his hands, and cannot direct his stream of urine adequately. Id. He maintains that the arthritic condition renders him unable to defend himself against cellmates who become irate about the urine being all over the cell. Id. Fuller states that the animosity generated may result in either he or his cellmate being injured and if the latter occurs, it will mean his further needless incarceration.

         Defendants' Response

         Defendants Wexford Health Sources, Inc., Dr. Colin Ottey, Dr. Mahboob Ashraf, Jeanette Clark, N.P., and William Beeman, Nursing Supervisor, allege that Fuller has received adequate medical care for all of his complaints and that his urinary frequency issue is not a basis for a medically assigned single cell. ECF 9. Additionally, Defendants note that any claims related to medical provider services predating July 1, 2012, were not the responsibility of Wexford Health Sources, Inc., as it was not the contracted healthcare provider for the Division of Correction prior to that date. Id. With regard to Fuller's specific medical complaints Defendants provide the following information.

         Fuller's medical history is noted to include degenerative arthritis, degenerative joint disease, uncontrolled hypertension (high blood pressure), hyperlipidemia (abnormally high concentration of fats in the blood), and hyperkalemia (low potassium). ECF 9 at Memorandum, p. 3, see also ECF 9 at Ex. 1 (Affidavit of Robustiano Barrera, M.D.). Defendants note that Fuller has a history of poor compliance with prescribed medications and has refused to come in for medical visits on numerous occasions. Id., see also Ex. 2 at pp. 2 (July 3, 2012 no show due to court trip), 146 (July 14, 2012 refused sick call), 147 (September 3, 2012 refused x-ray of right knee), 149 (October 9, 2012 refused sick call), 150 (October 23, 2012 refused sick call), 151 (November 5, 2012 refused medication), 157 (June 10, 2013 refusal of Hydralazine), 159 (October 28, 2014 refused sick call), 160 (October 28, 2014 left sick call to play basketball), 161 (March 19, 2015 refused blood draw), 165 (April 24, 2015 refused mechanical soft diet), 166 - 67 (May 25, 2015 sick call refused "patient went to yard"), and 168 - 69 (June 15, 2015 refused sick call). Fuller is seen regularly in chronic care clinics for his various medical conditions and is seen approximately every six days for clinic visits, as well as in response to sick call slips he submits. ECF 9 at Ex. 1. Defendants assert that between July 3, 2012 and September 12, 2015, Fuller was seen 181 times and his full medical record is greater than 1600 pages in length. Id.

         In one of the chronic care clinics, Fuller is treated for his chronic degenerative arthritis and degenerative joint disease. Defendants assert that Fuller's arthritis does not impact his ability to complete activities of daily life independently and note he is able to climb and descend stairs, complete errands around the prison, complete cooking activities, dress himself, and is able to squat, kneel and stand from a seated position. Fuller is prescribed Tramadol, [1] aspirin, Tylenol, Baclofen, [2] steroid injections, Indomethacin, [3] Methylprednisolone[4], and prednisone[5] for treatment of pain related to arthritic conditions. In addition, he has been provided with medical assignments to a bottom bunk, bottom tier housing, and has been provided with a cane and a medical order for front handcuffing. ECF 9 at Ex. 1.

         Fuller was seen by an orthopedic specialist, Dr. Roy J. Carls, on October 1, 2015. See id. at Ex. 2, pp.123 - 24, 128 - 29, and 145. Dr. Carls noted that Fuller did not appear to be in acute distress and was in good physical condition. His knees demonstrated full extension and flexion back to 130 degrees, but crepitus and swelling was observed in both knees with the swelling being greater in the right knee. Dr. Carls recommended treating Fuller with Synvisc[6] injections, or other similar treatment, but noted the best long-term solution for Fuller's right knee was a total knee replacement (arthroplasty). Id. at p.145. At the time Defendants filed their motion, the consultation request for the injections was still pending. ECF 9 at Ex. 1. Fuller has received injections to his knees in the past. Id. at Ex. 2, pp. 14 (August 8, 2012) and 94 (March 14, 2015).

         Fuller is also seen in a chronic care clinic for treatment of hypokalemia. He is provided with potassium supplements to treat the condition, but has been non-compliant with treatment on several occasions. His potassium levels are checked and have been within normal limits with the exception of one occasion which was attributed to Fuller's failure to take the potassium supplements provided. With respect to Fuller's treatment by a nephrologist, Defendants state he was seen on three occasions: November 26, 2013; January 20, 2014; and March 27, 2014.

         On November 26, 2013, tests were ordered for plasma renin[7] levels, twenty-four hour potassium urine, and for aldosterone[8] levels. In addition, an MRI of the adrenal gland was ordered and Fuller was prescribed potassium supplements. ECF 9 at Ex. 2, p. 142. The tests for aldosterone levels and twenty-four hour urine were performed on December 3, 2013, and discussed with Fuller on December 18, 2013. Id. at pp. 45, 47 - 49. The plasma renin test was not performed, but sent back to the laboratory for testing. At this time, Fuller's ...


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