United States District Court, D. Maryland
WILLIAM M. NICKERSON SENIOR UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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,
aspirin, Tylenol, Baclofen,  steroid injections, Indomethacin,
Methylprednisolone, and prednisone 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.
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 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
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.
November 26, 2013, tests were ordered for plasma
renin levels, twenty-four hour potassium urine,
and for aldosterone 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 ...