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Rote v. Graham

United States District Court, D. Maryland

July 29, 2016

MAJOR HOWARD ROTE, JR., RET USMC, Plaintiff,
v.
WARDEN RICHARD J. GRAHAM, JR., SECURITY CHIEF MICHAEL P. THOMAS, DANIEL NORTHCRAFT, DR. COLIN OTTEY, JANICE GILMORE, DR. ALI YAHYA, AVA JAUBERT-CURTIS, MONICA STALLWORTH-KOLIMAS, MD., ISAIASI TESSEMA, HERBERT MICKEL, RENATO EXPINA, MD, DR. RICHARD D. ASCENZO and WESTERN CORRECTIONAL INSTITUTION MEDICAL DEPARTMENT, Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG United States District Judge

         Plaintiff Howard Rote, Jr., a self-represented prisoner incarcerated at Western Correctional Institution (“WCI”) in Cumberland, Maryland, filed suit under 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pending before the Court are the Motion to Dismiss filed by Warden Richard J. Graham and the Motion to Dismiss or, Alternatively, Motion for Summary Judgment filed by Defendants Colin Ottey, M.D., Janice Gilmore, Ali Yahya, M.D., Ava Jaubert-Curtis, M.D., Monica Stallworth-Kolimas, M.D., Isaias Tessema (incorrectly named in the Complaint as “Isaiasi Tessema”), Renato Espina, M.D. (incorrectly named in the Complaint as “Renato Expina”), Dr. Richard D. Ascenzo, and Wexford Health Sources, Inc.[1](“Wexford”) (collectively, “the Medical Defendants”). No hearing is necessary to resolve the issues. See D. Md. Local R. 105.6. For the reasons set forth below, the Motions are GRANTED.

         BACKGROUND

         The following facts are presented in the light most favorable to Rote, the nonmoving party:

         I. Allegations Against Correctional Officers

         Rote’s Complaint and subsequent filings raise a variety of allegations against correctional officers at WCI. First, Rote alleges that on December 23, 2009, Correctional Officer Brickman and Sergeant Toolhacker shoved Rote out of his wheelchair into the snow. One or both of the officers then kicked him causing two hernias in Rote’s stomach. Rote received medical treatment the day following the alleged attack.

         Rote, who is hearing impaired, claims that Mark Yates, a Case Manager for the Maryland Department of Corrections, denied Rote access to a teletypewriter (“TTY”), a machine that helps hearing impaired individuals to communicate over the telephone. Yates justified the denial by falsely claiming to have heard Rote talking on the phone without the use of a TTY. Rote does not indicate when he was denied use of a TTY, whether that denial is sporadic or continuous, or whether it impedes his communication over the phone.

         Rote also alleges that correctional officers, including Sergeant Daddyman, have invaded his privacy by standing in the doorway of his cell while he was speaking with prison medical staff. Rote does not explain when these incidents occurred or whether they interfered with his treatment.

         Finally, Rote claims that a correctional officer failed to come to his aid when he complained of head pain. He does not disclose the name of the officer, the date of the incident, or whether he ever received medical treatment.[2]

         II. Rote’s Medical Care

         Rote has been diagnosed with bipolar disorder, chronic pain, hypertension, epilepsy, and ocular hypertension. Rote has previously had a malignant melanoma and also claims to suffer from basal cell carcinoma, colon cancer, Crohn’s disease, shrapnel embedded throughout his body, lumbar disc herniation, glaucoma, grand mal seizures, and chronic headaches due to a traumatic brain injury. Medical staff at WCI have provided him with disposable undergarments because he is incontinent of bowel and bladder and with prescription medications for some of his conditions. Although he is generally dissatisfied with the medical treatment he receives at WCI, Rote’s primary allegations in this case are that he is not receiving adequate cancer treatment and that his hearing aids have been taken from him.

         A. Cancer Treatment

         Rote claims that he has three types of cancer: melanoma, basal cell carcinoma, and colon cancer. Aside from alleging that he is afflicted with colon cancer, Rote offers no details on his treatment or efforts to obtain treatment for this illness. Records submitted by the Medical Defendants indicate that, on January 9, 2015, a nurse offered to schedule Rote for a colonoscopy. He refused. The nurse reported that Rote’s medical file did not corroborate Rote’s claim that he had been diagnosed with and treated for colon cancer.

         Regarding the melanoma and carcinoma, Rote acknowledges that he has attended consultations with dermatologists during his incarceration at WCI and that moles on his skin have been biopsied and excised. He alleges, however, that prison medical staff have not provided appropriate follow-up treatment. Records submitted by the Medical Defendants confirm that, between 2012 and 2015, Rote received multiple consultations with prison medical staff and dermatologists about moles on his skin. Biopsies were performed on at least three occasions, and each biopsy showed that the tested moles were not cancerous. The most recent biopsy, on March 9, 2015, was performed in conjunction with an excision to remove a lesion from his skin that ultimately proved non-cancerous.

         Rote’s records show that he has sometimes disagreed with the course of treatment for his moles. Rote refused consultations with dermatologists on two occasions, October 2, 2014 and November 14, 2014. He believed that he should see an oncologist instead. On November 18, 2014, Defendant Ottey decided not to refer Rote to an oncologist until a biopsy was completed. Rote withheld his consent for that biopsy on November 22, 2014, but he changed his mind and the procedure was rescheduled and performed on January 31, 2015. The dermatologist who performed the biopsy recommended that the biopsied skin lesion be excised. Rote again initially refused the procedure, this time because it was to be performed in Baltimore, where his ex-wife lives. The excision was rescheduled and performed. The excised lesion was not malignant, so Rote was not referred to an oncologist.

         B. ...


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