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Dorsey v. Wexford Health Sources, Inc.

United States District Court, D. Maryland

August 8, 2016

DAVID McKINLEY DORSEY, SR., Inmate Identification No. 338932, Plaintiff,


          THEODORE D. CHUANG United States District Judge

         Plaintiff David McKinley Dorsey, who is currently confined at the Maryland Correctional Institution ("MCI") in Jessup, Maryland, alleges that he was injured in 2012 and that Defendants Wexford Health Sources, Inc. ("Wexford"), Oladipo Olaleye, R.N.P. and Damon Fayall[1] have failed adequately to treat his hip and back injuries. Presently pending before the Court is Defendants' Motion to Dismiss, or in the alternative, Motion for Summary Judgment, filed on January 19, 2016. The Motion is ready for disposition, and a hearing is unnecessary. See D. Md. Local R. 105.6. For the reasons that follow, Defendants' Motion, construed as a Motion for Summary Judgment, is GRANTED.


         On August 13, 2014, Dorsey filed a lawsuit with this Court asserting that inadequate medical treatment of his back and hip pain constituted deliberate indifference to his serious medical needs, in violation of the Eighth Amendment to the United States Constitution. On March 3, 2016, the Court issued a memorandum opinion and order denying his claims and granting a motion for summary judgment against Dorsey. See Dorsey v. Dep't of Pub. Safety & Corr. Servs. ("Dorsey I''), No. TDC-14-2568, 2016 WL 1239922 (D. Md. Mar. 24, 2016). That opinion is incorporated herein by reference. In that case, the Court considered the medical treatment of Dorsey up to and including February 20, 2015.

         I. Medical Treatment

         On October 5, 2015, Dorsey filed the present lawsuit, alleging that he continues to suffer pain in his hip and back which Defendants have failed to treat adequately. According to Dorsey's 2015 medical records, on March 12, 2015, Dorsey was examined by Olaleye because of his chronic pain. Olaleye continued Dorsey on his medication and submitted a consultation request for Dorsey to be seen by a neurologist. On April 29, 2015, Olaleye again evaluated Dorsey and at that time ordered a cane for him.

         On June 4, 2015, Dorsey was evaluated by Harjit Bajaj, M.D., a neurologist at Bon Secours Hospital. Dr. Bajaj recommended that Dorsey receive an MRI of his head and an electromyography ("EMG"). An EMG is a "diagnostic procedure to assess the health of muscles and the nerve cells that control them." Mayo Clinic Staff, Electromyograpyy (EMG), Mayo Clinic (Oct. 25, 2012), basics/definition/prc-20014183.

         Dorsey returned to Dr. Bajaj on July 2, 2055 for the EMG. As a result of that procedure, Dr. Bajaj did not identify any neuropathy. Dr. Bajaj observed denervation in Dorsey's lower extremity muscles but could not discern its cause. Dr. Bajaj concluded that the results of the MRI of Dorsey's head and thoracic spine were needed before any diagnosis could be made and requested that Dorsey return after those studies were complete.

         On July 7, 2015, the MRIs were performed. The MRI of Dorseyss brain revealed, among other things, no intracranial pathology and no findings suggesting multiple sclerosis. The MRI of the thoracic spine revealed mild spondylosis. On July 24, 2015, Olaleye advised Dorsey during a medical visit of the diagnosis of spondylosis and the negative finding for multiple sclerosis. Olaleye noted that Dorsey was not complying with his prescribed medication regimen.

         Olaleye examined Dorsey again on September 3, 2015 and September 21, 2015 because of Dorsey's continuing complaints of hip and back pain. During the September 3, 2015 visit, Dorsey was provided with a back brace to help alleviate pain. During the September 21, 2015 visit, Olaleye noted that Dorsey did not wear the brace to the medical visit and reminded him to wear it.

         Throughout his treatment, Dorsey has been evaluated by the regional medical director, a neurologist, an orthopedist, and a physical therapist. In the opinion of Dr. Andrew Moultrie, who has reviewed Dorseyss records and whose affidavit was submitted by Defendants, "to a reasonable degree of medical probability" the medical care provided to Dorsey for his hip and back pain "was appropriate and within the applicable standard of care." Moultrie Aff. ¶¶ 6-52, Defs.' Mot. Dismiss or, in the Alternative, Mot. Summ. J. Ex. 2, ECF No. 13-1.

         II. Procedural History

         On October 5, 2015, Dorsey filed his Complaint against Defendants, claiming inadequate medical care and asking Defendants to "take the right step relieving or fixing problem" as well as requesting punitive damages. Compl. at 8, ECF No. 1. On January 19, 2016, Defendanss filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. Pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), on January 19, 2016, Dorsey was notified that Defendants had filed a dispositive motion, the granting of which could result in the dismissal of his action. Dorsey was also informed that he was entitled to file materials in opposition to that motion within 17 days from the date of that letter and that his failure to file a timely responsive brief to illustrate, through accompanying affidavits or other evidence, a genuine dispute of material fact could result in the dismissal of his case or in the entry of summary judgment without further notice of the Court. Although Dorsey sought and was granted an extension of time, until March 24, 2016, to file a memorandum in opposition to the Motion, he has not filed one. Instead, on April 7, 2016, Dorsey filed correspondence with the Court asking that the instant case be dropped if "Wexford Medical Department follow(s] through with, your instructions from page 14 case: 814-cv-02568"" Apr. 7, 2016 Letter, ECF No. 21. In response, the Court instructed Dorsey to advise on ...

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