United States District Court, D. Maryland
MICHAEL R. ROMERO Plaintiff
DR. JASON CLEM, NANCY BEALER, DR. MAHBOOB ASHRAF, JANE DOE #1, CORIZON MEDICAL CO. RN DIANA BAKER, WEXFORD MEDICAL CO., LT. MURPHY and WARDEN KATHLEEN GREEN Defendants
DEBORAH K. CHASANOW United States District Judge.
Mahboob Ashraf, Nancy Bealer and Jason Clem filed a Motion to
Dismiss or for Summary Judgment (ECF No. 17) which was later
incorporated by reference into Defendant Diana Baker’s
Motion to Dismiss or for Summary Judgment (ECF No. 29).
Plaintiff opposes both motions (ECF Nos. 27 and 31).
Defendants additionally move to seal medical records filed as
an exhibit (ECF No. 18). The Motion to Seal shall be granted
in part and the Clerk will be directed to restrict access to
the parties in this case. Also pending is Plaintiff’s
Motion for Service of Complaint (ECF No. 26) seeking service
of the amended complaint on Defendants Lt. Murphy and
Kathleen Green. The motion shall be granted in the separate
Order that accompanies this Memorandum Opinion. No hearing is
currently required (see Local Rule 105.6 (D. Md.
2016)). For the reasons stated below, Defendants’
Motions to Dismiss or for Summary Judgment, construed as
Motions for Summary Judgment, shall be denied.
original complaint was filed in the Circuit Court for
Somerset County, Maryland and Defendant Nancy Bealer removed
the case to this court. Plaintiff Michael Romero
(“Romero”) is a prisoner who is currently
confined at Eastern Correctional Institution (ECI), a
Maryland Division of Correction facility. In the original
complaint, Romero stated that on April 16, 2014, he was
transferred from Maryland Correctional Institution Jessup
(“MCIJ”) to ECI and upon arriving advised the
medical staff that a settlement agreement requires his
assignment to a bottom bunk. ECF No. 2 at p. 1, citing
Romero v. Barnett et al., Civil No. DKC-09-2371 (D.
Md.) see also ECF No. 2-1 (Settlement Agreement).
Romero characterized the settlement agreement as a
“Federal Court Order” and further alleges that he
advised that he has had two right knee operations recently.
ECF No. 2 at p. 1.
was advised by security staff that medical staff is
responsible for making medical housing assignments. Despite
being informed about his need for a bottom bunk assignment,
Romero claims the intake nurse (“RN Ellen”)
refused to look at the order and refused to read any
documents Romero attempted to present to her for review.
See ECF No. 2-2 at p. 1 (permanent medical
assignment to bottom bunk due to right knee damage dated
January 13, 2012). Rather, Ellen advised that Romero would
have to be seen by a provider to receive an assignment for a
bottom bunk because she did not have the authority to do so.
ECF No. 2 at p. 2.
Romero arrived to the Housing Unit, he was assigned to a top
bunk. Romero informed security staff that he could not be
assigned to a top bunk due to medical reasons. He states that
he was then threatened that if he did not use the top bunk he
would be issued an infraction and put into disciplinary
segregation for refusing housing. ECF No. 2 at p. 2.
wrote letters to Defendants Jason Clem and Nancy Bealer
expressing his urgent need to see the provider so that he
could be assigned to a bottom bunk and submitted sick call
slips seeking an appointment with a provider. Romero claims
that Defendants took no corrective action upon receipt of his
letters and sick call slips. ECF No. 2 at p. 2.
explains that his cell had a plastic chair in it to assist in
reaching the top bunk and that the floor of the cell is
cement. He states that on May 12, 2014 he was attempting to
lift himself to the top bunk when the bed moved and his left
shoulder buckled. In order to prevent his shoulder from
dislocating, he had to let his body drop. When he did so,
Romero landed on the plastic chair which slid out from
underneath him and caused him to twist his right knee,
tearing the repaired ligament in his knee. Romero states that
he had just received a medical pass to see a provider, so he
did not call security for emergency attention because he knew
they would be there soon to escort him to be seen for the
medical pass. ECF No. 2 at p. 2.
states that he limped into the medical unit and was seen by
Defendant Dr. Ashraf. He claims that Ashraf ordered a cane to
assist him with walking, but refused to order a bottom bunk
assignment because it was not necessary. Romero claims that
Ashraf told him to tell the chronic care nurse to issue him a
cane and that Ashraf would sign the order. Romero followed
the directive, but claims that when he told the nurse, who he
now identifies as Diana Baker (see ECF No. 16 at p.
5), she jumped up and began yelling, “you’re not
getting a cane” and “you’re not giving that
man a cane.” Romero claims that Baker walked into the
office where Ashraf was located and began yelling that Ashraf
should not be giving Romero a cane. Romero states that this
was when Ashraf rescinded the order to issue a cane. ECF No.
2 at p. 2.
claims that Baker refused to provide her name and that
correctional officers ordered him to leave the area. Romero
protested and explained that he had not yet completed his
chronic care visit, but the officers simply stated,
“you’re done.” Romero states that he was
then forced out of medical with a torn ligament on which he
could barely walk, without medical care or accommodation of a
cane or bottom bunk assignment. In an attempt to remedy the
situation, Romero wrote an emergency grievance, but claims it
was not processed as an emergency. ECF No. 2 at pp. 2 - 3.
week later, on May 19, 2014, Romero was summoned to sick call
by RN Richbark regarding his grievance. Romero states that
she advised that if he would “sign off” on the
grievance he would receive a cane and treatment for his
injured knee. Romero states that he was placed on bed-rest
for 30 days that day because of the May 12, 2014 injury. ECF
No. 2 at p. 3.
amended complaint, Romero alleges the same claims asserted in
the complaint, but adds that he also contacted Defendant
Warden Kathleen Green about the failure to assign him to a
bottom bunk despite the existing settlement agreement, but
Green also took no corrective action. ECF No. 16 at p. 5.
further adds that following his fall on May 12, 2014, he was
forced to walk to receive his meals and obtain medication.
Id. at p. 6.
alleges that Defendant Lt. Murphy was ordered to assign him
to a bottom bunk by Chief of Security Maycock on May 19,
2014. Romero claims that Murphy could have assigned him to a
bottom bunk prior to receiving this order, but refused.
states that he had earlier had a second surgery on the ACL in
his right knee on May 5, 2013, and that following that
surgery he was walking normally and was able to stop using
the cane he had been using for almost three years prior to
the surgery. He claims that, as a result of the May 12, 2014
fall, the ligaments were torn again. Id.
maintains that Defendants Clem, Bealer, Ashraf, Baker,
Wexford Medical Co., Murphy and Green violated his Eighth
Amendment right to remain free from cruel and unusual
punishment by violating the settlement agreement and denying
him emergency medical treatment. He asserts that Murphy and
Green violated the Eighth Amendment when he was forced to use
a bunk that was not bolted to the wall for stability and
failing to provide a ladder to access the top bunk rather
than a plastic chair which he describes as “like
stepping on ice.” ECF 16 at p. 6.
also raises a Fourteenth Amendment claim against all
Defendants stating that failure to honor the settlement
agreement, denying emergency medical treatment, and failing
to provide a stable bunk with a safe way to access it
constitutes a denial of due process. Id. at p. 7.
relief Romero seeks unspecified monetary damages.
Id. at p. 4.
provide medical records establishing that Romero received
arthroscopic surgery on May 30, 2013 at Bon Secours Hospital
(“BSH”) for partial ACL and meniscal tears
related to a then recent re-injury to the right
knee. ECF No. 18 at Ex. 1, pp. 87 - 88. The
surgery was performed by Dr. Ashok Krishnaswamy who ...