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Romero v. Clem

United States District Court, D. Maryland

August 15, 2016

MICHAEL R. ROMERO Plaintiff
v.
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

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW United States District Judge.

         Defendants 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.

         Background

         The 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.[1]

         Romero 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.

         When 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.

         Romero 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.

         Romero 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.

         Romero 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.

         Romero 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.

         One 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.

         In his 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.

         He 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.

         Romero 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. Id.

         Romero 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.

         Romero 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.

         Romero 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.

         As relief Romero seeks unspecified monetary damages. Id. at p. 4.

         Defendants 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.[2] ECF No. 18 at Ex. 1, pp. 87 - 88. The surgery was performed by Dr. Ashok Krishnaswamy who ...


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