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Ervin v. Ottey

United States District Court, D. Maryland

August 18, 2016

ROGER ERVIN Plaintiff
v.
COLIN OTTEY, MD, et al. Defendants

          MEMORANDUM

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE

         Plaintiff Roger Ervin, a self-represented inmate confined to North Branch Correctional Institution (“NBCI”), filed suit against defendants Colin Ottey, M.D. and Wexford Health Services, Inc. (“Wexford”), [1] pursuant to 42 U.S.C. § 1983, alleging deliberate indifference to his medical needs, in violation of the Eighth and Fourteenth Amendments.[2] ECF 1. In particular, Ervin complains that defendants have not adequately addressed his medical issues, related to his fall from a top bunk in January 2012. Id.

         Defendants have filed a motion to dismiss or for summary judgment. ECF 11 (the “Motion”). It is supported by an Affidavit and more than 600 pages of plaintiff’s medical records, filed in paper format, under seal, as Exhibit 2.[3] On June 27, 2016, the Clerk docketed plaintiff’s request for an extension-until August 20, 2016-to oppose the Motion. ECF 24. By Order of June 28, 2016 (ECF 25), I granted plaintiff’s request for an extension, until August 1, 2016. Plaintiff has filed nothing further. But, he filed correspondence in March 2016, along with exhibits, which I shall construe as his opposition. See ECF 19.

         Also pending is plaintiff’s motion for temporary restraining order (ECF 7, “TRO Motion”), supported by a Memorandum (ECF 7-1), plaintiff’s Declaration (ECF 7-2), and other exhibits. ECF 7-3; ECF 7-4.

         No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, defendants’ Motion, construed as a motion for summary judgment, shall be granted, and plaintiff’s TRO Motion shall be denied.

         I. Factual Background

         A. Plaintiff’s Allegations

         Ervin asserts in his Complaint that “at an earlier time” he fell from his bunk at NBCI, was injured, and was treated and released from “Maryland Western Regional Medical Center.” ECF 1, ¶ 6. He claims that since the fall, he has been experiencing multiple health problems, including severe nosebleeds, accompanied by “the right side of his body shutting down” and a loss of consciousness. Id. ¶ 7.

         Plaintiff states that Dr. Ottey was, at the relevant time, responsible for plaintiff’s medical care and treatment at NBCI. ECF 1 ¶ 2.[4] He asserts that Dr. Ottey was aware of plaintiff’s health issues (id. ¶ 8) and prescribed “pain-killers for his injuries from the fall.” ECF 1, ¶ 9. According to Ervin, Ottey “informed [him] that he would deal with plaintiff’s head conditions first, and then deal with the other problems later.” Id. ¶ 10. Despite that reassurance, plaintiff states that Dr. Ottey did not diagnose or treat plaintiff’s nosebleeds or other ailments, “causing him to pass out.” Id. ¶ 11.

         Plaintiff alleges that he continued to complain and attempted to be seen by a medical doctor, but his efforts were unavailing. Id. ¶ 12. Moreover, he claims that his condition has worsened. Id. ¶ 13. Ervin states he has no feeling on the right side of his body; he is unable to raise his right arm completely; and his eyes are bloodshot. Id. ¶¶ 14-16. Despite his worsening condition, plaintiff claims that Ottey failed to treat him or send him to a specialist to determine the “root cause” of his medical problems. Id. ¶ 17. In other instances, Ottey and Wexford failed to return Ervin to outside specialists, as the specialists had directed. Id. ¶¶ 18, 29.

         Plaintiff claims that he later learned “from an outside medical specialist” who examined him that he has “some sort of blockage” that requires surgery. Id. ¶ 21. He states that if defendants had treated him, they would have learned that he had this blockage. Id. ¶ 23. Further, Ervin alleges that an “outside specialist/physician” prescribed specific medications for him, which were forwarded to defendants, but defendants failed to provide the medication to plaintiff. Id. ¶¶ 24, 25. Instead, defendants provided “ineffective treatment that would only aggravate the problem. . . .” Id. ¶ 26. Plaintiff did not identify the medications prescribed by either provider, however.

         According to plaintiff, he has been “suffering from these conditions since he . . . fell off his bunk.” Id. ¶ 22. Ervin maintains that he has had little or no treatment (id. ¶ 19), and suggests that this is a “common practice by all of the defendants in an attempt to save money.” Id. ¶ 20. He insists that “defendants’ actions have contributed to a number of [his] injuries” (id. ¶ 27), and he complains that defendants failed to note his medical condition “on his I.D.” card. Id. Plaintiff also avers that he continues to experience black-outs, numbness in his body, and redness in his eyes. Id. ¶ 31, and reiterates that defendants have “failed to provided [sic] the plaintiff with the prescribed medical treatment . . . .” Id. ¶ 30. He explains that noting his medical condition on his I.D. card would alert prison officials and prevent injuries from occurring. Id. ¶ 28.

         As relief, plaintiff seeks an injunction requiring defendants to note his medical condition of glaucoma on his I.D., assignment to a single cell, and defendants’ adherence to orders issued by outside medical specialists. ECF 1 at 7. In addition, plaintiff seeks compensatory and punitive damages. Id.

         B. Defendants’ Response

         Defendants’ response is gleaned from their Motion; the Affidavit of Robustiano Barrera, M.D. (ECF 11-1; ECF 26), [5] and the voluminous medical records of plaintiff, submitted in paper format as Ex. 2.

         Dr. Barrera is Wexford’s Medical Director in Cumberland. He also provides medical services to inmates at NCBI. ECF 11-1, ¶ 1. Dr. Barrera avers that plaintiff is in his mid-fifties (id. ¶ 5) and has a medical history of glaucoma, conjunctivitis (also known as “pink eye”), blepharitis (inflammation of the eyelids), hypertension, sinusitis, and benign nasal polyps. ECF 11-1, ¶ 5.[6] He is seen approximately once a week for his various medical complaints. Id. He has also received surgery and follow-up appointments with an off-site ear, nose, and throat (“ENT”) specialist, Dr. Anwar Mumtaz. Id. Additionally, plaintiff received multiple diagnostic studies for the treatment and diagnosis of his medical issues, including x-rays, MRIs and CT scans, and he was evaluated and treated by an off-site neurosurgeon. Id. Notably, Dr. Barrera avers that plaintiff has a “well documented history of noncompliance” with prescribed medication and medical advice. Id.

         Dr. Barrera’s Affidavit sets forth a summary of information contained in Ex. 2. For convenience, I will generally cite to the Affidavit, rather than to Ex. 2.

         On January 30, 2012, plaintiff was found in his cell in a puddle of blood, and reported that he had fallen from his bunk. Ex. 2 at 6-8; ECF 11-1, ¶ 7. Plaintiff was treated for a two-centimeter laceration to the back of his head. ECF 11-1, ¶ 7. Plaintiff told medical staff that he could not move his back nor feel his legs, but he “flinched” when his foot was touched, indicating his sensation was intact to the lower extremities. Id. at 6. Based on plaintiff’s report that he hit his head on the floor, Ervin was transported by ambulance to Western Maryland Hospital for treatment. Id.

         Ervin “was observed to have a full range of motion in his neck and was ambulating on his own without difficulty.” ECF 11 at 10 (citing Ex. 2 at 6-8). He was diagnosed with a sprained neck and back and given Ibuprofen for his pain. ECF 11 at 10; ECF 11-1, ¶ 8. He was returned to the prison the following day. Id.

         At the time of plaintiff’s fall in January 2012, Wexford was not the direct medical care provider under contract with the Maryland Department of Public Safety and Correctional Services (“DPSCS”). ECF 11-1, Barrera Affidavit, ¶ 4. Rather, Wexford was the utilization review provider until July 1, 2012, when it was awarded the contract to provide direct medical care to Maryland prisoners. Id. In its earlier capacity as utilization review provider, however, Wexford was responsible only for the approval or denial of specialty medical services requested for inmates by their medical providers. Id.

         Following his fall, plaintiff continued to complain of headaches, right-sided numbness, and muscle stiffness in his neck and back. ECF 11-1, ¶ 9. Despite these reports, plaintiff’s “range of motion was continually observed to be within normal limits . . . .” Id. Moreover, he “had full motor function” and he walked “without assistance and with a steady gait.” Id. Plaintiff was prescribed Baclofen (a muscle relaxer) and Neurontin[7] prior to his fall and continued to receive those medications after the fall. Id. He was also provided with Naproxen, Robaxin (a muscle relaxer), and Ibuprofen, as well as hot and cold compresses to assist with his reports of pain and stiffness. Id. Despite plaintiff’s complaints, his ailments did not affect his ability to engage in “activities of daily living.” Id.[8]

         After July 1, 2012, plaintiff received medical assignments for a bottom bunk and double handcuffs, as well as additional prescription medication of Tylenol No. 3 (acetaminophen with codeine), Mobic (an anti-inflammatory pain medication), Amitriptyline (an anti-depressant often prescribed for treatment of chronic pain), and Ultram (a pain medication). ECF 11-1, ¶ 10. Although plaintiff was provided physical therapy, defendants assert that he refused to perform the self-management exercises he was taught. Id.

         On August 9, 2013, correctional officers reported that plaintiff was lying face down in his cell and was not responding to verbal commands. Ex. 2 at 188 - 89; ECF 11-1, ¶ 11. Plaintiff was seen by Carla Buck, R.N. Id. She administered smelling salts in order to determine if plaintiff was truly unconscious. Because plaintiff “quickly sat up” after smelling salts were administered, it was determined that he was feigning unconsciousness. ECF 11-1, ¶ 11. At that time, plaintiff’s prescriptions for a bottom bunk and for Tylenol No. 3 had been discontinued. Id. Although plaintiff claimed having pain in his legs that caused him to fall, he walked out of the medical room and back to his cell without assistance or discernible difficulty. Id.

         Plaintiff was referred to an ENT on January 19, 2011, for treatment of a nasal polyp, after a CT scan of his sinuses on December 29, 2010, revealed a right-sided nasal polyp. ECF 11-1, ¶ 12. Plaintiff was seen by Dr. Anwar Mumtaz on March 8, 2011, at Bon Secours Hospital (“BSH”). Ex. 2 at 509 - 10. He performed a nasal endoscopy and did not observe a polyp. However, “the CAT scan” was not available to Dr. Mumtaz when he examined plaintiff. Ex. 2 at 510.[9] Therefore, he could not make a recommendation regarding surgery at that time. Id.; see also ECF 11-1, ¶ 13. Dr. Mumtaz recommended plaintiff begin using Flonase nasal spray[10] and continue his use of Neurontin for pain. Id.

         On June 14, 2011, Dr. Ottey requested an ENT consultation for plaintiff, due to plaintiff’s complaints of frequent nosebleeds and headaches. Ex. 2 at 515; ECF 11-1, ¶ 14. He made another request for referral to an ENT specialist on August 11, 2011. Ex. 2 at 517; ECF 11-1, ¶ 14.

         Dr. Mumtaz saw plaintiff at BSH on September 13, 2011. On this occasion, Dr. Mumtaz was able to review the CAT scan of plaintiff’s sinus and noted that it was “basically . . .unremarkable with some blockage of the middle meatus bilaterally.”[11] Ex. 2 at 519; see ECF 11-1, ¶ 15. Dr. Mumtaz recommended a nasal endoscopy with possible polypectomy and plaintiff consented to the procedure. Ex. 2 at 519.

         Plaintiff was prepared for surgery. The nasal endoscopy revealed, inter alia, a “nasopharyngeal mass” (Ex. 2 at 520), which was removed and biopsied. Id. Polyps were also surgically removed with cauterization (burning). ECF 26, ¶ 15. Plaintiff left recovery in good condition and was discharged with a prescription for Percocet to treat pain and instructions to keep his nasal passage moist through use of saline nasal spray administered five times a day. Ex. 2 at 520; ECF 26, ¶ 15.

         Dr. Mumtaz saw Ervin at BSH on November 22, 2011, for follow-up. Ex. 2 at 527 - 28; ECF 11-1, ¶ 17. Dr. Mumtaz noted there were no significant complications from the surgery and no significant nasal obstructions were observed. Ex. 2 at 527. He did not request that plaintiff return for another follow-up visit. Id.

         As indicated, Wexford became the medical care provider for DPSCS on July 1, 2012. ECF 11-1, ¶ 18. At that time, plaintiff was receiving saline nasal spray, Alphagan, [12] Xalatan, [13] Cosopt, [14] Robaxin, and Neurontin. ECF 11-1, ΒΆ 18. Dr. Ottey wrote a consultation request on ...


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