United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE
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”),  pursuant to 42
U.S.C. § 1983, alleging deliberate indifference to his
medical needs, in violation of the Eighth and Fourteenth
Amendments. 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.
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. 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.
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.
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.
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.
states that Dr. Ottey was, at the relevant time, responsible
for plaintiff’s medical care and treatment at NBCI. ECF
1 ¶ 2. 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.
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.
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,
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.
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
response is gleaned from their Motion; the Affidavit of
Robustiano Barrera, M.D. (ECF 11-1; ECF 26),  and the
voluminous medical records of plaintiff, submitted in paper
format as Ex. 2.
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. 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.
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.
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.
“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.
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.
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 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
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.
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.
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
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 and continue his use of Neurontin for
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.
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.” 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.
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.
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.
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,  Xalatan,
Cosopt,  Robaxin, and Neurontin. ECF 11-1,
¶ 18. Dr. Ottey wrote a consultation request on