United States District Court, D. Maryland
THEODORE D. CHUNG UNITED STATES DISTRICT JUDGE
December 18, 2015, Plaintiff Joshua Moses, currently confined
at the Federal Correctional Institution in Cumberland,
Maryland ("FCI Cumberland"), filed a Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2241. On
December 28, 2015, he filed a Motion for a Temporary
Restraining Order and a Preliminary Injunction. The substance
of Moses's Petition and Motion, that prison staff have
been deliberately indifferent to his serious medical
condition, prompted this Court to construe his petition for
writ of habeas corpus as a civil rights action under
Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), alleging a violation of Moses's right under the
Eighth Amendment to the United States Constitution to be free
from cruel and unusual punishment. Based on Moses's
allegations, the Court ordered Defendants to file a Response
to the Motion. After Defendants filed their Response on
February 2, 2016, Moses filed a Reply memorandum of law on
February 16, 2016. Since filing the Petition and the Motion,
Moses has filed five other motions to supplement the original
petition and has filed two separate motions for appointment
of counsel. The Court discusses all of these motions in turn.
August 9, 2009, Moses was shot multiple times in his torso,
leading to abdominal injuries that required multiple
surgeries to repair. Those surgeries were performed by Dr.
Pathak Abhjit at Temple University Medical Center
("Temple") in Philadelphia, Pennsylvania.
13, 2014, Moses was taken into federal custody and placed in
the Federal Detention Center in Philadelphia, Pennsylvania
("FDC") to await prosecution on federal charges.
While Moses was at FDC, he began to complain of a
splinter-sized wire protruding from his healed abdominal
surgical incision. At the time, medical personnel reported
that the skin surrounding the protrusion was dry and intact,
with no swelling, redness, or other signs of infection.
12, 2015, upon his conviction for possession of a firearm by
a convicted felon, in violation of 18 U.S.C. §
922(g)(1), Moses was sentenced to 102 months of imprisonment.
On May 26, 2015, he was transferred to FCI Cumberland to
serve his sentence.
to Moses, immediately upon his arrival FCI Cumberland, he
informed prison staff of his medical history. Defendant
Fazenbaker instructed Moses to email the prison medical
service about his condition and also referred to him as
"the guy who's been shot up a whole bunch of
times." Compl. ¶ 24. On June 2, 2015, Moses
contacted prison medical services personnel to complain of
stomach pain and nausea and to alert them to the metal wire
protruding from his abdomen. Moses asked that an MRI be
performed. That same day, Moses was seen by Defendant Dr.
Stephany McGann, who informed Moses that she was ordering an
x-ray of Moses's abdomen. Dr. McGann also informed Moses
that she could give him only Tylenol for his pain because,
based on his lab work, any other pain medications posed a
danger of causing organ damage. Moses then signed a release
form to enable the prison to obtain his records from Temple.
to Moses, although he was told that he would receive Tylenol,
he received no pain medication. Dissatisfied with the
treatment he received, Moses filed an administrative
grievance on July 17, 2015. Over the ensuing month, Moses
repeatedly emailed prison medical officials to complain about
his "extreme pain and many symptoms" and also to
ask that "medical personnel qualified to make an
informed decision" be allowed to evaluate his condition.
Compl. ¶ 29. On August 17, 2015, Moses noticed that the
protrusion from his abdomen was "leaking clear
fluid." Id. ¶ 30. On August 26, 2015, when
Moses noticed that the area near the metal wire also had
"infectious smells, " Moses was seen by Dr. McGann
and then by Defendant Dr. Mohamed Moubarek, the Clinical
Director at FCI Cumberland, who declined to refer Moses out
to a specialist for a CT scan because he believed such a
procedure was not medically necessary. Id. ¶
31. Instead, Dr. Moubarek ordered that the protrusion be
covered with a dressing. Based on this incident, Moses
instructed his criminal defense attorney to contact Defendant
Allison Foote, the Assistant Health Services Administrator
for the prison, regarding the adequacy of his medical
treatment. On August 27, 2015, Defendant Timothy Stewart, the
Warden of FCI Cumberland, issued his response to Moses's
grievance, indicating that the prison and its medical staff
would "continue to investigate the proper treatment for
the wire mesh" but denying Moses's request that he
be seen by a specialist outside the prison. Id.
¶ 33. Moses appealed that determination and asked to be
transferred to a medical facility.
asserts that following his August 26, 2015 appointment, he
continuously complained about pain, vomiting, and diarrhea
and asked for prison staff to take pictures of his abdomen.
Photographs were taken on September 15, 2015. On September
29, 2015, Moses asked Dr. Moubarek and Defendant Jamie
Hamilton-Rumer, a Health Services Administrator for FCI
Cumberland, for an updated plan of care. On September 30,
2015, while the dressing on his abdomen was being changed,
Dr. Moubarek approached Moses and, in what Moses perceived to
be an attempt to intimidate him, asked him why he had filed
complaints against prison medical personnel and later told
Moses to "take us to Court and we will win." Compl.
¶ 36. Moses asserts that Dr. Moubarek then ordered that
his wound remained undressed, in retaliation for the
grievance Moses had filed. Based on Dr. Moubarek's
instruction, Defendant Hall, a duty nurse, refused to apply a
dressing to Moses's abdomen despite Moses's request
that she do so. As a result of this encounter, Moses filed
another grievance and began documenting his interactions with
prison medical staff and sending that information to
Defendant Maria Arviza, the prison's Associate Warden,
and to Warden Stewart.
asserts that a series of retaliatory incidents followed. On
October 4, 2015, he began vomiting blood while in the
prison's recreation yard as a result of his
gastroesophageal reflux disease ("GERD"). He was
promptly seen by Defendant Boch, the duty nurse. Moses asked
Boch to renew his prescription for 150 mg tablets of Zantac,
but Boch informed him that the prescription had been
discontinued and that if Moses wanted the medication, he
would have to purchase the 75 mg dose available in the prison
commissary. Moses further alleges that when, as a result of
continued stomach distress, he did not arrive on time for his
October 5, 2016 appointment with a prison doctor, the medical
staff refused to see him. The next day, Hamilton-Rumer gave
him a "bogus incident report" for an unexcused
absence that led to sanctions against Moses. Compl. ¶
October 13, 2015, Moses's appeal of the Warden's
determination on Moses's July 17, 2015 grievance was
denied, with the prison Regional Director finding that Moses
was receiving adequate medical care. On October 20, 2015,
Moses appealed that determination to the Bureau of
Prison's Office of General Counsel. On October 29, 2015,
Moses was then called in to meet with Defendant
Hershenberger, a prison psychologist, who asked him about his
complaint and joked that he "may have to harass"
Moses, which Moses interpreted as retaliation for pursuing an
appeal. Compl. ¶ 46. On November 17, 2015, Moses's
appeal was denied, with the Office of General Counsel finding
that he was receiving adequate medical treatment.
on October 6, 2015, Dr. Moubarek spoke with Dr. Pathak, the
surgeon who had operated on Moses in 2009. Dr. Pathak
suggested that Dr. Moubarek order some form of imaging to
rule out fistulas or other issues. On October 21, 2015, Moses
was approved for a CT scan, which was then scheduled for
November 9, 2015. On November 12, 2015, Dr. McGann informed
Moses that the results of the CT scan were "normal for
someone in [Moses's] condition." Compl. ¶ 47.
When Moses asked what could be done about the "extreme
pain" and fluid discharge, she said that she would
follow up with Dr. Moubarek. Id. ¶ 47.
approximately November 18, Moses abdomen had a fleshy
protrusion "sticking out of his stomach that looks like
a tongue." Compl. ¶ 49. At the same time,
"green slime" and a "foul stench" began
to emanate from the area of the protrusion, prompting
Defendant Swick, a duty nurse, to urge Dr. McGann to
"'really' take a look at the wound." Mot.
Prelim. Inj. ¶ 4, ECF No. 4. Dr. McGann, however, asked
Swick what she was documenting about any leak and odor. When
Swick showed her area of the protrusion, Dr. McGann stated,
"I'm not putting it ...