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Moses v. Stewart

United States District Court, D. Maryland

September 9, 2016

JOSHUA MOSES, Prison Identification 55716-066, Plaintiff,
TIMOTHY STEWART, Warden, S. MOHAMED MOUBAREK, Clinical Director, MARIA ARVIZA, Associate Warden, STEPHANY MCGANN, Physician, JAMIE HAMILTON-RUMER, Health Services Administrator, ALLISON FOOTE, Assistant Health Services Administrator, TODD, Duty Nurse, HALL, Duty Nurse, VARIMETER, Duty Nurse, BOCH, Duty Nurse, SWICK, Duty Nurse, CONNOR, Unit Manager, FAZENBAKER, Manager, M. MUIR, Correctional Counselor, and HERSHENBERGER, Psychologist, Defendants.



         On 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.


         On 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.

         On May 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.

         On May 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.

         I. Moses's Account

         According 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.

         According 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.

         Moses 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.

         Moses 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. ¶ 39.

         On 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.

         Meanwhile, 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.

         By 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 ...

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