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Angelina v. Cumberland FCI Health Services

United States District Court, D. Maryland

March 15, 2017



          GEORGE J. HAZEL, United States District Judge

         Pending is a Motion to Dismiss, or alternatively, for Summary Judgment filed by Defendants[1] federal C'orreetional Institution-Cumberland Health Services, the federal Bureau of Prisons. Health Services Administrator Shook ("HSA Shook"). Clinical Director M. Moubarek. ("Director Moubarek'"). Warden T. Stewart ("Warden Stewart"). Captain Phipps ("Cpt. Phipps"). Nurse Practitioner Crites ("NP Crites") and Disciplinary Hearing Officer Losiewicz ("DHO Losiewicz").[2] ECF No. 33. Plaintiff was informed by the Court, pursuant to Roschoro v. Garrison. 528 F.2d 309 (4th Cir. 1975). that failure to file a response in opposition to the motion filed by Defendants could result in dismissal of the Complaint. ECF No. 34. Plaintiff has failed to file anything in opposition. Upon review of the papers filed, the Court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below. Defendants* dispositive motion will be granted.

         I. BACKGROUND[3]

         Plaintiff Telle J. Angelina, a former inmate previously confined at the Federal Correctional Institution ("FCI") in Cumberland. Maryland. Hied this Complaint naming as Defendants Federal Correctional Institution-Cumberland Health Services, the Federal Bureau of Prisons, HSA Shook. Director Moubarek, Warden Stewart, C'pt. Phipps. NP Crites and DHO Losiewicz. ECF No. 1 at 1-2. Plaintiff alleged he was denied constitutionally adequate medical care in violation of the Eighth Amendment, and was denied due process in a disciplinary proceeding while housed at FCI Cumberland, hi. As a federal prisoner. Plaintiff asserts his civil rights claims pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics. 403 U.S. 388(1971). Id[4]

         In support of his Complaint. Plaintiff states that in April of 201 3 he was transferred to FCI Cumberland where he underwent a physical examination and was assigned to NP Crites. ECF No. 1 at 2.[5] During his initial examination. Plaintiff provided his complete medical history to NP Crites and released medical records he had in his possession. Id. He also provided to NP Crites the names and addresses of his past medical providers so that all supporting documentation and medical files could be examined. Id. Plaintiff advised NP Crites that he had a cancerous tumor removed from his left testicle in 1982: lung cancer in 1990. which resulted in the removal of the upper right lobe; and a second lung cancer in 2008 in the left lung. hi. Plaintiff advised that the cancers were treated via surgery, radiation and chemotherapy, hi.

         Plaintiff states that he also advised NP Crites that in 2005 he experienced acute and ultimately chronic problems with his bladder and the ability to pass urine. Id. He told NP Crites that a urology specialist advised him that due to all of the treatments he had undergone, it was likely that the nerves that signal bladder relief had been damaged. Id. Plaintiff advised NP Crites that at that time the issues with his bladder were "a minor nuisance." Id. at 3.

         Plaintiff further advised NP Crites that his oncologist advised him that;'due to his age and type of cancers, [his] prognosis for survival after (5) five years was not optimistic." Id. The oncologist suggested that Plaintiff undergo x-rays every four months for possible early detection. Id.

         In October of 2013. Plaintiff began to experience serious problems with his bladder, id. He states that he tried to seek medical help but received no reply other than to be directed to submit "cop-outs" to the doctor or nurse provider and watch for "call out." appointments for inmates posted on a daily call out sheet. Id.

         On January 8. 2014. Plaintiff submitted a request to health services indicating he was having "difficulty in passing water" and advising that he had this problem in the past, took medication, and the issue resolved. Id. at 11. The problem had now resurfaced and he sought medical attention. Id. Plaintiff was seen by Physician's Assistant ("P. A.") lorn Cera on January 24. 2014. Id. at 12. It was noted that Plaintiff reported a history of symptoms of underactive bladder, urinating approximately two-three times daily. Id. It was also noted that Plaintiff stated he consulted with an urologist in the past who prescribed medication for the condition. Id. Gera did not prescribe medication or indicate any follow up regarding this issue. Id.

         On February 22, 2014. Plaintiff was called to the lieutenant's office, along with other inmates, for a random urine screen. Id. at 4. Plaintiff advised the officer in charge that it would be difficult for him to produce a specimen since, he had just voided his bladder. Id. Plaintiff requested an alternative testing e.g. blood test or oral .swab, or to be placed in a "dry cell" until he could provide a specimen. Id. Plaintiff also requested that the officers contact health sen ices in order to demonstrate he had a bladder condition which would prohibit him from providing the sample. Id. The officers contacted USA Shook who advised that there was no record that Plaintiff suffered a bladder problem and he was not on medication to treat such a problem. Id. Plaintiff unsuccessfully protested that the information was incorrect and directed HSA Shook where he could locate the information. Id. Plaintiff was charged with an inmate rule violation for failing to produce a urine sample in the allotted time. Id. He was placed in the special housing unit ("SHU") pending a disciplinary hearing. Id.

         Plaintiff was placed in a SHU cell where only a top bunk was available. Id. Plaintiff indicates that several cells with bottom bunks were available. Id. at 5. He indicates that due to his age and medical history and lack of access to the upper bunk via a ladder he continued to injure his knees and thighs from "the acrobatics necessary to reach upper berth." Id.

         On February 25. 2014. Plaintiff was given notice that his case would be heard before the disciplinary hearing officer. Id. at 15. He was charged with "Refusing to Provide a Urine Sample or to Take Part in Any Other Drug-Abuse Testing." Id. On that same date, he was notified of his rights at a discipline hearing. Id. Plaintiff selected NP Crites to be his inmate advocate during his disciplinary hearing. Id. He requested that she search his file and pull his "cop outs" and bring P.A. Gera to the hearing to defend the charge. Id. at 5.

         Plaintiffs disciplinary hearing was held before DHO Losiewiczon March 5. 2014. Id. at 5. 15-18. At the time of the hearing. Plaintiff was advised that NP Crites could not attend in person and PA Gera was not able to attend as his witness. Id. at 5. 15-16. Plaintiff states that due to the difficulty he was experiencing getting into the top bunk in his cell he agreed to proceed with the hearing, Id. at 5.

         Plaintiff states that he was advised of the possible consequences if he were found guilty and the DHO also advised him that if Plaintiff could provide evidence in support of his claim regarding his bladder, he had an excellent chance for a favorable appellate outcome. Id.

         During the hearing. Plaintiff denied refusing to submit a urine sample, indicating his inability to provide one. Id. at 15-16. NP Criles testified that Plaintiff had reported to PA Gera that he previously had problems urinating and his medical records had been requested to document the issue. Id. at 16. NP Crites further testified that she checked with the Chief Pharmacist and reviewed Plaintiffs medical records, finding no prescribed medications that would cause Plaintiff difficulty producing urine. Id. Plaintiff declined to ask any further questions of NP Crites. Id.

         The DHO found Plaintiff had committed the prohibited act of refusing to provide a urine sample or take part in any other drug-abuse testing. Id. In support of his finding, the DUO relied on the reporting officer's description of the incident as well as Plaintiffs admission that he did not provide the specimen within the lime allotted. Id. at 16-17. In finding Plaintiff guilty of the rule infraction, the DHO took into consideration Plaintiffs statements regarding his past medical conditions and treatment and his efforts to secure additional treatment. Id. at 1 7. The DHO found there was little evidence to confirm or explain Plaintiffs inability to produce the specimen within the two-hour window. Id. After the hearing, plaintiff was found guilty and sanctioned to a loss of 41 days of good conduct credits. 20 days disciplinary segregation (suspended pending '' While Plaintiff states that he offered to take part in other drug-abuse testing, he does not claim to have mentioned this tact during the disciplinary hearing and the report of the hearing does not indicate any testimony by Plaintiff or other personnel regarding that issue. 180 days clear conduct) and 90 days social visiting restriction. Id. Plaintiff was provided written notice of the DUO decision, Id. 18.

         Plaintiff has provided numerous sick call requests filed after his rule infraction seeking medical care regarding his bladder issues. Id. at 21-27. He also attached copies of complaints he filed regarding the lack of ...

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