United States District Court, D. Maryland
TELLO J. ANGELINA, Plaintiff,
CUMBERLAND FCI HEALTH SERVICES, et al., Defendants.
J. HAZEL, United States District Judge
is a Motion to Dismiss, or alternatively, for Summary
Judgment filed by Defendants 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"). 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.
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.
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.
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.
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.
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
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.
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.
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
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
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.
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.
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.
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.
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.
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 ...