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Ervin v. Wexford

United States District Court, D. Maryland

May 26, 2017

ROGER ERVIN Plaintiff
v.
WEXFORD, et al. Defendants

          MEMORANDUM

          Ellen L. Hollander United States District Judge

         Roger Ervin, who is self-represented, is incarcerated at North Branch Correctional Institution ("NBCI") in Cumberland, Maryland. He has filed suit under 42 U.S.C. § 1983 against a host of medical and correctional defendants.

         Among the motions pending in the above-captioned case is plaintiffs recent motion to stay. ECF 46. In it Ervin seeks a stay to permit him to file an opposition response to the pending motions to dismiss or for summary judgment. He states the stay is needed so that he will have time to recover from planned eye surgery and also because he has been assigned to administrative segregation and does not have access to legal materials. Id.

         Notwithstanding plaintiffs statements that he is unable to write or file an opposition response, he has filed four pieces of correspondence[1] that include exhibits, and which address his arguments as to why defendants are not entitled to judgment in their favor. ECF 47 - ECF 50.

         The last piece of correspondence from plaintiff is written in the form of an affidavit and does not appear to be written in plaintiffs handwriting. ECF 50. In that correspondence plaintiff renews his motion for preliminary injunction requiring the medical defendants to provide him with needed eye surgery and for a transfer to Jessup Correctional Institution ("JCI"). Id.; see also, e.g., ECF 7; ECF 12.

         For the reasons set forth below, plaintiffs motion for stay and motion for preliminary injunction will be denied. But, I will grant an extension of time to plaintiff to file an opposition to the pending dispositive motions.

         I. Background

         As noted, plaintiff is incarcerated at NBCI. In his Complaint (ECF 1), and his supplement (ECF 5), and in a motion for extension (ECF 12), plaintiff alleged that he required sinus surgery and eye surgery, both of which would be performed at a facility in Baltimore City. He claims that each time he is scheduled for a procedure he is transferred to JCI in Jessup, Maryland. Further, he asserts that every time he is temporarily transferred for purposes of a medical procedure his prescribed medications are not sent with him. In addition, he claims that the failure to provide him with the prescribed eye drops for his glaucoma is endangering his vision, and that he is at risk of dying if he develops a sinus infection because the infection could enter his brain through a hole in his eye. The injunctive relief he requests is a transfer to JCI so that the issue concerning continuity in receipt of prescription medication can be resolved. See ECF 1, 4, 5, 12.

         By Order dated February 9, 2017 (ECF 13), I required counsel for the medical defendants and for the Division of Correction to show cause why plaintiffs request for injunctive relief should not be granted. Id. The responses to the Order, supported by affidavits and verified records, have been received. ECF 20 and ECF 21.

         Medical defendants respond that plaintiff has two medical issues that require surgery and his temporary transfer to JCI. The first surgery involved correction of a deviated septum and hypertrophy of the nasal turbinates.[2] He underwent the surgical procedure on January 24, 2017. ECF 21-3 at 3, 12. On the day after the surgery, an antibiotic (azithromycin) was ordered and plaintiff was seen by Dr. Mahboob Ashraf, who noted that plaintiff was observed in the JCI infirmary for 23 hours following the surgery and he did not voice any medical complaints during that time. ECF 21-3 at 7 - 10, 29. Plaintiff was discharged from the infirmary to NBCI general population on January 26, 2017. Id. at 29.

         The second surgery that plaintiff requires is for treatment of "angle recession glaucoma" of his left eye. ECF 21-3 at 14. Plaintiff underwent surgery for the same condition in 2008, but it failed to correct the problem. Dr. Paul Goodman recommended that plaintiff undergo cataract removal surgery and tube shunt insertion in his left eye in a consultation note dated January 19, 2017. On February 22, 2017, plaintiff arrived at JCI for eye surgery that was scheduled for the following day; however, he refused the eye surgery because "he felt he wasn't healed from the last surgery he had on his nose." Id. at 18, 20. There is no indication that plaintiff was concerned about medication that was not sent with him on his transfer to JCI. Id. at 31.

         The Division of Correction defendants assert that the injunctive relief should be denied because plaintiff is a maximum security inmate serving a sentence of life plus a consecutive 20 years for first degree rape, a violent felony. ECF 20-1 (Declaration of John White, Case Management Specialist). Such inmates are ineligible for placement into prisons that are not maximum security facilities, like JCI. Id. Further, they report that the procedure for ensuring that prescribed medication accompanies the inmate on a temporary transfer is partially the responsibility of correctional and medical staff and partially the responsibility of the inmate himself. Id.

         Medications that are dispensed to plaintiff on a daily basis by medical staff are packed and sealed in a package by medical staff and the transportation correctional officer picks them up prior to leaving the facility. ECF 20-2 (Declaration, Donald Gulick, Transportation Coordinator); ECF 21-2 (Affidavit of Mercy Addai, RN). Correctional staff are not privy to the contents of those sealed packages. ECF 20-2. The medication that plaintiff is provided to keep with him, designated as "keep on person" or "KOP", is kept in his cell and it is his responsibility to bring that medication with him. ECF 21-4 (Affidavit of Krista Bilak, RNP). Neither correctional nor medical staff enter the inmate's cell to determine if appropriate medications are being brought with the inmate on the transfer. Id.

         In plaintiffs case the KOP medications for which he is responsible include the eye drops that he asserts are crucial to saving his eyesight because they control the pressure in his eyes. ECF 21-4 at 3. Thus, to the extent that plaintiff did not have the eye drops with him on a particular trip, it was not the result of a deliberate act by correctional or medical staff. Rather it was plaintiffs failure to provide the eye drops to nurses prior to his transportation. Id. Despite that fact, ...


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