United States District Court, D. Maryland
L. Hollander United States District Judge
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
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
plaintiffs statements that he is unable to write or file an
opposition response, he has filed four pieces of
correspondence that include exhibits, and which address
his arguments as to why defendants are not entitled to
judgment in their favor. ECF 47 - ECF 50.
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.
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.
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.
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.
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. 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.
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.
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
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.
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, ...