United States District Court, D. Maryland
ELMER A. GAL VAN JIRON, #332595 Plaintiff,
DR. JASON CLEM, WEXFORD MEDICAL COMPANY Defendants.
L. Hollander United States District Judge.
October 20, 2016, plaintiff Elmer Galvan Jiron,
self-represented inmate incarcerated at the Eastern
Correctional Institution ("ECI"), filed a civil
rights action against Wexford Health Sources, Inc.
("Wexford"), the private health care contractor
serving inmates in the Maryland Department of Public Safety
and Correctional Services, and Dr. Jason Clem, the Medical
Director at ECI (hereinafter, "Medical
Defendants"). In the suit, filed pursuant to 42 U.S.C.
§ 1983, plaintiff seeks monetary compensation and
injunctive relief, i.e., referral to an eye
specialist and enforcement of all instructions and prescribed
medicines. ECF 1 at 4.
Medical Defendants have filed a motion to dismiss or, in the
alterative, a motion for summary judgment. ECF 10. It is
supported by a legal memorandum (ECF 10-3) (collectively,
"Motion") and a number of exhibits. Pursuant to the
dictates of Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), on January 11, 2017, the Clerk of Court informed
Galvan Jiron that defendants had filed a dispositive motion;
that Galvan Jiron had seventeen days in which to file a
written opposition; and that if he failed to respond, the
claim against Wexford and Clem could be dismissed, without
further notice. ECF 13. Galvan Jiron was granted two
extensions of time in which to respond, and he filed an
opposition on April 3, 2017 (ECF 19, "Opposition"),
along with exhibits, including his own Affidavit. ECF 19-1 at
3-4. The Medical Defendants filed a reply. ECF 20.
matter is ready for disposition, and no hearing is necessary.
See Local Rule 105.6 (D. Md. 2016). For the reasons
that follow, I shall construe the Motion as one for summary
judgment and GRANT it.
Jiron alleges that on or about June 11, 2014, he began to
experience a severe eye disorder, resulting in his referral
to an eye specialist, "Dr. Summerville." The doctor
performed an operation and prescribed specific medicine and
instructions to be carried out by the medical department.
Plaintiff complains that the medical department did not
adhere to the instructions or provide prescribed items
(sunglasses, pain medication, and eye drops), he was
subjected to severe pain, and he is losing his vision. ECF 1
at 4. Further, plaintiff claims that he sought additional
treatment from Dr. Clem and asserts that defendants have been
deliberately indifferent to his medical needs. Id.
Medical Defendants' materials indicate that Galvan Jiron
is a 46-year old male with a medical history significant for
pterygium,  esophageal disease, constipation, and
backache. ECF 10-5, Clem Aff. Dated January 10,
On April 30, 2014, while plaintiff was housed at North Branch
Correctional Institution ("NBCI"), he was seen by
an ophthalmologist, Dr. Michael Summerfield, due to Galvan
Jiron's complaints concerning his right eye. Id.
¶ 5. Galvan Jiron reported that he was provided eye
drops, but he was not taking them because they did not help.
Id. His uncorrected vision in his right eye was
20/20 and 20/25 in his left eye. Dr. Summerfield recommended
removal of the pterygium. Galvan Jiron was prescribed
Visine-A at that time. Id.
11, 2014, Galvan Jiron was transferred to the Western
Maryland Health System for pterygium removal, with autograft
in the right eye, to be performed by Dr. Summerfield.
Id. ¶ 6. Galvan Jiron was informed of the risks
of the surgery, including blindness or loss of the eye.
Id. A local anesthetic was injected and "the
pterygium was excised in its entirety." Id.
"A graft was then sewn into place over the excised
defect." Id. Post-operative drops of Pred Forte
and Vigamox were applied and "the eye was patched
and shielded." Id; ECF 12 at 18-25. Galvan
Jiron was taken to the recovery room. No new medications for
the eye were prescribed. Dr. Summerfield was to see Galvan
Jiron the following day. ECF 10-5, ¶ 6; ECF 12 at 28-33.
Jiron was returned to the Western Correctional Institution on
June 12, 2014, and admitted to the infirmary for
twenty-four-hour observation. ECF 10-5, Clem Aff, ¶ 7;
ECF 12 at 1. He was seen by Delores Adams, R.N., that same
day for a complaint of discomfort in his right eye associated
with photophobia (abnormal intolerance to light). ECF 10-5,
¶ 7. Adams was unable to inspect the eye due to Galvan
Jiron's refusal to open it. Id. Galvan Jiron
denied nausea, was able to ambulate independently, and was
able to perform his daily living activities without
assistance. Id; ECF 12 at 2-3.
Jiron was also seen by Dr. Summerfield on June 12, 2014. ECF
10-5, ¶ 8. The ophthalmologist noted that Galvan
Jiron's right eye was in '"excellent
condition'" and that his uncorrected visual acuity
for his left eye was 20/60. Id. Dr. Summerfield
noted that plaintiff was ready to be discharged from the
infirmary and returned to general population at NBCI. Id;
see also ECF 12 at 36.
14, 2014, Galvan Jiron was seen by Dr. Colin Ottey for a
provider visit related to his recent eye surgery. ECF 10-5,
¶ 9. He reported pain and blurred vision. Dr. Ottey
noted that Galvan Jiron was photophobic and that he would
discuss Galvan Jiron's symptoms with Dr. Summerfield.
Id. He ordered Galvan Jiron medically assigned to
receive meals in his cell for two weeks. Id; ECF 12
at 6-7. On June 18, 2014, Galvan Jiron was provided a bottle
of artificial tears by Kristi Cortez, R.N. ECF 12 at 6-8.
26, 2014, Galvan Jiron was seen by Nurse Practitioner Janette
Clark for complaints of eye pain. ECF 12 at 9-11; ECF 10-5,
¶ 10. She noted that Galvan Jiron had recently
had surgery on his right eye and that his sclera was
reddened. In addition to his Visine- A, Galvan Jiron was
prescribed Pred Forte and artificial tears. His feed-in
medical assignment was extended for thirty days, he was
provided an eye patch, and he was instructed to tape the eye
shut while wearing the patch. Galvan Jiron was referred to
Dr. Summerfield for a follow-up visit. ECF 10-5, Clem Aff,
¶ 10; ECF 12 at 9-11.
Summerfield saw plaintiff on July 9, 2014. ECF 10-5, ¶
11. His uncorrected visual acuity in the right eye was 20/200
and 20/20 in his left eye. Id. The corrected vision
in the right eye was 20/25. Id. Dr. Summerfield
noted that Galvan Jiron's right eye was "doing
well." Id; ECF 12 at 37. Moreover, his
"poor visual acuity in his right eye was an expected
temporary result" of the surgery. ECF 10-5, ¶ 11.
Summerfield again examined plaintiff on August 13, 2014. ECF
10-5, ¶ 13; ECF 12 at 38. His uncorrected visual acuity
in his right eye was 20/30 and it was 20/20 in left eye.
Id; ECF 12 at 38.
August 28, 2014,  Galvan Jiron was examined by the prison
optometrist for eyeglasses. His uncorrected visual acuity was
20/40 in his right eye and 20/25 in his left eye. His
corrected visual acuity in both eyes was 20/25. A
prescription for glasses was submitted. ECF 12 at 39-40;
see also ECF 10-5, ¶ 12.
January 15, 2015, and again on April 21, 2015, plaintiff was
seen by the prison optometrist. His corrected vision in both
eyes was 20/20. Id. ¶¶ 15, 16. There was
no notation that he complained of eye pain during the
optometry visits. Id.; ECF 12 at 46-49.
Medical Defendants allege that Galvan Jiron "voiced no
complaints related to his eye between August 13, 2014 and
June 4, 2015, " when he submitted a sick-call slip
complaining of eye pain. ECF 10-5, Clem Aff, ¶ 14.
8, 2015, Galvan Jiron was seen by Physician's Assistant
Kelly Murray for complaints related to eye pain and other
issues. ECF 10-5, ¶ 17. In particular, he complained
that he was having difficulty reading with his new glasses,
indicating that the eyeglasses caused his left eye to strain
while reading. He was referred to the optometrist.
Id. He was seen by the prison optometrist on July
14, 2015. Id. ¶ 19. His corrected vision was
20/25 in both eyes. Id; ECF 12 at 50-52.
around November 6, 2015, Galvan Jiron was transferred to ECI.
The day after plaintiffs arrival at ECI Galvan Jiron was seen
by the prison optometrist for complaints of blurry vision.
His corrected vision was 20/25 in both eyes. His eyeglass
prescription was updated and he was issued new prescription
glasses soon after. Id., ¶ 21; ECF 12 at 53-54.
Jiron submitted a request to see the optometrist on June 26,
2016, because his eyes were burning. ECF 20-1 at 6. He
reported that he had eye surgery two years earlier and said:
"I haven't seen the optometrist at all."
Id. He submitted another request to see the
optometrist on September 4, 2016, because he claimed his
vision was getting worse. Id. at 7. He was seen by
Melissa Richbank, R.N., on September 10, 2016. ECF 20-1. And,
Sheila Kerpelman, N.P. also saw plaintiff on November 4,
2016, for matters unrelated to his eyes. ECF 20-2 at 2-4. On
November 7, 2016, Galvan Jiron was seen by the optometrist