United States District Court, D. Maryland
KIM L. HARGETT. SR., Plaintiff
L. ARMSTEAD, et al., Defendants
Frederick Motz, United States District Judge.
are motions to dismiss, or, in the alternative, for summary
judgment filed by defendants Commissioner of Correction
Dayena Corcoran, Warden Laura Armstead, and Chantell
Sessions, ("correctional defendants") (ECF 11) and
by Wexford Health Sources, Inc., ("Wexford",,
Andrew Moultrie, M.D., and Oladipo Olaleye,
R.N.P. ("medical defendants".. ECF 14.
Plaintiff has filed an opposition (ECF 22) to which
defendants have replied. ECF 23 & 24. The court finds a
hearing in this matter unnecessary. See Local Rule
105.6 (D. Md. 2016). For the reasons that follow,
defendants' motions, construed as motions for summary
judgment, shall be granted.
Kim L. Hargett, Sr., a state inmate confined at the Patuxent
Institution in Jessup, Maryland, filed the instant verified
complaint on May 31, 2016. ECF 1, p. 1. He alleged that in
June of 2015, he began to feel pain in his right calf and
knee. ECF 1, p. 2. He submitted a sick call slip and was seen
by Oladipo Olaleye, R.N.P. who prescribed Motrin for pain
relief. Id. He was again seen by Oleleye in July of
2015. At that time he was advised that there was nothing
Olaleye could do for him and he should talk to Dr. Moultrie.
Id. Moultrie asked plaintiff who sent him to his
office and conferred with Olaleye, who then advised plaintiff
there was nothing they could do. Id.
wrote an administrative remedy complaint ("ARP") in
August of 2015, concerning the pain in his right knee and
calf, but the ARP was denied. ECF 1, p. 3.
evaluated plaintiff in September of 2015 during a chronic
care visit. Plaintiff explained that he was in excruciating
pain and Moultrie suggested plaintiff undergo an x-ray.
Id. On September 24, 2015, plaintiff was called to
see Moultrie. Plaintiff inquired about the x-ray to which
Moultrie did not respond. Plaintiff states that he let
Moultrie know he was upset and still needed an x-ray.
Moultrie then got upset and plaintiff was placed on
administrative segregation. Id., p. 3. Plaintiff
states that he was subsequently found not-guilty at the
ensuing adjustment hearing. Id.
November of 2015, plaintiff received the x-ray which showed a
bullet lodged in the back of plaintiff s right knee.
Id. Plaintiff was seen by a general surgeon in
December of 2015 who suggested that plaintiff see a
neurosurgeon. Id. Plaintiff saw the neurosurgeon on
January 19, 2016. The neurosurgeon suggested plaintiff
undergo a CT scan to determine the bullet's location to
develop a plan to remove it. Id. As of the filing of
plaintiff s complaint he had not received the CT scan.
March 4, 2016, plaintiff was called to the chronic care
clinic where Moultrie advised he would receive a Telemedicine
appointment Id. At the time of the filing of the
complaint that had not occurred. Plaintiff reported that he
was in excruciating pain. !d.
sought compensatory and punitive damages as well as
injunctive relief directing the removal of the bullet
fragment from his knee. As indicated below, the bullet has
been surgically removed and as such, plaintiffs request for
injunctive relief is moot.
defendants offer plaintiffs pertinent medical records as well
as an affidavit from Dr. Temesgen in support of their motion.
ECF 14-4 (medical records); ECF 14-5 (Temesgen affidavit).
undisputed records demonstrate that plaintiff has a medical
history of chronic pain syndrome, muscle spasm and
osteoarthritis of the knees. ECF 4-4.
was seen on June 1, 2015, by Almon Baptiste, LPN, for a
chronic care visit. Id., p. 2. Plaintiff denied any
chronic pain since his last encounter. Id. That same
day he was seen by Andrew Moultrie, M.D. Id., pp.
3-4. Moultrie noted that plaintiff suffered from chronic left
shoulder pain that was helped with Neurontin. Id.
Examination showed left shoulder pain with and without
palpation. Mild tenderness of the cervical spine was also
noted. Id. Plaintiffs non-formulary prescription for
Neurontin was renewed. Id. p. 5.
24, 2015, plaintiff was seen for an urgent provider visit due
to a cut on his hand. Id., p. 6. The cut had minimal
bleeding and plaintiff requested a band -aid. He otherwise
denied any pain. Id.
Olaleye, R.N.P., evaluated plaintiff on July 29, 205,, for a
provider sick call. Id., p. 7. At that time
plaintiff reported pain to the right leg and calf. He stated
that the pain began six months earlier and was increasing in
intensity. Id. He also reported more pain at rest
and in the calf area. No swelling, warmth or redness were
observed. It was noted that he had good pedal
pulses to dorsalis pedis and posterior tibial and popliteal
pulse. Plaintiff was advised that the pain was possibly nerve
pain. Plaintiff disagreed, advising he had circulation
problems and wanted to be treated. It was noted that
plaintiff had been non-compliant with his Neurontin
prescription and was advised to take the medication as
prescribed. No skeletal tenderness or joint deformities were
observed. Plaintiffs extremities appeared normal and no edema
or cyanosis was noted. Id.
was again seen by Olaleye on August 8, 2015, at sick call.
Id., pp. 9-11. Plaintiff continued to complain of
pain in the left calf that had started two weeks earlier and
offered that he thought he had peripheral artery disease
("PAD"). Plaintiff reported that the pain was worse
at rest. No swelling, redness, or skin discoloration was
observed. Good pedal pulses were noted. There were no
signs of arterial or venous disorders. Plaintiff was advised
to take Neurontin consistently every 12 hours. Plaintiff
refused and it was noted that his records indicated he had
been noncompliant with his pain medication in the past.
Olaleye discussed plaintiffs condition with the onsite
August 28, 2015, plaintiff was seen by Khadijat Adebayi, R.N.
for complaints of chest paint. Id., pp. 12-13.
Plaintiff reported throbbing pain in the chest diagonally
from the mid-upper shoulder to the sternum. The pain was
described as non-radiating and 5 on a 10 point scale. He was
observed in no acute distress. His chest was clear to
auscultation and his heart rate was regular and sounded
normal. No edema was observed. Dr. Singh was notified and it
was determined that emergency services were not necessary.
was evaluated by Almon Baptiste, L.P.N. for a nurse chronic
care visit on September 1, 2015. He reported no symptoms
relative to his chronic pain or medication. Id., p.
14. On September 3, 2015, plaintiffs prescription for
Neurontin was renewed. Id., p. 15.
evaluated plaintiff on September 24, 2015, for follow-up of
right knee, hip and ankle pain. Id. pp. 16-17.
Plaintiff reported that his prescribed medications did not
work; however, the Neurontin was helping his lower left
extremity pain. Id. Plaintiffs prescription was
changed from an NSAID to Mobic and a muscle relaxer was also
prescribed. Id. Moultrie placed an order for x-rays
of the knee and hip. Id.
x-rays were delivered to medical staff on November 4, 2015.
Id., p. 18. Mild degenerative changes were noted
bilaterally in the hip joints. Bullet fragments were present
on the posterior aspect of the right knee. Id. No
acute fractures, dislocations or subluxations were
November 10, 2015, plaintiff was seen by Olaleye at provider
sick call. Id., pp. 19-20. He reported pain in the
right lower leg of 7/10 and advised that he did not want any
more medication but wanted the bullet removed. Id.
Olaleye advised plaintiff that this condition would be
discussed with his provider to determine a plan of action.
Olaleye recommended plaintiff be referred to the onsite
surgeon for evaluation and the consultation request was
placed. Id., p. 21.
was again seen by Olaleye on November 17, 2015. Id.,
pp. 22-23. Plaintiff inquired as to the plan for removing the
bullet fragments and reported that he did not want any more
pain medication. Id. The LPN/RN
indicated plaintiff might be acting for secondary gain as he
had been observed running quickly up two staircases going
down, but limping back up. Id. Plaintiff was advised
that the consultation request had been placed for a surgery
evaluation and he needed to wait for the evaluation before
any further plans would be made. Id.
November 25, 2015, plaintiff failed to appear of his morning
medication. Id., p. 24. From November 25, 2055 to
April 27, 2016, plaintiff failed to appear for his morning
medication on 44 occasions. ECF 14-4, pp, 24, 25, 27, 28, 30,
35, 38-41, 44, 49-55, 61, 62, 67, 68, 79-82, 86-93. He also
failed to appear for evening medications on a number of
occasions. Id., pp. 25, 45.
was seen on November 30, 205,, by Patience Muson, L.P.N. for
a chronic care visit. Id., p. 29. He reported no
chronic pain symptoms or complications with medication..
following day plaintiff was seen by Moultrie in the chronic
care clinic for pain in the left foot and right knee.
/d., pp. 31-34. Plaintiff reported that the
mediation helped the left foot pain but not the right knee
pain. He complained of cramping in the right leg and stated
that he wanted the bullet fragments behind the right knee
removed if possible. Id. Plaintiff was advised that
he was being referred to the general surgeon for evaluation
as to whether than extraction was indicated. Id.
Plaintiffs NSAID prescription was changed to Lodine and his
Robaxin prescription was increased to help with ...