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Velasquez v. Wexford Health Sources, Inc.

United States District Court, D. Maryland

September 19, 2017




         Defendant Wexford Health Sources, Inc. ("Wexford") moves to dismiss Plaintiff Emiliano Velasquez's civil rights complaint or, in the alternative, moves for summary judgment. ECF No. 11. Plaintiff opposes the motion, ECF No. 20, and Wexford has filed a reply, ECF No. 21. No hearing is required. See Loc. R. 105.6 (D. Md. 2016). For the reasons stated below, Defendant's motion is granted in part and denied in part; Plaintiffs Motions for Appointment of Counsel, ECF Nos. 22 and 23, is granted, and his Motion for Leave to File a Surreply, ECF No. 26, is denied.


         Plaintiff Emiliano Velasquez, an inmate confined at Roxbury Correctional Institution ("RCI"), alleges that his Eighth Amendment rights were violated when he was not properly treated for his medical conditions. Compl. 8, ECF No. 1; Supp. 3, ECF No. 8. He complains that the treatment he received was inadequate with regard to a condition in his right eye known as Ptyergium;[1] the facial paralysis he experienced; and the pain he had in his back, leg, hip, and shoulder.[2]

         Eye condition and facial paralysis

         Velasquez claims that, with regard to his Ptyergium, he was "denied all medical services, " including surgery to remove the growth, even though it was causing migraine headaches and severe blurred vision. Compl. 9. He acknowledges that he received an "eye patch" on December 17, 2013; was seen, but not treated, for this condition by medical staff on January 21, 2014 and January 29, 2014; and was seen on June 19, 2015. Id. at 11-14. On June 19, 2015, he was informed by "[t]wo different unqualified medical staff that "nothing was wrong" with him, and he "was issued a pair of eyeglasses, " but he "could only see out of one side" of the glasses. Id. at 11.

         Wexford has submitted verified medical records that establish that he was seen by nurses, optometrists, and ophthalmologists with regard to his right eye on March 5, 2013, March 8, 2013, June 26, 2013, December 30, 2013, January 29, 2014, February 20, 2014, February 28, 2014, March 24, 2014 (twice), May 16, 2014, June 13, 2014, July 19, 2014, August 25, 2014, May 24, 2015, June 19, 2015, July 6, 2015, August 13, 2015, August 25, 2015, September 17, 2015, October 14, 2015. October 22, 2015, December 14, 2015, February 11, 2016, February 22, 2016, April 6, 2016, April 11, 2016, June 22, 2016, and June 29, 2016. Med. Recs. Part 1, at 3, 24, 32, 34, 36, 38, 40, 42, 44, 45, 46, 49, 50, 52, 53, 58, 63, 68, 71, 73, 74, 76, 77, 82-83, 84, 85, 86, 88, 90, ECF No. 11-2. He was prescribed artificial tears, Naphcon A, sunglasses, tinted glasses, and reading glasses; referred to an ophthalmologist on more than one occasion; and referred to internal medicine for a possible CT scan of the brain and a neurological evaluation. Id. at 5, 65-66, 72, 73, 77, 82-83, 84.

         Velasquez also claims that, on December 13, 2013, he awoke with one-half of his face paralyzed. Compl. 12. He alleges that Officer Reel called the medical unit on his behalf, but the nurse, without examining Velasquez, advised that he "would be fine in 7 days." Id. He claims that he was refused treatment on December 15, 18, 20, 23, and 26, 2013 and "advised ... to write, voicing complaints." Id. at 12-13.

         The Medical Records show that Velasquez was seen on December 15, 2013, at which time he was advised to take 600 mg of Ibuprofen, rest, and return if his symptoms worsened. Med. Recs. Part 1, at 17. At that visit, his eyes were examined and it was noted that his right eye did not blink as much as the left; the schlera was red; and he stated the vision in that eye was blurry. Id. He was prescribed an eye patch on December 17, 2013. Id. at 20. On December 20, 2013, Sarah Starr, RN, noted that Velasquez's right eye was red. Id. at 21. When Velasquez was seen on December 23, 2013, he was not wearing the prescribed eye-patch, but he stated that he wore it most of the time and that he used the antibiotic ointment prescribed for his eye. Id. at 23. It was noted that the redness to Velasquez's right eye had improved with no drainage noted. Id. Four oval eye pads were provided. Id.

         He also was seen on December 17, 2013, when he complained of right-sided facial numbness, "loudness" in right ear; headache; and difficulty eating. Id. at 20. Emily Failes, RN noted that Velasquez's face was drooping on the right side, his gait was normal, speech was impaired, but "grips and push pulls [were] strong and equal." Id. Failes consulted with the onsite provider who prescribed no work and feed-in for five days as well as an eye patch, antibiotic ointment, a Medrol[3] dose pack, and for Velasquez to return in three days. Id. At the December 20, 2013 visit, Velasquez presented with an unsymmetrical smile and an inability to raise his right eyebrow, but had "sensation on both sides of his face." Med. Recs. Part 1, at 21. He had equal bilateral grip strength and his gait was normal. Id. He was scheduled to have his facial droop evaluated on December 23, 2013, at which time he reported that the pain in the right side of his neck to his right temple continued. Id. at 21, 23.

         Velasquez was seen on January 22, 2014 by Dr. Morgan, who noted that his right eye closed, but not as tightly as the left, and there was still weakness on the right side of his face. Med. Recs. Part 1, at 27. Morgan prescribed a Medrol dose pack and a one-month follow-up to evaluate the residual effects of his condition. Id. An administrative note dated May 16, 2014 states that Velasquez had been seen by an offsite neurologist for "7th nerve" palsy[4] and the recommendation was to encourage Velasquez to perform facial exercises and to prescribe Neurontin 300 mg at bed time for his pain. Id. at 36.

         Shoulder pain

         Velasquez claims that Dr. Chouday saw him on July 7, 2015 regarding his shoulder and stated that he would put in a consultation request for his shoulder, but the request was not made properly. Compl. 15. In a September 13, 2015 Informal Inmate Complaint Form, ECF No. 20-1, at 2, Velasquez similarly claimed that he was referred to Dr. Manning for the consultation, but Dr. Manning had been told that the consultation was only for his back, not his shoulder, such that he could not address Velasquez's shoulder pain. Admin. Compls. 2, ECF No. 20-1. In response to that complaint, Velasquez was told on September 17, 2015 to discuss his shoulder pain with the provider at his next chronic care visit. Id.

         The record of Velasquez's medical appointments on July 7, 2015 is not in the record. Nor is it clear from the record when Velasquez next had a chronic care appointment. I note, however, that Velasquez was seen by Crystal Jamison, PA on November 18, 2015, and he reported experiencing "constant discomfort" with greater pain in his left shoulder and that his medication was not controlling the pain. Med. Recs. Part 2, at 56. Jamison noted that the x-rays of Velasquez's shoulders were unremarkable, that Velasquez agreed to try conservative pain management measures (i.e., oral medications), and that, if those did not work, he was "willing to try Kenalog injections." Id. Velasquez later was seen by PA Jamison on June 29, 2016 for complaints of bilateral shoulder pain, at which time he reported that the pain medication he was receiving was not controlling the pain and again expressed a willingness to try Kenalog injections. Med. Recs. Part 1, at 63. Jamison made referrals to a physician to address Velasquez's shoulder pain. Id. at 63-64.

         Back condition and leg and hip pain

         On December 9, 2013, Velasquez sustained a "major back injury." Compl. 10. He claims that Dr. Morgan told him that nothing was wrong with him and at, at times his pain medication was not available to him and he had to pay for sick call visits. Id.

         The verified medical records that Wexford provided establish that Velasquez was seen for joint pain on May 7, 2013 and October 5, 2013; and leg pain on May 22, 2013, June 27, 2013 (twice), July 8, 2013, and February 24, 2014. Med. Recs. Part 2, at 2, 5, 7, 9, 11, 12, 17, ECF No. 11-3. He began complaining of back pain on November 26, 2013, and was seen for this problem repeatedly by nurses, physician's assistants, a neurologist, and an orthopedic doctor, between November 26, 2013, and September 30, 2015. Id. at 15-52. He was prescribed various pain medications and x-rays were ordered. Id. at 19-20, 24, 27, 34-35, 38-39, 40-41, 44. The medical providers noted tenderness of his spine, pain when moving, "[paravertebral muscle spasm, "[5] spondylosis at ¶ 5 with "grade 1 anterolisthesis of L5 over S1, "[6] and diagnosed him with sciatica. Id. at 21, 23, 27, 36-37.

         On April 4, 2014, Dr. Lawrence Manning, an orthopedic doctor, saw Velasquez for his back pain. Velasquez claims that this visit was also for his hip pain and that Dr. Manning recommended physical therapy and ordered an MRI for his hip. Compl. 12, 14. But, a review of the medical records clarifies that Dr. Manning saw Velasquez for his back and related pain, which included pain in his right hip. Med. Recs. Part 2, at 23. Dr. Manning recommended physical therapy for his back and stated that Velasquez should be re-evaluated after physical therapy and, if his symptoms did not improve, an MRI of the lumbar spine could be appropriate at that time. Id. at 23.

         Velasquez claims that he had not received physical therapy as of April 26, 2014, although he concedes that he ultimately did receive three physical therapy sessions. Compl. 12. He alleges that his right hip got worse with "cracking" and "popping" that resulted in severe pain. Id. at 14. Velasquez was seen for complaints of hip pain on June 19, 2014 and July 19, 2014; as of June 19, 2014, he was being prescribed Ibuprofen and had a diagnosis of osteoarthritis. Med. Recs. Part 2, at 25; Med. Recs. Part 1, at 38.

         On June 25, 2014, during a chronic care visit, Velasquez was seen by Dr. Purcell Bailey, who noted that he rated his back pain an 8 on a scale of 10; had not been receiving his medications; and had received three physical therapy sessions. Id. at 29. Bailey referred Velasquez back to Dr. Manning for re-evaluation. Id. at 29-30.

         Velasquez received an MRI on June 3, 2015. Id. at 50. It showed degenerative discs at ¶ 4-L5 and L5-S1, as well as a bilateral pars defect[7] at ¶ 5; "very slight anterolisthesis of L5 on SI;" and some spinal stenosis (narrowing of the spinal canal) at ¶ 4-L5 with disc herniation at that level. Id. On September 30, 2015, PA Richard Sampong saw Velasquez, reviewed the MRI report and put in a request for Velasquez to be evaluated and treated by a neurosurgeon. Id. at 52.

         After PA Sampong's request for Velasquez's evaluation and treatment by a neurosurgeon, Velasquez continued to be seen by various care providers, but did not see a neurosurgeon. Med. Recs. Part 2, at 54-66. On October 2, 2015, Velasquez reported again that he had not received his pain medication. Id. at 54. On November 18, 2015, PA Jamison noted that the neurosurgery consultation had been approved the month before but that Velasquez had not been scheduled for an appointment. Id. at 56. Jamison notified scheduling of the issue. Id. On March 22, 2016, when Velasquez was seen by a doctor, the neurosurgery consultation was still pending. Id. at 56, 61. It was noted that he had been sent to University of Maryland twice, once in October of 2015 and once the previous week, but was returned without the examination taking place because he did not have the CD of his MRI images with him. Id. at 61. The records do ...

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