United States District Court, D. Maryland
W. GRIMM UNITED STATES DISTRICT JUDGE.
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.
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; the facial paralysis he
experienced; and the pain he had in his back, leg, hip, and
condition and facial paralysis
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.
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.
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.
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.
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 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.
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 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.
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.
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.
condition and leg and hip pain
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.
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,
" spondylosis at ¶ 5 with "grade 1
anterolisthesis of L5 over S1, " and diagnosed him with
sciatica. Id. at 21, 23, 27, 36-37.
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.
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,
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.
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 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.
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