United States District Court, D. Maryland
JOSHUA MOSES, Prisoner Identification No. 55716-066, Plaintiff,
TIMOTHY STEWART, Warden, S. MOHAMED MOUBAREK, Clinical Director, MARIA ARVIZA, Associate Warden, STEPHANY MCGANN, Physician, JAMIE HAMILTON-RUMER, Health Services Administrator, ALLISON FOOTE, Assistant Health Services Administrator, TOVV, Duty Nurse, HALL, Duty Nurse, VARIMETER, Duty Nurse, BOCH, Duty Nurse, SWICK, Duty Nurse, FAZENBAKER, Manager, M. MUIR, Correctional Counselor, HERSHENBERGER, Psychologist, and MRS. VORHEES, Defendants.
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.
2009, Plaintiff Joshua Moses was shot multiple times in his
torso, leaving him with abdominal injuries that required
multiple surgeries to repair. In May 2015, Moses was
convicted of a federal crime and was designated to serve his
sentence at the Federal Correctional Institution in
Cumberland, Maryland ("FCI-Cumberland"). Soon after
his arrival at FCI-Cumbellan, Moses began to ask the prison
medical services for an outside surgical consultation for
what he contends are continuing complications from his
surgeries, specifically a metal protrusion and fluid
discharge from the surgical site. To date, no such
consultation has been approved. On December 18, 2015, Moses
filed suit in this Court pursuant to Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), alleging that
in not providing him a medically necessary surgical
consultation, Defendants violated his right under the Eighth
Amendment to the United States Constitution to be free from
cruel and unusual punishment. With his Complaint, Moses filed
a Motion for a Preliminary Injunction asking this Court to
order that he be referred for a surgical consultation and be
given a medical transfer. Moses later amended his Complaint
several times to include new allegations of retaliation in
response to his filing of this lawsuit, to add a claim for
damages, and to add a claim under the Privacy Act, 5 U.S.C.
§ 552a (2012), against Defendant Vorhees.
Court denied Moses's Motion for a Preliminary Injunction,
concluding that based on the allegations he had made of
events prior to the filing of that Motion, he was not likely
to succeed on the merits of his claim. However, the Court
noted that Moses's allegations, including those
describing events occurring after the filing of his
preliminary injunction motion, stated a plausible claim for
relief. The Court thus ordered Defendants to file an Answer
to Mosesss Complain.. In response, Defendants have filed a
Motion to Dismiss, or, in the Alternative, for Summary
Judgment. Moses, now represented by counsel, has opposed the
Motion. The motion is ripe for disposition, and no hearing is
necessary. See D. Md. Local R. 105.6 (2016). For the
reasons set forth below, the Motion is GRANTED IN PART and
DENIED IN PART.
the prior factual background of this case is set forth in the
Court's September 9, 2016 Memorandum Opinion denying the
Motion for a Preliminary Injunction. Moses v.
Stewart, No. TDC-15-3875, 2016 WL 4761929 at *1-5 (D.
Md. Sept. 9, 2016). The Court therefore incorporates by
reference that factual background, summarizes only those
portions of that history most relevant to the pending Motion,
and describes in detail only those new facts offered with the
Motion that are necessary for its resolution.
August 2015, Moses had a piece of metal wire and a portion of
flesh protruding from his abdomen at the site of his prior
surgery. The protrusion was leaking clear fluid and had a bad
odor, and Moses complained of abdominal pain, vomiting, and
diarrhea. Although Moses requested a consultation with an
outside specialist, Defendant Dr. Mohamed Moubarek, the
FCI-Cumberland Clinical Director, did not detect any
infection or tenderness and thus elected just to cover the
area with a dressing. On October 6, 2015, Dr. Moubarek spoke
with Dr. Abhijit Pathak, the surgeon who had operated on
Moses in 2010 at Temple University Hospital
("Temple".. As a result of those discussions, Moses
underwent a CT scan, which did not identify any
abnormalities. As of November 18, 2015, however, Mosesss
abdomen had a fleshy protrusion "sticking out of his
stomach that looks like a tongue." Compl. ¶ 49, ECF
NO.1. At the same time, green slime and a foul odor began to
emanate from the area of the protrusion, prompting Defendant
Swick, a duty nurse, to urge Defendant Dr. Stephany McGann to
examine the wound. Dr. McGann asked Swick what she was
documenting about any leak and odor. When Swick showed her
the area of the protrusion, Dr. McGann refused to include
that information in her report and simply instructed Swick to
cover the area with a bandage.
November 24, 2015, at Mosesss daily dressing change, Moses
agreed to have photographs taken of his abdomen to be sent to
surgeons at Temple. Before taking the photographs, however,
Dr. Moubarek allegedly used a Q-tip to push forcefully the
protruding flesh back into Mosesss abdomen, causing him
extreme pain. Dr. Moubarek then allegedly passed the Q-tip to
Foote, who did the same thing.
also recounted a number of incidents during the fall of 2015
which he deemed retaliatory for filing complaints about the
lack of a consultation with an outside specialist. In
September 2015, Dr. Moubarek approached him, asked why he had
filed complaints, and later told Moses to "take us to
Court and we will win." Compl. ¶ 36. Moses asserts
that Dr. Moubarek then ordered that his wound remained
undressed, in retaliation for the grievance Moses had filed.
On October 29, 2015, Moses was called in to meet with
Defendant Hershberge, a prison psychologist, who asked him
about one of his complaints and joked that he "may have
to harass" Moses, which Moses interpreted as retaliation
for pursuing an appeal. Compl. ¶ 46.
December 2015, Moses was in physical pain and reported that
the area of the wire and skin protrusion leaked constantly
and emitted an awful smell. He continued to seek a
consultation with an outside specialist.
the filing of his Motion for a Preliminary Injunction, Moses
submitted the following additional allegations between
January 23, 2016 and June 6, 2016. He asserted that on
November 20, 2015, Dr. McGann referred Moses for a surgical
consultation to evaluate Moses for possible treatment. That
referral, however, was never acted upon. Moses alleged that
Defendant Hamilton-Rumr told Jim that Dr. McGannss request
for a surgical consultation was pending before the prison
Utilization Review Committee. On May 19, 2016, however, Dr.
McGann informed Moses that Dr. Moubarek denied the request.
also asserted that on January 20, 2016, Dr. Moubarek sought
to take additional photographs of his abdomen, but that Moses
refused permission because of the prior incident involving
the Q-tip. Moses claims that Dr. Moubarek acknowledged that
the earlier photographs were never sent to the surgeons at
February 19, 2016, Moses was moved to a county prison in
Philadelphia pursuant to a writ of habeas corpus to
provide testimony as a victim in a criminal matter. On March
4, 2016, a representative of Temple visited and informed him
that Temple had received the photograph,, but not the CT scan
images. On March 16, 2016, Dr. Mohammed Hague, a doctor at
the county prison, examined him, concluded that "no
prison doctor is qualified to treat [his] condition or pain,
" and referred him for a consultation at Temple on April
8, 2016. May 5, 2016 Mot. Supp. Compl. Ex. 3 at 12, ECF No.
40-3. Moses, however, was not sent to Temple because he was
required to be at a state court proceeding that day and was
returned to FCI-Cumberland before the consultation could be