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Moses v. Stewart

United States District Court, D. Maryland

September 28, 2017

JOSHUA MOSES, Prisoner Identification No. 55716-066, Plaintiff,
v.
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.

          MEMORANDUM OPINION

          THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.

         In 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.

         The 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.

         BACKGROUND

         Much of 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.

         I. Initial Allegations

         As of 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.

         On 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.

         Moses 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.

         As of 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.

         II. Post-Motion Allegations

         Following 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.

         Moses 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 Temple.

         On 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 rescheduled.

         III. ...


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