United States District Court, D. Maryland
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE.
Kerstetter, a self-represented litigant formerly incarcerated
at the Eastern Correctional Institution in Westover, Maryland
(“ECI”), filed a civil rights complaint under 42
U.S.C. § 1983, seeking unspecified money damages and
injunctive relief mandating that he be provided appropriate
medical care. Kerstetter alleges that a physician employed by
Wexford Health Source, Inc. (“Wexford”), Paul
Matera, M.D., was deliberately indifferent to his medical
needs in violation of the Eighth Amendment by failing to
treat adequately his ventral hernias and pancreatic mass and
provide appropriate pain relief. ECF No. 1.
court earlier stated that the claims against Defendant
Wexford would be dismissed on March 20, 2017. ECF No. 7.
Defendant Matera seeks to dismiss the case or, alternatively,
moves for summary judgment. ECF No. 14. Kerstetter opposes
the dispositive motion (ECF No. 16), and moves for
appointment of counsel. ECF No. 17. Matera has filed a
Reply. ECF No. 18. After review of the papers
filed, the court finds a hearing on the pending matters
unnecessary. See Local Rule 105.6 (D. Md. 2016).
matters outside the pleadings are presented in
Defendant's dispositive motion, it is considered a motion
for summary judgment. Fed.R.Civ.P. 12(d). Summary judgment is
governed by Fed.R.Civ.P. 56(a) which provides that:
The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.
Supreme Court has clarified that this does not mean that any
factual dispute will defeat the motion:
By its very terms, this standard provides that the mere
existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original).
party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or
denials of [his] pleadings, ' but rather must ‘set
forth specific facts showing that there is a genuine issue
for trial.'” Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 525 (4th
Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P.
56(e)). The court should “view the evidence in the
light most favorable to . . . the nonmovant, and draw all
inferences in her favor without weighing the evidence or
assessing the witness' credibility.” Dennis v.
Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45
(4th Cir. 2002). The court must, however, also abide by the
“affirmative obligation of the trial judge to prevent
factually unsupported claims and defenses from proceeding to
trial.” Bouchat, 346 F.3d at 526 (internal
quotation marks omitted) (quoting Drewitt v. Pratt,
999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
is in his mid-fifties and suffers from diabetes and ventral
hernias. ECF No. 14-4, pp. 1, 11. On May 21, 2015,
he received an intake examination by Physician's
Assistant (“PA”) Peter Stanford. Kerstetter, who
reported three prior hernia repairs, was positive for an
abdominal mass, had a large, tender, reducible incisional
hernia in the central right incision area near a femoral
aortic graph, and wore a hernia belt. Id., pp. 1-4.
August 10, 2015, Kerstetter submitted a sick call slip
complaining of stomach pain due to his incisional hernia and
his job assignment. Id., p.5. Two weeks later, on
August 26, 2015, he was seen by Dr. Matera, who noted his
large recurrent ventral hernia. Id., pp. 6-7.
Kerstetter reported no recent blood in his stool, but
complained of intermittent, crampy abdominal pain in addition
to hernia pain. Id. Kerstetter had a binder
(compression wrap) but had not been using it due to increased
pain. He also stated that although he had a light duty
kitchen job, he recently had been assigned tasks that
involved lifting. Dr. Matera agreed the binder should not be
used and Kerstetter should not perform heavy lifting.
Id., p. 7. Dr. Matera noted that a GI
(gastrointestinal) consult would likely be needed, and a CT
scan and hernia surgery may be necessary. Id., p. 6.
consult was submitted for gastroenterology, surgery, CT scan,
and a teleconference to determine a treatment plan.
Id., p. 8. Because Kerstetter had reported blood in
his stool in the prior month, guaiac stool
tests were performed, one of which was positive.
Kerstetter had crampy abdominal pain without nausea or
vomiting, and his vitals were stable. Id. Matera
wanted to assess whether Kerstetter had a vascular perfusion
component to the bleeding,  i.e., intermittent ischemic bowel
stemming from his previous aortic graft, or hernia-induced
intermittent strangulation causing pain and/or bleeding.
September 10, 2015, Kerstetter was seen by Dr. Matera for a
scheduled provider visit, and asked about the status of his
consult. Dr. Matera indicated it was pending University of
Maryland collegial discussion. Kerstetter reported that he
had lost his job, and agreed with Dr. Matera that he should
only work a light duty job. The hernia was stable, and
Kerstetter was prescribed two 325 mg. Tylenol, twice daily.
Id., pp. 9-10.
October 15, 2015, Ruth Pinkney, P.A. examined Kerstetter and
noted an extremely large and painful ventral hernia and
abdominal tenderness in the right lower quadrant (RLQ).
Although a consult had been previously sent in September,
another was submitted that day. Id., pp. 11-13.
October 16, 2015, Kerstetter was seen by Jason Clem, M.D.,
and a gastroenterologist, Dr. Abdi, at a telemed conference.
Dr. Abdi assessed a lower GI bleed, possibly anorectal and
not diverticulosis, with a lesser suspicion for aortoenteric
fistula and/or ischemia. Id. Dr. Abdi recommended a CT
scan of the abdomen, and a consult for the CT was submitted.
On October 21, 2015, the CT consult was approved.
Id., pp. 14-20.
November 9, 2015, Kerstetter underwent the CT scan, which
revealed a previous ventral hernia repair using mesh; a large
hernia inferior to the mesh to the right of midline
containing small bowel and mesentery; a smaller hernia more
superiorly containing an anterior portion of transverse; a
“somewhat concerning” 3cm low-density mass in the
pancreatic body (malignancy not excluded); a patent (obvious)
aortobifemoral bypass graft; and no other evidence of active
disease or malignancy in the abdomen or pelvis. Id.,
pp. 21-23. Kerstetter reviewed the results with PA Pinkney on
December 4, 2015, and a follow-up referral to GI was
submitted. Id., pp. 24-25.
December 21, 2015, Kerstetter submitted a sick call to obtain
an update as to the progress of his testing. On December 30,
2015, he submitted a sick call to renew medications.
Id., pp. 26-27. That same day, December 30, 2015, he
was seen by Dr. Matera for a chronic care visit.
Id., pp. 28-29. Vital signs, weight, and lab results
were normal, and Kerstetter reported Tylenol was only
somewhat effective, so he was taking his cell mate's
Indocin and wearing his binder. Dr. Matera
prescribed Indomethacin in addition to his Tylenol.
Id. On January 14, 2016, Kerstetter submitted a sick
call slip to renew medications. Id., p. 30. On
January 20, 2016, during a scheduled provider visit with PA
Bruce Ford, Kerstetter asked about the follow-up on his GI
consult. Ford sent an email to see if the CT scan results had
been sent to Dr. Abdi, and what recommendations were
available. Id., pp. 31-32. The next day, January 21,
2016, Jason Clem, M.D. entered a note that after consultation
regarding the CT scan results. Dr. Abdi wanted Kerstetter to
receive an endoscopic ultrasound with biopsy to identity the
pancreatic mass. A consult was placed for the endoscopic
ultrasound with biopsy. Id., pp. 33-34. On January
27, 2016, endoscopic biopsy was approved. Id., p.
36. The biopsy was scheduled to be done in March by Dr.
Darwin at the University of Maryland. Id.
follow-up visit, Kerstetter stated Tylenol was not sufficient
for his pain, which was worsening, and his abdominal binding
was no longer holding its elasticity. It was recommended that
abdominal measurements be taken at the next chronic care
encounter to order a replacement binder, and the Tylenol
prescription was increased to extra strength 500mg.
Id., pp. 37-38.
a March 20, 2016, sick call visit, Kerstetter could not push
his lower right quadrant hernia back in, and reported pain at
the level of 10/10. Dr. Clem ordered Kerstetter be given 200
mg. of Motrin and returned to his housing unit. If pain
persisted, further evaluation would be provided.
Id., pp. 39-41. That same day, March 20, 2016,
Kerstetter's hernia was evaluated by Ben Oteyza, M.D.,
and he was sent by ambulance to the Peninsula Regional
Medical Center (“PRMC”) emergency room to
evaluate and treat the irreducible hernia. Id., pp.
was admitted to PRMC for hernia surgery. His discharge
diagnosis was: 1) incarcerated hernia status post
exploratory laparotomy with small bowel resection repair of
incisional hematoma with biological mesh; 2) diabetes; 3)
hospital acquired pneumonia; 4) probable chronic obstructive
pulmonary disease; and 5) a stable pancreatic mass.
Id., pp. 40-42. Five days of Levaquin was
prescribed. Id., pp. 43-44.
returning to ECI on April 4, 2016, Kerstetter was seen by Dr.
Clem and admitted to the prison infirmary. His Levaquin
prescription was continued and a consult was placed for
follow-up. Id., p. 45. Skilled nursing care was
provided in ...