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Thomas v. Bishop

United States District Court, D. Maryland

January 23, 2018

LAMONT THOMAS, #350588 Plaintiff
v.
FRANK BISHOP, WARDEN, NBCI, KRISTA BILAK, P.A.[1]ALI YAHYA, M.D. WEXFORD HEALTH SOURCES, INC. Defendants

          MEMORANDUM OPINION

          Paula Xinis United States District Judge

         Lamont Thomas, presently confined at North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland, files this civil rights action under 42 U.S.C. § 1983 against Frank Bishop, Warden of North Branch Correctional Institution (NCBI), contractual medical provider Wexford Health Sources, Inc. (“Wexford”), and Krista Bilak and Ali Yahya, employees of Wexford. Thomas seeks injunctive relief and alleges that Defendants are acting with deliberate indifference in violation of the Eighth Amendment by failing to treat adequately his fungal infection, swollen knuckles, and back pain. ECF No. 1.

         Defendant Wexford moves to dismiss the claims, arguing that it is not subject to suit under § 1983. Medical Defendants Bilak and Yahya move to dismiss for lack of subject matter jurisdiction and, alternatively, for summary judgment on the merits of Thomas' claims. ECF No. 8. Warden Bishop moves for dismissal or summary judgment as to him, asserting that he is not responsible for Thomas' medical care. ECF No. 15. Thomas opposes the dispositive motions (ECF No. 17), and seeks reconsideration of the court's prior decision to deny his motion for appointment of counsel. ECF No. 17, ECF No. 21. After review of the papers filed, the Court finds a hearing on the pending matters unnecessary. See Local Rule 105.6 (D. Md. 2016). As set forth herein, Defendants' dispositive motions are GRANTED and Thomas's motion for reconsideration of appointment of counsel is DENIED.

         I. Defendants' Motions

         A. Standard of Review

         Because matters outside the pleadings are presented in Defendants' dispositive motions, they are considered motions for summary judgment. Fed.R.Civ.P. 12(d). Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment shall be granted 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. Tthis 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). “The 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 Aview 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)).

         B. Background

         Thomas' medical records show the following: On June 30, 2016, Thomas submitted a sick call request complaining of lower back pain for two days and difficulty turning over in his bunk. Thomas noted the problem recurred “at least (3) times a month” and was not helped with Motrin. ECF No. 8-2, p. 3.[2] Registered Nurse Amy Booth examined Thomas on July 3, 2016, noted that he was moving slowly, but could get “up and down from exam table with ease, ” and referred him to a medical care provider. Id., p. 6.

         On August 2, 2016, Registered Nurse Practitioner Krista Bilak examined Thomas. Thomas at that visit complained of muscle spasms which began over a month ago after he was injured playing basketball. Bilak noted the cause of his back pain to be the spasms and prescribed a muscle relaxant and an NSAID (nonsteroidal anti-inflammatory drug) for 30 days. Bilak also prescribed back exercises and told Thomas to follow up with medical in a month. Id., pp. 8-9.

         On August 18, 2016, Thomas wrote a sick call request complaining of a cracked toenail and dry, peeling skin on his feet. Id., p. 4. On August 21, 2016, Registered Nurse Tammy Buser noted Thomas's toenails were cracked and appeared to be infected with fungus. Thomas was given antifungal cream. Id., pp. 10-11.

         On August 23, 2016, Thomas submitted a sick call request complaining that he had patches of hair that were not growing after a visit to the barbershop in early August, which he believed was caused because the clippers were used on other prisoners with “skin conditions.” Id., p. 5. On August 25, 2016, Thomas was seen by Registered Nurse Marilyn Evans, who noted that he walked with a steady gate but that his left toenail was dark, crusted and falling off. Id., pp. 12-13. Thomas was told to apply a topical antifungal ointment daily, to keep his feet clean and dry, and to wear shower shoes. Id. Thomas also was seen by Registered Nurse Practitioner Holly Pierce on August 29, 2016, who examined him and noted only his severe, thickened toenails. Id., pp. 14-15. Pierce prescribed two additional antifungal medications and ordered lab tests (a complete metabolic panel). Id., p. 15. On September 1, 2016, Bilak saw Nurse Thomas for a follow up appointment. Bilak noted that Thomas' “back pain has been resolved, ” and that no further treatment was necessary. Id., pp. 16-17.

         On September 21, 2016, after punching a fellow prisoner in the head, Thomas presented to the prison medical department with swelling on the top of his right hand, and he complained of aching, throbbing pain. Id., p. 18. Nurse Pierce prescribed Ibuprofen and Tylenol with codeine to alleviate his pain, and told Thomas to check his fingertips occasionally to ensure that they were normal in color. Pierce further instructed Thomas to contact the medical department immediately if his fingers showed any signs of discoloration (graying or turning blue). Pierce ordered also ordered an x-ray; the x-ray showed no evidence of acute fracture, dislocation or subluxation, with normal alignment. Id., p. 44.

         On September 23, 2016, Thomas requested more pain medication for his hand and back. Registered Nurse Dawn Hawk noted Thomas was already on pain medications and that he was able to turn and bend at his waist without difficulty, despite the fact that his hands were cuffed behind his back. Id., p. 20. Thomas continued to request more pain medication at a follow-up visit on October 1, 2016, when he received the news that his hand x-ray showed perfect alignment with no evidence of fracture or malformation. Id., p. 22. Hawk found mild swelling to Thomas's third and fourth fingers. She also noted Thomas' gait to be normal. Hawk denied Thomas' request for pain medications, specifically Tylenol with codeine. Id.

         Thomas's requests for Tylenol with codeine continued, even though Thomas' had Naproxen and Ibuprofen at his disposal. Id., p. 24. On October 12, 2016, Thomas told Hawk that he was experiencing back pain again and wanted pain medication because it had helped him previously. Id., p. 25. Hawk emailed a provider about ...


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