United States District Court, D. Maryland
Xinis United States District Judge
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.
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.
Standard of Review
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)).
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.
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.
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.
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.
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.
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.
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.
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 ...