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Alvarez v. Maryland Deparment of Corrections

United States District Court, D. Maryland

March 8, 2018

BRUMAN STALIN ALVAREZ, #257-455 Plaintiff
v.
MARYLAND DEPARMENT OF CORRECTIONS, et al.[1] DAVID BLUMBERG, Maryland Commissioner of Corrections, in his official capacities, GREGG L. HERSHBERGER, in his individual and official capacities or actions under color of law as Commissioner of Correction for the Northern Region, SCOTT OAKLEY, in his individual and and official capacities for actions under color of law as Executive Director of the Maryland Department of Corrections, ROBIN WOOLFORD, in his individual and official capacities for actions under color law as Deputy Director of Division of Corrections, RICHARD J. GRAHAM, in his individual and official capacities for actions under color of law as Warden of Western Correctional Institution, Cumberland, DENISE GELSINGER, in her individual and official capacities for actions under color of law as Assistant Warden at Western Correctional Institution, SHARON BAUCOM, M.D., in her individual and official capacities for actions under color of law MD DOC Director of Clinical Services, SERGEANT L. LASHER, CO III, in her individual and official capacities for a actions under color of law as Correctional Officer, Western Correctional Institution, Cumberland, WEXFORD HEALTH SOURCES, INC., ASRESAHEGN GETACHEW, M.D., in his individual and official capacities for actions under color of law as Medical Director, Wexford Health Sources, Inc., ROBUSTIANO BARRERA, M.D., In his individual and official capacities for actions under color of law as Plaintiff's treating physician Western Correctional Institution, Cumberland, JANICE GILMORE, Medical Supervisor, in her individual and official capacities for actions under color of law as Medical Staff, Western Correctional Institution, Cumberland, DAYENA CORCORAN, Commissioner of Corrections, Defendants

          MEMORANDUM OPINION

          Paula Xinis, United States District Judge

         Bruman Stalin Alvarez is an inmate at Western Correctional Institution (WCI) and in the Custody of the Maryland Department of Public Safety and Correctional Services (DPSCS). Pending before the Court is Alvarez's Complaint pursuant to 42 U.S.C. § 1983, which raises Eighth Amendment claims arising from Alvarez' asserted lack of adequate medical care, as well as violations of the Equal Protection clause of the Fourteenth Amendment, Title II of the Americans with Disabilities Act (“ADA”) as amended, and § 504 of the Rehabilitation Act of 1973. Alvarez also brings state common law claims for medical malpractice.

         Defendants Wexford Health Sources, Inc., Asresahegn Getachew, M.D., Robustiano Barrera, M.D., and Janice Gilmore[2] (collectively, “the Medical Defendants”) have filed a Motion to Dismiss, or Alternatively, a Motion for Summary Judgment. ECF No. 17. The Maryland Division of Correction (DOC), David Blumberg, Chairman of the Maryland Parole Commission, Gregg L. Hershberger, former Commissioner of Correction for the Northern Region, Robin Woolford, Deputy Director of the Inmate Grievance Office (IGO), Richard J. Graham, Warden at the Western Correctional Institution (WCI), Denise Gelsinger, former Assistant Warden of WCI, Sgt. Lisa L. Lasher, WCI, and Sharon Baucom, M.D., Director of Clinical Services for the Maryland DOC (collectively, “the State Defendants”) also have filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. ECF No. 24. Alvarez has filed an opposition (ECF No. 30) to which the Medical Defendants replied. ECF No 33. Alvarez filed a Surreply. ECF No. 34.

         Also under review are Alvarez's Motion for Leave to File an Amended Complaint (ECF No. 31), Commissioner of Correction Dayena Corcoran's Motion to join the State Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 37), and Alvarez's recently filed Motion for a Preliminary Injunction and Temporary Restraining Order. ECF No. 39. In his Motion for Leave to File an Amended Complaint, Alvarez asks to substitute Dayena Corcoran, Commissioner of Correction, in place of David Blumberg. ECF No. 31; see also Alvarez Opp. ECF No. 30 n.1 (stating Alvarez filed a Motion to Voluntarily Dismiss Blumberg, an apparent reference to the intent expressed in the Motion for Leave to File an Amended Complaint). The Court grants his request. Dayena Corcoran is added as a defendant and David Blumberg will be dismissed from this case. Corcoran's Motion to Join the State Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 37), is granted. Alvarez's Motion for a Preliminary Injunction and Temporary Restraining Order will is denied for the reasons discussed in this Memorandum Opinion.

         The matter is briefed and the Court finds a hearing unnecessary at this time. Local Rule 105.6 (D. Md. 2016). For the reasons stated below, Defendants' Motions to Dismiss or in the Alternative Summary Judgement are GRANTED in part and DENIED in part.

         BACKGROUND

         At the heart of Alvarez's forty-seven page Complaint is his longstanding osteoarthritis in his right knee arising from Medical Defendants' alleged failure to treat his meniscus tear. Compl. ECF No. 1 at 2. Accordingly, the Court considers Alvarez's medical records documenting his treatment during his incarceration and to which Alvarez raises no objection.

         On March 27, 2014, Alvarez, an inmate at Jessup Correctional Institution (JCI) at that time, underwent outpatient surgery on his right knee at Bon Secours Hospital. Compl. ECF No. 1 at 8 ¶ 4, Med. Def. Ex. ECF No. 17-2 at 19, 27. Alvarez was seen at JCI by John Moss, PA, on April 2, 2014, for post-surgical follow-up. Moss noted that Alvarez was “doing well with no pain” but had some continued back pain. Med. Def. Ex. ECF No. 17-2 at 10.

         Alvarez was then seen in the orthopedic clinic at Bon Secours Hospital on May 20, 2014 and July 29, 2014. Med. Def. Ex ECF No. 17-2 at 13, 15; Pl. Ex. ECF No. 1-3. During the July 29, 2014, medical visit, Alvarez was diagnosed with arthritis in his right knee. ECF No. 17-2 at 13, 15; Pl. Ex. ECF No. 1-3 Alvarez maintains that Dr. Ashok Krishnaswamy[3] diagnosed him post-surgically as physically disabled and recommended an MRI and a cane for him. Compl. ECF No. 1 at 8 ¶ 4; Pl. Ex. ECF Nos. 1-3 (medical records). Krishnaswamy also recommended placing Alvarez in a cell with handrails. Compl. ECF No. 1 at 8 ¶ 4; Pl. Ex. ECF No. 1-3 (medical records). Alvarez claims that post-surgical physical therapy orders were not followed, and approximately seven weeks after the surgery, he “continued to complain” of his right knee “popping out of place, locking, and giving out.” Compl. ECF No. 1 at 8 ¶ 4.

         On August 1, 2014, John Moss, PA, saw Alvarez, noting that the orthopedist at Bon Secours recommended physical therapy for Alvarez's right knee. Med Def. Ex. ECF No. 17-2 at 21. Moss gave Alvarez an elastic knee brace and a submitted a consultation for physical therapy. Med Def. Ex. ECF No. 17-2 at 15, 16, 21. On August 12, 2014, Moss wrote an addendum to the medical record which indicated that, upon Alvarez's upon return to JCI from the Orthopedic Clinic on July 29, 2014, he was told that his housing in did not include any cells with rails. Med Def. Ex. ECF No. 17-2 at 17. Moss told Alvarez that he would be placed in housing with handrails after he finished his time in segregation. Med Def. Ex. ECF No. 17-2 at 17.

         On September 15, 2014, Dr. Robustiano Barerra noted in connection with Alvarez's transfer from JCI to WCI the following regarding Alvarez's medical status:

He comes in walking with a can[e]. Gave a history of surgery to the left knee miniscus [sic]. He is wearing an unloader brace on the left leg. He complains of right knee pain as well and was about to have an MRI of the right knee but he was moved to this institution prior to the MRI being done. Patient will be rescheduled for the MRI. The right knee gives out and causes the patient to fall. He cannot tolerate NSAID because of his history of GI bleeding.

Med. Def. Ex. ECF No. 17-2 at 23.

         Alvarez states that an October 10, 2014, an MRI of his right knee revealed a “bucket-handle tear to the multidirectional medial and radial meniscus with degenerative chrondromalasia of the right knee.” Compl. ECF No. 1 at 8 ¶ 5; see also Med Def. Ex. ECF No. 17-2 at 25. Alvarez asserts that Dr. Krishaswamy, Dr. Roy J. Carls, [4] and Dr. Barrera “strongly recommended” that arthroscopic surgery be performed “soon.” Compl. ECF No. 1 at 8 ¶ 5; Pl. Ex. ECF Nos. 1-3 at 3 (medical record). Alvarez claims that since September of 2014, Dr.

         Krisnaswamy and Dr. Carls have recommended meniscus repair surgery for him on four occasions based on the MRI. Compl. ECF No. 1 at 13 ¶ 48, at 14-15 ¶¶ 51- 54.

         On October 16, 2014, Dr. Barrera met with Alvarez to advise that Alvarez would receive a medical consultation with Dr. Carls, although Alvarez' medical notes for the same date indicates that Alvarez was referred to Dr. Krishnaswamy. Med Def. Ex. ECF No. 17-2 at 25, 27. Barrera also noted that he would review Alvarez' medical chart to evaluate Alverez's request for a cell with handicap accommodations. Med Def. Ex. ECF No. 17-2 at 25. On October 22, 2014, Barrera approved Alvarez for a grab bar near the commode because his knee “is very unstable.” Med Def. Ex. ECF No. 17-2 at 28.

         On November 20, 2014, Barrera made the following observations as to Alverez's ongoing knee problems:

Patient had an orthroscopic [sic] surgery at BSH [Bon Secours Hospital] and was unsuccessful. A repeat MRI was done on 10-10-14 at WMHS [Western Maryland Health System] and showed [h]orizontal tear, non-displaced, posterior horn, medial miniscus [sic], and a radial tear lateral miniscus [sic] with some degenerative changes. Patient was advised of the findings and he reports that his knee (right) still pops out of place and gives him severe pain. Knee brace is not helping. He saw Dr. [K]rishnaswamy and advised him that he needs another surgery. Patient prefers to be done by WMHS doctor. I will place a consult base [sic] on this.

Med Def. Ex. ECF No. 17-2 at 29.

         Despite Barrera's clear recommendation that a second surgery be performed on Alvarez' knee, Alvarez avers that in April of 2015, Dr. Getechew denied him arthroscopic surgery “because it cost too much money” and recommended physical therapy and a knee brace instead.

         Compl. ECF No. 1 at 15 ¶ 53. Notably, the Medical Defendants marshal no evidence to the contrary. Alvarez also asserts that Dr. Getachew told him on August 25, 2015 that “surgeons like to chop-up people like me and charge lots of money; he recommended PT [physical therapy] and a custom made brace.” Compl. ECF No. 1 at 15 ¶ 55. Alvarez's medical records document Alvarez' telemedicine consultation with Dr. Getachew as follows:

Patient was presented to Dr. Getachew for ruptured miniscus [sic]. Dr. Getachew explained in detail the pros and cons of orthoscopic surgery. He suggest[e]d to do physical therapy to strengthen the [q]uadricep muscles and to request for [sic] a knee stabilizer. The patient understood all Dr. Getachew's explanation and agreed with the suggesti[ion]. Will do consult for PT and knee stabilizer.

Med. Def. Ex. ECF No. 17-2 at 31.

         On April 30, 2015, Alvarez met with Stephen D. Ryan for a physical therapy evaluation. Med. Def. Ex. ECF No. 17-2 at 32. Ryan reported that Alvarez walked with a cane and his gait was “mildly antalgic but stable.” Ryan listed the goals of physical therapy to include extension of the left knee, increasing strength in the “quads, ” and establishing a self-management program for Alvarez. Med. Def. Ex. ECF No. 17-2 at 32. On May 12, 2015, Alvarez had one physical therapy session. Med. Def. Ex. ECF No. 17-2 at 33.

         On June 5, 2015, Dr. Barrera reported that Alvarez was presented “to consultant via telemed and recom[m]ended knee brace and physical therapy.” Med. Def. Ex. ECF No. 17-2 at 34. Barrera noted that neither the knee brace nor physical therapy was helping Alvarez who continued to walk with a cane and a limp. “Pain is not presently controlled with the present dose of gabapentin. He cannot use NSAID since it caused GI bleeding.” Med. Def. Ex. ECF No. 17-2 at 34. Barrera also renewed Alvarez's prescription for Gabapentin 800 mg. to be taken twice daily and add Tylenol with codeine to be taken when necessary. Med. Def. Ex. ECF No. 17-2 at 34.

         On the same day, June 5, 2015, Dr. Carls saw Alvarez for an orthopedic consultation for right knee pain and recommended arthroscopic surgery for him. Carls noted Alvarez had multi- directional instability and a meniscus tear. Med. Def. Ex. ECF No. 17-2 at 36. Dr. Carls' report reads in pertinent part:

ASSESSMENT: Right knee giving way symptoms with evidence of medial and lateral meniscus tears. Even though he had had a prior arthroscopy he is still having significant mechanical symptoms and there is evidence to suggest medial and lateral recurrent meniscus tears.
PLAN: Since he has not gotten better with any other non-surgical approach the recommendation is a revision right knee arthroscopy. In the meantime I strongly recommend to Bruman that he continue to work on quadriceps strengthening exercises to get his knee as strong as possible. He should also continue using his knee brace with can be very helpful. He understands the risks and benefits associated with surgery and he desires to proceed. When this is approved this can be done at Western Maryland Health System [WMHS] as an outpatient procedure.

Med. Def. Ex. ECF No. 17-2 at 37.

         On June 24, 2015, Alvarez underwent preoperative testing for a July 1, 2015, scheduled surgery with Dr. Carls. Med. Def. Ex. ECF No. 17-2 at 38. On June 25, 2015, Dr. Barrera saw Alvarez for complaints of back pain. Med. Def. Ex. ECF No. 17-2 at 39. Barrera entered the following notes on the medical chart:

Patient has chronic back pain compatible with deg. disc disease at the level L%=S1 [sic]. His pain however was controlled until the Neurontin was not approved. His back pain recurred and although he is approved for knee surgeryn[sic] the patient would like to wait until he resolves his back pain. I will therefore refer him back to Dr. Carls. His radicular pain shoots to his left toe.
Patient gives a history of GI bleeding from using NSAID, currently however, bec. His Neurontin was not approved, he is using his ibeuprofen sparingly for pain. I will request Neurontin again.

Med. Def. Ex. ECF No. 17-2 at 39.

         Alvarez asserts that he once again asked for the knee surgery after his back pain subsided. Alvarez Pl. Opp. ECF No. 31 at 11. Alvarez claims Dr. Barrera informed him that Dr. Getachew once again denied him the surgery. Id.

         On August 25, 2015, Alvarez's knee problem was again presented to Dr. Getachew during a telemedicine conference. Medical notes from the conference document that Alvarez' “knee dislocates depending on the way he walks.” Getachew recommended a knee brace and physical therapy for Alvarez. Med. Def. Ex. ECF No. 17-2 at 41; see also State Def. Ex. ECF No. 17-2 at 69, 70 (knee orthosis prescribed on September 30, 2015 awaiting authorization). Alvarez claims Getachew refused to approve surgery for him because it was “costly to Wexford.” Pl. Opp. ECF No. 31 at 11. When Getachew was informed that the surgery was already approved for June of 2015, he responded “June's approval was done in error.” Id. Alvarez also informed Getachew that he had already been provided physical therapy and a knee brace and had showed no improvement. Id. Dr. Getachew said he was ordering a better brace this time. Alvarez states that he received a custom brace approximately one year later but it did not help him. Id. at 11-12.

         Several months later, on December 17, 2015, Dr. Barrera saw Alvarez for complaints of back and knee pain. Barrera diagnosed Alvarez with degenerative disc disease and was prescribed 800 mg. of Neurontin to be taken twice daily. Further, Barrera also diagnosed degenerative knee disease, and noted that Alvarez walks with a cane, and was advised to use knee braces. Although Alvarez requested assignment to a properly outfitted cell to accommodate his unsteady gate, Barrera advised Alvarez to first try using a knee brace, the issuance of which was still pending approval. In addition, Barrera indicated that he would prescribe amitriptyline 10mg for Alvarez. Med. Def. Ex. ECF No. 17-2 at 42.

         On September 9, 2016, Carla Buck, RN, saw Alvarez for his complaints of low back pain. Buck observed that Alvarez walked with a cane and a limp and referred him for pain management. Med. Def. Ex. ECF No. 17-2 at 43. On December 13, 2016, [5] Alvarez' right knee gave out, causing him to drop a cup of hot coffee on his ...


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