United States District Court, D. Maryland
Xinis, United States District Judge
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
Wexford Health Sources, Inc., Asresahegn Getachew, M.D.,
Robustiano Barrera, M.D., and Janice Gilmore (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.
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.
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
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
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.
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 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.
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.
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.
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,
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.
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.
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.
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.
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.
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.
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.
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.
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
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
Med. Def. Ex. ECF No. 17-2 at 37.
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
Med. Def. Ex. ECF No. 17-2 at 39.
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.
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.
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.
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,  Alvarez' right knee gave out, causing
him to drop a cup of hot coffee on his ...