United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION
GEORGE
J. HAZEL, UNITED STATES DISTRICT JUDGE
Pro
Se Plaintiff Amber Maree Canter (f/k/a Charles Canter)
brings this action against Defendants Naa E. Odifie and
Krista Self (f/k/a Krista Bilak) pursuant to 42 U.S.C. §
1983. Plaintiff alleges that Defendants failed to provide
adequate medical care as required by the Eighth Amendment
while Plaintiff was incarcerated by the Maryland Department
of Public Safety and Correctional Services
("DPSCS") at the North Branch Correctional
Institution ("NBCI"). ECF No. 1. Presently pending
before the Court is Defendant Self s Motion to Dismiss, or in
the Alternative, Motion for Summary Judgment. ECF No. 9. No.
hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the
following reasons, Defendant Self s Motion is granted. Claims
against Defendant Odifie shall also be dismissed for failure
to state a claim.
I.
BACKGROUND
Plaintiff
alleges that Defendant Self failed to promptly treat her
injuries sustained from a fall on March 22, 2017, both
Defendants refused to provide Plaintiff with her requested
pain management medication while Plaintiff was incarcerated
at NBCI, and Defendant Self withheld pain medication from
Plaintiff in retaliation for Plaintiff filing administrative
complaints against her. ECF No. 1. In her Complaint,
Plaintiff sets forth a detailed discussion of her medical
history, treatment, and allegedly inadequate care provided by
Defendants. In response, Defendant Self provides the Court
with Plaintiffs relevant medical records and an affidavit
from NBCI Medical Director Dr. Ava Joubert, which the Court
will discuss herein. Plaintiff has an extensive medical
history and suffers from a number of ailments, including
temporomandibular disorder ("TMD, " sustained after
an injury to her jaw), gallactorhea, epilepsy, anterior
pituitary disorder, and depressive disorder. See ECF
No. 9-4 (medical records); ECF No. 9-5 ¶ 3 (Joubert
Affidavit). Plaintiff has a past history of drug abuse and
has been prescribed Tylenol #3 (codeine) since 2008 for
chronic pain stemming from trauma to her face in 2007 that
resulted in multiple fractures to her lower jaw and required
emergency surgery. ECF No. 9-5 ¶ 5. On January 27, 2017,
Plaintiff underwent further treatment for her TMD and was on
the following medication regimen: Naproxen, Tylenol, Tylenol
#3 twice daily as needed for two weeks, Baclofen twice daily
as needed, Gabapentin, and Depakote. Id. ¶
6.[2]
On
February 15, 2017, Plaintiff was seen by Defendant Self, a
nurse practitioner employed by Wexford Health Solutions to
provide medical services to DPSCS inmates. ECF Nos. 9-4; 9-6
(Self Affidavit). Plaintiff indicated that her pain
medication was ineffective and requested Self to provide
Tylenol #3. Self informed Plaintiff that the drug was
"not indicated for long-term use" but submitted a
request for a pain management consult on Plaintiffs behalf.
ECF No. 9-4 at 1. Plaintiff again saw Self on March 1, 11,
and 21 whereby she continued to complain of chronic pain and
requested Tylenol #3. See Id. at 7-12. Self s
request for a pain management consult had not received a
response, and Self resubmitted the request each time.
Id. It is unclear whether Self actually provided
Plaintiff with Tylenol #3 during these visits.
On
March 22, 2017, Plaintiff was seen by Registered Nurse
Breauna Baker for emergent care after Plaintiff reported
falling due to a possible seizure. Id. at 13-14.
Plaintiff admitted to being intoxicated at the time, was
observed to have an abrasion and small hematoma to the right
facial area but no post-seizure symptoms, and was released
back into custody in stable condition. Id. The next
day, Plaintiff was seen by Self, again admitted to being
intoxicated, and stated that she fell and hit the side of her
face on the toilet as the result of a seizure. Id.
at 15-17. Self found no post-seizure symptoms and only minor
redness, swelling, and bruising to her face and declined to
prescribe narcotic medication given Plaintiffs intoxication
and without further confirmation that Plaintiff had in fact
suffered an injury warranting such medication. Id.;
ECF No. 9-6 ¶ 3.
On
March 24, 2017, Odifie, the clinical pharmacist, provided a
pain management plan for Plaintiffs condition, and her drug
therapy recommendation was to discontinue Tylenol, Tylenol
#3, Baclofen, and Gabapentin; continue Depakote; and start
Icy Hot, Elavil, and Robaxin. ECF No. 9-4 at 18-19. At NBCI,
the clinical pharmacist is responsible for making medication
recommendations to clinicians, like Defendant Self, who have
independent prescriptive authority to adopt or deviate from
the clinical pharmacist's recommendations. ECF No. 9-5
¶¶ 5, 6. Separate from Odifie's pain management
plan, Plaintiff was again seen by Self on March 24 and
complained that she had limited mobility and increased pain
in her jaw as a result of her March 22 fall. ECF No. 9-4 at
20-22. Self certified Plaintiff for physical therapy and
prescribed Tylenol #3 for an additional week. Id.
On
March 27, 2017, an x-ray taken of Plaintiff s jaw after her
March 22 fall indicated a "non-displaced fracture of
right zygomatic arch." ECF No. 9-4 at 23. On March 28,
2017, Plaintiff was seen at a patient care conference with
Self, along with psychiatry, behavioral health, and dental
providers. Id. 24-25. Plaintiffs medical records
indicate that as a result of the conference, Plaintiff would
be weaned from Neurontin, Tylenol #3 would be continued until
its expiration date, Tylenol and Baclofen would be
discontinued, Depakote and Naproxen would be continued, and
Icy Hot, Elavil, and Robaxin would be ordered. Over the next
two months, Plaintiff continued to receive treatment from a
number of medical providers, including Defendants Self and
Odifie, whereby Plaintiff repeatedly indicated that her pain
management regimen was inadequate and specifically requested
that Tylenol #3 be reinstated. Id.
28-61.[3]Notably, Plaintiff again raised objections
to her drug treatment regimen with Odifie on April 7, 2017.
ECF No. 9-4 at 32-33. Plaintiff expressed her concern that
Depakote, prescribed for management of her seizure disorder
before her incarceration, upsets her stomach and she had
declined to take it prior to being imprisoned and was
currently declining to take it. Plaintiff also related that
Gabapentin does not take all of the pain away, but "it
works." Id. at 32. Odifie explained that the
"medical team .. . [tries] as much as possible to
minimize or prevent polypharmacy (that is: unnecessary use of
medications)." Id. According to Odifie,
Depakote was prescribed to Plaintiff because it addresses
three issues: it is an anti-seizure medication, a mood
stabilizer, and treats chronic nerve pain. Plaintiff has all
three of these diagnoses. Odifie further explained that
"[a]dding Gabapentin duplicates therapy with Depakote
and using Gabapentin in place of Depakote leaves [her] mood
disorder untreated." Id. Odifie offered a
solution to Plaintiffs stated side effect with Depakote:
substituting Tegretol as an alternative drug, which has the
same anti-seizure, mood stabilizing, and nerve pain treatment
effect as Depakote. Id. Odifie noted that Plaintiff
appeared to be satisfied with that resolution and appeared to
understand the reasoning for the decisions made.
II.
STANDARD OF REVIEW
Defendant's
motion is styled as a Motion to Dismiss, or in the
Alternative, for Summary Judgment. If the Court considers
materials outside the pleadings, the Court must treat a
motion to dismiss as one for summary judgment. Fed.R.Civ.P.
12(d). When the Court treats a motion to dismiss as a motion
for summary judgment, "[a] 11 parties must be given a
reasonable opportunity to present all the material that is
pertinent to the motion." Id. When the moving
party styles its motion as a "Motion to Dismiss, or in
the Alternative, for Summary Judgment, " as is the case
here, and attaches additional materials to its motion, the
nonmoving party is, of course, aware that materials outside
the pleadings are before the Court, and the Court can treat
the motion as one for summary judgment. See Laughlin v.
Metropolitan Wash. Airports Auth., 149 F.3d 253, 260-61
(4th Cir. 1998). Further, the Court is not prohibited from
granting a motion for summary judgment before the
commencement of discovery. See Fed. R. Civ. P. 56(a)
(stating that the court "shall grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact" without distinguishing pre-or
post-discovery). Summary judgment is appropriate if
"materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations ... admissions, interrogatory
answers, or other materials, " show that there is
"no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a) and 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party moving for
summary judgment bears the burden of demonstrating that no
genuine dispute exists as to material facts. Pulliam Inv.
Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). If the moving party demonstrates that there is no
evidence to support the nonmoving party's case, the
burden shifts to the nonmoving party to identify specific
facts showing that there is a genuine issue for trial.
See Celotex, 477 U.S. at 322-23. A material fact is
one that "might affect the outcome of the suit under the
governing law." Spriggs v. Diamond Auto Glass,
242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
dispute of material fact is only "genuine" if
sufficient evidence favoring the nonmoving party exists for
the trier of fact to return a verdict for that party.
Anderson, 477 U.S. at 248. However, the nonmoving
party "cannot create a genuine issue of material fact
through mere speculation or the building of one inference
upon another." Beale v. Hardy, 769 F.2d 213,
214 (4th Cir. 1986).
III.
DISCUSSION
Plaintiff
asserts that Defendants violated her Eighth Amendment rights
when they substituted her prescriptions for Tylenol #3,
Baclofen, and Gabapentin with less effective drugs. ECF No. 1
at 16. Plaintiff further alleges that Defendant Self failed
to provide adequate medical treatment following her fall on
March 22, 2017 and withheld Tylenol #3 in retaliation for
Plaintiff filing an administrative complaint against Self and
threatening to expose an alleged affair between Self and a
correctional officer. ECF No. 13-1 at 23. As detailed below,
Plaintiffs claims are without merit and she is not entitled
to relief[4]
A.
Eighth Amendment Violation
The
Eighth Amendment prohibits "unnecessary and wanton
infliction of pain" by virtue of its guarantee against
cruel and unusual punishment. Gregg v. Georgia, 428
U.S. 153, 173 (1976). In order to state an Eighth Amendment
claim for denial of medical care, a plaintiff must
demonstrate that the actions of the defendants or their
failure to act amounted to deliberate indifference to a
serious medical need. See Estelle v. Gamble, 429
U.S. 97, 106 (1976). "Deliberate indifference is a very
high standard a showing of mere negligence will not meet it.
.. [T]he Constitution is designed to deal with deprivations
...