Amber Maree Canter v. Odifie

          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 ...