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Aurel v. Wexford Health Sources, Inc.

United States District Court, D. Maryland

June 19, 2018

MICH AUREL, #317239 Plaintiff,


          Ellen L. Hollander United States District Judge

         Mich Aurel, [1] the self represented plaintiff, is a State inmate housed at the North Branch Correctional Institution (“NBCI”). He is a frequent litigator in this Court. On January 26, 2018, the Court dismissed his civil rights complaint in Aurel v. The Staff of Wexford Health Sources, et al., Civil Action No. ELH-17-1201 (D. Md.), upon finding that defendants had provided Aurel with adequate medical care under the Eighth Amendment. See id., ECF 23; ECF 24.

         On March 26, 2018, Aurel filed an Affidavit in that case (ECF 25), asserting that for years he has not received proper medical care for his symptoms, and that health care staff continue to lie to him about treatment and medications for his symptoms related to lower back, abdominal, and throat pain; infection of his tongue; thyroid, liver, prostate, and colon cancers; gastrointestinal problems (constipation, ulcer, and blood in stool); and positive test results for Hepatitis A & B (HAV and HBV).[2] On March 28, 2018, Aurel filed a motion for a preliminary injunction and a temporary restraining order. Id., ECF 26. Aurel complained that he has been threatened by medical staff and denied medication for symptoms and injuries. The pleading also discusses injuries and medical conditions including, but not limited to, Aurel's back pain caused by a 2016 fall from a top bunk; pain in his throat, neck, ears, bladder, and abdomen; infection to the tongue; swollen lymph nodes (possible thyroid cancer); and HAV and HBV. Further, he contends that his organs have started to fail due to the lack of adequate medical treatment over the past four years. Id.

         Although the case (ELH-17-1201) was already closed, and Aurel is subject to the bar of 28 U.S.C. § 1915(g), the court directed defendants to file a court-ordered response. Id.; ECF 27. They did so on April 23, 2018. Id., ECF 28. In addition, defendants provided authenticated medical records and the Affidavit of Asresahegn Getachew, M.D. See ECF 28-2; ECF 28-3.

         By Order of April 30, 2018, I determined that it would be appropriate to construe Aurel's submissions in ELH-17-1201 as the original and supplemental complaint in an entirely new case. See ELH-18-1251. Therefore, Aurel's Affidavit is construed as the Complaint, docketed at ECF 1. His motion for preliminary injunction is docketed as ECF 2. Defendants' court-ordered response, supported by an exhibit and an affidavit, appears at ECF 3; ECF 3-2; ECF 3-3. It shall be construed as a motion for summary judgment (“Motion”).

         Aurel was twice provided notice of the court's construction and the opportunity to file an opposition. ECF 4; ECF 5. Aurel filed an opposition (ECF 6), which he supplemented by Affidavit of June 8, 2018. ECF 9. Defendants filed a reply (ECF 7), with an exhibit. By Order of May 30, 2018 (ECF 8), the Court directed defendants to file an addendum to their Reply, so as to include documentation in support of their assertions. The supplementation has been provided. ECF 10; ECF 10-1.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, defendants' motion for summary judgment shall be granted.

         I. Background

         Aurel alleges that he has been denied medical treatment for symptoms related to lower back, neck, ear, abdominal, bladder, and throat pain; infection to his tongue; thyroid, liver, prostate, and colon cancers; gastrointestinal problems (constipation, ulcer, and blood in stool); and positive test results for HAV and HBV. He seeks treatment (medication and operations) from a specialist for his avowed conditions.[3]

         In response, defendants state that Aurel is a fifty-two year old male incarcerated at NBCI. They have provided two affidavits of Asresahegn Getachew, M.D. ECF 3-3; ECF 10-1. Dr. Getachew is a licensed physician employed by Wexford Health Sources, Inc. (“Wexford”) as the acting Medical Director at NBCI. ECF 3-3, ¶ 1; ECF 10-1, ¶ 1.

         Dr. Getachew avers that Aurel has a medical history for hypothyroidism; asthma; constipation; hypertrophy of prostate; cough; hyperlipidemia; an esophageal reflux positive tuberculosis (“TB”) skin test without active TB disease; positive HAV AND HBV surface antibody tests in 2009; seasonal allergies; syncopal episodes with implanted cardiac monitor, which was surgically removed in 2006; micro fractures of the right foot diagnosed in 2011, with calcaneous deformity and chronic apophysitis; and a surgically repaired left lateral ankle fracture with retained hardware. ECF 3-3, ¶ 4; ECF 10-1, ¶ 3. Further, Getachew maintains that Aurel has a mental health diagnosis of hypochondria. ECF 3-3, ¶ 4.

         According to Getachew, Aurel's current medications include Zyrtec for his allergies; Simvastatin for high cholesterol; Mobic for pain; Prilosec for esophageal reflux[4]; Synthroid (levothyrotine sodium)[5] for hypothyroidism; Miralax[6] for constipation; Capsaicin ointment for topical pain relief; Terazosin[7] to improve urination; Amitriptyline for pain; and a Proair Hfa (albuterol)[8] inhaler as needed, to control asthma. ECF 3-3, ¶ 6. Getachew opines that, to a reasonable degree of medical probability, these medications are appropriate for Aurel's medical conditions. Id.

         Getachew indicates that Aurel is not scheduled for surgery. Id. ¶ 7. Further, Aurel utilizes a back brace against medical advice, as his medical conditions do not indicate a current need for any assistive device. Id. ¶ 8. In addition, Aurel has a well-documented history of incorrectly self-diagnosing himself with bone, prostate, thyroid, throat, and colon cancer, none of which have been medically diagnosed or supported by clinical data; infections of various organs and body parts, which have not been diagnosed by “gross” examination or lab work-up; and subjective claims of acute pain, “neither corroborated by observation nor physical abilities which show normal movements and no impairment in ability to complete normal daily activities.” ECF 3-3, ¶ 9.

         Moreover, Getachew avers that Aurel “engages in obsessive behavior frequently fixating on certain symptoms” of a disease or condition, and has a “tendency to amplify these symptoms in presentation and they form the basis of his misdiagnosis.” Id. ¶ 10. The doctor also asserts that Aurel is “a poor historian” who “frequently confuses symptoms he has reported, and treatments and medications received.” Id. According to Dr. Getachew, Aurel “refuses to accept clinical evidence, particularly when that evidence contradicts his own diagnoses, ” and he often contends that “lab results have been fabricated.” Id.

         Getachew claims that Aurel has been diagnosed by psychiatry as hypochondriacal and, because of this condition and his “habitual conduct of accessing health care, [Aurel's] plan of care until December 2017 included a biweekly evaluation by a mid-level provider.” Id. ¶ 11. In December 2017 the plan of care was changed to monthly evaluations. Id.; see ECF 3-2 at 32-33, 40-41, 52, & 62-63.

         According to Getachew, Aurel has been “non-compliant with his medications” ECF 3-3, ¶ 12, and the pharmacy has been instructed to require him “to sign for his keep on person medications, ” and Aurel is to be directly observed when taking his chronic care medications. Id. Getachew maintains that Aurel does not have thyroid, prostate, colon, or eye cancer, and his lab results were and are normal. Id. ¶ 13. Moreover, Aurel had an unremarkable colonoscopy in 2016. His guaiac stool tests are normal. Id. Aurel's evaluation by the optometry department in February 2018 was unremarkable, aside from his need for corrective lenses. Id. His lymph nodes are not enlarged. Aurel's gums, throat, and tongue have been evaluated by both medical and dental providers and were found to be unremarkable. Id. Aurel has not demonstrated fatigue, rectal bleeding, or night sweats. Although Aurel has been educated as to these findings, he “refuses to believe” the medical providers' assessments. Id.; see ECF 3-2 at 2-3, 23-28, 35-36, 43, 47-50, & 53.

         As noted, Aurel does have certain chronic conditions, including hypothyroidism, asthma, and hyperlipidemia, but they are monitored with chronic medical care. ECF 3-3, ¶ 14. But, the conditions are controlled with medications, i.e., Synthroid, albuterol inhaler, Simvastatin, and fiber supplements. Id. Further, Aurel has been advised to increase his activity level and to follow an exercise plan in light of his medical conditions and obesity. Id.; see ECF 3-2 at 2, 20-22, & 40-42. Dr. Getachew states that Aurel will “continue to be regularly seen at chronic care and to have access to medical staff at all times via the sick call process.” ECF 3-3, ¶ 21.

         Getachew avers that Aurel frequently complains of low back and hip pain radiating down his right leg to his foot. ECF 3-3, ¶ 15. According to Getachew, Aurel has no anatomical disorder and an x-ray of his “LS spine” was normal, as was that of his right hip. Id. Aurel has been examined by an orthopedist, Roy Carls, M.D., who has only recommended conservative treatment with stretching exercises. Id. Aurel completed a course of physical therapy in 2017, with improvement to his antalgic gait. ECF 3-3, ¶ 15.[9] Aurel has indicated he no longer wants any physical therapy. Id. Previously, Aurel was treated with Neurontin, Baclofen, Cymbalta, Mobic, and Robaxin, but he has consistently requested to be placed on Vicodin and Tramadol. He is being scheduled for an MRI of the back for a further determination of his complaints of pain. Id.; see ECF 3-2 at 4-8, 9-25, 27-30, 35-36, & 47-51.

         Getachew asserts that Aurel often complains of abdominal pain and his frequent constipation is being treated with Miralax. An ultrasound of the abdomen, taken in January of 2018, was unremarkable, except for indications of “hepatic steatosis (fatty liver).” ECF 3-3, ¶ 16. But, Aurel's liver function tests are normal. Id. Getachew also states that Aurel has an 11 mm. benign cyst on his liver. Id. Aurel has discontinued a cardiovascular diet, but remains on a 2400 ...

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