United States District Court, D. Maryland
K. BREDAR, CHIEF JUDGE
Lloyd, a self-represented Maryland prisoner, filed a civil
rights complaint alleging that he was illegally detained in a
State correctional facility when he injured his right triceps
after falling from his bunk. He alleges he received
constitutionally inadequate medical care for his injury. ECF
6. Now pending is a Motion to Dismiss or, in the Alternative,
for Summary Judgment filed by defendants Contah Nimely, Lori
Slavick, and Wexford Health Source, Inc. ECF 45,
Plaintiff has responded (ECF 53, 55) and defendants have replied
(ECF 54). Upon review of the papers filed, the court finds a
hearing in this matter unnecessary. See Local Rule
105.6 (D. Md. 2016). For the reasons stated below,
defendants' dispositive motion will be
plaintiff's claims have been previously summarized as
Plaintiff indicates that in 2009 he was convicted of bank
robbery and related offenses in the Circuit Court for
Baltimore County. He was sentenced to 25 years'
incarceration without the possibility of parole. On February
23, 2015, his petition for post-conviction relief was granted
and his conviction vacated. ECF 1, p. 7.
On May 21, 2015, three months after he was granted
post-conviction relief, he alleges he improperly remained
confined in state prison at the Maryland Correctional
Training Center (“MCTC”). Id. He states
that his post-conviction counsel contacted Deputy State's
Attorney Glennon requesting that he be transferred to the
County Detention Center. Id., p. 8. Plaintiff
indicates his belief that since he was then awaiting trial it
was improper to continue to house him in the Division of
While housed at MCTC, he fell from his bunk sustaining a
serious injury to his right elbow. Id. Plaintiff
states that he was “falsely diagnosed with a bone spur:
and later taken to a local hospital where he was diagnosed
with a torn tricep [sic] and blood clot.” ECF
6, p. 3. He states that it took five months to have his
injury treated and he underwent two surgeries to repair his
arm. The first was performed on March 1, 2016, at Bon Secours
hospital. ECF 1, p. 8. Plaintiff states his surgery was
“botched.” Id. Plaintiff indicates he
was denied proper post-operative medical care by the named
medical defendants who failed to follow the discharge
instructions of his surgeon. Id., p. 8. Rather,
Physician Assistant Lori Slavick removed the stitches. ECF 6,
p. 3. The removal of the stitches/staples left a hole in his
right elbow. He claims that as a result he has suffered
excruciating pain, draining, infection, and burning from the
ulcer that developed at the surgical site. ECF 1, pp. 8-9. He
claims he was tortured by the physical
therapist and received second degree burns on his
biceps. ECF 6, p. 3. He also claims he was burned by Dr.
Saleem Muhammed. Id.
Also pending is plaintiff's “Supplement to Amended
Complaint.” ECF 39. Plaintiff indicates that on June 29,
2017, he was returned to Bon Secours Hospital for additional
surgery to treat his elbow injury. He states that once again
his post-operative orders were not followed and that Contah
Nimely continued to provide follow up care, despite the
conflict of interest that exists due to plaintiff's suing
Nimely in this case. Additionally, plaintiff alleges that he
was directed to return to the surgeon two weeks after his
surgery but was not returned. Instead, staff at the prison
removed his stitches. Plaintiff maintains that this is the
same type of conduct that caused him injury after his initial
surgery to repair his elbow. He further maintains that his
follow-up treatment with the surgeon was scheduled for
August, weeks after the surgeon directed he return for
follow-up care. Id.
ECF 41 at pp. 2-4.
Medical Defendants' Response
support of their motion, defendants have submitted various
exhibits, including the affidavit of Robustiano Barrera, M.D.
(ECF 27-5), and 139 pages of plaintiff's medical records
relative to the initial injury and first surgery (ECF 27-4),
as well as Contah Nimely, M.D.'s affidavit (ECF
and an additional 184 pages of plaintiff's medical
records detailing his care after the initial operation and
including his second surgery and post-operative care. ECF
avers that plaintiff has a medical history significant for
hyperlipidemia, asthma, olecranon bursitis, and a torn right
triceps tendon. ECF 27-5, ¶ 4. Barrera indicates that
“[t]he olecranon bursa is a small fluid filled sac that
decreases friction between tissues and bony structures in the
elbow.” Id., ¶ 5. It is described as very
thin and when struck or injured can fill with fluid or blood
and become enlarged and painful. Id. If the bursa is
repeatedly irritated or injured, its walls may thicken and
develop irregular areas of scar tissue that are often
mistaken for bone chips or spurs. Id. Barrera avers
that calcium may collect inside the bursa. Id.
Olecranon bursitis may be treated with rest, application of
ice, compression, elevation, or aspiration by a doctor.
August of 2015, due to complaints of pain and swelling,
plaintiff's right olecranon bursa was aspirated. ECF
27-5, ¶ 6; ECF 27-4 at p. 1. The aspirated fluid was
cultured and the culture was negative. Id.
plaintiff continued to complain of pain in his right elbow.
ECF 27-5, ¶ 7; ECF 27-4 at p. 1. On October 27, 2015, he
was evaluated by Physician's Assistant Murray who
assessed plaintiff as having a palpable bone spur on the
olecranon process that caused irritation to his skin.
Id. Plaintiff reported pain when he flexed or
extended his elbow. Id. An x-ray was ordered but did
not show a spur. Id. Murray consulted with MCTC
medical director Dr. Ottey who agreed to refer plaintiff to
the onsite orthopedic doctor, Dr. Manning. Additional lab
work and x-rays were also ordered. ECF 27-5, ¶ 7; ECF
27-4 at pp. 3-4. Barrera avers that “[a]lthough the
x-ray tended to rule out a bone spur, the x-ray was [not]
definitive of a diagnosis.” ECF 27-5, ¶ 7. Barrera
further avers the course of treatment provided plaintiff at
this point was not contraindicated whether or not plaintiff
suffered from a bone spur, and that plaintiff did not suffer
any medical consequences due to the bone spur diagnosis.
continued to complain of pain and swelling in his elbow. ECF
27-5, ¶ 8; ECF 27-4 at pp. 5-12. He was seen by nurses
and mid-level providers to whom he expressed regular concern
regarding the swelling in his elbow and reported that he was
told it could be a sign of a blood clot. Id.
Plaintiff was provided analgesic pain medication and educated
about his condition. ECF 27-4 at pp. 5-12. Barrera avers that
injury to the olecranon bursa commonly results in swelling
and was likely the cause of the swelling. ECF 27-5, ¶ 8.
He notes that plaintiff was never diagnosed as suffering from
a blood clot. Id.
November 17, 2015, plaintiff injured his right upper arm
getting out of bed. ECF 27-5, ¶ 9; ECF 27-5 at p. 13. He
was seen on November 23, 2015, by P.A. Murray who described
plaintiff as “report[ing] to the dispensary with color
change, increasing pain, warmth, worsening swelling, and
fluid moving up the arm.” Id. Dark blue
bruising from below the elbow to 14 centimeters up the
posterior biceps was observed. Plaintiff's upper arm and
elbow were described as extremely tender to the touch and
warm. Id. It was noted that plaintiff's recent
x-ray of the elbow showed no fracture, dislocation, or
subluxation and the alignment was anatomic and that he had
been referred to the onsite orthopedist but had not yet been
seen. ECF 27-4 at p. 13. Murray consulted with the Regional
Medical Director about the possibility of a septic joint. ECF
27-5, ¶ 9; ECF 27-5 at p. 13. The Regional Medical
Director advised Murray to consult with Dr. Atanfu about
sending plaintiff to Meritus Medical Center
(“MMC”) or Bon Secours Hospital for further
same day, plaintiff was sent to MMC and underwent a CAT scan,
which revealed “diffusely edematous triceps tendon with
associated joint effusion and olecranon bursitis.” ECF
27-5, ¶ 9; ECF 27-4 at p. 21. Plaintiff was diagnosed as
suffering a right triceps tendon tear. He was directed to
consult with an orthopedist for possible surgery and to
follow up with an MRI. Id. Barrera avers that in his
opinion to a reasonable degree of medical probability this
was the appropriate treatment for plaintiff's November
17, 2015 injury. Id.
returned to MCTC that day. ECF 27-5, ¶ 9; ECF 27-4 at p.
28. The recommendation for an MRI was noted. His prescription
for a tapering dose of prednisone was continued and a consult
to see Dr. Manning submitted. ECF 27-5, ¶ 10; ECF 27-4
at pp. 28-29. Plaintiff saw Dr. Manning on December 4, 2015.
ECF 27-5, ¶ 10; ECF 27-4 at p. 30. His right elbow range
of motion was described as full. Id. “[A]
large area of echymosis about the medial distal half of the
right arm” was noted. Minimal swelling of the elbow was
also observed and a palpable defect above the right olecranon
noted. An x-ray of undisclosed date showed a “tiny
olecranon spur.” ECF 27-4 at p. 30. Plaintiff was
provided a sling and an elbow sleeve and it was recommended
that he be provided an urgent consult with an outside
orthopedic doctor for surgical repair of the right triceps.
Id. at pp. 30-32.
was seen by Dr. Krishnaswamy on December 15, 2015, who
indicated that plaintiff needed reconstruction of the triceps
and it would be done “soon.” ECF 27-5, ¶ 11.
On February 23, 2016, plaintiff underwent a preoperative
examination in preparation for his triceps repair surgery
(ECF 27-4 at ¶ 34-35), which occurred at Bon Secours
Hospital on March 1, 2016. ECF 27-5, ¶ 13; ECF 27-4 at
tolerated the procedure well and there were no complications.
ECF 27-5, ¶ 13; ECF 27-4 at pp. 36-43. He returned to
MCTC that day with a splint and a sling on his right arm. ECF
27-5, ¶ 13; ECF 27-4 at p. 44-45. It was noted that he
could move all fingers on his right hand and his sensation
was intact. His surgeon prescribed Cephalexin and
Hydrocodone-acetaminophen. Id. He was cleared to
return to his housing unit. Id. Barrera avers that
in his opinion to a reasonable degree of medical probability
this was the appropriate treatment for plaintiff's right
tendon tear. ECF 27-5, ¶ 13.
March 23, 2016, Lori Slavick, P.A. removed plaintiff's
staples during an unscheduled provider visit. ECF 27-5,
¶ 14; ECF 27-4 at p. 48-49. The staples were removed
without incident and the area cleaned and an Ace wrap placed.
Slavick noted that plaintiff was to follow up with
Krishnaswamy as soon as possible. ECF 27-4 at p. 48. Barrera
avers that, as a mid-level provider, Slavick was competent to
remove the staples and was within her authority and medical
judgment to decide to do so. ECF 27-5, ¶ 14. He ...