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Dicks v. Bishop

United States District Court, D. Maryland

August 20, 2018

ANDREW JOSEPH DICKS, #336-138, Plaintiff,
WARDEN FRANK BISHOP, JR., et al., Defendants.


          George L. Russell, III United States District Judge.

         THIS MATTER is before the Court on a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment filed by the Medical Defendants, Nurse Practitioner Janette Clark (“Clark”), Nurse Practitioner Krista Self (“Self, ” also known as Krista Bilak or Krista Swan), and Registered Nurse Robert Claycomb (“Claycomb”). (ECF No. 21). The Court, having reviewed the Motions and supporting documents, finds no hearing necessary. See Local Rule 105.6 (D.Md. 2016). For the reasons outlined below, the Court will grant the Motion to Strike Surreply and will grant the Medical Defendants' dispositive Motion.

         I. BACKGROUND

         In a Complaint filed August 31, 2017, Plaintiff Andrew Joseph Dicks, a Maryland prisoner currently incarcerated at Patuxent Institution in Jessup (“Patuxent”), alleged unconstitutional conditions of confinement and denial of medical care, in violation of his First, Fourth, Eighth and Fourteenth Amendment rights. (Compl. at 3, ECF No. 1). Dicks' allegations, for which he seeks money damages and injunctive relief, are directed at correctional and medical personnel employed at North Branch Correctional Institution (“NBCI”) and encompass a period between October 7, 2014 and October of 2017, [1] prior to his transfer from NBCI to Patuxent.[2]

         Dicks states that on July 4, 2015, he slipped while climbing into his top bunk, injuring his neck and shoulder and exacerbating his chronic back pain. (Id. at 17). He claims he never should have been assigned a top bunk, due to a 2012 knee injury requiring him to use a cane. (Id.). Dicks claims he reported his injury to medical personnel who gave him four Motrin and an x-ray, but provided no further diagnostic testing. (Id. at 18). Corrections personnel kept him from a July 9, 2015 follow-up visit. (Id.). He renewed his sick call request on July 20, 2015, and was seen by Clark on July 28, 2015. (Id. at 19). Clark discussed the x-ray results, suggested Dicks try yoga stretching, and provided no further assessment. (Id.).

         Dicks states that after the July 4, 2015 injury, medical personnel did not provide an order mandating his assignment to a bottom bunk, and Claycomb refused his September 12, 2015 request for a bottom bunk. Dicks claims he slept on the floor of his cell from the date of his injury until October 26, 2015. (Id. at 19-20).

         Dicks claims that on January 11, 2016, Bilak responded to his sick call request concerning neck and shoulder pain. He claims Bilak did not address his neck and shoulder pain, but increased the medications he used to alleviate his back spasms. (Id. at 20). Dicks states that his March 3, 2016 sick call request was answered on March 23, 2016. At that visit, he was promised back pain treatment and physical therapy, but neither modality was provided. (Id.).

         The Medical Defendants provide a somewhat different interpretation of Dicks' medical care. Dicks, in his mid-forties, suffers from esophageal reflux, back pain, neck pain, hypertension, dermatitis, and bipolar disorder. (See generally Joubert Aff., ECF No. 21-5).

         Relevant to the Complaint, on July 4, 2015, Dicks reported to the medical unit and was seen by Registered Nurse Tammy Buser. (Defs.' Mot. Dismiss Summ. J. Ex. 1 at 2- 3, ECF No. 21-4). Buser assessed his gait as steady, but noted he was bent over. (Id.). Dicks could move his shoulder and extend his arm, but felt pain. His neck and upper back also hurt, and was stiff when moving his head and neck. (Id.). Buser determined the injury was muscular, but ordered x-rays, provided Motrin, and referred Dicks to a provider. (Id.). X-rays shows mild degenerative changes in the right shoulder with no evidence of an acute fracture, dislocation, or subluxation. (Id., at 4).

         On July 24, 2015, Dicks reported to nurse sick call complaining of neck and should pain so severe he could barely lift his arms. (Id. at 6). Palpation shows right side pain and slight swelling was present. Dicks was in handcuffs and could not demonstrate range of motion, but stated he could use the arm normally. He was referred to a provider. (Id.).

         Four days later, on July 28, 2015, Dicks was seen by Clark, who reviewed his x-rays. He reported the right should still hurt. At the time, Dicks was taking prescription medications, including Tegretol, Mobic, Naproxen, and Baclofen. (Id. at 7-8). He reported this combination of medications helped, and no changes to this medication regimen were made. (Id.). Examination revealed right shoulder had anterior tenderness, normal extremities, and no kyphosis or scoliosis (curvature) of the spine. Clark suggested Dicks try some yoga books in the library for ideas on how to stretch his muscles and alleviate his stiffness. (Id.).

         On September 9, 2015, Dicks met with Self to review lab results, adjust his chronic back pain medications, and issue an order for clippers for one year (rather than a razor), for shaving to mitigate atopic dermatitis rash. (Id. at 9-10). Self noted Dicks was on a minimum dose of Mobic and Naproxen, which would be increased before other medications would be changed. Dicks' prescription dose for Mobic was increased from 7.5mg to 15mg, and the Naproxen dose was increased from 250 mg to 500 mg. (Id.). Dicks voiced no complaint specific to his neck, shoulder or back. (Id.).

         Three days later, on September 12, 2015, Dicks was seen at nurse sick call by Claycomb, to obtain paper work for use of the clippers and to request a bottom bunk. (Id. at 11-12). Dicks, who complained of gastric reflux, walked with a steady gait and was able to get on and off the exam table without difficulty. He stated he used Prilosec twice daily for heartburn, even though the prescription was only for once daily. Dicks had an esophagogastroduodenoscopy (“EGD”) in 2009 and wanted another, due to right neck pain with swallowing and right chest burning during and after eating. (Id.). He was referred to a provider to obtain an order for the bottom bunk and EGD testing. (Id.).

         On September 27, 2015, Dicks complained to Claycomb at nurse sick call that his Baclofen prescription had not been increased. (Id. at 13-14). He was informed that his Naproxen was increased instead, a decision Dicks said was not supposed to happen. He showed no acute distress and had a steady gait. Dicks was referred to a provider for evaluation. (Id.).

         On November 13, 2015, Dicks complained to Dr. Ashraf of a sore throat, and requested the renewal of all his medications. (Id. at 15-16). The medications were all current, with the exception ...

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