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Allen v. Barrera

United States District Court, D. Maryland

August 23, 2018

ROBUSTIANO BARRERA, M.D., et al., Defendants



         Jerome Leslie Allen, a self-represented Maryland prisoner, filed a civil rights suit against a host of defendants, alleging a variety of claims. ECF 1; ECF 7; ECF 8. In general, Allen alleged retaliation; deprivation of pain medication; deprivation of food; denial of adequate medical care; and conspiracy by correctional officers who “stood around and watched” while he was the victim of “hate crimes.” ECF 1 at 3-4.

         In a Memorandum Opinion (ECF 33) and Order (ECF 34) of August 21, 2017, I granted the motion for summary judgment filed by defendants Western Correctional Institution (“WCI”); Lt. Curran McKenzie; Sergeant Thomas Menges; and Sergeant Jason Daddysman. I also granted the motion to dismiss filed by Wexford Health Sources, Inc. Id. However, I denied the motion to dismiss filed by Robustiano Barrera, M.D. Id.; see ECF 20.[1] I noted that the Medical Defendants filed no medical records to support their assertions. ECF 33 at 10. In contrast, the Correctional Defendants submitted extensive medical records. Id.

         Now pending is a motion for summary judgment filed by defendant Robustiano Barrera, M.D. ECF 35. In support of his Motion, Dr. Barrera has submitted various exhibits, including his own Affidavit and over 350 pages of plaintiff's medical records. ECF 35-2 (Medical Records); ECF 35-3 (Barrera Affidavit). Plaintiff opposes the Motion. ECF 37;[2] ECF 38. He has also submitted exhibits. ECF 39.

         Due to an unexplained error, Barrera's memorandum of law was not electronically submitted when the summary judgment motion was filed. It has since been docketed. See ECF 41. The motion and the memorandum shall be referred to collectively as the “Motion.” Plaintiff was advised of the filing error and was granted an additional twenty-one days to supplement his opposition to the Motion. ECF 42. His supplemental opposition is docketed at ECF 43.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, I shall grant the Motion.

         I. Factual Background

         Barrera, a licensed physician, served as the acting Medical Director of NBCI and WCI from December 2015 to May 2017. ECF 35-3, ¶ 2. He resigned from his employment with Wexford Health Sources, Inc., effective August 4, 2017. Id.

         Plaintiff complains that Dr. Barrera “allowed” correctional staff “to forcefully remove” his wheelchair. ECF 37 at 2. Further, he contends that he is “a forced SLAVE whose many rights have been violated and deprived . . . .” Id. at 4. He argues that has been deprived of adequate medical care. Id.

         In ECF 33, I previously recounted the factual background of this case. The pertinent summary concerning the alleged denial of medical care follows, id. at 2-6:

Allen is a State inmate confined at the WCI in Cumberland, Maryland. He filed suit on November 17, 2015, initially naming only WCI and Wexford as defendants. ECF 1. Allen alleged that on October 26, 2015, he went to officers in his housing unit asking for assistance, claiming that he was being deprived of food because his medical “feed-in” papers were rescinded and that he did not receive pain medication because his bedrest papers were rescinded. Id. at 3. Plaintiff indicated that he advised Lt. McKenzie that he was suffering from back pain but McKenzie sent him back to his building. While plaintiff was returning to his unit, his legs gave out and he fell, hitting his head. Plaintiff got up to walk but fell and hit his head again. Id. According to Allen, he was denied medical attention by both custody and medical staff and was taken to lock-up. Id.
* * *
Plaintiff filed correspondence in March 2016 (ECF 7), with an exhibit. The submission was construed as a supplemental complaint adding additional defendants.[] ECF 9. In his supplemental filing, plaintiff asserted generalized allegations regarding interference with mail; racism; retaliation from unidentified correctional and medical staff; inadequate medical care; and “fear for [his] life.” ECF 7 at 1.[] Further, plaintiff claims that he has suffered from harassment, and was called “black and dumb.” Id. He states that he reported these comments to “Lt. Hendricks/Dtoglia?” and she took a report. In addition, plaintiff claims the medical department refuses to see him, despite his many health problems. Id. Plaintiff indicates that he filed suit because of malicious intent, gross negligence, and “hate crimes.” Id.
* * *
In his supplemental filing, plaintiff specified that on October 8, 2015, he was transferred from “MCI-H Hospital” to WCI in order to participate in the “wheelchair program” and undergo rehabilitation and physical therapy. ECF 7 at 1. He asserts that he was instructed by doctors to get out of his wheelchair whenever he could and to exercise, including playing basketball, and if he did not do so his condition would worsen. On October 16, 2015, he went to the small recreation yard where he got out of his wheelchair and played basketball by himself. He claims that cameras would show he struggled and once his body tightened up, he sat back in the wheelchair. He indicates that he was so weak that he had to obtain assistance from another inmate to return to his housing unit.
On October 20, 2015, at approximately 8:45 a.m., Allen was called to the medical unit and given “feed-in” status because of his arthritis. ECF 7 at 1. Plaintiff brought the papers to Housing Unit 3 and provided a copy to the 8-4 shift sergeant and returned to his cell. Id. A few minutes later the unidentified sergeant came to his cell and asked plaintiff for the rest of his papers. The sergeant then “balled” up the papers and said: “'If you want to eat go to chow hall.'” Id. Plaintiff explained his situation but the sergeant “began acting in an uncivilized manner.” Id.
Later that day, plaintiff was told to return to the medical unit. At that time his wheelchair was confiscated by Sgt. Daddysman. Id. Plaintiff reports that Dr. Barrera said: “‘I know, but they want me to take it.'” Id. Plaintiff returned to Housing Unit 3. He states that he tried to walk the long distance but his “body kept locking up . . . .” Id.
On October 23, 2015, [plaintiff's] legs repeatedly gave out on him and he was taken to medical where he was given “feed-in” status until he could be evaluated by the doctor. He states the food came to his cell on the first day but from the 24th to 26th of October 2015, he had problems with the staff, who deprived him of his food trays. Id.

         According to plaintiff, on a number of instances he collapsed due to not having the use of a wheelchair. Id. at 5. Ultimately, on November 5, 2015, he was taken to Bon Secours Hospital for an “electromyogram, ” which revealed that he had existing medical problems, including nerve impingement and spondylosis. Id. at 6 (citing ECF 7 at 2; see also ECF 22-2 at 2.)

         Additionally, I previously said, ECF 33 at 7-10:

In support of his claim, Allen states that on July 16, 2015, he executed a release of information in favor of the Maryland Department of Public Safety and Correctional Services (“DPSCS”), which he gave to agents of Wexford so that they could verify his condition and adopt an appropriate course of treatment. According to plaintiff, on July 16, 2015, he was provided a crutch to use as a cane, because Wexford did not have a cane for someone of his height. In Allen's view, this demonstrates Wexford's knowledge that Allen suffers from a serious medical condition and it furnished an assistive device for him to ambulate. Id. at 4. Further, plaintiff indicates that an assessment dated October 8, 2015, indicated that he was transferred to WCI because his mobility was impaired and he was given a wheelchair as an adaptive device. Id. ECF 22-1 at 7.
In an attachment to his opposition (ECF 22-2), plaintiff states that he “honestly believe[s] that [Dr. Barrera] was afraid and in fear at the time of his wrongs” to Allen. Id. at 1. Further, he states: “Dr. Barrera should have taken up for me in front of those goons, but he didn't which is clear malpractice, negligence, etc.” Id. Yet, he acknowledges that, under the circumstances, he “probably would have made the same choice.” Id. Nevertheless, Allen adds: “It does not excuse his actions . . . but I do not want Dr. Barrera held accountable on the same level as the other Defendants. He could have said that he was ‘sorry' and I would have forgave him.” Id.
* * *
Plaintiff has also submitted a copy of an ARP dated October 20, 2015, in which he detailed his complaint regarding the involvement of Daddysman and Barrera in the confiscation of his wheelchair. ECF 22-1 at 6. He recounted that he was called to the medical unit on October 20, 2015, and Dr. Barrera advised him that the correctional officers wanted the doctor to take plaintiff's wheelchair from him because he was observed playing basketball. Id. Plaintiff advised Barrera that other medical providers had instructed him to exercise, to play basketball, and do anything he could to strengthen and rehabilitate. He also reported that he was advised that the more he sat still the worse his condition would become. Id. According to plaintiff, Barrera acknowledged his agreement with this medical advice, but he explained that “the officers want him me to take [the] wheelchair . . . because they saw [Allen] on camera playing basketball.” ECF 22-1 at 6.
In the ARP, plaintiff also stated that he and Barrera then began discussing Allen's “pain levels.” Id. at 7. Sgt. Daddysman was in the room “the entire time” and “interrupted” the conversation, stating that he saw plaintiff playing basketball and he was taking the wheelchair. Id. Plaintiff objected, advising Daddysman not to take the wheelchair because he had not completed physical therapy and the rehabilitation program. Id. Plaintiff also stated that “medical overrides custody.” Id. Further, Allen “pleaded” with Barrera and reported to Barrera that his legs were still weak. In addition, he alleged that he stood to show the doctor the weakness in his legs and Barrera responded, “‘I know.'” Id. Nevertheless, in a “threatening and hostile manner, ” Daddysman took the wheelchair. Id. According to plaintiff, the incident was “cruel and humiliating.” Id.
Daddysman then instructed plaintiff to leave the medical unit. Allen claimed that he was “scared and afraid, ” and he was “forced to walk back to [his] building in excruciating pain.” ECF 22-1 at 7. Before Allen left, he told the doctor that the doctor needed to give him a walker or a cane. Plaintiff stated that Barrera did not respond and “appeared afraid.” Id.6 Daddysman said: “‘We don't have to give you shit, now man up and get out of here.'” Id.
FN6 in ECF 33 Plaintiff indicates in his “Motion to Amend/Supplement Plaintiff's Complaint” (ECF 26) that Barrera acted “out of fear, deprived [him] of an instrument that was ordered for [him] by a superior agent, to use as part of [his] rehabilitation.” Id. at 1.
Barrera advised plaintiff that he would renew his pain medication. Id. Daddysman became more hostile and plaintiff was in fear of being attacked, so he left and walked back to his housing unit “in terrible pain.” Id. Once Allen was back at the housing unit, he asked for assistance from officers in the building but was told that he had to write medical and that the sergeant, with no medical training, took the wheelchair because he saw plaintiff playing basketball. ECF 22-1 at 7.
Plaintiff also reported in the ARP that he suffers from herniated discs, nerve damage and multi-level degenerative disc disease and was to continue receiving physical therapy and rehabilitation services. Id. at 7. He stated that because he had no wheelchair he missed several meals, due to the pain from the long walk to the chow hall and back. Further, he stated that he cannot receive a feed-in tray unless authorized by medical so he was forced to survive on bread, water, and coffee. Id. In his view, he has been “treated with absolute cruelty.” Id.
In his attachment to his opposition (ECF 22-2), plaintiff also complains about the lack of adequate medical care. For example, he indicates that after the events of October 26, 2015, he had a swollen face and experienced considerable pain throughout his body. Yet, he complains that he was not seen by sick call until a week later, on November 1, 2015. Id. at 2. Further, he maintains that he was not seen by a registered nurse until November 24, 2015, 7 and that he was never seen by a doctor regarding his condition. Id. at 2. He adds: “I was made to suffer from lack of medical attention and pain . . . .” Id. In addition, Allen points to injuries he sustained on November 16, 2015. Id. And, he asserts that he was “denied medical treatment.” Id.
FN7 in ECF 33 In other documents attached to his opposition, Allen indicates that he was seen by a physician's assistant on November 16, 2015, while housed at JCI. ECF 22-2 at 4.
Plaintiff also points out that he was taken to Bon Secours Hospital on November 5, 2015. According to Allen, this revealed that he suffered nerve impingement and spondylitis. Id. According to plaintiff, documents were removed from his medical file to conceal the findings of the electromyogram. Id.
Attached to his motion to amend (ECF 26), plaintiff has provided a copy of a medical report dated November 24, 2015. ECF 26-1. It indicates that Allen's wheelchair was returned to him on that date for use in traveling long ...

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