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Gillis v. Driscoll

United States District Court, D. Maryland

August 29, 2018

OFFICER DRISCOLL,[1] et al. Defendants



         In response to this civil rights complaint, Correctional Defendants Officer Christopher, Officer Driscoll, and Warden Ricky Foxwell, along with Medical Defendants Bruce Ford, PA and Wexford Health Sources, Inc., filed Motions to Dismiss or in the alternative for Summary Judgment. ECF Nos. 13, 22 & 29. The Court informed Plaintiff that, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), failure to oppose Defendants' motion may result in dismissal of the Complaint. ECF Nos. 14, 23 and 30. Plaintiff has responded in part. ECF Nos. 17 & 18. The Court finds no hearing necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, Defendants' motions, construed as Motions for Summary Judgment, shall be GRANTED.

         I. BACKGROUND

         A. Plaintiffs Claims

         Plaintiff David Gillis, an inmate committed to the custody of the Maryland Department of Public Safety and Correctional Services (DPSCS) and currently confined in the Eastern Correctional Institution (ECI), brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants denied him adequate medical care in violation of his right to be free from cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Plaintiffs claims center on the removal of a bullet from Plaintiff's upper right arm, as performed by Physician's Assistant Bruce Ford on April 12, 2017. ECF No. 1 at p. 3. Before the procedure, Plaintiff questioned whether it should be performed at an outside hospital. Ford advised Plaintiff that the procedure would be performed at ECI by Ford who had been in the medical field for years at ECI. Ford further reassured Plaintiff he was in good hands. Id.

         According to Plaintiff, Ford first numbed Plaintiffs right arm above the elbow. For then used a surgical implement to cut into Plaintiffs arm and extract the bullet. ECF No. 1 at p. 3. Plaintiff avers that his arm began to bleed profusely and he grew worried. Id. Ford told Plaintiff that the bullet was stuck around a lot of cartilage and was not ready to come out. Id. Nevertheless Ford continued to cut deeper into Plaintiff's arm. Id. Plaintiff states that he advised Ford that he was experiencing excruciating pain and Ford administered additional medicine to further numb his arm. Id. Plaintiff alleges that "[Ford] continue[d] to damage the nerve in [Plaintiff's] right arm and cut [] away at the flesh trying to remove the bullet," showing "no concern for the damage he was causing." Id.

         Once the bullet was removed, Plaintiff asserts that Ford failed to clean the incision before stitching the wound and failed to provide Plaintiff analgesic medication or antibiotics to prevent infection. Id. Plaintiff asserts that Ford examined the incision several days later and told Plaintiff that a knot which had formed at the surgical site is scar tissue and should go away over time. ECF No. 1 at p. 4. Plaintiff responded that previous bullet removals did not result in a knot forming and asked to be sent to an outside hospital. Id.

         Plaintiff further asserts that as the anesthetic wore off, his arm began to hurt severely, and his hand ached when making a closed fist. ECF No. 1 at p. 3. As of May 11, 2017, Plaintiff asserts that his right arm remains numb and that the knot at the incision site is still present. Id. at p. 4. Additionally, Plaintiff claims that ECI failed to obtain his consent to perform the surgical procedure which is against ECI protocol. ECF 1 at p. 4. In his Amended Complaint filed on November 15, 2017, Plaintiff names Wexford Health Sources and Warden Foxwell as additional Defendants (ECF No. 16 at p. 1) and asserts that medical providers denied him Gabapentin[2] and Ultram[3] for pain relief. ECF No. 15 at p. 3.

         B. Defendants' Response

         Defendants submitted for the Court's consideration Plaintiff's verified medical record, along with the declarations of Officer Driscoll, Officer Christopher and Warden Foxwell. Plaintiff, therefore, was on notice that the Court may treat the motions as ones for summary judgment; the court "does not have an obligation to notify parties of the obvious." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998). Plaintiff does not challenge the authenticity, veracity or reliability of such records. Nor does he object to the Court considering such records in connection with Defendants' summary judgment motions. The Court, therefore, will treat the Defendants motions as ones for summary judgment and will consider the record evidence summarized below.

         Before the April 12, 2017 procedure, Plaintiff had seen Ford on two separate occasions for complaints of right elbow pain arising from a gunshot wound. ECF No. 29-2 at pp. 2, 4. At both visits, Ford noted that that a bullet fragment appeared close to Plaintiffs skin surface and would schedule an in-house surgical procedure to remove it. Id. Ford also documented that he had discussed with Plaintiff the possible risks associated with the procedure, to include "bleeding, infection, scarring, [and] failure to remove." Id. Plaintiff had been issued active prescriptions for Amitriptyline Hcl[4] and Gabapentin at the time of his appointments with Ford. Id. at pp. 3, 5.

         As to the procedure itself, the medical records reflect that on April 12, 2017, prior to the procedure, Plaintiff advised Ford that the fragment was causing him frequent pain. ECF No. 29-2 at p. 6. After Ford reviewed the risks associated with the procedure, the "site was prepped, lidocaine with epi [was] used, [and a] 2.5 cm incision was made." Id. Ford noted substantial scar tissue around the fragment, but observed no blood loss. Id. Three sutures were required to close the incision. Id. Plaintiff was directed to return in 10 days for suture removal. Id.

         Plaintiff returned to Ford four days later, on April 21, 2017, complaining of a "hard nodule and pain at [the] site." ECF No. 29-2 at p. 8. Ford assured Plaintiff that while he likely would experience improvement over time, removal of the fragment would not necessarily resolve all past all past associated medical symptoms. Id. Ford documented that he observed no signs of infection and directed Plaintiff to return the following week for suture removal. Id.

         On May 2, 2017, Nurse Nichole Frey removed the sutures. ECF No. 29-2 at p. 10. Frey described the wound was "well approximated" and healed with no signs of infection. Id. Plaintiff still maintained active prescriptions for Amitriptyline HCL and Gabapentin. Id. Plaintiff returned to Nurse Frey on May 17, 2017 with complaints of right elbow numbness and cramping. ECF No. 29-2 at p. 17. No. ...

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