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Mouzone v. Barrera

United States District Court, D. Maryland

February 5, 2019

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



         Tavon Mouzone, a self-represented Maryland prisoner, filed a civil rights suit against Robustiano Barrera, M.D. and Mahboob Ashraf, M.D.[1] He alleges the denial of constitutionally adequate medical care. ECF 1.

         Defendants have filed a motion to dismiss or, in the alternative, for summary judgment (ECF 11), supported by a memorandum (ECF 11-1) and many exhibits (collectively, the “Motion”). Plaintiff has filed an opposition (ECF 15) as well as a memorandum (ECF 15-1). Defendants replied (ECF 16) and filed another exhibit.

         No hearing is necessary to resolve the motion. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, I shall construe the Motion as one for summary judgment and I shall grant it.

         I. Factual Background

         A. Plaintiff's allegations

         Plaintiff alleges that after undergoing shoulder surgery in 2017 he was denied pain medication, a front cuffing order, and bandages. ECF 1 at 8. In support of his claim, he explains that from 2015 to 2017 he complained of back, neck, and shoulder pain. Eventually, on an unspecified date, after x-rays and medication did not resolve the issues, he was referred to Ray Carls, M.D., an orthopedic specialist. ECF 1 at 3.

         In May of 2017, plaintiff was prescribed pain medication by Krista Swann to treat the chronic pain in his left shoulder and neck. The prescription expired on July 16, 2017. On July 18, 2017, plaintiff was transported to Western Maryland Medical Center for surgery. Plaintiff states that he was advised that he would undergo a procedure on his left shoulder rotator cuff[2] but, when he awoke from surgery, he was advised by custody staff that the procedure was done on his collar bone and his surgical scar crosses his collar bone. Id.

         Plaintiff was returned to the Western Correctional Institution (“WCI”) infirmary for post-surgical observation. On July 19, 2017, at approximately 10:00 p.m. he was given an injection for pain relief and was told that he would receive a shot every 8-12 hours until his prescription arrived. Id. at 3. The following morning, he was examined by “Dr. Barrera and given another shot.” Id. at 4. Barrera approved his discharge from the infirmary and return to the North Branch Correctional Institution (“NBCI”), which occurred that afternoon. Id.

         Plaintiff states that he received no pain medication until the afternoon of July 22, 2017, when custody staff called the medical office on his behalf. The officers explained the urgency of plaintiff's situation and he was escorted to the main building, where he was seen by medical staff and provided a shot of pain medication. Id. When plaintiff explained the situation to Nurse Travis, Travis allegedly responded: “How we suppose to give you a shot every 8-12 hrs. and we don't even have the staff for that.” Id.

         Plaintiff reports that he was again escorted to the same building for another shot during the 11 p.m. to 7 a.m. shift. According to plaintiff, he advised unidentified medical personnel that the injection was not working. Id. at 4.

         Further, Mouzone claims that on July 23, 2017, he received an injection in the morning. But, he did not receive another shot until the night of July 26, 2017. At that time, the nurse advised plaintiff that his Ultram had not arrived, but she was directed to give him two pills of Tylenol with Codeine. Id. at 5. On July 27, 2017, plaintiff again did not receive any pain medication. From July 28 to August 1, 2017 he received morning and nighttime doses of Ultram. Thereafter, no pain medication was provided. Id.

         During this time, plaintiff filed sick call slips in an effort to receive adequate pain medication and in order to receive “front cuff paper work.” Id. On August 12, 2017, in response to his girlfriend calling and speaking with Dr. Hassan and Bill Beeman, plaintiff was seen by a nurse. However, the nurse could not prescribe pain medication or provide paperwork regarding the cuffing and referred plaintiff to Dr. Ashraf. Id. On August 16, 2017, “defendant [presumably Dr. Ashraf] refused to provide [plaintiff] pain meds or front cuff paperwork. Instead the defendant opted to provide [plaintiff] a low grade muscle relaxer called Baclofphin.” Id.

         In explanation for plaintiff's desire for a front cuffing order, he states that when he returned to NBCI from his surgery he was placed in Housing Unit 1, the Special Needs Unit (“SNU”). When an inmate in the SNU is removed from his cell, he must be placed in restraints. Id. at 5-6. Despite the lack of a medical order to be front cuffed, the officers cuffed plaintiff in front because it was obvious that he just had surgery. Id. at 6. This continued until August 31, 2017, when Sgt. Gamel advised plaintiff that “medical specifically told him, ‘not to front cuff me no more.'” Id. Plaintiff submitted numerous sick call requests seeking a front cuff order but was not seen. Id.

         In addition, plaintiff alleges that after his surgery he did not receive proper bandage changes. Id. He was instructed not to remove his bandages for the first 48 hours after surgery. He states that he went two weeks without a shower due to his fear of contracting an infection from the shower. Id. He explains that the SNU houses segregation inmates as well as inmates with mental health issues who, in various areas of the prison, including the showers, regularly use bodily waste as weapons against other inmates and staff and/or “just play in” the waste. Id. at 6-7. The showers on the SNU are cleaned once a day, after all of the inmates have utilized them, by sanitation workers who do a poor job. Id.

         Plaintiff indicates that using the showers posed a risk of harm to him due to the possibility of there being life threatening bacteria and given that the showers have black mold. Id. at 7. He explains that he would have been forced to use a shower with a fresh open wound after numerous inmates used the shower, without the shower being properly cleaned, and without his having access to anti-bacterial cream or fresh gauze to properly clean and wrap his wound. Id. Accordingly, plaintiff felt the best way to protect himself was not to go into the “contamination.” Id.

         B. Defendants' Response

         In support of their Motion, Drs. Barrera and Ashraf submitted various exhibits, including their own affidavits, relevant portions of plaintiff's medical records, and the commissary menu describing over the counter medications available to plaintiff. ECF 11-2 (Discharge Instructions); ECF 11-3, ECF 11-6, ECF 11-7, ECF 11-8; ECF 16-1 (Medical Records 7/18/17-10/19/17); ECF 11-4 (Medical Diet Commissary Menu); ECF 11-5 (Ashraf Affidavit); ECF 11-9 (Barrera Affidavit).

         Plaintiff was admitted to the WCI Infirmary on the evening of July 18, 2017, in preparation for left shoulder surgery the following day. ECF 11-6 at 2-4; ECF 11-3 at 6. Plaintiff underwent arthroscopic surgery on his shoulder on July 19, 2017. ECF 11-5, ¶3; ECF 11-6 at 5, 8; ECF 11-9, ¶ 3. It was performed by an outside physician, Roy Carls, M.D. See, e.g., ECF 11-3 at 6; ECF 11-6 at 2.

         The discharge instructions, signed by plaintiff on July 19, 2017, provided that plaintiff could shower in 24 hours, he was to have ice and NSAIDs (non-steroidal anti-inflammatory drugs, e.g., ibuprofen, acetaminophen), a sling, and to begin occupational therapy exercises. ECF 11-2 at 2. He was to follow up with Dr. Carls at the next orthopedic clinic at the prison. Id. Dr. Barrera discharged plaintiff from the WCI infirmary on July 20, 2017. ECF 11-5, ¶ 3; ECF 11-9, ¶ 3.

         Mouzone returned to the WCI infirmary the day of the surgery. ECF 11-6 at 5. At that time, Dr. Barrera gave verbal orders that plaintiff be held in the infirmary for 23 hours, and that he receive 600 mg of Motrin every 6 hours, as needed. Id. The prescription for Motrin was valid from July 18, 2017 to July 26, 2017. ECF 11-3 at 3. That night, plaintiff reported that his arm “really hurt, ” and he asked if he could have anything for pain. ECF 11-6 at 7. Dr. Ashraf ordered an injection of Toradol immediately, and then another shot in 12 hours, as needed, until the arrival of plaintiff's prescription for Ultram. Id.[3]

         Dr. Ashraf avers that, given plaintiff's discharge instructions, and based on his medical training and expertise, plaintiff did not require higher levels of pain relievers, such as the narcotics plaintiff referenced in his compliant. ECF 11-5 at 2, ¶ 4. Dr. Ashraf states that although the higher level pain relievers were not medically necessary, “as a matter of courtesy, ” plaintiff was provided some narcotic pain medication for the first two days after the surgery and an order was placed for narcotic pain medication for the two weeks after the surgery. ECF 11-5 at 2-3, ¶ 6. Ashraf explains that he has no control regarding whether a medication is provided to a patient by the pharmacy. ECF 11-5 at 3 ¶ 7. Plaintiff was permitted to purchase NSAID pain relievers through the prison commissary. ECF 11-5 at 2, ¶ 5; ECF 11-4 at 2.

         Dr. Barrera avers that his only interaction with plaintiff during the time period at issue in the complaint was when he discharged plaintiff from the infirmary on July 20, 2017. ECF 11-9 at 2, ¶ 4. At the time of discharge it was noted that “pain medication is effective, ” plaintiff was to be seen by Dr. Carls at the next orthopedic clinic, and a request for physical therapy ...

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