United States District Court, D. Maryland
L. Hollander United States District Judge
Pevia, a self-represented Maryland prisoner confined at the
North Branch Correctional Institution (“NBCI”),
filed suit under 42 U.S.C. § 1983 against Wexford Health
Sources, Inc. (“Wexford”) and Ali Yahya, M.D. ECF
1. He alleges the denial of constitutionally adequate medical
is a renewed motion to dismiss or, in the alternative, for
summary judgment filed by Wexford and Yahya. ECF
It is supported by a memorandum (ECF 29-3) (collectively, the
“Motion”) and exhibits. Plaintiff opposes the
Motion (ECF 31; ECF 37) and submitted exhibits. Defendants
filed a reply. ECF 33.
hearing is necessary to resolve the motion. See
Local Rule 105.6 (D. Md. 2016). For the reasons that follow,
defendants' Motion, construed as one for summary
judgment, shall be granted.
explains that in 2006, before his incarceration, he injured
his knee playing basketball, suffering a dislocation,
fracture, and torn ligaments. ECF 1 at 3. He claims that the
torn ligaments caused his knee to “constantly slip
out of place.” According to plaintiff, between 2013 and
2016, he “has complained about his knee.”
Id. Plaintiff alleges that in February 2013, he was
seen by medical staff at NBCI due to his complaints that his
knee “constantly slipp[ed] out of place and swell[ed]
to the size of a softball.” Id. Plaintiff
states that an x-ray was ordered and, on an unspecified date,
he was provided a steroid injection. Id.
of 2016, plaintiff's knee again slipped out of place and
“swelled up.” Id. He was seen by RNP
Krista Swann. Id. at 4. X-rays were ordered, which
showed that plaintiff's knee had multiple bone spurs and
that the space within his knee was decreased. Id.
There were also three “large lumps” on his knee.
Id. Pain medication was prescribed. Id.
request was made for plaintiff to be seen by an orthopedist.
However, it was denied by Wexford's review process.
Id. at 5. Instead, on September 15, 2016, it was
recommended that plaintiff undergo a steroid injection.
Id. Plaintiff was advised that only Dr. Yahya could
override the decision. Id.
saw Dr. Yahya for the injection on October 29, 2016.
Id. Plaintiff states that Yahya advised him that the
referral to an orthopedist was likely denied because
plaintiff could still walk. Id. at 6. Plaintiff
asked if Dr. Yahya could order the consultation but he said,
“no.” Id. Yahya provided the injection
(id. at 6-7) and ultimately plaintiff developed an
infection at the injection site, which required additional
treatment. Id. at 7-8. Another request for plaintiff
to be seen by an orthopedist was submitted in November of
2016. Id. at 8. Plaintiff complains that knee
surgery should have been provided.
support of their Motion, defendants submitted various
exhibits, including the affidavits of Robustiano Barrera,
M.D. and Asresahegn Getachew, M.D., and relevant portions of
plaintiff's medical records from February 26, 2013
through February 2, 2018. ECF 15-4 (medical records); ECF
15-5 (Barrera Affidavit); ECF 29-4 (medical records); ECF
29-5 (Getachew Affidavit).
medical records reflect that he has a history significant for
Hepatitis C Virus, hypertension, shoulder pain/dislocation,
and left knee pain. ECF 29-5, ¶ 3. Relevant to the
allegations raised in this case, on February 26, 2013,
plaintiff was evaluated by Colin Ottey, M.D., due to
plaintiff's complaints of sharp pain in his left knee.
ECF 29-4 at 2. Plaintiff explained that he twisted his knee
five days earlier. Id. His knee was swollen,
exhibited a decreased range of motion, and tenderness over
the medial aspect. Id. Plaintiff was prescribed
Ibuprofen and Tylenol-codeine No. 3. Id. He was
directed to elevate the knee and to use a wheelchair for one
week. Id. at 3. Dr. Ottey also ordered an x-ray of
the knee and directed plaintiff to follow up in two weeks.
Id. The x-ray, taken on March 5, 2013, revealed mild
degenerative changes in plaintiff's knee with no evidence
of fracture, dislocation, or subluxation. Id. at 7.
following day, plaintiff submitted a sick call slip seeking
the results of his x-ray, extra support for his knee, and
renewal of his medications. ECF 29-4 at 8. Dr. Ottey examined
plaintiff on March 9, 2013. Id. at 9. At that time,
plaintiff reported the pain in his knee had improved, but
remained swollen and stiff. Plaintiff also reported tingling
in his toes when his leg hung from a seat. Id.
Examination showed tenderness and moderate pain with motion.
Dr. Ottey did not observe any swelling. Id.
Plaintiff's prescription for Tylenol-codeine No. 3 was
renewed and plaintiff was directed to return in two weeks.
Id. at 9-10.
March 15, 2013, plaintiff was evaluated by Greg Flury, PA in
the chronic care clinic. ECF 29-4 at 12. Flury noted that
plaintiff was not due in the chronic care clinic at that time
and would be rescheduled. He also noted that plaintiff
“denie[d] current complaints” and described
plaintiff as in no acute distress and walking unassisted with
a normal gait. Id.
again evaluated plaintiff on March 25, 2013, in response to
plaintiff's sick call complaining of knee pain.
Id. at 13. Plaintiff advised Flury of his history of
“knee pain due to previous t[reatment]” and
denied any recent injury. Id. The pain increased
with flexion. Id. Flury reviewed the recent x-rays
which showed mild degenerative changes. Id. Flury
also noted “osteochondral prominence of inferior left
patellar pole and tibial tubercle. No. effusion. Test[ing]
joint laxity negative.” Id. He prescribed
Indomethacin and referred plaintiff for consideration of an
injection to the left knee. Id. at 14.
April 30, 2013, plaintiff was seen by Renato Espina, M.D.,
who aspirated the knee and injected it with a steroid. ECF
29-4 at 15. Plaintiff tolerated the procedure well.
plaintiff was seen by medical providers over the next three
years, he did not again complain of knee pain until February
of 2016. ECF 29-5, ¶ 6; ECF 29-4 at 16-20.
February 3, 2016, plaintiff was evaluated by Taylor
Hershberger, RN for his complaint of left knee pain. ECF 29-4
at 23. Plaintiff told Hershberger that his “knee keeps
slipping out of place which is caused from torn ligaments.
I'm having severe pain in my knee. I'm requesting an
MRI for possible surgery.” Id. Hershberger
observed that plaintiff was able to complete the range of
motion exercises and there was no swelling in the knee. He
walked into the examination room with a steady gate and was
able to get on and off the exam table without difficulty. He
had a current prescription for Mobic and he was encouraged to
complete stretching exercises and to apply warm/cool
compresses as needed. Id. Approximately one week
later, plaintiff submitted a sick call slip, asking to see
the doctor and for an MRI, due to his knee continuing to slip
out of place even when wearing his knee brace. Id.
at 26. He submitted a second sick call slip the following
week, complaining of sharp pain in his knee, which he
attributed to the torn ligament and sought referral for an
MRI. Id. at 27. He noted that he had already been
provided an x-ray and cortisone shot and the knee brace did
not sufficiently hold the knee in place. Id. He also
requested renewal of his bottom bunk status. Id.
February 20, 2016, plaintiff was evaluated by Tammy Buser,
RN. Id. at 28. Buser described plaintiff as walking
with a steady gait but also as having poor range of motion in
the knee and pain below the knee “cal.”
Id. Plaintiff had active prescriptions for pain
medications and his bottom bunk status was renewed.
response to plaintiff's sick call slip dated June 11,
2016, asking to have his bottom bunk status renewed and to
see medical regarding his knee (ECF 29-4 at 30), plaintiff
was seen by Krista Bilak, RNP on June 14, 2016. Due to
plaintiff's chronic knee and shoulder disorders she
renewed his medical assignment to the bottom bunk.
Id. at 31. Pevia was directed to follow up if his
condition persisted or worsened. Id. at 32.
22, 2016, plaintiff was examined by Ricki Moyer, RN. ECF 29-4
at 34. Plaintiff advised that he had a torn medial tendon
prior to coming to prison and that he had been treated with
ice, elevation, and medication. He reported that “he
was exercising and ‘felt something snap' and his
knee is ‘messed up again'”. Id.
Moyer observed that plaintiff's gait was independent and
steady; his knee was moderately swollen; there was a bony
prominence in the area of the patella; and he had scarring
from possible surgery to the medial side of
patella. Id. He was directed to elevate
the area and apply ice/cool compresses. Id. He had
active analgesic pain prescriptions at that time. He was
referred to the provider for further evaluation and
treatment. Id. at 36.
Bilak, RNP evaluated plaintiff in the chronic care clinic on
July 2, 2016. ECF 29-4 at 37. Relavant to his knee, she
noted: “Pt has old injury to left knee in
2006-posterior spurring medial tibial plateau-fracture of
medial tibia. Pt reinjured knee 1 week ago. Unable to place
weight on left leg. Reports knee gives out and
dislocates.” Id. at 38. She also observed that
plaintiff's left knee was swollen and he experienced
severe pain with motion. She wrote, “Pt appears
deformed. Unable to palpate any area of the patella. Can not
weight bear.” Id. His pain medication,
including Mobic, Baclofen, Tramadol, and Tylenol-codeine No.
3, were continued. Bilak ordered an x-ray of plaintiff's
knee and directed him to return in one week for follow-up.
Id. at 38-39.
returned to Bilak on July 13, 2016. ECF 29-4 at 40. The
results of the x-ray showed “degenerative changes with
reduced joint spacing and osteophytes.” Id.
Bilak noted that plaintiff complained of worsening pain and
that his knee was unstable, locked-up, and clicked with
movement. Id. She also observed that plaintiff
suffered from weak knee muscles and moderate pain with
movement. Id. At that time, plaintiff was receiving
pain medication and wearing a knee sleeve.
requested referral of plaintiff to orthopedics. Id.
at 40-41. However, on September 15, 2016, the request for
orthopedic consult was denied, pursuant to Wexford's
review process, in favor of a steroid injection. ECF 31-3 at
August and September of 2016, plaintiff was seen by various
medical providers regarding his dislocated shoulder. He did
not express any concerns about his knee during those visits.
ECF 29-4 at 42; ECF 15-4 at 15-18.
again examined plaintiff in the chronic care clinic on
October 6, 2016. As to his knee injury she noted that he
suffered from chronic left knee pain and had an abnormal
x-ray of the left knee. ECF 29-4 at 45. She observed that
plaintiff walked with a limp and there was swelling of the
left patella. Id. Plaintiff's pain medications
were renewed, and an order was entered referring plaintiff to
a provider regarding his left knee pain and to Dr. Yahya for
an injection in the left knee. Id. at 46. On October
29, 2016, Dr. Yahya aspirated plaintiff's knee and
injected steroids. ECF 15-4 at 23.
one week later, Krista Bilak, RNP evaluated plaintiff. He
reported worsening pain in his knee, as well as increased
instability, locking, and clicking. Id. at 24. He
also reported difficulty with climbing stairs and walking.
Bilak noted that the x-rays showed degenerative changes with
reduced joint space and osteophytes; the request for an
orthopedic consult submitted in July had been denied in favor
of steroidal injection which occurred; and plaintiff reported
an increase in pain. Id. Additionally, he developed
an infection at the injection site. Id. His
medications were renewed, he was prescribed antibiotics, and
he was referred for physical therapy. Id. at 25.
also renewed the request that plaintiff be provided an
orthopedic consult. Id. at 26-27. Notably, on
November 17, 2016, the request was approved. Id. at
28. In the meantime, plaintiff continued to be seen by
medical providers throughout November and December of 2016.
Id. at 30-35.
December 29, 2016, plaintiff was examined by Roy Carls, M.D.
Plaintiff told Carls that he dislocated his knee playing
basketball ten years ago, with an additional history of a
fracture medially on his knee. Throughout the years he had
pain in his left knee and reported that he had been unable to
participate in activities. He reported the knee felt unstable
on a regular basis. ECF 15-4 at 35. After examining
plaintiff, Carls noted that it was “[l]ikely he has
soft tissue injury to his left knee which is chronic,
possibly the medial collateral ligament and also the ACL.
Likely he has a medial meniscus tear as well. He does have
some accompanying arthritis as well.” Id.
Carls ordered an MRI and directed plaintiff to follow-up with
him after the MRI to discuss treatment options. Id.
January 18, 2017, Bilak submitted the request for the MRI
ordered by Dr. Carls. Id. at 36-39. The request was
approved a few days later, on January 26, 2017 (id.
at 40), and ...