United States District Court, D. Maryland
L. Hollander United States District Judge
Kleatus McManus, a self-represented Maryland prisoner, filed
a civil rights suit on March 26, 2018 (ECF 1), along with
exhibits. He alleges that he was provided inadequate medical
treatment in 2015 with regard to a mole on his upper
lip. McManus seeks $75, 000 in damages.
Id. at 5.
of the suit was not obtained on Defendant Jane
Doe. However, defendants John Moss, P.A.;
Carl Oltman, P.A.; and Wexford Health Sources, Inc.
(“Wexford”) have moved to dismiss or, in the
alternative, for summary judgment. ECF 11. The motion is
supported by a memorandum (ECF 11-3) (collectively, the
“Motion”) and exhibits. McManus was notified of
his right to file an opposition to defendants'
dispositive motion, along with supporting exhibits and
declarations. ECF 12. In response, he filed a
“Declaration of Medical Documentation To Support Claim,
” with exhibits. ECF 16. I shall construe the
submission as an opposition. Also pending are defendants'
Motion to Strike (ECF 17), and McManus's motions for
discovery, to appoint counsel, and to proceed in forma
pauperis. ECF 17; ECF 18; ECF 20; ECF 21.
hearing is necessary to resolve the motions. Local Rule
following facts are not in dispute.
February 26, 2015, McManus submitted a sick call slip for a
bleeding mole on his upper lip. ECF 11-4 at 3. Imelda Ohiri,
R.N., examined McManus the same day. ECF 1-1 at 2. McManus,
who was then 40 years old, reported that he had the mole for
27 years. He estimated his pain as 3/10. Id. Ohiri
observed that the mole measured about 2 cm and there was
minimal bleeding. Id. Ohiri cleaned the area and
applied bacitracin, an antibiotic cream. She recommended that
McManus continue to use 800 mg. Motrin, previously
prescribed for pain, and that he file a sick
call slip to see a physician's assistant. Id.
Oltman, P.A., examined McManus on February 28, 2015, for a
bleeding “lesion” on his face. ECF 1-1 at 3.
McManus indicated that the lesion was on his face “all
[his] life.” Id. McManus also reported
bleeding when he washed his face. Id.
observed that the lesion was on the right side of the face,
oval, isolated, localized, and stable. Id. He
assessed it as an “irritated nevus.”
Id.; see also ECF 11-3 at 2, n. 2 (defining
a mole or nevus as a small congenital spot on the skin that
is usually dark in color and slightly elevated). Oltman
prescribed a 30-day treatment of Podocon-25 (podophyllin).
ECF 1-1 at 3; see also ECF 11-3 at 2, n. 3
(describing Podocon-25 as composed of Podophyllin 25% in
Benzoin Tincture and used to remove genital warts).
March 3, 2015, Oltman applied podophyllin to the
“wart” on McManus's upper right lip. ECF 1-1
at 4; ECF 11-3 at 2, n. 4 (defining “wart' as a
small harmless tumor of the skin caused by the human
papilloma virus or “HPV”). The medical note also
indicates that McManus had chronic reflux esophagitis and had
been prescribed Prilosec since December 18, 2014. ECF 1-1 at
March 16, and 23, 2015, Moss treated the “wart”
with Podocon-25. ECF 1-1 at 5, 6. Mike Romain, P.A.treated the
“wart” with Podocon 25 on March 25, 2015. ECF 1-1
at 7. On March 27 and April 1, 2015, Moss treated the
“wart” with Podocon 25. ECF 1-1 at 8, 9. On the
copy of the medical notes for April 1, 2015, which McManus
filed with this Court, he wrote: “PA John Moss
continued to apply application of Podocon-25 (Acid) despite
the Podocon-25 treatment ended 3-28-15.” ECF 1-1 at 9.
Moss again treated the mole with Podocon-25 on April 2, 6, 8,
22, 2015. ECF 1-1 at 10-13.
cauterized and removed McManus' “lesion” on
April 29, 2015, and he sent a specimen of it to the lab for
identification. ECF 1-1 at 9; ECF 11-5 (Aff. of Jason Clem,
M.D.), ¶ 6.
one year later, on April 20, 2016, a nurse who was dispensing
medications found McManus unresponsive. Andrew Moultrie, M.D.
was called to examine McManus. Moultrie wrote the following,
in part, with regard to the “urgent” medical
“visit, ” ECF 11-4 at 19:
The patient was found lying down face up, eyes closed, easily
aroused by tactile stimulation (sternal rub). There was no
confusion. He states that he had been short of breath and was
not able to breath [sic] due to his nose. He stated that he
has been having problems breathing out of his nose for the
past 10 month. [sic]. He did not admit to passing out. He had
no issues with breathing or swallowing. He was able to sit up
with assistance and get up on his feet on his own power.
Patient stopped receiving Prilosec around the time that his
nasal issues started. Will restart Prilosec 20 mg. for 4
months. Flonase also given.
Moultrie noted that McManus had suffered no loss of
consciousness and was “known for manipulation.”
ECF 11-4 at 19. Moultrie diagnosed McManus as having chronic
reflux esophagitis and chronic rhinitis. Id. at 20.
October 6, 2016, Deborah Tabulov, N.P., saw McManus at
Eastern Correctional Institution (“ECI”) for
management of his lower back pain and nasal congestion.
McManus informed Tabulov that he had been unable to breathe
from his nose since undergoing surgery on his lip about one
year ago and that is why he uses Flonase and
Aprodine. The physical exam revealed McManus
had swollen (edema) nasal mucosa (membrane) and moderate
increase in size (hypertrophy) to the turbinates (enlarged
turbinates, a part of the nose, can cause nasal obstruction).
ECF 11-4 at 21-22; ECF 11-3 at 3, nn. 5-7.
Vickers, R.N., saw McManus at ECI for complaints of chest
pain. ECF 11-4 at 24. McManus admitted to Vickers that he did
not have chest pain, but instead wanted the Neurontin dose he
had missed that morning. Id. McManus did not want
Vickers to continue the assessment for back pain. He started
yelling, appeared threatening, and returned to his cell.
also submitted several sick call slips. On March 30, 2016, he
filed a sick call slip complaining of “very bad
allergies” that were making it hard for him to breathe.
He also complained of a rash on his head, chest, and face,
caused by soap that was drying to his skin. ECF 11-4 at 25.
On July 1, 2016, he filed a sick call slip asking to see the
test results for the specimen from the mole and “the
results of his x-ray.” He indicated this was his third
request and that next time he would file a complaint.
Id. at 26. On March 15, 2017, McManus complained of
trouble breathing due to “sinus allergies.”
Id. at 27.
complains that he sustained injury because the mole on his
lip was misdiagnosed by defendants Oltman and Moss. He
asserts Oltman diagnosed the mole as a lesion, started
treating it by “burning it off with a daily application
Podocon-25, ” and continued this treatment even after
he changed his diagnosis from lesion to wart on March 3,
2015. ECF 1 at 3. Further, McManus complains that Moss
continued Podocon-25 applications for 22 days beyond the
initial 30-day treatment period.
April 29, 2015, Moss removed a small part of McManus's
mole to send for analysis, and then extracted the remainder
of the mole and cauterized the wound, assisted by “Jane
Doe, ” who applied pressure to stanch the bleeding. ECF
1 at 4. McManus alleges that during the procedure he told
Moss that he was in pain, and Moss replied, “Look! I
got to get that sucker out of there before you bleed to
death, I know it hurts but I am almost done. Just hold on a
little longer, your [sic] a soldier.” ECF 1 at 4.
the procedure, McManus informed Moss “several
times” about numbness and spasms on the right side of
his face and “other complications.” ECF 1 at
4. Moss advised McManus that numbness and
spasms were common and normal after surgery, there was
nothing he could do at that time, and recommended McManus
continue taking the muscle relaxer prescribed for him to help
with the spasm. Id. McManus alleges that Moss
retired approximately two weeks later. Id.
addition, McManus alleges that he complained to several other
physician's assistants about his condition by submitting
sick call slips and discussing his concerns in the chronic
are clinic, but he received no help to stop the spasm and
nerve damage. McManus does not provide any evidence in
support of these contentions.
maintains that he was denied adequate medical care because
the mole was improperly diagnosed and as a result, he had to
undergo three painful medical procedures that caused injury
to his face. He faults Moss for failing to take
an x-ray of the mole to determine its depth. ECF 1 at 4.
Moreover, McManus avers that he should have been referred to
a dermatologist. Further, he asserts that the procedure
should have been performed under the supervision of a
support of defendants' Motion (ECF 11), defendants
submitted verified copies of McManus's medical records
(ECF 11-4) and an affidavit from Jason Clem, M.D., a licensed
physician. ECF 11-5. Dr. Clem attests, in part, id.
¶ 5 (emphasis added):
Plaintiff's allegation that his condition was
misdiagnosed because it was alternatively labeled a lesion,
mole and wart is incorrect. Use of the word lesion simply
referred to the fact that it was bleeding. A mole, or in
medical terms a nevus, is simply a discoloration of the skin,
sometimes accompanied by a slight thickening of the skin
caused by a papillomavirus and also other similar
benign conditions such as verruca. Plaintiff's
conditions could be described as a mole or a wart. Podocon-25
is appropriate to treat a wart, however, as in
Plaintiff's case, it sometimes fails to resolve the
Clem explains that after the course of Podocon-25 treatment
did not resolve plaintiff's condition, Moss cauterized
the wart. Id. ¶ 6. He opines, id.:
“This was an appropriate treatment plan for the
condition.” Further, Clem attests that plaintiff
“never submitted a single sick call slip complaining
that cauterization caused him to have numbness or spasms in
his face, or of pain in the affected area.” Nor did
McManus complain of facial numbness or spasms to health care
providers at chronic care or at sick call visits.
Id. Other than the sick call slip in which McManus
initially complained that the mole was bleeding, his only
other mention of the mole was to request the biopsy results.
Clem opines that, to a reasonable degree of medical
probability, cauterizing a lip wart would not cause facial
numbness or facial spasms. Id. ¶ 7. Clem also
disputes McManus's allegation that the wart should have
been x-rayed and required a physician or dermatologist to
treat it. Id. ¶ 8. In Dr. Clem's view,
“cauterizing a wart is well within the competency of a
mid-level provider.” Id. Moreover, Dr. Clem
observes that after the wart was cauterized, McManus never
complained to medical personnel of the condition, and thus it
appears that the procedure was “successful.”
McManus's allegation of breathing problems, Dr. Clem
states that it is “extremely unlikely” that the
cauterization caused McManus to be unable to breathe through
the nose. ECF 11-5, ¶ 9. Clem notes that nasal
obstruction is a fairly common problem, which can be caused
by problems including allergies and narrow nasal passages.
McManus has both allergies and moderate turbinate
hypertrophy, which Dr. Clem opines is the likely cause of his
nasal obstruction. Id.; see also ECF 11-4
at 21-22, 27.
Dr. Clem states that McManus continues to be seen regularly
at the chronic care clinic. ECF 11-5, ¶ 11. And, he has
access to medical staff at all times via the sick call slip
Plaintiff's Supplement and Defendants' Motion to
defendants filed their Motion, McManus submitted a
Declaration, with three exhibits, labeled Exhibits A, B, and
C. He declared that the exhibits provide “expert
facts” that are “true and correct.” ECF 16.
The submission includes information about cancerous or
potentially cancerous moles, although there is no evidence
that the information applies to McManus.
first exhibit consists of: 1) one page of text from an
unknown source that discusses cancerous skin growths and
melanoma; 2) a medical note by John Moss, P.A. dated April
13, 2015, which indicates the wart procedure was completed
and McManus received medicine for back pain. ECF 16. The
second exhibit appears to be a continuation of the article of
unknown provenance in Exhibit A, and also includes a copy the
medical report completed by Oltman on February 28, 2015,
already discussed above. ECF 16. The third exhibit consists
of what appears to be the biopsy report of the specimen
removed by Moss, dated May 6, 2015. ECF 16. It describes the
specimen as an “intradermal meloncystic nevis with
surface erosion.” Id. at 6. Exhibit C also
contains copies of McManus's medical records, which are
already in the record and discussed above. ECF 16 at 8-11.
moved to strike the filing and the exhibits, as prejudicial.
ECF 17. They observe that plaintiff does not identify the
nature or purpose of the information. Further, they note that
the source of the text regarding cancerous growths is
unidentified, and McManus does not explain his reason for
submitting the biopsy report. ECF 17, ¶ 5. Defendants
also assert that a melanocytic nevus is benign tissue. ECF 17
at 2, n. 1. And, they argue that their
dispositive Motion is pending, and if plaintiff were to add
new allegations, this would require supplemental briefings
and submission, resulting in delay.
that McManus does not state with particularity his reasons
for the submission. Nonetheless, I discern no prejudice from
the filing. Given plaintiff's pro se status, I shall deny
the Motion to Strike.
Second Motion to Appoint Counsel
requests appointment of counsel, asserting that he is
indigent and unable to retain counsel; his imprisonment
limits his ability to litigate; the issues are complex; he
has limited access to the law library, he is unfamiliar with
the law; and counsel ...