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McManus v. Moss

United States District Court, D. Maryland

February 27, 2019


          Ellen L. Hollander United States District Judge


         Plaintiff 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.[1] McManus seeks $75, 000 in damages. Id. at 5.

         Service of the suit was not obtained on Defendant Jane Doe.[2] 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.

         No. hearing is necessary to resolve the motions. Local Rule 105.6.

         I. Factual Background

         The following facts are not in dispute.

         On 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[3] for pain, and that he file a sick call slip to see a physician's assistant. Id.

         Carl 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.

         Oltman 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).

         On 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[4] since December 18, 2014. ECF 1-1 at 4.

         On March 16, and 23, 2015, Moss treated the “wart” with Podocon-25. ECF 1-1 at 5, 6. Mike Romain, P.A.[5]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.

         Moss 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.[6]

         Almost 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.[7]

         Further, 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.

         On 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.[8] 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.

         Margaret 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. Id.

         McManus 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.

         II. Plaintiff's Allegations

         McManus 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.

         On 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.

         After 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.[9] 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.

         In 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.

         McManus 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.[10] 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 physician. Id.

         III. Defendants' Exhibits

         In 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 condition.

         Dr. 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. Id.

         Dr. 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.” Id.

         Regarding 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.

         Further, 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 process. Id.

         IV. Nondispositive Motions

         A. Plaintiff's Supplement and Defendants' Motion to Strike

         After 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.

         The 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.

         Defendants 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.[11] 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.

         I agree 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.

         B. Second Motion to Appoint Counsel

         McManus 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 ...

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