United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendants Wexford Health
Sources, Inc. (“Wexford”), Mahboob Ashraf, M.D.,
William Beeman, R.N., and Ryan Browning,
L.P.N.'s (collectively, “Medical
Defendants”) Renewed Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment (ECF No. 21) and
Plaintiff Eric Von Poole's Motion for Injunctive Relief
(ECF No. 32). The Motions are ripe for disposition, and
no hearing is necessary. See Local Rule 105.6 (D.Md.
2018). For the reasons that follow, the Court will grant
Medical Defendants' Motion and deny Poole's Motion.
an inmate at North Branch Correctional Institution
(“NBCI”) in Cumberland, Maryland, had his right
hip replaced at the University of Maryland Medical System
(“UMMS”) on June 19, 2007. (Compl. at 1, ECF No.
1; Pl.'s Opp'n at 2, ECF No. 23).On January 16,
2017, Krista Bilak, CRNP, saw Poole for a chronic care
appointment. (Compl. ¶ 7). Bilak informed him of the
results of a report from orthopedic consultation he had at
UMMS. (Id.). The report, dated December 29, 2016 and
prepared by Roy J. Carls, M.D., indicates that Poole
underwent several hip surgeries in his youth, which
eventually necessitated a total hip replacement. (Defs.'
Mot. Ex. 1 at 1, ECF No. 16-4). It notes that the condition of
Poole's right hip replacement was worsening, and it
recommends that Poole see the UMMS orthopedists who performed
his hip replacement surgery. (Id.; Compl. ¶ 7).
March 22, 2017, Dr. Theodore Manson at UMMS saw Poole.
(Compl. ¶ 15; Defs.' Mot. Ex. 1 at 2-5). Dr. Manson
recommended that Poole participate in twelve weeks of
physical therapy, three times per week, and that Poole
receive a bone scan. (Compl. ¶ 15; Defs.' Mot. Ex. 1
at 2-5). The physical therapy was to include edema
management, active and passive range of motion, assisted
range of motion, resistance strengthening exercise,
stretching, gait training, development of home exercise
program, electrical stimulation, and ultrasound. (Defs.'
Mot. Ex. 1 at 4-5). Dr. Manson recommended a follow-up
appointment after the bone scan was performed. (Id.
at 2). Despite these recommendations, Poole states that
“the facility chose to again disregard the
[o]rder” and, as a result, he filed an Administrative
Remedy Procedure (“ARP”) (NBCI 0778-17) on April
20, 2017. (Compl. ¶ 15).
April 20, 2017, Poole began physical therapy at NBCI with
Physical Therapist Stephen D. Ryan. (Defs.' Mot. Ex. 1 at
8). Ryan measured Poole's range of motion, observed his
gait as within functional limits, and noted that his surgical
incision was well-healed, with no tenderness, swelling, or
bruising to the area. (Id.). Ryan noted that Poole
exhibited “marked reactivity” during some of the
assessment and questioned if this was possibly “symptom
magnification.” (Id.). Poole had another
physical therapy session with Physical Therapist Assistant
Lloyd Hott on April 25, 2017. (Id. at 9).
April 27, 2017, Hott saw Poole. (Id. at 10). Poole
reported his hip pain was a ten out of ten on the pain scale.
(Id.). At this appointment, Poole performed
isometric hip exercises and he was provided electrical
stimulation and ultra sound. (Id.).
Poole saw Hott again on May 2, 2017, he continued to rate his
pain as a ten out of ten, but Hott noted that Poole walked to
therapy. (Id. at 14). At this appointment, Poole
also said he was not going to tell Hott anything anymore
because he had read the notes from previous physical therapy
visits and saw that Hott documented what Poole had said.
(Id.). After Poole performed the exercises provided
as he could tolerate, he was given electrical stimulation and
ultra sound. (Id.).
11, 2017, Hott again provided physical therapy to Poole.
(Id. at 16). Poole reported at this appointment that
the pain in his right hip had increased since the last time
he was seen and described it as “throbbing in his
thigh.” (Id.). Poole performed the prescribed
physical therapy exercises and was provided a heat pack and
electrical stimulation at this appointment. (Id. at
18, 2017, Ryan re-evaluated Poole. (Id. at 18).
Poole told Ryan his symptoms had not improved, but Poole
exhibited some improvement in function during the evaluation.
(Id.). Ryan recommended six more physical therapy
sessions. (Id.). The goal of those additional
sessions was to increase the strength in Poole's right
hip, improve flexibility, and to develop a self-management
next day, Poole had a physical therapy session with Hott.
(Id. at 19). Poole had additional physical therapy
sessions with Hott on May 20 and 23, 2017; June 13, 15, and
27, 2017. (Id. at 20-27). Ryan saw Poole on June 29,
2017 for recertification of the order for physical therapy
sessions, and Poole reported some improvement in his
symptoms. (Id. at 28). Ryan noted that Poole was at
the “optimum level of functional mobility” and
that the “optimum benefit from PT [had been]
obtained.” (Id.). Poole's treatment plan
was to complete the current course of physical therapy and
establish a self-management program. (Id.).
3, 2017, when Poole went to physical therapy with Hott, he
complained that he was in a lot of pain because of the
evaluation he had with Ryan the previous week. (Id.
at 29). The session did not include exercises because Poole
said he was in too much pain to do them. (Id.). Two
days later, Poole gave a similar report. (Id. at
30). Hott noted that he felt Poole could benefit from the use
of some exercise machines to strengthen and stabilize his hip
without adding impact. (Id.). Hott's plan was to
speak with Ryan about that possibility. (Id.). On
July 7, 2017, Poole again reported that he was in too much
pain to participate in physical therapy. (Id. at
31). One week later, Krista Self, RNP, added a prescription
for Tramadol, a narcotic pain-reliever, to Poole's
medications. (Id. at 35).
24, 2017, Poole saw Dr. Ava Joubert-Curtis for his chronic
hip pain and hypertension. (Id. at 36). Dr.
Joubert-Curtis reported that Poole described his
“biggest problem” as having no access to exercise
equipment which he blamed for his fifty-pound weight gain
over the past year. (Id.). She also expressed that
Poole was evasive in his responses to questions about whether
he was taking the medication prescribed to him for his pain,
in particular Mobic, an anti-inflammatory medication.
(Id.). Despite his complaints, Poole told Dr.
Joubert-Curtis that he was able to walk for forty minutes,
five-times per week. (Id.). Dr. Joubert-Curtis urged
Poole to take his medications and, after explaining the
expected benefits of weight-loss including better pain
control, noted that he expressed no problems with going on a
1, 500 calorie per-day diet to lose the weight. (Id.
August 14, 2017, when Dr. Joubert-Curtis saw Poole again, he
had no notable weight-loss and his blood pressure remained
elevated. (Id. at 39). Poole told Dr. Joubert-Curtis
that he had filed an ARP because nothing offered at NBCI had
adequately addressed his hip pain. (Id.). After
reviewing Dr. Carls' report from 2016, Dr. Joubert-Curtis
ordered a consultation for a bone scan. (Id. at
39-40). That consultation request was subsequently approved.
(Ashraf Aff. ¶ 8, ECF No. 16-5).
mediation regarding the ARP, Poole met with Nurse Browning,
where Poole explained the need for his physical therapy at
the UMMS location because the facility at NBCI was “in
a room the size of a closet with no equipment that could
properly rehabilitate [his] injury.” (Compl. ¶
15). Poole states that he contacted the “parent
company” of Wexford explaining he had “been doing
non-stren[uous] exercises” with “PT assistant
Lloyd Hott” which were not helping with his pain.
(Id.). He further alleges Hott told him that he
“need[ed] not only the [use] of the equipment and
resources of UMMS, ” but that he “would also need
to continue the rehabilitative therapy on a daily
basis.” (Id.). Poole states Hott acknowledged
that NBCI did not have the necessary equipment as it was
discontinued in 2012. (Id.).
9, 2017, Poole filed his Complaint against multiple
Defendants, including Medical Defendants, under 42 U.S.C.
§ 1983 (2018). (ECF No. 1). On June 15, 2017, Poole
filed an Amended and Supplemental Complaint (the
“Supplement”). (ECF No. 4). Poole alleges that Medical
Defendants: (1) exhibited deliberate indifference to his
serious medical needs in violation of the Eighth Amendment to
the U.S. Constitution; and (2) violated his due process
rights under the Fourteenth Amendment to the U.S.
Constitution when they deprived him of “any exercise
compatible with” what the UMMS doctor recommended.
(Suppl. ¶¶ 25, 28).
October 10, 2017, Medical Defendants filed their first Motion
to Dismiss or, in the Alternative, Motion for Summary
Judgment. (ECF No. 16). The Court denied this Motion without
prejudice on August 21, 2018, to correct clerical errors in
this case. (Aug. 21, 2018 Order, ECF No. 19). On August 22,
2018, Medical Defendants filed their Renewed Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment.
(ECF No. 21). Poole filed his Opposition on September 13,
2018. (ECF No. 23). To date, the Court has no record that
Medical Defendants filed a Reply.
filed his Motion for Injunctive Relief on December 17, 2018.
(ECF No. 32). To date, the Court has no record that any of
Defendants filed an Opposition.
Medical Defendants' Motion
Conversion of Medical ...