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Poole v. NBCI

United States District Court, D. Maryland

March 26, 2019

ERIC VON POOLE, Plaintiff,
v.
NBCI, et al., Defendants.

          MEMORANDUM OPINION

          GEORGE L. RUSSELL, III UNITED STATES DISTRICT JUDGE.

         THIS 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[1] (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).[2] 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.

         I. BACKGROUND [3]

         Poole, 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).[4]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).[5] 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).

         On 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).[6] 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).

         Also on 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).

         On 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.).

         When 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.).

         On May 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 16-17).

         On May 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 program. (Id.).

         The 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.).

         On July 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).

         On July 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. at 37).

         On 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).

         At a 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.).

         On June 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”).[7] (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).

         On 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.

         Poole 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.

         II. DISCUSSION

         A. Medical Defendants' Motion

         1. Conversion of Medical ...


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