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Hoffman v. Department of Public Safety and Correctional Services

United States District Court, D. Maryland

March 26, 2019




         THIS MATTER is before the Court on Defendants Krista Bilak (n/k/a Krista Self), N.P., Robustianno Barrera, M.D., Mahboob Ashraf, M.D., Holly Pierce, N.P., William Beeman, R.N., Stacie Mast, R.N., Wexford Health Source, Inc., (collectively, “Medical Defendants”) Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 19) and Department of Public Safety and Correctional Services' (“DPSCS”) Motion to Dismiss (ECF No. 30). The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will deny Medical Defendants' Motion without prejudice and grant DPSCS's Motion.

         I. BACKGROUND[1]

         A. Factual Background

         In his Verified Complaint, [2] Hoffman alleges that he has been denied constitutionally adequate medical care. He states that he has been “diagnosed with: chronic interstitial lung disease, degenerative bone disease in both knees and right foot, significant abnormal areas of activity involving urinary bladder and both kidneys.” (Compl. ¶ 1, ECF No. 1) (alteration to capitalization).

         1. Lung Issues

         As to the issues regarding his chronic lung pain, Hoffman alleges that on May 27, 2016, Bilak told Hoffman that he has Chronic Obstructive Pulmonary Disease and refused to order a PET scan or pain medication to treat his disease because Hoffman was “making everything up.” (Id. ¶ 11).

         On June 6, 2016, Dr. Ashraf saw Hoffman and prescribed him Tylenol #3[3] for the lung pain he was experiencing. (Id. ¶ 12). Dr. Ashraf examined Hoffman again on July 7, 2016, and because “the treatment plan along with one (1) Tylenol #3 twice a day proved to stabilize pain and vitals, ” Dr. Ashraf continued Hoffman's medication until August 7, 2016. (Id. ¶ 13).

         On August 9, 2016, Pierce refused to renew Hoffman's prescription for Tylenol #3, advising him that she would not give him narcotics and noting that he was getting Baclofen for pain relief. (Id. ¶ 14). She advised Hoffman that she would refer him to Dr. Ashraf but failed to do so. (Id. ¶¶ 14-15). After ten days of “suffering with pain in [his] lungs and upper back, ” Hoffman submitted a sick call slip. (Id. ¶ 15). On August 19, 2016, Rick Moyer, RN saw Hoffman and also advised that she would refer Hoffman to Dr. Ashraf. (Id. ¶ 16). She failed to do so. (See id. ¶¶ 16-19). Ten days later, Hoffman submitted another sick call slip requesting “relief of pain in his lungs and test[s] to determine the damage to his lungs.” (Id. ¶ 17). Hoffman submitted yet another sick call slip complaining of “lung pain” on August 26, 2016. (Id. ¶ 18). On August 29, 2016, Amy Booth, RN saw Hoffman. (Id. ¶ 19). Hoffman requested to see a provider, and Booth indicated she would submit the referral. (Id.).

         On August 30, 2016, Pierce saw Hoffman. (Id. ¶ 20). Hoffman states that while it is not reflected in Pierce's report, she was patronizing to him, displayed hatred towards him, and “put[ ] a show on for the correctional officers who were in attendance.” (Id.). He alleges that Pierce “showed satisfaction” that she had denied him pain medication. (Id.). At the appointment, Hoffman again requested to be seen by Dr. Ashraf. (Id.).

         On September 2, 2016, Hoffman was scheduled for an appointment with Pierce, but she “made a false claim stating, ‘issue resolved on previous visit.'” (Id. ¶ 21). Pierce saw Hoffman again on September 29, 2016. (Id. ¶ 22). Hoffman alleges that, except for the anxiety and stress that she noted Hoffman was suffering from, Pierce falsified the report from the appointment. (Id.). She refused to refer Hoffman to see the doctor. (Id.). Hoffman questions why he was prescribed Mobic and Prednisone for pain if he was not complaining of pain during this encounter. (Id.).

         On October 5, 2016, Marilyn Evans, RN saw Hoffman due to continued pain from his chronic interstitial lung disease that his medication did not alleviate. (Id. ¶ 23). Evans advised Hoffman that she would refer him to a provider. (Id.). The following day, while in “terrible pain, ” Hoffman was scheduled to see Pierce for a chronic care visit. (Id. ¶ 24). Hoffman alleges that Pierce violated her duties as a medical provider during this visit but does not explain how. (Id.).

         On October 12, 2016, Hoffman submitted another sick call request, again seeking relief from the pain caused by his chronic interstitial lung disease. (Id. ¶ 25). Hoffman explains that he later learned that Beeman is responsible for assigning care providers for scheduled visits. (Id.). He further explains that Beeman was aware of the conflict between Hoffman and Pierce and was informed of the grievance Hoffman filed against Pierce on October 12, 2016 (No. NBCI 2305-16). (Id.). Beeman scheduled Pierce to see Hoffman on October 14, 2016, which Hoffman alleges Beeman did despite “knowing she [was] going to retaliate against [him] for filing a grievance against her.” (Id.).

         Pierce evaluated Hoffman on October 14, 2016, in the presence of Officer Michael Gutillo. (Id. ¶ 28). Hoffman advised Pierce that he was experiencing chest and lung pain and requested a referral to a doctor. (Id.). Pierce refused to refer Hoffman, instead pointing to herself and saying, “I am a doctor.” (Id.). Hoffman advised Pierce he was going to file a grievance against her to which she replied, “Join the club.” (Id.). Later, Pierce “willfully filed and fabricated” a report about the encounter. (Id. ¶ 29).

         On October 17, 2016, Hoffman filed a grievance (NBCI 2295-16) against Pierce concerning what he alleged were her “unprofessional conduct and negligence” during his October 14, 2016 appointment. (Id. ¶ 30). In retaliation for that grievance, on October 27, 2016, Pierce made a false claim that Hoffman had threatened her. (Id. ¶ 31). That same day, Hoffman was placed on administrative segregation for forty days. (Id.). Hoffman alleges that due to the personal relationship between Pierce and a correctional officer, he was removed from general population without an infraction being written against him. (Id.).

         On November 13, 2016, Hoffman filed a sick call slip complaining of pain caused by his chronic interstitial lung disease. (Id.).[4] Bilak saw Hoffman on November 17, 2016. (Id. ¶ 32). Because Hoffman was on administrative segregation at the time, his hands were cuffed behind his back and he was escorted to the exam room by Officer Deist who was present for the examination. (Id.). Bilak was hostile and unprofessional to Hoffman. (Id.). When Hoffman advised that the medication was no longer working, she responded, “What do you want me to do about it!” She also told Hoffman that he had been given a CT and bone scan which showed he had “mild COPD.” (Id.). She explained that because they had done “all that is medically required, ” they were not going to do any further investigation into the source of his lung pain, and that Hoffman needed to “deal with it!” (Id.). When Hoffman persisted in asking what was causing him pain, Bilak responded by hitting Hoffman in the arm with her blood pressure cuff and yelling for Officer Deist to “Get him out of here!” (Id.). As Officer Deist escorted Hoffman back to his cell he said, “I am surprise[d] she still works here.” (Id.). Hoffman states that Bilak's account of this encounter is “imaginative, deceitful, and fabricated.” (Id. ¶ 34) (spelling altered). Bilak reported that Hoffman threatened her, stating, “I will get you, you wait, this isn't over, ” and was then escorted out of the medical department. (Id. ¶ 35). Hoffman asserts that the fact that Officer Deist was present for this alleged threat and yet Hoffman was not formally charged with threatening staff demonstrates that the threat did not happen. (Id.). On November 30, 2016, Hoffman filed a grievance against Bilak (NBCI-2646-16). (Id. ¶ 33).

         On December 3, 2016, Hoffman submitted a sick call slip complaining of pain in his lungs. (Id. ¶ 36). On December 6, 2016, Mast saw Hoffman and she referred him to a provider. (Id. ¶ 37). Beeman, aware of the grievances Hoffman had filed against Pierce and Bilak, assigned Hoffman to see Bilak on December 12, 2016. (Id. ¶ 38). Hoffman states that he was walking, unescorted, to the examination room in his housing unit when he saw Bilak in the hallway with three correctional officers and heard her tell them that he had threatened her. (Id. ¶ 40). The officers appeared dumbfounded by the charge and took no action. (Id.). Hoffman claims that Bilak did not put in her report that she told the officers that Hoffman had threatened her and instead made “up another story claiming [Hoffman] was loud and agitated.” (Id. ¶ 41).

         On December 20, 2016, Moyer saw Hoffman in response to his sick call filed on December 16, 2016, complaining of pain throughout his body. (Id. ¶¶ 42-43). One day later, Bilak saw Hoffman for a chronic care visit. (Id. ¶ 44). Hoffman indicates that it is odd that Bilak would see him again when she twice claimed that he had threatened her. (Id.). He alleges that Bilak “cherry picked” through his medical records to demonstrate her concern for his health. (Id. ¶ 45). He states that her report of the December 21, 2016 appointment was an effort to “make her look like a professional caregiver. If [he] had a computer and a printer he can fool people with a made[-]up report to make him look like a professional to[o].” (Id.).

         On June 7, 2017, Hoffman sent a fact sheet from the American Cancer Society regarding interstitial lung disease through the sick call box, attached a copy of the fact sheet to a grievance he filed, and took the sheet with him to his sick call visits. (Id. ¶ 53). When Hoffman attempted to give the sheet to medical providers, they refused to accept it. (Id.). Hoffman alleges that he has received no treatment for his lung condition and that the condition is worsening. (Id. ¶ 50).

         On July 29, 2017, Mast saw Hoffman. (Id. ¶ 51). She advised Hoffman that “there [is] no treatment for ‘chronic interstitial lung disease.'”[5] (Id.). Hoffman notes that her report indicates that he was not complaining of pain and yet the chief complaint noted on the report is “lung pain.” (Id. ¶ 55). She also noted that Hoffman had previously told her that he was in end stage lung disease for which there is no cure other than a lung transplant. (Id. ¶ 56). Hoffman questions if this were true why his relaying the information about his lung disease was not contained in earlier medical reports. (Id.). That day, Hoffman filed a grievance against Mast for what he deemed to be her unprofessional conduct. (Id. ¶ 52).

         Hoffman believes that he has “lung cancer or tumors in his lungs.” (Id. at 26). He states that he needs an “MRI, lung biopsy[, ] and PET scan.” (Id. at 27). Hoffman pleads that he knows he has cancer due to the increase in his pain and that Medical Defendants refuse to treat him because of the grievances he has filed. (Id. at 29). Hoffman alleges that Medical Defendants wait until a patient is diagnosed with end state cancer before providing treatment. (Id. at 28). He states that he has “never met a[n] inmate with early stage cancer who has received treatment for said cancer.” (Id.). He further alleges that Medical Defendants have a policy of not providing tests such as MRIs or PET scans that could catch early stage cancer. (Id. at 29). Rather, they wait until the cancer is not treatable and then move the inmate to another institution to die. (Id.).

         2.Bladder Issues

         On June 6, 2017, Hoffman filed a grievance regarding his uncontrollable urination that started in January 2017. (Id. ¶ 47). He states that although he received “two treatments with antibiotics[, he] still couldn't control his urination.” (Id.). On June 8, 2017, Lt. George McAlpine dismissed the grievance without investigation. (Id.). Hoffman pleads that as of the filing of his Complaint, he continues to suffer and that his condition was worsening to the point that he is experiencing uncontrollable urination three to four times a day. (Id.; id. at 25). He states that he filed “numerous” sick call slips but was not getting any treatment for this condition. (Id. ¶ 47). Hoffman believes he has “irreversible . . . bladder and ...

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