United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants Jason Clem, M.D. and
Ben Oteyza, M.D.'s Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment (ECF No. 11). This
42 U.S.C. § 1983 (2018) action arises from Plaintiff
Cokie Joe Gopshes, Jr.'s allegations that Defendants were
deliberately indifferent to his back pain in violation of the
Eighth Amendment to the U.S. Constitution. The Motion is ripe
for disposition, and no hearing is necessary. See
Local Rule 105.6 (D.Md. 2018). For the reasons outlined
below, the Court will grant the Motion.
Factual Background 
Gopshes' Complaint & Opposition
was in a serious tractor-trailer accident on August 1, 2013
and was taken to the Shock Trauma Department at the
University of Maryland Medical Center (“UMMC”).
(Compl. at 2, 5, ECF No. 1). Gopshes' Complaint is unclear
about the precise injuries he received in the accident. He
states that the treating doctors at UMMC informed him that he
“would need to have surgery to cut crooked tailbone,
” because it “would grow back not straight,
” and cause him “horrific unbearable pain”
due to a “burst fracture.” (Id. at 2,
5). Gopshes' Opposition adds some detail about his
accident and injuries. It states that “the impact of
[the tractor-trailer into trees at sixty-five miles per hour]
burst[ ] fractured” Gopshes' “L-1, tailbone,
nose bone, and knocked out [his two] front teeth.”
(Pl.'s Opp'n at 1, ECF No. 13). It further states
that “Shock [T]rauma said [there] was prob[ab]ly some
hip damage” and that Gopshes “needed an MRI to
see if that was the case.” (Id.).
unspecified point after the accident, Gopshes was
incarcerated at Eastern Correctional Institution
(“ECI”) in Westover, Maryland. (See
Compl. at 1). Gopshes' Complaint makes various assertions
about his medical treatment while incarcerated at ECI, though
these assertions are sometimes stated without context and are
not in a clear temporal order. The Court, to the best of its
understanding, recounts the Complaint's allegations in
chronological order, as follows.
February 2016, Dr. Oteyza “cancelled”
Gopshes' pain medication, but he began receiving the
medication again Gopshes the following month. (Id.
at 2-3). In February 2017, Gopshes' unnamed chronic care
provider requested an increased dosage of his pain
medication, but Dr. Clem denied the request. (Id. at
26, 2017, Gopshes had an appointment with Dr. Oteyza at which
Gopshes informed the doctor that he was in “horrific
pain, pain meds only helped for [two] hours after each[ ]
time taken, pain jumped right back to [nine] or [ten] [on a
ten-point scale of severity]” and that he needed
“to get MRI because [his] tail bone was aching and was
pressing against nerves in [his] spine.” (Id.
at 5). Dr. Oteyza submitted a request for Gopshes to see an
orthopedic specialist. (Id. at 2). Dr. Oteyza also
requested that Gopshes' pain medications be renewed for
the next ninety days; however, Dr. Clem “denied
[Gopshes'] meds and only approved [Gopshes']
[M]obic.” (Id.). Dr. Clem's decision
had the effect terminating Gopshes' 800 mg dose of
Neurontin “cold turkey.” (Id.
at 3). Gopshes ran out of his prescription for Neurontin on
July 28, 2017 and reports that he did not get “his pain
meds back” (presumably referring to Neurontin) until
August 25 or 27, 2017,  but at a reduced dosage.
(Id.). Gopshes was given 600 mg of Neurontin between
August 25 and September 2, 2017 but does not make it clear
what happened after this date (i.e., whether his dosage
increased, decreased, or was terminated). (See id.).
reports that, as of November 5, 2017, he still has not been
seen by an orthopedic specialist, is only receiving seven mg
of Mobic per day, and remains in a “horrific amount of
pain.” (Id.). He is “always lying in
[his] bunk because of the horrific pain, ” he eats
“one meal a day out of like at least [five] days a
week, ” and he never goes to recreation because his
condition prevents him from leaving his cell. (Id.
at 4). He states that sick call providers refuse to treat his
complaints, informing him that he first needs to see his
chronic care provider. (Id. at 3).
Gopshes alleges that he went to physical therapy, but he
stopped going because he was unable to walk for three days
after a therapy session. (Id. at 2). This assertion
lacks any contextual details, however, including when the
therapy was ordered or provided, who ordered Gopshes to
receive physical therapy, and who provided the treatment.
Thus, the Court is unable to fit this allegation into the
Opposition, Gopshes states that he remains in pain,
“Mobic is not working [any] more” to alleviate
his pain, he is being given only half as many pain relief
patches as he desires, and he still has not received an MRI
of his hip. (Pl.'s Opp'n at 1-2).
Gopshes' Medical Records
their Motion, Defendants submitted Gopshes' certified
medical records, which the Court now summarizes. On January
14, 2016, Gopshes had a chronic care provider visit with Dr.
Oteyza regarding pain management. (Defs.' Mot. Dismiss
Summ. J. [“Defs.' Mot.”] Ex. 1
[“Medical Records”] at 5-6, ECF No. 11-4). Dr.
Oteyza noted that Gopshes had been “[o]n neurontin
since 10/20/15, baclofen 10 mgm, mobic 15 mgm. Latest is
mobic and neurontin.” (Id. at 5). Dr. Oteyza
switched Gopshes from his combination of Mobic and Neurontin
to a combination of Mobic and Baclofen. (Id. at
6) (noting that Gopshes “will use mobic and
baclofen”). Dr. Oteyza also ordered that Gopshes
receive an x-ray of his lumbar spine. (Id.). The
x-ray was performed on February 18, 2016. (Id. at
7). It revealed an “age indeterminate compression
fracture of L1 vertebral body” and noted “mild to
moderate [degenerative joint disease] present at multiple
levels in lumbar spine.” (Id.).
March 2016, Gopshes submitted several sick calls complaining
that he was in pain and requesting that he be prescribed
Neurontin. (Id. at 8-13). Gopshes' medical
records indicate that a registered nurse reviewed his sick
calls; there is no suggestion that either Defendant had
contemporaneous knowledge of the sick calls.
April 13, 2016, Gopshes had an appointment with a
physician's assistant who submitted a prescription for
Neurontin at a dosage of 400 mg twice a day for treatment of
his pain. (Id. at 14-15). Dr. Clem approved the
prescription. (Id. at 16).
April 22, 2016, Gopshes had a chronic care appointment with a
nurse practitioner who noted that Gopshes rated his back pain
as a seven out of ten in severity and reported that the
restarted Neurontin “helps for a few [hours] then
tapers off.” (Id. at 17). The nurse
practitioner discussed with Gopshes that the goal of pain
management is “not to el[i]minate pain completely but
to make it tolerable enough to allow [activities of daily
living].” (Id.). She requested that Gopshes
receive an increased dosage of Neurontin (600 mg twice a
day), which Dr. Clem approved. (Id. at 19-20).
Gopshes' next chronic care appointment on July 21, 2016,
he stated that “neurontin at present dose brings pain
down to 4/10 but only lasts about [four hours].”
(Id. at 21). As a result, the nurse practitioner
requested that Gopshes' dosage of Neurontin be increased
to 800 mg twice a day, which Dr. Clem approved. (Id.
at 21, 24). She also discontinued Baclofen based on
Gopshes' complaints of muscle spasms and recommended that
Flexeril be provided instead; Dr. Clem approved the Flexeril
prescription. (Id.). In addition, she submitted
a consultation request for Gopshes to receive physical
therapy to address his complaints of pain in his lower back
and right thigh.” (Id. at 25). Dr. Clem
approved the request. (Id. at 26).
received two months of physical therapy, which began on
August 9, 2016. (Id. at 27-35). The physical
therapist noted that Gopshes “progressed well with
treatment.” (Id. at 35). At his chronic care
appointment on October 7, 2016, Gopshes reported that he was
“feeling better with the current physical
therapy” and was able to exercise three to four days
per week. (Id. at 36).
next chronic care appointment on December 21, 2016, Gopshes
reported that he performed calisthenic exercises three to
four days per week. (Id. at 39). Because Gopshes
reported that the Neurontin “brings pain down to 6/10
but only lasts about [four hours], ” the treating nurse
practitioner requested that his dosage be increased from 800
mg twice a day to 900 mg twice a day. (Id.). Dr.
Clem denied the request, but he did approve a prescription
for Neurontin at 800 mg two times a day. (Id. at 42,
chronic care appointment on April 18, 2017, Gopshes
reiterated that the Neurontin “brings pain down to 6/10
but only lasts about [four hours].” (Id. at
46). Dr. Clem approved the nurse practitioner's requests
for Neurontin at the existing twice-daily 800 mg dosage,
Flexeril, and a new course of physical therapy. (Id.
at 49-51). Gopshes attended physical therapy on May 11 and
June 13, 2017, but thereafter missed his appointments.
(Id. at 52, 54-56, 59, 71, 73, 75). Conflicting
records state that Gopshes was discharged from physical
therapy on August 1, 2017 and on November 17, 2017 due to
nonattendance. (Id. at 59, 76).
to Dr. Clem, Gopshes' mental health providers prescribed
him Amitriptyline at some point in July 2017, (Clem Aff.
¶ 5, ECF No. 11-5), and this medication is listed in
Gopshes' medication list as of August 8, 2017, (Medical
Records at 60). Dr. Clem avers that Amitriptyline “has
a secondary benefit of neuropathic pain relief.” (Clem
Aff. ¶ 5).
26, 2017, Gopshes had a chronic care appointment with Dr.
Oteyza at which Gopshes stated that his medication provided
him with relief from back pain for two hours before the pain
returned. (Id. at 57). Dr. Oteyza's notes state
that Gopshes “[s]till complains that he has lots of
back ache. Will refer to orthopedist for evaluation. Doing
stretching. . . . He looks good, physically, not
malnourished, moves good with good mind [sic] and quite
mobile.” (Id.). Dr. Oteyza requested that
Gopshes continue with Neurontin at the same dosage, but by
Dr. Clem denied this request because it did not indicate a
diagnosis justifying the medication. (Id. at 58,
60). Gopshes remained on Mobic, but his Flexeril prescription
was not renewed beyond its pre-existing scheduled stop date
of August 18, 2017. (Id. at 58, 60, 63; see
also Clem Aff. ¶ 5).
submitted a sick call slip on August 7, 2017, stating that he
had been without “pain meds going on [nine] days”
and was in “horrific pain.” (Medical Records at
61). On August 8, 2017, Dr. Oteyza resubmitted the request
for Neurontin, this time with a diagnostic explanation.
(Id. at 60). On August 24, 2017, Dr. Clem approved
the prescription for Neurontin at a dosage of 600 mg twice a
day for 30 days, noting that Gopshes should be tapered off
the medication. (Id. at 63-64).
September 6, 2017, a request for an orthopedics consultation
was submitted. (Id. at 65). On September 21, 2017,
Gopshes' taper of Neurontin continued, and his dosage was
decreased to 600 mg once a day. (Id. ...