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Gopshes v. Clem

United States District Court, D. Maryland

March 26, 2019

DR. CLEM, et al., [1] Defendants.



         THIS 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.


         A. Factual Background [2]

         1. Gopshes' Complaint & Opposition [3]

         Gopshes 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).[4] 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.).

         At some 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.

         In 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 2).

         On July 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.”[5] (Id.). Dr. Clem's decision had the effect terminating Gopshes' 800 mg dose of Neurontin[6] “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, [7] 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.).

         Gopshes 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).

         Additionally, 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 chronology above.

         In his 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).

         2. Gopshes' Medical Records

         Accompanying 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.[8] (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.).

         In 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.

         On 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).

         On 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).

         At 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.[9] (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).

         Gopshes received two months of physical therapy, which began on August 9, 2016. (Id. at 27-35).[10] 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).

         At his 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, 44).

         At his 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).

         According 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).

         On July 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).

         Gopshes 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).

         On 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. ...

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