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Pevia v. Pierce

United States District Court, D. Maryland

May 31, 2019

DONALD PEVIA, Plaintiff
v.
HOLLY PIERCE, et al., Defendants

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER, UNITED STATES DISTRICT JUDGE

         Donald Pevia, a self-represented Maryland prisoner confined at the North Branch Correctional Institution (“NBCI”), filed suit under 42 U.S.C. § 1983 against Holly Pierce, RNP, and Ava Joubert, M.D., alleging denial of constitutionally adequate medical care. ECF 1. Defendants have moved to dismiss, or, in the alternative, for summary judgment. ECF 9. The motion is supported by a memorandum (ECF 9-3) (collectively, the “Motion”) and several exhibits. Plaintiff opposes the Motion (ECF 13) and has submitted exhibits. Defendants replied. ECF 15.[1]

         No hearing is necessary to resolve the Motion. Local Rule 105.6 (D. Md. 2018). For the reasons that follow, defendants' Motion, construed as one for summary judgment, shall be granted.

         I. Factual Background

         A. Plaintiff's allegations

         In his unverified complaint, plaintiff alleges that he has a history of severe shoulder and knee injuries, both necessitating surgical repairs. Throughout 2016 and 2017 he was prescribed multiple pain medications and muscle relaxers, including Baclofen and Tramadol, due to these injuries. ECF 1 at 2; ECF 13 at 10; ECF 13-1 at 12. In this case, plaintiff's complaint centers on his allegations that his prescriptions for Tramadol and Baclofen were improperly discontinued in November of 2017 and January of 2018, respectively, and that he was not provided proper pain medication during this time.

         Plaintiff indicates that on November 3, 2017, he was transferred to Western Correctional Institution (“WCI”). ECF 1 at 2. At that time, Dr. Joubert began to reduce plaintiff's prescription for Tramadol. Id. Plaintiff disagreed with Joubert's decision to discontinue his prescription for Tramadol because he continued to suffer from chronic arthritis in his knee and shoulder as well as “deteriorating joint disorder.” Id. at 7. Plaintiff advised Joubert “that Tylenol and Mobic did nothing when Joubert advised [him] to buy these things from commissary.” Id.[2] Plaintiff also advised Joubert that he was indigent and had no money with which to buy medication and that the medical department could not deny him medication and then make him pay for it. Id.

         Joubert told plaintiff that medical was not required to provide over-the-counter medications that were available in the commissary. Id. Plaintiff states he was unable to buy medication from the commissary and “was forced to buy pain med[ication] from other inmates by doing tattoos and making jailhouse liquor.” Id.; see also ECF 13 at 2 (in response to a sick call slip seeking pain medication, Joubert advised plaintiff to buy it from the commissary, resulting in plaintiff buying blister packs of Motrin from other inmates.)

         Plaintiff's prescription for Baclofen was continued. ECF 1 at 3. But, on December 21, 2017, plaintiff submitted a sick call slip complaining that he had not received all of the pain medication that Dr. Joubert had ordered for him and that since his prescription for Ultram/Tramadol ended he wanted to be prescribed something. He indicated his shoulder and knee were in terrible pain and that his prescription for Baclofen was also about to expire. ECF 13 at 2. Joubert wrote on the sick call slip: “addressed on 11/14/17 order from commissary only.” Id. Plaintiff states that the Mobic and Tylenol that were prescribed to him were never received by him due to the prison's policy that he purchase it from the commissary. ECF 13 at 6-7. Further, he explains that he was unable to purchase medication from the commissary because he was indigent during the relevant time frame. Id. at 7-8.

         On January 11, 2018, plaintiff's prescription for Baclofen expired. Nevertheless, he maintains that he continued to receive the medication because the medical department failed to remove him from the pass list. ECF 1 at 3; see also ECF 13 at 3; ECF 13-1 at 6 (pass list indicating plaintiff went to medication call twice daily from January 11, 2018 to January 21, 2018).

         Plaintiff was transferred to NBCI on January 21, 2018. Once there, he stopped receiving Baclofen. ECF 1 at 3. After a few days, plaintiff began to experience side effects and withdrawal from not receiving Baclofen. Id. On January 28, 2018, he submitted a sick call slip indicating that he needed to be seen by medical staff about his pain medication. He stated that since he had been “cut off” he could not sleep, and suffered cramps, nausea and terrible pain. ECF 13-1 at 7.

         A few days later, plaintiff was seen by Holly Pierce, RNP. During the visit, plaintiff and Pierce argued due to Pierce's refusal to renew plaintiff's prescription for Baclofen to assist him in handling the withdrawal. ECF 1 at 3. Plaintiff states that he later found out Pierce fabricated the report of the encounter, claiming that Baclofen withdrawal was never discussed. Id. Plaintiff claims that he suffered withdrawal from Baclofen because he was suddenly denied the medication. Id. In support of his contention, he provides printouts from a website indicating that Baclofen should be tapered, and warning against abrupt stoppage. ECF 13 at 10; ECF 13-1 at 9, 11. Plaintiff also provided an affidavit from inmate Shawn Campbell, who avers that in December of 2016, Holly Pierce stopped his prescription for Baclofen via a tapering dose for him and explained to him that the dose needed to be tapered in order to avoid withdrawal symptoms. ECF 13-2 (Campbell Affidavit) at 1. Campbell also indicates that he is “aware of the withdraw[al]s [plaintiff] went through, ” but does not describe them, and also indicates that plaintiff suffered a loss of appetite. Id., p. 1.

         B. Defendants' response

         In support of their Motion, defendants submitted various exhibits, including the affidavits of Asresahegn Getachew, M.D.; Holly Pierce, RNP; and relevant portions of plaintiff's medical records from November 1, 2017 through June 25, 2018. ECF 9-4 (medical records); ECF 9-6 (Pierce Affidavit); ECF 9-5 (Getachew Affidavit).

         Plaintiff's has a history significant for Hepatitis C Virus, hypertension, shoulder pain/dislocation, and left knee pain. ECF 9-5 at ¶ 3.

         Relevant to the allegations raised in this case, on November 14, 2017, plaintiff was evaluated by Ava Joubert, M.D. ECF 9-4 at 2-4. The history of plaintiff's left knee pain and treatment was reviewed. It was noted that plaintiff underwent surgery on June 19, 2017, to repair a torn ACL. Id. at 2. His recovery from the surgery was uneventful until on or around July 30, when his cellmate fell on plaintiff's left knee. Id. On August 9, 2017, plaintiff was observed walking without difficulty, his upper and lower extremities were within normal limits, and no swelling, bruising, or limping were noted. Id. Plaintiff failed to appear for a scheduled provider visit on August 22, 2017. On September 7, 2017, he reported to his physical therapist that his knee was improving, and he was discharged to self-management. Id. Thereafter, plaintiff complained of continuing left knee pain and an x-ray, taken on November 9, 2017, showed mild degenerative joint disease. Id.

         At the encounter with Joubert, plaintiff expressed his displeasure that his prescription for Tramadol/Ultram (a narcotic-like pain reliever used to treat moderate to severe pain) was being discontinued. Id. Joubert explained to plaintiff that narcotic analgesics were not intended for long term use. Id. He was encouraged to take his Mobic[3] for pain relief but plaintiff advised that he did not use it. Id. Joubert entered a prescription for two months of acetaminophen and a tapering dose of Tramadol. Id. at 2-4, 19, 21.

         Dr. Getachew and Pierce both explain that the Department of Public Safety and Correctional Services' State Medical Director has identified Tramadol (a synthetic opioid) “as a medication with patterns of overuse and abuse.” ECF 9-5, ¶ 7; ECF 9-6, ¶ 8. The patterns of abuse include hoarding of these medications by inmates or for trade to other inmates for misuse in exchange for secondary benefits. Id. And, Tramadol may be habit-forming with long term use. ECF 9-5, ¶ 8; ECF 9-6, ¶ 9. When Tramadol is taken with alcohol or products containing alcohol, Tramadol can also slow one's heart rate and lead to brain damage. Id. Additionally, misuse or abuse of Tramadol can lead to overdose and death. Id. In recent medical studies, Tramadol was shown to be no better than placebos and worse than other available narcotics. Id. As such, Getachew and Pierce each aver that Tramadol was not clinically indicated for plaintiff's medical condition. Getachew avers that it was appropriate to wean plaintiff off his prescription for Tramadol. ECF 9-5, ¶ 8.

         At the time plaintiff was weaned from Tramadol, he had active prescriptions for Mobic, Baclofen, and aspirin, which all expired on January 11, 2018. ECF 9-4 at 21, 23. Dr. Getachew explains that Baclofen is a muscle relaxer used to relieve muscle cramping and spasms. ECF 9-5, ¶ 6. Baclofen is not a drug used for long term pain management and as such it was not clinically indicated to treat plaintiff's condition. Id.; see also ECF 9-6, ¶¶ 4, 10 (Baclofen not recommended for long term use).

         Pierce avers that Baclofen is not a narcotic and that the FDA does not have a recommendation requiring its tapering when it is discontinued. ECF 9-6, ¶ 4. Cessation of Baclofen can cause withdrawal effects, usually when it is administrated by spinal injection. Id. The withdrawal symptoms include high fever, muscle stiffness, and changes in mental status which occur within 2-48 hours after the last dose and typically peak within 72 hours. Id.

         On January 21, 2018, plaintiff was transferred from WCI to NBCI. ECF 9-4 at 5, 8. A week later, on January 28, 2018, plaintiff submitted a sick call slip complaining about his pain medications. Id. at 9. He explained that he suffered from cramps, nausea, and pain, which he attributed to the cessation of his pain medications. Id.

         Pevia was seen by Pierce on February 2, 2018. Id. at 10-11. Plaintiff demanded a prescription for Ultram/Tramadol and Baclofen. Id. Pierce reviewed plaintiff's orthopedic notes. Id. Plaintiff voiced his disagreement with the notes and told Pierce that he would get a court order for Ultram/Tramadol and Baclofen. Id. He also advised Pierce that he was not interested in physical therapy or other treatment plans. Id. At the time of the encounter, plaintiff did not complain to Pierce of withdrawal effects from Baclofen. ECF 9-6, ¶ 7. As Pierce attempted to explain to plaintiff the clinical indications for the use of Ultram/Tramadol and Baclofen, he began to yell, and “[t]he visit was stopped for safety concerns.” ECF 9-4 at 10. Plaintiff's prescriptions for Ultram/Tramadol and Baclofen were not renewed. Id. at 10-11, 18.

         Pierce avers that restarting Baclofen was contraindicated and not clinically indicated. ECF 9-6, ¶ 7. Dr. Getachew and Pierce each state that non-pharmacologic therapy and non-opioid pharmacologic therapy are the preferred courses of treatment recommended by the Center for Disease Control for treatment of chronic pain. ECF 9-5, ¶ 9; ECF 9-6, ¶ 11. Plaintiff's prescriptions for aspirin, Mobic, and extra-strength Tylenol were all renewed. ECF 9-4 at 10, 25. Notably, Dr. Getachew avers that Mobic, which is not an over-the-counter medication, was provided to plaintiff at no cost. ECF 9-5, ¶ 10.

         Plaintiff was scheduled to be seen in the chronic care clinic on March 11, 2018, but did not attend. ECF 9-4 at 12. It was noted that he ...


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