United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
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.
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
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.
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. 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.
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.)
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.
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).
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.
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.
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).
has a history significant for Hepatitis C Virus,
hypertension, shoulder pain/dislocation, and left knee pain.
ECF 9-5 at ¶ 3.
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.
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 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.
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.
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
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.
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.
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.
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.
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 ...