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Velasquez v. Tessema

United States District Court, D. Maryland, Southern Division

July 10, 2019

BELAY TESSEMA, M.D., et al., Defendants.


          Paul W. Grimm United States District Judge

         Plaintiff Emiliano Velasquez originally filed this 42 U.S.C. § 1983 action against Defendant Wexford Health Sources, Inc. (“Wexford”), alleging that Defendant was deliberately indifferent to his serious medical needs. Compl., ECF No. 1. He then filed a Supplement to his Complaint, adding § 1983 claims for deliberate indifference against two of his health care providers, Dr. Belay Tessema, M.D. and Dr. Asresahegn Getachew, M.D. ECF No. 8. Before Drs. Tessema and Getachew received the Complaint and Supplement, Wexford moved to dismiss or, alternatively, for summary judgment and I granted the motion, entering judgment in Wexford's favor. Sept. 19, 2017 Mem. Op. & Order, ECF Nos. 27, 28. I concluded that Mr. Velasquez had stated deliberate indifference claims against the physicians, however. Id. Accordingly, I ordered that the Supplement and Complaint be sent to Drs. Tessema and Getachew, and I ordered that they respond. Id. Additionally, I appointed pro bono counsel for Velasquez. ECF No. 32.

         In accordance with the Letter Order regarding the Filing of Motions, ECF No. 41, Drs. Tessema and Getachew filed a pre-motion conference request, ECF No. 44, and the parties agreed to engage in limited discovery before Defendants filed a dispositive motion. ECF No. 46. Now pending is Defendants' Motion to Dismiss or, Alternatively, for Summary Judgment, ECF No. 54, which the parties fully briefed, ECF Nos. 54-1, 55, 57. A hearing is not necessary. See Loc. R. 105.6. Defendants attached Mr. Velasquez's medical records to their motion, ECF Nos. 54-2 - 54-15, as well as affidavits from both doctors, ECF Nos. 54-17, 54-18. Mr. Velasquez did not verify his Complaint, Supplement, or Opposition, and did not file an affidavit or any exhibits in support of his Opposition, relying only on the medical records that Defendants filed and a joint stipulation of facts. See Pl.'s Opp'n 2. I issued a paperless order on May 20, 2019, providing Mr. Velasquez the opportunity to verify the facts that he has alleged or to file an affidavit in support of his argument on or before June 10, 2019. See ECF No. 60; see also Fed. R. Civ. P. 56(c)(1)(4), (4). To date he has not done so. See Docket.

         Because I have considered the medical records and Dr. Tessema's Affidavit, I will treat Defendants' motion a motion for summary judgment. See Fed. R. Civ. P. 12(d). Defendants have shown that no genuine disputes exist regarding the material facts and that they are entitled to judgment as a matter of law, and Mr. Velasquez has not identified more than a scintilla of evidence to support his claims, relying instead on unsupported allegations. Therefore, I will grant Defendants' motion.[1]

         Standard of Review

          Summary judgment is proper when the moving party demonstrates, through “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials, ” that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). “A disputed fact presents a genuine issue ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party.'” Cole v. Prince George's Cty., 798 F.Supp.2d 739, 742 (D. Md. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         If this initial burden is met, the opposing party may not rest on the mere allegations in the complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, the burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute exists as to material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 & n.10 (1986). The existence of only a “scintilla of evidence” is not enough to defeat a motion for summary judgment. Anderson, 477 U.S. at 251-52. Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, summary judgment is appropriate. Anderson, 477 U.S. at 248-49. For example, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

         Factual and Procedural Background[2]

         In the September 19, 2017 Memorandum Opinion, I concluded that Mr. Velasquez “stated a claim of deliberate indifference in violation of the Eighth Amendment against Dr. Tessema” in his Supplement by alleging that “he informed Dr. Tessema at a chronic care visit that he had chronic care needs regarding his shoulder, testicles, and back and clarified that they were, indeed, chronic issues, and Dr. Tessema deliberately refused to treat him for those issues.” Sept. 19, 2017 Mem. Op. 17. I noted that he alleged that “he told Dr. Tessema that he had been ‘waiting and seeking care under “chronic care” for issues concerning his shoulders, and a lump on his testicles,' but ‘doctors, and staff have refused to evaluate or treat Plaintiff for the problems'” and that “he told Dr. Tessema that his ‘[b]ack pain medication has repeatedly not been renewed.'” Id. (quoting Supp. 2). I concluded that he stated a deliberate indifference claim against Dr. Getachew as well by alleging that “the doctor ignored a specialist's order for an x-ray or a CAT scan, electing only to provide physical therapy.” Id.

         Following discovery, the parties now stipulate that the verified medical records provide evidence of the following facts:

1. Dr. Tessema
The undisputed verified medical records show that Plaintiff was seen by Dr. Tessema only one time in 2016 for chronic care, which was on June 9, 2016. (See, Exh. 1). Plaintiff claims that at that time, he informed Dr. Tessema that his “back pain medication has repeatedly not been renewed” and that Dr. Tessema refused to treat him for his chronic care needs. (Plaintiffs Supp. Compl. at p.2). However, the undisputed verified medical records show that on the same day, Dr. Tessema's completed a “Non-formulary Drug Request Form” to renew Plaintiff's prescription for Gabapentin and Tramadol Hcl to treat Plaintiff's chronic pain. (See, Exh. 2) In so doing, Dr. Tessema noted that non-formulary drugs (Gabapentin and Tramadol Hcl) were needed to treat Plaintiff's lumbar spinal stenosis, because the formulary drugs (NSAIDS and Tylenol) previously given to Plaintiff were ineffective.
Plaintiff also alleges that he complained to Dr. Tessema about a lump on his testicles. Dr. Tessema's medical record of the June 9, 2016 visit, however, makes no mention of testicular pain/lump. It rather indicates that the “Reason(s) for visit” included: “Cardiovascular and chronic shoulder and lower back pain” (See, Exh. 1) In addition, Plaintiff's sick call requests that were made most recent in time to his June 9, 2016 visit with Dr. Tessema, makes no mention of a lump on his testicles or testicular pain. Plaintiff's May 16, 2016 sick request refers to lower back pain and his May 22, 2016 sick request refers to right eye and ear pain. (See, Exh. 3).
Additionally, the verified medical records show that on June 9, 2016 - the same day that he had a visit with Dr. Tessema - Plaintiff was also examined by nurse practitioner Samantha Sinclair, LPN. Similar to Dr. Tessema's medical record, Nurse Sinclair also did not record any complaints made by Plaintiff regarding testicular pain or lump. (See, Exh. 4).
On June 22, 2016, Plaintiff had, yet, another visit with a different nurse, Nosakhare Aihevba, RN. Nurse Aihevba documented: “Reason(s) for visit: left and right shoulder pain, itchy and burning eyes.” (See, Exh. 5) Again, there is no ...

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