United States District Court, D. Maryland, Southern Division
W. Grimm United States District Judge
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
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.
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.
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)).
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).
and Procedural Background
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.”
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,
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 ...