United States District Court, D. Maryland
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE
Oscar Barrera, who is incarcerated at Roxbury Correctional
Institution in Hagerstown ("RCI"), seeks
compensatory and punitive damages and injunctive relief
mandating he be provided arthroscopic surgery he waspromised
in 2012. His lawsuit, filed pursuant to 42 U.S.C. §
1983, names Medical Defendants Mahboobeh Memarsadeghi
("Dr. Memarsadeghi"), Ava Joubert-Curtis, M.D.
("Dr. Joubert"), Crystal Jamison, P.A.
("Physicians' Assistant Jamison" or "PA
Jamison"), and John Morgan, M.D. ("Dr. Morgan"),
who at the time relevant to the Complaint were employed by
Defendant Wexford Health Sources, Inc. ("Wexford").
ECF No. 1, p. 1; ECF No. 4, p. 2. Barrera alleges that he has
not received previously-approved surgery to correct a lateral
meniscus tear,  and remains in pain in violation of the
Eighth Amendment. ECF 1, pp. 4-5.
pending before the Court is Defendants' Motion to Dismiss
or, Alternatively, Motion for Summary Judgment (ECF No. 11),
Barrera's opposition response (ECF No. 17),
Defendants' reply to the opposition. ECF No. 18. Several
non-dispositive motions, including Barrera's second
Motion to Appoint Counsel (ECF No. 19) and his various
supplemental pleadings (ECF Nos. 20, 21, 23, 26 and 27) and
Defendants' responses thereto (EF Nos. 22 and 25) are
pending review. For the reasons stated below, Barrera's
non-dispositive motions are DENIED, and Defendants'
dispositive motion, construed as a motion for summary
judgment,  IS GRANTED.
March 8, 2012, the Honorable Roger W. Titus granted summary
judgement in favor of health care provider Correctional
Medical Services, Inc. ("CMS") based upon CMS's
assertion that Barrera, a Maryland state prisoner, would be
provided an MRI to diagnose and address ongoing knee
problems. See Barrera v. CMS, et al. Civil Action
No. RWT-11-2394 (D. Md.). A status report submitted on April
20, 2012 stated an MRI had been performed, a lateral meniscus
tear of the right knee had been found, and arthroscopic
surgery would be scheduled.
1. 2018, Barrera sought reconsideration in the earlier case,
alleging the surgery never occurred. Judge Titus denied
reconsideration and directed the Clerk to instead open this
action against Barrera's current health care provider,
Wexford. Barrera was granted an opportunity to file
an amended complaint in this new action naming the health
care providers who have ignored his need for surgery, and has
Complaint, as amended, Barrera states the "prior
diagnosis of a lateral meniscus tear remains the medical
complication" causing pain and limiting mobility. ECF
No. 1, p. 5. He states that over the intervening six years,
he has "repeated[ly] complained of extreme pain,"
"repeatedly informed [Wexford employees] that surgery
was needed and has received "excuses concerning money
reasons as the reason why surgery has not been
provided." ECF No. 4, p. 3. Barrera further states that
"adjusting and readjusting his medications" is
ineffective and "fall[s] far short of the prescribed
surgery which was ordered by the doctor over six years
moving for summary judgment, Defendants provide Barrera's
medical records and an affidavit of Erwin Aldana, M.D.,
detailing Barrera's history of chronic right leg and low
back pain. ECF Nos. 11-4 and 11-5. Defendants demonstrate
that the surgery recommended in Barrera's earlier
lawsuit, arthroscopic repair of a torn meniscus in the right
knee and debridement of the joint, was performed at Bon
Secours Hospital in March 2012. ECF No. 11-5, ¶ 5; ECF
No. 11-4, pp. 7-16.
April 18, 2012, Jonathan Thompson, M.D. recommended Barrera
receive arthroscopic surgery. ECF No. 11-4, pp. 2-3. Surgery
was approved and on May 3, 2012 was performed by Ashok
Krishnaswamy, M.D. at Bon Secours Hospital Id., pp.
7-16. Barrera returned to prison the day of surgery and was
given pain medication (initially Percocet, then Tylenol # 3
with codeine) and an antibiotic. Id., pp.
17-19. Following a June 6, 2012 orthopedic consult, Barrera
was provided a bottom bunk for four weeks, an order that was
later extended. Id., pp. 20-25. During his June 2012
annual examination, Barrera voiced no complaints.
Id., pp. 27-29.
a July 25, 2012 chronic care clinic checkup, David Didden,
M.D. ("Dr. Didden") noted that Barrera's chart
should be reviewed to determine whether additional orthopedic
consults were needed. Id., pp. 30-31. Barrera's
complaints of back and right knee pain, relieved by Tylenol
#3, were assessed as related to childhood stress and
violence. Id. During his October 31, 2012 chronic
care clinic, Barrera requested a bottom bunk but had no other
complaints. Id., pp. 32-33.
February 21, 2013 chronic care clinic, Barrera complained of
right back and left heel pain. Id., pp. 34-35. Dr.
Didden noted Barrera had a limb length discrepancy (LLD) that
was a probable source of the pain. Id. Dr. Didden
advised Barrera that remaining on the pain medications
prescribed in October 2012 during a consult with an
orthopedic surgeon could be harmful, and suggested Barrera be
referred for orthotic fitting before his pain medications
were adjusted. Id. The Tylenol #3 prescription was
March 11, 2013, Barrera received orthotic shoes with an
insert/lift. Five days later, on March 16, 2013, he received
heel cups. Id., pp. 36-37.
14, 2013, Dr. Morgan discontinued Barrera's Tylenol #3
and prescribed 600 mg of Neurontin twice daily. Id.,
pp. 40-42. Dr. Morgan noted Barrera had a knee brace and cane
but walked without a limp and had no effusion or outward
abnormality of gait. Id. He was mildly limited when
squatting but bent over easily. Id. Dr. Morgan
determined there was no medical indication for a bottom bunk
order or knee brace, a decision with which Barrera disagreed.
a May 18, 2013 sick call visit, Barrera asked a nurse for a
bottom bunk order. The nurse indicated only a provider could
issue such an order and the provider had just determined it
was not medically indicated. Barrera was observed walking
with a good strong gait, bending the right knee and using
both legs equally. Id., p. 43.
1, 2013, Barrera complained to PA Jamison that Dr. Morgan had
cancelled his orders for bottom bunk, a knee brace and cane.
Id., p. 44. PA Jamison spoke with the medical
director who thought the diagnosis was accurate and that
Barrera did not need to be seen ahead of his next chronic
care clinic. Id.
25, 2013, Barrera saw Dr. Morgan at a scheduled provider
visit to discuss his non-compliance with Neurontin.
Id., p. 45. Dr. Morgan noted Barrera's limp
markedly improved when he was not under direct observation.
an August 5, 2013 chronic care clinic, Dr. Morgan noted
Barrera was compliant with Neurontin. Id. at 46-47.
Barrera complained of a swollen knee after custody staff
confiscated his knee brace, but Dr. Morgan saw no swelling.
Id., pp. 46-47. There were no unfulfilled orthopedic
November 4, 2013 chronic care clinic, Barrera's right
knee was not swollen or tender. The Neurontin prescription
was renewed. Id., pp. 48-49. The visit was
terminated when Barrera demanded a knee brace and cane.
Id. On March 14, 2014, Barrera's prescriptions
for Neurontin and Ibuprofen (a non-steroidal
anti-inflammatory drug or NSAID) were renewed. Id.,
November 4, 2015, Barrera was seen by Dr. Joubert at a
chronic care clinic. Id., pp. 52-55. He was to be
tapered off Neurontin and instead prescribed a muscle
relaxer, Robaxin. Id. Barrera was using a cane and
told Dr. Joubert he was waiting for a total knee replacement.
December 8, 2015, Barrera complained to Nurse Diaz that his
new pain medications were not working. Id., p. 56,
His right knee had crepitation but full flexion and
extension. Id. Barrera complained of pain rated at
8/10 in both knees and walked with a cane. Id. When
he complained at sick call on December 15, 2015 that
Neurontin no longer stopped his pain, he was referred to a
provider. Id., pp. 57-58.
January 18, 2016, Barrera complained to PA Jamison that he
experienced pain after medication changes and that
Nortriptyline made him vomit. Id., pp. 59-60.
He was referred to the regional medical director for pain
medication suggestions. Id.
February 17, 2016 chronic care clinic, Barrera complained to
Dr. Memarsadeghi of chronic right knee pain and left knee
pain. Id., pp. 61-63. His Nortriptyline dose was
increased to 25mg. Id. His limb length discrepancy
was considered a source of low back pain. Id. An
x-ray of the left knee was ordered. Id. The knee
x-ray, read on February 26, 2016, showed no acute disease in
the right knee, although degenerative joint disease ...