Barrera v. Wexford Health Sources, Inc.

          MEMORANDUM OPINION

          RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE

         Plaintiff 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.^[1] ("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.^[2] Barrera alleges that he has not received previously-approved surgery to correct a lateral meniscus tear, ^[3] and remains in pain in violation of the Eighth Amendment. ECF 1, pp. 4-5.

         Now 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), ^[4] and 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, ^[5] IS GRANTED.

         Background

         On 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.

         On May 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.^[6] 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 done so.

         A. Barrera's Allegations

         In his 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 ago." Id.

         B. Defendants' Assertions

         In 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.

         On 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)^[7] 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.

         During 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.

         At his 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 renewed. Id.

         On 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.

         On May 14, 2013, Dr. Morgan discontinued Barrera's Tylenol #3 and prescribed 600 mg of Neurontin^[8] 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. Id.

         During 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.

         On July 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.

         On July 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. Id.

         During 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 consults. Id.

         At his 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., p. 50.

         On 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.^[9] Id. Barrera was using a cane and told Dr. Joubert he was waiting for a total knee replacement. Id.

         On 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.

         On January 18, 2016, Barrera complained to PA Jamison that he experienced pain after medication changes and that Nortriptyline^[10] made him vomit. Id., pp. 59-60. He was referred to the regional medical director for pain medication suggestions. Id.

         At a 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 ...