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Mondowney v. Baltimore County Detention Center

United States District Court, D. Maryland

July 18, 2019




         Plaintiff Derrick Mondowney, who is self represented, has filed a civil rights suit against several defendants, pursuant to 42 U.S.C. § 1983. He complains that he was denied constitutionally adequate medical care while he was detained at the Baltimore County Detention Center (“BCDC”).[1]

         Defendants Sergeant Ronald Church, Jr. and Sergeant Martin Leak[2] (“Correctional Defendants”) have moved to dismiss or, in the alternative, for summary judgment. ECF 38. Their motion is supported by a memorandum of law (ECF 38-1) (collectively, “Correctional Motion”) and exhibits. Defendants Correct Care Solutions, LLC and Zowie Barnes, M.D. (“Medical Defendants”) have filed a motion for summary judgment (ECF 49), supported by a memorandum of law (ECF 49-1) (collectively, “Medical Motion”) and exhibits. Plaintiff opposes both motions. ECF 41; ECF 54. The Medical Defendants have replied. ECF 56. Plaintiff has also filed motions for summary judgment. ECF 53; ECF 55.

         No hearing is necessary to resolve these motions. See Local Rule 105.6. For the reasons that follow, defendants' motions, construed as motions for summary judgment, shall be granted. Plaintiff's summary judgment motions shall be denied.[3]

         I. Background A.

         Plaintiff's allegations

         In a prior Memorandum Opinion, issued by this Court on September 11, 2018, I summarized plaintiff's allegations, as follows, ECF 35 at 3-7:[4]

Plaintiff alleges that on August 30, 2016, he suffered a stroke and was sent to the University of Maryland St. Joseph Medical Center, where he remained until September 2, 2016. Case II, ECF 1-1 at 4.[] His discharge instructions included orders for medication as well as physical and occupational therapy. Id. On October 12, 2016, he underwent assessment at the University of Maryland Medical Center Rehabilitation Department, so that a course of treatment could be developed. Id.
Plaintiff states that as a result of this assessment, several medical appointments were scheduled for him between October 28, 2016 and November 30, 2016. Id. at 5.
According to plaintiff, on numerous occasions the correctional escort staff caused him to be late for his medical appointments. As a result, he missed ten appointments essential to his health. Id. at 9.
For example, plaintiff asserts that he arrived over an hour late for his first therapy session, scheduled on October 28, 2016, and therefore he was declined treatment. ECF 1-1 at 5. He was scheduled for a morning appointment on November 2, 2016, but because he arrived late it was rescheduled to the afternoon. Id. The afternoon appointment was cancelled because he was again late. Id. Sgt. Leake, who is in charge of the processing area at BCDC, on learning that the appointment was cancelled, advised plaintiff that “‘if [he] wanted compassion or adequate medical care, [he] should have stayed home . . . It does not affect my pay check.'” Id. at 7. Plaintiff adds that he also missed appointments scheduled for November 4, 9, 11, 18, 23, 25, and 30, 2016. Case II, ECF 1-1 at 7.
Plaintiff is confined to a wheelchair. Therefore, he expresses concern that the lack of appropriate rehabilitation will consign him to remain wheelchair bound, without “a decent quality of life . . . .” Id. at 6; see also Id. at 8.
On November 11, 2016, plaintiff sent a request to medical staff regarding the difficulty in his being processed and transported to his physical therapy appointments. Id. at 7. Sgt. Church, who was in charge of processing inmates for transport, was contacted “with no success.” Id.
Plaintiff was transported to the University of Maryland Medical Center Rehabilitation Department on November 16, 2016, but again arrived late and was declined treatment. Id. The physical therapist provided plaintiff a request to give to Dr. Barnes and Bonita Cosgrove so that plaintiff could have access to his tennis shoes in order that plaintiff could practice the exercises he would have performed during physical therapy. Id. at 7-8. Plaintiff explains that the tennis shoes were necessary to provide “sure footing and support” while performing his exercises, rather than conducting the exercises in the shower shoes provided by the institution. Id. at 8. Plaintiff indicates that the request was not acknowledged and access to his tennis shoes was denied. Id.
Mondowney submitted a grievance regarding the occurrences to S. Verch, Bonita Cosgrove, and Deborah Richards. Case II, ECF 1-1 at 8. He received a response to the grievance indicating it was partially substantiated but that no further action would be taken. Id.
On February 7, 2017, Lt. Chaddick took plaintiff's rolling walker that had been issued to him pursuant to the order of Mike Swoboda, the Physical Therapist at the University of Maryland. Id. at 20. Lt. Chaddick advised plaintiff that he was acting on the orders of Dr. Barnes. Id.
Further, plaintiff alleges that on February 9, 2017, Captain Swainn advised him that the water to the shower in his cell had been turned off to insure that plaintiff did not use the shower, because it was not a shower approved under the Americans with Disabilities Act. Case II, ECF 1-1 at 17. He was advised that if he wanted to shower he needed to do it during the 7 am-3 pm shift in a different area. Id. Plaintiff states that the alternative shower was not ADA approved either, as it was not wheelchair accessible nor did it have an attached shower chair. Id.; see also Id. at 25-34. (Plaintiff's ADA complaint forms filed with the ADA Coordinator for Baltimore County).
Plaintiff indicates he advised all medical staff of the numbness in his right leg when he gets out of bed for the day. Id. at 17. He claims that Dr. Barnes refused to address the issue despite other medical providers submitting sick call forms on his behalf. Id. at 17-18. Further, he claims that he advised medical staff of his desire to comply with the tasks assigned but needed to do them when blood was circulating or he had sensation in his leg. Id. at 18. According to plaintiff, being forced to shower and exercise during the day shift placed him at a risk of harm due to the numbness in his leg during that portion of the day. Id. at 19.
In addition, plaintiff alleges that Dr. Barnes tried to force him to do exercises and threatened to take his walker away if he did not do the exercises when she wanted him to. Id. at 21-23. He claims that Dr. Barnes required him to complete the physical therapy exercise during specific times, not at night as he had been doing, despite plaintiff explaining that “he did not have any feeling in his right leg.” Id. at 21. Plaintiff also explained that the physical therapist had directed him to wait to do the exercises until the “pins and needles sensation” has subsided.” Id. at 21, 22, 23. Plaintiff alleges that Dr. Barnes directed his therapy be done in the “‘bull pen'” in the medical unit on a 1.5 inch pad, which plaintiff indicates is not appropriate due to the weakness he experiences. Id.
According to plaintiff, as a result of filing a civil rights case, his walker was removed, physical therapy was decreased, and his medical documentation revised to indicate he could walk without an assistive device. Case II, ECF 1-1 at 35. He also claims that he was transported from BCDC to JCI on the floor of the vehicle rather than in a seat, and that after review of his medication documentation at the Jessup Regional Hospital “it was determined that the previous treatments, including physical therapy, were not effective and a consultation with a nerve specialist would be necessary to determine the next course of treatment.” Id.

         B. Defendants' Response

         The defendants have produced numerous exhibits to support their contention that plaintiff's claims lack merit.

         A medical note was entered in plaintiff's chart on May 27, 2016, indicating that he was a recent admission to BCDC with a history of lumbar degenerative joint disease and lumbar surgery in February 2016. He reported he had occasional right leg paresthesia. He tolerated Mobic and was on an opiate detox protocol. ECF 48-3 at 37-38.

         On May 28, 2016, plaintiff was able to walk with a steady gait and with no assistive device. He had no significant issues with detox. He was cleared for general population, with a bottom bunk and bottom tier status. His lifting was restricted to nothing more than 15 pounds and he was also restricted from using the gym, recreation, or working. ECF 48-3 at 37.

         The following day, plaintiff was reportedly irate when he was removed from medical housing to the general population. ECF 48-3 at 37. That same day, plaintiff reported that he was a fall risk in a general population cell due to the low height of the bed and toilet and as such he was returned to the medical ward. Id. The regional medical director, Dr. Jerkins, approved plaintiff's remaining in the medical ward for the balance of his sentence based on plaintiff's reporting that he was a fall risk and because his medication would be brought to him. It was noted that the toilet heights are the same throughout the facility. Id. at 36.

         On May 30, 2016, plaintiff was found beating on the door of his cell with a metal rod he had taken from the shower curtain, complaining that he could not lie down on his bunk, and that he was suffering pain in the middle of his chest. He also complained about unspecified things he claimed the doctor had promised him. ECF 48-3 at 36. Later that day he advised staff that he would not eat because he wanted to avoid defecating due to the toilet being too low and his being afraid he would fall. Id. The following day he was provided a portable handicap toilet seat which he reported was helpful. Id. at 35. He also continued to receive treatment for lower back pain. Id.

         A medical note was entered on August 20, 2016, stating that plaintiff was not eating because his meals were not kosher. He was advised regarding the procedure to have his diet changed and an unidentified sergeant indicated he would get plaintiff a bag lunch. ECF 48-3 at 34. On August 23, 2016, plaintiff refused his meal trays. He advised a nurse: “I think I had a stroke last week, and ya'll aint do nothing for me, I aint eating til I get a kosher tray. I aint eating this gar[b]age food.” Id. But, he refused to go to the medical unit. Id. On August 25, 2016, plaintiff ate his lunch. Id.

         At approximately 4:21 p.m. on August 30, 2016, plaintiff was brought to the medical unit due to his involvement in a fight with another inmate. ECF 48-3 at 33. No. lacerations or abrasions were observed. He was offered a cold compress and pain medication and directed to follow up with medical staff as needed. Id. He returned to his housing tier. Id.

         Several hours later, at approximately 7:10 p.m., plaintiff retuned to the medical unit complaining of chest pain radiating to his left arm over the past hour. He was laid down and given aspirin and oxygen. An EKG could not be obtained due to plaintiff's movement. Staff noted that plaintiff's “right arm became flaccid and appeared to not be able to grip my hand.” ECF 48-3 at 33. He was described as sweating profusely and he was given nitroglycerin. Id.

         An ambulance was called, and plaintiff was transferred from BCDC to the University of Maryland, St. Joseph Medical Center, where he was described as presenting with right sided weakness. ECF 48-1 at 3. Plaintiff initially complained of “chest discomfort and mild [shortness of breath], after being involved in some sort of physical altercation where he was struck in the [right] clavicular area with an open hand.” Id. He advised staff that he fell back into a chair and hit the right side of his neck after which he developed “pins and needles” in his right arm and leg and then suffered from complete right sided paralysis. Id.

         Plaintiff's initial NIH stroke assessment score improved over time. Id. A CT scan of the head and cervical spine were both negative for signs of injury. Id. The emergency room consulted with the neurology department and tPA[5] was initiated. Plaintiff continued to have minimal movement of his right leg, but experienced improvement in his right arm. He was admitted to the ICU for further neurological monitoring and treatment. Id.

         On August 31, 2016, plaintiff underwent an MRI of the brain, which showed no abnormalities. ECF 48-1 at 3. He was started on aspirin. A complete stroke “work up, ” which included an ultrasound of plaintiff's carotid arteries, was negative. An echocardiogram showed no evidence of an interatrial septal shunt. However, moderately depressed left ventricular function was observed. During plaintiff's hospitalization he exhibited bradycardia, and sinus brady with a heart rate in the 50s. Id. His blood pressure remained stable. Cardiology examined plaintiff and started him on Aldactone, [6] Beta blockers, and other medication to lower his blood pressure. Plaintiff's cardiomyopathy did not appear to be due to restrictions in blood supply and it was noted that it could be related to a viral illness plaintiff suffered the previous year, given his reported shortness of breath. Id.

         At the time of his discharge from the hospital on September 1, 2016, plaintiff's neurological function was described as unchanged. He continued to have slightly decreased strength in the right lower extremity, but the upper extremity deficits had resolved. ECF 48-1 at 3. It was also noted that plaintiff could bear weight with physical therapy. Neurology evaluated plaintiff and “thought that there was no evidence of a clinical stroke.” Id.

         Plaintiff returned to BCDC on September 1, 2016. ECF 48-3 at 33. It was noted that he had been admitted to the hospital for “CVA, [7] Cardiomyopathy and bradycardia.” Id. He was described as stable with right sided weakness that was more pronounced in his right leg and he used a wheelchair for mobility. Id. at 32-33.

         On September 2, 2016, Dr. Barnes entered the following medical note in plaintiff's chart, ECF 48-3 at 32:

Inmate is a 47 y.o AAM who has been on the radar of medical for a few days. It is documented that inmate reported having a stroke to Director of Nursing Rawlerson on 8/23/16 during which time he was refusing NOT to eat because he wanted a Kosher Diet. At the same time, Inmate stood up and cursed at DON Rawlerson while moving all 4 extremities.
It is reported by Security that on the evening in question, inmate got up from a wheelchair (which was not given to him by medical), walked to another inmate without difficulty and struck him. Inmate however goes to the hospital and reports that he was struck in the right clavicular region and fell back (which is not documented). Inmate did receive tPA which should lysed [sic] any clots however all imaging has been negative.
Inmate seen this morning and reporting weakness in his right leg and numbness in his right hand. Vitals were WNL.
There is significant concern for malingering. Weakness is very subjective however Inmate's reports and actions have been inconsistent.
Will order EMG of the right upper and lower extremities to document accordingly. Inmate to be transferred to lock up. Most likely transfer inmate tonight.

         Nursing notes for September 2-4, 2016, indicate plaintiff was seen in his bed; that he reported dizziness, lightheadedness, and right sided weakness; he was able to move all extremities; and he was instructed to get moving in order to regain his upper body strength. ECF 48-3 at 31-32. On September 4, 2016, plaintiff requested a wash basin, which was granted, and expressed to medical staff his fear of falling in the shower. ECF 48-3 at 31. It was noted that plaintiff denied medical attention when offered. Id.

         The following day, plaintiff was observed using his right arm and hand without difficulty. ECF 48-3 at 31. Later that day, plaintiff complained of left mid-sternal chest pain. Later, he advised a correctional officer that his chest pain had resolved, and he had gas. ECF 48-3 at 30.

         Nursing notes from September 6, 2016, show that plaintiff remained on the medical ward and that he was observed moving his right upper extremity without difficulty. He also reported dizziness. Id. That same day, Dr. Barnes entered a note that plaintiff moved his right leg with assistance and was able to use his upper body to transfer from the bed to the wheelchair, despite having reported weakness in his right upper arm. Id. Dr. Barnes also noted that there remained concerns about plaintiff malingering and that overall he was stable and remained on the medical unit due to his wheelchair use and segregation status. Id.

         On September 7, 2016, plaintiff reported decreased strength in his right leg. When asked to push against the nurse's hand it was reported that both the right leg and right arm were strong and could push against resistance. He was encouraged to continue to move to increase his body strength. ECF 48-3 at 29.

         The following day it was again noted that strength testing of plaintiff's right arm and leg were 5 out of 5. ECF 48-3 at 28. On September 9, 2018, staff indicated plaintiff would be transferred to wheelchair accessible housing, as no acute interventions were being provided on the medical ward. Id.

         On September 30, 2016, Dr. Barnes referred plaintiff for a physical therapy evaluation due to secondary right lower extremity weakness. ECF 48-2 at 2. He was evaluated by Michael Swoboda, Physical Therapist, on October 12, 2018. Id. Plaintiff complained of difficulty walking and weakness of the right leg. Id. The therapy notes indicated that plaintiff was ...

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