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Cobey v. Waxford Health Services, Inc.

United States District Court, D. Maryland

August 14, 2019

KENNETH S. COBEY, #185-525, 226017, Plaintiff
WEXFORD HEALTH SOURCES, INC.,[1] PAUL MATERA, M.D., KATHLEEN GREEN, Warden former,[2]RICKY FOXWELL, Warden former,[3] WALTER WEST, Assistant Warden, ROBERT STERLING, M.D., JENNIFER PATTERSON, Registered Nurse, SHEILA KERPELMAN, Nurse Practitioner, BEN OTEYZA, M.D.., DEBORAH TABULOV, Nurse Practitioner, JUANITA STANFORD, Sergeant, CORRECTIONAL MEDICAL SERVICES, INC., BRUCE FORD, Physicians' Assistant, ROBERT HANKE, Assistant Warden Former[4] Individually and in their official capacities, Defendants


          Paula Xinis United States District Judge

         Plaintiff Kenneth S. Cobey, and inmate at Jessup Correctional Institution (“JCI”), filed a verified Complaint asserting an array of constitutional and common law negligence claims arising from treatment received at Eastern Correctional Institution (“ECI”) in connection with his hip replacement. Cobey names as Defendants healthcare providers Correctional Medical Services, Inc. (“CMS”), Wexford Health Sources, Inc. (“Wexford”) and Wexford employees Paul Matera, M.D.; Jennifer Patterson, R.N.; Bruce Ford, P.A.; Sheila Kerpelman, N.P.; Ben Oteyza, M.D.; and Deborah Tabulov, N.P. (the “Medical Defendants”). The Complaint also names Dr. Robert Sterling, a University of Maryland Medical System (“UMMS”) surgeon who performed Cobey's hip replacement surgery in 2004, and Maryland Correctional Defendants Ricky Foxwell, Warden of ECI; Walter West, ECI's Assistant Warden; Kathleen Green and Robert Hanke, ECI's former Warden and Assistant Warden, respectively; and Sergeant Juanita Stanford, who works at ECF's west compound (the “Correctional Defendants”).

         Essentially, Cobey asserts that the Medical Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to provide prompt surgery and other medical treatment for his failing hip prosthetic. The Medical Defendants delayed and deferred proper treatment, and as a result, avers Cobey, he suffers from permanent disfigurement and chronic pain. Cobey further alleges that the Correctional Defendants have retaliated against him for filing several inmate grievances in which he complained about the substandard medical care.

         Both the Medical and Correctional Defendants have filed motions to dismiss or, alternatively, for summary judgment (ECF Nos. 13, 17 and 21) accompanied by affidavits and exhibits. Cobey's response includes exhibits and affidavits to supplement the record evidence (ECF No. 23). The Court has carefully reviewed the submissions and finds no hearing necessary. See Loc. Rule 105.6 (2018). For the following reasons, the motions are granted.[6]

         I. Background

         Cobey filed his first federal suit in 2016, seeking a court order that compelled examination of his hip by an “outside” specialist so that surgery could be scheduled. See Cobey v. Department of Public Safety and Correctional Services, et al., Civil Action No. PX-16-3878 (D. Md. 2016), ECF No. 1, p. 4. Cobey alleged that he had submitted sick call slips concerning his condition since 1996, but did not receive a left hip total arthroplasty, commonly known as a hip replacement, until November 1, 2004. Id., p. 2, ¶¶ 10-11, 13. The Court dismissed certain named defendants who were not subject to suit under 42 U.S.C. § 1983, See Id. (Mem. Op. Dec. 14, 2016, p. 3), and noted that claims against CMS personnel were likely subject to dismissal on statute of limitations grounds because they provided direct medical services to Maryland prisoners from July 1, 2005 through June 30, 2012. Id., p. 3 n. 4. Cobey thereafter voluntarily dismissed his remaining claims without prejudice and the case was closed. See id., ECF No. 8, ECF No. 9.

         In this case, Cobey resurrects and expands the constitutional claims concerning his hip condition.[8] Cobey also brings claims against the Correctional Defendants concerning the prison grievance procedure. The Court first summarizes the facts related to Cobey's medical claims and next separately summarizes the facts surrounding his prison grievances.

         A. Medical History

         Cobey is in his late 50s and suffers chronic pain syndrome, osteoarthritis in his pelvis and thigh, and abscesses. In 2004, Cobey received a total hip replacement and in 2018, underwent hip revision surgery. ECF No. 13-4 (Medical Records); ECF No. 5, Affidavit of Jason Clem, M.D., ¶ 4.

         In late November 2016, Cobey reported to Nurse Practitioner Tabulov at his chronic care appointment that he was complying with physical therapy but recently stopped exercising because of constant pain in his left thigh that he described as a 10 out of 10 in severity. Cobey attributed the pain to his hip prosthesis. ECF No. 13-4, pp. 2-4. Cobey also described weakness in his leg, requiring him to hold on to things to move around. Id. Medical notes document that Cobey's left buttock and thigh muscles had atrophied, that he walked with a limp, and that he had been prescribed Neurontin and Baclofen for pain. Id.

         At a follow-up appointment, Cobey reported that the medications had not lessened his pain, and so his Neurontin was increased from 100mg to 300mg twice daily. Id. at pp. 5-8. Medical notes from a separate appointment on December 20, 2016 reflect, by x-ray, that Cobey's hip hardware was intact and he was suffering from mild degenerative disc disease (DID). Id., pp. 11-13. Cobey reported that he was experiencing constant pain since his 2004 surgery more than 10 years earlier. Id. Cobey was referred for an orthopedics consult. Id.

         On January 17, 2017, Cobey next saw Nurse Practitioner Tabulov. Cobey had yet to receive his orthopedics consult. Id., pp. 14-17. Cobey reported sharp pain, measuring 12 of 10 in severity, that kept him from sleeping, but that he could work because he remained seated at his job. Id. Tabulov increased Cobey's Neurontin dosage to 600mg twice daily and added Indomethacin 25mg twice daily. Id.

         On March 21, 2017, during a telemed consult with orthopedist, Dr. Ashok Krishnaswamy, Cobey reported pain and stiffness that had been plaguing him for the last seven years. Id., pp. 18-21. Dr. Krishnaswamy determined an in-person appointment was warranted, which took place on April 19, 2017. Id., pp. 25-27. At the end of that appointment, Krishnswamy referred Cobey to UMMS for revision surgery. Id.

         On May 4, 2017, Dr. Matera examined Cobey and ordered that he be evaluated by UMMS orthopedics. Id., pp. 28-32. Dr. Matera also increased Cobey's Neurontin dosage to 800mg twice daily. Id. Three weeks later, during a sick call appointment, Cobey reported his left leg was locking up. Id., pp. 33-34. At a follow-up visit, Cobey reported the same problem at sick call and stated he had fallen in his cell. Id., p. 35. Cobey was placed on bedrest and feed-in status until his orthopedic consult. Id.

         Prison medical personnel treated Cobey several more times in the coming months, during which Cobey complained persistently about left hip pain and inquiring about surgery. Id., pp. 36-37-43. When his symptoms worsened, Cobey was transported to UMMS Shock Trauma on August 14, 2017. Cobey was referred to ...

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