United States District Court, D. Maryland
KENNETH S. COBEY, #185-525, 226017, Plaintiff
WEXFORD HEALTH SOURCES, INC., PAUL MATERA, M.D., KATHLEEN GREEN, Warden former,RICKY FOXWELL, Warden former, 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 Individually and in their official capacities, Defendants
Xinis United States District Judge
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”).
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.
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.
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.
case, Cobey resurrects and expands the constitutional claims
concerning his hip condition. 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.
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.
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.
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.
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.
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
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.
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 ...