Curry v. Ashraf

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge.

         THIS MATTER is before the Court on Defendant North Branch Correctional Institution's (“NBCI”), Motion to Dismiss (ECF No. 11), Defendants Mahboob Ashraf, M.D. (“Dr. Ashraf”), Dawn Hawk, R.N. (“Nurse Hawk”), and Tara Cottrell, R.N. (“Nurse Cottrell”)'s (collectively the “Medical Defendants”), Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 16), and Motion to Strike Surreply (“Motion to Strike”) (ECF No. 21). The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will grant NBCI's Motion. The Court will also grant Medical Defendants' Motion and deny their Motion to Strike.

         I. BACKGROUND^[1]

         On August 15, 2017, Plaintiff Daryl J. Curry, an inmate at NBCI, injured his thumb in a fight with another inmate. (Compl. at 1-2, ECF No. 1).^[2] Curry was seen by Nurse Dawn Hawk, who told him that would see a medical provider that day. (Id. at 1-22). Nurse Hawk notified a medical provider that day, ordered an x-ray of Curry's right thumb, placed a request for a follow-up appointment with a provider, ordered ice and Motrin 200 mg every eight hours for pain, as well as an ace wrap. (Med. Defs.' Mot. Dismiss Summ. J. [“Defs.' Mot.”] Ex. 1 at 2-3 [“Medical Records”], ECF No. 16-4). Curry was not seen by a provider that day. (Compl. at 3). During the next shift, “a little after 3:00 p.m., ” Curry told Nurse Breauna Baker (“Nurse Baker”)^[3] that he was supposed to see a medical provider. (Id.). Baker told him she did not know anything about it, but she had been instructed to wrap Curry's thumb with an ace bandage. (Id.). Baker also gave him twelve tablets of ibuprofen 200 mg. (Id.).

         Two days after the injury, on August 17, 2017, at about 9:00 a.m., Curry was taken to the infirmary for an x-ray. (Id.). He was informed the x-rays showed his right thumb was fractured and he would be treated by a prison medical provider. (Id.).

         The following day, August 18, 2017, Curry informed Nurse Cottrell about his x-ray results and expressed a need to be seen by a medical provider. (Id. at 4). Nurse Cottrell said she would look into it. (Id.). In a medical note dated August 18, 2017, Nurse Cottrell noted that Curry's x-ray results were not in the Electronic Patient Health Record (“EPHR”) at that time. (Pl.'s Opp'n Ex. 1 at 4, ECF No. 18-1).^[4] Cottrell wrote: “Plan of care is to keep hand wrapped, elevated, and apply ice. Patient should take Motrin for pain until seen by a provider.” (Id.). The x-ray report is needed to refer an inmate to a provider for additional treatment decisions. (Getachew Aff. ¶ 6, ECF No. 16-5).

         On August 19, 2017, Nurse Cottrell informed Curry there was no record of his x-ray. (Compl. at 4). Curry gave Nurse Cottrell the name of the officer who had escorted him to the x-ray department so that his need to see a medical provider could be verified through the officer. (Id. at 4-5).

         On August 20, 2017, Nurse Cottrell told Curry the only reason that he had not been treated yet was that it was a weekend.^[5] (Id. at 5). Nurse Cottrell assured him that he would be seen and treated the first thing on Monday. (Id.).

         On August 21, 2017, Curry informed Nurse Cottrell that he was still waiting to be seen and treated. (Id.). She promised to look into it. (Id.). On the two following days, Curry again reminded Cottrell that he was still waiting for treatment of his broken thumb. (Id. at 5-6).

         Curry's x-ray results became available on the EPHR on August 23, 2017, and Nurse Cottrell referred him to a medical provider the same day. (Getachew Aff. ¶ 7; Pl.'s Opp'n Ex. 1 at 5; see also id. at 3). The August 23, 2017 medical record, created by Nurse Cottrell, states that when she checked the day before, Curry's x-ray results were not in the record at that time. (Pl.'s Opp'n Ex. 1 at 5). In his Surreply, ^[6] Curry disputes the date this information became available. (Pl.'s Surreply at 3, ECF No. 20). He argues “if you look at my x-ray it says it was placed on the computer on August 21, 2017. (Id.; ECF No. 18-1 at 4). Curry is correct in his assertion that the x-ray report is dated August 21, 2017. It is unclear whether August 21, 2017, is the date the results were entered in the EPHR as alleged.

         On August 23, 2017, at approximately 1:15 p.m., Dr. Ashraf set the cast on Curry's right thumb. (Compl. at 6). When Curry asked why he had to wait so long for treatment, Dr. Ashraf responded that he did not have anyone to assist him in placing the cast. (Id.). Curry notes that he had to use his left hand to help Dr. Ashraf set the cast. (Id.). Dr. Ashraf prescribed 600 mg of ibuprofen twice daily for Curry's reported pain and instructed him to avoid the gym, recreation, and showers until Dr. Carls, an orthopedist, examined him. (Pl.'s Opp'n Ex. 5 at 6, 8-9). Dr. Ashraf placed a request for an orthopedic consultation for Curry. (Id. at 9).

         On September 25, 2017, Dr. Ashraf saw Curry at the chronic care clinic. (Medical Records at 11). Curry presented no complaints about his right thumb. (See id.). Dr. Ashraf renewed Curry's ibuprofen prescription until December 25, 2017. (Id. at 13).

         On September 7, 2017, Curry filed an Administrative Remedy Procedure (“ARP”) Request, NBCI 2013-17, to complain that after he reported he injured his thumb on August 15, 2017 and had x-rays taken on August 17, 2017 that showed the thumb was fractured, he waited until August 23, 2017 to meet with a medical provider. (Pl.'s Opp'n at 14-15). On November 14, 2017, the Acting Warden dismissed the ARP as without merit since he was receiving medical treatment for the injury. (Id. at 14).

         On November 30, 2017, Dr. Carls examined Curry‘s thumb. (Medical Records at 14). Dr. Carls found the fracture was well aligned and treated with a cast. (Id.). The interphalangeal (IP) joint of the right thumb was stiff, flexed down only twenty degrees, and had mild tenderness. (Id.). Dr. Carls' assessment was that the fracture healed with good alignment but there was stiffness in the IP joint, which he explained to Curry as very common. (Id.). Dr. Carls suggested physical therapy could help, and then if he did not improve, a hand surgeon should be consulted. (Id.). Dr. Carls advised Curry that while it is very difficult to reach full range of motion, it “definitely could be improved.” (Id.).

         On January 11, 2018, Curry filed another ARP, NBCI 0099-18, alleging that he had not been provided follow-up treatment since he broke his thumb on August 15, 2017. (Id. at 16-17).

         At the heart of Curry's Complaint is his belief that too much time passed between August 17, 2017, when x-rays showed his right thumb was fractured and August 23, 2017, when a cast was placed on his thumb. Curry asserts that in the interim, his thumb was so painful that he was unable to sleep because his hand got stuck in his sheets “and it felt like my thumb was being ripped from my hand.” (Compl. at 6-7). Curry states that twice daily he is handcuffed from behind and he walks to the medical unit for insulin to manage his diabetes. (Id. at 7). When handcuffed, Curry's thumb rubbed against his buttocks, causing him to suffer extreme pain. (Id.). He also claims he could not eat unless officers handed him his tray through the slot in his cell door because he was unable to grab the tray. (Id.). Curry asserts that as soon as the cast was set 99% of his pain was alleviated. (Id.). In Curry's view, if there were insufficient medical staff available to treat his fractured finger, then he should have been sent to a hospital. (Id. at 6).

         On August 9, 2018, Curry, proceeding pro se, sued Defendants. (ECF No. 1). The Complaint alleges that Defendants acted with deliberate indifference to Curry's serious medical needs after he fractured his right thumb in violation to the Eighth Amendment to the U.S. Constitution. (Compl. at 7). Curry seeks $10, 000 in nominal, compensatory, and punitive damages. (Id. at 8).

         On September 13, 2018, NBCI filed its Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 11). To date, the Court ...