United States District Court, D. Maryland
DARYL J. CURRY, Plaintiff,
MAHBOOB ASHRAF, et al., Defendants.
L. Russell, III United States District Judge.
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.
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). 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”) 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.).
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.).
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). 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).
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).
August 20, 2017, Nurse Cottrell told Curry the only reason
that he had not been treated yet was that it was a
weekend. (Id. at 5). Nurse Cottrell
assured him that he would be seen and treated the first thing
on Monday. (Id.).
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).
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,  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
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).
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).
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).
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.).
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
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).
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).
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