Burns v. Ashraf

          MEMORANDUM

          JAMES K. BREDAR CHIEF JUDGE.

         Plaintiff Da'Juan Burns, an inmate at North Branch Correctional Institution of the Maryland Department of Corrections (DOC), sues various officials and medical providers affiliated with North Branch for violating his constitutional right to receive adequate medical care. Burns sues Wexford Health Source, Chief Medical Officer Asrehahegn Getachew, Doctors Mahboob Ashraf and Ali Yahya, Nurses William Beeman and Tammy Buser, and Nurse Practitioners Holly Pierce and Krista Self^[1] ("Medical Defendants"); Correct Rx Pharmacy Services and John Doe Pharmacist ("Pharmacy Defendants"); and, DOC Commissioner Dayena Corcoran and Correctional Officer Michael Turner ("State Defendants"). Now pending before the Court are Burns's motion for injunctive relief; Defendants' three separate motions to dismiss or, in the alternative, for summary judgment; and, Burns's motion to bar consideration of summary judgment. No. hearing is required. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, the Court will deny Burns's motion for injunctive relief, dismiss all defendants except Nurse Buser and Officer Turner, and deny without prejudice summary judgment as to Nurse Buser and Officer Turner, the two remaining defendants.

         I. Background

         A. Allegations of the Complaint

         Burns, a North Branch inmate, filed a pro se complaint, pursuant to 42 U.S.C. § 1983, alleging that various North Branch officials and medical providers violated his constitutional right to receive adequate medical care. (Compl., ECF No. 1; Supp. Compl., ECF No. 20.) In summarizing the allegations of the complaint, the Court construes all facts in the light most favorable to the plaintiff, as is required on a motion to dismiss. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). Courts construe pro se complaints liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

         In the complaint, Burns alleges that he suffers from varicocele, which, while sometimes benign, can be a symptom of several serious medical conditions. (Id. ¶¶ 15-17.) Burns alleges that, consequently, "all varicocele patients should be examined ... for the possibility of a serious medical condition underlying their varicocele." (Id. ¶ 18.) A proper physical examination includes examinations in both standing and supine positions. (Id. ¶¶ 19-21.) "[A] varicocele persisting in the supine position is a danger sign that indicates the existence of a serious medical condition underlying the varicocele and the need for additional imaging testing to uncover exactly what that serious underlying medical condition is." (Id. ¶ 22.) Previously, Burns underwent "a failed surgery attempt" to alleviate his varicocele, which damaged his testicular veins. (Id. ¶ 128.)

         Medical Defendants knew of Burns's varicocele and did not grant his request to see a urologist. As early as August 2016, Doctor Ashraf and Nurse Self were aware that, since his incarceration in Maryland, Burns had not been properly examined to rule out the existence of a serious medical condition underlying his varicocele. (Id. ¶¶23, 29-34.) Between August 2016 and August 2017, they never provided such an examination, and they never ensured that a urologist examine Burns to confirm or rule out the existence of an underlying condition. (Id. ¶¶ 26, 28, 34.)

         Medical Defendants were also treating Burns for bodily pain. In September 2017, Doctor Ashraf discontinued Burns's prescription for Neurontin, which Burns was taking for back pain. (Id. ¶6l.) Doctor Ashraf placed Burns on Cymbalta. (Id. ¶ 63.) Burns reacted poorly to Cymbalta, suffering nausea, among other things. (Id. ¶ 66.)

         In August 2017, Burns filed an internal complaint, asserting that medical staff had not provided necessary diagnostic testing and that his sick call forms were being ignored. (Id. ¶ 39.) Burns alleges that inmate complaints are reviewed and investigated by Wexford (id. ¶ 40) and Wexford "took no action" to address the complaint and respond to the sick call forms (id. ¶ 47). Commissioner Corcoran has a responsibility to oversee the DOC's contract with Wexford and to ensure that Wexford delivers adequate medical care to those in custody. (Id. ¶ 52.) When Burns's internal complaint came before Commissioner Corcoran, she took no action. (Id. ¶ 56.) Burns alleges that, among Wexford employees at North Branch, "there is a custom of disregarding sick call forms submitted by inmates." (Id. ¶ 35.) Consistent with this custom, sick call forms are regularly ignored, forgotten, or lost. (Id. ¶¶ 36-38.)

         In October 2017, Nurse Self prescribed Tramadol, ^[2] a drug which Burns had used before and which had alleviated his back pain, but the pharmacist would not fill the prescription and did not explain why. (Id. ¶¶ 70-74.) The pharmacist works for Correct Rx, which has an agreement with Wexford and the DOC to provide pharmacy services to state inmates. (Id. ¶¶ 194, 196.) Burns alleges that Correct Rx maintained a policy or custom-one that saved Wexford and the DOC money-of allowing its employees to disregard prescriptions ordered by physicians treating state inmates. (Id. ¶¶ 197-98.) Pursuant to this policy of disregarding prescriptions, Correct Rx and its pharmacist refused to fill the Tramadol prescription. (Id. ¶¶ 197, 199.)

         In December 2017, Doctor Ashraf prescribed Burns Elavil for his back pain even though he knew that Elavil caused Burns negative side effects and had proven ineffective for his pain. (Id. ¶¶ 75-76.)

         A few weeks later, in January 2018, Burns passed out in his cell, falling and cutting open a gash above his eye. (Id. ¶¶ 77-80.) Burns showed Correctional Officer Turner that he was bleeding and asked to see a nurse. (Id. ¶ 81.) Officer Turner told Burns that he described the situation to Nurse Buser but that she told him that Burns could fill out a sick call form, to which nurses usually respond between forty-eight and seventy-two hours. (Id. ¶ 84.) No. nurse ever saw Burns for this injury. (Id. ¶¶ 85-89.)

         At some point, Burns saw Doctor Ashraf again and requested diagnostic testing of his varicocele, but Doctor Ashraf refused his request. (Id. ¶¶ 91-92.) Doctor Ashraf renewed Burns's prescriptions for Elavil and Tegretol, even though Burns pointed out that both drugs were ineffective in alleviating Burns's back pain. (Id. ¶¶ 96-101.)

         Between February and June 2018, Burns saw several onsite medical personnel who referred him to the provider for more treatment regarding both his back pain and his varicocele. (Id. ¶¶ 102-09.) Burns saw the provider, Nurse Practitioner Pierce, on August 17, 2018. (Id. ¶ 111.) Nurse Practitioner Pierce only discussed his varicocele despite his desire to talk about his recurring back pain too. (Id. ¶ 112.) Nurse Practitioner Pierce observed that Burns's varicocele persisted in the supine position-an indication of a serious medical condition, (id. ¶ 22), according to Burns- but denied his request for imaging testing. (Id. ¶¶ 118, 120.)

         After seeing Nurse Practitioner Pierce, Burns saw two doctors. On August 28, 2018, Burns discussed via "telemedicine" his varicocele with Doctor Getachew, who declined to perform any imaging testing and recommended Tylenol for the pain. (Id. ¶¶ 121-25.) On September 1, Burns saw Doctor Yahya, who, like Doctor Getachew, declined to perform any imaging testing and recommended Tylenol. (Id. ¶¶ 126-30.)

         On September 15, Burns saw Nurse Beeman for unrelated issues. (Id. ¶ 130.) Burns mentioned that he had hurt the blood vessels in his eye when he passed out in his cell back in January. (Id. ¶ 131.) Nurse Beeman said there was nothing he could do about that injury because Burns was not bleeding at present. (Id. ¶ 133.)

         To sum up, Burns alleges that the named Defendants failed to perform diagnostic tests of his varicocele and to refer him to a urologist. Defendants ignored his sick call forms. Defendants prescribed ineffective and, sometimes, harmful medication. Defendants failed to respond to a medical emergency. In general, Defendants failed to treat him for his pain. These actions were part of a custom among Wexford and Correct Rx employees to provide less than adequate treatment to inmates. Burns is seeking "declaratory relief, injunctive relief, and money damages" based on these allegations. (Id. ¶ 1.)

         B. Procedure

         Shortly after filing his pro se complaint, Burns filed a pro se motion for a temporary restraining order (TRO) or injunctive relief. (TRO Mot. at 1, ECF No. 5.) Medical Defendants opposed injunctive relief, moved to dismiss, and alternatively moved for summary judgment. (Med. Def. M.T.D. & M.S. J., ECF No. 22.) State Defendants moved similarly. (State Def. M.T.D. & M.S.J., ECF No. 26.) Pharmacy Defendants moved to dismiss and alternatively for summary judgment. (Pharm. Def. M.T.D & M.S.J., ECF No. 58.) Burns pro se moved to bar consideration of summary judgment pursuant ...