United States District Court, D. Maryland
K. BREDAR CHIEF JUDGE.
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
("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
Allegations of the Complaint
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).
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.)
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.)
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.
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. ¶¶
October 2017, Nurse Self prescribed Tramadol,  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.)
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.)
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.)
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.)
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,
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.
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.)
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.)
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