United States District Court, D. Maryland
L. Hollander, United States District Judge.
for the Division of Correction filed a response to this
court's order to show cause why plaintiff Roger Ervin
should not be granted injunctive relief. ECF 10. Shortly
thereafter, Mr. Ervin filed an emergency motion for an
injunction. ECF 12. The court has also received a verified
prison account statement from the finance officer at North
Branch Correctional Institution ("NBCI") indicating
that Mr. Ervin's account has a zero balance. ECF 11. His
motion for leave to proceed in forma pauperis (ECF 5) shall
therefore be granted.
hearing is necessary. Local Rule 105.6. For the reasons
stated below, Mr. Ervin's request for injunctive relief
shall be denied, with the exception noted herein. Service of
the Complaint shall take place in accordance with the
Ervin filed a "Motion Status Report" on August 5,
2019 (ECF 7), indicating that medical staff at NBCI "are
still stopping and starting" his medication requiring
him to "go on hunger strikes to get any kind of
treatment." Id. at 2. The medical care he
requires for glaucoma includes "bilateral intraocular
pressure checks" which, according to Mr. Ervin, have not
occurred since September 20, 2017. Id. Mr. Ervin
received eye surgery to relieve pressure in one of his eyes,
and he states that he was told that he "would be able to
see in four months." Id. When four months
passed, Mr. Ervin still could not see. Id. He
asserts that medical personnel have falsely maintained he has
glaucoma in only one eye; attempted to convince "their
own Opthalmologist Paul Goodman, MD" to also say the
glaucoma was not bilateral; and ignored Dr. Goodman's
directive of September 28, 2017, to have Mr. Ervin seen by an
outside specialist. Id. at 2-3, ¶ 4. Symptoms
Mr. Ervin was suffering at this time included "night
blindness, seeing spots, . . . not being able to see at all
sometimes .... eye pain . . . very bad headaches, and also
white stuff coming out of his eyes, vision lost and cloudy
visual total fields with blackout areas." Id.
at 3, \ 5.
Ervin states that Dr. Goodman told him that '"the
longer they wait the more of your sight you are going to
lose. You are going to lose your left eye to save your right
eye.'" Id. ¶ 6. Mr. Ervin implies that
he has been denied care in retaliation for past actions filed
in this court and was forced to file administrative remedies
"and went into Court" to establish that he is
visually impaired. Id. ¶ 7. Following an
evidentiary hearing in State court, establishing that Mr.
Ervin is "disabled, " Mr. Ervin claims that
"the Warden and his Subordinates [said], 'we are not
going to send you out until you are totally blind since you
like telling the Court what is going on in our
prison.'" Id. ¶ 8.
response to the order to show cause is supported by both
statements under oath and verified medical records. ECF 10.
Asresahegn Getachew, M.D., who is the regional medical
director employed by the contractual medical care provider
for the Division of Correction, Corizon Health, Inc.,
provided a Declaration under oath discussing Mr. Ervin's
past and current medical care for his glaucoma. ECF 10-3. Dr.
Getachew explains that Mr. Ervin suffered an injury to his
left eye prior to his incarceration, which caused traumatic
glaucoma in that eye. Id. at 3, ¶
The traumatic glaucoma was surgically treated by Dr.
Higginbotham before Mr. Ervin was incarcerated. Id.
The procedure, trabeculectomy, "lowers the interocular
pressure by making a small hole in the eye wall, covered by a
thin trap-door in the sclera." Id. According to
Dr. Getachew's review of Mr. Ervin's medical history,
the procedure was effective in reducing the pressure in Mr.
Ervin's left eye. Id.
Getachew states that Mr. Ervin was "monitored by
ophthalmology and prescribed medications to treat
glaucoma" during his incarceration, but in "late
2016, the trabeculectomy began to scar and his eye pressure
increased." ECF 10-3 at 3, ¶ 8. To address the
problem, Mr. Ervin was scheduled for another procedure in
February of 2017 at Bon Secours Hospital for placement of an
"Ahmed tube shunt" in his left eye. Id.
Dr. Summerfield was the doctor providing care to Mr. Ervin.
The purpose of the shunt was to "allow drainage of
excess fluid in the eye, " which is reabsorbed by the
body. Id. Mr. Ervin declined the surgery and was
returned to NBCI and prescribed "the maximum dosage of
medication to control his eye pressure." Id.
The medication was not effective in controlling the pressure
in Mr. Ervin's eye, but he continued to refuse the
surgery until June of 2017. Id. ¶ 9. By the
time Mr. Ervin consented to the surgery he had "lost
significant central vision in his left eye."
Summerfield performed the surgery to Mr. Ervin's eye,
which successfully reduced the pressure in his left eye. ECF
10-3, ¶10. On August 23, 2017, an examination of Mr.
Ervin's eye revealed that the surgically implanted tube
was exposed, representing a "possible conduit to allow
infection into the eye." Id. At the time this
was discovered, Mr. Ervin had not yet developed an infection
in his eye. But, due to the risk of one, Mr. Ervin was
scheduled for revision of the procedure on September 20,
2017, to be performed by Dr. Goodman. Id.,
¶¶ 10, 11.
preparation for the surgery at Bon Secours Hospital, Mr.
Ervin was examined by Dr. Ashraf at NBCI, who noted the
following chronic conditions: "glaucoma; blepharitis,
(inflammation of the eyelids); and conjunctivitis
(inflammation or swelling of the conjunctiva of the
eyes)." ECF 10-3 at 4, ¶11. The day before the
scheduled surgery, Mr. Ervin was transferred to Jessup
Correctional Institution ("JCI"), but Mr. Ervin
again refused to undergo surgery. Id. ¶ 12. Mr.
Ervin was advised of the negative effects his refusal could
have, including infection and loss of vision, but he was
unpersuaded. Id. The exposed shunt was instead
covered temporarily, an "early refill" of
ophthalmologic eye drops was requested, and he was
transferred back to NBCI on September 21, 2017. Id.
Mr. Ervin reported pain in his left eye on September 27,
2017, Dr. Ashraf prescribed Ultram, a narcotic pain
medication, to address the pain. Id. at 4-5,
¶14. In addition, Mr. Ervin was prescribed
"brimonidine tartrate 0.2% ('Alphagan');
dorzolamide HCL/timolol maleate ('Cosopt'); . . .
latanoprost ophthalmic 0.005 % ('Xalatan') . . .
[and] also received moxifloxacin HCL, 0.5%
('Vigamox') to address bacterial conjunctivitis"
prophylactically. Id. ¶ 15.
on Mr. Ervin's refusal to consent to surgery, Dr. Goodman
made a recommendation that Mr. Ervin should be referred to an
outside glaucoma specialist. Id. ¶ 16. On
October 11, 2017, Dr. Goodman examined Mr. Ervin and noted
the tube exposure remained unchanged and that Mr. Ervin was
still awaiting a referral to an outside glaucoma specialist.
Id. ¶ 17. Meanwhile, Dr. Goodman recommended
that Mr. Ervin continue to take medications to control the
glaucoma. Id. Later that month, Mr. Ervin was given
a full year's prescription for Vigamox, the prophylactic
antibiotic prescribed to protect his eyes from infection due
to the exposed tube. Id.
Ervin injured his back in late 2017 or early 2018. ECF 10-3
at 6, ¶19. Mr. Ervin was seen on November 21, 2017, by
Holly Pierce, CRNP, for his complaint of lower back pain. ECF
10-4 at 233. He told Ms. Pierce that he "had two discs
removed in 2016" and that it was his understanding that
"Ultram, Baclofen and Neurontin should never be stopped
for any reason." Id. When Ms. Pierce attempted
to discuss the indications for each of the medications
mentioned, Mr. Ervin became angry and said, "you will
hear from my lawyer." Id.
April 8, 2018, Mr. Ervin again reported experiencing lower
back pain that interfered with his ability to walk. ECF 10-4
at 224-5. He was examined by Ms. Pierce, who noted that Mr.
Ervin was requesting "Neurontin and Ultram or a
wheelchair" for treatment of his back pain. Id.
at 224. Ms. Pierce prescribed warm compresses, lower back
exercises and stretches, Celebrex and Capsaizin. Id.
at 225. In addition, Ms. Pierce put in an order for an x-ray
of Mr. Ervin's lower back. Id.; see also Id . at
226 (X-ray requisition form). The x-ray was ...