Ervin v. Corizon Health

          MEMORANDUM

          Ellen L. Hollander, United States District Judge.

         Counsel 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.^[1] 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.

         No 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 accompanying Order.

         I. Background

         Mr. 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.

         Mr. 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.

         Counsel's 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, ¶ 7.^[2] 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.

         Dr. 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." Id.

         Dr. 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.

         In 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. ¶ 13.

         When 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.

         Based 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.

         Mr. 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.

         On 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 ...