United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
§ 1983 civil rights action, the self-represented
plaintiff, Jared Andrew Neisser, a prisoner at Maryland
Correctional Training Center, alleges that defendants acted
with deliberate indifference to his medical needs while he
was housed at Jessup Correctional Institution
(“JCI”). ECF 1; ECF 6. He also complains that he
was denied access to his medical records. Id. The
plaintiff submitted exhibits with his suit.
Wexford Health Sources, Inc. (“Wexford”);
Marnette Valcin, N.P.; Bernard Alenda, N.P.; and Eveline
Bobga Tatong, R.N. have moved to dismiss or, in the
alternative, for summary judgment. ECF 17. The motion is
supported by a memorandum (ECF 17-3) (collectively, the
“Motion”) and several exhibits. Neisser opposes
the motion. ECF 21; ECF 24; ECF 26. Defendants have replied.
hearing his needed to resolve the Motion. See Local
Rule 105.6 (D. Md. 2018). For the reasons that follow,
defendants' Motion, construed as a motion for summary
judgment, shall be granted.
August 21, 2018, plaintiff had an epileptic seizure while he
was in his cell. ECF 1 at 5. Plaintiff states that his
medical records clearly indicate that he suffers from
epilepsy, but Wexford medical staff treated him as though he
were suffering from a drug overdose, rather than from a
seizure, and administered Narcan. Id. He was
transferred to the medical unit where another dose of Narcan
was administered intra-muscularly. Id. Shortly
thereafter, his “legs locked up, ” which
plaintiff attributes to the use of Narcan. Id. He
was then given Benadryl to “stop the reaction.”
Id. The following day, plaintiff was transferred
back to MCTC, where a urinalysis was performed. It showed
that plaintiff had not taken any illegal substances.
filed a grievance regarding the incident. Id. He
maintains that the conduct of the medical providers could
have adversely affected his security status, good time
credits, and release date. Id. Plaintiff also
alleges that unidentified defendants hindered his access to
his medical records by stating that he could only access them
once every six months. Id. at 6. Ultimately,
plaintiff was provided access to the records when he invoked
his rights under the Freedom of Information Act. Id.
Medical Defendants' Response
August 21, 2018 incident
August 21, 2018, at approximately 6:27 p.m., RN Tatong and
Nurse Practitioner Valcin evaluated plaintiff in response to
an emergency medical call. ECF 17-4 at 2-3, 4-5. Custody
staff reported that plaintiff had been found shaking on his
bed and was then moved to the floor. Id. at 2.
note indicates that when she responded to plaintiff's
cell he was found on the mattress, “lying on prone
position . . . .” Id. at 4. Although plaintiff
was breathing, he did not respond to pain or voice stimuli.
Id. He was sweating heavily and there was no
indication of what preceded the change in his mental status.
Id. Tatong noted that when she arrived, plaintiff
was on the floor, sweating, and unable to follow commands.
Id. at 2-3.
approximately 6:35 p.m., a spray of Narcan was
administered. Id. at 2, 4. Plaintiff
immediately opened his eyes and made eye contact. He was
still weak and could not follow commands. Id. at 2,
4. Plaintiff was taken to the medical unit where he was
coherent but remained drowsy, weak, and exhibited slow
speech. Id. At 6:45 p.m. Valcin directed an
intramuscular administration of Narcan. Id. Fifteen
minutes later, plaintiff's speech improved and he was
alert and oriented to person, place, and time. Id.
Plaintiff advised medical staff that he had stopped taking
his seizure medication for some period. Id. He
denied that he had taken illegal drugs. Id. at 4. It
was unclear whether plaintiff was suffering from a
“Post ictal state vs substance abuse.”
Id. He was given Keppra and Tylenol. Id. at
2, 4. Plaintiff responded to the treatment. Id.
approximately 7:51 p.m., plaintiff complained that both of
his legs were “locking up.” Id. at 3, 4.
At the direction of Valcin he was given Benadryl
intramuscularly. Id. A short time later, plaintiff
complained of headache and was provided Excedrin Migraine. He
reported feeling much better and at 10:20 p.m. was discharged
back to his housing unit by Nurse Practitioner Alenda.
Id. at 3, 6.
Oketunji, M.D., a licensed Maryland physician and a Wexford
employee, examined plaintiff's medical records. ECF 17-5
(Affidavit). Plaintiff was 40 years of age at the time, with
a medical history of epilepsy, depression, and other
conditions. ECF 17-5, ¶ 4. He explains that
plaintiff's recovery “was clinically assessed as
ambiguous for either post ictal seizure symptoms or opioid
toxicity.” Id. ¶ 11. But, plaintiff's
rapid increase in responsiveness to Narcan was typical for
opioid toxicity. However, he also displayed symptoms of
recovery from an ictal seizure. Id. The cause of
plaintiff's condition was not apparent at that time.
Id. Moreover, plaintiff “had admitted not
being compliant with Keppra.” Id.
September 10, 2018, plaintiff submitted a sick call slip
requesting to be seen by mental health and complaining that
since the incident at JCI on August 21, 2018, he had
difficulty sleeping and concentrating and was extremely
worried. ECF 17-4 at 7. He was seen by mental health staff
the same day. Id. at 8. Neisser was irritable,
defensive, and angry about the events at JCI. Id.
Plaintiff requested confirmation that medical had done
something wrong and when the mental health provider explained
that it was not his role to make such an assessment plaintiff
became upset and left the appointment. Id.
Nimely, M.D. saw plaintiff on September 10, 2018, for a
chronic care appointment. ECF 17-4 at 9-11. It was noted that
plaintiff's most recent seizure had occurred a few weeks
earlier. Id. at 9. Plaintiff stated that he was not
taking Keppra and wanted to continue Excedrin because it
improved his headaches. Id. Dr. Nimely advised
plaintiff to discontinue use of Excedrin if he had another
seizure and was reminded to be compliant with the Keppra.
Id. Plaintiff's physical examination was
unremarkable. Id. at 9-10.
December 4, 2018, plaintiff was seen again in the chronic
care clinic. ECF 17-4 at 12-14. He had not suffered any
seizures in the previous 90 days and his physical examination
was unremarkable. Id.
Oketunji opines that the mid-level providers who treated
plaintiff on August 21, 2018, followed the appropriate
medical standard of care for treating an unresponsive patient
presenting with plaintiff's clinical conditions. ECF
17-5, ¶¶ 7, 8. He explains that absent an
obstructed airway, obvious impaired circulation or
hypoglycemia, none of which were present in this case, the
standard of care dictated treating plaintiff with Narcan.
Id. ¶ 8.
Dr. Oketunji avers: “In view of the potentially very
serious, and commonly lethal, effects of opioid toxicity . .
. compared to the low incidence of side effects from Narcan,
it is standard medical procedure to administer [Narcan] . . .
for unresponsive patients notwithstanding other potential
sources of unresponsiveness including reported or observed
seizure activity or in a patient with seizure history.”
Id. ¶ 8. He added, id.: [I]n short,
the benefit of using the medication prior to confirmation of
overdose outweigh[s] the risks to the patient particularly in
the prison setting where abuse and overdose on opioids is
common.” Id. In Dr. Oketunji's opinion, to
a reasonable degree of medical probability, the
administration of Narcan was appropriate treatment of
plaintiff's unresponsive condition on August 21, 2016,
and plaintiff did not suffer any significant harm due to its
administration. Id. ¶ 12.
Access to Medical Records
January 26, 2019, plaintiff submitted a sick call slip
requesting his medical records. ECF 17-4 at 15. Subsequently,
he submitted a memorandum stating that the Maryland Public
Information Act mandated he be given his medical records.
Id. at 16. The Department of Public Safety and
Correctional Services limits inmates' access to their
medical records for review and copies to once every six
months. ECF 17-6.
Standard of Review
motion is styled as motions to dismiss under Fed.R.Civ.P.
12(b)(6) or, in the alternative, for summary judgment under
Fed.R.Civ.P. 56. A motion styled in this manner implicates
the court's discretion under Rule 12(d) of the Federal
Rules of Civil Procedure. See Kensington Vol. ...