Opinion
CIVIL ACTION NO. CCB-03-3682.
March 30, 2007
MEMORANDUM
Procedural History
The original pro se 42 U.S.C. § 1983 civil rights complaint in this case filed on December 31, 2003, involved plaintiff Kevin Ward's allegations that since April of 2003, medical personnel at the Western Correctional Institution ("WCI") had denied him medical treatment and housing for his complaints regarding his left knee. Based upon review of the pleadings and exhibits presented to the court, the undersigned denied summary judgment as to medical defendants Hammond, Van Meter, and Tessema on February 11, 2005. (Docket Entry Nos. 45 and 46.) The court found that while Ward had been seen by prison nurses and offered a "conservative" treatment plan of ice, knee brace, and physical therapy over the course of a two-year period, there was no record that: (1) Ward was referred to or examined by a physician's assistant, physician, or orthopedist for his continuous sick-call requests surrounding his knee; (2) Ward received testing to gain objective data regarding his orthopedic problem; or (3) Ward had received any medication for his complaints of pain. The case went forward as to medical defendants Anna Hammond, Denise Van Meter, and Isaias Tessema, who are employed, respectively, as a nurse practitioner, nurse, and physician at WCI.
While the original claims made a reference to back pain, Ward's complaint primarily concerned the lack of care and treatment for chronic knee pain.
Ward's hands-on treatment was administered only by WCI nursing staff.
Judgment was entered in favor of state defendants Galley, Raley, and Vaughn, and the 42 U.S.C. § 1983 medical claims against defendants Department of Corrections and "Medical Department" were dismissed.
Throughout 2005, issues related to Ward's motion for appointment of counsel and his ability to hire a private attorney given a trust fund established in his name were addressed by the court. In August of 2005, privately-retained counsel entered an appearance on plaintiff's behalf. By court order, Ward's attorney was granted additional time to file an amended complaint on or before February 27, 2006.
In the counseled amended complaint (Docket Entry No. 70), Ward states that he broke both his legs and injured both his knees and his back in an automobile accident in 1985. He alleges continuing problems with his left knee and lower back since that time. He indicates that he has been diagnosed with a slipped disc in his back and that medical records at the Montgomery County Detention Center ("MCDC") verify that he had knee and back problems for which he received treatment while periodically detained at that facility.
Ward's allegations essentially follow those set out in his original complaint. He claims that his disc and knee problem were noted upon his entry into the Division of Correction in March of 2001 and that, starting in April of 2003, he began his quest to obtain treatment. He states that Hammond ordered a regimen of physical therapy for his left knee, without review of his medical records or appropriate physical examination, which only made his knee worse.
Ward next claims that Van Meter denied his request to see Dr. Tessema, the Medical Director at WCI. He further alleges that Van Meter misleadingly stated that WCI had no medical history reporting his knee or back problems despite seeing his swollen knee and his efforts to show nurse Van Meter his prior medical records. Ward complains that Van Meter refused to accept his medical records or to show them to Dr. Tessema.
Ward further alleges that Dr. Tessema concluded that plaintiff was receiving proper medical care, including medication for his back and knee, needed no restrictions in his day-to-day prison activities, and had full range of motion ("ROM") in his left knee even though: (1) Tessema had not personally examined Ward or reviewed his medical records from prior detention facilities; (2) the only medication Ward had been receiving was for treatment of his stomach ulcers and acid reflux (Zantac); (3) Ward's medical file disclosed numerous references to his knee and back problems, along with restrictions in his activities; and (4) a physical therapist at WCI reported that Ward had a 108 degree ROM in his right knee and a 100 degree ROM in his left knee.
Ward complains that he has been in almost constant and unbearable pain, discomfort, and suffering since April 9, 2003. He maintains that the injury and condition of his left knee have caused him to fall while descending steps, to have great difficulty climbing into and out of his upper bunk, and to fall from his bunk. Ward also alleges that defendants have given him pain medication for his knee only since his July 2005 surgery and one other time. He notes that he submitted many sick-call requests which have gone unanswered and/or have been denied, and when he was seen, it was much later than required by Division of Correction directives. Ward claims that defendants have not addressed his back pain issue and that he requires permanent assignment to a low tier, low bunk, handicap cell.
Ward claims that after August of 2005, Dr. Tessema retaliated against him for the filing of this action by revoking his lower tier, lower bunk handicap housing status. (Docket Entry No. 70). He raises a general count of retaliation against Tessema, Hammond, and Van Meter for his filing of grievances and this lawsuit.
Ward asserts that after numerous complaints about knee pain, he was referred to an off-site orthopedist, Dr. Robert Cendo. He states that on May 18, 2005, Dr. Cendo examined him, diagnosed him with a disruption of the medial meniscus and degeneration of the medial femoral condyle. Dr. Cendo operated on the knee on July 7, 2006, performing a resection of the posterior horn of the medial meniscus, essentially removing all of the posterior horn. Ward asserts that while the orthopedic surgeon prescribed Motrin 600 mg. three times per day for post-surgical pain, that medication was denied.
Currently pending before the court are Correctional Medical Services, Inc. ("CMS"), Hammond, Van Meter, and Tessema's motion to dismiss or, in the alternative, for summary judgment (for claims arising after July 1, 2005) (Docket Entry No. 81); Prison Health Services, Inc.'s ("PHS"), Hammond, Van Meter, and Tessema's motion to dismiss or, in the alternative, summary judgment (for claims arising before July 1, 2005) (Docket Entry No. 82); and the Department of Public Safety and Correctional Services's ("DPSCS") motion to dismiss. (Docket Entry No. 88.) The motions may be determined without oral hearing. See Local Rule 105.6 (D. Md. 2004.)
Ward filed an opposition (Docket Entry No. 93) and both the CMS and PHS defendants filed reply briefs thereto. (Docket Entry Nos. 94 95.)
Standard of Review Motion to Dismiss
"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; importantly, a Rule 12(b)(6) motion does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (internal quotation marks and alterations omitted). When ruling on such a motion, the court must "accept the well-pled allegations of the complaint as true," and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). Consequently, a motion to dismiss under Rule 12(b)(6) may be granted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Edwards, 178 F.3d at 244. To survive a motion to dismiss, however, a complaint must "in light of the nature of the action . . . sufficiently allege each element of the cause of action so as to inform the opposing party of the claim and its general basis." Chao v. Rivendell Woods, Inc., 415 F.3d 342, 348 (4th Cir. 2005). In addition, because the court is testing the legal sufficiency of the claims, the court is not bound by the plaintiff's legal conclusions. See, e.g., Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001) (noting that the "presence . . . of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6)" when the facts alleged do not support the legal conclusions).
Motion for Summary Judgment
Fed.R.Civ.P. 56(c) provides that:
[Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The Supreme Court has clarified that this does not mean any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247-48 (1986) (emphasis in original).
"The party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alternation in original) (quoting Fed.R.Civ.P. 56(e)). The court should "view the evidence in the light most favorable to . . . the nonmovant, and draw all inferences in her favor without weighing the evidence or assessing the witness' credibility." Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court must, however, also abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
Analysis Claims against State Agency and Private Health Care Contractors
DPSCS seeks dismissal of the complaint raised against it, arguing that as a state agency it is not a "person" under 42 U.S.C. § 1983 and is entitled to Eleventh Amendment immunity. (Docket Entry No. 88). See Will v. Michigan Dep't of State Police, 491 U.S. 58, 64-65 70-71 (1989); Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 101 (1984). Defendants CMS and PHS also seek dismissal, noting that the doctrine of respondeat superior liability does not apply to § 1983 claims. In his opposition, Ward agrees with this analysis and points out that he did not name DPSCS, CMS, or PHS in Counts I-III of his amended complaint, but only in Count IV for violation of Department of Correction Directives ("DCD's") regarding his medical housing assignment and sick-calls. Violations of prison directives do not in themselves give rise to a § 1983 claim, however, nor has Ward cited any authority establishing a private cause of action for an inmate who believes such directives have been violated. Accordingly, defendants DPSCS, CMS, and PHS will be dismissed from the case, and Count IV will be dismissed as to all defendants. See Weller v. Dep't of Social Services, 901 F.2d 387, 391-92 (4th Cir. 1990).
Whether failure to comply with such directives may be relevant evidence supporting a constitutional claim is a separate question.
Eighth Amendment Claims against Defendants Hammond, Van Meter, and Tessema
The dispute between Ward and defendants Hammond, Van Meter, and Tessema (collectively referred to as "medical defendants") remains the same, namely, whether the medical care and treatment received by Ward at WCI was constitutionally adequate under the Eighth Amendment.When presenting a denial of medical care claim in violation of the Eighth Amendment, plaintiff must prove two essential elements. First, he must satisfy the "objective" component by illustrating a serious medical condition. See Hudson v. McMillian, 503 U.S. 1, 9 (1992); Estelle v. Gamble, 429 U.S. 97, 105 (1976); Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998); Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995). If this first element is satisfied, he must then prove the subjective component of the Eighth Amendment standard by showing deliberate indifference on the part of prison officials or health care personnel. See Wilson v. Seiter, 501 U.S. 294, 303 (1991) (holding that claims alleging inadequate medical care are subject to the "deliberate indifference" standard outlined in Estelle, 429 U.S. at 105-06). "[D]eliberate indifference entails something more than mere negligence [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Farmer v. Brennan, 511 U.S. 825, 835 (1994). Medical personnel "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [they] must also draw the inference." Id. at 837. Healthcare staff are not, however, liable if they "knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent." Id. at 844; see also Johnson v. Quinones, 145 F.3d at 167.
Upon review of the amended complaint and responsive filings and exhibits, the undersigned again finds that there exists a genuine dispute of material fact regarding the constitutionality of the level of care received by Ward for his orthopedic condition prior to July 1, 2005. There is no dispute that Ward has a medical problem involving his knees which relates to injuries suffered in a motor vehicle accident in the mid 1980's. The record shows that when Ward was detained at MCDC in the 1990's his history of knee problems was well-documented, leading to recommendations for lower bunk and/or lower tier housing continuing through March 2001.
The MCDC records also reference Ward's complaints of back pain, but the primary focus of the records concerns Ward's knee problems. (Docket Entry No. 93, Ex. 3).
Ward was housed at WCI for almost one year before raising a complaint about his knee. Beginning in April 2003, however, he filed numerous sick-call and administrative remedy requests complaining of pain, limited ROM, and lack of stability of his knee. Ward was seen by nurses and a nurse practitioner, who referred him to physical therapy and then later wrote out orders for ice and a knee brace. He was never referred to or seen by a physician's assistant or a physician, specialist or otherwise, for his repeated complaints of pain, limited ROM, and instability until April of 2005, when he was seen by Dr. Tessema. Further, at no point until May of 2005 did plaintiff receive a specialist examination to obtain objective data regarding his orthopedic problem, which proved sufficiently serious to require surgical correction. The court further observes that there is a genuine factual dispute as to whether plaintiff received any medication for his complaints of pain from April 2003 to June 30, 2005.
The court concludes, however, that defendants Tessema, Hammond, and Van Meter are entitled to judgment as to all counts of the amended complaint regarding plaintiff's back condition. Plaintiff's sick-call requests primarily concerned his left knee, although he did complain of back pain on January 16, 2004, due to a fall on the stairs. (Docket Entry No. 82.) When seen March 8, 2004, he confirmed the lack of back pain since he received a low bunk. He mentioned back problems one year later in relation to his seeking renewal of his low bunk status and his new quest for low level housing in March of 2005. He was assigned low level tier for six months on April 6, 2005. ( Id.) Further, plaintiff never complained of back pain during physical therapy visits in April of 2005, or when seen by the orthopedic specialist in May and July of 2005. On July 22, 2005, plaintiff was seen in response to a sick-call request in which he complained of back pain. (Docket Entry No. 81, Exs. A B). He was seen by Dr. Tessema, who observed that plaintiff had made no prior complaints of lower back pain to him or to the orthopedic surgeon during recent evaluations and surgery. (Id.) He noted no vertebral or spinal deformity and reported a negative straight-leg raising test. (Id.) In his December 3, 2005, sick-call request, plaintiff complained of back pain. Id. On December 7, 2005, plaintiff was seen by Nurse Practitioner Hammond, who examined plaintiff and concluded that his lower back pain might be attributable to degenerative joint disease. ( Id.) She ordered x-rays of plaintiff's spine and ordered an analgesic balm for his back. Id. Plaintiff underwent an x-ray of the lumbar spine on December 14, 2005. (Id.) The radiology report noted "no evidence of spurs (degenerative joint disease) or other bony abnormality." (Id.)
According to the medical defendants, the arthroscopic procedure was performed on the left knee on July 7, 2005. (Docket Entry No. 81, Exs. A B.) The left knee was found to have a normal lateral joint space, medial femoral condyle, and patellofemoral joint, and a fully intact and normal ACL. ( Id.; Docket Entry No. 82, Exs. 1 1G.) The posterior horn of the medial meniscus was, however, removed by Dr. Cendo, as he found complex tearing primarily in the inferior surface. (Id.)
According to the medical defendants, Ward continued to be followed in the WCI infirmary after surgery and was described as alert and oriented. (Docket Entry No. 81, Exs. A B.) Prior to surgery on July 6, 2005, Dr. Tessema ordered Motrin 400 mg. three times a day for ten days for complaints of knee pain and on the day of surgery, July 7, 2005, Dr. Tessema prescribed 600 mg. of Motrin three times a day as needed ("PRN") for fourteen days. (Id.) Ward was given discharge instructions on July 8, 2005, and was advised how to care for his wound. ( Id.) He was also given Motrin 600 mg. for his complaint of pain in the knee and advised that he could move about as tolerated and should continue on his current medications and appear for a follow-up visit in one week. (Id.)
On July 13, 2005, Dr. Tessema conducted a follow-up visit with Ward, who reported that he was able to move about satisfactorily. (Id.) Dr. Tessema examined the knee and found the medial opening had healed and that the lateral opening was healing without effusion or cellulitis. (Id.) No drainage or tenderness was observed. Dr. Tessema prescribed Bacitracin to apply to the wound for the following week, at which time Ward would be seen for a follow-up appointment. ( Id..) Ward was seen by Dr. Tessema on July 20, 2005, and reported no pain or complaints. He was advised to return if he needed any additional care relating to the wound. ( Id.)
Ward submitted a new sick-call request in August 29, 2005, in which he again complained of pain from his knee "popping in and out." (Id.) On September 1, 2005, he was examined by Nurse Debbie Stewart, who found good ROM and no pain upon ROM examination. (Id.) Nurse Stewart advised Ward to return to the clinic as needed and requested an order for Motrin. (Id.) Tylenol 325 mg. was given to Ward until the Motrin was ordered. (Id.) On September 19, 2005, Ward reported continued pain in his knee and noted that he had not received the Motrin ordered on September 1, 2005. On September 25, 2005, he was examined by Nurse Alan Wilt, who found good ROM, but noted evidence of some mild edema. (Id.) Nurse Wilt referred Ward to Dr. Tessema for an orthopedic examination. (Id.)
Dr. Tessema saw Ward on September 26, 2005, and addressed Ward's sick call request to renew his bottom tier status, which was about to expire after a six-month period. ( Id.) Dr. Tessema noted that: (1) Ward had been given the lower tier status for his left meniscal tear, which had since been repaired by the arthroscopic surgery; (2) the surgery had revealed a normal patellofemoral joint and joint space; (3) upon examination the left knee was stable and there was no vertebral tenderness or deformities; and (4) Ward's straight leg raising test was still negative. (Id.) Dr. Tessema advised Ward that his knee appeared normal upon examination and that given the surgery and surgical findings, there was no medical reason to write a new order for Ward to have lower tier status. ( Id.) He nonetheless prescribed Motrin 400 mg. daily for 120 days to ameliorate Ward's "on and off discomfort."
On November 27, 2005, Ward submitted another sick-call request, and Nurse Practitioner Hammond reiterated Dr. Tessema's findings and recommendations from September. (Id.) In a second sick-call request made on December 3, 2005 Ward again noted that his knee was swollen and in pain. On December 7, 2005, Ward was seen by Nurse Practitioner Hammond, who examined plaintiff and concluded that he had resolving "mild ecchymosis" (bruising) on his left knee, secondary to trauma. ( Id.)
The medical defendants state that Ward made no further complaints about his knee until February 16, 2006, when he submitted a sick-call form indicating that his knee popped or twisted and he was having pain. He was examined by Nurse Bonnie Hinkle who noted mild ecchymosis of Ward's knee and that he was favoring his left knee. She referred him to Nurse Practitioner Hammond, who gave him enteric coated aspirin for his discomfort and instructed him to return to the clinic as necessary. Ward submitted a sick-call request on March 14, 2006, requesting Motrin and to see Dr. Tessema. He saw Dr. Tessema on March 22, 2006. Dr. Tessema found Ward to be walking and sitting with no problem and that he stepped up to and on the exam table with no difficulty. Ward requested Motrin, but had no other complaints. Dr. Tessema noted "left knee arthralgia" (pain in the joint) and advised Ward to continue taking the Motrin. A prescription for 400 mg. Motrin twice a day for another 120 days was written with cautionary advice regarding its side effects, risks, and benefits. The record further shows that on May 3, 2006, plaintiff was given twenty tablets of Motrin 600 mg. by the dental department for tooth pain. He was provided thirty tablets of Motrin 400 mg. for his complaint of pain on May 12, 2006. (Docket Entry No. 94, Exs. A B.) On June 2, 2006, Ward filed a sick-call request asking for muscle joint pain cream in light of a swollen knee. On June 7, 2006, he was examined. A mild edema to the knee was noted, but no tenderness or crepitis was felt and a good ROM was found. (Id.) He was given a tube of A-balm for his knee pain. On July 6, 2006, Ward was provided another 15 tablets of Motrin 400 mg. for his complaint of knee pain. (Id.)
In light of the record presented to the court, the undersigned finds that plaintiff's medical care subsequent to July 1, 2005, meets acceptable constitutional standards. The evidence shows that plaintiff was evaluated and treated by nurses, a nurse practitioner, and Dr. Tessema for his post-surgical complaints of knee pain upon receipt of sick-call requests. For the time period prior to July 1, 2005, however (or at least prior to May 2005), the record reflects no explanation other than deliberate indifference for the significant delay in providing treatment for Ward's serious medical need.
Indeed Ward withdrew his claim against Hammond and Van Meter for the treatment they provided after July 1, 2005. (Pl's Opp'n at 20-21.)
Plaintiff also raises First Amendment claims against the medical defendants. He claims that Dr. Tessema retaliated against him for filing this lawsuit by refusing to renew his lower tier housing assignment and stopping his pain medication in 2005. The record demonstrates, however, that Dr. Tessema's decision not to renew the prescription for a lower tier assignment months after plaintiff's arthroscopic surgery was based upon several objective factors and that plaintiff's pain medication was periodically renewed. The claim of retaliation is not supported by the evidence. See American Civ. Liberties Union v. Wicomico County, 999 F. 2d 780, 784-86 (4th Cir. 1993); see also Pierce v. King, 918 F. Supp. 932, 943 (E.D.N.C. 1996).
Conclusion
For the aforementioned reasons, the case shall proceed as to Defendants Hammond, Tessema, and Van Meter with regard to plaintiff's care received prior to July 1, 2005. A separate Order follows.ORDER
In accordance with the foregoing Memorandum, IT IS this 30th day of March, 2007, by the United States District Court for the District of Maryland, hereby ORDERED that:
1. The Clerk SHALL TAKE ALL NECESSARY STEPS to AMEND the docket to reflect the correct name of defendant Hammond as Nurse Practitioner Anna Hammond;
2. Defendant DPSCS's motion to dismiss (Docket Entry No. 88) IS GRANTED;
3. Defendant CMS and PHS's motions to dismiss (contained in Docket Entry Nos. 81 and 82) ARE GRANTED;
4. The complaint against defendants DPSCS, CMS, and PHS IS DISMISSED;
5. Count IV IS DISMISSED;
6. Defendants Hammond, Tessema, and Van Meter's motion to dismiss, or in the alternative, for summary judgment (contained in Docket Entry No. 82), construed as a motion for summary judgment, IS DENIED;
7. Defendants Hammond, Tessema, and Van Meter's motion to dismiss or, in the alternative, motion for summary judgment (contained in Docket Entry No. 81), construed as a motion for summary judgment, IS GRANTED;
8. Plaintiff's claims against defendants Hammond, Tessema, and Van Meter concerning his course of his medical treatment for his left knee prior to July 1, 2005, SHALL PROCEED. All other claims are dismissed; and
9. Counsel will be contacted to discuss a schedule for further proceedings in this case.