Justice v. Green et al

Filing 56

MEMORANDUM. Signed by Judge J. Frederick Motz on 6/12/12. (c/m af 6/12/12)(amf, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

WINFORD TRACY JUSTICE

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Plaintiff

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v

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WARDEN KATHLEEN GREEN
DOCTOR GETACHEW
DOCTOR PAUL MATERA
JAN WILLIAMS, R.N.
MELISSA HIXON
CORRECTIONAL MEDICAL SERVICES

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Civil Action Case No. JFM-11-266

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Defendants
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MEMORANDUM
Now pending is a Motion to Dismiss or, in the Alternative, for Summary Judgment filed
by defendants Asresahegn Getachew, M.D. and Paul Matera, M.D. (“Defendants”) (ECF No.
52). Plaintiff Winford T. Justice opposes the motion. (ECF Nos. 54 and 55). The court finds a
hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2011). After careful
consideration of the pleadings, exhibits, and applicable law, the court will grant defendants’
motion for summary judgment.
I.

BACKGROUND
Justice, an inmate at Eastern Correctional Institution, claims defendants failed to provide

him with adequate treatment for back pain and a urinary condition. He further alleges
defendants delayed his neurology consultation. As redress, he wants $30,000 and declaratory
and injunctive relief.
By order of February 2, 2012, the court denied defendants’ Motion to Dismiss, or in the

Alternative, Motion for Summary Judgment, subject to renewal. (ECF No. 47).1 Defendants’
by their counsel, subsequently filed the instant dispositive pleading.
II.

FACTS

Plaintiff’s medical history is outlined in detail in the court’s memorandum of February 2,
2012 (ECF No. 46), which is incorporated herein by reference.
A. Back Pain
Justice has a history of chronic lumber disc displacement. He reports associated
symptoms including bladder and bowel incontinence. Two separate requests for a neurology
consultation request to rule out cauda equina syndrome, a possible cause of incontinence
resulting from compression of the nerves in the lower portion of the spinal canal,2 have been
submitted for Justice. Both requests were denied by Wexford Health Sources, Inc., the
utilization review contractor for the State of Maryland.

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On November 28, 2011, Justice informed Dr. Matera that he had not been incontinent of
urine for two weeks, but had suffered episodes of bowel incontinence. Examination of Justice’s
adult diaper showed no stain or stool. His physical examination revealed: 1) his abdomen was
soft and non-tender with normal bowl sounds, normal cremasteric reflexes;4 2) normal rectal

1

In the court’s February 2, 2012, order summary judgment was granted in favor of defendants Correctional Medical
Services, Jennifer Williams, R.N. and Melissa Hixon, R.N., and Warden Kathleen Green was dismissed as a
defendant. ECF No. 47.

2

See Exhibit A, n. 3.

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As previously noted, Wexford Health Sources is the utilization review contractor for the State of Maryland. ECF
No. 47, Wexford reviews and approves all requests for on-site and off-site consultants for certain medical devices
and other tests. Corizon (formerly known as Correctional Medical Services) is not affiliated with Wexford, nor does
it have any control over Wexford’s approval process. ECF No. 46, n. 8.

4

Cremasteric reflex is tested by stimulation of the skin on the front and inner thigh which causes retraction of the
testis on the same side. Exhibit, A, n. 4.

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tone;5 3) normal wink;6 and 4) stool negative for occult blood. Exhibit A, Affidavit of Paul
Matera, M.D., p. 3-4. Dr. Matera attests “Neither I nor any nurses to the best of my knowledge
after review of Justice’s medical records ever saw a diaper of Justice’s with stool in it. “ Exhibit
A, Affidavit of Paul Matera, M.D. p. 3, ¶ 5.
Justice has plates and screws in his back from previous surgery. Dr. Matera describes
Justice’s range of motion (ROM) as normal. On December 27, 2011, Dr. Matera noted Justice’s
last CT scan showed no changes from his previous scan. Justice was advised to comply with his
exercise program to help his back pain and ordered to avoid work, gym and weight lifting.
Exhibit A, p. 4, ¶ 6.
On January 18, 2012, Dr. Matera admitted Justice to the prison infirmary to evaluate his
complaints of worsening low back pain. Justice was in the Infirmary from January 18-20, 2012,
where he was observed walking about his cell, jumping up to talk to corrections officers,
laughing and joking with other inmates, and laying on his abdomen in his bed. He was observed
to sleep eight or nine consecutive hours at night. Justice did not appear to be in any distress
while in the infirmary. Exhibit A, p. 4, ¶ 7; Exhibit B, 68-90. On February 2, 2012, Lino Quilo,
M.D. examined Justice and cleared him to work, but restricted his recreation activities. Exhibit
B, 92-94.
Justice states that he was placed in an isolation cell in the infirmary that was so cold he
was placed in severe pain. ECF No. 43. He states that the isolation cell was in full view of the
nursing station and that he felt humiliated by his lack of privacy. See id. Justice indicates he

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Rectal tone is the tightness of the rectum which keeps stool from leaking. Exhibit A, n. 5.

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When each side of the buttocks is scratched with a gloved finger, a superficial anal reflex (the anal “wink) is
produced. Exhibit A, n. 6.

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walked about the cell to stay warm and never received the extra blanket he requested. ECF No.
54, p. 2.
B. Urinary Incontinence
Dr. Matera examined Justice and noted the prostate was smooth and nontender. Justice’s
renal functions are normal. Justice receives adult diapers for urinary incontinence. Exhibit B. pp.
1-3, 6-7, 11, 43-45, 56-57. A post-voiding urine residual test showed that Justice is not retaining
urine. Justice refused to start a trial of medication for prostate problems. Exhibit B, pp. 56-57,
107.
When Justice was admitted to the Infirmary on January 18, 2012, all his urine was to be
collected for a 24-hour period and the staff was directed to notify a physician of the amount
collected because too much or too little urine can be a sign of disease and would warrant further
testing. Justice was not given any diapers so that all of his urine could be measured. On January
19, 2012, a nurse observed Justice urinating into the toilet. Justice told her he forgot to use the
collection container. Justice asked Dr. Jason Clem that same day for more diapers because he
had soiled his underwear with urine. Dr. Clem emphasized to Justice the importance of
obtaining an accurate measure of his urine output. Justice’s urine volume was within normal
limits and he was able to hold his urine and urinate in the collection container except for the one
reported incident. Exhibit A, p. 6. ¶ 13. At his February 2, 2012 examination with Dr. Quilo,
Justice was provided with diapers. Exhibit B, pp. 92-94.
In his reply, Justice claims Dr. Clem “witnessed that Plaintiff had soiled his underwear and
in fact order a clean pair of bed sheets for him.” ECF No. 54 p 16. He faults medical staff for
administering the wrong dose of Ultram to him, and disputes the accuracy of the urine collection.

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See id.

C. Pain
Justice is prescribed Ultram 100 mg in the morning and the evening for his complaints of
chronic low back pain. He has also been given Motrin (ibuprofen) for back pain. Justice wrote a
letter to Dr. Jason Clem dated January 4, 2012, complaining that his pain level was more than 10
on a scale of one to ten, with ten being the highest level of pain. Justice wrote in his letter that
Dr. Matera had agreed to increase the morning Ultram to 150mg. Exhibit B, p. 66. Dr. Matera
attests that he did not tell Justice that he would make such an increase. Exhibit A, p. 7, ¶ 15. He
told Justice that based on his infirmary evaluation, the regimen of 100 mg once the morning and
once at night was adequate to treat his complaints. Exhibit B, p. 91.
Dr. Matera states:
When I admitted Justice to the Infirmary on January 18, 2012, I prescribed an
increase in his morning Ultram dose to 150 mg. for three days only, to see if it
helped decrease his pain level. On that date, Justice rated his pain as ten out of ten
and received a total of 250mg.7 at 9:40 am. At 11:00 a.m., however, he still rated
his pain as eight out of ten. On January 19, 2012, Justice treated his pain as eight
out of ten. On January 19, 2012, Justice rated his back pain as ten out of ten. On
January 20, 2012 at 10: 38 am, Justice rated his pain as five out of ten. Tylenol
was also prescribed for Justice’s complaints of pain.
Exhibit A, p. 7, ¶ 16.
D. Skin and Knee Ailments
In 2011, Justice was treated for cellulitus, a bacterial infection, in his right knee. The
infection was resolved after treatment. He has also been treated for erythematous, a red, itchy
scaly rash on his knees. Exhibit B, pp. 8-10, 12-13. Additionally, he has been treated for a
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Dr. Matera posits the nurse might have misread the dosage, but states Justice suffered no adverse effects from the
single extra 100 mg dose, nor did he experience significant pain relief. Exhibit A, n. 9.

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bruise on his right knee, eczema on his knees and a possible infection for which he was
prescribed oral antibiotics. He has also been given steroid cream for knee rashes. In response to
his complaints of knee pain, a rheumatoid panel was ordered to rule out rheumatoid arthritis of
the knee. Exhibit B, pp. 19-28. The results of Justice’s blood tests for rheumatology were
within normal limits, indicating that he does not have rheumatoid arthritis. Exhibit A,
p. 10, ¶ 21, Exhibit B, p. 45. Justice also receives emollients for his psoriasis and antibiotic
cream as needed. Exhibit B, pp. 63-64.
III.

MOTION FOR SUMMARY JUDGMENT
Where the parties present matters outside of the pleadings and the court considers those

matters, the motion is treated as one for summary judgment. See Fed. R. Civ. P. 12(b); Gadsby
by Gadsby v. Grasmick, 109 F.3d 940, 949 (4th Cir. 1997); Paukstis v. Kenwood Golf & Country
Club, Inc., 241 F. Supp.2d 551, 556 (D. Md. 2003).A court may enter summary judgment only if
there is no genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is
inappropriate if any material factual issue “may reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
“A 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, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). “A mere scintilla of
proof ... will not suffice to prevent summary judgment.” Peters v. Jenney, 327 F.3d 307, 314

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(4th Cir. 2003). “If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50. (citations omitted). The court
must construe the facts that are presented in the light most favorable to the party opposing the
motion. See Scott v. Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
IV.

DISCUSSION
The Eighth Amendment prohibits “unnecessary and wanton infliction of pain” by virtue

of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153,
173,(1976). To state an Eighth Amendment claim for denial of medical care, defendants’ actions
(or their failure to act) must demonstrate deliberate indifference to a serious medical need. See
Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference to a serious medical need
requires proof that, objectively, plaintiff was suffering from a serious medical need and that,
subjectively, the prison staff was aware of the need for medical attention but failed to either
provide it or ensure the needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837
(1994).
As noted, the medical condition must be serious. See Hudson v. McMillian, 503 U.S. 1, 9
(1992) (no expectation that prisoners will be provided with unqualified access to health care).
Proof of an objectively serious medical condition, however, does not end the inquiry. The second
component of proof requires “subjective recklessness” in the face of the serious medical
condition. Farmer, 511 U.S. at 839–40. “True subjective recklessness requires knowledge both
of the general risk, and also that the conduct is inappropriate in light of that risk.” Rich v. Bruce,
129 F.3d 336, 340 n. 2 (4th Cir.1997). “Actual knowledge or awareness on the part of the
alleged inflicter ... becomes essential to proof of deliberate indifference ‘because prison officials

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who lacked knowledge of a risk cannot be said to have inflicted punishment.’ ” Brice v. Virginia
Beach Correctional Center, 58 F.3d 101, 105 (4th Cir.1995) (quoting Farmer, 511 U.S. at 844).
If the requisite subjective knowledge is established, an official may avoid liability “if [he]
responded reasonably to the risk, even if the harm was not ultimately averted.” Farmer, 511 U.S.
at 844.
The medical treatment provided must be so grossly incompetent, inadequate, or excessive
as to shock the conscience or to be intolerable to fundamental fairness. See Miltier v. Beorn,
896 F.2d 848, 851 (4th Cir. 1990). Mere negligence or malpractice does not rise to a
constitutional level. See Miltier v. Born, 896 F.2d 848 (1990). An inmate’s disagreement with
medical providers about the proper course of treatment does not support an Eighth Amendment
cause of action. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985); Wester v. Jones, 554
F.2d 1285 (4th Cir. 1977); Russell v. Sheffer, 528 F.2d 318 (4th Cir. 1975).
Viewing the facts in the light most favorable to Justice, the court finds that he has not
shown that defendant acted with deliberate indifference to his serious medical needs. Justice’s
medical records show that he was examined, tested, provided medication, and other therapies to
address his back pain, claimed incontinence, and other ailments. Justice was admitted to the
hospital infirmary for additional testing and evaluation for his complaints of back pain and
urinary and fecal incontinence. Neurological consultations were requested for Justice on two
separate occasions.8 Further, although defendants assert Justice’s complaints of incontinence
cannot been verified, they have regarded his concerns seriously. Justice has been tested,
monitored, and offered treatments for his various complaints. He is provided medication for his
back pain and receives adult diapers for his complaints of incontinence. Although Justice may
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Justice provides no factual basis for his claim that defendants delayed his neurological consultation.

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not agree with the course of his medical treatment, he cannot show defendants acted with
deliberate indifference to his serious medical needs. 9 Justice has not shown defendants acted
with conscience disregard of a substantial risk of serious harm or that they have provided
treatment so grossly incompetent to shock the conscience. No genuine issue of material fact is
presented and defendants are entitled to summary judgment in their favor.
V.

CONCLUSION

For the foregoing reasons, defendants’ motion for summary judgment shall be granted. A
separate order follows.

June 12, 2012
Date

___/s/_____________________
J. Frederick Motz
United States District Judge

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Consequently, Justice’s request for appointment of counsel and to add Wexford Health Sources as an additional
defendant, contained in his memorandum in support, will be denied. Justice may file a separate civil action against
Wexford. The court expresses no opinion as to the merits of such a proceeding.

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