Germain v. Wexford Health Sources Inc. et al

Filing 80

MEMORANDUM. Signed by Judge J. Frederick Motz on 3/11/14. (c/m apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JEAN GERMAIN

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Plaintiff

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v

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Civil Action No. JFM-13-382

WEXFORD HEALTH SOURCES, INC., et al. *
Defendants

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***
MEMORANDUM

On August 2, 2013, this court ordered defendants to supplement their dispositive motion
addressing plaintiff’s claim medical staff did not treat him for the effects of chemical agent
exposure and to provide the court with information concerning a treatment plan for plaintiff’s
complaints that he was experiencing blood in his stool and sustained an 18 pound weight loss.
ECF No. 43. In addition, this court directed named correctional officers to be served and
respond to the allegation plaintiff was not treated for chemical agent exposure. Id.
Now pending is the supplemental motion to dismiss or for summary judgment filed on
behalf of defendants Wexford, Buck, Durst, and Cortez (“medical defendants”) (ECF No. 50)
and a motion to dismiss or for summary judgment filed on behalf of defendants Shearin and
Roderick (ECF No. 51). Upon review of the record, the court finds a hearing unnecessary to the
resolution of the matters pending before it.
Background
The issues currently pending before the court concern a cell extraction taking place at
North Branch Correctional Institution (NBCI) on January 17, 2013, during which plaintiff was
exposed to pepper spray. He claims that following the incident he was not given a shower by
either correctional or medical staff members, and was instead placed in an isolation cell without

running water, sheets or a blanket. ECF No. 1 at p. 4. He claims the water was not turned on in
the cell until approximately five hours later when the shift changed. Id. Additionally, plaintiff
alleges on February 16, 2013, he began to see blood in his stool and suspected the ibuprofen he
was prescribed for ankle pain was causing it. ECF No. 7 at p. 3. He further alleged he has
suffered an 18 pound weight loss over a short period of time. ECF No. 38. Other facts regarding
the events leading up to plaintiff’s injuries are set out fully in this court’s August 2, 2013
memorandum and are incorporated herein by reference. ECF No. 43.
Standard of Review
Summary Judgment is governed by Fed. R. Civ. P. 56(a) which provides that:
The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.
The Supreme Court has clarified that this does not mean that 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).
AThe 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) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The
court should Aview 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
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must, however, also abide by the Aaffirmative 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
Removal of Chemical Agent
Previously this court observed that: “[d]efendants have not explained why medical staff
did not treat plaintiff for the effects of chemical agent exposure, nor have they provided the court
with information concerning the procedures in place for that treatment.” ECF No. 43 at p. 12.
The allegation raised by plaintiff was that he was placed in a cell without running water for five
hours after his exposure to chemical agents, depriving him of the ability to remove the agent
himself after being denied removal by defendants. Id. This court required medical defendants to
provide a response to this allegation and required service of the complaint on correctional
defendants for purposes of responding to the allegation as well. Id.
Medical defendants state that the protocol for evaluating an inmate exposed to pepper
spray requires nursing staff to examine the inmate to identify any acute medical injuries
requiring further evaluation or immediate intervention. ECF No. 50 at Ex. 1. They further
explain that the agent used in pepper spray is derived from hot cayenne pepper which operates as
an inflammatory irritant upon contact with skin, eyes, nasal passages, and mouth. Id. In general
the pepper spray does not cause lasting physical damage and symptoms dissipate in 15 to 45
minutes. Id. There are, however, some individuals in whom pepper spray can trigger respiratory
distress or failure necessitating the respiratory assessment done by nursing staff. Id.

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Medical defendants further aver that decontamination involves removal of clothes and
rinsing the exposed areas of the body with water. Id. It is the practice to provide inmates with
the opportunity to shower after they have been medically cleared, but the shower is not
performed by medical staff.

Id.

Correctional staff are charged with the responsibility of

providing a decontamination shower to inmates exposed to pepper spray.

Id.

Following

plaintiff’s clearance by defendant Buck in consultation with Dr. Ottey, he was released to
correctional staff, who offered plaintiff a decontamination shower. Id. at Ex. 2.
Correctional defendants state that when plaintiff was offered a decontamination shower,
he refused the offer. ECF No. 51. Three correctional officers present during the incident have
provided statements under oath that plaintiff was offered a decontamination shower by Lt.
McAlpine and he declined the offer. Id. at Ex. 2, p. 3; Ex. 3, p. 3; and Ex. 4, p. 3. Following this
exchange, plaintiff was escorted to a cell.1
In his opposition response, plaintiff asserts that medical staff regularly treat inmates for
the effects of chemical agent exposure. ECF No. 78 at Ex. A, pp. 6 -7.

He claims documents

filed in another case pending in this court indicate that defendant Buck treated inmates for
pepper spray exposure. Id., citing Burrell v. Stouffer, et al., Civil Action PJM-13-1020 (D. Md.).
Plaintiff states he had the exhibits from that case in his possession, but when he provided them to
correctional staff for copies they were confiscated. Id. at Ex. A. The motion for summary
judgment filed in Burrell includes an account of treatment for pepper spray exposure following
use of force prompted by a fight between three inmates: Bernard Burrell, Ricardo Dornes, and
Mike Sommerville. Burrell was not exposed to pepper spray as he fled the scene of the fight
when officers arrived. The relevant portion of the report states:

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Correctional defendants do not address the allegation that plaintiff was placed in a cell without running water for a
period of five hours.

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Officer Syverstad placed handcuffs on Inmate Sommerville and escorted him
to the Housing Unit #3-A/B Holding Cell to await medical treatment. When
medical personnel arrived, Officer Syverstad escorted Inmate Sommerville to
the Housing #3 Medical Room. Inmate Sommerville was medical assess by
Carla Buck RN. Inmate Sommerville received treatment for exposure to
pepper spray. Inmate Sommerville was also treated for four lacerations to the
head and neck area. Inmate Sommerville was escorted to the Housing Unit #3
A/B Holding Cell by Officer Syverstad. Officers Edward Kelly and Syverstad
conducted a strip search of Inmate Sommerville. No contraband was found.
Officers Kelly and Syverstad escorted Inmate Sommerville to Housing Unit #3
Shower B-4. After Inmate Sommerville received a decontamination shower . .
. [he] was escorted to Housing Unit #1.
Officer Smith escorted Inmate Dornes to the Housing Unit #3 Medical Room
where he was treated for exposure to pepper spray by Carla Buck RN. Officer
Smith escorted Inmate Dornes to the Housing Unit #3 C/D Holding Cell where
he was strip searched by Officers Kelly and Smith. . . . Inmate Dornes was
escorted to Housing Unit #3 Shower D-1 by Officers Kelly and Smith. After
Inmate Dornes received a decontamination shower he was escorted to Housing
Unit #1 by Officers Kelly and Smith.
Burrell, Civ. Action PJM-13-1020 at ECF No. 16, Ex. 2, p. 2 (Investigator’s Summary). There
are no further relevant exhibits, pictures, affidavits, or statements filed in that case. Plaintiff,
however, states that two inmates, Ronnie Winbush and Eddie Murphy, will testify that medical
staff treated them for chemical agent exposure by flushing their eyes and face with water. ECF
No. 78 at Ex. A, pp. 7-8.
The report filed in Burrell is consistent with the medical defendant’s assertion that their
role in cases where inmates have been exposed to chemical agents is to assess them for
immediate respiratory distress and the decontamination shower is the responsibility of
correctional staff. Whether medical staff have on other occasions provided more than a simple
assessment of an inmate’s respiratory condition following exposure to pepper spray is not
material.

If the established procedure is to entrust the responsibility for full body

decontamination to correctional staff, medical defendants in this case behaved reasonably and
are entitled to summary judgment on this claim.
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With respect to correctional defendants, plaintiff maintains he never refused a
decontamination shower and that he was put into a cell with no running water. He further
disputes the length of time exposure to pepper spray inflicts pain and discomfort. Additionally,
plaintiff asserts that he has not been provided adequate access to evidence in the control of
correctional defendants to adequately address their allegations.
In cases alleging excessive use of force, this court must look at the need for application of
force; the relationship between that need and the amount of force applied; the extent of the injury
inflicted; the extent of the threat to the safety of staff and inmates as reasonably perceived by
prison officials; and any efforts made to temper the severity of the response. See Whitley v.
Albers, 475 U. S. 312, 321 (1986). The absence of significant injury alone is not dispositive of a
claim of excessive force. See Wilkens v. Gaddy, 599 U.S. 34 (2010).

In the instant case the

initial decision for the application of force was found to pass constitutional muster. If, however,
there is evidence that the effects of the use of force were allowed to linger long after the need for
it expired, there is a colorable Eighth Amendment claim for inflicting harm to plaintiff without
adequate justification. See Hudson v. McMillian, 503 U. S. 1, 6-7 (1992) (force used is excessive
if inflicted “maliciously and sadistically to cause harm.”). In light of the fact that correctional
defendants do not address plaintiff’s allegation that he was put into a cell with no running water
and his requests to turn the water on were repeatedly denied for a period of five hours as well as
plaintiff’s claim under oath he never refused a decontamination shower, there exist genuine
disputes of material facts. Thus, summary judgment in favor of correctional defendants on this
claim is inappropriate on the record now before the court.
Plaintiff filed a motion to amend the complaint (ECF No. 47) which was granted (ECF
No. 65). On December 18, 2013, the litigation coordinator at NBCI accepted service on behalf

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of Lt. McAlpine, Lt. Cross, Sgt. G. Forney, and Corporal J. Wilt. ECF No. 70. No response to
the complaint has been filed on their behalf. The defendants on behalf of whom no response has
been filed are the correctional staff who are alleged to have denied plaintiff a decontamination
shower. The only correctional defendants who have responded to the complaint, Shearin and
Roderick, are supervisory defendants who are not alleged to have participated actively in
denying plaintiff relief from the effects of a chemical agent. Shearin and Roderick assert they
are entitled to dismissal of the claim against them because adequate evidence to support
supervisory liability has not been produced. ECF No. 51. Their failure to address the claim that
plaintiff was placed in a cell without running water, however, means there is no basis for this
court to find that Shearin and Roderick were unaware of plaintiff’s predicament. Thus, all
correctional defendants (McAlpine, Cross, Forney, Wilt, Shearin, and Roderick) will be required
to respond to that allegation.
Plaintiff’s motion for continuance seeks to delay this court’s ruling on defendants’
motion pending his opportunity to review the video of the incident and to review his relevant
base file documents. ECF No. 77. Previously this court granted correctional defendants’ motion
for a protective order, excusing them from engaging in discovery. ECF No. 76. In light of the
disposition of the claims against correctional defendants, the order shall be quashed and
defendants will be required to provide plaintiff with access to the evidence stated. A scheduling
order, which shall be included in the order following this memorandum, will govern the
deadlines applicable to discovery.
Medical Treatment
With respect to plaintiff’s claim that he was not treated for complaints of hematochezia
(blood in his stool) and significant weight loss, medical defendants state that his first report of

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hematochezia was in November 2010. By July 25, 2011, plaintiff also reported weight loss and
he was referred to a general surgeon, Dr. Oyogoa. ECF No. 50 at Ex. 1, p. 3. Ogoyoa
recommended a colonoscopy, which plaintiff underwent on September 15, 2011.
The results of the colonoscopy revealed presence of internal hemorrhoids and a small
polyp which was excised for biopsy.2

Based on the results of the colonoscopy, plaintiff’s

hematochezia was attributed to the internal hemorrhoids. Due to plaintiff’s internal anatomy, the
gastroenterologist could not view plaintiff’s large colon or upper intestinal tract during the
colonoscopy. A barium enema study was recommended to evaluate plaintiff’s large intestine,
but on December 1, 2011, when plaintiff was scheduled for the test, he refused the medical trip.
The trip was not rescheduled because plaintiff did not present symptoms that suggested upper
gastrointestinal bleeding and the hematochezia remained stable, with intermittent flare-ups due to
plaintiff’s hemorrhoid condition. Plaintiff was educated by medical staff regarding maintaining
a proper diet to avoid constipation and formation of hard stools which could irritate hemorrhoids
and increase bleeding. ECF No. 50 at Ex. 1, p. 4.
On May 1, 2013, plaintiff’s stool samples again tested positive for blood and blood work
was ordered. In addition, plaintiff’s ibuprofen order was discontinued and acetaminophen was
substituted because ibuprofen can cause gastrointestinal irritation of ulcers and exacerbate
bleeding. Id. Plaintiff did not submit a complaint concerning this condition until June 18, 2013.3
On that date, plaintiff complained he had been seeing blood in his stool since June 2, 2013, and
that he believed he had been poisoned by correctional officers in April of that year. Plaintiff was
scheduled to be seen by nursing staff on June 20, 2013, but refused to be handcuffed behind his

2

The polyp was benign. ECF No. 50, Ex. 1, p. 5.

3

In the interim, plaintiff refused transport to the medical unit for purposes of completing blood work-up and for
follow up evaluation on May 15, 2013 and May 27, 2013.

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back for transport to the medical department, so he was not seen. On June 22, 2013, plaintiff
again refused to be seen for his complaint and on July 25, 2013, refused to allow blood to be
drawn for completion of lab work. ECF No. 50 at Ex. 1, p. 5.
Plaintiff was seen on August 10, 2013, by Dr. Ottey and reported that the rectal bleeding
was intermittent and first began after a bout of diarrhea. Plaintiff did not report abdominal pain
or a significant change in appetite. At the time of the exam plaintiff, who is 6’2”, weighed 172
pounds which is within the range of a normal body mass index. No clinical evidence of
poisoning or active gastrointestinal bleeding were found and plaintiff’s vital signs were within
normal limits. Plaintiff’s fecal study was, however, positive for blood. Ottey ordered a complete
blood count and chemistry panel for the purpose of identifying any anemia indicative of
significant loss of blood. The results of those tests were pending at the time defendants filed the
supplemental motion. ECF No. 50 at Ex. 1, p. 6.
In his opposition, plaintiff asserts that medical defendants have not adequately assessed
the cause of his bleeding because they failed to comply with the recommendation that he
undergo a barium enema procedure. ECF No. 78. He claims he never refused the procedure,
rather, he was transported to the hospital for the procedure on November 15, 2011, and January
16, 2012, and each time it was determined the tests could not be performed because of bad
preparation. Although he claims he was told the test would be rescheduled, no apparent effort
has been made to reschedule the test. Indeed, medical defendants assert in their supporting
affidavit that the test is no longer considered necessary even though plaintiff continues to
experience blood in his stool. Additionally, plaintiff asserts his current blood tests confirm that
he is now anemic as a result of the blood loss he has experienced.

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In order to state an Eighth Amendment claim for denial of medical care, a plaintiff must
demonstrate that the actions of the defendants or their failure to act amounted to 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, the plaintiff
was suffering from a serious medical need and that, subjectively, the medical staff members were
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). There is no Eighth
Amendment violation where diagnostic tests are declined based on medical assessments of the
patient. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985) (disagreement with medical
opinion is not deliberate indifference).
It is clear from the undisputed portions of the record that a diagnostic process was begun
in response to plaintiff’s complaints, but was not completed as originally planned. This was not,
however, due to a deliberate attempt to deny needed care to plaintiff. Rather, his condition was
re-assessed as time passed and it was determined a different course was better suited to address
his needs. The affidavits and records submitted by medical defendants do not address his current
physical condition because their supplemental motion to dismiss or for summary judgment was
filed before any test results were returned. To the extent that plaintiff’s assertion that his current
blood tests confirm he is anemic, the court presumes further steps will be taken to further assess
plaintiff’s medical condition as illustrated in the records filed by medical defendants. Given the
efforts made thus far to accurately diagnose and treat plaintiff’s symptoms, the evidence does not
support a finding that medical defendants acted with callous disregard to a life-threatening or
painful condition. They are, therefore, entitled to summary judgment in their favor on this claim.

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A separate order incorporating the content of this memorandum follows.

Date: March 11, 2014

/s/
J. Frederick Motz
United States District Judge

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