Marshall v. Barnett et al

Filing 29

MEMORANDUM filed. Signed by Judge George Levi Russell, III on 1/21/2015. Associated Cases: 8:14-cv-02385-GLR, 8:14-cv-02395-GLR(ko, Deputy Clerk) (c/m 1/22/2015)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

GREGORY MARSHALL #183459
Plaintiff
v.

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DR. AVA JOUBERT
DR. COLIN OTTEY
DR. RAZVI SYED
DR. BOLAJI ONABAJO
JOHN MOSS, P.A.
J. MICHAEL STOUFFER
GREGG L. HERSHBERGER
Defendants

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CIVIL ACTION NO. GLR-14-2633
(Consolidated with GLR-14-2385
and GLR-14-2395)

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MEMORANDUM

THIS MATTER is before the Court on Plaintiff Gregory Marshall’s Petition for
Emergency Injunction (sic) Relief or, in the Alternative, Restating Order Relief(s), Motion to
Amend Plaintiff’s Complaint and Amend with New Defendants, and Motion for a Live
Conference. ECF Nos. 4, 6, 13, GLR-14-2385. The Office of the Attorney General filed a
response to the Petition, but did not respond to Marshall’s Motions. ECF No. 10, GLR-14-2385.
Marshall filed a reply (ECF No. 14, GLR-14-2385), and the Petition is ripe for disposition. The
Motions are unopposed. No hearing is necessary. See Local Rule 105.6 (D.Md. 2014).1 For the
reasons stated below, the Petition and Motions will be denied.

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Accordingly, Marshall’s Motion for a Live Conference (ECF No. 13) will be denied.

I.

BACKGROUND
Plaintiff Gregory Marshall is barred from civil filings under the “three strikes” provisions

of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g) (2012).

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Nonetheless Marshall,

confined at the North Branch Correctional Institution in Cumberland (“NBCI”), filed three civil
rights Complaints against corrections personnel (“the Correctional Defendants”) and contractual
medical personnel (“the Medical Defendants”) seeking injunctive relief mandating his transfer
from NBCI to a Maryland Division of Correction facility closer to the University of Maryland
Medical Center (“UMMC”) so that he can resume radiation treatment for prostate cancer.
Because the allegations in the Complaint demonstrated a possibility that Marshall would suffer
imminent harm if preliminary injunctive relief were not granted, the cases proceeded. Claims
not directly related to the alleged lack of medical treatment were dismissed. The cases were then
consolidated. See ECF No. 19, No. GLR-14-2633; see also ECF No. 3, GLR-14-2395.
In the first action, Marshall v. Syed, No. GLR-14-2385, Marshall sues Medical
Defendants Rizvi Syed, Bolaji Onabanjo and John Ross, and seeks injunctive relief and
monetary damages. In Marshall v. Stouffer, No. GLR-14-2395, Plaintiff names the Correctional
Defendants, J. Michael Stouffer and Gregg L. Hershberger, and requests injunctive relief. On
September 8, 2014, the Office of the Maryland Attorney General was directed to respond to
Marshall’s Petition for Injunctive Relief. ECF No. 5. The Office of the Attorney General filed
its response on September 29, 2014. ECF No. 10. In the above-captioned, lead consolidated
case, Marshall requests injunctive relief and seeks monetary damages against additional Medical
Defendants Dr. Ava Joubert and Dr. Colin Ottey. Counsel for the Maryland Attorney General

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Plaintiff previously has sued alleging improper care regarding his prostate disease. See Marshall v. Patel, No.
RWT-13-2813 (D.Md. Apr. 9, 2014) (dismissing complaint alleging denial of appropriate pain medication by
outside oncologists at UMMC); Marshall v. Bishop, No. RWT-12-985 (D.Md. May 7, 2013) (dismissing action
seeking injunctive relief).

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provided a detailed Response to Show Cause (ECF No. 17), which includes an affidavit by
Medical Defendant Ottey. Marshall filed a reply thereto. ECF No. 14, No. GLR-13-2385.
II.

DISCUSSION
A. Injunctive Relief
“A preliminary injunction is an extraordinary and drastic remedy.” See Munaf v. Geren,

553 U.S. 674, 689 (2008) (internal quotation marks omitted) (quoting 11A C. WRIGHT, ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 2948 (2d ed. 1995)). To obtain a preliminary injunction,
a movant must demonstrate: 1) he is likely to succeed on the merits, 2) he is likely to suffer
irreparable harm in the absence of preliminary relief, 3) the balance of equities tips in his favor,
and 4) an injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). All four of the requirements must be established independently. Pashby v.
Delia, 709 F.3d 307, 321 (4th Cir. 2013). A plaintiff seeking a preliminary injunction must
always “demonstrate that irreparable injury is likely in the absence of an injunction” even though
he has established a likelihood of succeeding on the merits. Winter, 555 U.S. at 22 (emphasis in
original).
Here, the Court finds Marshall is not likely to succeed on the merits. To state a claim for
a federal constitutional deprivation related to a prisoner’s medical care, the prisoner must show
that he has suffered deliberate indifference to a serious medical need. Estelle v. Gamble, 429
U.S. 97, 106 (1976). A prisoner’s disagreement with a prescribed course of treatment does not
establish deliberate indifference, and therefore does not state a claim. See Peterson v. Davis, 551
F.Supp. 137, 146 (D.Md. 1982), aff’d, 729 F.2d 1453 (4th Cir. 1984). Likewise, claims of
medical negligence or disputed questions of medical judgment are not cognizable because they
do not involve deliberate indifference. See Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975)

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(stating questions of medical judgment are not subject to judicial review). Indeed, the “mere
failure to treat all medical problems to a prisoner’s satisfaction . . . is insufficient to support a
claim under § 1983.” Peterson, 551 F.Supp. at 146; accord Fore v. Goodwin, 407 F.Supp. 1145,
1146 (citing Cole v. Williams, 526 F.2d 588 (4th Cir. 1975)) (“A prisoner cannot be ultimate
judge of what medical treatment is necessary or proper . . . .”).
Medical Defendant Ottey, a physician licensed in Maryland, is the Medical Director of
Wexford Health Sources, Inc. to provide medical care to NBCI prisoners and also serves as the
Medical Director of that facility. Colin Ottey’s Aff. ¶ 1, ECF No. 17-2. Ottey has treated
Marshall, is familiar with the claims raised herein, and has reviewed relevant medical records.
Id. ¶ 3. To treat his prostate cancer, Marshall was regularly monitored by oncologists and
radiologists at UMMS and, on June 12, 2013, began receiving radiation and hormone therapy.
Id. ¶ 7.
Ottey avers Marshall was repeatedly non-compliant with his radiation therapy treatment
plan by refusing to attend radiation therapy sessions. Id. ¶ 8. Marshall claimed that his refusals
were partly due to an alleged inability to walk and his treating physician’s alleged failure to
address his complaints of post-radiation therapy pain. Id. Marshall was advised of the risks
associated with refusing radiation therapy, but continued to refuse radiation treatment. Id. Ottey
states Marshall refused to attend radiation therapy sessions on 16 occasions between July 23,
2013, and September 19, 2013. Even when advised missing additional sessions would result in
cancellation of the radiation therapy, Marshall missed his next session.

Accordingly, the

radiation therapy was terminated on September 23, 2013. Id.
Marshall claims he refused to attend radiation therapy sessions due to his unaddressed
complaints of post-radiation therapy pain. Ottey states Marshall was prescribed several pain

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medications which, in his medical opinion, should have provided adequate management of
Marshall’s pain and related complaints. Id. ¶ 12.
A psychiatric evaluation was requested to evaluate Marshall’s continued refusal to
comply with his radiation therapy treatment plan and determine if he was able to make sound and
responsible decisions concerning his health and general welfare. Id. ¶ 15. In December 2013,
the evaluation was completed and it was determined that Marshall was competent to decide to
refuse radiation therapy. Id. Marshall continued to refuse to attend appointments related to his
radiation treatment. Id. ¶ 16.
Despite Marshall’s continued assertions that his prostate cancer is spreading, there has
never been any diagnostic evidence demonstrating that his prostate cancer has metastasized or
that his disease is recurrent.3 Id. ¶ 19. Marshall’s various scans were negative for metastases
and acute disease including mass or lesion. Id. Additionally, Plaintiff’s most recent prostatespecific antigen test on July 11, 2014 indicated no active prostate cancer. Id. On September 19,
2014, Marshall expressed to Ottey that he would be compliant going forward with any new
proposed treatment plan and was, therefore, approved to be evaluated by both urology and
oncology specialist via telemedicine conference.

Id. ¶ 20.

The Court finds Marshall’s

disagreement with his prescribed course of treatment does not establish deliberate indifference
and, therefore, he does not state a claim for a federal constitutional deprivation. Accordingly, the
Court will deny Marshall’s requests for injunctive relief.
Further, Marshall makes no direct claim against Correctional Defendants Stouffer or
Hershberger. As non-medical correctional officials, these Defendants were entitled to rely on the
medical judgment and expertise of prison physicians and medical staff concerning the course of
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Additionally, Ottey states Marshall’s complaints about his vision and inability have been address my medical
personnel and were found to be unsubstantiated. Ottey’s Aff. ¶¶ 9, 17. Ottey further states Marshall is receiving
treatment for hematuria. Id. ¶ 18.

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treatment necessary for Marshall. See Shakka v. Smith, 71 F.3d 162, 167 (4th Cir. 1995); Miltier
v. Beorn, 896 F.2d 848, 854-55 (4th Cir. 1990) (stating supervisory prison officials are entitled to
rely on professional judgment of trained medical personnel and may be found to have been
deliberately indifferent by intentionally interfering with an inmate’s medical treatment ordered
by such personnel), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837
(1994). Accordingly, the Correctional Defendants will be dismissed.
B. Motion to Amend
Marshall’s Motion to Amend seeks to add Medical Defendants Joubert and Ottey, but
they are currently parties in this matter. Further, the Motion seeks to add Correctional Defendant
Warden Frank Bishop and includes concerns Marshall’s claims of wrongful transfer from Jessup
Correctional Institution to NBCI based on a prison adjustment proceeding and the loss of
privileges attendant thereto. Bishop was previously dismissed from this matter. ECF No. 3.
Also, Marshall’s claims regarding his transfer were previously dismissed. ECF No. 18. The
Court will, therefore, deny Marshall’s Motion to Amend.
III.

CONCLUSION
For the forgoing reasons, the Court will deny Marshall’s requests for injunctive relief

(ECF No. 4, GLR-14-2385) and dismiss Correctional Defendants, Stouffer and Hershberger,
from this matter. Also, the Court will deny Marshall’s Motion to Amend Plaintiff’s Complaint
and Amend with New Defendants and Motion for a Live Conference. ECF Nos. 6, 13, GLR-142385. A separate Order follows.
January 21, 2015

/s/
___________________________
George L. Russell, III
United States District Judge

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