Ervin v. Wexford

Filing 51

MEMORANDUM. Signed by Judge Ellen L. Hollander on 5/26/2017. (c/m 5/26/17)(kr2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ROGER ERVIN

*

Plaintiff

*

v

*

WEXFORD, et al.

*

Defendants

Civil Action No. ELH-16-3964

*
***
MEMORANDUM

Roger Ervin, who is self-represented, is incarcerated at North Branch Correctional
Institution (“NBCI”) in Cumberland, Maryland. He has filed suit under 42 U.S.C. § 1983 against
a host of medical and correctional defendants.
Among the motions pending in the above-captioned case is plaintiff’s recent motion to
stay. ECF 46. In it Ervin seeks a stay to permit him to file an opposition response to the pending
motions to dismiss or for summary judgment. He states the stay is needed so that he will have
time to recover from planned eye surgery and also because he has been assigned to
administrative segregation and does not have access to legal materials. Id.
Notwithstanding plaintiff’s statements that he is unable to write or file an opposition
response, he has filed four pieces of correspondence1 that include exhibits, and which address his
arguments as to why defendants are not entitled to judgment in their favor. ECF 47 – ECF 50.
The last piece of correspondence from plaintiff is written in the form of an affidavit and
does not appear to be written in plaintiff’s handwriting. ECF 50. In that correspondence
1

Much of the correspondence filed by plaintiff is addressed to me personally. ECF 47,
48, & 49. Plaintiff is advised that any document sent to this court pertaining to this case must be
docketed on the court’s electronic docket and will be available for review by all parties in the
case as well as the general public. Ex parte communication, i.e., private communication with the
presiding judge in an active case, is generally prohibited.

plaintiff renews his motion for preliminary injunction requiring the medical defendants to
provide him with needed eye surgery and for a transfer to Jessup Correctional Institution (“JCI”).
Id.; see also, e.g., ECF 7; ECF 12.
For the reasons set forth below, plaintiff’s motion for stay and motion for preliminary
injunction will be denied. But, I will grant an extension of time to plaintiff to file an opposition
to the pending dispositive motions.
I. Background
As noted, plaintiff is incarcerated at NBCI.

In his Complaint (ECF 1), and his

supplement (ECF 5), and in a motion for extension (ECF 12), plaintiff alleged that he required
sinus surgery and eye surgery, both of which would be performed at a facility in Baltimore City.
He claims that each time he is scheduled for a procedure he is transferred to JCI in Jessup,
Maryland. Further, he asserts that every time he is temporarily transferred for purposes of a
medical procedure his prescribed medications are not sent with him. In addition, he claims that
the failure to provide him with the prescribed eye drops for his glaucoma is endangering his
vision, and that he is at risk of dying if he develops a sinus infection because the infection could
enter his brain through a hole in his eye. The injunctive relief he requests is a transfer to JCI so
that the issue concerning continuity in receipt of prescription medication can be resolved. See
ECF 1, 4, 5, 12.
By Order dated February 9, 2017 (ECF 13), I required counsel for the medical defendants
and for the Division of Correction to show cause why plaintiff’s request for injunctive relief
should not be granted. Id. The responses to the Order, supported by affidavits and verified
records, have been received. ECF 20 and ECF 21.

2

Medical defendants respond that plaintiff has two medical issues that require surgery and
his temporary transfer to JCI. The first surgery involved correction of a deviated septum and
hypertrophy of the nasal turbinates.2 He underwent the surgical procedure on January 24, 2017.
ECF 21-3 at 3, 12. On the day after the surgery, an antibiotic (azithromycin) was ordered and
plaintiff was seen by Dr. Mahboob Ashraf, who noted that plaintiff was observed in the JCI
infirmary for 23 hours following the surgery and he did not voice any medical complaints during
that time. ECF 21-3 at 7 – 10, 29. Plaintiff was discharged from the infirmary to NBCI general
population on January 26, 2017. Id. at 29.
The second surgery that plaintiff requires is for treatment of “angle recession glaucoma”
of his left eye. ECF 21-3 at 14. Plaintiff underwent surgery for the same condition in 2008, but it
failed to correct the problem. Dr. Paul Goodman recommended that plaintiff undergo cataract
removal surgery and tube shunt insertion in his left eye in a consultation note dated January 19,
2017. On February 22, 2017, plaintiff arrived at JCI for eye surgery that was scheduled for the
following day; however, he refused the eye surgery because “he felt he wasn’t healed from the
last surgery he had on his nose.” Id. at 18, 20. There is no indication that plaintiff was concerned
about medication that was not sent with him on his transfer to JCI. Id. at 31.
The Division of Correction defendants assert that the injunctive relief should be denied
because plaintiff is a maximum security inmate serving a sentence of life plus a consecutive 20
years for first degree rape, a violent felony.

ECF 20-1 (Declaration of John White, Case

Management Specialist). Such inmates are ineligible for placement into prisons that are not
2

Turbinate hypertrophy is the chronic enlargement of the blood vessels in the tissue
lining of turbinates, which are spongy bone structures that protrude into the nasal passages and
direct airflow inside the nose. Turbinates are covered with respiratory epithelium, a tissue that
helps clean and humidify air that passes through the nose. See http://dfwsinus.com/nasal-airwayobstruction/nasal-turbinate-hypertrophy/.
3

maximum security facilities, like JCI. Id. Further, they report that the procedure for ensuring
that prescribed medication accompanies the inmate on a temporary transfer is partially the
responsibility of correctional and medical staff and partially the responsibility of the inmate
himself. Id.
Medications that are dispensed to plaintiff on a daily basis by medical staff are packed
and sealed in a package by medical staff and the transportation correctional officer picks them up
prior to leaving the facility. ECF 20-2 (Declaration, Donald Gulick, Transportation Coordinator);
ECF 21-2 (Affidavit of Mercy Addai, RN). Correctional staff are not privy to the contents of
those sealed packages. ECF 20-2. The medication that plaintiff is provided to keep with him,
designated as “keep on person” or “KOP”, is kept in his cell and it is his responsibility to bring
that medication with him. ECF 21-4 (Affidavit of Krista Bilak, RNP). Neither correctional nor
medical staff enter the inmate’s cell to determine if appropriate medications are being brought
with the inmate on the transfer. Id.
In plaintiff’s case the KOP medications for which he is responsible include the eye drops
that he asserts are crucial to saving his eyesight because they control the pressure in his eyes.
ECF 21-4 at 3. Thus, to the extent that plaintiff did not have the eye drops with him on a
particular trip, it was not the result of a deliberate act by correctional or medical staff. Rather it
was plaintiff’s failure to provide the eye drops to nurses prior to his transportation. Id. Despite
that fact, efforts were made to provide the missing medications to plaintiff when he arrived at
JCI without them. ECF 21-2 at 2, ¶¶ 7 & 8.
II. Standard of Review
A preliminary injunction is an “extraordinary and drastic remedy.” See Munaf v. Geren,
553 U.S. 674, 689-90 (2008). To obtain a preliminary injunction, a movant must demonstrate:

4

1) that he is likely to succeed on the merits; 2) that he is likely to suffer irreparable harm in the
absence of preliminary relief; 3) that the balance of equities tips in his favor; and 4) that an
injunction is in the public interest. See Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7,
20 (2008); The Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346 (4th
Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010), reinstated in relevant part on
remand, 607 F.3d 355 (4th Cir. 2010) (per curiam).
III. Discussion
Plaintiff has failed to establish that the requested injunctive relief, i.e., transfer to JCI,
requested is necessary to insure his adequate medical care. Indeed, it appears that plaintiff has
changed his position in light of the evidence produced by defendants and now asserts that NBCI
is a dangerous prison for a man his age (55 years old) with his health conditions; the ENT doctor
ordered him to be single-celled after the sinus surgery until he receives a post-operative
appointment; and he requests an order from this court requiring prison officials to abide by all
medical orders issued by the ENT doctor. ECF 16 (motion to amend complaint). Plaintiff states
he sent a copy of the doctor’s order requiring his confinement to a single cell to this court3 and
that because he could not produce his copy of the order, he was placed on disciplinary lock-up.
Further, he insists that delays in providing him with eye surgery are increasing the possibility
that he will permanently lose all or part of his vision. Although plaintiff asserts his sinuses are
infected, the only symptom plaintiff claims to suffer is nosebleeds. Further, the signed document

3

Although an outside doctor may certainly recommend a single-cell assignment, this
court may defer to the expertise of correctional officials and those charged with caring for
inmates when considering matters such as cell assignments.
5

indicating he was declining eye surgery does not indicate that he was doing so because he had a
sinus infection.4
Plaintiff’s concerns regarding his housing status, the safety of NBCI for a man of his age
and health status, and the proximity in time of the sinus surgery with the eye surgery appear to be
based on his subjective fears and remain unsupported by objective evidence. Such fears are not a
cognizable basis for an extraordinary remedy such as a preliminary injunction.
In light of the objective evidence provided by defendants, which establishes that
plaintiff’s life is not endangered by the delay in eye surgery, and at least a portion of the delay in
providing plaintiff with the eye surgery, is due to his own decision to delay it, plaintiff’s request
for preliminary injunctive relief shall be denied.
Plaintiff was granted an extension of time to and including May 28, 2017, in which to file
his opposition response. ECF 31. However, plaintiff will be granted an additional period of
time, to and including June 26, 2017. His motion for stay shall otherwise be denied.
A separate Order follows.

May 26, 2017
Date

______/s/______________________
Ellen L. Hollander
United States District Judge

4

Defendants suggest that plaintiff declined the initial surgical date because it would
require his transfer to JCI again and seemingly strengthen his claim that a permanent transfer to
JCI is warranted. ECF 20.
6