Washington v. Stewart et al

Filing 30

MEMORANDUM OPINION Signed by Judge Deborah K. Chasanow on 2/10/2017. (cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID N. WASHINGTON,

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Plaintiff

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v

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TIMOTHY STEWART, et al.,

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Defendants

Civil Action No. DKC-15-3181

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MEMORANDUM OPINION

Pending is a motion to dismiss, or alternatively, for summary judgment filed by
Defendants Timothy Stewart, Mohamed Moubarek, and Kristi Crites. ECF No. 22.1 Plaintiff
has responded. ECF No. 28. Upon review of the papers filed, the court finds a hearing in this
matter unnecessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below,
Defendants’ dispositive motion will be GRANTED.
I. Complaint Allegations
Plaintiff David N. Washington, an inmate currently confined at the Federal Medical
Center-Devens in Ayer, Massachusetts, filed his complaint naming as Defendants the Warden of
Federal Correctional Institution (“FCI”) Cumberland, Timothy Stewart, FCI Cumberland
Clinical Director Mohammed Moubarek, and FCI-Cumberland Certified Registered Nurse
Practitioner Kristi Crites.

ECF No. 1, pp. 1-2.

Plaintiff alleged that he was denied

constitutionally adequate medical care while housed at FCI Cumberland. As a federal prisoner,
Plaintiff asserts his civil rights claims pursuant to Bivens v. Six Unknown Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971).

1

Citations are to the court’s electronic docket, except as to ECF No. 22, Ex. 1 which is filed separately in
paper format.

In support of his complaint, Plaintiff states that on September 9, 2013, he was transferred
from the District of Columbia Jail to FCI Cumberland. Id, p. 3., ¶ 1. At the time of his transfer,
Plaintiff brought with him his medical records and prescribed medications. Id. At that time,
Plaintiff was prescribed medication to treat his severe lower back, right hip, right knee, and leg
pain, as well as medication for prostate problems, high cholesterol, and severe depression. Id.
Plaintiff’s medication was withheld from him during his arrival screening at FCICumberland. He was advised that he would need to be seen by the doctor at the FCI before he
would be authorized to resume taking the prescribed medication. Id., ¶ 2. “Days later” Plaintiff
was seen by Dr. Lin who advised Plaintiff that the Bureau of Prisons (BOP) would have to
approve continuation of Plaintiff’s prescribed medication. Id., ¶ 3. Plaintiff was advised that he
would have to purchase Ibuprofen through the commissary for pain relief while he awaited
approval from the BOP regarding as to his prescribed pain medication. Id.
After Dr. Lin left FCI-Cumberland, at the end of 2013, Plaintiff was assigned to Ms.
Hennigan a/k/a Nurse Practitioner Kristi Crites. Id., ¶ 4. Plaintiff states that Crites never called
Plaintiff for chronic care appointments or for any other reason. Id. Plaintiff complained to Mr.
Shook, Health Services Administrator, regarding the failure to call him to the chronic care clinic,
his medical issues not being addressed, and that he was required to pay $2.00 per visit when
utilizing an emergency sick call. Id.
At an unspecified time, Plaintiff began to experience severe pain in his right hip, in both
legs, and in his back. Id., p. 4, ¶ 5. Plaintiff experienced difficulty walking due to the pain and
also due to hardness in his right calf. He reported to medical on an emergency sick call on
May 21, 2014. Id. On that same day, Plaintiff was transported to an outside radiology clinic

2

where an ultra sound was performed. On May 23, 2014, he was transported to the West Virginia
University Medical Center and seen in the Vascular Surgery Department. Id. Plaintiff was
advised by the surgeon that the ultra sound images were inadequate and a CT scan was necessary
to determine whether and what type of surgery was required. Id. The surgeon advised Plaintiff
to have the CT scan done and return with the results as soon as possible. Id.
Mohamed Moubarek, Clinical Director at FCI-Cumberland, refused to authorize the CT
scan and instead ordered Plaintiff to receive intravenous antibiotics for seven days; indicating his
belief that Plaintiff suffered from an infection and not a blood clot. Id., ¶ 6. Plaintiff neiether
returned to the West Virginia University Medical Center nor received the CT scan the surgeon
requested. Id.
Plaintiff indicates that he sent several requests to health services complaining about the
pain and numbness he experienced in both legs following the antibiotic treatment. Id., ¶ 7.
Plaintiff indicates that he attempted to address his concerns with Crites. Id., p. 5, ¶ 8. Plaintiff
alleges that Crites exhibited apathy and indifference towards his medical needs. Id. In support
of his claim, Plaintiff states that he signed authorizations for Crites to request and receive his
medical records from outside providers so she could understand his various medical needs.
Crites did not receive the relevant medical records and when Plaintiff advised her that the
obtained records were incomplete and not relevant to his current concerns she advised him to
obtain the records himself. Id.
Plaintiff filed grievances regarding his medical care and contacted Congresswoman
Eleanor Holmes Norton regarding his complaints.

Id., ¶¶ 9 & 10.

In response to the

Congresswoman’s inquiry, Warden Timothy Stewart advised that, pursuant to the representations

3

of Mohamed Moubarek, Plaintiff was receiving treatment and medication for his conditions and
was being considered for an orthopedic evaluation in regard to his hip complaints. Id., ¶ 10. In
response to Stewart’s representations, Plaintiff advised Stewart that he was not being treated for
any of his medical conditions and had not been prescribed any medications. Id., p. 6, ¶ 11.
On an unspecified date, Plaintiff advised the Health Services Administrator that he was
experiencing severe pain and numbness in both of his legs and it was difficult to walk short
distances due to the loss of feeling. Crites was unable to determine that anything was wrong
with Plaintiff’s legs and did not refer him to a specialist for further examination. Id., ¶ 12.
Plaintiff was advised by the Health Service Administrator that he would not assign Plaintiff a
new care provider as medical care and treatment were within the purview of Moubarek. Id., ¶
13.
On January 30, 2015, Plaintiff informed Assistant Warden Arviza that he was suffering
severe pain and numbness in both his legs making it difficult to walk short distances. Id., ¶ 14.
Arviza contacted Dr. S. McGann, who was on duty at that time. Plaintiff was seen by Dr.
McGann that day and prescribed medications to treat the pain in his hip and legs and medication
for high cholesterol. Plaintiff was diagnosed as suffering from diabetes and prescribed diabetic
medication. Dr. McGann also referred Plaintiff for high blood pressure checks but Plaintiff
states those were not performed by Crites. Id.
Plaintiff alleges that Moubarek advised him that the BOP did not provide medical care
for non-life threatening medical conditions and Plaintiff would have to endure without surgery.
Id., p. 7, ¶ 15.

4

A request for orthopedic evaluation of Plaintiff’s right hip had been submitted by
Moubarek to the Mid-Atlantic Region on January 29, 2015. Id., ¶ 16. The request was approved
and notice provided to Plaintiff on February 12, 2015. Id.
On March 26, 2015, Plaintiff was taken to the West Virginia University Orthopedic
Clinic and evaluated by Dr. Karim Boukhemis who determined that Plaintiff was in need of a hip
replacement. Id., ¶ 17. It was noted that Plaintiff suffered from arthritis in the hip and was
unable to perform his daily activities and was in constant pain. Id. Plaintiff indicates that
determination regarding Plaintiff’s vascular problems in his legs was necessary prior to any
surgery. Id.
Plaintiff returned to FCI-Cumberland where he continued to experience severe pain in his
right hip, pain and numbness in both legs, and the toe on his left foot swelled and curled. Id.,
¶18. Plaintiff was advised by Crites and Moubarek that there was nothing unusual about his foot
and it did not appear he suffered from a vascular condition. Moubarek continued to refuse
authorization of the CT scan requested by the vascular surgeon in May of 2014. Id.
On May 12, 2015, a Health Services Administrator submitted a “Re-Designation Referral
Request for Medical Transfer” to Warden Stewart which was approved. Id., p, 8, ¶ 19. The
matter was then submitted to Moubarek who referred the matter to the Mid-Atlantic Region
Medical Designator Cheryl Owens who recommended that the request be submitted for
“Regional review via Inter-Qual” to determine whether Plaintiff’s condition met established
criteria for hip replacement. Id. On June 23, 2015, Dr. Gomez disapproved the request for hip
replacement. Id.

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Plaintiff was advised by Moubarek that he would have to undergo physical therapy
before authorization for medical transfer and hip replacement would be approved. Id., ¶ 20.
Plaintiff began physical therapy in July of 2015. He was advised by the physical therapist that
after four sessions he would be re-evaluated. Id. Plaintiff states that he continues to have severe
pain in his hip, pain and numbness in both legs, and difficulty walking and sleeping. Id.
Moubarek advised Plaintiff that the pain and numbness in his legs was probably related to
the arthritis in his hip. Moubarek continued to disregard the request for a CT scan. Id., ¶21.
Plaintiff indicates that Crites failed to identify any of Plaintiff’s medical issues. Id., p. 9,
¶ 23. He notes that Dr. McGann diagnosed Plaintiff as suffering from diabetes, high blood
pressure, high cholesterol, and prescribed medication after one evaluation and review of his
medical records. Id., p. 8, ¶ 22. Plaintiff states that he continues to suffer pain and numbness in
both his legs. Id., p., 9, ¶ 24. He alleges that Moubarek has no evidence to support his inference
that Plaintiff’s medical issues are due to his arthritic hip as opposed to a vascular issue. Id.
Plaintiff further alleges that Crites and Moubarek have conspired to omit documentation of
Plaintiff’s symptoms. Id., ¶ 25.
Defendants’ Response
Defendants assert that Plaintiff received appropriate medical care and provide medical
records to support their assertion.

ECF No. 22, Ex. 1.

Upon Plaintiff’s intake at FCI-

Cumberland on September 9, 2013, it was noted that he suffered from back, hip, knee and leg
pain and would be evaluated by the primary care provider. Id., p. 17. The following medications
were renewed or ordered: Ibuprofen, Gemfibrozil (used to reduce cholesterol and triglycerides)2,

2

See https://www.drugs.com/gemfibrozil.html.

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Trazodone (used to treat depression)3, Pravastatin (a “statin” used to reduce “bad” cholesterol),4
Tamsulosin, (an alpha-blocker used to relax the muscles in the prostate and bladder)5, and
Gabapentin6 (an anti-epileptic medication used to treat seizures as well as certain types of pain).
Id., p. 18.
A.

Right Hip Pain
Upon Plaintiff’s intake at FCI-Cumberland, Plaintiff complained of right hip pain. Id.,

Ex. 1, pp. 15-36. Dr. Lin ordered an x-ray which revealed moderate degenerative joint disease.
Id., p. 35. Plaintiff was advised that he could purchase over the counter pain medication via the
commissary. Id., p. 37. During Plaintiff’s examination on September 18, 2013, he was able to
sit on the examination table with his right hip fully flexed without “gross discomfort.” Id., p. 31.
On September 9, 2014, during Plaintiff’s routine care clinic visit, he advised Crites that
he was suffering chronic hip pain after playing handball. Id., p. 174. Crites ordered an x-ray
and referred Plaintiff to the commissary for over the counter pain medication. Id., pp. 173-178;
see also ECF No. 22-5, ¶ 4 (Crites Declaration). The x-ray showed moderate degenerative joint
disease (ECF No. 22, Ex. 1, p. 291) which was no change from the x-ray taken in September of
2013. ECF No. 22-5, ¶ 5.
Another hip x-ray was conducted in January of 2015; this time revealing severe
degenerative joint disease in the right hip. ECF No. 22, Ex. 1, p. 282. On January 22, 2015,
Crites evaluated Plaintiff during a follow up appointment. Id., p. 144; ECF No. 22-5 ¶ 7. She
and Moubarek reviewed the x-ray and diagnosed Plaintiff as suffering from severe degenerative

3
4
5
6

See https://www.drugs.com/trazodone.html.
See https://www.drugs.com/pravastatin.html.
See https://www.drugs.com/tamsulosin.html.
See https://www.drugs.com/gabapentin.html.

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joint disease in the right hip. ECF No. 22, Ex. 1, pp. 146, 148. Crites requested a consultation
with an orthopedic surgeon. Id., p. 144.
Moubarek and Crites opine that Plaintiff’s engagement in strenuous physical activity in
late 2014 likely accelerated his joint disease. ECF No. 22-5 ¶ 18, ECF No. 22-6 ¶ 18 (Moubarek
Declaration). Medical records demonstrate that Plaintiff was treated on a number of occasions
for injuries arising from playing handball in late 2014. ECF No. 22, Ex. 1, pp. 53, 153, 161, 163.
Plaintiff complained on January 30, 2015, that he suffered hip pain on a daily basis. Id,.
p. 128. Examination demonstrated a decreased range of motion. Id., p. 130. Dr. McGann
prescribed Meloxicam for pain relief. Id. On February 3, 2015, Moubarek requested referral of
Plaintiff to an orthopedic surgeon for evaluation which was approved on February 12, 2015. Id.,
p. 126 & 272.
Plaintiff was evaluated by an orthopedic surgeon on March 26, 2015. The surgeon found
Plaintiff’s symptoms and x-rays demonstrated severe arthritis of the right hip. Given the amount
of arthritis present, a total hip replacement was recommended. Id., p. 262. Plaintiff was
scheduled for a follow up with his primary care physician in two weeks to discuss the results of
the consultation. Id., p. 119.
Thereafter, Moubarek and Crites began the process to have Plaintiff transferred to a
higher-level care facility so he could undergo a total hip replacement. ECF No. 22-5, ¶ 10; ECF
No. 22-6, ¶ 10; ECF No. 22, Ex 1, pp. 592-595. Ultimately, the acting Regional Medical
Director denied the request to transfer for a total hip replacement on the basis that less invasive
measures, in this case physical therapy, should first be explored. ECF No. 22-5, ¶ 1; ECF No.
22-6, ¶ 11; ECF No. 22, Ex 1, p. 597.

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Crites wrote a consult for Plaintiff to begin physical therapy. ECF No. 22-5, ¶ 12.
Plaintiff participated in four physical therapy sessions from late August 2015 to September 2015.
ECF No. 22, Ex. 1, pp. 602-606. In October, 2015, the physical therapist noted minimal
improvement over the course of the four visits. Id,. p. 608. The physical therapist indicated
Plaintiff’s pain was not muscular in nature and he would have poor rehabilitation potential. The
physical therapist sent a “close out note” to FCI Cumberland on October 5, 2015. Id.
On October 16, 2015, Crites sent a second request for Plaintiff to undergo a right hip
placement. Id., p. 611; ECF No. 22-5, ¶ 13. The request noted that Plaintiff had been provided
bottom bunk status, a cane for assistance in walking, Tylenol, Motrin and Mobic provided no
pain relief to Plaintiff, he did not benefit from physical therapy, and that an outside orthopedic
surgeon recommended a total hip replacement. ECF No. 22, Ex, 1, p. 611; ECF No. 22-5, ¶ 13.
Plaintiff was approved for a transfer to a Care 4 level institution in December of 2015. ECF No.
22, Ex. 1, p. 624.
On March 14, 2016, Plaintiff was transferred to Federal Medical Center (FMC) Devens
where he was awaiting surgery at the time Defendants’ filed their dispositive motion. ECF No.
22-5, ¶ 17; ECF No. 22-6, ¶ 17; ECF No. 22-7, ¶ 5 (Yeh Declaration).
B.

Arterial Disease
Although Plaintiff self-reported he suffered from vascular disease, Plaintiff’s medical

providers never diagnosed him with same and there is no objective evidence he suffers from
same. ECF No. 22-5, ¶ 20, ECF No. 22-6, ¶ 19 ECF No. 22, Ex. 1, pp., 182, 219, 260, 262, 317.
On May 21, 2014, Plaintiff reported pain in his right calf. ECF No. 22, Ex. 1, pp. 215221; ECF No. 22-6, ¶ 21. He was sent out for a sonogram that same day to rule out Deep Vein

9

Thrombosis (“DVT”). Id. The sonogram ruled out DVT but a 6 centimeter ill-defined mixed
echogenic area in the right calf muscle consistent with a post traumatic hematoma or possible
infection was identified. ECF No. 22, Ex 1, p. 345, 539; ECF No. 22-6, ¶ 21. After reviewing
the ultrasound report Moubarek decided to treat Plaintiff for a possible infection by
administering antibiotics. ECF No. 22, Ex. 1, p. 439; ECF No. 22-6 ¶ 21. On May 27, 2014, it
was noted that the hematoma was resolving and there was no need for further antibiotics. ECF
No. 22, Ex. 1, p. 411. Plaintiff was scheduled for follow-up on June 30, 2014, regarding this
issue but failed to appear. Id., p. 179, ECF No. 22-6, ¶ 22. Examination of plaintiff during a
routine chronic case clinic in September of 2014, showed that his lower extremities were within
normal limits. ECF No. 22, Ex. 1, p. 404; ECF No. 22-6 ¶ 23.
C.

Left Toe Deformity
Plaintiff complained of foot pain and numbness on several occasions. Id., Ex. 1, p. 149,

377, 619. In January, 2015, an x-ray of Plaintiff’s left foot was ordered. Id., p. 508. The x-ray
showed no fractures but demonstrated that Plaintiff was flat footed and had a minor bunion.
(hallux valgus with 14 degrees). Id. On January 30, 2015, a monofilament examination of
Plaintiff’s left foot was conducted which revealed a loss of sensation. Id., p. 130. Dr. McGann
noted that the neuropathy could be due to diabetes and prescribed Metformin. Id. Records
demonstrate that thereafter Crites, as well as other providers, counseled Plaintiff on a number of
occasions regarding his need to maintain a healthy diet, exercise, and monitor his weight due to
his diabetic condition. Id., pp. 51, 146, 350, 355, 374, 624; ECF No. 22-5 ¶ 7, 21. Moreover,
Plaintiff was prescribed medication to help control his diabetes. ECF No. 22, Ex. 1, p. 624.

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II.
A.

Non-dispositive Motions

Motions to Seal
Pending is Defendants’ Motion to Seal. ECF No. 21. Local Rule 105.11 governs the

sealing of all documents filed in the record and states in relevant part that: “[a]ny motion
seeking the sealing of pleadings, motions, exhibits or other documents to be filed in the court
record shall include (a) proposed reasons supported by specific factual representations to justify
the sealing and (b) an explanation why alternatives to sealing would not provide sufficient
protection.” Local Rule 105.11 (D. Md. 2016). The rule balances the public’s general right to
inspect and copy judicial records and documents, see Nixon v. Warner Communications, Inc.,
435 U.S. 589, 597 (1978), with competing interests that sometimes outweigh the public’s right,
see In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir. 1984). The common-law presumptive
right of access can only be rebutted by showing that “countervailing interests heavily outweigh
the public interest in access.” Doe v. Pub. Citizen, 749 F.3d 246, 265- 66 (4th Cir. 2014)
(quoting Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)). The right
of access “may be restricted only if closure is ‘necessitated by a compelling government interest’
and the denial of access is ‘narrowly tailored to serve that interest.’” Id. at 266 (quoting In re
Wash. Post Co., 807 F.2d 383, 390 (4th Cir. 1986)).

“[S]ensitive medical or personal

identification information may be sealed,” although not where “the scope of [the] request is too
broad.” Rock v. McHugh, 819 F. Supp. 2d 456, 475 (D. Md. 2011). Having shown a compelling
interest in sealing Plaintiff’s medical records at issue, the Motion to Seal shall be granted.

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III. Standard of Review
A.

Motion to Dismiss
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the

sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243
(4th Cir. 1999). The dismissal for failure to state a claim upon which relief may be granted does
not require defendant to establish “beyond doubt” that plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. See Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 561 (2007). Once a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint. Id. at 563. The court need not,
however, accept unsupported legal allegations, see Revene v. Charles County Comm'rs, 882 F.2d
870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, see Papasan v. Allain,
478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual
events, see United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
B.

Motion for Summary Judgment
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).
12

“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) (alteration 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)).
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) the Supreme Court
explained that in considering a motion for summary judgment, the “judge=s function is not
himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.” A dispute about a material fact is genuine “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. Thus,
“the judge must ask himself not whether he thinks the evidence unmistakably favors one side or
the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the
evidence presented.” Id. at 252.
The moving party bears the burden of showing that there is no genuine issue as to any
material fact. No genuine issue of material fact exists if the nonmoving party fails to make a
sufficient showing on an essential element of his or her case as to which he or she would have
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the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, on
those issues on which the nonmoving party has the burden of proof, it is his or her responsibility
to confront the summary judgment motion with an affidavit or other similar evidence showing
that there is a genuine issue for trial.
IV. Analysis
A.

Official Capacity
Plaintiff’s claims against Defendants in their official capacities are subject to dismissal.

A Bivens action will not lie against federal agencies or federal officials in their official capacity.
See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994).
B.

Absolute Immunity
Crites, an employee of the United States Public Health Services (“PHS”) (ECF 22, Ex. 4,

¶ 2), is entitled to absolute immunity as to Plaintiff’s Bivens claim. Plaintiff’s sole remedy for
Crites’ alleged conduct is through the Federal Tort Claims Act (FTCA).
Title 42 U.S.C. § 233(a) provides:
The remedy against the United States provided by [the FTCA]...for damage for
personal injury, including death, resulting from the performance of medical,
surgical, dental or related functions...by any commissioned officer or employee of
the Public Health Service while acting within the scope of his office or
employment, shall be exclusive of any other civil action or proceeding....
In Hui v. Castaneda, 559 U.S. 799 (2010), the Supreme Court held that § 233(a)
precludes Bivens action against PHS personnel for constitutional violations arising out of their
official duties.

Id., 802.

“Section 233(a) grants absolute immunity to PHS officers and

employees for actions arising out of the performance of medical or related functions within the
scope of their employment by barring all actions against them for such conduct.” Id. at 806. The

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plain text of § 233(a) precludes a Bivens action. Id. at 811. As such, Crites is entitled to
dismissal.
C.

Supervisory Liability
It is well established that the doctrine of respondeat superior does not apply in claims of

this type. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no respondeat superior
liability under § 1983); see also Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (no
respondeat superior liability in a Bivens suit). Liability of supervisory officials “is not based on
ordinary principles of respondeat superior, but rather is premised on ‘a recognition that
supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative
factor in the constitutional injuries they inflict on those committed to their care.’” Baynard v.
Malone, 268 F.3d 228, 235 (4th Cir. 2001) (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.
1984)).
Nonmedical correctional supervisors are entitled to rely on the medical judgments and
expertise of prison medical staff as to the appropriate course of treatment for inmates. See
Shakka v. Smith, 71 F. 3d 162, 167 (4th Cir. 1996); see also Miltier v. Beorn, 896 F. 2d 848, 85455 (4th Cir. 1990) (holding supervisory prison officials entitled to rely on the professional
judgement of trained medical providers and may only be found deliberately indifferent through
intentional interference in the inmate’s medical care).
Plaintiff’s claim that Warden Stewart failed to insure that he was provided “the requisite
standard of care by the Health Services Department” (ECF No. 1, p. 11) is insufficient. Warden
Stewart is not personally responsible for the medical screening, diagnosis or treatment of inmates
and defers to the opinions and medical expertise of the professionals within the Health Services.

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ECF No. 22, Ex. 7, ¶ 3. Plaintiff has failed to point to any personal conduct by Warden Stewart
in regard to the provision of medical care to Plaintiff.
D.

Eighth Amendment
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). “Scrutiny under the Eighth Amendment is not limited to those punishments authorized
by statute and imposed by a criminal judgment.” De’Lonta v. Angelone, 330 F. 3d 630, 633 (4th
Cir. 2003) citing Wilson v. Seiter, 501 U.S.294, 297 (1991).

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 is a very high standard
– a showing of mere negligence will not meet it. . . . [T]he Constitution is designed to deal with
deprivations of rights, not errors in judgments, even though such errors may have unfortunate
consequences. To lower this threshold would thrust federal courts into the daily practices of
local police departments.” Grayson v. Peed, 195 F.3d 692, 695- 96 (4th Cir. 1999).
Deliberate indifference to a serious medical need requires proof that, objectively, the
prisoner plaintiff was suffering from a serious medical need and that, subjectively, the prison
staff 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). Objectively, the
medical condition at issue must be serious. See Hudson v. McMillian, 503 U.S. 1, 9 (1992)
(there is 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.

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The subjective component requires “subjective recklessness” in the face of the serious
medical condition. See Farmer, 511 U.S. at 839B 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 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. See Farmer, 511 U.S. at 844. Reasonableness of the actions taken must be judged in
light of the risk the defendant actually knew at the time. See Brown v. Harris, 240 F. 3d 383,
390 (4th Cir. 2000); citing Liebe v. Norton, 157 F. 3d 574, 577 (8th Cir. 1998) (focus must be on
precautions actually taken in light of suicide risk, not those that could have been taken).
Analysis of Eighth Amendment Claim
The undisputed record establishes that Plaintiff did not suffer a serious medical need for
which he did not receive constitutionally adequate medical care. Indeed, the records filed
establish that Crites and Moubarek, along with other medical staff, have treated Plaintiff’s
complaints and filed the appropriate requests for consultation with outside specialists.
As to Plaintiff’s hip pain, he was provided analgesic medication as well as several x-rays.
When x-rays demonstrated a worsening of his degenerative joint disease he was referred to an
outside specialist who recommended hip replacement. Plaintiff takes issue with the rapidity with
which his joint disease progressed from moderate to severe, and cites same as evidence of
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Defendants’ indifference. ECF No. 28. Plaintiff’s care providers at FCI-Cumberland promptly
instituted the paperwork to authorize the surgery and have Plaintiff transferred to the appropriate
facility. The request was rejected in favor of additional conservative treatment. Thereafter,
Plaintiff was provided physical therapy which ultimately proved ineffective.

His medical

providers again filed paperwork to have his surgery approved and him transferred. This second
request was approved. “D]isagreements between an inmate and a physician over the inmate’s
proper care do not state a § 1983 claim unless exceptional circumstances are alleged.” Wright v.
Collins, 766 F.2d 841, 849 (4th Cir. 1985). No exceptional circumstances are demonstrated here.
As to Plaintiff’s claim of vascular disease, there is simply no evidence in the record that
Plaintiff suffered from vascular disease while housed at FCI-Cumberland.

When Plaintiff

complained of pain in his calf he was sent immediately for diagnostic testing. The testing ruled
out DVT but was suspicious for either a bruise or infection. Dr. Moubarek prescribed antibiotics
to treat the possible infection and Plaintiff was seen for follow up care which revealed that the
issue had resolved. While Plaintiff maintains that the issue had not resolved in that his leg
remained painful, Plaintiff was advised by Moubarek that he believed the pain Plaintiff suffered
in his legs was not caused by vascular disease but rather was caused by Plaintiff’s degenerative
joint disease.
Plaintiff notes that on May 18, 2016, he was taken to the University of Massachusetts
Medical Center where an on-site ultra sound was performed which revealed “the same condition
that existed on 5-21-14 while at Cumberland, FCI.” ECF No. 28, p. 5. Plaintiff does not explain
what this “condition” is, nor does he provide a copy of any medical report. The fact that some
two years later Plaintiff suffered the same or similar ailment does not demonstrate that Moubarek

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callously disregarded a threat to Plaintiff’s health. Despite Plaintiff’s contention that Moubarek
acted with deliberate indifference, there is simply no evidence to support such a claim.
Moubarek assessed Plaintiff and decided on a conservative course of treatment which appeared
to be effective. To the extent Moubarek erred in assessing Plaintiff’s ailment, at best the record
would support a claim of negligence, not deliberate indifference.
Plaintiff’s complaint regarding his toe was also investigated via evaluation and diagnostic
procedures which included x-rays and nerve testing. Plaintiff suffered no fracture in his toe but
did suffer from a bunion and neuropathy which medical staff believed was related to his diabetes.
As a result of the diagnostic testing, Plaintiff was prescribed Metformin to better control his
diabetes.
The fact that Plaintiff’s concerns have been documented, discussed, followed-up, and
referred for testing, is evidence that there has been no attempt by medical staff or the named
Defendants to ignore a serious medical need or recklessly to disregard it.
While it is understandable that Plaintiff may have desired more aggressive treatment, the
right to treatment is “limited to that which may be provided upon a reasonable cost and time
basis and the essential test is one of medical necessity and not simply that which may be
considered merely desirable.” Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir.1977) (emphasis
in original). The record evidence indicates that Plaintiff’s requests were considered and his
needs addressed. To the extent some of Plaintiff’s complaints may have gone unaddressed, “an
inadvertent failure to provide adequate medical care does not amount to deliberate indifference.”
Estelle v. Gamble, 429 U.S. 97, 105 (1976). Plaintiff’s bald allegations of denial of medical care
amount to little more than a disagreement with the judgment of his health care providers. Such

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disagreement with a course of treatment does not provide the framework for a federal civil rights
complaint. See Russell v. Sheffer, 528 F. 2d 318 (4th Cir. 1975). Defendants are entitled to
summary judgment in their favor.7
V. Conclusion
For the aforementioned reasons, Defendants Motion to Dismiss, or in the Alternative
Motion for Summary Judgment, construed as a Motion for Summary Judgment, shall be granted.
A separate Order follows.

February 10, 2017

___________/s/____________________
DEBORAH K. CHASANOW
United States District Judge

7

Having found no constitutional violation, the court need not address Defendants’ claims that they are
entitled to qualified immunity.

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