Barnes v. Bilak et al

Filing 34

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 10/11/2016. (c/m 10/11/2016 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JUAN BARNES

*

Plaintiff

*

v

*

KRISTA BILAK and
WEXFORD HEALTH INC.

Civil Action No. DKC-15-3579

*
*

Defendants
***
MEMORANDUM OPINION
Defendants in the above-entitled civil rights matter filed a Motion to Dismiss or for
Summary Judgment. ECF No. 20. Plaintiff filed a response in opposition (ECF No. 24) and
Defendants filed a reply (ECF No. 26).

Plaintiff then filed four papers in response to

Defendants’ reply. ECF Nos. 27, 28, 30 and 32. Defendants moved to strike each of Plaintiff’s
surreplies. ECF No. 29, 31 and 33. No hearing is necessary to resolve the matters pending
before the court.

See Local Rule 105.6 (D. Md. 2016).

For the reasons stated below,

Defendants’ motions shall be denied without prejudice.
Background
Plaintiff’s Claims
In his complaint (ECF No. 1) as supplemented (ECF Nos. 2, 6 and 7), Plaintiff Juan
Barnes alleges that he has been denied both pain medication for a chronic pain condition in his
hip and leg and treatment for a broken finger.1 Barnes states that on October 7, 2015, he
requested an increase of his pain medication, Tramadol (100 mg), but received no response.
Barnes then filed two additional sick call slips on October 12 and 14, 2015, but again received no

1

papers.

Barnes appears to abandon the claim regarding the failure to address the injury to his finger in his later filed

response. He states that by October 22, 2015, the pain was so unbearable he asked his mother to
call on his behalf, but her attempt to speak with medical staff was denied. Barnes claims that he
signed a release in 2014 permitting medical staff to discuss his care with his mother. ECF No. 1
at pp. 1 – 2.
Barnes continued to request treatment for his pain with the assistance of correctional
officers, one of whom spoke with Krista Clark2 directly. Barnes states that, although Clark
assured Officer Self that she would look into why Barnes had not been seen, nothing occurred.
Barnes states that on October 26, 2015, he wrote a formal inmate complaint regarding his sick
call and asked Officer Ipcuss to call Clark about his pain. Barnes states that Clark said she
would see him that day, but he was not seen and he did not receive a response from another sick
call slip submitted on November 1, 2015. ECF No. 1 at p. 2.
Barnes states that on November 4, 2015, he broke his finger and informed Officer D.
Ellifritz about his injury. Ellifritz called the medical department on Barnes’ behalf and reported
back to Barnes that their advice was to put a warm compress on his finger and put in a sick call
slip. Barnes states that his finger, which he injured in a fall, was swollen and he could not move
it. He claims that Ellifritz told the medical staff with whom he spoke that it was “illegal” not to
examine Barnes, but they did not change their response and did not view the complaint as one
requiring emergent care. Barnes states that he put in a sick call slip for his finger and received
no response. ECF No. 1 at pp. 2 – 3.
Barnes states that on November 5, 2015, Krista Bilak took away all of his medication
prescribed for pain (Tramadol) and for psychiatric symptoms of auditory and visual
hallucinations (Risperidol).

Barnes states that on November 4, 2015, he also received an

2

It is unclear if “Krista Clark” is a different member of medical staff, or if Barnes mistakenly wrote “Clark”
instead of “Bilak.”

2

adjustment ticket for passing a magazine to another inmate, which he admits doing. When the
other inmate was found with the magazine, it was discovered that two medications, Tegretol and
Neurontin, were hidden inside of it. Barnes states that he does not take those medications, but
his prescriptions were revoked regardless. He claims that no effort was made to determine
whether the medication found in the magazine was something he had access to before his
prescriptions were summarily revoked and he attributes these actions to the fact that he is
African American. Barnes claims that there is also video evidence that proves he took his
medication in the pill line that day, making it impossible for him to give it to someone else. He
alleges that the other inmate, Jeremy Cochran, who was caught with the magazine did not have
his prescriptions revoked because he is White. ECF No. 1 at pp. 3 – 4.
Barnes claims, in the first supplemental complaint, that medical staff were still refusing
to see him as of November 18, 2015, even though they had been in the disciplinary segregation
unit, where he was housed, seeing other inmates all week.

Barnes further states that the

Adjustment Hearing Officer found him not guilty on the charge regarding the medication
because the pills in question were never confiscated and taken to a nurse for identification.
Barnes states that, notwithstanding that fact, Bilak took his medication, including Risperidol and
Prozac which he had been prescribed for treatment of his mental health issues. He states that the
termination of this medication adversely affected his mental state. Barnes further alleges that his
broken finger remained untreated as of November 18, 2015. ECF No. 2 at p. 1.
In another supplemental filing Barnes states that he still had not been seen by Krista
Bilak as of November 24, 2015. He states that several people have tried to tell Bilak that Barnes
did not pass his medication to anyone and claims Bilak could simply verify that fact by watching
the tier video footage from November 4, 2015, showing that he took his medication in the pill

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line. He maintains that Bilak’s sole motive for removing his health care plan and medication is
the fact that he is African American and states that correctional officers will verify that Barnes
did not engage in any wrong-doing. ECF No. 5 at pp. 1 – 2.
Barnes claims that he is the only inmate who is denied access to his medical record
despite his numerous requests. He states that the chronic pain, which stems from a healed
fracture in his leg, was only effectively treated with Tramadol. Barnes states that prior to
receiving Tramadol, he was prescribed Naproxen, Baclofen, Elavil, Mobic, Roboxen, Neurontin,
Tegratol, Tylenol, Aspirin, and Motrin, but none of it relieved his pain. He claims that when he
asked for his Tramadol dose to be increased, Bilak used the “fact I was caught with someone
else’s pills” to revoke the prescription. ECF No. 5 at p. 4. He asserts that he could have beaten
the charges against him, but he took responsibility for passing the magazine and maintains it had
nothing to do with his medications. Id.
Barnes claims in another supplemental paper that on November 22, 2015, he saw Bilak
walking on the tier with an officer who was escorting her to cell 15. He states that he banged on
his door and yelled, “why are you doing this to me?” Barnes claims that Bilak turned, looked at
him, laughed, and waved as she continued to walk past his cell. ECF No. 6 at p. 2.
Barnes states in another supplemental complaint that on December 2, 2015, he saw “a
spokesperson” for Bilak and claims Bilak was still ignoring him. He states this “Indian man”
ordered medication for him, but prescribed a 50 mg dose of Tramadol instead of the 100 mg dose
he had requested. The prescription was written for four weeks. ECF No. 7 at p. 1.
Barnes asserts that he should be receiving the treatment that has proven effective for
managing his pain, which was 100 mg of Tramadol. He further alleges that his complaint
regarding his finger remained unaddressed in December of 2015. ECF No. 7 at p. 2.

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Barnes alleges that Bilak and “several other Wexford providers” are aware of the pain he
suffers based on his hospital and jail medical records, yet they have taken no action in two years
to determine the source of his pain. He states that when he broke his femur bone a metal rod was
put into his leg and he later developed hip degeneration. The chronic pain he experiences dates
back to 2008. ECF No. 11 at p. 1.
Barnes again alleges that the prescription for 100 mg of Tramadol was unjustly stopped
after the November 4, 2015 incident despite the fact that his medication was not a part of that
incident. He further claims that he is being denied “all care” and the resulting pain is “interfering
with daily activities.” ECF No. 11 at p. 2.
On January 19, 2016, Barnes filed a complaint with prison staff, asserting that he was
seen by William Beeman but was not prescribed pain medication. His complaint received no
substantive response because it was written on the wrong form. ECF No. 15 at p. 2, see also
ECF No. 15-1. Barnes claims that this refusal to respond to his claim is retaliation for having
filed the instant case. Id. at p. 1.
Barnes seeks to amend his complaint to name William Beeman as a defendant in the
instant case. ECF No. 16. He claims that he was seen by Beeman on January 16, 2016, and was
told by Beeman he was prescribing something for chronic pain, but Barnes did not receive it.
ECF No. 16-1 at p. 1. He claims that he is denied access to his medical records and avers that
medical staff are hiding something from him. Barnes asserts that “for a long time” he “released
Wexford from their duties of having [him] see an orthopedic surgeon to diagnose [his]condition”
in exchange for a prescription for Tramadol. Id.

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Defendants’ Response
In an unverified medical record prepared by Krista Bilak,3 dated November 5, 2015,
Barnes’ prescriptions for Tramadol and Neurontin were discontinued after a shift report was
received indicating that Barnes was hoarding medications with an intent to distribute. ECF No.
20-2 at p. 2. Barnes was placed on Administrative Segregation Pending Adjustment (ASPA)
after it was discovered he had Buprenorphine4 in his cell. Id. A prescription for Naproxen was
provided in lieu of the Tramadol and Neurontin. Id.
Subsequent sick call slips from Barnes complaining of pain note that he is being provided
500 mg of Naproxen or contain the notation “see EPHR.” See ECF No. 20-2 at pp. 7 – 12.
There is no indication on these records that Barnes was seen in response to his complaints that
his pain was intolerable.
On November 8, 2015, Barnes was seen by Robert Claycomb, RN, regarding his request
to have his medication renewed. Claycomb notes that Barnes denied hoarding medications with
the intent to misuse them and indicated he needed something for pain. Claycomb noted that
Barnes was receiving Naproxen for pain. ECF No. 20-2 at p. 16. Medications listed on this
record include Prozac and Risperdal with start dates of October 13, 2015, and stop dates of
February 13, 2016.5 Id.
Barnes was again seen on November 27, 2015, by Ricki Moyer, RN. In discussing the
discontinuation of his medication, Moyer notes that Barnes “became argumentative” and stated

3

The dispositive motion filed by Defendants does not include a statement under oath from Bilak, nor are the
medical records submitted as exhibits verified. ECF No. 20.
4

Buprenorphine is used for treating moderate to severe pain. Buprenorphine is a narcotic analgesic. It works
by working in the brain and nervous system to decrease pain. See https://www.drugs.com.
5

These medications are also noted with the same start and stop dates on the record for November 27, 2015.
ECF No. 20-2 at p. 18.

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that the November 4, 2015 incident did not have anything to do with his pain medication.
Barnes then threatened to file a lawsuit and left the medical room. ECF No. 20-2 at p. 18.
On December 2, 2015, Barnes was seen by Dr. Ashraf for a complaint of testicular pain,
but during the visit Barnes stated he had no complaints regarding testicular pain; rather, he was
experiencing pain in his hip due to having metallic plates in the thigh. Barnes reported that he
was on Neurontin and Tramadol before, but it had expired. Ashraf advised that he could write a
90 day prescription for Neurontin and an eight week prescription for Tramadol, 50 mg. He
further explained that Tramadol is a narcotic drug and could not be provided for a longer period
of time in order to avoid drug addiction. It is noted that Barnes agreed with the plan of
treatment. ECF No. 20-2 at p. 20.
On December 9, 2015, Barnes refused to come out of his cell for Nurse Sick Call in
response to his request for Tramadol to be increased. ECF No. 20-2 at p. 22.
On January 7, 2016, Barnes was seen again by Dr. Mahboob Ashraf for complaints of
right hip pain with radiation and numbness. Barnes described the pain as aching with numbness
and that it was constant. ECF No. 20-2 at p. 23. Ashraf prescribed Gabapentin (Neurontin), 400
mg, for 90 days. Id. at p. 14.
On January 16, 2016, Barnes was seen by William Beeman in response to his request for
Tramadol. ECF No. 20-2 at p. 27. Barnes reported his pain as a “10 out of 10.” Id. Beeman
notes that Barnes “states that he is able to go up and down stairs, complete errands around the
prison, complete cooking activities, able to dress himself can squat and kneel to perform ADL’s6
stand from a seated position, performs all ADL activities without difficulty.” Id. Beeman noted
that Barnes was already on medication for pain (Naproxen) and that “according to alerts”
Tramadol and Neurontin are not to be ordered for Barnes. Id.
6

“Activities of Daily Living”

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Standard of Review
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. Goldsboro, 178 F.3d 231, 243 (4th Cir.
1999). The Supreme Court recently articulated the proper framework for analysis:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain
statement of the claim showing that the pleader is entitled to relief,” in order to
“give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (abrogated on other
grounds). While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, ibid.; Sanjuan v. American Board of
Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994), a plaintiff’s
obligation to provide the “grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286 (1986)
(on a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation”). Factual allegations must be
enough to raise a right to relief above the speculative level, see 5 C. Wright &
A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)
(hereinafter Wright & Miller) (“[T]he pleading must contain something more .
. . than . . . a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action”), on the assumption that all the allegations in the
complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 508, n.1 (2002); Neitzke v. Williams, 490 U.S. 319,
327(1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a
judge's disbelief of a complaint's factual allegations”); Scheuer v. Rhodes, 416
U.S. 232, 236 (1974) (a well-pleaded complaint may proceed even if it appears
“that a recovery is very remote and unlikely”).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnotes omitted).
This standard 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. Id. at 1968-69.
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 1969. The court need not, however,
accept unsupported legal allegations, see Revene v. Charles Cty Comm'rs, 882 F.2d 870, 873 (4th
Cir. 1989), legal conclusions couched as factual allegations, see Papasan v. Allain, 478 U.S. 265,

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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).
A motion for summary judgment will be granted only if there exists 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(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of showing that there is
no genuine issue as to any material fact. However, 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 the burden of proof. Celotex, 477 U.S. at 322-23. 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.
Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil
Procedure when there is no genuine issue as to any material fact, and the moving party is plainly
entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., 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.” 477 U.S. at 249 (1986).
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 fairminded jury could return a verdict for the [nonmoving party] on the evidence presented.” Id. at
252. In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn

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therefrom “in a light most favorable to the party opposing the motion.” Matsushita Elec. Indus.
Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)); see also E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th
Cir. 2005). The mere existence of a “scintilla” of evidence in support of the non-moving party’s
case is not sufficient to preclude an order granting summary judgment. See Anderson, 477 U.S.
at 252.
This court has previously held that a “party cannot create a genuine dispute of material
fact through mere speculation or compilation of inferences.” Shin v. Shalala, 166 F. Supp. 2d
373, 375 (D. Md. 2001) (citation omitted). Indeed, this court has an affirmative obligation to
prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999
F.2d 774, 778-79 (4th Cir. 1993) (quoting Felty v. Graves-Humpreys Co., 818 F.2d 1126, 1128
(4th Cir. 1987)).
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). “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

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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.
The subjective component requires “subjective recklessness” in the face of the serious
medical condition. See 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 who lacked knowledge of a risk cannot be said to have inflicted punishment.’”
Brice v. Va. Beach Corr. 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).

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Barnes claims that his chronic pain condition has been acknowledged by medical staff
since 2008. Defendants do not appear to dispute the existence of Barnes’ chronic pain condition,
nor have they submitted admissible evidence supporting a finding that Barnes does not suffer
from an objectively serious medical condition, i.e., one that induces pain. For purposes of the
pending dispositive motion, the court will presume that Barnes’ condition is objectively serious.
In his opposition response, which is verified, Barnes asserts that his prescription for
Tramadol was removed for improper motives and that the unverified medical records submitted
by Defendants do not establish that he was ever seen by medical staff for his complaints. ECF
No. 24. Barnes further notes that Defendants do not dispute that his prescription was reinstated
by Dr. Ashraf and maintains this was done as a result of his attorney’s contact with Director
Janice Gilmore. Id. at pp. 1 – 2. Barnes also submits a copy of the Notice of Infraction he
received on November 4, 2015, which states as follows:
On November 4, 2015, I, Officer D. Ellifritz was assigned to Housing Unit #2
C-Wing. At approximately 6:25PM, while observing evening medication
lines, Cell 2-C-9 opened and inmate Juan Barnes #409-797 exited the cell.
Inmate Barnes was carrying with him a magazine and attempted to pass the
magazine to cell 2-C-31 which houses Inmate Willie Bryant #265-301 who is a
segregation inmate. I directed Inmate Barnes to the medication line and
informed him that he could not pass anything to cell 2-C-31. I then checked
the magazine and found it to contain eight pills wrapped in tissue paper. The
pills were identified as six Tegretol and two Neurontin and taken to operations
for disposition. An MSP-67 (Chain of Custody) was completed and the pills
were secured in the NBCI Evidence Dropbox. Inmate Juan Barnes was
positively identified by his DPSCS Identification Card.
ECF No. 24-5. The Notice of Infraction differs greatly from Defendants’ assertion that Barnes
was hoarding opiate medication in his cell; the asserted basis for Bilak’s discontinuation of the
Tramadol prescription. ECF No. 20-2 at p. 2.
In reply, Defendants assert that the details regarding the rule violation are immaterial
given Barnes’ admission to illegally possessing unauthorized medication. ECF No. 26 at p. 2.
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Defendants mischaracterize the nature of Barnes’ “admission” in both the motion to dismiss and
the reply. Barnes’ only admission in the papers filed in this court is that he improperly passed a
magazine from one inmate to another. He has not admitted to knowingly passing medication to
another inmate in any of the papers filed.
Defendants further assert that Barnes’ medication was reinstated by Dr. Ashraf on the
assumption that the prescription had simply expired because that is what Barnes told him. When
it was discovered that there was a “report from nursing staff” noting that Barnes was misusing
Neurontin and Tramadol, the prescription was discontinued again by Dr. Ashraf. ECF No. 26-1
at p. 2. Defendants do not support this assertion with verified records or an affidavit from Dr.
Ashraf or Krista Bilak.
In the absence of any verified records or sworn statements disputing Barnes’ claims that
his pain medication was discontinued for reasons unrelated to the November 4, 2015 incident,
Defendants are not entitled to summary judgment in their favor. Moreover, the complaint
allegations state a colorable claim for relief, making dismissal under Fed. R. Civ. Proc. 12(b)(6)
inappropriate. Barnes’ claims that Bilak was informed that the infraction did not involve his
medication; that Bilak discontinued his prescription because of her bias against him and insured
that discontinuation remained in place in retaliation for the instant lawsuit; and that Bilak knew
or should have known that discontinuing Tramadol and Neurontin for Barnes would result in an
increased amount of pain, have not been adequately addressed by Defendants.
Barnes’ only claim against William Beeman is that he was seen by him on one occasion
and was told he would be prescribed medication, but was not. ECF No. 16. The allegation as to
Beeman does not state a colorable claim under 42 U.S.C. §1983. Leave to amend shall be denied
as to the claim against Beeman. See Fed.R. Civ. P. 15(a)(2).

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Defendants’ motion to dismiss or for summary judgment shall be denied without
prejudice. The pending motions to strike shall also be denied and Defendants shall be directed to
respond to Barnes’ papers filed as surreplies in any renewed dispositive motion which shall be
due within 28 days of the date of the Order which follows.

October 11, 2016
Date

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

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