Mickey III v. Wexford (Staff at MCI-H) et al

Filing 17

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/22/2017. (kns, Deputy Clerk)(c/m 3/22/17)

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IN TilE UNITED STATES DISTRICT COURT
FOR TIlE ()JSTIUCT OF MARYLAND Southern Division

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EUGENE MICKEY III, #3038555, #.•17152

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Plaintiff,
Case No.: G.H1-15-3876

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WEXFORD

(STAFF at MCHI), el 111.,1

Defendants.

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MEMORANDUM
Eugene Mickey III ("Plaintiff')

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OJ'INION

is an inmatc incarccratcd at the Maryland Correctional

Institution in Hagerstown. Maryland ("MCIH"). Pcnding before the Court is his pro se
Complaint filed pursuant to 42 U.S.c. ~1983. alleging that Defcndants provided him with
inadequate post-surgical wound care. ECF No. I ("Complaint''). Defendants We:d,mlilealth
Sources. Inc" Lori Slavick. P.A .. and Richard Sam pong. P.A .. by their counsel. have filed a
Motion to Dismiss or. in the Alternative. Motion lor Summary Judgment. ECF No.9. and
PlaintilTliled a Response in opposition. ECF No. 13. Delcndants filed a Reply to Plaintiirs
Response. ECF No. 15.
Alter considering the pleadings and exhibits. the Court concludes a hearing is
unnecessary. See Loc. R. 105.6 (D. Md. 2016). For the reasons that 1()1I0\\'.Defendants' Motion
to Dismiss or. in the Alternative. Motion for Summary Judgmcnt. ECF NO.9 shall bc granted.

I Defendant is assumed 10 be Wexford Ilcalti, Sources. Inc .. a private corporation \\hich provides Illcdicnl care to
inmates under contract with the State of Maryland.
The Clerk shall amend the docket accordingly.
A second
Defendant's
surnallle is Slavick. The Clerk shall alllend the docket accordingly.

The claims against Wexford will bc dismisscd and summary judgment
against Defendants

I.

is grantcd as to claims

Slavick and Sam pong.

BACKGROUND
On Deccmber

16.2015. Plaintiff filed a Complaint alleging that Defendants'

provided

inadequate wound care alier his surgery to repair a torn Achilles tendon. ECF No. I. Plaintiff
sceks an unspccificd amount of monetary damages for his pain and suffering. Ecr No. I at 3.2
PlaintilT states that he ruptured his Achilles tendon in February of 20 15. Ill. On .June 1I.
2015. he had surgery to repair the rupture at Bon Secours Ilospitai. Id Plaintiff claims that he
tested positive f(Jr E Coli and pseudomonas

as a result of improper medical trcatmcnt. lei.

Plainti 1'1'
asserts that the surgeon sent a progress note on August 21. 2015. to inl(JrIn Dcfendants
"what to do:' but it was disregarded.

IJ. Plaintiff docs not provide a copy of that progress notc or

specify what the surgeon recommended.
recommendcd

mcdications.

Druckman.

did not prcscribe

but Illils to indicate what mcdicines were recommended.

treatment amounted to malpmctice.
Defendants

He further allcges Delendants

and that his

IJ.

Illed 149 pages of Plainti

tr s medical

records and the declaration

of Dolph

M.D .. Acting Regional Medical Director at MCIII. in support of their dispositive

motion. Ecr No. 9.4: ECF No. 9.5. Defendants'

verified exhibits detail the post.surgical

treatment provided to Plainti fC and the records are summarized

wound

below.

Alier his .Junc 11. 2015 surgery at Bon Secours Ilospitai. Plainti ITwas admitted to the
infirmary at .Jessup Correctional
tmnslcrred

Institution. ECF No. 9.5'i 6: ECF No. 9.4 at 9. Plaintiff was

to the MCIH infirmary on.June 13.2015. and was secn by Belay Tessema. M.D. ECr

No. <).5'i 6: lOCI"No. <).4at 12.15. The medical rcport indicatcs PlaintitThad

Pin cites to documents tiled on the
by that systelll.

.::!

COlll1"s

no Icvel".no

electronic filing system (CM/ECF) refer to the page numbers generated

2

swelling at the wound site. no discharge. no bleeding. and no erythema. ECF No. 9-5 '16: ECF
No. 9-4 at 12. Dr. Tessema indicated the injury and surgical site wcrc healing and stablc. and
prescribed Robaxin. Acetomenophin-codeine.

Percocct. Ketlex. and Ibuprofen for Plaintiff. ECF

No. 9-5 ~ 6: ECF No. 9-4 at 13. Dr. Tessema also ordered daily wound cleaning with normal
saline solution and dry dressing changes. ECF No. 9-4 at 13. Ketlex. an antibiotic. was
prescribed prophylactically

as PlaintitThad

no symptoms ofinfcction

at thc wound sitc. ECF

9-5 ~ 6. On June 13.2015. Tamara Medina. R.N. changcd Plaintiffs

'0.

dressings. and noted no

symptoms of infection. ECF No. 9-4 at 15.
Plainti ITrcmained in the inlirmary until June 16. 2015. ECF No. 9-5 ~ 7. Medical
providers monitored his vital signs and changed his dressings. ECF No. 9-5
16-20. On Junc 16. 2015. Liberatus DeRosa. M.D. examincd
was continuing

No. 9-4 at

wound. observed that it

to improve. and noted no symptoms of infection. ECF No. 9.5 ~ 7: ECF No. 9-4

at 21-24. Dr. DeRosa continued
Plaintiff-s complaints
discharged

Plaintiffs

'i 7: ECF

Plaintiffs

of continuing

Percocet prescription

until June 22. 2015. to address

pain. ECF No. 9-5 ~ 7: ECF No. 9-4 at 24. Dr. DeRosa

PlaintilT Irom the infirmary with instructions

to return in three days fix a follow-up

visit. ECF No. 9-5 ~ 7: ECF No. 9-4 at 24. Dr. DeRosa also ordcred daily cleaning of the wound.
instructed PlaintilTto

perform toe pointing exercises. continued his medications.

and directed

him to minimize walking. ECF No. 9-5 ~ 7: ECF No. 9-4 at 24. Plaintiff was given crutches.
placed on "feed in status" so that his meals were delivercd to his cell. and instructed to wear a
splint on his right ankle. ECF No. 9-5

'1 7: ECF

No. 9.4 at 24. The Ketlex prescription

allowed to expire on Junc 17.2015. in view ofPlaintitrs

was

improved healing and in the absence of

any symptoms of infection. ECF No. 9-5 ~ 7: ECF No. 9-4 at 24. On June 17.2015. Plaintiff was
returned to the general prison population.

ECF No. 9-5 ~ 7: ECF No. 9-4 at 26.

,

.'

On June 24. 2015. when PlaintilTwas

seen by Matthew

10 out of a possible 10. ECF No. 9-4 at 31. He eomplained

Fairall. R.N .. he rated his pain as

that his medieation

1<1. Plaintiffs

and he was having a hard timc getting the drcssing changcd.

had expired on the previous day. June 23. 2015.1d.

prescriptions

medical provider

for a medication

cvaluation.

Pcrcocet and Baclofen

Fairall referred Plaintiff to a

ordcred Tylenol flJr pain. and infi.JrIncd him that

Id. PlainlilTwas

daily wound care had been scheduled.

had becn stopped

listed as a "no show" for his nursing sick

call visit on July 7. 2015. Id. at 33.
On July 8. 2015. Jonathan

Thompson.

M.D. saw Plainti 1'1' an urgcnt providcr visit.
flJr

Mickcy reported that his right loot hyperextendcd

while he was trying to climb stairs to thc

and he fell and hurt his lower baek. ECF No. 9-5

dispensary.

'18:

ECr No. 9-4 at 34. He reported

that he slipped on water. ECr No. 9-4 at 36. Jessica Smith. R.N reported Plaintiffs
aee bandages

were soaking wet. and the dressing was changcd.

36. Smith observed

ECF No. 9-5 ~ 8: ECr No. 9-4 at

+2 pitting edcma at the right foot. but observed

8: ECr No. 9-4 at 36. Dr. Thompson
right knec. ECF No. 9-5
with his medications

'1 8:

ordered x-rays of Plaintifrs

no infection.

ECF No. 9-5 ~

lower spine. right ankle. and

ECl' No. 9-4 at 34. 36. Plaintiff was placed on bed rcst and feed-in.

to bc delivered

to his eell. and was prescribed

Tramadol

HcL for pain. ECF No. 9-4 at 34. The daily dressings

instructed

to continue

Id. at 34. 36. Dr. Thompson

using crutches.

three weeks with Dr. Krishnaswammy.
cell using his crutches.

dressing and

an orthopedic

ECF No. 9-5 ~ 8: Ecr

On July 10.2015. Defendant

surgeon.!d

325 mg. of Tylenol and

were continued

and PlaintifTwas

ordered a follow-up

visit in

at 34. PlaintifTrcturncd

to his

No. 9-4 at 34-37.

Lori Slavick saw PlaintilT during provider rounds. Plaintiff

repOlted feeling better. ECl' No. 9-4 at 38-39. The results of his x-rays were still pending.1d.
PlaintifTasked

to go to the commissary.

but was informed

4

that because he was on feed-in status

he could not go. /d He was inli.lI'Ined that his safety was at risk as demonstratcd
days prior./d

Latcr that day. Matthew

for schedulcd

wound care. PlaintilTcomplained

40-41. Plainti!rs

temperature

I'airall. R.N. cxamined

/d PlainlitTwas

was 100.8 and his pulse was 110.

administered

thc prison dispensary

of aches. chills. a headache.

and dizziness.

/d at

Id. Fairall contacted Dr. Nimely

400 mg of Motrin and medical tests were

for further orders. III. Plaintiff was administered
ordered.

PlaintilTat

by his fall two

the lirst dose of Motrin at the dispensary

and. alier one

hour. his fever reduced 10 99.2 and his pulse reduced to 98.9. III. Plaintiff was told to fi.)lIow up
in the morning.

and returned to his housing unit in stable condition.

On July II. 2015. Dr. Tessema
leg. swelling.
Plaintiff's

examined

PlaintilI

who complained

wound had opened. and it was tender and swollen.
cellulitis.

No. 9-4 at 42-43. He prescribed
and ordered Plaintirfbe

Baclofen.

admitted

ECF No. 9-5'i 9: ECl' No. 9-4 al

an infection. at the wound site. Ecr
Clindamycin

to the inlirmary

I leI. Rocephin.

9-4 at 42-43. lie also ordercd a comprehensive
No. 9-4 at 42-43. While in the infirmary.

leg pain. ECl' No. 9-4 at 44-5 f. Ilis temperature
intravenously.

ECl' No. 9-4 at 45-46. Sampong

Ausherman.

Tramadol

and Potassium

Chloride.

blood laboratory
PlaintilTrepol1ed
measured

ECl' No. 9-5 ~ 9: ECl' No.

test panel. ECF No. 9-5'i 9:
lecling dizzy. slight chills and

100.9. and he was administered

It/. at 44.

On July 12. 2015. Defendant

Plaintiffs

No. 9-5 ~ 9: ECr

with bed rest and daily dressing changes using

sterile saline solution and a clean dry dressing ("wet dry dressing").

antibiotics

of pain in his right

and fever. ECF No. 9-5 ~ 9: ECF No. 9-4 at 42-43. Dr. Tessema observed that

42-43. Dr. Tessema diagnosed

Ecr

III.

recorded

and Rocephin

R.N. saw Plaintiff

Sam pong saw PlaintifT during infirmary rounds at I :31 p.m.
Plaintiffs

prescriptions.

wound stalus as stable and continued

III. That evening at 5:48 p.m .. Laura

Ii.)rskilled nursing care. /d at 47. Plainti ITcomplained

5

of pain

from his ankle to his calC and Ausherman
administer

Tylenol #3. Id. Ausherman

approximately
separated.
alll:46

contacted

observed

Dr. Ottey. who gave a verbal order to

Plaintiffs

wound had a necrotie area

1.5 inches long and 0.5 inehes wide. Jd Several inches of the suture line wcre

approximately
p.m .. Plaintiffs

2mm of the length of the wound. and were pink and draining.

Jd Later.

dressing was changed again because it was dripping onto the bedding.

Jd at 48.
On July

J

3.2015.

Cynthia Martin. R.N. saw Plaintiff for skilled nursing care. ECF No.

4 at 49. She reported that PlaintilTs
intact when it was changed.
minimum

swelling.

appetite was good. that his dressing was clean. dry. and

and that he was able to wiggle all his loes. Jd Martin noted

no pitting. and no redness. Id. Dr. DeRosa. who saw PlaintilTiater

day. reported that the infection was improving

DeRosa wrote that Plaintiff"had

and PlaintilThad

Jd There was wound dehiscence

DeRosa prescribed
indicated

no fever. but noted PlaintilTwas

a short visit in infirmary and was discharged

up] and during that time infection seemed to develop:'

with tfull(lllow-

Id. at 50. DcRosa said the tendon repair

and PlaintilThad

Jd at 50-51. There was discoloration

surgical debridement.

that same

of his right ankle and was unable to tlex his l(lOt. Jd at 50-51.

in severe pain with any movement

was abnormal.

<)-

a deep space infcction needing

around the entire incision. Jd

Lovenoz and "wet dry" dressing changes twice daily. Id. at 5 J. DeRosa

no culture reports were noted on the medical chart to confirm the accuracy of the

antibiotics

administered.

Plaintiff-s

condition

and he ordered lab studies. Id. at 50. DeRosa listed his assessment

as "uncontrolled

On July 14.2015.

leg:' Id. at 51.

cellulitis/absccss

Laura Ashennan.

R.N. noted Plaintiffs

hi. at 52. She noted serosanguinous

drainage

reported Plaintiffs

was not measurably

wound inlection

of

wound culture was completed.

Irom the wound. Jd Later thaI day. Dr. DeRosa

6

improved.

but was not worsening.

Jd at

53. DeRosa discussed with Dr. Krishnaswammy that 20 cc of pus with slight pressurc was
expressed from the wound. Id. at 54. He noted Krishnaswammy wanted to sec Plaintiff because
he had worsened since his last follow up visit. !d at 55: ECF No. 9-5 ~ 9. Plaintifrs blood tcst
results wcre returned and revealed infection with E. Coli and pseudomonas bacteria. ECF No. 94 at 58.61: ECF No. 9-5 ~ 9.
On July 15.2015. Dr. DeRosa noted Plaintiff was running a low grade tempcrature. ECF
No. 9-4 at57. Plaintifrs calfhad slight induration suggcsting spread of infection and resistancc
to the medications Rocephin and Clindamycin. but the wound had shown some improvemcnt in
thc past 2 days. Id. DeRosa expressed concern that although PlaintifTwas scheduled to bc seen
by Dr. Krishnaswammy on Friday. he might need to be seen sooner. and therefore asked the
medical director to examine Plaintiff. Id. DeRosa changcd Plaintiffs antibiotic to Vancomycin
He\. Id. at 58.
On July 16.2015. Defcndant Sampong examined PlaintitT.1d. at 62. He reported the
wound was improving and recommended warm compresses. Id
On Friday . .Iuly 17.2015. Defendant Lori Slavick examined Plaintiff. Id. at 64-65. She
noted that Plaintiff had pain and swelling in his right calf. Id. at 64. I.ater that day. Plaintiff
expressed concern to Nurse Aushernmn that the intravenous site should be changed and initially
refused his antibiotic medication. Id at 66. Ausherman explained that she could not start a new
intravenous site without a medical order. Id Plainti ff changed his mind and the antibiotic was
administered. Id. Plaintiff rated his pain as 10 out of 10 and said he ambulated with crutches. Id.
As noted. Dr. DeRosa's July 15.2015 note had anticipated that PlaintifTwould be seen by Dr.
Krishnaswammy that day. a Friday. Id at 57. The record docs not reflect whether Plaintiff was
seen that day by Dr. Krishnaswummy.

7

On July 18.2015.
continuing

Dr. Tessema

pain and swelling.

examined

It!. at 67-68. Tessema noted Plaintiffs

Plaintiff.

and a yellow and white discharge

from the wound site. Id. at 67.

Nurse Cynthia Martin saw Plainti 11'for skilled nursing earc. Id. at 69. Plainti tT was administered
a Vancomycin

test to monitor levels of the antimicrobial

drug in the blood.

It!.; lOCI"No. 9-3 at

11 n.23. Martin recorded that Tessema was aware of the results and indicated the Vancomycin
would be adjusted.

lOCI"No. 9-4 at 69.

On July 19. 2015. Malthew Carpenter.
reported that PlaintitTwas
irregularly-shaped.
throughout.

awaiting a PICC

5.4 cm ulceration

changed

line. Id. Carpenter

Plainti tT. It!. at 70-71. Carpenter
obscrved

the wound was an

with red. yellow. and pink hard exudate scaltered

It!. The wound was surrounded

9-3 at 11 n.24. TPP is a rare blood disorder
throughout

3

P.A .. examined

by a mild thrombocy1openic

purpura (TPP). lOCI"No.

in which blood clots limn in small blood vessels

the body. and can limit the now of blood to the body's organs. Id. Nurse Martin

Plaintiffs

dressing that evening. and noted a purulcnt yellowish

brown drainage.

ECF

No. 9-4 at 72. Plainti ff rated his pain as 7 out of 10. Id. The results of Plainti ff s wound culture
were listed as still pending.

Iti. at 70-72.

On July 20. 2015. Nurse Martin reported that PlaintilT had no lever. changed his dressing.
and continued

his antibiotics.

Id. at 73. Martin noted a telemedicine

for I :00 p.m. (1300 Ill'S.) to discuss Plaintiffs
Dr. DeRosa examined
Cipro. an antibiotic.

wound evaluation

Plaintiff during intirmary

conlerence

and treatment.

rounds. and observed

was scheduled
Id. That cvening.

that Plainti ff had started

on the previous day. Iti. at 74. Dr. DeRosa saw increased wound drainage

and some improvement

in the gastrocnemius

Cipro. Id. The culture report indicated

muscle. a muscle in the calt: possibly due to the

10 coli and pseudomonas.

both of which are sensitive to

A PIce Iinc is a percutaneously inserted central cath~tcr. A Pice is used when the patient needs intravenous (IV)
medical treatment over a long period of time or if blood draws done using the morc cOlllmon mcthod have become
di flicult. See https://mcdl ineplus.gov/cncy/patienlinstruct
ionsIO00461.htlll.
J

8

Cipro. Jd. Dr. DeRosa reported that Dr. Atnfu "did telemed at 1 pm and picuture [sic J takcn of
wound so hc could communicatc with DR (sic) Krishnaswammy. Apparcntly pt is to go to 13SII
[Bon Secours Hospital] fl)r surgical dcbridcmcnt since tendon infection can bc bad due to poor
blood supple [sic!."' Jd. DeRosa indicated that therc may be difficulty transporting Plaintiffat that
timc. but the schcdulcr would try to arrangc for custody stan'to transfer Plaintiff to the 13SII
early in the morning. Id.: ECr No. 9-3 at 12 nn.25 & 26.
On .Iuly 21. 2015. Plainti ITwas transported to Bon Sccours Hospital fiJI" surgical
dcbridcmcnt ofthc wound. ECF No. 9-5'i 12. Dr. Druckman attcsts thc procedurc was indicated
duc to risks inherent in a tendon infection due to low blood supply to the tendons. Id. Plaintiff
returned to the MCIH infirmary thc samc day. ECr No. 9-4 at 75-77. Kathlecn McCauley. RN
providcd skilled nursing care to PlaintifTupon his return. Id. McCauley indicatcd the anticipated
plCC linc was not insertcd but that Plaintifrs wound was dcbridcd and the suturcs were
rcmovcd.ld.

Thc dressing on Plaintitrs

right anklc was dry and intact. Id.

On July 22. 2015. Dr. DeRosa examincd PlaintifTin thc infirmary. Jd. at 78-79. DcRosa
noted that thc ccnter tissue of Plaintiffs wound was removed, and that thcrc was no redness or
wannth around the lesion. Jd. at 78. He observed that the wound was draining a lot of
serosanguinous. but no pus. 1<1.
On July 23. 20 IS, Nursc Cynthia Martin drcsscd the wound. noting a moderatc amount of
serosanguinous drainage, a decrease in rcdncss and swclling, and no odor. Jd. at 80. Plaintiff
rated his pain level at 8 out of 10. Id. Dcfcndant Sam pong cxamined Plaintiff during infirmary
rounds. Id. at 81-82. Sam pong notcd thc wound was unchangcd and indicatcd that Plaintiff
would bcgin topical oxygen thcrapy ("'TOr') that day. Id. at 81. Haydce Rawley. R.N. later
changed Plaintiffs drcssing and applicd TOT. Id. at 83. Rawley rcported PlaintilTtolerated TOT

9

well. Id.
On July 24. 2015. Nurse Ausherman observed serosanguinous drainage on Plaintiffs
dressing with some bloody drainage on the foot outside the dressing. Jd. at 84. There was no
odor. Jd. Plaintiffs ankle was edematous and erythematous above the dressing. Jd. She applied
TOT. Jd. Ausherman described the site as a beefy red wound that included a thick yellow
mucous plug. Jd.
On July 25. 2015. Dr. Tessema observed the wound site was healing and there was less
swelling. Id. at 86.
On July 27. 2015. Dr. DeRosa noted that Plaintiffs calfhad improved but was still
painlul. Id. at 88. The wound was healing and tilling in. but Plaintiff was concerned because
oxygen therapy was not provided over the weekend. Jd. DeRosa explained that the therapy had
been ordered only lor weekdays. and they were out or oxygen that day. Id. Moving Plaintiff back
to the general prison population lor wound care was delayed until the wound was checked and
possibly alier the liJllow-up visit with Dr. Krishmaswammy. Id. at 88-89.
On July 28. 2015. Dr. DeRosa examined Plaintiff who reported Ultram did not rclieve his
pain and requested Tylenol #3. Id. at 90. PlaintilTreported decreased hardness in the lower calf
and decreased pain. Jd. DeRosa observed Plaintiffs wound was improving and there were no
signs of infection. Id.
On July 29. 2015. Dr. DeRosa indicated drainage was observed when Plaintiffs
dressings were changed. Id. at 92. He continued Plaintiffs Lovenox (an anticoagulant)
prescription and oxygen therapy. Id.: ECr No. 9-3 at 4 n:9. Plaintiffs dressings were changed
twice a day. lOCI'No. 9-4 at 92.
On July 31. 2015. Dr. Thompson saw Plaintiff during infirmary rounds. Id. at 93-94. lie

10

noted that Plaintiff continucd
at

to receive oxygen therapy and that he did not complain

of pain. Id

93.
On August

I. 2015. Dr. Tessema

observed the wound was healing and the infection was

lei. at 95. Plaintiff prcscnted complaints

resolving.

It!. Tesscma changed thc antibiotic to Augmcntin.

wound.

On August 2. 2015 . .Ianine Grirtith.
98. PlaintifT complained
perli.mning

regimcn.

and pink wound edgcs.
approximately
Sensation

Id at 95-96.

P.A. saw PlaintilTduring

infirmary

rounds.!d

of his anklc.

It!. Ilis pain at the time was well controllcd on thc

It!. Grirtith observcd the wound as pink/red with becfy granulation

It!. There was a small central area of dead tissuc (cschar) of

I cm x 1.5.diameter

and a small amount of discharge

from the wound.

was intact to sharp and dull touch and no pus or bleeding was observed.

On August 3. 2015. Defendan\

Slavick noted his pain was moderatc
On August 4. 2015. Plaintiff
pseudomonas

Slavick examined

PlaintilI

and Klcbsiella

attests that during collegial

It!.

!d at 97-98.

noting that his oxygcn thcrapy

It!. at 99-100. Plaintiff exprcssed no ncw complaints.

was continuing.

It!. at 99. Defcndant

and his status was stable. !d
s laboratory

culture results showed the presence of

strains of bacterial infection.
discussion

was possibly due to fecal contamination.

in utilization

ECF No. 9-5 ~ 10. Dr. Druckman

management

it was presumcd

Id E Coli. pseudomonas.

the infection

and Klebseilla

bactcria arc

bacteria in the body in low amounts and may bc found in divcrse cnvironmcnts.

Patients with opcn wounds.

illness. or reduced rcsistance

bactcria although

healthy individuals

otherwise

strains of pseudomonas

at 97-

about the tightness of his Achillcs tendon. Id at 97. Plainti ITwas

simple strctching

current medication

common

of pain and his leg was swollcn ncar thc

and klebsiella

It!.

are at greater risk of infection by thcse

can also become infectcd. Id Becausc certain

are becoming

antibiotic

II

rcsistant. carcfulmonitoring

of

treatment results is important to determine whether alternate antibiotic medications should be
selected. Id. Druckman explains that during the course or his inlirmary admission. Plaintirfs
antibiotics were adjusted to optimizc results. Id. at ~ 11: ECF No. 9-4 at 102.
Dr. DeRosa diseharged Plaintirf Irom the MCIII inlirmary on August 5. 2015. ECT No.
9-4 at 103. DeRosa summarized Plaintiffs wound history. including the asscssment that after
surgery and a brier initial stay in the inlirmary. Plaintirr was dischargcd on June 16. 2015 to the
general population with instructions Ill[ daily wound care. which PlaintitT may have missed. Id.
DeRosa further asserted that Plaintiff had developed a superlicial incision dehisccnce and
presumably contamination led to an abscess under the Achillcs tendon repair. Id. DeRosa also
noted that the wound was healing and oxygen therapy had been applied. Id. DeRosa ordered this
treatment to continue until Plaintiff was seen by Dr. Krishnaswammy. Id. at 103-05. DeRosa
continued PlaintilTs daily wound care and Lovenox until he saw Dr. Krishnaswammy and was
able to walk with lilll weight-bearing. Id. DeRosa ordered that an appointmcnt with Dr.
Krishnaswammy be scheduled for PlaintilI ItI.
On August 18.2015. Defendant Slavik saw Plaintiff: who complained of pain in his right
leg. Id. at 106. Plaintiff asked to be taken ofT reed-in status. against medical advice. ItI. Slavik
assessed his condition as stable. /d..
On August 24. 2015. PlaintilT returned from 130nSecours Ilospital alier his !l)llow-up
visit with Dr. Krishnaswammy. ItI. at 115. Erica Alexis. LPN wrote on Plaintiffs medical chart
that his wound was cleaned with sterile solution and a non-adhcrent drcssing was applied. there
was serous drainage without a bad odor. and there was no swelling. Id. PlaintilT did not have a
revcr and he rcturned to his housing unit using crutches. Id.
On August 28. 2015. Defendant Slavick saw PlaintifTto 101l0\v-upwith Dr.

12

Krishnaswanuny's

recommendations. including daily dressing changes. use of an ankle hrace

and crutches. and a continuing regimen of antibiotic and pain medication. /d. at 119-20.
Krishnaswammy also recommended gentle rangc of motion (ROM) exercises. but no physical
therapy until the wound healed. /d.
On August 31. 2015. DeRosa saw Plaintiff. DeRosa obscrved the wound was essentially
closed and discontinued furthcr oxygen thcrapy. /d. at 122.
On Septembcr 14. 2015. Erica Alexis. LPN cleaned Plaintifrs wound and applied a new
dressing. /d. at 123. She noted mild swclling around thc wound area and Plaintiff complaincd of
sorcncss. /d. She referred him to a mcdical provider lilr cvaluation. /d. Whcn Alexis saw Plaintiff
on Scptember 15.2015. she noted that Plaintiff walked into thc medical room with a slight limp
and without his crutches. 1<1. at 124.
On Septcmber 17. 2015. Defendant Sampong evaluated Plaintifrs wound./d. at 125.
Sampong's assessment was that the wound was healing well. 1<1. Plaintiffrcportcd

a mild

discharge from thc aflected area. 1<1.
On Septcmber 23.2015. a tclcmcdical conlercnce was conducted during which Dr.
Krishnaswammy rccommended continuing daily drcssings. use of crutchcs and an anklc brace.
pain and antibiotic mcdication. and a filllow-up appointmcnt in three wceks. Krishnaswammy
said Plaintiff could pcrform gcntle ROM excrcises. but did not rccommcnd physical thcrapy./d.
at 126.
On Octobcr 4. 2015. I'laintiffwas

seen at the dispcnsary lilr wound carc. 1<1. at 131. It

was not cd that he had misscd his last 3 appointments. Jd PlaintilTwas remindcd ofthc
importance of complying with recommendcd wound carc. 1<1. At this timc. he complained his
wound was painful. /d. Thc wound was thcn c1caned and the dressing was changed. Jd

13

On Octoher 6. 2015. Plaintiffs
telcmedicinc

conferencc.

attcndcd

wound care follow-up

hy Drs. Getachcw

was again discussed

wound dressing.

heginning

at 137-38. Sampong

physical thcrapy. and following

2. 2015. Sam pong examined

On November

indicatcd

continuing

daily

up in 5-6 weeks. Id at 132-33. 135.

Plaintiff for complaints

the wound had improved.

thc affcctcd area. but denied other symptoms.

Id. at 132-34. Thc

and Krishnaswammy.

wound was hcaling hut still painful. Id. at 132. Thc doctors rccommendcd

at a

of ankle soreness. Id

Plaintiff reported a mild discharge

from

Id at 137. Sampong referred Plaintiff to a providcr

f()r wound carc. Id at 138.

5. 2015. Dr. Tesscma examincd

On Deccmber
had resolvcd.

Plaintiff. Tesscma ohservcd

thc cellulitis

hut notcd Plaintiff had an opcn wound on his postcrior right anklc. Id. at 143.
or swclling and he had no fever. Id

There was no discharge

8. 2015. Plaintiff returned his crutches to thc mcdical officc. Id at 145. Ilc

On Dcccmber

walkcd out without cxpressing

any complaints.

Id

18. 2015. Sam pong saw Plaintiff I()f wound care. Id at 146-47. Plaintiff

On Dcccmber

rcp0l1ed that the wound was healing. Id at 146. Sampong ordered daily dressing changes until

Id

healing was complctc.

On January 21. 2016. Dr. Tessema examined
small hcaling wound on Mickcy's

Plaintiff~ Id. at 147-48. Tesscma

right anklc and prescribed

triplc antibiotic

ointment.

noted a

Id at

147.
On Fchruary

18. 2016. Sam pong examined

well. Id. at 149. Sampong
dressings

obscrved

Plaintiff and noted thc wound was healing

no signs of infection and directed Plaintiff to changc his

daily. Id.

In his affidavit.

Dr. Duckman

attests:

14

[n my opinion to a reasonable degree of medical probanility.
I'laintifT received appropriate treatment for his right Achilles
tendon repair wound and sunsequent infcction while Plaintiff was
at MCIII. Plaintiff does not state specifically what medical
instructions were allegedly disregarded by PA Sampong and 1'1\
Slavick. but there are olien alternative options that may
appropriately address a certain specific condition. In my opinion.
to a reasonanle degree of medical pronanility. the medical care
Plaintiff received from his medical providers at MCIlI. including
the care rendered by I'A Sampong and 1'1\ Slavick. was
appropriate for I'laintifrs condition. I'laintifTs surgical site
inlcetion was treated and it resolved. Plaintiff was returned to the
general prison population in stanle condition lor continued healing
at the surgical site. I'laintifThas continued to receive ongoing care
for his needs through the sick call process.
ECF No. 9-5
II.

'i

15.

STANI>ARI> OF REVIEW
To survive a motion to dismiss invoking 12(b)(6). "a complaint must contain sufficient

factual matter. accepted as true. to 'state a claim to relief that is plausinle on its face.... Ashcrofi
\". It/hal. 556 U.S. 662. 678 (2009) (citing Bell Atlanlic

Corp. \'. T\I"IllIIh~\'.550 U.S. 544. 570

(2007». "1\ claim has litcial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonablc inference that the defcndant is lianle I{)rthe misconduct alleged'"
It/hal. 556 U.S. at 678. "Threadbare recitals of the elements ofa cause of action. supported ny

mere conclusory statements. do not suffice'" Itl. (citing T\I"olllhly. 550 U.S. at 555) ("a plaintifCs
obligation to provide the 'grounds' of his 'entitlelmentj to relier requircs more than lancls and
conclusions. and a formulaic recitation of a cause of action' s elements will not do. ").
Fed. R. Civ.l'.

12(b)(6)'s purpose "is to test the sufficiency ofa complaint and not to

resolve contests surrounding the facts. the merits of a claim. or the applicability of dclcnses'"
Presley".

City oj'Charlo{tesl'ille.

464 F.3d 480. 483 (4th Cir. 2(06) (citation and internal

quotation marks omitted). When deciding a motion to dismiss under Rule 12(b)(6). a court "must

15

accept as true all of the factual allegations contained in the complaint:' and must "draw all
reasonable inferences [from those facts 1 in favor of the plaintiff:' E.I. JII
I'.

Kolonlndlls

1'0/1/

de Nell/ollrs & CO.

.. Inc .. 637 F.3d 435. 440 (4th Cir. 2011) (citations and internal quotation marks

omitted). The Court need not. however. accept unsupported legal allegations. see ReI'ene \'.
Charles Co lint)' COI/II//'rs. 882 F.2d 870. 873 (4th Cir. 1989). legal conclusions couched as
factual allegations. l'apa.\'lII11'. Allain. 478 U.S. 265. 286 (1986). or conclusory tactual
allegations devoid of any reference to actual events. United Black Fire/iRll1ers o/Nor/hlk

\'.

Hirst. 604 F.2d 844.847 (4th Cir. 1979). Because PlaintifTis sell~represented. his lilings arc
liberally construed. See Erickson

I'.

Pardlls. 55 J U.S. 89.94 (2007). But the Court must also

abide by its "aflirmative obligation ". to prevent factually unsuppol1ed claims and defenses trom
proceeding to trial:' BOllchat. 346 F.3d at 526 (internal citations omitted). The claims against
Wexford Health Resources. Inc. will be considered in the context of a Motion to Dismiss.
Defendant's motion is styled as a Motion to Dismiss. or in the Alternative. fiJr Summary
Judgment under Fed. R. Civ. P. 56. If the COlll1considers materials outside the pleadings, as the
Court does here regarding the claims against Defendants Slavick and Sam pong, the Court must
treat a motion to dismiss as one for summary judgment. Fed. R. Civ. P. 12(d). When the Court
treats a motion to dismiss as a motion for summary judgment. "[a]1I parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion:' !d. When the
moving party styles its motion as a "Motion to Dismiss. or in the Alternative. l(lr Summary
Judgment:' and attaches additional materials to its motion. the nonmoving party is. of course.
aware that materials outside the pleadings are be/(lre the Court. and the Court can treat the
motion as one for summary judgment. See LallRhlin

I'.

Metropoli/an

iVa,l'lI.Airports Alllh .. 149

F,3d 253. 260-61 (4th Cir. 1998). Further. the C01ll1is not prohibited fi'om granting a motion for

16

summary judgment before the commencement of discovery. See Fed. R. Civ. P. 56(a) (stating
that the court "shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material face without distinguishing pre-or post-discovery).
However. summary judgment should not be granted if the nonmoving party has not had
the opportunity to discover information that is essential to his opposition to the motion. Alldersoll
\'. Liher/y [.oMy. [11,..• 477 U.S. 242.250 n.5 (1987). If the nonmoving party feels that the motion
is premature. that party can invoke Fed. R. Civ. Pro. 56(d). See Celo/ex Corp. \'. Co/rel/.477
U.S. 317. 326 (1986). Under Rule 56(d). the Court may deny a motion for summary judgment if
the non-movant shows through an affidavit that. for specified reasons. he or she cannot properly
present facts. currently unavailable to him or her. that are essential to justify an opposition. Fed.
R. Civ. Pro. 56(d). '''[Tlhe lailure to file an aflidavit
e1aim that the opportunity for discovery was inadequate

is itselfsuflieient
[[arrod,. Ltd

grounds to reject a
1'.

Sixty [II/emI'l DOl/will

Names. 302 F.3d 214. 244 (4th Cir. 2002) (citations omitted). But a 1[lilure to file an aftidavit
may be excused "if the nonmoving party has adequately inflmned the district court that the
motion is premature and that more discovery is necessary" and the "nonmoving party's
objections before the district court served as the lill1ctiona! equivalent of an aflidavit:' !d at 24445 (citations and internal quotation marks omitted).
Delendants tiled 149 pages of Plainti ff s medical records and the deelaration of Dolph
Druckman. M.D .. Acting Regional Medical Director at MCIH. in support of their dispositive
motion. ECF No. 9-4: ECF No. 9-5. Plaintiff has not filed an affidavit under Rule 56(d) or made
an equivalent showing of the need for more discovery. Further. Plaintiff was provided with a
Rosehoro notice. which advised him of the pendency of the motion and that he was entitled to
respond. ECF No. 10: Rosehoro \'. Garrisoll. 528 F.2d 309. 310 (4th Cir. 1975) (holding pro se

17

plaintiffs should be advised of their right to tile responsive
judgment).

and in lilct did lile a Response.

Dismiss into a Motion lor Summary

material to a motion t()r summary

Thus. the Court will convert Delcndant"s

Judgment

with respect to Plaintiffs

Motion to

claims against Slavick

and Sam pong.

III.

DISCUSSION
Defendants

Wexford

seek dismissal

on the grounds that the Complaint

because there is no vicarious

summary judgment

because

liability (respondeat

Plaintiff has failed to demonstrate

Sam pong violated the Eighth Amendment
or injury'"

Eslelle

I',

to a "serious

O(Nell' York. 436 U.S. 65&. 691 (1978): LOI'('-Lane \",,\farlin. 355 rJd

superior.

oflicials "is not based on ordinary principles

but rather is premised on 'a recognition

of subordinates'

misconduct

lhey inflict on those committed
2001) (quoting Siakan

I',

(2) the supervisor's

illness

766. 782
of

indifference

factor in the constitutional

or tacit
injuries

228. 235 (4th Cir.

Porler. 737 r.2d 36&. 372 (4th Cir. 19&4)).

had actual or constructive

that posed a pervasive

may be a causative

that supervisory

to their care .... Baynard \",,l/alone. 268 rJd

To state a claim 1(lr supervisory
supervisor

indifference"

Slavick and

superior does not apply to ~ 1983 claims. Monell\". De/"I o(

(4th Cir. 2004). Liability ofsupcrvisory

authorization

that Defendants

~ 19&3 and

Liability

The doctrine of respondeat

respondeat

through "deliberate

under 42 U.S.c.

Gail/hie. 429 U.S. 97. 105 (1976).

A. Supervisory

SociaISen's.

superior)

fails to state a claim against

liability under ~ 1983. Plaintilfmust
knowledge

and unreasonable

response

risk of constitutional

to the knowledge

indi fterence to or tacit authorization

that his subordinate

18

was engaged in conduct

injury to citizens like the plaintiff:

was so inadequate

of the alleged offensive

allege thaI: (I) the

as to show deliberate

practices:

and (3) there was an

aftirmative causal link between the supervisor's inaction and the particular constitutional injury
sufICrcd by the plaintiff. /Ja)'lIard. 268 F.3d at 325: Shm,. \'. Slrol/d. 13 F.3d 791. 799 (4th Cir.
1994). A private corporation may be held liable under ~ 1983 "only when an official policy or
custom ofthc corporation causes thc alleged deprivation offedcral rights:' AllSlill \'. Pammol/1I1
Parks. IlIc .. 195 F.3d 715. 728 (1999): see a/so R(Jjas

I'.

A/exallder\

De,,'1 Slore. IlIc .. 924 F.2d

406.408-09 (4th Cir. 1990) (noting policy or custom liability cstablishcd by MOllell applicd to
privatc busincsses). The complaint does not attributc the allcgcd constitutional violations to an
official policy or custom of the corporate defendant. Consequently. the claims against Wexford
will be dismissed.
B. Post-Sur~ical

Wound Treatment

Defendants Sampong and Slavick assert they arc entitled to summary judgmcnt bccausc
Plaintiff fails to dcmonstratc an abridgmcnt of his right to constitutionally adcquatc mcdical
trcatment.
Thc Eighth Amcndmcnt prohibits cruel and unusual punishmcnt. U.S. CONST.amcnd.
VIII. A prison official violatcs thc Eighth Amendmcnt whcn the nfficial shows "delibcratc
indifkrcncc to scrious mcdicalnceds
.Jacksoll

I'.

Ughlse)'.

ofprisoncrs:'

Eslelle

I'.

(;amh/e. 429 U.S. at 104: see a/so

775 F.3d 170. 178 (4th Cir. 2014). A delibcratc indiffcrcncc elaim consists

of both an objectivc and a subjcctivc componcnt. .Jacksoll. 775 F.3d at 178. Objcctivcly. thc
inmatc's condition must bc "scrious:' or "onc that has bccn diagnoscd by a physician as
mandating treatmcnt or onc that is so obvious that cvcn a lay pcrson would casily rccognizc thc
necessity for a doctor's attcntion:' !d (quoting Iko \'. Shre\'e. 535 F.3d 225. 241 (4th Cir. 20(8».
Subjcctively. "[aln official is dclibcratcly indiffcrcnt to an inmatc's serious mcdicalnccds only
whcn hc or shc subjectivcly 'knows of and disrcgards an cxcessivc risk to inmate hcalth or

19

safety'" Jackson. 775 F.3d at 178 (quoting Forme!" 1'. lirennan. 511 U.S. 825.837 (1994)). If a
risk is obvious. a prison orticial"cannot

hide bchind an cxcusc that he was unawarc 01''1 riskr-r

Brice \'. 1'0. Beach Corr. Or .. 58 F.3d 101. 105 (4th Cir. 1995): see also A/akdessi \'. Fiehk 789
F.3d 126. 133 (4th Cir. 2015).
Additionally. the medical treatment provided must be "so grossly incompetcnt.
inadequate. or excessivc as to shock the conscience or to be intolerable to fundamcntal fairness'"
MillieI' \'. Beom. 896 F.2d 848. 851 (4th Cir. 1990) (citing Rogers

1'.

F:nll1s.792 F.2d 1052. \058

(11th Cir. 1986). OI'erruled in porIon olher ground,' hy Farmer. 511 U.S. 825 (1994). A health
providcr must havc actual knowledgc of a serious condition. not just knowledge of the
symptoms. See Jolll1son \'. Quinones. 145 F.3d 164. 168 (4th Cir. 1998) ("[GJcncral knowledgc
of the I~lctscreating a substantial risk ofhanll is not cnough ....

The prison orticialmust

also

draw thc inference bctwcen thosc general facts and thc spccitie risk of harm contronting the
inmate.") (citing Farmer. 511 U.S. at 837). Merc negligence or malpractice does not rise to a
constitutional level. Alillier. 896 F.2d at 85\ (citing Eslelle. 429 U.S. at 106). An inmate's
disagrcemcnt with mcdical providers about thc proper course oftrcatment docs not support an
Eighth Amendmcnt cause of action. See Wrighl

I'.

Collil1S. 766 F.2d 841. 849 (4th Cir. 1985).

("Disagreements betwcen an inmate and a physician over the inmatc's propcr medical carc do
not state a

* 1983 claim'"

) (internal citation omittcd).

The record provides uncontroverted evidence that Defendants and other medical
professionals provided attentive post-surgical wound care to I'laintilTalier his Achillcs tcndon
rcpair surgery. Alier the surgery. I'lainti ff was provided care in the MCIH intirmary. During this
time. his vital signs were monitored. his wound was drcsscd and hc was administercd
medication. including a prophylactic antibiotic. I'laintilTwas discharged and returned to the

20

general prison population several days later alier it was determined he had no signs of infection.
with instructions to continue his pain medication. daily wound cleaning. and to stay off the leg.
PlaintitTwas provided crutches and placed on teed-in status. When signs of infection presented.
Plaintiff was admitted to the infirmary for treatment. He was treated with antibiotics and pain
medication. and regularly examined to monitor his condition. Medical providers ordered lah tests
and cultures to determine the nature of the infection and to identity appropriate antihiotic
treatment. Plaintiff was transported to Bon Secours Ilospital to debride the wound. provided
oxygen treatments. and his antibiotics were monitored to assess whether they were effective
against the hacteria shown in his test results. Because certain strains of the hacteria shown arc
becoming resistant to antibiotics. Plaintiff's physicians adjusted and monitored the anti hiotic
medications administered to him. Plaintiff continued to receive care filr his wound and infection
in the MCIII infirmary until August 5. 2015 and received follow-up care through Fehruary 18.
2016. In his Response. Plaintiff argues that as a result of improper dclay of his surgery and
inadequate pain medication. his right toot is permanently impaired. Eel' No. 13 at 2. These
allegations are unsupported hy testamentary evidence and helied by the record hefore this court.
Even when the evidence is viewed in the light most favorahle to Plaintiff and all
inferences drawn in his fil\'or. there is no genuine issue of materia! filct regarding whether the
DelCndants acted with deliherate indifference to his post-surgical wound care amounting to a
violation of the Eighth Amendment.4 Accordingly. Defendants are entitled to summary judgment
as a matter of law.
IV.

CONCLUSION
For these reasons. Delendants' Motion to Dismiss or. in the Alternative. Motion ttlr

Summary Judgment is granted. The claims against Wexftlfd Health Sources. Inc. arc dismissed .
.•The COlirt declines to exercise supplemental jurisdiction over Mickey' s malpractice claim.

21

Summary Judgmcnt is grantcd in favor of Dcfcndants Slavick and Sam pong. A scparate Ordcr
follows.

&;f-,

Dated: March'Z;Z~ 2017

GEORGE J. HAZEL

United States District Judge

22