Marshall v. Stewart et al
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 8/23/2017. (kns, Deputy Clerk)(c/m 8/24/17)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
RONALD E. MARSHALL,
Prisoner Identification No. 34005-037
WARDEN TIMOTHY S. STEWART
Health Service Administrator (Retired),
. Health Service Administrator,
DR. MOHAMMAD MOUBAREK,
Clinical Director, and
TOM GERA, PA-C,
Civil Action No. TDC-16-1645
Ronald E. Marshall, currently confined at the Federal Correctional Institution in Cumberland,
filed this civil rights action under Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). Marshall alleges that Defendants systematically delayed medical
diagnoses and treatment and disregarded the risk to his health, in violation ofthe Eighth Amendment
to the United States Constitution.
Pending before the Court is the Motion to Dismiss or, in the
Alternative, for Summary Judgment filed by Defendants Warden Timothy S. Stewart ("Warden
Stewart"), Health Services Administrator
Richard Shook, Health Services Administrator
Hamilton-Rumer, Dr. Mohammad Moubarek ("Dr. Moubarek"), and Physician's Assistant Tom
Gera. For the reasons set forth below, the Motion, construed as a motion for summary judgment, is
Marshall alleges that in December 2012, while confined at the Federal Correctional
Institution in Fort Worth, Texas, he was diagnosed as having a mass on the upper portion of his right
lung. On January 7, 2013, Marshall arrived at FCI-Cumberland.
On January 9, 2013, as part of an
initial chronic care visit, his primary care provider noted an abnormal mass on Marshall's lung,
which had also been seen on a number of previously taken chest x-rays. FCI -Cumberland medical
staff conducted another x-ray and confirmed that the mass was abnormal.
months later, on March 8, 2013, FCI-Cumberland medical staff performed a CT scan, which
confirmed the presence of a right hilar mass on Marshall's lung. Staff determined that a positron
emission tomography ("PET") scan was necessary, but the scan was not conducted until April 30,
2013, four days after Marshall had submitted an administrative remedy procedure request ("ARP")
complaining of a failure to provide adequate medical care. The scan results were consistent with a
cancerous mass, so on May 6, 2013 medical staff requested a consultation and biopsy by a
cardiothoracic surgeon. On May 16, 2013, the Warden denied Marshall's April 26, 2013 ARP on the
basis that Marshall was receiving frequent and ongoing testing and evaluation. On May 28, 2013,
prior to the biopsy, the cardiothoracic surgeon evaluated Marshall and requested a pulmonary
function test, which was completed on June 17,2013. Then on June 27, 2013, Marshall underwent a
bronchoscopy, a thorascopy, and a thoracotomy with a wedge biopsy.
Marshall returned to the hospital on July 5, 2013 for a surgical complication-an
the pleural fluid, which tested positive for methicillin-resistant Staphylococcus aureus ("MRSA").
In a July 11,2013 progress report, a physician stated that Marshall had bilateral pneumonia and right
) All page numbers refer to the page numbers assigned by CM/ECF.
empyema and that "[c]aseating granulomas with organisms consistent with histoplasma" were
isolated from his biopsy.
Compl. Ex. A at 11, ECF No.1-I.
After several days of treatment,
Marshall's condition had improved, but the physician also recommended a follow-up CT scan in four
months and various studies.
Following the June 27, 2013 procedures,
Marshall was also examined by a local
pulmonologist and Dr. Rashida Khakoo, an infectious disease specialist at West Virginia University
believed that the lung mass was a fungal colonization
recommended no further treatment. Dr. Khakoo examined Marshall on October 28, 2013, requested
additional information, and later re-evaluated him with the approval of the FCI-Cumberland
Utilization Review Committee. After these consultations, the mass was again determined to be a
According to Dr. Moubarek, a fungal colonization is not an infection, but a fungus or
organism in an area of a person's body. A fungal colonization is not unusual and generally does "not
require immediate treatment unless there are other extenuating medical conditions for which the
colonization could provide complications." Moubarek Aff. ~ 10, Mot. Dismiss Ex. 2, ECF No. 14-2.
Having considered the input from Dr. Khakoo, FCI-Cumberland medical staff therefore decided to
observe, but not actively treat, the mass in Marshall's lung.
The June 27, 2013 procedures had required incisions, and medical staff and Marshall
received the following post-procedure instructions:
"wash incisions with antibacterial soap and
H20," "keep dry," "apply Bacitracin as needed," "keep dressing in place until Friday AM 7/5," "no
lifting more than 10 lbs for 4-6 wks," and "report any chest pains, [shortness of breath], fever and
Compl. Ex. A at 4 (capitalization altered).
Although FCI-Cumberland medical staff
followed the recommendations,
Marshall had an unhealed wound "approximately
one to two
millimeters in size" as a result of the surgery. Moubarek Aff. ,-r,-r 12-13.
In August 2013, Marshall's incision opened and began to drain, and the oozing continued
even after an x-ray and treatment with antibiotics. On October 21,2013, the area was treated with
silver nitrate, which was painful but ineffective. In November, a "long braided stitch was removed
from the site," after which the wound closed and no longer drained. Compl. Ex. A at 44.
During the October 21,2013 visit, Marshall had another CT scan, which revealed scarring
along the right chest wall. The thoracic surgeon also evaluated Marshall and ordered a bone scan.
The bone scan, which occurred on December 9,2013, showed changes in his sixth and seventh ribs
on the right side which could be indicative of either osteomyelitis or just expected post-operative
inflammatory changes and scar tissue. Because Marshall was not diagnosed with a bone infection
and the wound had healed, the thoracic surgeon chose to monitor Marshall with no further treatment.
The doctor noted, however, that if the wound reopened or started to drain again, Marshall would
"most likely need surgical debridement and removal of some rib segments." Id. at 44-45.
Medical records reflect that Marshall did not complain of chest pain from December 2013
until March 2014. On March 20, 2014, he appeared at FCI -Cumberland Health Services stating that
he had been experiencing sharp pains below his right breast area for the past month, though the pain
was not continuous.
Gera, who examined Marshall, told him that the pain was the result of the
surgery, which would continue for some time, but nevertheless ordered a new x-ray. No further
infectious disease follow-up was deemed necessary because the histoplasmosis
Likewise, during an April 14,2014 chronic care visit, Gera concluded, after consultation with an
infectious disease specialist, and with the x-ray results proving to be negative and other tests
revealing no evidence of histoplasma or yeast, that no follow-up treatment was necessary. Compi.
Ex. B at 43, ECF No. 1-2.
The next year, on April 28, 2015, Marshall went Health Services to report pain in his chest
and drainage from the surgical site. For an unknown reason, he was turned away, but after filing an
informal complaint, Marshall was seen on April 30, 2015. One of his scars had a small opening and,
although there was some drainage seen on his shirt, there was no active drainage or redness or sign of
infection at the surgical site. The area was cleaned and dressed, and a chest x-ray and follow-up with
Marshall's primary care physician was ordered. On May 1, 2015, Marshall saw Gera and again
complained of pain in his right chest and drainage from the surgical site.
Gera requested a
consultation with cardiothoracic surgery and provided Marshall with dressings to keep his wound
clean. When Marshall returned to Health Services on May 6, 2015, he was prescribed antibiotics.
At a May 19, 2015 follow-up visit, Marshall complained of tenderness along his rib. On May
20,2015, after a cardiothoracic consultation, Gera requested another CT scan and bone scan and
recommended that Marshall be evaluated by an infectious disease specialist at a tertiary care facility.
On July 6,2015, a physician's assistant at WVU evaluated Marshall and recommended a CT scan
for further assessment of the wound.
The CT scan results were negative for wound-related
complications but revealed two pulmonary nodules. The physician's assistant prescribed a silver
nitrate treatment and recommended a repeat CT scan in six months to reevaluate the nodules. On
July 28, 2015, Marshall reported burning and increased drainage that seemed to be exacerbated by
the silver nitrate. His wound was cleaned and covered, and he was given ibuprofen for discomfort.
On August 4,2015, Gera requested an urgent consultation with an infectious disease specialist.
On August 17, 2015, Marshall returned to Dr. Khakoo, the WVU infectious disease
specialist, who recommended a nuclear study. Accordingly, on August 25, 2015, Gera ordered
laboratory tests and an imaging study. The nuclear study, consisting of a white blood cell scan was
conducted on November 10,2015. The results were deemed "unremarkable."
Compi. Ex. Cat 57,
ECF No. 1-4. Nevertheless, Marshall continued to experience wound drainage in November 2015.
On November 20,2015, Gera took a culture, which tested positive for MRSA.
On December 31, 2015, Marshall appeared at Health Services to "review progress of finding
a plan for resolution of continued painful chest drainage." Id. at 73. That same day, Dr. Moubarek
told Dr. Khakoo about the persistent drainage. Dr. Khakoo expressed concern about osteomyelitis
and suggested referring Marshall back to his thoracic surgeon for another opinion and offered to
repeat some of the studies. Meanwhile, on January 7, 2016, Marshall, frustrated by perceived "lack
of diligence demonstrated in my medical care," requested a transfer to a medical facility capable of
providing prompt medical care. Compi. Ex. E at 2, ECF No. 1-6. The request was denied by
Hamilton-Rumer on the basis that Marshall had "been receiving appropriate, care." Id.
Upon seeing Marshall on January 12, 2016, Gera submitted an urgent request for a
consultation with cardiothoracic surgery for revaluation of the incision site. The thoracic surgeon
ordered another CT scan and bone scan on February 1, 2016. On February 16, 2016, Marshall
underwent the bone scan, which showed a mild uptake in Marshall's right rib cage in the area of the
sixth, seventh, and eighth ribs. "Given the low-level uptake of the radionuclide," however, medical
staff concluded that there was a low probability of osteomyelitis. Compi. Ex. D at 22, ECF No. 1-5.
On February 18, 2016, Marshall was sent to a plastic surgeon for a:consultation. The plastic
surgeon assessed him as having a "possible suture granuloma" and performed a local procedure to
open the area, remove a small suture from the wound, irrigate the area, and allow it to drain. Id. at
26-27,29. After a March 3, 2016 follow-up visit with Marshall, the plastic surgeon noted that there
were a few areas of drainage and that a wound infection could not be ruled out. She also noted that
he may be having an allergic reaction to the sutures and recommended another excision of the
surgical site and a debridement procedure.
On April 18, 2016, the plastic surgeon removed an
'ethibond suture that may have been causing Marshall's condition, and she later performed a
debridement on August 8, 2016.
Since then, Marshall's surgical wound has not increased, l;>utt appears to remain unhealed.
Marshall last saw the plastic surgeon on September 27,2016, when she recommended that he be
reevaluated by the thoracic surgeon.
On November 21, 2016, the thoracic surgeon examined
Marshall and recommended that an MRI be performed.
Defendants seek dismissal of the Complaint or summary judgment in their favor on several
grounds, including that: (1) Hamilton-Rumer and Gera are entitled to absolute immunity under the
Public Health Service Act, 42 U.S.C.
233 (2012); (2) Warden Stewart and Shook did not
personally act or fail to act in deliberate indifference to Marshall's serious medical needs; (3) Dr.
Moubarek did not act with deliberate indifference to Marshall's
serious medical needs; (4)
Marshall's claims against Defendants in their official capacities are barred by sovereign immunity;
and (5) Defendants are entitled to qualified immunity.
I. Legal Standard
Because Defendants have submitted evidence for the Court's review, and because Marshall
has not requested an opportunity for discovery, the Motion is construed as a motion for summary
judgment. See Fed. R. Civ. P. 12(d). Under Federal Rule of Civil Procedure 56(a), the Court grants
summary judgment if the moving party demonstrates that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986). In assessing the Motion, the Court views the
facts in the light most favorable to the nonmoving party, with all justifiable inferences drawn in its
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts
supported in the record, not simply assertions in the pleadings. Bouchat v. Bait. Ravens Football
Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). The nonmoving party has the burden to show a
genuine dispute on a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing
law." Anderson, 477 U.S. at 248. A dispute of material fact is only "genuine" if sufficient evidence
favoring the nonmoving party exists for the trier of fact to return a verdict for that party. Id. at 24849.
Public Health Service Immunity
As a threshold matter, Marshall's Bivens claims against Hamilton- Rumer and Gera are barred
by the absolute immunity entitled to Public Health Service ("PHS") officers and employees under 42
U.S.c. 233(a). Section 233(a) provides that:
The remedy against the United States provided by sections 1346(b) and 2672 of Title
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 by reason of the same subject-matter against the officer or employee (or
his estate) whose act or omission gave rise to the claim.
42 U.S.C. 233(a). In Hui v. Castaneda, 559 U.S. 799 (2010), the United States Supreme Court held
that "(b]ased on the plain language of
... PHS officers and employees are not personally
subject to Bivens actions for harms arising out of such conduct." Id. at 802. Rather,
9 233(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."
Id. at 806.
and Gera have both attested that they are employed by PHS.
Hamilton-Rumer has been a PHS employee since February 1,2013, and he began working at FCICumberland on September 20,2015.
Gerahas been a PHS employee since July 2011 and has been
at FCI-Cumberland since February 2009. Marshall does not assert or provide evidence that he had
any contact with, or received treatment from, Hamilton-Runner or Gera before the time that they
were employed by PHS. Accordingly, the Bivens claims against them must be dismissed. See id. at
802; see also Angelina v. Cumberland FCI Health Servs., No. GJH-15-2427, 2017 WL 1025720, at
* 5 (D. Md. Mar.
15, 20 17) (dismissing a prisoner's Bivens claim against a PHS employee for failing
to provide adequate medical care).
Meanwhile, Warden Stewart and Health Services Administrator
Shook are entitled to
summary judgment in their favor because Marshall has not demonstrated that they had any personal
involvement in his medical care or lack thereof. "In a Bivens suit, there is no respondeat superior
liability. Instead, liability is personal, based upon each defendant's own constitutional violations."
Trulockv. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (internal citation omitted). A plaintiff making a
supervisory liability claim under Bivens must show that the supervisor had "actual or constructive
knowledge" that the subordinate "was engaged in conduct that posed a pervasive and unreasonable
risk of constitutional injury to citizens like the plaintiff, and that the supervisor's response showed
deliberate indifference to or tacit authorization of the alleged offensive practices, and caused the
plaintiffs injury." Baker v. United States, 645 F. App'x 266, 269 (4th Cir. 2016) (quoting Wilkins v.
Montgomery, 751 F.3d 214,226-27 (4th Cir. 2014)).
Marshall has not sufficiently alleged or established that Warden Stewart and Shook were
personally responsible for his medical screening, diagnosis, or treatment or that they had actual or
constructive knowledge that he was receiving inadequate medical treatment. Although Marshall
cites Warden Stewart's May 16, 2013 dismissal of his April 26, 2013 ARP complaining of a failure
to provide adequate medical care, the Warden's response reflected his understanding that "it has
been determined [that Marshall has] received appropriate, progressive care related to the abnormality
of [his] lung."
CompI. Ex. G at 3-4, ECF No. 1-8. Similarly, Warden Stewart's receipt of
Marshall's July 13, 2016 transfer request does not establish that the Warden had knowledge of
inadequate medical care where the medical records show a long history of efforts to treat his
condition. Significantly, as a non-medical correctional supervisor, Warden Stewart was entitled to
rely on the medical opinions and expertise of the professionals working in FCI-Cumberland Health
Services regarding the treatment of Marshall's condition. See Miltier v. Beom, 896 F.2d 848, 854-55
(4th Cir. 1990) (stating, in finding that wardens had no supervisory liability under
9 1983 for alleged
inadequate medical care, that "it would be an unprecedented extension of the theory of supervisory
liability to charge these wardens, not only with ensuring that [the prisoner] received prompt and
unfettered medical care, but also with ensuring that their subordinates employed proper medical
learned during several years of medical
overruled on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994).
generally Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006) (describing a Bivens action as the federal
analog to a
1983 actions); Dachman v. Shalala, 950 F. Supp. 708, 710 (D. Md. 1997) ("(C]ourts
S 1983 law to Bivens
As for Shook, Marshall argues that he has alleged that Shook, along with Dr. Moubarek,
and Gera, were active members of the Utilization Review Committee and
"consulted and colluded" with each other to "systematically delay my medical treatment."
Opp'n Mot. Dismiss 3, ECF No. 16. The record, hbwever, lacks evidence to support his claim or to
refute Shook's declaration that he "did not examine, diagnose, or treat inmates' medical conditions";
that he "did not provide treatment or interact with" Marshall; and that "(a]t no point did I participate
in, or become aware of, a scheme to delay Plaintiffs medical treatment." Shook Decl.,-r,-r ,3, Mot.
Dismiss Ex. 3, ECF No. 14-4. Accordingly, the Court will grant Defendants' Motion as to Warden
Stewart and Shook.
The only remaining Defendant is Dr. Moubarek, Marshall's treating physician. The record,
however, lacks sufficient evidence to create a genuine issue of material fact whether Dr. Moubarek,
or any of the other Defendants, acted with deliberate indifference toward Marshall's condition in
violation of the Eighth Amendment.
The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. amend. VIII.
An inmate's Eighth Amendment rights are violated when there is "deliberate indifference" to
"serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976); Jackson v. Lightsey, 775 F.3d
170, 178 (4th Cir. 2014). A deliberate indifference claim has both an objective component-that
there objectively exists a serious medical condition and an excessive risk to the inmate's health and
a subjective component-that
the official subjectively knew of the condition and risk.
Farmer v. Brennan, 511 U.S. 825, 834, 837 (1978) (holding that an official must have "knowledge"
of a risk of harm, which must be an "objectively, sufficiently serious").
To be objectively "serious," the condition must be "one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention." Jackson, 775 F.3d at 178 (quoting Iko v. Shreve,
535 F.3d 225,241 (4th Cir. 2008)). However, deliberate indifference "does not require proofthatthe
plaintiff suffered an actual injury." Heyer v. Us. Bureau of Prisons, 849 F.3d 202,210 (4th Cir.
2017). Instead, it is enough that the defendant's actions exposed the plaintiff to a 'substantial risk of
serious harm.'" Id. (quoting Farmer, 511 U.S. at 837).
As for the subjective component, "[a]n official is deliberately indifferent to an inmate's
s~rious medical needs only when he or she subjectively knows of and disregards an excessive risk to
inmate health or safety." Jackson, 775 F.3d at 178 (quoting Farmer, 511 U.S. at 837). "[I]t is not
enough that an official should have known of a risk; he or she must have had actual subjective
knowledge of both the inmate's serious medical condition and the excessive risk posed by the
official's action or inaction."
Id. (citations omitted).
"[M]any acts or omissions that would
constitute medical malpractice will not rise to the level of deliberate indifference."
"[ d]eliberate indifference is "more than mere negligence, but less than acts or omissions done for the
very purpose of causing harm or with knowledge that harm will result." Scinto v. Stansberry, 841
F.3d 219, 225 (4th Cir. 2016) (internal alterations omitted).
Under this standard, a mere
disagreement between an inmate and a physician over the appropriate level of care does not establish
an Eighth Amendment violation absent exceptional circumstances.
Here, the record establishes that there has been no attempt by Dr. Moubarek or other
members of the prison medical staff to ignore or recklessly disregard a serious medical condition
suffered by Marshall. To the contrary, the record demonstrates that Dr. Moubarek and his medical
staff consistently responded to Marshall's medical complaints relating to the mass on his right lung
and the unhealed wound that resulted from the surgical procedures employed to address the mass.
As for the mass on Marshall's lung, FCI-Cumberland medical staff noticed it on January 9,
2013, two days after he arrived at the institution.
They subsequently sent Marshall to multiple
specialists, including a cardiothoracic surgeon and an infectious disease specialist at WVU, in order
to obtain a diagnosis and treatment of the mass. Medical staff also conducted or facilitated the
performance of repeated CT, PET, bone, and other scans as deemed necessary, as well as procedures
including a bronchoscopy, thoracoscopy, and a thoracotomy with a wedge biopsy. Based on the
input of the various specialists, Marshall's physicians ultimately concluded that the mass on
lung was a fungal colonization,
not cancer, and concluded that, because such
colonizations do not require immediate treatment absent extenuating medical conditions, continued
observation was the appropriate treatment plan. When he later complained again of pain in his chest,
medical staff ordered additional tests and scans, including an MR!, in order to determine whether
there was any remaining health risk.
second condition, an unhealed surgical incision deriving from June 2013
procedures to address the lung mass, was also consistently treated by either FCI -Cumberland medical
staff or outside specialists, including cardiothoracic and plastic surgeons, employing various tests,
scans, and procedures.
After drainage initially appeared in August 2013, an x-ray was taken,
antibiotics were administered, and a stitch was removed from the site, after which the drainage
stopped. CompI. Ex. A at 44. When the drainage reappeared in 2015, FCI-Cumberland medical
staff consistently evaluated the complaint before determining whether follow-up consultations or
procedures were necessary.
Finally, when they enlisted a plastic surgeon who removed another
suture, the drainage stopped again.
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). Here, the
record of consistent medical attention to address Marshall's conditions establishes that prison
medical staff did not deliberately fail to provide treatment. The treatment included consultations, in
some cases on multiple occasions, with a pulmonologist, an infectious diseases specialist from
WVU, a thoracic surgeon, and a plastic surgeon.
It included numerous tests and procedures,
including x-rays, CT scans, PET scans, bone scans, cultures, and white blood cell surveys, some
conducted on multiple occasions.
Even though it took these multiple tests, consultations, and
procedures to finally diagnose the lung mass and to address the discharge from Marshall's wound,
and some transfer of information, scans, or procedures were delayed, an "inadvertent failure to
provide adequate medical care" does not amount to deliberate indifference. Estelle, 429 U.S. at 10506 ("[A] complaint that a physician has been negligent in diagnosing or treating a medical condition
does not state a valid claim of medical mistreatment under the Eighth Amendment. "). To the extent
that Marshall disagrees with the course of care provided to him, such a disagreement does not
establish an Eighth Amendment violation absent exceptional circumstances. Scinto, 841 F.3d at 225.
Marshall has not identified, let alone provided evidence of, any exceptional circumstances such that
his disagreement over the appropriate level of care rises to an Eighth Amendment violation.
Accordingly, Defendants are entitled to summary judgment on all claims. The Court therefore need
not, and does not, address Defendants' remaining arguments.
For the foregoing reasons, Defendants'
Motion to Dismiss, or in the Alternative, for
Summary Judgment, construed as a motion for summary judgment, will be granted. A separate
Order shall issue.
Date: August 23,2017
THEODORE D. CHUAN
United States District Judg
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