Bushrod v. Stewart et al
Filing
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MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 9/15/2017. (c/m 9/15/2017 tds, Deputy Clerk)
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IN TilE UNITEIl STATES IHSTlUCT COURT
FOR TIlE IlISTRICT OF MARY:I}\9S1) \ 5
Southern Ili\'ision
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KEVIN M. BlJSHROIl, #5010-t-007,
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Plaintiff,
v.
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TIMOTHY STEW ART, Warden,
FCI-Cumberland,
MOIIAMEIl MOUBAREK,I Clinical
Ilireetol', FCI-Cumherland,
I{N McCORMICK, Nurse,
FCI Cumberland,
Mil MCGANN-Medical Iloctor,
FCI CUMBERLANIl,
MA' AM SMITH, Unit Manager,
MA 'AM ARVISO, Associate-Warden of
Operations,
DR. HERSHBERGER,
Head Psychologist,
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Case No.: G,lII- 1()-1 !l79
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Defendants.
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MEMORANDUM
In his Complaint
malpractiee
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OPINION
betim~ this Court. Kevin M. Bushrod raises claims of medical
pursuant to the Federal Tort Claims Aet ("'FTCA").
constitutionally
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inadequate
Federal Bureau oj'Narco/ics.
medical care pursuant
28 U.S.c. ~ 2671. e/. self .. and
10 Bivens \'. Six Unkn()\1'11Nallled Age11ls or/he
403 U.S. 388 (1971)2 ECF No. I: ECF NO.4. Defendants
tiled a Motion to Dismiss or. in the Alternative.
Motion li)r Summary
Judgment.
have
lOCI' No. 12.
The docket will be corrected to reflect Defendants' names and titles shown in their dispositive Illotion. ECF No. 12
"'established that the victims ofa constitutional violation by a federal agent have a right 10 recover llumuges
against the allicinl in federal COlll1 despite the absence of any statute conferring such a right:" !lartmaJ11', ,\Ioon'.
547 U.S. 250. 25~ n.2 (2006) (quoting ('''I'/soo \'. (JI'eell. 446 U.S. 14. 18 (1980)). "["jlJi\'el1S aclion is Ihe federal
analog to suits broughl against state onici31s lIndt:!" ... 42 U.S.C.
1983:' /d.
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! Bi\'<'l1s
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which is unopposed.3 In accordance with Rosehoro \". Garrisol1. 528 F.2d 309 (4th Cir. 1975).
the Clerk sent notice to Bushrod to inform him that he may lile a response with affidavits and
exhibits. ECF No. 24.
The matter is ready for disposition. The Court finds that a hearing is unnecessary . .<;ee
Loc. R. 105.6. (D. Md. 2016). For reasons to liJlIow. Defendants' Motion to Dismiss or in the
Alternative for Summar~' Judgment. ECF No. 12. which the Court construes as a Motion for
Summary Judgmcnt is grantcd.
I.
BACKGROUN[)4
Kevin M. Bushrod is a federal inmatc who is prescntly houscd in a halfway house as part
of the federal Residential Reentry Program. He claims that during thc timc hc was incarcerated at
the Federal Correctional Institution in Cumberland. Man'land ("FCI-Cumberland").
Defendants
denied him physical therapy for his leli shoulder injury and appropriate medication I())"
his
mental health condition. ECF No. I.
Bushrod was designated to FCI-Cumberland on May 26. 2015. ECF No. 13-1 at 2.;
During his intake health screening. he stated that he suflers Ieli shoulder pain from a gunshot
wound sustained in September 01'2014. for which he had been receiving physical therapy. lie
was provided a sling to immobilize his shoulder and continucd on Amitriptyline. a mcdication to
trcat mcntal health disorders. ECF No. 13-1 at 14-15.
On May 27. 2015. Bushrod was secn at llealth Services I()r a medical history and
physical examination. The physician assistant who examined Bushrod submitted a radiology
J Defendants arc sued as "severally and jointly" responsible.
Ecr No. ~ at 3. l1ushrod docs not specifY whether he is
suing Defendants in their oflicial or individual capacities or both. Service of process was accepted f{lr only
Defendants in their ofticial capacities. ECF NO.8. For reasons to be dis(:usscd herein. the claims against Defendants
in both their official and personal capacities are unpersuasive.
~ The facts relied
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herein are either undisputed
Pin cites to documents
by that system.
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filed
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or viewed
the Court"s electronic
filing
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in the light most favorable
system (Cl\1fECF)
to the non-Illovant.
refer to the page numbers
generated
rcqucst to cvaluatc
rcvcalcd
Bushrod's
post-traumatic
Icli shouldcr condition.
dcformity
ofthc
ECF No. 13-1 at 30. Thc x-ray rcsults
proximal humerus with multiple ballistic fragmcnts.
ECF No. 13-1 '16: lOCI' No. 13-1 at 30. 33.
At his psychology
diagnoscs
of Attcntion
Disorder C'PTSD").
intakc scrccning
Delidt
Hyperactivity
Anxiety. and Dcprcssion.
J unc 30. 2015. Stephany
decreased
on May 28. 2015. Bushrod rcported prcvious
McGann.
Disorder ("ADHD").
Post-Traumatic
lOCI' No. 13-1 ~ 11: ECF No. 13-1 at 83-92. On
M.D" saw Bushrod fiJI' complaints
of leli arm weakncss and a
rangc of motion. ECF No. 13-1 at 35. Bushrod reportcd difliculty
abovc his hcad and stated that as a basketball
in his upper extremity.
Septcmbcr
of2014.
which improved
submittcd
raising his Icli arm
player he wantcd to obtain bettcr rangc of motion
Ill. at 37. He reported that aner hc was shot in his Ieli shouldcr in
he did not undergo surgery. Bushrod said he was providcd physical thcrapy
his condition.
Bushrod told McGann that hc had a good rangc of motion cxccpt
for raising his ann above his hcad. Ill. at 35. Although
cffectiveness
Stress
of additional
a consultation
McGann cxprcsscd
rcscrvations
about thc
physical thcrapy. givcn that thc injury was ninc months old. shc
request for physical thcrapy li)r Bushrod. ECF No. 13-1 at 2.
No. 13-1 at 37. On July 29. 2015. the Utilization
physical therapy to be mcdically
unnccessary.
Rcvicw Committec
'1 7:
ECF
dcnicd the rcqucst. linding
ECF No. 13-1 at 40.
Bushrod was seen multiple timcs Irom August 28. 2015. through July II. 2016. fiJI'
complaints
of leli shouldcr
was cxamined
pain and wcakncss.
!d at 2.
and linmd to havc a slight dcereasc
'i 9.
During his medical appointmcnts.
he
in the range of motion in the Icli shouldcr.
but
had passivc and active rangc of motion. !d at 2. '19: ECI' No. 13-1 at 42-44.
Clinical
Bushrod's
Director at FCI. Dr. Mohamcd
pm1icipation
Moubarck.
in daily activities
65-67. The
notcd thc shoulder injury does not prevcnt
or playing baskctball.
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48-59.
ECF No. 13-1 at 60-61
(indicating Bushrod injured his knee while playing basketball).
FC[-Cumberland staff manages Bushrod's shoulder injury through "eonservative
treatment" and "pain management:'
ECF No. [3-1 at3. ~ 10. Dr. Moubarek made the decision
not to order timher physical therapy beeause. in his medical opinion. Bushrod had attained the
maximum therapeutie benetit he wou[d reeeive from physical therapy sessions. lei. Moubarek
states that prior to entering into the custody of the Bureau of Prisons ("BOP"). Bushrod rcceived
several months of aggressive physical therapy while in custody of the Central Detention Facility
in Washington. D.C .. and once it was discontinued. he was directed to continue rangc of motion
exercises on his own.ld. [n Moubarek's opinion. "due to the nature of his gunshot wound. which
includes post-traumatic dcformity of the proximal humerus with multiple ballistic fhlgments still
in place. he will not be able to regain the exact same [ever of range of motion that existed prior to
his injury:' !d.
FC[-Cumber[and's
Chief Psychologist. Frank [[ershberger. who met with Bushrod six
times between June 22. 2015. and March 21. 2016. diagnosed him with M,~ior Depressive
Disorder. and prescribed cognitive behavioral therapy. Id. at 3. ~ 12: ECF No. 13-1 at 86-92. On
August 31. 2015. Bushrod asked to be prescribed antidepressant medication. and was referred to
Health Services for evaluation. Bushrod was prescribed Cit[opram. Fluoxctine. Sertaline and
Paroxctinc" for his mental health condition. but did not fully comply with the prescribed
medication regimens. ECF No. 13-1 at 3. ~ 12: ECF No. 13-1 at 70. 74. 76. 86-92.
Bushrod asserts that Dr. Moubarek denied him physical therapy and discontinucd "all
medications" without having access to his medical records. ECF NO.4 at 3. He claims
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These medications are in a class of medications called selective serotonin-rcuptake
inhibitors used to treat
depression and other conditions. Set! https:/lmedlincplus.gov/druginfo/mcds. (last visited Sept. 8. .:!OI7).
Citlopram. Fluoxetinc. SCl1alinc. and Paroxetinc are also known rcspectivel,Y by their brand names eclc.xa.
Prozac. Zolotl. and Pa~dl.Id.
Moubarek's "oITthe culr medical care constitutes cruel and unusual punishment. Id. As relief.
he seeks $750.000 in compensatory damages and $250.000 in punitive damages. restoration of
medications prescribed for him before his incarceration at FCI.Cumberland. and I()r Defendants
to cease and desist Irom denying him medical care. ECF No. I at 6: ECF NO.4 at 3.7
II.
STANDARD
OF REVIEW
A. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6). "a complaint must contain suflicient
factual matter. accepted as true. to 'state a claim to relief that is plausible on its Illce.... Ashero!i
\', II/hal, 556 U.S. 662. 678 (2009) (citing Bel! Allal1lie Corp. \'. 7iromhly.
550 U.S. 544, 570
(2007». "A claim has facial plausibility when the plaintilTpleads factual content that allows the
court to draw the reasonable inference that the delCndant is liable I()r the misconduct alleged."
II/hal. 556 U,S, at 678, "Threadbare recitals of the elements of a cause of action. supported by
mere eonclusory statements, do not suflice." Id. (citing TIl'IJll1hly. 550 U.S. at 555) ("[AJ
plaintiffs obligation to provide the 'grounds' of his 'entitle[mentJ to rcliefrequires more than
labels and conclusions. and a formulaic recitation ofa cause of action's elements will not do."').
Fed. R, Civ, 1'. 12(b)(6)'s purpose "is to test the sufliciency ofa complaint and not to
resolve contests surrounding the facts. the merits of a claim. or the applicability of defenses."
Presley \'. Cily o{Charlolle.\"I'il!e.
464 FJd 480. 483 (4th Cir. 20(6) (citation and internal
quotation marks omitted). When deciding a motion to dismiss under Rule 12(b)(6). a court "must
accept as true all of the factual allegations contained in the complaint." and must "draw all
Bushrod claims that Defendants are in violation of the "Federal Disability Statutes:" the "Rehabilialion Act:" and
the "Revitalization
Act" without explanation. EeF NO.4 at 3. He alleges no facts to mise a claim under the
Americans with Disabilities Act or the Rehabilitation Act. The Revitalization Act of 1997 was enacted by Congress
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to transfer authority for pj]role matters to the United States Parole COlllmission. and abolished the District
Columbia Board of Parole. "Revitalizal iOIl Act:' District of Columbia Sentencing Comm ission.
https://scdc.dc.gov/pagc/revitalization.act.
Bushrod is a D.C. parole viol.HOr. ECF No. 12-1 at 2. I hmcvcr.
claim of a violation under the "Revitalization Act:' is irrelcvant to his medical claims.
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