Melton v. Wexford Health Sources, Inc. et al

Filing 19

MEMORANDUM OPINION Signed by Judge Theodore D. Chuang on 9/27/2017. (c/m 9/27/17 cags, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

RICHARD MELTON,
Prisoner Identification No. 359324,
Plaintiff,
v.
WEXFORD HEALTH SOURCES,
MR. OMBUDSMAN,
KIM CARTER, Health Service Administrator
LASAHUN D. TEMESGEN, M.D.,
Regional Medical Director,
ZOWIE BARNES, M.D., and
LAS HONDA GRIER,
Health Service Administrator,

Civil Action No. TDC-16-2575

Defendants.

MEMORANDUM OPINION
Plaintiff Richard Melton, currently incarcerated at Jessup Correctional Institution ("JCI")
in Jessup, Maryland, has filed suit under 42 U.S.C. ~ 1983 alleging that Defendants Wexford
Health Sources ("Wexford"), JCI's contracted medical services provider; Kim Carter, a Health
Service Administrator; Dr. Kasahun D. Temesgen, Wexford's Regional, Medical Director; Dr.
Zowie Barnes; Lashauna Grier, a Health Services Administrator
Defendants");

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and "Mr. Ombudsman"

were deliberately

(collectively, the "Medical

indifferent to his medical needs

stemming from chronic foot pain, in violation of his rights under the Eighth Amendment to the
United States Constitution.

Presently pending is the Medical Defendants' Motion to Dismiss or,

in the Alternative, Motion for Summary Judgment.

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Having reviewed the submitted materials,

The first names of Defendants Temesgen and Grier were misspelled in the Complaint.

the Court finds no hearing necessary.

See D. Md. Local R. 105.6. For the reasons set forth

below, the Motion, construed as a motion for summary judgment, is GRANTED.

BACKGROUND
On April 15, 2015, Melton complained

of foot pam during a sick-call visit with

Physician's Assistant ("P.A.") Romain. Melton informed P.A. Romain that he had had foot pain
for the past six years, but that it had worsened in the last month.

P.A. Romain noted that

Melton's symptoms were consistent with plantar fasciitis, a condition that occurs when the flat
band of tissue that connects the heel bone to the toes is strained, leading to pain in the bottom of
the foot and heel. P.A. Romain placed an order for arch insoles for Melton.

Melton received

those insoles about three weeks later.
On May 29, 2015, during a chronic-care visit for a different medical condition, Melton
remarked to Defendant Dr. Barnes that his arch insoles did not fit properly.

Dr. Barnes stated

that she would investigate whether the insoles were the proper size and instructed Melton to
check back in two weeks. On June 22,2015, Melton again saw Dr. Barnes for a scheduled visit
and was instructed in stretching exercises for his feet. On June 27, 2015, Melton was provided
with a new pair of arch supports.
On August 11, 2015, Melton had the opportunity to see a physician's assistant about his
foot condition but declined. In a letter dated August 13,2015, Melton wrote to Defendant Grier,
a Health Services Administrator.

Melton asserted that P.A. Romain diagnosed his condition as

plantar fasciitis, and that neither the provided arch supports and foot exercises nor several visits
to physician's assistants had resulted in relief. As a result, he declined the latest appointment
with a physician's assistant because he believed that there was nothing else that they could do for

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his condition.

He therefore asked Grier to arrange for a referral to a podiatrist.

According to

Melton, Grier never responded.
On August 19,2015, Melton was again seen by P.A. Romain for a sick-call visit. Melton
complained that despite the insoles and an unspecified pain medication, he was not getting relief
of his symptoms.

P.A. Romain prescribed Neurontin for his pain and referred him to a prison

doctor for evaluation for a possible referral to an orthopedist. On August 24,2015, Melton sent a
second letter to Grier that reiterated the chronology of his condition and related treatment, his
continuing foot pain, and his request to see a podiatrist, to which she again allegedly did not
respond.
On September 10, 2015, Melton again reported foot pain at a sick-call visit with a nurse
practitioner.

After a physical examination, Melton was prescribed Indomethacin in addition to

his other pain medication.

On September 17, 2015, Melton was examined by Dr. Barnes, who

again assigned stretching exercises, renewed his pain medication prescriptions, and referred him
to Defendant Dr. Temesgen, the Regional Medical Director. On October 9, 2015, during a visit
for another condition, Dr. Barnes lowered Melton's Neurontin dose from 300 milligrams to 100
milligrams after determining that it was causing tremors.
On November 18, 2015, Melton arrived late to his appointment with Dr. Temesgen and
thus was not seen that day. However, prison medical staff still reviewed his file and ordered an
ankle-brachial examination to screen Melton for possible peripheral vascular disease.
On December 22,2015, during a sick-call visit, Melton complained of foot pain radiating
up to his back, coupled with numbness and swelling.

Melton was instructed to stay on his

previously prescribed pain medications and was given a muscle rub to further alleviate pain. On
January 7, 2016, Melton was sent to Bon Secours Hospital for the ordered ankle-brachial testing.

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That examination revealed that Melton's circulation was normal.

Melton returned to JCI the

next day, where he was told to continue his pain medications and was given physical therapy
instruction before returning to his cell.
On January 15, 2016, during an appointment with Dr. Barnes, Melton informed her that
one of the hospital technicians at Bon Secours had told him he needed an MRI to determine the
source of his foot pain. Dr. Barnes informed Melton that she would not be ordering an MRI.
She did, however, review with him other imaging of his foot from a bone scan that revealed mild
degenerative changes. After a discussion with Melton, Dr. Barnes returned his Neurontin dose to
300 milligrams, with the understanding that the increase might again cause 'jittery feelings."
Opp'n Mot. Dismiss Ex. 4, ECF No. 15-5. Melton also asked about another special insole that
had been ordered and was told that once it arrived it would be provided at his next chronic-care
visit.
On February 12, 2016, during another sick-call visit, Melton complained about swelling
in his legs and abdomen and numbness in his arm. Melton was ordered compression stockings
and advised to continue his current medication regimen.

In a letter dated February 14, 2016,

Melton complained to Defendant "Mr. Ombudsman" that, although he had been suffering from
foot problems since 2009, his symptoms had not yet been relieved, and complained in particular
that Dr. Barnes had not ordered an MRI. He also reported that he had been denied special shoes
to address his condition. Melton asserts that he never received a response to his letter.
On February 22, 2016, Melton again saw Dr. Barnes and, among other medical issues,
complained about his ongoing foot condition and requested a podiatry referral. Dr. Barnes asked
Melton to demonstrate the exercises she had previously given him to do, but Melton was unable
to do so. Dr. Barnes ordered a referral to Dr. Tefferra for a review of Melton's condition and

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assistance with symptom management.

On February 26,2016, Melton received his compression

stockings.
In a letter dated March 14, 2016, Melton wrote to Defendant Carter, a Health Services
Administrator, to request that he no longer receive Neurontin because one of its uses is for
treatment of epilepsy and because it had caused him addiction symptoms.

Melton also

complained that he had not received a referral to a podiatrist and demanded to be allowed to
order his own medical shoes as part of the treatment of his foot condition.
On March 15, 2016, Melton was examined during a chronic-care visit by Dr. Tefferra,
who referred Melton to a podiatrist for evaluation. On March 16, 2016, Melton had another
chronic-care visit during which he reported negative side effects from the Neurontin, prompting
its replacement in his medical regimen by Elavil. On April 10, 2016, Melton was informed that a
prior x-ray of his left ankle confirmed that he has a degenerative joint disease. Melton raised no
concerns about his foot pain.
In a letter dated May 24, 2016, Melton complained to Dr. Temesgen about his plantar
fasciitis treatment, noting that the only treatment he had received consisted of receiving insoles,
which had not worked, and Neurontin, which gave him negative side effects.

He emphasized

that he had regular pain in the ball of his foot that radiated to his toes, leaving him feeling as ifhe
were walking on marbles and his toes were frostbitten.

Although he acknowledged Dr. Barnes

had informed him that the only treatment for chronic plantar fasciitis was pain management,
Melton stated that he had done research on his symptoms and believed that his condition was not
plantar fasciitis but metatarsalgia.

Based on the alleged misdiagnosis, he asked to be referred to

a podiatrist.

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On May 30, 2016, Melton received comfort insoles.

On June 24, 2016, during a

continuing-care visit with Dr. Onabajo, Melton reported worsening pain in the soles of both feet,
numbness, and difficulty walking.

Dr. Onabajo, too, ordered a referral to a podiatrist for

evaluation for possible Morton's Neuroma.
On August 2, 2016, Melton was taken outside JCI to visit a podiatrist, who examined
Melton and diagnosed him with hallux limitus, mononeuritis of the limb, edema, and tinea pedis.
The podiatrist recommended that Melton's feet be monitored daily, that he avoid walking in bare
feet, that he elevate his legs, that he see a neurologist, that he be provided specialized orthotic
shoe inserts, and that he be given a special foot cream. The podiatrist also recommended x-rays.
In response to these recommendations,

Melton was referred to a neurologist, the suggested x-

rays were ordered, he was provided with the suggested foot cream, and a follow-up visit with the
podiatrist was requested in order provide the orthotic inserts to Melton. On September 23,2016,
the podiatrist fitted Melton for orthotics. The podiatrist recommended that Melton receive extradepth shoes to accommodate the inserts. The shoes appear to have been ordered.
DISCUSSION
On July 14, 2016, Melton filed suit in this Court under 42 U.S.C.

S

1983 asserting that

the treatment Defendants have provided for his foot pain has been so inadequate that it amounts
to deliberate indifference to a serious medical condition, in violation of his right under the Eighth
Amendment

to be free from cruel and unusual punishment.

monetary relief.

Melton seeks injunctive and

In their Motion to Dismiss or, in the Alternative,

Motion for Summary

Judgment, the Medical Defendants assert that Melton's claim should be dismissed or summary
judgment entered in their favor because Melton has failed to state and establish a viable Eighth
Amendment deliberate indifference claim.

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I.

Legal Standard
In order to consider the exhibits submitted by the Medical Defendants in support of their

Motion, the Court must construe the Motion as one seeking summary judgment.

Fed. R. Civ. P.

12(d). Ordinarily, summary judgment would be inappropriate "where the parties have not had an
opportunity for reasonable discovery."

E.I du Pont De Nemours and Co. v. Kolon Indus., Inc.,

637 F.3d 435, 448-49 (4th Cir. 2012).
Melton does not object to consideration

In his Opposition to Defendants'
of Defendants'

Motion, however,

Motion as a motion for summary

judgment and, in fact, submits exhibits of his own to supplement what he asserts are omissions in
the medical records provided by Defendants.
consider Defendants'

Under these circumstances, it is appropriate to

Motion as a motion for summary judgment.

See Harrods Ltd. v. Sixty

Internet Domain Names, 302 F.3d 214,244 (4th Cir. 2002).
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 248-49.
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II.

Wexford
Section 1983 allows individuals to sue in federal court any person who violates their

federally protected rights while acting under color oflaw.

42 U.S.C. ~ 1983 (2012). The United

States Supreme Court, in Monell v. Department of Social Services of the City of New York, 436
U.S. 658 (1978), concluded that local government entities are considered "persons" for the
purposes of ~ 1983, but they cannot be held liable solely because they employ an individual who
committed an unlawful act. Id. at 690-91.

Rather, local governments can be sued only if the

constitutional violation alleged results from a custom or policy of the local government. Id. This
standard also applies to private companies that employ individuals acting under color of state
law, such as special police officers or prison medical personnel, who allegedly commit unlawful
acts. See Austin v. Paramount Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999) (citations omitted).
Thus, a company such as Wexford is liable under ~ 1983 "only when an official policy or custom
of the corporation causes the alleged deprivation of federal rights." /d.
Here, the evidence establishes that Melton received regular care for his foot condition, in
the form of pain medication and insoles, and that in response to his continued complaints, he was
referred for diagnostic testing and eventually to a specialist.

Although Melton may take issue

with whether that treatment was adequate to address his condition, the fact that he was regularly
provided treatment renders his claim against Wexford fatally flawed.

That regular course of

treatment leaves Melton unable to establish that Wexford had an official policy or custom of not
providing care. Nor is there any evidence that Wexford had an official policy or custom of
refusing to treat inmates for foot conditions or to refer them to specialists for such conditions.
Melton's claims against Wexford must therefore be dismissed.

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III.

Individual Defendants
The Eighth Amendment prohibits cruel and unusual punishment.

VIII.

U.S. Const. amend.

A prison official violates the Eighth Amendment when the official shows "deliberate

indifference to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976);
Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). To be "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)); see also Russell v.
Sheffer, 528 F.2d 318,318 (4th Cir. 1975) (per curiam) ("Questions of medical judgment are not
subject to judicial review.").

"An official is deliberately indifferent to an inmate's

serious

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 v. Brennan, 511 U.S. 825,
837 (1994)). "[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

excessive risk posed by the official's action or inaction."

serious medical condition and the
Id.

(citations omitted).

deliberate indifference claim has both an objective component-that
serious medical condition and an excessive risk to the inmate's
subjective component-that

Thus, a

there objectively exists a
health and safety-and

a

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").
Deliberate indifference is an "exacting standard" that requires more than a showing of
"mere negligence or even civil recklessness, and as a consequence, many acts or omissions that
would constitute medical malpractice will not rise to the level of deliberate indifference."

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Jackson, 775 F.3d at 178; Rich v. Bruce, 129 F.3d 336, 339 (4th Cir. 1997) (finding that even
when prison authorities are "too stupid" to realize the excessive risk their actions cause, there is
no deliberate indifference).

To constitute deliberate indifference to a serious medical need, the

defendant's actions "must be so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness."

MUtier v. Beom, 896 F.2d 848, 851

(4th Cir. 1990), overruled in part on other grounds by Farmer, 511 U.S. at 837. 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).
Defendants do not dispute that Melton has a serious medical condition, specifically his
chronic foot pain, which requires treatment.

They deny, however, that they failed to treat it

adequately and thereby acted with "deliberate indifference" to a serious medical need.

See

Estelle, 429 U.S. at 104. A review of the medical records reveals that, by his own estimation,
Melton began having foot pain symptoms at lCI in March 2015, that he first went to the prison
medical services about his condition in April 2015, and that from April 2015 to September 2016,
he was regularly examined by medical staff, who provided him with foot insoles, a foot exercise
regimen, and pain medication.
his condition.

However, Melton found these treatments insufficient to resolve

When Melton suggested additional steps to take, medical staff did not agree.

Melton's requests for an MRI, for special orthopedic shoes, and for a podiatry consultation were
initially rejected. Melton first requested a podiatry consultation in August 2015 and consistently
repeated the request without success until March 2016, when he was finally referred to a
podiatrist. Notably, he was not actually transported offsite to see a podiatrist until August 2016,
after he had filed this lawsuit. Similarly, Melton first asked for special shoes in February 2016,

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and even offered to pay for them, but he did not receive those shoes until after he visited the
podiatrist, who recommended

special inserts and shoes.

Although his foot was examined

through the use of a bone scan, he never received an MR!.
The Wexford medical staffs decisions, and the lack of progress in resolving Melton's
foot pain, may have stemmed from its diagnosis of his condition as plantar fasciitis, for which
there are limited treatment options. When he finally saw the podiatrist in August 2016, however,
the specialist diagnosed Melton as having different conditions, including mononeuritis, a form of
nerve damage. After this diagnosis, he received specialized orthotic inserts and shoes, a medical
foot cream, and a consultation with a neurologist.
Given that Melton's initial treatment was unsuccessful, that it took 11 months before
Wexford medical staff referred Melton to a specialist, and that it took another five months and
the filing of a lawsuit before Melton was actually able to see that specialist, Melton may have a
legitimate basis to be frustrated with the quality of medical care he received.

Nevertheless,

where the medical records reflect frequent examinations by medical personnel, and Defendants
readily provided medication, insoles, and therapeutic exercises intended to treat Melton's pain,
there is no evidence that Defendants acted with deliberate indifference to Melton's medical
needs.

The fact that his condition may have been misdiagnosed does not establish deliberate

indifference.

See Jackson, 775 F.3d at 178; Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)

(holding that "negligence or malpractice in the provision of medical services" does not constitute
an Eighth Amendment violation).

Nor does the fact that Defendants did not follow Melton's

requests for certain referrals or types of treatment, because "[ d]isagreements between an inmate
and a physician over the inmate's proper medical care do not state a
exceptional circumstances.

Wright, 766 F.2d at 849.

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1983 claim" absent

Where Melton has not identified any

exceptional

circumstances

that

would

support

an inference

of deliberate

indifference,

Defendants' Motion will be granted.

IV.

Defendant "Mr. Ombudsman"
Finally, the Court notes that Melton has sued, but has not yet served, a defendant

identified only as "Mr. Ombudsman," which the Court assumes is an individual serving as an
ombudsman at lCI.

Because Melton is a prisoner, the Court must dismiss any part of the

Complaint that, as relevant here, fails to state a claim upon which relief may be granted.
U.S.C.

S 1915A(b)(1)

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(2012).

Non-medical prison personnel can violate the Eighth Amendment if they intentionally
delay an inmate's access to available treatment for a serious condition. Estelle, 429 U.S. at 10405 (1976); Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 104 (4th Cir. 1995). Here, Melton makes
no allegation, and there is no evidence to suggest, that the lCI Ombudsman intentionally delayed
his treatment, only that Melton at some point contacted the Ombudsman to lodge complaints
about his past treatment by the prison medical staff.

However, prison non-medical staff are

"entitled to rely" on the competence and expertise of prison health care providers.

See Miltier,

896 F.2d at 854-55 ("No record evidence suggests why the wardens should not have been
entitled to rely on their health care provider's expertise."); Paige v. Kupec, No. AW-02-3430,
2003 WL 23274357 at *2 (D. Md. Mar. 31, 2003) (stating that prison non-medical staff are
"permitted to rely on the professional judgment of health care providers employed to care for
inmates"), aff'd 70 F. App'x 147 (4th Cir. 2003) (per curiam).

The lCI Ombudsman therefore

cannot be held liable on an Eighth Amendment claim for failing to question the determination of
the prison medical staff. Melton's claims against "Mr. Ombudsman" will be dismissed.

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CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss or, in the Alternative, Motion
for Summary Judgment is GRANTED.
DISMISSED.

Date:

Melton's claims against Defendant Mr. Ombudsman are

A separate Order shall issue.

September 27,2017

"'s s:

~.

THEODORE D. CHU~
United States District~

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