Redmond v. University of Texas Medical Branch Hospital Galveston et al

Filing 38

ORDER Denying 2 MOTION/APPLICATION to Proceed In Forma Pauperis. Order Dismissing this action without prejudice. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(sscotch, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
RANDELL JOSEPH REDMOND,
Plaintiff,
VS.
UNIVERSITY OF TEXAS MEDICAL
BRANCH HOSPITAL GALVESTON, et
al,
Defendants.

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§ CIVIL ACTION NO. 2:13-CV-268
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§
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§

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS
AND DISMISSING CASE
Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal
Institutions Divisions (TDCJ-CID), and is currently confined at the McConnell Unit in
Beeville, Texas. He filed this § 1983 prisoner civil rights action on August 23, 2013,
(D.E. 1), and sought leave to proceed in forma pauperis (i.f.p.) (D.E. 2). In his original
complaint, Plaintiff alleged that certain medical officials with the University of Texas
Medical Branch, Correctional Managed Care (UTMB-CMC), as well as UTMB medical
and TDCJ security officials at the McConnell Unit, had been, and were continuing to
violate his Eighth Amendment right to be free from cruel and unusual punishment as they
were deliberately indifferent to his serious medical needs.1 (D.E. 1). However, Plaintiff
is a “three-strikes litigant” as that term is defined in 28 U.S.C. § 1915(g), and as such, he

1

As discussed herein, Plaintiff is complaining that Defendants have ignored or have failed to
treat appropriately his serious medical needs since December 2009, through the present. (See
D.E. 1, pp. 9-21).
1 / 21

has lost the privilege of proceeding i.f.p. unless he is “under imminent danger of serious
physical injury.” See 28 U.S.C. § 1915(g). Therefore, on September 4, 2013, Plaintiff’s
i.f.p. application was granted conditionally for the limited purpose of obtaining a copy of
Plaintiff’s TDCJ medical records from the Office of the Attorney General (AG), in its
capacity as Amicus Curiae, to better evaluate Plaintiff’s allegations of imminent physical
injury.2 (See D.E. 10, conditional grant of i.f.p. status).
I.

Jurisdiction.
The Court has federal question jurisdiction over this action. See 28 U.S.C.

§ 1331.
II.

Three strikes rule.
Prisoner civil rights actions are subject to the provisions of the Prison Litigation

Reform Act (“PLRA”), including the three strikes rule, 28 U.S.C. § 1915(g). The three
strikes rule provides that a prisoner who has had, while incarcerated, three or more
actions or appeals dismissed as frivolous, malicious, or for failure to state a claim upon
which relief can be granted is prohibited from bringing any more actions or appeals in
forma pauperis. 28 U.S.C. § 1915(g); Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir.
1998); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). The three strikes rule
provides an exception permitting prisoners who are under imminent danger of physical
harm to proceed without prepayment of the filing fee. Id.

2

See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); Cay v. Estelle, 789 F.2d 318, 323 n. 4
(5th Cir. 1986).

2 / 21

III.

Plaintiff’s litigation history.
Plaintiff has had at least three prior actions dismissed as frivolous, malicious, or

for failure to state a claim upon which relief can be granted. In the Western District of
Texas, San Antonio Division, Plaintiff acquired his first strike in Redmond v. Brozowski,
et al., Case No. 5:96-cv-342 (W.D. Tex. Mar. 11, 1998) (dismissed with prejudice as
frivolous) (first strike).

While located in the Northern District of Texas, Plaintiff

acquired his second strike in the Lubbock Division, Redmond v. Harlan, et al, Case No.
5:98-cv-303 (N.D. Tex. May 17, 1999) (damage claims for allegedly unconstitutional
disciplinary conviction are unavailable and fail to state a cognizable claim under § 1983
unless or until the challenged disciplinary conviction has been reversed, set aside, or
vacated) (second strike). In the Amarillo Division of the Northern District of Texas,
Plaintiff obtained his third strike in Redmond v. Richardson, et al., Case No. 2:97-cv-266
(N.D. Tex., Oct. 21, 1999) (Plaintiff’s allegations of deliberate indifference concerning
his shoulder pain and work restrictions failed to state claims of deliberate indifference
under the Eighth Amendment) (third strike). Based on these three “strikes,” Plaintiff is
now barred from proceeding i.f.p. in a prisoner civil rights action unless he is in
“imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g).
The courts have stated that in order to meet the imminent danger requirement of §
1915(g), the threat must be “real and proximate.” Ciarpaglini v.Saini, 325 F.3d 328, 330
(7th Cir. 2003). Allegations of past harm do not suffice; the harm must be imminent or
occurring at the time the complaint is filed, and the complaint must refer to a “genuine
emergency” where “time is pressing.” Heimerman v. Litscher, 337 F.3d 781, 782 (7th
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Cir. 2003). In passing the statute, Congress intended a safety valve to prevent impending
harms, not those which had already occurred. Abdul-Akbar v. McKelvie, 239 F.3d 307,
315 (3d Cir. 2001).
IV.

Analysis.
In the instant lawsuit, Plaintiff is suing Defendants for deliberate indifference to

his serious medical needs. (D.E. 1 at 4-5). He claims that he is in constant pain and
suffering, with undiagnosed injuries dating back to December 2009, and he contends that
these injuries have worsened to the point that “urine runs down his legs because the
injur[ies] went unchecked for so long.” (D.E. 1, p. 3). Plaintiff named the following
individuals as defendants: (1) Dr. Masood Ahmad, a physician at UTMB Hospital
Galveston (HG); (2) Dr. Whitt, the primary medical provider at the McConnell Unit; (3)
Drew Stalinsky, the McConnell Unit practice manager who is in charge of scheduling
tele-med appointments and/or transportation of inmates to HG or to specialized medical
units if ordered by medical personnel; (4) Dr. Karl Stein, a former McConnell Unit
physician; (5) Erick Echavarry, a Physician’s Assistant (PA) at the McConnell Unit; (6)
Lorie Hudson, a Nurse Practitioner (NP) at the McConnell Unit; (7) Nurse Carrie
Hucklebridge, a grievance investigator; (8) Nurse Elizabeth Joseph at UTMB HG; (9) Dr.
Wesley T. Calvin, a physician at UTMB HG; (10) William Burgins, a UTMB grievance
investigator; (11) UTMB Nurse-In-Training Judy; and (12) Numerous UTMB and TDCJ
John and Jane Does. (D.E. 1, pp. 4-5).
In response to this Court’s Martinez order (D.E. 13), the AG produced under seal
relevant portions of Plaintiff’s TDCJ-CID medical records from December 2009 through
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the present. (See D.E. 26, Ex. B).3 In addition, the AG offered the Affidavit of Dr.
Steven Bowers, legal coordinator for UTMB-CMC who has reviewed Plaintiff’s TDCJ
medical records. (See D.E. 26, Ex. A). Plaintiff’s medical records are voluminous, and
in his affidavit, which is quite lengthy itself, Dr. Bowers has attempted to summarize
Plaintiff’s medical complaints, as well as the medical treatment provided to him. (See
D.E. 26-1 – 26-7). Upon review of this evidence, the Court finds there is simply no
evidence that Plaintiff is in imminent danger of serious physical harm for purposes of
§1915(g) to permit Plaintiff to proceed i.f.p.

To the contrary, the Court finds that

Plaintiff has received, and is continuing to receive, appropriate and timely medical
treatment. Moreover, Plaintiff is advised that, even if he had the funds to bring this
lawsuit such that he did not need to proceed i.f.p, the Court would be inclined to dismiss
this action at §1915A screening for failure to state a claim and/or as frivolous, despite
assuming Plaintiff’s factual allegations as true and construing them in the light most
favorable to him.
A.

Plaintiff’s medical complaints and treatment.

On December 17, 2009, at UTMB’s Hospital Galveston (HG), Plaintiff underwent
percutaneous coronary intervention (PCI), more commonly referred to as coronary
angioplasty with stent replacement. (See DE. 26-7, pp. 98-133; see also D.E. 26-1. p. 3,
Bowers Aff’t at ¶ 4). The procedure involved a small surgical incision in the groin area

3

Due to the sheer volume of the medical records, reference to the medical records is to the
Court’s docket entry numbers and page numbers. For example, Defendants’ Exhibit B is
comprised of D.E. 26-1, through 26-7, with a page number range.
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and the insertion of a small catheter through Plaintiff’s right femoral artery and up to the
heart. Id. On December 23, 2009, Plaintiff underwent a second PCI. (See DE. 26-7, pp.
34-97; see also D.E. 26-1. p. 3, Bowers Aff’t at ¶ 4). Both surgeries were successful with
no complications. (D.E. 26-1, p. 3, Bowers Aff’t at ¶ 4).
Nursing notes dated December 24, 2009, reflect that Plaintiff had bruising and a
small lump at the catheter entry site.4 (D.E. 26-1, p. 4). Nursing notes dated December
25, 2009 indicate: “small R (right) groin hematoma: improved tenderness and size
unchanged.”

Id.

In Plaintiff’s discharge notes dated December 30, 2009, it was

recommended that the hematoma be monitored for any increase in size. Id. Dr. Hulipas
prescribed Plaintiff Tylenol #3 to be taken up to three times a day as needed for 7 days.
Id. (See also D.E. 26-7, p. 66).
Plaintiff returned to the McConnell Unit, and on January 5, 2010, Plaintiff
submitted a Sick Call Request (SCR) complaining of calf and groin pain. (D.E. 26-7, p.
33). On January 6, 2010, Plaintiff was seen by NP Hudson in the infirmary and, based on
her examination, she referred him for liver and pulmonary function tests, scheduled him
for an appointment at the Chronic Care Clinic (CCC), renewed a number of his
prescriptions for Aspirin and Salsalate,5 and submitted an expedited referral request to
HG’s Cardiology Clinic for a follow-up appointment. (D.E. 26-7, pp. 4-7).

4

In his affidavit, Dr. Bowers testifies that it is common for a patient to experience bruising and
soreness at the catheter entry site following the PCI procedure. (D.E. 26-1, p. 3, Bowers’ Aff’t
at ¶ 4).

5

Salsalate is a non-steroidal anti-inflammatory drug.
6 / 21

On January 9, 2010, Plaintiff submitted a SCR complaining about stinging and
burning in his leg and requesting crutches. (D.E. 26-7, p. 1). On January 12, 2010, he
was seen by an LVN who scheduled him to be seen by a provider to address his
complaints. (D.E. 26-6, p. 172). On January 14, 2010, Plaintiff was seen in the infirmary
and nursing notes state that Plaintiff “denie[d] any medical complaints.” (D.E. 26-6, p.
169). Plaintiff was seen again the next day where he told a nurse that he was not having
any problems with his leg that day, but he was instructed to submit a SCR should the
burning sensation return. (D.E. 26-6, p. 167). Plaintiff was also seen by NP Hudson on
January 15, 2010, but he did not complain about leg pain at that time. (D.E. 26-6, p. 165166). He complained about chest pain and inquired about whether sexual release was
medically necessary. Id. at 165. NP Hudson noted that Plaintiff was in “no acute
distress” (NOA) and “pain not reproducible at this time.” Id. Also, an EKG was
performed and was normal, and she educated Plaintiff on taking his nitroglycerin within
the guidelines. Id.
On February 4, 2010, Plaintiff submitted two SCRs complaining about chest pain.
(D.E. 26-6, p. 142). Plaintiff was seen by Nurse Miller who noted that Plaintiff was “…
in no distress …. Seen for this complaint four times in the same number of days.” (D.E.
26-6, pp. 148-154). Nurse Miller scheduled Plaintiff to see NP Hudson, but Plaintiff left
the clinic without seeing NP Hudson. (D.E. 26-6, pp. 142, 154).
On February 17, 2010, Plaintiff was seen by mental health services after he
complained that he believed security was not treating him properly with regard to his
work restrictions. (D.E. 26-6, p. 119). Plaintiff was seen by Nurse Munoz who noted
7 / 21

that he was returned to his cell in no acute physical distress. (D.E. 26-6, p. 128). He was
seen again by mental health services on February 22, 2010, when he again complained
about not being medically unassigned for work purposes. (D.E. 26-6, p. 117).
On February 17, 2010, Plaintiff was seen in the infirmary by NP Hudson for
complaints of worsening chest pain and his concern about having to perform any type of
work. (D.E. 26-6, pp. 83-84). Plaintiff’s vital signs were normal except for a slightly
elevated blood pressure, and NP Hudson noted that he was in no acute distress. Id. at 83.
NP Hudson increased the dosage of Plaintiff’s Aspirin and Metoprolol prescriptions, gave
him a medically unassigned work restriction for one month, and followed up on a request
to Keith Webb seeking a referral to Plaintiff to HG Cardiology Clinic. Id. at 83-84, 80.
On March 11, 2010, Plaintiff was taken to HG’s Cardiology Clinic but was not
seen due to unexpected large patient volume that day. (D.E. 26-6, p. 70). A note was
entered into the record requesting he be rescheduled for the next available appointment.
Id. On March 17, 2010, Plaintiff submitted a SCR asking that NP Hudson extend
Plaintiff’s work restrictions. (D.E. 26-6, p. 63). NP Hudson saw Plaintiff the next day.
Id. at 58. NP Hudson noted that Plaintiff was in no acute distress, but she extended his
medical work restriction for 30 more days. Id.
On April 12, 2010, Plaintiff submitted a SCR complaining of problems breathing,
stinging in his knees, right leg pain, right shoulder pain, acid reflux and a scratchy throat.
(D.E. 26-6, p. 52). He also requested another extension on his medically unassigned work
restriction. Id. NP Hudson saw Plaintiff the next morning, and she instructed him that he
needed to begin light exercise to build up his buttocks, leg and calf muscles. Id. at 51.
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She encouraged him to go to work to facilitate the light activity. Id. She also ordered
him an albuterol inhaler and encouraged him to chew his food thoroughly. Id. She did
not renew his medically unassigned work restriction. Id.
On May 6, 2010, Plaintiff submitted a SCR stating: “I have been having
complications & is out of inhalers.” (D.E. 26-6, p. 12). Dr. Stein examined Plaintiff that
same day for his complaints of chest pain. Id. at 10-11. Dr. Stein noted that he was
concerned that “something may have happened to [Plaintiff’s] stents,” and that Plaintiff
needed to be evaluated by HG Cardiology “soon,” and that he would personally look into
getting Plaintiff an appointment, which he did Id. at 10. Dr. Stein also indicated that he
would check with Mr. Webb about a cardiology appointment for Plaintiff, which he did.6
Id. at 3, 10.
On May 12, 2010, Plaintiff was seen in the HG Cardiology Clinic for complaints
of chest pain with no record of complaints about groin pain. (D.E. 26-1, Bowers’ Aff’t,
at ¶14). Additional testing was ordered. Id.
On June 1, 2010, Plaintiff submitted a SCR complaining of excruciating chest
pain. (D.E. 26-5, p. 281). However, he did not show up for his scheduled appointment
the next day. Id. at 280. On June 14, 2010, Plaintiff underwent a pulmonary function test
“which showed the absence of any significant degree of pulmonary impairment or
restrictive ventilation defect.” (D.E. 26-5, p. 271).

6

On May 29, 2010, Dr. Stein resigned as the McConnell Unit medical director and was not seen
by Plaintiff again. (See D.E. 26-1, Bowers Aff’t, at ¶14).
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On June 16, 2010, Plaintiff reported to the infirmary complaining of chest pain
when having to climb the stairs to get to his housing assignment on 3-row. (D.E. 26-5, p.
264). His housing restriction was permanently changed to ground floor only. Id.
On June 27, 2010, Plaintiff submitted a SCR complaining about hand pain from an
old boxing injury and burning eyes. (D.E. 26-5, p. 259). He did not complain of leg,
groin, or chest pain. Id. He was seen on June 30, 2010 and July 5, 2010, and diagnosed
with “allergies” and prescribed Naphcon (eye drops). (D.E. 26-5, 249, 252).
On July 12, 2010, Plaintiff was scheduled for a follow-up appointment at the HG
Cardiology Clinic; however, Plaintiff refused to go to the appointment complaining that
last time he was transported, he had to “pop nitroglycerin” because of the heat and
humidity, and he suffered shoulder pain from being handcuffed to another offender.
(D.E. 26-5, p. 235). On August 5, 2010, Plaintiff again refused to go to a scheduled
appointment at the HG Cardiology Clinic. Id., p. 226.
On August 9, 2010, Plaintiff submitted a SCR asking that he be transported to HG
in a van as opposed to a bus because of his “no humidity extreme” restriction. (D.E. 265, p. 224). On August 10, 2010, PA Declet met with Plaintiff and told him he was
determining whether Plaintiff could be seen via DMS (telemed) instead of transporting
him to HG for his cardiology appointment. Id. at 220. However, according to Mr. Webb,
“[c]ardiology does not see patients via DMS.” Id. at 210.
On August 19, 2010, Plaintiff submitted a SCR complaining that his groin had
“gotten worse on both sides.” (D.E. 26-5, p. 215). On August 21, 2010, Plaintiff was
examined by NP Hudson and she noted: “No visible abnormalities to groin. No pain on
10 / 21

palpitation. Right back muscle next to right scapula rigid. UA was negative.” Id. at 213.
NP Hudson’s assessment was muscular strain and groin pain. Id.
On October 19, 2010, NP Hudson saw Plaintiff and encouraged him to reconsider
traveling to HG for a cardiology appointment so that his complaints of chest pain could
be further evaluated. (D.E. 26-5, p. 172).
On December 31, 2010, Plaintiff submitted a SCR agreeing to travel to HG for a
cardiology follow-up appointment. (D.E. 26-5, p. 151). On January 24, 2011, Plaintiff
was seen by PA Echavarry for complaints of chest pain. Id. at 145. PA Echavarry
submitted a referral request for Plaintiff to be seen at the HG Cardiology Clinic. Id.
On April 18, 2011, Plaintiff was seen at the HG Cardiology Clinic for chest pain.
(D.E. 26-5, pp. 101-113). He underwent an echocardiogram for his complaints of chest
pain, but made no complaints about leg or groin pain. Id. His echocardiogram was
normal. Id. at 97.
On May 20, 2011, Plaintiff submitted a SCR complaining of pain in his groin.
(D.E. 26-5, p. 91). On May 23, 2011, he was seen by PA Echavarry who noted that
Plaintiff was in no distress and that a follow-up appointment at HG Cardiology was
already pending. Id. at 90.
On June 7, 2011, Plaintiff was seen by Dr. Whitt for complaints of groin pain and
incontinence. (D.E. 26-5, p. 83). Dr. Whitt prescribed Aspirin 325 mg, twice daily. Id.
at 77.
On June 20, 2012, Plaintiff was seen by Dr. Whitt for follow-up care. (D.E. 26-5,
pp. 48-49). Plaintiff complained about pain in his chest and testicles, and he was upset
11 / 21

because he had been to work in the garment factory. Id. at 48. Dr. Whitt assigned
Plaintiff a no-walking-more-than-500-yards work restriction, but nursing notes indicate
Plaintiff was upset because Dr. Whitt did not restrict Plaintiff’s walking to 100 yards. Id.
at 49. Dr. Whitt prescribed Plaintiff Nortriptyline for pain. Id.
On July 7, 2011, NP Hudson examined Plaintiff in response to a SCR complaining
about groin pain. (D.E. 26-5, pp. 22-23).

NP Hudson’s assessment was possible

prostatitis, urinary incontinence and neuropathy of Plaintiff’s groin and right leg. Id. at
22. Based on this assessment, NP Hudson prescribed Plaintiff Terazosin (1 mg) for the
treatment of an enlarged prostate. Id.
On July 12, 2011, Dr. Whitt saw Plaintiff for complaints of chest and left arm pain
when exposed to cold air. (D.E. 26-5, pp. 5-6). She reviewed the results of his recent
myocardial stress test, increased his nitroglycerin (Isosorbide), and gave him a permanent
“sedentary work only” restriction. Id.
On August 10, 2011, NP Hudson saw Plaintiff in response to a SCR complaining
that his Imdur (nitrate used to prevent angina attacks) was giving him headaches, body
aches, and pain to his groin. (D.E. 26-4, pp. 171-172). NP Hudson explained the risks
associated with not taking the Imdur, and Plaintiff decided to discontinue the medication.
Id. Plaintiff signed a refusal of treatment form. Id. at 170.
On August 16, 2011, Plaintiff requested to discontinue the Nortiptyline, prescribed
for his reported right groin pain. (D.E. 26-4, pp. 167-168). NP Hudson discontinued the
prescription at Plaintiff’s request. Id.

12 / 21

On August 23, 2011, NP Hudson saw Plaintiff for complaints of groin pain and
chest pain and his desire to be medically unassigned for work. (D.E. 26-4, pp. 163-164).
NP Hudson treated Plaintiff for a rash, but advised him that he should talk to Dr. Whitt
concerning his other medical complaints and his work restrictions. Id.
On September 8, 2011, Dr. Whitt saw Plaintiff for his complaints of groin and leg
pain. (D.E. 26-4, pp. 151-152). Dr. Whitt noted that Plaintiff had been evaluated at the
HG Cardiology Clinic one month before and was scheduled for another cardiac catheter.
Id. Dr. Whitt’s treatment plan was to continue Plaintiff’s current treatment plan pending
his cardiac catheter and consider restarting his Pamelor (for treatment of depression and
neuropathic pain) in one month (awaiting cooler weather). Id. Dr. Whitt also referred
him to HG’s Neurology Clinic. Id.
On September 28, 2011, Plaintiff underwent a heart catheterization with
angioplasty at HG. (D.E. 26-4, 120-133). Upon his return to the McConnell Unit, NP
Hudson submitted a referral request to the HG Cardiology Clinic for a follow-up
appointment ASAP. (D.E. 26-4, p. 84).
On October 10, 2011, Plaintiff submitted a SCR complaining of chest pain. (D.E.
26-4, p. 75). Dr. Whitt saw Plaintiff the next day where he complained of chest pain in
the form of a dull ache, as well as generally not feeling well and nasal congestion. Id. at
73-74. Dr. Whitt instructed Plaintiff not to take “cold busters” and prescribed him a nasal
saline spray. Id. at 73.
On October 26, 2011, Plaintiff was seen at the HG Cardiology Clinic for a followup care of his coronary artery disease (CAD). (D.E. 26-4, pp. 24-31). He complained of
13 / 21

fatigue and occasional chest pressure, however, he did not complain about groin or leg
pain. Id.
On November 2, 2011, NP Hudson performed a follow-up chart review after
Plaintiff’s HG Cardiology Clinic appointment. (D.E. 26-4, 12-13). NP Hudson noted
that Plaintiff had been on Aspirin (325 mg) for six months and Pravachol (1 mg) for one
year. Id. The next day, PA Echavarry saw Plaintiff for complaints of chest pain, his
request to have his restrictions removed, and his request to change the time of day he
took Plavix. Id. at 8. PA Echavarry did not remove his restrictions but did instruct him
to follow-up as needed “or sooner if not better.” Id.
On December 2, 2011, PA Echavarry saw Plaintiff for complaints of groin pain.
(D.E. 26-3, pp. 243-244). PA Echavarry noted that the patient had refills on all his
medications, was in no acute distress (NAD), and his “lungs clear heart normal rate and
rhythm. [sic].” Id.
On December 28, 2011, Dr. Whitt saw Plaintiff for complaints of sharp “heart
pains.” (D.E. 26-3, 232-233). She noted that he was in no acute distress (NAD) with a
regular heart rhythm and rate. Id. at 232. She increased his Prilosec and told him to
return to the clinic if he was not better in one to two weeks. Id.
On January 10, 2012, NP Hudson submitted a referral request for HG’s
Cardiology Clinic for a follow-up appointment as requested by Cardiology. (See D.E.
26-1, Bowers Aff’t at ¶ 29).

On January 11, 2012, NP Hudson saw Plaintiff for

complaints of chest pain and shortness of breath. (D.E. 26-3, pp. 225-226). Plaintiff also
requested NP Hudson remove all of his work restrictions so that he could get a job. Id.
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NP Hudson removed his work restrictions, ordered an EKG and lab work, and she
renewed his prescriptions for Nitroglycerin and Pravastin. Id.
On February 9, 2012, Plaintiff was seen by Dr. Whitt for complaints of sharp pain
and shortness of breath (SOB). (D.E. 26-3, pp. 213-215). Dr. Whitt gave Plaintiff a 30day medically unassigned work restriction because he complained he only had symptoms
when working in the garment factory, and she refilled his Nitroglycerin prescription. Id.
On February 22, 2012, Plaintiff was seen at the HG Cardiology Clinic for a
follow-up appointment for his CAD.

(D.E. 26-3, p. 103).

Upon his return to the

McConnell Unit, NP Hudson noted that Plaintiff had no acute needs and that his
Pravastatin had been increased to 80 mg. Id. at 102.
On March 12, 2012, Plaintiff underwent a Dobutamine Stress Echocardiogram,
following which, he was seen at HG’s Cardiology Clinic on March 26, 2012. (D.E. 26-3,
pp. 162-167). On March 27, 2012, NP Hudson noted that the stress test results were nondiagnostic due to an inability to achieve the target heart rate. Id. at 156.
On April 2, 2012, Plaintiff submitted a SCR complaining that he did not get the
job he wanted, and, therefore, he wanted his former work restrictions put back in place.
(D.E. 26-3, p. 154). PA Echavarry saw Plaintiff the next day and told him there was no
justification for reinstating certain work restrictions. Id. at 153.
On April 11, 2012, Plaintiff was seen by PA Echavarry after he refused to go to
HG Cardiology Clinic for a workup. (D.D. 26-3, pp. 142-145). PA Echavarry assessed
the following restrictions: lower bunk only; ground floor only; sedentary work only; four-

15 / 21

hour work restriction; no walking over 500 yards; no lifting over 25 lbs; no reaching over
shoulder; no repetitive use of hands; and no humidity extremes. Id. at 142.
On May 18, 2012, Dr. Whitt submitted a request for Plaintiff to have a nuclear
stress test at HG’s Nuclear Medicine Clinic. (D.E. 26-3, pp. 113-114). On May 24, 2012,
Plaintiff refused to go to the HG appointment for the stress test. Id. at 103-104.
On July 6, 2012, Dr. Whitt submitted a referral request for HG’s Cardiology Clinic
noting Plaintiff’s CAD, unstable angina, and his refusal to undergo the nuclear stress test.
(D.E. 26-1, p. 10, Bowers Aff’t, ¶ 33). The referral was returned by HG because there
was no indication for a Cardiology follow-up without the stress test. Id.
On July 12, 2012, Plaintiff agreed to go to HG for the stress test, and Dr. Whitt resubmitted the referral request. (D.E. 26-3, p. 75).
On July 31, 2012, Plaintiff reported to the infirmary with complaints that he could
not get to a “comfortable zone,” and was examined by PA Echavarry. (D.E. 26-3, p. 63).
PA Echavarry noted that Plaintiff was in no acute distress and that his heart rate and
rhythm were normal. Id. He ordered lab work and a follow-up appointment. Id. On
August 16, 2012, Plaintiff had a follow-up appointment with PA Echavarry. Id. at 44.
Plaintiff’s lab work revealed that his anemia had improved. Id.
On February 5, 2013, Plaintiff submitted a SCR complaining about groin pain and
that his keep-on-person (KOP) medication had been stopped requiring him to go to the
pill window for his medication. (D.E. 26-2, p. 237). On February 6, 2013, Plaintiff was
seen in the infirmary by PA Shollenbarger who noted that Plaintiff was not in any distress
and the examination of his right groin area was negative/benign. Id. at 235-236. PA
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Shollenbarger also noted that his medication was current and that Plaintiff should alert
him if his KOP medication had not been received by mid-February so that it could be reordered if necessary. Id. “It should be noted that the patient had the option to go to the
pill window as needed for his medication.” Id.
On February 11, 2013, Plaintiff was taken to the HG Cardiology Clinic for his
CAD and worsening chest pain with SOB, and was seen by Dr. Ahmad and Dr. Calvin.
(D.E. 26-2, pp. 125-144).

Tests confirmed severe diffuse micro and macrovasular

coronary disease with extensive collateralization and rapid progression, and three vessels
with blockage. Id. Defendants ordered PCI with stent placement. Id. Plaintiff also
advised the doctors of his right groin pain, stating that it worsened with movement and
caused urinary incontinence. Id. Defendants noted that Plaintiff’s distal pulse was intact,
and they did not observe swelling. Id. They recommended to follow-up with neurology
for evaluation of the pain. Id.
On February 15, 2013, Plaintiff was seen by LVN Lyles at the Darrington Unit for
complaints of chest pain. (D.E. 26-2, p. 164-165). His breathing and vitals were normal,
and Dr. Hulipas advised giving the patient regular Tylenol. Id. On February 22, 2013,
upon his return to the McConnell Unit, PA Echavarry conducted a chart review,
reordered Plaintiff’s medications, and ordered lab work in preparation for his upcoming
Chronic Care Clinic appointment. Id. at 157-158. On February 27, 2013, PA Echavarry
saw Plaintiff for complaints of chest pain and noted Plaintiff was in no distress but did
have upper respiratory congestion and a sore throat. Id. at 152. PA Echavarry ordered
several medications and instructed Plaintiff to return as needed or sooner if not better. Id.
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On March 28, 2013, PA Echavarry saw Plaintiff for pain to his right inguinal area.
(D. E. 26-2, p. 111). Plaintiff told PA Echavarry that he believed he was injured when
the heart catheter was placed in via his thigh in December 2009 at HG.

Id.

PA

Echavarry examined Plaintiff and noted that there were no inguinal hernias, and he had
questionable tenderness to the right inguinal area with palpation. Id. PA Echavarry
ordered an x-ray of Plaintiff’s right hip which was taken on April 3, 2013. Id. at 109.
The x-ray revealed a small, nonspecific soft tissue calcification projecting in the medial
(inside surface) right groin area. Id. According to Dr. Bowers, this is usually due to a
calcified lymph-node and is a non-specific finding on an x-ray. (D.E. 26-1. p. 11,
Bowers Aff’t at ¶ 36).
On April 15, 2013, Plaintiff was seen by PA Echavarry at his Chronic Care Clinic
visit. (D.E. 26-2, pp. 93-103). Based on this appointment and Plaintiff’s complaint that
he had suffered the injury to his groin three years prior during catheterization and had
suffered urine leakage ever since, PA Echavarry submitted a referral request to HG
Cardiology Clinic. Id. at 85.
On July 3, 2013, Plaintiff submitted a SCR complaining about pain in his testicles.
(D.E. 26-2, p. 74). On July 5, 2013, PA Echavarry saw Plaintiff and noted that he was in
no acute distress and was scheduled to be seen by HG Cardiology “in the near future.”
Id. at 72.
On August 14, 2013, Plaintiff executed his Original Complaint raising his Eighth
amendment claims of deliberate indifference to his serious medical needs. (See D.E. 1, p
7).
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On August 26, 2013, Plaintiff was seen at the HG Cardiology Clinic. (D.E. 26-2,
pp. 56-64). The Cardiology Clinic referred Plaintiff to HG Neurology. Id.
On November 14, 2013, Plaintiff requested a cane to ambulate due to his leg/groin
pain. (D.E. 26-2, p. 17). On November 19, 2013, he was seen by Dr. MerchantMcCambry regarding his request for a cane. (D.E. 26-2, pp. 12-14). Plaintiff complained
of burning and stinging to his right leg from the hip/groin area. Id. Dr. MerchantMcCambry noted that Plaintiff had upcoming appointments at both HG Neurology and
HG Cardiology, and she issued him a cane for 120 days. Id.
On December 12, 2013, Plaintiff submitted a SCR complaining about testicle pain.
(D.E. 26-2, p. 6). On December 13, 2013, PA Corbett saw Plaintiff. Id. at. 4-5. PA
Corbett opined that Plaintiff’s hip x-ray was abnormal and that was why Plaintiff was still
experiencing pain and urine leakage. Id. PA Corbett ordered Tylenol (325 mg) for
Plaintiff’s pain. Id.
On February 4, 2014, Plaintiff was seen at HG’s Neurology Clinic. (D.E. 26-1, p.
12, Bowers Aff’t at ¶ 40). Plaintiff had no objective weakness or numbness and his back
pain was unrelated to his present groin pain. Id. The neurological assessment was
neuropathy, likely from femoral nerve injury 2/2 local trauma on catheterization
insertion. Id. Plaintiff was prescribed Gabapentin (300 mg) three times a day and a
recommendation was made for medical boots. Id.
B.

Plaintiff’s claims fail.

Plaintiff’s medical records refute his claims. First, his medical records reveal that
he is receiving abundant and appropriate care. To the extent Plaintiff believes a faulty
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catheterization procedure in June 2009 injured him, such an allegation of past harm does
not constitute “impending harm” for purposes of § 1915(g). Abdul-Akbar, 239 F.3d at
315. Moreover, Plaintiff does not suggest that Defendants are presently denying him
medical attention for his serious medical needs, and his medical records squarely refute
any such inference as he is being seen routinely by both Chronic Care and specialty clinic
personnel, and receiving medication. The fact that Plaintiff disagrees with the course of
treatment or desires different medication does not equate with imminent physical harm
for purposes of § 1915(g). He is monitored by medical staff and those professionals are
addressing his needs. There is no indication that Plaintiff is in any type of danger to
excuse him from the § 1915(g) three-strikes bar.
V.

Conclusion.
Plaintiff has lost the privilege of proceeding in forma pauperis and he has failed to

demonstrate that he is in imminent danger of physical harm. Accordingly, Plaintiff’s
application for leave to proceed i.f.p. (D.E. 2) is DENIED, the order conditionally
granting i.f.p. is set aside (D.E. 10), and this action is dismissed without prejudice.
Plaintiff may move to reinstate this action within 60 days of this Order, but only if the
$400.00 filing fee is paid simultaneously with the motion to reinstate. However, as noted
above, Plaintiff has been duly advised of this Court’s current opinion of his claims based
on the record before it, and this is without considering Defendants’ valid defenses,
including the statute of limitations, lack of personal involvement, qualified immunity, and
the like, and the Court’s observation that Plaintiff would almost certainly obtain another
“strike” should he proceed on these current claims.
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ORDERED this 2nd day of May, 2014.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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