Mickey III v. Wexford Health Sources, Inc. et al, No. 8:2015cv03876 - Document 17 (D. Md. 2017)
Court Description: MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/22/2017. (kns, Deputy Clerk)(c/m 3/22/17)
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Mickey III v. Wexford Health Sources, Inc. et al Doc. 17 > 'I IN TilE UNITED STATES DISTRICT COURT FOR TIlE ()JSTIUCT OF MARYLAND Southern Division b * EUGENE MICKEY III, #3038555, #.•17152 * Plaintiff, Case No.: G.H1-15-3876 * ,'. * WEXFORD (STAFF at MCHI), el 111.,1 Defendants. * * * * * * * * MEMORANDUM Eugene Mickey III ("Plaintiff') * * * * * * OJ'INION is an inmatc incarccratcd at the Maryland Correctional Institution in Hagerstown. Maryland ("MCIH"). Pcnding before the Court is his pro se Complaint filed pursuant to 42 U.S.c. ~1983. alleging that Defcndants provided him with inadequate post-surgical wound care. ECF No. I ("Complaint''). Defendants We:d,mlilealth Sources. Inc" Lori Slavick. P.A .. and Richard Sam pong. P.A .. by their counsel. have filed a Motion to Dismiss or. in the Alternative. Motion lor Summary Judgment. ECF No.9. and PlaintilTliled a Response in opposition. ECF No. 13. Delcndants filed a Reply to Plaintiirs Response. ECF No. 15. Alter considering the pleadings and exhibits. the Court concludes a hearing is unnecessary. See Loc. R. 105.6 (D. Md. 2016). For the reasons that 1()1I0\\'.Defendants' Motion to Dismiss or. in the Alternative. Motion for Summary Judgmcnt. ECF NO.9 shall bc granted. I Defendant is assumed 10 be Wexford Ilcalti, Sources. Inc .. a private corporation \\hich provides Illcdicnl care to inmates under contract with the State of Maryland. The Clerk shall amend the docket accordingly. A second Defendant's surnallle is Slavick. The Clerk shall alllend the docket accordingly. Dockets.Justia.com The claims against Wexford will bc dismisscd and summary judgment against Defendants I. is grantcd as to claims Slavick and Sam pong. BACKGROUND On Deccmber 16.2015. Plaintiff filed a Complaint alleging that Defendants' provided inadequate wound care alier his surgery to repair a torn Achilles tendon. ECF No. I. Plaintiff sceks an unspccificd amount of monetary damages for his pain and suffering. Ecr No. I at 3.2 PlaintilT states that he ruptured his Achilles tendon in February of 20 15. Ill. On .June 1I. 2015. he had surgery to repair the rupture at Bon Secours Ilospitai. Id Plaintiff claims that he tested positive f(Jr E Coli and pseudomonas as a result of improper medical trcatmcnt. lei. Plainti 1'1' asserts that the surgeon sent a progress note on August 21. 2015. to inl(JrIn Dcfendants IJ. Plaintiff docs not provide a copy of that progress notc or "what to do:' but it was disregarded. specify what the surgeon recommended. recommendcd mcdications. Druckman. did not prcscribe but Illils to indicate what mcdicines were recommended. treatment amounted to malpmctice. Defendants He further allcges Delendants and that his IJ. Illed 149 pages of Plainti tr s medical records and the declaration of Dolph M.D .. Acting Regional Medical Director at MCIII. in support of their dispositive motion. Ecr No. 9.4: ECF No. 9.5. Defendants' verified exhibits detail the post.surgical treatment provided to Plainti fC and the records are summarized wound below. Alier his .Junc 11. 2015 surgery at Bon Secours Ilospitai. Plainti ITwas admitted to the infirmary at .Jessup Correctional tmnslcrred Institution. ECF No. 9.5'i 6: ECF No. 9.4 at 9. Plaintiff was to the MCIH infirmary on.June 13.2015. and was secn by Belay Tessema. M.D. ECr No. <).5'i 6: lOCI"No. <).4at 12.15. The medical rcport indicatcs PlaintitThad Pin cites to documents tiled on the by that systelll. .::! COlll1"s no Icvel".no electronic filing system (CM/ECF) refer to the page numbers generated 2 swelling at the wound site. no discharge. no bleeding. and no erythema. ECF No. 9-5 '16: ECF No. 9-4 at 12. Dr. Tessema indicated the injury and surgical site wcrc healing and stablc. and prescribed Robaxin. Acetomenophin-codeine. Percocct. Ketlex. and Ibuprofen for Plaintiff. ECF No. 9-5 ~ 6: ECF No. 9-4 at 13. Dr. Tessema also ordered daily wound cleaning with normal saline solution and dry dressing changes. ECF No. 9-4 at 13. Ketlex. an antibiotic. was prescribed prophylactically as PlaintitThad no symptoms ofinfcction at thc wound sitc. ECF 9-5 ~ 6. On June 13.2015. Tamara Medina. R.N. changcd Plaintiffs '0. dressings. and noted no symptoms of infection. ECF No. 9-4 at 15. Plainti ITrcmained in the inlirmary until June 16. 2015. ECF No. 9-5 ~ 7. Medical providers monitored his vital signs and changed his dressings. ECF No. 9-5 16-20. On Junc 16. 2015. Liberatus DeRosa. M.D. examincd was continuing No. 9-4 at wound. observed that it to improve. and noted no symptoms of infection. ECF No. 9.5 ~ 7: ECF No. 9-4 at 21-24. Dr. DeRosa continued Plaintiff-s complaints discharged Plaintiffs 'i 7: ECF Plaintiffs of continuing Percocet prescription until June 22. 2015. to address pain. ECF No. 9-5 ~ 7: ECF No. 9-4 at 24. Dr. DeRosa PlaintilT Irom the infirmary with instructions to return in three days fix a follow-up visit. ECF No. 9-5 ~ 7: ECF No. 9-4 at 24. Dr. DeRosa also ordcred daily cleaning of the wound. instructed PlaintilTto perform toe pointing exercises. continued his medications. and directed him to minimize walking. ECF No. 9-5 ~ 7: ECF No. 9-4 at 24. Plaintiff was given crutches. placed on "feed in status" so that his meals were delivercd to his cell. and instructed to wear a splint on his right ankle. ECF No. 9-5 '1 7: ECF No. 9.4 at 24. The Ketlex prescription allowed to expire on Junc 17.2015. in view ofPlaintitrs was improved healing and in the absence of any symptoms of infection. ECF No. 9-5 ~ 7: ECF No. 9-4 at 24. On June 17.2015. Plaintiff was returned to the general prison population. ECF No. 9-5 ~ 7: ECF No. 9-4 at 26. , .' On June 24. 2015. when PlaintilTwas seen by Matthew 10 out of a possible 10. ECF No. 9-4 at 31. He eomplained Fairall. R.N .. he rated his pain as that his medieation 1<1. Plaintiffs and he was having a hard timc getting the drcssing changcd. had expired on the previous day. June 23. 2015.1d. prescriptions medical provider for a medication cvaluation. Pcrcocet and Baclofen Fairall referred Plaintiff to a ordcred Tylenol flJr pain. and infi.JrIncd him that Id. PlainlilTwas daily wound care had been scheduled. had becn stopped listed as a "no show" for his nursing sick call visit on July 7. 2015. Id. at 33. On July 8. 2015. Jonathan Thompson. M.D. saw Plainti 1'1' an urgcnt providcr visit. flJr Mickcy reported that his right loot hyperextendcd while he was trying to climb stairs to thc and he fell and hurt his lower baek. ECF No. 9-5 dispensary. '18: ECr No. 9-4 at 34. He reported that he slipped on water. ECr No. 9-4 at 36. Jessica Smith. R.N reported Plaintiffs aee bandages were soaking wet. and the dressing was changcd. 36. Smith observed ECF No. 9-5 ~ 8: ECr No. 9-4 at +2 pitting edcma at the right foot. but observed 8: ECr No. 9-4 at 36. Dr. Thompson right knec. ECF No. 9-5 with his medications '1 8: ordered x-rays of Plaintifrs no infection. ECF No. 9-5 ~ lower spine. right ankle. and ECl' No. 9-4 at 34. 36. Plaintiff was placed on bed rcst and feed-in. to bc delivered to his eell. and was prescribed Tramadol HcL for pain. ECF No. 9-4 at 34. The daily dressings instructed to continue Id. at 34. 36. Dr. Thompson using crutches. three weeks with Dr. Krishnaswammy. cell using his crutches. dressing and an orthopedic ECF No. 9-5 ~ 8: Ecr On July 10.2015. Defendant surgeon.!d 325 mg. of Tylenol and were continued and PlaintifTwas ordered a follow-up visit in at 34. PlaintifTrcturncd to his No. 9-4 at 34-37. Lori Slavick saw PlaintilT during provider rounds. Plaintiff repOlted feeling better. ECl' No. 9-4 at 38-39. The results of his x-rays were still pending.1d. PlaintifTasked to go to the commissary. but was informed 4 that because he was on feed-in status he could not go. /d He was inli.lI'Ined that his safety was at risk as demonstratcd days prior./d Latcr that day. Matthew for schedulcd wound care. PlaintilTcomplained 40-41. Plainti!rs temperature I'airall. R.N. cxamined /d PlainlitTwas was 100.8 and his pulse was 110. administered thc prison dispensary of aches. chills. a headache. and dizziness. /d at Id. Fairall contacted Dr. Nimely 400 mg of Motrin and medical tests were for further orders. III. Plaintiff was administered ordered. PlaintilTat by his fall two the lirst dose of Motrin at the dispensary and. alier one hour. his fever reduced 10 99.2 and his pulse reduced to 98.9. III. Plaintiff was told to fi.)lIow up in the morning. and returned to his housing unit in stable condition. On July II. 2015. Dr. Tessema leg. swelling. Plaintiff's examined PlaintilI who complained wound had opened. and it was tender and swollen. cellulitis. No. 9-4 at 42-43. He prescribed and ordered Plaintirfbe Baclofen. admitted ECF No. 9-5'i 9: ECl' No. 9-4 al an infection. at the wound site. Ecr Clindamycin to the inlirmary I leI. Rocephin. 9-4 at 42-43. lie also ordercd a comprehensive No. 9-4 at 42-43. While in the infirmary. leg pain. ECl' No. 9-4 at 44-5 f. Ilis temperature intravenously. ECl' No. 9-4 at 45-46. Sampong Ausherman. Tramadol and Potassium Chloride. blood laboratory PlaintilTrepol1ed measured ECl' No. 9-5 ~ 9: ECl' No. test panel. ECF No. 9-5'i 9: lecling dizzy. slight chills and 100.9. and he was administered It/. at 44. On July 12. 2015. Defendant Plaintiffs No. 9-5 ~ 9: ECr with bed rest and daily dressing changes using sterile saline solution and a clean dry dressing ("wet dry dressing"). antibiotics of pain in his right and fever. ECF No. 9-5 ~ 9: ECF No. 9-4 at 42-43. Dr. Tessema observed that 42-43. Dr. Tessema diagnosed Ecr III. recorded and Rocephin R.N. saw Plaintiff Sam pong saw PlaintifT during infirmary rounds at I :31 p.m. Plaintiffs prescriptions. wound stalus as stable and continued III. That evening at 5:48 p.m .. Laura Ii.)rskilled nursing care. /d at 47. Plainti ITcomplained 5 of pain from his ankle to his calC and Ausherman administer Tylenol #3. Id. Ausherman approximately separated. alll:46 contacted observed Dr. Ottey. who gave a verbal order to Plaintiffs wound had a necrotie area 1.5 inches long and 0.5 inehes wide. Jd Several inches of the suture line wcre approximately p.m .. Plaintiffs 2mm of the length of the wound. and were pink and draining. Jd Later. dressing was changed again because it was dripping onto the bedding. Jd at 48. On July J 3.2015. Cynthia Martin. R.N. saw Plaintiff for skilled nursing care. ECF No. 4 at 49. She reported that PlaintilTs intact when it was changed. minimum swelling. appetite was good. that his dressing was clean. dry. and and that he was able to wiggle all his loes. Jd Martin noted no pitting. and no redness. Id. Dr. DeRosa. who saw PlaintilTiater day. reported that the infection was improving DeRosa wrote that Plaintiff"had and PlaintilThad Jd There was wound dehiscence DeRosa prescribed indicated no fever. but noted PlaintilTwas a short visit in infirmary and was discharged up] and during that time infection seemed to develop:' with tfull(lllow- Id. at 50. DcRosa said the tendon repair and PlaintilThad Jd at 50-51. There was discoloration surgical debridement. that same of his right ankle and was unable to tlex his l(lOt. Jd at 50-51. in severe pain with any movement was abnormal. <)- a deep space infcction needing around the entire incision. Jd Lovenoz and "wet dry" dressing changes twice daily. Id. at 5 J. DeRosa no culture reports were noted on the medical chart to confirm the accuracy of the antibiotics administered. Plaintiff-s condition and he ordered lab studies. Id. at 50. DeRosa listed his assessment as "uncontrolled On July 14.2015. leg:' Id. at 51. cellulitis/absccss Laura Ashennan. R.N. noted Plaintiffs hi. at 52. She noted serosanguinous drainage reported Plaintiffs was not measurably wound inlection of wound culture was completed. Irom the wound. Jd Later thaI day. Dr. DeRosa 6 improved. but was not worsening. Jd at 53. DeRosa discussed with Dr. Krishnaswammy that 20 cc of pus with slight pressurc was expressed from the wound. Id. at 54. He noted Krishnaswammy wanted to sec Plaintiff because he had worsened since his last follow up visit. !d at 55: ECF No. 9-5 ~ 9. Plaintifrs blood tcst results wcre returned and revealed infection with E. Coli and pseudomonas bacteria. ECF No. 94 at 58.61: ECF No. 9-5 ~ 9. On July 15.2015. Dr. DeRosa noted Plaintiff was running a low grade tempcrature. ECF No. 9-4 at57. Plaintifrs calfhad slight induration suggcsting spread of infection and resistancc to the medications Rocephin and Clindamycin. but the wound had shown some improvemcnt in thc past 2 days. Id. DeRosa expressed concern that although PlaintifTwas scheduled to bc seen by Dr. Krishnaswammy on Friday. he might need to be seen sooner. and therefore asked the medical director to examine Plaintiff. Id. DeRosa changcd Plaintiffs antibiotic to Vancomycin He\. Id. at 58. On July 16.2015. Defcndant Sampong examined PlaintitT.1d. at 62. He reported the wound was improving and recommended warm compresses. Id On Friday . .Iuly 17.2015. Defendant Lori Slavick examined Plaintiff. Id. at 64-65. She noted that Plaintiff had pain and swelling in his right calf. Id. at 64. I.ater that day. Plaintiff expressed concern to Nurse Aushernmn that the intravenous site should be changed and initially refused his antibiotic medication. Id at 66. Ausherman explained that she could not start a new intravenous site without a medical order. Id Plainti ff changed his mind and the antibiotic was administered. Id. Plaintiff rated his pain as 10 out of 10 and said he ambulated with crutches. Id. As noted. Dr. DeRosa's July 15.2015 note had anticipated that PlaintifTwould be seen by Dr. Krishnaswammy that day. a Friday. Id at 57. The record docs not reflect whether Plaintiff was seen that day by Dr. Krishnaswummy. 7 On July 18.2015. continuing Dr. Tessema pain and swelling. examined Plaintiff. It!. at 67-68. Tessema noted Plaintiffs and a yellow and white discharge from the wound site. Id. at 67. Nurse Cynthia Martin saw Plainti 11'for skilled nursing earc. Id. at 69. Plainti tT was administered a Vancomycin test to monitor levels of the antimicrobial drug in the blood. It!.; lOCI"No. 9-3 at 11 n.23. Martin recorded that Tessema was aware of the results and indicated the Vancomycin would be adjusted. lOCI"No. 9-4 at 69. On July 19. 2015. Malthew Carpenter. reported that PlaintitTwas irregularly-shaped. throughout. awaiting a PICC 5.4 cm ulceration changed line. Id. Carpenter Plainti tT. It!. at 70-71. Carpenter obscrved the wound was an with red. yellow. and pink hard exudate scaltered It!. The wound was surrounded 9-3 at 11 n.24. TPP is a rare blood disorder throughout 3 P.A .. examined by a mild thrombocy1openic purpura (TPP). lOCI"No. in which blood clots limn in small blood vessels the body. and can limit the now of blood to the body's organs. Id. Nurse Martin Plaintiffs dressing that evening. and noted a purulcnt yellowish brown drainage. ECF No. 9-4 at 72. Plainti ff rated his pain as 7 out of 10. Id. The results of Plainti ff s wound culture were listed as still pending. Iti. at 70-72. On July 20. 2015. Nurse Martin reported that PlaintilT had no lever. changed his dressing. and continued his antibiotics. Id. at 73. Martin noted a telemedicine for I :00 p.m. (1300 Ill'S.) to discuss Plaintiffs Dr. DeRosa examined Cipro. an antibiotic. wound evaluation Plaintiff during intirmary conlerence and treatment. rounds. and observed was scheduled Id. That cvening. that Plainti ff had started on the previous day. Iti. at 74. Dr. DeRosa saw increased wound drainage and some improvement in the gastrocnemius Cipro. Id. The culture report indicated muscle. a muscle in the calt: possibly due to the 10 coli and pseudomonas. both of which are sensitive to A PIce Iinc is a percutaneously inserted central cath~tcr. A Pice is used when the patient needs intravenous (IV) medical treatment over a long period of time or if blood draws done using the morc cOlllmon mcthod have become di flicult. See https://mcdl ineplus.gov/cncy/patienlinstruct ionsIO00461.htlll. J 8 Cipro. Jd. Dr. DeRosa reported that Dr. Atnfu "did telemed at 1 pm and picuture [sic J takcn of wound so hc could communicatc with DR (sic) Krishnaswammy. Apparcntly pt is to go to 13SII [Bon Secours Hospital] fl)r surgical dcbridcmcnt since tendon infection can bc bad due to poor blood supple [sic!."' Jd. DeRosa indicated that therc may be difficulty transporting Plaintiffat that timc. but the schcdulcr would try to arrangc for custody stan'to transfer Plaintiff to the 13SII early in the morning. Id.: ECr No. 9-3 at 12 nn.25 & 26. On .Iuly 21. 2015. Plainti ITwas transported to Bon Sccours Hospital fiJI" surgical dcbridcmcnt ofthc wound. ECF No. 9-5'i 12. Dr. Druckman attcsts thc procedurc was indicated duc to risks inherent in a tendon infection due to low blood supply to the tendons. Id. Plaintiff returned to the MCIH infirmary thc samc day. ECr No. 9-4 at 75-77. Kathlecn McCauley. RN providcd skilled nursing care to PlaintifTupon his return. Id. McCauley indicatcd the anticipated plCC linc was not insertcd but that Plaintifrs wound was dcbridcd and the suturcs were rcmovcd.ld. Thc dressing on Plaintitrs right anklc was dry and intact. Id. On July 22. 2015. Dr. DeRosa examincd PlaintifTin thc infirmary. Jd. at 78-79. DcRosa noted that thc ccnter tissue of Plaintiffs wound was removed, and that thcrc was no redness or wannth around the lesion. Jd. at 78. He observed that the wound was draining a lot of serosanguinous. but no pus. 1<1. On July 23. 20 IS, Nursc Cynthia Martin drcsscd the wound. noting a moderatc amount of serosanguinous drainage, a decrease in rcdncss and swclling, and no odor. Jd. at 80. Plaintiff rated his pain level at 8 out of 10. Id. Dcfcndant Sam pong cxamined Plaintiff during infirmary rounds. Id. at 81-82. Sam pong notcd thc wound was unchangcd and indicatcd that Plaintiff would bcgin topical oxygen thcrapy ("'TOr') that day. Id. at 81. Haydce Rawley. R.N. later changed Plaintiffs drcssing and applicd TOT. Id. at 83. Rawley rcported PlaintilTtolerated TOT 9 well. Id. On July 24. 2015. Nurse Ausherman observed serosanguinous drainage on Plaintiffs dressing with some bloody drainage on the foot outside the dressing. Jd. at 84. There was no odor. Jd. Plaintiffs ankle was edematous and erythematous above the dressing. Jd. She applied TOT. Jd. Ausherman described the site as a beefy red wound that included a thick yellow mucous plug. Jd. On July 25. 2015. Dr. Tessema observed the wound site was healing and there was less swelling. Id. at 86. On July 27. 2015. Dr. DeRosa noted that Plaintiffs calfhad improved but was still painlul. Id. at 88. The wound was healing and tilling in. but Plaintiff was concerned because oxygen therapy was not provided over the weekend. Jd. DeRosa explained that the therapy had been ordered only lor weekdays. and they were out or oxygen that day. Id. Moving Plaintiff back to the general prison population lor wound care was delayed until the wound was checked and possibly alier the liJllow-up visit with Dr. Krishmaswammy. Id. at 88-89. On July 28. 2015. Dr. DeRosa examined Plaintiff who reported Ultram did not rclieve his pain and requested Tylenol #3. Id. at 90. PlaintilTreported decreased hardness in the lower calf and decreased pain. Jd. DeRosa observed Plaintiffs wound was improving and there were no signs of infection. Id. On July 29. 2015. Dr. DeRosa indicated drainage was observed when Plaintiffs dressings were changed. Id. at 92. He continued Plaintiffs Lovenox (an anticoagulant) prescription and oxygen therapy. Id.: ECr No. 9-3 at 4 n:9. Plaintiffs dressings were changed twice a day. lOCI'No. 9-4 at 92. On July 31. 2015. Dr. Thompson saw Plaintiff during infirmary rounds. Id. at 93-94. lie 10 noted that Plaintiff continucd at to receive oxygen therapy and that he did not complain of pain. Id 93. On August I. 2015. Dr. Tessema observed the wound was healing and the infection was lei. at 95. Plaintiff prcscnted complaints resolving. It!. Tesscma changed thc antibiotic to Augmcntin. wound. On August 2. 2015 . .Ianine Grirtith. 98. PlaintifT complained perli.mning regimcn. and pink wound edgcs. approximately Sensation Id at 95-96. P.A. saw PlaintilTduring infirmary rounds.!d of his anklc. It!. Ilis pain at the time was well controllcd on thc It!. Grirtith observcd the wound as pink/red with becfy granulation It!. There was a small central area of dead tissuc (cschar) of I cm x 1.5.diameter and a small amount of discharge from the wound. was intact to sharp and dull touch and no pus or bleeding was observed. On August 3. 2015. Defendan\ Slavick noted his pain was moderatc On August 4. 2015. Plaintiff pseudomonas Slavick examined PlaintilI and Klcbsiella attests that during collegial It!. !d at 97-98. noting that his oxygcn thcrapy It!. at 99-100. Plaintiff exprcssed no ncw complaints. was continuing. It!. at 99. Defcndant and his status was stable. !d s laboratory culture results showed the presence of strains of bacterial infection. discussion was possibly due to fecal contamination. in utilization ECF No. 9-5 ~ 10. Dr. Druckman management it was presumcd Id E Coli. pseudomonas. the infection and Klebseilla bactcria arc bacteria in the body in low amounts and may bc found in divcrse cnvironmcnts. Patients with opcn wounds. illness. or reduced rcsistance bactcria although healthy individuals otherwise strains of pseudomonas at 97- about the tightness of his Achillcs tendon. Id at 97. Plainti ITwas simple strctching current medication common of pain and his leg was swollcn ncar thc and klebsiella It!. are at greater risk of infection by thcse can also become infectcd. Id Becausc certain are becoming antibiotic II rcsistant. carcfulmonitoring of treatment results is important to determine whether alternate antibiotic medications should be selected. Id. Druckman explains that during the course or his inlirmary admission. Plaintirfs antibiotics were adjusted to optimizc results. Id. at ~ 11: ECF No. 9-4 at 102. Dr. DeRosa diseharged Plaintirf Irom the MCIII inlirmary on August 5. 2015. ECT No. 9-4 at 103. DeRosa summarized Plaintiffs wound history. including the asscssment that after surgery and a brier initial stay in the inlirmary. Plaintirr was dischargcd on June 16. 2015 to the general population with instructions Ill[ daily wound care. which PlaintitT may have missed. Id. DeRosa further asserted that Plaintiff had developed a superlicial incision dehisccnce and presumably contamination led to an abscess under the Achillcs tendon repair. Id. DeRosa also noted that the wound was healing and oxygen therapy had been applied. Id. DeRosa ordered this treatment to continue until Plaintiff was seen by Dr. Krishnaswammy. Id. at 103-05. DeRosa continued PlaintilTs daily wound care and Lovenox until he saw Dr. Krishnaswammy and was able to walk with lilll weight-bearing. Id. DeRosa ordered that an appointmcnt with Dr. Krishnaswammy be scheduled for PlaintilI ItI. On August 18.2015. Defendant Slavik saw Plaintiff: who complained of pain in his right leg. Id. at 106. Plaintiff asked to be taken ofT reed-in status. against medical advice. ItI. Slavik assessed his condition as stable. /d.. On August 24. 2015. PlaintilT returned from 130nSecours Ilospital alier his !l)llow-up visit with Dr. Krishnaswammy. ItI. at 115. Erica Alexis. LPN wrote on Plaintiffs medical chart that his wound was cleaned with sterile solution and a non-adhcrent drcssing was applied. there was serous drainage without a bad odor. and there was no swelling. Id. PlaintilT did not have a revcr and he rcturned to his housing unit using crutches. Id. On August 28. 2015. Defendant Slavick saw PlaintifTto 101l0\v-upwith Dr. 12 Krishnaswanuny's recommendations. including daily dressing changes. use of an ankle hrace and crutches. and a continuing regimen of antibiotic and pain medication. /d. at 119-20. Krishnaswammy also recommended gentle rangc of motion (ROM) exercises. but no physical therapy until the wound healed. /d. On August 31. 2015. DeRosa saw Plaintiff. DeRosa obscrved the wound was essentially closed and discontinued furthcr oxygen thcrapy. /d. at 122. On Septembcr 14. 2015. Erica Alexis. LPN cleaned Plaintifrs wound and applied a new dressing. /d. at 123. She noted mild swclling around thc wound area and Plaintiff complaincd of sorcncss. /d. She referred him to a mcdical provider lilr cvaluation. /d. Whcn Alexis saw Plaintiff on Scptember 15.2015. she noted that Plaintiff walked into thc medical room with a slight limp and without his crutches. 1<1. at 124. On Septcmber 17. 2015. Defendant Sampong evaluated Plaintifrs wound./d. at 125. Sampong's assessment was that the wound was healing well. 1<1. Plaintiffrcportcd a mild discharge from thc aflected area. 1<1. On Septcmber 23.2015. a tclcmcdical conlercnce was conducted during which Dr. Krishnaswammy rccommended continuing daily drcssings. use of crutchcs and an anklc brace. pain and antibiotic mcdication. and a filllow-up appointmcnt in three wceks. Krishnaswammy said Plaintiff could pcrform gcntle ROM excrcises. but did not rccommcnd physical thcrapy./d. at 126. On Octobcr 4. 2015. I'laintiffwas seen at the dispcnsary lilr wound carc. 1<1. at 131. It was not cd that he had misscd his last 3 appointments. Jd PlaintilTwas remindcd ofthc importance of complying with recommendcd wound carc. 1<1. At this timc. he complained his wound was painful. /d. Thc wound was thcn c1caned and the dressing was changed. Jd 13 On Octoher 6. 2015. Plaintiffs telcmedicinc conferencc. attcndcd wound care follow-up hy Drs. Getachcw was again discussed wound dressing. heginning at 137-38. Sampong physical thcrapy. and following 2. 2015. Sam pong examined On November indicatcd continuing daily up in 5-6 weeks. Id at 132-33. 135. Plaintiff for complaints the wound had improved. thc affcctcd area. but denied other symptoms. Id. at 132-34. Thc and Krishnaswammy. wound was hcaling hut still painful. Id. at 132. Thc doctors rccommendcd at a of ankle soreness. Id Plaintiff reported a mild discharge from Id at 137. Sampong referred Plaintiff to a providcr f()r wound carc. Id at 138. 5. 2015. Dr. Tesscma examincd On Deccmber had resolvcd. Plaintiff. Tesscma ohservcd thc cellulitis hut notcd Plaintiff had an opcn wound on his postcrior right anklc. Id. at 143. or swclling and he had no fever. Id There was no discharge 8. 2015. Plaintiff returned his crutches to thc mcdical officc. Id at 145. Ilc On Dcccmber walkcd out without cxpressing any complaints. Id 18. 2015. Sam pong saw Plaintiff I()f wound care. Id at 146-47. Plaintiff On Dcccmber rcp0l1ed that the wound was healing. Id at 146. Sampong ordered daily dressing changes until Id healing was complctc. On January 21. 2016. Dr. Tessema examined small hcaling wound on Mickcy's Plaintiff~ Id. at 147-48. Tesscma right anklc and prescribed triplc antibiotic ointment. noted a Id at 147. On Fchruary 18. 2016. Sam pong examined well. Id. at 149. Sampong dressings obscrved Plaintiff and noted thc wound was healing no signs of infection and directed Plaintiff to changc his daily. Id. In his affidavit. Dr. Duckman attests: 14 [n my opinion to a reasonable degree of medical probanility. I'laintifT received appropriate treatment for his right Achilles tendon repair wound and sunsequent infcction while Plaintiff was at MCIII. Plaintiff does not state specifically what medical instructions were allegedly disregarded by PA Sampong and 1'1\ Slavick. but there are olien alternative options that may appropriately address a certain specific condition. In my opinion. to a reasonanle degree of medical pronanility. the medical care Plaintiff received from his medical providers at MCIlI. including the care rendered by I'A Sampong and 1'1\ Slavick. was appropriate for I'laintifrs condition. I'laintifTs surgical site inlcetion was treated and it resolved. Plaintiff was returned to the general prison population in stanle condition lor continued healing at the surgical site. I'laintifThas continued to receive ongoing care for his needs through the sick call process. ECF No. 9-5 II. 'i 15. STANI>ARI> OF REVIEW To survive a motion to dismiss invoking 12(b)(6). "a complaint must contain sufficient factual matter. accepted as true. to 'state a claim to relief that is plausinle on its face.... Ashcrofi \". It/hal. 556 U.S. 662. 678 (2009) (citing Bell Atlanlic Corp. \'. T\I"IllIIh~\'.550 U.S. 544. 570 (2007». "1\ claim has litcial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonablc inference that the defcndant is lianle I{)rthe misconduct alleged'" It/hal. 556 U.S. at 678. "Threadbare recitals of the elements ofa cause of action. supported ny mere conclusory statements. do not suffice'" Itl. (citing T\I"olllhly. 550 U.S. at 555) ("a plaintifCs obligation to provide the 'grounds' of his 'entitlelmentj to relier requircs more than lancls and conclusions. and a formulaic recitation of a cause of action' s elements will not do. "). Fed. R. Civ.l'. 12(b)(6)'s purpose "is to test the sufficiency ofa complaint and not to resolve contests surrounding the facts. the merits of a claim. or the applicability of dclcnses'" Presley". City oj'Charlo{tesl'ille. 464 F.3d 480. 483 (4th Cir. 2(06) (citation and internal quotation marks omitted). When deciding a motion to dismiss under Rule 12(b)(6). a court "must 15 accept as true all of the factual allegations contained in the complaint:' and must "draw all reasonable inferences [from those facts 1 in favor of the plaintiff:' E.I. JII I'. Kolonlndlls 1'0/1/ de Nell/ollrs & CO. .. Inc .. 637 F.3d 435. 440 (4th Cir. 2011) (citations and internal quotation marks omitted). The Court need not. however. accept unsupported legal allegations. see ReI'ene \'. Charles Co lint)' COI/II//'rs. 882 F.2d 870. 873 (4th Cir. 1989). legal conclusions couched as factual allegations. l'apa.\'lII11'. Allain. 478 U.S. 265. 286 (1986). or conclusory tactual allegations devoid of any reference to actual events. United Black Fire/iRll1ers o/Nor/hlk \'. Hirst. 604 F.2d 844.847 (4th Cir. 1979). Because PlaintifTis sell~represented. his lilings arc liberally construed. See Erickson I'. Pardlls. 55 J U.S. 89.94 (2007). But the Court must also abide by its "aflirmative obligation ". to prevent factually unsuppol1ed claims and defenses trom proceeding to trial:' BOllchat. 346 F.3d at 526 (internal citations omitted). The claims against Wexford Health Resources. Inc. will be considered in the context of a Motion to Dismiss. Defendant's motion is styled as a Motion to Dismiss. or in the Alternative. fiJr Summary Judgment under Fed. R. Civ. P. 56. If the COlll1considers materials outside the pleadings, as the Court does here regarding the claims against Defendants Slavick and Sam pong, the Court must treat a motion to dismiss as one for summary judgment. Fed. R. Civ. P. 12(d). When the Court treats a motion to dismiss as a motion for summary judgment. "[a]1I parties must be given a reasonable opportunity to present all the material that is pertinent to the motion:' !d. When the moving party styles its motion as a "Motion to Dismiss. or in the Alternative. l(lr Summary Judgment:' and attaches additional materials to its motion. the nonmoving party is. of course. aware that materials outside the pleadings are be/(lre the Court. and the Court can treat the motion as one for summary judgment. See LallRhlin I'. Metropoli/an iVa,l'lI.Airports Alllh .. 149 F,3d 253. 260-61 (4th Cir. 1998). Further. the C01ll1is not prohibited fi'om granting a motion for 16 summary judgment before the commencement of discovery. See Fed. R. Civ. P. 56(a) (stating that the court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material face without distinguishing pre-or post-discovery). However. summary judgment should not be granted if the nonmoving party has not had the opportunity to discover information that is essential to his opposition to the motion. Alldersoll \'. Liher/y [.oMy. [11,..• 477 U.S. 242.250 n.5 (1987). If the nonmoving party feels that the motion is premature. that party can invoke Fed. R. Civ. Pro. 56(d). See Celo/ex Corp. \'. Co/rel/.477 U.S. 317. 326 (1986). Under Rule 56(d). the Court may deny a motion for summary judgment if the non-movant shows through an affidavit that. for specified reasons. he or she cannot properly present facts. currently unavailable to him or her. that are essential to justify an opposition. Fed. R. Civ. Pro. 56(d). '''[Tlhe lailure to file an aflidavit e1aim that the opportunity for discovery was inadequate is itselfsuflieient [[arrod,. Ltd grounds to reject a 1'. Sixty [II/emI'l DOl/will Names. 302 F.3d 214. 244 (4th Cir. 2002) (citations omitted). But a 1[lilure to file an aftidavit may be excused "if the nonmoving party has adequately inflmned the district court that the motion is premature and that more discovery is necessary" and the "nonmoving party's objections before the district court served as the lill1ctiona! equivalent of an aflidavit:' !d at 24445 (citations and internal quotation marks omitted). Delendants tiled 149 pages of Plainti ff s medical records and the deelaration of Dolph Druckman. M.D .. Acting Regional Medical Director at MCIH. in support of their dispositive motion. ECF No. 9-4: ECF No. 9-5. Plaintiff has not filed an affidavit under Rule 56(d) or made an equivalent showing of the need for more discovery. Further. Plaintiff was provided with a Rosehoro notice. which advised him of the pendency of the motion and that he was entitled to respond. ECF No. 10: Rosehoro \'. Garrisoll. 528 F.2d 309. 310 (4th Cir. 1975) (holding pro se 17 plaintiffs should be advised of their right to tile responsive judgment). and in lilct did lile a Response. Dismiss into a Motion lor Summary material to a motion t()r summary Thus. the Court will convert Delcndant"s Judgment with respect to Plaintiffs Motion to claims against Slavick and Sam pong. III. DISCUSSION Defendants Wexford seek dismissal on the grounds that the Complaint because there is no vicarious summary judgment because liability (respondeat Plaintiff has failed to demonstrate Sam pong violated the Eighth Amendment or injury'" Eslelle I', to a "serious O(Nell' York. 436 U.S. 65&. 691 (1978): LOI'('-Lane \",,\farlin. 355 rJd superior. oflicials "is not based on ordinary principles but rather is premised on 'a recognition of subordinates' misconduct lhey inflict on those committed 2001) (quoting Siakan I', (2) the supervisor's illness 766. 782 of indifference factor in the constitutional or tacit injuries 228. 235 (4th Cir. Porler. 737 r.2d 36&. 372 (4th Cir. 19&4)). had actual or constructive that posed a pervasive may be a causative that supervisory to their care .... Baynard \",,l/alone. 268 rJd To state a claim 1(lr supervisory supervisor indifference" Slavick and superior does not apply to ~ 1983 claims. Monell\". De/"I o( (4th Cir. 2004). Liability ofsupcrvisory authorization that Defendants ~ 19&3 and Liability The doctrine of respondeat respondeat through "deliberate under 42 U.S.c. Gail/hie. 429 U.S. 97. 105 (1976). A. Supervisory SociaISen's. superior) fails to state a claim against liability under ~ 1983. Plaintilfmust knowledge and unreasonable response risk of constitutional to the knowledge indi fterence to or tacit authorization that his subordinate 18 was engaged in conduct injury to citizens like the plaintiff: was so inadequate of the alleged offensive allege thaI: (I) the as to show deliberate practices: and (3) there was an aftirmative causal link between the supervisor's inaction and the particular constitutional injury sufICrcd by the plaintiff. /Ja)'lIard. 268 F.3d at 325: Shm,. \'. Slrol/d. 13 F.3d 791. 799 (4th Cir. 1994). A private corporation may be held liable under ~ 1983 "only when an official policy or custom ofthc corporation causes thc alleged deprivation offedcral rights:' AllSlill \'. Pammol/1I1 Parks. IlIc .. 195 F.3d 715. 728 (1999): see a/so R(Jjas I'. A/exallder\ De,,'1 Slore. IlIc .. 924 F.2d 406.408-09 (4th Cir. 1990) (noting policy or custom liability cstablishcd by MOllell applicd to privatc busincsses). The complaint does not attributc the allcgcd constitutional violations to an official policy or custom of the corporate defendant. Consequently. the claims against Wexford will be dismissed. B. Post-Sur~ical Wound Treatment Defendants Sampong and Slavick assert they arc entitled to summary judgmcnt bccausc Plaintiff fails to dcmonstratc an abridgmcnt of his right to constitutionally adcquatc mcdical trcatment. Thc Eighth Amcndmcnt prohibits cruel and unusual punishmcnt. U.S. CONST.amcnd. VIII. A prison official violatcs thc Eighth Amendmcnt whcn the nfficial shows "delibcratc indifkrcncc to scrious mcdicalnceds .Jacksoll I'. Ughlse)'. ofprisoncrs:' Eslelle I'. (;amh/e. 429 U.S. at 104: see a/so 775 F.3d 170. 178 (4th Cir. 2014). A delibcratc indiffcrcncc elaim consists of both an objectivc and a subjcctivc componcnt. .Jacksoll. 775 F.3d at 178. Objcctivcly. thc inmatc's condition must bc "scrious:' or "onc that has bccn diagnoscd by a physician as mandating treatmcnt or onc that is so obvious that cvcn a lay pcrson would casily rccognizc thc necessity for a doctor's attcntion:' !d (quoting Iko \'. Shre\'e. 535 F.3d 225. 241 (4th Cir. 20(8». Subjcctively. "[aln official is dclibcratcly indiffcrcnt to an inmatc's serious mcdicalnccds only whcn hc or shc subjectivcly 'knows of and disrcgards an cxcessivc risk to inmate hcalth or 19 safety'" Jackson. 775 F.3d at 178 (quoting Forme!" 1'. lirennan. 511 U.S. 825.837 (1994)). If a risk is obvious. a prison orticial"cannot hide bchind an cxcusc that he was unawarc 01''1 riskr-r Brice \'. 1'0. Beach Corr. Or .. 58 F.3d 101. 105 (4th Cir. 1995): see also A/akdessi \'. Fiehk 789 F.3d 126. 133 (4th Cir. 2015). Additionally. the medical treatment provided must be "so grossly incompetcnt. inadequate. or excessivc as to shock the conscience or to be intolerable to fundamcntal fairness'" MillieI' \'. Beom. 896 F.2d 848. 851 (4th Cir. 1990) (citing Rogers 1'. F:nll1s.792 F.2d 1052. \058 (11th Cir. 1986). OI'erruled in porIon olher ground,' hy Farmer. 511 U.S. 825 (1994). A health providcr must havc actual knowledgc of a serious condition. not just knowledge of the symptoms. See Jolll1son \'. Quinones. 145 F.3d 164. 168 (4th Cir. 1998) ("[GJcncral knowledgc of the I~lctscreating a substantial risk ofhanll is not cnough .... The prison orticialmust also draw thc inference bctwcen thosc general facts and thc spccitie risk of harm contronting the inmate.") (citing Farmer. 511 U.S. at 837). Merc negligence or malpractice does not rise to a constitutional level. Alillier. 896 F.2d at 85\ (citing Eslelle. 429 U.S. at 106). An inmate's disagrcemcnt with mcdical providers about thc proper course oftrcatment docs not support an Eighth Amendmcnt cause of action. See Wrighl I'. Collil1S. 766 F.2d 841. 849 (4th Cir. 1985). ("Disagreements betwcen an inmate and a physician over the inmatc's propcr medical carc do not state a * 1983 claim'" ) (internal citation omittcd). The record provides uncontroverted evidence that Defendants and other medical professionals provided attentive post-surgical wound care to I'laintilTalier his Achillcs tcndon rcpair surgery. Alier the surgery. I'lainti ff was provided care in the MCIH intirmary. During this time. his vital signs were monitored. his wound was drcsscd and hc was administercd medication. including a prophylactic antibiotic. I'laintilTwas discharged and returned to the 20 general prison population several days later alier it was determined he had no signs of infection. with instructions to continue his pain medication. daily wound cleaning. and to stay off the leg. PlaintitTwas provided crutches and placed on teed-in status. When signs of infection presented. Plaintiff was admitted to the infirmary for treatment. He was treated with antibiotics and pain medication. and regularly examined to monitor his condition. Medical providers ordered lah tests and cultures to determine the nature of the infection and to identity appropriate antihiotic treatment. Plaintiff was transported to Bon Secours Ilospital to debride the wound. provided oxygen treatments. and his antibiotics were monitored to assess whether they were effective against the hacteria shown in his test results. Because certain strains of the hacteria shown arc becoming resistant to antibiotics. Plaintiff's physicians adjusted and monitored the anti hiotic medications administered to him. Plaintiff continued to receive care filr his wound and infection in the MCIII infirmary until August 5. 2015 and received follow-up care through Fehruary 18. 2016. In his Response. Plaintiff argues that as a result of improper dclay of his surgery and inadequate pain medication. his right toot is permanently impaired. Eel' No. 13 at 2. These allegations are unsupported hy testamentary evidence and helied by the record hefore this court. Even when the evidence is viewed in the light most favorahle to Plaintiff and all inferences drawn in his fil\'or. there is no genuine issue of materia! filct regarding whether the DelCndants acted with deliherate indifference to his post-surgical wound care amounting to a violation of the Eighth Amendment.4 Accordingly. Defendants are entitled to summary judgment as a matter of law. IV. CONCLUSION For these reasons. Delendants' Motion to Dismiss or. in the Alternative. Motion ttlr Summary Judgment is granted. The claims against Wexftlfd Health Sources. Inc. arc dismissed . .•The COlirt declines to exercise supplemental jurisdiction over Mickey' s malpractice claim. 21 Summary Judgmcnt is grantcd in favor of Dcfcndants Slavick and Sam pong. A scparate Ordcr follows. &;f-, Dated: March'Z;Z~ 2017 GEORGE J. HAZEL United States District Judge 22
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