Ervin v. Corizon Health

ROGER ERVIN, Plaintiff, v. CORIZON HEALTH, ASST. DIR. WILLIAM BEEMAN, HOLLY PIERCE, RN PRACTITIONER,MATTHEW CARPENTER, P.A., FRANK B. BISHOP, JR., WARDEN,JEFF NINES, ASST. WARDEN, Defendants.

Civil Action No.: ELH-19-1666

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

May 13, 2020

MEMORANDUM OPINION

This civil rights litigation concerns claims of inadequate medical care and retaliation lodged by plaintiff Roger Ervin pursuant to 42 U.S.C. § 1983. Plaintiff, who is self represented, is a prisoner at North Branch Correctional Institution ("NBCI"). He has sued Corizon Health Service; Assistant Director William Beeman; Holly Pierce, RN; Matthew Carpenter, P.A.; Warden Frank Bishop, Jr.; and Assistant Warden Jeff Nines.

In particular, Ervin claims that he has not received constitutionally adequate medical care for his glaucoma and other medical conditions. ECF 1 at 3. And, he alleges that he has been the subject of retaliation because of his complaints. ECF 1. He asserts claims, inter alia, under the Eighth Amendment to the Constitution; the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; violations of the Maryland Constitution; and medical malpractice. ECF 1 at 3.¹Several exhibits are appended to the suit. ECF 1-1. Ervin subsequently filed a First Amended Complaint ("Amended Complaint") as to some of the defendants (ECF 44), adding additional claims. In both complaints, he seeks compensatory and punitive damages.²

In light of the serious nature of plaintiff's allegations, the Court required the Maryland Division of Correction ("DOC") to respond, although the DOC is not a party to the case. ECF 8. The DOC responded (ECF 10) and submitted several exhibits. See ECF 10-1 to ECF 10-5. Mr. Ervin subsequently moved for emergency injunctive relief. ECF 12. In a Memorandum (ECF 13) and Order (ECF 14) of September 23, 2019, I denied that motion, with one exception: I required DOC to provide an appropriate eye exam for Mr. Ervin. I said, in part, ECF 13 at 12-13:

Given the evidence before me, it does not appear that Mr. Ervin is being denied care for his glaucoma. Rather, he is simply declining the care that has been offered. 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." United States v. Clawson, 650 F.3d 530, 538 (4th Cir. 2011) (emphasis added). As such, he is not entitled to an injunction requiring eye surgery in 90 days.

However, given that all parties agree that Mr. Ervin's eyesight is in jeopardy, and there has been a significant period of time that has passed since his last eye exam, I will grant injunctive relief to require that Mr. Ervin receive an appropriate eye exam to address his eye issues. In the event Mr. Ervin refuses to attend such an appointment, counsel is directed to provide evidence of that refusal beyond the ROR forms that do not bear Mr. Ervin's signature. Such evidence may include video recordings (with sound) or declarations under oath by more than one witness who hears and/or sees Mr. Ervin's refusal.

Mr. Ervin's request for this court to order reinstatement of his pain medication prescriptions, a transfer to another prison, and to provide him with a wheelchair (ECF 12 at 3-4) are unsupported by the record. Mr. Ervin has been counseled repeatedly regarding pain management and has exhibited no objective signs that his back pain negatively affects his ability to walk. His reported insistence that he was told he would need to be on pain medications for the rest of his life is unsupported by any discernible facts subject to objective proof. It is not the role of this court to make independent medical judgments or to determine the proper course of care for chronic pain. See Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (defining a serious medical need as one that has been acknowledged by a physician as mandating treatment).

The failure to provide Mr. Ervin with the pain medications of his choice does not warrant the injunctive relief sought given the objective evidence provided. Further, Mr. Ervin's conclusory statement that he requires a transfer to one of the prisons he suggests so that his disability may be accommodated lacks any allegation that he otherwise qualifies for such a transfer and there is no possibility for accommodation at NBCI where he is now confined.

The balance of equities do not tip in Mr. Ervin's favor where there is evidence that the only reason he has not received the surgery he requires is his own refusal to have the surgery and to attend appointments for evaluation of his eyes. Further, Mr. Ervin is not likely to succeed in his claims against the medical defendants, as it is his continuing disagreement with medical care professionals that appears to be the sole basis for his claims against them.

Plaintiff was "granted a brief amount of time to show cause why his claims against the named medical defendants should not be dismissed in light of this court's decision denying injunctive relief." Id. at 13. Additionally, the correctional defendants were served and directed to file a response. ECF 14.

Mr. Ervin filed a motion for order to show cause, with renewed complaints. ECF 22. Counsel for the DOC submitted a report to the Court (ECF 25), docketed October 18, 2019, advising that Mr. Ervin received the ophthalmology consultation as required by the Court's Order of September 23, 2019. That consultation took place at Johns Hopkins Hospital. ECF 25. Mr.Ervin submitted a status report (ECF 26) and filed a motion to appoint counsel and for an injunction. ECF 27.³

By Memorandum (ECF 28) and Order (ECF 29) of October 25, 2019, this Court denied Mr. Ervin's renewed requests for injunctive relief. I said, in part, ECF 28 at 2-4:

Mr. Ervin claims that his complaints of chronic pain are not being addressed; he has been denied medication in retaliation for filing administrative remedy procedure complaints; and the medical records filed in response to my order to show cause contain false information. In short, Mr. Ervin wants to pursue his claims against the Medical Defendants. Therefore, service of the Complaint is directed in the separate Order that follows.

In his motion to show cause (ECF 22), Mr. Ervin asserts that defendants did not comply with my Order to show cause why injunctive relief should not be granted because it included a Declaration under oath from Dr.[Asresahegn] Getachew, who "is not on Mr. Ervin's complaint," and Corizon did not defend the claims against it. Id. at 1. He asks this court to "make the Defendants comply to the Orders that include having the surgery done by an outside specialist so that I may not loss [sic] all of my sight." Id. at 5. He also seeks a transfer to another prison where his impaired eyesight can be accommodated, and removal from the Mental Health Tier where he states he is at risk of being harmed by another inmate with mental health issues. Id.

The court is satisfied that the response to the order to show cause complied with the requirements set forth in the Order. Mr. Ervin is reminded that the Order to show cause was issued prior to service of the suit on any of the named defendants; therefore, a response from each named defendant was not required at that time. Rather, the issue before the court was whether there was a basis for ordering preliminary injunctive relief. The record before me supported the limited relief ordered; the motion to show cause shall be denied.

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With regard to Mr. Ervin's repeated requests for injunctive relief, the basis of which has already been addressed by this court, his requests are denied, without prejudice. Mr. Ervin is reminded that this court cannot intervene on his behalf each time a disagreement arises regarding his medical care or his housing assignments. To the extent ordered medications have not been delivered, he feels unsafe in his current housing assignment, or he is experiencing the samepain he has described as an ongoing issue, those allegations have been raised in the complaint and will be addressed by all defendants after service has been effectuated. At this time, and in light of the evidence before me, as stated in my Memorandum of September 23, 2019 (ECF 13), the request for injunctive relief is denied.

NBCI Warden Bishop and Assistant Warden Nines (collectively, the "Correctional Defendants") have moved to dismiss the suit or for summary judgment. ECF 38. Their motion is supported by a Memorandum (ECF 38-1) (collectively, the "Correctional Motion") and exhibits in excess of 150 pages. Defendants Beeman, Carpenter, Corizon Health, and Pierce (collectively, the "Medical Defendants") have also moved to dismiss or for summary judgment (ECF 42), supported by a memorandum (ECF 42-1) (collectively, the "Medical Motion"). In addition, they submitted a lengthy exhibit (ECF 42-2), totaling 390 pages. Mr. Ervin's responses are at ECF 47, ECF 51, ECF 52, and ECF 53.

As noted, Mr. Ervin also filed an Amended Complaint. ECF 44. It pertains only to the Medical Defendants.⁴ In response, the Medical Defendants filed a second motion to dismiss or for summary judgment. ECF 49. I shall refer to the Medical Defendants' second motion collectively with their first motion, unless otherwise noted. Plaintiff's response to the second motion is at ECF 56. In addition, Mr. Ervin has filed motions for default judgment (ECF 34, 36); for extension of time (ECF 48); for summary judgment (ECF 50);⁵ for leave to file a reply (ECF 57); and under the Maryland Public Information Act ("MPIA"). ECF 58.

No hearing is necessary to resolve the motions. Local Rule 105.6 (D. Md. 2018). For the reasons set forth below, I shall grant the Correctional Motion and the Medical Motion; I shall denythe motions for default judgment⁶; I shall deny leave to file a reply⁷; and I shall deny the MPIA motion.⁸ But, I shall grant Mr. Ervin's ...