Resper v. Wexford Health Sources, Inc.

WAYNE RESPER, Plaintiff v. WEXFORD HEALTH SOURCES, INC., WARDEN RICHARD GRAHAM, JR.,TERRI DAVIS, UNNAMED NURSE MANAGER, Defendants

Civil Action No. PJM-18-1406

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

April 14, 2021

MEMORANDUM OPINION

Plaintiff Wayne Resper, currently incarcerated at North Branch Correctional Institution ("NBCI") in Cumberland, Maryland, has filed a civil action against Wexford Medical Services ("Wexford"), Terri Davis, "Unnamed Nurse Manager" (collectively the "Medical Defendants") and Warden Richard Graham, Jr. In his Complaint, Resper asserts a violation of his constitutional rights arising from Defendants' alleged failure to treat his pain properly while he was housed at Western Correctional Institution ("WCI") in Cumberland, Maryland. Pending before the Court is the Medical Defendants' Motion to Dismiss, or Alternatively, for Summary Judgment, as supplemented, which is fully briefed (ECF No. 14 and 19) and Warden Graham's Response to Order to Show Cause. ECF No. 5.

Resper sought and was granted numerous extensions of time to respond to the dispositive motion. While the motions were pending Resper was moved between prisons resulting in his mailing documents to the Court for safekeeping and his being separated from his paperwork for several months which resulted in a lengthy delay to the resolution of this case. See e.g. ECF Nos. 16-18, 23, 25, 27, 30-43. On April 17, 2020, the court entered an Order granting Resper's Motions for Extension of Time and directing that he respond to Defendant's dispositive motion on or before June 29, 2020. ECF No. 43. He was advised that no further extensions would be granted. Id. In September of 2020, he advised the Court that he was again transferred to another facility. ECF No. 46. To date, he has not responded to Defendants' dispositive motion.

Upon review of the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Medical Defendants' Motion, construed as a Motion for Summary Judgment, IS GRANTED and Plaintiff's Complaint against Warden Graham IS DISMISSED.

BACKGROUND

In his Complaint, as amended, Resper alleges that on April 29, 2018, he was found with eleven doses of Neurontin and four tablets of Tramadol/Ultram which were prescribed to treat Resper's nerve pain. ECF No. 1, pp. 2-3. Plaintiff advised custody staff that he had received some of the medication that evening, and he had purchased some from other inmates in order to manage his pain when the provided medication wore off. Id., p. 3.

The following morning, Resper was not provided "pain or nerve medication." Id., p. 3. He states that a few days earlier, he was told that the pharmacy was out of Tramadol/Ultram and they were waiting for more. Id. Later that evening, Resper was again not provided Tramadol/Ultram and was told by an unidentified medication technician that all his medications had been stopped by the "nurse manager." Id., p. 3.

Resper filed a sick call slip and emergency request for administrative remedy asking to be provided pain/nerve medication, but his request was not answered. ECF No. 1, pp. 3-4.

Resper states that "[w]hile it has been suggested that the medications are 'watch take,' it is largely optional because [his] primary interest is pain management until the next provision of pain/nerve medication." ECF No. 1, p. 4. Resper explains that he immediately takes his morning dose of medication but in the evening he delays his dose until after midnight when his medication has worn off. Id. Resper explained to medical personnel that since medication is only administered twice a day he "sought to manage his pain by supplementing through purchases and delaying evening doses otherwise, [he] would simply not be able to sleep or withstand [the pain from his condition]". Id., p. 4. He further explains that Neurontin is only effective for four to five hours and therefore he needs a dose between the provided doses given to him. Id., p. 4. He also claims that Ultram/Tramadol lasts between 14 and 16 hours and as such he needs a supplemental dose to "carry" him to the next dose which he is only provided in the morning. Id.

Resper states that he is not being provided pain/nerve mediation because it was stopped by the nurse manager. ECF No. 1, p. 5. Resper further states that WCI does not have an onsite physician to whom he can appeal to have his medication restored. Id.

In his Amended Complaint, Resper alleges that Terry Davis refused to renew and prescribe Plaintiff's blood thinner, Plavix, to treat deep vein thrombosis (DVT). ECF No. 12, p. 1; ECF No. 12-1, p. 1. As a result, Resper suffered pain and swelling in his right leg and foot. ECF No. 12, p. 1. He further alleges that Defendants failed to refer him to a physician and to a pain management specialist for assessment and treatment. ECF No. 12-1, p. 2. Additionally, he claims that Defendants failed to assess him or have him assessed so that he could be provided adequate pain management and also failed to respond to his requests for medical care regarding his acute pain and swelling in his leg. Id., pp. 2-3.

Resper's undisputed medical records demonstrate that he has a medical history of DVT, gastroesophageal reflux, microcytosis and hypochromia, bilateral knee pain, and chronic ulcerated statis dermatitis. ECF No. 14-4 (medical records).

In regard to Resper's allegations that he did not receive Plavix, the record evidence shows that he had a valid prescription for Plavix from October 6, 2017 through October of 2018, but for unknown reasons did not receive the medication from March to July of 2018. ECF No. 19-3, pp. 3, 8, 37-43, 83, 91, 97, 101, 115, 121. (additional medical records). Nevertheless, Resper did not submit any sick calls slips from March 1, 2018 through August 9, 2018, complaining that he had not received Plavix during that period of time. Id., pp. 58-82. Resper does not explain why he did not ask for his keep on person prescription of Plavix during pill call or why he failed to voice concerns regarding the lack of Plavix when he was seen by medical staff.

On January 21, 2018, NP Clark examined Resper and renewed his prescription for Plavix until May 21, 2018. ECF No. 19-3, pp. 4-5. He received Plavix in February 2018. Id., p. 91.

On March 3, 2018, NP Clark evaluated Resper at provider sick call. ECF No. 19-3, pp. 13-15. He was referred to the regional medical director. Dr. Getachew saw Resper via telemedicine on March 8, 2018. Id., pp. 16-18, It was noted that Resper was on Plavix and Resper did not advise Dr. Getachew that he had not received Plavix. Id. At that time of exam, Resper had a non-healing wound on the medical distal left leg which measured 2 x .8 cm. with no necrosis or cellulitis and small drainage. Id. Resper had been seen by a wound care specialist on November 27, 2017 who recommended vascular studies, but the results of the studies were not available. Id. As such, Resper was scheduled to return to Dr. Getachew the following week so the studies could be reviewed. Additional lab work was ordered and Dr. Getachew assessed Resper as having chronic venous stasis ulcer. Id.

Dr. Getachew again evaluated Resper on March 27, 2018, via telemedicine. ECF No. 19-3, pp. 19-21. Resper expressed frustration about his non healing leg wound and chronic leg pain. Id. Resper had lower extremity swelling that extended to the calf and a chronic non healing wound on the left lower leg. Id. Dr. Getachew discussed Resper's condition with a radiologist who recommended an MRI with contrast: Dr. Getachew submitted a request for consult for the MRI of the lower leg, abdomen and pelvis. Resper did not report to Dr. Getachew that he had not received Plavix. Id.

On April 2, 2018, Resper was seen by Terry Davis, P.A. ECF No. 19-3, pp. 22-24. It was noted that ankle brachial indexes were to be obtained and lab work was ordered. Additionally, Resper was educated regarding peripheral vascular disease and the importance of seeking medical attention immediately if he experienced severe pain and the inability to move his toes. Id. Davis renewed his prescription for Plavix. Id., pp. 25-26.

On April 30, 2018, Davis discontinued Resper's prescriptions of Neurontin and Tramadol because he had been found hoarding the medication.¹ ECF No. 14-4, pp. 3-4. He was prescribed Naprosyn (a nonsteroidal anti-inflammatory) and Cilostazol (a medication used to improve symptoms of blood flow problems in the legs and which decreases muscle pain). Id. The non-formulary request for Cilostazol was approved on May 4, 2018. Id., pp. 5-6,

On May 1, 2018, Resper submitted a sick call slip asking for toenail clippers. ECF No. 14-4, p. 7. The following day he filed a sick call slip asking to renew his prescriptions for Neurontin and Tramadol. Id., p. 8. On May 3, he filed a sick call slip asking to renew his prescriptions for Reguloid, Vitamin E lotion, and A&D ointment. Id., p. 9.

Nurse Diaz evaluated Resper on May 4, 2018 at nurse sick call. ECF No. 14-4, pp. 10-11. She explained to Resper that his prescriptions for Neurontin and Tramadol were discontinued due to hoarding the medications. Id. He was also advised that he was not allowed nail clippers and was referred to Dr. Yahya for nail care. Id. He was also reminded of the procedure to renew medications. Id.

Plaintiff filed a sick call slip on May 6, 2018, complaining of leg pain. ECF No. 14-4, p. 12. He was seen by RN Kleptich at nurse sick call on May 8, 2018 and was advised that Cilostazol was prescribed expressly to treat the left leg claudication. Id., pp. 13-14.

Nurse Practitioner Self evaluated Resper on May 22, 2018, to follow up on his complaints regarding no pulse in the left foot. ECF No. 14-4, pp. 15-16. Resper's left pedal and post tibial pulses were present but diminished. Id.

On June 2, 2018, NP McLaughlin conducted Resper's annual physical examination. ECF No. 14-4, pp. 17-23. The exam was generally...