Ervin v. Corizon Health

Decision Date03 October 2022
Docket NumberCivil Action ELH-21-2386
CourtU.S. District Court — District of Maryland


The self-represented plaintiff, Roger Ervin, an inmate confined to North Branch Correctional Institution, filed a civil rights complaint, as amended, alleging that he has been denied appropriate medical care, in violation of his Eighth Amendment right to be free from cruel and unusual punishment. See ECF 1, ECF 5, ECF 10.

Defendants Corizon Health, Inc. (Corizon); Asresahegan Getachew, M.D.; and Matthew Carpenter, P.A. have filed a motion to dismiss or, in the alternative, for summary judgment. ECF 49. The motion is supported by a memorandum (ECF 49-1) (collectively, the “Motion”) and plaintiff's medical records. ECF 49-2.

Mr Ervin opposes the motion. ECF 56, ECF 61. Also pending are Mr. Ervin's motions for leave to file another amended complaint and for default judgment. ECF 51, ECF 56.[1]

No hearing is necessary to resolve the motions. Local Rule 105.6 (D. Md. 2021). For the reasons that follow, I shall deny Mr Ervin's motions and I shall grant defendants' Motion.

I. Factual Background[2]
A. Complaint Allegations

Mr. Ervin has a history, inter alia, of serious eye issues. This case concerns various medical issues of plaintiff, some of which were addressed in prior litigation initiated by plaintiff. See Ervin v. Corizon Health, et al., ELH-19-1666 (Ervin I); see also Ervin v. Wexford, ELH-16-2964. For convenience, I shall refer to the instant case as Ervin II.”[3]

1. Sinusitis

In my Memorandum (ECF 3) and Order (ECF 4) of October 4, 2021, plaintiff was permitted to amend his suit. But, he was expressly limited to facts and events that were not previously considered in Ervin I, and which occurred since May 13, 2020, when Ervin I was decided. ECF 2 at 2, ¶ 4; ECF 3 at 2; see also Ervin I, ECF 59, ECF 60.

Then, in this case, pursuant to a Memorandum (ECF 12) and Order (ECF 13) docketed on December 3, 2021, plaintiff was again permitted to clarify and supplement his suit as to his sinusitis. ECF 13, ¶ 6. In particular, in ECF 12, the Court noted that, in a prior suit filed by Ervin in 2016 (ELH-16-3964), plaintiff had alleged that he was not provided with appropriate care after sinus surgery in January 2017. Id. at 7 (citing Ervin v. Wexford, ELH-16-3964, ECF 51). Nevertheless, I granted Mr. Ervin the opportunity to supplement his current claim regarding his sinusitis. Ervin II at 11.

Further, the Memorandum indicated that Mr. Ervin's claims “will move forward” as to the post-surgery follow up care at Johns Hopkins Hospital; his need for additional surgery to his eyes; his claim of delay as to medical care for his eyes; and whether his current condition qualifies as a disabled individual, entitled to accommodations, pursuant to the Americans with Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C. § 12101 et seq. ECF 12 at 11.

As to plaintiff's claim regarding his sinuses, I stated, ECF 12 at 7-8:

In the first amended complaint, Mr. Ervin alleges that Matthew Carpenter, a Physician's Assistant at North Branch Correctional Institution (“NBCI”), never responded to the allegations raised in Ervin I and that “the rest of the Defendants was send [sic] to low court under Supplemental Complaint.” ECF 5 at 2, 7.[] Mr. Ervin adds that Corizon and Carpenter knew he had a chronic sinus condition that caused him pain and suffering because Mr. Ervin wrote to corporate headquarters while Ervin I was pending in this court, stating he was suffering from chronic sinusitis. Id. at 16. Mr. Ervin adds that he does not have high blood pressure, does not need to take medication to treat it, but instead it is his sinus condition that is causing his stress as well as his elevated blood pressure. Id. at 18.
In his second amended complaint Mr. Ervin alleges that Carpenter was made aware of plaintiff's chronic conditions and need for a follow up appointment after his sinus surgery, but allegedly failed to take action. ECF 10 at 4-5, ¶ 3. Mr. Ervin adds that Carpenter was one of the “first people to see Mr. Ervin after the surgery to his sinus and to his eyes. Id. at 10, ¶19.
In a prior lawsuit, initiated in 2016, Mr. Ervin alleged he was not provided appropriate care after he received sinus surgery on January 24, 2017. See Ervin v. Wexford, Civil Action ELH-16-3964 (D. Md. 2016), ECF 51 (Mem. Op. denying preliminary injunction) at 3. To the extent that Mr. Ervin is attempting to revive a claim regarding his medical care following his sinus surgery, the claim is barred by the doctrine of res judicata and will not be revisited here. In addition, the absence of any specific date with regard to this allegation against Carpenter makes this claim virtually impossible for Carpenter to respond to it in any meaningful way. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002) (complaint must give defendant fair notice of the claim). According to Mr. Ervin, Dr. Getachew promised him, on an unknown date, that he would be sent out for an MRI of his sinuses. ECF 10 at 9-10. Mr. Ervin states his sinus medication was discontinued even though he has chronic sinusitis, but he does not state who discontinued his medication or when it was discontinued. Id. Moreover, he does not explain why the failure to provide him with an MRI has caused him harm.

In the supplements received after the filing of ECF 12, Mr. Ervin indicated that defendants began to provide him with high blood pressure medication but stopped the medication for his sinus condition. ECF 15 at 1-2; ECF 21 at 2 (alleging sinus cyst near eye); ECF 23 at 3. Mr. Ervin states again that he does not have high blood pressure; rather, it is the cyst in his sinus and the pain in his eye that causes his nose bleeds and his elevated blood pressure. ECF 23 at 4.

In a later “status report” (ECF 27), Mr. Ervin claims that since his sinus medication was stopped he has had difficulty breathing and has nosebleeds. Id. at 2, ¶ 2; see also ECF 31 (correspondence docketed February 7, 2022) at 3 (alleging “chronic nosebleeds”). He also claims that the sinus pain causes his eye pressure to increase. Id.

In plaintiff's opposition (ECF 44) to defendants' motion for extension of time (ECF 40), Mr. Ervin states that he had a cyst in his left sinus that was surgically removed but two smaller ones in the right sinus were too small to remove. ECF 44 at 2. Mr. Ervin claims the surgery was performed at Mercy Hospital by an ENT who ordered treatment. Id. According to Ervin, defendants discontinued all of his sinus medication and treatment. Id. In support of this assertion, Mr. Ervin attaches a medical record dated May 10, 2017, documenting his complaints of nosebleeds and his request for follow-up care from an ENT. ECF 44-2.

2. Glaucoma

Plaintiff states that he suffers from a chronic condition for which he must be seen every 90 days. ECF 10 at 5. He claims that the surgery he received on his left eye to treat glaucoma was done pursuant to a court order. Id. Although the surgery was performed on May 13, 2020, Mr. Ervin claims the follow-up visit to Wilmer Eye Institute at Johns Hopkins Hospital did not occur for well over five months. Id.

Mr. Ervin asserts that he was seen on October 3, 2020, by Dr. Alesha Spellman-Smith, an optometrist. Id. at 5-6. Dr. Spellman-Smith told Mr. Ervin that he needed to return to Johns Hopkins on an emergency basis because both of his eyes were swollen, infected, and “hard as rocks.” Id. at 6. Dr. Spellman-Smith noted that Mr. Ervin's follow-up appointment was overdue and that she was going to prescribe something for his infection. Id.

According to Mr. Ervin, he has not received the eye drops that were prescribed for him. ECF 10 at 6. Further, he maintains that his numerous sick call slips went unanswered. Id.[4]

On January 4, 2021, Mr. Ervin had a telemed appointment with Dr. Getachew, and he relayed what Dr. Spellman-Smith had said on October 3, 2020. ECF 10 at 6-7. Mr. Ervin also told Dr. Getachew that he was in a lot of pain. Id. at 7.

Plaintiff was seen by Dr. Green-Simms,[5] an ophthalmologist, in March 2021. ECF 10 at 7; see also ECF 49-2 at 166-78 (medical record generated by Dr. Green-Simms). Mr. Ervin recalls that Dr. Green-Simms told him his eyes were swollen and needed to be drained. Id. She also told him that his left eye needed to be removed and that there was a big hole in his eyeball. Id. At that time, Mr. Ervin claims he was in so much pain that he could not lay on his left side or tolerate any direct light to his eyes. Id. He alleges that Dr. Green-Simms reported that he needs to return to Johns Hopkins on an emergency basis and if that is not done in 30 days, he should be brought back to her. Id. at 8.

Mr. Ervin was seen at Johns Hopkins Wilmer Eye Institute on May 19, 2021. He states it was determined at that time that he needed urgent surgery to close the hole in his eye that was left from removal of a shunt, and that his left eye needed to be removed. ECF 10 at 8. Mr. Ervin claims that the Johns Hopkins doctors told him that they would not have put the shunt in place if they knew it would take him two years to return, and informed him that the shunt was in place for so long that it damaged the optic nerve. Id. Further, he claims the doctors told him, “This is not your fault they should have brought you back.” Id.; see also ECF 49-2 at 186 (onsite consultation form dated May 17, 2021 indicating plaintiff needs eye removal (enucleation) and glaucoma surgery on the right).

On June 21, 2021, Mr. Ervin received laser surgery to close the hole in his eye. ECF 10 at 8. He states...

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