McCoy v. Stouffer, CIVIL ACTION NO. WDQ-10-1583

• Decision Date: 15 August 2013
• Docket Number: CIVIL ACTION NO. WDQ-10-1583
• Parties: FRANKIE L. McCOY, SR., Plaintiff, v. J. MICHAEL STOUFFER, et al., Defendants.
• Court: U.S. District Court — District of Maryland

FRANKIE L. McCOY, SR., Plaintiff, v. J. MICHAEL STOUFFER, et al., Defendants.

CIVIL ACTION NO. WDQ-10-1583

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Dated: August 15, 2013

MEMORANDUM

Pending is the motion to dismiss, or in the alternative, for summary judgment¹ of Defendants Gary D. Maynard, Secretary of Department of Public Safety and Correctional Services (DPSCS), J. Michael Stouffer, Deputy Secretary of Operations, William O. Filbert, Jr., Acting Assistant Commissioner/former Warden of Baltimore City Detention Center (BCDC), J. Philip Morgan, former Warden of Western Correctional Institution (WCI) and current Warden of Maryland Correctional Training Center (MCTC), Gregg L. Hershberger, Warden of Roxbury Correctional Institution (RCI), Robert Koppel, Warden of former Maryland Correctional Adjustment Center (MCAC), currently Chesapeake Detention Facility (CDF), Dayena Corcoran, Warden of Maryland Correctional Institution- Jessup (MCI-J), Lt. Timothy Munson (RCI), Lt. Gary Winters (RCI), CO II Kenneth L. McCusker (WCI), CO Sgt. Keith M. Toothaker (WCI), CO Captain Marc V. Whiteside (WCI) and CO Lt. Ronald J. Gordon's (WCI). ECF No. 30. The Plaintiff has responded. ECF Nos. 32, 37, 39 & 40. No hearing is necessary. See Local Rule105.6 (D. Md. 2011). For the reasons stated below, the dispositive motion filed by the Defendants will be granted.²

Background

The Amended Complaint alleges that the Plaintiff has been denied adequate medical care because medical "accommodations" he requires were not provided to him at three different institutions, MCI-J, RCI, and WCI. He has sued DPSCS administrators and former and current administrators and staff at the institutions under 42 U.S.C. § 1983, the Americans with Disabilities Act, and the Rehabilitation Act. ECF Nos. 1 & 5.

The Plaintiff alleges a conspiracy among Division of Correction ("DOC") staff to punish and retaliate against him by transferring him throughout the DOC and to a higher security facility because of his Requests for Administrative Remedies (ARPs) and litigation in the state and federal courts. Id.

The majority of the claims here arose in 2009 and 2010. The Plaintiff alleges that while housed at MCI-J he awaited follow-up on recommendations made by medical staff. He spokewith Warden Corcoran and filed ARPs on August 6, 2009 and December 17, 2009, concerning his medical care and the lack of medical accommodations or response to medical recommendations. He states that recommendations to repair/replace his left arm brace, for knee surgery, an MRI, and orthopedic shoes were delayed. He claims that he was retaliated against by being transferred to WCI in Cumberland, Maryland based upon false charges; the transfer took him away from his medical providers in the Ballimore/Jessup region.

The Plaintiff states that upon his arrival at WCI he repeatedly requested the previously recommended medical accommodations, including single cell status, access to a handicap cell and daily showers with a shower chair. He alleges he was denied access to his neurologist for three and a half months. He further alleges he was placed on administrative segregation for five days without access to his legal materials and that he fell on the stairs climbing to his housing unit. Id.

The Plaintiff alleges that he was held at MCAC in a cell with broken windows during January and February, 2010 and that his medical needs were denied during this time.

The Plaintiff alleges that in April 2010 he was transferred to RCI where his medical recommendations continued to be ignored. He was again denied access to legal materials and a radio that had previously been approved by custodial staff. Plaintiff alleges property officers Munson and Bowser refused to return the items, and Winters confiscated his adjustable cane. Id.

The Plaintiff alleges he was denied use of the hospital elevator from July 22, 2010 through September 30, 2010. He also alleges that between January 1, 2011 and August 9, 2011, the Defendants failed to provide recommended medical accommodations, resulting in his falling on multiple occasions and suffering additional injuries. Specifically, the Plaintiff alleges Morgan. Whiteside, Gordon, Toothaker, and McCusker all deprived him of daily hot showers and medical housing, specifically single cell status with a seal and railing. The Plaintiff alleges Wintersconfiscated Plaintiff's adjustable cane, thus interfering with his medical recommendations and needs. Plaintiff states that the confiscation directly led to his falling on three occasions and caused concussions and damage to his face, neck, jaw, hands, legs and knees. The cane was returned to him on November 28, 2010. ECF No. 5.

The Plaintiff claims that Stouffer, Morgan and Hershberger "harbor[ed] a discriminatory animus [and] denied access to (TTY) phone service programs or activities for hearing impaired inmates." Id. Additionally, the Plaintiff alleges that while housed at WCI his hearing impairment worsened from the physical conditions of his incarceration. He states that he was unable to hear announcements over the intercom system and was denied TTY access, which caused him to miss meals, announcements, and other activities. Id.

The Defendants dispute the Plaintiff's allegations in certain respects and clarify the facts in others.³ Previously, the Plaintiff filed suit against his medical providers for denial of medical care during the period at issue in this case. He alleged, among other things, that his medical care had been delayed and interrupted. See McCoy v. Correctional Medical Service, Inc., WDQ-10-1481 (D. Md), ECF No. 60. Recitation of the facts and legal conclusions found in that case are relevant and follow:

The Plaintiff is a Maryland State inmate who suffers from cervical spondylosis, lumbar degenerative disc disease, bunions on his right foot, corns on his left foot, "drop foot", and temporomandibular joint disease ("TMJ"). The Plaintiff also uses an arm brace for left forearm pain. ECF Nos. 1, 21 & 35. The Plaintiff alleges he has been denied follow-up care ordered by physicians. He alleges that he has been denied an MRI for his right knee injury; follow- up with a podiatrist for surgery on his right foot bunion, repair of his arm brace, and referral to a dental specialist for TMJ. He alleges that the referrals were pending when he was transferred for retaliatory reasons to the Western Correctional Institution. He also alleges that Christy Whitehair confiscated his medically prescribed adjustable cane and being forced to travel in a bus without toilet facilities from the WesternMaryland area to the Baltimore Metropolitan area for court appearances has caused him to soil himself. ECF No. I.

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TMJ

The Plaintiff received physical therapy for TMJ from March 9-23, 2009. Then he was discharged from physical therapy with instructions for exercises he could continue independently. ECF No. 35, Exs. G & H, p. 2-3, 7-8. On May 9, 2009, the Plaintiff was seen by Dr. Ayalew for follow-up for his TMJ. Then the Plaintiff reported he had been doing well with the physical therapy and was experiencing no pain. Dr. Ayalew submitted a Consultation Request for Plaintiff to be evaluated by an oro-maxillofacial surgery specialist ("OMFS") at the University of Maryland Medical System ("UMMS"). Id., p. 8A-9.

The consultation request was approved and on May 21, 2009, the Plaintiff was evaluated by Robin Yang. DDS, at UMMS. Id. p. 10. Dr. Yang noted that the Plaintiff was not a candidate for TMJ surgery. Dr. Yang prescribed a muscle relaxant, soft diet, continued physical therapy, and ice or hot compresses as tolerated for comfort. The Plaintiff was again evaluated by Dr. Ayalew who reviewed Dr. Yang's recommendations, continued the Plaintiff's prescription for a muscle relaxer, and submitted a Consultation Request for him to be evaluated by Dr. Grace, a TMJ specialist. Id., p. 9-9A.

The Plaintiff was again evaluated by Dr. Ayalew on June 26, 2009. The Plaintiff did not complain of jaw pain. He advised Ayalew that he was using ice as needed, and his physical therapy had been completed. His prescription for the muscle relaxer was continued. Id., p. 15-16. He reported to Dr. Ayalew on July 15, 2009 that he had gone to UMMS to see the oral surgeon but was told he would be rescheduled. Id., p. 20. He was next seen by Ayalew on October 22, 2009. He had no complaints of jaw pain and did not have any difficulty chewing or eating. His prescription was continued. Id., p. 31.

On November 5, 2009, the Plaintiff was evaluated by an OMFS at UMMS. The Plaintiff advised that he continued to have pain in his left TMJ, and his condition had not improved over the past eight years. He advised the doctor that he followed Dr. Yang's recommendations which resulted in some relief. The specialist recommended that the Plaintiff follow-up with a dentist for further treatment of his TMJ. Plaintiff's soft diet, heat and ice, muscle relaxant, and physical therapy were continued. Id., p. 37.

The Plaintiff was next evaluated on December 11, 2009, by Dr. Ayalew. His muscle relaxant was continued, and Ayalew submitted a Consultation Request form for him to be seen by a TMJ disorder specialist. Id., Ex. G.On April 5, 2010, the Plaintiff was examined by Alan Graves, DDS. Dr. Graves submitted a Consultation Request form for the Plaintiff to follow up with an OMFS for his chronic pain. Graves noted a CT scan had been requested but had not been taken because of Plaintiff's transfer to WCI. Id., p. 54.

The Plaintiff was evaluated by Dr. Joubert on April 19, 2010, in the Chronic Care Clinic ("CCC"). He did not complain about TMJ pain during that visit. Joubert prescribed Extra Strength Tylenol for Plaintiff's back pain. Id., p. 55.

The Plaintiff's TMJ has been conservatively managed. He received pain relief from the combination of muscle relaxant, independent physical therapy, ice and heat, and soft diet, He is not a candidate for surgery. He has suffered some

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