Severe v. U.S.
| Decision Date | 01 October 2021 |
| Docket Number | Civil Action SAG-20-3404 |
| Parties | MICHAEL SEVERE, Plaintiff, v. USA, TIMOTHY STEWART, ASST. WARDEN SAMPLE, UNIT MANAGER HOLLER, DOE, MOHAMED MOUBAREK, KRISTI CRITES, J. YOON, F. KHORASHAD, DR. HAHN, Defendants. |
| Court | U.S. District Court — District of Maryland |
In response to this complaint which was filed pursuant to the Federal Tort Claims Act (“FTCA”) and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics 403 U.S. 388 (1971), defendants filed a motion to dismiss or for summary judgment. ECF 26. Plaintiff Michael Severe, who proceeds pro se, opposes the motion (ECF 38), moves for appointment of counsel (ECF 25, 29, 31, and 32), and for an extension of time to obtain a certificate of merit (ECF 44). No hearing is necessary to resolve the matters pending before the court. See Local Rule 105.6 (D. Md 2021). For the reasons that follow, defendants' motion shall be granted in part and denied in part, plaintiff's various motions to appoint counsel shall be granted, and his motion for extension of time shall be denied as moot. Additionally, the case will be stayed pending plaintiff's arrival back in the Mid-Atlantic region.[1] I. Background
Plaintiff Michael Severe alleges that in September 2018, he was assigned to a cell (Cell 215) at FCI-Cumberland that did not have a ladder to reach the top bunk where he slept. ECF 1 at 9. He states he “had to routinely jump up and down” off and on the top bunk. Id. When Severe spoke to Unit Manager David Holler about providing him with a ladder to access the top bunk, Holler denied his request and advised him to use a chair to get up and down. Id.
Severe maintains that defendants' security explanation for not providing a ladder is essentially a farce. Severe claims that “most all the cells had ladders.” ECF 38 at 7. He states that hiding behind the bars of the ladder as defendants claim is not feasible and inmates can more easily hide behind the cell door. Id. He further states that the idea that the ladders could be used to make weapons is also not a legitimate reason for denying him a ladder as there are numerous items available through the commissary and otherwise that can more easily be used as weapons (e.g., steel scissors, steel locks, metal from UNICOR shops, broomsticks, and mop handles). Id.
Severe recalls that on September 11, 2018, he had awakened at 2:00 a.m. to urinate. ECF 38 at 6. He states his cellmate had blocked the window and the door with a sheet so there was no light in the cell, only “a tiny crack for the [correctional officer] to look in during rounds.” Id. at 7. While trying to navigate finding the chair with his foot, balancing on one leg and holding onto the bed, the chair slipped out from beneath one foot just as he had let go of the bed with his hand, causing him to fall. Id. He landed in a “split, ” and recalls feeling pain immediately in his knees and in his right hip. Id. Severe's cellmate called for help, but the officer on duty said that there was nobody at the medical unit who could help with this type of injury. Id. The following morning, Severe “limped and struggled to the medical department.” Id.
Plaintiff has advised the court that he is going to be released on September 29, 2021 and upon his release will reside in Pennsylvania. ECF 44.
Upon arrival to the medical department, Severe was evaluated by CRNP Kristi Crites. Severe states that Crites ordered an x-ray, gave him a wheelchair for three-days, and prescribed pain medication. ECF 1 at 10. The x-ray results came back on September 14, 2018 and Crites informed Severe that “nothing was wrong with his hip or knee and ordered that [he] should exercise and work the pain out.” Id. at 11.
Severe believes that Crites's recommendation derived from Dr. Mohamed Moubarek's review of the x-ray, which reflected that it did not show a fracture or malalignment. ECF 1 at 11. Severe claims that Dr. Moubarek saw “some signs of injury but brushed it off as an old injury.” Id. Despite Severe advising Crites that he “fell hard off of the top-bunk trying to get down, ” he claims Dr. Moubarek did no further evaluation of his injury. Id. Severe was advised to return in four months if he still felt pain in his hip or knee. Id.
On October 9, 2018, Severe reported to Crites that his pain had increased to the point he could not walk to the dining hall to receive meals without being in extreme pain. ECF 1 at 12. Severe told Crites he had lost 30 pounds because of his inability to reach the dining hall. Id. He explained to her that he believed the pain was caused by the fall from his bunk, but Crites disagreed and diagnosed him with muscle strain. Id. Severe was given pain medication and advised to “stretch out the injury.” Id. at 13. He claims his complaints went ignored by Crites, Moubarek, Thomas Gera and “any and all medical employees at FCI Cumberland” following the October encounter. Id.
In early February 2019, Severe recalls he “limped to the FCI Cumberland chow hall” to look for a medical provider. ECF 1 at 13. When he saw Ms. Hamilton, an administrator in the “medical department, ” he complained to her about the pain in his leg, groin, and hip. Id. Hamilton assured Severe that she would check to find out why he wasn't being seen for the problem. Id. Following his conversation with Hamilton, Crites told him she had paged him over the prison's intercom system for a medical visit, but he never showed up. Id. Severe maintains he never heard the call and maintains such a call is not the proper procedure for summoning someone to a medical evaluation under applicable regulations. Id. at 14.
On February 11, 2019, Severe was seen again by Crites and he again complained about extreme pain in his hip and knee, limiting his ability to walk. ECF 1 at 14. Crites told Severe to obtain pain medication from the prison commissary and ordered another x-ray. Id. Two days later, the x-ray was performed. Id.
On February 19, 2019, Crites simply told Severe that she would continue to monitor his condition and repeat an x-ray of his hip in three to four months. ECF 1 at 14. Severe claims he was never given the results of the x-ray, but also claims that Moubarek reviewed the x-rays and changed his report twice to cover-up the findings. Id. at 15. Severe states that the report indicated ‘ ' Id.
On April 24, 2019, a lieutenant sent Severe to the medical department after noticing him limping and in pain. ECF 1 at 15. C. Todd, RN examined Severe and ordered ibuprofen to be dispensed to him in the evening pill line. Id. Todd told Severe that he would notify his primary care provider about the pain he was experiencing. Id.
On April 29, 2019, Crites examined Severe for his complaints of extreme pain that caused difficulties in walking to the chow hall to eat meals. ECF 1 at 16. At this time, Severe told Crites he wanted an MRI since they were telling him the x-rays did not show an injury. Id. His request was denied, but he was scheduled for another x-ray. Id. Severe claims he was not prescribed any pain medication but was advised to obtain over the counter medication at the prison commissary. Id.
The x-ray results were received on June 14, 2019; Severe claims Crites simply signed the radiology form. ECF 1 at 16. Later that month, Severe was informed that he needed “some sort of hip replacement surgery.” Id. Severe states that this assessment occurred after Moubarek and Crites told him a number of times that there was nothing wrong with his knee or hip. Id. Severe believes that the issues with his hip occurred as a result of his fall from the top bunk. Id. at 17. Severe has avascular necrosis in his right hip with a “subchondral collapse involving the weight bearing portion of the femoral head.” Id. He states his hip is still not repaired and a surgical procedure to release pressure from the area has not resolved the problem. Id. According to Severe, Moubarek would not “sign off” on a total hip replacement to treat his right hip. Id.
Severe raises a claim under the Federal Tort Claims Act (“FTCA”) and asserts his Eighth Amendment rights were violated when defendants Stewart, Sample, Holler, and Doe failed to implement a policy or practice of installing ladders in the cells at FCI Cumberland. ECF 1 at 17-20. He also claims that defendants Moubarek, Crites, Yoon, Khorashadi, and Hahn[2] violated his Eighth Amendment rights when they denied him access to medical care for a serious medical need and implemented an unsound policy or practice of delaying medical care for his serious medical problems. Id. at 20-22.
Dr. Mohamed Moubarek provides a declaration in support of defendants' pending motion for summary judgment. ECF 26-3. Moubarek is the clinical director at FCI Cumberland and functions as the primary physician for inmate medical services. Id. at 2. Moubarek states that he supervised the clinicians who provided Severe with medical care while he was assigned to FCI Cumberland between August 27, 2018 and December 14, 2020. Id. at 3. He explains that Severe as initially evaluated when he arrived to FCI Cumberland and was given a bottom bunk pass due to his history of seizures. Id.
Severe does not dispute that he had a bottom bunk pass but explains that Mr. Washington did not care about the pass and assigned Severe to a cell with an older man who had bad knees. ECF 38 at 6. When Severe told Washington that he needed a bottom bunk, he claims Washington told him to “make the old man move up top then.” Id....
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