J. FREDERICK MOTZ, District Judge.
Pending are defendants' motions to dismiss or for summary judgment.
Plaintiff alleges in June of 2011 he suffered an infection in his left foot. On June 5, 2011, he was placed on "institutional medical count-out for nurse treatment (foot soaks)," and provided with an assigned tub, cleaning solution, cotton tipped swabs, gauze, ointment and bandages. ECF No. 1 at p. 4; ECF No. 5 at p. 6. He claims after soaking his foot for several days a scab started forming over the raw sore. Several days later, Nurse Destiny changed the soaking solution to one containing iodine solution. Although plaintiff told Destiny he did not ordinarily use an iodine solution on his foot, she did not provide him with the other cleaning solution.
Plaintiff states that after using the iodine solution, large pus-filled boils formed underneath the affected area on his left and right foot as well as both hands. He claims the boils burst and the affected area became raw and sore again. The iodine solution was continued for several more days by Destiny and plaintiff's foot and hands began getting worse with the formation of blistering bumps. Plaintiff alleges that Physician's Assistant Deirdre Mull realized from information found on the computer that plaintiff's foot should not have been soaked in iodine due to plaintiff's allergy. The iodine use was then discontinued. Id.
Meanwhile plaintiff attempted to have prison staff intervene on his behalf with regard to his medical care. Plaintiff states that he spoke with the Warden on June 22, 2011, about the fact that his foot was not healing and that the creams given to him for treatment only served to worsen the condition of his foot. Plaintiff claims the Warden expressed dissatisfaction with the medical contractor and promised to mention plaintiff's name at a meeting scheduled that day. ECF No. 5 at p. 6.
On June 23, 2011, plaintiff brought to the Warden's attention an erroneous response given to a complaint he filed about his foot. Plaintiff states the response indicated he underwent a biopsy of his foot on June 4, 2011, when in fact he had not. Id.
In July the condition of plaintiff's foot continued to worsen. He claims on July 6, 2011, he asked Nurse Heather how he could obtain a medical boot for his foot since it was leaking very badly, soaking through bandages, socks, and tennis shoe soles. Plaintiff claims the nurse looked at his foot, and agreed it had gotten worse, and told him he should stop soaking it and stop using the ointment but to continue cleaning it. She never answered plaintiff's question regarding a medical boot, requiring plaintiff to resort to using toilet paper to wrap his foot after the bandages became soaked. At this time plaintiff also noticed his right foot was becoming infected again between the toes. ECF No. 5 at p. 7.
On July 1, 2011, plaintiff states P.A. Deirdre performed a biopsy on his left foot which caused it to bleed profusely. Plaintiff claims the procedure was extremely painful as the drug used to numb his foot did not work and the tools used initially did not work. He further asserts that a nurse had to intervene during the procedure after seeing how many times plaintiff had been "stuck" and noticing the amount of blood coming from his foot. ECF No. 1 at p. 5.
On July 12, 2011, plaintiff was told by Heather that his foot soaks had been discontinued and that he had been diagnosed with a staph infection. Later that day plaintiff spoke with the Warden regarding the lack of medical treatment and the worsening condition of his foot. Plaintiff gave the Warden administrative remedy complaints (ARPs) concerning officers who allegedly deprived him of medical care and harassed and retaliated against him for filing ARPs, and the lack of medical care. The following day plaintiff was called to medical and examined by physician's assistant Swecker who noted the conditions of his hands, foot, and "jock" area. Plaintiff was prescribed Tolenaftate and scheduled for morning bandage changes. Plaintiff states that on July 14, 2011 he noticed that since the soaks were stopped the infection in his foot was draining less, but the area had hardened and cracked. He also states the area burned and caused a lot of pain. In addition plaintiff states his calf area was tight, sore and hard to move. ECF No. 5 at p. 7.
On July 22, 2011, plaintiff went to the medical unit even though he was not on the list for nurse treatment. He states Nurse Aaron cleaned and re-bandaged his foot and commented that he did not know why plaintiff's name was not on the list because he had put his name down for nurse treatment. Plaintiff claims he was told he should see a podiatrist because the infection of his foot was worsening and the treatment provided was "obviously not working." Id.
Rule 56(a) of the Federal Rules of Civil Procedure provides that the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witnesses' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotations omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
The Eighth Amendment prohibits "unnecessary and wanton infliction of pain" by virtue of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173 (1976). "Scrutiny under the Eighth Amendment is not limited to those punishments authorized by statute and imposed by a criminal judgment." De'Lonta v. Angelone, 330 F.3d 630, 633 (4
The subjective component requires "subjective recklessness" in the face of the serious medical condition. Farmer, 511 U.S. at 839-40. "True subjective recklessness requires knowledge both of the general risk, and also that the conduct is inappropriate in light of that risk." Rich v. Bruce, 129 F.3d 336, 340 n. 2 (4
The medical defendants explain that plaintiff has diabetes mellitus and a history of granuloma annulare, a common foot disorder for people with diabetes. ECF No. 19 at Ex. A, pp. 132 - 137. When plaintiff first reported the issue to medical staff he stated the problem began "years ago." Id. at p. 137. He was seen by a nurse who provided plaintiff with gauze to protect his foot while wearing shoes and referred him to a doctor for a follow-up exam. Id. Plaintiff was seen on June 4, 2011, by Dr. Mark Davis, who ordered a "punch biopsy" for the infected area of his foot and prescribed medications including topical ointments. Id. at pp. 132 - 136. The following day plaintiff was added to the nurse visit schedule so his foot could be cleansed and wrapped with gauze containing Silvadene. Id. at p. 131. In addition, plaintiff was seen by a nurse for foot soaks and bandage changes. Id. at pp. 47 - 49; 59 - 61; and 107 (wound care monitor charts dated July 12, 2011 through September 2, 2011).
On July 1, 2011, a biopsy was performed. Id. at p. 118. On July 13, 2011, plaintiff complained that the foot-soaking regimen was making the condition of his foot worse. Records prepared in response to his complaint indicate that the wound culture reported staph aureus resistant to penicillin and Bactrim. Id. at p. 113. Plaintiff's left foot is described as having large macerated patches of skin. Id. An order was written to provide plaintiff with dressing changes as needed. Id.
On July 26, 2011, plaintiff was seen by a podiatrist who noted the plantar surface of his left foot was "most concerning" and was possibly a stage two ulcer. Id. at p. 103. Additionally, the podiatrist noted that failed out-patient therapies included hydrocortisone topical, tolnaftate, coal tar and triamcinolone which not only failed, but worsened the condition of plaintiff's foot. Id. The following day it is noted that plaintiff is "taking antibiotics to resolve cellulitis." Id. at p. 99. Plaintiff was later sent to Bon Secours hospital for a consultation on August 26, 2011, where he was treated for a staph infection with oral Lamisil (250 mg) which he was directed to take once daily for 30 days. Id. at pp. 67 - 68. Plaintiff was advised that if his foot did not improve he would need to be seen by a dermatologist. Id.
While the medical records support plaintiff's assertions that the condition of his foot worsened during the times noted in his complaint, subsequent to that time frame his foot began to heal. By September 16, 2011, medical staff noted that plaintiff's foot was "healing." Id. at pp. 47 - 49. On October 5, 2011, plaintiff's wound care was changed to a self-care program and he was given supplies to continue treating his foot which was described at that time as "peeling and flaky." Id. at p. 29. By November 2, 2011, it is noted that no wound can be seen on plaintiff's feet. Id., at p. 15.
There are no records indicating that plaintiff was given iodine to soak his foot. There are notations in the records provided by medical defendants that plaintiff reported a fish and peanut allergy to medical staff. In addition, it is noted that his initial intake was lost and the allergies he reported were not noted in his record. Id. at p. 50. In any event, there is no indication that medical defendants were deliberately indifferent to the worsening condition of plaintiff's foot. In fact, the undisputed record establishes that plaintiff's wound was monitored carefully, appropriate medications were provided, and referrals to specialists made. The condition of plaintiff's foot was a serious medical condition and was treated as such. The fact that the infection was not cured immediately was unfortunate, but is not evidence that medical defendants were deliberately indifferent to plaintiff's serious medical need.
Plaintiff seems to concede in his response in opposition that the infection in his left foot was in fact treated, but he claims the rash on his hands and wrists were not. ECF No. 31. He alleges that the medical records submitted by medical defendants could be forgeries and that some of the records do not indicate that he received treatment. Id. at pp. 6 - 8. In order to survive a motion for summary judgment the non-moving party must bring to light evidence of a genuine dispute of material fact. To satisfy that burden, plaintiff may not simply rely on unfounded allegations of fraud, nor can he change the focus of his claim to another malady that was mentioned in records but was not the focus of treatment. To the extent that plaintiff's hands were not treated, he has neither established that the rash on his hands was a serious medical condition nor that he suffered an injury as a result of the alleged failure to treat. Moreover, "an inadvertent failure to provide adequate medical care does not amount to deliberate indifference." Estelle v. Gamble, 429 U.S. at 105.
Additionally, plaintiff cannot manufacture a genuine dispute of material fact by simply attaching an audit report from 2007 indicating problems with the medical contractor services in the Maryland Division of Correction. ECF No. 31 at pp. 28 - 43. There is nothing to indicate that plaintiff has personally suffered as a result of a particular finding made in the report. The medical defendants are entitled to judgment in their favor.
Section 1983 liability on the part of the supervisory defendants requires a showing that: A(1) the supervisory defendants failed promptly to provide an inmate with needed medical care, (2) that the supervisory defendants deliberately interfered with the prison doctors' performance, or (3) that the supervisory defendants tacitly authorized or were indifferent to the prison physicians' constitutional violations." Miltier v. Beorn, 896 F. 2d at 854 (internal citations omitted); see also Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984) (supervisory liability for an inmate's beating by prison guards). "[L]iability ultimately is determined `by pinpointing the persons in the decisionmaking chain whose deliberate indifference permitted the constitutional abuses to continue unchecked.'" Shaw v. Stroud, 13 F.3d 791, 798 (4
The basis for plaintiff's claim against correctional defendants Gregg Hershberger and J. Michael Stouffer is that he filed ARPs about his medical care and they failed to intervene on his behalf. ECF No. 1 and 5. He does not illuminate any further the basis for correctional defendants' liability in his response in opposition
With respect to plaintiff's claim regarding being denied the opportunity to go to medical for a bandage change before going to court, correctional defendants deny plaintiff ever made a statement regarding that need. ECF No. 27 at Ex. 3 and 4. Plaintiff does not refute the allegation. In any event, if the claim is taken as true and plaintiff was required to travel out to court on July 8, 2011, wearing dirty bandages, he has failed to allege a resultant injury.
