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Gladu v. Correct Care Solutions

United States District Court, D. Maine

December 18, 2017

CORRECT CARE SOLUTIONS, et al., Defendants


          John C. Nivison U.S. Magistrate Judge

         In this action, Plaintiff Nicholas Gladu alleges that Defendants have acted with deliberate indifference to his serious medical needs, discriminated against him on the basis of disability, retaliated against him for engaging in conduct protected under the First Amendment, and breached duties owed to him under Maine law.

         The matter is before the Court on Defendants' motions for summary judgment. (Motion for Summary Judgment of Defendants Maine Department of Corrections and Susan Carr, ECF No. 261; Motion for Summary Judgment of Defendants Correct Care Solutions, Robert Clinton, M.D., George Stockwell, D.O., and Wendy Riebe, ECF No. 266.) In addition, the matter is before the Court on Plaintiff's Motion for the Court to Take Judicial Notice (ECF No. 369); Motion to Strike the Supplemental Declaration of Robert Clinton, M.D. (ECF No. 376); Motion for Consideration of New Evidence (ECF No. 462); Motion to Add New Evidence to the Record (ECF No. 463); and Motion for Judicial Notice (ECF No. 471).

         Following a review of the record and after consideration of the parties' arguments, I grant Plaintiff's motions requesting the consideration of certain evidence, deny Plaintiff's motions for judicial notice and motion to strike, and recommend the Court grant Defendants' motions for summary judgment.

         Plaintiff's Record-Related Motions

         1. Plaintiff's Motion to Strike the Supplemental Declaration of Dr. Clinton

         In response to the declaration Plaintiff filed in connection with the summary judgment motion, Defendant Correct Care Solutions (CCS) filed a supplemental declaration of Dr. Clinton. (ECF No. 357-1.) Plaintiff, challenging certain assertions in the declaration, asks the Court to strike the declaration. The record reflects that regardless of the merit of the assertions made in the declaration, CCS reasonably sought to address through the declaration certain issues raised by Plaintiff in his response to the summary judgment filing. Furthermore, through his filings, Plaintiff has addressed his objections to Dr. Clinton's assertions. The information included in the declaration and in Plaintiff's response is relevant to the summary judgment issues. Plaintiff's motion to strike, therefore, is denied. The information included in the declaration and in Plaintiff's response will be considered as part of the summary judgment record.

         2. Plaintiff's Motions for the Court to Take Judicial Notice

         Plaintiff moves the Court, as part of the summary judgment analysis, to take notice of two medical treatises he cites in support of his claims. (ECF No. 369.) In addition, Plaintiff requests that the Court take notice that certain of Plaintiff's symptoms are symptoms that persons with Cushing Syndrome experience. (ECF No. 471.)

         Federal Rule of Evidence 201(b) provides that the Court “may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known or within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b).

         Plaintiff has not identified any specific facts of which he asks the Court to take judicial notice. Instead, Plaintiff evidently asks the Court to take judicial notice of the entire treatises. Plaintiff has not established that either treatise, or any of the content of the treatises, constitutes a fact for which the Court should take judicial notice in accordance with Evidence Rule 201(b).

         In addition, Plaintiff asks the Court to take notice that Plaintiff suffers from certain symptoms and that the symptoms are experienced by a person with Cushing Syndrome. In support of his request, Plaintiff asserts he relies upon information contained in a medical book entitled Current Medical Diagnosis and Treatment (2015). On this record, at least some of the symptoms experienced by Plaintiff are subject to reasonable dispute. In addition, Plaintiff in essence asks the Court, by judicial notice, to determine that Plaintiff in fact suffers from a certain condition. Plaintiff's diagnosis is the subject of medical opinion and is not a fact that is “not subject to reasonable dispute” as contemplated by Federal Rule of Evidence 201.

         3. Plaintiff's Motions Requesting Consideration of Additional Evidence

         Plaintiff moves for the consideration of supplemental evidence. Specifically, Plaintiff asks the Court to consider his sworn statement (a) that following his request in October 2017 to commence physical therapy, Defendants have not provided Plaintiff with physical therapy (ECF No. 462) and (b) that a laboratory report of blood work from November 2009 reflects that Plaintiff's glucose and testosterone levels were high at the time. (ECF No. 463.) Although Plaintiff filed the evidence after the close of the summary judgment briefing schedule, the evidence will be considered as part of the summary judgment record.

         Summary Judgment Facts 1.Summary Judgment Statement of the Correct Care Solutions Defendants

         The following facts introduced by the Correct Care Solutions Defendants (CCS Defendants), [1] through their summary judgment statement of material facts, are supported by record citation. (ECF No. 267.) Plaintiff has filed a “statement of disputed factual issues, ” through which statement Plaintiff denies or qualifies many of the statements offered by the CCS Defendants. (ECF No. 342.) Plaintiff, however, did not support his qualifications and denials with record citations.

         Dr. Clinton serves as the Regional Medical Director for CCS, which provides health care services to inmates within the State of Maine's correctional facilities, including the Maine State Prison and the MCC. (ECF No. 267, ¶ 1.) As the Regional Medical Director, Dr. Clinton generally oversees the medical care provided to inmates and he also provides some direct care to patients, including Plaintiff. (Id. ¶ 2.) Dr. Clinton has been involved in Plaintiff's health care treatment since 2013. (Id. ¶ 3.)

         Defendant George Stockwell, D.O., is a board certified osteopathic physician, who works as an urgent care physician at Mercy Express Care in Windham, Maine, a position he has held for nearly 8 years. (Id. ¶ 4.) Dr. Stockwell has also worked as a contract physician for CCS, and in that capacity has provided health care services to inmates at the MCC. (Id. ¶ 5.) In this role, Dr. Stockwell provided care and treatment to Plaintiff. (Id. ¶ 6.)

         Defendant Wendy Riebe is a licensed registered nurse, who serves as the Health Services Administrator (HSA) for CCS, a position she has held for three years. (Id. ¶ 7.) As the HSA, Ms. Riebe coordinates and monitors the implementation of health care services, including mental health, at the MCC, oversees health care staff at MCC, maintains administrative and fiscal functions of the MCC health care unit consistent with the CCS contract with the Maine Department of Corrections, including budgeting matters, and responds to patient complaints regarding the health care provided by CCS. (Id. ¶ 8.) Although Ms. Riebe does not provide direct patient care, she is responsible for the delivery of health care services to patients at the MCC. (Id. ¶ 9.)

         Plaintiff believes he is suffering from an undiagnosed but serious underlying medical condition that he asserts is causing him chronic and often severe physical pain in his hips and lower back and at times in various other joints. (Id. ¶ 10.) Plaintiff reports sores on his legs and feet, dry and itchy skin on the soles of his feet and various spots of hair loss on his legs and lower back; he believes the conditions reflect a serious health condition. (Id. ¶ 11.)

         Plaintiff suffers from bilateral trochanteric bursitis which causes him hip pain, and for which Dr. Clinton, Dr. Stockwell and other members of the medical staff have provided treatment, including a trial of pain relievers, exercises, prolotherapy injections, topical cream, and special medical shoes; they have also encouraged Plaintiff to participate in yoga to alleviate the physical discomfort of which he complains. (Id. ¶ 12.)

         According to Defendants, although Plaintiff reports that he is in pain as the result of the conditions about which he complains, the reported condition does not affect his level of function. (Id. ¶ 13.) Plaintiff functions normally within the correctional environment, has a normal gait, walks without a limp and at a brisk rate of speed, participates in recreational activities including softball and yoga, is able to move about the examination room easily, and presents no objective evidence that he is physically limited in any way. (Id. ¶ 14.) Dr. Clinton asserts that serious musculoskeletal or rheumatic medical conditions involve signs and symptoms that correlate with a patient's function. (Id. ¶ 15.)

         CCS provides a multidisciplinary approach to Plaintiff's treatment. The approach involves treatment by physicians, psychiatrists, nurse practitioners, behavioral health specialists, and mental health care providers. (Id. ¶ 16.) The treatment team meets on an as needed basis, including with representatives from the correctional staff, to discuss the treatment. (Id. ¶ 17.) In addition, the medical department has weekly provider calls, which include psychiatry, and Plaintiff is one of the patients about whom the department speaks regularly in order to provide him with consistent and appropriate care. (Id. ¶ 18.) Occasionally, the team meets with Plaintiff to discuss the medical plan and to address his questions and concerns. (Id. ¶ 17.) The assessments of the multidisciplinary team support the plan of care the health care team is providing to Plaintiff. (Id. ¶ 19.)

         Dr. Clinton and Dr. Stockwell have explained to Plaintiff extensively the reasons for the treatment decisions. (Id. ¶ 20.) According to Dr. Clinton, throughout the course of Plaintiff's treatment, there has been no clinical evidence of cancer, an autoimmune disease, or a serious underlying medical condition that would be responsible for Plaintiff's subjective symptoms. Rather, his symptoms are consistent with trochanteric bursitis in his hips, folliculitis on his arms, dry and itchy feet, and occasionally athlete's foot. (Id. ¶ 22.)

         Dr. Stockwell first saw Plaintiff on April 21, 2015. At that time, Plaintiff was considering injections to both greater trochanteric areas as a way to alleviate his pain, which was a therapy he had discussed with Dr. Clinton. (Id. ¶ 23.) Dr. Stockwell injected both hips with triamcinolone and lidocaine, which treatment provided Plaintiff with an immediate reduction in pain. Dr. Stockwell prescribed a 3-day course of ibuprofen to support that relief. (Id. ¶ 24.)

         On July 13, 2015, Plaintiff reported that he could not sleep because of pain, and he asked if he could be given an extra mattress. (Id. ¶ 28.) Pursuant to CCS protocol, a double mattress will be provided when a patient is in the second trimester of pregnancy or later, suffers from active skin ulcerations, suffers from acute congestive heart failure exacerbation or acute deep vein thrombosis. (Id. ¶ 26.) On occasion, a patient's condition might warrant a short term prescription for a double mattress; for example, when a patient is recovering from hip surgery. (Id. ¶ 27.) Although Plaintiff did not meet the criteria for a double mattress, Dr. Clinton discussed with the nurse practitioner that it might be medically necessary to prescribe one for him if the extra blanket and pillow previously prescribed were not effective in allowing Plaintiff to sleep. (Id. ¶ 29.)

         To assess Plaintiff's ability to sleep, Dr. Clinton asked the Department of Corrections to perform a sleep log to document Plaintiff's sleeping pattern. (Id. ¶ 30.) On July 25, 2015, Dr. Clinton met with the unit manager, case manager, and Plaintiff to discuss the results of the sleep log which documented that Plaintiff was observed to be sleeping through the night on the nights assessed. (Id. ¶ 33.) Dr. Clinton explained that in order to provide Plaintiff with a double mattress, he needed to see a correlation between the observed level of function and Plaintiff's reported inability to sleep. (Id. ¶ 34.) Because Dr. Clinton did not find a correlation, Dr. Clinton determined that a double mattress was not medically necessary.[2] (Id. ¶ 35.)

         Plaintiff was referred for an orthopedic consult to determine whether he was a candidate for iliotibial band surgery based on his complaints of hip pain. (Id. ¶ 31.) After examining Plaintiff in August 2015, Dr. Wayne Piers diagnosed Plaintiff with trochanteric bursitis, and concluded there was no need for surgery. He recommended a double mattress and an egg crate mattress, and physical therapy. He also suggested that an MRI might be warranted at some future date based on Plaintiff's condition. (Id. ¶ 39.)

         Because Dr. Piers recommended a double mattress and an egg crate mattress, Dr. Clinton contacted him to discuss whether the recommended treatment was medically necessary. (Id. ¶ 40.) Dr. Piers explained to Dr. Clinton that a double mattress or egg crate was not medically necessary to treat Plaintiff's condition, but that Plaintiff had raised the issue and requested the items. (Id. ¶ 41.)

         At the medical clinic on August 17, 2015, Dr. Clinton discussed with Plaintiff the conversation with Dr. Piers. (Id. ¶ 42.) Dr. Clinton informed Plaintiff that the medical staff would continue to monitor his function and make treatment decisions based on the relationship between their observations and his reports of symptoms. Dr. Clinton also reviewed with Plaintiff his sleep log, which reflected that he sleeps through the night. (Id. ¶ 43.) During the clinic visit, Dr. Clinton observed Plaintiff demonstrate excellent function when he got up from his chair and walked in the exam room. (Id. ¶ 44.) Dr. Clinton advised Plaintiff that he would be referred to physical therapy after he was released from one of the secure housing units. Plaintiff agreed with the plan. (Id. ¶ 45.)

         On September 29, 2015, Dr. Clinton met with Plaintiff and the nurse practitioner to discuss several issues. Plaintiff reported that he had noticed some improvement in his pain since starting the new medication and, although he believed that pain affected his ability to function, he reported that he was able to participate in indoor and outdoor recreation. (Id. ¶ 46.) Plaintiff asked that the providers inspect his mattress, which he felt was substandard. Dr. Clinton recommended that he contact the Department of Corrections to evaluate his mattress if he felt it was substandard. Plaintiff requested an MRI. Dr. Clinton advised Plaintiff that an MRI was not indicated as his function was normal. (Id. ¶ 48.) Dr. Clinton ordered an x-ray of Plaintiff's left hip, the results of which were normal. (Id. ¶ 49.) Plaintiff was offered physical therapy at the Maine State Prison in October 2015, which he refused.[3] (Id. ¶ 50.) The decision to send Plaintiff to physical therapy at Maine State Prison rather than at a private facility is based on security concerns and is a decision that is not made by the medical department. (Id. ¶¶ 51 - 52.) Dr. Stockwell has provided Plaintiff with exercises to perform and Plaintiff also participates in yoga as a means to help treat his complaints of hip pain. (Id. ¶ 53.)

         At a clinic visit on or about October 20, 2015, Dr. Clinton explained to Plaintiff that his hip x-rays were normal. Plaintiff again requested an MRI of his right hip. (Id. ¶ 54.) Dr. Clinton advised Plaintiff that given his level of function, an MRI was not necessary. (Id. ¶ 55.) Dr. Clinton and Plaintiff also discussed the fact that Plaintiff was on a list for a new mattress, and Dr. Clinton recommended that he place an extra blanket under his hip for extra cushioning. (Id. ¶ 56.) At the next clinic visit on November 9, 2015, Plaintiff reported improvement in his condition. He reported that his medical issues were being addressed satisfactorily and appropriately. (Id. ¶ 57.)

         On or about January 11, 2016, Dr. Clinton ordered new medical shoes for Plaintiff because the shoes issued by the Department of Corrections had not relieved his pain. Dr. Clinton and Plaintiff discussed that medical shoes would be discontinued if/when his trochanteric pain resolved. (Id. ¶ 58.)

         On February 17, 2016, Plaintiff reported to Dr. Stockwell complaints of hip, groin, and low back pain. Dr. Stockwell examined Plaintiff, reviewed x-rays, and assessed Plaintiff with bilateral greater trochanteric bursitis or more likely bursosis, left groin pain that was likely a muscular strain, back pain, and a dissatisfaction with his medical care. (Id. ¶ 60.) Dr. Stockwell discussed with Plaintiff a trial of prolotherapy. After reviewing materials provided by Dr. Stockwell, Plaintiff decided to proceed with the therapy. Dr. Stockwell subsequently injected both greater trochanteric areas with a dextrose 50% and lidocaine mix. (Id. ¶¶ 62 - 63.)

         When he next met with Plaintiff on March 9, 2016, Dr. Stockwell spent nearly an hour with him discussing his medical condition and answering his questions about his complaints and treatment. (Id. ¶ 68.) Plaintiff declined to proceed with further prolotherapy unless he could have an extra mattress or pain medications as the injection had caused him too much pain. He complained of bruising on his hips and attributed his pain to the lack of a supportive mattress. He also complained of low back pain and requested a back brace. (Id. ¶ 69.) Plaintiff reiterated his request for an MRI because he believed that the medical department was missing something. He was concerned that he could have cancer and that the medical providers would not discover the source of his pain until it was too late to treat the condition. Dr. Stockwell explained that he did not see a medical necessity for an MRI. (Id ...

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