throbber
Case 1:13-cv-02506-WDQ Document 26 Filed 05/22/14 Page 1 of 10
`Case 1:13—cv—02506—WDQ Document 26 Filed 05/22/14 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF MARYLAND
`
`STEVEN KARL EDWARD BRADFORD
`
`Plaintiff
`
`v
`
`JASON CLEM. er al.
`
`Defendants
`
`*
`
`*
`
`*
`
`*
`
`*
`till!
`
`Civil Action No. WDQ-13-2506
`
`MEMORANDUM OPINION
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`Pending is Defendants’ Motion to Dismiss or for Summary Judgment (ECF No. 13)
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`which is opposed by Plaintiff (ECF Nos. 18, 20-21). Also pending are Plaintiffs Motions for
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`Appointment of Counsel (ECF No. 19), to Compel Discovery (ECF No. 23), and to Stay (ECF
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`No. 18).‘ No hearing is necessary. See Local Rule 105.6 (D. Md. 20] 1). For the following
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`reasons, the Defendants will be granted summaryjudgment, and the Plaintiffs motions will be
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`denied.
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`Plaintiff Steven Karl Edward Bradford is a prisoner confined at Patuxent Institution.
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`Defendants Dr. Jason Clem and Physician’s Assistant Carol Oltman are medical care providers at
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`Eastern Correctional Institution (“ECI”) where Bradford was incarcerated at all times relevant to
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`the Complaint.
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`Bradford states that on November 2, 2004, he sustained fractures to the floor of his lefi
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`eye socket with severe damage to the lefi intraorbital nerve.2 The damage to Bradford’s eye
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`resulted in the development of severe chronic pain in the left side of his face, migraines, and
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`' Bradford also moves “in opposition to Defendants’ Motion to Dismiss, or in the Alternative,
`Motion for Summary Judgment.” (ECF No. 20). As this filing was incorrectly docketed as a
`motion, rather than an opposition, it will be denied.
`
`2 The injuries to Bradford’s eye were sustained in a fight with another inmate.
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`

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`Case 1:13-cv-02506-WDQ Document 26 Filed 05/22/14 Page 2 of 10
`Case 1:13—cv—O2506—WDQ Document 26 Filed 05/22/14 Page 2 of 10
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`double vision upon upward gaze. He states that if he does not receive adequate medication to
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`treat his chronic pain and migraine, he is unable to engage in normal daily activities. Bradford
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`states that a specialist at the Wilmer Eye Institute, Dr. Michael Grant, told him that the injuries to
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`his eye are more than likely permanent. ECF No. 1 at 3-4.
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`On August 19, 2010, Bradford was seen by Dr. Cornell Shelton, a specialist at Bon
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`Secours Hospital in Baltimore, Maryland who increased the dosage of Bradford’s prescription
`for Tramadol and added a Depakote prescription to address Bradford’s nerve pain and migraines.
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`On November 18, 2010, Bradford went to see Dr. Shelton for follow-up. Bradford informed Dr.
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`Shelton that the medications provided in August gave him some relief, but he was still
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`experiencing significant pain. Shelton then prescribed Lyrica to address Bradford’s nerve pain.
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`Bradford states that for two years he remained on a regimen of Tramadol} Depakotef and
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`Lyricas with adequate pain relief, which enabled him to engage in nonnal daily activities. Id. at
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`4-5.
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`Bradford states that he was regularly seen in a chronic care clinic at EC] which is
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`reserved for inmates with serious medical issues such as chronic pain, asthma, hypertension, or
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`cancer. Before ECl’s change in contracted health care providers on July I, 2012, Bradford states
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`that it was the practice for the chronic care doctor to evaluate Bradford and re-order this pain
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`medication regimen. When the change in health care providers occurred, the doctor who was
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`3 Tramadol is a narcotic-like pain reliever used to treat moderate to severe pain. See
`http://www.drugs.com/tramadol.html.
`
`4 Depakote is an anti-seizure medication that is used to treat seizures, treat manic episodes in
`bipolar disorder, and prevent migraine headaches. See http://www.drugs.com/depakote.html.
`
`5 Lyrica is an anti-epileptic drug that slows impulses in the brain that cause seizures and affects
`chemicals in the brain that send pain signals across the nervous system. See
`http://www.drugs.com/lyrica.html.
`
`

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`Case 1:13-cv-02506-WDQ Document 26 Filed 05/22/14 Page 3 of 10
`Case 1:13—cv—O2506—WDQ Document 26 Filed 05/22/14 Page 3 of 10
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`treating Bradford no longer worked in the chronic care clinic and, as a result, Bradford was not
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`seen in the usual 90-day period for evaluation and prescription renewal.
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`Id. at 5-6.
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`On August 1, 2012, Bradford submitted a request to medical staff for renewal of his pain
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`medications. because the prescriptions were due to expire and he had not been seen in the
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`chronic care clinic. Six days later, Bradford was seen in the medical department by Oltman who
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`listened to his heart and respiration, but asked no questions regarding his level of pain. Although
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`Bradford claims Oltman told him that all of his prescriptions had been renewed, Bradford later
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`discovered that only the Lyrica prescription was renewed. Bradford alleges that at the time this
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`occurred the three medications he was taking--Depakote, Lyrica, and Tramadol--were adequately
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`addressing his chronic pain. Despite Bradford’s well-documented pain issues, however, Oltman
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`allegedly failed to renew his prescriptions for Depakote and Tramadol. and did not provide
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`Bradford with substitute medications. Id. at 7-8.
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`On August 18, 2012, Bradford took his last doses of Depakote and Tramadol. He states
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`that after these two medications were no longer available to him, his pain increased significantly.
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`On August 21, 2012, Bradford contacted medical staff to inform them of the significant increase
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`in his pain and request medication to alleviate it. Bradford claims that his sick call request was
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`ignored. On August 22, 2012, Bradford states that he wrote a letter to the medical director, Dr.
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`Jason Clem, informing him that he was experiencing significant pain due to the failure to renew
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`his prescriptions for Depakote and Tramadol. Bradford alleges that this letter was also ignored.
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`Id. at 8-9.
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`Bradford states that he continued to contact Clem to request his assistance in letters dated
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`September 3 and 4, 2012. Also, on September 4, 2012, Bradford sent “an emergency grievance”
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`to the Warden’s office requesting that she intervene on his behalf. On the following day,
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`

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`Case 1:13-cv-02506-WDQ Document 26 Filed 05/22/14 Page 4 of 10
`Case 1:13—cv—02506—WDQ Document 26 Filed 05/22/14 Page 4 of 10
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`Bradford started receiving Depakote, and on September 6, 2012, he began receiving Tramadol.
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`He states that he was forced to go without Depakote and Tramadol for two weeks, which caused
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`him to suffer pain needlessly.
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`Id. at 9-1 0.
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`In response to Bradford’s grievance filed with the Warden, on September 13, 2012, he
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`was called to the medical unit to discuss the matter with the charge nurse, Jen Austin. Bradford
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`claims that Austin apologized to him for the delay in renewing his medication and claimed that
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`Oltman did not do so when Bradford was seen because she lacked the necessary license. Austin
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`asked Bradford to withdraw his grievance in light of the fact that he was currently receiving all
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`of his medication, but Bradford declined, stating that he wanted an official response regarding
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`the matter and intended to pursue it in court. Bradford claims that Austin became belligerent and
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`accused him of not really wanting the medication, only a legal cause of action. Bradford further
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`alleges that Austin claimed there was “a lot of paperwork” involved in getting Bradford’s
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`prescriptions renewed.
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`Id. at 10 — ll.
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`Defendants admit that when Oltman saw Bradford on August 7, 2012 in response to his
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`sick call request, Oltman only submitted a renewal request for Bradford’s Lyrica prescription--
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`and did not request renewal of his Tramadol and Depakote prescriptions--because she does not
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`have a license to prescribe narcotic class medications. ECF No. 13, Ex. 2 at 94. Oltman did,
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`however, make a request for Bradford to be seen by another provider. Id. Ex. 3.
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`Bradford was seen again on September 4, 2012 by Judith I-learthway, Nurse Practitioner,
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`for renewal of his Tramadol and Depakote prescriptions.
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`Id. Ex. 2 at 18. On that date, Bradford
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`was provided with prescription renewals for both medications which began September 4, 2012
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`and continued through January 4, 2013. Id. Defendants allege that between August 17, 2012--
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`the date Bradford's prescriptions expired--and September 4, 2012, there is no record of Bradford
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`

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`Case 1:13-cv-02506-WDQ Document 26 Filed 05/22/14 Page 5 of 10
`Case 1:13—cv—02506—WDQ Document 26 Filed 05/22/14 Page 5 of 10
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`attempting to contact medical staff to inform them that he was experiencing a significant increase
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`in pain, nor did Bradford tell Hearthway about an increase in pain when he was seen on
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`September 4, 2012. Id. at 18-94. Defendants further allege that the brief interruption in
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`Bradford’s medication was not the result of any intentional conduct on their part. Id. Exs. 1-3.
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`Plaintiffs motions
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`Bradford moves for appointment of counsel, stating that he is unable to afford counsel
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`and that his incarceration will limit his ability to effectively litigate this matter. ECF No. 19.
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`Federal district court judges have discretionary power to appoint counsel under 28 U.S.C.
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`§ 1915(e)(l) when an indigent claimant presents exceptional circumstances. See Cook v.
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`Bounds, 518 F.2d 779, 780 (4th Cir. 1975); see also Branch v. Cole, 686 F.2d 264, 266 (5th Cir.
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`1982). Upon careful consideration of the motions and previous filings by Bradford, the Court
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`finds that he has demonstrated the ability to either articulate the legal and factual basis of his
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`claims himself or secure meaningful assistance in doing so. No hearing is necessary to the
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`disposition of this case, and there are no exceptional circumstances to warrant the appointment of
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`counsel under §l9l5(e)(l ). The Motion for Appointment of Counsel will be denied.
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`Bradford also filed Motions to Stay Defendants’ Motion to Dismiss or for Summary
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`Judgment and to Compel Discovery. ECF Nos. 18. 23. He requests a stay, because he has
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`served interrogatories on counsel to which they had thirty days to respond. ECF No. 18. In his
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`Motion to Compel, Bradford seeks to compel Defendants to answer the interrogatories, because
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`the reason they gave for not providing a response was inadequate. ECF No. 23.
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`Local Rule 803.] (D. Md. 20l 1) provides that “discovery shall not commence until the
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`issuance of a Scheduling Order.” Also, under Federal Rule of Civil Procedure 26(d)(l), “a party
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`may not seek discovery from any source before the parties have conferred as required by Rule
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`

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`Case 1:13-cv-02506-WDQ Document 26 Filed 05/22/14 Page 6 of 10
`Case 1:13—cv—02506—WDQ Document 26 Filed 05/22/14 Page 6 of 10
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`26(i).” Here, there has been no scheduling order issued setting forth deadlines for discovery,
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`and the parties have not held a discovery conference. Accordingly, there is no basis to stay
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`consideration of the Motion to Dismiss or for Summary Judgment, nor to compel Defendants to
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`respond to propounded interrogatories.
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`Standard of Review
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`Summary Judgment is governed by Fed. R. Civ. P. 56(a) which 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.
`
`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, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)).
`
`The court should “view the evidence in the light most favorable to .
`
`.
`
`. the nonmovant, and draw
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`all inferences in [his] favor without weighing the evidence or assessing the witness’ credibility."
`
`Dennis v. Columbia Colleton Med. Ctr.. lnc., 290 F.3d 639, 645 (4th Cir. 2002). The court must,
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`however, also abide by the “affirmative obligation of the trial judge to prevent factually
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`unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526 (internal
`
`

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`Case 1:13-cv-02506-WDQ Document 26 Filed 05/22/14 Page 7 of 10
`Case 1:13—cv—02506—WDQ Document 26 Filed 05/22/14 Page 7 of 10
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`quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and
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`citing Celotex Corp. v. Catrett, 477 U.S. 3 I 7, 323-24 (1986)).
`
`Analysis
`
`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 (4th
`
`Cir. 2003) (citing Wilson v. Seller, 501 U.S. 294, 297 (1991)). To state an Eighth Amendment
`
`claim for denial of medical care, a plaintiff must demonstrate that the actions of the defendants,
`
`or their failure to act, amounted to deliberate indifference to a serious medical need. See Estelle
`
`v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference to a serious medical need requires
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`proof that, objectively, the prisoner plaintiff was suffering from a serious medical need and that,
`
`subjectively, the prison staff was aware of the need for medical attention but failed to either
`
`provide it or to ensure the needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837
`
`(1994). Objectively, the medical condition must be serious. See Hudson v. McMillian, 503 U.S.
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`1, 9 (1992) (there is no expectation that prisoners will be provided with unqualified access to
`
`health care). Proof of an objectively serious medical condition, however, does not end the
`
`inquiry.
`
`The subjective component requires “subjective recklessness" in the face of the serious
`
`medical condition. See 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 (4th Cir. 1997). “Actual knowledge or awareness
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`on the part of the alleged inflicter .
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`.
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`. becomes essential to proof of deliberate indifference
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`

`
`Case 1:13-cv-02506-WDQ Document 26 Filed 05/22/14 Page 8 of 10
`Case 1:13—cv—O2506—WDQ Document 26 Filed 05/22/14 Page 8 of 10
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`‘because prison officials who lacked knowledge of a risk cannot be said to have inflicted
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`punishment.” Brice v. Virginia Beach Correctional Center, 58 F.3d 101, 105 (4th Cir. 1995)
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`(quoting Farmer, 51 1 U.S. at 844).
`
`I f the requisite subjective knowledge is established, an
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`official may avoid liability “if [he] responded reasonably to the risk, even if the harm was not
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`ultimately averted. See Farmer, 51 I U.S. at 844. Reasonableness of the actions taken must be
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`judged in light of the risk the defendant actually knew at the time. See Brown v. Harris, 240 F.
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`3d 383, 390 (4th Cir. 2000) (citing Liebe v. Norton, 157 F. 3d 574, 577 (8th Cir. 1998) (court
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`must focus on precautions actually taken in light of suicide risk, not those that could have been
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`taken)).
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`In opposition to Defendants’ Motion for Summary Judgment, Bradford states that there is
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`nothing in the record to suggest that Oltman referred Bradford to another provider for renewal of
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`his prescriptions. Also, Bradford states that he was not physically seen by Hearthway on
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`September 4, 2012; rather, his chart was administratively reviewed per the request of a nurse.
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`ECF No. 20 at 4 (citing Defendants’ Ex. 2 at 18-20). Bradford states that--given his absence
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`during Hearthway’s chart review--it was impossible for him to voice any complaints regarding
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`his increase in pain due to the lapse in his prescriptions.
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`Id.
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`Bradford also refutes Defendants’ assertion that he did not contact medical staff during
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`the two week lapse in receiving his medication. He states he filed a sick call slip on August 21,
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`2012.
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`Id. at 4-5; see also ECF No. 1 at 18. Also, Bradford states that he sent a letter to
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`Defendant Clem on August 22, 2012 informing him that he was suffering from migraines and an
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`increase in pain. In that letter, Bradford requested that Clem put him back on the medications
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`prescribed by the pain management specialist. ECF Nos. 1 at 19, Ex. C; 20 at 5. Bradford states
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`that he also sent another letter to Clem on September 3, 2012, again requesting to be put back on
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`

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`Case 1:13-cv-02506-WDQ Document 26 Filed 05/22/14 Page 9 of 10
`Case 1:13—cv—O2506—WDQ Document 26 Filed 05/22/14 Page 9 of 10
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`the medications previously prescribed or to be given a substitute medication to alleviate his
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`increased pain. ECF Nos. 1 at 20, Ex. D; 20 at 5. Further, Bradford disagrees that the delay was
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`“brief,” as characterized by the Defendants. ECF No. 20 at 6.
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`Defendants’ Reply” reiterates that the interruption of his medication did not result in an
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`exacerbation of his underlying condition and therefore does not constitute deliberate indifference
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`to a serious medical need. ECF No. 24. They again rely on Oltman’s affidavit to establish that a
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`referral was made and state that Bradford was seen the day after Bradford claims he wrote Clem
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`a letter.7 Defendants assert that Bradford’s pain during the time that he did not receive two of his
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`pain medications is not a significant injury for purposes ofa constitutional claim.
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`Bradford’s contentions about the lack of documentation of Oltman’s referral and that he
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`was not physically examined by Hearthway are well taken. Additionally, it is possible that
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`Bradford’s requests for prescription renewals were not documented. The fact that Bradford was
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`seen by Clem one day after he states he wrote to him complaining about the lapse in medication
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`strongly indicates that Bradford did voice his concerns during the period when he did not receive
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`Tramadol and Depakote. Bradford has also offered enough evidence regarding the level of pain
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`he suffered to establish that he objectively had a serious medical need.“ There is no evidence,
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`however, that Bradford was intentionally deprived of these medications. If the defendants’
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`purpose was to inflict suffering on Bradford, Oltman would not have provided him with a
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`° Defendants improperly assert that Plaintiffs Opposition Response was untimely filed. ECF
`No. 24. Bradford sought and was granted an enlargement of time in which to file his Opposition.
`ECF Nos. l5-l6.
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`7 Defendants contend that Bradford did not contact medical staff regarding the lapse in his
`medications.
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`8 It is undisputed that Bradford suffers from a chronic pain condition, that the medication at issue
`is prescribed to treat that condition, and that--without the medication--he suffers severe pain.
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`9
`
`

`
`Case 1:13-cv-02506-WDQ Document 26 Filed 05/22/14 Page 10 of 10
`Case 1:13—cv—O2506—WDQ Document 26 Filed 05/22/14 Page 10 of 10
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`prescription for Lyrica, and Bradford’s letter to Clem would not have prompted Hearthway to
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`renew the prescriptions for Depakote and Tramadol. As Bradford alleges in his Complaint, the
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`lapse in his prescriptions occurred at the same time as a change in the contractor for health care
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`services. While the error in this case seems easily avoided, there is no evidence of the subjective
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`recklessness required to establish an Eighth Amendment claim. Thus, Defendants are entitled to
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`summary judgment.
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`A separate Order follows.
`
` Date
`
`United States District Judge
`
`10

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