Moses v. Moubarek

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

JOSHUA MOSES,

Plaintiff,

v.

MOHAMED S. MOUBAREK,

CHRISTOPHER TODD,

Civil Action No. TDC-15-3875

LISA HALL,

PHIL BOCH,

KRISTINE SWICK,

MICHELE VOORHEES and

THE UNITED STATES OF AMERICA,

Defendants.

MEMORANDUM OPINION

Plaintiff Joshua Moses, formerly an inmate at the Federal Correctional Institution in

Cumberland, Maryland (“FCI-Cumberland”), has filed suit against the United States of America

and several FCI-Cumberland medical providers, Defendants Dr. Mohamed S. Moubarek,

Christopher Todd, Lisa Hall, Phil Boch, Kristine Swick, and Michelle Voorhees (collectively “the

Medical Defendants”). Presently pending before the Court is Defendants’ Motion to Dismiss the

Second Amended Complaint. The Court has reviewed the operative pleading and the briefs and

finds no hearing necessary. D. Md. Local R. 105.6. For the reasons set forth below, Defendants’

Motion to Dismiss will be DENIED.

BACKGROUND

Much of the factual background of this case is set forth in the Court’s September 9, 2016

Memorandum Opinion denying the Motion for a Preliminary Injunction, Moses v. Stewart (“Moses

I”), No. TDC-15-3875, 2016 WL 4761929, at *1-5 (D. Md. Sept. 9, 2016), and the Court’s

September 26, 2017 Memorandum Opinion denying Defendants’ first Motion to Dismiss, or in the

Alternative, for Summary Judgment, Moses v. Stewart (“Moses II”), No. TDC-15-3875, 2017 WL

4326008, at *1-4. The Court incorporates by reference that factual background, summarizes only

those portions of that history most relevant to the pending Motion, and describes in detail only the

new facts alleged in the Second Amended Complaint.

I. Factual Background

In 2009, Moses was shot multiple times in his torso, resulting in serious injuries that

required multiple operations to repair. In 2014, Moses was taken into custody on federal criminal

charges, and on May 26, 2015, after being convicted on those charges, he was transferred to FCI-

Cumberland to serve his sentence. Soon after his arrival at FCI-Cumberland, Moses notified

medical staff of his concern about what appeared to be a piece of metal wire protruding from a

prior surgery site in his abdomen. As detailed in this Court’s prior opinions, Moses persistently

complained to FCI-Cumberland medical staff about the continued protrusion of that piece of wire,

accompanied by oozing and possible infection in the flesh around it, and repeatedly requested, but

did not receive, a surgical consultation. See Moses I, 2016 WL 4761929, at *2; Moses II, 2017

WL 4326008, at *1-2.

In February 2016, Moses was temporarily moved to the Curran-Fromhold Correctional

Facility (“CFCF”), a county prison located in Philadelphia, Pennsylvania, pursuant to a writ of

habeas corpus issued to ensure Moses’s presence as a witness in an unrelated criminal proceeding.

In March 2016, Moses was examined by Dr. Mohammed Haque, a CFCF physician, who referred

him for a surgical consultation at Temple University. According to Moses, Dr. Haque asserted

that “no prison doctor is qualified to treat his condition or pain.” 2d Am. Compl. ¶ 69, ECF No.

131. A surgical consultation was scheduled for April 8, 2016, a date that ultimately conflicted

with his scheduled court appearance. Moses was transferred back to FCI-Cumberland without

having had the surgical consultation.

Back at FCI-Cumberland, Moses emailed Dr. Moubarek multiple times to request an

examination based on the wires protruding from his abdomen and the resulting pain. During a

May 19, 2016 examination by Dr. Stephany McGann, Moses asked why he never received the

surgical consultation that she had approved on November 20, 2015, before his temporary transfer

to CFCF. Dr. McGann told Moses that Dr. Moubarek had denied that consultation. Moses again

emailed Dr. Moubarek but received no response.

On May 25, 2016, Moses began vomiting blood in his cell. After an hour of delay, Moses

was seen by Defendant Christopher Todd, an FCI-Cumberland nurse, who allegedly stated that

Moses had “genuine complaints and issues,” and that “[s]ome mornings,” Todd “wan[ted to]

scream at Moubarek and ask him what is he doing.” Id. ¶ 79. Although Todd informed Moses

that Dr. McGann would see him, she told Moses that he had to wait to be seen by Dr. Moubarek.

When Dr. Moubarek arrived a few hours later, he refused to see Moses and instead sent him back

to Dr. McGann. During that encounter, Dr. McGann again stated that Dr. Moubarek had canceled

her previous request for a surgical consultation, but she agreed to resubmit it. Nothing came of

that request. Instead, in March 2017 and again in April 2017, another member of the prison

medical staff submitted separate requests for a surgical consultation for Moses. The second of

these requests was approved on April 20, 2017. On May 18, 2017, Moses had outpatient surgery

to remove the protruding wires. In June 2017, Moses was transferred to another federal prison.

II. Procedural History

In December 2015, Moses, then self-represented, filed a Petition for a Writ of Habeas

Corpus under 28 U.S.C. § 2241, as well as a Motion for a Temporary Restraining Order and a

Preliminary Injunction, naming various medical and other prison staff at FCI-Cumberland as

Defendants. In his filings, Moses asserted that in failing to address the protruding wires, the

defendants had been deliberately indifferent to a serious medical need, in violation of his right

under the Eighth Amendment to the United States Constitution to be free from cruel and unusual

punishment. Based on the substance of his various filings, the Court construed his claim as a civil

rights action under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Moses I, 2016

WL 4761929, at *1, *5. The Court denied the motion but ordered Defendants to answer or

otherwise respond to his claims. Id. at *8.

In October 2016, Defendants filed a Motion to Dismiss, asserting that several Defendants

were immune from suit, that the remaining Defendants were entitled to qualified immunity, and

that Moses failed to state a claim upon which relief could be granted. The Court granted that

motion in part, finding that certain Defendants had immunity because they were employees of the

United States Public Health Service. Moses II, 2017 WL 4326008, at *4. The Court otherwise

denied the motion. Id. at *8. In December 2017, the remaining Defendants filed an Answer to an

Amended Complaint that Moses, with the benefit of counsel, had filed in November 2017. ECF

Nos. 86 & 89. Soon after the commencement of discovery, Moses’s counsel moved to withdraw,

and pro bono counsel was appointed. The case was then stayed at the request of the parties, to

account for difficulties in the transfer of records between Moses’s previous and new counsel. In

September 2018, the parties briefly re-entered discovery, but in November 2018, the case was

again stayed to enable Moses to exhaust administrative remedies relating to a claim under the

Federal Tort Claims Act, 28 U.S.C. § 2671–80 (2018).

On February 15, 2019, Moses filed with the Bureau of Prisons (“BOP”) an administrative

claim under the FTCA. The BOP denied that claim on August 19, 2019. In October 2019, the

parties asked the Court to lift the stay and proposed a schedule whereby Moses would again amend

his Complaint. The Court approved the proposed schedule, and on November 11, 2019, Moses

filed another Amended Complaint in which he asserted two claims: (1) a Bivens claim against the

Medical Defendants based on the alleged failure to provide constitutionally adequate medical care;

and (2) an FTCA claim against the United States for negligent medical treatment.

On January 2, 2020, Defendants filed a second Motion to Dismiss in which they argued

that Moses’s FTCA claim is barred because Moses failed to comply with Maryland exhaustion

requirements for medical malpractice claims. Alternatively, Defendants argued that Moses’s

FTCA claim fails because it was filed outside the two-year statute of limitations. Defendants

further asserted that because Moses’s FTCA claim fails, the FTCA judgment bar, 28 U.S.C. §

2676, mandates that his Bivens claim also fails. On January 30, 2020, with mutual consent of the

parties and in response to arguments raised in the second Motion to Dismiss, Moses filed what

was identified as the Second Amended Complaint, which added allegations relating to Moses’s

compliance with the Maryland exhaustion requirements for medical malpractice claims. Based on

that Second Amended Complaint, the parties agree that Defendants’ arguments as to state

exhaustion requirements are moot. The parties further agree that the Court may now consider the

remaining arguments in the second Motion to Dismiss as applicable to the Second Amended

Complaint.

DISCUSSION

The second Motion to Dismiss hinges on one contention: that because Moses first began

receiving what he contends to be negligent medical treatment at FCI-Cumberland soon after his

arrival in that facility on May 26, 2015, but did not file his FTCA claim until February 15, 2019,

that claim falls outside the FTCA’s two-year statute of limitations period. Defendants argue that

the FTCA judgment bar, in turn, precludes Moses from asserting any constitutional claim based

on the same operative facts. Moses opposes the Motion based on the contention that the continuous

treatment doctrine tolled the statute of limitations period.

I. Legal Standard

To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the

complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). A claim is plausible when the facts pleaded allow “the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. Legal

conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint

as a whole, consider the factual allegations in the complaint as true, and construe the factual

allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994);

Lambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).

II. FTCA

An FTCA claim is “forever barred” unless an administrative complaint is filed with the

appropriate federal agency “within two years after such a claim accrues.” 28 U.S.C. § 2401(b).

In the context of medical negligence claims, that accrual date defaults to the date on which the

plaintiff gained “possession of the critical facts that he has been hurt and who has inflicted the

injury.” United States v. Kubrick, 444 U.S. 111, 122 (1979). However, under the continuous

treatment doctrine, “the statute of limitations does not begin to run on a medical malpractice claim

upon a claimant’s initial discovery of an injury and its cause so long as the claimant remains under

the ‘continuous treatment’ of a physician whose negligence is alleged to have caused the injury.”

Miller v. United States, 932 F.2d 301, 304 (4th Cir. 1991). In such instances, the accrual date is

the date the continuous treatment stops. Id. The rationale behind the doctrine is one of concern

about the doctor–patient relationship. A “rigid application” of the FTCA statute of limitations

might “deprive a medical patient of her right to place trust and confidence in her physician,” id.

(citation omitted), or might prevent a patient from “benefit[ting] from his physician’s corrective

efforts without the disruption of a malpractice action,” Otto v. Nat’l Inst. of Health, 815 F.2d 985,

988 (4th Cir. 1987). Under the continuous treatment doctrine, a patient “is excused from

challenging the quality of care being rendered until the confidential relationship terminates.” Otto,

815 F.2d at 988. The doctrine applies only “when the treatment at issue is for the same problem

and by the same doctor, or that doctor’s associates or other doctors operating under his direction.”

Miller, 932 F.2d at 305.

Defendants argue that Moses’s continuing treatment at FCI-Cumberland under Dr.

Moubarek’s overall authority was interrupted by his temporary detention at CFCF from February

2016 to April 2016, during which he was seen by a different physician, Dr. Haque, relating to the

protruding wire. They further argue that no link can be established between the CFCF medical

staff and the FCI-Cumberland staff that would support the argument that Dr. Haque provided

treatment to Moses under the direction of Dr. Moubarek or other FCI-Cumberland medical

personnel. They therefore assert that Moses’s claim accrued no later than February 2016, such

that his February 2019 FTCA claim was untimely.

The Court is not persuaded. From the time he was designated to FCI-Cumberland in 2015

until he finally received surgery in May 2017, Moses consistently sought and received medical

care relating to the protruding wire from the FCI-Cumberland medical staff under the leadership

of Dr. Moubarek. As alleged in the Second Amended Complaint, Moses had approximately ten

visits with FCI-Cumberland medical staff, five of which included Dr. Moubarek, from May 2015

to February 2016, when he was involuntarily and temporarily sent to CFCF. Then, when he

returned to FCI-Cumberland in April 2016, he had approximately four visits with FCI-Cumberland

medical staff under Dr. Moubarek’s direction relating to the same condition, before the May 2017

surgery. This course of treatment was continuous and ongoing throughout the two year period.

The single visit with Dr. Haque at CFCF did not break this chain of continuous treatment.

First, the United States Court of Appeals for the Fourth Circuit has never held that a single medical

visit to a different medical provider precludes the application of the continuous treatment doctrine

where the primary course of treatment continued on after such a visit. In defining the doctrine, the

Fourth Circuit has not focused on intervening medical visits but instead has held that the patient is

excused from challenging the quality of care being rendered until the confidential relationship

terminates.” Otto, 815 F.2d at 988 (emphasis added). Notably, in Miller, the plaintiff was

examined in 1983 at Fort Myer in Arlington, Virginia by a government physician, Dr. Bomar, who

did not order a mammogram for her, had a medical visit in January 1984 at Walter Reed Army

Medical Center (“WRAMC”) with a different doctor who ordered a mammogram, then returned

to Dr. Bomar for a visit in February 1984. Miller, 932 F.2d at 302. Although the court in Miller

held that the continuous treatment doctrine did not apply to extend the accrual of the plaintiff’s

malpractice claim for failure to diagnose breast cancer past February 1984, because the treatment

after that date was provided by other government doctors unaffiliated with Dr. Bomar, the court

notably assumed without deciding that the continuous treatment by Dr. Bomar extended to

February 1984, even with the intervening treatment by the WRAMC physician. Id. at 304-05. The

court also focused on the fact that the plaintiff had a duty to inquire into the conduct of “a doctor

with whom the personal relationship had terminated,” reflecting that the key marker in the analysis

is the end of the continuous treatment relationship with a doctor, rather than the presence of a

single visit to another physician within that ongoing treatment relationship. Id.; see Otto, 815 F.2d

at 988. The Court therefore concludes that the continuous treatment doctrine extended the accrual

of Moses’s claim until his ongoing treatment for his condition by Dr. Moubarek ended in June

2017.

Second, even if a single instance of intervening medical treatment by an independent

medical provider could sever the continuous treatment, Dr. Haque did nothing more than refer

Moses for a surgical consultation that never took place. Notably, such a consultation would have

been at Temple University, the same facility to which FCI-Cumberland had recently sent

photographs of Moses’s condition at Dr. Moubarek’s direction. Thus, Moses received no actual

treatment for his condition outside the network of medical providers approved by Dr. Moubarek

and the FCI-Cumberland medical staff. See Otto, 815 F.2d at 989 (holding that the continuous

treatment doctrine applied throughout the plaintiff’s period of treatment where all of her treatment

occurred at the National Institutes of Health or with physicians in consultation with NIH).

Third, Defendants’ argument is based on a faulty analogy between Moses’s situation as an

incarcerated individual and that of a private citizen able to make personal healthcare choices. This

is not a case in which Moses affirmatively chose to seek a second opinion or an alternative medical

provider. See Holland v. United States, 302 F. Supp. 2d 484, 486, 488 (M.D.N.C. 2004) (holding

that the continuous treatment doctrine did not apply where the plaintiff, dissatisfied with his

treatment at the Veterans Administration, saw another physician on the advice of an attorney).

Moses was sent to CFCF not for medical treatment but because he was subpoenaed to testify in a

criminal proceeding. The visit was temporary and for that sole purpose, and it was understood that

Moses would return to FCI-Cumberland after his testimony. Moses was examined at CFCF not

because he sought out Dr. Haque, but because his medical condition was a serious one requiring

regular clinical intervention and, as a prisoner, he could use only the medical facilities available to

him. Where Moses, in light of both the seriousness of his condition and his incarceration, “had

virtually no alternative” but to make use of the only “possible treatment options” available to him

as a prisoner, and did not actively choose to terminate his treatment relationship with FCI-

Cumberland, the Court finds that finds that the continuous treatment period was not severed by the

medical visit at CFCF. Cf. Otto, 815 F.2d at 989 (considering the fact that the uniqueness of the

plaintiff’s condition meant that treatment was available only at or in consultation with the National

Institutes of Health in finding that the continuous treatment doctrine applied across visits with

multiple doctors in different locations). The Court therefore concludes that the continuous

treatment doctrine applied to toll the accrual of Moses’s claim into and through the time period of

his treatment and surgery after his return to FCI-Cumberland, which ended when he was

transferred to another facility in June 2017.

Finally, the Court notes that even if Moses’s visit with a CFCF doctor were deemed to have

broken the chain of his continuous treatment at FCI-Cumberland, it is undisputed that from May

2016 to June 2017, Moses was under the continuous care of FCI-Cumberland medical staff, which

was under Dr. Moubarek’s direction. According to the Second Amended Complaint, during that

one-year period, Moses continued to be denied a referral for a surgery consultation by Dr.

Moubarek even though another FCI-Cumberland physician, Dr. McGann, had recommended it for

a second time as early as May 2016. Further, a similar request in March 2017 by another member

of the FCI-Cumberland medical staff was not approved, and Moses was not provided with surgery

to remove the protruding wire until May 2017. These allegations alone are sufficient to permit

Moses’s FTCA claim to continue as to that time period.

III. Bivens

Because the Court will deny the Motion to Dismiss as to the FTCA claim, Defendants’

argument for dismissal of Moses’s Bivens claim—that it is foreclosed by the FTCA judgment

bar—necessarily fails because it is entirely dependent on dismissal of the FTCA claim. See 28

U.S.C. § 2676 (providing that “[t]he judgment in an action under [the FTCA] shall constitute a

complete bar to any action by the claimant, by reason of the same subject matter, against the

employee of the government whose act or omission gave rise to the claim”).

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss will be DENIED. A separate

Order shall issue.

Date: May 21, 2020 /s/ Theodore D. Chuang

THEODORE D. CHUANG

United States District Judge