# Moses v. Moubarek

> District Court, D. Maryland · May 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10203836

## Case

- **Court:** District Court, D. Maryland
- **Decided:** May 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10203836

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10203836. Public record. Not legal advice.