Parker v. Moubarek

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND □□□□

= AV

DWAYNE PARKER, )

)

Plaintiff, ) Civil Action No. 22-cv-01096-LKG

)

V. ) Dated: July 24, 2023

)

MOHAMED MOUBAREK, et ai., )

)

Defendants. )

MEMORANDUM OPINION

Self-represented plaintiff Dwayne Parker, a federal prisoner currently confined at the

Federal Correctional Institution in Cumberland, Maryland (“FCI Cumberland”), filed the instant

suit pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), against FCI

Cumberland Clinical Director Mohamed Moubarek and Certified Physician Assistant Tom Gera.

ECF No. 1. He raises an Eighth Amendment claim for deliberate indifference to a serious medical

need. Jd. at 6-7.! Specifically, Parker alleges that Defendants deprived him of proper medical care

after he suffered an injury to his left achilles tendon. /d. at 5-6. He seeks a declaratory judgment

and one million dollars in damages. Jd. at 7.

Defendants have moved to dismiss the Complaint, or in the alternative, for summary

judgment in their favor.” ECF No. 9. Parker opposed the motion, ECF No. 16, and Defendants

replied, ECF No. 17. Thereafter, Parker filed a Motion for Leave to File a Surreply along with a

proposed surreply and a request to hold this civil action in abeyance. ECF No. 21.

The Court has reviewed the pleadings and finds a hearing unnecessary. See Loc. R. 105.6

(D. Md. 2021). Parker’s Motion for Leave to File a Surreply shall be granted to the extent he asks

this Court to consider his proposed surreply; his request to hold the matter in abeyance shall be

' Citations refer to the pagination assigned by the Court’s Case Management and Electronic Case Files

(CM/ECF) system.

Defendants filed their dispositive motion and attached exhibits along with a Motion to Seal, ECF No.

12, which shall be granted.

denied. For the reasons that follow, Defendants’ dispositive motion, construed as one for summary

judgment, shall be GRANTED.

Background

A. Parker’s Allegations

Parker claims that while playing basketball at FC] Cumberland on March 23, 2021, he

injured his ankle. ECF No. | at 5. He immediately reported to the medical department, where he

was evaluated by a physician and given pain medication as well as a boot. Jd. An x-ray of his

ankle, taken on the following day, “came back with an abnormal assessment.” /d. Parker attached

an exhibit of the x-ray report finding, in part, that “‘[t]here is infiltration of the fat within the lower

leg and ankle anterior to the achilles tendon, concerning for potential hemorrhage and

inflammation.” ECF No. 1-2 at 10. Otherwise, there was no acute fracture, dislocation,

malalignment, or soft tissue swelling around the ankle. Jd.

On March 26, 2021, Parker felt “extreme pain in his left ankle” and requested assistance

from the medical department. ECF No. | at 5. Medical staff told him that he would be scheduled

for an appointment, but he was not given anything for pain relief. Jd.; see also ECF No. 1-2 at 12.

Subsequently, Parker began requesting an MRI. ECF No. | at 6.

On May 28, 2021, Parker was transported to UPMC Western Maryland for an ultrasound

on his left foot. Jd; ECF No. 1-2 at 14. At that time, the UPMC provider, Dr. Michael Arata,

opined that Parker probably had an “achilles tear without retraction,” which only an MRI could

confirm. /d. Both Defendants were notified of the MRI recommendation, and Gera reiterated to

Moubarek that a “MRI was needed and urgent to ascertain whether or not a tear was in his left

achilles.” ECF No. 1 at 6. Nonetheless, Defendants informed Parker that an MRI would not be

scheduled. Jd.

At the time of filing of the Complaint, Parker had not received the MRI, nor did medical

staff provide him with additional pain medication. I/d.

B. Defendant’s Motion

In support of their dispositive motion, Defendants have submitted Parker’s medical records

from FCI Cumberland during the time in question. The records reflect that on April 1, 2021, Gera

placed an “urgent” consultation request for Parker’s ultrasound with a target date of April 8, 2021.

ECF No. 9-3 at 2. At that time, Parker noted that the achilles “felt good as long as he wears the

supportive ortho boot provided.” Jd. Thus, Gera advised Parker to continue using the boot and to

return immediately if his condition worsened. /d. at 3.

On April 22, 2021, Parker returned for a follow up visit with Gera, at which time he noted

“improvement with . . . achilles area with increased motion but continued loss of strength with

[range of motion] movement.” ECF No. 9-4 at 2. Upon examination, Gera observed no swelling

and limited but functional range of motion. Jd. Gera reiterated that a request for a specialist visit

had been placed, and he advised Parker to continue wearing the boot. /d. at 2-3. During an

ophthalmologist appointment for Parker on May 19, 2021, Gera noted that Parker continued to

wear the boot. ECF No. 9-5 at 2.

Following Parker’s ultrasound at UPMC, he met with Gera on June 4, 2021, with

complaints of continued pain in his achilles. ECF No. 9-6 at 2. Believing that he needed surgery,

Parker demanded to see a surgeon. /d. In response, Gera requested an “urgent or emergent” MRI,

with a target date of June 18, 2021. Id.

On June 21, 2021, Parker attended an appointment for both his eye and left achilles tendon.

ECF No. 9-7 at 2. At that time, Parker informed Gera that he had elected to return to exercise and

did not have pain. /d. Upon evaluation, Gera noted that Parker had full range of motion with no

swelling, but slight muscle atrophy. /d. at 2. Thus, Gera discontinued the consultation requests

for an orthopedist and an MRI, and instead advised Parker to continue a slow return to normal

activity. Jd. at 3-4. Gera noted that there was “[n]o need for further eval[uation] of left achilles

due to no functional limitation and no observed evidence of a full tear.” Jd. at 4. The June 21,

2021 medical report was also signed by Dr. Moubarek. /d. at 5.

Standard of Review

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.” Jd Legal

conclusions or conclusory statements do not suffice. /d. A 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 Cnty., 407 F.3d 266, 268 (4th Cir. 2005). A self-

represented party’s complaint must be construed liberally. Erickson v. Pardus, 551 U.S. 89, 94

(2007). However, “liberal construction does not mean overlooking the pleading requirements

under the Federal Rules of Civil Procedure.” Bing v. Brivo Sys., LLC, 959 F.3d 605, 618 (4th Cir.

2020).

Defendants’ motion is styled as a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, in

the alternative, for summary judgment under Fed. R. Civ. P. 56. ECF No. 9. Motions styled in

this manner implicate the Court’s discretion under Rule 12(d) of the Federal Rules of Civil

Procedure. See Kensington Volunteer Fire Dep’t, Inc. v. Montgomery Cnty., 788 F. Supp.2d 431,

436-37 (D. Md. 2011). Conversion of a motion to dismiss to one for summary judgment under

Rule 12(d) is permissible where plaintiff has “actual notice” that the motion may be disposed of

as one for summary judgment. See Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260-

61 (4th Cir. 1998). When the movant expressly captions its motion “in the alternative” as one for

summary judgment and submits matters outside the pleadings for the Court’s consideration, the

parties are deemed to be on notice that conversion under Rule 12(d) may occur; the Court “does

not have an obligation to notify parties of the obvious.” Laughlin, 149 F.3d at 261.

Here, Parker was on notice that the Court could treat Defendants’ motion as one for

summary judgment and rule on that basis. Thus, the Court will review Parker’s claims under the

Rule 56(a) standard and will consider the exhibits filed in support of the dispositive motion.

Rule 56(a) provides that summary judgment should be granted “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). “A dispute is genuine if ‘a reasonable jury could return a

verdict for the nonmoving party.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir..

2013) (quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). ‘A fact

is material if it ‘might affect the outcome of the suit under the governing law.”” /d. (quoting Henry

v. Purnell, 652 F.3d 524, 548 (4th Cir. 2011)). Accordingly, “the mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis

in original). A court must view the evidence in the light most favorable to the nonmoving party,

Tolan v. Cotton, 572 U.S. 650, 656-57 (2014) (per curiam), and draw all reasonable inferences in

that party’s favor, Scott v. Harris, 550 U.S. 372, 378 (2007); see also Jacobs v. N.C. Admin. Off.

of the Cts., 780 F.3d 562, 568-69 (4th Cir. 2015). At the same time, the Court must “prevent

factually unsupported claims and defenses from proceeding to trial.” Bouchat v. Balt. Ravens

Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774,

778-79 (4th Cir. 1993))

Discussion

Parker brings this suit pursuant to Bivens, a judicially created remedy designed to vindicate

violations of constitutional rights committed by federal actors in their individual capacity. 403

U.S. at 395-97. To state a Bivens claim, a plaintiff must allege that “a federal agent acting under

color of his [federal] authority” violated his constitutional rights. Bivens, 403 U.S. at 389. Here,

Parker asserts that Defendants violated his Eighth Amendment rights when they deprived him of

proper medical care for his Achilles injury. ECF No. 1.

Defendants have filed a dispositive motion arguing that this action cannot proceed for lack

of a Bivens remedy, particularly in the wake of Egbert v. Boule, U.S. __, 142. S. Ct. 1793 (2022)

and Tate v. Harmon, 54 F.4th 839 (4th Cir. 2022). ECF No. 9-1 at 1-2. Alternatively, Defendants

assert that Parker’s claims are barred by both the doctrine of qualified immunity and statutory

immunity, and that Parker has not established deliberate indifference to a serious medical need.

Id. at 2,21. Assuming, without deciding, that Bivens can be extended to the claims presented by

Parker,’ Defendants are entitled to summary judgment because Parker has not shown deliberate

indifference on their part.

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).

To state an Eighth Amendment claim for denial of medical care, Plaintiff must demonstrate that

Defendants’ acts or omissions 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 proof that, objectively, the

prisoner plaintiff was suffering from a serious medical need and that, subjectively, the prison staff

were aware of the need for medical attention but failed to either provide it or ensure it was

The Supreme Court has repeatedly emphasized that any expansion of “the Bivens remedy” beyond the

parameters of Bivens, Davis v. Passman, 442 U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980),

is “a ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (quoting Ashcroft v.

Igbal, 556 U.S. 662, 675 (2009)); accord Egbert, 142 S. Ct. at 1803; Herndndez vy. Mesa, 140 S. Ct. 735,

743 (2020). A court presented with a proposed Bivens claim is required to (1) determine if the claim arises

in a “new context”; and (2) if it does, to conduct “a special factors analysis” before “allowing [the claim]

to proceed.” Abbasi, 137 S. Ct. at 1855, 1857-60, 1864-65. More recently, in Egbert, 142 S. Ct. at 1803,

the Court stated that the two-part test “often resolve[s] to a single question: Whether there is any reason to

think that Congress might be better equipped to create a damages remedy.”

available. See Farmer v. Brennan, 511 U.S. 825, 834-37 (1994); see also Heyer v. United States

Bureau of Prisons, 849 F.3d 202, 209-10 (4th Cir. 2017); King v. Rubenstein, 825 F.3d 206, 218

(4th Cir. 2016); v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). Objectively, the medical

condition at issue must be serious. See Hudson v. McMillian, 503 U.S. 1, 9 (1992) (there is no

expectation that prisoners will be provided with unqualified access to health care); Jackson v.

Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). “A ‘serious medical need’ is ‘one that has been

diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person

would easily recognize the necessity for a doctor’s attention.’” Heyer, 849 F.3d at 210 (quoting

Iko, 535 F.3d at 241); see also Scinto v. Stansberry, 841 F.3d 219, 228 (4th Cir. 2016) (failure to

provide diabetic inmate with insulin where physician acknowledged it was required is evidence of

objectively serious medical need).

After a serious medical need is established, a successful claim requires proof that the

defendant was subjectively reckless in treating or failing to treat the serious medical condition.

See Farmer, 511 U.S. at 842. “Actual knowledge or awareness on the part of the alleged inflicter

. becomes essential to proof of deliberate indifference ‘because prison officials who lacked

knowledge of a risk cannot be said to have inflicted punishment.’” Brice v. Va. Beach Corr. Ctr.,

58 F.3d 101, 105 (4th Cir. 1995) (quoting Farmer, 511 U.S. at 844). The subjective knowledge

requirement can be met through direct evidence of actual knowledge or through circumstantial

evidence tending to establish such knowledge, including evidence “that a prison official knew of

a substantial risk from the very fact that the risk was obvious.” Scinto, 841 F.3d at 226 (quoting

Farmer, 511 U.S. at 842).

“Deliberate indifference is a very high standard — a showing of mere negligence will not

meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999); see also Jackson, 775 F.3d at 178

(“[M]any acts or omissions that would constitute medical malpractice will not rise to the level of

deliberate indifference.”’). “{T]he Constitution is designed to deal with deprivations of rights, not

errors in judgment, even though such errors may have unfortunate consequences.” Grayson, 195

F.3d at 695-96; see also Jackson, 775 F.3d at 178 (describing the applicable standard as

“exacting”). A mere disagreement between an inmate and a physician over the appropriate level

of care does not establish an Eighth Amendment violation absent exceptional circumstances.

Scinto, 841 F.3d at 225. Rather, a prisoner-plaintiff must show that the medical provider failed to

make a sincere and reasonable effort to care for the inmate’s medical problems. See Startz v.

Cullen, 468 F.2d 560, 561 (2d Cir. 1972); Smith v. Mathis, PIM-08-3302, 2012 WL 253438, at *4

(D. Md. Jan. 26, 2012), aff'd, 475 F. App’x 860 (4th Cir. 2012). Further, the inmate’s right to

treatment is “limited to that which may be provided upon a reasonable cost and time basis and the

essential test is one of medical necessity and not simply that which may be considered merely

desirable.” United States v. Clawson, 650 F.3d 530, 538 (4th Cir. 2011) (citing Bowring v.

Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977)). Additionally, where the seriousness of the injury is

not apparent, a delay in treatment does not violate the Eighth Amendment. Brown v. Comm’r of

Cecil Cry. Jail, 501 F. Supp. 1124, 1126 (D. Md. 1980) (delay “does not violate the Eighth

Amendment where the seriousness of the injury is not apparent’’).

Here, even if Parker has shown that, objectively, he was suffering from a serious medical

need, he fails to satisfy the subjective prong as he has not shown that Defendants failed to provide

the necessary care. Immediately after he suffered the injury to his left achilles, FCI Cumberland

medical staff gave him pain medication and a support boot, and scheduled an x-ray. After the x-

ray came back with abnormal findings, Gera placed an urgent consultation request for an

ultrasound and continued follow up appointments. Then, after receiving results from the

ultrasound and upon Parker’s report of pain, Gera requested an urgent MRI. However, before the

MRI could take place, Parker informed Gera that he no longer had pain and that he started to

exercise. After finding that Parker had full range of motion, Gera discontinued the consultation

requests for an orthopedist and an MRI, and instead advised Parker to continue a slow return to

normal activity. Dr. Moubarek agreed with this treatment plan.

On this record, Parker has not shown deliberate indifference on the part of either Defendant.

From Parker’s medical records, it appears that Gera continued to monitor Parker’s achilles injury

and made necessary referrals until it was apparent that no further treatment was necessary outside

of FCI Cumberland. Therefore, Defendants are entitled to summary judgment on Parker’s claims.‘

Conclusion

Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment, construed

as amotion for summary judgment, is granted. Defendants’ Motion to Seal is granted, and Parker’s

Motion for Leave to File a Surreply is granted only to the extent he asks this Court to consider the

proposed surreply. Parker’s request to hold this case in abeyance is denied.

* In light of this ruling, the Court need not address Defendants’ remaining arguments.

A separate Order follows.

M27

ate AY GRIGGSBY

United States District Indge