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Wallace v. Corizon Medical Services

United States District Court, Fourth Circuit

December 18, 2013

THOMAS WALLACE, # 268813 Plaintiff,
v.
CORIZON MEDICAL SERVICES DEREJE TESFAYE CHRISTYSOMNER SHARON L. BAUCOM GREGFLURY CARLA BROWN Defendants.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

Pending is self-represented Thomas Wallace's ("Wallace") Complaint filed pursuant to 42 U.S.C. § 1983 (ECF No. 1). Defendants, Corizon Medical Services ("Corizon"), Medical Director Dereje Tesfaye, Christy Somner, Director of Clinical Services Sharon L. Baucom, and Greg Flury, [1] by their counsel, have filed Motions to Dismiss or, in the Alternative, Motions for Summary Judgment with affidavits and verified exhibits. ECF Nos. 31, 33. Wallace has filed Opposition responses. (ECF Nos. 41, 42, & 45). Oral hearing is not needed to resolve the issues. See Local Rule 106.5 (D. Md. 2011). For the reasons that follow, the claim against Defendant Brown IS DISMISSED and the remaining Defendants' Motions for Summary Judgment ARE GRANTED. Judgment will be entered in their favor.

BACKGROUND

In his Complaint, Wallace, an inmate at the North Branch Correctional Institution ("NBCI") in Cumberland, Maryland, claimed that in August of 2011, his medical diet was "suspended." Rather than afford him a substitute food regimen, however, he asserted that medical personnel told him to "stay away from the foods I'm allergic to, placing the burden on me to provide my own calorie needs even though this is the institutions job." (ECF No. 1 at p.

4). Wallace further complained that the Division of Correction has a duty to provide adequate meals and calories and to ensure that an inmate's medical diet needs are met. He accused Defendants of negligence and deliberate indifference and he seeks compensatory and punitive damages and the restoration of his medical diet.

I. Plaintiff's Allegations

This Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party. See Scott v. Harris, 550 U.S. 372, 378 (2007); Erickson v. Pardus, 551 U.S. 89, 94 (2007). That review liberally construes Plaintiff's pleadings in light of the fact that he is self-represented. See Gordon v. Leek, 574 F.2d 1147, 1151 (4th Cir. 1978).

Medical Diet

Wallace alleges that his diet was "suspended" and despite his grievances he was not provided the diet but was, in effect, told to self-control his food intake to avoid any foods to which he had an allergic reaction.

Director of Clinical Services Defendant Sharon Baucom responds that she does not prescribe medical diets to the inmate population, nor does she have supervisory authority over private medical contractors. (ECF No. 31, Ex. 2). Baucom affirms that in August of 2011 she did write a memorandum to Defendants Tesfaye and Somner to indefinitely hold the implementation of the section of the Diet Manual addressing food allergy challenge testing because it was outdated. She further advised that the allergy kit test had not been cleared or approved by the Food and Drug Administration ("FDA") and should not be used for diagnosis without confirmation by other medically established means. (ECF No. 31, Ex. 2). Baucom maintains that inmates claiming to have allergies to "tomatoes, beef, celery, fish, etc., " without a description of a life-threatening event or symptoms, should be instructed to simply avoid those foods. Further, Baucom asserts that receipt of requests for diets that fall outside of the eggs, peanut allergy, and articulate corn peas, vegetables, beef, all pork products, etc. should be facsimiled to the regional medical director with a copy to Corizon's statewide medical director for disposition, education and counseling. She denies that she has advanced the policy of putting the burden on the inmate to self-monitor and validate food allergy and therapeutic diets as Wallace alleges. ( Id. ).

Administrative Remedy Procedure

It is clear from the record that Wallace is no stranger to the Administrative Remedy Procedure ("ARP") grievance process. He filed a total of 17 ARPs between March 20, 2009, and March 1, 2013. (ECF No. 31, Ex. 3). The record shows that Wallace filed ARP-NBCI-3285-11 regarding the suspension of his medical diet. After investigation, corrections officials dismissed the grievance as without merit. ( Id., Ex. 3). An appeal was filed to the Inmate Grievance Office ("IGO") and was administratively closed, when Wallace failed to respond to an IGO request to provide additional documentation ( Id., Ex. 4). No appeal was filed to the Circuit Court for Allegany County.

Medical Defendants (Corizon, Tesfaye, Flury and Somner) argue that they cannot be found liable under a respondeat superior theory under § 1983. (ECF No. 33). They further argue that Wallace's needs were addressed and rely on his medical record to support their position. They maintain that Wallace had blood testing performed on August 5, 2011, which indicated a potential allergic reaction to peanuts and soybeans. (ECF No. 33, Ex. 1 at pgs. 7-8 & 11). The test was, however, performed using a kit not approved by the FDA and was not to be used for diagnosis without confirmation by other medically established means. (ECF No. 33, Ex. 1 at pgs. 7-8, 11, 14 & 16).

Physician's Assistant ("PA") Greg Flury reviewed the results and noted a reaction to peanuts and soybeans. In response to these test results, on August 17, 2011, Flury modified Wallace's diet plan to exclude peanuts and soybeans for one year. ( Id., Ex. 1 at pgs. 12-13 & 18). On August 31, 2013, the Baucom memorandum was sent to Corizon's medical administrators advising them that the aforementioned food allergy testing performed by BioReference Laboratories had not been approved by the FDA and recommending that when there ...


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