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Wagner v. Warden

United States District Court, D. Maryland

March 19, 2015

JOHN ALEXANDER WAGNER, # 371-133 Plaintiff,
WARDEN, et al Defendants.



In multiple submissions, John Alexander Wagner, a self-represented prisoner incarcerated at North Branch Correctional Institution ("NBCI"), has sued a laundry list of about 50 defendants, [1] pursuant to 42 U.S.C. § 1983. In general, Wagner alleges inadequate medical care; denial of medical care; use of excessive force; unlawful limitations on his right to file grievances; unconstitutional conditions of confinement; and denial of due process at a disciplinary hearing. See ECF 1, 15, 16, 17, 19. Wagner's suit is supported by several affidavits. ECF 1-1; 13-1; 19-1.

In particular, Wagner has sued Wexford Health Sources, Inc. ("Wexford"); Colin Ottey, M.D.; Kristi Cortez, R.N.; Tiffany Bennett; Nurse Autumn Durst; Janice Gilmore; and William Beeman (collectively the "Medical Defendants").[2] Plaintiff has also sued the following defendants: Bobby Shearin, former Warden; John S. Beachy; Sgt. Jamie Farris; Dean W. Rounds, Jr.; Brandon R. Self; Leroy A. Conrad, II; Gary D. Maynard, former Secretary of DPSCS; Roderick Sowers, Director of DOC; Jesse Ballard, III; Keith Arnold, former Chief of Security; Cpl. Cinda Walker; Lt. William Gillium; Sgt. Janet Puffenbarger; Cpl. Justin Adams; Cpl. Gregory R. Shaffer; Cpl. Jesse L. Lambert, III; Sgt. Steven Roach; Sgt. Gregory Forney; Sgt. Jeremy J. Crites; Cpl. Matthew Engleson;[3] Sgt. Justin Gordon; Cpl. Jonathan Sharon; CO II Brian E. Fan[4]; Cpl. Troy Parsons; Sgt. Walter E. Iser, Sr.; Maj Thomas Mellot; Capt. Robert Friend; Maj. Carl Garland; Lt. George B. McCalpine; Chief of Security William S. Bohrer; Lt. Bradley Wilt; former DOC Commissioner J. Michael Stouffer; CO II Christopher Preston; R. Logston; Sgt. Brandon; Brandon S. Caple; Cpl. A. Preston; Cpl. Turner; and Maj. Presgraves (collectively, the State Defendants).

Counsel for the Medical Defendants have filed a motion to dismiss the complaint (ECF 44), to which Wagner has filed an opposition. ECF 49. The Medical Defendants have filed a reply. ECF 50. The attorneys for the State Defendants have filed a motion to dismiss or, in the alternative, for summary judgment. ECF 75. Wagner has not filed a response.[5]

The issues are ready for disposition. No hearing is necessary to resolve them. See Local Rule 105.6 (D. Md. 2014).[6]


A. Motion for Preliminary Injunctive Relief

On March 13, 2014, Wagner filed correspondence (ECF 1) and an affidavit (ECF 1-1) alleging, inter alia, that he was assaulted by correctional officers on December 13, 2013, while he was handcuffed. Wagner explained that, as a result of what occurred on December 13, 2013, he was afraid to "cuff up" and decided instead not to leave his cell. ECF 1-1 at 1.[8]

On December 30, 2013, C.O. John Beachy came to plaintiff's cell and asked plaintiff if he wanted to see Sgt. Caple. ECF 1-1 at 1. Although plaintiff said no, Caple came to plaintiff's cell and told him "get ready than [sic] we coming." Id. Wagner states he "had words" with C.O. Shawn Romesburg, who allegedly stated, "your little black ass really wanna die in that little box." Id. at 1-2. Wagner asserts that he placed a sign in his cell window and prepared himself as he had been warned. An extraction team responded to Wagner's cell. ECF 1-1 at 2. Wagner states he was assaulted on December 31, 2013, and suffered an asthma attack, when the extraction team shot pepper balls and administered pepper spray. ECF 1; 1-1. According to Wagner, he was temporarily blinded, bled profusely, and left in his cell with the door shut. Subsequently, he was photographed and taken for medical observation.

Wagner alleged that he was in immediate danger of serious harm. He also alleged that corrections staff members had given an unnamed member of a white supremacist group razers to harm him.

The court deemed Wagner's allegations sufficiently serious to construe his letter as a complaint and request for emergency injunctive relief. Therefore, on March 18, 2014, I directed the Maryland Attorney General to file an expedited response, limited to these allegations. ECF 2. The court also indicated that, as to Wagner's claim that correctional officers used excessive force against him and his claim of unlawful disciplinary segregation, Wagner was to submit a prisoner civil rights complaint under 42 U.S.C. § 1983, using a form and instructions that the Clerk provided to Wagner.

Counsel for the Maryland Attorney General submitted an expedited response that included the Declaration of NBCI Correctional Case Manager John White (ECF 6-1) and extensive prison records to dispute Wagner's allegations of imminent danger. ECF 6; ECF 6-1 at 3-43. White averred that, to the best of his knowledge and based upon his review of prison records, Wagner was not injured, nor did staff members solicit anyone to harm him. ECF 6-1 at 1 ¶ 7. The records included the "Serious Incident Report" prepared after the incident on December 31, 2013. ECF 6-1 at 3.

According to the submissions, on December 31, 2013, Romesburg ordered Wagner several times to come to the cell door and remove the sign covering from the cell window so that his well-being could be confirmed. The sign said: "I'm at peace with Lord, ready to die are you?" ECF 6-1 at 5; see ECF 75, Ex. 1 at 313. Wagner did not comply with the order, so a cell extraction team was assembled to check on Wagner. The team entered the cell where they found Wagner with his arms wrapped from his wrists to his elbows with sheets and a pillow tied to his trunk. Wagner threw the contents of a milk carton filled with a liquid substance that smelled strongly of feces at the officers, striking Officers Preston and Crites on their bodies and faces. Id. Officers Gordon, Romesburg, and Ritchie were struck in the arms and torso. Six rounds from a pepper ball launcher were fired, but they were ineffective against Wagner's makeshift body armor. Wagner moved to the toilet in an attempt to fill another container, and a burst of pepper spray was administered. After further refusal by Wagner to comply, he agreed to be handcuffed and was escorted to the medical room. Id.

Wagner was treated for pepper spray exposure and bleeding from a "busted lip" caused by the pepper ball launcher. Serious Incident Report, ECF 6-1 at 5; Medical Report, December 31, 2013, ECF 6-1 at 10. The injury is described as a "superficial injury to lower lip." ECF 6-1 at 10. Wagner refused to sign a written statement of the incident. Wagner also refused a decontamination shower and was placed on suicide precautions. The Internal Investigation Unit ("IID") was notified of the incident.

The following day, January 1, 2014, Wagner was found in his cell with his face in a small amount of blood and had difficulty keeping his eyes open. ECF 6-1 at 5, 12, 14. The medical report reads: "No source can be determined for blood found in cell." ECF 6-1 at 12. Wagner was transferred to the infirmary and for suicide observation. ECF 6-1 at 14. Prison records show Wagner received or was offered medical, dental, and mental health treatment, showers, and out-of-cell activity since the incident, and has remained in segregation confinement.

Based on the above, I concluded that Wagner had not shown the likelihood of imminent, irreparable harm and failed to satisfy the standard for preliminary injunctive relief set forth in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 19 (2008). Therefore, on May 9, 2014, I denied preliminary injunctive relief. ECF 9, 10. Wagner was granted twenty-eight days to indicate whether he wished to pursue his claims. Id.

B. Wagner's Complaint, as Supplemented

On May 14, 2015, Wagner indicated his intent to pursue claims by submitting three related supplementary filings on court provided forms for filing a civil rights complaint pursuant to 42 U.S.C. § 1983. See ECF 15, 16, 17. On July 18, 2014, Wagner submitted his Declaration and that of other inmates in support of these claims. ECF 19, 29.

In the complaint, as supplemented, Wagner raises claims of excessive force, unconstitutional conditions of confinement, violation of due process, denial of medical treatment, inadequate medical treatment, and denial of access to the administrative remedy process. The allegations arise from four incidents that occurred on the following dates: October 31 2013; December 13, 2013; December 31, 2013; and January 1, 2014. As redress, Wagner seeks damages of an unstated sum and asks this court to order: 1) his transfer to another region pending Interstate Corrections Compact[9] transfer and 2) an "outside" medical examination to address his "repetitive vomiting of blood" and pain medication. ECF 15 at 11; ECF 16 at 10; ECF 17 at 4, 9. Wagner's allegations are summarized below.

1. Incident on October 31, 2013

Wagner claims that because he was accused of inciting a riot, he was "brutally attacked" on October 31, 2013, by defendants Cpl. Brandon Self and Cpl. John Beachy. ECF 15; see also ECF 15-1 (Affidavit of Wagner). Wagner claims Beachy and Self "kicked, punched and kneed" him. ECF 15 at 8. Wagner's teeth were chipped, he was "slammed, " and his arm was bent by Sgt. Farris, Self, and Beachy. Id. Wagner also claims that his left shoulder was dislocated, his eye was cut, and his nose was "busted" by defendants Farris, Self, and Beachy. Id. In addition, Wagner asserts that defendants Cpl. Leroy Conrad, III; Cpl. Dean Rounds, Jr.; and Sgt. William Gillium attacked him. Gillium squeezed his larynx until Wagner lost consciousness. Id. at 8-9. Wagner was then dragged into a contingency cell where he was "repeatedly attacked" by Gillium, Farris, Beachy, Self, Conrad, and Rounds, Jr. Id. at 9. Wagner claims he remained handcuffed throughout the attack, with a leash connected to the cuffs, and spit up dark red blood. Conrad and Gillium pulled on the leash while Conrad applied a thumb lock grip to Wagner's right thumb. Id. Wagner believes his thumb was broken as a result. Gillium then "snatched the remaining cuff off without uncuffing it which tore skin from [Wagner's] wrist/hand also injuring [his] wrist and pinkie finger, i.e., severely spraining it requiring a brace and x-rays." Id.

According to Wagner, he was placed in a cold cell without a mattress, linen, toiletries, or running water. Feces and urine covered the floor. The cell window was locked from the outside and he received a food bag only on November 2 and 3, 2013. ECF 15 at 9. Wagner asserts that he continued to "vomit blood internally, " without treatment, and his clothing was taken. Id. He also claims that he was refused forms to file a grievance ("ARP"), and was denied sick call slips, and "no report according to information and belief was ever made." Id.

Wagner alleges that he was continuously denied treatment whenever a nurse walked around the tier. Id. On November 6, 2013, a nurse checked his vital signs but did not provide treatment. Id. Indeed, Wagner claims he was refused medical treatment until November 16, 2013. Id.

2. Incident on December 13, 2013

Wagner claims that on December 13, 2013, he was assaulted by defendants Cpl. Gregory Shaffer; Cpl. Adams Logston; Cpl. Jesse Lambert, III; and Sgt. Steven Roach. According to Wagner, the assault was in retaliation for his filing a grievance against Warden Shearin on December 12 and 13 of 2013. ECF 16 at 4. Wagner explains that he had a medical order for hand-cuffing in the front, which Shaffer refused to honor. Wagner was placed in handcuffs and his arm and wrist were "twisted, " he was forced to his knees, and his "head [was] slammed to the concrete." Id. Wagner asserts he was denied medical treatment for his head and his legs were skinned by the concrete. Id. at 4.

Wagner claims he requested ARP forms and defendant Roach refused to address the situation. Id. Wagner states that neither Roach nor Lambert assaulted him, but they did not do anything to prevent the assault and they did not file a report. According to Wagner, he "got a grievance slip from [his] neighbor and wrote the incident up, " but it was dismissed, without investigation, along with the ARPs he had filed against Shearin. Id. at 5.

Wagner complains that on December 13, 2013, Shearin restricted him to filing three grievances per month, and Commissioner Sowers (of the Division of Correction), approved the restriction. Wagner posits that this "took away the only little safety I had...." Id.

3. Incident on December 31, 2013

Wagner alleges that because he filed a grievance against Warden Shearin, the Warden ordered defendants Sgt. J. Gordon; Sgt. G. Forney; Sgt. Steven Roach; Cpl. Jermy [sic] Crites; Cpl. Engleson; Cpl. Christopher Preston, and others to unlawfully extract Wagner from his cell on December 31, 2013. ECF 1; ECF 16. He reiterates, in more detail, his allegations of excessive force, first presented in his initial filing. ECF 1; ECF 16 at 10-11. Wagner claims that he was extracted from his cell and assaulted with riot weapons. ECF 16, at 10. He alleges that he was shot with a pepper ball gun, rubber bullets, and OC gas[10] and left to bleed and choke for 12 to 16 minutes, during which time he had an asthma attack. Id. at 10. Wagner was lifted from the floor and dropped several times, which dislocated his shoulder. ECF 29 (Declaration of Wagner) at 2. He also claims he never received treatment. ECF 16 at 10.

Wagner acknowledges that there was a written sign in his cell, but states Officer Romesburg continuously taunted him by banging on his door, "irritatingly flicking his light" and "making threats toward" Wagner, such as "your little black ass really wanna die in that little box." ECF 13 at 4. Wagner states that he responded as follows: "I'm at peace with my Lord & ready to die are you." Id. He concedes his comment "may have been hasty in form" but denies that it required an extraction team. Id. In his view, the assembly of the extraction team was a ruse. Id. at 4-5. He also suggests that his use of makeshift body armor was "exaggerated, " but concedes that "there were milk and juice cartons lining [the] overhead of [his] cell door situated to come down should the door open." Id. at 5. And see ECF 13-1 (Declaration of Wagner).

Wagner was taken to the medical unit. He maintains that Nurse Cortez was "very unprofessional" and "joked and laughed" with defendants Crites and Gordon. ECF 16 at 11. He also claims that Gordon told Cortez that Wagner was not injured and told her what to write on the medical report, even though Wagner was "right in front of her" and was "bleeding profusely and clearly having a difficult time breathing." Id.

Wagner was next taken to "the cage area by property, " where he was subjected to "a minor assault consisting of arm twisting, shoving, strikes to the head, and face with an open hand, by Sgt. Gordon, and threats took place." Id. at 11-12; see ECF 29 at 2-3. Wagner was stripped to his underwear and taken to a contingency cell but was not permitted to decontaminate. ECF 16 at 12. The water in the cell "was ordered to be turned off" by Gordon. Id.

4. January 1, 2014 Incident

Wagner alleges a second cell extraction occurred on January 1, 2014. ECF 16 at 12. Wagner's allegations concerning an incident on January 1, 2014, are difficult to follow because at times they closely mirror his allegations concerning the cell extraction that occurred on December 31, 2014. He submitted, inter alia, the declarations of Ericky Bogues, dated January 30, 2014, and Matthew Oakes, also dated January 30, 2014. See ECF 19-Attachments. They suggest an incident occurred on January 1, 2014. The State Defendants maintain that a cell extraction incident did not occur on January 1, 2014 (ECF 74, n.3; see also ECF 75-2, Ex. 1 at 214 (stating there are no incidents reported involving Wagner on January 1, 2014). But, the State Defendants did not file any declarations specifically denying Wagner's allegations concerning an incident on January 1, 2014.

Wagner avers that he was threatened by Engleson, who told him "Get Ready For Us!" ECF 16 at 12. According to Wagner, defendants Gordon, Forney, Roach, Crites, Sharon, Preston, and Engleson stood outside his cell. Sgt. Gordon used a racially derogative term, id., and stated loudly a few times that Wagner was "unresponsive." Id. Wagner claims the officers were all "smiling sinisterly" while Wagner "yelled out loudly" and repeated: "I'm not unresponsive...." Id. at 13.

Gordon readied the extraction team while Wagner shouted: "I'm not doing anything, leave me alone PLEASE.'" Id. The cell door opened and Wagner was hit with a shield, "rendering [him] helpless and defenseless." Id. Wagner's legs were "snatched from under, " id., and his head and neck hit the heating vent. ECF 16 at 13-14. Sharon and Engleson sprayed Wagner in the face as Wagner was repeatedly kicked in the chest, stomach, head, and back. Id. at 14. Crites then stood over Wagner and "fired numerous shots to [his] body." Id. at 14. At the time, Wagner was clad only in boxer shorts. Id. Engleson said: "Look at the nigger move." Id. Wagner recalls that he was "curled in a somewhat fetal position" and Preston and Sharon kicked him "so hard [that] a pool of blood came out [of his] mouth and nose...." ECF 16 at 14. Wagner states his nose was "already busted" by Gordon. Id. Forney stated: "The bastard is fuckin puking blood'...." Id. Sharon punched Wagner "in the face and gut, " id., causing him to spit out more blood. Id. Engleson and Sharon bent and twisted his arms and cut off a wrist brace and deliberately bent his injured wrist. ECF 16 at 15. Wagner was given a prison jumper to wear, and Engelson and Sharon "dragg[ed]" him to the medical unit. Id. at 15. Wagner was bloody and his nose was still bleeding. Id. Three nurses "did nothing to stop this brutal attack" and two of them "laughed and joked" with Gordon, Forney, and Crites. Id. at 15. Wagner also claims that "Gordon told the nurses what to write...." Id.

Wagner was then was taken to a 2x2 cage in the property area where he was "stripped" by Gordon and held by Sharon and Engleson, who slammed his face into the cage. Id. at 16. Sharon also kicked Wagner's legs with his boots. Id. Wagner's picture was taken and he sarcastically commented "all this for a supposed unresponsive inmate huh.'" Id. at 16. Crites answered: "Nigger, I should kill you getting shit (feces) on me last night.'" Id. Gordon asked Wagner whether he thought he was "gone [sic] get away with last night?" Id. Wagner replied that Engelson had not been there the previous night, to which Engleson stated: "I just hate nigger's [sic] I'm racist if I had my way I'd kill all you niggers.'" Id.

Wagner states that, as he was being transferred to the special housing unit ("S.O.H.") at Western Correctional Institution ("WCI"), and "after being called as many coons and niggers I could take, " he stated to Sgt. Gordon "Fuck you KKK'...." ECF 16 at 16. Crites then "sucker punched" Wagner in the right eye. Id. His eye split open and swelled so that it was partially shut. Wagner's "toe was stomped on invidiously" and he felt a "very sharp pain and snap sound...." ECF 16 at 16. Wagner believes the toe was fractured, but he has not received x-rays or pain treatment. Id.

Plaintiff also avers that his back was injured and "it took more than 2 months of complaining before [he] was seen" for medical treatment. Id. He complains that he was told it was "only minor nerve damage and inflammation, " id. at 16-17, and was denied an MRI or an examination by a neurologist to "avoid cost and to cover up the drub [he] suffered in an attempt to minimize the assault or [his] injuries." ECF 16 at 17.

On January 2, 2014, after protesting and refusing to return to NBCI for "fear of [his] life, " someone from NBCI "deceived the officers at WCI and informed them" that the IU [11] would meet with Wagner upon his return to NBCI. Id. at 17. Upon Wagner's return to NBCI, Cpl. Toby Tasker; Brain [sic] Fan; Conrad, Caple, and unnamed others ordered Lt. Bradley Wilt to strip Wagner naked and place him in cell 1-C-20. Id. Wagner was "pretty much carried down the tier as [he] could not walk." Id. The cell had no mattress, linen, toilet paper, or running water. Id. Wagner claims he was denied food, ARP forms, sick call forms, an opportunity to speak with the "IU" or to make a statement, and was denied his mail. Id. He remained in this status from December 31, 2013, until January 30, 2014. Id.

Wagner also claims that Preston, Shaffer, and Gordon "play[ed] with [his] food." Id. Crowe Turner, Parsons, and others also played with his food and denied him meals. Id. Preston often asked Wagner "how does his pubic hairs taste, " ECF 16 at 18, and officers "would sling [Wagner's food] tray on the floor." Id. According to Wagner, Cpl. Francis threw Wagner's meal in urine and feces after another inmate flooded the bottom tier with it. In addition, he alleges that Engleson "tampered with" Wagner's food. Id. at 19.

Wagner asserts: "All the cells on the bottom tier was cleaned by blood spill except mine." ECF 16 at 18. Wagner had to have others "fish" him soap powder and water in a bag so he could try to clean up. Id. at 16.

Further, Wagner alleges that he was handcuffed behind his back (despite a medical order for front cuffing) when he was placed in the "2 x 2 cage." Id. at 18. He received a sleeveless smock to wear, which "came just pass [sic] the waist...." ECF 16 at 18. In addition, on January 30, 2014, he had his first shower since December 30, 2013. Id. And, when he exited the shower, he discovered that various ARPs, letters, and other materials, such as political literature, books, and newspapers, were missing. Id. [12]

Wagner claims he obtained grievance forms from other inmates on January 31, 2014, and "wrote up" the incident, but never received a confirmation copy. He alleges that inmates on the 1-C wing were denied access to the grievance process for three months. Id. at 19. He also submitted an ARP, forwarded a copy to the Commissioner, and received no response. Id. at 18.

According to Wagner, on February 18, 2014, and March 28, 2014, Crites threatened Wagner's life. ECF 16 at 19.[13] Further, he alleges that Engleson has twice solicited an Aryan Brotherhood member to harm him. Id. As noted, Wagner has submitted several declarations, one of which is from Raymond Hurt, a NBCI inmate. He attests: "[O]n a day not remembered during the month of February CO. Eadeson [sic] made a request for me to fuck the nigger in 20 up...." ECF 19 - attachment.[14] The State Defendants' response is silent as to these particular allegations.[15] And, Wagner claims Corporal Marchinke[16] and defendant Rounds took his medical pass on an unspecified date because he would "not shut up'" and no medical personnel addressed him although they were aware of Wagner's "serious need to be seen." ECF 17 at 6.

5. Due Process

Wagner complains that he received an infraction for violating Rule 101 for assaulting a staff member during the extraction. ECF 16 at 19. Wagner claims he was denied due process because he never received notice of the infraction charge, nor was he given a chance to represent himself or have witnesses testify on his behalf at the hearing. He claims the failure to provide notice was an attempt by defendants "to cover up their attack." Id.

6. Medical Treatment

As indicated above, Wagner alleges that he was injured on October 31, 2013, after he was subjected to excessive force, and he complains that he was refused medical treatment until November 16, 2013. He acknowledges that he was sent for x-rays on November 8, 2013. And, on November 16, 2013, Colin Ottey, M.D., saw him and prescribed muscle rub and a wrist/hand brace. ECF 17 at 4. Wagner states he vomited blood for weeks and remained in excruciating pain. ECF 17 at 5. He states that he believes his thumb is still broken. Id.

Further, Wagner claims that he was assaulted by correctional officers on December 13, 2013, and sustained a "busted head" and skinned knees and shins. Id. at 4. Wagner alleges that on December 31, 2013 and January 1, 2014, he suffered an eye injury that has caused him to lose his vision. Id. at 5-6. Wagner faults "three nurses" in the medical unit for doing nothing to stop the attack on him.[17] ECF 16 at 15. Gordon instructed Nurse Cortez not to document his injuries even though he was having a difficult time breathing and was bleeding profusely. Id. at 11, 15. Notably, Wagner does not allege Cortez followed his instructions. Wagner claims, however, that he was denied medical treatment after the alleged assault. ECF 16 at 4-5.

According to Wagner, he has minor nerve damage to his back that causes him to lose feeling and motion in his left leg. ECF 17 at 5. Wagner also states he continued to vomit blood for weeks and remained in excruciating pain. Id. In addition, he believes his thumb is still broken. Id. Wagner cannot walk without pain. Sleeping and bathroom use are unbearable due to the severity of his pain. Id; see also ECF 29 at 3.

Wagner states he was seen by an eye doctor and dentist concerning his injuries. ECF 17 at 6.[18] He was told glasses would improve his vision, but he has not received glasses. Nor has he been given any medication for the pain he suffers from his damaged eye and teeth.

On March 21, 2014, Wagner's leg "gave out" and he fell and struck his head on the side of his bunk. Nurse Autumn Durst refused to treat him. Durst and other nurses walked by him when they were on his tier. Id. at 6. He had a "large golf ball size knot" on his head that he showed to Cortez and Durst and they walked away from his cell. Id. Wagner claims he has filed sick call slips that were ignored. Id. at 7. He alleges that he vomited blood until April 3, 2014, and was continuously denied medical treatment from the nurse. ECF 15 at 9. He claims to have problems showering because he is unable to stand and properly wash due to his inability to bend, lift his legs, or to stand on his left leg. ECF 29 at 5.[19]

Additional facts are included below.


A. Standard of Review

The Medical Defendants have moved for dismissal of the claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF 44. A motion to dismiss pursuant to Rule 12(b)(6) tests the adequacy of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Such a motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law "to state a claim upon which relief can be granted." Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). Rule 8 provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule is to provide the defendant with "fair notice" of the claim and the "grounds" for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 n. 3 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Generally, a court's consideration of a Rule 12(b)(6) motion is confined to facts alleged in the operative pleading. A court "may not consider any documents that are outside of the complaint, or not expressly incorporated therein." Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013). But, a court may properly consider documents "attached or incorporated into the complaint, " as well as documents attached to the defendant's motion, "so long as they are integral to the complaint and authentic." Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); U.S. ex rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014); E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). To be "integral, " a document must be one "that by its very existence, and not the mere information it contains, gives rise to the legal rights asserted.'" Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611 (D. Md. 2011) (citation omitted) (emphasis in original); see also New Beckley Mining Corp. v. UMWA, 18 F.3d 1161, 1164 (4th Cir. 1994) (holding district court did not err in relying on document that plaintiff referred to in its complaint to justify cause of action).

A plaintiff need not include "detailed factual allegations" in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Johnson v. City of Shelby, ___ U.S. ___, 135 S.Ct. 346, 346 (2014) (per curiam). But, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). To satisfy the minimal requirements of Rule 8(a) (2), the complaint must set forth "enough factual matter (taken as true) to suggest" a cognizable cause of action, "even if... [the] actual proof of those facts is improbable and... recovery is very remote and unlikely." Twombly, 550 U.S. at 556. In other words, the complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Id. at 570; see Iqbal, 556 U.S. at 684; Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011).

In reviewing a Rule 12(b)(6) a motion, a court "must accept as true all of the factual allegations contained in the complaint, '" and must "draw all reasonable inferences [from those facts] in favor of the plaintiff.'" E.I. du Pont de Nemours & Co., 637 F.3d at 440 (citations omitted); see Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir.), cert. denied, ___ U.S. ___, 132 S.Ct. 402 (2011); Monroe v. City of Charlottesville, 579 F.3d 380, 385-86 (4th Cir. 2009), cert. denied, 559 U.S. 991 (2010). However, a complaint that provides no more than "labels and conclusions, " or "a formulaic recitation of the elements of a cause of action, " is insufficient. Twombly, 550 U.S. at 555. Moreover, the court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Monroe, 579 F.3d at 385-86.

A Rule 12(b)(6) motion will be granted if the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct." Iqbal, 556 U.S. at 679 (citation omitted). "A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer" that the plaintiff is entitled to the legal remedy sought. A Society Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1960 (2012). "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.'" Hartmann v. Calif. Dept. of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (citation omitted); accord Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Reg. Sys., Inc., 680 F.3d 1194, 1201-02 (10th Cir. 2011) ("Dismissal is appropriate if the law simply affords no relief.").

A motion asserting failure to state a claim typically "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses, " Edwards, 178 F.3d at 243 (quotation marks omitted), unless such a defense can be resolved on the basis of the facts alleged in the complaint. See Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.2007) ( en banc ). "This principle only applies, however, if all facts necessary to the affirmative defense clearly appear [ ] on the face of the complaint, '" or in other documents that are proper subjects of consideration under Rule 12(b)(6). Id. (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)) (emphasis in Goodman ).

B. Inadequate Medical Treatment

The Eighth Amendment proscribes "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).[20] "Scrutiny under the Eighth Amendment is not limited to those punishments authorized by statute and imposed by a criminal judgment." DeLonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003) (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)).

In order 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); 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.'" Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)).

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 either to provide it or ensure the needed care was available. Farmer v. Brennan, 511 U.S. 825, 837 (1994). As the Fourth Circuit recently explained in Lightsey, 775 F.3d at 178, deliberate indifference "is a higher standard for culpability than mere negligence or even civil recklessness, and as a consequence, many acts or omissions that would constitute medical malpractice will not rise to the level of deliberate indifference."

Therefore, "[t]o show an Eighth Amendment violation, it is not enough that an official should have known of a risk; he or she must have had actual subjective knowledge of both the inmate's serious medical condition and the excessive risk posed by the official's action or inaction." Lightsey, 775 F.3d at 178. The Fourth Circuit has characterized this as an "exacting standard...." Id. Moreover, in a case involving a claim of deliberate indifference to a serious medical need, the inmate must show a "significant injury." Danser v. Stansberry, 772 F.3d 340, 346 n.8 (4th Cir. 2014).

As noted above, 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). 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. 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 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. Virginia Beach Correctional Center, 58 F.3d 101, 105 (4th Cir. 1995) (quoting Farmer, 511 U.S. at 844). If the requisite subjective knowledge is established, an official may avoid liability "if [he] responded reasonably to the risk, even if the harm was not ultimately averted." Farmer, 511 U.S. at 844. Reasonableness of the actions taken must be judged in light of the risk the defendant actually knew at the time. Brown v. Harris, 240 F.3d 383, 390 (4th Cir. 2001) (citing Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998)) (focus must be on precautions actually taken in light of suicide risk, not those that could have been taken).

Of course, if a risk is obvious, a prison official "cannot hide behind an excuse that he was unaware of a risk, no matter how obvious." Brice, 58 F.3d at 105; see Makdessi v. Fields, ___ F.3d ___, No. 13-7606, slip op. at 14 (4th Cir. March 12, 2015). And, "[a] prison official's subjective actual knowledge [of a risk] can be proven through circumstantial evidence...." Makdessi, slip op. at 15.

Of import here, "[a] prisoner's disagreement with medical providers about the proper course of treatment does not establish an Eighth Amendment violation absent exceptional circumstances." Lopez v. Green, 2012 WL 1999868, at *2-3 (D. Md. June 4, 2012) (citing Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)); see Wester Jones, 554 F.2d 1285 (4th Cir. 1979). Moreover, "any negligence or malpractice on the part of... doctors in missing [a] diagnosis does not, by itself, support an inference of deliberate indifference." Johnson v. Quinones, 145 F.3d 164, 166 (4th Cir. 1998). Without evidence that a doctor linked presence of symptoms with a diagnosis of a serious medical condition, the subjective knowledge required for Eighth Amendment liability is not present. Id. at 169 (actions inconsistent with an effort to hide a serious medical condition refute presence of doctor's subjective knowledge).

And, prison officials are entitled to rely on medical judgments and the expertise of prison physicians and other medical providers concerning the course of treatment deemed necessary for prisoners. See Shakka v. Smith, 71 F.3d 162, 167 (4th Cir. 1995); see also Miltier v. Beorn, 896 F.2d 848, 854-55 (4th Cir. 1990) (stating that supervisory prison officials are entitled to rely on professional judgment of trained medical personnel and may be found to have been deliberately indifferent by intentionally interfering with a prisoner's medical treatment ordered by such personnel). Moreover, the right to medical 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." Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977).

The Medical Defendants seek dismissal of the claims against them, arguing that the facts alleged do not establish deliberate indifference to a serious medical need. They posit that Wagner's claims fail as a matter of law. Alternatively, they argue that they are entitled to qualified immunity because their alleged behavior does not violate clearly established statutory or constitutional rights. ECF 44 at 1.

The Medical Defendants correctly observe that Wagner fails to make any allegations against defendants Bennett, Gilmore, or Beeman. ECF 44 at 19. As such, these three defendants are entitled to dismissal from this case.

The remaining Medical Defendants cite the care Wagner has received, including muscle rub, x-rays, a wrist brace, and visits with an eye doctor and dentist, to refute his allegations that they acted with deliberate indifference to his serious medical needs. Id. at 11. They observe that Wagner does not allege that Nurse Cortez followed Sgt. Gordon's alleged directions concerning how to document Wagner's injuries on December 31, 2013. Further, they posit that Wagner has failed to allege any specific injury sustained as a result of the alleged failure to receive additional treatments. Id. at. 15.

The Medical Defendants seem to overlook that, in Wagner's Declaration accompanying his reply, ECF 49-1 at 4, Wagner avers that Gordon "not only told RN Cortez not to document my injuries, but he was dictating to her what to write. It's obvious to me that she did as told because I could clearly see the computer screen and saw that she in fact did not' document my injuries as described by me or as undoubtedly were apparent to her and any lay person." Id.

Accepting Wagner's various factual allegations as true, and drawing all reasonable inferences from those facts in favor of plaintiff, as this court must when considering a motion to dismiss, plaintiff alleges that: 1) Nurses Cortez and Durst failed to stop at his cell during their cell checks, despite his entreaties; 2) the nurses failed to inspect a "knot" on his forehead; 3) Cortez did not accurately document his injuries after the incident of December 31, 2013, at the behest of defendant Gordon; 4) Wagner received no medical attention after the incident of October 31, 2013, until November 6, 2013, when his vital signs were taken, and he did not receive a more complete medical evaluation until November 16, 2013, at which time he was sent for x-rays; 5) his numerous sick call slips went unanswered;[21] 6) he has sustained painful injuries to his teeth, finger, shoulder, and eye; and 7) he is unable to stand properly and cannot bend or lift his legs.

These allegations are sufficient to state a claim for an Eighth Amendment violation based on inadequate medical treatment. Given Wagner's allegations of fact, dismissal of the claims against medical providers Kristi Cortez, Autumn Durst, Colin Ottey, M.D., and Wexford for failure to state a claim pursuant to Rule 12(B)(6) is not appropriate.[22]

Accordingly, the Medical Defendants' Motion to Dismiss (ECF 44) will be granted in part and denied in part. The Motion to Dismiss (ECF 44) will be granted as to defendants Gilmore, Beeman, and Bennett, and denied as to defendants Cortez, Durst, Ottey, and Wexford.


A. Standard of Review

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. The motion is supported by many exhibits, containing hundreds of pages. A motion styled in this manner implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F.Supp.2d 431, 436-37 (D. Md. 2011). Ordinarily, a court "is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss." Bosiger v. U.S. Airways, 510 F.3d 442 450 (2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, "the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). 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 v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).[23]

A district judge has "complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." 5C WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed. 2004, 2011 Supp.). This discretion "should be exercised with great caution and attention to the parties' procedural rights." Id. at 149. In general, courts are guided by whether consideration of extraneous material "is likely to facilitate the disposition of the action, " and "whether discovery prior to the utilization of the summary judgment procedure" is necessary. Id. at 165-67.

Ordinarily, summary judgment is inappropriate "where the parties have not had an opportunity for reasonable discovery." E.I. du Pont de Nemours and Co. v. Kolon Industries, Inc., 637 F.3d 435, 448-49 (4th Cir. 2011). However, "the party opposing summary judgment cannot complain that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed for discovery.'" Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)). To raise adequately the issue that discovery is needed, the non-movant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, "for specified reasons, it cannot present facts essential to justify its opposition, " without needed discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit requirement of former Rule 56(f)).

"[T]to justify a denial of summary judgment on the grounds that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be essential to [the] opposition.'" Scott v. Nuvell Fin. Servs., LLC, 789 F.Supp.2d 637, 641 (D. Md. 2011) (alteration in original) (citation omitted). A non-moving party's Rule 56(d) request for additional discovery is properly denied "where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment." Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham, 437 F.Supp.2d 414, 420 (D. Md. 2006), aff'd, 266 F.Appx. 274 (4th Cir.), cert. denied, 555 U.S. 885 (2008).

If a non-moving party believes that further discovery is necessary before consideration of summary judgment, the party fails to file a Rule 56(d) affidavit at his peril, because "the failure to file an affidavit... is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.'" Harrods, 302 F.3d at 244 (citations omitted). But, the non-moving party's failure to file a Rule 56(d) affidavit cannot obligate a court to issue a summary judgment ruling that is obviously premature. Although the Fourth Circuit has placed "great weight'" on the Rule 56(d) affidavit, and has said that a mere "reference to Rule 56(f) [now Rule 56(d)] and the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for [an] affidavit, '" the appellate court has "not always insisted" on a Rule 56(d) affidavit. Id. (internal citations omitted). According to the Fourth Circuit, failure to file an affidavit may be excused "if the nonmoving party has adequately informed the district court that the motion is premature and that more discovery is necessary" and the "nonmoving party's objections before the district court served as the functional equivalent of an affidavit.'" Id. at 244-45 (internal citations omitted).

I am satisfied that it is appropriate to address the State Defendant's motion as one for summary judgment. Notably, both sides have addressed the issues and have submitted many exhibits. Moreover, to do so will facilitate resolution of the case.

Summary judgment is governed by Fed.R.Civ.P. 56(a). It provides, in part: "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." See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party must demonstrate that there are disputes of material fact so as to preclude the award of summary ...

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