United States District Court, D. Maryland
JAMES K. BREDAR, District Judge.
David Myron Suire ("Suire") brought this 42 U.S.C. § 1983 complaint while held as a pretrial detainee at the Wicomico County Detention Center ("WCDC"). The original complaint named the Wicomico County Detention Center ("WCDC"), Director Douglas C. Devenyns, and "correctional officers" as defendants. On April 14, 2014, defendants' court-construed motion for summary judgment was granted, the claims against the original defendants were dismissed, and plaintiff was permitted to amend his complaint to name ConMed Healthcare as a defendant. ECF Nos. 22 & 23. Suire was subsequently permitted to amend his complaint to name Dr. Lino Quilo, Physician's Assistant ("P.A.") Kevin Johnson,  and Nurse Michelle Autrey as defendants. ECF Nos. 24 & 28. Defendants filed a motion for summary judgment, which Suire has opposed. ECF Nos. 35 & 37. Suire has also filed motions for injunctive relief and to further amend his complaint. ECF Nos. 38 & 41.
Suire claims that while housed at WCDC in May of 2013, a peeling paint flake lodged in his eye while he was taking a shower. He was taken down to the medical department to have his eye flushed. Suire contends that he submitted a number of sick-call slips, his eye was again flushed, and he received eye drops. He complains that he has not received an outside appointment despite "a blur" in his right eye. ECF No. 1. In his amended complaint, he contends that defendants were not able to do anything for his eye "which caused it to get worse" and they "neglected" to provide him proper treatment which caused blindness in his right eye. ECF No. 24.
II. LEGAL STANDARD OF REVIEW
"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." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the "mere existence of a scintilla of evidence in support of the plaintiff's position" is insufficient to defeat a defendant's motion for summary judgment. Id. at 252. The facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the opposing party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial, Fed.R.Civ.P. 56(c)(1). Supporting and opposing affidavits are to be made on personal knowledge, contain such facts as would be admissible in evidence, and show affirmatively the competence of the affiant to testify to the matters stated in the affidavit. Fed.R.Civ.P. 56(c)(4). For reasons to follow, defendant's motion for summary judgment shall be granted and the complaint shall be dismissed. See Local Rule 105.6 (D. Md. 2014).
Defendants' counsel argues that Suire's eye complaints began on May 2, 2013, at which time he complained that paint chips got in his eye while he was showering. ECF No. 35, Ex. A at pg. 79. The sclera of his right eye appeared red and irritated and was irrigated by health care staff. Id. Defendants maintain that on May 6, 2013, Suire was seen by Dr. Quilo for his eye issue and he did not voice a complaint about his eye again until July 10, 2013, although he did complain about back, sinus, and stomach pain and the receipt of his medication in the interim two-month period. ECF No. 35, Ex. A at pgs. 72-78. In response to his complaint, on July 12, 2013, Suire was seen by a nurse, given a visual acuity test, and referred to P.A. Johnson. Suire was then referred for a consultation outside of WCDC when his eye complaints continued after a follow-up visit with P.A. Johnson on July 23, 2013. Id., Ex. A at pgs. 191-95. On August 13, 2014, he was taken to Retina Consultants of Delmarva in Salisbury, Maryland and seen by one of its physicians, Dr. Zaaira Ahmad. Id., Ex. A at pgs. 68, 172, & 176-178. Dr. Ahmad noted that there was no inflammation, no corneal scarring, and no retinal lesions to Suire's right eye. Id. She further observed that there were no foreign bodies detected in the eye. Dr. Ahmad recommended seeking a further workup with an Electroretinogram ("ERG")and, in any event, her seeing Suire in two weeks for a follow-up appointment. She further suggested placing Suire on an "artificial tears" treatment. Id.
On August 30, 2013, Suire was seen by Dr. Ahmad for a follow-up appointment. Id., Ex. A at pgs. 66, 179-180 & 188. Ahmad again noted that there was no clear etiology for Suire's complaints, as the exam and imaging were all normal. Ahmad observed that although an ERG could be considered, given Suire's normal test results, it was unclear if the ERG would "elucidate etiology." Ahmad asserted that there was no retinal pathology that would require monitoring or treatment and that there was no ocular cause for Suire's complaints. Id.
The health care providers at WCDC sought approval to take Suire to a facility to conduct an ERG. Id., Ex. A at pg. 181. Approval was given on September 6, 2013. Following the approval, however, the health care providers at WCDC attempted to find a location that would perform an ERG on Suire. The Wilmer Eye Clinic ("Wilmer") and University of Maryland Hospital were contacted and both facilities indicated that they did not perform the test on inmates. ECF No. 35, Ex. A at pg. 59. On October 17, 2013, Suire was given an x-ray as an alternative. Id. at pg. 195. The x-ray was normal. In addition, a CT was performed on October 24, 2013. Id., Ex. A at pg. 196. Three foreign particles "up to 1.5 mm" in length were found along the lateral aspect of Suire's right eye globe. Defendants claim that despite two prior exams with a retina specialist and an x-ray, these particles had not been previously detected. On October 30, 2013, Suire was seen by P.A. Johnson and informed the P.A. that he believed that one of the particles had come out. Id., Ex. A at pg. 57. Suire was directed to continue to flush out his eye and to use artificial tears to remove any additional particles from his eye. Defendants maintain that until Suire's transfer to the state correctional system in February of 2014, he was periodically seen by P. A. Johnson for irrigation of his eye and was provided eye drops and artificial tears to use as needed. Id., Ex. A at pgs. 36, 58, 47, 52, and 56. The record shows that Suire continued to complain that "it still feels like something [is] moving around in my eye." Id., Ex. A at pgs. 43, 48-49 & 54-55.
In his opposition response, Suire seemingly complains that defendants' constitutional liability is grounded in the fact that he has lost sight in his right eye "due to something that got into the eye." ECF No. 37. He claims that he was denied proper treatment and that defendants accepted the ophthalmologist's presumption that he was malingering. Suire further questions why he was unable to obtain treatment at Wilmer while confined at WCDC, but was seen at Wilmer when transferred to the State prison system. ECF No. 37 at Attachments.
Suire, who is now confined in the Maryland Department of Public Safety & Correctional Services ("DPSCS"), seeks a preliminary injunction to obtain medical treatment and protective eye wear to prevent further damage to his eyes. ECF No. 38. His request for emergency relief shall be denied. The purpose of injunctive relief is to "protect the status quo and to prevent irreparable harm during the pendency of a lawsuit, ultimately to preserve the court's ability to render a meaningful judgment on the merits." In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003). It may take the form of a preliminary injunction or a temporary restraining order. A preliminary injunction, unlike a temporary restraining order, cannot issue without notice to the non-movant. See Fed.R.Civ.P. 65(a)(1); U.S. Dep't of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n.1 (4th Cir. 2006) (comparing Fed.R.Civ.P. 65(a) with Fed.R.Civ.P. 65(b)).
Given Suire's claims and the materials presented to this court, he has failed to show that he will be subject to immediate harm if his relief request is not granted. He has not demonstrated (1) by a "clear showing" that he is "likely to succeed on the merits" at trial, (2) he is "likely to suffer irreparable harm in the absence of preliminary relief, " (3) "the balance of equities tips in his favor, " and (4) "an injunction is in the public interest, " as is required for injunctive relief. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20-24 (2008); see Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). The moving party must satisfy each of these requirements as articulated. Real Truth About Obama, Inc. v. Federal Election Comm'n, 575 F.3d 342, 347 (4th Cir. 2009), vacated on other grounds, 555 U.S.1089 (2010), reinstated in relevant part on remand, 607 F.3d 355 (4th Cir. 2010) (per curiam).
Due to his pre-trial detainee status, Suire's constitutional claims are analyzed under the Due Process Clause of the Fourteenth Amendment, rather than the Eighth Amendment. As a practical matter, however, courts do not distinguish between the Eighth and Fourteenth Amendments in the context of a pre-trial detainee's Section 1983 claim. See Hill v. Nicodemus, 979 F.2d 987, 990-92 (4th Cir. 1992). To establish a claim of this nature Suire must satisfy two requirements. First, he must satisfy the "objective" component by illustrating a serious medical need. See Hudson v. McMillian, 503 U.S. 1, 9 (1992); Estelle v. Gamble, 429 U.S. 97, 105 (1976); Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995); Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998). If Suire proves this first element, he must then prove the second subjective component of the Eighth Amendment standard by showing deliberate indifference on the part of defendants. See Wilson v. Seiter, 501 U.S. 294, 303 (1991) (holding that claims alleging inadequate medical care are subject to the "deliberate indifference" standard outlined in Estelle, 429 U.S. at 105-06). "[D]eliberate indifference entails something more than mere negligence [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Farmer v. Brennan, 511 U.S. 825, 835 (1994). Defendants "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and must also draw the inference." Id. at 837. "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 ...