United States District Court, D. Maryland
James K. Bredar United States District Judge
On June 25, 2015, the court received for filing Martin Walker’s (“Walker”) self-represented 42 U.S.C. § 1983 civil rights action. Walker seeks declaratory and injunctive relief and damages from medical personnel and prison administrators and staff at the Eastern Correctional Institution (“ECI”) and Division of Corrections Headquarters. Pending are Walker’s motions for summary judgment, temporary restraining order, and preliminary injunction. ECF Nos. 14-16 & 24-25. Defendants Getachew, Matera, Clem, Ford, Hearthway, and Wexford Health Sources, Inc.’s (“Wexford”) (collectively with Defendant Doughty, the “Medical Defendants”), have also filed a motion to dismiss or, in the alternative, motion for summary judgment and opposition to Walker’s motions (ECF No. 31), as well as a legal memorandum (ECF Nos. 31-1) (collectively, “motions”), and an exhibit. ECF No. 32-2. Walker has filed oppositions and the Medical Defendants filed a reply. ECF Nos. 46, 53 & 61.
Defendant Doughty has filed a motion to dismiss. ECF No. 49. Walker has filed an opposition and Doughty has filed a reply. ECF Nos. 68 & 71. In addition, Doughty has filed an opposition to Walker’s motion for summary judgment. ECF No. 81. Walker asks that judgment be entered on the pleadings to which Doughty has filed an opposition and Walker has filed a reply. ECF Nos. 72, 81 & 84.
Defendants Dryden and Green have filed a motion to dismiss or, in the alternative, motion for summary judgment, and Walker has filed an opposition. ECF Nos. 55 & 69. Finally, defendants Atkins, Gustus, Hanke, and Session (collectively with Defendants Dryden and Green, the “State Defendants”) have filed a motion to dismiss or, in the alternative, motion for summary judgment,  ECF No. 82, which Walker opposes, ECF No. 92.
The matter is ready for disposition; no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For reasons that follow, defendants’ motions (ECF No. 31, 55 & 82), construed as motions for summary judgment, ARE GRANTED, as is defendant Doughty’s motion to dismiss. Walker’s various motions shall be denied.
Walker’s self-represented complaint reads as a three-year running journal of his medical treatment or alleged lack thereof. He alleges that he has a medical history of diabetes, in remission since 2012, resulting in neuropathy in both feet, causing him pain, tingling, burning sensations, and partial loss of sensation in his feet. ECF No. 1 at p. 8. Walker claims that the diabetes is in remission through diet and exercise regimens, but the exercise (regular daily walking) has caused him to suffer blisters and lesions on the “planter regions” of his feet, most recently in May of 2015. He states that the lesion from May of 2015 is not fully cured, takes a lengthy period of time to heal, causes the formation of calluses, and results in painful walking.
Walker asserts that in February of 2012, he was admitted to the infirmary with a deep vein thrombosis (blood clot) in his right femoral area. He claims he discontinued his Coumadintherapy and was subsequently forced to go to the medical department on a daily basis over a six-month period to sign a release of responsibility and to see the prison psychiatrist due to his refusal to take the medication. ECF No. 1 at pp. 8-9. Two months later, in April of 2012, Walker alleges he saw Physician’s Assistant (“P.A.”) Ford for a large plantar blister on his left foot and was informed he would be provided “wound dressing material, ” suede insoles, and Keflex antibiotic to prevent infection. He asserts that these items were never given to him. Walker further complains that in August and September of 2012 he saw Dr. Matera for his neuropathy, blisters, bunions, and toenail fungus (mycosis), but was only prescribed a topical antifungal cream and compression stockings for his right leg edema. Id. at pp. 9-10. He complains that these less expensive treatments were ineffective.
In February of 2013, Walker states that he saw Nurse Practitioner Hearthway who noted the ulceration of his left foot and edema. He affirms that Hearthway ordered closed-toe stockings and moleskin pads to prevent new blisters and lesions. Walker maintains that Wexford denied the request and he was instead given a supply of Band-Aids. ECF No. 1 at p. 10. He contends that from May of 2013 through May of 2014, he made regular and frequent visits to the nurse’s clinic and was issued Band-Aids, medical tape, and gauze pads. Walker claims that his complaints about foot issues were communicated to nursing staff, but other treatment was never offered. Id. at p. 11.
It is also alleged that in June of 2014, a bloody discharge emanated from Walker’s nineteen-month old wound, resulting in an appointment to address the problem. He maintains when seen by P.A. Ford an x-ray was ordered as was Keflex antibiotic, which proved ineffective. Id. at p. 11. The x-ray revealed a dislocation of the second metatarsal, unrelated to the wound. Walker maintains that he was prescribed seven days of “Betadyne” foot soaks to treat the wound, but was only given soaks for four days, and advised that the orders had been changed by a “wound specialist.” He claims that he was told that the wound was a diabetic foot ulcer and was to be packed and afforded immediate emergency treatment. Walker seemingly claims that the nurse found the orders to be “incorrect” and no treatment was provided. Id.
On July 10, 2014, Walker alleges that he was seen by Dr. Matera and admitted to the infirmary for five days with a possible infection of his ulcer and edema in his foot. He was prescribed the oral antibiotic Bactrim and the intravenous antibiotic Timentin. Id. at p. 12. He maintains that in August of 2014 he resumed normal activity, including exercises, and when seen by Matera in August of 2014, the physician noted the improvement to his wound and indicated he would see Walker in two weeks. Walker claims the appointment did not occur, but Dr. Matera wrote up a note as if the consult had taken place. Walker also claims he was “forced” to perform a self-debridement of dead tissue around the wound. ECF No. 1 at p. 13.
Walker states that on September 25, 2014, he saw P.A. Oltman, who noted his blistering, bruising, and bunions and issued orders of Bactrim, tincture of benzoin,  and Lyrica. Walker claims that Dr. Clem changed the medication order to Neurontin and he was not provided any treatment options. Id. at p. 14. He alleges that his ulcer condition relapsed and he informed medical personnel of the same in October of 2014, but his requested care was denied. Id.
Walker asserts he was seen in November of 2014 by Dr. Druckman, who ordered no medication. He states that when seen at the nurse’s clinic ten days later he was provided antibiotics and his wound finally healed. Id. at p. 15. Walker maintains that although he was informed that an appointment with a wound specialist was scheduled, no consultation ever took place. He claims that when seen by Matera and Ford in December of 2014 and January of 2015, consults were requested, but no treatment was offered.
Walker states that Dr. Getachew ordered Clem to provide a podiatry consult and to order orthopedic shoes on January 29, 2015, and he was seen by Dr. Doughty at Bon Secours Hospital (“BSH”) on February 20, 2015. He complains, however, that the only treatment provided by Doughty was to cut Walker’s toe nails and to trim his calluses. Walker claims that over the next four months, while seen by medical personnel, he was not scheduled for an orthopedic shoe fitting and was not provided treatment for his foot issues. ECF No. 1 at pp. 16-18.
Walker also complains that his administrative remedy procedure (“ARP”) grievances regarding his foot care were denied without conducting a thorough review. Id. at pp. 13 & 17-20.
II. Standard of Review
With the exception of Dr. Doughty, defendants’ motions are styled as motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment under Rule 56. 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 (4th Cir. 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).
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.” 5 C 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, 167. The court is more than satisfied that given the volume of exhibits presented here, it has ample information with which to address the motions as filed for summary judgment.
Summary judgment is governed by Rule 56(a), which 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.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion: By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). In analyzing a summary judgment motion, the court should “view the evidence in the light most favorable to…the nonmovant, and draw all inferences in her favor without weighing the evidence or assessing the witnesses’ credibility.” Dennis v. Columbia Colleton Med. ...