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Marshall v. Ottey

United States District Court, D. Maryland

April 29, 2016

GREGORY MARSHALL, Plaintiff,
v.
DR. COLIN OTTEY, MD, et al., Defendants.

MEMORANDUM OPINION

GEORGE L. RUSSELL, III, District Judge.

THIS MATTER is before the Court on Defendant Colin Ottey's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 8) and Defendant Assistant Warden Richard S. Roderick's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 13). Also pending is Plaintiff Gregory Marshall's Motion for Finding of Incompetency and Appointment of Counsel. (ECF No. 10). The Motions are ripe for disposition. Having considered the Motions and supporting documents, the Court finds no hearing necessary. See Local Rule 105.6 (D.Md. 2014). For the reasons stated below, the Court will grant Defendants' Motions and deny Marshall's Motion.[1]

I. BACKGROUND

Marshall, a Maryland Division of Correction ("DOC") prisoner housed at North Branch Correctional Institution ("NBCI"), alleges his medical need for properly fitting corrective contact lenses has been ignored, leading to visual impairment that has resulted in endangerment from his cell mate. Marshall alleges Defendant Michael Summerfield, MD, an ophthalmologist under contract with DOC to provide eye care to prisoners, and prison physician Ottey have ignored his complaint concerning ill-fitting contact lenses. On October 2, 2014, Marshall was seen at the University of Maryland Medical System ("UMMS") to be fitted for contact lenses. (ECF No. 1-1). The fitting physician noted that Marshall's vision was 20/60 in the right eye and 20/70 while wearing the contacts. (Id.). While there, the physician recommended him for single cell housing due to poor vision when without his contacts. (Id.).

On November 13, 2014, Marshall had an eye examination for his tinted contact. (ECF 8-1). On January 21, 2015, Marshall was seen at UMMS for assessment as to suitability for rigid contact lenses. (Id.). He stated one of his contact lenses had been removed a month earlier by a prison doctor. At his January 24, 2015 chronic care visit, Marshall stated his contacts had stopped working. (Id.). The physician noted the ophthalmologist's request to see Marshall in two months and filed a consultation request for the visit. (Id.).

On February 20, 2015, Marshall complained of loss of vision. (Id.). On February 24, 2015, Marshall complained to a nurse practitioner that he needed contact lenses. (Id.). Two days later, on February 26, 2015, the consultation request for Marshall to return to UMMS ophthalmology was approved. (Id.). On March 6, 2015, Marshall complained to the nurse practitioner that UMMS had confiscated his left contact lens and that Ottey had confiscated the right lens. (Id.). The nurse practitioner noted that Marshall had lost his lenses. (Id.). On March 16, 2015, Marshall asked the nurse practitioner to provide him a cane due to his poor vision. (Id.). He denied losing his lenses, again stating a UMMS physician took one lens and Ottey took the other. (Id.).

On April 30, 2015, a consult request was submitted to ophthalmology to evaluate Marshall's suitability for rigid gas permeable ("RGP") contact lenses. (Id.). On May 12, 2015, medications for the lenses were ordered. (Id.). On May 13, 2015, Marshall was seen by Summerfield. (Id.). Marshall lost the right contact lens. (Id.). Marshall reported difficulty in obtaining lens cleaner, and requested a single cell due to his vision, which was 20/100 without contact lenses. (Id.). Summerfield deferred to custody on the issue of Marshall's housing. (Id.). The next day, on May 14, 2015, Summerfield submitted a non-formulary request for lens cleaner. (Id.).

On June 10, 2015, Marshall received an RGP lens, which Summerfield noted fit well for the right eye. (Id.). Marshall did not report improved visual acuity and Summerfield recommended having optometry check the prescription. (Id.). Marshall again asked for a single cell. (Id.). On August 30, 2015, a consultation was submitted for him to be refitted with RGP contact lenses. (Id.). On September 24, 2015, six weeks after he filed this lawsuit, Marshall complained the right lens was not working correctly, and was referred to optometry. (Id.).

On August 3, 2015, Marshall filed a Complaint pursuant to 42 U.S.C. ยง 1983 (2012), claiming, inter alia, civil rights violations under the Eighth Amendment and denial of equal protection based on racial discrimination.[2] (ECF No. 1). On November 4, 2015, Ottey filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. (ECF No. 8). On November 9, 2015, Marshall filed a Motion requesting the Court to find him incompetent and appoint him counsel in this matter. (ECF No. 10). On December 2, 2015, Roderick filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment.[3] (ECF No. 13). On December 18, 2015, Marshall filed an Opposition to the Motions. (ECF No. 15).

II. DISCUSSION

A. Motion for Finding of Incompetency and Appointment of Counsel

Marshall claims he is mentally incompetent and requires appointment of counsel. (ECF No. 10). Federal Rule of Civil Procedure 17(c)(2) states:

A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem-or issue another appropriate order-to protect a minor or incompetent person who is unrepresented in an action.

The United States Court of Appeals for the Fourth Circuit has observed that "[t]he practical problem presented by a case in which a presumably competent party might be thought to be acting oddly, or foolishly, or self-destructively in prosecuting or defending a civil lawsuit, with or without counsel, is a real one, " and "[p]arties to litigation behave in a great variety of ways that might be thought to suggest some degree of mental instability." Hudnall v. Sellner, 800 F.2d 377, 385 (4th Cir. 1986). Rule 17(c)(2) recognizes the existence of some forms of mental deficiency which may affect a person's practical ability to manage his or her own affairs that goes beyond "mere foolishness or improvidence, garden-variety or even egregious mendacity, or even various forms of the more common personality disorders." Id . The Rule allows this Court to appoint a guardian ad litem, but it does not compel it to ...


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