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Gardner v. United States

United States District Court, D. Maryland

May 4, 2016

DOROTHY F. GARDNER, et al., Plaintiffs.
UNITED STATES OF AMERICA, et al., Defendants.


          JAMES K. BREDAR, District Judge.

         Dorothy F. Gardner, Christopher Gardner, and Brendan Gardner (collectively, "Plaintiffs") brought a wrongful-death action against the United States of America and certain medical and correctional personnel employed at the Federal Correctional Institution, Cumberland ("FCI Cumberland"), a Federal Bureau of Prisons ("BOP") facility located in Maryland. Plaintiffs' claims arise from the 2013 death of Stephen P. Gardner ("the Decedent"), deceased spouse of Dorothy and father of Christopher and Brendan. Plaintiffs named as Defendants Dr. Mohamed Moubarek ("Dr. Moubarek"); Dr. Michael Lin ("Dr. Lin"); Physician Assistant Tom Gera ("PA Gera");[1] Lisa Eckard, RN ("Nurse Eckard"); and Senior Officer Specialist Gregory Scott Bennett ("Officer Bennett") (collectively, "the Individual Defendants"), as well as Correctional Officer John Does 1-10 ("the John Doe Defendants"). Against the Individual and John Doe Defendants, Plaintiffs pleaded deliberate indifference to the Decedent's medical needs in violation of the Eighth Amendment, a theory made actionable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).[2] Against the United States, Plaintiffs pleaded a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq.

         Now pending before the Court is the Individual Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. (ECF No. 19.) The issues have been briefed (ECF Nos. 19-1, 43 & 48), and no hearing is required, see Local Rule 105.6 (D. Md. 2014). For the reasons explained below, the Court will convert the Individual Defendants' motion via Rule 12(d) of the Federal Rules of Civil Procedure; analyze the case pursuant to the summary-judgment framework of Rule 56; and GRANT the motion, entering judgment for the Individual Defendants on Plaintiffs' Eighth Amendment count.[3]

          I. Factual Overview and Procedural History [4]

         On December 11, 2008, the Decedent was sentenced in the United States District Court for the Southern District of California to a ninety-seven month term of incarceration after pleading guilty to charges of securities fraud, conspiracy, and obstruction of justice. (ECF No. 19-3 at 1-2.) Because of the Decedent's significant medical history, which included a diagnosis of coronary artery disease and two prior heart attacks, the BOP initially designated him to the Federal Medical Center, Devens ("FMC Devens"), a facility located in Massachusetts. (ECF No. 1 ¶¶ 23-24, 26.) In advance of the Decedent's arrival at FMC Devens, his primary-care physician submitted a letter to the prison medical staff detailing the Decedent's medical history, his required treatment, and his prescription regimen. ( Id. ¶¶ 25-30.)

         Upon arriving at FMC Devens in April 2009, the Decedent underwent a medical examination; he informed the examining physician that he had last taken nitroglycerin for chest pain in 2007. (ECF No. 20 at 1.) In November of that year, the Decedent requested a medical discharge and reassignment to the Federal Prison Camp, Devens ("FPC Devens") (ECF No. 21 at 1); in connection with this transfer request, the Decedent met with a cardiologist, who reported that from a "cardiac standpoint" the Decedent "appear[ed] to be doing well" and that he had "denied chest pain, dyspnea, orthopnea, PND, palpitations, dizziness or syncope." (ECF No. 22 at 1-2.) Following additional examinations and tests, the Decedent was reassigned to FPC Devens (ECF No. 19-10 at 1); thereafter, in April 2013, he was transferred to FCI Cumberland (ECF No. 19-12 at 1).[5] The transfer paperwork noted that the Decedent had been assigned a "regular duty work status with no medical restrictions." (ECF No. 19-11 at 1.)

         On May 1, 2013, Defendant Nurse Eckard, an FCI Cumberland employee, performed an initial health screen of the Decedent: she noted potential items for follow-up (including the Decedent's cardiac history), and she renewed his medications. (ECF No. 26 at 4-5.) On May 8, 2013, the Decedent had an appointment with Defendant Dr. Lin, who noted that the Decedent reported "good exercise tolerance" and no chest pain since 2007. (ECF No. 27 at 1.) Dr. Lin continued Nurse Eckard's prescription orders; he also scheduled the Decedent for several tests, including bloodwork and an electrocardiogram ("EKG"), [6] and he set in a follow-up appointment for October 2013. ( Id. at 4-5.)[7] Dr. Lin advised the Decedent to return to health services if his condition worsened, and he discharged the Decedent to an unrestricted housing unit. ( Id. at 21.)[8]

         Because the Decedent was not placed on any work restrictions at FCI Cumberland, he was assigned a standard job as a janitor/groundskeeper. (ECF No. 1 ¶ 53.) Plaintiffs allege that the Decedent's work crew was supervised by Defendant Officer Bennett ( id. ¶ 54), though Officer Bennett attested that he was merely a substitute supervisor during the week of the Decedent's death. (ECF No. 19-28 at 1.)[9] According to Plaintiffs, in July 2013 the Mid-Atlantic region "experienced an extraordinary mid-summer heat wave, with temperatures in the 90s and very humid conditions." (ECF No. 1 ¶ 59.) In spite of the heat and humidity, the Decedent's work crew continued to labor for "long periods of time outside, even in the hottest part of the day." ( Id. ¶ 60.) On July 16, 2013, in an apparent effort to escape the heat, the Decedent submitted a request for a reassignment to library duty; his request was approved the following day. (ECF No. 19-20 at 1-2.)

         On July 17, 2013, at approximately 6:00 p.m., Nurse Eckard was summoned to the Decedent's housing unit: he informed her that "he had chest pressure and had just been working out prior to [the] onset of chest pain." (ECF No. 32 at 1.)[10] Nurse Eckard called for an ambulance, but at approximately 6:04 p.m., the Decedent became unresponsive. ( Id. ) Paramedics transported him to a local hospital, where he was pronounced dead. ( Id. ) An autopsy later revealed that the Decedent had suffered a "massive heart attack." (ECF No. 1 ¶ 79.)

         On December 22, 2014, Plaintiffs submitted an administrative tort claim to the BOP, which claim the BOP denied by correspondence dated March 26, 2015. ( Id. ¶ 5.) On August 5, 2015, Plaintiffs filed a claim with the Maryland Health Care Alternative Dispute Resolution Office. ( Id. ¶ 7.) Pursuant to Md. Code Ann., Cts. & Jud. Proc. § 3-2A-06B, Plaintiffs also filed a waiver of arbitration ( see ECF No. 1-1); they subsequently filed a Complaint in this Court, charging the Individual Defendants with deliberate indifference in violation of the Eighth Amendment (Count I) and seeking recovery from the United States under the FTCA (Count II) (ECF No. 1). The United States answered Plaintiffs' Complaint (ECF No. 38), while the Individual Defendants moved to dismiss or, in the alternative, for summary judgment (ECF No. 19). Plaintiffs opposed the Individual Defendants' motion (ECF No. 43), and the Individual Defendants replied (ECF No. 48). The matter is ripe for decision.

          II. Deliberate Indifference

         The Eighth Amendment to the United States Constitution prohibits "cruel and unusual punishments, " such as those involving the "unnecessary and wanton infliction of pain, " Gregg v. Georgia, 428 U.S. 153, 173 (1976). In Estelle v. Gamble, the Supreme Court of the United States held that "deliberate indifference to serious medical needs of prisoners" constitutes the wanton infliction of pain, regardless whether the indifference is "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." 429 U.S. 97, 104-05 (1976) (footnotes omitted). In so holding, the Court cautioned that not every allegation of inadequate medical treatment states a claim under the Eighth Amendment. Id. at 105. Neither an "inadvertent failure to provide adequate medical care" nor "negligen[ce] in diagnosing or treating a medical condition" amounts to deliberate indifference. Id. at 105-06.

         Following Estelle, lower courts have crafted a framework for assessing Eighth Amendment deliberate-indifference claims. To prevail on such a claim, the plaintiff must prove two elements: "(1) that the deprivation of a basic human need, as an objective matter, was sufficiently serious; and (2) that, when viewed from a subjective perspective, prison officials acted with a sufficiently culpable state of mind." King v. United States, 536 F.Appx. 358, 360 (4th Cir. 2013) (emphasis added) (citing De'lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013)). As the United States Court of Appeals for the Fourth Circuit has emphasized, courts must "consider prison officials' culpable mental state because only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.'" Id. at 360 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). "To constitute deliberate indifference to a serious medical need, the treatment [a prisoner receives] must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.'" Id. at 361 (alteration in original) (quoting Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994)).[11] Moreover, a prison official is "deliberately indifferent to an inmate's serious medical needs only when he... subjectively knows of and disregards an excessive risk to inmate health or safety.'" Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (quoting Farmer, 511 U.S. at 837). In other words, the official must evince a mens rea equivalent to criminal recklessness-he must "both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.

         Most deliberate-indifference cases address the "denial of medical care to a prisoner rather than the provision of substandard care; no care, ' rather than bad care.'" Jones v. United States, Civ. No. 1:11cv115, 2012 WL 7681938, at *7 (N.D. W.Va. Dec. 18, 2012), report adopted, 2013 WL 955202 (N.D. W.Va. Mar. 12, 2013), aff'd, 531 F.Appx. 306 (4th Cir. 2013) (mem.). To be sure, a claim arising from substandard care may be cognizable-but only in unusual circumstances, such as where the treatment provided is "so cursory as to amount to no treatment at all, " King, 536 F.Appx. at 362 (quoting McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)).

          III. Standard of Review

          A. Conversion to Summary Judgment

         The Individual Defendants have moved to dismiss or, in the alternative, for summary judgment. Such a motion "implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure, " Sager v. Hous. Comm'n of Anne Arundel Cty., 855 F.Supp.2d 524, 542 (D. Md. 2012), which rule states that "[i]f, on a motion under Rule 12(b)(6)... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Styling a motion in the alternative (as the Individual Defendants have done here) is "sufficient to provide notice to all parties that the motion may be converted to one for summary judgment, " Strothers v. City of Laurel, 118 F.Supp. 3d 852, 860 (D. Md. 2015).

         "Ordinarily, summary judgment is inappropriate where the parties have not had an opportunity for reasonable discovery.'" Sager, 855 F.Supp.2d at 542 (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011)). Even so, "the party opposing summary judgment cannot complain that summary judgment was granted without discovery unless that party had 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)). The opponent typically must file an affidavit or declaration pursuant to Rule 56(d), proffering specific reasons why, without discovery, it cannot present facts essential to its opposition. Rule 56(d) affidavits may not demand discovery for discovery's sake; a Rule 56(d) request is properly denied "where the additional evidence sought... would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment." Strag v. Bd. of Trs., 55 F.3d 943, 954 (4th Cir. 1995); see also Ahmed v. Salvation Army, Civ. No. CCB 12-707, 2012 WL 6761596, at *10 (D. Md. Dec. 28, 2012) ("A Rule 56(d) affidavit cannot conclusorily state that additional discovery is required. It must specify why facts precluding summary judgment cannot be presented. This includes identifying the probable facts not available and what steps have been taken to obtain these facts.'" (citation omitted)), aff'd, 549 F.Appx. 196 (4th Cir. 2013) (per curiam); cf. Washington v. Maynard, Civ. No. GLR-13-3767, 2016 WL 865359, at *3 & n.3 (D. Md. Mar. 7, 2016) (converting motion under Rule 12(d) where plaintiff-prisoner failed to specify the information he sought to glean through proposed depositions); Cason v. Wexford Health Servs., Inc., Civ. No. CCB-14-482, 2014 WL 6391048, at *6 (D. Md. Nov. 14, 2014) (converting motion under Rule 12(d) where plaintiff-prisoner had "not pointed to any additional evidence that would be helpful to the disposition of th[e] case").

         In this case, Plaintiffs' counsel attached a Rule 56(d) declaration to Plaintiffs' opposition brief, outlining Plaintiffs' proposed discovery. ( See ECF No. 43-1.) As a preliminary matter, the Court notes that much of the proposed discovery seems only tangentially related to the key questions before the Court- i.e., whether Plaintiffs have pleaded a plausible case for deliberate indifference, and whether (with discovery) Plaintiffs could reasonably be expected to generate at least a triable question of fact as to any such indifference. Plaintiffs propose to probe the circumstances of July 17, 2013, including the hours the Decedent worked, the number of breaks he took, and the nature of his exercise that evening, as well as any investigatory steps officials undertook in response to the Decedent's death. ( Id. at 4-5.) Some of this proposed discovery might yield evidence relevant to Plaintiffs' FTCA claim, but none of it seems especially germane to the Individual Defendants' Eighth Amendment liability.[12]

         That said, Plaintiffs' counsel does identify several lines of inquiry that could theoretically lead to relevant evidence, such as (1) the Individual Defendants' knowledge of the Decedent's prior medical history; (2) the Individual Defendants' familiarity with cardiac care and risk prevention; and (3) the BOP's protocols governing cardiac health management. Plainly, if a Defendant admitted on deposition that he or she knew the Decedent required stress testing or light duty and, throwing caution to the wind, acted in blatant disregard of that knowledge, Plaintiffs' deliberate-indifference theory might have some legs.

         The problem with this proposed discovery is that it is rooted in nothing more than speculation. There are no concrete factual allegations, and there is nothing in the current record, that would tend to suggest (1) that any Defendant was "aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], " and (2) that such Defendant "dr[ew] the inference, " Farmer, 511 U.S. at 837. In the Complaint itself, once the Court pares back legal terms of art and unadorned conclusions about the Individual Defendants' knowledge, the Court is left with few facts from which to infer the source and substance of such purported knowledge. Plaintiffs allege that Nurse Eckard and Dr. Lin reviewed the Decedent's medical history and that Dr. Moubarek cosigned Dr. Lin's report; Plaintiffs also opine that "reasonably trained medical practitioners" know that persons with significant cardiac histories face elevated risks in extreme weather conditions and that the medications in the Decedent's regimen are "known" to cause persons who are taking them to experience exaggerated symptoms when exposed to extreme heat. (ECF No. 1 ¶¶ 37, 45, 62.)[13] But these allegations have nothing whatever to do with the actual knowledge of the Individual Defendants here; rather, they correspond to a negligence standard ( i.e., what medical practitioners reasonably should know).[14] For that matter, Plaintiffs' allegations concerning the Individual Defendants' knowledge are shakier than allegations in other cases in which the Fourth Circuit has concluded- at the pleading stage -that plaintiffs have failed to state a claim for deliberate indifference. See, e.g., Jackson, 775 F.3d at 178 (affirming dismissal of claim where physician misdiagnosed plaintiff with heart arrhythmia, even though plaintiff produced or offered to produce records showing that a cardiologist had previously diagnosed him with congestive heart failure); King, 536 F.Appx. at 360 (affirming dismissal of claim where dentist mistakenly drilled healthy tooth, even though plaintiff tried to inform dentist and staff that he was only present for an examination).[15]

         Although in the ordinary case a district court should exercise caution in ruling on summary judgment in the face of a Rule 56(d) request, courts have repeatedly held that the rule does not authorize "fishing expedition[s]." Agelli v. Sebelius, Civ. No. DKC 13-497, 2014 WL 347630, at *9 (D. Md. Jan. 30, 2014) (alteration in original) (quoting Morrow v. Farrell, 187 F.Supp.2d 548, 551 (D. Md. 2002), aff'd, 50 F.Appx. 179 (4th Cir. 2002) (per curiam)); accord Fierce v. Burwell, 101 F.Supp. 3d 543, 554 (D. Md. 2015); Alston v. United Collections Bureau, Inc., Civ. No. DKC 13-0913, 2014 WL 1660273, at *2 (D. Md. Apr. 23, 2014), aff'd, 585 F.Appx. 196 (4th Cir. 2014) (mem.); cf. Wright v. Eastman Kodak Co., 550 F.Supp.2d 371, 382 (W.D.N.Y. 2008) ("While a Rule 56(f) [now Rule 56(d)[16] discovery request may be granted to allow a plaintiff to fill material evidentiary gaps, ' it may not be premised solely on speculation as to evidence which might be discovered[.]" (citation omitted)), aff'd, 328 F.Appx. 738 (2d. Cir. 2009). In Agelli, Judge Chasanow of this District denied a discovery request by a plaintiff bringing an age-discrimination claim. In so doing, Judge Chasanow noted that, while the plaintiff had submitted a detailed Rule 56(d) affidavit, the crux of the plaintiff's argument was that she was entitled to discovery regarding aspects of the defendant-employer's selection decisions and hiring practices- i.e., she "hope[d] to locate some evidence probative of pretext and believe[d] that she should be allowed to find out if [she] ha[d] a claim, rather than that [she] ha[d] a claim for which [she] need[e]d... discovery.'" 2014 WL 347630, at *10 (alterations added and in original) (quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994)). In this case, it strikes the Court that Plaintiffs have neither proof nor a particularly good reason to believe that the Individual Defendants consciously disregarded an excessive risk to the Decedent's health; rather, Plaintiffs hope that depositions or similar fact discovery might yield evidence of such mens rea. The Court is disinclined to license a fishing exhibition-particularly where, as here, the Individual Defendants have adduced evidence that seems flatly at odds with the notion that they were deliberately indifferent to the Decedent's wellbeing. Cf. Mullins v. United States, Civ. No. 1:06cv105, 2007 WL 2471117, at *6 (N.D. W.Va. Aug. 30, 2007) (declining plaintiff's discovery request where medical records spoke for themselves and "conclusively establish[ed] that [plaintiff's] health care providers... ha[d] not been deliberately indifferent to any of his medical needs"), aff'd, 262 F.Appx. 523 (4th Cir. 2008) (per curiam).

         An additional factor counsels in favor of Rule 12(d) conversion at this juncture. Although the Individual Defendants primarily argue, on the merits, that Plaintiffs cannot show Defendants acted with deliberate indifference, they also contend that they are entitled to qualified immunity. The doctrine of qualified immunity "protects government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person." Danser v. Stansberry, 772 F.3d 340, 345 (4th Cir. 2014).[17] The Supreme Court has repeatedly "stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991). This is so because qualified immunity is an " immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009) ("The basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation, including avoidance of disruptive discovery.'" (citation omitted)). Thus, when a plaintiff files a Rule 56(d) request in opposition to a dispositive motion by a defendant who has asserted qualified immunity, the plaintiff's burden is "somewhat elevated... because officials have a right, not merely to avoid standing trial, but also to avoid the burdens of such pretrial matters as discovery.'" Gomez v. Martin, 593 F.Appx. 756, 760 (10th Cir. 2014) (citation omitted); see also Foster v. City of Asheville, No. 1:09-cv-442-RJC, 2011 WL 1234097, at *3 (W.D. N.C. Mar. 30, 2011) ("The burden on the party seeking to invoke Rule 56(d) is especially heavy in cases... which involve[] qualified immunity. Although affidavits submitted under Rule 56(d) are generally entitled to liberal treatment, this standard does not apply in the qualified immunity context because discovery should not be allowed' until the threshold immunity question is resolved.'" (citation omitted)); cf. Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1280 (11th Cir. 1998) ("In qualified immunity cases, the Rule 56(f) balancing is done with a thumb on the side of the scale weighing against discovery.").

         Because Plaintiffs' Rule 56(d) request-insofar as it relates to their Eighth Amendment claims-is grounded in speculation; because discovery relating to the Individual Defendants' subjective intent would amount to a fishing expedition; and because the Court is obligated to address assertions of qualified immunity at the earliest feasible stage, the Court will exercise its discretion under Rule 12(d) and review the Individual Defendants' motion pursuant to the summary-judgment standard of Rule 56.

          B. Summary ...

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