United States District Court, D. Maryland
DOROTHY F. GARDNER, et al., Plaintiffs.
UNITED STATES OF AMERICA, et al., Defendants.
K. BREDAR, District Judge.
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"); 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). Against the United States, Plaintiffs
pleaded a claim under the Federal Tort Claims Act
("FTCA"), 28 U.S.C. Â§Â§ 2671 et seq.
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
Factual Overview and Procedural History 
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 Â¶Â¶ 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. Â¶Â¶ 25-30.)
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). 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.)
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"),  and he set in a follow-up appointment
for October 2013. ( Id. at 4-5.) 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.)
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 Â¶ 53.) Plaintiffs allege
that the Decedent's work crew was supervised by Defendant
Officer Bennett ( id. Â¶ 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.) 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 Â¶ 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. Â¶ 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.)
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.) 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 Â¶
December 22, 2014, Plaintiffs submitted an administrative
tort claim to the BOP, which claim the BOP denied by
correspondence dated March 26, 2015. ( Id. Â¶ 5.) On
August 5, 2015, Plaintiffs filed a claim with the Maryland
Health Care Alternative Dispute Resolution Office. (
Id. Â¶ 7.) Pursuant to Md. Code Ann., Cts. & Jud.
Proc. Â§ 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
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.
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)). 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.
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
Conversion to Summary Judgment
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.
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").
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
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
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 Â¶Â¶ 37, 45,
62.) 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). 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).
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) 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
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). 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
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.