United States District Court, D. Maryland
L. Russell, III United States District Judge.
MATTER is before the Court on Defendants', Associate
Psychologist Laura Moulden, Chief Psychologist Bruce Liller,
and Counselor Norma Holwager (collectively
"Defendants"),  Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment (ECF No. 53). The
Motion is ripe for disposition. The Court, having reviewed
the Motion and supporting documents, finds no hearing
necessary pursuant to Local Rule 105.6 (D.Md 2014). For the
reasons outlined below, the Court will grant Defendants'
Gregory Marshall is an inmate currently incarcerated at the
North Branch Correctional Institution ("NBCI").
Defendants' are mental health personnel at NBCI. From
mid-November until early December 2014, Marshall alleges that
he suffered psychotic episodes and did not receive adequate
mental treatment from Defendants. (Compl. at 1-2, ECF No. 1).
Marshall maintains that he experienced visions of a dead
woman, dreams of death, and beliefs that people were plotting
to kill him and were listening to his thoughts. (Id.
at 2). On November 10, 2014, Marshall had a mental health
appointment and denied having suicidal or homicidal thoughts.
(ECF No. 8-1 at 000002). Marshall, however, alleges that on
November 19, 2014, he tried to kill his cellmate, Richard
Parker, by choking him to death. (Compl. at 3). Marshall
contends that voices told him to kill Parker because Parker
put a computer chip inside his head. (Id.). The day
before this alleged incident, on November 18, Marshall was
scheduled for a mental health appointment but did not attend.
(ECF No. 8-1 at 000002).
Supplemental Complaint, Marshall alleges that he had been
moved out of the cell he shared with Parker after the
incident, but was not provided a single cell, and that he
continued to hear voices telling him to kill others. (Supp.
Compl. 1-2, ECF No. 10). Marshall contends in his Second
Supplemental Complaint that he was not receiving the
significant mental health treatment that he needed, that he
was seen "maybe" every month by the mental health
staff for about fifteen minutes, and that the Celexa
medication he was receiving was not working. (Second Supp.
Compl. 1-2, ECF No. 12). He maintains that he suffers from
schizophrenia and that he has heard voices telling him to
kill others. (Id. at 2). Marshall also asserts that
on April 23, 2015, he told Defendants Holwager and Mull that
he had not received his Celexa medication in over two weeks
and Mull told him that his medication was stopped as
retaliation for this lawsuit. (Am. Compl. 1-2, ECF No. 19).
Liller contends that Marshall has not been diagnosed with a
psychotic disorder, nor does he demonstrate valid symptoms of
psychosis indicating the need for in-patient treatment. (ECF
No. 8-1 at 000001). Marshall's diagnoses of record are:
Major Depression, Generalized Anxiety Disorder, Depressive
Disorder, and Borderline Personality Disorder. (Id.
at 000002). With regard to Marshall's alleged attempt to
kill his cellmate, Liller contends that on a court trip,
Marshall made comments about hurting his cellmate, but later
denied he made those statements and willingly returned to his
cell with his cellmate. (Id. at 000001). His
cellmate also willingly accepted him back in the cell, and
there were no reports of incidents between the two.
(Id.). Liller contends that between November 1,
2014, and November 23, 2015, Marshall refused to attend
fourteen out of his twenty-two scheduled mental health
appointments. (Liller Decl. ¶ 5, ECF No. 53-3).
Liller asserts that Marshall's medication was
discontinued after several warnings that non-attendance would
result in discontinuation of medication. (Id. at
Marshall's allegation of retaliation, Defendant Holwager
contends that she has no recollection of the incident and
does not believe that she was present at the time because it
was highly unusual for both her and Defendant Mull to see an
inmate at the same time. (ECF No. 53, Ex. 3 at ¶ 7).
Marshall's medical records contain no record of any
interaction with any medical staff on April 23, 2015.
(Id. Ex. 4).
initiated this action on December 5, 2014, raising a 42
U.S.C. § 1983 (2012) claim for failure to provide
medical care. (ECF No. 1). He alleged that the prescribed
medication (Celexa) was ineffective to treat his
schizophrenia and that prison mental health workers refused
to provide him with mental health counseling. (Mot. to Am.
Compl., ECF No. 5). Marshall requested preliminary injunctive
relief ordering his transfer to Patuxent Institution's
mental health facility or to Clifton T. Perkins Hospital for
an examination to determine his competency and to receive
in-patient mental health treatment. (ECF No. 1).
23, 2015, this Court denied Marshall's request for
preliminary injunctive relief because he had not been
diagnosed with a psychotic disorder and was not exhibiting
valid symptoms of psychosis. (ECF No. 23). This Court ordered
Defendants to respond to two allegations in the Complaint:
(1) whether prison mental health personnel Mall, Moulden, and
Liller denied Marshall treatment from mid-November to early
December of 2014; and (2) whether mental health personnel
Holwager and Mull refused to treat him on April 23, 2015 in
retaliation for this lawsuit. (Id.). The remaining
Defendants were dismissed without requiring service of
process or a response. (Id.).
December 1, 2015, Defendants' filed a Motion to Dismiss
or, in the alternative, Motion for Summary Judgment. (ECF.
No. 53). Defendants argue this suit should be dismissed
against them because Marshall failed to exhaust
Standard of Review
defendants seek dismissal or, in the alternative, summary
judgment, the court may use its discretion, under Rule 12(d),
to determine whether to consider matters outside the
pleadings. See Kensington Volunteer Fire Dep't, Inc.
v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D.Md.
2011), aff'd sub nom., Kensington Volunteer
Fire Dep't, Inc. v. Montgomery Cty., 684 F.3d 462
(4th Cir. 2012). Pursuant to Rule 12(d), "[w]hen matters
outside the pleading are presented to and not excluded by the
court, the 12(b)(6) motion shall be treated as one for
summary judgment and ...