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Marshall v. Mall

United States District Court, D. Maryland

June 22, 2016

GREGORY MARSHALL, Plaintiff,
v.
MALL, et al., Defendants.

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge.

         THIS MATTER is before the Court on Defendants', Associate Psychologist Laura Moulden, Chief Psychologist Bruce Liller, and Counselor Norma Holwager (collectively "Defendants"), [1] 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' Motion.

         I. BACKGROUND

         Plaintiff 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).

         In his 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).

         Defendant 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.[2] (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 ¶ 6).

         As for 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).

         A. Procedural History

         Marshall 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).

         On June 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.).

         On 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 administrative remedies.

         II. DISCUSSION

         A. Standard of Review

         When 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 ...


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