United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on Defendants’, Dr. Colin
Ottey M.D. and Dr. Mahboob Ashraf, M.D., Motion to Dismiss
or, in the Alternative, Motion for Summary Judgment (ECF No.
9) and Plaintiff Gregory Marshall’s Motion to Proceed
with Reasonable Time for Oral-Discovery Hearing and Motion
for Appointment of Counsel (ECF No. 15). The Motions are ripe
for disposition. Having reviewed the Motions and supporting
documents, the Court finds no hearing necessary pursuant to
Local Rule 105.6 (D.Md. 2016). For the reasons outlined
below, the Court will grant Defendants’ Motion and deny
is an inmate currently incarcerated at the Western
Correctional Institution (“WCI”). Defendants are
physicians employed by Wexford Health Sources, Inc.
(“Wexford”), a prison health care company under
contract with the Maryland Department of Public Safety and
Correctional Services (“DPSCS”). (ECF No. 9-5).
Marshall, who had been diagnosed and treated for prostate
cancer in the past, stated that on July 16, 2015, his
long-time treating physician opined that he should undergo a
prostate biopsy based on a test result showing an elevated
level of Prostate Specific Antigen (“PSA”) in his
blood. Marshall alleges that, rather than refer him to his
regular cancer specialist for biopsy, Defendants sent him to
Defendant Dr. Matthew Allaway on October 14, 2015. Allaway
refused to perform the biopsy. Marshall alleges Allaway
refused to perform the biopsy in retaliation for filing a
claim against him with the Health Care Alternative Dispute
Resolution Office of Maryland. In the Matter of Gregory
Marshall, No. 02-C-14-188758 (Anne Arundel Cir.Ct. July
December 16, 2015, Marshall initiated this action, raising a
42 U.S.C. § 1983 (2012) claim for failure to provide
medical care, seeking money damages of $20, 000.00 and
injunctive relief barring Defendants from treating him, and
ordering his care be provided by Dr. Ravi Krishnan, his sole
cancer treatment physician. (ECF No. 1). On February 11,
2016, this Court directed Defendants to respond to
Marshall’s allegation that he is being denied a
medically necessary biopsy. (ECF No. 3).
March 23, 2016, Marshall filed an Amended Complaint adding
Dr. Sharon Baucom and Dr. James K. Benjamin as Defendants.
(ECF No. 7). In his Amended Complaint, Marshall questions the
quality of a bone scan performed at Braddock Hospital by Dr.
James K. Benjamin, M.D. on July 31, 2015. The bone scan was
negative for cancer, but Marshall claims the scan is
inaccurate because there is no evidence that the scan was
conducted properly. Marshall states that he has an ongoing
legal and medical conflict of interest with the Allegany
County, Maryland Hospital Medical Staff and has requested
that Maucom, Ashraf, and Benjamin refer him to Krishnan at
Bon Secours Hospital in Baltimore, for another bone scan.
Marshall alleges Ottey and Ashraf have refused to reschedule
March 30, 2016, Defendants filed a Motion to Dismiss or, in
the alternative, Motion for Summary Judgment. (ECF No. 9).
Defendants argue Marshall is entitled to neither money
damages nor injunctive relief, and they are entitled to
summary judgment because Marshall has received
constitutionally adequate medical care, including all
3, 2016, Marshall filed a Motion requesting a continuance and
appointment of counsel to assist with discovery and selection
of his own medical experts to refute Defendants’
evidence. (ECF No. 15).
Standard of Review
Motion to Dismiss
complaint fails to state a claim if it does not contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” Fed.R.Civ.P.
8(a)(2), or does not state “a plausible claim for
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555). Though the plaintiff is
not required to forecast evidence to prove the elements of
the claim, the complaint must allege sufficient facts to
establish each element. Goss v. Bank of Am., N.A.,
917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012)) (internal
quotation marks omitted), aff’d sub nom.,
Goss v. Bank of Am., NA, 546 F.App’x 165 (4th
pleadings, however, are liberally construed and held to a
less stringent standard than pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976));
accord Brown v. N.C. Dep’t of Corr., 612 F.3d
720, 722 (4th Cir. 2010). In considering a Rule 12(b)(6)
motion, the court must construe the complaint in the light
most favorable to the plaintiff, read the complaint as a
whole, and take the facts asserted therein as true. See
Harrison v. Westinghouse Savannah River Co., 176 F.3d
776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)).
Motion for ...