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Marshall v. Allaway

United States District Court, D. Maryland

August 3, 2016

DR. MATTHEW ALLAWAY, et al., Defendants.


          George L. Russell, III United States District Judge

         THIS 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 Marshall’s Motion.

         I. BACKGROUND

         Marshall 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.[1] In the Matter of Gregory Marshall, No. 02-C-14-188758 (Anne Arundel Cir.Ct. July 8, 2014)

         On 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).

         On 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 the procedure.

         On 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 necessary biopsies.

         On June 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).


         A. Standard of Review

         1. Motion to Dismiss

         A 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 Cir. 2013).

         Pro se 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)).

         2. Motion for ...

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