United States District Court, D. Maryland
K. Bredar United States District Judge.
Jason Gregory Mitchell is an inmate in North Branch
Correctional Institute in Cumberland, Maryland. (Am. Compl.
¶ 1, ECF No. 57.) Originally acting pro se,
Mitchell filed a complaint against Janette Clark, CRNP, and
Colin Ottey, M.D., alleging he began suffering pain in his
left arm and that the left side of his body was numb on May
22, 2014. (Compl., ECF No. 1.) He provided detailed
allegations as to the course of medical care he received from
the Defendants over several months, and he alleged his
condition worsened and that the many visits he made to them
resulted in no pain relief. (Id.) He complained that
he had considerable difficulty in walking, but was denied
feed-in status because “they think its [sic]
best for me to walk to the kitchen to eat.”
(Id.) Because it was painful for him to walk,
Mitchell said he skipped going to some meals. (Id.)
One doctor thought he had a stroke. (Id.) He alleged
he put in numerous requests for sick call, but “the
medical personnel just will not do anything to help with
[his] medical condition.” (Id.)
filed a motion to dismiss (ECF No. 7), which was denied (ECF
No. 13). The Court appointed counsel for Mitchell (ECF Nos.
19, 20). (Over the course of several months, eight separate
pro bono appointments were made and stricken before
appointed counsel filed a notice of appearance. See
ECF Nos. 20 - 47.) Shortly afterward, the case was reassigned
to the undersigned. In response to the parties' status
report (ECF No. 49), the Court entered a scheduling order
(ECF No. 50), pursuant to which Mitchell's counsel sought
and was granted leave to file an amended complaint (ECF Nos.
51, 56). Following the filing of the amended complaint, which
considerably amplified the factual allegations, asserted
specific theories for relief, and added Wexford Health
Sources, Inc. (“Wexford”) as a Defendant (ECF No.
57), the parties jointly sought relief as to the case
schedule (ECF No. 60). The Court vacated the earlier
scheduling order, ordered that fact discovery should remain
open, and ordered that “should it be necessary, the
Parties shall submit new discovery deadlines within ten (10)
days of the Court entering a ruling on Defendants'
responsive pleading to Plaintiff's Amended
Complaint.” (ECF No. 61.) Defendants then filed their
motion to dismiss for failure to state a claim and/or motion
for summary judgment. (ECF No. 62.) The motion has been
briefed (ECF Nos. 65, 66), and no hearing is necessary to
resolve it, Local Rule 105.6 (D. Md. 2016). It will be
granted in part and denied in part.
Standard of Dismissal for Failure to State a Claim
complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Facial plausibility exists “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. An inference
of a mere possibility of misconduct is not sufficient to
support a plausible claim. Id. at 679. As the
Twombly opinion stated, “Factual allegations
must be enough to raise a right to relief above the
speculative level.” 550 U.S. at 555. “A pleading
that offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.' . . . Nor does a complaint suffice if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555, 557). Although when considering a motion to
dismiss a court must accept as true all factual allegations
in the complaint, this principle does not apply to legal
conclusions couched as factual allegations. Twombly,
550 U.S. at 555.
Standard for Summary Judgment
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (citing predecessor to current Rule
56(a)). The burden is on the moving party to demonstrate the
absence of any genuine dispute of material fact. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a
verdict in favor of the party opposing the motion, then a
genuine dispute of material fact is presented and summary
judgment should be denied. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the
[opposing party's] position” is insufficient to
defeat a motion for summary judgment. Id. at 252.
The facts themselves, and the inferences to be drawn from the
underlying facts, must be viewed in the light most favorable
to the opposing party, Scott v. Harris, 550 U.S.
372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230
(4th Cir. 2008), who may not rest upon the mere allegations
or denials of his pleading but instead must, by affidavit or
other evidentiary showing, set out specific facts showing a
genuine dispute for trial, Fed.R.Civ.P. 56(c)(1). Supporting
and opposing affidavits are to be made on personal knowledge,
contain such facts as would be admissible in evidence, and
show affirmatively the competence of the affiant to testify
to the matters stated in the affidavit. Fed.R.Civ.P.
have advanced a number of arguments. The Court will address
first those arguments that appear to be appropriately
considered on a motion to dismiss for failure to state a
claim for relief.
Whether Wexford Is a “Person” Within the Meaning
of 42 U.S.C. § 1983
Wexford asserts it is not a “person” within the
ambit of 42 U.S.C. § 1983 and, therefore, cannot be sued
under this statute. The undersigned dealt with this same
issue in Wimbush v. Matera, Civ. No. JKB-11-1916,
2013 U.S. Dist. LEXIS 102509, at *3 n.2 (D. Md. July 23,
2013). Precedent from the United States Court of Appeals for
the Fourth Circuit is unambiguous on this point. A private
business is considered a “person” that may be
held liable under 42 U.S.C. § 1983. Austin v.
Paramount Parks, Inc., 195 F.3d 715, 727-29 (4th Cir.
1999). Wexford's first argument is without merit.
Whether Plaintiff Failed to State a Claim in Count II
Count II, Mitchell has sued Wexford under § 1983 on a
theory of supervisory liability. Although Wexford has
challenged the complaint's adequacy of allegations
establishing pervasive conduct to support supervisory
liability, that is not why the Court now rules that
Mitchell's Count II fails to state a claim for relief. He
has provided no example to the Court of a private business
being held liable under the named theory. Certainly, the
Fourth Circuit has determined that individuals may be liable
on this basis, but it has expressed a restrictive view of
corporate liability under § 1983. In Austin,
the Fourth Circuit stated that a private corporation may be
held liable under 42 U.S.C. § 1983 “only
when an official policy or custom of the corporation causes
the alleged deprivation of federal rights.”
Id. at 728. See also Rojas v. Alexander's
Dep't Store, Inc., 924 F.2d 406, 408-09 (4th Cir.
1990) (noting policy or custom liability established by
Monell v. Dep't of Soc. Servs. of the ...