United States District Court, D. Maryland
KENNETH S. COBEY, # 185-525, Plaintiff
DEPARTMENT OF PUBLIC SAFETY and CORRECTIONAL SERVICE DIVISION OF CORRECTIONS- MARYLAND WEXFORD HEALTH SOURCES, INC. CORRECTIONAL MEDICAL SERVICES, INC. EASTERN CORRECTIONAL INSTITUTION - West DR. OTEYZA MRS. TABLOW, Physician's Assistant LT. HARRIS, MCI-J KATHLEEN GREEN, Warden ECI-W MR. WOLF, ECI-W MR. MOYER, Secretary, DOC Maryland DAYENA M. CORCORAN, Commissioner, MD. MICHAEL J. ZEIGLER, Operations, DOC MD. Defendants
Xinis United States District Judge.
S. Cobey, a Maryland Division of Correction
(“DOC”) prisoner currently confined at Eastern
Correctional Institution (“ECI”) in Westover,
Maryland, has filed a civil rights complaint under 42 U.S.C.
§ 1983, seeking injunctive relief mandating his failing
hip replacement be examined by an “outside”
specialist so that surgery can be scheduled. ECF 1 at p. 4.
Cobey, who is self-represented, alleges that he has submitted
sick call slips concerning his condition since 1996, and
received a left hip total arthroplasty due to acute avascular
necrosis on November 1, 2004. ECF 1 at p. 2,
¶¶10-11, 13. Cobey's Motion for Leave to
Proceed In Forma Pauperis (ECF No. 2) will be provisionally
granted pending computation of his initial partial filing fee
pursuant to 28 U.S.C. § 1915(a)(2). For reasons set
forth herein, his civil rights claim under the Eighth
Amendment shall proceed solely against Defendants Oteyza and
Tablow, and he will be required to supplement his Complaint
should he wish to pursue his claim of retaliation against
Defendant Harris or his claim of supervisory liability
against Defendants Green, Wolf, Moyer, Corcoran, and Zeigler.
Complaint, postmarked November 28, 2016 (ECF 1-1 at p. 2),
alleging Eighth Amendment claims of medical neglect going
back 20 years, was received for filing on November 30,
2016. While § 1983 provides a federal cause
of action under the Eighth Amendment for the denial of
medical care, it “looks to the law of the State in
which the cause of action arose” for the applicable
statute of limitations. It adopts “that which the State
provides for personal-injury torts.” Wallace v.
Kato, 549 U.S. 384, 387 (2007), citing Owens v.
Okure, 488 U.S. 235, 249-250, (1989); Wilson v.
Garcia, 471 U.S. 261, 279-280, (1985). In Maryland the
applicable statute of limitations is three years from the
date of the occurrence. See Md. Cts & Jud. Proc.
Code Ann.' 5-101. Thus, in assessing Cobey's claims,
this court will examine incidents occurring on or after
November 28, 2013, three years prior to the date of filing.
§ 1983, liability is imposed on “any person who
shall subject, or cause to be subjected, any person . . . to
the deprivation of any rights....” 42 U.S.C. §
1983. A private corporation is not liable under § 1983
for actions allegedly committed by its employees when such
liability is predicated solely upon a theory of
respondeat superior. See Austin v. Paramount
Parks, Inc., 195 F.3d 715, 727-28 (4th Cir. 1999);
Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th
Cir. 1982); Clark v. Maryland Dep't of Public Safety
and Correctional Services, 316 Fed.Appx. 279, 282 (4th
Cir. 2009). Medical personnel such as Dr. Oteyza and
Physician's Assistant Tablow may be held responsible for
failing to provide treatment under the civil rights statute;
Wexford Health Sources, Inc (“Wexford”) and
Correctional Medical Services, Inc. (“CMS”),
corporate entities, may not, on the claims asserted here.
Wexford and CMS shall be dismissed from this
because it is sued under § 1983, Defendant Department of
Public Safety and Correctional Services (“DPSCS”)
is entitled to dismissal because it is not a
“person” subject to suit under 42 U.S.C. §
1983. See West v. Atkins, 487 U.S. 42, 48 (1988);
see also Clerk v. Md. Dep't of Public Safety and
Corr. Services, 316 Fed.Appx. 279 (4th Cir. 2009);
Austin v. Paramount Parks, Inc., 195 F.3d 715, 728
(4th Cir. 1999). Cobey also names his current place of
confinement, the Eastern Correctional Institution
(“ECI”) as a Defendant. A number of courts have
held that inanimate objects such as buildings, facilities,
and grounds do not act under color of state law and are not
subject to suit under § 1983. See Preval v.
Reno, 57 F.Supp.2d 307, 310 (E.D. Va. 1999)
(“[T]he Piedmont Regional Jail is not a ‘person,
' and therefore not amenable to suit under 42 U.S.C.
§ 1983.”); Brooks v. Pembroke City Jail,
722 F.Supp. 1294, 1301(E.D. N.C. 1989) (“Claims under
§ 1983 are directed at ‘persons' and the jail
is not a person amenable to suit.”). The § 1983
claim against ECI is subject to dismissal.
in the Fourth Circuit is well established that the doctrine
of respondeat superior also does not apply to
supervisory personnel in '1983 claims. See Love-Lane
v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no
respondeat superior liability under '1983). Liability of
supervisory officials Ais not based on ordinary principles of
respondeat superior, but rather is premised on >a
recognition that supervisory indifference or tacit
authorization of subordinates= misconduct may be a causative
factor in the constitutional injuries they inflict on those
committed to their care.=@ Baynard v. Malone, 268
F.3d 228, 235 (4th Cir. 2001), citing Slakan v.
Porter, 737 F.2d 368, 372 (4th Cir. 1984).
liability under ' 1983 must be supported with evidence
that: (1) the supervisor had actual or constructive knowledge
that his subordinate was engaged in conduct that posed a
pervasive and unreasonable risk of constitutional injury to
citizens like the Plaintiff; (2) the supervisor's
response to the knowledge was so inadequate as to show
deliberate indifference to or tacit authorization of the
alleged offensive practices; and (3) there was an affirmative
causal link between the supervisor's inaction and the
particular constitutional injury suffered by the Plaintiff.
See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.
Cobey suggests that “he made high ranking officials
aware of his medical situation, and filed proper remedy
procedures and complaints [sic] forms, ” ECF 1 at p. 4,
¶ 24, he does not specify who received those forms and
when the forms were sent. To the extent that he seeks to
impose liability on ECI Wardens Green and Wolf, Secretary
Moyer, Commissioner Corcoran or Operations Manager Zeigler,
Cobey must supplement his Complaint to provide this and/or
other information supporting his claim.
Eighth Amendment prohibits “unnecessary and wanton
infliction of pain, ” Gregg v. Georgia, 428
U.S. 153, 173 (1976), and scrutiny under the Eighth Amendment
“is not limited to those punishments authorized by
statute and imposed by a criminal judgment.”
De'Lonta v. Angelone, 330 F.3d 630, 633 (4th
Cir. 2003). In the context of delay or denial of medical
care, an Eighth Amendment violation arises when the actions
of a defendant, or the failure to act, amount to deliberate
indifference to a serious medical need. See Estelle v.
Gamble, 429 U.S. 97, 105-06 (1976). Deliberate
indifference to a serious medical need requires proof that,
objectively, the prisoner plaintiff was suffering from a
serious medical need and that the prison staff were aware of
the need for medical attention but failed to either provide
it or ensure the needed care was available. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994). Cobey's
allegations appear to meet this standard, and Defendants
Oteyza and Tablow must respond.
requests appointment of counsel. ECF 3. A federal district
court judge's power to appoint counsel under 28 U.S.C.
§ 1915(e)(1),  is a discretionary one, and may be
considered where an indigent claimant presents exceptional
circumstances. See Cook v. Bounds, 518 F.2d 779 (4th
Cir. 1975); see also, Branch v. Cole, 686 F.2d 264
(5th Cir. 1982). The question of whether such circumstances
exist in a particular case hinges on the characteristics of
the claim and the litigant. See Whisenant v. Yuam,
739 F.2d 160, 163 (4th Cir. 1984). Where a colorable claim
exists but the litigant has no capacity to present it,
counsel should be appointed. Id.
early stage in the proceeding, it is impossible to ascertain
whether appointment of counsel will be warranted. For that
reason, the Motion will be dismissed without prejudice,
subject to renewal in the future.
case shall proceed against Defendants Oteyza and Tablow as a
civil rights action alleging a failure to provide adequate
and appropriate medical care in violation of the Eighth
Amendment. Plaintiff shall be granted an opportunity to
supplement his Complaint to provide more information as to
his claim of retaliation against Defendant Harris and his
claim of supervisory liability against Defendants Green,
Wolf, Moyer, Corcoran and Zeigler. A separate Order shall be
entered in accordance with this Memorandum.