United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on two Motions to Dismiss or, in
the alternative, for Summary Judgment: one filed by Defendant
Frank Bishop (ECF No. 14) and the other by Defendants Dr.
Collin Ottey, Dr. Mahboob Ashraf,  William Beeman, Brenda
Reese, Travis Barnhart, and Wexford Health
Services (ECF No. 15). Also pending is Plaintiff
Turner Anthony Burnett's unopposed Motion Requesting
Leave to File an Amended Complaint (ECF No. 12). The Motions
are ripe for disposition and no hearing is necessary.
See Local Rule 105.6 (D.Md. 2016). For the reasons
outlined below, the Court will grant the Motions.
times relevant to his allegations, Burnett was an inmate
incarcerated at the North Branch Correctional Institution
(“NBCI”) in Cumberland, Maryland. (Am. Compl.
¶ 1 at 3,  ECF No. 12 at 2- 13). Bishop is NBCI's
Warden and Wexford Health contracts with NBCI to provide
medical services for NBCI's inmates. (Id.
¶¶ 2, 8 at 3, 4). The remaining Defendants are
Wexford employees. (Id. ¶¶ 3-7 at 3, 4).
presents three challenges to Defendants' conduct. First,
he asserts that Defendants failed to ensure that inmate nail
clippers were properly disinfected. At one point, NBCI
medical personnel were responsible for disinfecting nail
clippers and distributing them to inmates. (Id.
¶ 4 at 6). Defendants, however, “made a conscious
decision” to transfer these responsibilities to
corrections officers. (Id. ¶¶ 2, 5 at 6).
Burnett alleges that “none of the [corrections]
officers were trained as to the legal requirements of
properly cleaning and disinfecting . . . the nail clippers in
hot soapy water, [rinsing them], and plac[ing] [them] in
Barbicide after each use for ten (10) minutes as stated in
federal guidelines.” (Id. ¶ 6 at 6).
Defendants also permitted the corrections officers to ignore
“Barbicide['s] directions for use” and
“[i]nformation and warnings by the National Hepatitis
Correctional Network” by placing
“contaminated” nail clippers “into the same
bowl.” (Id. ¶¶ 7, 8 at 7). Burnett
asserts that in April 2015, he contracted the Hepatitis C
virus (“HCV”) when he cut himself with a pair of
contaminated nail clippers that were improperly disinfected.
(Id. ¶¶ 9, 17).
Burnett alleges Wexford failed to provide adequate medical
care after Burnett was diagnosed with HCV. He acknowledges
that Barnhart, who works in NBCI's infectious disease
department, “spoke candidly and in depth” with
Burnett about how NBCI medical personnel would treat his HCV.
(Id. ¶ 19). Burnett also concedes that Dr.
Ashraf and Barnhart explained that he did not have the
correct genotype of HCV for the prescription drug Harvoni to
be effective. (Id. ¶ 23). Nonetheless, Burnett
asserts that Wexford “withheld obvious medical
treatment” when it refused to prescribe Harvoni.
(Id. at 11).
Burnett asserts that Defendants ignored a longstanding order
of the Maryland Department of Public Safety and Correctional
Services (“DPSCS”) that corrections facilities in
Maryland conduct annual tuberculin skin tests on inmates.
(Id. at 5). Burnett, however, does not allege that he
was exposed to or contracted tuberculosis.
February 2016, Burnett, acting pro se, sued Defendants under
42 U.S.C. § 1983 (2012). (ECF No. 1). Burnett alleges
that Defendants violated his Eighth Amendment right to be
free from cruel and unusual punishments. (Id.).
Burnett seeks declaratory relief and several million dollars
in compensatory and punitive damages. (Am. Compl.
¶¶ A-J). He also asks the Court to order that
Wexford prescribe him Harvoni. (Id. ¶ E).
Burnett obtained representation in May 2016. (ECF No. 6).
Approximately one month later, Burnett filed his Motion
Requesting Leave to File an Amended Complaint (ECF No.
Defendants filed their Motions to Dismiss or, in the
alternative, for Summary Judgment (ECF Nos. 14, 15) -- which
Burnett opposed (ECF Nos. 17, 18) -- in July 2016.
Burnett's Motion for Leave to File Amended
Federal Rule of Civil Procedure 15(a), “[t]he court
should freely give leave [to amend a complaint] when justice
so requires.” Fed.R.Civ.P. 15(a)(2). The decision
whether to grant leave to amend lies within the sound
discretion of the district court. Medigen of Ky., Inc. v.
Pub. Serv. Comm'n of W.Va., 985 F.2d 164, 167-68
(4th Cir. 1993). Burnett's proposed changes to his
original Complaint are mainly, if not entirely,
non-substantive. (See ECF No. 12-2) (depicting changes to
original Complaint). Considering the nature of Burnett's
changes and Bishop's lack of opposition, the Court will
grant Burnett's Motion and consider his Amended
plaintiff files an amended complaint, it generally moots any
pending motions to dismiss because the original complaint is
superseded. See Pac. Bell Tel. Co. v. Linkline
Commc'ns, Inc., 555 U.S. 438, 456 n.4 (2009)
(“Normally, an amended complaint supersedes the
original complaint.”). Where “some of the defects
raised in the original motion remain in the new pleading,
[however, ] the court simply may consider the motion as being
addressed to the amended pleading. To hold otherwise would be
to exalt form over substance.” Buechler v. Your
Wine & Spirit Shoppe, Inc., 846 F.Supp.2d 406, 415
(D.Md.2012) (quoting 6 Charles Alan Wright et al.,
Federal Practice & Procedure § 1476 (3d ed.
2010)). Because all of the defects raised in Defendants'
Motions remain in Burnett's Amended Complaint,
Defendants' Motions remain operative and the Court will
construe them as directed at Burnett's Amended Complaint.
Standard of Review
style their Motions as motions to dismiss under Rule 12(b)(6)
or, in the alternative, for summary judgment under Rule 56. A
motion styled in this manner implicates the Court's
discretion under Rule 12(d). See Kensington Vol. Fire
Dept., 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). This Rule provides that when
“matters outside the pleadings are presented to and not
excluded by the court, the [Rule 12(b)(6)] motion must be
treated as one for summary judgment under Rule 56.”
Fed.R.Civ.P. 12(d). The Court “has ‘complete
discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is
offered in conjunction with a Rule 12(b)(6) motion and rely
on it, thereby converting the motion, or to reject it or
simply not consider it.'” Wells-Bey v.
Kopp, No. ELH-12-2319, 2013 WL 1700927, at *5 (D.Md.
Apr. 16, 2013) (quoting 5C Wright & Miller, Federal
Practice & Procedure § 1366, at 159 (3d ed.
2004, 2012 Supp.)).
United States Court of Appeals for the Fourth Circuit has
articulated two requirements for proper conversion of a Rule
12(b)(6) motion to a Rule 56 motion: notice and a reasonable
opportunity for discovery. See Greater Balt. Ctr. for
Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d
264, 281 (4th Cir. 2013). When the movant expressly captions
its motion “in the alternative” as one for
summary judgment and submits matters outside the pleadings
for the court's consideration, the parties are deemed to
be on notice that conversion under Rule 12(d) may occur.
See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md.
2005). The Court “does not have an obligation to notify
parties of the obvious.” Laughlin v. Metro. Wash.
Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).
summary judgment is inappropriate when “the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc.,637 F.3d 435, 448 (4th Cir. 2011). Yet, “the
party opposing summary judgment ‘cannot complain that
summary judgment was granted without discovery unless that
party had made an attempt to oppose the motion on the grounds
that more time was needed for discovery.'”
Harrods Ltd. v. Sixty Internet Domain Names, 302
F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs.
Applications & Serv. Co.,80 F.3d 954, 961 (4th Cir.
1996)). To raise sufficiently the issue that more discovery
is needed, the non-movant must typically file an affidavit or
declaration under Rule 56(d), explaining the “specified
reasons” why “it cannot present facts essential
to justify its opposition.” Fed.R.Civ.P. 56(d). A Rule
56(d) affidavit is inadequate if it simply demands
“discovery for the sake of discovery.”
Hamilton v. Mayor of Balt.,807 F.Supp.2d 331, 342
(D.Md. 2011) (citation omitted). A Rule 56(d) ...