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Burnett v. Bishop

United States District Court, D. Maryland

January 31, 2017

FRANK B. BISHOP, et al., Defendants.


          George L. Russell, III United States District Judge

         THIS 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, [1] William Beeman, Brenda Reese, Travis Barnhart, and Wexford Health Services[2] (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.

         I. BACKGROUND

         At all 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, [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).

         Burnett 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.”[4] (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).

         Second, 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).[5]

         Third, 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).[6] Burnett, however, does not allege that he was exposed to or contracted tuberculosis.

         In 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. 12).[7] 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.


         A. Burnett's Motion for Leave to File Amended Complaint

         Under 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 Complaint.

         When a 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.

         B. Defendants' Motions

         1. Standard of Review

         Defendants 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.)).

         The 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).

         Ordinarily, 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) ...

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