United States District Court, D. Maryland
JAMES J. JARDINA, # 418-567 Plaintiff,
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, RICHARD J. GRAHAM, JR. Warden WCI, DENISE GELSINGER, Ass't Warden WCI, B. ZILLER, CO II WCIWEXFORD HEALTH SOURCES, INC., ROBUSTIANO BARRERA, Doctor WCI, BEVERLY McLAUGHLIN, RNP, MedicalProvider WCI Defendants.
K. BREDAR UNITED STATES DISTRICT JUDGE.
is James J. Jardina's complaint filed pursuant to 42
U.S.C. § 1983. Defendants Wexford Health Sources, Inc.,
Robustiano Barrera, M.D., and Beverly McLaughlin, C.R.N.P.,
(collectively, the ‘Wexford Defendants'), by their
counsel, have filed a motion to dismiss or, in the
alternative for summary judgment (ECF No. 14). Defendants the
Department of Public Safety and Correctional Services
(“DPSCS”), former Assistant Warden Denise
Gelsinger, and COII Bobby J. Ziler (collectively, the
“State Defendants”), by their counsel, have filed
a motion to dismiss or, in the alternative, for summary
judgment. ECF No. 27. Jardina filed an opposition and a
supplement to the Wexford Defendants' motion to dismiss
or in the alternative for summary judgment (ECF Nos. 33, 38)
to which the Wexford Defendants filed a reply. ECF No. 42.
issues have been briefed, the matter is ripe for disposition,
and no hearing is required. See Local Rule 105.6 (D.
is an inmate at the Dorsey Run Correctional Facility in
Jessup, Maryland. The claims he presents in this complaint
arise from his May 6, 2015, fall from a wheelchair during the
time he was an inmate at Western Correctional Institution
(“WCI”) in Cumberland, Maryland.
describes himself as a 6'5 inches tall, 280-pound,
“wheelchair bound” and handicapped inmate.
Id. The attachments to his complaint show that on
May 8, 2014, defendant McLaughlin wrote a medical order to
provide Jardina a wheelchair for transportation over
distances greater than 50 feet. ECF No. 1-4. On May 4, 2015,
Barrera updated and continued the order through May 4, 2016.
describes the events leading up to his fall on May 6, 2015,
as follows. Defendant Ziler instructed inmate Shannon Cline
to take a wheelchair from the housing unit to push Jardina by
wheelchair across the prison grounds to the medication line.
ECF 1 at p. 5. Jardina alleges that Ziler “knew inmate
Cline was not trained as wheelchair attendant and knew the
wheelchair was to[o] small and not personalized to
Jardina.” Id. Jardina also asserts the pathway
had ruts and depressions and was wet because it had rained.
Id. As Cline pushed Jardina, the wheelchair hit a
rut on the sidewalk and the right front wheel broke off the
wheelchair. Cline lost his footing on the wet pavement and
lost control of the wheelchair, causing Jardina to be thrown
from the wheelchair. Jardina alleges he hit his head, lost
consciousness, and injured his back, neck, and left hand and
has filed a copy of Russell Marks's declaration executed
on December 14, 2015. ECF 1-7. Marks states he is a federal
Bureau of Prisons' inmate housed at WCI. Id.
Marks attests he was an inmate safety specialist at the
Federal Correctional Institution in Mariana, Florida, for
several years and is very familiar with the safety
requirements of McKesson wheelchairs and the Americans with
Disabilities Act. Jardina filed a copy of the McKesson
wheelchair manual with his complaint. ECF No. 1-2. Marks states
that DPSCS and WCI medical and administrative staff
“know” that 1) five or more wheelchairs are
stored at the front of every building; 2) these wheelchairs
are not personalized to the inmate using them; 3) inmates not
trained as wheelchair attendants use these wheelchairs to
push wheelchair-bound inmates down the sidewalks to meals and
to receive their medication; 4) untrained wheelchair
attendants are pushing wheelchair-bound inmates through the
rain and snow on sidewalks full of ruts and depressions; and
5) water causes the wheelchair to rust making it unsafe for
use. Id. Notably, Marks fails to link with
specificity these allegations to defendants. He does not
explain why these defendants “know” of these
alleges that defendants were deliberately indifferent to his
safety and medical needs by failing to provide him a
personalized wheelchair and certified, trained wheelchair
pusher, to maintain the wheelchair in which he was injured,
and to maintain the pathway where he was injured.
Id. Jardina claims that defendants' actions and
omissions violated his rights under the Eighth Amendment of
the United States Constitution and the Americans with
Disabilities Act (ADA) and also demonstrate gross negligence
under the Maryland Tort Claims Act. ECF 1 at
p. 4. As redress, Jardina seeks a declaration that defendants
violated his constitutional rights, an injunction ordering
defendants to comply with wheelchair maintenance and
instruction manuals, compensatory and punitive damages of
unstated sum, disability compensation of $90.00 per day
against each defendant, court costs, and release from prison
on parole or medical parole.
Motion to Dismiss
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. The Supreme
Court in Twombly 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.
filed by pro se plaintiffs, as here, are “to be
liberally construed” and “must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). However, the Complaint must contain more than
“legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement.”
Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc.,
591 F.3d 250, 255 (4th Cir. 2009).
Motion for Summary Judgment
assert they are entitled to dismissal or summary judgment in
their favor on several grounds, including lack of exhaustion
and the absence of a genuine dispute as to any material fact.
Summary judgment is proper when the moving party
demonstrates, through “particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
..., admissions, interrogatory answers, or other materials,
” 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), (c)(1)(A); see
Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th
Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows a genuine
dispute exists as to material facts. See Celotex v.
Catrett, 477 U.S. 317 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a
motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). Instead, the
evidentiary materials submitted must show facts from which
the finder of fact reasonably could find for the party
opposing summary judgment. Id. “In ruling on a
motion for summary judgment, this Court reviews the facts and
all reasonable inferences in the light most favorable to the
nonmoving party.” Downing v. Baltimore City
Bd. of School Comm'rs, Civ. No. RDB
12-1047, 2015 WL 1186430, at *1 (D. Md. Mar. 13, 2015)
(citing Scott v. Harris, 550 U.S. 372, 378 (2007)).
have filed copies of verified documents and declarations with
their pleadings. The court may consider a wider range of
documents when it treats a motion to dismiss as a motion for
summary judgment, which it may do pursuant to Rule 12(d).
See Syncrude Canada Ltd. v. Highland Consulting Group,
Inc., 916 F.Supp.2d 620, 623 (D. Md. 2013). When the
court does so, “[a]ll parties must be given a
reasonable opportunity to present all the material that is
pertinent to the motion.” Fed.R.Civ.P. 12(d). Notably,
“the Federal Rules do not prescribe that any particular
notice be given before a Rule 12 motion is converted to a
Rule 56 motion.” Ridgell v. Astrue, Civ. No.
DKC-10-3280, 2012 WL 707008, at *7 (D. Md. Mar. 2, 2012).
Thus, this requirement “can be satisfied when a party
is ‘aware that material outside the pleadings is before
the court.'” Walker v. Univ. of Md. Med. Sys.
Corp., Civ. No. CCB-12-3151, 2013 WL 2370442, at *3 (D.
Md. May 30, 2013) (quoting Gay v. Wall, 761 F.2d
175, 177 (4th Cir. 1985)). Though the Court “clearly
has an obligation to notify parties regarding any
court-instituted changes in the pending proceedings, [it]
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). Here,
defendants designate their motion as a “motion to
dismiss, or in the alternative, motion for summary
judgment.” Further, Jardina was provided the
opportunity to dispute these exhibits with verified exhibits
and affidavits. ECF Nos. 16, 28.
RESPONSE I.State Defendants
State Defendants move for dismissal of the claims against
them or for summary judgment and have filed supporting
declarations and other evidence.
Richard Graham explains that Wexford Health Sources, Inc.,
contracts with the State of Maryland to treat inmates in
DPSCS custody. Graham states that neither he nor any
correctional administrator nor any member of the correctional
staff is personally involved in providing inmate medical
care. ECF No. 27-2. Graham states that he has no authority to
make decisions about inmate medical care or to order the
contractor's medical staff to provide a particular
procedure or treatment. Graham states Wexford medical
professionals are in charge of scheduling medical procedures
and recommending whether an inmate should have access to a
wheelchair. Graham also states: “At no time did a
doctor advise my office of any need for Plaintiff to have a
‘personalized' wheelchair.” Id.
¶5. Graham further states that after the incident, the
paved walkways have been repaired and cracks sealed, and
Jardina's medication at WCI was delivered to him so that
he did not need to travel across the WCI compound.
Inmate Grievance Office (“IGO”) Hearing
6, 2015, Jardina filed an Administrative Remedy Procedure
(“ARP”) request based on his fall. Defendant
Denise Gelsinger, then acting warden, dismissed the ARP,
WCI-0751-15. ECF 1-3. Gelsinger indicated investigation had
revealed that the wheelchair Jardina was using malfunctioned
due to normal wear and tear, not a crack in the pavement. The
wheelchair was immediately taken out of service and sent for
repair. The dismissal noted that after the incident, Jardina
was treated in the medical unit for wrist pain. Id.
The Commissioner of the Division of Correction affirmed the
dismissal. ECF 27-3 at p. 7 ¶30.
18, 2015, Jardina filed a grievance with the IGO. As
summarized by Administrative Law Judge (“ALJ”)
Marleen Miller, Jardina claimed that he was injured due to
WCI's “arbitrary and capricious failure to: 1)
assign him a wheelchair that was properly adjusted to his
size and weight; 2) assign a trained or certified wheelchair
pusher to transport him; 3) properly maintain the path for
wheelchair traffic; and 4) properly maintain the
wheelchair.” ECF 27-3 at p. 8 (Opinion for IGO Case No.
20151706). The ALJ found Jardina's negligence claims
meritorious. The ALJ determined Jardina's injuries were
caused by the DOC's negligence, its arbitrary and
capricious failure to properly maintain the path, its failure
to provide the grievant a properly sized and adjusted
wheelchair and/or properly trained wheelchair pusher, and
recommended awarding Jardina $4, 600. Id. at p. 12.
The decision was affirmed by the Secretary of DPSCS. ECF 27-2
¶ 6. The money was deposited in Jardina's account on
April 27, 2016. Id.
ALJ's decision recognized that Jardina presented causes
of action in negligence and under the Eighth Amendment:
“As a result of these allegedly negligent or grossly
negligent acts and/or omissions, the Grievant relies on the
Eighth Amendment in support of his claim.” ECF No. 27-3
at p. 9 (footnote omitted). The ALJ's decision, however,
based liability based solely upon a finding of negligence,
and it noted that “[o]ne ...