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Jardina v. Department of Public Safety and Correctional Services

United States District Court, D. Maryland

March 3, 2017

JAMES J. JARDINA, # 418-567 Plaintiff,



         Pending 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.

         The issues have been briefed, the matter is ripe for disposition, and no hearing is required. See Local Rule 105.6 (D. Md. 2016).


         Jardina 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.

         Jardina 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. ECF 1-5.

         Jardina 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 wrist. Id.

         Jardina 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.[3] 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 matters. Id.

         Jardina 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.


         I. Motion to Dismiss

         A 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.

         Complaints 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., Inc., 591 F.3d 250, 255 (4th Cir. 2009).

         II. Motion for Summary Judgment

         Defendants 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)).

         Defendants 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.

         DEFENDANTS' RESPONSE I.State Defendants

         The State Defendants move for dismissal of the claims against them or for summary judgment and have filed supporting declarations and other evidence.

         A. Graham Declaration

         Defendant 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. Id.[4]

         B. Inmate Grievance Office (“IGO”) Hearing

         On May 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.

         On July 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.

         The 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 ...

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