United States District Court, D. Maryland
J. HAZEL United States District Judge.
Christopher Cox tiled this civil rights action against
Defendants Dr. Barrera. R.N.P. Beverly McLaughlin, and R.N.
Monica. ECF No. 1. Defendant McLaughlin filed a
Motion to Dismiss or for Summary Judgment. ECF No. 9.
Plaintiff opposes the Motion to Dismiss or for Summary
Judgment. ECF No. 13. A hearing is unnecessary. See
Loc. R. 105.6 (D. Md. 2016). For the reasons set forth below,
summary judgment shall be granted, in part, and denied, in
part. Defendant McLaughlin has also moved to seal medical
records submitted as an exhibit in support of the dispositive
motion. ECF No. 10. and that motion is granted.
is an inmate committed to the custody of the Maryland
Division of Correction and. at all times relevant to the
Complaint, was confined at Western Correctional Institution
(WCI) in Cumberland. Maryland. Plaintiff alleges that he was
seen by R.N.P. McLaughlin on October 23. 2015, and that she
ordered his medical supplies and medicine. FXT No. 1 -2 at 4.
During his appointment. Plaintiff asked McLaughlin for his
diagnosis and did not receive a response. Id. On
December2L 2015. Plaintiff saw McLaughlin again for a chronic
care visit. Id. During that visit, he states that
"all meds were renewed." Id. Plaintiff
again asked for his diagnosis, and McLaughlin told him she
would "have to look." Id.
December 23. 2015. Plaintiff was seen by Dr. Robustiano
Barrera who did a strength test and. at Plaintiffs request,
put in a referral for Plaintiff to receive physical therapy.
Plaintiff asked Dr. Barrera ""the name of [his]
diagnosis" and asked why he still required diapers and
catheters. Dr. Barrera told him "I don't know."
and then said it was due to Plaintiff's injury. ECF No.
1-2 at 4-5. Plaintiff explained that his injury was "new
from the last time" and that Dr. Barrera ignored his
assertion. Plaintiff asserts that McLaughlin and Dr. Barrera
have refused to "research" whether his incontinence
was healing or getting worse. Plaintiff also states that at
the time he saw Dr. Barrera. he had an infection. ECF No. 1-2
states that he has filed between 30-50 administrative remedy
procedure requests ('"ARPs") with respect to
his medical and safety needs. ECF No. 13 at 1. On January 6.
2016. Plaintiff was interviewed by Monica Wilt. R.N.. in
reference to an ARP he filed regarding his December 23. 201 5
appointment with Dr. Barrera. ECF No. 1-2 at 5. Plaintiff
claims that Wilt was "very unprofessional" and that
he tiled another ARP for ""disrespect,
unprofessionalism. and neglect." ECF No. 1-2 at 5. On
January 20, 2016. Plaintiff states that he received a notice
signed by K. Martin. R.N.. and Dr. Barrera discontinuing an
order for his use of a wheelchair. Id. The notice
was allegedly dated January 7. 2016. Id. Plaintiff
claims that his wheelchair was discontinued as retaliation
for the ARPs he filed against the medical staff. ECF No. 1-2
response to the Complaint. Defendant McLaughlin provides
relevant medical records and an affidavit from Dr. Barrera
concerning Plaintiffs medical condition. Plaintiff's
medical history includes multiple gunshot wounds to his hack
which occurred in 2014. and an injury to the T-10 vertebra in
his back, resulting from a 2010 motor vehicle accident. ECF
No. 9-5 at 2. Plaintiffs gunshot wounds required the removal
of the lower lobe of his lung, open thoracic surgery,
craniotomy, and a tracheostomy, as well confinement to an
intensive care unit ECF No. 10-2 at 2, 13. The injury to
Plaintiffs thoracic spine (T10) resulted in partial paralysis
of his left leg (monoparalysis). Id. at 2. As a
result of these injuries. Plaintiff is incontinent and is
provided catheter supplies, biohazard bags, and adult
diapers. ECF No. 9-5 at 3.
is also given a cane to assist him with walking, but on
October 23. 2015. when Plaintiff was seen by McLaughlin, he
was allegedly not using the cane. ECF No. 10-2 at 2.
Plaintiff was also being provided a wheelchair for longer
distances, see Id. at 13. but Dr. Barrera reassessed
Plaintiffs need for a wheelchair on December 23. 2015. ECF
No. 9-5 at 3. This reassessment occurred after it was noted
that Plaintiff walked independently with a cane on fiat
surfaces. Id. While spasticity was noted in
Plaintiffs right lower leg. it was also noted that Plaintiff
had the ability to manipulate that leg and walk.
Id., at 3-4. Dr. Barrera"s assessment
was that Plaintiff was able to walk short distances, but that
he would require a wheelchair for distances of more than
fifty yards. Id. at 4. Despite this assessment.
Plaintiffs chart was updated on January 7, 2016. by Kimberly
Martin. R.N.. discontinuing his medical assignment for a
wheelchair for long distances. Id. Dr. Barrera
states in his affidavit that he did not discontinue the
medical assignment for a wheelchair despite the appearance of
his name on the notice, and that he was unaware of any ARPs
filed by Plaintiff prior to this change in the assignment of
a wheelchair, hi.
January 12. 2016. Plaintiff was transferred from WC! to North
Branch Correctional Institution. ECF No. 9-5 at 4. Dr.
Barrcra notes that Plaintiff was placed in segregated housing
on February 18, 2016, making him ineligible for a
medically-assigned wheelchair for distances. ECF No. 9-5 at
4-5. On May 16. 2016. Plaintiff was removed from segregated
housing and placed into "Max II" security.
Id. Dr. Barrera states that as a Max II inmate.
Plaintiff is not allowed to leave his cell block, which also
means he is ineligible to receive a medically assigned
wheelchair for distances, Id. In addition. Dr.
Barrera notes that Plaintiff has not raised any complaints
regarding the discontinuation of his wheelchair in any sick
call requests or administrative complaints, Id.
the discontinuation of Plaintiffs wheelchair assignment, he
has allegedly missed two physical therapy appointments
(February 23 and 25, 2016) and one chronic care appointment
(March 4. 2016). FCF No. 9-5 at 5. Plaintiff attended
physical therapy appointments on February 9 and 20, 2016. and
March 7 and 8. 2016. Id. During those appointments.
Plaintiff was able to complete the exercises and there was no
indication Plaintiff required a wheelchair, Id. Dr.
Barrera's review of Plaintiffs medical records provided
no indication that Plaintiff asked for a diagnosis. ECF No.
9-5 at 3. Plaintiff filed the instant Complaint against
Defendants in this Court on January 28. 2016.
STANDARD OF REVIEW
McLaughlin has moved to dismiss or. in the alternative, for
summary judgment. ECF No. 9. A motion styled "in the
alternative" implicates the court's discretion under
Rule 12(d) of the Federal Rules of Civil Procedure. See
Kensington Vol Fire Dept., inc. v. Montgomery County,
788 F.Supp.2d 431, 436-37 (D. Md. 2011). If the Court
considers matters outside the pleadings, "the motion
must be treated as one for summary judgment under Rule
56." and "[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). Here, the Court
considers evidence outside the pleadings, namely Plaintiffs
medical records and the Barrera affidavit, ECF No. 10; thus,
it will treat Defendant's dispositive motion as one for
judgment is governed by Federal Rule of Civil Procedure
56(a). which provides in part: "[t]he court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." The Supreme Court has
clarified that this does not mean that any factual dispute
will defeat the motion. See Anderson v. Liberty Lobby.
Inc.. 477 U.S. 242, 247-48 (1986). "By its very
terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material
fact." Id. Thus. "[a] mere scintilla of
evidence in support of the nonmovant's position will not
defeat a motion for summary judgment.*" Deirick v.
Panalpina. Inc.. 108 F.3d 529. 536 (4th Cir. 1997).
party opposing a properly supported motion for summary
judgment "may not rest upon the mere allegations or
denials of [his] pleadings." but rather must "set
forth specific facts showing that there is a genuine issue
for trial."" Bouchat v. Baltimore Ravens
Football (Ink, Inc..346 F.3d 514, 522 (4th Cir. 2003)
(alteration in original) (quoting Fed.R.Civ.P. 56(e)). The
court should "view the evidence in the light most
favorable to . . . the nonmovant. and draw all inferences in
[his] favor without weighing the evidence or assessing the
witnesses' credibility." Dennis v. Columbia
Colleton Med. Ctr.. Inc..290 F.3d 639. 644-45 (4th Cir.
2002). The Court must, however, also abide by the
""affirmative obligation of the trial judge to
prevent factually unsupported claims and ...