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Neff v. ECI-E Prison Warden

United States District Court, D. Maryland

May 18, 2017

FRANK M. NEFF Plaintiff
v.
ECI-E PRISON WARDEN, Defendants

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE

         Defendants Wexford Health Source, Inc., Ruth Pinkney, P.A., and Jason Clem, M.D. (hereinafter Medical Defendants) filed a Motion to Dismiss or for Summary Judgment (ECF 37) in response to the above-entitled self-represented civil rights complaint. The remaining Defendants, Warden Kathleen Green, Secretary Stephen Moyer, and "the Commissioner of Correction" (hereinafter Correctional Defendants), also filed a Motion to Dismiss or for Summary Judgment in response to the claims asserted against them in the same complain.. ECF 51. Plaintiff Frank Neff opposes the motions. ECF 42, 45 & 47. For the reasons that follow, the motions filed by Defendants shall be construed as Motions for Summary Judgment and shall be granted without a hearing which this Court deems unnecessary. See Local Rule 105.6 (D. Md. 2016).

         The complaint was originally filed in the United States District Court for the District of Delaware and later transferred to this Court as all matters asserted concern events allegedly occurring in Westover. Maryland at Eastern Correctional Institution (ECI), where Plaintiff Frank Neff is incarcerated. Neff states in the original complaint that this Court is biased against him and states all of the cases he files in this Court are dismissed. ECF 1. He claimed in his original complaint that his rights were violated and he was directed to file an amended complaint.

         In his amended complain,, Neff states that his First and Fourteenth Amendment rights were violated. ECF 4 at p. 2. He claims that on March 10, 2015, Peter Stanford, a physician's assistant at ECI, said that Neff needs a cane to help him walk and that he needs a hearing aid for his right ear. Id. at p. 3. Neff further claims that he had been prescribed medications as "keep on person" or KOP, but they were taken from him. Id. He states that "ECI Medical Wexford" denied the request for a cane and for a hearing aid, and also denied KOP medications. Id. Neff claims that he is a fall risk and that he fell twelve times in the past ten months, hurting himself "real bad" on four occasions. Id. at p. 4. Neff states that while medical staff claim he was selling his medical supplies, the matter was investigated in February 2015 and no proof was found. Id. Neff also claims there is no evidence that he presents a security threat to staff if he is given a cane. Id.

         Medical Defendants explain that Neff is a 64 year old inmate whose notable medical issues are epilepsy and spondylopathy.[1] Neff is prescribed Dilantin to reduce his risk of seizures; however, Medical Defendants state that Neff has a long history of being non-compliant with prescribed medications wherein he either refuses to take medication or threatens not to take it for purposes of a secondary gain or sells supplies provided to him for incontinence. See ECF 37 at Ex. I, pp. 8 - 9 (admission of non-compliance with Dilantin medication), 10 - 12 (report from RN he sold tape used with "pull-ups"), 20 (stated intent to refuse medication), 23 (refused morning medication), 25 (refused to allow vital sign measurement), 34 (Dilantin level subtherapeutic due to non-compliance), 36 (refusing Dilantin), 38 (refusing all meds if not provided Mylanta), 46-48 (refusal of medication). Additionally, Neff is known to be combative and aggressive with medical staff. Id. at pp. 1 (threw briefs at staff because he wanted diapers instead), 13-14 (threatened non-compliance with other medication if not allowed KOP medications), 83 (refusing blood draw because "the PA and Nurse are liars"). Although Neff is not provided with KOP medications due to his suspected history of selling his medications and medical supplies as well as his confirmed non-compliance with prescribed medications, he is still provided medication at the prison's dispensary. ECF 37 at Ex. 2.

         With regard to use of a cane, Neff was prescribed a quad cane on March 19, 2015, when it was noted that he had fallen, his right knee was swollen, and he was walking with a limp. ECF 39 at p. 3, see also p. 5 (confirming cane was ordered). On April 8, 2015, when the cane ordered for Neff arrived at the institution, medical staff was informed that the last time Neff was issued a cane he assaulted staff with it. Id. at p. 7. Based on that security concern, the cane was not provided to Neff and the matter was remanded to medical staff for further consideration. Id. The following day, a decision was made to issue a cane to Neff with restrictions. Id. at p. 10. The restrictions were that the cane could only be made of wood and it would only be used by Neff when he was moving from his cell to the shower. Id. An additional accommodation was made to transport Neff to his medical appointments via wheelchair. Id.

         On May 15, 2015, it was reported to medical staff by custody staff that Neff had been observed walking without assistance to his Native American meetings. Id. at p. 15. Given this information, coupled with his prior assault on staff with a previously issued cane, Neff was transferred to Ward C for observation and further determination of whether he required assistive devices. Id. On May 17, 2015, Neff was observed in the ward walking without the need for assistance; showering without assistance; and standing on his toes, reaching up to change the TV channels. Id. at p. 25. On May 19, 20 IS, it was determined that Neff could be sent back to HU 8-0 where he would resume feed-in status alter he was regularly observed walking without difficulty and with minimal limp. Id. at p. 30.

         Medical Defendants do not address the allegation that Neff requires a hearing aid and there is no mention of a hearing loss in any of the records submitted in support of their motion. Neff appears to abandon this claim as it is not raised in his opposition response.

         Correctional Defendants join in the motion filed by Medical Defendants and also assert that to the extent he asserts a cognizable claim against them, Neff has failed to exhaust administrative remedies. ECF 51.

         Standard of Review

         Summary Judgment is governed by Fed.R.Civ.P. 56(a) which provides that:

The 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:

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 ...

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