United States District Court, D. Maryland
FRANK M. NEFF Plaintiff
ECI-E PRISON WARDEN, Defendants
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
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).
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.
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.
Defendants explain that Neff is a 64 year old inmate whose
notable medical issues are epilepsy and
spondylopathy. 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.
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.
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.
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
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.
Judgment is governed by Fed.R.Civ.P. 56(a) which provides
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.
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 ...