United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on Defendants', Shannae Proud,
Mohamed Moubarek, M.D., Stephany McGann, M.D. Warden Timothy
Stewart, Brent Fuller, Mark Lathrop, and the United States of
America, Motion to Substitute the United States and Motion to
Dismiss or, in the Alternative for Summary Judgment. (ECF No.
12). Also before the Court are Plaintiff Karl Bruce
Edwards' Motion for Reconsideration of the Order Denying
his Motion to Appoint Counsel, his Second Motion to Appoint
Counsel, his Second Motion for Reconsideration of Appointment
of Counsel and his Third Motion to Appoint Counsel. (ECF Nos.
18, 19, 20, 21). The Motions are ripe for disposition and no
hearing is necessary. See Local Rule 105.6 (D. Md.
2016). For the reasons outlined below, Edwards' Motion
for Reconsideration of the Order Denying his Motion to
Appoint Counsel, his second Motion to Appoint Counsel, his
second Motion for Reconsideration of Appointment of Counsel
and his third Motion to Appoint Counsel (ECF Nos. 18, 19, 20,
21) will be denied. Defendants' Motion to Substitute,
Motion to Dismiss (ECF No. 12) will be granted.
Edwards is an inmate at the Federal Correctional Institution
in Cumberland, Maryland (“FCI-Cumberland”).
Edwards alleges in the Complaint that after he tripped and
hurt his ankle on February 5, 2015, at 2:24 p.m. he reported
the injury to Shannae Proud, a recreation staff officer at
FCI Cumberland. (Compl. at 8). Proud allegedly
“disregarded” Edwards' safety and denied him
immediate medical treatment. (Id. at 8). Edwards
claims Proud later “fabricated” that he had
refused to go to the Health Service in the injury report log.
(Id. at 9). He faults Captain Mark Lathrop for
failing to oversee the proper documentation of his injury.
(Id.). At 7:00 p.m. that evening, Edwards reported
his ankle injury to Officer Brent Fuller, who also allegedly
“disregarded” his safety and denied him emergency
treatment. (Id. at 8). Edwards states he was not
seen by medical providers until the following day, February
pleads that he had to wait until February 10, 2015, to learn
from Nurse VanMeeter that an x-ray revealed his ankle was
“broken.” (Id.). On February
19, 2015, Dr. McGann informed Edwards that his left ankle was
fractured, not broken, and would heal while he waited to see
an orthopedist. Edwards faults McGann for failing to provide
direct, timely, and proper medical treatment during this
time, and Dr. Moubareck for failing to supervise his timely
diagnosis and medical care. (Id. at 9). Edwards
faults McGann for refusing to replace his ankle brace.
Edwards alleges Moubarek confiscated his soft shoes and
walking cane in retaliation for filing Administrative Remedy
Procedure requests (“ARP”). (Id.).
Edwards claims Warden Stewart failed to oversee safe and
proper operations regarding policy and injury procedures.
pro se Complaint, he presents claims pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971) and the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346(b), 2401(b), 2671-80. (ECF No.
1). Edwards alleges Defendants were negligent, committed
medical malpractice, and denied him constitutionally adequate
medical care for an ankle injury he suffered on the afternoon
of February 5, 2015, after he tripped in the gym at
FCI-Cumberland. As redress, Edwards seeks monetary damages in
the amount of $50, 000 for his pain and suffering, as well as
for “needless anxiety, depression, sleeplessness, and
emotional distress.” (Compl. at 10, ECF No. 1).
Motion to Appoint Counsel
district court need not request an attorney's assistance
pursuant to 28 U.S.C. §1915(e)(1) unless the case
presents complex issues or exceptional circumstances. See
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984).
Exceptional circumstances include a litigant who “is
barely able to read or write, ” id. at 162, or
clearly “has a colorable claim but lacks the capacity
to present it, ” Berry v. Gutierrez, 587
F.Supp.2d 717, 723 (E.D. Va. 2008); see also Altevogt v.
Kirwan, No. WDQ-11-1061, 2012 WL 135283, at *2 (D. Md.
Jan. 13, 2012).
on April 4, 2017, the Court denied without prejudice
Edwards' first Motion for Appointment of Counsel, noting
that he had adequately presented his claims, filed an
opposition to Defendants' dispositive motion, and the
claims presented were not overly complex. (ECF No. 17).
8, 2017, Edwards filed a Motion for Reconsideration of the
denial (ECF No. 18) and a second Motion to Appoint Counsel
(ECF No. 19). In the Motion for Reconsideration, Edwards
avers that subsequent to denial of his first Motion to
Appoint Counsel, Defendants' filed a Reply, which he
claims is an “unusual action, ” warranting
appointment of counsel. (Id.). Edwards also claims
that Bureau of Prisons' policy prohibits inmates from
assisting each another with legal matters. (Id.).
Edwards' second Motion to Appoint Counsel, Second Motion
for Reconsideration, and third Motion to Appoint Counsel
reiterate these assertions. (ECF Nos. 19, 20, 21).
for reconsideration of a non-final interlocutory order, as is
the case here, are governed by Federal Rule of Civil
Procedure 54(b) and “are not subject to the strict
standards applicable to motions for reconsideration of a
final judgment.” Am. Canoe Ass'n v. Murphy
Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003). While
the precise standard governing a motion for reconsideration
of an interlocutory order is unclear, courts in this circuit
look to Rule 59(e) for guidance. Butler v. Directsat
USA, LLC, 307 F.R.D. 445, 449 (D. Md. 2015) (noting that
courts frequently look to the standards articulated in Rules
59(a) and 60(b) “for guidance in considering such
motions”). Under Rule 59(e), a district court may alter
or amend a judgment: “(1) to accommodate an intervening
change in controlling law; (2) to account for new evidence
not available at trial; or (3) to correct a clear error of
law [or] prevent manifest injustice.” U.S. ex rel.
Becker v. Westinghouse Savannah River Co., 305 F.3d 284,
290 (4th Cir. 2002) (citations and internal quotation marks
Defendants' filing of a Reply is not unusual. Nor has
there been an intervening change of law, new evidence, or
demonstration of a need to prevent “manifest
injustice.” Id. Accordingly, the Motions for
Reconsideration (ECF Nos. 18, 20) will be denied. Further,
Edwards has demonstrated his ability to present his claims
and file an opposition in this litigation. Defendants'
filing of a Reply does not render this case complex or give
rise to exceptional circumstances warranting appointment of
counsel. Accordingly, Edwards' Motions for Appointment of
Counsel (ECF No. 19, 21) will be denied.
Motion to Dismiss or, in the Alternative, for Summary
Standard of Review
moves to dismiss the Complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure or, in the Alternative,
under Rule 56. “When matters outside the pleading are
presented to and not excluded by the court, the 12(b)(6)
motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56.” Laughlin v.
Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th
Cir. 1998) (quoting Fed.R.Civ.P. 12(b)) (internal quotation
marks omitted). Under Rule 56, the Court must grant summary
judgment if the moving party demonstrates there is no genuine
issue as to any material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
reviewing a motion for summary judgment, the Court views the
facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party's favor. Ricci
v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970)). Summary judgment is proper when the movant
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).
Significantly, a party must be able to present the materials
it cites in “a form that would be admissible in
evidence, ” Fed.R.Civ.P. 56(c)(3), and supporting
affidavits and declarations “must be made on personal
knowledge” and “set out facts that would be
admissible in evidence, ” Fed.R.Civ.P. 56(c)(4).
“material fact” is one that might affect the
outcome of a party's case. Anderson, 477 U.S. at
248; see also JKC Holding Co. v. Wash. Sports Ventures,
Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.
2001)). Whether a fact is considered to be
“material” is determined by the substantive law,
and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248; accord
Hooven-Lewis, 249 F.3d at 265. A “genuine”
dispute concerning a “material” fact arises when
the evidence is sufficient to allow a reasonable jury to
return a verdict in the nonmoving party's favor.
Anderson, 477 U.S. at 248. If the nonmovant has
failed to make a sufficient showing on an essential element
of his case where he has the burden of proof, “there
can be ‘no genuine [dispute] as to any material fact,
' since a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
motion for summary judgment is properly made and supported,
the burden shifts to the nonmovant to identify evidence
showing there is a genuine dispute of material fact. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586- 87 (1986). The nonmovant cannot create a
genuine dispute of material fact “through mere
speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985) (citation omitted).
Court must also abide by its affirmative obligation to
prevent “factually unsupported claims and
defenses” from going to trial. Drewitt v.
Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (citing
Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128
(4th Cir. 1987)). If the evidence presented by the nonmovant
is “merely colorable, or is not significantly
probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249-50 (citations omitted).
rely on exhibits attached to their dispositive Motion, which
is titled in the alternative as a Motion for Summary
Judgment. Consonant with Roseboro v. Garrison, 528
F.2d 309 (4th Cir. 1975), the Clerk sent notice to Edwards
informing him that he may file an opposition with affidavits
and exhibits in support, and he has done so. (ECF Nos. 13,
14). Accordingly, the Court ...