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Lloyd v. Glennon

United States District Court, D. Maryland

December 5, 2017

GARRETT GLENNON, et al., Defendants


          James K. Bredar Chief Judge

         Anthony Lloyd, a self-represented Maryland prisoner, filed a civil rights complaint alleging that he was illegally detained in a State correctional facility when he injured his right triceps after falling from his bunk. He alleges he received constitutionally inadequate medical care for his injury. ECF 6. Now pending are Motions to Dismiss or, in the Alternative, for Summary Judgment filed by defendants J. Philip Morgan (ECF 21) (“Correctional Defendant”), Contah Nimely, Lori Slavick, and Wexford Health Source, Inc. (“Medical Defendants”). ECF 27. Plaintiff opposes the motions (ECF 29, 30, 33, 37), and Medical Defendants filed a reply. ECF 35. No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, Correctional Defendant's Motion to Dismiss, or for Summary Judgment, shall be granted, plaintiff's complaint against Deputy State's Attorney for Baltimore County Garrett Glennon and Warden J. Philip Morgan shall be dismissed, and Medical Defendants' Motion to Dismiss, or for Summary Judgment, shall be denied without prejudice, subject to renewal within 45 days of the date of this Memorandum.

         I. Factual Background

         Plaintiff indicates that in 2009 he was convicted of bank robbery and related offenses in the Circuit Court for Baltimore County. He was sentenced to 25 years' incarceration without the possibility of parole. On February 23, 2015, his petition for post-conviction relief was granted and his conviction vacated. ECF 1, p. 7.

         On May 21, 2015, three months after he was granted post-conviction relief, he alleges he improperly remained confined in state prison at the Maryland Correctional Training Center (“MCTC”). Id. He states that his post-conviction counsel contacted Deputy State's Attorney Glennon requesting that he be transferred to the County Detention Center. Id., p. 8. Plaintiff indicates his belief that since he was then awaiting trial it was improper to continue to house him in the Division of Correction. Id.

         While housed at MCTC, he fell from his bunk sustaining a serious injury to his right elbow. Id. Plaintiff states that he was “falsely diagnosed with a bone spur: and later taken to a local hospital where he was diagnosed with a torn tricep [sic] and blood clot.” ECF 6, p. 3. He states that it took five months to have his injury treated and he underwent two surgeries to repair his arm. The first was performed on March 1, 2016, at Bon Secours hospital. ECF 1, p. 8. Plaintiff states his surgery was “botched.” Id. Plaintiff indicates he was denied proper postoperative medical care by the named medical defendants who failed to follow the discharge instructions of his surgeon. Id., p. 8. Rather, Physician Assistant Lori Slavick removed the stitches. ECF 6, p. 3. The removal of the stitches/staples left a hole in his right elbow. He claims that as a result he has suffered excruciating pain, draining, infection, and burning from the ulcer that developed at the surgical site. ECF 1, pp. 8-9. He claims he was tortured by the physical therapist and received second-degree burns on his biceps. ECF 6, p. 3. He also claims he was burned by Dr. Saleem Muhammed. Id.

         Lloyd is currently housed at MCTC. ECF 21-2 (Declaration of Tom Nittinger, Case manager, ¶ 4). After plaintiff's successful post-conviction hearing, he was remanded to the custody of the Division of Correction (“DOC”). Id.; Id, p. 3 (docket entries). He was returned to Baltimore County for his retrial. Id., pp. 6 & 7. Nittinger avers that the DOC has authority to hold inmates in its custody based upon the authority of the writ it receives from the courts. Id., ¶ 3.

         II. Medical Defendants

         Pending is Medical Defendants' motion to strike plaintiff's correspondence (ECF 37) as being an improper surreply. ECF 38. Given plaintiff's self-represented status, and the denial without prejudice of Medical Defendants' dispositive motion, the motion shall be denied.

         Also pending is plaintiff's “Supplement to Amended Complaint.” ECF 39. Plaintiff indicates that on June 29, 2017, he was returned to Bon Secours Hospital for additional surgery to treat his elbow injury. He states that once again his post-operative orders were not followed and that Contah Nimely continued to provide follow-up care, despite the conflict of interest that exists due to plaintiff's suing Nimely in this case. Additionally, plaintiff alleges that he was directed to return to the surgeon two weeks after his surgery but was not returned. Instead, staff at the prison removed his stitches. Plaintiff maintains that this is the same type of conduct that caused him injury after his initial surgery to repair his elbow. He further maintains that his follow-up treatment with the surgeon was scheduled for August, weeks after the surgeon directed he return for follow-up care. Id.

         Medical Defendants oppose plaintiff's amending the complaint (ECF 40) maintaining that any amendment would be a futility. Medical Defendants argue that his new surgery is unrelated to the claims in the initial complaint. Id. The court disagrees. Plaintiff's initial complaint concerned his claim that he was denied proper medical care for his elbow injury, including proper post-surgical care. The June 2017 surgery appears to be a continued effort to treat plaintiff's elbow injury, which was apparently not resolved by the first surgery, and represents ongoing treatment of the injury central to the initial complaint. As such, plaintiff shall be permitted to amend the complaint to include these claims.

         Medical Defendants indicate that if the court grants the amendment to the complaint they will require additional time to obtain supplemental medical records and communicate with providers regarding plaintiff's course of treatment. Id. In light of the foregoing, Medical Defendants' dispositive motion shall be denied without prejudice, subject to renewal. Medical Defendants shall renew their dispositive motion within 45 days of the date of this Memorandum and Order.

         II. Defendants Glennon and Morgan

         A. ...

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