United States District Court, D. Maryland
CARLOS A. GREENE, Plaintiff
WEXFORD HEALTH SOURCES, INC., DEPARTMENT OF CORRECTIONS, KIMBERLY R. MALIN, R.N. JASON CLEM, M.D. FLORENCE D. ENOCH, R.N. DR. MATERA, WARDEN FOXWELL, SGT. MURI,  EXECUTIVE DIRECTOR RUSSELL A. NEVERDON, Defendants
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
response to Carlos A. Greene's civil rights complaint,
Defendants the Department of Corrections, Warden Foxwell, and
Executive Director Russell A. Neverdon (collectively the
“State Defendants”) filed a Motion to Dismiss or
in the Alternative for Summary Judgment. (ECF 13). Defendants
Wexford Health Sources, Inc. (“Wexford”),
Kimberly R. Malin, R.N., Jason Clem, M.D., Florence D. Enoch,
R.N., Paul Matera, M.D., and Ruth Pinkney, P.A.
(collectively, the “Medical Defendants”) also
filed a Motion to Dismiss or in the Alternative for Summary
Judgment. (ECF 20). Defendants' dispositive motions are
Court finds no need for a hearing. See Local Rule
105.6 (D. Md. 2016). For reasons to follow, Defendants'
Motions (ECF 13, 20) ARE GRANTED.
plaintiff Carlos Greene is incarcerated at Eastern
Correctional Institution (“ECI”) in Westover,
Maryland. On April 27, 2017, Greene filed this lawsuit
pursuant to 42 U.S.C. §1983, alleging that Defendants
acted with deliberate indifference to his medical needs by
failing to provide him pain medication and administer his eye
drops after he had ophthalmic surgery for
glaucoma. Greene seeks compensatory and punitive
damages from Wexford and the Department of Corrections and
asks for unspecified sanctions against the individual Medical
Defendants (ECF 1, 9).
underwent surgery for glaucoma at Johns Hopkins'
Hospital's Wilmer Eye Institute (“Hopkins”)
on October 28, 2016. Greene was discharged the same day and
admitted to the infirmary at Jessup Correctional Institution
for observation and treatment. Greene returned to his housing
unit at ECI on November 4, 2016.
claims that he was not seen by a medical provider until
November 9, 2016 when he informed Ruth Pinkney, PA that he
was in pain and needed assistance taking his eye drops. (ECF
9 at 1-2). Greene explains that he needed help with his eye
drops because he cannot see or feel. (ECF 1 at 2).
Greene's cell mate was helping him take the eye drops,
but no longer wanted to assist him. Id.
November 11, 2016, Greene informed Sheila Kerpelman, N.P.
that he was in pain and missing doses of his eye drops due to
inconsistent administration by his cell mate. Greene was
readmitted to the ECI infirmary. On November 14, 2016, Jason
Clem, M.D. discharged Greene from the infirmary to his
housing unit. According to Greene, Clem discharged him
because the bed space was needed for others, “receiving
eye drops wasn't serious enough” and Greene's
cell mate could assist him. (ECF 1 at 2; ECF 9 at 2). Greene
maintains he was denied assistance with his medication from
November 14, 2016 until November 23, 2016. Greene asserts
that Clem “kicked” him out of the infirmary on
November 14, 2016 and discontinued his pain medication from
November 28, 2016 to December 13, 2016. (ECF 9 at 4). Greene
claims his pain medication was discontinued on November 28,
2016, which caused him to suffer pain until December 24,
2016. He claims that on January 6, 2017, medical staff
stopped assisting Greene with his eye drops. (ECF 1, 9).
told his physician at Hopkins, Dr. Thomas Vincent Johnson,
III, that he was not receiving his prescribed eye drops. (ECF
20-3) Johnson said he would write a note to ECI medical
providers that Greene needed to take Prednisolone drops as
December 2, and December 12, 2016,  Greene informed Sarah
Johnson, R.N. and Bruce Ford, P.A., respectively, about his
need for eye drops and his pain concerns. (ECF 20-3 at 101,
103). Johnson and Ford advised they would contact Clem to
renew Greene's medications. Greene faults Clem for
failing to renew his pain medication or eye drops. Greene
also complains he was never scheduled for a recommended
post-operative follow-up. (ECF 9 at 3, 20-3 at 16). Further,
Greene claims that on January 6, 2017, Clem and Kimberly
Malin, R.N. refused him medical care and withheld his eye
drops even after Greene requested them so that he could ask
his cellmate for assistance. Notably, Greene raises no
specific allegations against the State Defendants.
MOTION TO DISMISS
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) of the
Federal Rules of Civil Procedure authorizes the dismissal of
a complaint if it fails to state a claim upon which relief
can be granted. Fed.R.Civ.P. 12(b)(6). The purpose of Rule
12(b)(6) is “to test the sufficiency of a complaint and
not to resolve contests surrounding the facts, the merits of
a claim, or the applicability of defenses.” Presley
v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006). To satisfy Rule 8(a)(2), a complaint need not include
“detailed factual allegations.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). However, a plaintiff
must plead more than bald accusations or mere speculation.
Twombly, 550 U.S. at 555. A complaint must set forth
“enough factual matter (taken as true) to
suggest” a cognizable cause of action, “even
if... [the] actual proof of those facts is improbable and ...
recovery is very remote and unlikely.” Id. at
556 (internal quotations omitted).
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “draw all reasonable
inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011);
see Hall v. DirectTV, LLC, 846 F.3d 757, 765 (4th
Cir. 2017). Further, a pro se plaintiff's pleadings are
“to be liberally construed” and are “held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007); see Alley v. Yadkin County Sheriff Dept.,
No. 17-1249, 698 Fed .Appx. 141, 2017 WL 4415771 (4th Cir.
Oct. 5, 2017). However, even a pro se litigant's
complaint must be dismissed if it does not allege a
“plausible claim for relief.” Iqbal, 556
U.S. at 679.
judgment is governed by Fed.R.Civ.P. 56(a) which provides
that “[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, explaining that “[b]y 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. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
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 Club, 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
her favor without weighing the evidence or assessing the
witness' 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 defenses from proceeding to
trial.” Bouchat, 346 F.3d at 526.
must liberally construe pleadings filed by pro se litigants
to allow them to fully develop potentially meritorious cases.
See Erickson, 551 U.S. at 94; Cruz v. Beto,
405 U.S. 319 (1972). However, a court cannot assume the
existence of a genuine issue of material fact where none
exists. Fed.R.Civ.P. 56(c).
proceed under 42 U.S.C. § 1983, a plaintiff must allege
a violation of a federal constitutional right or a right
secured by federal law. Baker v. McCollan, 443 U.S.
137, 140 (1979). To state a claim under § 1983, a
plaintiff must: 1) “allege the violation of a right
secured by the Constitution and laws of the United
States”; and 2) “show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
State Defendants move for dismissal of the claims against
them, accurately noting that Plaintiff names them as
Defendants, but fails to allege how they violated his
constitutional rights or federal law. Because the Complaint
makes no specific allegations against the Department of
Correction, Warden Foxwell, and Executive Director Neverdon,
the claims against them will be dismissed with prejudice
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Court takes note that the Department of Correction, which is
a unit of the Department of Public Safety and Correctional
Services, is not a “person” amenable to suit
under 42 U.S.C. § 1983 and is entitled to dismissal of
the claims against it on this ground as well. See Will v.
Michigan Department of State Police, 491 U.S. 58 (1989),
. Further, for liability to exist in a §1983 case, the
Defendants must have personally participated in the alleged
violation or be culpable under principles of supervisory
liability. See Shaw v. Stroud, 13 F.3d 791, 799 (4th
Cir. 1994); Vinnege v. Gibbs, 550 F.2d 926, 928 (4th
Cir. 1977). Greene fails to allege that Defendants Foxwell
and Neverdon were personally involved in his medical care
after eye surgery or are otherwise culpable based on