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Greene v. Wexford Health Inc.

United States District Court, D. Maryland

January 3, 2018




         In 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 unopposed.[2]

         This 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.


         Self-represented 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.[3] 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).

         Greene 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.

         Greene 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.

         On 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).

         Greene 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 prescribed.

         On December 2, and December 12, 2016, [4] 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.



         Under 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).

         In 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.


         Summary 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 original).

         “A 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.

         A court 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).


         To 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 (1988).


         The 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 Procedure.

         The 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 supervisory liability.

         II. ...

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