United States District Court, D. Maryland
W. GRIMM, UNITED STATES DISTRICT JUDGE.
Enow is incarcerated at Eastern Correctional Institution
(ECI) in Westover, Maryland. This Memorandum will consider
three of his cases, all filed after he was assigned three
strikes under the Prisoner Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(g). In the first
two cases, Enow v. Baucom, et al., No. PWG-16-4042,
and Enow v. Foxwell, et al., No. PWG-17-850,
complaints asserted the imminent danger exception to §
1915(g), but a number of his claims did not satisfy the
exception and were dismissed without prejudice, subject to be
refiled with the full fee. What remain in Baucom,
PWG-16-4042 are his claims regarding inadequate medical
treatment for blurred vision and a concussion. Now pending in
that case are Enow's summary judgment motion and the
defendants' motions to dismiss or, in the alternative,
for summary judgment, which I will decide in defendants'
favor because the majority of the defendants cannot be liable
on the facts as pleaded, and the undisputed facts show that
the remaining defendant, Ben Oteyza, M.D., was not
deliberately indifferent to Enow's serious medical needs.
Foxwell, PWG-17-850, what remain are Enow's
claims that his psychotropic medication was discontinued and
that he is suffering from inadequate ventilation. Now pending
in Foxwell, PWG-17-850, are the Defendants'
motions to dismiss or, in the alternative, for summary
judgment. I will dismiss the claims against Warden Ricky
Foxwell but deny Defendant Talmadge Reeves, M.D.'s motion
without prejudice to filing a supplemental motion to address,
if he can, the issues of disputed fact that he failed to
address in his motion, which precluded resolution of the
claims against him on summary judgment.
third case, Enow v. Foxwell, et al., No.
PWG-17-2312, Enow asserts that he is viewed by other inmates
as a government informer, and, as a consequence, his life is
in danger. He once again invokes the imminent danger
exception to § 1915(g). Now pending are Enow's
Motion for a Temporary Restraining Order and Preliminary
Injunction and “Motion for Supplemental Evidence in
Opposition to Defendant's Order to Show Cause to
Plaintiff's Motion for a Preliminary Injunction, ”
both of which I will deny because Enow has not shown either a
likelihood of irreparable harm if the motion is not granted
or a likelihood of success on the merits. And, because only a
subset of his numerous claims in that case actually allege
imminent danger, I will direct Defendants to file an answer
or dispositive motion only with regard to those claims.
“THREE STRIKES” RULE
a frequent filer, with over a dozen unsuccessful cases in
this Court. See Appendix (chart of prior cases).
Enow's multiple case filings impose a significant burden
on both the Clerk's office and the Court, thereby earning
him three strikes under the PLRA. See ECF No. 10 in
Enow v. Feinstein, et al., No. PWG-15-3348
(assigning Enow a third “strike” under §
1915(g)) Consequently, he is barred from filing civil actions
unless he pays the filing fee or demonstrates that he is in
imminent danger of serious physical injury. 28 U.S.C. §
1915(g). Undeterred by the application of the PLRA, Enow has
continued to file civil lawsuits, such as those considered
here, and only a small subset of the claims he has alleged
have been found sufficient to proceed under the standard set
forth under § 1915(g). See Enow v. Baucom, et
al., No. PWG-16-3553 (D. Md.) (dismissed for failure to
address or satisfy “imminent danger” exception to
§ 1915(g)); Enow v. Green, et al., No.
PWG-16-3554 (D. Md.) (dismissed for failure to address or
satisfy “imminent danger” exception); Enow v.
Green, et al., No. PWG-16-3917 (D. Md.)
(dismissed for failure to pay full filing fee and amend
complaint after court determined no claims satisfied imminent
danger exception); Enow v. Baucom, et al., No.
PWG-16-4042 (D. Md.) (all but two claims dismissed without
prejudice for failure to satisfy “imminent
danger” exception); Enow v. Wolfe, et al., No.
PWG-17-341 (D. Md.) (claims satisfied “imminent
danger” exception); Enow v. Foxwell, et al.,
No. PWG-17-850 (D. Md.) (claims of past harm dismissed;
claims suggesting imminent danger proceeding); Enow v.
Foxwell, et al., No. PWG-17-2312 (D. Md.) (claims
satisfied “imminent danger”
exception). It is evident that he is attempting to
evade the filing fee by claiming, without support, that his
claims involve an imminent threat of serious physical injury.
As this Court has previously warned, Enow's “serial
unsubstantiated claims of physical injury will not go
unnoticed and any future cases filed by Enow will be
evaluated in light of what is pleaded, but also in light of
all the unsubstantiated claims that he has filed to
date.” Order 2, ECF No. 32 in Enow v. Dovey,
No. PWG-16-615 (D. Md.).
Enow's long, prolix, and repetitive filings impose
additional burdens on this Court. For example, Enow's
complaint in Baucom, PWG-16-4042, one of the cases
now under review, presents claims that have already been
raised in Enow v. Baucom, PWG-16-3553. Likewise, in
four different cases, Enow presented the same claim that he
was assaulted by correctional officers on April 18, 2016
while on his way to an adjustment hearing. See
Baucom, PWG-16-3553; Green, PWG-16-3554;
Green, PWG-16-3917; Wolfe, PWG-17-341.
Further, Enow's complaints are often internally
repetitive, unnecessarily reiterating the facts of a given
case in multiple filings. Compare Compl. 6-11, ECF
No. 1 in Foxwell, PWG-17-850, with
Pl.'s Mem. in Supp. of Opp'n to Foxwell Mot. 2-6, ECF
No. 20-1 in Foxwell, PWG-17-850; Compare
Compl. 6-17, ECF No. 1 in Dovey, PWG-16-615,
with Pl.'s Aff. in Supp. of Opp'n 1-5, 9-16,
ECF No. 25-3 in Dovey, PWG-16-615 (making
substantially similar statements, but in slightly different
order). He often restates allegations from his verified
complaint and/or supplements to the complaint in affidavits.
Similarly, he includes copies of the same exhibits multiple
times during the pendency of a single action. E.g.,
Med. Recs. 1-26, ECF No. 1-2, and Med. Recs., ECF No. 27-2 in
Baucom, PWG-16-4042 (substantially the same medical
records accompanying Complaint and Opposition to Motion to
history of burdensome and abusive filings prompted this Court
on November 27, 2017, to impose certain limits on his filings
in all his current and future civil, non-habeas cases:
Enow's filings may be no more than 10 single sided pages
unless he first obtains the Court's permission; he may
verify his complaints but may not accompany his pleadings
with his own affidavits; his exhibits may not exceed 25 pages
unless permitted by the Court; and, in the future, if he
files another claim that does not satisfy the imminent danger
standard at 28 U.S.C. § 1915(g), whether accompanied by
actual claims of imminent of danger or not, he will be
required to show cause why he should be denied the privilege
of filing any forma pauperis proceedings. Order, ECF No. 38
in Baucom, PWG-16-4042. While these procedures have
lessened the burdensomeness of Enow's vexatious filings,
they have not done so sufficiently to deter him from abusing
the imminent danger exception to § 1915(g) of the PLRA.
For that reason I will impose new restrictions on his filing
of new lawsuits that seek to invoke this exception, designed
to enable the Court to determine more readily whether his
claims of imminent danger are plausible, or, as has been the
case so frequently in the past, without merit.
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint and draw all reasonable inferences [from those
facts] in favor of the plaintiff.” 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). However, even a pro se litigant's complaint must
be dismissed if it does not allege a “plausible claim
for relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
“plaintiff's obligation to provide the grounds of
his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (brackets and internal
quotation marks omitted). Nonetheless, the complaint does not
need “detailed factual allegations” to survive a
motion to dismiss. Id. at 555. Instead, “once
a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in
the complaint.” Id. at 563. To survive a
motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Iqbal, 556 U.S. at 677-78 (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. “But where the well-pleaded facts do not permit
the court to infer more than the mere possibility of
misconduct, the complaint has alleged -- but it has not
‘show[n]' -- ‘that the pleader is entitled to
relief.'” Id. at 679 (quoting Fed.R.Civ.P.
faced with cross-motions for summary judgment, the court must
review each motion separately on its own merits.”
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.
2003). Summary judgment is proper when the moving party
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);
see Baldwin v. City of Greensboro, 714 F.3d 828, 833
(4th Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585-87 & n.10 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a
motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary
materials submitted must show facts from which the finder of
fact reasonably could find for the party opposing summary
UNDER § 1983
Baucom, PWG-16-4042, and Enow, PWG-17-850,
Enow brings § 1983 claims of deliberate indifference to
his serious medical needs, in violation of the Eighth
Amendment, against his medical providers and other
defendants. All but the medical providers contend that
Enow fails to state a claim against them because he does not
allege their personal involvement in his medical care.
1983 requires a showing of personal fault, whether based upon
the defendant's own conduct or another's conduct in
executing the defendant's policies or customs. See
Monell v. New York City Dep't of Social Servs., 436
U.S. 658, 690 (1978); West v. Atkins, 815 F.2d 993,
996 (4th Cir. 1987), rev'd on other grounds, 487
U.S. 42 (1988) (no allegation of personal involvement
relevant to the claimed deprivation); Vinnedge v.
Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (in order for
an individual defendant to be held liable pursuant to §
1983, it must be “affirmatively shown that the official
charged acted personally in the deprivation of the
plaintiff's rights”) (quoting Bennett v.
Gravelle, 323 F.Supp. 203, 214 (D. Md. 1971),
aff'd, 451 F.2d 1011 (4th Cir. 1971)). Moreover,
an individual cannot be held liable under § 1983 under a
theory of respondeat superior. See Monell, 436 U.S. at
690; Love-Lane v. Martin, 355 F.3d 766, 782 (4th
Cir. 2004) (no respondeat superior liability under §
1983). Thus, to establish § 1983 liability, a plaintiff
must show that a defendant was personally involved in the
alleged deprivation of his constitutional rights,
Vinnedge, 550 F.2d at 928-29, or establish the
defendant's liability as a supervisor, see Shaw v.
Stroud, 13 F.3d 791, 799 (4th Cir. 1994) Supervisory
liability may attach under 42 U.S.C. § 1983 if (1) the
defendant had actual or constructive knowledge that a
subordinate was engaged in conduct that posed a pervasive
risk of a constitutional injury; (2) the defendant's
response to that knowledge was so inadequate as to show
deliberate inference to or tacit authorization of the alleged
offensive practices; and (3) there was an affirmative causal
link between defendant's inaction and the alleged
constitutional injury. Shaw, 13 F.3d at 799.
Eighth Amendment prohibits cruel and unusual punishment. U.S.
Const. amend. VIII. To prevail on an Eighth Amendment claim
for denial of medical care, a prisoner must demonstrate that
the actions of the defendants or their failure to act
amounted to deliberate indifference to a serious medical
need. See Estelle v. Gamble, 429 U.S. 97, 106
(1976); Jackson v. Lightsey, 775 F.3d 170, 178 (4th
Cir. 2014). Deliberate indifference to a serious medical need
requires proof that, objectively, the inmate was suffering
from a serious medical need and that, subjectively, prison
staff were aware of the need for medical attention but failed
either to provide it or to ensure the needed care was
available. Farmer v. Brennan, 511 U.S. 825, 837
(1994). As the Fourth Circuit explained in Lightsey,
deliberate indifference “is a higher standard for
culpability than mere negligence or even civil recklessness,
and as a consequence, many acts or omissions that would
constitute medical malpractice will not rise to the level of
deliberate indifference.” 775 F.3d at 178. Therefore,
“[t]o show an Eighth Amendment violation, it is not
enough that an official should have known of a risk; he or
she must have had actual subjective knowledge of both the
inmate's serious medical condition and the excessive risk
posed by the official's action or inaction.”
subjective component requires “subjective
recklessness” in the face of the serious medical
condition. Farmer, 511 U.S. at 839-40. “True
subjective recklessness requires knowledge both of the
general risk, and also that the conduct is inappropriate in
light of that risk.” Rich v. Bruce, 129 F.3d
336, 340 n.2 (4th Cir. 1997). “Actual knowledge or
awareness on the part of the alleged inflicter . . . becomes
essential to proof of deliberate indifference ‘because
prison officials who lacked knowledge of a risk cannot be
said to have inflicted punishment.'” Brice v.
Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995)
(quoting Farmer, 511 U.S. at 844). If the requisite
subjective knowledge is established, an official may avoid
liability “if [he] responded reasonably to the risk,
even if the harm was not ultimately averted.”
Farmer, 511 U.S. at 844. Reasonableness of the
actions taken must be judged in light of the risk the
defendant actually knew at the time. Brown v.
Harris, 240 F.3d 383, 390 (4th Cir. 2001).
import here, “[a] prisoner's disagreement with
medical providers about the proper course of treatment does
not establish an Eighth Amendment violation absent
exceptional circumstances.” Lopez v. Green,
No. PJM-09-1942, 2012 WL 1999868, at *2-3 (D. Md. June 4,
2012) (citing Wright v. Collins, 766 F.2d 841, 849
(4th Cir. 1985)); see Wester v. Jones, 554 F.2d 1285
(4th Cir. 1979). Further, “any negligence or
malpractice on the part of . . . doctors in missing [a]
diagnosis does not, by itself, support an inference of
deliberate indifference.” Johnson v. Quinones,
145 F.3d 164, 166 (4th Cir. 1998). Without evidence that a
doctor linked presence of symptoms with a diagnosis of a
serious medical condition, the subjective knowledge required
for Eighth Amendment liability is not present. Id.
at 169 (actions inconsistent with an effort to hide a serious
medical condition refute presence of doctor's subjective
v. Baucom, et al., No. PWG-16-4042
initiated this case pursuant to 42 U.S.C. § 1983 by
filing a verified Complaint, ECF No. 1,  a Motion for
Leave to Proceed in Forma Pauperis, ECF No. 2, and a Motion
for a Temporary Restraining Order, ECF No. 3. I determined that
Enow's claims of inadequate medical treatment for blurred
vision and a concussion possibly posed imminent danger of
serious physical injury, especially in light of the fact he
is blind in one eye and suffering from ongoing headaches and
other ailments that he attributes to a purported concussion.
Order, ECF No. 5. I directed Defendants Wexford Health
Sources, Inc. (“Wexford”), and Ben Oteyza, M.D.
(collectively, the Medical Defendants) and Sharon Baucom,
M.D., Director of Clinical Services for the Maryland
Department of Public Safety and Correctional Services, and
Warden Kathleen Green (collectively, the State Defendants) to
respond to these specific claims. Id. As to the
other claims raised in the Complaint, none of which suggested
Enow was in imminent danger of serious physical injury, I
instructed Enow that he must pay the filing fee to pursue
them. Enow did not pay the filing fee; thus, his other claims
will not be considered here.
filed a Motion for Summary Judgment, ECF No. 14, along with a
Memorandum and an Affidavit in Support, both of which he
verified, ECF Nos. 14-3, 14-4. Thereafter the Medical
Defendants filed a Motion to Dismiss or, in the Alternative,
Cross-Motion for Summary Judgment and Opposition to
Enow's Motion. ECF No. 22. Enow and the Medical
Defendants fully briefed their cross-motions, ECF Nos. 14-3,
22-3, 27, 30, and both parties provided exhibits in support
of their positions, ECF Nos. 14-2, 14-4, 22-4, 22-5, 27-2.
Enow's oppositions are verified. The State Defendants
also filed a Motion to Dismiss or, in the Alternative, for
Summary Judgment, ECF No. 31, which the parties briefed, ECF
Nos. 31-1, 35, and for which both parties provided exhibits
in support of their positions, ECF Nos. 31-2, 31-3, 35-1. A
hearing is not necessary. See Loc. R. 105.6.
claims that on January 15, 2015, an ophthalmologist diagnosed
him with cataracts in both eyes and recommended that he
remain under medical supervision. Compl. 4, ¶¶
12-14, ECF No. 1. On March 5, 2015, a prison medical provider
referred him to the optometry department for an eye
examination for blurred vision in his left eye. Id.
On March 18, 2015, an optometrist prescribed eyeglasses for
him and scheduled him for a follow-up appointment. On April
20, 2015, an optometrist examined him and diagnosed him as
legally blind in his right eye. Id. at 4, ¶ 14.
He claims that on August 30, 2015, Dr. Alesha Spellman-Smith,
an optometrist, completed a hospital specialty service
request for Enow's ophthalmology consultation.
claims that he suffers recurring pain from his eye injury,
macular degeneration, blurry distance vision, eye fatigue,
light sensitivity, migraine headaches and watery, burning,
and itching eyes, and complains that he has not been provided
consultation with a physician qualified to assess and treat
his eye condition. Id. at 14-15, ¶ 15. He
alleges that he is in danger of permanent loss of vision in
both eyes. Of note, Enow does not allege that Dr. Oteyza
denied, hindered, or was otherwise involved in any decision
concerning a referral to an ophthalmologist. He generally
claims that medical records are not used to assist in
diagnosis. Id. at 11, ¶ 22.
also maintains that he suffered a concussion on November 19,
2015, when a fellow inmate struck him in the head with a hard
object, and has blackouts, constant cluster migraines
headaches, and neck and back pain as a result. Id.
at 6. He faults Dr. Oteyza for failing to order a CT scan or
MRI and for not referring him to a physician who specializes
in brain injury. Id. at 6. Enow asks for declaratory
relief and compensatory damages of $300, 000.
Medical Defendants argue that Enow does not raise any claims
against Wexford or specify any unconstitutional conduct by
Wexford. Enow only alleges that Wexford, pursuant to a
contract with the Division of Correction (“DOC”),
provided medical services for DOC prisoners and employed Dr.
Oteyza. Compl. 3, ¶¶ 5-6. As noted, Enow cannot
state a claim against Wexford based on the actions of its
employees under a theory of vicarious liability
(respondeat superior). See Monell, 436 U.S.
at 690; Love-Lane, 355 F.3d at 782.
opposition, Enow argues that Wexford is liable under the
doctrine of supervisory liability, but he does not provide
any factual substantiation. Pl.'s Opp'n 11. As noted,
supervisor liability may attach under § 1983 where a
supervisor has actual or constructive knowledge of a
subordinate's conduct that posed a pervasive risk of a
constitutional injury. See Shaw, 13 F.3d at 799. As
Enow fails to allege facts or provide exhibits or
documentation to show that Wexford had either actual or
constructive knowledge of any medical provider's alleged
deliberate indifference to Enow's medical needs, he fails
to state a claim against Wexford. For these reasons, the
claims against Wexford are dismissed. See id.
claims that Dr. Oteyza acted with deliberate indifference to
his serious medical needs regarding his concussion, thereby
providing him with constitutionally inadequate medical care
in violation of the Eighth Amendment. Compl. 7, ¶ 19. He
alleges that on November 19, 2015, he suffered a
concussion. Id. at 6, ¶ 19. When Enow
complained about resultant “blackouts, ” migraine
headaches, and neck and back pain on December 18, 2015, Dr.
Oteyza prescribed on 600 mg of Motrin and 500 mg of Roboxin
for muscle relaxation. Id. Enow asserts that Oteyza
ignored his request for an MRI or CT scan, and a consultation
referral to a medical specialist in brain injury. Enow takes
exception to Oteza's comments on the medical record ...