United States District Court, D. Maryland
FRANKIE L. McCOY, SR., Plaintiff,
WEXFORD HEALTH SOURCES, INC., et al., Defendants.
L. Russell, III United States District Judge.
MATTER is before the Court on Defendants Wexford Health
Sources, Inc. (“Wexford”), Barbara Steele, Yonas
Sisay, M.D., Thomas Lehman, M.D., and Mary Rockefeller,
P.A.'s (collectively with Cheryl Foots,  the
“Medical Defendants”) Motion to Dismiss or, in
the Alternative, Motion for Summary Judgment (ECF No. 21) and
Foots' Motion to Dismiss or, in the Alternative, Motion
for Summary Judgment (ECF No. 35). Also pending before the
Court is Plaintiff Frankie L. McCoy, Sr.'s Motion for
Appointment of Counsel for Record (ECF No. 38). The Motions are
ripe for disposition, and no hearing is necessary.
See Local Rule 105.6 (D.Md. 2016). For the reasons
outlined below, the Court will grant Defendants' Motions
and deny McCoy's Motion.
is a physically impaired “chronic care inmate”
currently confined at the Maryland Correctional
Institution-Jessup (“MCI-J”) in Jessup, Maryland.
(Compl. at 1, 7, ECF No. 1). McCoy was prescribed a daily pain
medication, Ultram, for his severe neck and spinal stenosis
and herniated disc conditions, which cause leg pain that
radiates down his side and to his feet. (Id. at 7;
Temesgen Aff. ¶ 4, ECF No. 21-7). McCoy is also
prescribed Baclofen, to assist with managing his pain.
(Temesgen Aff. ¶ 4).
7, 2016, Kasahun Temesgen, M.D. saw McCoy for a scheduled
chronic care visit. (Id. ¶ 5). At that visit,
Dr. Temesgen renewed McCoy's prescriptions for Ultram and
Baclofen through October 7, 2016. (Id.). On July 18,
2016, Dr. Temesgen again saw McCoy for a scheduled chronic
care visit during which McCoy stated that he was receiving
his medications as prescribed. (Id. ¶ 6).
Notwithstanding his active prescription, McCoy was denied his
Ultram from August 28, 2016 through September 6, 2016.
(Compl. at 5-6). McCoy advised Steel, the Wexford
Administrator at MCI-J, Foots, the Appointment Clerk, and Dr.
Sisay that he was not receiving Ultram. (McCoy Decl. ¶
10, ECF 28-1). They “each told [him] that the MCIJ
Wexford Pharmacy did not have my Ultram in stock and that
they were not going to order it from another Wexford-operated
facility or from another pharmacy outside of the
September 5, 2016, McCoy submitted a sick-call slip informing
medical personnel that he was not receiving his Ultram.
(Temesgen Aff. ¶ 8; Pl.'s Medical Records
[“Med. Recs.”] at 7, ECF No. 23). The next day, a
nurse practitioner saw McCoy. (Temesgen Aff. ¶ 9). The
nurse practitioner contacted CorrectRx, Department of Public
Safety and Correctional Services' private pharmacy
contractor, to find out why McCoy was not receiving his
Ultram despite having a prescription for it. (Id.).
It was discovered that CorrectRx refused to fill McCoy's
June 7, 2016 prescription for Ultram because it did not have
a physical signature. (Id. ¶ 10; Med. Recs. at
11). CorrectRx did not, however, inform any of McCoy's
prescribing medical providers that McCoy was being denied his
Ultram due to a missing signature. (Temesgen Aff. ¶ 10).
On September 7, 2016, after the paperwork issue was resolved,
McCoy began receiving his Ultram as prescribed again.
(Id. ¶ 9).
also suffers from neuropathy in his legs and feet, which
cause sensations to be diminished due to pain, numbness, and
tingling. (Id. at 6). For his condition, McCoy
requires “new custom high top orthopedic shoes”
and that he “continue with hydrotherapy.”
(Id.). A pair of McCoy's orthopedic shoes are
worn out and have holes in the bottoms which caused him to
suffer two falls, one in January of 2016 and one in February
of 2016. (Id. at 7). As a result of the falls, McCoy
injured his face, jaw, left shoulder, and elbow, and
exacerbated his chronic conditions. (Id.). In late
June or early July 2016, McCoy received his orthopedic
shoes. (Defs.' Reply Ex. A at 35, ECF No.
November 7, 2016, McCoy sued Defendants. (ECF No. 1). In his
Complaint, McCoy alleges violations of 42 U.S.C. § 1983
(2018), the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq.
(2018), and the Rehabilitation Act (“RA”), 29
U.S.C. § 701 et seq. (2018). (Id. at
6). McCoy seeks compensatory and punitive damages.
(Id. at 5).
March 13, 2017, the Medical Defendants filed their Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment.
(ECF No. 21). McCoy filed an Opposition on April 3, 2017.
(ECF No. 28). On April 19, 2017, the Medical Defendants filed
a Reply. (ECF No. 30).
3, 2017, the Court issued an Order directing the Clerk to add
Cheryl Foots as a Defendant. (May 3, 2017 Order, ECF No. 31).
On June 5, 2017, Foots filed a Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment. (ECF No. 35). McCoy
filed an Opposition on June 21, 2017. (ECF No. 37). On June
23, 2017, Foots filed a Reply. (ECF No. 39).
Motion for Appointment of Counsel
pro se prisoner does not have a general right to counsel in a
§ 1983 action.” Evans v. Kuplinski, 713
Fed.Appx. 167, 170 (4th Cir. 2017) (citing Whisenant v.
Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated
on other grounds by Mallard v. U.S. Dist. Ct., 490 U.S.
296, 298 (1989)). A federal district court judge's power
to appoint counsel under 28 U.S.C. § 1915(e)(1) is
discretionary, and an indigent claimant must present
“exceptional circumstances.” See id.;
Miller v. Simmons, 814 F.2d 962, 966 (4th Cir.
1987). Exceptional circumstances exist where a “pro se
litigant has a colorable claim but Fed.R.Civ.P. 15(2). McCoy
does not have Defendants' consent, and therefore must
seek leave of the Court. Although the Court must freely give
leave to amend, the Court may deny a party leave to amend
where the proposed amendment would be prejudicial to the
opposing party, the moving party has acted in bad faith, or
the amendment would be futile. See Equal Rights Ctr. v.
Niles Bolton Assoc., 602 F.3d 597, 603 (4th Cir. 2010).
A proposed amendment is prejudicial to the opposing party if
it is belated and would change the nature of the litigation.
Id. at 604. The allegations McCoy asserts in his
amendment are wholly unrelated to the claims raised in this
case. Thus, the Court concludes that granting McCoy leave to
amend would prejudice Defendants. Accordingly, the Court
denies McCoy's attempt to amend his Complaint. lacks the
capacity to present it.” See Whisenant, 739
F.2d at 163 (holding that 28 U.S.C. § 1915 does not
authorize compulsory appointment of counsel).
McCoy has previously been advised, after careful
consideration of his motions and previous filings, the Court
concludes that he has demonstrated the wherewithal to either
articulate the legal and factual basis of his claims himself
or secure meaningful assistance in doing so. In addition, the
issues pending before the Court are not unduly complicated.
The Court, therefore, concludes that no exceptional
circumstances exist that would warrant the appointment of an
attorney to represent McCoy under § 1915(e)(1).
Accordingly, the Court will deny McCoy's Motion.
Motions to Dismiss or, in the Alternative, Motions for
Standard of Review a.Motion to
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint, ” not to “resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” King v.
Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting
Edwards v. City of Goldsboro, 178 F.3d 231, 243-44
(4th Cir. 1999)). A complaint fails to state a claim if it
does not contain “a short and plain statement of the
claim showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), or does not “state a claim to
relief that is plausible on its face, ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Twombly,
550 U.S. at 555). Though the plaintiff is not required to
forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each
element. Goss v. Bank of Am., N.A., 917 F.Supp.2d
445, 449 (D.Md. 2013) (quoting Walters v. McMahen,
684 F.3d 435, 439 (4th Cir. 2012)), aff'd sub
nom., Goss v. Bank of Am., NA, 546 Fed.Appx.
165 (4th Cir. 2013).
considering a Rule 12(b)(6) motion, a court must examine the
complaint as a whole, consider the factual allegations in the
complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff. Albright v.
Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm'rs of Davidson Cty., 407 F.3d 266, 268 (4th
Cir. 2005) (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). But, the court need not accept unsupported or
conclusory factual allegations devoid of any reference to
actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions
couched as factual allegations, Iqbal, 556 U.S. at
filed his Complaint pro se. Pro se pleadings are liberally
construed and held to a less stringent standard than
pleadings drafted by lawyers. Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)); accord Brown v. N.C. Dep't
of Corr., 612 F.3d 720, 722 (4th Cir. 2010). Pro se
complaints are entitled to special care to determine whether
any possible set of facts would entitle the plaintiff to
relief. Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). But
even a pro se complaint must be dismissed if it does not
allege “a plausible claim for relief.”
Forquer v. Schlee, No. RDB-12-969, 2012 WL 6087491,
at *3 (D.Md. Dec. 4, 2012) (citation and internal quotation
Conversion to a Motion ...