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McCoy v. Wexford Health Sources, Inc.

United States District Court, D. Maryland

April 25, 2018

FRANKIE L. McCOY, SR., Plaintiff,
WEXFORD HEALTH SOURCES, INC., et al., Defendants.


          George L. Russell, III United States District Judge.

         THIS 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, [1] 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).[2] 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.


         McCoy 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).[4] 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).

         On June 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 prison.” (Id.).

         On 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).

         McCoy 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.[5] (Defs.' Reply Ex. A at 35, ECF No. 30-1).

         On 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).

         On 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.[6] (ECF No. 30).

         On May 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).


         A. Motion for Appointment of Counsel

         “A 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).

         As 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.

         B. Motions to Dismiss or, in the Alternative, Motions for Summary Judgment

         1. Standard of Review a.Motion to Dismiss

         “The 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).

         In 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 678.

         McCoy 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 marks omitted).

         b. Conversion to a Motion ...

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