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McKinnon v. Gilmore

United States District Court, D. Maryland

April 30, 2018

ANTHONY McKINNON, # 369-987, 2106047 Plaintiff,


          Paul W. Grimm, United States District Judge

         Plaintiff Anthony McKinnon is incarcerated at Western Correctional Institution (“WCI”) in Cumberland, Maryland. Am. Compl. 1, ECF No. 4. He alleges that he submitted multiple requests to see medical personnel at WCI, and after they were “disregarded or ignored, ” his finger “became infected and swollen.” Id. Plaintiff filed this litigation pursuant to 42 U.S.C. § 1983 for alleged Eighth Amendment violations by Registered Nurse Janice Gilmore, Registered Nurse Practitioner Beverly McLaughlin, Wexford Health Sources, Inc.[2] and “Dr. Agrawal, ” an outside physician. Pending is a Motion to Dismiss or, in the alternative, for Summary Judgment filed by Registered Nurse Janice Gilmore, Registered Nurse Practitioner Beverly McLaughlin, and Wexford Health Sources, Inc. Defs.' Mot. 17. On November 21, 2017, the Clerk of the Court informed Mr. McKinnon that these Defendants filed a dispositive motion; that he had seventeen days in which to file a written opposition to the motion; and that if he failed to respond, summary judgment could be entered against him without further notice. See ECF No. 18; Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975). Mr. McKinnon has not responded. A hearing is unnecessary. See Loc. R. 105.6 (D. Md. 2016). Defendants' motion, construed as a motion for summary judgment, will be granted.[3] Plaintiff's Eighth Amendment claims for deliberate indifference against Defendants RN Gilmore, RNP McLaughlin, and Wexford Health Sources, Inc. are dismissed with prejudice. Mr. McKinnon has failed to state a claim against Dr. Agrawal for an Eighth Amendment violation, and therefore, that claim is dismissed without prejudice. To the extent Mr. McKinnon stated a claim under state law against Dr. Agrawal, I decline to exercise supplemental jurisdiction and that claim also is dismissed without prejudice.

         Standard of Review

         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 also 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, 251-52 (1986). Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id. A “genuine” dispute of material fact is one where the conflicting evidence creates “fair doubt”; wholly speculative assertions do not create “fair doubt.” Cox v. Cty. of Prince William, 249 F.3d 295, 299 (4th Cir. 2001); see also Miskin v. Baxter Healthcare Corp., 107 F.Supp.2d 669, 671 (D. Md. 1999). The substantive law governing the case determines what is material. See Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001). A fact that is not of consequence to the case, or is not relevant in light of the governing law, is not material. Id.; see also Fed. R. Evid. 401 (defining relevance). “In ruling on a motion for summary judgment, this Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party.” Downing v. Balt. City Bd. of Sch. Comm'rs, No. RDB 12-1047, 2015 WL 1186430, at *1 (D. Md. Mar. 13, 2015) (citing Scott v. Harris, 550 U.S. 372, 378 (2007)).

         There is no genuine dispute of material fact if the nonmoving party fails to make a sufficient showing on an essential element of his case as to which he would have the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, on those issues for which the nonmoving party has the burden of proof, it is his responsibility to confront the summary judgment motion with an affidavit that “set[s] out facts that would be admissible in evidence” or other similar facts that could be “presented in a form that would be admissible in evidence” showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(c)(2), (4); see also Ridgell, 2012 WL 707008, at *7; Laughlin, 149 F.2d at 260-61.

         Defendants have attached to their motion an affidavit and verified Medical Records. Med. R., ECF No. 17-4; Joubert Aff., ECF No. 17-5. In contrast, Mr. McKinnon has not filed an opposition or an affidavit and his allegations are contained in an unverified complaint. Because Plaintiff's Complaint is not verified, its factual assertions may not be considered in opposition to Defendants' motion. See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991); Fed.R.Civ.P. 56(c)(1)(A); see also Abdelnaby v. Durham D & M, LLC, No. GLR-14-3905, 2017 WL 3725500, at *4 (D. Md. Aug. 29, 2017) (awarding summary judgment for the defendants, because the plaintiff could not “create a genuine dispute of material fact ‘through mere speculation, '” and “[t]hus, the Court [wa]s left with a record that [wa]s bereft of evidence supporting any of Abdelnaby's arguments”) (quoting Beale v. Hardy, 769, F.2d 213, 214 (4th Cir. 1985)).


         On January 16, 2017, Mr. McKinnon was seen by Registered Nurse Stacie Mast, and was complaining of a swollen pointer finger on his left hand. Med. R. 2. He stated that his finger “just swelled up one day” and that he had not hurt it. Id. McKinnon was referred to a provider for further evaluation. Id. On January 26, 2017, RNP McLaughlin examined Mr. McKinnon and ordered an x-ray to be taken of his finger and a follow-up appointment in a week.[4] Id. at 4-5. RNP McLaughlin and Dr. Akal next examined Mr. McKinnon on February 23, 2017, and because they were concerned that the growth on his finger may have been malignant, they referred Mr. McKinnon for a consultation regarding a possible biopsy and excision of the mass on his finger. Id. at 9-10. Mr. McKinnon was provided an antibiotic; however it did not provide relief. Id. at 13.

         Mr. McKinnon was examined by Dr. Agrawal, an outside surgeon, on March 20, 2017, and diagnosed the condition as “probably” being a tumor. Id. Dr. Agrawal noted that “removal of [the] tumor may compromise the finger movement.” Id. Based on Dr. Agrawal's recommendation, Mr. McKinnon was referred to a hand specialist, which was approved on April 20, 2017. Id. at 16, 18-19. On May 17, 2017, Mr. McKinnon informed Physician Assistant Terri Pryor that Tramadol[5] had been “somewhat effective for pain in [his] finger” and PA Pryor noted that Mr. McKinnon should continue using Tramadol at least until he was seen by a hand specialist. Id. at 22-23.

         On May 25, 2017, McKinnon saw Doctor Emme Chapman-Jackson, a hand specialist, at Western Maryland Health System. Id. at 24. Dr. Chapman-Jackson diagnosed the mass as an inclusion cyst and recommended removing it under local anesthesia. Id. Mr. McKinnon stated that he was too anxious for local anesthesia and requested he be sedated for the procedure. Id. Surgery was approved on June 8, 2017. Id. at 28. He received a pre-operative physical on June 19, 2017, and was cleared for surgery. Id. at 31-32. After his surgery on July 10, 2017, Mr. McKinnon was admitted to the prison infirmary for observation and discharged on July 11, 2017. Id. at 34-42. He received help with dressing the site and was given pain medications for two-weeks. Id. at 43-45. Orthopedic surgeon Roy Carls examined Mr. McKinnon on August 31, 2017, and observed that Mr. McKinnon had good hand function and a well healed but sensitive scar. Id. at 52.


         Claims Against Defendants Janice Gilmore and Beverly McLaughlin The Eighth Amendment prohibits “unnecessary and wanton infliction of pain” by virtue of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173 (1976). “Scrutiny under the Eighth Amendment is not limited to those punishments authorized by statute and imposed by a criminal judgment.” De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003) (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)). In order to state an Eighth Amendment claim for denial of medical care, a plaintiff 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).

Deliberate indifference is a very high standard-a showing of mere negligence will not meet it . . . [T]he Constitution is designed to deal with deprivations of rights, not errors in judgments, even though such errors may have unfortunate consequences . . . To lower this threshold would thrust ...

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