United States District Court, D. Maryland
W. Grimm, United States District Judge
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. 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. 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
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)).
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.
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)).
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. 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.
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 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.
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.
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