United States District Court, D. Maryland
K. Bredar, Chief Judge
before the court are a motion to dismiss or, in the
alternative, for summary judgment filed by defendant Bishop
(ECF No. 12), Robert Gary Moore's opposition (ECF No.
15), and a motion to dismiss or, in the alternative, for
summary judgment filed by defendants Nolan, Browning, Self,
and Wexford Health Sources, Inc. (medical defendants) (ECF
No. 21), Moore's opposition (ECF No. 23), and
the medical defendants' reply (ECF No. 26). In addition,
Moore has filed a motion to appoint counsel. ECF No. 7. Upon
review of the pleadings filed, the court finds a hearing in
this matter unnecessary. See Local Rule 105.6 (D.
Md. 2016). For the reasons stated below, defendants'
dispositive motions will be GRANTED.
Robert Gary Moore, an inmate currently confined at the North
Branch Correctional Institution (“NBCI”) in
Cumberland, Maryland, filed this complaint alleging that on
January 16, 2016, he complained to Nurse Sierra Nolan about
severe breathing problems and a knot on the back of his left
leg that had grown and was causing him severe pain. Moore
states that Nolan “delayed” his treatment by
telling him to submit a sick-call slip. He contends that his
conditions could have been fatal and Nolan failed to follow
proper protocols. ECF No. 1, p. 4.Moore alleges that the next
day he submitted a sick-call slip and administrative remedy
procedure (ARP) grievance. He claims that the sick-call slip
was destroyed,  but he was interviewed by Ryan Browning on
January 26, 2016. Moore contends that Browning informed him
that “if he sign[ed] off [the ARP], he would make sure
[that Moore] was seen.” Moore refused to sign off on
the ARP. Id., p. 5.
asserts that he filed an ARP with the Commissioner to address
the proper protocols when an inmate is experiencing severe
breathing problems. He argues that the Commissioner and
Warden Bishop failed to “assist plaintiff‘s
conditions by proper investigation” as medical
personnel continued to give them false and altered medical
documents stating that Moore had not experienced abnormal
swelling on his body. Id., pp. 5-6.
Moore accuses Nurse Self of falsifying documents by stating
that he had no joint or bone pain or swelling on March 17,
2016, and by failing to document that he “had been
suffering with sharp chronic needle pains going through his
leg and big toe since January 16, 2016 until now.” ECF
No. 1, p. 6. He claims that he was seen by Nurse Swan on May
24, 2017, and a physician on June 26, 2017, who will verify
that he had a knot on his leg. Moore alleges that Swan
prescribed Motrin for his leg, which proved ineffective.
Id., p. 7. He claims that he experienced continuing
pain and suffering on and off for over a year until he was
seen. Moore asks that defendants be terminated from
employment and seeks compensatory damages of $1, 000, 000.00
from each defendant. Id., pp. 7-8.
October 30, 2017, Moore filed a pleading captioned as
“additional evidence in support.” ECF No. 10.
Construed as a supplemental complaint, Moore seemingly
complains that his complaints of ongoing problems with his
severe stomach pains are being dismissed by the
institution. Id. Moore additionally complains
that he had a negative drug interaction to medications given
for his leg pain and constipation, resulting in an increase
in stomach pain and his admission to the prison infirmary in
July of 2017. ECF No. 16.
Discovery and Injunctive Relief Requests
filed a “supplement motion” indicating that he
also wanted to sue one of the defendants for medical
malpractice and attached to it several written
interrogatories he wanted that defendant to answer. ECF 16.
Further, Moore requests an injunction, stating that NBCI is
refusing to disclose his medical records, which are crucial
to his ability to file an opposition to any motions for
summary judgment. ECF No. 18. He seeks results from testing
done in July, October, and November of 2017. Id. In
addition, Moore seeks injunctive relief to force NBCI'S
Medical Department to respond to his sick-call slips
concerning breathing problems and severe leg and stomach
pains. ECF No. 27. He requests a transfer to another
facility, claiming that the medical staff is retaliating
against him for filing this action. Id.
medical defendants oppose these requests. ECF Nos. 17, 19
& 28. They claim that as no scheduling order has been
issued in this case, Moore is not entitled to discovery. They
additionally argue that Moore is being seen on a frequent
basis and his medical concerns are being addressed. ECF No.
28. The medical defendants attach his radiology, colonoscopy,
and esophagogastroduodenoscopy reports, as well as
Moore's Dietary Change forms and medical site consults
since September 2017. ECF No. 28-1 to ECF No. 28-3.
interrogatories are improper and not within the scope of this
lawsuit, which complains of federal constitutional
violations; consequently, Moore's supplement motion will
be denied. Moreover, his first injunctive relief request,
seemingly filed under Rule 56(d), shall be denied. In the
absence of a Scheduling Order, the parties are not ordinarily
entitled to engage in discovery. Discovery may not commence
before defendants have answered or otherwise responded to the
complaint, and then only after a scheduling order has been
issued by this court. See Local Rule 104.4 (D. Md.
2016). Ordinarily, summary judgment is inappropriate
“where the parties have not had an opportunity for
reasonable discovery.” E. I. du Pont de Nemours and
Co. v. Kolon Industries, 637 F.3d 435, 448-49 (4th Cir.
2011). However, “the party opposing summary judgment
‘cannot complain that summary judgment was granted
without discovery unless that party has made an attempt to
oppose the motion on the grounds that more time was needed
for discovery.'” Harrods Ltd. v. Sixty Internet
Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting
Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996)).
raise adequately the issue that discovery is needed, the
non-movant typically must file an affidavit or declaration
pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why,
“for specified reasons, it cannot present facts
essential to justify its opposition, ” without needed
discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d
at 244-45 (discussing affidavit requirement of former Rule
56(f)). If a non-moving party, however, believes that further
discovery is necessary before consideration of summary
judgment, the party fails to file a Rule 56(d) affidavit at
his peril, because “‘the failure to file an
affidavit . . . is itself sufficient grounds to reject a
claim that the opportunity for discovery was
inadequate.'” Harrods, 302 F.3d at 244
(citations omitted). But, even a non-moving party's
failure to file a Rule 56(d) affidavit cannot obligate a
court to issue a summary judgment ruling that is obviously
as here, no scheduling order has been issued, Moore has been
provided extensive medical records, including the test
reports he seeks, and he has failed to demonstrate that he
cannot fashion opposition responses to defendants'
dispositive motions, Moore has no entitlement to the
discovery he seeks. Nor has he shown an appropriate basis for
Bishop indicates that Moore's verified medical records
reflect that he was routinely seen in the Chronic Care Clinic
(CCC) and over the course of a one-year period he submitted
fourteen (14) sick-call slips. In response to those requests,
on March 13, 2016, he received a physical. ECF No. 12-3, pp.
10-11. On September 8, 2016, he complained of a rotten wisdom
tooth and requested dental care. Id., pp. 53 &
55. On May 22, 2017, Moore's sick-call request discussed
breathing problems and leg pain. Id., pp. 56, 58
& 61, 63-66, & 68.
maintains that the majority of Moore's sick-call slips
involved complaints of stomach pains and constipation. The
medical record shows that he was seen and treated for
constipation. Id., pp. 15-16, 18-19, 21-22, 24-25,
27-29, 31-33, 38-39, 41, 48-49, & 54. In addition,
medical staff noted no respiratory abnormality or
musculoskeletal pain, aside from left knee tenderness.
Id., pp. 4, 11-12, 18-19, 24-25, 27-28, 32-33, 38,
42-43, & 48-49.
to the medical records furnished by Bishop, Moore first
complained of knee pain on June 26, 2017. The medical
provider noted that Moore had a full range of motion (ROM).
X-ray results were unremarkable. Moore received a referral
for physical therapy and the physician considered an
orthopedic referral. ECF No. 12-3, pp. 31-34, 36-37, &
42-44. Moore received physical therapy on August 3 and August
31, 2017. Id., p. 46-47.
filed an ARP on January 17, 2016, complaining that medical
staff had neglected his verbal requests for treatment for a
continuing painful knot behind his left knee and a breathing
problem. The ARP was forwarded to the medical contractor to
complete the ARP investigation. ECF No. 12-2, pp. 3-4 &
6-8. The institutional response indicated that Moore's
ARP was subject to dismissal because Moore had failed to file
sick-call requests regarding the knot in his leg.
Id., p. 3. The Division of Correction Headquarters
investigation of the ARP, occurring in May of 2016, reviewed
the grievance and dismissed it, again finding that Moore had
not filed a sick-call slip regarding the knot on his leg or
breathing difficulties. Id., pp. 11-13. Moore's
appeal to the Inmate Grievance Office was administratively
dismissed. Id., pp. 14 & 17.
Bishop maintains he plays no role in providing medical care
at NBCI and he has no authority to direct, order, or
recommend medical treatment for an inmate. ECF No. 12-4,
Bishop Decl. He affirms that, as the Warden, he relies on the
assessments and judgments of the trained medical contractors