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Moore v. Doe

United States District Court, D. Maryland

May 9, 2018

ROBERT GARY MOORE, #402576, Plaintiff,
v.
WARDEN BISHOP JOHN DOE COMMISSIONER DOC WEXFORD NURSE SIERRA NOLAN KRISTA SELF, CFNP WEXFORD HEALTH SOURCES, INC. RYAN BROWNING, NURSE Defendants.

          MEMORANDUM

          James K. Bredar, Chief Judge

         Pending 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), [1]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.

         I. Complaint Allegations

         Plaintiff 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.[2]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, [3] 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.

         Moore 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.

         Finally, 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.

         On 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.[4] 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.

         II. Discovery and Injunctive Relief Requests

         Moore 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.[5] Id.

         The 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.

         Moore's 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)).

         To 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 premature.

         Where, 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 injunctive relief.

         III. Defendants' Responses

         Defendant 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.

         Bishop 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.

         According 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.

         Moore 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.

         Warden 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 when ...


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