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Bellard v. Barrera

United States District Court, D. Maryland

August 9, 2018

DARRELL BELLARD, #428757 Plaintiff,
v.
ROBUISTIANO BARRERA, M.D. MAHBOOB ASHRAF, M.D. KRISTA DAWN SELF, R.N.P. RICHARD RODERICK, Acting Warden Defendants.

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE

         On July 26, 2017, this 42 U.S.C. § 1983 civil rights case for declaratory and injunctive relief, as well as monetary damages, was filed by plaintiff Darrell Bellard, a self-represented inmate who was then housed at the North Branch Correctional Institution (“NBCI”).[1] ECF 1. In his Complaint (ECF 1), lodged against several defendants, Bellard alleges that he suffers rheumatoid arthritis in both knees, resulting in pain, stiffness, tenderness, and swelling. Further, he alleges that NBCI's Acting Warden, Richard Roderick, dismissed his Administrative Remedy Procedure (“ARP”) grievance concerning his medical condition. ECF 1 at 2, ¶ 7.[2] And, Bellard contends that Robustiano Barrera, M.D., the Medical Director for the Western Maryland regional prisons, had actual knowledge of his condition and bears responsibility for his inadequate medical care. ECF 1 at 1, ¶ 4. In addition, Bellard claims that Dr. Barrera, Dr. Mahboob Ashraf, and Registered Nurse Practitioner Krista Dawn Self (collectively, “the Medical Defendants”) have failed to provide appropriate medical care. Id. at 1-2, ¶¶ 5-6.

         In a preliminary injunction request accompanying the Complaint (ECF 3), Bellard alleged that he would suffer irreparable harm if not provided adequate pain medication, a medical cell, and assistive devices (a walking cane for his cell and unit and a wheelchair for all travel outside his cell). In a court Order dated July 28, 2017 (ECF 4), counsel for the Maryland Attorney General was directed, inter alia, to respond to plaintiff's claim of a medical emergency. The Maryland Attorney General responded to Bellard's medical concerns in ECF 13. Thereafter, this court denied plaintiff's request for preliminary injunction (ECF 20; ECF 21) and later denied (ECF 32) Bellard's requests for reconsideration of that decision (ECF 23; ECF 26), despite Bellard's claim that he is without his cane and remains without medication.

         Bellard seeks unspecified compensatory and punitive damages. He also seeks injunctive relief mandating renewal of his Ultram prescription, placement in a medical cell, and unfettered use of a cane and wheelchair. ECF 1 at 7.

         The Medical Defendants have filed a motion to dismiss or, in the alternative, motion for summary judgment. ECF 14. It is supported by a memorandum of law (ECF 14-4) (collectively, the “Motion”) and several exhibits, including plaintiff's extensive medical records. See ECF 14-5. Bellard opposes the Motion (ECF 16), supported by exhibits. And, Bellard submitted additional filings at ECF 17; ECF 18. Additionally, Bellard subsequently submitted affidavits in support of his opposition. ECF 22; ECF 25; ECF 27. The Medical Defendants have replied. ECF 19.

         Acting Warden Richard Roderick, the sole correctional defendant, was not served with a copy of the Complaint. Although the Office of the Maryland Attorney General responded to the show cause order and provided Bellard's medical record, it has filed no response to Bellard's allegation that Roderick denied Bellard's Administrative Remedy Procedure grievance concerning his ongoing medical issues. A copy of the ARP grievance was not included with Bellard's Complaint, nor is it found elsewhere in the record.[3]

         No hearing is necessary to determine the matters pending before the court. See Local Rule 105.6 (D. Md. 2016). For reasons noted herein, Defendant Roderick shall be DISMISSED and summary judgment shall be GRANTED in favor of Medical Defendants Barrera, Ashraf, and Self.

         II. Standard of Review

         The Medical Defendants' motion is styled as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. ECF 12. A motion styled in this manner implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F.Supp.2d 431, 436-37 (D. Md. 2011). Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for summary judgment under Rule 56, ” and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). When the movant expressly captions its motion “in the alternative” as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court “does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).

         In contrast, a court may not convert a motion to dismiss to one for summary judgment sua sponte, unless it gives notice to the parties that it will do so. See Laughlin, 149 F.3d at 261 (stating that a district court “clearly has an obligation to notify parties regarding any court-instituted changes” in the posture of a motion, including conversion under Rule 12(d)); Finley Lines Joint Protective Bd. Unit 200 v. Norfolk So. Corp., 109 F.3d 993, 997 (4th Cir. 1997) (“[A] Rule 12(b)(6) motion to dismiss supported by extraneous materials cannot be regarded as one for summary judgment until the district court acts to convert the motion by indicating that it will not exclude from its consideration of the motion the supporting extraneous materials.”).

         A district judge has “complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.” 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004, 2011 Supp.). This discretion “should be exercised with great caution and attention to the parties' procedural rights.” Id. at 149. In general, courts are guided by whether consideration of extraneous material “is likely to facilitate the disposition of the action, ” and “whether discovery prior to the utilization of the summary judgment procedure” is necessary. Id. at 165-67.

         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, Inc., 637 F.3d 435, 448-49 (4th Cir. 2012); Putney v. Likin, 656 Fed.Appx. 632, 638-640 (4th Cir. 2016) (per curiam); McCray v. Maryland Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2014). A party “needs an ‘adequate opportunity' to present its case and ‘demonstrate a genuine issue of material fact.'” Adams Housing, LLC v. City of Salisbury, Maryland, 672 Fed. App'x 220, 222 (4th Cir. 2016) (per curiam) (citation omitted). 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) (hereinafter, “Harrods”) (quoting Evans v. Tech's. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)); see also Dave & Buster's, Inc. v. White Flint Mall, LLLP, 616 Fed.Appx. 552, 561 (4th Cir. 2015).

         To raise adequately the issue that discovery is needed, the nonmovant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for specified reasons, [he] 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 the affidavit requirement of former Rule 56(f)). A nonmoving party's Rule 56(d) request for additional discovery is properly denied “where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham, 437 F.Supp.2d 414, 420 (D. Md. 2006), aff'd, 266 Fed.Appx. 274 (4th Cir. 2008), cert. denied, 555 U.S. 885 (2008).

         If a nonmoving party believes that further discovery is necessary before consideration of summary judgment, the party who fails to file a Rule 56(d) affidavit does so 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 (quoting Evans, 80 F.3d at 961); see also Dave & Buster's, Inc., 616 Fed.Appx. at 561. But, the nonmoving party's failure to file a Rule 56(d) affidavit does not obligate a court to issue a summary judgment ruling that is obviously premature. Although the Fourth Circuit has placed “‘great weight'” on the Rule 56(d) affidavit, and has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for [an] affidavit, '” the appellate court has “not always insisted” on a Rule 56(d) affidavit. Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961). The failure to file an affidavit may be excused “if the nonmoving party has adequately informed the district court that the motion is premature and that more discovery is necessary, ” when the “nonmoving party's objections before the district court ‘served as the functional equivalent of an affidavit, '” and if the nonmoving party “was not lax in pursuing discovery.” Harrods, 302 F.3d at 244-45 (citation omitted).

         Bellard requested limited discovery, seeking affidavit or video evidence to support defense contentions that he walks without a cane, used his cane as a weapon, and was seen playing basketball. ECF 17 at 1-2. He also asked for independent medical and mental health examinations, which he claims are necessary for proper determination of this case. Id. at 2.

         In the Memorandum denying injunctive relief, this court stated that defendants may not rely on mere assertions concerning Bellard's ability to walk without assistance and to play sports, without support in the record, and granted them 21 days to provide the court with video or affidavit evidence in support of these statements. ECF 32. The Medical Defendants have since indicated that they have no video evidence or direct affidavit evidence from individuals who actually saw Bellard walk and/or play sports. ECF 33 at 1, ¶ 2. They also note that the video, alluded to at ECF 14-5 at 111, no longer exists. Id. ¶ 3.

         Nevertheless, given the extensive medical record that has been produced, exceeding 200 pages (ECF 14-5), the Court shall deny further discovery in this case. Moreover, I am satisfied that it is appropriate to address the Medical Defendants' Motion as a motion for summary judgment, as this will facilitate resolution of the case.

         Summary judgment is governed by Fed.R.Civ.P. 56(a), which provides, in part: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

         A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248. There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see Sharif v. United Airlines, Inc., 841 F.3d 199, 2014 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).

         In sum, to counter a motion for summary judgment, there must be a genuine dispute as to material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). “A court can grant summary judgment only if, viewing the evidence in the light most favorable to the non-moving party, the case presents no genuine issues of material fact and the moving party demonstrates entitlement to judgment as a matter of law.” Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017).

         III. Factual Background

         A. Bellard's Allegations

         Bellard claims that the Medical Defendants have failed to treat his “stage III, severe, or stage IV, Terminal Rheumatoid Arthritis” in both knees. ECF 1 at 2, ¶ 10. Further, he contends that following his transfer from Western Correctional Institution (“WCI”) to NBCI on April 7, 2016, he has been denied proper medication; denied a handicap-equipped cell; and was refused ambulatory assistive devices, including a wheelchair and cane, which was taken from him on February 14, 2017. ECF 1 at 2-3. Bellard states that after his cane was taken away, he was unable to move about NBCI, and thus he could not participate in scheduled physical therapy (“PT”) sessions. Id. at 3.

         Bellard also complains that he has difficulty walking to the medical unit for sick call, and was unable to keep an appointment on July 10, 2017. Id. at 5. He asserts that following x-rays taken at WCI on May 25, 2017, WCI medical personnel recommended his use of a wheelchair, but NBCI medical staff ignored that recommendation. Instead, he is allowed wheelchair use only when he attends PT. Id. at 4-5. Moreover, plaintiff complains that Defendant Self “cancelled” his Ultram prescription in April 2016, instead substituting Cymbalta, a medication Bellard states is ineffective in controlling his pain. Id. at 6.

         Bellard provided affidavits (ECF 22; ECF 25) stating that he has been without a cane since February 14, 2017, and must walk to the cafeteria for meals and to the medical unit. Because he has no cane, he avers that he is starving and unable to obtain his medication. Id. Similar averments have been filed in affidavits from prisoners housed on Bellard's tier, or familiar with his circumstances, including Today Cooper, Jerrod Webster, Melvin Holloway (ECF 22-1 through ECF 22-3), as well as Ernest Cleveland, Gary Smith, Eric Poole, William Spencer, Donald Stromann, and Jean Germain. ECF 27-1 through ECF 27-5.

         B. The Medical Defendants' Response

         An understanding of Bellard's ongoing joint pain issues is provided by a review of his medical records, compiled during his previous housing assignment at WCI.

         Bellard, who is in his early fifties, suffers from a number of health conditions. Most relevant here are his diagnoses of arthropathy (arthritis) of the lower legs with joint pain, bilateral moderate degenerative joint disease of the knees, bilateral ...


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