United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
Leslie Allen, a self-represented Maryland prisoner, filed a
civil rights suit against a host of defendants, alleging a
variety of claims. ECF 1; ECF 7; ECF 8. In general, Allen
alleged retaliation; deprivation of pain medication;
deprivation of food; denial of adequate medical care; and
conspiracy by correctional officers who “stood around
and watched” while he was the victim of “hate
crimes.” ECF 1 at 3-4.
Memorandum Opinion (ECF 33) and Order (ECF 34) of August 21,
2017, I granted the motion for summary judgment filed by
defendants Western Correctional Institution
(“WCI”); Lt. Curran McKenzie; Sergeant Thomas
Menges; and Sergeant Jason Daddysman. I also granted the
motion to dismiss filed by Wexford Health Sources, Inc.
Id. However, I denied the motion to dismiss filed by
Robustiano Barrera, M.D. Id.; see ECF
I noted that the Medical Defendants filed no medical records
to support their assertions. ECF 33 at 10. In contrast, the
Correctional Defendants submitted extensive medical records.
pending is a motion for summary judgment filed by defendant
Robustiano Barrera, M.D. ECF 35. In support of his Motion,
Dr. Barrera has submitted various exhibits, including his own
Affidavit and over 350 pages of plaintiff's medical
records. ECF 35-2 (Medical Records); ECF 35-3 (Barrera
Affidavit). Plaintiff opposes the Motion. ECF
ECF 38. He has also submitted exhibits. ECF 39.
an unexplained error, Barrera's memorandum of law was not
electronically submitted when the summary judgment motion was
filed. It has since been docketed. See ECF 41. The
motion and the memorandum shall be referred to collectively
as the “Motion.” Plaintiff was advised of the
filing error and was granted an additional twenty-one days to
supplement his opposition to the Motion. ECF 42. His
supplemental opposition is docketed at ECF 43.
hearing is necessary to resolve the Motion. See
Local Rule 105.6 (D. Md. 2016). For the reasons that follow,
I shall grant the Motion.
a licensed physician, served as the acting Medical Director
of NBCI and WCI from December 2015 to May 2017. ECF 35-3,
¶ 2. He resigned from his employment with Wexford Health
Sources, Inc., effective August 4, 2017. Id.
complains that Dr. Barrera “allowed” correctional
staff “to forcefully remove” his wheelchair. ECF
37 at 2. Further, he contends that he is “a forced
SLAVE whose many rights have been violated and deprived . . .
.” Id. at 4. He argues that has been deprived
of adequate medical care. Id.
33, I previously recounted the factual background of this
case. The pertinent summary concerning the alleged denial of
medical care follows, id. at 2-6:
Allen is a State inmate confined at the WCI in Cumberland,
Maryland. He filed suit on November 17, 2015, initially
naming only WCI and Wexford as defendants. ECF 1. Allen
alleged that on October 26, 2015, he went to officers in his
housing unit asking for assistance, claiming that he was
being deprived of food because his medical
“feed-in” papers were rescinded and that he did
not receive pain medication because his bedrest papers were
rescinded. Id. at 3. Plaintiff indicated that he
advised Lt. McKenzie that he was suffering from back pain but
McKenzie sent him back to his building. While plaintiff was
returning to his unit, his legs gave out and he fell, hitting
his head. Plaintiff got up to walk but fell and hit his head
again. Id. According to Allen, he was denied medical
attention by both custody and medical staff and was taken to
* * *
Plaintiff filed correspondence in March 2016 (ECF 7), with an
exhibit. The submission was construed as a supplemental
complaint adding additional defendants. ECF 9.
In his supplemental filing, plaintiff asserted generalized
allegations regarding interference with mail; racism;
retaliation from unidentified correctional and medical staff;
inadequate medical care; and “fear for [his]
life.” ECF 7 at 1. Further, plaintiff
claims that he has suffered from harassment, and was called
“black and dumb.” Id. He states that he
reported these comments to “Lt.
Hendricks/Dtoglia?” and she took a report. In addition,
plaintiff claims the medical department refuses to see him,
despite his many health problems. Id. Plaintiff
indicates that he filed suit because of malicious intent,
gross negligence, and “hate crimes.” Id.
* * *
In his supplemental filing, plaintiff specified that on
October 8, 2015, he was transferred from “MCI-H
Hospital” to WCI in order to participate in the
“wheelchair program” and undergo rehabilitation
and physical therapy. ECF 7 at 1. He asserts that he was
instructed by doctors to get out of his wheelchair whenever
he could and to exercise, including playing basketball, and
if he did not do so his condition would worsen. On October
16, 2015, he went to the small recreation yard where he got
out of his wheelchair and played basketball by himself. He
claims that cameras would show he struggled and once his body
tightened up, he sat back in the wheelchair. He indicates
that he was so weak that he had to obtain assistance from
another inmate to return to his housing unit.
On October 20, 2015, at approximately 8:45 a.m., Allen was
called to the medical unit and given “feed-in”
status because of his arthritis. ECF 7 at 1. Plaintiff
brought the papers to Housing Unit 3 and provided a copy to
the 8-4 shift sergeant and returned to his cell. Id.
A few minutes later the unidentified sergeant came to his
cell and asked plaintiff for the rest of his papers. The
sergeant then “balled” up the papers and said:
“'If you want to eat go to chow hall.'”
Id. Plaintiff explained his situation but the
sergeant “began acting in an uncivilized manner.”
Later that day, plaintiff was told to return to the medical
unit. At that time his wheelchair was confiscated by Sgt.
Daddysman. Id. Plaintiff reports that Dr. Barrera
said: “‘I know, but they want me to take
it.'” Id. Plaintiff returned to Housing
Unit 3. He states that he tried to walk the long distance but
his “body kept locking up . . . .” Id.
On October 23, 2015, [plaintiff's] legs repeatedly gave
out on him and he was taken to medical where he was given
“feed-in” status until he could be evaluated by
the doctor. He states the food came to his cell on the first
day but from the 24th to 26th of October 2015, he had
problems with the staff, who deprived him of his food trays.
to plaintiff, on a number of instances he collapsed due to
not having the use of a wheelchair. Id. at 5.
Ultimately, on November 5, 2015, he was taken to Bon Secours
Hospital for an “electromyogram, ” which revealed
that he had existing medical problems, including nerve
impingement and spondylosis. Id. at 6 (citing ECF 7
at 2; see also ECF 22-2 at 2.)
I previously said, ECF 33 at 7-10:
In support of his claim, Allen states that on July 16, 2015,
he executed a release of information in favor of the Maryland
Department of Public Safety and Correctional Services
(“DPSCS”), which he gave to agents of Wexford so
that they could verify his condition and adopt an appropriate
course of treatment. According to plaintiff, on July 16,
2015, he was provided a crutch to use as a cane, because
Wexford did not have a cane for someone of his height. In
Allen's view, this demonstrates Wexford's knowledge
that Allen suffers from a serious medical condition and it
furnished an assistive device for him to ambulate.
Id. at 4. Further, plaintiff indicates that an
assessment dated October 8, 2015, indicated that he was
transferred to WCI because his mobility was impaired and he
was given a wheelchair as an adaptive device. Id.
ECF 22-1 at 7.
In an attachment to his opposition (ECF 22-2), plaintiff
states that he “honestly believe[s] that [Dr. Barrera]
was afraid and in fear at the time of his wrongs” to
Allen. Id. at 1. Further, he states: “Dr.
Barrera should have taken up for me in front of those goons,
but he didn't which is clear malpractice, negligence,
etc.” Id. Yet, he acknowledges that, under the
circumstances, he “probably would have made the same
choice.” Id. Nevertheless, Allen adds:
“It does not excuse his actions . . . but I do
not want Dr. Barrera held accountable on the same
level as the other Defendants. He could have said that he was
‘sorry' and I would have forgave him.”
* * *
Plaintiff has also submitted a copy of an ARP dated October
20, 2015, in which he detailed his complaint regarding the
involvement of Daddysman and Barrera in the confiscation of
his wheelchair. ECF 22-1 at 6. He recounted that he was
called to the medical unit on October 20, 2015, and Dr.
Barrera advised him that the correctional officers wanted the
doctor to take plaintiff's wheelchair from him because he
was observed playing basketball. Id. Plaintiff
advised Barrera that other medical providers had instructed
him to exercise, to play basketball, and do anything he could
to strengthen and rehabilitate. He also reported that he was
advised that the more he sat still the worse his condition
would become. Id. According to plaintiff, Barrera
acknowledged his agreement with this medical advice, but he
explained that “the officers want him me to take [the]
wheelchair . . . because they saw [Allen] on camera playing
basketball.” ECF 22-1 at 6.
In the ARP, plaintiff also stated that he and Barrera then
began discussing Allen's “pain levels.”
Id. at 7. Sgt. Daddysman was in the room “the
entire time” and “interrupted” the
conversation, stating that he saw plaintiff playing
basketball and he was taking the wheelchair. Id.
Plaintiff objected, advising Daddysman not to take the
wheelchair because he had not completed physical therapy and
the rehabilitation program. Id. Plaintiff also
stated that “medical overrides custody.”
Id. Further, Allen “pleaded” with
Barrera and reported to Barrera that his legs were still
weak. In addition, he alleged that he stood to show the
doctor the weakness in his legs and Barrera responded,
“‘I know.'” Id. Nevertheless,
in a “threatening and hostile manner, ” Daddysman
took the wheelchair. Id. According to plaintiff, the
incident was “cruel and humiliating.”
Daddysman then instructed plaintiff to leave the medical
unit. Allen claimed that he was “scared and afraid,
” and he was “forced to walk back to [his]
building in excruciating pain.” ECF 22-1 at 7. Before
Allen left, he told the doctor that the doctor needed to give
him a walker or a cane. Plaintiff stated that Barrera did not
respond and “appeared afraid.”
Id.6 Daddysman said: “‘We
don't have to give you shit, now man up and get out of
FN6 in ECF 33 Plaintiff indicates in his
“Motion to Amend/Supplement Plaintiff's
Complaint” (ECF 26) that Barrera acted “out of
fear, deprived [him] of an instrument that was ordered for
[him] by a superior agent, to use as part of [his]
rehabilitation.” Id. at 1.
Barrera advised plaintiff that he would renew his pain
medication. Id. Daddysman became more hostile and
plaintiff was in fear of being attacked, so he left and
walked back to his housing unit “in terrible
pain.” Id. Once Allen was back at the housing
unit, he asked for assistance from officers in the building
but was told that he had to write medical and that the
sergeant, with no medical training, took the wheelchair
because he saw plaintiff playing basketball. ECF 22-1 at 7.
Plaintiff also reported in the ARP that he suffers from
herniated discs, nerve damage and multi-level degenerative
disc disease and was to continue receiving physical therapy
and rehabilitation services. Id. at 7. He stated
that because he had no wheelchair he missed several meals,
due to the pain from the long walk to the chow hall and back.
Further, he stated that he cannot receive a feed-in tray
unless authorized by medical so he was forced to survive on
bread, water, and coffee. Id. In his view, he has
been “treated with absolute cruelty.”
In his attachment to his opposition (ECF 22-2), plaintiff
also complains about the lack of adequate medical care. For
example, he indicates that after the events of October 26,
2015, he had a swollen face and experienced considerable pain
throughout his body. Yet, he complains that he was not seen
by sick call until a week later, on November 1, 2015.
Id. at 2. Further, he maintains that he was not seen
by a registered nurse until November 24, 2015, 7
and that he was never seen by a doctor regarding his
condition. Id. at 2. He adds: “I was made to
suffer from lack of medical attention and pain . . . .”
Id. In addition, Allen points to injuries he
sustained on November 16, 2015. Id. And, he asserts
that he was “denied medical treatment.”
FN7 in ECF 33 In other documents attached to his
opposition, Allen indicates that he was seen by a
physician's assistant on November 16, 2015, while housed
at JCI. ECF 22-2 at 4.
Plaintiff also points out that he was taken to Bon Secours
Hospital on November 5, 2015. According to Allen, this
revealed that he suffered nerve impingement and spondylitis.
Id. According to plaintiff, documents were removed
from his medical file to conceal the findings of the
Attached to his motion to amend (ECF 26), plaintiff has
provided a copy of a medical report dated November 24, 2015.
ECF 26-1. It indicates that Allen's wheelchair was
returned to him on that date for use in traveling long