United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
Gilbert, the self-represented plaintiff, is an inmate
currently incarcerated at the Western Correctional
Institution (“WCI”). In Case ELH-17-3357, he
filed suit against Warden Richard Graham, Jr., but stated in
the body of his “Motion” that he has sued
“the Medical staff of Wexford Health Care”
(“Wexford”). ECF 1. It has been construed as a civil
for the Maryland Department of Public Safety and Correctional
Services (“DPSCS”) was directed to show cause why
injunctive relief should not be granted in favor of Gilbert
in connection with his asserted medical issues. ECF 3. The
response to show cause (ECF 12) was filed, and supported by
exhibits. Gilbert was advised that the Court would construe
the response as a motion for summary judgment, and of his
right to respond. ECF 14. Gilbert filed an opposition (ECF
15), with exhibits. Additionally, Gilbert filed two
“motions for medical relief.” ECF 17; ECF 25.
January 24, 2018, Gilbert filed a Complaint in Case
ELH-18-230 (ECF 1) against Ava Joubert-Curtis, M.D.; April
Warnick; Burnice Swan; Maria Lewis; Dennis Martin; and
Wexford (collectively, the “Medical Defendants”).
ECF 1. He then filed what was docketed as an Amended
Complaint on February 23, 2018 (ECF 5), and what was docketed
as a Second Amended Complaint on March 29, 2018. ECF 6.
of the similarity of the cases, the two actions were
consolidated. See ECF 8 in Case ELH-18-230; ECF 21
in Case ELH-17-3357. I shall refer to the 2017 case as
“Case I.” I shall refer to the 2018 case as
“Case II.” Case I is the lead case, and citations
to the record shall generally refer to filings in that case,
unless otherwise noted.
court is mindful of its obligation to construe liberally the
pleadings of a self-represented litigant. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007); White v. White,
886 F.2d 721, 722-723 (4th Cir. 1989). But, liberal
construction does not mean that a court can ignore a clear
failure in the pleading to allege facts that set forth a
cognizable claim. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990); see also
Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th
Cir. 1985) (stating a district court may not “conjure
up questions never squarely presented.”). Moreover, the
court must abide by the “‘affirmative obligation
of the trial judge to prevent factually unsupported claims
and defenses from proceeding to trial.'”
Bouchat v. Baltimore Ravens Football Club, Inc., 346
F.3d 514, 526 (4th Cir. 2003) (internal quotation marks
omitted) (quoting Drewitt v. Pratt, 999 F.2d 774,
778-79 (4th Cir. 1993), and citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986)).
pending motions to proceed in forma pauperis shall be
granted. ECF 18 in Case I; ECF 2 in Case II. No. hearing is
necessary to determine the remaining matters pending before
the court. See Local Rule 106.5 (D. Md. 2016).
reasons stated below, I shall dismiss the claim against
Warden Graham. Gilbert's motions for medical relief shall
be denied. But, I shall deny, without prejudice, the summary
judgment motion as to the Medical Defendants. And, the Clerk
shall be directed to serve Wexford; Ava Joubert-Curtis, M.D.;
April Warnick; Burnice Swan; Maria Lewis; and Dennis Martin
in regard to Gilbert's claim that he has not been
adequately treated for an H. Pylori infection.
claims that he told three nurses, April Warnick, Maria Lewis,
and Dennis Martin, that he had been throwing up blood
beginning October 22, 2017, without receiving medical
treatment. ECF 1 at 1. He alleges that he was told his
condition would be reported to a physician, but he did not
receive treatment, despite that assurance. Id.
to Gilbert, he informed Correctional Officers Frenzel, Romey,
Layton, and Davis, as well as Sgt. Drew, that he was vomiting
blood for a period of days and had not been seen by a medical
provider, despite submitting sick call slips requesting
attention. ECF 1 at 2.He also claims that he filed a complaint
through the prison grievance procedure, known as an ARP,
stating that he has cancer, with lumps and pain in his upper
chest area. Id. According to Gilbert, Nurse Maria
Lewis told him she would try to get him seen by a provider,
but he was never seen for the complaints of chest pain.
Id. Gilbert did not explain why he believes he has
seeks 800 million dollars in damages from Wexford “for
medical neglect.” ECF 1 at 3. Because of the apparent
seriousness of the nature of his claimed ailment, this court
directed an immediate response from DPSCS prior to service of
the complaint. See ECF 3.
filed a response (ECF 12), together with medical records and
a Declaration under oath from Burnice Swan, the Assistant
Director of Nursing at WCI, where Gilbert is incarcerated.
She disputes Gilbert's allegations that he has not
received medical attention for his complaints. ECF 12-1
(medical records); ECF 12-2 (Declaration of Swan).
medical records reflect that Gilbert was seen by medical
staff in response to his claims that he was vomiting daily
for over a month and, despite the fact that he exhibited no
signs or symptoms of being dehydrated or otherwise in
distress, tests were ordered, which came back normal. ECF
12-1 at 59, 68; ECF 12-2 at 2. On December 27, 2017, Dr.
Joubert-Curtis reported that Gilbert complained that he had
been “vomiting everything he eats or drinks for 67
days, ” but his demeanor when presenting to the
dispensary was “smiling and laughing.” ECF 12-1
at 72. In addition, Gilbert had gained weight over the
previous four months. Moreover, “Labs and [abdominal]
x-rays are normal.” Id. And, a “fecal
occult blood test” was also “negative.”
Joubert-Curtis noted that Gilbert has a psychiatric history
and has been diagnosed with “multiple personality
disorder, antisocial personality and dissociative personality
disorder.” Id. He is under the care of
psychiatric staff. Id. Dr. Joubert-Curtis also
noted, however, that she was “ordering labs for
h.pylori, and inflammatory markers.” Id. Of
import here, there is no further indication regarding the
results of those tests, whether other treatment was ordered
as a result, or whether or not further treatment is
correspondence addressing the response to show cause takes
issue with the assertion that he has been diagnosed with
dissociative reaction disorder, antisocial personality
disorder, or dissociative personality disorder. ECF 13. He
states that he is “only diagnosed w[ith] ADHD, Bipolar,
Schizophrenia, psychotic disorder, multiple personality
disorder, Asperger's disorder, major depression, &
PTSD.” Id. Further, Gilbert observes that his
mental health issues should have nothing to do with his
complaint regarding vomiting blood and adds that “they
also cannot find out what's wrong with me nor are they
checking my vomit to see what's wrong with me or causing
me to be sick.” Id.
Gilbert's opposition to summary judgment (ECF 15),
Gilbert states that he should be granted injunctive relief
because he has been “spitting up blood” and has a
migraine headache. Id. at 1. Notably, he claims the
labwork from December 27, 2017, came back positive for
H.pylori, but that Swan told him “you are fine.”
Id. According to Gilbert, he has not been treated
for either the H.pylori infection or his high cholesterol.
Id. at 2. He reiterates that the status of his
mental health is irrelevant to his need for medical treatment
because he is “extremely sick.” Id. With
regard to Warden Graham, Gilbert simply states that he wrote
to Graham and told him that he is sick and needs to see a
doctor. Id. at 1-2.
pleading that was docketed as a motion seeking medical
treatment, Gilbert claims he has been sick for 122 days and
that he has the H. Pylori virus. ECF 17. Further, he contends
that he is refused treatment despite his assertions that he
has been vomiting blood, foods, liquids, and his medications.
Id. He asserts that he has “asked to have a
scope to look at [his] stomach, ” but has “not
received treatment whatsoever.” Id.
another request for medical treatment (ECF 25), Gilbert
asserts “medical neglect, ” alleging he has H.
Pylori that has been untreated for 188 days; he has been sick
with H.Pylori “for one whole year now”; he has
never been treated by Wexford staff; he cannot keep food
down; he is vomiting blood; and he has pain in his chest and
stomach. Id. at 1. Further, he claims that the
failure to provide him with treatment for the virus has
caused him to develop hyperlipidemia (high cholesterol).
amended complaint, originally docketed as ECF 5 in Case II
(Civil Action ELH-18-230), and then filed as ECF 22 in Case
I, Gilbert makes similar claims against defendants Wexford,
Joubert-Curtis, Warnick, Swan, Lewis, and Martin. ECF 22. He
states that Swan did a wellness check on December 27, 2017,
and determined that he has H. Pylori and high cholesterol.
Id. at 1. Further, he claims that he has submitted
several sick call slips, but has not been seen by a medical
provider for his complaint of “vomiting blood for 160
reiterates his demand for 800 million dollars in damages for
medical malpractice and negligence against Dr. Joubert-Curtis
and Swan because they did not comply with his demand to be
sent to a hospital to be treated for H. Pylori. ECF 22 at 2.
Standard of Review
court advised the parties that it would construe the response
to show cause as a motion for summary judgment under
Fed.R.Civ.P. 56. The parties were thus given notice that the
pleading was so construed, and Gilbert was advised of the