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Gilbert v. Graham

United States District Court, D. Maryland

August 28, 2018




         Steven 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”).[1] ECF 1. It has been construed as a civil rights Complaint.

         Counsel 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.

         On 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.

         Because 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.

         The 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)).

         Gilbert's 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).

         For the 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.

         I. Factual Background

         Gilbert 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.

         According 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.[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 cancer.

         Gilbert 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.

         Counsel 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).

         The 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.” Id.

         Dr. 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 required.[3]

         Gilbert's 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.

         In 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.

         In a 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.

         In 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). Id.

         In an 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 days.” Id.

         Gilbert 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.

         II. Standard of Review

         A. Summary Judgment

         This 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 ...

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