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Davis v. Maryland Correctional Institution

United States District Court, D. Maryland

August 29, 2018

VANDER DAVIS, #323-484 Plaintiff,



         Plaintiff Vander Davis filed this complaint with attachments pursuant to 42 U.S.C. § 1983, raising Eighth Amendment claims of inadequate medical care, unconstitutional conditions of confinement, and negligence. ECF No. 1 at 10; ECF No. 1-2 at 3.[1] Defendants Wexford Health Sources, Inc., Barbara Steele, R.N., and Yonas Sisay, M.D., (collectively, the medical defendants) by their attorneys, filed a motion to dismiss (ECF No. 11), to which Davis filed a response in opposition (ECF No. 20), the medical defendants filed a reply (ECF No. 25), and Davis filed a surreply (ECF No. 29). The medical defendants filed a motion to strike the surreply, which will be granted. ECF No. 30.[2] Defendants, Maryland Correctional Institution-Jessup (MCI-J), the Maryland Department of Public Safety and Correctional Services (DPSCS), MCI-J Warden Carroll Parrish, [3] and Case Manager Vivian Lee Bailey (collectively, the State defendants), by their counsel, filed a motion to dismiss or, in the alternative, motion for summary judgment. ECF No. 27. Davis filed an opposition to the state defendants' motion and the State defendants filed a reply. ECF Nos. 37, 38.

         A hearing is not necessary to resolve the issues presented. See Loc. R. 105.6 (D. Md. 2016).


         Davis is presently incarcerated at Roxbury Correctional Institution (RCI) in Hagerstown, Maryland. The complaint, which Davis filed on November 27, 2017, presents allegations premised on events that occurred during the time he was incarcerated at MCI-J. Davis faults the medical defendants for "failure to inquire into facts necessary to make a professional judgment, failure to carry out medical orders, judgment so egregiously bad that it really isn't medical," for environmental health and safety conditions which caused his ear infection, and for failing to treat his ear infection. ECF No. 1 at 10-11. He alleges that MCI-J has defective plumbing, [in]adequate toilets, and polluted drinking water "toxic to human health, "[4] and was exposed to flooding and human waste." ECF No. 1 at 11.

         Regarding his medical claim, Davis states that on July 2, 2012, Bogucki Zygmunt, PA, examined him for an ear infection accompanied by discharges of blood and pus, and then sent him to Michael Gua, RN, ECF No. 1 at 3. Davis states that samples of the blood and pus discharge were taken from his right ear. ECF No. 1 at 8.

         Davis asserts that on July 15, 2012, he awoke from his sleep, could not breathe, and his pillow was soaked with pus and blood. A correctional officer took him to the medical office. Davis saw a physician's assistant the next morning and "[t]est [sic] were taken again." ECF No. 1 at 8. Davis maintains that his right ear continued to discharge blood and pus.

         On November 1, 2012, Davis complained to Vivian Bailey, his case manager, that he had been suffering ear discharge since July, and Bailey contacted Barbara Steele, R.N. ECF No. 1 at 8; ECF No. 1-5. Yonas Sisay, M.D. examined Davis and took more samples for testing. On November 19, 2012, Sisay diagnosed Davis with proteus mirabilis and E. coli otitis media in his right ear, a condition Davis asserts that he had for five months. ECF No. 1 at 9; ECF No. 1-4. Davis states that Sisay told him that the infection comes from water in the shower. ECF No. 1 at 9.

         Davis maintains that there have been problems with the plumbing, water quality, and sewage at MCI-J since 2010, with the most recent problem, occurring in May of 2015, when inmates were not allowed to drink the water and sewage flooded the dining hall. ECF No. 1 at 9. Davis seeks monetary damages as relief. ECF No. 1 at 3.

         Davis explains that he "tried to add my named Defendants in this case" by filing a third motion to amend the complaint in Davis v. Maryland Department of Public Safety and Correctional Services, et ah, Civil Action JFM-10-2009. In that case, Davis alleged violations of the Americans with Disabilities Act and claimed that he had received inadequate medical treatment for a hearing impairment[5] during the time he was confined at Roxbury Correctional and Eastern Correctional Institution.[6]

         On July 20, 2011, Judge J. Frederick Motz granted Defendants' motion for summary judgment as to Davis' medical claims, denied summary judgment as to the ADA claims, and appointed counsel to represent Davis. JFM-10-2009, ECF Nos. 25, 26. On December 19, 2012, Davis, by his counsel, filed a motion for leave to file a third amended complaint, which sought to amend the complaint to bring claims of negligence and malpractice against six new defendants: Michael Gua, Assistant Nurse, Bogucki Zygmunt, Physician's Assistant, Vivian Lee Bailey, Case Manager, Barbara Steele, Head Nurse, Sisay Yonas, and Wexford Health Services, Inc., based on their alleged failure to treat him for his proteus mirabilis and Ecoli in his ear. JFM-10-2009, ECF No. 63. Davis, by his counsel argued that because his counsel is pro bono, it would be unlikely that Davis would obtain representation readily if he were to file "a new motion." JFM-10-2009, ECF No. 63 at 3. Defendant Nancy Bealer, R.N., filed an opposition to Davis' motion. JFM-10-2009, ECF No. 64.

         Judge Motz denied Davis leave to file a third amended complaint on January 24, 2013, because the matters it alleged were "at best, tangentially related to the events giving rise to the original action." JFM-10-2009, ECF No. 66, 67. The Memorandum issued with the Order reads:

Plaintiff is represented by court-appointed counsel. In his memorandum plaintiff states that unless the third amended complaint is filed, there is a likelihood that he would be required to file a new law suit in a pro se capacity.
The present law suit was filed in 2010, and Nancy Bealer, R.N., who opposes plaintiffs motion, is a named defendant.
Under the circumstances I have concluded that plaintiff's motion for leave to file third amended complaint should be denied. I recognize plaintiffs pro se status. However, if he has meritorious claims against the defendants whom he proposes to add, he may file a new law suit and this court, in accordance with its ordinary practice, will determine whether counsel should be appointed to represent him. In light of the fact that the proposed third amended complaint would add six new defendants, there would be inevitable delay in resolving the claims thus far asserted in this action. Defendant Bealer is entitled to a timely resolution of those claims.

JFM-10-2009, ECF No. 66 at 1.

         In the instant complaint, Davis notes the language stating he could file a new lawsuit, "in which I'm doing ...

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