United States District Court, D. Maryland
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE.
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
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. Defendants, Maryland Correctional
Institution-Jessup (MCI-J), the Maryland Department of Public
Safety and Correctional Services (DPSCS), MCI-J Warden
Carroll Parrish,  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.
hearing is not necessary to resolve the issues presented.
See Loc. R. 105.6 (D. Md. 2016).
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, " and was exposed to flooding
and human waste." ECF No. 1 at 11.
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.
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.
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.
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.
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 during the time he was confined at Roxbury
Correctional and Eastern Correctional
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
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
JFM-10-2009, ECF No. 66 at 1.
instant complaint, Davis notes the language stating he could
file a new lawsuit, "in which I'm doing ...