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Mondowney v. Baltimore County Detention Center

United States District Court, D. Maryland

September 11, 2018



          Ellen L. Hollander United States District Judge

         Derrick Arnell Mondowney is the self-represented plaintiff in two related prisoner civil rights cases. Mondowney is an inmate currently confined at the Jessup Correctional Institution (“JCI”). But, he was previously held at the Baltimore County Detention Center (“BCDC”). He filed his suits pursuant to 42 U.S.C. § 1983, alleging that he was denied constitutionally adequate medical care while detained at BCDC.

         In Case ELH-16-3932 (“Case I”), filed on December 8, 2016, plaintiff sued BCDC. Id., ECF 1.[1] In supplemental complaints (ECF 4, ECF 5, ECF 6), [2] with exhibits, plaintiff added several defendants: Deborah Richardson, Dr. Barnes, S. Verch, Bonita Cosgrove, Sgt. Leake, and Sgt. Church. The case was closed because plaintiff moved and failed to provide the court with a new address. ECF 9. However, plaintiff's motion for reconsideration (ECF 13) was granted and the case was reopened. ECF 14. The motion for leave to proceed in forma pauperis, docketed in Case I at ECF 19, shall be granted.

         On June 5, 2017, plaintiff filed Mondowney v. BCDC, et al., Civil Action No. ELH-17-1538 (“Case II”), with numerous exhibits.[3] In substance, it is essentially a duplicate of Case I, with additional defendants. See Case I, ECF 20. Apparently, plaintiff had been transferred from BCDC to JCI and, due to the dismissal of Case I, he filed Case II.

         In Case II, defendants Correct Care Solutions, LLC (“CCS”) and Zowie Barnes, M.D. (the “Medical Defendants”) have moved to dismiss or, in the alternative, for summary judgment. Their motion is supported by a memorandum (ECF 24-1) (collectively, “Medical Defendants' Motion”) and exhibits. Defendants BCDC, Bonita Cosgrove, Stephen Verch, Sergeant Ronald Church, and Sergeant Martin Leake (the “County Defendants”) have filed a similar motion (ECF 27), supported by a memorandum (ECF 27-1) (collectively, “County Defendants' Motion”) and exhibits. Plaintiff opposes the motions, and has submitted exhibits. Id., ECF 29; ECF 30; ECF 31.[4] The Medical Defendants have replied. Id., ECF 32.

         The motions were docketed only in Case II. Given that the cases are related they shall be consolidated for purposes of the disposition of the motions.[5]

         No hearing is needed to resolve these matters. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, the Medical Defendants' Motion, construed as a motion to dismiss, shall be denied. The County Defendants' Motion, construed as a motion to dismiss, shall be granted as to Baltimore County Detention Center, Bonita Cosgrove, and Stephen Verch, and denied as to Sergeant Ronald Church and Sergeant Martin Leake.

         I. Factual Background

         A. Plaintiff's factual assertions

         Plaintiff alleges that on August 30, 2016, he suffered a stroke and was sent to the University of Maryland St. Joseph Medical Center, where he remained until September 2, 2016. Case II, ECF 1-1 at 4.[6] His discharge instructions included orders for medication as well as physical and occupational therapy. Id. On October 12, 2016, he underwent assessment at the University of Maryland Medical Center Rehabilitation Department, so that a course of treatment could be developed. Id. Plaintiff states that as a result of this assessment, several medical appointments were scheduled for him between October 28, 2016 and November 30, 2016. Id. at 5.

         According to plaintiff, on numerous occasions the correctional escort staff caused him to be late for his medical appointments. As a result, he missed ten appointments essential to his health. Id. at 9.

         For example, plaintiff asserts that he arrived over an hour late for his first therapy session, scheduled on October 28, 2016, and therefore he was declined treatment. ECF 1-1 at 5. He was scheduled for a morning appointment on November 2, 2016, but because he arrived late it was rescheduled to the afternoon. Id. The afternoon appointment was cancelled because he was again late. Id. Sgt. Leake, who is in charge of the processing area at BCDC, on learning that the appointment was cancelled, advised plaintiff that “‘if [he] wanted compassion or adequate medical care, [he] should have stayed home . . . It does not affect my pay check.'” Id. at 7. Plaintiff adds that he also missed appointments scheduled for November 4, 9, 11, 18, 23, 25, and 30, 2016. Case II, ECF 1-1 at 7.

         Plaintiff is confined to a wheelchair. Therefore, he expresses concern that the lack of appropriate rehabilitation will consign him to remain wheelchair bound, without “a decent quality of life . . . .” Id. at 6; see also Id. at 8.

         On November 11, 2016, plaintiff sent a request to medical staff regarding the difficulty in his being processed and transported to his physical therapy appointments. Id. at 7. Sgt. Church, who was in charge of processing inmates for transport, was contacted “with no success.” Id.

         Plaintiff was transported to the University of Maryland Medical Center Rehabilitation Department on November 16, 2016, but again arrived late and was declined treatment. Id. The physical therapist provided plaintiff a request to give to Dr. Barnes and Bonita Cosgrove so that plaintiff could have access to his tennis shoes in order that plaintiff could practice the exercises he would have performed during physical therapy. Id. at 7-8. Plaintiff explains that the tennis shoes were necessary to provide “sure footing and support” while performing his exercises, rather than conducting the exercises in the shower shoes provided by the institution. Id. at 8. Plaintiff indicates that the request was not acknowledged and access to his tennis shoes was denied. Id.

         Mondowney submitted a grievance regarding the occurrences to S. Verch, Bonita Cosgrove, and Deborah Richards. Case II, ECF 1-1 at 8. He received a response to the grievance indicating it was partially substantiated but that no further action would be taken. Id.

         On February 7, 2017, Lt. Chaddick took plaintiff's rolling walker that had been issued to him pursuant to the order of Mike Swoboda, the Physical Therapist at the University of Maryland. Id. at 20. Lt. Chaddick advised plaintiff that he was acting on the orders of Dr. Barnes. Id.

         Further, plaintiff alleges that on February 9, 2017, Captain Swainn advised him that the water to the shower in his cell had been turned off to insure that plaintiff did not use the shower, because it was not a shower approved under the Americans with Disabilities Act. Case II, ECF 1-1 at 17. He was advised that if he wanted to shower he needed to do it during the 7 am-3 pm shift in a different area. Id. Plaintiff states that the alternative shower was not ADA approved either, as it was not wheelchair accessible nor did it have an attached shower chair. Id.; see also id. at 25-34. (Plaintiff's ADA complaint forms filed with the ADA Coordinator for Baltimore County).

         Plaintiff indicates he advised all medical staff of the numbness in his right leg when he gets out of bed for the day. Id. at 17. He claims that Dr. Barnes refused to address the issue despite other medical providers submitting sick call forms on his behalf. Id. at 17-18. Further, he claims that he advised medical staff of his desire to comply with the tasks assigned but needed to do them when blood was circulating or he had sensation in his leg. Id. at 18. According to plaintiff, being forced to shower and exercise during the day shift placed him at a risk of harm due to the numbness in his leg during that portion of the day. Id. at 19.

         In addition, plaintiff alleges that Dr. Barnes tried to force him to do exercises and threatened to take his walker away if he did not do the exercises when she wanted him to. Id. at 21-23. He claims that Dr. Barnes required him to complete the physical therapy exercise during specific times, not at night as he had been doing, despite plaintiff explaining that “he did not have any feeling in his right leg.” Id. at 21. Plaintiff also explained that the physical therapist had directed him to wait to do the exercises until the “pins and needles sensation” has subsided.” Id. at 21, 22, 23. Plaintiff alleges that Dr. Barnes directed his therapy be done in the “‘bull pen'” in the medical unit on a 1.5 inch pad, which plaintiff indicates is not appropriate due to the weakness he experiences. Id.

         According to plaintiff, as a result of filing a civil rights case, his walker was removed, physical therapy was decreased, and his medical documentation revised to indicate he could walk without an assistive device. Case II, ECF 1-1 at 35. He also claims that he was transported from BCDC to JCI on the floor of the vehicle rather than in a seat, and that after review of his medication documentation at the Jessup Regional Hospital “it was determined that the previous treatments, including physical therapy, were not effective and a consultation with a nerve specialist would be necessary to determine the next course of treatment.” Id.

         B. Defendants' Responses

         1. Medical Defendants

         The Medical Defendants argue that CCS is entitled to dismissal as there is no repondeat superior liability in § 1983 cases. Case II, ECF 24-1. Further, defendants argue that CCS and Zowie Barnes are entitled to summary judgment as plaintiff has failed to show he suffers from a serious medical need or that defendants were deliberately indifferent to that need. Id. at 4. Defendants' motion is accompanied by 50 pages of unauthenticated medical records. ECF 24-3; ECF 24-4; ECF 24-5..

         2. County Defendants

         The County Defendants maintain that plaintiff has failed to allege any facts to support either an Eighth or Fourteenth Amendment violation. ECF 27-1 at 1. They also claim that he has failed to state a claim of deliberate indifference to a serious medical need, and that based on the record before the court, they are entitled to judgment as a matter of law. Id. at 15. The County Defendants also contend that BCDC is not an entity amenable to suit (id. at 15) and that they are otherwise entitled to qualified immunity. Id. at 16.

         The County Defendants' Motion is accompanied by the affidavits of Bonita Cosgrove (ECF 27-2) and Stephen Verch (ECF 27-3). Cosgrove and Verch affirm, based upon their personal knowledge, that Cosgrove investigated plaintiff's complaints regarding the denial of prescribed physical therapy as well as his complaints regarding the proper shoes to be worn during his home exercise regimen. ECF 27-2; ECF 27-3. Each investigation concluded with a determination that the issues had been resolved and Cosgrove reported her findings to Verch. Id. The affidavits also rely on exhibits ECF 27-4, ECF 27-5, ECF 27-6, ECF 27-7, and ECF 28-7. Those exhibits are not authenticated, however.

         II. Standard of Review


         A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham,846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd,822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli,616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom. McBurney v. Young,569 U.S. 221 (2013); Edwards v. City of Goldsboro,178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts ...

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