United States District Court, D. Maryland
L. Hollander United States District Judge
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.
ELH-16-3932 (“Case I”), filed on December 8,
2016, plaintiff sued BCDC. Id., ECF 1. In supplemental
complaints (ECF 4, ECF 5, ECF 6),  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
5, 2017, plaintiff filed Mondowney v. BCDC, et al.,
Civil Action No. ELH-17-1538 (“Case II”), with
numerous exhibits. 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.
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. The Medical Defendants have
replied. Id., ECF 32.
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.
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.
Plaintiff's factual assertions
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. 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.
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.
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.
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.
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.
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.
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
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.
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).
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.
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.
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.”
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..
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.
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.
Standard of Review
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 ...