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Stemple v. Gelsinger

United States District Court, D. Maryland

September 19, 2018

MICHAEL RAY STEMPLE, #370-484, #1373712 Plaintiff,
v.
DENISE GELSINGER, Acting Warden, MCI-H, RICARD GRAHAM, Warden, WCI, RICHARD DOVEY, Warden, JCI, SERGEANT LANE, SERGEANT MOONEY, CAPTAIN ROLAND, LIEUTENANT ROMAN, LIEUTENANT MCFARLAND, and HETTIE WILSON, PA, [1] Defendants.

          MEMORANDUM

          Catherine C. Blake United States District Judge.

         Michael Ray Stemple is incarcerated at the Maryland Correctional Training Center in Hagerstown, Maryland (MCTC). In this consolidated action, Stemple alleges that defendants failed to protect him from harm when he, was assaulted at Jessup Correctional Institution (JO) on May 21, 2017, provided inadequate medical care, and, after the assault, improperly placed him in segregation housing. ECF 1, 3, 9. Defendants, Richard J. Graham, Jr., Warden of Western Correctional Institution ("WCI"), Denise Gelsinger, Acting Warden of Maryland Correctional Institution-Hagerstown ("MCI-H"), Richard Dovey, Warden of MCTC, John Wolfe, Warden of JCI, Lt. McFarland, Lt. Roman, Captain Roland, Sgt. Lane, and Sgt. Mooney[2] (collectively, the State Defendants), by their attorneys, move, pursuant to Fed.R.Civ.P. 12(b) to dismiss the complaint, or in the alternative, move pursuant to Fed.R.Civ.P. 56 for summary judgment. ECF 23. Defendant Hettie Wilson, P. A., by her counsel, separately moves for dismissal pursuant to Fed.R.Civ.P. 12(b) or in the alternative for summary judgment pursuant to Fed.R.Civ.P. 56. ECF 35. Stemple filed oppositions to both motions. ECF 27, 39.[3] The State Defendants and Wilson filed separate replies. ECF 30, 40. Also pending are Stemple's self-titled motions to intervene (ECF 34, 44) and to compel (ECF 41), which include requests for appointment of counsel.

         Having reviewed the pleadings, briefs, and exhibits, the court finds that a hearing is unnecessary to decide the motions. See Local R. 105.6 (D. Md. 2016). For the reasons set forth below, the motions to intervene (ECF 34, 44) and to compel (ECF 41) will be denied. Defendants' dispositive motions (ECF 23, 35) will be treated as motions for summary judgment and GRANTED.

         BACKGROUND

         Stemple filed Civil Action No. CCB-17-1539 on June 2, 2017, and Civil Action No. CCB-17-1782 on June 28, 2017. The court ordered the cases consolidated on August 17, 2017. ECF 8. On October 18, 2017, the court dismissed defendant inmate Calvin Carter. ECF 20.

         I. Stemple's Allegations

         Stemple states that on August 16, 2016, while incarcerated at MCI-H, he was investigated as a member of the Aryan Brotherhood (AB), a security threat group. ECF 9 at p. 2. He explains that two days before, on August 14, 2016, an inmate at JCI was killed in what Stemple asserts was a conflict between members of the AB and Dead Man Incorporated (DMI), another security threat group. Stemple claims to not be an AB member, and notes that he bears no tattoos or other marks associated with the group. ECF 9-1 at p. 5; ECF 9 at p. 5.

         On December 5, 2016, Stemple was transferred to WCI where he was housed "behind door" until May 5, 2017, when he was sent to JCI. ECF 9 at p. 2; see also Traffic History, ECF 23-6 at p. 4 (showing Stemple's assignment to administrative segregation at WCI). Stemple alleges that DMI gang members at WCI who had been at MCI-H assumed he was a member of AB because he had been housed with AB members. ECF 9 at pp. 5, 6. When Stemple questioned his housing situation at WCI, Stemple alleges that Lieutenant McFarland told him that "MCI-H has placed a very big bull's eye on his back." ECF 9 at p. 5; ECF 9-1 at p. 5.

         Stemple alleges that on May 4, 2017, at 1:00 a.m. he was told that he was being transferred to JCI. ECF at p.6. Stemple refused to pack his belongings and asked to see a lieutenant because JCI was where it "all started." ECF 9 at p. 6. The unidentified correctional officer returned and said that he had been mistaken, Stemple was going to MCTC. The following day, Stemple was sent to MCTC, where he was placed on a bus and transferred to JCI. ECF 9 at p. 6.

         Stemple alleges that when he arrived at JCI "the intel stated to me this was a no DMI compound." ECF 1 at p. 2. Sergeant Lane told him that no DMI members were allowed at JCI. ECF 9 at p. 6. Stemple asserts that even though he did not sign a body waiver consenting to placement in the general prison population at JCI, he was placed in the general population. ECF 1 at pp. 2-3; ECF 9 at pp. 2, 6; see also Traffic History ECF 23-6 at p. 4 (indicating general population housing). Stemple avers that he told Sergeant Mooney three times that he had "issues" with his cellmate Calvin Carter, who claimed he was a friend of the DMI inmate who was killed at JCI. ECF 9 at p. 7; ECF 9-1 at p. 3. Mooney promised to talk to Stemple, but never did. ECF 9 at p. 7; ECF 9-1 at p. 3.

         Stemple claims that on May 21, 2017, Carter stabbed him three times in the shoulder. Stemple was sent to the University of Maryland Medical System (UMMS) Shock Trauma Center for treatment. ECF 1 at p, 1. Stemple claims he was used as a "lab rat" to see whether it was safe for other AB inmates to come off protective custody. ECF 9 at p. 2; ECF 1 at p. 3.

         After Stemple returned from UMMS on May 21, 2017, he was placed on administrative segregation at JCI, and he alleges his medical needs were not addressed there. ECF 9 at pp. 7-8; ECF 1 at p. 2. Stemple alleges Lieutenant Roman and Captain Roland assured him he would "stay behind door" until he healed. ECF 9 at pp. 7-8. Stemple claims he had to argue with the correctional officers to have his bandages changed because they told him there was no paperwork. Stemple asserts he was never given paperwork to sign putting him on protective custody and "yet they thought I was in hospital." ECF 9 at p. 9.

         Stemple alleges that he was denied medical care from May 22, 2017 to July 21, 2017. ECF 9-1 at p. 3. He alleges that he went without any medical care for over 33 days as of June 24, 2017. ECF 9 at p. 7-8. He claims that he did not receive his chronic care medications, had to clean his own stab wounds, and received no medication to alleviate his pain. ECF 9 at p. 8. He asserts he was denied access to a physician, causing him to suffer numbness in his hands and arms, pain in his shoulders, and unspecified issues regarding his neck. ECF 9 at pp. 8-9. He claims he attempted to file administrative remedy procedure requests (ARP) about his medical concerns, but correctional officers at JCI told him that they must be signed by a lieutenant or a higher ranking officer. ECF 9 at p. 8. Stemple alleges that Defendant Wilson told him that she cannot treat his stab wounds or provide him medications. ECF 9 at p. 8.

         Stemple seeks damages for pain, suffering, and future medical bills. He asks to be provided medical care by an outside physician. ECF 9-1 at p. 6; ECF 9 at p. 10. In his "Motion to Compel" Stemple appears to ask the court to hold Wilson liable for failing to respond beyond his chronic care needs for headaches and lower back pain and to address his issues arising from his May 21, 2017 stabbing. ECF 41 at pp 1-2.

         In his motions to intervene, Stemple states that after his transfer from JCI to MCTC, he was assaulted with a razor blade on April 9, 2018, by a "so called DMI gang member," and needed 8-9 stitches for the laceration on his neck. ECF 34 at p. 1; ECF 44 at p, 1. He states he is again "behind the door." ECF 34 at p. 2. He claims his neck and hands still go numb and he is being denied medical care for his chronic lower back pain. ECF 34 at pp. 1, 2. Stemple asks "the Court and the Attorney General's Office to intervene" on his behalf to provide medical care or a doctor. ECF 34 at pp. 1, 4. Stemple states "MCTC has done actually nothing but sent actual DMI members who called the shot to hit me out [sic]of MCTC. Yet put me on a transfer list to any compound." ECF 44 at p. 1. He claims he is being denied medical care, is in pain, and no detective has contacted him in regard to either assault. ECF 44 at p.2. He asks for legal counsel to represent, him. ECF 34 at p. 3.

         Stemple may present his claims arising from the assault at MCTC in his later filed case, Stemple v. Warden, Civil Action CCB-18-2573, now pending before this court. The court notes that Stemple acknowledges in these motions that he is in administrative segregation housing at MCTC for his safety and his medical record demonstrates that he has received ongoing treatment for his chronic pain concerns. Thus, there are at this time no extraordinary circumstances in his motions to warrant appointment of counsel.

         To the extent Stemple is seeking preliminary injunctive relief, he must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc. 555 U.S. 7, 20 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689-90 (2008); Amoco Prod Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12 (1982)); see also Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 345 (applying the preliminary injunction standard set forth in Winter). Stemple does not address these standards, and for reasons apparent in this memorandum, fails to establish he is likely to succeed on the merits.

         II. State Defendants' Response

         The State Defendants filed declarations and verified copies of Stemple's medical records with their Motion for Summary Judgment. ECF 23. These records show that on August 16, 2016, Stemple, then incarcerated at MCI-H, asked Lieutenant Mary Louk to place him on administrative segregation for his protection because he had associated with some AB members. Louk declares that Stemple told her that due to gang violence at another correctional institution involving AB Stemple felt he was being targeted, was not comfortable in the general prison population, and wanted to be placed "behind the door." Decl. of Lieutenant Louk, ECF 23-4 ¶ 3. At the time, Stemple was not flagged as being a gang affiliate. ECF 23-4 ¶ 5; ECF 23-4 at p. 3. Louk explains that members of the AB were being placed on state-wide lock-up for safety and security reasons due to gang violence at another facility. ECF 23-4 ¶ 4. Based on Stemple's request, Louk wrote an administrative segregation investigation report the same day recommending Stemple's placement on administrative segregation pending investigation of his safety concerns. ECF 23-4 ¶ 6; ECF 23-4 at p. 3. Stemple was assigned to administration segregation the same day, August 16, 2016. ECF 23-5 at 3; ECF 23-4 ¶ 7. From December 2015 until December of 2016, when Stemple was transferred out of MCI-H, he did not file any ARPs about these issues. Decl. of Betty McNamee, MCI-H, ECF 23-5 ¶ 2.

         On December 5, 2016, Stemple was moved to WCI where he was offered housing in the general prison population. ECF 23-6 at p. 5; Decl. of Lieutenant McFarland, ECF No. 23-7 ¶ 4. McFarland states Stemple was "formerly flagged as AB, but after investigation it was determined he was tagged erroneously and not affiliated with AB." ECF 23-7 ¶ 4. Stemple told McFarland and the segregation review board that he wanted to be placed on administrative segregation. ECF 23-7 ¶ 4. Stemple explained that while at MCI-H he had been "behind the door" with members of the AB. ECF 23-7 ¶ 4; see also ECF 9 at p. 5 (asserting that WCI housed "a lot of DMIs"). Stemple met monthly with the segregation review board to discuss his housing status. ECF 23-7 ¶ 5. At one meeting, Stemple asked to be transferred from WCI to an institution where he could live in the general population so that he could work to earn diminution credits and pay. ECF 23-7 ¶ 6; see also Inmate Request dated March 26, 2017, Decl. of Tennile Winters, ECF 23-8 (requesting transfer to earn days and pay). Stemple was informed at a subsequent meeting that he would be transferred to JCI. ECF 23-7 ¶ 7. McFarland declares that he did not make the decision to transfer Stemple to JCI and, at that meeting, Stemple did not object to the transfer. ECF 23-7 ¶¶ 7, 8.

         Stemple arrived at JCI on May 5, 2017. ECF 23-6 at p. 4. Sergeant Mooney states in his declaration that he never had any conversations with Stemple. Decl. of Sergeant Mooney, ECF 23-15 ¶ 3. Mooney declares that before May 22, 2017, -he had no information to lead him to believe that Stemple was in "any particular, substantial, or extreme risk to his health or safety by his cellmate or any other inmate." ECF 23-15 ¶ 4. Further prison records indicate that Calvin Carter is not a member of DMI or affiliated with any prison gang. Decl. of Susan Shumaker, ECF 30-1 at ¶3; see also Decl. of Warden Wolfe, ECF 23-11 ¶ 6 (declaring "[i]n May 2017, because of past gang violence, JCI did not house any known members of the DMI gang"). Importantly, Stemple provides no declaration, verified exhibits, or other information to refute this information.

         On May 21, 2017, at approximately 1:35 p.m. correctional officers in the dayroom in D-Building, A-wing, observed Stemple with blood on his shirt. ECF 23-6 at p. 17. Stemple was taken first to the prison medical department for evaluation and then to UMMS. ECF 23-6 at pp. 18-21, 38. Stemple left JCI for UMMS at 2:30 p.m. ECF 23-9 at pp. 76, 77, 80; ECF 23-6 at 38. Stemple returned to JCI that evening, was examined by medical personnel, cleared to return to custodial housing with medical follow-up, and assigned to segregation housing pending investigation of the assault. ECF 23-9 at pp. 12, 13; ECF 23-6 at p. 39-40.

         Detective Dominic Bonvegna of the Internal Investigation Division (IID) began his investigation of the stabbing on the same day as the incident. IID Report, ECF 23-10; see also ECF 23-6 at pp. 17, 18. Bonvegna's review of the Serious Incident Report found there was no surveillance footage of the incident because the video camera was not working, no weapons were found at the crime scene, and no officers had witnessed the incident. ECF 23-10 at 7; see also ECF 23-10 at 19, ECF 23-6 at 12, 13.

         On October 4, 2017, when Bonvegna interviewed Stemple at MCTC, Stemple told him that Carter had stabbed' him.[4] ECF 23-10 at p. 7. Calvin Carter denied the allegation. ECF 23-10 at 6, 7; ECF 23-6 at p. 48. Bonvegna's IID report states:

Stemple stated that he had confronted Inmate Carter about taking some of his belongings. Inmate Stemple also stated that Inmate Carter also thought he was associated with the Aryan Brotherhood (AB).
Inmate Stemple stated that while he was at Maryland Correctional Institution-Hagerstown, (MCI-H) he was housed with AB members and everyone assumed that he was part of AB. Inmate Stemple advised that he feels the prison did this on purpose. Inmate Stemple advised that he is always housed with AB members and he feels that because of this he was assaulted by Inmate Carter.

ECF 23-10 at p. 7.

         Stemple told Bonvegna that inmates "Shawn" and "Squirrel" witnessed the attack. ECF 23-10 at p. 7. Bonvegna contacted inmates Shawn Parks and Ronald Jones ("Squirrel"). Parks said he did not see the incident, and Jones said he saw Carter stab Stemple, but was unwilling to testify in court. ECF 23-10 at p. 7. Bonvegna concluded that "[b]ased on the fact that there is no surveillance video of the incident and the only witness to the incident," Ronald Jones, was unwilling to testify, "I request that a copy of this case be sent to the Maryland State's Attorney's Office of Anne Arundel County for further review." ECF 23-10 at p. 8. The case was forwarded to the State's Attorney for Anne Arundel County on November 30, 2017, for further evaluation. Decl. of Britt Brengle, ECF 23-10 at p. 1. Stemple was transferred from JCI to MCTC on July 21, 2017. ECF 23-6 at p. 4.

         Medical services are provided to inmates by a private corporation that contracts with the Department of Public Safety and Correctional Services. Decl. of Warden John Wolfe, ECF 23-11 ¶ 2; Decl. of Warden Richard Dovey, ECF 23-12 ¶ 2. Neither the Warden nor correctional employees are personally involved in-providing medical care to inmates, prescribing medications or particular treatments, or recommending a particular treatment or procedure. An inmate can fill out a sick call slip to request medical evaluation and treatment. Inmate sick call slips are collected and reviewed by the medical contractor's personnel who schedule appointment dates. ECF 23-11 ¶ 3; ECF 23-12 ¶ 3. Wardens Wolfe and Dovey declare that neither they nor their employees have interfered with, hindered, or delayed medical treatment or care to Stemple. ECF 23-11 ¶ 5; ECF 23-12 ¶ 5; see also Decl. of Sergeant Mooney, ECF 23-15 ¶ 5.

         III. Wilson's Response

         Hettie Wilson, P.A. filed 109 pages of Stemple's medical records in support of her dispositive motion. ECF 35-4. Wilson saw Stemple three times: June 9, 22, and 29, 2017. ECF 35-4 at pp. 16-18, 19-21. Stemple's medical care during the times relevant to his complaint are summarized below.

         On May 20, 2017, Mathew Carpenter, P.A. saw Stemple for complaints of headaches occurring every other day. Stemple reported suffering migraine headaches his entire life and explained that using distance vision triggers headaches. ECF 35-4 at pp. 2, 39; Decl. of Erwin Aldana, M.D. ECF 35-5 ¶ 7. Carpenter requested an optometry consultation for Stemple, discontinued his headache medicine, Fioricet, and started him on Excedrin Tension Headache. Carpenter increased Stemple's Neurontin to treat his back pain and discontinued his prescriptions for Baclofen and Nortriptyline. Carpenter also ordered an x-ray of Stemple's back and gave him information on back exercises. ECF 35-4 at pp. 2r4.

         Stemple was stabbed the next day, May 21, 2017. Jewaher Abubaker, P.A. examined Stemple at JCI following the assault. Stemple was bleeding profusely from two deep stab wounds to both upper shoulders. Stemple also complained of neck pain. ECF 35-4 at p. 6. Abubaker cleaned the wounds and applied pressure dressing to control the bleeding. Stemple was sent to the emergency room at UMMS for evaluation and treatment, where he was prescribed a one-time dose of Tylenol # 3.[5] ECF 35-4 at pp. 6, 92. Stemple's CT scan revealed no evidence of damage to vital organs and he was discharged with plans for wound care and pain management, and to follow-up in two days. ECF 35-4 at p. 9, 10. He was released back to DPSCS with a recommendation to use Motrin or Tylenol for pain. ECF 35-5 ¶ 4.

         On May 22, 27, and 29, medical staff cleaned Stemple's wounds and applied a dry dressing. There were no signs of infection. ECF 35-4 at pp. 12-14, 94; ECF 35-5 ¶ 5 (stating Stemple received wound care and cleaning for six days).

         On June 9, 2017, Wilson saw Stemple at sick call for complaints of upper back pain from his stab wounds. ECF 35-4 at p. 16. Stemple stated his medications were ineffective. He was taken off Baclofen, his Neurontin was increased and he was placed on Nortriptyline. ECF 35-4 at p. 16. Stemple said his pain had worsened because it was not being managed with his previous medications, which helped him, and claimed his new injury aggravates his pain. ECF 35-4 at p. 16. Wilson prescribed Tylenol 500 mg. and a one-time dose of Mobic for pain relief. ECF 35-4 at p. 17.

         Wilson's medical notes indicate that Stemple was seen on June 22, 2017, but the changes made to his medications on that date were not reflected in the EPHR (Electronic Personal Health Record). On June 22, 2017, Stemple's Tylenol and Excedrin were discontinued because they were not relieving his headache pain. ECF 35-4 at p. 19. Because Stemple mentioned that Fioricet had provided relief in the past, Wilson prescribed Fioricet for him and ordered an optometry consultation, noting his vision complaints and headaches might be associated with a need for glasses. Stemple also was prescribed Baclofen. Wilson discontinued Stemple's Nortriptyline prescription because it made Stemple sick to his stomach. Wilson renewed Stemple's other medications, started him on fish oil for his high cholesterol, and ordered a physical therapy consultation. ECF 35-4 at pp. 19, 21, 22.[6]

         On July 18, 2017, Titilayo Otunaga, N.P. saw Wilson for shoulder and neck pain which Stemple rated as 10 out of 10. ECF 35-4 at p. 24. Otunaga observed Stemple had approximately 1 cm healed stab wounds on both shoulders, full range of motion with tenderness, and mild swelling at the base of the left side of his neck at the proximal clavicle. ECF 35-4 at p. 24. Otunaga ordered an x-ray of Stemple's left shoulder. ECF 35-4 at p. 24. Stemple reported Tylenol and Motrin did not relieve his pain, so Otunga increased his Baclofen to 20mg twice daily. ECF 35-4 at pp. 24-26.

         On July 21, 2017, Stemple was transferred to MCTC. ECF 23-6 at p. 4.

         On August 17, 2017, Monica Stallworth, M.D., examined Stemple in the Chronic Care Clinic at MCTC for pain management. ECF 35-4 at p. 28. She renewed his prescription for Neurontin. ECF 35-4 at p. 28. The medical records show Stemple had active prescriptions for Fioricet and Baclofen. ECF 35-4 at p. 28. Stallworth ordered follow-up appointments in the Neurology, Internal Medicine, and Pain Management Clinics to be scheduled. ECF 35-4 at pp. 30.

         On August 31, 2017; Stemple complained to Harlan E. Woodward, RN, of constant and daily pain in his left shoulder collarbone area where a knot was also visible. ECF 35-4 at p. 32. He asserted that he was experiencing constant numbness in both of his arms and hands. ECF 35-4 at p. 32. He claimed that he had not received treatment for these problems stemming from his stabbing on May 21, 2017. ECF 35-4 at p. 32. Woodward's examination showed two 1/8 inch healed scars. ECF 35-4 at p. 32. Stemple reported the area of the scar was tender to the touch. ECF 35-4 at p. 32. There was no swelling or heat, although sun exposure or sun burn at the area was noted. ECF 35-4 at p. 32. The medical notes indicate Stemple was unable to raise his left arm above shoulder height. ECF 35-4 at p. 32. Stemple had full range of motion (ROM) of his head and neck. ECF 35-4 at p. 32. Stemple said he performs his activities of daily living (ADL) every day, including dressing himself. ECF 35-4 at p. .32. Woodward recommended Stemple ...


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