United States District Court, D. Maryland
JAMES J. JARDINA, #418-567 Plaintiff,
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES et al., Defendants.
K. Bredar Chief Judge
are self-represented Plaintiff James J. Jardina’s
verified Amended Complaint (ECF No. 65) and Defendants Warden
Richard Graham and former Assistant Warden Denise
Gelsinger’s Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment (ECF 80). Jardina filed an
opposition to the dispositive motion supported by
declarations under oath. ECF 85. The Court will consider the
verified exhibits and declarations submitted by Graham and
Gelsinger and treat the Motion as one for summary judgment.
ECF 80. Also before the Court is Jardina’s Motion for
Appointment of Counsel, which will be denied. ECF 89;
see Local Rule 105.6 (D. Md. 2018).
is a Maryland inmate who describes himself as
“wheelchair bound” and handicapped. Compl. ECF 1
at 4. When he first arrived at Western Correctional
Institution (WCI), Jardina used a walker and an ileostomy
Jardina Decl. ECF 85-1 at 1 ¶ 4; ECF 85 at 4. His claims
in the initial Complaint arose from his May 6, 2015, fall
from a wheelchair while he was confined at WCI. ECF 1 at 5.
initiated this action on April 27, 2016, by filing a
Complaint pursuant to 42 U.S.C. § 1983 against Wexford
Health Sources, Inc., Robustiano Barrera, M.D., and Beverly
McLaughlin, C.R.N.P. (collectively, the Medical Defendants),
and the Department of Public Safety and Correctional Services
(“DPSCS”), Warden Graham, former Assistant Warden
Gelsinger, and COII Bobby J. Ziler, (collectively, the State
Defendants), raising claims under the Eighth Amendment, the
Americans with Disabilities Act (ADA), and a pendent state
law claim under the Maryland Tort Claims Act. ECF 1-4.
March 3, 2017, the Court granted the Medical
Defendants’ Motion to Dismiss or, in the Alternative,
for Summary Judgment. ECF 52. The Court dismissed all claims
against Wexford. ECF No. 52. Jardina’s claims against
Defendants Barrera and McLaughlin under the ADA, 42 U.S.C.
§ 12131 et seq., were dismissed without
prejudice. Id.; see also Memorandum
Opinion, ECF 31 at 3, 20-21 (noting Jardina had alleged no
facts to state an ADA claim). Compl. ECF 1 at 4. The Court
granted summary judgment in favor of Barrera and McLaughlin
as to Jardina’s claim that they failed to personalize
and maintain a wheelchair for him in violation of his rights
under the Eighth Amendment. ECF 52. Additionally, the Court
granted the State Defendants’ Motion to Dismiss or, in
the Alternative, for Summary Judgment. The Court dismissed
the claims against the DPSCS, dismissed the ADA claims
against Graham, Gelsinger, and Ziler without prejudice, and
entered summary judgment in favor of Graham, Gelsinger, and
Ziler as to Jardina’s Eighth Amendment claims that they
acted with deliberate indifference to his safety regarding
his fall from a wheelchair. Id; see also
Memorandum Opinion, ECF 31 at 3, 20-21 (noting Jardina
alleged no facts to state an ADA claim to show he was
excluded from a program or activity for which he was
otherwise qualified on the basis of a disability); Compl. ECF
1 at 4. The Court declined to exercise supplemental
jurisdiction over Jardina’s state law claim. ECF 51 at
Court incorporates by reference here the facts and standard
of review set forth in its March 3, 2017, Memorandum Opinion.
ECF No. 51.
appealed to the United States Court of Appeals for the Fourth
Circuit. ECF 55. On August 23, 2017, the Fourth Circuit
dismissed the appeal and remanded this case for Jardina to
file an amended complaint, stating that because this Court
had identified a deficiency that Jardina may remedy by filing
an amended complaint, the order Jardina was appealing was
neither a final order nor an appealable interlocutory
collateral order, Jardina v. DPSCS, et al., No.
17-6413 (4th Cir. 2017) (per curiam) (citing Goode v.
Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619,
623-24 (4th Cir. 2015); Domino Sugar Corp. v. Sugar
Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.
1993). ECF 57.
September 15, 2017, this Court granted Jardina twenty-eight
days to particularize his ADA claims against the remaining
defendants. ECF No. 59; see also Complaint ECF 1 at
4 (alleging “Md. DPSCS WCI Medical and Administrative
Staff have knowingly failed to provide reasonable
accommodations to Jardina in violation of the [ADA].”).
December 27, 2017, Jardina filed the Amended Complaint,
asserting claims against Graham, Gelsinger, Barrera, and
McLaughlin. ECF 65. Jardina raised no claims against
Correctional Officer Ziler. Thus, the claims against Ziler
will be dismissed with prejudice.
March 19, 2018, Jardina filed a Motion to Withdraw his claims
against Barrera and McLaughlin without prejudice. ECF No. 75.
Barrera and McLaughlin filed a consent to the Motion. ECF 78.
The Court granted the Motion on March 30, 2018. ECF 79.
Motion for Appointment of Counsel
federal district court judge has discretionary power to
appoint counsel under 28 U.S.C. §
1915(e)(1), where an indigent claimant presents
exceptional circumstances. See Cook v. Bounds, 518
F.2d 779 (4th Cir. 1975); see also Branch v. Cole,
686 F.2d 264 (5th Cir. 1982). There is no absolute right to
appointment of counsel; an indigent claimant must present
“exceptional circumstances.” See Miller v.
Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Exceptional
circumstances exist where a “pro se litigant has a
colorable claim but lacks the capacity to present it.”
See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir.
1984), abrogated on other grounds by Mallard v. U.S.
Dist. Ct., 490 U.S. 296, 298 (1989) (holding that 28
U.S.C. § 1915 does not authorize compulsory appointment
careful consideration of the Motion (ECF 89), Jardina’s
ten-page Memorandum in support, and his previous filings, the
Court finds that Jardina has demonstrated the ability to
articulate the legal and factual basis of his claims himself
or secure meaningful assistance in doing so, obtain necessary
exhibits and documentation, draft declarations, and respond
to Defendants. The issues before the Court are not unduly
complicated. Therefore, there are no exceptional
circumstances to warrant the appointment of an attorney to
represent Jardina under ' 1915(e)(1). The Motion will be
claims that Defendants Graham and Gelsinger (hereinafter
“the Defendants”) are responsible for the daily
operation of WCI, as well as his health and safety. Amended
Complaint, ECF 65 at 2. Jardina claims the Defendants (1)
knew there were large cracks, depressions, and ruts
throughout the sidewalks or pavement at WCI and failed to
take appropriate action to ensure Jardina’s safety as a
“disabled wheelchair bound inmate”; (2) knew
untrained and uncertified inmates worked in the WCI
wheelchair repair shop and exchanged wheelchair parts from
different manufacturers to minimize cost, which made the
chairs unsafe; (3) knew he was housed at times on tiers that
did not have a handicap accessible shower, in violation of
the ADA; (4) knew he was not housed in a handicap accessible
cell at times, denying him the ability to move throughout his
cell; (5) upon his return to WCI from Dorsey Run Correctional
Facility (“DRCF”), placed him in housing unit #3,
which forced him to cross the same area that had not been
repaired and where he was injured in his wheelchair; (6) on
June 10, 2014, denied him access to his walker, forcing him
to live on the floor and crawl to use the bathroom; and (7)
knew that by placing him on the minimum security tier, they
were denying him access to programs, religious services, and
prison jobs because the inmates on the minimum security tier
run programs, services, and activities by themselves. ECF No.
65 at 2-6. As relief, Jardina seeks “a declaration that
the acts and omissions” violated his “rights
under the Constitution,” compensatory damages in the
amount of $400,000, and punitive damages in the amount of
$100,000 from each Defendant. Id.
was housed primarily at WCI from March 6, 2014 to April 12,
2017, when he was transferred to DRCF. Winters Decl., ECF
80-2 pp. 5-8. Dates relevant to this case are as follows:
March 6, 2014, Jardina was transferred to WCI. ECF 80-2 at 8.
March 28, 2014, Jardina was issued a walker. The medical
order was extended on October 22, 2014 for one year. ECF 80-2
at 10-12; ECF 80-3 at 7.
May 8, 2014, Jardina was issued a medical order for
wheelchair use to move distances more than 50 feet. The
medical order was extended on November 11, 2015, and an
inmate was assigned as a wheelchair “pusher” to
assist Jardina. ECF 80-3 at 8-12.
June 10, 2014, Jardina was placed on administrative
segregation after an altercation. ECF 80-2 at 2. ¶ 5;
ECF 80-2 at 7. At Jardina’s request, Dr. Barrera issued
an order to house Jardina alone in a handicap accessible
cell. On the same day, Dr. Barrera rescinded the order after
speaking with the regional administrator. ECF 80-2 at 4
¶ 9; ECF 85-2 at 42.
August 12, 2014, Beverly McLaughlin, R.N., wrote a medical
order to give Jardina access to a handicap shower with grab
bars. ECF 80-3 at 5; ECF 80-3 at 5.
August 16, 2014, Jardina was moved to general population in a
double cell. ECF 80-2 at 2 ¶ 5; ECF 80-2 at 7; ...