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Jardina v. Department of Public Safety and Correctional Services

United States District Court, D. Maryland

December 17, 2018

JAMES J. JARDINA, #418-567 Plaintiff,


          James K. Bredar Chief Judge

         Pending 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).

         I. Background

         Jardina 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 bag.[1] 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.[2] ECF 1 at 5.

         Jardina 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.

         On 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 21.

         The Court incorporates by reference here the facts and standard of review set forth in its March 3, 2017, Memorandum Opinion. ECF No. 51.

         Jardina 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.

         On 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].”).

         On 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.

         On 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.

         II. Motion for Appointment of Counsel

          A federal district court judge has discretionary power to appoint counsel under 28 U.S.C. § 1915(e)(1),[3] 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 of counsel).

         Upon 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 denied.

         III. Amended Complaint

         Jardina 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”;[4] (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.

         IV. Timeline

         Jardina 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.[5] 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 ΒΆ 5; ECF 80-2 at 7; ...

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