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Germain v. Bishop

United States District Court, D. Maryland

March 12, 2019

JEAN GERMAIN, Plaintiff,
WARDEN FRANK BISHOP, JR., and BRUCE A. LILLER, Chief of Psychology, Defendants.



         In its Memorandum Opinion and Order dated March 23, 2018, the Court granted in part and denied in part the Motion to Dismiss or, in the Alternative, Motion for Summary Judgment ("First Motion for Summary Judgment") filed on behalf of Defendants Frank Bishop, Jr., Warden of North Branch Correctional Institution ("NBCI"), and Bruce A. Liller, Chief of Psychology at NBCI, and granted summary judgment in favor of Defendants William Beeman, R.N., the Assistant Director of Nursing at NBCI; Janette Clark, a Nurse Practitioner at NBCI; Krista Bilak, a Registered Nurse Practitioner at NBCI; and Wexford Health Sources, Inc., NBCI's contracted medical services provider. The claims remaining against Defendants Bishop and Liller ("Defendants") relate to Plaintiff Jean Germain's allegations that, following an alleged assault by correctional officers with a chemical agent, Germain was denied psychological services for serious mental health needs, and that he was not afforded special handcuffing procedures to accommodate his shoulder injury as required by a prior medical order. In its prior ruling, the Court directed Defendants to provide Germain with copies of his mental health treatment records, the handcuffing orders relating to Germain, and any applicable handcuffing policy.

         Following the Court's decision, Germain filed a Motion to Alter or Amend the Judgment ("Motion to Alter or Amend"), which is opposed by the relevant Defendants. Defendants have now filed a renewed Motion to Dismiss or, in the Alternative, Motion for Summary Judgment ("Second Motion for Summary Judgment"), attaching extensive portions of Germain's mental health treatment records, which they move to place under seal. After the Motion was fully briefed, Germain filed a Motion for Appointment of Counsel and a Motion for Leave to File a Surreply. For the reasons stated below, Germain's Motion to Alter or Amend will be denied, Defendants' Motion to Seal will be granted, Germain's Motion for Leave to File a Surreply will be granted, Germain's Motion for Appointment of Counsel will be denied, and Defendants' renewed Motion for Summary Judgment will be granted.


         The Court set forth the background facts of this case in its prior Memorandum Opinion on the First Motion for Summary Judgment and incorporates that discussion by reference. Germain v. Bishop, No. TDC-15-1421, 2018 WL 1453336, at *1-4 (D. Md. Mar. 23, 2018) ("Germain I”). The Court therefore summarizes only those facts necessary to resolve the remaining motions.

         I. Mental Health Treatment

         According to Germain, on March 4, 2015, he was attacked by correctional officers and pepper-sprayed, including in his rectal area. Germain, who was already receiving psychiatric medication, began a hunger strike. During medical examinations on March 7, 2015 and March 11, 2015 in response to his hunger strike, doctors referred Germain for a mental health evaluation. On March 13, 2015, Germain met with Norma Holwager, a member of the Psychology Department, but a correctional officer interrupted the meeting, and Holwager did not return the following Monday as promised and did not respond to requests and letters he sent to her. Starting on March 16, 2015, Germain submitted a series of sick call requests in which he reported hearing voices, having anxiety attacks, and having nightmares as he relived the March 4, 2015 assault.

         Germain claims that Defendants failed to provide adequate psychological care following the March 4, 2015 incident and thus acted with deliberate indifference to a serious medical need, in violation of the Eighth Amendment to the United States Constitution. In denying the First Motion for Summary Judgment as to this claim, the Court concluded that it could not resolve the matter because Defendants had failed to submit Germain's mental health treatment records for the relevant time period. Germain I, 2018 WL 1453336, at *8.

         According to the records now submitted by Defendants, Germain received mental health care and treatment on a regular basis between February 2015 and April 2018, including after the March 4, 2015 incident. Prior to that incident, Germain had experienced anxiety and depression that caused him to seek to avoid having a cellmate. As of February 26, 2015, when Germain's medications were reviewed during a visit with Dierdre Mull, a nurse practitioner, Germain was taking various medications for these conditions, including Zoloft, Perphenazine, and Doxepin.

         Following the March 4 incident, after Germain had instituted a hunger strike, he was examined on March 7, 2015 by Dr. Colin Ottey, who requested a psychological consultation for Germain. Dr. Mahboob Ashraf made a similar request on March 11, 2015. Germain was then seen on March 13, 2015 by Holwager. After the visit was interrupted by a correctional officer, Germain wrote to Holwager on March 16, 2015 and March 18, 2015 asking to meet again. In the meantime, by March 16, 2015, Germain had ended his hunger strike.

         In another letter to Holwager dated March 25, 2015, Germain stated that he had recently been sexually assaulted by a "prison guard" but was not receiving mental health treatment despite Dr. Ottey's referral. Mental Health Records at 14-16, ECF No. 99. After acknowledging that Holwager had appeared genuinely concerned about his well-being, Germain expressed his disappointment that his meeting with Holwager had been interrupted and that Holwager had allowed security staff to move another inmate into his cell. Germain referenced the Prison Rape Elimination Act ("PREA"), stated he was "reliving" the March 4, 2015 assault, suffering daily anxiety attacks, and hearing voices. Id. According to Germain, Holwager did not respond. On March 24, 2015 and March 29, 2015, Germain submitted sick call requests reporting anxiety attacks and seeking treatment. In his March 29, 2015 request, he stated that his psychiatric medication was not working.

         On April 9, 2015, Germain wrote a letter to filler in which he stated that he had recently suffered a "very traumatic event" that worsened his anxiety disorder. Mental Health Records at 17, ECF No. 99. Germain requested to see Liller to be evaluated for placement in the Special Needs Unit ("SNU"). On April 19, 2015, Germain began another hunger strike. When he was seen by Dr. Ashraf on April 21, 2015 in response to the second hunger strike, Dr. Ashraf told Germain that he would request that Liller arrange for Germain to receive mental health services.

         The following day, on April 22, 2015, Germain was seen by Laura Beitzel, a Licensed Graduate Professional Counselor. During that visit, Germain stated that he had been sexually assaulted and had personal belongings stolen. He stated that his psychiatric medications were not working, that he had unspecified pain, and that he had had an anxiety attack in the medical unit. However, Beitzel observed that Germain was alert, oriented, and cooperative, had good hygiene, reported satisfactory sleep and appetite, and denied any suicidal or homicidal ideations. The only symptom of anxiety he identified was an increased heart rate. Based on her observations, his prior diagnoses of anxiety and depressive disorder, and the medications already prescribed, Beitzel noted that Germain did not qualify as seriously mentally ill. When Beitzel checked with the social worker assigned to Germain's housing unit, she was advised that Germain's PRE A claim had been reported, investigated, and dropped due to lack of evidence.

         On May 8, 2015, after Germain submitted a sick call request relating to his anxiety, he was seen by Mull. He again referenced the alleged sexual assault, stated that his medication was not working, and reported severe anxiety and constant worry. Having observed that Germain appeared very anxious and spoke rapidly, but showed no signs of psychosis, Mull increased Germain's Zoloft dosage, added another medication, Vistaril, for severe anxiety and agitation, and planned for a follow-up visit in four weeks.

         On June 9, 2015, Beitzel met with Germain again because Germain was seeking a referral to the SN U.She noted that Germain appeared alert, oriented, and cooperative, but that he often rambled and required redirection. As during her last visit with Germain, she observed that Germain's hygiene, grooming, and sleep and eating patterns were satisfactory. She also noted that most of Germain's prior claims proved to be without merit and referenced his recent claim relating to an alleged assault by an officer with mace as an example. Based on Germain's history and her encounter with him on this occasion, Beitzel concluded that his current reported symptoms and request for placement in the SNU appeared to be a continuation of his desire to avoid being placed in a double cell.

         On June 17, 2015, Germain was examined by Dr. Vincent Siracusano relating to his ongoing diagnosis of depression. Germain reported continuing anxiety but stated that he was not depressed. The doctor concluded that the prescribed medications had resulted in moderate improvement and recommended continuing with the same regimen. During a September 16, 2015 follow-up visit, Germain reported nightmares relating to his alleged abuse by officers. The doctor observed that Germain was not suicidal or depressed, concluded that he was doing "fairly well" with the current medication, and did not alter his prescriptions. Mental Health Records at 54. On December 15, 2005, Germain had another visit with Dr. Siracusano, who again found that the medication had resulted in moderate improvement with depression. Beginning on November 23, 2015 and continuing through April 28, 2017, Germain attended group therapy sessions.

         II. Handcuffing

         Germain's second remaining claim is that he was not properly handcuffed by correctional officers, in contravention of a medical order requiring special handcuffing due to his shoulder and neck pain. According to Germain, because of his chronic shoulder pain, he received an order from NBCI medical staff requiring that he "be cuffed using a special pair of handcuffs with a longer chain to alleviate his shoulder pain," also referred to as "double cuffing." Compl. ¶ 10, ECF No. 1. Germain alleged that this order was later rescinded "at the request of custody staffs claiming security reasons," but without providing a specific security justification. Mot. Amend. ¶¶ 5-6, ECF No. 20. Germain recounted a specific incident, on May 26, 2015, when although Germain told the correctional officers assigned to escort him to another facility that he had a medical order stating that he had "double cuff only status," they ignored his claim and sought to handcuff him behind his back using a standard-length chain. Supp. Compl. ¶ 3 at 4, ECF No. 7. The Court denied Defendants' First Motion for Summary ...

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