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Poling v. Foxwell

United States District Court, D. Maryland, Southern Division

April 3, 2019



          Paul W. Grimm United States District Judge

         For more than eight months, Plaintiff Steven Poling has been without his prescription for Lyrica, which Defendants permitted to expire, despite an Order of the Court not to cease providing Lyrica to Plaintiff without notifying the Court and affording Plaintiff the opportunity to respond. Now pending is Plaintiff's Motion for a Show Cause Order, ECF No. 63, asking the Court to find Defendants in violation of the Court's Order. Because Defendants, in their Response to the Show Cause Order I issued, ECF No. 70, failed to justify the cessation of Plaintiff's receipt of Lyrica, providing only the strained argument that they could not ensure that their medical provider provided adequate care, Plaintiff's Motion is granted.


         On July 26, 2018, following Plaintiff Steven Poling's Motion for Emergency Injunction, ECF No. 20, in which he alleged that he was no longer receiving his prescription medications for pain and “nerves, ” and, as a result, was suffering “intolerable” pain and an inability to “function through his daily activities, ” I ordered that, to the extent Plaintiff currently is receiving Lyrica, the facility may not stop providing Lyrica to Plaintiff without advance notice to the Court, and without providing Plaintiff an opportunity to respond. ECF No. 29. During the months that followed, I appointed counsel to represent Plaintiff, ECF No. 35, and Plaintiff complained repeatedly that he still was not receiving Lyrica, e.g., Line, ECF No. 43 (Defense counsel's October 19, 2018 report that the prescription had expired and not been renewed); Pl.'s Oct. 25, 2018 Status Report, ECF No. 44 (asserting that, as of October 20, 2018, he was not receiving Lyrica and asking Court to enforce previous order); Jt. Status Report, ECF No. 48 (stating that Plaintiff still not receiving Lyrica, despite Plaintiff claiming that “his pain levels have doubled, and that his pain is causing him to wake up every thirty minutes at night”); Pl.'s Dec. 6, 2018 Mot., ECF No. 52 (asserting that his lack of “pain and nerve medications” is rendering him “unable [to] focus or concentrate”); Dec. 10, 2018 Status Report, ECF No. 54 (reporting that Plaintiff “continues to experience significant pain and debility due to the discontinuation of his Lyrica treatment, ” even though he now has been on Cymbalta for three weeks); Dec. 28, 2018 Status Report, ECF No. 57 (Plaintiff reported “excruciating pain” while Defendants reported that “Fioricet, a new addition to Plaintiff's pain management regimen, appears to help with the pain”). Meanwhile, Plaintiff's counsel worked with Defense counsel in an effort to resolve the issue. See Sept. 5, 2018 Status Report, ECF No. 39; Nov. 9, 2018 Status Report, ECF No. 50; Dec. 10, 2018 Status Report; Dec. 28, 2018 Status Report.

         I held a status conference on January 4, 2019, after which I noted that “Plaintiff's appointed counsel's role is expanded so that counsel may represent Plaintiff on medical issues, to include bringing a new cause of action based on the medical care Plaintiff has (or has not) received, ” and “Plaintiff's counsel is authorized to bring in non-parties as defendants insofar as counsel may believe that such parties are necessary in order to obtain full relief.” Jan. 9, 2019 Ltr. Order, ECF No. 59. Additionally, I ordered the parties to continue to “work on an expedited and cooperative basis to see if the new medical provider can address Poling's need for, and receipt of Lyrica immediately, ” and I stated that “[t]his cooperative work shall be without prejudice to Plaintiff filing a show cause motion if necessary.” Id.

         A month passed, and Defendants did not resume providing Lyrica to Plaintiff. Pl.'s Mot. On February 4, 2018, he filed the pending Motion for Order to Show Cause, alleging that “[s]ince October 19, prison officials have refused to provide Lyrica to Plaintiff, ” even though Plaintiff has cooperated with their requirement that he “attend[] a neurological services referral from November 11-13.” Id. He asked the Court to “require Defendants to show cause as to why the Court should not hold them in violation of the Court's July 26, 2018 Order.” Id. I issued a Show Cause Order, ECF No. 65, directing Defendants show cause why the relief Plaintiff requested should not be granted.

         In their Response, Defendants insist that “[t]he gravamen of Plaintiff's issue involves the treatment modality of the medical providers not a denial of access to medical treatment.” Resp. 1. They contend that, because the Defendants, who are the Warden and correctional officers at the prison where Plaintiff is incarcerated, cannot practice medicine, it was not they who denied Plaintiff access to treatment and, because the medical providers were not named as Defendants, the Court cannot order them to provide certain medications. Id. at 1-2; see Gelsinger Decl., ECF No. 70-1. Further, they insist that Plaintiff cannot state a claim against them based on his medical treatment. Defs.' Resp. 2. Defendants also argue that injunctive relief is premature because “Plaintiff was recently evaluated by University of Maryland Medical Systems (‘UMMS') neurologists who proscribed [sic] a course of action involving radiation, ” and in the interim, Plaintiff “is receiving Tylenol 3, Percoset and Fioricet to help with his headaches.” Id.; see Med. Recs., ECF No. 70-2.

         Plaintiff counters that “Defendants are ultimately responsible for the well-being of inmates under the State's care” and, “because Defendants have provided no justifiable excuse for violating the Court's July 26, 2018 Order, the Court should grant Mr. Poling's request for injunctive relief and compel Defendants to ensure that Mr. Poling's Lyrica treatment is resumed.” Pl.'s Reply, ECF No. 72.

         Reach of Injunctive Relief

         Pursuant to Rule 65(d)(2), an order for injunctive relief binds not only the parties and their agents and employees but also “other persons who are in active concert” with the parties, their agents, or their employees. Fed.R.Civ.P. 65(d)(2). “In essence it is that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they are not parties to the proceeding.” Little v. Associated Tech. Training Servs., Inc., 12 F.3d 205 (4th Cir. 1993) (citing Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945)). The reach of the Court's injunction order is limited, however; the third party “must either abet the defendant, or must be legally identified with him.” Id. (quoting Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832-33 (2d Cir. 1930)). Thus, “[a]ction as an alter ego, or in collusion, is required to find concert or participation under [R]ule 65(d).” Seasons Pizza Franchisor, Inc. v. 4 Seasons Pizza & Subs, Inc., No. WDQ-15-739, 2015 WL 9304539, at *3 (D. Md. Dec. 21, 2015) (citing Thaxton v. Vaughan, 321 F.2d 474, 478 (4th Cir. 1963)). Moreover, as with any preliminary injunction, “[t]he court may issue a preliminary injunction only on notice to the adverse party.” Fed.R.Civ.P. 65(a)(1).

         Here, the previous and current medical providers, Wexford and Corizon, work with Defendants to provide medical services to incarcerated individuals. But, they did not receive notice of the July 26, 2018 Order before it issued. Nor has Plaintiff shown that they received notice of his pending request for injunctive relief. Therefore, the medical providers cannot be enjoined at this time. Nonetheless, Defendants themselves must adhere to the Order, as “prisoners are entitled to reasonable medical care, and . . . officers having custody of a prisoner have a duty to procure such care.” Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (citing Blanks v. Cunningham, 409 F.2d 220 (4th Cir. 1969); Edwards v. Duncan, 355 F.2d 993 (4th Cir. 1966)); see also Harrison v. Oakley, No. RDB-07-2468, 2008 WL 7836410, at *7 (D. Md. June 25, 2008) (“State facilities are required to provide prisoners with reasonable medical care . . . .”).

         Violation of July 26, 2018 Order

         Defendants vehemently deny that they are in violation of the July 26, 2018 Order requiring them to notify the Court and to provide Plaintiff with the opportunity to respond before discontinuing Plaintiff's receipt of Lyrica. It is true that they informed the Court on October 19, 2018 that Plaintiff's Lyrica prescription would not be renewed, one day before the date of which Plaintiff claimed that he stopped receiving Lyrica. But that was not sufficient time for Plaintiff to respond; the discontinuation went into effect and Plaintiff's later complaints have not been sufficient for Defendants (through the medical providers) to renew the Lyrica prescription. Certainly, in the months that have passed, Defendants have prescribed other medications and begun other treatment. Yet, none of those efforts negate the fact that Defendants violated the July 26, 2018 Order by discontinuing Lyrica without affording Plaintiff any meaningful opportunity to respond.

         Injunctive ...

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