United States District Court, D. Maryland
JAMES E. HOUCK Plaintiff
STEPHEN SCHELINASE, M.D. VINCENT SIRACUSANO, M.D. Defendants
J. HAZEL, UNITED STATES DISTRICT JUDGE
E. Houck is incarcerated at Western Correctional
Institution in Cumberland, Maryland. On September 14, 2018, he
filed this Complaint and a Motion for Leave to Proceed in
Forma Pauperis. ECF Nos. 1, 2.
filed this Complaint under 28 U.S.C. §1915, which
permits an indigent litigant to commence an action in federal
court without prepaying the filing fee. To protect against
possible abuses of this privilege, the statute requires a
court to dismiss any claim that fails to state a claim on
which relief may be granted." 28 U.S.C.
§1915(e)(2)(B)(ii)). The Court also is mindful of its
obligation to liberally construe the pleadings of pro se
litigants such as Houck. See Erickson v. Pardus, 551
U.S. 89, 94 (2007). In evaluating a pro se
complaint, a plaintiffs allegations are assumed to be true.
Id. at 93 (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007)). Nonetheless,
liberal construction does not mean that a court can ignore a
clear failure in the pleading to allege facts which set forth
a claim cognizable in a federal district court. See
Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th
Cir. 1990); see also Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985) (stating a district court
may not "conjure up questions never squarely
presented"). Even under this less stringent standard,
this Complaint is subject to summary dismissal for failure to
state a claim on which relief may be granted.
alleges that Defendants committed medical malpractice and
negligence by prescribing Risperdal which caused
gynecomastia, enlargement of male breasts. Complaint, ECF No.
1. Houck claims that he never signed "paperwork" or
was informed by Defendants about gynecomastia as a possible
side effect. On October 4, and October 22, 2018, Houck filed
supplements to the Complaint which essentially repeat these
allegations. ECF Nos. 3, 4. 5. In one supplement, he also
claims that "all inmates should be informed of all side
effect [sic] under the Eighth Amendment." ECF No. 5 at
3. As relief, he seeks "$50 million or $10
million," and indicates that he will settle the case for
"$895, 000 or $395, 000" with "treatment"
of unspecified nature. Complaint, ECF No. 1 at 3.
Houck's fourth Complaint alleging the Risperdal
prescribed for him caused gynecomastia. Houck v. Wexford
Health Sources, Inc., Civil Action No. 15-3639 (D. Md.
2016) (claim dismissed after Houck failed to comply with
Court direction to name the individuals who prescribed the
medication); Houck v. Siracusano, Civil Action No.
GJH-16-1323 (D. Md. 2018) (Defendant's Motion for Summary
Judgment granted and judgment entered in favor of
Siracusano); Houck v. Janssen Pharmaceuticals, Inc.,
Civil Action No. GJH-17-1136 (dismissed with prejudice,
assigning a first strike under 28 U.S.C. §1915(g)).
added background, the Court takes notice of facts summarized
in its Memorandum Opinion issued on August 15, 2017, in
Houck v. Siracusano, Civil Action No. GJH-16-1323,
Memorandum Opinion, ECF No. 79. In that case, the Court
examined whether Houck's Eighth Amendment rights were
abridged by Siracusano. There, as here, Houck alleged that
Siracusano had prescribed Risperdal, causing him to develop
gynecomastia. Siracusano, a psychiatrist, had prescribed
Risperdal for Houck to treat his schizoaffective disorder.
Siracusano stated in his declaration that Houck had never
complained to him of enlarged breasts, and had Houck
complained, he would have referred Houck to WCI medical
providers for evaluation and considered switching him to
another medication. Siracusano declared that in his role as a
psychiatrist at WCI, he is not supposed to perform a physical
examination on Houck or any other patient. Rather, he would
rely on the WCI medical team to perform a physical
examination regarding a complaint of enlarged breasts had he
received such a complaint. Id. at 4-5, Siracusano
Deck ECF No. 57-3. Siracusano stated that Houck was never
forcibly administered Risperdal and could stop taking it at
any time. Siracusano posited that Houck's obesity
provided plausible explanation for the purported breast
enlargement. Id Further, Houck made no mention of his
concerns about Risperdal when he met with Siracusano several
times between December 8, 2015 and December 10, 2016, when
they met for medication reviews. GJH-16-1323, ECF No. 79 at
6. On January 16, 2017, Houck asked to be taken off Risperdal
because it was causing gynecomastia. Two days later, Houck
stopped receiving Rispersal. Id.
Court also noted on March 4, 2015, Stephen Schellhase, M.D.,
prescribed Risperdal, to treat Houck for schizoaffective
disorder after Houck informed him that he did hot like
Haldol, another anti-psychotic medication, but had done well
on Risperdal. Schellhase prescribed two mg. of Risperdal
twice a day. ECF No. 79 at 5, Medical Records, ECF No. 57-2
at 23. On May 20, 2015, after Houck reported good results
with Risperdal and his other medications, Schellhase renewed
the medications. Id. There is no record that
Schellhase treated Houck after this date or that Houck
complained to him about gynecomastia.
Eighth Amendment prohibits "unnecessary and wanton
infliction of pain" by virtue of its guarantee against
cruel and unusual punishment. Gregg v. Georgia, 428
U.S. 153, 173 (1976); see also Estelle v. Gamble,
429 U.S. 97, 102 (1976). To establish an Eighth Amendment
claim a plaintiff must prove: "(1) that the deprivation
of a basic human need was objectively sufficiently serious;
and (2) that subjectively the officials acted with a
sufficiently culpable state of mind." De'lonta
v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (emphasis
in original). The objective element is satisfied by a
prisoner's serious medical condition, and the subjective
element is satisfied by showing deliberate indifference.
Id. Not every allegation of inadequate medical
treatment states a claim under the Eighth Amendment.
Estelle v. Gamble, 429 U.S. 97, 105 (1976). Neither
an "inadvertent failure to provide adequate medical
care" nor "negligen[ce] in diagnosing or treating a
medical condition" amounts to deliberate indifference.
Id. at 105-06. To be liable under this standard, the
prison official "must both be aware of facts from which
the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the
inference," Farmer v. Brennan, 511 U.S. 823,
837 (1994). For not "every claim by a prisoner
[alleging] that he has not received adequate medical
treatment states a violation of the Eighth Amendment."
Estelle, 429 U.S. at 105. To establish deliberate
indifference, the treatment "must be so grossly
incompetent, inadequate or excessive as to shock the
conscience or to be intolerable to fundamental
fairness." Miltier v. Beorn, 896 F.2d 848, 851
(4th Cir. 1990). "Deliberate indifference is a very high
standard-a showing of mere negligence will not meet it
..." Grayson v. Peed, 195 F.3d 692, 695-96 (4th
Cir. 1999). Mere negligence, malpractice, or incorrect
diagnosis is not actionable under 42 U.S.C. § 1983.
See Estelle, 429 U.S. at 106.
alleges that he never signed "paperwork" informing
him of the side effects of Risperdal, and claims that
"all inmates should be informed of all side effect [sic]
under the Eighth Amendment. ECF No. 1, 5 at 3. Because the
Eighth Amendment protects inmates from deliberate
indifference to substantial risks of serious damage to their
health, to state an Eighth Amendment claim, Houck must allege
facts that Defendants actually knew about a substantial risk
of serious harm to his health or safety and nonetheless
purposely disregarded the risk. See Farmer, 511 U.S.
at 837. Here, Houck does not allege or suggest facts to show
that Defendants perceived a substantial risk that he would
experience these side effects. Indeed, court records show
that he informed Dr. Schelinase on March 4, 2015 that he did
not like Haldol, another anti-psychotic medication but had
done well on Risperdal. Houck made no mention of his concerns
about Risperdal when he met with Siracusano several times
between December 8, 2015 and December 10, 2016, when they met
for medication reviews. GJH-16-1323, ECF No. 79 at 6. On
January 18, 2017, two days after Houck asked to be taken off
Risperdal because it was causing gynecomastia, the medication
was stopped. Id.
assuming that it was Defendants' responsibility to
provide Houck with this "paperwork," the failure to
do so does not necessarily rise to a violation of
constitutional proportion. See Burgess v. Mar, 395
Fed.Appx. 368 (9th Cir. 2010) ("failure to warn
[plaintiff] of the potential side effects of pain medication
constitute[s] negligence at most, and not deliberate
indifference"); see also Jetter v. Beard, 130
Fed. Appx, 523, 526 (3d Cir. 2005) (physician's alleged
failure to inform inmate of the side effects of Prednisone
amounts to nothing more than negligence); Williams v.
Kelly, No. 15 C 8135, 2018 WL 1911820 (N.D. Ill) (April
23, 2018) (granting summary judgment on Eighth Amendment
claim in favor of physician who was alleged to have failed to
explain gynecomastia as a possible side effect of Risperdal).
"Inadvertent failures to impart medical information
cannot form the basis of a constitutional violation."
See Pabon v. Wright, 459 F.3d 241, 250 (2d Cir.
2006).Under these facts, the Complaint is
deficient. Houck does not allege Defendants knew of a
substantial risk to him and purposefully disregarded that
risk. Without such allegation, Houck has failed to state an
Eighth Amendment claim.
to the extent Houck raises claims of negligence and
malpractice under state law, the Court declines to exercise
supplemental jurisdiction, and they will be dismissed without
prejudice. See Carnegie Mellon Univ. v. Cohill, 484
U.S. 343, 350 (1988). Any such claim must be pursued in state
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