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Gilbert v. Wexford Health Care

United States District Court, D. Maryland

May 15, 2019

STEVEN GILBERT, Plaintiff,
v.
WEXFORD HEALTH CARE, AVA JOUBERT-CURTIS, APRIL WARNICK, BURNICE L. SWAN, MARIA LEWIS, DENNIS MARTIN, Defendants.

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE

         Steven Gilbert, the self-represented plaintiff, is an inmate currently incarcerated at the Western Correctional Institution (“WCI”). On January 24, 2018, Gilbert filed a § 1983 Complaint against Ava Joubert-Curtis, M.D.; April Warnick; Burnice Swan; Maria Lewis; Dennis Martin; and Wexford Health Care[1] (collectively, the “Medical Defendants”), alleging deliberate indifference to his medical needs. ECF 1. He then filed what was docketed as an Amended Complaint on February 23, 2018 (ECF 5), and what was docketed as a Second Amended Complaint on March 29, 2018. ECF 6.[2]

         In this court's prior Memorandum Opinion (ECF 9) and Order (ECF 10) of August 28, 2018, I denied defendants' dispositive motion, without prejudice, as to Gilbert's claim that he was deprived of adequate medical treatment for an H. pylori infection, in violation of his Eighth Amendment rights. Id.; see also ECF 12; ECF 14 in Case ELH-17-3357. The Court considered materials submitted by the Medical Defendants in their response to the Court's earlier order to show cause why injunctive relief should not be granted. ECF 3 in Case ELH-17-3357. But, I concluded that the materials were not sufficient to demonstrate that Gilbert was tested for the infection, nor did the materials reveal the results of the test. See ECF 12; ECF 12-1, 12-2, 12-3 in ELH-17-3357; ECF 9 at 22 in ELH-18-230.

         Following Gilbert's filing in ELH-18-230 of another amended complaint (ECF 11), [3] the Medical Defendants filed a motion to dismiss or for summary judgment. ECF 14; see also ECF 10 (order directing service); ECF 13 (notice of counsel's appearance). The motion is supported by a memorandum (ECF 14-1) (collectively, the “Motion”) and exhibits. Gilbert opposes the motion (ECF 16), with exhibits, and the Medical Defendants replied. ECF 17.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2018). For the reasons set forth below, the Medical Defendants' Motion, construed as one for summary judgment, shall be granted.

         I. Background

         In this court's prior Memorandum Opinion (ECF 9), I summarized background information concerning Gilbert's claims, as follows, ECF 9 at 3-4:[4]

Gilbert claims that he told three nurses, April Warnick, Maria Lewis, and Dennis Martin, that he had been throwing up blood beginning October 22, 2017, without receiving medical treatment. ECF 1 at 1. He alleges that he was told his condition would be reported to a physician, but he did not receive treatment, despite that assurance. Id.
According to Gilbert, he informed Correctional Officers Frenzel, Romey, Layton, and Davis, as well as Sgt. Drew, that he was vomiting blood for a period of days and had not been seen by a medical provider, despite submitting sick call slips requesting attention. ECF 1 at 2. He also claims that he filed a complaint through the prison grievance procedure, known as an ARP, stating that he has cancer, with lumps and pain in his upper chest area. Id. According to Gilbert, Nurse Maria Lewis told him she would try to get him seen by a provider, but he was never seen for the complaints of chest pain. Id. Gilbert did not explain why he believes he has cancer.
Gilbert seeks 800 million dollars in damages from Wexford “for medical neglect.” ECF 1 at 3. Because of the apparent seriousness of the nature of his claimed ailment, this court directed an immediate response from DPSCS prior to service of the complaint. See ECF 3.
Counsel filed a response (ECF 12), together with medical records and a Declaration under oath from Burnice Swan, the Assistant Director of Nursing at WCI, where Gilbert is incarcerated. She disputes Gilbert's allegations that he has not received medical attention for his complaints. ECF 12-1 (medical records); ECF 12-2 (Declaration of Swan).
The medical records reflect that Gilbert was seen by medical staff in response to his claims that he was vomiting daily for over a month and, despite the fact that he exhibited no signs or symptoms of being dehydrated or otherwise in distress, tests were ordered, which came back normal. ECF 12-1 at 59, 58; ECF 12-2 at 2. On December 27, 2017, Dr. Joubert-Curtis reported that Gilbert complained that he had been “vomiting everything he eats or drinks for 67 days, ” but his demeanor when presenting to the dispensary was “smiling and laughing.” ECF 12-1 at 72. In addition, Gilbert had gained weight over the previous four months. Moreover, “Labs and [abdominal] x-rays are normal.” Id. And, a “fecal occult blood test” was also “negative.” Id.

         Dr. Joubert-Curtis observed that Gilbert has a psychiatric history, with a diagnosis of “multiple personality disorder, antisocial personality and dissociative personality disorder, ” for which he was under the care of psychiatric staff. ECF 9 at 4. Dr. Joubert-Curtis also noted that she was “ordering labs for h.pylori, and inflammatory markers.” Id. But, there was no further indication regarding the results of those tests, whether other treatment was ordered as a result, or whether further treatment was required. Id.

         Thus, at the time counsel filed the response to show cause, the results of tests ordered by Dr. Joubert-Curtis were not before this court. Id. As noted, in the absence of that information, this court could not discern “whether other treatment was ordered” in light of the test results, or “whether or not further treatment is required.” Id.

         In an amended complaint following this court's Memorandum Opinion and Order (ECF 11), Gilbert alleged that he had been “sick for 122 days [with] H. pylori” and that he had been “vomiting blood, foods, liquids, and even my medications.” Id. at 1. He stated that he had “asked to have a scope to look at [his] stomach on 2-19-18 & earlier this month, ” but he had not received that treatment. Id. Gilbert insists that “there is something seriously wrong” with his stomach that is “getting worse each day, ” with “sharp pains on the left side, ” and he worries that he may never be able to eat properly again. Id.

         II. Standard of Review

         Defendants' motion is styled as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. A motion styled in this manner implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F.Supp.2d 431, 436-37 (D. Md. 2011).

         Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for summary judgment under Rule 56, ” but “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d); see Adams Housing, LLC v. The City of Salisbury, Maryland, 672 Fed.Appx. 220, 222 (4th Cir. 2016) (per curiam). However, when the movant expressly captions its motion “in the alternative” as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court “does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).[5]

         A district judge has “complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.” 5 C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004, 2011 Supp.). This discretion “should be exercised with great caution and attention to the parties' procedural rights.” Id. at 149. In general, courts are guided by whether consideration of extraneous material “is likely to facilitate the disposition of the action, ” and “whether discovery prior to the utilization of the summary judgment procedure” is necessary. Id. at 165, 167.

         Summary judgment is generally inappropriate “where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., 637 F.3d 435, 448-49 (4th Cir. 2012); see Putney v. Likin, 656 Fed.Appx. 632, 638-39 (4th Cir. 2016) (per curiam); McCray v. Maryland Dep't of Transportation, 741 F.3d 480, 483 (4th Cir. 2015). However, “the party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed for discovery.'” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)); see also Dave & Buster's Inc. v. White Flint Mall, LLLP, 616 Fed.Appx. 552, 561 (4th Cir. 2015).

         To raise adequately the issue that discovery is needed, the nonmovant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for specified reasons, it cannot present facts essential to justify its opposition, ” without needed discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit requirement of former Rule 56(f)). “[T]o justify a denial of summary judgment on the grounds that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be ‘essential to [the] opposition.'” Scott v. Nuvell Fin. Servs., LLC, 789 F.Supp.2d 637, 641 (D. Md. 2011) (alteration in original) (citation omitted). A nonmoving party's Rule 56(d) request for additional discovery is properly denied “where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, ...


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