United States District Court, D. Maryland
W. Grimm, United States District Judge.
Jaquone Lakeem Collins, representing himself in this suit, is
an inmate at North Branch Correctional Institution
("NBCI"). He has filed a Complaint seeking money
damages and asserting civil rights violations
under 42 U.S.C. § 1983 by prison health care provider
Wexford Health Sources, Inc. ("Wexford") and
Wexford employees Mahboob Ashraf, M.D.; Robustiano Barrera,
M.D.; nurse practitioner Peggy Mahler; and registered nurses
Stacie Mast and Jennifer D. VanPelt (the "Medical
Defendants"). Essentially, he claims the Medical
Defendants violated the Eighth Amendment by disregarding his
complaints of a painful inguinal hernia for two years
before he was provided corrective surgery. The Complaint also
names various state employees: Dr. Sharon L. Baucom, chief
medical director for the Department of Public Safety and
Correctional Services ("DPSCS"); Richard J. Graham,
Jr., warden of Western Correctional Institution
("WCI"); former DPSCS Commissioner Dayena M.
Corcoran; and Dr. Adaora Odunza, DPSCS's director of
nursing (collectively, the "State Defendants").
Collins asserts that Baucom failed to implement training
concerning treatment of hernias; that Graham failed to
personally address Collins's grievances concerning the
problem and instead delegated investigation of the matter to
an assistant warden who denied the administrative remedy
procedure ("ARP") grievance; that Corcoran
dismissed Collins's appeal of the ARP; and that Odunza
did not implement new "ghost policies" concerning
the timely treatment of hernias. See Compl. 5-6.
Collins states his complaints of pain received little or no
response, specifically noting that during his July 1, 2017
visit with a registered nurse he was told to submit another
sick call slip to address his hernia pain with another
provider. See Id. at 3. Collins also claims that he
was seen by Defendant Barrera on July 10, 2017, and that
Barrera ignored his complaint of pain, stating "he had
somewhere to be." Id.
response to the Complaint, both the Medical Defendants and
the State Defendants have filed motions to dismiss or,
alternatively, for summary judgment, ECF Nos. 22, 29,
accompanied by affidavits and exhibits. Collins was advised
of his right to respond and oppose the dispositive motions
(ECF Nos. 23, 30) and has done so, ECF Nos. 27, 35, prompting
a reply filed by the Medical Defendants (ECF no.
motions may be decided without a hearing. See Local
Rule 105.6 (D. Md. 2018). For the reasons stated below, the
Medical Defendants' motion, construed as a motion to
dismiss, is granted in part and denied in part. The State
Defendants' motion, likewise construed as a motion to
dismiss, is granted. As for Collins, his motion to compel
discovery (ECF No. 39) is denied as moot, while his motion to
appoint counsel (ECF No. 36) will be granted.
February 6, 2016, Collins placed a sick call request after
noticing a bulge below his waist line near the pubic area.
Compl. 2. The bulge was eventually diagnosed as a hernia.
See Id. Collins underwent surgery for the condition
on March 8, 2018. See Id. at 4. The dispute in this
case centers on Collins's dissatisfaction with pain
relief provided after his hernia diagnosis and the length of
time between the date of diagnosis and surgical intervention,
which Collins contends violated Wexford's clinical
guidelines and other treatment protocols. Collins also
alleges that Defendant Ashraf misdiagnosed his condition as
an abdominal hernia during a January 31, 2017 visit, as
evidenced by the record notation and the ordering of an
abdominal binder (waist band). See Compl. 3. In his
opposition response, Collins contends that the conservative
treatment rendered in accord with Wexford's "watch
and wait" policy places prisoners at risk of "grave
injury or death" and subjects them to
"significant" pain while awaiting the outcome.
PL's Nov. 2018 Opp'n 2, ECF No. 27-1; see Wexford
Outpatient Clinical Guidelines, ECF 1-19 ("The Repair of
Abdominal Wall/Inguinal Hernias"). Collins contends that
he should have received surgery immediately after he first
complained of pain on September 30, 2016, and further states
that when surgery was recommended on October 3, 2017, he
exercised his "right for a second opinion" when
declining to have the surgery performed at Bon Secours
Hospital. PL's Nov. 2018 Opp'n 3-4.
their motions, Defendants seek dismissal pursuant to Federal
Rule of Civil Procedure 12(b)(6) or summary judgment pursuant
to Rule 56. To defeat a motion to dismiss under Rule
12(b)(6), the Complaint must allege enough facts to state a
plausible claim for relief. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A claim is plausible when the facts
pleaded allow "the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. Although courts should construe
pleadings of self-represented litigants liberally,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), legal
conclusions or conclusory statements do not suffice,
Iqbal, 556 U.S. at 678. The Court must examine the
complaint as a whole, consider the factual allegations in the
complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff. See Albright
v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd.
of Comm'rs of Davidson Cty., 407 F.3d 266, 268 (4th
Defendants have submitted numerous exhibits with their
motion, the Court may consider such evidence only if it
converts the motion to one seeking summary judgment.
Fed.R.Civ.P. 12(d). Before converting a motion to dismiss to
one for summary judgment, courts must give the nonmoving
party "a reasonable opportunity to present all the
material that is pertinent to the motion." Id.
Federal Rule of Civil Procedure 56, summary judgment is
granted if the moving party demonstrates that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In assessing the
motion, the district court must view the facts in the light
most favorable to the nonmoving party, "with all
justifiable inferences" drawn in its favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The
court may rely only on facts supported in the record, not
simply assertions in the pleadings. Bouchat v. Bait.
Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003). A fact is "material" if it "might
affect the outcome of the suit under the governing law,"
Anderson, Ml U.S. at 248, and a dispute of material
fact is "genuine" only if sufficient evidence
favoring the nonmoving party exists for the trier of fact to
return a verdict for that party, id.
The Medical Defendants
Medical Defendants move for dismissal pursuant to Rule
12(b)(6) for failure to state a claim upon which relief can
be granted. They move, in the alternative, for summary
judgment under Rule 56.
12(d) gives a district court discretion to treat a motion to
dismiss as a motion for summary judgment under certain
circumstances. See Fed.R.Civ.P. 12(d); Finley Lines Joint
Protective Bd. Unit 200 v. Norfolk S. Corp., 109 F.3d
993, 996 (4th Cir. 1997). If, as it happens, the court opts
to construe the motion as one for summary judgment, the rule
requires the court to give all parties "a reasonable
opportunity to present all the material that is pertinent to
the motion." Fed.R.Civ.P. 12(d); Starnes v.
Veeder-Root, No. 15-1002, 2017 WL 913633, at *2 (M.D.
N.C. Mar. 7, 2017).
the Medical Defendants' motion expressly sought summary
judgment in the alternative and was accompanied by a number
of exhibits. Collins, accordingly, was on notice that the
motion could be treated as a motion for summary judgment.
See Tsai v. Md. Aviation, 306 Fed.Appx. 1, 4 (4th
Cir. 2008). In my view, though, it remains questionable
whether he has had a "reasonable opportunity" to
present material in opposition to the motion.
term 'reasonable opportunity' requires that all
parties be given 'some indication by the court that it is
treating the 12(b)(6) motion as a motion for summary
judgment,' with the consequent right in the opposing
party to file counter affidavits or pursue reasonable
discovery." Gay v. Wall, 761 F.2d 175, 177 (4th
Cir. 1985) (quoting Johnson v. RAC Corp., 491 F.2d
510, 513 (4th Cir. 1974)). Collins is an inmate and is
unrepresented in this case. He has filed a motion for
discovery (ECF No. 39), to which he has attached a letter
that states, in a single sentence, "I do not know what
I'm doing." ECF No. 39-1. In his opposition to
Medical Defendants' motion, he implores the Court to
grant him "a fair opportunity" to take his case to
trial, noting that he "is a lay person of the law"
and is relying "solely on limited resources."
PL's Nov. 2018 Opp'n 4. The document is unaccompanied
by exhibits, save for a trio of documents he had previously
enclosed along with his Complaint. See ECF Nos. 27-2
to -4. While I will not go so far as to state that I could
not treat the Medical Defendants' motion as a motion for
summary judgment, I am inclined under the circumstances to
exercise my discretion to construe the motion solely as a
motion to dismiss. To the extent, then, that the motion seeks
summary judgment under Rule 56, the motion will be denied
without prejudice,  with the understanding that the Medical
Defendants may renew their motion following the conclusion of
next consider the Medical Defendants' arguments for
dismissing the Complaint under Rule 12(b). These are: (a) the
claims against Wexford fail because the doctrine of
respondeat superior does not apply to § 1983
claims, (b) the Medical Defendants are entitled to qualified
immunity as state actors, and (c) the Complaint ...