United States District Court, D. Maryland
THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE
David Courtney Zeller, an inmate at the Western Correctional
Institution ("WO") in Hagerstown, Maryland, has
filed a civil action against Wexford Health Sources, Inc.
("Wexford"), presenting complaints about his dental
care. He has also filed a Motion for Appointment of Counsel.
Wexford has filed a Motion to Dismiss or in the Alternative,
Motion for Summary Judgment in response to the Complaint as
initially filed. The Motion is fully briefed. In addition,
Zeller has filed multiple documents that appear to seek to
supplement or amend the Complaint. Upon consideration of the
submitted materials, the Court finds that no hearing is
necessary to resolve the pending Motions. See D. Md.
Local R. 105.6. For the reasons set forth below, the Motion
Appointment of Counsel will be DENIED, and the Motion for
Summary Judgment will be GRANTED. The Court will construe the
first two supplemental filings as an Amended Complaint and
will accept it as the operative Complaint.
18, 2017, Zeller, who at the time was incarcerated at Jessup
Correctional Institution ("JO") in Jessup,
Maryland, initiated this matter by filing a Complaint against
Wexford, asserting that he received improper dental care
beginning in 2011. Specifically, he asserts that he had
problems with his dentures in that he disliked the denture
cleaner and adhesive provided to him in prison. He seeks
injunctive and declaratory relief consisting of a soft diet
and for the Court to determine what is "fair."
Compl. at 6-7, ECF No. 1. At the end of the Complaint, Zeller
wrote that he was "frightened by all this & what
these can are [sic] capable of." Id. at 7.
Zeller added "I may very well end up
30, 2017, after considering Zeller's Complaint and
attachments and other cases Zeller had recently filed which
suggested that Zeller could be experiencing mental health
concerns potentially affecting his safety and well-being, the
Court ordered the Maryland Department of Public Safety and
Correctional Services ("DPSCS") to provide a report
addressing Zeller's mental and physical health. On June
9, 2017, counsel for the Office of the Attorney General of
Maryland submitted the required report with a declaration and
360 pages of Zeller's medical and mental health records.
This information provided that Zeller has met with medical
providers on 82 occasions, was receiving medical and mental
health treatment, and had met with mental health providers 26
times since January 2017. Zeller has received treatment by a
psychiatrist and has had weekly visits with a nurse. Further,
medical providers could refer Zeller for additional services
from the Psychology Department as needed. Based on this
information, the Court was satisfied that emergency
injunctive relief was not necessary.
Motion for Appointment of Counsel
February 19, 2019, Zeller filed a Motion for Appointment of
Counsel, without specifying in which of his pending cases he
intended to file the Motion. In light of Zeller's
self-represented status and the reasons he provides for his
request for counsel, the Motion was docketed in this matter
and his other pending cases: Zeller v. Jordan,
TDC-17-1629, Zeller v. Choi, TDC-17-2030, Zeller
v. Zhou, PWG-2650, and Zeller v. Wexford,
PWG-17-3136. Zeller's Motions will be separately
considered in each of his cases.
requests appointment of counsel in this case because he has
filed many cases in this Court and suffers from mental
illness, making it difficult for him to effectively manage
his litigation. He provides no specific reason why he is
unable to litigate the instant case on his own. "The
court may request an attorney to represent any person"
proceeding in forma pauperis who is "unable to
afford counsel." 28 U.S.C. § 1915(e)(1) (2012). In
civil actions, the Court appoints counsel only in exceptional
circumstances. Cook v. Bounds, 518 F.2d 779, 780
(4th Cir. 1975). In doing so, the Court considers "the
type and complexity of the case," whether the plaintiff
has a colorable claim, and the plaintiffs ability to
prosecute the claim. See Whisenant v. Yuam, 739 F.2d
160, 163 (4th Cir. 1984) (citations omitted), abrogated
on other grounds by Mallard v. U.S. Dist. Court for the S.
Dist. of Iowa, 490 U.S. 296 (1989). Exceptional
circumstances include a litigant who "is barely able to
read or write," id. at 162, or clearly
"has a colorable claim but lacks the capacity to present
it," Berry v. Gutierrez, 587 F.Supp.2d 717, 723
(E.D. Va. 2008); see also Altevogt v. Kirwan, No.
WDQ-11-1061, 2012 WL 135283, at *2 (D. Md. Jan. 13, 2012).
Inherent in this analysis is that one's indigence is
insufficient to establish exceptional circumstances.
point, Zeller has adequately conveyed that he is alleging
claims of inadequate dental treatment and inadequate medical
care as described in later claims such that counsel is not
necessary to allow for a fair assessment whether Zeller has
viable claims. Should the case proceed to discovery or
beyond, the Court may consider whether Zeller's mental
state would necessitate appointment of counsel. The Motion
for Appointment of Counsel will therefore be denied without
Motion to Dismiss or, in the Alternative, Motion for Summary
original Complaint, Zeller asserts claims of inadequate
dental care, which the Court construes as a claim under 42
U.S.C. § 1983 for deliberate indifference to inmate
health, in violation of the Eighth Amendment to the United
States Constitution. Wexford seeks dismissal or summary
judgment on the grounds that (1) Wexford cannot be held
vicariously liable under section 1983; and (2) Wexford does
not provide dental care to inmates at WCI. For the reasons
set forth below, the Motion will be granted.
seeks dismissal under Federal Rule of Civil Procedure
12(b)(6) or summary judgment under 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.
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