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Zeller v. Wexford Health Sources, Inc.

United States District Court, D. Maryland

August 12, 2019

DAVID COURTNEY ZELLER, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., Defendant.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         BACKGROUND

         On May 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 dead-murdered." Id.

         On May 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.

         DISCUSSION

         I. Motion for Appointment of Counsel

         On 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.

         Zeller 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.

         At this 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 prejudice.

         II. Motion to Dismiss or, in the Alternative, Motion for Summary Judgment

         In the 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.

         A. Legal Standards

         Wexford 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 ...


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