United States District Court, D. Maryland
W. GRIMM UNITED STATES DISTRICT JUDGE.
March 8, 2018, Plaintiff Tremayne Lewis, Sr. was transferred
to North Branch Correctional Institution
(“NBCI”), where he complained that he could not
eat food prepared with tomatoes. See Compl. 2, ECF
No. 1. On November 9, 2018, Lewis signed an
unverified Complaint, asserting that following his transfer,
more than 200 meals were served that he could not eat because
they contained tomatoes. See Id. Lewis claims his
weight has fluctuated and that Warden Bishop and Assistant
Warden Nines (collectively, the “Correctional
Defendants”) have dismissed his administrative remedies
procedure (“ARP”) grievances on the grounds that
he has gained (not lost) weight and that his tomato allergy
was self-reported and not medically verified. See
Id. He states that nurse practitioner Holly Pierce, also
a defendant in this case, will not send the dietary
department notification of his allergy. Lewis seeks $500, 000
in damages and transfer to a “[j]ail that will honor my
allergy to [t]omatoes.” Compl. 3.
Correctional Defendants and Pierce have filed motions to
dismiss or, in the alternative, for summary judgment (ECF
Nos. 9, 14), which I construe as motions for summary
judgment.Lewis was twice advised that he was
entitled to file an opposition response and supporting
materials,  and he has chosen not to respond. A
hearing is not needed to resolve this case. See Loc.
R. 105.6 (D. Md. 2018). For the following reasons,
Defendants' motions for summary judgment are granted.
factual allegations in Lewis's Complaint run no more than
a few sentences. In short, Lewis alleges that Pierce told him
she would not “honor” his tomato allergy because
of grievances he previously had filed against her. Compl. 2.
He says the dietary department told him that “as long
as Ms. Holly Pierce doesn't send medical paperwork saying
I don't get tomato trays I will not eat on those
days.” Id. He complains the warden and
assistant warden “dismissed my case saying I gained 5
pounds in 5 months and that I am self reporting my allergy to
a certified nurse practitioner, was employed through Wexford
Health Sources, Inc. to provide health services to NBCI
prisoners during the relevant period noted in the Complaint.
Pierce Aff. ¶ 1, ECF No. 9-4. Pierce states that Lewis
first reported a tomato allergy on October 25, 2008, and that
in April 2014 he reported to a mid-level medical provider
that if he ate tomatoes his throat and face became swollen.
Id. ¶ 3. The dietary department was informed of
Lewis's condition but did not place him on a tomato-free
diet. Id. When Lewis was transferred to NBCI in
March 2018, his tomato allergy continued to be noted in his
medical records. Id. ¶ 4. However, he did not
report any tomato allergy or other dietary complaints to
medical staff until August 2, 2018, when he asked via a
sick-call request to be given substitute foods in lieu of
tomatoes. Id. He was seen on August 7, 2018, and was
told not to eat tomatoes or tomato products. Id.
Pierce says Lewis never discussed his concerns about a tomato
allergy during his encounters with herand was not
referred to her for a clinical evaluation regarding his
allergy. Id. ¶ 5.
references the Department of Public Safety and Correctional
Services (“DPSCS”) Medical Dietary Manual, which
provides that in cases of severe allergic reactions to food,
a patient who has consulted a dietician and receives an
approval from the regional medical director may be entitled
to special therapeutic diets. See Id. ¶ 6. For
all other non-life-threatening food allergies or intolerances
self-reported by prisoners, including allergies to foods such
as tomatoes and onions, the manual recommends that the
medical record be documented and that the prisoner be advised
to avoid consuming the food; the manual does not mandate
special dietary orders to eliminate problematic foods from
the prisoners' meals. See id.; Dietary Manual
18, ECF No. 9-5. Pierce notes that Lewis has not lost weight
due to avoiding tomatoes. In fact, during the time in
question, his weight increased from 166.6 pounds in May 2018
to 172.6 pounds in August 2018 to 173.4 pounds in November
2018. Pierce Aff. ¶ 7.
Defendants argue they enjoy immunity from suit under the
Eleventh Amendment. See Correctional Defs.' Mem.
5-6, ECF No. 14-1. They also argue that they personally
played no role in investigating Lewis's complaints of a
tomato allergy and that the medical attention afforded Lewis
has been constitutionally sufficient under the Eighth
Amendment. Id. at 6-9. In addition, they raise an
affirmative defense of non-exhaustion of administrative
remedies and contend that dismissal is warranted because a
final decision on the appeal of Lewis's ARP grievance
(NBCI 1289-18) was not rendered until two months after Lewis
filed this lawsuit. See Id. at 9-11.
Defendants state that Lewis filed two grievances concerning
his allergy-related weight loss: ARP NBCI 1289-18, which was
filed on August 23, 2018, and APR NBCI 2094-18, which was
filed on December 21, 2018. Acting Warden Roderick
investigated and dismissed the first grievance because Lewis
had gained weight and because, under the Medical Dietary
Manual, a special dietary order is not needed when a prisoner
who self-reports an allergy can stay safe simply by avoiding
the food. Aug. 2018 Grievance R. 1-8, ECF No. 14-3. Roderick
dismissed the second grievance because Lewis's allergy
claim had been documented several times by medical personnel
who recommended that he simply avoid eating tomatoes. Dec.
2018 Grievance 2-20, ECF No. 14-4.
response to the first grievance (ARP NBCI 1289-18), ARP
investigator Parrish Kammauf consulted with Scott Steininger,
the correctional dietary regional manager for the western
region. See Aug. 2018 Grievance R. 2. Steininger
tallied the calorie count for current menu items over a
five-week cycle and deducted the calories for items
containing tomatoes. He found that the average daily caloric
total, excluding foods with tomatoes, was 2, 909 calories.
Id. Given Lewis's height of 74 inches, his
optimal weight range is 148 to 193 pounds. Lewis weighed
between 166.6 pounds and 173.4 pounds while at NBCI and thus
was within an appropriate weight range despite avoiding meals
containing tomatoes. See id.; Pierce Aff. ¶ 7.
Federal Rule of Civil Procedure 56, summary judgment is
appropriate 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.
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 assertions in
the pleadings. Bouchat v. Balt. 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, ...