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Lewis v. Bishop

United States District Court, D. Maryland

August 26, 2019

TREMAYNE LEWIS SR., #442-207, Plaintiff
v.
WARDEN FRANK BISHOP, ASST. WARDEN J. NINES, MEDICAL RN HOLLY L. PIERCE, Defendants

          MEMORANDUM OPINION

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE.

         On 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.[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.”[2] Compl. 3.

         The 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.[3]Lewis was twice advised that he was entitled to file an opposition response and supporting materials, [4] 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.

         BACKGROUND

         The 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 tomatoes.” Id.

         Pierce's Assertions

         Pierce, 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 her[5]and was not referred to her for a clinical evaluation regarding his allergy. Id. ¶ 5.

         Pierce 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.

         Correctional Defendants' Assertions

         Correctional 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.

         Correctional 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.

         In 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.

         STANDARD OF REVIEW

         Under 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, ...


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