United States District Court, D. Maryland
Timothy J. Sullivan United States Magistrate Judge.
before the Court is Defendant Correct Rx Pharmacy Services,
Inc.'s (“Correct Rx”) Motion for Summary
Judgment (“Motion”) (ECF No. 61). Plaintiff Anthony
Fogle (“Mr. Fogle”) did not file a response to
the Motion and the time for doing so has
passed. See Loc. R. 105.2. I find that a
hearing is unnecessary. See Loc. R. 105.6. For the
reasons set forth below, the Motion will be granted.
Fogle filed his Complaint under the Civil Rights Act, 42
U.S.C. § 1983, on June 22, 2017. (ECF No. 1.) In the
Complaint, Mr. Fogle alleges that Correct Rx violated the
Eighth Amendment to the United States Constitution by failing
to fill his prescription for Nasacort, a medicated nasal
spray, resulting in migraine headaches over a period of
approximately 50 days. (Id. at 3.) The Court
appointed pro bono counsel to represent Mr. Fogle on
September 4, 2018 (ECF No. 28) and entered a scheduling order
(ECF No. 33) on September 25, 2018 to allow for the parties
to conduct discovery. Correct Rx filed its Motion on July 2,
times relevant to the Complaint, Mr. Fogle was an inmate
serving a sentence at the Roxbury Correctional Institution
(“RCI”) in Hagerstown, Maryland. (ECF No. 1.) RCI
is operated by the Maryland Department of Public Safety and
Correctional Services (“DPSCS”). Correct Rx
“is a private corporation licensed as an institutional
pharmacy and distributor by the Maryland Board of
Pharmacy.” (ECF No. 61-2 ¶ 6.) Under its
agreement with DPSCS, Correct Rx is “contracted to fill
medication requests for RCI, ” but it is not a medical
provider. (Id. ¶¶ 7-8.) Instead, Correct
Rx processes medication requests submitted by medical
providers at RCI. (Id. ¶ 9.) When medical
providers at RCI determine that a medication is appropriate,
they submit a medication request to Correct Rx.
(Id.) When Correct Rx receives a valid medication
request, it processes the request for shipment to the
appropriate correctional facility. (Id. ¶ 11.)
Medications are shipped to the medical provider at the
correctional facility so that they may “distributed to
the inmate as deemed appropriate by the medical
provider.” (Id. ¶ 12.)
Fogle was prescribed Nasacort OTC (“Nasacort”) at
According to Correct Rx's prescription fill record report
for Mr. Fogle, Correct Rx received a Nasacort order for Mr.
Fogle on September 4, 2015. (Id. ¶ 13.) Correct
Rx filled the Nasacort order and shipped it to RCI on the
same day. (Id.) On October 2, 2015, Correct Rx
received an expired refill request for Nasacort.
(Id.) Because the order was expired, Correct Rx did
not fill the order, but instead reported to RCI that the
request was not filled because the request was expired.
(Id.) On November 10, November 24, and December 8,
2015, Correct Rx received valid orders for Nasacort for Mr.
Fogle, which it filled and shipped to RCI on the same day
that each order was received. (Id.) There is no
dispute that Correct Rx filled every valid prescription order
that it received for Mr. Fogle from the medical providers at
RCI during the relevant time. (See Id. ¶¶
15-16.) Other than having filled prescriptions for Mr. Fogle,
Correct Rx was not involved with Mr. Fogle's medical care
and had no knowledge of the course of his medical treatment.
(Id. ¶¶ 16-17.)
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The burden is on the moving party to
demonstrate the absence of any genuine dispute of material
fact. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970). If sufficient evidence exists for a reasonable
jury to render a verdict in favor of the party opposing the
motion, then a genuine dispute of material fact is presented
and summary judgment should be denied. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However,
the “mere existence of a scintilla of evidence in
support of the [opposing party's] position” is
insufficient to defeat a motion for summary judgment.
Id. at 252.
facts themselves, and the inferences to be drawn from the
underlying facts, must be viewed in the light most favorable
to the opposing party. Scott v. Harris, 550 U.S.
372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230
(4th Cir. 2008). A party may not rest upon the mere
allegations or denials of its pleading but instead must, by
affidavit or other evidentiary showing, set out specific
facts showing a genuine dispute for trial. Fed.R.Civ.P.
56(c)(1). Supporting and opposing affidavits are to be made
on personal knowledge, contain such facts as would be
admissible in evidence, and show affirmatively the competence
of the affiant to testify to the matters stated in the
affidavit. Fed.R.Civ.P. 56(c)(4).
Correct Rx's Motion is unopposed, the Court must still
thoroughly review the Motion to determine if Correct Rx is
entitled to judgment as a matter of law. Robinson v. Wix
Filtration Corp., 599 F.3d 403, 409 n.8 (4th Cir. 2010)
(“[I]n considering a motion for summary judgment, the
district court ‘must review the motion, even
if unopposed, and determine from what it has before it
whether the moving party is entitled to summary judgment as a
matter of law.'”) (quoting Custer v. Pan Am.
Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993))
(emphasis in original).
the Eighth Amendment, prisoners have the right to receive
adequate medical care while incarcerated.” DePaola
v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018). A prison
official's “deliberate indifference” to an
inmate's serious medical needs is a constitutional
violation under the Eighth Amendment. Id. To prevail
on a claim for deliberate indifference to serious medical
needs under 42 U.S.C. § 1983, “a prisoner must
show that he had a serious medical need, and that officials
knowingly disregarded that need and the substantial risk it
posed.” Id. A “serious medical
need” is “a condition diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a
doctor's attention.” Id. (internal
quotation marks omitted). A prison official “acts with
deliberate indifference if he had actual knowledge of the
prisoner's serious medical needs and the related risks,
but nevertheless disregarded them.” Id.
Deliberate indifference is an “exacting
standard.” Hendrick v. Wexford Health Sources,
Inc., 141 F.Supp.3d 393, 402 (D. Md. 2015). It requires
more than a showing of “mere negligence or even civil
recklessness, and as a consequence, many acts or omissions
that would constitute medical malpractice will not rise to
the level of deliberate indifference.” Id.
(quoting Jackson v. Lightsey, 775 F.3d 170, 178 (4th
Cir. 2014)). “To constitute deliberate indifference to
a serious medical need, the defendant's actions
‘must be so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to
fundamental fairness.'” Id. (quoting
Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990)
(recognized in Sharpe v. S. Carolina Dep't of
Corr., No. 14-7582, 2015 WL 1500680, at *1 (4th Cir.
Apr. 3, 2015) as overruled on other grounds by Farmer v.
Brennan, 511 U.S. 825, 834 (1994))).
1983 allows individuals to sue in federal court any person
who violates their federally protected rights while acting
under the color of law. Id. at 400. Private
companies that employ individuals acting under color of state
law who allegedly commit unlawful acts “are liable
under § 1983 only when an official policy or custom of
the [company] causes the alleged deprivation of federal
rights.” Id. at 401 (internal citations,