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Fogle v. Correct RX Pharmacy Services Inc.

United States District Court, D. Maryland

September 4, 2019

ANTHONY FOGLE Plaintiff,
v.
CORRECT RX PHARMACY SERVICES, INC., Defendant.

          MEMORANDUM OPINION

          Timothy J. Sullivan United States Magistrate Judge.

         Pending before the Court is Defendant Correct Rx Pharmacy Services, Inc.'s (“Correct Rx”) Motion for Summary Judgment (“Motion”) (ECF No. 61).[1] Plaintiff Anthony Fogle (“Mr. Fogle”) did not file a response to the Motion and the time for doing so has passed.[2] 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.

         I. PROCEDURAL HISTORY

         Mr. 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.[3] Correct Rx filed its Motion on July 2, 2019.

         II. UNDISPUTED FACTS

         At all 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.”[4] (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.)

         Mr. Fogle was prescribed Nasacort OTC (“Nasacort”) at RCI.[5] 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.)

         III. LEGAL STANDARD

         “The 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.

         The 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).

         Although 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).

         IV. DISCUSSION

         “Under 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))).

         Section 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, ...


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