Hoffman v. Maryland Department of Public Safety and Correctional Services et al

Filing 26

MEMORANDUM. Signed by Judge George Levi Russell, III on 5/1/13. (c/m af 5/2/13)(amf, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHAEL HOFFMAN, #303-582

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Plaintiff

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v.

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MARYLAND DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONAL
SERVICES, et al.
Defendants

Civil Action No. GLR-12-2178

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MEMORANDUM
Plaintiff Michael Hoffman (“Hoffman”) filed the above-captioned Complaint pursuant to
42 U.S.C. § 1983. Defendants Ava Joubert and Colin Ottey (“Medical Defendants”) by their
attorneys filed a Motion to Dismiss, or in the Alternative for Summary Judgment. ECF No. 13.
Defendants Maryland Department of Public Safety and Correctional Services (“DPSCS”) and
Maryland Division of Correction (“State Defendants”) by their attorneys have also filed a
Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. ECF No. 20. Plaintiff
has responded.1 ECF Nos. 17, 23 & 25. Medical Defendants have replied. ECF No. 19. After

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Plaintiff, some four months after filing the Complaint and 44 days after the filing of the first dispositive
motion, has filed a Motion to Amend Complaint. ECF No. 22. The Motion is opposed. ECF No. 24. Plaintiff
seeks to amend the Complaint to add Corizon Health Inc. as a named Defendant. The Motion shall be denied. The
amendment would be futile as Plaintiff has failed to allege any action on the part of Corizon. See e.g. Vinnedge v.
Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (dismissing cause of action against official where Plaintiff failed to allege
any personal connection between the official and the denial of Plaintiff’s constitutional rights.).
To the extent Plaintiff alleges that Corizon, and the State Defendants were responsible for overseeing
medical staff, such a claim is based solely upon the doctrine of respondeat superior, which does not apply in § 1983
claims. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no respondeat superior liability under § 1983);
see also Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (no respondeat superior liability in a Bivens suit).
Liability of supervisory officials must be “premised on ‘a recognition that supervisory indifference or tacit

review of the papers and applicable law, the Court determines that a hearing is unwarranted. See
Local Rule 105.6 (D. Md. 2011). For the reasons that follow, the dispositive motions will be
GRANTED.
Background
Hoffman, an inmate currently confined at North Branch Correctional Institution
(“NBCI”), filed the instant Complaint alleging that he has been denied adequate medical care for
a back injury. ECF No. 1. Plaintiff claims that for over ten years he has suffered from lower
back pain. He states that on January 15, 2012, he was advised by Rhonda Skidmoore, former
Nursing Director at NBCI, that x-rays showed “bone spurs” between four of Plaintiff’s vertebrae
which were the cause of his pain. Plaintiff states nothing has been done, despite his repeated
requests, to treat the bone spurs.
Plaintiff’s uncontroverted medical records show that on January 12, 2012, Dr. Ottey
prescribed Tylenol 500 mg x 30, effective January 20, 2012 to January 31, 2012. Baclofen was
also ordered as needed from January 4, 2012 to May 4, 2012. ECF No. 13, Ex. A, Ex. B pp. 235,
237, 241. Plaintiff was also seen for complaints of back pain on February 25, 2012. ECF No.
20, Ex. 1, pp. 2-7.
On March 16, 2012, Dr. Joubert discontinued Baclofen after Plaintiff reported that it was
ineffective in treating his back pain. Tramadol was prescribed to treat Plaintiff’s back pain. ECF
authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries they inflict on
those committed to their care.’” Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001), citing Slakan v. Porter, 737
F.2d 368, 372 (4th Cir. 1984). Supervisory liability under § 1983 must be supported with evidence that (1) the
supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive
and unreasonable risk of constitutional injury to citizens like the plaintiff, (2) the supervisor’s response to the
knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive
practices, and (3) there was an affirmative causal link between the supervisor’s inaction and the particular
constitutional injury suffered by the plaintiff. See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Plaintiff has
pointed to no action or inaction on the part of Corizon or State Defendants that resulted in a constitutional injury.

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No. 13, Ex. A, Ex. B, pp. 288-91. Plaintiff was again evaluated on March 21, 2012. Notes
indicate that Plaintiff was to receive Baclofen and Indomethacin for pain. ECF No. 20, Ex. 1, p.
8. He was seen again on April 4, 2012, and it was noted that the pharmacy was to be consulted
regarding Plaintiff’s complaints of back pain. Id., p. 10.
On April 10, 2012, Plaintiff was seen by a Physician’s Assistant. Plaintiff requested his
prescription for Tramadol be increased. He indicated the medication was working but he wanted
it doubled. He was in no apparent distress. The Physician’s Assistant reviewed Plaintiff’s
medication, ordered they be continued, and also requested a pharmacological consultation
regarding Plaintiff’s medication. ECF No. 13, Ex. A, Ex. B, p. 241. The pharmacological
consultation determined Plaintiff was receiving the maximum dose of Tramadol. Id. The
following day Dr. Ottey renewed and continued Plaintiff’s medication. Id., pp. 345-350, 353.
Plaintiff was again examined by Dr. Ottey on April 12, 2012. As a result of the examination
Ottey increased Plaintiff’s dosage of Elavil and the dosage of Meloxicam could be increased in
two weeks if the increased Elavil dosage did not help. Id., & ECF No. 20, Ex. 1, p. 13. He also
ordered Plaintiff not to lift weighty or heavy objects and directed he follow up in one month. Id.,
ECF No. 13, Ex. A, Ex. B, pp. 268-70.
Plaintiff was again seen by Dr. Ottey on May 13, 2012. He appeared in no apparent
distress. Dr. Ottey ordered Plaintiff’s medication continued. He also ordered Plaintiff retuned to
a regular diet, as tolerated, after noting that Plaintiff has suffered from bouts of diarrhea and
vomiting. Id., pp. 400-401.

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On May 25, 2012, Plaintiff reported to Dr. Ottey, that he was “okay right now. I only
have my normal pain in the groin and across my back. It’s a 6/10 and is quite tolerable for me.”
Id., p. 451.
Plaintiff was evaluated by Dr. Joubert on May 28, 2012, regarding his complaint of low
back pain. She ordered he continue Meloxicam and Baclofen. Id., pp. 467-8.
On June 8, 2012, Plaintiff again complained of low back pain. Dr. Ottey continued his
medications, including Baclofen and Meloxicam. Id., pp. 479-480. Plaintiff was seen by Dr.
Joubert on June 12, 2012. Id., p. 481. It was noted that Plaintiff’s previous x-rays revealed
“mild degenerative changes with osteophytes at nearly all levels.” Id. At that time Plaintiff was
provided a back brace, back pain sheet and exercise program, and it was noted that Plaintiff
agreed with continuing to receive Meloxicam. Id.
On July 7 and 15, 2012, Plaintiff was evaluated by Dr. Ottey. Medications, including
Baclofen and Meloxicam were continued. Plaintiff was directed not to lift heavy weights.
Plaintiff indicated his current back pain was from jumping from a hospital bed. Id., pp. 488-491,
498.
Plaintiff states that he did not receive Meloxicam, a non-formulary narcotic, from July
2012 through October 2012. He states that while his physicians prescribed the medication, they
failed to follow the proper procedures to insure the medication was ordered and distributed to
him. ECF No. 17. Plaintiff further indicates that his prescription for Tramadol was discontinued
from March 28, 2012 to May 24, 2012, due to Dr. Joubert’s unfounded belief that he was
hoarding medication. Id.

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Plaintiff was again evaluated on October 13, 2012. It was noted that Meloxicam would
be ordered after Plaintiff advised the provider that had not received Meloxicam that was
previously ordered. Plaintiff’s Baclofen prescription was also renewed. ECF No. 20, Ex. 1, p.
22.
Standard of Review
A.

Motion to Dismiss
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6) is to test the

sufficiency of the plaintiff’s complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243
(4th Cir. 1999). The dismissal for failure to state a claim upon which relief may be granted does
not require defendant to establish Abeyond doubt@ that plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. See Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 561-62 (2007). Once a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the complaint. Id. at 562. The court
need not, however, accept unsupported legal allegations, see Revene v. Charles County
Comm'rs., 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations,
see Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any
reference to actual events, see United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.
1979).
In reviewing a complaint in light of a Motion to Dismiss pursuant to Fed. R. Civ. Proc.
12(b)(6) the court accepts all well-pleaded allegations of the complaint as true and construes the
facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.
Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005); Ibarra v. United States, 120
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F.3d 472, 473 (4th Cir. 1997); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a Ashort and plain statement of
the claim showing that the pleader is entitled to relief.@ Migdal v. Rowe Price-Fleming Int=l Inc.,
248 F.3d 321, 325-26 (4th Cir. 2001); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513
(2002) (stating that a complaint need only satisfy the Asimplified pleading standard@ of Rule
8(a)).
The Supreme Court of the United States explained a Aplaintiff=s obligation to provide the
>grounds= of his >entitlement to relief= requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.@ Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citations omitted). Nonetheless, the complaint does not need Adetailed
factual allegations@ to survive a motion to dismiss. Id. Instead, Aonce a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint.@ Id. at 563. Thus, a complaint need only state Aenough facts to state a claim to relief
that is plausible on its face.@ Id. 570.
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, at
678. “But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is
entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
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B.

Summary Judgment
Summary Judgment is governed by Fed. R. Civ. P. 56(a) which provides that:
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.
The Supreme Court has clarified that this does not mean that any factual dispute will
defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247-48 (1986) (emphasis in original).
AThe party opposing a properly supported motion for summary judgment >may not rest
upon the mere allegations or denials of [his] pleadings,= but rather must >set forth specific facts
showing that there is a genuine issue for trial.=@ Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)).
The court should Aview the evidence in the light most favorable to . . . the nonmovant, and draw
all inferences in her favor without weighing the evidence or assessing the witness= credibility.@
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court
must, however, also abide by the Aaffirmative obligation of the trial judge to prevent factually
unsupported claims and defenses from proceeding to trial.@ Bouchat, 346 F.3d at 526 (internal
quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and
citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) the Supreme Court
explained that in considering a motion for summary judgment, the Ajudge=s function is not
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himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.@ A dispute about a material fact is genuine Aif the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.@ Id. at 248. Thus,
Athe judge must ask himself not whether he thinks the evidence unmistakably favors one side or
the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the
evidence presented.@ Id. at 252.
The moving party bears the burden of showing that there is no genuine issue as to any
material fact. No genuine issue of material fact exists if the nonmoving party fails to make a
sufficient showing on an essential element of his or her case as to which he or she would have
the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, on
those issues on which the nonmoving party has the burden of proof, it is his or her responsibility
to confront the summary judgment motion with an affidavit or other similar evidence showing
that there is a genuine issue for trial.
Analysis
A.

Sovereign Immunity
Under the Eleventh Amendment to the United States Constitution, a state, its agencies

and departments are immune from suits in federal court brought by its citizens or the citizens of
another state, unless it consents. See Penhurst State School and Hospital v. Halderman, 465 U.
S. 89, 100 (1984). While the State of Maryland has waived its sovereign immunity for certain
types of cases brought in State courts, see Md. State Gov't Code Ann., ' 12-202(a), it has not
waived its immunity under the Eleventh Amendment to suit in federal court. Thus, Plaintiff=s
Complaint against the State Defendants, agencies within the State of Maryland, is barred by the
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Eleventh Amendment.

B.

Respondeat Superior
Even if Plaintiff had named individual correctional employees, his claim would

nonetheless fail.2 Section 1983 liability on the part of the supervisory correctional defendants
requires a showing that: A(1) the supervisory defendants failed promptly to provide an inmate
with needed medical care, (2) that the supervisory defendants deliberately interfered with the
prison doctors' performance, or (3) that the supervisory defendants tacitly authorized or were
indifferent to the prison physicians' constitutional violations.@ Miltier v. Beorn, 896 F.2d 848,
854 (4th Cir. 1990) (internal citations omitted); see also Slakan v. Porter, 737 F.2d 368, 372 (4th
Cir. 1984) (supervisory liability for an inmate's beating by prison guards). Plaintiff has failed to
satisfy such a claim. There is simply no evidence that any correctional employees failed to
provide needed medical care, interfered with the provision of same, or were tacitly indifferent to
a constitutional violation.
C.

Denial of Medical Care
In order to state a claim for denial of medical care, a plaintiff must demonstrate that the

actions of the defendants or their failure to act amounted to deliberate indifference to a serious
medical need. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference to a
serious medical need requires proof that, objectively, the prisoner plaintiff was suffering from a

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Thus, the Court need not address State Defendants’ contention that Plaintiff failed to exhaust
administrative remedies.

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serious medical need and that, subjectively, the prison staff were aware of the need for medical
attention but failed to either provide it or ensure the needed care was available. Farmer v.
Brennan, 511 U.S. 825, 837 (1994).

The subjective component requires Asubjective

recklessness@ in the face of the serious medical condition. Farmer, 511 U.S. at 839B 40. ATrue
subjective recklessness requires knowledge both of the general risk, and also that the conduct is
inappropriate in light of that risk.@ Rich v. Bruce, 129 F.3d 336, 340 n. 2 (4th Cir. 1997).
AActual knowledge or awareness on the part of the alleged inflicter . . . becomes essential to
proof of deliberate indifference >because prison officials who lacked knowledge of a risk cannot
be said to have inflicted punishment.=@ Brice v. Virginia Beach Correctional Center, 58 F.3d
101, 105 (4th Cir. 1995), quoting Farmer, 511 U.S. at 844. If the requisite subjective knowledge
is established, an official may avoid liability Aif [he] responded reasonably to the risk, even if the
harm was not ultimately averted.@ Farmer, 511 U.S. at 844. Reasonableness of the actions taken
must be judged in light of the risk the defendant actually knew at the time. Brown, 240 F.3d at
390; citing Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998) (focus must be on precautions
actually taken in light of suicide risk, not those that could have been taken). Further,
A[d]isagreements between an inmate and a physician over the inmate's proper care do not state a
' 1983 claim unless exceptional circumstances are alleged.@ Wright v. Collins, 766 F.2d 841,
849 (4th Cir. 1985).
Plaintiff’s allegation that he was not provided necessary medical treatment for his back
pain is belied by the record. The evidence before the Court demonstrates that Plaintiff has
received constitutionally adequate medical care. Plaintiff has been evaluated regularly regarding
his pain.

X-rays taken to identify the source of Plaintiff’s back pain, revealed moderate
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degenerative disk disease with osteophytes, i.e. bone spurs. He has regularly been provided pain
medication, anti-inflammatories, and muscle relaxers.3 He has also been provided a back brace,
educational materials, and an exercise program to treat his back pain. ECF No. 13, Ex. A.
Plaintiff’s disagreement with a course of treatment does not provide the framework for a federal
civil rights complaint. See Russell v. Sheffer, 528 F.2d 318 (4th Cir. 1975). In granting
summary judgment to the Medical Defendants, the Court does not imply that Plaintiff is not
entitled to medical treatment for his serious condition. The right to treatment, however, is
“limited to that which may be provided upon a reasonable cost and time basis and the essential
test is one of medical necessity and not simply that which may be considered merely desirable.”
Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir.1977) (emphasis added). “Disagreements
between an inmate and a physician over the inmate's proper medical care do not state a § 1983
claim unless exceptional circumstances are alleged.” Wright v. Collins, 766 F.2d 841, 849(4th
Cir. 1985), citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3rd Cir. 1970). There are no exceptional
circumstances in this case. Plaintiff has been evaluated repeatedly and provided appropriate
tests, therapies, and analgesic medication. Even if true -- which it is not -- the allegation that the
Medical Defendants provided inappropriate treatment states nothing more than a claim of

3

Even if Plaintiff’s claim that at times he has not received all of the medication prescribed is true, he has
failed to demonstrate that the named medical defendants were responsible for that failure and thus deliberately
indifferent to his serious medical need.

Moreover, Plaintiff’s claim is contradicted by the medical records which indicate that during the time at issue he
received Baclofen (a muscle relaxer), Indomethacin (an anti-inflammatory and pain reliever), Ultram/Tramadol (a
narcotic pain reliever), and Acetaminophen, (an anti-inflammatory and pain reliever) regularly. ECF No. 13, Ex. B,
pp. 152, 176, 177, 179, 181, 191, 193, 195, 199, 203, 205-209, 211, 215, 219, 221, 224-225, 229, 233, 235, 237,
241. Further, the records reflect that on March 31, 2012 and April 24, 2012 he was dispensed 30 tablets of
Meloxicam and that while it was a non-formulary medicine it had been approved and he had been provided same.
Id., pp. 177, 211.

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medical malpractice and negligence.4 “[A]n inadvertent failure to provide adequate medical care

does not amount to deliberate indifference.” Estelle v. Gamble, 429 U.S. 97, 105 (1976). Mere
negligence or malpractice does not rise to a constitutional level. See Russell v. Sheffer, 528 F.2d
318, 319 (4th Cir. 1975); Donlan v. Smith, 662 F.Supp. 352, 361 (D. Md. 1986). Accordingly,
the Medical Defendants are entitled to summary judgment as to Plaintiff’s Eighth Amendment
claim.
For the reasons stated, summary judgment is granted in favor of Defendants. A separate
Order shall be entered in accordance with this Memorandum.
May 1, 2013

/s/
_______________________
George L. Russell, III
United States District Judge

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Under Maryland law, a claim of medical malpractice could proceed only after complete review before the
Maryland Health Claims Arbitration Board. See Md. Code Ann., Cts. & Jud. Proc., ' 3-2A-01 et seq.; see also
Davison v. Sinai Hospital of Balt. Inc., 462 F.Supp. 778, 779-81 (D. Md. 1978); Group Health Ass’n, Inc. v.
Blumenthal, 295 Md. 104, 114 (1983). There is no demonstration that Plaintiff has sought or completed such
review. This Court declines jurisdiction over these state court claims, and dismisses them without prejudice. See 28
U.S.C. ' 1367(c)(3); United Mine Workers v. Gibbs, 383 U. S. 715, 726 (1966).

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