Wallace v. Corizon Medical Services et al
Filing
46
MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 12/18/13. (c/m 12/19/13)(amf, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
THOMAS WALLACE, # 268813
Plaintiff,
v.
CORIZON MEDICAL SERVICES
DEREJE TESFAYE
CHRISTY SOMNER
SHARON L. BAUCOM
GREG FLURY
CARLA BROWN
Defendants.
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CIVIL ACTION NO. RDB-12-3717
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MEMORANDUM OPINION
Pending is self-represented Thomas Wallace’s (“Wallace”) Complaint filed pursuant to
42 U.S.C. § 1983 (ECF No. 1). Defendants, Corizon Medical Services (“Corizon”), Medical
Director Dereje Tesfaye, Christy Somner, Director of Clinical Services Sharon L. Baucom, and
Greg Flury,1 by their counsel, have filed Motions to Dismiss or, in the Alternative, Motions for
Summary Judgment with affidavits and verified exhibits. ECF Nos. 31, 33. Wallace has filed
Opposition responses. (ECF Nos. 41, 42, & 45). Oral hearing is not needed to resolve the issues.
See Local Rule 106.5 (D. Md. 2011). For the reasons that follow, the claim against Defendant
Brown IS DISMISSED and the remaining Defendants’ Motions for Summary Judgment ARE
GRANTED. Judgment will be entered in their favor.
BACKGROUND
In his Complaint, Wallace, an inmate at the North Branch Correctional Institution
(“NBCI”) in Cumberland, Maryland, claimed that in August of 2011, his medical diet was
“suspended.” Rather than afford him a substitute food regimen, however, he asserted that
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Defendant Carla Brown, an unidentified member of the prison medical department, was
not served. It is apparent that Wallace’s claim against her is unavailing for the reasons discussed herein.
The claim against Brown will simply be dismissed.
medical personnel told him to “stay away from the foods I’m allergic to, placing the burden on
me to provide my own calorie needs even though this is the institutions job.” (ECF No. 1 at p.
4). Wallace further complained that the Division of Correction has a duty to provide adequate
meals and calories and to ensure that an inmate’s medical diet needs are met. He accused
Defendants of negligence and deliberate indifference and he seeks compensatory and punitive
damages and the restoration of his medical diet.
I. Plaintiff’s Allegations
This Court reviews the facts and all reasonable inferences in the light most favorable to
the nonmoving party. See Scott v. Harris, 550 U.S. 372, 378 (2007); Erickson v. Pardus, 551
U.S. 89, 94 (2007). That review liberally construes Plaintiff’s pleadings in light of the fact that
he is self-represented. See Gordon v. Leek, 574 F.2d 1147, 1151 (4th Cir. 1978).
Medical Diet
Wallace alleges that his diet was “suspended” and despite his grievances he was not
provided the diet but was, in effect, told to self-control his food intake to avoid any foods to
which he had an allergic reaction.
Director of Clinical Services Defendant Sharon Baucom responds that she does not
prescribe medical diets to the inmate population, nor does she have supervisory authority over
private medical contractors. (ECF No. 31, Ex. 2). Baucom affirms that in August of 2011 she
did write a memorandum to Defendants Tesfaye and Somner to indefinitely hold the
implementation of the section of the Diet Manual addressing food allergy challenge testing
because it was outdated. She further advised that the allergy kit test had not been cleared or
approved by the Food and Drug Administration (“FDA”) and should not be used for diagnosis
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without confirmation by other medically established means. (ECF No. 31, Ex. 2). Baucom
maintains that inmates claiming to have allergies to “tomatoes, beef, celery, fish, etc.,” without a
description of a life-threatening event or symptoms, should be instructed to simply avoid those
foods. Further, Baucom asserts that receipt of requests for diets that fall outside of the eggs,
peanut allergy, and articulate corn peas, vegetables, beef, all pork products, etc. should be
facsimiled to the regional medical director with a copy to Corizon’s statewide medical director
for disposition, education and counseling. She denies that she has advanced the policy of putting
the burden on the inmate to self-monitor and validate food allergy and therapeutic diets as
Wallace alleges. (Id.).
Administrative Remedy Procedure
It is clear from the record that Wallace is no stranger to the Administrative Remedy
Procedure (“ARP”) grievance process. He filed a total of 17 ARPs between March 20, 2009, and
March 1, 2013. (ECF No. 31, Ex. 3). The record shows that Wallace filed ARP-NBCI-3285-11
regarding the suspension of his medical diet. After investigation, corrections officials dismissed
the grievance as without merit. (Id., Ex. 3). An appeal was filed to the Inmate Grievance Office
(“IGO”) and was administratively closed, when Wallace failed to respond to an IGO request to
provide additional documentation (Id., Ex. 4).
No appeal was filed to the Circuit Court for
Allegany County.
Medical Defendants (Corizon, Tesfaye, Flury and Somner) argue that they cannot be
found liable under a respondeat superior theory under § 1983. (ECF No. 33). They further argue
that Wallace’s needs were addressed and rely on his medical record to support their position.
They maintain that Wallace had blood testing performed on August 5, 2011, which indicated a
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potential allergic reaction to peanuts and soybeans. (ECF No. 33, Ex. 1 at pgs. 7-8 & 11). The
test was, however, performed using a kit not approved by the FDA and was not to be used for
diagnosis without confirmation by other medically established means. (ECF No. 33, Ex. 1 at
pgs. 7-8, 11, 14 & 16).
Physician’s Assistant (“PA”) Greg Flury reviewed the results and noted a reaction to
peanuts and soybeans. In response to these test results, on August 17, 2011, Flury modified
Wallace’s diet plan to exclude peanuts and soybeans for one year. (Id., Ex. 1 at pgs. 12-13 &
18).
On August 31, 2013, the Baucom memorandum was sent to Corizon’s medical
administrators advising them that the aforementioned food allergy testing performed by
BioReference Laboratories had not been approved by the FDA and recommending that when
there is no description of a life-threatening event or symptom(s), the inmate should be advised to
simply avoid the noted food. (Id., Ex. 2).
Medical Defendants further assert that Wallace addressed his food allergy on October 26,
2011, when he asked to be re-tested for his food allergy because the previous test was not FDA
approved. He was seen by medical staff three days later and advised a nurse that soy causes him
to have frequent bowel movements. Per the Baucom memorandum, he was informed as to what
foods were soy-free, and was encouraged to avoid soy-containing foods. (Id., Ex. 1 at pgs. 5759).
In an earlier sick-call request, filed on October 24, 2011, Wallace complained that since
being taken off the “no soy” diet, he had suffered from an itchy throat, severe diarrhea, and
stomach pains. (Id., Ex. 1 at p. 62.) On November 14, 2011, Wallace was seen by PA Flury,
who educated Wallace as to the current prison policy pertaining to soy-free diets when non-life
threatening allergy is suspected. (Id., Ex. 1 at p. 65).
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On January 1, 2012, Wallace filed a sick-call slip stating that he was suffering from rapid
weight loss. (ECF No. 33, Ex. 1 at p. 90). He was seen by a prison nurse on January 3, 2012,
and discussed his food allergy to soy and peanuts and the fact that he could not supplement his
diet with food from the commissary because he was housed on segregation. Wallace was
evaluated and found to have lost a total of 5 pounds between July of 2011, and January 4, 2012.
One week later, however, it was found that his weight (174 pounds) had been consistent over the
preceding two-year period and he had gained weight since his January 4, 2012 examination. (Id.,
Ex. 1 at pgs. 92 & 98).
STANDARD OF REVIEW
I.
Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes dismissal of a complaint
if it fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is “to
test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of
a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483
(4th Cir.2006). (internal quotation marks and alterations omitted) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). When ruling on such a motion, the court must
“accept the well-pled allegations of the complaint as true,” and “construe the facts and
reasonable inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v.
United States, 120 F.3d 472, 474 (4th Cir. 1997). This Court, however, “need not accept the legal
conclusions drawn from the facts, and [the Court] need not accept as true unwarranted
inferences,
unreasonable
conclusions
or
arguments.”
5
Nemet
Chevrolet,
Ltd.
v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (internal quotation marks and
citation omitted).
The Supreme Court's opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that complaints in civil actions be alleged
with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d 435, 439
(4th Cir. 2012) (citation omitted). The Supreme Court's decision in Twombly articulated “[t]wo
working principles” that courts must employ when ruling on Rule 12(b)(6) motions to dismiss.
Iqbal, 556 U.S. at 678. First, while a court must accept as true all the factual allegations
contained in the complaint, legal conclusions drawn from those facts are not afforded such
deference. Id. (stating that “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice” to plead a claim). Second, a complaint must be
dismissed if it does not allege a “plausible” claim for relief. Id. at 678–79 (“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.”).
2.
Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted
“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) (emphasis added). Whether a fact is
material depends upon the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–
48 (1986). Accordingly, “the mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment.” Id. “A party
opposing a properly supported motion for summary judgment ‘may not rest upon the mere
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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, 522 (4th Cir.2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must
view the evidence in the light most favorable to the nonmovant and draw all justifiable
inferences in his favor. Scott 550 U.S. at 378 (citation omitted); see also Greater Baltimore Ctr.
for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 721 F.3d 264, 283 (4th
Cir. 2013) (citation omitted). At the same time, the court must not yield its obligation “to prevent
factually unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526
(citation and internal quotation marks omitted).
A federal court must liberally construe pleadings filed by pro se litigants to allow them to
fully develop potentially meritorious cases. See Erickson 551 U.S. at 94; Cruz v. Beto, 405 U.S.
319 (1972). The requirement of liberal construction does not mean the Court can ignore a clear
failure in the pleadings to allege facts which set forth a claim. See Weller v. Department of Social
Services, 901 F.2d 387, 391 (4th Cir. 1990). The Court cannot assume the existence of a genuine
issue of material fact where none exists. Fed. R. Civ. P. 56(c).
ANALYSIS
The Complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of
substantive rights,’ but provides ‘a method for vindicating federal rights elsewhere conferred.’”
Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3
(1979)). A suit under § 1983 allows “a party who has been deprived of a federal right under the
color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526
U.S. 687, 707 (1999). To state a claim under § 1983, a plaintiff must allege that: (1) a right
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secured by the Constitution or laws of the United States was violated, and (2) that the alleged
violation was committed by a person acting under the color of state law. See West v. Atkins, 487
U.S. 42, 48 (1988).
Defendants assert that Wallace’s claim filed against them is dismissible under Rule
12(b)(6) on grounds of respondeat superior and non-exhaustion and under Rule 56 for the failure
to demonstrate a violation of the Eighth Amendment and on the ground of qualified immunity.
I.
Respondeat Superior
Wallace’s claim with regard to Defendant Baucom is based on her supervisory position
as Director of Clinical Services for the Maryland Department of Public Safety & Correctional
Services, as she does not appear to have been personally involved in the matters at issue. It is
well established that the doctrine of respondeat superior does not apply in § 1983 claims. See
Monell v. New York City Department of Social Services, 436 U.S. 658, 694 (1978); Love–Lane v.
Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no respondeat superior liability under § 1983).
Liability of supervisory officials “is not based on ordinary principles of respondeat superior, but
rather is premised on ‘a recognition that supervisory indifference or tacit 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 42 U.S.C. §
1983 must be supported with evidence: 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
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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). The Complaint fails to forth such allegations, and there is no evidence to
suggest Baucom had actual or constructive knowledge of the matter at issue here.
Further, to the extent the Complaint names Corizon in the alleged denial of medical care
solely upon vicarious liability, the law in this circuit is clear: principles of municipal liability
under § 1983 apply equally to a private corporation. Therefore, a private corporation is not
liable under § 1983 for actions allegedly committed by its employees when such liability is
predicated solely upon a theory of respondeat superior. See Austin v. Paramount Parks, Inc.,
195 F.3d 715, 727-28 (4th Cir. 1999); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.
1982). A § 1983 claim may not be framed against Corizon.
II. Failure to Exhaust
Defendant Baucom argues that Wallace’s claim is barred due to his failure to exhaust
administrative remedies. Title 42 U.S.C. § 1997e(a) provides that A[n]o action shall be brought
with respect to prison conditions under § 1983 of this title, or any other Federal law by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as
are available are exhausted.@ The phrase Aprison conditions@ encompasses Aall inmate suits about
prison life, whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong.@ Porter v. Nussle, 534 U.S. 516, 532 (2002). Proper
exhaustion of administrative remedies demands compliance with an agency=s deadlines and other
critical procedural rules because Ano adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.@ Woodford v. Ngo, 548 U.S.
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81, 90-91 (2006). Administrative exhaustion under § 1997e(a) is not a jurisdictional requirement
and does not impose a heightened pleading requirement on the prisoner. Rather, the failure to
exhaust administrative remedies is an affirmative defense to be pleaded and proven by
defendant(s). See Jones v. Bock, 549 U.S. 199, 215-216 (2007); Anderson v. XYZ Correctional
Health Services, Inc., 407 F.2d 674, 682 (4th Cir. 2005).
Wallace’s claim against Baucom falls under the exhaustion prerequisites of § 1997e(a),2
and must be dismissed unless he can show that he has satisfied the administrative exhaustion
requirement or that Baucom has forfeited her right to raise non-exhaustion as a defense. See
Chase v. Peay, 286 F.Supp.2d 523, 528 (D. Md. 2003). In Maryland, filing a request for
administrative remedy with the Warden of the prison in which one is incarcerated is the first of
three steps in the Administrative Remedy Procedure (“ARP”) process provided by the Division
of Correction. If this request is denied, the prisoner has thirty calendar days to file an appeal
with the Commissioner of Correction. If an appeal is denied, the prisoner has thirty days in
which to file an appeal to the Executive Director of the Inmate Grievance Office. See Md. Code
Ann. Corr. Serv. §§ 10–206, 10–210; Md. Regs. Code Title 12 § 07.01.03.
2
In Adamson v. Correctional Medical Services, Inc., 359 Md. 238 (Md. 2000) the Court
of Appeals of Maryland examined the legislative history of the Maryland Administrative Remedy
Procedure (“ARP”) grievance process and observed that it permitted a prisoner to submit a complaint for
grievances against officials or employees of the Maryland DOC and Patuxent Institution through to the
IGO. The state appellate court further noted that the IGO declines to hear prisoner grievances against
private health care contractors. Adamson, 359 Md. 266-271. The Court of Appeals concluded that the
Maryland prisoner administrative remedy process does not encompass complaints against private medical
providers under contract with the state. This Court has adopted the Adamson analysis and found that
administrative exhaustion may not be raised as an affirmative defense by private healthcare providers at
DPSCS facilities. See Shipe v. Mumby and Simmons, 2012 WL 5417332 (D. Md.); Chisum v. Maryland,
2010 WL 481350 (D. Md.) Calhoun v. Horning, et al., 2009 WL 2913418 (D. Md. 2009). Therefore, in
this case, the exhaustion defense may only be raised by Defendant Baucom.
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Wallace’s failure to exhaust administrative remedies is undisputed.
The record shows
that he had access to the ARP grievance process, but did not fully grieve claims regarding his
medical diet. This failure also provides a basis for his claim against Baucom to be dismissed.
III. Medical Care
The Eighth Amendment prohibits Aunnecessary and wanton infliction of pain@ by virtue
of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173
(1976). AScrutiny under the Eighth Amendment is not limited to those punishments authorized
by statute and imposed by a criminal judgment.@ De=Lonta v. Angelone, 330 F. 3d 630, 633 (4th
Cir. 2003) citing Wilson v. Seiter, 501 U.S.294, 297 (1991).
In order to state an Eighth
Amendment 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 an inmate’s serious
medical needs. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Iko v. Shreve, 535 F.3d
225, 241 (4th Cir. 2008). Deliberate indifference to a serious medical need requires proof that,
objectively, the prisoner plaintiff was suffering from a serious medical need and that,
subjectively, the prison staff was aware of the need for medical attention but failed to either
provide it or ensure the needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837
(1994).
As noted above, objectively, the medical condition at issue must be serious.3 See Hudson
v. McMillian, 503 U.S. 1, 9 (1992) (there is no expectation that prisoners will be provided with
3
A “serious medical need” is “one that has been 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.” Iko, 535 F.3d at 241, citing to Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir.
1999).
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unqualified access to health care). Proof of an objectively serious medical condition, however,
does not end the inquiry.
The subjective component requires Asubjective recklessness@ in the face of the serious
medical condition.
Farmer, 511 U.S. at 839-40.
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. See Brown v. Harris, 240 F. 3d 383, 390 (4th
Cir. 2001); 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).
Inmates do not have a constitutional right to the treatment of their choice, Dean v.
Coughlin, 804 F.2d 207, 215 (2d Cir. 1986), and disagreements between medical staff and an
inmate over the necessity for or extent of medical treatment do not rise to a constitutional injury.
See Estelle, 429 U.S. at 105-06; Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985); see also
Fleming v. LeFevere, 423 F.Supp.2d 1064, 1070-71 (C.D. Cal. 2006).
The exhibits show that Wallace has a history of hypertension and Hepatitis C. ECF No.
33, Ex. 2. In August of 2011, lab results revealed that he tested hypersensitive to peanuts and
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soybeans. (Id.). Because the test taken had not been approved by the FDA, however, medical
staff followed the recommendations of Sharon Baucom. As Wallace had not experienced lifethreatening symptoms, he was advised to refrain from eating foods with peanut and soybean
content. He has not shown an objective injury from the policy. No Eighth Amendment violation
has been demonstrated.4
CONCLUSION
Even when the evidence is viewed in the light most favorable to him and all justifiable
inferences are drawn in his favor, Wallace’s claims are factually unsupported and no genuine
issue of material fact is presented. Accordingly, Defendants’ Motions for Summary Judgment
will be GRANTED. Judgment will be entered in favor of Defendants Baucom, Corizon Medical
Services, Flury, Somner, and Tesfaye. The claim against Defendant Brown is dismissed.
Date: December 18, 2013.
________________/s/______________
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE
4
As no constitutional violation has been demonstrated, the Court need not address the
State Defendant’s qualified immunity argument.
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