Montgomery v. Bigham et al

Filing 48

MEMORANDUM. Signed by Judge Ellen L. Hollander on 2/12/14.(c/m af 2/14/14) (amf, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID MICHAEL MONTGOMERY,
#412797
Plaintiff,
v
JASON BIGHAM, et al.
Defendants

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Civil Action ELH-13-930
(Consol. Civil Action ELH-13-931)

MEMORANDUM
David Michael Montgomery, the self-represented plaintiff, is presently an inmate at the
Maryland Correctional Training Center in Hagerstown, Maryland.

He has filed suit, later

amended and then supplemented, against a host of defendants, pursuant to 42 U.S.C. § 1983,
arising from his arrest on January 5, 2013, and subsequent detention. See ECF 1, 7, 12. As
relief, he requests $1 million, ECF 7 at 13; a lesser sentence in a state criminal case,1 id.; and to
have “the officers fired.” ECF 12 at 13.
Motions to dismiss or, in the alternative, for summary judgment have been filed by
counsel on behalf of defendants Conmed, Inc. (“Conmed”) (ECF 21); Sergeant Michael
Galligan, Corporal Scott Pederson,2 Patrolman First Class K. J. Jenkins, Corporal Jamie Grover,
and the Anne Arundel County Police Department (the “AACPD Defendants”) (ECF 28); Warden

1

On December 30, 2013, in the Circuit Court for Carroll County, Criminal Case No. 06K-13-043713, Montgomery pleaded guilty to second-degree murder and armed
robbery/attempted armed robbery, pursuant to an agreed statement of facts. He was sentenced to
a total of thirty years of incarceration. http://casesearch.courts.state.md.us/inquiry/inquiryDetail.
jis?caseId=06K13043713&loc=61 &detailLoc=K.
2

Defendant’s last name is misspelled as “Paderson” in the complaint. ECF 1 and 12.
The docket will be corrected to reflect the proper spelling of defendant’s surname.

Hardinger (ECF 34);3 and the Maryland Department of State Police,4 Corporal Jason Bigham,
Trooper Christopher Bishop, Sergeant John Carhart, Senior Trooper Jeffrey B. Claycomb,
Sergeant Edward Eicher, Senior Trooper Frank Fornoff, Trooper Christopher Taylor, and Senior
Trooper Edward Winkler (the “MSP Defendants”) (ECF 36). Numerous exhibits have also been
submitted by the defendants in support of the motions. Montgomery has replied in opposition.
See ECF 26, 33 38 and 39.5 The matter has been briefed and no hearing is necessary to resolve
the motions. See Local Rule 105.6 (D. Md.).
STANDARD OF REVIEW
Defendants’ motions are captioned as motions to dismiss under Fed.R.Civ.P. 12(b)(6) or,
in the alternative, for summary judgment under Fed.R.Civ.P. 56. Conmed, AACPD, and MSP
also submitted affidavits and records to support their motions.
Motions styled as motions to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative,
for summary judgment implicate the court's discretion under Rule 12(d) of the Federal Rules of
Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F.Supp.2d
431, 436–37 (D. Md. 2011). Ordinarily, a court “is not to consider matters outside the pleadings
3

Counsel entered an appearance on behalf of Warden Hardinger and the Carroll County
Detention Center, but the motion addresses claims only as to Hardinger. Nevertheless, the
Carroll County Detention Center shall be dismissed from this case because it is not a “person”
subject to suit under 42 U.S.C. § 1983. See, e.g., Marsden v. Fed. Bureau of Prisons, 856 F.
Supp. 832, 836 (S. D.N.Y. 1994)(“jail is not an entity that is amenable to suit”); Powell v. Cook
County Jail, 814 F.Supp. 757 (N.D. Ill. 1993) (jail not subject to suit).
4

Insofar as Montgomery also names “State Police Westminster,” a division of the
Maryland State Police, it is not a “person” subject to suit under 42 U.S.C. § 1983. See, e.g., Will
v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989); Marsden v. Fed. Bureau of Prisons,
856 F. Supp. at 836; Powell, 814 F.Supp. at 757.
5

Notice of defendants' dispositive motions and the opportunity to file affidavits and
records in response were sent to Montgomery pursuant to the requirements of Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975). ECF 22, 30, 35 and 37. Montgomery filed no affidavits
or other verified exhibits.
2

or resolve factual disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510
F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may
consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the
motion must be treated as one for summary judgment under Rule 56,” but “[a]ll parties must be
given a reasonable opportunity to present all the material that is pertinent to the motion.”
Fed.R.Civ.P. 12(d). When the movant expressly captions its motion “in the alternative” as one
for summary judgment, and submits matters outside the pleadings for the court's consideration,
the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court
“does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports
Auth., 149 F.3d 253, 261 (4th Cir. 1998).

6

As earlier noted, Montgomery was informed of his

right to file a response to the Motion and the opportunity to submit affidavits, declarations, and
other documentary evidence. And, he has replied.
A district judge has “complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is offered in conjunction with a Rule
12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not
consider it.” 5 C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed.2004,
2011 Supp.). This discretion “should be exercised with great caution and attention to the parties’
procedural rights.” Id. at 149. In general, courts are guided by whether consideration of

6

In contrast, a court may not convert a motion to dismiss to one for summary judgment
sua sponte, unless it gives notice to the parties that it will do so. See Laughlin, 149 F.3d at 261
(stating that a district court “clearly has an obligation to notify parties regarding any courtinstituted changes” in the posture of a motion, including conversion under Rule 12(d)); Finley
Lines Joint Protective Bd. Unit 200 v. Norfolk So. Corp., 109 F.3d 993, 997 (4th Cir. 1997) (“[A]
Rule 12(b)(6) motion to dismiss supported by extraneous materials cannot be regarded as one for
summary judgment until the district court acts to convert the motion by indicating that it will not
exclude from its consideration of the motion the supporting extraneous materials.”).
3

extraneous material “is likely to facilitate the disposition of the action,” and “whether discovery
prior to the utilization of the summary judgment procedure” is necessary. Id. at 165–67.
Ordinarily, summary judgment is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. de Nemours and Co. v. Kolon Industries, Inc., 637
F.3d 435, 448 (4th Cir. 2011). However, “the party opposing summary judgment ‘cannot
complain that summary judgment was granted without discovery unless that party has made an
attempt to oppose the motion on the grounds that more time was needed for discovery.’ ”
Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans
v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)). Generally, to raise
adequately the issue that discovery is needed, the party opposing the motion must file an
affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for
specified reasons, it cannot present facts essential to justify its opposition,” without needed
discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d at 244–45 (discussing affidavit
requirement of former Rule 56(f)). Plaintiff has not filed an affidavit under Rule 56(d), but has
submitted an opposition.
I am satisfied that it is appropriate to address the motions (ECF 21, 28, 34, and 36) as
motions for summary judgment. This will facilitate the progress and resolution of the case.
Summary judgment is governed by Fed.R.Civ.P. 56(a), which provides, in part: “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.” See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The non-moving party must demonstrate that there are
disputes of material fact so as to preclude the award of summary judgment as a matter of law.
Matsushita Elec. Indus. Co. v. Zenith, Radio Corp., 475 U.S. 574, 586 (1986). The Supreme

4

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). A fact is “material” if it “might
affect the outcome of the suit under the governing law.” Id. at 248. There is a genuine issue as to
material fact “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.
“The 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 former Fed.R.Civ.P.
56(e)), cert. denied, 541 U.S. 1042 (2004). However, the court must “view the evidence in the
light most favorable to .... the nonmovant, and draw all inferences in [his] favor without
weighing the evidence or assessing the witness' credibility.” Dennis v. Columbia Colleton Med.
Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002).
Because plaintiff is self-represented, his submissions are liberally construed. See
Erickson v. Pardus, 551 U.S. 89 94 (2007). Nevertheless, the court must abide by the
“affirmative 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., 477 U.S. at
323–24).

5

FACTUAL BACKGROUND
Montgomery claims that at his arrest on January 5, 2013, he had cuts on his hand, wrist,
and finger from a vehicular accident which occurred just hours before. He also asserts that he
suffered back and neck pain and migraine headaches as a result of the accident. ECF 7 at 5.7
Plaintiff maintains that, as a result, he should have been transported to the hospital.
Montgomery, who acknowledges that he was “very high and drunk,” complains he was not even
offered band aids. ECF 1 at 3. Instead, he was questioned and then sent to the Carroll County
Detention Center ( “Detention Center”). Id. at 2-3.
Montgomery claims the medical treatment he subsequently received at the Detention
Center was inadequate. He faults the medical department for failing to recognize and treat his
drug withdrawal symptoms from “crack,” “dope,” “weed,” “meth,” “K-2,”8 and alcoholism,
bipolar disorder, ADHD (attention deficit hyperactivity disorder), and insomnia, noting he was
on medically prescribed Lithium and Adderall at the time of arrest. ECF 1 at 2-3. Yet,
Montgomery claims that one month elapsed before he was given his prescribed medications at
the Detention Center. Id.

Additionally, he complains that he was not provided with any

medication to alleviate pain caused by withdrawal symptoms.
Further, Montgomery alleges that he attempted suicide three times in one day in his jail
cell and should have been hospitalized for treatment. Id. at 3-4. In this regard, he asserts that he
7

Montgomery also claims he brings this action “because the Anne Arundel County
Police and the Westminster State police messed with my evidence in the murder case that is
pending for me….” ECF 33 at 11 ¶ III. Insofar as Montgomery is seeking to dispute evidence
introduced in his state criminal trial, he may not do so in this action. To this end, his motion to
discover evidence (ECF 42), related to his questioning at the police barracks, will be denied.
After Montgomery exhausts his available state court remedies, however, he may dispute his state
judgment and sentence by seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254.
8

“K-2” is a synthetic cannabis. See http://www.justice.gov/dea/pr/multimedialibrary/publications/ drug_of _abuse. pdf#page=62.
6

tried hanging himself twice and once jumped down from the top bunk face down. Id. at 4.
Montgomery seems to state that his suicide attempts exacerbated his pain from injuries sustained
in another vehicle crash, which occurred in 2008. Id. ECF 38 at 5.
The AACPD Defendants’ motion, supported by a memorandum and the affidavit of
Corporal Scott Pederson of the Anne Arundel County Police, provides the following information.
On January 5, 2013, at 11:48 a.m., Pederson was dispatched to a 7-Eleven convenience store in
Baltimore to check on a report of a parked vehicle with an inflated airbag and an apparently
intoxicated individual. At 12:01 p.m. Pederson and Sergeant Michael Galligan arrived and saw
Montgomery standing along the driver’s side of a gold Hyundai minivan. ECF 28, Exhibit 1.
When asked by the officers how he had arrived there, Montgomery informed them that someone
had driven him there. Pederson informed Montgomery that a witness had reported observing
Montgomery driving the vehicle and that Galligan was inside the convenience store checking the
video security tapes. Id.

Because Montgomery began to act “fidgety and nervous,” Pederson

patted him down to make sure he was unarmed.

Upon finding marijuana and cocaine in

Montgomery’s pockets, Pederson placed Montgomery in handcuffs. Pederson attests: “At no
time when I was observing or interacting with David Michael Montgomery did he appear to be in
need of immediate medical attention. At no time did he request to be provided immediate
medical attention.” Id. ¶ 9.
A routine telex check showed Montgomery and the minivan were sought in connection
with a homicide in Westminster, Maryland, and the Maryland State Police were contacted. Id.
Shortly thereafter, Maryland State Police officers J. Bingham and E. Winkler arrived to take
custody of Montgomery. Once custody was transferred, the AACPD Defendants had no further
contact with Montgomery. Id.

7

The MSP Defendants’ response is substantiated by declarations and records, and
indicates that Sergeant John Carhart was contacted by Anne Arundel County Police after
discovering Montgomery was wanted in connection with a homicide. Defendants Bigham and
Fornoff, along with members of the Maryland State Apprehension Unit, were already searching
in the Brookland Park, Maryland area for Montgomery, who was wanted for a suspected
homicide, and were alerted. ECF 36. Exhibit 1, at ¶ 3 and Exhibit 2 at ¶ 3. After defendants
Fornoff and Claycomb arrived, Montgomery was transferred to the custody of the Maryland
State Police.
Senior Trooper Winkler observed a cut on Montgomery’s hand. Id. Exhibit 4. The cut
was documented because Montgomery was wanted for homicide and the injury could have been
related to that offense. Id. Winkler’s investigation report indicates Montgomery had “a piece of
black electrical tape bandage his right index finger [sic].”9 Id. Attachment. In his Declaration,
Winkler stated he did not “recall seeing any other injuries to Mr. Montgomery. At no time did
Mr. Montgomery request medical assistance while in my presence.” Id. at ¶ 7.
Troopers Bigham and Fornoff attest that Montgomery was walked from an Anne
Arundel County Police Department vehicle to a Maryland State Trooper’s vehicle without
assistance, to effectuate the transfer. Id. Exhibit 1 ¶ 10 and Exhibit 2 ¶ 6. Corporal Bigham
avers that, to the best of his knowledge, he does “not recall observing any signs of injury to Mr.
Montgomery.

At no time did Mr. Montgomery request medical assistance” in Bigham’s

presence. Id. Exhibit 1 ¶ 9. Similarly, Fornoff and Winkler aver that they do not recall

9

The investigation report indicates that pieces of electrical tape were on the front of the
minivan hood and covered portions of numbers on the license plate. ECF 36, Exhibit 4,
attachment.
8

observing any signs of injury to Montgomery and at no time did he request medical assistance in
their presence. Id. Exhibit 2 ¶ 9, and Exhibit 4 ¶ 7.
During transport to the police barrack, Montgomery fell asleep and awoke once to ask
about the person who had been driving the van at the convenience store and was involved in the
traffic accident. Id. Exhibit 2, at ¶ 7. Trooper Fornoff answered that he was unaware of such a
person. Montgomery then went back to sleep. Id. Fornoff transferred custody of Montgomery
to a sergeant upon arrival at the barrack. Id. at ¶ 8.
Defendants Carhart, Eicher, Taylor, Claycomb, and Bishop were involved in securing the
scene, gathering evidence, and searching the residence of Montgomery’s sister in Anne Arundel
County. They assert that they had no contact or very limited contact with Montgomery. In their
declarations, defendants Carhart, Eicher, and Taylor state that they did not observe, communicate
or have any physical contact with Montgomery. Id. Exhibit 3, at ¶ 6, Exhibit 7 at ¶ 7, and
Exhibit 8 at ¶ 8. Defendants Claycomb and Bishop declare they never communicated or had
physical contact with Montgomery; the only time they observed Montgomery was while he was
seated in the back seat of the Anne Arundel County Police vehicle. Id. Exhibit 5 and 6. Further,
Bishop states that Montgomery did not request medical attention in his presence. Id. Exhibit 6.
Defendant Conmed, a private contractor providing medical services to inmates at the
Detention Center, has filed about 73 pages of Montgomery’s medical records. The records show
Montgomery entered the Detention Center on January 5, 2013, received an intake medical screen
at 9:55 p.m. on that date, conducted by the intake correctional officer, and at 1:00 a.m. on
January 6, 2013, a Conmed employee conducted a medical screening. ECF 21 at 5-12, 19.
Neither the intake nor medical screening noted any complaint or observation of physical injury.

9

Id. at 6.10

Later that day, Montgomery complained of chest pain. Id. at 20.

Conmed’s

memorandum in support of its dispositive motion states that “the chest pains were separately
addressed and no connection to withdrawal was associated with this incident,” (citing to ECF 2
Exhibit 2 at 19). ECF 21, Memorandum at 2.11 Montgomery was given an electrocardiogram,12
which returned normal results, and he was instructed to return to the health unit if his pain
persisted. Id. at 17, 20, and 64. He complained and was seen again for chest pain on January
13, 2013.

Id. at 17.

On January 7, 2013, Montgomery’s health assessment showed no

musculoskeletal tenderness or joint deformity. Id. at 12.
Because Montgomery reported he was using methadone and heroin prior to arrest, a
detoxification protocol was initiated at intake. Id. at 6-7. During the detoxification period,
January 6-10, 2013, Montgomery was observed and his vital signs were recorded. Id. at 72-73.
However, Conmed has not explained the detoxification protocol or addressed Montgomery’s
claim of medication delay.
Montgomery’s medical notes, dated January 7, 2013, reflect that officers noticed a “make
shift noose made of a blanket shredding balled up behind the mattress against the wall appx. 5 ft
away” from Montgomery. Id. at 19. Nothing was around or near Montgomery and no redness or
bruising to his head was observed. Id. A red mark was noted on Montgomery’s ear, but did not
continue beyond the ears. Id. Montgomery was placed in a suicide suit and he was put on
10

Montgomery, who reported facial and stomach pain, stated he has plates and screws on
the left side of his face from an injury he received in 2008 or 2009. ECF 21, Exhibit 2 at 9-10,
20.
11

Absent specific notation in the medication chart or an affidavit from a medical
provider, it is unclear to the court how counsel reached this conclusion.
12

An electrocardiogram (EKG or ECG) is a test that checks for problems with the
electrical activity of the heart. The test is performed to find the cause of unexplained chest pain
or symptoms of heart disease. See http://www.webmd.com/heart-disease/electrocardiogram.
10

suicide observation. Id. A separate entry, also dated January 7, 2013, indicates that the medical
provider was called after an officer heard a “thunk” in Montgomery’s cell.

Id. at 20.

Montgomery was found lying on the floor. Id. His vital signs were taken and he responded to
verbal stimuli. Id. Red marks were noted on his neck from ear to ear. Id. Montgomery, who
was able to stand unassisted, helped officers place him in a suicide suit and was put on suicide
watch. Id. at 18- 19. Plaintiff complained of left arm pain, but was able to move his arms and
legs. Id. at 19, 24-25. Less than one hour later, Montgomery asked why his mental health
medications had not been ordered. Id. at 19. It was explained to Montgomery that methadone
and Adderall are not typically given at the Detention Center, and that a referral had already been
made to a mental health doctor. Id at 18. Montgomery reportedly stated “fuck this place, I’ll let
my lawyer know.” Id. On January 7, 2013, plaintiff signed a consent form for his psychiatric
and medical records to be sent to Conmed. Id. at 65. Id.
At 7:15 the following morning, Montgomery was given a neurological examination. Id.
at 19, 24-25. The examination showed Montgomery ambulated without assistance and was calm
and cooperative. Id. Redness was noted from ear to ear, but there was no redness on the back of
Montgomery’s neck or head. Id.
A note to the chart on January 9, 2013, shows Montgomery requested medication for
pain and to help him sleep. A ligature mark around his neck was observed from the attempted
suicide. Id. at 18. Summary notations show Montgomery was seen by mental health providers
on January 7, 8, 9, 11, 14, 18, 21, 22, February 7, 8, 16, 18, and March 6, 19, 2013. Id. at 15, 16,
18, 28, 33-35, 37-51. The assessments, recommendations, and treatments provided by the
mental health practitioners are unstated in the record.

11

Conmed does not dispute Montgomery’s claim that one month elapsed before he was
provided medication. The medical chart, however, appears to show lithium was prescribed for
Montgomery on January 18, 2013, and February 6, 2013. Id. at 22-23. Montgomery was
prescribed Tylenol and/or Motrin on January 9, 10, and 21, 2013. Id.
DISCUSSION
In order to state a claim for the denial of medical care, a pre-trial detainee must allege
facts from which a trier of fact could find that the defendants’ acts or failures to act amounted to
“deliberate indifference” to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
[T]o establish a claim of deliberate indifference to medical need, the need must be both apparent
and serious, and the denial of attention must be both deliberate and without legitimate
penological objective.” Grayson v. Peed, 195 F.3d 692. 695 (4th Cir. 1999) (2000). This applies
in both the Eighth Amendment prisoner context and for detainees under the Fourteenth
Amendment. See Parrish ex rel Lee v. Cleveland, 372 F.3d 294, 301 (4th Cir. 2004); Martin v.
Gentile, 849 F.2d 863, 871 (4th Cir. 1988).
Deliberate indifference occurs when a defendant “knows of and disregards an excessive
risk to inmate health or safety; the [defendant] must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

The Fourth Circuit has said:

“Deliberate indifference requires a showing that the defendants actually knew of and disregarded
a substantial risk of serious injury to the detainee or that they actually knew of and ignored a
detainee’s serious need for medical care.” Young v. City of Mt. Rainer, 238 F.3d 567, 576 (4th
Cir. 2001). So, the evidence must show that the official in question subjectively recognized a
substantial risk of harm. It is not enough that the official should have recognized the risk; he or

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she must have perceived the risk and recognized that his/her actions were inappropriate in light
of that risk. Parrish ex rel. Lee, 372 F.3d at 302-303 (4th Cir. 2004).
A health care provider must have actual knowledge of a serious medical condition, not
just knowledge of the symptoms. See Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir. 1998).
“Conduct that is merely negligent, or even reckless, is insufficient.” Brown v. Middleton, 362
F.App’x. 340, 344 (4th Cir. 2010). Rather, a defendant must have actual notice of the danger
because the “law cannot demand that officers be mind readers.” Grayson v. Peed, 195 F.3d at
695.
AACPD Defendants
Montgomery faults the AACPD Defendants for failing to transport him to a hospital
instead of interrogating him and sending him to the Detention Center. The evidence shows the
AACPD Defendants questioned Montgomery, patted him down, arrested him, and transferred
him to the custody of the Maryland State Police. Defendants’ affidavits establish Montgomery
did not ask for medical assistance, nor did he show any serious physical injury warranting
immediate medical care or transportation to a hospital. The AACPD Defendants’ account of the
arrest and Montgomery’s lack of serious injury is bolstered by the accounts of the MSP
Defendants, and the intake reports written when Montgomery was received at the Detention
Center. Neither the custody screening nor the medical screening reports include any complaint
of physical injury or any observation of injury.
Montgomery has failed to provide an affidavit or verified pleadings suggesting a dispute
of material fact. In contrast, the AACPD Defendants have shown that there is no genuine dispute
as to any material fact. Therefore, they are entitled to summary judgment as a matter of law.

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MSP Defendants
The MSP Defendants’ evidence shows Montgomery was transferred to the custody of
Trooper Fornoff and transported to the Maryland State Police barrack. There is no evidence that,
at the time, Montgomery had serious injuries warranting immediate medical assistance.
According to the evidence submitted to the Court, Montgomery did not request medical
assistance. Rather, the evidence shows Montgomery walked unassisted to the Trooper’s care
when custody was transferred and fell asleep during the ride to the barrack. Defendants Fornoff,
Winkler, and Bigham state in their affidavits that they do not recall observing any signs of injury
to Montgomery and at no time did he request medical assistance in their presence. Further,
Montgomery does not dispute that defendants Carhart, Eicher, Taylor, Claycomb, and Bishop
had no contact or very limited contact with him. And, as noted above, Detention Center intake
reports contain no complaint or observation of physical injury.
Thus, even when the facts are viewed in the light most favorable to Montgomery, no
dispute of material fact is shown. Therefore, the MSP Defendants are entitled to summary
judgment as a matter of law. 13
Conmed
Montgomery faults Conmed for failing to recognize and treat his drug withdrawal
symptoms. Additionally, he complains that he was not given medication to alleviate pain caused
by withdrawal symptoms. He also states that he was on medically prescribed Lithium and
Adderall at the time of arrest, yet he did not receive his prescribed medication for an entire
month. During the first days of his confinement, Montgomery claims he attempted suicide three
times.
13

Given this determination, the court need not reach defendants’ qualified immunity

defense.
14

Conmed posits that Montgomery’s medical records show that he had no observable injury
necessitating medical treatment, nor did he bring attention to such injury at the time of intake.
Plaintiff was placed on a detoxification protocol, and he was able to ambulate and respond after
his suicide attempt. On this basis, Conmed asserts that deliberate indifference to serious medical
needs has not been shown, and Montgomery’s medical care was not inadequate. Conmed also
seeks summary judgment because liability under 42 U.S.C.§ 1983 may not be premised on
principles of respondeat superior.
To be sure, vicarious liability based on respondeat superior is generally inapplicable to §
1983 actions. See Vinnedge v. Gibbs, 550 F.2d 926, 927–99 (4th Cir. 1977); see also Monell v.
Department of Social Services of City of N.Y., 436 U.S. 658, 691 (1978). However, the claims
are not predicated on vicarious liability. Moreover, Conmed’s exhibits are not entirely selfexplanatory, and Conmed has not addressed the nature of the “detox protocol,” Montgomery’s
assertions of multiple suicide attempts, or his claims concerning delay in providing medication.
Indeed, no declarations were provided by a medical provider who treated Montgomery at the
Detention Center. Further, although it appears Montgomery is shown as having been seen by
unnamed mental health practitioners, their findings, particularly in regard to Montgomery’s
bipolar disorder, disruption of his Lithium, and suicide attempts are absent from the record
before this court.
Mindful that Montgomery is a pro se litigant and that there are genuine issues of material
fact concerning the care that plaintiff was provided, the court finds appointment of counsel
necessary so that discovery may be conducted to amend the complaint to name the medical and
mental health practitioners who attended to Montgomery during his confinement at the detention
center. Accordingly, Conmed’s Motion for Summary Judgment will be denied.

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Warden Hardinger
Warden Hardinger seeks dismissal of the claims against him, or summary judgment, and
adopts and incorporates by reference Conmed’s motion to dismiss, or in the alterative, motion for
summary judgment. As a nonmedical correctional supervisor, Hardinger is entitled to rely on the
medical judgment and expertise of prison physicians and medical staff concerning the course of
treatment necessary for inmates. See Shakka v. Smith, 71 F.3d 162, 167 (4th Cir. 1995); see also
Miltier v. Beorn, 896 F.2d 848, 854–55 (4th Cir. 1990) (stating supervisory prison officials are
entitled to rely on professional judgment of trained medical personnel and may be found to have
been deliberately indifferent by intentionally interfering with an inmate's medical treatment
ordered by such personnel).
Montgomery does not allege Hardinger was personally involved in his medical treatment
or otherwise impeded it. As noted, there is no respondeat superior liability available to a plaintiff
under § 1983. Consequently, Hardinger’s motion will be granted.
CONCLUSION
For the above reasons, the motions filed by the AACPD Defendants (ECF 28), the MSP
Defendants (ECF 36), and Warden Hardinger (ECF 34), treated as motions for summary
judgment, will be granted. Conmed’s motion (ECF 21), treated as a motion for summary
judgment, will be denied. A separate Order follows.

February 12, 2014
Date

/s/
Ellen Lipton Hollander
United States District Judge

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