Koenig v. Cortez et al

Filing 38

MEMORANDUM filed. Signed by Judge J. Frederick Motz on 12/30/2014. (c/m 12/30/2014)(ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

BRUCE W. KOENIG, #288937
Plaintiff,
v.

*
* CIVIL ACTION NO. JFM-13-3603

K. CORTEZ, et al.

*
Defendants.
*****
MEMORANDUM

PROCEDURAL HISTORY
Bruce Koenig (AKoenig”), an inmate formerly confined at the maximum security facility
North Branch Correctional Institution (ANBCI@), filed this civil rights complaint and affidavit on
November 27, 2013. He alleges that Nurse Cortez violated his Eighth Amendment right to
necessary medical care and his rights under the Americans with Disabilities and Rehabilitation
Acts when (1) in October of 2013, she failed to intervene on his behalf when he was forced on an
examination table by correctional officers and taken back to his cell and (2) in November of
2013, she saw him for a sick-call visit and spoke away from him, so that he could not hear what
she was saying. He accuses the nurse of screaming at him and walking out of the examination
room without conducting an examination. ECF No. 1.
Koenig additionally complains that NBCI correctional officers denied him showers and
out-of-cell activity during a 2013 prison lockdown, refused him medical treatment in October
and November of 2013, improperly ended a medical examination when he could not get up on an
examination table; and caused him to experience severe pain when cuffing him from behind. Id.

PENDING MOTIONS
Defendants have filed motions to dismiss or, in the alternative, motions for summary
judgment. ECF Nos. 16 & 22. Although Koenig was provided notice of those filings and
afforded several extensions to file responses, defendants’ pleadings, construed as motions for
summary judgment, remain unopposed. An oral hearing is not necessary. The matter may be
determined on the briefing before the court. See Local Rule 105.6. (D. Md. 2014).
STANDARD OF REVIEW
Under Fed. R. Civ. P. 56(a):
A party may move for summary judgment, identifying each claim or defense--or
the part of each claim or defense--on which summary judgment is sought. 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 court should state on the record the reasons for granting or denying
the motion.
Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil
Procedure when there is no genuine issue as to any material fact, and the moving party is plainly
entitled to judgment in its favor as a matter of law. 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 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.

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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.
In undertaking this inquiry, a court must view the facts and the reasonable inferences
drawn therefrom Ain a light most favorable to the party opposing the motion.@ Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)); see also E.E.O.C. v. Navy Federal Credit Union, 424
F.3d 397, 405 (4th Cir. 2005). The mere existence of a Ascintilla@of evidence in support of the
non-moving party=s case is not sufficient to preclude an order granting summary judgment. See
Anderson, 477 U.S. at 252.
This court has previously held that a Aparty cannot create a genuine dispute of material
fact through mere speculation or compilation of inferences.@ Shin v. Shalala, 166 F.Supp.2d 373,
375 (D. Md. 2001) (citation omitted). Indeed, the court has an affirmative obligation to prevent
factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d
774, 778-79 (4th Cir. 1993) (quoting Felty v. Graves-Humpreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
DISCUSSION
Facts
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Defendant Cortez acknowledge that Koenig is a 65 year-old male with a number of
medical problems, including asthma, hypertension, multiple allergies, Meniere’s disease,1 and
back pain. ECF No. 16 at Exs. 1-4. She maintains that in September of 2013, Koenig was seen
in the Chronic Care Clinic (“CCC”) for his conditions and complained that his Meniere’s disease
caused him dizziness and hearing loss. On examination, both of Koenig’s ears were normal to
inspection and hearing in both ears was found to be grossly intact. ECF No. 16, Ex. 1.
On October 10, 2013, Koenig was seen by Nurse Cortez in response to his sick-call
request regarding his medical assignment. Prior to being taken to the examination room, Koenig
was observed by custody officers walking around his cell and moving his belongings without the
use of his cane. Upon arrival in the examination room, however, Koenig was stumbling and had
an unsteady gait. Cortez noted that Koenig had entered her personal space and refused to be
seated as instructed. He was removed from the medical examination room by custody for
refusing to be seated when requested. Cortez maintains that because the purpose of the visit was
for renewal of Koenig’s medical assignments, no treatment was required at the time. Id., Ex. 1:
Ex. 2 at Cortez Aff.
On November 6, 2013, Koenig was again seen by Cortez in response to his request for
medical assignments and lab work.

According to the record, Koenig was removed from the

examination room per Cortez’s request because he refused to answer medical assessment
questions.

Cortez observed that Koenig “pretends to have a hearing impairment when with

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Meniere's disease can cause severe dizziness, a roaring sound in your ears called tinnitus,
hearing loss that comes and goes and the feeling of ear pressure or pain. It usually affects just one ear and
is a common cause of hearing loss. Scientists believe that it has to do with the fluid levels or the mixing
of fluids in the canals of your inner ear. Symptoms occur suddenly and can happen as often as every day
or as seldom as once a year. An attack can be a combination of severe dizziness or vertigo, tinnitus and
hearing loss lasting several hours. See www.nlm.nih.gov/medlineplus/menieresdisease.html.

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medical staff but responds…to officers standing a sizeable distance away.” ECF No. 16, Ex. 1;
Ex. 2 at Cortez Aff. Cortez again affirms that no medical assessment or treatment of Koenig was
necessary at that time because he was merely seeking the renewal of medical assignments and
lab work. Id.
The state defendants maintain that on August 5, 2013, NBCI was placed on a lockdown
due to numerous assault on staff and inmates. In response, the NBCI Warden decided that all
inmates were to be handcuffed and escorted to showers and recreation. The shower logs show
that Koenig was offered and refused showers several times, while he received showers on six
separate occasions from September through November of 2013. ECF No. 22, Ex. 2 at Brewer
Decl.

Exhibits submitted indicate that Koenig himself voluntarily signed off showers for the

duration of the lockdown. Id., Ex. 3. The state defendants affirm that policy mandated that
inmates were to be cuffed behind the back for escort, unless medical reasons prohibited such
cuffing. On October 24, 2013, Koenig was handcuffed behind his back without incident or
complaints while his property was inventoried.

Id., Exs. 4 & 5 at Shambaugh and McKenzie

Decls. They further assert that although Koenig filed administrative remedy procedure (“ARP”)
grievances, he filed no ARPs regarding the alleged denials of showers and recreation or the
medical incident of October 24, 2013. Id., Ex. 6.
42 U.S.C. § 1997e Administrative Exhaustion Requirements
The state defendants move to dismiss the complaint because Koenig has failed to exhaust
administrative remedies. The Prisoner Litigation Reform Act provides, in pertinent part:
(a) Applicability of administrative remedies
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
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confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. ' 1997e.
As an inmate, Koenig is subject to the strict requirements of the exhaustion provisions. It
is of no consequence that plaintiff is aggrieved by a single occurrence, as opposed to a general
conditions of confinement claim. See Porter v. Nussle, 534 U.S. 516, 528 (2002) (no distinction
is made with respect to exhaustion requirement between suits alleging unconstitutional
conditions and suits alleging unconstitutional conduct). Exhaustion is also required even though
the relief sought is not attainable through resort to the administrative remedy procedure. See
Booth v. Churner, 532 U.S. 731, 741 (2001). A claim which has not been exhausted may not be
considered by this court. See Jones v. Bock, 549 U.S. 199, 220 (2007).
Administrative remedies must, however, be available to the inmate and this court is
“obligated to ensure that any defects in administrative exhaustion were not procured from the
action or inaction of prison officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th
Cir. 2007). The Fourth Circuit has addressed the meaning of Aavailable@ remedies:

[A]n administrative remedy is not considered to have been available if a prisoner,
through no fault of his own, was prevented from availing himself of it. See
Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir.2007); Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir.2006). Conversely, a prisoner does not exhaust
all available remedies simply by failing to follow the required steps so that
remedies that once were available to him no longer are. See Woodford v. Ngo, 548
U.S. 81, 89 (2006). Rather, to be entitled to bring suit in federal court, a prisoner
must have utilized all available remedies Ain accordance with the applicable
procedural rules,@ so that prison officials have been given an opportunity to
address the claims administratively. Id. at 87. Having done that, a prisoner has
exhausted his available remedies, even if prison employees do not respond. See
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006).
Moore v. Bennette, 517 F. 3d 717, 725 (4th Cir. 2008).
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Thus, Koenig’s claims must be dismissed, unless he can show that he has satisfied the
administrative exhaustion requirement under the PLRA or that the state defendants have forfeited
their right to raise non-exhaustion as a defense. See Chase v. Peay, 286 F.Supp.2d 523, 528
(D.Md. 2003).
In light of Koenig’s failure to rebut the state defendants’ affirmative defense that the
claims presented in the complaint have not been exhausted through the administrative remedy
procedures in place at the detention center, they are entitled to dismissal of the claims against
them.
Eighth Amendment Claim
The Eighth Amendment prohibits Aunnecessary and wanton infliction of pain@ by virtue
of its guarantee against cruel and unusual punishment. See 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 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 serious medical
need and that, subjectively, the prison staff members were 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).
Where, as here, Koenig claims that he was denied treatment in October and November of
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2013, but fails to allege that he was denied medical care for a serious medical need or alleged
that he experienced a serious medical injury, no Eighth Amendment violation has been
illustrated.

Claims under the American’s with Disabilities Act (“ADA”)
and Rehabilitation Act (“RA”)
To establish a prima facie case under Title II of the ADA, Koenig must show that: (1) he
has a disability; (2) he was either excluded from participation in or denied the benefits of some
public entity's services, programs, or activities for which he was otherwise qualified; and (3) the
exclusion, denial of benefits, or discrimination was by reason of his disability. See Constantine v.
George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005); Baird v. Rose, 192 F.3d 462, 467 (4th
Cir. 1999). States are obligated to make “reasonable modifications” to enable the disabled
person to receive the services or participate in programs or activities. 42 U.S.C. § 12131 et seq.
A reasonable modification does not require the public entity to employ any and all means to
make services available to persons with disabilities. Rather, the public entity is obligated to
make those modifications that do not “fundamentally alter the nature of the service or activity of
the public entity or impose an undue burden.” Bircoll v. Miami-Dade County, 480 F.3d 1072,
1082 (11th Cir. 2007).
Defendants correctly assert that Koenig has not named the proper party to pursue an
ADA claim because the named defendants, employees of a public entity sued in their individual
capacities, are not a “public entity.” ECF No. 22 at Memorandum, pp. 12-13, see also 42 U.S.C.
§12131(1)(A) – (C). Notwithstanding the failure to name proper parties, Koenig’s claim fails.
Defendants correctly observe that Koenig does not have an impairment which substantially limits
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one or more of the “major life activities,” nor has he demonstrated that he has been denied
participation or excluded from any benefit, program or therapy due to his disability. Koenig was
removed from the examination room because of non-compliance with directives issued by
medical personnel, not because of his disability and, thus, a prima facie case of an ADA or RA
claim is not established. See, e.g. Miller v. Hinton, 288 Fed. Appx. 901 (4th Cir. 2008) (prison's
alleged denial of access to colostomy bags and catheters by inmate, who was a paraplegic
confined to a wheelchair who used such supplies for urinary bladder control, did not constitute
disability discrimination in violation of ADA absent a showing that inmate was treated in that
manner because of his disability); Burger v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005)
(medical care provided to inmate for his diabetes could not be basis for RA action); Fitzgerald v.
Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (inmate's claims under RA and ADA
were properly dismissed for failure to state claim as they were based on medical treatment
decisions); Spencer v. Easter, 109 Fed. Appx. 571, 573 (4th Cir. 2004) (failure to provide timely
refills of prescription drugs did not amount to an ADA violation where there was no showing
that it was done based on prisoner's disability); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.
1996) (holding that the ADA is not “violated by a prison's simply failing to attend to the medical
needs of its disabled prisoners. No discrimination is alleged; Bryant was not treated worse
because he was disabled.”).

Given the undisputed facts, defendants are entitled to summary

judgment in their favor on Koenig’s claim under the ADA and the RA.

Date: _December 30, 2014____

___/s/_______________________
J. Frederick Motz
United States District Judge
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