Cooper v. Mahler et al

Filing 24

MEMORANDUM. Signed by Judge J. Frederick Motz on 9/9/2015. (c/m 9/10/15 bas, Deputy Clerk)

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FILED
U.S. DiSTR1Cr

IN THE UNITED STATES

DISMl!trcOURT.:"L:\~!1

FOR THE DISTRICT OF
ROBERT COOPER, # 209556
Plaintiff,
v.

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COU~T

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PH 2: 45

CLEEi\'S CFFICE
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, CiviTActioriNb:'JFM-14-629

PEGGY MAHLER, RNP,
SGT. CRUMPAC,
JOHN/JANE DOE, DIRECTOR, RN,
GREGG HERSHBERGER, SECRETARY,
KIM MARTIN, RN,
ALAN WILT, RN,
AVA JOUBERT,
JANICE GILMORE, MEDICAL
ADMINISTRATOR,
COLIN OTTEY, MD,
WEXFORD HEALTH SOURCES,
NURSE JENNIFER, RN,
LEA WILEY, NURSE LPN,
DENNIS MARTIN, RN,
QUINTA LUM, PA,
BRAD BRINEGAR,
BRETT WILBURN,
WILLIAM LOGSDON
Defendants.
MEMORANDUM
Pending is self-represented
U.S.C.

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plaintiff Robert Cooper's

complaint filed pursuant to 42

1983, Defendants Wexford Health Sources, Inc., Peggy Mahler, P.A., Quinta Lum,

P.A., Dennis Martin, R.N., Lee Wiley, LPN, Kim Martin, R.N., Alan Wilt, R.N., Ava Joubert,
M.D., Colin Ottey, M.D., and Janice Gilmore (collectively "Medical Defendants"),

by their

counsel, have filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (ECF 14). For reasons to follow, the motion to dismiss shall be granted in part and
denied in part. I

1 By separate order the claims against correctional officials Sgt. Crumpac. Gregg Hershberger,
Secretary, Brad
Brinegar, Brett Wilburn, and William Logsdon were consolidated with Robert Cooper v. Brinegar, et at, Civil
Action JFM-13-3692.

BACKGROUND
Cooper is an inmate in the custody of the Maryland Department of Correction.

His claims

against the Medical Defendants are predicated on the medical treatment he was provided after he
was involved in a use of force incident at Western Correctional Institution in Cumberland,
Maryland, on October 22, 2013.

As relief, Cooper is requesting compensatory

damages of

$75,000 and "future damages" of $350,000 for breach of duty, intentional infliction of emotional
distress, negligent infliction of emotional distress, gross negligence, medical malpractice and/or
negligence.

ECF 1, ~~ 20-22.

Cooper was taken to the medical department on October 22, 2013 after the incident, where
he was examined by defendant Kim Martin, R.N. ("Martin"). Cooper alleges "correctional staff'
permitted Martin to address his exposure to pepper spray, but not his physical injuries. (ECF 1, ~
1).2 Cooper wanted x-rays and asked Martin to refer him to an eye doctor, a dentist, and a
psychologist.

!d. ~ 2.

Cooper also claims that after he informed "Nurse Jennifer") that he was assaulted by
correctional officers, she did not give him his medication for his pre-existing illnesses.

Id. ~ 3.

He complained to defendant Quinta Lum, P.A., ("Lum") that no one had addressed his physical
injuries or medical issues after the incident.

Lum responded she could not provide treatment

unless he first submitted a sick call slip. !d. ~ 4. Cooper acknowledges prescribed medication to
treat his eye. Id.

Notably, Cooper does not specify the names of the "correctional staff' or particularize in what manner they did
not permit Martin to treat his physical injuries. Cooper's claim against "correctional staff' will be addressed in Civil
Action No. JFM-13-3692.
2

Counsel for Wexford Health Sources, Inc., the contractor of medical services at WCI, indicates she was unable to
identify any individual named "Nurse Jennifer." ECF 14, n. 2. Service has not been obtained on "Nurse Jennifer"
or "John/Jane Doe, Director, R.N" and both will be dismissed from this action by separate order. Notably, Cooper
does not claim he suffered any harm as a result of this purported one time failure to provide him medication.

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2

I.

On October 24, 2013, Cooper informed Martin that his eye had worsened. He indicated he
had not received routine medication prescribed for high blood pressure and requested x-rays and
referrals for eye doctor, dentist, and psychologist

consultations. Id.

Cooper claims he that

informed defendant Lea Wiley ("Wiley") that he had not received his routine medication, and
Wiley responded that security had "packed" his medication and property. Id. ~ 6.4

Further,

Cooper claims he informed defendant Peggy Mahler, P.A. ("Mahler") and Wiley that he had
been assaulted by correctional officers. Mahler told him she would refer him to an eye doctor
and the psychology department and order an x-ray.
Cooper alleges he sent three sick call slips to Martin on November 20,2013.

He complained

of blurred vision and that he had not been seen for his psychological and physical injuries. Id.
~ 9. He claims that in November and December of 2013, he complained to Martin, Wiley and
Ava Joubert, M.D. about blurred vision.

He maintains that each stated an eye doctor referral

would be submitted. Id. ~~ 14-16.
Lastly, Cooper asserts that between October 23, 2013 and February 7, 2014, an unnamed
"Scheduling Nurse," defendant Janice Gilmore, a medical administrator, and defendant Colin
Ottey, M.D., were contacted concerning his request for eye and psychology consultations.

Id. ~

17.
DISCUSSION
Complaints

filed by self-represented

plaintiffs such as Cooper are "to be liberally

construed and a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citations omitted). Nonetheless, a pro se complaint must at least meet a minimal threshold of
plausibility
4

Cooper was moved to a different cell after the use offorce incident on October 22,2014. (ECF 1, ~ 6).

3

The purpose of a motion to dismiss pursuant to Rule 12(b)( 6) is to test the sufficiency of
the plaintiffs complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999).
Except in certain specified cases, a plaintiffs

complaint need only satisfy the "simplified

pleading standard" of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002), which
requires a "short and plain statement of the claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2).

In order to survive a motion to dismiss under Rule 12(b)(6), "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 (2009) (quoting Bell At!. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Generally, when ruling on a 12(b)(6) motion, the court assumes that the
facts alleged in the complaint are true and draws all reasonable factual inferences in the
nonmoving party's favor. Edwards, 178 F.3d at 244. A complaint need not provide "detailed
factual allegations," but it must "provide the grounds of [the plaintiffs]

entitlement to relief'

with "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of
action." Twombly, 550 U.S. at 555(internal quotations omitted).
Prior to bringing a medical malpractice claim under Maryland law, a plaintiff must
comply with the requirements of Maryland's Health Care Malpractice Claims Act. See Md.Code
(2006 repl.vol. 2012 supp.),

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3-2a-Ol of the Courts and Judicial Proceedings Article ("C. J.").

A plaintiff must exhaust his medical malpractice clairri before the Maryland Health Claims
Alternative Dispute Resolution Office as a condition precedent to any judicial action. See C.J.

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3-2a-02; Carroll v. Konits, 400 Md. 167, 172 (2007). Cooper provides no evidence that he has
complied with this requirement. Accordingly, Cooper's claims of medical malpractice and/or
negligence will be dismissed.

4

Cooper remaining allegations, albeit inartfully stated, suggest he is claiming defendants
acted with deliberate indifference to his serious medical needs in violation of his rights under the
Eighth Amendment of the United States Constitution. As Cooper presents his claims with a
declaration
inappropriate.

of their veracity

(ECF 1, p. 17), dismissal the complaint

in its entirety is

Defendants will be granted thirty days to file a the dispositive motion supported

by verified exhibits and affidavits addressing the claims presented herein. Plaintiff is granted
thirty days thereafter to reply. In the event the Medical Defendants' dispositive pleading is not
filed within the requisite time, a scheduling order shall be entered.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss (ECF 14) IS GRANTED in part and
DENIED in part.

A separate order follows.

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