Mitchell v. Ottey et al

Filing 67

MEMORANDUM. Signed by Judge James K. Bredar on 10/5/2016. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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JASON GREGORY MITCHELL,

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Plaintiff

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v.

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COLIN OTTEY et al.,
Defendants
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CIVIL NO. JKB-14-3152

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MEMORANDUM
I. Background
Plaintiff Jason Gregory Mitchell is an inmate in North Branch Correctional Institute in
Cumberland, Maryland. (Am. Compl. ¶ 1, ECF No. 57.) Originally acting pro se, Mitchell filed
a complaint against Janette Clark, CRNP, and Colin Ottey, M.D., alleging he began suffering
pain in his left arm and that the left side of his body was numb on May 22, 2014. (Compl., ECF
No. 1.) He provided detailed allegations as to the course of medical care he received from the
Defendants over several months, and he alleged his condition worsened and that the many visits
he made to them resulted in no pain relief. (Id.) He complained that he had considerable
difficulty in walking, but was denied feed-in status because “they think its [sic] best for me to
walk to the kitchen to eat.” (Id.) Because it was painful for him to walk, Mitchell said he
skipped going to some meals. (Id.) One doctor thought he had a stroke. (Id.) He alleged he put
in numerous requests for sick call, but “the medical personnel just will not do anything to help
with [his] medical condition.” (Id.)

Defendants filed a motion to dismiss (ECF No. 7), which was denied (ECF No. 13). The
Court appointed counsel for Mitchell (ECF Nos. 19, 20). (Over the course of several months,
eight separate pro bono appointments were made and stricken before appointed counsel filed a
notice of appearance. See ECF Nos. 20 – 47.) Shortly afterward, the case was reassigned to the
undersigned.

In response to the parties’ status report (ECF No. 49), the Court entered a

scheduling order (ECF No. 50), pursuant to which Mitchell’s counsel sought and was granted
leave to file an amended complaint (ECF Nos. 51, 56). Following the filing of the amended
complaint, which considerably amplified the factual allegations, asserted specific theories for
relief, and added Wexford Health Sources, Inc. (“Wexford”) as a Defendant (ECF No. 57), the
parties jointly sought relief as to the case schedule (ECF No. 60). The Court vacated the earlier
scheduling order, ordered that fact discovery should remain open, and ordered that “should it be
necessary, the Parties shall submit new discovery deadlines within ten (10) days of the Court
entering a ruling on Defendants’ responsive pleading to Plaintiff’s Amended Complaint.” (ECF
No. 61.) Defendants then filed their motion to dismiss for failure to state a claim and/or motion
for summary judgment. (ECF No. 62.) The motion has been briefed (ECF Nos. 65, 66), and no
hearing is necessary to resolve it, Local Rule 105.6 (D. Md. 2016). It will be granted in part and
denied in part.
II. Standard of Dismissal for Failure to State a Claim
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)). Facial plausibility exists “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, 556 U.S. at 678. An inference of a mere
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possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the
Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the
speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ . . . Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to
dismiss a court must accept as true all factual allegations in the complaint, this principle does not
apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.
III. Standard for Summary Judgment
“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.” Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any
genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing
the motion, then a genuine dispute of material fact is presented and summary judgment should be
denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the [opposing party’s] position” is insufficient to
defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to
be drawn from the underlying facts, must be viewed in the light most favorable to the opposing
party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by
affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial,
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Fed. R. Civ. P. 56(c)(1). Supporting and opposing affidavits are to be made on personal
knowledge, contain such facts as would be admissible in evidence, and show affirmatively the
competence of the affiant to testify to the matters stated in the affidavit. Fed. R. Civ. P. 56(c)(4).
IV. Analysis
Defendants have advanced a number of arguments. The Court will address first those
arguments that appear to be appropriately considered on a motion to dismiss for failure to state a
claim for relief.
A. Whether Wexford Is a “Person” Within the Meaning of 42 U.S.C. § 1983
First, Wexford asserts it is not a “person” within the ambit of 42 U.S.C. § 1983 and,
therefore, cannot be sued under this statute. The undersigned dealt with this same issue in
Wimbush v. Matera, Civ. No. JKB-11-1916, 2013 U.S. Dist. LEXIS 102509, at *3 n.2 (D. Md.
July 23, 2013). Precedent from the United States Court of Appeals for the Fourth Circuit is
unambiguous on this point. A private business is considered a “person” that may be held liable
under 42 U.S.C. § 1983. Austin v. Paramount Parks, Inc., 195 F.3d 715, 727-29 (4th Cir. 1999).
Wexford’s first argument is without merit.
B. Whether Plaintiff Failed to State a Claim in Count II (Supervisory Liability)
In Count II, Mitchell has sued Wexford under § 1983 on a theory of supervisory liability.
Although Wexford has challenged the complaint’s adequacy of allegations establishing pervasive
conduct to support supervisory liability, that is not why the Court now rules that Mitchell’s
Count II fails to state a claim for relief. He has provided no example to the Court of a private
business being held liable under the named theory. Certainly, the Fourth Circuit has determined
that individuals may be liable on this basis, but it has expressed a restrictive view of corporate
liability under § 1983. In Austin, the Fourth Circuit stated that a private corporation may be held
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liable under 42 U.S.C. § 1983 “only when an official policy or custom of the corporation causes
the alleged deprivation of federal rights.” Id. at 728. See also Rojas v. Alexander’s Dep’t Store,
Inc., 924 F.2d 406, 408-09 (4th Cir. 1990) (noting policy or custom liability established by
Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978), had been
applied to private businesses). Given that emphatic statement in a precedential case, this Court
concludes Wexford may not be sued for supervisory liability in a § 1983 case. Consequently,
Count II will be dismissed.
C. Whether Plaintiff Failed to State a Claim in Count III (Monell liability)
In Count III, Mitchell has pled a policy and custom of Wexford, specifically, the
Collegial Review process, has caused a denial to him of necessary medical care. An example of
this was set forth in the complaint:
22.
In February 2015, Mr. Mitchell met with Dr. Mahboob Ashraf. Dr. Ashraf
diagnosed pain, numbness, and paresthesia. Dr. Ashraf appropriately ordered an
MRI of the lumbosacral region in order to diagnose the cause of Mr. Mitchell’s
deteriorating condition. This was the first time that any provider ordered imaging
capable of diagnosing Mr. Mitchell’s symptoms. Mr. Mitchell did not receive an
MRI in February 2015.
23.
In March 2015, Dr. Ashraf again ordered an MRI. Mr. Mitchell did not
receive an MRI in March 2015 either.
24.
Dr. Ashraf’s MRI orders were denied by Wexford and by supervisory
employees. The denial of these orders for an MRI was not communicated to Mr.
Mitchell. There was no explanation for the denial of the MRI. It appears the MRI
was denied pursuant to Wexford’s “Collegial Review” process, an official
company policy regarding off-site care, diagnostic imaging, and specialty
consultations.
“While ‘“official policy” often refers to formal rules or understandings,’ corporate
liability may also ‘be imposed for a single decision by [corporate] policymakers under
appropriate circumstances.’” Rodriguez v. Smithfield Packing Co., 338 F.3d 348, 355 (4th Cir.

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2003) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986) (alteration in original)).
Either of these varieties of Monell liability is adequately stated in the complaint.
Wexford makes an additional, unpersuasive argument. It contends that Mitchell alleges
“no specific facts in support of Wexford’s policies and customs beyond those concerning his
own injury.” (Defs.’ Mot. Dismiss Supp. Mem. 10.) What Mitchell alleges is that Wexford had
an official policy or custom known as the Collegial Review Process and that application of that
process to Mitchell resulted in the denial of medical care, specifically, the overruling of the
treating physician’s order for an MRI. The complaint sufficiently states a claim for relief. The
motion to dismiss Count III will be denied.
D. Whether Defendants Are Entitled to Summary Judgment on the § 1983 Claims
Defendants argue the record does not support Mitchell’s complaints under § 1983.
(Id. 4.) Mitchell cites to some of the same record portions relied upon by Defendants and notes
contradictory evidence therein. (Pl.’s Opp’n 10-11, ECF No. 65.) Further, he contends, with
reason, that Defendants argue his statements were inconsistent with what was noted in the
medical records and, therefore, Defendants are asking the Court to make credibility choices.
(Id. 10.) The Court cannot make credibility choices at this point in the proceedings. Finally,
Mitchell’s counsel says he has not had a fair chance to conduct discovery and anticipates
depositions of expert witnesses to be important in that process; he also wants to conduct
depositions of Ottey, Clark, and a Wexford representative. (Id. Ex. 1, Bragdon Aff.) Further,
Mitchell says he has not received adequate responses to his discovery requests and has been
communicating with defense counsel in an effort to resolve those issues. (Id.)
As earlier noted, the parties jointly requested that, pending a ruling on Defendants’
then-anticipated motion to dismiss, fact discovery would remain open and that the parties would

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jointly propose new discovery deadlines after the Court’s ruling, if the case was unresolved. The
Court concludes that a genuine dispute of material fact exists on the current record and that
Mitchell is entitled to full discovery on his complaint. As a result, Defendants’ alternative
motion for summary judgment will be denied.
E. Whether Supplemental Jurisdiction Should Be Exercised Over Count IV
Defendants contend the Court should decline to exercise supplemental jurisdiction over
Count IV because “this Court has consistently refused to apply supplemental jurisdiction over
state law medical malpractice claims in a prisoner § 1983 lawsuit.” (Defs.’ Mot. Dismiss Supp.
Mem. 12.) Defendants cite several cases from this Court to support their argument (id. 12-13),
but all of them are inapposite. Those cases all granted summary judgment for the respective
defendants and, appropriately, declined to exercise supplemental jurisdiction over the state law
negligence claims. Here, the Court is not disposing of the federal claims and, thus, no basis
exists for declining to exercise supplemental jurisdiction over Mitchell’s negligence claim in
Count IV.
V. Conclusion
Wexford is entitled to dismissal of the supervisory liability claim against it in Count II.
Otherwise, Defendants’ motion will be denied by separate order.
DATED this 5th day of October, 2016.

BY THE COURT:

______________/s/____________________
James K. Bredar
United States District Judge

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