Montgomery v. Bishop et al

Filing 3

MEMORANDUM. Signed by Judge Ellen L. Hollander on 5/21/2015. (c/m 5/21/15)(kr, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID MICHAEL MONTGOMERY,
# 412-797, SID # 2405284

*
*
*
Plaintiff,
*
*
v
*
Civil Action No. ELH-15-1345
*
FRANK B BISHOP, JR.
*
TRANSPORTATION OFFICERS,
*
ANNE MADDOX, Hearing Officer for WCI, *
JANICE GILMORE, Medical Regional
*
Administrator
*
*
Defendants.
*
***
MEMORANDUM
On May 11, 2015, David Michael Montgomery, a self-represented inmate in the custody
of the Maryland Division of Correction, filed suit (ECF 1) and a motion to proceed in forma
pauperis (ECF 2), raising three unrelated allegations. The motion shall be granted, subject to 28
U.S.C. § 1915.
Plaintiff’s first allegation concerns his recent institutional rule violation hearing, held
after his transfer on April 21, 2015, from the Maryland Correctional Institutional- Jessup (“MCIJ”) to Western Correctional Institution (“WCI”). The second allegation concerns Montgomery’s
transport on April 21, 2015.

The third allegation concerns his medical care at WCI.

Montgomery states he has not sought to resolve these concerns through the institutional
Administrative Remedy Procedure request process “[b]ecause I didn’t think that I could without
it being dismissed. ECF 1 at 2.1

1

Additionally, Montgomery generally avers that he had “mail problems” and has not met
with a case manager at WCI. He does not identify suffering any injury as a result, nor does he
specify any details to support these assertions. Accordingly, these claims will be dismissed.

I.

Claims
Montgomery states he lost 120 days of good time credits and received 180 days of “lock-

up time”2 after his disciplinary hearing. He asserts that: 1) his rights under the Fourteenth
Amendment were violated when he was moved from JCI to WCI while he had a hearing pending
on the JCI rule violations; 2) the hearing was unfair and did not comport with due process; 3) he
was found guilty of the violation of institutional rules, contrary to regulations and the prisoner
handbook; and 4) the hearing examiner was biased. ECF 1 at 3-4. Montgomery states he
appealed the decision of the hearing examiner, Anne Maddox, to WCI Warden Bishop and has
yet to receive a response. Id. at 9.
Montgomery also asserts an Eighth Amendment claim. He contends that he had a liver
biopsy on April 17, 2015, and on April 21, 2015, officers from JCI picked him up at MCI-J for
transport to WCI. The transportation officers strip searched him and asked why he was wearing
a wrist band. Montgomery explained they were hospital bands. The transport officers required
him to rip three bands off his wrist, and then placed him in a three- piece restraint. Montgomery
alleges the restraint was too tight, and cut his right wrist. Montgomery alleges that the chain was
too tight on his left side, where his surgery had been performed. He also claims that he told the
officers the restraint was too tight and that he had undergone surgery, but transportation officers
“didn’t care.” Id. at 5. According to plaintiff, it takes up to two weeks to recover from the
surgery.3 He claims he asked to see the nurse and requested a band aid for the cut on his wrist, to
no avail. He appears to claim the conduct constituted cruel and unusual punishment. Id. at 6.
As relief, he requests $20,000. Id.
In addition, Montgomery faults Janice Gilmore, the Medical Regional Administrator at
2
3

Montgomery likely references disciplinary segregation housing placement.
Montgomery does not explain the basis of this belief.
2

WCI, for failing to provide him with his medications for one and a half to two days after his
arrival at WCI. Id. at 7. He does not specify the nature of the medication nor claim to have
suffered injury as a result of the delay. Plaintiff also complains that he has not seen “the mental
health person” who gives medications, despite his request. Id.
In addition, Montgomery complains that he was not provided a bottom bunk although he
has paperwork showing he was ordered lower bunk placement in the past. ECF 1 at 7. A nurse
allegedly told plaintiff that she was not going to update his paperwork for bottom bunk
assignment. Id.
Montgomery also complains that he had to submit two sick call slips until he was seen by
a medical provider. Further, he states he was offered treatment for his liver, but asked to “hold
off” treatment because he wants to move closer to his family. He asserts that when a doctor
updates medication at WCI, they take “forever.” Id. at 8. According to Montgomery, he
received better medical treatment at JCI and the medical care at WCI “could be much better.”
Id.
II.

Discussion
Montgomery filed his complaint under 42 U.S.C. § 1983. Under 28 U.S.C. §§ 1915,

1915A, an indigent litigant may commence an action in federal court without prepaying the
filing fee. To protect against possible abuses of this privilege, the statute requires a court to
dismiss any claim that “fails to state a claim on which relief may be granted.” 28 U.S.C. §§
1915(e)(2)(B)(ii); 1915A(b)(1).
This court is mindful of its obligation to construe liberally the pleadings of a selfrepresented litigant such as Montgomery. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
evaluating a pro se complaint, a plaintiff's allegations are assumed to be true. Id. at 93 (citing

3

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). A complainant who submits an
inartfully pled action that contains a potentially cognizable claim should be given the opportunity
to particularize his complaint in order to define his issues. See Johnson v. Silvers, 742 F.2d 823,
825 (4th Cir. 1984). Nonetheless, liberal construction does not mean that a court can ignore a
clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district
court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (stating a district court may not “conjure up
questions never squarely presented”).

Each of Montgomery’s claims shall be analyzed

accordingly.
Montgomery’s Eighth Amendment claims against the unidentified transportation officers
are that they told him to remove his hospital identification bands before they placed him in a
three piece restraint, the restraint was too tight, and they did not give him a band aid for the cut
he claims was caused by the restraints. Montgomery avers that he informed the transportation
officers that the restraints were too tight and he had just had surgery.

Montgomery also

complains the restraints bothered the side where the biopsy had been performed. He does not
allege the cut bled, the site became infected, or that he sought or needed additional treatment for
it. To the extent Montgomery faults the transportation officers for applying the restraints too
tightly, he does not claim the restraints were applied or maintained with malicious or sadistic
intent.
The Eighth Amendment does not prohibit all applications of force or infliction of pain
against prisoners. United States v. Gore, 592 F.3d 489, 494 (4th Cir. 2010). “[O]nly the
unnecessary and wanton infliction of pain” rises to the level of a constitutional violation. Whitley
v. Albers, 475 U.S. 312, 319 (1986). Montgomery does not claim to have possessed or shown

4

the officers any documentation requiring special cuffing procedures.

The officers’ alleged

actions and failure to take Montgomery to a nurse or to provide Montgomery with a band aid for
his wrist, as presented here, simply fail to state a claim of constitutional import. Consequently,
this claim will be dismissed.
In order to state claim of constitutionally inadequate medical care under the Eighth
Amendment, an inmate 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). Montgomery does not claim defendant Janice Gilmore, Medical Regional
Director, acted with deliberate indifference to his serious medical needs. In fact, Montgomery
raises no allegation that Gilmore was personally involved in providing his medical care, knew of
or was responsible for any delay in providing his medication or prescriptions, or is responsible
for oversight of health providers, including mental health providers, who work at WCI. In
particular, Montgomery faults an unnamed nurse, not Gilmore, for allegedly refusing to update
his order for bottom cell placement.
Mere negligence or malpractice is not enough to constitute an Eighth Amendment
violation. Estelle v Gamble, 429 U.S. 97, 106 (1976); see also Daniels v. Williams, 474 U.S. 327,
328 (1986); Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990). “Deliberate indifference may be
demonstrated by either actual intent or reckless disregard.” Miltier, 896 F.2d at 851. A prisoner's
disagreement with medical personnel over the course of his treatment does not make out a cause
of action. Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985); Russell v. Sheffer, 528 F.2d 318,
319 (4th Cir.1975) (per curiam).
Inmates are not entitled to the best medical care or the particular medical care of the
inmate's choosing. Estelle, 429 U.S. at 104–05. Thus, even assuming the truth of Montgomery’s

5

allegations concerning delays in providing him with his medicine, his claims are insufficient to
state an Eighth Amendment claim of inadequate medical care.

CONCLUSION
Montgomery’s claims against the unnamed transportation officers and Janice Gilmore,
the Regional Medical Director, will be dismissed for failure to state a cognizable federal claim.4
Montgomery’s claims concerning his disciplinary rule hearing will proceed for service on
defendants Bishop and Maddox. A separate Order follows.

____________/s/___________________
Ellen L. Hollander
United States District Judge

May 21, 2015____
Date

4

Under 28 U.S.C. § 1915(g) a prisoner litigant will not be granted in forma pauperis
status if he has “on 3 or more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was dismissed on the grounds that
it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.” Montgomery is cautioned that
future complaints dismissed under this standard will be awarded a strike pursuant to statute.
6