Estate of Fatima Neal et al v. State of Maryland et al
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 5/8/2017. (krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SHARON BOST, individually and as personal
representative of the ESTATE OF FATIMA
Civil Action No. ELH-15-3278
WEXFORD HEALTH SOURCES, INC., et al.
This action arises from the unfortunate death of Fatima Neal (“Neal” or “Decedent”) in
2012, who suffered a stroke while she was detained at the Baltimore City Detention Center
In the First Amended Complaint (ECF 56) (“Amended Complaint”), plaintiff Sharon
Bost, individually as Neal’s mother and as the personal representative of the Estate of Fatima
Neal, filed suit against a host of defendants: Wexford Health Sources, Inc. (“Wexford”); the
State of Maryland (“State”); BCDC; medical staff employed by Wexford, including Anike Ajayi,
R.N.; Elizabeth Obadina, R.N.; Ebre Ohaneje, R.N.; Najma Jamal, R.N.; Karen McNulty, R.N.;
Andrea Wiggins, P.A.; Getachew Afre, M.D.; Jocelyn El-Sayed, M.D.; Obby Atta, C.R.N.P.;
twenty-five unnamed medical service providers; various BCDC employees, including Shavella
Miles, Carol McKnight, Valerie Alves, Cierra Ladson, Gwendolyn Oliver, Carolyn Atkins,
Rickey Foxwell, Carol Harmon, and twenty-five unnamed “custody officers” at BCDC. Id.
The Amended Complaint does not reveal Neal’s age at the time of death, her medical
history, how long she had been at BCDC, or whether she was a pretrial detainee or was, instead,
serving a sentence. See ECF 56.
¶¶ 40-48. 2 I shall refer collectively to the individual health care providers as the “Medical
And, I shall refer to the BCDC employees collectively as the “Custody
In the Amended Complaint, Bost asserted several claims for relief. The “First Claim for
Relief,” lodged against all defendants, is brought under 42 U.S.C. § 1983 for the denial of
medical care, in violation of the Eighth and Fourteenth Amendments. ECF 56, ¶¶ 153-68. The
Second Claim for Relief is brought only against Wexford under 42 U.S.C. § 1983, alleging an
unconstitutional policy and practice of denial of medical care (the “Monell Claim”). Id. ¶¶ 16986. 3 The Third Claim for Relief, against all defendants, alleged a claim under Article 24 of the
Maryland Declaration of Rights. Id. ¶¶ 187-206. Further, in her fourth claim, Bost alleged a
claim against Wexford and the Medical Defendants for medical malpractice. Id. ¶¶ 207-17. The
fifth claim asserted negligence against the State, BCDC, and the Custody Defendants. Id. ¶¶
218-25. In addition, as to all defendants, Bost asserted a sixth claim for intentional infliction of
emotional distress (id. ¶¶ 226-37) and a seventh claim for wrongful death. Id. ¶¶ 238-43.
Wexford and the Medical Defendants have filed a joint Motion to Bifurcate and Stay
Discovery as to the Monell Claim. ECF 130. The motion is supported by a memorandum of law
(ECF 130-1, collectively, “Medical Defendants’ Motion”) and seven exhibits.
through ECF 130-9. Bost opposes the Motion (ECF 134, “Opposition”), and Wexford and the
Medical Defendants have replied. ECF 149 (“Reply”).
There are discrepancies in the ways that plaintiff and defendants spell the defendants’
names, as well as internal discrepancies in defendants’ submissions. For example, Foxwell
spells the first name as “Ricky.” See, e.g., ECF 90; ECF 135. And, Wiggins spells her first name
as “Andria.” See, .e.g., ECF 49; ECF 130-6.
See Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978).
Also pending is the Motion to Bifurcate and Stay Discovery as to the Monell Claim, filed
by the Custody Defendants. ECF 135 (“Custody Defendants’ Motion”). Bost opposes the
Custody Defendants’ Motion (ECF 147) and the Custody Defendants have replied. ECF 153.
Both motions are fully briefed and no hearing is necessary to resolve them. See Local
Rule 105.6. For the reasons that follow, I shall grant the motions. 4
Factual Background 5
At the relevant time, Neal was “a detainee at BCDC . . . .” ECF 56, ¶ 20. She was
scheduled to be released on November 5, 2012. Id. ¶ 9. 6
On the morning of October 30, 2012, Neal awoke with “an excruciatingly painful
headache and blurred vision.” Id. ¶ 51. She reported to her “bunkmates” later that day that her
headache was getting worse and that it was becoming difficult for her to see or to concentrate.
Id. ¶ 52. “She stayed in bed all day . . . .” Id. ¶ 51. Bost alleges, on information and belief, that
Neal’s headache, loss of vision, and other symptoms were the result of a stroke. Id. ¶ 53.
Several discovery motions are also pending before Magistrate Judge David Copperthite.
See ECF 128; ECF 131; ECF 136; ECF 150; ECF 152; ECF 154. This Memorandum Opinion
does not resolve the discovery disputes.
Given the procedural posture of the case, I shall assume the truth of the facts alleged in
the Amended Complaint.
Ordinarily, in the context of prison litigation, “detainee” refers to an individual awaiting
trial, rather than one who is serving a sentence. Here, plaintiff states that Neal was a detainee,
but the reference to the release date suggests she was serving a sentence.
The distinction is not immaterial. In a claim of deprivation of constitutional rights, the
inmate’s status, either as a pretrial detainee or as a person serving a sentence, affects the
applicability of particular constitutional amendments. See, e.g., Martin v. Gentile, 849 F.2d 863,
870 (4th Cir. 1988).
On October 31, 2012, Neal continued to complain to custody officers and other detainees
of disorientation and a headache. Id. ¶ 54. However, the BCDC employees “did not alert any
medical personnel . . . .” Id.
In the early morning hours of November 1, 2012, Neal’s bunkmate “awoke to find Neal
stumbling around the room . . . .” Id. ¶ 55. At that time, Neal complained that her headache had
worsened and that “she could not see at all.” Id. Neal asked her bunkmate to call for help. Id.
¶ 56. Before help arrived, Neal collapsed and broke into a cold sweat. Id. ¶ 57. “Nurse Rachel”
arrived and saw Neal “sprawled out on the floor . . . .” Id. ¶ 59. Neal’s bunkmate informed
Nurse Rachel that Neal had spent most of the prior 24 hours in bed due to a severe headache. Id.
¶ 58. The nurse pulled Neal up and walked her to the infirmary, but did not call for other
medical assistance. Id. ¶ 60; see also id. ¶ 61.
Several medical staff members saw Neal in the infirmary during the morning of
November 1, 2012. Id. ¶¶ 63-78. Nurse Ajayi, who first saw Neal, recorded that Neal was
“‘ambulatory but weak.’” Id. ¶ 64. She also noted that Neal had a “‘pounding’” headache and
“felt ‘cold.’” However, Ajayi did not contact an emergency medical provider. Id. ¶ 65.
Neal was then seen by Nurse Obadina, who recorded that Neal had “‘walked to the
infirmary’” and that she was “‘a bit weak.’” Id. ¶¶ 67-69. Obadina also recorded that Neal
“refused to have her vital signs read.” Id. ¶ 69. But, plaintiff asserts, on information and belief,
that Neal had not refused to have her vital signs read. Id. ¶ 70. Rather, Obadina “simply did not
take them.” Id.
Neal was then seen by Physician’s Assistant Wiggins. Id. ¶ 72. However, Wiggins “took
no action to contact emergency medical services . . . .” Id.
At approximately 9:53 a.m. on November 1, 2012, Neal was seen by Dr. Afre, who
prescribed Acetaminophen. 7 Id. ¶ 76. Neal remained in the infirmary on November 1, 2012,
complaining of a severe headache. Id. ¶ 80. But, according to Bost, Neal’s condition went
Id. ¶¶ 76, 78.
Neal’s bunkmate in the infirmary twice inquired about Neal’s
condition, but her inquiries were “ignored.” Id.
The Amended Complaint asserts, on information and belief, that Neal suffered a second
stroke between the night of November 1, 2012 and the morning of November 2, 2012. Id. ¶ 81.
Nurse Ohaneje saw Neal in the early morning of November 2, 2012, and recorded that Neal’s
condition was “‘stable.’” Id. ¶ 82. That observation was allegedly false. Id. ¶ 83.
Nurse Obadina also visited Neal in the early morning of November 2, 2012. Id. ¶ 85.
She recorded that Neal had “‘no complaints.’” Id. That assertion was also allegedly false. Id.
By the morning of November 2, 2012, “medical personnel, custody officers and detainees
in the BCDC infirmary began noticing that Fatima’s entire right side of her body began to slump
and that she was dragging her right leg while walking.” Id. ¶ 88. Fellow inmates expressed
concern about Neal but were told that “‘nothing was wrong’” with her. Id. ¶ 89. And, despite
requests from inmates, Obadina and Ohaneje refused to check Neal’s vital signs. Id. ¶ 90.
Dr. Afre “visited” Neal on the morning of November 2, 2012, and recorded that she still
complained of a severe headache. Id. ¶ 92. Dr. Afre prescribed Tylenol with codeine. Id. Neal
spent the rest of the day in bed. Id. ¶ 95.
Plaintiff erroneously asserts that Acetaminophen is commonly known as Motrin. ECF
56, ¶ 76. However, the active drug in Motrin is Ibuprofen. Acetaminophen is an analgesic
commonly sold under the brand name of Tylenol.
Nurse Jamal visited Neal during the evening of November 2, 2012, and recorded that
Neal was in “‘stable’ condition.” Id. ¶ 96. Nurse Jamal made a second visit in the early morning
hours of November 3, 2012, and recorded that there was no change in Neal’s condition. Id. ¶ 98.
Around that time, Neal’s bunkmates “began to notice that her ribs were protruding from her
chest.” Id. ¶ 101. Neal’s bunkmates were “particularly troubled by the fact that Fatima had
stopped responding to their questions.” Id.
During the morning of November 3, 2012, Dr. El-Sayed “visited” Neal and gave her a
dose of Tylenol with codeine. Id. ¶ 103. Dr. El-Sayed “took no other actions to provide Fatima
relief from her intense pain.” Id. In the eight hours following Dr. El-Sayed’s visit, Neal
received no additional medical attention. Id. ¶ 110.
Neal experienced severe pain in her head, lapsed in and out of consciousness, was unable
to walk, had involuntary bowel movements, “and was left to lay in her own feces.” Id. ¶ 104.
According to plaintiff, Neal was experiencing “multiple intra-cerebral hemorrhages . . . .” Id.
One of Neal’s bunkmates sat with her for four hours on November 3. Id. ¶ 106. Neal
continued to complain of a severe headache and was unable to move. Id. That bunkmate
“attempted to convince medical staff on duty that Fatima needed immediate and emergency
medical attention.” Id. A nurse told the fellow inmate that Neal “was fine, and that she just
needed to eat.” Id. ¶107.
Notably, one of Neal’s bunkmates “[s]pecifically informed [a] particular nurse that she
believed Fatima was having a stroke.” Id. ¶ 108. Neal “told [a] bunkmate that she was going to
die if she did not receive medical treatment.” Id. ¶ 109. During this time, Neal “lay in her bed in
a near vegetative state, was unable to speak clearly, began making incoherent and delusional
statements and her skin began to feel cold and clammy.” Id. ¶ 111.
During the afternoon of November 3, 2012, Nurse McNulty checked Neal and recorded
that there was “‘no distress present,’” yet Neal was “‘visually impaired,’” “‘had trouble
ambulating,’” and complained of a headache with “a degree of pain” registering ten out of ten.
Id. ¶¶ 112-113. McNulty also recorded that Neal had a “‘decreased appetite,’ and experienced
‘lethargy’ and ‘weakness.’” Id. ¶ 114. However, McNulty did not alert a physician. Id. ¶ 115.
Neal was next visited by Nurse Jamal during the evening of November 3, 2012. Id.
Nurse Jamal provided Neal with Tylenol with codeine and recorded that Neal
“experienced ‘no vision changes or headaches.’” Id. ¶¶ 120-21. Neal continued to complain of
severe and intense pain. Id. ¶ 123.
At 2:25 a.m. on November 4, 2012, Neal “violently awoke and began involuntarily
foaming at the mouth.” Id. ¶ 125. At this time, Neal was completely non-responsive. Id. ¶ 126.
Detainees in the infirmary attempted to alert medical staff, but the nurse on duty, Nurse Obadina,
“was sleeping and could not be woken up . . . .” Id. ¶ 127. The detainees were able to get the
attention of Officer Ladson, and informed him that Neal was foaming at the mouth and
struggling to breathe. Id. ¶ 128.
Officer Ladson contacted Nurse Obadina, who began assessing Neal at approximately
3:30 a.m, more than one hour after Neal first began foaming at the mouth. Id. ¶ 129. As a result
of Nurse Obadina’s assessment, “a triage nurse was rushed to Fatima’s bedside.” Id. ¶ 130. But,
there was no doctor available to respond. Id. ¶ 131.
The triage nurse attached an oxygen mask to Neal’s mouth and attempted to suction the
foam out of Neal’s mouth. Id. ¶ 133. Wexford records indicate that, at that time, Neal had no
pulse. Id. ¶ 134. Medical staff then called emergency services, reporting to the 9-1-1 dispatcher
that Neal was unresponsive. Id. ¶¶ 135, 136.
At approximately 3:45 a.m., the medical staff on duty began to perform CPR and gave an
order for Neal to be transported to the Johns Hopkins Hospital (“Hospital” or “Johns Hopkins”).
Id. ¶ 137-138. Neal was transported to the Hospital at approximately 4:25 a.m, two hours after
the report that she was foaming at the mouth. Id. ¶ 139.
Neal arrived at the Hospital at 4:31 a.m. on November 4, 2012. Id. ¶ 143. Although Neal
had “displayed clear symptoms of a stroke” for several days (id. ¶ 141), the BCDC medical staff
on duty reported that Neal was suffering from “‘cardiopulmonary arrest/arrhythmia.’” Id. ¶ 140.
Seven minutes later, Neal was pronounced dead by Dr. Latoya Hendricks of Johns Hopkins. Id.
Plaintiff asserts in the Amended Complaint, on information and belief, that Neal had died at
BCDC. Id. ¶ 144. Neal was scheduled to be released from BCDC the next day. Id. ¶ 9.
On November 4, 2012, Dr. Theodore King, Jr. of Johns Hopkins conducted an autopsy on
Neal. Id. ¶ 147. Dr. King concluded that Neal had died as a result of an “intracerebral
hemorrhage,” i.e., a stroke, and its accompanying complications. Id.
As indicated, Sharon Bost, individually and as the personal representative of the Estate of
Fatima Neal, filed suit on October 27, 2015. ECF 1. On December 21, 2015, BCDC, Wexford,
the State, and several of the Custody Defendants moved to dismiss and/or for summary
judgment. ECF 16. 8 Based on his availability, Judge J. Frederick Motz considered the motion.
By Memorandum (ECF 28) and Order (ECF 29) of March 8, 2016, he granted the motion, in
part, dismissing the claims against the State and the Custody Defendants, in their official
capacities. ECF 29. Moreover, Judge Motz dismissed the negligence claims against the Custody
Defendants in their individual capacities. Id.
The Custody Defendants who joined ECF 16 were Oliver, Miles, Alves, and McKnight.
Bost filed an Amended Complaint on May 26, 2016. ECF 56. Wexford and the Medical
Defendants answered the Amended Complaint on June 6, 2016. ECF 59. However, the State,
BCDC, and several of the Custody Defendants filed a second motion to dismiss and/or for
summary judgment on June 6, 2016. ECF 57. 9 Atkins filed her own motion to dismiss and/or
for summary judgment on July 11, 2016. ECF 74.
Again, due to Judge Motz’s availability, he resolved the motions. On August 31, 2016,
he granted ECF 57 and ECF 74 in part, dismissing the claims against the State, BCDC, and the
Custody Defendants in their official capacities, based on Eleventh Amendment immunity. ECF
89. Judge Motz also dismissed Bost’s claims for negligence against the Custody Defendants in
their individual capacities. Id. The individual Custody Defendants answered the Amended
Complaint on September 5, 2016. ECF 90.
The Court issued a Scheduling Order on April 19, 2016, while the first motion to dismiss
and/or for summary judgment was pending. ECF 44. The Scheduling Order set June 30, 2017,
as the deadline for discovery. Id. at 2. During discovery, Magistrate Judge Beth Gesner resolved
some discovery disputes. See ECF 106; ECF 108; see also ECF 87 (referral). Other discovery
disputes are now pending before Magistrate Judge Copperthite. See docket.
In her Amended Complaint, Bost articulates several policies and practices of Wexford
that, in her view, amount to constitutional violations that led to Neal’s death. They include, in
1) “Wexford employees are informally instructed to deliberately ignore
detainees’ medical complaints, and to act as though detainees are only
The Custody Defendants who joined ECF 57 were Oliver, Foxwell, Harmon, Miles,
Alves, and McKnight.
‘faking’ their injuries. This practice is particularly pronounced when a
detainee’s release date is scheduled for the near future.” ECF 56, ¶ 172.
2) “Wexford medical staff working in BCDC are trained to ignore or underreport symptoms of stroke and similar emergencies, amounting to deliberate
indifference to the serious medical needs of detainees presenting symptoms of
a stroke, including Ms. Neal.” Id. ¶ 173.
3) “Wexford supervises its employees to ignore or under-report symptoms of
stroke and similar emergencies, amounting to deliberate indifference to the
serious medical needs of detainees presenting symptoms of a stroke, including
Ms. Neal.” Id. ¶ 174.
4) “Wexford ratifies the conduct of its employees who ignore or under-report
symptoms of a stroke and similar medical emergencies through review and
approval of these employees’ performance, and through the decision to
continue the employment of individuals who ignore and under-report medical
emergencies of BCDC detainees, amounting to deliberate indifference to the
serious medical needs of detainees presenting symptoms of a stroke, including
Ms. Neal.” Id. ¶ 175.
5) “Specifically, there existed at BCDC a widespread practice under which
employees and agents of Wexford and the BCDC and/or Maryland, including
correctional officers and medical personnel, commonly failed or refused to:
(1) properly examine detainees with serious medical conditions; (2) provide
proper medications to detainees with serious medical conditions; (3) respond
to detainees who request medical attention or medical attention; (4)
communicate medical needs of detainees among correctional officers and
medical staff; (5) respond to detainees who exhibits obvious signs of medical
need or illness; or (6) refer detainees for outside medication attention.” Id.
In their motion, Wexford and the Medical Defendants raise two principal arguments in
support of bifurcation of the Monell Claim and a stay of discovery as to that claim. First, they
argue that bifurcation will promote judicial economy and conserve the parties’ resources. ECF
130-1 at 8-13. Wexford and the Medical Defendants also insist that bifurcation might enable the
parties to “avoid expending significant time and money on discovery and trial of the Monell
claim . . . .” Id. ¶ 8. They posit, id.: “Wexford can be found liable on Bost’s Monell claim only
if a jury finds that the individual Medical Defendants caused Decedent’s injury and death by
violating Decedent’s constitutional rights.”
Second, Wexford and the Medical Defendants maintain that bifurcation is necessary to
ensure that the Medical Defendants receive a fair trial. In their view, “if the Monell claim is tried
alongside Bost’s § 1983 claims against the individual Medical Defendants, evidence related to
policy, practice, and custom would be admitted on the Monell issues that would need to be
disregarded by the jury as to the individual claims.” Id. at 13. Wexford and the Medical
Defendants point out that, “in the absence of an explicit and facially unconstitutional policy
statement, proving a Monell claim generally requires a plaintiff to submit a large amount of
evidence in order to establish the defendant’s practices and customs,” including “evidence of
prior instances of unconstitutional conduct . . . .” Id. at 13-14. Further, they argue, id. at 15:
Presenting such evidence (e.g., bad acts of other providers, systemic
failure to train or investigate such conduct, etc.,) would only serve to inflame the
jury against the individual Medical Defendants. Even with the best limiting
instructions the Court could devise, the risk of confusing the jury and tainting its
verdict would remain too great.
The Custody Defendants advance arguments similar to those of Wexford and the Medical
Defendants. ECF 135. In particular, the Custody Defendants contend that failure to bifurcate
would result in needless expenditure of time and money for the Custody Defendants, “as they
and their counsel would not be excused from trial during presentation of the Monell Claim, even
though that theory of recovery is inapplicable to the State and its employees regardless of any act
of deliberate indifference.” ECF 135-1 at 5. Moreover, the Custody Defendants contend that
they would be prejudiced at trial by the introduction of the Monell evidence, because it would
require the jury to “make and retain a legal distinction between the Custody Defendants and the
[Department of Public Safety and Correctional Services’] contractor, Wexford, even though all
case defendants maintain a presence at the jail.” Id. at 7.
Although the Custody Defendants were not sued under Monell, they argue that they will
“be tainted by evidence of policies and practices” that pertain only to Wexford. Id. They add
that allowing Monell discovery to proceed along with fact discovery “will place a significantly
greater strain upon the Custody Defendants . . . .” Id. at 6.
On a variety of grounds, plaintiff opposes the motions to bifurcate and to stay discovery.
ECF 134; ECF 147. Bost asserts that a finding that the Medical Defendants violated Neal’s
constitutional rights is not a prerequisite to a finding of liability against Wexford under Monell.
ECF 134 at 5-8. She points out that various courts of appeals, including the Fourth Circuit, have
determined that “an entity defendant may be found liable for maintaining an unconstitutional
policy or practice even if none of the individual defendants in the case is found liable.” Id. at 5-6
(citing, inter alia, Int’l Ground Transp., Inc. v. Mayor and City Council of Ocean Cty., Md., 475
F.3d 214, 219 (4th Cir. 2007), and Santos v. Frederick City Bd. of Comms., 725 F.3d 451, 469-70
(4th Cir. 2013)). Although Bost concedes that courts in the Fourth Circuit often bifurcate Monell
claims, she argues that the specific facts and allegations here are distinguishable from those
cases. Id. at 8.
Moreover, Bost contends that bifurcation would “impose a great burden on the Court and
parties, increase the cost of litigation, and inconvenience the witnesses.” Id. In Bost’s view, the
only way that bifurcation would enhance judicial efficiency is if the Monell Claim need not be
litigated. Id. at 8-9. But, given the specific facts and allegations in this case, Bost posits that the
Monell Claim must be litigated regardless of the outcome of trial of the Medical Defendants. Id.
at 9. Furthermore, Bost points out that bifurcation of discovery would result in duplication of
effort because the same witnesses are pertinent to the claims against the individual defendants
and against Wexford. Id. at 10.
In addition, Bost argues that bifurcation would violate her right to trial by jury under the
Seventh Amendment, because two juries would consider the same factual issues. Id. at 13-15.
In particular, Bost contends that a jury considering the Monell issue would necessarily have to
make findings as to the Medical Defendants’ compliance with Wexford’s policies, an issue that
would also be considered by the first jury. Id. According to Bost, “it would be difficult, to say
the least, to draft a verdict form that captured the first jury’s findings on exactly how Ms. Neal’s
rights were violated.” Id.
Finally, as to the arguments in both motions that the Medical Defendants and the Custody
Defendants would be prejudiced by the simultaneous litigation of the Monell Claim, Bost posits
that the mere possibility of prejudice does not warrant bifurcation. Id. at 12. She asserts: “The
question whether discovery should be bifurcated should not turn on potential prejudice at an
ultimate trial.” Id.
In their Reply, Wexford and the Medical Defendants maintain that a finding of liability as
to the Medical Defendants would have to precede any finding of liability for Wexford under
Monell. ECF 149 at 2. Further, they assert that the cases cited by Bost are distinguishable,
particularly given that the Medical Defendants have not alleged qualified immunity as a defense;
plaintiff has not alleged understaffing as a policy that led to Neal’s death; and plaintiff has failed
to produce any evidence tending to show the existence of any unidentified Wexford staff who
came into contact with Neal at the relevant time. Id. at 6-7.
As to Bost’s argument that bifurcation would increase and multiply proceedings,
Wexford and the Medical Defendants contend that bifurcation would simply separate
proceedings and would “potentially eliminate expenditure of significant time and resources.” Id.
at 7-8. They argue: “The only persons who might need to be deposed twice are Wexford’s
30(b)(6) designees; however the subjects that would be covered at those separate depositions
would necessarily be different.” Id. at 8.
And, with respect to Bost’s Seventh Amendment argument, Wexford and the Medical
Defendants observe that bifurcation of Monell claims is routinely carried out by courts without
affecting plaintiffs’ rights under the Seventh Amendment. Id. at 12. They posit that, under their
bifurcation plan, if the first jury finds that some or all of the Medical Defendants violated Neal’s
constitutional rights, the second jury would be instructed not to review that issue. Id. at 12-13.
In their Reply, the Custody Defendants reassert many of the arguments made in their
motion and emphasize the arguments of the Medical Defendants. See ECF 153. They point out
that Bost failed to address the “legitimate fear” of the Custody Defendants that “they will be
tainted unfairly by evidence produced at a joint trial, but relevant solely to the Monell claim
against Wexford.” Id. at 3. The Custody Defendants also posit that Bost “has not identified any
legal mechanisms capable of protecting the Custody Defendants from such extensive and
prejudicial exposure, other than the superficial suggestion that ‘concerns about prejudice should
be dealt with at trial and not through bifurcation.’” Id. (quoting ECF 147 at 2).
Defendants seek to bifurcate Bost’s Monell Claim against Wexford, pursuant to Fed. R.
Civ. P. 42(b). Fed. R. Civ. P. 42(b) provides: “For convenience, to avoid prejudice, or to
expedite and economize, the court may order a separate trial of one or more separate issues,
claims, crossclaims, counterclaims, or third-party claims.” Notably, “[o]nly one of these criteria
need be met to justify bifurcation.” Saxion v. Titan-C-Mfg., Inc., 86 F.3d 553, 556 (6th Cir.
1996) (citations omitted).
Defendants also seek to stay discovery relating to the Monell Claim until after the
resolution of the § 1983 claim against the Medical Defendants. ECF 130; ECF 135. They rely
on Fed. R. Civ. P. 26(d), which provides, in pertinent part: “A party may not seek discovery from
any source before the parties have conferred as required by Rule 26(f), except in a proceeding
exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by
stipulation, or by court order.” (Emphasis added).
District courts have “broad discretion in deciding whether to bifurcate claims for trial,
and the exercise of that discretion will be set aside only if clearly abused.” Beasley v. Kelly,
DKC-10-0049, 2010 WL 3221848, at *3 (D. Md. Aug. 13, 2010) (citing Dixon v. CSX Transp.,
Inc., 990 F.2d 1440, 1443 (4th Cir. 1993), cert. denied, 510 U.S. 915 (1993)); see also Brown v.
Bailey, RDB-11-1901, 2012 WL 2188338, at *4 (D. Md. June 13, 2010) (same); Dawson v.
Prince George’s Cnty., 896 F. Supp. 537, 539 (D. Md. 1995) (same); 9A C. WRIGHT & A.
MILLER, FED. PRACTICE
PROCEDURE, § 2388 (“Wright & Miller”), at 113-14 (“It is well-
established by a wealth of case law that ultimately the question of whether to conduct separate
trials under Rule 42(b) should be, and is, a matter left to the sound discretion of the trial court on
the basis of the circumstances of the litigation before it.”).
Resolution of the bifurcation motions requires a brief review of 42 U.S.C. § 1983, on
which many of plaintiff’s claims are based. Section 1983 provides that a plaintiff may file suit
against any person who, acting under color of state law, “subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws” of the United States.
42 U.S.C. § 1983; see, e.g., Filarsky v. Delia, 566 U.S. 377 (2012). However, § 1983 “‘is not
itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights
Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979)). To state a claim under § 1983, “a plaintiff must aver
that a person acting under color of state law deprived him of a constitutional right or a right
conferred by a law of the United States.” Wahi v. Charleston Area Medical Ctr., Inc., 562 F.3d
599, 615 (4th Cir. 2009); see Filarsky, 566 U.S. at 392; Owens v. Baltimore City State's
Attorneys Office, 767 F.3d 379, 402 (4th Cir. 2014); Jenkins v. Medford, 119 F.3d 1156, 1159-60
(4th Cir. 1997).
In the seminal case of Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978),
the Supreme Court determined that local governmental bodies may be liable under § 1983 based
on the unconstitutional actions of individual defendants, but only if those defendants were
executing an official policy or custom of the local government that resulted in a violation of the
plaintiff’s rights. Id. at 690-91; see also Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004).
But, liability attaches “only where the municipality itself causes the constitutional violation at
issue.” City of Canton v. Harris, 489 U.S. 378, 384 (1989) (emphasis in original).
As the Monell Court said, 436 U.S. at 694, “when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury the government as an entity is responsible under
§ 1983.” Therefore, “Section 1983 plaintiffs seeking to impose liability on a municipality
must . . . adequately plead and prove the existence of an official policy or custom that is fairly
attributable to the municipality and that proximately caused the deprivation of their rights.”
Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994); see also Board of Cnty. Comm’rs
of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997); Kirby v. City of Elizabeth City, 388 F.3d
440, 451 (4th Cir. 2004), cert. denied, 547 U.S. 1187 (2006); Young v. City of Mount Ranier, 238
F.3d 567, 579 (4th Cir. 2001).
Of import here, Monell liability has been extended to private entities operating under
color of state law, including private prison health care providers. See, e.g., West v. Atkins, 487
U.S. 42, 49 (1988); Polk Cty. v. Dodson, 454 U.S. 312, 320 (1981); Rodriguez v. Smithfield
Packing Co., Inc., 338 F.3d 348, 355 (4th Cir. 2003); Austin v. Paramount Parks, Inc., 195 F.3d
715, 728 (4th Cir. 1999); Shields v. Prince George's Cty., No. GJH-15-1736, 2016 WL 4581327,
at *7 (D. Md. Sept. 1, 2016). Standards applicable to municipalities are also applicable to
private corporations acting under color of state law. See Rodriguez, 338 F.3d at 355 (observing
that principles of § 1983 municipal liability “‘apply equally to a private corporation’” acting
under color of state law) (citation omitted).
Bifurcation is particularly common in § 1983 cases in which claims are asserted against
individual defendants and their municipal employers.
Courts have consistently found that
“bifurcation of . . . Monell supervisory claims from the individual claims is appropriate and often
Brown, RDB-11-1901, 2012 WL 2188338, at *4; see also, e.g., Humbert v.
O’Malley, WDQ-11-0440, 2012 WL 1066478, at *2 (D. Md. Mar. 27, 2012); James v. Frederick
Cnty. Pub. Schs., 441 F. Supp. 2d 755, 762 (D. Md. 2006); Robertson v. Prince George’s Cnty.,
215 F. Supp. 2d 664, 665 (D. Md. 2002); Dawson, 896 F. Supp. at 540. In the ordinary course,
before determining whether a plaintiff has established a claim for municipal liability under
Monell, the Court must first “determine whether the complaint states a claim for a predicate
constitutional violation.” Baker v. Dist. of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003).
Notably, a “Court may not impose vicarious liability under a § 1983 action.” Dawson,
896 F. Supp. at 540. Therefore, in most cases, a plaintiff’s § 1983 claims against a municipality
or a supervisor “hinge on his ability to show that [individual defendants] violated his
constitutional rights.” Id.; see also Young, 238 F.3d at 579 (recognizing that a municipality can
only be liable under § 1983 if the plaintiff establishes that a municipal employee violated his
constitutional rights); Temkin v. Frederick Cnty. Comm’rs, 945 F.2d 716, 724 (4th Cir. 1991)
(“A claim of inadequate training under section 1983 cannot be made out against a supervisory
authority absent a finding of a constitutional violation on the part of the person being
supervised.”), cert. denied, 502 U.S. 1095 (1992); Burgess v. Balt. Police Dep’t, RDB-15-0834,
2016 WL 1159200, at *1 (D. Md. Mar. 23, 2016) (“Under 42 U.S.C. § 1983, a municipality or
employer cannot be held vicariously liable based solely on an agency relationship.”); Williamson
v. Prince George’s Cnty., DKC-10-1100, 2011 WL 1065780, at *2 (D. Md. Mar. 21, 2011) (“A
municipality can only be held liable under § 1983 if the plaintiff first establishes that some
county employee violated his constitutional rights.”); Marryshow v. Town of Bladensburg, 139
F.R.D. 318, 319 (D. Md. 1991) (“Under Section 1983, to hold the [supervisor and municipal]
Defendants liable, Plaintiff must first establish that at least one [individual] Defendant violated
his constitutional rights.”).
Thus, Monell claims “are good candidates for bifurcation because when no governmental
employees are found liable, no subsequent trial of the municipality is necessary.” Beasley,
DKC-10-0049, 2010 WL 3221848, at *3. Put another way, “[b]ecause of the secondary nature
of a municipality on potential liability under § 1983, courts have frequently bifurcated discovery
and or trial so that cases proceed first with a trial against the individual defendant(s) alleged to be
primarily liable.” Taylor v. Maryland, DKC-10-2167, 2010 WL 5247903, at *2 (D. Md. Dec.
16, 2010); see Burgess, RDB-15-0834, 2016 WL 1159200, at *1 (finding bifurcation appropriate
“[g]iven the derivative nature of [the Baltimore Police Department’s] potential liability”).
Notably, “[n]ot only does bifurcation in such situations streamline the issues for trial, it prevents
prejudice to the individual defendants that would otherwise arise from the introduction of
evidence of prior incidents of police brutality in order to make a case against the municipality.”
Taylor, DKC-10-2167, 2010 WL 5247903, at *2.
To be sure, “Monell . . . and its progeny do not require that a jury must first find an
individual defendant liable before imposing liability on [a] local government.” Anderson v. City
of Atlanta, 778 F.2d 678, 686 (11th Cir. 1985).
There are some narrow circumstances in which
“a finding of no liability on the part of the individual municipal actors can co-exist with a finding
of liability on the part of the municipality.”
Int’l Ground Transp., Inc., 475 F.3d at 219; see
also, e.g., Thomas v. Cook Cnty. Sheriff’s Dept., 604 F.3d 293, 305 (7th Cir. 2010). But, in such
cases, municipal liability under Monell is limited to situations in which “such a finding would
not create an inconsistent verdict” as to the individual defendants. Thomas, 604 F.3d at 305
(emphasis in Thomas).
For example, in Thomas, the Seventh Circuit determined that a municipality could be
held liable under Monell for a prisoner’s death even though none of the private prison health care
employees were found to have violated the decedent’s constitutional rights. The Thomas Court
noted that a critical fact supporting the jury’s finding of Monell liability was that the individual
defendants were physically unable to access prisoners’ medical requests as a result of the
county’s policy. Thus, the Court concluded that liability on the part of the county was not
inconsistent with the jury’s finding in favor of the individual defendants. Id.
Moreover, “the combined acts or omissions of several employees acting under a
governmental policy or custom may violate an individual’s constitutional rights,” even if the
conduct of “no one employee may violate” those rights. Garcia v. Salt Lake Cnty., 768 F.2d
303, 310 (10th Cir. 1985); see Speer v. City of Wynne, Arkansas, 276 F.3d 980, 986 (8th Cir.
2002) (“[S]ituations may arise where the combined actions of multiple officials or employees
may give rise to a constitutional violation, supporting municipal liability, but where no one
individual's actions are sufficient to establish personal liability for the violation.”). But, these
situations most often arise in cases where a plaintiff alleges understaffing by the municipality.
Notably, no such allegation is made here.
In Garcia, 768 F.2d 303, plaintiffs brought suit against Salt Lake County and its officers,
asserting claims under § 1983 following the death of a prisoner. Id. at 305-06. Plaintiffs
asserted that the County was liable under Monell because that there was no physician present at
the jail most of the time, including when the decedent had stopped breathing. Id. at 308. At trial,
although the jury found none of the individual officers responsible under § 1983, the jury
concluded that Salt Lake County was liable under Monell. Id. at 306. The County appealed,
claiming that a municipality can only be liable under § 1983 if individual officers are found to
have violated the decedent’s civil rights. Id. The Tenth Circuit agreed with the plaintiffs,
concluding that a finding of liability against the County was not inconsistent with the finding that
the individual officers were not liable. Id. at 308.
Similarly, in Anderson, 778 F.2d 678, plaintiffs brought suit, inter alia, against, the City
of Atlanta and individual police officers who were working at the city’s Pre-Trial Detention
Center as a result of the death of a detainee. Id. at 680. The jury found none of the individual
officers liable under § 1983, but determined that the city was liable because of understaffing. Id.
at 686. The district court then granted defendants’ motion for judgment notwithstanding the
verdict, on the ground that the city could not be liable under Monell if the individual officers
were found not to have violated the decedent’s constitutional rights. Id.
In reversing the District Court, the Eleventh Circuit stated: “[I]f the jury were to find, as
it did, that the deprivation of [the decedent’s] constitutional rights was a result of understaffing,
then it would logically find no fault on the part of the individual arresting officers.”
Nevertheless, the court reasoned, id.: “The jury could reasonably find that a policy of
understaffing resulted in the unavailability of medical personnel and prevented individual
officers from being able to do their tasks properly. . . . We see no inconsistency in the jury
verdict holding the City liable and the individual officers not liable.”
Courts have also determined that municipal liability under Monell is appropriate in the
absence of liability for individual officers where “the injuries complained of are not solely
attributable to the actions of named individual defendants.” Barrett v. Orange Cnty. Human
Rights Comm’n, 194 F.3d 341, 350 (2d Cir. 1999). Such a theory is appropriate, for example,
where there are unknown defendants. Moreover, courts have determined that municipal liability
is appropriate in the absence of a finding of individual officer liability under § 1983 where the
individual officers are entitled to qualified immunity. Int’l Ground Transp., Inc., 475 F.3d at
219; accord Awalt v. Marketti, No. 11 C 6142, 2012 WL 1161500, at *12 (N.D. Ill. Apr. 9,
Here, the defense of qualified immunity has not been asserted by the Medical
In light of the foregoing, I agree with plaintiff that, even if a jury were to exonerate the
individual Medical Defendants, she would be entitled to proceed on her Monell Claim. In other
words, resolution of the § 1983 claims in favor of the individual Medical Defendants would not
necessarily dispose of the Monell Claim.
However, this conclusion does not resolve the
In my view, bifurcation is appropriate because it will promote judicial economy, conserve
the parties’ resources, prevent prejudice to the individual defendants, and will not prejudice the
As indicated, I have recognized that this is not a case in which plaintiff must succeed in
her § 1983 claims against the individual Medical Defendants in order to pursue her Monell Claim
again Wexford. But, based on the allegations, the claims go hand in hand. This is because the
allegations advanced by Bost as to the unconstitutional policies and practices of Wexford
correspond to the alleged inadequate medical care provided by the individual Medical
Defendants. Put another way, the alleged policies of Wexford and the inadequate medical care
allegedly provided by the Medical Defendants are two sides of the same coin.
To illustrate, plaintiff alleges: “Wexford employees are informally instructed to
deliberately ignore medical complaints . . . .” ECF 56, ¶ 172. Bost also alleges: “Wexford
medical staff working in BCDC are trained to ignore or under-report symptoms of stroke and
similar emergencies, amounting to deliberate indifference to the serious medical needs of
detainees presenting symptoms of a stroke . . . .” Id. ¶ 173. Each of these assertions corresponds
to the alleged conduct of the individual Medical Defendants. For example, plaintiff contends
that the individual defendants blatantly ignored the Decedent’s symptoms.
On the other hand, Bost has not alleged that Wexford had policies of inadequate staffing
at the relevant time. See, e.g., Thomas, 604 F.3d at 305; cf. Anderson, 778 F.2d at 686; Garcia,
769 F.2d at 308. Moreover, the individual Medical Defendants have not asserted qualified
immunity. See ECF 149 at 2 n. 1; ECF 59 (answer of Wexford and Medical Defendants); cf Int’l
Ground Transp., Inc., 475 F.3d at 219. And, Bost has not identified “any acts or omissions that
allegedly violated Decedent’s constitutional rights, other than those committed by the Individual
Medical Defendants.” ECF 149 at 7; cf. Thomas, 604 F.3d at 305 (stating that the municipality
could be liable under Monell without a finding of liability on the part of individual defendants if
“the plaintiff here had only sued the County, or didn’t know, because of some breakdown in
recording shifts, who the [medical staff] on duty were”). Moreover, Bost does not argue that
Wexford’s records are inadequate, such that she cannot identify the employees who came into
contact with Neal during the relevant period.
Therefore, as a practical matter, it would save time and resources, and promote judicial
economy, to defer consideration of the Monell Claim until after a determination of the liability of
the Medical Defendants. If the claims are bifurcated, Bost may ultimately choose not to proceed
with the Monell Claim if she does not succeed on the individual claims. Conversely, if she does
succeed in the claims against the individual Medical Defendants, Wexford might consider a
resolution of the Monell Claim, without the need for a trial. Either way, it would spare the Court
and the parties of the burdens and challenges of litigating the Monell Claim, which might well
involve admission of complicated medical evidence involving unrelated matters, as discussed
To establish a Monell Claim against Wexford, Bost will undoubtedly seek to rely on
previous incidents where Wexford employees allegedly ignored patients’ known medical needs.
As Wexford and the Medical Defendants point out in their Reply, Bost included in her Rule
30(b)(6) deposition notice that she seeks information regarding “all audits related to Wexford’s
provision of medical care at Maryland correctional facilities between 2007 and 2013 and of all
instances nationwide between 2007 and 2012 in which prisoners suffered deaths not resulting
from suicide or brain damage.” ECF 149 at 11. 10 As other courts have found, “conflicts are
obvious” in this scenario. See Dawson, 896 F. Supp. at 540.
Notably, evidence of any prior failures of Wexford to provide adequate care to inmates in
unrelated situations may be admissible against Wexford in regard to the Monell Claim. But,
such evidence is not likely to be admissible against the individual Medical Defendants. Nor
would such evidence be relevant to the Custody Defendants. Such evidence might stir undue
sympathy; it would be hard for a jury to ignore such evidence as it attempts to assess the conduct
of the individual Medical Defendants. It takes no stretch of the imagination to understand the
Medical Defendants’ concerns that they would be prejudiced by the admission of such evidence
at a joint trial.
Of course, the jury would be told to consider such evidence only as to Wexford. But,
such evidence would prolong the trial; it would inject an issue not relevant to the many
individual defendants; it is potentially inflammatory; and the reality is that it would be difficult
for the jury to compartmentalize such evidence. See Veal v. Kachiroubas, No. 12 C 8342, 2014
WL 321708, at *6 (N.D. Ill. Jan. 29, 2014) (“Presenting evidence to the jury regarding a villagewide policy, practice or custom involving multiple improper police actions poses a danger of
undue prejudice to the defendant officers by creating the perception that the police department
routinely acts improperly, even if the officers acted properly in this case.”); Humbert, 2012 WL
1066478, at *2 (noting that a plaintiff's submission of “evidence of prior misconduct by police
officers” to demonstrate “deliberate indifference, or a custom or policy of constitutional
violations . . . . would unduly prejudice” the individual defendants); Taylor, 2010 WL 5247903,
Wexford and the Medical Defendants did not include Bost’s Rule 30(b)(6) deposition
notice as an exhibit.
at *2 (“[W]hile a jury instruction could limit the harm to Defendant Moritz from prejudicial
evidence, no instruction is likely to remove entirely the potential for prejudice.”); Beasley, 2010
WL 3221848, at *3 (finding that such evidence against a municipality “would be highly
prejudicial to the individual government employees”).
Bifurcation of the Monell Claim will allow the Court to separate issues and evidence as
necessary to avoid prejudice. Moreover, it will facilitate an expeditious trial as to the individual
defendants, avoiding the delay inherent in the discovery that would be required for the Monell
Claim. This could lead to a reduction of costs, without any real prejudice to plaintiff. As Judge
Chasanow has said: “Streamlining the issues and limiting discovery . . . will curb rather than
increase costs. . . .” Taylor, 2010 WL 5247903, at *2; see also Beasley, 2010 WL 3221848, at
*3 (stating that “bifurcation allows the court to isolate evidence regarding municipal policies and
customs . . . .”); Dawson, 896 F. Supp. at 540 (discussing, in the context of a Monell Claim,
coupled with allegations against individual officers, that “[t]he best way to avoid the conflicts
resulting in trying the two claims together is to bifurcate them”); Marryshow, 139 F.R.D. at
320 (finding that “[b]ifurcation facilitates a trial in which the Court can allow in evidence only
that portion, if any, of the Plaintiff's custom, practice or policy evidence that is relevant and
admissible . . . .”).
If the Monell Claim goes forward, it is possible that some witnesses may be required to
attend a second deposition or appear at a second trial. But, as Wexford and the Medical
Defendants argue, few witnesses would be required to testify twice should plaintiff pursue her
Monell Claim. ECF 149 at 8. And, inconvenience to the witnesses is outweighed by the
potential savings of time and expenses in the first instance.
Moreover, I am not persuaded by plaintiff’s argument that bifurcation would infringe on
her Seventh Amendment right to a jury trial. The Seventh Amendment provides: “In suits at
common law, where the value in controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of
the United States, than according to the rules of the common law.”
The Court of Appeals for the Fifth Circuit has explained: “The Seventh Amendment
entitles parties to have fact issues decided by one jury, and prohibits a second jury from
reexamining those facts and issues. Thus, [the] Constitution allows bifurcation of issues that are
so separable that the second jury will not be called upon to reconsider findings of fact by the
first.” Castano v. Am. Tobacco Co., 84 F.3d 734, 750 (5th Cir. 1996); accord Matter of RhonePoulenc Rorer, Inc., 51 F.3d 1293, 1303 (7th Cir.) (“The right to a jury trial in federal civil
cases, conferred by the Seventh Amendment, is a right to have juriable issues determined by the
first jury impaneled to hear them (provided there are no errors warranting a new trial), and not
reexamined by another finder of fact.”), cert. denied, 516 U.S. 867 (1995).
Contrary to Bost’s argument, bifurcation of the Monell Claim against Wexford will not
abridge plaintiff’s Seventh Amendment rights. As Wexford and the Medical Defendants point
out, the bifurcation plan under consideration would ensure that the first jury’s decision is not
reexamined by the second jury. ECF 149 at 12-13. In particular, the first jury would consider
whether one or more of the Medical Defendants violated Neal’s constitutional rights, while the
second jury would be asked to determine whether Wexford’s policies, procedures, and customs
were the moving force behind the provision of allegedly inadequate medical care. Id. If some or
all of the Medical Defendants are found to have violated Neal’s constitutional rights, the second
jury will be instructed accordingly and informed that it may not reconsider that issue. As Judge
Quarles stated in Newsome v. Up-to-Date Laundry, Inc., 219 F.R.D. 356, 364 (D. Md. 2004):
“[I]n a bifurcated trial, the Court would avoid conflicts with the reexamination clause of the
Seventh Amendment by using a detailed verdict form to record the first phase jury's factual
findings.” I am confident that the Court and the parties can draft jury instructions and a verdict
form that protects plaintiff’s Seventh Amendment rights.
In sum, I am satisfied that the Court can avoid any risk of infringing on plaintiff’s
Seventh Amendment rights through the careful crafting of jury instructions and verdict forms.
By exercising caution, as judges in this District have done many times under similar
circumstances, the Court will ensure that any issues considered by the first jury are not
reconsidered by the second jury.
In view of the foregoing, I shall GRANT both the Medical Defendants’ Motion and the
Custody Defendants’ Motion, because bifurcation of the Monell Claim, and the stay of discovery
as to the Monell Claim, will serve to conserve resources, promote judicial efficiency, and avoid a
significant risk of prejudice to the individual defendants, without any real prejudice to Bost.
The first trial in this case shall resolve all of plaintiff’s remaining claims against the
individual defendants. After resolution of the claims against the individual defendants, the Court
will issue a scheduling order that includes a reasonable period of time for discovery on issues
pertinent to the Monell Claim and for the filing of dispositive motions.
An Order follows, consistent with this Memorandum Opinion.
Date: May 8, 2017
Ellen Lipton Hollander
United States District Judge
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