Burnett v. Bishop et al
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 1/31/2017. (c/m 2/1/17 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TURNER ANTHONY BURNETT,
FRANK B. BISHOP, et al.,
Civil Action No. GLR-16-510
THIS MATTER is before the Court on two Motions to Dismiss or,
in the alternative, for Summary Judgment: one filed by Defendant
Frank Bishop (ECF No. 14) and the other by Defendants Dr. Collin
Ottey, Dr. Mahboob Ashraf,1 William Beeman, Brenda Reese, Travis
Barnhart, and Wexford Health Services2 (ECF No. 15).
is Plaintiff Turner Anthony Burnett’s unopposed Motion Requesting
Leave to File an Amended Complaint (ECF No. 12).
ripe for disposition and no hearing is necessary.
105.6 (D.Md. 2016).
The Motions are
See Local Rule
For the reasons outlined below, the Court will
grant the Motions.
At all times relevant to his allegations, Burnett was an inmate
incarcerated at the North Branch Correctional Institution (“NBCI”)
in Cumberland, Maryland.
(Am. Compl. ¶ 1 at 3,3 ECF No. 12 at 2–
The Court will direct the Clerk to update the case caption by
correcting the spelling of this Defendant’s name from “Mahboob
Ashrap” to “Mahboob Ashraf.”
The Court will refer to these Defendants collectively as
In his Amended Complaint, Burnett repeats paragraph numbers
Bishop is NBCI’s Warden and Wexford Health contracts with NBCI
to provide medical services for NBCI’s inmates.
(Id. ¶¶ 2, 8 at 3,
The remaining Defendants are Wexford employees.
(Id. ¶¶ 3–7 at
Burnett presents three
First, he asserts that Defendants failed to ensure that inmate nail
clippers were properly disinfected.
distributing them to inmates.
At one point, NBCI medical
(Id. ¶ 4 at 6).
“made a conscious decision” to transfer these responsibilities to
(Id. ¶¶ 2, 5 at 6).
Burnett alleges that
“none of the [corrections] officers were trained as to the legal
requirements of properly cleaning and disinfecting . . . the nail
clippers in hot soapy water, [rinsing them], and plac[ing] [them]
in Barbicide after each use for ten (10) minutes as stated in
(Id. ¶ 6 at 6).
Defendants also permitted
the corrections officers to ignore “Barbicide[’s] directions for
use” and “[i]nformation and warnings by the National Hepatitis
Correctional Network” by placing “contaminated” nail clippers “into
the same bowl.”
(Id. ¶¶ 7, 8 at 7).
Burnett asserts that in April
2015, he contracted the Hepatitis C virus (“HCV”) when he cut
one through eight for what would be paragraphs nine through sixteen.
To avoid confusion, when citing paragraph numbers one through
eight, the Court will also include the page number on which the
Burnett does not cite the “federal guidelines” he references.
(Id. ¶¶ 9, 17).
Second, Burnett alleges Wexford failed to provide adequate
medical care after Burnett was diagnosed with HCV.
that Barnhart, who works in NBCI’s infectious disease department,
“spoke candidly and in depth” with Burnett about how NBCI medical
personnel would treat his HCV.
(Id. ¶ 19).
Burnett also concedes
that Dr. Ashraf and Barnhart explained that he did not have the
correct genotype of HCV for the prescription drug Harvoni to be
(Id. ¶ 23).
Nonetheless, Burnett asserts that Wexford
“withheld obvious medical treatment” when it refused to prescribe
(Id. at 11).5
Third, Burnett asserts that Defendants ignored a longstanding
order of the Maryland Department of Public Safety and Correctional
Services (“DPSCS”) that corrections facilities in Maryland conduct
annual tuberculin skin tests on inmates.
(Id. at 5).6
however, does not allege that he was exposed to or contracted
In February 2016, Burnett, acting pro se, sued Defendants under
42 U.S.C. § 1983 (2012).
(ECF No. 1).
Burnett alleges that
Defendants violated his Eighth Amendment right to be free from cruel
and unusual punishments.
Burnett seeks declaratory relief
Burnett does not assign a paragraph number to this allegation.
Burnett does not assign a paragraph number to this
and several million dollars in compensatory and punitive damages.
(Am. Compl. ¶¶ A–J).
prescribe him Harvoni.
in May 2016.
He also asks the Court to order that Wexford
(Id. ¶ E).
(ECF No. 6).
Burnett obtained representation
Approximately one month later, Burnett
filed his Motion Requesting Leave to File an Amended Complaint (ECF
Defendants filed their Motions to Dismiss or, in the
alternative, for Summary Judgment (ECF Nos. 14, 15) -- which Burnett
opposed (ECF Nos. 17, 18) -- in July 2016.
Burnett’s Motion for Leave to File Amended Complaint
Under Federal Rule of Civil Procedure 15(a), “[t]he court
should freely give leave [to amend a complaint] when justice so
The decision whether to grant
leave to amend lies within the sound discretion of the district
Medigen of Ky., Inc. v. Pub. Serv. Comm’n of W. Va., 985
F.2d 164, 167–68 (4th Cir. 1993).
Burnett’s proposed changes to his
original Complaint are mainly, if not entirely, non-substantive.
(See ECF No. 12-2) (depicting changes to original Complaint).
Considering the nature of Burnett’s changes and Bishop’s lack of
In his Motion, Burnett states that he received Wexford’s
consent to file an amended complaint. To date, the Court has no
record that Bishop has filed a response in opposition. Also, the
Court notes that because Burnett’s Amended Complaint was filed by
counsel, it is not entitled to liberal construction. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (explaining that pro se pleadings
are liberally construed and held to a less stringent standard than
pleadings drafted by lawyers).
opposition, the Court will grant Burnett’s Motion and consider his
When a plaintiff files an amended complaint, it generally moots
any pending motions to dismiss because the original complaint is
See Pac. Bell Tel. Co. v. Linkline Commc’ns, Inc., 555
U.S. 438, 456 n.4 (2009) (“Normally, an amended complaint supersedes
the original complaint.”).
Where “some of the defects raised in the
original motion remain in the new pleading, [however,] the court
simply may consider the motion as being addressed to the amended
To hold otherwise would be to exalt form over substance.”
Buechler v. Your Wine & Spirit Shoppe, Inc., 846 F.Supp.2d 406, 415
(D.Md.2012) (quoting 6 Charles Alan Wright et al., Federal Practice
& Procedure § 1476 (3d ed. 2010)). Because all of the defects raised
Defendants’ Motions remain operative and the Court will construe
them as directed at Burnett’s Amended Complaint.
Standard of Review
Defendants style their Motions as motions to dismiss under Rule
12(b)(6) or, in the alternative, for summary judgment under Rule 56.
A motion styled in this manner implicates the Court’s discretion
Montgomery Cty., 788 F.Supp.2d 431, 436–37 (D.Md. 2011), aff’d sub
nom., Kensington Volunteer Fire Dep’t, Inc. v. Montgomery Cty., 684
F.3d 462 (4th Cir. 2012).
This Rule provides that when “matters
outside the pleadings are presented to and not excluded by the
court, the [Rule 12(b)(6)] motion must be treated as one for summary
judgment under Rule 56.”
The Court “has
‘complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is offered in
conjunction with a Rule 12(b)(6) motion and rely on it, thereby
converting the motion, or to reject it or simply not consider it.’”
Wells-Bey v. Kopp, No. ELH-12-2319, 2013 WL 1700927, at *5 (D.Md.
Apr. 16, 2013) (quoting 5C Wright & Miller, Federal Practice &
Procedure § 1366, at 159 (3d ed. 2004, 2012 Supp.)).
The United States Court of Appeals for the Fourth Circuit has
12(b)(6) motion to a Rule 56 motion: notice and a reasonable
opportunity for discovery.
See Greater Balt. Ctr. for Pregnancy
Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir. 2013).
When the movant expressly captions its motion “in the alternative”
pleadings for the court’s consideration, the parties are deemed to
be on notice that conversion under Rule 12(d) may occur.
v. Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005).
The Court “does not
have an obligation to notify parties of the obvious.”
Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).
Ordinarily, summary judgment is inappropriate when “the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont
de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir.
Yet, “the party opposing summary judgment ‘cannot complain
that summary judgment was granted without discovery unless that
party had made an attempt to oppose the motion on the grounds that
more time was needed for discovery.’”
Harrods Ltd. v. Sixty
Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting
Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.
To raise sufficiently the issue that more discovery is
declaration under Rule 56(d), explaining the “specified reasons” why
“it cannot present facts essential to justify its opposition.”
A Rule 56(d) affidavit is inadequate if it
simply demands “discovery for the sake of discovery.”
Mayor of Balt., 807 F.Supp.2d 331, 342 (D.Md. 2011) (citation
A Rule 56(d) request for discovery is properly denied
when “the additional evidence sought for discovery would not have by
itself created a genuine issue of material fact sufficient to defeat
Strag v. Bd. of Trs., Craven Cmty. Coll., 55
F.3d 943, 953 (4th Cir. 1995).
The Fourth Circuit has warned that it “‘place[s] great weight
on the Rule 56[d] affidavit’ and that ‘a reference to Rule 56[d] and
opposition to a motion for summary judgment is not an adequate
substitute for a Rule 56[d] affidavit.’”
(quoting Evans, 80 F.3d at 961).
Harrods, 302 F.3d at 244
Failing to file a Rule 56(d)
affidavit “is itself sufficient grounds to reject a claim that the
opportunity for discovery was inadequate.”
F.3d at 961).
Id. (quoting Evans, 80
Nevertheless, the Fourth Circuit has indicated that
there are some limited instances in which summary judgment may be
premature notwithstanding the non-movants’ failure to file a Rule
A court may excuse the failure to file a
Rule 56(d) affidavit when “fact-intensive issues, such as intent,
are involved” and the nonmovant’s objections to deciding summary
judgment without discovery “serve as the functional equivalent of
Id. at 245 (quoting First Chicago Int’l v. United
Exch. Co., 836 F.2d 1375, 1380–81 (D.C.Cir. 1988)).
Defendants’ Motions as ones for summary judgment because he has not
had a reasonable opportunity for discovery.
To be sure, this case
is in its preliminary stages and the Court has yet to enter a
See Local Rule 104.4 (D.Md. 2016) (explaining
that “discovery shall not commence . . . until a scheduling order is
Because both requirements for conversion are satisfied,
however, the Court will deny Burnett’s request for discovery and
construe Defendants Motions as ones for summary judgment.
The parties were
on notice that the Court might resolve
Defendants’ Motions under Rule 56 because Defendants styled their
Motions in the alternative for summary judgment and presented
extensive extra-pleading material for the Court’s consideration.
See Moret, 381 F.Supp.2d at 464.
Burnett does not express his
request for discovery in a Rule 56(d) affidavit; he limits his
request to his opposition memoranda.
This alone is reason to deny
See Harrods, 302 F.3d at 244.
But even if
Burnett had sworn his request in a Rule 56(d) affidavit, he does not
specify the facts he would seek to discover.
As a result, the Court
has no way of determining whether the facts that Burnett would
pursue during discovery would by themselves generate a genuine
dispute of material fact.
See Strag, 55 F.3d at 953.
What is more, Defendants’ principal arguments for why the Court
should grant summary judgment are not fact intensive.
Burnett does not contend that he exhausted
administrative remedies but he is unable to prove that before
discovery because Defendants retain control over his requests for
Nor does Burnett assert he seeks to discover
facts demonstrating that due to insurmountable obstacles at NBCI,
administrative relief was effectively unavailable to him.
Burnett argues -- with no legal support -- that the Court should
countenance Burnett’s submission of a request for administrative
remedy filed by a similarly situated inmate during the relevant time
(ECF No. 17-1 at 7).
Wexford’s primary argument is that
its records show that Burnett received constitutionally adequate
comprehensiveness of Wexford’s records; rather, he asserts in a
conclusory and boilerplate manner that he “disputes and/or questions
(ECF No. 18-1 at 10).
The Court finds both requirements for conversion are satisfied.
The parties were on notice that the Court might construe Defendants’
Motions as one for summary judgment and Burnett failed to express
his request for discovery in a Rule 56(d) affidavit or specify the
fact-intensive issues that would generate a genuine dispute of
material fact. Accordingly, the Court will resolve Defendants’
Motions under Rule 56.
In reviewing a motion for summary judgment, the Court views the
facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party’s favor.
Ricci v. DeStefano,
557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,
demonstrates, through “particular parts of materials in the record,
including depositions, documents, electronically stored information,
interrogatory answers, or other materials,” 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), (c)(1)(A).
Significantly, a party must be able to present the materials it
cites in “a form that would be admissible in evidence,” Fed.R.Civ.P.
56(c)(2), and supporting affidavits and declarations “must be made
on personal knowledge” and “set out facts that would be admissible
in evidence,” Fed.R.Civ.P. 56(c)(4).
Once a motion for summary judgment is properly made and
supported, the burden shifts to the nonmovant to identify evidence
showing there is genuine dispute of material fact.
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
The nonmovant cannot create a genuine dispute of material fact
“through mere speculation or the building of one inference upon
Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)
A “material fact” is one that might affect the outcome of a
Anderson, 477 U.S. at 248; see also JKC Holding Co.
v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001)
(citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
Whether a fact is considered to be “material” is determined by the
substantive law, and “[o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248;
concerning a “material” fact arises when the evidence is sufficient
to allow a reasonable jury to return a verdict in the nonmoving
Anderson, 477 U.S. at 248.
If the nonmovant has
failed to make a sufficient showing on an essential element of her
case where she has the burden of proof, “there can be ‘no genuine
[dispute] as to any material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.”
Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986).
In the prison context, the Eighth Amendment encompasses claims
that prison personnel failed to protect an inmate from harm or
failed to provide medical care.
See Farmer v. Brennan, 511 U.S.
825, 832 (1994) (explaining that under the Eighth Amendment, prison
officials “must ensure that inmates receive adequate food, clothing,
shelter, and medical care, and must ‘take reasonable measures to
guarantee the safety of the inmates[.]’” (quoting Hudson v. Palmer,
468 U.S. 517, 526–27 (1984))); see also Helling v. McKinney, 509
U.S. 25, 31 (1993) (“It is undisputed that the treatment a prisoner
receives in prison and the conditions under which he is confined are
subject to scrutiny under the Eighth Amendment.”).
Burnett’s Amended Complaint in the light most favorable to him, he
alleges that Defendants failed to prevent harm to him when they did
not ensure that corrections officers were trained in how to properly
disinfect nail clippers (the “Failure-To-Train Claim”).
also asserts that Defendants failed to provide medical care when
they refused to prescribe Harvoni (the “Medical-Care Claim”) and
conduct annual tuberculin skin exams (the “Failure-To-Test claim”).
Although it is unclear precisely which of Burnett’s three claims he
asserts against which Defendants, the Court will assume Burnett
Warden Bishop’s Motion
The Court will grant Warden Bishop’s Motion as to the Failureto-Train
exhaust administrative remedies.
The Court will also grant Warden
Bishop’s Motion as the Medical-Care Claim because the record is
bereft of any evidence from which a reasonable jury could conclude
that Burnett satisfied the elements of supervisory liability.
Warden Bishop argues that the Failure-to-Train and Failure-toTest
confinement to exhaust their administrative remedies before filing
suit in court.
It provides, in pertinent part, that “[n]o action
shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”
§ 1997e (2012).
The PLRA’s exhaustion provision requires “prisoners
to pursue administrative grievances until they receive a final
denial of their claim, appealing through all available stages in the
Chase v. Peay, 286 F.Supp.2d 523, 530
(D.Md. 2003), aff’d, 98 F.App’x 253 (4th Cir. 2004).
consider a claim that has not been exhausted.
A court cannot
See Jones v. Bock,
549 U.S. 199, 219–20 (2007); see Haskins v. Hawk, No. ELH-11-2000,
2013 WL 1314194, at *8 (D.Md. Mar. 29, 2013) (“There is no question
that exhaustion is mandatory under the PLRA and that unexhausted
claims cannot be brought in court.” (quoting Jones, 549 U.S. at
procedure” (“ARP”) available to Maryland State prisoners for the
employee[s] of the Division of Correction.” Md. Code Ann., Corr.
Servs. (“CS”) § 10-206(a) (West 2017); see generally CS §§ 10-201
et seq.; M d .
( “ COMAR”) 12.07.01.01(B)(1) (2017)
An inmate must exhaust the ARP process as a
condition precedent to further review of the inmate’s grievance.
See CS § 10-206(b); see also COMAR 12.07.01.02.D.
The first step in the ARP process is filing a request for
administrative remedy (commonly referred to as an “ARP”) with the
warden of the prison.
See COMAR 12.07.01.04.
The ARP must be filed
within thirty days of the date on which the incident occurred, or
within thirty days of the date the inmate first gained knowledge of
the incident or injury giving rise to the complaint, whichever is
If the request is denied, a prisoner
has thirty calendar days to file an appeal with the Commissioner of
If the appeal is denied, the
prisoner has thirty days to file a grievance with the Inmate
12.07.01.03; COMAR 12.07.01.05B.
Warden Bishop’s uncontroverted evidence demonstrates that for
the Failure-to-Train and Failure-to-Test Claims, Burnett failed to
Administrative Remedy Coordinator, Jared Zais, declares that he
searched the records of NBCI’s Administrative Remedy Office and did
not uncover any ARPs from Burnett addressing his Failure-to-Train
and Failure-to-Test Claims.
(ECF No. 14-3).
To be sure, Burnett
presents an ARP in which another inmate challenged the alleged
failure to train NBCI corrections officers in the proper procedure
for disinfecting nail clippers.
Burnett maintains that this ARP is
sufficient to satisfy this first step in the ARP process because the
other inmate is similarly situated.
(See ECF No. 17-1 at 7). But
Burnett cites no case, and the Court finds none, in which any court
held that is permissible to vicariously exhaust administrative
remedies through another inmate.
And, even assuming that the Court
could credit the ARP filed by another inmate, Jennifer Schmitt, a
DPSCS Case Management Supervisor, declares that Burnett did not file
ARP appeals challenging any of the subject matter of his Amended
(ECF No. 14-5).
Accordingly, the Court concludes that
based on the undisputed record evidence, Burnett failed to exhaust
administrative remedies for his Failure-to-Train and Failure-to-Test
Thus, the Court will grant Warden Bishop’s Motion as to
Warden Bishop argues that the Court should also enter judgment
for him on the Medical-Care Claim because Warden Bishop cannot be
liable, as a matter of law, for any alleged deficiencies regarding
the medical care Wexford rendered to Burnett.
Indeed, there is no
respondeat superior liability under 42 U.S.C. § 1983.
Martin, 355 F.3d 766, 782 (4th Cir. 2004).
Thus, to the extent
Burnett seeks to hold Warden Bishop vicariously liable for Wexford’s
actions in caring for Burnett, his claim fails as a matter of law.
Still, the Fourth Circuit does recognize the doctrine of
supervisory liability, under which a supervisor can be liable for
the unconstitutional actions or inactions of his subordinates.
Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001).
claims for failure to provide medical care based on supervisory
liability require a showing that the supervisory defendant: (1)
“failed promptly to provide an inmate with needed medical care”; (2)
“deliberately interfered with the prison doctors’ performance”; or
physicians’ constitutional violations.”
Miltier v. Beorn, 896 F.2d
848, 854 (4th Cir. 1990) (internal citations omitted), overruled in
part on other grounds by Farmer, 511 U.S. at 837.
The indifference that is required is “deliberate indifference.”
See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“We therefore
conclude that deliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction of
pain’ [that is] proscribed by the Eighth Amendment.” (internal
indifference when he has actual knowledge that an inmate “face[s] a
substantial risk of serious harm and disregards that risk by failing
to take reasonable measures to abate it.”
Farmer, 511 U.S. at 847.
Constructive knowledge will not suffice -- “the official must both
be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the
Id. at 837.
Here, Burnett does not allege that Warden Bishop was personally
involved in directing Wexford’s decisions regarding his care.
Burnett must show that Warden Bishop deliberately interfered with
Wexford’s administration of care or was deliberately indifferent to
the constitutionally inadequate care they purportedly provided.
Miltier, 896 F.2d at 854.
The record, however, is entirely devoid
of any facts from which a reasonable jury could find Burnett has
made these showings.
The Court, therefore, will grant Warden
Bishop’s Motion as to the Medical-Care Claim.
The Court will enter judgment for Wexford on all three of
Burnett’s claims because there is no evidence in the record from
which a reasonable jury could conclude Wexford violated Burnett’s
Eighth Amendment rights.
To prevail on an Eighth Amendment claim for denial of medical
care, a prisoner must demonstrate that the action or inaction of
prison staff amounted to deliberate indifference to a serious
See Estelle, 429 U.S. at 106.
To prove deliberate
indifference, an inmate must show that he was objectively suffering
from a serious medical need and the prison staff was subjectively
aware of the need, but failed to either provide medical attention or
ensure that it was available.
See Farmer, 511 U.S. at 837.
“sufficiently culpable state of mind.”
Jackson v. Sampson, 536
F.App’x 356, 357 (4th Cir. 2013) (quoting De’Lonta v. Angelone, 330
F.3d 630, 634 (4th Cir. 2003)).
De’Lonta, 330 F.3d at 634.
Negligence will not suffice.
Rather, a constitutional violation does
not occur unless the medical providers’ actions were “so grossly
incompetent, inadequate, or excessive as to shock the conscience or
to be intolerable to fundamental fairness.”
Miltier, 896 F.2d at
Conduct rises to this level when a medical provider fails to
See id. at 853.
Furthermore, “[d]isagreements between
an inmate and a physician over the inmate’s proper medical care do
not state a § 1983 claim unless exceptional circumstances are
Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)
(citation omitted); see Russell v. Sheffer, 528 F.2d 318, 319 (4th
Cir. 1975) (“Questions of medical judgment are not subject to
judicial review.” (citation omitted)).
Burnett does not assert that Wexford failed to provide any care
for his HPV.
He even acknowledges in his Amended Complaint that
Wexford vaccinated him and placed him on antibiotics.
¶¶ 16, 18).
He also indicates that Wexford offered a liver biopsy,
but he refused it because in his opinion, such a procedure is not a
“medical prerequisite” to receiving treatment with Harvoni.
In his opposition memorandum, Burnett reaffirms that he
“disputes” that a liver biopsy is a condition precedent to taking
(See ECF No. 18-1 at 9).
At bottom, Burnett seeks to compel Wexford to prescribe him
Harvoni, and he asserts that Wexford’s failure to prescribe this
medication constitutes deliberate indifference to his medical needs.
The Court finds that Burnett’s Medical-Care Claim epitomizes a mere
disagreement with medical care –- a claim which is not cognizable
under the Eighth Amendment, absent exceptional circumstances.
Wright, 766 F.2d at 849.
No exceptional circumstances are present
in this case.
Accordingly, to the extent Burnett challenges
Insofar as Burnett challenges Wexford’s actions outside their
decision not to prescribe Harvoni, the Court finds as a matter of
law that Wexford’s actions do not rise to the level of an Eighth
Amendment violation. Wexford presents extensive medical records and
reports that document the care Burnett received after his HCV
(See ECF No. 15-4).
This documentation shows that
Wexford performed an ultrasound on Burnett’s abdomen, administered
Ultram for pain management, and counseled Burnett regarding the
importance of undergoing a liver biopsy if he wanted to pursue
antiviral medication as part of his treatment.
(Id. at 17, 23, 40).
Burnett originally consented to a liver biopsy, but later refused
despite Wexford’s encouragement that Burnett undergo the procedure.
(Id. at 31, 40–41).
decision to prevent Wexford from performing what it considered an
important step in Burnett’s treatment plan, the Court finds as a
incompetent, inadequate, or excessive as to shock the conscience or
to be intolerable to fundamental fairness.”
Miltier, 896 F.2d at
Thus, to the extent Burnett challenges Wexford’s action
unrelated to refusing to prescribe Harvoni, the Court will grant
Finally, the Court will also grant Wexford’s Motion as to the
Failure-To-Train and Failure-To-Test Claims.
The Court has already
concluded that these claims are barred because Burnett failed to
exhausted administrative remedies, the Court would still enter
judgment for Wexford on these claims.
disinfecting and distributing nail clippers.
(See Am. Compl. ¶ 5 at
6). Burnett could only pursue his Failure-To-Claim against Wexford
based on a theory of supervisory liability.
But Burnett presents no
facts from which a reasonable jury could conclude Wexford -- a
private company contracted by the State to provide medical care to
inmates (see id. ¶ 8 at 4) -- supervises NBCI corrections officers.
See Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001) (explaining
knowledge that his subordinate was engaged in conduct that posed a
pervasive and unreasonable risk of constitutional injury to citizens
like the plaintiff” (emphasis added) (quoting Shaw v. Stroud, 13
F.3d 791, 799 (4th Cir. 1994))).
As for the Failure-To-Test Claim, Burnett does not allege, much
less show, that Wexford’s purported failure to conduct annual
tuberculin tests caused him any injury, let alone serious injury.
See Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993) (“If a
prisoner has not suffered serious or significant physical or mental
injury as a result of the challenged condition, he simply has not
been subjected to cruel and unusual punishment within the meaning of
For the foregoing reasons, the Court will GRANT Burnett’s
Motion Requesting Leave to File an Amended Complaint (ECF No. 12)
and construe Warden Bishop’s and Wexford’s Motions (ECF Nos. 14, 15)
as Motions for Summary Judgment and GRANT them.
The Court will also
enter JUDGMENT for Defendants on all of Burnett’s claims in his
Amended Complaint (ECF No. 12 at 2–13) and direct the Clerk to CLOSE
A separate Order follows.
Entered this 31st day of January, 2017
George L. Russell, III
United States District Judge
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