Rolph v. Rolph et al

Filing 24

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 2/28/2017. (c/m 2/28/17)(kr2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN MICHAEL ROLPH, II

*

Plaintiff

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v

*

DEBORAH RICHARDSON, et al.

*

Defendants

Civil Action No. ELH-16-594

*
***
MEMORANDUM OPINION

The self-represented plaintiff, John Rolph II, filed a civil rights complaint when he was
hospitalized at Spring Grove Hospital (ECF 1), and amended it when he was incarcerated as a
pretrial detainee at the Baltimore County Detention Center (“BCDC”). ECF 5. Of relevance
here, Rolph alleges that BCDC Warden Deborah Richardson and Program Manager Sharon
Tyler, defendants, refused to provide him with a religious diet, failed to provide him with
adequate medical care, and subjected him to improper conditions of confinement. See ECF 5
(Amended Complaint). Defendants have moved to dismiss or, in the alternative, for summary
judgment. ECF 20 (“Motion”). Plaintiff has not opposed the motion, but was advised of his
right to do so and of the potential consequences of failing to file a response to the Motion. ECF
23.
No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2016). For
the reasons that follow, defendants’ Motion shall be construed as a motion for summary
judgment and shall be granted. Judgment shall be entered in favor of the defendants.
I.

Factual and Procedural History

The original Complaint was filed by plaintiff when he was hospitalized at Spring Gove
Hospital (ECF 1), and it contained two disparate claims. The first was a claim asserted by

plaintiff against his father for the unauthorized sale of plaintiff’s motor vehicle during plaintiff’s
incarceration. I dismissed that claim on March 2, 2016, because it did not state a claim under 42
U.S.C. §1983. See ECF 3; ECF 4. The second claim pertained to Spring Grove Hospital.
Plaintiff alleged that he was not receiving proper medical care for multiple deteriorating and
bulging discs; an anxiety disorder; a large abdominal hernia; and post-traumatic stress disorder.
ECF 1 at 6 – 10. Because Spring Grove Hospital is not a “person” within the meaning of 42
U.S.C. §1983, but the allegation otherwise stated a colorable claim, plaintiff was granted 28 days
to supplement the claim by naming the individual staff members allegedly responsible for the
failure to provide proper care. ECF 3; ECF 4.
Plaintiff’s supplemental complaint (ECF 5) did not address the allegations regarding his
medical care at Spring Grove. Rather, the supplemental complaint raised entirely new claims
against the Warden and the Program Director at BCDC and did not reference the claims arising
at Spring Grove. ECF 5. Therefore, the supplemental complaint is more properly viewed as an
Amended Complaint under Fed. R. of Civ. Proc. 15.
“An amended pleading ordinarily supersedes the prior pleading. The prior pleading is in
effect withdrawn as to all matters not restated in the amended pleading.” Nisbet v. Van Tuyl, 224
F.2d 66, 71 (7th Cir. 1955) (citing 71 C.J.S., Pleading, § 321 at 717). Thus, the only claims
addressed herein will be those raised in the Amended Complaint (ECF 5).
II.

Amended Complaint

Plaintiff states that he arrived at BCDC on March 8, 2016, and went through the intake
process the day he arrived. ECF 5 at 3. Plaintiff states he showed the nurse1 with whom he
spoke at intake “documentation that [he] converted to Judaism approximately eight months ago.”
1

Plaintiff does not provide the nurse’s name, nor is she named as a defendant.
2

ECF 5 at 3. Further, he informed her that he was “on a kosher diet” and asked her to “enter that
on the computer.” Id. He claims he showed the nurse “one of two papers” he had with him
“proving [his] Jewish faith.” Id.
Although plaintiff believes the nurse entered the information regarding his religious
preference into the computer, he states that he was denied kosher meals. ECF 5 at 3. He states
that from March 8, 2016 through March 14, 2016, all he had to eat was “two eggs and a bag of
chips.” Id. Plaintiff claims he “wrote multiple 118s to everyone” at BCDC in an effort to obtain
his religious diet. Id. Specifically, he states he wrote to “multiple shift captains, . . . the head
hancho in charge of the meals,” church services staff, and to the defendants, Program Director
Sharon Tyler and Warden Deborah Richardson. Id.
In addition to plaintiff’s request for kosher meals, he informed BCDC staff in his written
correspondence that he was allergic to turkey, beef by-products, white bread, and sugar. Id.
Plaintiff explains that he experiences allergic reactions when exposed to these food items,
causing his throat to close and producing hives on the back of his arms. Id. According to Rolph,
he had to fast due to his multiple food allergies. Id.
On March 14, 2016, Rolph received a letter from Tyler stating that he would need to
provide the name of his Rabbi and synagogue in order for him to be approved for a kosher diet.
ECF 5 at 3. Further, Tyler informed plaintiff that Richardson forwarded to the medical staff the
information regarding plaintiff’s food allergies.

Id.

Plaintiff responded to Tyler’s letter,

indicating that he had shown the intake nurse proof of his religion; that Tyler could see the
paperwork he had proving his religious preference; he was “absolutely starving”; and he was
invoking his “fifth amendment rights as far as the personal information she requested.” Id.

3

Rolph also points out that he is “obviously new to the [Jewish] faith,” but claims that he
studies every day and feels “horrible” that he has been “forced . . . to come close to fasting
totally.” ECF 5 at 5. According to plaintiff, defendants were “forcing [him] to break [his] faith
by consuming their regular meals.” Id. He also points out that he had a kosher diet for the eight
months that he was at Spring Grove Hospital. Id.
In addition, plaintiff claims that when he got to BCDC he was “placed on a boat [sic] (on
the floor),” despite his having informed correctional staff that he has a prior diagnosis of a
“deteriorating disc, protruding disc, bulging disc, and sciatica problems.” ECF 5 at 4. Plaintiff
states that he told “the sheriff’s deputy that [he] needed to be placed on a bunk (bottom) and [he]
needed an extra mat for [his] back.” Id. at 3. The sheriff told Rolph that “the best [he] can do”
for plaintiff was to provide him with a “boat [sic] on the floor.” Id. at 5. Plaintiff claims that his
“back locked up” because he was forced to sleep on the floor. Id. at 3. After sleeping on the
floor, plaintiff claims it felt as though he had a pinched nerve so he went to the medical
department, where he received an x-ray. Id. at 4.
Despite the pain plaintiff claims he experienced, he was still required to sleep on a “boat”
on the floor and was simply moved to a different housing unit, which he refers to as the “crazy
side.” ECF 5 at 4. When plaintiff asked to be moved to the medical housing unit, he was told he
had to be cleared by psychiatry before he could be moved.

Id.

Plaintiff states that he

“subpoenaed [his] arrest records” and discovered notations that he was psychotic and
schizophrenic. Id. Plaintiff disputes those diagnoses and states that he had been cleared by
Spring Grove as “100% mentally competent.” Id. at 5. But, he also states: “Please know I want
to go back to Spring Grove . . . .” Id. at 4.

4

Plaintiff explains that in the housing unit where he was kept (2C), “they kick on the doors
all hours of the day and night and scream loudly.” ECF 5 at 4. Further, Rolph asserts that the
noise causes an increase in his anxiety. Id. Plaintiff states that he had been remanded to Spring
Grove on March 4, 2016, following a court appearance and a “nervous breakdown” he
experienced as a result of not receiving his medication, Clonazepam.2 Id. He explains he was
sent to Spring Grove so that his medication could be straightened out; that he was much happier
when he was there because a social worker was helping him to find a place to live so he could
complete his sentence on home detention; and that he needs to go back to Spring Grove to get his
medication corrected again. Id. He claims he should not have been removed from Spring Grove
because it violated a judge’s order remanding him there. Id. at 5.
Under a heading titled “negligence” plaintiff adds that staff at BCDC were not doing
enough to find him a permanent residence and had only provided him with a list of homeless
shelters. ECF 5 at 5. Further, he alleges that he was having “panic attacks all day long” and a
nervous breakdown, “possibly caused by not being detoxed properly off my medication.” Id. He
states he was taking narcotics twice a day for eight months and “they gave [him] Librium for
detox” but that he had an allergic reaction to it. Id. He adds that he had a staph infection in his
nose causing it to be “swollen and bright red,” but adds he was being sent to “see medical
tomorrow.” Id. In addition, Rolph claims that he had an open wound that was caused by Dr.
Sabba3 at Spring Grove, because he ordered a larger abdominal binder,4 causing the wound. Id.

2

Clonazepam is a benzodiazepine. It affects chemicals in the brain that may be
unbalanced and is prescribed for treatment of seizures and panic disorders. See
https://www.drugs.com/clonazepam.html
3

Dr. Sabba is not a named defendant.

4

Plaintiff suffered a wound to his abdomen and the binder was ordered for its treatment.
5

III.

Defendants’ Response

In support of the Motion, Tyler provided an Affidavit explaining that she is the Program
Manager at BCDC, and she is responsible for supervising all inmate programs, including
religious services. ECF 20-2 at 1 – 2, ¶5. Further, she avers that when plaintiff was admitted to
BCDC on March 8, 2016, he identified his religion as Roman Catholic. Id. at 2, ¶8; ECF 20-4;
ECF 2-5.
On March 11, 2016, Tyler received an Inmate Request Form #118 dated March 20, 2016,
from plaintiff stating that he had been on kosher meals for religious reasons for the past eight
months while he was confined at Spring Grove State Hospital. ECF 20-2 at 2, ¶ 9. Plaintiff
stated that he needed to be placed on a kosher diet “ASAP” and also claimed he was allergic to
turkey, beef byproducts, and white bread. Id. In response to plaintiff’s Inmate Request Form,
Tyler wrote the following on March 11, 2016, ECF 20-5:
I reviewed your file and it indicates you have reported to be Roman Catholic
every time you have been admitted to BCDC; please provide me with the name
of your Rabbi and congregation and once the information is confirmed you
will be provided with kosher meals; and Director Richardson has forwarded
your dietary allergies to medical to resolve.
See also ECF 20-2, ¶ 10.
On March 15, 2016, Tyler received two more Inmate Request forms from plaintiff,
repeating his request for kosher meals and claiming food allergies. ECF 20-2 at 2 – 3, ¶ 11.
Plaintiff also threatened legal action if his request for kosher meals was not granted. Id. And,
plaintiff claimed that he was “‘absolutely starving.’” Id. at 3, ¶ 12.
Despite plaintiff’s claims that he was starving, Tyler notes that plaintiff’s commissary
receipts indicate that as soon as he had money in his inmate account, he bought numerous
packages of Ramen (beef), five beef jerky packages, tuna packages, a cinnamon roll, and an iced

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honey bun. Id. Tyler also notes that many kosher meals contain beef and turkey products and
further notes that all of the items plaintiff purchased at the commissary are contraindicated for
his stated food allergies and to a kosher diet. Id. at ¶13.
According to Tyler, while plaintiff claimed to have documentation proving his
conversion to Judaism, he never provided it to her, despite her advice that he could not receive
kosher meals absent such proof. ECF 20-2 at 3, ¶ 14. Tyler further advised plaintiff that none of
the meals at BCDC included pork products and that he could request and receive a vegetarian
meal. Id. Tyler states that Jewish religious services are provided for inmates on the first
Wednesday of each month. Id. at ¶15. Representatives from Jewish Big Brothers and Sisters
and Rabbi Yanki Dinovitz are available to meet with Jewish inmates at BCDC. Id Despite the
availability of such services, plaintiff never attended the services nor did he request to meet with
either Rabbi Dinovitz or a representative of the Jewish Big Brothers and Sisters. Id. at 4, ¶ 16.
In light of the discrepancies between what plaintiff claimed regarding his faith and his food
allergies, Tyler concluded that plaintiff did not meet the requirements to receive kosher meals
and that he simply requested kosher meals because he did not want to eat the institutionally
prepared meals. ECF 20-2 at 5, ¶ 20.
Further, Tyler explains that there is an increased cost to BCDC in providing kosher
meals. An institutionally-prepared meal costs $1.25 per meal. ECF 20-2 at 4, ¶ 17. However,
because BCDC does not have a kosher kitchen, kosher meals must be ordered from an outside
vendor at a cost of $6.28 per meal. Id. Tyler states that she is required by BCDC policy and
directives to verify a request for a religious diet and either approve or deny it within seven days
of receipt of the request. Id. at ¶ 18. Pursuant to that policy, Tyler denied plaintiff’s request for
kosher meals for multiple reasons: he indicated he was Roman Catholic on his intake statement;

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he failed to provide the name of his Rabbi; he failed to provide the name of his congregation; he
failed to provide documentation of his conversion, which he claimed to have in his possession;
he did not participate in any of the programs established for Jewish inmates; he made
commissary purchases of beef products despite his claimed allergies to same; and because of the
increased cost involved in providing a kosher meal. Id. at 4–5, ¶ 19.
Bonita Cosgrove, the Medical Liaison for BCDC, investigates inmate complaints
regarding medical services provided to inmates at BCDC by the contractual medical services
provider, Correct Care Solutions. ECF 20-3 at 1, ¶¶ 2 – 4. In Cosgrove’s Affidavit, she explains
that on March 10, 2016, plaintiff informed a nurse that he was not eating because he was not
receiving kosher meals. Id. at 2, ¶ 7. In response, plaintiff was advised that only program staff
could approve religious diets and medical care staff were prohibited from doing so; plaintiff was
notified of the proof required for a religious diet several times while at BCDC. Id.
Although plaintiff indicated that he was allergic to turkey and beef products during his
intake interview with a nurse, BCDC medical staff never received any official documentation of
the allergies from an outside doctor or allergist. ECF 20-3 at 2, ¶ 8. Plaintiff did not provide the
name of the physician who tested him for the allergies, despite requests for that information. Id.
Cosgrove states that, absent such documentation, a notation indicating a food allergy could not
be placed into his jail record. Id. Further, she notes that it is not unusual for inmates to claim
food allergies simply because they do not like the institutional food. Moreover, she points out
that when plaintiff was incarcerated at BCDC on July 31, 2016, he claimed an allergy to kiwi,
but made no mention of an allergy to turkey or beef. Id. at 2 – 3, ¶ 9.
With respect to plaintiff’s physical and mental health issues, Cosgrove indicates that the
intake nurse noted a history of gunshot wounds to plaintiff’s abdominal area, right leg, and left

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arm as well as a history of bipolar disorder, anxiety, and schizophrenia. ECF 20-3 at 3, ¶ 10.
Plaintiff reported taking Clonazepam and Seroquel, both psychotropic medications. Id. Plaintiff
was referred to a nurse practitioner for a health assessment, which was performed the day of
intake, March 8, 2016. Id. at ¶ 11.
During plaintiff’s health assessment it was noted that he had an “umbilical wound,” an
abdominal hernia, and that he suffers from chronic pain. ECF 20-3 at 3, ¶ 11. In addition,
plaintiff had a dependence on benzodiazepine, for which he was started on a detox protocol and
prescribed medication to address withdrawal symptoms. Id. at ¶¶ 11, 13. Plaintiff’s umbilical
wound was immediately cleaned and dressed and orders were issued for daily wound care. Id. at
¶ 12. Plaintiff was also referred to the BCDC mental health care provider to evaluate his mental
health issues. Id. at ¶ 13.
On March 10, 2016, plaintiff was seen for a psychiatric evaluation and he was prescribed
Seroquel. ECF 20-3 at 3-4, ¶ 14. The psychiatrist attempted to discuss medications to treat
plaintiff’s anxiety in lieu of Clonazepam, but plaintiff was not interested in trying another
medication. Id. Following the psychiatric evaluation, plaintiff was placed in the mental health
unit and was seen weekly by a mental health clinician. Id.
Plaintiff was seen by medical staff on March 14, 2016, in response to a sick call slip he
submitted, complaining of lower back pain. ECF 20-3 at 4, ¶ 15. An x-ray of plaintiff’s lumbar
spine revealed degenerative disc disease, mild spondylosis, and minimal scoliosis, but no
evidence of a fracture or instability. Id. On March 19, 2016, plaintiff was seen again for
complaints of muscle spasms in his back. Id. at ¶ 17. At that time, plaintiff was prescribed
Motrin and Flexeril, a muscle relaxer, to treat his pain. Id.

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On March 16, 2016, plaintiff was seen again in response to a sick call slip in which he
complained about a swollen nose. ECF 20-3 at 4, ¶ 16. A culture/swab was done and revealed
that plaintiff had a methicillin resistant staph infection. Id. A physician prescribed the antibiotic
Clindamycin, which was administered by BCDC medical staff. Id.
On April 4, 2016, plaintiff was seen for a follow-up evaluation of the umbilical wound,
which the doctor noted was healing well. ECF 20-3 at 4, ¶ 18. He was seen again on April 19,
2016, for a complaint of skin irritation caused by the institutional soap; he was prescribed a
topical steroid cream. Id. at ¶ 19. Plaintiff was not seen again before his release on April 29,
2016. Id. at 5, ¶ 21.
IV. Standard of Review
Defendants' motion is styled as a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, in
the alternative, for summary judgment under Fed. R. Civ. P. 56. A motion styled in this manner
implicates the court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See
Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F. Supp. 2d 431, 436-37 (D. Md.
2011). Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual
disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th
Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters
outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated
as one for summary judgment under Rule 56,” but “[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d); see
Adams Housing, LLC v. The City of Salisbury, Maryland, ____ Fed. App’x ____, 2016 WL
6958439, at *2 (4th Cir. Nov. 29, 2016) (per curiam).

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When the movant expressly captions its motion “in the alternative” as one for summary
judgment, and submits matters outside the pleadings for the court’s consideration, the parties are
deemed to be on notice that conversion under Rule 12(d) may occur; the court “does not have an
obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
253, 261 (4th Cir. 1998). In contrast, a court may not convert a motion to dismiss to one for
summary judgment sua sponte, unless it gives notice to the parties that it will do so. See
Laughlin, 149 F.3d at 261 (stating that a district court “clearly has an obligation to notify parties
regarding any court-instituted changes” in the posture of a motion, including conversion under
Rule 12(d)); Finley Lines Joint Protective Bd. Unit 200 v. Norfolk So. Corp., 109 F.3d 993, 997
(4th Cir. 1997) (“[A] Rule 12(b)(6) motion to dismiss supported by extraneous materials cannot
be regarded as one for summary judgment until the district court acts to convert the motion by
indicating that it will not exclude from its consideration of the motion the supporting extraneous
materials.”); see also Adams Housing, LLC, supra, at *2 (“The court must give notice to ensure
that the party is aware that it must ‘come forward with all of [its] evidence.’”) (citation omitted).
A district judge 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.” 5 C WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed.
2004, 2011 Supp.). This discretion “should be exercised with great caution and attention to the
parties’ procedural rights.” Id. at 149. In general, courts are guided by whether consideration of
extraneous material “is likely to facilitate the disposition of the action,” and “whether discovery
prior to the utilization of the summary judgment procedure” is necessary. Id. at 165, 167.

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Ordinarily, summary judgment is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont De Nemours and Co. v. Kolon Industries,
Inc., 637 F.3d 435, 448-49 (4th Cir. 2012); see Putney v. Likin, 656 Fed. App’x 632, 638 (4th
Cir. 2016); McCray v. Maryland Dep’t of Transportation, 741 F.3d 480, 483 (4th Cir. 2015).
However, “the party opposing summary judgment ‘cannot complain that summary judgment was
granted without discovery unless that party has 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. 1996)). To raise adequately the issue that discovery is needed, the nonmovant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule
56(f)), explaining why, “for specified reasons, it cannot present facts essential to justify its
opposition,” without needed discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45
(discussing affidavit requirement of former Rule 56(f)).
“[T]o justify a denial of summary judgment on the grounds that additional discovery is
necessary, the facts identified in a Rule 56 affidavit must be ‘essential to [the] opposition.’”
Scott v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D. Md. 2011) (alteration in original)
(citation omitted). A non-moving party’s Rule 56(d) request for additional discovery is properly
denied “where the additional evidence sought for discovery would not have by itself created a
genuine issue of material fact sufficient to defeat summary judgment.” Strag v. Bd. of Trs.,
Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham, 437 F. Supp.
2d 414, 420 (D. Md. 2006), aff’d, 266 F. App’x. 274 (4th Cir.), cert. denied, 555 U.S. 885
(2008).

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If a non-moving party believes that further discovery is necessary before consideration of
summary judgment, the party fails to file a Rule 56(d) affidavit at his peril, because “‘the failure
to file an affidavit . . . is itself sufficient grounds to reject a claim that the opportunity for
discovery was inadequate.’” Harrods, 302 F.3d at 244 (citations omitted). But, the non-moving
party’s failure to file a Rule 56(d) affidavit cannot obligate a court to issue a summary judgment
ruling that is obviously premature. Although the Fourth Circuit has placed “‘great weight’” on
the Rule 56(d) affidavit, and has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and
the need for additional discovery in a memorandum of law in opposition to a motion for
summary judgment is not an adequate substitute for [an] affidavit,’” the appellate court has “not
always insisted” on a Rule 56(d) affidavit. Id. (internal citations omitted).
According to the Fourth Circuit, failure to file an affidavit may be excused “if the
nonmoving party has adequately informed the district court that the motion is premature and that
more discovery is necessary” and the “nonmoving party’s objections before the district court
‘served as the functional equivalent of an affidavit.’” Harrods, 302 F.3d at 244-45 (internal
citations omitted); see also Putney, 656 Fed. App’x at 638; Nader v. Blair, 549 F.3d 953, 961
(4th Cir. 2008). Moreover, “[t]his is especially true where, as here, the non-moving party is
proceeding pro se.” Putney, 656 Fed. App’x at 638.
Plaintiff has not filed an affidavit under Rule 56(d). Moreover, I am satisfied that it is
appropriate to address the defendants’ Motion as one for summary judgment, because it will
facilitate resolution of this case.
Summary judgment is governed by Fed. R. Civ. P. 56(a), which provides, in part: “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.” The Supreme Court

13

has clarified that this does not mean that any factual dispute will defeat the motion. “By its very
terms, this standard provides that the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986) (emphasis in original).
“The party opposing a properly supported motion for summary judgment ‘may not rest
upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts
showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)),
cert. denied, 541 U.S. 1042 (2004). The court should “view the evidence in the light most
favorable to . . . the nonmovant, and draw all inferences in her favor without weighing the
evidence or assessing the witness credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290
F.3d 639, 644-45 (4th Cir. 2002); see FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
The district court’s “function” is not “to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at
249. Moreover, the trial court may not make credibility determinations on summary judgment.
Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015);
Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007); Black & Decker Corp.
v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis, 290 F.3d at 644-45. Therefore, in
the face of conflicting evidence, such as competing affidavits, summary judgment is generally
not appropriate, because it is the function of the fact-finder to resolve factual disputes, including
matters of witness credibility.

14

Nevertheless, to defeat summary judgment, conflicting evidence, if any, must give rise to
a genuine dispute of material fact. See Anderson, 477 U.S. at 247-48. If “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party,” then a dispute of material
fact precludes summary judgment. Id. at 248; see Libertarian Party of Va. v. Judd, 718 F.3d
308, 313 (4th Cir. 2013). On the other hand, summary judgment is appropriate if the evidence
“is so one-sided that one party must prevail as a matter of law.” Id. at 252. And, “the mere
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff.” Id.
Because plaintiff is self-represented, his submissions are liberally construed.

See

Erickson v. Pardus, 551 U.S. 89, 94 (2007). But, the court must also abide by the “‘affirmative
obligation of the trial judge to prevent factually unsupported claims and defenses from
proceeding to trial.’” Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting
Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477
U.S. 317, 323–24 (1986)).
V.

Discussion

A. First Amendment and RLUIPA claims
“Lawful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considerations underlying our penal system.”
O'lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). However, with respect to the free
exercise of religion, prison inmates retain a right to reasonable opportunities for free exercise of
religious beliefs without concern for the possibility of punishment. See Cruz v. Beto, 405 U.S.
319, 322 (1972). Nevertheless, the right is not unfettered. Prison restrictions that impact on the

15

free exercise of religion but are related to legitimate penological objectives do not run afoul of
the Constitution. See Turner v. Safley, 482 U.S. 78, 89-91 (1987).
In relevant part, the Religious Land Use and Institutionalized Persons Act (“RLUIPA” or
the “Act”), 42 U.S.C. § 2000cc et seq., states:
No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution ..., even if the burden results
from a rule of general applicability, unless the government demonstrates that
the imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. §2000cc-1(a).
RLUIPA “protects institutionalized persons who are unable freely to attend to their
religious needs and are therefore dependent on the government's permission and accommodation
for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005); see Holt v.
Hobbs,____ U.S. ____, ____, 135 S.Ct. 853, 859–60 (2015); Smith v. Ozmint, 578 F.3d 246,
250 (4th Cir. 2009); Lovelace v. Lee, 472 F.3d 174, 186 (4th Cir. 2006). Enactment of RLUIPA
restored religious free exercise rights to prisoners, similar to those enjoyed by those who are not
incarcerated. See Cutter, 544 U.S. at 715-17.
The Act defines “religious exercise” as “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc–5(7)(A); Holt, 135
S.Ct. at 860; Smith. 578 F.3d at 251. A prison regulation imposes a substantial burden when it
places “substantial pressure on an adherent to modify his behavior and to violate his beliefs” or
“forces a person to choose between following the precepts of [his] religion and forfeiting

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governmental benefits, on the one hand, and abandoning one of the precepts of [his] religion . . .
on the other hand.” Lovelace, 472 F.3d at 187.
Under RLUIPA, the inmate initially must show that the challenged policy substantially
burdens his exercise of his religion. See 42 U.S.C. § 2000cc–2(b); Holt, 135 S.Ct. at 862. The
Act “prescribes a shifting burden of proof for inmate religious exercise claims.” Incumaa v.
Stirling, 791 F.3d 517, 525 (4th Cir. 2015). A prisoner must initially “demonstrate that the
prison’s policy exacts a substantial burden on religious exercise,” and then the burden “shifts to
the government to prove its policy furthers a compelling governmental interest by the least
restrictive means.” Id.
In other words, the test to determine if the restrictions are justified requires examination
of whether there is a rational relation between the asserted governmental interest and the
regulation in question. In addition, the court must examine whether there are alternative means
of exercising the right asserted; whether accommodation of the right will impact on the orderly
operations of the prison; and whether readily available alternatives to the regulation would be
less restrictive.
No substantial burden occurs if the government action merely makes the “religious
exercise more expensive or difficult,” but fails to pressure the adherent to violate his or her
religious beliefs or abandon one of the precepts of his or her religion. Living Water Church of
God v. Charter Twp. of Meridian, 258 F. App’x 729, 739 (6th Cir. 2007). In Incumaa, 791 F.3d
517, the prisoner plaintiff maintained that prison officials were requiring his renunciation of his
chosen religion in order to be reassigned to general population and no longer subjected to the
stricter, more harsh conditions of segregation. Evidence that prison officials allowed general
population prisoners to maintain their affiliation with the religious group and that the plaintiff

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was permitted to keep religious materials in his possession while segregated undermined his
claim that the goal of his segregated confinement was to force his renunciation. Id. at 526.
Here, plaintiff claims he was denied his request for a religious diet and thus was denied
his constitutional right to practice his religion. ECF 5. However, Tyler’s request for information
from Rolph confirming his professed faith does not amount to a constitutional violation. In
Cutter, the Supreme Court said, 544 U.S. at 725 n.13:
[[P]rison officials may appropriately question whether a prisoner's religiosity,
asserted as the basis for a requested accommodation, is authentic. Although
RLUIPA bars inquiry into whether a particular belief or practice is “central” to
a prisoner's religion, see 42 U.S.C. § 2000cc-5(7)(A), the Act does not
preclude inquiry into the sincerity of a prisoner's professed religiosity. Cf.
Gillette v. United States, 401 U.S. 437, 457 (1971) (“‘[T]he ‘truth’ of a belief
is not open to question’; rather, the question is whether the objector's beliefs
are ‘truly held.’” (quoting United States v. Seeger, 380 U.S. 163, 185 (1965)).
Such a requirement is particularly relevant in instances where, as here, the prisoner himself
has provided conflicting information regarding his faith and there is a five-fold increase in cost
to the institution to accommodate the request. Defendants are entitled to summary judgment in
their favor on this claim.
B. Claims Regarding Medical and Psychiatric Care
The constitutional protections afforded a pretrial detainee as provided by the Fourteenth
Amendment are coextensive with those provided by the Eighth Amendment. See Bell v. Wolfish,
441 U.S. 520, 535 (1979). “Due process rights of a pretrial detainee are at least as great as the
Eighth Amendment protections available to the convicted prisoner.” Hill v. Nicodemus, 979
F.2d 987, 991 (4th Cir. 1992) (citing Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988).
The Eighth Amendment prohibits “unnecessary and wanton infliction of pain” by virtue
of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173
(1976); see also Estelle v. Gamble, 429 U.S. 97, 102 (1976); Scinto v. Stansberry, 841 F.3d 219,
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225 (4th Cir. 2016); King v. Rubenstein, 825 F.3d 206, 218 (4th Cir. 2016). In order to state an
Eighth Amendment claim for denial of medical care, a plaintiff must demonstrate that the actions
of the defendants or their failure to act amounted to deliberate indifference to a serious medical
need. See Estelle, 429 U.S. at 106; Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014); Iko v.
Shreve, 535 F.3d 225, 241 (4th Cir. 2008). The Fourth Circuit has characterized the applicable
standard as an “exacting” one. Lightsey, 775 F.3d at 178.
Deliberate indifference to a serious medical need requires proof that, objectively, the
prisoner plaintiff was suffering from a serious medical need and that, subjectively, the prison
staff were aware of the need for medical attention but failed either to provide it or to ensure that
the needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); King, 825 F.3d
at 219; Cf. Heyer v. Boyd, ____ F.3d ____, No. 15-6826, slip op. at 13-14 (4th Cir. Feb. 13,
2017). Objectively, the medical condition at issue must be serious. See Hudson v. McMillian,
503 U.S. 1, 9 (1992) (there is no expectation that prisoners will be provided with unqualified
access to health care); Scinto, 841 F.3d at 225.
A “‘serious . . . medical need’” is “‘one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention.’” Iko, 535 F.3d at 241 (quoting Henderson v. Sheahan, 196
F.3d 839, 846 (7th Cir. 1999)); see Heyer v. Boyd, supra, slip op. at 14; Scinto, 841 F.3d at 228.
And, in a case involving a claim of deliberate indifference to a serious medical need, the inmate
must show a “significant injury.” Danser, 772 F.3d at 346 n.8.
Proof of an objectively serious medical condition does not end the inquiry. The subjective
component requires a determination as to whether the defendant acted with “a sufficiently
culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 298 (1991); see Farmer, 511 U.S. at 839-

19

40; Scinto, 841 F.3d at 225. In order “[t]o show an Eighth Amendment violation, it is not enough
that an official should have known of a risk; he or she must have had actual subjective
knowledge of both the inmate’s serious medical condition and the excessive risk posed by the
official’s action or inaction.” Lightsey, 775 F.3d at 178.
“True subjective recklessness requires knowledge both of the general risk, and also that
the conduct is inappropriate in light of that risk.” Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir.
1997); see also Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001). As the
Farmer Court explained, 511 U.S. at 837, reckless disregard occurs when a defendant “knows of
and disregards an excessive risk to inmate health or safety; the [defendant] 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 inference.” Thus, “[a]ctual knowledge or awareness on the part of the
alleged inflicter . . . becomes essential to proof of deliberate indifference ‘because prison
officials who lacked knowledge of a risk cannot be said to have inflicted punishment.’” Brice v.
Va. Beach Corr. Center, 58 F.3d 101, 105 (4th Cir. 1995) (quoting Farmer, 511 U.S. at 844).
Although the deliberate indifference standard “‘entails more than mere negligence . . . it
is satisfied by something less than acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.’” King, 825 F.3d at 219 (quoting Farmer, 511 U.S. at 835); see
Heyer v. Boyd, supra, slip op. at 17. A plaintiff can meet the subjective knowledge requirement
through direct evidence of a prison official’s actual knowledge or through circumstantial
evidence tending to establish such knowledge, including evidence “‘that a prison official knew of
a substantial risk from the very fact that the risk was obvious.’” Makdessi, 789 F.3d at 133
(quoting Farmer, 511 U.S. at 842).

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Moreover, if a risk is obvious, a prison official “cannot hide behind an excuse that he was
unaware of a risk, no matter how obvious.” Brice, 58 F.3d at 105. In Scinto, 841 F.3d at 226, the
Fourth Circuit said:
A plaintiff also makes out a prima facie case of deliberate indifference
when he demonstrates “that a substantial risk of [serious harm] was longstanding,
pervasive, well-documented, or expressly noted by prison officials in the past, and
the circumstances suggest that the defendant-official . . . had been exposed to
information concerning the risk and thus must have known about it . . . .” Parrish
ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (first alteration in
original) (internal quotation marks omitted) (quoting Farmer, 511 U.S. at 842).
Similarly, a prison official’s “[f]ailure to respond to an inmate’s known medical
needs raises an inference [of] deliberate indifference to those needs.” Miltier v.
Beorn, 896 F.2d 848, 853 (4th Cir. 1990), overruled in part on other grounds by
Farmer, 511 U.S. at 837.
Even if the requisite subjective knowledge is established, an official may still avoid
liability if he “responded reasonably to the risk, even if the harm was not ultimately averted.”
Farmer, 511 U.S. at 844; see Scinto, 841 F.3d at 226. Reasonableness of the actions taken must
be judged in light of the risk the defendant actually knew at the time. See Brown v. Harris, 240
F. 3d 383, 390 (4th Cir. 2000) (citing Liebe v. Norton, 157 F. 3d 574, 577 (8th Cir. 1998) (focus
must be on precautions actually taken in light of suicide risk, not those that could have been
taken)).
Notably, because deliberate indifference “is a higher standard for culpability than mere
negligence or even civil recklessness,” it follows that, “as a consequence, many acts or omissions
that would constitute medical malpractice will not rise to the level of deliberate indifference.”
Lightsey, 775 F.3d at 178; see also Scinto, 841 F.3d at 225; Russell v. Sheffer, 528 F.2d 318, 319
(4th Cir. 1975); Donlan v. Smith, 662 F. Supp. 352, 361 (D. Md. 1986). What the Court said in
Grayson v. Peed, 195 F.3d 692, 695- 96 (4th Cir. 1999), is also apt: “Deliberate indifference is a
very high standard – a showing of mere negligence will not meet it . . . [T]he Constitution is

21

designed to deal with deprivations of rights, not errors in judgments, even though such errors
may have unfortunate consequences . . . To lower this threshold would thrust federal courts into
the daily practices of local police departments.”
With regard to medical care providers, “any negligence or malpractice on the part of . . .
doctors in missing [a] diagnosis does not, by itself, support an inference of deliberate
indifference.” Johnson v. Quinones, 145 F.3d 164, 166 (4th Cir. 1998). Without evidence that a
doctor linked presence of symptoms with a diagnosis of a serious medical condition, the
subjective knowledge required for Eighth Amendment liability is not present. Id. at 169 (actions
inconsistent with an effort to hide a serious medical condition, refutes presence of doctor’s
subjective knowledge).
In essence, the treatment rendered must be so grossly incompetent or inadequate as to
shock the conscience or to be intolerable to fundamental fairness. Miltier v. Beorn, 896 F.2d 848,
851 (4th Cir. 1990) (citation omitted) (overruled in part on other grounds by Farmer, 511 U.S. at
837; aff’d in pertinent part by Sharpe v. S.C. Dep’t of Corr., 621 Fed. Appx. 732 (Mem) (4th Cir.
2015). And, the right to treatment is “limited to that which may be provided upon a reasonable
cost and time basis and the essential test is one of medical necessity and not simply that which
may be considered merely desirable.” Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977)
(emphasis added).
Thus, inmates and detainees do not have a constitutional right to the treatment of their
choice. Dean v. Coughlin, 804 F.2d 207, 215 (2nd Cir. 1986). And, mere disagreements as to
the need for or the appropriate extent of medical treatment do not give rise to a constitutional
injury. See Estelle, 429 U.S. at 105-06; Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985).

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With regard to plaintiff’s claims concerning medical care at BCDC, the undisputed
record establishes that each of plaintiff’s complaints were addressed in a timely manner. He was
treated for back pain, the infection in his nose, as well as the umbilical wound. See ECF 20-3
(Cosgrove Affidavit).

There is no evidence that either Tyler or Richardson knew of and

disregarded a serious medical condition or that they prevented plaintiff from receiving proper
care.
There is no underlying distinction between the right to medical care for physical ills and
its psychological and psychiatric counterpart. Bowring v. Goodwin, 551 F.2d 44, 47 (4th Cir.
1977). A prisoner is entitled to such treatment if a "[p]hysician or other health care provider,
exercising ordinary skill and care at the time of the observation, concludes with reasonable
certainty (1) that the prisoner's symptoms evidence a serious disease or injury; (2) that such
disease or injury is curable or may be substantially alleviated; and (3) that the potential for harm
to the prisoner by reason of delay or the denial of care would be substantial." Id. The Bowring
Court further concluded that the aforementioned right to such treatment is based upon the
essential test of medical necessity and not upon that care considered merely desirable. Id. at 48.
To the extent that plaintiff intended to raise a claim that he was denied proper care for
mental health issues, the undisputed record establishes otherwise. Plaintiff was placed into a
detox program when it was discovered that he was withdrawing from daily use of
benzodiazepines and he was provided with both a psychiatric evaluation and daily monitoring by
qualified staff. See ECF 20-3 (Cosgrove Affidavit). Again, there is no evidence that either of
the named defendants interfered in the care needed or knew of additional care that was required
and somehow refused to make it available.
C. Conditions of Confinement

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The inquiry with respect to the conditions of confinement is whether those conditions
amount to punishment of the pretrial detainee, because due process proscribes punishment of a
detainee before proper adjudication of guilt.

Bell v. Wolfish, 441 U.S. 520, 535 (1979).

However, “not every inconvenience that is encountered during pre-trial detention amounts to
‘punishment’ in the constitutional sense.” Martin v. Gentile, supra, 849 F.2d at 870 (citing Bell,
441 U.S. at 538-40).
A particular restriction or condition of confinement amounts to unconstitutional
punishment in violation of the Fourteenth Amendment if it is imposed by prison officials with
the express intent to punish or it is not reasonably related to a legitimate, non-punitive goal. Bell,
441 U.S. at 538-39 (restrictions or conditions that are arbitrary or purposeless may be considered
punishment). In determining whether the challenged conditions amount to punishment, it is not
the province of this court to determine how a particular prison might be more beneficently
operated; the expertise of prison officials must be given its due deference. See Sandin v. Conner,
515 U.S. 472, 482-83 (1995). “[A]bsent intentionality, a condition imposed on an inmate cannot
properly be called ‘punishment,’ and absent severity, such punishment cannot be called ‘cruel
and unusual.’” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Wilson v. Seiter, 501 U.S.
294, 298-300 (1991)).
To establish a sufficiently culpable state of mind, there must be evidence that a known
excessive risk of harm to the inmate’s health or safety was disregarded. See Wilson, 501 U.S. at
298-99. In other words, “‘the test is whether the guards know the plaintiff inmate faces a serious
danger to his safety and they could avert the danger easily yet they fail to do so.’” Brown v. N.C.
Dep’t of Corr., 612 F.3d 720, 723 (4th Cir. 2010) (quoting Case v. Ahitow, 301 F.3d 605, 607
(7th Cir. 2002)).

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Plaintiff asserts that he was forced to live in an environment that exacerbated his posttraumatic stress disorder due to the noise on the housing unit where he was assigned; he was
forced to go without food; and his back pain was exacerbated because he was forced to sleep on
a mattress on the floor. ECF 5. With respect to plaintiff’s assignment to the mental health unit
where he claims the noise was intolerable, there is no evidence that the noise level would have
differed greatly in any other part of the detention center. Plaintiff’s assertion that he was found
“100% competent” by a doctor at Spring Grove, and his contradictory assertion that he should
not have been removed from Spring Grove given his mental state, illustrates the difficulty the
defendants faced in attempting to address adequately plaintiff’s claimed needs.
“In formulating and executing decisions relating to cell assignments, we must allow
prison authorities the discretion to take into account the particular safety and security concerns
facing male inmates, even though such considerations result in disparate treatment based upon
gender.” Veney v. Wyche, 293 F.3d 726, 734 (4th Cir. 2002). Clearly, assignment of plaintiff to
the mental health ward, given his history of recent hospitalization at Spring Grove and his need
for anti-psychotic medications, were a priority over his concerns regarding the noise in that unit.
With respect to plaintiff’s claim that he was forced to go without food, the record
evidence absolutely refutes that claim. There is no evidence that plaintiff held a sincere religious
belief requiring adherence to a kosher diet, nor is there any evidence that plaintiff could not eat
the institutionally prepared food due to his claimed food allergies. To the contrary, there is
evidence that plaintiff himself did not restrict his diet to kosher food or food that did not contain
his claimed allergens when he bought food items at the detention center’s commissary.
Finally, plaintiff’s claim that his back pain required his assignment to a lower bunk rather
than providing him with a mattress to be used on the floor is without any evidence to support it.

25

Plaintiff fails to allege any facts that differentiate between those two assignments and how one
would have been more beneficial to his back condition, nor is there any objective medical
evidence to support a finding that he was injured as a result. See ECF 20-3 at p. 4, ¶15 (x-ray
results). The discomfort plaintiff suffered is within the normal range of that experienced as a
result of any inmate’s incarceration and is not actionable.

VI.

Conclusion

Defendants are entitled to summary judgment on all of the claims raised because there is
no evidence to sustain plaintiff’s allegations. As such, this court need not reach defendants’
defense of qualified immunity.
An Order follows.

February 28, 2017
Date

________/s/____________________
Ellen L. Hollander
United States District Judge

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