Hargett v. Armstead et al

Filing 27

MEMORANDUM. Signed by Judge J. Frederick Motz on 8/10/2017. (c/m 8/10/2017 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KIM L. HARGETT. SR.,

*

Plaintiff

*

v

*

L. ARMSTEAD, et al.,

*

Civil Action No. JFM-16-1739

*
***

Defendants

MEMORANDUM
Pending are motions to dismiss, or, in the alternative, for summary judgment filed by
defendants

Commissioner

of Correction

Dayena Corcoran,

Warden Laura Armstead,

and

Chantell Sessions, ("correctional defendants") (ECF 11) and by Wexford Health Sources, Inc.,
("Wexford"),

Andrew Moultrie, M.D., and Oladipo Olaleye, R.N.P.l ("medical defendants").

ECF 14. Plaintiff has filed an opposition (ECF 222) to which defendants have replied. ECF 23 &
24. The court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2016).
For the reasons that follow, defendants' motions, construed as motions for summary judgment,
shall be granted.
Background
A.

Complaint Allegations
Plaintiff Kim L. Hargett, Sr., a state inmate confined at the Patuxent Institution in Jessup,

Maryland, filed the instant verified complaint on May 31, 2016. ECF 1, p. 1. He alleged that in
June of2015, he began to feel pain in his right calf and knee. ECF 1, p. 2. He submitted a sick
call slip and was seen by Oladipo Olaleye, RN.P. who prescribed Motrin for pain relief. Id. He

I

The Clerk shall amend the docket to reflect the full and complete names of defendants.

Plaintiffs complaints regarding his post-surgery care, raised for the first time in his opposition response, are not
properly before the court and shall not be considered.

2

was again seen by Oleleye in July of 2015. At that time he was advised that there was nothing
Olaleye could do for him and he should talk to Dr. Moultrie. Id. Moultrie asked plaintiff who
sent him to his office and conferred with Olaleye, who then advised plaintiff there was nothing
they could do. Id.
Plaintiff

wrote an administrative

remedy complaint

("ARP")

in August of 2015,

concerning the pain in his right knee and calf, but the ARP was denied. ECF 1, p. 3.
Moultrie evaluated plaintiff in September of 2015 during a chronic care visit. Plaintiff
explained that he was in excruciating pain and Moultrie suggested plaintiff undergo an x-ray. Id.
On September 24, 2015, plaintiff was called to see Moultrie. Plaintiff inquired about the x-ray to
which Moultrie did not respond. Plaintiff states that he let Moultrie know he was upset and still
needed an x-ray. Moultrie then got upset and plaintiff was placed on administrative segregation.
Id., p. 3. Plaintiff states that he was subsequently found not-guilty at the ensuing adjustment
hearing. Id.
In November of 2015, plaintiff received the x-ray which showed a bullet lodged in the
back of plaintiff s right knee. Id. Plaintiff was seen by a general surgeon in December of 2015
who suggested that plaintiff see a neurosurgeon. Id. Plaintiff saw the neurosurgeon on January
19, 2016. The neurosurgeon suggested plaintiff undergo a CT scan to determine the bullet's
location to develop a plan to remove it. Id. As of the filing of plaintiff s complaint he had not
received the CT scan. Id.
On March 4, 2016, plaintiff was called to the chronic care clinic where Moultrie advised
he would receive a Telemedicine appointment. Id. At the time of the filing of the complaint that
had not occurred. Plaintiff reported that he was in excruciating pain. !d.

2

Plaintiff sought compensatory and punitive damages as well as injunctive relief directing
the removal of the bullet fragment from his knee.

As indicated below, the bullet has been

surgically removed and as such, plaintiff s request for injunctive relief is moot. 3
B.

Medical defendants
Medical defendants offer plaintiff s pertinent medical records as well as an affidavit from

Dr. Temesgen in support of their motion.

ECF 14-4 (medical records); ECF 14-5 (Temesgen

affidavit).
The undisputed records demonstrate that plaintiff has a medical history of chronic pain
syndrome, muscle spasm and osteoarthritis of the knees. ECF 4-4.
Plaintiff was seen on June 1,2015, by Almon Baptiste, LPN, for a chronic care visit. Id.,
p. 2. Plaintiff denied any chronic pain since his last encounter. Id. That same day he was seen by
Andrew Moultrie, M.D. !d., pp. 3-4. Moultrie noted that plaintiff suffered from chronic left
shoulder pain that was helped with Neurontin.

Id. Examination showed left shoulder pain with

and without palpation. Mild tenderness of the cervical spine was also noted. Id. Plaintiffs

non-

formulary prescription for Neurontin was renewed. Id. p. 5.
On June 24, 2015, plaintiff was seen for an urgent provider visit due to a cut on his hand.
Id., p. 6. The cut had minimal bleeding and plaintiff requested a band -aid. He otherwise denied
any pain. Id.
Oladipo Olaleye, R.N.P., evaluated plaintiff on July 29,2015, for a provider sick call. Id.,
p. 7. At that time plaintiff reported pain to the right leg and calf. He stated that the pain began
six months earlier and was increasing in intensity. Id. He also reported more pain at rest and in
the calf area. No swelling, warmth or redness were observed. It was noted that he had good +2
Where injunctive or declaratory relief is requested in an inmate's complaint, it is possible for events occurring
subsequent to the filing of the complaint to render the matter moot. See Williams v. Griffin, 952 F.2d 820, 823 (4th
Cir. 1991) (transfer of prisoner moots his Eighth Amendment claims for injunctive and declaratory relief).

3

3

pedal pulses to dorsalis pedis and posterior tibial and popliteal pulse. Plaintiff was advised that
the pain was possibly nerve pain. Plaintiff disagreed, advising he had circulation problems and
wanted to be treated.

It was noted that plaintiff had been non-compliant with his Neurontin

prescription and was advised to take the medication as prescribed.
joint deformities

were observed. Plaintiffs

No skeletal tenderness or

extremities appeared normal and no edema or

cyanosis was noted. Id.
Plaintiff was again seen by Olaleye on August 8, 2015, at sick call. Id., pp. 9-11. Plaintiff
continued to complain of pain in the left calf that had started two weeks earlier and offered that
he thought he had peripheral artery disease ("PAD"). Plaintiff reported that the pain was worse at
rest. No swelling, redness, or skin discoloration was observed.

Good +2 pedal pulses were

noted. There were no signs of arterial or venous disorders. Plaintiff was advised to take
Neurontin consistently

every 12 hours. Plaintiff refused and it was noted that his records

indicated he had been noncompliant with his pain medication in the past. Olaleye discussed
plaintiff s condition with the onsite physician. !d.
On August 28, 2015, plaintiff was seen by Khadijat Adebayi, R.N. for complaints of
chest paint. Id., pp. 12-13. Plaintiff reported throbbing pain in the chest diagonally from the midupper shoulder to the sternum.

The pain was described as non-radiating and 5 on a 10 point

scale. He was observed in no acute distress. His chest was clear to auscultation and his heart rate
was regular and sounded normal. No edema was observed. Dr. Singh was notified and it was
determined that emergency services were not necessary. Id.
Plaintiff was evaluated by Almon Baptiste, L.P.N. for a nurse chronic care visit on
September 1, 2015. He reported no symptoms relative to his chronic pain or medication. !d., p.
14. On September 3,2015, plaintiffs prescription for Neurontin was renewed. Id., p. 15.

4

Moultrie evaluated plaintiff on September 24, 2015, for follow-up of right knee, hip and
ankle pain. Id. pp. 16-17. Plaintiff reported that his prescribed medications

did not work;

however, the Neurontin was helping his lower left extremity pain. Id. Plaintiff's prescription was
changed from an NSAID to Mobic and a muscle relaxer was also prescribed. Id. Moultrie placed
an order for x-rays of the knee and hip. Id.
Plaintiff's x-rays were delivered to medical staff on November 4, 2015. Id., p. 18. Mild
degenerative changes were noted bilaterally in the hip joints. Bullet fragments were present on
the posterior aspect of the right knee. !d. No acute fractures, dislocations or subluxations were

observed.ld.
On November 10,2015, plaintiff was seen by Olaleye at provider sick call. Id., pp. 19-20.
He reported pain in the right lower leg of 7/10 and advised that he did not want any more
medication but wanted the bullet removed. Id. Olaleye advised plaintiff that this condition would
be discussed with his provider to determine a plan of action. Olaleye recommended plaintiff be
referred to the onsite surgeon for evaluation and the consultation request was placed. Id., p. 21.
Plaintiff was again seen by Olaleye on November

17, 2015. !d., pp. 22-23. Plaintiff

inquired as to the plan for removing the bullet fragments and reported that he did not want any
more pain medication. Id. The LPN/RN

indicated plaintiff might be acting for secondary gain as

he had been observed running quickly up two staircases going down, but limping back up. Id.
Plaintiff was advised that the consultation request had been placed for a surgery evaluation and
he needed to wait for the evaluation before any further plans would be made. Id.
On November 25, 2015, plaintiff failed to appear of his morning medication. Id., p. 24.
From November 25,2015 to April 27, 2016, plaintiff failed to appear for his morning medication
on 44 occasions. ECF 14-4, pp, 24, 25, 27, 28, 30, 35, 38-41, 44, 49-55, 61, 62, 67, 68, 79-82,

5

/
86-93. He also failed to appear for evening medications on a number of occasions. Id., pp. 25,
45.
Plaintiff was seen on November 30,2015, by Patience Muson, L.P.N. for a chronic care
visit. Id., p. 29. He reported no chronic pain symptoms or complications with medications. /d.
The following day plaintiff was seen by Moultrie in the chronic care clinic for pain in the
{/

left foot and right knee. /d., pp. 31-34. Plaintiff reported that the medijltion helped the left foot
pain but not the right knee pain. He complained of cramping in the right leg and stated that he
wanted the bullet fragments behind the right knee removed if possible. Id. Plaintiff was advised
that he was being referred to the general surgeon for evaluation as to whether than extraction was
indicated.

Id. Plaintiffs

NSAID

prescription

was changed

to Lodine

and his Robaxin

prescription was increased to help with pain relief. Id. No tenderness to palpation of the right
lower extremity inferiolateral popliteal area was noted. No edema, erythema, or masses were
observed. Id.
On December 3, 2015, plaintiff was seen via telemed conference by Olaleye, Moultrie,
and the regional medical director Kasahun Temesgen, M.D. Id., p. 36. Plaintiff was approved for
surgical evaluation and was referred to be seen by Mohammad Saleem, M.D. upon the doctor's
return from vacation. Id., p. 37.
Plaintiff was seen by Olaleye at a provider sick call on December 15, 2015. Id., pp. 4243. At that time, plaintiff reported that he bullet fragments had been there for 23 years. Id. He
was advised that he was approved to have a surgery evaluation when the surgeon returned from
vacation. He was again educated on the need to be compliant with his pain medication and it was
again noted that he was frequently non-compliant. Id.

6

Plaintiff was evaluated by Dr. Saleem on December 23,2015. !d., pp. 46-47. It was noted
that plaintiff had restricted movement in his right knee. The knee was mildly tender and no
superficial bullet was palpable. Id. Plaintiff was referred to orthopedics for further evaluation.
Id., pp. 46-48.
On January 18,2016, plaintiff was seen by RNP Olaleye at provider sick call. Id., pp. 5657.

Plaintiffs

history of bullet fragments in the right knee for 21 years was noted. It was

observed that plaintiff had pain with range of motion in the right knee. No swelling was noted.
His non-compliance with his Robaxin and Etodolac medications was also discussed and plaintiff
agreed to have these medications discontinued. Id. Olaleye emailed the scheduler to follow-up
on plaintiffs evaluation with orthopedics. Id.
The following day, plaintiff was seen by Lawrence A. Manning, M.D. for an onsite
orthopedic consultation. Id., p. 58. Plaintiff reported he suffered a gunshot wound 21 years ago.
He stated he had pain in the entire right thigh and leg a year ago. Indocin, Mobic and Robaxin
did not help his pain. He reported pain primarily in the right knee. Id. Examination showed a
well-developed,

well nourished, male in no acute distress. He ambulated without an assistive

device but with a limp. Plaintiff had a full range of movement in the right knee. No effusion of
the knee, ligamentous instability, ortendemess

was observed. Id. Review of the right knee x-ray

showed a bullet in the popliteal space just lateral to the midline. Manning suggested a CT scan of
the right knee in order to evaluate the position of the bullet in relation to the knee capsule and
neurovascular

structures. Id. He suggested discontinuing plaintiffs

Indocin prescription

and

starting Mobic 7.5 mg every day after meals for two weeks; and if no improvement to increase
the Mobic to 15 mg every day after meals Id. Manning suggested plaintiff return to him after the

7

CT results were available. A radial x-ray of the right knee with one/two views was also ordered.
Id.
The x-rays were taken on January 20, 2016, and showed a posterior bullet fragment. Id.,
p. 59. No evidence of an acute fracture, dislocation, or subluxation was noted. Id. Narrowing of
the medial compartmental joint space with tibial peaking and marginal osteophytes was also
observed.

The radiologist's

impression

was that there was no acute disease with some

degenerative joint disease. Id.
On February 11,2016, plaintiff was seen by Olaleye at provider sick call for follow up
regarding his knee pain. Id., pp. 63-64. It was noted that the orthopedist recommended a CT scan
and a consultation request was placed. Id., p. 65. A non-formulary request for 7.5 mg of Mobic
was also placed and approved. Id., p. 66.
Plaintiff was evaluated by Moultrie on March 4, 2016, during a provider chronic care
visit. Id., pp. 70-72. Plaintiff reported receiving some relief from taking 7.5 mg of Mobic. Id. The
Mobic dose was increased to 15 mg daily and Neurontin was continued. Id., pp. 73-74.
A note was entered on March 6, 2016, that the recommendation

for a CT scan of

plaintiff s right knee was submitted to the regional medical director for review by plaintiff s
collegial team. Id., p. 75.
Plaintiff was provided a knee brace on March 9,2016. Id., p. 76.
On March 22, 2016, plaintiff reported during a provider sick call that his pain medication
as ineffective and requested stronger medication. /d., pp. 77-78. It was determined by Emmanuel
Esianor, P.A. that plaintiff was on adequate medication and was referred to the chronic care
physician. Id.

8

Plaintiff failed to appear for a nurse practitioner sick call on April 12, 2016. Id., p. 83.
Two days later plaintiff was seen by Olaleye at provider sick call. Id., p. 84. He inquired as to
when he would get a CT scan. Olaleye emailed the regional medical director to review the case.
Id.
Plaintiff was agam seen by Olaleye on April 29, 2016. Id., pp. 94-95. Plaintiffs
continued non-compliance

with medication was discussed. Plaintiff was informed that the

regional medical director was to review the recommendation for a CT scan in the next week and
that the CT scan was not yet approved. Id. Plaintiff became irate, shouted and threatened
Olaleye. Id.
On May 23, 2016, plaintiff as seen by Moultrie at chronic care clinic. Id., pp. 97-98. He
reported that his pain was not helped by Mobic. Plaintiffs prescription was changed to Salsalate.
Id. Plaintiff expressed concern that the CT scan had not been approved and Moultrie advised that
he would bring the CT recommendation to the regional medical director's attention.
also discussed with plaintiff using Cymbalta for pain relief. Id. Plaintiffs

Moultrie

prescription

for

Neurontin was renewed. Id., pp. 99-100.
The regional medical director reviewed plaintiffs
Id., pp. 101-102. It was recommended that plaintiffs

right knee condition on June 9, 2016.

pain medications be changed to Naproxen

and Elavil. Id. Plaintiff was approved to have the bullet fragments surgically removed and he
was educated regarding use of the knee brace. /d. A consultation request for surgery with Dr.
Hannah was placed. Id., p. 103.
On July 7, 2016, plaintiff was seen by Olaleye. Id., p. 105. He inquired as to the next
steps after his interview with Dr. Hannah.

Olaleye advised plaintiff he would email the

9

scheduler to determine which surgeon would perform the surgery. Id. A request for a CT scan,
which Dr. Hannah, had requested on June 30, 2016, was placed. Id., p. 106.
The results of the CT scan were received on August 1, 2016. Id., p. 107. The scan
showed a metallic foreign body consistent with an intact bullet located in the posterior soft
tissues. Id. The bullet was in fatty tissue adjacent to the lateral aspect of the semimembranosus
muscle, proximal 1.5 cm from the posterior skin. Id. The biceps femoris muscle was noted as
further lateral with the peroneal nerve and the tibial nerve deeper and lateral to the bullet. Id. The
results of the CT scan were reviewed by Olaleye with plaintiff on August 15,2016. Id., p. 110. A
consultation request for surgical removal of the bullet was placed on August 11, 2016. Id., p.
109.
Plaintiff underwent a pre-operation physical on August 16, 2016, and was cleared for
surgery by Olaleye. Id. pp. 111-112. Surgery was performed on August 18,2016, at Bon Secours
Hospital to remove the bullet behind the right knee. Id., pp. 113-118.
reported the bullet was located and removed.

Dr. Krishnaswamy

The wound was irrigated with saline solution,

sutures were applied, and the skin stabled. Id.
After surgery, plaintiff was transferred to the Jessup Regional Infirmary for postoperative care. Id., p. 119. An ace wrap dressing was applied the right knee and plaintiff was
able to ambulate with crutches. His knee was elevated and ice applied. The dressing was to be
changed every 3 days. Id. Plaintiff remained in the infirmary for skilled nursing care until August
24,2016. Id., pp. 120-126.
Plaintiff was discharged from the infirmary on August 24,2016, and returned to Patuxent
Institution where he was evaluated by Moultrie. Id., pp. 127-128. Plaintiff reported changing his

10

dressing the night before. He also reported he was in pain form the surgery but was otherwise in
stable condition. He reported walking long distances was an issue. Id.
Regional Medical Director Kasahun Temesgen,

M.D. avers that plaintiffs

medical

condition was carefully evaluated by health care providers and plaintiff was evaluated by two
separate surgeons regarding the bullet lodged in his knee. ECF 14-5, ~ 6. Temesgen avers that
the surgeons recommended

a CT scan if surgery was to be performed but it was not clear

whether surgery was necessary as plaintiff had the bullet in his leg for over two decades without
apparent complaint. Id.
Temesgen further avers that plaintiff was frequently non-compliant with pain medication
which interfered with the effectiveness of the medication and cast bout whether plaintiffs
reported knee pain was real or was for secondary gain. Id. Additionally, plaintiff had been seen
by medical staff ambulating without indication of pain. Id.
Temesgen states that foreign objects located in the body can move over time due to the
body's movements or muscle motion and may irritate nerves or damage vessels.

Id., ~ 7. He

avers that sometimes the body encloses bullets around a small cavity and forms a harmless
granuloma. Id. Rarely, the bullet may corrode and release metal ions which may cause allergic
reaction or poisoning. Id.
Ultimately, plaintiffs

condition was evaluated by medical staff in collegial review and

Temesgen made the decision that the bullet should be surgically removed, which occurred. Id., p.
~ 8. Temesgen avers that in his opinion, to a reasonable degree of medical probability, plaintiff
received appropriate treatment of his right knee pain and removal of the bullet. Id., ~ 8. Plaintiff
continues to be seen regularly in the chronic care clinic and to have access to medical staff. Id.
C.

Correctional Defendants

11

Sharon Baucom, M.D., Director of Clinical Services for the Maryland Department of
Public Safety and Correctional Services ("DPSCS) avers that she does not practice medicine or
provide direct medical care to Division of Correction ("DOC") inmates. ECF 11-2, ~ 1. The State
of Maryland through DPSCS has contracted with Wexford to provide direct health care services
and utilization management for inmates. Id., ~ 3. Baucom avers that DPSCS's

Secretary and

Wardens have no personal involvement in the provision of medical care to any Maryland inmate.
!d., ~ 5. Moreover they have not authority to make decisions concerning any inmate's medical
care. !d. Baucom has no supervisory authority over private medical contractor's staff. Id. ~ 6.
Request for special off-site consultations

are made by Wexford's

Medical Director

independent of DPSCS. Id., ~ 9. If a request is not approved and is appealed, Wexford would
request

Baucom

as DPSCS's

Chief

Medical

Officer

review

the

case

and

make

a

recommendation, which would be final, regarding the conflict. Id.
ARP requests concerning allegations of inadequate medical care are referred to an
employee of Wexford to conduct an investigation and make a recommendation. Id., ~ 14. If the
inmate appeals the decision at the facility level the ARP appeal is reviewed by a masters or
equivalent

experience

level nurse from the Office of Inmate Health Services, a DPSCS

employee. Id. Baucom does not personally review ARPs.

Wardens are expected to rely upon

the reports, assessments, and judgment of the medical site contractor's

trained staff in their

response to the ARP. Id.
Warden Armstead avers that she has no authority make decisions concerning
inmate's medical care to order the contractor's

any

medical staff to take any particular medical

action. ECF 11-3, ~ 4. When responding to an inmate's complaint regarding medical care,

12

Armstead and her staff rely upon the reports, assessments and judgment of the contractor's
trained medical staff to prepare any responses. Id.
Plaintiff filed an ARP (PATX 1075-15) complaining that a bullet had been found in his
right knee and was trying to find out when it would be removed. ECF 11-4, pp. 13-24. After an
investigation, Armstead responded on December 30, 2015, advising plaintiff that he had been
seen by medical and was approved for a surgical evaluation. Id., p. 14. He was advised he could
submit a sick call slip. Id.
Plaintiff filed an appeal to headquarters. !d., pp. 3-12. The investigation was assigned to
the Office of Inmate Health Services. Id., p. 12. Sessions advised plaintiff of the 15 day
extension of time for the Commissioner to respond to the appeal. Id. p. 11. Investigation showed
plaintiff had been evaluated by medical and that x-rays showed plaintiff did not have an acute
problem. Id., p. 9. Medication was ordered for pain and inflammation management and it was
noted that plaintiff had been non-compliant with the taking of medications.

A CT scan of

plaintiff s knee had been ordered to evaluate the position of the bullet. Plaintiff was advised to
continue to work with medical.

P.A. Moore, the Commissioner's

designee responded to the

complaint. Moore found that he appeal was meritorious in part in that the Warden did not adhere
to the established time frame for providing a response to the ARP. Id., p. 5.
Sessions avers that she had no personal involvement in the provision of medical care to
any inmate and has no authority to make decisions concerning any inmate's medical care. ECF
11-5, ~ 4. She avers that she did not interfere with, hinder, or delay, medical treatment or care to
plaintiff. Id.
Standard of Review
A.

Motion to Dismiss

13

The purpose of a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the
sufficiency of the plaintiff s Complaint.
(4th Cir. 1999).

See Edwards v. City of Goldsboro, 178 F.3d 231, 243

The dismissal for failure to state a claim upon which relief may be granted does

not require Defendant to establish "beyond doubt" that plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. See Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 561 (2007). Once a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint. Id. at 563. The court need not,
however, accept unsupported legal allegations, see Revene v. Charles County Comm'rs, 882 F.2d
870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, see Papasan v. Allain,
478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual
events, see United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
B.

Motion for Summary Judgment
Summary Judgment is governed by Fed. R. Civ. P. 56(a) which provides that:
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 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.,
14

346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). 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). The court
must, however, 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)).
In Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) the Supreme Court

explained that in considering a motion for summary judgment, the "judge's function is not
himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial."

A dispute about a material fact is genuine "if the evidence is

such that a reasonable jury could return a verdict for the nonmoviI).g party." Id. at 248. Thus,
"the judge must ask himself not whether he thinks the evidence unmistakably favors one side or
the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the
evidence presented." Id. at 252.
The moving party bears the burden of showing that there is no genuine issue as to any
material fact. No genuine issue of material fact exists if the nonmoving party fails to make a
sufficient showing on an essential element of his or her case as to which he or she would have
the burden of proof.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, on

those issues on which the nonmoving party has the burden of proof, it is his or her responsibility
to confront the summary judgment motion with an affidavit or other similar evidence showing
that there is a genuine issue for trial.

15

Analysis
A.

Supervisory Liability
To the extent plaintiff intended to hold correctional defendants and Wexford liable as

supervisors, his claim fails. It is well established that the doctrine of respondeat superior does
not apply in

9

1983 claims.

See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no

respondeat superior liability under
ordinary principles

S

1983). Liability of supervisory officials "is not based on

of respondeat superior, but rather is premised

on 'a recognition

that

supervisory indifference or tacit authorization of subordinates' misconduct may be a causative
factor in the constitutional injuries they inflict on those committed to their care.'"

Baynard v.

Malone, 268 F.3d 228,235 (4th Cir. 2001) (quoting Slakan v. Porter, 737 F.2d 368,372 (4th Cir.
1984)).
Supervisory

liability under

S

1983 must be supported with evidence that: (1) the

supervisor had actual or constructive knowledge that his subordinate was engaged in conduct
that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff;
(2) the supervisor's

response to the knowledge

was so inadequate

as to show deliberate

indifference to or tacit authorization of the alleged offensive practices; and (3) there was an
affirmative causal link between the supervisor's inaction and the particular constitutional injury
suffered by the plaintiff. See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Where, as here,
a plaintiff points to no action or inaction on the part of supervisory defendants that resulted in a
constitutional injury, the claims against supervisory personnel must be dismissed.
B.

Medical care
The Eighth Amendment prohibits "unnecessary and wanton infliction of pain" by virtue

of its guarantee against cruel and unusual punishment.
(1976).

Gregg v. Georgia, 428 U.S. 153, 173

"Scrutiny under the Eighth Amendment is not limited to those punishments authorized
16

by statute and imposed by a criminal judgment."

De'Lonta v. Angelone, 330 F. 3d 630, 633 (4th

Cir. 2003) citing Wilson v. Seiter, 501 U.S.294, 297 (1991). 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 v. Gamble, 429 U.S. 97, 106 (1976). "Deliberate indifference is a very high standard
- a showing of mere negligence will not meet it. ...

[Tlhe Constitution is 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."

Grayson v. Peed, 195 F.3d 692,695- 96 (4th Cir. 1999).

Deliberate indifference to a serious medical need requires proof that, objectively, the
plaintiff was suffering from a serious medical need and that, subjectively, the prison staff were
aware of the need for medical attention but failed to either provide it or ensure the needed care
was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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).

Proof of an

objectively serious medical condition, however, does not end the inquiry.
The subjective component requires "subjective recklessness" in the face of the serious
medical condition. See Farmer, 511 U.S. at 839- 40.

"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).

"Actual 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. Virginia Beach Correctional Center, 58 F. 3d 101, 105 (4th Cir. 1995)

17

quoting Farmer 511 U.S. at 844. If the requisite subjective knowledge is established, an official
may avoid liability "if [he] responded reasonably to the risk, even if the harm was not ultimately
averted. See Farmer, 511 U.S. at 844. 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).
"[A]ny 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,

Amendment liability is not present.

the subjective

knowledge

required

for Eighth

!d. 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). "Deliberate indifference may be demonstrated by either
actual intent or reckless disregard." Miltier, 896 F.2d at 851. 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." Farmer v. Brennan, 511 U. S. 825, 837
(1994). Thus, a health care provider must have actual knowledge of a serious condition, not just
knowledge of the symptoms. Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir. 1998). Mere
negligence or malpractice does not rise to a constitutional level. Russell v. Sheffer, 528 F.2d 318,
319 (4th Cir. 1975); Donlan v. Smith, 662 F. Supp. 352,361 (D. Md. 1986).

18

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).

The

record evidence indicates that plaintiff s requests were considered and her needs were addressed.
The fact that every request for medical tests was not approved does not reflect deliberate
indifference.

To the extent some of plaintiffs

complaints

have gone unaddressed,

"an

inadvertent failure to provide adequate medical care does not amount to deliberate indifference."
Estelle v. Gamble, 429 U.S. 97, 105 (1976). Plaintiffs

grievances with the medical decisions

made regarding what tests and treatments are necessary in light of the symptoms presented are
reflective of his frustration, but "[d]isagreements between an inmate and a physician over the
inmate's proper medical care do not state a
alleged."

S

1983 claim unless exceptional circumstances are

Wright v. Collins, 766 F.2d 841, 849(4th Cir. 1985), citing Gittlemacker v. Prasse, 428

F.2d 1, 6 (3rd Cir.1970). There are no exceptional circumstances alleged in this case.
Plaintiff first complained of knee pain in July of 2015. The bullet which had then been
lodged in plaintiffs
Thereafter,
medications
management.

plaintiff

knee for over 20 years was first identified by x-ray in November of 2015.
was seen regularly

by onsite medical

staff. He was provided

which were adjusted regularly based upon plaintiffs

representation

pain

of pain

Despite the efforts to provide pain relief and plaintiff s complaints, he was

regularly non-compliant with taking pain medication. Plaintiff was provided a knee brace. He
was evaluated by surgical and orthopedic specialist providers.

A CT scan and additional x-rays

were taken. He was approved for surgical removal of the bullet which occurred in August 2016-thirteen months after he first complained of knee pain and nine months after discovery of the
bullet in his knee. After the discovery of the bullet,

19

plaintiff was monitored and additional

diagnostic testing and referral to specialists was undertaken to determine whether the bullet
required removal.

Plaintiff s claim is nothing more than disagreement

with the medical

providers' assessment of the urgency of his care. The nine month delay while plaintiff underwent
additional diagnostic procedures and consultations before surgery occurred does not demonstrate
a deliberate indifference to plaintiff s serious medical needs.
delay in medical treatment rose to a constitutional

An "inmate who complains that

violation must place verifying medical

evidence in the record to establish the detrimental effect of delay in medical treatment."

Hill v.

DeKalb Regional Youth Detention Center, 40 F. 3d 1176, 1188 (lIth Cir. 1994). Plaintiff has
failed to allege, must less evidence of any detrimental effect occasioned by the alleged delay.
Plaintiff s mere disagreement with the speed in which his medical providers acted is insufficient
to demonstrate deliberate indifference. See Wright, 766 F.2d at 849.
To the extent plaintiff complains that he was prescribed various medications and treated
like a "lab rat" (ECF 22), his claim also fails. Efforts of plaintiffs

medical providers to adjust

his medication to provide pain relief refutes plaintiff s claim of deliberate indifference.
undisputed

The

record evidence demonstrates that medical provides made good faith efforts to

properly treat plaintiffs condition. They are entitled to summary judgment.
The complaint does not allege any personal participation by correctional defendants in
regard to the alleged denial of medical care. Liability under
participation by a defendant in the constitutional violation.
(4th Cir. 2001).

S

1983 attaches only upon personal

Trulock v. Freeh, 275 F.3d 391, 402

Other than being named in the caption of the complaint, the correctional

defendants are not mentioned anywhere in the factual allegations in regard to the denial of
medical care. Plaintiff does not attribute any action or inaction to any of the named correctional
defendants that resulted in his being denied constitutionally

20

adequate medical care.

Simply

stated, plaintiff s allegations fail to state a claim against correctional defendants for an Eighth
Amendment violation based on deliberate indifference to a serious medical need.4
CONCLUSION
For the foregoing reasons defendants'

dispositive motions, treated as motions for

summary judgment, will be GRANTED and judgment will be ENTERED in favor of defendants
and against plaintiff. A separate Order follows.

;24" 7 wi'

).11)

'c2;z-:1~.

WI)

Date

J!rederick Mo
United States District Judge

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N

4

Having found no constitutional violation, the court need not address defendants' claims of qualified immunity.

21