Lloyd v. Glennon et al
MEMORANDUM. Signed by Chief Judge James K. Bredar on 12/5/2017. (c/m 12/06/2017 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GARRETT GLENNON, et al.,
Civil Action No. JKB-16-2160
Anthony Lloyd, a self-represented Maryland prisoner, filed a civil rights complaint
alleging that he was illegally detained in a State correctional facility when he injured his right
triceps after falling from his bunk. He alleges he received constitutionally inadequate medical
care for his injury. ECF 6. Now pending are Motions to Dismiss or, in the Alternative, for
Summary Judgment filed by defendants J. Philip Morgan (ECF 21) (“Correctional Defendant”),
Contah Nimely, Lori Slavick, and Wexford Health Source, Inc. (“Medical Defendants”). ECF
27. Plaintiff opposes the motions (ECF 29, 30, 33, 37), and Medical Defendants filed a reply.
ECF 35. No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2016).
For the reasons that follow, Correctional Defendant’s Motion to Dismiss, or for Summary
Judgment, shall be granted, plaintiff’s complaint against Deputy State’s Attorney for Baltimore
County Garrett Glennon and Warden J. Philip Morgan shall be dismissed, and Medical
Defendants’ Motion to Dismiss, or for Summary Judgment, shall be denied without prejudice,
subject to renewal within 45 days of the date of this Memorandum.
I. Factual Background
Plaintiff indicates that in 2009 he was convicted of bank robbery and related offenses in
the Circuit Court for Baltimore County. He was sentenced to 25 years’ incarceration without the
possibility of parole. On February 23, 2015, his petition for post-conviction relief was granted
and his conviction vacated. ECF 1, p. 7.
On May 21, 2015, three months after he was granted post-conviction relief, he alleges he
improperly remained confined in state prison at the Maryland Correctional Training Center
(“MCTC”). Id. He states that his post-conviction counsel contacted Deputy State’s Attorney
Glennon requesting that he be transferred to the County Detention Center. Id., p. 8. Plaintiff
indicates his belief that since he was then awaiting trial it was improper to continue to house him
in the Division of Correction. Id.
While housed at MCTC, he fell from his bunk sustaining a serious injury to his right
elbow. Id. Plaintiff states that he was “falsely diagnosed with a bone spur: and later taken to a
local hospital where he was diagnosed with a torn tricep [sic] and blood clot.” ECF 6, p. 3. He
states that it took five months to have his injury treated and he underwent two surgeries to repair
his arm. The first was performed on March 1, 2016, at Bon Secours hospital. ECF 1, p. 8.
Plaintiff states his surgery was “botched.” Id. Plaintiff indicates he was denied proper postoperative medical care by the named medical defendants who failed to follow the discharge
instructions of his surgeon. Id., p. 8. Rather, Physician Assistant Lori Slavick removed the
stitches. ECF 6, p. 3. The removal of the stitches/staples left a hole in his right elbow. He
claims that as a result he has suffered excruciating pain, draining, infection, and burning from the
ulcer that developed at the surgical site. ECF 1, pp. 8-9. He claims he was tortured by the
physical therapist and received second-degree burns on his biceps. ECF 6, p. 3. He also claims
he was burned by Dr. Saleem Muhammed. Id.
Lloyd is currently housed at MCTC. ECF 21-2 (Declaration of Tom Nittinger, Case
manager, ¶ 4). After plaintiff’s successful post-conviction hearing, he was remanded to the
custody of the Division of Correction (“DOC”). Id.; Id, p. 3 (docket entries). He was returned to
Baltimore County for his retrial. Id., pp. 6 & 7. Nittinger avers that the DOC has authority to
hold inmates in its custody based upon the authority of the writ it receives from the courts. Id.,
II. Medical Defendants
Pending is Medical Defendants’ motion to strike plaintiff’s correspondence (ECF 37) as
being an improper surreply. ECF 38. Given plaintiff’s self-represented status, and the denial
without prejudice of Medical Defendants’ dispositive motion, the motion shall be denied.
Also pending is plaintiff’s “Supplement to Amended Complaint.” ECF 39. Plaintiff
indicates that on June 29, 2017, he was returned to Bon Secours Hospital for additional surgery
to treat his elbow injury. He states that once again his post-operative orders were not followed
and that Contah Nimely continued to provide follow-up care, despite the conflict of interest that
exists due to plaintiff’s suing Nimely in this case. Additionally, plaintiff alleges that he was
directed to return to the surgeon two weeks after his surgery but was not returned. Instead, staff
at the prison removed his stitches. Plaintiff maintains that this is the same type of conduct that
caused him injury after his initial surgery to repair his elbow. He further maintains that his
follow-up treatment with the surgeon was scheduled for August, weeks after the surgeon directed
he return for follow-up care. Id.
Medical Defendants oppose plaintiff’s amending the complaint (ECF 40) maintaining
that any amendment would be a futility. Medical Defendants argue that his new surgery is
unrelated to the claims in the initial complaint. Id. The court disagrees. Plaintiff’s initial
complaint concerned his claim that he was denied proper medical care for his elbow injury,
including proper post-surgical care. The June 2017 surgery appears to be a continued effort to
treat plaintiff’s elbow injury, which was apparently not resolved by the first surgery, and
represents ongoing treatment of the injury central to the initial complaint. As such, plaintiff shall
be permitted to amend the complaint to include these claims.
Medical Defendants indicate that if the court grants the amendment to the complaint they
will require additional time to obtain supplemental medical records and communicate with
providers regarding plaintiff’s course of treatment. Id. In light of the foregoing, Medical
Defendants’ dispositive motion shall be denied without prejudice, subject to renewal. Medical
Defendants shall renew their dispositive motion within 45 days of the date of this Memorandum
II. Defendants Glennon and Morgan
Motion to Dismiss
The purpose of a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
is to test the sufficiency of the plaintiff’s Complaint. See Edwards v. City of Goldsboro, 178
F.3d 231, 243 (4th Cir. 1999). 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 that 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 conclusional factual allegations devoid of
any reference to actual events, see United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.
Motion for Summary Judgment
Summary judgment is governed by Federal Rule of Civil Procedure 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 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).
“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 former
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
witnesses’ credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th
Cir. 2002). 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 Corporation v.
Catrett, 477 U.S. 317, 323–24 (1986)). 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.
The constitutional protections afforded a pretrial detainee as provided by the Fourteenth
Amendment are co-extensive with those provided by the Eighth Amendment.
See Bell v.
Wolfish, 441 U.S. 520, 535 (1979). The inquiry with respect to the conditions alleged is whether
or not those conditions amount to punishment of the pretrial detainee because due process
proscribes punishment of a detainee before proper adjudication of guilt. Id. “[N]ot every
inconvenience that is encountered during pre-trial detention amounts to ‘punishment’ in the
constitutional sense.” Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). 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).
Plaintiff offers no specific complaints regarding his conditions of confinement within the DOC;
rather, he appears to be under the false assumption that as a pretrial detainee he could only be
housed at the local detention center. Such is simply not the case. Moreover, plaintiff was
remanded, by Court Order, to the custody of the Division of Corrections. As such, plaintiff’s
complaint against Garrett Glennon and J. Philip Morgan shall be dismissed.1
For the foregoing reasons Correctional Defendant’s motion for summary judgment will
be granted, and plaintiff’s complaint against Garrett Glennon and J. Philip Morgan will be
dismissed. Medical Defendants shall renew their dispositive motion as herein directed. A
separate Order follows.
December 5, 2017
James K. Bredar
Although this motion was not filed on behalf of Garrett Glennon, Deputy State’s Attorney for Baltimore
County, nevertheless the arguments made in Morgan’s motion apply equally to Glennon. Accordingly, the Court is
treating the motion as though brought on Glennon’s behalf.
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