Moore v. Warden et al

Filing 21

MEMORANDUM. Signed by Judge James K. Bredar on 7/7/2017. (c/m 7/7/17 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ROBERT GARY MOORE

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Plaintiff,

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v.

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WARDEN (NAME UNKNOWN) OF
NORTH BRANCH CORRECTIONAL
INSTITUTION
THE WHOLE MEDICAL STAFF
THE PERSON IN CHARGE OF MEDICAL
ENTITY
Defendants.

Civil Action No. JKB-16-2410

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MEMORANDUM
On June 27, 2016, the court received for filing Robert Gary Moore‟s self-represented 42
U.S.C. § 1983 civil rights action. Moore seeks injunctive relief and damages from unidentified
medical personnel and a prison administrator at the North Branch Correctional Institution
(“NBCI”). Pending are Wexford Health Sources, Inc.‟s (Wexford”)1 motion and supplemental
motion to dismiss or in the alternative, for summary judgment, filed on behalf of defendant “The
Person in Charge of Medical Entity.”2 ECF Nos. 11 & 17. Defendant Warden Bishop has also
filed a motion to dismiss or, in the alternative, motion for summary judgment.3 ECF No. 13.
Moore has filed an opposition response and Wexford has filed a reply. ECF Nos. 19 & 20.

1

The court takes judicial notice that Wexford is the private entity contracted by the
Department of Public Safety and Correctional Services to provide medical care to state inmates.
2

The Clerk shall be directed to amend the docket to substitute Wexford for
defendant “The Person in Charge of Medical Entity.”
3

The Clerk shall be directed to amend the docket to substitute Warden Frank
Bishop for defendant “Warden (Name Unknown).”

The matter is ready for disposition; no hearing is deemed necessary. See Local Rule
105.6 (D. Md. 2016). For reasons that follow, defendants‟ motions, construed as motions for
summary judgment, ARE GRANTED.
I. Background
Moore alleges that he was subject to a due process violation and “medical neglect”
because his grievances and sick-call claims regarding contaminated drinking water at NBCI (and
his medical conditions arising from same) were ignored. He asserts that the main sewage pipe at
NBCI ruptured and defendants should have known that he and other inmates were drinking
“deadly water” after several prisoners had developed symptoms caused by deadly bacteria.
Moore contends that he received no response to his administrative remedy procedure (“ARP”)
grievance concerning contaminated drinking water. He states that he submitted an ARP in June
of 2016, complaining of contaminated drinking water, and the ARP was destroyed. ECF No. 1,
pp. 4-5. Moore further alleges that he was never seen for sick-call slips concerning breathing
problems and pain submitted in June and August of 2015 and January of 2016. Id., p. 5.
II. Standard of Review
Defendants‟ motions are styled as motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6) or, in the alternative, for summary judgment under Rule 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 Dep’t, Inc. v. Montgomery Cty., 788 F. Supp. 2d 431, 43637 (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,” and “[a]ll parties must be given a
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reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P.
12(d). 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 courtinstituted 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
Fisher v. Md. Dept. of Pub. Safety & Corr. Servs., Civ. No. JFM-10-0206, 2010 WL 2732334, at
*3, 2010 U.S. Dist. LEXIS 68772, at *8-10 (D. Md. July 8, 2010).
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.
Because defendants have filed and relied on declarations and exhibits attached to their
dispositive motions, their motions shall be treated as a summary judgment motions.
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Summary judgment is governed by Rule 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).

In analyzing a summary

judgment motion, 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); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
“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)).
Because Moore 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)).
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III. Discussion
The Eighth Amendment prohibits Aunnecessary and wanton infliction of pain@ by virtue
of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173
(1976). AScrutiny under the Eighth Amendment is not limited to those punishments authorized
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 prisoner must demonstrate that the actions of the
defendants or their failure to act amounted to deliberate indifference to his serious medical
needs. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Iko v. Shreve, 535 F.3d 225, 241
(4th Cir. 2008).

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 was 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).
As noted above, objectively, the medical condition at issue must be serious.4 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 Asubjective recklessness@ in the face of the serious
medical condition.

Farmer, 511 U.S. at 839-40.

ATrue subjective recklessness requires

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 (citing Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir.
1999)).
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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). AActual 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) (quoting Farmer,
511 U.S. at 844). If the requisite subjective knowledge is established, an official may avoid
liability Aif [he] responded reasonably to the risk, even if the harm was not ultimately averted.@
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. Brown, 240 F.3d at 390 (citing Liege 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)). Inmates do not have a constitutional right to the
treatment of their choice, Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986), and
disagreements between medical staff and an inmate over the necessity for or extent of medical
treatment do not rise to a constitutional injury. See Estelle, 429 U.S. at 105-06; Wright v.
Collins, 766 F.2d 841, 849 (4th Cir. 1985); see also Fleming v. LaFevere, 423 F. Supp. 2d 1064,
1070-71 (C.D. Cal. 2006).
An inmate may set out a conditions of confinement claim by alleging that he was
deprived of a basic human need that was objectively sufficiently serious and that subjectively
prison officials acted with a sufficiently culpable state of mind to expose him to those conditions.
See Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993). Only extreme deprivations are
adequate to satisfy the objective component of an Eighth Amendment claim. See Hudson v.
McMillian, 503 U.S. 1, 9 (1992).

Such deprivations may be demonstrated by producing

evidence of a serious or significant physical injury resulting from the challenged conditions,
Strickler, 989 F.2d at 1380-81; Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997), or by
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demonstrating a substantial risk of serious harm resulting from the unwilling exposure to the
challenged conditions.

See Helling v. McKinney, 509 U.S. 25, 33-35 (1993) (exposure to

environmental tobacco smoke). The key in determining whether prison conditions become cruel
and unusual requires examination of the effect on the inmate. See Rhodes v. Chapman, 452 U.S.
337, 364 (1981).
Title 42, United States Code, § 1983 medical liability on the part of prison administrators
requires a showing that A(1) the supervisory defendants failed promptly to provide an inmate
with needed medical care, (2) that the supervisory defendants deliberately interfered with the
prison doctors' performance, or (3) that the supervisory defendants tacitly authorized or were
indifferent to the prison physicians' constitutional violations.@ Miltier v. Beorn, 896 F.2d 848,
854 (4th Cir. 1990) (internal citations omitted).
IV. Analysis
It is well established that the doctrine of respondeat superior does not apply in § 1983
claims. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no respondeat superior
liability under § 1983); see also Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (no
respondeat superior liability in a Bivens suit). Liability of supervisory officials “is not based on
ordinary principles 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)). Moore has failed to point to any personal conduct by Wexford, in regard to the matters
alleged in his complaint. His effort to hold Wexford liable based on its supervisory role is
unavailing. It is entitled to dismissal.

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Moreover, Moore has failed to demonstrate the health care personnel were deliberately
indifferent to a serious medical need. The minimal exhibits provided by Wexford indicate that
no sick-call slips were received from Moore in June and August of 2015 and January of 2016.
ECF No. 11-3, Beeman Aff. The record shows that Moore was seen for a periodic examination
by Registered Nurse Practitioner Bilak on or about March 15, 2016. His vital signs were normal
and the examination was unremarkable. His respiration was found to be regular and he had no
cough or wheezing issues. ECF No. 11-4. Further, blood testing, including a complete blood
count or “CBC” and basic metabolic evaluation, was conducted on or about March 26, 2016, and
revealed no clinically significant abnormal results. ECF No. 11-5. There is no showing that
Moore‟s respiratory system or overall health has been compromised.
Moore‟s claim against defendant Bishop also fails. In his dispositive motion, Warden
Bishop states that Moore has been housed at NBCI since March 5, 2014.

He maintains that

there was no rupture of the main NBCI sewage line, sewage leak, or contamination of NBCI‟s
potable water. ECF No. 13-2, Isler Decl. Bishop argues that the potable water at NBCI does
not come from a sewage line, but rather from the city of Cumberland, Maryland, through a
pipeline system attached to the water main. Id. He states that the potable water comes from the
same water source used by residents of the City of Cumberland. He further affirms that he has
no involvement in Moore‟s medical treatment and he relies on the assessments and reports of
health care staff regarding the care and treatment of inmates. ECF No. 13-5, Bishop Decl.
In response to defendants‟ motions, Moore claims that the blood test results provided are
irrelevant as at the time the blood was taken (March of 2016) the issues regarding the drinking
water “had not surfaced yet.” ECF No. 19. He contends that he was informed of the past water
problems sixty days after his blood was taken. Moore further argues that Bishop‟s declaration
did not affirm that the water was not contaminated and that inmates were not diagnosed with
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bacterial illness from drinking water. He speculates that drinking contaminated water can cause
various future medical complications and conditions, resulting in death. ECF No. 19.
Moore has been called upon to refute the declarations provided by Bishop to show a
rupture or breakdown of the NBCI sewage line, contamination of the potable water, and injury
from the alleged contamination. He has not done so. The full record provided the court shows
that although Moore received minimal medical care during the time period in question, his health
care examinations and blood test results were unremarkable. Bishop asserts that he plays no role
in making medical decisions, does not have any authority over the decisions of health care staff,
and relies on their expertise. Bishop is entitled to summary judgment in this case.
A constitutional violation cannot be made given the facts of this case. Judgment will be
entered in favor of defendants in a separate Order to follow.5

Date: July 7, 2017

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_____________/s/__________________
James K. Bredar
United States District Judge

The complaint against defendant “The Whole Medical Staff” shall be dismissed.
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