Galvan-Jiron v. Clem et al
MEMORANDUM. Signed by Judge Ellen L. Hollander on 6/2/2017. (c/m 6/5/2017)(ko, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ELMER A. GALVAN JIRON, #332595
DR. JASON CLEM
WEXFORD MEDICAL COMPANY
* CIVIL ACTION NO. ELH-16-3491
On October 20, 2016, plaintiff Elmer Galvan Jiron,1 a self-represented inmate
incarcerated at the Eastern Correctional Institution (“ECI”), filed a civil rights action against
Wexford Health Sources, Inc. (“Wexford”), the private health care contractor serving inmates in
the Maryland Department of Public Safety and Correctional Services, and Dr. Jason Clem, the
Medical Director at ECI (hereinafter, “Medical Defendants”). In the suit, filed pursuant to 42
U.S.C. § 1983, plaintiff seeks monetary compensation and injunctive relief, i.e., referral to an eye
specialist and enforcement of all instructions and prescribed medicines. ECF 1 at 4.
The Medical Defendants have filed a motion to dismiss or, in the alterative, a motion for
summary judgment. ECF 10. It is supported by a legal memorandum (ECF 10-3)2 (collectively,
“Motion”) and a number of exhibits.3 Pursuant to the dictates of Roseboro v. Garrison, 528 F.2d
Plaintiff refers to himself as Elmer A. Galvan Jiron. However, the Maryland
Department of Public Safety and Correctional Services (“DPSCS”) lists plaintiff as Elmer
Antonio Galvangiron on its “inmate locator” website.
All exhibits are referenced by their electronic filing number.
The sealed medical record, at ECF 12, is 56 pages in length.
309 (4th Cir. 1975), on January 11, 2017, the Clerk of Court informed Galvan Jiron that
defendants had filed a dispositive motion; that Galvan Jiron had seventeen days in which to file
a written opposition; and that if he failed to respond, the claim against Wexford and Clem could
be dismissed, without further notice. ECF 13. Galvan Jiron was granted two extensions of time
in which to respond, and he filed an opposition on April 3, 2017 (ECF 19, “Opposition”), along
with exhibits, including his own Affidavit. ECF 19-1 at 3-4. The Medical Defendants filed a
reply. ECF 20.
The matter is ready for disposition, and no hearing is necessary. See Local Rule 105.6
(D. Md. 2016). For the reasons that follow, I shall construe the Motion as one for summary
judgment and GRANT it.
I. Factual Background
Galvan Jiron alleges that on or about June 11, 2014, he began to experience a severe eye
disorder, resulting in his referral to an eye specialist, “Dr. Summerville.” The doctor performed
an operation and prescribed specific medicine and instructions to be carried out by the medical
department. Plaintiff complains that the medical department did not adhere to the instructions or
provide prescribed items (sunglasses, pain medication, and eye drops), he was subjected to
severe pain, and he is losing his vision. ECF 1 at 4. Further, plaintiff claims that he sought
additional treatment from Dr. Clem and asserts that defendants have been deliberately indifferent
to his medical needs. Id.
The Medical Defendants‟ materials indicate that Galvan Jiron is a 46-year old male with
a medical history significant for pterygium,4 esophageal disease, constipation, and backache.
Pterygium is a growth of fleshy tissue. It can remain small or grow large enough to
cover part of the cornea. It is believed to be caused by having dry eyes. The growth may also be
ECF 10-5, Clem Aff. Dated January 10, 20175 On April 30, 2014, while plaintiff was housed at
North Branch Correctional Institution (“NBCI”), he was seen by an ophthalmologist, Dr.
Michael Summerfield, due to Galvan Jiron‟s complaints concerning his right eye. Id. ¶ 5.
Galvan Jiron reported that he was provided eye drops, but he was not taking them because they
did not help. Id. His uncorrected vision in his right eye was 20/20 and 20/25 in his left eye. Dr.
Summerfield recommended removal of the pterygium. Galvan Jiron was prescribed Visine-A6 at
that time. Id.
On June 11, 2014, Galvan Jiron was transferred to the Western Maryland Health System
for pterygium removal, with autograft in the right eye, to be performed by Dr. Summerfield. Id.
¶ 6. Galvan Jiron was informed of the risks of the surgery, including blindness or loss of the
eye. Id. A local anesthetic was injected and “the pterygium was excised in its entirety.” Id. “A
graft was then sewn into place over the excised defect.” Id. Post-operative drops of Pred Forte
and Vigamox7 were applied and “the eye was patched and shielded.” Id.; ECF 12 at 18-25.
Galvan Jiron was taken to the recovery room. No new medications for the eye were prescribed.
Dr. Summerfield was to see Galvan Jiron the following day. ECF 10-5, ¶ 6; ECF 12 at 28-33.
caused by exposure to wind, dust, and ultraviolet (UV) light from the sun.
Dr. Clem is a licensed physician who serves as the Regional Medical Director for
Wexford. ECF 10-5, ¶¶ 1, 20.
Visine A is used to temporarily relieve itchy, red eyes caused by allergies to things
Pre Forte drops are used for treating inflammation of the eyes and eyelids due to certain
conditions. It is an ophthalmic corticosteroid. See https://www.drugs.com/cdi/pred-fortedrops.html.
Vigamox is a quinolone antibiotic used for eye infections.
Galvan Jiron was returned to the Western Correctional Institution on June 12, 2014, and
admitted to the infirmary for twenty-four-hour observation. ECF 10-5, Clem Aff., ¶ 7; ECF 12
at 1. He was seen by Delores Adams, R.N., that same day for a complaint of discomfort in his
right eye associated with photophobia (abnormal intolerance to light). ECF 10-5, ¶ 7. Adams
was unable to inspect the eye due to Galvan Jiron‟s refusal to open it. Id. Galvan Jiron denied
nausea, was able to ambulate independently, and was able to perform his daily living activities
without assistance. Id.; ECF 12 at 2-3.
Galvan Jiron was also seen by Dr. Summerfield on June 12, 2014. ECF 10-5, ¶ 8. The
ophthalmologist noted that Galvan Jiron‟s right eye was in “„excellent condition‟” and that his
uncorrected visual acuity for his left eye was 20/60. Id. Dr. Summerfield noted that plaintiff
was ready to be discharged from the infirmary and returned to general population at NBCI. Id.;
see also ECF 12 at 36.
On June 14, 2014, Galvan Jiron was seen by Dr. Colin Ottey for a provider visit related to
his recent eye surgery. ECF 10-5, ¶ 9. He reported pain and blurred vision. Dr. Ottey noted that
Galvan Jiron was photophobic and that he would discuss Galvan Jiron‟s symptoms with Dr.
Summerfield. Id. He ordered Galvan Jiron medically assigned to receive meals in his cell for
two weeks. Id.; ECF 12 at 6-7. On June 18, 2014, Galvan Jiron was provided a bottle of
artificial tears by Kristi Cortez, R.N. ECF 12 at 6-8.
On June 26, 2014, Galvan Jiron was seen by Nurse Practitioner Janette Clark for
complaints of eye pain. ECF 12 at 9-11; ECF 10-5, ¶ 10.8 She noted that Galvan Jiron had
recently had surgery on his right eye and that his sclera was reddened. In addition to his Visine8
Clem‟s Affidavit indicates that plaintiff was seen by Nurse Clark on June 25, 2014.
However, the medical record states the date of June 26, 2014. The discrepancy is not material.
A, Galvan Jiron was prescribed Pred Forte and artificial tears. His feed-in medical assignment
was extended for thirty days, he was provided an eye patch, and he was instructed to tape the eye
shut while wearing the patch. Galvan Jiron was referred to Dr. Summerfield for a follow-up
visit. ECF 10-5, Clem Aff., ¶ 10; ECF 12 at 9-11.
Dr. Summerfield saw plaintiff on July 9, 2014. ECF 10-5, ¶ 11. His uncorrected visual
acuity in the right eye was 20/200 and 20/20 in his left eye. Id. The corrected vision in the right
eye was 20/25. Id. Dr. Summerfield noted that Galvan Jiron‟s right eye was “doing well.” Id.;
ECF 12 at 37. Moreover, his “poor visual acuity in his right eye was an expected temporary
result” of the surgery. ECF 10-5, ¶ 11.
Dr. Summerfield again examined plaintiff on August 13, 2014. ECF 10-5, ¶ 13; ECF 12
at 38. His uncorrected visual acuity in his right eye was 20/30 and it was 20/20 in left eye. Id.;
ECF 12 at 38.
On August 28, 2014,9 Galvan Jiron was examined by the prison optometrist for
eyeglasses. His uncorrected visual acuity was 20/40 in his right eye and 20/25 in his left eye.
His corrected visual acuity in both eyes was 20/25. A prescription for glasses was submitted.
ECF 12 at 39-40; see also ECF 10-5, ¶ 12.
On January 15, 2015, and again on April 21, 2015, plaintiff was seen by the prison
optometrist. His corrected vision in both eyes was 20/20. Id. ¶¶ 15, 16. There was no notation
that he complained of eye pain during the optometry visits. Id.; ECF 12 at 46-49.
Dr. Clem avers that the date was August 8, 2014. Presumably, that was a typographical
error. In any event, the discrepancy is not material.
The Medical Defendants allege that Galvan Jiron “voiced no complaints related to his eye
between August 13, 2014 and June 4, 2015,” when he submitted a sick-call slip complaining of
eye pain. ECF 10-5, Clem Aff., ¶ 14.
On June 8, 2015, Galvan Jiron was seen by Physician‟s Assistant Kelly Murray for
complaints related to eye pain and other issues. ECF 10-5, ¶ 17. In particular, he complained
that he was having difficulty reading with his new glasses, indicating that the eyeglasses caused
his left eye to strain while reading. He was referred to the optometrist. Id. He was seen by the
prison optometrist on July 14, 2015. Id. ¶ 19. His corrected vision was 20/25 in both eyes. Id.;
ECF 12 at 50-52.
On or around November 6, 2015, Galvan Jiron was transferred to ECI. The day after
plaintiff‟s arrival at ECI Galvan Jiron was seen by the prison optometrist for complaints of blurry
vision. His corrected vision was 20/25 in both eyes. His eyeglass prescription was updated and
he was issued new prescription glasses soon after. Id., ¶ 21; ECF 12 at 53-54.
Galvan Jiron submitted a request to see the optometrist on June 26, 2016, because his
eyes were burning. ECF 20-1 at 6. He reported that he had eye surgery two years earlier and
said: “I haven‟t seen the optometrist at all.” Id. He submitted another request to see the
optometrist on September 4, 2016, because he claimed his vision was getting worse. Id. at 7. He
was seen by Melissa Richbank, R.N., on September 10, 2016.
Kerpelman, N.P. also saw plaintiff on November 4, 2016, for matters unrelated to his eyes. ECF
20-2 at 2-4. On November 7, 2016, Galvan Jiron was seen by the optometrist for a complaint of
blurry vision. His vision was evaluated and found to be 20/25 in both eyes. The optometrist did
not refer Galvon Jiron to an ophthalmologist.10
On February 4, 2017, Galvan Jiron was seen at sick call for his complaint of pain and
pressure to his right eye when leaning over. ECF 20-2 at 5-6. He was referred to an optometrist.
Id. at 6. On March 3, 2017, Galvan Jiron was seen by Registered Nurse Kerpelman. No
exophthalmos11 was observed, his pupillary reaction was found to be normal, and his extraocular
movements were found to be intact. ECF No. 20-2.
Notably, on July 11, 2014, about a month after his eye surgery, plaintiff filed a Request
for Administrative Remedy (“ARP”) with the Maryland Division of Correction. ECF 19-1 at 1.
He complained that he did not receive an eye patch, eye drops, and pain medicine. Id. The
Warden responded on November 7, 2014. Id. at 2. The Warden found that the ARP was
“meritorious in part” because Dr. Summerfield ordered eye drops on June 12, 2014, but they
were not provided. And, an eye patch was not ordered until June 25, 2014, although it was
received on that date. Id. Eye drops were again ordered by Dr. Summerfield on June 25, 2014,
and plaintiff signed for them on June 27, 2014. Id.
Dr. Clem opines that the post-surgical care provided to plaintiff was in accordance with
the recommendations of Dr. Summerfield. In addition, he opines that the care provided to
plaintiff was medically appropriate. ECF 10-5, ¶¶ 23, 24.
Curiously, Dr. Clem avers that, since plaintiff‟s transfer to ECI, he has “voiced no
complaints of eye issues” to Dr. Clem or to any other ECI medical staff. ECF 10-5, Clem Aff.,
¶ 20. The Medical Defendants also assert that Galvan Jiron raised “no complaints of eye pain”
from June 8, 2015 to the present, i.e., January 10, 2017. ECF 10-5, Clem Aff., ¶ 18.
Exophthalmos is the abnormal protrusion of the eyeball.
II. Standard of Review
The Medical 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,” and “[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). When, as here, the movant expressly captions its motion “in the alternative,” as one to
dismiss or 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).12
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
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.”).
12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not
consider it.” 5C 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 165-67.
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. 2011). 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 non-movant 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
“[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 nonmoving 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
If a nonmoving party believes that further discovery is necessary before consideration of
summary judgment, the party who fails to file a Rule 56(d) affidavit does so 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 nonmoving 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.‟” Id. at 244-45 (internal citations omitted).
In his Opposition, plaintiff asks that he be permitted to conduct discovery so that the
court may consider this case on a full record. ECF 19 at 1. But, Galvan Jiron does not indicate
what discovery he wishes to obtain, what records are missing, nor does he discuss how the
absence of discovery renders him unable to respond to the Medical Defendants‟ exhibits. In light
of the relevant medical record and affidavits submitted to the court, I am satisfied that it is
appropriate to address the Medical Defendants‟ Motion as one for summary judgment.
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.” Under Rule 56(a) of
the Federal Rules of Civil Procedure, summary judgment is appropriate only “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.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986); see
also Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017) (“A court
can grant summary judgment only if, viewing the evidence in the light most favorable to the nonmoving party, the case presents no genuine issues of material fact and the moving party
demonstrates entitlement to judgment as a matter of law.”).
The non-moving party must
demonstrate that there are disputes of material fact so as to preclude the award of summary
judgment as a matter of law. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 585–86 (1986).
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). A
fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248.
There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.; see Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir.
“A 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 Roland v. United States Citizenship & Immigration Servs.,
850 F.3d 625, 628 (4th Cir. 2017); 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;
accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, 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
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 Sharif v. United Airlines, Inc., 841 F.3d 199,
2014 (4th Cir. 2016); 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 Corporation v.
Catrett, 477 U.S. 317, 323–24 (1986)).
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,
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 defendant or the 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. 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 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 v. Stansberry, 772 F.3d 340, 346 n.8 (4th Cir. 2014).
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 reckless disregard in
the face of a serious medical condition, i.e., with “a sufficiently culpable state of mind.” Wilson
v. Seiter, 501 U.S. 294, 298 (1991); see Farmer, 511 U.S. at 839-40; Scinto, 841 F.3d at 225.
Put another way, “[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.
The Fourth Circuit has said: “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, 57576 (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).
Notably, deliberate indifference “is a higher standard for culpability than mere negligence
or even civil recklessness” and, “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), resonates here: “Deliberate indifference is a very high
standard – a showing of mere negligence will not meet it . . . [T]he 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.”
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). 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 v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (quoting
Farmer, 511 U.S. at 842).
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
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. But, 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 do not have a constitutional right to the treatment of their choice. Dean v.
Coughlin, 804 F.2d 207, 215 (2nd Cir. 1986). And, disagreements between an inmate and
medical staff 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) (citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3rd Cir. 1970)); see also Fleming v.
LeFevere, 423 F.Supp.2d 1064, 1070-71 (C.D. Cal. 2006).
In his Opposition, Galvan Jiron complains that as a Latino male of Honduran decent, he
understood very little and was not provided an interpreter when it came to court and medical
issues. ECF 19.13 He contends that every time he tried to obtain a specialist referral to be
examined and have his pain level measured, Dr. Clem “deflected” him by having non-physicians
examine and treat him. Galvan Jiron argues that it is the policy of Wexford and Clem to avoid
personal contact with inmates to avoid liability. Moreover, he complains that he did not receive
an eye patch or eye drops in a timely manner, as they were not provided to him until two weeks
after they were ordered following the excision of the pterygium growth in his right eye in June
204. ECF 19.
A review of the pleadings and accompanying exhibits belies plaintiff‟s claim under the
Eighth Amendment for deliberate indifference with regard to his medical care. The medical
record reveals that Galvan Jiron‟s eye condition was evaluated and he was found to have a
growth or pterygium on his right eye. The pterygium was surgically removed at a hospital and
he received post-surgical follow-up evaluation from the surgeon, who found Galvan Jiron‟s eye
to be healing well. Further, Galvan Jiron was seen by prison medical staff, including nurses,
Galvangiron appears to complain that, due to his minimal understanding of the English
language, he requires an interpreter to plead in this court and when receiving medical care.
Notwithstanding this eleventh hour claim, the medical and court records generally suggest
otherwise. But see ECF 20-2 at 2. Galvangiron‟s pleadings and sick-call slips show that he is
able to litigate his case and to grieve his medical claims without the assistance of an interpreter.
doctors, and optometrists, and his post-surgical vision improved to almost normal with corrected
Unfortunately, Galvan Jiron did not receive his eye drops and eye patch until two weeks
after his surgery on June 11, 2014. But, he has failed to demonstrate deliberate indifference due
to the delay in providing him with the patch or the eye drops, or that the delay caused him an
injury. At most, plaintiff has shown inadvertence or negligence.
On the record in this case, an Eighth Amendment violation cannot be made. Summary
judgment will be entered in favor of the Medical Defendants in a separate Order to follow.
Date: June 2, 2017
Ellen L. Hollander
United States District Judge
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