Crudup v. Webster

Filing 32

MEMORANDUM. Signed by Judge James K. Bredar on 9/25/2017. (c/m 9/25/2017)(ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DON CRUDUP

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Plaintiff

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v

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DARRYL WEBSTER
DEBORAH TABULOV1

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Civil Action No. JKB-16-3592
(Consolidated Case: JKB-16-3593)

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Defendants
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MEMORANDUM
In response to these consolidated cases, defendants filed motions to dismiss or for
summary judgment. ECF 24 and 27. Shortly after defendants filed their dispositive motions,
counsel entered his appearance on behalf of plaintiff and moved for an extension of time to and
including July 26, 2017, in which to file an opposition response. ECF 30. Although the motion
was granted, the dispositive motions remain unopposed. ECF 31. No hearing is required to
address the matters pending. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow,
the unopposed motions2 shall be granted.
Background
Plaintiff Don Crudup, an inmate committed to the custody of the Department of Public
Safety and Correctional Services and confined at Eastern Correctional Institution (ECI), asserts
that on September 1, 2016, his prescribed cane was taken from him by the facility administrator

1

2

The Clerk shall amend the docket to reflect the full and correct spelling of defendants‟ names.

Defendants‟ dispositive submissions will be treated as motions for summary judgment under Federal Rule
of Civil Procedure 56 because materials outside the original pleadings have been considered. See Bosiger v. U.S.
Airways, 510 F.3d 442, 450 (4th Cir. 2007).

for ECI-Annex, Darryl Webster. ECF 1 at p. 3. As a result, Crudup claims he injured his right
leg. Id.
Crudup provides what he asserts is a verbatim copy3 of an incident report written by
Officer Tyndall documenting the circumstances under which his cane was confiscated. ECF 1 at
pp. 5- 6. Tyndall was assigned to escort Crudup and informed Crudup that he was going to
confiscate the homemade shorts he was wearing and told him he had to wear state-issued jeans.
Id. at p. 5. Crudup refused to wear the jeans despite being ordered to do so three times. Id.
During this encounter, Tyndall relates that Webster came onto the housing unit and began to
inquire about Crudup‟s cane. Id. at p. 6. Crudup produced paperwork indicating he had been
prescribed the cane by medical staff, but Webster was told by medical staff that Crudup did not
have a medical order for a cane. Id. Consequently, Webster confiscated the cane. Id.
Crudup further avers that an additional report written by Officer C. Fontaine indicates
that he was given a direct order by Webster to retrieve a cane from Crudup. ECF 1 at p. 7.
Fontaine stated that Crudup refused several orders to relinquish the cane and that force was
“almost used by FA Webster and [Fontaine]” to recover the cane. Id. Fontaine then allegedly
wrote that Crudup told Webster, “you can stick that cane up your ass.” Id.
Crudup states that Fontaine‟s report does not mention a struggle “back and forwards”
between himself and Webster “while [Crudup] was handcuffed from behind threw (sic) this
incident.” ECF 1 at p. 8. Crudup also maintains there is a discrepancy among the reports
regarding who gave him a direct order to relinquish the cane and that Fontaine left out
information about Webster attacking him and pulling the cane away. Id.

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Crudup does not provide a copy of the original reports by Tyndall and Fontaine, but a “copy” in Crudup‟s
handwriting. ECF 1 at pp. 5-6 (Tyndall report) and pp. 7-8 (Fontaine Report). The original document for Tyndall‟s
report was provided by Crudup in ECF 6-1 at p. 1 (Notice of Infraction dated September 1, 2016).

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In his supplemental complaint,4 Crudup claims that after Webster took his cane he made
a request for a replacement cane to the medical provider, Wexford Health Sources, Inc., and it
took 41 days to receive another cane. ECF 4 at p. 3. Crudup states that when he requested the
cane, “the provider stated that the facility administrator Mr. Webster stated for me not to have
this.” Id. Crudup claims that the response “puts them in error of negligence for not providing
medical equipment.” Id. He names only Deborah Tabulov as the defendant for this claim. Id. at
p. 1.
Crudup further alleges in a second supplement that Tyndall‟s Notice of Infraction and his
testimony during the disciplinary adjustment hearing differed regarding whether he saw
paperwork stating that Crudup had a medical condition requiring his use of a cane. ECF 6 at pp.
1–2. Crudup states that “[i]t‟s clear to see that untruthfulness occurred during [Tyndall‟s] report
to cover up what he saw during the incident.” Id. Tyndall‟s Notice of Infraction indicates that
“Crudup produced the paperwork” that Webster requested to establish that Crudup had a medical
order of a cane, but that “Webster stated that medical did not have.” ECF 6-1 at p. 1. During the
hearing, Tyndall‟s testimony is recounted as indicating that “[t]he paperwork [Crudup] had did
not match up with what was in medical” and that “[w]e went through his paperwork we found it
was from another institution.” Id. at p. 3. Tyndall indicated that he never saw paperwork from
ECI-Annex stating that Crudup was disabled and that he needed a cane. Id.
Crudup indicated during his disciplinary hearing that the entire incident concerned him
shadow boxing and using a medicine ball and was not about his shorts or his possession of a
cane. ECF 6-1 at p. 3. He claimed he was showing Webster that “boxing and use of a medicine
ball was not martial arts” and that Webster “got mad and said, „you are out of here‟ do what my

4

The first supplemental complaint was filed as a separate civil action and later consolidated with this case.
See ECF 4; Civil Action JKB-16-3593.

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officers tell you to do follow [sic] the rules.” Id. Crudup further maintained that the reporting
officer did not report the full details of the incident and denied telling Webster to shove or stick
the cane “up your ass.” Id.
An administrative remedy procedure complaint (“ARP”) filed by Crudup on
September 15, 2016, was found meritorious in part by Warden John Wolfe. ECF 7-1 at pp. 1- 3.
Crudup complained that he suffers from chronic pain syndrome and had requested on several
occasions either a cane or a walker or both. ECF 7-1 at p. 1. He further states that due to issues
with his spine, he walks slowly, stooped over at his waist; claims a cane was ordered for him on
June 16, 2012; and the lack of response to his sick call slips poses a threat to his safety as it may
cause him an injury. Id. at p. 2.
In his response, Wolfe stated:
There was no active order for a cane, as medical providers must reassess and
order annually, you did not have an active order. There was though a delay in
care as you waited for your chronic care visit instead of being seen for provider
sick call. On 9/1/2016 you were evaluated by the doctor. You apparently took
a fall and were assessed by the physician. You complained of pain to knee and
back and were admitted to the infirmary. According to that documentation,
you were seen by custody exercising and no use of cane. The cane was
confiscated as there was no order for the cane. The doctor also documented on
9/1/2016 that there was only mention of a cane in a 2014 document but no
current order. On 9/2/2016, it was noted that you had been standing at the
infirmary door waiting of food and medication independently without the use
of a cane. When asked about standing unassisted by the physician, you were
unable to explain. It is also documented by the physician on 9/2/2016 that the
doctor offered treatment options for your knee, but you declined. The doctor
noted in the infirmary that there was minimal swelling to your knee and that
you no longer needed infirmary level care and was discharged back to the
housing unit with no order for a cane noted. On 9/6/2016 you submitted a sick
call slip in reference to a cane and seen by the nurse on 9/8/2016, the nurse
noted that an email was sent to the providers about your request and mobility
issues. On 9/13/2016 you submitted another sick call in reference to cane and it
was noted on 9/15/2016 by the nurse that you would not comply with custody
and get properly dressed to come out for your sick call visit. You were
notified at the door that you would be seen for chronic care. On 9/18/2016
medical received a sick call slip from you again requesting a cane, you were
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advised at the door to address this concern at upcoming chronic care visit
according to the medical documentation on 9/19/2016. On 9/29/2016, a slip
call [sic] was received in reference to a cane. According to nurse note
9/30/2016, you walked up to the medical room in segregation independently
with a limp, you were again deferred to chronic care. On 10/6/2016 you were
seen in chronic care to address his [sic] chronic pain. At the time of this visit,
you complained of pain and your pain medications were changed and x-rays
were ordered for your knee. The provider also placed an order the next day for
you to have bottom bunk and bottom tier as you complained of limited
mobility. On 10/9/2016, medical received another request from you about
needing a cane and seen by nurse on 10/11/2016 at which time she documented
that she emailed your chronic care provider about such request. On
10/14/2016 an order for a cane was placed by the chronic care provider due to
your recent x-ray showed degenerative joint disease to assist in your
ambulation. A cane was received and signed for the cane on 10/14/2016, the
day in which it was ordered.
ECF 7-1 at p. 3.
In a second ARP dated October 10, 2016, Crudup alleges that he has been without a cane
since September 1, 2016, despite his medical history containing an alert that he uses a cane for a
disability involving his right hip, right leg, and a back disorder involving discs at levels L4 to L5.
ECF 7-1 at p. 4. Crudup states that the provider who refused to issue a cane is defendant
Deborah Tabulov. Id. This ARP was also found meritorious in part by Warden Wolfe. Id. The
Warden‟s response duplicates the response to Crudup‟s September 15, 2016, ARP with the
addition of the following observation:
In reference to your request for medical housing or infirmary stay, you have
been evaluated for the need to be placed on a medical tier by the chronic care
provider and the request is being processed and awaiting approvals from
necessary parties.
ECF 7-1 at p. 7.
Standard of Review
Summary judgment is governed by Federal Rule of Civil Procedure 56(a), which
provides in part:

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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)).
Discussion
Although Crudup‟s precise claim is not entirely clear, liberally construed, the complaint
appears to allege that depriving Crudup of a cane was a violation of his Eighth Amendment right
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to be free from cruel and unusual punishment. His use of the term “negligence” to describe
defendants‟ conduct does not foreclose analysis of the claims asserted as alleging constitutional
deprivations. Inartful pleading by self-represented litigants is not a proper basis for dismissal of
the claims asserted.
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). “Scrutiny 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 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 . . . [T]he Constitution is designed to deal with
deprivations of rights, not errors in judgments, even though such errors may have unfortunate
consequences.” Grayson v. Peed, 195 F.3d 692, 695- 96 (4th Cir. 1999).
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 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). A
medical condition is serious when it 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

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for a doctor‟s attention.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008), see also Scinto v.
Stansberry, 841 F.3d 219, 228 (4th Cir. 2016) (failure to provide diabetic inmate with insulin
where physician acknowledged it was required is evidence of objectively serious medical need).
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. Va. Beach Corr. 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 “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); see also Jackson v. Lightsley, 775
F.3d 170, 179 (4th Cir. 2014) (physician‟s act of prescribing treatment raises fair inference that
he believed treatment was necessary and that failure to provide it would pose an excessive risk).
While “a prisoner does not enjoy a constitutional right to the treatment of his or her choice, the
treatment a prison facility does provide must nevertheless be adequate to address the prisoner's
serious medical need.” De'lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013) (refusal to

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evaluate transgender inmate for gender reassignment surgery where current therapy failed to
alleviate urge for serious self-harm).
Defendant Darryl Webster provides a declaration in support of his dispositive motion
indicating that as Facility Administrator of ECI Annex, he received complaints from correctional
officers regarding Crudup in the summer of 2016. ECF 27-3 at p. 1. Officers complained that
Crudup “was frequently difficult and violating minor rules.” Id. Webster states that there were
no major problems, but “the attention raised the question of why . . . Crudup had a cane, in part
because he was very active and did not seem dependent on the use of a cane.” Id. at p. 2.
Webster investigated the matter and could not find a doctor‟s order prescribing Crudup the use of
a cane. Id. The only indication regarding permission for use of a cane by Crudup was that “he
had obtained permission to use a cane temporarily for a visit to court, but had not returned the
cane.” Id.
Webster states that the “matter came to a head on September 1, 2016,” when he
encountered Crudup in the property room and asked for the cane. Id. Crudup initially refused,
but after Webster told him he would get the cane back if he could produce paperwork authorizing
him to have it, Crudup gave Webster the cane. Id. The cane was then confiscated because
Crudup could not demonstrate that the cane had been authorized. Id. In addition to the concerns
raised by correctional staff, Webster relates that medical staff also noted that Crudup acted as
though he did not need a cane during medical appointments. Id. at p. 3. After Crudup filed
several complaints regarding the removal of the cane, medical staff approved his use of a cane on
October 14, 2016, and the cane was returned to him. Id., see also ECF 27-2 at p. 6.
Webster has presented evidence, which Crudup does not dispute, that establishes that
Crudup did not suffer the sort of serious medical need that was so obvious a lay person like

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Webster must have known he required a cane. Crudup himself admitted he was shadow-boxing,
which prompted the questions into why he had or needed a cane.

See ECF 6-1 at p. 2

(Adjustment hearing record). In addition, Webster provides undisputed evidence that there was
no valid medical order requiring Crudup‟s use of a cane at the time it was confiscated. ECF 27-3
at pp. 2 & 4, see also ECF 27-2 at p.75. The later determination that Crudup could benefit from
the use of a cane has no bearing on Webster‟s subjective knowledge at the time he confiscated
the cane.
With respect to defendant Tabulov, the only allegation against her is that she would not
provide Crudup with a cane after the unauthorized cane was confiscated. Crudup does not allege
that Tabulov was aware of a serious medical need that required issuance of a cane or that her
failure to issue a cane inflicted unnecessary pain or caused his condition to worsen. Indeed,
Crudup provides no details regarding Tabulov‟s alleged wrong-doing and does not dispute her
assertion that she was not involved in his care or treatment until 35 days after his cane was
confiscated. ECF 24-4 at p. 18 – 20 (Oct. 6, 2016 Chronic Care Visit record). Tabulov then
ordered a cane for Crudup‟s use days after she examined him and noted that a recent knee x-ray
showed degenerative joint disease and an MRI of his spine demonstrated bulging discs and
spinal stenosis. Id. at p. 26 (October 14, 2016 Chart update).
Tabulov states that Crudup‟s own exhibits establish that he was seen by custody staff
exercising without using his cane; he was seen standing at the infirmary door waiting for food
and medication without use of a cane; and he was offered treatment options for his knee that he
declined. See ECF 7-1; see also ECF 24-4 at p. 3. Crudup‟s medical limitation restricted him to
“moderate activity” defined as refraining from “heavy lifting (50 pounds)” and from “prolonged
physical exertion” and permitting job assignments such as “housekeeping, kitchen, laundry, etc.”

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ECF 24-3 at p. 1. Tabulov further states that medical records indicate that Crudup had admitted
on July 23, 2016, that he had “been using a cane for three months but state[d] that he can do
without it if he needs to.” Id. To the extent Crudup claims there was an undue delay in
providing him with another cane after the one he had was confiscated, Tabulov presents
evidence, which is undisputed by Crudup, indicating the only delay involved was simply the time
needed to perform medical evaluations to determine if a cane was indicated for Crudup‟s
condition and during the interim, Crudup received other forms of pain treatment.
It is clear that Webster and Tabulov are entitled to summary judgment in their favor. It is
also clear that had Crudup named different correctional or medical officials in his complaint,
they too would be entitled to judgment in their favor. The confiscation of Crudup‟s cane and the
delay in providing him with another one does not, under the circumstances of this case, state a
constitutional claim. To the extent that Crudup is alleging a negligence claim based on state law,
this court declines to accept supplemental jurisdiction over that claim. See Carnegie Mellon
Univ. v. Cohill, 484 U.S. 343, 350 (1988) (citing 28 U.S.C. § 1367(c)) (“A federal court may
decline to exercise supplemental jurisdiction over state law claims where it has dismissed the
federal claim.”)
A separate order follows.

September 25, 2017
Date

____________/s/________________
James K. Bredar
United States District Judge

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