Alvarez v. Maryland Department of Corrections et al
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 3/8/2018. (c/m 3/8/2018 aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BRUMAN STALIN ALVAREZ, #257-455
Civil Action No. PX-17-141
MARYLAND DEPARMENT OF
CORRECTIONS, et al.
DAVID BLUMBERG, Maryland
Commissioner of Corrections, in his official
GREGG L. HERSHBERGER, in his individual
and official capacities or actions under color *
of law as Commissioner of Correction for
the Northern Region,
SCOTT OAKLEY, in his individual and
and official capacities for actions under
color of law as Executive Director of the
Maryland Department of Corrections,
ROBIN WOOLFORD, in his individual and
official capacities for actions under color
law as Deputy Director of Division of
RICHARD J. GRAHAM, in his individual
and official capacities for actions under
color of law as Warden of Western
Correctional Institution, Cumberland,
DENISE GELSINGER, in her individual
and official capacities for actions under
color of law as Assistant Warden at
Western Correctional Institution,
SHARON BAUCOM, M.D., in her
individual and official capacities for
actions under color of law MD DOC
Director of Clinical Services,
SERGEANT L. LASHER, CO III, in her
individual and official capacities for a
actions under color of law as Correctional
Officer, Western Correctional Institution,
WEXFORD HEALTH SOURCES, INC.,
The Clerk will amend the docket to reflect the correct names of Defendants.
ASRESAHEGN GETACHEW, M.D., in his
individual and official capacities for actions
under color of law as Medical Director,
Wexford Health Sources, Inc.,
ROBUSTIANO BARRERA, M.D., In his
individual and official capacities for actions
under color of law as Plaintiff's treating
physician Western Correctional
JANICE GILMORE, Medical Supervisor,
in her individual and official capacities
for actions under color of law as Medical
Staff, Western Correctional Institution,
DAYENA CORCORAN, Commissioner
Bruman Stalin Alvarez is an inmate at Western Correctional Institution (WCI) and in the
Custody of the Maryland Department of Public Safety and Correctional Services (DPSCS).
Pending before the Court is Alvarez’s Complaint pursuant to 42 U.S.C. § 1983, which raises
Eighth Amendment claims arising from Alvarez’ asserted lack of adequate medical care, as well
as violations of the Equal Protection clause of the Fourteenth Amendment, Title II of the
Americans with Disabilities Act (“ADA”) as amended, and § 504 of the Rehabilitation Act of
1973. Alvarez also brings state common law claims for medical malpractice.
Defendants Wexford Health Sources, Inc., Asresahegn Getachew, M.D., Robustiano
Barrera, M.D., and Janice Gilmore2 (collectively, “the Medical Defendants”) have filed a Motion
to Dismiss, or Alternatively, a Motion for Summary Judgment. ECF No. 17. The Maryland
Division of Correction (DOC), David Blumberg, Chairman of the Maryland Parole Commission,
The Court takes judicial notice that Ms. Gilmore died since this case was filed. See Williamson v. Graham, et al.,
Civil Action No. GLR-1915 , ECF No. 31 (Suggestion of Death). Counsel has not moved for Gilmore’s dismissal
from this case.
Gregg L. Hershberger, former Commissioner of Correction for the Northern Region, Robin
Woolford, Deputy Director of the Inmate Grievance Office (IGO), Richard J. Graham, Warden
at the Western Correctional Institution (WCI), Denise Gelsinger, former Assistant Warden of
WCI, Sgt. Lisa L. Lasher, WCI, and Sharon Baucom, M.D., Director of Clinical Services for the
Maryland DOC (collectively, “the State Defendants”) also have filed a Motion to Dismiss or, in
the Alternative, Motion for Summary Judgment. ECF No. 24. Alvarez has filed an opposition
(ECF No. 30) to which the Medical Defendants replied. ECF No 33. Alvarez filed a Surreply.
ECF No. 34.
Also under review are Alvarez’s Motion for Leave to File an Amended Complaint (ECF
No. 31), Commissioner of Correction Dayena Corcoran’s Motion to join the State Defendants’
Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 37), and
Alvarez’s recently filed Motion for a Preliminary Injunction and Temporary Restraining Order.
ECF No. 39. In his Motion for Leave to File an Amended Complaint, Alvarez asks to substitute
Dayena Corcoran, Commissioner of Correction, in place of David Blumberg. ECF No. 31; see
also Alvarez Opp. ECF No. 30 n.1 (stating Alvarez filed a Motion to Voluntarily Dismiss
Blumberg, an apparent reference to the intent expressed in the Motion for Leave to File an
Amended Complaint). The Court grants his request. Dayena Corcoran is added as a defendant
and David Blumberg will be dismissed from this case. Corcoran’s Motion to Join the State
Defendants’ Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No.
37), is granted. Alvarez’s Motion for a Preliminary Injunction and Temporary Restraining Order
will is denied for the reasons discussed in this Memorandum Opinion.
The matter is briefed and the Court finds a hearing unnecessary at this time. Local Rule
105.6 (D. Md. 2016). For the reasons stated below, Defendants’ Motions to Dismiss or in the
Alternative Summary Judgement are GRANTED in part and DENIED in part.
At the heart of Alvarez’s forty-seven page Complaint is his longstanding osteoarthritis in
his right knee arising from Medical Defendants’ alleged failure to treat his meniscus tear.
Compl. ECF No. 1 at 2.
Accordingly, the Court considers Alvarez’s medical records
documenting his treatment during his incarceration and to which Alvarez raises no objection.
On March 27, 2014, Alvarez, an inmate at Jessup Correctional Institution (JCI) at that
time, underwent outpatient surgery on his right knee at Bon Secours Hospital. Compl. ECF No.
1 at 8 ¶ 4, Med. Def. Ex. ECF No. 17-2 at 19, 27. Alvarez was seen at JCI by John Moss, PA, on
April 2, 2014, for post-surgical follow-up. Moss noted that Alvarez was “doing well with no
pain” but had some continued back pain. Med. Def. Ex. ECF No. 17-2 at 10.
Alvarez was then seen in the orthopedic clinic at Bon Secours Hospital on May 20, 2014
and July 29, 2014. Med. Def. Ex ECF No. 17-2 at 13, 15; Pl. Ex. ECF No. 1-3. During the July
29, 2014, medical visit, Alvarez was diagnosed with arthritis in his right knee. ECF No. 17-2 at
13, 15; Pl. Ex. ECF No. 1-3 Alvarez maintains that Dr. Ashok Krishnaswamy3 diagnosed him
post-surgically as physically disabled and recommended an MRI and a cane for him. Compl.
ECF No. 1 at 8 ¶ 4; Pl. Ex. ECF Nos. 1-3 (medical records). Krishnaswamy also recommended
placing Alvarez in a cell with handrails. Compl. ECF No. 1 at 8 ¶ 4; Pl. Ex. ECF No. 1-3
(medical records). Alvarez claims that post-surgical physical therapy orders were not followed,
Ashok Krishnaswamy M.D., is an orthopedic physician on the staff at Bon Secours Hospital in Baltimore,
[Orthopedic%20Surgery]&f:provider-type-facet=[Physician] (last visited February 21, 2018).
and approximately seven weeks after the surgery, he “continued to complain” of his right knee
“popping out of place, locking, and giving out.” Compl. ECF No. 1 at 8 ¶ 4.
On August 1, 2014, John Moss, PA, saw Alvarez, noting that the orthopedist at Bon
Secours recommended physical therapy for Alvarez’s right knee. Med Def. Ex. ECF No. 17-2 at
21. Moss gave Alvarez an elastic knee brace and a submitted a consultation for physical therapy.
Med Def. Ex. ECF No. 17-2 at 15, 16, 21. On August 12, 2014, Moss wrote an addendum to the
medical record which indicated that, upon Alvarez’s upon return to JCI from the Orthopedic
Clinic on July 29, 2014, he was told that his housing in did not include any cells with rails. Med
Def. Ex. ECF No. 17-2 at 17.
Moss told Alvarez that he would be placed in housing with
handrails after he finished his time in segregation. Med Def. Ex. ECF No. 17-2 at 17.
On September 15, 2014, Dr. Robustiano Barerra noted in connection with Alvarez’s
transfer from JCI to WCI the following regarding Alvarez’s medical status:
He comes in walking with a can[e]. Gave a history of surgery to the left knee
miniscus [sic]. He is wearing an unloader brace on the left leg. He complains of
right knee pain as well and was about to have an MRI of the right knee but he was
moved to this institution prior to the MRI being done. Patient will be rescheduled
for the MRI. The right knee gives out and causes the patient to fall. He cannot
tolerate NSAID because of his history of GI bleeding.
Med. Def. Ex. ECF No. 17-2 at 23.
Alvarez states that an October 10, 2014, an MRI of his right knee revealed a “buckethandle tear to the multidirectional medial and radial meniscus with degenerative
chrondromalasia of the right knee.” Compl. ECF No. 1 at 8 ¶ 5; see also Med Def. Ex. ECF No.
17-2 at 25. Alvarez asserts that Dr. Krishaswamy, Dr. Roy J. Carls,4 and Dr. Barrera “strongly
recommended” that arthroscopic surgery be performed “soon.” Compl. ECF No. 1 at 8 ¶ 5; Pl.
Ex. ECF Nos. 1-3 at 3 (medical record). Alvarez claims that since September of 2014, Dr.
Roy J. Carls, M.D. is an orthopedic surgeon on the staff at Western Maryland Health System (WMHS).
See https://www.wmhs.com/orthopedic-surgery-team.html (last visited February 21, 2018).
Krisnaswamy and Dr. Carls have recommended meniscus repair surgery for him on four
occasions based on the MRI. Compl. ECF No. 1 at 13 ¶ 48, at 14-15 ¶¶ 51- 54.
On October 16, 2014, Dr. Barrera met with Alvarez to advise that Alvarez would receive
a medical consultation with Dr. Carls, although Alvarez’ medical notes for the same date
indicates that Alvarez was referred to Dr. Krishnaswamy. Med Def. Ex. ECF No. 17-2 at 25, 27.
Barrera also noted that he would review Alvarez’ medical chart to evaluate Alverez’s request for
a cell with handicap accommodations. Med Def. Ex. ECF No. 17-2 at 25. On October 22, 2014,
Barrera approved Alvarez for a grab bar near the commode because his knee “is very unstable.”
Med Def. Ex. ECF No. 17-2 at 28.
On November 20, 2014, Barrera made the following observations as to Alverez’s
ongoing knee problems:
Patient had an orthroscopic [sic] surgery at BSH [Bon Secours Hospital] and was
unsuccessful. A repeat MRI was done on 10-10-14 at WMHS [Western Maryland
Health System] and showed [h]orizontal tear, non-displaced, posterior horn,
medial miniscus [sic], and a radial tear lateral miniscus [sic] with some
degenerative changes. Patient was advised of the findings and he reports that his
knee (right) still pops out of place and gives him severe pain. Knee brace is not
helping. He saw Dr. [K]rishnaswamy and advised him that he needs another
surgery. Patient prefers to be done by WMHS doctor. I will place a consult base
[sic] on this.
Med Def. Ex. ECF No. 17-2 at 29.
Despite Barrera’s clear recommendation that a second surgery be performed on Alvarez’
knee, Alvarez avers that in April of 2015, Dr. Getechew denied him arthroscopic surgery
“because it cost too much money” and recommended physical therapy and a knee brace instead.
Compl. ECF No. 1 at 15 ¶ 53. Notably, the Medical Defendants marshal no evidence to the
contrary. Alvarez also asserts that Dr. Getachew told him on August 25, 2015 that “surgeons
like to chop-up people like me and charge lots of money; he recommended PT [physical therapy]
and a custom made brace.” Compl. ECF No. 1 at 15 ¶ 55. Alvarez’s medical records document
Alvarez’ telemedicine consultation with Dr. Getachew as follows:
Patient was presented to Dr. Getachew for ruptured miniscus [sic]. Dr. Getachew
explained in detail the pros and cons of orthoscopic surgery. He suggest[e]d to do
physical therapy to strengthen the [q]uadricep muscles and to request for [sic] a
knee stabilizer. The patient understood all Dr. Getachew’s explanation and
agreed with the suggesti[ion]. Will do consult for PT and knee stabilizer.
Med. Def. Ex. ECF No. 17-2 at 31.
On April 30, 2015, Alvarez met with Stephen D. Ryan for a physical therapy evaluation.
Med. Def. Ex. ECF No. 17-2 at 32.
Ryan reported that Alvarez walked with a cane and his gait
was “mildly antalgic but stable.” Ryan listed the goals of physical therapy to include extension
of the left knee, increasing strength in the “quads,” and establishing a self-management program
for Alvarez. Med. Def. Ex. ECF No. 17-2 at 32. On May 12, 2015, Alvarez had one physical
therapy session. Med. Def. Ex. ECF No. 17-2 at 33.
On June 5, 2015, Dr. Barrera reported that Alvarez was presented “to consultant via
telemed and recom[m]ended knee brace and physical therapy.” Med. Def. Ex. ECF No. 17-2 at
Barrera noted that neither the knee brace nor physical therapy was helping Alvarez who
continued to walk with a cane and a limp. “Pain is not presently controlled with the present dose
of gabapentin. He cannot use NSAID since it caused GI bleeding.” Med. Def. Ex. ECF No. 17-2
at 34. Barrera also renewed Alvarez’s prescription for Gabapentin 800 mg. to be taken twice
daily and add Tylenol with codeine to be taken when necessary. Med. Def. Ex. ECF No. 17-2 at
On the same day, June 5, 2015, Dr. Carls saw Alvarez for an orthopedic consultation for
right knee pain and recommended arthroscopic surgery for him. Carls noted Alvarez had multi-
directional instability and a meniscus tear. Med. Def. Ex. ECF No. 17-2 at 36. Dr. Carls’ report
reads in pertinent part:
ASSESSMENT: Right knee giving way symptoms with evidence of medial and
lateral meniscus tears. Even though he had had a prior arthroscopy he is still
having significant mechanical symptoms and there is evidence to suggest medial
and lateral recurrent meniscus tears.
PLAN: Since he has not gotten better with any other non-surgical approach the
recommendation is a revision right knee arthroscopy. In the meantime I strongly
recommend to Bruman that he continue to work on quadriceps strengthening
exercises to get his knee as strong as possible. He should also continue using his
knee brace with can be very helpful. He understands the risks and benefits
associated with surgery and he desires to proceed. When this is approved this can
be done at Western Maryland Health System [WMHS] as an outpatient procedure.
Med. Def. Ex. ECF No. 17-2 at 37.
On June 24, 2015, Alvarez underwent preoperative testing for a July 1, 2015, scheduled
surgery with Dr. Carls. Med. Def. Ex. ECF No. 17-2 at 38. On June 25, 2015, Dr. Barrera saw
Alvarez for complaints of back pain. Med. Def. Ex. ECF No. 17-2 at 39. Barrera entered the
following notes on the medical chart:
Patient has chronic back pain compatible with deg. disc disease at the level
L%=S1 [sic]. His pain however was controlled until the Neurontin was not
approved. His back pain recurred and although he is approved for knee
surgeryn[sic] the patient would like to wait until he resolves his back pain. I will
therefore refer him back to Dr. Carls. His radicular pain shoots to his left toe.
Patient gives a history of GI bleeding from using NSAID, currently however, bec.
His Neurontin was not approved, he is using his ibeuprofen sparingly for pain. I
will request Neurontin again.
Med. Def. Ex. ECF No. 17-2 at 39.
Alvarez asserts that he once again asked for the knee surgery after his back pain subsided.
Alvarez Pl. Opp. ECF No. 31 at 11. Alvarez claims Dr. Barrera informed him that Dr. Getachew
once again denied him the surgery. Id.
On August 25, 2015, Alvarez’s knee problem was again presented to Dr. Getachew
during a telemedicine conference. Medical notes from the conference document that Alvarez’
“knee dislocates depending on the way he walks.” Getachew recommended a knee brace and
physical therapy for Alvarez. Med. Def. Ex. ECF No. 17-2 at 41; see also State Def. Ex. ECF
No. 17-2 at 69, 70 (knee orthosis prescribed on September 30, 2015 awaiting authorization).
Alvarez claims Getachew refused to approve surgery for him because it was “costly to
Wexford.” Pl. Opp. ECF No. 31 at 11. When Getachew was informed that the surgery was
already approved for June of 2015, he responded “June’s approval was done in error.” Id.
Alvarez also informed Getachew that he had already been provided physical therapy and a knee
brace and had showed no improvement. Id. Dr. Getachew said he was ordering a better brace
this time. Alvarez states that he received a custom brace approximately one year later but it did
not help him. Id. at 11-12.
Several months later, on December 17, 2015, Dr. Barrera saw Alvarez for complaints of
back and knee pain.
Barrera diagnosed Alvarez with degenerative disc disease and was
prescribed 800 mg. of Neurontin to be taken twice daily.
Further, Barrera also diagnosed
degenerative knee disease, and noted that Alvarez walks with a cane, and was advised to use
knee braces. Although Alvarez requested assignment to a properly outfitted cell to accommodate
his unsteady gate, Barrera advised Alvarez to first try using a knee brace, the issuance of which
was still pending approval. In addition, Barrera indicated that he would prescribe amitriptyline
10mg for Alvarez. Med. Def. Ex. ECF No. 17-2 at 42.
On September 9, 2016, Carla Buck, RN, saw Alvarez for his complaints of low back
pain. Buck observed that Alvarez walked with a cane and a limp and referred him for pain
management. Med. Def. Ex. ECF No. 17-2 at 43. On December 13, 2016,5 Alvarez’ right knee
gave out, causing him to drop a cup of hot coffee on his right foot. He claims he sustained third
degree burns on his foot. Supp. Compl. ECF No. 6.
Dr. Carls saw Alvarez on February 23, 2017. Dr. Carls’ entry on the medical chart
includes the following:
Broman [sic] is coming back today for his right knee. He notes that he is feeling
more of a “pop, pop, pop” whenever he moves the knee. He feels very unstable
with it. He prefers to use a wheelchair for longer distances and uses a cane for
shorter distances. His left knee also gives him pain and he has had multiple
surgeries on that in the past but he is specifically here for his right knee.
Med. Def. Ex. ECF No. 17-2 at 47.
Dr. Carls assessed Alvarez as “ACL deficient right knee.” Med. Def. Ex. ECF No. 17-2
at 47. Carls recommended ordering an MRI and that Alvarez use a knee brace whenever he is
“up and around” because of “his history [of a] likely meniscus pathology as well as some early
arthritic changes in his knee as well.” Med. Def. Ex. ECF No. 17-2 at 47. Carls further
recommended that Alvarez continue his quadriceps exercises and see him after an MRI that was
The MRI was performed on April 10, 2017. Med. Def. Ex. ECF No. 17-2 at 48. The
MRI report notes in Alvarez’s right knee “moderate osteoarthritis with a radial tear in the body
of the medial meniscus. Alternatively, this truncated appearance could be due to a previous
partial medial meniscectomy.” Med. Def. Ex. ECF No. 17-2 at 48.
On June 16, 2017, Alvarez was approved “for ortho procedure.” State Def. Ex. ECF No.
17-2 at 48. ECF 24-6 at 59, 62, 77.6 Alvarez corroborates via declaration that his surgery was
The record shows the date of the incident was December 11 or 12, 2016. Supp. Comp. ECF No. 6 at 11; State
Defs. Ex. ECF No. 24-6 at 8.
The State Defendants include medical records not filed by the Medical Defendants.
performed on his right knee in “late 2017.” Declaration of Bruman Alvarez, ECF No. 39-1 at 1 ¶
Alvarez’s Complaint centers on his persistent pain and problems with walking as a result
of his right knee. Alvarez more particularly argues that due to the delay in his knee surgery, he
has suffered permanent knee damage and associated medical problems such as sciatic nerve
injury to his lower back and hips, meniscus tears in his left knee, and osteoarthritis in both knees.
Compl. ECF No. 1 at 8-9. Alvarez also asserts that the defendant medical doctors deliberately
ignored the prevailing medical standards of care for treating meniscus tears and acted with
deliberate indifference to his serious medical needs. Compl. ECF No. 1 at 14 ¶ 50. Drs.
Getachew and Barrera, and Ms. Janice Gilmore, argues Alvarez, knew that arthroscopy surgery
had been recommended by Dr. Krishaswamy in November of 2014 and Dr. Carls in January of
2015 and June of 2015, and refused to provide the surgery. Compl. ECF No. 1 at 18 ¶ 73.
Alvarez also faults the DOC and its agents and contractors for interfering, delaying, or
denying him arthroscopic surgery by requiring non-formulary pain medicine treatment for his
meniscus tear and withholding treatment until his symptoms of severe degenerative joint disease
worsened. Compl. ECF No. 1 at 17 ¶47; at 19 ¶¶ 76-77. Alvarez more specifically asserts that
DOC’s policies against medically warranted arthroscopy surgery for meniscus tears violates his
right to equal protection. Compl. ECF No. 1 at 17 ¶¶ 66-69.
Alvarez also asserts a variety of other failures on the part of DOC personnel. Alvarez
faults Sgt. Lasher for denying him a properly equipped cell to accommodate his knee injury.7
On February 17, 2015, Alvarez filed a grievance, ARP WCI 0281-15, alleging that Sgt. Lasher discriminated and
retaliated against him by interfering with his medical treatment in that she moved him from a lower to a top tier.
State Def. Ex. ECF No. 24-11. The ARP was dismissed at the institutional and headquarters levels after
investigation. Alvarez was advised that custody staff have no authority over medical decisions. After a medical staff
reassessed Alvarez, a medical order was issued to house him on a bottom tier bunk for three months. State Def. Ex.
ECF No. 24-11 at 6.
Alvarez also asserts that Lasher and Gilmore collectively discontinued his feed-in status Alvarez
claims on January 14, 2015 after he slipped and fell on ice, and despite medical orders requiring
medical feed status for three months. Compl. ECF No. 1 at 44 ¶¶ 198 - 203.
As relief, Alvarez requests include immediate arthroscopic surgery on his right knee and
a meniscus implant if such treatment accords with the AAOS/AAM/ NEJOM standard of care,
and without first requiring him to manifest extreme degenerative disease. Alvarez also seeks
punitive and compensatory damages, and other injunctive and declaratory relief. ECF No. 1 at 46
STANDARD OF REVIEW
A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of a complaint. When evaluating a 12(b)(6) motion to dismiss, a plaintiff’s wellpleaded allegations are accepted as true and the complaint is viewed in the light most favorable
to the plaintiff. Accordingly, a court “must accept as true all of the factual allegations contained
in the complaint” and must “draw all reasonable inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir.
2011); see Hall v. DirectTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017).
Rule 56 of the Federal Rules of Civil Procedure provides that a 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.” Fed. R. Civ. P. 56(c). A material fact
is one that “might affect the outcome of the suit under the governing law.” Libertarian Party of
Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). A genuine issue of disputed material fact exists
“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary
judgment, the Court must determine whether sufficient evidence exists on a claimed factual
dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249.
In this analysis, a court must consider the facts and all reasonable inferences in the light
most favorable to the nonmoving party. Libertarian Party of Va., 718 F.3d at 312; see also Scott
v. Harris, 550 U.S. 372, 378 (2007). A court “must not weigh evidence or make credibility
determinations.” Foster v. University of Md.-Eastern Shore, 787 F.3d 243, 248 (4th Cir. 2015)
(citing Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007)). This Court
must also not allow factually unsupported claims and defenses to go to trial. Drewitt v. Pratt, 999
F.2d 774, 778-79 (4th Cir. 1993). If the evidence presented by the nonmoving party is merely
colorable, or is not significantly probative, summary judgment must be granted. Anderson, 477
U.S. at 249-50. A party opposing summary judgment must “do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986); see also In re Apex Express Corp., 190 F.3d 624, 633 (4th Cir.
1999). As this Court has previously explained, a “party cannot create a genuine dispute of
material fact through mere speculation or compilation of inferences.” Shin v. Shalala, 166 F.
Supp. 2d 373, 375 (D. Md. 2001) (citations omitted).
This Court is mindful that Alvarez is proceeding pro se. A federal court must liberally
construe pro se pleadings to allow the development of potentially meritorious cases. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Cruz v. Beto, 405 U.S. 319 (1972). Liberal
construction does not mean, however, that this Court can ignore a clear failure in the pleadings to
allege facts sufficient to state a claim. See Weller v. Department of Social Services, 901 F.2d
387, 391 (4th Cir. 1990). Put succinctly, a court cannot assume a genuine issue of material fact
where none exists. Fed.R.Civ.P. 56(c).
Claims Against the Medical Defendants
A. Medical Negligence
To the extent that Alvarez intends to raise claims based on alleged medical malpractice or
negligence by Wexford providers, the claims cannot proceed at this stage. Alvarez must first file
any such claims pursuant to the Maryland Health Care Malpractice Claims Act (“the Act”), Md.
Code Ann., Cts. & Jud. Proc. § 3-2A-01, et seq., which establishes the procedure for medical
malpractice actions. Claims against a health provider for medical injury must be submitted to the
Health Care Alternative Dispute Resolution Office as a condition precedent to any judicial
action. See id. at § 3-2A-02; see also Roberts v. Suburban Hosp. Assoc., Inc., 73 Md. App. 1, 3
(1987); Davison v. Sinai Hosp. of Balt. Inc., 462 F. Supp. 778, 779-81 (D. Md. 1978), aff'd, 617
F.2d 361 (4th Cir. 1980).
When assessing whether a claim sounds in medical malpractice, a court is required to
focus on “whether the claim is based on the rendering or failure to render health care and not on
the label placed on the claim.” Brown v. Rabbit, 300 Md. 171, 175 (1984). Noncompliance with
the Act requires dismissal without prejudice to refile once the plaintiff has exhausted the Act’s
remedies. See Roberts, 73 Md. App. at 6; see also Davison, 462 F. Supp. at 781. Alvarez’s
claims, to the extent they are construed as claims of medical negligence or malpractice, are
subject to the Act’s requirements. Because Alvarez has failed to demonstrate that he complied
with the Act’s requirements, his state claims will be dismissed without prejudice. By separate
order, the Court will appoint counsel to represent Mr. Alvarez who can explore compliance with
the Act on Alvarez’ behalf.
B. Eighth Amendment Claims
The Eighth Amendment of the United States Constitution 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. Setter, 501 U.S. 294, 297 (1991).
To state an Eighth Amendment claim for denial of medical care, a plaintiff must demonstrate that
defendants’ acts or omissions 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).
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 (internal quotation marks and ellipses omitted).
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. 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), (quoting Farmer, 511 U.S. at
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.” Farmer, 511 U.S.
at 844. Reasonableness of the actions taken must be judged in light of the risk known to the
defendant at the time. Brown v. Harris, 240 F. 3d 383, 390 (4th Cir. 2000); see also Jackson v.
Lightsey, 775 F.3d 170, 179 (4th Cir. 2014). An inmate does not have a constitutional right
treatment of choice. Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Moreover, an inmate’s
disagreements with medical staff over the type or extent of medical treatment, standing alone, do
not support a constitutional claim. See Estelle, 429 U.S. at 105-06; Wright v. Collins, 766 F.2d
841, 849 (4th Cir. 1985).
Further, “any 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).
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; aff'd in pertinent part by Sharpe v. S.C. Dep't of
Corr., 621 F. App’x 732 (Mem) (4th Cir. 2015)). Adequacy of 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).
1. Claims against Dr. Getachew, Dr. Barrera, and Ms. Gilmore
The Medical Defendants’ verified exhibits demonstrate, and Alvarez does not dispute,
that Alvarez was evaluated by two orthopedists, Dr. Krishnaswamy and Dr. Carls, in 2014 and
2015, both of whom recommended knee surgery. Alvarez was scheduled for knee surgery but,
on June 25, 2015, shortly before surgery was to take place, he decided to wait until his back pain
resolved and thereafter he would be re-referred to Dr. Carls. Med Defs. Ex. ECF No. 17-2 at 41.
However, nothing in the medical record suggests that any effort was made after that time to
reschedule the surgery. Nor is there any indication that Alvarez’s knee condition had changed so
that the surgery was no longer needed. It is also plain from the record that Alvarez continued to
complain of knee pain, and his concerns were known to Dr. Getachew and Barrera. Med Defs.
Ex. ECF No. 17-2 at 39, 41, 42.
Moreover, Dr. Getachew does not contest that he characterized the approval of the June
2015 surgery as “an error.” Dr. Getachew also prescribed a brace and physical therapy in lieu of
surgery. However, once again, the record is bereft of any evidence that Alvarez received the
brace or therapy, or whether either alternative ameliorated his knee problems.
according to Barrera, previous attempts at using a brace and physical therapy did not help. Med
Defs. Ex. ECF No. 17-2 at 34.
What is more, the medical record demonstrates Drs. Getachew and Barrera were actively
involved in Alvarez’ care, and had already participated in decisions to schedule knee surgery on
July 1, 2015. See e.g. Med. Def. Ex. ECF No. 17-2 at 41, 42, 45-46. But then inexplicably,
Alvarez waited approximately twenty months before he was seen again by Dr. Carls on February
23, 2017 to reschedule the surgery. Med. Def. Ex. ECF No. 17-2 at 48. Thus, Alvarez waited at
least two years to have his surgery. These delays in the face of consensus that Alvarez needed
surgery in June of 2015, combined with his continued complaints of knee pain and conspicuous
mobility problems, is sufficient to create a genuine issue of disputed fact that Defendants
Getachew and Barrera were subjectively and objectively reckless in the face of Barrera’s serious
medical condition. Further, Getachew and Barrera’s prolonged inaction despite actually knowing
the severity of Alvarez longstanding knee problems, further presents a genuine issue of disputed
fact as to whether they were deliberately indifferent to Alvarez’s serious medical needs in
violation of his Eighth Amendment rights. Summary judgment absent discovery is simply
inappropriate as to Dr. Getachew or Dr. Barrera. The motion is denied.
As to Defendant Janice Gilmore, a nurse and medical administrator, Alvarez asserts that
Gilmore denied him a cell that was equipped to provide him with handrails to accommodate
medical needs.8 Alvarez also claims that Gilmore cancelled his feed-in cell order at the request of
a correctional officer, and he subsequently fell when walking to the dining hall. Sgt. Lisa
Lasher’s declaration (ECF No. 24-5) corroborates that Lasher asked Gilmore to cancel Alvarez’s
feed-in status, albeit according to Lasher after Alvarez was observed walking to the commissary.
However, when evaluating Alvarez’s allegations in the light most favorable to him, as this Court
must at the summary judgment stage, genuine issues of material fact exist as to whether Gilmore
acted with deliberate indifference to Alvarez’s serious medical needs when she denied him an
accessible cell with handrails. Summary judgment is accordingly denied as to claims against
2. Claims Against Wexford
Wexford, a private contractor that provides health care at correctional facilities, argues
that dismissal of the claims against it is warranted because the doctrine of respondeat superior
Sgt. Lisa Lasher explains in her declaration that the medical department assigns accessible cells designed to
accommodate physical disabilities. Lasher Decl., State Def. Ex. ECF No. 24-5 ¶ 3.
does not apply to § 1983 claims. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no
respondeat superior liability under § 1983). Generally, § 1983 liability is not available solely
upon a theory of respondeat superior. Wexford also seems to suggest that its status as a
“corporate entity” providing services through their employees or agents” alone insulates it from
liability Alvarez’ constitutional claims. ECF No. 10, p. 16.
Although the Court agrees that Wexford cannot be held liable under a theory of
respondeat superior, this does not mean that Wexford is forever beyond liability. A private
corporation is liable under § 1983 “when an official policy or custom of the corporation causes
the alleged deprivation of federal rights.” Austin v. Paramount Parks , 195 F.3d 715, 727-28 (4th
Cir. 1999). Known as Monell liability, Wexford can be held responsible as a corporate entity
stepping into the shoes of the municipality if “certain affirmative decisions of [Wexford’s]
individual policymaking officials, or in certain omissions on the part of policymaking officials
that manifest deliberate indifference to the rights of citizens.” Carter v. Morris, 164 F.3d 215,
218 (4th Cir. 1999); See also Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978).
Wexford’s custom or practice may provide an alternate route to Monell liability “even though
such a custom has not received formal approval through the body’s official decision making
channels,” Monell, 436 U.S. at 690. See also Powell v. Shopco Laurel Co., 678 F.2d 504, 506
(4th Cir. 1982); Clark v. Md. Dep't of Pub. Safety & Corr. Servs., 316 F. App’x 279, 282 (4th
At this stage in the proceedings, Alvarez’ § 1983 claim against Wexford survives. As a
pro se litigant, the Court is obligated to construe liberally Alvarez’ Complaint so that potentially
meritorious claims proceed.
The Complaint particularly alleges that Wexford contracted with
Maryland Department of Corrections to provide medical treatment to inmates; that Wexford has
demonstrated deliberate indifference to the serious medical needs of Alvarez, and critically, that
Wexford has implemented its unconstitutional policy or custom through its decisions of those in
supervisory power who provided direct care to Alvarez. Alvarez notes specifically that Drs.
Getachew as Medical Director for Wexford, and Baucom as Director of Clinical Services for
DOC, hold supervisory positions in connection with the provision of DOC medical services.
It is undisputed that Dr. Getachew was directly involved in assessing Alvarez’ medical
needs. Alvarez further contends that Getachew worked in concert with Baucom and Barrera who
both knew of Alvarez’ need for knee surgery as recommended by at least two orthopedic
surgeons. ECF No. 1.¶¶ 62, 73. Further, Alvarez avers that despite this actual knowledge, those
officials determined without medical explanation, and in violation of the applicable medical
standard of care, that Alvarez would not receive surgery.
Alvarez also pleads, perhaps in a less clear fashion, that the repeated denial of this
surgery is consistent with the DOC/Wexford policy of providing less-than the medical standard
of care for disorders of Alvarez’ kind, all in the name of “cost saving” and “administrative
convenience.” Id. ¶¶ 78-80. At this stage in the proceedings, and because the Court will appoint
Alvarez counsel to pursue claims on his behalf, Alvarez will be given the opportunity to engage
in discovery as to Wexford’s potential Monell liability.
3. Qualified Immunity
The Medical Defendants raise qualified immunity as an affirmative defense. Med. Defs.
Memorandum, ECF No. 17-1 at 8-9. “The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). A defendant is not entitled to summary judgment on the basis of qualified
immunity, however, if (1) a genuine issue of material fact exists regarding whether the
government official violated one of the plaintiff’s federally protected rights; and (2) the right at
issue was “clearly established” at the time of the events in question. See id. at 232.
The defense of qualified immunity will not bar Alvarez’ claims against the Medical
Defendants. As discussed above, genuine issues of disputed fact exist as to whether the Medical
Defendants violated Alvarez’ Eighth Amendment right to be free from cruel and unusual
punishment. Moreover, Alvarez’ right at issue is clearly established. Scinto v. Stansberry, 841
U.S. 219, 236 (2016) (“A prisoner’s right to adequate medical care and freedom from deliberate
indifference to medical needs has been clearly established by the Supreme Court and this Circuit
since at least 1976”). Accordingly, the Medical Defendants Motion to Dismiss or, in the
Alternative, for Summary Judgment will be denied.
Claims Against the State Defendants
The State Defendants raise respondeat superior, Eleventh Amendment immunity, and
qualified immunity as affirmative defenses. They also argue are entitled to dismissal of the
claims against them or summary judgment in their favor because Alvarez fails to set forth
sufficient facts to state a violation of constitutional or federal law. The Court addresses each in
A. ADA and Rehabilitation Act Claims
Alvarez’s cursory and conclusory references in the Complaint to the ADA and
Rehabilitation Act are insufficient to state a claim. Simply referring to the statutes without some
factual predicate establishing the State Defendants’ liability under the same will not suffice. See
Constantine v. George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005) (stating elements of
ADA and Rehabilitation Act claims); Heiko v. Columbo Savings Bank, F.S.B., 434 F.3d 249, 254
(4th Cir. 2006) (outlining elements of an ADA claim).9 Consequently, the ADA and
Rehabilitation Act claims will be dismissed.
B. Equal Protection and Due Process Claims
The Equal Protection Clause is “essentially a direction that all persons similarly situated
should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439
(1985). To succeed on an equal protection claim, a petitioner “must first demonstrate that he has
been treated differently from others with whom he is similarly situated and that the unequal
treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239
F.3d 648, 654 (4th Cir. 2001); see also Washington v. Davis, 426 U.S. 229, 239-42 (1976);
Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002). Alvarez asserts no facts to support an equal
protection claim against the State Defendants.
More particularly, nowhere does he allege
purposeful disparate treatment resulting from an impermissible discriminatory animus.
Accordingly, this claim will be dismissed.
C. Claims Against Defendants Baucom, Corcoran Gelsinger, Graham,
To establish liability under 42 U.S.C. § 1983, a plaintiff must show individual fault,
whether based upon the defendant’s own conduct or another’s conduct in executing the
defendant’s policies or customs. See Monell, 436 U.S. at 690; West v. Atkins, 815 F.2d 993, 996
To the extent Alvarez brings his ADA claims against Defendants in their individual capacities, “the ADA does not
authorize suit against individuals for violating its provisions.” King v. Schrader, No. DKC No. 16-3804, 2017 WL
3730335, at *3 (D. Md. August 30, 2017); Altevorgt v. Kirwan, No. WDQ–11–1061, 2012 WL 135283, at *5 (D.
Md. Jan. 13, 2012); Jones v. Sternheimer, 387 Fed. Appx. 366, 368 (4th Cir. 2010) (“Title VII, the ADA, and the
ADEA ... do not provide for causes of action against defendants in their individual capacities.”); Baird ex rel. Baird
v. Rose, 192 F.3d 462, 471-72 (4th Cir. 1999). To the extent Alvarez seeks damages against the State Defendants in
their official capacities, official-capacity claims are properly construed as “a suit against the official's office” and are
“no different from a suit against the State itself.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).
Maryland did not consent to suits under the ADA. McCray v. Md. Dep't of Transp., Md. Transit Admin., 741 F.3d
480, 483 (4th Cir. 2014).
(4th Cir. 1987), rev’d on other grounds, 487 U.S. 42 (1988) (no allegation of personal
involvement relevant to the claimed deprivation); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.
1977) (for an individual defendant to be held liable pursuant to § 1983, it must be “affirmatively
shown that the official charged acted personally in the deprivation of the plaintiff’s rights”),
quoting Bennett v. Gravelle, 323 F. Supp. 203, 214 (D. Md. 1971, aff’d, 451 F.2d 1011 (4th Cir.
1971). Liability cannot be established based on a theory of respondeat superior. See Love–Lane
v. Martin, 355 F.3d 766, 782 (4th Cir. 2004). Rather, for § 1983 claims liability of supervisory
officials “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 may attach under § 1983 if a plaintiff establishes: (1) “that 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) “that the supervisor’s response to that knowledge was so inadequate as to show deliberate
indifference to or tacit authorization of the alleged offensive practices”; and (3) “that there was
an affirmative causal link between the supervisor’s inaction and the particular constitutional
injury suffered by the plaintiff.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations and
internal quotation marks omitted).
Alvarez seeks to hold Defendants Baucom, Corcoran, Gelsinger, Graham, and
Hershberger liable for violating his rights under the Eighth Amendment, the Equal Protection
Clause and Due Process Clause of the Fourteenth Amendment, the ADA and the Rehabilitation
His attempts to assign personal involvement to Corcoran, Gelsinger, Graham,10 or
Hershberger is based on their roles in Alvarez’ DOC Administrative Review process or by virtue
of written correspondence surrounding his claims. None of this involvement plausibly avers
§1983 liability in this case. To the extent Alvarez seeks to hold each defendant responsible in his
or her supervisory capacity, see e.g. Compl. ECF No. 1 ¶ 26 (Graham), ¶ 27 (Gelsinger), ¶¶ 123129 (Hershberg, Corcoran), his allegations are insufficient to state a claim of supervisory
liability. The case is dismissed as to them.11
D. Maryland Division of Correction
Under the Eleventh Amendment to the United States Constitution, a state, its agencies
and departments are immune from suits in federal court brought by its citizens or the citizens of
another state, unless it consents. See Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89,
100 (1984). While the State of Maryland has waived its sovereign immunity for certain types of
cases brought in state courts, see Md. Code Ann., State Gov’t § 12-202(a), it has not waived its
immunity under the Eleventh Amendment to suit in federal court. Thus, Alvarez’s claims against
the Maryland Division of Correction, a state agency, are barred by the Eleventh Amendment.
E. Sergeant Lisa Lasher
Alvarez claims that Sgt. Lasher denied his request for handicap cell accommodations
ordered by physicians. ECF No. 1 at 9 ¶ 10. He does not, however, identify when he requested
Warden Graham, who is sued in his official capacity only, attests in his declaration that medical services at WCI
are provided by the private medical contractor. Declaration of Richard Graham, State Defs. Ex. ECF 24-4. Graham
has no personal involvement in providing medical care to any WCI inmate nor has he hindered access to medical
treatment. Graham states he has no authority to order the contractor’s medical staff to perform any particular
medical treatment or procedure. Graham is not licensed to practice medicine, has no responsibility under the
medical contract to monitors medical services provided to inmates, and defers to the expertise of medical staff to
provide medical treatment to inmates. Graham Decl. State Def. Ex. ECF No. 24-4.
Dr. Baucom, however, remains as a defendant in light of Alavarez’ averrments that she, as DOC Clinical Director,
worked in concert with Wexford Medical Services Director, Defendant Dr. Getachew and Dr. Barrera, to deny
Alvarez constitutionally adequate medical care in a deliberately indifferent manner. The Court will revisit the
propriety of her status as a defendant at the close of discovery.
the handicap cell or the nature of the accommodations requested. 12 He claims that Lasher called
Janice Gilmore, the medical department supervisor, on January 27, 2015 to request the
cancellation of his feed-in order because Alvarez, in Lasher’s view, could walk to the dinner
room for meals. As a result, the feed-in order was rescinded. Compl. ECF No. 1 at 44 ¶¶ 198200. Alvarez maintains that later “in the course of thus walking to the dinner room . . . on said
Defendant Lasher’s order,” Lasher “negligently” caused him to walk on the ice in the prison
compound and fall. Compl. ECF No. 1 at 44 ¶¶ 201, 204.13
In his opposition, Alvarez also asserts that Lasher retaliated against him for submitting
grievances against her. Pl. Opp. ECF No. 30-1. However, Alvarez does not raise this claim in
the Complaint and he cannot assert it in the first instance in his responsive pleadings. See
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th Cir. 2004) (emphasizing that the
“liberal pleading standard” of Rule 8 “does not afford plaintiffs with an opportunity to raise new
claims at the summary judgment stage”); see also Myland Labs., Inc. v Akzo, N.V., 770 F. Supp.
1053, 1068 (D. Md. 1991) (stating “it is axiomatic that the complaint may not be amended by
briefs in opposition to a motion to dismiss”)); see also Zachair Ltd. v. Driggs, 965 F. Supp. 741,
748 n.4 (D. Md. 1997) (stating that a plaintiff “is bound by the allegations contained in its
complaint and cannot, through the use of motion briefs, amend the complaint”), aff'd, 141 F.3d
1162 (4th Cir. 1998).
When John Moss, PA informed Alvarez that he would be placed in housing with handrails after he completed his
segregation time, Alvarez was an inmate at JCI. Med. Defs. Ex ECF No. 17-2 at 17.
Alvarez filed declarations with the Complaint from four inmates - James Tooles, #300-342, Ronald N. Jaskins,
#285-369, James Calhoun-El, #160-083, and Vaun Thomas-Bay, #230-137, who attest to serious mobility issues and
to denial or rescission of their disabled cell status without medical justification. Compl. Pla. Ex. ECF No. 1-5, at 1-4.
Tooles, Jaskins, and Calhoun-El assert that Sgt. Lasher is responsible for rescinding their handicap cell status.
Compl. Pla. Ex. ECF No. 1-5, at 1-3. To the extent that Alvarez complaint intended to raise claims on behalf of
other inmates, he may not so. Inmates v. Owens, 561 F.2d 560, 563 (4th Cir. 1977) (stating that a self-represented
party generally does not have standing to sue on behalf of others).
In any event, Sgt. Lasher, who apparently anticipated this reply, denies harassing or
retaliating against Alvarez, noting that DOC employees have no authority over medical
personnel or decisions. Lasher Decl., State Def. Ex. ECF No. 24-5 ¶ 4.
actions were premised on observations that Alvarez was able to walk to the commissary, thereby
refuting suggestions of deliberate indifference to Alvarez’s medical condition. Viewing the facts
alleged most favorably to Alvarez, Lasher, at most, acted negligently when she cancelled his
feed-in status. Alvarez does not aver sufficient facts to suggest that Lasher acted with requisite
deliberate indifference rising to the level of an Eighth Amendment claim. Accordingly, the
claims are dismissed as to Lasher.
F. Robin Woolford and Scott Oakley
Alvarez generally faults Robin Woolford, the Deputy Director of the Inmate Grievance
Office (IGO) and Scott Oakley, former Executive Director of the Inmate Grievance Office,14 for
their review of his grievances and appeals regarding his medical treatment. See e.g. Compl. ECF
No. 1 at 29 ¶¶ 133-134, at 30 ¶ 138, at 131 ¶ 139.
Alvarez filed nine grievances in the Inmate Grievance Office (IGO), six of which pertain
to matters relevant to his Complaint. Decl of Russell A. Neverdon, Sr. Executive Director, IGO,
ECF No. 18. Of those relevant here and reviewed by the IGO, (1) IGO No. 20150647 was a
grievance or “appeal” from ARP WCI-261-15, regarding Lasher transferring Alvarez from to a
bottom bunk as retaliation. The grievance was administratively dismissed as moot on May 4,
2015; (2) IGO No. 2015084 was a grievance or “appeal” from ARP WCI-281-15, and
Service has not been obtained on Scott Oakley. Russell A. Neverdon, Sr, is presently Executive Director of the
Alvarez also faults Defendants Corcoran, Graham, and Gelsinger for their role in reviewing ARP complaints at
the Warden level. Comp. ECF No. 1 at 30 ¶¶ 137, 138. 139 For the same reasons explained above, Alvarez states
no constitutional claim.
complained Alvarez’s move to a top bunk and denial of feed-in status.
The appeal was
administratively dismissed on July 15, 2015, for failure to state a claim for which administrative
relief can and should be granted; (3) IGO No. 20150998 was a grievance or “appeal” from ARP
WCI-320-15, which claimed Gilmore improperly cancelled his feed-in order, caused him to walk
in an icy area and slip, and he was being denied an MRI. The grievance was dismissed as
outside IGO jurisdiction because it was a complaint against contract medical not DOC
employees; (4) IGO No. 20152296 was a grievance or “appeal” from ARP WCI-1850-15, in
which Alvarez asserted medical staff had provided false information about ARP WCI-1595-15.
The IGO dismissed the claim for failure to state a claim for which administrative relief can and
should be granted; (5) IGO No. 20152445, which was filed on December 24, 2015, was a
grievance that alleged Dr. Getachew failed to provide Alvarez with proper treatment for his knee.
The grievance was dismissed as outside IGO jurisdiction because it was a complaint against
contract medical not DOC employees; (6) IGO No. 20170535 filed on April 6, 2017, was a
grievance that Alvarez received inadequate medical care for his knees, including failure to
schedule him for a torn meniscus repair.
The grievance was dismissed as outside IGO
jurisdiction because it was a complaint against contract medical personnel, not DOC employees.
“Section 1983 provides a remedy against any person who, acting under color of law,
deprives another of constitutional rights.” Bixler v. Harris, No. WDQ-12-1650, 2013 WL
2422892, at *5 (D. Md. June 3, 2013) (citing 42 U.S.C. § 1983). “Inmates have no constitutional
entitlement or due process interest in access to a grievance procedure.” Booker v. S.C. Dep't of
Corr., 855 F.3d 533, 541 (4th Cir. 2017) (discussing Adams v. Rice, 40 F.3d 72 (4th Cir. 1994));
see Robinson v. Wexford, No. ELH-17-1467, 2017 WL 4838785, at *3 (D. Md. Oct. 26, 2017)
(“[E]ven assuming, arguendo, that defendants ... did not satisfactorily investigate or respond to
plaintiff’s administrative grievances, no underlying constitutional claim has been stated.”).
Alvarez’s claims seem grounded in his disappointment with the outcome of his
grievances. But Alvarez has not stated a claim, nor marshalled evidence, to show that Woolford
or Oakley are medical providers or that they had authority to direct the medical care provided to
him or other inmates. Alvarez’s disagreement with the outcome of his grievances does not equate
with a violation of his rights to receive constitutionally adequate medical care or to due process.
Accordingly, this claim will be dismissed.16
G. Motion for Temporary Restraining Order or Preliminary Injunction
On January 16, 2018, Alvarez submitted a filing titled “Order to Show Cause for
Preliminary Injunction and Temporary Restraining Order (ECF No. 39), for “enjoining” Drs.
Getachew and Baucom to provide “a medically appropriate course of non-formulated nerve pain
medicine, Neurontin/Ultram” designed to “stabilize and maintain the full function of his lower
back, left hip, and left leg/knee. Motion for TRO, ECF No. 39. Alvarez also asks to be
examined by an orthopedist and a neurologist to evaluate his lower back, left hip, and left leg and
knee. Alvarez claims that on December 18, 2017, Janette Clark, a nurse practitioner, renewed
his Neurontin. Alvarez claims that Neurontin has stabilized his chronic sciatic nerve pain in the
past. He faults Baucom for issuing a “Memorandum and Order to all medical providers and the
medical contractor, Wexford, to cancel all non-formulated17medicine, including Neurontin and
Ultram. Alvarez claims that as a result, Dr. Getachew cancelled his Neurontin prescription,
To the extent Alvarez seeks to bring claims against the State Defendants under state law, these claims will be
dismissed without prejudice.
Plaintiff may be referring to non-formulary medications.
instead prescribing psychotropic medication for him, which does not help his pain. Motion for
TRO, ECF No. 39-1 at 1-2 ¶¶ 5-9.
A preliminary injunction is an “extraordinary and drastic remedy.” See Munaf v. Geren,
553 U.S. 674, 689–90 (2008). To obtain a preliminary injunction, a movant must demonstrate:
1) that he is likely to succeed on the merits; 2) that he is likely to suffer irreparable harm in the
absence of preliminary relief; 3) that the balance of equities tips in his favor; and 4) that an
injunction is in the public interest. See Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7,
20 (2008); The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th
Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010), reinstated in relevant part on
remand, 607 F.3d 355 (4th Cir. 2010) (per curiam). A preliminary injunction is distinguished
from a temporary restraining order (“TRO”) only by the difference in notice to the nonmoving
party and by the duration of the injunction. U.S. Dep't of Labor v. Wolf Run Mining Co., 452
F.3d 275,281 n.1 (4th Cir. 2006) (comparing Fed. R. Civ. P. 65(a) with Fed. R. Civ. P. 65(b)).
Alvarez’ most recent motion is construed as a TRO.
Since Alvarez filed his Complaint, he appears to have received further medical treatment,
including knee surgery. His requested in junctive relief in this regard seems dated, and it is not
altogether clear whether follow up care has mooted Alvarez’ request. The Court will revisit
Alvarez’ request after discovery proceeds with the assistance of counsel which the Court will
appoint by separate order.
For these reasons, the Medical Defendants’ Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment (ECF No. 17) will be granted in part and denied in part.
Alvarez’s § 1983 claims as to Wexford and Drs. Getachew and Barrera survive, as does his claim
that Janice Gilmore denied him a handicap accessible cell in violation of his rights under the
Eighth Amendment. Alvarez’s other constitutional, federal and state claims against the Medical
Defendants are dismissed. The State Defendants’ Motion to Dismiss, or in the Alternative, for
Summary Judgment (ECF No. 24) is granted as to all but Defendant Baucom, consistent with
this Opinion. A separate Order will follow.
Also by separate Order, the Court will appoint pro bono counsel to represent Alvarez on
his Eighth Amendment claims against the Medical Defendants, and thereafter a discovery
scheduling order shall issue.
United States District Judge
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