Poole v. NBCI et al

Filing 43

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 3/26/2019. (c/m 3/26/19)(ds3, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ERIC VON POOLE,
Plaintiff,

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v.

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NBCI, et al.,

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Defendants.

Civil Action No. GLR-17-1594

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*****
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendants Wexford Health Sources, Inc.
(“Wexford”), Mahboob Ashraf, M.D., William Beeman, R.N., and Ryan Browning,
L.P.N.’s1 (collectively, “Medical Defendants”) Renewed Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment (ECF No. 21) and Plaintiff Eric Von Poole’s
Motion for Injunctive Relief (ECF No. 32).2 The Motions are ripe for disposition, and no

1

The Court will direct the Clerk to amend the docket to reflect Nurse Ryan’s proper

name.
Also pending before the Court is Poole’s Motion for Clerk to Send Copy of
Plaintiff’s Response to Defendants (ECF No. 24). In his Motion, Poole requests that the
Clerk send a copy of his Opposition to Medical Defendants’ counsel. Under Local Rule
112.2(c) (D.Md. 2018), self-represented prisoner litigants need not serve pleadings on
opposing counsel by mail, and Medical Defendants received an electronic copy when
Poole’s Opposition was filed with the Court. Accordingly, the Court will deny this Motion
as moot.
Two additional motions are pending but are not before the Court at this time. First,
pending but unripe is a Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment (ECF No. 36) from other Defendants in this case, all of whom are Department
of Public Safety and Correctional Services (“DPSCS”) employees. The only Defendant
who did not join in this Motion is Scott Steininger, Correctional Dietary Manager. Second,
pending and ripe is Poole’s Motion for Temporary Restraining Order, Reconsideration [of]
2

hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons that follow, the
Court will grant Medical Defendants’ Motion and deny Poole’s Motion.
I.

BACKGROUND3

Poole, an inmate at North Branch Correctional Institution (“NBCI”) in Cumberland,
Maryland, had his right hip replaced at the University of Maryland Medical System
(“UMMS”) on June 19, 2007. (Compl. at 1, ECF No. 1; Pl.’s Opp’n at 2, ECF No. 23).4
On January 16, 2017, Krista Bilak, CRNP, saw Poole for a chronic care appointment.
(Compl. ¶ 7). Bilak informed him of the results of a report from orthopedic consultation he
had at UMMS. (Id.). The report, dated December 29, 2016 and prepared by Roy J. Carls,
M.D., indicates that Poole underwent several hip surgeries in his youth, which eventually
necessitated a total hip replacement. (Defs.’ Mot. Ex. 1 at 1, ECF No. 16-4).5 It notes that
the condition of Poole’s right hip replacement was worsening, and it recommends that

Appoint[ment] of Counsel and Order Granting the Plaintiff’s Request and Additional
Exhibits (ECF No. 38), which the Court will address at a later date.
3
Unless otherwise noted, the facts outlined here are set forth in Poole’s Complaint
(ECF No. 1) and Amended Complaint and Supplement (the “Supplement”) (ECF No. 4).
To the extent the Court discusses facts that Poole does not allege in his Complaint and
Supplement, they are uncontroverted and the Court views them in the light most favorable
to Poole. The Court will address additional facts when discussing applicable law.
The Court discusses only Poole’s allegations against Medical Defendants. The
remainder of the allegations in the Complaint and Supplement concern Poole’s assertions
that DPSCS employees have denied him opportunities to practice his chosen religion and
have retaliated against him.
4
Citations to the Complaint refer to the pagination the Court’s Case Management
and Electronic Case Files (“CM/ECF”) system assigned.
5
Citations to Exhibit 1 to Medical Defendants’ Motion refer to the pagination
CM/ECF assigned.
2

Poole see the UMMS orthopedists who performed his hip replacement surgery. (Id.;
Compl. ¶ 7).
On March 22, 2017, Dr. Theodore Manson at UMMS saw Poole. (Compl. ¶ 15;
Defs.’ Mot. Ex. 1 at 2–5). Dr. Manson recommended that Poole participate in twelve weeks
of physical therapy, three times per week, and that Poole receive a bone scan. (Compl. ¶ 15;
Defs.’ Mot. Ex. 1 at 2–5).6 The physical therapy was to include edema management, active
and passive range of motion, assisted range of motion, resistance strengthening exercise,
stretching, gait training, development of home exercise program, electrical stimulation, and
ultrasound. (Defs.’ Mot. Ex. 1 at 4–5). Dr. Manson recommended a follow-up appointment
after the bone scan was performed. (Id. at 2). Despite these recommendations, Poole states
that “the facility chose to again disregard the [o]rder” and, as a result, he filed an
Administrative Remedy Procedure (“ARP”) (NBCI 0778-17) on April 20, 2017.
(Compl. ¶ 15).
Also on April 20, 2017, Poole began physical therapy at NBCI with Physical
Therapist Stephen D. Ryan. (Defs.’ Mot. Ex. 1 at 8). Ryan measured Poole’s range of
motion, observed his gait as within functional limits, and noted that his surgical incision
was well-healed, with no tenderness, swelling, or bruising to the area. (Id.). Ryan noted
that Poole exhibited “marked reactivity” during some of the assessment and questioned if

Poole interprets Dr. Manson’s recommendation as prescribing physical therapy “at
UMMS Rehabilitative Department.” (Compl. ¶ 15). It is not clear from Dr. Manson’s
recommendation, however, whether he intended to prescribe the physical therapy to be
completed at NBCI or at the UMMS Rehabilitative Department. In any event, the
difference in where Poole was to receive his physical therapy is not a material factual
dispute.
6

3

this was possibly “symptom magnification.” (Id.). Poole had another physical therapy
session with Physical Therapist Assistant Lloyd Hott on April 25, 2017. (Id. at 9).
On April 27, 2017, Hott saw Poole. (Id. at 10). Poole reported his hip pain was a ten
out of ten on the pain scale. (Id.). At this appointment, Poole performed isometric hip
exercises and he was provided electrical stimulation and ultra sound. (Id.).
When Poole saw Hott again on May 2, 2017, he continued to rate his pain as a ten
out of ten, but Hott noted that Poole walked to therapy. (Id. at 14). At this appointment,
Poole also said he was not going to tell Hott anything anymore because he had read the
notes from previous physical therapy visits and saw that Hott documented what Poole had
said. (Id.). After Poole performed the exercises provided as he could tolerate, he was given
electrical stimulation and ultra sound. (Id.).
On May 11, 2017, Hott again provided physical therapy to Poole. (Id. at 16). Poole
reported at this appointment that the pain in his right hip had increased since the last time
he was seen and described it as “throbbing in his thigh.” (Id.). Poole performed the
prescribed physical therapy exercises and was provided a heat pack and electrical
stimulation at this appointment. (Id. at 16–17).
On May 18, 2017, Ryan re-evaluated Poole. (Id. at 18). Poole told Ryan his
symptoms had not improved, but Poole exhibited some improvement in function during
the evaluation. (Id.). Ryan recommended six more physical therapy sessions. (Id.). The
goal of those additional sessions was to increase the strength in Poole’s right hip, improve
flexibility, and to develop a self-management program. (Id.).

4

The next day, Poole had a physical therapy session with Hott. (Id. at 19). Poole had
additional physical therapy sessions with Hott on May 20 and 23, 2017; June 13, 15, and
27, 2017. (Id. at 20–27). Ryan saw Poole on June 29, 2017 for recertification of the order
for physical therapy sessions, and Poole reported some improvement in his symptoms. (Id.
at 28). Ryan noted that Poole was at the “optimum level of functional mobility” and that
the “optimum benefit from PT [had been] obtained.” (Id.). Poole’s treatment plan was to
complete the current course of physical therapy and establish a self-management program.
(Id.).
On July 3, 2017, when Poole went to physical therapy with Hott, he complained that
he was in a lot of pain because of the evaluation he had with Ryan the previous week. (Id.
at 29). The session did not include exercises because Poole said he was in too much pain
to do them. (Id.). Two days later, Poole gave a similar report. (Id. at 30). Hott noted that he
felt Poole could benefit from the use of some exercise machines to strengthen and stabilize
his hip without adding impact. (Id.). Hott’s plan was to speak with Ryan about that
possibility. (Id.). On July 7, 2017, Poole again reported that he was in too much pain to
participate in physical therapy. (Id. at 31). One week later, Krista Self, RNP, added a
prescription for Tramadol, a narcotic pain-reliever, to Poole’s medications. (Id. at 35).
On July 24, 2017, Poole saw Dr. Ava Joubert-Curtis for his chronic hip pain and
hypertension. (Id. at 36). Dr. Joubert-Curtis reported that Poole described his “biggest
problem” as having no access to exercise equipment which he blamed for his fifty-pound
weight gain over the past year. (Id.). She also expressed that Poole was evasive in his
responses to questions about whether he was taking the medication prescribed to him for
5

his pain, in particular Mobic, an anti-inflammatory medication. (Id.). Despite his
complaints, Poole told Dr. Joubert-Curtis that he was able to walk for forty minutes, fivetimes per week. (Id.). Dr. Joubert-Curtis urged Poole to take his medications and, after
explaining the expected benefits of weight-loss including better pain control, noted that he
expressed no problems with going on a 1,500 calorie per-day diet to lose the weight. (Id.
at 37).
On August 14, 2017, when Dr. Joubert-Curtis saw Poole again, he had no notable
weight-loss and his blood pressure remained elevated. (Id. at 39). Poole told Dr. JoubertCurtis that he had filed an ARP because nothing offered at NBCI had adequately addressed
his hip pain. (Id.). After reviewing Dr. Carls’ report from 2016, Dr. Joubert-Curtis ordered
a consultation for a bone scan. (Id. at 39–40). That consultation request was subsequently
approved. (Ashraf Aff. ¶ 8, ECF No. 16-5).
At a mediation regarding the ARP, Poole met with Nurse Browning, where Poole
explained the need for his physical therapy at the UMMS location because the facility at
NBCI was “in a room the size of a closet with no equipment that could properly rehabilitate
[his] injury.” (Compl. ¶ 15). Poole states that he contacted the “parent company” of
Wexford explaining he had “been doing non-stren[uous] exercises” with “PT assistant
Lloyd Hott” which were not helping with his pain. (Id.). He further alleges Hott told him
that he “need[ed] not only the [use] of the equipment and resources of UMMS,” but that
he “would also need to continue the rehabilitative therapy on a daily basis.” (Id.). Poole
states Hott acknowledged that NBCI did not have the necessary equipment as it was
discontinued in 2012. (Id.).
6

On June 9, 2017, Poole filed his Complaint against multiple Defendants, including
Medical Defendants, under 42 U.S.C. § 1983 (2018). (ECF No. 1). On June 15, 2017, Poole
filed an Amended and Supplemental Complaint (the “Supplement”).7 (ECF No. 4). Poole
alleges that Medical Defendants: (1) exhibited deliberate indifference to his serious
medical needs in violation of the Eighth Amendment to the U.S. Constitution; and (2)
violated his due process rights under the Fourteenth Amendment to the U.S. Constitution
when they deprived him of “any exercise compatible with” what the UMMS doctor
recommended. (Suppl. ¶¶ 25, 28).
On October 10, 2017, Medical Defendants filed their first Motion to Dismiss or, in
the Alternative, Motion for Summary Judgment. (ECF No. 16). The Court denied this
Motion without prejudice on August 21, 2018, to correct clerical errors in this case. (Aug.
21, 2018 Order, ECF No. 19). On August 22, 2018, Medical Defendants filed their
Renewed Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. (ECF
No. 21). Poole filed his Opposition on September 13, 2018. (ECF No. 23). To date, the
Court has no record that Medical Defendants filed a Reply.
Poole filed his Motion for Injunctive Relief on December 17, 2018. (ECF No. 32).
To date, the Court has no record that any of Defendants filed an Opposition.

7

Although an amended complaint typically supersedes the original complaint,
Venable v. Pritzker, No. GLR-13-1867, 2014 WL 2452705, at *5 (D.Md. May 30, 2014)
aff’d, 610 F.App’x 341 (4th Cir. 2015), because Poole states in his Supplement that he
“seek[s] to incorporate” the pleading, the Court construes the Complaint and Supplement
together as the operative complaint, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (“Pro se pleadings, however, are liberally
construed and held to a less stringent standard than pleadings drafted by lawyers.”); accord
Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 722 (4th Cir. 2010).
7

II.
A.

DISCUSSION

Medical Defendants’ Motion
1.

Conversion of Medical Defendants’ Motion

Medical Defendants style their Motion as a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment under Rule 56. A
motion styled in this manner implicates the Court’s discretion under Rule 12(d). See
Kensington Vol. Fire Dep’t., Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436–37 (D.Md.
2011), aff’d, 684 F.3d 462 (4th Cir. 2012). This Rule provides that when “matters outside
the pleadings are presented to and not excluded by the court, the [Rule 12(b)(6)] motion
must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). The
Court “has ‘complete discretion to determine whether or not to accept the submission of
any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6)
motion and rely on it, thereby converting the motion, or to reject it or simply not consider
it.’” Wells-Bey v. Kopp, No. ELH-12-2319, 2013 WL 1700927, at *5 (D.Md. Apr. 16,
2013) (quoting 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed.
2004, 2012 Supp.)).
The United States Court of Appeals for the Fourth Circuit has articulated two
requirements for proper conversion of a Rule 12(b)(6) motion to a Rule 56 motion: notice
and a reasonable opportunity for discovery. See Greater Balt. Ctr. for Pregnancy Concerns,
Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir. 2013). When the movant expressly
captions its motion “in the alternative” as one for summary judgment and submits matters
outside the pleadings for the court’s consideration, the parties are deemed to be on notice
8

that conversion under Rule 12(d) may occur. See Moret v. Harvey, 381 F.Supp.2d 458, 464
(D.Md. 2005). 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).
Ordinarily, summary judgment is inappropriate when “the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448 (4th Cir. 2011). Yet, “the party opposing summary judgment
‘cannot complain that summary judgment was granted without discovery unless that party
had 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 sufficiently the issue that more discovery is needed, the non-movant must
typically file an affidavit or declaration under Rule 56(d), explaining the “specified
reasons” why “it cannot present facts essential to justify its opposition.” Fed.R.Civ.P.
56(d). A Rule 56(d) affidavit is inadequate if it simply demands “discovery for the sake of
discovery.” Hamilton v. Mayor of Balt., 807 F.Supp.2d 331, 342 (D.Md. 2011) (quoting
Young v. UPS, No. DKC-08-2586, 2011 WL 665321, at *20 (D.Md. Feb. 14, 2011). A
Rule 56(d) request for discovery is properly denied when “the additional evidence sought
for discovery would not have by itself created a genuine issue of material fact sufficient to
defeat summary judgment.” Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 195 (4th
Cir. 2006) (quoting Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 953 (4th Cir.
1995)).

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The Fourth Circuit has warned that it “‘place[s] great weight on the Rule 56[d]
affidavit’ and that ‘a reference to 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 a Rule 56[d] affidavit.’” Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at
961). Failing to file a Rule 56(d) affidavit “is itself sufficient grounds to reject a claim that
the opportunity for discovery was inadequate.” Id. (quoting Evans, 80 F.3d at 961).
Nevertheless, the Fourth Circuit has indicated that there are some limited instances in
which summary judgment may be premature notwithstanding the non-movants’ failure to
file a Rule 56(d) affidavit. See id. A court may excuse the failure to file a Rule 56(d)
affidavit when “fact-intensive issues, such as intent, are involved” and the nonmovant’s
objections to deciding summary judgment without discovery “serve[] as the functional
equivalent of an affidavit.” Id. at 245 (quoting First Chicago Int’l v. United Exch. Co., 836
F.2d 1375, 1380–81 (D.C.Cir. 1988)).
Here, Poole was on notice that the Court might resolve Medical Defendants’ Motion
under Rule 56 because they styled their Motion in the alternative for summary judgment
and presented extensive extra-pleading material for the Court’s consideration. See Moret,
381 F.Supp.2d at 464. Poole does not request additional time for discovery and he presents
extra-pleading materials for the Court to consider with his Opposition. Because the Court
considers the parties’ extra-pleading materials in resolving Medical Defendants’ Motion,
the Court construes their Motion as a motion for summary judgment.

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2.

Standard of Review

In reviewing a motion for summary judgment, the Court views the facts in a light
most favorable to the nonmovant, drawing all justifiable inferences in that party’s favor.
Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
Summary judgment is proper when the movant demonstrates, through “particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory answers,
or other materials,” 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(a), (c)(1)(A). Significantly, a
party must be able to present the materials it cites in “a form that would be admissible in
evidence,” Fed.R.Civ.P. 56(c)(2), and supporting affidavits and declarations “must be
made on personal knowledge” and “set out facts that would be admissible in evidence,”
Fed.R.Civ.P. 56(c)(4).
Once a motion for summary judgment is properly made and supported, the burden
shifts to the nonmovant to identify evidence showing there is genuine dispute of material
fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
The nonmovant cannot create a genuine dispute of material fact “through mere speculation
or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 141
(4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).
A “material fact” is one that might affect the outcome of a party’s case. Anderson,
477 U.S. at 248; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459,
11

465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
Whether a fact is considered to be “material” is determined by the substantive law, and
“[o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248;
accord Hooven-Lewis, 249 F.3d at 265. A “genuine” dispute concerning a “material” fact
arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the
nonmoving party’s favor. Anderson, 477 U.S. at 248. If the nonmovant has failed to make
a sufficient showing on an essential element of her case where she has the burden of proof,
“there can be ‘no genuine [dispute] as to any material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
3.

Analysis

Medical Defendants advance two principal arguments: (1) that the Complaint and
Supplement fail to adequately state a claim against them as Poole does not clearly articulate
any alleged wrong-doing or harm they caused; and (2) there is no evidence that Medical
Defendants were deliberately indifferent to Poole’s medical needs or that any of them
provided Poole with medical care, and therefore they are entitled to judgment as a matter
of law.8 Poole, for his part, asserts that he “disputes the declarations by all of the medical

Medical Defendants also maintain that (1) Wexford cannot be held liable on a
respondeat superior theory of liability; (2) Poole does not allege sufficient facts to support
a punitive damages claim; and (3) Poole is not entitled to injunctive relief. Because the
Court will conclude that Medical Defendants are entitled to judgment as a matter of law on
Poole’s constitutional claims, the Court does not address these arguments.
8

12

defendants regarding the deliberate indifference that the [M]edical [D]efendants caused.”
(Pl.’s Opp’n at 6–7). In support of his argument, Poole cites the fifty-seven exhibits to his
Complaint, which establish that they disregarded Dr. Manson’s recommendations, as
evidence of their deliberate indifference. The Court agrees with Defendants second
argument.
i.

Eighth Amendment Claim

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)); accord Anderson v. Kingsley, 877 F.3d 539, 543 (4th Cir. 2017). 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); see also Anderson,
877 F.3d at 543. “Deliberate indifference is a very high standard—a showing of mere
negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695–96 (4th Cir. 1999).
To establish an Eighth Amendment deliberate indifference claim, a plaintiff must
demonstrate that: (1) objectively, he was suffering from a serious medical need; and (2)
subjectively, the defendants were aware of his need for medical attention but failed to either
provide it or ensure that it was available. See Farmer v. Brennan, 511 U.S. 825, 834–7
(1994); see also Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209–10 (4th Cir. 2017).
13

The medical condition at issue must be serious. See Farmer, 511 U.S. at 837. 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 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) (concluding that the failure to
provide a diabetic inmate with insulin where physician acknowledged it was required is
evidence of was an objectively serious medical need).
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. Ctr., 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
ultimately was not averted.” Farmer, 511 U.S. at 844.
Reasonableness of the actions taken must be judged in light of the risk the defendant
actually knew at the time. See Brown v. Harris, 240 F.3d 383, 390 (4th Cir. 2001) (citing
Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998)) (noting that the 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
14

prescribing treatment raises fair inference that he believed treatment was necessary and
that failure to provide it would pose an excessive risk). “Disagreements between an inmate
and a physician over the inmate’s proper medical care do not state a § 1983 claim unless
exceptional circumstances are alleged.” Wright v. Collins, 766 F.2d 841, 849 (4th Cir.
1985). 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.” United States v. Clawson, 650 F.3d 530, 538
(4th Cir. 2011) (quoting Bowring v. Godwin, 551 F.2d 44, 47–48 (4th Cir. 1977)). Neither
party disputes the seriousness of Poole’s medical problems with his right hip. Accordingly,
the Court confines its analysis to the subjective component of the deliberate indifference
inquiry.
Poole alleges that Medical Defendants violated his Eighth Amendment rights when
they: (1) failed to follow Dr. Manson’s recommendation that Poole receive physical
therapy at the UMMS Rehabilitation Department, leading to an exacerbation of his pain;
and (2) failed to inform DPSCS of Dr. Manson’s recommendation, which resulted in his
continued assignment to a prison where the proper equipment for physical therapy was not
available. (Suppl. ¶¶ 22, 25).
With regard to the first alleged constitutional violation, Dr. Manson recommended
twelve weeks of physical therapy three times a week on March 22, 2017.9 The evidence in

Dr. Mason also recommended a bone scan. (Defs.’ Mot. at 1). Although a request
for a bone scan was submitted, that request was denied in favor of referring Poole to
physical therapy first, (see Pl.’s Opp’n Ex. 1 at 24, ECF No. 38-1), and a bone scan was
ultimately approved after Poole completed his physical therapy sessions, (Ashraf Aff. ¶ 8).
9

15

the record indicates that although Poole did not receive the physical therapy at UMMS, the
recommendation that Poole receive physical therapy, including exercises, electrical
stimulation, and ultrasound was followed. The physical therapy evaluations he received at
NBCI document improvement in the functionality of his hip and in the pain he was
experiencing. When Poole complained of his hip pain, Nurse Self and Dr. Joubert-Davis
prescribed him medications to help manage it. Thus, the evidence in the record reflects that
Poole received regular medical treatment and physical therapy sessions for his hip. The
fact that Poole did not receive his physical therapy sessions at the UMMS Rehabilitation
Department does not establish Medical Defendants’ deliberate indifference. Clawson, 650
F.3d at 538 (quoting Bowring, 551 F.2d at 47–48). Further, Poole does not allege or
produce evidence that Medical Defendants made or were otherwise responsible for the
decision to provide Poole physical therapy at NBCI instead of at UMMS. Thus, even if the
failure to permit Poole to receive physical therapy at UMMS constituted a constitutional
violations, neither Poole’s allegations nor the evidence in the record implicate Medical
Defendants.
Poole’s second assertion is that he was not provided with the proper exercise
equipment for use in his physical therapy sessions. He surmises what is proper equipment
for rehabilitation from what he was provided during his stay at Jessup Correctional
Institution (“JCI”) and during his rehabilitation program at UMMS following his hip
replacement surgery. (Pl.’s Opp’n at 2). Even if the equipment at JCI and UMMS were the

Poole does not take issue with the delay in receiving a bone scan; his allegations focus only
on the failure to send him to UMMS for physical therapy.
16

proper equipment, the failure to provide such equipment does not rise to a constitutional
claim because they were not a medical necessity. Clawson, 650 F.3d at 538 (quoting
Bowring, 551 F.2d at 47–48). As discussed above, Poole received physical therapy,
including exercises and treatment modalities Dr. Manson recommended, and the
functionality of Poole’s hip and his pain improved. The fact that Poole desires different or
additional equipment for physical therapy does not constitute a constitutional violation. Id.
(quoting Bowring, 551 F.2d at 47–48). Further, similar to the first alleged Eighth
Amendment violation, Poole does not allege or establish that any of Medical Defendants
were involved in decisions about the physical therapy equipment at NBCI generally, or the
equipment that was available to Poole in particular.
In sum, while this Court does not doubt that Poole was in pain, there is no evidence
in the record that Medical Defendants took no action to treat his condition, or that the
actions taken were not reasonable. To the extent Poole was not provided with the precise
type of physical therapy that was initially recommended, the failure to provide it does not
rise to a constitutional violation absent extraordinary circumstances. Poole does not allege
or establish extraordinary circumstances, and therefore, his disagreement with the course
of care does not constitute a constitutional violation.
Thus, the Court concludes that Poole’s Eighth Amendment claims fail as a matter
of law. Accordingly, the Court will grant Medical Defendants’ Motion as to Poole’s Eighth
Amendment claims.

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ii.

Fourteenth Amendment Due Process Claim

Poole alleges that Medical Defendants violated his due process rights under the
Fourteenth Amendment when they deprived him of “any exercise compatible with” what
the UMMS doctor recommended.10 (Suppl. ¶¶ 25, 28). Medical Defendants contend that
this allegation fails to state a claim and that Poole received necessary and appropriate
medical treatment to address the issues with his right hip. The Court agrees that Poole fails
to state a claim.
In general, prisoners retain certain rights under the Due Process Clause of the U.S.
Constitution. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). “[G]iven a valid conviction,
the criminal defendant has been constitutionally deprived of his liberty to the extent that
the State may confine him and subject him to the rules of its prison system so long as the
conditions of confinement do not otherwise violate the Constitution.” Meachum v. Fano,

10

In his Opposition, Poole alleges for the first time that Medical Defendants
“violated the regulations that require them to adhere to the medical contract that was
approved by the [Maryland] state government.” (Pl.’s Opp’n at 10). Poole may not amend
his Complaint and Supplement through his briefs. Zachair, Ltd. v. Driggs, 965 F.Supp. 741,
748 n.4 (D.Md. 1997) aff’d, 141 F.3d 1162 (4th Cir. 1998) (“[Plaintiff] is ‘bound by the
allegations contained in its complaint and cannot, through the use of motion briefs, amend
the complaint.”). Accordingly, the Court does not consider this allegation.
Further, assuming this allegation is true and is properly before the Court, it still fails.
“[T]he adoption of procedural guidelines does not give rise to a liberty interest; thus, the
failure to follow regulations does not, in and of itself, result in a violation of due process.”
Kitchen v. Ickes, 116 F.Supp.3d 613, 629 (D.Md. 2015) (citing Culbert v. Young, 834 F.2d
624, 628 (7th Cir. 1987)), aff’d, 644 F.App’x 243 (4th Cir. 2016); see also Riccio v. County
of Fairfax, 907 F.2d 1459, 1466 (4th Cir. 1990) (noting “a state does not necessarily violate
the Constitution every time it violates one of its rules”). Thus, Medical Defendants’
purported failure to adhere to a contract does not constitute a due process violation, and
Poole does not allege an independent violation of his constitutional rights arising out of
Medical Defendants’ alleged failure to follow the contract.
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427 U.S. 215, 224 (1976). Liberty interests protected by due process generally extend only
to those conditions that impose an “atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
(1995).
Here, Poole does not allege or establish that he has a protected liberty interest in
being able to perform exercises compatible with Dr. Manson’s recommendations, nor could
he. Not being able to perform certain physical therapy exercises does not impose an
“atypical and significant hardship” on him. Id.; cf. Burrell v. Sowers, No. PJM-09-1038,
2012 WL 628506, at *13 (D.Md. Feb. 24, 2012) (collecting cases) (“Prisoners . . . do not
have a constitutionally protected right . . . to access education or rehabilitative programs.”).
Thus, the Court concludes that Poole’s due process claim fails as a matter of law.
Accordingly, the Court will grant Medical Defendants’ Motion as to Poole’s due process
claims.
B.

Poole’s Motion
In his Motion for Injunctive Relief, Poole seeks an order requiring: (1) a visit to the

UMMS Rehabilitation Department; (2) “relief from pain”; and (3) the Department of
Corrections to stop the “shunning and retaliatory actions during [the] original ARP
complaint.” (Mot. Inj. Relief at 4, ECF No. 32).
A party seeking a preliminary injunction or temporary restraining order must
establish the following elements: (1) a likelihood of success on the merits; (2) a likelihood
of suffering irreparable harm in the absence of preliminary relief; (3) that the balance of
equities tips in the party’s favor; and (4) why the injunction is in the public interest. See,
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e.g., Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). With regard to
irreparable harm, the movant must show the harm to be “neither remote nor speculative,
but actual and imminent.” Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802,
812 (4th Cir. 1991) (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969,
975 (2d Cir. 1989)). In the prison context, courts should grant preliminary injunctive relief
that involves the management of correctional institutions only under exceptional and
compelling circumstances. See Taylor v. Freeman, 34 F.3d 266, 269–70 (4th Cir. 1994).
In this case, Poole does not address or provide any information about the factors
used to consider whether injunctive relief is warranted. Nor does he provide any facts
regarding the alleged retaliation or even specify the ARP that initiated it. Further, because
the Court will grant Medical Defendants’ Motion, Poole cannot demonstrate a likelihood
of success on the merits. Accordingly, the Court will deny Poole’s Motion.
III.

CONCLUSION

For the reasons stated herein, the Court will grant Medical Defendants’ Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 21) and deny
Poole’s Motion for Injunctive Relief (ECF No. 32). The Court will also deny as moot
Poole’s Motion for Clerk to Send Copy of Plaintiff’s Response to Defendants (ECF No.
24). A separate Order follows.
/s/
________________________
George L. Russell, III
United States District Judge

March 26, 2019
Date

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