Collins v. Warden

Filing 41

MEMORANDUM OPINION. Signed by Chief Judge James K. Bredar on 6/5/2020. (c/m 6/5/2020)(ko, Deputy Clerk)

Case 1:18-cv-01012-JKB Document 41 Filed 06/05/20 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DEJESUS COLLINS, #366-774, #1746140

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Plaintiff,

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v.

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AYOKU OKENTUNJI, M.D.,

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Defendant.

Civil Action No. JKB-18-1012

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MEMORANDUM OPINION

Self-represented Plaintiff DeJesus Collins, an inmate currently incarcerated at Jessup
Correctional Institution (“JCI”) in Jessup, Maryland, filed the above-captioned 42 U.S.C. § 1983
civil rights Complaint against Defendant Ayoku Okentunji, M.D., on April 6, 2018, alleging, inter
alia, that he has not received necessary medications at JCI. ECF No. 1.1 On May 7, 2018, Plaintiff
supplemented his Complaint to state that Defendant failed to send him to an outside hospital for
treatment after he sustained serious facial and head injuries from an alleged assault. ECF No. 3 at
12. He seeks a preliminary injunction and monetary damages. Id. at 3.2 On September 6, 2019,
Plaintiff moved for appointment of counsel. ECF No. 34.
On November 19, 2019, Defendant filed a Motion to Dismiss, or in the Alternative, Motion
for Summary Judgment. ECF No. 39. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), the Court informed Plaintiff that the failure to file a response in opposition to Defendant’s
motion could result in dismissal of the Complaint. ECF No. 40. Plaintiff filed nothing further.

1

Plaintiff also brought suit against JCI Officer Kevin Williams and Warden Casey Campbell, both
of whom were granted summary judgment on July 23, 2018. ECF Nos. 28, 29.
2

Although Plaintiff was previously granted leave to proceed in forma pauperis, ECF No. 5, he filed
another motion seeking the same relief on September 6, 2019. ECF No. 31. That subsequent Motion for
Leave to Proceed in Forma Pauperis shall be denied.

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This Court deems a hearing unnecessary. See Local Rule 105.6 (D. Md. 2016). For the
reason set forth below, Defendant’s Motion shall be granted, and Plaintiff’s Motion to Appoint
Counsel shall be denied.
Background
In his initial Complaint, Plaintiff alleges that he had “been hurt really bad,” needs help, and
needs to go to a hospital. Complaint at 1, ECF No. 1. Plaintiff claims that he cannot walk at all
and is having severe migraines and headaches. Id. Plaintiff also claims that he suffers from
Crohn’s disease and chronic abdominal pain, for which there is no cure, and that he previously
suffered a traumatic brain and lumbar injury. Id. According to Plaintiff, he was previously issued
a wheelchair and was given medications, but he is no longer receiving medication for Crohn’s
disease or for pain management. Id.
Plaintiff alleges that on January 18, 2018, he was assaulted by a correctional officer,
causing cuts and swelling on his head and face. Id. at 1-2. In a supplement to the Complaint,
Plaintiff alleges that Defendant never authorized for him “to be sent out to a[n] outside hospital
knowing how serious my head and facial conditions were . . . .” Supplement at 12, ECF No. 3.
Plaintiff has a medical history significant for, inter alia, regional enteritis (Crohn’s
disease), a positive tuberculosis skin test without active tuberculosis, hyperlipidemia, and gastritis,
and a mental health history significant for anxiety, hallucinations, and depression. Oketunji
Affidavit at ¶4, ECF No. 39-5. As of October 24, 2017, Plaintiff was receiving Gabapentin,
Baclofen and Tylenol Extra Strength to relieve his back and stomach pain. Id. at 9.
At around 12:48 p.m. on January 19, 2018, Plaintiff was seen at nurse sick call following
an altercation in his housing unit. Id. at 10. The nurse noted that Plaintiff had blood on his face,
shirt, and hands, which she cleaned with saline and bandaged. Id. Plaintiff had two head

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contusions, one to the right side and one to the back of the head, as well as a laceration to his
eyebrow, to which steri-strips were applied. Id. A bandaid was also placed on his right thumb.
Id. Plaintiff was given Tylenol for pain and was told to return for further assessment later in the
day. Id.
Plaintiff returned at approximately 9:35 p.m., at which time he was seen by a nurse
practitioner. Id. at 11. Plaintiff was noted to have a superficial laceration to the left eyebrow and
a 3cm laceration to the right eyebrow involving the fascia. Id. Three sutures were applied to the
right laceration and Plaintiff was given Ibuprofen 600mg for pain. Id. He was told to return in 7
days to remove the sutures. Id.
The following day, on January 20, 2018, Plaintiff was seen by a nurse with complaints of
dizziness and pain in his head and back. Id. at 13. At that time, there was redness and swelling to
his right eye but no active bleeding. Id. Plaintiff requested an x-ray or MRI of his head. Id. He
was reassured that his vitals were stable and given Motrin 600mg and two cold compress packets.
Id.
On January 22, 2018, Plaintiff was seen by a nurse practitioner for follow up of his assault
injuries. Id. at 14-15. It was noted that Plaintiff was doing better; nonetheless, an x-ray was
ordered to rule out a possible fracture of his facial bones. Id. Plaintiff was directed to continue
taking Tylenol for pain, and an order to refill his Baclofen was issued. Id.
On January 23, 2018, Plaintiff was seen by a physician’s assistant for his injuries. Id. at
16-18.

Plaintiff reported redness, headache, and blurry vision, but his examination was

unremarkable. Id. Plaintiff had mild swelling of the mid portion of his left middle finger, and an
x-ray of the finger was ordered. Id.
On January 24, 2018, the results of Plaintiff’s x-rays were received. Id. at 19-20. His facial

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x-ray revealed “no evidence of an acute fracture, dislocation or subluxation,” the alignment was
anatomic, and the paranasal sinuses were well aerated. Id. at 19. Similarly, with regard to his
finger, there was “no evidence of an acute fracture, dislocation or subluxation,” and the alignment
was anatomic. Id. at 20.
On January 29, 2018, Plaintiff had a sick call visit with a nurse practitioner after he
requested renewal of Immodium and the use of a wheelchair, which had expired in July 2017. Id.
at 21. As Plaintiff could move all four extremities, there was no indication for a wheelchair at that
time. Id. Plaintiff’s wounds were examined and his sutures were removed. Id.
From February 12 to February 14, 2018, Plaintiff complained of pain and claimed that he
could not walk. Id. at 23-28. On February 18, 2018, he was seen by Defendant at the chronic care
clinic. Id. at 29-33. Plaintiff complained of six bowel movements daily with blood in his stool
and intermittent abdominal pain, but denied nausea or vomiting. Id. Defendant noted that Plaintiff
had a history of Crohn’s disease, and he ordered a gastroenterologist evaluation at the University
of Maryland Medical System (“UMMS”), as was recommended via a gastroenterologist telemed
conference in October 2017. Id. Plaintiff, who presented in a wheelchair, also stated that he could
not walk following the January altercation. Id. Defendant explained to Plaintiff that the only
injuries noted were lacerations to the face, and his exam and x-rays did not show any reason why
he could not walk. Id.
On March 1, 2018, Plaintiff’s gastroenterology (“GI”) consult at UMMS was approved.
Id. at 34. On March 6, 2018, Plaintiff returned to see Defendant for complaints that he could not
walk. Id. at 35-36. Plaintiff was observed with his legs raised up while being wheeled into the
office, he continuously moved his legs while seated, he was able to assist in getting his shoes off,
and was able to put them back on unassisted. Id. Defendant performed a neurologic exam, which

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did not elicit any neuromuscular deficits, and deep tendon reflexes elicited both knee jerks. Id.
Defendant noted that Plaintiff’s right knee had scraped skin reportedly from crawling but opined
that there was no reason Plaintiff could not walk. Id.
On or about March 22 and March 27, 2018, Plaintiff submitted sick call slips complaining
of migraine headaches. Id. at 39-40. Plaintiff also continued to claim that he was unable to walk
due to chronic abdominal and back pain. Id. He filed this suit on April 6, 2018. ECF No. 1.
On April 10, 2018, Plaintiff had a sick call visit, at which time it was explained that an xray of his lumbar spine on March 6, 2018 showed no acute osseous abnormality. ECF No. 39-4 at
41. Tylenol was prescribed for pain management and labs were taken. Id. The following day, on
April 11, 2018, Plaintiff returned for a follow up of his lab results. Id. at 43-44. According to the
nurse practitioner, Plaintiff’s labs were either within normal limits or had improved from the prior
month. Id. During that visit, Plaintiff denied abdominal pain, bloody stools, or vomiting. Id.
On April 24, 2018, Defendant submitted a consultation request for a CT scan of Plaintiff’s
abdomen and pelvis. Id. at 45. In support of his request, Defendant noted that Plaintiff had been
approved for a GI consult at UMMS but could not be seen until September 2018. Id. Defendant
stated, “he continues to complaint of abdominal pain, bloody diarrhea and reflux. I need to get a
CT scan of his abdomen and pelvis whilst waiting for the consult to take place, to see the condition
of his GI tract and decide on what type of treatment I can offer.” Id.
On or about May 11, 2018, Plaintiff submitted a sick call slip complaining of migraine
headaches and abdominal pain. Id. at 46. He was seen by a nurse practitioner who noted that his
labs were stable and his renal profile was within normal limits. Id. Plaintiff reported he was on
day 8 of a hunger strike. Id.
On May 15, 2018, Plaintiff was seen by medical staff for a chart update. Id. at 29. At that

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time, Plaintiff reported that he was on day 13 of a modified hunger strike. Id. Plaintiff claimed
that he still could not walk and had to crawl to get around. Id. He was sent to the infirmary, where
he was evaluated by medical staff on May 17, 18, 20, 21, and 22, 2018. Id. at 52-62. On May 22,
2018, Plaintiff was reported to have eaten during the last 4 days and was observed walking despite
his claims that he still could not walk. Id. at 61. On May 24, 2018, Plaintiff was discharged from
the infirmary. Id. at 63.
On May 25, 2018, Plaintiff was seen by a physician’s assistant following his trip to UMMS
for a CT scan of the abdomen. Id. at 65. On May 30, 2018, it was noted that the CT scan revealed
acute Crohn’s disease. Id. at 70.
In June 2018, Plaintiff was prescribed Tramadol for pain, and Percocet temporarily when
Tramadol was not available. See id. at 72-79. He was routinely seen by a medical provider who
found no evidence of an exacerbation of Crohn’s disease. Id. at 82-84. A plan was created to send
Plaintiff to Bon Secours Hospital (“BSH”) for GI and neurology evaluations as well as a functional
assessment for mobility. Id. at 87.
On June 27, 2018, Plaintiff was seen at the BSH emergency room for a claimed hunger
strike, back pain, inability to walk, diarrhea, and weight loss. Id. at 88-91. Plaintiff had the GI
and neurology evaluations and was seen by a physical therapist. Id. He was scheduled for an MRI
of the abdomen and hips. Id.
As of June 29, 2018, Plaintiff was awaiting a brain MRI. Id. The GI evaluation revealed
that Plaintiff was in remission for Crohn’s disease, and his MRI revealed a distension of the urinary
bladder, degeneration, and a tiny subligamentous disc herniation of the L5-S1 disc. Id. Plaintiff
was assessed to have possible multiple sclerosis with bilateral necrosis of the hips and was
converted from inpatient to observational status. Id.

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Plaintiff continuously sought to be released from BSH and became upset when his pain
medication was reduced. Id. During Plaintiff’s stay at BSH: (1) he had intact neurologic exams;
(2) he was seen walking without any help; (3) his knee skin was clean and soft with no sign of
trauma; (4) physical therapy worked with him and recommended a rolling walker but Plaintiff only
wanted a wheelchair; (5) orthopedics recommended outpatient follow up with possible calcium
injection for aseptic necrosis of the bilateral hips; (6) with regard to his Crohn’s disease, Plaintiff
did not lose any weight, there was no increase in his bowel movement frequency, and no blood in
his stool; (7) Plaintiff was recommended to see a rheumatologist for his bilateral sacroiliitis; and
(8) he was diagnosed with anxiety and bipolar disorder with trust issues and paranoid behavior.
Id.
On July 2, 2018, Plaintiff was discharged from BSH to the JCI infirmary. Id. at 92-93. He
was scheduled to follow up with psychiatry, neurology, GI and rheumatology at UMMS, and for
an orthopedic consult. Id. Plaintiff was prescribed Tramadol 50mg for pain and Pentasa 500mg
for his abdominal pain and blood in stool. Id.
Thereafter, Plaintiff was seen standing, cleaning his room, stretching his bed, walking on
his own, and independently performing activities of daily living. See id. at 98-101. However,
Plaintiff insisted on using a wheelchair. Id. Plaintiff was asked to report to nursing when he had
a bowel movement to see if there was blood, but he refused. Id. at 103-04.
On July 9, 2018, Plaintiff requested Neurontin for pain but was told there was no indication
for it. Id. at 105. On July 12, 2018, Plaintiff was evaluated by physical therapy and was assessed
with bilateral lower leg weakness of unknown origin. Id. On July 20, 2018, Plaintiff complained
that he did not receive Tramadol. Id. at 110. When asked why he refused the last two sessions of
physical therapy, Plaintiff attributed it to pain. Id. It was explained to Plaintiff that physical

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therapy would help mobility, range of motion and pain, and that in addition to Tramadol, an antiinflammatory such as Naprosyn, Motrin, or Tylenol Extra Strength would be prescribed before
each session. Id. Plaintiff became aggressive, loud and threatening, and had to be removed. Id.
Throughout July and August 2018, Plaintiff received physical therapy intermittently and
was prescribed Percocet for pain. See id. at 111-126. On August 20, 2018, Plaintiff’s lower
extremity strength was 5/5 with normal sensory exam, and he was discharged from physical
therapy. Id. at 127. He denied having diarrhea and abdominal pain. Id.
For the remainder of August 2018, Plaintiff repeatedly asked for Percocet although he
displayed no characteristics of being in pain and was able to walk. Id. at 128-132. Plaintiff was
assessed as being a “master manipulator,” and it was recommended that he be discharged. Id. at
129.
On September 25, 2018, Plaintiff was seen by an orthopedist who recommended an MRI,
additional physical therapy, and analgesics for pain. Id. at 139. The following day, he had a GI
(gastrointestinal) evaluation at UMMS, and was recommended to have a restaging colonoscopy,
start Prednisone at 40mg and taper down 5mg a week, obtain labs and stool studies, and take
Tramadol for pain relief. Id. at 141.
On October 10, 2018, Plaintiff was seen by a rheumatologist at Mercy Medical Center,
where he was diagnosed with a mild but stable avascular necrosis in both hips resulting from high
steroid use. Id. at 148. It did not appear, however, that Plaintiff’s complaints were related to this
condition.

Id.

On October 17, 2018, Plaintiff was seen by an orthopedist at BSH, who

recommended physical therapy for his disc disease at L5-S1 with herniation. Id. at 150-51.
Surgery for calcium subchondroplasty with internal fixation with cannulated screw was
recommended for Plaintiff’s hips. Id.

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On October 19, 2018, Plaintiff was seen by Defendant. Id. at 152-53. Defendant reviewed
Plaintiff’s consults and conditions, prescribed Tramadol l00mg twice daily for pain pending
colonoscopy findings and repair of his hips, discontinued Percocet, and added Baclofen. Id.
Defendant also requested a restaging colonoscopy and orthopedic surgery. Id. On November 1,
2018, Defendant resigned from employment at JCI. See ECF No. 39-3 at 23.
Standard of Review
Defendant’s motion is styled as a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, in
the alternative, for summary judgment under Fed. R. Civ. P. 56. A motion styled in this manner
implicates the Court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See
Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F. Supp. 2d 431, 436-37 (D. Md. 2011).
Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual
disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450
(4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters
outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated
as one for summary judgment under Rule 56,” and “[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d); see
Adams Hous., LLC v. The City of Salisbury, 672 F. App’x. 220, 222 (4th Cir. 2016) (per curiam).
But, when the movant expressly captions its motion “in the alternative” as one for summary
judgment and submits matters outside the pleadings for the court’s consideration, the parties are
deemed to be on notice that conversion under Rule 12(d) may occur; the court “does not have an
obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
253, 261 (4th Cir. 1998).

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Because Defendant filed a motion titled “Motion to Dismiss, or in the Alternative, Motion
for Summary Judgment,” Plaintiff was on notice that the Court could treat Defendant’s motion as
one for summary judgment and rule on that basis. See id. Accordingly, the Court will review
Plaintiff’s claims under the Rule 56(a) standard.
Rule 56(a) provides that summary judgment should be granted “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(a) (emphases added). “A dispute is genuine if ‘a reasonable
jury could return a verdict for the nonmoving party.’” Libertarian Party of Va. v. Judd, 718 F.3d
308, 313 (4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir.
2012)). “A fact is material if it ‘might affect the outcome of the suit under the governing law.’”
Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly, “the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment[.]” Anderson, 477 U.S. at 247-48 (emphasis in original).
The Court must view the evidence in the light most favorable to the nonmoving party, Tolan v.
Cotton, 572 U.S. 650, 656-57 (2014) (per curiam) (citation and quotation omitted), and draw all
reasonable inferences in that party’s favor, Scott v. Harris, 550 U.S. 372, 378 (2007) (citations
omitted); see also Jacobs v. NC. Admin. Office of the Courts, 780 F.3d 562, 568-69 (4th Cir. 2015).
At the same time, the Court must “prevent factually unsupported claims and defenses from
proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir.
2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)).

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Discussion
I.

Plaintiff’s Claims
Defendant asserts that Plaintiff’s claims must be dismissed because: (1) the Complaint is

insufficient in its face; (2) the doctrine of respondeat superior is not recognized in § 1983 claims;
and (3) Plaintiff’s claims of medical negligence are not judicially actionable. ECF No. 39-3 at 2529. Alternatively, Defendant argues that he is entitled to summary judgment because there is no
evidence that he was deliberately indifferent to Plaintiff’s medical needs. Id. at 29-34. In addition,
Defendant contends that Plaintiff does not allege facts sufficient to support a claim for punitive
damages; nor is he entitled to injunctive relief. Id. at 34-35. As previously explained, the Court
will construe Defendant’s motion as one for summary judgment.
Plaintiff’s claims, brought pursuant to 42 U.S.C. § 1983, are based on his Eighth
Amendment right to be free from cruel and unusual punishment. To sustain an Eighth Amendment
claim for denial of adequate medical care, a plaintiff must demonstrate that the defendant’s acts or
omissions amounted to deliberate indifference to a serious medical need. See Estelle v. Gamble,
429 U.S. 97, 106 (1976). Deliberate indifference to a serious medical need requires proof that,
objectively, the prisoner 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 Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008).
Objectively, the medical condition at issue must be serious. Hudson v. McMillian, 503
U.S. 1, 9 (1992). A medical condition is serious when it is “so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” Iko, 535 F.3d at 241 (citation
omitted).
The subjective component requires “subjective recklessness” in the face of the serious

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medical condition. See Farmer v. Brennan, 511 U.S. 825, 839-40 (1994). “True subjective
recklessness requires knowledge both of the general risk, and also that the conduct is inappropriate
in light of that risk.” Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997); see also Jackson v.
Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). “[I]t is not enough that an official should have known
of a risk; he or she must have had actual subjective knowledge of both the inmate’s serious medical
condition and the excessive risk posed by the official’s action or inaction.” Jackson, 775 F.3d at
178 (citations omitted). 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.”
See Farmer, 511 U.S. at 844. “[M]any acts or omissions that would constitute medical malpractice
will not rise to the level of deliberate indifference.” Jackson, 775 F.3d at 178. Thus, “[d]eliberate
indifference is more than mere negligence, but less than acts or omissions done for the very
purpose of causing harm or with knowledge that harm will result.” Scinto v. Stansberry, 841 F.3d
219, 225 (4th Cir. 2016) (citation and internal quotation marks omitted).
Under this standard, a mere disagreement between an inmate and a physician over the
appropriate level of care does not establish an Eighth Amendment violation absent exceptional
circumstances. Id. Further, the right to treatment is “limited to that which may be provided upon
a reasonable cost and time basis and the essential test is one of medical necessity and not simply
that which may be considered merely desirable.” Bowring v. Godwin, 551 F.2d 44, 47-48 (4th
Cir. 1977) (emphasis added).
Construed liberally, Plaintiff’s claims center on Defendant’s alleged failure to provide a
wheelchair and medication for Crohn’s disease or for pain management. In addition, Plaintiff
claims that Defendant violated his constitutional rights by failing to send him to an outside hospital
after an alleged assault on or about January 18, 2018.

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Based on the record, it appears that Plaintiff has been routinely seen and treated by the
medical staff at JCI to address his chronic medical issues. Since January 2018, Plaintiff’s
complaints were assessed and addressed during sick call, scheduled visits, extended stays at the
infirmary, consultations with specialists, and inpatient care at outside hospitals. Plaintiff alleges
that he stopped receiving pain medication at the time he filed the Complaint in April 2018.
However, his medical records indicate that he received Tylenol Extra Strength through March 18,
2018 and restarted on April 10, 2018, Tramadol beginning April 24, 2018, and Baclofen through
May 18, 2018. ECF No. 19-4 at 36, 48. In addition, during that time, the medical staff performed
labs and x-rays, finding no indication for use of a wheelchair. Plaintiff was referred to outside
specialists for a CT scan and GI consultation.
With regard to the treatment Plaintiff received following the alleged assault in January
2018, the Court cannot find that Defendant was deliberately indifferent to his needs. Subjectively,
Defendant’s decision to keep Plaintiff at JCI did not amount to an act or omission “for the very
purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 835. In
the week that followed the incident, Plaintiff was seen six times in the medical unit, at which time
his wounds were cleaned and sutured, and x-rays were ordered to confirm that he had no acute
fracture, dislocation or subluxation. Plaintiff has marshalled no evidence that Defendant exhibited
a callous disregard for a serious medical need. See Estelle, 429 U.S. at 105-06. As previously
indicated, “[d]isagreements 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) (citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3rd Cir. 1970)).
In this case, there are no exceptional circumstances, as Plaintiff’s numerous medical
conditions have been closely monitored by Defendant and the JCI medical staff. On these facts,

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viewed most favorably to Plaintiff, he cannot demonstrate that Defendant callously disregarded
any serious medical needs. Summary judgment is therefore granted in Defendant’s favor.3
II.

Request for Preliminary Injunction
To the extent Plaintiff asks the Court to issue an Order “to protect [him] from any more

harm,” he seeks a preliminary injunction. ECF No. 3 at 3. To obtain a preliminary injunction, a
plaintiff must establish that (1) the plaintiff is likely to succeed on the merits, (2) the plaintiff is
likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities
tips in the plaintiff’s favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008); see Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290
(4th Cir. 2011). Because a preliminary injunction is “an extraordinary remedy . . . [it] may only
be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at
22. The plaintiff must satisfy all four of these requirements. See Pashby v. Delia, 709 F.3d 307,
320-21 (4th Cir. 2013). As discussed above, Plaintiff cannot succeed on the merits of his claim.
Because the first requirement cannot be met, the Court will deny Plaintiff’s request for a
preliminary injunction.
III.

Motion to Appoint Counsel
Prior to Defendant’s filing of his dispositive motion, Plaintiff filed a Motion to Appoint

Counsel. ECF No. 34. The Court may, pursuant to 28 U.S.C. § 1915(e)(1) (2012), appoint an
attorney to represent any person “proceeding in forma pauperis who is “unable to afford counsel.”
In civil actions, however, the Court appoints counsel only in exceptional circumstances. Cook v.
Bounds, 518 F.2d 779, 780 (4th Cir. 1975). In doing so, the Court considers “the type and
complexity of the case,” whether the plaintiff has a colorable claim, and the plaintiff’s ability to

3

In light of the Court’s ruling, it is not necessary to address Defendant’s remaining arguments.

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prosecute the claim. See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) (internal citations
omitted), abrogated on other grounds by Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490
U.S. 296 (1989). Exceptional circumstances include a litigant who “is barely able to read or write,”
id. at 162, or clearly “has a colorable claim but lacks the capacity to present it,” Berry v. Gutierrez,
587 F.Supp.2d 717, 723 (E.D.Va. 2008); see also Altevogt v. Kirwan, No. WDQ-11-1061, 2012
WL 135283, at *2 (D. Md. Jan. 13, 2012). Inherent in this analysis is that one’s indigence alone
is insufficient to establish exceptional circumstances.
Plaintiff claims that he cannot read or write, and that he is having other prison inmates help
him. ECF No. 34. After reviewing Plaintiff’s numerous filings in this case, the Court finds that
he has adequately presented his claims, and his case need not proceed to discovery or a hearing.
For these reasons, appointment of counsel is not warranted.
Conclusion
Defendant’s motion, construed as one for summary judgment, is granted. Plaintiff’s
motions are denied.
A separate Order follows.

Dated this 5th day of June, 2020.
FOR THE COURT:

______________/s/____________________
James K. Bredar
Chief Judge

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