Aurel v. Hallworth et al
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 9/10/2020. (jb5, Deputy Clerk)(c/m-09/10/2020)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CORIZON PROVIDES HEALTHCARE,
HOLLY PIERCE, NPLP 35226
ASRESAHEGN GETACHEW, M.D.,
WILLIAM BEEMAN, RHR 116633, and
ALL THE NBCI NURSES,
Civil Action No. ELH-19-0185
Plaintiff Mich Aurel, who is self-represented, is a Maryland prisoner confined at North
Branch Correctional Institution (“NBCI”).
He filed a civil rights action against multiple
defendants, pursuant to 42 U.S.C. § 1983, as supplemented, alleging that defendants provided
inadequate medical care. ECF 1; ECF 33; ECF 43.
Defendants Holly Pierce, N.P.; Asresahegn Getachew, M.D.; William Beeman, R.N.;
and “all NBCI nurses” have moved to dismiss or for summary judgment (ECF 22), supported
by a memorandum. ECF 22-2. The motion concerns the period of time prior to January 1,
2019, when Wexford Health Sources, Inc. (“Wexford”) was the provider of health care at
NBCI. ECF 22 at 1 n.1. Therefore, although Wexford is not a named defendant, I shall refer
to this motion as the “Wexford Motion,” and I shall refer to the individual defendants as the
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Defendants Corizon Health, Inc. (“Corizon,” misnamed by plaintiff as “Corizon
Provides Health Care”); Holly Pierce, N.P.; Asreshagen Getachew, M.D.; William Beeman,
R.N.; and Rich Hallworth also filed a motion to dismiss or for summary judgment (ECF 30),
supported by a legal memorandum (ECF 30-1). They have submitted numerous exhibits,
including over 350 pages of plaintiff’s medical records. Their motion concerns the period
beginning January 1, 2019, when Corizon became the health care provider at NBCI.
Therefore, I shall refer to this motion as the “Corizon Motion” and I shall refer to the
individual defendants and Corizon collectively as the “Corizon Defendants.”
As is apparent from the outline above, certain individual defendants have worked for
both Wexford and Corizon. Thus, they have moved in both motions.
Defendants John Vanmol, Ken Fields, and the “NBCI Nurses” were never served. And,
Vanmol and Fields have not appeared.
Aurel has filed numerous submissions. See, e.g. ECF 7; ECF 11; ECF 18; ECF 20. He
has also filed an opposition to defendants’ motions. ECF 36. And, Aurel has filed a motion for
a temporary restraining order. ECF 18. He asks defendants to stay “at least five hundred feet
away from plaintiff at all times” and seeks a transfer to another institution.
Id. at 1.
Defendants have filed replies to Aurel’s opposition ECF 34; ECF 37.
Corizon, Pierce, Getachew, Beeman, and Hallworth moved to strike subsequent
submissions to the extent they are surreplies. ECF 40. Surreply memoranda are not permitted
unless otherwise ordered by the court, see Local R. 105.2(a)(2018), and are generally disfavored
in this District. See Chubb & Son v. C & C Complete Servs., LLC, 919 F. Supp. 2d 666, 679 (D.
Md. 2013). However, they may be permitted “when the moving party would be unable to contest
matters presented to the Court for the first time in the opposing party’s reply.” TECH USA, Inc.
v. Evans, 592 F. Supp. 2d 852, 861 (D. Md. 2009). Although this exception is not applicable
here, to the extent any submission is a surreply, I shall deny the motion to strike (ECF 40).
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The motions are ripe for disposition. Upon review of the record, exhibits, and the
applicable law, the Court deems a hearing unnecessary. See Local Rule 105.6. (D. Md. 2018).
For the reasons that follow, the suit shall be dismissed as to defendants Hallworth, Vanmol,
Fields, and the NBCI Nurses. I shall grant the Wexford Motion and the Corizon Motion. And,
I shall deny Aurel’s motion for a temporary restraining order.
A. Procedural History
Aurel, a frequent litigator in this Court,2 filed suit in this case on January 18, 2019.
Because defendant Hallworth is the first named defendant in this suit, and to
distinguish this case from many other cases filed by Aurel, I shall refer to this case as the
On February 25, 2019, I stayed the Hallworth case, pending resolution of Aurel v.
Pierce, et al., Civil Action No. ELH-18-2463 (hereinafter, “Pierce”). I did so because the
cases appeared to involve similar issues and resolution of Pierce might inform the resolution
of this action. See Hallworth, ECF 8.
Aurel has a significant medical history. His various medical conditions and illnesses,
both real and perceived, have been addressed in several prior lawsuits. See, e.g., Aurel v.
Wexford, et al., Civil Action ELH-15-1127, consolidated with ELH-15-1797 (granting
summary judgment to medical defendants; complaints of abdominal, throat and chest pain,
coughing, blurred vision, vomiting, blood in stool, constipation, weakness, ear pain, cancer of
Aurel has filed more than 35 civil cases in this Court. See, e.g., ELH-17-335, ECF 3,
n.2 (listing cases as of February 8, 2017); ELH-17-1201; ELH-18-1251; ELH-18-2463. Most of
the cases have been assigned to me.
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the throat, stomach, pancreas, gallbladder, eye and liver); Aurel v. Wexford, et al., Civil
Action ELH-16-1293 (granting summary judgment to medical defendants; complaints of
lower back and head pain stemming from 2009 fall, destruction of sick call requests, and
denial of back brace); Aurel v. Wexford, et al., Civil Action ELH-18-1251 (granting summary
judgment to medical defendants; complaints of lower back pain, abdominal pain, throat pain,
tongue infection, thyroid, liver, prostate and colon cancers, gastrointestinal problems,
including constipation, ulcers and blood in stool, and hepatitis A & B infection).
In Pierce, ELH-18-2463, Aurel sued Wexford and Holly Pierce.
Pierce is also a
defendant in Hallworth. In Pierce, I issued a 30-page Memorandum Opinion (ECF 30) and
Order on June 4, 2019 (ECF 31), granting the motion to dismiss filed by Wexford and the
motion for summary judgment filed by Pierce.
Pierce involved Aurel’s complaints of abdominal pain; constipation; a colon infection;
blood in stool; an ulcer; infections of the kidneys, stomach, liver, blood, urinary tract,
pancreas and large and small intestines; pain in the right hip, right shoulder, and lower back;
inability to urinate; prostate and thyroid cancer; liver pain; a liver cyst; throat, neck and chest
pain; hoarseness; hypothyroidism; shortness of breath; swollen lymph nodes; and nerve pain.
Some of these ailments were not supported by the medical evidence.
Dr. Getachew, a defendant in Hallworth but not in Pierce, provided an Affidavit in
Pierce on behalf of the defendants. See id., ECF 15-5. It was dated November 21, 2018. Id.
at 8. He referenced plaintiff’s “history of incorrectly diagnosing himself with various medical
ailments,” such as prostate, thyroid, throat, and colon cancer. Id. ¶ 5. He also noted Aurel’s
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medical history of back and hip pain, hypothyroidism, asthma, constipation, hypertrophy of
prostate, cough, hyperlipidemia, and esophageal reflux. Id. ¶ 4.
Then, on August 7, 2019, the Court lifted the stay in the instant case. See Hallworth,
ECF 10. Additionally, the Court consolidated this case with another case, Aurel v. Corizon
Health Services, Inc., et al., ELH-19-2253 (hereinafter, the “Corizon case”), because the two
matters appeared closely connected. See Hallworth, ECF 10; ECF 43.3
As indicated, Wexford provided medical services to inmates at NBCI until January 1,
2019. But, Wexford is not named here as a defendant. On January 1, 2019, Corizon became
the medical provider at NBCI. The defense motions pertain to claims arising before January
1, 2019, when Wexford was the provider, and as of January 1, 2019, when Corizon became
B. Aurel’s Allegations
In this consolidated action, Aurel alleges that defendants have denied him adequate
medical treatment for numerous illnesses and health conditions, as follows: pain in his right
lower back, right shoulder, right side, liver, abdomen; nerve damage; difficulty swallowing;
throat and tongue infections; hoarseness; lumps in his neck; numbness on the right side;
constipation; blood in stool; ulcers; crohne’s disease or colon cancer; inability to urinate;
hypertrophy and enlarged prostate; prostate cancer; hyperthyroidism with dry skin and
itching. Hallworth, ECF 1 at 3-7; ECF 43 at 3. Most of these same medical complaints were
The Complaint filed in the Corizon case, ELH-19-2253, consolidated with Hallworth,
ELH-19-0185, was not docketed as a supplement to the Complaint in Hallworth until August 12,
2020. ECF 43. Thereafter, defendants Corizon, Pierce, Getachew, Beeman, and Hallworth filed
a joint response in opposition to plaintiff’s supplement, apparently not realizing it was simply a
delayed docketing of the Complaint from the consolidated case. ECF 47.
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recently addressed in Pierce, as noted above. The conditions that were not addressed in Pierce
are hypertrophy and enlarged prostate.
Aurel also states that he is periodically denied medications that are prescribed to him,
and he complains that his requests for particular pain medications have been denied. ECF 1 at
4; ECF 43 at 3-4. Additionally, Aurel states that his sick call slips are being ignored and
destroyed by defendants. ECF 1; ECF 43 at 3. Aurel seeks medication for years to come, asks
to see a medical specialist, and seeks compensatory and punitive damages. ECF 1; ECF 43.
C. Wexford Motion
In support of the Wexford Motion, the Wexford Defendants provide Aurel’s
medication history (ECF 44-2) and a detailed chart of Aurel’s prior litigation as well as the
medical issues he has raised. ECF 22 at 4-5. They also incorporate by reference the facts and
arguments set forth in the Corizon Motion (ECF 30). See ECF 34 at 3.
The Wexford Defendants contend that they are entitled to dismissal of most of Aurel’s
claims based on the doctrine of res judicata. In this regard, they point to Aurel’s prior
litigation against Wexford and its employees regarding the same medical issues; the same
health care; and the same medication complaints. The claims not previously litigated concern
destruction of sick call slips; lack of treatment for hypertrophy of the prostate, difficulty
swallowing, and a limp; and the need for a medical mattress. In addition, they contend that
they are entitled to dismissal for failure to state a claim.
According to the Wexford Defendants, Aurel has failed to identify by name those who
are allegedly responsible for destroying sick call slips. They also assert that he has not
suffered harm as a result of such conduct. ECF 22-2 at 9.
As to medical matters, Aurel
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suffers from benign prostatic hyperplasia, involving an enlarged prostate gland that is not
cancerous, and they assert that Aurel fails to connect this condition to any wrongdoing on the
part of the Wexford Defendants. Id. at 9-10.
In addition, the Wexford Defendants contend that Aurel has previously litigated
allegations of denial of treatment for throat and pain infections, and his claim of difficulty
swallowing is the same as the claim that was previously addressed. Id. at 10. Moreover, the
need for a mattress and treatment for a limp are related to previously addressed claims of
nerve, leg, and back pain. Id.
According to the Wexford Defendants, the only remaining claim requiring evaluation
is Aurel’s complaint that his Miralax and Synthroid prescriptions were discontinued. They
submit medication records from August 2018 through January 2019 that counter Aurel’s
allegations and indicate that throughout this period he was provided Miralax and Synthroid
and, on one occasion, he failed to pick up his prescription for Synthroid. ECF 22-2 at 10-11;
D. Corizon Motion
The Corizon Defendants contend they are entitled to dismissal of the suit for failure to
state a claim, or, alternatively, summary judgment. In their view, the record establishes that
they did not violate plaintiff’s rights under the Eighth Amendment. ECF 30 at 1.
In support of the Corizon Motion, the Corizon Defendants provide the declarations of
Asresahegn Getachew, M.D., a licensed physician in Maryland and a Corizon Regional Medical
Director (ECF 30-5); Holly Pierce, a Nurse Practitioner employed by Corizon at NBCI (ECF 306); and William Beeman, R.N., Assistant Director of Nursing at NBCI (ECF 30-7), together with
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Aurel’s verified medical records (ECF 30-3). The medical records submitted date to when
Wexford was the medical provider and are referenced in the declarations. ECF 30-3, ECF 30-5,
Dr. Getachew submitted his Declaration in this case in November 2019, addressing
Aurel’s medical conditions and complaints. ECF 30-5. At the time, Aurel was 54 years of age.
Id. ¶ 5. The Declaration is fifteen pages in length and is replete with references to Aurel’s
interactions with the health care providers at NBCI for a variety of ailments. Dr. Getachew also
reviewed plaintiff’s various medical conditions.
According to Dr. Getachew, Aurel has been diagnosed with hypothyroidism. Id. ¶ 5(a).
Dr. Getachew describes hypothyroidism as a condition where the thyroid gland produces
insufficient hormones. It is a benign condition controlled by replacing the missing hormone with
the medication Synthroid (“levothyroxine”), which has been prescribed to Aurel. Id. ¶¶ 5(a), 9;
ECF 30-3 at 84.
Hypothyroidism can cause dry skin that medication compliance and over-the-counter
lotion can address. ECF 30-5, ¶ 5(a). Aurel is regularly monitored to assure proper medication
dosage. Id. Getachew opines that Aurel is not always medication compliant. Of relevance,
multiple physical examinations have confirmed that Aurel does not have thyroid cancer. Id. ¶
Further, Getachew states that Aurel is receiving treatment for constipation, and has been
evaluated by a GI specialist. Id. ¶ 5(b). Aurel has been diagnosed with gastroesophageal reflux
disease (“GERD”), a condition where stomach acid can enter the esophagus and cause abdominal
pain, difficulty swallowing, and chest pain.
Id. ¶ 5(d).
Aurel’s complaints of difficulty
swallowing may relate to his GERD. Id. ¶ 34. As the GI specialist recommended, Aurel is being
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treated with Prilosec, a proton pump inhibitor, and also educated on behavioral changes
regarding eating habits. Id. ¶¶ 5(d), 37.
Aurel was referred to a GI specialist on July 11, 2018, after his stool tested positive for
blood. Id. ¶ 7. Dr. Getachew evaluated plaintiff on August 7, 2018. Id. ¶ 8. He was provided
with several medications for pain management. Id. Also on August 7, 2018, Dr. Getachew
advised Aurel that recent imaging revealed a liver cyst, but there was no indication of cancer. Id.
¶ 9; see also id. ¶ 12. As a precaution, an abdominal ultrasound was to be performed in
approximately six months and to be repeated every six months. Id. ¶ 9; see ECF 30-3 at 84.
On December 24, 2018, Aurel had a GI consult and the medication Miralax was
recommended, along with a high fiber diet. The GI opined that blood with bowel movements is
likely caused from hemorrhoids, which are usually benign, and he planned lab work for various
conditions. However, there was no indication that Aurel has colon cancer. ECF 30-5, ¶ ¶ 5(b),
In addition, Aurel has been diagnosed with Benign Hypertrophy of the Prostate (“BPH”).
Id. ¶ 5(c). Getachew describes this as an enlarged prostate, which is a “regular occurrence as a
man ages.” Id. It is a harmless condition unless the enlarged prostate interferes with urination.
Aurel has refused physical exams by medical providers that would allow this assessment. But,
Aurel has been prescribed medication for this condition and his PSA level is “regularly
monitored.” Id. Aurel was seen by a GI specialist who did not note any issues as part of a rectal
exam. And, “there is no indication that he has prostate cancer.” Id.
In addition, Aurel suffers from chronic back pain. Id. ¶ 6(e). Getachew states that Aurel
has osteoarthritis and degeneration in his spine. Plaintiff has been evaluated by a specialist and
receives medication. Id.
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On July 5, 2018, Aurel had an MRI of his lumbar and cervical spine. Id. ¶ 6; ECF 30-2 at
226-27, 229-30, 347-50.
The MRI revealed osteoarthritis, but did not indicate an “acute
condition requiring immediate intervention.” Id. On July 27, 2018, Aurel was referred to an
orthopedist for back pain. Id. ¶ 7.
Aurel was evaluated by Dr. Carls, an orthopedist, on November 2, 2018, because Aurel
reported that his symptoms “had become more severe . . . .” Id. ¶ 16. Dr. Carls recommended a
referral to a spine surgeon for evaluation.
Aurel was wearing a back brace at this
appointment. Id. On November 20, 2018, Aurel was referred for a neurology consult based on
the recommendation of the orthopedist. Id. ¶ 17.
On March 20, 2019, Aurel had a neurosurgical consult at the University of Maryland
Neurosurgery Clinic. Id. ¶ 24. The physician, Dr. Han, noted the “extensive diagnostic imaging
and evaluation” Aurel had previously received and reviewed the MRI from November 2018. Dr.
Hann recommended a CT scan of plaintiff’s cervical and lumbar spine, without contrast;
EMG/NCS studies of the right upper and lower extremities; a trial of the medication Gabapentin;
and then a return to the clinic for further evaluation.
In response to Aurel’s belief that he has conditions such as liver cancer, colon cancer,
kidney issues, Crohn’s disease, and ulcers, he has received multiple examinations, diagnostic
imaging exams, and lab work that have ruled out indications of cancer. Also, lab work indicates
Aurel’s kidneys continue to function well. See, e.g., id. ¶ 37.
Electromyography (EMG) and Nerve Conduction Studies (NCS) are used to measure
measure whether the muscle is healthy or affected by a disease of the muscle of nerve.
https://www.hopkinsmyositis.org/unique/diagnosis-myositis/tests/emg-ncs/ (last visited 8/19/20.)
Gabapentin is sold under the brand name Neurontin. https://www.mayoclinic.org/drugssupplements/gabapentin-oral-route/description/drg-20064011 (last visited 8/21/20).
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Aurel complains that he does not always receive his medications. Both Pierce and
Getachew responded to these allegations in their declarations. See ECF 30-5; ECF 30-6. The
records reflect medical appointments with Aurel at which medication requests, prescriptions, and
compliance were discussed.
Dr. Getachew prescribed multiple pain medications on August 7, 2018, including
Baclofen (muscle relaxer); Nortriptyline (a tricyclic antidepressant used for chronic pain);
Effexor (used for neuralgia); Mobic (nonsteroidal anti-inflammatory); and Capsaicin (used
topically). ECF 30-5, ¶ 8. Aurel requested two additional pain medications that Getachew did
not provide. Instead, Getachew provided instruction on exercising to improve flexibility and
On January 20, 2019, Aurel requested a prescription for Baclofen, as his prescription had
expired on October 10, 2018. Aurel had previously reported to the orthopedist that Baclofen did
not help, and he was instead referred to the provider for evaluation. Id. ¶ 19; ECF 30-3 at 53.
Pierce evaluated Aurel on January 25, 2019. ECF 30-5, ¶ 20. She denied his request for
Baclofen, a prescription for Tylenol #3, and an increase in his dose of Nortriptyline. Id. Pierce
did not order Baclofen or Tylenol #3 as Baclofen is “subject to abuse” and Tylenol #3 is an
opioid, not indicated for chronic pain. Id. ¶ 20(b). She noted “concerning behavior,” including
an exaggerated gait, animated body language, and inappropriate laughing. Id.
On February 11, 2019, Pierce saw plaintiff for constipation. Id. ¶ 21. And, on March 4,
2019, Aurel was again evaluated by Pierce. Id. ¶ 22. He had numerous complaints. Id. Plaintiff
believed he had “aggressive liver cancer,” id. ¶ 22(a), but an ultrasound showed hepatic steatosis
and a cyst, consistent with a CT in 2015. Id. He also believed he had a stomach infection. Id.
Moreover, he believed his kidneys were “shutting down,” but lab work did not reflect a problem.
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Id. ¶ 6(b).
Plaintiff requested something “stronger for his pain.” Id. ¶ 22(c). But, lab worked
showed he was not taking his prescribed medications of Nortriptyline or Effexor, and they were
discontinued, along with Mobic. Id.
In her Declaration (ECF 30-6), Pierce notes that Aurel has “‘self diagnosed’” with
multiple illnesses and continues to place numerous sick calls each week regarding the same
ailments. Id. ¶ 14. He is being seen monthly for repetitive sick calls. Id. These will be
addressed through chronic care. Id. Aurel will also work with the “mental health team.” Id.
II. Standards of Review
A defendant may test the legal sufficiency of a complaint by way of a motion to
dismiss under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v.
Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616
F.3d 393, 408 (4th Cir. 2010), aff’d sub nom. McBurney v. Young, 569 U.S. 221 (2013);
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion
constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the
complaint fails as a matter of law “to state a claim upon which relief can be granted.” In
reviewing a Rule 12(b)(6) motion, 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) (citations omitted); see Reyes v. Waples Mobile Home Park Ltd. P’ship,
903 F.3d 415, 423 (2018); Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir.
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2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011).
Whether a complaint states a claim for relief is assessed by reference to the pleading
requirements of Fed. R. Civ. P. 8(a)(2). The purpose of the rule is to provide the defendants
with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007).
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Twombly, 550 U.S. at
573; see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002) (stating that a complaint
need only satisfy the “simplified pleading standard” of Rule 8(a)). But, the Supreme Court has
explained that a “plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted; alteration in
Moreover, to survive a motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Twombly, 550 U.S. at 570); see Paradise Wire &
Cable Defined Benefit Pension Fund Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019); Willner
v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “But where the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the
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complaint has alleged -- but it has not ‘show[n]’ -- ‘that the pleader is entitled to relief.’” Id.
at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
Mere “‘naked assertions’ of wrongdoing” are generally insufficient to state a claim for
relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation omitted); see
Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). Put another way, “an
unadorned, the-defendant-unlawfully-harmed-me accusation” does not state a plausible claim
for relief. Iqbal, 556 U.S. at 678. Rather, to satisfy the minimal requirements of Rule 8(a)(2),
the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable
cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is
very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted).
A court is not required to accept legal conclusions drawn from the facts. See Papasan
v. Allain, 478 U.S. 265, 286 (1986). “A court decides whether [the pleading] standard is met
by separating the legal conclusions from the factual allegations, assuming the truth of only the
factual allegations, and then determining whether those allegations allow the court to
reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Soc’y Without a
Name v. Comm’w of Va., 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937
Nonetheless, the complaint does not need “detailed factual allegations” to survive a
motion to dismiss. Twombly, 550 U.S. at 555. Instead, “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in
the complaint.” Id. at 563. Moreover, federal pleading rules “do not countenance dismissal of
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a complaint for imperfect statement of the legal theory supporting the claim asserted.”
Johnson v. City of Shelby, Miss., 574 U.S. 10, 135 S. Ct. 346, 346 (2014) (per curiam).
Courts generally do not “resolve contests surrounding the facts, the merits of a claim,
or the applicability of defenses” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243
(quotation marks and citation omitted). But, “in the relatively rare circumstances where facts
sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be
reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494
F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability
Plan, 533 F.3d 334, 336 (4th Cir. 2009); see also U.S. ex rel. Oberg v. Penn. Higher Educ.
Assistance Agency, 745 F.3d 131, 148 (4th Cir. 2014). However, because Rule 12(b)(6) “is
intended [only] to test the legal adequacy of the complaint,” Richmond, Fredericksburg &
Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies . . .
if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the
complaint.’” Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis in
Goodman); see Dean v. Pilgrim’s Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005).
In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6 ) motion,
a court ordinarily “may not consider any documents that are outside of the complaint, or not
expressly incorporated therein . . . .” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557
(4th Cir. 2013); see Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). “Generally,
when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts are limited to
considering the sufficiency of allegations set forth in the complaint and the ‘documents
attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int’l, Ltd., 780
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F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co., 637 F.3d at 448).
Under limited circumstances, however, when resolving a Rule 12(b)(6) motion, a court may
consider documents beyond the complaint without converting the motion to dismiss to one for
summary judgment. Goldfarb, 791 F.3d at 508.
In particular, a court may consider documents that are “explicitly incorporated into the
complaint by reference and those attached to the complaint as exhibits.” Goines, 822 F.3d at
166; see also Fed. R. Civ. P. 10(c); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007); Paradise Wire & Cable, 918 F.3d at 318. Notably, “[w]hen the plaintiff attaches
or incorporates a document upon which his claim is based, or when the complaint otherwise
shows that the plaintiff has adopted the contents of the document, crediting the document over
conflicting allegations in the complaint is proper.” Goines, 822 F.3d at 167. Conversely,
“where the plaintiff attaches or incorporates a document for purposes other than the
truthfulness of the document, it is inappropriate to treat the contents of that document as true.”
Goines, 822 F.3d at 167. Therefore, “before treating the contents of an attached or
incorporated document as true, the district court should consider the nature of the document
and why the plaintiff attached it.” Id. (citing N. Ind. Gun & Outdoor Shows, Inc. v. City of S.
Bend, 163 F.3d 449, 455 (7th Cir. 1998)).
A court may also “consider a document submitted by the movant that was not attached
to or expressly incorporated in a complaint, so long as the document was integral to the
complaint and there is no dispute about the document’s authenticity.” Goines, 822 F.3d at 166
(citations omitted); see Six v. Generations Fed. Credit Union, 891 F.3d 508, 512 (4th Cir.
2018); Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert. denied, U.S. ,
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138 S. Ct. 558 (2017); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir.
2014); U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir.
2014) (citation omitted); Kensington Volunteer Fire Dep’t. v. Montgomery Cty., 684 F.3d 462,
467 (4th Cir. 2012); Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234
(4th Cir. 2004), cert. denied, 543 U.S. 979 (2004); Phillips v. LCI Int’l Inc., 190 F.3d 609,
618 (4th Cir. 1999). To be “integral,” a document must be one “that by its ‘very existence,
and not the mere information it contains, gives rise to the legal rights asserted.’” Chesapeake
Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011)
(citation omitted) (emphasis in original). See also Fed. R. Civ. P. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”).
Here, defendants argue that Aurel’s claims do not survive analysis under Rule
12(b)(6). Defendants also provide documentary evidence suggesting that Aurel nonetheless
has received constitutionally adequate treatment for his various medical conditions. These
documents are not intrinsic to Aurel’s Complaint, however. Therefore, they may only be
considered in the context of a motion for summary judgment.
As noted, the motions are styled as motions 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).
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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 Housing, LLC v. The City of Salisbury, Maryland, 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).
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 that conversion under Rule 12(d) may occur. See Moret v. Harvey, 381
F.Supp.2d 458, 464 (D. Md. 2005). Further, Aurel was provided notification by the Clerk of
Defendants’ dispositive filings and the opportunity to reply with exhibits and declarations. (ECF
Nos. 24, 31.)
Summary judgment is generally inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
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637 F.3d 435, 448-49 (4th Cir. 2011); see Putney v. Likin, 656 F. App’x 632, 638 (4th Cir.
2016) (per curiam); McCray v. Maryland Dep't of Transportation, 741 F.3d 480, 483 (4th Cir.
2015). However, “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)); see also Dave & Buster’s, Inc. v.
White Flint Mall, LLLP, 616 F. App’x 552, 561 (4th Cir. 2015).
To raise adequately the issue that discovery is needed, the nonmovant typically must
file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why,
“for specified reasons, it cannot present facts essential to justify its opposition,” without
needed discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit
requirement of former Rule 56(f)). “[T]o justify a denial of summary judgment on the grounds
that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be
‘essential to [the] opposition.’” Scott v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D.
Md. 2011) (alteration in original) (citation omitted). A nonmoving party’s Rule 56(d) request
for additional discovery is properly denied “where the additional evidence sought for
discovery would not have by itself created a genuine issue of material fact sufficient to defeat
summary judgment.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir.
1995); see McClure v. Ports, 914 F.3d 866, 874-75 (4th Cir. 2019); Gordon v. CIGNA Corp.,
890 F.3d 463, 479 (4th Cir. 2018); Amirmokri v. Abraham, 437 F. Supp. 2d 414, 420 (D. Md.
2006), aff’d, 266 F. App’x 274 (4th Cir. 2008), cert. denied, 555 U.S. 885 (2008).
Case 1:19-cv-00185-ELH Document 49 Filed 09/10/20 Page 20 of 38
If a nonmoving party believes that further discovery is necessary before consideration of
summary judgment, the party fails to file a Rule 56(d) affidavit at his peril, because “‘the failure
to file an affidavit . . . is itself sufficient grounds to reject a claim that the opportunity for discovery
was inadequate.’” Harrods, 302 F.3d at 244 (citations omitted). But, the nonmoving party’s
failure to file a Rule 56(d) affidavit cannot obligate a court to issue a summary judgment ruling
that is obviously premature. And, a court “should hesitate before denying a Rule 56(d) motion
when the nonmovant seeks necessary information possessed only by the movant.” Pisano v.
Strach, 743 F.3d 927, 931 (4th Cir. 2014).
Although the Fourth Circuit has placed “‘great weight’” on the Rule 56(d) affidavit, and
has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and the need for additional
discovery in a memorandum of law in opposition to a motion for summary judgment is not an
adequate substitute for [an] affidavit,’” the appellate court has “not always insisted” on a Rule
56(d) affidavit. Id. (internal citations omitted). According to the Fourth Circuit, failure to file an
affidavit may be excused “if the nonmoving party has adequately informed the district court that
the motion is premature and that more discovery is necessary” and the “nonmoving party’s
objections before the district court ‘served as the functional equivalent of an affidavit.’” Id. at
244-45 (internal citations omitted); see also Putney, 656 F. App’x at 638; Nader v. Blair, 549
F.3d 953, 961 (4th Cir. 2008). “This is especially true where, as here, the non-moving party is
proceeding pro se.” Putney, 656 F. App’x at 638.
Aurel has not filed an affidavit under Rule 56(d), nor has he objected to defendants’
motions under principles of summary judgment. Further, defendants have provided Aurel with
extensive and updated medical records filed with the court. Thus, the Court is satisfied that it
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is appropriate to address defendants’ motions, in part, as motions for summary judgment, as
this will facilitate resolution of the case.
Summary judgment is governed by Fed. R. Civ. P. 56(a), which provides, in part: “The
court shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” The Supreme Court has
clarified that this does not mean that any factual dispute will defeat the motion. “By its very terms,
this standard provides that the mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original).
A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id.
at 248. There is a genuine issue as to material fact “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.; see Sharif v. United Airlines, Inc., 841 F.3d
199, 2014 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party
of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).
“A party opposing a properly supported motion for summary judgment ‘may not rest upon
the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing
that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d
514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)), cert. denied, 541
U.S. 1042 (2004). And, the court must “view the evidence in the light most favorable to . . . the
nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or
assessing the witnesses’ credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639,
645 (4th Cir. 2002); see Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625,
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628 (4th Cir. 2017); Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017); FDIC v. Cashion,
720 F.3d 169, 173 (4th Cir. 2013).
Notably, the district court’s “function” is not “to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S.
at 249; accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, the
trial court may not make credibility determinations on summary judgment. Jacobs v. N.C.
Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank
v. French, 499 F.3d 345, 352 (4th Cir. 2007); Black & Decker Corp. v. United States, 436 F.3d
431, 442 (4th Cir. 2006); Dennis, 290 F.3d at 644-45. Therefore, in the face of conflicting
evidence, such as competing affidavits, summary judgment is generally not appropriate, because
it is the function of the factfinder to resolve factual disputes, including matters of witness
Because plaintiff is self-represented, his submissions are liberally construed. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007). But, the court must also abide by the “‘affirmative obligation
of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.’”
Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d
774, 778–79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
In sum, to counter a motion for summary judgment, there must be a genuine dispute as to
material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–86
(1986). “A court can grant summary judgment only if, viewing the evidence in the light most
favorable to the non-moving party, the case presents no genuine issues of material fact and the
moving party demonstrates entitlement to judgment as a matter of law.” Iraq Middle Mkt. Dev.
Found. v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017).
Case 1:19-cv-00185-ELH Document 49 Filed 09/10/20 Page 23 of 38
III. Section 1983
Section 1983 of Title 42 of the United States Code provides that a plaintiff may file suit
against any person who, acting under color of state law, “subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws” of the United States.
42 U.S.C. § 1983; see, e.g., Filarsky v. Delia, 566 U.S. 377 (2012); see also Owens v. Baltimore
City State’s Attorney’s Office, 767 F.3d 379 (4th Cir. 2014), cert. denied sub nom. Balt. City
Police Dep’t v. Owens, 575 U.S. 983 (2015). However, § 1983 “‘is not itself a source of
substantive rights,’ but provides ‘a method for vindicating federal rights elsewhere conferred.’”
Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3
(1979)); see Safar v. Tinsley, 859 F.3d 241, 245 (4th Cir. 2017).
In other words, § 1983 allows “a party who has been deprived of a federal right under the
color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526
U.S. 687, 707 (1999). But, to seek redress under § 1983, it is not enough merely to allege a
violation of federal law; a violation of a federal right is required. Carey v. Throwe, 957 F.3d 468,
479 (4th Cir. 2020).
“The first step in any such claim is to pinpoint the specific right that has been infringed.”
Safer, 859 F.3d at 245. To state a claim under § 1983, a plaintiff must allege (1) that a right
secured by the Constitution or laws of the United States was violated, and (2) that the alleged
violation was committed by a “person acting under the color of state law.” West v. Atkins, 487
U.S. 42, 48 (1988); see Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019); Crosby v. City of
Gastonia, 635 F.3d 634, 639 (4th Cir. 2011), cert. denied, 565 U.S. 823 (2011); Wahi v.
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Charleston Area Medical Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009); Jenkins v. Medford, 119
F.3d 1156, 1159-60 (4th Cir. 1997).
The phrase “under color of state law” is an element that “‘is synonymous with the more
familiar state-action requirement—and the analysis for each is identical.’” Davison, 912 F.3d at
679 (quoting Philips v. Pitt Cty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009)); see
also Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982)). A person acts under color of state
law “only when exercising power ‘possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.’” Polk Cty. v. Dodson, 454 U.S.
312, 317-18 (1981) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); see also
Philips, 572 F.3d at 181 (“[P]rivate activity will generally not be deemed state action unless the
state has so dominated such activity as to convert it to state action: Mere approval of or
acquiescence in the initiatives of a private party is insufficient.”) (citations and internal quotation
Of import here, § 1983 liability may extend to a private entity operating under color of
state law, including private prison health care providers. See, e.g., West, 487 U.S. at 49; Polk,
454 U.S. at 320; Rodriguez v. Smithfield Packing Co., Inc., 338 F.3d 348, 355 (4th Cir. 2003);
Austin v. Paramount Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999). Thus, Corizon may be
subject to suit under § 1983.5 See Rodriguez, 338 F.3d at 355 (observing that principles of §
1983 municipal liability apply to a private corporation acting under color of state law).
Notably, § 1983 requires a showing of personal fault based upon a defendant’s own
conduct. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (stating that for an individual
defendant to be held liable pursuant to 42 U.S.C. § 1983, the plaintiff must affirmatively show
As noted, plaintiff did not sue Wexford.
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that the official acted personally to deprive the plaintiff of his rights). In other words, there is no
respondeat superior liability under § 1983.
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.”). Therefore, liability based on respondeat superior does not apply to a § 1983
action. See Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017); Love-Lane v. Martin, 355 F.3d
766, 782 (4th Cir. 2004); Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).
Liability of supervisory officials under § 1983 “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) (citing Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.
1984)); see Campbell v. Tatarsky, ___ F.3d ___, 2020 WL ______, at *____, (slip op. at 22) (4th
Cir. Aug. 20, 2020). With respect to a supervisory liability claim in a § 1983 action, a plaintiff
(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 . . . 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 omitted), cert. denied, 513 U.S. 813
(1994); see also Wilcox, 877 F.3d at 170.
Defendants seek dismissal under Federal Rules of Civil Procedure 12(b)(6) or summary
judgment under Rule 56. The Wexford Defendants argue (1) all but two of Aurel’s claims are
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barred by res judicata; (2) Aurel fails to state a claim as to the destruction of sick call slips; and
(3) defendants were not deliberately indifferent to a serious medical need regarding the
remaining allegations. ECF 22. The Corizon Defendants argue (1) Aurel fails to state a claim;
and (2) the Corizon Defendants were not deliberately indifferent to a serious medical need. ECF
In the caption of his Complaint, Aurel names Vanmol, Fields, and the NBCI Nurses as
defendants. But, there are no allegations in the suit pertaining to these individuals. Nor is there
any indication that service was ever effected on them, in accordance with Fed. R. Civ. P. 4.
Therefore, I shall dismiss the suit as to all of them, under both Rule 4 and Rule 12(b)(6).
Aurel also names Rich Hallworth as a defendant. Yet, he provides no allegations about
him. According to Corizon, Hallworth is a former CEO of Corizon, but has not served in that
position since January 1, 2019. ECF 30-1 at 3-4. Plaintiff did not respond to Corizon’s motion
to dismiss Hallworth from this action, based on the absence of allegations that Hallworth was
involved in plaintiff’s medical care and the fact that there is no respondeat superior liability
under 42 U.S.C. § 1983. ECF 30-1 at 18; ECF 37 at 9. I shall dismiss the suit as to Hallworth,
for failure to state a claim.
In addition, Aurel names Beeman as a defendant. But, he fails to include any allegations
regarding Beeman. Aurel fails to respond to this point in Corizon’s Motion. ECF 37 at 9-10.
Therefore, I shall dismiss the suit as to Beeman, for failure to state a claim, pursuant to Fed. R.
Civ. P. 12(b)(6).
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On June 4, 2019, in Pierce, supra, the Court granted Wexford’s motion to dismiss and
Pierce’s motion for summary judgment with regard to Aurel’s Eighth Amendment claims
concerning medical care. And, Aurel filed numerous cases prior to Pierce, alleging Eighth
Amendment violations for a host of medical claims. At issue here is the defendants’ treatment of
Aurel for a multitude of medical conditions, most of which were reviewed in the prior actions. It
is against this backdrop that the Court now reviews the pending motions.
As indicated, this action was stayed pending the outcome of Pierce, because of the
similarity of issues. In Pierce, I concluded that Aurel’s Eighth Amendment right to adequate
medical care was not violated in regard to an extensive list of medical ailments. Pierce, ECF 30;
ECF 31. The Wexford Defendants now move to dismiss on the basis of res judicata, arguing that
Aurel is precluded from bringing claims regarding the same medical issues as alleged in Pierce.
Hallworth, ECF 22; ECF 22-2.
Res judicata, also known as claim preclusion, is a legal doctrine that promotes judicial
efficiency and the finality of decisions. In re Microsoft Corp Antitrust Litigation, 355 F.3d 322,
325 (4th Cir. 2004). Under the doctrine of res judicata, “a final judgment on the merits” in an
earlier action precludes the parties or their privies from relitigating claims that were raised or that
could have been raised based on the same cause of action. Montana v. United States, 440 U.S.
147, 153 (1979); see SAS Inst., Inc. v. World Programming Ltd., 847 F.3d 370, 378 (4th Cir.
2017); Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 161 (4th Cir. 2008). Res judicata
applies when there is: (1) a final judgment on the merits in a prior lawsuit; (2) an identity of the
cause of action in both the earlier and later suits; and (3) an identity of parties or their privies in
the two suits. Pueschel v. United States, 369 F.3d 345, 354-55 (4th Cir. 2004).
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The doctrine is intended to preclude parties from “contesting matters that they have had a
full and fair opportunity to litigate,” thereby conserving judicial resources and minimizing the
possibility of inconsistent decisions. Montana, 440 U.S. at 153-54. At bottom, res judicata is a
“‘practical’ doctrine” that asks “whether the party has previously had a fair shot with respect to
the claims raised in the present action.” SAS Inst., 847 F.3d at 378 (citation omitted). The
doctrine has manifest benefits; it protects litigants from vexatious litigation, conserves judicial
resources, promotes efficiency, and minimizes the risk of inconsistent judgments. See Montana,
440 U.S. at 153-54; SAS Inst., 847 F.3d 3at 378; Laurel Sand & Gravel, 519 F.3d at 161-62.
Res judicata is not restricted to claims actually adjudicated in the prior litigation,
however. It also bars claims that could have been brought. The Fourth Circuit has said: “Not
only does res judicata bar claims that were raised and fully litigated, it prevents litigation of all
grounds for, or defenses to, recovery that were previously available to the parties, regardless of
whether they were asserted or determined in the prior proceeding.” Peugeot Motors of America,
Inc. v. E. Auto Distrib., Inc., 892 F.2d 355, 359 (4th Cir. 1989). Notably, “[t]he rule against
claim splitting ‘prohibits a plaintiff from prosecuting its case piecemeal and requires that all
claims arising out of a single wrong be presented in one action.’” Lee v. Norfolk S. Ry. Co., 802
F.3d 626, 635 (4th Cir. 2015) (quoting Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 273
Fed.Appx. 256, 265 (4th Cir. 2008)).
A cause of action is “identical” for purposes of res judicata if it “involves a right arising
out of the same transaction or series of connected transactions that gave rise to the claims in the
first action.” Harnett v. Billman, 800 F.2d 1308, 1314 (4th Cir. 1986); see Clodfelter v. Republic
of Sudan, 720 F.3d 199, 210 (4th Cir. 2013) (“[W]e follow the ‘transactional’ approach when
considering whether causes of action are identical: ‘As long as the second suit ‘arises out of the
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same transaction or series of transactions as the claim resolved by the prior judgment,’ the first
suit will have preclusive effect.’” (Citation omitted)); In re Varat Enterprises, Inc., 81 F.3d
1310, 1316 (4th Cir. 1996).
A party is “in privity for purposes of res judicata where he is “‘so identified in interest
with a party to former litigation that he represents the same legal right in respect to the subject
matter involved.” Martin v. Am. Bancorporation Ret. Plan, 407 F.3d 643, 651 (4th Cir. 2005)
(citation omitted). Moreover, “[p]rivity exists where a plaintiff attempts to relitigate the same
claim by naming different governmental entities and employees as defendants.” Kayzakian v.
Buck, 865 F.2d 1258 (Table), at *2 (4th Cir. 1988) (per curiam) (citing Mears v. Town of Oxford,
Md., 762 F.2d 368, 371 n.3 (4th Cir. 1985)).
In other words, privity attaches where the interests of the parties to a given lawsuit align.
Jones v. S.E.C., 115 F.3d 1173, 1181 (4th Cir. 1997). Holly Pierce is named as a defendant in
both cases. Wexford was named in Pierce, not in Hallworth. But, Wexford’s health care
providers are named in Hallworth. And, Dr. Getachew, who is named here, defended the suit
against Wexford in Pierce. As noted, he submitted a Declaration reviewing plaintiff’s ailments.
Similarly, the defendants in this case assert the same defense and rely on the same or similar
facts to do so. Although the two defendants sued in Pierce are not precisely the same as the
defendants named in the instant suit, the parties need not be identical for res judicata to apply.
Providence Hall Associates Ltd. P'ship v. Wells Fargo Bank, N.A., 816 F.3d 273, 282 (4th Cir.
2016). In my view, there is privity between the defendants sued in Pierce and the Wexford
Defendants who are sued in Hallworth.
The Wexford Defendants have provided a concise summary of previous litigation filed by
Aurel, indicating the nature of his medical allegations and the case in which each claim was
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raised. ECF 22-2 at 4-5. They also demonstrate the relationship of various health care providers
who have been sued by Aurel for purposes of privity. Id. at 8. And, they argue that res judicata
precludes litigation of all claims against the Wexford Defendants, asserting that although “some
of the named defendants are not repeated,” they are “all in privity with each other.” Id. at 7.
The Wexford Defendants cite to cases dating to 2015, without indicating how the nature
of the claim, aside from a bare label of the medical condition, contains the same allegations or
pertains to the same action on the part of the defendants in the instant case. Id. at 4-5. But, there
is insufficient information on this record to rule that all claims addressed in the long history of
prior litigation with Aurel should be dismissed in this action based on res judicata.
However, as to the claims recently at issue in Pierce, an extensive record was presented
in that matter and considered by the Court.
Aurel has failed to provide sufficient facts
supporting a claim that his medical claims in this action differ from those in Pierce with respect
to the named defendants here, who were parties or in privity. Therefore, to the extent that the
medical claims adjudicated in Pierce are identical to those asserted here, those particular claims
are barred by res judicata.
As to plaintiff’s claims concerning hypertrophy of the prostate and the provision of
medication, res judicata does not apply. Similarly, Aurel’s allegations that defendants destroyed
and ignored sick call slips are not barred by res judicata, and will be considered as part of his
Eighth Amendment claim of deliberate indifference.
In this regard, and alternatively, I note that, even if res judicata does not apply as to
Hallworth, I reach the same result for the Wexford Defendants as I reach for the Corizon
Defendants, discussed infra: there is no viable Eighth Amendment claim.
Case 1:19-cv-00185-ELH Document 49 Filed 09/10/20 Page 31 of 38
The Eighth Amendment prohibits “unnecessary and wanton infliction of pain” by virtue
of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173
(1976); see also Estelle v. Gamble, 429 U.S. 97, 102 (1976); King v. Rubenstein, 825 F.3d 206,
218 (4th Cir. 2016); Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016). It protects the
rights of convicted prisoners. Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001) (“‘[T]he State
does not acquire the power to punish with which the Eighth Amendment is concerned until after
it has secured a formal adjudication of guilt in accordance with due process of law.’”) (quoting
Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977)). And, “[i]t is beyond debate that a ‘prison
official’s deliberate indifference to an inmate’s serious medical needs constitutes cruel and
unusual punishment under the Eighth Amendment.’” Gordon v. Schilling, 937 F.3d 348, 356
(4th Cir. Sept. 4, 2019) (citation omitted).
“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)). The protection conferred by the
Eighth Amendment imposes on prison officials an affirmative “obligation to take reasonable
measures to guarantee the safety of . . . inmates.” Whitley v. Albers, 475 U.S. 312, 319-20
(1986); see Farmer v. Brennan, 511 U.S. 825, 832 (1994); Raynor v. Pugh, 817 F.3d 123, 127
(4th Cir. 2016).
In general, the deliberate indifference standard applies to cases alleging failure to
safeguard the inmate’s health and safety, including failure to protect inmates from attack,
inhumane conditions of confinement, and failure to render medical assistance. See Farmer, 511
U.S. 834; Wilson, 501 U.S. at 303; Thompson v. Virginia, 878 F.3d 89, 97 (4th Cir. 2017).
Case 1:19-cv-00185-ELH Document 49 Filed 09/10/20 Page 32 of 38
Moreover, “[t]he necessary showing of deliberate indifference can be manifested by prison
officials in responding to a prisoner’s medical needs in various ways, including intentionally
denying or delaying medical care, or intentionally interfering with prescribed medical care.”
Formica v. Aylor, 739 F. App’x 745, 754 (4th Cir. 2018) (emphasis in Formica).
The deliberate indifference standard is analyzed under a two-pronged test: “(1) the
prisoner must be exposed to ‘a substantial risk of serious harm,’ and (2) the prison official must
know of and disregard that substantial risk to the inmate’s health or safety.” Thompson, 878 F.3d
at 97-98 (quoting Farmer, 511 U.S. at 834, 837-38); see Heyer v. U.S. Bureau of Prisons, 849
F.3d 202, 209 (4th Cir. 2017). The Fourth Circuit has characterized the applicable standard as an
“exacting” one. Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014).
For a plaintiff prisoner to prevail in a suit alleging the denial of adequate medical care,
the defendant’s actions or inaction must amount to deliberate indifference to a serious medical
need. See Estelle, 429 U.S. at 106; Lightsey, 775 F.3d at 178; Iko v. Shreve, 535 F.3d 225, 241
(4th Cir. 2008). A “‘serious . . . medical need’” is “‘one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.’” Iko, 535 F.3d at 241 (quoting Henderson v. Sheahan,
196 F.3d 839, 846 (7th Cir. 1999)); see Scinto, 841 F.3d at 228.
Deliberate indifference to a serious medical need requires proof that, objectively, the
plaintiff was suffering from a serious medical need and that, subjectively, the defendant was
aware of the need for medical attention but failed either to provide it or to ensure that the needed
care was available. See Farmer, 511 U.S. at 837; see also Gordon, 937 F.3d at 357; DePaola v.
Clarke, 884 F.3d 481, 486 (4th Cir. 2018); King, 825 F.3d at 219. As the Heyer Court put it,
“The plaintiff must show that he had serious medical needs, which is an objective inquiry, and
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that the defendant acted with deliberate indifference to those needs, which is a subjective
inquiry.” Heyer, 849 F.3d at 209-10.
The subjective component of the standard requires a determination as to whether the
defendant acted with reckless disregard in the face of a serious medical condition, i.e., with “a
sufficiently culpable state of mind.” Wilson, 501 U.S. at 298; see Farmer, 511 U.S. at 839-40;
Scinto, 841 F.3d at 225. As the Farmer Court explained, 511 U.S. at 837, reckless disregard
occurs when a defendant “knows of and disregards an excessive risk to inmate health or safety;
the [defendant] must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists and he must also draw the inference.” Put another way, “it
is not enough that the defendant should have known of a risk; he or she must have had actual
subjective knowledge of both the inmate’s serious medical condition and the excessive risk
posed by the official’s action or inaction.” Lightsey, 775 F.3d at 178 (emphasis in Lightsey); see
Farmer, 511 U.S. at 839-40; Anderson v. Kingsley, 877 F.3d 539, 544 (4th Cir. 2017).
“Actual knowledge or awareness on the part of the alleged inflicter . . . becomes essential
to proof of deliberate indifference ‘because prison officials who lacked knowledge of a risk
cannot be said to have inflicted punishment.’” Brice v. Va. Beach Corr. Center, 58 F.3d 101,
105 (4th Cir. 1995) (quoting Farmer, 511 U.S. at 844). The Fourth Circuit has said: “True
subjective recklessness requires knowledge both of the general risk, and also that the conduct is
inappropriate in light of that risk.” Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997); see
Young v. City of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001) (“Deliberate indifference
requires a showing that the defendants actually knew of and disregarded a substantial risk of
serious injury to the detainee or that they actually knew of and ignored a detainee’s serious need
for medical care.”).
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A plaintiff can meet the subjective knowledge requirement through direct evidence of a
prison official’s actual knowledge. And, the plaintiff can rely on circumstantial evidence tending
to establish such knowledge, including evidence “that a prison official knew of a substantial risk
from the very fact that the risk was obvious.” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir.
2015) (quoting Farmer, 511 U.S. at 842); see also Gordon, 937 F.3d at 357; Scinto, 841 F.3d at
Generally, “[a]n actionable deliberate-indifference claim does not require proof that the
plaintiff suffered an actual injury. Instead, it is enough that the defendant’s actions exposed the
plaintiff to a ‘substantial risk of serious harm.’” Heyer, 849 F.3d at 210 (quoting Farmer, 511
U.S. at 837) (emphasis added in Heyer); see Thompson, 878 F.3d at 97-98. But, in a case
involving a claim of deliberate indifference to a serious medical need, the inmate must show a
“significant injury.” Danser v. Stansberry, 772 F.3d 340, 346 n.8 (4th Cir. 2014); see De’lonta v.
Johnson, 708 F.3d 520, 525 (4th Cir. 2013).6
The Supreme Court recognized in Farmer that “prison officials who actually knew of a
substantial risk to inmate health or safety may be found free from liability if they responded
reasonably to the risk, even if the harm ultimately was not averted.” 511 U.S. at 844; accord
Brown, 240 F.3d at 390-91. The Constitution requires prison officials to ensure “reasonable
safety,” a standard that acknowledges prison officials’ “unenviable task of keeping [sometimes]
dangerous [people] in safe custody under humane conditions[.]” Farmer, 511 U.S. at 845
(citations and quotation marks omitted). Accordingly, “prison officials who act reasonably
cannot be found liable” under the deliberate indifference standard. Id.; see also Short v. Smoot,
6 The Supreme Court has rejected the “significant injury” requirement in regard to an
excessive force claim under the Eighth Amendment. Wilkins v. Gaddy, 559 U.S. 34, 37-38
(2010) (per curiam); see Danser, 772 F.3d at 346 n.8 (distinguishing deliberate indifference
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436 F.3d 422, 428 (4th Cir. 2006) (finding that an officer who responds reasonably to a danger
facing an inmate is not liable under the deliberate indifference standard, even when further
precautions could have been taken but were not); Brown, 240 F.3d at 390-91.
Notably, deliberate indifference “is a higher standard for culpability than mere negligence
or even civil recklessness” and, “as a consequence, many acts or omissions that would constitute
medical malpractice will not rise to the level of deliberate indifference.” Lightsey, 775 F.3d at
178; see also Scinto, 841 F.3d at 225; Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975). In
Estelle, 429 U.S. at 106, the Supreme Court said: “[A] complaint that a physician has been
negligent in diagnosing or treating a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner.”
What the Court said in Grayson v. Peed, 195 F.3d 692, 695-96 (4th Cir. 1999), cert.
denied, 529 U.S. 1067 (2000), is also pertinent: “Deliberate indifference is a very high
standard—a showing of mere negligence will not meet it . . . [T]he Constitution is designed to
deal with deprivations of rights, not errors in judgments, even though such errors may have
unfortunate consequences . . . .” See also Young, 238 F.3d at 576 (stating that a Fourteenth
Amendment deliberate inference claim requires more than a showing of “mere negligence”);
Johnson v. Quinones, 145 F.3d 164, 166 (4th Cir. 1998) (“[A]ny negligence or malpractice on
the part of . . . doctors in missing [a] diagnosis does not, by itself, support an inference of
deliberate indifference.”). Although the deliberate indifference standard “‘entails more than
mere negligence . . . it is satisfied by something less than acts or omissions for the very purpose
of causing harm or with knowledge that harm will result.’” King, 825 F.3d at 219 (quoting
Farmer, 511 U.S. at 835).
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Of course, if a risk is obvious, a prison official “cannot hide behind an excuse that he was
unaware of a risk.” Brice, 58 F.3d at 105. But, an inmate’s mere disagreement with medical
providers as to the proper course of treatment does not support a claim under the deliberate
indifference standard. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985); Wester v. Jones,
554 F.2d 1285 (4th Cir. 1977). Rather, a prisoner-plaintiff must show that the medical provider
failed to make a sincere and reasonable effort to care for the inmate’s medical problems. See
Startz v. Cullen, 468 F.2d 560, 561 (2d Cir. 1972); Smith v. Mathis, PJM-08-3302, 2012 WL
253438, at * 4 (D. Md. Jan. 26, 2012), aff’d, 475 F. App’x 860 (4th Cir. 2012); Lopez v. Green,
PJM-09-1942, 2012 WL 1999868, at * 2 (D. Md. June 3, 2012); Robinson v. W . Md. Health Sys.
Corp., DKC-10-3223, 2011 WL 2713462, at *4 (D. Md. July 8, 2011). And, the right to medical
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).
When viewing the evidence as a whole, and in the light most favorable to Aurel, no
evidence exists that the conduct alleged amounted to deliberate indifference by the named
medical providers. See Estelle, 429 U.S. at 105-06 (holding that an inadvertent failure to provide
adequate medical care does not amount to deliberate indifference). Plaintiff receives regularly
scheduled chronic care, is assessed by medical specialists, including for gastrointestinal and
neurological conditions, and receives regular lab work, CT scans, and other diagnostic testing.
Indeed, the medical records reflect that plaintiff has received extensive medical care.
To the extent that Aurel alleges that defendants did not provide medication or treatment,
Aurel fails to present an Eighth Amendment claim. At most, Aurel has alleged limited
circumstances when he has not received medications. As to the additional pain medication Aurel
Case 1:19-cv-00185-ELH Document 49 Filed 09/10/20 Page 37 of 38
has requested, Tylenol #3 and Baclofen, defendants relied on medical judgment that these
medications were not warranted, in part, because of Aurel’s history with medication
noncompliance with other prescribed medications for the same conditions. ECF 30-5, ¶¶ 8, 19,
20, 22(c); ECF 30-6, ¶ 20. “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) (citing Gittlemacker v. Prasse, 428 F.2d 1, 6
In sum, Aurel’s medical condition has been closely monitored by defendants.
Additionally, Aurel’s generalized allegations that defendants destroyed or ignored his sick call
slips do not alter the Court’s deliberate indifference analysis, as it is belied by extensive
documentation of the medical care received by Aurel.
Aurel’s request for injunctive relief is also denied insofar as all claims are being
dismissed. A preliminary injunction is an extraordinary and drastic remedy. See Munaf v.
Geren, 553 U.S. 674, 689-90 (2008). A party seeking a preliminary injunction bears the burden
of demonstrating: (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. Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. Federal Election
Comm’n, 575 F.3d 342, 346-47 (4th Cir. 2009). As 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. Group, 952 F.2d 802, 812 (4th Cir. 1991) (citation omitted). In the prison
context, courts should grant preliminary injunctive relief involving the management of
Case 1:19-cv-00185-ELH Document 49 Filed 09/10/20 Page 38 of 38
correctional institutions only under exceptional and compelling circumstances. See Taylor v.
Freeman, 34 F.3d 266, 269 (4th Cir. 1994).
As previously discussed, Aurel has failed to demonstrate the likelihood of success on the
merits and for this reason alone his request for injunctive relief fails. Moreover, Aurel has not
demonstrated that he is likely to suffer irreparable harm or that the balance of equities tips in his
favor. Thus, Aurel’s request for injunctive relief is denied.
For the foregoing reasons, the suit shall be dismissed as to defendants Vanmol, Fields,
the NBCI Nurses, Hallworth, and Beeman. The remaining claims are construed in the context of
summary judgment. And, I shall grant summary judgment in favor of Corizon, Getachew, and
Pierce. Aurel’s motion for a temporary restraining order is denied.
A separate Order follows.
Date: September 10, 2020
Ellen L. Hollander
United States District Judge
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