Redd v. Watts et al

Filing 21

MEMORANDUM. Signed by Judge Stephanie A. Gallagher on 8/1/2022. (jb5s, Deputy Clerk)(c/m-08-01-2022)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ORLANDO REDD, JR.,
Plaintiff,
v.

Civil Action No.: SAG-21-0455

DIRECTOR GAIL WATTS, et al.,
Defendants.

MEMORANDUM
Orlando Redd, Jr., self-represented, filed this civil rights action pursuant to 42 U.S.C. §
1983 against Gail Watts, the Director of Baltimore County Detention Center (“BCDC”),
PrimeCare Medical, Inc. and Dr. Zowie Barnes (“Medical Defendants”). ECF No. 1. Redd alleges
that defendants failed to provide him with adequate protection from COVID-19 and black mold at
BCDC. Id. at 3-4. He seeks payment for future medical conditions, institutional credit for every
day he has been incarcerated, and monetary damages. Id. at 5. Redd was housed at BCDC when
he filed this action, and has since been transferred to Western Correctional Institution.1
Watts and the Medical Defendants have each filed a motion to dismiss or, in the alternative,
for summary judgment. ECF Nos. 11, 15. Redd was given an opportunity to respond to each
motion and has failed to do so. ECF Nos. 13, 19. No hearing is required. See Local Rule 105.6
(D. Md. 2021).

See https://dpscs.maryland.gov/inmate/search.do?searchType=detail&id=668508766.
checked August 1, 2022.
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Last

For the reasons that follow, the Medical Defendants’ unopposed motion shall be granted.
Defendant Watts’s motion shall be denied without prejudice, based on the failure to provide
sufficient information for the court to make a determination.
Preliminary Motions
The Medical Defendants filed a motion to seal their motion to dismiss, or in the alternative
for summary judgment, and also the accompanying memorandum and exhibits. ECF No. 12.
Defendant Watts filed a motion to seal two medical record exhibits filed with the motion to
dismiss, or in the alternative, for summary judgment. ECF No. 18.
Local Rule 105.11 governs the sealing of all documents filed in the record and states in
relevant part that: “[a]ny motion seeking the sealing of pleadings, motions, exhibits or other
documents to be filed in the Court record shall include (a) proposed reasons supported by specific
factual representations to justify the sealing and (b) an explanation why alternatives to sealing
would not provide sufficient protection.” The rule balances the public’s general right to inspect
and copy judicial records and documents, see Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597
(1978), with competing interests that sometimes outweigh the public’s right, see In re Knight
Publ’g Co., 743 F.2d 231, 235 (4th Cir. 1984). The common-law presumptive right of access can
only be rebutted by showing that “countervailing interests heavily outweigh the public interest in
access.” Doe v. Pub. Citizen, 749 F.3d 246, 265- 66 (4th Cir. 2014) (quoting Rushford v. New
Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)). The right of access “may be restricted
only if closure is ‘necessitated by a compelling government interest’ and the denial of access is
‘narrowly tailored to serve that interest.’” Id. at 266 (quoting In re Wash. Post Co., 807 F.2d 383,
390 (4th Cir. 1986)). “[S]ensitive medical or personal identification information may be sealed,”
although not where “the scope of [the] request is too broad.” Rock v. McHugh, 819 F. Supp. 2d
456, 475 (D. Md. 2011).
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Defendant Watts’s request to seal two exhibits which are Redd’s medical records presents
a compelling reason and will be granted. The Medical Defendants’ request to seal Redd’s medical
records also presents a compelling reason and will be granted to that extent. However, the Medical
Defendants’ request to seal their motion to dismiss, or in the alternative for summary judgment,
accompanying memorandum of law, proposed orders, and affidavit of Dr. Zowie Barnes, does not
warrant sealing and will be denied. Redd has himself made reference to medical matters in his
complaint, and they are not sensitive in nature.
Defendant Watts’s Motion
Defendant Watts submitted a memorandum of law in support of her motion indicating
action taken at BCDC to address COVID-19. ECF Nos. 15, 15-1. The memorandum refers to an
affidavit by Defendant Watts, identified as Exhibit CC. ECF No. 15-1 at 3. This affidavit was not
filed with the court. In addition, the memorandum identifies exhibits by letter, but the submitted
exhibits do not contain any letter identifier. ECF No. 15-2 through 15-29. In its present form, the
court cannot review the submission as it does not include the referenced affidavit and incorrectly
identifies its exhibits.
Defendant Watts’s motion is denied without prejudice to the right to file an additional
motion with the court if she wishes to move to dismiss or for summary judgment on this claim.
Any such motion must include all referenced exhibits, properly indexed as required by Local Rule
105.5, and properly referenced in a memorandum of law, to allow for identification of each exhibit.
The Court will address the Medical Defendants’ substantive motion below.
Factual Background
Redd filed a complaint dated January 22, 2021. He claims that Defendants failed to take
adequate COVID-19 precautions, and also failed to address black mold present at BCDC. ECF
No. 1 at 3-4. He states that on December 22, 2020, a “quarantine notice” was put on an inmate’s
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cell door in his segregated housing unit. Id. at 3. On December 24, 2020, this same inmate was
let out for recreation, and interacted with Redd and other inmates. Id. The inmate remained housed
in the unit until December 29, 2020, at which time he was removed and isolated from others. Id.
Redd believes he was personally put at risk of contracting COVID-19 due to these events. Id.
Redd also states that inmates did not receive face masks until September 2020, although
face masks were provided to correctional officers in March 2020. Id. In addition, inmates
transported from intake to housing units, putting him further at risk of infection. Id. As of January
4, 2021, Redd had been in restricted housing for 16 days and his unit was still on quarantine after
12 days. Id. at 4. He describes improper cleaning of the bathing area, control center door and
bannisters. Id. Further, there is black mold all over bathing area walls and he is not able to access
cleaning supplies. Id. Although the conditions have “taken a toll” on his breathing, he was denied
“breathing treatments” by correctional staff and PrimeCare because he does not have health
problems for breathing “in the data base.” Id. These poor living conditions were not addressed
until an informal complaint was made. Id. Redd feels as though his health has been “jeopardized
and taken for granted.” Id.
The Medical Defendants submitted the affidavit of Defendant Dr. Zowie Barnes who has
been employed by PrimeCare Medical, Inc. at all relevant times identified in Redd’s complaint.
ECF No. 11 at 98. Redd’s medical records have also been provided for the time period from
November 21, 2017 through July 9, 2021. ECF No. 11 at 21-96. Dr. Barnes states that she was
involved with treatment of Redd, but was not his exclusive medical provider. Id. at 99. Redd did
not seek treatment for a breathing problem “of any kind” when he was under her care. Id. Further,
she has “never prevented” Redd from accessing health services or failed to treat his presented
symptoms. Id.

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Redd’s medical records contain minimal information pertaining to COVID-19 and no
reference to black mold. Id. at 21-96. On January 8, 2021, Redd was offered and refused the
COVID-19 vaccination. Id. at 62. On June 20, 2021, Redd signed a COVID-19 Pandemic Patient
disclosure form. Id. at 29. This form states that Redd has not been in contact with someone who
has tested positive for COVID-19 and he has not experienced shortness of breath or trouble
breathing. Id. On July 7, 2021, Redd tested positive for COVID-19. Id. at 34. His medical record
does not continue past this date. The record up to July 7, 2021 does not indicate that Redd
requested breathing treatments at any time. Id. at 22-96.
Standard of Review
To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), the factual allegations of a complaint “must be enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). The court may “consider documents attached to the complaint, see Fed.R.Civ.P. 10(c),
as well as those attached to the motion to dismiss, so long as they are integral to the complaint and
authentic[.]” Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.
2007) (citation omitted). “To satisfy this standard, a plaintiff need not ‘forecast’ evidence sufficient
to prove the elements of the claim. However, the complaint must allege sufficient facts to establish
those elements.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted).
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.
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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)).
The Medical Defendants’ 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). 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, 43637 (D. Md. 2011). Conversion of a motion to dismiss to one for summary judgment under Rule
12(d) is permissible where a plaintiff has “actual notice” that the motion may be disposed of as
one for summary judgment. See Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253,
260-61 (4th Cir. 1998). When the movant expressly captions its motion “in the alternative” as one
for summary judgment and submits matters outside the pleadings for a court’s consideration, the
parties are deemed to be on notice that conversion under Rule 12(d) may occur; a court “does not
have an obligation to notify parties of the obvious.” Laughlin, 149 F.3d at 261. Because Defendant
filed its motion as a motion to dismiss, or in the alternative, for summary judgment, Redd was on
notice that the Court could treat the motion as one for summary judgment and rule on that basis.
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Discussion
Medical Defendants PrimeCare Medical, Inc. and Dr. Zowie Barnes assert that they are
entitled to summary judgment because 1) Redd fails to state a claim against Dr. Barnes; 2) Redd
fails to adequately allege that any policy, practice, or custom led to a violation of his rights; 3) if
the court were to find an official practice or custom, Redd has failed to state a claim for relief; 4)
there is no genuine dispute of material fact; and 5) Redd’s common law claims fail because he has
not complied with the Maryland Health Care Malpractice Claims Act, Md. Code (2020 Repl. Vol),
§ 3-2A-01 et seq. of the Courts and Judicial Proceedings Article. ECF No. 11 at 6-16.
Medical Constitutional Claim
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. See,
e.g., Filarsky v. Delia, 566 U.S. 377 (2012); see also Graves v. Loi, 930 F.3d 307, 318-19 (4th Cir.
2019); Owens v. Balt. City State’s Attorney’s Office, 767 F.3d 379 (4th Cir. 2014), cert. denied,
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)). 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).
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 Crosby v. City of Gastonia, 635 F.3d 634, 639 (4th Cir. 2011), cert. denied, 565 U.S.
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823 (2011); Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009); Jenkins
v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).
Plaintiff was a pretrial detainee at the relevant time. He asserts that he received inadequate
medical care. ECF No. 1. A pretrial detainee’s claim of cruel and unusual punishment arises under
the Fourteenth Amendment, but courts “have traditionally looked to Eighth Amendment
precedents in considering a Fourteenth Amendment claim of deliberate indifference to serious
medical needs.” Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021).
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). “Scrutiny under the Eighth
Amendment is not limited to those punishments authorized by statute and imposed by a criminal
judgment.” DeLonta 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).
For a plaintiff to prevail in an Eighth Amendment suit as to 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; Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014);
Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). 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

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assistance. See Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 303; Hixson v. Moran, 1 F. 4th 297,
302 (4th Cir. 2021); Thompson v. Virginia, 878 F.3d 89, 97 (4th Cir. 2017).
The Due Process Clause of the Fourteenth Amendment protects the rights of pretrial
detainees to receive adequate medical care. Hill v. Nicodemus, 979 F.2d 987, 990-91 (4th Cir.
1992); see also Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001) (stating, inter alia, that if the
decedent “was a pretrial detainee rather than a convicted prisoner, then the Due Process Clause of
the Fourteenth Amendment, rather than the Eighth Amendment, mandates the provision of medical
care to detainees who require it”) (emphasis in Brown) (internal quotation marks omitted; citation
omitted) (citing, inter alia, City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); and Bell
v. Wolfish, 441 U.S. 520, 535 n.16 (1979)).
Notably, pretrial detainees “retain at least those constitutional rights [held] by convicted
prisoners.” Bell v. Wolfish, 441 U.S. 520, 545 (1979); see also Patten v. Nichols, 274 F.3d 829,
834 (4th Cir. 2001). And, a prison official violates a detainee’s Fourteenth Amendment rights
when the official is deliberately indifferent to the detainee’s serious medical needs. See Young v.
City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001) (“[D]eliberate indifference to the serious
medical needs of a pretrial detainee violates the due process clause.”); see also Hill, 979 F.2d at
991 (adopting the standard of “deliberate indifference” with respect to the level of care owed to a
pretrial detainee under the Fourteenth Amendment); Gordon v. Kidd, 971 F.2d 1087, 1094 (4th
Cir. 1992) (“Pretrial detainees, like inmates under active sentence, are entitled to medical attention,
and prison officials violate detainees’ rights to due process when they are deliberately indifferent
to serious medical needs.”) (emphasis added).
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an
inmate” violates the Eighth Amendment and the Fourteenth Amendment. Farmer, 511 U.S. at
828; see Hill, 979 F.2d at 991. Therefore, a constitutional claim of denial of adequate medical
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care, whether lodged under the Eighth Amendment or the Fourteenth Amendment, requires a court
to analyze the same issue: whether there was deliberate indifference to a serious medical need.
See Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir. 1990) (“The Fourteenth Amendment right of
pretrial detainees, like the Eighth Amendment right of convicted prisoners, requires that
government officials not be deliberately indifferent to any serious medical needs of the detainee.”)
(citing Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988)).
Deliberate indifference to a serious medical need requires proof that, objectively, the
prisoner plaintiff was suffering from a serious medical need and that, subjectively, the prison staff
was aware of the need for medical attention but failed to either provide it or ensure it was available.
See Farmer, 511 U.S. at 834-7 (1994); see also Heyer v. U.S. Bureau of Prisons, 849 F.3d 202,
209-10 (4th Cir. 2017); King, 825 F.3d at 218; Iko v. Shreve, 535 F.3d at 241 (4th Cir. 2008).
Objectively, the medical condition at issue must be serious. See Hudson v. McMillian, 503 U.S.
1, 9 (1992) (there is no expectation that prisoners will be provided with unqualified access to health
care); Jackson, 775 F.3d at 178. “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.’” Heyer, 849 F.3d at 210 (quoting Iko, 535 F.3d
at 241); see also Scinto, 841 F.3d at 228 (failure to provide diabetic inmate with insulin where
physician acknowledged it was required is evidence of objectively serious medical need). Proof of
an objectively serious medical condition, however, does not end the inquiry.
After a serious medical need is established, a successful claim requires proof that the
defendants were subjectively reckless in treating or failing to treat the serious medical condition.
See Farmer, 511 U.S. at 839-40. “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
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Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995) (quoting Farmer, 511 U.S. at 844). The subjective
knowledge requirement can be met through direct evidence of actual knowledge or through
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.” Scinto, 841 F.3d
at 226 (quoting Farmer, 511 U.S. at 842).
Dr. Barnes
Redd names Dr. Barnes as a Defendant, but provides no allegations indicating any action
or inaction taken on the part of Dr. Barnes. Instead Redd complains generally that he requested
but was denied “breathing treatments” by PrimeCare because he does not have health problems
for breathing “in the data base.” ECF No. 1 at 3-4.
The medical records do not show that there were any requests made by Redd to Dr. Barnes,
or that Dr. Barnes denied medical care to Redd, regarding breathing difficulties. In fact, the record
does not show that Redd complained of breathing difficulties, or requested medical care related to
breathing difficulties, when speaking to any medical provider. Instead the record notes that Redd
denied shortness of breath or trouble breathing on a COVID-19 Pandemic Patient disclosure form
dated June 20, 2021. ECF No. 11 at 29. On July 7, 2021, Redd tested positive for COVID-19, but
his medical record does not continue past this date. Id. at 34. Redd did not respond to the Medical
Defendants’ motion or provide any further allegations regarding ongoing medical treatment issues
after he filed his January 22, 2021, Complaint.
There is no indication that Redd suffers from a serious medical need pertaining to breathing
issues. Further, there is no evidence before this Court that would reasonably support a conclusion
that Dr. Barnes denied or interfered with needed medical care for Redd. Accordingly, the Court
finds that there is no genuine issue of material fact in dispute and Dr. Barnes is entitled to summary
judgment in her favor on the 14th Amendment medical care claim.
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PrimeCare Medical
Similarly, because there is no indication that Redd suffers from a serious medical need
pertaining to breathing issues, PrimeCare Medical also cannot be held to be deliberately indifferent
to that need. Accordingly, the Court finds that there is no genuine issue of material fact in dispute
and PrimeCare Medical is entitled to summary judgment on the 14th Amendment claim.2
Medical Negligence Claim
To the extent that Redd intended to raise a state law medical malpractice claim based on
this court’s supplemental jurisdiction under 28 U.S.C. § 1367(a), the Medical Defendants contend
that the malpractice claim is subject to dismissal because Butler failed to comply with Maryland
Health Care Malpractice Claims Act, Md. Code (2020 Repl. Vol), § 3-2A-01 et seq. of the Courts
and Judicial Proceedings Article.
“When, as here, the federal claim is dismissed early in the case, the federal courts are
inclined to dismiss the state law claims without prejudice rather than retain supplemental
jurisdiction.” Carnegie Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (citing United Mine
Workers of America v. Gibbs, 383 U.S. 715, 726-727 (1966). To the extent Redd raises a medical
malpractice claim under Maryland law, it will be dismissed, without prejudice.
Conclusion
For the foregoing reasons, the Medical Defendants’ Motion, construed as a motion for
summary judgment, is granted as to the constitutional claim. State law claims against the Medical
Defendants are dismissed without prejudice.

Defendant Watts’s motion is denied without

2

Because this Court finds that the Medical Defendants are entitled to summary judgment based
on Redd’s failure to allege deliberate indifference to a serious medical need, this Court will not
address their other defenses.
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prejudice. Defendant Watts’s Motion to Seal is granted. The Medical Defendants’ Motion to Seal
is granted in part. A separate Order follows.
August 1, 2022
Date

/s/
Stephanie A. Gallagher
United States District Judge

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