Myers v. Yes Care Corp. et al
Filing
50
MEMORANDUM OPINION Signed by Judge George Levi Russell, III on 2/7/2024. (c/m 2/7/2024 ah8s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JONATHAN RICHARD MYERS,
Plaintiff,
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v.
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Civil Action No. GLR-22-3102
YESCARE CORP., et al.
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Defendants.
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MEMORANDUM OPINION
THIS MATTER is before the Court on Defendants Robert L. Green, Correctional
Officer II Roman Yoder, and Correctional Officer II Andrew Wagner’s (collectively the
“State Defendants”) Motion to Dismiss (ECF No. 34), 1 and Defendants Samuel Rahman
and YesCare Corp.’s (collectively the “Medical Defendants”) Motion for Summary
Judgment (ECF No. 36). The Motions are ripe for review, and no hearing is necessary. See
Local Rule 105.6 (D.Md. 2023). For the reasons outlined below, the Court will grant
Defendants’ Motions.
I.
A.
BACKGROUND
Myers’ Allegations
Plaintiff Jonathan Richard Myers is currently an inmate at Western Correctional
Institution (“WCI”) in Cumberland, Maryland. (Compl. at 1, ECF No. 1). 2 Myers brings
The Clerk shall be directed to amend the docket to reflect the State Defendants’
full and correct names.
2
Citations refer to the pagination assigned by the Court’s Case Management and
Electronic Case File (CM/ECF) system.
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this action against COII Yoder, COII Wagner, and Secretary of the Department of Public
Safety and Correctional Services (“DPSCS”) Robert Green as well as Samuel Rahman and
YesCare Corp., who provide medical care to DPSCS inmates. (Id.). Myers presents two
distinct claims, each described below.
First, Myers claims that on October 27, 2020, he was seen by NP Holly Hoover
because he had a piece of steel lodged in his arm from an incident while he was working
at the maintenance department at Maryland Correctional Training Center. (Compl. at 2,
ECF No. 1). He states that following an x-ray on November 5, 2020, he was scheduled for
a surgical consultation. (Id.). On March 15, 2021, following his consultation, Myers was
scheduled for surgery with Dr. Michael Stasko three weeks later. (Id.). However, Myers
asserts that at the time of filing the Complaint, November 30, 2022, he had still not received
treatment. (Id.).
Second, Myers asserts that on March 7, 2022, while housed at North Branch
Correctional Institution (“NBCI”), prison officials woke him up around 8:00 p.m. with no
explanation and handcuffed him. (Compl. at 5). He states that he heard someone call his
name. (Id.). Believing it was the Housing Unit Sergeant calling him for a strip search, he
stood up and walked about ten steps before COII Wagner jumped on his back, placed him
in a choke hold, and told him to get down on the ground. (Id.). Myers tried to yell while
Wagner’s arm tightened around his throat. (Id.). He also tried to shake Wagner off his back.
(Id.). Myers states COII Yoder “chopped block[ed]” him in the back of his knees, causing
him to fall. (Id.). While on his back, Myers states that Wagner grabbed him by the throat
and punched him in the face while Yoder held his legs. (Id.). Myers asserts that he was not
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evaluated by medical staff until the following day. (Id.). Myers showed the nurse his foot,
which was black, but he was given only an ace bandage and sent back to his cell. (Id. at 5–
6). Since then, he has seen a nurse five times and received two x-rays but has not received
a walking boot or consultation with a specialist. (Id. at 6). He states that his foot has healed
improperly, causing him to drag his foot. (Id.).
In his Supplement to the Complaint, Myers alleges that as to both claims, his
medical issues were addressed only when a third party, such as a social worker or an
Internal Investigation Division (“I.I.D.”) Detective, contacted the medical department
concerning his injuries. (Suppl. Compl. at 1, ECF No. 7). Myers claims that Rahman, the
Chief Medical Facilitator, is responsible, along with YesCare Corp., for providing quality
medical care at the relevant facilities. (Id. at 2).
B.
Medical Defendants’ Response
1.
Declaration of Sam Rahman
Defendant Sam Rahman attests that since May 4, 2022, he has been employed by
YesCare Corp. as the Director of Operations for the Cumberland Region and served in that
same position for Corizon Health, Inc. since January 1, 2019. (Rahman Decl. ¶ 2, ECF No.
36-2). Rahman denies being personally aware that either Corizon or YesCare maintains a
custom or policy of denying medical care due to cost or any other reason. (Id. ¶ 5). He
further denies that he or YesCare has a policy or custom of delaying their response to
medical needs until the issue is raised by a third party. (Id.).
Rahman avers that his role is purely administrative and he is not a medical provider.
(Id. ¶ 6). Thus, he asserts that he does not dictate medical care in any way. (Id.). Medical
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decisions are determined by the onsite medical providers and Utilization Management
(“UM”). (Id.). He explains that onsite providers submit requests “for certain diagnostic
tests or offsite appointments with specialists, and those requests are reviewed by UM, who
determine whether medical necessity has been demonstrated for the test or appointment.
(Id.). UM may approve a request, request more information, or return an Alternative
Treatment Plan (‘ATP’) suggesting a different course of action. (Id.). The onsite providers
can accept or appeal the ATPs.” (Id.). Rahman is not involved in this process. (Id.).
Rahman also attests that he is not responsible for scheduling or staffing; rather, the
Regional Medical Director oversees the providers, and the Regional Director of Nursing
oversees the nursing staff. (Id. ¶ 7). Health Services Administrators manage medical
records, scheduling, and grievances, among other things. (Id.). Rahman attests that all of
these positions report to him administratively and he provides “support to our site leaders,
manage[s] finance/budgets, client needs, and implement[s] operation policies and
procedure . . .” (Id.).
Finally, Rahman avers that he does not remember receiving any letters from Myers.
(Id. ¶ 8). When mail is received in the medical department, the Health Services
Administrators review and distribute it. (Id.). Rahman attests that upon receipt of letters
addressed to him, he reviews them and routes them back to the Regional Director of
Nursing or a Health Services Administrator to take the appropriate action. (Id.).
2.
Medical Records
On October 27, 2020, while incarcerated at NBCI, Myers saw NP Holly Hoover for
a sick call regarding a metal splinter in his right elbow. (Medical Rs. Part 3 at 5, ECF No.
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36-5). He reported that it had entered his elbow years prior and often causes discomfort
when moving. (Id.). Hoover assessed a “foreign body granuloma” and ordered an x-ray.
(Id. at 4–5).
On November 5, 2020, an x-ray was taken of Myers’ right elbow; it showed “an
irregular triangular opacity in the medial soft tissues overlying the proximal third of the
olecranon.” (Medical Rs. Part 4 at 9, ECF No. 36-6). Hoover requested a consultation with
a general surgeon, which was approved. (Medical Rs. Part 3 at 1–3; Medical Rs. Part 6 at
6, ECF No. 36-8). Myers was scheduled for an appointment with Dr. Stasko on March 15,
2021. (Medical Rs. Part 6 at 6).
Dr. Stasko found that Myers had mild tenderness in the right elbow region but no
palpable mass lesion, and he diagnosed Myers with a superficial foreign body in his right
upper arm. (Medical Rs. Part 4 at 10). He noted that local exploration using fluoroscopic
guidance was required and recommended that Myers come back in three weeks for the
surgery. (Id.).
During a chronic care visit on November 16, 2021, Myers inquired about any follow
up from his appointment with Dr. Stasko and LPN Lori Keister noted that the off-site
scheduler would be contacted for more information. (Medical Rs. Part 2 at 16, ECF No.
36-4). Myers saw PA Adane Negussie and RN Jessica Coffman on March 8, 2022, for a
possible foot injury. (Id. at 8, 10). Examination showed Myers’ left big toe was swollen,
tender and warm to the touch, and discolored. (Id.). Bruising and swelling extended from
the left big toe “down the medial left foot.” (Id. at 10). Myers was given 600 mg ibuprofen
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and directed to continuing taking the ibuprofen twice a day and use an ice pack as needed.
(Id.). Negussie also ordered an x-ray of Myers’ foot. (Id. at 7).
Medical Defendants submit two “Release of Responsibility” waivers asserting that
Myers refused medical care on March 7, 2022, immediately following the use of force
incident, and refused to go to his x-ray appointment on March 11, 2022. (Medical Rs. Part
2 at 13; Medical Rs. Part 4 at 31). However, the documents are either blank or state that
Myers refused to sign but do not include the signature of a second witness as required by
the form. (Medical Rs. Part 2 at 13). 3 Myers returned to see RN Coffman on June 29, 2022,
about his injury. (Id. at 4–6). He reported that no one had come to his door to take him
when the last x-ray was ordered. (Id. at 6). He complained that the pain medication was not
helping and that due to the delay, his toe was healing sideways causing him to limp and
experience additional pain. (Id. at 4). Myers also reported that he had not heard anything
about the splinter in his right elbow since his consult in 2021. (Id.). RN Coffman referred
him to a provider and submitted new orders for an x-ray. (Id. at 5).
On July 13, 2022, an x-ray was taken of Myers’ left foot. (Medical Rs. Part 4 at 36).
Findings showed “an oblique lucency across the base of the first proximal phalanx medially
extending to the MTP joint” and a “[l]oose body at the first DIP joint suggestive of prior
injury.” (Id.). The radiologist concluded that there was an “age indeterminate avulsion at
the base of the first proximal phalanx.” (Id.).
The Release of Responsibility clearly states: “A second witness is required if
patient refuses to sign release.” (Medical Rs. Part 4 at 31, ECF No. 36-6). As the release
was not properly executed, the Court will not consider it as evidence of Myers’ refusal to
get x-rays.
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Myers saw RN Coffman for another sick call on August 17, 2022, complaining that
he had not been seen for either the foreign body in his right arm or his foot injury. (Medical
Rs. Part 1 at 32–33, ECF No. 36-3). Coffman noted that Myers had a severely limited range
of motion in his toes which worsened by use and caused difficulty with daily living
activities. (Id.). Myers was referred to a provider and Coffman emailed the scheduler
regarding the delay. (Id. at 32). Myers saw RN Coffman again on September 12, 2022,
complaining that he had not been seen by a provider. (Id. at 30–31). Coffman noted that
referrals had been placed June 29, July 7, and August 17, 2022. (Id. at 30). She placed a
fourth referral that same day and notified the scheduler of the fourth request. (Id.). PA
Negussie saw Myers later that same day. (Id. at 27–29). Myers reported that he could not
move his first three toes and was therefore having difficulty walking; his pain was a 9 on a
10-point scale. (Id. at 27). Negussie found no swelling or erythema, but she noted an
“exaggerated reaction” to pain when palpated. (Id.). Myers also complained about the
foreign body in his arm, which was still not palpable on exam. (Id.). Negussie prescribed
Myers 500 mg Naproxen. (Id. at 29).
Myers received another x-ray of his right elbow on September 14, 2022, which again
showed a metallic foreign body in the soft tissue. (Medical Rs. Part 5, ECF No. 36-7).
Myers was transferred from NBCI to WCI on September 21, 2022. (Medical Rs. Part 1). 4
On November 4, 2022, Myers saw Dr. Masoud Djahanmir for a provider visit. (Id. at 11–
Medical Defendants state that Myers refused his next sick call appointment on
October 8, 2022, but again submit a Release of Responsibility which is unsigned by Myers
and does not have a second witness signature and thus will not be considered by the Court.
(Medical Rs. Part 5 at 8).
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14). Dr. Djahanmir reviewed Myers’ records and scheduled him with podiatrist Dr.
Michael Berger. (Id.). He also ordered Tylenol for Myers to take as needed. (Id.).
Myers saw Dr. Berger on November 17, 2022, for an evaluation of his left toe pain.
(Medical Rs. Part 1 at 8–10). Myers reported continued pain from the fracture to his
proximal phalanx of his left big toe. (Id. at 8). Dr. Berger’s exam revealed palpable pedal
pulses with brisk capillary refill, his skin was warm/dry and well perfused. (Id. at 9). He
also noted that there was no deformity or sign of trauma. (Id.). Dr. Berger ordered another
x-ray and advised Myers that if a fragment was present, he may consider surgical removal.
(Id.). Finally, Dr. Berger ordered a surgical shoe to assist Myers with walking, and Myers
received it on November 21, 2022. (Id.; Medical Rs. Part 5 at 11–12).
The x-ray of Myers’ left foot on April 25, 2023, showed no evidence of a fracture,
soft tissue fracture, or foreign body. (Medical Rs. Part 6 at 26). On May 5, 2023, Myers
saw RN Kimberly Fazenbaker for a sick call regarding pain in his left foot. (Id. at 18–20).
He reported that he was waiting for a follow-up with Dr. Berger and that neither the surgical
shoe nor medication were reducing his pain. (Id. at 19). Myers also complained that nothing
had been done regarding the metallic foreign body in his arm, which still caused pain with
specific movements but did not limit his range of motion. (Id.). Fazenbaker noted that
Myers had pain in his toes with palpitation and movement, but his toes were not swollen.
(Id.). Myers was referred to Dr. Berger. (Id. at 20). He refused the offered Motrin or
Tylenol. (Id.).
Myers saw Regional Medical Director Dr. Susan Arnoult for a provider visit on June
14, 2023. (Medical Rs. Part 8 at 15–16, ECF No. 36-9). Dr. Arnoult noted that the initial
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x-rays showed an avulsion fracture, but that Myers’ most recent x-ray was normal. (Id. at
15). Myers walked with a limp and upon examination, Dr. Arnoult concluded that Myers
suffered from an “internal disruption and non-healing of a ligament in the toe.” (Id. at 16).
She further noted that while an MRI would be ideal, because of the metallic object in his
arm, she instead requested a CT scan of Myers’ foot. (Id.). Myers also saw NP Janette
Clark for a provider visit on June 16, 2023. (Id. at 10–11). After examination, Clark also
requested a podiatry follow-up as well as a general surgery consult for the foreign body in
Myers’ arm. (Id. at 10). On June 28, 2023, the Acting Statewide UMMD discussed the CT
scan request and directed that Myers first be seen by Dr. Berger. (Id. at 19). The Acting
Statewide UMMD also upheld their decision that the foreign body in Myers’ arm did not
require surgical intervention as a medical necessity and that it would be considered an
elective procedure. (Id. at 24).
Dr. Berger saw Myers for a provider visit on June 29, 2023. (Id. at 18). He reviewed
the x-rays and noted no evidence of an acute fracture, dislocation, or ligament injury. (Id.).
Dr. Berger concluded that Myers had “chronic arthritic change to left great toe IP joint with
mild bunion deformity present . . .” (Id.). In response, UM returned an ATP finding that
there was no medical necessity for the CT requested by Dr. Arnoult because there was no
evidence of a fracture or dislocation. (Id. at 17). Dr. Arnoult agreed to the ATP. (Id.).
C.
Procedural History
The Court received Myers’ Complaint on November 30, 2022, against Defendants
COII Yoder, COII Wagner, DPSCS Secretary Robert Green, Samuel Rahman, Corizon
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Health, and YesCare Corp. 5 The Complaint alleges that Defendants failed to provide
adequate medical care and used excessive force against him. Myers was granted leave to
supplement the Complaint to identify any individuals responsible for failing to provide him
adequate medical care and to state any facts supporting claims against them following the
provision of his medical records for review. (ECF No. 4). Myers filed a Supplement to the
Complaint on February 9, 2023. (ECF No. 7). Myers stated that he could not identify any
particular medical providers responsible and instead alleges that it was the “entire medical
system” because his medical needs were only addressed when a third party raised them
with the medical providers. (Suppl. Compl. at 1). The Court construed his allegations
against YesCare Corp. and Samuel Rahman as alleging that they have a policy or custom
of not responding to medical needs unless the issues are raised by third parties. (Id. at 1–
2). Myers seeks immediate medical attention to remove the steel from his arm and to reset
his broken foot as well as monetary damages. (Compl. at 3).
On June 20, 2023, the State Defendants filed a Motion to Dismiss. (ECF No. 34).
Myers responded in opposition on November 27, 2023, (ECF No. 44), and the State
Defendants replied on December 12, 2023, (ECF No. 48). On July 19, 2023, the Medical
Defendants filed a Motion for Summary Judgment. (ECF No. 36). Myers responded on
August 18, 2023, (ECF No. 40), and the Medical Defendants replied on September 1, 2023,
(ECF No. 41).
A stay was entered as to Defendant Corizon Health, Inc. on March 8, 2023,
pursuant to ongoing bankruptcy proceedings. (ECF No. 9). Following disposition of the
claims against all other Defendants, the case as to Corizon will remain stayed but will be
administratively closed.
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II.
A.
DISCUSSION
Standard of Review
1.
Motion to Dismiss
The purpose of a Rule 12(b)(6) motion is to “test[] the sufficiency of a complaint,”
not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City
of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A complaint fails to state a claim if it
does not contain “a short and plain statement of the claim showing that the pleader is
entitled to relief,” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief that is plausible
on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though the plaintiff is
not required to forecast evidence to prove the elements of the claim, the complaint must
allege sufficient facts to establish each element. Goss v. Bank of Am., N.A., 917 F.Supp.2d
445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)),
aff’d, 546 F.App’x 165 (4th Cir. 2013).
In considering a Rule 12(b)(6) motion, a court must examine the complaint as a
whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268
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(1994); Lambeth v. Bd. of Comm’rs, 407 F.3d 266, 268 (4th Cir. 2005) (citing Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)). Complaints drafted by self-represented plaintiffs are
held to a less stringent standard than those drafted by attorneys, and courts must liberally
construe these complaints. See Johnson v. Silver, 742 F.2d 823, 825 (4th Cir. 1984). But
the court need not accept unsupported or conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.
1979), or legal conclusions couched as factual allegations, Iqbal, 556 U.S. at 678.
2.
Summary Judgment
In reviewing a motion for summary judgment, the Court views the facts in a light
most favorable to the nonmovant, drawing all justifiable inferences in that party’s
favor. Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S. 372,
380 (2007)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). Summary judgment is proper when the
movant demonstrates, through “particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations . . . admissions, interrogatory answers, or other materials,” that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a), (c)(1)(A). Significantly, a party must be able to present the
materials it cites in “a form that would be admissible in evidence,” Fed.R.Civ.P. 56(c)(2),
and supporting affidavits and declarations “must be made on personal knowledge” and “set
out facts that would be admissible in evidence,” Fed.R.Civ.P. 56(c)(4).
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Once a motion for summary judgment is properly made and supported, the burden
shifts to the nonmovant to identify evidence showing there is genuine dispute of material
fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
The nonmovant cannot create a genuine dispute of material fact “through mere speculation
or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.
1985) (citation omitted).
A “material fact” is one that might affect the outcome of a party’s case. Anderson,
477 U.S. at 248; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459,
465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
Whether a fact is considered to be “material” is determined by the substantive law, and
“[o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. A
“genuine” dispute concerning a “material” fact arises when the evidence is sufficient to
allow a reasonable jury to return a verdict in the nonmoving party’s favor. Id. If the
nonmovant has failed to make a sufficient showing on an essential element of her case
where she has the burden of proof, “there can be ‘no genuine [dispute] as to any material
fact,’ since a complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986) (quoting Anderson, 477 U.S. at 247).
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B.
State Defendants’ Motion to Dismiss
The State Defendants argue that the Complaint should be dismissed because (1)
Myers has failed to state a claim of medical negligence, 6 (2) Myers has failed to exhaust
his administrative remedies as to his excessive force claim, and (3) Secretary Green is
entitled to immunity under the Eleventh Amendment. (Mem. Supp. Mot. Dismiss [“Mot.
Dismiss”] at 13–19, ECF No. 34-1). The Court will address each of these arguments below.
1.
Exhaustion
State Defendants assert that the excessive force claim against Defendants Wagner
and Yoder must be dismissed because Myers has failed to exhaust his administrative
remedies pursuant to the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e.
(Id. at 7). The PLRA provides in pertinent part that:
No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a).
For purposes of the PLRA, “the term ‘prisoner’ means any person incarcerated or
detained in any facility who is accused of, convicted of, sentenced for, or adjudicated
If Myers alleges any medical claim against the State Defendants, the Court
construes it as a claim of deliberate indifference under the Eighth Amendment. With a
generous construction of the Complaint, Myers has, at most, stated that following the
alleged excessive force incident, a medical provider did not evaluate him until the
following day. (Compl. at 5.) Even liberally construed, this is insufficient to state any
claim of negligence or deliberate indifference against the State Defendants and must be
dismissed.
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delinquent for, violations of criminal law or the terms and conditions of parole, probation,
pretrial release, or diversionary program.” 42 U.S.C. § 1997e(h). The phrase “prison
conditions” encompasses “all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002); see also Chase v. Peay, 286 F.Supp.2d
523, 527–28 (D.Md. 2003), aff’d, 98 F.App’x 253 (4th Cir. 2004).
Notably, administrative exhaustion under § 1997e(a) is not a jurisdictional
requirement and does not impose a heightened pleading standard on the prisoner. Rather,
the failure to exhaust administrative remedies is an affirmative defense to be pleaded and
proven by defendants. See Jones v. Bock, 549 U.S. 199, 216 (2007). A claim that has not
been exhausted may not be considered by this Court. See Jones, 549 U.S. at 220. In other
words, exhaustion is mandatory, and a court usually may not excuse an inmate’s failure to
exhaust. See Ross v. Blake, 136 S.Ct. 1850, 1856–57 (2016).
Ordinarily, an inmate must follow the required procedural steps in order to exhaust
his administrative remedies. Moore v. Bennette, 517 F.3d 717, 725, 729 (4th Cir. 2008);
see also Langford v. Couch, 50 F.Supp.2d 544, 548 (E.D.Va. 1999) (“The second PLRA
amendment made clear that exhaustion is now mandatory.”). Exhaustion requires
completion of “the administrative review process in accordance with the applicable
procedural rules, including deadlines.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). This
requirement is one of “proper exhaustion of administrative remedies, which means using
all steps that the agency holds out, and doing so properly (so that the agency addresses the
issues on the merits).” Id. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th
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Cir. 2002)). But the Court is “obligated to ensure that any defects in [administrative]
exhaustion were not procured from the action or inaction of prison officials.” AquilarAvellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).
To pursue a grievance, a prisoner confined in a Maryland prison may file a grievance
with the IGO against any Division of Correction (“DOC”) official or employee. Md. Code
Ann., Corr. Servs. § 10-206(a). However, to have a grievance approved by the IGO, the
prisoner must first follow the institutional grievance process before filing a grievance with
the IGO. See id. § 10-206(b). Inmates housed at an institution operated by the Department
of Public Safety and Correctional Services (“DPSCS”) may avail themselves of the
administrative remedy procedure (“ARP”) designed for inmate complaint resolution. See
generally id. § 10-201 et seq.; Md. Code Regs. (“COMAR”) 12.07.01.01B(1) (defining an
ARP).
A prisoner in a DOC institution must file an ARP with the facility’s managing
official within thirty days of the date on which the incident occurred, or within thirty days
of the date the prisoner first gained knowledge of the incident or injury giving rise to the
complaint, whichever is later. COMAR 12.02.28.09(B). If the managing official denies the
ARP, the prisoner has thirty days to file an appeal with the Commissioner of Correction.
Id. 12.02.28.14(B)(5). If the Commissioner of Correction denies the appeal, the prisoner
has thirty days to file a grievance with the IGO. Id. 12.02.28.18. The prisoner must include
in the grievance copies of the initial request or administrative remedy, the Warden’s
response to that request, a copy of the ARP appeal filed with the Commissioner of
Correction, and a copy of the Commissioner’s response. Id. 12.07.01.04(B)(9)(a). If the
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grievance is determined to be “wholly lacking in merit on its face,” the IGO may dismiss
it without a hearing. Md. Code Ann., Corr. Servs. § 10-207(b)(1); see also COMAR
12.07.01.07(B). An order of dismissal constitutes the final decision of DPSCS for purposes
of judicial review. Md. Code Ann., Corr. Servs. § 10-207(b)(2)(ii). An inmate has not
exhausted their administrative remedies until they have pursued their grievance through all
levels. See Woodford, 548 U.S. at 90; see also Gibbs v. Bureau of Prisons, 986 F.Supp.
941, 943–44 (D.Md. 1997).
An inmate need only exhaust “available” remedies. 42 U.S.C. § 1997e(a). In Ross
v. Blake, 578 U.S. 632 (2016), the Supreme Court rejected a “freewheeling approach to
exhaustion as inconsistent with the PLRA.” Id. at 635. In particular, it rejected a “special
circumstances” exception to the exhaustion requirement. Id. But, it reiterated that “[a]
prisoner need not exhaust remedies if they are not ‘available.’” Id. at 636. “[A]n
administrative remedy is not considered to have been available if a prisoner, through no
fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d
717, 725 (4th Cir. 2008).
The Supreme Court stated in Ross that an administrative remedy is available if it is
“‘capable of use’ to obtain ‘some relief for the action complained of.’” 578 U.S. at 642
(quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). Thus, an inmate must complete the
prison’s internal appeals process, if possible, before bringing suit. See Chase, 286
F.Supp.2d at 529–30. As a prisoner, Myers is subject to the strict requirements of the
exhaustion provisions. See Porter, 534 U.S. at 528 (making no distinction with respect to
exhaustion requirement between suits alleging unconstitutional conditions and suits
17
alleging unconstitutional conduct). Exhaustion is also required even though the relief
sought is not attainable through resort to the administrative remedy procedure. See Booth,
532 U.S. at 741.
The Ross court outlined three circumstances when an administrative remedy is
unavailable and an inmate’s duty to exhaust available remedies “does not come into play.”
578 U.S. at 643. First, “an administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id.
Second, “an administrative scheme might be so opaque that it becomes, practically
speaking, incapable of use. In this situation, some mechanism exists to provide relief, but
no ordinary prisoner can discern or navigate it.” Id. at 643–44. The third circumstance
arises when “prison administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.” Id. at 644.
State Defendants assert that Myers did not file an ARP concerning the March 7,
2022 incident until October 29, 2022, over 7 months after the alleged use of excessive
force. (See Mot. Dismiss at 9). As Myers failed to timely file his ARP, he has failed to
properly exhaust his administrative remedies. Furthermore, even if the untimeliness of his
initial ARP could be overlooked, Myers failed to complete all three steps of the exhaustion
process, only appealing to the Commissioner of Correction. (See Appeal to Commissioner
at 1, ECF No. 34-3). As such, Myers failed to exhaust his excessive force claim against
Defendants Wagner and Yoder.
18
In his Opposition, Myers contends that his earlier attempts at exhausting his
administrative remedies were “intentionally ignored after filing formal complaints against
Officers Wagner and Yoder.” (Resp. Opp’n [“Opp’n Mot. Dismiss”] at 8, ECF No. 44).
State Defendants dispute Myers’ allegations, asserting that he fails to provide any evidence
of having filed prior complaints, such as the dates of filing or copies of the formal
complaints. (Reply Mot. Dismiss at 3, ECF No. 48). The Court agrees. Myers has provided
no evidence to demonstrate that he attempted to file earlier grievances nor to support his
conclusion that they were ignored. As such, Myers fails to show that these administrative
remedies were unavailable to him. The Complaint against Defendant Yoder and Wagner
will be dismissed without prejudice.
2.
Eleventh Amendment Immunity and Supervisory Liability
State Defendants also argue that Defendant Green, who is sued in his official
capacity as the Secretary of DPSCS, is entitled to immunity. (Mot. Dismiss at 10–11).
Under the Eleventh Amendment to the United States Constitution, a state, its agencies, and
departments are immune from suits in federal court brought by its citizens or the citizens
of another state, unless it consents. See Pennhurst State Sch. and Hosp. v. Halderman, 465
U.S. 89, 100 (1984) (“It is clear, of course, that in the absence of consent a suit in which
the State or one of its agencies or departments is named as the defendant is proscribed by
the Eleventh Amendment.”) (citations omitted)).
The Supreme Court, however, has “permit[ted] citizens to sue state officials to
enjoin the enforcement of unconstitutional laws,” creating “an exception to the general
constitutional command that federal courts do not have jurisdiction over suits by citizens
19
against the states.” Lyle v. Griffith, 240 F.3d 404, 412 (4th Cir. 2001) (Wilkinson, C.J.,
dissenting) (citing Ex parte Young, 209 U.S. 123, 154, 156 (1908)). “In determining
whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court
need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as prospective.’”
Verizon Md., Inc. v. Pub. Service Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)); see also Alden v. Maine,
527 U.S. 706, 757 (1999) (“The rule, however, does not bar certain actions against state
officers for injunctive or declaratory relief.”); CareFirst, Inc. v. Taylor, 235 F.Supp.3d 724,
735 (D.Md. 2017) (“It clearly is proper to sue a government official in his official capacity,
and it can be essential to the claim where, as here, plaintiffs assert that they are entitled to
declaratory and injunctive relief under Ex parte Young.”). In other words, Eleventh
Immunity does not bar suits seeking declaratory or prospective injunctive relief, as long as
such relief would not impose monetary liability. See Edelman v. Jordan, 415 U.S. 651, 664
(1974); see also McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010) (explaining
that a state officer who has a “special relation” to the injunctive relief plaintiff seeks may
be sued in his official capacity to ensure that any “federal injunction will be effective with
respect to the underlying claim”) (quoting S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324,
333 (4th Cir. 2008)).
Here, Myers seeks prospective injunctive relief (immediate medical attention) in
addition to monetary damages against all Defendants. (Compl. at 3). As such, Defendant
Green is not entitled to Eleventh Amendment immunity on the injunctive relief claim.
20
However, as Myers fails to allege Green’s personal participation in any constitutional
violation or that he is liable in his supervisory capacity, the Complaint against him must be
dismissed in its entirety.
In a suit arising under 42 U.S.C. § 1983, the doctrine of respondeat superior
generally does not apply and liability attaches only upon a defendant’s personal
participation in the constitutional violation. See Wright v. Collins, 766 F.2d 841, 850 (4th
Cir. 1985); see also Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004). Liability of
supervisory officials “is premised on ‘a recognition that supervisory indifference or tacit
authorization of subordinates’ misconduct may be a causative factor in the constitutional
injuries they inflict on those committed to their care.’” Baynard v. Malone, 268 F.3d 228,
235 (4th Cir. 2001) (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984)). Thus,
supervisory liability under § 1983 must be supported with evidence that: (1) the supervisor
had actual or constructive knowledge that his subordinate was engaged in conduct that
posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff;
(2) the supervisor’s response to the knowledge was so inadequate as to show deliberate
indifference to or tacit authorization of the alleged offensive practices; and (3) there was
an affirmative causal link between the supervisor’s inaction and the particular
constitutional injury suffered by the plaintiff. See Shaw v. Stroud, 13 F.3d 791, 799 (4th
Cir. 1994) (citations omitted).
Myers does not allege any facts which support a finding that Green personally
participated in a constitutional violation in connection with the removal of the metal shard
from his arm or his foot injury, or that he was deliberately indifferent to or tacitly
21
authorized any such violation of Myers’ rights. His Opposition, which provides only
conclusory allegations as to Defendant Green’s failures to properly train and supervise, is
insufficient. (See Opp’n at 4, 10–11). Accordingly, the Complaint must be dismissed
against him.
C.
Medical Defendants’ Motion for Summary Judgment
1.
Eighth Amendment Deliberate Indifference Standard
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 Estelle v. Gamble, 429 U.S. 97, 102 (1976); Scinto v. Stansberry, 841
F.3d 219, 225 (4th Cir. 2016); King v. Rubenstein, 825 F.3d 206, 218 (4th Cir. 2016). To
sustain a claim for denial of medical care under the Eighth Amendment, the plaintiff must
show that defendants’ acts or omissions were done with deliberate indifference to a serious
medical need. See Estelle, 429 U.S. at 106; see also Anderson v. Kingsley, 877 F.3d 539,
543 (4th Cir. 2017). Medical Defendants argue that Myers’ metal splinter was not a serious
medical need. (Mem. L. Supp. Mot. Summ. J. [“Mot. Summ. J.”] at 13, ECF No. 36-1).
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 were aware of the need for medical attention but failed to either provide it or
ensure it was available. See Farmer v. Brennan, 511 U.S. 825, 834–37 (1994); see also
Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209–10 (4th Cir. 2017); King v. Rubenstein,
825 F.3d 206, 218 (4th Cir. 2016); Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008).
Objectively, the medical condition at issue must be serious. See Hudson v. McMillian, 503
22
U.S. 1, 9 (1992) (there is no expectation that prisoners will be provided with unqualified
access to health care); Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). “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.
The subjective component requires “subjective recklessness” in the face of the
serious medical condition. See Farmer, 511 U.S. at 839–40; see also Anderson, 877 F.3d
at 544. Under this standard, “the prison official must have both ‘subjectively recognized a
substantial risk of harm’ and ‘subjectively recognized that his[/her] actions were
inappropriate in light of that risk.’” Anderson, 877 F.3d at 545 (quoting Parrish ex rel. Lee
v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)); see also Rich v. Bruce, 129 F.3d 336,
340 n.2 (4th Cir. 1997) (“True subjective recklessness requires knowledge both of the
general risk, and also that the conduct is inappropriate in light of that risk.”). “Actual
knowledge or awareness on the part of the alleged inflicter . . . becomes essential to proof
of deliberate indifference ‘because prison officials who lacked knowledge of a risk cannot
be said to have inflicted punishment.’” Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th
Cir. 1995) (quoting Farmer, 511 U.S. at 844). 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
23
substantial risk from the very fact that the risk was obvious.” Scinto, 841 F.3d at 226
(quoting Farmer, 511 U.S. at 842). If the requisite subjective knowledge is established, an
official may avoid liability “if [he] responded reasonably to the risk, even if the harm
ultimately was not averted.” Farmer, 511 U.S. at 844; see also Cox v. Quinn, 828 F.3d 227,
236 (4th Cir. 2016) (“[A] prison official’s response to a known threat to inmate safety must
be reasonable.”).
2.
Metallic Foreign Body Claims
Medical Defendants assert that they are entitled to summary judgment as to Myers’
claim that he did not receive adequate treatment for the metallic sliver lodged in his arm
because it did not present an objectively serious medical need. (Mot. Summ. J. at 13). The
record before the Court shows that the YesCare Utilization Management team ultimately
determined that surgical removal of the metallic sliver was not medically necessary
because it was not interfering with Myers’ activities of daily living. Thus, Myers’ condition
had not been diagnosed as mandating treatment. Furthermore, as Myers reported only mild
discomfort, it was not obvious that surgical repair was necessary. Although the Court
acknowledges that it took an extended period of time for Utilization Management to come
to a decision following the initial consult, the Court cannot find that Myers presented with
an objectively serious medical need. “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 (3d Cir. 1970)); accord Jackson v. Lightsey, 775 F.3d
170, 178 (4th Cir. 2014) (“[W]e consistently have found such disagreements to fall short
24
of showing deliberate indifference.”). As no exceptional circumstances are presented here,
the Medical Defendants are entitled to summary judgment on this claim.
3.
Foot Injury Claims
As to Myers’ foot injury, Medical Defendants do not contest that it presented an
objectively serious medical need. (Mot. Summ. J. at 14). They contend, however, that they
are entitled to summary judgment because Myers cannot demonstrate deliberate
indifference by the Medical Defendants. (Id.). As to Defendant Rahman, Myers only seeks
to hold him responsible in his supervisory capacity. The record shows that Rahman is not
a medical provider nor does he have the power to dictate how medical care is provided.
Furthermore, nothing in the record shows that Rahman had any actual or constructive
knowledge that a subordinate was engaging in behavior that posed a risk of constitutional
injury to Myers or that there was widespread and pervasive misconduct that posed a risk to
individuals such as Myers. The Court finds that Rahman was neither deliberately
indifferent to nor did he tacitly authorize any misconduct by his subordinates, and thus
Myers’ claim for supervisory liability fails and Defendant Rahman is entitled to summary
judgment in his favor.
The final Defendant is YesCare Corp. against whom Myers has alleged there is a
custom or policy by which medical care is only provided when the issue is raised by a third
party rather than an inmate. Myers has done little to support the allegation that he only
received attention at the request of those outside the medical department. The medical
records provided show that he has been continuously seen by medical providers over the
past two years to treat his foot injury. Although there are factual disputes about
25
appointments refused and delays in follow up care, the record does not provide any
evidence that this care was provided only at the request of someone other than Myers. He
provides no support for his claim in his opposition and instead reasserts his version of the
facts and objects to how YesCare determines what treatment is medically necessary.
However, Myers’ objections are once again mere disagreements with the chosen course of
treatment, which, as discussed above, are not the basis for a constitutional violation. As he
provides no evidence of an unconstitutional policy or custom or other deliberate
indifference by Defendant YesCare, summary judgment must be granted in its favor.
III.
CONCLUSION
For the foregoing reasons, the State Defendants’ Motion to Dismiss (ECF No. 34)
and the Medical Defendants’ Motion for Summary Judgment (ECF No. 36) will be granted.
A separate Order follows.
Entered this 7th day of February, 2024.
/s/
George L. Russell, III
United States District Judge
26
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