Savage v. Charge Nurse Yolanda et al

Filing 13

MEMORANDUM OPINION. Signed by Judge Julie Rebecca Rubin on 5/10/2024. (c/m) (hmls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
GERALD SAVAGE,
Plaintiff,
v.

Civil Action No. JRR-23-2056

YVONNE JOLLEY, RNS, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Gerald Savage filed this civil action pursuant to 42 U.S.C. § 1983. ECF No. 1.
Savage alleges that his constitutional rights were violated while confined to Eastern Shore
Community Hospital (“ESCH”). Id. The Defendants filed a Motion to Dismiss the Complaint, or
in the Alternative, for Summary Judgment. ECF No. 11. Mr. Savage was advised of his right to
file an opposition response to the motion and of the consequences of failing to do so. ECF No. 12.
Mr. Savage filed nothing further. The Court has reviewed the pleadings and finds a hearing
unnecessary. See Loc. R. 105.6 (D. Md. 2023). For the reasons stated below, the Defendants’
Motion, construed as a Motion to Dismiss, shall be granted.
I.

BACKGROUND
Mr. Savage filed suit against three individuals: Yolanda, the “Charge Nurse” on

“Nanticoke Tier;” Pam, a “CNA Nurse” on “Nanticoke Tier;” and a “70 year old security guard
named ‘Rudy.’” Compl., ECF No. 1 at 2-3. The Defendants identified two of these individuals as
Yvonne Jolley, RNS, and Pam Airey, DCA. 1 ECF No. 11-1 at 1. Defendants were unable to

The Clerk will be directed to update the docket to reflect Defendants’ correct names, which will be utilized
throughout this memorandum.

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identify “a security guard fitting the name or description listed in Plaintiff’s Complaint.” 2 Id. Mr.
Savage was committed to ESCH, “a secure State psychiatric hospital, for the purposes of
conducting a competency evaluation ordered by the District Court of Maryland for Wicomico
County in a theft case, as well as a second-degree assault case from Somerset County District
Court.” ECF No. 11-1. Mr. Savage resided at ESCH from September 26, 2022, until March 2,
2023. Id. His Complaint makes a host of allegations regarding his time at ESCH. ECF No. 1.
First, Mr. Savage alleges that while at ESCH, “on more than one occasion” he was not
permitted to sit and study the bible with other patients. ECF No. 1 at 5. Specifically, he alleges
Charge Nurse Jolley prevented him from studying the bible with two other patients. Id. He argues
that this amounts to a violation of his First Amendment rights. Id.
Next, he states that he “was not giving [sic] a proper mental health treatment because of
my race and religion.” Id. No supporting facts are provided for this contention. 3
On an unspecified day, Mr. Savage states that he was transported to a doctor’s appointment
by DCA Airey and “Rudy.” Id. He states that the ankle shackles used while transporting him
were too tight, which caused him to fall and injure his back causing an “immediate” loss of control
of his bowels. Id. As a result, he states that he required diapers and Charge Nurse Jolley would
only provide him one diaper per day. Id. He states that he had to sit in his own feces each day
until 7:00 p.m. when he was permitted to shower. 4 Id. This was painful, causing “boils” and
“bleeds,” as well as embarrassment because other patients would make fun of him. Id.

For reasons discussed infra, “Rudy” will be dismissed from this action.
No Defendants are identified as responsible for this allegation, nor are any supporting facts provided, and thus this
claim is dismissed without prejudice and the Court will not consider it.
4
Mr. Savage includes what appear to be two diary-style documents with his Complaint. ECF No. 1 at 7-8. These
pages, dated December 6 and 7, 2022, detail the allegations regarding wounds from his diaper and his inability to
shower. Id.
2
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Finally, he states that he was unable to walk while recovering from his back injury. Id.
Because the staff forced him to line up for dinner, which he could not do, he missed meals on
several occasions. 5 Id.
As relief, Mr. Savage is seeking three million dollars in punitive damages, and 2.5 million
dollars in compensatory damages. Id. at 10.
In response, Defendants filed a Motion seeking dismissal of Mr. Savage’s Complaint, or
alternatively, summary judgment. ECF No. 11. First, they argue that dismissal is appropriate
because Mr. Savage has not satisfied the pleading requirements of the Federal Rules of Civil
Procedure because his Complaint “has little detail and instead relies on vague allegations.” Id. at
5. Next, they argue that, to the extent Mr. Savage is suing the Defendants in their official
capacities, 6 his claims are barred by the Eleventh Amendment. Id. at 6.
As to Mr. Savage’s First Amendment claims regarding the practice of his religion,
Defendants argue that “any limitation to his reading or Bible study were related to a limited
hospital policy in place for safety and security.” Id. at 7. Defendants additionally argue that Mr.
Savage’s claims do not amount to violations of either the Fifth or Fourteenth Amendment. Id. at
7. Further, they argue that Mr. Savage failed to file a claim with the Health Care Alternative
Dispute Resolution Office (“HCADRO”), “thereby neglecting to satisfy a condition precedent to
suit for medical injuries that were allegedly caused by a healthcare provider.”

Id. at 8.

Additionally, they argue Mr. Savage has failed to comply with the Maryland Tort Claims Act. Id.
at 9. Finally, they argue the Defendants are entitled to qualified immunity. Id. at 10.

Mr. Savage includes a copy of a Resident Grievance with his Complaint which addresses missed meals. ECF No. 1
at 9. Again, Mr. Savage does not identify any Defendants he seeks to hold responsible for this allegation. Thus, this
claim too shall be dismissed without prejudice.
6
The Complaint does not expressly specify whether Defendants are sued in their official or individual capacities,
however, the nature of the allegations and claims pertain to Defendants’ respective actions while at their place of
employment and related to their respective employment roles and responsibilities.
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As noted, the motion is unopposed.
II.

STANDARD OF REVIEW
Defendants move to dismiss the Complaint for failure to state a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6). 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). “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).
In reviewing the motion, the Court accepts the well-pleaded allegations as true and in the
light most favorable to Mr. Savage. Twombly, 550 U.S. at 555. “However, conclusory statements
or a ‘formulaic recitation of the elements of a cause of action will not [suffice].’” EEOC v.
Performance Food Grp., Inc., 16 F. Supp. 3d 584, 588 (D. Md. 2014) (quoting Twombly, 550 U.S.
at 555). “Factual allegations must be enough to raise a right to relief above a speculative level.”
Twombly, 550 U.S. at 555. “‘[N]aked assertions’ of wrongdoing necessitate some ‘factual
enhancement’ within the complaint to cross ‘the line between possibility and plausibility of
entitlement to relief.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting
Twombly, 550 U.S. at 557).
Although pro se pleadings are construed generously to allow for the development of a
potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), courts cannot ignore a clear
failure to allege facts setting forth a cognizable claim. See Weller v. Dep’t of Soc. Servs., 901 F.2d
387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude’ with which a district court should view

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such pro se complaints does not transform the court into an advocate. Only those questions which
are squarely presented to a court may properly be addressed.”) (internal citation omitted)). “A
court considering a motion to dismiss can choose to begin by identifying pleadings that, because
they are not more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal,
556 U.S. 662, 665 (2009).
III.

DISCUSSION
A. Defendants Airey and “Rudy”
Mr. Savage has not stated a federal claim against Defendant Airey or Defendant “Rudy.”

The Court has thoroughly examined the Complaint and finds that it is insufficient and fails to
adequately allege a claim. As to these two defendants, Mr. Savage states only: “I was transported
to the doctor's appointment by [Defendant Airey] and a 70 year old security guard the old security
guard put the shackles on my ankle too tight and I tripped over them and was injured. I was
diagnosed with a back sprain and I immediately lost control of my bowels.” ECF No. 1. No other
factual details are provided, including a date when this incident occurred. No constitutional claim
has been stated against Defendant Airey, as it is only alleged that she was involved in taking Mr.
Savage to his doctor’s appointment.
As to Defendant Rudy, merely placing shackles too tight, without more, does not amount
to a constitutional violation. Zellers v. Dillman, No. 7:22-CV-00479, 2023 WL 6218287, at *5
(W.D. Va. Sept. 25, 2023) (“To the extent that [Defendant] can be responsible for not removing
or modifying the restraints, the use of handcuffs, without more, is insufficient to constitute an
Eighth Amendment violation.”); Price v. White, No. 5:13-CV-P76-R, 2013 WL 4773969, at *5
(W.D. Kent. Sept. 4, 2013) (“[H]andcuffs and shackles are an ordinary part of prison life, and their
use, without more, is neither cruel nor unusual.”); Teasley v. Barnette, No. 5:05 CV 23-03-MU,
2005 WL 1806411, at *2 (W.D.N.C. July 25, 2005) (“Plaintiff's allegation that his handcuffs were
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too tight does not state an Eighth Amendment claim for excessive force.”); Ireland v. Solano Cnty.
Sheriff, No. 2:08-CV-2102-RCF, 2009 WL 3055217, at *1 (E.D. Cal. Sept. 16, 2009) (“The
ordinary use of handcuffs and other restraints, while undoubtedly uncomfortable, is part of the
routine discomfort that is part of the penalty that criminal offenders pay for their offenses against
society.”) (internal quotations omitted). Further, there is no allegation that either Defendant was
in any way involved with the fall Mr. Savage experienced, which ultimately resulted in his injuries.
These Defendants are dismissed from this action, and all claims against them are dismissed.
B. Defendant Jolley
Construing Mr. Savage’s Complaint liberally, he appears to advance two claims against
Defendant Jolley. First, that she violated his First Amendment right to freely exercise his religion,
and, second, that she rendered inadequate medical care by providing “one diaper a day.” ECF No.
1 at 5. For the reasons stated below, neither claim can proceed.
The United States Code provides a federal cause of action for any individual who believes
a state actor has deprived him or her of a constitutional right. See 42 U.S.C. § 1983; City of
Monterey v. Del Monte Dunes, 526 U.S. 687, 707 (1999). The statute “is not itself a source of
substantive rights, but merely 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)). Two elements are essential to state a claim under § 1983: (1) plaintiff must
have suffered a deprivation of “rights, privileges or immunities secured by the Constitution and
laws” of the United States; and (2) the act or omission causing the deprivation must have been
committed by a person acting under color of law. West v. Atkins, 487 U.S. 42, 48 (1988). A
defendant’s own action—or failure to act—is required for liability under § 1983. See Love-Lane
v. Martin, 355 F.3d 766, 782 (4th Cir. 2004); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977).

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As to Mr. Savage’s claim that Defendant Jolley only provided one diaper per day, the
Eighth Amendment proscribes “unnecessary and wanton infliction of pain” by virtue of its
guarantee against cruel and unusual punishment. U.S. CONST, amend. VIII; Gregg v. Georgia, 428
U.S. 153, 173 (1976); see Estelle v. Gamble, 429 U.S. 97, 102 (1976); King v. Rubenstein, 825
F.3d 206, 218 (4th Cir. 2016). The Fourth Circuit has observed that “not all Eighth Amendment
violations are the same:

some constitute ‘deliberate indifference,’ while others constitute

‘excessive force.’” Thompson v. Virginia, 878 F.3d 89, 97 (4th Cir. 2017) (quoting Whitley v.
Albers, 475 U.S. 312, 319-20 (1986)). In general, the deliberate indifference standard applies to
cases alleging failure to safeguard the inmate’s health and safety, including failing to protect
inmates from attack, maintaining inhumane conditions of confinement, and failure to render
medical assistance. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S.
294, 303 (1991); Thompson, 878 F.3d at 97. Because there is no suggestion in the Complaint that
Defendant Jolley utilized force of any kind, only an analysis of deliberate indifference is applicable
here.
For convicted individuals, to establish liability, a two-part inquiry that includes both an
objective and a subjective component must be satisfied. See Raynor, 817 F.3d at 127. Importantly,
however, as noted above, Mr. Savage was awaiting a competency evaluation in two cases while at
ESCH. Thus, it appears he was a pretrial detainee at the time when the incidents giving rise to his
claims occurred. 7 This distinction is important because “pretrial detainees can state a claim under
the Fourteenth Amendment, based on a purely objective standard, for prison officials’ deliberate
indifference to excessive risks of harm.” Short v. Hartman, 87 F.4th 593, 604–605 (4th Cir. 2023).
Indeed, “[t]he Fourteenth Amendment Due Process Clause protects pretrial detainees from

Neither Mr. Savage, nor the Defendants, clearly articulate his custodial status. However, taking the facts in the
Complaint in the light most favorable to Mr. Savage, the Court will analyze his claim as if he were a pretrial detainee
at the time of the incidents in question, as that standard is purely objective, and thus considerably easier to satisfy.
7

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‘governmental action’ that is not ‘rationally related to a legitimate nonpunitive governmental
purpose’ or that is ‘excessive in relation to that purpose.’” Id. at 608-609, quoting Kingsley v.
Hendrickson, 576 U.S. 389, 398 (2015) (citations omitted). “[I]t is sufficient that the plaintiff
show that the defendant’s action or inaction was . . . ‘objectively unreasonable,’. . . that is, the
plaintiff must show that the defendant should have known of that condition and that risk, and acted
accordingly . . . . [I]t is enough that the plaintiff show that the defendant acted or failed to act ‘in
the face of an unjustifiably high risk of harm that is either known or so obvious that it should be
known.’” Short, 87 F.4th at 611 (citations omitted). However, “it is . . . not enough for the plaintiff
to allege that the defendant negligently or accidentally failed to do right by the detainee.” Id. at
611-12.
As to Mr. Savage’s claim against Defendant Jolley, he simply states that she provided “one
diaper a day.” ECF No. 1 at 5. He further states that ESCH only permitted him to shower at 7:00
p.m. Id. As to Defendant Jolley specifically, the exhibits Mr. Savage includes state: “I was told
by [Defendant Jolley] that I could take a bath until 7:00 p.m. The time is 3:30.” Id. at 7. And “I
was told by [Defendant Jolley] that I cant [sic] have a diaper today.” Id. at 8. Mr. Savage provides
no additional details on which the court might reasonably conclude that these actions by Defendant
Jolley were “objectively unreasonable” in the face of an “unjustifiably high risk of harm.” Short,
87 F.4th at 611. Mr. Savage does not allege that he was not offered other options to clean himself,
or that he was denied other undergarments, or that the risk of harm related to delaying his shower
was so obvious that it should have been known to Defendant Jolley. For these reasons, this claim
is dismissed.
As to Mr. Savage’s final claim, that Defendant Jolley violated his First Amendment right
to freely exercise his religion, this claim too must be dismissed. A detainee or prisoner has a First
Amendment right to free exercise of religion while in prison. See Cruz v. Beto, 405 U.S. 319, 322
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(1972). To state a claim for violation of rights under the Free Exercise Clause, a plaintiff must
demonstrate: (1) a sincere belief in a religion; and (2) a prison practice or policy that places a
substantial burden on the plaintiff’s ability to practice that religion. See Wilcox v. Brown, 877
F.3d 161, 168 (4th Cir. 2017). A substantial burden is placed upon a prisoner’s religious exercise
when it “put[s] substantial pressure on an adherent to modify his behavior and to violate his
beliefs.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981). Nevertheless,
prison restrictions that impact on First Amendment rights may be constitutional if they are
“reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 87, 91
(1987).
In Firewalker-Fields v. Lee, 58 F.4th 104 (4th Cir. 2023), the United States Court of
Appeals for the Fourth Circuit held that a jail did not violate the First Amendment when it did not
provide Jumah prayer services on Fridays, where it depended on outside volunteers and donations
to provide group religious services and had not received any relating to Muslim services, and it
did not permit inmate-led groups of any kind. Id. at 113, 120. It also held that the jail could
permissibly bar maximum security inmates from attending in-person religious services for security
reasons. Id. at 113, 118.
Mr. Savage does not allege that he was prevented from engaging in individual religious
practices; rather, he simply alleges he was prevented from discussing the bible with other patients
on certain unspecified occasions. Thus, this claim fails, because “the pertinent question is not
whether the inmates have been denied specific religious accommodations, but whether, more
broadly, the prison affords the inmates opportunities to exercise their faith.” Firewalker-Fields,
58 F.4th at 117 (noting that the relevant question is not whether the plaintiff “had the opportunity
to engage in Friday Prayer on his terms, but rather whether he could generally engage in worship”).

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Mr. Savage’s vague assertion that he was sometimes unable to study the bible in groups is
insufficient to state a claim and is therefore dismissed without prejudice. 8
IV.

CONCLUSION
For the foregoing reasons, the Defendants’ Motion to Dismiss, or Alternatively, for

Summary Judgment (ECF No. 11), construed as a Motion to Dismiss, is granted, and Savage’s
Complaint is dismissed.
A separate Order follows.
Date: May 10, 2024

/S/

___
Julie R. Rubin
United States District Judge

Because all claims and Defendants will be dismissed for the foregoing reasons, the Court declines to address
Defendants’ additional arguments. Further, to the extent Mr. Savage intended to raise any state law claims, they are
dismissed without prejudice. See Carnegie Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (“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.”) (citing United Mine Workers of America v. Gibbs, 383 U.S.
715, 726-727 (1966)).
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