Kelly v. Swan et al

Filing 41

MEMORANDUM OPINION. Signed by Judge Brendan Abell Hurson on 3/6/2025. (c/m p 3/6/2025 bg3s, Deputy Clerk)

. IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

KEITH DARNELL KELLY,
Plaintiff,
Civil Action No.: BAH-23-2432

V.

RN BURNICE SWAN, et al.,
Defendants.

MEMORANDUM OPINION

Self-represented Plaintiff Keith Darnell Kelly, an inmate at Western Correctional
Institution ("WCI") in Cumberland, Maryland, filed this civil rights complaint pursuant to 42
U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his medical needs .and
retaliated against him for filing grievances. ECF 1. Currently pending is Defendants Warden
Ronald Weber and Assistant Warden Bradley Butler's Motion to Dismiss, or Alternatively, for
Summary Judgment. ECF 28. Plaintiff opposes the Motion. ECF 34. No hearing is necessary.

See Local Rule 105.6 (D. Md. 2023). For the reasons stated below, Defendants' Motion is
GRANTED. The remaining defendants, ("the medical defendants") will be directed to file a status
report with suggested deadlines for discovery and dispositive motions.
I.

BACKGROUND
A. Factual Allegations

Plaintiff filed this case against Defendants Ronald Weber, Warden at WCI, and Bradley
Buder, Assistant Warden at WCI (the "correctional defendants") 1 as well as numerous medical

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Plaintiff also named Administrative Remedy Procedure ("ARP") coordinator Alicia Cartwright.
ECF 1 at 5. Service was not accepted for Cartwright, however, because she no longer works for
the Department of Public Safety and Correctional Services ("DPSCS"). ECF 9. Plaintiff fails to

staff (the "medical defendants") alleging that they failed to provide adequate medical care for his
deep vein thrombosis ("DVT") over the course of two years in violation of his Eighth Amendment
rights. ECF 1.2 Plaintiff alleges that in August and September of 2021, he was denied medical
treatment for several weeks as his leg swelled and began to turn black. ECF 1 at 9-26, 28-35. On
September 8, 2021, he finally saw a doctor who immediately sent him to the emergency room
where he was diagnosed with DVT. Id. at 36-38. Thereafter, Plaintiff alleges that he was
repeatedly denied medical care for DVT over the course of the next two years. See generally id.
at 38-42 and ECF 1-1. He alleges that nursing staff regularly failed to administer his medication
and conduct required blood tests resulting in repeated trips to the emergency room. ECF 1 at 8-9;
ECF 1-1 at 8, 35. He alleges that nursing staff accused him of being non-compliant with his
medication when they failed to provide it and that they retaliated against him for filing ARP' s by
further denying him care. ECF 1 at 15; ECF 1-1 at 17. Plaintiff filed numerous ARP's regarding
his medical issues, several of which were found meritorious and meritorious in part. ECF 5-1.
Defendant Assistant Warden Butler signed and responded to many of these ARP's. Id. at 14, 18,
20,22,25,28,30,34,35,28,42,44,57.

state a claim against Cartwright as he does not allege that she was involved in any violation of his
rights. She is listed as a defendant, but the only factual allegation made against her is that Plaintiff
asked her to photograph his injuries and did not receive a response. ECF 1 at 18; 1-1 at 43. As
such, he fails to state a claim against her, and the Complaint will be dismissed against her pursuant
to 28 U.S.C. 1915A(b).
2 The Complaint is. a 96-page iteration of Plaintiffs medical history from August 2021 through

August 2023. Id. Plaintiff supplemented his Complaint with an additional 77 pages of documents,
largely consisting of copies of Administrative Remedy Procedure ("ARP") grievances and
responses. ECF 5.
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B. Correctional Defendants' Response

Warden Weber and Assistant Warden Butler move to dismiss the Complaint, arguing that
ihey ·are immune from suit -in their official capacities pursuant -to the Eleventh Amendment and
that Plaintiff fails to state a claim for § I 983 liability because he does not allege either personal
participation or supervisory liability. ECF 28-1 at 10-15. Alternatively, Defendants argue that
summary judgment should be granted in their favor because the evidence shows they_ were not
deliberately indifferent to Plaintiffs serious medical need. Id. at 15-16.
In addition to a Memorandum of Law in support-of the Motion, Warden Weber provided a
declaration attesting that he has "no personal involvement in the provision of medical care to any
WCI inmate, authority to make decisions concerning any inmate's medical care, or authority to
order or recommend the contractor's staff to perform any particular medical procedure, prescribe
any medication or render any particular treatment." ECF 28-3 at i 2. Assistant Warden Butler's
declaration makes a nearly identical statement. ECF 28-4 at i 2. Assistant Warden Butler also
explains that inmates' ARP's regarding medical care are shared with medical staff and
management and discussed at monthly meetings, id. at i 5, and he further attests that "[w]hen
responding to WCI incarcerated individuals' complaints about the medical care provided to them,
my staff and I rely on the reports, assessments and judgments of the contractor's trained medical
staff to prepare any response for my signature." ECF 28-4 at ii 4-5. In addition, he declares that
""[t]hough correctional personnel like myself may be made aware of incarcerated individuals'
grievances, those grievances are related to medical personnel for them to address and/or remedy
as appropriate.'' Id. at i 6. Both Warden Weber and Assistant Warden Butler attest that they "have
not interfered with, hindered, or delayed medical treatment or care to [Plaintiff]." ECF 28-3 at 5
and 28-4 at i 6.

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Defendants also submitted records of Plaintiffs ARP's and responses as well as the
minutes of monthly medical meetings for the Cumberland Correctional Complex, which includes
WCI. ECF 28-6 and 28-7.

II. LEGAL STANDARDS
Defendants argue that the complaint should be dismissed pursuant to Fed. R. Civ. P.
12(b)(6), or, alternatively, that summary judgment should be granted in their favor pursuant to
Fed. R. Civ. P. 56. See ECF 13-1. A motion to dismiss styled in the alternative as a motion for
summary judgment implicates the Court's discretion under Rule 12(d) of the Federal Rules of Civil
Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery Cnty., 788 F. Supp. 2d 431, 43637 (D. Md. 2011), aff'd 684 F.3d 462 (4th Cir. 2012). Conversion ofa motion to dismiss to one
for summary judgment is permissible where a plaintiff has 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 a movant expressly captions its motion to dismiss "in the
alternative" as one for summary judgment and submits matters outside the pleadings for the
Court's consideration, the parties are deemeq to be on notice that conversion under Rule 12(d)
may occur as the Court "does not have an obligation to notify parties of the obvious." Laughlin,
149 F.3d at 261; see also Willey v. Bd. of Educ. o/St. Mary's Cnty., 557 F. Supp. 3d 645,657 (D.
Md. 2021) ("Notably, 'the Federal Rules do not prescribe that any particular notice be given before
a Rule 12 motion is converted to a Rule 56 motion."' (quoting Ridgell v. Astrue, Civ. No. DKC10-3280, 20i2 WL 707008, at *7 (D. Md. Mar. 2, 2012))).
Because Defendants filed their motions as motions to dismiss or, in the alternative, for
summary judgment, Plaintiff was on notice that the Court could treat the motions as ones for
summary judgment and rule on that basis. Accordingly, the Court will review Plaintiffs claims

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against Defendants under the Rule 56(a) standard and will consider the exhibits filed in support of
Defendants' Motion where appropriate.
Rule 56 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). "A dispute is genuine if'a reasonable jury could return a verdict for
the nonmoving party."' Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013)
(quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). "A fact is
material if it 'might affect the outcome of the suit under the governing law."' Id. (quoting Henry
v. Purnell, 652 F.3d 524, 548 (4th Cir.2011)). Accordingly, "the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment .... " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis
in original). "[I]n ruling on a motion for summary judgment, '[t]he evidence of the nonmovant is
to be believed, and all justifiable inferences are to be drawn in his favor.'" Tolan v. Cotton, 572
U.S. 650, 651 (2014) (per curiam) (quoting Anderson, 477 U.S. at 255) (second alteration in
original). At the same time, the Court must "prevent factually unsupported claims and defenses
from proceeding to trial." Bouchat v. Bait. Ravens Football Club, Inc., 346 F.3d 514,526 (4th Cir.
2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 773.:...79 (4th Cir. 1993)).
The Court is mindful that Plaintiff is a self-represented litigant. A federal court must
liberally construe pleadings filed by pro se litigants to allow them to fully develop potentially
meritorious cases. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). But liberal construction does
not mean that a court can "ignore an obvious failure to allege facts setting forth a plausible claim
for relief." Sheehan v. Saoud, 650 F. App'x 143, 152 (4th Cir. 2016) (citing Weller v. Department

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of Social Services, 901 F.2d 387,391 (4th Cir. 1990)). A court cannot assume the existence of a

genuine issue of material fact where none exists. Fed. R. Civ. P. 56(c).

III.

DISCUSSION
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 Hope v. Pelzer, 536 U.S. 730, 737 (2002); Scinto v. Stansberry, 841 F.3d 219, 225 (4th

Cir. 2016); King v. Rubenstein, 825 F.3d 206, 218 (4th Cir. 2016). "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)); accord Anderson v. Kingsley, 877 F.3d 539,543 (4th Cir. 2017). To state
an Eighth Amendment claim for deniaf of medical care, a plaintiff must demonstrate that the
actions of the defendants, or their failure to act, amounted to deliberate indifference to a serious
medical need. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Anderson, 877 F.3d at
543.
Deliberate indifference to a serious medical need requires proof that, objectively, the
prisoner plaintiff was suffering from a serious medicaJ.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, 834-38 (1994); see also Heyer v. United States
Bureau of Prisons, 849 F.3d 202, 209-10 (4th Cir. 2017); King, 825 F.3d at 218; Jko v. Shreve,

535 F.3d 225, 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 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

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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 at210 (quotinglko, 535 F.3d at241); see, e.g., 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).
After a serious medical need is establis.hed, a successful Eighth Amendment 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. 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.· Virginia 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 substantial risk from the very fact
that the risk was obvious." Scinto, 841 F.3d at 226 (quoting Farmer, 511 U.S. at 842).
Liability under § 1983 attaches only upon personal participation by a defendant in the
constitutional violation. It is well established that the doctrine of respondeat superior does not
apply in§ 1983 claims. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004). Liability of
supervisory officials "is not based on ordinary principles of respondeat superior, but rather is

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premised on 'a recognition that supervisory indifference or tacit authorization of subordinates'
misconduct may be a causative factor in the constitutional injuries they inflict ori those committed
to their care.'" Baynardv. Malone, 268 F.3d 228,235 (4th Cir. 2001) (quoting Slakan v. Porter,
737 F.2d 368, 372 (4th Cir. 1984)). 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).
Plaintiff clearly alleges that he suffered from a serious medical condition, which
Defendants do not directly refute. See ECF 28-1 at 16. Based on the website referenced by
Defendants; DVT is a serious medical condition in which a blood clot develops in the deep veins
causing swelling, pain, warmth, and discoloration. ECF 28-1 at n.1. 3 The treatment includes
medication, compression stockings, and sometimes surgery. Id. DVT can lead to a pulmonary
embolism in which part of the clot breaks off and travels to the lungs, which constitutes a medical
emergency and can be fatal. Id. The condition can become a chronic illness. Id. In his Complaint,
Plaintiff alleges that in August and September of 2021, his leg was increasingly swollen, painful,
and discolored, and that he was ultimately diagnosed with DVT after being taken to the emergency
room on September 8, 2021. ECF 1 at 35. For the following two years, he was treated with

3 U.S. Centers for Disease Control and Prevention, Venous Thromboembolism (Blood Clots),

https://www.cdc.gov/bloodclots/about/?CDC AAref Val=https://www.cdc.gov/ncbddd/dvt/facts
.html (last visited March 5, 2025).
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medication and compression stockings, but alleges that he did not consistently receive necessary
treatment resulting in returns to the emergency room. ECF 1 and 1-1.
Plaintiff alleges that Warden Weber and Assistant Warden Butler are each "legally
responsible for the operation of WCI and for the overall welfare of all the inmates in the prison."
ECF 1 at 6. Plaintiff alleges that "prison officials" had "clear knowledge" of his "obvious serious
medical needs" but that they failed to "go Obeyond the advice of the nurses to get Plaintiff medical
care." Id. at 7. He states that on September 2, 2021, he wrote to the Wardens as well as other
prison officials regarding his swollen and painful leg. Id. at 18.

A. Warden Weber
Nothing in the record demonstrates that Warden Weber personally participated in the
alleged denial of medical care to Plaintiff or that he was aware of Plaintiffs serious medical needs.
While Plaintiff alleges that he wrote to "the Wardens" about his medical problems, Plaintiff does
not provide any specifics regarding this correspondence, and there is nothing in the record to
indicate that Warden Weber received it. Furthermore, Warden Weber attests that he has no
authority to participate in Plaintiffs medical care and no authority to dictate the medical care
providers' actions. Finally, Plaintiff does not allege that Warden Weber is liable as a supervisor
over any prison official who violated Plaintiffs rights. As such, Warden Weber is entitled to
summary judgment on Plaintiffs medical care claims against him. See Campbell v. Warden, Civ.
No. GLR-22-1893, 2023 WL 5750284, at* 14 (D. Md. Sept. 6, 2023) (granting summary judgment
to a prison warden defendant when a Plaintiff failed to allege that the warden was "personally
involved in or otherwise aware of the decisions regarding the provision of medical care"); Collins
v. Williams, No. CV 6:18-1491-RMG-KFM, 2019 WL 4776748, at *4 (D.S.C. Aug. 16, 2019),

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report and recommendation adopted, No. 6:18-CV-01491-RMG, 2019 WL 4751718 (D.S.C. Sept.
27, 2019) (same).

B. Assistant Warden Butler
The evidence shows that Assistant Warden Butler knew about Plaintiffs DVT by way of
his responses to multiple ARP's Plaintiff filed regarding his inadequate medical treatment. ECF
5-1 at 3, 9, 14, 18, 20, 22, 25, 28, 30, 34, 35, 38, 42, 44, and 57. Howe_ver, the mere receipt or
denial of Plaintiffs grievances does not alone impose liability. Whitington v. Ortiz, 307 F. App'x
179, 193 (10th Cir. 2009) (unpublished); Larson v. Meek, 240 F. App'x 777, 780 (10th Cir. 2007)
(unpublished). Assistant Warden Butler declares that he "rel[ies] on the reports, assessments and
judgments of the contractor's trained medical staff to prepare any response [to the ARP's]." ECF
28-4 at 14- His responses to_ each of Plaintiffs ARP's that were found meritorious (or meritorious
in part) stated that while Plaintiff missed medication doses or blood monitoring on certain
occasions, the treatment had been reinstated. ECF 5-1 at 9, 18, 22, 28, 30, 38, and 42. Even
assuming the missed medication and missed blood monitoring created a serious medical need that
required immediate attention, Assistant Warden Butler, who is not a licensed physician or health
care provider and who has no authority over inmates' medical care or responsibility for monitoring
the contractor's provision of medical care, was not in a position to know about the urgency of that
medical need or take any action based solely on these ARP's and the responses prepared for him
by the medical contractor. 4 Furthermore, Plaintiff does not allege that Assistant Warden Butler

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The evidence includes copies of the minutes of monthly medical meetings, at which problems
with medication distribution and lack of follow-up to ARPs was discussed. See e.g., ECF 28-7 at
13 ("drug cards" not being used properly; follow through on ARP's is not occurring); 68 (reminder
to be specific in responses to ARP's to avoid complaints that "nothing is being done"; 69 (nurses
not properly distributing medication; ARP's not being resolved); 76 (ARP's not being resolved);
84 (medications not being renewed, including for some patients with seizure disorders; patients
are "being given a hard time" about non-compliance with medication when they are not receiving
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supervised anyone who violated his rights, knew of such violation, and failed to act. As such,
Assistant Warden Butler is entitled to summary judgment.
C. Eleventh Amendment

Under the Eleventh Amendment to the United States Constitution, a state, its agencies, and
departments are immune from citizen suits in federal court absent state consent or Congressional
action. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Claims against
state employees acting in their official capacities are also subject to Eleventh Amendment
immunity because a suit against the state actor is tantamount to a suit against the state itself.
Brandon v. Holt, 469 U.S. 464, 471-72 (1985). While the State of Maryland has waived its

sovereign immunity for certain types of cases brought in state courts, see Md. Code Ann., State
Gov't § 12-204(a), it has not waived its immunity under the Eleventh Amendment to suit in federal
court. Accordingly, Warden Weber and Assistant Warden Butler are immune from suit for actions
taken in their official capacities and such claims must be dismissed.
IV.

CONCLUSION

Warden Weber and Assistant Warden Butler's Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment is GRANTED. All claims against Defendants in their official
capacity are dismissed.

Summary judgment is otherwise granted in favor of Defendants.

Plaintiffs claim against ARP Coordinator Alicia Cartwright is dismissed for failure to state a claim
pursuant to 28 U.S.C. § 1915A(b). The Medical Defendants will be directed to file a status report

them); 85 (80% of appeals of ARP's are for no follow through). Assistant Warden Butler was
present at one meeting at which medication mismanagement and lack of ARP follow through were
addressed, ECF 28-7 at 84-86, but there is nothing in the records to suggest that Plaintiffs case
was discussed at this meeting or at any other meeting.
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within 30 days of the date of this Order suggesting a discovery deadline and dispositive motions
deadline.
A separate Order follows.

/s/
Brendan A. Hurson
United States District Judge\

March 6. 2025
Date

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