Brown v. Prince Georges Hospital et al

Filing 50

MEMORANDUM OPINION. Signed by Judge Roger W Titus on 6/9/2011. (c/m 6/9/2011 ns)(ns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

KEISHA L. BROWN,
Plaintiff,
v.
PRINCE GEORGE’S HOSPITAL
ET AL.,
Defendants.

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Case No.: RWT 09cv295

MEMORANDUM OPINION
Defendants Darryl Atwell and Pamela Durning move for summary judgment as to all
counts set forth in Plaintiff Keisha L. Brown’s complaint. Defendants Beverly Calloway and
Dimensions Health Care System d/b/a Prince George’s Hospital (“Dimensions”) move for
summary judgment as to Plaintiff’s remaining defamation allegations occurring after February 8,
2008. Plaintiff moves the Court to subpoena various employment records and to grant her
permission to submit documents electronically to the Court. For the reasons set forth below, the
Court will grant Defendants’ motions and deny Plaintiff’s motions.
FACTS
Plaintiff is a registered nurse and currently lives in Ellenwood, Georgia. Brown Dep. 8:9,
11:3, Aug. 31, 2010. Previously, she lived in Laurel, Maryland and was employed by Prince
George’s Hospital (“PGH”) as a nurse. Brown Dep. 9:2-12. During this time, Defendants also
worked at the hospital; Durning and Atwell were anesthesiologists and Calloway served as the
PGH Operating Room Director. In August of 2006, while working at PGH, Plaintiff filed an

EEOC charge against the defendants in this suit, as well as other PGH employees, largely
alleging that Defendants were harassing her and circulating offensive rumors about her
throughout the hospital. See Defs.’ Mem. in Supp. of Mot. Summ. J. Ex. 6, at 1-2. The
hospital’s Director of Employee and Union Relations investigated Plaintiff’s complaint,
interviewed all relevant persons (including Defendants), and determined there was no merit to
any of Brown’s allegations. See id. at 7-8. On December 29, 2006, Plaintiff was terminated
from her position at PGH for extended absenteeism. See Defs.’ Mem. in Supp. of Mot. Summ. J.
Ex. 3. Shortly thereafter, she moved to Georgia and began working in various healthcare
facilities through several nursing registries. Brown Dep. 11:9-12:7.
Plaintiff commenced this suit in February of 2009, alleging that Defendants have
continually harassed her, made defamatory statements about her, and disseminated defamatory
writings to her co-workers and neighbors since her employment at PGH and throughout her
employment with various hospitals in Georgia. Specifically, she contends that between June 15,
2007 and January 30, 2009, Defendants engaged in false communications with her new
employers, co-workers, potential employers, and neighbors via faxes, writings, and telephone
calls. Compl. ¶¶ 6, 7, 11, 12. She asserts that Defendants informed these persons that she stole
hospital property and medications, had contracted AIDS and other sexually transmitted diseases,
practiced voodoo, and worked as a prostitute. Id. She also alleges that Durning and Atwell
obtained her medical records and disseminated her confidential information to others. Compl. ¶¶
9,10. Defendants deny all of these allegations.
PROCEDURAL HISTORY
Plaintiff, proceeding pro se, filed her complaint on February 9, 2009 seeking damages for
defamation and violations of the Health Insurance Portability and Accountability Act of 1996

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(“HIPAA”) and the Federal Privacy Act of 1974 (“Privacy Act”). Compl. ¶¶ 9,10, 13-18. On
April 13, 2009, Dimensions and Calloway moved to dismiss portions of Plaintiff’s complaint.
ECF No. 8. The Court granted the motion, dismissing Plaintiff’s defamation claims pertaining to
communications occurring prior to February 8, 2008 (as barred by the applicable statute of
limitations), as well as Plaintiff’s HIPAA and Privacy Act claims. See Brown v. Prince George’s
Hospital, 2009 U.S. Dist. LEXIS 103008, at *4-5 (D. Md. Nov. 4, 2009). On April 28, 2010, the
Court issued a Scheduling Order requiring that discovery be completed by September 10, 2010.
ECF No. 32.
The day that discovery was to be completed, Plaintiff filed a Motion for Issuance of
Subpoenas to secure Defendants’ and her own employment records, ECF No. 35, which
Defendants opposed, ECF Nos. 38, 41. On September 13, 2010, Plaintiff requested that the
Court permit her to file documents electronically with the Court. ECF No. 37. On October 29,
2010, Defendants Dimensions and Calloway moved for summary judgment on Plaintiff’s
remaining defamation claims occurring after February 8, 2009, see ECF No. 43, and Defendants
Atwell and During moved for summary judgment as to the entirety of Plaintiff’s complaint, see
ECF No. 42. The issues are fully briefed and the Court finds that no hearing is necessary.
PLAINTIFF’S MOTION FOR ISSUANCE OF SUBPOENAS
In Plaintiff’s Motion for Issuance of Subpoenas, she requests that the Court subpoena her
own employment records from a dozen different hospitals located in several different states
(including six hospitals in Georgia, one in Virginia, one in Colorado, and one in Pennsylvania),
as well as the employment records of Defendants Durning, Atwell, and Calloway (including two
hospitals located in Allentown, PA and Cleveland, OH). See Pl.’s Mot. for Issuance of
Subpoenas, at 1-3. Defendants oppose the request as untimely, ECF Nos. 38, 41. See

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Scheduling Order, ECF No. 32. The Court will deny Plaintiff’s motion for the reasons that
follow.
First, Plaintiff’s motion is largely moot or irrelevant. Plaintiff’s request that the Court
subpoena her own employment records is moot because Defendants Calloway and Dimensions
provided Plaintiff with a copy of these records on September 28, 2010 along with their
opposition to her motion.1 See Defs.’ Opp’n to Pl.’s Mot. for Subpoena, at 5. In addition, the
Court fails to see any relevance of Defendants Durning, Atwell, and Calloway’s employment
records to the defamation claim at issue here, rendering them outside the scope of discoverable
information. See Fed. R. Civ. P. 26(b)(1).
Second, Plaintiff’s motion does not meet even the most basic requirements for a
subpoena under the Federal Rules of Civil Procedure. For example, this Court may not issue
subpoenas to any of the hospitals located in Georgia, Ohio, Pennsylvania, Colorado, or Virginia,
as they are located outside of this Court’s jurisdiction. See Fed R. Civ. P. 45(a)(2)(C). Moreover,
Plaintiff’s motion fails to state the court from which it would be issued and does not command
specific persons to produce the requested documents at a specified time and place. See Fed. R.
Civ. P. 45(a)(1)(A).
Third, Plaintiff has not met the requirements for modifying a scheduling order under Rule
16(b)(4) of the Federal Rules of Civil Procedure. Because Plaintiff filed her Motion for Issuance
of Subpoenas on the date that discovery closed (as specified by the Court’s Scheduling Order),
the relief sought would necessarily require an extension of the September 10, 2010 discovery
deadline. Rule 16 allows modifications to scheduling orders only for good cause and with the

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Defendants Dimensions and Calloway indicate that they in fact obtained Plaintiff’s employment records during the
course of discovery, informed Plaintiff of these documents, yet did not receive a request from her for copies of these
records. See Defs.’ Opp’n to Pl.’s Mot. for Subpoena, at 4-5.

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judge’s consent. Fed. R. Civ. P. 16(b)(4). Here, Plaintiff has not even attempted to show good
cause for an extension, nor has she sought or obtained consent from the Court.
Fourth, Plaintiff’s motion appears to be an improper attempt to remedy her failure to
serve timely document requests on Defendants during the designated discovery period. The
Court’s Scheduling Order specifically states that any requests must be served sufficiently early to
allow the opposing party to respond prior to the discovery deadline. ECF No. 32. Although
discovery began more than four months before Plaintiff filed the instant motion, she waited to
serve her first set of document requests just one day before the close of discovery. See Defs.’
Opp’n to Pl.’s Mot. for Subpoena, at 2. Defendants Calloway and Dimensions promptly notified
Plaintiff that her request was untimely and Plaintiff responded by filing the pending Motion for
Issuance of Subpoenas one day later. As stated above, Plaintiff has not shown good cause for
her tardiness and the Court declines to allow her to circumvent the Scheduling Order by
extending discovery in this manner.
Accordingly, the Court will deny Plaintiff’s Motion for Issuance of Subpoenas.
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
I.

Standard of Review

Summary judgment is appropriate where there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir.
2006); Fed. R. Civ. P. 56. In doing so, the Court must ask whether the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Summary judgment is properly granted where a claim rests on mere
speculation and conjecture. Deans v. CSX Trans. Inc., 152 F.3d 326, 330 (4th Cir. 1998). “The

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nonmoving party…cannot create a genuine issue 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).
“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by citing to particular parts of materials in the record . . . or showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “If a party
fails to properly support an assertion of fact or fails to properly address another party’s assertion
of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for the purposes
of the motion” or “grant summary judgment if the motion and supporting materials — including
the facts considered undisputed — show that the movant is entitled to it.” Fed. R. Civ. P. 56(e).
II.

Analysis

Defendants are entitled to summary judgment as to all of Plaintiff’s counts against them.
First, Plaintiff does not state a cause of action under HIPAA or the Privacy Act. Second, the
defamation claims arising out of communications prior to February 8, 2008 are barred by the
one-year statute of limitations for defamation under Maryland law. Finally, Plaintiff’s complete
lack of admissible evidence to support her remaining defamation allegations makes clear that no
reasonable jury could find for her.
A. HIPAA and the Privacy Act
Provisions of HIPAA may only be enforced by the Secretary of Health and Human
Services. See 42 U.S.C. § 1320d-5. As Plaintiff is a private actor, she may not allege a violation
of the Act. Provisions of the Privacy Act apply only to federal agencies. See 5 U.S.C. § 552(a).
Defendants Atwell and During are doctors, and thus not subject to the Act. Accordingly, the

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Court grants Defendants Atwell and Durning’s Motion for Summary Judgment as to these counts
of Plaintiff’s complaint.2
B. Defamation Allegations Prior to February 8, 2008
Plaintiff’s defamation allegations that refer to communications made by Atwell and
Durning prior to February 8, 2008 are barred by the statute of limitations. Under Maryland law,
an action for defamation must be filed within one year from the date it accrues. See Md. Code
Ann., Cts & Jud. Proc. § 5-105; see also Hickey v. St. Martin’s Press, Inc., 978 F. Supp. 230, 235
(D. Md. 1997). Accordingly, any defamation claim arising from events occurring prior to one
year from the time of filing are barred.
Here, Plaintiff alleges Defendants Atwell and Durning disseminated defamatory writings
and made slanderous statements beginning on June 15, 2007 and continuing through January 30,
2009. As Plaintiff filed her complaint on February 9, 2009, all portions of her claim arising out
of communications made before February 8, 2008 must be dismissed. As such, the Court will
grant Defendants’ Atwell and Durning’s Motion for Summary Judgment as to all defamation
claims occurring before February 8, 2008.3
C. Defamation Allegations Post-February 8, 2008
The Court will grant Defendants’ Motions for Summary Judgment as to any alleged libel
and slander occurring after February 8, 2008 because Plaintiff fails to sufficiently support at least
two of the required elements on which she bears the burden of proof. Summary judgment must
be granted against a party who “fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of proof at
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The Court previously dismissed Plaintiff’s HIPAA and Privacy Act claims as to Defendants Calloway and
Dimensions. See Brown v. Prince George’s Hospital, 2009 U.S. Dist. LEXIS 103008, at *4-5 (D. Md. Nov. 4,
2009).
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The Court previously dismissed Plaintiff’s defamation claims arising from communications prior to February 8,
2008 as to Defendants Calloway and Dimensions. See Brown, 2009 U.S. Dist. LEXIS 103008, at *3-4.

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trial.” Celotex Corp, 477 U.S. at 322. When opposing summary judgment, a plaintiff must
support her position with “evidence on which the jury could reasonably find for [her].”
Anderson, 477 U.S. at 252. In assessing a summary judgment motion, a court may consider only
evidence that would be admissible at trial. Kennedy v. Joy Technologies Inc., 269 Fed. Appx.
302, 308 (4th Cir. 2008).
Defamation requires a showing of four elements: (1) that the defendant made a
defamatory communication to a third person, (2) that was false, (3) that the defendant was at
fault in communicating the statement, and (4) that the plaintiff suffered harm. Habash v. City of
Salisbury, Md., 618 F. Supp. 2d 434, 443 (D. Md. 2009). A defamatory statement “tends to
expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the
community from having a good opinion of, or associating with, that person.” Offen v. Brenner,
402 Md. 191, 198-99 (2007). Both the record and Plaintiff’s response in opposition to summary
judgment make clear that Plaintiff fails to sufficiently support at least two of the required
elements— (1) that any of the defendants made a defamatory communication to a third person
and (2) that she suffered harm as a result.
1. Plaintiff fails to sufficiently show that Defendants made defamatory
communications to third persons.

Plaintiff contends that Defendants Calloway, Durning, and Atwell wrote and distributed
defamatory statements about her to her co-workers and employers in the various hospital in
which she worked in Georgia. However, she has failed to produce any admissible evidence of
such writings.
Admissible evidence must be authenticated. See United States v. Branch, 970 F.2d 1368,
1370 (4th Cir. 1992); Fed. R. Evid. 901(a). Authentication or identification is satisfied “by

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evidence to support a finding that the matter in question is what its proponent claims.” Fed. R.
Evid. 901(a). With regard to Calloway, Plaintiff has only offered one exhibit that purports to be
a copy of one of the many alleged defamatory writings that she disseminated. Plaintiff provided
this exhibit in her Response to Defendants’ Motions for Summary Judgment on October 29,
2010, several weeks after the September 10th discovery deadline.
Plaintiff contends that this exhibit is a copy of a letter that was written, signed, and faxed
to Northside Hospital by Calloway. See Pl.’s Resp. in Opp’n to Defs.’ Mot. Summ. J., at 1.
However, as Plaintiff has not authenticated this document in any way, it does not constitute
admissible evidence. See Fed. R. Evid. 901(a). Rather, Plaintiff merely contends in her response
that she “sp[oke] to employees…regarding the fax” and was “told by several employees that they
saw the fax.” Id. As Defendants Calloway and Dimensions point out in their Reply to Plaintiff’s
Response, this document is not authenticated by any affidavit from any recipient of the purported
fax, nor does it contain a date or any fax information that would indicate from where it was sent
or to whom it was sent. See Defs.’ Reply to Pl.’s Resp., at 8-9.
As far as Defendants Durning and Atwell, Plaintiff fails to offer any evidence of the
defamatory writings that she claims were written and faxed to others. See Brown Dep. 192:1122; 212:9-213:21. Although Plaintiff repeatedly asserts in her deposition that various hospital
staff members have seen such writings, she has yet to provide any testimony from any third
person having received or read any statements written by Durning or Atwell. Moreover, in her
deposition, Plaintiff could not identify any persons who told her they had received faxes from
Defendants. See Brown Dep. 212:22-213:2.
Plaintiff also fails to provide any admissible evidence of the verbal defamatory
statements that Defendants allegedly made. Under Rule 602 of the Federal Rules of Evidence, a

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witness must have personal knowledge of a matter to which she testifies. Here, Plaintiff’s own
deposition reveals that she has not personally heard any of the statements that she asserts were
made. See, e.g., Brown Dep. 114:2-11 (stating she has not seen or heard from Calloway since
December 2006); 177:20-21 (stating that she did not hear Atwell’s alleged defamatory
statement). Rather, with regard to all three defendants, Plaintiff alleges that she learned of the
statements when she “overheard” various conversations among different hospital staff members.
Brown Dep. 89:7-14; 90:5-11; 154: 4-7; 177:16-21. Plaintiff’s own assertions that she overheard
various hospital staff members discussing Defendants’ alleged defamatory statements about her
cannot constitute evidence in support of her claim as her testimony is inadmissible hearsay. See
Fed. R. Evid. 801-802. The Court cannot consider hearsay evidence on a summary judgment
motion. Maryland Highways Contractors Ass’n, Inc. v. State of Maryland, 933 F.2d 1246, 1251
(4th Cir. 1991).
As Plaintiff does not have personal knowledge of the alleged statements made by
Defendants, has not provided testimony from any person hearing such statements, and has not
provided admissible evidence of defamatory writings, she fails to present any evidence in
support of her defamation claim. As such, she fails to create a genuine issue of material fact for
trial, warranting summary judgment for Defendants.
2. Plaintiff fails to establish that she suffered harm.
Plaintiff also fails to sufficiently demonstrate that she has suffered either mental harm or
pecuniary losses, as she alleges. Where a plaintiff does not demonstrate that defendants made
defamatory statements with malice, actual damages must be proved. Shapiro v. Massengill, 661
A.2d 202, 217 (Md. Ct. Spec. App. 1995). In contrast, where a plaintiff demonstrates
constitutional malice, damages may be awarded even without proof of harm. Id. Here, as

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Plaintiff fails to demonstrate malice on the part of Defendants, she must prove actual damages.
See id.
A plaintiff must do so by providing more than mere conclusory statements to establish
that she suffered harm. See Morris v. Nicholson, 2010 U.S. Dist. LEXIS 83909, at *25 (D. Md.
Aug. 14, 2010) (granting summary judgment to defendants because alleging “vague health
concerns” and “purported increases in workload” does not constitute sufficient evidence that
plaintiff suffered damages). Here, Plaintiff fails to allege harm in sufficient detail.
First, Plaintiff fails to present any evidence in support of her contentions that she suffers
from anxiety and insomnia as a result of Defendants’ alleged defamatory communications. See
Pl.’s Resp. in Opp. to Defs.’ Mot. Summ. J., 6-7. Although she contends in her Response to
Defendants’ Motion for Summary Judgment that she was prescribed sleeping pills and antianxiety medication to treat symptoms caused by Defendants’ actions, see ECF No. 46, Plaintiff
fails to present any evidence supporting these assertions. The only document Plaintiff has
presented, a note written and signed by a Dr. Gary Emmanuel stating that Plaintiff saw twice him
for “stress,” is irrelevant as it states that these visits took place in December of 2006. This date
is well outside of the relevant time period designated by Maryland’s one-year statute of
limitations for defamation.
Second, Plaintiff fails to explain how she has suffered $340,000 in back pay and $1
million in future losses. See Pl.’s Resp. in Opp. to Defs.’ Mot. Summ. J., at 7. In her response,
Plaintiff merely wrote that she calculated this figure through “online research” at an EEOC
website. Id. However, as Defendants Atwell and Durning point out, Plaintiff has been almost
continuously employed since she was terminated from PGH in 2006. See Defs.’ Mem. in Supp.

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of Mot. Summ. J., at 27. Moreover, Plaintiff was unable to identify any positions for which she
was not selected as a result of the alleged defamation. See Brown Dep. 33:14-34:3.
In sum, Plaintiff’s unsupported and conclusory statements as to her damages cannot survive
summary judgment as she fails to create a genuine issue of material fact for trial.
Because the Court concludes that Defendants are entitled to summary judgment on all
claims, Plaintiff’s Motion for Permission to Submit Electronic Documents will be denied as
moot.
A separate Order follows.

Date: June 9, 2011

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

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