Mitchell v. Catherine et al

Filing 18

MEMORANDUM. Signed by Judge Alexander Williams, Jr on 1/17/2012. (c/m 1/17/12 rs) (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ROLAND MITCHELL

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Plaintiff

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v.

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NURSE CATHERINE,
RN TESSEMA, and
CORRECTIONAL MEDICAL SERVICE

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Defendants

Civil Action No. AW-11-473

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MEMORANDUM

I.

Procedural History
This 42 U.S.C. § 1983 civil rights Complaint was received for filing on February 18,

2011.

In his Complaint Plaintiff questions the dosage of Percocet medication he received from

Nurses Catherine and Tessema on the morning of February 2, 2011. He claims that he had an
immediate reaction to the amount of medication, e.g. pain, stomach cramps, headaches,
sweating, and vomiting. Plaintiff initially opines that this reaction occurred because he is a
dialysis patient, but affirms that he found out later that day that he had been given an extra dose
of Percocet by Nurse Tessema. He further contends that the following day, February 3, 2011, he
was called to the medical department for his medication and was falsely told by Nurse Tessema
that a Physician’s Assistant had ordered him pain medication. Plaintiff states that Tessema led
him to believe that the medication was Percocet, but it was in reality Tylenol, a medication
which is contraindicated given his “bad” liver and kidneys. In sum, he alleges that he was given
an excessive amount of Percocet one day and the wrong medication the next day. Plaintiff seeks
one million dollars in compensatory and punitive damages.

II.

Pending Motions
Currently before the Court is the unopposed Motion to Dismiss or, in the Alternative, for

Summary Judgment filed by Defendants Wondaye Dessema, Katherine Jalloh,1 and Correctional
Medical Services, Incorporated. (“CMS”).2 ECF No. 16.

The undersigned has examined the

medical record and finds that no hearing is necessary. See Local Rule 105.6. (D. Md. July,
2011). For reasons to follow, Defendants= pleading will be granted.
III.

Standard of Review
Summary judgment is appropriate under Rule 56(a) of the Federal Rules of Civil

Procedure when there is no genuine dispute as to any material fact, and the moving party is
plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986) the Supreme Court explained that in considering a motion for summary
judgment, the Ajudge=s function is not himself to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.@

A dispute about a

material fact is genuine Aif the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.@ Id. at 248. Thus, Athe judge must ask himself not whether he thinks the
evidence unmistakably favors one side or the other but whether a fair-minded jury could return a
verdict for the [nonmoving party] on the evidence presented.@ Id. at 252.
The moving party bears the burden of showing that there is no genuine issue as to any
material fact. No genuine issue of material fact exists if the nonmoving party fails to make a
sufficient showing on an essential element of his or her case as to which he or she would have
the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, on
1

The names of Nurses Wondaye Dessema and Katherine Jalloh shall be substituted for that of Defendants Nurses
“Catherine” and Tessema.

2

On November 14, 2011, the Clerk mailed Plaintiff notice of Defendants’ filing pursuant to the dictates of
Roseboro v. Garrison, 528 F.2d. 309 (4th Cir. 1975). ECF No. 17. Plaintiff has not filed an opposition response.

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those issues on which the nonmoving party has the burden of proof, it is his responsibility to
confront the summary judgment motion with an affidavit or other similar evidence showing that
there is a genuine issue for trial.
IV.

Discussion
1.

Facts

It is undisputed that Plaintiff is a forty-four year old male with a history of diabetes and
coronary artery disease. The record, taken from Defendants’ exhibits, shows that he received
dialysis on February 1 and 3, 2011, and complained of severe back pain on February 3, 2011. A
prescription for an additional tablet of Percocet was ordered by Dr. Sisay. ECF No. 16 at Ex. 1.
There is no record of Plaintiff complaining that he received excessive Percocet or was wrongly
provided Tylenol or that he experienced pain, sweats, dizziness, or vomitus from the Percocet.
2.

Legal Analysis

The Eighth Amendment prohibits Aunnecessary and wanton infliction of pain@ by virtue of
its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173 (1976).
AScrutiny 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). In order to state an Eighth Amendment claim
for denial 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). Deliberate indifference to a serious medical need requires
proof that, objectively, the prisoner plaintiff was suffering from a serious medical need and that,
subjectively, the prison staff was aware of the need for medical attention but failed to either
provide it or ensure the needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837
(1994).
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As noted above, 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). Proof of an objectively serious medical condition, however,
does not end the inquiry.
The subjective component requires Asubjective recklessness@ in the face of the serious
medical condition.

Farmer, 511 U.S. at 839-40.

ATrue subjective recklessness requires

knowledge both of the general risk, and also that the conduct is inappropriate in light of that risk.@
Rich v. Bruce, 129 F. 3d 336, 340 n. 2 (4th Cir. 1997). AActual 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 Correctional Center, 58 F. 3d 101, 105 (4th Cir. 1995), quoting Farmer, 511 U.S.
at 844.

If the requisite subjective knowledge is established, an official may avoid liability Aif

[he] responded reasonably to the risk, even if the harm was not ultimately averted.@ Farmer, 511
U.S. at 844. Reasonableness of the actions taken must be judged in light of the risk the defendant
actually knew at the time. Brown 240 F. 3d at 390; citing Liebe v. Norton, 157 F. 3d 574, 577 (8th
Cir. 1998) (focus must be on precautions actually taken in light of suicide risk, not those that
could have been taken).
It remains undisputed that Plaintiff was receiving dialysis, but there is no record that he
received excessive Percocet or Tylenol and experienced a reaction from same. The record shows
that he received an extra dosage of Percocet due to his subjective complaint of extreme back
pain.3 This order was issued on February 3, 2011, by Dr. Sisay, not Nurse Dessema. In the
absence of opposition materials, the Court finds no Eighth Amendment violation.

3

Even assuming every allegation in the verified complaint is true, Plaintiff has failed to state a §1983 claim for
medical indifference. Plaintiff's claims center on Nurse Dessema giving him excess Percocet and Tylenol, each on

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V. Conclusion
For the aforementioned reasons, Defendants= Motions shall be granted.4 A separate Order
follows.

Date: January 17, 2012

/s/
Alexander Williams Jr.
United States District Judge

one occasion. Plaintiff does not allege Nurse Dessema did this on purpose. Thus, assuming all allegations in the
complaint are true, at best, he has alleged a claim for medical malpractice which is not cognizable in a §1983 action.
See Estelle, 429 U.S. at 103. Medical malpractice does not become an Eighth Amendment violation merely because
Plaintiff is a prisoner. Id. at 106.
4

To the extent the Complaint names Correctional Medical Services, Incorporated (ACMS@) in the alleged denial of
medical care solely upon vicarious liability, the law in this circuit is clear. The doctrine of respondeat superior
does not apply to 42 U.S.C. § 1983 claims. See Austin v. Paramount Parks, Inc., 195 F.3d 715, 727-28 (4th Cir.
1999); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982). CMS’s Motion to Dismiss shall be granted.

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