Brightwell v. Moultrie et al
Filing
24
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 08/19/2013. (bas, Deputy Clerk)(c/m on 8/19/2013 bca)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID BRIGHTWELL,
Plaintiff,
v.
*
MOULTRIE, et al.,
*
* CIVIL ACTION NO. DKC-12-1520
Defendants.
***
MEMORANDUM OPINION
Pending is the motion of Andrew Moultrie, M.D., John Moss, PA, and Damon Fayall1 (the
“Medical Defendants”) to Dismiss, or in the Alternative Motion for Summary Judgment. ECF
No. 18. Plaintiff has responded. ECF No. 23. Upon review of papers and exhibits filed, the court
finds an oral hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2011). For the
reasons stated below, the dispositive motion filed by the Medical Defendants will be granted.
Background
Plaintiff, by way of amended complaint, states that while incarcerated at the Jessup
Correctional Institution (“JCI”) in Jessup, Maryland, he was denied adequate medical care. In
addition to failure to provide medication to control high blood pressure (“HBP”), Plaintiff alleges
that JCI staff refuse to provide care for injuries received while he was housed at Roxbury
Correctional Institution (“RCI”).
Plaintiff states that on June 6 and 7, 2011, he informed
unidentified nurses that he did not have his blood pressure medication. ECF Nos. 1 & 8. Plaintiff
states that on June 9, 2011, his “chest nerves started jumping, bad headaches, and very bad chest
pains.” Id. Plaintiff indicates that on June 14, 2011, he filed a sick call slip indicating he did not
have his blood pressure medication. On June 15, 2011, he was taken to JCI medical department,
his blood pressure was 240/110 and he was given medication to lower his blood pressure. On
June 16, 2011, plaintiff reports his blood pressure was 148/100 because he had not received his
1
The Clerk shall be directed to correct the spelling of Defendant Damon Fayall’s name.
blood pressure medication.
Id.
Plaintiff claims that he was again without blood pressure
mediation on January 23, 2012. Id. Plaintiff states that he wrote to Damon Fayall, Hospital
Administrator on January 25, 2012, advising him that he had been without his blood pressure
medication for three days. Id.
Plaintiff states that on January 27, 2012, he was taken to Moultrie while suffering chest
pains but Moultrie refused to see him. Plaintiff was then taken to the dispensary and his blood
pressure was 150/90. Id.
Plaintiff also alleges that he submitted a sick call slip and wrote to Fayall regarding
injuries he sustained while incarcerated at RCI.2 Plaintiff states while he was provided pain
medication for injuries sustained at RCI, he did not receive anything that “could cure his medical
injuries.” Id. Additionally, he claims that from August 26, 2011 to September 12, 2011, he did
not receive his pain medication as his prescription was permitted to lapse. Id.
Plaintiff states that on October 21, 2011, he was seen by Dr. Moultrie. Plaintiff states he
advised Moultrie of all his problems and requested an MRI, but Moultrie denied the request. Id.
Plaintiff claims he was seen by PA Moss on November 29, 2011, and described all of his
medical injuries to Moss but Moss “started attempting to make excuses for the plaintiff’s injuries
to conspire and aid and abet Roxbury Correctional Medical Staff as well as the correctional
officers of Roxbury Correctional Institution attack and beating of the plaintiff on 2/5/11.” Id. He
claims that Moss advised him his left knee injury was from praying. Plaintiff states that he had no
problems with his left knee until his knee “was busted by correctional officers on 2/5/11.” Id.
2
Plaintiff’s complaints concerning events arising at RCI are not before the court in these proceedings.
2
Plaintiff states that he was seen by Moultrie on February 10, 2012, and advised that he
would be seen by an orthopedist. Plaintiff states that Moultrie began making excuses for his left
knee injury, stating that it was due to his praying. Id.
On February 13, 2012, Plaintiff again wrote to Fayall advising him that Moultrie was
making excuses for the RCI officers. Plaintiff again wrote to Fayall on March 5, 2012, advising
him that he had not received his pain medication on that date.
Plaintiff was seen by an orthopedic doctor on March 13, 2012, but only for his right wrist
and arm injury, not for his complaints of knee, back and head pain. The following day, plaintiff
states, he wrote a letter of complaint to Fayall. Id.
Plaintiff was evaluated by Moss on April 4, 2012, but Moss could not read the orthopedic
doctor’s writing. The following day, Plaintiff wrote another letter to Fayall complaining that his
medical needs were not being met. Id. Plaintiff submitted a sick call slip on April 30, 2012, and
was seen by Moss on May 3, 2012. Moss advised Plaintiff that the orthopedic doctor did not
recommend anything. Plaintiff alleges that JCI medical staff are conspiring to cover up the
assault upon him that he alleges occurred at RCI. Id.
Plaintiff further alleges that he has three infected toes and medical staff have done nothing
to treat them. Id.
Plaintiff alleges that on May 14, 2012, he filed a sick call slip advising staff that his
medication was due to expire on May 20, 2012. ECF No. 8. Plaintiff was seen by Moultrie on
May 16, 2012, who advised Plaintiff that all of his medications were being renewed. Plaintiff
submitted another sick call slip on May 24, 2012, indicating he needed his mediations renewed.
On May 27, 2012, Plaintiff states he submitted an administrative remedy request to the Warden at
JCI. On May 28, 2012, Plaintiff reports he suffered from “bad chest pain and jumping of the left
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side of his chest nerves.” Plaintiff was seen that day by unidentified medical staff who advised
him that there was no record that Moultrie had ordered his medication be renewed. Id. Plaintiff
again wrote to the Warden who responded that Plaintiff needed to be reeducated on how to take
his blood pressure medication. Id.
Lastly, Plaintiff states that on July 19, 2012, he was told to pack his property so that he
could be transferred to a single cell. Plaintiff states that “it was all a conspire [sic] effort to trick
him and the plaintiff was taken to JCI property to be transferred.” Id. Plaintiff states this was a
ruse to remove the original response from the Warden regarding his ARP and replace it with a
different response.
Plaintiff’s uncontroverted medical records demonstrate the following:
A.
Blood Pressure Medication
Plaintiff submitted a sick call slip requesting refill of his medications on May 23, 2011.
The medications were ordered on May 27, 2011. ECF No. 18, Ex. A, p. 118. An error by an
outside vendor caused Plaintiff’s medications to be shipped to a different prison. Id., p. 49.
Defendants concede that Plaintiff was without his blood pressure medication because they were
unavailable during the dates claimed in June of 2011. ECF No. 18.
Despite the lack of medication, Plaintiff did not file any additional sick call slips. On June
16, 2011, at approximately 1:45 a.m. Plaintiff complained he was not feeling well and was
examined by medical staff. Plaintiff’s blood pressure was elevated and he was given .2 mg of
clonidine to lower his pressure. Plaintiff indicated the medicine provided relief. Id., p. 51.
Plaintiff was examined later that day by Moss. Moss noted that Plaintiff’s medication had been
improperly delivered to another institution and noted the file for follow up to correct the problem.
4
The following day, Plaintiff was provided with a supply of “keep on person” medications,
including medication for HBP. Id., p. 49, 174.
On May 28, 2012, Plaintiff visited the medical unit complaining he was out of his blood
pressure medication.
Id., p. 11.
Plaintiff was re-educated concerning his medication, his
medication was continued, and he was advised to follow-up his symptoms worsened. Id. p. 8-11.
B.
Orthopedic injuries
In response to Plaintiff’s complaints of knee, back, head and neck injuries arising from the
February 5, 2011 incident at RCI, Plaintiff was seen on April 19, 2011, by medical providers. Xrays were taken. The results were negative. Id., p. 121.
Plaintiff continued complaining of pain and was again examined on May 10, 2011, July
12, 2011, and August 11, 2011. Id., p. 57, 47, and 45. Plaintiff’s subjective complaints were
recorded. No objective findings of injuries were noted other than mild left knee swelling over the
tibia, found during the May 10, 2011 examination. Plaintiff was prescribed Neurontin for pain.
The prescription expired on August 26, 2011. Id.
Plaintiff submitted a sick call slip on August 12, 2011, seeking to see the physician rather
than a physician’s assistant to discuss his desire for an MRI and assess his continuing complaints
of pain. Id., P. 111. On August 16, 2011, he was referred to the chronic care clinic and scheduled
to be seen there on September 2, 2011. A notation was made on Plaintiff’s sick call slip that his
medications were renewed on August 16, 2011 through September 5, 2011, Id. p. 111.
Plaintiff was seen on September 9, 2011 by Moultrie in the chronic care clinic. His
prescription for Neurontin for pain management was renewed. Id., p. 42-43. He was again
evaluated by Moultrie on November 1, 2011. Moultrie noted diminished right hand grip and
limited rotation of the cervical spine as well as limited extension of the spine.
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Plaintiff’s
medications were continued.
Moultrie ruled out an MRI pending a better neurological
examination and x-rays. Id., p. 36-37. The x-rays of Plaintiff’s cervical spine, taken that same
day, revealed age-related degenerative changes. Id., p. 38.
Additional x-rays of Plaintiff’s wrist, knee and shoulder were taken on November 21,
2011. The results were negative. Id., p. 35. Plaintiff was referred for an orthopedic consultation
concerning his right forearm pain in February of 2012. Id., p. 23. The results of the consult were
not provided to the court.
On June 13, 2012, Plaintiff was again evaluated by Moultrie in the chronic care clinic.
Notes reflect that Plaintiff’s Neurontin dose was increased, he was directed to follow the
previously prescribed exercise program, and was educated and reassured regarding his conditions.
Moultrie reviewed Plaintiff’s diagnostic study results and medications with him. Id., p. 3.
Throughout the period at issue, Plaintiff was prescribed pain medication including
Neurontin, Aspirin, and Ibuprofen. Id., p. 126-183.
C.
Infected toes
On April 9, 2012, Plaintiff submitted a sick call slip asking that his toenails be clipped and
complaining of infected toenails. He was scheduled to see Moss on April 11, 2012, but did not
report for his appointment. Id. p. 79. No other complaints are found in sick call slips regarding
Plaintiff’s toes. Id. Ex. A.
Standard of Review
A.
Motion to Dismiss
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the
sufficiency of the plaintiff's complaint.
See Edwards v. City of Goldsboro, 178 F.3d 231, 243
(4th Cir. 1999). The dismissal for failure to state a claim upon which relief may be granted does
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not require defendant to establish Abeyond doubt@ that plaintiff can prove no set of facts in support
of his claim which would entitle him to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
561 (2007). Once a claim has been stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint. Id. at 563. The court need not, however,
accept unsupported legal allegations, see Revene v. Charles County Comm'rs, 882 F.2d 870, 873
(4th Cir. 1989), legal conclusions couched as factual allegations, see Papasan v. Allain, 478 U.S.
265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events, see
United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
B.
Motion for Summary Judgment
Summary Judgment is governed by Fed. R. Civ. P. 56(a) which provides that:
The court shall grant summary judgment 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.
The Supreme Court has clarified that this does not mean that any factual dispute will
defeat the motion:
By its very terms, this standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247-48 (1986) (emphasis in original).
AThe party opposing a properly supported motion for summary judgment >may not rest
upon the mere allegations or denials of [his] pleadings,= but rather must >set forth specific facts
showing that there is a genuine issue for trial.=@ Bouchat v. Baltimore Ravens Football Club, Inc.,
346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The
court should Aview the evidence in the light most favorable to . . . the nonmovant, and draw all
inferences in her favor without weighing the evidence or assessing the witness= credibility.@
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Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court
must, however, also abide by the Aaffirmative obligation of the trial judge to prevent factually
unsupported claims and defenses from proceeding to trial.@ Bouchat, 346 F.3d at 526 (internal
quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and
citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
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 those
issues on which the nonmoving party has the burden of proof, it is his or her responsibility to
confront the summary judgment motion with an affidavit or other similar evidence showing that
there is a genuine issue for trial.
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Discussion
A.
Medical Care
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 were 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). 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. See Farmer, 511 U.S. at 839B 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.=@
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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.
See 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 v. Harris, 240 F. 3d 383, 390 (4th Cir.
2000); 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).
A[A]ny negligence or malpractice on the part of . . . doctors in missing [a] diagnosis does
not, by itself, support an inference of deliberate indifference.@ Johnson v. Quinones 145 F. 3d
164, 166 (4th Cir. 1998). Without evidence that a medical provider linked presence of symptoms
with a diagnosis of a serious medical condition, the subjective knowledge required for Eighth
Amendment liability is not present. Id. at 169 (actions inconsistent with an effort to hide a serious
medical condition refutes presence of doctor=s subjective knowledge).
Plaintiff’s allegations that he was not provided necessary medical treatment for
hypertension, orthopedic injuries, and a toe infection are belied by the record. Plaintiff was
evaluated in a timely manner by medical providers as to his claims regarding hypertension and
orthopedic injuries and was provided medication to treat each of his complaints. Plaintiff’s
hypertension was managed with medication.
Due to an outside vendor error Plaintiff’s
medication was shipped to the wrong facility. When Defendants became aware of the mix-up they
acted quickly to correct the error. The court need not determine whether suffering from untreated
high blood pressure for a brief period of time constitutes a serious medical need, as the court finds
that Defendants were not deliberately indifferent. To the contrary, when Plaintiff presented with
symptoms of high blood pressure he was provided treatment and when the error concerning the
10
delivery of his medication was discovered, it was immediately corrected.
Plaintiff’s claim
regarding denial of medication to treat his HBP states nothing more than, at most, a claim of
negligence on the part of the unnamed vendor.
As to Plaintiff’s complaints regarding injuries to his knee, neck and head, the record
demonstrates that he was repeatedly evaluated, x-rays were taken, and Plaintiff was provided
analgesic medication. He was referred for an orthopedic consultation regarding complaints about
wrist and forearm pain. His complaints were treated in a conservative manner.
In regard to Plaintiff’s complaints of untreated toe infection, the record shows that
Plaintiff complained on only one occasion. For reasons unknown, he did not appear for his
scheduled sick call appointment and thereafter voiced no further complaints. It cannot be said
that Defendants were deliberately indifferent to a serious medical need where, as here, Plaintiff
did not alert them to the continuing nature of the need.
There is no evidence that any further treatment was deemed necessary as to any of
Plaintiff’s complaints. Mere disagreement with a course of treatment does not provide the
framework for a federal civil rights complaint. See Russell v. Sheffer, 528 F.2d 318 (4th Cir.
1975). Plaintiff, the non-moving party, must establish the existence of a genuine issue of material
fact by presenting evidence on which a fact-finder could reasonably find in his favor. Plaintiff
has failed to submit any evidence to support his claim, or to put the material facts of this case in
dispute. See generally Gray v. Spillman, 925 F.2d 90 (4th Cir. 1991). Although the non-moving
party may rely upon a verified complaint when allegations therein are based on personal
knowledge, see Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991), Plaintiff's Complaint is not
verified.
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In granting summary judgment to Defendants the court does not imply that Plaintiff is not
entitled to medical treatment for his serious conditions. The right to treatment, however, is
“limited to that which may be provided upon a reasonable cost and time basis and the essential
test is one of medical necessity and not simply that which may be considered merely desirable.”
Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir.1977) (emphasis added).
“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 (3rd Cir. 1970). There are no exceptional
circumstances in this case. The Plaintiff has been evaluated repeatedly and provided appropriate
treatment.
B.
Conspiracy
Plaintiff claims that all Defendants conspired together to violate his constitutional rights.
To establish a civil conspiracy under § 1983, Plaintiff must present evidence that Defendants
acted jointly in concert and that some overt act was done in furtherance of the conspiracy, which
resulted in deprivation of a constitutional right. See Hinkle v. City of Clarksburg, 81 F.3d 416,
421 (4th Cir.1996). An essential element for a claim of conspiracy to deprive Plaintiff of a
constitutional right is an agreement to do so among the alleged co-conspirators. See Ballinger v.
N.C. Agric. Extension Serv., 815 F.2d 1001, 1006-07 (4th Cir.1987). Without an agreement, the
independent acts of two or more wrongdoers do not amount to a conspiracy. See Murdaugh
Volkswagon v. First Nat'l Bank, 639 F.2d 1073, 1075-76 (4th Cir.1981). Plaintiff must allege
facts establishing that Defendants shared a “unity of purpose or a common design” to injure him.
See Am. Tobacco Co. v. United States, 328 U.S. 781, 809-10 (1946).
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Plaintiff’s claim of conspiracy is vague and conclusory. He alleges Defendants conspired
to “cover up” the actions of correctional staff and medical personnel at RCI. Plaintiff’s medical
records, demonstrate that at each encounter with medical staff his injuries were documented as
were his claims that his injuries arose as a result of the alleged assault by correctional staff.
Conclusory allegations of a conspiracy are insufficient to state a claim. See Boddie v. Schnieder,
105 F.3d 857, 862 (2nd Cir. 1997) (unsupported claim of conspiracy to issue false disciplinary
reports fails to state claim); Manis v. Sterling, 862 F.2d 679, 681 (8th Cir. 1988) (AAllegations of
conspiracy . . . must be pled with sufficient specificity and factual support to suggest a meeting of
the minds.@) (quotation omitted); Langworthy v. Dean, 37 F. Supp.2d 417, 424-25 (D. Md. 1999).
Conclusion
In light of the foregoing, Defendants are entitled to summary judgment. A separate Order
follows.
Date:
August 19, 2013
/s/
DEBORAH K. CHASANOW
United States District Judge
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