McCardell v. Joubert et al

Filing 16

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 12/20/2012. (kns, Deputy Clerk)(c/m 12/21/2012) Modified text on 12/21/2012 (kns, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JEROME MCCARDELL #335-1936
Plaintiff
v.

:
:

AVA JOUBERT, et al.,
Defendants

CIVIL ACTION NO. DKC-12-2558

:

MEMORANDUM OPINION
I. Procedural History
This 42 U.S.C. § 1983 prisoner civil rights action seeks money damages for the alleged
denial of proper medical care.1 Jerome McCardell (“McCardell”), a Maryland Division of
Correction (“DOC”) prisoner housed at Western Correctional Institution (“WCI”), claims that on
or about April 23, 2012, Dr. Ava Joubert, a physician employed by Corizon, Inc., prevented him
from obtaining specialized care for a urinary tract infection. McCardell, a paraplegic confined to
a wheelchair, states that he required referral to an “outside” specialist and the denial of such care

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McCardell complains that the alleged denial of medical care also violated his rights under the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12131 et seq. (”ADA”) and the Rehabilitation Act of 1973, 29 U.S.C. A., §
701 et seq. (“RA”). ECF No. 1 at 3-5. To establish a prima facie case under Title II of the ADA, he would have to
show that: (1) he has a disability; (2) he was either excluded from participation in or denied the benefits of some
public entity's services, programs, or activities for which he was otherwise qualified; and (3) the exclusion, denial of
benefits, or discrimination was by reason of his disability. See Constantine v. George Mason Univ., 411 F.3d 474,
498 (4th Cir.2005); Baird v. Rose, 192 F.3d 462, 467 (4th Cir.1999). States are obligated to make “reasonable
modifications” to enable the disabled person to receive the services or participate in programs or activities. 42
U.S.C. § 12131 et seq. A reasonable modification does not require the public entity to employ any and all means to
make services available to persons with disabilities. Rather, the public entity is obligated to make those
modifications that do not “fundamentally alter the nature of the service or activity of the public entity or impose an
undue burden.” Bircoll v. Miami-Dade County, 480 F.3d 1072, 1082 (11th Cir.2007). There is no showing that the
ADA or RA are implicated in the claim concerning a urology referral at issue here. Assuming McCardell is
disabled within the meaning of the ADA or RA, there is no evidence that he was discriminated against because of a
disability.
McCardell also complains the health care provider, Corizon, Inc. (“Corizon”), has breached its contract with the
Maryland Division of Correction (“DOC”) to provide prisoner medical care. ECF No. 1 at 3. McCardell is not a
party to the contract and cannot present such a claim on the DOC’s behalf.

caused severe pain.

Doctor Ava Joubert and her employer, Corizon, Inc.2 (“Medical

Defendants”) have filed a Motion for Summary Judgment or Motion to Dismiss. ECF No. 11.
McCardell has filed opposition materials, (ECF No. 13), to which Defendants have replied. ECF
No.14 . At this stage of the proceedings, a hearing is not needed to resolve the constitutional
issues presented. See Local Rule 105.6. (D. Md. 2011). For reasons which follow, Defendant
Corizon, Inc. (“Corizon”) shall be dismissed and Defendant Joubert shall submit additional
material in support of her motion for summary judgment.
II.

Standard of Review
Motion to Dismiss
In considering a motion to dismiss under Rule 12(b)(6), a court “ ‘must accept as true all

of the factual allegations contained in the complaint, and must draw all reasonable inferences
[from those facts] in favor of the plaintiff. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
637 F.3d 435, 440 (4th Cir. 2011); Nemet Chevrolet, Ltd. v. Consumerafairs.com, Inc., 591 F.3d
250, 253 (4th Cir. 2009). A complaint must set forth “enough factual matter (taken as true) to
suggest” a cognizable cause of action, “even if ... [the] actual proof of those facts is improbable
and ... recovery is very remote and unlikely.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56
(2007). A complaint that provides no more than “labels and conclusions,” or “a formulaic
recitation of the elements of a cause of action,” is insufficient under the Rule. Id. at 555. So, if
the “well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct,” the complaint has not shown that “‘the pleader is entitled to relief.’ ” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009) (citation omitted).

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Corizon, a prison health care provider under contract with the State of Maryland prior to July 1, 2012, previously
did business as Correctional Medical Services, Inc. (“CMS”).

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A motion pursuant to Rule 12(b)(6) “does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.” Edwards v. City of Goldsboro, 178 F.3d 231,
243 (4th Cir. 1999) (internal quotation marks omitted). Moreover, in resolving a Rule 12(b)(6)
motion, the court is not required to accept legal conclusions drawn from the facts. See Papasan
v. Allain, 478 U.S. 265, 286 (1986); Monroe v. City of Charlottesville, Va., 579 F.3d 380, 385–
86 (4th Cir. 2009).
Motion for Summary Judgment
Pursuant to Fed. R. Civ. P. 56(a):
A party may move for summary judgment, identifying each claim
or defense—or the part of each claim or defense—on which
summary judgment is sought. 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 court should state on the record the reasons for
granting or denying the motion.
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.@
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)). "The party opposing a properly

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supported motion for summary judgment may not rest upon mere allegations or denials of [its]
pleading, but must set forth specific facts showing that there is a genuine issue for trial."
Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 240 (4th Cir. 1988).
Eighth Amendment Right to Medical Care
In alleging a denial of his Eighth Amendment right to necessary medical care, McCardell
must prove two essential elements. First, he must satisfy the Aobjective@ component by
illustrating a serious medical condition. See Hudson v. McMillian, 503 U.S. 1, 9 (1992); Estelle
v. Gamble, 429 U.S. 97, 105 (1976); Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995); Johnson
v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998). If he proves this first element, McCardell must
then prove the second Asubjective@ component of the Eighth Amendment standard by showing
deliberate indifference on the part of Defendants. See Wilson v. Seiter, 501 U.S. 294, 303 (1991)
(holding that claims alleging inadequate medical care are subject to the "deliberate indifference"
standard outlined in Estelle, 429 U.S. at 105-06). "[D]eliberate indifference entails something
more than mere negligence [but] is satisfied by something less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result." Farmer v. Brennan, 511 U.S.
825, 835 (1994). Medical personnel "must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and [they] must also draw the
inference." Id. at 837. Medical staff are not, however, liable if they "knew the underlying facts
but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or
nonexistent." Id. at 844; see also Johnson v. Quinones, 145 F.3d at 167.
III.

Analysis
Preliminarily, the court notes that Corizon, Dr. Joubert’s employer, is named a defendant

solely under a theory of vicarious liability, otherwise known as the doctrine of respondeat
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superior. The law in the Fourth Circuit is well established that the doctrine is inapplicable to
§1983 claims involving entities such as Corizon. See Love-Lane v. Martin, 355 F. 3d 766, 782
(4th Cir. 2004) (no respondeat superior liability under '1983); Nedd v. Correctional Medical
Services, Civil Action No. JFM-92-1524 (D. Md., October 22, 1992), citing Powell v. Shopco
Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982); McIlwain v. Prince William Hospital, 774
F.Supp. 986, 990 (E.D.Va. 1991). Corizon shall be dismissed from this case.
McCardell claims he has established liability against Dr. Joubert because the acting
warden found his Administrative Remedy Procedure (“ARP”) complaint concerning the
April 23, 2012 incident was meritorious in part. ECF No. 1, Ex. 1, pp. 1-2. In that ARP,
McCardell stated that another prison physician, Dr. Renato Espina, submitted paperwork so that
McCardell could be seen by an outside urologist concerning a urinary tract infection. McCardell
claims that Joubert “deliberately interfered by filing the [consultation] paperwork [under the]
wrong name and therefore prevent[ed McCardell] from having this medical matter addressed in a
timely manner.” Id., p. 2. McCardell indicated that Joubert acted “as a means of retaliation
against [him] for …filing a lawsuit against her and Corizon…” Id. After investigation, the
acting warden, on July 23, 2012, noted that a delay had occurred but a consultation request was
“currently pending approval or denial for [the] visit.” Id., p. 1.
Dr. Joubert has submitted a declaration stating she did not interfere with McCardell’s
referral to a urologist concerning a urinary tract infection, and that she routinely advocates on
behalf of WCI patients whose physicians seek outside specialist consultations. ECF No. 11, Ex.
1, pp. 2-3. Dr. Joubert indicates that consultations require approval by an outside utilization
management contractor, and that she is not part of the utilization management process. She
further states that she is not responsible for scheduling consultation appointments once approved.

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ECF No. 11, Ex. 1, p. 3. She neither confirms nor denies any actions on her part relating to
McCardell’s April 23, 2012 consultation referral,3 and provides no documentary evidence,
including medical records, indicating whether a Corizon physician prepared a consultation
request for McCardell and if so, whether the utilization management contractor approved or
denied such request. Supporting documentation indicating when treatment was given and the
outcome of such treatment also is lacking. Absent supporting documentation, the court declines
to consider the merits of Defendant Joubert’s dispositive motion.
IV.

Conclusion
For the aforementioned reasons, Defendant Corizon shall be dismissed and Defendant

Joubert=s Motion for Summary Judgment will be held in abeyance pending submission of
additional material as noted herein. A separate order follows.

Date:

December 20, 2012

/s/
DEBORAH K. CHASANOW
United States District Judge

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Even if the court assumes that Dr. Joubert is responsible for a scheduling error, such error, without more, may not
support a claim for relief. See Sellers v. Henman, 41 F.3d 1100, 1102–03 (7th Cir.1994) (“It would be a great
mistake ... to infer ... that a series of purely negligent acts can be equated to an act of deliberate indifference.”);
Williams v. Dillman, 941 F.2d 1212 at *1 (7th Cir.1991) (table decision) (“Although we do not condone the staff's
negligence that twice caused Williams to miss his appointments, we agree that Williams has failed to show
deliberate indifference on the part of the defendants.”).

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