Patterson v. Gladhill et al

Filing 45

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 8/27/2013. (c/m 8/28/13 rs) (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BRODERICK PATTERSON,
Plaintiff,
v.

*

GLADHILL, et al.,

*

*

CIVIL ACTION NO. DKC-12-2793

Defendants.
***
MEMORANDUM OPINION
Pending is the motion of Corizon, Inc.1 and Ginny Hendershot (the “Medical Defendants”)
to Dismiss, or in the Alternative Motion for Summary Judgment. ECF No. 26. Plaintiff has
responded (ECF No. 35) and Medical Defendants have replied. ECF No. 37.

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 states that while incarcerated at the Maryland Correctional InstitutionHagerstown, on September 24, 2011, his finger was amputated when it was caught in a steel
grill.2 He was taken to a local hospital emergency room where Dr. Herrera reattached the finger
and prescribed pain medication and daily dressing changes. Plaintiff claims that from May 27June 6 and June 8-10, 2012, he was denied daily dressing changes by Corizon employees.
Plaintiff further alleges that on those same dates, Nurse Ginny Hendershot was responsible for
making sure the recommendations of the plastic surgeon for daily dressing changes were

1

2

The Clerk shall amend the docket to reflect the correct spelling of Defendant Corizon, Inc.’s name.

Plaintiff’s complaint against correctional employees for the injury to his finger and alleged interference and
denial of prescribed medical care was previously dismissed without prejudice. ECF No. 43. Plaintiff’s Motion for
Voluntary Dismissal (ECF No. 34) shall be denied as to the Medical Defendants, Plaintiff having indicated his desire
to proceed with these claims. ECF No. 44.

followed. Plaintiff alleges Hendershot breached her responsibility to Plaintiff by denying him the
prescribed medical treatment. Plaintiff states that Hendershot’s breach of duty caused excessive
and unnecessary pain and suffering as a result of the dirty wound. He states that he met with Dr.
Thompson on June 11, 2012, and Nurse Heather changed the dressing on that date. ECF No. 1.
Plaintiff also states that on June 11, 2012, he met with correctional employees concerning
the many complaints he had filed detailing the interference of correctional employees with his
prescribed medical treatment. Plaintiff states that at that time Captain Manuel produced a letter
signed by Ginny Hendershot which indicated the order for daily dressing changes had been
discontinued. Plaintiff states that he filed a grievance against Hendershot and she quit or was
terminated shortly thereafter. Id.
The medical records demonstrate the Plaintiff was seen repeatedly and monitored for his
finger injury during 2011 and 2012. ECF No. 26, Ex. 2, p. 56-76, 86-91, 97-102. Plaintiff was
evaluated by Hendershot on May 31, 2012. It was noted that the wound was healing with no
signs or symptoms of infection noted.3 Id., p. 78. Plaintiff’s wound care monitoring log indicates
that he was seen on May 27, 28, 29, 30, and 31, 2012 for wound care treatment. Id., p. 58, 97.
Plaintiff medical records indicate he refused treatment on June 1, 2012, in order to attend
religious services.4 Id., p. 2, 79, 81. Plaintiff was next evaluated by Dr. Thompson on June 7,

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In his opposition to the dispositive motion, Plaintiff indicates that prior to the third surgery on his finger on
May 11, 2012, his surgeon prescribed an antibiotic solution to clean the wound daily. Plaintiff states that the
antibiotic solution was used and charted sporadically. Id., Ex. 8. He also alleges that his surgeon directed he be
given Percocet for pain management but he was only provided Tylenol. Id., Ex. 12. Lastly, Plaintiff states that he
saw psychology staff because of the psychological harm caused by not having his dressing changed. Id.
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The Warden’s response to an ARP submitted by Plaintiff regarding the interruption in his wound care
indicates that Plaintiff was seen for “wound care on 5/27/12, 5/28, 5/29, 5/30, and again on 5/31. You signed off on
6/1/2012 which suspended your wound care treatment until the provider could meet with you to discuss. At that
appointment on 6/7/2012, you informed the provider that you had missed your wound care appointment on 6/1
because you chose to participate in a religious service. You have not resumed regular wound care treatments....”
ECF No. 35, Ex. 4. Plaintiff disputes that he signed off on treatment. ECF No. 35-12, Affidavit.

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2012, who found the wound clean, dry and healing. Id., p. 80-82. On June 11, 2012, Laura
Smith, RN, noted the wound dressing was clean, dry and intact. The wound site was covered with
clear mesh per the surgeon’s instruction and covered with silvelon. Smith noted the wound was
cleaned with hibiclens and wrapped with coban.5 Id., p. 3, 83.
Plaintiff’s wound was examined and the bandage changed on June 13, 14 and 17, 2012.
Id., p. 84-86, 97. Plaintiff failed to appear for physical examination and wound care on June 18,
20, and 22, 2012. Id. p. 92-94. The wound was inspected on June 25 and 26, 2012. Id., p. 97.
Plaintiff was seen on June 27, 2012, for an off-site consultation regarding the finger injury. Id., p.
12, 95. Plaintiff’s dressing was changed on June 28 and 30, 2012. Id., 96-97. On June 27, 2012
and July 19, 2012, it was noted by Plaintiff’s surgeon that the injury was well-healed and Plaintiff
should continue the use of coban wrapping for 8 months after the date of surgery.6 Id. p. 11-12,
15.
Hendershot avers that she treated Plaintiff appropriately and within the appropriate
standard of care. Id., Ex. 1. Hendershot explains that she was not responsible for assuring that
Plaintiff was presented to the medical department every day for dressing changes. Rather,
correctional officers brought Plaintiff to the medical unit. She states that when Plaintiff presented
to her for dressing changes she either changed the dressing or assisted Plaintiff in doing so per
his request. She avers that she did not refuse or deny Plaintiff treatment. Id.

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Coban is a self-adhering bandage that coheres to itself, but does not adhere well to other surfaces.
http://www.shop3m.com/3m-coban-self-adherent-wrap-rmtkdjpqgb.html
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Correctional officers reported to medical staff on July 21, 2012, that Plaintiff was observed throwing away
coban wrap. ECF No. 26, Ex. 2, p. 104. Plaintiff disputes doing so. On September 14, 2012, he was reissued coban
wrap. Id., p. 105.

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Plaintiff states that after he filed complaints to the medical grievance coordinator his
wound care appointment was changed from the evening shift to the morning shift so that he
would not have to be seen by Hendershot. ECF No. 35.
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
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
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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.@
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
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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.
Discussion
A.

Respondeat Superior
Plaintiff=s complaint against Corizon, Inc. is based solely upon the doctrine of respondeat

superior, which does not apply in '1983 claims. See Love-Lane v. Martin, 355 F. 3d 766, 782 (4th
Cir. 2004) (no respondeat superior liability under '1983); see also Trulock v. Freeh, 275 F. 3d
391, 402 (4th Cir. 2001) (no respondeat superior liability in a Bivens suit).

Liability of

supervisory officials must be “premised on >a recognition that supervisory indifference or tacit
authorization of subordinates= misconduct may be a causative factor in the constitutional injuries
they inflict on those committed to their care.=@ Baynard v. Malone, 268 F. 3d 228, 235 (4th Cir.
2001), citing 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 has pointed to no action or inaction on the part of

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Corizon, Inc. that resulted in a constitutional injury, and accordingly, his claims against Corizon,
Inc. shall be dismissed.
B.

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 either to
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

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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.
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).
Plaintiff’s allegations that he was not provided constitutionally adequate medical
treatment for wound care is belied by the record. Plaintiff was evaluated in a timely manner and
provided frequent and regular medical care for the wound to his finger. ECF No. 26, Ex. 2.
Nurse Hendershot was not responsible for insuring that Plaintiff appear in the medical department
for dressing changes. Id., Ex. 1. Plaintiff’s own complaint alleges that various members of the
correctional staff, not members of the medical staff, interfered with his ability to go to the medical
department for dressing changes. ECF No. 1. Even if Plaintiff did not receive daily dressing
changes on some days over a two week period of time as recommended by his surgeon, he has
failed to demonstrate any injury as a result of the disruption in his medical care. Medical records
demonstrate that his wound continued to heal and did not become infected. ECF No. 26, Ex. 2.
While the initial injury to his finger and the resulting surgeries certainly involved serious medical
needs, there is no indication that an occasional missed dressing change, by itself, involved such a
serious need. Moreover, there is a total lack of evidence that Nurse Hendershot was aware of a
serious need prompted by the daily dressing change and that she ignored it.

Furthermore,

Plaintiff’s claim that his previously diagnosed anxiety disorder increased while he worried over

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his wound care is unavailing. Title 42 U.S.C. § 1997e(e) provides that: “No Federal civil action
may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior showing of physical injury.”
C.

Injunctive Relief
Plaintiff’s request for injunctive relief shall be denied as he has failed to demonstrate: (1)

by a “clear showing” that he is likely to succeed on the merits at trial; (2) he is likely to suffer
irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor;
and (4) an injunction is in the public interest. See Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7, 20-23 (2008); Dewhurst v. Century Aluminum Co., 649 F.3d 287, 292-93 (4th
Cir. 2011). In short, the conditions set out by Plaintiff do not warrant injunctive relief.7
Conclusion
In light of the foregoing, the Medical Defendants are entitled to summary judgment. A
separate Order follows.

Date: August 27, 2013

__________/s/_____________________
DEBORAH K. CHASANOW
United States District Judge

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Plaintiff seems to indicate that this request for injunctive relief has been mooted as he states that once
Defendants received notice of his claim he “was transported soon thereafter to his, previously scheduled surgeon
visit...” ECF No. 35.

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