Blankumsee v. Shearin et al
Filing
31
MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 7/30/2014. (c/m 8/4/2014 aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
AZANIAH BLANKUMSEE,
*
Plaintiff
v
BOBBY SHEARIN, Warden
GREG FLURY, P.A.,
COLIN OTTEY, M.D.,
Civil Action No. PWG-13-2658
*
*
*
***
Defendants
MEMORANDUM OPINION
Azaniah Blankumsee ("Blankumsee") is suing Bobby Shearin, former Warden of North
Branch Correctional Institution ("NBCI"), Greg Flury, a physician's assistant and Colin Otley,
M.D., pursuant to 42 U.S.C.
S
1983. (ECF No.1). Defendants have filed motions to dismiss or,
in the alternative for summary judgment with verified exhibits. (ECF No. 12, 17). Blankumsee
opposes the motions with a cross motion for summary judgment. (ECF No. 20).1 No hearing is
needed to resolve the issues. See Local Rule 106.5 (D. Md. 2011).
I.
BACKGROUND
A. PLAINTIFF'S ALLEGATIONS
Blankumsee,
an
inmate
incarcerated
at NBCI,
alleges
that
he
was
provided
constitutionally inadequate medical care for allergies and arthritic joint pain in August of 2013,
and requests compensatory and punitive damages as well as declaratory relief. He presents the
In addition to his cross- motion for summary judgment Blankumsee has filed declarations.
(ECF No. 15, 19, 20 and 25). Blankumsee's submission of fellow inmate Lawrence E. Jackson,
Jr.'s declaration (ECF No. 19) concerning Jackson's dissatisfaction with his own medical care is
not germane to Blankumsee's treatment. Jackson may pursue his own claims by filing a separate
complaint.
1
following allegations of fact:
On August 19, 2013, Blankumsee spoke with a nurse concerning renewal of his allergy
medication, BenadryI. The Benadryl had been prescribed by Greg Flury for
Blankumsee's
allergy-related eye and ear irritation and difficulty breathing and was to expire on August 20,
2013. CompI. 2, ECF No. 1.2 Additionally, Blankumsee told the nurse that his medication for
joint arthritis pain was ineffective.
According to Blankumsee, the nurse indicated the allergy
medication would be renewed, took the pain medicine from him, and stated that a "stronger"
pain medication would be prescribed for his pain. Id. 3
The following day, August 20, 2013, Blankumsee awoke unable to breathe and with
mucous in his eyes and ringing in his ears. Id. Blankumsee's right arm and left leg were numb
from substantial arthritic pain. Id. Blankumsee states that his "cell buddy" helped remove the
mucous from his eyes with
a washcloth
and hot water and assisted "with awaring both Bobby P.
Shearin and medical officials, to include M.D. Ottey Colin and P.A. Greg Flury, through the
administrative remedy procedure and sick call request forms, as Plaintiff could not write due to
substantial pain in his right hand." Id. at 2-3; see also ECF No. 19. That same day, August 20,
2013, Blankumsee informed a nurse administering medications on his tier of his condition, who
told him that only a physicians'
assistant or medical doctor could prescribe the medication.
Blankumsee claims that for the next ten days he went without medical treatment for his difficulty
breathing and excruciating pain. ECF Nos. 15 and 19. Based on these allegations, Blankunsee
All references to page numbers in record citations are to those generated by the court's
electronic case filing system.
2
3
William Beeman, RN, who evaluated Blankumsee on this date, is not named as a party
defendant. For reasons discussed herein, even if he were a defendant, Beeman's actions do not
show requisite deliberate indifference amounting to a violation of constitutional magnitude. See
infra, pp. 6,13-14.
2
claims defendants conspired to deprive him of medical treatment and acted with deliberate
indifference to his medical needs. Id. at 3.
B. DEFENDANTS' RESPONSE
1. Warden Shearin
Defendant Bobby Shearin, Warden at NBCI at the time of the incidents alleged, asserts
that he played no role in providing medical treatment to inmates, and requests dismissal of the
claims against him or entry of summary judgment in his favor. Shearin Mot. to Dismiss, ECF
No. 17. Defendants Colin Ottey, M.D. and Flury ("Medical Defendants,"
collectively) seek
dismissal of the complaint or judgment in their favor on the grounds that Blankumsee alleges no
specific facts to demonstrate they acted with intent to deprive him of needed allergy or pain
medication in support of his constitutional claim. Medical Defs.' Mot. to Dismiss, ECF No. 12.
In support of his dispositive motion, Shearin has submitted a declaration in which he
attests that medical care at NBCI is provided by employees of a private company, Wexford
Health Sources, Inc., pursuant to a contract with the State of Maryland. Shearin Decl. ~ 2,
Shearin Mot. to Dismiss Ex. A, ECF No. 17-2.
According to Shearin, correctional
staff
(including Shearin) make no decisions regarding the medical care provided to inmates, and he
has no authority to direct medical staff employed by the private contractor to provide care to an
inmate or to withhold care from an inmate.
Id.
Additionally, Shearin attests that he refers
complaints (often in the form of requests for administrative remedy or an "ARP") to medical
staff for investigation and response because he lacks the training and expertise required to
evaluate a medical case. Id. ~ 3. Shearin attests that he relies on the advice and analysis of
medical staff if he responds directly to an inmate's medical complaint.
advised to pursue his concerns with the medical provider. Id.
3
Usually the inmate is
Shearin
Blankumsee
attests to having no recollection
of receIvmg
any communication
concerning medical complaints. He has reviewed his correspondence
determined that it does not show any letters from Blankumsee either.
from
log and
Id. 4 Shearin also has
attached to his declaration Blankumsee's Individual ARP Index Report, which shows an ARP
with respect to medical conditions was submitted on June 10, 2013, but that no ARP respecting
medical conditions was' submitted in August 2013 or regarding the issues in Blankumsee' s
complaint.
ARP Index Report, Shearin Decl. Ex., ECF No. 17-2. Shearin declares that had he
received a letter or reviewed an ARP submitted by Blankumsee, he would have dealt with it as
above described. See id.
2. Medical Defendants
The Medical Defendants' response includes 97 pages of Blankumsee's
as well as Dr. Colin Otley's affidavit. Blankumsee's
5
medical records
medical records confirm his history of
seasonal allergies and "arthalgic-like joint pain" for which he has been prescribed various
medications including antihistamines, histamine blockers, anti-inflammatory
gluco-corticoster-
Blankumsee has provided a copy of his May 20,2013, ARP concerning medical care for dry
skin, pain in his right hand and left knee, and allergies and the response he received from
Warden Shearin. (ECF No. 20, Ex. A, pp. 1-2, Plaintiffs Motion for Summary Judgment; see
infra pp. 8-9). It is unclear why this ARP was not among the records found by Shearin.
4
It is not clear to me why the Medical Defendants thought that Blankumsee's S 1983 complaint
justified laying bare his medical history on the public docket, publishing ninety-seven pages of
his medical records in their entirety without redacting or sealing any portion besides his date of
birth, which is redacted from most, but not all, of the pages provided. Assuming that the
Medical Defendants are covered entities, I cannot see how such a disclosure is permissible under
the Health Insurance Portability and Accountability Act or the Health Information Technology
for Economic and Clinical Health Act. See 45 C.F.R. S 164.512(e) (allowing for disclosures in
judicial proceedings only under certain circumstances).
However, because it is not readily
apparent that the records provided by the Medical Defendants deal with deeply personal or
irrelevant material, I will leave it to the parties to determine if they wish to seek to seal or redact
those records. Cf Loud v. Stouffer, No. PWG-13-1134, 2013 WL 6147816, at *2-3 (D. Md.
Nov. 21, 2013).
5
4
oidal nasal solutions (for allergies), and non-steroidal
anti-inflammatory
medications
(for
arthritic pain). See generally Medical Records, Medical Defs.' Mot. to Dismiss Ex. 1, ECF No.
12-1; see also Ottey Decl. ~ 5, Medical Defs.' Mot. to Dismiss Ex. 2, ECF No. 12-2.
The
relevant medical history is summarized as follows:
On May 20, 2013, Blankumsee saw Flury for seasonal allergies, including sneezing,
rhinorrhea,6 and excessive tearing and dry skin. At the time, Blankumsee
Flunisolide
nasal spray and Chlor-trimeton.
Medical Records 8-11,
had been using
83; Ottey Decl. ~ 6.
Blankumsee complained the Chlor-trimeton was not helping him. Medical Records 8-11; Ottey
Decl. ~ 7.
At Blankumsee's
request, Flury discontinued
the Chlor-trimeton
prescribed Benadryl to start that day, May 20,2013, and to stop on August 20,2013.
and, instead,
Ottey Decl.
~ 7. He also wrote a thirty-day prescription for Naproxen7 to start on May 20, 2013, and stop on
June 20, 2013. Id.; Medical Records 83.
On June 10, 2013, Blankumsee submitted a sick call slip complaining that his hand and
knee hurt "to the point where [he] could not eat or walk." Medical Records 46. He also reported
the naproxen he was using was not working. Id.
On June 12,2013, Blankumsee was seen by Carla Buck, R.N. Blankumsee reported pain
in his left hand and dry skin.
Medical Records 12-13; Ottey Decl. ~ 8. The medical notes
indicate the hand was not swollen or deformed and there was full range of motion.
Medical
Records 12-13; Ottey Decl. ~ 8. Blankumsee was instructed to continue taking Naprosyn and
6 The Medical Defendants explain rhinorrhea is the medical term for the production of nasal
mucus. Medical Defs.' Mem. 10, ECF No. 12.
Prescription naproxen is used to relieve pain, tenderness, swelling, and stiffness caused by
osteoarthritis (arthritis caused by a breakdown of the lining of the joints), and rheumatoid
arthritis (arthritis caused,by swelling of the lining of the joints). See Naproxen, MedlinePlus:
Trusted
Health
Information
for
You,
http://www.nlm.nih.gov/medlineplus/druginfo/
meds/a681029.html (last visited July 24,2014).
7
5
return to the medical unit ifthere was no improvement.
Medical Records 12-13; Ottey Decl. ~ 8.
On June 21, 2013, Blankumsee was prescribed an additional thirty-day supply of naproxen to
keep on his person. Medical Records 85.
On July 22, 2013, Blankumsee submitted a sick call slip complaining that his arthritis
medication did not work and asking to renew his allergy medication.
Medical Records 50. In
response, he was seen on July 24, 2013 by William Beeman, R.N.
Medical Records 15-17;
Ottey Decl. ~ 9.
Blankumsee reported hand and knee pain and stated that he felt pain and
numbness when he moved.
Blankumsee's
Medical Records 15; Otey Decl. ~ 9.
Examination
revealed
gait and range of motion were normal, and he was advised to apply heat to
affected areas, to continue his current treatment regimen, and to return to the medical unit if his
symptoms worsened. Medical Records 17; Ottey Decl. ~ 9. Blankumsee did not express allergy
concerns at this medical visit. Medical Records 15-17; Ottey Decl. ~ 9.
On August 13, 2013, Blankumsee submitted a sick call slip complaining that he could
barely stand, eat or write due to pain in his right hand and knee. Medical Records 50. He wrote
the doctor had seen him more than a week before and was supposed to place him on pain
medication, but none was received. Id.
On August 16, 2013, Monica Wilt, R.N. examined Blankumsee for complaints of right
hand and left knee pain. Medical Records 18-20. At that time, Blankumsee rated his pain as 6
out of 10. Id. 8 Blankumsee was given a thirty-day supply of Motrin to keep on his person to
self-administer. Id. He also was advised to apply alternating warm and cold compresses to the
affected areas and to return if his symptoms did not improve or worsened.
Id. at 20.
Blankumsee did not request renewal of his allergy medications. Id. at 18-20; Ottey Decl. ~ 10.
8 Although neither party specifically explains the pain scale it appears the scale measures selfreported pain with 10 the highest level and zero or one the lowest level. See infra at 6.
6
On August 17,2017, Blankumsee submitted a sick call slip stating that the arthritis in his
hand and knee was worse and that he was being denied proper medical care as a result of
"deliberate indifference and medical negligence."
Medical Records 51.
He added "I need
something for this pain." He did not mention allergies or renewing his allergy medication. Id.
On August 19, 2013, Blankumsee
medication.
submitted a sick call slip to renew his allergy
Id. at 52. He wrote '[t]his is the seventh (7th) sick-call request I've submitted
regarding this issue- I need my allergy medication renewed (Benedryl)." Id.
On August 20, 2014, William Beeman, R.N. saw Blankumsee for knee and hand pain.
Medical Records 21-24.
Blankumsee reported the pain 8 out of 10 on the pain scale and
requested a refill of his allergy medication. Id. at 23. Blankumsee showed no allergy symptoms
such as nasal drainage, watery or swollen eyes, or inflamed ears or throat. Id. at 21-24; Ottey
Decl. ~ 11. Beeman concluded Blankumsee was in no apparent distress.
Medical Records 22.
Dr. Ottey states in his declaration, "[a]t that time, because there appeared no clinical need for
renewal of Plaintiffs
Benadryl prescription, Plaintiff was instructed to submit a sick call slip if
his condition changed." Ottey Decl. ~ 11.
In reference to Blankumsee's
concerns of knee and hand pam, Beeman noted that
Blankumsee was observed jumping out of his bunk and walking to his cell door with a normal
gait. Medical Records 23. Since examination revealed no tenderness or swelling, no pain on
movement,
intact
sensation,
and normal
range
of motion,
Beeman
recommended
that
Blankumsee continue his current pain treatment plan. See Medical Records 24.
On August 27, 2013, Blankumsee submitted two sick call slips complaining that he had
been without his allergy medication since August 20, 2013. Medical Records 54-55.
"[n]ow, I cannot breathe, or sleep, please renew my medication."
7
He stated
Id. at 54. In regard to his right
hand and left knee pain, he stated that the "nurse took all my medication back-saying he'd
prescribe me something stronger- I still haven't received anything since the 20th." Id. at 55.
On August 30, 2013, Lisa Shell, R.N. saw Blankumsee for pain and tingling in his right
arm and left knee. When asked to close his hand to make a fist, Blankumsee appeared unable to
do so. Medical Records 25. He also expressed concern that his allergy medicine had expired. Id.
9
Shell contacted Greg Flury, who issued thirty-day prescriptions for Benadryl and Indomethacin.
Id. Blankumsee was administered Benadryl that same day. Id. at 90.
On September 19, 2013, Flury saw Blankumsee in response to a September 12, 2013,
sick call slip, in which Blankumsee had complained Indomethcin was providing ineffective pain
relief for his arthritis. Medical Records 28-34, 56. Examination showed Blankumsee's gait and
musculature were normal, and there was no skeletal tenderness or joint deformity.
Id. at 28.
Flury ordered a chemistry panel and blood count, discontinued the Indomethacin, prescribed
Tegretol and Mobic,lo and instructed Blankumsee to return in six weeks for reevaluation.
Id. at
28-29.
Indomethacin is used to relieve moderate to severe pain, tenderness, swelling, and stiffness
caused by osteoarthritis (arthritis caused by a breakdown of the lining of the joints), and
rheumatoid arthritis (arthritis caused by swelling of the lining of the joints). See Indomethacin,
MedlinePlus: Trusted Health Information for You, http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a681027.html (last visited July 24,2014).
9
10 Tegretol is the brand name for carbamazepine, a drug which is used alone or in combination
with other medications to control certain types of seizures in patients with epilepsy. It is also
used to treat trigeminal neuralgia (a condition that causes facial nerve pain).
See
Carbamazepine,
MedlinePlus:
Trusted
Health
Information
for
You,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682237.html
(last visited July 24, 2014).
Mobic, the brand name for meloxicam, is used to relieve pain, tenderness, swelling, and stiffness
caused by osteoarthritis (arthritis caused by a breakdown of the lining of the joints) and
rheumatoid arthritis (arthritis caused by swelling of the lining of the joints). See Meloxicam,
MedlinePlus: Trusted Health Information for You, http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a601242.html (last visited July 24,2014).
8
On October 1, 2013, Kristi Cortez, R.N. evaluated Blankumsee, who complained the
Mobic was causing him mental imbalance, dizziness, and speech and vision disturbances.
Medical Records 35-36.
The medical notes from the visit state that Blankumsee was alert and
oriented with normal vital signs. Id. He was instructed to submit another sick call slip if his
complaints did not subside. See id.
On October 9, 2013, Ava Joubert, M.D. met with Blankumsee, who requested pain
medication and renewal of his Benadryl. Id. at 37. The record Jrom that appointment reads
"provider asked pt several times 'where is the pain' he had NO direct answer. .. tegretol and
meloxaca are current."
Id. Dr. Joubert renewed Blankumsee's Benadryl prescription and made
no changes to Blankumsee's pain medication regimen. Ottey Decl. ~ 15
On November
5, 2013, Blankumsee
was seen by Dr. Ottey for follow-up of his
complaints of joint pain. Ottey ~ 16. Blankumsee reported that he had been getting some relief
with the medication prescribed for him, id. and he reported no numbness or tingling, Medical
Records 39. After physical examination, Blankumsee's medication plan was continued.
Ottey
Decl. ~ 16.
C. PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
Blankumsee attests in support of his Motion for Summary Judgment and Answer to
Warden Shearin's dispositive motion that Shearin is not protected by the doctrine of qualified
immunity.
Pl.'s Mot. for Summ. J., ECF No. 20.
It is unclear why Blankumsee addresses
qualified immunity or why it is relevant here, as Warden Shearin does not raise the defense. See
Shearin Mot. to Dismiss.
Next, Blankumsee counters that he did in fact bring his allergy and hand and knee pain
complaints as well as delays in receiving responses to his requests to medical providers for
9
treatment, to Shearin's attention in an ARP dated May 20, 2013. ARP, PI.'s Mot. for Summ. 1.
Ex. A., ECF No. 20-1. On June 10,2013, Shearin answered the ARP, stating:
[I]nvestigation has reveale~ that you have received ongoing treatment and
prescribed medicine from what you reported to be allergies, rashes, and an
allergic reaction to Vaseline. You do not have a medical diagnosis for a skin
condition therefore you cannot be prescribed lotion.
Id.
II
Blankumsee appears to conclude based on this response that Shearin interfered with doctor-
ordered treatment. PI.' s Mot. for Summ. 1. 3. He generally attributes this to "medical staff other
than licensed doctors interfering and prescribing plaintiff medicine" and "policy deficiencies in
staffing and procedures."
Id. at 4.
Blankumsee also submitted the declaration of his cellmate Gerald Sears.
Sears DecI.,
ECF No. 25. Sears attests that he saw Blankumsee go without medical attention for up to ten
days in August of 2013 for pain in the left knee and right hand. Id. Sears declares he witnessed
Blankumsee suffer loss of breath, hearing, and vision as a result of allergies and that he cleaned
mucus from Blankumsee's eyes and held a bag to his mouth so that he could breathe. Id. Sears
also states that he filled out sick call slips for Blankumsee. Id.
D. ADDITIONAL PENDING MOTIONS
Several additional motions have been filed in recent weeks.
On June 3, 2014, the
Medical Defendants filed a Motion for Protective Order, ECF No. 27, asserting that Blankumsee
had promulgated
discovery requests prior to the issuance of a scheduling
order, id.
'il
4.
Blankumsee has filed a corresponding Motion for an Order Compelling Discovery, ECF No. 28,
stating that he has received no response to his discovery requests, id.
Court received and docketed Blankumsee's
On July 28, 2014, the
second Motion for Appointment of Counsel, ECF
Shearin's response did not address Blankumsee's concerns regarding allergy medication
renewal, arthritis pain, and delays by medical providers in responding to his sick call slips.
II
10
No. 29, and a Motion for Leave to File Amended Complaint, ECF No. 30.
II.
STANDARD OF REVIEW
Summary judgment is proper when the moving party demonstrates, through "particular
parts of materials. in the record, including
depositions,
documents,
electroriically
stored
information, affidavits or declarations, stipulations ... , admissions, interrogatory answers, or
•
other materials," that "there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c)(1)(A); see Baldwin v. City of
Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). When considering cross-motions for summary
judgment, the court must consider each motion individually and view "the facts relevant to
each ... in the light most favorable to the non-movant."
Mellen v. Bunting, 327 F.3d 355, 363
(4th Cir. 2003). The existence of only a "scintilla of evidence" is not enough to defeat a motion
for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,251 (1986). Instead, the
evidentiary materials submitted must show facts from which the finder of fact reasonably could
find for the party opposing summary judgment. Id. at 252.
The Court recognizes that Plaintiff is proceeding pro se and his complaint is to be
construed
liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However,
liberal
construction does not absolve Plaintiff from pleading a plausible claim. See Holsey v. Collins,
90 F.R.D. 122, 128 (D.Md. 1981) (citing Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir.
1977)).
III.
DISCUSSION
Blankumsee claims defendants acted with deliberate indifference to his serious medical
needs in violation of the Eighth Amendment.
As a threshold consideration, the claim against
Warden Shearin fails to show any personal involvement in Blankumsee's medical care.
11
A. Shearin's Supervisory Liability
In order to survive summary judgment for a claim under 42 U.S.C.
S
1983, a plaintiff
must "'affirmatively
show[] that the official charged acted personally in the deprivation of the
plaintiff's rights.'"
Wright v. Collins, 766F.2d
841, 850 (4th Cir. 1985) (quoting Vinnedge v.
Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). The doctrine of respondeat superior generally is
inapplicable to
S
1983 actions. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no
respondeat superior liability under
S
1983); Vinnedge, 550 F.2d at 927-99; see also Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 691 (1978).
Thus, Blankumsee must demonstrate that a
defendant had "personal knowledge of and involvement" in the alleged constitutional deprivation
in order to establish liability under
S
1983. Id.
Blankumsee, however; does not allege any
personal involvement by Shearin in the incidents presented in his complaint.
Liability of supervisory officials is not based on ordinary principles of respondeat
superior,
but rather is 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)). Section 1983 liability on
the part of a supervisor requires a showing that: 1) the supervisory defendant failed to provide an
inmate with needed medical care promptly, 2) the supervisory defendant deliberately interfered
with the medical provider's performance, or 3) the supervisory defendant tacitly authorized or
was indifferent to the medical provider's constitutional violations. See MUtier v. Beorn, 896 F.2d
848, 854 (4th Cir. 1990); see also Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984).
Blankumsee seeks to hold Shearin responsible for his alleged lack of medical care solely because
Shearin was Warden of the institution and reviewed his ARP complaining about medical care.
12
This is the very essence of the doctrine of respondeat superior, which is inapplicable in
S
1983
litigation. Shearin's general administrative responsibilities are insufficient to confer supervisory
culpability.
B. Eighth Amendment
As interpreted by the Supreme Court, the Eighth Amendment prohibits "unnecessary and
wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 (1976).
"Scrutiny 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). In the context of
denial of medical care, an Eighth Amendment
violation arises when 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, 105-06 (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). "True 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). "Actual 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 "if [he] responded
reasonably to the risk, even if the harm was not ultimately averted." Farmer, 511 U.S. at 844.
"[A]ny negligence or malpractice on the part of ... doctors in missing [a] diagnosis does
13
not, by itself, support an inference of deliberate indifference."
Johnson v. Quinones, 145 F. 3d
164, 166 (4th Cir. 1998). Without evidence that a doctor linked presence of symptoms with a
diagnosis of a serious medical condition, the subjective knowledge requirement is not met. !d. at
169 (reasoning that actions inconsistent with an effort to hide a serious medical condition refute
the presence of subjective knowledge). Mere disagreement with a prescribed course of treatment
is insufficient to establish an Eighth Amendment claim of deliberate indifference.
See Russell v.
Sheffer, 528 F. 2d 318, 319 (4th Cir. 1975) (concluding that, where a prisoner was under constant
medical supervision, his claims did not rise to the level of deliberate indifference).
1. Warden Shearin
There is no indication that Shearin directly was responsible
for any constitutional
violations. As a nonmedical correctional supervisor, Shearin was entitled to rely on the medical
judgment and expertise of prison physicians and medical staff concerning the course of treatment
necessary for inmates. See Shakka v. Smith, 71 F.3d 162, 167 (4th Cir. 1995); MUtier v. Beorn,
896 F.2d 848,854-55
(4th Cir. 1990) (stating supervisory prison officials are entitled to rely on
professional judgment of trained medical personnel and may be found to have been deliberately
indifferent by intentionally interfering with an inmate's medical treatment ordered by such
personnel).
Contrary to Blankumsee's
show interference
contentions, Shearin's June 10, 2013, ARP response does not
with medical care. Rather, it demonstrates
supervisor, appropriately
that Shearin, a nonmedical
relayed the concerns in the ARP for investigation to appropriate
medical providers. Shearin's subsequent answer was predicated on that investigation and was a
reasonable response. And to the extent that Blankumsee's response does not address every issue
raised in Blankumsee's ARP, the response does not show that Shearin was aware that he was so
14
doing, and there is no indication that Blankumsee attempted to follow up regarding those issues.
In short, Blankumsee provides no evidence that Shearin hindered his medical care or otherwise
acted with deliberate indifference to his medical needs. For these reasons, Shearin is entitled to
summary judgment in his favor as a matter of law.
2. Medical Defendants
Blankumsee does not dispute the contents of his medical records, and they demonstrate
that he has been seen regularly for his arthritis and allergy concerns. Blankumsee's
reactions, as well as hand and knee pain, undoubtedly have been uncomfortable.
allergic
Whether they
amounted to objectively serious medical needs, especially in light of the brief, ten-day period
that Blankumsee allegedly went without Benadryl, is not shown. Assuming, arguendo, that these
conditions did amount to serious medical needs, the uncontroverted records show that he was
prescribed various medications for pain relief and to manage his seasonal allergies.
When
Blankumsee indicated that a medication was not effective, medical providers have indicated that
they prescribed other medicines instead or instructed him to return to the medical unit if the
symptoms did not improve or worsened.
Blankumsee provides no facts to substantiate his
otherwise conclusory claims that Defendants acted with requisite deliberate indifference to his
serious medical needs or that they did so with in concert with Warden Shearin. When viewed in
the light most favorable to Blankumsee, his allegations evidence disagreement
with health
providers over the course of his treatment, not deliberate indifference to his serious health needs.
Though Blankumsee may take issue with Nurse Beeman's August 19, 2013, decision not to
renew the Benadryl prescription and to continue his joint pain treatment regimen, at that time
Blankumsee showed no allergic symptoms and was observed jumping out of his bunk and
walking with a normal gait. See supra. Blankumsee's disagreement with the nurse's assessment
15
of his complaints is insufficient to show deliberate indifference.
Blankumsee submitted sick call slips on August 27,2013, and he was seen by a medical
provider three days later, at which time his Benadryl was renewed and Indomethacin
was
prescribed. Crediting as true Blankumsee's assertion that he went for ten days without receiving
Benedryl and experienced great discomfort as a result of his allergies and arthritic pain, he fails
to show Defendants intentionally delayed in providing him medical care. Accordingly,
the
Medical Defendants are entitled to summary judgment as a matter of law.12
C. ADDITIONAL PENDING MOTIONS
The
grant of summary judgment in this case obviates the need for discovery, and
therefore both the Medical Defendants' Motion for Protective Order and Blankumsee's Motion
for an Order to Compel Discovery are moot.
With respect to Blankumsee's motion to appoint counsel, this is his second such motion,
the first of which I denied by an order dated May 16,2014.
Order, ECF No. 24. As I noted in
that Order, '''Counsel should be appointed in civil cases only under "exceptional circumstances,"
the existence of which 'turns on the complexity of a party's claims and his ability to present
them.'''
Id. at 1 (quoting Goodman v. Johnson, 524 F. App'x 887, 891 (4th Cir. 2013)).
As
before, I do not find that this case presents any exceptional circumstances that would justify the
appointment of counsel.
Id. And notwithstanding his lack of legal training, Blankumsee ably
has stated the facts underlying his claims so as to create a clear record for summary judgment.
Accordingly, the motion to appoint counsel will be denied.
Finally, with respect to Blankumsee's
motion to amend, the decision whether to grant
12
The Medical Defendants' July 3, 2014 Motion for Protective Order from discovery pending
disposition of their Motion for Summary Judgment (ECF No. 27) and Blankumsee's July 14,
2014, Motion to Compel Discovery (ECF No. 28) will be dismissed as moot.
16
such a motion is within this Court's discretion.
Fornan v. Davis, 371 U.S. 178, 182 (1962).
Pursuant to Rule 15(a)(2), "[t]he court should freely give leave [to amend] when justice so
requires."
The Court only should deny leave to amend if amendment "would prejudice the
opposing party, reward bad faith on the part of the moving party, or ... amount to futility," MTB
Servs., Inc. v. Tuckman-Barbee Constr. Co., No. RDB-12-2109, 2013 WL 1819944, at *3 (D.
Md. Apr. 30, 2013); see Fornan, 371 U.S. at 182 (stating that the court also may deny leave if the
plaintiff has amended more than once already without curing the deficiencies in the complaint);
Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006).
Here, Blankumsee seeks to amend his
complaint to name certain defendants whose identities were not known to him earlier and to
clarify a particular medication that he was prescribed. See PI.' s Mot. to Am. Because neither of
these additions would allow Blankumsee to survive summary judgment, amendment would be
futile and the motion to amend will be denied.
IV.
CONCLUSION
There is no disputed material fact on which Blankumsee could persuade a jury to find
that the Defendants' conduct demonstrated deliberate indifference to his serious medical needs.
For the reasons set forth above, Defendants' Motions for Summary Judgment will be granted and
Plaintiffs Motion for Summary Judgment will be denied. The Medical Defendants' Motion for
Protective Order and Plaintiff s Motion for an Order Compelling Discovery will be denied as
moot. Plaintiffs
Motion for Appointment of Counsel and Plaintiffs
Motion for Leave to File
Amended Complaint will be denied. A separate Order follows.
B~(t{
Paul '. Grimm
United States District Judge
Date
17
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