Smith-El v. Wexford Health Sources, Inc. et al

Filing 37

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 3/3/2015. (kns, Deputy Clerk)(c/m 3/4/15)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

RUSSELL SMITH-EL, #219814
Plaintiff,
v.

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WEXFORD HEALTH SOURCES, INC.
MARK W. HALE
PAUL MATERA
BRUCE FORD
LYNN COLE
CORIZON HEALTHCARE MEDICAL
SERVICE, INC. (FORMALLY KNOWN
AS CORRECTIONAL MEDICAL
SERVICES, INC.)
STUART CAMPBELL
RICH HALLWORTH
KEVIN BICE
MUNICIPAL CORPORATION
DEPARTMENT OF PUBLIC SAFETY
GARY D. MAYNARD
PHILIP J. PIE
TOMAS P. SULLIVAN
MICHAEL J. STOUFFER
BRUCE FORD
Defendants.

CIVIL ACTION NO. PJM-13-3870

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MEMORANDUM OPINION
Background
This self-represented 42 U.S.C. § 1983 civil rights action, was received for filing on
December 23, 2013. Eastern Correctional Institution (“ECI”) inmate Russell Smith-El seeks
declaratory relief and compensatory and consequential damages. Affording the self-represented
Complaint a generous construction, Smith-el alleges that Defendant medical providers have

engaged in “fraudulent contracts” to provide healthcare for Maryland Department of Public
Safety and Correctional Services (“DPSCS”) inmates for their own “unjust enrichment.”1 He
maintains that his life has been placed at risk of harm with regard to his physical and mental
well-being. Smith-El’s claims seemingly relate to his experiencing a torn bicep, fractured
collarbone, broken toe, and severe rash on his face and body. ECF No. 1 at pg. 24. He takes
issue with the “forceful” taking of his blood, his being injected with “small doses of
tuberculosis,” the performing of x-rays and surgical incisions without his consent and
Defendants’ access to his health information in violation of the Health Insurance Portability Act
of 1996 (“HIPPA”).2 Id. at pgs. 27-28.
Dispositive Filings
Medical Defendants Ford, Hale, Matera and Wexford Health Sources, Inc. (“Wexford”)
have filed a Motion to Dismiss. ECF No. 14.

Smith-El has filed an Opposition “Rebuttal,”

ECF No. 18, to which Ford, Hale, Matera and Wexford have filed a Reply, and Smith-El has
filed a Surreply. ECF Nos. 21 & 25. State Defendants Maynard and Stouffer have filed a
Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. ECF No. 16. SmithEl has filed an Opposition “Rebuttal.” ECF No. 27. Medical Defendants Bice, Campbell,
Corizon Healthcare Medical Services, Inc. (“Corizon”) and Hallworth have filed a Motion to
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The Complaint cites to alleged violations of the Sherman Act and the Fifth, Seventh,
Eighth, Thirteenth and Fourteenth Amendments raising conclusory claims of “involuntary servitude,”
“cruel and unusual punishment,” and violations of the “Due Process” and “Equal Protection” Clauses.
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Smith-El attaches a number of exhibits to the Complaint which relate to: (1) the annual
costs for DPSCS health care contracts: (2) Smith-el’s medical encounter and blood lab and a tuberculin
purified protein derivative (“PPD”) test results; (3) records related to Smith-el’s biopsy and x-rays; and
(4) Smith-el’s administrative remedy grievances regarding his medical care. ECF No. 1 at Exhibits.

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Dismiss. ECF No. 24. Smith-El has filed an Opposition “Rebuttal.” ECF No. 28. Smith-El has
filed Motions for Judgment on the Pleadings, which have been opposed by Defendants. ECF
Nos. 29-35. Finally, Smith-El has filed a Motion for a Hearing on Summary Judgment. ECF
No. 36. The Motions shall be ruled upon without the need for an oral hearing. See Local Rule
105.6. (D. Md. 2014)
Standard of Review
Defendants’ Motions are styled as Motions to Dismiss under Fed. R. Civ. P. 12(b)(6).
Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a Complaint if it fails to
state a claim upon which relief can be granted. In effect, the Motion “challenges the legal
sufficiency of a Complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations
omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A
motion to dismiss under Rule 12(b)(6) ... does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”).
The purpose of the rule is to “test the sufficiency of a complaint and not to resolve
contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v.
City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind
the requirements of Fed. R. Civ. P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule
12(b)(6). Specifically, a Complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and must state “a plausible
claim for relief,” as “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice,” Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937. See Velencia
v. Drezhlo, RDB-12-0237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (discussing standard
from Iqbal and Twombly ). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 663, 129 S.Ct. 1937.
Smith-El brought this action pro se, which requires the Court to liberally construe his
pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir.1978). Self-represented pleadings are held to a less stringent standard than those
drafted by attorneys. Haines, 404 U.S. at 520. Nevertheless, the requirement of liberal
construction does not mean that the Court can ignore a clear failure in the pleading to allege facts
which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 390–91 (4th Cir. 1990).
Analysis

The Court has liberally construed this Complaint to allege that the Medical Defendants
forceably subjected Smith-el to testing and surgical procedures. All served Defendants correctly
observe that Smith-El has provided no particulars regarding his claims and has alleged
“insufficient and conclusory facts.” He has failed to identify the health care providers involved
in the alleged acts, provide any dates when the medical procedures occurred, or set out what

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harm he experienced.3

Further, Defendants note that Smith-El presented similar claims in

Smith–El v. Wexford Health Sources, Inc., et al., Civil Action No. WDQ-13-893 (D. Md.), which
was summarily dismissed for the failure to state a claim. Defendants further observe that SmithEl has unsuccessfully litigated § 1983 claims against Medical and State defendants regarding the
healthcare provided to him while incarcerated. See Smith-El v. Mathis, et al., Civil Action No.
PJM-08-3302 (D. Md.) and Smith-El v. Maynard et al., Civil Action No. PJM-10-2929 (D.
Md.).
The Court finds that Smith-El has failed to state a claim under 42 U.S.C. § 1983. Title 42
U.S.C. § 1983 “ ‘is not itself a source of substantive rights,’ but merely provides ‘a method for
vindicating federal rights elsewhere conferred.’ ” Albright v. Oliver, 510 U.S. 266, 271 (1994)
(quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983
“creates a private right of action to vindicate violations of ‘rights, privileges, or immunities
secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, –– U.S. ––, ––,
132 S.Ct. 1497, 1501 (2012).
To state a claim under § 1983, Smith-El must allege two essential elements: (1) that a
right secured by the Constitution or laws of the United States was violated, and (2) that the
alleged violation was committed by a person acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988). Smith-El’s Oppositions and Surreply are replete with legal
citations and conclusions that fail to cure his pleading deficiencies. He continues to cite to

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Although Smith-El names Mark Hale, Paul Matera, Bruce Ford, Stuart Campbell, Rich
Hallworth, and Kevin Bice, presumably for their role as healthcare-affiliated Defendants, he has failed to
articulate any particularized claims against them.

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conclusory “buzz” words such as “involuntary servitude,” “joint undertaking,” “unlawful
enrichment,” “cruel & unusual punishment,” “constructive trust and fraud,” but has failed to 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.”
Twombly, 550 U.S. at 555–56. For these reasons Defendants’ Motions to Dismiss shall be
granted. Smith-El’s Motions for Judgment on the Pleadings and for a Hearing on Summary
Judgment shall be denied. A separate Order shall be entered reflecting the opinion entered by
this Court.4

/s/
PETER J. MESSITTE
March 3, 2015

UNITED STATES DISTRICT JUDGE

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Service of process was not accepted on Defendants Cole, Municipal Government Department of
Public Safety, Pie, and Sullivan. In light of the rulings issued by the Court, the Complaint filed against these
Defendants shall be dismissed.

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