Hendrick v. Wexford Health Sources Inc. et al

Filing 59

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 9/29/2015. (kns, Deputy Clerk)(c/m 9/29/15)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

LARNELL HENDRICK,
Prisoner Identification No. 209.362,

Plaintiff,
v.
WEXFORD ilEAL TH SOURCES, INC.,
FRANK IJ. IJISHOP,
individually and as Warden of North Branch
Correctionallnslitution,
LIEUTENANT SA WYERS,
in his individual and official capacity,
SERGEANT G. FORNEY,
in his individual and official capacity,
CO II SOLTAS,
in his individual and official capacity.
CO II ANDERSON,
individually and in an official capacity,
IJILL IJEEMAN,
individually and as Medical Director of North
Branch Correctional Institution, and
DR. A VA JOUBERT,

Civil Action No. TDC-14-2544

Defendants.

MEMORANDUM

OPINION

Plaintiff Lamell Hendrick has been diagnosed with papilledema and pseudotumor cerebri
and is currently incarcerated at North Branch Correctional Institution ("NBCI") in Cumberland,
Maryland.

He has filed suit under 42 U.S.c. ~ 1983 (2012), alleging that Defendants Wexford

Health Sources, Inc. ('.Wexford"); Bill Beeman, the Medical Director at NBC]; and Ava Joubert,
M.D. (collectively, the "Medical Defendants") and Frank B. Bishop, Warden of NBC I ("Warden
Bishop); Lt. Thomas Sawyers; Sgt. Gregory Forney; CO II Nicholas Soltas; and CO II Chris

Anderson (collectively, the "State Defendants"), violated his rights under the Eighth Amendment
to the United States Constitution by reassigning him from a single cell to a double cell in
contravention of his medical needs, and in retaliation for filing administrative grievances against
correctional officers and for refusing the recommended

treatment for his medical condition.

Presently pending is the Medical Defendants' Motion to Dismiss or, in the Alternative, Motion
for Summary Judgment.1

The Motion is fully briefed and ripe for disposition.

necessary to resolve the issues.

See Local Rule 105.6 (D. Md. 2014).

No hearing is

For the reasons that

follow, the Motion is GRANTED.

BACKGROUND
The following facts are presented in the light most favorable to Hendrick, the nonmoving
party:
J.

Iliagnosis and Early Treatment
Hendrick is incarcerated at NBCl in Cumberland, Maryland.

On September 9, 2009,

Hendrick was diagnosed with papilledema, which causes him to suffer from temporary vision
loss. Hendrick's treating physician, Murtaza Amir, M.D., recommended that Hendrick receive a
lumbar puncture, also known as a spinal tap, to relieve the pressure inside Hendrick's skull. Dr.
Amir also recommended that Hendrick begin taking Diamox to treat his symptoms.
21,2010,

On January

a lumbar puncture on Hendrick revealed an elevated intracranial pressure of 38. On

May 5, 2010, following the lumbar puncture, Dr. Amir diagnosed Hendrick with pseudotumor
cerebri.

Although pseudotumor cerebri causes increased pressure in the skull and typically

manifests itself with headaches, Hendrick denied having any headaches.

Hendrick, however,

On August 6, 2015, the State Defendants filed their own Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment. That Motion will be addressed separately.
2

continued to complain of vision loss, and Dr. Amir recommended that Hendrick continue to take
Diamox.
On July 26, 2010, during a follow-up visit with Dr. Amir, Hendrick stated that, despite
taking an increased dosage, his symptoms were not improving with Diamox.

Dr. Arnir

recommended that Hendrick try another medication, Lasix, and that Hendrick have a ventricular
peritoneal ("VP") shunt placed in his brain to relieve the intracranial pressure.

Hendrick

declined to switch medications but said that he would consider the VP shunt.
II.

Placement in a Single Cell
On February 16,2011, Dr. Evan Lewis, a neurological physician from the University of

Maryland Medical Center, evaluated Hendrick.

In addition to vision loss, Hendrick complained

to Dr. Lewis about headaches and blurry vision. Dr. Lewis recommended that Hendrick undergo
another lumbar puncture, increase his dosage of Diarnox, and consider having a VP shunt
implanted. Fearing that surgery would be fatal, Hendrick declined VP shunt placement.

He also

declined to receive another lumbar puncture. He asked Dr. Lewis, however, whether he could be
placed in a single cell at NBCI.
prescription

containing

Following the evaluation, Dr. Lewis wrote Hendrick a

only the statement, "Recommend

Individual Housing of Prisoner."

Defs.' Mem. in Supp. of Defs.' Mot. Dismiss or, in the Alt., Mot. Summ. J. ("Defs.' Mem.") Ex.
1, at 49, ECF No. 27-4.
On February 25, 2011, Hendrick requested a single cell from NBCI medical providers.
Upon learning of Dr. Lewis' recommendation, NBCI medical providers granted Hendrick single
cell status for one year. On November 27, 2011, Hendrick's single cell status was renewed for a
second year.

3

On July 31, 2012, Dr. Amir again evaluated Hendrick and found that his intracranial
pressure was 23.5. Hendrick reported that he suffered from dizziness and vertigo, and that he
sometimes had trouble maintaining his balance.

Dr. Amir discussed increasing Hendrick's

Diamox dosage and again suggested that Hendrick undergo surgery.
increase his dosage or to have surgery.

Hendrick declined to

On November 21, 2012, Hendrick was approved for a

third one-year period of single cell status, which was set to expire on November 21, 2013.
III.

Renewal of Single Cell and Administrative Grievances
Hendrick alleges that on June 29, 2013, he was assaulted by three NBCI correctional

officers during a search of his cell.

On July 9, 2013, he filed an Administrative

Procedure ("ARP") grievance against the officers.

Remedy

The grievance, however, was dismissed the

following day because the Internal Investigative Unit ("IIU") of the Maryland Department of
Public Safety & Correctional Services was investigating the incident. No further action could be
taken on the ARP grievance until the IIU completed its investigation.
On January 29, 2014, Hendrick saw Kristi Cortez, R.N., at NBC! and requested that his
single cell status be reinstated.2

Cortez referred the request to another medical care provider.

The following day, Quinta Lam, P.A., referred the request to Colin Ottey, M.D., who approved
it. On February 4, 2014, Hendrick was granted single cell status for a fourth year, which was
scheduled to expire on February 4, 20J5.
On April 28, 2014, Hendrick refiled his grievance against the three officers for the
alleged assault.
investigating

On May 2, 2014, the grievance was dismissed because the IIU was still

the incident.

On May 23, 2014, Hendrick appealed

the dismissal

to the

2 The record reflects that, ailer Hendrick's third year of single cell placement expired in
November 20t3, he was returned to a cell with more than one bed but placed on "low bunk
status." Defs.' Mem. Ex. I, at 4.

4

Commissioner of Correction.

On June 10,2014, the Commissioner dismissed the appeal on the

grounds that the matter was still under investigation by the I1U and that no action further would
be taken. On July 28, 2014, following the dismissal of his appeal, Hendrick filed suit against the
officers in federal court.

See Hendrick v. Gordon, No. DKC-14-2398 (D. Md. filed July 28,

2014). That action is still pending before another judge in this District. See id.
IV.

Hendrick's Return to a Ilouble Cell
According to Hendrick, on July 16, 2014, he was summoned to meet with Medical

Director Beeman, Dr. Joubert, and Lt. Sawyers.

Unlike for some of his previous medical

evaluations, Hendrick had not requested a visit with medical personnel.

While Dr. Joubert took

his vital signs, Beeman and Lt. Sawyers asked if he would be willing to "sign(] off" on his
grievance relating to the alleged physical assault in exchange for maintaining his single cell
status. See Pl.'s Mem. Law in Support ofPl.'s

Opp'n to Defs.' Mot. Dismiss or, in the Alt., Mot.

Summ. J. ("Pl.'s Opp'n") 9-10, ECF No. 29_1.' Hendrick refused this otTer and said he would
continue to pursue his grievance.

He then was directed to a room across the hall, where he met

Beeman, Lt. Sawyers, and Dr. Joubert, as well as others.
Hendrick's

Beeman then offered to maintain

single cell status if he would agree to have surgery to implant the VP shunt.

Hendrick declined.
According to the Medical Defendants, the July 16, 2014 meeting was a scheduled
provider chronic care visit for Dr. Joubert to evaluate Hendrick's

symptoms and included a

patient care conference "to discuss medical issues surrounding [Hendrick's) understanding of the

3
Because Hendrick included a statement "under penalty of perjury" that the contents of his
Memorandum in Opposition to the Motion were "true and correct to the best of my knowledge
and belief," PI.'s Opp'n 45, and because the Court construes pro se plaintiffs' submissions
liberally, the Court deems those portions of the Memorandum that constitute factual statements
based on Hendrick's personal knowledge to constitute an affidavit for purposes of the Motion for
Summary Judgment.

5

implications of his refusal of VP shunting / and custody issues surrounding medical necessity for
single cell status." Defs.' Mem. Ex. 1, at 10. During the chronic care visit, Hendrick stated that
anxiety and claustrophobia were aggravating his symptoms, that he had been suffering from
black outs, and that he was experiencing photophopia,4 worsening vision, and vertigo. At the
"multidisciplinary conference" the same day, Dr. Joubert reviewed Hendrick's medical history
and discussed the health implications of his refusal to pursue a VP shunt placement. /d. at 13.
Dr. Joubert concluded that Hendrick was fully competent to refuse surgery and that '"there does
nol appear to be indication to continue single cell status." Id. She added that, "in light of his
history of 'blacking out' it would be to his benefit to have a cell mate." Id. Dr. Joubert also
recommended that Hendrick refer himself to Behavioral Health for his anxiety.
Hendrick further alleges that on July 24, 2014, he was moved to a double cell by
correctional officers, including Sgt. Gregory Forney, CO II Nicholas Soltas, and CO II Chris
Anderson. Sgt. Forney stated that Beeman had given the "green light" to take away Hendrick's
single cell and put Hendrick "under attack." PI.'s Opp'n at 10-11. When Hendrick noted that he
had papers signed by Dr. Colin Ottey approving the single cell, Sgt. Forney said that he was
aware of that but that he "[did] not care." Id. at II. When Hendrick refused to go to a double
cell, the correctional officers moved him to a segregation unit, during which Sgt. Forney told him
that he "should not have filed those ARPs." Id. at II. Hendrick alleges that when they arrived at
the segregation cell, Soltas, Anderson, and others physically forced him into the cell and
slammed his head into the side of the cell wall.

"Photophobia" is "eye discomfort in bright light." See Photophobia, National Library of
Medicine, National Institute of Health (May 7, 2013), https://www.nlm.nih.gov/medlineplus/

4

ency/articlel003041.htm.
6

V.

Events Following Hendrick's

Return to a Double Cell

On July 26, 2014, Hendrick was taken to the medical unit at NBCI after he was found
unconscious on the floor of his cell. Hendrick asserts that he blacked out and collapsed in his
double cell and regained consciousness in the medical room. Hendrick's medical records
indicate that Hendrick had "lowered himself to his cell floor with no injuries." Defs.' Mem. Ex.
I, at 15. According to Hendrick, his cellmate was aggravated by Hendrick's medical condition
and told correctional officers that he wanted Hendrick moved out of the cell. On July 29, 2014,
Hendrick saw a nurse to request single cell status, at which time he stated that he was on a
hunger strike until he was returned to a single cell. Later that day, Hendrick blacked out and
collapsed again and was brought to the medical unit for attention. He ended the hunger strike on
July 31, 2014.

On August 29, 2014, Hendrick met with a nurse and complained that he was blacking out
and was in "extreme fear" of his cellmate, Wayne Boone, which caused him severe anxiety,
migraines, and nightmares. PI.'s Opp'n 15-16. He again requested single cell status. The nurse
did not recommend Hendrick for a single cell but told him that Boone would assist him if he had
any medical issues. Hendrick responded that Boone was angry that Hendrick was placed in the
same cell, especially given that Hendrick had previously soiled himself and had been blacking
out and screaming in the middle of the night. The nurse ordered that Hendrick return to his cell.
On September 5, 2014, Hendrick saw another nurse and again requested single cell status.
The nurse said that she would "see what she could do," told Hendrick to write to his case
manager about the situation, and directed Hendrick to return to his cell. Jd. at 17. A few days
later, Hendrick sent a request to Case Management Manager Richard Roderick requesting a

7

return to a single cell. Roderick notified Hendrick that he would be placed on a waiting list for a
case management-led group on anger management.
Hendrick also identifies severdl incidents between July 2014 and October 2014 in which
prisoners at NBCI allegedly murdered their cellmates and further asserts that from 2011 to 2014,
numerous inmates have been found dead in double cells at NBC I. He also alleges that, on
January 26, 2015, he blacked out and began to hallucinate that a bird was flying in his cell. He
awoke later to find that he had assaulted his new cellmate, Adrian Jones, leaving him bloodied.
Hendrick was later found guilty of assaulting a fellow prisoner.
VI.

Procedural

History

Hendrick tiled this action on August 8, 2014, against Wexford, Warden Bishop, Lt.
Sa"yers,
Complaint

Sgt. Forney, CO II Soltas, and CO II Chris Anderson.
asserted claims that (1) Defendants violated Hendrick's

Construed liberally, the
Eighth and Fourteenth

Amendment rights by showing deliberate indifference to a serious medical need by moving him
to a double cell; (2) Defendants retaliated against Hendrick, for filing and continuing to pursue
an excessive force claim against the officers who allegedly attacked him in June 2013, by
moving him to a double cell; and (3) Defendants Soltas and Anderson used excessive force
against him when physically relocating him from his single cell.
On October 23, 2014, Hendrick amended the Complaint to include Dr. Joubert as a
Defendant.

On February 9, 20 IS, the Medical Defendants filed the presently pending Motion.

On February 27, 2015, Hendrick filed a Response to the Motion. The Medical Defendants tiled
their Reply to the Response on March 18,2015.
On July 10,2015, the Court granted in part a Motion for Leave to Amend the Complaint
to permit additional allegations relating to the impact of living in a double cell on Hendrick and

8

"numerous murders" of cell mates that have occurred at NBC!. Order 4, ECF No. 48; Pl.'s Mot.
Leave Amend Compl.
On September
Supplement,

21-22, ECF No. 34. No new legal claims were added.
28, 2015, the Court granted Hendrick's

Motion to Amend and/or

Whichever is Appropriate, in the Interest of Justice, Pursuant to the Complaint,

ECF No. 56, seeking to add allegations that Defendants were aware of the recent history of
attacks on inmates by their cellmates. No new legal claims were added.
DISCUSSION
In their Motion, the Medical Defendants seek dismissal or summary judgment on the
grounds that (1) the Complaint fails to state a claim against Wexford because there is no
vicarious liability (respondeat superior) under 42 U.S.C. ~ 1983 and (2) Hendrick has failed to
demonstrate that the Medical Defendants violated the Eighth Amendment through "deliberate
indifference" to a "serious illness or injury." Estelle v, Gamble, 429 U.S. 97, 105 (1976).
In filing the Motion, the Medical Defendants do not challenge Hendrick's claim that the
decision to rescind his single cell status constituted unlawful retaliation in violation of his
constitutional

rights.

summary judgment.

Accordingly, the Court construes the Motion as a motion for partial
For the reasons set forth below, the Court grants the motion for partial

summary judgment as to the two issues addressed in the Motion.s

S On August 26, 2015, Hendrick filed a Motion to Amend Plaintiff's Complaint in the Interest
of Justice, ECF No. 55, in which he clarified that his claim for retaliation is based on the theory
that he was moved to a double cell in retaliation for having filed grievances relating to the June
29, 2013 alleged assault, in violation of his First Amendment "right to petition for grievances."
ld. at 3. He also asserted a claim under the Eighth Amendment that his forced move to a double
cell constituted a failure to provide "reasonable safety," in violation of the Eighth Amendment.
ld. The Court will rule on that Motion to Amend separately. Because the original Complaint
clearly stated a retaliation claim that was not addressed here, the Court need not rule on that
motion to conclude that the Medical Defendants' Motion effectively seeks only partial summary
judgment.

9

I.

Wexford's Motion to Dismiss
Wexford's claim that the Complaint fails to state a claim against it because there is no

respondeal superior liability under 42 U.S.C. ~ 1983 is properly construed as a Motion to
Dismiss under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the
Court grants the Motion.

A.

Le~alStaDdard

To defeat a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), the

complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow the Court "to draw the
reasonable

inference that the defendant is liable for the misconduct alleged."

Id.

Legal

conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint
as a whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff.

Albrighl v. Oliver, 510 U.S. 266, 268

(\994); Lambelh v. Bd ofComm'rs of Davidson enly., 407 FJd 266, 268 (4th Cir. 2005). Pro se
complaints must be liberally construed and are held to a less stringent standard than documents
drafted by attorneys. Erickson v. Pardus, 551 U.S. 89,94 (2007).
8.

Vicarious Liability

Hendrick has asserted that Wexford is liable because it "is the entity who govcm[s] the
NBCI Medical Dept and [they are] liable in this case ...

for the malicious actions of NBCI

Medical Director Bill Beeman," Compl. 7, and it is a "private entity" that "had or should have
had knowledge of this continual deliberate action committed against Plaintiff by its medical
agents."

PI.'s Opp'n 29.

Wexford argues that Hendrick has failed to state a claim against

Wexford because Hendrick's claim is that Wexford is liable for the actions of its employees

10

under a theory of vicarious liability (respondeat superior), but there is no such liability available
under 42 U.S.C ~ 1983. Wexford is correct.
Section 1983 allows individuals to sue in federal court any person who violates their
federally protected rights while acting under the color of law. 42 U.S.C. ~ 1983 (2012).

"lbe

Supreme Court, in Monell v. Department of Social Services of the City of New York, 436 U.S.
658 (1978), concluded that local government entities are considered "persons" for the purposes
of ~ 1983, but they cannot be held liable solely because they employ an individual
committed an unlawful act. Id. at 690-91.

who

Rather. local governments can only be sued if the

constitutional violation alleged results from a custom or policy of the local government.

Id. This

standard also applies to private companies that employ individuals acting under color of state
law, such as special police officers, who allegedly commit unlawful acts. Austin v. Paramount
Parks. Inc., 19S F.3d 71S, 728 (4th Cir. 1999) (citations omitted).

Such companies are liable

under ~ 1983 "only when an official policy or custom of the corporation causes the alleged
deprivation of federal rights." Jd. (emphasis in original).
Here, the case centers on the decision by Wexford personnel to return Hendrick to a
double cell. Hendrick alleges no specific conduct by Wexford, and he does not allege a custom
or policy of Wexford that resulted in a deprivation of his constitutional rights.
essence, seeks to hold Wexford liable because it employed the individuals

Hendrick, in
who made the

decision, which is insufficient to establish liability against a private company under ~ 1983. See
Powell v. Shopco Laurel Co., 678 F.2d S04, SOS-1J6(4th Clr. 1982) (dismissing a claim against
the private employer of a security guard under

9

1983). Accordingly,

Dismiss is granted, and the claims against Wexford are dismissed.

11

Wexford's

Motion to

II.

Ei~hth Amendment Claim on Inadequate Medical Care
The Medical Defendants seek dismissal of, or summary judgment on, Hendrick's claim

that the decision to return him to a double cell constituted "deliberate indifference" to a serious
medical need and thereby violated his Eight Amendment rights.

Because both parties have

submitted evidence for the Court's review, the Motion is construed as a motion for swnmary
judgment for purposes of Hendrick's Eighth Amendment claim. See Fed. R. Civ. P. 12(d).
A.

Legal Standard

Under Federal Rule of Civil Procedure 56(a), the Court grants swnmary judgment if the
moving party demonstrates that there is no genuine issue as to any material fact, and that the
moving party is entitled to judgment as a matter oflaw.

Fed. R. Civ. P. 56(a); Celolex Corp. v.

Catrell, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the light
most favorable to the nonmoving party, with all justifiable

inferences drawn in its favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts
supported in the record, not simply assertions in the pleadings.

FellY v. Grave-Humphreys

Co.,

818 F.2d 1126, 1128 (4th Cir. 1987). 'Ihe nonmoving party has the burden to show a genuine
dispute on a material fact. Malsushila Elec. Indus. Co. v. Zenilh Radio Corp., 475 U.S. 574,
586-87 (1986).

UA material fact is one that might affect the outcome of the suit under the

governing law." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting
Anderson, 477 U.S. at 248) (internal quotation marks omitted). A dispute of material fact is only
"genuine" if sufficient evidence favoring the nonmoving party exists for the trier of fact to return
a verdict for that party. Anderson, 477 U.S. at 248-49.

12

B.

"Deliberate Indifference"

The Eighth Amendment prohibits cruel and unusual punishment.

U.S. Const. amend.

VIII. A prison official violates the Eighth Amendment when the official shows "deliberate
indifference to serious medical needs of prisoners."

Esle//e, 429 U.S. at 104; Jackson v.

Lighrsey, 775 FJd 170, 178 (4th Cir. 2014). To be "serious," the condition must be "one that
has been diagnosed by a physician as mandating treatment or one that is so obvious that even a
lay person would easily recognize the necessity for a doctor's attention." Jackson, 775 F.3d at

178 (quoting llw v. Shreve, 535 FJd 225, 241 (4th Cir. 2008» (internal quotation marks
omitted); see a/so Russell v. Sheffer, 528 F.2d 318, 318 (4th Cir. 1975) (per curiam) ("Questions
of medical judgment are not subject to judicial review."). "An official is deliberately indifferent
to an inmate's serious medical needs only when he or she subjectively knows of and disregards
an excessive risk to inmate health or safety." Jackson, 775 FJd at 178 (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994» (internal quotation marks omitted). "[lIt is not enough that
an official should have kno'Ml of a risk; he or she must have had actual subjective knowledge of
both the inmate's serious medical condition and the excessive risk posed by the official's action
or inaction." Id. (citations omitted). Thus, a deliberate indifference claim has both an objective
component-that

there objectively exists a serious medical condition and an excessive risk to the

inmate's health and safety-and

a subjective component-that

the official subjectively knew of

the condition and risk. Farmer v. Brennan, 511 U.S. 825,834,837

(1978) (holding that an

official must have "knowledge" of a risk of harm, which must be an "objectively, sufficiently
serious").
Deliberate indifference is an "exacting standard" that requires more than a showing of
"mere negligence or even civil recklessness, and as a consequence, many acts or omissions that

13

would constitute medical malpractice will not rise to the level of deliberate indifference."
Jackson, 775 F.3d at 178; Rich v. Bruce, 129 FJd 336, 339 (4th Cir. 1997) (finding that even
when prison authorities are "'too stupid" to realize the excessive risk their actions cause, there is
no deliberate indifference).
defendant's

To constitute deliberate indifference to a serious medical need, the

actions "must be so grossly incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to fundamental fairness."

MUlier v. Beorn, 896 F.2d 848, 851

(4th Cir. 1990).
The Medical Defendants do not dispute that Hendrick's medical condition is serious.
Hendrick suffers from papilledema and pseudotumor cerebri, which have resulted in, at various
times, temporary vision loss, dizziness, blackouts, and hallucinations.
initially diagnosed

Hendrick's condition was

in 2009, and physicians have repeatedly wged Hendrick to seek more

intensive treabnent for his condition, including surgery to implant a VP shunt.

They deny,

however, that they acted with "deliberate indifference" to Hendrick's serious medical needs. See
Estelle, 429 U.S. at 104.
Given that Hendrick's care has included numerous examinations and tests, prescriptions
for different medications in varying doses, and recommendations
would be difficult to argue that the Medical Defendants'
indifference"

to his needs.6

for surgical procedures, it

treabnent

exhibited "deliberate

Despite his repeated medical treatment, Hendrick nevertheless

argues that the Medical Defendants acted with deliberdte indifference by removing his single cell
status. In support of his argument, Hendrick asserts that (1) he needs a single cell because of the

In his memorandum in opposition to the Motion, Hendrick asserts that the Medical Defendants
denied him access to adequate medical care despite the recommendation of a specialist, in
violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ~~ 12101 el seq.
(2012). The Court already rejected Hendrick's ADA claim in its July 10, 2015 Order. ECF No.
48.
6

14

risk that a cellmate will take advantage of his condition and assault him, such as if he blacks out
or experiences vison loss; (2) a doctor in 2009 recommended that he be placed in a single cell.
and he was generally housed in a single cell from that time forward until July 2014; (3) as late as
February 2014, Dr. Colin Otley at NBC I renewed his single cell status for one year; (4) once he
was placed in a double cell, he did, in fact, lose consciousness in his cell on several occasions,
and two different cellmates have complained about his presence in the cell because of his
medical issues; (5) on one occasion on January 26, 2015, he apparently assaulted his cellmate
while hallucinating,

but has no memory of the incident; and (6) on other occasions other

incarcerated individuals at NBCI were allegedly assaulted or killed by cel1mates.
These facts are insufficient to establish "deliberate indifference" arising from the decision
to return Hendrick to a double cell. Placing an inmate in a cell with another inmate generally
does not violate the Eighth Amendment.
To show deliberate indifference,

See Rhodes v. Chapman, 452 U.S. 337, 347-50 (1981).

Hendrick must establish that (1) there objectively was an

excessive risk to inmate health and safety based on his placement in a double cell and (2) the
Medical Defendants actually knew of that risk and disregarded it. See Farmer, 511 U.S. at 834,
837. Hendrick's evidence is insufficient to establish the objective component of the test, that
there is an excessive risk to inmate health and safety.
The Medical Defendants have provided an affidavit by Dr. Ottey, the Medical Director of
NBCI, who has treated Hendrick, in which Dr. Ottey states "with a reasonable degree of medical
probability" that "the decision to house Plaintiff in a double cell was medically appropriate and
within the standard of care. Having a cell mate ... makes Plaintiff safer because the cellmate can
notify correctional staff if/when Plaintiff should ever lose consciousness or require immediate
medical attention."

Defs.' Mem. Ex. 2

22. This conclusion is consistent with Dr. Joubert's

15

finding after the July 16,2014 meeting that "there docs not appear to be indication to continue
single cell status ... in light of [Hendrick's] history of 'blacking out' it would be to his benefit to
have a cell mate." Defs.' Mem. Ex. 1, at 13. Although Hendrick disagrees with this conclusion,
a disagreement between an inmate and a physician over proper medical care is not sufficient to
show deliberate iodifference.

See Jackson, 775 F.3d at 178 (quoting Wright v. Collins, 766 F.2d

841, 849 (4th Cir. 1985)); Russell, 528 F.2d at 319.

Hendrick has asserted that the earlier decisions to approve single cell status contradict
this conclusion and establish that failure to provide a single cell constitutes "deliberate
indifference" to a serious medical need. A review of the medical records reveals that Hendrick
had been approved for a single cell from 2011 to Novemher 2013, then had that status reinstated

for the period from February 2014 to February 2015. The medical records, however, do not
indicate that single cell status was an absolute medical necessity. The original approval in
February 2011 was based on a February 16, 201I recommendation by Dr. Lewis of the
University of Maryland Neurosurgery Associates, written on a prescription form, stating
"Recommend Individual Housing of Prisoner," without explanation. Defs.' Mem. Ex. 1, at 49.
The medical notes of a February 25, 2011 examination state that although Hendrick asked for a
single cell because he did not trust other inmates, "Patient was advised again that the[re] is
currently no medical indication for single cell status," and that he "currently demonstrates no
neurologic [symptoms] that would necessitate placement in a single cell and was previously told
that a cellmate would be able to notify staff jf his condition declines." Id. at l. The same day,
Dr. Summerfield, having reviewed Dr. Lewis's recommendation, indicated that he was "in
[f]avor of a single cell" for Hendrick. Id. at 3. Another doctor, Dr. Getachew reportedly was
"comfortable going wI the Ophthalmologist's & Neurologist's suggestion," so an order was

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issued for single cell status for one year "for condition that may result in blindness." Jd. The
subsequent records indicate that Hendrick lost his single cell status from November to January
2013, then requested renewal of his single cell status because of his "papilledema diagnosis" and
"claustrophobia." ld. at 4-6. When his status was reinstated in February 2015 by Dr. Ortey, no
specific reason for the renewal was provided.
The medical records relating to the original decision, which predate the June 2013 alleged
attack on Hendrick, therefore show some disagreement among medical professionals on the need
for a single cell, and that the final decision to approve the single cell was based on a
"suggestion:' ld. at 3. The records further indicate that Hendrick's single cell status was not
maintained continuously, and that no doctor had articulated reasons for the single cell status that
indicate "an excessive risk to inmate health or safety" arising from a double cell. Jackson, 775
F.3d at 178. Significantly, the records reveal that Dr. Joubert's rationale for a double cell in
2014, that Hendrick would have a cellmate who could raise the alarm if Hendrick blacked out or
had other medical issues, was first raised in the 2011 discussions on whether Hendrick should be
granted the single cell.
At most, therefore, Hendrick can show that the decision to place him in a double cell
differed with his view and the views of other medical professionals. However, the fact that
medical professionals may differ on a recommended course of treatment does not establish
deliberate indifference. See id. at 178. In Jackson, the Fourth Circuit found no deliberate
indifference when a general practitioner failed to diagnose a serious heart condition and altered
the treatment plan, even though a cardiologist had previously diagnosed the condition and treated
him for it. Jd. Even though the second doctor's approach "might support a medical malpractice
claim" and "may have been mistaken, even gravely so," the court concluded that the claim was

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essentially a disagreement between an inmate and a physician over the inmate's proper care. Jd.
The Fourth Circuit has consistently found such disagreements "to fall short of showing deliberate
indifference:'

Id.

Where the medical records show that there was no uniformity among the

medical professionals on whether an inmate with Hendrick's condition required a single cell for
medical reasons and no clear evidence that failing to provide a single cell would pose an
excessive risk to Hendrick's

health and safety. he cannot show deliberate indifference

to a

serious medical need.
Hendrick further argues that his experience in a double cell provides additional evidence
supporting a showing of an excessive risk to his health and safety. Viewing this evidence in the
light most favorable to Hendrick, however, the Court finds that it falls short.

Hendrick has

asserted that since the July 20]4 decision to move him to a double cell, he blacked out twice in
his cell and has engaged in other behavior resulting from his condition. such as screaming in the
middle of the night, soiling himself, and hallucinating.

He has expressed fear and anxiety over

the possibility that a cellmate could attack him. According to Hendrick, two different cellmates
were angry that they had to share a cell with Hendrick and asked that he be moved. He has not
provided any evidence, however, that either of these cell mates threatened him or caused him any
harm.

Nor has he shown that during his earlier time period in a double cell, from November

2013 to February 20]4, any cellmates threatened or attacked him.

To the contrary, the only

violent episode that Hendrick asserts involved him assaulting his cellmate while hallucinating
about a bird flying in his cell.
Otherwise. the only evidence Hendrick has offered to show the excessive risk to his
safety consists of his multiple references to incidents, unrelated to him or to inmates with his
medical condition, in which inmates have assaulted or killed their cellmates at NBCI. Because

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none of those examples involved cellmates with the same or similar medical condition as
Hendrick, this evidence is of little probative value.

In the end, therefore, Hendrick relies

primarily on his subjective concerns for his safety, which are insufficient to prove the excessive
risk to his health and safety necessary to establish a deliberate indifference claim based on the
decision to move him to a double cell. See Rhodes, 452 U.S. at 347-49 (analyzing the objective
state of the prison. rather than the subjective impressions of prisoners, in finding double cells do
not violate the Eight Amendment's Cruel and Unusual Punishment Clause); Williams v, Bishop,
No. RWT-12-1616, 2014 WL 4662427, at '6 (D. Md. Sept. 16, 2014) ("A prisoner's strong
desire to be in a single cell, based on his belief that his medical conditions cause difficulties with
cellmates, does not entitle him to housing in a single cell unless medical providers have made a
directive for a single cell based on a medical need."); cf Wolffv. Hatcher, 936 F.2d 581, No. 9016304,1991 WL 113213, at 'I (9th Cir. June 24,1991) (denying claim that defendant convicted
of child molestation offenses had a constitutional right to a single cell to avoid abuse by other
prisoners).
Based on this record, Hendrick has not demonstrated that the decision to place him in a
double cell poses an "excessive risk to inmate health or safety," Jackson, 775 F.3d at 178, or that
the decision to do so was '''so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness," MUlier, 896 F.2d at 851. Accordingly,
the Medical Defendants are entitled to summary judgment on Hendrick's Eight Amendment
claim based on deliberate indifference to serious medical need.

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CONCLUSION

For the foregoing reasons, the Motion, construed as a Motion for Partial Summary
Judgment, is GRANTED.

All claims against Wexford are DISMISSED.

'Ibe claim against the

remaining Medical Defendants for an Eight Amendment violation, based on the theory that
placement of Hendrick in a double cell constitutes deliberate indifference to a serious medical
need, is DISMISSED.

A separate Order follows.

Date: September 29, 2015

THEODORE D. C

~

A

United States District Judge

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