Barnes v. Ottey et al

Filing 21

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 6/5/2015. (kns, Deputy Clerk)(c/m 6/5/15)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JUAN SYLVESTER BARNES

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Plaintiff

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v

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DR. OTTEY, et al.
Defendants

Civil Action No. DKC-14-2904

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MEMORANDUM OPINION

Defendants Dr. Collin Ottey, Dr. Ava Joubert, Peggy Mahler, Beverly McLaughlin, and
Wexford Health Sources, Inc.,1 filed a Motion to Dismiss the above-captioned complaint as
amended. ECF No. 9. Following Defendants’ motion and this court’s denial of his request to
engage in discovery, Plaintiff filed a pleading which was docketed as a second amended
complaint (ECF No. 19) which Defendants move to strike (ECF No. 20). Because Plaintiff’s
pleading is more appropriately construed as an Opposition Response, Defendants Motion to
Strike shall be denied and it will be considered in the context of the Motion to Dismiss. The
court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014). For the
reasons stated below, Defendants’ Motion to Dismiss shall be granted and the complaint will be
dismissed.
Background
Plaintiff Juan Barnes (“Barnes”), a prisoner confined to North Branch Correctional
Institution (“NBCI”), alleges he is being denied proper medical treatment for chronic pain in his
hip and leg. ECF Nos. 1 and 3. Barnes broke his right femur which was repaired surgically with
a metal rod in 2008. ECF No. 3 at p. 3. He claims the surgery to repair the fracture was
complicated and he was told he was lucky it did not have to be amputated. Id. Following the

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The Clerk shall correct the docket to reflect the full and proper spelling of Defendants’ names.

surgery, Barnes was prescribed Percocet for pain management and he claims that his doctors told
him the pain would worsen over time. Id.
Barnes states he was first seen on February 2, 2013, by Dr. Joubert, who ordered x-rays
but denied a prescription for pain medication. Barnes alleges that Joubert never informed him of
the x-ray results even though she was informed on April 9, 2013, that Barnes has “degenerative
changes and reduced joint space in his hip.” ECF No. 3 at p. 4. Barnes characterizes this as a
serious bone disease that will eventually require hip replacement surgery and is consistent with
his complaints of pain. Id. Barnes claims the x-ray results were deliberately withheld from him
so he would not make a request to be seen by an orthopedic surgeon. ECF No. 1 at p. 3.
Barnes states that in May of 2014, he was provided a prescription for Ultram 50 mg. He
claims the prescription was taken from him by Peggy Mahler on August 9, 2014, after a two
week period. Beverly McLaughlin, then erroneously told Barnes that the prescription was not
being provided due to the pharmacy’s policy. Barnes claims this information was false. He
further alleges that McLaughlin prescribed “muscle pills” which were ineffective in treating his
pain because his pain is “bone pain” not “muscle pain.” ECF No. 3 at p. 5.
Barnes claims he is a chronic care patient with pain levels that significantly affect his
ability to engage in daily activities, making his assignment to a top bunk and an upper level tier
inappropriate because it requires him to climb stairs. ECF No. 3 at p. 6. Barnes asserts that
since being in prison he has been provided with “headache medications” to treat his hip pain as
well as muscle relaxers, meloxicam, Motrin, Tylenol, Ibuprofen, and Naproxen. ECF No. 1 at p.
3. In addition, Barnes admits receiving Baclofen and Elavil, which he states are “psychiatric
disorder medications they claim works for pain,” but does not relieve his pain. Id. at p. 4.
Barnes claims it is deliberate indifference to a serious medical need to refuse to treat chronic pain
and to limiting treatment to methods so ineffective they amount to no treatment. Id.

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As relief, Barnes seeks an Order from this court requiring Defendants to “stop giving
inadequate medication” and to send him to a hospital so it can be determined if the metal rod
should be removed from his leg. ECF 1 at p. 4. Barnes also seeks monetary damages in the
event this matter proceeds to trial or Defendants do not comply with an Order granting injunctive
relief. Id.
Standard of Review
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 Supreme Court recently articulated the proper framework for analysis:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain
statement of the claim showing that the pleader is entitled to relief,” in order to
“give the defendant fair notice of what the … claim is and the grounds upon
which it rests,” Conley v. Gibson, 355 U.S. 41, 47 (1957). While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc.,
40 F.3d 247, 251 (7th Cir. 1994), a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do, see Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a legal conclusion couched as a
factual allegation”). Factual allegations must be enough to raise a right to
relief above the speculative level, see 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (hereinafter Wright
& Miller) (“[T]he pleading must contain something more … than … a
statement of facts that merely creates a suspicion [of] a legally cognizable right
of action”), on the assumption that all the allegations in the complaint are true
(even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S.
506, 508, n. 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327(1989) (“rule
12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)
(a well-pleaded complaint may proceed even if it appears “that a recovery is
very remote and unlikely”).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnotes omitted).
This standard does not require Defendants to establish “beyond doubt” that Plaintiff can
prove no set of facts in support of his claim which would entitle him to relief. Id. at 1968-69.
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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 1969. 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).
Eighth Amendment Claim
The Eighth Amendment prohibits “unnecessary and wanton infliction of pain” by virtue
of its guarantee against cruel and unusual punishment. 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) 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 to either 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 “subjective recklessness” in the face of the serious
medical condition. See Farmer, 511 U.S. at 839B 40. “True subjective recklessness requires
knowledge both of the general risk, and also that the conduct is inappropriate in light of that
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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.” 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. See 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).
Analysis
Defendants assert that, taken as true, Barnes’ claims state at most one for medical
malpractice which cannot proceed because he has failed to comply with the provisions of the
Healthcare Malpractice Act. ECF No. 9-1. With respect to Barnes’ Eighth Amendment claim,
Defendants state that the failure to provide Barnes with the health care of his choice does not
state a claim of deliberate indifference especially in light of Barnes’ admission he was seen and
treated by health care providers. Id. at p. 4. Defendants further claim that Barnes’ Complaint is
premised on his disagreement with the medical care provided which does not amount to
treatment that shocks the conscience. Id. at p. 6. Specifically, Barnes disagrees with the choice
of pain medication provided and the choice of specialists to whom he was referred.
In a pleading which was docketed as a supplemental complaint, Plaintiff states he
continues to be denied pain management. ECF No. 19 at pp. 1 – 2. He further argues that the
metal rod in his leg is “way past due to be removed” and several requests he has made to be seen
by an orthopedic surgeon to be evaluated for its removal have been denied. Id. at p. 3. Barnes
argues that Defendants are seeking dismissal of the instant case despite the enormous amount of
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pain he is suffering and the grounds upon which they seek dismissal are frivolous. Id. at pp. 3 –
4.
A prisoner’s right to medical treatment consonant with the Eighth Amendment’s
prohibition against cruel and unusual punishment is “limited to that which may be provided upon
a reasonable cost and time basis and the essential test is one of medical necessity and not simply
that which may be considered merely desirable.” Bowring v. Godwin, 551 F.2d 44, 47-48 (4th
Cir. 1977) (emphasis added in original). Barnes’ claim is not that he is denied all care, but
denied the specific medications he believes are necessitated by his condition and the surgery he
believes is necessary for his leg. To the extent Barnes has not been informed of test results or
educated about the proper approach for chronic pain treatment, “an inadvertent failure to provide
adequate medical care does not amount to deliberate indifference.” Estelle v. Gamble, 429 U.S.
97, 105 (1976).

Barnes’ disagreement with the medical decisions made regarding pain

medication and referrals to outside specialist are simply “[d]isagreements between an inmate and
a physician over the inmate’s proper medical care [which] do not state a § 1983 claim unless
exceptional circumstances are alleged.” Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985),
citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3rd Cir.1970).

There are no exceptional

circumstances present in this case inasmuch as it is apparent that Barnes is in fact receiving care
as a chronic care patient and is receiving pain medication.2

Thus, Barnes’ claims as to

Defendants Dr. Collin Ottey, Dr. Ava Joubert, Peggy Mahler, and Beverly McLaughlin must be
dismissed for failure to state a claim.
Barnes’ claim as to Wexford Health Sources, Inc., must also be dismissed as it is a claim
based on 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). Liability of

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The court notes that while the facts alleged in this case are not sufficient to state a constitutional
claim, a prolonged refusal to address the underlying cause of chronic pain may in fact state a claim in the future.

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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). 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). Where, as here, the medical care providers have not engaged in conduct that posed a
pervasive and unreasonable risk of constitutional injury to Barnes, their employer cannot be
found liable as a supervisory official.
A separate Order follows.

Date:

June 5, 2015

/s/
DEBORAH K. CHASANOW
United States District Judge

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