Thomas-Bey v. Gilmore et al

Filing 46

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 3/28/2017. (c/m 3/29/2017 ah4s, Deputy Clerk) Modified on 3/29/2017 (ah4s, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

VAUN THOMAS-BEY, JR. #230137
Plaintiff,
v.

*

JANICE GILMORE

*

*

CIVIL ACTION NO. PJM-15-37

Defendants.
*****
MEMORANDUM OPINION
Inmate Vaun Thomas-Bey (“Plaintiff”) filed a self-represented Complaint for damages
under 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”) which relates to his
allegations that he failed to receive medical services while confined at the Western Correctional
Institution (“WCI”). He complains that in May of 2014, Dr. Ottey authorized him to have access
to a walker, along with a handicapped accessible cell and shower due to Plaintiff’s prior
neurological surgery at the University of Connecticut Hospital. Plaintiff claims that unknown
prison officials and Defendant Gilmore, a Wexford Health Sources (“Wexford”) Regional
Administrator, interfered with Dr. Ottey’s medical orders. He further contends that on May 29,
2014, a Nurse Practitioner issued a medical order for the use of a wheelchair, but he has been
unable to use the wheelchair because of the denial of a handicapped cell. ECF No. 1.
Defendants, by their counsel, filed a Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment, accompanied by a declaration and medical notes. ECF No. 17. Plaintiff
filed an Opposition response and Defendants filed a Reply. ECF Nos. 27 & 29. On November
20, 2015, Defendant Wexford’s Motion to Dismiss was granted. Defendant Gilmore’s Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment was denied. Gilmore and Plaintiff
were granted additional time to submit supplemental briefing. ECF Nos. 30 & 31.

Gilmore submitted supplemental briefing in support of her Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment.

ECF No. 35.

Plaintiff filed a Supplemental

Opposition and Gilmore filed a Reply. ECF No. 39 & 42. Oral hearing is not needed to resolve
the issues. See Local Rule 106.5 (D. Md. 2014). For reasons to follow, Defendant’s Gilmore’s
“renewed” Motion to Dismiss or for Summary Judgment, construed as a motion for summary
judgment, shall be granted. The Complaint shall be dismissed.
STANDARD OF REVIEW
II.

Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted

“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (emphasis added). Whether a fact
is material depends upon the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986). Accordingly, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment.” Id. “A
party opposing a properly supported motion for summary judgment ‘may not rest upon the mere
allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that
there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d
514, 522 (4th Cir.2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court must
view the evidence in the light most favorable to the nonmovant and draw all justifiable
inferences in his favor. Scott 550 U.S. at 378 (citation omitted); see also Greater Baltimore Ctr.
for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 721 F.3d 264, 283 (4th
Cir. 2013) (citation omitted). At the same time, the court must not yield its obligation “to
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prevent factually unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d
at 526 (citation and internal quotation marks omitted).
A federal court must liberally construe pleadings filed by self-represented litigants to
allow them to fully develop potentially meritorious cases. See Erickson 551 U.S. at 94; Cruz v.
Beto, 405 U.S. 319 (1972). The requirement of liberal construction does not mean the court can
ignore a clear failure in the pleadings to allege facts which set forth a claim, see Weller v.
Department of Social Services, 901 F.2d 387, 391 (4th Cir. 1990), or assume the existence of a
genuine issue of material fact where none exists. Fed. R. Civ. P. 56(c).
A federal court must liberally construe pleadings filed by self-represented litigants to
allow them fully to develop potentially meritorious cases. Erickson v. Pardus, 551 U.S. 89, 94
(2007). This Court reviews the facts and all reasonable inferences in the light most favorable to
the nonmoving party, particularly when that party is self-represented. See Scott v. Harris, 550
U.S. 372, 378 (2007); Gordon v. Leek, 574 F.2d 1147, 1151 (4th Cir. 1978).
ANALYSIS
Defendant Gilmore claims that Plaintiff has been provided all requested medical
equipment and accommodations, except for that of a wheelchair accessible cell. She affirms,
however, that the request was denied by WCI prison officials, and that she, as the Regional
Administrator for Wexford, is not involved in any way in determining an inmate’s eligibility for
a wheelchair accessible cell and did not deny Plaintiff’s request for such a cell. ECF No. 35, Ex.
A. Further, Gilmore maintains that Plaintiff was provided a cane and permitted to use a chair in
the shower as of May 1, 2014. She further argues that on May 9, 2014, Plaintiff was given a

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walker and as of May 21, 2014, he was permitted to use a handicapped shower. ECF No. 17,
Exs. B, C & D.
Gilmore and Assistant Warden Gelsinger affirm in their Declarations that a prisoner’s
request for a housing accommodation is considered, evaluated and either approved or denied by
WCI prison officials. They maintain that Gilmore is not responsible for approving, denying, or
ratifying physician’s orders for medical equipment or accommodations for prisoners with any
claimed disabilities nor does she determine an inmate’s eligibility for any such requested medical
equipment or accommodations. Indeed, it is the Division of Correction (“DOC”) policy that, to
qualify for a wheelchair accessible cell, the inmate must be wheelchair-bound. Gilmore argues
that if an inmate can ambulate in his cell with the use of grab bars, or if an inmate needs a
wheelchair only for long distances, the inmate will not qualify for a wheelchair accessible cell
per DOC policy. ECF Nos. 17, Ex. A; ECF No. 35, Ex. A. Gilmore affirms that she was not
involved in determining Plaintiff’s eligibility for or in denying his request for a wheelchair
accessible cell and the request for such a cell was denied by WCI prison officials because
Plaintiff did not meet the criteria for such a cell as he is not wheelchair-bound. Id.
With regard to the claims raised against Gilmore, the Eighth Amendment prohibits
Aunnecessary and wanton infliction of pain@ by virtue of its guarantee against cruel and unusual
punishment.

Gregg v. Georgia, 428 U.S. 153, 173 (1976).

AScrutiny under the Eighth

Amendment is not limited to those punishments authorized by statute and imposed by a criminal
judgment.@ De=Lonta v. Angelone, 330 F. 3d 630, 633 (4th Cir. 2003) citing Wilson v. Seiter, 501
U.S.294, 297 (1991). In order to state an Eighth Amendment claim for denial of medical care, a
plaintiff must demonstrate that the actions of the defendants or their failure to act amounted to
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deliberate indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 106
(1976); see also Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). 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 was 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).
As noted above, objectively, the medical condition at issue must be serious.1 See Hudson
v. McMillian, 503 U.S. 1, 9 (1992) (there is no expectation that prisoners will be provided with
unqualified access to health care). Proof of an objectively serious medical condition, however,
does not end the inquiry.
The subjective component requires Asubjective recklessness@ in the face of the serious
medical condition.

Farmer, 511 U.S. at 839-40.

ATrue subjective recklessness requires

knowledge both of the general risk, and also that the conduct is inappropriate in light of that
risk.@ Rich v. Bruce, 129 F. 3d 336, 340 n. 2 (4th Cir. 1997). AActual knowledge or awareness
on the part of the alleged inflicter…becomes essential to proof of deliberate indifference
>because prison officials who lacked knowledge of a risk cannot be said to have inflicted
punishment.=@ Brice v. Virginia Beach Correctional Center, 58 F. 3d 101, 105 (4th Cir. 1995),
quoting Farmer, 511 U.S. at 844.

If the requisite subjective knowledge is established, an

official may avoid liability Aif [he] responded reasonably to the risk, even if the harm was not
ultimately averted.@ Farmer, 511 U.S. at 844. Reasonableness of the actions taken must be
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A “serious medical need” is “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.” Iko, 535 F.3d at 241, citing to Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir.
1999).

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judged in light of the risk the defendant actually knew at the time. Brown, 240 F. 3d at 390;
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). Inmates do not have a
constitutional right to the treatment of their choice, Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.
1986), and disagreements between medical staff and an inmate over the necessity for or extent of
medical treatment do not rise to a constitutional injury. See Estelle, 429 U.S. at 105-06; Wright
v. Collins, 766 F.2d 841, 849 (4th Cir. 1985); see also Fleming v. LeFevere, 423 F.Supp.2d 1064,
1070-71 (C.D. Cal. 2006).
Title II of the ADA, 42 U.S.C. § 12131, et seq., prohibits qualified individuals with
disabilities from being excluded from participation in or being denied the benefits of the
services, programs or activities of a public entity. Cases interpreting the language of the ADA
and that of the Rehabilitation Act (“RHA”) have concluded that the applicable legal tests created
by these statutes are interchangeable. See Calloway v. Boro of Glassboro Dep't of Pol., 89
F.Supp.2d 543, 551 (D. N.J. 2000). To state a claim for violation of either the RHA or the ADA,
the plaintiff must show that (s)he (1) has a disability, (2) is otherwise qualified to participate in a
program, and (3) was denied the benefits of the program or discriminated against because of the
disability. See Millington v. Temple Univ. Sch. Of Dentistry, 261 Fed. App. 363, 365 (3rd Cir.
2008). A physical condition may qualify as a Adisability@ within the meaning of the ADA and
RHA because it Asubstantially limits one or more ... major life activities.@ 42 U.S.C. § 12102; 29
U.S.C. § 705(20)(B). Under the law in this circuit, to establish that he is disabled under the
ADA, Plaintiff must prove that: he has a physical or mental impairment; that this impairment

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implicates at least one major life activity; and the limitation is substantial. See Heiko v. Columbo
Savings Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006).
There is no dispute that Plaintiff suffers from grand mal epilepsy, an abnormal gait, and
glaucoma. Plaintiff’s exhibits show that on May 8, 2014, a Medical Assignment alert was
written for him to temporarily (one year) receive a lower bunk in a handicapped accessible cell
and the use of a handicapped accessible shower due to seizures. In May of 2014, he informed
medical personnel that he had received “paperwork” to be placed in a handicapped cell, to
receive access to handicapped shower facilities and to be provided a walker. There is no dispute
that he received access to the handicapped shower and walker, but not the handicapped cell. The
Provider Visit notation entered by Nurse Practitioner Mahler on May 21, 2014, indicates that she
was advised that Plaintiff did not meet the criteria for a handicapped cell. Gilmore affirms by
declaration that she is not responsible for approving, denying, or ratifying a physician’s orders
for medical equipment or accommodations for prisoners with any claimed disabilities nor does
she determine an inmate’s eligibility for any such requested medical equipment or
accommodations. Plaintiff, by verified Declaration affirms that he was never informed that
correctional staff had found him ineligible for the handicapped cell.
There is no dispute that Plaintiff was provided a cane, walker, and access to a
handicapped accessible shower. The issue before this Court is whether Plaintiff qualifies for a
handicapped accessible cell and who made the determination that he does not satisfy the criteria
for receiving such an assignment. Defendant Gilmore maintains that she has no involvement in
making such decisions, rather it is the prison staff who do so. Assistant Warden Gelsinger now
affirms that Gilmore is neither a healthcare provider nor a DOC Traffic Officer and she is not
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involved in determining an inmate’s eligibility for a wheelchair accessible cell. Plaintiff in turn
affirms that he has never been notified by WCI staff that he failed to qualify for such placement,
but he provides no direct evidence to rebut Gilmore’s asseverations that she had no person or
supervisory involvement in deciding who receives a handicapped accessible cell. For these
reasons, Gilmore’s dispositive motion shall be granted.
CONCLUSION
For the aforementioned reasons, the renewed dispositive motion, construed as a motion
for summary judgment IS GRANTED. A separate Order effecting the rulings made in this
opinion is entered herewith.

Date: March 28, 2017

______________/s/_________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE

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