Bonaparte v. Wexford Medical Sources Inc et al
Filing
14
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 11/30/2015. (kw2s, Deputy Clerk) (c/m 12/1/15)
FILED
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT LI{l)U~IP MARYLAND
OF
POR THE DISTRICT OF MARYLAND
1015 NOV30 A II: Oq
KENNETH BONAPARTE. #352447
CLERK'S OrmE
AT GREES8ELi
13
y
...!iT II n
i
Plaintiff
Case No.: GJH-15-738
v.
WEXFORD HEALTH SOURCES. INC.
KATHLEEN STORM.
NURSE PRACTITIONER
RN MELISSA
Defendants
MEMORANDUM
OPINION
Kenneth Bonaparte has filed a civil rights complaint under 42 U.S.c. ~ 1983. seeking
$500.000 in damages against Wexford Health Sources. Inc. ("'Wexford") and one of its
employees. Nurse Practitioner Kathleen Storm (collectively, the "Medical Defendants").
I
Bonaparte. a selt~represented prisoner housed at the Eastern Correctional Institution in Westover.
Maryland ("ECI"). alleges that he was provided inadequate medical care following a blow to the
head. As a result. Bonaparte claims he is suffering from headaches and a loss of vision. ECF No.
I at 3 & ECF No. I-I.
Pending is an unopposed2 Motion to Dismiss or. in the Alternative. Motion for Summary
Judgment filed by counsel on behalf of the Medical Defendants. ECF No. 10. No hearing is
I
The Clerk shall amend the docket to rellcet the full and proper spelling of Defendants' names.
2 Pursuant to the dictates of Rosehoro v. Garrison. 528 F.1d 309 (4th Cir. 1975). the Clerk of Court on July
21.2015. informed Bonapane that Defendants Wexford and Storm had filed a dispositive 1110tion;that he had
seventeen days in which to file written opposition to the motion: and that ifhc failed to respond. claims against
Wexford and Storm could be dismissed without further notice. ,)'el! ECF No. II. Bonaparte has chosen not to
respond.
See Local Rule 105.6 (D. Md. 2014). For
needed to resolve the issues raised in the Complaint.
the following
I.
reasons. the motion will be granted:'
LEGAL ANALYSIS
A. Standard of I{cvicw-Molion
10
Dismiss
. "The purpose ofa Rule 12(b)(6) motion [to dismiss]
complaint:'
MellI/me)'
and citation omitted).
v. CI/ecinelli.
is to test the sufficiency
616 F.3d 393. 408 (4th Cir. 2010) (internal quotation
A Rule 12(b)(6) motion constitutes
an assertion
even if the facts that plaintiff alleges arc true. the complaint
claim upon which relief can be granted:'
and view[
1 them
Fed R. Civ. P. 12(b)(6). Therej()re.
637 F.3d 503. 505 (4th Cir. 2011) (internal quotation
immunity.
a
facts in the
Bl'Oekin)!.lon v. Boykins.
marks and citation omitted).
claim they are entitled to dismissal
They further argue that Bonaparte's
that.
in considering
] as true the well-pled
in the light most !avorable to the plaintiff."
The Medical Defendants
by the Defendant
marks
fails. as a matter of law ... to state a
motion to dismiss under Rule 12(b)(6). a court must "accept[
complaint
ofa
Complaim
on the basis of qualifIed
merely alleges medical negligence
and
thus cannot be pursued because he failed to first file a claim in the Health Care Alternative
Dispute Resolution
Defendant
amenable
Wexford
Oftlce. a statutory
requirement
under Maryland
asserts that claims against it must be dismissed
to a civil rights action under 42 U.S.c.
law. ECl' NO.1 0 at 1-2.
because Wexford
is not
~ 1983.
I. Qualificd Immunity
Defendants
_'
claim entitlement
132 S.Ct. 1657. 1667-68
employee
to qualified
immunity.
citing Fi/al'sk)' \'. Delia. _
(2012). ECl' No. 10 at 18.19. Fi/al'sky overturned
U.S.
the denial of
~ Defendant "RN Melissa" was never identified and thus not served with the Complaint. Ilad this
been idcntitied and served. she also would be entitled to summary judgment based on the findings herein.
Thus. this claim is dismissed both for failure to prosecute and on the merits of the claim.
2
qualified immunity to an attorney who was retained by a city in California to assist in an internal
investigation concerning a firefighter's potential wrongdoing.ld.
at 1666. Defendants fail to
demonstrate that Fi/arsk)' has been extended to contractual health care providers working in
detention centers or correctional facilities. and the Court will not extend the holding in Fi/arsk)'
based on the record before it in the instant case.
2. Medical Negligence
The Medical Defendants also assert that the Complaint must be dismissed because
Bonaparte failed to comply with Maryland's llealth Claims Arbitration Act. ECl" No. I0 at 2021; see a/so Md. Code Ann .. Cts & Jud. Proc .. ~3-2A-02. Thc Act requires. as a condition
precedent to filing suit for "damages of more than the limit of the concurrent jurisdiction of the
district court:' that a plaintiff !irst Jile a claim with the Director of the Ilcalthcare Altcrnati,'e
Dispute Resolution Oftice. Id.. see a/so Md. Cts & Jud. Proc .. Code Ann. ~ 3-2A-04(a).
Maryland state district courts have exclusive original jurisdiction over "an action in contract or
tort. if the debt or damages claimed do not exceed $30.000. exclusive of prejudgment or
postjudgment interest. costs. and attorney's fees." Md. Cts & Jud. Proe.. Code Ann. ~4-401. The
instant Complaint seeks $SOO.OOO damages. Even if Bonaparte intended to additionally allege
in
a claim of medical malpractice pursuant to this Court's supplemental jurisdiction:
it is clear
from the face of the Complaint that it was filed on pre-printed forms for a civil rights action tiled
pursuant to 42 V.S.c. ~1983. and was construed as such by this Court. The asserted failure to
comply with the Health Claims Arbitration Act is not an adequate basis for dismissal of the
Complaint.
, See 28 U.S.c.
* 1367(c).
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3. Amenability to Suit under 42 U.S.c. ~ 1983
Defendant Wexford argues that the Complaint should be dismissed against it because as a
corporate entity Wexford cannot be held liable under 42 U,S,c. ~ 1983. ECl' No, 10 at 19-20,
The Court agrees. Under ~ 1983. liability is imposed on oOany
person who shall subject. or cause
to be subjected. any person.,.
to the deprivation of any rights, .. ," 42 U.S.c. ~ 1983. The
statute requires a showing ofpersollal
fault. whether based upon the Defendant's own conduct or
another's conduct in executing the Defendant's policies or customs. See Allmell v, Nell' York Cil)'
Dep 'I 1)j'Social Sen's .. 436 U,S, 658. 690 (1978); Wesl \', Alkills. 815 F,2d 993. 996 (4th
Cir.1987). rev 'd Oil oIher grounds. 487 U,S, 42 (1988) (no allegation of personal involvement
relevant to the claimed deprivation); Vinlledge v. Gihh.\, 550 F,2d 926. 928 (4th Cir.1977) (in
order for individual defendant to be held liable pursuant to 42 U.S.c. ~ 1983. it must be
'"affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's
rights, , ,") (quoting Bennel/ v, Gravelle. 323 F,Supp, 203, 214 (D.Md.1971). alfd, 451 F.2d
lOll
(4th Cir.1971».
Moreover. a private corporation is not liable under ~ 1983 for actions allegedly
committed by its employees when such liability is predicated solely upon a theory of respondeat
superior. See Auslin \'. Paramoul1f Parks, Inc.. 195 F,3d 715. 727-28 (4th Cir. 1999); Powell \',
SllOPCO
Laurel Co.. 678 F.2d 504. 506 (4th Cir. 1982); Clark v. Alwylwul Dep 'I of'Puhlie Sajely
and Correelional Sen'iees, 316 Fed, Appx, 279. 282 (4th Cir. 2009), Bonaparte's claim against
Wexford asserts no other theory ofliability, Accordingly. Plaintiffs claim against Defendant
Wexford is dismissed, Because the Court will consider matters outside of the pleading. the
arguments supporting Storm's dismissal will be construed as a Motion I()r Summary Judgment.
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B.
Standard of Review - Motion for Summary .Jud!:ment
"When matters outside the pleading are presented to and not excluded by the court. the
[12(b)(6)] motion shall be treated as one for summary judgment and disposed of as provided in
[Fed, R, Civ. 1',]56:' LaughlinI'. Melro. JVash. Airp0r/s AlIIh.. 149 F.3d 253, 260-61 (4th Cir.
1998) (alteration in original) (quoting Fed, R. Civ. 1'. 12(b)) (internal quotation marks omitted),
Under Fed. R, Civ. 1'. 56(a), the COUl1must grant summary judgment if the moving party
demonstrates thcrc is no genuinc issue as to any matcrial fact. and the moving party is entitled to
judgment as a matter of law,
In reviewing a motion for summary judgment, the Court views the facts in a light most
favorable to the non-moving party. Anderson \'. Liherly Lohhy. Inc., 477 U,S. 242, 255 (1986)
(citing Adicke.I' 1'. S. II. Kress & Co., 398 U,S. 144, 157 (1970)). Once a motion for summary
judgment is propcrly madc and supported. the opposing party has the burden of showing that a
genuine dispute exists. MalSl/shila Elec. Indl/s. Co.
1'.
l.enilh Radio CO/I} 475 U.S. 574. 586-87
..
(1986).
"[T]he mere existence of some alleged factual disputc bctwccn the parties will not dcfeat
an otherwise properly supportcd motion for summary judgment: thc rcquircmcnt is that there bc
no genuinc issue of material fact:' Anderson. 477 U.S. at 247--48 (alteration in the original).
A "material tact" is one that might affect the outcome ofa pat1y's case./d
at 248: see a/soJKC
Holding Co. \'. Wash. Sporls Ventures. Inc.. 264 FJd 459. 465 (4th Cir. 2001) (citing HoO\'enLewis \'. Caldera, 249 FJd 259, 265 (4th Cir. 2001 ». Whether a fact is considcred to be
"material" is determined by the substantive law, and "[o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude thc entry of summary
judgment:' Anderson. 477 U.S. at 248: accord HoO\'en-Lell'is, 249 F.3d at 265.
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I. Alleged Violation of the Eighth Amendment
The Eighth Amendment prohibits "unnecessary and wanton inl1iction of pain:' Gregg \".
Georgia. 428 U.S. 153. 173 (1976). and scrutiny under the Eighth Amendment "is notlimitcd to
those punishments authorized by statute and imposed by a criminal judgment:'
De
"[oil/a
\".
Angelone, 330 F. 3d 630. 633 (4th Cir. 2003). In thc context of denial of medical care. an Eighth
Amendment violation arises when the actions of a defendant. or the failure to act. amount to
deliberate indifference to a serious medical need. See E,/elle \'. Gamhle. 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 issue creating a substantial risk of serious
harm 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 \".Brennan. 511
U.S. 825. 837 (1994).
The medical records elearly establish that Defendant Storm was not indifferent to a
serious medical need, Bonaparte was seen by medical staff on February 13. 2015. immediately
after an accident in the prison kitchen. Bonaparte lost his grip on a tray that struck him in the
face. A small laceration to his left eyelid did not require stitches. and was eleaned and bandaged.
He did not lose consciousness. and his vital signs were normal. ECF No. 10-1 at 1-2. Bonaparte
did not complain of impaired vision. dizzincss. hcadachcs. or other problems. and thcrc was no
discussion at: or suspicion that. he had suffered a concussion. Id.
No problcms werc noted during his examination on February 17. 2015. Id. at 5. On
February 18.2015. Bonaparte complained of a headache and was givcn Motrin. Id. at 6. That
same evening. hc was seen by medical personnel !()r a complaint of dizziness. His gait was
nonnal and hc dcnied vomiting. M..
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Bonaparte was examined by Defendant Storm on February 26, 2015, for complaints of
migraine headaches and inlemlittent dizziness, lei. at 3--4. He denied loss of consciousness althe
time of the kitchen accident or at any time thereafter, and indicated that he returned to work the
day after the accident. Bonaparte also denied any loss of or impaired vision. nausea. vomiting.
fever, fatigue. or night sweats. and indicated his headaches had become less severe. !d.
Bonaparte was in no apparent dislress and showed no neurological deficit upon examination. He
was alert and oriented, his pupillary reaction was normal. and his extraocular movements were
intact. Jd. Storm ordered 500 mg Excedrin Tension Headache medication and instructed
Bonaparte 10 use cold compresses to the f(lrehead when he had a headache. Bonaparte was
instructed to tollow up if his condition worsened or if there was no improvement in ten days. Jd.
When Bonapm1e reported little reliet: Storm substituted the tension headache medication
with 250 mg of Excedrin Migraine. effective March 4. 2015. Jd. at 10. On March 8. 2015.
Bonaparte expressed concerns about the change in medication to a nurse. and asked to have his
activity restrictions lined. lei. at II. During Ihis visit his vital signs were normal. and he did not
complain of dizziness. vision problems. headache. nausea. vomiting or weakness. As there was
no indication of concussion. the restrictions were lined. ld.
Bonaparte complained of chest pains on March 16.2015. bUlmade no complaints of
headaches. dizziness. loss of or impaired vision. nausea. vomiting. or weakness. lei. at 13. On
March 2 1.2015. he tilled out a sick call slip stating that "for the past 7 or 8 days. the headaches
have been slight and not that bad:' but that his headache that day (on March 21) woke him and
that about 20-25 minutes later "it went away by itself." lei. at 15. On March 30. 2015. he
complained to a nurse of intennittent headaches with minimal relief on Excedrin Migraine. The
nurse noted his vital signs were normal and referred Bonaparte to a mid-level provider. Jd. at 16.
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Bonaparte was again seen on April I. 2015. complaining ofa headache.ld. at 18-19. On
May 4. 2015. he was seen by both a nurse and physician !IJrchronic care follow up for asthma.
esophageal disease, and hyperlipidemia. His vital signs remained stable. He reported headaches.
but made no complaints of dizziness. loss of or impaired vision. nausea. vomiting. or weakness
at the time of either visit, nor was there any discussion or suspicion of concussion. /d at 20-22.
He complained about a rash on May 21. 2015. /d at 23. He also indicated on May 24. 2015. that
he needed a dental filling. /d at 25.
Bonaparte visited the medical unit on three occasions in June. but never complained of
headaches, loss of or impaired vision. nausea. vomiting. or weakness. nor was there any
discussion or suspicion of concussion. Id. at 26-29. On June 12.2015. hc complained of
dizziness due to the heat in his housing unit. Id. at 27. Thc hcat was also blamed for his asthma
flare-up on June 15. 2015./d
at 29.
Nothing in the rccord suggests that Bonaparte continued to sutTer from his accidcnt. or
that Defendant Storm and other health care providers failed to consider and treat his headaches
and other unrelated mcdical complaints. Indeed. the record strongly suggests that Bonaparte did
not sufTer a concussion or other objectively serious injury as a rcsult of the accident. but that he
sufTers intermittent headaches from some unrelated cause. That condition is frequently monitored
and is kept under control with headache medication.
Bonaparte is not entitled to unqualified acccss to hcalth care. see Doris r. lVi/lialllson.
208 r.Supp.2d 631. 633 (N.D.W.V. 2002) (quoting IllIdson \'. Mdlillian.
503 U.S. I. 9 (1992».
and mcrc disagrccment with the course oftreatmcnt providcd. without more. does not state an
Eighth Amcndment claim. See Tay/or r. Barnell, 105 F.Supp.2d 438. 487 (E,D. Va, 2000) (citing
WrightI'. Collins, 766 F.2d 841, 849 (4th Cir. 1985». Even vicwing the evidence in the light
8
most favorable to the Plaintiff, Defendant Storm was not indifferent to a serious medical need.
Thus, the Eighth Amendment claim against Defendant Storm is dismissed.
II.
CONCLUSION
For these reasons, the unopposed Motion filed on behalf of the Medical Defendants.
construed both as a Motion to Dismiss and as a Motion for Summary Judgment, is granted in a
separate Order.
Date:
11/30/;;2015
GEORGE JARROD HAZEL
United States District Judge
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