Taylor v. Wexford Medical

Filing 39

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 3/30/2017. (kns, Deputy Clerk)(c/m 3/30/17)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

CHRISTOPHER TA YLOR,
Plaintiff,
v.
WEXFORD MEDICAL,
MARYLAND CORRECTIONAL TRAINING
CENTER,
DR. CONTAHNIMELY,
DONNIE GROSSNICKLE, Nurse Manager,
LORI COLE, Nurse Manager,
KELLY MURRAY, P.A.,
RICHARD SAMPONG, P.A.,
MATTHEW CARPENTER, P.A.,
KEVIN MCDONALD, P.A.,
DR. LAROZA,
P.A. JANINE, and.
NURSE MANAGER BECKY, I

Civil Action No. TDC-15-2395

Defendants.

MEMORANDUM OPINION
Plaintiff Christopher Taylor, currently confined at Maryland Correctional Training Center
("MCTC"), is bilaterally hearing impaired, with profound hearing loss in his left ear and severe
hearing loss in his right ear.

Taylor has filed suit pursuant to 42 U.S.C.

9

1983

("9

1983")

against MCTC; Wexford Health Sources, Inc. ("Wexford"), the health services provider for
MCTC; and individual Wexford medical staff asserting that they violated his constitutional rights

Taylor incorrectly captions Defendant Wexford Health Sources, Inc. as "Wexford Medical"
and Defendant Lora Cole, R.N. as "Lori Cole," and incompletely captions Defendant Janine
Griffith, P.A. as "P.A. Janine" and Defendant Rebecca Barnhart, R.N. as "Nurse Manager
Becky." The Court refers to these Defendants by their corrected or complete names and will
instruct the Clerk to amend the case caption accordingly.

by failing adequately to treat his hearing loss, at times by failing to provide him with any hearing
aids, and at other times by failing to provide him with hearing aids for both ears. MCTC has
filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment.

Wexford and

the individual medical staff defendants (collectively, "the Wexford Defendants") have also filed
a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment.
now ripe for disposition, and no hearing is necessary.

Those motions are

See D. Md. Local R. 105.6 (2016). For

the reasons set forth below, MCTC's Motion is granted, and the Wexford Defendants' Motion is
granted in part and denied in part.

BACKGROUND
In June 2010, Taylor informed the MCTC medical provider, at that time a company other
than Wexford, that he was essentially deaf in his left ear and hearing impaired in his right ear.
He asked to be provided with hearing aids. In July 2010, Taylor was referred to an audiologist.
Seven months later, in March 2011, he was fitted with a hearing aid for his right ear. In October
2011, Taylor was transferred from MCTC to Patuxent Institution ("Patuxent").

In approximately

February 2012, Patuxent medical staff inadvertently broke Taylor's hearing aid while trying to
clean it.

Taylor made multiple unsuccessful

requests to have the hearing aid replaced.

Throughout this time period, Taylor also repeatedly requested a second hearing aid, for his left
ear.
On May 22, 2012, after having no working hearing aid for at least three months, Taylor
was transferred back to MCTC.

Although his MCTC medical intake paperwork stated that he

was hearing impaired and needed hearing aids, Taylor did not receive hearing aids upon his
return.

Taylor then began to make repeated requests for a replacement for his broken right

2

hearing aid, explaining that he could not hear announcements by correctional officers and was
missing meals because he could not hear meal calls.
On July 1, 2012, Wexford became the MCTC medical services provider.

On July 12,

2012, Taylor was seen by Wexford staff, who ordered a referral for an audiology consultation.
On July 18, 2012, Defendant Dr. Contah Nimely examined Taylor and concluded that he had a
bilateral hearing impairment, with the hearing loss more severe in his left ear than in his right.
Taylor told Dr. Nimely that he had had no working hearing aid for several months and that he
had difficulty communicating without hearing aids.
On October 3, 2012, Dr. Ross Cushing, an audiologist, examined Taylor.
determined that Taylor's

Dr. Cushing

right hearing aid was damaged beyond repair and recommended

authorization for a new one. On November 2, 2012, Taylor asked Defendant Janine Griffith,
P.A. about the status of his hearing aids.

On November 30, 2012, Dr. Nimely approved the

issuance of one hearing aid to Taylor. He received that hearing aid on December 17, 2012. At
Taylor's request, Dr. Cushing fitted the hearing aid for his left ear.
Beginning in February 2013, Taylor again began to ask about receiving a second hearing
aid, based in part on his belief that the audiologist would be repairing and returning the damaged
right hearing aid. On February 18, 2013, after Taylor asked Griffith about the second hearing
aid, she consulted with "central consult coordinators," who informed her that Taylor would
receive only one hearing aid. Wexford Mot. Dismiss Ex. 1 ("Wexford R.") at 21, ECF No. 27-1.
On June 17,2013, Taylor told Defendant Richard Sampong, P.A., during an examination, that he
wanted his right hearing aid back and that he had difficulty hearing without the second aid. On
August 21,2013, medical personnel decided to consult with an audiologist to address the issue of
Taylor's right hearing aid.

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On December 11,2013, Taylor was again seen by Dr. Cushing. When Taylor expressed
his frustrations about not having two hearing aids, Dr. Cushing informed Taylor that only one
hearing aid had been authorized.
inmate second hearing aid."

Nevertheless, Dr. Cushing recommended, "Consider giving

Wexford R. at 30.

On December 16, however, an update to

Taylor's medical records instructed medical staff to "clarify" with Taylor that the Department of
Corrections "only provides one aid." Id. at 31.
On March 30, 2014, Taylor reported problems with his single hearing aid. On April 5,
2014, Taylor told Griffith that the left hearing aid was not working even after a battery change.
At a May 28, 2014 sick-call visit, Taylor informed medical staff that his left hearing aid was still
not working and complained that he had not been allowed to use amplification devices that his
family had sent because he had not had a working hearing aid for a long period of time. The
following day, Defendant Lora Cole, R.N. cleaned the hearing aid and replaced the battery, but
the aid still would not work. Cole told Taylor that an audiology consultation had been requested.
On June 5, 2014, Taylor attended a patient care conference with Cole, another medical
staff member, the MCTC warden, and another prison representative.

At that meeting, the

Warden approved Taylor's use of the amplification devices sent by his family until Taylor's
hearing aid was repaired, and the parties discussed the possibility of an expedited audiologist
consultation.

On June 18, 2014, Dr. Cushing met with Taylor and repaired his left hearing aid.

Based on that same examination,
hearing aid for his right ear."
recommended

Dr. Cushing stated in his report, "I recommend a second
Am. Compi. Ex. 1 at 2, ECF No. 4-1.

Dr. Cushing also

that, although the devices provided to Taylor by his family did not provide

adequate amplification, Taylor should be allowed to keep and use one of those devices.
Cushing's June 2014 report, however, did not result in Taylor receiving a second hearing aid.

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Dr.

On March 26, 2015, when Taylor again began to report problems with his left hearing
aid, Defendant Rebecca Barnhart, R.N. requested an audiology referral.

On April 7, 2015,

Defendant Kelly Murray, P.A. again ordered an audiology referral for Taylor. On May 8, 2015,
Taylor again saw Barnhart to ask about the status of his audiology referral.
another request for a consultation.

Barnhart put in

Finally, on July 2, 2015, Dr. Cushing saw Taylor and

concluded that the left hearing aid was in complete disrepair and had to be replaced. On July 9,
2015, Taylor saw Defendant Matthew Carpenter, P.A. to ask about the status of his replacement
hearing aid. In response, Carpenter requested another audiology consultation.
On August 7,2015, Taylor filed his original Complaint in this case. A few days later, on
August 13, 2015, Taylor received his replacement left hearing aid from Dr. Cushing.

On

September 3, 2015, Taylor reported to medical staff that his hearing aid was not functioning
properly at work, where he is in close proximity to heavy machinery.
based on Taylor's

On September 14, 2015,

report that he needed the settings on his hearing aid adjusted, Murray

requested an audiology consultation.

On December 9, 2015, Taylor was seen by Dr. Cushing,

who adjusted the device. At that session, Taylor again requested a second hearing aid.
On March 3, 2016, Taylor reported that his hearing aid had again stopped working, and
an audiology consultation was ordered.
Amended Complaint in this case.

On April 26, 2016, Wexford was served with Taylor's

On May 19, 2016, Dr. Dolph Druckman, on behalf of

Wexford, conducted a review of Taylor's file to "facilitate ongoing care for claim of hearing
loss."

Wexford R. at 65. After noting that Taylor had a February 2011 audiogram showing

profound hearing loss in his left ear and severe hearing loss in his right ear, and that Taylor had
repeatedly requested a working hearing aid as well as a second hearing aid, Dr. Druckman
recommended that a new audiogram be conducted.

5

He recommended

against authorizing a

second hearing aid "[u]nless there is a current Audiological opinion (objectively based) that a
second aid is necessary." Id.
The following day, on May 20, 2016, Dr. Cushing saw Taylor again and repaired the left
hearing aid. In his report, Dr. Cushing noted that in addition to the February 2011 audiogram
which had prompted the original issuance of a hearing aid, he had also performed an audiogram
on Taylor in December 2012, when he had first fitted Taylor for a hearing aid, which revealed
that Taylor's hearing loss was "more symmetrical." Wexford R. at 66. As part of his May 20,
2016 examination, Dr. Cushing performed a third audiogram, which showed "severe bilateral
mixed hearing loss," results that were "consistent" with the 2012 test results. Id. Based on these
,

test results, Dr. Cushing concluded that it was medically necessary for Taylor to have two
hearing aids. Dr. Cushing fitted Taylor for his second hearing aid that same day.
DISCUSSION
On August 7, 2015, Taylor filed suit in this Court, naming only Wexford as a defendant.
In that original Complaint, Taylor asserted that because he was provided only one hearing aid,
and that hearing aid frequently malfunctioned

and was not repaired or replaced in a timely

manner, he has endured long periods of time when was "essentially deaf' in prison, which not
only was "taxing both physically and mentally," but also placed him at "substantial risk."
Compl. at 2-3, ECF NO.1.

Specifically, he asserted that he was at risk of being subjected to

violence because he could not hear, and thereby possibly avoid, other inmates' altercations.
noted that his prison job required him to be around heavy machinery

He

and forklifts, an

environment that was more dangerous when he could not hear safety horns or other alarms. He
also noted that he had on several occasions missed meal calls or other correctional officer

6

announcements.

Taylor further alleged that despite these risks, he was told that under its

contract, Wexford was required to provide only one hearing aid.
On December 2, 2015, Taylor amended his Complaint to add MCTC and individual
Wexford medical staff as defendants.

Both MCTC and the Wexford Defendants now seek

dismissal of, or summary judgment on, the Amended Complaint.
I.

Legal Standards
A.

Motion to Dismiss

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.

Although

courts should construe pleadings of self-represented litigants liberally, Erickson v. Pardus, 551
U.S. 89, 94 (2007), legal conclusions or conclusory statements do not suffice, Iqbal, 556 U.S. at
678. 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.
Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. ofComm'rs

of Davidson Cty., 407

F .3d 266, 268 (4th Cir. 2005).
B.

Motion for Summary Judgment

Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the
moving party demonstrates there is no genuine issue as to any material fact, and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
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.

7

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.
346 F.3d 514, 522 (4th Cir. 2003).

Bouchat v. BaIt. Ravens Football Club, Inc.,

The nonmoving party has the burden to show a genuine

dispute on a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986).

A fact is "material" if it "might affect the outcome of the suit under the

governing law." Anderson, 477 U.S. at 248.

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. Id. at 248-49.

II.

MCTC
In its Motion, MCTC seeks dismissal because it is entitled to Eleventh Amendment

immunity, it is not a proper party to suit under 42 U.S.C. ~ 1983, and Taylor failed to exhaust
administrative remedies. Although MCTC's Eleventh Amendment argument would appear to
implicate this Court's jurisdiction, see Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998) (noting
that "the Eleventh Amendment is jurisdictional in the sense that it is a limitation on the federal
court's judicial power"), the Court must tum first to the statutory argument that MCTC is not a
"person" within the meaning of ~ 1983. Vt. Agency of Nat. Res. v. Us. ex reI. Stevens, 529 U.S.
765, 779 (2000) (finding that the question of whether a statute permits a cause of action against
states should be addressed before the question of whether the Eleventh Amendment bars the
cause of action); Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000) (noting that pursuant to
Vermont Agency of Natural Resources, the district court should have dismissed claims against
state officials in their official capacities on the grounds that they were not persons within the
meaning of ~ 1983 rather than on Eleventh Amendment grounds).

8

Section 1983 makes liable "[ e]very person" who, under color of state law, deprives an
individual of constitutional rights. 42 U.S.C. ~ 1983. State agencies are not persons within the
meaning of the statute.

Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).

Because

MCTC is a unit of the State of Maryland operated by the Maryland Department of Public Safety
and Correctional Services, it is not a person amenable to suit under ~ 1983. See Clark v. Md.
Dep't of Pub. Safety & Corr. Servs., 316 F. App'x 279, 282 (4th Cir. 2009) (holding that the
Maryland Department of Public Safety and Correctional Services is not amenable to suit under
~ 1983); Allison v. Cal. Adult Auth., 419 F.2d 822, 822-23 (9th Cir. 1969) (holding that a state
prison is not a person under ~ 1983). Taylor's claim against MCTC is therefore dismissed with
prejudice.

See

us. Airline

Pilots Ass'n v. Awappa, LLC, 615 F. 3d 312,320

(4th Cir. 2010)

(stating that when any alteration to a cause of action would be "futile" and have "no impact on
the outcome of the motion to dismiss," the district court need not grant leave to amend).
Accordingly,

the Court need not, and thus does not, address MCTC's

alternative

arguments for dismissal.
III.

The Wexford Defendants
In their Motion, the Wexford Defendants assert that (1) Taylor's claims are barred in part

by the statute of limitations; (2) the claims against Defendants Donnie Grossnickle, R.N., Kevin
McDonald, P.A., and Dr. Laroza must be dismissed because Taylor makes no allegations against
those individuals; (3) the claims against Wexford must be dismissed because Wexford is not
subject to suit under ~ 1983; and (4) all of Taylor's claims fail because Taylor has failed
adequately to allege or, if his medical records are considered, is unable to establish that the
Wexford Defendants'

treatment

of his hearing loss violated his rights under the Eighth

Amendment to the United States Constitution.

9

A.

. Statute of Limitations

The Wexford Defendants assert that any claims arising more than three years before the
filing of the Complaint on August 7, 2015 are barred by the statute of limitations.

Because

S

1983 does not contain its own statute of limitations, courts must draw from the most analogous
state law cause of action to determine the appropriate statute of limitations.
State's Atty's Off., 767 F.3d 379,388

Owens v. BaIt. City

(4th Cir. 2014). Maryland law provides a general three-

year limitations period for civil actions. Md. Code Ann., Cts. & Jud. Proc.

S 5-101

(West 2015).

Thus, the Wexford Defendants are correct that to the extent that Taylor asserts claims based on
events prior to August 7, 2012, those claims would be barred by the statute of limitations.
However, this limitation has only a minor impact on Taylor's claims because Wexford became
. the MCTC medical provider on July 1, 2012, leaving only five weeks of medical treatment
outside the scope of this lawsuit.

Moreover, the Court notes that events pre-dating August 7,

2012 may constitute background evidence on claims arising after that date.

See Nat'l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (noting, in the context of an employment
discrimination claim, that unlawful acts that cannot be the basis for suit because they are outside
the statute of limitations may still be used "as background evidence in support of a timely
claim").
B.

Individual Defendants

Although Taylor has named Grossnickle, McDonald,

and Laroza as defendants, he

nowhere names those individuals in his allegations, nor do they appear in any of the medical
records submitted by either side. Because there is no apparent factual basis for Taylor's claims
against Grossnickle, McDonald, or Laroza, those defendants will be dismissed.

10

See Iqbal, 556

U.S. at 678 (stating that 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").
C.

Wexford

Wexford seeks dismissal because, as a private corporation carrying out a governmental
function such as the delivery of medical care in a prison setting, Wexford may be sued under

S

1983 only if the alleged constitutional deprivation results from a policy, custom, or practice of
the entity, a requirement it alleges has not been met. See Monell v. Dept. of Soc. Servs. of the
City of New York, 436 U.S. 658, 690 (1978).
asserting that "I was told that Wexford's

However, Taylor has alleged such a policy by

contract mandates that they are only obligated to

provide one device." Compi. at 2. Thus, dismissal is not warranted.
Even if the Motion is construed as seeking summary judgment based on the submitted
evidence, the medical records, particularly a notation made on February 18, 2013 that "central
consult coordinators ...

advised that only 1 hearing aid will be repaired/replaced"

and another

notation made on December 16, 2013 that "DOC only provides one aid," support the inference
that Wexford had a policy of providing only one hearing aid to an inmate, and that the policy
was followed in Taylor's case, even after a second hearing aid was expressly recommended by
the audiologist.

Wexford R. at 21, 31. Thus, based on Taylor's allegations and the record on

this Motion, Wexford is properly subject to suit under
D.

S

1983.

Eighth Amendment

The Wexford Defendants also contend that Taylor has not asserted a viable claim that the
denial of hearing aids violated his Eighth Amendment rights.

Because both parties have

submitted evidence on this issue for the Court's review, this aspect of the Wexford Defendants'
Motion is construed as a Motion for Summary Judgment. See Fed. R. Civ. P. 12(d).

11

The Eighth Amendment prohibits cruel and unusual punishment.

U.S. Const. amend.

VIII. An inmate's Eighth Amendment rights are violated when there is "deliberate indifference
to [his] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976); Jackson v. Lightsey,
775 F.3d 170, 178 (4th Cir. 2014).
component-that

A deliberate indifference claim has both an objective

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

inmate's health and safety-and
the condition and risk.

a subjective component-that

the official subjectively knew of

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").
To be objectively "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 Iko v.

Shreve, 535 F.3d 225, 241 (4th Cir. 2008)) (internal quotation marks omitted). However,
deliberate indifference "does not require proof that the plaintiff suffered an actual injury." Heyer
v. United States Bureau of Prisons, 849 F.3d 202,210 (4th Cir. 2017). Instead, it is enough that
the defendant's actions exposed the plaintiff to a 'substantial risk of serious harm. '" Id (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
As for the subjective component, "[a]n 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 F.3d at 178 (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994)) (internal quotation marks omitted).

"[I]t is not enough that an official should

have known 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."

12

Id

(citations omitted). "[M]any acts or omissions that would constitute medical malpractice will not
rise to the level of deliberate indifference."

Id. Thus, "[ d]eliberate indifference is "more than

mere negligence, but less than acts or omissions done for the very purpose of causing harm or
with knowledge that harm will result." Scinto v. Stansberry, 841 F.3d 219,225 (4th Cir. 2016)
(internal quotation marks and alterations omitted).

Under this standard, a mere disagreement

between an inmate and a physician over the appropriate level of care does not establish an Eighth
Amendment violation absent exceptional circumstances.

Id.

The failure to provide basic corrective devices may amount to deliberate indifference to a
serious medical need. See Cummings v. Roberts, 628 F.2d 1065, 1068 (8th Cir. 1980) (holding
that, inter alia, a prison's alleged failure to give an inmate a wheelchair after he suffered a back
injury was sufficient to support an Eighth Amendment claim); Newman v. Alabama, 503 F.2d
1320, 1331 (5th Cir. 1974) (noting that a prison's alleged failure to provide "eyeglasses and
prosthetic devices" contributed to an Eighth Amendment claim). A number of courts, including
the United States Court of Appeals for the Fourth Circuit, have held that hearing aids fall within
the category of corrective devices the deprivation

of which could give rise to an Eighth

Amendment claim. See Large v. Washington Cty. Del. Ctr., 915 Fold 1564 at
(unpublished

* 2 (4th

table decision) (holding that "under appropriate circumstances,

Cir. 1990)

the refusal to

supply a hearing aid to a convict could constitute deliberate indifference to a serious medical
need"); Gilmore v. Hodges, 738 F.3d 266, 275-76 (11th Cir. 2013) (holding that the denial of a
hearing aid to an inmate could form the basis of an Eighth Amendment claim because "[t]he
ability to hear is a basic human need materially affecting daily activity and a substantial hearing
impairment plainly requires medical treatment by a physician");

Cooper v. Johnson, 255 F.

App'x 891, 892 (5th Cir. 2007) (unpublished) (holding that a prisoner who suffered from tinnitus

13

that was treatable with a hearing aid had adequately pleaded an Eighth Amendment claim when
he was denied a hearing aid based on the prison's policy of not providing one if the inmate could
hear out of one ear); Wheeler v. Butler, 209 F. App'x 14, 15 (2d Cir. 2006) (unpublished)
(holding that where a prisoner alleged that he had a severe hearing impairment that had been
classified by the prison as a physical handicap, and the prison had confiscated and never returned
his hearing aids, the district court erred in granting summary judgment to defendants on the
prisoner's Eighth Amendment claim).
Because an Eighth Amendment claim based on the deprivation of a hearing aid is a viable
legal theory, the question is whether the present record establishes as a matter of law that the
Wexford Defendants were not deliberately indifferent to Taylor's serious medical need such that
they would be entitled to summary judgment.

As to whether Taylor had a serious medical need,

there is no dispute that the Wexford Defendants were aware that Taylor had been diagnosed with
profound hearing loss in his left ear and severe hearing loss in his right ear, and that his hearing
loss mandated treatment.

See Gilmore, 738 F.3d at 275 (stating that "(s]ubstantial hearing loss

that can be remedied by a hearing aid can present an objectively serious medical need"). What is
disputed is whether the Wexford Defendants' treatment of Taylor's serious medical condition
could be deemed deliberately indifferent.
The Wexford Defendants argue that the medical records show that Taylor was provided
with regular care for his hearing loss, such that Taylor's
disagreement

claim stems either from his

with the course of treatment Wexford provided or, at worst, from Wexford's

negligence. See Jackson, 775 F.3d at 178 (stating that neither a disagreement between an inmate
and a physician over proper medical care nor medical-staff negligence is sufficient to show
deliberate indifference).

However, when viewed in the light most favorable to Taylor, the record

14

can be read to show that the Wexford Defendants systematically delayed and denied Taylor
adequate treatment for his hearing loss and were thus deliberately indifferent to that medical
need.
As to delays in treatment, the record of Taylor's medical visits reveals that his requests
for replacement of, or repairs to, his only hearing aid were regularly followed by months-long
inaction.

Upon his return to MCTC in 2012, Taylor had to wait over seven months before

receiving a working hearing aid-six

of those months under Wexford's watch-leaving

him

entirely without any medically necessary hearing assistance as he sought to reintegrate into the
MCTC prison environment.

In 2014, Taylor reported on March 31 that his hearing aid had

stopped working and did not receive a replacement until June 18, nearly three months later. In
2015, Taylor had two extended periods with no working hearing aid. Taylor reported a problem
with his hearing aid on March 26,2015, which was not addressed by the audiologist until July 2,
2015, when the hearing aid was found to be beyond repair. Taylor did not receive a new hearing
aid until August 13, 2015, over four months after his initial complaint.

Then on September 3,

2015, Taylor informed medical staff that his hearing aid was malfunctioning

when he was

around the heavy machinery at his prison job. It was not until December 9, 2016, three months
later, that his hearing aid was adjusted to enable him to use it at work.
Construed in Taylor's favor, the record suggests that Taylor has spent over a year at
MCTC without a functional hearing aid as a result of delays in repairing or replacing his only
hearing aid, even though the Wexford Defendants were well aware that a hearing aid was, for
Taylor, a medical necessity.

Indeed, the lack of a functioning hearing aid placed Taylor at a

substantial risk of harm. See Gilmore, 738 F.3d at 276 (noting that "an inmate's inability to hear
may render him exceedingly vulnerable to danger and harm from his unperceived surroundings"

15

and that "untreated hearing loss could do serious harm to physical and mental health").

Such

individually extended and cumulatively remarkable delays are a sufficient basis, at this early
stage of the litigation, to allow Taylor's Eighth Amendment claim to proceed.

See Smith v.

Smith, 589 F.3d 736, 739 (4th Cir. 2009) (holding that because deliberate indifference can take
the "form of delay or interference with treatment once prescribed,"

the district court had

improperly dismissed a prisoner's Eighth Amendment claim based on his allegation of a IS-day
delay in receiving treatment for a foot infection); see also Heyer, 849 F.3d at 211 ("[T]he mere
fact that prison

officials

provide

constitutionally adequate treatment.").

some treatment

does not mean they have provided

Nor, in light of the pattern over several years, can the

Court at this point conclude that such delays can be attributed to mere negligence.

Discovery

may reveal that the length of these delays in providing a working hearing aid were, relative to
Taylor's disability and its consequences, not inordinate. See McGowan v. Hulick, 612 F.3d 636,
640 (7th Cir. 2010) ("Delay is not a factor that is either always, or never, significant. Instead, the
length of delay that is tolerable depends on the seriousness of the condition and the ease of
providing treatment.").
Defendants.

It may establish that the delays were not attributable to the Wexford

However, as the factual record stands now, it reveals only that there were

substantial delays, not their causes or consequences.

Summary judgment

in the Wexford

Defendants' favor at this time would therefore be inappropriate.
As for denial of treatment, there is evidence that Wexford did not merely pursue a
treatment plan with which Taylor disagreed-providing

him with only one hearing aid-but

that

it pursued a treatment plan at odds with the medical recommendation of its own audiologist, Dr.
Cushing.

In December 2013, Dr. Cushing suggested that Taylor receive a second hearing aid,

but it was not provided.

In June 2014, Dr. Cushing repeated the recommendation, which again

16

went unheeded.

Not until May 2016, after the Wexford Defendants had been served with the

Amended Complaint, was Dr. Cushing's recommendation implemented.

Notably, Dr. Cushing

remarked that Taylor's May 2016 audiology results, which indicated that two hearing aids were a
medical necessity, were consistent with Taylor's test results from December 2012, almost four
years earlier.

Thus, when the facts are viewed in the light most favorable to Taylor, there is

evidence to support the conclusion that the Wexford Defendants failed to provide a second
hearing aid known to be medically necessary for several years, dating back at least to June 2014,
when Dr. Cushing made the express recommendation for it, and possibly back to the December
2012 audiogram. Such evidence could potentially support an Eighth Amendment claim. See
Gilmore, 738 F.3d at 275-76; Large, 915 F.2d 1564 at

*

1.

There is also evidence that the Wexford Defendants'
recommendation

failure to follow Dr. Cushing's

was the result not of a competing assessment of medical necessity, but of a

blanket policy against providing more than one hearing aid to an inmate. On two occasions, in
February 2013 and December 2013, medical staff advised that only one hearing aid would be
provided, once referencing the Department of Corrections as the source of that rule.

Such a

policy, apparently based on the premise that an inmate who can hear out of one ear has no
medical need to hear out of the second ear, could also implicate Eighth Amendment concerns.
Cf Cooper, 255 F. App'x at 891-92 (holding that the district court erred in dismissing an Eighth
Amendment

claim based on the denial of a hearing aid pursuant to a state policy against

providing one to an inmate who can hear out of one ear). It may be that discovery will establish
that Taylor's need for a second hearing aid was not "serious" within the meaning of the Eighth
Amendment, or that the Wexford Defendants' failure to provide him with a second hearing aid
occurred under circumstances that do not amount to deliberate indifference.

17

But because such

determinations

cannot be made on the present record, the Wexford Defendants'

Motion for

Summary Judgment is denied.
CONCLUSION
For the foregoing reasons, MCTC's Motion is granted, and the claims against MCTC are
dismissed with prejudice.

The Wexford Defendants' Motion is granted as to the claims against

Donnie Grossnickle, Kevin McDonald, and Dr. Laroza, all of whom are dismissed as defendants.
The Wexford Defendants' Motion is denied in all other respects. Now that this case will proceed
to discovery, Taylor may renew his Motion to Appoint Counsel.
ECF No.5,

See Mots. Appoint Counsel,

17, & 22; Order Denying Mots. Appoint Counsel, ECF No. 30. A separate Order

shall issue.

Date: March 30, 2017
THEODORE D. CH AN
United States District

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