Openshaw v. Wexford Medical Department et al

Filing 11

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 2/16/2017. (c/m 02/16/2017 jf3s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

WILLIAM OPENSHAW,
Plaintiff,
v.
Civil Action No. TDC-15-3521

WEXFORD MEDICAL DEPARTMENT,
DAMIEN FAY ALL and
DR. GETACHEW,
Defendants.

MEMORANDUM OPINION
Self-represented

Plaintiff William Openshaw, who is currently confined at Patuxent

Institution ("Patuxent") in Jessup, Maryland, filed this Complaint pursuant to 42 U.S.C. ~ 1983,
alleging that Defendants Wexford Health Sources, Inc. ("Wexford"), incorrectly named in the
Complaint

as "Wexford

Medical Department";

Complaint as "Damien Fayall"; and Asresahegn

Damon Fayall, incorrectly

named in the

Getachew, identified incompletely

in the

Complaint as "Dr. Getachew," violated his civil rights in connection with providing medical
treatment for hepatitis C. Defendants filed a Motion to Dismiss on March 15,2016.

Openshaw

was notified that he had the right to file an Opposition to the Motion, and that failure to do so
could result in dismissal of the case, but he has submitted no such brief. For the reasons set forth
below, the Motion to Dismiss shall be granted.
BACKGROUND
The facts set forth in the Complaint are sparse. Openshaw was incarcerated at Roxbury
Correctional

Institution

("RCI") in 2009, at Maryland Correctional

Institution-Hagerstown

("MCIH") in 2011, at the Metropolitan Transition Center ("MTC") in 2014, and at Patuxent in
2014.

Each of these institutions was aware that he suffers from hepatitis C.

Nevertheless,

Openshaw asserts that each correctional facility "keep [s] passing the buck to the next prison"
with respect to treatment for hepatitis C, and that prison officials have sent him to Bon Secours
Health System ("Bon Secours") for treatment. Compi. at 3. He seeks "the right medication so I
won't be in physical pain anymore" and asks that he be treated at the University of Maryland
Hospital rather than at Bon Secours. Id.
DISCUSSION
Defendants offer two reasons that the Complaint should be dismissed.

First, they assert

that Openshaw has failed to state a claim against Wexford because there is no vicarious liability
under 42 U.S.C.

S

1983. Second, they claim that Openshaw has not alleged sufficient facts to

establish that any Defendant deprived him of his constitutional rights.
I.

Legal Standard
To defeat a motion to dismiss under Rule 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.
510 U.S. 266, 268 (1994); Lambeth v. Bd. ofComm'rs
Cir. 2005).

2

Albright v. Oliver,

of Davidson Cly., 407 F.3d 266,268 (4th

II.

Vicarious Liability
42 U.S.C.

S

1983 allows individuals to sue in federal court any person who violates their

federally protected rights while acting under color of state law. Private companies that employ
individuals acting under color of state law are considered "persons" for the purposes of
but they cannot be held liable for violating a plaintiffs

S

1983,

rights solely because they employ an

individual who committed an unlawful act. Austin v. Paramount Parks, Inc., 195 F.3d 715, 728
(4th Cir. 1999). Rather, they can be sued under
company's custom or policy.

Id.

S

1983 only if the violation results from the

Cf Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91

(1978) (holding that there is no vicarious liability for

S

1983 claims against local government

entities).
Thus, while Wexford is responsible for "the delivery of medical care in a prison setting,"
a duty that Defendants acknowledge is "a governmental function," Defs Mem. at 4, ECF No. 92, absent a particular custom or policy that led to the deprivation of Openshaw's constitutional
rights, Wexford cannot be held liable for his claims under

S

1983. See Austin, 195 F.3d at 728.

Here, however, Openshaw has alleged no specific custom or policy of Wexford that resulted in
the loss of any rights. Because the Complaint does not include facts sufficient to support a claim
against Wexford, the claim against Wexford is dismissed.
III.

Eighth Amendment
The Eighth Amendment to the United States Constitution prohibits unnecessary

and

wanton infliction of pain by virtue of its guarantee against cruel and unusual punishment.

See

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

This safeguard not only bears on "those

punishments authorized by statute and imposed by a criminal judgment," but equally extends to
"the treatment a prisoner receives in prison and the conditions under which he is confined."

3

De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003) (quoting Helling v. McKinney, 509
U.S. 25, 31 (1993)).

Thus, claims concerning the denial or adequacy of medical care to

incarcerated persons arise under the Eighth Amendment, because the deliberate indifference to
an incarcerated

person's

infliction of pain."

serious medical needs "constitutes

the 'unnecessary

and wanton

Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg, 428 U.S. at

173)).
An Eighth Amendment claim based on denial of medical care has both objective and
subjective components.

To state such a claim, an incarcerated plaintiff must establish that,

"objectively assessed, he had a sufficiently serious medical need to require medical treatment,"
and that the defendant prison official was, "subjectively aware of the need and of its seriousness"
but "nevertheless acted with deliberate indifference to it by declining to secure available medical
attention."

Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 104 (4th Cir. 1995).

indifference"

"Deliberate

entails more than ordinary negligence or lack of due care for the prisoner's

interests or safety; it instead requires that a prison official actually "knows of and disregards an
excessive risk to inmate health or safety."

Farmer v. Brennan, 511 U.S. 825, 837 (1994);

De'Lonta, 330 F.3d at 634 (stating that deliberate indifference requires "that a prison official
actually know of and disregard an objectively serious condition, medical need, or risk of harm").
"Actual knowledge or awareness" on the part of prison staff is essential to an Eighth Amendment
claim for denial of medical care, because prison officials who lacked knowledge of a medical
risk cannot be said to have inflicted cruel and unusual punishment by withholding treatment.
Brice, 58 F.3d at 105 (citing Farmer, 511 U.S. at 844)). Once the requisite subjective knowledge
is established,

an official may avoid liability by demonstrating

that he or she responded

reasonably to the risk, even if the harm was not ultimately averted. Farmer, 511 U.S. at 844.

4

Under this stringent standard, Openshaw has failed to state an Eighth Amendment claim
for deliberate indifference against either Fayall or Getachew (the "Individual Defendants").

The

allegation that "[t]hey all keep trying to send me to Bon Secours," CompI. at 3, cannot state a
claim under the Eighth Amendment because a prison inmate "does not enjoy a constitutional
right to the treatment of his or her choice."

De'Lonta v. Johnson, 708 F.3d 520, 526 (4th Cir.

2013). A disagreement between an inmate and prison staff over proper treatment does not rise to
the level of deliberate indifference "unless exceptional circumstances are alleged."

Wright v.

Collins, 766 F.2d 841, 849 (4th Cir. 1985); see also De'Lonta, 708 F.3d at 526 n.4 (stating that
"the essential test is one of medical necessity and not simply that which may be considered
desirable").

Consequently, unless Openshaw can allege facts demonstrating that the treatment

available at Bon Secours is not adequate to address his serious medical needs, and that the
Individual Defendants knew this was the case yet persisted in referring him to Bon Secours for
treatment, Openshaw's

preference for treatment at the University of Maryland Hospital is

insufficient to state a claim under the Eighth Amendment.
As for the allegations that "they keep passing the buck" and that Openshaw has not been
provided with "the right medication" for his hepatitis C, resulting in physical pain, CompI. at 3,
these claims are also insufficient to state a plausible claim that any Individual Defendant acted
with deliberate indifference to his serious medical needs.

Preliminarily,

Openshaw has not

alleged any personal participation by Fayall or Getachew in the alleged failure to provide
appropriate medication or other treatment.

Liability under ~ 1983 attaches only upon personal

participation by a defendant in the constitutional violation.
(4th Cir. 2001).

Trulock v. Freeh, 275 F.3d 391, 402

Without specific facts about each Individual Defendant's participation in the

alleged deprivation of rights, Openshaw has not stated a plausible claim against the Individual

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Defendants.

In addition, although Openshaw

claims that each pnson

at which he was

incarcerated was aware that he suffers from hepatitis C and that he was not given the right
medication, he has not alleged sufficient facts to support the conclusion that any Individual
Defendant was subjectively aware of Openshaw's medical need for a particular medication yet
was deliberately indifferent to that need. Because the Complaint does not contain sufficient facts
to support a conclusion that the Individual Defendants acted with deliberate indifference

ill

responding to Openshaw's medical condition, the Motion to Dismiss will be granted.
Defendants, however, have not provided any indication of what medical treatment for
hepatitis C, if any, has been provided to Openshaw, when it was provided, and whether it has
adequately addressed Openshaw's medical needs.

Because the Court cannot conclude that no

facts could be asserted that would state a plausible claim of deliberate indifference to a serious
medical need, the Complaint will be dismissed without prejudice.
CONCLUSION
For the foregoing

reasons,

Defendants'

Motion to Dismiss

Complaint is DISMISSED WITHOUT PREJUDICE.

A separate Order shall issue.

Date: February 16,2017
THEODORE D. C
United States Distric

6

is GRANTED.

The