J.F and D.F. Minors et al v. Correct Care Solutions, LLC et al

Filing 33

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/2/2017. (rss, Deputy Clerk)

" S

IN TIIF: lINITF:D STATF:S DISTRICT COURT
FOR TilE DISTRICT OF MARYLAND
. ,
Soutltem D;I';s;ou

'J1

.J.F. and n.F. t'.\' rd.
*
CRAIG and DEBORAH ANN BENTON,
Plaintiffs,
Case No.: G.JH-16-2177

*

\'.

CORRF:CT CARE SOLUTIONS,
et :II.,

LLC

*
*

Defendants.

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*

*

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MF:MORANDUM

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OPINION

This case arises out of the death of Melissa Mac Benton ("Ms. Benton"). a 30-year-old
woman. while she was in the custody of the St. Mary's County Detention Center (the "Detention
Center')

Ms. Benton's minor children, .1.1'. and D.F .. by their guardians and next Ifiends Craig

and Deborah Ann Benton. and Ms. Benton's adult daughter. Brittany Fleshman. bring suit
against Correct Care Solutions. LLC ("CCS"). Conmed Ilealth Care Management. Inc.
("Conmed"). and individual health care stan'l (collectively, "Ilealth Care Provider Defendants").
as well as individual correctional stan~ (collectively. "Correctional Defendants") at the Detention

I In addition
to CCS and Conmcd. Plaintiffs bring suit against 12 individual health care stalTmcmhcrs:
Dr. Vabian
Lcwitt Padell. Certified Nursing Assistant C'"CN"")/Ccrtilied Medication Technician ("CMT") James Cawley.
Registered Nurse (""R.N"') Melissa "enderson. Physician"s Assistant r"p.A.") Nancy Sidorowicz. eNi\ Penny King.
eNA Ashley Sampson. CNA Kristy Randolph. eNA Latoya Beaulllont. eNA Brandoll lIossclrodc. eNA Tara
King. Licensed Clinical Social Worker ("I.C5W")
Lisa Winkler. and R.N. Melissa Perdue. (individuals collectivcly
are "Individual
Ilcalth Care Provider Defendants:"
together with CCS and COllmed they arc "I fealth Carc Provider
Defendants.").

~ Plaintiffs also bring suit against 14 correctional stalTmemhers:
Corporal Gretchen Irby. Officcr Monica Thomas.
Officer Jason Smith. Officcr Janc Thompson. Officer Sehijc Boyd. Oflicer Michael Laballowski. Jr.. Officer
Catherinc Poole. Officcr Benjamin Luffey. Corporal Daniel Catlett. Officer Maurice Gogul. CFe Sherry lIarrison.
Inmate Services Coordinator
Casey Long. Sgl. Bruce Raley. and Sgt. Anthony Fel1\vick. (collectively
"Correctional

Defendants").

Center. alleging claims under 42 U.S.c. ~ 1983 and Maryland state law. Presently pending
bellJre thc Court is a Motion to Dismiss by Individual Defendants 1'. King. Ilossclrodc. T. King.
Randolph. Beaumont. and Winkler. ECF No. 14. and a separate Motion to Dismiss by Individual
Defendant Cawley. ECF No. 21.

0

hearing is necessary. See Loc. R. 105.6. For the lollowing

reasons. DetCndants' Motions to Dismiss arc granted. in part. and denied. in part.

I.

BACKGROUND
Melissa Mac Benton entered the St. Mary's Detention Center on October 8. 2013 to await

transfer to the Maryland Department of Corrections to begin serving a seven year sentence. ECF
NO.4 '146. At the time. Ms. Benton was 36 years old and sunered li'OJllvarious drug addictions.
bipolar disorder. unexplained weight loss. and a host of health issues. !d ~ 45. When Ms. Benton
arrived at the Detention Center. Certitied Nursing Assistant (""CNA") Penny King conducted an
intake examination:'

ECF NO.4

'i 48.

Ms. King noted that Ms. Benton suffered Irom high blood

prcssure. bipolar disorder. unexplained weight loss. an enlarged colon. and drug addiction. Id
Ms. King further noted that Ms. Benton was supposed to receive tollow-up medical care Itll' her
enlarged colon. Id. Ms. King also reported that Ms. Benton was an intravenous drug user and had
taken unprescribed Oxycodone the previous day. Id Ms. King's report stated that Ms. Benton
"will be placed on Benzo protocol4 per Conmed:' Id.
On or about October 9. 2013. Ms. Benton underwent a second health assessment by
members of the medical stan: a Suicide Prevention Screening by Defendant Licensed Clinical
Social Worker (""I.CSW") Winkler. and an interview bv the inmate services coordinator. ECF
J

While she was in custody. Ms. Bentoll received care from individuals employed by Defendants Correct Care

Solutions

("CCS")

and COllmcd

Health

Management.

is a Kansas limited

liability

company

that provides

EeF NO.4

all times relevant

to the action.

and provide
.j

at

7. At

ces

this protocol

for Biotcchnology

Center.

refers to a method of withdra\val

Information.

Il'il/u/l'mnl/

According

to the Amended
Conmcd.

i\/1I1111geme111.

(last visited February 21. 2(17).

2

Complaint.

a Maryland

and COl1mcd had contracts to employ

health care services to inmates at the Detention

In this context.

Ccntcr

Inc. C'ConlTlcd").

health care to inmates through

ces

corporation.

health care providers

/d.

management

for users of bcnzodiazepines.

https://\v\\w.ncbi.nlm.nih.gov/booksINBKJ

National
10652/

NO.4 at 16. The health assessment
heroin. Xanax. and Oxycodone
Physician's

noted that Ms. Renton had a long history of addiction

and was currently experiencing

Orders signed at the time stated that stafTwere

deterioration

occurs such as unstable blood pressure ...

~ 51. Following
immediate

the Suicide Prevention

Screening.

action for Ms. Benton. but scheduled

the week of October

vitamins.

Amended

Complaint

persistent

her complaints

identifies

Id.

vomiting. or dehydration'"

her Ii)!"a further mental health assessment

ECF No.4'1

I.ibrium.

fiJr

withhcld

11.2013.

vomiting and tremors.

without examination.

Id.

Ms. Benton was to

cramps. yet no Imodium was

fiJr two days. Id. '157. Clonidine

only once. Id. '154. Ms. Benton infilfllled medical staffofher
were dismissed

however. the

in which Ms. Renton received sporadic

or none at all. Id. '154. 55. 57. 67. For example.

was allegedly

Phenergan.

53. Despite these instructions.

a number of instances

Id. '155. I'henergan

By October

49. 51.

LCSW Winkler did not recommend

receive 4 mg of Imodium three times a day fiJr her abdominal

administered

'I'i

to "notify clinician if possible

detox protocol. she was prescribed

and Imodium.'

doses of these medications.

administered.

Id.

14.2013.

As part of Ms. l3enton's
Clonidine.

opioid withdrawal.

to

,I~

Ms. l3enton began experiencing

was

stomach pains. but

55. 58.
severe symptoms.

including

ECF No. 4 ~ 56. lIer blood pressure had c1evated to 153/1 06. Id.
to receive 0.1 mg of Clonidine

repeat

'1 57.

Although

Ms. Benton was supposed

pressure.

that order was not carried out. Id. ~ 57. Ms. Benton refused all of her meals on October

12 and 13. 2013. Id. ~ 58. She also complained

of chest pain and suffered

Her pulse was 48 beats per minute and her oxygen saturation
low level. Id. Despite Ms. Benton's

condition.

to treat the high blood

fi'om diarrhea.

was 90%. indicating

the health and correctional

Id. ~ 59.

an abnormally

stafTsimply

told her

.5 According 10 the Complaint. Libriurn is used to treat anxiety and acute \vithdrawal: Phernergall is used to treat
nausea and vomiting. Clonidinc is used to treat high blood pressure: Imodiulll is used 10 treat diarrhea. ECF No. 4 ~
53.

3

..to relax:'

and gave her some "Gatorade

to hydrate:'

October 9th. iI' Ms. Benton' s oxygen saturation

Order Ihlln

Id. Under the Physieian's

level lell below 92%. care providcrs

to call 91 I. Id. ~ 51. But no onc did.

instructed

A numbcr of Detcntion

Ccntcr hcalth care providers

and correctional

ofliccrs conducted

numerous

cell checks on Ms. Benton over the course of two days. and witnessed

profusely.

having abdominal

cramps. complaining

ECI' NO.4

n 60-62.

However.

64-69.

Benton received additional
CNA Beaumont

checked

to ensure that Ms.

vital signs and noted that Ms. Benton's

'i

Cawley and CNA Hosselrode

least twice" and witnessed

her "vomiting

both administered

profusely.

but failed to call li)r medical help. Id
On the morning of October

deliver her medication.

ECI' NO.4

13.2013.

'1 71.

having abdominal

to Ms. Benton "at

cramps. and refusing all

'i~
65-66.
Delendant

Cawley entered Ms. Benton's

cell to

Id. She reached out and crushed the cups he was

to hand hcr. Id Ms. Benton linally took the medication.

and began rocking back and Il)rth. Id. Mr. Cawley allegedly
attention

medication

Id. ~ 63. On October

Mr. Cawley stated that Ms. Benton "did not seem to see

him" and was in "an altered mental status:'
attempting

pulse was a

62: lOCI' No. 4-4 at 13. 176 Ms. Benton asked if

she could go to the hospital. but her request was denied as "not indicated:'
12. CNA/CvIT

See

Id. On October 12. 2013. Defendant

medical care or intervention.
Ms. Benton's

her "vomiting

of chest pains. and refusing all meals:'

none of them took any measures

low" 36 beats per minute. Id.

"dangerously

meals:'

wcrc

lor Ms. Benton. but rather. issued a memorandum

thcn grabbed her mattress

made no efforts to obtain medical
..that Ms. Benton not be allowed out

of her cell. except li)r her shower. because she was unsteady on her leet:' Id By October

Pin cites to documents liIed on the COUl1's electronic tiling system (CMIECF)
by that system.

h

4

13. Ms.

refer to the page numbers generated

Benton's

blood pressure bad reached

Id'i

1631109 and her heart rate was 106 beats per minute.

73.
On October

13.2013

at approximately

5:55PM. Ms. Benton was found non-responsive

her cell. ECF No. 4 ~ 79. She was not breathing
transported

to St. Mary's

autopsy report coneluded
and hypertensive
death:'

Ilospital

in

and had no pulse. Id Ms. Benton was

a half hour later. where she was pronounced

that Ms. Benton "died of cardiac arrhythmia

dead.ld

The

due to myocardial

heart disease. Chronic drug and aleohol abuse were contributing

fibrosis

causes of

ECF No. 4-4 at 16.
Melissa Mae Benton's

minor children . .1.1'. and D.F .. bring this action by thcir guardians

and ncxt friends. Craig and Deborah Benton. Melissa' s parents. Also named as a Plainti ITis
Brittany fleshman.

Melissa's

Eighth and/or Fourteenth

adult daughter.

Amendment

The Plaintiffs assert claims ftlr: I) negligence.

violations

under 42 U.S.c.

death against the Health Care Provider Defendants.
Amendment

violations

under 42 U.S.c.

against the Correctional
Plaintiffs'

Defendants.

waiver of arbitration

*

Resolution

ornce

1983. and Ill) wrongful

as well as IV) Eighth and/or Fourteenth

1983. V) gross negligence.

ECF NO.4. Accompanying

before the Maryland

Office. ECF No. 4-3. an Ordcr of Transler

*

II)

and VI) wrongful

Plaintiffs'

Health Care Alternative

fi'om thc Maryland

Complaint

ofQ.ualified

is

Disputc Rcsolution

Health Care Alternative

to this Court. lOCI' No. 4-5. and a Certificate

death

Dispute

Expert and Report

from Dr. Robert L. Cohen. ECF No. 4-4.
Individual

Defendants

1'. King. Hosselrode.

filed a Motion to Dismiss Plaintiffs'
James Cawley filed a separate
All other Defendants

Amended

T. King. Randolph.

Complaint.

ECF No. 14. Individual

Motion to Dismiss Plaintiffs'

Amended

have filed an Answer to the Amended

Complaint.

5

Beaumont.

Complaint.

and Winkler
Defendant
lOCI' No. 21.

ECF Nos. 15. 16. and 32.

Plaintiffs filed a Consolidated Response in Opposition on August 26. 2016. ECF No. 22.
Defendants filed their Reply on September 12.2016. ECF No. 23. Defendants request that the
Court dismiss Counts II and III against P. King. Hosselrode. T. King. Randolph. Cawley. and
Beaumont.) and dismiss all counts against Lisa Winkler. The Motions to Dismiss arc now ready
for review.
II.

STANI>ARI> OF REVIEW
Defendants may ..test the adequacy of a complaint by way of a motion to dismiss under

Rule 12(b)(6):' Prelieh \'. Med Res.. llle.. 813 F. Supp. 2d 654. 660 (D. Md. 2(11) (citing
Germl/Ill'. Fox. 267 F. App'x 23 J. 233 (4th Cir. 2(08).

Motions to dismiss for failure to state a

claim do "not resolvc contests surrounding the facts. the merits of a claim. or the applicability of
defenses:' Prelieh. 813 F. Supp. 2d at 660 (citing E,hrardl

I'.

City orGoldshoro.

178 F.3d 231.

243 (4th Cir. 1999). To overcome a Rule 12(b)(6) motion. a complaint must allege enough facts
to state a plausible claim for relief Ashcrofi \'. hlhl/I. 556 U.S. 662. 678 (2009). A claim is
plausible when ..the plaintiff pleads factual content that allows the Court to draw the reasonable
infcrenee that the defendant is liable for the misconduct alleged:' Id
In evaluating the sufficiency of the Plaintiffs' claims. the Court accepts factual
allegations in the complaint as true and construes the factual allegations in the light most
favorable to the Plaintiff See Alhright

1".

()Jil-er. 510 U.S. 266. 268 (1994): Ll/mheth

I'.

I3d or

Comm 'rs ofD{{\'it/soll Oy.. 407 F.3d 266. 268 (4th Cir. 2(05). However. the complaint must
contain more than "legal conclusions. elements of a cause of action. and bare assertions dcvoid

These Defendants originally asked the Court to dismiss all counts against them. ECF No. 14: ECF No. 21.
However. ill their Reply. ECF No. 23. Defendants "collccdc[dJ that Plaintiff" were not required to submit claims
against the CNA/CMT Defendants to the Ileahh Claims Altemative Dispute Resolution Ortiec:" as relevant to the
survival actiort/negligcnce claim in Count I. Therefore. the analysis here addresses only the ~ 1983 claim and
7

wrongflll death claim (Counts II and III) as to Defendants P. King. Ilossclrode. T. King. Randolph. Cawley. and
Beaumont.
.

6

of furthcr factual enhancemenl." Nell/e/ Che\Tole/.

LId \', ConslIlI/l!/',,[filirs,coll/,

Inc,. 591 FJd

250.255 (4th Cir. 2009), The court should not aflirm a motion to dismiss fiJI' failurc to statc a
claim for rclicf unlcss "it is clear that no relief could bc granted under any set of facts that could
bc proved consistcnt with the allegations:' GE In\'. I'r;m/e

I'I"cell/el1/ I'"r/nl!/'s /I \'. l'"rkl!/'.247

FJd 543. 548 (4th Cir. 2001) (citing 11..1. Inc. \'. Nor/lnl'es/el'11 Bell Td Co, 492 U,S. 229. 24950).
III.

ANALYSIS
A. Constitutional

Claims

In Count II of the Complaint. Plaintiffs assert violations of the Eighth and/or Fourteenth
Amendment of the United States Constitution pursuant to 42 U,S,c.

* 1983, Section 1983

provides lor certain governmental liability resulting from constitutional violations. stating that:
Every person who. under color of any statute. ordinancc.
regulation. custom. or usage. of any Statc or Territory or the
District of Columbia. subjects. or causes to be subjected. any
citizen of the United States or other person within the jurisdiction
thereof to the dcprivation of any rights. privileges. or immunities
sceurcd by the Constitution and laws. shall be liable to thc party
injured in an action at law. suit in cquity. or other propcr
procccding , , ,
42 U.S.c.

* 1983, The Eighth Amcndment.

spccifically. prohibits "cruel and unusual

punishment:' such as those involving the "unncccssary and wanton intliction of pain:' Gregg \'.
Georg;".

428 U.S. 153. 173 (1976), Thc Suprcmc Court of thc Unitcd Statcs has hcld that

"deliberatc indillerence to serious mcdical needs of prisoners" constitutes wanton intliction of
pain. regardless of whether thc indillercncc is "manilested by prison doctors in their response to
the prisoner's nceds or by prison guards in intcntionally dcnying or delaying access to medical
care or intentionally interfering with the treatmcnt once prescribed:' Es/elle \'. Gall/hie. 429 U.S.
97.104-05

(1976), Thus. thc Individual Defendants argue principally that Plaintiffs' allegations
7

regarding their conduct do not "risc to the level of de libcrate indifference'" ECF No. 14-1 at 6;
ECF No. 21-1 at 6.
Not every allcgation of inadequate medical trcatment establishes a claim undcr the Eighth
Amendment. Estelle. 429 U.S. at 105. "Deliberate indifferencc is a vcry high standard - a
showing of mere ncgligcnce will not mcet it." Shieldl'

1".

Prince George's Cly.. No. GJII-15-

1736.2016 WL 4581327. at *6 (D. Md. Sept. I. 2(16) (quoting Grayson \'. Peed. 195 F.3d 692.
695 (4th Cir. 1999)). Nor will an "inadvcrtcnt failure to providc adequate mcdical care" surtice.
ESlelle. 429 U.S. at 105. To prevail on a "dclibcrate indifference" claim. Plaintiffmust provc two
clements: ..( 1) that the deprivation of a basic human nced. as an objective matter. was
surticiently serious: and (2) that. when viewed Irom a subjective perspectivc. prison orticials
acted with a sufficiently culpable statc of mind'" King

1".

United Siaies. 536 F. App'x 358. 360

(4th Cir. 2013). Additionally. "[110 constitutc deliberatc indifference to a serious mcdical nced .
.the trcatment la prisoner receives] must be so grossly incompetent. inadequate. or excessive as
to shock the conscience or to be intolcrable to fundamental lairncss .... Id at 361 (alteration in
original).
The Fourth Circuit has explaincd that ..two slightly different aspccts of an otlicial's state
of mind" must be shown in order to satisfy the subjcctive component ofdelibcratc indiffcrencc.
Iko \'. Shrel'e. 535 F.3d 225. 241 (4th Cir. 20(8). First. the prison otlicialmust

have known ofa

scrious risk of harm. }'oung \'. City (IrAti. Ranier. 238 F.3d 567. 575-76 (4th Cir. 20(1). Second.
the otliccr must have also recognizcd that his or her actions wcrc insufficient or "inappropriatc in
light of the risk'" Parrish ex rei. Lee

I'.

Cle\'elwul. 372 F.3d 294. 303 (4th Cir. 2(04). It is not

cnough ..that the officcrs should haw recognized" thc risk of harm or inadequacy of thcir

8

actions: they actually must have pcrccivcd thc risk.!d

(citing Rich \'. 8mC<'. 129 F.3d 336. 340

n.2 (4th Cir. 1997)) (emphasis in original).
i. Defendant LCSW Lisa Winkler
Defendants contend that Plaintiffs failed to cstablish dcliberate indifferencc on the part of
clinical social workcr Lisa Winkler. ECF No. 14-1 at 14-15. They claim that "Ms. Winkler is
alleged to have had one interaction with Ms. Benton several days before her death:' and "Ms.
Winkler is not alleged to have witnessed any signs or symptoms indicating that Ms. Benton had a
serious medical need:' /d. at IS. Indeed. the Amended Complaint provides only that Ms. Winkler
conducted a single suicide prevention screening on October 9. 2013. several days before Ms.
Benton's death. Although the screening indicated that "Ms. Benton had a psychiatric history and
a history of drug or aleohol abuse:' the Amended Complaint provides no other facts indicating
an objectively serious medical need at that timeor Ms. Winkler's subjective knowledge and
disregarding of that risk. See lion/in-Coone)' \'. Frederick 0)'.. Md.. No. CIY. WDQ-13-1731.
2014 WL 576373. at

* 10 (D.

Md. Feb. 11. 2014) (dismissing deliberate indifference claim

against prison nurse where plaintilTpleaded insufficient facts showing nurse had subjcctive
knowledgc ofinmate's

suicide risk when she evaluated him): Brown \'. Harris. 240 F.3d 383.

390 (4th Cir. 2001) (noting that court must locus on the risk of which the official actually knew.
and what precautions were taken in response to that risk. not those that "could have been taken").
Thus. because Plaintiffs havc failed to plead suflicicnt facts showing deliberate indinerence on
the part of Defendant Winkler. the
ii. Defendants
Cawley

* 1983 claims in Count II against her must be dismissed.
I'. King, Beaumont,

Uosselrode, T. King, Randolph, and

With respect to the remaining Defendants, Plaintiffs have adequately stated a claim.
Delendant Penny King conducted an intake examination of Ms. Benton. ECF No. 4 ~ 48. and
9

also revicwed thc suicidc prcvention scrccning. Id. '1 50. Hcncc. Ms. King had knowledgc that
Ms. Benton "suffercd from high blood prcssure. bipolar disorder. uncxplaincd wcight loss. an
cnlargcd colon. and drug addiction:' and also that she "nccdcd follow-up medical carc for hcr
enlargcd colon:' Id. '148. Ms. King was also aware that Ms. Benton was cxperiencing
withdrawal. as she placed Ms. Bcnton on a "l3cnzo protocol:. Id. Additionally. Ms. King .'did
dctox chccks on and/or administcrcd medications to Ms. Benton during hcr incarccration at thc
Dctcntion Ccntcr and kncw shc was dctoxing. vomiting profuscly. refusing meals and had
unstable vital signs:' Id. ~ 82. Thercfore. Plaintiffs have allegcd sufficient facts "from which the
Court can infer that [Defendant P. Kingl had actual knowledgc oflMs. Bcnton'sl scrious
medicalnecd:'

See lIanlin-Cooney. 2014 WI. 576373. at

additionalmcdical

* 10. The

purported failurc to call fiJr

help was inappropriate in light of this risk. See id.

Defendant Latoya Bcaumont reported that Ms. Bcnton had clevatcd blood pressurc of
153/106 on Octobcr 11. 20 13. ECF No. 4 ~ 57. Dcspite Physician's Ordcrs that Ms. Bcnton was
to rcccivc 0.1 mg of Clonidinc for e1cvated blood pressurc ... that order was not carricd out:' Id.
Ms. Beaumont also conducted a detox check on Ms. Benton and took her vital signs thc next day.
Ms. Bcnton's blood prcssurc had risen to 167/92 and her pulsc had droppcd to 36 hcats per
minutc. Id. ~ 62. According to Plaintiffs' submittcd cxpert rcport .. '[aJ heart ratc of 36/minutc
represents a life-threatening condition:'

ECF No. 4-4 at 17. Alier notifying anothcr nurse ... thc

only mcdical care noted by Defcndant Bcaumont was a second dosc of Phencrgan and to
'cncourage' fluids:. ECF No. 4 ~ 62. Plaintiffs furthcr allege that Ms. Bcaumont "did dctox
checks on and/or administercd mcdications to Ms. Bcnton during hcr incarccration at thc
Dctcntion Ccnter and kncw she was detoxing. vomiting profusely. rcfusing mcals and had
unstable vital signs:. Id. '182. Bccause Ms. Bcaumont allegedly witncssed thcsc objectively

10

serious symptoms.

including

the deterioration

of Ms. Benton's

condition.

action to seek help for Ms. Benton. Plaintiffs state a claim for deliberate

See McKissick

CIY. 4 York. No. I :09-CV-1840.

Defendant

Beaumont.

* 14 (M.D.

I'a. Oct. 25. 20 II) (finding sufficient

I'.

evidence

prison nurse delayed or failed to respond to inmatc's

but took no further
indiffercnce

2011 WL 5117621.

for Eighth Amendmcnt

complaints

against

as his condition

at

claim whcrc
was

"dramatieall y worsening").
Next. the Amended
medication

Complaint

allcges that Dcfendant

Brandon Ilosscirode

to Ms. Bcnton at Icast twice during thc cvening. and despitc the fact that Ms. Bcnton

was vomiting

prolusely.

having abdominal

cramps. and refusing allmcals.

did nothing to see that Ms. Benton rcceivcd any additionalmcdical
NO.4 '166. Thc Complaint
administcrcd

furthcr states that Defendant

mcdications

knew she was dctoxing.
82. Thcsc allcgations
consciously

vomiting

profusely.

Plaintiffs

at thc Dctcntion

Ccntcr and

rcfusing mcals and had unstablc vital signs:'

to Dcfcndants

!d. fI

Kristy Randolph and Tara King. "Bccausc

* I 0 (citing

Ilosselrodc.

Randolph.

and King.

Ne\l"hrollgh v. l'iedlllol1/ Reg '/.Iail Aulh.. 822

(finding claim stat cd againstmedicaltcchnician

inmatc was going through withdrawal

medication):

ECF

I-!osselrode "did dctox checks on and/or

have statcd a claim against Dcfendants

F. Supp. 2d 558. 578 (E.D. Va. 2011»

appropriate

Hosselrode

medical carc can givc rise to a plausible claim of dclibcratc

!Ianlin-Cooney. 2014 WL 576373. at

rccognized

Defendant

carc or intcrvention:'

to Ms. Bcnton during hcr incarceration

are also attributcd

withholding

indiffercnce:'

tcchnician

"administered

but knowingly

whcrc

did not prcscribc

see a/so De 'Ionia v. Johllson. 708 F.3d 520. 526 (4th Cir. 2013)

(rcversing

dismissal

of Eighth Amendment

claim. noting that "just bccause [prison stanl have

providcd

[thc inmate

I with

.. it docs not f()lIow that they have necessarily

providcd

hcr with conslillllirJllally adeqllale treatmcnt")

sOllie treatmcnt.

II

(cmphasis

in original).

Finally. Defendant Cawley argues that Plaintiffs' claims against him must lail because
Plaintiffs fail to allege that he "knew ofa substantial risk of harm" or recognized that his actions
"were inappropriate in light of a known risk:' ECF No. 21-1 at 10. These arguments arc not
persuasive. The Amended Complaint includes several allegations regarding Defendant Cawley.
First. Mr. Cawley allegedly advised Delendant Harrison that Ms. Benton "is just going threw
[sic] withdrawals and her body is going to ache," and Ms. Benton was subsequently given
"Gatorade to hydrate:' ECI' NO.4

'1 50. Second.

on October 12.2013. Delendant Cawley

"administered medication to Ms. Benton at least twice during the day. and despite the lact that
Ms. Benton was vomiting profusely. having abdominal cramps. and refusing all meals.
Defendant Cawley did nothing to sec that Ms. Benton received any additional medical care or
intervention:'

Id ~ 65. Third. Defendant Cawley had substantial interaction with Ms. Benton on

the morning of her death. Id

'\71.

Mr. Cawley entered Ms. Benton's cell to dcliver medication.

Cawley reported that Ms. Benton "did not seem to sec him" and was in an "altered mental
status:' Id When he finally got her attention. Ms. Benton reached out and crushed both cups he
was trying to give her. Id She eventually took the medication. then grabbed her mattress and
began rocking back and forth. 1<1.
Plaintiffs also contend that Mr. Cawley. despite knowing of her condition and attendant
mental state. did nothing to provide further assistance or call for a doctor. Eel' No. 4 ~ 71.
Instead. Mr. Cawley "issued a memorandum that Ms. Benton not be allowed out of her cell.
except for her shower. because she was unsteady on her feet during her detox protocol:' 1<1. The
Amended Complaint further alleges that Mr. Cawley witnessed Ms. Benton vomiting and
refusing to cat during detox checks. but failed to obtain medical help. Id

'182.

Indeed. the only

reasonable inference here is that Mr. Cawley observed. first-hand. Ms. Benton's condition

12

worsening

rather than improving.

Accordingly.

Cawley was aware of an objectively

Plaintiffs have alleged suflicient

serious medical condition

facts that Mr.

and also rccognized

that his

actions were inadequate.

B. State Law Claims
The state law claims for survival action/negligence
I and III against Defendant
Health Care Malpractice

Winkler shall be dismissed.

Claims Act (HCMCA).

of a qualified

and that the departure

care. As Plaintiff:,'

"ifthe

from standards

contains

of the Maryland

of care is the proximate
I). Dr. Cohen's

no actual allegations

fllr

claimant or plaintiff fails to file a

expert with the Director attesting to departure

Code. Cts. & .Iud. Proc. ~ 3-2A-04(B)(
of other defendants.

Under the requirements

a claim filed against a health care provider

damage due to a medical action shall be dismissed
certificate

and wrongfiil death asserted in Counts

trom standards

of care.

cause of the alleged injury'"

Md.

report. while naming Ms. Winkler in a list

describing

her departure

from the standard of

expert report does not attest to a breach of the standard of care attributable

Defendant

Winkler.

Plaintiffs

defendant.

Compliance

to

have failed to comply with the HCMCA with respect to this

with HCMCA

Kimhle \'. Rajl'al. No. RWT IICVI457.

is a conditional

precedent

2012 WL 3263754.

to filing in federal court. See

at *4 (D. Md. Aug. 8. 2012) (citing

Dal'i.IIJI1l'.Sinai 110.11'. o(Baltimore. fnc .. 617 F.2d 361. 362 (4th Cir. 1980)).
Moreover.

in Maryland.

a wrongtiil death action "may be maintained

whose wrongful

(D. Md. 2011) (citing Md,Code.

Grinage \'. Mylan Pharm .. fnc .. 840 F. Supp.

act causes the death of another'"

2d 862, 872-73

only states a claim fill' wrongful

against a person

CIs. & .Iud. I'roc. ~ 3-902(a)).

death if a "wrongful

act" occurred.

Thus, a plaintiff

!d. (citing Georgia-Pacific

Corp. \'. Benjamin. 394 Md. 59. 80 n.6 (2006). A wrongful act is defined as "an act. neglect. or
default including

a felonious

act which would have entitled the party injured to maintain an

13

action and recover damages ifdeath

had not cnsued"/d.

(citing Md.Code. Cts. & .Iud. Proc. ~ 3-

901 (e)). Herc. Plainti ITs havc not pleaded suflicicnt facts that Dcfendant Winkler committed a
"wrongful act:' Thus. Counts I and III against Defendant Winkler are dismissed.
Howcvcr. Dcfendants havc conceded that PlaintitTs wcrc not required to tile an expert
report to accompany

the Cel1iticate of Merit with respect to Individual Defendants

P. King.

Beaumont. Hossclrode. T. King. Randolph. and Cawley. as they are CNAs and CMTs not
detined as "health care providers"

within the meaning of the HCMCA. ECr No. 23 at 1: see ,,/so

Ecr No. 22 at 11-14. Thus. the state law claims in Counts 1and III will proceed against these
Detcndants.
IV.

CONCLUSION
For the foregoing reasons. Detcndants'

Motions to Dismiss are granted. in part. denied. in

part. All claims arc dismissed as to Defendant Winkler. but shall proceed against all other
Defcndants.

A separate Order shall issue.

Date: March ~ 2017
George.l. Hazcl
Unitcd States District Judge

14