Jones v. Wexford Health Sources, Inc.

Filing 32

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 8/18/2017. Associated Cases: 8:16-cv-02563-PX, 8:16-cv-02564-PX(kns, Deputy Clerk)(c/m 8/18/17)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
DANNY F. JONES,
*
Plaintiff,
*
v.

Civil Action No. PX 16-2563
*

WEXFORD HEALTH SOURCES, INC.,
et al.,

*

Defendants.
******
*
DANNY F. JONES,
*
Plaintiff,
*
v.

Civil Action No. PX 16-2564
*

DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONAL SERVICES, et al.,
et al.,

*
*

Defendants.
******
MEMORANDUM OPINION
Pending is a motion to dismiss, or alternatively, for summary judgment filed by
Defendants Wexford Health Sources, Inc., (“Wexford”), Colin Ottey, M.D., Robustianno
Barrera, M.D., Carla Buck, R.N., Beverly McLaughlin, R.N.P., and Dennis Martin, R.N.1
(“Medical Defendants”). Civil Action No. PX-16-2563, ECF No. 18.2 Plaintiff Danny F. Jones

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The Clerk shall amend the docket to reflect the correct names of all defendants.

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Counsel has not accepted service on behalf of Dr. Roy J. Carls or Sgt. Femi. Thus, Jones’ complaint against Dr.
Carls and Sgt. Femi shall be dismissed without prejudice.

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has filed responses in opposition. Id., ECF No. 27; ECF No. 28.3 Also pending in the related
action is a motion to dismiss, or alternatively, for summary judgment filed by Defendants
Department of Public Safety and Correctional Services, Warden Richard J. Graham, Jr., Lt.
Curran McKenzie and Sgt. Wayne Purnell. (“Correctional Defendants”). Civil Action No. PX16-2564, ECF No. 13.4 Plaintiff has filed a response in opposition (id., ECF No. 19) 5, to which
Correctional Defendants have replied. Id., ECF 20.
Because both cases concern essentially the same set of facts and legal issues,
consolidation for dispositive review is appropriate. See Fed. R. Civ. P. 42(a). Upon review of the
pleadings, the Court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md.
2016). For the reasons stated below, Defendants’ dispositive motions are granted.
I.

BACKGROUND

Plaintiff Danny F. Jones (“Jones”) is an inmate currently confined at Eastern Correctional
Institution (“ECI”) in Westover, Maryland. On July 13, 2016, Jones filed two complaints: the
first against Medical Defendants, Civil Action No. PX 16-2563, ECF No. 1, and the second
against Correctional Defendants, Civil Action No. PX-16-2564, ECF No. 1. At the heart of both
complaints is Plaintiff’s claimed violation of his Eighth Amendment right, as pleaded through 42
U.S.C. § 1983, to be free from cruel and unusual punishment stemming from Defendants’
provision of inadequate medical care.

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Citations are to the court’s electronic docket.

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Counsel has not accepted service on behalf of Dr. Roy J. Carls. Jones’ complaint against Dr. Carls shall be
dismissed without prejudice.

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In his response, Jones alleges, for the first time, claims under the Americans with Disabilities Act. ECF 19. These
claims are not properly before the court and will not be considered.

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The following facts are undisputed and construed in the light most favorable to Jones.
While housed at Western Correctional Institution (“WCI”), Jones fell on February 27, 2014
while being escorted by certain of the Correctional Defendants. Civil Action No. PX-16-2564,
ECF No. 13-1; ECF No. 1 at 3.

Jones specifically contends that he “lost [his] footing and fell

backwards, handcuffed behind [his] back down the steps, which caused further injury to [his]
body.” Id. Jones was directed to stay on the floor until medical personnel arrived. ECF No. 1 at
4. While Jones lay on the floor, Carla Buck, R.N. (“Nurse Buck”) responded to the incident and
ordered that Jones be transported to the infirmary with assistance because he could not walk.
Civil Action No. PX-16-2563, ECF No. 5 at 3.
On February 27, 2014, Jones was moved from his housing unit to the infirmary at
Western Correctional Institution (“WCI”) for further examination by Beverly McLaughlin,
R.N.P. (“McLaughlin”). Id. at 4. McLaughlin noted swelling and weakness in Jones’ lower
extremities and “severe pain with motion.” Id. McLaughlin ordered 200 mg of Motrin every
eight hours as well as 325 mg of Tylenol. Id. Jones was also prescribed Keflex and given a
medical assignment to a bottom tier and bottom bunk. Id. X-rays were also ordered. Id. Jones
was not provided a cane or crutches. Id.
On March 3, 2014, Jones was escorted by Sergeant Femi to the infirmary for x-rays. Civil
Action No. PX-16-2564, ECF No. 1 at 4. Although Jones asked Femi for a wheelchair, Femi
could not accommodate the request because no medical order for a wheelchair had issued. Id.
Jones claims, however, that after the x-rays, Femi attempted to transport Jones in a “gator cart,”
but when Jones tried to get into the cart, his right knee gave out and he fell. Id. Femi directed
two inmates to assist in picking Jones up and placing him in the cart so that he could be taken to

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the infirmary for further treatment. Id. While walking to the medical unit, handcuffed, his right
knee collapsed and he fell once again. Id.
After the March 3rd fall, Jones was evaluated by Dennis Martin, R.N. (“Nurse Martin”).
Civil Action No. PX-16-2563, ECF No. 5 at 4. According to Jones, Nurse Martin also failed to
order crutches or provide a cane to him. Id. Additionally, Nurse Martin failed to call the
provider, Doctor Colin Ottey, M.D. (“Dr. Ottey”), as Jones requested. Id. Jones states he was not
provided any additional pain medication relative to this second fall. Id.
On April 12, 2014, Jones saw Nurse Buck because his right knee remained swollen and
inflamed. Civil Action No. PX-16-2563, ECF No. 5 at 4. Jones states that Nurse Buck examined
him and noted that his knee was swollen and that he was limping; however, she did not provide
him with a cane, crutches or stronger pain medication.
Thereafter, Jones was provided the following care related to his knee injury. On April 28,
2014, Dr. Robustianno Barrera, M.D., (“Dr. Barrera”) prescribed 50 mg of Tramadol for pain
and ordered an MRI, but did not provide any assistive devices such as a cane or crutches. Id. On
May 2, 2014, Dr. Roy Carls (“Dr. Carls”) at the WCI infirmary recommended that Jones be
given a knee brace and ordered an MRI. ECF No. 5 at 5. Dr. Carls also preliminarily diagnosed
Jones with a right knee medial meniscus tear. Id. Jones submitted a grievance to the Warden on
June 4, 2014 and only thereafter was provided a knee brace. Id. On July 31, 2014, Jones was
again evaluated by Dr. Ottey at WCI. Jones advised that the knee brace did not help and once
again urged that he be given either crutches or a cane. Dr. Ottey responded that once Jones
received an MRI, he “would let [him] know” about the cane or crutches. Id. On August 15,

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2014,6 Jones underwent an MRI which revealed a right knee quadriceps tear. In September 2015,
Jones was transferred to the North Branch Correctional Institution (“NBCI”) where he was
provided a cane. Id. Dr. Carls performed surgery on Jones’ knee on February 2, 2015, which
Jones admits relieved his pain. Id.
II.
A.

ANALYSIS

Plaintiff’s Motions to Amend & File a Surreply
Jones has moved to amend his complaint so that he may sue the Correctional Defendants

in their individual capacities. Civil Action No. PX-16-2564, ECF No. 18. The motion,
unopposed by the Correctional Defendants, see ECF No. 20, at 3 n.2, shall be granted.
Jones also moves for leave to file a surreply. Id., ECF No. 24. The Correctional
Defendants’ dispositive motion was filed on November 28, 2016. Id., ECF No. 13. Jones filed
his response on December 30, 2016. Id., ECF No. 19. Correctional Defendants replied on
January 5, 2017. Id., ECF No. 20. On January 19, 2017, Jones’s surreply was returned to him
with notice that leave of court was required before filing a surreply. Id., ECF No. 21. Jones filed
his Motion for Leave to File a Surreply on March 8, 2017. Id., ECF No. 24. In it, Jones does not
explain why he wishes to file a surreply. Without any basis for granting the motion, and the
matter having been fully briefed, the Motion shall be denied.
B.

Defendants’ Dispositive Motions
1. Standard of Review
Defendants style their motions as ones to “Dismiss or, in the Alternative, Motion for

Summary Judgment” and attach exhibits for the Court’s consideration. Before the Court treats a

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Jones’ Amended Complaint mistakenly identifies the date of his MRI as August 15, 2016. See ECF No. 5 at 5.

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motion to dismiss as a motion for summary judgment, “[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). The
non-moving party may object to the court construing the motion as one for summary judgment
by attesting, via affidavit or declaration, to the need to take additional discovery before resolving
the motion. Fed. R. Civ. P. 56(d); see Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). The
Defendants’ pleadings have given Jones reasonable notice and opportunity to respond the
propriety of summary judgment, Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253,
260–61 (4th Cir. 1998), and Jones has not submitted an affidavit attesting to the need for
additional discovery. In fact, Jones has attached exhibits of his own to his responses. Thus, the
Court will treat the motions as ones for summary judgment and consider the additional
documentary evidence submitted by Jones and the Defendants.
A court may enter summary judgment only if there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th
Cir. 2008). Conversely, summary judgment is inappropriate if any material fact at issue “may
reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986); JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th
Cir. 2001).
2. Defendants Wexford, Graham, and McKenzie
It is well established that the doctrine of respondeat superior does not apply in § 1983
claims. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no respondeat superior
liability under § 1983); see also Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (no

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respondeat superior liability in a Bivens suit). Liability of supervisory officials is not based on
ordinary principles of respondeat superior, but rather is premised on “a recognition that
supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative
factor in the constitutional injuries they inflict on those committed to their care.” Baynard v.
Malone, 268 F.3d 228, 235 (4th Cir. 2001) (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.
1984)).
With regard to Wexford Health Services, Warden Graham, and Lt. McKenzie, Jones has
failed to plead sufficient facts that “supervisory indifference” or “tacit authorization” of
misconduct resulted in Jones’ injuries. Rather, Jones at best has pleaded liability based on
respondeat superior which is simply unavailable in the § 1983 context. Accordingly, claims
made as to Wexford, Graham, and McKenzie must be dismissed.
3. Defendant Department of Public Safety and Correctional Services
Under the Eleventh Amendment to the United States Constitution, a state, its agencies
and departments are immune from suits in federal court brought by its citizens or the citizens of
another state absent certain narrowly circumscribed exceptions not applicable here. See
Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 100 (1984). While the State of
Maryland has waived its sovereign immunity for certain types of cases brought in state courts,
see Md. Code Ann., State Gov’t § 12-202(a), it has not waived its immunity under the Eleventh
Amendment to suit in federal court. The Department of Public Safety and Correctional Services,
a State agency, is immune from federal suit and is thus dismissed from this action.
4. Medical Defendants
As to Jones’ claims regarding insufficient medical attention, the Eighth Amendment to
the United States Constitution governs the analysis. The Eighth Amendment prohibits
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“unnecessary and wanton infliction of pain” by virtue of its guarantee against cruel and unusual
punishment. Gregg v. Georgia, 428 U.S. 153, 173 (1976). “Scrutiny 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)).
To sustain a claim for denial of medical care under the Eighth Amendment, Jones must
show that the Medical Defendants’ acted with deliberate indifference to a serious medical need.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Importantly, “[d]eliberate indifference is a very
high standard—a showing of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d 692,
695 (4th Cir. 1999). This is so because the Constitution “is designed to deal with deprivations of
rights, not errors in judgments, even though such errors may have unfortunate consequences.” Id.
at 695–96.
The deliberate indifference standard regarding a serious medical need requires that Jones
demonstrate that objectively he was suffering from a serious medical need, and that, subjectively,
the prison staff were aware of that need but failed to either provide treat Jones or ensure the
needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Hudson v.
McMillian, 503 U.S. 1, 9 (1992). Jones must also demonstrate that the Medical Defendants
behaved with “subjective recklessness” in the face of his serious medical condition. Farmer, 511
U.S. at 839–40. “True 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). “Actual 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

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risk cannot be said to have inflicted punishment.’” Brice v. Va. Beach Corr. Center, 58 F.3d 101,
105 (4th Cir. 1995) (quoting Farmer, 511 U.S. at 844).
Put differently, if the requisite subjective knowledge is established, an official may avoid
liability “if [he] responded reasonably to the risk, even if the harm was not ultimately averted.”
See Farmer, 511 U.S. at 844. Reasonableness of the actions taken must be judged in light of the
risk the defendant actually knew at the time. See Brown v. Harris, 240 F.3d 383, 390 (4th Cir.
2000) (citing Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998)) (“[A] court must focus on the
precautionary actions actually undertaken by an official in response to a risk . . . not those actions
which could have been taken”). For Jones to prevail, the treatment rendered “must be so grossly
incompetent or inadequate as to shock the conscience or to be intolerable to fundamental
fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990) (citation omitted), overruled in
part on other grounds by Farmer, 511 U.S. at 837.
“Deliberate indifference may be demonstrated by either actual intent or reckless
disregard.” Miltier, 896 F.2d at 851. Reckless disregard occurs when a defendant “knows of and
disregards an excessive risk to inmate health or safety; the [defendant] must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists and
he must also draw the inference.” Farmer, 511 U.S. at 837. Mere negligence or malpractice does
not rise to the level of a constitutional violation. See Russell v. Sheffer, 528 F.2d 318, 319 (4th
Cir. 1975); Donlan v. Smith, 662 F. Supp. 352, 361 (D. Md. 1986) (citing Estelle v. Gamble, 429
U.S. 97, 106, (1976)). “The right to treatment is . . . limited to that which may be provided upon
a reasonable cost and time basis and the essential test is one of medical necessity and not simply

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that which may be considered merely desirable.” Bowring v. Godwin, 551 F.2d 44, 47–48 (4th
Cir. 1977) (emphasis added).
Here, the evidence viewed in the light most favorable to Jones establishes that he
received constitutionally adequate medical care for his knee injury. Indeed, Jones attended
regular medical appointments with qualified staff who provided ongoing attention to his pain
management, physical therapy, and assistive devices related to his knee injury. When all other
less invasive treatments were exhausted, Jones received the appropriate surgery and related
medical care. Medical Defendants are therefore entitled to summary judgment.
In Jones’ view, his claims survive because he was not provided a cane or crutches in a
timely manner. Jones’ argument amounts to little more than disagreement with the course of
treatment provided. When viewing the evidence as a whole and in the light most favorably to
Jones, no evidence exists that the delay in treatment amounts to deliberate indifference. See
Estelle, 429 U.S. at 105–06 (holding that an inadvertent failure to provide adequate medical care
does not amount to deliberate indifference). Indeed, “[d]isagreements between an inmate and a
physician over the inmate’s proper medical care do not state a § 1983 claim unless exceptional
circumstances are alleged.” Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (citing
Gittlemacker v. Prasse, 428 F.2d 1, 6 (3rd Cir. 1970)).
No exceptional circumstances exist here. Construing all evidence most favorably to
Jones, the medical Defendants have articulated sound reasons for their course of treatment. Dr.
Barrera has affirmed (and Jones provides no evidence to the contrary) that assistive devices such
as a cane or crutches can impede maximum functional improvement and limit the full range of
motion, and so would be an inappropriate first course of treatment for Jones. See Civil Action

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No. PX-16-2563, ECF No. 18-5 at 7. Similarly, Dr. Carls agreed with Dr. Barrera and did not
recommend a cane or crutches. Id. at 11. Neither did the physical therapists. See ECF No. 18-4 at
44. It was only after Jones’s condition was monitored regularly, and physical therapy proved
ineffective, that an MRI was approved and Jones’ quadriceps tear was confirmed. In addition to
appropriate follow-up consultation with Dr. Carls and preparation for surgery, Jones received a
cane at that juncture. ECF No. 18-5 at 6, ECF No. 18-4 at 95.
Similarly, even if the Medical Defendants should have given Jones an MRI earlier so as
to confirm surgery was warranted, that alone does not rise to the level of deliberate indifference.
This is especially apparent here because, as Dr. Barrera noted, meniscus tears do often heal
without surgery when treated properly. ECF No. 18-5 at 12. In this regard, no evidence exists
that the providers’ course of treatment was so outrageously deficient that it amounts to deliberate
indifference. ECF No. 18-5 at 12.
To the extent Jones claims that Nurses Buck and Martin failed to order additional pain
medication, Dr. Barrera avers that the medications prescribed to Jones were appropriate to treat
his condition. ECF No. 18-5 at 5–7. Jones has provided no evidence to the contrary. Finally, the
medical records demonstrate that Jones was consistently provided analgesic medication which
his care providers increased and adjusted in response to his complaints regarding pain
management. Even when viewed in the light most favorably to Jones, no evidence exists that
defendants were deliberately indifferent in managing Jones’s pain through medication.
Lastly, Jones’ general complaint regarding the timeliness of his medical care is
unavailing. While it took approximately one year for Jones to undergo surgery for a torn
meniscus, he was treated regularly by medical staff in a conservative manner, which included

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appropriate diagnostic tests, analgesic medication, and physical therapy prior to surgery.
Although Jones’ frustration with the delay in receiving surgery is understandable, it does not rise
to the level of a constitutional violation. Medical Defendants’ motion for summary judgment is
therefore granted.
5. Correctional Defendants
To sustain an Eighth Amendment claim against state actors who are not medical
providers such as Correctional Defendants, Jones must demonstrate (1) that the Correctional
Defendants actual knew of the risk of harm to Jones, Young v. Mt. Ranier, 238 F.3d 567, 575–76
(4th Cir. 2001); see also Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (“It
is not enough that the officer should have recognized it.”); and (2) that the Correctional
Defendants “recognized that [their] actions were insufficient” to mitigate the risk of harm to the
inmate arising from his medical needs. Parrish, 372 F.3d at 303 (emphasis added); Iko v.
Shreve, 535 F.3d 225, 241 (4th Cir. 2008).
Here, no evidence exists that any of the named Correctional Defendants knew that their
failure to provide assistive devices or other physical support during their escort would risk harm
to Jones. Prior to Jones falling, the Correctional Defendants had no direct involvement in Jones’s
medical care or the provision of medical equipment. Moreover, that Jones may have discussed
his difficulty walking did not alter the fact that the Correctional Defendants were not given any
medical directives to provide Jones any assistive devices. Accordingly, no evidence supports that
the Correctional Defendants were either aware of a known risk of harm to Jones or recognized
that their actions were insufficient to mitigate the risk of harm. Correctional Defendants are
therefore entitled to summary judgment in their favor on the Eighth Amendment claims.

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III.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion to amend is granted, and his motion to file a
surreply is denied. Plaintiff’s claims against defendants Dr. Roy J. Carls and Sgt. Femi are
dismissed without prejudice. Defendants’ motions to dismiss, or in the alternative, for summary
judgment are granted. A separate order will follow.

8/18/2017
Date

/S/
Paula Xinis
United States District Judge

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