McKinnon v. Wexford Health Sources, Inc.

Filing 19

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 4/30/2018. (c/m 4/30/2018 heps, Deputy Clerk)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANTHONY McKINNON, # 369-987, 2106047,*
Plaintiff,

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v.

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JANICE GILMORE, R.N.,1
BEVERLY McLAUGHLIN, R.N.P.,
DR. AGRAWAL, and
WEXFORD HEALTH SOURCES, INC.,

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Civil Action No. PWG-17-1428

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*

Defendant.
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MEMORANDUM OPINION

Plaintiff Anthony McKinnon is incarcerated at Western Correctional Institution (“WCI”)
in Cumberland, Maryland. Am. Compl. 1, ECF No. 4. He alleges that he submitted multiple
requests to see medical personnel at WCI, and after they were “disregarded or ignored,” his
finger “became infected and swollen.” Id. Plaintiff filed this litigation pursuant to 42 U.S.C.
§ 1983 for alleged Eighth Amendment violations by Registered Nurse Janice Gilmore,
Registered Nurse Practitioner Beverly McLaughlin, Wexford Health Sources, Inc.2 and “Dr.
Agrawal,” an outside physician. Pending is a Motion to Dismiss or, in the alternative, for
Summary Judgment filed by Registered Nurse Janice Gilmore, Registered Nurse Practitioner

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The Clerk shall amend the docket to reflect that Janice Gilmore and Beverly McLaughlin are
Defendants in this case.
2
Defendant Wexford Health Sources, Inc. (“Wexford”) was previously dismissed from this case.
ECF No. 3. However, when Mr. McKinnon amended his complaint, he again included Wexford.
Am. Compl. 1. As stated in my prior Order, ECF No. 3, redress pursuant to 42 U.S.C. § 1983
does not permit recovery under a theory of vicarious liability such as respondeat superior. See
Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004). Mr. McKinnon’s Amended Complaint
does not raise an alternative theory of liability, and therefore, his claims against Wexford again
will be dismissed. See id.

Beverly McLaughlin, and Wexford Health Sources, Inc. Defs.’ Mot. 17. On November 21,
2017, the Clerk of the Court informed Mr. McKinnon that these Defendants filed a dispositive
motion; that he had seventeen days in which to file a written opposition to the motion; and that if
he failed to respond, summary judgment could be entered against him without further notice.
See ECF No. 18; Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975). Mr. McKinnon has
not responded. A hearing is unnecessary. See Loc. R. 105.6 (D. Md. 2016). Defendants’
motion, construed as a motion for summary judgment, will be granted.3 Plaintiff’s Eighth
Amendment claims for deliberate indifference against Defendants RN Gilmore, RNP
McLaughlin, and Wexford Health Sources, Inc. are dismissed with prejudice. Mr. McKinnon
has failed to state a claim against Dr. Agrawal for an Eighth Amendment violation, and
therefore, that claim is dismissed without prejudice. To the extent Mr. McKinnon stated a claim
under state law against Dr. Agrawal, I decline to exercise supplemental jurisdiction and that
claim also is dismissed without prejudice.

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Because the Defendants filed a motion to dismiss or in the alternative for summary judgment,
Plaintiff was on notice that the Court could treat the motion as one for summary judgment and
rule on that basis. “[T]he Federal Rules do not prescribe that any particular notice be given
before a Rule 12 motion is converted to a Rule 56 motion.” Ridgell v. Astrue, No. DKC–10–
3280, 2012 WL 707008, at *7 (D. Md. Mar. 2, 2012). Thus, this requirement “can be satisfied
when a party is ‘aware that material outside the pleadings is before the court.’” Walker v. Univ.
of Md. Med. Sys. Corp., No. CCB–12–3151, 2013 WL 2370442, at *3 (D. Md. May 30, 2013)
(quoting Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985)). Indeed, while the Court “clearly has
an obligation to notify parties regarding any court-instituted changes in the pending proceedings,
[it] does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash.
Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998). Here, the title of the motion itself, “Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment,” makes it obvious that the Court
might construe it as seeking summary judgment, and thereby provides sufficient notice to
Plaintiff. See Ridgell, 2012 WL 707008, at *7; see Laughlin, 149 F.2d at 260–61.
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Standard of Review
Summary judgment is proper when the moving party demonstrates, through “particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials,” that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A); see also Baldwin v.
City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the nonmoving party’s case, the burden shifts to
the nonmoving party to identify evidence that shows that a genuine dispute exists as to material
facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 & n.10
(1986). The existence of only a “scintilla of evidence” is not enough to defeat a motion for
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Instead, the
evidentiary materials submitted must show facts from which the finder of fact reasonably could
find for the party opposing summary judgment. Id. A “genuine” dispute of material fact is one
where the conflicting evidence creates “fair doubt”; wholly speculative assertions do not create
“fair doubt.” Cox v. Cty. of Prince William, 249 F.3d 295, 299 (4th Cir. 2001); see also Miskin
v. Baxter Healthcare Corp., 107 F. Supp. 2d 669, 671 (D. Md. 1999). The substantive law
governing the case determines what is material. See Hooven–Lewis v. Caldera, 249 F.3d 259,
265 (4th Cir. 2001). A fact that is not of consequence to the case, or is not relevant in light of the
governing law, is not material. Id.; see also Fed. R. Evid. 401 (defining relevance). “In ruling
on a motion for summary judgment, this Court reviews the facts and all reasonable inferences in
the light most favorable to the nonmoving party.” Downing v. Balt. City Bd. of Sch. Comm’rs,

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No. RDB 12-1047, 2015 WL 1186430, at *1 (D. Md. Mar. 13, 2015) (citing Scott v. Harris, 550
U.S. 372, 378 (2007)).
There is no genuine dispute of material fact if the nonmoving party fails to make a
sufficient showing on an essential element of his case as to which he would have the burden of
proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Therefore, on those issues for
which the nonmoving party has the burden of proof, it is his responsibility to confront the
summary judgment motion with an affidavit that “set[s] out facts that would be admissible in
evidence” or other similar facts that could be “presented in a form that would be admissible in
evidence” showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c)(2), (4); see also
Ridgell, 2012 WL 707008, at *7; Laughlin, 149 F.2d at 260–61.
Defendants have attached to their motion an affidavit and verified Medical Records.
Med. R., ECF No. 17-4; Joubert Aff., ECF No. 17-5. In contrast, Mr. McKinnon has not filed an
opposition or an affidavit and his allegations are contained in an unverified complaint. Because
Plaintiff’s Complaint is not verified, its factual assertions may not be considered in opposition to
Defendants’ motion. See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991); Fed. R. Civ. P.
56(c)(1)(A); see also Abdelnaby v. Durham D & M, LLC, No. GLR-14-3905, 2017 WL 3725500,
at *4 (D. Md. Aug. 29, 2017) (awarding summary judgment for the defendants, because the
plaintiff could not “create a genuine dispute of material fact ‘through mere speculation,’” and
“[t]hus, the Court [wa]s left with a record that [wa]s bereft of evidence supporting any of
Abdelnaby’s arguments”) (quoting Beale v. Hardy, 769, F.2d 213, 214 (4th Cir. 1985)).
Background
On January 16, 2017, Mr. McKinnon was seen by Registered Nurse Stacie Mast, and was
complaining of a swollen pointer finger on his left hand. Med. R. 2. He stated that his finger

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“just swelled up one day” and that he had not hurt it. Id. McKinnon was referred to a provider
for further evaluation. Id. On January 26, 2017, RNP McLaughlin examined Mr. McKinnon and
ordered an x-ray to be taken of his finger and a follow-up appointment in a week.4 Id. at 4–5.
RNP McLaughlin and Dr. Akal next examined Mr. McKinnon on February 23, 2017, and because
they were concerned that the growth on his finger may have been malignant, they referred Mr.
McKinnon for a consultation regarding a possible biopsy and excision of the mass on his finger.
Id. at 9–10. Mr. McKinnon was provided an antibiotic; however it did not provide relief. Id. at
13.
Mr. McKinnon was examined by Dr. Agrawal, an outside surgeon, on March 20, 2017,
and diagnosed the condition as “probably” being a tumor. Id. Dr. Agrawal noted that “removal of
[the] tumor may compromise the finger movement.”

Id.

Based on Dr. Agrawal’s

recommendation, Mr. McKinnon was referred to a hand specialist, which was approved on April
20, 2017. Id. at 16, 18–19. On May 17, 2017, Mr. McKinnon informed Physician Assistant Terri
Pryor that Tramadol5 had been “somewhat effective for pain in [his] finger” and PA Pryor noted
that Mr. McKinnon should continue using Tramadol at least until he was seen by a hand
specialist. Id. at 22–23.
On May 25, 2017, McKinnon saw Doctor Emme Chapman-Jackson, a hand specialist, at
Western Maryland Health System. Id. at 24. Dr. Chapman-Jackson diagnosed the mass as an
inclusion cyst and recommended removing it under local anesthesia. Id. Mr. McKinnon stated
that he was too anxious for local anesthesia and requested he be sedated for the procedure. Id.
Surgery was approved on June 8, 2017. Id. at 28. He received a pre-operative physical on June

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There is no indication in the record that a follow-up appointment occurred one week later.
Tramadol is a “narcotic-like pain reliever . . . used to treat moderate to severe pain.” Tramadol,
Drugs.com, https://www.drugs.com/tramadol.html (last visited April 26, 2018).
5

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19, 2017, and was cleared for surgery. Id. at 31–32. After his surgery on July 10, 2017, Mr.
McKinnon was admitted to the prison infirmary for observation and discharged on July 11, 2017.
Id. at 34–42. He received help with dressing the site and was given pain medications for twoweeks. Id. at 43–45. Orthopedic surgeon Roy Carls examined Mr. McKinnon on August 31,
2017, and observed that Mr. McKinnon had good hand function and a well healed but sensitive
scar. Id. at 52.
Analysis
Claims Against Defendants Janice Gilmore and Beverly McLaughlin
The Eighth Amendment prohibits “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)). In order to state an Eighth
Amendment claim for denial of medical care, a plaintiff must demonstrate that the actions of the
defendants or their failure to act amounted to deliberate indifference to a serious medical need.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Deliberate indifference is a very high standard—a showing of mere negligence
will not meet it . . . [T]he Constitution is designed to deal with deprivations of
rights, not errors in judgments, even though such errors may have unfortunate
consequences . . . To lower this threshold would thrust federal courts into the
daily practices of local police departments.
Grayson v. Peed, 195 F.3d 692, 695–96 (4th Cir. 1999).
Deliberate indifference to a serious medical need requires proof that, objectively viewed,
the prisoner plaintiff was suffering from a serious medical need and that, subjectively, the prison
staff were aware of the need for medical attention but failed to either provide it or ensure the
needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). To meet the
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objective requirement, the medical condition at issue must be serious. See Hudson v. McMillian,
503 U.S. 1, 9 (1992) (there is no expectation that prisoners will be provided with unqualified
access to health care). A medical condition is serious when it is “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.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir.
2008), see also Scinto v. Stansberry, 841 F.3d 219, 228 (4th Cir. 2016) (failure to provide
diabetic inmate with insulin where physician acknowledged it was required is evidence of
objectively serious medical need). Proof of an objectively serious medical condition, however,
does not end the inquiry.
The subjective component requires “subjective recklessness” in the face of the serious
medical condition. See 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 risk cannot be said to have inflicted punishment.’”
Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995) (quoting Farmer, 511 U.S. at
844). 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)) (holding that the focus should be on the
precautions actually taken in light of the known risk, not those that could have been taken), see

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also Jackson v. Lightsley, 775 F.3d 170, 179 (4th Cir. 2014) (prescribing treatment raises fair
inference that physician believed treatment was necessary and that failure to provide it would
pose an excessive risk). While “a prisoner does not enjoy a constitutional right to the treatment
of his or her choice, the treatment a prison facility does provide must nevertheless be adequate to
address the prisoner’s serious medical need.” De’lonta v. Johnson, 708 F.3d 520, 525–26 (4th
Cir. 2013) (holding that an inmate pleaded a claim for deliberate indifference when the prison
would not evaluate her for surgery that was an approved treatment for her serious medical need
despite her repeated complaints regarding the ineffectiveness of her current treatment). 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 that which may be considered merely
desirable.” Bowring v. Godwin, 551 F.2d 44, 47–48 (4th Cir. 1977).
Mr. McKinnon’s Amended Complaint alleges that the medical staff “refused to do
anything[, his] finger is now permanently injured[,] and [he is] in constant pain.” Am. Compl.
3. Objectively, a potentially malignant cyst is a serious medical condition. However, Plaintiff
has not demonstrated that medical personnel were subjectively indifferent to him.

Mr.

McKinnon’s Amended Complaint does not describe any specific actions or inactions taken by
Defendants RN Gilmore and RNP McLaughlin, but rather in conclusory fashion states they
“refused to do anything.” To the contrary, the record demonstrates that Defendants RN Gilmore
and RNP McLaughlin as well as other non-party medical personnel ensured Mr. McKinnon was
provided medical care for the cyst on his finger to include its removal after less intrusive means
(e.g. monitoring and medication) proved unsuccessful.

Therefore, Mr. McKinnon has not

demonstrated that RN Gilmore and RNP McLaughlin were subjectively indifferent to his
medical needs. See Gregory v. Prison Health Servs., Inc., 247 F. App’x 433, 435 (4th Cir.

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2007) (holding that medical personnel did not have the “the necessary state of mind to support a
viable § 1983 claim” when they saw him the day he injured his wrist, referred him to an
orthopedic specialist in a timely fashion, provided surgery “after less-intrusive means of
treatment failed, and was seen approximately twenty-four times for treatment of his injury”).
The Eighth Amendment does not guarantee that prisoners will receive the health care of
their choice or the medications they prefer, but only that serious medical conditions will not be
treated with deliberate indifference. At most, Mr. McKinnon complaint may be considered a
disagreement with the medical personnel overseeing his treatment. See Russell v. Sheffer, 528
F.2d 318, 318–19 (4th Cir. 1975) (holding that “mistreatment or non-treatment must be capable
of characterization as ‘cruel and unusual punishment’ in order to present a colorable claim
under § 1983” and that “[q]uestions of medical judgment are not subject to judicial review”);
Williams v. Corizon Med. Serv., DKC-12-2121, 2013 WL 4541684, at *7 (D. Md. Aug. 26,
2013) (“Disagreement with a medical provider does not amount to a violation of constitutional
magnitude. An inmate’s difference of opinion over matters of expert medical judgment or a
course of medical treatment does not rise to the level of a constitutional violation.”) (citing
Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010)). Although he alleges he is in pain,
Defendants and other medical personnel have prescribed and

continue to prescribe him

medications for pain relief. See, e.g., id. at 22–23, 44, 49.
Absent admissible evidence that sufficiently contradicts Defendants’ evidence or creates
a genuine dispute of material fact, I find that Defendants Janice Gilmore and Beverly
McLaughlin were not deliberately indifferent towards Mr. McKinnon’s medical needs. See
Grayson, 195 F.3d at 695; Williams, 2013 WL 4541684, at *7 (citing Nelson, 603 F.3d at 449
(8th Cir. 2010)).

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Claims against Dr. Agrawal
Mr. McKinnon’s Amended Complaint also names Dr. Agrawal and states that Mr.
McKinnon “was sent out to be seen by Dr. Agrawell [sic].” Am. Compl. 1, 3. Defendants
records and Memoranda indicate he is a surgeon, Med. R. 13, 16, and Mr. McKinnon alleges in
his Original Complaint that he was sent outside the jail to be seen by Dr. Agrawal, Compl. 2,
ECF No. 1. It does not appear that Dr. Agrawal has been served in this matter and he certainly
has not responded to the Amended Complaint or moved to dismiss it. But the Court is obligated
to review Mr. McKinnon’s Amended Complaint sua sponte to determine if he stated a claim
against Dr. Agrawal. 28 U.S.C. § 1915(e)(2). There is no indication in the record that Dr.
Agrawal is employed by, or under contract with, the State of Maryland with regard to the
delivery of prisoner health care. Although a private physician who is not employed by the State
or under contract with it may be liable to suit as a state actor pursuant to § 1983, Connor v.
Donnelly, 42 F.3d 220, 225 (4th Cir. 1994), Mr. McKinnon’s allegations fail to state a claim for
deliberate indifference as he was seen once by Dr. Agrawal. Med. R. 13. Mr. McKinnon only
alleges that he was sent out to see Dr. Agrawal and the records indicate Dr. Agrawal
recommended that Mr. McKinnon see a hand specialist to remove what was believed to be a
tumor. See Med. R. 13, 16. Mr. McKinnon has not alleged any facts that give rise to a
subjective indifference to his condition by Dr. Agrawal, and therefore, his Eight Amendment
claim will be dismissed. See Grayson, 195 F.3d at 695; Williams, 2013 WL 4541684, at *7
(citing Nelson, 603 F.3d at 449 (8th Cir. 2010)).
To the extent that Mr. McKinnon may have a state law claim against Dr. Agrawal, that
claim will be dismissed without prejudice. When a district court “dismisse[s] all claims over
which [it] enjoys original jurisdiction,” as I have done by dismissing Plaintiff’s § 1983 claims, it

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“may decline to exercise supplemental jurisdiction” over remaining state-law claims. 28 U.S.C.
§ 1367(c)(3).

“[T]rial courts enjoy wide latitude in determining whether or not to retain

jurisdiction over state claims when all federal claims have been extinguished.” Shanaghan v.
Cahill, 58 F.3d 106, 110 (4th Cir. 1995). Having dismissed all of Plaintiff’s § 1983 claims for
which this Court has original jurisdiction, I will decline to exercise supplemental jurisdiction
over the remaining state-law claim. See 28 U.S.C. § 1367(c)(3).
Conclusion
Mr. McKinnon’s claims against Defendant Wexford Health Sources, Inc. are dismissed
with prejudice. See Love-Lane, 355 F.3d at 782 (4th Cir. 2004); Foman v. Davis, 371 U.S. 178,
182, (1962) (noting that reasons to deny leave to amend include, inter alia, “futility of
amendment”). Defendants RN Gilmore and RNP McLaughlin have provided constitutionally
adequate medical care with regard to Mr. McKinnon’s cyst, and are entitled to summary
judgment in this case. Mr. McKinnon’s claim against Dr. Agrawal also fails to state a claim for
deliberate indifference and will be dismissed without prejudice. See 28 U.S.C. § 1915(e)(2).
Lastly, as I have declined to exercise supplemental jurisdiction for the state law claim against Dr.
Agrawal that claim will be dismissed without prejudice. A separate order follows.

April 30, 2018
Date

/S/
Paul W. Grimm
United States District Judge

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