Bryant-El v. Corcoran

IN THE UNITED STATES DISTRICT COURT . |

FOR THE DISTRICT OF MARYLAND

CORTNEY BRYANT-EL, *

Vv % Civil Action No. CCB-17-3675

DAYENA CORCORAN, *

JEFF NINES,

OLIVIA RYAN,! *

RYAN BROWNING,

DAWN SHOWALTER, *

JANE/JJOHN DOE, Nursing Staff

*

MEMORANDUM OPINION ,

Cortney Bryant-El is suing defendants pursuant to 42 U.S.C. § 1983 for allegedly denying

him adequate medical care at North Branch Correctional Institution (NBCI). Defendants’ former

Commissioner Dayena Corcoran and Assistant Warden Jeff Nines (collectively, the “State

Defendants”) filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment.

Also pending is defendants Ryan Browning and Dawn Showalter’s ? (collectively, the “Medical

Defendants”) Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. The State

and Medical Defendants have filed declarations and verified records in support of their dispositive

motions. Plaintiff filed an opposition’ to which the Medical Defendants filed a Reply.

' In his supplement, plaintiff asks to “retract[]” his claims against Olivia Ryan. ECF 15 at p. 14. His request will be

granted. Plaintiff originally named Stacie Mast and Tammy Buser as defendants, and later withdrew the claims against

them, ECF 36, 42.

2 The State Defendants state that Dawn Showalter, R.N. is incorrectly named as Dawn Hawk in the Complaint. ECF’

20 n.1; ECF 24. The court notes, however, that her August 20, 2018, declaration is signed “Dawn Hawk.” ECF 27-

3 at p. 5. The court shall refer to this defendant as Dawn Showalter.

> Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir, 1975), the Clerk informed plaintiff that defendants had

filed dispositive motions and he may file oppositions with exhibits and affidavits. ECF 26, 31. Plaintiff filed exhibits

with his opposition, but no declarations under oath. ECF 37. However, in Civil Action CCB-18-1519 plaintiff filed

a declaration attesting under oath that he expressed his need for medical care to Browning and Showalter, informed

them he has asthma, and denying his breathing was even and unlabored. See Civil Action CCB-18-1519 at ECF 17-

Having reviewed the pleadings, briefs, and exhibits, the court finds that a hearing is

unnecessary at this time. See Local R. 105.6 (D: Md. 2018). For the reasons set forth below, the

State Defendants’ motion for summary judgment (ECF 25) will be granted. The Medical

Defendants’ motion for summary judgment (ECF 27) will be granted in part and denied in part.

PROCEDURAL BACKGROUND

Plaintiff was transferred to NBCI on January 26, 2017, and claims that he was not provided

medical care for asthma when he arrived and that, when he was prescribed various medications for

asthma, allergies, and reflux, he was denied timely refills of the medications. ECF 1; ECF 15 at

p. 9. In his complaint plaintiff sought emergency injunctive relief to require refills on his

_ medication and sought “permission to pursue damages” after he received an answer to a “complaint

lodged with [the] Commissioner of Correction.”* ECF 1 at pp. 3, 7, 10.

In light of plaintiffs alleged need for emergency injunctive relief, the court directed

counsel for the Department of Public Safety and Correctional Services (DPSCS) to file an

expedited response addressing why injunctive relief (to provide his prescribed medications) should

not be granted. ECF 8. Plaintiff then filed an Amended Complaint to add new claims and new

defendants. ECF 9. After the matter was fully briefed, the court denied plaintiff's request for

injunctive relief, permitted his claim that he was denied prescription medications prior to

December 11, 2017 to proceed for service on defendants, and granted him additional time to

supplement his claim. ECF 13 at pp. 3-5. Plaintiff was instructed to file a separate case if he

3. In that case, the court denied Browning and Showalter’s motion for summary judgment. Jd. at ECF 32, 33. Mindful

that plaintiff is a pro se litigant and that he filed related medical claims in a separate and related case, the court shall

take notice of that declaration in reviewing plaintiff's claims in the instant matter. See Dyer v. Add. State Bd. of

187 F. Supp. 3d 599, 608 (D, Md, 2016) (moting that a court may take notice of matters of court filings).

4 Plaintiff provides no additional detail about this “complaint.”

2 .

wished to raise additional claims against new defendants. . ,

On April 23, 2018, plaintiff filed a supplement to the Complaint to request compensatory

and punitive damages. He claims-the Medical Defendants have violated his rights under the Eighth

Amendment, unlawfully retaliated against him, and violated Maryland Law, and claims the State

Defendants have violated his rights under the Eighth Amendment, the Equal Protection Clause,

“Maryland law, and Departmental regulations.” ECF 15 at pp. 4-6, 12-13.

FACTUAL BACKGROUND

I, The Medical Defendants — -

On January 26, 2017, plaintiff was involved in a use of force incident at Western

Correctional Institution (WCI) during which correctional officers used pepper spray. Following

the incident, plaintiff was examined at 2:22 p.m. by Ryan Browning, LPN, who reported plaintiffs

respiration was “even and nonlabored” and there were no signs or symptoms of distress. ECF 27-

3 at p. 3; Browning Decl. ECF 27-5 at p. 2 §(3—4. ‘Plaintiff voiced no concerns of injury, denied

any pain, had no difficulty breathing or seeing, and returned to his cell without difficulty. Jd After

plaintiff was transferred to NBCI later that day, he was examined by Dawn Showalter, R.N. at

4:34 p.m. ‘Showalter determined plaintiffs respiration was “even and unlabored,” his lungs were

clear, and he had no injuries or complaints. ECF 27-3 at p. 5; Showalter Decl. ECF 27-5 at p. 4

(3-4. After examination, plaintiff returned to his cell without difficulty. Jd.

Plaintiff provides a different account of his medical evaluations, He asserts the pepper

spray made it difficult for him to breathe and caused burning in his eyes and over his ‘body.

5 Plaintiff presented the new claims against additional defendants in Civil Action No. CCB-18-1519 (D. Md.).

After this matter was briefed by the parties, plaintiff filed a request to add a new claim that he was not being seen

for chronic care. ECF 43, 44. The Medical Defendants oppose the filing, arguing inter alia that the new information

makes no reference to defendants and concerns events that are alleged to have occurred long after the matters at issue

here. ECF 45. Plaintiff will not be permitted to introduce these eleventh hour claims.

Plaintiff states he informed Browning and Showalter that he has asthma. ECF 15 at pp. 2-3, 5;

Civil Action 18-1519, Bryant-El Decl. ECF 17-3. Browning allegedly responded, “Well you have

too much mace on you for me to do anything for you.” ECF 15 at p. 2. Plaintiff claims Browning

“purposely prevaricated” about his need for treatment by falsely claiming that plaintiff’ s breathing

was even and nonlabored, and plaintiff reported “I’m good.” Jd. at p. 3. Plaintitt denies ever

stating, “I’m good,” and claims any assertion that his breathing was even and unlabored is “a lie.”

Civil Action 18-1519, Bryant-El Decl. ECF 17-3 at 96,7.

When plaintiff explained to Showalter his need for an asthma inhaler because he was

unable to breathe without “strenuous labor due to the effects of the chemical compound still

adhering to [his] hair and skin on [his] respiratory condition,’ Showalter allegedly replied,

“Jo}fficers protect us and we look out for them.” ECF 15 at p. 4. Plaintiff claims Browning and

Showalter’s demeanors were hostile and they failed to respond to his requests for medical care in

retaliation for the incident involving correctional staff, ECF 15 at p. 3; Civil Action 18-1519, ECF

17-3 4, 9. He faults them for failing to provide him with his inhaler or instructing custody staff

to do so. ECF 15 at p. 3-4. Plaintiff accuses Showalter of “lying” on his medical report by stating

that he was in no distress, when in fact, he was. /d at p. 5; Civil Action 18-1519, ECF 17-3 47.

He faults Browning and Showalter for failing to follow protocols outlined in the DPSCS Chronic

Disease Management Manual which states asthma inhalers are “Keep On Person” medications.

ECF 15-1 at p. 1. He claims Browning and Showalter allowed their loyalty to prison guards to

“impact their medical judgment.” ECF 15 at p. 9.

Browning and Showalter dispute these assertions in their declarations. They state the

information in the medical reports is accurate. Browning Decl. ECF 27-5 at p. 2 95; Showalter

Decl. ECF .27-5 at pp. 4-5 95. Further, they deny any aspect of the care they provided to plaintiff

4 .

was motivated by retribution or malicious intent. Browning Decl. ECF 27-5 at p. 3 □□ Showalter

Decl. ECF 27-5 at p. 5 46.

Plaintiff alleges that for twelve days after the January 26, 2017, incident, he was denied the

use of his prescribed Albuterol inhaler, ECF 15 at p. 2, On February 7, 2017, custody staff gave

him his personal property, which included his inhaler, By February 21, 2017, the medicine in the

inhaler had run out, and he had no access to an inhaler until he purchased one from another inmate

on March 11, 2017. ECF 15 at p. 6. . □

Plaintiff submitted a sick call slip on February 17 and February 21, 2017, asking for

something to wash pepper spray residue from his hair. ECF 27-4 at pp. 5-6. The medical record

indicates that he refused to attend the February 23, 2017 appointment scheduled for him. ECF 27-

3 at p. 9; ECF 27-4 at p. 6. He filed an additional sick call slip on March 24, 2017 for shampoo to

remove the pepper spray, and on March 28, 2017, ‘was seen by a medical provider who gave him

Tums for indigestion at night when he is lies down, tar shampoo for his hair, and suggested

exercises to alleviate his back pain. Plaintiff expressed no other concerns to the medical provider.

ECF 27-4 at pp. 8, 11; ECF 27-3 at p. 10.

In response to his March 30, 2017 sick call slip, asking for milk of magnesia, plaintiff was

seen by a nurse on April 4, 2017, for complaints of stomach discomfort when lying down and after

eating. He was provided Omeprazole (Prilosec). ECF 27-3 at p. 12; ECF 27-4 at p. 12.

On April 21, 2017, plaintiff filed a sick call slip seeking care for his allergies to pollen,

grass, and dust, and was seen by a provider two days later. Plaintiff stated that he gets “allergies

each year and usually gets multiple respiratory medications to help him.” ECF 27-3 at p. 14; ECF

27-4 at pp. 15-16. It was noted that he has been provided an inhaler in the past. Plaintiff was in

no acute distress and was referred to see a physician. Jd.

On April 26, 2017, plaintiff was seen by Dr. Mahboob Ashraf for allergies. ECF 27-3 □□

p. 16-17. Ashraf ordered guaifenesin, tums, omeprazole, Nasacort AQ, T-gel, chlor-trimeton

(chlorphenirame maleate), and Ventolin HFA (albuterol sulfate).? Jd. Plaintiff states these

medications were to treat his asthma, reflux, allergies and the “harmful impact of the chemical

compound having been left so long in my hair and on my scalp.” ECF 1 at p. 3; ECF 15 at p. 6

6. Plaintiff states he received the medications “once without undue delay.” ECF 15 at p. 6 (6.

Plaintiff asserts that when his supply of these medications ran out, the refills were not

provided despite his filing “a multitude of sick call requests and medication re-fill requests.” ECF

1 at p. 4; ECF 15 at p. 7; ECF 27-4 at pp. 17-18, 20-22, 24-27, 29-30, 33-34. Plaintiff claims he

was “forced to purchase asthma inhalers” from other inmates because his prescription was not

refilled. ECF 1 at p. 4; ECF 15 at p. 7. He claims that for “a nine month period [he] did not receive

the medicinals as prescribed,” and was therefore without the attendant health benefits. ECF 15 at

p. 7.

I. The State Defendants

Plaintiff 1s suing Corcoran and Nines in their official capacities. ECF 15 at pp. 11-12. He

alleges they were aware of his need for refills on his prescriptions based on the “multiple

complaints” he filed. at 10. He claims they are liable because they signed the responses to his

ARP requests and appeals. Additionally, he alleges Corcoran and Nines failed to ensure that the

medical staff responsible for processing prescriptions were educated on the proper protocols and

did not ensure that he received his medication refills. fd. at pp. 10-12; ECF 37-1 at pp. 3, 10.

Plaintiff claims he received no response to his sick call requests. ECF 1 at p. 5; see also

7 See Ventolin HFA, https:/Avww.ventolin conv. Chlorpheniramine maleate is an antihistamine for allergies, nasacort

and guaifenesin are nasal decongestants, and omeprazole its a medication for heartburn similar to Prilosec. ECF 27-1

at pp. 1-2, 4.

sick call requests, ECF 25-4 at p. 14. Notably, sick call slips are reviewed by medical, not

correctional staff. Nines’ Decl. ECF 25-3 at 2 §/4.

On July 31, 2017, plaintiff filed ARP NBCI-1779-17, alleging that he had requested a sick

call about his asthma. ECF 1-2 at p. 1; ECF 25-4 at pp. 23, 25. The ARP was investigated and it

was determined that no sick call was received from plaintiff in July 2017, but plaintiff was seen

on August 17, 2017 for medication renewals for shampoo and to treat his heart burn, and on

September 13, 2017, he had refused to attend a sick call appointment. ECF 25-4 at pp. 26-28. On

September 23, 2017, Nines dismissed the ARP as without merit:

Specifically, you claim that you submitted a sick call slip on 7/23/17, but were

never seen. An investigation revealed that there is no record of you submitting a

sick call slip in the month of July 2017. It is documented that you were seen on

8/17/17 for medication renewals. There were no documented complaints

concerning your asthma. Your administrative remedy allegations are without merit.

fd. at 25.

Plaintiff appealed the dismissal to the Commissioner of Correction. On October 27, 2017,

Commissioner Corcoran dismissed the appeal after an.investigation. ECF 1-2 at p. 4, ECF 25-4 at

p. 22,

On September 28, 2017, plaintiff filed ARP NBCI 2287-17, alleging he had submitted four

sick call slips for his Prilosec refill. He complained of constant “chest cramps and heart burns”

because his medications were not being refilled in a timely fashion. ECF 25-4 at p. 32; ECF 15-1

at p. 17. The ARP was investigated, and it was noted that “Correct Rx Pharmacy was contacted

and per them, Prilosec was filled on 8/17/17 (the day it was ordered) and then not again until

10/26/17 despite sick calls being turned in.” ECF 25-4 at p. 34. In the ARP response, Nines

deemed the ARP meritorious. :

An investigation revealed that according to your medical file, you placed several

sick calls requesting a refill of Prilosec, but there is no documentation that you ever

received it. It is reported that this medication was filled again on October 26, 2017.

Nursing staff is to be educated on the refill of medications and the processing of

sick calls. No further action is required.

Id. at 32.°

Plaintiff claims that “Jane/John Doe Nursing Staff’ in their “official and individual

capacities” failed to provide or only sporadically provided his medication refills between April 26,

2017 and December 29, 2017. ECF 15 at p. 13-14. He seeks an order allowing him access to

medical records to “elucidate factual matters wherein I am in dispute with defendants assertions.”

Id. at 15,

STANDARD OF REVIEW

When ruling on a motion under Rule 12(b)(6), the court must “accept the well-pled

allegations of the complaint as true,” and “construe the facts and reasonable inferences derived

therefrom in the light most favorable to the plaintiff.” /barra v. United States, 120 F.3d 472, 474

(4th Cir. 1997). “Even though the requirements for pleading a proper complaint are substantially

aimed at assuring that the defendant be given adequate notice of the nature of a claim being made

against him, they also provide criteria for defining issues for trial and for early disposition of

inappropriate complaints.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). “The mere

recital of elements of a cause of action, supported only by conclusory statements, is not sufficient

to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d 435, □□□

(4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S, 662, 678 (2009)). To survive a motion to

® On July 18, 2017, plaintiff filed ARP NBCI-1654-16, complaining he had submitted multiple sick call slips to review

his medical file, but had not been provided access to his records. ECF 25-4 at p. 5. On August 14, 2017, Nines

responded the ARP was meritorious. “An investigation revealed that you submitted sick calls on 5/25/17, 5/27/17 and

6/6/17 requesting to review your medical file, but were not scheduled for this review.” Jd. The response indicated

plaintiff was scheduled to review his medical records on August 15, 2017, and concluded no further action was

necessary through the ARP process. /d. Plaintiff appealed the decision, and on December 21, 2017, Commissioner

Corcoran dismissed the appeal after investigation. /d. at pp. 4, 9-11.

dismiss, the factual allegations of a complaint “must be enough to raise a right to relief above the

speculative level on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” Bell Atlantie Corp. y. Twombly, 550 U.S. 544, 555 (2007) (internal citations

omitted). “To satisfy this standard, a plaintiff need not ‘forecast’ evidence sufficient to prove the

elements of the claim. However, the complaint must allege sufficient facts to establish those

elements.” Walters, 684 F.3d at 439 (citation omitted). “Thus, while a plaintiff does not need to

demonstrate in a complaint that the right to relief is ‘probable,’ the complaint must advance the

plaintiffs claim ‘across the line from conceivable to plausible.”” Jd. (quoting Twombly, 550 U.S.

at 570).

Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted

“if the movant shows 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) (emphases added). “A dispute is

genuine if ‘a reasonable jury could return a verdict for the nonmoving party.” Libertarian Party

of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am.,

673 F.3d 323, 330 (4th Cir. 2012)). “A fact is material if it ‘might affect the outcome of the suit

under the governing law.” Jd. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). Accordingly, “the mere existence of some alleged factual dispute between the parties will

not defeat an otherwise properly supported motion for summary judgment[.]” Anderson, 477 U.S.

at 247-48. The court must view the evidence in the light most favorable to the nonmoving party,

Tolan vy. Cotton, 134 8. Ct, 1861, 1866 (2014) (per curiam) (citation and quotation omitted), and

draw all reasonable inferences in that party’s favor, Scott v. Harris, 550 U.S. 372, 378 (2007)

(citations omitted); see also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568-69 (4th

Cir. 2015). At the same time, the court must “prevent factually unsupported claims and defenses

from proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th

Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)).

DISCUSSION

I. Claims Against the State Defendants

The State Defendants argue they are entitled to dismissal of the claims against them or

summary judgment in their favor on several grounds, including Eleventh Amendment immunity,

lack of personal participation, and qualified immunity.” Further, they argue plaintiff's allegations

fail to establish a constitutional violation.

Deliberate indifference to a serious medical need requires proof that, objectively, the

plaintiff was suffering from a serious medical need and that, subjectively, the defendant was aware

of the need for medical attention but failed either to provide it or to ensure that the needed care

was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1984). The subjective component

examines whether the defendant acted with reckless disregard in the face of a serious medical

condition, ie., with “a sufficiently culpable state of mind.” Wilson vy. Seiter, 501 US. 294, 298

(1991). An Eighth Amendment claim for deliberate indifference to a serious medical need raised

against a correctional official requires evidence that they: (1) “failed promptly to provide” needed

medical care; (2) “deliberately interfered with the prison doctors’ performance”; or (3) “tacitly

authorized or were indifferent to the prison physicians' constitutional violations.” Mi/tier v. Beorn,

896 F.2d 848, 854 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511

U.S. 825, 836 (1994). The State Defendants may rely on the expertise of medical providers. See

Shakka v. Smith, 71 F.3d 162, 167 (4th Cir. 1995); see also Miltier, 896 F.2d at 854-55

® Because the court finds no constitutional injury, the State Defendants” qualified immunity defense will not be

addressed.

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(supervisory prison officials may rely on professional judgments of medical providers but may be

found liable based on “supervisory indifference or tacit authorization of subordinate

misconduct.”). A prison official must have both known of a serious risk of harm and recognized

that his or her ‘actions were insufficient or “inappropriate in light of that risk” to support an Eighth

Amendment claim. Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (analyzing

a Fourteenth Amendment claim but using the same standard “as that which applies to cases arising

under the Eighth Amendment, where prison officials are accused of deliberate indifference to a

substantial risk of serious harm to prison inmates,” Jd. at 302 n.11.).

Plaintiff brings suit against Corcoran and Nines solely in their official capacities.!° Under

the Eleventh Amendment to the United States Constitution, a state as well as its agencies and

departments are immune from suit brought in federal court by its citizens or the citizens of another

state, absent narrow exceptions not relevant here. See Pennhurst State Sch. and Hosp. v.

Halderman, 465 US. 89, 100 (1984). A suit against a state official for acts performed in his

official capacity is equivalent to suing the State itself. Will v. Mich. Dep't of State Police, 491 US.

58, 71 (1989) (internal citation omitted). Although Maryland has waived its sovereign immunity

for certain types of cases brought in state courts, see Md. Code Ann., State Gov’t § 12-104(a), it

has not waived its immunity under the Eleventh Amendment to suit in federal court. “A State’s

constitutional interest in immunity encompasses not merely whether it may be sued, but where it

may be sued.” Halderman, 465 U.S. at 99 (emphasis in original). Accordingly, the claims against

the State Defendants will be dismissed. Further, even if these claims had been raised against

Corcoran and Nimes in their individual capacities, or plaintiff had sought relief in addition to

Plaintiff expressly states his claims against Corcoran and Nines are in their official capacities, as compared to the

claims he brings against the “Jane/John Doe Nursing Staff” in their “individual and personal capacities.” ECF No. 15

at pp. 11-13. No claims are brought against Corcoran and Nines in their individual capacities.

11

monetary damages, his claims against these two defendants would be unavailing as discussed

below.

Plaintiff filed this case pursuant to 42 U.S.C. § 1983, which requires that individual liability

must be based on personal conduct. See Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985);

Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977); see also Foote y. Spiegel, 118 F.3d 1416,

1423-24 (10th Cir. 1997). The claims against Corcoran and Nines are based on their knowledge

of plaintiff's complaints about his medical care as evidenced by their signatures on his ARP

responses and appeals. Further, plaintiff alleges Corcoran and Nines are liable because they failed

to enforce procedures regarding medical care or to make further inquiry about whether he received

his medications. ECF 15 at pp. 10-12. Corcoran and Nines investigated his claims, however, and

when some were found meritorious appropriate action was taken. That they found plaintiff's other

claims unsupported after investigation does not show they denied or.interfered with his medical

_care.

There is no respondeat superior liability under § 1983. Ashcroft v. Iqbal, 556 U.S. 662,

676 (2009) (“Because vicarious liability is inapplicable to... § 1983 suits, a plaintiff must plead

that each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.”); see also Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017); Zove-

Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004); Trulock v, Freeh, 275 F.3d 391, 402 (4th Cir.

2001). To the extent plaintiff seeks to impose liability on Corcoran and Nines as supervisory

officials, such claims in a § 1983 action are “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) (citing Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984)). To

12

establish supervisory liability, a plaintiff must show the “supervisor had actual or constructive

knowledge that his subordinate was engaged in conduct that posed ‘a pervasive and unreasonable

risk’ of constitutional injury” to the plaintiff, (2) that the supervisor’s response was so “inadequate

as to show ‘deliberate indifference to or tacit authorization’” and (3) that there was an “‘affirmative

causal link’ between the supervisor’s inaction and the particular constitutional injury suffered by

the plaintiff.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal citations omitted).

Medical services are provided to NBCI inmates by a private medical contractor. Nines’s

Decl. ECF 25-3 3. Nines does not supervise the medical contractor’s medical staff. Nines states

that he has no authority to make decisions concerning any inmate’s medical care or to order

medical staff to provide a particular medical procedure or particular treatment. /@. Further, Nines

is not responsible under the medical contract for monitoring medical services for NBCI inmates,

is not licensed to practice medicine, and defers to the expertise of medical staff for inmate care

and treatment. fd. Nines explains that when an inmate completes a sick call slip for medical

evaluation and treatment, the medical contractor collects and reviews the sick call slip, and then

determines appointment dates and times. Jd at 94. Further, whien he responds to inmate

complaints about medical care, he relies on the reports, assessments and judgments of the

contractor’s medical staff to prepare a response for his signature. at ]5. Nines denies interfering

with, hindering or delaying plaintiff's medical treatment. at JJ6. Plaintiff provides no

_ declaration to refute Nines’s assertions.

Plaintiff's ARP complaints were reviewed and then assigned to medical staff for

investigation. After investigation and recommendation, the ARP or appeals decisions were

rendered. To the extent plaintiff suggests the State Defendants, based on one or two ARP

responses, are culpable for failing to ensure medical protocols are followed, a genuine dispute of

13

material fact may not be created through speculation or “compilation of inferences.” Shin v.

Shalala, 166 F. Supp. 2d 373, 375 (D. Md. 2001). Further, in instances where the investigation

revealed that protocols were not followed, corrective measures were taken and staff were

instructed to observe those protocols. There is no evidence that’ Corcoran and Nines took any

deliberate steps to interfere with plaintiff's medical care, nor did they turn a blind eye to clear

failures to observe necessary protocols when there was evidence to support that claim. C.f Gordon

v, Schilling, No. 17-7298, at 18 (4th Cir. Sept. 4, 2019) (finding a factfinder could conclude that

the Department of Corrections Health Services Director.disregarded a substantial risk of harm to

a prisoner from Hepatitis C Virus when he “repeatedly passed the buck” and informed the prisoner

to submit sick calls when he knew that guidelines prevented prison doctors from ordering the

appropriate treatment). Absent such evidence, a claim of supervisory liability is simply

unsupported. Accordingly, the State Defendants’ motion for summary judgment will be granted.

Plaintiff claims that defendants violated his rights under the Equal Protection Clause

without providing an explanation or supporting facts. Plaintiffs conclusory assertion fails to show

that he “has been treated differently from others with whom he is similarly situated and that the

unequal treatment was the result of intentional or purposeful discrimination.” Morrison □

Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Accordingly, the complaint fails to establish an

equal protection claim.

E. State Law Claims

It is unclear in the complaint what state laws or departmental regulations plaintiff asserts

have been violated by Corcoran and Nines. To the extent plaintiff has raised any claims premised

on state law against Corcoran and Nines, the court declines to exercise supplemental jurisdiction.

28 U.S.C. § 1367(c}(3). When “the federal-law claims have dropped out of the lawsuit in its early

14

stages and only state law claims remain, the federal court should decline the exercise of jurisdiction

by dismissing the case without prejudice.” Carnegie-Mellon Univ. y. Cohill, 484 U.S. 343, 350

(1988) (footnote omitted) (citing United Mine Workers of America y. Gibbs, 383 U.S. 715, 726—

27 (1966)). Plaintiff's state claims will be dismissed without prejudice.

i. Claims Against the Medical Defendants

Plaintiff asserts the Medical Defendants violated his rights under the Eighth Amendment

by denying him necessary medical care and failing to refill his prescriptions as retaliation for his

involvement in an incident with correctional officers. ,

In regard to his claim that he was denied medical care, plaintiff and the Medical Defendants

have filed declarations offering differing accounts of plaintiff's symptoms and medical care

provided to him on January 26, 2017. The parties dispute whether the Medical Defendants

deliberately falsified medical records with unlawful retaliatory intent because plaintiff was

involved in a use of force incident with corrections staff. Plaintiff does not allege, however, that

Browning or Showalter were personally involved in collecting or reviewing sick call requests or

ordering his medical refills later in 2017.

Viewed in the light most favorable to plaintiff, there is a genuine dispute of material fact

as to whether Browning and Showalter acted with deliberate indifference to deny him medical care

on January 26, 2017, in retaliation for his involvement in the assault incident earlier that day. The

parties' declarations offer differing accounts and raise issues of credibility, inappropriate for

resolution on summary judgment. Plaintiff has provided no evidence to create a genuine dispute

of material fact, however, as to whether Browning and Showalter denied plaintiff medical care

relating to the later allegations concerning sick call requests and medical refills. Accordingly, the

court will deny in part the Medical Defendants’ motion for summary judgment as to the January

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26, 2017 medical care claims, and will grant in part the motion for summary judgment as to all

other claims. Plaintiff will be granted twenty-eight days to move for appointment of counsel.

CONCLUSION

For these reasons, the court will grant the State Defendants’ motion for summary judgment

(ECF 25) and will grant in part and deny in part the Medical Defendants’ motion for summary

judgment (ECF 27). A separate Order follows.

Cus

Yl

Date Catherine C. Blake

United States District Judge

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