Murrill v. Hough

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

LONNIE K. MURRILL

:

v. : Civil Action No. DKC 17-2255

:

OTIS MERRITT, WARDEN, et al.

:

MEMORANDUM OPINION

Presently pending and ready for resolution in this civil

rights case are: Defendant Kevin Hickson’s (“Mr. Hickson”) motion

to dismiss (ECF No. 93), Defendant Wexford Health Sources, Inc.’s

(“Wexford”) motion to dismiss (ECF No. 98), and Plaintiff’s motions

for entry of default against Defendants Kelcie Hough (ECF No. 105)

and Sunday Ogundipe (ECF No. 106). The issues have been fully

briefed, and the court now rules, no hearing being deemed

necessary. Local Rule 105.6. For the following reasons, the

motion to dismiss filed by Defendant Hickson will be denied. The

motion to dismiss filed by Defendant Wexford will be granted. The

motions for entry of default against Defendants Hough and Ogundipe

will be granted.

I. Background

Unless otherwise noted, the facts outlined here are set forth

in the third amended complaint and construed in the light most

favorable to Plaintiff. In January 2013, Mr. Murrill was placed

into the pre-trial custody of the Maryland Department of Public

Safety and Correctional Services (“DPSCS”) at the Baltimore City

Detention Center (“BCDC”)1. Shortly thereafter, he was convicted

and sentenced. Following sentencing, he was supposed to be

transferred to the Maryland Department of Corrections (“DOC”) and

housed in protective custody because he required special

protection from other inmates. Mr. Murrill was instead left at

BCDC and housed in administrative segregation—a section designated

for inmates posing a serious threat to the general population. On

January 27, 2015, an inmate by the name of Joel Santiago viciously

assaulted another inmate. As a result, DPSCS officials placed Mr.

Santiago into administrative segregation in a shared cell with Mr.

Murrill located on the T block.

Mr. Santiago’s placement into Mr. Murrill’s cell caused him

to fear for his safety as Mr. Santiago was known among the

prisoners for his violence and possessed the delusion that Mr.

Murrill was sent there to kill him. Mr. Murrill orally requested

a transfer several times to no avail. On February 15, 2015, Mr.

Murrill filed an official grievance with the BCDC Resident

Grievance Office (“RGO”) requesting an immediate transfer.

In the early morning hours of February 16, 2015, Mr. Santiago

brutally attacked Mr. Murrill until he lay incapacitated on the

1 Medical services for incarcerated individuals at BCDC were

provided by Wexford.

floor of their shared cell. During the attack, Mr. Murrill cried

out for help but received no assistance from any BCDC guards.

While Section T, the area in which Mr. Murrill was housed during

the attack, was a two-man post, it was staffed by only one guard

at the time of the attack. The guards are supposed to conduct

rounds at regular intervals to observe inmates but failed to do so

in the hours after the attack. As a result, Mr. Murrill was not

found and seen by a doctor until 12:09 PM that day.

Mr. Murrill was ultimately sent to the R. Adams Cowley Shock

Trauma Center in Baltimore where he was treated for three days.

On February 19, 2015, he was moved to an infirmary bed at

Metropolitan Transition Center (“MTC”). Staff at MTC were unable

to get in contact with Wexford to discuss his condition. On March

11, 2015, Mr. Murrill was transferred back to BCDC. He was

scheduled to see a neurosurgeon on March 18, 2015 but was not seen

until almost a month later on April 16, 2015. Mr. Murrill was

then transferred to the wrong prison and deprived of his prescribed

psychiatric and somatic medications. He continued to be wrongfully

transferred between prisons and deprived of his prescriptions for

more than three months after the attack.

Mr. Murrill sustained permanent neck and spine injuries from

the attack. No record of the attack was included in the Section

T Logbook or the BCDC Serious Incident Reports and Mr. Santiago

was never formally reprimanded for the attack.

II. Procedural History

On August 7, 2017, Mr. Murrill, proceeding pro se, filed a

complaint against BCDC and BCDC’s Warden, Otis Merritt. (ECF No.

1). On September 17, 2017, still proceeding pro se, Mr. Murrill

filed an amended complaint. (ECF No. 3). On March 15, 2018,

Warden Merritt and BCDC jointly filed a motion to dismiss the

amended complaint. (ECF No. 18). On June 26, 2018, Mr. Murrill

filed his opposition (ECF No. 23), and a second amended complaint

adding additional defendants. (ECF No. 24). On January 14, 2019,

the court dismissed the claims asserted against BCDC, deferred

ruling on the claims against Warden Merritt, appointed counsel for

Mr. Murrill, and granted leave to amend the second amended

complaint. (ECF No. 27). On November 14, 2019, Mr. Murrill,

through counsel, filed the presently pending third amended

complaint against twenty-three defendants alleging a violation of

his Eighth Amendment rights (Count I), a violation of his

Fourteenth Amendment Due Process rights (Count II), a violation of

the Maryland Code of Correctional Services (Count III), gross

negligence (Count IV), and negligence (Count V). (ECF No. 45).

Most of the defendants answered the third amended complaint. Two

filed motions to dismiss: on May 26, 2020, Mr. Hickson filed a

motion to dismiss (ECF No. 93-1) and on July 9, 2020, Wexford filed

a motion to dismiss. (ECF No. 98). On July 19, 2020, Mr. Murrill

responded to Mr. Hickson’s motion. (ECF No. 101). On July 30,

2020, Mr. Hickson replied. (ECF No. 102). On August 6, 2020, Mr.

Murrill responded to Wexford’s motion. (ECF No. 93). On August

22, 2020, Wexford replied. (ECF No. 104). Two defendants have

not appeared at all and, on September 3, 2020, Mr. Murrill filed

motions for entry of default against Defendant Hough (ECF No. 105)

and Defendant Ogundipe (ECF No. 106).

III. Motion to Dismiss

A. Standard of Review

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the

sufficiency of the complaint. Presley v. City of Charlottesville,

464 F.3d 480, 483 (4th Cir. 2006). A plaintiff’s complaint need

only satisfy the standard of Rule 8(a), which requires a “short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule 8(a)(2) still

requires a ‘showing,’ rather than a blanket assertion, of

entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 n.3 (2007). That showing must consist of more than “a

formulaic recitation of the elements of a cause of action” or

“naked assertion[s] devoid of further factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations

omitted).

“[W]hile a plaintiff is not required to plead facts that

constitute a prima facie case in order to survive a motion to

dismiss, [f]actual allegations must be enough to raise a right to

relief above the speculative level.” Coleman v. Maryland Court of

Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d sub nom. Coleman

v. Court of Appeals of Maryland, 566 U.S. 30 (2012) (internal

quotation marks and citation omitted).

At this stage, all well-pleaded allegations in a complaint

must be considered as true, Albright v. Oliver, 510 U.S. 266, 268

(1994), and all factual allegations must be construed in the light

most favorable to the plaintiff, see Harrison v. Westinghouse

Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan

Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In

evaluating the complaint, unsupported legal allegations need not

be accepted. See Revene v. Charles County Comm’rs, 882 F.2d 870,

873 (4th Cir. 1989). Legal conclusions couched as factual

allegations are insufficient, Iqbal, 556 U.S. at 678, as are

conclusory factual allegations devoid of any reference to actual

events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th

Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th

Cir. 2009). “[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the

complaint has alleged, but it has not ‘show[n] . . . that the

pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting

Fed.R.Civ.P. 8(a)(2)). Thus, “[d]etermining whether a complaint

states a plausible claim for relief will . . . be a context-

specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Id.

B. Analysis

1. Mr. Hickson’s Motion to Dismiss

Mr. Hickson argues that the third amended complaint should be

dismissed as to him because its “failure to allege any facts

demonstrating [his] personal involvement in the alleged

deprivation of [Mr.] Murrill’s civil rights is dispositive of

Counts 1 [] and 2 [] because personal involvement is an essential

element of claims arising under 42 U.S.C. § 1983.” (ECF

No. 93-1, at 1). He further argues that he is entitled to

qualified immunity for Counts I and II and to statutory immunity

for counts III, IV, and V, and that all claims are barred by the

three-year statute of limitations.

a. 42 U.S.C. § 1983 Claims

1) Count I

Mr. Murrill alleges in Count I that Mr. Hickson violated his

Eighth Amendment right by acting with deliberate indifference in

both his failure to protect Murrill from the attack and by failing

to ensure he received proper and timely care after the attack.

“The [E]ighth [A]mendment protects a convicted inmate from

physical harm at the hands of fellow inmates resulting from the

deliberate or callous indifference of prison officials to specific

known risks of such harm, just as it protects against harm

resulting from deliberate indifference of prison officials to

serious medical needs.” Pressly v. Hutto, 816 F.2d 977, 979 (4th

Cir. 1987) (internal quotation marks and citation omitted). In

order to state a claim for failure to protect, an inmate must plead

facts that show that he was incarcerated under conditions posing

a substantial risk of serious harm, that the official was

deliberately indifferent to that substantial risk to his health

and safety, and that the official’s deliberate indifference caused

him harm. Deliberate indifference is a subjective standard,

meaning that the prison official must have actually known or been

aware of the excessive risk to inmate safety. See Makdessi v.

Fields, 789 F.3d 126, 133 (4th Cir. 2015).

“Whether a prison official had the requisite knowledge of a

substantial risk is a question of fact subject to demonstration in

the usual ways, including inference from circumstantial evidence

. . . and a factfinder may conclude that a prison official knew of

a substantial risk from the very fact that the risk was obvious.”

Farmer v. Brennan, 511 U.S. 825, 842 (1994). For example, if a

plaintiff presents evidence showing that a

substantial risk of inmate attacks was

longstanding, pervasive, well-documented, or

expressly noted by prison officials in the

past, and the circumstances suggest that the

defendant-official being sued had been exposed

to information concerning the risk and thus

must have known about it, then such evidence

could be sufficient to permit a trier of fact

to find that the defendant-official had actual

knowledge of the risk.

Id. In Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985), the

court found that “personal involvement stemming from [one’s]

duties as Warden [could be sufficient] to establish a basis for

§ 1983 liability.”

“[L]iability under 42 U.S.C. § 1983 must be premised on

personal conduct and cannot rest on respondeat superior.” Monell

v. Dept. of Social Services, 436 U.S. 658, 691–695 (1978). A

supervisor may be liable, however, if his alleged supervisory

indifference or tacit authorization of subordinate misconduct is

a causative factor in a person’s constitutional injuries. See

Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984) (“supervisory

officials may be held liable in certain circumstances for the

constitutional injuries inflicted by their subordinates”).

In the context of a failure to protect claim, however, a

plaintiff “assumes a heavy burden of proof . . . [h]e not only

must demonstrate that the prisoners face a pervasive and

unreasonable risk of harm from some specified source, but he must

show that the supervisor's corrective inaction amounts to

deliberate indifference or ‘tacit authorization of the offensive

[practices].’” Id. at 373, citing Orpiano v. Johnson, 632 F.2d

1096, 1101 (4th Cir. 1980). A supervisor’s “continued inaction in

the face of documented widespread abuses,” id., might prove such

a state of mind. “The proper question is whether [a supervisor]

acted wantonly, obdurately, or with deliberate indifference to the

pervasive risk of harm.” Moore v. Winebrenner, 927 F.2d 1312,

1315 (4th Cir. 1991). If these requirements are not met, a

supervisor is not directly liable.

Here, Mr. Hickson argues that Mr. Murrill fails to allege

facts sufficient to either show or infer that he acted with

deliberate indifference because “[t]he sole allegations specific

to Mr. Hickson are [that] ‘Defendant Kevin Hickson is an individual

over the age of 18, and was a Duty Lieutenant assigned to BCDC

Section T during the C shift on February 15, 2015.’” (ECF No.

102, at 2) (citing ECF No. 45, ¶ 26). Mr. Murrill responds that

“there is more than a plausible inference” that Mr. Hickson knew

about the risk Mr. Santiago posed to his safety because among other

things, he “directly complained to Hickson about Santiago” and

“complained to officers that reported directly to Hickson.” (ECF

No. 101, at 16-17). In actuality, the amended complaint alleges

only that “Mr. Murrill orally requested a transfer several times”

(not that he complained directly to Mr. Hickson) and that he “filed

an official grievance with the BCDC Resident Grievance Office” the

day before the attack (but not that any person he complained to

reported directly to Mr. Hickson).2 (ECF No. 45, ¶¶ 57-58).

2 A complaint may not be amended simply by mentioning

additional facts in response to a motion to dismiss, and the

complaint has already been amended several times. Nevertheless,

should Plaintiff seek once more to amend, leave ordinarily is

denied “only when the amendment would be prejudicial to the

opposing party, there has been bad faith on the part of the moving

Even without those specific allegations, however, the

remaining allegations contained in the third amended complaint,

when taken together and viewed in the light most favorable to

Plaintiff, are sufficient to draw a reasonable inference that Mr.

Hickson had personal knowledge of the substantial risk of serious

harm facing Mr. Murrill. Such allegations include that Mr.

Hickson: (1) held a supervisory role as Duty Lieutenant at BCDC;

(2) was on duty for Section T during the time of the attack; (3)

failed properly to staff the block holding Mr. Murrill and to

ensure body checks were conducted at regular intervals; (4) failed

to add an entry noting the attack to the Section T Logbook; and

(5) failed to reprimand Mr. Santiago for the attack. (ECF No. 45,

¶¶ 26, 61-64). The third amended complaint further alleges that

Defendants: (1) were aware Mr. Murrill required protective

custody; (2) were on notice that Mr. Santiago posed a general

danger to other inmates given his previous attack of an inmate;

(3) were on notice about the danger Mr. Santiago posed specifically

to Mr. Murrill because he repeatedly requested transfer in the

three weeks preceding the attack and because he filed a formal

grievance the day before the attack; (4) failed to comply with

party, or the amendment would be futile.” Johnson v. Oroweat Foods

Co., 785 F.2d 503, 509 (4th Cir. 1986); see also Mayfield v.

National Ass'n for Stock Car Auto Racing, Inc., 674 F.2d 369, 379

(4th Cir. 2012). An amendment is futile if it could not withstand

a motion to dismiss. See Perkins v. U.S., 55 F.3d 910, 917 (4th

Cir. 1995).

DPSCS and BCDC policies; (5) failed to take available reasonable

measures to protect Mr. Murrill; and (6) failed to stop the attack

while it occurred despite Mr. Murrill’s cries for help. (ECF No.

45, ¶¶ 48-54, 58, 61-64, 108-113). Here, as in Wright, “[i]t is

conceivable that, if [Murrill] is permitted to press his claim on

the merits, he may be able to show sufficient personal involvement

stemming either from [Hickson’s] duties as [Duty Lieutenant] or

from his receipt of notification” from various possible sources

that Mr. Santiago posed a substantial threat to inmate safety.

Similarly, Mr. Murrill has sufficiently alleged that Mr.

Hickson acted with deliberate indifference to his plainly obvious

serious medical needs following the attack. To state a claim for

denial of medical care, an inmate must plead facts that show “that

the actions of the defendants or their failure to act amounted to

deliberate indifference to a serious medical need.” Barnes v.

Wilson, 110 F. Supp. 3d 624, 631 (D.Md. 2015) (citing Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). “Deliberate indifference to a

serious medical need requires proof that, objectively, 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.” Id.

It is undisputed that Mr. Murrill was suffering from an

objectively serious medical need. (See generally ECF Nos. 45; 93-

1). With respect to the subjective knowledge prong, Mr. Murrill

alleges that Mr. Hickson failed to monitor his safety when locked

in a cell with a cellmate known to be dangerous and failed to

respond in any capacity to his repeated cries for help during the

attack. These failures resulted in a nearly eight-hour delay in

learning of Mr. Murrill’s serious injuries and getting him medical

attention. As stated above, “a factfinder may conclude that a

prison official knew of a substantial risk from the very fact that

the risk was obvious.” Farmer, 511 U.S. at 842. Mr. Murrill’s

allegations support a reasonable inference that Mr. Hickson was

deliberately indifferent to his serious medical needs following

the attack.

Finally, contrary to Mr. Hickson’s assertion, Mr. Murrill

makes clear that he does not seek to hold him liable in his

supervisory capacity under a theory of respondent superior, but

rather for his personal involvement in failing to protect him from

a substantial risk of harm or for his allegedly tacit approval of

misconduct by subordinate prison officials.

Mr. Hickson also argues that he is entitled to qualified

immunity because, even if Mr. Murrill has stated a claim, it cannot

be said that that his actions violated a “clearly established”

right. (ECF No. 102, at 16). Qualified immunity “protects

government officials from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

citations omitted). To establish a qualified-immunity defense, a

public official must show that (1) a plaintiff has not alleged or

shown facts that “make out a violation of a constitutional right,”

or that (2) “the right at issue was [not] clearly established at

the time of” its alleged violation. Id. at 232.

A qualified immunity defense can be presented

in a Rule 12(b)(6) motion, but, as the Second

Circuit has noted, when asserted at this early

stage in the proceedings, the defense faces a

formidable hurdle and is usually not

successful. This is so because dismissal

under Rule 12(b)(6) is appropriate only if a

plaintiff fails to state a claim that is

plausible on its face.

Owens v. Balt. City State’s Att’ys Office, 767 F.3d 379, 395–96

(4th Cir. 2014) (internal quotation marks and citations omitted).

As discussed, Mr. Murrill has “provide[d] sufficient detail about

his claim to show that he has a more-than-conceivable chance of

success on the merits.” Twombly, 550 U.S. at 570. Accordingly,

dismissal on qualified immunity grounds is inappropriate.

2) Count II

Mr. Murrill alleges in Count II that Mr. Hickson violated his

Fourteenth Amendment Due Process rights due to a failure “to timely

and fully process his grievances before and after the attack.”

(ECF No. 45, ¶ 123). The majority of the allegations contained in

Count II involve Defendants’ failure timely to process grievances

submitted by Mr. Murrill after the attack. One allegation,

however, is that Defendants failed timely to process a formal

grievance that Mr. Murrill filed the day before the attack. (ECF

No. 45, ¶¶ 7-8) (“On February 15, 2015, Mr. Murrill filed an

official grievance complaining about his housing situation and

requesting to be put in a different cell because of his prescient

concern for his life and safety from Santiago. Defendants failed

to act.”).

Mr. Hickson argues that Count II fails to state a claim

because it “alleges no facts linking Mr. Hickson to the receipt or

processing of Mr. Murrill’s grievances.” (ECF No. 93-1, at 16).

Mr. Murrill replies that “the day before his brutal attack, [he]

filed an official grievance with the BCDC RGO” and that “[c]learly,

there is more than a plausible inference that the Duty Lieutenant

would have been aware of this threat.” (ECF No. 101, at 17).

This conclusion is unsupported. Mr. Murrill alleges no facts

allowing for the inference that by virtue of his role as Duty

Lieutenant, Mr. Hickson would have had any involvement in the RGO’s

processing of his pre-attack grievance. Mr. Murrill has also not

alleged that any RGO employee would have formally or informally

communicated information it received in a grievance to Mr. Hickson.

Thus, even when viewed in the light most favorable to Plaintiff,

the complaint fails sufficiently to allege that Mr. Hickson was

personally involved in the untimely handling of the February 15,

2015 grievance.

Likewise, Mr. Murrill has also failed to allege Mr. Hickson’s

personal involvement in any failures timely to process his post-

attack grievances. Mr. Murrill’s allegations include that: (1)

for the month that he was held at the Maryland DOC infirmary while

recovering from the attack, the officers there gave him misleading

information on how to submit grievances resulting in his grievances

being sent to the wrong places; (2) MTC failed to conduct a timely

review of his complaint resulting in the BCDC RGO’s dismissal of

his complaint as untimely; (3)the IGO delayed informing him that

it lacked jurisdiction over the BCDC; (4) BCDC’s grievance

procedure was not available to him while housed outside BCDC (due

to his infirmary stay and subsequent erroneous transfers); and (5)

BCDC’s grievance procedure was permanently foreclosed by the

facility’s closure in July 2015. (See ECF No. 45, ¶¶ 77-103).

Most of these allegations pertain only to actions taken by

Maryland DOC, MTC, or DPSCS IGO officials. Mr. Murrill never

alleges, however, that Mr. Hickson had any communication or

involvement with these officials. The only allegations that could

be construed as possibly relating to Mr. Hickson are those

involving the BCDC RGO’s rejection of Mr. Murrill’s complaint as

“untimely.” Yet such allegations neither state nor imply that Mr.

Hickson had any involvement in the BCDC RGO’s decision to reject

his complaint. In sum, Mr. Murrill has not plead facts stating

that Mr. Hickson played any role in the untimely processing of

either his pre-attack or post-attack grievances.

b. State Claims

As to Counts III, IV, and V, Mr. Hickson argues he is entitled

to statutory immunity because Mr. Murrill has not sufficiently

alleged that he acted with malice or gross negligence. (ECF No.

102, at 7).

“[G]enerally[,] under common law, the State [and its

employees] enjoy[] sovereign immunity and [are] thus protected

from suit for both ordinary torts and State constitutional torts.

The State, however, has partially waived this immunity by statute.”

Ford v. Baltimore, 149 Md.App. 107, 120 (2002). The Maryland Torts

Claim Act (“MTCA”) waives immunity for tort liability “[if] the

State employee has acted with malice or gross negligence.” Id.;

see also Md. Code, Cts. & Jud. Proc. § 5-522(b) (2006). In such

instances, “the injured party may [] bring a viable tort claim

against the State employee.” Id.

Whether or not gross negligence exists

necessarily depends on the facts and

circumstances in each case[,] and is usually

a question for the jury and is a question of

law only when reasonable [people] could not

differ as to the rational conclusion to be

reached. Ordinarily, unless the facts are so

clear as to permit a conclusion as a matter of

law, it is for the trier of fact to determine

whether a defendant’s negligent conduct

amounts to gross negligence.

Cooper v. Rodriguez, 443 Md. 680, 708–09 (2015) (internal quotation

marks and citation omitted). Based on the totality of the

allegations contained in Mr. Murrill’s third amended complaint, a

reasonable trier of fact could find that Mr. Hickson acted with

gross negligence. Therefore, the issue cannot be resolved as a

matter of law and dismissal on statutory immunity grounds is

inappropriate.

c. Statute of Limitations

Mr. Hickson argues that all claims against him are time barred

because the third-amended complaint was filed outside of the

statute of limitations period and does not relate back to the

original complaint under Fed.R.Civ.P. 15(c). (ECF No. 93-1, at

19-22). Mr. Murrill, on the other hand, contends that his claims

against Mr. Hickson sufficiently relate back to the original

complaint because both complaints allege a single, continuous fact

pattern. (ECF No. 101, at 13-16).

The statute of limitations is an affirmative defense that a

party typically must raise in a pleading under Rule 8(c) and is

not usually an appropriate ground for dismissal. See Eniola v.

Leasecomm Corp., 214 F.Supp.2d 520, 525 (D.Md. 2002); Gray v.

Metts, 203 F.Supp.2d 426, 428 (D.Md. 2002). Dismissal is proper,

however, “when the face of the complaint clearly reveals the

existence of a meritorious affirmative defense.” Brooks v. City

of Winston–Salem, 85 F.3d 178, 181 (4th Cir. 1996); see 5B Charles

A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357,

at 714 (3d ed. 2004) (“A complaint showing that the governing

statute of limitations has run on the Plaintiff’s claim for relief

is the most common situation in which the affirmative defense

appears on the face of the pleading and provides a basis for a

motion to dismiss under Rule 12(b)(6).”).

It is not clear from the face of the complaint that the third

amended complaint does not relate back to the date of the original

filing. See Fed.R.Civ.P. 15(c). It is not obvious that Defendant

Hickson “should [not] have expected, within the limitations

period, that [he] was meant to be named a party in the first

place.” Goodman v. Praxair, Inc., 494 F.3d 458, 471 (4th Cir.

2007). Thus, the defense is not appropriately considered at this

time and will not bar the addition of Mr. Hickson as a defendant.

2. Wexford’s Motion to Dismiss

Wexford argues that it should be dismissed as a defendant

because the third amended complaint fails to state a claim against

it under 42 U.S.C. § 1983 or under state law for gross or simple

negligence. Wexford further argues that all claims are time-

barred.

a. 42 U.S.C. § 1983 Claim

Mr. Murrill alleges in Count IV that Wexford violated his

Eighth Amendment right by acting with deliberate indifference to

his serious medical needs. A prisoner has a constitutional right

to the medical care necessary to address his serious medical needs.

See Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). A prison

official’s “deliberate indifference to an inmate’s serious medical

needs constitutes cruel and unusual punishment under the Eighth

Amendment.” See Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir.

2014). The necessary showing of deliberate indifference can be

manifested by prison officials in responding to a prisoner’s

medical needs in various ways, including intentionally denying or

delaying medical care, or intentionally interfering with

prescribed medical care. See Estelle, 429 U.S. at 104-05.

Importantly, a judicial assessment of deliberate indifference has

two aspects — an objective inquiry and a subjective inquiry. See

Jackson, 775 F.3d at 178.

To satisfy the objective inquiry of a deliberate indifference

claim, “the inmate’s medical condition must be serious — 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.” Id. To satisfy the

subjective inquiry of a deliberate indifference claim, the

plaintiff must show that the official “knows of and disregards an

excessive risk to inmate safety or health.” See Farmer, 511 U.S.

at 837. “Where a deliberate indifference claim is predicated on

a delay in medical care . . . there is no Eighth Amendment violation

unless ‘the delay results in some substantial harm to the patient,’

such as a ‘marked’ exacerbation of the prisoner’s medical condition

or ‘frequent complaints of severe pain.’” Formica v. Aylor, 739

F.App'x 745, 755 (4th Cir. 2018) (citing Webb v. Hamidullah, 281

F. App’x 159, 166-67 (4th Cir. 2008)).

A corporation cannot be held liable under § 1983 unless the

entity’s policies or customs caused one or more of its employees

to deprive the plaintiff of a federally protected right. See

Monell v. Dept. of Social Servs., 436 U.S. 658, 690-92 (1978); see

also Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982).

A plaintiff may demonstrate the existence of an official policy in

three ways: (1) a written ordinance or regulation; (2) certain

affirmative decisions of policymaking officials; or (3) in certain

omissions made by policymaking officials that “manifest deliberate

indifference to the rights of citizens.” See Carter v. Morris,

164 F.3d 215, 218 (4th Cir. 1999). An official policy may be

created “by making a single decision regarding a course of action

in response to particular circumstances.” Semple v. City of

Moundsville, 295 F.3d 708, 712 (4th Cir. 1999) (citing Pembaur v.

Cincinnati, 475 U.S. 468, 481 (1986)).

Wexford argues that Mr. Murrill’s § 1983 claim should be

dismissed because his third amended complaint (1) fails to allege

facts showing or permitting the inference that any person was

deliberately indifferent to a serious medical need and (2) fails

to allege facts showing or permitting the inference that Wexford

had a policy or custom that led to any person being deliberately

indifferent to his serious medical needs. (ECF No. 98, at 7-8).

Mr. Murrill responds that “unreasonable delay in medical treatment

on its own may amount to” deliberate indifference and that “taken

together, [his assertions] are surely sufficient to allege

deliberate indifference.” (ECF No. 103, at 15). To support this,

he points to the following facts: (1) he was scheduled to see a

neurosurgeon on March 18, 2015 but was “inexplicably not seen until

almost a full month later” (ECF No. 45, at ¶ 74); (2) Wexford

“ignored attempts by medical staff at MTC to obtain a status report

on [his] condition and as a result all attempts at contact between

the medical teams failed”3 (ECF No. 103, at 15); and (3) several

improper transfers “regularly deprived [him]” of his prescribed

psychiatric and somatic medications, in some instances, for “more

than three months.” (Id., ¶¶ 75-76).

Mr. Murrill is correct that “a delay of medical care can be

deliberate indifference when it results in some substantial harm

to the Plaintiff, such as exacerbation of the injury or

unnecessarily prolonging the inmate’s pain.” (ECF No. 103, at

15); see Aylor, 739 Fed.Appx. 745, 755. Here, however, Mr. Murrill

3 The text of the third amended complaint actually states only

that “MTC medical staff were unable to reach BCDC medical to give

a report on Mr. Murrill’s condition, so all attempts at contact

between the medical teams failed.” (ECF No. 45, ¶ 72).

has failed to allege with any specificity how the postponed

neurology appointment or delay in receiving his prescriptions

resulted in a substantial harm to him. For example, he does not

state that either delay prolonged his pain. He states that he

continues to suffer from physical and emotional ailments resulting

from the attack but never alleges that such ongoing ailments are

causally related to the delay of his neurology appointment or in

receiving his prescriptions. He also does not allege anywhere in

the complaint that the failed communications between MTC and

Wexford caused him any harm.

Even if Mr. Murrill had alleged that any person employed by

Wexford acted with deliberate indifference, he has not pled facts

that allow for the inference that Wexford had a custom or policy

that caused any such person to deprive him of a federally protected

right. He has pointed to no written ordinance or regulation by

Wexford, and no affirmative decision or omission by a Wexford

policymaking official. Mr. Murrill attempts to argue he has

sufficiently alleged the existence of a policy or custom by

analogizing to Owens v. Balt. City State's Att’ys Office, 767 F.3d

379, 402 (4th Cir. 2014). There, the plaintiff’s complaint survived

a motion to dismiss because it alleged that a series of reported

and unreported cases established that the defendant had a custom

or policy of unconstitutional practices. Mr. Murrill points to

two cases where it was alleged that Wexford had an unconstitutional

policy or practice of denying medical care to inmates and baldly

states that, “the case law in this District is replete with

examples of Wexford’s unconstitutional policies and/or customs.”

(ECF No. 103, at 17). Plaintiff’s analogy to Owens is fruitless

because such allegations appear nowhere in his third amended

complaint and surface for the first time only in his response.

Mr. Murrill has failed to state a § 1983 claim against Wexford.

b. State Claims

Wexford next argues that Mr. Murrill fails to state any

negligence claim against it under Maryland law because he fails to

allege the applicable standard of care owed by any Wexford

employee, how that standard of care was breached, or that Mr.

Murrill suffered any injury proximately caused by any breach. (ECF

No. 104, at 7). Wexford further argues that Mr. Murrill’s

negligence claims are subject to the requirements of the Maryland

Health Care Malpractice Claims Act (“HCMCA”) and thus, his failure

to arbitrate requires dismissal. (Id., at 7.) Mr. Murrill, on

the other hand, argues that Wexford “overstates the scope of the

HCMCA” and instead contends that the HCMCA does not apply to his

claims against Wexford because it does not apply to ordinary

negligence claims. (ECF No. 103, at 19).

The HCMCA provides: “A person having a claim against a health

care provider for damage due to a medical injury shall file the

claim with the Director [of the Health Care Alternative Dispute

Resolution Office (“HCAO”) - a unit of the executive branch of

Maryland’s state government]” for arbitration. Md. Code, Cts. &

Jud. Proc. § 3-2A-04 (a)(1). “In general, the [HCMCA] requires

certain medical malpractice claims to be submitted to an

arbitration panel for initial ascertainment of liability and

damages before resort may be had to a court of law for final

determination.” Oxtoby v. McGowan, 294 Md. 83, 86 (1982). “[T]he

legislative mandate that the arbitration procedure under the Act

be followed as a precondition to invoking the general jurisdiction

of a court is analogous to the doctrine of exhaustion of

administrative remedies.” Id., at 91. Section 3–2A–01(g) of the

HCMCA defines “medical injury” as an “injury arising or resulting

from the rendering or failure to render health care.”

The scope of the HCMCA, while initially murky, has long since

been clarified. See Brown v. Rabbitt, 300 Md. 171, 172 (1984)

(“For the third time in little over a year we are called upon to

determine whether a claim against a health care provider is covered

by the Health Care Malpractice Claims Act.”). In determining

whether a claim is subject to the HCMCA, “the critical question is

whether the claim is based on the rendering or failure to render

health care and not on the label placed on the claim. If health

care is or should be rendered and damage results therefrom, then

it is a claim under the Act and must first be arbitrated.” Id.,

at 175. “[O]ur cases make clear that the cause of the injury must

have been ‘a breach by the defendant, in [its] professional

capacity, of [the] duty to exercise . . . professional expertise

or skill’ in rendering or failing to render health care.”

Afamefune ex rel. Afamefune v. Suburban Hosp., Inc., 385 Md. 677,

695 (2005) (internal citations omitted).

When it is clear from the allegations of the

complaint that the plaintiff’s claimed injury

was not inflicted during the rendering or

failure to render medical service or that it

was the result of conduct having utterly no

medical validity in relation to the medical

care rendered, the action properly proceeds in

Circuit Court, without first resorting to

arbitration.

Id. Claims falling outside the scope of the HCMCA include only

“those claims for damages arising from a professional’s failure to

exercise due care in non-professional situations such as premises

liability, slander, assault, etc.” Cannon v. McKen, 296 Md. 27,

37-38 (1983).

The types of cases in which the HCMCA was not applicable

include cases where the plaintiff: (1) was sexually assaulted

during a medical procedure (see Afamefune, 385 Md. 677, 694) (“an

assault, rape or attempted rape can in no way be described as

medical service”); (2) was held down and struck in the face during

a medical procedure (see Nichols v. Wilson, 296 Md. 154 (1983);

and (3) was pricked by an uncapped hypodermic needle left lying on

a surface in a surgical waiting area while accompanying her father

to surgery (see Swam v. Upper Chesapeake Med. Ctr., Inc., 397 Md.

528 (2007)). Even in Cannon, 296 Md. 27, 37-38, where the

plaintiff sued her dentist for injuries she sustained when part of

a dental chair broke loose and fell on her, the court of appeals

remanded the case to the trial court on the ground that the

pleadings were “too sparse to allow a determination of whether

[the plaintiff’s] injury arose because of the defendant’s breach

of his professional duty owed her or because of a breach of duty

which he may have owed her as a premises owner or in some other

non-professional capacity.” In short, “if the trial court is

unable to conclude that the allegations remove the claim from the

Act’s coverage, the court should not exercise jurisdiction over

the claim until a malpractice claim is filed with the HCAO. The

HCAO initially will determine if the claim alleges a “medical

injury” and is therefore subject to the Act. Goicochea v.

Langworthy, 345 Md. 719, 728–29 (1997).

Here, Mr. Murrill’s negligence claims stem from Wexford’s

alleged failure to provide prescription medications, timely to see

him, and to communicate with other medical providers. Such acts

all constitute a “professional duty to exercise the appropriate

care required of a health care provider in a professional

capacity.” Cannon, 296 Md. 27, 37 (1983). Contrary to Mr.

Murrill’s assertions, the fact that he “has not brought a claim

for medical malpractice against Wexford” is not dispositive. (ECF

No. 103, at 20). Thus, Mr. Murrill’s negligence claims fall within

the ambit of the HCMCA and require submission to an arbitration

proceeding as a condition precedent to raising the claim in this

forum. Accordingly, these claims will be dismissed.

IV. Plaintiff’s Motions for Entry of Default

A. Standard of Review

Pursuant to Fed.R.Civ.P. 55(a), “[w]hen a party against whom

a judgment for affirmative relief is sought has failed to plead or

otherwise defend, and that failure is shown by affidavit or

otherwise, the clerk must enter the party's default.” A

defendant’s default does not automatically entitle the plaintiff

to entry of a default judgment; rather, that decision is left to

the discretion of the court. See Dow v. Jones, 232 F.Supp.2d 491,

494 (D.Md. 2002). The United States Court of Appeals for the

Fourth Circuit has a “strong policy” that “cases be decided on

their merits,” id. (citing United States v. Shaffer Equip. Co., 11

F.3d 450, 453 (4th Cir. 1993)), but default judgment may be

appropriate when the adversary process has been halted because of

an essentially unresponsive party, see SEC v. Lawbaugh, 359

F.Supp.2d 418, 421 (D.Md. 2005) (citing Jackson v. Beech, 636 F.2d

831, 836 (D.C. Cir. 1980)).

B. Analysis

1. Defendant Ogundipe

Defendant Sunday Ogundipe was served properly on March 13,

2020. (ECF No. 82). Ms. Ogundipe’s Answer was due on April 3,

2020. Due to the COVID-19 state of emergency, Standing Order

2020-07 provided that all filing deadlines originally set to expire

between March 16, 2020, and June 5, 2020 were to be extended by

eighty-four days, unless “the presiding judge in an individual

case set a different date by an order issued after the date of

this Order.” (ECF No. 86). Thus, Ms. Ogundipe’s deadline for

answering was extended to June 26, 2020. To date, no appearance

or answer on behalf of Ms. Ogundipe has been filed. Accordingly,

Mr. Murrill’s motion for entry of default as to Ms. Ogundipe will

be granted.

2. Defendant Hough

After finding that Mr. Murrill engaged in eight good faith

but unsuccessful attempts to effect personal service on Ms. Kelcie

Hough, the court granted Mr. Murrill’s motion for Alterative

Service on Ms. Hough. (ECF No. 76). Mr. Murrill then mailed the

summons and complaint to Ms. Hough’s address on April 22, 2020.

(See ECF No. 86, Exhibit A). Pursuant to Fed.R.Civ.P. 6(d), Ms.

Hough’s answer was due on May 16, 2020. Standing Order 2020-07

had the effect of extending this deadline to August 8, 2020. To

date, no appearance or answer on behalf of Ms. Hough has been

filed. Accordingly, Mr. Murrill’s motion for entry of default as

to Ms. Hough will be granted.

V. Conclusion

For the foregoing reasons, the motions for entry of default

filed by Plaintiff will be granted, the motion to dismiss filed by

Defendant Hickson will be denied and the motion to dismiss filed

by Defendant Wexford will be granted. A separate order will

follow.

/s/

DEBORAH K. CHASANOW

United States District Judge