Cox v. Getachew

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CHRISTOPHER REGINALD COX, *

Plaintiff, *

v. * Case No. GJH-19-2731

ASRESAHEGN GETACHEW, et al., *

Defendants. *

* * * * * * * * * * * * *

MEMORANDUM OPINION

Plaintiff Christopher Reginald Cox, a prisoner confined at North Branch Correctional

Institution (“NBCI”), brings this civil rights action against Defendants Frank Bishop, Asresahegn

Getachew, Bill Beeman, and Holly Pierce. ECF No. 1. Cox claims Defendants failed to provide

him medical supplies and were deliberately indifferent to his medical needs in violation of the

Eighth Amendment and the Americans with Disabilities Act, 42 U.S.C. §§12101 et seq. ECF No.

1-1 at 4–5. Pending before the Court is Defendant Bishop’s Motion to Dismiss or, in the

Alternative, Motion for Summary Judgment, ECF No. 17, Defendants Getachew, Beeman, and

Pierce’s (collectively “the Wexford Defendants’”) Motion to Dismiss or, in the Alternative,

Motion for Summary Judgment, ECF No. 24, Cox’s Motion to Appoint Counsel, ECF No. 21,

and the Wexford Defendants’ Third Motion for Extension of Time, ECF No. 23. No hearing is

necessary. See Loc. R. 105.6 (D. Md. 2018). For the following reasons, Cox’s Motion to Appoint

Counsel is denied, the Wexford Defendants’ Third Motion for Extension of Time to File Answer

is granted nunc pro tunc, and Defendants’ motions to dismiss or, in the alternative, for summary

judgment are granted.

I. BACKGROUND

A. Plaintiff’s Allegations

In his verified Complaint, Cox states that he has a spinal cord injury, bladder dysfunction,

lower bowel dysfunction, and chronic asthma. ECF No. 1-1 at 3.1 Cox claims that every week he

requires various medical supplies, including two straight catheters, seven condom catheters,

seven diapers, seven “adhesive skin prep,” and three lubricants. Id. He also requires one leg bag

every two weeks and one “Foley bag” each month. Id. According to Cox, on August 1, 2017, he

requested his weekly medical supplies from Nurse Kim, which she denied because the contract

with Wexford, the medical supplier, had terminated. Id. Subsequently, Cox claims he filed a

grievance that was deemed meritorious by the acting warden, Jeff Nines. Id. at 4.

Cox alleges that, despite Cox filing various grievances, Defendants continue to be

deliberately indifferent to his medical needs. For example, Cox filed a grievance on July 16,

2019, after twenty-four hours passed without receiving his medical supplies. Id. at 4. Without

bio-hazard bags, Cox claims he must touch bodily waste and, without access to his medical

supplies, he is forced “to sit on the toilet all day and all night,” causing sleep deprivation as well

as severe pain in his stomach and genitals. Id. at 4–5. According to Cox, he has repeatedly

requested placement in a single medical cell as he has experienced tension and hostility with his

cellmates due to the unsanitary conditions caused by his lack of medical supplies. Id. at 5.

Cox alleges that Defendant Bishop, the warden of NBCI, has failed to “use the full extent

of his powers” to address Cox’s Administrative Remedy Procedure complaints (“ARPs”)

concerning medical supplies, Cox’s need for a single cell, and Cox’s requests to see medical

providers. ECF No. 1 at 2. He also asserts that Defendant Beeman has “not fulfilled his duty as

1 Pin cites to documents filed on the Court’s electronic filing system (CM/EC) refer to the page numbers generated

by that system.

the Medical Nurse Supervisor.” Id. Cox claims that none of his request forms filed between 2018

and 2019 have been answered. Id. Additionally, Cox alleges that Defendant Getachew, the

Medical Director, has not seen Cox for any of his chronic care issues and that Defendant Pierce,

a Medical Chronic Care Provider, has also failed to see him, even though Defendant Bishop

urged her to do so. Id.

B. Cox’s Medical Records

The Wexford Defendants state that Plaintiff is a twenty-nine-year-old male with a

medical history of asthma, a shotgun injury, lumbago, spastic hemiplegia,2 and urinary

incontinence, as well as a mental health history of bipolar disorder and post-traumatic stress

disorder. ECF No. 24-5 ¶ 3. During the period of July 17, 2017 to December 24, 2018, Cox

submitted forty sick call requests, but none complained that he was not receiving his required

medical supplies. See id. ¶ 8; ECF No. 24-4 at 71–111. Below is a summary of those sick calls.

On July 30, 2017, Cox requested toenail clippers during a sick call, and they were

provided. ECF No. 24-4 at 2. On August 1, 2017, Cox was seen for his asthma by Dr. Ashraf in

chronic care, during which his Singulair prescription was refilled and his medical supplies were

ordered—to be supplied weekly—including one 12-inch plain straight catheter, seven size 36

condom catheters, one urinary bag, and one Foley catheter. Id. at 3–7. On August 25, 2017,

during a nurse sick call, Cox was referred to a dentist for medication following oral surgery. Id.

at 8–9. Cox refused to go to the clinic to see Dr. Ashraf on August 29, 2017. Id. at 10–11. Cox

had a nurse sick call visit on October 1, 2017, for ear pain and congestion. Id. at 12–13. On

October 11, 2017, Cox returned to chronic care to see Dr. Ashraf and, during that visit, Cox’s

2 The Wexford Defendants explain that spastic hemiplegia is a type of spasticity affecting one side of the body. ECF

No. 24-3 at 2, see also, Spastic Hemiplegia Cerebral Palsy, Cerebral Palsy Guidance,

https://www.cerebralpalsyguidance.com/cerebral-palsy/types/spastic-hemiplegia/ (last visited February 18, 2021)

(quoting the National Institutes of Health).

asthma was under control, his medications were renewed, and his medical supplies were ordered.

Id. at 14–17. Additionally, during Cox’s October 11, 2017 appointment, Dr. Ashraf ordered a CT

scan of Cox’s neck and face. Id.

On November 11, 2017, Cox was seen by Defendant Pierce and, during the appointment,

informed her that he had neuropathic nerve pain as a result of gunshot wounds suffered in 2014.

Id. at 18–21. Cox requested that his prescriptions for 1200 mg of Neurontin and 20 mg of

Baclofen twice daily be renewed in perpetuity. Id. Cox’s prescriptions for Neurontin and

Singulair were renewed. Id. On December 26, 2017, Cox’s Singulair prescription was renewed

again. Id. at 24.

On January 8, 2018, Cox was seen in chronic care by RNP Self for his asthma. Id. at 25–

27. Defendant Pierce saw Cox again in chronic care on April 4, 2018; she assessed his asthma

and lumbago as stable. Id. at 28–31. On April 13, 2018, Defendant Pierce renewed Cox’s

medical supply order after he reported not receiving them; the order included two standard size

straight catheters per week, seven condom catheters per week, seven diapers per week, one leg

bag every two weeks, one Foley bag per month, seven adhesive skin preps per week, and three

lubricants per week. Id. at 32. No biohazard bags were included in the order. Id. The visit ended

for safety concerns after Cox became angry and stated that he had killed fifteen police officers

and a cellmate and would do it again. Id.

On May 5, 2018, Cox requested renewal of his Nortriptyline and Baclofen prescriptions;

he was referred to a provider for medication renewal. Id. at 34–35. Cox was seen by Defendant

Pierce on June 5, 2018; during that appointment, his asthma and lumbago were stable, he was

prescribed a QVAR inhaler for his asthma, and had various medications renewed. Id. at 36–39.

During a nurse sick call on August 11, 2018, Cox complained of leg and back pain, requested to

return to physical therapy, asserted he had not been seen in chronic care for his asthma, and

stated that his inhaler was different than those he had been prescribed in the past. Id. at 41–42.

Cox was referred to a provider. Id.

On September 21, 2018, Cox was seen by a nurse for a mental health segregation review;

he denied any suicidal ideations. Id. at 43–45. Cox was seen on November 9, 2018, for an

allergic reaction; Defendant Pierce gave orders for a 125 mg solumedrol injection. Id. at 46–47.

On November 13, 2018, Cox complained of blurry vision; a nurse referred him to a provider. Id.

at 48–49. On November 14, 2018, Cox refused to have a physical exam performed. Id. at 50.

Defendant Pierce submitted a consult on November 27, 2018 for a CT scan of Cox’s face, neck,

and left mandible as suggested by the University of Maryland OMFS clinic. Id. at 51.

On the morning of December 1, 2018, Cox was escorted to see a nurse following a

physical altercation. Id. at 54–56. Cox was able to stand and walk independently and showed no

signs or symptoms of respiratory distress. Id. Cox’s face was cleaned of pepper spray, and band

aids were applied to small lacerations on his thumb and pointer fingers. Id. That afternoon Cox

was seen again after a second altercation, during which he was so belligerent and combative that

the pepper spray could not be cleaned from his face and he had to be removed. Id. at 57–59. On

December 21, 2018, Cox saw Dr. Rohrer, a mental health doctor, after he stabbed another inmate

to avoid placement with a cellmate. See id. at 60–70. Wexford ceased to be the medical

contractor for the Maryland Department of Public Safety and Correctional Services on January 1,

2019. ECF No. 24-3 at 5.

C. Procedural History

Cox, proceeding pro se, brought the instant civil action against Defendants on September 16,

2019, alleging claims for deliberate indifference and supervisory liability under 42 U.S.C.

§ 1983.3 ECF No. 1. On July 28, 2020, Defendant Bishop filed a Motion to Dismiss or, in the

Alternative, Motion for Summary Judgment, ECF No. 17, which he supplemented on July 28,

2020, ECF No. 18. Cox responded in opposition on August 13, 2020. ECF No. 20. On October 8,

2020—after filing three Motions for Extension of Time, ECF Nos. 12, 16, 23, two of which have

been granted, ECF Nos. 13, 22, and one of which is still pending, ECF No. 23—the Wexford

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

ECF No. 24. Cox responded in opposition on October 26, 2020, ECF No. 26, and the Wexford

Defendants replied on November 6, 2020, ECF No. 27. Cox has also filed two Motions for

Appointment of Counsel, ECF Nos. 5, 21, one of which has been denied, ECF No. 22, and the

other is still pending, ECF No. 21.

II. DISCUSSION

A. Motion to Appoint Counsel

“A pro se prisoner does not have a general right to counsel in a § 1983 action.” Evans v.

Kuplinski, 713 F. App’x 167, 170 (4th Cir. 2017). A federal district court judge’s power to

appoint counsel under 28 U.S.C. § 1915(e)(1) is discretionary, and an indigent claimant must

present “exceptional circumstances.” Id. at 170; Miller v. Simmons, 814 F.2d 962, 966 (4th Cir.

1987). Exceptional circumstances exist where a “pro se litigant has a colorable claim but lacks

the capacity to present it[.]” See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984),

abrogated on other grounds by Mallard v. U.S. Dist. Ct. for S. Dist. Of Iowa, 490 U.S. 296, 298

(1989) (holding that 28 U.S.C. § 1915 does not authorize compulsory appointment of counsel).

Upon careful consideration of the motions and previous filings by Cox, the Court finds

that he has demonstrated the wherewithal to either articulate the legal and factual basis of his

3 Plaintiff also references the Americans with Disabilities Act (“ADA”) in his Complaint, and the Court assumes for

the purposes of this memorandum opinion that Plaintiff also intended to bring an ADA claim against Defendants.

claims himself or secure meaningful assistance in doing so. Moreover, the issues pending before

the Court are not unduly complicated. Therefore, there are no exceptional circumstances that

would warrant the appointment of an attorney to represent Cox under 28 U.S.C. § 1915(e)(1).

The Court denies Cox’s Motion to Appoint Counsel.

B. Wexford Defendants’ Third Motion for Extension of Time

On August 26, 2020, the Court granted the Wexford Defendants an extension of time to

respond to Cox’s Complaint, extending the deadline to respond through September 28, 2020.

ECF No. 22. On September 25, 2020, the Wexford Defendants filed their Third Motion for

Extension of Time, seeking an additional extension through October 19, 2020. ECF No. 23.

Thereafter, Wexford Defendants filed their Motion to Dismiss or, in the Alternative, for

Summary Judgment on October 8, 2020. ECF No. 24. As such, the Wexford Defendants’ Motion

shall be granted nunc pro tunc to September 25, 2020.

C. Defendants’ Motions to Dismiss or, in the Alternative, for Summary

Judgment

1. Standards of Review

To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555 (“a plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do”)).

The purpose of Rule 12(b)(6) “is to test the sufficiency of a complaint and not to resolve

contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v.

City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and internal quotation marks

omitted). When deciding a motion to dismiss under Rule 12(b)(6), a court “must accept as true

all of the factual allegations contained in the complaint[,]” and must “draw all reasonable

inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon

Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations and internal quotation marks omitted).

The Court need not, however, accept unsupported legal allegations, see Revene v. Charles Cty.

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations,

see Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any

reference to actual events, see United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847

(4th Cir. 1979).

Defendants’ Motions are styled as Motions to Dismiss or, in the Alternative, Motions for

Summary Judgment. If the Court considers materials outside the pleadings, the Court must treat a

motion to dismiss as one for summary judgment. Fed. R. Civ. P. 12(d). When the Court treats a

motion to dismiss as a motion for summary judgment, “[a]ll parties must be given a reasonable

opportunity to present all the material that is pertinent to the motion.” Id. When the moving party

styles its motion as a “Motion to Dismiss or, in the Alternative, for Summary Judgment,” as is

the case here, and attaches additional materials to its motion, the nonmoving party is, of course,

aware that materials outside the pleadings are before the Court, and the Court can treat the

motion as one for summary judgment. See Laughlin v. Metro. Washington Airports Auth., 149

F.3d 253, 260–61 (4th Cir. 1998). Further, the Court is not prohibited from granting a motion for

summary judgment before the commencement of discovery. See Fed. R. Civ. P. 56(a) (stating

that the court “shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact” without distinguishing pre-or post-discovery).

Summary judgment is appropriate if “materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations, stipulations . . . ,

admissions, interrogatory answers, or other materials,” Fed. R. Civ. P. 56(c), show 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

party moving for summary judgment bears the burden of demonstrating that no genuine dispute

exists as to material facts. Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.

1987). If the moving party demonstrates that there is no evidence to support the nonmoving

party’s case, the burden shifts to the nonmoving party to identify specific facts showing that

there is a genuine issue for trial. See Celotex Corp., 477 U.S. at 322–23. A material fact is one

that “might affect the outcome of the suit under the governing law.” Spriggs v. Diamond Auto

Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). A dispute of material fact is only “genuine” if sufficient evidence favoring the

nonmoving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S.

at 248. However, the nonmoving party “cannot create a genuine issue of material fact through

mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213,

214 (4th Cir. 1985) (citation omitted). When ruling on a motion for summary judgment, “[t]he

evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his

favor.” Anderson, 477 U.S. at 255.

While the Court may rule on a motion for summary judgment prior to commencement of

discovery, see, e.g., Demery v. Extebank Deferred Comp. Plan (B), 216 F.3d 283, 286 (2d Cir.

2000), Federal Rule of Civil Procedure 56(d) “mandates that summary judgment be denied when

the nonmovant has not had the opportunity to discover information that is essential to his

opposition.” Pisano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014) (internal citation and quotation

marks omitted). To obtain Rule 56(d) relief, the non-moving party bears the burden of showing

how discovery “could possibly create a genuine issue of material fact sufficient . . . to survive

summary judgment, or otherwise affect the court’s analysis.” Poindexter v. Mercedes-Benz

Credit Corp., 792 F.3d 406, 411 (4th Cir. 2015) (internal citation and quotation marks omitted).

Moreover, where, as here, the plaintiff is proceeding pro se, the Court reads the pleadings

generously. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). At the same time, the Court must

also fulfill its “affirmative obligation . . . to 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) (internal quotation marks omitted).

2. Cox’s § 1983 Claims

The main thrust of Cox’s § 1983 claims is that Defendants “have been deliberately

indifferent in regard to Plaintiff’s serious medical needs[.]” ECF No. 1-1 at 5. “Deliberate

indifference to serious medical needs of prisoners constitutes ‘unnecessary and wanton infliction

of pain . . . proscribed by the Eighth Amendment.’” Powell v. Erwin, 927 F.2d 596 (4th Cir.

1991) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Thus, although Cox asserts—without

explaining—that his Fourteenth Amendment rights have been violated, ECF No. 1-1 at 5, the

Court finds Cox’s claims are properly analyzed under the Eighth Amendment of the United

States Constitution.

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). To state an Eighth Amendment claim for denial of medical care, Cox must demonstrate

that Defendants’ acts or omissions amounted to deliberate indifference to a serious medical need.

See Estelle, 429 U.S. at 106.

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 it was

available. See Farmer v. Brennan, 511 U.S. 825, 834–37 (1994); see also Heyer v. U.S. Bureau

of Prisons, 849 F.3d 202, 209–10 (4th Cir. 2017); King v. Rubenstein, 825 F.3d 206, 218 (4th

Cir. 2016); Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). Objectively, the medical condition

at issue must be serious. See Hudson v. McMillian, 503 U.S. 1, 9 (1992) (explaining that there is

no expectation that prisoners will be provided with unqualified access to health care); Jackson v.

Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). “A ‘serious medical need’ 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.’” Heyer, 849 F.3d at 210 (quoting

Iko, 535 F.3d at 241); see also Scinto v. Stansberry, 841 F.3d 219, 228 (4th Cir. 2016) (noting

that failure to provide diabetic inmate with insulin, where physician acknowledged it was

required, is evidence of objectively serious medical need).

After a serious medical need is established, a successful claim requires proof that the

defendants were subjectively reckless in treating or failing to treat the serious medical condition.

See Farmer, 511 U.S. at 839–40. “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). The subjective

knowledge requirement can be met through direct evidence of actual knowledge or through

circumstantial evidence tending to establish such knowledge, including evidence “that a prison

official knew of a substantial risk from the very fact that the risk was obvious.” Scinto, 841 F.3d

at 226 (quoting Farmer, 511 U.S. at 842).

“Deliberate indifference is a very high standard—a showing of mere negligence will not

meet it.” Grayson v. Peed, 195 F.3d 692, 695–96 (4th Cir. 1999); see also Jackson, 775 F.3d at

178 (“[M]any acts or omissions that would constitute medical malpractice will not rise to the

level of deliberate indifference.”). “[T]he Constitution is designed to deal with deprivations of

rights, not errors in judgment, even though such errors may have unfortunate consequences.”

Grayson, 195 F.3d at 695–96; see also Jackson, 775 F.3d at 178 (describing the applicable

standard as “exacting”). A mere disagreement between an inmate and a physician over the

appropriate level of care does not establish an Eighth Amendment violation “absent exceptional

circumstances.” Scinto, 841 F.3d at 225. Further, the inmate’s 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.” United States

v. Clawson, 650 F.3d 530, 538 (4th Cir. 2011) (citing Bowring v. Godwin, 551 F.2d 44, 47–48

(4th Cir. 1977)).

a. Defendant Bishop

Cox’s Complaint alleges that on numerous occasions he brought various medical supply

issues to Defendant Bishop’s attention via ARPs and letters, including a March 29, 2018 letter

Cox wrote to Defendants Bishop and Beeman regarding receipt of a partial package of medical

supplies. ECF No. 1-1 at ¶¶ 16–17. Cox claims that Defendant Bishop continued to be

deliberately indifferent to Cox’s medical needs despite being informed of the problem. Id. ¶ 18.

Cox also includes Defendant Bishop in general allegations of deliberate indifference to Cox’s

health and safety because he did not provide Cox with a single cell and did not issue the

necessary medical supplies. Id. ¶¶ 26–27.

To the extent Cox sues Defendant Bishop under 42 U.S.C. § 1983 in his official capacity

as the NBCI Warden, Cox’s claim is barred by the Eleventh Amendment. The Eleventh

Amendment provides that “[t]he Judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend.

XI. In effect, the Eleventh Amendment bars suits for damages against a state in federal court

unless the state has waived its sovereign immunity or Congress has abrogated its immunity. See

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100–02 (1984) (“It is clear, of course,

that in the absence of consent a suit in which the State or one of its agencies or departments is

named as the defendant is proscribed by the Eleventh Amendment.”). Moreover, “a suit against a

state official in his or her official capacity is not a suit against the official but rather is a suit

against the official’s office. . . . As such, it is no different from a suit against the State itself.”

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted).

Congress did not abrogate the states’ sovereign immunity when it enacted 42 U.S.C.

§ 1983, Will, 491 U.S. at 66, nor has the State of Maryland waived its sovereign immunity in the

instant federal case. While the State of Maryland has waived its sovereign immunity for certain

types of cases brought in state courts, see Md. Code Ann., State Gov’t § 12-201(a), it has not

waived its immunity, under the Eleventh Amendment, to suit in federal court. Halderman, 465

U.S. at 99 (emphasis in original) (“A State’s constitutional interest in immunity encompasses not

merely whether it may be sued, but where it may be sued.”). As such, Cox’s claim under 42

U.S.C. § 1983 asserted against Defendant Bishop in his official capacity is barred.

To the extent Cox’s § 1983 claim is against Defendant Bishop in his individual capacity,

Cox fails to state an Eighth Amendment claim for deliberate indifference or supervisory liability.

While Cox has sufficiently plead the seriousness of his medical condition, Cox’s bare allegations

that he wrote a single letter to Defendant Bishop and Defendant Bishop failed to use his full

power to address that letter or various other ARPs filed by Cox are insufficient to demonstrate

that Defendant Bishop recklessly disregarded a substantial risk of harm to Cox. See Farmer, 511

U.S. at 839.

Moreover, liability under § 1983 attaches only upon personal participation by a defendant

in the constitutional violation. If a plaintiff has not alleged any personal connection between a

defendant and a denial of their constitutional rights, the claim must fail. See Vinnedge v. Gibbs,

550 F.2d 926, 928 (4th Cir. 1977). It is well established that the doctrine of respondeat superior

does not apply in § 1983 claims. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no

respondeat superior liability under § 1983); see also Trulock v. Freeh, 275 F.3d 391, 402 (4th

Cir. 2001) (no respondeat superior liability in a Bivens suit). Rather, liability of supervisory

officials under § 1983 “is premised on ‘a recognition that supervisory indifference or tacit

authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries

they inflict on those committed to their care.’” Baynard v. Malone, 268 F.3d 228, 235 (4th Cir.

2001) (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984)). Consequently, supervisory

liability under § 1983 must be supported with evidence that: (1) 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 citizens like the plaintiff; (2) the supervisor's

response to the knowledge was so inadequate as to show deliberate indifference to or tacit

authorization of the alleged offensive practices; and (3) there was an affirmative causal link

between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.

See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).

Cox fails to plead any factual details indicating that Defendant Bishop had actual or

constructive knowledge of a subordinate’s behavior that risked constitutional injury to Cox, nor

has Cox alleged that Defendant Bishop interfered with any medical provider’s performance or

tacitly authorized a constitutional violation. The Court thus dismisses Cox’s §1983 claim against

Defendant Bishop for failure to state a claim.

b. The Wexford Defendants

The Wexford Defendants argue they are entitled to summary judgment as the undisputed

facts demonstrate that the Wexford Defendants were not deliberately indifferent to Cox nor did

they ignore Cox’s medical needs. ECF No. 24-3 at 15. As Cox has not filed an affidavit under

Rule 56(d) or proffered any other grounds that summary judgment is unwarranted at this time,

the Court will convert the Wexford Defendants’ Motion to Dismiss or, in the Alternative, Motion

for Summary Judgment into a motion for summary judgment with respect to Cox’s § 1983

claims against the Wexford Defendants.

As discussed above, to demonstrate deliberate indifference to a serious medical need,

Cox must show that he was objectively suffering from a serious medical need and that,

subjectively, the Wexford Defendants were aware of his need for medical attention and failed to

provide it or ensure that it was made available to him. See Farmer, 511 U.S. at 834–37.

During the relevant time period, Defendant Getachew was the Medical Director,

Defendant Beeman was the Assistant Director of Nursing, and Defendant Pierce was a Nurse

Practitioner (NP) at NBCI. ECF No. 24-5 ¶¶ 1, 6. In the Department of Public Safety and

Correctional Services (“DPSCS”), inmates are not assigned permanent medical providers and see

whichever provider is available onsite on a given day. Id. ¶ 5. During the time Defendant

Getachew was Medical Director, he did not see Cox, id., and, as there is nothing in the record

which indicates Defendant Getachew had any subjective awareness of Cox’s condition, he could

not have taken any deliberate action to interfere with Cox’s medical needs. Similarly, Cox did

not see Defendant Beeman during the relevant time period. Although Cox sent Defendant

Beeman a letter concerning orders for his medical supplies, ECF No. 1-1 ¶ 16, there is no

evidence in the record of Defendant Beeman’s subjective intent sufficient for the Court to find

deliberate indifference to Cox’s need for medical supplies. Finally, Cox’s medical records

indicate that Defendant Pierce did see Cox on numerous occasions—except on November 14,

2018, when he refused a medical exam. See ECF No. 24-3 at 50. Further, the evidence presented

indicates that on at least one occasion Defendant Pierce submitted a medical supply order in

response to Cox’s claim that he had not been receiving them. Id. at 32.

Viewing the evidence in the light most favorable to Cox, the Court cannot find that the

medical staff were deliberately indifferent to his needs. Cox was scheduled for sick calls and

provider visits, his condition was continuously evaluated, and his grievance regarding medical

supplies was resolved. None of the medical staff’s decisions amount to an act or omission “for

the very purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at

835. Moreover, an Eighth Amendment claim is also not presented where, as here, Cox alleges

that he was not provided the exact medical treatment that he desired in the form of biohazard

bags and single cell placement.4 As previously indicated, “[d]isagreements between an inmate

and a physician over the inmate’s proper medical care do not state a § 1983 claim unless

4 Defendant Getachew asserts that biohazard bags are only necessary for infectious or radioactive materials and that

Cox’s urinary incontinence does not present a need for single cell placement. ECF No. 24-5 at ¶¶ 10, 11.

exceptional circumstances are alleged.” Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)

(citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970)).

Furthermore, Cox does not demonstrate that any delay in receiving his medical supply

order exposed him to a serious or significant injury. See Brown v. Comm’r of Cecil Cty. Jail, 501

F. Supp. 1124, 1126 (D. Md. 1980) (delay “does not violate the Eighth Amendment where the

seriousness of the injury is not apparent”). Cox claims that on two occasions, August 1, 2017,

and July 16, 2019, he filed ARPs to address delays in receiving his medical supplies. He states

that without his medical supplies he experiences sleep deprivation from using the toilet

throughout the night and experiences some stomach and genitalia discomfort. However, Cox

acknowledges in his first grievance that he had sufficient supplies to last through August 1, 2017.

ECF No. 24-6 at 1; ECF No. 26-1 at 1. Cox was seen by Dr. Ashraf on August 1, 2017, at which

time his medical supplies were ordered to be provided weekly. ECF No. 24-4 at 3. Moreover,

Defendant Getachew attests that a delay in Cox’s urinary incontinence supplies, including

diapers and catheters, would not cause him stomach or genital pain. ECF No. 24-5 ¶ 9. Getachew

further explains that it is feasible to wash and reuse a catheter until supplies were delivered. Id.

Additionally, Cox’s complaint regarding the July 16, 2019 delay in delivery of medical

supplies occurred after the Wexford contract ended and does not support a finding that the

Wexford Defendants were deliberately indifferent to his serious medical need. Regardless, the

July 16, 2019 delay is insufficient to support a deliberate indifference claim because, although

Cox filed an ARP on July 16, 2019 after going twenty-four hours without medical supplies, Cox

provides a receipt he signed that same date acknowledging that his medical supplies were

provided as well as a response to his ARP, which indicates that following Cox’s complaint he

received his supplies and had not suffered any injury. ECF No. 26-4 at 24; ECF No. 26-1 at 7. As

such, the Court grants summary judgment in the Wexford Defendants’ favor.

3. Cox’s Americans with Disabilities Act Claims

Cox also references the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et

seq., in his Complaint. ECF No. 1-1 at 2. To the extent Cox intended to bring an ADA claim,

however, the Court dismisses those claims under Fed. R. Civ. P. 12(b)(6) for failure to state a

claim for which relief can be granted.

a. Defendant Bishop

To the extent Cox intended to bring an ADA claim against Defendant Bishop, that claim

is barred. “Title II of the ADA does not provide for individual capacity suits against state

officials.” Barnes v. Young, 565 F. App’x 272, 273 (4th Cir. 2014) (internal punctuation and

citations omitted). As a result, such a suit may only be brought against a defendant in an official

capacity. As discussed above, see supra § II.C.2.a, under “the Eleventh Amendment, States [and

state officials acting in their official capacity] are immunized from suits brought in federal court,

absent a waiver from the State or a clear, constitutionally permissible Congressional exercise of

its power under the Fourteenth Amendment.” Barnes, 565 F. App’x at 273. The ADA, however,

includes such a waiver where the ADA violations at issue also violate the Fourteenth

Amendment. See United States v. Georgia, 546 U.S. 151, 153 (2006). Because Cox has not

sufficiently alleged that Defendant Bishop violated Cox’s constitutional rights and the Court

dismisses Cox’s § 1983 claim against Defendant Bishop, the Court concludes Cox’s ADA claim

is barred.

b. The Wexford Defendants

To adequately establish a violation of the ADA, Cox must prove: “(1) that he has a

disability; (2) that he is otherwise qualified for the . . . benefit in question; and (3) that he was

excluded from the . . . benefit due to discrimination solely on the basis of disability.” Doe v.

Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264–65 (4th Cir. 1995). However, absent some

improper discrimination due to disability, inadequate health care, negligent health care, or even

medical care amounting to medical malpractice is not the kind of care that constitutes an ADA

violation. See Buchanan v. Maine, 469 F.3d 158, 174–75 (1st Cir. 2006) (holding there was no

ADA claim where “plaintiff’s claim came down to specifics that demonstrated that the claim was

not about discriminatory denial of services, but rather about the adequacy of treatment”);

Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (“[T]he ADA nor the

Rehabilitation Act provide remedies or alleged medical negligence.”); Bryant v. Madigan, 84

F.3d 246, 249 (7th Cir. 1996) (“The ADA does not create a remedy for medical malpractice”). In

the instant case, Cox has only sufficiently alleged that the medical services provided by the

Wexford Defendants were insufficient or delayed, not that services were denied for

discriminatory reasons. Thus, the Court dismisses Cox’s ADA claims against Wexford

Defendants.

III. CONCLUSION

For the foregoing reasons, Cox’s Motion to Appoint Counsel is DENIED; Wexford

Defendants’ Third Motion for Extension of Time is GRANTED nunc pro tunc; Defendant

Bishop is DISMISSED; and the Wexford Defendants’ Motion to Dismiss, or in the Alternative,

Motion for Summary Judgment is GRANTED.

A separate Order follows.

Date: February 26, 2021 __/s/______________________________

GEORGE J. HAZEL

UNITED STATES DISTRICT JUDGE