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govinfo:USCOURTS-mdd-8_19-cv-01646-0
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
RICHARD LOYA, *
P l a i n t i f f , *
v. Case No.: GJH-19-1646
*
WEXFORD HEALTH
SOURCES, INC., et al., *
Defendants. *
* * * * * * * * * * * * *
MEMORANDUM OPINION
Plaintiff Richard Loya brought this civil action against Defendants Wexford Health
Sources, Inc. (“Wexford”), Michael Smith, RN, Jewaher Abubaker, P.A., and Brenda Taft-Hall,
RNP alleging claims of medical negligence (Count I) and deliberate indifference to a serious
medical need under the Eighth Amendment and the Maryland Declaration of Rights (Count II).
ECF No. 4. Pending before the Court is Defendants’ Motion to Dismiss Count II. ECF No. 8. No
hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Defendants’
Motion to Dismiss is granted.
I. BACKGROUND
1
In June 2016, Plaintiff was in the custody of the Maryland Department of Public Safety
and Correctional Services (“DPSCS”) and incarcerated in the Eastern Correctional Institution
(“ECI”). ECF No. 4 ¶¶ 6, 7. At that time, Defendant Wexford, a corporate health care provider,
had a contract with DPSCS to provide medical care and treatment and utilization management
1 Unless otherwise stated, the background facts are taken from Plaintiff’s Amended Complaint, ECF No. 4, and are
presumed to be true.
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services for all individuals incarcerated in DPSCS correctional facilities, including ECI. ECF No.
4 ¶¶ 3, 8.
On June 19, 2016, while suffering from abdominal pain, Plaintiff was seen and evaluated
by Defendant Smith, an employee of Defendant Wexford. Id. ¶ 9. Plaintiff complained of
abdominal pain that he considered to be a ten on a scale of one to ten. Id. No treatment was
rendered, but Plaintiff contends that Defendant Smith should have ordered blood work,
urinalysis, and a possible CT scan of the abdomen. Id. Less than four hours later, Plaintiff
returned to the ECI infirmary and was seen by Defendant Abubaker, another employee of
Defendant Wexford. Id. ¶ 10. Plaintiff indicated that his abdominal pain had begun at least a
week earlier, he had not had a bowel movement in several days, and he had associated vomiting
with constipation. Id. Defendant Abubaker suggested observing Plaintiff in the dispensary,
obtaining basic STAT labs, and providing Plaintiff with intravenous fluids, magnesium citrate,
and a Fleets enema to help with constipation. Id. Plaintiff continued to suffer from severe
abdominal pain, and constipation, and Plaintiff contends that blood work and imaging studies
should have been done to rule out any acute abdominal pathology, but they were not. Id.
Two days later, on June 21, 2016, Plaintiff returned to the infirmary and was seen by
Defendant Taft-Hall for right lower quadrant pain and constipation. Id. ¶ 11. He was sent to Bon
Secours Hospital for further evaluation and treatment, where he was diagnosed with a ruptured
appendix, free air in the abdomen, and suspected abdominal abscess. Id. ¶¶ 11, 12. He was
rushed to the Operation Room for an emergent exploratory laparotomy. Id. ¶ 12. Plaintiff
subsequently developed residual post-operation abdominal abscesses and continued to complain
of abdominal pain. Id. ¶ 13.
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On June 4, 2019, Plaintiff filed a Complaint in this Court, ECF No. 1, which he amended
on June 7, 2019, ECF No. 4. He alleges a claim of battery in Count I and a claim of deliberate
indifference to a serious medical in violation of the Eighth Amendment and the Maryland
Declaration of Rights in Count II. ECF No. 4. On July 18, 2019, Defendants filed a Motion to
Dismiss Count II. ECF No. 8. Plaintiff filed a response on August 5, 2019, ECF No. 10, and
Defendants filed a reply on August 16, 2019, ECF No. 11.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Hall v. DIRECTV, LLC, 846 F.3d 757, 765
(4th Cir. 2017). However, Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal
of a complaint if it fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo,
No. RDB–12–237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). A motion to dismiss under
12(b)(6) “test[s] the adequacy of a complaint.” Prelich v. Med. Res., Inc., 813 F. Supp. 2d 654,
660 (D. Md. 2011) (citing German v. Fox, 267 F. App’x 231, 233 (4th Cir. 2008)). Motions to
dismiss for failure to state a claim do “not resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.” Prelich, 813 F. Supp. 2d at 660 (citing Edwards v. City
of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). To overcome a Rule 12(b)(6) motion, a
complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim is plausible 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.
In evaluating the sufficiency of the plaintiff’s claims, the Court accepts factual
allegations in the complaint as true and construes them in the light most favorable to the plaintiff.
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See Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm’rs of Davidson Cty.,
407 F.3d 266, 268 (4th Cir. 2005). However, the complaint must contain more than “legal
conclusions, elements of a cause of action, and bare assertions devoid of further factual
enhancement.” Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009). The Court should not grant a motion to dismiss for failure to state a claim unless “it is
clear that no relief could be granted under any set of facts that could be proved consistent with
the allegations.” GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir.
2001) (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249–50 (1989)). Where, as
here, the defendant raises a statute of limitations defense, the defense is an appropriate ground
for granting a motion to dismiss where the expiration of the relevant statute of limitation “is
apparent from the face of the complaint.” Wright v. United States Postal Serv., 305 F. Supp. 2d
562, 563 (D. Md. 2004) (citing Pantry Pride Enters., Inc. v. Glenlo Corp., 729 F.2d 963, 965
(4th Cir. 1984)).
III. DISCUSSION
Defendants move to dismiss Count II of the Amended Complaint, which alleges
deliberate indifference to a serious medical need in violation of the Eighth Amendment and the
Maryland Declaration of Rights. Defendants contend that the Eighth Amendment claim must be
dismissed because Defendants Smith and Abubaker did not have actual knowledge of a serious
medical need, Defendant Taft-Hall immediately sent Plaintiff to the hospital once he presented
with symptoms, and Defendant Wexford cannot be held liable because respondeat superior
liability is not available under § 1983. Defendants contend that the Maryland Declaration of
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Rights claim must be dismissed because Defendants are private individuals or entities and the
Maryland Constitution does not provide any cause of action against them. ECF No. 8 at 3–6.2
In opposition, Plaintiff contends that the individual Defendants can be held liable because
they were negligent in failing to diagnose his medical condition and Defendant Wexford can be
held liable for failing to properly hire and train competent medical providers, failing to have
proper medical facilities equipped for diagnosis testing, and failing to have proper procedures
and policies establishing the proper course of action when presented with Plaintiff’s condition.
ECF No. 10 at 4–8.
A. Eighth Amendment Claim
“A prison official’s deliberate indifference to an inmate’s serious medical needs
constitutes cruel and unusual punishment under the Eighth Amendment.” Jackson v. Lightsey,
775 F.3d 170, 178 (4th Cir. 2014) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). To show
deliberate indifference to a serious medical need, a plaintiff must show that (1) his condition was
serious, meaning it was “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.
(citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)) (internal quotation marks omitted), and
(2) that the defendant “subjectively knows of and disregards an excessive risk to inmate health or
safety,” id. (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)) (internal quotation marks
omitted). “An official acts with deliberate indifference if he had actual knowledge of the
prisoner’s serious medical needs and the related risks, but nevertheless disregarded them.”
DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018). “Neither an ‘inadvertent failure to provide
adequate medical care’ nor ‘negligence in diagnosing or treating a medical condition’ amounts to
2 Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the page numbers generated
by that system.
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deliberate indifference.” Gardner v. United States, 184 F. Supp. 3d 175, 180 (D. Md. 2016)
(quoting Estelle, 429 U.S. at 105–6).
Moreover, the doctrine of respondeat superior does not apply to § 1983 claims. See
Wellington v. Daniels, 717 F.2d 932, 935 (4th Cir. 1983) (citing Polk Cty. v. Dodson, 454 U.S.
312, 325 (1981)). Thus, where, as here, a plaintiff sues an entity, the entity can be “liable only
for its own illegal acts” and not vicariously liable for the conduct of its employees. See Owens v.
Baltimore City State’s Attorneys Office, 767 F.3d 379, 402 (4th Cir. 2014) (emphasis in original);
see also Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982) (finding that the lack of
vicarious liability under § 1983 extends to private corporations acting under color of state law).
Under this standard, the entity will be liable “if it follows a custom, policy, or practice” by which
its employees “violate a plaintiff’s constitutional rights.” See Owens, 767 F.3d at 402.
Here, the Amended Complaint fails to state a claim for deliberate indifference against any
of the four Defendants. With respect to Defendants Smith and Abubaker, the Complaint alleges
that each saw and evaluated Plaintiff on June 19, 2016, he complained of intense abdominal pain
that had been ongoing for a week, he had not had a bowel movement in several days, and he had
associated vomiting. ECF No. 4 ¶¶ 9, 10. It alleges further that they should have ordered blood
work, urinalysis, and a possible CT scan of the abdomen to rule out any acute abdominal
pathology. Id. ¶ 10. There is no allegation, however, that Defendants Smith and Abubaker had
“actual knowledge” that Plaintiff suffered from a condition more severe than the constipation for
which they treated him, and so any subsequent failure to treat him for a serious condition cannot
amount to deliberate indifference under the Eighth Amendment. See DePaola, 884 F.3d at 486.
Indeed, any failure to properly diagnose or treat Plaintiff can amount only to a medical
negligence claim of the type alleged in Count I of the Complaint, not a constitutional violation as
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alleged in Count II. See id.; Gardner, 184 F. Supp. 3d at 180. Accordingly, Plaintiff’s Eighth
Amendment claims against Defendants Smith and Abubaker are dismissed.
With respect to Defendant Taft-Hall, the Complaint alleges only that Plaintiff saw her
once on June 21, 2016, at which point Defendant Taft-Hall sent him to Bon Secours Hospital for
further evaluation and treatment. ECF No. 4 ¶ 11. There is no allegation that Defendant Taft-Hall
knew of a serious medical needed and disregarded it, and Plaintiff makes no argument as to how
sending him to the hospital for further evaluation and treatment could possibly be an act of
deliberate disregard to his medical needs. Accordingly, Plaintiff’s Eighth Amendment claim
against Defendant Taft-Hall is dismissed.
With respect to Defendant Wexford, the Complaint alleges Wexford’s employees,
Defendants Smith, Abubaker, and Taft-Hall, were deliberately indifferent to Plaintiff’s serious
medical needs, and that Defendant Wexford had a duty to properly diagnose and treat Plaintiff’s
appendicitis, failed to timely or properly diagnose and treat his appendicitis, and delayed
Plaintiff’s access to proper medical resources, thereby causing Plaintiff’s appendix to rupture.
ECF No. 4 ¶¶ 20–24. These allegations fail to state an Eighth Amendment claim against
Defendant Wexford because it cannot be vicariously liable for the allegedly unconstitutional
conduct of its employees, and the Complaint contains no allegation that the individual
Defendants’ conduct was taken pursuant to a “custom, policy, or practice” of Defendant
Wexford’s. See Owens, 767 F.3d at 402.
In his opposition, Plaintiff contends that his claim against Defendant Wexford “is not
based on a respondeat superior theory but rather that Wexford should be responsible under the
Eighth Amendment to the Constitution for failing to properly hire and train competent
employees able to perform proper medical tests and procedures to diagnose an appendicitis and
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to promptly and properly treat it, the failure to have proper medical facilities equipped to allow
diagnostic testing to be done at the prison facility where [Plaintiff] was housed or, in the
alternative, to have a proper policy and procedure for transfer of [Plaintiff] to a facility where a
prompt and proper diagnosis could be made, and failing to have proper policies and procedures
establishing when the personnel and facility was not equipped to diagnose and treat a specific
medical problem.” ECF No. 10 at 6. This articulation of Plaintiff’s claims, however, frames
those claims as negligence claims, rather than unconstitutional deliberate indifference claims,
and Plaintiff cites to no authority from which the Court could conclude otherwise.
Moreover, to the extent that Plaintiff has actually raised a failure to train and supervise
claim against Defendant Wexford, rather than a deliberate indifference claim, he has not alleged
the “history of widespread abuse” that is necessary to plead such a claim. See Wellington, 717
F.2d at 936 (finding that failure to train and supervise will only give rise to § 1983 liability
where “there is a history of widespread abuse”). Accordingly, Plaintiff’s Eighth Amendment
claim against Defendant Wexford is dismissed.
B. Maryland Declaration of Rights Claim
Plaintiff raises the same deliberate indifference claim under the Maryland Declaration of
Rights. However, Maryland “Constitutional provisions have the [] narrow focus of protecting
citizens from certain unlawful acts committed by government officials.” DiPino v. Davis, 354
Md. 18, 50–51 (1999) (emphasis added). Thus, although federal law provides a private cause of
action where an individual’s constitutional rights are violated by a party acting under the color of
state law, like Defendants did in this case, Maryland law does not provide that same cause of
action and only protects individuals from violations by government officials. Thus, because
Defendants are not government officials, but rather private actors who are contracted to treat
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individuals incarcerated in DPSCS correctional facilities, Plaintiff has no claim against them
under Maryland law. See Estate of Jones v. NMS Health Care of Hyattsville, LLC, 903 F. Supp.
2d 323, 329 (D. Md. 2012) (finding that defendant, which was a private entity and not a public
official or government agent, could not be liable for a violation of the Maryland Declaration of
Rights).
Plaintiff contends that Widgeon v. E. Shore Hosp. Ctr., 300 Md. 520 (1984) permits him
to sue the private actors in this case for constitutional violations. ECF No. 10 at 7. The Court
disagrees. In Widgeon, the Maryland Court of Appeals held that the plaintiff could sue a state
hospital facility and its employees for violations of Articles 24 and 26 of the Maryland
Declaration of Rights. 300 Md. at 523, 527–38. It did not hold, as Plaintiff seems to contend, that
a private cause of action exists against any party that violates an individual’s rights under
Maryland law. Indeed, unlike Widgeon, where the defendants were a state-run hospital and its
employees, see 300 Md. at 536 (referring to the state hospital and “individual state defendants”),
the defendants in this case are a private corporation and its employees. Thus, no private cause of
action exists against them for any conduct that Plaintiff contends is violative of the Maryland
Declaration of Rights, and so Plaintiff’s claim under the Maryland Declaration of Rights is
dismissed.
C. Medical Negligence Claim
The only remaining claim is the state-law medical negligence claim alleged in Count I of
the Complaint. Although Defendants have not moved to dismiss Count I, the Court has an
independent obligation to ensure that it retains subject-matter jurisdiction now that the only
federal claims have been dismissed. See Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., 369
F.3d 385, 390 (4th Cir. 2004) (“[Q]uestions of subject-matter jurisdiction may be raised at any
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point during the proceedings and may (or, more precisely, must) be raised sua sponte by the
court.”). District courts have diversity jurisdiction over civil actions between citizens of different
states and where the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a)(1).
Importantly, diversity jurisdiction requires complete diversity between all parties. See Banca Del
Sempione v. Provident Bank of Md., 85 F.3d 615 (4th Cir. 1996) (per curiam) (citing Strawbridge
v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)).
Here, it is not clear to the Court that there is complete diversity between Plaintiff, who is
a citizen of Maryland, and each Defendant. Although Defendant Wexford is incorporated in
Florida and has its principal place of business in Pennsylvania, the only allegation as to the
domiciles of the individual Defendants is the Complaint’s statement that “removal is not
predicated solely on diversity, [so] the fact that defendants Smith, Abubaker, and Taft-Hall may
be citizens of Maryland does not preclude this Court from exercising diversity jurisdiction even
if [Plaintiff’s] Count for deliberate indifference is dismissed, either voluntarily or upon motion
by the defendants.” ECF No. 4 ¶ 1 (emphasis in original). It is not clear what Plaintiff means to
say through that statement, but because it is generally the plaintiff’s burden to prove subject-
matter jurisdiction, see United States ex rel. Fadlalla v. DynCorp Int’l LLC, 402 F. Supp. 3d 162,
176 (D. Md. 2019); see also Fed. R. Civ. P. 8(a)(1), and there are insufficient allegations in the
Complaint from which the Court can determine that there is complete diversity, the Court
concludes that it lacks subject-matter jurisdiction over the remaining medical
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negligence claim in Count I. Accordingly, that claim must be dismissed.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss Count II is granted and Count
I is dismissed for lack of subject-matter jurisdiction. A separate Order shall issue.
Date: March 9, 2020 _/s/_________________________
GEORGE J. HAZEL
United States District Judge
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