Poling v. Foxwell

STEVEN POLING, Plaintiff, v. WARDEN RICKY FOXWELL, et al. Defendants.

Case No.: 18-cv-0080-PWG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

January 11, 2021

MEMORANDUM OPINION

In this civil rights suit, Plaintiff Steven Poling alleges that while he was incarcerated in various Maryland Division of Corrections facilities serving a sentence, Defendant Wardens Frank Bishop, Richard Dovey, Walter West, and former Warden Ricky Foxwell; Wexford Health Sources, Inc.; Corizon Health, Inc.; Corizon, LLC; Dr. Sharon Baucom; Dr. Erwin Aldana; Dr. Contah Nimley; and Holly Pierce, CRNP¹ enacted and followed a policy designed to preclude him from continuing to receive previously prescribed medication that successfully reduced his severe nerve pain. Mr. Poling's pain resulted from neurological injuries sustained after surgery to removea brain tumor. Second Am. Compl. ¶ 86-89, ECF No. 159-1 ("Compl."). Mr. Poling seeks relief for this inaction through a 42 U.S.C. § 1983 suit alleging deprivation of necessary and adequate medical care under the Eighth and Fourteenth Amendments;² he seeks compensatory damages for physical and psychological injuries, and pain and suffering; punitive damages; and injunctive relief ensuring adequate treatment for his pain. Compl. 30-32. Defendants³ have moved to dismiss or, alternatively, for summary judgement. Defs.' Mot. Mem., ECF No. 163. The arguments have been briefed, ECF Nos. 163, 170, and a hearing is not necessary. See Loc. R. 105.6 (D. Md. 2018). For the following reasons, including that Mr. Poling has shown he needs additional discovery to oppose a motion for summary judgment, Defendants' motion will be treated only as a motion to dismiss, and denied.

Factual Background⁴

In March of 2012, Mr. Poling underwent surgery to remove a large brain tumor. The tumor could only partially be removed, and it was foreseeable that it would again continue to grow,leading to the return of the seriously debilitating symptoms that necessitated the surgery in the first place. Unfortunately, the tumor did begin to grow, and Plaintiff, left with severe and permanent neurological injury from the first surgery, required pain medication. Compl. ¶¶ 3-5. In an effort to treat that pain, Mr. Poling first received a prescription for two pain medications—Lyrica and Tramadol—beginning in mid-2016. Id. ¶ 55. In March of 2018, during a visit with Dr. Raab at Eastern Correctional Institution ("ECI"), Dr. Raab noted that Mr. Poling responded well to Lyrica and renewed Mr. Poling's prescriptions for Lyrica and Tramadol. Id. ¶ 56.

Mr. Poling was transferred to the Maryland Correctional Training Center ("MCTC") in June of 2018, and then to the North Branch Correctional Institution ("NBCI") in March of 2019. Id. ¶ 4. At each of these facilities, he alleges, prison medical staff refused to provide him with effective medication to treat his pain. Id. At MCTC, Dr. Nimley decided not to renew Mr. Poling's prescriptions for Lyrica and Tramadol, despite evidence in his medical records that he responded well to them and his pleas that she not alter his course of treatment. Id. ¶¶ 58-59. Ceasing Lyrica and Tramadol resulted in Mr. Poling suffering migraine headaches, vomiting, dizziness, and pain sufficient to keep him awake at night, which Mr. Poling documented in a June 21, 2018 sick call slip. Id. ¶ 61. Mr. Poling was informed that he could not receive Lyrica and Tramadol at MCTC—despite a valid prescription for them from Dr. Raab—because of a policy against certain medications. Id. ¶ 63.

By July 2, 2018, correctional medical care providers had not resolved Mr. Poling's pain medication situation and he filed a motion for an emergency injunction with this Court. ECF No. 20. The Court subsequently appointed counsel for Mr. Poling; he then withdrew his motion for injunctive relief. ECF Nos. 29, 35, 40, 42. The Court ordered that Mr. Poling receive Lyrica and Tramadol, and, in granting the motion to withdraw the emergency motions, observed "that Plaintiffcurrently is receiving his medication and has asked to withdraw his request for injunctive relief." Order dated Oct. 19, 2018, ECF No. 42.

That relief was not permanent, Mr. Poling alleges. By October 24, 2018, Mr. Poling was no longer receiving Lyrica; he was again informed, in November 2018, that a Department of Corrections policy, implemented by Wexford and/or the State,⁵ prohibited him from receiving Lyrica and Tramadol. Compl. ¶¶ 69, 72. That month, he also met with Dr. Aldana; Dr. Aldana declined to prescribe Lyrica and did not offer a medical reason for the decision. Id. ¶ 70. Instead, Dr. Aldana prescribed Cymbalta, which Mr. Poling alleges was ineffective in treating his severe pain. Id. ¶ 71. In January 2019, Corizon replaced Wexford as the healthcare provider at MCTC, but Mr. Poling's difficulty receiving effective pain medication persisted. Mr. Poling alleges this course of conduct was consistent with a policy against prescribing Lyrica and Tramadol. Id. ¶ 74. Importantly, when Mr. Poling saw physicians at the University of Maryland Medical Center who were unaffiliated with Corizon, they prescribed Lyrica and Tramadol Id. ¶ 75.

Mr. Poling alleges that Dr. Nimley, Dr. Aldana, and Nurse Practitioner Holly Pierce all were fully aware of Mr. Poling's need for Lyrica and Tramadol, but refused to prescribe them. Id. ¶ 80. They did so in furtherance of the policy adopted by Wexford, Corizon, the Wardens, and Maryland's Correctional Services' Regional Medical Director and Chief Medical Officer. Id.

Standard of Review

Defendants style their dispositive motion as a motion to dismiss under Fed. R. Civ. P.12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56. A motion of this type implicates the Court's discretion under Fed. R. Civ. P. 12(d). See Kensington Vol. Fire Dep't, Inc. v. Montgomery Cty., 788 F. Supp. 2d 431, 436-37 (D. Md. 2011). Generally, the Court may treat a motion to dismiss as a motion for summary judgment pursuant to Rule 12(d) if it gives "[a]ll parties . . . a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). But, if the party opposing a summary judgment motion "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may . . . defer considering the motion or deny it." Fed. R. Civ. P. 56(d).

Here, counsel for Mr. Poling filed with his opposition a Rule 56(d) affidavit in which he identified facts essential to responding to the motion, if treated as one for summary judgment, that he has yet to obtain through discovery. Specifically, counsel for Mr. Poling has outstanding interrogatories and requests for document production that go to the core of the claims in this case. To adequately respond to the summary judgment motion, counsel requires discovery about the Division of Corrections policy cited in the complaint that prevented administration of Lyrica and or Tramadol to inmates. Pl.'s Rule 56(d) Aff. ¶ 5(a), ECF No. 170-3. Counsel also requires "documents related to communication of the Policy from Defendants to personnel responsible for implementing the Policy" (Id. ¶ 5(b)); "documents related to meetings concerning Plaintiff's treatment and care" (Id. ¶ 5(c)); "documents related to Defendants' standards or protocols for medical record-keeping, including documents related to the distribution of medicine and the roles and responsibilities of medical personnel" (Id. ¶ 5(d)), among other information. I agree that this discovery is appropriate in order for Mr. Poling to respond to a summary judgment motion. Therefore, I will consider Defendants' motion only as a motion to dismiss, and will limit my review to those facts appropriate for consideration at this procedural juncture. See Fed. R. Civ. P. 56(d).

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). This rule's purpose "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." Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed. R. Civ. P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and must state "a plausible claim for relief," as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal, 556 U.S. at 678-79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly). "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." Iqbal, 556 U.S. at 663.

When reviewing a motion to dismiss, "[t]he court may consider documents attached to the complaint, as well as documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed." Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see also CACI Int'l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4^th Cir. 2009); Fed. R. Civ. P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."). Moreover, where the allegations in the complaint conflict with an attached written instrument, "the exhibit prevails." Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462,...