Case: 1:19-cv-03090-JKB As of: 01/27/2020 01:12 AM EST 1 of 8
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:19−cv−03090−JKB

LEAD

Rogers et al v. Department of Public Safety and Correctional Services et al Assigned to: Chief Judge James K. Bredar Demand: $400,000
Case in other court: Circuit Court for Baltimore City, 24−C−19−004580
Cause: 28:1441 Removal−Americans with Disabilities Act
Plaintiff

Date Filed: 10/23/2019 Jury Demand: Plaintiff Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Karl Rogers

represented by Allen Eisner Honick Whiteford, Taylor & Preston LLP Seven Saint Paul Street Baltimore, MD 21202 410−659−6420 Fax: 410−223−4179 Email: ahonick@wtplaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Daneman Whiteford, Taylor & Preston LLP Seven Saint Paul Street 14th Floor Baltimore, MD 21202 14103478729 Fax: 14102342317 Email: ddaneman@wtplaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erek Lawrence Barron Whiteford Taylor and Preston LLP 7501 Wisconsin Ave Ste 700W Bethesda, MD 20814 13018043613 Fax: 13012156359 Email: ebarron@wtplaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Johns Whiteford Whiteford Taylor and Preston LLP Seven Saint Paul St Ste 1500 Baltimore, MD 21202−1636 14103478705 Fax: 14102342361 Email: twhiteford@wtplaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff James Jardina

represented by Allen Eisner Honick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Daneman

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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erek Lawrence Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Johns Whiteford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Vincent Berry

represented by Allen Eisner Honick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Daneman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erek Lawrence Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Johns Whiteford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Larry Coleman

represented by Allen Eisner Honick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Daneman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erek Lawrence Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Johns Whiteford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff John Fishback

represented by Allen Eisner Honick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Daneman

Case: 1:19-cv-03090-JKB As of: 01/27/2020 01:12 AM EST 3 of 8

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erek Lawrence Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Johns Whiteford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Eric Andre Young

represented by Allen Eisner Honick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Daneman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erek Lawrence Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Johns Whiteford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Consol Plaintiff James J. Jardina

represented by James J. Jardina #418−567 DORSEY RUN CORRECTIONAL FACILITY 2020 Toulson Road Jessup, MD 20794 PRO SE

V.
Defendant
Department of Public Safety and Correctional Services

represented by Lisa O Mara Arnquist Maryland Office of the Attorney General Department of Public Safety 300 E. Joppa Road Suite 1000 Towson, MD 21286 410−339−7568 Fax: 14107644022 Email: lisa.arnquist@maryland.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael O Connor Doyle

Case: 1:19-cv-03090-JKB As of: 01/27/2020 01:12 AM EST 4 of 8

State of Maryland Office of the Attorney General Department of Public Safety and Correctional Services 300 East Joppa Road Suite 1000 Towson, MD 21286 14103397567 Fax: 14107645366 Email: michaelo.doyle@maryland.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Robert L. Green

represented by Lisa O Mara Arnquist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael O Connor Doyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Mr. Wayne Hill

represented by Lisa O Mara Arnquist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael O Connor Doyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Jama Accuff

represented by Lisa O Mara Arnquist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael O Connor Doyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Richard J. Graham, Jr.

represented by Lisa O Mara Arnquist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael O Connor Doyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Carolyn J. Scruggs

represented by Lisa O Mara Arnquist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Casey Campbell
Defendant Stephen T Moyer
Defendant Dayena Corcoran

Michael O Connor Doyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa O Mara Arnquist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael O Connor Doyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa O Mara Arnquist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael O Connor Doyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa O Mara Arnquist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael O Connor Doyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Consol Defendant Denise Gelsinger Asst. Warden (WCI)
Consol Defendant B. Ziler CO II
Consol Defendant Wexford Health Sources, Inc.
Consol Defendant Robustiano Barrera Doctor (WCI)
Consol Defendant Beverly McLaughlin C.R.N.P.

Case: 1:19-cv-03090-JKB As of: 01/27/2020 01:12 AM EST 6 of 8

Date Filed 10/23/2019
10/23/2019
10/23/2019 10/23/2019 10/23/2019 10/23/2019 10/23/2019 10/23/2019
10/25/2019
10/25/2019 10/28/2019 10/30/2019
10/30/2019

# Docket Text
1 NOTICE OF REMOVAL from Circuit Court Baltimore City, case number 24−C−19−004580., filed by James Jardina, Jama Accuff, Stephen T Moyer, Robert L. Green, Carolyn J. Scruggs, Casey Campbell, Wayne Hill, Richard J. Graham, Jr, Department of Public Safety and Correctional Services, Dayena Corcoran. (Attachments: # 1 Exhibit 1, Copy of Complaint filed in State Court, # 2 Exhibit 2 Summons, # 3 Exhibit 3 Summons, # 4 Exhibit 4 Notice of Filing of Notice of Removal, # 5 Civil Cover Sheet)(Arnquist, Lisa) (Entered: 10/23/2019)
2 COMPLAINT against Jama Accuff, Casey Campbell, Dayena Corcoran, Department of Public Safety and Correctional Services, Richard J. Graham, Jr, Robert L. Green, Wayne Hill, James Jardina, Stephen T Moyer, Carolyn J. Scruggs, filed by Vincent Berry, John Fishback, Eric Andre Young, Karl Rogers, Larry Coleman. (Attachments: # 1 Case Information)(bas, Deputy Clerk) (Entered: 10/24/2019)
Jury Trial Demand by Vincent Berry, Larry Coleman, John Fishback, Karl Rogers, Eric Andre Young(bas, Deputy Clerk) (Entered: 10/24/2019)
3 Summons Issued 21 days as to Jama Accuff, Casey Campbell, Department of Public Safety and Correctional Services, Richard J. Graham, Jr, Robert L. Green, Wayne Hill, Stephen T Moyer, Carolyn J. Scruggs.(bas, Deputy Clerk) (Entered: 10/24/2019)
4 NOTICE of Filing of Notice of Removal by Jama Accuff, Casey Campbell, Dayena Corcoran, Department of Public Safety and Correctional Services, Richard J. Graham, Jr, Robert L. Green, Wayne Hill, Stephen T Moyer, Carolyn J. Scruggs (bas, Deputy Clerk) (Entered: 10/24/2019)
THE ABOVE DOCUMENTS (2−4) ARE COPIES OF ORIGINAL PAPERS FILED IN THE CIRCUIT COURT FOR BALTIMORE CITY. (bas, Deputy Clerk) (Entered: 10/24/2019)
5 Standing Order Concerning Removal. Signed by Judge Ellen L. Hollander on 10/23/2019. (bas, Deputy Clerk) (Entered: 10/24/2019)
The case of Rogers et al v. Jardina et al, has been opened in the District of Maryland. The case number is ELH 19−CV−3090. PLEASE NOTE: You must pay the case filing fee within 48 hours. To pay online, select the event Civil Case Filing Fee which is found under Civil Events −−> Other Filings −−> Other Documents. Otherwise, forward a check made payable to Clerk, U.S. District Court and note the assigned case number on the check or cover letter. (bas, Deputy Clerk) (Entered: 10/24/2019)
6 NOTICE by Vincent Berry, Larry Coleman, John Fishback, James Jardina, Karl Rogers, Eric Andre Young re 2 Complaint, Requesting Reissuance of Summonses (Attachments: # 1 Summons MD DPSCS, # 2 Summons Robert L. Green, # 3 Summons O. Wayne Hill, # 4 Summons Jama Acuff, # 5 Summons Richard J. Graham, Jr., # 6 Summons Carolyn J. Scruggs, # 7 Summons Casey Campbell)(Honick, Allen) (Entered: 10/25/2019)
Filing fee: $ 400.00, receipt number 1463711882 (bas, Deputy Clerk) (Entered: 10/28/2019)
7 Summons Issued 21 days as to Jama Accuff, Casey Campbell, Department of Public Safety and Correctional Services, Richard J. Graham, Jr, Robert L. Green, Wayne Hill, Carolyn J. Scruggs.(bas, Deputy Clerk) (Entered: 10/28/2019)
8 Consent MOTION for Extension of Time to Respond to Complaint by Jama Accuff, Casey Campbell, Dayena Corcoran, Department of Public Safety and Correctional Services, Richard J. Graham, Jr, Robert L. Green, Wayne Hill, Stephen T Moyer, Carolyn J. Scruggs (Attachments: # 1 Text of Proposed Order)(Doyle, Michael) (Entered: 10/30/2019)
9 ORDER Granting 8 Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 10/30/2019. (c/m 10/31/2019 bas, Deputy Clerk) (Entered: 10/31/2019)

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10/31/2019

10 Local Rule 103.3 Disclosure Statement by Jama Accuff, Casey Campbell, Dayena Corcoran, Department of Public Safety and Correctional Services, Richard J. Graham, Jr, Robert L. Green, Wayne Hill, Stephen T Moyer, Carolyn J. Scruggs (Arnquist, Lisa) (Entered: 10/31/2019)

11/01/2019

11 RESPONSE re 5 Standing Order Concerning Removal filed by Jama Accuff, Casey Campbell, Dayena Corcoran, Department of Public Safety and Correctional Services, Richard J. Graham, Jr, Robert L. Green, Wayne Hill, Stephen T Moyer, Carolyn J. Scruggs.(Arnquist, Lisa) (Entered: 11/01/2019)

11/13/2019

12 −[FILED IN ERROR]− AFFIDAVIT re 2 Complaint, 7 Summons Issued of Service Via Certified Mail by Vincent Berry, Larry Coleman, John Fishback, James Jardina, Karl Rogers, Eric Andre Young (Attachments: # 1 Exhibit Stephen T. Moyer, # 2 Exhibit Dayena Corcoran, # 3 Exhibit DPSCS & State Employees)(Honick, Allen) Modified on 11/19/2019 (bas, Deputy Clerk). (Entered: 11/13/2019)

11/19/2019

13 QC NOTICE: 12 Affidavit, filed by James Jardina, Karl Rogers, Eric Andre Young, Larry Coleman, Vincent Berry, John Fishback was filed incorrectly. **Please re−file documents by selecting Service of Process > Summons Returned Executed. It has been noted as FILED IN ERROR, and he document link has been disabled. (bas, Deputy Clerk) (Entered: 11/19/2019)

11/19/2019

14 SUMMONS Returned Executed by James Jardina, Vincent Berry, John Fishback, Eric Andre Young, Karl Rogers, Larry Coleman. All Defendants. (Attachments: # 1 Exhibit Stephen T. Moyer, # 2 Exhibit Dayena Corcoran, # 3 Exhibit DPSCS & State Employees)(Honick, Allen) (Entered: 11/19/2019)

12/02/2019

15 Consent MOTION for Extension of Time to Respond to Complaint by Jama Accuff, Casey Campbell, Dayena Corcoran, Department of Public Safety and Correctional Services, Richard J. Graham, Jr, Robert L. Green, Wayne Hill, Stephen T Moyer, Carolyn J. Scruggs (Attachments: # 1 Text of Proposed Order)(Doyle, Michael) (Entered: 12/02/2019)

12/02/2019

16 ORDER Granting 15 Second Consent Motion for Extension of Time to Respond. Signed by Judge Ellen L. Hollander on 12/2/2019. (bas, Deputy Clerk) (Entered: 12/02/2019)

12/23/2019

17 Consent MOTION for Extension of Time to File Response/Reply to Compaint by Jama Accuff, Casey Campbell, Dayena Corcoran, Department of Public Safety and Correctional Services, Richard J. Graham, Jr, Robert L. Green, Wayne Hill, Stephen T Moyer, Carolyn J. Scruggs. (Attachments: # 1 Text of Proposed Order)(Arnquist, Lisa) (Entered: 12/23/2019)

12/23/2019

18 ORDER Granting 17 Motion for Extension of Time to File Response/Reply to Complaint. Signed by Judge Ellen L. Hollander on 12/23/2019. (bas, Deputy Clerk) (Entered: 12/26/2019)

12/30/2019

19 MOTION to Dismiss for Failure to State a Claim by Jama Accuff, Casey Campbell, Dayena Corcoran, Department of Public Safety and Correctional Services, Richard J. Graham, Jr, Robert L. Green, Wayne Hill, Stephen T Moyer, Carolyn J. Scruggs (Attachments: # 1 Memorandum in Support)(Doyle, Michael) (Entered: 12/30/2019)

01/08/2020

20 Consent MOTION for Extension of Time to File Response/Reply as to 19 MOTION to Dismiss for Failure to State a Claim by Vincent Berry, Larry Coleman, John Fishback, James Jardina, Karl Rogers, Eric Andre Young (Attachments: # 1 Text of Proposed Order Order)(Honick, Allen) (Entered: 01/08/2020)

01/08/2020 21 ORDER Granting 20 Motion for Extension of Time to File Response/Reply. Signed by Judge Ellen L. Hollander on 1/8/2020. (bas, Deputy Clerk) (Entered: 01/09/2020)

01/14/2020 22 ORDER Transferring Case. Signed by Judge Ellen L. Hollander on 1/14/2020. (bas, Deputy Clerk) (Entered: 01/14/2020)

01/15/2020

23 ORDER granting Motion to Consolidate Cases JKB−16−1255 and ELH−19−3090; directing all filings be made under the case of Rogers, et al. v. Maryland Department of Public Safety and Correctional Services et al (JKB−19−3090) which is the Lead Case. Signed by Chief Judge James K. Bredar on 1/15/2020. (dass, Deputy Clerk) (Entered: 01/16/2020)

Case: 1:19-cv-03090-JKB As of: 01/27/2020 01:12 AM EST 8 of 8

01/16/2020

Case reassigned to Chief Judge James K. Bredar. Judge Ellen L. Hollander no longer assigned to the case. (cags, Deputy Clerk) (Entered: 01/16/2020)

01/16/2020

24 PAPERLESS ORDER. A STATUS/SCHEDULING TELEPHONE CONFERENCE to discuss upcoming deadlines and the schedule going forward in the case is set in for 1/30/20 at 10:00 a.m. Counsel for the Plaintiff is directed to arrange for and initiate the conference call to Chambers. Signed by Chief Judge James K. Bredar on 1/16/2020. (vdcs, Chambers) (Entered: 01/16/2020)

01/16/2020

25 AMENDED PAPERLESS ORDER. A STATUS/SCHEDULING TELEPHONE CONFERENCE to discuss upcoming deadlines and the schedule going forward in the case is set in for 2/4/20 at 10:00 a.m. Counsel for the Plaintiff is directed to arrange for and initiate the conference call to Chambers.. Signed by Chief Judge James K. Bredar on 1/16/2020. (vdcs, Chambers) (Entered: 01/16/2020)

01/21/2020 26 MEMORANDUM. Signed by Chief Judge James K. Bredar on 1/20/2020. (bas, Deputy Clerk) (Entered: 01/21/2020)

01/21/2020 27 Correspondence re: Joint Status Report (Lane Weber, Stephanie) (Entered: 01/21/2020)

01/23/2020

28 MARGINAL ORDER Approving 27 Correspondence re: Joint Status Report. Signed by Chief Judge James K. Bredar on 1/21/2020. (c/m 1/23/20202 bas, Deputy Clerk) . (Entered: 01/23/2020)

 
 Case 1:19-cv-03090-JKB Document 2 Filed 10/23/19 Page 1 of 50

KARL ROGERS 125 MARINE CIRCLE OCEAN CITY, MARYLAND 21842

*

*

IN THE

CJVlL DiVISiON

and

*

CIRCUIT COURT FOR

JAMES JARDINA

*

HARBOR HOSPITAL

3001 S. HANOVER STREET

*

BALTIMORE, MARYLAND 21225

*

and

*

VINCENT BERRY

DORSEY RUN CORRECTIONAL FACILITY

2020 TOULSON ROAD

JESSUP, MARYLAND 20794

*

BALTIMORE CITY
CASE NO.
rJif· fJ.Jj·D6!-fJ''if 6

and

*

LARRY COLEMAN

*

DORSEY RUN CORRECTIONAL FACILITY

2020 TOULSON ROAD

*

JESSUP, MARYLAND 20794

*

and

*

JOHN FISHBACK

DORSEY RUN CORRECTIONAL FACILITY

2020 TOULSON ROAD

*

JESSUP, MARYLAND 20794

*

and

*

ERIC ANDRE YOUNG

DORSEY RUN CORRECTIONAL FACILITY

2020 TOULSON ROAD

*

JESSUP, MARYLAND 20794

*

Plaintiffs

*

v.

*

MARYLAND DEPARTMENT OF PUBLIC

SAFETY AND CORRECTIONAL SERVICES

TOTAL

. ·~*i;5~~5.=s~

UD
I>~

H~~c~iP i #.2Gi 9GUlrl·f~,&t_, Cash h?.r·; C[1 CGBCO:E.1 0Gi3Gi •i q 'i2; USPifi

ROBERT L. GREEN

*

0. WAYNE HILL

JAMAACUFF

*
[1]

I

Case 1:19-cv-03090-JKB Document 2 Filed 10/23/19 Page 2 of 50
' ' !

RICHARD J. GRAHAM

*

CAROLYN J. SCRUGGS

CASEY CAMPBELL

CIVIL DiVISION

SERVE ON:

*·

Michael 0. Doyle, Assistant Attorney General

Deputy Counsel

*

Office of the Attorney General
Department ofPublic Safety and *

Correctional Services

200 Saint Paul Place

*

Baltimore, Maryland 21202

*

and

*

STEPHEN T. MOYER

126 FIELDSTONE DRIVE

*

VENICE, FLORIDA 34292

*

and

*

DAYENA CORCORAN

4000 CYPRESS GROVE WAY, APT. 507 *

POMPANO BEACH, FLORIDA 33069

*

Defendants

*

*

*

*

*

*

*

*

*

*

*

*

*

*

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiffs Karl Rogers, James Jardina, Larry Coleman, Vincent Berry, John Fishback, and

Eric Andre Young ("Plaintiffs"), by their undersigned counsel, hereby file this Complaint and

Demand for Jury Trial against Defendants Maryland Department of Public Safety and Correctional

Services, Robert L. Green, Stephen T. Moyer, 0. Wayne Hill, Dayena Corcoran, Jaina Acuff, .

Casey Campbell, Richard J. Graham, Jr., and Carolyn J. Scruggs (collectively the "Defendants"),

and state in support:

[2]

Case 1:19-cv-03090-JKB Document 2 Filed 10/23/19 Page 3 of 50
INTRODUCTION The Maryland Department of Public Safety and Correctional Services ("DPSCS") consistently violates the laws protecting prisoners with disabilities arid perceived disabilities. These ongoing violations exclude Maryland prisoners from numerous DPSCS programs, services, and activities, and cause them to suffer the humiliation, indignity, inhumanity, and difficulties that accompany such exclusion. Plaintiffs bring this action to redress DPSCS's widespread pattern and practice of statutory and constitutional violations against prisoners with disabilities.
PRELIMINARY STATEMENT I. . Plaintiffs bring this action to challenge the acts and omissions of DPSCS and its agents and employees, for: (1) discriminating against them because they are disabled and/or because of a perceived disability; (2) failing to properly make available and administer the administrative grievance process; (3) subjecting Plaintiffs to conditions of confinement that have caused, and continue to create a substantial risk of harm; and (4) depriving Plaintiffs of the right to equally participate in and benefit from DPSCS programs, services, and activities. 2. The Eighth and Fourteenth Amendments to the United States Constitution along with the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq., and Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794, require Defendants to (1) provide the necessary and reasonable modifications and ancillary aids and services that would allow Plaintiffs to freely and safely access facilities, and (2) ensure that qualified prisoners with disabilities have the right to equally participate in and benefit from prison programs, services, and activities.
BACKGROUND 3. Plaintiffs Karl Rogers, DOC ID #469800, James Jardina, DOC ID #418567, Larry Coleman, DOC ID #451342, Vincent Berry, DOC ID #,455176 (hereinafter the "Wheelchair Plaintiffs"), are wheelchair-bound prisoners currently or formerly residing at the Dorsey Run
[3)

Case 1:19-cv-03090-JKB Document 2 Filed 10/23/19 Page 4 of 50
Correctional Facility ("DRCF")-a DPSCS prison facility-which is located at 2020 Toulson Road, Jessup, Maryland 20794.
4. Plaintiffs John Fishback, DOC ID #304325 and Eric Andre Young, DOC ID #469775 (hereinafter the "Non-Wheelchair Plaintiffs"), are prisoners with disabilities or perceived disabilities who are currently housed at DRCF.
5. DPSCS places prisoners at DRCF when thos.e prisoners have medical conditions that require more intensive care than can be provided in a general population setting at other DPSCS institutions. However, Defendants deny (or denied) Plaintiffs access to vital safety equipment and features necessary for Plaintiffs to safely reside in DRCF and take advantage of DRCF's programs, services, and activities.
6. Defendants have harmed and continue to harm Plaintiffs by failing to make the necessary and reasonable accommodations and modifications, and by failing to provide ancillary aids and services that would allow Plaintiffs to freely and safely access DPSCS facilities, services, and programs For example, the follov.ring is a nan-exbmJsfive list of what the Defendants do not provide to the Plaintiffs: (1) the ADA-required accommodations in DRCF's bathroom and shower facilities, requiring Plaintiffs to hop in and out of the showers on wet floors, or teeter precariously on plastic chairs in the showers because there are no handicap benches or shower hoses; (2) ADArequired accommodations in DRCF's housing units, including bed rails, grab bars, and accessible shelving and storage; (3) ADA-required furniture and other equipment suitable to accommodate Plaintiffs' disabilities; (4) ADA-required accommodations for wheelchair-bound individuals to allow Plaintiffs to access the entire facility, such as properly graded ramps, sidewalks, and passthrough areas in hallways; (5) access to work release programs solely because of Plaintiffs' disabilities; (6) ADA-compliant housing accommodations with proper disabled prisoner-to-bed · ratios; and (7) access to the same empl~yment opportunities within DPSCS, resulting in Plaintiffs
[4]

Case 1:19-cv-03090-JKB Document 2 Filed 10/23/19 Page 5 of 50
being unable to earn diminution of confinement credits in the same manner as similarly situated non-disabled individuals incarcerated at DRCF and within DPSCS. As a result, Plaintiffs are exposed to a substantial risk of injury on a .daily basis. Indeed, Plaintiffs have sustained personal injuries because of Defendants failures to provide necessary and reasonable accommodations. Further, these ongoing failures embarrass, dehumanize, and degrade Plaintiffs.
7. Defendants have also harmed and continue to harm Plaintiffs by not affording them an opportunity to equal enjoyment of the benefits and opportunities available to the non-disabled prisoner population. For example, Plaintiffs are unable to participate in valuable activities, like the work release program. Consequently, Plaintiffs are unable to earn wages and gain valuable job experience, both of which are available to non-disabled inmates. Plaintiffs also risk violating the tenns of their parole because they are unable to satisfy the work release conditions therein. Moreover, Defendants discriminate against Plaintiffs because of Plaintiffs' disabilities in the administration of various work programs, job training, and other ancillary benefits that allow nondisabled prisoners to receive vocational training, earn wages, andobtain credits towards their release. As a result, Plaintiffs are at a substantial financial and educational disadvantage, both during their respective terms of confinement and upon release,. when compared to their nondisabled counterparts.
8. Defendants have denied Plaintiffs their due process rights. Defendants have failed to establish minimum mandatory standards for administrative complaints and grievances as required by Md. Code, Corr. Servs. § 8-103, and Md. Code Regs. 12.14.04.05, violating Plaintiffs' Fourteenth Amendment rights to access the courts.
9. Plaintiffs seek injunctive relief, compensatory and punitive damages, attorneys' fees and costs, and any other available relief.
[5]

Case 1:19-cv-03090-JKB Document 2 Filed 10/23/19 Page 6 of 50
PARTIES 10. Plaintiff Karl Rogers, formerly #469800, was a prisoner committed to the custody of the DPSCS. Mr. Rogers, a single-leg amputee, is a wheelchair-bound individual and is a "qualified individual with a disability" as defined in 42 U.S.C. § 12131(2). Mr. Rogers was released from DPSCS custody in May2019. During his incarceration with DPSCS, Mr. Rogers was housed at the Maryland Reception, Diagnostic and Classification Center ("MRDCC") in Baltimore, and at DRCF. Mr. Rogers currently resides in Ocean City, Maryland. 11. PlaintiffJames Jardina, formerly #418567, was a prisoner committed to the custody ofthe DPSCS. Mr. Jardina is a wheelchair-bound individual and is a "qualified individual with a disability" as defined in 42 U.S.C. § 12131(2). Mr. Jardina was mysteriously released from DPSCS custody in June 2019, after DPSCS conceded that it could not accommodate Mr. Jardina's ongoing and serious medical needs. During his incarceration with DPSCS, Mr. Jardina was housed at several DPSCS facilities, including the Western Correctional Institution ("WCI") and DRCF. Mr Iardina currently resides in Baltimore, Maryland. 12. Plaintiff Larry Coleman, #451342, at all times relevant to this action, was and is a prisoner committed to the custody of the DPSCS. Mr. Coleman is a wheelchair-bound individual and is a "qualified individual with a disability" as defined in 42 U.S.C. § 12131(2). During his incarceration with DPSCS, Mr. Coleman has been housed at several DPSCS facilities including . WCI and DRCF. Mr. Coleman cunently resides at DRCF.
13. Plaintiff Vincent Beny, #455176, at all times relevant to this action, was and is a prisoner committed to the custody of the DPSCS and assigned to DRCF. Mr. Beny is a wheelchair-bound individual and is a "qualified individual with a disability" as defined in 42 U.S.C. § 12131(2). Mr. Beny currently resides at DRCF.
[6]

Case 1:19-cv-03090-JKB Document 2 Filed 10/23/19 Page 7 of 50
14. Plaintiff John Fishback, #304325, at all times relevant to this action, was and is a prisoner committed to the custody oftheDPSCS. Mr. Fishback suffers from bipolar disorder and chronic pain and is a "qualified individual with a disability" as defined in 42 U.S.C. § 12131(2). During his incarceration with DPSCS, Mr. Fishback has been housed at several DPSCS facilities including WCI and DRCF. Mr. Fishback currently resides at DRCF.
15. Plaintiff Eric Andre Young, #469775, at all times relevant to this action, was and is a prisoner committed to the custody of the DPSCS. Mr. Young was diagnosed with asthma as a child and is a "qualified individual with a disability" as defined in 42 U.S.C. § 12131(2). Mr. Young currently resides at DRCF.
16. Defendant Department of Public Safety and Correctional Services ("DPSCS") is established as a principal department of the State of Maryland pursuant to Maryland Code, Correctional Services ("CSA") § 2-101. The Maryland Division of Corrections ("DOC") is a unit of the Department, CSA § 2-201, organized to incarcerate certain criminal defendants sentenced by Maryland courts. The DOC is tasked with operating and overseeing Maryland's twenty-four (24) state prison facilities, including DRCF, MRDCC, and WCI.
17. Defendant Robert L. Green is the current Secretary ofDPSCS. The Secretary of DPSCS is the primary administrator of the Department and is responsible to the Governor. CSA § 2-102. Defendant Green is aware of DPSCS's policies and practices regarding disabled prisoners. Mr. Green is also knowledgeable of the requirements of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated within DPSCS. Defendant Green is named in this action in his individual and official capacities.
18. Defendant Stephen T. Moyer is the former Secretary of DPSCS, holding that position from 2015 through 2019. As Secretary, Mr. Moyer was aware ofDPSCS's policies and
[7]

Case 1:19-cv-03090-JKB Document 2 Filed 10/23/19 Page 8 of 50
practices regarding disabled prisoners. Mr. Moyer is also knowledgeable of the requirements of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated within DPSCS. Defendant Moyer is named in this action in his individual and official capacities.
19. Defendant 0. Wayne Hill is the Acting Commissioner of Corrections at DOC (the "Commissioner"). The Commissioner is responsible for the administration of DPSCS and is responsible to the Secretary of DPSCS arid the Governor for the supervision of prisoners and conectional staff. CSA §§ 3-203 et seq. The Commissioner's responsibilities also include responding to appeals of complaints and grievances brought by individuals in the Department's custody. As the Commissioner, Mr. Hill is aware of DPSCS and DOC policies and practices regarding prisoners, including policies and practices regarding wheelchair~bound prisoners and those with otherdisabilities. The Commissioner is also aware of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated at DRCF. Defendant Hill is named in this action in his individual and official capacities.
20. Defendant Dayena Corcoran is the former Commissioner of Conections at DOC. As Commission, Ms. Corcoran responsibilities also include responding to appeals of complaints . and grievances brought by individuals in the Department's custody. As Commissioner, Ms. Corcoran was aware of DPSCS and DOC policies and practices regarding prisoners, including policies and practices· regarding wheelchair-bound prisoners and those with other disabilities or perceived disabilities. As Commissioner, Ms. Corcoran was also aware of federal law, including .the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated at DRCF. Defendant Corcoran is named in this action inher individual and official capacities.
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21. Defendant Jama Acuff is the warden of DRCF and is responsible for the governance, discipline, and policies of that institution. CSA § 3-211. In addition, Warden Acuff is responsible for the enforcement ofDPSCS regulations and directives. Warden Acuff is the legal custodian of all individuals incarcerated at DRCF and is responsible for their safe, secure, and humane treatment. Warden Acuff is aware ofDPSCS's policies and practices regarding prisoners, including policies and practices regarding wheelchair-bound prisoners and those with other disabilities or perceived disabilities. Warden Acuff.is also aware of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated at DRCF. Warden Acuff is aware of the complaints brought by wheelchair-bound prisoners and prisoners with other disabilities at DRCF regarding failure to properly establish and or follow proper administrative grievance procedures, as well as Plaintiffs' complaints regarding safety concerns at DRCF's inadequate facilities and inaccessible programming. Defendant Acuff is named in this action in her individual
22. Defendant Casey Campbell is the former warden at DRCF. In that role, Mr.
Campbell was responsible for the governance, discipline, and policies of that institution. CSA § 3-211. In addition, Mr. Campbell was responsible for the enforcement ofDPSCS regulations and directives. As warden, Mr. Campbell was the legal custodian of all individuals incarcerated at DRCF and was responsible for their safe, secure, and humane treatment. As warden, Mr. Campbell was aware ofDPSCS's policies and practices regarding prisoners, including policies and practices regarding wheelchair-bound prisoners and those with other disabilities or perceived disabilities. As warden, Mr. Campbell was also aware of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated at DRCF. As warden, Mr. Campbell was aware of the
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complaints brought by wheelchair-bound prisoners and prisoners with other disabilities at DRCF regarding failure to properly establish and or follow proper administrative grievance procedures, as well as Plaintiffs' complaints regarding safety concerns at DRCF's inadequate facilities and inaccessible programming. Defendant Campbell is named in this action in his individual and official capacities.
23. Defendant Richard J. Graham, Jr. is the warden at WCI and is responsible for the governance, discipline, and policies of that institution. CSA § 3-211. In addition, Warden Graham is responsible for the enforcement of DPSCS regulations and directives. Warden Graham is the legal custodian of all individuals incarcerated at WCI and is responsible for their safe, secure, and humane treatment. Warden Graham is aware of DPSCS' s policies and practices regarding prisoners, including policies and practices regarding wheelchair-bound prisoners and those with other disabilities or perceived disabilities. Warden Graham is also aware offederallaw, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals inc~rcerated at WCI Warden Graham is aware of the complaints brought by wheelchair-bound prisoners and prisoners with other disabilities at WCI regarding failure to properly establish and or follow proper administrative grievance procedures, as well as Plaintiffs' complaints regarding safety concerns at WCI's inadequate facilities and inaccessible programming. Defendant Graham is named in this action in his · individual and official capacities.
24. Defendant Carolyn J. Scruggs is the warden of MRDCC and is responsible for the governance, discipline, and policies of that institution. CSA § 3-211. In addition, Warden Scruggs is responsible for the enforcement of DPSCS regulations and directives. Warden Scruggs is the legal custodian of all individuals incarcerated at MRDCC and is responsible for their safe, secure, and humane treatment. Warden Scruggs is aware of DPSCS's policies and practices regarding
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prisoners, including policies and practices regarding wheelchair-bound prisoners and those with other disabilities or perceived disabilities. Warden Scruggs is also aware of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated at MRDCC. Warden Scruggs is aware of the complaints brought by wheelchair-bound prisoners and prisoners with other disabilities at MRDCC regarding failure to properly establish and or follow proper administrative grievance procedures, as well as Plaintiffs' complaints regarding safety concerns at MRDCC's inadequate facilities and inaccessible programming. Defendant Scruggs is named in this action in her individual and official capacities.
JURISDICTION AND VENUE 25. This Court has jurisdiction over the above-captioned Defendants, pursuant to Maryland Code, Courts & Judicial Proceedings ("CJP"), §§ 6-102 and 6-103, as through their acts, Defendants caused the tmiious and constitutional injuries herein described in the State of Mar)4and, and because they transact business in the State of Maryland, contract to· perform . services in the State of Maryland, and through their acts and the acts of their agents, caused the tmiious and constitutional injuries herein described. 26. Venue is proper in Baltimore City, pursuant to CJP § 6-201 as Defendant DPSCS carries on regular business therein, and because part of the harms alleged herein arose in Baltimore City. 27. This Court has subject matter jurisdiction over this matter, pursuant to CJP §§ 1504 and 4-401, as the amount in controversy exceeds Thirty Thousand Dollars ($30,000.00).
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STATEMENT OF FACTS DPSCS' Systemic Violations of Laws Protecting People With Disabilities 28. DPSCS systematically violates the laws protecting persons with disabilities and perceived disabilities in its custody. This includes but is not limited to prisoners who are blind, deaf, hard of hearing, and have mobility impaitments. This also extends to prisoners who DPSCS perceives as disabled, but are not. DPSCS has violated, and continues to violate, the ADA, Rehabilitation Act, Eighth Amendment, Due· Process Clause, and the Maryland Declaration of Rights in the following ways. This is not an exhaustive list: a. Failure to maintain wheelchair accessible facilities; b. Failure to provide and maintain wheelchairs and assistants; c. Failure to allow and maintain prosthetic devices; d. Exclusion from jobs and programs; e. Engaging in retaliation and interference against prisoners who are disabled and/or who file grievances about noncompliant DPSCS activities; f. Refusing to answer meritorious grievances and complaints; g. Failure to train personnel and private contractors on the requirements of federal disability laws; h. Failure to properly assign plisoners to jobs, programs, and other services based on
their commitment status and security level; and 1. Failure to provide adequate medical treatment and devices to prisoners with
disabilities; J. Failure to provide addiction treatment counseling; k. Failure to provide medication withdrawal counseling or programming;
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I. Failure to engage competent medical service providers to oversee and administer the healthcare needs of prisoners committed to the custody ofDPSCS;
m. Failure to provide ADA-compliant housing accommodations with proper prisoner-tobed ratios; and
n.. Failure to provide safe and habitable living environments for disabled individuals by overcrowding housing facilities, improperly ventilating and cooling its housing units, and by failing to keep the housing units free from hazards that interfere with disabled prisoners' abilities to safely move about the institution.
29. Plaintiffs are each qualified individuals with a disability, in that they, with or without reasonable modifications to rules, policies, or practices; the removal of architectural, . communication, or transportation barriers; or the provision of auxiliary aids and services; meet the essential eligibility requirements for the receipt of services of the participation in programs or activities provided by DPSCS.
30 DPSCS knows that the Plaintiffs are qualified individuals with disabilities. 31. All Plaintiffs have, by reason of their disability, been excluded from participation or have been denied the benefits ofDPSCS services, programs, or activities, or have been subjected to discrimination by DPSCS. 32. The events described herein are not isolated incidents; they are but some examples ofDPSCS's failure to comply with the laws protecting individuals with disabilities. 33. These violations will continue unless enjoined by this Court.
Prisoners With Mobility Impairments Karl Rogers 34. Mr. Rogers was incarcerated in the DPSCS between2018 and 2019, and spent time at both MRDCC and DRCF. Mr. Rogers is a single-leg amputee and requires a prosthetic or other
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assistive devices to ambulate. This physical impairment substantially limits one or more major life activities, including but not limited to walking. Upon his commitment to DPSCS in December 2018, Mr. Rogers was refused a prosthetic or wheelchair and was instead offered forearm crutches for mobility. Ultimately, DPSCS provided Mr. Rogers with a wheelchair nearly two months after he was committed to DPSCS custody.
35. Failure to Provide and Maintain Wheelchairs and Assistants. Mr. Rogers resided in the Harford County Detention Center as he awaited sentencing and was provided a wheelchair in that facility. Upon arriving at MRDCC in December 2018, DPSCS and MRDCC denied Mr. Rogers the ability to enter that institution with a wheelchair and instead offered him foream1 crutches. On or about January 3, 2019, Mr. Rogers fell in the shower facilities at MRDCC. MRDCC does not have handicapped accommodations whatsoever. For example, MRDCC does not have handicapped showers, handrails, anti-slip guards, or shower chairs for disabled prisoners,
like Mr. Rogers. Consequently; MRDCC staff forced Mr. Rogers to hop on one leg in and out of
the shower facilities on wet floors MRDCC staff also refused to allow Mr. Rogers to bring his forearm crutches or any other assistive devices into the shower with him, despite the patent risk of harm. Ultimately and after several weeks ofthis practice, Mr. Rogers slipped and fell as he hopped out of the shower and seriously injured his right shoulder. Mr. Rogers raised concerns to MRDCC staff many times before his fall, but those complaints were ignored.
36. After falling, Mr. Rogers filed a formal grievance with the warden of MRDCC, complaining of the lack of handicap accessibility, both in the shower areas and elsewhere in the institution, including in his assigned cell. This grievance went unanswered.
37. Within days of this fall, DPSCS transferred Mr. Rogers from MRDCC to DRCF, which DPSCS represented to be a.fully ADA-compliant facility. At DRCF, staff again refused to provide Mr. Rogers with a prosthetic, but did request thata wheelchair be provided to Mr. Rogers.
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38. Shortly after his anival at DRCF, Mr. Rogers' forearm crutches broke in front of a DPSCS sergeant. That sergeant contacted a lieutenant who then asked the medical department to provide Mr. Rogers with new crutches. The sergeant also asked the medical department for an update on the status of Mr. Rogers' wheelchair.
39. After approximately one week-during which time Mi·. Rogers had to bonow another prisoner's wheelchair to access food, medical services, and the lavatory, DPSCS provided Mr. Rogers with a wheelchair. This wheelchair, however, was only designed for indoor use. However, DRCF's facilities required Mr. Rogers to travel outside of his housing unit to access every basic service, like food, medication, and the library.
40. The DPSCS-provided wheelchair routinely broke and needed maintenance. For example, the hardware that secured the brakes to the wheelchair came loose and made slowing or stopping the wheelchair very difficult. Mr. Rogers could not tighten the hardware on his own, which made traveling in the wheelchair hazardous. DRCF also failed to provide Mr. Rogers with a "pusher," a prisoner designated to assist and push a wheelchair-bound prisoner. Mr. Rogers advised the medical department of these concerns and the medical staff stated that they had informed maintenance staff. However, neither maintenance staff nor DRCF medical staff ever responded to this concern. Mr. Rogers ultimately had to rely on friendly maintenanceworkerswhen he could find them-to repair his wheelchair.
41. During his time at DRCF, Mr. Rogers saw several old or broken wheelchairs on the prison grounds being used by other prisoners.
42. Importantly, Mr. Rogers does not require a wheelchair to ambulate, but DPSCS forced Mr. Rogers to remain wheelchair-bound for his entire stay at DRCF by failing to provide him with a prosthetic or working crutches.
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43. Failure to Maintain Wheelchair Accessible Facilities. DPSCS institutions are not wheelchair accessible, despite DPSCS' claims to the contrary.. Upon his arrival at DRCF and after DPSCS finally provided Mr. Rogers with a wheelchair, he had significant difficulty with even the most basic activities of daily living because ofDRCF's lack of handicap accessibility.
44.. On or about March 31, 2019, Mr. Rogers filed a formal grievance at DRCF, complaining of insufficient and non-ADA compliant housing accommodations, shower and toilet facilities, accessible common areas, recreational activities and opportunities, dining accommodations, and visiting room accommodations. Mr. Rogers noted in his grievance that these complaints posed a continued threat to his health, safety, and welfare.
45. Specifically, Mr. Rogers complained that: (a) there was no shower hose, grab rails, or adjustable shower seats in DRCF's shower facilities; (b) the designated handicapped toilet was not the appropriate height; (c) the handicapped housing unit did not have. enough space between the beds for wheelchair-bound prisoners to safely navigate; (d) doorways were not cut wide enough to safely allow wheelchair access, (e) the exercise area was en a slepg ami cgntained logse fJ at rocks making wheelchair access impossible; (f) the tables in the dining and visiting rooms were too low and not handicap accessible; (g) the handicap housing unit contained many more wheelchair-bound prisoners than its design safely allowed (i.e. twenty-four prisoners in the housing unit, twenty of whom were confined to wheelchairs); and (h) there was only one handicap accessible bathroom for approximately sixty prisoners, both handicapped and otherwise.
46. Failure to Provide Jobs and Other Programming. DPSCS refused to provide a job to Mr. Rogers for his entire term of confinement, despite his being eligible and medically cleared for same. Mr. Rogers repeatedly requested that DRCF case managers provide him with a job so that he could earn money, earn diminution credits, and occupy his time with substantive work like
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non-disabled prisoners at DRCF.. Instead, Mr. Rogers was forced to sit idle each day for several

I

months, while his non-disabled peers enjoyed the benefits of prisoner job assigmnents.

47. Engagement in Retaliation and Interference. Mr. Rogers and the other prisoners

who use wheelchairs have been subjected to unfair harassment that interferes with their equal

access to DPSCS programs, services, and activities. For instance, the ARP coordinator at DRCF

expressly told Mr. Rogers to stop filing grievances about the facility's ADA noncompliance or

else he would be punished. 48. Failure to Reinstate Health Insurance Upon Release. Prior to his DPSCS
commitment, Mr. Rogers had Medicare insurance coverage for both medical and hospitalization services. DPSCS cancelled Mr. Rogers' Medicare medical coverage upon his commitment because DPSCS has a policy of enrolling incoming prisoners in the state Medicaid program. Upon Mr. Rogers' release, however, DPSCS failed to ensure that his Medicare medical coverage was

reinstated. 49. DPSCS has opted to provide medical care to it£ prisoners by selecting, through a
competitive bidding process, a private, for-profit company with which DPSCS contracts to render medical care and services at State prisons, including DRCF, MRDCC, and WCI. This contractual arrangement is based on "capitated financing," whereby the medical contractor sets up a pricing schedule that fluctuates monthly based on the average headcount of all prisoners committed to DPSCS. Under this capitated financing scheme, the contractor bears the full risk that health care costs may exceed the per prisoner price dictated by the pricing schedule in the contract. The medical contractor using the capitated system receives a fixed amount ofmoney per prisoner, and its profit increases as the cost of care it provides to the prisoners decreases, regardless ofhow much

or how little care is providedto the prisoners.

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50. DPSCS promulgates standard operating procedures for the provision of health care within its prisons, including those prisons, like DRCF, MRDCC, and WCI, where health care services are rendered by private contractors. The private contractors have their own procedures, but must also follow DPSCS' procedures. ·
51. The warden at any DPSCS prison is thehighest ranking DPSCS official at the facility. The warden has authority over all staff, including medical personnel. Even where there is a private medical contractor, the warden remains ultimately responsible for the operation of the facility, including health care treatment and security. DPSCS determines the medical . accommodations prisoners may receive, and medical staff have no authority to override DPSCS criteria.
52. Importantly here, DPSCS requires its private medical contractors to screen all incoming prisoners for Medicaid eligibility and to apply for Medicaid benefits where availabie. DPSCS incentivizes its private medical contractors by offering them a percentage of any Medicaid reimbursements for medical care while committed to DPSCS custody.
53. DPSCS, through its agent and private medical contractor, determined that Mr. Rogers was Medicaid-eligible upon his commitment to DPSCS confinement. DPSCS enrolled Mr. Rogers in the Medicaid program to ensure that DPSCS and/or its private medical contractor was reimbursed for any medical services rendered to Mr. Rogers during his term of confinement. This emollment occurred without Mr. Rogers' knowledge or consent. This enrollment canceled Mr. Rogers' Medicare eligibility and caused Medicare to discontinue his medical coverage. Upon his release, DPSCS failed to ensure that Mr. Rogers' Medicare coverage was reinstated, and also failed to refer Mr. Rogers to a regional social work supervisor for assistance with reinstating the Medicare coverage.
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54. DPSCS's failures compounded Mr. Rogers' already serious medica] issues in several meaningful ways. First, Mr. Rogers was left without any health insurance upon release. Second, Mr. Rogers could not seek medical attention for his severely injured right shoulder, which he sustained when he fell in the MRDCC shower. Not only did DPSCS fail to provide any meaningful medical care to Mr. Rogers for this injury during his confinement, but DPSCS also ensured that Mr. Rogers could not seek medical care upon his release without paying for same out of his own pocket.
55. Mr. Rogers repeatedly asked DPSCS for assistance with this issue, but was denied each time. In fact, Mr. Rogers brought this issue to the attention of his case manager, social worker, and DRCF medical staff prior to his release, but each refused to provide any assistance.
56. Mr. Rogers ultimately purchased private health insurance, at a cost of$170.00 per month, because being without health coverage is not an option for Mr. Rogers.
James Jardina 57. James Jardina was incarcerated in DPSCS from approximately 2015 through 2019, until his mysterious release in June 2019. On information and belief, DPSCS released Mr. Jardina after his repeated grievances and complaints concerning DPSCS and DRCF's failure to properly accommodate his disability. As a result of medical complications, Mr. Jardina is confined to a wheelchair. He relies on an ileostomy bag to relieve himself and requires ongoing medical care for his conditions. His mobility issues substantially limit several major life activities, including but not limited to walking and caring for himself. Mr. Jardina's disabilities are clearly documented in his medical and administrative records maintained by DPSCS. DPSCS has full knowledge that Mr. Jardina is disabled and requires accommodations. 58. Failure to Maintain Wheelchair Accessible Facilities. Mr. Jardina resided in at least two DPSCS facilities, WCI and DRCF. Each facility has features that are inaccessible to
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wheelchair users. WCI is almost entirely inaccessible to a wheelchair-bound individual. DRCF, as described herein, is similarly inaccessible.
59. Mr. Jardina filed numerous grievances with the wardens of WCI and DRCF, and sent additional complaints to DPSCS concerning the inaccessibility ofWCI and DRCF.
60. For example, on or about May 30,2017, Mr. Jarciina filed a formal grievance with DRCF's former warden, Casey Campbell, complaining that DRCF failed to accommodate his needs by: (a) maintaining a noncompliant grading on its walkways making it difficult to navigate in his wheelchair; (b) constructing hallways that are too narrow; (c) failing to install grab bars or hand rails in his bunk; (d) maintaining noncompliant bathroom and shower facilities; (e) refusing him access to case management services and other programming; (f) refusing him access to work release jobs; and (g) refusing him access to "offsite" family visits for up to forty-eight hours, as was offered to non-disabled prisoners.
61. On or about May 15, 2017, former warden Campbell responded to Mr. Jardina's grievance in writing and dismissed it without merit. Mr. Campbell stated that DRCF is "well within compliance," that "bed rails and/or grab bars on the beds are not an ADA requirement," that DRCF does not exceed the ratio of prisoners to handicap batmooms, that the DRCF showers do not require a shower hose, that DRCF was not obligated to place a certain size bench in the handicap shower, and that Mr. Jardina's claims concerning disabled prisoners being denied jobs was unsubstantiated.
62. During his time at WCI and DRCF, Mr. Jardina was not afforded any privacy when using the handicapped shower stall. This stall is in the plain view of other prisoners and guards and there is no privacy screen.
63. The dining halls at WCI and DRCF have insufficient seating for wheelchair users. Prisoners with disabilities must wait, sometimes outside without cover, until a seat is available for
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their wheelchair. Once inside, a wheelchair-bound prisoner cannot pull him or herself all the way up to a table because the tables are not designed to accommodate wheelchairs. Prisoners with disabilities must wait longer to eat than able-bodied prisoners.
64. At WCI and DRCF, Mr. Jardina was excluded from activities on the yard. The
facilities offer only a cement sidewalk or track with a weight pit area in the middle. The walking track is sloped and difficult for a wheelchair-bound prisoner to safely navigate, especially with wheelchairs that are in desperate needof maintenance. The ground of the weight pit is made of loose materials that are unsafe and unable to accommodate a wheelchair. The able-bodied prisoners can enjoy basketball and other recreational activities, while the wheelchair-bound prisoners are severely limited.
65. Although Mr. Jardina worked in the library at DRCF, he had to fast during the day because DRCF does not have a handicap accessible bathroom for prisoners on the west side of the facility where the library sits. To use a bathroom, Mr. Jardina would have to push himself outside fer hurukeds of yards back to his housing unit. The DRCF library area actually has a handicap accessible bathroom, but it is designated only for staff, and prisoners are not permitted to use that
facility. 66. Failure to Provide or Maintain Wheelchairs and Assistants. Mr. Jardina is a six
foot five, two hundred eighty pound wheelchair-bound individual who requires a wheelchair to ambulate. During his time at WCI in 2015, DPSCS refused to provide Mr. Jardina with his own wheelchair, despite several available wheelchairs at the facility. In May 2015, WCI medical staff ordered that Mr. Jardina be provided with a wheelchair, but failed to personalize a wheelchair for him. Because of Mr. Jardina's size, he requires modifications to a standard issue wheelchair to ensure his safety. Consequently, the wheelchair provided to Mr. Jardina was too small, uncomfortable, and was in need of several modifications to properly roll.
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67. WCI staff assigned an untrained prisoner as Mr. Jardina's wheelchair attendant. Because Mr. Jardina' s attendant was not trained, he pushed Mr. Jardina outside in the rain from his housing unit to the medication area. During that excursion, the right front wheel broke off of Mr. Jardina's wheelchair as it went over cracks and uneven pavement on the walkway. The attendant lost his footing, and Mr. Jardina was thrown from his wheelchair 'and landed on the ground. Mr. Jardina hit his head on the concrete and lost consciousness. He also injured his back, .neck, left hand, and left wrist.
68. Mr. Jardina filed a grievance with the WCI warden, and received a response stating that the cracked and uneven pavement did not cause the injury. Instead, WCI attributed this incident to "normal wear and tear of the wheelchair." Yet WCI delayed in repairing Mr. Jardina's wheelchair. WCI also failed to personalize or assign a wheelchair to Mr. Jardina that could be tailored to his individual needs. WCI fiuiher failed to train prisoner attendants or to modify its medication administration routine such that wheelchair-bound prisoners, like Mr. Jardina, did not have to navigate the elements especially with untrained wheelchair attendants 1 simply to obtain their medication.
69. When he arrived at DRCF, Mr. Jardina continued to experience difficulties in having his wheelchair repaired, having replacement parts ordered, and navigating the DRCF compound in the same way as his non-disabled counterparts.
70. Engaging in Retaliation or Interference. Mr. Jardina has filed numerous grievances in an effort to improve his conditions of confinement, and as a result has been repeatedly threatened by DPSCS staff. While at WCI, DPSCS staff would routinely denigrate Mr. Jardina and threaten to transfer him to an even less ADA compliant facility if he continued his complaints. This practice continued at DRCF, with DRCF staff threatening Mr. Jardina almost on a daily basis because he assisted many other disabled prisoners with their grievances. Both facilities also routinely delayed
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providing Mr. Jardina with the necessary medical equipment he required to use his ileostomy bag. The stress of having a disability while incarcerated caused Mr. Jardina tremendous anxiety, embarrassment, and humiliation, and caused Mr. Jardina to go without necessary and essential medical and.physical accommodations.
71. Despite his numerous grievances about objectively verifiable and meritorious matters, WCI, DRCF, and DPSCS have dismissed each of Mr. Jardina's grievances as lacking merit. This practice demonstrates DPSCS's willful ignorance of patently obvious issues in its facilities. Further confirmation of DPSCS's retaliatory treatment exists in its response to Mr. Rogers' grievance, which raised the identical concerns about DRCF's noncompliant facilities as Mr. Jardina raised in his myriad grievances. Warden Acuff confirmed that many facilities at DRCF are not ADA compliant. Specifically, Warden Acuff identified the following noncompliant features at DRCF: the bathrooms, showers, lack of grab bars and hand rails, bathroom to prisoner ratio, weight pit access, resurfacing complaints, table heights, and door sizes. Ironically though, Warden Acnff issued her response after both Messrs. Rogers and Jardina were released from DPSCS custody.. To date, DPSCS has not modified any of the identified noncompliant features at DRCF.
Larry Coleman 72. Larry Coleman has been incarcerated at DRCF since December 2018. Mr. Coieman requires a wheelchair to ambulate after a spinal cord injury in 1990. His mobility issues substantially limit several major life activities, including but not limited to walking and caring for himself. Mr. Coleman's disabilities are clearly documented in his medical and administrative records maintained by DPSCS. DPSCS has full knowledge that Mr. Coleman is disabled and requires accommodations.
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73. Failure to Provide or Maintain Wheelchairs and Assistants. DPSCS transferred Mr. Coleman from WCI to DRCF in December 2018. At WCI, Mr. Coleman had a wheelchair that his fan1ily provided to him. Upon his transfer, DRCF refused to permit Mr. Coleman to use his own wheelchair at the facility. Instead, DRCF told Mr. Coleman that he would have to use a
..
wheelchair provided to him by DRCF. Mr. Coleman advised DRCF staff that his personal wheelchair was already fitted to him to accommodate his specific needs. DRCF ignored this fact and provided Mr. Coleman with a wheelchair designed only for indoor use. This wheelchair was too small for Mr. Coleman, was not fitted to Mr. Coleman, was in poor condition, and was not designed for outside use. Mr. Coleman must travel outside of his housing unit to access every basic service, like food, medication, and the library. DRCF nevertheless told Mr. Coleman that this was his only option. Consequently, Mr. Coleman has been confined to a wheelchair that cannot accommodate his needs since his arrival at DRCF, and remains in that chair to date. Mr. Coleman's wheelchair is in shoddy condition and routinely breaks, but DRCF fails to repair or replace the wheelchair.
74. DRCF also refused to provide Mr. Coleman with a ''pusher" to assist him in navigating around the large DRCF facility.
75. Failure to Maintain Wheelchair Accessible Facilities. Mr. Coleman adopts and incorporates the previous paragraphs as if fully stated herein.
76. DPSCS institutions are not wheelchair accessible, despite DPSCS' claims to the contrary. Upon his arrival at DRCF, Mr. Coleman had significant difficulty with even the most basic activities of daily living because ofDRCF's lack of handicap accessibility.
77. Mr. Coleman has also filed formal grievances with DRCF advising of that facility's noncompliance, and also advising DRCF and DPSCS administrators that he has fallen in the shower. To date, neither DRCF nor DPSCS have adequately responded to these grievances,
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instead telling Mr. Coleman that his complaints are unfounded because DRCF is an ADAcompliant facility.
78. Failure to Provide Jobs and Other Programming. Mr. Coleman arrived at DRCF in December 2018, and was medically cleared for a job on January 12, 2019. However, DRCF refused to provide a job to Mr. Coleman until April23, 2019. During these months without a job,· Mr. Coleinan lost diminution credits that he should have earned based on his classification status and security level. It was not until Mr. Coleman submitted a formal grievance to DRCF that he was assigned a job.
79. Engagement in Retaliation and Interference. Mr. Coleman and the other prisoners who use wheelchairs have been subjected to unfair harassment that interferes with their equal access to DPSCS programs, services, and activities. For instance, medical and case management staff at DRCF have repeatedly told Mr. Coleman that he will be transferred back to a western Maryland prison if he continues to complain about DRCF's ADA noncompliance.
incent Berr 80. Mr. Berry has been incarcerated at DRCF since approximately 2016. Mr. Berry is a pamplegic prisoner who is confined to a wheelchair. He has no use of his legs and requires a wheelchair to ambulate. His mobility issues substantially limit several mi\ior life activities, including but not limited to walking and caring for himself. Mr. Berry's disabilities are well documented in his medical and administrative records maintained by DPSCS. DPSCS has full knowledge that Mr. Berry is disabled and requires accommodations. 81. Failure to Maintain Wheelchair Accessible Facilities. As previously stated regarding Messrs. Rogers and Jardina, DRCF is not ari ADA compliant facility. Mr. Berry experiences the same difficulties and exclusions as previously described.
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82. Mr. Berry has also filed formal grievances with DRCF advising of that facility's noncompliance, and also advising DRCF and DPSCS. administrators that he has sustained several injuries after falling in the shower. To date, neither DRCF nor DPSCS have adequately responded to these grievances, instead telling Mr. Berry that his complaints are unfounded because DRCF is an ADA compliant facility.
83. Mr. Berry also suffers fromDRCF's refusal to provide him with necessary medical equipment. For example, Mr. Berry requires routine replacement medical supplies, like single catheters, gloves; and underpads, but DRCF fails to provide him with the necessary provisions. This leaves Mr. Berry without the ability to properly or safely tend to his medical needs in a sanitary manner and causes Mr. Berry tremendous humiliation and embarrassment. Mr. Beny also requires periodic maintenance to his wheelchair, but DRCF refuses to make those accommodations. DRCF's failures in these areas leaves Mr. Berry at a significant disadvantage as compared to his non-disabled peers.
84. Mr. Ben-y must instead rely on his family to call the wheelchair manufacturer and request that it visits DRCF and repairs Mr. Berry's wheelchair. The only time that DRCF assisted Mr. Berry in contacting the wheelchair manufacturer, that company billed Mr. Berry for the repair costs.
85. Failure to Provide Jobs and Other Programming. Mr. Berry arrived at DRCF in 2016 and was medically cleared for a job assignment shortly thereafter. However, DRCF has refused to provide a job to Mr. Berry since his initial corrunitment. 'I"his has, and continues to disadvantage Mr. Beny because he cannot earn money or diminution credits, and he is instead forced to sit idle all day. Mr. Berry is thus treated differently than his non-disabled counterparts solely because of his disability.
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Prisoners With Non-Mobility Impairments John Fishback 86. Work Release and Employment at DRCF. Mr. Fishback is cun·ently incarcerated at DRCF, but has spent significant time in DPSCS institutions since 2002. Mr. Fishback suffers from bipolar disorder, which was diagnosed .at approximately age eleven. DPSCS, through its private medical contractor, has prescribed psychotropic medications to Mr. Fishback for this condition. In appro.ximately 2004, DPSCS, through its agents, volunteered Mr. Fishback for an experimental shoulder replacement surgery. This procedure left Mr. Fishback disabled and with a chronic pain condition in his left shoulder. For this chronic condition, DPSCS, through its agents, has prescribed non-opioid pain medication (Trarnadol) to Mr. Fishback for more than ten years. Without this medication, Mr. Fishback is in constant and intractable pain. 87. Throughout his time in DPSCS custody, Mr. Fishback has taken his Trarnadol as prescribed and without issue. Indeed, he has relied on this medication to relieve his chronic pain condition and to provide him with a basic quality of life. 88. In May 2019, DPSCS granted Mr. Fishback parole in December 2019, provided that he met certain conditions. Mr. Fishback is also eligible for the Home Detention Unit ("HDU") as of October 2019.
89. In order for Mr. Fishback to qualify for HDU and for transitional housing-which he has already secured-.upon his release, he must work so that he can save enough money to pay for these transitional facilities. However, since arriving at DRCF in2019, DPSCS and DRCF have refused to provide Mr. Fishback with a job.
90. Moreover, upon his transfer to DRCF, Mr. Fishback's classification status and security level was reduced to pre-release-a status that entitles him to work release and other privileges.
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91. Although DPSCS prisoners can work in the institutions during their incarceration, that employment only pays $0.90 to $2.75 per day. By contrast, work release employment pays prisoners regular wages. Maryland's current minimum wage is $10.10 per hour.
92. As a pre-release prisoner, Mr. Fishback is entitled to work release programs, provided that he is medically cleared by DPSCS and its agents. However, since his arrival at DRCF, DPSCS and its agents have systematically denied Mr. Fishback any opportunity to engage in HDU or work release programming. DPSCS and its agents identify Mr. Fishback's Tramadol prescription as the sole reason for his inability to work. According to DPSCS' s agents and medical personnel, Mr. Fishback's status as a chronic pain patient with a valid prescription issued by DPSCS precludes him from being able to participate in work release programs.
93. Worse yet, DRCF has refused to offer Mr. Fishback any job at all since his arrival at that facility. Instead, Mr. Fishback must sit idle all day. He is not able to earn even the nominal daily wage available to his non-disabled peers.
94 Mr. Fishback has filed formal grievances about this issue and discussed the matter with his case manager at DRCF. In response, DRCF advised Mr. Fishback that DPSCS policy prohibits him from participating in work release because he takes Tramadol. According to DPSCS and DRCF, Mr. Fishback can only obtain the requisite medical clearance for work release if he stops taking Trarnadol.
95. In response, and seeing that DPSCS and DRCF explicitly conditioned his ability to work on. discontinuing Trarnadol, Mr. Fishback reluctantly stopped taking his Tramadol prescription. He consulted with DRCF medical staff and advised them that he was only choosing this route because of the ultimatum placed on his work release.
96. Mr. Fishback then discontinued his Tramadol prescription over a two week period. Mr. Fishback endured this painful and psychologically disturbing process alone and without
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assistance from DPSCS or DRCF. In fact, DPSCS and DRCF do not offer programming or. services for prisoners who are discontinuing prescription pain medications. Mr. Fishback endured hotTible withdrawal symptoms as he tapered off of his Tramadol. He also suffered serious psychological side effects from this process. Mr. Fishback asked his case manager for addiction counseling or any assistance to soften the effects of this process, but no such services are available at DRCF; and ifthey are, they were not made available to Mr. Fishback.
97. DRCF. and DPSCS, through its agents, assured Mr. Fishback that once he discontinued the Tramadol, he would be eligible for work release. Mr. Fishback felt trapped, coerced, and thought that this was the only way to obtain work release opportunities. Once he discontinued the Tramadol, Mr. Fishback was in excruciating pain and unable to perform many basic activities of daily living.
98. . However, Mr. Fishback has not been providedwith work release opportuniti~s even after he discontinued the Trarnadol. In fact, DPSCS has advised Mr. Fishback that it removed work as a condition of his parole. Upon learning that work release would never be made available
to him even though he is eligible for same, Mr. Fishback resumed his Tramadol prescription.
99. · Moreover, DRCF still refuses to assign Mr. Fishback any work whatsoever, even within the facility. Consequently, Mr. Fishback is at a significant disadvantage, especially when compared with his non-disabled peers, in that he cannot earn money, cannot work, and cannot access programs and services for which he is otherwise eligible..
100. In order for Mr. Fishback to satisfy the terms of his release from DPSCS incarceration, he must find transitional housing that will accept him upon his release. Without this, Mr. Fishback carmot satisfy the terms of his release and risks remaining in priSon for the remainder of his sentence.
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101. On July 10, 2019, Mr. Fishback obtained preliminary approval from The Way Homes, a faith-based transitional housing facility in Pasadena, Maryland. This facility sent a letter to Mr. Fishback's case manager at DRCF advising that Mr. Fishback was approved for the program and that he would be expected to pay a down payment of $350.00 before moving in. Thereafter, Mr. Fishback must pay this facility $175.00 per week as rent.
102. Because DPSCS and DRCF are precluding Mr. Fishback from working-both at DRCF and on a work release program-Mr. Fishback cannot earn the money he needs to pay for his transitional housing and risks being unable to satisfy the terms of his release. Consequently · Mr. Fishback is disadvantaged, as compared to his non-disabled peers, solely because of his disability.
Eric Andre Young 103. Mr. Young is currently incarcerated at DRCF. Mr. Young is an asthmatic and was
diagnosed with that condition as a child.. Upon his arrival at DRCF. in 2019, Mr. Yo~ng was
classified as being eligible for outside work detail and work release programs. DPSCS and its agents performed the requisite medical clearance evaluation to authorize Mr. Young's inclusion in these programs and confirmed, inter alia, that Mr. Young could lift more than fifty pounds. However, DPSCS and its agents nevertheless deemed Mr. Young ineligible for outside detail and/or work release because of his asthma diagnosis.
104. Mr. Young sought reconsideration of this decision with his case manager at DRCF. However, the case manager advised Mr. Young that it is the policy of DRCF and DPSCS to prohibit prisoners with asthma, like Mr. Young, from outside work detail and/or work release programs.
105. Mr. Young filed a formal grievance with DRCF, but DRCF has not responded to that grievance.
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106. Because DPSCS and DRCF are precluding Mr. Young from assignments for which he is eligible solely because of his asthma diagnosis, Mr. Young cannot access the same opportunities, services, andprograms as his non-disabled peers.
The DRCF Facility 107. DRCF is a minimum security correctional facility located in Jessup, Maryland and is under the control of DPSCS and DOC. The facility was opened in 2013 and houses more than 500 male prisoners at any time. Defendants allege that the DRCF is an ADA-compliant facility with the ability to house wheelchair-bound individuals and individuals with other disabilities. 108. DRCF serves as a transitional facility for prisoners preparing for release. Many of the prisoners housed at DRCF are assigned to outside work details and have other job assignments and progranrming opportunities to aid in their transition. Some of these assignments are required as terms of the prisoners' parole. 109. In conjunction with its work release program, DRCF offers resume workshops, vocational training, and other programs that allow prisoners to receive diminution credits. Each diminution credit correlates to a one day reduction in a prisoner's sentence. A prisoner may earn five industrial credits each month during which he satisfactorily completes work assignments. Additionally, a prisoner may earn up to ten credits each month in which he shows satisfactory progress in special work projects or programs selected by the Commissioner and approved by the Secretary ofDPSCS. Work assignments also provide valuable vocational training for re-entry. 110. DRCF houses numerous wheelchair-bound individuals. Approximately twentyfour (24) wheelchair-bound prisoners reside in Housing Unit 1-C (the "Housing Unit")-an allegedly ADA-compliant housing unit within DRCF. As such, DRCF is required to make reasonable accommodations to allow wheelchair-bmmd prisoners equal access to its facilities, programs, services, and activities.
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111. Additionally, DRCFis obligated to comply with the 2010 Standards for Titles II and III Facilities: 2004 ADAAG ("ADA Standards"), published by the Department of Justice. The ADA standards set forth specific building requirements, such as the maximum allowable slope for wheelchair-access ramps and the required safety features in DRCF's handicap-accessible bathrooms. The 2010 standard for State and local governments consists of Title II regulations at 28 C.F.R § 35.151 and the 2001 ADAAG at 36 C.F.R. § 1191, appendices Band D.
112. DRCF's facilities faii to meet the standards required by the ADA 28 C.F.R § 35.151. Specifically, DRCF fails to provide an adequate number of accessible mobility cells pursuant to (§ 35.151(k)). Further, DRCF fails to comply with ADA Standards by failing to provide passing spaces in its hallways(§ 403.5.3), wheelchair-accessible shower and bathroom facilities (§§ 603-10, 903), grab bars in appropriate locations (§ 609), adequate wheelchairaccessible ramps throughout the facility (§ 405), and other features in the cells and housing units (§ 807).
113. DRCF also fails to provide the requisite ratio of shower and bathroom facilities to its disabled prisoner population, as required by Md. Code Regs. 12.02.03.06 (4) and (6).
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CLAIMS FOR RELIEF COUNT I
(42 U.S.C. §§ 12101-12165, 12202-12213-Discrimination Against Plaintiffs Because of Actual or Perceived Disabilities in Violation of the American With Disabilities Act) (Against All Defendants)
The previous paragraphs are incorporated as if fully set forth herein. 114. Congress enacted the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S. C. § 12101(b)(1). Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. 115. Public entities may not "[d]eny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service" they provide, nor may they afford such individuals "an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others." 28 C.F.R. § 35.130(b)(l)(i)-(ii). Further, public entities may not provide a qualified individual with an "aid, benefit, or service that is not as effective in affording equal opportunity" to gain a result or benefit and from "limit[ing] a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service." !d. § 35.130(b)(l)(iii), (vii). 116. The ADA prohibits public entities from imposing "eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can beshown to be necessary for the provision of the service, program, or activity being offered." !d. §
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35.130(b)(8). A public entity may "impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities ... based on actual risk, not on mere speculation, stereotypes, or generalizations about individuals with disabilities." !d. at 35.130(h).
117. Public entities' administration of their facilities and policies may not "have the effect· of subjecting qualified individuals with disabilities to discrimination on the basis of disability." !d.§ 35.130(b)(3).
118. Public entities are required to "make reasonable modifications in policies, practices, or procedmes when the modifications are necessary to avoid discrimination on the basis of disability unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." Id. § 35.130(b)(7)(i).
119. Title VI of the ADA prohibits discrimination against individuals for "oppos[ing] any act or practice made unlawful" by the ADA. 42 U.S.C. § 12203(a). It also prohibits the retaliation against, or the interference, coercion, or intimidation by any individual who has opposed ·or ~ssisted in the opposition of an act or right granted protection by the ADA See 42 I J S C § 12203.
120. DPSCS's administrative grievance process, work programs, educational programs, diminution of confinement credits, and facilities are services, programs, or activities under 42 U.S.C. § 12132.
121. Plaintiffs are individuals with disabilities, or perceived disabiliti"es, ctmently residing at DRCF. Plaintiffs are "qualified individuals with a disability" as contemplated in Title II of the ADA, 42 U.S.C. § 12131(2).
122. Defendants are departments, agencies, and instrmnentalities of the State of Maryland, or representatives, agents, and employees of those entities, and are public entities as defined in the ADA. 12 U.S.C. § 1231(1)(B).
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· 123. As prisoners committed to the custody of DPSCS, Plaintiffs are entitled to participate in and receive benefits of these services, programs, and activities.
124. Defendants have a pattern and practice ·of coercing, intimidating, threatening, and/or interfacing with prisoners' exercise or enjoyment of their ADA tights, and doing so because prisoner have exercised or enjoyed their ADA rights or aided and encouraged others to do so.
125. Defendant uses eligibility criteria that· either explicitly or tacitly screen out prisoners with disabilities.
126~ Defendant fails to maintain in operable working condition the features required for programs, services, and activities to be readily accessible to prisoners witl1 disabilities.
127. Defendants have denied, and continue to refuse Plaintiffs equal access to and benefits from DPSCS's services, programs, and activities because of Plaintiffs' disabilities or perceived disabilities. Defendants discriminate against Plaintiffs by failing to make reasonable. accommodations to DPSCS facilities that would allow Plaintiffs to safely access those facilities and pmticipate in the services, programs, and activities made available to other non-disabled prisoners.. Defendants have unfairly denied equal access to DPSCS's work release programs because of Plaintiffs' disabilities. Retaliation by Defendants' and their agents and employees against Plaintiffs for filing grievances and complaining about DPSCS's noncompliant facilities also constitutes discrimination against Plaintiffs because of their disabilities.
128. Defendants' administration of housing assignments and security classifications has the effect of subjecting Plaintiffs to discrimination on the basis of their disabilities and substantially impairs the objectives of the prisoner housing program by subjecting Plaintiffs to exploitation, safety hazards, and neglect. Defendants fail to house prisoners in the most integrated setting appropriate to their needs; places prisoners in .facilities that do not offer the same ·
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programming as other facilities; and deprives prisoners with disabilities of visitation with family

members by placing them in distant facilities where they would not otherwise be housed.

129. Defendants have retaliated against Plaintiffs ·by revoking or restricting their

privileges, harassing them, threatening to confiscate their property, placing them in inappropriate

housing assignments based on their security classification levels and/or their disability-related

needs, and summarily rejecting their grievances and complaints.

130. On information and belief, Defendants' ongoing ADA violations have also caused

Plaintiffs to serve longer terms of confinement than non-disabled prisoners solely because of their

disability or perceived disability. Specifically, Defendants' noncompliant policies limit the jobs

available to Plaintiffs becanse of their disabilities, making Plaintiffs unable to earn diminntion of

confinement credits in the same way as their non-disabled peers.

131. Plaintiffs are also routinely denied appropriate and timely medical care, follow up

treatment, and medical supplies. Specifically, the Wheelchair Plaintiffs are not provided with

supplies or pa1ts for their wheelchairs, ileostomy bags, and other necessary devices to

accommodate their disabilities. This practice has resulted in the Wheelchair Plaintiffs being

unable to repair their wheelchairs when necessary, or to use the bathroom in a safe and sanitary

marmer, and has caused them to suffer embarrassment, humiliation, and tremendous physical and

emotional discomfort.

132. The Non-Wheelchair Plaintiffs have medical conditions-the need for

prescriptions pain medication and an asthma diagnosis-which DPSCS and DRCF uses as excuses

to refuse them access to outside detail and/or work release programs. These Non-Wheelchair

Plaintiffs have made formal complaints to DPSCS and DRCF but have been denied and/or ignored.

Therefore, the Non-Wheelchair Plaintiffs cannot access the same opportunities, services, and

programs as their non-disabled peers.

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133. For example, for Mr. Fishback to qualify for HDU and for transitional housing (which he has already secured a commitment) upon his release, he must work so that he can save enough money to pay for these transitional facilities. However, since arriving at DRCF in 2019, DPSCS and DRCF have refused to provide Mr. Fishback with an institutional job or work release based solely on his Tramadol prescription.
134.. · Mr. Fishback is a chronic pain patient with a valid prescriptionissued by DPSCS. According to DPSCS and DRCF, Mr. Fishback can only obtain the requisite medical clearance for work release if he stops taking Trarnadol.
135. After DRCF and DPSCS, through its agents, coerced Mr. Fishback by assuring him that once he discontinued the Trarnadol, he would be eligible for work release, he went off the medication. He experienced withdrawal symptoms, including excruciating pain and was unable to· perform many basic activities of daily living. DPSCS and DRCF do not offer programming or services for prisoners who are discontinuing prescription·pain medications. Mr. Fishback asked his case manager for addiction counseling or any assistance to soften the effects of this process, but was refused treatment.
136. After all this and two weeks of withdrawal, DPSCS still refused to provide Mr. Fishback with work release opportunities. Upon learning that work release would never be made available to him even though he is eligible for same, Mr. Fishback resumed his Trarnadol prescription. Mr. Young's asthma has been similarly used against him by DPSCS.
137. Therefore, the Non-Wheelchair Plaintiffs are disadvantaged, as compared to their non-disabled peers, solely because of their disabilities.
138. The Wheelchair Plaintiffs also have no privacy during their medical appointments because of Defendants' noncompliance. For example, the Wheelchair Plaintiffs do not enjoy the same partition or privacy wall/curtain during their medical visits because DRCF is not designed to
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adequately acconunodate wheelchairs in the medical unit. This causes the Wheelchair Plaintiffs to lose their medical privacy and their confidentiality in the doctor/patient relationship.
139. Similarly, the Wheelchair Plaintiffs have no privacy when using the bathroom because of Defendants' noncompliance. As previously described, DRCF lacks the proper ratio of handicap accessible bathrooms to prisoners, causing disabled prisoners to use other bathrooms that are not designed to accommodate their needs.
140. The Wheelchair Plaintiffs also suffer from having no access to recreational programs and services that are available to non-disabled prisoners. For example and on information and belief, the weight pit at DRCF is filled with loose material that carmot accommodate a wheelchair. As a result, the Wheelchair Plaintiffs carmot access weight or exercise equipment that is made available to non-disabled prisoners.
141. Similarly, the Wheelchair Plaintiffs carmot reasonably access each part of the DRCF facility, including the handicapped bathrooms, the medication department, or the dining areas because the Defendants have failed to ensure that the walkways and pavement at DRCF are properly graded. Moreover, the Wheelchair Plaintiffs must travel outside and navigate the elements when moving from their housing unit to other parts of DRCF. This damages the Wheelchair Plaintiffs' wheelchairs, and neither DRCF nor DPSCS address these ongoing needs. As a result, the Wheelchair Plaintiffs carmot access services and facilities that are made available to non-disabled prisoners.
142. Defendants' refusal to make reasonable modifications to DPSCS facilities by providing ADA-required safety features has subjected Plaintiffs to discrimination on the basis of their disability. Defendants' failure to make i'easonable modifications to DPSCS's work release programs has excluded Plaintiffs from participating in the work release program on the basis of Plaintiffs' disabilities.
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143. Plaintiffs have suffered physical injuries and are regularly exposed to dangerous conditions as a result of Defendants' refusal to make reasonable modifications to DPSCS facilities. Because of Defendants repeated and ongoing violations, Plaintiffs must routinely place themselves in situations that are highly likely to cause significant injuries or have already caused significant injuries as a result ofDefendants' noncompliant bathrooms, showers, cells, access ramps, and other services and facilities. Plaintiffs have also suffered physical and emotional injuries because of Defendants' failure to provide addiction counseling and drug detoxification programs.
144. Plaintiffs have suffered damages in the form of lost wages, lost diminution credits, and a lack of vocational training from Defendants' failure to make reasonable modifications to DPSCS policies. Plaintiffs are unable to participate in DRCF's work release program to earn wages, nor do they receive vocational training due to their disabilities. Plaintiffs are also not able to participate in off-site trips because DPSCS and DRCF have repurposed the ADA-compliant transpmiation vehicles to cany ammunition to and from various DPSCS firing ranges. Indeed,
several offic~Jrs and case managers at DR-CF have advised the Wheelchair Plaintiffs that the only
way for them to leave the facility is "by release or by death." 145. Defendants continue to house Plaintiffs and other disabled prisoners m
noncompliant prison facilities withont providing reasonable modifications to the facility by adding the safety features required by the ADA. Accordingly, Plaintiffs and other disabled prisoners are exposed to a substantial risk of injury-a risk that routinely materializes into actual physical injury.
146. Defendants continue to operate its prison facilities under explicit or tacit policies . that exclude Plaintiffs and other disabled prisoners fi·om important educational, vocational, and other vital programs that are intended to both satisfy the minimal constitutional baseline concerning conditions of confinement, and to ease prisoners' transition from incarceration and back into the community.
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147. For example, Defendants remove or otherwise cancel Plaintiffs' health insurance upon their initial commitment to DPSCS. However, Defendants either do not have a policy, or fail to follow a policy if it exists, to assist Plaintiffs in resuming their health insurance upon their release from incarceration. This practice has resulted, inter alia, in Plaintiff Rogers, being unable to obtain necessary medical care (for serious physical injuries sustained during his incarceration with DPSCS) because he cannot reactivate his private health insurance and had no assistance upon his release from DPSCS regarding same.
148. As a result, Plaintiffs are significantly disadvantaged upon their rdease from incarceration, especially as compare to their non-disabled peers, because Plaintiffs have a host of medical and emotional issues with which to contend~all caused or exacerbated by Defendants' noncompliance.
149. Defendants' discrimination against Plaintiffs and failure to comply with the ADA will continue to pnt Plaintiffs at a severe disadvantage upon release and expose Plaintiffs to situations that are likely to cause substantial hann Plaintiffs will continue to he banned unless Defendants make the reasonable modifications required by the ADA.
150. Defendants are firmly aware of the myriad violations noted herein, but havefailed to cmrect them, thus exhibiting deliberate indifference to the rights of Plaintiffs and those similarly situated in DPSCS custody.
151. Defendants' pattern, practice, and deliberate indifference as described herein has proximately caused harm to individuals with disabilities in DPSCS custody, and Plaintiffs have suffered, and continue to suffer from harm and violations of their ADA rights. These harms will continue if not enjoined by this Court.
152. Accordingiy, Plaintiffs are entitled to compensatory damages and such other and further relief as demanded herein.
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COUNT II (29 U.S.C. § 794 Discrimination Against Plaintiffs Because of Disability
In Violation of Section 504 of the Rehabilitation Act) (Against All Defendants)
The previous paragraphs ani incorporated as if fully set forth herein. 153. Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federalfinancial assistance...." 29 U.S.C. § 794(a). 154. Section 504 defines "[p]rogram or activity as" "all of the operations of a department, agency, special purpose district, or other instrumentality of a State or of a local govenunent;. or the entity of such State or local government that distributes such assistance and each such department or agency (and e~chother State or local go~er!rmtmt entity) to which the assistance is extended, in the case of assistance to a State or local govenunent." !d. § 794(b)(1)(A)(B). The requirements of Section 504 apply "to each recipient of Federal financial assistance from the Department of Justice and to each program or activity receiving such assistance." 28 C.F:R. § 42.502. 155. A recipient of federal funding may not "[d]eny a qualified handicapped person the opportunity accorded others to participate in the program or activity receiving Federal financial assistance" or "[d]eny a qualified handicapped person an equal opportunity to achieve the same benefits that others achieve in the program or activity receiving Federal financial assistance." !d. § 42.503(b)(i)-(ii). Further, federally funded programs are prohibited from denying "a qualified handicapped person an equal opportunity to participate in the program or activity by providing services to the program." !d. § 42.503(iv).
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156. Entities receiving federal funding must "administer programs or activities in the most integrated setting appropriate to the needs of qualified handicapped persons." Jd § 42.503(d). The entity is prohibited fi·om "purposely or in effect discrimin[ating] on the basis of handicap, defeat or substantially impair accomplishment of the objectives of the recipient's program or activity with respect to handicapped persons, or perpetuate the dis9rimination of another recipient if both recipients are subject to common administrative control or aTe agencies of the sam~ State." Jd § 42.503(b)(3).
157. Defendants employ more than 15 individuals and, by way of operating every Maryland state prison, including DRCF, WCI, and MRDCC, receive federal grants and funding to administer these facilities. Accordingly, Defendants must follow the mandates of Section 504.
158. Defendants have a pattern and practice of excluding qualified individuals with disabilities, llke Plaintiffs, from paTticipating in and enjoying the benefits of programs, services, or activities, solely because of their disabilities. Such pattem and practices constitute
discriminatjon against Plaintiffs
159. Defendants, through the operation every Maryland prison, offer programs, services, and activities to prisoners, such as an administrative grievance process, work' programs, diminution credits, education programs, vocational training, inmate housing, and counseling. Defendants' programs, services, and activities aTe offered as means to help prisoners transition into society and provide useful skills that allow newly released prisoners to be self-reliant upon release. These programs and activities are also essential in reducing the potential for recidivism.
160. Plaintiffs, as individuals with disabilities or perceived disabilities, are individuals specifically contemplated by Section 504.
161. As prisoners committed to DPSCS custody, Plaintiffs aTe eligible to paTticipate in and receive the benefits of each of these services, programs, or activities. Id § 42.540(1)(2).
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162. As described herein, Defendants deny Plaintiffs equal access to and benefits from · services, programs, and activities because of Plaintiffs' disabilities or p~rceived disabilities. Defendants fail to equally extend DPSCS' vocational training and work release programs to Plaintiffs, causing Plaintiffs to lost the opportunity to work and earn money while incarcerated.
163. Defendants further discriminate against Plaintiffs because of their disabilities or perceived disabilities when they relegate them to jobs that provide lower pay and fewer diminution credits based on stereotypes about their abilities as disabled individuals.
164. Defendants also discriminate against Plaintiffs because of their disabilities or perceived disabilities by failing to provide them with the necessary medical care and devices that they require, and by refusing to properly house Plaintiffs in accommodations that are specifically designed and equipped for disabled individuals. Retaliation by Defendants and their agents and employees against Plaintiffs and other prisoners who assist Plaintiffs with the myriad difficulties they face because of Defendants' noncompliance also constitutes discrimination against Plaintiffs
165. Defendants also deny Plaintiffs the ability to obtain meaningful work release assignments, despite the Plaintiffs being classified for same. Indeed, DPSCS's employees and agents, including its medical personnel, are complicit with Defendants' refusals as medical staff routinely deny Plaintiffs medical clearance to participate in programs and services for which they are otherwise eligible, citing Plaintiffs' disabilities as the sole reason for denial.
166. Plaintiffs have suffered physical injuries as a direct and proximate cause of Defendants' discrimination.
167. Moreover, Plaintiffs have lost the opportunity to receive wages, diminution credits, and vocational training and will continue to experience these losses upon release. On information
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a.11d belief, this discrimination has and continues to cause disabled prisoners, like Plaintiffs, to remain incarcerated for longer te1ms of confinement than non-disabled p1isoners.
168. Defendants have retaliated against Plaintiffs by revoking or restricting their privileges, harassing them, threatening to confiscate their property, refusing to discuss these ongoing issues with them, and by threatening to transfer them to even less compliant Maryland prison facilities.
169. Defendants' failures to provide equal access to their services, benefits, activities, programs, privileges, and to provide reasonable modifications and accommodations, are policies, regular practices, and/or customs of the Defendants.
170. Defendants' continued failure to comply with the Rehabilitation Act has caused, .and will continue to cause, harm to Plaintiffs. Plaintiffs will continue to be harmed unless and until Defendants are ordered by this Court to make modifications to their policies, practices, procedures, and facilities pursuant to Section 504.
171. Defendants' pattern, practice, and deliberate indifference as described herein has proximately caused harm to individuals with disabilities in DPSCS custody, and Plaintiffs have suffered, and continue to suffer from harm and violations of their rights under the Rehabilitation Act. These harms will continue if not enjoined by this Court.
172. Accordingly, Plaintiffs are entitled to compensatory damages and such other and further relief as demanded herein.
COUNTITI (42 U;S.C. § 1983- Subjecting Plaintiffs to Serious Harm and a Substantial
Risk of Serious Harm in Violation of the Eighth Amendment) (Defendants Green, Moyer, Hill, Corcoran, Acuff, Campbell, Graham, and Scruggs)
The previous paragraphs are incorporated as if fully stated herein.
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173. The Eighth Amendment to the United States Constitution, which is incorporated against the states by the Fourteenth Amendment, provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
174. Plaintiffs bring suit pursuant to 42 U.S.C. § 1983 to seek redress for Defendants' infliction of cruel and unusual punishments. Defendants fail to make reasonable acconunodations to their policies and procedures or to provide Plaintiffs auxiliary aids or services to allow Plaintiffs to safely navigate DPSCS facilities, and to access the jobs, programming, and services available to other non-disabled prisoners.
175. Defendants also refuse to consider Plaintiffs' disabilities in housing, work, recreation, progranrming, and other areas all of which severely limit, if not bar entirely, Plaintiffs from participating in activities of daily living that are available to their non-disabled peers. Defendants refuse to make reasonable accommodations despite Plaintiffs' multiple written requests and grievances.
176 Defendants are aware of the harms and risks created by their policies and/or the way their policies are ilnplemented, and have refused to make reasonable acconunodations to DPSCS facilities or policies.
177. Defendants were personally involved in the alleged constitutional and statutory violations in that each of them: (a) directly participated in the infraction; (b) failed to remedy the wrong after learning of the violation through written complaints and grievances; (c) created a policy or custom under which unconstitutional and unlawful practices occurred; (d) allowed such a policy or custom to continue; (e) ignored the longstanding pattern of ADA noncompliance; and (f) was deliberately indifferent in both their own conduct and in managing their subordinates, which indifference caused the constitutional violations described herein.
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178. Plaintiffs have sustained, and continue to suffer serious and unreasonable risks of harm by the conduct of the Defendants, including but not limited to, physical injury, humiliation, disruption of their relationships with their loved ones, severe anxiety and emotional distress, extended terms of confinement because they are unable to earn diminution credits as they should, financial hardships, and other ongoing failures as described herein.
179. Plaintiffs have been harmed by the conduct of Defendants and are each entitled to compensatory and punitive damages.
COUNT IV (42 U.S.C. § 1983- Constitutional Denial of Due Process in Failing to Train and/or
Supervise) (Defendants Green, Moyer, Hill, Corcoran, Acuff, Campbell, Graham, and Scruggs)
The previous paragraphs are incorporated as if fully set forth herein. 180. As the Plaintiffs were persons in the custody of Defendants Green, Moyer, Hill, Corcoran, Acuff, Campbell, Graham, and Scruggs, a special relationship existed between these · Defendants and the Plaintiffs that reqtJired the Defendants to providEl protection and a.:sistance to the Plaintiffs. 181. Defendants Green, Moyer, Hill, and Corcoran are policymakers for DPSCS and iii that capacity establish policies, procedures, customs, and/or practices for DPSCS and DOC regarding the housing and conditions of confinement of prisoners and the conduct of its staff. Defendants Acuff, Campbell, Grahan1, and Scruggs are responsible for implementing DPSCS policies and regulations at their particular prison facilities, and for supervising DPSCS staff therein. 182. Defendants Green, Moyer, Hill, Corcoran, Acuff, Campbell, Graham, and Scruggs developed and maintained policies, procedures, customs, and/or practices regarding the treatment of prisoners with disabilities that exhibit a deliberate indifference to the constitutional rights of

Case 1:19-cv-03090-JKB Document 2 Filed 10/23/19 Page 47 of 50
such prisoners, as these Defendants knew that such policies routinely deprived the Plaintiffs, and those similarly situated, of their constitutional rights.
183. Defendants Green, Moyer, Hill, Corcoran, Acuff, Campbell, Graham, and Scruggs failed to properly train and supervise DPSCS staff with respect to reasonable accommodations for disabled prisone. rs, the legal require.ments for physical and auxiliary accommodations for such disabled prisoners, and properly responding to disabled prisoners' complaints about the inadequacy, or. like here, the complete absence of such accommodations.
. J84. Defendants Green, Moyer, Hill, Corcoran, Acuff, Campbell, Graham, and Scruggs were deliberately indifferent in failing to provide the requisite training and supervision to DPSCS staff, or the requisite protection and assistance to the Plaintiffs.
185. Defendant Green, Moyer, Hill, Corcoran, Acuff, Campbell, Graham, and Scruggs' failures caused harm to the Plaintiffs, as described herein.
COUNTY (Violations of Articles 16 and 25 ofthe Maryland Declaration of Rights)
(Against All Defendants) The previous paragraphs are incorporated as if fully set forth herein. 186. ·At all relevant times, each Defendant was acting under the color of state law as departments, officers, and employees of the State of Maryland, and their acts and/or omissions were conducted within the scope of their official duties or employment. 187. As described herein, Defendants' acts and omissions deprived the Plaintiffs of their rights under the Maryland Declaration of Rights, Articles 16 and 25, to be free from cruel and unusual punishment. 188. · The acts and omissions described herein caused injuries to the Plaintiffs.
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189. At all relevant times, Defendants were acting pursuant to DPSCS custom, policy, authority, decision, ordinance, regulation, widespread habit, usage, or practice in their actions toward the Plaintiffs.
190. As a direct and proximate result of Defendants' conduct, as described herein, the Plaintiffs have suffered actual physical and emotional injuries, and other damages and losses, some of which n;.ay be continuing in nature, thereby entitling Plaintiffs to compensatory and special damages.
191. Plaintiffs are therefore entitled to money damages to compensate them for their injuries and for the violation and deprivation of their rights under the Maryland Declaration of Rights.
WHEREFORE, Plaintiffs respectfully request that tl1is Honorable Court grants the following relief as to Counts I through V:
A. Enjoin Defendants from denying Plaintiffs equal and effective access to the gnevance process, library, work programs, educational and vocational ptogJams, building facilities, medical facilities, and to safe housing;
B. Enjoin Defendants from denying the Plaintiffs proper housing accommodations that can adequately accommodate their disability;
C. Enjoin Defendants from retaliating against Plaintiffs for engaging in protected activity under the Americans with Disabilities Act and/or Rehabilitation Act;
D. Enjoin Defendants to award Plaintiffs diminution credits toward their release in an amount commensurate with Plaintiffs' lost opportuoities to earn such credits through work, educational, or training programs as a result of Defendants' discriminatory actions;
E. Enjoin Defendants from transferring prisoners with disabilities to ADA noncompliant prison facilities or institutions;

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F. Award compensatory damages to each Plaintiff; G. Award punitive damages in an amount to be determined at trial; H. Award Plaintiffs, pursuant to 42 U.S.C. § 1988, their costs, expert witness fees, and

attorneys' fees in this action; and

I.

Grant any and all additional relief that Plaintiffs' causes require.

COUNT VI (Negligence) (Plaintiff Karl Rogers against Defendants DPSCS and Scruggs) Plaintiff Rogers incorporates the previous paragraphs as if fully set forth herein. 192. Defendants DPSCS and Scruggs owed a duty to Mr. Rogers arising out of their special relationship with him to protect him against unreasonable risk of physical harm. 193. Defendants DPSCS and Scruggs knew that MRDCC was not ADA-compliant because it did not have handicapped showers, handrails, anti-slip guards, or shower chairs for disabled prisoners, like Mr. Rogers. In sum, Defendants DPSCS and Scruggs knew that prisoners,

like Mr. Rogers, faced an unreasonable risk of physical harm. 194. Defendants DPSCS and Scruggs breached this duty by ignoring MRDCC's ADA
noncompliance, and by allowing MRDCC staffto force Mr. Rogers to hop on one leg in and out of the shower facilities on wet floors, and to prohibit Mr. Rogers to bring his forearm.crutches or any other assistive devices into the shower with him. Even if Defendants DPSCS and Scruggs did not intentionally ignore these practices and this behavior, they nevertheless breached the duty owed to Mr. Rogers by failing to intervene after becoming aware of these impermissible practices.
195. These avoidable breaches caused Mr. Rogers to fall as he exited the shower on January 3, 2019, which fall caused Mr. Rogers to sustain several tears in his right shoulder, and

other physical injuries.

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WHEREFORE, Plaintiff Karl Rogers prays for judgment in his favor and against Defendants DPSCS and Scruggs, jointly and severally, in the amount of Four Hundred Thousand Dollars ($400,000.00) as compensatory damages, costs, and such other and further relief that this
Court deems appropriate.
---

Da idDan a~

Th

. Whit ord

Erek L. Barron

Allen E. Honick

WHITEFORD, TAYLOR & PRESTON, L.L.P.

Seven Saint Paul Street, Suite 1500

Baltimore, Maryland 21202-1636

(410) 347-8700

ddaneman@wtplaw.com

· ahonick@wtplaw.com

Counselfor Plaintiffs

DEMAND FOR JURY TRIAL
The above-captioned Plaintiffs respectfully request that this matter be heard by a jury.
I

10169022

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 Case 1:19-cv-03090-JKB Document 19-1 Filed 12/30/19 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KARL ROGERS, et al.,

*

Plaintiffs,

*

v.

* Civil Action No. 1:19-cv-03090-ELH

DEPARTMENT OF PUBLIC

*

SAFETY & CORRECTIONAL

SERVICES, et al.,

*

Defendants.

*

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

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT

Case 1:19-cv-03090-JKB Document 19-1 Filed 12/30/19 Page 2 of 42
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................... iii INTRODUCTION ............................................................................................................ 1 SUMMARY OF THE COMPLAINT .............................................................................. 2 LEGAL STANDARD....................................................................................................... 4 ARGUMENT.................................................................................................................... 5 I. PLAINTIFFS HAVE FAILED TO STATE ANY PLAUSIBLE CLAIMS FOR RELIEF
UNDER § 1983 AGAINST THE INDIVIDUAL DEFENDANTS. ........................................ 5 A. Plaintiffs Have Failed to Allege That Defendants Were Personally
Involved in Any Deprivations of Plaintiffs’ Constitutional Rights. ......................... 5 B. Plaintiffs Have Failed to Allege a Plausible Claim of Deliberate
Indifference Under the Eighth or Fourteenth Amendments. .................................... 9 C. Plaintiffs Have Failed to Allege a Plausible Claim of a Denial of Due
Process Under the Fourteenth Amendment. ........................................................... 16 D. Plaintiffs Have Failed to Allege a Plausible Claim of a Denial of
Access to the Courts. .............................................................................................. 18 E. Defendants Are Entitled to Qualified Immunity from Plaintiffs’
Federal Constitutional Claims. ............................................................................... 20 II. PLAINTIFFS’ ADA CLAIM IS BARRED BY SOVEREIGN IMMUNITY. ........................ 23 III. PLAINTIFFS HAVE FAILED TO STATE ANY PLAUSIBLE CLAIMS FOR
RELIEF UNDER § 504 OF THE REHABILITATION ACT............................................... 24 IV. PLAINTIFFS HAVE FAILED TO STATE ANY PLAUSIBLE CLAIMS FOR
RELIEF UNDER ARTICLES 16 OR 25 OF THE MARYLAND DECLARATION OF RIGHTS BECAUSE THEY HAVE FAILED TO STATE CLAIMS UNDER THE EIGHTH AMENDMENT. ............................................................................................ 30 V. PLAINTIFF ROGERS’S CLAIM OF A NEGLIGENT BREACH OF THE ADA IS BARRED BY SOVEREIGN IMMUNITY AND OTHERWISE FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.................................................... 30
VI. DEFENDANTS ARE ENTITLED TO IMMUNITY FROM PLAINTIFFS’ STATE LAW CLAIMS. .......................................................................................................... 32
CONCLUSION............................................................................................................... 35
ii

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TABLE OF AUTHORITIES

Cases

Page

A Helping Hand, LLC v. Baltimore Cty., MD, 515 F.3d 356 (4th Cir. 2008) ......................................................................................... 25

Adams v. Perez, No. 08 Civ. 4834(BSJ)(MHD), 2009 WL 513036 (S.D.N.Y. Feb. 27, 2009) ....................................................................................................................... 11

Adams v. Rice, 40 F.3d 72 (4th Cir. 1994) ......................................................................... 19

Alsaifullah v. Furco, No. 12–CV–2907, 2013 WL 3972514 (S.D.N.Y.2013)................... 12

Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1995)........................................................... 19

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) .......................................................................... 21

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................. 5, 6, 7, 8, 15

Banks v. Broadwater, No. CIV.A. DKC 09-0589, 2011 WL 3164367 (D. Md. July 26, 2011) ....................................................................................................................... 30

Barbre v. Pope, 402 Md. 157 (2007) ................................................................................. 34

Barnes v. Young, 565 F. App’x 272 (4th Cir. 2014) ........................................................... 23

Baynard v. Malone, 268 F.3d 228 (4th Cir. 2001) ............................................................. 17

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................ 4, 5

Booker v. S.C. Dep't of Corr., 855 F.3d 533 (4th Cir. 2017) ............................................. 19

Bounds v. Smith, 430 U.S. 817 (1977)............................................................................... 18

Bray v. Marriott Int’l, 158 F. Supp. 3d 441 (D. Md. 2016) .............................................. 32

Brice v. Va. Beach Corr. Center, 58 F.3d 101 (4th Cir. 1995) ............................................ 15

Brockington v. Boykins, 637 F.3d 503 (4th Cir. 2011)...................................................... 22

Brooks v. State, 104 Md.App. 203 (1995) ......................................................................... 30

Brown v. Dep’t of Pub. Safety & Corr. Servs., 383 F. Supp. 3d 519 (D. Md. 2019) ......... 15

iii

Case 1:19-cv-03090-JKB Document 19-1 Filed 12/30/19 Page 4 of 42
Boyer v. State, 323 Md. 558 (1991) ................................................................................... 34 Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996)................................................................ 26 City & Cty. of San Francisco, Calif. v. Sheehan, 135 S.Ct. 1765 (2015) ......................... 22 Davidson v. Wexford Health Sources Inc., No. CIV.A. WDQ-13-2583, 2014 WL
2768586 (D. Md. June 16, 2014) .................................................................................. 26 De’Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003)). ......................................... 10, 11, 13 DeMallory v. Cullen, 855 F.2d 442 (7th Cir.1988)............................................................ 20 Doe v. Univ. of Maryland Med. Sys. Corp., 50 F.3d 1261 (4th Cir. 1995) ........................ 27 Drury v. Dziwanowski, No. CV MJG-15-3845, 2017 WL 1153890 (D. Md. Mar.
28, 2017) ....................................................................................................................... 30 Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2013)................................................................ 6 Farmer v. Brennan, 511 U.S. 825 (1994).......................................................... 9, 10, 13, 14 Graham v. Cox, ELH-18-221, 2019 WL 1427860 (D. Md. March 29, 2019)................... 15 Harlow v. Fitzgerald, 457 U.S. 800 (1982)....................................................................... 15 Helling v. McKinney, 509 U.S. 25 (1993) ......................................................................... 13 Hope v. Pelzer, 536 U.S. 730 (2002)................................................................................. 21 Huber v. Howard Cty., Md., 849 F. Supp. 407 (D. Md. 1994) .......................................... 24 Jackson v. Lightsey, 775 F.3d 170 (4th Cir. 2014)............................................................ 15 Jarboe v. Maryland Dep’t of Pub. Safety & Corr. Servs.,
No. Civ.A. ELH-12-572, 2013 WL 1010357 (D. Md. Mar. 13, 2013) ......................... 25 Jones v. Chandrasuwan, 820 F.3d 685 (4th Cir. 2016)..................................................... 20 Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994) ................................................................ 17 Koenig v. Maryland,
No. Civ.A. CCB-09-3488, 2010 WL 148706 (D. Md. Jan. 13, 2010) .......................... 24 Lamb v. Hopkins, 303 Md. 236 (1985) .............................................................................. 31 Lee v. Cline, 384 Md. 245 (2004) ...................................................................................... 33
iv

Case 1:19-cv-03090-JKB Document 19-1 Filed 12/30/19 Page 5 of 42
Lewis v. Casey, 518 U.S. 343 (1996)........................................................................... 18, 19 Liscombe v. Potomac Edison Co., 303 Md. 619 (1985). ................................................... 34 Manders v. Brown, 101 Md. App. 191 (1994) ................................................................... 34 Mann v. Adams, 855 F.2d 639 (9th Cir. 1988) ................................................................... 19 McCleary-Evans v. Maryland Dep’t of Transp., State Highway Admin.,
780 F.3d 582 (4th Cir. 2015) ........................................................................................... 4 McGee v. Pallito, No. 1:10-CV-11, 2011 WL 6291954 (D. Vt. Aug. 3, 2011).................... 5 Means v. S.C. Dep’t of Soc. Servs., No. CV 6:15-4104-HMH-KFM, 2017 WL
2189699 (D.S.C. Apr. 27, 2017) ................................................................................... 24 Miller v. Hinton, 288 F. App’x 901 (4th Cir. 2008) ........................................................... 26 Monell v. Dept. of Social Services, 436 U.S. 658 (1978) .................................................... 5 Owens v. Lott, 372 F.3d 267 (4th Cir. 2004) ..................................................................... 21 Paulone v. City of Frederick, 787 F. Supp. 2d 360 (D. Md. 2011) ................................... 26 Pearson v. Callahan, 555 U.S. 223 (2009) ................................................................. 20, 21 Pennhurst State Sch. & Hosp. v. Halderman,465 U.S. 89 (1984) ....................................... 15 Pevia v. Comm'r of Corr., No. CV ELH-17-0273, 2018 WL 4052244 (D. Md.
Aug. 24, 2018)............................................................................................................... 18 Quern v. Jordan, 440 U.S. 332 (1979)................................................................................ 16 Ramos v. Berkeley County, C.A. No. 2:11-3379-SB-BM, 2012 WL 5292899
(D.S.C. Aug. 7, 2012).................................................................................................... 24 Raynor v. Pugh, 817 F.3d 123 (4th Cir. 2016) .................................................................... 10 Reynolds v. Powell, 370 F.3d 1028 (10th Cir. 2004) ......................................................... 12 Rich v. Bruce, 129 F.3d 336 (4th Cir. 1997) ....................................................................... 10 Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292 (4th Cir. 2006) .................... 21 Rivers v. Hagner Mgmt. Corp., 182 Md. App. 632 (2008) ....................................................32 Rodriguez v. State, 218 Md.App. 573 (2014) .........................................................................31
v

Case 1:19-cv-03090-JKB Document 19-1 Filed 12/30/19 Page 6 of 42
Ruefly v. Landon, 825 F.2d 792 (4th Cir. 1987).................................................................. 10 Savko v. Rollins, 749 F. Supp. 1403 (D. Md. 1990) .......................................................... 18 Scinto v. Stansberry, 841 F.3d 219 (4th Cir. 2016) ........................................................... 10 Shakka v. Smith, 71 F.3d 162 (4th Cir. 1995).................................................................... 11 Shariff v. Coombe, 655 F. Supp. 2d 274 (S.D.N.Y. 2009) ........................................... 11, 14 Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994)) ...................................................................... 6 Shoemaker v. Smith, 353 Md. 143 (1999).......................................................................... 33 Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984) .................................................................. 17 Spencer v. Earley, 278 F. App’x 254 (4th Cir. 2008) ........................................................ 23 Spencer v. Easter, 109 Fed. App’x 571 (4th Cir. 2004) .................................................... 26 Stewart v. North Carolina, 393 F.3d 484 (4th Cir. 2005) ........................................... 16, 24 Strickler v. Waters, 989 F.2d 1375 (4th Cir.1993) ....................................................... 11, 20 Sylla v. City of New York, No. 04–cv–5692 (ILG), 2005 WL 3336460 (E.D.N.Y.
Dec. 8, 2005) ................................................................................................................. 12 Thacker v. City of Hyattsville, 135 Md. 268 (2000) .......................................................... 33 United States v. Georgia, 546 U.S. 151 (2006) ................................................................. 23 Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir. 1977).............................................................. 5,6 Wells v. State, 100 Md. App. 693 (1994) ........................................................................... 34 Whitley v. Albers, 417 U.S. 312 (1986)............................................................................... 10 Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) .............................................. 23 Williams v. Branker, 462 F. App’x 348 (4th Cir. 2012).................................................... 14 Williams v. Dillon, No. 93–3127–DES, 1993 WL 455442 (D.Kan. Oct. 28, 1993) ......... 12 Wilson v. Layne, 526 U.S. 603 (1999)............................................................................... 21 Wilson v. Seiter, 501 U.S. 294 (1991)................................................................................ 11 Young v. City of Mount Ranier, 238 F.3d 567 (4th Cir. 2001) .......................................... 17
vi

Case 1:19-cv-03090-JKB Document 19-1 Filed 12/30/19 Page 7 of 42 Statutes & Rules 29 U.S.C. § 794 ............................................................................................................. 1, 24
(Rehabilitation Act, Section 504) 42 U.S.C § 1983 .............................................................................................................. 1, 5 42 U.S.C. § 12132 ............................................................................................................. 24 42 U.S.C. §§ 12131-12165, 12201-12213........................................................................... 1
(Americans with Disabilities Act, Title II) Fed. R. Civ. P. 12(b)(6) .................................................................................................... 1, 4 Md. Code Ann., Corr. Servs § 8-103. ................................................................................ 18 Md. Code Ann., Cts. & Jud. Proc. § 5-522........................................................................ 33 Md. Code Ann., State Gov’t §§ 12-103(2), 12-105..................................................... 16, 33
vii

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INTRODUCTION Plaintiffs, who identify themselves as current and former inmates of the Maryland Division of Correction (“DOC”) who are disabled, have filed a six-count complaint (“complaint”) (ECF No. 2) in which, among other claims, they seek to hold senior officials of the Department of Public Safety and Correctional Services (“the Department”) personally liable for purportedly denying plaintiffs’ constitutional rights. The named individual defendants in the complaint are Secretary of Public Safety and Correctional Services Robert L. Green; Commissioner of Correction Wayne Hill; Warden of the Maryland Correctional Pre-Release System Jama Acuff; former Warden of the Western Correctional Institution Richard J. Graham, Jr.; former Warden of the Maryland, Reception Diagnostic, and Classification Center Carolyn J. Scruggs; former Warden of the Dorsey Run Correctional Facility Casey Campbell; former Secretary of Public Safety and Correctional Services Stephen T. Moyer; and former Commissioner of Correction Dayena Corcoran. Plaintiffs bring suit under 42 U.S.C § 1983 against the individual defendants in their individual and official capacities for alleged violations of the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiffs have also sued the Department and the individual defendants under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12165, 12201-12213; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehab Act”); and the Maryland Declaration of Rights. Defendants now move to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure
1

Case 1:19-cv-03090-JKB Document 19-1 Filed 12/30/19 Page 9 of 42
because plaintiffs have failed to state viable claims for relief under § 1983, the ADA, the Rehab Act, or Maryland law.1
SUMMARY OF THE COMPLAINT Plaintiffs Karl Rogers, James Jardina, Larry Coleman, and Vincent Berry allege that they are “wheelchair-bound prisoners currently or formerly residing at the Dorsey Run Correctional Facility . . . , a [Department] prison facility[.]” Compl., ¶ 3. Mr. Rogers alleges that he is “a single-leg amputee and requires a prosthetic or other assistive devices to ambulate.” Compl., ¶ 34. He states that he “was released from [Department] custody in May 2019,” and that “[d]uring his incarceration with [the Department], [he] was housed at the Maryland Reception, Diagnostic and Classification Center (“MRDCC”) in Baltimore, and at [Dorsey Run].” Compl., ¶ 10. Mr. Jardina alleges that, “[a]s a result of medical complications,” which he does not describe, he “is confined to a wheelchair” and “relies on an ileostomy bag to relieve himself and requires ongoing medical care.” Compl., ¶ 57. He alleges that he was “mysteriously released” from the custody of the Department in June 2019, after the Department allegedly “conceded that it could not accommodate [his] ongoing and serious medical needs,” Compl., ¶ 11, and that “[d]uring his incarceration with [Department]. . . [he] was housed at several [Department] facilities, including the Western Correctional Institution (“WCI”) and [Dorsey Run].” Id.
1 The complaint was filed on August 30, 2019 in the Circuit Court for Baltimore City. On October 23, 2019, defendants removed the case to this Court pursuant to 28 U.S.C. § 1446(a). See ECF No. 1.
2

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Mr. Coleman alleges that he “requires a wheelchair to ambulate after a spinal cord injury in 1990,” Compl., ¶ 72, and that he has been incarcerated at Dorsey Run since December 2018. ¶ 72. Mr. Berry alleges that he is “a paraplegic prisoner who is confined to a wheelchair,” and that he “has been incarcerated at [Dorsey Run] since approximately 2016.” Compl., ¶ 80.
Plaintiffs John Fishback and Eric Andre Young allege that they “are prisoners with disabilities or perceived disabilities who are currently housed at [Dorsey Run].” Compl., ¶ 4. Mr. Fishback, who alleges that he “suffers from bipolar disorder and chronic pain,” Compl., ¶ 14, states that he “is currently incarcerated at [Dorsey Run], but has spent significant time in [Department] institutions since 2002.” Compl., ¶ 86. Mr. Young alleges that he “is an asthmatic and was diagnosed with that condition as a child,” Compl., ¶ 15, and that he is currently incarcerated at Dorsey Run, having “arriv[ed] at [Dorsey Run] in 2019.” Compl., ¶ 103.
In their complaint, plaintiffs allege that Dorsey Run is not a “Wheelchair Accessible Facilit[y]” because it does not maintain “ADA-compliant housing accommodations, shower and toilet facilities, accessible common areas, recreational activities and opportunities, dining accommodations, and visiting room accommodations.” Compl., ¶ 44. Mr. Jardina, who was previously confined at WCI, also complains that WCI is “almost entirely inaccessible to a wheelchair-bound individual.” Compl., ¶ 58. Mr. Jardina and Mr. Coleman also complain that the wheelchairs provided for them at Dorsey Run are inadequate. Plaintiffs Rogers, Jardina, Berry, and Coleman, also allege that they have been “also routinely denied appropriate and timely medical care, follow up treatment, and
3

Case 1:19-cv-03090-JKB Document 19-1 Filed 12/30/19 Page 11 of 42
medical supplies,” such as catheters, gloves, underpads and ileostomy bags. Compl., ¶ 28, 83, 113. Mr. Fishback and Mr. Young allege that they have been denied the opportunity to participate in pre-release programming, including home detention, work release and “outside detail,” because of their disabilities, Compl. ¶¶ 88-102, and that they “cannot access the same opportunities, services, and programs as [their] non-disabled peers.” Compl., ¶ 104.
The complaint contains the following counts: Count I (“Discrimination Against Plaintiffs Because of Actual or Perceived Disabilities in Violation of the [ADA]”) (against all defendants); Count II (“Discrimination Against Plaintiffs Because of Disability [i]n Violation of Section 504 of the Rehabilitation Act”) (against all defendants); Count III (“42 U.S.C. § 1983 – Subjecting Plaintiffs to Serious Harm and a Substantial Risk of Serious Harm in Violation of the Eighth Amendment”); (against the individual defendants); Count IV (“42 U.S.C. § 1983 – Constitutional Denial of Due Process in Failing to Train and/or Supervise”); (against the individual defendants); Count V (“Violations of Articles 16 and 25 of the Maryland Declaration of Rights”) (against all defendants); Count VI (“Negligence”) (against defendants Department and Carolyn Scruggs).
LEGAL STANDARD A motion made under Rule 12(b)(6) allows a complaint to be dismissed for failure to state a claim upon which relief can be granted. Indeed, a complaint must be dismissed if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under the plausibility standard, a complaint must contain “more than labels and conclusions” or a “formulaic recitation of
4

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the elements of a cause of action.” Twombly, 550 U.S. at 555. Rather, the complaint must be supported by factual allegations that “raise a right to relief above the speculative level.” Id. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to plead a claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See McCleary-Evans v. Maryland Dep’t of Transp., State Highway Admin., 780 F.3d 582, 587 (4th Cir. 2015) (“[T]he Supreme Court has, with Iqbal and Twombly, rejected the sufficiency of complaints that merely allege the possibility of entitlement to relief, requiring plausibility for obtaining such relief and thus rejecting a complaint in which the plaintiff relies on speculation.”). For the reasons set forth below, plaintiffs’ complaint fails to plead with sufficiency any of their claims, and therefore should be dismissed in its entirety.
ARGUMENT
I. PLAINTIFFS HAVE FAILED TO STATE ANY PLAUSIBLE CLAIMS FOR RELIEF UNDER § 1983 AGAINST THE INDIVIDUAL DEFENDANTS. A. Plaintiffs Have Failed to Allege That Defendants Were Personally Involved in Any Deprivations of Plaintiffs’ Constitutional Rights. Plaintiffs’ complaint contains no plausible claims against the individual defendants
for violating plaintiffs’ rights to due process of law or to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments. First, plaintiffs have alleged no facts showing the defendants’ personal involvement in unconstitutional conduct. It is well-settled that liability under 42 U.S.C. § 1983 must be premised on the defendant’s personal conduct and cannot rest on any theory of vicarious liability. Monell v. Department of Soc. Servs., 436 U.S. 658, 691–695 (1978). See also Vinnedge v. Gibbs, 550 F.2d 926,
5

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928 (4th Cir. 1977) (liability under § 1983 requires a state official to have acted personally to cause a deprivation of constitutional rights).
Absent an allegation of direct involvement by a supervisor in causing an injury, a supervisor may be held liable only if the plaintiff demonstrates that: (1) the supervisor had “knowledge that his subordinate was engaged in conduct that posed a ‘pervasive and unreasonable risk’ of constitutional injury” to plaintiff; (2) the supervisor’s response “was so inadequate as to show ‘deliberate indifference to or tacit authorization of’” the alleged conduct; and (3) “‘an affirmative causal link’ between the supervisor’s inaction” and the plaintiff’s injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations omitted).
Plaintiffs have failed to meet this rigorous standard. “[T]he Supreme Court explained in Iqbal that ‘a supervisor’s mere knowledge’ that his subordinates are engaged in unconstitutional conduct is insufficient to give rise to liability; instead a supervisor can only be held liable for ‘his or her own misconduct.’” Evans v. Chalmers, 703 F.3d 636, 660-61 (4th Cir. 2013) (quoting Iqbal, 556 U.S. at 677). Thus, “‘a plaintiff must plead that each [supervisory] defendant, through the official’s own individual actions, has violated the Constitution.’” Chalmers, 703 F.3d at 661 (quoting Iqbal, 556 U.S. at 676). Plaintiffs have not done so. For the most part, references to the individual parties are contained in the “Parties” section of the complaint, which merely identifies the defendants as supervisors and alleges, in conclusory fashion, that they were “aware of [the Department’s] policies and practices regarding disabled prisoners” and “knowledgeable of the requirements of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 [of the Rehab Act].” Compl., ¶¶ 18-25. Elsewhere,
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the complaint simply provides “formulaic recitation[s] of the elements” of constitutional claims against the individual defendants, Iqbal, 556 U.S. at 681, without identifying any unconstitutional conduct or violation allegedly perpetrated by any particular defendant. See, e.g., Compl. at 44 and ¶ 177 (alleging that “Defendants were personally involved in the alleged constitutional and statutory violations in that each of them directly participated in the infraction” but failing to identify any conduct engaged in by any defendant). Such “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a constitutional violation against a government official sued in his or her individual capacity. See Iqbal, 556 U.S. at 681 (allegations that the U.S. Attorney General was the “principal architect” of “unconstitutional policy that subjected [plaintiff] to harsh conditions of confinement on account of his race, religion, or national origin” and that he “knew of, condoned, and willfully and maliciously agreed to subject” plaintiff to harsh conditions of confinement “as a matter of policy . . . for no legitimate penological interest” were “conclusory [allegations] and not entitled to be assumed true”).
On the two occasions where defendants are mentioned with any degree of specificity in the complaint, the plaintiffs’ factual allegations fail to identify how their alleged conduct personally violated any plaintiff’s constitutional rights. First, plaintiffs allege that, in response to a grievance filed by Mr. Rogers, “Warden Acuff confirmed that many facilities at [Dorsey Run] are not ADA compliant,” Compl., ¶ 71, but they do not explain how this alleged statement demonstrates personal involvement in a violation of plaintiffs’ constitutional rights to due process or to be free from harm under the Eighth Amendment. Plaintiffs also allege that Warden Campbell responded to a grievance filed by Mr. Jardina
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by asserting that Dorsey Run is “well within [ADA] compliance” with regard to inmate beds, “the ratio of prisoners to handicap bathrooms,” and the configuration of the institution’s showers, and by stating that “Mr. Jardina's claims concerning disabled prisoners being denied jobs was unsubstantiated.” Compl., ¶ 61. While plaintiffs dispute the accuracy of Warden Campbell’s response, they provide no facts plausibly suggesting that Warden Campbell was personally involved in an alleged violation of Mr. Jardina’s or any other plaintiff’s constitutional rights.
Plaintiffs have failed to allege any facts demonstrating that Secretary Green and Secretary Moyer, Commissioners Hill and Corcoran, or Wardens Acuff, Graham, Campbell, and Scruggs had even “mere knowledge” that any subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to plaintiffs, let alone that they were indifferent to or tacitly approved it. To allow plaintiffs to proceed with their personal capacity claims based on the threadbare assertion that defendants were “aware” of “policies and practices” and the requirements of the law, Compl., ¶¶ 17-24, would inappropriately burden defendants with having to defend against claims bereft of any specific alleged conduct relating to any individual party. See Iqbal, 556 U.S. at 685 (“If a Government official is to devote time to his or her duties . . . it is counterproductive to require the substantial diversion that is attendant to participating in litigation and making informed decisions as to how it should proceed. Litigation . . . exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that might otherwise be directed to the proper execution of the work of the Government.”); Chalmers, 703 F.3d at 665 (dismissing insufficient pleadings because allowing them “to proceed would let litigation loose in such a
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fashion as to impair the ability of the criminal justice system to do its job. . . . That is to say, individuals would be pulled into the coercive proceedings of courts when they have no business being there.”). Accordingly, plaintiffs’ claims against the individual defendants should be dismissed.
B. Plaintiffs Have Failed to Allege a Plausible Claim of Deliberate Indifference Under the Eighth or Fourteenth Amendments.
The complaint contains no plausible claims that defendants were deliberately indifferent to alleged “serious and unreasonable risks of harm” to any plaintiff in violation of the Eighth or Fourteenth Amendments. See Compl., ¶ 93. Plaintiffs allege that the defendants violated their rights to be free from serious harm by “fail[ing] to make reasonable accommodations to their policies and procedures or to provide Plaintiffs auxiliary aids or services to allow Plaintiffs to safely navigate DPSCS facilities.” Compl., ¶ 174. They also allege that defendants violated the Eighth Amendment by “refus[ing] to consider Plaintiffs’ disabilities in housing, work, recreation, programming, and other areas all of which severely limit, if not bar entirely, Plaintiffs from participating in activities of daily living that are available to their non-disabled peers.” Compl., ¶ 175. These allegations fail to state actionable claims under the well-established Eighth Amendment test, which requires a prisoner to demonstrate that a prison official “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
1. Elements of an Eighth Amendment Claim. To succeed on an Eighth Amendment claim regarding the conditions of a prisoner’s confinement, an inmate must establish both elements of a two-prong standard. First, to
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satisfy the “objective” prong, a plaintiff inmate must “demonstrate that ‘the deprivation alleged [was], objectively, sufficiently serious.’” Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (quoting Farmer, 511 U.S. at 834). A deprivation is sufficiently serious only if it is “‘extreme’— meaning that it poses a ‘serious or significant physical or emotional injury” or “‘a substantial risk of such serious harm resulting from . . . exposure to the challenged conditions.’” Scinto, 841 at 225 (quoting De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003)).
The subjective component requires a showing “that the prison official had a ‘sufficiently culpable state of mind,’ which . . . consists of ‘deliberate indifference to inmate health or safety.’” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (quoting Farmer, 511 U.S. at 834). Under the subjective test, “actual knowledge of facts from which a reasonable person might have inferred the existence of the substantial and unique risk to [the prisoner] . . . is not enough to establish a violation of the Eighth Amendment,” because “the defendant official . . . must actually have drawn the inference.” Rich v. Bruce, 129 F.3d 336, 340 (4th Cir. 1997). Thus, negligence alone does not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. See Ruefly v. Landon, 825 F.2d 792, 793 (4th Cir. 1987); Whitley v. Albers, 475 U.S. 312, 319 (1986) (“It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the prohibited conduct.”).
2. Plaintiffs Have Failed to Meet the Objective Component of an Eighth Amendment Claim Because They Have Failed to Allege Facts Constituting a “Substantial” or “Excessive” Risk of Serious Harm.
Plaintiffs’ complaint does not satisfy the objective element of an Eighth Amendment claim because plaintiffs have failed to allege that they were subjected to conditions which
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caused them serious harm or exposed them to a substantial risk of serious harm. As the Fourth Circuit has explained, “[t]he Eighth Amendment does not prohibit cruel and unusual prison conditions; it prohibits cruel and unusual punishments.” Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993). Thus, as noted, “[o]nly extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim regarding conditions of confinement.” De’Lonta, 330 F.3d at 633–34 (4th Cir. 2003). See also Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (“‘[O]nly those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment violation.’”) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
None of the plaintiffs’ allegations of harm meet the objective standard for establishing an Eighth Amendment violation. Mr. Rogers alleges that, when transferred to MRDCC for a brief confinement, he was “denied the ability to enter that institution with a wheelchair and instead offered . . . forearm crutches.” Compl., ¶ 35. He does not dispute that he was able to ambulate with the crutches, but claims that on January 3, 2019, he fell on a wet floor in the shower facilities at MRDCC because he was not permitted to use his crutches and the shower lacked “handrails, anti-slip guards, or shower chairs,” resulting in “serious[] injur[y] [to] his right shoulder.” Compl., ¶ 35. This is insufficient, because “courts have found that wet or slippery floors or a prison’s failure to equip showers with non-slip mats are not the types of conditions warranting relief under the Eighth Amendment.” Shariff v. Coombe, 655 F. Supp. 2d 274, 300–01 (S.D.N.Y. 2009) (citing Adams v. Perez, No. 08 Civ. 4834(BSJ)(MHD), 2009 WL 513036, at *3 (S.D.N.Y. Feb. 27, 2009) (“[A] failure on the part of prison officials to provide shower mats does not rise to
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the level of a constitutional violation”); Sylla v. City of New York, No. 04–cv–5692 (ILG), 2005 WL 3336460, at *3 (E.D.N.Y. Dec. 8, 2005) (“Courts have regularly held that a wet or slippery floor does not pose an objectively excessive risk to prisoners”); and Williams v. Dillon, No. 93–3127–DES, 1993 WL 455442, at *1 (D.Kan. Oct. 28, 1993) (“Even if the absence of a shower mat contributed to plaintiff’s fall, it would still fail to evidence the kind of condition proscribed under the eighth amendment”). See also Alsaifullah v. Furco, No. 12–CV–2907, 2013 WL 3972514, at *14 (S.D.N.Y.2013) (prisoner’s claim that he injured shoulder in slip-and-fall resulting from failure to install handrails was not cognizable under the Eighth Amendment). See also Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir.2004) (slippery condition arising from standing water in prison shower did not constitute cruel and unusual punishment, even where inmate was on crutches and had warned prison employees that he was at heightened risk of falling).
Mr. Rogers’s claims arising from his confinement at Dorsey Run also fail to meet the objective prong of the Eighth Amendment test. Mr. Rogers complains that “[s]hortly after his arrival at [Dorsey Run],” his “forearm crutches broke,” and, for a one week period, he “had to borrow another prisoner’s wheelchair to access food, medical services, and the lavatory.” Compl., ¶¶ 38, 39. He does not dispute that he was able to access those services during the one-week period, but complains that after his wheelchair arrived, it “routinely broke and needed maintenance,” that “the hardware that secured the brakes to the wheelchair came loose and made slowing or stopping the wheelchair very difficult,” and that he “had to rely on friendly maintenance workers––when he could find them––to repair his wheelchair.” Compl., ¶ 40. Mr. Rogers alleges no facts demonstrating that the alleged
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defects in his wheelchair prevented him from obtaining food, medical services, or hygiene, let alone that they “pose[d] an unreasonable risk of serious damage to his future health.” Helling v. McKinney, 509 U.S. 25, 35 (1993). Accordingly, these allegations fail to state an Eighth Amendment violation.
Mr. Jardina’s and Mr. Coleman’s complaints regarding their wheelchairs also fail to state plausible Eighth Amendment claims. Mr. Coleman acknowledges that, while confined at WCI, he “had a wheelchair that his family provided to him” that was “fitted to him to accommodate his specific needs,” Compl., ¶ 73, but that, upon his transfer to Dorsey Run, he “ha[d] to use a wheelchair provided to him by [the facility],” which was “too small . . ., not fitted to Mr. Coleman, . . . in poor condition,” and “not designed for outside use.” Compl., ¶ 73. Similarly, Mr. Jardina acknowledges that a wheelchair was provided to him, but complains that WCI staff “failed to personalize a wheelchair for him,” and that “[c]onsequently, the wheelchair provided to [him] was too small, uncomfortable, and . . . in need of several modifications to properly roll.” Compl., ¶ 66. Like Mr. Rogers’s claims, these claims regarding the perceived inadequacies of the plaintiffs’ wheelchairs fail because they do not constitute “extreme deprivations,” De’Lonta, 330 F.3d at 633–34, that “den[ied] [plaintiffs] the minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 832. Similarly, Mr. Jardina’s allegation that, while working in the Dorsey Run library, he had to “push himself outside for hundreds of yards back to his housing unit” to use the bathroom, Compl., ¶ 65, fails to state a viable Eighth Amendment claim, because “[c]ourts have generally found . . . . that a temporary deprivation of bathroom facilities does not rise to the level of an Eighth Amendment violation.” McGee v. Pallito, No. 1:10-CV-11, 2011
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WL 6291954, at *6 (D. Vt. Aug. 3, 2011) (citing cases), report and recommendation adopted, No. 1:10-CV-11-JGM-JMC, 2011 WL 6294202 (D. Vt. Dec. 15, 2011). Cf. Shariff, 655 F.Supp.2d at 298–300 (wheelchair-bound inmates who alleged that they had urinated and defecated on themselves several times per week as a result of lack of access to bathroom facilities stated viable Eighth Amendment claim).
Also lacking in merit are plaintiffs’ claims that defendants violated the Eighth Amendment by failing to repair “cracks and uneven pavement” on the walkway at WCI, which allegedly caused Mr. Jardina to fall from his wheelchair, Compl., ¶ 67, or by failing to ensure that the “walking track” and “weight pit” at Dorsey Run were fully accessible to inmates in wheelchairs. Compl., ¶ 64. “[T]he existence of potholes, broken concrete, guardhouses or other conditions that create accessibility issues . . . does not constitute a violation of the Eighth Amendment.” Shariff, 655 F.Supp. at 300. Again, plaintiffs have failed to plausibly allege that these conditions “deprived [them] of minimal civilized necessities,” Williams v. Branker, 462 F. App’x 348, 353 (4th Cir. 2012), or rose to the level of a “condition posing a substantial risk of serious harm to [their] health or safety.” Farmer, 511 U.S. at 834. Moreover, plaintiffs’ do not have an Eighth Amendment right to a “pusher” to “assist [them] in navigating around” the prison facilities, Compl., ¶ 74, and thus plaintiffs’ complaints that they were not provided pushers or that the pushers that were provided were improperly trained, Compl.,¶ 67, fail to state plausible claims that they have been exposed to “objectively intolerable risk[s]” as required to state an Eighth Amendment claim. Farmer, 511 U.S. at 846.
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3. Plaintiffs Have Failed to Plausibly Allege That Any Defendant Was Deliberately Indifferent to any Risk of Serious Harm to Any Plaintiff.
Plaintiffs’ allegations also fail to meet the subjective component of the Eighth
Amendment test, which requires not only “[a]ctual knowledge or awareness on the part of”
the defendant to the substantial and excessive risk of harm to the prisoner, Brice v. Virginia
Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995), but also a showing that the official acted
with “deliberate indifference.” Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014).
Plaintiffs allege no facts plausibly demonstrating that defendants had “actual knowledge” of
any risk of harm to plaintiffs. As noted previously, the individual defendants are barely
mentioned in the complaint, and the complaint is thus devoid of any facts demonstrating that
a defendant was aware of a serious risk of harm to any plaintiff. Plaintiffs’ Eighth
Amendment claims thus contain no more than the very type of “un-adorned, the-defendant[s]-
unlawfully-harmed-me accusation[s],” without any “factual enhancement,” that the Court
cautioned against in Twombly and Iqbal. See Iqbal, 556 U.S. at 677. Because plaintiffs have
failed to provide “factual content that allows the court to draw the reasonable inference that
the defendant[s] [are] liable” under the Eighth Amendment, id. at 678, the Court should dismiss Count III of the complaint.2
2 To the extent plaintiffs’ § 1983 claims for damages are brought against the defendants in their official capacities, they fail for the additional reason that “neither a State nor its officials acting in their official capacities are ‘persons’ who are subject to suit for money damages under Section 1983.” Brown v. Dep’t of Pub. Safety & Corr. Servs., 383 F. Supp. 3d 519, 538 (D. Md. 2019) (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989)). See also Graham v. Cox, ELH-18-221, 2019 WL 1427860, at *10 (D. Md. March 29, 2019) (“[Section] 1983 claims are not cognizable against states, state agencies, or state agents acting in their official capacities.”). Plaintiffs’ official capacity claims are also barred by the Eleventh Amendment to the United States Constitution. See Pennhurst State
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C. Plaintiffs Have Failed to Allege a Plausible Claim of a Denial of Due Process Under the Fourteenth Amendment.
Plaintiffs have failed to state a claim against the defendants in Count IV of the complaint of a “[c]constitutional [d]enial of Due Process in [f]ailing to [t]rain and/or [s]upervise.” In that count, plaintiffs allege that defendants “failed to properly train and supervise [Department] staff with respect to reasonable accommodations for disabled prisoners, the legal requirements for physical and auxiliary accommodations for such disabled prisoners, and properly responding to disabled prisoners’ complaints about the inadequacy, or like here, the complete absence of such accommodations.” Compl., ¶ 183. Plaintiffs also allege that defendants were deliberately indifferent in failing to provide the “requisite training and supervision to [Department] staff, or the requisite protection and assistance to the Plaintiffs.” Compl., ¶ 184.
Plaintiffs’ due process claim fails because they have failed to plausibly allege that Department “staff,” none of whom are identified, committed any constitutional violation that could be the basis for a failure to train claim. In the Fourth Circuit, “[t]he law is quite clear . . . that a section 1983 failure-to-train claim cannot be maintained against a governmental employer in a case where there is no underlying constitutional violation by
Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984). Section 1983 does not abrogate state immunity, see Quern v. Jordan, 440 U.S. 332, 345 (1979) and the State of Maryland has not waived its immunity from private suits in federal court. See Md. Code Ann., State Gov’t § 12-103(2). Nor does the defendants’ removal of this case constitute a waiver of sovereign immunity from suit under § 1983. See Stewart v. North Carolina, 393 F.3d 484, 490 (4th Cir. 2005) (removal does not waive immunity where state has not consented to suit in its own courts for claim).
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the employee.” Young v. City of Mount Ranier, 238 F.3d 567 (4th Cir. 2001). Such a claim against a supervisor is “actionable under section 1983 only where . . . the failure to train [the subordinates] in a relevant respect evidences . . . deliberate indifference” to constitutionally protected rights. Jordan v. Jackson, 15 F.3d 333, 341 (4th Cir. 1994) (citations omitted). And, in the context of a failure to train claim, a supervisor can be said to be “deliberately indifferent” only if, “in light of the duties assigned to specific officers or employees, the need for more or different training is . . . obvious,” and “likely to result in the violation of constitutional rights.” Id.
The requirement that a plaintiff demonstrate indifference on a supervisor’s part rests on the principle that the liability of supervisory officials “is not based on ordinary principles of respondeat superior, but rather 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)). It follows that “[m]ere negligence is insufficient to impose section 1983 liability” on a supervisor for an alleged failure to train. Jordan, 15 F.3d at 341.
Plaintiffs have not met any of these requirements. As demonstrated above, plaintiffs have failed to plausibly allege the commission of any constitutional violation by any defendant or any subordinate of any defendant. Nor have plaintiffs plausibly alleged that any defendant was aware of such alleged violations and exhibited deliberate indifference to any plaintiffs’ constitutional rights. Accordingly, this Court should dismiss Count IV of the complaint.
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D. Plaintiffs Have Failed to Allege a Plausible Claim of a Denial of Access to the Courts.
Plaintiffs have also failed to allege facts demonstrating that they have been denied their constitutional right of access to the courts. Plaintiffs allege that defendants “have failed to establish minimum mandatory standards for administrative complaints and grievances as required by Md. Code, Corr. Servs. § 8-103, and Md. Code Regs. 12.14. 04.05, violating Plaintiffs’ Fourteenth Amendment rights to access the courts.” Compl., ¶ 8. These allegations fail to state plausible claims for relief. In Bounds v. Smith, 430 U.S. 817, 825 (1977), the Court held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” The Constitution “does not guarantee inmates the wherewithal to transform themselves into litigating engines,” but rather gives them the “tools . . . to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.” Lewis v. Casey, 518 U.S. 343, 355 (1996).
For Maryland prisoners, access to courts is established by “the array of services provided by the Office of the Public Defender and the Prisoner Assistance Program of the Legal Aid Bureau,” see Savko v. Rollins, 749 F. Supp. 1403, 1408 (D. Md. 1990), which has been succeeded by the Prisoner Rights Information System of Maryland (“PRISM”), and by the law libraries and the Library Assistance to State Inmates (“LASI”) program. See Pevia v. Commissioner of Corr., No. CV ELH-17-0273, 2018 WL 4052244, at *12 n.10 (D. Md. Aug. 24, 2018) (“This [C]ourt has found that the combination of services provided to [DOC] prisoners through private contract with outside agencies such as . . . .
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PRISM, the Office of the Public Defender, and LASI, is sufficient to ensure their right of access to the courts.”). Nowhere in the complaint do plaintiffs even allege that they are unable to access the assistance provided by the Office of the Public Defender, Legal Aid Bureau, PRISM, or LASI, or that such assistance is in any way inadequate.
Similarly, there is no “fundamental” right to an institutional inmate complaint resolution process, see Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994), and alleged defects in an inmate grievance system do not violate the Constitution. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1995) (prisoner’s allegation that jail grievance procedures were inadequate to redress his grievances did not state claim for violation of due process). See also Booker v. South Carolina Dep’t of Corr., 855 F.3d 533, 541 (4th Cir. 2017) (“[I]inmates have no constitutional entitlement or due process interest in access to a grievance procedure.”). In any event, the allegations of the complaint demonstrate that the plaintiffs have access to, and availed themselves of, the administrative remedy process. Plaintiffs Jardina (Compl., ¶¶ 60-61, 68), Coleman (Compl., ¶¶ 77, 78) Berry (Compl. ¶ 82) and Fishback (Compl. ¶ 94) all acknowledge that they filed grievances with prison officials to which they received responses. The fact that they were not satisfied with those responses does not mean that the administrative remedy process was unavailable to them. Thus, when viewed under the proper legal standard for assessing a prisoner’s access to courts claim, plaintiffs’ allegations of denial of access to courts do not pass the plausibility test.
Just as importantly, plaintiffs have failed to plausibly allege facts satisfying the second component of a denial of access to courts claim: “actual injury.” See Lewis, 518
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U.S. at 352-54. To prevail under this component, a prisoner must demonstrate that the actions of prison officials “hindered his efforts to pursue” a constitutionally protected legal claim. Id. at 351. Absent a showing of such actual injury caused by the conduct of prison officials, such as the dismissal of an action filed by the prisoner, there is no constitutional violation. Id.; see also Strickler, 989 F.2d at 1385 (“‘A demonstration of inability to present a legal claim is an essential ingredient . . . because the prisoner must be able to show that the rules interfered with his entitlement (access to the courts) rather than with a mere instrument for vindicating an entitlement (access to books).” (quoting DeMallory v. Cullen, 855 F.2d 442, 452 (7th Cir.1988) (Easterbrook, J., dissenting))).
Plaintiffs have failed to allege any constitutional injury arising from their purported lack of access to courts. Accordingly, this Court should dismiss plaintiffs’ access to courts claim.
E. Defendants Are Entitled to Qualified Immunity from Plaintiffs’ Federal Constitutional Claims.
Defendants are entitled to qualified immunity from plaintiffs’ claims under the First, Eighth, and Fourteenth, amendments. 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) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Typically, “[d]etermining whether qualified immunity is appropriate is a two-step inquiry.” Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016) (citing Pearson, 555 U.S. at 232)). “First, a court must decide whether the facts that a plaintiff has shown make
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out a violation of a constitutional right.” Id. “Second, the court must consider whether the right at issue was ‘clearly established’ at the time of the alleged misconduct.” Id. Judges are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
Ultimately, the lodestar for whether a right was clearly established is whether the law “gave the officials ‘fair warning’ that their conduct was unconstitutional.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 313 (4th Cir. 2006) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). The contours of the constitutional right “must be sufficiently clear that a reasonable official would understand what he is doing violates that right.” Hope, 536 U.S. at 753 (quotation omitted). Although “‘[c]learly established’ does not mean that ‘the very action in question has previously been held unlawful’ . . . it does require that, ‘in the light of pre-existing law the unlawfulness [of the official’s conduct] must be apparent.’” Owens v. Lott, 372 F.3d 267, 278 (4th Cir. 2004) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)) (brackets in original); see also Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (finding that “clearly established” does not “require a case directly on point . . . but existing precedent must have placed the statutory or constitutional question beyond debate.”).
“[W]hether a particular complaint sufficiently alleges a clearly established violation of law cannot be decided in isolation from the facts pleaded,” because “the sufficiency of [plaintiff’s] pleadings is both inextricably intertwined with and directly implicated by the qualified immunity defense.” Iqbal, 556 U.S. at 671. And, in assessing the merits of the
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qualified immunity defense, the threshold inquiry––whether the plaintiff has alleged a constitutional violation––is especially appropriate where “discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all.” Pearson, 555 U.S. at 236. See also Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011) (dismissal of a complaint based on qualified immunity is appropriate when “the face of the complaint clearly reveals” that the defense is “meritorious”) (citations omitted).
Defendants are entitled to qualified immunity under both prongs of the qualified immunity standard. First, as demonstrated above, plaintiffs have failed to allege facts plausibly demonstrating that any right of plaintiffs protected by the Eighth or Fourteenth Amendment is implicated in this case. Plaintiffs have also failed to allege personal conduct by any defendant in alleged constitutional violations. Thus, the facts pleaded by plaintiffs “do not make out a constitutional violation at all” against the defendants. Pearson, 555 U.S. at 236.
Even if plaintiffs had stated a plausible claim that the defendants violated a constitutional right, defendants would still be entitled to qualified immunity because “the right’s contours were [not] sufficiently definite that any reasonable official in [the defendants’] shoes would have understood that [they were] violating it.” City & County of San Francisco, Cal. v. Sheehan, 135 S. Ct. 1765, 1774 (2015). As demonstrated above, plaintiffs’ Eighth, and Fourteenth Amendment claims are devoid of any “controlling authority,” al-Kidd, 563 U.S. at 742, that adopts plaintiffs’ expansive theories of a prisoner’s constitutional right to due process, access to the courts, or to be free from
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unreasonable risk of harm. Nor do plaintiffs cite a “consensus of cases of persuasive authority” that has “placed the . . . constitutional question[s] beyond debate.” Id. at 741-2. Accordingly, defendants are entitled to qualified immunity. II. PLAINTIFFS’ ADA CLAIM IS BARRED BY SOVEREIGN IMMUNITY.
Plaintiffs’ claims brought under Title II of the ADA should be dismissed because the sovereign immunity bars those claims against the Department. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989).3 In United States v. Georgia, 546 U.S. 151, 159 (2006), the Supreme Court held that the ADA abrogates state sovereign immunity for conduct that also violates the Fourteenth Amendment to the United States Constitution. The Supreme Court has not, however, held that state sovereign immunity is abrogated for conduct that does not rise to the constitutional level. See id.; see also Spencer v. Earley, 278 F. App’x 254, 257-58 (4th Cir. 2008). Indeed, the Fourth Circuit has upheld the dismissal of an ADA claim on the basis of state sovereign immunity where the conduct did not violate the Fourteenth Amendment. Barnes v. Young, 565 F. App’x 272, 273 (4th Cir. 2014). Because plaintiffs have not stated a Fourteenth Amendment claim, as argued above
3 Sovereign immunity also bars plaintiffs’ ADA claims against the individual defendants in their official capacities because “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, 491 U.S. at 71 (internal citations omitted). To the extent that plaintiffs attempt to sue the defendants in their individual capacities their attempt fails because Title II of the ADA does not permit individual capacity suits against a state official. Barnes v. Young, 565 F. App’x 272, 273 (4th Cir. 2014). Thus, although plaintiffs assert their ADA claims against the individual defendants in addition to the Department, they should be construed as asserted only against the Department.
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in § I, the State is immune from suit for the purported ADA violations alleged in the
complaint. Accordingly, plaintiffs’ ADA claims should be dismissed.4
III. PLAINTIFFS HAVE FAILED TO STATE ANY PLAUSIBLE CLAIMS FOR RELIEF UNDER § 504 OF THE REHABILITATION ACT. To state a claim under § 504 of the Rehab Act, plaintiffs must sufficiently plead that
they (1) are qualified individuals with a disability; (2) were denied the benefits of a program
or service of a public entity that receives federal funds; and (3) were denied such benefits
“due to discrimination solely on account of the disability.” 5 Koenig v. Maryland, No.
Civ.A. CCB-09-3488, 2010 WL 148706, at *1 (D. Md. Jan. 13, 2010), aff’d, 382 F. App’x
273 (4th Cir. 2010); 29 U.S.C. § 794(a). By contrast, under the ADA, a plaintiff may state
a claim for relief by showing that he or she was subjected to discrimination or “excluded
from participation in or . . . denied the benefits of the services, programs, or activities of a
public entity . . . by reason of [a] disability.” 42 U.S.C. § 12132. By adding the word
“solely” to the ADA’s requirement for a plaintiff to show discrimination by reason of the
4 Defendants did not waive their immunity from plaintiffs’ ADA claim by removing this case to federal court. As noted earlier, removal does not waive those defenses that would be available to a party in state court. See Stewart, 393 F.3d at 489-90. Because the State of Maryland has not consented to suits under the ADA in its own courts, removal did not effect a waiver of immunity from suit under the ADA. See Ramos v. Berkeley County, C.A. No. 2:11-3379-SB-BM, 2012 WL 5292899, at *3 (D.S.C. Aug. 7, 2012) (removal of case did not waive State’s Eleventh Amendment immunity from suit on ADA claim); Means v. S.C. Dep't of Soc. Servs., No. CV 6:15-4104-HMH-KFM, 2017 WL 2189699, at *5 (D.S.C. Apr. 27, 2017) (same), report and recommendation adopted, No. CV 6:154104-HMH-KFM, 2017 WL 2155431 (D.S.C. May 17, 2017).
5 Defendants acknowledge that the Department is a public entity that receives federal funds and thus do not contest the applicability of the Rehab Act to the Department for the purposes of the instant motion. See Huber v. Howard County, Md., 849 F. Supp. 407, 415 (D. Md. 1994), aff'd, 56 F.3d 61 (4th Cir. 1995).
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disability, the Rehab Act imposes a stronger causation standard between the disability and the purported discrimination than the ADA. Jarboe v. Maryland Dep’t of Pub. Safety & Corr. Servs., No. Civ.A. ELH-12-572, 2013 WL 1010357, at *3 (D. Md. Mar. 13, 2013).
Plaintiffs’ Rehab Act claims fail because plaintiffs fail to plead with sufficiency that they were denied benefits of a service, program, or activity solely by reason of a disability. Plaintiffs allege that the defendants violated the Rehab Act by “fail[ing] to equally extend [the Department’s] vocational training and work release programs to Plaintiffs, causing Plaintiffs to los[e] the opportunity to work and earn money while incarcerated.” Compl., ¶ 162. Plaintiffs also allege that defendants “discriminate against Plaintiffs because of their disabilities or perceived disabilities when they relegate them to jobs that provide lower pay and fewer diminution credits based on stereotypes about their abilities as disabled individuals,” by “failing to provide them with the necessary medical care and devices that they require, and by refusing to properly house Plaintiffs in accommodations that are specifically designed and equipped for disabled individuals.” Compl. ¶ 163.
There are three distinct grounds upon which relief may be pursued under § 504 of the Rehab Act: “(1) intentional discrimination or disparate treatment; (2) disparate impact; and (3) failure to make reasonable accommodations.” A Helping Hand, LLC v. Baltimore County, Md., 515 F.3d 356, 362 (4th Cir. 2008). Plaintiffs do not specify which theory they base their claims upon, but rather conflate allegations of intentional discrimination with a purported failure to make reasonable accommodations. Under either theory, punitive damages may not be awarded, and plaintiffs must show intentional discrimination or
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disparate treatment by the defendants to be awarded compensatory damages. Paulone v. City of Frederick, 787 F. Supp. 2d 360, 373 (D. Md. 2011).
The allegations in the complaint demonstrate that plaintiffs cannot make either showing. First, many of the plaintiffs’ claims concern the alleged denial of medical care. An allegation of a denial of medical care, however, does not state a claim under the disability rights statutes. See Davidson v. Wexford's Health Sources Inc., No. CIV.A. WDQ-13-2583, 2014 WL 2768586, at *13 (D. Md. June 16, 2014) (noting that, “[a]lthough the Fourth Circuit has not addressed this issue in a published opinion, unpublished cases from this circuit and opinions from other circuits indicate that a prisoner may not state a claim under the ADA for a lack of medical treatment.”) (citing Miller v. Hinton, 288 Fed. App’x 901, 902 (4th Cir. 2008) (alleged denial of access to colostomy bags and catheters to paraplegic inmate did not constitute disability discrimination where plaintiff failed to show that he was treated differently because of his disability): Spencer v. Easter, 109 Fed. App’x 571, 573 (4th Cir. 2004) (alleged failure to obtain prisoner’s prescription medication in a timely manner was not an ADA violation because there was no showing of discriminatory intent based on prisoner’s disability); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (holding that the ADA is not “violated by a prison’s simply failing to attend to the medical needs of its disabled prisoners”).
Plaintiffs devote a significant amount of attention to the allegation that the Department “failed to reinstate [Mr. Rogers’s] health insurance upon release.” Compl., ¶ 48-56. Specifically, Plaintiffs complain that the Department “cancelled Mr. Rogers’s Medicare medical coverage upon his commitment because [it] has a policy of enrolling
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prisoners in the state Medicaid program.” Compl., ¶ 48. Plaintiffs’ further complain that “[u]pon Mr. Rogers’ release, however, [the Department] failed to ensure that his Medicare medical coverage was reinstated.” Id. These allegations pertaining to Mr. Rogers’ Medicare eligibility, even if true, do not support a Rehab Act claim because there is no factual allegation that the actions complained of were taken because of Mr. Rogers’s disability, or were related to his disability in any way.6
Nor have plaintiffs stated plausible claims under the Rehab Act by alleging that they have been denied access to work and educational programs that offer higher pay or more diminution credits. In order to maintain such a claim, plaintiffs must sufficiently plead that they are qualified for the benefit in question, i.e., a specific program, and that they were excluded “due to discrimination solely on the basis of the disability.” Doe v. University of Md. Med. Sys. Corp., 50 F.3d at 1265. Plaintiffs have not met their pleading burden. They have failed to identify what programs they applied for, how they are qualified for such programs, or at minimum, how they would be qualified with reasonable accommodations. They have failed to identify the specific bases for each of their denials or exclusions from programs. They have also failed to plead any facts to show that they were excluded from such programs “solely on the basis” of their disabilities, Doe, 50 F.3d at 1265. For example, Mr. Coleman acknowledges that he was provided a job at Dorsey Run in April 2019. Compl., ¶ 78. Although he complains that he was medically cleared for work in January
6 Nor would these allegations support Mr. Rogers’s constitutional claims. Failing to aid a released inmate in enrolling in Medicare does not constitute cruel and unusual punishment under the Eighth Amendment. Likewise, there is no reasonable connection between Mr. Rogers’s Medicare enrollment and the denial of due process claim.
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2019, he alleges no facts indicating that the reason for the brief delay in placing him in the job was due to a disability. Mr. Jardina acknowledges that he was provided a job in the Dorsey Run library. Compl., ¶ 65. Mr. Young, who is asthmatic, alleges that he was “classified as being eligible for outside work detail and work release programs,” and that the “[Department] and its agents performed the requisite medical clearance evaluation to authorize Mr. Young’s inclusion in these programs and confirmed, inter alia, that Mr. Young could lift more than fifty pounds,” Compl. 103, 104, but he does not allege that he received the medical clearance necessary to participate in these programs. Thus, he has failed to plausibly allege that he was qualified for the position. Similarly, Mr. Rogers and Mr. Berry baldly allege they have been denied prison jobs, Compl., ¶¶ 46, 85, but allege no facts plausibly indicating that they were denied the opportunity to work in prison because of their disabilities. Accordingly, these plaintiffs have failed to plead a plausible claim that they were denied access to a program for which they were qualified on the basis of their disabilities.
Mr. Fishback has also failed to allege a plausible Rehab Act claim. He alleges that, in addition to suffering from bipolar disorder, he has a “chronic pain condition in his left shoulder” for which he has been prescribed Tramadol, a pain medication. Compl., ¶ 86. He states that, in May 2019, “DPSCS granted [him] parole in December 2019, provided that he met certain conditions,” which he does not describe, id. at ¶ 88, and reduced his security level to pre-release, id. at ¶ 90, but “denied [him] any opportunity to engage in [home detention housing] or work release programming” because of his “Tramadol prescription.” Compl., ¶ 94. He alleges that thereafter, he discontinued using Tramadol,
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resulting in painful withdrawal symptoms “as he tapered off of his Tramadol.” Thereafter, “[u]pon learning that work release would never be made available to him even though he is eligible for same, Mr. Fishback resumed his Tramadol prescription.” Id. at ¶ 94. He alleges that because he is unable to work, he “cannot earn the money he needs to pay for his transitional housing [upon release] and risks being unable to satisfy the terms of his release.” Compl., ¶ 102.
Mr. Fishback’s Rehab Act claim fails because he has not plausibly pled that his purported inaccess to work release was based solely upon his disability. Indeed, the complaint makes clear that he had to meet numerous conditions to become eligible, but fails to set forth what those conditions were and whether he met them. See Compl. ¶ 90. Moreover, the allegations of the complaint make clear that Mr. Fishback’s disability was, in fact, not the basis for his ineligibility for work release; rather, it was his dependence upon, and use of, certain medication. Compl. ¶ 92. This fails to allege a viable claim of discrimination against an individual with Mr. Fishback’s condition. His claim that he ceased use of the medication for a limited period of time does not show that he became eligible for work release, or that the purported denial of work release amounted to discrimination. Additionally, although he alleges that he cannot earn money and satisfy the terms of his release without working, Compl. ¶ 90, he does not set forth sufficient facts to show that he was denied all work assignments or that this was even one of the terms of his release. As a result, the allegations of Mr. Fishback’s Rehab Act claim fail to meet his pleading burden.
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IV. PLAINTIFFS HAVE FAILED TO STATE ANY PLAUSIBLE CLAIMS FOR RELIEF UNDER ARTICLES 16 OR 25 OF THE MARYLAND DECLARATION OF RIGHTS BECAUSE THEY HAVE FAILED TO STATE CLAIMS UNDER THE EIGHTH AMENDMENT. “Articles 16 and 25 of the Maryland Declaration of Rights are construed in pari
materia with the Eighth Amendment.” Banks v. Broadwater, No. CIV.A. DKC 09-0589, 2011 WL 3164367, at *3 (D. Md. July 26, 2011) (citing Brooks v. State, 104 Md.App. 203, 213 n. 2 (1995)). Hence, plaintiffs’ “state constitutional claims are duplicative of [their] federal constitutional claims,” Drury v. Dziwanowski, No. CV MJG-15-3845, 2017 WL 1153890, at *6 (D. Md. Mar. 28, 2017), and “need not be considered separately from [their] federal constitutional challenge[s].” Banks, 2011 WL 3164367, at *3.
For the reasons stated in § I of this memorandum, which is incorporated by reference, plaintiffs have failed to plead plausible federal constitutional claims of denial of due process or cruel and unusual punishment. Accordingly, this Court should dismiss plaintiffs’ claims under Count V of the complaint. V. PLAINTIFF ROGERS’S CLAIM OF A NEGLIGENT BREACH OF THE ADA IS
BARRED BY SOVEREIGN IMMUNITY AND OTHERWISE FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. Count VI of the complaint, which is brought solely by Plaintiff Rogers against the Department and Warden Scruggs, arises from Mr. Rogers’s claim that on January 3, 2019, he slipped and fell in the shower at MRDCC. He alleges that the defendants “owed a duty to Mr. Rogers arising out of their special relationship with him to protect him against unreasonable risk of physical harm.” Compl., ¶ 192. He further alleges that the Department and Warden Scruggs “knew that MRDCC was not ADA-compliant because it did not have handicapped showers, handrails, anti-slip guards, or shower chairs for disabled prisoners,
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like Mr. Rogers,” Compl., ¶ 193, and breached their duty to protect Mr. Rogers from harm by “ignoring MRDCC’s ADA noncompliance,” which “caused Mr. Rogers to sustain several tears in his right shoulder, and other physical injuries.” Compl., ¶ 194.
The legal basis of the claim asserted by Mr. Rogers in Count VI of the complaint is not clear. Although the count is captioned as a claim of “negligence,” the allegations of the count suggest Mr. Rogers seeks to hold defendants liable for a purported breach of the ADA. To the extent he attempts to do so, as demonstrated in § II of this memorandum, incorporated herein by reference, sovereign immunity bars his ADA claim against the defendants. Accordingly, this Court should dismiss count VI of the complaint.
To the extent that Mr. Rogers attempts to assert a state law claim under Count VI, the claim is still subject to dismissal. As noted, plaintiff suggests that defendants breached a duty created by a “special relationship” that obligated defendants to “protect [him] against unreasonable risk of physical harm.” Compl., ¶ 192. He has failed to identify the legal basis for any such relationship that would give rise to a claim for “negligence” as alleged in Count VI of the complaint. Maryland courts have recognized that, under certain circumstances, the State owes a duty of reasonable care to protect prisoners from being harmed by other prisoners where the harm is reasonably foreseeable, see Lamb v. Hopkins, 303 Md. 236, 241 (1985) (adopting Restatement (Second) of Torts (1965) §§ 319 and 320); Rodriguez v. State, 218 Md.App. 573 (2014). Maryland courts have also recognized “the State’s general duty to furnish reasonable medical treatment” to inmates, State v. Johnson, 108 Md. App. 54, 69 (1996), while cautioning that the State does not owe a prisoner “an independent duty to create an individualized treatment plan for [a prisoner’s] health care,
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separate and distinct” from the State's “duty to provide reasonable health care.” Id. at 65, 69. Maryland courts have not, however, recognized a “special relationship” between the State and prisoners that gives rise to a duty in tort to refrain from allegedly violating the provisions of the ADA.
Mr. Rogers’s claim fails for the additional reason that, contrary to Maryland law, he seeks to plead it as negligence per se. In contradistinction with a regular negligence claim, Mr. Rogers purports to base this claim upon a statutory duty, i.e. the duty to comply with the provisions of the ADA. However, although many states treat the violation of a statutory duty as “negligence per se,” “Maryland is among the minority of states that treat the violation simply as evidence of negligence.” Rivers v. Hagner Mgmt. Corp., 182 Md. App. 632, 654 (2008) (citation omitted). Indeed, “[t]here is no cause of action of negligence per se under Maryland law.” Bray v. Marriott Int’l, 158 F. Supp. 3d 441, 445 (D. Md. 2016). Thus, a plaintiff must still plead, and ultimately prove, not only that there was a statutory violation, but that the violation proximately caused the plaintiff’s injury. Rivers, 182 Md. App. at 654. Rogers has failed to plead sufficient facts to make that showing here. His allegations that Defendants “knew” and “ignor[ed]” or “fail[ed] to intervene” in “MRDCC’s ADA noncompliance,” “which caused Mr. Rogers to sustain” his injuries, does nothing more than state boilerplate elements of the claim. Compl. ¶¶ 193-94. This does not suffice. Accordingly, this Court should dismiss Count VI of the complaint. VI. DEFENDANTS ARE ENTITLED TO IMMUNITY FROM PLAINTIFFS’ STATE
LAW CLAIMS. This Court should dismiss the state law claims brought against the individual defendants in Counts V and VI for the additional reason that defendants are immune from
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suit for the tortious conduct alleged in those counts. As “State personnel” sued in the performance of his public duties, the individual defendants are entitled to immunity under the Maryland Tort Claims Act (“MTCA”). See Md. Code Ann., State Gov’t § 12-101 – 110. Section 12-105 of the MTCA provides that State personnel have “immunity from liability” as provided under § 5-522(b) of the Courts and Judicial Proceedings Article. That section, in turn, provides that State personnel “are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived immunity[.]” Cts. and Jud. Proc. § 5-522(b). This statutory immunity afforded to State personnel extends not only to simple negligence claims, but also to “non-malicious intentional torts and constitutional torts.” Lee v. Cline, 384 Md. 245, 255 (2004).
Plaintiffs have failed to allege any facts indicating that the individually named Defendants acted with malice or gross negligence. The malice necessary to defeat the immunity of State personnel is “actual malice” – that is, conduct “motivated by ill will, by an improper motive, or by an affirmative intent to injure.” Shoemaker v. Smith, 353 Md. 143, 157 (1999). To establish actual malice, a plaintiff must demonstrate that individual state personnel “intentionally performed an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff.” Thacker v. City of Hyattsville, 135 Md. 268, 300 (2000). A plaintiff may not rely on mere general allegations of malice; on the contrary, “[t]o overcome a motion raising governmental immunity, the plaintiff must allege with some clarity and
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precision those facts which make the act malicious.” Manders v. Brown, 101 Md. App. 191, 216 (1994).
A plaintiff faces a similarly high burden in establishing a gross negligence claim, as gross negligence is “an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them.” Barbre v. Pope, 402 Md. 157, 188 (2007) (citing Liscombe v. Potomac Edison Co., 303 Md. 619, 635 (1985)). Put another way, “a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.” Id.
There are no allegations in the complaint that the individually named defendants acted with malice, and a review of Maryland law makes clear that plaintiffs have failed to allege plausibly that the individually named Defendants acted with gross negligence. See, e.g., Boyer v. State, 323 Md. 558, 579 (1991) (allegations failed to state a claim of gross negligence against state trooper for pursuing suspected drunk driver “at an excessively high rate of speed through a heavy traffic area” and failing to “activate immediately all of the emergency equipment on his police car” while attempting to apprehend the drunk driver, who crashed into the back of another vehicle and killed two passengers); Wells v. State, 100 Md. App. 693, 706 (1994) (holding, in case arising from alleged failure of state social services officials to prevent “repeated infliction of abuse” of child by child’s mother and her boyfriend, that allegations “suggest[ed] individual negligence and bureaucratic mismanagement and incompetence,” and a “critically important governmental unit not
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properly doing its job because of underfunding, understaffing, lack of effective leadership
and supervision, lack of training, and lack of clear procedures and protocols,” but that
Plaintiff failed to state a claim for gross negligence). Accordingly, the defendants are
entitled to immunity from plaintiffs’ state law claims.
CONCLUSION
The motion to dismiss should be granted, and plaintiffs’ complaint should be
dismissed.
Respectfully submitted,
BRIAN E. FROSH Attorney General of Maryland
/s/ ____________________________ MICHAEL O. DOYLE Fed. Bar ID 11291 Assistant Attorney General Department of Public Safety and Correctional Services 300 E. Joppa Road, Suite 1000 Baltimore, Maryland 21286 Tel.: 410-339-7567 e-mail: michaelo.doyle@maryland.gov
/s/ ____________________________ LISA O. ARNQUIST Fed. Bar ID 25338 Assistant Attorney General Department of Public Safety and Correctional Services 300 E. Joppa Road, Suite 1000 Baltimore, Maryland 21286 Tel.: 410-339-7568 e-mail: lisa.arnquist@maryland.gov
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 Case 1:19-cv-03090-JKB Document 26 Filed 01/21/20 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KARL ROGERS, et al.,

*

Plaintiffs

*

v.

*

DEPARTMENT OF PUBLIC

SAFETY AND CORRECTIONAL SERVICES, et

*

al.,

CIVIL NO. JKB-19-3090

Defendants

*

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

MEMORANDUM

Plaintiff James Jardina filed a motion to consolidate this case with Jardina v. Department

ofPublic Safety and Correctional Services, et al., Civ. No. JKB-16-1255 ("Jardina"). Defendants

in Jardina, Warden Richard J. Graham, Jr., and former Assistant Warden Denise Gelsinger

(collectively, "Jardina Defendants"), opposed this motion, and the matter is fully briefed. No

hearing is required. See Local Rule 105.6 (D. Md. 2018). For the reasons set forth below, this Court entered an order granting Plaintiffs motion to consolidate. (ECF No. 137.)1

I. Factual and Procedural Background

The procedural history and facts are set forth in the Court's prior Memorandum Opinions

(ECF Nos. 51, 93, 104) and are incorporated by reference and repeated as necessary to provide

context and to resolve the pending motion.

Plaintifffiled his complaint inJardina onApril27, 2016. (ECFNo. 1.) On March 3, 2017,

the Court granted the then-defendants' Motion to Dismiss or, in the Alternative, for Summary

1 Unless otherwise specified, ECF citations refer to the Jardina docket. 1

Case 1:19-cv-03090-JKB Document 26 Filed 01/21/20 Page 2 of 7
Judgment. (ECF No. 52.) Plaintiff appealed this ruling to the United States Court of Appeals for the Fourth Circuit. (ECF No. 53.) On August 23, 2017, the Fourth Circuit dismissed the appeal and remanded the case for Plaintiff to file an amended complaint, stating that because this Court had identified a deficiency that Plaintiff may remedy by filing an amended complaint, the order Plaintiff was appealing was neither a final order nor an appealable interlocutory collateral order. Jardina v. Dep't ofPub. Safety & Corr. Servs., et al., 696 F. App'x 130, 131-32 (4th Cir. 2017) (per curiam) (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 623-24 (4th Cir. 2015)). '
Plaintiff filed an Amended Complaint on December 27, 2017. (ECF No. 65.) In the Amended Complaint, Plaintiff asserted claims against several individuals, including Graham and Gelsinger. (ld.) The Court later granted Plaintiffs Motion to Withdraw his claims against the other defendants, leaving Graham and Gelsinger as the only remaining defendants. (ECF No. 79.)
After Plaintiff filed the Amended Complaint, Defendants filed a Motion to Dismiss, or in the Alternative, for Summary Judgment. (ECF No. 80.) On December 18, 2018, the Court granted in part and denied in part Defendants' Motion for Summary Judgment, with leave to renew the Motion for Summary Judgment. (ECF No. 94.) Defendants filed a Motion to Renew Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment on February 13, 2019. (ECF No. 98.) This Court granted in part and denied in part that motion. (ECF No. 105.)
As a result of the Court's decisions, the remaining claims inJardina concern three alleged failures to accommodate Plaintiff's disability while he was an inmate at Western Correction Institute ("WCI") in violation of Title II of the ADA, 42 U.S.C. § 12131, et seq. (ECF No. 104.) First, Plaintiff alleges that he was denied the opportunity to take a shower like other non-disabled inmates because he had to wait for custody staff to escort him to the handicap shower. (ECF Nos.
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65 at 2; 85-1 ~ 6.) Second, Plaintiff alleges that he was denied access to a walker while he was on administrative segregation. (ECF Nos. 65 at 3; 102 at 9.) Third, Plaintiff claims he was not provided meaningful access to prison programs, benefits, and services. (ECF No. 65 at 3.)
On July 31, 2019, counsel for both parties requested referral to a magistrate judge for a settlement conference prior to the start ofdiscovery. (ECF No. 119.) A settlement conference was set for October 24, 2019 in front of Judge Coulson. (ECF No. 122.)
On August 30, 2019, Plaintiff and five other individuals ("Rogers Plaintiffs") filed an action in the Circuit Court for Baltimore City alleging systemic violations of disabled prisoners' rights ("Rogers"). (ECF No. 132, Ex. A.) Graham is listed as a defendant inthat case, as are seven other individuals and the Maryland Department of Public Safety and Correctional Services. (/d. at 1-2.) Gelsinger is not listed as a defendant. In Rogers, Plaintiff alleges that "WCI is almost entirely inaccessible to a wheelchair-bound individual." (!d.~ 58.) His specific allegations include claims that he lacked privacy while showering in the handicapped shower stall and was denied access to prison programs as a result of his disability. (/d. ~~ 62, 64.)
On October 1, 2019, the Jardina Defendants asked this Court to stay Jardina pending the conclusion of Rogers. (ECF No. 123.) On October 3, 2019, the Jardina Defendants asked Judge Coulson to cancel the scheduled settlement conference because their counsel no longer had settlement authority in light of Rogers. (ECF No. 124.) The settlement conference was subsequently cancelled (ECF No. 126), and this Court entered an order staying the case for 90 days (ECF No. 129.)
On October 23, 2019, Rogers was removed to this court and the case was assigned to Judge Hollander. On January 14, 2020, Judge Hollander transferred Rogers to the undersigned in light of the "overlapping factual and legal issues" with Jardina. (Rogers ECF No. 22.)
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II. Standardfor Consolidation Federal Rule of Civil Procedure 42(a) permits, but does not mandate, consolidation of cases
that involve a common question of law or fact. "[C]onsolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another." Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933); Intown Props. Mgmt., Inc. v. Wheaton Van Lines, Inc., 271 F.3d 164, 168 (4th Cir. 2001 ). If a common question oflaw or fact exists, then the district court must "weigh the saving of time and effort that consolidation under Rule 42(a) would produce against any inconvenience, delay, or expense that it would cause for the litigants and the trial judge." 9A C. Wright & A. Miller, Federal Practice & Procedure§ 2383 (3d ed.). As the Fourth Circuit has explained:
The critical question for the district court in the final analysis was whether the specific risks of prejudice and possible confusion were overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives. Arnoldv. Eastern Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982), on reh'g, 712 F.2d 899 (4th Cir. 1983). Ultimately, the decision whether to consolidate two cases lies within the "broad discretion" of the district court. AIS J. Ludwig Mowinckles Rederi v. Tidewater Constr. Co., 559 F.2d 928, 933 (4th Cir. 1977).
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IlL Analysis The threshold consideration in deciding if cases should be consolidated is whether different
cases present a common question of either fact or law. Fed. R. Civ. P. 42(a). Both parties agree that the claims at issue in Jardina with respect to Graham are encompassed by the claims alleged in Rodgers. (ECF Nos. 123, 132.) In the Jardina Defendants' Motion to Stay, they explained that Rodgers includes "numerous allegations which are identical to the allegations in [Jardina]." (ECF No. 123 at 2.) In their letter to Judge Coulson requesting cancellation ofthe settlement conference, the Jardina Defendants explained that Plaintiffs claims in Rogers "allegeD all of the same ADA violations encapsulated within ... this current action." (ECF No. 124.) Because there are common questions of fact and law in these two cases, consolidation would eliminate the risk ofinconsistent adjudication. Having established that there is no dispute between the parties regarding whether the claims at issue in both cases overlap, the Court turns to the Jardina Defendants' arguments against consolidation.
First, the Jardina Defendants argue that consolidation of Jardina with Rodgers would cause considerable delays for the Jardina Defendants because Rodgers is only in the beginning stages oflitigation, while Jardina has been pending for over three years. (ECF No. 133 at 3.) As a preliminary matter, the Jardina Defendants previously requested that this Court stay the entire Jardina proceeding until after the conclusion of Rogers. (ECF No. 123 at 2.) The Jardina Defendants offer no explanation for why they now oppose any potential delay which could occur as a result of consolidation. Even accepting their argument, despite the length of time in which Jardina has been pending, these cases are at much closer stages in the litigation process than their filing dates might indicate. Discovery has not taken place in either case. The parties in Rogers
\
are currently briefing on motions to dismiss (Rogers ECF No. 19), and no discovery schedule has
5

Case 1:19-cv-03090-JKB Document 26 Filed 01/21/20 Page 6 of 7
even been set in Jardina because the parties requested a settlement conference prior to the start of discovery, which the Jardina Defendants then cancelled (ECF Nos. 119, 124). Therefore, though consolidation may cause some delays to the parties in Jardina, the cases are not at such different stages that the efficiency benefits of consolidation are outweighed by potential delays.
In fact, because neither case has entered discovery, consolidation provides an opportunity for substantial time and cost savings by reducing the need for duplicitous discovery. In this way, consolidation offers the potential for "substantial savings of time and money." Campbel!"v. Bos. Sci. Corp., 882 F.3d 70,76 (4th Cir. 2018). In Campbell, the Fourth Circuit explained the benefits of consolidation:
Both plaintiffs and defendants benefit from lessened litigation costs and the reduced need for expert testimony. Witnesses benefit from reduced demands on their time by limiting the need for them to provide repetitive testimony. The community as a whole benefits from reduced demands on its resources, including reduced demand for jurors. The judicial system benefits from the freedom consolidation affords judges to conscientiously resolve other pending cases. /d. Here, because the claims against Graham in Jardina are encompassed within the claims presented in Rodgers, the same discovery materials would need to be exchanged and reviewed in each case, causing a multiplicity of efforts and an increase in costs to the parties. To the extent these claims include Gelsinger, she would likely be required to testify in Rogers as a witness even if these cases were to remain separate. In addition, if these cases were to proceed separately, this Court would be required to expend substantial time and resources managing two separate cases, when it could significantly reduce that burden by consolidating these actions.
6

Case 1:19-cv-03090-JKB Document 26 Filed 01/21/20 Page 7 of 7

The Jardina Defendants also argue that the "potential confusion resulting from multiple plaintiffs, various defendants and divergent times of the occurrences militate against consolidation." (ECF No. 133 at 3.) To the extent that the Jardina Defendants argue the additional charges and individuals will cause confusion to the jury, the Court sees no reason-and Defendants offer none-why jury instructions cannot correct for any potential confusion or prejudice. See, e.g., Campbell, 882 F.3d at 74-75 (affirming consolidation of cases where jury instructions were adequate safeguard against juror confusion or prejudice). The Jardina Defendants have failed to explain why the parties and claims at issue in Rogers are so unusually confusing or prejudicial that standard jury instructions would be insufficient to protect against prejudice and confusion. IV. Conclusion
After determining that common questions of fact and law exist and having weighed the considerations of potential delay, prejudice, and juror confusion against those of efficiency, judicial economy, and consistency, Arnold, 681 F.2d at 193, the Court finds that the balance of factors weighs in favor of consolidation. Accordingly, the Court has entered an order granting Plaintiffs motion to consolidate.

DATED this ZDday of January, 2020.

BY THE COURT:
~~.3~
James K. Bredar Chief Judge

7

 
 Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 1 of 14
CASREF,MEM,STAYED
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:16−cv−01255−JKB

Jardina v. Department of Public Safety and Correctional Services Date Filed: 04/27/2016

et al

Jury Demand: None

Assigned to: Chief Judge James K. Bredar

Nature of Suit: 550 Prisoner: Civil Rights

Referred to: Magistrate Judge J. Mark Coulson (Settlement)

Jurisdiction: Federal Question

Lead case: 1:19−cv−03090−JKB

Member case: (View Member Case)

Case in other court:

Fourth Circuit Court of Appeals, 17−06413

Cause: 42:1983pr Prisoner Civil Rights

Plaintiff

James J. Jardina

represented by Ryan S. Perlin Bekman, Marder and Adkins, LLC 300 West Pratt Street Suite 450 Baltimore, MD 21201 14105396633 Fax: 14106259554 Email: perlin@bmalawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allen Eisner Honick Whiteford, Taylor & Preston LLP Seven Saint Paul Street Baltimore, MD 21202 410−659−6420 Fax: 410−223−4179 Email: ahonick@wtplaw.com ATTORNEY TO BE NOTICED

V.
Defendant
Department of Public Safety and Correctional Services

represented by Ankush Nayar Office of the Attorney General of Maryland 1800 Washington Blvd Suite 755 Baltimore, MD 21202 14105374076 Fax: 14105767841 Email: anayar@oag.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis M. Curnutte , III Office of the Attorney General of Maryland 200 Saint Paul Place Baltimore, MD 21202 410−576−6587 Fax: 410−576−6880 Email: fcurnutte@oag.state.md.us TERMINATED: 07/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 2 of 14

Defendant Richard J. Graham, Jr. Warden (WCI)
Defendant Denise Gelsinger Asst. Warden (WCI)

Mary Catherine Crawford 200 St. Paul Place Baltimore, MD 21202 410−576−7084 Email: mcrawford@oag.state.md.us TERMINATED: 11/15/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Judith Lane Weber State of Maryland Office of the Attorney General 200 Saint Paul Pl Baltimore, MD 21202 14105766300 Fax: 14105766880 Email: slaneweber@oag.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ankush Nayar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis M. Curnutte , III (See above for address) TERMINATED: 07/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Crawford (See above for address) TERMINATED: 11/15/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Judith Lane Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ankush Nayar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis M. Curnutte , III (See above for address) TERMINATED: 07/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Crawford (See above for address) TERMINATED: 11/15/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Judith Lane Weber (See above for address)

Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 3 of 14

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
B. Ziler CO II

represented by Ankush Nayar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis M. Curnutte , III (See above for address) TERMINATED: 07/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Catherine Crawford (See above for address) TERMINATED: 11/15/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie Judith Lane Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Wexford Health Sources, Inc.

represented by Gina Marie Smith Meyers Rodbell and Rosenbaum PA 6801 Kenilworth Ave Ste 400 Riverdale, MD 20737−1385 13016995800 Fax: 13017795746 Email: gsmith@mrrlaw.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas Conrad Meister Meyers Rodbell and Rosenbaum PA 6801 Kenilworth Ave Ste 400 Riverdale, MD 20737−1385 13016995800 Fax: 13017795746 Email: dmeister@mrrlaw.net ATTORNEY TO BE NOTICED

Joseph B Chazen Meyers Rodbell and Rosenbaum PA 6801 Kenilworth Ave Ste 400 Riverdale, MD 20737−1385 13016995800 Fax: 13017795746 Email: jchazen@mrrlaw.net ATTORNEY TO BE NOTICED

Defendant
Robustiano Barrera Doctor (WCI)

represented by Gina Marie Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas Conrad Meister (See above for address)

Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 4 of 14

ATTORNEY TO BE NOTICED

Defendant
Beverly McLaughlin C.R.N.P.

represented by Gina Marie Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas Conrad Meister (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/27/2016
04/27/2016 04/27/2016 04/29/2016
05/09/2016 05/24/2016 05/27/2016
06/17/2016 06/20/2016 06/22/2016 06/22/2016 07/25/2016

# Docket Text
1 COMPLAINT against Robustiano Barrera, Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, Beverly McLaughlin, Wexford Health Sources, Inc., B. Ziller, filed by James J. Jardina. (Attachments: # 1 Exhibit List, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Envelope)(krs, Deputy Clerk) (Entered: 04/28/2016)
2 MOTION for Leave to Proceed in forma pauperis by James J. Jardina (Attachments: # 1 Resident Funds Inquiry)(krs, Deputy Clerk) (Entered: 04/28/2016)
3 MOTION for Appointment of Counsel by James J. Jardina (krs, Deputy Clerk) (Entered: 04/28/2016)
4 ORDER Directing Finance Officer at Jessup Correctional Institution − Dorsey Run Correctional Facility to file an inmate account summary information sheet and certificate within 21 days. Signed by Judge James K. Bredar on 4/29/2016. (c/m 5/2/16)(krs, Deputy Clerk) (Entered: 05/02/2016)
5 Correspondence from Plaintiff. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(krs, Deputy Clerk) (Entered: 05/10/2016)
6 NOTICE of Change of Address by James J. Jardina (krs, Deputy Clerk) (Entered: 05/25/2016)
7 ORDER DIRECTING Clerk to electronically send copy of Complaint and withhold service; DIRECTING counsel for defendants to notify court if service is accepted and to answer the Complaint ( re 1 Complaint, filed by James J. Jardina ). Attachments will be emailed to attorneys who have not entered their appearance and were sent this NEF. Attorneys should contact the court if they do not receive the attachments; Waiving the payment of the initial partial filing fee; Granting 2 Motion for Leave to Proceed in forma pauperis; Denying without prejudice 3 Motion to Appoint Counsel. Signed by Judge James K. Bredar on 5/27/2016. (c/m/em 5/27/16) (Attachments: # 1 Institutional Coordinator Letter) (krs, Deputy Clerk) (Entered: 05/27/2016)
8 NOTICE of Appearance by Ankush Nayar on behalf of Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr (Nayar, Ankush) (Entered: 06/17/2016)
9 Correspondence from Litigation Coordinator re: Accepting/Refusing Service. (krs, Deputy Clerk) (Entered: 06/21/2016)
10 NOTICE of Appearance by Joseph B Chazen on behalf of Wexford Health Sources, Inc. (Chazen, Joseph) (Entered: 06/22/2016)
11 NOTICE of Appearance by Gina Marie Smith on behalf of Wexford Health Sources, Inc. (Smith, Gina) (Entered: 06/22/2016)
12 MOTION for Extension of Time to File Answer to and including August 24, 2016 by Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, B. Ziller Responses due by 8/11/2016 (Attachments: # 1 Text of Proposed Order)(Nayar, Ankush) (Entered: 07/25/2016)

Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 5 of 14

07/27/2016 08/10/2016

13 ORDER granting 12 Motion for Extension of Time. Response due 8/24/2016. Signed by Judge James K. Bredar on 7/26/2016. (c/m 7/27/16) (kr, Deputy Clerk) (Entered: 07/27/2016)
Filing fee: $ 1.80, receipt number 14637091636 (krs, Deputy Clerk) (Entered: 08/10/2016)

08/22/2016

14 MOTION to Dismiss or, in the Alternative, Motion for Summary Judgment by Robustiano Barrera, Beverly McLaughlin, Wexford Health Sources, Inc. Responses due by 9/9/2016 (Attachments: # 1 Text of Proposed Order Order − MTD, # 2 Text of Proposed Order Order − MSJ, # 3 Supplement Memorandum of Law, # 4 Exhibit Exhibit 1, # 5 Exhibit Exhibit 2)(Smith, Gina) (Entered: 08/22/2016)

08/24/2016

15 MOTION for Extension of Time to File Answer to and including September 23, 2016 by Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, B. Ziller Responses due by 9/12/2016 (Attachments: # 1 Text of Proposed Order)(Nayar, Ankush) (Entered: 08/24/2016)

08/25/2016 08/25/2016
09/06/2016 09/06/2016

16 Rule 12/56 letter mailed to James J. Jardina. (c/m 8/25/16 bas, Deputy Clerk) (Entered: 08/25/2016)
17 ORDER Granting 15 Motion for Extension of Time to Answer Department of Public Safety and Correctional Services answer due 9/23/2016; Denise Gelsinger answer due 9/23/2016; Richard J. Graham, Jr answer due 9/23/2016; B. Ziller answer due 9/23/2016. Signed by Judge James K. Bredar on 8/25/2016. (c/m 8/25/16 bas, Deputy Clerk). (Entered: 08/25/2016)
18 MOTION to Deny Defendant(s) Motion for Extention of Time by James J. Jardina (Attachments: # 1 Cover Letter)(bmhs, Deputy Clerk) (Entered: 09/06/2016)
19 MOTION for Default Judgment by James J. Jardina (Attachments: # 1 Cover Letter)(bmhs, Deputy Clerk) (Entered: 09/06/2016)

09/06/2016 20 Supplement to Motion for Entry of Default by James J. Jardina (bmhs, Deputy Clerk) (Entered: 09/06/2016)

09/08/2016 09/08/2016 09/12/2016 09/19/2016 09/19/2016

21 RESPONSE in Opposition re 19 MOTION for Default Judgment as to, 20 MOTION for Clerk's Entry of Default for want of answer or other defense filed by Robustiano Barrera, Beverly McLaughlin, Wexford Health Sources, Inc.. Replies due by 9/26/2016. (Smith, Gina) (Entered: 09/08/2016)
22 ORDER denying 18 Motion to Deny Defendants' Motion for Extension of Time; denying 19 Supplement to Motion for Default Judgment; and denying 20 Supplement to Motion for Clerk's Entry of Default. Signed by Judge James K. Bredar on 9/8/2016. (c/m 9/8/16 bmhs, Deputy Clerk) (Entered: 09/08/2016)
23 MOTION for Extension of Time by James J. Jardina (Attachments: # 1 Request for Production of Documents, # 2 Certificate of Service)(bmhs, Deputy Clerk) (Entered: 09/12/2016)
24 MOTION for a Clearer and More Definite Statement on the Pleadings by James J. Jardina (bmhs, Deputy Clerk) (Entered: 09/19/2016)
25 Supplemental 1 Complaint filed by James J. Jardina. (bmhs, Deputy Clerk) (Entered: 09/19/2016)

09/20/2016

Filing fee: $ 3.15, receipt number 14637092537 (bmhs, Deputy Clerk) (Entered: 09/20/2016)

09/21/2016 09/23/2016

26 ORDER granting 23 Motion for Extension of Time; and denying without prejudice 24 Motion for a Clearer and More Definite Statement on the Pleadings. Signed by Judge James K. Bredar on 9/20/2016. (c/m 9/21/16 bmhs, Deputy Clerk) (Entered: 09/21/2016)
27 MOTION to Dismiss Or, in the Alternative, MOTION for Summary Judgment by Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, B. Ziller Responses due by 10/11/2016 (Attachments: # 1 Memorandum In Support of Motion to Dismiss Or, in the Alternative, Motion for Summary Judgment, # 2 Exhibit 1, # 3 Exhibit 2)(Nayar, Ankush) (Entered: 09/23/2016)

Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 6 of 14

09/28/2016 10/11/2016

28 Rule 12/56 letter mailed to James J. Jardina. (c/m 9/28/16 bas, Deputy Clerk) (Entered: 09/28/2016)
29 MOTION for Extension of Time by James J. Jardina (bmhs, Deputy Clerk) (Entered: 10/11/2016)

10/13/2016 30 ORDER granting 29 Motion for Extension of Time. Signed by Judge James K. Bredar on 10/13/2016. (c/m 10/13/16 bmhs, Deputy Clerk) (Entered: 10/13/2016)

10/17/2016 31 MOTION for Extension of Time by James J. Jardina (bmhs, Deputy Clerk) (Entered: 10/17/2016)

10/18/2016 10/19/2016 10/25/2016 11/03/2016

32 ORDER granting 31 Plaintiff's Motion for Extension of Time. Signed by Judge James K. Bredar on 10/18/2016. (c/m 10/18/16 bmhs, Deputy Clerk) (Entered: 10/18/2016)
Filing fee: $ 6.51, receipt number 14637093211 (bmhs, Deputy Clerk) (Entered: 10/19/2016)
Filing fee: $ 6.51, receipt number 1463793379 (bmhs, Deputy Clerk) (Entered: 10/25/2016)
33 RESPONSE in Opposition to 27 MOTION to Dismiss Or, in the Alternative MOTION for Summary Judgment filed by James J. Jardina. (Attachments: # 1 Exhibit 8, # 2 Exhibit 9, # 3 Exhibit 10, # 4 Exhibit 11, # 5 Exhibit 12, # 6 Exhibit 13, # 7 Exhibit 14, # 8 Exhibit 15, # 9 Exhibit 16, # 10 Exhibit 17, # 11 Exhibit 18, # 12 Exhibit 19, # 13 Exhibit 20, # 14 Exhibit 21, # 15 Exhibit 22, # 16 Exhibit 23, # 17 Exhibit 24, # 18 Exhibit 25, # 19 Exhibit 26)(bmhs, Deputy Clerk) (Entered: 11/03/2016)

11/03/2016

34 MOTION for Appointment of Counsel by James J. Jardina (Attachments: # 1 Memorandum in Support, # 2 Exhibit 27, # 3 Exhibit 28, # 4 Affidavit of James Jacob Jardina)(bmhs, Deputy Clerk) (Entered: 11/03/2016)

11/11/2016
11/14/2016
11/21/2016 11/28/2016 11/29/2016

35 MOTION for Extension of Time to File Response/Reply as to 33 Response in Opposition to Motion,, by Robustiano Barrera, Beverly McLaughlin, Wexford Health Sources, Inc. (Attachments: # 1 Text of Proposed Order Order)(Smith, Gina) (Entered: 11/11/2016)
36 ORDER denying 34 Motion to Appoint Counsel without prejudice ; granting 35 Motion for Extension of Time to File Response/Reply on or before December 1, 2016. Signed by Judge James K. Bredar on 11/14/2016. (c/m 11/15/2016) (ko, Deputy Clerk) (Entered: 11/15/2016)
37 MOTION for Extension of Time by James J. Jardina (Attachments: # 1 Notice of Hearing/Trial)(krs, Deputy Clerk) (Entered: 11/21/2016)
39 MOTION for Leave to Amend 1 Complaint, by James J. Jardina(krs, Deputy Clerk) (Entered: 11/29/2016)
38 Supplemental to 33 Response in Opposition to Motion,, filed by James J. Jardina (Attachments: # 1 Exhibit 29, # 2 Exhibit 30, # 3 Exhibit 31, # 4 Exhibit 32, # 5 Exhibit 33, # 6 Exhibit 34, # 7 Exhibit 35, # 8 Exhibit 36, # 9 Exhibit 37)(krs, Deputy Clerk) (Entered: 11/29/2016)

11/30/2016

40 RESPONSE to Motion re 39 MOTION to Amend/Correct 1 Complaint, filed by Robustiano Barrera, Beverly McLaughlin, Wexford Health Sources, Inc..(Smith, Gina) (Entered: 11/30/2016)

12/01/2016 12/01/2016
12/01/2016

41 MOTION to Reconsider Plaintiffs Motion for Appointment of Counsel by James J. Jardina (Attachments: # 1 Affidavit)(bas, Deputy Clerk) (Entered: 12/01/2016)
42 REPLY to Response to Motion re 14 MOTION to Dismiss or, in the Alternative, Motion for Summary Judgment filed by Robustiano Barrera, Beverly McLaughlin, Wexford Health Sources, Inc.. (Attachments: # 1 Exhibit Exhibit 2)(Smith, Gina) (Entered: 12/01/2016)
43 Supplemental to 42 Reply to Response to Motion, filed by Robustiano Barrera, Beverly McLaughlin, Wexford Health Sources, Inc. Exhibit 1 (Attachments: # 1 Supplement Ex 1 − pt. 2)(Smith, Gina) (Entered: 12/01/2016)

Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 7 of 14

12/01/2016 12/05/2016

44 ORDER granting 37 Motion for Extension of Time; granting 39 Motion for Leave to Amend. Signed by Judge James K. Bredar on 12/1/2016. (c/m 12/2/16) (krs, Deputy Clerk) (Entered: 12/02/2016)
Filing fee: $ 6.30, receipt number 14637094305 (krs, Deputy Clerk) (Entered: 12/06/2016)

12/30/2016 45 MOTION for Sanctions and/or Motion to Strike by James J. Jardina (Attachments: # 1 Attachments)(kr2, Deputy Clerk) (Entered: 12/30/2016)

12/30/2016 46 Correspondence from James J. Jardina re: copy work request(kr2, Deputy Clerk) (Entered: 01/03/2017)

01/05/2017 01/17/2017
01/25/2017 01/27/2017

Filing fee: $ 6.51, receipt number 14637094967 (kr2, Deputy Clerk) (Entered: 01/05/2017)
47 RESPONSE in Opposition re 45 MOTION for Sanctions Defendants' Opposition and Motion to Strike Plaintiff's Motion for Sanctions filed by Robustiano Barrera, Beverly McLaughlin, Wexford Health Sources, Inc.. (Attachments: # 1 Text of Proposed Order Order)(Smith, Gina) (Entered: 01/17/2017)
48 REPLY to Response to Motion re 45 MOTION for Sanctions filed by James J. Jardina.(kr2, Deputy Clerk) (Entered: 01/25/2017)
49 Correspondence from James J. Jardina re: Request for copy work and forms(kr2, Deputy Clerk) (Entered: 01/27/2017)

02/27/2017

Filing fee: $ 6.51, receipt number 14637096145 (kr2, Deputy Clerk) (Entered: 02/28/2017)

03/01/2017 03/03/2017 03/03/2017
03/27/2017 03/27/2017

50 ORDER dismissing 41 Motion for Reconsideration as untimely ; denying 45 Motion for Sanctions and/or Motion to Strike. Signed by Judge James K. Bredar on 2/27/2017. (c/m 3/1/17) (kr2, Deputy Clerk) (Entered: 03/01/2017)
51 MEMORANDUM OPINION. Signed by Judge James K. Bredar on 3/2/2017. (c/m 3/3/17)(kr2, Deputy Clerk) (Entered: 03/03/2017)
52 ORDER granting 14 Motion to Dismiss as stated therein; granting 27 Motion to Dismiss as stated therein; granting 27 Motion for Summary Judgment as stated therein; directing Clerk to amend docket; declining to exercise supplemental jurisdiction over state law claims, which are dismissed without prejudice; directing Clerk to close case. Signed by Judge James K. Bredar on 3/2/2017. (c/m 3/3/17) (kr2, Deputy Clerk) (Entered: 03/03/2017)
Filing fee: $ 6.51, receipt number 14637096763 (kr2, Deputy Clerk) (Entered: 03/27/2017)
53 NOTICE OF APPEAL as to 52 Order on Motion to Dismiss, Order on Motion for Summary Judgment, 51 Memorandum Opinion by James J. Jardina.(Fee Status: Filing Fee Not Paid) (slss, Deputy Clerk) (Entered: 03/28/2017)

03/28/2017

54 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 53 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(slss, Deputy Clerk) (Entered: 03/28/2017)

03/28/2017 03/28/2017 04/20/2017 04/27/2017

Assembled Electronic Record Transmitted to Fourth Circuit −− Initial.(slss, Deputy Clerk) (Entered: 03/28/2017)
55 USCA Case Number 17−6413 for 53 Notice of Appeal filed by James J. Jardina. Case Manager − Emily Musser. (slss, Deputy Clerk) (Entered: 03/28/2017)
56 ORDER of USCA "granting" leave to proceed without prepayment of fees as to 53 Notice of Appeal filed by James J. Jardina. (slss, Deputy Clerk) (Entered: 04/20/2017)
Filing fee: $ 5.88, receipt number 14637097544 (kr2, Deputy Clerk) (Entered: 04/27/2017)

Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 8 of 14

06/05/2017 07/28/2017

Filing fee: $.42, receipt number 14637098321 (kr2, Deputy Clerk) (Entered: 06/06/2017)
Filing fee: $ 8.40, receipt number 14637099500 (kr2, Deputy Clerk) (Entered: 07/28/2017)

08/23/2017

57 JUDGMENT of USCA (certified copy)"Dismissing" this appeal and "Remanding" to the District Court for further proceedings consistent with the Court's decision as to 53 Notice of Appeal filed by James J. Jardina. (slss, Deputy Clerk) (Entered: 08/23/2017)

08/29/2017

Filing fee: $ 4.62, receipt number 14637100189 (jah, Deputy Clerk) (Entered: 08/29/2017)

08/29/2017
09/14/2017 09/15/2017 10/03/2017

(FILED IN ERROR− WRONG CASE) Filing fee: $ 26.09, receipt number 14−cv−002477 (jah, Deputy Clerk) Modified on 8/29/2017 (ko, Deputy Clerk). (Entered: 08/29/2017)
58 MANDATE of USCA as to 53 Notice of Appeal filed by James J. Jardina (slss, Deputy Clerk) (Entered: 09/14/2017)
59 ORDER Granting plaintiff 28 days to file an Amended Complaint. Signed by Judge James K. Bredar on 9/15/2017. (c/m 9/18/17 bas, Deputy Clerk) (Entered: 09/18/2017)
Filing fee: $ 4.41, receipt number 14637100864 (jb5, Deputy Clerk) (Entered: 10/03/2017)

10/12/2017 60 MOTION for Extension of Time by James J. Jardina(jb5, Deputy Clerk) (Entered: 10/12/2017)

11/02/2017 11/06/2017 11/06/2017
11/06/2017
11/09/2017

Filing fee: $ 4.83, receipt number 14637101615 (bas, Deputy Clerk) (Entered: 11/03/2017)
61 MOTION for Extension of Time by James J. Jardina(jb5, Deputy Clerk) (Additional attachment(s) added on 11/7/2017: # 1 Certificate of Service) (jb5, Deputy Clerk). (Entered: 11/07/2017)
62 ORDER granting 60 Motion for Extension of Time to and including November 28, 2017. Plaintiff is cautioned that the court is disinclined to grant additional extensions unless he articulates a particular need for specific materials, facts and length of time needed to complete amended complaint. Signed by Chief Judge James K. Bredar on 11/6/2017. (jb5, Deputy Clerk)(c/m 11−7−2017) (Entered: 11/07/2017)
63 MOTION to Appoint Counsel by James J. Jardina (Attachments: # 1 Declaration in Support of Plaintiffs Motion For The Appointment of Counsel, # 2 Memorandum of Law In Support of Plaintiffs Motion For The Appointment of Counsel, # 3 Declaration of Simon T Tusha, # 4 Declaration of John Lando)(jb5, Deputy Clerk) (Entered: 11/08/2017)
64 ORDER Granting 61 Motion for Extension of Time and Plaintiff's request for appointment of counsel (contained in ECF 61) is Denied. Signed by Chief Judge James K. Bredar on 11/9/2017. (jb5, Deputy Clerk)(c/m 11−13−2017) (Entered: 11/13/2017)

12/04/2017

Filing fee: $ 4.41, receipt number 14637102291 (jb5, Deputy Clerk) (Entered: 12/04/2017)

12/27/2017
01/05/2018 01/09/2018

65 AMENDED COMPLAINT against Robustiano Barrera, Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, Beverly McLaughlin, Wexford Health Sources, Inc., B. Ziler, filed by James J. Jardina. (Attachments: # 1 Exhibit Exhibits 9 thru 17, # 2 Declaration of Bolton, # 3 Declaration of Elliott, # 4 Declaration of Malaskis, # 5 Declaration of Southern, # 6 Declaration of Tomczewski)(jb5, Deputy Clerk) (Entered: 12/28/2017)
Filing fee: $ 4.62, receipt number 14637103010 (nu, Deputy Clerk) (Entered: 01/10/2018)
66 MOTION for Extension of Time to Respond to Plaintiff's Motion to File an Amended Complaint by Robustiano Barrera, Beverly McLaughlin, Wexford Health Sources, Inc. (Attachments: # 1 Text of Proposed Order Order)(Meister, Douglas) (Entered: 01/09/2018)

Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 9 of 14

01/11/2018 01/11/2018

67 NOTICE of Appearance by Stephanie Judith Lane Weber on behalf of Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, B. Ziler (Lane Weber, Stephanie) (Entered: 01/11/2018)
68 ORDER denying 63 Motion to Appoint Counsel ; granting 66 Motion for Extension of Time. Signed by Chief Judge James K. Bredar on 1/10/2018. (jb5, Deputy Clerk)(c/m−1−11−2018) (Entered: 01/11/2018)

01/24/2018

69 MOTION for Extension of Time to File Answer to and including February 23, 2018 by Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, B. Ziler (Attachments: # 1 Text of Proposed Order)(Lane Weber, Stephanie) (Entered: 01/24/2018)

02/07/2018

70 NOTICE of Appearance by Douglas Conrad Meister on behalf of Robustiano Barrera, Beverly McLaughlin, Wexford Health Sources, Inc. (Meister, Douglas) (Entered: 02/07/2018)

02/08/2018 02/23/2018 02/26/2018 03/01/2018

Filing fee: $ 4.83, receipt number 14637103860 (jb5, Deputy Clerk) (Entered: 02/09/2018)
71 MOTION for Extension of Time to File Answer to and including March 26, 2018 by Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, B. Ziler (Attachments: # 1 Text of Proposed Order)(Lane Weber, Stephanie) (Entered: 02/23/2018)
72 MOTION for Extension of Time to Reply to Plaintiff's Amended Complaint by Robustiano Barrera, Beverly McLaughlin, Wexford Health Sources, Inc. (Attachments: # 1 Text of Proposed Order Order)(Meister, Douglas) (Entered: 02/26/2018)
73 ORDER granting 69 Motion for Extension of Time to Answer Nunc Pro Tunc ; granting 71 Motion for Extension of Time to Answer til March 26, 2018 ; granting 72 Motion for Extension of Time til March 5, 2018. Signed by Chief Judge James K. Bredar on 2/28/2018. (jb5, Deputy Clerk)(c/m−03/01/2018) (Entered: 03/01/2018)

03/02/2018

74 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment by Robustiano Barrera, Beverly McLaughlin, Wexford Health Sources, Inc. (Attachments: # 1 Text of Proposed Order Order − MTD, # 2 Text of Proposed Order Order − MSJ, # 3 Supplement Memorandum of Law, # 4 Exhibit Exhibit 1 − Medical Records, # 5 Exhibit Exhibit 2 − Affidavit, # 6 Exhibit Exhibit 3 − Affidavit)(Smith, Gina) (Entered: 03/02/2018)

03/05/2018 03/19/2018 03/20/2018 03/26/2018
03/27/2018

Filing fee: $ 4.41, receipt number 14637104392 (jb5, Deputy Clerk) (Entered: 03/07/2018)
75 MOTION to Withdraw Defendants Without Prejudice by James J. Jardina(jb5, Deputy Clerk) (Entered: 03/19/2018)
76 Rule 12/56 letter mailed to James J. Jardina (jb5, Deputy Clerk) (Entered: 03/20/2018)
77 MOTION for Extension of Time to File Answer to and including April 25, 2018 by Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, B. Ziler (Attachments: # 1 Text of Proposed Order)(Lane Weber, Stephanie) (Entered: 03/26/2018)
78 Consent MOTION to Dismiss the Medical Defendants by Robustiano Barrera, Wexford Health Sources, Inc.(Smith, Gina) (Entered: 03/27/2018)

03/30/2018

79 ORDER dismissing 74 Motion to Dismiss; granting 75 Motion to Withdraw ; granting 78 Motion to Dismiss; State Defendants' Motion for an extension of time to and including April 25th 2018 is granted. No further extensions will be granted without demonstration of compelling cause. Signed by Chief Judge James K. Bredar on 3/30/2018. (jb5, Deputy Clerk)(c/m−04−03−2018) (Entered: 04/03/2018)

04/03/2018 04/25/2018

Filing fee: $ 4.83, receipt number 14637105172 (jb5, Deputy Clerk) (Entered: 04/05/2018)
80 MOTION to Dismiss , MOTION for Summary Judgment by Denise Gelsinger, Richard J. Graham, Jr (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1

Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 10 of 14

05/04/2018 05/07/2018 05/10/2018
06/04/2018 06/21/2018 07/03/2018 07/23/2018
08/13/2018 09/14/2018 09/24/2018 09/26/2018 10/01/2018 10/04/2018 10/10/2018 10/30/2018 12/03/2018 12/03/2018 12/10/2018
12/10/2018 12/14/2018 12/18/2018

Declaration of L. Tennille Winters dated March 28, 2018, with attached records, # 3 Exhibit 2 Medical Records, # 4 Exhibit 3 ECF 42−1 − Dr. Robustiano Barrera, # 5 Exhibit 4 Declaration of Richard Graham,Jr. dated March 26, 2018, # 6 Exhibit 5 Declaration of Denise Gelsinger dated March 20, 2018)(Lane Weber, Stephanie) (Entered: 04/25/2018)
Filing fee: $ 4.20, receipt number 146371006019 (jb5, Deputy Clerk) (Entered: 05/04/2018)
81 MOTION for Extension of Time by James J. Jardina(jb5, Deputy Clerk) (Entered: 05/08/2018)
82 ORDER granting 81 Motion for Extension of Time; directing Clerk to amend the docket to reflect plaintiff's current address. Signed by Chief Judge James K. Bredar on 5/9/2018. (c/m 5/10/18) (krs, Deputy Clerk) (Entered: 05/10/2018)
Filing fee: $ 4.62, receipt number 14637106683 (jb5, Deputy Clerk) (Entered: 06/05/2018)
83 MOTION for Extension of Time by James J. Jardina(jb5, Deputy Clerk) (Entered: 06/21/2018)
84 ORDER granting 83 Motion for Extension of Time;. Signed by Chief Judge James K. Bredar on 7/2/2018. (jb5, Deputy Clerk)(c/m−07−03−2018) (Entered: 07/03/2018)
85 RESPONSE in Opposition re 80 MOTION to Dismiss MOTION for Summary Judgment filed by James J. Jardina. (Attachments: # 1 Declaration, # 2 Exhibits)(jb5, Deputy Clerk) (Entered: 07/23/2018)
Filing fee: $ 0.63, receipt number 14637108182 (ds3, Deputy Clerk) (Entered: 08/17/2018)
86 Rule 12/56 letter mailed to James J. Jardina (jb5, Deputy Clerk) (Entered: 09/14/2018)
87 MOTION for Extension of Time by James J. Jardina (Attachments: # 1 Affidavit, # 2 Cover Letter)(jb5, Deputy Clerk) (Entered: 09/24/2018)
88 ORDER granting 87 Motion for Extension of Time. Signed by Chief Judge James K. Bredar on 9/26/18. (c/m 9/27/18) (krs, Deputy Clerk) (Entered: 09/27/2018)
89 MOTION to Appoint Counsel by James J. Jardina (Attachments: # 1 Cover Letter, # 2 Memorandum in Support, # 3 Affidavit)(jb5, Deputy Clerk) (Entered: 10/02/2018)
Filing fee: $ 8.19, receipt number 14637109700 (jb5, Deputy Clerk) (Entered: 10/05/2018)
90 Correspondence from Plaintiff re: Courts Order at ECF 88(ds3, Deputy Clerk) (Entered: 10/11/2018)
Filing fee: $ 14.28, receipt number 14637110237 (ds3, Deputy Clerk) (Entered: 11/01/2018)
Filing fee: $ 4.83, receipt number 14637111049 (jb5, Deputy Clerk) (Entered: 12/06/2018)
FILED IN ERROR− Filing fee: $ 6.51, receipt number 14637111041 (jb5, Deputy Clerk) (Entered: 12/06/2018)
91 MOTION to Strike Appearance by Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, B. Ziler(Lane Weber, Stephanie) (Entered: 12/10/2018)
92 ORDER granting 91 Motion to Strike Appearance. Signed by Chief Judge James K. Bredar on 12/10/2018. (jb5, Deputy Clerk) (Entered: 12/12/2018)
Filing fee: $ 4.20, receipt number 14637111505 (jb5, Deputy Clerk) (Entered: 12/17/2018)
93 MEMORANDUM OPINION. Signed by Chief Judge James K. Bredar on 12/18/2018. (jb5, Deputy Clerk)(c/m−12−18−2018) (Entered: 12/18/2018)

Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 11 of 14

12/18/2018 12/28/2018

94 ORDER granting in part and denying in part 80 Motion for Summary Judgment; denying 89 Motion to Appoint Counsel; dismissing claims against Defendant Officer B. Ziler; Granting Summary Judgment in favor of Defendants as to Claims One and Two and DENIED as to all remaining claims; requiring defendants to respond to the remaining claims within 28 days of the date of this Order as set forth in the foregoing Memorandum Opinion and May Renew the Motion for Summary Judgment at that time; Clerk shall send a copy of this Order and the accompanying Memorandum to the Plaintiff and to Stephanie Lane−Weber, Assistant Attorney General. Signed by Chief Judge James K. Bredar on 12/18/2018. (jb5, Deputy Clerk)(c/m−12−18−2018) (Entered: 12/18/2018)
95 MOTION for Objections to Ruling or Order Pursuant to Fed.R.Civ.P.46 by James J. Jardina (Attachments: # 1 Cover Letter)(jb5, Deputy Clerk) (Entered: 12/28/2018)

01/10/2019

Filing fee: $ 4.83, receipt number 14637112026 (jb5, Deputy Clerk) (Entered: 01/10/2019)

01/14/2019

96 MOTION for Extension of Time by Denise Gelsinger, Richard J. Graham, Jr (Attachments: # 1 Text of Proposed Order)(Lane Weber, Stephanie) (Entered: 01/14/2019)

01/15/2019 02/01/2019 02/13/2019
02/14/2019

97 ORDER granting 96 Motion for Extension of Time to and including the 13th of February. Signed by Chief Judge James K. Bredar on 1/16/2019. (jb5, Deputy Clerk)(c/m−01−16−2019) (Entered: 01/16/2019)
Filing fee: $ 4.62, receipt number 14637112591 (ds3, Deputy Clerk) (Entered: 02/06/2019)
98 MOTION to Dismiss , MOTION for Summary Judgment by Denise Gelsinger, Richard J. Graham, Jr (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 Declaration of Michael Yates, # 3 Exhibit 2 Medical Records, # 4 Exhibit 3 Declaration of Jon R. Scramlin)(Lane Weber, Stephanie) (Entered: 02/13/2019)
99 Rule 12/56 letter mailed to James J. Jardina (jb5, Deputy Clerk) (Entered: 02/14/2019)

02/27/2019 100 MOTION for Extension of Time by James J. Jardina(jb5s, Deputy Clerk) (Entered: 02/27/2019)

03/06/2019

101 ORDER denying 95 Motion Plaintiffs Objections to Ruling or Order Pursuant to Rule 46 of the Federal Rules of Civil Procedure; granting 100 Motion for Extension of Time; giving Plaintiff 28 days from the date of this Order to file for his reasons why he believes Officer Ziler violated his ADA rights. Signed by Chief Judge James K. Bredar on 3/6/2019. (jb5, Deputy Clerk)(c/m−03−06−2019) (Entered: 03/06/2019)

03/11/2019 03/21/2019
03/21/2019 04/10/2019

Filing fee: $ 4.62, receipt number 14637113464 (ds3, Deputy Clerk) (Entered: 03/15/2019)
102 RESPONSE in Opposition re 98 MOTION to Dismiss MOTION for Summary Judgment filed by James J. Jardina. (Attachments: # 1 Cover Letter, # 2 Attachment)(jb5, Deputy Clerk) (Entered: 03/21/2019)
103 MOTION to Amend Complaint by James J. Jardina(jb5, Deputy Clerk) (Entered: 03/21/2019)
Filing fee: $ 8.19, receipt number 14637114273 (jb5, Deputy Clerk) (Entered: 04/11/2019)

04/17/2019 104 MEMORANDUM OPINION. Signed by Chief Judge James K. Bredar on 4/17/2019. (jb5, Deputy Clerk)(c/m−04−17−2019) (Entered: 04/17/2019)

04/17/2019 04/17/2019

105 FILED IN ERROR−ORDER granting in part and denying in part 98 Motion to Dismiss; granting 98 Motion for Summary Judgment; denying 103 Motion to Alter/Amend Judgment; The denial of Plaintiffs Motion for Appointment of Counsel (ECF 94 1, ECF 89) IS rescinded and Plaintiffs Motion for Appointment of Counsel (ECF 89) IS granted. Signed by Chief Judge James K. Bredar on 4/17/2019. (jb5, Deputy Clerk)(c/m−04−17−2019) (Entered: 04/17/2019)
106 ORDER APPOINTING PRO BONO COUNSEL; ORDER granting in part and denying in part 98 Motion to Dismiss; granting 98 Motion for Summary Judgment;

Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 12 of 14

04/18/2019 04/22/2019
05/06/2019
05/09/2019 05/13/2019 05/30/2019 05/31/2019 07/01/2019 07/01/2019 07/01/2019 07/09/2019 07/11/2019 07/24/2019 07/24/2019
07/31/2019 08/01/2019 08/02/2019

denying 103 Motion to Alter/Amend Judgment; The denial of Plaintiffs Motion for Appointment of Counsel (ECF 94 1, ECF 89) IS rescinded and Plaintiffs Motion for Appointment of Counsel (ECF 89) IS granted. Signed by Chief Judge James K. Bredar on 4/17/2019. (jb5, Deputy Clerk)(c/m−04−17−2019) (Entered: 04/17/2019)
107 MOTION for Extension of Time to File Answer by Denise Gelsinger, Richard J. Graham, Jr (Attachments: # 1 Text of Proposed Order)(Lane Weber, Stephanie) (Entered: 04/18/2019)
108 ORDER denying 107 Motion for Extension of Time to Answer; as it has been requested prematurely and will be considered after counsel is appointed and the initial status report is filed. Signed by Chief Judge James K. Bredar on 4/22/2019. (jb5, Deputy Clerk)(c/m−04−22−2019) (Entered: 04/22/2019)
109 ORDER APPOINTING PRO BONO COUNSEL Ryan S. Perlin for James J. Jardina; attorney may file a motion for reconsideration of this appointment within 14 days of this Order and show good cause why he is unable to accept the appointment. Signed by Chief Judge James K. Bredar on 5/6/2019. (jb5, Deputy Clerk)(c/m−05−06−2019) (c/s docket sheet, complaint, reimbursement form on 5/7/2019) (srd, Deputy Clerk). (Entered: 05/06/2019)
110 Mail Returned as Undeliverable. Mail sent to Ryan Perlin (Counsel) (Attachments: # 1 Docket Sheet & Complaint) (jb5, Deputy Clerk) (Entered: 05/10/2019)
Filing fee: $ 4.20, receipt number 14637115065 (jb5, Deputy Clerk) (Entered: 05/13/2019)
111 Status Report Submitted Request for 30 Day Period to Establish Representation by James J. Jardina (Perlin, Ryan) (Entered: 05/30/2019)
112 PAPERLESS ORDER re 111 Status Report Submitted filed by James J. Jardina. The Status Report is APPROVED. The next Status Report is due 7/1/19. Signed by Chief Judge James K. Bredar on 5/31/2019. (vdcs, Chambers) (Entered: 05/31/2019)
113 MOTION for Substitution of Counsel and Motion to Strike Appearance by Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, B. Ziler(Curnutte, Francis) (Entered: 07/01/2019)
114 Status Report Submitted Request for 30−Day Period to Develop Discovery or Mediation Plan by James J. Jardina (Perlin, Ryan) (Entered: 07/01/2019)
115 ORDER granting 113 Motion to Strike. Signed by Chief Judge James K. Bredar on 7/1/2019. (jb5, Deputy Clerk) (Entered: 07/02/2019)
116 PAPERLESS ORDER re 114 Status Report Submitted filed by James J. Jardina. The Status Report is APPROVED. The next Status Report is due 7/31/19. Signed by Chief Judge James K. Bredar on 7/9/2019. (vdcs, Chambers) (Entered: 07/09/2019)
Filing fee: $ 8.82, receipt number 14637116388 (jb5s, Deputy Clerk) (Entered: 07/11/2019)
117 MOTION to Strike Substitution of Counsel and Motion to Strike Appearance by Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, B. Ziler(Crawford, Mary) (Entered: 07/24/2019)
118 MARGINAL ORDER granting Defendants Dept. of Public Safety and Correctional Services, Warden Graham, and former asst. Warden Denise Gelsinger, CO II B. Ziler's 117 Motion to Substitute Counsel and Strike appearance. Signed by Chief Judge James K. Bredar on 7/24/2019. (dass, Deputy Clerk) (Entered: 07/24/2019)
119 Status Report Submitted (Req for Referral for Settlement Conference) by James J. Jardina (Perlin, Ryan) (Entered: 07/31/2019)
120 ORDER approving 119 Status Report Submitted filed by James J. Jardina; staying deadlines. Signed by Chief Judge James K. Bredar on 8/1/2019. (dass, Deputy Clerk) (Entered: 08/01/2019)
121 ORDER REFERRING CASE to Magistrate Judge J. Mark Coulson for Settlement. Signed by Chief Judge James K. Bredar on 8/2/2019. (cags, Deputy Clerk) (Entered:

Case: 1:16-cv-1255 As of: 06/07/2020 06:08 PM EDT 13 of 14

08/02/2019 08/21/2019 09/11/2019 10/01/2019 10/03/2019 10/08/2019
10/08/2019 10/14/2019 10/16/2019
10/21/2019
11/08/2019 11/14/2019 11/15/2019 11/26/2019 12/10/2019 12/11/2019 12/13/2019 12/23/2019 01/10/2020

08/02/2019)
122 ORDER Scheduling Settlement Conference. Signed by Magistrate Judge J. Mark Coulson on 8/2/2019. (daws, Chambers) (Entered: 08/02/2019)
Filing fee: $ 4.62, receipt number 14637117253 (ds3, Deputy Clerk) (Entered: 08/26/2019)
Filing fee: $ 3.36, receipt number 14637117799 (ds3, Deputy Clerk) (Entered: 09/16/2019)
123 MOTION to Stay by Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 Complaint)(Crawford, Mary) (Entered: 10/01/2019)
124 Correspondence re: Settlement Conference (Crawford, Mary) (Entered: 10/03/2019)
125 PAPERLESS ORDER Cancelling the Settlement Conference currently scheduled for October 24, 2019. Parties to contact Chambers if there is a desire to reschedule. Signed by Magistrate Judge J. Mark Coulson on 10/8/2019. (daws, Chambers) (Entered: 10/08/2019)
126 MARGINAL ORDER approving 124 Correspondence requesting settlement be cancelled. Signed by Magistrate Judge J. Mark Coulson on 10/3/2019. (dass, Deputy Clerk) (Entered: 10/08/2019)
127 RESPONSE in Opposition re 123 MOTION to Stay filed by James J. Jardina.(Perlin, Ryan) (Entered: 10/14/2019)
128 NOTICE by Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr re 127 Response in Opposition to Motion Line of Consent to (ECF−127) Plaintiff's Response to Defendant's Motion to Stay (Crawford, Mary) (Entered: 10/16/2019)
129 ORDER granting 123 Motion to Stay. All deadlines are stayed for 90 days from the date of this order. The parties shall file a joint status report on or before January 21, 2020. Signed by Chief Judge James K. Bredar on 10/21/2019. (jb5, Deputy Clerk)(c/m−10−21−2019−Plaintiff) (Entered: 10/21/2019)
Filing fee: $ 4.62, receipt number 14637119285 (ds3, Deputy Clerk) (Entered: 11/14/2019)
130 MOTION to Withdraw as Attorney Motion for Substitution of Counsel by Department of Public Safety and Correctional Services, Denise Gelsinger, Richard J. Graham, Jr, B. Ziler(Crawford, Mary) (Entered: 11/14/2019)
131 ORDER granting 130 Motion to Withdraw as Attorney. Attorney Mary Catherine Crawford terminated. Signed by Chief Judge James K. Bredar on 11/15/2019. (jb5, Deputy Clerk) (Entered: 11/18/2019)
132 MOTION to Consolidate Cases by James J. Jardina (Attachments: # 1 Exhibit Complaint and Demand for Jury Trial (Rogers case), # 2 Text of Proposed Order Proposed Order RE Motion to Consolidate)(Perlin, Ryan) (Entered: 11/26/2019)
133 RESPONSE re 132 MOTION to Consolidate Cases (Opposition) filed by Denise Gelsinger, Richard J. Graham, Jr. (Attachments: # 1 Exhibit Rogers, et al Complaint, # 2 Exhibit Rogers, er al Docket entries)(Lane Weber, Stephanie) (Entered: 12/10/2019)
134 REPLY to Response to Motion re 132 MOTION to Consolidate Cases filed by James J. Jardina.(Perlin, Ryan) (Entered: 12/11/2019)
Filing fee: $ 41.30, receipt number 14637120003 (jj2, Deputy Clerk) (Entered: 12/13/2019)
135 MEMORANDUM to Counsel re: Dismissal. Signed by Chief Judge James K. Bredar on 12/20/2019. (hmls, Deputy Clerk) (Entered: 12/23/2019)
136 RESPONSE re 135 Memorandum to Parties Joint Statement filed by Denise Gelsinger, Richard J. Graham, Jr.(Lane Weber, Stephanie) (Entered: 01/10/2020)

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01/15/2020 01/15/2020

137 ORDER granting Plaintiff's 132 Motion to Consolidate Cases JKB−16−1255 and ELH−19−3090; directing all filings be made under the case of Rogers, et al. v. Maryland Department of Public Safety and Correctional Services et al (JKB−19−3090) which is the Lead Case. Signed by Chief Judge James K. Bredar on 1/15/2020. (dass, Deputy Clerk) (Entered: 01/16/2020)
THIS IS A CONSOLIDATED CASE. PLEASE DO NOT ELECTRONICALLY FILE OR SPREAD TEXT IN THIS CASE. ALL SUBSEQUENT PLEADINGS ARE TO BE ELECTRONICALLY FILED ONLY IN THE LEAD CASE (ELH−19−3090). (dass, Deputy Clerk) (Entered: 01/16/2020)

02/05/2020

138 (FILED IN ERROR) Amended MOTION for Extension of Time to File Response/Reply by James J. Jardina, Vincent Berry, Larry Coleman, John Fishback, James Jardina, Karl Rogers, Eric Andre Young. (Attachments: # 1 Text of Proposed Order Proposed Order)Associated Cases: 1:19−cv−03090−JKB, 1:16−cv−01255−JKB(Honick, Allen) Modified on 2/7/2020 (dass, Deputy Clerk). (Entered: 02/05/2020)

02/07/2020

139 QC NOTICE: 138 Motion for Extension of Time to File Response/Reply, filed by James Jardina, Karl Rogers, Eric Andre Young, Larry Coleman, Vincent Berry, John Fishback, James J. Jardina was filed incorrectly. **THIS IS A CONSOLIDATED CASE. PLEASE DO NOT ELECTRONICALLY FILE OR SPREAD TEXT IN THIS CASE. ALL SUBSEQUENT PLEADINGS ARE TO BE ELECTRONICALLY FILED ONLY IN THE LEAD CASE (ELH−19−3090). It has been noted as FILED IN ERROR, and the document link has been disabled. (dass, Deputy Clerk) (Entered: 02/07/2020)

02/27/2020 02/27/2020

140 (FILED IN ERROR) Consent MOTION for Extension of Time to File Response/Reply as to (19 in 1:19−cv−03090−JKB) MOTION to Dismiss for Failure to State a Claim by James J. Jardina, Vincent Berry, Larry Coleman, John Fishback, James Jardina, Karl Rogers, Eric Andre Young (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:19−cv−03090−JKB, 1:16−cv−01255−JKB(Honick, Allen) Modified on 2/27/2020 (dass, Deputy Clerk). (Entered: 02/27/2020)
141 QC NOTICE: 140 Amended Motion for Extension of Time to File Response/Reply, filed by James Jardina, Karl Rogers, Eric Andre Young, Larry Coleman, Vincent Berry, John Fishback, James J. Jardina was filed incorrectly. ****THIS IS A CONSOLIDATED CASE. PLEASE DO NOT ELECTRONICALLY FILE OR SPREAD TEXT IN THIS CASE. ALL PLEADINGS ARE TO BE ELECTRONICALLY FILED ONLY IN THE LEAD CASE (ELH−19−3090). It has been noted as FILED IN ERROR, and the document link has been disabled. (dass, Deputy Clerk) (Entered: 02/27/2020)

 
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 Case 1:16-cv-01255-JKB Document 52 Filed 03/03/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

JAMES J. JARDINA, # 418-567

*

*

Plaintiff,

*

*

v.

*

*

DEPARTMENT OF PUBLIC SAFETY AND *

CORRECTIONAL SERVICES,

*

RICHARD J. GRAHAM, JR. Warden (WCI), *

DENISE GELSINGER, Ass’t Warden (WCI), *

B. ZILLER, CO II (WCI),

*

WEXFORD HEALTH SOURCES, INC.,

*

ROBUSTIANO BARRERA, Doctor (WCI), *

BEVERLY McLAUGHLIN, RNP, Medical *

Provider (WCI)

*

*

Defendants.

*

***

O R D E R

Civil Action No. JKB-16-1255

For reasons stated in the foregoing memorandum opinion, it is this 2nd day of March 2017, by the United States District Court for the District of Maryland, hereby ordered:
1. The Clerk shall amend the docket as directed in the memorandum opinion; 2. The Wexford Defendants’ motion to dismiss or, in the alternative, motion for summary
judgment (ECF No. 14) IS GRANTED. The claims against Wexford Health Sources, Inc., ARE DISMISSED with prejudice. The ADA claims against Barrera and McLaughlin ARE DISMISSED without prejudice. Summary judgment is entered in favor of Barrera and McLaughlin as to Jardina’s claims they rendered inadequate medical care in violation of his Eighth Amendment rights by failing to provide him with a personalized wheelchair and ensure its maintenance; 3. The State Defendants’ motion to dismiss or, in the alternative, motion for summary

Case 1:16-cv-01255-JKB Document 52 Filed 03/03/17 Page 2 of 2 judgment (ECF No. 27) IS GRANTED. The claims against the DPSCS ARE DISMISSED with prejudice. The ADA claims against Graham, Gelsinger, and Ziler ARE DISMISSED without prejudice. Summary judgment is entered in favor of Graham, Gelsinger, and Ziler as to Jardina’s Eighth Amendment claim that they acted with deliberate indifference to his safety in regard to his fall from a wheelchair; 4. The court DECLINES to exercise supplemental jurisdiction over Jardina’s state law claims, which are DISMISSED WITHOUT PREJUDICE; 5. The Clerk SHALL CLOSE this case; and 6. The Clerk SHALL SEND a copy of this order and the foregoing memorandum opinion to Jardina and counsel of record.
___________/s/_______________ James K. Bredar United States District Judge
2

 
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 Case 1:16-cv-01255-JKB Document 94 Filed 12/18/18 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

JAMES J. JARDINA, #418-567

*

*

Plaintiff,

*

*

v.

*

*

DEPARTMENT OF PUBLIC SAFETY AND *

CORRECTIONAL SERVICES et al.,

*

*

Defendants.

*

***

ORDER

Civil Action No. JKB-16-1255

For reasons stated in the foregoing Memorandum Opinion, it is HEREBY ORDERED, by

the United States District Court for the District of Maryland:

1. The Motion to Appoint Counsel (ECF 89) IS DENIED;

2. Defendants’ Motion for Summary Judgment (ECF 80) IS GRANTED in part and DENIED in part;

3. The claims against Defendant Officer B. Ziler ARE DISMISSED;

4. Summary Judgment IS GRANTED in favor of Defendants as to Claims One and Two and DENIED as to all remaining claims;

5. Defendants SHALL RESPOND to the remaining claims within 28 days of the date of this Order as set forth in the foregoing Memorandum Opinion and MAY RENEW the Motion for Summary Judgment at that time; and

6. The Clerk SHALL SEND a copy of this Order and the accompanying Memorandum to Plaintiff and to Stephanie Lane-Weber, Assistant Attorney General.

Dated this 17th day of December, 2018.

FOR THE COURT:
/s/ James K. Bredar Chief Judge

 
 Case 1:16-cv-01255-JKB Document 137 Filed 01/15/20 Page 1 of 1