GEORGE J. HAZEL, District Judge.
James Houck, an inmate at the Western Correctional Institution ("WCI"). files this action against Defendants Harry B. Murphy. Ph.D., Melanie Gordon. Jonathan I less. Ronald Shane Weber (collectively, the "Mental Health Defendants"). Wexford Health Sources. Inc. ("Wexford"), and Vincent A. Siracusano, M.D. Houck has tiled suit pursuant to 42 U.S.C. § 1983, for alleged violations of his eight Amendment rights. All Defendants have filed dispositive motions. For the following reasons, these motions will be granted with the exception of Defendant Siracusano.
Houck is an inmate who is incarcerated at WCI in Cumberland. Maryland. On May 2. 2016, he filed a Complaint pro se pursuant to 42 U.S.C. § 1983, ECF No. 1, which he amended on September 14, 2016, at the direction of the Court. ECF No. 3. The Mental Health Defendants, by their counsel, filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, ECF No. 23, and Houck filed a Cross-Motion for Summary Judgment. ECF No. 25.
The gravamen of Houck's Complaint is that medical providers prescribed Risperdal
Houck asserts that he has been taking Risperdal "for a long time." ECF No. 3 at 7. He claims that he filed sick call requests to the WCI Mental Health Service on August 29, 2016, September 14, 2016. June 20, 2016. May 4, 2016. February 26, 2016, May 5, 2016, December 1, 2015, and December 2, 2015, asking to be taken off Risperdal, ECF No. 3 at 4. He claims that on August 30, 2016, he told "Ms. Karen" about the side effects and asked to stop the Risperdal. He also asserts that he Hied an Administrative Remedy Procedure Request. Id. at 5. As relief. Houck seeks damages of $10 million or other payment, Id. at 3. On August 23, 2016. the Court granted Houck twenty-eight days to Hie an Amended Complaint to provide the names of the individuals he believed were responsible for the alleged wrongdoing. ECF No. 2 at 1, On September 14, 2016, Houck filed an Amended Complaint which named as Defendants "Wexford Health Services Inc. and by the Maker of Medication Risperdal, Inc. by Health Care Staff at WCI and by Mental Health Service Staff at WCI by Medical Department of Psychology Services at WCI." ECF No. 3 at 1.
Mindful that Houck is self-represented and has made repeated efforts to raise allegations about suffering negative side effects from using Risperdal,
Houck has filed two Motions to Amend the Complaint. ECF No. 34: ECF No. 41, In his Motion to Amend the Complaint, filed on March 22, 2017, Houck asks to add Janssen Pharmaceuticals of New Jersey ("Janssen"), a private corporation and the manufacturer of Risperdal, as a Defendant in this proceeding, but does not identify a legal basis for his request. ECF No. 34. To state a viable claim for relief under if 1983, Houck must allege that Janssen deprived him of his constitutional rights while acting under color of state law. See Am. Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); see also West v. Atkins, 487 U.S. 42, 48 (1988). Private action may he deemed state action, for purposes of § 1983, only where the challenged conduct may "be fairly attributable to the Slate." Lugar v. Edmandson Oil Co., 457 U.S. 922, 937 (1982). Here, Houck has not alleged facts to support a claim that Janssen was acting under color of law, Consequently, the Motion to Amend the Complaint. ECF No. 34. will be denied as futile.
Houck's second Motion for Leave to Amend the Complaint asks to add Dr. Siracusano as a Defendant in this case. ECF No. 41 at 1. As Dr. Siracusano is already a defendant, the Motion. ECF No. 41, will be denied as moot. Houck also filed two virtually identical Motions for a Preliminary Hearing, ECF No. 26; ECF No. 43. The Motions pertain to slate preliminary hearings for criminal defendants and provide no factual or legal basis for conducting a preliminary hearing in this case. Consequently, the Court will deny both Motions. Id.
A complaint fails to state a claim if it does not contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2), or does not state "a plausible claim for relief." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Though the plaintiff is not required to forecast evidence to prove the elements of the claim, "the complaint must allege sufficient facts to establish" each element. See Goss v. Bank of Am., N.A., 917 F.Supp.2d 445, 449 (D. Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)). aff'd sub now., Goss v. Bunk of Am., N.A., 546 F. App'x 165 (4th Cir. 2013). The pleadings of self-represented litigants are "liberally construed" and held to a less stringent standard than pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). In considering a Rule 12(b)(6) motion, the Court must construe the Complaint in the light most favorable to the Plaintiff and take the facts asserted as true. See Harrison v. Westington Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Malkari, 7 F.3d 1130, 1134 (4th Cir. 1993)).
"When `matters outside the pleading are presented to and not excluded by the court, the [12(b)(6)] motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Laughlin v. Metro, Wash, Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998) (quoting Fed. R. Civ. P. 12(b)). Under Rule 56(a), the Court must grant summary judgment if the moving party demonstrates there is no genuine issue as to any material fact and the moving part) "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In reviewing a motion for summary judgment, the Court must draw all justifiable inferences in the non-moving party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). A "material fact" is one that might affect the outcome of a party's case. Id. at 248; see also JKC Holding Co. v. Wash, Sports Ventures. Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldeva, 249 F.3d 259. 265 (4th Cir. 2001)).
"A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of [his] pleadings' but rather must set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The Court should "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in [his] favor without weighing the evidence or assessing the witness' credibility." Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The court must, however, also abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)).
If the parties have tiled cross-motions for summary judgment, the Court "must consider each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Bacon v. City of Richmond, 475 F.3d 633, 637-38 (4th Cir. 2007) (internal quotation marks omitted). "`Both motions must be denied if the court finds that there is a genuine dispute of material fact. But if there is no genuine dispute and one or the other party is entitled to prevail as a matter of law, the court will render judgment.'" Hicks v. Stanford No. ELH-14-928, 2016 WL 7426139, at *5 (D. Md. Dec. 23, 2016) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2720 (4th ed.)).
In order to demonstrate constitutionally inadequate medical care in violation of the Eighth Amendment, a prisoner must prove two elements: "(1) that objectively the deprivation of a basic human need was sufficiently serious, and (2) that subjectively the prison officials acted with a sufficiently culpable slate of mind." See Johnson v. Ouinones, 145 F.3d 164, 167 (4th Cir. 1998) (quoting Wilson v. Setter, 501 U.S. 294, 298 (1991)). The objective element "is satisfied by a serious medical condition," and the subjective element "is satisfied by showing deliberate indifference . . ." Id. "[D]eliberate indifference entails something more than mere negligence [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Id. (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)). Deliberate indifference to a serious medical need requires proof that, objectively, the prisoner was suffering from a serious medical need and that, subjectively, prison staff was aware of the need for medical attention but failed either to provide it or ensure the needed care was available. See Farmer, 511 U.S. at 837.
The treatment provided "must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." See Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990) (citation omitted). A defendant must know of and disregard an excessive risk to inmate health or safety. "[T]he [Defendant] must both he aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference." Farmer, 511 U.S. at 837. The Mental Health Defendants state in declarations that they did not prescribe Risperdal for Houck, ECF Nos. 23-2, 23-3, 23-4, and 23-5. Defendant R. Shane Weber, former WCI Supervisor of Psychological Services, attests that he does not prescribe medication because he is not licensed to do so. ECF No. 23-2. Weber stales that Dr. Siraeusano prescribed Risperdal for Houck. Id.
Melanie Gordon, who is employed by the DPSCS as a Menial Health Professional Counselor and is Acting Mental Health Professional Counselor-Supervisor, attests that she is not licensed to prescribe psychotropic medications and that psychotropic medications are prescribed by a licensed psychiatrist. Gordon states that Dr. Siraeusano prescribed Houck's Risperdal, and that all psychotropic medications are monitored through the psychiatrist and MHM Services, Inc.
In his Cross-Motion for Summary Judgment. Houck reasserts that he Hied sick call slips and an ARP concerning the side effects he attributes to Risperdal. ECF No. 25. He claims that he talked to Siraeusano, but does not state the date or substance of the conversation. ECF No. 25 at 2. Houck filed a number of attachments with the Motion, for instance, Houck filed a copy of a sick call slip stamped on September 16, 2016, asking to be taken off Risperdal because it was causing him breast
Houck does not claim he notified these mental health practitioners of his concerns in regard to Risperdal
Assuming that Houck's alleged side effects are serious, Houck fails to satisfy the subjective component of the deliberate indifference standard because he does not show the Mental Health Defendants were aware of his condition, nor did they have the ability to address any concern. Thus, even when Houck's allegations arc viewed in the light most favorable to him. he fails to show there is a genuine issue of material fact as to whether the Mental Health Defendants knew of his serious medical need and acted with reckless disregard in violation of Houck's constitutional rights. Accordingly, the Mental Health Providers' Motion for Summary Judgment will be granted. ECF No. 23. Houck's Cross-Motion for Summary Judgment will be denied. ECF No. 25.
Wexford asserts that Houck's claims are barred by the affirmative defense of res judicata. ECF No. 29-2. Res judicata is a legal doctrine that "bars a parly from relitigating a claim that was decided or could have been decided in an original suit." Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 161 (4th Cir. 2008). For res judicata to be established there must be "`(1) a final judgment on the merits in a prior suit. (2) an identity of the cause of action in both the earlier and the later suit, and (3) an identity of parties or their privies in the two suits . . .'" See Pension Ben. Guar. Corp. v. Beverley, 404 F.3d 243, 248 (4th Cir. 2005) (quoting Jones v. S.E.C., 115 F.3d 1173, 1178 (4th Cir. 1997)). Res judicata precludes a claim after a judgment on the merits in a prior suit by the same parties on the same cause of action. See Meckins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991) (citing Harnett v. Billman, 800 F.2d 1308, 1312 (4th Cir. 1986)). In addition, "`[n]ot only does res judicata bar claims that were raised and fully litigated, it prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.'" Id. (quoting Peugeot Motors of Am., Inc. v. E. Auto Distrib., Inc., 892 F.2d 355, 359 (4th Cir. 1989)).
Wexford argues that in an earlier filed suit, Houck v. Wexford. Civil Action No. GJH-15-3639 (D. Md. 2016). Houck alleged that Wexford and its employee Dr. Barrera violated his rights under the Eighth Amendment by acting with deliberate indifference to his serious medical needs. ECF No. 29-2 at 2. Houck alleged, as he does here, that he was prescribed Risperdal to treat his bi-polar disorder and schizophrenia, that the medication caused him gynecomastia and other negative side effects, and that his blood pressure was not checked daily. Id. On April 26. 2016, Wexford and Dr. Barrera tiled a Motion to Dismiss or in the Alternative for Summary Judgment supported by Dr. Barrera's affidavit and Houck's verified medical records. In his affidavit, Dr. Barrera attested that he did not prescribe Risperdal for Houck. did not have authority to alter Houck's mental health medication regimen, that Houck never complained to him about Risperdal's side effects, and had he been made aware by Houck of these concerns. Dr. Barrera would have referred Houck to his treating mental health providers. Sec Houck, GJH-15-3639 (ECF No. 31-5 at 2).
Dr. Barrera also stated that Houck is regularly evaluated by prison medical providers as a chronic care inmate, and prescribed multiple medications to manage his blood pressure. Id. (ECF No. 31-5 at 2-4). Medical providers check Houck's blood pressure, review his blood pressure medications, and monitor his compliance with medical orders. Id. Daily monitoring is not necessary, because Houck is on an appropriate drug regimen for hypertension. These medications include Atenolol, Norvasc, Lisinopril, and Clonidine HCL, Id. Further, Dr. Barrera stated that Houck's hypertension is properly controlled when he complies with his hypertension plan of care. Id. Houck filed no affidavits or other exhibits to refute Dr. Barrera's affidavit or the medical records tiled by Wexford and Dr. Barrera in support of their dispositive pleading.
To establish res judicata, there must be (1) a final judgment on the merits in the prior suit; (2) an identity of the cause of action: and (3) an identity of the parties or their privies. See Meekins, 946 F.2d at 1057. Wexford satisfies all three requirements. Houck raised the same claims here as in in his prior case. Houck v. Wexford, Civil Action No. GJH-15-3639, against the same Defendant, Wexford, and that case was considered on the merits, and a final judgment was entered. Consequently, the claims raised against Wexford are barred by res judicata, and the Motion to Dismiss will be granted.
Finally. Dr. Siraeusano moves to dismiss the Houck's Amended Complaint for failure to state a claim upon which relief may be granted, and asserts that he is entitled to qualified immunity.
Houck alleges he was prescribed Risperdal "for a long time." and the drug caused him various negative side effects including gynecomastia and blurred vision. ECF No. 1; ECF No. 3. Houck documents that he was prescribed Risperidone at WCI, and that he requested to be taken off Risperdal, Id.; ECF No. 25-3. The Menial Health Defendants' affidavits indicate that Siracusano prescribed Risperdal for Houck. ECF Nos. 23-1, 23-2, 23-3, 23-4, and 23-5. Houck claims in his Motions for Summary Judgment that he asked Siracusano to discontinue the Risperdal on December 5, 2016. January 11, 2017, and January 30, 2017, due to negative side effects he attributes to using the medication. ECF No. 33 at 2; ECF No. 37 at 2. Houck's Reply. ECF No. 37, repeats his allegations that he notified Dr. Siracusano about Risperdal and the negative side effects Houck experienced.
Houck states a plausible claim for relief and Dr. Siracusano's Motion to Dismiss. ECF No. 35, will be denied. Viewing Houck's allegations in the light most favorable to him, it is also clear there are genuine issues of material fact in dispute including, but not limited to, whether Houck alerted Dr. Siracusano to the negative side effects, when Siracusano was alerted to Houck's medical concerns, what actions Dr. Siracusano took in response, whether Houck was forcibly administered Risperdal or able to decline the medication, and whether Dr. Siracusano's actions in allegedly continuing the prescription despite Houck's concerns amounted to deliberate indifference. According, the Court shall deny Houck's Motions for Summary Judgment, ECF No. 33; ECF No. 37, subject to renewal. A scheduling order shall issue.
For the foregoing reasons, the Mental Health Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, treated as a Motion for Summary Judgment, ECF No. 23, is granted. Houck's Cross Motion for Summary Judgment, ECF No. 25, is denied. Wexford Health Sources. Inc.'s Motion to Dismiss. ECF No. 29, is granted. Dr. Vincent Siracusano's Motion to Dismiss. ECF No. 35, is denied and a scheduling order shall issue. Houck's Motions for a Preliminary Hearing, ECF No. 26; ECF No. 43. are denied. Houck's Motions for Summary Judgment. ECF No. 33; ECF No. 37, are denied without prejudice. Houck's Motion to Amend the Complaint. ECF No. 34, to add Janssen Pharmaceuticals as a Defendant is denied. Houck's Motion to Amend the Complaint to add Dr. Siracusano as a Defendant. ECF No. 41, is denied as moot. A separate Order follows.
