Bost v. Wexford Health Sources, Inc., Civil Action No. ELH-15-3278

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen L. Hollander United States District Judge
PartiesSHARON BOST, individually and as the personal representative of the ESTATE OF FATIMA NEAL, Plaintiff, v. WEXFORD HEALTH SOURCES, INC. et al., Defendants.
Docket NumberCivil Action No. ELH-15-3278
Decision Date23 July 2018

SHARON BOST, individually and as the personal representative of the
WEXFORD HEALTH SOURCES, INC. et al., Defendants.

Civil Action No. ELH-15-3278


July 23, 2018


This case arises from the tragic death of Fatima Neal ("Ms. Neal" or the "Decedent") on November 4, 2012, at the age of 42.1 Ms. Neal suffered multiple strokes while detained at the Women's Detention Center ("WDC"), which is part of the Baltimore City Detention Center ("BCDC"). She died one day before she was due to have a probation violation hearing. ECF 212-2 (Declaration of Angel Maes, Assistant Manager, Clerk's Office, Circuit Court for Baltimore City) at 4, ¶ 6; see also ECF 233-5 (Autopsy Report, signed by Doctor Theodore King, Jr., Assistant Medical Examiner, Office of the Chief Medical Examiner, dated January 25, 2013) at 10. At the relevant time, Ms. Neal was receiving medical care from employees of Wexford Health Sources, Inc. ("Wexford") at the WDC infirmary (the "Infirmary").

In the First Amended Complaint (ECF 56) ("Amended Complaint"), plaintiff Sharon Bost, the Decedent's mother, individually and as the personal representative of the Estate of Fatima Neal, filed suit against Wexford and numerous individuals: Anike Ajayi, R.N.; Elizabeth

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Obadina, R.N.; Ebere Ohaneje, R.N.; Najma Jamal, R.N.; Karen McNulty, R.N.; Andria Wiggins, P.A.; Getachew Afre, M.D.; Jocelyn El-Sayed, M.D.; Oby Atta, C.R.N.P.; and twenty-five unnamed medical service providers (collectively, the "Medical Defendants"). ECF 56, ¶¶ 29-39.2

Plaintiff also sued the State of Maryland ("State"); BCDC; and various State employees: Shavella Miles, Security Chief; Captain Carol McKnight; Lieutenant Valerie Alves; Officer Cierra Ladson;3 Gwendolyn Oliver, Assistant Warden of BCDC; Ricky Foxwell, Assistant Warden of BCDC; Carolyn Atkins, Assistant Commissioner, Department of Pretrial Detention and Services; Carol Harmon, Facility Administrator; and twenty-five unnamed "custody officers" (collectively, the "Custody Defendants"). Id. ¶¶ 40-48. All individual defendants were sued in their personal and official capacities. Id. ¶¶ 39, 49.4

Plaintiff has asserted multiple claims. As to all defendants, plaintiff asserts a claim of denial of adequate medical care, pursuant to 42 U.S.C. § 1983, based on alleged violations of the Eighth and Fourteenth Amendments (ECF 56, ¶¶ 153-68); denial of adequate medical care under Article 24 of the Maryland Declaration of Rights (id. ¶¶ 187-206);5 intentional infliction of

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emotional distress ("IIED") (id. ¶¶ 226-37); and wrongful death, pursuant to Md. Code (2013 Repl. Vol., 2017 Supp.), §§ 3-901 through 3-904 of the Courts and Judicial Proceedings Article ("C.J."). Id. ¶¶ 238-43.6 As to the Medical Defendants, plaintiff also alleges medical malpractice. Id. ¶¶ 207-17.7 Moreover, plaintiff alleges that Wexford is liable for the actions of its employees pursuant to the doctrine of respondeat superior. Id. ¶¶ 244-46. Further, plaintiff seeks indemnification from Wexford, BCDC, and the State for the actions of their employees. See id. ¶¶ 247-50.

The Custody Defendants have moved for summary judgment (ECF 212), supported by a memorandum of law (ECF 212-1) (collectively "Custody Defendants' Motion"), and a host of exhibits. See ECF 212-2 through ECF 212-23. The Medical Defendants have also moved for summary judgment (ECF 213), supported by a memorandum of law (ECF 213-1) (collectively "Medical Defendants' Motion"), and many exhibits. See ECF 213-3 through ECF 213-30; see

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also ECF 214 through ECF 214-3 (exhibits filed under seal by the Medical Defendants). Plaintiff has filed a consolidated response in opposition to the motions (ECF 228, "Opposition"). It is accompanied by more than 150 exhibits, some of which are redacted and some of which are filed under seal. See ECF 225-1 through ECF 225-159.8 Both groups of defendants replied and submitted additional exhibits. See ECF 241 ("Custody Defendants' Reply"); ECF 241-1 through ECF 241-23 (additional Custody Defendant exhibits); ECF 245 ("Medical Defendants' Reply"); ECF 245-1 and ECF 245-2 (additional Medical Defendant exhibits).9 In sum, the parties have filed more than 7,200 pages of motions, memoranda, and exhibits. See ECF 212; ECF 213; ECF 214; ECF 225; ECF 228; ECF 233; ECF 235; ECF 241; ECF 245.10

No hearing is necessary to resolve the summary judgment motions. See Local Rule 105.6. For the reasons that follow, I shall grant the Custody Defendants' Motion (ECF 212) as to all claims and all Custody Defendants, i.e., Miles, McKnight, Alves, Oliver, Atkins, Foxwell, Harmon, and the twenty-five unnamed custody officers. Additionally, I shall dismiss the case as to Ladson, although she has not appeared. Further, I shall grant the Medical Defendants' Motion

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(ECF 213) as to all claims against Atta and the twenty-five unnamed medical care providers. And, I shall grant the Medical Defendants' Motion as to the IIED claim.

However, I shall deny the Medical Defendants' Motion as to the deliberate indifference claim predicated on the Eighth Amendment, the Fourteenth Amendment, and Article 24 of the Maryland Declaration of Rights, as to Ajayi, Obadina, Ohaneje, Jamal, McNulty, Wiggins, Afre, and El-Sayed. I shall also deny the Medical Defendants' Motion as to the medical malpractice and wrongful death claims lodged against Ajayi, Obadina, Ohaneje, Jamal, McNulty, Wiggins, Afre, and El-Sayed. Further, I shall deny the Medical Defendants' Motion as to plaintiff's assertion of respondeat superior liability as to Wexford. Because the claim for indemnification is premature, I shall not resolve that contention in the context of this Memorandum Opinion.

I. Factual Background11

The BCDC is a State correctional facility located in Baltimore City, operated by the Department of Public Safety and Correctional Services ("DPSCS"). See Md. Code (2017 Repl. Vol.), §§ 5-401(a), (b) of the Correctional Services Article ("C.S."); see also ECF 212-1 at 17. BCDC consists of multiple buildings, one of which is the WDC. ECF 212-1 at 17. The Commissioner of DPSCS is the appointing authority for BCDC employees, who are paid by the State. See C.S. § 5-202(c)(4); see also Md. Code (2014 Repl. Vol., 2017 Supp.), § 12-101(a)(1) of the State Government Article ("S.G."). See ECF 212-1 at 17.

Wexford is a medical care provider "contracted by the State to provide around-the-clock care" at BCDC. ECF 228 at 14; see also ECF 212-1 at 10. In November 2012, registered nurses ("R.N.") Ajayi, Obadina, Ohaneje, Jamal, and McNulty were employed by Wexford and worked

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at BCDC. See id. at 52-57. At that time, Certified Registered Nurse Practitioner ("C.R.N.P.") Atta, Physician Assistant ("P.A.") Wiggins, and physicians ("M.D.") Afre and El-Sayed were also employed by Wexford and worked at BCDC. Id.

Stacey Shumway, a Wexford Charge Nurse, is identified in the Medical Defendants' Motion as an "R.N. Deposition Expert." ECF 213-20 at 2-3. Shumway testified at her deposition (ECF 213-20) that in the fall of 2012, there were three shifts for Wexford staff working in the Infirmary. ECF 213-20 at 4. The day shift started at 8:00 a.m. and ended at 4:30 p.m. Id. The evening shift ran from 4:00 p.m. to 12:00 a.m. or 12:30 a.m. Id. And, the night shift began at 12:00 a.m. and ended at 8:00 a.m. or 8:30 a.m. Id.; see also ECF 213-26 (McNulty Deposition) at 3-4. According to Shumway, the Infirmary was "always staffed" by Wexford employees. ECF 213-20 at 3.

Nurse McNulty testified at her deposition that during the day shift, the Infirmary was staffed by a doctor and either "two RNs" or an R.N. and a Licensed Practical Nurse ("L.P.N."). ECF 213-26 at 3. According to McNulty, the nurses reported to the doctor on duty during the day shift. Id. at 4. During the evening and night shifts, the Infirmary was staffed either by "two RNs" or "one RN and one LPN." Id. at 4. McNulty stated that doctors were "not typically" in the Infirmary during the evening shift and were never at the Infirmary during the night shift. Id. Additionally, McNulty averred that physician assistants and nurse practitioners were never staffed at the Infirmary during the evening and night shifts. Id.

During the evening and night shifts, nurses working in the Infirmary reported either to a "PA or nurse practitioner" stationed in the BCDC "general population." Id. And, during evening and night shifts, an "on-call" physician could be reached by telephone. See ECF 213-28 (Deposition of Getachew Afre, M.D.) at 4. According to Doctor Afre, the on call physician shift

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"starts around 4:30 p.m." and lasts "until the morning, until 8 o'clock in the morning" the following day. See ECF 225-49 (Afre Deposition) at 29.


Ms. Neal was arrested on September 7, 2012 (ECF 212-4 at 4, Trial Summary), and charged on September 8, 2012, with possession of marijuana, pursuant to Md. Code (2012 Repl. Vol., 2017 Supp.), § 5-601(a)(1) of the Criminal Law Article. See ECF 225-4 at 14 (Commitment Pending Hearing, dated September 8, 2012). As to the possession of marijuana charge, bond for Ms. Neal was set at $5,000. See ECF 225-4 at 4.

However, the Circuit Court for Baltimore City lodged a Detainer, ordering no bail for Ms. Neal as to "Bench Warrant No. 208149026." See ECF 212-4 at 2 (Detainer of September 8, 2012); ECF 212-2 (Declaration of Maes) at 3, ¶ 7; ECF 212-3 at 2 (Circuit Court for Baltimore City Criminal Docket, listing "208149026" as the "Case Number" for Ms. Neal's criminal proceedings). The "CHARGE" for which Ms. Neal was to be detained was specified as "viol narc laws (FTA)." ECF 212-4 (capitals in original). The Detainer pertained to a Bench Warrant issued for Ms. Neal (ECF 212-4 at 12) after she failed to appear for a probation violation hearing on August 8, 2011. See id.; see also ECF 212-2 at 3, ¶ 5.

Pursuant to the Detainer, Ms. Neal was held at WDC. See ECF...

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