Burkey v. Balt. Cnty.
| Decision Date | 30 August 2021 |
| Docket Number | GJH-20-2006 |
| Parties | ROBERT L. BURKEY, III, Plaintiff, v. BALTIMORE COUNTY, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
While incarcerated at the Baltimore County Detention Center (“BCDC”) in Towson, Maryland, self-represented Plaintiff Robert L. Burkey, III filed this 42 U.S.C. § 1983 action against Defendants Baltimore County and BCDC (collectively, “County Defendants”), and PrimeCare Medical Inc. (“PrimeCare”).[1] ECF No. 1. The Complaint, which Burkey supplemented several times, alleges that he was subjected to unconstitutional conditions of confinement at BCDC correctional and medical staff were deliberately indifferent to his medical needs, and PrimeCare staff violated the Health Insurance Portability and Accountability Act (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996). ECF Nos. 1, 5, 6, 8 &15. Pending before the Court is County Defendants' Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment, ECF No. 17, and Defendant PrimeCare's Motion to Dismiss, ECF No 19.[2] No hearing is necessary. See Loc. R. 105.6 (D. Md 2021). For the following reasons, County Defendants' Motion is granted, in part, and denied, in part, and PrimeCare's Motion is granted.
In his unverified Complaint and its supplements, Plaintiff alleges that, at approximately 4:30 pm on April 14, 2020, he was confined to his cell when several surrounding cells began to overflow with sewage. ECF No. 1 at 2.[4] After correctional staff were made aware of the issue, they shut off running water to all toilets, including Plaintiff's, but they did not properly clean the unit. Id. at 3; see also ECF No. 8 at 3. From April 14 through April 18, Plaintiff was forced to remain in his cell with standing waste in the toilet and mold growing on the floors, walls, and bunks. ECF No. 1 at 3; ECF No. 5 at 4; see also ECF No. 8 at 3. According to Plaintiff, the sewage and mold problems have continued intermittently since. See ECF No. 8 at 3; ECF No. 5 at 4. Additionally, Plaintiff alleges he was not provided a meal or medication on April 14, ECF No. 1 at 2-3, and that from April 14 through at least April 20, “all medical sick calls were ignored completely . . . no matter how urgent.” ECF No. 5 at 2. Plaintiff also alleges that since April 14, he has not been provided his daily hour of exercise. ECF No. 1 at 3.
Plaintiff next raises allegations concerning the food provided to inmates. First, Plaintiff alleges that since March 2020, correctional staff have not served hot meals twice a day. ECF No. 1 at 3. Second, Plaintiff alleges that, on July 8, 2020, he received a bagged lunch that had been chewed by a rodent. ECF No. 5 at 3-4; ECF No. 6 at 2, 5. Plaintiff further alleges that he has received spoiled milk and meat as well as moldy bread on other occasions. ECF No. 1 at 3; ECF No. 5 at 4; ECF No. 6 at 5. According to Plaintiff, eating the spoiled and rodent-infested food has caused vomiting, acid reflux, and other lasting stomach problems. ECF No. 6 at 3, 5.
Plaintiff further alleges that the correctional staff have failed to follow protocols aimed at the prevention of the spread of COVID-19-specifically, the staff have not practiced social distancing, have not worn masks or have lowered the mask when speaking to Plaintiff, and did not replace their gloves after each use. ECF No. 1 at 3; ECF No. 5 at 4. Plaintiff's requests for face masks and COVID-19 tests were also denied. ECF No. 5 at 4.
Finally, Plaintiff alleges various problems with his medical care. He alleges first that he has been denied tuberculosis tests. ECF No. 1 at 3. He further alleges that he has improperly been given his medication in crushed-up form, id. at 4; EF No. 5 at 3, and was not given medication at all on July 16, 2020, and “several other afternoon[s], ” ECF No. 5 at 5. Plaintiff alleges that medical staff members have discussed his physical and mental health issues in front of other inmates and correctional staff, violating his privacy and subjecting him to verbal abuse by other inmates. ECF No. 1 at 4; ECF No. 5 at 3. And, in his final supplement to the Complaint, Plaintiff alleges that an X-ray on October 9, 2020, revealed a fracture in his right leg below his knee. ECF No. 15 at 3. Plaintiff alleges that he had pain in his legs since August 2020, but the staff deliberately did not diagnose or treat him, instead transferring him from a bottom bunk to a top bunk with no ladder to “inflict more pain” on Plaintiff. Id. Plaintiff alleges that they did so in retaliation for his filing this lawsuit. Id.
According to Plaintiff, he sought to file complaints regarding the above allegations, but correctional staff refused to provide him forms. ECF No. 5 at 4. When he was able to file grievances, they were either rejected or did not receive responses. ECF No. 1 at 2; ECF No. 5 at 2, 4. Plaintiff states that he was unable to appeal the grievances because the original forms disappeared-he believes they were likely destroyed. ECF No. 8 at 2; ECF No. 15 at 2.
According to County Defendants, on April 9, 2020, Administrative Captain Daniel Swain issued an email stating that, effective immediately, all staff and inmate workers were required to use surgical masks. ECF No. 17-11 at 2. Then, on April 13, 2020, Captain Swain issued a second email stating that a modified lockdown would begin at midnight. ECF No. 17-5 at 2. The lockdown meant that “only one dorm at a time [were] permitted in the dayroom for exercise time on a rotating basis.” Id. An emergency food menu was issued, and a dietician for Aramark Correctional Serviced, LLC, found that it met nutritional guidelines. 17-6; ECF No. 17-8. The emergency menu initially featured breakfast and lunch meals served cold due to limited staffing. ECF No. 17-7.
County Defendants assert that, on April 14, 2020, the inmate population in housing unit 3H refused their meal bags. ECF No. 17-9 ¶ 7. Additionally, a “large number” of those inmates flooded their housing section. Id. ¶¶ 9-10. The following day, April 15, 2020, Building Operations unclogged toilets, removed trash, and cleaned water from the floor. Id. ¶¶ 10-11. According to an affidavit by BCDC Gang Intelligence Sergeant Ryan McDowell, who reviewed video footage of housing unit 3H from the relevant time frame, Sergeant McDowell “observed building operations staff [] removing uniforms, sheets, blankets, mattress material and copious amounts [of] trash from said toilets and pipes.” Id. ¶ 11. However, McDowell noted that mop buckets did not enter the unit as scheduled on April 14, April 15, or April 16, 2020. Id. at 6. With regard to April 16, McDowell states, “no documentation was discovered supporting any reason for cleaning supplies not to be distributed.” Id.
Defendants also point to a log showing Plaintiff was provided an hour of exercise time on April 16, 2020. ECF No. 17-10. Additionally, according to an email sent on April 16, 2020, the emergency menu was to change to include a hot lunch meal on April 18, 2020. ECF No. 17-7.
Finally, regarding Plaintiff's medical care, Defendants state that “the modified lockdown also affected inmates' ability to move to the medical facilities.” ECF No. 17-2 at 4; ECF No. 1712 ¶¶ 3-4. Nevertheless, medical staff spoke to inmates in “a secure corridor where staff or inmates cannot overhear, ” id. ¶ 4, and Plaintiff received mental health treatment in a “Medical Treatment area where he telecommunicates with a psychiatrist, ” id. ¶ 6. Defendants also state that, as a default, medical protocol requires staff to crush all psychotropic medication unless it cannot be crushed. Id. ¶ 10.
Plaintiff filed suit on July 8, 2020. ECF No. 1. Plaintiff then supplemented the Complaint on July 20, 2020, ECF No. 5, July 29, 2020, ECF No. 6, August 10, ECF No. 8, and October 15, 2020, ECF No. 15. Although Plaintiff was required to move for leave to amend the Complaint after the initial supplement on July 20, 2020, see Fed.R.Civ.P. 15(a), because Defendants had not yet filed their responsive motions, and because Plaintiff is proceeding pro se, the Court will consider Plaintiff's supplemental pleadings here. However, any further amendments must be accompanied by a motion for leave.
County Defendants filed a Motion to Dismiss or for Summary Judgment on November 2, 2020. ECF No. 17. Defendant PrimeCare filed a Motion to Dismiss on November 5, 2020. ECF No. 19. Plaintiff opposed both motions. ECF Nos. 24 & 30. Defendants did not file replies.
A motion to dismiss pursuant to Rule 12(b)(6) “tests the sufficiency of the claims pled in a complaint.” Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019). To overcome a Rule 12(b)(6) motion, a complaint must allege sufficient facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
In evaluating the sufficiency of the plaintiff's claims “a court ‘must accept as true all of the factual allegations contained in the complaint,' and must ‘draw all reasonable inferences [from those facts] in favor of the plaintiff.'” Retfalvi v. United States, 930 F.3d 600, 605 (4th Cir. 2019) (alteration in original) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)). However, the complaint must contain more than “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual...
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