McDonald v. Bishop, Civil Action No. GLR-19-3380

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
PartiesNEAL EUGENE McDONALD, Plaintiff, v. FRANK B. BISHOP, Warden, et al., Defendants.
Docket NumberCivil Action No. GLR-19-3380
Decision Date22 March 2021

FRANK B. BISHOP, Warden, et al., Defendants.

Civil Action No. GLR-19-3380


March 22, 2021


THIS MATTER is before the Court on Defendant Holly Pierce's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 15), and Defendant Frank B. Bishop's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 17).1 The Motions are ripe for review, and no hearing is needed. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will grant in part and deny in part the Motions, which the Court construes as motions for summary judgment.


A. McDonald's Allegations

Plaintiff Neal Eugene McDonald is an inmate housed at the North Branch Correctional Institution in Cumberland, Maryland ("NBCI"). (Compl. at 1, ECF No. 1).2

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McDonald brings this action against NBCI Warden Frank B. Bishop, who is employed by the Maryland Department of Public Safety and Correctional Services ("DPSCS"), and Holly Pierce, a nurse practitioner who is assigned to NBCI and employed by Corizon, Inc., and Wexford Health Services.3 (Id. at 2, 4, 5).

McDonald claims generally that Defendants have violated his medical and religious rights by refusing to replace his medical allergen diet, which avoids peanuts and eggs, with a religious kosher diet. (Id. at 4, 7). McDonald claims that he does not have life-threatening food allergies and the medical allergen diet is not necessary. (Id. at 8). McDonald also asserts that while it is documented that peanuts and eggs cause him to have excessive bowel movements, there is no documentation in his medical records showing that he is allergic to these food items. (See Compl. Exs. at 12, 15, 31, ECF No. 1-1).

In support of these allegations, McDonald submits a copy of an email thread dated September 7, 2016, which shows that McDonald was permitted to switch from the medical allergen diet to the religious diet while he was housed at the Western Correctional Institution ("WCI").4 (Id. at 15). In the email, Galen Beitzel, Administrative Chaplain at WCI, states that he was with McDonald when he opted out of the medical allergen diet. (Id.). The note indicates that Beitzel "made sure [McDonald] understood that peanut butter and eggs were served on the Religious Diet" and that "he could die if he was allergic to

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peanut butter and/or eggs," to which McDonald responded that "he was only on [the medical allergen diet] to avoid a lot of bowel movements." (Id.).

McDonald also states that on August 31, 2018, he signed a DPSCS Release of Responsibility ("ROR") form in order to be removed from the medical allergen diet. (Compl. at 5-6; Compl. Exs. at 13, 14). By signing the ROR, McDonald acknowledged that he had "been counseled by the medical and/or dietary staff that diet plays a critical role in the management [and] prevention of [his] disease" and that he "understand[s] fully the potential adverse impact of a regular diet on [his] disease." (Compl. Exs. at 14). The ROR further states that McDonald "hereby exercise[s] [his] right to refuse [his] medical diet and understand[s] that a regular diet will be substituted." (Id.).

McDonald alleges that Certified Registered Nurse Practitioner ("CRNP") Katrina Opel approved the ROR on September 11, 2018, but Defendant Pierce later stated she did not feel comfortable signing off on the forms. (Compl. at 6). The exhibits to McDonald's Complaint, however, include a note from CRNP Opel dated September 11, 2018, regarding McDonald's medical diet. (Compl. Exs. at 12). The note states that "McDonald has filed ARPs in the past for getting eggs on his tray," McDonald gets "hives and facial swelling from eggs," and McDonald was advised he cannot discontinue the medical diet because eating eggs "can lead to possible anaphylaxis" and "put[s] him at medical risk." (Id.). In a handwritten note on this exhibit, McDonald explains that Opel's note "points to a conspiracy between medical and dietary" to prevent him from discontinuing the medical allergen diet. (Id.).

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McDonald also submits several Administrative Remedy Procedure ("ARP") requests in support of his claims. (See Compl. Exs. at 22-45). In an ARP appeal dated October 23, 2018, McDonald states that he is an Ethiopian Jew and the kosher religious diet is a form of worship. (Id. at 38). Additionally, in an ARP dated February 11, 2019, McDonald states he was "approved for kosher diet by Rabbi Tobesman in 2018." (Id. at 28).

McDonald alleges that on May 9, 2019, in the presence of Defendant Pierce and NBCI Correctional Officer Sowers, McDonald ate peanut butter to demonstrate he was not allergic. (Compl. at 6). As proof, McDonald submits a signed declaration from Officer Sowers dated May 13, 2019. (Compl. Exs. at 1-2). The declaration states that on May 9, 2019, Sowers witnessed McDonald "eat a scoop" of peanut butter in the presence of Pierce, who told McDonald that she would contact Opel if "no one calls [Pierce] for an epi pen in an hour." (Id. at 1). Sowers states he is not aware of any calls made to medical on May 9, 2019 requesting an epinephrine injection for McDonald, and on May 12, 2019, he spoke to McDonald, who was "alive and well." (Id. at 2).

In an ARP dated May 10, 2019, McDonald documented the May 9, 2019 encounter with Pierce and complained that his medical file incorrectly reflected that he has life-threatening food allergies. (Id. at 26). McDonald requested that his medical records be corrected and that the referral be forwarded to the Dietary Department so that he could receive a regular diet. (Id. at 25-26). On June 10, 2019, Defendant Bishop dismissed McDonald's ARP, stating:

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An investigation revealed that you reported a food allergy to medical in August 2016, with documentation completed that you have an anaphylaxis reaction [to] peanut oil and eggs. You were evaluated by a provider on 5/9/19, where you expressed your disagreement with your documented allergy. At that time, no changes were made to your diet or allergies. You will continue to be monitored through the sick call process. Your administrative remedy allegations are without merit.

(Id. at 25). After Bishop denied McDonald's ARP, McDonald was forced to continue on the medical allergen diet. (Compl. at 7-8).

B. Medical Records

On March 25, 2016, McDonald submitted a sick call request stating that he had been issued a high calorie diet on December 21, 2014, but is allergic to peanuts, eggs, peppers, and fish. (Medical Records ["Med. R."] at 2, ECF No. 15-4). Nurse Noonan conducted a physical examination on March 28, 2016, during which McDonald reported the same allergies. (Id. at 3). Noonan noted that these allergies had not been previously recorded in the allergy section of McDonald's electronic patient health record. (Id.). McDonald was advised to avoid allergens until he could be seen by a provider to assess his allergies and the need for a high caloric diet. (Id.).

On April 8, 2016, McDonald was seen on sick call to discuss his allergies. (Id. at 6). Noonan advised McDonald to obtain his medical records from prior to his incarceration to expedite the process of assessing his allergies. (Id.). On August 18, 2016, McDonald was seen by Nurse Sue Brant to document his allergies to peanuts and eggs. (Id. at 10). During this visit, McDonald stated that "his throat swells from peanuts and eggs." (Id.). The same day, a medical diet referral form was completed by the health care provider to note

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McDonald had an allergy to peanuts and eggs and that consumption "causes tongue and throat edema." (Id. at 9). On September 6, 2016, however, a health care provider completed a medical diet referral form noting that McDonald wanted the "kosher diet only." (Id. at 12).

On February 21, 2017, McDonald completed a sick call request for replacement eyeglasses. (Id. at 13). On the sick call slip, McDonald indicated he was allergic to eggs and peanut oil. (Id.). On February 23, 2017, a health care provider completed a medical diet referral form for McDonald noting an egg and peanut allergy. (Id. at 14).

On July 3, 2017, McDonald submitted a sick call slip asking to be seen by a medical provider to "sign-off on food allergies of peanut butter." (Id. at 15). McDonald subsequently met with Nurse Krista Self on July 17, 2017. (Id. at 16). During this visit, McDonald requested to "sign off the p-nut allergy diet." (Id.). McDonald explained that he develops diarrhea after eating peanut butter and "most of the time" he was provided with meal trays containing peanut butter, which "causes more of an issue" and at times prevents him from eating. (Id.). The medical records also state that McDonald "need[ed] to continue to with egg allergy as it causes hives and facial swelling." (Id.). Nurse Self noted that "[p]aperwork was completed and faxed to dietary." (Id.). It does not appear, however, that the peanut allergy was discontinued from McDonald's chart at that time. (Decl. of Holly Pierce, CRNP ["Pierce Decl."] ¶ 12, ECF No. 15-3).

On September 14, 2017, McDonald submitted an ARP indicating that he received a scoop of peanut butter in his breakfast tray even though he is allergic to peanut butter. (Med. R. at 18). McDonald's complaint further stated that he was "allergic to eggs and

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peanut butter" and he went through the medical process to receive paperwork and an identification card noting his allergies. (Id.). McDonald stated that giving him peanut butter was "intentionally being done" and that "[s]omeone is trying to kill" him because "a food that can kill [him]" was "placed on [his] tray for consumption" even though his tray was clearly labeled "NO EGG-NUT." (Id.). McDonald's ARP was dismissed without merit on September 26, 2017. (Id. at 19-20). The investigator found that "McDonald did accidentally receive a breakfast tray with peanut butter" and was offered another tray...

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