Gary v. Department of Public Safety and Correctional Services

Filing 27

MEMORANDUM OPINION. Signed by Judge Benson Everett Legg on 1/24/12. (jmk, Deputy Clerk)(c/m 1/25/12)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TRAVIS DEVON GARY, #358-878
Plaintiff

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v.

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DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONAL SERVICES,
et al.
Defendants

CIVIL ACTION NO. L-11-963

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MEMORANDUM OPINION
Pending are Defendants Department of Public Safety and Correctional Services,1 Officer
Belton, and Officer Millburn’s Motion to Dismiss or for Summary Judgment (ECF No. 20) and
Plaintiff’s response (ECF Nos. 22 and 23). Upon review of papers and exhibits filed, the Court finds
an oral hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2011).
Background
Plaintiff alleges that on October 14, 2010, while housed at the Eastern Correctional
Institution (“ECI”) he was stabbed repeatedly by another inmate. ECF No. 1. Plaintiff states that
Officer Millburn was in charge of the daily operation of the housing unit and Officer Belton was the

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Under the Eleventh Amendment to the United States Constitution, a state, its agencies and departments are
immune from suits in federal court brought by its citizens or the citizens of another state, unless it consents. See Penhurst
State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984). While the State of Maryland has waived its sovereign
immunity for certain types of cases brought in State courts, see Md. State Gov't. Code Ann., ' 12-202(a), it has not
waived its immunity under the Eleventh Amendment to suit in federal court. Thus, Plaintiff=s Complaint against the
Department of Public Safety and Correctional Services, an agency within the State of Maryland, is barred by the
Eleventh Amendment.

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wing tier officer. Plaintiff alleges that the tier had “just come off lock down that morning so officers
should have known something was going on.” ECF No. 5. Plaintiff states that if the officers had
supervised the unit differently the assault would not have occurred. Id. Plaintiff was ultimately
transported to Shock Trauma as a result of the attack and indicates he continues to suffer physical
and psychological symptoms arising from the attack. Id.
Standard of Review
Summary Judgment is governed by Fed. R. Civ. P. 56(a) which provides that:
The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat
the motion:
By its very terms, this standard provides that the 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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
AThe 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. Baltimore 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
Aview the evidence in the light most favorable to . . . the nonmovant, and draw all inferences in her
favor without weighing the evidence or assessing the witness= credibility.@ Dennis v. Columbia
Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court must, however, also abide
by the Aaffirmative obligation of the trial judge to prevent factually unsupported claims and defenses
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from proceeding to trial.@ Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting
Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986)).
Analysis
Failure to Protect
Plaintiff alleges that all named Defendants were deliberately indifferent in failing to provide
adequate supervision and security to protect him and as such his right to be free from cruel and
unusual punishment has been violated. The Eighth Amendment does recognize this right. See
Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir. 1990).
As noted by the Supreme Court in Farmer v. Brennan:
Prison officials have a duty . . . to protect prisoners from violence at the hands of
other prisoners. Having incarcerated persons with demonstrated proclivities for
antisocial criminal, and often violent, conduct, having stripped them of virtually
every means of self-protection and foreclosed their access to outside aid, the
government and its officials are not free to let the state of nature take its course.
Prison conditions may be restrictive and even harsh, but gratuitously allowing the
beating or rape of one prisoner by another serves no legitimate penological objective
any more than it squares with evolving standards of decency. Being violently
assaulted in prison is simply not part of the penalty that criminal offenders pay for
their offenses against society.

511 U.S. 825, 833 (1994) (internal quotations and citations omitted). In a failure to protect claim, a
prisoner must show, first, that the harm he suffered was objectively serious, and second, that prison
officials acted with deliberate indifference. Id. at 834.
The undisputed evidence before the Court reveals that Plaintiff was stabbed repeatedly,
which cause him to suffer a lacerated inferior auricular. This required treatment in the prison
medical clinic, transfer to the local emergency room, and then transport to the University of

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Maryland Shock Trauma Hospital for further medical care. ECF Nos. 1, 5 and 20, Ex. A. Clearly,
Plaintiff has satisfied the first prong of the Farmer test. The second element is more problematic.
Deliberate indifference in the context of a failure to protect claim means that a defendant
"knows of and disregards an excessive risk to inmate health or safety; the official must both be
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. Unless a prison official actually
makes this inference, he does not act with deliberate indifference, even where his actions violate
prison regulations or can be described as stupid or lazy. Rich v. Bruce, 129 F.3d 336, 339-40 (4th
Cir. 1997); see also Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997) ("[T]he fact that an inmate
sought and was denied protective custody is not dispositive of the fact that prison officials were
therefore deliberately indifferent to his safety.").
As noted above, a prison official is deliberately indifferent when he possesses actual,
subjective knowledge of an excessive risk of harm to the prisoner=s safety and disregards it. Farmer,
511 U.S. at 837-39. The uncontroverted record evidence demonstrates that on October 14, 2010,
Defendant Belton observed several inmates quickly walking away from the lower C tier recreation
hall in Housing Unit 6. ECF No. 20, Ex. A, Internal Investigations Unit Report at 6. Belton notified
Defendant Milbourne, who was the sergeant and officer in charge of Housing Unit 6. Belton and
Milbourne went to the C tier to investigate and found Plaintiff standing in the shower bleeding and
applying pressure to a wound on his neck. They escorted Plaintiff to the on-site medical clinic
where he was examined and provided with initial treatment by Nurse Ellen Moyer. Moyer observed
that

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Plaintiff had suffered several stab wounds and lacerations to his back, shoulders, and head. Plaintiff
offered no explanation as to what had happened and could not or would not identify his attackers.
Id. at 16.
Immediately after the discovery of the assault, Housing Unit 6 was placed on lock-down,
which restricted movement of inmates in the area. Correctional staff did not recover the weapon(s)
used in the attack on Plaintiff. Id. at 2, 6 and 16. An internal investigation was undertaken and
Sergeant Sage was assigned to Plaintiff’s case. He interviewed Plaintiff on October 18, 2010.
Plaintiff refused to provide a statement and indicated that he did not wish to pursue the matter or
press criminal charges. Due to the lack of evidence and Plaintiff’s lack of cooperation, Sage closed
the investigation. Id. at 7. Defendants indicate that Plaintiff is a verified member of the “Bloods”
gang and it is believed that the attack upon Plaintiff was gang related. Id. at 31. Plaintiff states that
he is no longer affiliated with the “Bloods”, having left the gang in 2008. ECF Nos. 22 and 23.
There is simply no evidence before the Court that Defendants were deliberately indifferent to
Plaintiff=s safety. Rather, the evidence demonstrates that the officers on duty responded in a timely
and professional manner to a spontaneous assault upon Plaintiff. Plaintiff does not allege, nor is
there any evidence, that he notified any staff member that he was in fear for his safety prior to the
assault. Further, there is no evidence that any conduct of the named Defendants had any bearing on
the attack on Plaintiff or that any prison security policy was undertaken with a conscious disregard
for Plaintiff’s safety.
In a prison setting, confrontations among inmates are a daily occurrence as prisoners engage
in an unending struggle for position and power among themselves. Such altercations among inmates
are common and are, more than likely, ones with which prison staff are all too familiar. Advance

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notification of a substantial risk of assault posed by a particular fellow prisoner is not required to
sustain a claim under the Eighth Amendment, Farmer, 511 U.S. at 849. Moreover, the record is
devoid of evidence that Defendants were subjectively aware that Plaintiff was subject to an
excessive risk of harm. Plaintiff does not allege that he feared for his safety or undertook any effort
to notify Defendants or other prison officials that he feared for his safety. Nothing suggests that
Plaintiff told Defendants that he was likely to be assaulted by his assailants or the assailants were out
to cause him harm. Plainly, the assault was spontaneous and unexpected. In short, Plaintiff has
failed to come forth with any evidence that prison officials were, in fact, aware of an excessive risk
of harm to his safety.
Even if the Court could conclude that Defendants were aware of the risk of harm to Plaintiff,
the evidence of record simply is not sufficient to show that Defendants were deliberately indifferent
to the consequences that might flow from such risk. APrison officials who actually knew of a
substantial risk to inmate health or safety may be found free from liability if they responded
reasonably to the risk, even if the harm ultimately was not averted. A prison official's duty under the
Eighth Amendment is to ensure 'reasonable safety.'" Farmer, 511 U.S. at 844. There is nothing in
the record that suggests that the officers on duty did not respond promptly when they suspected
something was amiss, rather, they then immediately provided medical assistance to Plaintiff, locked
down the tier, and investigated the matter. Plaintiff has presented no evidence to show that
correctional employees failed to respond reasonably in the face of knowledge of the attack.
Plaintiff, the non-moving party, must establish the existence of a genuine issue of material
fact by presenting evidence from which a fact-finder could reasonably find in his favor. Plaintiff has
failed to submit evidence to support his claim, or to put the material fact of this case--the alleged

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failure to protect--in dispute. See generally Gray v. Spillman, 925 F.2d 90 (4th Cir. 1991).
Plaintiff’s Complaint describes nothing more than a spontaneous attack upon him, an incident all too
familiar in a prison context. There is nothing described in the actions of the named Defendants to
demonstrates that such conduct was undertaken with a conscious disregard for Plaintiff’s safety.
Accordingly, Defendants= Motion for Summary Judgment shall be granted.
Conclusion
Defendants’ Motion to Dismiss or for Summary Judgment shall be granted. A separate
Order follows.
/s/
_________________________
Benson Everett Legg
United States District Judge

January 24, 2012

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