King-Fields v. Montgomery County Correctional Facility et al
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 2/19/14. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. ELH-11-1491
ISIAH LEGGETT, et al.,
This suit arises from an altercation on October 4, 2010, involving plaintiff, Gavata KingFields,1 a detainee at the Montgomery County Correctional Facility (“MCCF”) in Boyds,
Maryland, and Emily Geller, a fellow detainee. As a result of the incident, plaintiff, then selfrepresented,2 filed suit pursuant to 42 U.S.C. § 1983. Three defendants remain: Deputy Warden
Susan Malagari, Correctional Specialist Carla Johnson, and Correctional Specialist Karalynn
Davis, all of whom worked at MCCF during the relevant time.3
Because plaintiff has indicated she no longer uses the surname “Fields,” I will refer to
her as Gavata King. Plaintiff is now incarcerated at the Maryland Correctional Institution for
Women (“MCI-W”) in Jessup, Maryland.
Plaintiff is now represented by pro bono counsel, pursuant to an Order entered on
February 23, 2012. See ECF 28, 30. See also ECF 31, 32, 33, 34. The Court wishes to thank
pro bono counsel for the time and effort he has expended in his representation of plaintiff.
Suit was filed against Montgomery County Executive Isiah Leggett; MCCF Director
Arthur Wallenstein; MCCF Warden Robert Green; MCCF Deputy Warden Susan Malagari;
MCCF Counselor Carla Johnson; MCCF Security Supervisor Captain Gail David; and MCCF
Case Manager K. Davis. Defendants moved to dismiss (ECF 14), which plaintiff opposed (ECF
16). In a Memorandum Opinion and Order dated January 23, 2013 (ECF 17, 18), I granted
defendants’ motion in part and denied it in part. Specifically, I dismissed all claims as to
defendants Leggett, Wallenstein, and Green, but I concluded that plaintiff alleged facts sufficient
to survive a motion to dismiss as to defendants Malagari, Johnson, David, and Davis. ECF 17 at
10. I also concluded that, to the extent plaintiff’s claims were premised on negligence, such
conduct was not actionable. ECF 17 at 12; ECF 18. Additionally, due to plaintiff’s subsequent
transfer from MCCF, I denied as moot her request for injunctive relief. ECF 17 at 12-13; ECF
Now pending is defendants’ motion for summary judgment (ECF 46, the “Motion” or
“Mot.”), which plaintiff opposes (ECF 56).4 In their Motion, defendants note that three claims
remain under 42 U.S.C. § 1983: (1) that plaintiff’s access to the courts was thwarted; (2) that
plaintiff was denied due process during her adjustment proceedings, and (3) that defendants
failed to protect plaintiff during her incarceration at MCCF. Mot. at 1-2; see also ECF 17
(Memorandum of January 23, 2012).
According to defendants, judgment in their favor is
18. However, I declined to decide defendants’ arguments concerning qualified immunity and
public official immunity in the context of the motion to dismiss. ECF 17 at 10-11.
During discovery, the parties stipulated to the dismissal of defendant David. Further,
plaintiff stipulated that she is not raising a claim regarding the medical care she received. ECF
42; see also ECF 43 (Order approving stipulation of dismissal). And, as discussed, infra,
defendants rely on qualified immunity in their summary judgment motion on a limited basis.
The Court has reviewed defendants’ Motion for Summary Judgment (ECF 46), as well
as the accompanying memorandum (ECF 46-1, “Mem.”); plaintiff’s Memorandum in Opposition
to Defendants’ Motion for Summary Judgment (ECF 56, “Opp.”); and defendants’ Reply to
plaintiff’s Opposition (ECF 57, “Reply”).
Defendants appended 22 exhibits to their Motion. See ECF 46-2 (Defendants’ Exhibit
List). The exhibits include, inter alia, the deposition of plaintiff (Exhibit 1); a drawing of
“pods,” used as an exhibit during the deposition of plaintiff (Exhibit 2); the Affidavit of Susan
Malagari (Exhibit 6); plaintiff’s handwritten adjustment hearing questions (Exhibit 7); plaintiff’s
Notice of Infraction (Exhibit 9); MCCF Inmate Discipline Policy (Exhibit 8); Recommendation
and Report of Administrative Action regarding King (Exhibit 10); a security video from A-Pod,
depicting the incident of October 4, 2010 (Exhibit 12, “security video”); the Adjustment Report
pertaining to plaintiff and the incident of October 4, 2010 (Exhibit 13); plaintiff’s MCCF
medical records (Exhibit 14); plaintiff’s medical records from MCI-W (Exhibit 15); excerpts
from Malagari’s deposition (Exhibit 18); excerpts from Johnson’s deposition (Exhibit 19);
MCCF’s Inmate Guidebook (Exhibit 20); excerpts from Davis’s deposition (Exhibit 21); and
Geller’s Notice of Infraction, dated Oct. 4, 2010 (Exhibit 22).
Plaintiff attached 14 exhibits to her Opposition. See ECF 56-2 (Plaintiff’s Exhibit List).
They include, inter alia, the deposition of plaintiff (Exhibit A); Johnson’s deposition (Exhibit B);
Davis’s deposition (Exhibit C); Malagari’s deposition (Exhibit D); a security video from A-Pod,
depicting the incident of October 4, 2010 (Exhibit E, “security video”); the Adjustment Report
pertaining to plaintiff and the incident of October 4, 2010 (Exhibit F); Recommendation and
Report of Administrative Action regarding Geller, Oct. 7, 2010 (Exhibit G); Inmate Medical &
Dental Health Request Slip dated October 5, 2010 (Exhibit I); the Affidavit of King (Exhibit J);
MCCF Inmate Discipline Policy (Exhibit K); plaintiff’s Notice of Infraction, dated Oct. 4, 2010
(Exhibit L); Inmate Request Form, dated Oct. 4, 2010 (Exhibit M); and Recommendation and
Report of Administrative Action regarding King (Exhibit N).
warranted as to all three aspects of plaintiff’s claims. Id. at 2. In her Opposition, plaintiff
advised that she is no longer pursuing a claim for denial of access to court. Opp. at 1 n.1; see
also, e.g., Ferdinand-Davenport v. Children’s Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010)
(“By her failure to respond to [defendant’s] argument” in dispositive motion, “the plaintiff
abandons [her] claim.”); Mentch v. E. Sav. Bank, FSB, 949 F. Supp. 1236, 1247 (D. Md. 1997)
(plaintiff’s failure to address in opposition brief an argument raised in defendant’s opening brief
constitutes abandonment of claim).
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons
that follow, I will grant the Motion.
I. Factual Background5
Plaintiff was housed as a pretrial detainee at MCCF between May 6, 2010, and October
20, 2010. Deposition of plaintiff, Oct. 22, 2012 (“King Dep.”) at 9. She was subsequently
convicted of multiple counterfeiting and theft charges, related to the counterfeiting of checks,
and is currently serving a sentence of more than 15 years’ imprisonment. See id. at 8-9.
During plaintiff’s detention at MCCF, Malagari was Deputy Warden of Programs and
Services. Deposition of Susan Malagari, Jan. 23, 2013 (“Malagari Dep.”) at 5-6. Johnson and
Davis served at MCCF as Correctional Specialists. Deposition of Carla Johnson, Jan. 23, 2013
(“Johnson Dep.”) at 6; Deposition of Karalynn Davis, Jan. 23, 2013 (“Davis Dep.”) at 6-7.
Davis reported to Johnson, who in turn reported to Malagari. See, e.g., Malagari Dep. at 9.
Of relevance here, MCCF’s female inmates are housed in one of two units, known as
N2.2 and N2.1. Mem. Exh. 6, Affidavit of Susan Malagari, Feb. 26, 2013, ¶ 3. If necessary,
inmates may also be housed in the medical unit. N2.2, known as the Program Pod, is for female
The facts have been construed in the light most favorable to plaintiff. In any event, the
facts set forth in this section are undisputed, unless otherwise noted.
inmates who have qualified for certain inmate programs and who are classified at the medium or
minimum security level. N2.1 is divided into four “pods,” designated as A, B, C, and D. Within
N2.1, A-Pod is for general population inmates assigned a classification level of medium or
maximum security; B-Pod is for general population inmates assigned a classification level of
minimum or medium security; C-Pod is pre-placement for inmates who lack medical clearance
to return to the general population, have yet to receive their inmate classification assignment, or
who are on disciplinary status; and D-Pod is the Crisis Intervention Unit for mental health-high
risk/high observation inmates, as well as those inmates on Special Management status.
The pods are separate locations, inaccessible to one another, and a correctional officers’
station is situated in the center of the four pods. Each pod has its own doorway separating it
from the officers’ station, as well as a full glass wall exposing each of the pods to the full view of
the officers’ station. Id.; see also King Dep. at 42-44; Mem. Exh. 2 (drawing of pods). Upon
plaintiff’s arrival at MCCF, she was initially assigned to N.2.1’s A-Pod. King Dep. at 13.6
Plaintiff met detainee Emily Geller upon entering MCCF. King Dep. at 11-12. Plaintiff
prayed with Geller and assisted her with legal work. Id. at 12. Around mid-September 2010,
plaintiff met another inmate, Patricia Torry, who was new to MCCF and was assigned to A-Pod.
Id. at 12-13. Within a week after arriving at MCCF, Torry began writing letters to plaintiff and
expressed interest in a “‘gay’ female relationship” with her. Id. at 13-14. Although plaintiff
would talk to Torry and give her snacks, she was not interested in a relationship with Torry and
While temporarily housed in the pre-placement unit upon arriving at MCCF, plaintiff
was disciplined for sending prohibited “jail mail” to another inmate. As a result of that violation,
she was assigned to a higher-security housing unit than she otherwise would have been. See
Davis Dep. at 23-25. Subsequently, plaintiff violated institutional rules for possessing
“contraband”—lip gloss and eyeliner—and, as a result, was removed from a “moral reconation
therapy program.” Id. at 25-26. As discussed, infra, at the summary judgment stage plaintiff has
abandoned any challenge to her housing classification at MCCF.
would “laugh it off.” Id. at 13-14, 20. Plaintiff acknowledged that she corresponded with Torry
through “jail mail” letters, which she knew to be in violation of MCCF rules. Id. at 20.
Shortly after Torry’s arrival in A-Pod, Geller was also transferred there from the Crisis
Intervention Unit (the “CIU”). Id. at 14-15, 19. Geller had been assigned to the CIU after
displaying suicidal behavior. Id. at 20. Within days of her transfer to A-Pod, Geller began “to
express an interest” in Torry. Soon, the two began to sit in a corner, away from the unit’s other
inmates, whispering to one another. Id. at 14-16.
During an “outburst” on September 22, 2010, Torry accused plaintiff of reporting her to a
correctional officer for passing notes with Geller. Id. at 16. Torry stated plaintiff was “hot,”
which, plaintiff explained, meant she was a “snitch.” Id. Geller and other inmates were present
for this exchange, but Geller said little and “didn’t really even take a stand.” Id. at 17. Plaintiff
testified at her deposition that although she was concerned for her safety after being “labeled a
snitch,” she did not perceive a threat from any particular inmate. Id. at 17-18. At the time of her
deposition, plaintiff could not recall having reported the September 22 incident to any MCCF
staff member. Id. at 22.
On the morning of September 23, 2010, while the inmates were located in A-Pod’s “day
room” common area, plaintiff spoke with a friend on the telephone, approximately 12 feet from
Geller and Torry. Id. at 22-25. Torry approached plaintiff and began “cussing [her] out,”
saying, among other things, that someone should “F [her] up” for being a “snitch.” Id. at 26-27.
Geller also became involved, cursing at plaintiff. Id. at 27-28. Plaintiff argued with them, using
“inappropriate” language as well. Id. at 28. As a result of this incident, plaintiff, Geller, and
Torry were each placed on a 24-hour cell restriction, in separate cells. Id. at 28-29.
While on lockdown, plaintiff could hear Torry shouting at her from her nearby cell,
saying: “‘[W]hen I get out tomorrow, I’m going to do X, Y, and Z to this B.’” Id. at 31. In
response, plaintiff collected letters she had received from Torry and waved them near her door,
threatening to turn in the letters to get Torry in trouble. Id. at 31-35. Plaintiff could also hear
Geller yelling, but could not understand what she was saying.
Id. at 35-36.
lockdown, plaintiff was in fear for her safety, from both Geller and Torry.
Id. at 29-30.
Accordingly, she pressed an emergency button located in her cell and asked an officer on
security rounds, “Ms. Baker,” to stop and talk with her. Id. at 32. However, neither Baker nor
any other officer responded. Id.
Further, while on lockdown after the incident of September 23, 2010, plaintiff wrote
letters to Malagari or “Captain David.” Id. at 29-30, 40.7 Although plaintiff could not recall the
exact contents of those letters, she had explained the situation and indicated that she felt
threatened by Geller and Torry. Id. at 40.8 Plaintiff could not recall writing any similar letters
describing threats prior to September 23, 2010. Id. at 40-41.
On the morning of September 24, 2010, after the 24-hour lockdown was over, Torry
came to plaintiff’s cell and told plaintiff that she “didn’t have any problems” with her. Id. at 37.
At her deposition, plaintiff indicated that, at the time, she believed Torry’s statement that they
“were okay.” Id. at 39.
In the afternoon of September 24, in response to plaintiff’s letter from the previous day,
Davis visited plaintiff’s cell and moved plaintiff to administrative segregation in D-Pod. Id. at
41-42; 44; Davis Dep. at 64. Although plaintiff acknowledged that she was transferred for her
Gail David is the MCCF official frequently referred to in the briefing and exhibits as
“Captain David.” See ECF 43.
Because plaintiff lacked access to a photocopier, she does not have a copy of that letter.
own protection, administrative segregation amounted to a 23-hour lockdown, so plaintiff felt as
though she was being punished. King Dep. at 41, 44-45.
Plaintiff wrote a letter to Captain David on September 25, 2010, asking to be removed
from administrative segregation. Id. at 45-47.9 At her deposition, plaintiff recalled that she
wrote “about Torry and I having the discussion the morning before, and that she said that she
didn’t have any problems with me.” Id. at 47. Plaintiff also said that, while she was “begging”
to be removed from administrative segregation, she felt as though it was safe to return even with
Torry and Geller remaining there. Id. at 48. In support of her request to leave administrative
segregation, plaintiff signed a release stating that she felt safe to return to A-Pod. Id. at 49.
Based on her request, plaintiff was removed from administrative segregation on the afternoon of
September 28, 2010, and returned to A-Pod. Id. at 49. Plaintiff asserts that no MCCF officials
conducted any investigation or followed up with her to confirm that she felt safe upon returning
to A-Pod, and defendants do not contest that point. See, e.g., Johnson Dep. at 15-16.
Although Torry had remained in A-Pod, plaintiff discovered upon returning that Geller
had been transferred from A-Pod to other housing. King Dep. at 49, 51. Tensions with Torry
persisted on September 28. When another inmate approached plaintiff to speak with her, Torry
warned the inmate to “‘stay away from that hot B,’” and continued to call plaintiff names for the
remainder of the afternoon. Id. at 52. At her deposition, plaintiff stated that, at that point on
September 28, she was in fear of Torry. Id. at 53. Although plaintiff did not notify the
corrections staff on September 28 of her concerns, she wrote another letter to Johnson and
Captain David, and placed the letter into the inmate mailbox on the morning of September 29.
As with the September 23 letter, plaintiff has no copy of that letter because she lacked
access to a photocopier. See id. at 45-46.
Id. at 54-56. Plaintiff described the incident, but could not recall whether the letter specifically
stated that she was afraid, nor did she recall asking them to do anything in particular. Id. at 55.
On the morning of September 30, 2010, Torry came to plaintiff’s cell and explained that
she (Torry) was being placed on lockdown until October 4 as discipline for writing “jail mail”
letters. Id. at 56-57. According to plaintiff, Torry was not mad, and although plaintiff did not
know why Torry had come to speak with her, she speculated that she may have been the only
person on the unit Torry felt she could tell. Id. at 57-58. The “jail mail” letters that resulted in
the discipline were not ones exchanged by plaintiff and Torry; plaintiff “had nothing to do with
it.” Id. at 58. At that point, plaintiff did not fear Torry, nor did she indicate to correctional staff
that she feared Torry’s return from lockdown on October 4. Id.
On October 2 or 3, 2010, Geller returned to A-Pod from disciplinary segregation, which
resulted from an incident unrelated to plaintiff. Id. at 59. Geller visited plaintiff’s cell, and the
two had what plaintiff described as a “girls’ session where we just talked about all of the lies that
Torry had been mixing up between she and I.” Id. at 61. Plaintiff showed Geller the letters from
Torry, in an effort “to bring back peace between she and I.” Id. Plaintiff testified that, as a result
of that conversation, she did not fear Geller, and believed she had resolved any problems with
Geller. Id. at 60, 62.
According to plaintiff, two other inmates told her that Geller and Torry had spoken on
October 3, while Torry remained on lockdown. Specifically, Geller told Torry that plaintiff had
shown her the letters that remained in plaintiff’s possession. Id. at 63-66.
On October 4, 2010—the day Torry was scheduled to return to A-Pod—plaintiff was
summoned to Davis’s office. Id. at 69. Torry, Johnson, and another officer, Captain Harold
Payne, were also present. Id. at 71-72. Plaintiff learned that Torry had requested the mediation.
In plaintiff’s view, Torry’s request for the mediation was an attempt to put “everything out in the
air so that [the] situation [with plaintiff] could be resolved.” Torry also sought to turn in
additional “jail mail” letters, written by Torry and in plaintiff’s possession, so that Torry could
avoid further discipline and “come off of lock[down] with a clean slate.” See id. at 72- 73.
In the course of the mediation, plaintiff and Torry told their versions of the recent events.
Id. at 74. Plaintiff acknowledged that she still had letters written by Torry, who did not want her
to have them any longer. At the suggestion of Davis, plaintiff agreed to retrieve the letters. Id.
An MCCF official, Officer Frazier, escorted plaintiff to her cell.
As they returned to the
mediation, other inmates, including Geller, observed plaintiff carrying the letters.
explained that the inmates would not have known that Torry had requested their surrender. See
id. at 74-76. In the latter portion of the mediation, Torry stated several times, regarding plaintiff:
“‘This B is a snake, and do you know what you do with a snake? You take a snake and you chop
its head off.’” Id. at 77.
As a result of the mediation, Davis concluded that although a more restrictive designation
of plaintiff and Torry as “separatees” was unwarranted, they nevertheless should be assigned to
different pods. Id. at 78-79. At her deposition, plaintiff stated she was satisfied with that
outcome, and that she felt it was a safe solution for her. Id. at 79. Davis’s decision was effective
immediately, so Torry was transferred from lockdown directly to B-Pod, rather than back to APod. Id. at 79-80.
As plaintiff returned to A-Pod following the mediation, the other inmates were in the
process of locking down after lunch. Id. at 80. At that time, Geller yelled insults at plaintiff,
along the lines of “‘that’s F’ed up B. Oh, you’re going to get yours.’” Id. at 80-81. However,
plaintiff acknowledged that, between the time she was locked in until dinner that evening, she
did nothing to address any fear of Geller. Id. at 81-82.
Subsequently, plaintiff and Geller, along with the five or six other inmates in A-Pod,
gathered in the day room for dinner. See id. at 84. At her deposition, plaintiff testified that she
was “fearful” because of the “whole environment” at that time, when “it was clear that
everybody was mad at me for giving up Torry’s letters and being a snitch.” Id. at 96. However,
at no time did plaintiff approach the guard window overlooking the day room, to express concern
or request to be placed in protective custody. Id. at 100-01. Further, although the inmates could
sit where they chose, plaintiff sat with her back to Geller. Id. at 92.
As the inmates ate, plaintiff began discussing the mediation that occurred earlier that day,
within earshot of Geller. Plaintiff explained that the mediation took place at Torry’s request. Id.
at 83, 92-93. When plaintiff explained that Davis had decided to house Torry in B-Pod, Geller
“went off,” stating: “I don’t believe this B. My MF’ing girl can’t come back over here[.]” Id. at
93; see also id. at 94 (“It didn’t seem that Geller became that enraged until she realized that
Torry wasn’t coming back on the unit with her.”). Plaintiff testified that, in response, she told
Geller: “‘Emily, you need to calm down and focus on your case. You’re about to go to court,
you know. I’m not going to argue with you. You’re the age of my child.’” Id. at 94.
Plaintiff recalled that Geller then stood up, followed by plaintiff, and the two “argu[ed]
back and forth in each other’s face[s.]” Id. Geller struck plaintiff, and the two became entangled
in a nearby exercise bike. Id. Plaintiff testified, id.:
So, we’re going back and forth fighting, and then Emily punches me in the lip,
and blood just start[s] gushing everywhere. I took my hand and looked at it, you
know, to see where the blood was coming from, and when I saw it was coming
from my mouth, I went to cover myself. And that’s when Emily struck me again,
got me down, dragged me, and just began to keep punching me in the face,
dragging me through my blood and kicking and kneeing me.
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In discovery, defendants produced the security video of the fight, which also contains a
time-stamp reflecting the duration of the incident and the timing of the MCCF staff’s
intervention. See Mem. Exh. 12 (security video from A-Pod.). The video depicts a seemingly
hostile exchange of words between Geller and plaintiff while they are seated at adjoining tables.
Defendants describe the security video as follows, id.:
The video shows that Geller stood up at 16:57:14; Plaintiff stood up at 16:57:15;
Geller and Plaintiff bumped chests at 16:57:18; Plaintiff chest-bumped Geller
backwards at 16:57:19; Plaintiff again chest-bumped Geller backwards at
16:57:20; physical fighting began at 16:57:21; Officer Tarner entered the pod at
16:57:30 to break up the fight; and the remaining emergency response team began
entering at 16:58:19.9[.]10
Although plaintiff characterizes these incidents differently than do the defendants, she
does not dispute this general timeline. Notably, the parties offer contrasting portrayals of the
response by Officer Tarner, the MCCF official present in the guard station adjoining A-Pod’s
day room. In plaintiff’s view, Officer Tarner “showed no immediate concern for King’s safety,”
“nonchalantly walked into the day room without any sense of urgency or concern for King’s
well-being,” and observed the altercation “from afar as the inmates fought and made no effort to
intervene even while Geller dragged King across the floor and repeatedly punched her.” Opp. at
18. Defendants, by contrast, emphasize that Officer Tarner entered the day room unaccompanied
by other officers, putting herself at risk and acting in violation of MCCF policy, which dictated
that she should have waited for other officials to arrive, rather than attempted to intervene on her
own. Mem. at 12 n.9.
The altercation ended when the “emergency response team came in, grabbed [Geller], put
their foot in her back, and locked her up.” King Dep. at 103. Plaintiff was escorted to the
I have reviewed the security video and it is generally consistent with this description.
It does not include any sound.
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medical unit and provided with ice. Id. She was then transferred to disciplinary segregation
pending an adjustment hearing to face charges for four infractions arising from the incident. Id.
at 105. Geller was also charged with infractions as a result of the incident. Mem. Exh. 22
(Geller’s Notice of Infraction, dated Oct. 4, 2010).
Plaintiff’s medical records from MCCF indicate that, following the fight on October 4,
2010, plaintiff had two small cuts on her bottom lip, experienced “slight swelling” as a result of
being punched in the eye, and had “minimal bleeding” that was “well controlled.” Mem. Exh.
14. Because of “light swelling” on the left side of her face and nose, plaintiff was given ice. Id.
On an Inmate Medical & Dental Health Request Slip dated October 5, 2010, i.e., the day after the
altercation with Geller, plaintiff reported pain in her left eye, stating that “it hurts to move [her]
eye-ball around,” and that her “whole body is aching,” including her neck, back, and the bridge
of her nose. Opp. Exh. I. Plaintiff was seen again the following day, October 6; her records note
a “small jagged superficial laceration” on her lower lip, but indicate that no bruising or cuts
appeared elsewhere on her face. Mem. Exh. 14. Although plaintiff reported pain in her left eye,
she declined to take Tylenol. Id. At her request, plaintiff underwent a series of nasal and facial
x-rays on October 11, 2010, all of which were negative. Id.
On October 23, 2010, three days after plaintiff’s transfer to MCI-W in Jessup, Maryland,
she underwent a physical intake examination.
Mem. Exh. 15 (plaintiff’s MCI-W medical
records). Those records make no mention of visible external injuries, nor do they note any
complaints raised by plaintiff concerning vision problems or headaches. Id. At her deposition,
however, plaintiff stated that she reported vision problems to MCI-W staff during the intake
process, and again during her first several months there. King Dep. at 137-38.
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At her deposition, plaintiff maintained that, following the incident, she experienced “very
bad headaches,” “knots to [her] head,” and blurred vision. King Dep. at 131. She claimed that,
on the date of her deposition (October 22, 2012), more than two years after the altercation, she
continued to experience double vision. Id. at 131-32.11
Plaintiff’s adjustment hearing was held on October 6, 2010. Johnson Dep. at 36-37.
Defendant Johnson conducted the adjustment hearing for plaintiff, as well as a separate
adjustment hearing for Geller. Id. at 42. In advance of the hearing, plaintiff was permitted to
identify witnesses she wished to appear on her behalf, and designated two individuals: Dana
Johnson (“Dana”) and Dina Lemus.12 King Dep. at 109. Plaintiff acknowledged that she
received and signed a copy of the charges brought against her. Id. at 111. She declined
representation in connection with the adjustment hearing.
Id. at 109, 110; Opp. Exh. L
(plaintiff’s Notice of Infraction, dated Oct. 4, 2010, stating that plaintiff did not want to be
Prior to the hearing, plaintiff compiled a list of questions that she intended to ask of her
witnesses at the hearing. King Dep. at 111. Defendants emphasize that plaintiff did not submit
the questions to MCCF staff to ask of the witnesses, as she believed her witnesses would be
present at the hearing. Id. at 111-112. On an Inmate Request Form dated October 4, 2010,
bearing a notation of “Attn: Ms. C. Johnson,” plaintiff asked defendant Johnson to speak with
her before the adjustment hearing, and to review the security video prior to the hearing. Opp.
The parties offer contrasting characterizations of plaintiff’s injuries; plaintiff states that
she “sustained substantial injury,” Opp. at 6, but defendants dispute that claim, emphasizing that
plaintiff “has identified no experts in the matter” and has provided “no evidence” and “no
medical documentation” to support her claim of serious injury. Mem. at 15.
Although the transcript uses the spelling “Deanna,” with “Deena” also appearing in the
submissions, I use “Dina,” the spelling used by the parties in the briefing. Additionally, I will
frequently refer to Dana Johnson as “Dana,” to distinguish her from defendant Johnson
(occasionally referred to as “defendant Johnson” for clarity).
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Exh. M (Inmate Request Form dated Oct. 4, 2010). The Inmate Request Form makes no mention
of witnesses or witness questions, but, in her Affidavit, plaintiff states that her purpose in
requesting to speak with defendant Johnson was to “submit questions to be asked of the
witnesses.” Opp. Exh. J, King Affidavit, July 12, 2013 (“King Aff.”) ¶ 5.
MCCF maintains an Inmate Discipline Policy (designated as “policy no. 1200-7”), the
applicable version of which became effective July 26, 2009. See Mem. Exh. 8; Opp. Exh. K
(MCCF Inmate Discipline Policy). Regarding witnesses at adjustment hearings, the policy
states, in part, id. at 9-10:
The inmate shall be given an opportunity to call witnesses in his/her defense,
provided institutional security or safety would not be jeopardized. The
Chairperson [of the Inmate Adjustment Committee] shall call those witnesses
(staff or inmate) who are reasonably available, and who are determined by the
Chairperson to be necessary for an accounting of the circumstances surrounding
the charge(s). In order to lessen the possibility of witness intimidation, the
accused inmate shall not be permitted to directly question the witnesses. The
members of the Adjustment Committee shall question the witness in private and
include any questions raised by the accused. Witnesses whose testimony would
be repetitious or irrelevant need not be called. Unavailable witnesses may be
asked to submit written statements; however, there must be good reason for not
calling a witness in person. The justification of this action shall be documented.
An inmate may rescind his/her request for witnesses by initialing the appropriate
space provided on the DCA-71.
When plaintiff arrived at the adjustment hearing, she learned that her witnesses would not
be present. King Dep. at 112-13. However, Johnson had previously interviewed one witness,
Dana Johnson; the other witness, Dina Lemus, had left MCCF on temporary release, and thus
was unavailable. Johnson Dep. at 39-40. According to plaintiff, defendant Johnson had not
advised her that one of the two witnesses would be unavailable; if she had done so, plaintiff says,
she would have identified an additional witness to testify on her behalf. King Aff. ¶ 6. Although
defendant Johnson noted in the Recommendation and Report of Administrative Action that
Lemus was unavailable due to her temporary release and that Dana had been interviewed prior to
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the hearing, Johnson did not explain why Dana was not called as a live witness or what she had
stated at her interview.
Mem. Exh. 10; Opp. Exh. N (Recommendation and Report of
Administrative Action, Oct. 8, 2010).
At the adjustment hearing, plaintiff was found guilty of all four infractions with which
she had been charged, and she was sentenced to 30 days of disciplinary lockdown. Id. at 114-15.
Plaintiff appealed her convictions, and one of the four guilty findings was overturned by
MCCF’s Warden. Id. at 115-16. At her deposition, plaintiff acknowledged that, during the
hearing, she was “given a full opportunity to tell [her] version of what happened on” October 4,
2010. Id. at 113. Nevertheless, plaintiff explained that her due process claim is premised on her
inability to present the testimony of her witnesses. Id.
Additional facts are included in the Discussion.13
II. Standard of Review
Defendants’ summary judgment motion is governed by Rule 56 of the Federal Rules of
Civil Procedure. It provides, in part: “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.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317,
322–24 (1986). A fact is “material” if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“A party opposing a properly supported motion for summary judgment ‘may not rest
upon the mere allegations or denials of [its] pleadings,’ but rather must ‘set forth specific facts’”
establishing a triable issue. Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th
Defendants’ opening memorandum also recounts facts that relate only to plaintiff’s
claim concerning denial of access to court. See Mem. at 13-14. It is unnecessary to recount those
facts, as plaintiff has abandoned that claim. See Opp. at 1 n.1; Ferdinand-Davenport, supra, 742
F. Supp. 2d at 777; Mentch, supra, 949 F. Supp. at 1247.
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Cir. 2003) (quoting former Fed. R. Civ. P. 56(e)), cert. denied, 541 U.S. 1042 (2004); accord
Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). In other words, the non-moving party
must show disputes of material fact so as to preclude the award of summary judgment as a matter
of law. Matsushita Elec. Indus. Co. v. Zenith, Radio Corp., 475 U.S. 574, 586 (1986). “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.” Liberty Lobby, 477
U. S. at 247-48 (emphasis in original).
In resolving a summary judgment motion, the court may not make credibility
determinations. Black & Decker Corp. v. United States, 436 F. 3d 431, 442 (4th Cir. 2006).
Moreover, the court must view all of the facts, including reasonable inferences to be drawn from
them, in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587; see
also FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013); Dennis v. Columbia Colleton Med.
Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The “judge’s function” in reviewing a motion for
summary judgment is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249. If “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party,” there
exists a dispute of material fact that precludes summary judgment. Id. at 248.
A. Failure-To-Protect Claim
Defendants argue that they are entitled to summary judgment on plaintiff’s failure-toprotect claim. See Mem. at 34-43. Plaintiff disagrees, arguing that disputes of material fact exist
that preclude summary judgment. Opp. at 16.
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1. Legal standard
Title 42 U.S.C. § 1983 establishes a cause of action against any person who, acting under
color of state law, “subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” of the United States. Section 1983 “‘is not itself a source
of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere
conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)).
It is well settled that pretrial detainees, such as plaintiff, “retain at least those
constitutional rights [held] by convicted prisoners.” Bell v. Wolfish, 441 U.S. 520, 545 (1979);
accord Patten v. Nichols, 274 F.3d 829, 834 (4th Cir. 2001). A failure-to-protect claim brought
by a pretrial detainee constitutes a due process claim under the Fourteenth Amendment, but the
same standards apply as for an Eighth Amendment claim brought by a convicted prisoner. See,
e.g., Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001); Grimes v. Warden, Baltimore City
Detention Center, 2012 WL 2575373, at *1 n.2 (D. Md. June 29, 2012) (Bredar, J.); Eastman v.
Warden, Baltimore City Detention Center, 2011 WL 210343, at *2 n.3 (D. Md. Jan. 21, 2011);
accord Smith v. Sangamon County Sheriff’s Dept., 715 F.3d 188, 191 (7th Cir. 2013); Goodman
v. Kimbrough, 718 F.3d 1325, 1331 & n.1 (11th Cir. 2013); Ervin v. Mangum, 127 F.3d 1099
(Table), 1997 WL 664606, at *4 (4th Cir. 1997).14
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an
inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). Under
the test set forth in Farmer, the deprivation “must be, objectively, sufficiently serious,” such that
Because the parties and relevant authority frequently refer to the Eighth Amendment
standard, I will occasionally do the same.
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the inmate “is incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834
(citations and quotation marks omitted). And, the “prison official must have a sufficiently
culpable state of mind,” which amounts to “deliberate indifference to inmate health or safety[.]”
Id. (citations and quotation marks omitted); accord Odom v. S.C. Dep’t. of Corr., 349 F.3d 765,
770 (4th Cir. 2003).
In Farmer, the Supreme Court clarified that “deliberate indifference” exists only where
“the official knows of and disregards an excessive risk to inmate health or safety[.]” 511 U.S. at
837. Under that standard, a plaintiff must make two showings. See Parrish ex rel. Lee v.
Cleveland, 372 F.3d 294, 303 (4th Cir. 2004). First, “the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists[.]”
Farmer, 511 U.S. at 837.
Under that prong, “[i]t is not enough that the officers should
have recognized it; they actually must have perceived the risk.” Parrish ex rel. Lee, 372 F.3d at
303 (emphasis in original). Second, the official “must also draw the inference.” Farmer, 511
U.S. at 837.
That is, “the evidence must show that the official in question subjectively
recognized that his actions were ‘inappropriate in light of that risk.’” Parrish ex rel. Lee, 372
F.3d at 303 (quoting Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997)). In other words,
“‘[d]eliberate indifference requires a showing that the defendants actually knew of and
disregarded a substantial risk of serious injury to the detainee . . . .’” Id. (quoting Young v. City
of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001)) (emphasis added in Parrish).
A showing of negligence “does not give rise to a constitutional claim when the operative
standard is ‘deliberate indifference.’” Brown, 240 F.3d at 391. As the Supreme Court explained
in Farmer, “an official’s failure to alleviate a significant risk that he should have perceived but
did not, while no cause for commendation, cannot under our cases be condemned as the
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infliction of punishment.” 511 U.S. at 837. Similarly, the Fourth Circuit has said: “Deliberate
indifference is a very high standard—a showing of mere negligence will not meet it.” Grayson
v. Peed, 195 F.3d 692, 695 (4th Cir. 1999). See also, e.g., Goodman, 718 F.3d at 1332 (“[T]he
deliberate indifference standard—and the subjective awareness required by it—is far more
onerous than normal tort-based standards of conduct sounding in negligence . . . .”); Parker v.
Maryland, 413 F. App’x 634, 638 (4th Cir. 2011) (subjective “deliberate indifference”
assessment “‘sets a particularly high bar to recovery’”) (quoting Iko v. Shreve, 535 F.3d 225, 241
(4th Cir. 2008)); Borello v. Allison, 446 F.3d 742, 749 (7th Cir. 2006) (stating that “[m]ere
negligence or even gross negligence does not constitute deliberate indifference,” and a failure to
protect amounts to a constitutional violation “only if deliberate indifference by prison officials
[to the prisoner’s welfare] effectively condones the attack by allowing it to happen”) (quotation
marks omitted; modifications in Borello); Rice v. Austin, 2003 WL 23350252, at *3 (D. Md. Feb.
20, 2003) (“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.”); Nichols v. Maryland Correctional Institution-Jessup, 186 F. Supp. 2d 575, 581 (D. Md.
2002) (Chasanow, J.) (stating that deliberate indifference is “a high standard to meet” and that a
“defendant who unsoundly, stupidly, or negligently fails to appreciate the risk is not liable . . . .”)
(citing Rich, 129 F.3d at 340).
Notably, the Supreme Court concluded in Farmer that “prison 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.” 511 U.S. at 844;
accord Brown, 240 F.3d at 390-91. The Eighth Amendment requires prison officials to ensure
“reasonable safety,” a standard that acknowledges prison officials’ “unenviable task of keeping
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dangerous [people] in safe custody under humane conditions[.]”
Id. at 845 (citations and
quotation marks omitted). Accordingly, “prison officials who act reasonably cannot be found
liable” under the Eighth Amendment. Id. See also, e.g., Prater v. Dahm, 89 F.3d 538, 542 (8th
Cir. 1996) (summary judgment for defendants proper where they were aware of risk to plaintiff
but took reasonable steps to address the risk); Short v. Smoot, 436 F.3d 422, 428 (4th Cir. 2006)
(officer who responds reasonably to danger to inmate not liable under Eighth Amendment, even
where further precautions could have been taken but were not); Stritehoff v. Green, 2010 WL
4941990, at *3 (D. Md. Nov. 30 2010) (“An officer who responds reasonably to ‘the risk of
which he actually knew’ is not liable for deliberate indifference.”) (quoting Brown, 240 F.3d at
2. “Deliberate indifference” by defendants15
The central issue is whether the conduct of the remaining defendants amounted to
“deliberate indifference.” As discussed above, the “deliberate indifference” standard requires a
showing of actual knowledge of a substantial risk on the part of a defendant prison officer, as
well as disregard of that risk. See Parrish ex rel. Lee, 372 F.3d at 303. Therefore, a court must
assess the subjective knowledge of an individual officer. In Brown, supra, 240 F.3d at 390, the
Fourth Circuit explained: “In determining the substantiality of the risk that [one defendant
officer, among several] knew, and the reasonableness of his response to it, we must consider
everything that he was told and observed.” See also, e.g., Bishop v. Hackel, 636 F.3d 757, 768
(6th Cir. 2011) (“[W]e must focus on whether each individual Deputy had the personal
Defendants argue, inter alia, that plaintiff’s claim fails because she has not shown that
her injuries were sufficiently serious to sustain liability. See Mem. at 36-38. However,
defendants cite no failure-to-protect cases from the Fourth Circuit establishing that a de minimis
injury is fatal to a failure-to-protect claim. And, as noted above, plaintiff offers a differing
account of the severity of her injuries. I need not decide whether the extent of plaintiff’s injuries
presents a barrier to liability, as I resolve the failure-to-protect claim on other grounds.
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involvement necessary to permit a finding of subjective knowledge.”); Dale v. Poston, 548 F.3d
563, 570 (7th Cir. 2008) (court must examine “what the officer knew and how he responded”);
Grieveson v. Anderson, 538 F.3d 763, 777-78 (7th Cir. 2008) (“Also problematic for [plaintiff] is
his failure to tie actions of the named defendants to the injuries he allegedly suffered . . . . Vague
references to a group of ‘defendants,’ without specific allegations tying the individual defendants
to the alleged unconstitutional conduct, do not raise a genuine issue of material fact with respect
to those defendants.”).
Odom, supra, 349 F.3d 765, in which the Fourth Circuit reviewed a district court’s grant
of summary judgment as to several prison guards, is also instructive. Id. at 771-72. In that case,
the Fourth Circuit assessed, in the light most favorable to the non-moving party, the evidence
regarding the knowledge of each defendant officer. Id. Because plaintiff brings failure-toprotect claims against all three remaining defendants, I will adhere to the approach used in Odom
and Brown, and evaluate each defendant’s conduct in the context of the information shown to be
known to her.
Turning first to Malagari, plaintiff asserts that she “had written to Defendant Malagari
advising that she felt threatened by Torry and Geller.” Opp. at 17 (citing King Dep. at 40). The
letter to which plaintiff refers is that of September 23, 2010, which, as plaintiff testified, “would
have been to Ms. Malagari or Captain David.” King Dep. at 40. Assuming that Malagari either
received the September 23 letter or learned of its contents, it is undisputed that MCCF officials
responded to the letter by transferring plaintiff to administrative segregation, for her protection.
At her own request, plaintiff voluntarily left administrative segregation on September 28.16 In
According to Malagari’s deposition testimony, she would not have had to approve
plaintiff’s transfer to administrative segregation, but would have received notification after the
fact. Malagari Dep. at 44-45, 49-50. Likewise, Malagari testified that she would not necessarily
have had to approve plaintiff’s release from administrative segregation. Although she would
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her Opposition, plaintiff points to no other knowledge or action by Malagari regarding the failure
to protect her; Malagari is not alleged to have been aware of or involved in any subsequent
events, including those leading up to the October 4 altercation. As a result, the evidence falls far
short of showing “deliberate indifference” on the part of Malagari.
Regarding Johnson, plaintiff notes that “King wrote a second letter, addressed to
Defendant Johnson, advising of the problems less than one week prior to the attack, but
Defendants took no action.” Opp. at 17 (citing King Dep. at 54-55). Although no party has
produced a copy of that letter, written on September 28, 2010, and sent the following day,
plaintiff testified that it was addressed to defendant Johnson and Captain David. According to
plaintiff, the letter described her concerns regarding Torry. King Dep. at 55. There is no
suggestion that the letter mentioned Geller, who at that time was not residing in A-Pod.
Furthermore, Torry was also transferred to lockdown shortly thereafter, on September 30, as
discipline for a “jail mail” infraction unrelated to her correspondence with plaintiff. Id. at 56-57.
And, Torry spoke with plaintiff at her cell shortly before her transfer to lockdown; plaintiff
acknowledged that at that time she did not fear Torry, who in any event never returned to A-Pod
prior to the altercation between plaintiff and Geller. Id. at 58.
Johnson was also present at the mediation involving plaintiff and Torry held on October
4, 2010, which she attended at Davis’s request. Johnson Dep. at 25. At the mediation, plaintiff
only expressed concern about her safety with regard to Torry; Geller was not discussed. Johnson
Dep. at 19, 29-32. Further, Johnson testified that she was unaware that plaintiff had ever said
she felt threatened by Geller, id. at 32, nor did Johnson know why plaintiff had been placed in
administrative segregation on September 23. Id. at 20. Plaintiff cites no evidence to the
have later been notified of plaintiff’s removal from administrative segregation, she could not
recall being involved in that decision as to plaintiff. See id. at 46-47.
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contrary. In short, the record is devoid of any indication that, prior to the incident on October 4,
2010, Johnson was aware of a danger posed to plaintiff by Geller. In the light most favorable to
plaintiff, the facts at most reflect Johnson’s awareness of plaintiff’s concerns regarding Torry,
who was transferred out of A-Pod on September 30, 2010, and never returned prior to the
October 4 altercation. As with Malagari, the evidence cannot sustain a finding of “deliberate
indifference” on the part of Johnson.
As for Davis, plaintiff argues that her “knowledge of the threats is evidenced by the fact
that she placed King in administrative segregation prior to the attack due to King’s continued
safety concerns.” Opp. at 17 (citing King Dep. at 41). At her deposition, Davis stated that
Captain David asked her to move plaintiff from A-Pod to administrative segregation. See Davis
Dep. at 58-59. Davis further testified, however, that she played no role in deciding whether to
place plaintiff in administrative segregation, and that Captain David never told her “specifically”
why plaintiff was being moved. See Davis Dep. at 58-59; see also id. at 57 (asserting that she is
“not privy” to letters Johnson received from inmates, such as plaintiff’s). According to Davis,
prior to the incident of October 4, 2010, her only awareness of tensions involving plaintiff and
Geller was through an incident report pertaining to September 23, 2010, which indicated that
Torry, Geller and plaintiff, while locked in their respective cells, had been arguing through vents.
Davis Dep. at 56.
Plaintiff testified that Davis told her that she was being placed on administrative
segregation “because of the letter [plaintiff] had written.” King. Dep. at 41. Viewed in the light
most favorable to plaintiff, at the very least Davis was aware that plaintiff had written a letter
that resulted in her transfer. See id. Notably, however, the record does not reveal whether Davis
was aware that plaintiff’s letter pertained to Geller.
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In addition, without referencing Davis by name, but citing Davis’s deposition in support,
plaintiff asserts in her Opposition: “Defendants returned King to A-pod where they knew Torry
and accused murderer Geller were housed without taking a single action to ensure her safety.
Between the date of King’s release from administrative segregation and the date of the attack,
Defendants took no action whatsoever to determine whether the conflict between these inmates
had subsided.” Opp. at 17 (citing Davis Dep. at 15-16).
However, regardless of Davis’s precise knowledge concerning plaintiff’s concerns and
whether they pertained to Geller, the uncontested facts make clear that plaintiff was placed in
administrative segregation for her own safety, and then sought to leave because she felt safe
returning to A-Pod.
Specifically, plaintiff wrote Captain David on September 25, 2010,
requesting to be removed from administrative segregation. King Dep. at 45-47. Although that
letter is not a part of the record, plaintiff testified at her deposition that she wrote “about Torry
and I having the discussion the morning before, and that she said that she didn’t have any
problems with me.” King Dep. at 47. Moreover, plaintiff confirmed at her deposition that, at the
time, she had genuinely believed Torry, and had also believed that it was safe for her to return to
A-Pod, even with Torry and Geller present. Id. at 47-48. Plaintiff’s deposition testimony
demonstrates that it was Davis who brought a release form to plaintiff, which she signed,
indicating that plaintiff felt safe to leave administrative segregation. See King Dep. at 48.
Davis also spoke with plaintiff on October 4 during the mediation involving plaintiff and
Torry, which occurred before the altercation between plaintiff and Geller. Davis Dep. at 51.
However, plaintiff points to no evidence suggesting that Geller’s name arose during the
mediation. Based on Torry’s conduct at the mediation, Davis responded reasonably by assigning
Torry to B-Pod, thus separating her from plaintiff. But, there is no indication that Davis either
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should have or actually did infer that any hostility of Torry toward plaintiff should be imputed to
Geller as well. Even when viewing the facts in the light most favorable to plaintiff, the evidence
cannot sustain a finding that any defendant actually perceived a risk that Geller posed to
plaintiff, let alone that they “recognized that [their] actions were ‘inappropriate in light of that
risk.’” Parrish ex rel. Lee, 372 F.3d at 303 (quoting Rich, supra, 129 F.3d at 340 n.2).
In my view, the three remaining defendants could be faulted, at most, for negligence in
failing to verify or investigate plaintiff’s safety between late September and October 4, 2010.17
Yet, it is well settled that negligence does not amount to “deliberate indifference” in the context
of a failure-to-protect claim. See, e.g., Brown, supra, 240 F.3d at 390 (affirming summary
judgment for defendant officer who admitted that he “took less action than he could have, and by
his own admission, should have” because, at most, conduct was negligent).
Dale, 548 F.3d 563, a Seventh Circuit case, is instructive. In Dale, the court upheld
summary judgment for defendants where the inmate plaintiff, an informant, “could have
remained in protective custody if he wanted,” but chose not to.
Id. at 570.
acknowledged that, given the “limited social opportunities,” protective custody “may not have
been the most pleasant of experiences”; nevertheless, “it would have eliminated the risk of an
Accordingly, the court concluded:
“Prison officials do not violate the Eight[h]
Amendment because the mode of protection they offer does not sit well with a prisoner. Rather,
if they offer reasonable protection from the threat, they have done their duty.” Id.; see also id. at
571 (where inmate declines to be placed in protective custody, prison officials who do not
transfer inmate are at most negligent and thus cannot be held liable under Eighth Amendment).
This comment should not be construed to suggest that any of the defendants was
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Here, the record is devoid of any suggestion that plaintiff raised concerns about Geller to
any MCCF official in the days preceding the incident of October 4, 2010, either during the
mediation or otherwise.
See Dale, 548 U.S. at 570 (court “cannot emphasize enough the
prisoner’s responsibility to furnish information” to prison officers regarding specific threats).
Further, no evidence exists that any defendant was on notice of escalating tensions between
Geller and plaintiff at any time after September 25, when plaintiff asked to leave administrative
segregation and believed she could return safely to A-Pod, even with Geller and Torry present.
3. Conduct by MCCF officials not involving remaining defendants
Certain knowledge or conduct involving MCCF officials cannot be attributed to any of
the three defendants, even when the facts are viewed in the light most favorable to plaintiff.
Such is the case with several incidents involving prison officials who are not among the three
remaining defendants, as there is no indication that any defendant learned of the facts at a time
when they could have, or should have, intervened. Under the “deliberate indifference” test
articulated in Farmer, no grounds exist for attributing responsibility to defendants where the
facts, viewed in plaintiff’s favor, do not show “‘that the defendants actually knew of and
disregarded a substantial risk of serious injury to the detainee . . . .’” Parrish ex rel. Lee, 372
F.3d at 303 (citation omitted).
Of import here, the doctrine of respondeat superior does not apply in § 1983 claims. See
Monell v. New York Dep’t of Soc. Serv., 436 U.S. 658, 691 (1978); Love-Lane v. Martin, 355
F.3d 766, 782 (4th Cir. 2004) (no respondeat superior liability under § 1983). Rather, individual
liability must be based on personal wrongdoing or supervisory actions that violate constitutional
norms. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.), cert. denied, 513 U.S. 813 (1994); Wright v.
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Collins, 766 F.2d 841, 850 (4th Cir. 1985); see also Foote v. Spiegal, 118 F.3d 1416, 1423 (10th
To establish supervisory liability against a warden or others under § 1983, a plaintiff
must show: “(1) that the supervisor had actual or constructive knowledge that his subordinate
was engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional injury to
citizens like the plaintiff”; (2) that the supervisor’s response to that knowledge was so
inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive
practices’; and (3) that there was an ‘affirmative causal link’ between the supervisor’s inaction
and the particular constitutional injury suffered by the plaintiff.” Shaw, 13 F.3d at 799. As to
the first element, the Shaw Court said, id. (internal citations omitted):
To satisfy the requirements of the first element, a plaintiff must show the
following: (1) the supervisor’s knowledge of (2) conduct engaged in by a
subordinate (3) where the conduct poses a pervasive and unreasonable risk of
constitutional injury to the plaintiff. . . . Establishing a “pervasive” and
“unreasonable” risk of harm requires evidence that the conduct is widespread, or
at least has been used on several different occasions and that the conduct engaged
in by the subordinate poses an unreasonable risk of harm of constitutional injury.
Here, plaintiff first alleges that, while in her cell during 24-hour lockdown on September
23, 2010, “and being continually threatened by Torry and Geller, she pleaded with officers to
intervene, but was rebuffed.” Opp. at 17 (citing King Dep. at 32).
however, establishes that the officer on duty was a “Ms. Baker,” who is not a defendant in this
action. See King Dep. at 32. Nor does plaintiff point to any evidence suggesting that any of the
three remaining defendants was aware of her requests for intervention at that time. At least one
defendant, Davis, learned of those events, but did so only later, upon receiving an incident report
indicating that Torry, Geller, and plaintiff had been arguing through vents while on lockdown.
Davis Dep. at 56. The events that occurred during the 24-hour lockdown preceded plaintiff’s
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transfer to administrative segregation on the afternoon of September 24, 2010. See King Dep. at
37. Accordingly, the record indicates that MCCF officials took action to protect plaintiff around
Second, plaintiff notes in her Opposition that, while a guard was escorting her from the
mediation to her cell on October 4, 2010, to retrieve “jail mail” letters that Torry sent to her,
other inmates saw plaintiff carrying the letters, and plaintiff could hear them saying that she was
turning in the letters as “retaliation” against Torry. Opp. at 5 (citing King Dep. at 75-76).
However, the officer who had accompanied plaintiff to her cell—an Officer Frazier—did not
remain in the mediation. See King Dep. at 75. Even if Officer Frazier could be faulted for
failing to recognize and act upon a risk to plaintiff based on what other inmates supposedly
observed, Officer Frazier is not a defendant. As for the three defendants, plaintiff points to no
evidence that they learned from Officer Frazier, or otherwise, either that other inmates had seen
plaintiff retrieving the letters, that Geller was among those inmates, or that the inmates had
assumed, mistakenly, that plaintiff was surrendering the letters on her own initiative in retaliation
Third, plaintiff’s claim is also premised on a failure to protect her once the altercation
began. Opp. at 18. According to plaintiff, the guard who was present, Officer Tarner, “showed
no immediate concern for King’s safety,” “nonchalantly walked into the day room without any
sense of urgency or concern for King’s well-being,” and observed the altercation “from afar as
the inmates fought and made no effort to intervene even while Geller dragged King across the
floor and repeatedly punched her.” Opp. at 18 (citing Opp. Exh. E and F). Critically, however,
the only prison official present at the start of the altercation, and whose conduct plaintiff
challenges—Officer Tarner—is not a defendant. Nor is there any indication that any defendant
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knew of the altercation at the outset. At the most, defendants’ liability can be premised on their
culpability in allowing Geller and plaintiff to remain together in A-Pod, with the level of
supervision provided, but not for the response that followed once the physical altercation began.
Further, plaintiff argues that, notwithstanding defendants’ awareness of threats to
plaintiff’s safety, MCCF did not provide “heightened security” in the day room, including by
having a guard physically present in day room itself, rather than relying on the guard watching
the inmates through a window. See Opp. at 18. Even assuming that MCCF should have
stationed a guard within the room itself, plaintiff points to no evidence that any of the three
defendants would have been responsible for making that decision. Nor would failing to do so
amount to “deliberate indifference,” rather than negligence, which is not actionable.18
Under the circumstances presented here, summary judgment for defendants is warranted
as to the failure-to-protect claim.
C. Due Process Claim Concerning Adjustment Hearing
Plaintiff contends that she was denied procedural due process in connection with her
adjustment hearing. In asserting that defendants are entitled to summary judgment, defendants
argue that plaintiff does not identify a deprivation of liberty that would trigger due process
Defendants also argue that, “[t]o the extent plaintiff claims that she was not properly
classified, or that she should not have been housed with Geller, there is no evidence to support
such a claim.” Mem. at 41. Because plaintiff pursues no such claim concerning her assigned
security level in her Opposition, I need not address the issue of plaintiff’s classification. See,
e.g., Ferdinand-Davenport, supra, 742 F. Supp. 2d at 777; Mentch, supra, 949 F. Supp. at 1247.
Notably, defendants invoke qualified immunity only once in connection with plaintiff’s
failure-to-protect claim, and do so only with respect to plaintiff’s classification. See Mem. at 42
(“Defendants would be entitled to qualified immunity because they were performing a
discretionary function and there is no evidence to establish that the Plaintiff’s classification, or
her housing assignment, were done in violation of any clearly established statutory or
constitutional right of which a reasonable person in Defendants’ position would have known.”).
Because plaintiff abandoned any challenge to her security classification, I need not discuss
qualified immunity in connection with plaintiff’s failure-to-protect claim.
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rights; that in any event plaintiff was afforded all procedural protections that due process
requires; that defendants are entitled to qualified immunity; and that summary judgment is
warranted to the extent plaintiff brings suit against defendants in their official capacities. Mem.
at 22-34.19 Plaintiff counters with a host of challenges to defendant Johnson’s handling of her
adjustment hearing, which plaintiff maintains did not comply with either “MCCF’s policy” or
“long-established procedural due process law.” Opp. at 8.
1. Due process rights in prison disciplinary hearings
The basic due process standards applicable to a prison disciplinary proceeding are set
forth in Wolff v. McDonnell, 418 U.S. 539, 556 (1974). As the Supreme Court explained in
Wolff, although prisoners “may not be deprived of life, liberty, or property without due process
of law,” their due process rights remain “subject to restrictions imposed by the nature of the
regime to which they have been lawfully committed.” Id. Accordingly, “there must be mutual
accommodation between institutional needs and objectives and the provisions of the Constitution
that are of general application.” Id.
Applying those principles, the Supreme Court held in Wolff that a prisoner facing a
disciplinary hearing is entitled to: (1) written notice of the charges, at least 24 hours before the
disciplinary hearing; (2) an opportunity “to call witnesses and present documentary evidence in
his defense when permitting him to do so will not be unduly hazardous to institutional safety or
correctional goals”; and (3) a “written statement by the factfinders as to the evidence relied on
and reasons for the disciplinary action” imposed. Id. at 564-66 (quotation marks and citation
Nevertheless, inmates are not entitled to a right of confrontation, nor are they
Defendants move for summary judgment in connection with the due process claim as
to all three defendants. See Mem. at 29 n.21. Plaintiff’s Opposition, however, addresses only
the conduct of Johnson. See Opp. at 8-15.
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guaranteed a right to counsel. Id. at 567-70;20 see Baxter v. Palmigiano, 425 U.S. 308, 322-23
(1976); Brown v. Braxton, 373 F.3d 501, 505-06 (4th Cir. 2004). Further, substantive due
process is satisfied where a disciplinary hearing decision is based upon “some evidence.”
Superintendent, Mass. Correctional Institute v. Hill, 472 U.S. 445, 455 (1985).
Regarding an inmate’s opportunity to call witnesses where no undue hazard to
“institutional safety or correctional goals” exists, the Court emphasized in Wolff: “Prison
officials must have the necessary discretion to keep the hearing within reasonable limits and to
refuse to call witnesses that may create a risk of reprisal or undermine authority . . .” 418 U.S. at
To that end, a prison official may refuse to call a witness for reasons including
“irrelevance, lack of necessity, or the hazards presented in individual cases.” Id.; see Brown v.
Braxton, 373 F.3d at 505 (“[A]fter Wolff, it was clearly established that prison officials had the
discretion to deny witness requests, where legitimate penological interests justified excluding a
witness.”); see also Ferreira v. Dubois, 963 F. Supp. 1244, 1253 n.16 (D. Mass. 1996) (“Prison
officials therefore have the discretion to deny live witness testimony where such testimony is
irrelevant or unnecessary.”).
In Ponte v. Real, 471 U.S. 491, 497 (1985), the Supreme Court built upon its holding in
[P]rison officials may be required to explain, in a limited manner, the reason why
witnesses were not allowed to testify, but . . . they may do so either by making the
explanation a part of the “administrative record” in the disciplinary proceeding, or
by presenting testimony in court if the deprivation of a “liberty” interest is
challenged because of that claimed defect in the hearing. In other words, the
prison officials may choose to explain their decision at the hearing, or they may
Specifically, the Court concluded in Wolff that rights to confrontation or crossexamination present “greater hazards to institutional interests,” and thus declined to require those
rights in connection with prison disciplinary proceedings. 418 U.S. at 567-68. The Court also
refused to recognize a general right to counsel at such proceedings, allowing only illiterate
inmates or those facing particularly issues to consult with a sufficiently competent inmate or staff
member. See id. at 569-70.
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choose to explain it “later.” . . . [S]o long as the reasons are logically related to
“institutional safety or correctional goals,” the explanation should meet the due
process requirements as outlined in Wolff.
The Ponte Court acknowledged that, given the “significant limitations on an inmate’s
right to call witnesses,” coupled with the deference to prison officials’ judgment recognized in
Wolff, “it may be that a constitutional challenge to a disciplinary hearing . . . will rarely, if ever,
be successful.” Id. at 499. As the Fourth Circuit explained in Brown v. Braxton, 373 F.3d at
505, “Wolff establishes beyond doubt” that disciplinary hearing officers “may decide that
legitimate penological interests justify the denial of an individual inmate’s witness request, and
their decisions are not to be lightly second-guessed by courts far removed from the demands of
prison administration.” Indeed, “[d]eference to prison administrators may mean upholding a
denial of a request even in situations [in which] the ‘denied witness might have provided
testimony to exculpate [the inmate],’ or where the reviewing court might have ruled differently
had it been conducting the hearing.” Shuck v. Bledsoe, 2005 WL 1862666, at *2 (W.D. Va. Aug.
3, 2005) (quoting Afrika v. Selsky, 750 F. Supp. 595, 601 (S.D.N.Y. 1990) (emphasis in Afrika)).
Nevertheless, the Ponte Court expressly rejected an approach that would “place the
burden of proof on the inmate to show why the action of the prison officials in refusing to call
witnesses was arbitrary or capricious.” 471 U.S. at 499. Accordingly, Ponte has been read to
hold that “‘the burden of persuasion as to the existence and sufficiency of such institutional
concerns [justifying the denial of an inmate’s request to call witnesses] is borne by the prison
officials, not by the prisoners.’” Smith v. Massachusetts Dept. of Correction, 936 F.2d 1390,
1399-1400 (1st Cir. 1991) (quoting Grandison v. Cuyler, 774 F.2d 598, 604 (3d Cir. 1985);
modification in Smith). Accord Bostic v. Carlson, 884 F.2d 1267, 1273 (9th Cir. 1989) (“The
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burden of proving adequate justification for denial of a request to present witnesses rests with the
2. Liberty interest
As an initial matter, defendants argue that plaintiff’s sentence of 30 days in disciplinary
segregation “does not invoke a liberty interest for which due process protections attach.” Mem.
at 26. Subsequent to Wolff, the Supreme Court held that “discipline in segregated confinement
[does] not present the type of atypical, significant deprivation in which a State might conceivably
create a liberty interest.” Sandin v. Conner, 515 U.S. 472, 486 (1995). Although the Fourth
Circuit has not addressed the issue, other circuits have concluded that Sandin governs the rights
of convicted prisoners but does not apply to pretrial detainees. See, e.g., Bistrian v. Levi, 696
F.3d 352, 373 (3d Cir. 2012); Surprenant v. Rivas, 424 F.3d 5, 17 (1st Cir. 2005); Rapier v.
Harris, 172 F.3d 999, 1003 n.2 (7th Cir. 1999); Mitchell v. Dupnik, 75 F.3d 517, 523 (9th Cir.
1996). Moreover, in Sandin the Supreme Court distinguished its decision in Bell v. Wolfish, on
the ground that Bell “dealt with the interests of pretrial detainees and not convicted prisoners.”
515 U.S. at 484. In my view, defendants fail to establish that plaintiff, as a detainee, lacked a
liberty interest in avoiding the penalty resulting from her adjustment hearing.
3. Due process
According to defendants, even if a liberty interest is implicated such that plaintiff’s
procedural due process rights were triggered, the undisputed facts show that plaintiff received
sufficient procedural protection. See Mem. at 31. As noted, plaintiff raises several challenges to
her adjustment hearing, including that she was denied her right to call live witnesses and to
present witness questions, in violation of both MCCF policy and constitutional due process
standards. Opp. at 8.
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Plaintiff’s due process claims center on Dana Johnson, another MCCF inmate who
plaintiff identified as one of two witnesses she wished to call on her behalf. Defendant Johnson
did not allow Dana to testify at plaintiff’s adjustment hearing on October 6, 2010. Plaintiff
argues that defendant Johnson has not established how calling Dana “would have been unduly
hazardous to institutional safety or correctional goals.”
Opp. at 10.
acknowledges that the MCCF Inmate Discipline Policy requires witnesses to be questioned in
private to prevent witness intimidation, she maintains that defendant Johnson has provided no
explanation, either in her deposition testimony or her post-hearing report, why she refused to call
Dana as a witness during the adjustment hearing.
Opp. at 10.
Plaintiff raises additional
challenges to the conduct of the adjustment hearing, relating to defendant Johnson’s alleged
failures to obtain witness questions that plaintiff had prepared, to advise plaintiff regarding
Lemus’s unavailability so as to enable her to identify a substitute witness, and to inform her
about the content of Dana’s interview statements. Id. at 10-11.
In the Recommendation and Report that defendant Johnson completed shortly after the
hearing, signed on October 7, 2010, she explained, in relevant part: “Ms. Fields requested two
witnesses, inmates Dana Johnson 10-2220 and Dina Lemus 10-5725.
Ms. Johnson was
interviewed prior to the hearing, however Ms. Lemus was not available, she was out on a
temporary release as [of] 10/05/2010.”
Mem. Exh. 10; Opp. Exh. N.
Recommendation and Report did not recount what Dana had stated in her interview. Nor did the
Recommendation and Report address the reason for the omission of the substance of Dana’s
interview from the report, or why Dana did not testify. See id.
At her deposition, Johnson explained her decisions concerning Dana. Among other
issues, Johnson addressed her efforts before the hearing to interview the two witnesses plaintiff
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had identified. Johnson’s interview of Dana was informal, and Johnson said she likely would
have taken notes “on a Post-it.” Id. at 40. Regarding Johnson’s discussion with Dana, the
following deposition colloquy is relevant, id.:
[Plaintiff’s Counsel:] What did Dana Johnson tell you?
[Defendant Johnson:] That she just observed -- what she observed in the fight,
what happened, that there was a verbal argument between the two of them and
that they basically both got up and came to each other.
[Plaintiff’s Counsel:] Did Dana Johnson assign responsibility for provocation?
[Defendant Johnson:] I wouldn’t say that she did, no. Based on what she said, I would
probably say that they both were equally provoking to each other.
Johnson also identified safety-related concerns as the reason for her decisions concerning
Dana. See Johnson Dep. at 44-45:
[Defense Counsel:] Now, in the adjustment portion of this case, when you
interview witnesses for this kind of incident like in this case, you don’t put
those witnesses from the inmates into those reports, isn’t that right[?]
[Defendant Johnson:] Right.
[Defense Counsel:] And as I understand it, that’s because the inmate gets a
[Defendant Johnson:] Right. So I don’t -- what you’re asking me is I
don’t necessarily put their full statement into the body of the report.
[Defense Counsel:] And why is that?
[Defendant Johnson:] Because we don’t want to incite or inflame tensions
because, again, they get a copy of the report, the inmates get copies.
[Defense Counsel:] So whatever opinions you would have formulated
about the incident of October 4, 2010 that you would have put in the
report would not have contained direct statements from other inmates
because of safety issues because the plaintiff would get a copy of that
[Plaintiff’s Counsel:] Objection.
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[Defendant Johnson:] Right.
* * *
[Defense Counsel:] [E]ven if plaintiff had given you questions to ask of
the witnesses, those witnesses don’t appear at the adjustment hearing for
the same safety reasons we just talked about; isn’t that right?
[Defendant Johnson:] That’s correct.
Plaintiff challenges the sufficiency of Johnson’s explanations on several grounds.
For one, plaintiff asserts that “[a]ny ‘safety concerns’ Defendant Johnson might advance
now are post hoc rationalizations premised on speculation and were not documented at the time
of the hearing.” Opp. at 11-12. That argument echoes the dissent in Ponte, in which Justice
Marshall warned that allowing prison officials to “explain in court, many months or years after a
disciplinary hearing, why they refused to hear particular witnesses” invites “post hoc courtroom
rationalizations.” 471 U.S. at 504 (Marshall, J., dissenting). The Ponte majority, however, made
clear that due process does not require a contemporaneous explanation. Rather, a subsequent
explanation, of the type Justice Marshall criticized, and which plaintiff now disputes, may be
sufficient. 471 U.S. at 497.
As for the substance of Johnson’s testimony, plaintiff challenges the adequacy of
Johnson’s reason why “it would have been unduly hazardous to institutional safety or
correctional goals to call witnesses during King’s disciplinary hearing.” Opp. at 11. Johnson
made clear that, under MCCF policy, charged inmates are barred from directly questioning
witnesses at an adjustment hearing. Johnson Dep. at 37-38; see MCCF Inmate Discipline Policy
(“In order to lessen the possibility of witness intimidation, the accused inmate shall not be
permitted to directly question the witnesses.”). As indicated, Johnson confirmed that, when she
“interview[s] witnesses for this kind of incident like in this case,” she “do[esn’t] put those
witnesses from the inmates into those reports[.]” Johnson Dep. at 44 (emphasis added). Further,
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Johnson justified her refusal to make plaintiff aware of Dana’s testimony by citing a desire to
avoid “inflam[ing] tensions.” Id. at 45. This justification is consistent with the concern for
“institutional safety or correctional goals” endorsed in Wolff, 418 U.S. at 566. See also Ponte,
471 U.S. at 497.21 And, in Brown v. Braxton, 373 F.3d at 505, the Fourth Circuit made clear that
decisions of hearing officers must not be “lightly second-guessed by courts far removed from the
demands of prison administration.”22
In addition to challenging Dana’s exclusion and the sufficiency of Johnson’s
explanations, plaintiff complains that Dana was never asked certain questions that plaintiff had
drafted before the hearing. However, plaintiff does not identify an actionable due process
violation based on any failure by Johnson to obtain witness questions from plaintiff.
Defendants argue that, because “Dana Johnson’s statement did not vindicate Plaintiff
as Plaintiff clearly hoped when identifying her as a witness,” Johnson’s stated security concerns
were “valid and justified.” Mem. at 25. However, Johnson did not articulate that specific
concern at her deposition. Although a prison official may refuse to call witnesses due to their
“irrelevance” or a “lack of necessity,” Johnson did not invoke those particular reasons in her
testimony. See Wolff, 418 U.S. at 566.
In Brown v. Braxton, 373 F.3d at 505, the Fourth Circuit observed: “Wolff did leave
open an important question that has divided the circuits: whether prison officials had to consider
witness requests on a case-by-case basis, or whether they could formulate regulations designed to
deal with such requests categorically.” It noted that, in Dalton v. Hutto, 713 F.2d 75, 78 (4th Cir.
1983), the Court had concluded that Wolff deemed “per se proscriptions against the calling of
certain categories of witnesses” to be a violation of due process. Id. Notably, the policy at issue
in Dalton deprived inmates of a right to call any witness who would not appear voluntarily. See
Dalton, 713 F.2d at 77-78. Although the Fourth Circuit acknowledged in Brown that, in the
wake of Ponte, “there has been a growing recognition that prisons may develop witness request
policies for sensible reasons,” the Court declined to revisit its decision in Dalton at that time.
See 373 F.3d at 505 n.*; see also, e.g., McGuinness v. Dubois, 75 F.3d 794, 799-800 (1st Cir.
1996); Powell v. Coughlin, 953 F.2d 744, 749 (2d Cir. 1991).
It is not clear that Johnson failed to consider the pertinent circumstances when she
disallowed Dana’s live testimony. Nor is it apparent that categorically denying live testimony
from witnesses to certain violent events, such as the inmate-on-inmate altercation that occurred
here, is improper under the law of this Circuit. In any event, as explained below, plaintiff failed
to identify any violation of a “clearly established” constitutional right.
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The MCCF Inmate Discipline Policy stated that, although an accused inmate cannot
question witnesses directly, “members of the Adjustment Committee shall question the witness
in private and include any questions raised by the accused.” Plaintiff points to a note she wrote
to Johnson, to which plaintiff says Johnson did not respond. Opp. at 10 (citing King Aff. ¶ 5 and
Opp. Exh. M). However, the note, an Inmate Request Form dated October 4, 2010, made no
specific mention of witness questions. Instead, it refers to the security video and asks that
Johnson speak with plaintiff before the adjustment hearing.
Opp. Exh. M.
deposition, she indicated that she thought, until the adjustment hearing, that she had a right to
question the witnesses herself during the proceedings. King Dep. at 111-12. That testimony
suggests that, until learning at the hearing that she had no such right, plaintiff would not have
attempted to provide Johnson with questions that plaintiff believed, albeit erroneously, that she
herself could pose to the witnesses.
As for the actual questions plaintiff drafted in advance of her hearing, those questions
indicate that she sought to elicit testimony on issues such as whether she or Geller stood up first,
who struck the other first, and whether plaintiff had an adequate opportunity to retreat from
Geller. See Mem. Exh. 7. However, according to Johnson’s description of Dana’s comments,
Dana attributed equal responsibility to plaintiff and Geller for provoking the incident. See
Johnson Dep. at 40. And, Officer Tarner’s Adjustment Report reflected that both plaintiff and
Geller were striking one another during the altercation. See Opp. Exh. F and Mem. Exh. 13.
Notably absent from the record is any indication from plaintiff as to how Dana’s
testimony would have supported plaintiff’s account or changed the outcome of the adjustment
hearing. In particular, plaintiff has not offered an affidavit, deposition testimony, or a proffer
establishing what Dana would have said. In light of those omissions, the record lacks any
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evidence that, had Dana testified at the adjustment hearing or otherwise been asked the questions
plaintiff had prepared, her testimony would have corroborated plaintiff’s version of the events.
See Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003) (holding potential due process violation
harmless where accused inmate could not explain how witness’s live testimony would have
helped him); McGuinness v. Dubois, 75 F.3d 794, 800 (1st Cir. 1996) (holding lack of live
testimony harmless where inmate was able to present defense, supported by witness affidavits);
Randall v. Pettiford, 2011 WL 587003, at *4 (D.S.C. Jan. 21, 2011) (noting that plaintiff failed
to specify how he was prejudiced by lack of live testimony, in light of other factual findings);
Joyner v. Combs, 2007 WL 2693194, at *5 (W.D. Va. Sept. 13, 2007) (noting that plaintiff
challenging exclusion of witnesses failed to “submit any affidavits from these witnesses,
indicating the content of their potential testimony or their willingness to complete a witness
statement on his behalf, consistent with his allegations”).
Moreover, the security video of the October 4 altercation between plaintiff and Geller
casts further doubt on whether additional witness testimony would have absolved plaintiff from
responsibility for the altercation. See Mem. Exh. 12 (security video from A-Pod). As the
Supreme Court explained in Scott v. Harris, 550 U.S. 372, 380 (2007), when “opposing parties
tell two different stories, one of which is blatantly contradicted” by video evidence contained in
the record, “so that no reasonable jury could believe it, a court should not adopt that version of
the facts . . . .” To be sure, Scott does not grant a court license to reject outright a party’s account
where “documentary evidence, such as a video,” merely “offers some support for [the other
side’s] version of events.” Witt v. West Virginia State Police, Troop 2, 633 F.3d 272, 276 (4th
Cir. 2011) (emphasis in original); see Sawyer v. Asbury, 537 F. App’x 283, 291 (4th Cir. 2013).
At the same time, under Scott, “[i]ncontrovertible evidence relied on by the moving party, such
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as a relevant videotape whose accuracy is unchallenged, should be credited by the court” when
resolving a motion for judgment as a matter of law, “if it so utterly discredits the opposing
party’s version that no reasonable juror could fail to believe the version advanced by the moving
party.” Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007).
As discussed above, the security video of the October 4 incident portrays Geller and
plaintiff exchanging hostile words while seated at adjoining tables in the day room. Geller arose
first from her seat, but plaintiff stood up almost simultaneously, and the two argued face-to-face,
with plaintiff making no obvious attempt to retreat until she was struck by Geller. Even when
viewed in the light most favorable to plaintiff, the video lends little support to the notion that
testimony from Dana or other witnesses would have resulted in some other outcome at plaintiff’s
Plaintiff raises arguments concerning several other aspects of her hearing, but she does
not establish how the alleged violations constitute an actionable due process claim. She contends
that Johnson “fail[ed] to communicate the substance of Dana Johnson’s interview” to her. Opp.
at 12. The Opposition cites three out-of-circuit cases for the proposition that, “[i]f witnesses are
interviewed outside the accused inmate’s presence, due process requires that she be informed of
what they said.” Opp. at 9. The first case, Espinoza v. Peterson, 283 F.3d 949, 953 (8th Cir.
2002), merely upheld the decision of prison officials to obtain a written statement from an inmate
witness as an alternative to hearing live testimony, where the witness was incarcerated at an outof-state facility. In Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir. 1989), the court concluded that
At her deposition, Johnson testified that, although the security video would have been
available for her to view around the time of the hearing, she could not recall whether she had
done so before preparing her Recommendation and Report shortly after the hearing. See Johnson
Dep. at 41-42. Johnson added that she had viewed the video at some point in time subsequent to
the incident. Id. at 41. Regardless of whether Johnson viewed the video before making her
adjustment determination as to plaintiff, the security video is relevant to this Court’s assessment
of whether plaintiff suffered actual prejudice as a result of the alleged due process violations.
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a hearing officer’s failure to inform the charged inmate of the testimony of either the accusing
officers or an inmate witness violated his right, established pursuant to pre-Wolff Second Circuit
case law, that an inmate has a right to be informed about and comment upon the evidence against
him. The Second Circuit emphasized the lack of any argument by the hearing officer that
evidence was withheld from the inmate for reasons of institutional safety. Id. The court also
rejected the inmate’s argument that he had a right to be present for testimony offered by
exculpatory witnesses and, in so concluding, did not suggest that the inmate had a right, absolute
or otherwise, to know the content of those witnesses’ testimony. See id. at 48. Similarly, Daigle
v. Hall, 387 F. Supp. 652 (D. Mass. 1975), did not address the rights of an inmate to learn of
adverse testimony in light of security concerns of the type recognized in Wolff. See id. at 660. In
short, these cases do not establish a due process violation where, as here, the relevant witness
was one identified by the charged inmate, the record does not indicate that plaintiff lacked
sufficient notice of the charges and evidence against her, and the hearing officer justified her
actions with valid, safety-based reasons.
In addition, plaintiff argues that Johnson violated the MCCF Inmate Discipline Policy by
failing “to document any reason for failing to call Dana Johnson in person as required by the
prison’s policy[.]” Opp. at 10. The relevant portion of the policy states: “Unavailable witnesses
may be asked to submit written statements; however, there must be good reason for not calling a
witness in person. The justification of this action shall be documented.” Mem. Exh. 8. As an
initial matter, it is unclear whether this documentation requirement applies only to unavailable
witnesses (such as Lemus, whose absence was documented in Johnson’s report), or also to
witnesses excluded from hearings due to security concerns.
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Even assuming that the requirement applies to a witness such as Dana, who was available
but excluded on some other basis, it would exceed the constitutional due process requirements of
Ponte, which endorses a later, in-court explanation as valid. In light of Ponte, a mere failure to
comply with a policy requiring contemporaneous documentation of the reason for declining to
allow live testimony cannot, on its own, amount to a constitutional violation. See Outlaw v.
Jones, 2012 WL 2568163, at *3 (D. Md. June 29, 2012) (“[T]o the extent that prison personnel
somehow failed to follow their own policies or procedures, such failure, standing alone, does not
amount to a constitutional violation.”); Smith v. Simpkins, 2012 WL 831934, at *1 (D. Md. Mar.
9, 2012) (“The failure of prison officials to follow their own policies or procedures, standing
alone, does not amount to a constitutional violation.”); Fitchette v. Collins, 402 F. Supp. 147,
156 (D. Md. 1975) (absent a showing of prejudice, a failure by prison officials to follow their
own rules and regulations would not amount to a constitutional due process violation); see also,
e.g., Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (per curiam) (“[A] prison official's
failure to follow the prison’s own policies, procedures or regulations does not constitute a
violation of due process, if constitutional minima are nevertheless met.”) (internal quotation
marks and citation omitted); Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir. 1993) (“[A]
failure to adhere to administrative regulations does not equate to a constitutional violation.”).
Further, plaintiff complains that Johnson neither advised her as to Dina Lemus’s
unavailability, nor allowed plaintiff to name an additional witness to testify instead. Opp. at 1011. Regarding the permissible number of inmate witnesses at an adjustment hearing, Johnson
testified that, depending on their relevance, inmates are generally advised that two or three
witnesses are appropriate. See Johnson Dep. at 38. However, plaintiff does not allege that she
attempted to call more than two witnesses or that she was barred from doing so. Although the
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security video indicates that several other inmates were present for the altercation, plaintiff chose
to select only Lemus and Dana. See Mem. Exh. 12 (security video from A-Pod). Accordingly,
as with other aspects of her due process allegations, plaintiff does raise a viable due process
claim based upon Johnson’s failure to invite her to identify an alternate witness.
4. Qualified immunity24
Defendants argue that they are entitled to qualified immunity with respect to plaintiff’s
due process claim. Mem. at 32-34. Under federal law, “[t]he doctrine of qualified immunity
protects police officers and public officials from claims of constitutional violations ‘for
reasonable mistakes as to the legality of their actions.’” Merchant v. Bauer, 677 F.3d 656, 661
(4th Cir.) (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)), cert. denied, ___ U.S. ___, 133
S.Ct. 789 (2012). See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Bland v. Roberts, 730
F.3d 368, 391 (4th Cir. 2013). “Qualified immunity extends to protect officials ‘who commit
constitutional violations but who, in light of clearly established law, could reasonably believe
that their actions were lawful.’” Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013)
(quoting Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.) (en banc), cert. denied, ___ U.S. ___,
132 S.Ct. 781 (2011)); accord Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012).
A qualified immunity analysis involves two inquiries: (1) whether the facts alleged,
“[t]aken in the light most favorable to the party asserting the injury, . . . show the officer’s
conduct violated a constitutional right,” Saucier, 533 U.S. at 201; and (2) whether the right at
issue “‘was clearly established in the specific context of the case—that is, [whether] it was clear
to a reasonable officer that the conduct in which he allegedly engaged was unlawful in the
In her Opposition, plaintiff indicates that she is pursuing an individual capacity suit
against Johnson. Opp. at 15. Accordingly, I need not address defendants’ argument that they are
entitled to summary judgment to the extent plaintiff is pursuing official-capacity claims against
them, see Mem. at 29-31, because plaintiff has abandoned that contention.
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situation he confronted.’” Merchant, 677 F.3d at 662 (citation omitted). The “two inquiries . . .
may be assessed in either sequence.” Id. at 661-62; accord Pearson, 555 U.S. at 236 (2009)
(judges are “permitted to exercise their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand”).
The second inquiry “turns on the ‘objective legal reasonableness’ of the action, assessed
in light of the legal rules that were ‘clearly established’ at the time it was taken.” Messerschmidt
v. Millender, ____ U.S. ____, 132 S.Ct. 1235, 1245 (2012) (citing Anderson v. Creighton, 483
U.S. 635, 639 (1987)). “To be clearly established, a right must be sufficiently clear that ‘every
reasonable official would [have understood] that what he is doing violates that right.’ In other
words, ‘existing precedent must have placed the statutory or constitutional question beyond
debate.’” Reichle v. Howards ____ U.S. ____, 132 S.Ct. 2088, 2093 (2012) (quoting Ashcroft v.
al-Kidd, 563 ___ U.S. ___, 131 S.Ct. 2074, 2078, 2083 (2011)) (some internal quotation marks
and citations omitted).
If the law at the time of the alleged violation was not “clearly established,” the official
will be entitled to qualified immunity, because “an official could not reasonably be expected to
anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law
forbade conduct not previously identified as unlawful.” Harlow, 457 U.S. at 818. On the other
hand, “[i]f the law was clearly established, the immunity defense ordinarily should fail, since a
reasonably competent public official should know the law governing his conduct.” Id. at 818-19.
In determining whether a right was clearly established, courts in this Circuit ‘“ordinarily need
not look beyond the decisions of the Supreme Court, [the Fourth Circuit], and the highest court
of the state in which the case arose,’” as of the date of the conduct at issue. Doe ex rel. Johnson
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v. S.C. Dept. of Soc. Servs., 597 F.3d 163, 176 (4th Cir.) (citations omitted), cert. denied, ___
U.S. ___, 131 S.Ct. 392 (2010).
Other courts have granted qualified immunity in the context of inmate due process claims
concerning a failure to call a witness at a disciplinary hearing. See, e.g., Barnes v. Henderson,
628 F. Supp. 2d 407, 413 (W.D.N.Y. 2009) (qualified immunity proper because it was clearly
established that inmate’s right to call witnesses was limited and “that a hearing officer has
discretion to deny an inmate’s witness requests on a number of grounds”); Ferreira, supra, 963
F. Supp. at 1258-59 (granting qualified immunity to hearing officer and noting that it was clearly
established at time of hearing that officer could provide reasons for denying live witness
testimony at some subsequent point in time).
Under Ponte, a hearing officer’s justification for excluding a witness may be offered after
the fact. At her deposition, Johnson identified safety-based reasons of the sort recognized by
Wolff and Ponte as the basis for her decisions concerning plaintiff’s adjustment hearing,
including the decision not to call Dana as a live witness. See Johnson Dep. at 44-45. Moreover,
plaintiff has identified no “clearly established” constitutional right that Johnson violated in
connection with the adjustment hearing. Accordingly, even if Johnson’s conduct could be
construed as inconsistent with Wolff, Ponte, and the law of this Circuit—which, in my view, it
was not—Johnson is entitled to qualified immunity.
For the foregoing reasons, defendants’ Motion is granted. A separate Order follows,
consistent with this Memorandum Opinion.
Date: February 19, 2014
Ellen Lipton Hollander
United States District Judge
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