Tweh v. Green et al
MEMORANDUM. Signed by Judge George Levi Russell, III on 8/16/13. (c/m af 8/16/13)(amf, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
THOMAS N. TWEH, #366680
MR. ROBERT GREEN, et al.
Civil Action No. GLR-12-2360
Plaintiff Thomas N. Tweh (“Tweh”) filed the above-captioned Complaint pursuant to 42
U.S.C. § 1983. Defendants Robert Green, Captain Harold Payne, Corporal Rafiq A. Muhammad,
Sergeant Michael Tate, and Anthony Sturgess (the “County Defendants”), by their attorney, filed
a Motion to Dismiss, or in the Alternative for Summary Judgment. (ECF No. 13). Plaintiff has
responded.1 (ECF No. 35). After review of the papers and applicable law, the Court determines
that a hearing is unwarranted. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow,
the dispositive motion will be GRANTED.
Tweh, an inmate currently confined at the Roxbury Correctional Institution, filed the
instant Complaint alleging that he was denied adequate medical care and subjected to excessive
force while housed at the Montgomery County Correctional Facility (“MCCF”). Plaintiff alleges
Defendants Sheriff’s Deputy Green and Sheriff Deputy Sangco have been served with the Complaint. Their
Answer has not yet been received.
Defendants Jeffers, Dr. Dadgar, Dr. Davaris and P.A. Stansbury have not been served with the Complaint. Plaintiff
will be directed to assist the Court in obtaining service or process on Dadgar, Davaris and Stansbury. For the
reasons that follow Plaintiff’s clams against Jeffers will be dismissed.
that Warden Robert Green (“Green”) was negligent in failing to properly supervise the
employees of MCCF. Compl. ¶ 1, ECF No. 1.
Plaintiff states that he had medical authorization to be double handcuffed. He alleges that
Sergeant Michael Tate (“Sgt. Tate”) violated the policy of MCCF in failing to verify that
Plaintiff was authorized to be so handcuffed. Plaintiff states that Sgt. Tate observed Plaintiff was
in pain from the use of a single set of handcuffs on September 24, 2010, but “scold[ed] him
stating, ‘It was your fault for forgetting your authorization and you would have to suffer for it.’”
Plaintiff states that as a result of Sgt. Tate’s action he suffered damage to both shoulders. Id. ¶ 2.
Plaintiff further alleges that on October 10, 2010, Sgt. Tate began harassing and
intimidating him by having other officers wake him on four occasions in October and November
2010, at 2:00 a.m. which deprived him of needed sleep.
Plaintiff further alleges that on
November 22, 2010, Sgt. Tate verbally harassed him with unspecified abusive language and
subjected him to intimidation. Plaintiff alleges this occurred in retaliation for his having filed a
grievance against Sgt. Tate for the September 24, 2010 handcuffing incident. Id.
Plaintiff alleges that Captain Harold Payne (“Cpt. Payne”) failed to investigate Plaintiff’s
complaints regarding Sgt. Tate. Plaintiff states that despite Cpt. Payne’s assurances, he failed to
prevent similar incidences regarding double handcuffing from occurring. Id. ¶ 3.
Plaintiff alleges Corporal Rafiq A. Muhammad (“Cpl. Muhammad”) “wrote a malicious
disciplinary report” against him on July 30, 2010. Plaintiff also alleges that Cpl. Muhammad
denied him medical care by refusing to double handcuff Plaintiff on that date so he could be
transported to an outside medical appointment. Id. ¶ 5.
Plaintiff alleges that on December 6, 2010, Sgt. Jeffers threatened him for refusing to be
handcuffed in the back. Plaintiff alleges that Sgt. Jeffers should have known that he had
authorization for alternative handcuffing. He claims that his property, including the alternative
handcuffing authorization, was taken from him while he was on segregation. Plaintiff states that
Sgt. Jeffers “threatened to call the goon squad to rough him up” before he attempted to verify
Plaintiff’s medical authorization for alternative handcuffing. Plaintiff states that “the officer at
the desk eventually called medical after over 5 minutes of pleading with Sgt. Jeffers to verify
that he had a handcuffing authorization.” Id. ¶ 4.
Plaintiff alleges that he spoke with Mr. Anthony Sturgess (Sturgess ) on three occasions
in September and October, 2010. He states that Sturgess told him that he “knew what [Plaintiff]
was trying to do” and he “would be ready for [Plaintiff] when the time comes...” Id. ¶ 6.
Plaintiff alleges that Sturgess had the ability to resolve Plaintiff’s medical complaints but failed
to do so advising Plaintiff that he was not obligated to follow the recommendations of the
surgeon. Plaintiff further alleges that Sturgess advised him that he was scheduled to see an
orthopedic surgeon for his shoulder injury but that never occurred.2 Id.
Defendants’ version of events offer additional information. During the time at issue,
MCCF was implementing a not yet fully functional computer program which would allow staff
to verify medical authorizations. Def.’s Motion to Dismiss Ex. 3. at 1, ECF 13. As such, the
practice in place required inmates to be in possession of their medical authorization indicating a
need for alternative cuffing. If the inmate failed to possess the authorization he would be denied
the alternative cuffing. Id., Ex. 3 and 4. That policy was provided to Plaintiff and contains
The remainder of Plaintiff’s Complaint details allegations against the deputy sheriffs and medical staff and need
not be recounted here.
mandatory language advising the inmate of the necessity of possessing the authorization for the
authorization to be effective.
inmates who are being transferred to outside
appointments are handcuffed by Montgomery County Sheriff’s deputies rather than by MCCF
correctional staff. The Sheriff’s Office policy is to use a single set of handcuffs behind the back.
Id., Exs. 1-3.
On July 30, 2010, Plaintiff was scheduled for an outside medical appointment. Id., Ex. 2.
Cpl. Muhammad escorted Plaintiff, without handcuffs, to Processing for transport by sheriff’s
deputies. Id. The deputies had conducted a pat-down search of Plaintiff and attempted to
handcuff Plaintiff with one set of handcuffs when Plaintiff refused to comply with the orders.
Plaintiff stated he was refusing to be handcuffed because he had a medical authorization to be
handcuffed in front. Plaintiff did not have the authorization with him and the medical unit was
contacted in order to verify Plaintiff’s statement. Medical staff indicated there was no order
permitting Plaintiff to be handcuffed in front. The deputies advised Plaintiff that he would not
be transported unless he was handcuffed behind his back. Plaintiff refused to be handcuffed in
back and the deputies refused to transport him. Cpl. Muhammad filled out an adjustment report
detailing the exchange and charging Plaintiff with a rule infraction for refusing to follow
direction from MCCF staff and sheriff’s deputies. Id. Plaintiff received a hearing on the
infraction and was found not guilty of the charge. Id., Ex. 3.
On September 24, 2010, Sgt. Tate was working in the Traffic Office in the Processing
area of MCCF, coordinating the transportation of MCCF inmates to the custody of the
Montgomery County’s Sheriff’s Office.
Id. Ex. 1.
Sgt. Tate heard a commotion in the
Processing area. He came out of the Traffic Office and observed Plaintiff refusing to be
handcuffed by sheriff’s deputies. Id. Sgt. Tate instructed Plaintiff to comply with the deputy.
Plaintiff responded that, for medical reasons, he needed two sets of handcuffs. Sgt. Tate asked
whether Plaintiff had the medical authorization slip. Plaintiff responded, “No, but it hasn’t been a
problem before!” Id. Sgt. Tate informed Plaintiff he was required to be in possession of his
paperwork but he would call medical to verify the authorization. Approximately five minutes
after contacting the medical unit, Sgt. Tate received verification that Plaintiff had authorization
to use two sets of handcuffs. When Sgt. Tate exited the Traffic Office to confer with the
sheriff’s deputies, he was advised that the matter had been taken care of. Sgt. Tate saw Plaintiff
walking out of Processing to board the transport van along with other inmates but did not notice
whether Plaintiff was single or double cuffed. Id. Sgt. Tate avers that he was not responsible for
handcuffing Plaintiff and in fact did not handcuff Plaintiff. Id.
Sturgess is the Health Services Administrator with MCCF. Id., Ex. 6. He is a registered
nurse and family nurse practitioner. Id. Plaintiff was incarcerated at MCCF from March 18,
2010 to December 22, 2010. MCCF is staffed with nurses who are county employees. MCCF
contracts with physicians to provide inmates on-site medical care, treatment, diagnostics, and
oversight of MCCF non-physician medical staff. Independently contracted physicians have
authority to review, accept, reject, or modify recommendations of outside medical providers.
Sturgess’s position requires him to defer to the medical decisions of the physicians contracted by
Sturgess avers that he has reviewed Plaintiff’s medical records which reveal that during
Plaintiff’s incarceration he was seen by members of the MCCF medical department or outside
medical providers approximately 98 times. Plaintiff’s myriad of complaints concerned skin
rashes, reading glasses, renal sonograms, dental care, and care for his chronic conditions.
Plaintiff was provided consultations with nursing staff, independent contract physicians, and
outside physicians. He was provided numerous diagnostic tests including blood work, x-rays,
MRI, cardiac testing, renal sonograms, and pre-operative screening. Plaintiff was also provided
medications which included maintenance medication for his chronic conditions as well as pain
medications. Plaintiff received medication on a daily basis. He also received physical therapy
for his low back. Id.
In regard to Plaintiff’s shoulder complaints, medical records demonstrate that on July 27,
2010, a nurse practitioner employed with MCCF wrote an order referring Plaintiff to Daniel
Lahr, M.D. an orthopedic specialist for evaluation of his shoulder complaint. Plaintiff was
provided analgesic medication and muscle relaxants. Plaintiff was scheduled to see Dr. Lahr on
July 30, 2010, but due to issues discussed above regarding authorization for alternative
handcuffing he was not transported to the appointment. Id. On August 15, 2010, Dr. Dadgar,
an independent medical provider, adjusted Plaintiff’s pain medicine and muscle relaxants. Id.
On September 3, 2010, Sturgess requested Plaintiff be seen by an orthopedic doctor
regarding his shoulder complaints. Id. On September 10, 2010, Plaintiff was evaluated by Dr.
Daniel Lahr who recommended arthroscopic surgery to Plaintiff’s left shoulder and indicated it
could be scheduled at Plaintiff’s convenience. Id., Ex. 5.
On October 11, 2010, Dr. Dadgar issued an order to schedule Plaintiff’s surgery. On
October 19, 2010, Dr. Lahr provided MCCF with the pre-operative requirements which needed
to be completed by November 5, 2010 as the surgery was scheduled for November 12, 2010. Id.,
Ex. 6. On November 12, 2010, prior to the scheduled surgery, Plaintiff experienced an irregular
heartbeat which necessitated that the surgery be cancelled and Plaintiff was transported to Shady
Grove Hospital for two days of cardiac monitoring. Id.
On November 19, 2010, MCCF medical staff again coordinated with Dr. Lahr’s office to
reschedule Plaintiff’s surgery. The surgery was then set for December 7, 2010. Dr. Lahr’s office
advised that Plaintiff’s pre-operative clearance was current but he would need proof of cardiac
clearance for the surgery. On November 26, 2010, Dr. Dadgar requested a cardiology consult for
Plaintiff’s pre-operative clearance. On December 1, 2010, Plaintiff was transported to an outside
provider for cardiac testing. He was cleared for surgery. Id.
On December 3, 2010, Dr. Lahr’s office contacted MCCF and cancelled the surgery. Dr.
Lahr was next available for surgery on December 14, 2010, but Plaintiff was scheduled to appear
in the Circuit Court for Montgomery County for sentencing on that date. Dr. Lahr’s next
available date for surgery was December 22, 2010, however that was the date the Maryland
Department of Corrections was to take custody of Plaintiff. Id., Ex. 6.
Standard of Review
A. Motion to Dismiss
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the
sufficiency of the plaintiff’s complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243
(4th Cir. 1999). In reviewing the complaint in light of a Motion to Dismiss pursuant to Fed. R.
Civ. Proc. 12(b)(6) the court accepts all well-pleaded allegations of the complaint as true and
construes the facts and reasonable inferences derived therefrom in the light most favorable to the
plaintiff. Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005); Ibarra v. United
States, 120 F.3d 472, 473 (4th Cir. 1997); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a Ashort and plain
statement of the claim showing that the pleader is entitled to relief.@ Migdal v. Rowe PriceFleming Int=l Inc., 248 F.3d 321, 325-26 (4th Cir. 2001). However, the aggregation of the
specific criteria set forth in Rules 8, 9, 11, and 12 of the Federal Rules of Civil Procedure
indicate that complaints must be justified by both law and fact. Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009).
The Supreme Court of the United States explained a Aplaintiff=s obligation to provide the
>grounds= of his >entitlement to relief= requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.@ Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citations omitted). Nonetheless, the complaint does not need Adetailed
factual allegations@ to survive a motion to dismiss. Id. Instead, Aonce a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint.@ Id. at 563. Thus, a complaint need only state Aenough facts to state a claim to relief
that is plausible on its face.@ Id. 570.
The court need not, however, accept unsupported legal allegations, see Revene v. Charles
County Comm'rs., 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual
allegations, see Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations
devoid of any reference to actual events, see United Black Firefighters v. Hirst, 604 F.2d 844,
847 (4th Cir. 1979). To survive a motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S.662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, at 678. “But where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the
pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
Summary Judgment is governed by Fed. R. Civ. P. 56(a) which provides that “[t]he 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).
This does not mean that any factual dispute will defeat the motion, “[b]y its very terms, this
standard provides that the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U. S. 242,
247-48 (1986) (emphasis in original).
AThe party opposing a properly supported motion for summary judgment >may not rest
upon the mere allegations or denials of [his] pleadings,= but rather must >set forth specific facts
showing that there is a genuine issue for trial.=@ Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)).
The court should Aview the evidence in the light most favorable to . . . the nonmovant, and draw
all inferences in her favor without weighing the evidence or assessing the witness= credibility.@
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court
must, however, also abide by the Aaffirmative obligation of the trial judge to prevent factually
unsupported claims and defenses from proceeding to trial.@ Bouchat, 346 F.3d at 526 (internal
quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and
citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) the Supreme Court
explained that in considering a motion for summary judgment, the Ajudge=s function is not
himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.@ A dispute about a material fact is genuine Aif the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.@ Id. at 248. Thus,
Athe judge must ask himself not whether he thinks the evidence unmistakably favors one side or
the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the
evidence presented.@ Id. at 252.
The moving party bears the burden of showing that there is no genuine issue as to any
material fact. No genuine issue of material fact exists if the nonmoving party fails to make a
sufficient showing on an essential element of his or her case as to which he or she would have
the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, on
those issues for which the nonmoving party has the burden of proof, it is his or her responsibility
to confront the summary judgment motion with an affidavit or other similar evidence showing
that there is a genuine issue for trial.
Plaintiff=s Complaint against Green and Cpt. Payne is based solely upon the doctrine of
respondeat superior. There is no respondeat superior liability in claims arising under 42 U.S.C. '
1983. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no respondeat superior
liability under '1983); see also Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (no
respondeat superior liability in a Bivens suit).
Liability of supervisory officials must be
“premised on >a recognition that supervisory indifference or tacit authorization of subordinates=
misconduct may be a causative factor in the constitutional injuries they inflict on those
committed to their care.=@ Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001), citing Slakan
v. Porter, 737 F.2d 368, 372 (4th Cir. 1984). Supervisory liability under ' 1983 must be
supported with evidence that (1) 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) the supervisor=s response to the knowledge
was so inadequate as to show deliberate indifference to or tacit authorization of the alleged
offensive practices, and (3) there was an affirmative causal link between the supervisor=s inaction
and the particular constitutional injury suffered by the plaintiff. See Shaw v. Stroud, 13 F.3d
791, 799 (4th Cir. 1994). Plaintiff has pointed to no action or inaction on the part of Green or
Cpt. Payne that resulted in a constitutional injury, and accordingly, his claims against them shall
The Eighth Amendment prohibits Aunnecessary and wanton infliction of pain@ by virtue
of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173
(1976).3 AScrutiny under the Eighth Amendment is not limited to those punishments authorized
Plaintiff’s status during his incarceration at MCCF is unclear. The constitutional protections afforded a pre-trial
detainee as provided by the Fourteenth Amendment are co-extensive with those provided by the Eighth Amendment.
See Bell v. Wolfish, 441 U.S. 520, 535 (1979). ADue process rights of a pretrial detainee are at least as great as the
eighth amendment protections available to the convicted prisoner.@ Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir.
1992), citing Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988); see also Riley v. Dorton, 115 F.3d 1159, 1167
(4th Cir. 1997) (pre-trial detainee=s Fourteenth Amendment right with respect to excessive force is similar to
by statute and imposed by a criminal judgment.@ De=Lonta v. Angelone, 330 F.3d 630, 633 (4th
Cir. 2003) citing Wilson v. Seiter, 501 U.S. 294, 297 (1991).
In order to state a claim for denial of medical care, a plaintiff must demonstrate that the
actions of the defendants or their failure to act amounted to deliberate indifference to a serious
medical need. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).4 Deliberate indifference to a
serious medical need requires proof that, objectively, the prisoner plaintiff was suffering from a
serious medical need and that, subjectively, the prison staff was aware of the need for medical
attention but failed to either provide it or ensure the needed care was available. Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
The subjective component requires Asubjective
recklessness@ in the face of the serious medical condition. Farmer, 511 U.S. at 839B 40. ATrue
subjective recklessness requires knowledge both of the general risk, and also that the conduct is
inappropriate in light of that risk.@ Rich v. Bruce, 129 F.3d 336, 340 n. 2 (4th Cir. 1997).
AActual knowledge or awareness on the part of the alleged inflicter . . . becomes essential to
proof of deliberate indifference >because prison officials who lacked knowledge of a risk cannot
be said to have inflicted punishment.=@ Brice v. Virginia Beach Correctional Center, 58 F.3d
101, 105 (4th Cir. 1995), quoting Farmer, 511 U.S. at 844. If the requisite subjective knowledge
is established, an official may avoid liability Aif [he] responded reasonably to the risk, even if the
harm was not ultimately averted.@ Farmer, 511 U.S. at 844. Reasonableness of the actions taken
must be judged in light of the risk the defendant actually knew at the time. Brown, 240 F.3d at
390; citing Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998) (focus must be on precautions
prisoner=s Eighth Amendment right).
The United States Court of Appeals for the Fourth Circuit “has concluded that denial-of medical-care claims
asserted by pre-trial detainees are [also] governed by the deliberate indifference standard.” Patten v. Nichols, 274
F.3d 829, 834 (4th Cir. 2001).
actually taken in light of suicide risk, not those that could have been taken).
Plaintiff’s allegation that Sgt. Tate, Cpl. Muhammad, and Sgt. Jeffers were deliberately
indifferent to his serious medical need is refuted by the record. It is undisputed that at the times
at issue Plaintiff did not have with him, as required by MCCF policy, the medical authorization
that he be double handcuffed. Sgt. Tate and Cpl. Muhammad aver that they, or someone
working with them, contacted medical staff to verify Plaintiff’s cuffing status. Cpl. Muhammad
was unable to verify that Plaintiff was required to be cuffed in front, as Plaintiff had claimed.
Sgt. Tate verified Plaintiff’s order for double cuffing but when he returned to advise the deputies,
he was advised that the matter was resolved and Plaintiff was already handcuffed and under
escort. In both cases, Defendants did not have knowledge of Plaintiff’s medical order, but
endeavored to discern the status of same. Once they verified Plaintiff’s handcuffing status they
attempted to communicate that information to the deputies in charge of transporting Plaintiff.
Sgt. Tate responded reasonably to the risk, once apprised of same, by attempting to advise the
deputies of the double cuffing order. That the harm was not ultimately averted, is unfortunate,
but does not create liability on behalf of Sgt. Tate.
See Farmer, 511 U.S. at 844.
Muhammad was unable to verify Plaintiff’s alternate handcuffing status and as such cannot be
said to have had subjective knowledge of a risk of harm to Plaintiff. Plaintiff concedes that
during the incident with Sgt. Jeffers his cuffing status was also verified and ultimately he was not
handcuffed in back. No harm came to Plaintiff during the incident with Cpl. Muhammad or Sgt.
Jeffers as in both cases Plaintiff was not subjected to single handcuffing in the back.
Plaintiff’s allegation that Sturgess failed to provide necessary medical treatment for his
shoulder injury is likewise belied by the record. The evidence before the Court demonstrates that
Plaintiff has received constitutionally-adequate medical care while housed at MCCF from
March 18, 2010 to December 22, 2010, as to his shoulder injury. Plaintiff has been evaluated
regularly regarding his shoulder injury. His care was coordinated with an outside orthopedic
surgeon. He was regularly provided pain medication and the medical staff coordinated with the
surgeon to schedule his surgery. His surgery was delayed due to Plaintiff’s cardiac problems, the
surgeon’s scheduling difficulties, Plaintiff’s court appearance, and ultimately by his transfer out
of the custody of MCCF.
With respect to Sturgess, his conduct also does not establish an actual intent or reckless
disregard for Plaintiff=s medical need. The delays that occurred do not appear to be deliberate,
nor have they resulted in harm to Plaintiff. In granting summary judgment, the Court does not
imply that Plaintiff is not entitled to medical treatment for his serious condition.
The right to
treatment, however, is “limited to that which may be provided upon a reasonable cost and time
basis and the essential test is one of medical necessity and not simply that which may be
considered merely desirable.”
Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977)
The surgeon indicated that Plaintiff’s surgery could be scheduled at
Plaintiff’s convenience. The delays in scheduling were all outside the control of Sturgess and
MCCF. “Disagreements between an inmate and a physician over the inmate's proper medical
care do not state a § 1983 claim unless exceptional circumstances are alleged.” Wright v.
Collins, 766 F.2d 841, 849 (4th Cir. 1985), citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3rd Cir.
There are no exceptional circumstances in this case.
Plaintiff has been evaluated
repeatedly and provided appropriate tests, therapies, and medication. Accordingly, Sturgess is
entitled to summary judgment as to Plaintiff’s Eighth Amendment claim.
Harassment and Retaliation
A[N]ot all undesirable behavior by state actors is unconstitutional.@ Pink v. Lester, 52
F.3d 73, 75 (4th Cir. 1995). Verbal abuse of inmates by guards, including aggravating language,
without more, states no constitutional claim. See Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.
1979) (sheriff laughed at inmate and threatened to hang him); Blades v. Schuetzle, 302 F.3d 801,
805 (8th Cir. 2002) (racial slurs). The threats alleged in this case are not condoned by this court,
but fall short of acts forbidden by the Fourth, the Fourteenth, or the Eighth Amendments. See
Pink v. Lester, 52 F.3d 73, 75 (1995). Accordingly, Plaintiff’s allegations that Sgt. Tate and Sgt.
Jeffers threatened and harassed him, without more, fail to state a claim.
In order to prevail on a claim of retaliation, Plaintiff Amust allege either that the
retaliatory act was taken in response to the exercise of a constitutionally protected right or that
the act itself violated such a right.@ Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). A>A
complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the
pleading alone.=@ Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (quoting Flaherty v.
Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)); Pierce v. King, 918 F.Supp. 932, 943 (E.D.N.C.
1996) (conclusory allegations of retaliation insufficient to state claim). Plaintiff offers nothing in
support of his claim that Sgt. Tate’s having dorm officers, on four occasions, wake him early to
remind him to bring his medical authorization was in retaliation for his having filed a grievance
against him. “In the prison context, we treat [claims of retaliation] with skepticism because
‘every act of discipline by prison officials is by definition ‘retaliatory’ in the sense that it
responds directly to prisoner misconduct.” Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir.
1996). Plaintiff cannot prevail on this claim.
Additionally, Cpl. Muhammad avers that he did not write a false infraction against
Plaintiff. Plaintiff does not claim that his right to due process was violated during the resulting
adjustment proceedings. Rather, Plaintiff makes vague and conclusory allegations that a Afalse@
infraction was filed against him. Conclusory statements are insufficient to survive a motion to
dismiss. In any event Plaintiff received a hearing as to the disciplinary charge lodged by Cpl.
Muhammad and was found not guilty of the charge. No injury was caused as a result of the
allegedly false infraction report and Plaintiff’s claim is subject to dismissal.
Failure to Comply with Prison Policy
To the extent Plaintiff alleges Sgt. Tate did not follow MCCF policy in verifying
Plaintiff’s handcuffing authorization, his claim fails. To the extent any written directive was not
followed to the letter, the adoption of procedural guidelines does not give rise to a liberty
interest. Thus, the failure to follow regulations does not, in and of itself, result in a violation of
due process. See Culbert v. Young, 834 F.2d 624, 628 (7th Cir. 1987).5
For the reasons stated, summary judgment is granted in favor of County Defendants.
Plaintiff’s Complaint against Jeffers shall be dismissed.
A separate Order shall be entered in
accordance with this Memorandum.
August 16, 2013
George L. Russell, III
United States District Judge
Regardless of any alleged violations of internal regulations, the law is settled that the failure to follow a prison
directive or regulation does not give rise to a federal claim, if constitutional minima are met. See Myers v.
Kelvenhagen, 97 F.3d 91, 94 (5th Cir. 1996).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?