Tweh v. Green et al

Filing 53

MEMORANDUM filed. Signed by Judge George Levi Russell, III on 12/2/2013. (c/m 12/3/2013)(ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

THOMAS N. TWEH,

*

Plaintiff,

*

v.

*

ROBERT GREEN, et al.,

*

Defendants.

Civil Action No. GLR-12-2360

*

MEMORANDUM
Pending

before

the

Court

is

Defendants’,

Sheriff

Deputy

Green and Sheriff Deputy Songco1 (“Sheriff Defendants”), Motion
to Dismiss, or in the Alternative for Summary Judgment (ECF No.
43) and Plaintiff’s, Thomas N. Tweh, Motion for Default Judgment
(ECF No. 51).

After review of the papers and applicable law,

the Court determines that a hearing is unwarranted.

See Local

Rule 105.6 (D.Md. 2011).
Tweh

filed

the

above-captioned

Complaint

U.S.C. § 1983 against 11 defendants.2

pursuant

to

42

The Court previously

granted Defendants Robert Green, Captain Harold Payne, Corporal
Rafiq A. Muhammad, Sergeant Michael Tate and Anthony Surgess's

1

The Clerk shall amend the docket to reflect the correct
spelling of Defendant Songco’s name.
2

Defendants Dr. Dadgar, Dr. Davaris, and P.A. Stansbury
have not been served with the Complaint.

(“County Defendants”) Motion to Dismiss, or in the Alternative
for

Summary

Judgment

Sergeant Jeffers.
below,

Sheriff

Alternative

and

dismissed

(ECF Nos. 41-42).

Defendants’

for

the

Summary

Motion

Judgment

Complaint

against

For the reasons given
to

will

Dismiss,
be

or

granted

in

and

the

Tweh’s

Motion for Default Judgment will be denied.
I. Background3
Tweh,

an

inmate

currently

confined

at

the

Roxbury

Correctional Institution, filed the instant Complaint alleging
that

he

was

excessive

denied

force

adequate

while

medical

housed

Correctional Facility (“MCCF”).
the

incident

he

had

medical

at

care
the

and

subjected

Montgomery

to

County

Tweh states that at the time of
authorization

to

be

double

handcuffed.
As

to

the

Sheriff

Defendants,

Tweh

alleges

that

on

September 24, 2010, he advised Defendant Green that he had a
medical authorization to be double cuffed but did not have the
authorization with him.

Green advised Tweh not to worry, that

Green

him.”

would

attitude”

“work

when

Tweh

Defendant Songco.

3

with

attempted

However,
to

explain

Green
his

“changed
condition

his
to

Tweh avers that Green then pointed a taser in

Unless otherwise noted, the following facts are taken from
the Complaint, Motion to Dismiss, and Response in Opposition.
2

his face and threatened to tase him if he did not put his hands
behind his back.

Tweh states that due to his heart condition he

was in fear for his life.
Tweh further alleges that Songco forcibly restrained him
with only one set of handcuffs and with deliberate indifference
to his medical needs.
behavior

despite

Tweh states that Songco engaged in this

Deputy

Ducket

advising

her

to

“get

2

handcuffs,” and after he explained to her that he had forgotten
his authorization for double cuffing.
Sheriff Defendants aver that on September 24, 2010, they
were attempting to transport Tweh from the Montgomery County
Maryland Corrections Facility (“MCCF”) to the Montgomery County
Circuit Court when Tweh resisted being handcuffed with the other
inmates, indicating he suffered from an injury that required he
be double cuffed.

Sheriff Defendants state that there was no

information on Tweh’s prisoner information card indicating the
same.

To Sheriff Defendants’ knowledge, MCCF did not have any

record indicating that Tweh had injuries which prevented him
from being handcuffed in the normal manner.

It was because of

Tweh’s continued resistance and belligerence, Sheriff Defendants
argue,

that

Green

threated

to

use

a

taser

on

him.

Other

deputies restrained Tweh while he was handcuffed in the normal

3

manner.
to court.

Once in handcuffs, Tweh cooperated and was transported
No taser was actually used.

Additionally,

the

Court

previously

noted

the

following

pertinent facts offered by the County Defendants:
During the time at issue, MCCF was implementing a
not yet fully functional computer program which would
allow staff to verify medical authorizations.
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.
That policy was provided to
Plaintiff and contains mandatory language advising the
inmate
of
the
necessity
of
possessing
the
authorization for the authorization to be effective.
MCCF 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.
****
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.
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.
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!”
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
4

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.
Mem. Opinion 3-5, ECF No. 41 (citations omitted).
II. Discussion
A.

Default Judgment
On August 8, 2012, Tweh commenced this action against all

Defendants.
19,

2012,

Defendants.

(ECF No. 1).
the

summons

A Summons was issued and, on December
was

returned

(ECF No. 19).

executed

as

to

Sheriff

Pursuant to Federal Rule of Civil

Procedure 12(a)(1)(A)(i), a responsive pleading is due within 21
days

of

being

served

with

the

summons

and

complaint.

“The

filing of a Motion to Dismiss constitutes defending an action
within the meaning of Rule 55(a).”

Hudson v. State of N.C., 158

F.R.D. 78, 80 (E.D.N.C. 1994) (citing Wickstrom v. Ebert, 101
F.R.D. 26, 33 (E.D.Wis.1984)).
Here, Sheriff Defendants’ Motion to Dismiss was filed on
August 16, 2013, more than eight months after the responsive
pleading was due.

Notwithstanding the fact that Defendants’

Motion

was

to

Dismiss

untimely,

Tweh

opposition to the Motion to Dismiss.

filed

a

response

(ECF No. 47).

in

Tweh then

waited an additional 30 days prior to filing his Motion for
5

Default Judgment.

(ECF No. 51).

As evidenced by his decision

to respond to Defendants’ motion prior to filing for Default
Judgment, Tweh did not suffer substantial prejudice by the delay
in filing the Motion to Dismiss.

Further, at the time Tweh

moved for default judgment, the Sheriff Defendants, having cured
their default by filing the Motion to Dismiss, however late,
were no longer in default.

Moreover, the United States Court of

Appeals for the Fourth Circuit has stated a strong preference
for cases to be decided on their merits.

United States v.

Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993).

For all

of these reasons, plaintiff's motion for default judgment will
be denied.
B.

Standard of Review
1. Motion to Dismiss
A Federal Rule of Civil Procedure 12(b)(6) motion should be

granted

unless

an

adequately

stated

claim

is

“supported

by

showing any set of facts consistent with the allegations in the
complaint.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561

(2007) (internal citations omitted); see Fed.R.Civ.P. 12(b)(6).
“[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a
complaint and not to resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”

Presley

v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)
6

(internal
Edwards

quotation

v.

1999)).

City

of

marks

and

alterations

Goldsboro,

178

F.3d

omitted)

231,

243

(quoting
(4th

Cir.

“A pleading that offers labels and conclusions or a

formulaic recitation of the elements of a cause of action will
not do.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Twombly,

550 U.S. at 555.

A complaint is also insufficient if it relies

upon “naked assertions devoid of further factual enhancement.”
Iqbal, 556 U.S. at 678 (internal citations omitted).
In order to survive a Rule 12(b)(6) motion to dismiss, a
complaint must set forth “a claim for relief that is plausible
on

its

face.”

Id.;

Twombly,

550

U.S.

at

570.

A

claim

is

facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Iqbal, 556

U.S. at 678; Twombly, 555 U.S. at 556.
In

considering

construe

the

a

Rule

complaint

in

12(b)(6)
the

light

motion,
most

the

Court

favorable

to

must
the

plaintiff, read the complaint as a whole, and take the facts
asserted therein as true.

Mylan Labs., Inc. v. Matkari, 7 F.3d

1130, 1134 (4th Cir. 1993).
court

may

also

examine

In addition to the complaint, the
“documents

incorporated

into

the

complaint by reference, and matters of which a court may take
judicial notice.”

Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
7

551 U.S. 308, 322 (2007).

“Conclusory allegations regarding the

legal effect of the facts alleged” need not be accepted.
v. Havel, 43 F.3d 918, 921 (4th Cir. 1995).
purpose

of

the

complaint

is

to

Labram

Because the central

provide

the

defendant

“fair

notice of what the plaintiff’s claim is and the grounds upon
which

it

supported

rests,”
by

the

some

plaintiff’s

factual

legal

basis

allegations

sufficient

defendant to prepare a fair response.

to

must

allow

be
the

Twombly, 550 U.S. at 556

n.3.
2.

Summary Judgment

Under Federal Rule of Civil Procedure 56, the Court must
grant summary judgment if the moving party demonstrates that
there is no genuine issue as to any material fact, and that the
moving

party

is

entitled

to

judgment

as

a

matter

of

law.

Fed.R.Civ.P. 56(a).
In reviewing a motion for summary judgment, the Court views
the facts in a light most favorable to the non-moving party.
Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

255

(1986)

(citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970)).
Once

a

motion

for

summary

judgment

is

properly

made

and

supported, the opposing party has the burden of showing that a
genuine dispute exists.

Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986).
8

“[T]he 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, 477 U.S. at 247-48.

A “material fact” is a fact that might affect the outcome
of a party’s case.

Id. at 248; JKC Holding Co. v. Wash. Sports

Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
fact

is

considered

substantive

law,

and

to

be

“material”

“[o]nly

is

disputes

over

Whether a

determined
facts

by

that

the

might

affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”

Anderson, 477

U.S. at 248; Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th
Cir. 2001).
A “genuine” issue concerning a “material” fact arises when
the evidence is sufficient to allow a reasonable jury to return
a verdict in the nonmoving party’s favor.
248.

Anderson, 477 U.S. at

Rule 56(c) requires the nonmoving party to go beyond the

pleadings and by its own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.
Celotex

Corp.

v.

Catrett,

477

U.S.

317,

324

(1986).

The

nonmoving party “cannot create a genuine issue of material fact
through mere speculation or the building of one inference upon
9

another.”

Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).

B. Analysis
1.

Eighth Amendment

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)

(citing)

Georgia,

Furman

v.

408

U.S.

238,

392-93,

(1972).4

AScrutiny under the Eighth Amendment is not limited to those
punishments

authorized

by

statute

and

imposed

by

a

criminal

judgment.@

De=Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir.

2003).
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

4

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 coextensive with those provided by the Eighth Amendment. See Bell
v. Wolfish, 441 U.S. 520, 535 n.16 (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) (noting that a
pre-trial detainee=s Fourteenth Amendment right with respect to
excessive force is similar to prisoner=s Eighth Amendment right).
10

(1976).5

Deliberate

requires

proof

that,

indifference

to

a

objectively,

the

serious

prisoner

medical

need

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

available.

provide

it

or

ensure

the

needed

care

was

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

The

subjective component requires Asubjective recklessness@ in the
face of the serious medical condition.

Id. at 839B40.

ATrue

subjective recklessness requires knowledge both of the general
risk, and also that the conduct is inappropriate in light of
that risk.”
1997).

Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir.

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

marks

omitted).

Farmer,
If

511
the

U.S.

at

requisite

844)

(internal

subjective

quotation

knowledge

is

established, an official may avoid liability Aif [he] responded
reasonably to the risk, even if the harm ultimately was not
5

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).
11

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 v. Harris, 240 F.3d 383, 390

(4th Cir. 2001).
In determining whether excessive force was used, the Court
must determine whether the Aforce was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.@
7 (1992).

Hudson v. McMillian, 503 U.S. 1, 6-

The Court must consider the need for application of

force, the relationship between that need and the amount of
force applied, the extent of the injury inflicted, the extent of
the threat to the safety of the staff and inmates as reasonably
perceived by prison officials, and any efforts made to temper
the severity of the response.
312, 321 (1986).
dispositive

of

See Whitley v. Albers, 475 U.S.

The absence of significant injury alone is not
a

claim

Gaddy, 559 U.S. 34.

of

excessive

force.

See

Wilkens

v.

The extent of injury incurred is one factor

indicative of whether or not the force used was necessary in a
particular situation, but, if force is applied maliciously and
sadistically,

liability

is

not

avoided

simply

because

prisoner had the good fortune to escape serious harm.
38.

12

the

Id. at

Tweh’s allegation that Green and Songco were deliberately
indifferent
record.
have

to

his

serious

medical

need

is

refuted

by

the

It is undisputed that at the time at issue Tweh did not

with

him,

as

required

by

MCCF

policy,

authorization that he be double handcuffed.

the

medical

Sheriff Defendants

aver that they were unaware Tweh possessed a valid authorization
for double cuffing prior to handcuffing him.

As previously

noted by the Court, County Defendant Tate was able to verify, on
the date of the incident, Tweh’s order for double cuffing, but
when he returned to advise the Sheriff Defendants, the matter
was already resolved as Tweh was already handcuffed and under
escort.

There

is

no

indication

that

the

authorization

for

double cuffing was ever communicated to the Sheriff Defendants
and in fact they aver they were not aware of the order.

As

such, it cannot be said that Green or Songco had subjective
knowledge of a risk of harm to Tweh.
Tweh’s claim of excessive force similarly fails.
Defendants

explain

that

the

force

used

was

minimal

Sheriff
and

was

undertaken in order to keep security in transporting Tweh and
other

inmates

handcuffs,
transport.

was

to

court.

necessary

The
in

force

order

to

used,
secure

application
Plaintiff

of
for

Additionally, the force was tempered in that Tweh

was given an opportunity to comply with lawful orders to submit
13

to

handcuffing

submission.

before

deputies

held

him

and

forced

his

In light of the foregoing, Sheriff Defendants are

entitled to summary judgment.
2. Failure to Comply with Policy
With respect to Tweh’s argument that the Sheriff Defendants
did

not

follow

policy

in

verifying

his

handcuffing

authorization, the adoption of procedural guidelines does not
give rise to a liberty interest.

Riggins v. Green, No. PJM-09-

289, 2009 WL 7042240, at *3 (D.Md. May 21, 2009) aff’d, 332 F.
App'x 867 (4th Cir. 2009); see also Culbert v. Young, 834 F.2d
624,

628

(7th

Cir.

1987)

(“The

adoption

of

mere

procedural

guidelines, however, does not give rise to a liberty interest
protected under the fourteenth amendment.”).

Thus, regardless

of any alleged violations of internal regulations, the failure
to follow a prison directive or regulation does not give rise to
a federal claim, if constitutional minima are met.

Weatherholt

v. Bradley, 316 F. App'x 300, 303 (4th Cir. 2009) (quoting Myers
v. Kelvenhagen, 97 F.3d 91, 94 (5th Cir. 1996)).

Accordingly,

the Court rejects this argument.
3.

Eleventh Amendment

The Eleventh Amendment immunizes states from suit brought
in

federal

court

congressional

absent

exercise

of

waiver
its
14

from
power

the

state

under

the

or

a

clear

Fourteenth

Amendment.

See Will v. Michigan, 491 U.S. 58, 66 (1989).

The

State of Maryland has not expressly waived its immunity under
the Eleventh Amendment to such suits.

A suit against a state

officer in his official capacity is the equivalent to a suit
against the state itself.
(1985).

Thus,

Brandon v. Holt, 469 U.S. 464, 471-72

Defendants

Green

and

Songco,

sued

as

individually-named Defendants in their official capacity, are
immune from suit and any claim against them stated as such is
subject to dismissal.
III. Conclusion
For the reasons stated above, summary judgment is granted
in favor of the Sheriff Defendants.6

A separate Order shall be

entered in accordance with this Memorandum.

December 2, 2013

/s/
__________________________
George L. Russell, III
United States District Judge

6

Having found no constitutional violation, the Court need
not
address
Defendants’
claim
of
qualified
immunity.
Additionally, to the extent the Complaint can be construed as
raising state law claims, the Court declines to exercise
supplemental jurisdiction.
See 28 U.S.C. ' 1367(c)(3) (2012);
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).
15