Washington v. Maynard et al

Filing 53

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 3/7/2016. (nd2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LARRY WASHINGTON,

:

Plaintiff,

:

v.

:

GARY D. MAYNARD, et al.

:

Defendants.

Civil Action No. GLR-13-3767

:
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendants’1 Motion to
Dismiss and/or Motion for Summary Judgment of the Second Amended
Complaint (ECF No. 41) and Plaintiff Larry Washington’s Motion
to

Allow

Procedure

Time
56(d)

for
(ECF

Discovery
No.

under

46).

Federal

Washington

Rule

of

asserts

Civil
various

federal constitutional and state common law claims arising from
an attack he suffered while he was a pretrial detainee in the
BCDC.

The Court, having reviewed the Motions and supporting

documents, finds no hearing necessary.
(D.Md. 2014).

See Local Rule 105.6

For the reasons outlined below, the Court will

deny Washington’s Motion, deny the Prison Officials’ Motion for

1

Defendants include: Gary D. Maynard, former Secretary of
the Maryland Department of Public Safety and Correctional
Services; Marion Tuthill, former Warden of the Baltimore City
Detention Center (the “BCDC”); Correctional Captain Karen Moore;
Sergeant Michael Porter; and Correctional Officer (“CO”) Andrene
Ffowlkes (collectively, the “Prison Officials”).
Washington’s
Second Amended Complaint also names Shavella Miles and Anika
Beverly as defendants.
To date, the Court has no record,
however, that these defendants have been served.
1

Summary Judgment, and grant in part and deny in part the Prison
Officials’ Motion to Dismiss.
BACKGROUND2

I.
A.

The First Attack
Washington is a state prisoner currently incarcerated at

the

Roxbury

Maryland.

Correctional
From

Institution

approximately

May

(“RCI”)

2011

to

Washington was a pretrial detainee at BCDC.

in

Hagerstown,

September

2013,

In the spring of

2012, Washington was housed in F-section in cell 81-82.

Inmate

Brandon

Family

Dovi,

a

known

member

of

the

Black

Guerilla

(“BGF”) gang, was housed next to Washington in cell 79-80.

As a

sanitation worker, Washington had access to locations throughout
BCDC that were inaccessible to other inmates.

Attempting to

exploit

to

this

access,

Dovi

contraband for the BGF.

asked

Washington

Washington refused.

transport

Shortly after

Washington’s refusal, Dovi and several other BGF members gained
access to Washington’s cell and attacked him.

Captain Moore

identified Dovi as Washington’s principal assailant.
Following

the

attack,

punitive segregation.
Moore

could

identify

BCDC

personnel

placed

Dovi

in

Because neither Washington nor Captain
Washington’s

other

assailants,

BCDC

personnel relocated Washington to the Women’s Detention Center
2

The following facts are taken from the Second Amended
Complaint and are assumed true for purposes of the Prison
Officials’ Motion to Dismiss.
2

(“WDC”)

facility

within

BCDC.

After

Washington

received

harassment and threats of retribution from members of the BGF
while housed in the WDC, BCDC personnel relocated Washington
twice more, ultimately assigning him to B-section.
B.

Washington Requests Relocation
When

Dovi

was

released

from

segregation,

BCDC

personnel

assigned him to B-section—the same section where Washington was
housed.

When

immediately

Washington

reported

it

first
to

CO

saw

Dovi

Ffowlkes,

in

B-section,

his

tier

he

officer,

“explaining that he feared he would be attacked again, or worse,
if he was not relocated.”
No. 36).

(Second Am. Compl. [“SAC”] ¶ 41, ECF

CO Ffowlkes told Washington that she would contact her

supervisor to report the issue, but “nothing happened.”

(Id.).

CO Ffowlkes then “claimed that she could in fact do nothing to
relocate Mr. Washington.”
from

CO

Moore,

Ffowlkes,
who

assailant
claimed

in

that

had

(Id.).

Washington
identified

the

earlier

she,

too,

days

later,

Having obtained no action

reported
Dovi

as

attack.

“could

do

the

issue

to

Washington’s
Captain

nothing

principal

Moore,

for

Captain

however,

[Washington].”

(Id. ¶ 42).
Several

Dovi

began

threatening

Washington.

Nevertheless, CO Ffowlkes again told Washington she could not
relocate him to another housing unit.

As a result, Washington

wrote multiple letters to Warden Tuthill, Captain Moore, and
3

Sergeant

Porter,

“imploring

them

to

protect his health and safety.”

take

minimum

(Id. ¶ 44).

steps

to

These Prison

Officials, however, took no action.
C.

The Second Attack
Dovi’s

threats

worsened,

and

one

day,

after

Washington

again refused to transport contraband for the BGF, Dovi warned
Washington

that

Dovi

would

unless he cooperated.”

“‘stab

[Washington]

(Id. ¶ 45).

that

night’

At this point, Washington

continued to request aid from Warden Tuthill, Captain Moore, and
Sergeant Porter.

(Id.).

On May 31, 2012, two days after Dovi

threatened Washington’s life, Dovi and several other BGF members
gained access to Washington’s cell and attacked him.
assailants

stabbed

Washington

in

the

left

eye

One of the

with

a

sharp

object.

BCDC personnel eventually responded and summoned an

emergency

medical

team.

As

a

result

of

the

Second

Attack,

Washington suffered broken bones and his left eye had to be
surgically removed.
D.

Procedural History
Washington,

acting

pro

se,

initiated

this

action

on

December 13, 2013 by filing a Complaint (ECF No. 1) and a Motion
to

Proceed

in

Forma

Pauperis

(ECF

No.

2).

The

Court

provisionally granted Washington’s Motion to Proceed in Forma
Pauperis on January 6, 2014.

(ECF No. 3).

Secretary Maynard,

Warden Tuthill, and Captain Moore (collectively, the “Supervisor
4

Prison Officials”) filed a Motion to Dismiss pursuant to Rule
12(b)(6)

on

March

6,

2014.

(ECF

No.

6).

In

response,

Washington filed a brief opposition memorandum (ECF No. 9) and a
Motion for Counsel (ECF No. 8).

On April 3, 2014, the Court

denied the Motion to Dismiss and granted Washington’s Motion for
Counsel.

(ECF No. 10).

Following

the

appointment

of

counsel,

Amended and Second Amended Complaints.

Washington

filed

(ECF Nos. 14, 36).

In

his Second Amended Complaint, Washington asserts the following
claims against the Prison Officials: violations of the Eighth
and

Fourteenth

Amendments

to

the

United

States

Constitution

under 42 U.S.C. § 1983 (Counts I and II); negligence (Count IV);
and

intentional

infliction

of

emotional

distress

(Count

VI).

Washington also brings the following claims against only the
Supervisor

Prison

Officials:

supervisory

liability

under

42

U.S.C. § 1983 (Count III); and negligent hiring, supervision,
and retention (Count V).
On March 23, 2015, the Prison Officials filed a Motion to
Dismiss

and/or

for

Summary

Complaint (ECF No. 41).

Judgment

of

the

Second

Amended

The Prison Officials move for summary

judgment only as to the threshold issue of whether Washington’s
suit is barred for failure to exhaust administrative remedies.
They also move to dismiss all six Counts in the Second Amended
Complaint for failure to state a claim.
5

Washington filed an

Opposition

(ECF

No.

45)

on

April

15,

2015,

and

the

Prison

Officials submitted their Reply (ECF No. 49) on May 18, 2015.
Washington, on April 17, 2015, also filed a Motion to Allow Time
for

Discovery

under

Rule

56(d)

(ECF

No

46).

The

Prison

Officials submitted an Opposition (ECF No. 50) on May 18, 2015,
and Washington filed his Reply (ECF No. 51) on June 1, 2015.
II.
A.

DISCUSSION

Washington’s Motion to Allow Time for Discovery under Rule
56(d)
The Prison Officials move to dismiss under Rule 12(b)(6)

and/or for summary judgment under Rule 56.

When deciding a Rule

12(b)(6) motion to dismiss, “the Court considers the complaint,
as well as documents attached to it that are ‘integral to the
complaint.’”

Hamilton v. Mayor of Balt., 807 F.Supp.2d 331, 341

(D.Md. 2011) (quoting

Sec’y of State for Defence v. Trimble

Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)).

Under Rule

12(d), “if ‘matters outside the pleadings are presented to and
not excluded by the court’ in connection with a Rule 12(b)(6)
motion, ‘the motion must be treated as one for summary judgment
under Rule 56.’”

Id.

Summary judgment, however, is ordinarily

“inappropriate ‘where the parties have not had an opportunity
for

reasonable

discovery.’”

Id.

(quoting

E.I.

du

Pont

de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir.
2011).

6

To oppose a summary judgment motion on the grounds that
more time is needed for discovery, the non-movant must file an
affidavit

or

declaration

pursuant

to

Rule

56(d),

“explaining

why, ‘for specified reasons, it cannot present facts essential
to

justify

its

opposition,’

without

(quoting Fed.R.Civ.P. 56(d)).

needed

discovery.”

Id.

“Notably, ‘Rule 56(d) affidavits

cannot simply demand discovery for the sake of discovery.’”

Id.

at 342 (quoting Young v. UPS, No. DKC-08-2586, 2011 WL 665321,
at *20 (D.Md. Feb. 14, 2011)).

“A party may not simply lament

the lack of discovery; it must set forth its specific discovery
needs in the Rule 56(d) affidavit.”

Archer v. Freedmont Mortg.

Corp., No. GLR-12-1099, 2012 WL 5193828, at *4 (D.Md. Oct. 18,
2012) (citing Curtis v. Pracht, 202 F.Supp.2d 406, 412 (D.Md.
2002)).
“A

non-moving

discovery

is

party’s

properly

Rule

denied

56(d)

‘where

request
the

for

additional

additional

evidence

sought for discovery would not have by itself created a genuine
issue of material fact sufficient to defeat summary judgment.’”
Hamilton, 807 F.Supp.2d at 342 (quoting Strag v. Bd. of Trs.,
Craven Cmty. Coll., 55 F.3d 943, 953 (4th Cir. 1995)).

When the

Court is satisfied that the Rule 56(d) motion should be granted,
the Court may: “(1) defer considering the motion [for summary
judgment] or deny it; (2) allow time to obtain affidavits or

7

declarations

or

to

appropriate order.”

take

discovery;

or

(3)

issue

any

other

Fed.R.Civ.P. 56(d).

In Washington’s Rule 56(d) affidavit, which he attaches to
his Motion, Washington emphasizes that the Prison Officials have
moved

for

summary

judgment

before

discovery

has

commenced.

(Pl.’s Mem. in Supp. of Mot. to Allow Time for Disc. under Rule
56(d) Ex. 2, at 1, ECF No. 46-2).

Washington also states that

he cannot present facts essential to justify his opposition to
the

Prison

discovery

Officials’
related

to

Motion
“all

for

Summary

grievances,

Judgment

whether

without

formal

or

informal, and other letters, forms, requests, and missives” he
filed at the BCDC.

(Id. at 4).

Washington further states that

he “wishes to take the depositions of Defendants.”

(Id. at 5).

The Prison Officials argue that the Court should not permit
discovery because Washington could have presented an affidavit
stating that he exhausted administrative remedies and Washington
should

already

Washington

have

asserts

possession
that

of

his

grievance

administrative

remedies

submissions.
were

not

available to him because “B.C.D.C. personnel” explicitly told
Washington that he could not file a grievance for a personal
injury.
Summ.

J.

(Pl.’s Opp’n to Defs.’ Mot. to Dismiss and/or for
at

8–9,

ECF

No.

45).

Obtaining

copies

of

his

grievances and deposing the Prison Officials, however, would not
generate any facts as to whether BCDC personnel—not the Prison
8

Officials

specifically—prevented

himself of BCDC’s grievance process.3

Washington

from

availing

Thus, the Court finds that

the evidence Washington seeks through discovery would not by
itself create a genuine issue of material fact sufficient to
defeat summary judgment and will deny Washington’s Motion.
B.

The Prison Officials’ Motion for Summary Judgment
1.

Standard of Review

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 the
moving

party

is

entitled

Fed.R.Civ.P. 56(a).

to

judgment

as

a

matter

of

law.

In reviewing a motion for summary judgment,

the Court views the facts in a light most favorable to the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144,
158–59 (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).
3

Rule 56(c) requires

Even assuming Washington intended to include the Prison
Officials in his reference to “BCDC personnel,” Washington does
not state what specific information he would attempt to glean
from the depositions of the Prison Officials. Parties must set
forth their specific discovery needs in their Rule 56(d)
affidavits. Archer, 2012 WL 5193828, at *4 (citing Curtis, 202
F.Supp.2d at 412).
9

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.
477 U.S. 317, 324 (1986).

Celotex Corp. v. Catrett,

The nonmoving party “cannot create a

genuine issue of material fact through mere speculation or the
building of one inference upon another.”

Beale v. Hardy, 769

F.2d 213, 214 (4th Cir. 1985) (citing Barwick v. Celotex Corp.,
736 F.2d 946, 963 (4th Cir. 1984)).
“[T]he
between

mere

the

existence

parties

will

of
not

some
defeat

alleged
an

factual

otherwise

dispute
properly

supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.”
at 247–48.

Anderson, 477 U.S.

A “material fact” is one that might affect the

outcome of a party’s case.

Id. at 248; see also JKC Holding Co.

v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th
Cir. 2001)).

Whether a fact is considered to be “material” is

determined by the substantive law, and “[o]nly disputes over
facts

that

governing
judgment.”

might
law

affect

will

the

properly

outcome
preclude

of

the

the

suit

entry

under
of

the

summary

Anderson, 477 U.S. at 248; accord Hooven-Lewis, 249

F.3d at 265.

A “genuine” issue concerning a “material” fact

arises when the evidence is sufficient to allow a reasonable
10

jury

to

return

a

verdict

in

the

nonmoving

party’s

favor.

Anderson, 477 U.S. at 248.
2.

Analysis

The

Prison

Litigation

Reform

Act

(“PLRA”),

42

U.S.C.

§

1997e(a) (2012), requires a prisoner confined in a jail, prison,
or

other

correctional

facility

to

exhaust

available

administrative remedies before filing a federal suit challenging
the

conditions

exhaustion

is

of

confinement.

mandatory

under

“There
the

PLRA

is

no

and

question

that

that

unexhausted

claims cannot be brought in court.” Haskins v. Hawk, No. ELH-112000, 2013 WL 1314194, at *8 (D.Md. Mar. 29, 2013) (quoting
Jones v. Bock, 549 U.S. 199, 211 (2007)).

“Proper exhaustion”

is required, “which ‘means using all steps that the agency holds
out, and doing so properly (so that the agency addresses the
issues on the merits).’”

Woodford v. Ngo, 548 U.S. 81, 90

(2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th
Cir. 2002)).
The PLRA explicitly provides that a prisoner must exhaust
the administrative remedies that are “available” to him.
U.S.C. § 1997e(a).

42

Although the PLRA does not define the term

“available,” the United States Court of Appeals for the Fourth
Circuit

has

“held

that

‘an

administrative

remedy

is

not

considered to have been available if a prisoner, through no
fault of his own, was prevented from availing himself of the
11

administrative remedy.’”

Graham v. Gentry, 413 F.App’x 660, 663

(4th Cir. 2011) (quoting Moore v. Bennette, 517 F.3d 717, 725
(4th Cir. 2008)).
The
exhaust

Prison

Officials

administrative

contend

remedies

that

because

Washington
he

never

did

not

submitted

a

grievance addressing the claims in his Second Amended Complaint.
The Prison Officials also argue that Washington cannot plausibly
contend that BCDC’s administrative remedies were unavailable to
him because he filed other grievances unrelated to the claims in
his Second Amended Complaint.

As explained above, Washington

counters that administrative remedies were not available to him
because BCDC personnel explicitly told him that he could not
file

a

grievance

challenging

the

conduct

that

led

to

the

injuries he suffered in the Second Attack.
The Prison Officials present several “Grievance Forms” that
Washington submitted when he was confined at BCDC.

Only one of

these Forms contains allegations arising from the Second Attack.
(Defs.’ Mot. to Dismiss and/or for Summ. J. Ex. 4, ECF No. 414).

This Form, however, does not address any of the claims in

the Second Amended Complaint; it focuses, instead, on BCDC’s
alleged failure to return Washington’s personal property after
the Second Attack.

(Id.).

12

Washington

presents

no

evidence

that

he

submitted

a

grievance addressing the claims in his Second Amended Complaint.
Instead, he presents an affidavit detailing statements that “Ms.
Savage,” a BCDC counselor and case worker, made when Washington
was

in

the

Washington

hospital

states

recovering

that

when

he

from

asked

the

Ms.

Second

Savage

Attack.

whether

he

should file a grievance before filing suit in court, Ms. Savage
responded that “she did not think [Washington] could” and “that
[Washington] should file a lawsuit.”

(Washington Aff. at 6, ECF

No. 51-1).4

Washington then states that following Ms. Savage’s

advice,

filed

he

grievance.
statements

the

(Id.).
create

present

suit

without

The Court finds that
a

genuine

dispute

grievance process was available to him.

as

submitting

a

Washington’s sworn
to

whether

BCDC’s

Accordingly, the Court

will deny the Prison Officials’ Motion for Summary Judgment.5

4

Pursuant to Rule 56(c)(4), “[a]n affidavit or declaration
used to support or oppose a motion must . . . set out facts that
would be admissible in evidence.”
Hearsay is inadmissible
except as otherwise provided by federal rule or statute.
Fed.R.Evid. 802.
“A statement is not hearsay if it is offered
to show that the statement was made, and not ‘to prove the truth
of the matter asserted’ in the statement.”
Mandengue v. ADT
Sec. Sys., Inc., No. ELH-09-3103, 2012 WL 892621, at *20 (D.Md.
Mar. 14, 2012) (quoting Fed.R.Evid. 801(c)).
Ms. Savage’s
statements would be admissible at trial because Washington does
not offer them to prove the truth of the matter asserted—that
BCDC’s grievance process does not allow a particular grievance—
but rather to prove that Ms. Savage made the statement and
explain why Washington did not pursue a grievance.
5
The Prison Officials also contend that even assuming Ms.
Savage’s statements create a genuine dispute as to whether
13

C.

The Prison Officials’ Motion to Dismiss
1.
“The

Standard of Review
purpose

of

a

Rule

sufficiency

of

a

surrounding

the

facts,

12(b)(6)

complaint,”
the

motion

not

to

merits

of

is

to

test

“resolve
a

the

contests

claim,

or

the

applicability of defenses.” Edwards v. City of Goldsboro, 178
F.3d 231, 243–44 (4th Cir. 1999) (quoting Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992).

A complaint fails to

state

“a

a

claim

if

it

does

not

contain

short

and

plain

statement of the claim showing that the pleader is entitled to
relief,” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to
relief that is plausible on its face,” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).

A claim is facially plausible “when the

administrative remedies were available to Washington, they only
create this genuine dispute as to Washington’s § 1983 claims.
The Prison officials cite no authority, and the Court finds
none, however, for the proposition that to be entitled to the
lack-of-availability defense, Washington must have identified
the six precise causes of action in his Second Amended Complaint
when he asked Ms. Savage whether he should file a grievance.
Such a requirement seems particularly unreasonable in this
instance because Washington was recovering from a brutal attack
and was not represented by counsel when he spoke with Ms.
Savage.
Furthermore, construing the facts in the light must
favorable to Washington, as the Court is required to do,
Washington asked Ms. Savage whether he should file a grievance
for the conduct leading to the injuries he sustained in the
Second Attack and Ms. Savage responded that she did not think
that was appropriate.
The Court finds that these facts are
sufficient to create a genuine dispute as to whether BCDC’s
grievance process was available to Washington for all of his
claims.
14

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

Id. (citing Twombly, 555 U.S. at 556).

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.”

Id.

(citing Twombly, 550 U.S. at 555).

Though the plaintiff is not

required

prove

to

forecast

evidence

to

the

elements

of

the

claim, the complaint must allege sufficient facts to establish
each element.

Goss v. Bank of Am., N.A., 917 F.Supp.2d 445, 449

(D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th
Cir.

2012)),

aff’d

sub

nom.,

Goss

v.

Bank

of

Am.,

NA,

546

F.App’x 165 (4th Cir. 2013).
In
construe

considering
the

a

Rule

complaint

in

12(b)(6)
the

motion,

light

most

the

court

favorable

must

to

the

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

Co.,

176

F.3d

776,

See Harrison v. Westinghouse Savannah
783

(4th

Cir.

1999)

(citing

Mylan

Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)).
But, the court need not accept unsupported or conclusory factual
allegations devoid of any reference to actual events, United
Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979),
or legal conclusions couched as factual allegations, Iqbal, 556
U.S. at 678.

15

2.

Analysis
a.

42 U.S.C. § 1983 Claims
i. Violations
of
the
Eighth
Amendments (Counts I, II)

and

Fourteenth

To prevail on a 42 U.S.C. § 1983 claim, a plaintiff must
demonstrate

a

deprivation

of

rights

guaranteed

by

the

Constitution or laws of the United States and that the alleged
deprivation was committed by a “person” acting under color of
state law.

42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48

(1988) (citation omitted).

Here, Washington alleges violations

of the Eighth and Fourteenth Amendments.
Because Washington was a pretrial detainee at the time of
the

Second

Attack,

his

Fourteenth Amendment.

§

1983

claims

are

governed

by

the

See Bell v. Wolfish, 441 U.S. 520, 535

n.16 (1979); Martin v. Gentile, 849 F.2d 863, 870 (4th Cir.
1988).

Nevertheless, the Court will apply the Eighth Amendment

standard when considering whether the Prison Officials violated
Washington’s Fourteenth Amendment right to due process.

See

Revels v. Shockley, No. 1:02-CV-03549-WMN, 2003 WL 23508097, at
*1 (D.Md. Mar. 12, 2003) (“[The Fourth] Circuit has routinely
applied

the

deliberate

indifference

standard

to

pretrial

detainees, affirming that their due process rights are at least
coextensive

with

the

Eighth

Amendment

16

rights

of

convicted

prisoners.” (citing Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.
1999))), aff’d, 66 F.App’x 520 (4th Cir. 2003).
To establish an Eighth Amendment violation based on the
failure to prevent harm to an inmate, an inmate must demonstrate
two elements: (1) the inmate “is incarcerated under conditions
posing a substantial risk of serious harm;” and (2) a prison
official acted in “deliberate indifference” to the substantial
risk of serious harm.
(1994).

Farmer v. Brennan, 511 U.S. 825, 834

A court assesses the first element using an objective

standard and the second using a subjective standard.
834, 837.
when

he

See id. at

A prison official acts in deliberate indifference
has

actual

knowledge

that

an

inmate

“face[s]

a

substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.”

Id. at 847.

Constructive knowledge will not suffice—“the official must both
be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.”
establish

Id. at 837.

deliberate

In other words, inmates cannot

indifference

if

the

prison

officials

charged with Eighth Amendment violations prove “that they did
not

know

of

the

underlying

facts

indicating

a

sufficiently

substantial danger and that they were therefore unaware of a
danger, or that

they knew the underlying facts but believed

17

(albeit unsoundly) that the risk to which the facts gave rise
was insubstantial or nonexistent.”

Id. at 844.

The Prison Officials contend that Count I must be dismissed
because Eighth Amendment claims raised by pretrial detainees are
governed by the Fourteenth Amendment.
are, indeed,

To be sure, those claims

governed by the Fourteenth Amendment.

But the

Prisoner Officials cite no authority, and the Court finds none,
for

the

proposition

that

those

claims

should

be

summarily

dismissed simply because they are governed by another Amendment.
Moreover, as a matter of logic, it does not follow that Eighth
Amendment claims raised by pretrial detainees must be dismissed
out

of

hand

simply

because

they

are

governed

by

another

Amendment, especially when these claims are assessed under the
Eighth Amendment standard.

Thus, the Court will deny the Prison

Officials’ Motion to Dismiss Count I on these grounds.
The

Prison

Officials

next

assert

that

the

Court

should

dismiss Count II as to Secretary Maynard because Washington does
not allege that Secretary Maynard was deliberately indifferent
toward Washington’s predicament.

The Court agrees.

Washington

does not allege that he ever informed Secretary Maynard, by
letter

or

otherwise,

that

he

feared

Dovi

would

attack

him.

Consequently, Washington does not allege the actual knowledge
required to state a claim against Secretary Maynard.

The Court

will, therefore, grant the Prison Officials’ Motion to Dismiss
18

as to Count II against Secretary Maynard only.

Because Count I

and Count II are analyzed under the same standard, the Court
will also grant the Prison Officials’ Motion to Dismiss as to
Count I against Secretary Maynard only.
The Prison Officials further argue that the Court should
dismiss Count II as to Warden Tuthill and Captain Moore because
Washington does not allege that they drew the inference that
Dovi’s

presence

serious

harm

belies

the

to

in

B-section

Washington.

allegations

in

created
The
the

a

significant

Prison

Officials’

Second

Amended

risk

of

argument

Complaint.

Washington alleges that Warden Tuthill and Captain Moore had
actual knowledge of the initial attack on Washington by the BGF,
the BGF’s hegemony within the BCDC, the danger the BGF posed to
inmates who chose not to cooperate in their criminal enterprise
within the BCDC, Dovi’s presence in B-section notwithstanding
Washington’s repeated pleas to be relocated, and “the very real
danger” Dovi’s presence in B-section posed to Washington.
¶¶ 5–7, 38, 42, 44–45, 50, 52–54, 63).

(SAC

The allegation that

Warden Tuthill and Captain Moore had actual knowledge of the
danger that Washington faced implies they drew the inference
that Dovi’s presence in B-section created a substantial risk of
serious harm to Washington.

What is more, Washington explicitly

alleges that Warden Tuthill and Captain Moore “were aware of the
facts from which the inference could be drawn that a substantial
19

risk of serious harm existed for Mr. Washington, and [they] drew
this

inference.”

(Id.

¶¶

55,

64).

Thus,

the

Court

finds

Washington sufficiently alleges that Warden Tuthill and Captain
Moore drew the inference of a substantial risk of serious harm
and will deny the Motion to Dismiss Count II as to these Prison
Officials.
ii.

Supervisory Liability (Count III)

There is no respondeat superior liability under 42 U.S.C. §
1983.

Love–Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004).

Thus, “for an individual to be liable under § 1983, it must be
‘affirmatively shown that the official charged acted personally
in the deprivation of the plaintiff’s rights.’”

Garraghty v.

Va., Dep’t of Corr., 52 F.3d 1274, 1280 (4th Cir. 1995) (quoting
Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)).

It is

well-settled, however, that “supervisory officials may be held
liable in certain circumstances for the constitutional injuries
inflicted by their subordinates.”

Baynard v. Malone, 268 F.3d

228, 235 (4th Cir. 2001) (quoting Shaw v. Stroud, 13 F.3d 791,
798 (4th Cir. 1994)).
ordinary

principles

premised

on

tacit

‘a

Supervisory liability “is not based on
of

respondeat

recognition

authorization

of

that

superior,

supervisory

subordinates’

but

rather

is

indifference

or

misconduct

may

be

a

causative factor in the constitutional injuries they inflict on

20

those committed to their care.’”

Id. (quoting Slakan v. Porter,

737 F.2d 368, 372 (4th Cir. 1984)).
Plaintiffs “assume[] a heavy burden of proof in supervisory
liability

cases.”

Slakan,

737

F.2d

at

373.

To

establish

supervisory liability, a plaintiff must demonstrate:
(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.
Baynard, 268 F.3d at 235 (quoting Shaw, 13 F.3d at 799).

To

satisfy the first element of this test, “the conduct engaged in
by the supervisor’s subordinates must be ‘pervasive,’ meaning
that the ‘conduct is widespread, or at least has been used on
several different occasions.’”

Randall v. Prince George’s Cty.,

Md., 302 F.3d 188, 206 (4th Cir. 2002) (quoting Shaw, 13 F.3d at
799).
Washington alleges that at the time of the Second Attack,
numerous

BCDC

elaborate
Washington

employees

criminal

were

aiding

enterprise

specifies

that

and

within
BCDC
21

abetting

BCDC.

employees

the

(SAC

BGF’s

¶

30).

smuggled

and

transported contraband and concealed the BGF’s activities within
the BCDC from law enforcement.

(Id. ¶ 32).

Significantly,

however, Washington does not allege that BCDC employees aided
and abetted the BGF by failing to protect inmates from attacks
by the BGF.

Although Washington alleges that “BGF habitually

attacked inmates who refused to cooperate with their criminal
schemes,” he does not detail a single instance, other than his
own,

of

another

BCDC

employees

inmate.

Washington

has

(Id.

failing
44).

pled

not

¶

the

to

prevent

a

Accordingly,
pervasive

BGF
the

conduct

attack

Court

on

finds

required

to

satisfy the first element of a claim for supervisory liability
and will grant the Prison Officials’ Motion to Dismiss as to
Count III.
b.

Negligence and Negligent Hiring, Supervision, and
Retention (Counts IV, V)
i.

The

Prison

Public Official Immunity
Officials

argue

that

the

Supervisor

Prison

Officials are entitled to common law public official immunity.
A

governmental

representative

immunity when: (1)
official;

(2)

representative
ministerial

is

the representative

the

tortious

was

performing

acts;

entitled

and

(3)

malice or gross negligence.

conduct

the

to

public

official

is acting as a public
occurred

discretionary
representative

while
rather

acted

the
than

without

Cooper v. Rodriguez, 118 A.3d 829,

22

854 (Md. 2015); Livesay v. Balt. Cty., 862 A.2d 33, 39 (Md.
2004).

“Prison

guards

are

considered

purposes of public official immunity.

public

officials”

for

Rodriguez v. State, 98

A.3d 376, 401 (Md.Ct.Spec.App. 2014) (citing Carder v. Steiner,
170 A.2d 220, 276 (Md. 1961), overruled on other grounds by
James v. Prince George’s Cty., 418 A.2d 1173 (Md. 1980)), aff’d
sub nom., Cooper, 118 A.3d 829.

More generally, an individual

qualifies as a public official when he “acts as an arm of the
State.”
222).

Livesay, 862 A.2d at 40 (quoting Carder, 170 A.2d at
Assigning

relocation

housing

requests

administrators.

are

units

to

inmates

discretionary

and

functions

considering
of

prison

See Gaston v. Taylor, 946 F.2d 340, 343 (4th

Cir. 1991).
In this context, “[m]alice is established by proof that
[the defendant] intentionally performed ‘an act without legal
justification or excuse, but with an evil or rancorous motive
influenced

by

hate,

the

purpose

wilfully injure [the plaintiff].’”

being

to

deliberately

and

Kebe v. Brown, 161 F.Supp.2d

634, 644–45 (D.Md. 2001) (quoting Williams v. Mayor of Balt.,
753 A.2d 41, 57 n.16 (Md. 2000)).
intentional

failure

to

perform

a

Gross negligence is “an
manifest

duty

in

reckless

disregard of the consequences as affecting the life or property
of another.”
935

A.2d

699,

Cooper, 118 A.3d at 845 (quoting Barbre v. Pope,
717

(Md.

2007)).
23

It

“implies

a

thoughtless

disregard of the consequences without the exertion of any effort
to avoid them.”
717).

Id. at 845–46 (quoting Barbre, 935 A.2d at

“Ordinarily, unless the facts are so clear as to permit a

conclusion as a matter of law, it is for the trier of fact to
determine

whether

a

defendant’s

negligent

conduct

amounts

to

gross negligence.” Id. at 846 (quoting Taylor v. Harford Cty.
Dep’t of Soc. Servs., 862 A.2d 1026, 1034 (Md. 2004)).
While Secretary Maynard and Warden Tuthill were not prison
guards like Captain Moore, they were arms of the state that
served the Maryland Department of Public Safety and Correctional
Services.

The

requests—fell
Officials.
any

genesis

within

alleges

the

Washington’s

discretion

of

claims—his
the

relocation

Supervisor

Prison

Washington’s Second Amended Complaint is devoid of

allegations

Supervisor

of

from

Prison
that

which

the

Officials

the

Prison

Court

acted

with

Officials

could

infer

malice.

that

the

Washington

exhibited

“callous

indifference to [Washington’s] health and safety,” but callous
indifference is far from “an evil or rancorous motive influenced
by

hate.”

Kebe

v.

Brown,

161

F.Supp.2d

at

645

(quoting

Williams, 753 A.2d at 57 n.16; (SAC §§ 78, 85).
Washington

does,

however,

allege

facts

sufficient

to

constitute gross negligence by Warden Tuthill and Captain Moore.
Washington

avers

intentionally

and

that

Warden

recklessly

Tuthill
ignored

24

and

Captain

Washington’s

Moore

repeated

requests to be relocated to another housing unit notwithstanding
their knowledge that Dovi had previously attacked Washington.
(SAC ¶¶ 42, 44–45, 50, 52–54, 61, 63, 78, 85, 87).
further

alleges

that

Warden

Tuthill

and

Washington

Captain

Moore

disregarded the excessive risk to Washington’s health and safety
that

Dovi

requests.

posed

when

(Id.).

they

ignored

Washington’s

relocation

Thus, at this stage of the litigation, Warden

Tuthill and Captain Moore are not entitled to public official
immunity for Counts IV and V.
The same

cannot be said of

Secretary Maynard.

Because

Washington does not allege that he informed Secretary Maynard of
the imminent risk he faced and the continued inaction of the
other Prison Officials notwithstanding their actual knowledge of
that risk, the Court finds that Washington fails to aver that
Secretary Maynard intentionally failed to protect him.

Thus,

the Court finds that Secretary Maynard is entitled to public
official immunity for Counts IV and V.
ii.

Governmental Immunity

The Prison Officials further argue that they are entitled
to

governmental

immunity

because

Washington

action for negligence—not gross negligence.
that

although

he

does

not

bring

causes

brings

causes

of

Washington counters
of

action

for

gross

negligence, he nevertheless alleges that the Prison Officials
acted in a grossly negligent manner.
25

Under

the

Maryland

Tort

Claims

Act

(“MTCA”),

“[s]tate

personnel shall have the immunity from liability described under
§

5-522(b)

[“CJP”].”

of

the

Courts

and

Judicial

Proceedings

Article

Md.Code Ann., State Gov’t § 12-105 (West 2015).

CJP

§ 5-522(b), in turn, provides that state personnel “are immune
from suit in courts of the State and from liability in tort for
a tortious act or omission that is within the scope of the
public duties of the State personnel and is made without malice
or gross negligence, and for which the State or its units have
waived immunity.”
To be sure, Washington does not bring a cause of action for
gross
facts

negligence.

But,

constituting

as

previously

gross

negligence.

discussed,

alleges

Court

The

he

finds,

therefore, that Washington alleges sufficient facts to defeat,
at the pleadings stage, governmental immunity under the MTCA.
Accordingly,
Secretary

Maynard

at
is

this

juncture

immune

alleged in Counts IV and V.

from

of

the

litigation,

liability

for

the

only

conduct

Because Washington only brings

claims for negligence, not gross negligence, however, the Court
will grant the Prison Officials’ Motion to Dismiss as to Counts
IV

and

V

against

Washington to

all

the

Prison

amend these Counts

Officials,
only as to

Captain Moore, Sergeant Porter, and CO Ffowlkes.

26

but

will

direct

Warden Tuthill,

c.
The

Intentional Infliction of Emotional Distress
(“IIED”) (Count VI)

Prison

Officials

contend

that

Washington

allege a single element of a claim for IIED.

fails

to

To state a claim

for IIED, Washington must allege four elements: (1) intentional
or reckless conduct; (2) extreme and outrageous conduct; (3) a
causal connection between the wrongful conduct and the emotional
distress; and (4) severe emotional distress.

Harris v. Jones,

380 A.2d 611, 614 (Md. 1977); Arbabi v. Fred Meyers, Inc., 205
F.Supp.2d 462, 465–66 (D.Md. 2002).

In Maryland, IIED claims

are “rarely viable” and, thus, subject to a heightened pleading
standard.

Bagwell v. Peninsula Reg’l Med. Ctr., 665 A.2d 297,

319 (Md.Ct.Spec.App. 1995).

Each of the four elements of an

IIED claim must “be pled . . . with specificity.”
Juvenile
1989).
claim,

Servs.

Admin.,

552

A.2d

947,

959

Foor v.

(Md.Ct.Spec.App.

When assessing whether a plaintiff has pled an IIED
“the

four

elements

of

the

tort

must

coalesce,

i.e.,

unite, combine or blend into a single body.”

Reagan v. Rider,

521 A.2d 1246, 1251 (Md.Ct.Spec.App. 1987).

The Court should

not

“separately

consider

each

of

the

four

independently from the others.”

elements

and

Id.

A plaintiff satisfies the first element of an IIED claim
when

he

emotional

demonstrates

a

distress,

knew

defendant
that

27

“desired

such

to

distress

inflict
was

severe

certain

or

substantially
recklessly

certain

in

to

result

deliberate

from

his

disregard

of

conduct,

or

high

degree

a

acted
of

probability that emotional distress would follow.” Brengle v.
Greenbelt
(quoting

Homes,

Inc.,

Interphase

804

F.Supp.2d

Garment

447,

Sols.,

LLC

452
v.

(D.Md.

Fox

2011)

Television

Stations, Inc., 566 F.Supp.2d 460, 466 (D.Md. 2008)).
As for the second element, “[l]iability has been found only
where the conduct has been so outrageous in character, and so
extreme

in

decency,

degree,

and

to

as
be

to

go

beyond

regarded

as

all

possible

atrocious,

intolerable in a civilized community.”

bounds

and

of

utterly

Harris, 380 A.2d at 614

(quoting Restatement (Second) of Torts § 46 cmt. d (Am.Law Inst.
1965)).
being,

“The conduct must strike to the very core of one’s
threatening

to

shatter

emotional fabric is hung.”
502

A.2d

1057,

1064

the

frame

upon

which

one’s

Hamilton v. Ford Motor Credit Co.,

(Md.Ct.Spec.App.

1986).

In

assessing

whether a plaintiff has alleged extreme and outrageous conduct,
“courts should consider multiple factors, including the context
in which the conduct occurred, the personality of the plaintiff
and

[his]

susceptibility

to

emotional

distress,

relationship between the defendant and plaintiff.”
F.Supp.2d at 453.

and

the

Brengle, 804

“[T]he extreme and outrageous character of

the defendant’s conduct may arise from his abuse of a position,
or

relation

with

another

person,
28

which

gives

him

actual

or

apparent authority over him, or power to affect his interests.”
Harris, 380 A.2d at 616.
The

fourth

element

of

an

IIED

claim

imposes

a

“high

burden.”

See Manikhi v. Mass Transit Admin., 758 A.2d 95, 114–

15

2000)

(Md.

(collecting

cases).

“[F]or

distress

to

be

sufficiently severe to state a claim for [IIED], the plaintiff
must

show

that

he

suffered

a

severely

disabling

emotional

response to the defendant’s conduct,’ and that the distress was
so severe that no reasonable man could be expected to endure
it.”

Solis v. Prince George’s Cty., 153 F.Supp.2d 793, 804

(D.Md. 2001) (quoting Thacker v. City of Hyattsville, 762 A.2d
172,

197

(Md.Ct.Spec.App.

2000)).

To

be

severe,

emotional

distress need not produce total emotional disablement, but it
must

render

the

plaintiff

necessary matters.

unable

to

function

Reagan, 521 A.2d at 1250.

and

tend

to

“[S]everity must

be measured in light of the outrageousness of the conduct and
the other elements of the tort.”
1182

(Md.

1988)

(citing

B.N. v. K.K., 538 A.2d 1175,

Reagan,

521

A.2d

at

1251).

“In

appropriate cases, ‘severe’ emotional distress may be inferred
from

the

extreme

conduct alone.”
Washington
Officials

and

outrageous

nature

of

the

defendant’s

Reagan, 521 A.2d at 1251 (citation omitted).
does

relayed

Secretary Maynard.

not
the

aver

that

details

of

he

or

any

of

Washington’s

the

Prison

plight

to

While Washington alleges he wrote numerous
29

letters expressing his fear and dire need for relocation, he
never alleges that he sent any of these letters to Secretary
Maynard.
Prison

Consequently,

Officials

acted

Washington’s
with

allegation

“extreme

that

recklessness”

all

is

the

wholly

conclusory as to Secretary Maynard because Washington does not
allege any facts from which the Court could infer Secretary
Maynard

deliberately

Washington

would

disregarded

suffer

a

emotional

high

probability

distress.

(SAC

¶

that
87).

Accordingly, the Court finds Washington fails to state an IIED
claim

against

Secretary

Maynard

and

will

grant

the

Prison

Officials’ Motion to Dismiss as to Count VI against Secretary
Maynard only.
As

for

allegation
(Id.

¶

of

87).

the

remaining

“extreme

Prison

recklessness”

Washington

alleges

Officials,
is

that

far
he

Washington’s

from

informed

conclusory.
the

other

Prison Officials on multiple occasions that he feared for his
safety because Dovi previously attacked him and BCDC placed Dovi
in B-section following Dovi’s release from punitive segregation.
(SAC ¶ 41–45, 50, 52–54, 61, 63).

Washington also states that

the

aware

other

Prison

Officials

were

that

the

BGF

would

routinely attack other inmates who refused to cooperate in the
BGF’s criminal enterprise within BCDC.

(Id. ¶ 44).

Thus, the

Court finds that Washington sufficiently alleges that the other
Prison Officials deliberately disregarded the high probability
30

that Washington would endure emotional distress if he were not
relocated.
Washington

alleges

various

grave

transgressions

by

corrections officers and their supervisors—the very personnel
tasked with maintaining order, peace, and safety in the BCDC.
Because they exercise dominion over virtually every aspect of an
inmate’s daily life in prison, corrections officers and their
supervisors have the utmost power to affect the interests of
inmates.
this

Washington alleges that the Prison Officials abused

power

when

they

repeatedly

ignored

his

requests

to

be

relocated notwithstanding their knowledge that Dovi was likely
to attack Washington again and even explicitly threatened to do
so.

Furthermore, the Second Attack left Washington seriously

disfigured and he was forced to interact with BCDC staff and the
other

inmates

prosthetic

with

empty

eye

Contributing

socket

a

Based on

Court

finds

a

received

disfigurement strikes to the very core of one’s being.
the

such

he

physical

allegations,

to

until

grave

these

eye.

an

that

Washington

has

sufficiently alleged extreme and outrageous conduct.
The Prison Officials’ contention that Washington does not
allege a causal connection between the extreme and outrageous
conduct

utterly

contradicts

Amended Complaint.

the

allegations

of

the

Second

Washington avers that “[a]s a direct and

proximate result of [the Prison Officials’] reckless, extreme,
31

and outrageous conduct, Mr. Washington endured a horrific attack
. . . in which he lost his eye and suffered other emotional,
psychological, and physical injuries.”

(SAC ¶ 89).

The Second

Amended Complaint is also replete with other allegations from
which

the

Court

can

reasonably

infer

the

causal

connection.

(See id. ¶¶ 57, 59, 67, 72, 77, 83).
The Prison Officials argue Washington fails to allege the
fourth element of an IIED claim because he does not allege that
he is unable to tend to everyday affairs.

Washington states

that as a result of the Second Attack, he must take medication
to manage the “severe anxiety” and “crippling panic attacks” he
“regularly endures” and attend meetings with a trauma support
group.

(SAC ¶¶ 7, 48, 57, 65).

He also alleges that he remains

under medical supervision at RCI.

(Id. ¶¶ 57, 65).

While these

repercussions from the Second Attack might be insufficient on
their own to constitute severe emotional distress, they cross
that

threshold

when

considered

conduct that Washington pleads.

in

light

of

the

outrageous

Considering their positons of

authority and control over Washington’s safety and wellbeing,
the Prison Officials’ conduct in deliberately facilitating the
Second Attack is particularly outrageous.

When this outrageous

conduct is coupled with the emotional distress that Washington
specifically details, the Court finds Washington pleads severe
emotional distress.
32

Accordingly,

because

Washington

sufficiently

alleges

all

four elements on an IIED claim, the Court will deny the Prison
Officials’ Motion to Dismiss as to Count VI against all the
Prison Officials except Secretary Maynard.
CONCLUSION
Based

on

the

foregoing

reasons,

Washington’s

Motion

to

Allow Time for Discovery under Rule 56(d) (ECF No. 46) will be
DENIED, the Prison Officials’ Motion for Summary Judgment (ECF
No. 41) will be DENIED, and the Prison Officials’ Motion to
Dismiss (ECF No. 41) will be GRANTED in part and DENIED in part.
Counts III, IV, and V of the Second Amended Complaint will be
DISMISSED.

Counts

I,

II,

Secretary Maynard only.

and

VI

will

be

DISMISSED

as

to

The Court will direct Washington to

amend Counts IV and V only as to Warden Tuthill, Captain Moore,
Sergeant Porter, and CO Ffowlkes
Second

Amended

Maynard.

Complaint

will

be

within fourteen days.
DISMISSED

as

to

Secretary

A separate Order follows.

Entered this 7th day of March, 2016
Very truly yours,
/s/
____________________________
George L. Russell, III
United States District Judge

33

The