Duncan v. McKenzie et al

Filing 34

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 4/20/2016. (c/m 4/21/16)(krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BRUCE DUNCAN,

:

Plaintiff,

:

v.

:

OFFICER C. MCKENZIE, et al.,

:

Defendants.

Civil Action No. GLR-15-736

:
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendants’, Correctional
Officer Christopher McKenzie, Lieutenant Bradley Wilt, and Warden
Bobby Shearin (collectively, the “Corrections Defendants”), Motion
to Dismiss or, in the Alternative, Motion for Summary Judgment
(ECF

No.

20),

and

Defendant’s,

Wexford

Health

Sources,

Inc.

(“Wexford”), Motion to Dismiss and/or, in the Alternative, Motion
for Summary Judgment (ECF No. 22) and Motion to Quash (ECF No.
32).

Also pending before the Court is pro se Plaintiff Bruce

Duncan’s Motion for Leave to Amend his Complaint (ECF No. 29).
The Motions are ripe for disposition.
The

Court,

having

reviewed

the

Motions

and

the

parties’

briefs, finds no hearing necessary pursuant to Local Rule 105.6
(D.Md. 2014).
the

For the reasons that follow, the Court will grant

Corrections

Defendants’

and

Wexford’s

Motions

for

Summary

Judgment, deny Duncan’s Motion for Leave to Amend his Complaint,
and deny as moot Wexford’s Motion to Quash.

I.

BACKGROUND

At all times relevant to his Complaint, Duncan was an inmate
at

the

North

Cumberland,

Branch

Maryland.

Correctional
Officer

Institution

McKenzie,

(“NBCI”)

Lieutenant

Wilt,

Warden Shearin were part of NBCI’s corrections staff.

in
and

Wexford

provided health care services to NBCI inmates.
In September 2013, NBCI was on “lock-down,” meaning that the
privileges and movements of inmates within the institution were
restricted due to security concerns.

During this time, inmates

were

cafeteria;

not

permitted

to

eat

personnel

delivered

meals

in

to

the

inmates

in

instead,
cells.

their

NBCI
NBCI

personnel would pass food trays through a security slot (also
known as a “feed up slot”), which is a rectangular opening in the
doors to the prison cells.

NBCI personnel can open, close, and

lock the security slot from outside the cell, but inmates can
prevent the slot from being closed by sticking an arm or other
appendage through the opening.
On September 13, 2013, Officer McKenzie was responsible for
collecting food trays from the inmates in Housing Unit 3, where
Duncan was housed.

While Officer McKenzie was collecting the

trays, Duncan was inside his cell speaking with his tier officer
about

retrieving

facility.
officer,

Duncan
his

hand

his

sheets

concedes
was

and
that

protruding
2

clothing
while

from

speaking

outside

the

the
to

laundry
his

security

tier
slot.

(Compl. at 4, ECF No. 1).

Duncan alleges that because he was “not

getting anywhere with the tier officer,” he asked to speak with a
sergeant.

(Id.).

The parties offer competing accounts of what

ensued (the “Incident”).
According

to

Duncan,

Officer

McKenzie

approached

Duncan’s

cell and without saying anything, sprayed his entire can of mace
in Duncan’s face, eyes, and mouth while yelling racial epithets at
Duncan.

According to Officer McKenzie, when he attempted to close

the security slot to Duncan’s cell after collecting Duncan’s food
tray,

Duncan

stuck

McKenzie’s efforts.

his

arm

in

the

slot

to

thwart

Officer

Officer McKenzie asked Duncan to remove his

arm, but Duncan refused.

Officer McKenzie then advised Plaintiff

that refusing to remove his arm would result in force being used,
including using pepper spray1 to gain compliance.
refused.

Duncan again

Officer McKenzie then gave Duncan a direct order to

remove his arm from the security slot, but Duncan remained defiant
and used profane language.

Officer McKenzie proceeded to disperse

a “short burst” of pepper spray in Duncan’s facial area.
McKenzie Decl. ¶ 7, ECF No. 20-2).

(Officer

Duncan’s cellmate received

secondary exposure to the pepper spray.

1

Duncan refers to the chemical substance sprayed in his face
as “mace.”
The Corrections Defendants contend that the NBCI
corrections staff discontinued the use of mace approximately ten
years ago.
(Lieutenant Wilt Decl. ¶ 5, ECF No. 20-3). The
Corrections Defendants maintain that Officer McKenzie used pepper
spray in the Incident. (Id.).
3

Shortly
corrections

after
staff

the

Incident,

transported

other

Duncan

members

and

his

of

the

cellmate

NBCI

to

medical room in Housing Unit 3 where they could be treated.
Michelle

Schultz,

a

Wexford

employee,

examined

the

Nurse

Duncan

and

explained that although she would not personally wash the pepper
spray off of Duncan, he would receive a decontamination shower.
Duncan then received his decontamination shower, but he alleges
that the water was “boiling and sc[a]lding hot” and his request to
adjust the water temperature was denied.
further

complains

that

although

his

(Compl. at 6).

cellmate

received

Duncan
shower

shoes, soap, a washcloth, and a clean set of clothes to wear after
his decontamination shower, Duncan was denied all of these items.
Later that day, Duncan talked to Lieutenant Wilt about the
conditions

of

Duncan’s

decontamination

shower.

Duncan

alleges

that Lieutenant Wilt told him to “deal with it” because it was
Duncan’s fault that he was exposed to pepper spray.
Duncan then requested that

Lieutenant

(Id. at 7).

Wilt provide him a cold

shower, but Lieutenant Wilt refused.
In March 2014—approximately six months after the Incident—
Duncan began complaining about eye irritation purportedly related
to the Incident.

Duncan asserts that instead of applying a saline

solution to his eyes, Wexford employees provided him contact lens
solution

and

artificial

tears.

4

Duncan

alleges

that

those

substances only exacerbated his eye irritation and disrupted his
vision.
Duncan initiated this action on March 16, 2015, raising 42
U.S.C. § 1983 (2012) claims for excessive use of force and failure
to provide medical care associated with the Incident.
1).

The

Corrections

Defendants

and

Wexford

filed

(ECF No.
Motions

to

Dismiss or, in the Alternative, Motions for Summary Judgment on
September 1 and September 4, 2015, respectively.
22).

(ECF Nos. 20,

Duncan filed Oppositions on September 23, 2015 (ECF Nos. 26,

27), and Wexford submitted a Reply on October 13, 2015 (ECF No.
28).

On October 30, 2015, Duncan filed a Motion for Leave to

Amend his Complaint (ECF No. 29), requesting leave to add Nurse
Schultz as a defendant; it is unopposed.

On the same date, Duncan

filed two requests for documents from NBCI and Wexford.
30,

31).

Duncan

filed

his

requests

under

the

(ECF Nos.
Freedom

of

Information Act, 5 U.S.C. §§ 552 et seq. (2012) and the Maryland
Public Information Act, Md.Code Ann., State Gov’t §§ 10-612 et
seq. (West 2015).

On November 11, 2015, Wexford filed a Motion to

Quash these requests (ECF No. 32); it is unopposed.

5

II.

DISCUSSION

A. Motions to Dismiss or, in the Alternative, Motions for Summary
Judgment
1.

Standard of Review

Defendants style their Motions as motions to dismiss under
Federal Rule of Civil Procedure 12(b)(6) or, in the alternative,
for summary judgment under Rule 56.

A motion styled in this

manner implicates the Court’s discretion under Rule 12(d).

See

Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F.Supp.2d
431, 436–37 (D.Md. 2011), aff’d sub nom., Kensington Volunteer
Fire Dep’t, Inc. v. Montgomery Cty., Md., 684 F.3d 462 (4th Cir.
2012).

Pursuant

to

Rule

12(d),

when

“matters

outside

the

pleadings are presented to and not excluded by the court, the
[Rule 12(b)(6)] motion must be treated as one for summary judgment
under Rule 56.”
The Court “has ‘complete discretion to determine whether or
not to accept the submission of any material beyond the pleadings
that is offered in conjunction with a Rule 12(b)(6) motion and
rely on it, thereby converting the motion, or to reject it or
simply not consider it.’”

Wells-Bey v. Kopp, No. ELH-12-2319,

2013 WL 1700927, at *5 (D.Md. Apr. 16, 2013) (quoting 5C Wright &
Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004,
2012 Supp.)).

“This discretion ‘should be exercised with great

caution and attention to the parties’ procedural rights.’”
6

Id.

(quoting

Federal

exercising

this

considering

Practice

&

Procedure

discretion,

materials

the

beyond

§

Court

the

1366,

at

should

pleadings

149).

assess
“‘is

When
whether

likely

to

facilitate the disposition of the action,’ and ‘whether discovery
prior to the utilization of the summary judgment procedure’ is
necessary.” Id. (quoting Federal Practice & Procedure § 1366, at
165–67).

Other than these factors, the Court is guided by the

United States Court of Appeals for the Fourth Circuit’s two-part
test for proper conversion of a Rule 12(b)(6) motion to a Rule 56
motion.

Under

this

test,

the

“parties

[must]

be

given

some

indication by the court that it is treating the 12(b)(6) motion as
a motion for summary judgment” and “the parties [must] first ‘be
afforded a reasonable opportunity for discovery.’”

Greater Balt.

Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264,
281 (4th Cir. 2013) (quoting Gay v. Wall, 761 F.2d 175, 177 (4th
Cir. 1985)).
When

the

alternative”

movant

as

one

expressly
for

captions

summary

its

judgment

motion

and

submits

“in

the

matters

outside the pleadings for the court’s consideration, the parties
are deemed to be on notice that conversion under Rule 12(d) may
occur.

See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005).

“[T]he

party

opposing

summary

judgment

‘cannot

complain

that

summary judgment was granted without discovery unless that party
has made an attempt to oppose the motion on the grounds that more
7

time was needed for discovery.’”

Harrods Ltd. v. Sixty Internet

Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v.
Techs.
1996)).

Applications

&

Serv.

Co.,

80

F.3d

954,

961

(4th

Cir.

Rule 56(d) provides that the Court may deny or continue a

motion for summary judgment “[i]f a nonmovant shows by affidavit
or

declaration

that,

for

specified

reasons,

facts essential to justify its opposition.”

it

cannot

present

The Court should deny

a non-moving party’s Rule 56(d) request for additional discovery
when “the additional evidence sought for discovery would not have
by itself created a genuine issue of material fact sufficient to
defeat

summary

judgment.”

Hamilton

v.

Mayor

of

Balt.,

807

F.Supp.2d 331, 342 (D.Md. 2011) (quoting Strag v. Bd. of Trs.,
Craven Cmty. Coll., 55 F.3d 943, 953 (4th Cir. 1995)).
Here, Defendants caption their Motions in the alternative for
summary judgment and attach matters beyond Duncan’s Complaint for
the Court’s consideration.

Duncan, in addition to submitting his

own exhibits to oppose summary judgment, has filed two requests
for information.
of

all

the

Duncan requests that Defendants provide copies

purchase

orders

for

pepper

spray

decontamination

chemicals NBCI procured in 2012–2014 and a copy of the written
procedure for decontaminating an inmate following an incident of
pepper spraying.

Duncan also requests a variety of statistics.

Considering his pro se status and the prohibition against exalting
form

over

substance,

see

Monge
8

v.

Portofino

Ristorante,

751

F.Supp.2d

789,

792

n.1

(D.Md.

2010),

the

Court

will

construe

Duncan’s requests as Rule 56(d) discovery requests.

Because none

of

whether

the

information

Duncan

seeks

is

material

to

the

Defendants used excessive force or failed to provide medical care
in this case, however, the
Additionally,

the

Court

Duncan’s

will

discovery

is

concludes

extra-pleading

materials

materials

facilitate

not

Court will deny Duncan’s requests.

required

the

that

because

are

comprehensive,

disposition

before

Defendants’

ruling

of
on

this

and

these

action

summary

and

judgment.

Thus, the Court will construe Defendants’ Motions as motions for
summary judgment.
In reviewing a motion for summary judgment, the Court views
the facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party’s favor.

Ricci v. DeStefano,

557 U.S. 557, 586 (2009); 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)).
demonstrates,
record,

through

including

information,
admissions,

Summary judgment is proper when the movant
“particular

depositions,

affidavits
interrogatory

or

parts

of

documents,

declarations,
answers,

or

materials

in

electronically
stipulations

other

the

stored
.

materials,”

.

.

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), (c)(1)(A).

Once a motion for summary judgment is properly
9

made and supported, the opposing party has the burden of showing
that a genuine dispute of material fact exists.

Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
There is a genuine dispute of material fact when the evidence is
sufficient to allow a reasonable jury to return a verdict in the
nonmovant’s favor.
2.

Anderson, 477 U.S. at 248.

Analysis
a.

The Corrections
Judgment

Defendants’

i.

Exhaust

Failure
Defense

to

Motion

for

Administrative

Summary
Remedies

The Corrections Defendants first argue that Duncan failed to
exhaust his administrative remedies.
Corrections

Defendants’

Motion

The Court will deny the

for

Summary

Judgment

on

this

affirmative defense because they fail to demonstrate that Duncan’s
appeal to the Inmate Grievance Office (“IGO”) was procedurally
defective.
The

Prisoner

Litigation

Reform

Act

(“PLRA”)

provides

that

“[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a
prisoner

confined

in

any

jail,

prison,

or

other

correctional

facility until such administrative remedies as are available are
exhausted.”
provision

42 U.S.C. § 1997e (2012).

requires

inmates

to

pursue

The PLRA’s exhaustion

administrative

grievances

until they receive a final denial of the claims, appealing through
10

all available stages in the administrative process.

Chase v.

Peay, 286 F.Supp.2d 523, 530 (D.Md. 2003), aff’d, 98 F.App’x 253
(4th Cir. 2004).

Administrative exhaustion under § 1997e(a) is

not a jurisdictional requirement, however, and does not impose a
heightened pleading requirement on the prisoner.

Anderson v. XYZ

Corr. Health Servs., Inc., 407 F.3d 674, 678, 681 (4th Cir. 2005).
Rather, an inmate’s failure to exhaust administrative remedies is
an affirmative defense that the defendant must plead and prove.
Id. at 681.
Maryland has established an Administrative Remedy Procedure
(“ARP”)

whereby

inmates

can

conditions of confinement.

file

complaints

related

to

their

Blake v. Ross, 787 F.3d 693, 697 (4th

Cir.), cert. granted, 136 S.Ct. 614 (2015); see Md.Code Regs. §
12.07.01.01 (2016).

“The ARP involves a three-step process: the

inmate files a request for remedy with the warden, then appeals a
denial to the Commissioner of Corrections, and finally appeals any
subsequent denial to the [IGO].”

Blake, 787 F.3d at 697.

To

satisfy the PLRA’s exhaustion requirement, an inmate must pursue
his complaint through all three steps.

See Chase v. Peay, 286

F.Supp.2d 523, 530 (D.Md. 2003), aff’d, 98 F.App’x 253 (4th Cir.
2004).
On

September

26,

challenging

Officer

during

Incident

the

2013,

McKenzie’s

Duncan

submitted

alleged

excessive

(“ARP-NBCI-2998-13”).
11

an

ARP
use

request
of

(Corrections

force
Defs.’

Mot. to Dismiss or, in the Alternative, Mot. for Summ. J. Ex. 3,
at 10–11, ECF No. 20-4).

On October 8, 2013, Warden Shearin

dismissed ARP-NBCI-2998-13, concluding that Duncan’s allegations
were “without merit.”

(Id. at 9).

A week later, Duncan appealed

to the Commissioner of Corrections.

(ECF No. 26-1 at 9).

December 30, 2013, Duncan filed an appeal with the IGO.

On

(Id. at

16–17).
The Corrections Defendants attempt to demonstrate that Duncan
did not exhaust administrative remedies because his IGO appeal was
procedurally defective.

They submit a declaration from Scott S.

Oakley, the Executive Director of the IGO, in which Oakley details
Duncan’s

IGO

appeal

history.

(Oakley

Decl.,

ECF

No.

20-5).

Oakley states that the IGO dismissed the appeal related to ARPNBCI-2998-13 on April 25, 2014 because Duncan did not provide the
documents

required

by

Maryland

12.07.01.01(B)(9)(a).

(Id. ¶ 3a).

13,

describes

however,

Oakley

Code

of

Regulations

When discussing ARP-NBCI-2998-

the

ARP

request

as

addressing

Duncan’s complaint “about limitations imposed by NBCI officials on
the

time

and

complaints.”
Oakley

is

manner
(Id.).

referring

in

which

NBCI

inmates

could

submit

ARP

It appears that the ARP request to which
is

one

other

than

ARP-NBCI-2998-13.

Consequently, the Court finds that the Corrections Defendants have
failed to show that Duncan’s IGO appeal concerning ARP-NBCI-2998-

12

13 was procedurally defective and that Duncan failed to exhaust
administrative remedies.
ii.

Supervisory Liability Defense

The Corrections Defendants next contend that even accepting
that

Officer

McKenzie

and

Lieutenant

Wilt

violated

Duncan’s

constitutional rights, Warden Shearin cannot be vicariously liable
for this misconduct.

The Court agrees and will grant summary

judgment for Warden Shearin on all claims.
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. Com. of

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)).
well-settled,

however,

that

“supervisory

officials

may

It is
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)).

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
13

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.
Id. (quoting Shaw, 13 F.3d at 799).
Duncan does not present any evidence that would permit a
reasonable

jury

to

find

that

any

of

the

requirements

for

supervisory liability are present in this case.

Accordingly, the

Court

Shearin

will

grant

summary

judgment

for

Warden

on

all

claims.
iii. Claim for Excessive Use of Force
Duncan complains that Officer McKenzie used excessive force
during

the

Incident.

The

Court

will

grant

the

Corrections

Defendants’ Motion for Summary Judgment as to this claim because
Officer McKenzie’s use of force does not satisfy the objective or
subjective components of an Eighth Amendment claim.
Claims that prison officials used excessive force implicate
the Eighth Amendment to the United States Constitution.

Tedder v.

Johnson, 527 F.App’x 269, 272 (4th Cir. 2013) (quoting Williams v.
Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)).
“protects

inmates

imprisoned.”
prison

from

inhumane

treatment

Williams, 77 F.3d at 761.

officials

have

violated

14

an

The Eighth Amendment
and

conditions

while

To determine whether

inmate’s

Eighth

Amendment

rights,

the

components.
Under
“whether

Court

must

analyze

and

subjective

Id.
the

the

objective

component,

deprivation

suffered

inmate was sufficiently serious.”
serious

objective

for

purposes

of

the

the

or

Court

injury

Id.

must

consider

inflicted

on

the

“An injury is sufficiently

objective

component

of

an

Eighth

Amendment excessive force claim as long as it rises above the
level of de minimus harm.”

Iko v. Shreve, 535 F.3d 225, 238 (4th

Cir. 2008) (citing Hudson v. McMillian, 503 U.S. 1, 9–10 (1992)).
Additionally,

satisfying

the

objective

that the force used be ‘nontrivial.’”
CV-03838,

2014

WL

2591281,

at

*5

component

“demands

only

Evans v. Martin, No. 2:12(S.D.W.Va.

June

10,

2014)

(quoting Wilkins v. Gaddy, 559 U.S. 34, 39 (2010)).
Under

the

subjective

component,

the

Court

must

assess

“whether the prison official acted with a sufficiently culpable
state of mind.”
required

in

Williams, 77 F.3d at 761.

excessive

infliction of pain.’”

force

claims

factors

‘wantonness

in

the

Iko, 535 F.3d at 239 (quoting Whitley v.

Albers, 475 U.S. 312, 322 (1986)).
non-exclusive

is

“The state of mind

when

assessing

The Court may consider four
whether

a

prison

acted with wantonness:
(1) “the need for the application of force”;
(2) “the relationship between the need and the
amount of force that was used”; (3) the extent
of any reasonably perceived threat that the
application of force was intended to quell;
15

official

and (4) “any efforts made to
severity of a forceful response.”
Id. (quoting Whitley, 475 U.S. at 321).

temper

the

The Court should also

consider “whether force was applied in a good faith effort to
maintain or restore discipline or maliciously and sadistically for
the very purpose of causing harm.”

Miller v. Leathers, 913 F.2d

1085, 1087 (4th Cir. 1990) (quoting Whitley, 475 U.S. at 320–21).
Force is applied in a good faith effort to restore order and
discipline when a corrections officer administers a single burst
of

pepper

inmate.

spray

after

a

verbal

confrontation

initiated

by

an

See Trusell v. Bailey, No. 5:09CV101-RJC, 2011 WL 972571,

at *7 (W.D.N.C. Mar. 15, 2011).
Furthemore,

“[i]t

is

generally

recognized

that

‘it

is

a

violation of the Eighth Amendment for prison officials to use
mace, tear gas or other chemical agents in quantities greater than
necessary

or

for

the

sole

purpose

of

infliction

of

pain.”

Williams, 77 F.3d at 763 (quoting Soto v. Dickey, 744 F.2d 1260,
1270

(7th

Cir.

1984)).

Mace

can

be

used

constitutionally,

however, “in small quantities . . . to control a ‘recalcitrant
inmate.’”

Id. (quoting Landman v. Peyton, 370 F.2d 135, 138 & n.2

(4th Cir. 1966).
Nurse Schultz physically examined Duncan shortly after the
Incident.
not

In her physical examination report, Nurse Schultz did

identify

any

physical

injuries

or

irregularities.

(Corrections Defs.’ Mot. to Dismiss or, in the Alternative, Mot.
16

for Summ. J. Ex. 1 [“Officer McKenzie Decl. with Attachs.”], at 7,
ECF No. 20-2).

Instead, Nurse Schultz indicated that Duncan was

merely experiencing an “alteration in comfort” from the pepper
spray exposure and that he was given a decontamination shower.
(Id. at 7, 8).

Duncan had subsequent medical appointments on

October 16, 23, and 30, 2013; November 1 and 9, 2013; and February
21, 2014.

(Def. Wexford’s Mot. to Dismiss or, in the Alternative,

Mot. for Summ. J. Ex. A, at 5, 7, 9, 11, 12, 17, ECF No. 22-4).
The

medical

reports

associated

with

these

appointments

do

not

reflect that Duncan complained of any pain, discomfort, or other
complications from the pepper spray exposure.

(Id.).

Duncan

presents no evidence to dispute these medical reports.

As such,

because

anything

there

is

no

evidence

that

Duncan

experienced

greater than de minimus harm from the pepper spray exposure, the
Court finds that Officer McKenzie’s use of force does not satisfy
the objective component of an Eight Amendment claim.
Even assuming that the objective component is satisfied, the
Court also finds that the subjective component is not satisfied.
Following the incident, Officer McKenzie prepared a Use of Force
Incident Report.

(Officer McKenzie Decl. with Attachs. at 5).

In

his report, Officer McKenzie states that after collecting Duncan’s
food tray, Duncan thrust his arm out of the security slot.

(Id.).

Officer McKenzie continues that after making several requests that
Duncan remove his arm from the slot, including one direct order,
17

Duncan refused to comply and shouted defiant, vulgar epithets.
(Id.).

Officer McKenzie then states that he “dispersed a short

burst of pepper spray to . . . Duncan’s facial area.”

(Id.).

Officer McKenzie echoed this statement of facts in his August 19,
2015 Declaration.
In
Wilt,

a

(Officer McKenzie Decl. ¶¶ 1–9).

subsequent

Officer

investigation

McKenzie’s

shift

of

Inmate

Rule

the

Incident,

supervisor,

McKenzie’s version of the facts.
Attachs. at 5, 6).

of

Lieutenant

confirmed

Officer

(Officer McKenzie Decl. with

Officer McKenzie also issued Duncan a Notice

Violation

arising

from

the

Incident,

which

Lieutenant Wilt and Officer McKenzie’s Shift Commander approved.
(Id. at 3–4).
formally

cited

In the Notice, Officer McKenzie and Lieutenant Wilt
Duncan

for

violating

Rule

116,

tampering

with

security equipment; Rule 312, interfering with or resisting the
performance of staff duties; Rule 400, disobeying an order; and
Rule 405, demonstrating disrespect or using vulgar language.
at 3).

(Id.

On October 3, 2013, NBCI personnel held an adjustment

hearing to adjudicate the rule violations for which Duncan was
charged.

(Corrections

Defs.’

Mot.

to

Dismiss

or,

Alternative, Mot. for Summ. J. Ex. 3, at 3, ECF No. 20-4).
pleaded guilty to all charges.

in

the

Duncan

(Id.).

Based on these undisputed facts, the Court concludes that
Officer McKenzie’s use of force does not satisfy the subjective
component of an Eighth Amendment claim. First, Officer McKenzie
18

used a small amount of pepper spray to control a recalcitrant
inmate.
it

in

Second, the force was necessary and Officer McKenzie used
a

good

faith

effort

to

restore

order

and

discipline.

Third, because Officer McKenzie dispersed only one short burst of
pepper spray, the force was not greater than necessary and Officer
McKenzie made an effort to temper his use of force.
In sum, Officer McKenzie’s use of force satisfies neither the
objective nor subjective components of an Eighth Amendment claim.
Accordingly,

the

Court

will

grant

the

Corrections

Defendants’

Motion for Summary Judgment on Duncan’s claim for excessive use of
force.
iv.

Claim for Failure to Provide Medical Care

Duncan asserts that the Corrections Defendants violated his
Eighth Amendment rights when they failed to provide medical care
after

the

Incident.

Defendants’

Motion

as

The
to

Court
this

will

claim

grant

the

Corrections

because

the

Corrections

Defendants did not exhibit deliberate indifference.
To prevail on an Eighth Amendment claim for denial of medical
care, a prisoner must demonstrate that the action or inaction of
prison

staff

medical need.

amounted

to

deliberate

indifference

to

a

serious

See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Deliberate indifference to a serious medical need requires proof
that the prisoner was objectively suffering from a serious medical
need and the prison staff was subjectively aware of the need, but
19

failed to either provide medical attention or ensure that it was
available.
medical

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

need

expectation
health care.

must
that

be

objectively

prisoners

will

serious
receive

because

there

unqualified

is

no

access

to

See Hudson v. McMillian, 503 U.S. 1, 9 (1992).

To

satisfy the subjective component of deliberate indifference, the
prisoner must show recklessness, which “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).
Here, instead of forcing Duncan to remain in his cell and
risk continued exposure to residual pepper spray, NBCI corrections
staff removed Duncan from his cell shortly after the Incident.
(See Officer McKenzie Decl. with Attachs. at 5, 7) (reflecting
that the Incident occurred at 11:15 a.m. and Duncan was present in
the medical room at 11:36 a.m.).
cell,

NBCI

corrections

staff

After removing Duncan from his

transported

him

directly

to

the

medical room in Housing Unit 3 where he could receive medical
treatment.

(Id.

at

5).

Nurse

Schultz

then

examined

Duncan,

determining that he had no physical injuries, but was experiencing
an “alteration in comfort” from the pepper spray exposure.
at 7, 8).

(Id.

After Nurse Schultz’s examination, NBCI corrections

staff provided Duncan a shower.

(Id. at 6).

Although the water

in the shower may have been hot, there is no evidence that Duncan
20

was unable to use some of the water to wash himself or that NBCI
corrections staff had any control over the temperature.2

Following

the shower, NBCI corrections staff did not return Duncan to his
prior

cell

where

pepper

spray

might

still

have

been

present,

instead transferring him to the segregated housing unit.

(See

Corrections Defs.’ Mot. to Dismiss or, in the Alternative, Mot.
for Summ. J. Ex. 2, at 3, ECF No. 20-3) (showing transfer from
Housing Unit 3 to Housing Unit 1 on September 13, 2013).
Based on these undisputed facts, the Court finds that the
Corrections Defendants did not exhibit deliberate indifference and
will grant the Corrections Defendants’ Motion as to Duncan’s claim
for failure to provide medical care.
b.

Wexford’s Motion for Summary Judgment

Duncan also brings a claim against Wexford for failure to
provide medical care.

Specifically, Duncan alleges that Wexford

violated his Eighth Amendment rights when its employees provided
him contact lens solution and artificial tears to manage his eye
irritation instead of a saline solution.

The Court will grant

Wexford’s Motion.

2

As for Duncan’s complaint that he did not receive shower
shoes, soap, and other accoutrements before his decontamination
shower, the Court notes that “conditions that are merely
restrictive or even harsh, ‘are part of the penalty that criminal
offenders pay for their offenses against society.’”
Stroud v.
Warden, No. CIV.A. ELH-12-1354, 2012 WL 5839870, at *6 (D.Md. Nov.
16, 2012) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
21

As

explained

liability

under

§

previously,
1983.

there

is

Love–Lane,

no

355

respondeat
F.3d

at

superior

782.

Even

assuming Wexford could be vicariously liable under § 1983 for the
acts of its employees,3 “[a]n inmate’s mere disagreement with the
course of treatment provided by medical officers will not support
a valid Eighth Amendment claim.”

Jackson v. Sampson, 536 F.App’x

356, 357 (4th Cir. 2013) (citing Russell v. Sheffer, 528 F.2d 318,
319 (4th Cir. 1975)).
employees

were

To the extent Duncan alleges that Wexford

negligent

in

treating

his

eye

irritation,

“a

complaint that a physician has been negligent in diagnosing or

3

Duncan has also filed a Motion for Leave to add Wexford
employee Nurse Schultz as a defendant.
(ECF No. 29).
Duncan
asserts that Nurse Schultz failed to provide him medical care when
she refused to personally flush his eyes out after the Incident.
Federal Rule of Civil Procedure 15(a) provides that a party
may amend its pleading once as a matter of course within twentyone days after service of a motion under Rule 12(b).
Because
Duncan did not meet this deadline, the Court may grant him leave
to amend his Complaint if “justice so requires.”
Fed.R.Civ.P.
15(a)(2).
The Court should deny leave to amend when leave to
amend would be futile.
Laber v. Harvey, 438 F.3d 404, 426 (4th
Cir. 2006).
Leave to amend would be futile when an amended
complaint could not survive a motion to dismiss.
Perkins v.
United States, 55 F.3d 910, 917 (4th Cir. 1995 (first citing Glick
v. Koenig, 766 F.2d 265, 268–69 (7th Cir. 1985); then citing 6
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1487 n.26 (2d ed. 1990)).
Here, the Court finds leave to amend would be futile.
Because Duncan concedes that he received a decontamination shower,
albeit one with hot water, any allegations by Duncan against Nurse
Schultz would fail to state a plausible claim for deliberate
indifference.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that “[t]o 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.” (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). The Court
will, therefore, deny Duncan’s Motion.
22

treating

a

medical

condition

does

not

state

a

medical mistreatment under the Eighth Amendment.”
U.S. at 106.

valid

claim

of

Estelle, 429

Thus, the Court will grant Wexford’s Motion.4
III. CONCLUSION

Based on the foregoing reasons, the Corrections Defendants’
and Wexford’s Motions for Summary Judgment (ECF Nos. 20, 22) are
GRANTED.

Duncan’s Motion for Leave to Amend (ECF No. 29) is

DENIED and Wexford’s Motion to Quash (ECF No. 32) is DENIED AS
MOOT.

A separate Order follows.

Entered this 20th day of April, 2016
Very truly yours,
/s/
____________________________
George L. Russell, III
United States District Judge

4

Because the Court will grant summary judgment for all
Defendants on all claims, the Court will deny as moot Wexford’s
Motion to Quash (ECF No. 32).
23