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
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