Kamara v. Prince George's County Correctional Institution
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 2/24/2017. (c/m 2/24/2017)(ko, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. ELH-15-3952
PRINCE GEORGE’S COUNTY DEPARTMENT *
OF CORRECTIONS, et al.,
Zainab Kamara, the self-represented plaintiff, filed a civil rights suit against a host of
defendants, pursuant to 42 U.S.C. § 1983, arising out of a seemingly unprovoked and brutal
attack upon plaintiff in 2014, committed by a fellow detainee at the Prince George’s County
Department of Corrections (“PGCDC”).1 ECF 1; ECF 4. In general, she alleges that the
correctional defendants failed to protect her and that she was provided inadequate medical care
for the injuries she sustained during the assault.
Defendants Abu Kalokoh; Meskerem Asresahegn, M.D.; and David Ijeh, M.D.
(“Medical Defendants) filed a motion to dismiss or, in the alternative, for summary judgment.
ECF 30. It is supported by a memorandum (ECF 30-1) (collectively, “Medical Defendants’
Motion”) and several exhibits. Defendants PGCDC; Mary Lou McDonough; Harry L. Hilton;
Adedeji Adewunmi; Corporal Diamon Baker; Corporal Shayla Stewart; Private First Class
Yvette Ford; and Corporal Dawn Taylor (“Correctional Defendants”) have moved for summary
judgment. ECF 44.2 Their motion is supported by a memorandum (ECF 44-1) (collectively,
At the time, plaintiff was awaiting trial in the Circuit Court for Prince George’s County
on multiple charges. See ECF 44-2. She has since been convicted. Id.
The Clerk shall amend the docket to reflect the full and correct names of defendants.
“Correctional Defendants’ Motion”) and exhibits, including a surveillance or tier video of the
assault. See ECF 44-4. Plaintiff opposes both motions. ECF 36; ECF 48; ECF 49. In sum, her
contentions are similar to the allegations in her suit. The Medical Defendants filed a Reply at
ECF 37, along with another exhibit. ECF 37-1.
In a status report submitted by plaintiff on November 7, 2016 (ECF 43), plaintiff asserted
that she could not download the surveillance video and thus she was unable to review it. Id. at 23. She asked for the “Win-Media format.” Id. at 3. By Order of February 3, 2017 (ECF 51), I
directed counsel for the Correctional Defendants, within fourteen days of my Order, to provide
Kamara with the opportunity to review the video. Id. In a letter of February 15, 2017 (ECF 52),
counsel advised that plaintiff viewed the DVD on that date, from 11:05 a.m. to 12:25 p.m. Id.
Counsel also stated that plaintiff would be furnished with another copy of the DVD, for her use.
Id. In my Order (ECF 51), I gave plaintiff ten days to supplement her response after she viewed
the video. She did so on February 23, 2017. See ECF 53.
No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2016).
For the reasons that follow, defendants’ motions, construed as motions for summary judgment,
shall be granted.
On November 19, 2014, while Kamara was detained at PGCDC, she was viciously
attacked in the lunch room by fellow detainee Erika Sellers.3 Plaintiff claims that she “almost
lost [her] life.” ECF 1 at 3. According to plaintiff, Sellers is mentally ill and has a history of
attacking other inmates. Id. Further, Kamara asserts that during the assault she twice lost
consciousness, but the officers on duty during the attack, Baker, Stewart, Ford, and Taylor, failed
The assailant’s name appears in the record as Seller and Sellers. See, e.g., ECF 1 at 3;
ECF 30-1 at 2. ECF 30-4, ¶ 5; ECF 44-1 at 3. The discrepancy is immaterial to the issues.
to call for the emergency response team (“ERT”) in a “timely manner.” Id. Plaintiff also states
that when Officer Stewart wanted to call the ERT, Baker, the lead officer, told Stewart to let
plaintiff get “her ass bit up first . . . .” Id. In addition, plaintiff asserts that “the officers did
nothing to protect [her] or assist [her], no [sic] even try to stop it, it was a total negligent . . . .”
Id. Rather, the officers “were saying fight back Kamara,” expected her to fight back, and were
“cheering the fight . . . .” Id. Plaintiff also complains that it took “about fifteen mins [sic] for the
ERT to come and stop it.” Id. According to Kamara, when the ERT arrived, she “was on the
floor lifeless, hopeless, and helpless . . . .” Id.
Plaintiff claims that she suffered multiple injuries, including a soft tissue head injury, and
endured extreme pain. Moreover, plaintiff asserts that she “was never take [sic] to the hospital
even with inter cranial fluid (CF) is coming out of [her] nose” and her “maxillary artery was
open . . . .” Id. According to plaintiff, she received inadequate medical care.
Kamara indicates that she filed criminal charges against Sellers regarding the attack but
was not transported to court by the PGCDC on the date of Sellers’s trial. Id. at 3-4. Because
plaintiff was not present to testify, the charges against Sellers were dropped. Id. at 4. Further,
plaintiff indicates that she asked for inmate grievance forms but never received them. Id. at 2-3.
Plaintiff clarified her claims in her amendment to the complaint. See ECF 4. She asserts
that she is at risk of harm and an easy target due to her background and accent. Id. at 1.
Additionally, plaintiff indicates that she has sued Mary Lou McDonough as the Director of the
According to plaintiff, McDonough was “grossly negligent” in managing the
correctional officers. Plaintiff also claims that McDonough was aware of the violation of
plaintiff’s rights but did nothing to correct the situation. Further, she alleges that McDonough is
responsible for housing mentally ill inmates with plaintiff. Id.
Lt. Col Harry L. Hilton was the Chief of Security at the time of the assault and it was his
job to insure the safety of the inmates. Plaintiff asserts that “he was very negligent” because he
did not seek care for plaintiff until three days after the attack. Id.
Kamara alleges that Abu Kaloko, Medical Administrator, did nothing “to help meet” her
“medical needs . . . .” Id.at 2. She also alleges that Kaloko charged plaintiff for medication.
Plaintiff states that she submitted several forms to obtain medical records but never received
In addition, plaintiff complains that Meskerem Asresahegn, M.D., the facility physician,
did not see her until a week after the attack. On several occasions, plaintiff requested to be
transported to the hospital, because she was suffering severe pain in her back, neck, side, and
suffered from headaches. Id. But, Dr. Asresahegn refused to have plaintiff transported to the
hospital for a second opinion. Id.
According to plaintiff, David Ijeh, M.D., the psychiatrist for the institution, knew that
Sellers was mentally ill, with a history of attacking other inmates. However, he did nothing to
prevent the episode. Id. at 2. Similarly, plaintiff states that the administration at PGCDC knew
about the mental history of Sellers, yet they did nothing to prevent the attack. Id. at 4.
According to plaintiff, Sgt. Adewunmi was the supervisor on duty at the time of the
attack. Id. Plaintiff maintains that he “did nothing to prevent” this “attack.” Id. at 2.
Further, Kamara claims that Officer D. Baker was “the lead staff on duty” on the day of
the “deadly attack,” and “[s]he did nothing to stop the attack. She was cheering” for plaintiff to
fight back. Id. at 3. Nor did Baker call the ERT “on time,” and she advised plaintiff that facility
protocol did not allow her to stop the attack. Id. Plaintiff alleges that Baker did not follow
facility policy and procedure to protect plaintiff and promote safety. Id.
Officers Stewart, Ford, and Taylor were also on duty at the time of the attack and
allegedly did nothing to stop the fight. Id. at 3-4. According to Kamara, Stewart encouraged her
to fight back. Id. at 3. Plaintiff also states that Stewart attempted to call the ERT but was stopped
by the lead officer. Id.
Plaintiff submitted declarations from three fellow detainees who witnessed the assault.
Ashley McCrae avers that when plaintiff was attacked by Sellers on November 19, 2014, four
correctional officers did not protect Kamara, and the ERT was not called for “some good amount
of time.” ECF 12 at 1. Helene Newsome avers that she saw Sellers attack plaintiff while the
officers “were just standing their [sic] do nothing to stop the attack.” ECF 12-1 at 1. She avers
that it took “almost 15 min[utes] before the ERT come to the unit . . . . Id. Further, she asserts
that the staff “neglected to maintain the order and protect Kamara against the violence . . . .” Id.
Jade Cooper avers that she heard the attack but did not see it. Cooper recalls that she heard an
inmate screaming for Sellers to stop but officers were urging plaintiff “to fight back” as plaintiff
cried for help. According to Cooper, the fight went on for about fifteen minutes before she heard
the ERT team. ECF 12-2 at 1.
Defendants do not dispute that plaintiff was spontaneously assaulted by Sellers. Corporal
Diamon Garrison (formerly Diamon Baker), Corporal Shyla Stewart, Private First Class Officer
Yvette Ford, and Corporal Dawn Taylor each aver that on November 19, 2014, they were
assigned to Housing Unit 3 (“H-3”) at the PGCDC, where plaintiff was housed. ECF 44-3 at 2, ¶
3 (Baker Affidavit); ECF 44-5, ¶ 3 (Stewart Affidavit); ECF 44-6, ¶ 2 (Ford Affidavit); ECF 447, ¶ 3 (Taylor Affidavit). As the detainees were eating lunch, they observed Sellers approach
plaintiff from behind and begin hitting plaintiff with a closed fist. No loud arguing preceded the
assault. ECF 44-3 at 2, ¶ 3-4; ECF 44-5, ¶ 4; ECF 44-6, ¶ 3; ECF 44-7, ¶ 4. Stewart
immediately called a “Signal 80” over the radio, requesting the ERT to respond to the unit.
Stewart also ordered the detainees to “lock in.” ECF 44-3 at 2-3, ¶ 5; ECF 44-5, ¶¶ 5 & 6; ECF
44-6, ¶ 4; ECF 44-7, ¶ 5. Ford and Taylor also commanded the detainees to lock in while Ford
operated the control panel to secure the doors and Taylor went upstairs to make sure the
detainees were secured as ordered. ECF 44-6, ¶¶ 5 & 8; ECF 44-7, ¶ 6. Baker was the first
officer to approach Sellers and plaintiff, when plaintiff was on the ground. ECF 44-3 at 3, ¶ 12.
Baker and Stewart saw Sellers kick plaintiff after plaintiff fell to the ground. ECF 44-3 at
3, ¶ 6.; ECF 44-5, ¶ 7. Both Baker and Stewart approached Sellers and commanded her to stop
kicking plaintiff. Sellers briefly complied and yelled “Back the fuck up! You bitches know how I
go. I will fuck ya’ll up too.” ECF 44-3 at 3, ¶ 7; ECF 44-5, ¶ 8. Baker and Stewart continued to
direct Sellers to stop the assault upon plaintiff, but Sellers refused to obey the commands. ECF
44-3 at 3, ¶ 9; ECF 44-5, ¶ 9. The ERT responded to the unit, quelled the situation, and escorted
both detainees to the medical unit. ECF 44-3 at 3, ¶ 10; ECF 44-5, ¶ 10; ECF 44-6, ¶ 6.
Corporal Baker, Corporal Stewart, Private First Class Ford, and Corporal Taylor averred
that they had no prior reason to believe that Sellers would attack Kamara, nor was there any
indication that Sellers harbored ill will towards plaintiff. ECF 44-3, ¶ 13; ECF 44-5, ¶ 12; ECF
44-6, ¶ 9; ECF 44-7, ¶ 9. Moreover, plaintiff had never expressed concern about Sellers prior to
the incident. ECF 44-3, ¶ 14; ECF 44-5, ¶ 13; ECF 44-6, ¶ 10; ECF 44-7, ¶ 10. This was the
first time that they saw Sellers attack plaintiff. Id. After the incident, Baker completed an
incident report. ECF 44-3 at 3, ¶ 11; see ECF 44-3 at 21-22.
Baker, Stewart, Ford, and Taylor each reviewed the surveillance video, which is
discussed, infra. Each has averred that it is a fair and accurate depiction of the incident. ECF
44-3 at 3, ¶ 11; ECF 44-5, ¶ 11; ECF 44-6, ¶ 7; ECF 44-7, ¶ 8. Baker identified herself as the
first officer who ran to the scene when plaintiff was already on the ground, by the pay phone.
ECF 44-3 at 3 ¶ 12. Stewart identified herself as the officer behind the desk who picked up the
radio to call ERT. ECF 44-5, ¶ 11. Ford identified herself as the officer behind the desk working
the control panel. ECF 44-6, ¶ 7. Taylor identified herself as the officer who walked upstairs.
ECF 44-7, ¶ 8.
On the date of the incident, Adedeji Adewunmi was the Zone Commander for Zone 4,
shift 2, working in a supervisory capacity. ECF 44-8, ¶ 3. He was not present on H-3 when the
assault occurred. However, he heard the Signal 80 for the ERT and responded to the incident. Id.
¶ 4. When he arrived on H-3 the ERT was already there. Id. ¶ 6. After the incident Adewunmi
conducted an investigation, which included review of the video footage, interviews of the
correctional officers and detainees, and instructions to Baker to complete an incident/infraction
report. Id. ¶ 7. As a result of the investigation, Adewunmi charged Sellers with rule violations,
including Failure to Obey Orders of Staff, Threat to Staff, and Assault. Id. ¶ 8, ECF 44-8 at 5.
Adewunmi also provided plaintiff with a notification of rights form and plaintiff initiated
criminal charges against Sellers. Id. ¶ 9; ECF 44-7 at 7. Adewunmi maintains that he had no
reason to expect such conduct by Sellers. ECF 44-8, ¶¶ 10 & 11.
Doctor Ijeh is employed as a psychiatrist at the PGCDC. ECF 30-4, ¶ 1. He has been
licensed in Maryland since 1994. Id. ¶ 3. Ijeh avers that he personally treated both plaintiff and
Sellers, and “was not aware of any propensity for violence on the part of Sellerss.” Id.¶ 5. Nor
was he aware that she ever had attacked other inmates. Id. Ijeh further avers that he was not
aware of a risk of harm to plaintiff. Id. He also recounts plaintiff’s mental health treatment
while detained. ECF 30-4, ¶¶ 6-27.
The Prince George’s County Correctional Center Policy and Procedure Manual is
relevant. ECF 44-3 at 8. Section D provides, in pertinent part, that where there is a disturbance
in the housing unit the housing unit officer will:
Notify the Central Control Officer via radio or the emergency phony system;
Order the non-involved inmates to their cells and place them on lockdown;
Attempt to quell a minor disturbance (e.g. fight between inmates) by issuing
verbal commands to the involved inmates;
Never place himself between fighting inmates but will wait for assistance from
responding Emergency Response Team (ERT) officers. . . .
The Correctional Defendants submitted as an exhibit the DVD tier video of the incident.
ECF 44-4 (filed separately). The video has no sound. It is a compilation of six cameras that
were in use, five of which portray different angles of the lunch area where the assault occurred.
The sixth camera focuses on the location where the ERT entered the area.
As noted, plaintiff filed a supplement (ECF 53) based on her review of the tier video.
She asserts: “It was very clear [in the video] that the officers were negligent, deliberate and
indifferent.” Id. at 1. I disagree.
I reviewed the video several times. It shows that plaintiff was suddenly attacked at
10:15:57 a.m., according to the video timeline. Four female correctional officers were located
behind a counter and they immediately sprang into action when the fight erupted.
correctional officer immediately got on the telephone or radio. Within ten seconds, two of the
correctional officers began to move towards the altercation. By 10:16:15, those two officers and
another inmate are seen next to plaintiff and Sellers. The body language of the officers suggests
that the officers sought to stop the fight, although they did not attempt physically to restrain
Sellers. The other guards were directing the other detainees in the area to leave.
At 10:16:19, one of the correctional officers pulled away a detainee who was not
involved in the fight, but who was standing next to the assailant. At that moment, Sellers
paused. Two officers were in close proximity to Sellers. They were then joined by a third
officer. It appears that the correctional officers exchanged words with Sellers from 10:16:19 to
10:16:27, during which Sellers again paused.
Sellers resumed her assault on plaintiff at
10:16:27. Three correctional officers then stepped several feet away, while gesturing vigorously
at Sellers. The correctional officers seemed agitated and appeared to be shouting.
Sellers then paused again, from about 10:17:04 to 10:17:16. The officers were still
pointing at Sellers, from a distance of a few feet. At around 10:17:17, the attack resumed. Two
officers move towards the assailant. At 10:17:23, two of the correctional officers were still
within very close range of the fight, but they did not physically attempt to subdue Sellers. At
10:17:25, six male ERT officers entered through doors onto the unit. Sellers submitted to their
The Medical Defendants submitted over 160 pages of plaintiff’s medical records. See
ECF 30-3.4 The records show that plaintiff was evaluated by a nurse at 11:20 a.m. on November
19, 2014, i.e., shortly after the attack. Id. 2-3. The entry indicates that she was the “Victim of
Violent Incident.” Id. at 2. Plaintiff was crying and upset. Id. She complained of head pain,
and had a big knot on her forehead, but she was not found to be in acute distress. Id. at 2-3.
However, her blood pressure was elevated and, as a result, she was placed on a three-day blood
pressure check. Id. at 2. Plaintiff requested an x-ray of her head, nose, “sides,” and chest. She
complained of blurred vision and a headache. Id. at 4. The nurse gave plaintiff ice and Tylenol.
The nurse also directed plaintiff to contact medical staff if her symptoms worsened. Id. at 3.
The following day, November 20, 2014, plaintiff was seen by a mental health provider.
They discussed the recent incident. Id. at 36. Plaintiff was oriented to time, person, place, and
The record includes some duplicates.
situation and exhibited no gross cognitive defects. She was appropriately groomed and was calm
and cooperative. ECF 30-3 at 36. The diagnosis stated, id.: “Depression with psychotic
features.” Id. The plan was to “continue individual therapy.” Id.
On November 21, 2014, plaintiff was seen by a physician assistant due to her complaints
of facial bruises and decreased vision. Id. at 60-61. She also complained of generalized muscle
aches and tenderness. Id. Significant hair loss was noted and plaintiff’s head was bruised. Id. at
60. However, her pupils were equal and reactive to light, although moderate swelling and periorbital discoloration was noted. Id. Plaintiff was diagnosed as suffering from facial bruises,
bilateral peri-orbital edema, musculoskeletal pain, and hair loss. She was prescribed Loratadine,
an antihistamine used to decrease swelling, for fourteen days. Id.
Meskerem Asresahegn, M.D., a physician employed at PGCDC and licensed in Maryland
since 1998, submitted two declarations.
ECF 30-2; ECF 37-1.
He first saw plaintiff on
November 24, 2014, five days after her altercation with Sellers. ECF 30-2, ¶¶ 3, 5; ECF 37-1,
¶ 5. At that time, plaintiff complained of muscle pain in various areas of her body and facial
swelling. She had a bruise on her forehead and hair loss. Id. However, she “did not present”
with any “neurological abnormalities” indicative of a brain injury. ECF 30-2; ECF 37-1; see
also ECF 30-3 at 62-65. She denied loss of consciousness, severe headaches, vomiting, or
blurred vision. ECF 30-3 at 62; ECF 37-1, ¶ 5.
X-rays were taken that day. Id. at 63. They revealed no abnormalities in plaintiff’s facial
bones or eye sockets. ECF 30-3 at 33; see also ECF 30-2, ¶ 8; ECF 37-1, ¶ 5. Plaintiff was
prescribed non-steroidal anti-inflammatory drugs (“NSAIDs”) and a muscle relaxer, and it was
recommended that she rest and restrict her physical activity. ECF 30-2, ¶ 5; ECF 37-1, ¶ 5.
Contrary to plaintiff’s assertions (ECF 1 at 3), she “did not present with an ‘open
maxillary’ artery or leaking ‘cerebral fluid’ on November 24, 2014 or at any other time.” ECF
30-2, ¶ 5; see ECF 37-1, ¶ 7. Moreover, Dr. Asresahegn has opined that “[t]here was no medical
necessity for emergent hospital treatment or more extensive diagnostic testing.” ECF 30-2, ¶ 5;
see also ECF 37-1, ¶ 6. He avers that plaintiff “did not exhibit any signs of neurological
abnormalities . . . such as a concussion.” ECF 37-1, ¶ 6.
Plaintiff was provided with follow up care on December 1, 2014, by Dr. Asresahegn.
ECF 30-3 at 65-66; ECF 147-148. She complained of occasional headaches, jaw pain when
chewing hard food, mild back pain, and generalized body ache. However, Kamara stated that
her pain was “much better compared with one week ago.” Id. at 65. She also advised that
Naproxen and Flexeril helped manage her pain. Plaintiff denied blurred vision, vision changes,
neck pain or stiffness, or sinus tenderness. She was in mild pain. No abnormalities were noted
in plaintiff’s head or eyes and her neck was supple. Id. at 65-66. Her blood pressure was 114/76.
Plaintiff’s prescription for NSAIDs and muscle relaxers were continued. Plaintiff was
advised to perform stretching exercises and to follow up as needed. Id. at 66
The following day, plaintiff complained, in a request for health services form, that she
had issues with short term memory. Id. at 37. On December 5, 2014, via a request for health
services form, she complained of pressure in her forehead, to her nose, and a headache. Id. at 7.
On December 7, 2014, plaintiff complained, via the request for health services form, of headache
and pain in her ears after her pain medication wore off. Id. at 8.
Plaintiff was seen by Dr. Asresahegn on December 9, 2014, due to plaintiff’s complaints
of occasional forehead pain, which she attributed to the altercation on November 19, 2014. Id. at
5-6. At that time plaintiff also complained of anxiety regarding her legal case. Id. at 5. Plaintiff
denied blurred vision, vision change, and/or neck pain. She was alert and in no pain or distress.
Examination showed no head abnormalities and her pupils were equal in size and reactive to
light. Id. She reported no sinus tenderness, nor did she offer any complaints of memory issues at
that time. Plaintiff was diagnosed with soft tissue injury and advised to exercise and take pain
medications as necessary. Id. at 5-6.
A nurse saw Kamara on December 16, 2014, for an unrelated issue. She did not offer any
complaints of headache, back pain, or memory issues. Id. at 9-10.
Dr. Asresahegn again evaluated plaintiff on January 2, 2015. Id. at 67-68, 149-150.
Plaintiff denied blurred vision or vision changes. Plaintiff offered no complaints of back pain or
memory issues. But, she appeared in mild pain and distress. Her head, neck and eyes were
Plaintiff was diagnosed with a sinus infection, bacterial vaginosis, and was
prescribed an antibiotic and decongestant. Id.
Plaintiff was next evaluated by Dr. Asresahegn on January 26, 2015, for an unrelated
complaint. ECF 30-3 at 12-15.5 At that time she denied blurred vision, vision changes, or neck
pain. Id. at 12. Her head and neck were normal, her pupils were equal in size and reactive, and
she reported no sinus tenderness. No complaints of memory issues, back pain, or headache were
offered. Id. at 12-13.
Plaintiff required treatment on February 26, 2015, indicating her medication had run out.
Id. at 15. She refused a nursing assessment on February 28, 2015. Id. at 16.
Kamara was examined on March 3, 2015, due to complaints of chronic intermittent
headaches and back pain since the November assault. Id. at 70, 152-153. She complained of
In ECF 37-1, ¶ 8, Dr. Asresahegn avers that he saw plaintiff on January 19, 2015. His
citations to the medical record reflect the date of January 26, 2015, not January 19, 2015. The
discrepancy is not material.
flashbacks to her injuries but did not offer any complaints of memory loss. Id. Plaintiff did not
appear in distress and no head, eye, or neurological abnormalities were observed. Her blood
pressure was 115/83. Id. at 70. Given plaintiff’s reports of headaches, the provider noted that
plaintiff may have suffered a mild concussion and prescribed Topamax. Id. at 71. She was
directed to follow up as needed. Id.
On March 10, 2015, plaintiff requested care for a headache and joint and back pain. Id. at
20. She was seen by a nurse on March 14, 2015, and reported a headache at 6 on a 10 point pain
scale. Id. at 17. She did not complain of memory issues. Id. at 17-19. Plaintiff reported that
Naproxen was effective for her headaches and that her anxiety medication made her dizzy. Id. at
17. No abnormalities were observed as to plaintiff’s neck, eyes, or head. Plaintiff’s gait was
normal and she had equal and strong hand grips, which ruled out disc herniation or spinal nerve
damage. Id. at 18; ECF 30-2, ¶ 22. Plaintiff was prescribed Naproxen and advised to contact the
medical providers if her symptoms worsened. ECF 30-3 at 18.
Kamara requested pain medication on April 6, 2015. ECF 30-3 at 24. On April 9, 2015,
she was seen by a nurse due to her complaints of headache. Id. at 21-23. Plaintiff reported that
her headache was dull and achy and that noise and light made it worse. Id. at 21. She did not
appear in acute distress and did not exhibit any neurological abnormalities. Id. at 21-22. Her
neck, gait, and hand grips were normal. Id. at 22. She did not complain of any memory issues or
back pain. Id. at 21-22. She was prescribed Tylenol for two weeks and was instructed to follow
up if her symptoms worsened. Id. at 22.
Plaintiff was next seen by medical staff on May 26, 2015, for an unrelated complaint. At
that time she denied blurred vision or vision changes, neck stiffness, or pain. Id. at 74. She was
in no acute distress. She denied sinus tenderness and her eyes were normal. No complaints of
headache, memory issues, or back pain were offered. Id. at 74-75.
On June 21, 2015, plaintiff again complained of headache and back pain. Id. at 27. She
requested an MRI or CAT scan. Id. On June 28, 2015, she complained of head and back pain. Id.
Dr. Asresahegn evaluated plaintiff on June 30, 2015, due to her complaints of headaches.
Id. at 25-26. Plaintiff stated that the headaches were usually on her left side and lasted a few
hours. Id. at 25. She denied vomiting or photophobia. She stated that she believed she had a
brain aneurysm. Id. She denied neck pain, blurred vision, or vision changes. She appeared to be
in mild pain. Id. Examination demonstrated that plaintiff’s head, eyes, and neck were normal and
she exhibited no neurological abnormalities. Id. at 26. Plaintiff did not complain of memory
issues or back pain. Id. at 25-26. Dr. Asresahegn diagnosed plaintiff as suffering with migraine
headaches and prescribed a NSAID, based on plaintiff’s reported improvement of her symptoms
with the use of NSAIDs. Id. at 26.
On July 14, 2015, plaintiff asked to see Dr. Asresahegn, complaining of head, back, and
neck pain. Id. at 31. She was seen the following day by a nurse for complaints of headaches,
back pain, and a request for a back brace. Id. at 29-30. Plaintiff complained of back pain with a
rating of a 7 to 10 out of 10. Id. at 29. However, she did not appear to be in acute distress and
did not exhibit tenderness on her back. Id. at 29-30. Plaintiff’s hand grip, strength, and straight
leg raise (a test for disc herniation), posture, and gait were all normal. Id.; see also ECF 30-2, ¶
27. Plaintiff asked the nurse to see a doctor for her headache. The nurse referred plaintiff to the
doctor and prescribed Naproxen as requested by plaintiff. Id. at 30.
After plaintiff’s appointment with the nurse, she was taken back to the medical unit due
to complaints that she felt dizzy and had fallen. ECF 30-3 at 77. While crying, Kamara said that
she was upset with her housing unit officers. No injuries were observed. A doctor kept plaintiff
in the infirmary for observation. Id. at 78. She appeared stable. Id. at 79. On July 16, 2015,
while still housed in the infirmary, plaintiff denied any complaints. Id. at 80-81. That same day
she was transferred to another facility. ECF 30-2, ¶ 28.
To be sure, plaintiff suffered “moderate swelling” and “bruising around the eyes.” ECF
30-2 ¶ 10.
Although plaintiff complained of blurred vision on November 19, 2014, and
decreased vision on November 21, 2014, the examination on November 21, 2014, showed her
pupils were equal and reactive with no dilation. According to Dr. Asresahegn, those findings,
along with other aspects of the exam, “ruled out a head injury.” Id. at 4-5.
Further, Dr. Asresahegn opines that plaintiff’s subjective reports of extreme back pain
were at times inconsistent with her physical presentation. ECF 30-2 at 11, ¶ 27. She explained
that plaintiff exhibited no tenderness of her back, her gait was normal, and testing did not reveal
back injuries that “could have caused her reported extreme pain.” Id.
In addition, Dr. Asresahegn opines that plaintiff was provided medically appropriate
treatment in connection with the assault on November 19, 2014. ECF 30-2 at ¶¶ 12, 29. As the
medical record reflects, Dr. Asresahegn and others saw plaintiff repeatedly for follow-up care to
address plaintiff’s subjective complaints. Id. Plaintiff did not present with any neurological
abnormalities. Id. According to Dr. Asresahegn, blurred vision can be caused by a variety of
issues and, if plaintiff’s blurred vision were caused by significant head trauma, she would have
exhibited other signs of trauma, such as loss of consciousness, a severe headache, vomiting, or
noticeably decreased mental status. Id. at 4, ¶ 8. Dr. Asresahegn also offers that a head injury
may cause internal bleeding, resulting in dilation of the eyes or unequal pupil size. Id. ¶ 10.
According to Dr. Asresahegn, transportation to a hospital or referral for an MRI or CAT
scan were not indicated. Id. ¶ 12. Even if plaintiff had suffered a concussion, Dr. Asresahegn
maintains that the course of treatment would have consisted of observation, rest, and pain
medication, i.e., the same course of treatment as plaintiff received. Id. Plaintiff did not present
with a need for further treatment. Id.
In sum, and of import here, Dr. Asresahegn avers: “Based upon my review of the
medical records . . . it is my opinion within a reasonable degree of medical certainty, that the care
provided to [plaintiff] for her soft tissue head injury and other post-altercation injuries met or
exceeded the standard of care . . . .” Id. ¶ 6.
Dr. Ijeh avers in his Declaration that he treated plaintiff for depression, which was related
to her incarceration and not exacerbated by the attack on November 19, 2014. ECF 30-4, ¶ 6.
According to Dr. Ijeh, plaintiff exhibited no cognitive defects suggestive of a neurological injury
at any of her mental health appointments. Id. Plaintiff received continuous mental health care in
order to treat her depression. Id. She was seen regularly by mental health care providers from
July 1, 2014, through May of 2015. Id. ¶¶ 7-27; see also ECF 30-2 at 32, 36, 38-58, 72-73.
Abu Kalokoh avers that he is employed as the Health Services Administrator at PGCDC.
ECF 30-5, ¶ 1. Kalokoh serves in an administrative, budgetary, and operational role, and does
not practice medicine or treat inmates. Id.¶¶ 1, 2. Nor does he dictate a patient’s course of
medical treatment. Id. ¶ 1.
Further, Kalokoh avers that he did not charge plaintiff for
medication, as there is no charge for medications prescribed by a health care provider at the
institution. Id. ¶ 5. According to Kalokoh, charges for sick-call evaluations are charged through
the county jail and he has no discretion as to who is charged or how much is charged. Id.
Kalokoh does not recall receiving a request for copies of medical records from plaintiff.
Had he received such a request, he indicates he would have routed the request to the proper
party. Id. ¶ 6.
Standard of Review
The Medical Defendants' motion is styled as a motion to dismiss under Fed. R. Civ. P.
12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56. ECF 30. A
motion styled in this manner implicates the court’s discretion under Rule 12(d) of the Federal
Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F.
Supp. 2d 431, 436-37 (D. Md. 2011). Ordinarily, a court “is not to consider matters outside the
pleadings or resolve factual disputes when ruling on a motion to dismiss.” Bosiger v. U.S.
Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its
discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court
does so, “the motion must be treated as one for summary judgment under Rule 56,” but “[a]ll
parties must be given a reasonable opportunity to present all the material that is pertinent to the
motion.” Fed. R. Civ. P. 12(d); see Adams Housing, LLC v. The City of Salisbury, Maryland,
___ Fed Appx. ____, 2016 WL 6958439, at * 2 (4th Cir. Nov. 29, 2016) (per curiam).
A court may not convert a motion to dismiss to one for summary judgment sua sponte,
unless it gives notice to the parties that it will do so. See Laughlin v. Metro. Wash. Airports
Auth., 149 F.3d 253, 261 (4th Cir. 1998) (stating that a district court “clearly has an obligation to
notify parties regarding any court-instituted changes” in the posture of a motion, including
conversion under Rule 12(d)); Finley Lines Joint Protective Bd. Unit 200 v. Norfolk So. Corp.,
109 F.3d 993, 997 (4th Cir. 1997) (“[A] Rule 12(b)(6) motion to dismiss supported by
extraneous materials cannot be regarded as one for summary judgment until the district court acts
to convert the motion by indicating that it will not exclude from its consideration of the motion
the supporting extraneous materials.”); see also Adams Housing, LLC, supra, at *2 (“The court
must give notice to ensure that the party is aware that it must ‘come forward with all of [its]
evidence.’”) (citation omitted). However, when the movant expressly captions its motion “in the
alternative” as one for summary judgment, and submits 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; the court “does not have an obligation to notify parties of the obvious.” Laughlin,
149 F.3d at 261.
A district judge 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.” 5 C WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed.
2004, 2011 Supp.). This discretion “should be exercised with great caution and attention to the
parties’ procedural rights.” Id. at 149. In general, courts are guided by whether consideration of
extraneous material “is likely to facilitate the disposition of the action,” and “whether discovery
prior to the utilization of the summary judgment procedure” is necessary. Id. at 165, 167.
Ordinarily, summary judgment is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont De Nemours and Co. v. Kolon Industries,
Inc., 637 F.3d 435, 448-49 (4th Cir. 2012); see Putney v. Likin, 656 Fed. App’x 632, 638 (4th
Cir. 2016); McCray v. Maryland Dep’t of Transportation, 741 F.3d 480, 483 (4th Cir. 2015).
However, “the 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 time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain
Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996)). To raise adequately the issue that discovery is needed, the nonmovant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule
56(f)), explaining why, “for specified reasons, [she] cannot present facts essential to justify [her]
opposition,” without needed discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45
(discussing affidavit requirement of former Rule 56(f)).
“[T]o justify a denial of summary judgment on the grounds that additional discovery is
necessary, the facts identified in a Rule 56 affidavit must be ‘essential to [the] opposition.’”
Scott v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D. Md. 2011) (alteration in original)
(citation omitted). A non-moving party’s Rule 56(d) request for additional discovery is properly
denied “where the additional evidence sought for discovery would not have by itself created a
genuine issue of material fact sufficient to defeat summary judgment.” Strag v. Bd. of Trs.,
Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham, 437 F. Supp.
2d 414, 420 (D. Md. 2006), aff’d, 266 F. App’x. 274 (4th Cir.), cert. denied, 555 U.S. 885
If a non-moving party believes that further discovery is necessary before consideration of
summary judgment, the party fails to file a Rule 56(d) affidavit at his peril, because “‘the failure
to file an affidavit . . . is itself sufficient grounds to reject a claim that the opportunity for
discovery was inadequate.’” Harrods, 302 F.3d at 244 (citations omitted). But, the non-moving
party’s failure to file a Rule 56(d) affidavit cannot obligate a court to issue a summary judgment
ruling that is obviously premature. Although the Fourth Circuit has placed “‘great weight’” on
the Rule 56(d) affidavit, and has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and
the need for additional discovery in a memorandum of law in opposition to a motion for
summary judgment is not an adequate substitute for [an] affidavit,’” the appellate court has “not
always insisted” on a Rule 56(d) affidavit. Id. (internal citations omitted).
According to the Fourth Circuit, failure to file an affidavit may be excused “if the
nonmoving party has adequately informed the district court that the motion is premature and that
more discovery is necessary” and the “nonmoving party’s objections before the district court
‘served as the functional equivalent of an affidavit.’” Harrods, 302 F.3d at 244-45 (internal
citations omitted); see also Putney, 656 Fed. App’x at 638; Nader v. Blair, 549 F.3d 953, 961
(4th Cir. 2008). Moreover, “[t]his is especially true where, as here, the non-moving party is
proceeding pro se.” Putney, 656 Fed. App’x at 638.
Plaintiff and the Correctional Defendants have engaged in discovery. ECF 23; ECF 26;
ECF 43; ECF 45. But, plaintiff seeks additional discovery due to her dissatisfaction with the
responses of the Correctional Defendants to her discovery requests. ECF 43 at 2-3. She also
sought discovery from the Medical Defendants. ECF 34-1. They opposed that request. ECF 34.
Plaintiff did not file an affidavit in compliance with Rule 56(d) as to her request for discovery
from the Medical Defendants. And, she received exhibits to the dispositive motions filed in this
case, including copies of her medical records, affidavits from correctional officers, the tier video
of the incident, and the policy manual for PGCDC.
I recognize that plaintiff is self-represented. Nevertheless, plaintiff has provided no
indication as to what additional information she requires in order to respond to the pending
motions. Plaintiff has not provided the basis for any legitimate need for additional discovery as
to any of the named defendants.6 Nor is there any indication that additional materials would
create a genuine issue of material fact. As such, I am satisfied that it is appropriate to address
both motions as summary judgment motions, because this will facilitate resolution of this case.
Therefore, I turn to the applicable standard of review.
Summary judgment is governed by Fed. R. Civ. P. 56(a). It provides, in part: “The court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” The Supreme Court has
clarified that this does not mean that any factual dispute will defeat the motion. “By its very
terms, this standard provides that the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986) (emphasis in original).
“The party opposing a properly supported motion for summary judgment ‘may not rest
upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts
showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)),
cert. denied, 541 U.S. 1042 (2004). The court should “view the evidence in the light most
favorable to . . . the nonmovant, and draw all inferences in her favor without weighing the
evidence or assessing the witness credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290
F.3d 639, 644-45 (4th Cir. 2002); see FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
The district court’s “function” is not “to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at
As noted, I previously ordered the Correctional Defendants to make the tier video
available to plaintiff. ECF 51.
249. Moreover, the trial court may not make credibility determinations on summary judgment.
Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015);
Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007); Black & Decker Corp.
v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis, 290 F.3d at 644-45. Therefore, in
the face of conflicting evidence, such as competing affidavits, summary judgment is generally
not appropriate, because it is the function of the fact-finder to resolve factual disputes, including
matters of witness credibility.
Nevertheless, to defeat summary judgment, conflicting evidence, if any, must give rise to
a genuine dispute of material fact. See Anderson, 477 U.S. at 247-48. If “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party,” then a dispute of material
fact precludes summary judgment. Id. at 248; see Libertarian Party of Va. v. Judd, 718 F.3d
308, 313 (4th Cir. 2013). On the other hand, summary judgment is appropriate if the evidence
“is so one-sided that one party must prevail as a matter of law.” Id. at 252. And, “the mere
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff.” Id.
Because plaintiff is self-represented, her submissions are liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). But, the court must also abide by the “‘affirmative
obligation of the trial judge to prevent factually unsupported claims and defenses from
proceeding to trial.’” Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting
Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477
U.S. 317, 323–24 (1986)).
A. The Price George’s County Department of Corrections.
Title 42 U.S.C.§ 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen
of the United States or other person with the jurisdiction thereof to the deprivation
of any rights, privileges or immunities secured by the Constitution and laws, shall
be liable to the party injured . . .” (Emphasis supplied).
Conduct amenable to suit under 42 U.S.C. §1983 must be conduct taken by a person. The
Prince George’s County Department of Corrections is not a person amenable to suit under
§ 1983. Therefore, judgment shall be entered in favor of the PGCDC.
The constitutional protections afforded to a pretrial detainee under the Fourteenth
Amendment are coextensive with those provided by the Eighth Amendment. See Bell v. Wolfish,
441 U.S. 520, 535 (1979). “Due process rights of a pretrial detainee are at least as great as the
eighth amendment protections available to the convicted prisoner.” Hill v. Nicodemus, 979 F.2d
987, 991 (4th Cir. 1992) (citing Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988)). The
question is whether the conditions amount to punishment of the pretrial detainee, because due
process proscribes punishment of a detainee before proper adjudication of guilt. Bell v. Wolfish,
441 U.S. at 535.
However, “not every inconvenience that is encountered during pre-trial
detention amounts to ‘punishment’ in the constitutional sense.” Martin, 849 F.2d at 870 (citing
Bell, 441 U.S. at 538-40).
Failure to Protect
Plaintiff alleges that the Correctional Defendants failed to provide adequate supervision
and security to protect her, and as such her right to be free from cruel and unusual punishment
has been violated. The right to be free from cruel and unusual punishment includes the right to
be protected from a substantial risk of serious harm at the hands of other inmates. See Farmer v.
Brennan, 511 U.S. 825 (1994); Makdessi v. Fields, 789 F.3d 126 (4th Cir. 2015); Winfield v.
Bass, 106 F.3d 525, 531 (4th Cir. 1997); Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir. 1990).
A failure-to-protect claim brought by a pretrial detainee constitutes a due process claim
under the Fourteenth Amendment. But, the same standards apply as for an Eighth Amendment
claim brought by a convicted prisoner. See, e.g., Brown v. Harris, 240 F.3d 383, 388 (4th Cir.
2001); Grimes v. Warden, Baltimore City Detention Center, 2012 WL 2575373, at *1 n.2 (D.
Md. June 29, 2012); Eastman v. Warden, Baltimore City Detention Center, 2011 WL 210343, at
*2 n.3 (D. Md. Jan. 21, 2011); accord Smith v. Sangamon County Sheriff’s Dept., 715 F.3d 188,
191 (7th Cir. 2013); Goodman v. Kimbrough, 718 F.3d 1325, 1331 & n.1 (11th Cir. 2013).
“The Eighth Amendment’s prohibition on cruel and unusual punishments imposes certain
basic duties on prison officials.” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (citing
Farmer, 511 U.S. at 832).
Those duties “include maintaining humane conditions of
confinement, including the provision of adequate medical care and . . . ‘reasonable measures to
guarantee the safety of the inmates.’” Id. (citation omitted). To be sure, “not every injury
suffered by a prisoner at the hands of another ‘translates into constitutional liability for prison
officials responsible for the victim’s safety.’” Makdessi, 789 F.3d at 133 (citation omitted). But,
“corrections officers have ‘a duty to protect prisoners from violence at the hands of other
prisoners,’ for ‘[b]eing violently assaulted in prison is simply not part of the penalty that criminal
offenders pay for their offenses against society.’” Raynor, 817 F.3d at 127 (citation omitted)
(alteration in Raynor).
A two-part test that consists of both an objective and a subjective component must be
satisfied in order for a plaintiff to establish liability for failure to protect. See Raynor, 817 F.3d
Objectively, the prisoner “must establish a serious deprivation of his rights in the form of
a serious or significant physical or emotional injury,” or a substantial risk of such injury. Danser
v. Stansberry, 772 F.3d 340, 346–47 (4th Cir. 2014) (internal quotations omitted). The objective
inquiry “requires a court to assess whether society considers the risk that the prisoner complains
of to be so grave that it violates contemporary standards of decency to expose anyone
unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in Helling).
Subjectively, a plaintiff must establish that the prison official involved had “a sufficiently
culpable state of mind” amounting to “deliberate indifference to inmate health or safety.”
Farmer, 511 U.S. at 834. To establish a culpable state of mind, there must be “evidence
suggesting that the prison official had actual knowledge of an excessive risk to the [prisoner’s]
safety.” Danser, 772 F.3d at 347. This may include evidence that prison officials were “‘aware
of facts from which the inference could be drawn that a substantial risk of serious harm exists,’”
and that the inference was drawn. Raynor, 817 at 128 (citing Farmer, 511 U.S. at 837). A
plaintiff may “prove an official’s actual knowledge of a substantial risk ‘in the usual ways,
including inference from circumstantial evidence,’” and “‘a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that the risk was obvious.’” Raynor,
817 F.3d at 128 (citing Farmer, 511 at 837).
Actual knowledge of a substantial risk does not necessarily result in liability. If a prison
official responded reasonably to a risk, he or she “may be found free from liability. . . .” Farmer,
511 U.S. at 844.
Of import here, in a failure-to-protect case, “‘prison guards have no constitutional duty to
intervene in the armed assault of one inmate upon another when intervention would place the
guards in danger of physical harm.’” Raynor, 817 F.3d at 128 (quoting Prosser v. Ross, 70 F.3d
1005, 1008 (8th Cir. 1995)). On the other hand, the failure to take any action “to stop an
ongoing assault on a prisoner can amount to deliberate indifference.” Raynor, 817 F.3d at 128
(citing Winfield v. Bass, 106 F.3d 525, 532 (4th Cir. 1997) (en banc); see also Odom v. S.C.
Dep’t of Corr., 349 F.3d 765, 773 (4th Cir. 2003). If the officer “had a reasonable opportunity to
act and ‘simply refused to do so,’” the officer’s failure to intervene during an assault may give
rise to liability under § 1983. Raynor, 817 F.3d at 128 (citation omitted).
Plaintiff maintains that the Correctional Defendants failed to act to end the attack upon
her. She has submitted affidavits of three inmates, two of whom saw the occurrence. The
affidavits are directly refuted by the affidavits of Baker, Stewart, Ford, and Taylor. However,
the Court may not resolve conflicting affidavits on summary judgment.
Nevertheless, in this case, unlike in Raynor, plaintiff’s contentions are at odds with the
video recording of the incident. And, that recording captured the altercation from five different
cameras with five different angles. See Witt v. West Virginia State Police, Troop 2, 633 F.3d
272, 276 (4th Cir. 2011) (stating that “when a video ‘quite clearly contradicts the version of the
story told by [the plaintiff] ... so that no reasonable jury would believe it, a court should not
adopt [the plaintiff's] version of the facts for purposes of ruling on a motion for summary
judgment .’ ”) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)).
As indicated, the tier video consists of images from six cameras, five of which focus on
the lunch area. The sixth camera captures the area where the ERT entered. The video is
powerful, objective evidence of what occurred.7 The cameras show a spontaneous, brutal, and
seemingly unprovoked and sudden attack by Sellers on plaintiff. The video also reveals that all
four officers on the scene immediately sprang into action when the attack began. One got on the
I incorporate here the factual account that appears on pages 8-9.
radio or phone, presumably calling for help. Two officers approached the assailant as she was
attacking plaintiff, and two officers directed other detainees to leave the area. One of those
officers then joined the two officers in approaching the assailant.
The video makes clear that the Correctional Defendants did not physically intercede to
restrain Sellers. In other words, they did not engage in physical contact with Sellers to halt the
attack upon plaintiff. But, it is also clear that they never just sat back and let the fight proceed.
The officers who approached the assailant were in close proximity to her and seemed to shout
commands that the attacker ignored. The officers appeared agitated and never left the scene. As
noted, they also endeavored to maintain security by directing other detainees in the area to leave.
And, within 90 seconds of the outbreak of violence, six male officers responded to the scene.
The female officers were not required to risk injury to themselves by physically
confronting Sellers. Indeed, if they had tried to intervene, without success, matters might have
become more dangerous. And, it is also salient that the conduct of the officers was consistent
with their duties, as set forth in the Manual. As noted, PGCDC policy directed staff not to put
themselves in harm’s way by intervening physically in a fight between inmates. Rather, the
Manual directs staff to call for the ERT, lock in other detainees, and issue oral commands to stop
the altercation. That is precisely what the Correctional Defendants did.
As indicated, the video tells a version at odds with plaintiff’s account. As the Supreme
Court explained in Scott v. Harris, 550 U.S. at 380, when “opposing parties tell two different
stories, one of which is blatantly contradicted” by video evidence contained in the record, “so
that no reasonable jury could believe it, a court should not adopt that version of the facts . . . .”
To be sure, Scott does not grant a court license to reject outright a party’s account where
“documentary evidence, such as a video,” merely “offers some support for [the other side’s]
version of events.” Witt, 633 F.3d at 276 (emphasis in original); see Sawyer v. Asbury, 537 F.
App’x 283, 291 (4th Cir. 2013). At the same time, “[i]ncontrovertible evidence relied on by the
moving party, such as a relevant videotape whose accuracy is unchallenged, should be credited
by the court,” if the video “so utterly discredits the opposing party’s version that no reasonable
juror could fail to believe the version advanced by the moving party.” Zellner v. Summerlin, 494
F.3d 344, 371 (2d Cir. 2007). That is the situation here.
Plaintiff and her fellow detainees report that the assault lasted for 15 minutes. The Court
does not doubt that for plaintiff the attack seemed to last an eternity. But, the indisputable facts,
as shown by the video, are that from the inception of the attack until the appearance of the ERT
on the tier, less than 90 seconds elapsed. The Correctional Defendants acted reasonably in
responding to the sudden and unprovoked attack on plaintiff. Therefore, Baker, Stewart, Ford,
and Taylor are entitled to summary judgment on this claim.
As to Dr. Ijeh, plaintiff baldly claims that Dr. Ijeh was responsible for Sellers being
housed on a general population tier and therefore responsible for the attack upon her. She claims
that he knew Sellers had previously been housed on segregation status and had attacked other
inmates. See ECF 34 at 5. Ijeh disputes such knowledge. ECF 30-4, ¶ 5. Even if Ijeh were
aware that Sellers had assaulted other inmates, such information is insufficient to establish that
Ijeh was aware Sellers posed a risk to plaintiff. Nor does such information demonstrate that Ijeh
disregarded the risk. Ijeh is entitled to summary judgment.
The Eighth Amendment prohibits “unnecessary and wanton infliction of pain” by virtue
of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173
(1976); see also Estelle v. Gamble, 429 U.S. 97, 102 (1976); Scinto v. Stansberry, 841 F.3d 219,
225 (4th Cir. 2016); King v. Rubenstein, 825 F.3d 206, 218 (4th Cir. 2016). In order to state an
Eighth Amendment claim for denial of medical care, a plaintiff must demonstrate that the actions
of the defendants or their failure to act amounted to deliberate indifference to a serious medical
need. See Estelle, 429 U.S. at 106; Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014); Iko v.
Shreve, 535 F.3d 225, 241 (4th Cir. 2008). The Fourth Circuit has characterized the applicable
standard as an “exacting” one. Lightsey, 775 F.3d at 178.
Deliberate indifference to a serious medical need requires proof that, objectively, the
prisoner plaintiff was suffering from a serious medical need and that, subjectively, the prison
staff were aware of the need for medical attention but failed either to provide it or to ensure that
the needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); King, 825 F.3d
at 219; Cf. Heyer v. Boyd, ____ F.3d ____, No. 15-6826, slip op. at 13-14 (4th Cir. Feb. 23,
2017). Objectively, the medical condition at issue must be serious. See Hudson v. McMillian,
503 U.S. 1, 9 (1992) (there is no expectation that prisoners will be provided with unqualified
access to health care); Scinto, 841 F.3d at 225.
A “‘serious . . . medical need’” is “‘one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention.’” Iko, 535 F.3d at 241 (quoting Henderson v. Sheahan, 196
F.3d 839, 846 (7th Cir. 1999)); see Heyer v. Boyd, supra, slip op. at 14; Scinto, 841 F.3d at 228.
And, in a case involving a claim of deliberate indifference to a serious medical need, the inmate
must show a “significant injury.” Danser, 772 F.3d at 346 n.8.
Proof of an objectively serious medical condition does not end the inquiry. The subjective
component requires a determination as to whether the defendant acted with “a sufficiently
culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 298 (1991); see Farmer, 511 U.S. at 839-
40; Scinto, 841 F.3d at 225. In order “[t]o show an Eighth Amendment violation, it is not enough
that an official should have known of a risk; he or she must have had actual subjective
knowledge of both the inmate’s serious medical condition and the excessive risk posed by the
official’s action or inaction.” Lightsey, 775 F.3d at 178.
“True subjective recklessness requires knowledge both of the general risk, and also that
the conduct is inappropriate in light of that risk.” Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir.
1997); see also Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001). As the
Farmer Court explained, 511 U.S. at 837, reckless disregard occurs when a defendant “knows of
and disregards an excessive risk to inmate health or safety; the [defendant] 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.” Thus, “[a]ctual knowledge or awareness on the part of the
alleged inflicter . . . becomes essential to proof of deliberate indifference ‘because prison
officials who lacked knowledge of a risk cannot be said to have inflicted punishment.’” Brice v.
Va. Beach Corr. Center, 58 F.3d 101, 105 (4th Cir. 1995) (quoting Farmer, 511 U.S. at 844).
Although the deliberate indifference standard “‘entails more than mere negligence . . . it
is satisfied by something less than acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.’” King, 825 F.3d at 219 (quoting Farmer, 511 U.S. at 835); see
Heyer v. Boyd, supra, slip op. at 17. A plaintiff can meet the subjective knowledge requirement
through direct evidence of a prison official’s actual knowledge or through circumstantial
evidence tending to establish such knowledge, including evidence “‘that a prison official knew of
a substantial risk from the very fact that the risk was obvious.’” Makdessi, 789 F.3d at 133
(quoting Farmer, 511 U.S. at 842).
Moreover, if a risk is obvious, a prison official “cannot hide behind an excuse that he was
unaware of a risk, no matter how obvious.” Brice, 58 F.3d at 105. In Scinto, 841 F.3d at 226, the
Fourth Circuit said:
A plaintiff also makes out a prima facie case of deliberate indifference
when he demonstrates “that a substantial risk of [serious harm] was longstanding,
pervasive, well-documented, or expressly noted by prison officials in the past, and
the circumstances suggest that the defendant-official . . . had been exposed to
information concerning the risk and thus must have known about it . . . .” Parrish
ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (first alteration in
original) (internal quotation marks omitted) (quoting Farmer, 511 U.S. at 842).
Similarly, a prison official’s “[f]ailure to respond to an inmate’s known medical
needs raises an inference [of] deliberate indifference to those needs.” Miltier v.
Beorn, 896 F.2d 848, 853 (4th Cir. 1990), overruled in part on other grounds by
Farmer, 511 U.S. at 837.
Even if the requisite subjective knowledge is established, an official may still avoid
liability if he “responded reasonably to the risk, even if the harm was not ultimately averted.”
Farmer, 511 U.S. at 844; see Scinto, 841 F.3d at 226. Reasonableness of the actions taken must
be judged in light of the risk the defendant actually knew at the time. See Brown v. Harris, 240
F. 3d 383, 390 (4th Cir. 2000) (citing Liebe v. Norton, 157 F. 3d 574, 577 (8th Cir. 1998) (focus
must be on precautions actually taken in light of suicide risk, not those that could have been
Notably, because deliberate indifference “is a higher standard for culpability than mere
negligence or even civil recklessness,” it follows that, “as a consequence, many acts or omissions
that would constitute medical malpractice will not rise to the level of deliberate indifference.”
Lightsey, 775 F.3d at 178; see also Scinto, 841 F.3d at 225; Russell v. Sheffer, 528
F.2d 318, 319 (4th Cir. 1975); Donlan v. Smith, 662 F. Supp. 352, 361 (D. Md. 1986). What the
Court said in Grayson v. Peed, 195 F.3d 692, 695- 96 (4th Cir. 1999), resonates here: “Deliberate
indifference is a very high standard – a showing of mere negligence will not meet it . . . [T]he
Constitution is designed to deal with deprivations of rights, not errors in judgments, even though
such errors may have unfortunate consequences . . . To lower this threshold would thrust federal
courts into the daily practices of local police departments.”
With regard to medical care providers, “any negligence or malpractice on the part of . . .
doctors in missing [a] diagnosis does not, by itself, support an inference of deliberate
indifference.” Johnson v. Quinones, 145 F.3d 164, 166 (4th Cir. 1998). Without evidence that a
doctor linked presence of symptoms with a diagnosis of a serious medical condition, the
subjective knowledge required for Eighth Amendment liability is not present. Id. at 169 (actions
inconsistent with an effort to hide a serious medical condition, refutes presence of doctor’s
In essence, the treatment rendered must be so grossly incompetent or inadequate as to
shock the conscience or to be intolerable to fundamental fairness. Miltier v. Beorn, 896 F.2d 848,
851 (4th Cir. 1990) (citation omitted) (overruled in part on other grounds by Farmer, 511 U.S. at
837; aff’d in pertinent part by Sharpe v. S.C. Dep’t of Corr., 621 Fed. Appx. 732 (Mem) (4th Cir.
2015). And, the right to treatment is “limited to that which may be provided upon a reasonable
cost and time basis and the essential test is one of medical necessity and not simply that which
may be considered merely desirable.” Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977)
Thus, inmates do not have a constitutional right to the treatment of their choice. Dean v.
Coughlin, 804 F.2d 207, 215 (2nd Cir. 1986). And, mere disagreements as to the need for or the
appropriate extent of medical treatment do not give rise to a constitutional injury. See Estelle,
429 U.S. at 105-06; Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985).
Here, the record indicates that plaintiff’s requests were considered and her needs were
addressed. The fact that every request for medical tests was not approved does not reflect
deliberate indifference. To the extent some of plaintiff’s complaints have gone unaddressed, “an
inadvertent failure to provide adequate medical care does not amount to deliberate indifference.”
Estelle, 429 U.S. at 105.
Plaintiff’s numerous grievances with the medical decisions regarding what tests and
treatments are necessary in light of the symptoms presented are reflective of her frustration, but
“[d]isagreements between an inmate and a physician over the inmate's proper medical care do
not state a § 1983 claim unless exceptional circumstances are alleged.” Wright v. Collins, 766
F.2d 841, 849(4th Cir.1985) (citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3rd Cir.1970)). There
are no exceptional circumstances alleged in this case.
Plaintiff was seen immediately after the assault ended. Thereafter, she was seen regularly
by medical and mental health staff. She was provided analgesic medication, diagnostic testing,
and counseling. Had plaintiff suffered a concussion as a result of the assault, the treatment she
received was consistent with that diagnosis as well. Plaintiff’s claim is nothing more than a
disagreement with the decision of her medical providers. Her claim that further diagnostic testing
was required and/or recommended is not supported by the record. Therefore, the Medical
Defendants are entitled to summary judgment.
Plaintiff asserts claims against Mary Lou McDonough, Director of the PGDC; Harry L.
Hilton, Head of Security; Adedeji Adewunmi, Zone Officer; and Abu Kalokoh, Health Services
Administrator of PGCDC. It is well established that the doctrine of respondeat superior does not
apply in § 1983 claims. Supervisory officials are liable only for their own wrongdoing or for
supervisory actions where they are aware that their subordinates have engaged in pervasive and
unconstitutional conduct. See Monell v. New York Dep’t of Social Serv., 436 U.S. 658, 691
(1978); Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no respondeat superior liability
under § 1983).
Liability of supervisory officials “is not based on ordinary principles of
respondeat superior, but rather is premised on ‘a recognition that supervisory indifference or
tacit authorization of subordinates' misconduct may be a causative factor in the constitutional
injuries they inflict on those committed to their care.’” Baynard v. Malone, 268 F.3d 228, 235
(4th Cir. 2001) (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984)). In Shaw v. Stroud,
13 F.3d 791, 799 (4th Cir. 1994), cert. denied, 513 U.S. 813 (1994), the Fourth Circuit set forth
three elements that a plaintiff must prove to establish supervisory liability under § 1983:
(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.
See also King, 825 F.3d at 224 (applying the Shaw elements); Armstrong v. City of Greensboro,
___ F. Supp. 3d ___, 2016 WL 3167178, at *11 (M.D.N.C. June 6, 2016) (same); Kitchen v.
Ickes, 116 F. Supp. 3d 613, 629 (D. Md. 2015) (same), aff'd, 644 F. App'x 243 (4th Cir. 2016),
cert. denied, ___ U.S. ___, 2016 WL 5874521 (Dec. 5, 2016).
According to the Shaw Court, to satisfy the first element, a plaintiff must show “(1) the
supervisor's knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a
pervasive and unreasonable risk of constitutional injury to the plaintiff.” 13 F.3d at 799 (citing
Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984)). And, establishing a “pervasive” and
“unreasonable” risk of harm “requires evidence that the conduct is widespread, or at least has
been used on several different occasions and that the conduct engaged in by the subordinate
poses an unreasonable risk of harm of constitutional injury.” Shaw, 13 F.3d at 799. Here, the
record is devoid of any evidence indicating a pervasive or “widespread” problem in diagnosing
and treating assault victims.
Where, as here, a plaintiff points to no action or inaction on the part of supervisory
defendants that resulted in a constitutional injury, the claims against the supervisory personnel
must be dismissed.
For the foregoing reasons defendants’ dispositive motions, treated as motions for
summary judgment, will be GRANTED. Judgment will be ENTERED in favor of defendants
and against plaintiff.
A separate Order follows.
February 24, 2017
Ellen L. Hollander
United States District Judge
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