Washington v. Rounds et al
MEMORANDUM OPINION AND ORDER denying without prejudice 66 Motion of plaintiff for a Temporary Restraining Order, Preliminary Injunction, and Sanctions, treated as a motion for a preliminary injunction. Signed by Judge Paul W. Grimm on 11/27/2017. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Case No.: PWG-16-320
W.D. ROUNDS, et al.,
MEMORANDUM OPINION AND ORDER
Plaintiff Martin Washington is an inmate incarcerated at the North Branch Correctional
Institution (“NBCI”) in Maryland. Am. Compl. ¶ 13, ECF No. 46. Washington alleges that on
multiple occasions he was physically harmed by the corrections officers at NBCI. Id. ¶¶ 21, 37,
42. Based on this alleged conduct, Washington brought a civil action against the officers under
42 U.S.C. § 1983.
Compl., ECF No. 1.
Now, during the course of his § 1983 action,
Washington moves for a temporary restraining order, preliminary injunction, and an order to
show cause as to why the officers should not be sanctioned for spoliation of evidence. Pl.’s
Mot., ECF No. 66.1 A hearing was held on November 21, 2017, during which I heard argument
from counsel. Washington’s motion, treated as a motion for a preliminary injunction, is denied
without prejudice because he has not shown that he is likely to succeed on the merits. See
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). But because Washington has
raised serious allegations that Defendants (or their supervisors) may have committed spoliation
The parties fully briefed the motion. ECF Nos. 66-3, 67, 73.
of evidence, I am ordering that discovery be taken under the supervision of a United States
Magistrate Judge to determine whether there has been a failure to preserve relevant evidence,
and, if so, whether sanctions under Fed. R. Civ. P. 37(e) are warranted.
The purpose of a preliminary injunction is to “protect the status quo and to prevent
irreparable harm during the pendency of a lawsuit, ultimately to preserve the court’s ability to
render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litig., 333 F.3d
517, 525 (4th Cir. 2003). A preliminary injunction is distinguished from a temporary restraining
order only by the difference in notice to the nonmoving party and by the duration of the
injunction. U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n.1 (4th Cir.
2006) (comparing Fed. R. Civ. P. 65(a) with Fed. R. Civ. P. 65(b)).2 As a preliminary injunction
is “an extraordinary remedy . . . [it] may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
To obtain a preliminary injunction, the plaintiff must “establish that  he is likely to
succeed on the merits,  he is likely to suffer irreparable harm in the absence of preliminary
relief,  the balance of equities tips in his favor, and  an injunction is in the public interest.”
Id. at 20; see Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). “A
preliminary injunction cannot be issued unless all four of these elements are met, and
‘“[p]laintiff bears the burden of establishing that each of these factors supports granting the
injunction.”’” Williams v. JP Morgan Chase Bank, No. RDB-16-00312, 2016 WL 509426, at *3
(D. Md. Feb. 4, 2016) (slip op.) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952
The Defendants were provided notice and responded to the motion. Therefore, I will construe
Washington’s motion as a motion for a preliminary injunction. See Fed. R. Civ. P. 65(a).
F.2d 802, 812 (4th Cir. 1991) (citation omitted)); see Real Truth About Obama v. Fed. Election
Comm’n, 575 F.3d 342, 347 (4th Cir. 2009) (holding that each element must be satisfied as
articulated). “[T]he burden placed upon Plaintiffs to state a claim for a preliminary injunction is
high.” EndoSurg Med., Inc. v. EndoMaster Med., Inc., 71 F. Supp. 3d 525, 538 (D. Md. 2014);
see Fowler v. Wells Fargo Home Mortg., Inc., No. GJH-15-1084, 2015 WL 2342377, at *2 (D.
Md. May 13, 2015) (same).
To meet the first requirement, the plaintiff must “clearly demonstrate that he will likely
succeed on the merits,” rather than present a mere “grave or serious question for litigation.” Real
Truth, 575 F.3d at 346–47 (emphasis from the original). Only “providing sufficient factual
allegations to meet the [Fed. R. Civ. P.] 12(b)(6) standard of Twombly and Iqbal” does not meet
the rigorous standard required under the Winter and Real Truth decisions. Allstate Ins. Co. v.
Warns, No. CCB-11-1846, 2012 WL 681792, at *14 (D. Md. 2012). In the prison context, courts
should grant preliminary injunctive relief respecting the management of correctional institutions
only under exceptional and compelling circumstances. See Taylor v. Freeman, 34 F.3d 266, 269
(4th Cir. 1994). A plaintiff must show that the irreparable harm he faces in the absence of relief
is “neither remote nor speculative, but actual and imminent.” Direx Israel, Ltd. v. Breakthrough
Medical Group, 952 F.2d 802, 812 (4th Cir. 1991) (citation omitted).
Here, Washington alleges in his Amended Complaint that Officer W.D. Rounds, Jr.
deliberately closed a metal food slot on his hand, fracturing it, and that he was sprayed with
mace as well as beaten by the Defendants, stripped naked and had his head rammed into the wall
of the showers, for which he did not receive prompt medical attention for the injuries he suffered.
Am. Compl. ¶¶ 14–58. Washington contends that, since initiating this case, he has been the
victim of new acts of violence, the purpose of which are to intimidate him. Pl.’s Mem. 2. He
also asserts that Officer Joshua Tart, a non-party, punched him in the face while Washington was
handcuffed as retaliation “for filing a lawsuit on my buddys [sic].” Id. (edits in original).
Washington also asserts that Officers Warren Mallow and Shawn Murray threatened him after
the initiation of his suit. Id. at 2–3. Washington has submitted an affidavit attesting to these
events, ECF No. 66-4, as well as an affidavit by Keith Edmonds who states that he witnessed
Officer Murray threatening Washington, ECF No. 66-5. Lastly, Washington contends that he
has submitted three Inmate Request Forms to the Security Chief seeking to preserve surveillance
video that could corroborate his claims, and to the Warden informing him of the retaliatory acts
taken against him that have been ignored. Pl.’s Mem. 2. Aside from the two affidavits, the only
evidence indicating the alleged actions occurred are three Inmate Requests Forms (to the
Security Chief and Warden), ECF No. 66-6, which Washington claims to have completed and
filed with NBCI, but which have not been acknowledge as received.
Defendants argue that Washington has not exhausted his administrative remedies and that
the requested relief is unavailable because it requires a non-party to act. Defs.’s Opp’n. In
support of their opposition, Defendants have submitted various affidavits that contradict
ECF Nos. 67-3–67-8.
Defendants point to three affidavits that
demonstrate that they have no record of Washington submitting any complaints regarding the
alleged incidents. See White Aff. ¶¶ 5–7, ECF No. 67-8; Bohrer Aff. ¶ 5, ECF No. 67-6;
Armstrong Aff. ¶ 4, ECF No. 67-7. Defendants insist that the only complaint NBCI received
from Washington during July and August 2017 is that he was denied medications and dinner.
See White Aff. ¶ 7; Armstrong Aff. ¶ 4. In reply, Washington argues that a July 21, 2017 video
recording, which is not part of the record before me and allegedly depicts Officer Rounds
punching him, was destroyed and that he was impeded from administratively exhausting his
claims, and that those circumstances sufficiently demonstrate that he should be afforded relief in
the form of a preliminary injunction. Pl.’s Reply 1–7. Washington’s allegations, supported by
his copies of the Inmate Request Forms that he claims he submitted to NBCI staff, form the basis
for his argument that his efforts to administratively exhaust his claims have been impeded, and
that evidence spoliation is taking place.
However, regardless of whether Washington administratively exhausted his claims, his
motion suffers from a significant deficiency: factual disputes. For example, Officer Tart attests
that on the date he is alleged to have punched Washington, he was not working in Washington’s
housing unit but in a different building at NBCI. Tart Aff. ¶¶ 3–4, ECF No. 67-5. Office
Murray attests that he was not even working on the day he is alleged to have threatened
Washington. Murray Aff. ¶ 2, ECF No. 4.
The preliminary injunction standard is not whether it is plausible for a plaintiff to
succeed, but whether it is likely. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22
(2008); Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011); Real Truth
About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346–47 (4th Cir. 2009). As noted,
significant factual disputes exist as to whether the alleged events occurred. First, it is unclear if
Officer Tart was ever in the housing unit or if Officer Murray was working on the days in
question. These are but two situations where Washington’s allegations are in direct contradiction
of affidavits Defendants have provided.
Like Judge Motz, to whom this case previously was assigned, I cannot conclude on the
disputed facts before me that Washington is likely to succeed on the merits of his claims against
the individual defendants. See Order Den. Mot. for Prelim. Inj., ECF No. 15; Rogers v. Housing
Auth. of Prince George’s Cty., PWG-14-2940, 2015 WL 5287128, at *9 (D. Md. Sept. 8, 2015);
Torres Advanced Enter. Sols. LLC v. Mid-Atl. Prof’ls Inc., No. PWG-12-3679, 2013 WL
531215, at *3–4 (D. Md. Feb. 8, 2013); Chattery Int’l, Inc. v. JoLida, Inc., No. WDQ-10-2236,
2011 WL 1230822, at *9 (D. Md. 2011). Much of the record is made up of affidavits where a
fact finder could find either version of any of the alleged events credible. Therefore, it is not
possible at this time to find that Washington is likely to succeed on the merits. Because
Washington has not established this critical element, I need not reach the other elements. See
Real Truth, 575 F.3d at 347; Williams, 2016 WL 509426, at *3.
Lastly, as relief, Washington asks me to—and argues that I may—direct the State and
NBCI to take various actions (e.g., transfer Washington, prohibit Defendants from supervising
him during the course of the litigation), despite the fact that neither the State nor NBCI are
parties to this litigation. Washington points to one case from outside the Fourth Circuit, Rivera
v. Dyett, No. 88 CIV. 4707 (PKL), 1992 WL 233882 (S.D.N.Y. 1992), which provides at most
persuasive authority. However, inmates have no liberty interest in placement in a particular
prison, and prison officials have broad discretion to classify inmates and assign them to
appropriate prison housing. See 18 U.S.C. § 3621(b); Cochran v. Morris, 73 F.3d 1310, 1318
(4th Cir. 1996) (citing Meachum v. Fano, 427 U.S. 215, 224 (1976)). Additionally, courts
should exercise great caution before interfering with the day-to-day administration of a prison.
Bell v. Wolfish, 441 U.S. 520, 540 n.23 (1979) (explaining that day-to-day administrative
decisions “are peculiarly within the province and professional expertise of corrections officials,
and, in the absence of substantial evidence in the record to indicate that the officials have
exaggerated their response to these considerations, courts should ordinarily defer to their expert
judgment in such matters.”) (quoting Pell v. Procunier, 417 U.S. 817, 824 (1974)).
Consequently, even if Washington satisfied the elements for preliminary injunctive relief, it is
unlikely that the relief he requests is available against the State of Maryland or NBCI.
Therefore, at this time, I must deny Plaintiff’s Motion for a Preliminary Injunction. See
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); see Dewhurst v. Century
Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). I do so, however, without prejudice. In the
event Washington demonstrates the conduct described is in fact ongoing and shows he is likely
to succeed on the merits, he can renew his request for injunctive relief at that time.
But the fact that Washington has not met the standard for a preliminary injunction does
not mean that he has not raised serious issues about whether Defendants (or others not yet
defendants) 3 have been preventing his Inmate Request Forms and other administrative relief
requests from being processed as required, or have been interfered with.
concerning, is his allegation that Defendants or others at NBCI who are not currently defendants
have engaged in spoliation of evidence to prevent him from having access to surveillance videos
The record before me shows that, at a minimum, William Bohrer, Chief of Security at NBCI,
John White, Correctional Case Management Specialist II, and Wendy Armstrong, Secretary for
the Assistant Warden (and through her, the Assistant Warden and Warden at NBCI) are aware of
Washington’s allegations of retaliation, interference with his efforts to exhaust administrative
remedies, and spoliation of evidence. See Bohrer Aff.; Armstrong Aff.; White Aff. They are
not, at present, parties and it is generally true that supervisory correctional officials may not be
sued in their official capacity under § 1983 (except for injunctive relief) because that is
tantamount to a suit against the state itself, and is barred by Eleventh Amendment immunity.
Cottman v. Maryland, No. RDB-16-3306, 2017 WL 3727455, at *5–6 (D. Md. Aug. 30, 2017);
McIntosh v. Div. of Corr., No. PWG-16-1320, 2017 WL 3412081, at *4 (quoting Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989)). Nonetheless, assuming a Fed. R. Civ. P. 11 basis
exists for suing such supervisory officials in their individual capacities, or official capacities
seeking only injunctive relief, there may be a basis for amending the Complaint to do so. See
Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001) (“Supervisory liability under 42 U.S.C.
§ 1983 must be supported with evidence: ‘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) the supervisor's response to the
knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the
alleged offensive practices; and 3) there was an affirmative causal link between the supervisor's
inaction and the particular constitutional injury suffered by the plaintiff.’”) (quoting Slakan v.
Porter, 737 F.2d 368, 372 (4th Cir. 1984)); Watts v. Green, No. DKC-13-3716, 2015 WL
518587, at *4 (D. Md. Feb. 5, 2015) (same).
that could corroborate his version of events. When inmates bring civil suits they are usually met
by affidavits from correctional officers allegedly involved denying the claims—creating a fact
dispute that can make it difficult, or impossible, for the inmate to obtain preliminary injunctive
relief. The record before me shows that there is at least some evidence to support Washington’s
claims of interference with his efforts to seek administrative relief, see Inmate Request Forms,
and spoliation of evidence, see id. at 3 (requesting NBCI Chief of Security preserve the video
surveillance footage that could substantiate his claims). And some of the affidavits submitted by
Defendants, see e.g., Bohrer Affidavit, raise more questions than they answer.
For this reason I am ordering that discovery be taken regarding (1) Plaintiff’s Inmate
Request Forms and why they appear to have not been processed once filed; and (2) whether
spoliation was committed by Defendants or their supervisors with respect to surveillance video.
With respect to the latter issue, the appropriate authority to govern this dispute is not the court’s
inherent authority, as Washington argues, but Fed. R. Civ. P. 37(e). AS I mentioned during the
hearing, the duty to preserve evidence relevant to Plaintiff’s claims (including videotape footage
of his interactions with correctional officers) clearly has been triggered.
To insure that this discovery is accomplished expeditiously and with the least amount of
burden and expense, I am assigning a United States Magistrate Judge to supervise and preside
over this discovery. With the assistance of the Magistrate Judge, the parties shall meet (in
person) and propose a discovery plan to address these issues, to be approved (then supervised) by
the Magistrate Judge. They also will, with the assistance of the Magistrate Judge, prepare a
preservation order for my approval to insure that relevant video surveillance is not recorded over,
lost, or destroyed. Finally, counsel for Defendants are reminded that they have an ethical duty to
advise their clients (and their supervisors) regarding their duty to preserve evidence relevant to
this lawsuit and the consequences for failing to do so. In this regard, counsel would be prudent
to insure that the Security Chief and Warden, who are not at this time parties to this case,
exercise appropriate oversight to insure that their subordinates do not destroy or misplace
relevant evidence or interfere with the processing of Plaintiff’s Inmate Request Forms and
requests for administrative relief.
Accordingly, it is, this 27th day of November, 2017, for the reasons stated in this
Memorandum Opinion and Order, it is hereby ORDERED that
1. Plaintiff’s Motion for a Temporary Restraining Order, Preliminary Injunction, and
Sanctions, treated as a motion for a preliminary injunction, ECF No. 66, IS DENIED
without prejudice; and
2. I will refer this case to a United States Magistrate Judge to supervise discovery into
the two areas discussed above.
Paul W. Grimm
United States District Judge
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