Dirton v. Liller et al
MEMORANDUM. Signed by Judge Richard D. Bennett on 3/7/2017. (c/m 3/8/17)(kr2, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BRUCE A. LILLER, et al.
Civil Action No. RDB-16-1477
civil rights complaint filed by Plaintiff Derrick Dirton concerns
allegations that Dirton has been denied needed psychological services and medical care and that
he has been subjected to excessive uses of force by unnamed correctional officers at North
Branch Correctional Institution (NBCI) where he is incarcerated. ECF I and 8. Defendants filed
a Motion to Dismiss or for Summary Judgmentl in response to the complaint.
ECF 26. Dirton
was advised of his right to file an Opposition Response and of the consequences of failing to do
so, but he has filed nothing further in this case.
For the reasons that follow,
Defendants' motion shall be construed as a Motion to Dismiss and shall be granted.
Dirton alleges that he suffers from severe mental health issues as well as a seizure
disorder which causes him to suffer grand mal seizures, facial weakness, and right-sided motor
ECF 1 at p. 2.
He claims his mental health issues cause him to experience
"psychotic misbehavior episodes" and, for that reason, he was transferred to Patuxent Institution
Also pending is Defendants' Motion for Extension of Time (ECF 30) which shall be granted.
Dinan filed a supplemental complaint (ECF 8) which does not appear to add any new claims to those raised
in the original complaint. Thus, only the original complaint and the amended complaint (ECF 14) will be referenced
in 2014 for purposes of receiving treatment.
ld. He states that On December 21, 2015, he was
"abrubtly and without warning or reason" transferred
to NBCI from Patuxent despite his
continued need for the services offered at Patuxent. ld.
Dirton claims that on January 8, 2016,
he was told by Psychology Associate Lauren A. Beitzel and Sgt. Janet Puffenbarger that he was
transferred back to NBCI because of behavioral problems at Patuxent. ld.
Dirton asserts that since his transfer to NBCI he has relapsed and has been subjected to "a
perpetual pattern of abuse" and retaliatory misconduct.
ld. He claims the abuse and retaliation
includes withholding of his meals, stolen property, refusal of medication, falsified charges of rule
and denial of psychiatric
Dirton asserts he has filed "several
complaints and letters" regarding these allegations but "several of his complaints" were stolen,
never returned, or dismissed. ld.
On January I 1,2016, Dirton filed a "complaint" after seeking help from Bruce Liller and
ECF I at p. 3.
On January 20, 2016, Dirton states he filed "another
appeal" regarding his administrative remedy procedure complaint ("ARP")
ld. He claims he never received a response to the appeal. The ARP concerns
Dirton's transfer from Patuxent to NBCI and alleges that Dirton is being denied access to
psychiatric services in violation of the Americans with Disabilities Act and the Rehabilitation
Act. ECF I -2 at pp. 19 - 2 I. The ARP was dismissed for procedural reasons with the notation
that case management decisions are not subject to the ARP process. ld. at p. 19. In the appeal to
Dirton asserted that the procedural dismissal was erroneous because case
management has nothing to do with delivery of psychiatric services.
ECF 1-2 at pp. 22- 23.
Dirton never received a response from the Commissioner of Correction. ECF I at p. 3.
Dinon's claims were prepared for him by two other inmates, Walter Hall and John Wagner. ECF I at p. 3.
Dirton claims he filed complaints
who is the "clinical
director." ECF I at p. 3. Dirton claims he has been subjected to biased and prejudicial treatment
at NBCI due to the multiple grievances as well as civil litigation he has filed.
references ARP NBCI-1391-14 with regard to Holwager.
ECF 1-2 at pp. 8 - I I. In that ARP,
Dirton claims he is on a hunger strike and has not been seen by either Holwager or Social
Dirton stated that he had "been going threw (sic) mental health things"
during his hunger strike, but was not provided with mental health services.
ld. at p. 9. He
further claimed that Holwager and Wilson allowed custody staff "to control inmates" and that he
had a mental break down due to the oppression he was subjected to. ld. Dirton stated in the
ARP that Holwager and Wilson refuse to report abuse by officers and that they are unfit to be
mental health workers. ld. at p. 10. The ARP was dismissed as frivolous.
ld. at p. 8. It was
noted that while Dirton claimed he needed to be transferred to a qualified mental health facility,
he was advised he would not be transferred
unless case management
Dirton asserts that he has attempted to receive proper psychological and medical care
ECF 1 at p. 3.
A letter dated December 17, 2013, addressed to "Psychology
Department Laura Booth" asserts that Dirton should be on medication for attention deficit
disorder ("ADD") and states he also suffers from bipolar disorder, post-traumatic stress disorder
("PTSD"), and schizophrenia.
ECF 1-2 at p. 1. The only claim raised in the one-page letter is
that Dirton should be taking adderol for ADD, the remainder of the letter simply states what each
disorder involves. ld.
Dirton claims, without describing specific instances, that he has been "beaten, mistreated,
and falsely charged/convicted
to punitive segregation out of malice retaliation."
ECF 1 at p. 3.
He further states that Defendant Bishop "has adamantly refused to address his subordinates"
including both security and psychology staff and claims he has been subjected to electric shock
twenty times and that he has been maced. [d. Dirton adds that he has suffered multiple assaults
and his family has made both the Commissioner of Correction and the Warden of NBC I aware of
the "misfeasance of both psyche (sic) and custody staff' but the Commissioner and Warden have
failed to take action to correct it.
[d. at p. 4.
Dirton further claims that the Governor of
Maryland and his staff as well as the director of Patuxent and the Director of Treatment Services
were also informed of the alleged abuse he has suffered. [d.
Dirton alleges that Captain Jason Harbaugh visited him while he was confined at Western
Correctional Institution ("WCI") during a hunger strike he chose to engage in. ECF I at p. 4. He
claims that Harbaugh harassed him and "offered innuendo" which harmed him psychologically
because Harbaugh "participated in the death of prisoner Ifeanyi A. Iko." [d.
Dirton alleges that the hunger strike he began on January 6, 2016, was in response to
being denied his medication and mental health treatment.
He claims the objective of the hunger
strike was to obtain the treatment he needed, but instead he was subjected to further physical and
psychological abuse leading to a suicide attempt. ECF I at p. 4.
Dirton asserts he "has the mental capacity of a child" because of his brain injury and
multiple diagnoses of mental illness. He asserts that his diminished abilities should excuse him
from exhausting administrative remedies with regard to his claims, especially in light of the
manner in which his claims are continuously dismissed. ECF I at pp. 4 - 5.
In an "Amended Complaint," Dirton asserts that correctional staff are retaliating against
him for this lawsuit, but does not provide a narrative explaining how the officers are engaging in
ECF 14. The Amended Complaint is supported by a Declaration under Oath from
another inmate, Michael Jones.
ECF 14-1. Jones avers that April 28, 2016, Dirton provided
legal mail, along with paperwork authorizing expenditure of funds in his account to cover the
cost of certified mail, to Sgt. Charles Bielanskic.
[d. at p. I.
The following day, Dirton's mail
was returned to him with a notation that Dirton was sending it out as an indigent inmate when in
fact Dirton had provided a means to pay for the fees.
[d. at p. 2.
The mail was given to
Bielanske again on May 6, 2016, and Dirton received the expenditure receipt back approximately
21 days later indicating his mail had been sent out as requested. [d. Jones further avers that he
assists Dirton when he can because of his "men-tal incompetency."
[d. at p. 3.
Standard of Review
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the
sufficiency of the Plaintiff's complaint. See Edwards v. Goldsboro, 178 F.3d 231, 243 (4th Cir.
1999). The Supreme Court articulated the proper framework for analysis:
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain
statement of the claim showing that the pleader is entitled to relief," in order to
"give the defendant fair notice of what the ... claim is and the grounds upon
which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (abrogated on other
grounds). While a complaint attacked by a Rule 12(b)( 6) motion to dismiss
does not need detailed factual allegations, ibid.; Sanjuan v. American Board of
Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994), a plaintiff's
obligation to provide the "grounds" of his "entitle[ment] to relief' requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286 (1986)
(on a motion to dismiss, courts "are not bound to accept as true a legal
conclusion couched as a factual allegation").
Factual allegations must be
enough to raise a right to relief above the speculative level, see 5 C. Wright &
A. Miller, Federal Practice and Procedure ~ 1216, pp. 235-236 (3d ed. 2004)
(hereinafter Wright & Miller) ("[T]he pleading must contain something more.
Ordinarily, the legal effect of filing an Amended Complaint is to supersede the original complaint and
abandon those claims not raised in the amended complaint. See Fed. R. ofCiv. Proc. 15. The pleading docketed as
an Amended Complaint, however, is not labeled as such and is clearly an attempt to simply add the claim asserted to
those already raised in the original complaint. Thus, the claim raised in the Amended Complaint shall be considered
as a claim in addition to those raised in prior pleadings.
.. than ... a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action"), on the assumption that all the allegations in the
complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 508, n.1 (2002); Neitzke v. Williams, 490 U.S. 319,
327(1989) ("Rule 12(b)(6) does not countenance ... dismissals based on a
judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416
U.S. 232, 236 (1974) (a well-pleaded complaint may proceed even if it appears
"that a recovery is very remote and unlikely").
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnotes omitted).
This standard does not require defendant to establish "beyond doubt" that plaintiff can
prove no set of facts in support of his claim which would entitle him to relief. Id. at 561. Once
a claim has been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.
Id. at 562.
The court need not, however, accept
unsupported legal allegations, see Revene v. Charles Cty Comm'rs, 882 F.2d 870, 873 (4th Cir.
1989), legal conclusions couched as factual allegations, see Papasan v. Allain, 478 U.S. 265,286
(1986), or conclusory factual allegations devoid of any reference to actual events, see United
Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
A motion for summary judgment will be granted only if there exists no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of showing that there is
no genuine issue as to any material fact. However, no genuine issue of material fact exists if the
nonmoving party fails to make a sufficient showing on an essential element of his or her case as
to which he or she would have the burden of proof. Celotex, 477 U.S. at 322-23. Therefore, on
those issues on which the nonmoving party has the burden of proof, it is his or her responsibility
to confront the summary judgment motion with an affidavit or other similar evidence showing
that there is a genuine issue for trial.
under Rule 56(c) of the Federal Rules of Civil
Procedure when there is no genuine issue as to any material faet, and the moving party is plainly
entitled to judgment in its favor as a matter of law.
In Anderson v. Liberty Lobby, Inc., the
Supreme Court explained that, in considering a motion for summary judgment, the "judge's
function is not himself to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial." 477 U.S. at 249 (1986).
A dispute about a
material fact is genuine "if the evidenee is sueh that a reasonable jury could return a verdict for
the nonmoving party." Id. at 248. Thus, "the judge must ask himself not whether he thinks the
evidence unmistakably favors one side or the other but whether a fair-minded jury could return a
verdict for the [nonmoving party] on the evidence presented." Id. at 252.
In undertaking this inquiry, a court must view the facts and the reasonable inferenees
drawn therefrom "in a light most favorable to the party opposing the motion." Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)); see also E.E.o.C. v. Navy Fed. Credit Union, 424 F.3d
397,405 (4th Cir. 2005). The mere existence of a "scintilla" of evidence in support of the nonmoving party's case is not sufficient to preclude an order granting summary judgment.
Anderson, 477 U.S. at 252.
This court has previously held that a "party eannot create a genuine dispute of material
fact through mere speculation or compilation of inferences."
373, 375 (D. Md. 2001) (citation omitted).
Shin v. Shalala, 166 F. Supp. 2d
Indeed, this court has an affirmative obligation to
prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999
F.2d 774, 778-79 (4th Cir. 1993) (quoting Felly v. Graves-Humpreys Co., 818 F.2d 1126,1128
(4th Cir. 1987)).
The Defendants named in the Complaint, Bruce Liller, Laura Booth-Moulden, Warden
Frank Bishop, and Dr. James K. Holwager, assert the claims against them are subject to
dismissal for failure to state a claim upon which relief may be granted. ECF 36-1 at p. 5. This
First, the Complaint explicitly sues Liller, Holwager, and Booth-Moulden in their official
Under Eleventh Amendment jurisprudence,
"a suit against a state official in his or
her official capacity is not a suit against the official but rather is a suit against the official's
office. As such, it is no different from a suit against the State itself."
Will v. Michigan Dept. of
State Police, 491 U.S. 58, 71 (1989). Therefore, official capacity claims are subject to sovereign
immunity under the Eleventh Amendment.
Kentucky v. Graham, 473 U.S. 159, 167 (1985);
accord Hafer v. Melo, 502 U.S. 21, 25 (1991). As the Supreme Court explained in Graham, 473
U.S. at 165: "Personal-capacity suits seek to impose personal liability upon a government official for
actions he takes under color of state law. Official-capacity suits, in contrast, 'generally represent
only another way of pleading an action against an entity of which an officer is an agent.'" (quoting
Monell v. N. yc. Dept. afSoc. Servs., 436 U.S. 658, 690, n. 55 (1978)) (citations omitted); see also,
e.g., Huggins v. Prince George's Cnty., 683 F.3d 525, 532 (4th Cir. 2012) (treating suit against
individuals in official capacity as suit against county). Therefore, states and their officers, sued in
their official capacities, are not "persons" subject to suit for money damages under 42 U.S.c.
Will, 491 U.S. at 71.
Even if the claims against Liller, Booth-Moulden,
and Holwager were considered as
personal capacity claims, the claims are still subject to dismissal.
The claims are generalized
ones that do not give rise to a suspicion that these Defendants deliberately denied Dirton mental
health care that was necessary to treat a serious mental illness. The Eighth Amendment prohibits
"unnecessary and wanton infliction of pain" by virtue of its guarantee against cruel and unusual
Gregg v. Georgia, 428 U.S. 153, 173 (1976).
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 v. Gamble, 429 U.S. 97, 106 (1976). "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
Grayson v. Peed, 195 F.3d 692, 695- 96 (4th Cir. 1999). There is no underlying
between the right to medical care for physical ills and its psychological
Bowring v. Goodwin, 551 F.2d 44, 47 (4th Cir. 1977). A prisoner is
entitled to such treatment if a "(p]hysician or other health care provider, exercising ordinary skill
and care at the time of the observation, concludes with reasonable certainty (I) that the prisoner's
symptoms evidence a serious disease or injury; (2) that such disease or injury is curable or may
be substantially alleviated; and (3) that the potential for harm to the prisoner by reason of delay
or the denial of care would be substantial." Id.
Dirton's 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."
Id. at 47.48. Construing the claims raised in a light most
favorable to Dirton, the complaint fails to allege anything more than Dirton's disagreement with
his removal from the programs at Patuxent and his dissatisfaction with the services provided at
His only "proof' of deleterious effect on his mental health is his choice to engage in a
hunger strike which he admits effected his mental status.
His choice to engage in sueh self-
injurious behavior is not a basis for finding these Defendants liable for an Eighth Amendment
claim of deliberate indifference to a serious mental health need.
With respect to Warden Bishop, the claim against him appears to be based on Dirton's
conclusory allegation that he knew about his claims against various staff members but failed to
do anything about it. Such a claim is one that relies upon the doctrine of respondeat superior. It
is well established that the doctrine of respondeat superior does not apply in
1983 claims. See
Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no respondeat superior liability under
Liability of supervisory officials "is not based on ordinary principles of respondeat
but rather is premised
on 'a recognition
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 Siakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984».
must be supported
that: (I) 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. See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). 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 supervisory personnel must be dismissed.
Dirton's claims of retaliation against other unserved Defendants also fail and must be
In order to prevail on a claim of retaliation, Plaintiff "must allege either that the
retaliatory act was taken in response to the exercise of a constitutionally protected right or that
the act itself violated such a right."
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994).
complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the
Gill v. Mooney. 824 F.2d 192, 194 (2nd Cir. 1987) (quoting Flaherty v.
Coughlin, 713 F.2d 10, 13 (2d Cir. 1983»; Pierce v. King, 918 F. Supp. 932,945
1996) (judgment vacated on other grounds, 525 U.S. 802 (1998) (conclusory allegations of
retaliation insufficient to state claim). Dirton's claims of retaliation are conclusory and without
Dismissal of ARP complaints and isolated delays in processing outgoing legal mail are
simply not enough alone to establish a claim of retaliation. Dirton fails to include any allegation
that connects the adverse actions, to the extent they can be considered adverse, to an attempt to
retaliate against him for a constitutionally protected activity.
With respect to the alleged false
disciplinary charges, Dirton includes no specific facts making it impossible for these Defendants
to even address the claim. "In the prison context, we treat such claims with skepticism because
'[ e 1very act of discipline by prison officials is by definition 'retaliatory'
responds directly to prisoner misconduct.'"
in the sense that it
Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir.
1996) (quoting Adams v. Rice, 40 F.3d 72,74 (4th Cir. 1994»).
The Complaint must be dismissed.
Where, as here, a prisoner complaint is dismissed for
failure to state a claim upon which relief may be granted, a "strike" is issued under 28 U.S.c.
In addition, Dirton is reminded that under 28 U.S.c.
he will not be granted
informa pauperis status if he has "on 3 or more prior occasions, while incarcerated or detained
in any facility, brought an action or appeal in a court of the United States that was dismissed on
the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical injury."
Complaint shall be dismissed by separate Order which follows.
'RiCHARD D. BENNETT
UNITED STATES DISTRICT JUDGE
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