Walker et al v. Maryland et al

Filing 124

AMENDED MEMORANDUM AND ORDER granting 94 Defendants' Motion to Dismiss Or, In the Alternative, Motion for Summary Judgment; denying 93 Defendant Reginald Heaveners Motion to Dismiss Plaintiffs Amended Complaint; dismissing all claims again st Frank B. Bishop, Jr., George Sneathen, William May, David Stevey, Drew Cook, and three John Doe Correctional Officers (Officer #1, The Chief Psychologist; Officer #2, the Chief of Security; and Officer #3, the Housing Unit Manager); all claims remain pending against Defendant ReginaldHeavener; directing plaintiffs to arrange a case planning conference tobe held with the remaining parties and the Court by 5/23/2018. Signed by Judge Marvin J. Garbis on 4/23/2018. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VERONICA WALKER, et al.
Plaintiffs
vs.

Defendants
*

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* CIVIL ACTION NO. MJG-16-3136

FRANK B. BISHOP, JR., et al.

*

*

*

*
*

*
*
*
*
AMENDED MEMORANDUM AND ORDER

*

*

The Court has before it Defendants’ Motion to Dismiss Or,
In the Alternative, Motion for Summary Judgment [ECF No. 94],
Defendant Reginald Heavener’s Motion to Dismiss Plaintiffs’
Amended Complaint [ECF No. 93], and the materials submitted
relating thereto.

The Court has held a hearing and has had the

benefit of arguments of counsel.

I.

BACKGROUND

1

In the original Complaint [ECF No. 1], Plaintiffs asserted
claims against the State of Maryland and eleven Individual
Defendants.2

The Court granted Defendants’ motions to dismiss

Plaintiffs’ Complaint, and dismissed all claims asserted in that
Complaint.

See Memorandum and Order at 25, ECF No. 81

1

The “facts” stated herein are as alleged in the Amended Complaint
and are not necessarily agreed to by Defendants.

2

Including three John Doe defendants.

(“Memorandum and Order”).

Certain claims were dismissed with

prejudice, i.e., negligence, funeral expenses, and all claims
against the State of Maryland.

However, leave was granted for

Plaintiffs to file an Amended Complaint asserting other claims
against the Individual Defendants.

Thereafter, Plaintiffs filed

the Amended Complaint [ECF No. 86].3

By the instant motions,

Defendants seek dismissal of all claims against them, and in the
alternative, summary judgment pursuant to Rule 56.4
The Court finds it premature to proceed on a motion for
summary judgment prior to any discovery and will treat both
motions solely as motions to dismiss.

In doing so, the Court

shall consider only non-conclusory factual allegations in the
Amended Complaint, and not any materials or exhibits presented
that are not included in the Amended Complaint.
This case pertains to the September 13, 2013 killing of
inmate Jason Wallace (“Wallace”) by his cellmate, Darnell
Thompson (“Thompson”), in their cell at Western Correctional
Institution (“WCI”).

Plaintiffs, Wallace’s parents (Veronica

3

Plaintiffs filed an Amended Complaint on October 16, 2017 [ECF
No. 83] in order to meet a Court-ordered deadline, but then requested
and were granted an additional week to file a finalized version. The
Court addresses herein the Amended Complaint filed on October 23, 2017
at ECF No. 86.

4

Defendant Heavener’s separate Motion [ECF No. 93] does not
request summary judgment.

2

Walker5 and Gilbert Wallace), and his surviving minor children,
V.W. and K.W., (collectively, “Plaintiffs”), file the Amended
Complaint [ECF No. 86] asserting claims against the nine
Individual Defendants:

the former Warden Frank B. Bishop, Jr.

(“Bishop”), Captain George Sneathen (“Sneathen”), Correctional
Officer William May (“May”), Correctional Officer Reginald
Heavener (“Heavener”), Correctional Officer David Stevey
(“Stevey”), Correctional Officer Drew Cook (“Cook”), and three
“John Doe” Correctional Officers (collectively, “Defendants”).6
Plaintiffs assert the following claims:

Count #
I
II

III
IV
V
VI

Asserted Claim
Violation of 42 U.S.C.
(Eighth and Fourteenth
Violation of 42 U.S.C.
(Eighth and Fourteenth

§ 1983
Amendments)
§ 1983
Amendments)

Violation of Maryland Declaration
of Rights Articles 24 and 25
Wrongful Death
Survival Action
Gross Negligence

Defendants
Heavener, Cook,
May, Stevey
Bishop, Sneathen,
and the three John
Doe Defendants
All Defendants
All Defendants
All Defendants
All Defendants

5

Individually and as Personal Representative of the Estate of
Jason Wallace.

6

The John Doe Officers are described as the Chief Psychologist,
the Chief of Security, and the Housing Unit Manager. The State of
Maryland, Gary Maynard, and Roderick Sowers are no longer parties to
the case.

3

Essentially, Plaintiffs assert claims based upon the
assignment of Thompson to be Wallace’s cellmate, and the events
of September 13, 2013 resulting in the death of Wallace.

A. Assignment of Thompson and Wallace as Cellmates
On the date of his death, September 13, 2013, Wallace was
incarcerated at WCI in the general population7 and assigned to
Housing Unit #3.

Am. Compl. ¶ 22.

Housing Unit #3 houses

inmates who have been released from disciplinary segregation,
who are ineligible or removed from “high privileged tiers,”
overflow inmates, certain disabled inmates, or inmates deemed
“detrimental to the good order and operation” of WCI.

Id. ¶ 26.

Housing assignments at WCI are made based upon security,
program needs, and “behaviorally oriented factors.”

Id. ¶ 27.

For this purpose, WCI maintains a “case management system” which
stores information about inmates, including who has been
identified as a sexual predator, as a danger to others, and/or
as having certain vulnerabilities.

Id. ¶ 28.

Inmates who are

mentally ill or have special needs may be placed in special
needs housing or another institution (e.g., CMHC-J at Patuxent),
based on decisions made by the Chief Psychologist, the Warden,

7

Pursuant to state directives, WCI had five housing designations:
general population, protective custody, administrative segregation,
disciplinary segregation, and special needs housing. Am. Compl. ¶ 23.

4

and the Chief of Security.

Id. ¶¶ 29-30.

“Routine” inmate

housing assignments are made by the Housing Unit Manager or the
Correctional Officer in charge of the Housing Unit, after taking
into account “age, physical characteristics, intelligence
information, . . . behavior record,” and whether the inmate
cellmates will get along.

Id. ¶ 31.

Thompson was serving a life sentence for murder and had
been transferred from disciplinary segregation in North Branch
Correctional based on some undescribed “altercation” with
another inmate.

Id. ¶¶ 32-33.

Prior to joining the general

population at WCI, Thompson was housed in administrative
segregation.

Id. ¶ 33.

After joining the general population,

Thompson committed multiple housing violations, landing him in
disciplinary segregation.

Id. ¶ 35.

Thompson allegedly had a

“history throughout his incarceration of repeatedly attacking
other inmates and law enforcement officers,” and had received
criminal sentences for some of those attacks.

Id. ¶ 36.

For

example, in 2002, Thompson was convicted of Reckless
Endangerment.

Id.

In 2011, Thompson was convicted of Second

Degree Assault on a Law Enforcement officer.

Id.

Plaintiffs allege that it was “well known” that Thompson
suffered from “a mental and/or psychological illness” which
involved eating foreign objects, putting strange materials in
his hair, talking to himself, talking about hurting others, and
5

wandering around the prison pretending to shoot others.
37.

Id. ¶

These behaviors were “observed by anyone who came into

contact with” him.

Id. ¶ 38.

At some point, an Assistant State’s Attorney for Alleghany
County had filed a “Suggestion of Incompetency” confirming that
Thompson had been diagnosed with “Nonorganic Psychosis,”8 and
“believed Thompson to be delusional.”

Id. ¶¶ 39-40.

A year

prior to Wallace’s murder, Thompson’s case management file
stated that Thompson “displayed behavior that could possibly be
a threat to the institution.”

Id. ¶ 41.

On September 2, 2013, Wallace was assigned to share a cell
with Thompson.

This decision was approved by Defendant Warden

Bishop and two John Doe Defendants, the Chief of Security and
the Chief Psychologist.

Id. ¶ 42.

Wallace was “Muslim and was

5’7 and weighed approximately 182 pounds.”

Id. ¶ 54.

Thompson

was “not Muslim and was” larger, described as “6’4 and [who]
struck a very imposing figure.”

Id.

The assignment was

allegedly “not in compliance with WCI’s directives set forth for
internal movements and assignments of inmates.”
8

Id.

The Amended Complaint does not state when the Suggestion of
Incompetency was filed, to whom it was filed, and whether it was in
Thompson’s case management file. It also states that the contents
were “known and verified by prison mental health staff” but it is
unclear who the staff members were and whether they were WCI staff or
from another institution. A reasonable inference from the record is
that this was filed with the state court during Thompson’s criminal
trial for Wallace’s death. See id. ¶ 40.

6

Plaintiffs allege that the Individual Defendants knew about
Thompson’s prior violence and mental health issues but, contrary
to WCI’s rules and regulations, approved the cell assignment
with Wallace and failed to take measures to report or mitigate
the harm that Thompson posed to Wallace.

Id. ¶¶ 42-43.

The

Amended Complaint states that “[U]pon information and belief,”
this reassignment was done intentionally by Defendants “as
retribution for an earlier altercation involving Wallace and a
staff member within the Housing Unit at WCI.”

Id. ¶ 45.

There

are no allegations stating who was involved in this
“altercation,” when it occurred, and under what circumstances.
On September 3, 2013, Wallace wrote to his family,
expressing concerns for his safety and stating that he wanted to
be transferred out of the cell he shared with Thompson to
another cell as soon as possible.

Id. ¶ 44.

Wallace, however,

did not take action to seek a transfer at WCI and was murdered
10 days later.

Id.

B. Wallace’s Murder on September 13, 2013
On the date of the murder, Captain Sneathen was the
“highest-ranking official in charge” for Housing Unit #3,
Officer Cook was the “Officer in Charge” of Housing Unit #3, and
Officers Heavener, Stevey, and May were correctional officers
assigned to Housing Unit #3.

Id. ¶¶ 49-53.
7

That evening, Wallace was assaulted and beaten by Thompson
in their cell sometime between 6:10 PM and 6:30 PM.

Id. ¶ 55.

After the beating he lay injured on the floor of his cell until,
more than two hours later, he was discovered by officers and
later died from his injuries.

Id. ¶¶ 67-69.

Before the assault, at 6:10 PM, Wallace and Thompson had
returned to their cell after dinner.

Id. ¶ 56.

Officer

Heavener “conducted a head count on the tier” starting at 6:10
PM and finishing at 6:30 PM, and then returned to the control
room.

Id. ¶¶ 57-58.

Thus, Heavener was allegedly on the tier

at the time of the assault.
Around 6:30 PM, the Special Housing Observation Unit
(“SHOU”) contacted the control room and requested that Thompson
report to them for urinalysis testing.

Id. ¶ 58.

When this

request was made, Officers Heavener, May, Stevey, and Cook were
in the control room.

Defendants “Heavener [and/]or May

unlocked” Thompson’s and Wallace’s cell at approximately 6:30
PM.

Id. ¶ 58.

Thompson went “unescorted” from his cell to the

control room and was then escorted to SHOU by Defendant Stevey
for urinalysis testing.

Id. ¶ 59.

Plaintiffs allege that the Individual Defendants failed to
notice that Wallace had been attacked.

Officer Heavener stated

at Thompson’s murder trial that he watched Thompson walk down
the tier towards the control room wearing white shoes rather
8

than his usual brown boots, “which he thought was strange.”
¶ 60.

Id.

When escorting Thompson to SHOU, Officer Stevey “failed

to see” blood stains on Thompson’s shirt sleeve, rips in his
shirt, and his bloody knuckles.

Id. ¶ 61.

Another inmate,

Middleton, was housed in a nearby cell and testified at
Thompson’s trial that between 6:10 and 6:30, he heard Wallace
say “Chill dog” to Thompson.

Id. ¶ 62.

Middleton also heard

“sounds of fighting” and the sound of “metal scraping along the
floor” coming from the shared cell.

Id.

Officer Heavener conducted “another walk on the tier” and
noted at 7:00 PM that the tier was secure.

Id. ¶ 66.

At 7:30

PM, the inmates of the tier were sent to the Recreational Hall.
Id. ¶ 66.

At this time, both Officer Heavener and Officer May

“noticed several inmates making a point to walk past” Thompson’s
and Wallace’s cell, “survey the inside and then talk amongst
themselves.”

Id. ¶ 66.

Nothing was done in response to this

observation.
Wallace was not discovered until “well over an hour later,”
(presumably, 8:30 PM or later), when Middleton approached
Officers Heavener and May and told them that Wallace was lying
unresponsive on the floor of his cell.

Id. ¶ 67.

When the two

officers arrived at the cell, Wallace’s “head and chest” were
“under his bunk” and he was bleeding from his ears, nose, and
mouth, although he was still alive and “making a wheezing or
9

gargling noise.”

Id. ¶ 68.

He had sustained massive head

trauma with exposed brain matter and later died from his
injuries.

Id. ¶ 69.

Ultimately, Thompson was convicted of

second degree murder for Wallace’s death.

II.

DISMISSAL STANDARD
A motion to dismiss filed pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.
A complaint need only contain “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.”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)(citations omitted).

When

evaluating a 12(b)(6) motion to dismiss, a plaintiff’s wellpleaded allegations are accepted as true and the complaint is
viewed in the light most favorable to the plaintiff.

However,

conclusory statements or a “formulaic recitation of the elements
of a cause of action” will not suffice.

Id.

A complaint must

allege sufficient facts to “cross ‘the line between possibility
and plausibility of entitlement to relief.’”

Francis v.

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)(quoting Twombly,
550 U.S. at 557).
Inquiry into whether a complaint states a plausible claim
is “a context-specific task that requires the reviewing court to
10

draw on its judicial experience and common sense.”

Id.

Thus,

if the well-pleaded facts contained within a complaint “do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not shown –
that the pleader is entitled to relief.”

Id. (quoting Ashcroft

v. Iqbal, 556 U.S. 662, 679 (2009)).
Generally, a motion to dismiss filed under Rule 12(b)(6)
cannot reach the merits of an affirmative defense.
Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007).

Goodman v.
However,

affirmative defenses are appropriate to consider at the Rule
12(b)(6) stage “when the face of the complaint clearly reveals
the existence of a meritorious affirmative defense.”

Occupy

Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013) (emphasis
added) (quoting Brockington v. Boykins, 637 F.3d 503, 506 (4th
Cir. 2011)).

III. DISCUSSION
A. Counts I and II — Federal Constitutional Claims
Plaintiffs assert claims under 42 U.S.C. § 1983 for alleged
violations of rights provided by the Eighth and Fourteenth
Amendments.

Count I is asserted against Defendants Heavener,

Cook, May, and Stevey (“Inferior Officers”).

Count II is

asserted against Defendants Bishop, Sneathen, and the three John
Doe Defendants (“Superior Officers”), and includes an allegation
11

that these Defendants failed to supervise their inferiors.

The

Court will address these two counts together.
Section 1983 provides:
Every person who, under color of [state law]
subjects, or causes to be subjected, any
citizen of the United States . . . to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured
. . . .
42 U.S.C. § 1983.

Thus, to establish a § 1983 claim, a

plaintiff must prove that a defendant:
1. Acted under color of state law,
2. Deprived him/her of a right secured by the
Constitution, and
3. Is not entitled to qualified immunity.
There is no doubt that all pertinent actions of the
Individual Defendants were performed under color of state law,
i.e., as state officials.

1.

Eighth Amendment Claims

The Eighth Amendment to the United States Constitution
provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.”

U.S. Const. amend. VIII.

“The Eighth Amendment

imposes a duty on prison officials ‘to protect prisoners from
violence at the hands of other prisoners.’”

Odom v. S.C. Dep’t

of Corr., 349 F.3d 765, 770 (4th Cir. 2003) (quoting Farmer v.
12

Brennan, 511 U.S. 825, 833 (1994)).

To establish a failure to

protect claim under the Eighth Amendment’s prohibition of cruel
and unusual punishment, a plaintiff must prove that (1) there
was a “sufficiently serious” deprivation, and (2) the defendants
had a “sufficiently culpable state of mind.”

Farmer, 511 U.S.

at 834.
For the first part of the test, “the inmate must show that
he is incarcerated under conditions posing a substantial risk of
serious harm.”

Id.

“[T]o demonstrate such an extreme

deprivation, a prisoner must allege a serious or significant
physical or emotional injury resulting from the challenged
conditions . . . .”

Odom, 349 F.3d at 770 (alteration in

original) (quoting De’Lonta v. Angelone, 330 F.3d 630, 634 (4th
Cir. 2003)).
For the second part of the test, the requisite state of
mind “is one of ‘deliberate indifference’ to inmate health or
safety.”

Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501

U.S. 294, 302-303 (1991)).

Deliberate indifference “entails

something more than mere negligence” but it can be “satisfied by
something less than acts or omissions for the very purpose of
causing harm or with knowledge that harm will result.”
835.

Id. at

“It is . . . fair to say that acting or failing to act

with deliberate indifference to a substantial risk of serious
harm to a prisoner is the equivalent of recklessly disregarding
13

that risk.”

Id. at 836.

Courts apply a subjective standard, under which “the
official 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.”

Id. at 837.

The Court has held in the Memorandum and Order [ECF No. 81]
that Plaintiffs adequately alleged the first element of serious
harm.

See Parker v. Maryland, 413 F. App’x 634, 638 (4th Cir.

2011) (“Since Parker was murdered while in custody, the first
part of the test is clearly satisfied.”).
The question now presented is whether the Amended Complaint
plausibly alleges a claim that any specific Individual Defendant
was aware of facts upon which he could draw an inference that a
substantial risk of serious harm existed either before or during
Thompson’s attack, and that the particular Defendant actually
drew such an inference.9

9

Plaintiffs also make reference to “excessive and unreasonable
force and seizure” claims, see, e.g., Am. Compl. ¶ 82, but there are
simply no facts alleged to support a claim that the officials used
force or physically confronted Wallace at any point. See, e.g.,
Hudson v. McMillian, 503 U.S. 1 (1992).

14

a. Count I: Liability Of Inferior Officers
Count I is asserted against Defendants Heavener, Cook, May,
and Stevey (collectively, the “Inferior Officers”), alleging
that:


Defendants Heavener, Cook, May, and Stevey failed to
protect Wallace from physical harm despite knowing of
Thompson’s history of violence, Am. Compl. ¶ 76;



Defendants Heavener, May, Stevey knew or should have
known that Thompson was a threat to Wallace’s safety
yet “allowed for this cell assignment to continue,”
id. ¶¶ 77, 83, 88;



Defendant Heavener deliberately failed to stop the
attack by ignoring sounds and signs of the struggle,
id. ¶ 78;



Defendants Heavener, May, Stevey should have known
that Wallace was in need of medical attention yet
failed to act, id. ¶¶ 79, 84, 89;



Defendant Cook “showed deliberate indifference” to the
safety of Wallace by allowing him to be assigned to a
cell with Thompson, id. ¶ 93; and



Defendants Heavener, May, Stevey, and Cook
“deliberately ignored the attack” on Wallace by
Thompson, id. ¶ 97.

The allegations in Count assert the failure of Defendants
Heavener, Cook, May, and Stevey to (1) challenge the cell
assignment, (2) stop the attack, and (3) respond in time to
provide Wallace with needed medical attention.
The Court noted in the Memorandum and Order that the
original Complaint did not allege sufficient facts to establish
a plausible claim against any specific Individual Defendant.
15

Memorandum and Order at 16, ECF No. 81.

To state a claim

against an individual under § 1983, a plaintiff must show “that
the official charged acted personally in the deprivation of the
plaintiffs’ rights.”

Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th

Cir. 1977).
First, the Amended Complaint presents conclusory
allegations that the Inferior Officers (Heavener, May, Stevey,
Cook) failed to challenge the housing assignment.

For example,

it states that Defendants Heavener, May, Stevey, and Cook were
responsible for the “inspection, monitoring, safekeeping and
security” of Wallace’s Housing Unit.

Am Compl. ¶ 38.

They were

responsible for monitoring the Housing Unit and tier on which
Wallace and Thompson were housed.

Id. ¶¶ 50-53.

The four

Defendants are faulted for failing to take steps to separate
Thompson and Wallace and allowing them to share a cell together.
Id. ¶ 43.

These allegations do no more than state the officers’

daily responsibilities and allege generally that they acted with
deliberate indifference in not challenging the housing
assignment.
Next, the allegations regarding the murder of Wallace on
September 13, 2013 must be evaluated separately for each
individual Inferior Officer.
That night, Defendant Heavener conducted a head count on
the tier starting at 6:10 PM and ending at 6:30 PM, and then
16

returned to the control room.

Id. ¶¶ 57-58.

Therefore, he was

on the tier during the time the attack was ongoing and in a
position to possibly hear or see indications that Wallace was
being attacked.

Defendants Heavener and/or or May unlocked

Thompson and Wallace’s cell so that Thompson could go to
urinalysis testing.

Id. ¶ 59.

Heavener testified at the

Thompson murder trial that he noticed Thompson was wearing white
shoes rather than his usual brown boots, “which he thought was
strange.”

Id. ¶ 60.

He conducted a second walk on the tier at

7:00 PM but did not come to the aid of Wallace who was then
lying on the floor in his cell, severely injured and bleeding.
Id. ¶¶ 64-65.

He “noticed several inmates making a point to

walk past Wallace’s cell” and testified at the murder trial that
this behavior was out of the ordinary, yet he did not come to
the cell to investigate.

Id. ¶ 66.

An hour or more after his

walk on the tier, Heavener was approached by another inmate,
Middleton, and was told that Wallace was unresponsive.
and found Wallace lying on the floor of his bunk.

He then

Id. ¶ 67.

Recognizing the existence of genuine issues of material fact,
the Court finds the allegations sufficient to present a
plausible claim that Heavener knew of and deliberately
disregarded Wallace’s needs.
The allegations are not, however, sufficient to present a
plausible claim against any other Individual Defendant.
17

Defendant May was alleged to be in or near the control room
during the attack but is not alleged to have heard sounds of the
attack.

Nor is he alleged to have been informed of whatever

Heavener may have observed during his walks on the tier during
and after the attack.

The Amended Complaint alleges that May

and/or Heavener unlocked the cell housing.

This “conditional”

statement does not amount to an allegation that May was present
at the cell and in a position to see Wallace lying on the floor.
Id. ¶¶ 59, 131.

Like Heavener, May “noticed several inmates

making a point to walk past Wallace’s cell” and testified at the
murder trial that this behavior was out of the ordinary, yet he
did not come to cell to investigate.

Id. ¶ 66.

And like

Heavener, after 8:30 P.M., May was approached by Middleton, was
told that Wallace was unresponsive, and found Wallace lying on
the floor of his bunk.

Id. ¶ 67.

The allegations against May lack the critical allegations
against Heavener of presence on the tier at the time of the
attack and presence on the tier at 7:00 P.M. for a second walk
that led to the conclusion that all was secure.

Because those

critical allegations are not made against May - which would have
indicated a plausible possibility that he had been in a position
to view the inside of the cell but disregarded seeing Wallace
lying on the floor injured – the Court finds that Plaintiffs
have insufficiently pleaded a claim against May.
18

The allegations against Defendants Stevey and Cook are even
less substantial than those against May.

Defendant Stevey

escorted Thompson from the control room to the SHOU for
urinalysis testing.

Id. ¶ 59.

He is faulted for not noticing

“blood stains on Thompson’s shirt sleeve,” “Thompson’s ripped
shirt,” or “Thompson’s bloody knuckles.”10

Id. ¶ 61.

Defendant

Cook was the officer in charge of the Housing Unit that day, and
was allegedly in the control room during the time the attack
occurred.

Id. ¶¶ 50, 59, 93.

The allegations against May, Stevey, and Cook do not
present a plausible claim that any of these individual Inferior
Officers was aware of a substantial risk of harm to Wallace
before or during the attack.

These officers are not alleged to

have knowledge of Thompson’s mental health diagnoses or that any
such diagnoses would have posed a substantial risk of harm to
Wallace or others at WCI.

Nor do the various signs of something

amiss (e.g., inmates standing in front of the cell, Thompson
wearing different boots, or Thompson’s allegedly swollen or
bloody knuckles) support a finding that these officers actually
drew such an inference of substantial harm.

10

Farmer, 511 U.S. at

Other parts of the Amended Complaint state that Stevey should
have noticed blood on Thompson’s shoe and swollen knuckles (not bloody
knuckles). Am. Compl. ¶¶ 89, 136. This statement may contradict
another allegation suggesting that Thompson had changed shoes after
the attack. Id. ¶ 60.

19

837 (“the official 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.”).

Nothing

indicates that the three officers were aware of the attack and
deliberately ignored it.

Furthermore, nothing indicates that

the officers did not immediately seek medical support when they
were alerted to Wallace’s injuries.
Defendant Heavener stands in a different position from the
other Individual Defendants.

Heavener conducted two head counts

of the tier: one from 6:10 PM to 6:30 PM, during the period the
attack was allegedly occurring, and a second at 7:00 PM, when
Wallace was allegedly already lying on the bottom of his bunk.
It is reasonable to infer that conducting a head count includes
physically walking past the cells in the tiers and looking into
the cells so that it is plausible that he would have seen
Wallace’s condition.

During the 6:10 PM to 6:30 PM time frame,

when Heavener was on the tier conducting a head count, at least
one other inmate on the tier could hear the sounds of a struggle
and of metal scraping against the floor.

Of course, Heavener

may deny that he heard or saw any signs of an attack or struggle
because he was too far from Thompson’s and Wallace’s cell.
However, a Motion to Dismiss is not the proper vehicle to obtain
a factual finding regarding Plaintiff’s disputed allegations.
Taking Plaintiff’s factual allegations as true, the Court finds
20

that it is at least plausible that Heavener noticed signs of the
attack on Wallace and made a deliberate decision to ignore them.
That is all that is required at the pleading stage.
Accordingly, Count I shall be dismissed against individual
Inferior Officers May, Stevey, and Cook, but remains pending
against individual Inferior Officer Heavener.

b. Count II: Liability Against Superior Officers
Count II, asserted against Defendants Bishop, Sneathen, and
the three John Doe Defendants, alleges that:


Defendants Bishop, Sneathen, and the John Doe
Defendants failed to protect Wallace from physical
harm despite “specific knowledge of Thompson’s history
of violence,” id. ¶ 104;



Defendant Bishop and the John Doe Defendants failed to
comply with WCI’s housing directives by allowing
Thompson to be in the general population, id. ¶ 105;



Defendants Bishop, Sneathen, and the John Doe
Defendants did not follow policy when assigning
Wallace to the same cell as Thompson and not assigning
Thompson to special confinement housing, id. ¶ 106;



Defendant Bishop and two John Doe Defendants (the
Chief Psychologist and the Chief of Security) allowed
Thompson to be housed in general population instead of
in a facility equipped to handle mentally ill inmates,
id. ¶ 107;



Defendant Sneathen was the highest ranking officer
assigned to Housing Unit #3 and allowed Thompson to
remain on the tier with Wallace, id. ¶ 110;



Defendant Sneathen failed to supervise Defendants
Heavener, May, Cook, and Stevey to ensure they were
21

properly monitoring Housing Unit #3 and the safety of
Wallace, id. ¶ 111;


A John Doe Defendant (the Housing Unit Manager) did
not follow WCI directives when assigning Wallace to
share a cell with Thompson, id. ¶ 115;

In sum, the allegations in Count II pertain to the Superior
Officers’ allegedly (1) improperly assigning Thompson and
Wallace to the same cell and (2) failing to supervise the
Inferior Officers (who should have either challenged the housing
assignment or have properly monitored Housing Unit #3 on the day
of the murder).
Respondeat superior liability for a constitutional tort
does not apply in § 1983 cases.

See Monell v. Department of

Social Services, 436 U.S. 658, 691 (1978); Love–Lane v. Martin,
355 F.3d 766, 782 (4th Cir. 2004); see also Eastman v. Warden,
Baltimore City Det. Ctr., No. CCB-10-2389, 2011 WL 210343, at *2
(D. Md. Jan. 21, 2011) (finding an inmate’s claim against the
Warden defective when the inmate “raises no allegations in the
complaint against the Warden”).
Therefore, Plaintiffs characterize their claim as one for
“failure to supervise,” a claim which must meet a high bar:
Generally, a failure to supervise gives rise
to § 1983 liability, however, only in those
situations in which there is a history of
widespread abuse. Only then may knowledge
be imputed to the supervisory personnel . .
. . A single act or isolated incidents are
normally insufficient to establish
supervisory inaction upon which to predicate
22

§ 1983 liability.
Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983).
A failure to supervise claim requires proof of three
elements:
(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.”

Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
The facts alleged do not plausibly suggest a history of
widespread abuse.

The allegations made in the Amended Complaint

are limited in scope to the September 13, 2013 single incident
of Thompson’s assault of Wallace.

There is no suggestion of

other similar abuses or conduct that posed a “‘a pervasive and
unreasonable risk’ of constitutional injury.”

Id.

Plaintiff’s

presentation of news articles stating that showing that other
unrelated Maryland inmates were murdered by their cellmates does
not establish the plausible existence of a custom or practice at
23

WCI or provide a basis to impute these events to the Defendants
in the instant case.
Moreover, the Amended Complaint does not allege facts
sufficient to find the individual Superior Officers liable for
their personal involvement in Wallace’s assault and death.
Defendant Bishop had general oversight duties as Warden of
WCI (Am. Compl. ¶ 12), was responsible for implementing certain
WCI directives but allegedly did not do so (id. ¶¶ 24, 46),
approved Thompson’s transfer into general population (id. ¶¶ 42,
71), declined to place Thompson in administrative or
disciplinary segregation (id. ¶ 46), and declined to take other
actions to separate Thompson and Wallace (id. ¶ 48).
Defendant Sneathen was Captain at WCI and the highestranking official in charge of Wallace’s housing unit (id. ¶¶ 13,
49), was responsible for the “supervision, inspection,
monitoring, safekeeping and security” of Wallace’s housing unit
(id. ¶ 38), allowed Thompson and Wallace to remain housed
together (id. ¶ 43), was responsible for implementing WCI
directives and supervising the inferior correctional officers
(id. ¶ 49), and did not take action to stop the attack or render
medical assistance to Wallace (id. ¶ 63).
The allegations for the John Doe Defendants are similar to

24

the allegations for Bishop and Sneathen.11

Id. ¶¶ 18-20, 46-48,

71, 105, 106, 146-147.
These allegations are generalized, conclusory, and contain
few specifics beyond statements of the duties and
responsibilities of these officers.

The statement of these

officers’ daily responsibilities, without more, does not give
rise to a plausible claim of violation of Eighth Amendment
rights by the Individual Defendants.
Accordingly, Plaintiffs’ Eighth Amendment claims in Counts
I and II shall be dismissed against the Superior Officers
Bishop, Sneathen, and the three John Doe Defendants.

2. Fourteenth Amendment Claims
The Fourteenth Amendment to the United States Constitution
provides that “[n]o State shall . . . deprive any person of
life, liberty, or property, without due process of law.”
Const. amend. XIV, § 1.

U.S.

The Memorandum and Order stated that

Plaintiffs were relying on a substantive due process claim, not
a procedural due process claim.
No. 81.

Memorandum and Order at 18, ECF

Likewise, the Amended Complaint states that Wallace was

deprived of his “right to be free from the deprivation of life

11

Indeed, the Plaintiffs’ allegations for these three John Doe
Defendants are not materially distinguished from each other.

25

and liberty without due process of law.”

See, e.g., Am. Compl.

¶ 82.
An inmate’s Fourteenth Amendment substantive due process
claim is essentially equivalent to an Eighth Amendment claim.12
To establish a substantive due process claim, a plaintiff must
prove that a defendant abused executive power in a way that
“shocks the conscience” because of its egregiousness.
Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998).

Cty. of

The

deliberate indifference standard used in Eighth Amendment cases
may also “satisfy the fault requirement for due process
claims.”

Id. at 850.

Allegations of negligent lack of due care

by prison officials do not trigger procedural or substantive due
process protections.13

Davidson v. Cannon, 474 U.S. 344, 347-48

(1986).
For reasons stated above, the Court finds that the
Plaintiffs also have not stated plausible Fourteenth Amendment
Claims against any of the Individual Defendants except for
Heavener.

Accordingly, Plaintiffs’ Fourteenth Amendment Claims

12

C.f. Hill v. Nicodemus, 979 F.2d 987, 990-91 (4th Cir. 1992);
Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001); King-Fields v.
Leggett, No. CIV.A. ELH-11-1491, 2014 WL 694969, at *10 (D. Md. Feb.
19, 2014)(Hollander, J.)(applying Eighth Amendment standards used to
assess claims brought by convicted prisoners to Fourteenth Amendment
claims asserted by pretrial detainees).
13

Thus, any claims based upon negligent failure to follow policies
or to provide adequate resources or staff are constitutionally
insufficient.

26

shall be dismissed against all Individual Defendants except for
Heavener.

3. Qualified Immunity
The Court will dismiss the federal claims for failure to
state a plausible claim against all Individual Defendants except
for Defendant Heavener.

Accordingly, the Court need only

address qualified immunity for Defendant Heavener.
“Qualified immunity, when found to apply, bars § 1983 suits
against government officers in their individual capacity.”
Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d
324, 330 (4th Cir. 2009).

The qualified immunity inquiry by the

court involves two steps:

First, to determine “whether a

constitutional right would have been violated on the facts
alleged,” and second, to decide “whether the right was clearly
established at the time such that it would be clear to an
objectively reasonable officer that his conduct violated that
right.”

Id.

The Court recognizes that the question of qualified
immunity is ultimately a legal one, id. at 331, but in the
instant case the Court finds it now premature to resolve this
issue.

Discovery appears likely to present evidence relevant to

the rights (if any) actually violated and whether a reasonable
official in Defendant Heavener’s position would have violated a
27

clearly established right.

Raub v. Campbell, 785 F.3d 876, 882

(4th Cir. 2015) (“we look not to whether the right allegedly
violated was established ‘as a broad general proposition’ but
whether ‘it would be clear to a reasonable official that his
conduct was unlawful in the situation he confronted.’”).
Accordingly, the Court is not now resolving whether Heavener
would be entitled to dismissal of Plaintiffs’ claims by virtue
of qualified immunity.

B. Counts III-VI: Maryland Constitutional Claims, Wrongful
Death, Survival Action, and Gross Negligence
1.

Statutory Immunity

The Memorandum and Order dismissed the Plaintiff’s common
law claims based on negligent conduct because the Individual
Defendants are statutorily immune from these suits.

Memorandum

and Order at 23, ECF No. 81; Md. Code Ann., State Gov’t § 12105; Conaway v. State, 672 A.2d 162, 172 (Md. Ct. Spec. App.
1996); Young v. City Of Mt. Ranier, 238 F.3d 567, 578 (4th Cir.
2001); Lee v. Cline, 863 A.2d 297, 310 (Md. 2004).
The Amended Complaint appears to rely on allegations of
malice and gross negligence by the Individual Defendants, which
claims are not immunized by statutory immunity.

See Am. Compl.

¶ 170 (Count V survival action states that “[t]he aforesaid acts
and omissions exceeded mere negligence and/or gross

28

negligence”); id. ¶ 179 et seq. (Count VI alleging gross
negligence).
“Malice” for statutory immunity purposes “requires a
showing that ‘the official ‘intentionally performed an act
without legal justification or excuse, but with an evil or
rancorous motive influenced by hate, the purpose being to
deliberately injure the plaintiff’’” and “may be inferred from
the surrounding circumstances.”

Talley v. Farrell, 156 F. Supp.

2d 534, 545 (D. Md. 2001) (quoting Green v. Brooks, 725 A.2d
596, 610 (Md. Ct. Spec. App. 1999)).

Plaintiffs “‘must allege

with some clarity and precision those facts which make the act
malicious.’”

Id.

Plaintiff’s allegations do not present a plausible claim of
malice on the part of any Individual Defendant.

There are no

allegations showing “an evil or rancorous motive influenced by
hate, the purpose being to deliberately injure the plaintiff.’”
Talley, 156 F. Supp. 2d at 545 (D. Md. 2001).

There is an

unsupported allegation in the Amended Complaint that some
officers put Wallace in Thompson’s cell as retribution for a
prior altercation that had occurred between Wallace and an
unnamed correctional officer on the tier, but there are no
detailed allegations about this altercation, who was involved,
between whom, under what circumstances it occurred, and how
close in time the altercation was to the housing assignment
29

decision.

Am. Compl. ¶¶ 45, 77.

Gross negligence, in the context of statutory immunity, has
been defined as:
something more than simple negligence, and
likely more akin to reckless conduct; gross
negligence is “an intentional failure to
perform a manifest duty in reckless
disregard of the consequences as affecting
the life or property of another, and also
implies a thoughtless disregard of the
consequences without the exertion of any
effort to avoid them.”
Cooper v. Rodriguez, 443 Md. 680, 707, 118 A.3d 829, 845 (2015)
(quoting Barbre, 935 A.2d at 717).
The Amended Complaint provides a list of the alleged
grossly negligent tortious conduct by all Defendants, including
the failure to:
“a. Examine, diagnose, and treat Thompson’s
mental illness;
b. Adhere to WCI’s rules, regulations,
policies, procedures, and penological
practices concerning inmate safety by
allowing a violent and known mentally ill
inmate into general population;
c. Assign Thompson to special confinement
housing, administrative segregation, and/or
a behavior management program;
d. Ensure the safety of Wallace in
accordance with WCI’ policies and
procedures,
e. Render aid when Thompson attacked and
killed Wallace; and
f. All additional facts and circumstances,
30

acts, errors, and omissions, which amounted
to, an utter disregard of care and a
complete neglect of safety owed to Wallace
and proximately caused strangulation,
assault, and battery and death of Wallace
and damages set forth.”
Am. Compl. ¶ 182.
These statements do not constitute factual allegations that
plausibly allege gross negligence beyond stating generally the
necessary elements for the tort.

Plaintiffs seek to have the

Court consider all Individual Defendants together as a single
person by assuming that what one may know or learn is known to
all the others.

Plaintiffs also seek to have the Court assume

that what any single WCI officer may know about Thompson’s
altercations with other officers at other prisons was
necessarily known by the Individual Defendants in this case.
They seek to have the Court assume that Thompson’s behavior
would be recognized by the Individual Defendants - almost all
who were WCI officers untrained in psychology - as rendering him
a sufficient risk to others so that he should not be assigned to
share a cell with anyone.
Except as to Defendant Heavener, the Amended Complaint does
not present factual allegations sufficient to present a
Defendants’ gross negligence that would waive statutory
immunity.

Defendant Heavener – because of the plausible claim

that he knew of the attack and of Wallace’s condition that day -

31

stands in a different position.

As to him, the Court finds that

the Plaintiffs have sufficiently alleged a plausible claim of
gross negligence such that his statutory immunity would be
waived.
Accordingly, all Defendants, except for Defendant Heavener,
are statutorily immune from the claims in Counts III-VI.

2.

Public Official Immunity

As to Defendant Heavener, the Court finds that Plaintiffs
have plausibly alleged gross negligence.

This would bar him

from asserting the affirmative defense of public official
immunity.

Cooper, 118 A.3d at 849.

3.

Count III: State Constitutional Claims14

In Count III, Plaintiffs assert claims under the Maryland
Declaration of Rights Articles 24

15

and 26.16

The Declaration of

Rights claims are essentially duplicative of the federal

14

Counts III through VI are state law claims for which Plaintiffs
have adequately alleged compliance with the notice provision of the
MTCA. Am. Compl. ¶ 5.

15

“[N]o man ought to be taken or imprisoned or disseized of his
freehold, liberties or privileges. . . or deprived of his life,
liberty or property, but by the judgment of his peers, or by the Law
of the land.” Md. Const. Decl. of Rts. art. XXIV.
16

“[A]ll warrants, without oath or affirmation, . . . to seize any
person or property, are grievous and oppressive.” Md. Const. Decl. of
Rts. art. XXVI.

32

constitutional claims under Counts I and II.17
Harper, 757 A.2d 118, 140–41 (Md. 2000).

See Okwa v.

For the reasons stated

above, these claims shall be dismissed against all Individual
Defendants except for Defendant Heavener.

4. Count IV - VI: Wrongful Death, Survival Action,
and Gross Negligence
There are insufficient factual allegations to support a
finding of malice or gross negligence by the Individual
Defendants other than Heavener.

Accordingly, the wrongful death

and survival claims are barred by statutory immunity and are
dismissed against all Individual Defendants except for Defendant
Heavener.
However, the Wrongful Death, Survival Action, and Gross
Negligence claims remaining pending against Defendant Heavener
because they rest on adequate factual allegations against him.

17

Although Plaintiffs nominally bring claims pursuant to Articles
24 and 26 of the Maryland Declaration of Rights, the substance of
their claims seems to fall under Article 25, the analogue to the
Eighth Amendment. Article 25 provides “[t]hat excessive bail ought
not to be required, nor excessive fines imposed, nor cruel or unusual
punishment inflicted, by the Courts of Law.” Md. Const. Decl. of Rts.
art. XXV.

33

IV.

CONCLUSION:
For the foregoing reasons:
1. Defendants’ Motion to Dismiss Or, In the Alternative,
Motion for Summary Judgment [ECF NO. 94] is GRANTED.
2. Defendant Reginald Heavener’s Motion to Dismiss
Plaintiffs’ Amended Complaint [ECF No. 93] is DENIED.
3. All claims are dismissed against the following
Defendants: Frank B. Bishop, Jr., George Sneathen,
William May, David Stevey, Drew Cook, and three “John
Doe” Correctional Officers (Officer #1, The Chief
Psychologist; Officer #2, the Chief of Security; and
Officer #3, the Housing Unit Manager)
4. All claims remain pending against Defendant Reginald
Heavener.
5. Plaintiffs shall arrange a case planning conference to
be held with the remaining parties and the Court by May
23, 2018.
SO ORDERED, this Monday, April 23, 2018.

/s/__________
Marvin J. Garbis
United States District Judge

34