Brown v. Skully et al
Filing
25
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 2/21/2018. (c/m 2/22/18 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
OTAGWYN BROWN, #367376
Plaintiff,
v.
*
C.O. SHARON SKELLY1
C.O. JOSHUA TART
C.O. JUSTIN L. ADAMS
Defendants.
*
*
CIVIL ACTION NO. ELH-16-3808
*
*****
MEMORANDUM OPINION
Otagwyn Brown, the self-represented plaintiff, is a State inmate currently confined at the
North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland. On November 22,
2016, he filed a civil rights suit against NBCI Correctional Officers Sharon Skelly, Joshua Tart,
and Justin Adams. ECF 1. He alleges, inter alia, a violation of the Eighth Amendment, on the
ground that the defendants “interfere[d] with the medical care” that had been ordered for him.
Id. at 4.2 Brown seeks injunctive relief as well as compensatory and punitive damages. Id. at 3,
9.
Defendants have moved to dismiss or, in the alternative, for summary judgment. ECF 13.
The motion is supported by a Memorandum (ECF 13-1) (collectively, the “Motion”) and
exhibits, including declarations and medical records. ECF 13-2 to ECF 13-7. Brown opposes the
Motion (ECF 19), and has filed a memorandum (ECF 19-1) (collectively, “Opposition”) and
exhibits. ECF 19-2 to ECF 19-5. Defendants have replied (ECF 21, “Reply”) and submitted
another declaration. ECF 21-1.
1
The docket shall be corrected to reflect the correct surname of this defendant as Sharon
Skelly, not Skully.
2
All references to docket entries reflect their electronic pagination.
No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2016). For
the reasons that follow, defendants' Motion, construed as a motion for summary judgment, shall
be denied.
I. Factual Background
Brown complains that he suffers from scoliosis of the lumbar spine and degenerative
changes to the thoracic and lumbar regions of the spine. Due to his conditions, on February 18,
2014, a prison physician issued a medical assignment order directing that plaintiff be provided
with a bottom bunk. ECF 1 at 3, 4. He states that the conditions cause him to experience
symptoms such as spasms and acute pain.
Brown alleges that this medical order was
disregarded, and in May and June of 2014, he was required, on multiple occasions, to move to
other cells, where he was assigned to a top bunk. He contends that he informed Correctional
Officers Sharon Skelly, Joshua Tart, and Justin Adams of the physician’s order, but they did not
contact medical personnel to verify his medical status and viewed his comments as “bulls—t.”
Brown asserts that on June 11, 2014, he fell as he was attempting to move from the top bunk and
required emergency care at an area hospital. Id. at 5-8.
Defendants indicate that “bottom bunks are highly sought after by inmates,” because
inmates “consider bottom bunk assignments as optimal for reasons of comfort and relative
freedom of movement.” ECF 13-2 (Decl. of William Beeman, NBCI’s Assistant Director of
Nursing), ¶¶ 2, 5. They affirm that they became aware of a practice of NBCI inmates forging
Medical Housing Assignment Forms to obtain bottom bunk assignments. ECF 13-2 (Beeman
Decl.); ECF 13-3 (Skelly Decl.); ECF 13-4 (Tart Decl.); ECF 13-5 (Adams Decl.). Further, they
maintain that NBCI inmates so frequently forged orders for medical assignments to bottom
bunks that, in November of 2011, the Medical Department began to affix an embossed seal on
2
their orders to distinguish authentic orders from inmate forgeries. ECF 13-2, ¶ 5. William
Beeman, the Assistant Director of Nursing at NBCI, avers that Brown’s medical assignment
order of March 14, 2014, does not have the embossed seal. ECF 13-2, ¶ 8; see also ECF 13-2 at
4 (Housing Assignment).
Defendants acknowledge that they escort inmates to their assigned cells, but they claim
that they lack authority to assign inmates to particular cells or bunks. Moreover, they deny that
they intentionally interfered with, denied, delayed contradicted, or hindered the implementation
of any valid medical order for Brown to be assigned to a bottom bunk. ECF 13-3; ECF 13-4;
ECF 13-5.
According to defendants, on November 21, 2013, while Brown was housed at NBCI, he
was moved from a bottom bunk to a top bunk. ECF 13-6 (Decl. of CO II Kevin Gurtler), at 6.
Fourteen days later, on December 5, 2013, Brown submitted a sick-call request, reporting that on
December 4, 2013, he fell when he “jumped” down from the top bunk and then slipped in water
on the floor and hit his “Butt Bone on the toilet.” ECF 13-7 (medical records), at 2. On
December 8, 2013, Brown was seen by Registered Nurse (“RN”) Carla Buck, who prescribed
Motrin. Id. at 14. He declined to be seen on December 11, 2013. Id. at 16. On December 24,
2013, Brown was seen by RN Kristi Cortez for complaints related to seasonal allergies, as well
as back and right leg discomfort attributable to his fall on December 4, 2013. Id. at 17-2, 19.
Brown was provided with a muscle rub. Id. at 19.
Plaintiff was seen by Colin Ottey, M.D., for an urgent care visit on February 14, 2014,
claiming he fell from the top bunk on that date. Id. at 20. He complained of pain in his midlower back and reported no sensation in his lower extremities. He was admitted to the infirmary
and radial examinations of the lumbar spine, sacrum, and coccyx were ordered. Id. at 20-27.
3
Brown filed a sick-call slip on March 6, 2014, again complaining of lower back and tail bone
pain, with severe spasms in his left leg since he fell from his bunk on February 14, 2014. Id. at
7. Another sick-call slip was submitted on March 15, 2014. Id. at 8.3
On June 11, 2014, Brown was apparently found on the floor of his cell “with an observed
fall.”
Id. at 30. He was seen by a nurse, placed in a cervical collar on a back board, and
transported to a hospital, where he was examined and CT and MRI tests (spinal cord) were
conducted. The CT report was negative for fracture and the MRI report was negative for fracture
of the spine. No contusion or hematoma was observed
Brown was able to stand and take
several steps; no leg weakness was detected. ECF 13-7 at 30-38. He was transported back to the
prison infirmary, where he was seen by RN Schultz on June 12, 2014. Brown denied numbness
or tingling of his extremities and related that he was climbing down off the top bunk when he
slipped and fell and hit his back on a chair. Id. at 39-41. He was released from the infirmary to
general population that same date. Id. at 42.
Brown was seen by Ava Joubert, M.D. on June 16, 2014, requesting the continuation of
his Baclofen and his assignment to a bottom bunk. The musculoskeletal examination was
normal. Baclofen and Ibuprofen were to be continued until June 26, 2014, and Brown was given
a written regimen sheet for back exercise. Id. at 45-46. When Brown was seen by Nurse
Practitioner Janette Clark on July 22, 2014, for his complaint of back pain and request for a
medical assignment, Clark found the back pain condition to be stable, as Brown indicated that he
could walk up and down the stairs, exercise, kneel, put on socks and shoes, walk an unlimited
distance, and perform daily activities of daily living. Clark found no indication for bottom bunk
status. Id. at 47-49.
3
The medical records contain various other sick-call requests, generally for reasons
unrelated to the issue of bunk assignment. Therefore, I have not referenced them.
4
In Brown’s Opposition, supported by his own Affidavit and exhibits, Brown claims that
he was assigned bottom bunk housing status by Dr. Ottey initially on February 14, 2014, due to
his scoliosis and degenerative back disease. ECF 19-1 at 2, 3. He contends he was issued an
authentic medical housing assignment and this was acknowledged in the defendants’ own
exhibits. Id. at 1. The bunk assignment was renewed by Dr. Ottey on March 14, 2014. Id. at 2.
Brown has provided two copies of the medical order of March 14, 2014, in an apparent effort to
show that the physician’s order was properly embossed. ECF 19-4.
Brown maintains that he informed and showed the correctional officers the physician’s
order and his medical status and that at no time did the defendants take action to determine if the
medical assignment order (which was embossed) was falsified or forged. Moreover, he asserts
that he was never accused of fraudulently forging a medical assignment nor adjudicated of doing
so. ECF 19-1 at 2, 3.
Further, Brown contends that none of the defendants followed prescribed protocol
relevant to verifying a prisoner’s medical status as to housing assignments, and the correctional
officers substituted their own “unqualified opinion as to [his] need for the special housing
assignment.” Id. Brown maintains that Ottey’s medical order, which was validated by his
administrative remedy procedure grievance and the decision of the Administrative Law Judge
(“ALJ”), was subject to “callous disregard” by defendants, resulting in his fall from his top bunk
and his transportation to a hospital emergency room. ECF 19-1 at 3; see ECF 19-3;4 ECF 19-5.
4
Brown attached the ruling of the ALJ, who found that Brown had a valid medical order
to be housed only in a bottom bunk; between May and June of 2014, he was reassigned three
times in NBCI Housing Unit No. 2, and all three times he was assigned to a top bunk. The ALJ
concluded that Brown has an existing back condition, he fell from his top bunk on June 11, 2014,
and suffered a contusion of his back; he previously notified correctional officers of his medical
bunk assignment, either verbally or by furnishing them with a copy of his medical order; the
obligation to be informed of inmates’ medical orders lies with the Division of Correction, not the
5
Further, Brown takes issue with the defendants’ asseverations that his medical order was
authentic because it was not embossed, stating that “if a photocopy of the document is made the
ridges of an embossed seal would not show as much.” ECF 19-1 at 8. He maintains that there
are material facts that are in dispute. Id. at 8, 10.
Brown’s Affidavit affirms that his medical order for bottom bunk status was not a forgery
and photocopies used at NBCI do not preserve the three dimensional ridges that are part of an
embossed seal. He maintains that, according to prison protocols, traffic personnel and housing
unit staff are to be provided with copies of a medical assignment order. ECF 19-2. Brown states
that he cannot prove what “defendants Skully, Tart, and Adams said, or what I showed them
without the court allowing me” to engage in discovery to obtain prison policies, manuals, video
archive surveillance, and prisoner declarations. Id. at 4.
In their Reply, defendants claim that the issue before the court is whether they acted with
deliberate indifference with respect to a genuine medical order when none was presented to
them. ECF 21.
II. Standard of Review
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 13. 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
inmates, and awarded him $100.00 in monetary damages. ECF 19-3.
6
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, 672 F. App'x 220, 222 (4th
Cir. 2016) (per curiam). 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 v.
Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).
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 F. 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
7
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, it cannot present facts essential to justify its
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),.
If a nonmoving 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 nonmoving 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
8
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 F. 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 F. App'x at 638.
Brown claims that discovery is necessary as it will “allow [him] to acquire materials
…that can be considered by the court in light of what defendants assert…” ECF 19-1 at 10. In
his Affidavit (ECF 19-2), submitted pursuant to Rule 56(d), he seeks to review surveillance
videos, medical protocol manuals, and other documents. Id. at 4. It is not abundantly clear,
however, why Brown believes these documents would be relevant to his ability to respond to
defendants’ responsive pleading and, in light of the court’s subsequent findngs, I see no need to
allow discovery at this time.
Nonetheless, I am satisfied that it is appropriate to address
defendants' Motion as one for summary judgment, because it will facilitate the progression of
this case.
Summary judgment is governed by Fed. R. Civ. P. 56(a), which 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.” See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-24 (1986). 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
9
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). A fact is “material” if it “might affect the outcome of the suit under the governing
law.” Id. at 248. There is a genuine issue as to material fact “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.; see Sharif v. United
Airlines, Inc., 841 F.3d 199, 2014 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir.
2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).
Notably, “[a] 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 nonmoving party must demonstrate a
dispute of material fact so as to preclude the award of summary judgment as a matter of law.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–86 (1986); see Iraq
Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017) (“A court can grant
summary judgment only if, viewing the evidence in the light most favorable to the non-moving
party, the case presents no genuine issues of material fact and the moving party demonstrates
entitlement to judgment as a matter of law.”).
The court must “view the evidence in the light most favorable to...the nonmovant, and
draw all inferences in [his] 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 Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017);
10
Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017); FDIC v. Cashion, 720 F.3d 169,
173 (4th Cir. 2013). In other words, 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 249; accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th
Cir. 2016). Thus, 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 factfinder 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 Brown is self-represented, his submissions are liberally construed. See 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
11
774, 778–79 (4th Cir. 1993), and citing Celotex Corp., 477 U.S. at 323–24).
III. Discussion
Brown alleges a violation of his rights under the Eighth Amendment to the Constitution.
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 v. Gamble, 429 U.S. at 106; see also 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.
Recently, the Fourth Circuit observed that “not all Eighth Amendment violations are the
same:
some constitute ‘deliberate indifference,’ while others constitute ‘excessive force.’”
Thompson v. Virginia, 878 F.3d 89, 97 (4th Cir. 2017) (quoting Whitley v. Albers, 475 U.S. 312,
319-20 (1986)). In general, the deliberate indifference standard applies to cases alleging failure
to safeguard the inmate’s health and safety, including failing to protect inmates from attack,
maintaining inhumane conditions of confinement, and failure to render medical assistance. See
Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 303; Thompson, 878 F.3d at 97. The deliberate
indifference standard consists of a two-pronged test: “(1) the prisoner must be exposed to ‘a
substantial risk of serious harm,’ and (2) the prison official must know of and disregard that
substantial risk to the inmate’s health or safety.” Thompson, 878 F.3d at 97-98 (quoting Farmer,
12
511 U.S. at 834, 837-38).5
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 the
needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). 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). 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)).
Proof of an objectively serious medical condition, however, 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. As the King Court reiterated, 825 F. 3d at 219: “The requisite state of mind is
thus ‘one of deliberate indifference to inmate health or safety.’” (citation omitted). Although this
“‘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.’” Id. (quoting Farmer,
511 U.S. at 835).
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
5
Conversely, in excessive force cases, “courts must determine ‘whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.’” Thompson, 878 F.3d at 98 (quoting Hudson v. McMillian, 503 U.S. 1, 6-7
(1992)).
13
inmate's serious medical condition and the excessive risk posed by the official's action or
inaction.” Lightsey, 775 F.3d at 178. In other words, deliberate indifference requires a showing
that the defendant disregarded a substantial risk of harm to the prisoner. Young v. City of Mt.
Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001).
The subjective component requires “subjective recklessness” in the face of the serious
medical condition. See Farmer, 511 U.S. at 839-40. “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). As the Farmer Court explained,
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.”
Farmer, 511 U.S. at 837. 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). But, 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.
As indicated, the Fourth Circuit has characterized the applicable standard as an
“exacting” one. Lightsey, 775 F.3d at 178. Deliberate indifference “is a higher standard for
culpability than mere negligence or even civil recklessness, and as a consequence, many acts or
omissions that would constitute medical malpractice will not rise to the level of deliberate
indifference.”
Id.; Grayson v. Peed, 195 F.3d 692, 695-96 (4th Cir. 1999) (“Deliberate
indifference is a very high standard—a showing of mere negligence will not meet it ... [T]he
14
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.”). Therefore, mere negligence or
malpractice does not rise to a constitutional level. Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir.
1975); Donlan v. Smith, 662 F. Supp. 352, 361 (D. Md. 1986) (citing Estelle v. Gamble, supra,
429 U.S. at 106). Moreover, in a case involving a claim of deliberate indifference to a serious
medical need, the inmate must show a “significant injury.” Danser v. Stansberry, 772 F.3d 340,
346 n.8 (4th Cir. 2014).
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). A
plaintiff can meet the subjective knowledge requirement through direct evidence of a prison
official's actual knowledge or 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 v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (quoting Farmer, 511
U.S. at 842). In Scinto, the Fourth Circuit said, 841 F.3d at 226:
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 842 114
S.Ct 1970). 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, 114 S.Ct. 1970. However, even
officials who acted with deliberate indifference may be “free from liability if they
responded reasonably to the risk.” Farmer, 511 U.S. at 844.
15
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 ultimately was not averted.”
Farmer, 511 U.S. at 844. 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 taken)).
The existence of factual issues "that properly can be resolved only by a finder of fact
because they may not reasonably be resolved in favor of either party,@ precludes the entry of
summary judgment. See Anderson, 477 U.S. at 250 (ACredibility determinations ... are jury
functions, not those of a judge....@). Further, if the actions of defendants occurred in the manner
alleged by plaintiff, qualified immunity would not apply.
Here, there are genuine disputes of material fact regarding the authenticity of Brown’s
medical assignment order, as well as how and what information was communicated to
defendants regarding Brown’s bunk assignment. Brown’s Opposition has adequately refuted
defendants’ filings, so as to put these facts in dispute. Such disputes must be resolved by the
trier of fact.
IV. Conclusion
For the aforementioned reasons, defendants' Motion, construed as a motion for summary
judgment, will be DENIED. Brown shall be granted the appointment of counsel.
A separate Order follows.
Date: February 21, 2018
______/s/_______________________
Ellen L. Hollander
United States District Judge
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