Commock v. LT. Bunn

Filing 18

MEMORANDUM OPINION. Signed by District Judge Ellen Lipton Hollander on 6/4/2024. (c/m 6/5/24) (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DWAYNE STEPHEN COMMOCK,
Plaintiff,
v.

Civil Action No.: ELH-23-1088

LT. BUNN,
Defendant.

MEMORANDUM OPINION
Plaintiff Dwayne Stephen Commock is a Maryland prisoner confined at North Branch
Correctional Institution. Pursuant to 42 U.S.C. § 1983, Commock filed suit against defendant Lt.
W. Bunn, claiming he used excessive force against plaintiff while he was housed at Jessup
Correctional Institution (“JCI”), in violation of the Eighth Amendment. ECF 1.1
On December 15, 2023, the Court dismissed the Complaint against Bunn in his official
capacity but otherwise denied his motion to dismiss. ECF 15. Bunn was directed to respond to the
Complaint. Id. On January 10, 2024, he moved to dismiss, asserting that the Complaint fails to
state a claim for relief. ECF 16. It is supported by a memorandum (ECF 16-1) (collectively, the
“Motion”) and exhibits.
Commock was informed by the Court, pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), of his right to respond and that his failure to file an opposition to Bunn’s Motion
could result in dismissal of the complaint. ECF 17. To date, Commock has not filed a response.

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ECF 3.

Plaintiff also sued JCI. ECF 1. However, I previously dismissed the suit against JCI. See

Upon review of the Motion and applicable law, the Court deems a hearing unnecessary.
See Local Rule 105.6. (D. Md. 2023). For reasons that follow, I will deny Bunn’s Motion.
I.

Allegations

In the Memorandum Opinion issued December 15, 2023 (ECF 14), I summarized the
factual background of the case and Commock’s allegations. I said, id. at 2:
Commock alleges that on the evening of January 13, 2023, while he was housed at
JCI, he was maced in his cell and then Lt. Bunn made an illegal cell extraction in
cell 620 in Building B. ECF 1 at 4, 5. Commock states that while the power was
out he was handcuffed and then assaulted by Bunn, who punched him in his head.
Id. He states that he needed pain medication following the incident and that the
mace made him “really sick.” Id. Commock seeks $1,000,000 in damages. Id.
Furthermore, Commock’s claim was the subject of an ongoing Intelligence and
Investigative Division (“IID”) investigation. Id. at 18. Therefore, he was unable to exhaust
administrative remedies. Id.
II.

Standard of Review

A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss
under Rule 12(b)(6). Nadendla v. WakeMed, 24 F.4th 299, 304–05 (4th Cir. 2022); Fessler v. Int'l
Bus. Machines Corp., 959 F.3d 146, 152 (4th Cir. 2020); In re Birmingham, 846 F.3d 88, 92 (4th
Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165–66 (4th Cir. 2016); McBurney v.
Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff’d sub nom., McBurney v. Young, 569 U.S. 221
(2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion
constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the
complaint fails as a matter of law “to state a claim upon which relief can be granted.” See
Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005) (citing Mylan Lab'ys, Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); Ibarra v. United States, 120 F.3d 472, 473 (4th Cir.
1997).
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Whether a complaint states a claim for relief is assessed by reference to the pleading
requirements of Fed. R. Civ. P. 8(a)(2). See Migdal v. Rowe Price-Fleming Int'l, Inc., 248 F.3d
321, 325–26 (4th Cir. 2001); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002).
That rule provides that a complaint must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of the rule is to provide
the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts
sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions’ . . .”); see also Fauconier v. Clarke, 966
F.3d 265, 276 (4th Cir. 2020); Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 918
F.3d 312, 317–18 (4th Cir. 2019); Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). To be sure,
a plaintiff need not include “detailed factual allegations” in order to satisfy Fed. R. Civ. P. 8(a)(2).
Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a
complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., 574 U.S. 10, 10 (2014) (per curiam). But, mere “‘naked assertions’ of
wrongdoing” are generally insufficient to state a claim for relief. Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (citation omitted).
In reviewing a Rule 12(b)(6) motion, “a court ‘must accept as true all of the factual
allegations contained in the complaint,’ and must ‘draw all reasonable inferences [from those facts]
in favor of the plaintiff.’” Retfalvi v. United States, 930 F.3d 600, 605 (4th Cir. 2019) (alteration
in Retfalvi) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th

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Cir. 2011)); see Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck
v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015). However, “a court is not required
to accept legal conclusions drawn from the facts.” Retfalvi, 930 F.3d at 605 (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)); see Glassman v. Arlington Cnty., VA, 628 F.3d 140, 146 (4th
Cir. 2010). “A court decides whether [the pleading] standard is met by separating the legal
conclusions from the factual allegations, assuming the truth of only the factual allegations, and
then determining whether those allegations allow the court to reasonably infer” that the plaintiff is
entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th.
Cir. 2011), cert. denied, 566 U.S. 937 (2012).
In connection with a Rule 12(b)(6) motion, courts ordinarily do not “‘resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.’” King v. Rubenstein,
825 F.3d 206, 214 (4th Cir. 2016) (citation omitted); see Bing v. Brivo Sys., LLC, 959 F.3d 605,
616 (4th Cir. 2020). But, “in the relatively rare circumstances where facts sufficient to rule on an
affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss
filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc);
accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009).
Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint,” Richmond,
Fredericksburg & Potomac R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only
applies . . . if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the
complaint.’” Goodman, 494 F.3d at 464 (emphasis in Goodman) (quoting Forst, 4 F.3d at 250).
“Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts
are limited to considering the sufficiency of allegations set forth in the complaint and the
‘documents attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int’l, Ltd.,

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780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours and Co., 637 F.3d at 448).
Ordinarily, the court “may not consider any documents that are outside of the complaint, or not
expressly incorporated therein[.]” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th
Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155 (2015); see
Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007).
But, under limited circumstances, when resolving a Rule 12(b)(6) motion, a court may
consider documents beyond the complaint without converting the motion to dismiss to one for
summary judgment. Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir.
2015). In particular, a court may consider documents that are “explicitly incorporated into the
complaint by reference and those attached to the complaint as exhibits.” Goines, 822 F.3d at 166
(citation omitted); see also Six v. Generations Fed. Credit Union, 891 F.3d 508, 512 (4th Cir.
2018); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); U.S. ex rel. Oberg
v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014); Am.
Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied, 543
U.S. 979 (2004); Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999).
However, “before treating the contents of an attached or incorporated document as true,
the district court should consider the nature of the document and why the plaintiff attached it.”
Goines, 822 F.3d at 167. “When the plaintiff attaches or incorporates a document upon which his
claim is based, or when the complaint otherwise shows that the plaintiff has adopted the contents
of the document, crediting the document over conflicting allegations in the complaint is proper.”
Id. Conversely, “where the plaintiff attaches or incorporates a document for purposes other than
the truthfulness of the document, it is inappropriate to treat the contents of that document as true.”
Id.

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A court may also “consider a document submitted by the movant that [is] not attached to
or expressly incorporated in a complaint, so long as the document was integral to the complaint
and there is no dispute about the document’s authenticity.” Goines, 822 F.3d at 166 (citations
omitted); see also Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert. denied,
583 U.S. 1044, 138 S. Ct. 558 (2017); U.S. ex rel. Oberg, 745 F.3d at 136; Kensington Volunteer
Fire Dep’t, Inc. v. Montgomery Cnty., Md., 684 F.3d 462, 467 (4th Cir. 2012). To be “integral,”
a document must be one “that by its ‘very existence, and not the mere information it contains,
gives rise to the legal rights asserted.’” Chesapeake Bay Found., Inc. v. Severstal Sparrows Point,
LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011) (citation omitted) (emphasis in original). See also
Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of
the pleading for all purposes.”).
Because Commock is self-represented, his submissions are liberally construed.

See

Erickson v. Pardus, 551 U.S. 89, 94 (2007); see Fed. R. Civ. P. 8(f) (“All pleadings shall be so
construed as to do substantial justice”); see also Haines v. Kerner, 404 U.S. 519, 520 (1972)
(stating that claims of self-represented litigants are held “to less stringent standards than formal
pleadings drafted by lawyers”); accord Bala v. Commonwealth of Virginia Dep't of Conservation
& Recreation, 532 F. App’x 332, 334 (4th Cir. 2013). 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 v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 526
(4th Cir. 2003) (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778–
79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)).

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III.

Discussion

Bunn seeks dismissal under Federal Rule of Civil Procedure 12(b)(6). ECF 16. He argues
that Commock has failed to state a claim for relief, asserting that the Complaint contains only
conclusory allegations. ECF 16-1 at 3. Bunn points to Commock’s allegation that he was
“assaulted” during a cell extraction as insufficiently to constitute an Eighth Amendment claim.
Id.; see ECF 1 at 5. Bunn ignores Commock’s detailed complaints that he was maced and punched
in the face by Bunn while he was handcuffed. ECF 1 at 4, 5. Regardless, Bunn argues that his use
of mace was justified, citing as evidence the administrative grievance (“ARP”) Commock filed
regarding the incident.
The Eighth Amendment proscribes “unnecessary and wanton infliction of pain” by virtue
of its guarantee against cruel and unusual punishment. U.S. Const. amend. VIII; Gregg v. Georgia,
428 U.S. 153, 173 (1976); see Estelle v. Gamble, 429 U.S. 97, 102 (1976); King v. Rubenstein,
825 F.3d 206, 218 (4th Cir. 2016). Notably, it “proscribes more than physically barbarous
punishments.” Estelle, 429 U.S. at 103. It also “embodies” the “‘concepts of dignity, civilized
standards, humanity, and decency . . .’” Id. (citation omitted). Thus, the Eighth Amendment
“protects inmates from inhumane treatment and conditions while imprisoned.” Williams v.
Benjamin, 77 F.3d 756, 761 (4th Cir. 1996); cf. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
489 U.S. 189, 199-200 (1989) (stating that when a state holds a person “against his will, the
Constitution imposes upon it a corresponding duty to assume some responsibility for his safety
and general well-being”); Doe 4 v. Shenandoah Valley Juv. Ctr. Comm'n, 985 F.3d 327, 338–39
(4th Cir. 2021).
The Fourth Circuit has observed that “not all Eighth Amendment violations are the same:
some constitute ‘deliberate indifference,’ while others constitute ‘excessive force.’” Thompson v.

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Commonwealth of Virginia, 878 F.3d 89, 97 (4th Cir. 2017) (quoting Whitley v. Albers, 475 U.S.
312, 319–20 (1986)).
“In assessing a claim of excessive force, courts ask ‘whether the officers’ actions are
objectively reasonable in light of the facts and circumstances confronting them.’” Lombardo v.
City of St. Louis, Missouri, 594 U.S. 464, 466 (2021) (per curiam) (quoting Graham v. Connor,
490 U.S. 386, 397 (1989) (some internal quotation marks omitted)); see also Kingsley v.
Hendrickson, 576 U.S. 389 (2015). Notably, “the inquiry ‘requires careful attention to the facts
and circumstances of each particular case.’” Lombardo, 594 U.S. at 467 (quoting Graham, 490
U.S. at 396).
An Eighth Amendment deliberate indifference claim is analyzed under 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 v. Brennan, 511 U.S. 825, 837–38 (1994)); see Heyer v. United
States Bureau of Prisons, 849 F.3d 202, 209 (4th Cir. 2017). The Fourth Circuit has characterized
this standard as an “exacting” one. Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014).
A prisoner’s Eighth Amendment claim of use of excessive force involves both an objective
and a subjective component. Brooks v. Johnson, 924 F.3d 104, 112 (4th Cir. 2019); see Younger
v. Crowder, 79 F.4th 373, 382 (4th Cir. 2023); Moss v. Harwood, 19 F.4th 614, 624 (4th Cir. 2021).
The objective component asks whether the plaintiff was exposed to an objectively “substantial risk
of serious harm.” Farmer, 511 U.S. at 834. But, this “is not a high bar, requiring only something
more than ‘de minimis’ force.” Brooks, 924 F.3d at 112 (quoting Hudson v. McMillian, 503 U.S.
1, 10 (1992)); see also Wilkins v. Gaddy, 559 U.S. 34, 39 (2010) (per curiam). The subjective
component asks whether the officer “‘acted with a sufficiently culpable state of mind.’” Brooks,

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924 F.3d at 112 (citation omitted). In other words, did the officer recognize the risk but ignore it.
Younger, 79 F.4th at 382; see Moss, 19 F.4th at 624. Notably, “this is a demanding standard . . . .”
Brooks, 924 F.3d at 112.
The state of mind is one of “wantonness in the infliction of pain.” Iko v. Shreve, 535 F.3d
225, 239 (4th Cir. 2008). Whether the force used by a prison official was wanton is determined
by inquiring if the “‘force was applied in a good faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.’” Hudson, 503 U.S. at 6 (citation omitted; some
quotation marks omitted). Several factors are pertinent. The court must consider the need for the
application of force; the relationship between that need and the amount of force applied; the extent
of the injury inflicted; the threat to the safety of staff and inmates as reasonably perceived by prison
officials; and any efforts made by prison officials to temper the severity of their response.
Lombardo, 594 U.S. at 467; Kingsley, 576 U.S. at 397; Whitley, 475 U.S. at 321.
At this juncture, the Court generally cannot consider materials outside of the pleadings.
The ARP and related documents, which were attached as exhibits to Bunn’s motion to dismiss,
cannot be considered on a motion to dismiss. The information in the exhibits is not integral to the
Complaint; Bunn relies on them for his defense. See Chesapeake Bay Found., Inc. v. Severstal
Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011).
Liberally construing the allegations in the Complaint, as I must, Commock alleges that
during a cell extraction, while he was restrained in handcuffs and for no reason, Bunn maced and
punched him in the head. ECF 1 at 4. Further, plaintiff asserts that the cell extraction itself was
improper. Id. at 5. These allegations support a claim for use of excessive force, in violation of the
Eighth Amendment.

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IV. Conclusion
For the foregoing reasons, I shall deny Bunn’s motion to dismiss. As this case shall proceed
to discovery, counsel shall be appointed for Commock. A separate Order follows.

June 4, 2024
Date

/s/
Ellen L. Hollander
United States District Judge

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