Mills v. Ghee et al
Filing
45
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/14/2011. (rss, Deputy Clerk) Modified on 9/15/2011 (c/m 9/15/11 rs) (rss, Deputy Clerk).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ALBERT CURTIS MILLS,
Plaintiff,
*
*
v.
CIVIL ACTION NO. DKC-06-2313
*
BERKELY GHEE, et al.,
Defendants.
*
***
MEMORANDUM OPINION
Pending are the motions of Medical Defendants Correctional Medical Services, Inc. and
Rick Leonard (ECF No. 27), and Correctional Defendants Lehrman Dotson, Wayne Hill, James
Smith, and Carlton Thompson (ECF No. 43) to dismiss or for summary judgment.1 Plaintiff has not
responded.2 Upon review of papers and exhibits filed, the court finds an oral hearing in this matter
unnecessary. See Local Rule 105.6 (D. Md. 2011).
Background
In early November of 2005, a mass movement of prisoners from the Maryland House of
Correction (now known as Jessup Correctional Institution or “JCI”) to the Maryland Correctional
Adjustment Center (“MCAC”) occurred. ECF No. 43, Ex. A. Plaintiff was part of the movement.
He alleges that on November 7, 2005, during the transfer, he was verbally abused by Defendant
Ghee. He further alleges that Ghee applied his waist chains too tightly causing injury to his back.
1
The Complaint has not been served upon Defendants Ghee, Hicks, Brown, Nurse Rose Doe, or Nurse Yami
Doe. For the reasons that follow, even if the Complaint had properly been served upon Defendants Hicks, Brown, Rose
Doe and Yami Doe, Plaintiff’s complaint against them would be subject to dismissal.
2
Pursuant to the dictates of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), on February 4, 2011 and
June 22, 2011, Plaintiff was notified that Defendants had filed dispositive motions, the granting of which could result in
the dismissal of his action. ECF Nos. 28 & 44. Plaintiff was informed that he was entitled to file materials in opposition
to that motion within seventeen (17) days and that his failure to file a timely or responsive pleading or to illustrate, by
affidavit or the like, a genuine dispute of material fact, could result in the dismissal of his case or in the entry of summary
judgment without further notice of the court. Id.
Plaintiff states that Defendants Faison, Thompson, Smith and Hill did nothing to stop the verbal
abuse or ease the restraints. Plaintiff further alleges that once housed at MCAC he was denied
adequate medical care for the injury to his back.
Lastly, Plaintiff states that while housed at MCAC, on three separate occasions, his waist
chains were applied too tightly by Defendants Mackey, Brown and Hicks causing further injury to
his back. Plaintiff claims Warden Dotson was aware of this but failed to take any corrective action.
ECF No. 1.
Standard of Review
Under revised Fed. R. Civ. P. 56(a):
A party may move for summary judgment, identifying each claim or defense--or the
part of each claim or defense--on which summary judgment is sought. 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. The court
should state on the record the reasons for granting or denying the motion.
Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure
when there is no genuine issue as to any material fact, and the moving party is plainly entitled to
judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986) the Supreme Court explained that in considering a motion for summary judgment, the
Ajudge=s function is not himself to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.@ A dispute about a material fact is genuine Aif
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.@ Id. at
248. Thus, Athe judge must ask himself not whether he thinks the evidence unmistakably favors one
side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on
the evidence presented.@ Id. at 252.
2
The moving party bears the burden of showing that there is no genuine issue as to any
material fact. No genuine issue of material fact exists if the nonmoving party fails to make a
sufficient showing on an essential element of his or her case as to which he or she would have the
burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, on those
issues on which the nonmoving party has the burden of proof, it is his or her responsibility to
confront the summary judgment motion with an affidavit or other similar evidence showing that
there is a genuine issue for trial.
In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn
therefrom Ain a light most favorable to the party opposing the motion.@ Matsushita Elec. Indus. Co.
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369
U.S. 654, 655 (1962)); see also E.E.O.C. v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir.
2005). The mere existence of a Ascintilla@of evidence in support of the non-moving party=s case is
not sufficient to preclude an order granting summary judgment. See Anderson, 477 U.S. at 252.
This court has previously held that a Aparty cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.@ Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.
Md. 2001) (citation omitted). Indeed, the court has an affirmative obligation to prevent factually
unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th
Cir. 1993) (quoting Felty v. Graves-Humpreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).
Discussion
1.
Facts
According to Correctional Defendants, on November 7, 2005, Defendant Thompson was
supervising the move of several inmates from JCI Special Housing Unit. Defendant James Smith was
the Warden of JCI at this time and Defendant Hill was the Assistant Warden. Smith and Hill oversaw
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the general operation of the mass transfer. Each inmate was removed from the cell individually,
escorted to the dayroom, strip-searched, placed in mechanical restraints, and escorted to a waiting
bus. Thompson had no physical contact with any inmate throughout the transfer process, nor did he
participate in escorting any inmate throughout the process. He avers that he did not hear any officer
verbally abuse an inmate or see any officer physically abuse an inmate. Thompson further avers that
at no time did Plaintiff speak to him regarding his restraints. Thompson states that, had an inmate
made a complaint, the restraints would have been checked immediately and if they were too tight an
officer would have been directed to reapply them. Id., Ex. A.
Smith avers that he and Hill were in the vicinity of the transporting vehicles as inmates were
brought to them. Smith does not recall Plaintiff speaking to him or Hill. He recalls several inmates
complaining about their restraints. He states that before boarding the bus all inmates had their
restraints checked by the escorting officers from the Central Transportation Unit (“CTU”). Smith
avers that he heard no inmate complain about his restraints after the CTU officers made any necessary
readjustment to the restraints. Smith further avers that if Plaintiff had complained, it was the
responsibility of the CTU officers to ensure that he was properly restrained for transport to MCAC.
Id., Ex. B.
Defendant Lehrman Dotson was the Warden of MCAC during Plaintiff’s incarceration. He
does not recall receiving a letter from Plaintiff concerning application of restraints at MCAC. Dotson
avers that had he received such a letter he would have assigned the complaint to a staff member for
investigation. If Plaintiff had made the complaint through the Administrative Remedy Process
(“ARP”) it would have been routed to the ARP Coordinator and assigned to a staff member for
investigation. Id., Ex. C. Plaintiff filed numerous ARPs while housed at MCAC, only one of which
4
concerned the application of waist chains.3 In that complaint he alleged Defendant Mackey applied a
waist chain too tightly which caused him pain. Id., Ex. D, p. 167-73.
According to the Medical Defendants, on November 11 and 16, 2005, Plaintiff filed sick call
slips complaining of back pain which he claimed began on November 7, 2005.
Plaintiff was
evaluated by Cherelle Reddick-Lane, M.D. on November 22, 2005, because he was on a hunger
strike. At that time, Plaintiff offered no complaints regarding his back. ECF No. 27, Ex. B & C, p. 14.
Plaintiff was next evaluated on December 6, 2005, by a nurse who noted Plaintiff claimed his
back pain was caused by a waist chain that had been applied too tightly during his transfer to MCAC.
Plaintiff was given Tylenol and an analgesic balm to apply to his back. Plaintiff did not complain
again of back pain until he filed a sick call slip on December 20, 2005. He stated he was in constant
pain and unable to sleep. A nurse evaluated Plaintiff on January 3, 2006, and gave him one dose of
Motrin, aspirin to take every four to sick hours as needed, and analgesic balm to apply to his back.
He was advised to return to the dispensary if his pain did not improve. Id., p. 3, 5.
Plaintiff next submitted a sick call sip on January 18, 2006, complaining of back pain. He
advised the nurse who evaluated him that he experienced more pain on sitting and less pain while
lying down. He denied that the pain radiated down his legs. The nurse provided Plaintiff one dose of
Motrin as well as four tablets of aspirin to take as needed. Id., p. 6
Plaintiff did not complain again of back pain until April 18, 2006, when he submitted a sick
call slip complaining of seizures and constant back pain. He was evaluated by a nurse on May 2,
2006, and stated that he had been in constant back pain since November, 2005. Plaintiff said he was
3
Plaintiff filed several ARPs concerning Ghee’s interaction with him during the transfer. ECF No. 43, Ex. D.
5
not in acute pain and the pain worsened when he lay down. The nurse gave him one dose of Motrin
and two tablets of Tylenol to take as needed. Id., p. 7.
Plaintiff did not again complain of back pain until he submitted a sick call slip on September
26, 2006. He attributed his back pain to the use of waist chain restraints on November 7, 2005, and
sought a doctor’s order discontinuing any future use of waist chains. The nurse who evaluated
Plaintiff advised him that the use of waist chain restraints was a matter of security and out of the
control of medical staff, and also advised Plaintiff that he had no outstanding conditions which would
limit the use of such a restraint. The nurse evaluated Plaintiff and observed his gait was steady. She
instructed him on proper body mechanics and gave him six Tylenol tablets to use as needed. Plaintiff
was advised to return to the medical unit if his condition did not improve. Id., p. 8.
Plaintiff was evaluated by Dr. Reddick-Lane on November 22, 2006, due to his complaint of
inhaling mace on October 14, 2006. During the evaluation Plaintiff advised Dr. Reddick-Lane that he
suffered from chronic back pain. Upon examination Dr. Reddick-Lane noted Plaintiff had some
tenderness to the touch around his spine but not directly over his spine. Dr. Reddick-Lane prescribed
muscle rub for Plaintiff to apply to his back. Plaintiff offered no further complaints of back pain
while incarcerated at MCAC. He was transferred from MCAC on or about January 6, 2007. Id., p. 912.
2.
Legal Analysis
A.
Respondeat Superior
As a fundamental element of § 1983 liability, Plaintiff must show that the named Defendants
were involved in the alleged deprivation of his constitutional rights. It is well established that the
doctrine of respondeat superior does not apply in § 1983 claims. See Love-Lane v. Martin, 355 F.3d
766, 782 (4th Cir.2004) (no respondeat superior liability under § 1983); see also Trulock v. Freeh,
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275 F.3d 391, 402 (4th Cir. 2001). Liability of supervisory officials “is not based on ordinary
principles of respondeat superior, but rather is premised on ‘a recognition that supervisory
indifference or tacit authorization of subordinates' misconduct may be a causative factor in the
constitutional injuries they inflict on those committed to their care.’ ” Baynard v. Malone, 268 F.3d
228, 235 (4th Cir.2001), citing Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984). Supervisory
liability under § 1983 must be supported with evidence that: (1) the supervisor had actual or
constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and
unreasonable risk of constitutional injury to citizens like the plaintiff; (2) the supervisor's response to
the knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the
alleged offensive practices; and (3) there was an affirmative causal link between the supervisor's
inaction and the particular constitutional injury suffered by the plaintiff. See Shaw v. Stroud, 13 F.3d
791, 799 (4th Cir.1994).
Plaintiff has pointed to no action or inaction on the part of Defendants Correctional Medical
Services, Inc. (“CMS”) and Richard Leonard that resulted in a constitutional injury.4 See Vinnedge v.
Gibbs, 550 F.2d 926, 928-29 (4th Cir. 1997) (doctrine of respondeat superior does not apply to 42
U.S.C. ' 1983 actions). It remains uncontroverted that CMS and Leonard had no direct involvement
in Plaintiff=s medical treatment or any aspect of his health care.
Plaintiff’s claims against Dotson, Hill, Smith, Faison, and Thompson also are subject to
dismissal. Plaintiff claims that each Defendant was aware of the improper use of restraints against
4
Richard Leonard served as the Health Services Administrator for the Jessup Region from July 1, 2005- through
January 23, 2006. From January 24, 2006 through later 2008, he served as a registered nurse for CMS in the Jessup
Region. MCAC is not located in the Jessup Region but rather is in the Baltimore Region. Leonard’s role as HSA for the
Jessup Region at the time of Plaintiff’s transfer was purely administrative. He did not provide any care to Plaintiff, nor
was he responsible for providing any medical care to Plaintiff or overseeing the medical care of inmates housed in the
Baltimore Region. ECF No. 27, Ex. A.
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him and as supervisors failed to act. To the contrary, Hill, Smith, and Thompson aver that they were
not aware of any abuse of Plaintiff and had they been aware that Plaintiff’s waist chains were applied
improperly they would have taken corrective action. Further, Smith avers that in general any inmate
who complained that his restraints were applied improperly during the mass transfer of inmates had
his restraints checked by the CTU prior to the transfer and restraints were adjusted. He further avers
that after restraints were checked he heard no inmates continue to complain. Ultimately, the
responsibility for the proper placement of the restraints on the inmates subject to the mass movement
rested with the CTU, and not with any of the named supervisory Defendants.
Additionally, Dotson avers that any complaint regarding improper use of restraints forwarded
to him while he was the Warden at MCAC would have been investigated. The record evidence
demonstrates that Plaintiff filed only one complaint regarding the use of restraints while housed at
MCAC. The claim was investigated and found to be without merit. ECF No. 43, Ex. D, p. 167-173.
Given the foregoing, the court cannot find that any of the named correctional supervisors’
response was so inadequate as to show deliberate indifference to or tacit authorization of the alleged
improper use of restraints.
B.
Excessive Force
Whether force used by prison officials was excessive is determined by inquiring if Aforce was
applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm.@ Hudson v. McMillian, 503 U. S. 1, 6-7 (1992). This court must look at the need for
application of force; the relationship between that need and the amount of force applied; the extent of
the injury inflicted; the extent of the threat to the safety of staff and inmates as reasonably perceived
by prison officials; and any efforts made to temper the severity of the response. See Whitley v.
Albers, 475 U. S. 312, 321 (1986). The absence of significant injury alone is not dispositive of a
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claim of excessive force. See Wilkens v. Gaddy, __ U.S. __, 130 S. Ct. 1175 (2010). The extent of
injury incurred is one factor indicative of whether or not the force used was necessary in a particular
situation, but if force is applied maliciously and sadistically liability is not avoided simply because
the prisoner had the good fortune to escape serious harm. Wilkens, 130 S. Ct. at 1177.
While Defendants Hicks, Mackey and Brown have either not been properly served with the
complaint or have failed to respond to same,5 Plaintiff’s claims against these Defendants are subject
to dismissal. Plaintiff has simply and baldly alleged that each Defendant, on one separate occasion,
applied his waist chain too tightly. Plaintiff does not indicate the circumstances surrounding the
application of the restraint or whether he advised the officer the restraints were applied too tightly.
Most importantly, giving Plaintiff’s complaint a liberal construction, Plaintiff does not allege that
Mackey, Brown, or Hicks acted maliciously or sadistically to cause him harm. To the contrary,
Plaintiff alleges simply that the Defendants applied the restraints too tightly which caused him harm.
He does not allege that they intended to do so. Accordingly, Plaintiff’s claims against Mackey,
Brown and Hicks shall be dismissed.
Plaintiff alleges that Defendant Ghee used excessive force against him by applying the waist
chains too tightly in an effort to “abuse” him. He states that he advised Ghee the waist chains were
too tight and he would not resist the application of the restraints. He further claims that Ghee was
verbally abusive to him during the application of the waist chains as further evidence of Ghee’s
5
Counsel for Correctional Defendants was directed to provide the last known address for Defendants under seal
for service of the complaint upon them by the United States Marshal Service. The summonses for Mackey and Faison
were returned on May 3, 2011, indicating service was effected. ECF Nos. 38 & 39. The summonses for Brown, Ghee,
and Hicks, issued January 20 and 31, 2011 (ECF Nos. 23 & 25), have not been returned by the United States Marshal.
The United States Marshal shall be directed to advise the court what, if any, efforts were made to serve those Defendants,
and the results of those efforts.
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malicious intent. In a matter of record prepared in response to Plaintiff’s administrative remedy
request filed regarding the application of the restraints by Ghee, Ghee provided a statement to the
investigation officer indicating that he “did not apply restraints to Inmate Albert Mills 173-446 extra
tight. This inmate never complained of discomfort to me.” ECF No. 43, Ex. D, p. 45. Plaintiff has
stated a claim against Ghee which cannot be resolved based on the evidence before the court. Once
the Marshal reports on the efforts to serve him, it can be determined whether to proceed.
C.
Verbal Abuse
A[N]ot all undesirable behavior by state actors is unconstitutional.@ Pink v. Lester, 52 F.3d
73, 75 (4th Cir. 1995). Verbal abuse of inmates by guards, including aggravating language, without
more, states no constitutional claim. See Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)
(sheriff laughed at inmate and threatened to hang him); Blades v. Schuetzle, 302 F.3d 801, 805 (8th
Cir. 2002) (racial slurs); Cole v. Cole,633 F.2d 1083, 1091 (4th Cir. 1980) (no harm alleged from
claimed verbal harassment and abuse by police officer). Accordingly, Plaintiff’s allegation that
Defendant Ghee verbally harassed him and Defendant Faison failed to intervene fails to state a claim.
D.
Medical Claims
In order to state a claim for denial of medical care, a plaintiff must demonstrate that the
actions of the defendants or their failure to act amounted to deliberate indifference to a serious
medical need. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference 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 to either provide it or ensure the needed care was available. See Farmer v. Brennan, 511 U.S.
825, 837 (1994).
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As noted above, 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). Proof of an objectively serious medical condition, however, does
not end the inquiry.
The subjective component requires Asubjective recklessness@ in the face of the serious medical
condition. Farmer, 511 U.S. at 839B 40. ATrue 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).
AActual 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. Virginia Beach
Correctional Center, 58 F. 3d 101, 105 (4th Cir. 1995), quoting Farmer, 511 U.S. at 844. If the
requisite subjective knowledge is established, an official may avoid liability Aif [he] responded
reasonably to the risk, even if the harm was not ultimately 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. 2001), 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).
A[A]ny negligence or malpractice on the part of . . . doctors in missing [a] diagnosis does not,
by itself, support an inference of deliberate indifference.@ Johnson v. Quinones, 145 F. 3d 164, 166
(4th Cir. 1998). Without evidence that a doctor linked presence of symptoms with a diagnosis of a
serious medical condition, the subjective knowledge required for Eighth Amendment liability is not
present. Id. at 169 (actions inconsistent with an effort to hide a serious medical condition refute
presence of doctor=s subjective knowledge).
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Had Plaintiff named proper parties, or Defendants “Nurse Rose Doe” and “Nurse Yami Doe”
been properly served, his complaint nonetheless would be subject to dismissal. The record shows
that Plaintiff received evaluation and conservative treatment for his back pain while housed at
MCAC. Disagreement with the course of treatment does not constitute an Eighth Amendment
deprivation and would set out, at best, a claim of medical negligence which is not actionable under 42
U.S.C. § 1983.
Conclusion
For the aforementioned reasons, Defendants= Motions, construed as motions for summary
judgment, shall be granted. Plaintiff’s complaint against Defendants Faison, Hicks, Mackey, Brown,
Nurse Rose Doe, and Nurse Yami Doe shall be dismissed. A separate Order follows.
Date:
September 14, 2011
/s/
DEBORAH K. CHASANOW
United States District Judge
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