Mills v. Ghee et al

Filing 54

MEMORANDUM OPINION (c/m to Plaintiff 4/23/12 sat). Signed by Chief Judge Deborah K. Chasanow on 4/23/12. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ALBERT CURTIS MILLS
:
v.

:

Civil Action No. DKC 06-2313

:
BERKELY GHEE, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this prisoner
civil rights case is a motion filed by Defendant Berkely Ghee to
dismiss or, in the alternative, for summary judgment.
52).

(ECF No.

The relevant issues have been briefed and the court now

rules pursuant to Local Rule 105.6, no hearing being deemed
necessary.

For the reasons that follow, Defendant’s motion will

be granted in part and denied in part.
I.

Background
According

to

the

verified

complaint,

Plaintiff

Albert

Curtis Mills was an inmate at the Maryland House of Correction
Annex until November 7, 2005, when he was among a large number
of inmates transferred to the Maryland Correctional Adjustment
Center (“MCAC”).

On that date, Defendant Berkely Ghee and other

correctional officers “came to [Plaintiff’s] cell to put [him]

(ECF No. 1, at 3).1

in restraints for transportation to [MCAC].”

As the officers escorted him to “the recreation room . . . to be
put in full restraint[s],” Officer Ghee “verbal[ly] abuse[d]”
Plaintiff.

(Id.

at

4).

While

placing

Plaintiff

in

full

restraints, Officer Ghee intentionally applied “the waist chain
. . . extremely tight,” resulting in “sharp and excruciating
[pain]

and

breathing.”

restrict[ion]

[of

his]

blood

circulation

and

(Id. at 6).

Plaintiff told the officers “about

this pain and [] circulation and [] breathing abuse,” but they
ignored him.
approximately
(Id.

at

8).

(Id.).
“five

The restraints were not removed until

hours”

Plaintiff

later,
alleges

after

he

that

he

“excruciating pain” in his back ever since.
On

September

1,

2006,

Plaintiff,

arrived
has

at

MCAC.

experienced

(Id. at 9).
proceeding

pro

se,

commenced this action under 42 U.S.C. § 1983, alleging that
Officer

Ghee

and

other

correctional

and

medical

services

defendants violated his constitutional rights by using excessive
force against him, by verbally abusing him, and by denying him
medical

treatment.

service

was

(ECF

initially

No.

1).

effected

All

moved

alternative, for summary judgment.

to

defendants
dismiss

or,

in

(ECF Nos. 27, 43).

court granted those motions on September 15, 2011.

1

upon

whom
the
The

(ECF Nos.

References to page numbers in the complaint are to those
assigned by the court’s electronic case filing system.
2

45, 46).

Notably, Plaintiff’s claims against three unserved

correctional defendants alleged to have “applied his waist chain
too tightly” were summarily dismissed for failure to state a
claim.

(ECF No. 45, at 9).

As to these defendants, the court

explained:
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, [he] does not allege that
[these
officers]
acted
maliciously
or
sadistically to cause him harm.
(Id.).

These allegations were contrasted with those related to

Officer Ghee, who was also unserved at the time of the prior
opinion:
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 malicious intent.
(Id. at 9-10).
sufficient

The court found that Plaintiff had alleged a

excessive

force

claim

against

Officer

Ghee

and

directed the Marshal to effect service upon him.
Officer Ghee was served on or about December 5, 2011, and
filed the pending motion to dismiss or, in the alternative, for

3

summary judgment on January 27, 2012.

(ECF No. 52).

As support

for this motion, he attaches a declaration asserting that he
recalls “a mass transfer of inmates” on or about November 7,
2005, during which he “appl[ied] restraints to several inmates.”
(ECF No. 52-2 ¶ 3).

While he has no specific recollection

regarding whether Plaintiff was among those inmates, he states
that

he

had

“no

escorted”

on

animosity

problem

that

toward

with

any

inmate

occasion

and

that

[Plaintiff]

and

never

[he]

he

has

used

restrained

or

“no

personal

abusive

language

toward him, on the day of the mass transfer or any other day.”
(Id. at ¶¶ 3, 4).
which

he

including

was

Officer Ghee further describes the manner in

trained

waist-chains,

to

apply

and

attests

these restraints in that manner.
Plaintiff

was

advised

“three-piece
that

he

restraints,”

“always”

applied

(Id. at ¶ 5).

by

the

clerk

that

a

potentially

dispositive motion had been filed against him, but failed to
respond.
II.

Standard of Review
Under 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

4

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 “judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”
material

fact

is

genuine

“if

the

A dispute about a

evidence

is

such

that

a

reasonable jury could return a verdict for the nonmoving party.”
Id. at 248.

Thus, “the judge must ask himself not whether he

thinks the evidence unmistakably favors one side or the other
but whether a fair-minded jury could return a verdict for the
[nonmoving party] on the evidence presented.”

Id. at 252.

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 is presented where the nonmoving party fails to
make a sufficient showing on an essential element of his or her
case as to which he or she would have the burden of proof.
Celotex

Corp.

v.

Catrett,

477

U.S.

317,

322–23

See

(1986).

Therefore, on those issues on which the nonmoving party has the

5

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.

A

verified complaint “is the equivalent of an opposing affidavit
for summary judgment purposes, when the allegations contained
therein

are

based

on

personal

knowledge.”

See

Williams

v.

Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the 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

“scintilla” 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 “party 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.

6

See Drewitt v. Pratt, 999

F.2d

774,

(4th

778–79

Cir.

1993)

(quoting

Felty

v.

Graves–

Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).
III. Analysis
A.

Excessive Force

Whether force used by prison officials was excessive is
determined by inquiring as to whether “force was applied in a
good-faith

effort

maliciously

and

to

maintain

sadistically

to

McMillian, 503 U.S. 1, 6-7 (1992).

or

restore

cause

discipline,

harm.”

Hudson

or
v.

The 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

Whitley v. Albers, 475 U.S. 312, 321 (1986).
significant

injury

excessive force.
1175

(2010).

alone

is

not

dispositive

response.

See

The absence of
of

a

claim

of

See Wilkins v. Gaddy, --- U.S. ----, 130 S.Ct.
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

prisoner had the good fortune to escape serious harm.
130 S.Ct. at 1177.

7

the

Wilkens,

Despite the fact that Plaintiff failed to respond to the
instant motion, this case is, essentially, in the same posture
as it was when the court determined, sua sponte, that Plaintiff
had sufficiently stated an excessive force claim against Officer
Ghee.

That is so because Plaintiff signed his complaint under

penalty of perjury, pursuant to 28 U.S.C. § 1746.

In this

circuit, “[a] prisoner proceeding pro se in an action filed
under § 1983 may rely on the detailed factual allegations in his
verified pleadings to withstand a motion for summary judgment
supported by affidavits containing a conflicting version of the
facts.”

See DePaola v. Taylor, Civil Action No. 7:10cv000398,

2011 WL 2445859, at *5 (W.D.Va. June 15, 2011) (citing Davis v.
Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979)).
In

his

motion

for

summary

judgment,

Officer

Ghee

does

little more than set forth a conflicting version of facts to
those presented by Plaintiff in his verified complaint.
court
stated

previously
an

declaration

determined

excessive
is

merely

that

Plaintiff

force

claim,

to

establish

the

has

effect

that

there

As the

sufficiently

of
is

dispute of material fact as to the relevant issues.

Defendant’s
a

genuine

Under these

circumstances, Officer Ghee is not entitled to summary judgment.
Further, if the actions of the defendant occurred in the manner
alleged by Plaintiff, qualified immunity would not apply.

See

Buonocore v. Harris, 65 F.3d 347, 359-60 (4th Cir. 1995) (“If a
8

plaintiff

has

alleged

a

clearly

established

right,

summary

judgment on qualified immunity grounds is improper as long as
there remains any material factual dispute regarding the actual
conduct of the defendants.”).
B.

Verbal Abuse

Plaintiff’s verbal harassment claim does not fare as well.
“[N]ot

all

undesirable

by

state

actors

is

Pink v. Lester, 52 F.3d 73, 75 (4th Cir.

unconstitutional.”
1995).

behavior

Verbal abuse of inmates by guards, including aggravating

language, without more, does not state a 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 Officer Ghee verbally
harassed him fails to state a claim.
IV.

Conclusion
For the foregoing reasons, Officer Ghee’s motion to dismiss

or, in the alternative, for summary judgment will be granted in
part

and

Plaintiff.

denied

in

part.

Counsel

shall

be

appointed

for

A separate order will follow.
________/s/__________________
DEBORAH K. CHASANOW
United States District Judge
9