Smith v. Filbert et al
Filing
94
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 6/6/11. (apls, Deputy Clerk)(c/m 6/7/11)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHAEL SMITH
*
Plaintiff
*
v
*
WILLIAM FILBERT, et al.
*
Defendants
Civil Action No. PJM-10-653
*
***
MEMORANDUM OPINION
Pending in the above-captioned case are Plaintiff’s non-dispositive motions (ECF No. 53,
61, 78 and 85) and Motions for Summary Judgment (ECF No. 62, 70, and 77). Also pending is a
Motion to Dismiss or for Summary Judgment filed on behalf of Defendants Alston, Anderson,
Darden, Lygon, Sacchet, and Thomas (ECF No. 56). Plaintiff’s Motion for Summary Judgment
or Default is opposed by Defendant Crew (ECF No. 90).
Plaintiff opposes the Motion to
Dismiss or for Summary Judgment (ECF No. 60).
Non-Dispositive Matters
Plaintiff filed a Motion for Appropriate Relief (ECF No. 53) opposing a Motion to
Dismiss filed by Assistant Warden Naomi Williams (ECF No. 45). Plaintiff states that he
technically did not name Williams as a Defendant, but wished to err on the side of caution and
oppose her dismissal from the case. The Motion to Dismiss (ECF No. 45) was denied without
prejudice by this Court on October 15, 2010, and in light of Plaintiff’s admission that Naomi
Williams was not involved in the events described in the Complaint, she was dismissed without
prejudice from the case. The Court also granted Plaintiff’s Motion to Clarify Defendants (ECF
No. 47) so that the appropriate party could be located and served. Thus, the Motion for
Appropriate Relief (ECF No. 53) shall be denied as moot.
In his Motion to Correct Defendants (ECF No. 61), Plaintiff seeks to substitute Warden
Rouse for Warden Sacchet because Sacchet was not the warden of Maryland Correctional
Institution at Hagerstown (MCIH) when Plaintiff was confined there.
There has been no
opposition to the Motion to Correct Defendants; accordingly, Plaintiff’s motion will be granted.
Rouse will be added as a Defendant and counsel will be asked to accept service of the Complaint
on her behalf.
Plaintiff filed a Motion for Appropriate Relief (ECF No. 85) on March 29, 2011,
asserting that Filbert should be required to identify the person Plaintiff refers to as “Major
Williams” in the Complaint. Plaintiff states that since Filbert asserts Willie Jones is not the
person referred to in the Complaint and since Filbert does not assert a lack of knowledge as to
the true identity of “Major Williams,” he should be required to provide the name of that
individual. Plaintiff further asserts that Filbert did not rebut his assertions that another staff
member was present on the day in question. The motion is in the nature of a discovery request
and will be denied. To the extent Filbert knows the identity of the other person present as
described in the Complaint, he will be required to reveal the identity of that person during
discovery when it is ordered by this Court.
Background
On March 15, 2007, Plaintiff was returning to the Baltimore City Detention Center
(BCDC) from a scheduled court appearance at Circuit Court for Baltimore City. ECF No. 1 at p.
4. Plaintiff alleges two of the inmates with whom he was transported were known gang
members. One of the men Plaintiff characterizes as a gang member, Brian Medlin, engaged in a
secretive conversation with Officer Crew prior to getting on the transportation van. Plaintiff
states he witnessed Crew “slip” something to Medlin. Id. On the drive back to BCDC, Medlin
2
unlocked his restraints with two different keys, produced a home-made knife, and began hitting
and stabbing Plaintiff repeatedly.1
Plaintiff claims he was escorted to the BCDC infirmary where he made repeated pleas to
Warden Filbert to be immediately transferred to a hospital. Plaintiff claims Warden Filbert was
in the infirmary the entire time and he got “annoyed” with him due to his emphatic requests to be
hospitalized. ECF No. 5. Plaintiff states that he was placed in isolation without medical attention
by Filbert, who justified putting him in isolation by claiming Plaintiff refused medical care.
Plaintiff claims he suffered contusions, deep lacerations, stab wounds and head trauma as a result
of the assault. While in isolation, Plaintiff was found unconscious at approximately 12:30 a.m.
and was rushed to Johns Hopkins Hospital Emergency Room for treatment of multiple stab
wounds which required sutures. ECF No. 1 at Ex. A, p. 4.
On March 20, 2007, Plaintiff was transferred from BCDC to Maryland Reception
Diagnostic Classification Center (MRDCC) where he claims he made “any and all staff” aware
of the existing threat to his safety in the form of a contract on his life. ECF No. 1 at p. 5.
Plaintiff states he requested placement on protective custody, but he was not so assigned.
On March 25, 2007, Plaintiff filed an administrative remedy procedure complaint (ARP)
detailing the facts of his assault at BCDC and requesting placement on protective custody. On
March 27, 2007, Plaintiff met with Ms. Darden, a classification worker, and described the assault
he suffered, explained there was a “hit” placed on Plaintiff by Officer Crew, and again requested
placement on protective custody. During the meeting Darden brought Lt. Thomas into the room
to speak with Plaintiff and Lt. Thomas placed Plaintiff on administrative segregation. ECF No. 1
at pp. 5 – 6.
1
Plaintiff claims the whole incident was “captured on video, as a MPT Television crew was on-site filming the
transportation of inmates.” He states the response team that was being filmed stopped the transport van and
intervened in the assault. ECF No. 1.
3
On March 28, 2007, Plaintiff met with another case manager, Ms. Alston. Plaintiff again
described the details of his assault and requested placement on protective custody. Alston
recommended that Plaintiff instead remain on administrative segregation. On April 2, 2007,
Plaintiff appealed the decision not to place him on protective custody to the Inmate Grievance
Office (IGO). Plaintiff states that although his appeal was received by the IGO on April 10,
2007, he did not receive a response acknowledging his correspondence until June 13, 2007.
On April 4, 2007, Plaintiff was transferred to Maryland Correctional Institution at
Hagerstown (MCIH). When he arrived Plaintiff explained to the receiving officer that he had
been assaulted at BCDC, that a hit had been placed on his life, and that he wanted to go on
protective custody. Plaintiff was told to take his concerns up with classification and was sent
into general population the next day. ECF No. 1 at p. 6.
On April 5, 2007, less than 24 hours after Plaintiff arrived at MCIH, he was viciously
assaulted in the dormitory area by a group of unknown individuals. Plaintiff was taken to the
hospital for his injuries. At that time Plaintiff explained to Lt. Anderson what had happened to
him previously and Anderson placed Plaintiff on administrative segregation. On April 6, 2007,
Plaintiff wrote a letter complaining to the Warden of MCIH and requesting to be placed on
protective custody.
On April 12, 2007, Plaintiff met with Mr. Lygon, a case manager. Plaintiff explained the
dangers to his physical safety and requested protective custody. Case management decided
instead to leave Plaintiff on administrative segregation pending transfer to another institution.
Plaintiff filed an ARP on April 10, 2007, at MCIH which was dismissed by administrative
remedy coordinator Mark Myers. ECF No. 1 at p. 7.
4
On June 1, 2007, Plaintiff was transferred from MCIH to Brockbridge Correctional
Facility (BCF). Upon arriving at BCF Plaintiff explained his history of being assaulted as well
as the existing hit that had been placed on him by Officer Crew, and he again requested
placement on protective custody. Plaintiff was told he would need to bring the matter to the
attention of the day shift on the following Monday.2 The following day Plaintiff was assaulted.
He was stabbed in the right eye and the head several times. He was also beaten about the head
with locks. Plaintiff’s injuries were severe enough to warrant his immediate transfer to Jessup
Correctional Institution (JCI) hospital where he remained for one week. ECF No. 1 at p. 7; Ex.
C.
Plaintiff was again transferred, this time to Central Laundry Facility (CLF). Upon arrival
Plaintiff refused to go into general population based on his previous assaults. He explained the
basis of his fears and request protective custody placement. In response Plaintiff was transferred
to Maryland Correctional Institution at Jessup (MCIJ), where Plaintiff again attempted to address
his complaints through the grievance procedure. At MCIJ Plaintiff was assigned to
administrative segregation and subsequently put in the Central Protective Custody Unit at the
Western Correctional Institution (WCI).
Plaintiff seeks compensatory and punitive damages as well as declaratory relief for the
alleged failure to protect him from violence. He states he can no longer see out of one eye and
has numerous facial scars as a result of the assaults he suffered.
2
June 1, 2007, was a Friday.
5
Defendants Alston, Anderson, Darden, Lygon, Joseph P. Sacchet,3 and Thomas are now
or were employed by the Maryland DOC during the period covered by the Complaint. The
allegations against them concern the events taking place after Plaintiff left BCDC. Defendants
admit that Plaintiff told Debora Darden during his intake interview at MRDCC, that he had been
stabbed and that he wanted to be assigned to protective custody. ECF No. 56 at Ex. 3. The
intake interview took place on March 27, 2007, and Plaintiff arrived at MRDCC on March 20,
2007. Id. at Ex. 1 and 2. Darden does not recall Plaintiff claiming that a correctional officer was
involved in facilitating the attack. Id. at Ex. 3. Upon hearing Plaintiff’s request for protective
custody, Darden had Lt. Ronald Thomas interview Plaintiff and had no further contact with
Plaintiff. Id.
Lt. Thomas interviewed Plaintiff on March 27, 2007, and spoke with him regarding his
concerns for his safety. ECF No. 56 at Ex. 5. Thomas recalls that Plaintiff told him he had been
attacked while on a DOC van that was traveling to BCDC after a court trip. Plaintiff related that
an inmate he knew as “BG” had a key which he used to come out of his restraints, produced a
knife, and stabbed Plaintiff repeatedly in the head. Id. Plaintiff related that his assailant was a
member of the Bloods gang. Thomas also does not recall Plaintiff stating that a correctional
officer was involved in the assault. Upon learning the details of Plaintiff’s assault, Thomas
contacted BCDC and spoke with the Warden’s secretary who advised that the assault in question
was under investigation by the Internal Investigative Unit (IIU).
Id.
Because Plaintiff’s
allegations were serious, Thomas placed Plaintiff on administrative segregation pending
consideration for placement on voluntary protective custody. Defendants relate that MRDCC
does not have “protective custody,” but it is the practice there to place inmates who express
3
Sacchet was named as a Defendant because Plaintiff was under the impression he was the warden of MCIH at the
time he was confined there. Plaintiff has filed a motion to substitute Warden Rouse for Sacchet in light of the fact
that Sacchet had retired by the time Plaintiff arrived at MCIH.
6
concerns about their safety on administrative segregation while they are there. Id. Thomas had
no further contact with Plaintiff after the interview and subsequent assignment to administrative
segregation. Id. On March 28, 2007, a case management team4 conducted a review of Plaintiff’s
administrative segregation assignment and, upon verifying the BCDC assault, recommended that
he remain on that status until he was transferred. Id. at Ex. 7.
On April 4, 2007, Plaintiff was transferred to MCIH and was assigned to general
population. ECF No. 56 at Ex. 9. The following day at approximately 3:00 p.m., Plaintiff
informed Officer Jeffrey Royce that he wanted to be placed on protective custody. Id. Royce
claimed he noticed a bump on the back of Plaintiff’s head while he was escorting him to Lt.
Anderson’s office. Defendants claim it was not until Plaintiff was being interviewed by Lt.
Anderson that he told the officers someone had struck him in the back of the head while he was
standing at his locker. Id. at pp. 7 – 8. Plaintiff was unable to identify his assailant or the
instrument used to strike him.5 Id. Plaintiff received three sutures for the injury to his head at
the MCIH hospital and was placed on administrative segregation until it could be determined that
he “can live safely” in general population. Id. at pp. 7, 9 – 10, 14 and 16.
On April 12, 2007, Plaintiff’s assignment to administrative segregation was reviewed by
a case management team, including Correctional Case Management Specialist Kirk Layton.
ECF No. 56 at Ex. 11. The team recommended that Plaintiff remain assigned to administrative
segregation and the recommendation was approved by Warden Rouse.
Layton states that
because Plaintiff “did not provide a specific name of the person who assaulted him” no entries
were made on his “enemies list.” On May 9, 2007, the case management team again reviewed
4
Defendant Alston was a member of the case management team. After review of Plaintiff’s assignment, she had no
further contact with him. ECF No. 56 at Ex. 7.
5
Pictures were taken of Plaintiff’s injury but the copies submitted with Defendants’ motion are too dark to discern
any detail. ECF No. 56 at Ex. 9, pp. 12 -- 13.
7
Plaintiff’s status and recommended that he be placed on a transfer list to any minimum security
facility, remaining on administrative segregation until he was transferred. Id. Layton claims
Plaintiff did not object to being transferred or being removed from administrative segregation on
the date he was to be transferred. Id.
Plaintiff was transferred to BCF on June 2, 2007, as a general population inmate. ECF
No. 56 at Ex. 12 at p. 5. Defendants do not deny that Plaintiff was assaulted at BCF, but admit
there are no records reporting the assault other than medical documentation of his stay in the
former Maryland House of Correction Hospital dated June 4 and 5, 2007. Id. at Ex. 13. Those
records reflect that Plaintiff was suffering “head discomfort” and lacerations. Also noted are the
sutures Plaintiff was given as well as the need for the use of neck brace during his stay at the
hospital. The records provided are partial records consisting only of nursing notes. Id. Plaintiff
has provided most of the missing medical records with his Complaint. ECF No. 1 at Ex. C.
Those records make it clear that Plaintiff required emergency medical care at the University of
Maryland following assault by another inmate. Plaintiff suffered a concussion, facial contusions
and lacerations, and was required to wear a cervical collar for two weeks as a part of his medical
care. Id. In addition, Plaintiff suffered a subconjunctival hemorrhage, causing loss of vision.
In short, it is clear from the records submitted that Plaintiff suffered an assault resulting in
serious injuries.
Plaintiff was transferred to Central Laundry Facility (CLF) on June 7, 2007, where case
management staff noted that he arrived wearing a hospital bracelet and suffering a swollen right
eye. ECF No. 56 at Ex. 14, p. 3. Plaintiff requested protective custody when he arrived at CLF,
explaining that he had been “assaulted at every jail he’s been in by the Bloods.” Id. at pp. 1 – 4.
Plaintiff was transferred from CLF to MCIJ on the same day he arrived. He was placed on
8
administrative segregation pending placement on protective custody at MCIJ. Id. at Ex. 2, p. 3.
Plaintiff remained on administrative segregation at MCIJ until July 26, 2007, when he was
transferred to Western Correctional Institution (WCI) and assigned to long-term protective
custody. Id. at Ex. 15. On November 6, 2007, Plaintiff was transferred to Eastern Correctional
Institution (ECI) with the same assignment to long-term protective custody.
Standard of Review
Summary Judgment is governed by Fed. R. Civ. P. 56(a) which provides that:
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 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 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).
AThe 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)). The
court should Aview the evidence in the light most favorable to....the nonmovant, and draw all
inferences in her 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). The court
must, however, also abide by the Aaffirmative obligation of the trial judge to prevent factually
unsupported claims and defenses from proceeding to trial.@ Bouchat, 346 F.3d at 526 (internal
9
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)).
Analysis
Exhaustion
Defendants allege Plaintiff failed to exhaust administrative remedies with respect to his
claims regarding assignment to protective custody within the DOC facilities. ECF No. 56. The
PLRA provides, in pertinent part:
(a) Applicability of administrative remedies
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. ' 1997e.
As a prisoner, Plaintiff is subject to the strict requirements of the exhaustion provisions.
It is of no consequence that Plaintiff is aggrieved by a single occurrence, as opposed to a general
conditions of confinement claim. See Porter v. Nussle, 534 U.S. 516, 528 (2002) (no distinction
is made with respect to exhaustion requirement between suits alleging unconstitutional
conditions and suits alleging unconstitutional conduct). Exhaustion is also required even though
the relief sought is not attainable through resort to the administrative remedy procedure. See
Booth v. Churner, 532 U.S. 731, 741 (2001). A claim which has not been exhausted may not be
considered by this Court. See Jones v. Bock, 549 U.S. 199, 220 (2007).
Administrative remedies must, however, be available to the prisoner and this Court is
“obligated to ensure that any defects in administrative exhaustion were not procured from the
action or inaction of prison officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th
Cir.2007). The Fourth Circuit has addressed the meaning of Aavailable@ remedies:
10
[A]n administrative remedy is not considered to have been available if a prisoner,
through no fault of his own, was prevented from availing himself of it. See
Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir.2007); Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir.2006). Conversely, a prisoner does not exhaust
all available remedies simply by failing to follow the required steps so that
remedies that once were available to him no longer are. See Woodford v. Ngo, 548
U.S. 81, 89 (2006). Rather, to be entitled to bring suit in federal court, a prisoner
must have utilized all available remedies Ain accordance with the applicable
procedural rules,@ so that prison officials have been given an opportunity to
address the claims administratively. Id. at 87. Having done that, a prisoner has
exhausted his available remedies, even if prison employees do not respond. See
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006).
Moore v. Bennette, 517 F. 3d 717, 725 (4th Cir. 2008).
Defendants premise their claim that Plaintiff has failed to exhaust administrative
remedies on the declaration under oath by Scott Oakley, the Executive Director of the Inmate
Grievance Office (IGO). ECF No. 56 at Ex. 16. Oakley states that there were two ARPs filed by
Plaintiff regarding the events outlined in the complaint. Those ARPs were assigned the numbers
MCIH-0528-07 and MRDCC-0168-07. Id. He further claims that his review of IGO records
reveal that Plaintiff filed two grievances with the IGO. One, filed on December 3, 2007,
concerning ARP-MCIH-0528-07, was assigned IGO No. 20072715. Oakley states the complaint
involves Plaintiff’s claim that he was assaulted by a group of unknown inmates on April 5, 2007,
at MCIH. The complaint was dismissed on December 21, 2007, because Plaintiff “failed to
respond to a letter from the IGO requesting that he provide copies of ARP paperwork
demonstrating that he properly exhausted the ARP process.” Id. Oakley does not provide a copy
of the dismissal letter for the Court’s review.
The other IGO complaint Oakley includes in his declaration was also filed on December
3, 2007, and concerned an appeal of ARP-MRDCC-0168-07. Oakley indicates the complaint
was about the assault Plaintiff suffered on March 15, 2007, by another inmate when they were
11
returning from court. Oakley concludes that “[t]his grievance was administratively dismissed on
December 6, 2007 for a variety of reasons.” Id. Again, Oakley does not provide a copy of the
letter dismissing Plaintiff’s grievance leaving the “variety of reasons” to the Court’s imagination.
Exhibits attached to Plaintiff’s Complaint included copies of ARPs and other
correspondence, including correspondence to and from Mr. Oakley. ECF No. 1 at Ex. B and C.
To the extent Defendants are relying on the non-exhaustion of administrative remedies
concerning events which occurred at BCDC, the defense fails. As noted by Mr. Oakley in
correspondence dated December 5, 2007, in which he dismisses Plaintiff’s grievance (IGO
20072712)6 the IGO does not have jurisdiction over employees of BCDC. ECF No. 1 at Ex. B,
pp. 15 – 16. Additionally, none of the Defendants moving for summary judgment are alleged to
have been involved in the events taking place at BCDC.
With respect to the allegation that Plaintiff has filed only two ARPs, both of which were
dismissed for unknown reasons, it is clear from the record that Plaintiff filed additional ARPs.
Oakley himself notes, in two letters addressed to Plaintiff a total of three other IGO grievances
not referenced in his declaration claiming Plaintiff has not exhausted administrative remedies.
See ECF No. 1 at Ex. B, pp. 15 – 16 (letter concerning IGO 20072712 and referencing IGO
20070740) and Ex. C, pp. 23 – 24 (letter concerning IGO 20072713 and referencing IGO
20070740). Second, there are ARPs provided by Plaintiff that reference other ARPs he has filed
that are not mentioned in Oakley’s declaration. See Id. at Ex. B, pp. 4 – 7 (ARP MCIH 0528-07
concerning assault at BCDC; dismissed as untimely), p. 13 (letter to IGO stating MCIH 0528-07
was submitted earlier with no response, then dismissed as untimely), Ex. C, p. 14 (ARP
MCIJ0229-07), pp. 19 – 22 (letter describing efforts to receive responses from ARPs). The
6
The Court notes that Mr. Oakley’s declaration under oath neglects to mention this grievance with respect to his
review of records.
12
apparent inaccuracies in the IGO records gives the Court pause, but the substance of the
dismissals received by Plaintiff are more troubling.
Plaintiff’s complaints filed with the IGO are clearly written; he is stating that he has told
correctional officials that he is the target of a prison gang and has requested protective custody
without results. ECF No. 1 at Ex. B and C. The complaints administratively dismissed by Mr.
Oakley characterizes his claim as stating a preference for protective custody over administrative
segregation. Citing Sandin v. Conner7and its progeny, Oakley states no due process claim is
presented and concludes that Plaintiff has failed to establish a significant departure from
applicable Division of Correction Directives (DCD). Id. at Ex. B, pp. 15 – 16 and Ex. C, pp. 23
– 24. In addition, Oakley views Plaintiff’s claim as moot because at the time of the dismissal he
had been assigned to long-term protective custody. Id. Thus, it appears Plaintiff was without a
remedy for the past conduct of correctional staff who may have failed to recognize a pervasive
risk of harm to his safety resulting in numerous, serious assaults resulting in permanent injuries.
In light of the record, the Complaint will not be dismissed for failure to exhaust
administrative remedies. It is evident to the Court that Plaintiff utilized the administrative
remedy provisions to the best of his abilities and he is not to be held accountable for the abject
failures present in this case.
The claims with respect to the DOC Defendants have been
adequately exhausted.
Failure to Protect
In order to prevail on an Eighth Amendment claim of failure to protect from violence,
Plaintiff must establish that Defendants exhibited deliberate or callous indifference to a specific
known risk of harm. See Pressly v. Hutto, 816 F. 2d 977, 979 (4th Cir. 1987). APrison conditions
may be restrictive and even harsh, but gratuitously allowing the beating or rape of one prisoner
7
515 U. S. 472 (1995).
13
by another serves no legitimate penological objective, any more than it squares with evolving
standards of decency. Being violently assaulted in prison is simply not part of the penalty that
criminal offenders pay for their offenses against society.@ Farmer v. Brennan, 511 U.S. 825,
833B 34 (1994) (citations omitted). A[A] prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the official knows
of and disregards an excessive risk to inmate health or safety; 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; see also Rich v. Bruce, 129 F. 3d 336, 339B 40 (4th
Cir. 1997).
It is undisputed that Plaintiff was targeted, possibly by a correctional employee, and
assaulted by other inmates. Plaintiff asserts he told every correctional employee he encountered
that a “hit” had been placed on him by Officer Crew; that the Bloods were out to get him; and
that he wanted to be assigned to protective custody. ECF No. 1. Defendants dispute that
Plaintiff told them a correctional officer put a hit out on him and that Plaintiff did not object to
being transferred as a general population inmate. ECF No. 56. Who knew about the risk of harm
to Plaintiff and what they did in light of that information is essential to determining whether or
not an excessive risk was ignored. This dispute is a genuine dispute of material fact precluding
summary judgment in favor of either Defendants or Plaintiff, as this Court cannot determine the
credibility of the parties’ assertions on summary judgment.
Additionally, the issue of whether the DOC Defendants are entitled to avail themselves of
a qualified immunity defense will to a great degree turn on the determination of how much
Defendants knew and when they knew it. “[Q]ualified immunity protects law officers from >bad
guesses in gray areas= and it ensures that they may be held personally liable only >for
14
transgressing bright lines.=@ Gomez v. Atkins, 296 F. 3d 253, 261 (4th Cir. 2002), quoting
Maciariello v. Sumner, 973 F. 2d 295, 298 (4th Cir. 1992). If the DOC Defendants knew there
was an unreasonable, pervasive risk to Plaintiff’s physical safety and did nothing in light of that
knowledge, they have not made a bad guess in a gray area.
Accordingly, the motions for summary judgment filed by Plaintiff and Defendants shall
be denied.
Plaintiff’s Motion for Appointment of Counsel shall be granted.
A separate
scheduling Order governing the further progress of this case shall be issued after counsel is
appointed.
A separate Order follows.
/s/
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
June 6, 2011
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