McCullough v. Michael J. Stouffer , et al
Filing
39
MEMORANDUM OPINION. Signed by Judge Roger W Titus on 8/29/2012. (c/m 8/30/12 rs) (rss, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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Plaintiff,
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v.
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Case No.: RWT 11cv1782
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MICHAEL J. STOUFFER, et al.,
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Defendants.
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MEMORANDUM OPINION
TAMAR MCCULLOUGH,
Currently pending before the Court is Defendants’ Motion for Summary Judgment. ECF
No. 31, which Plaintiff opposes. ECF Nos. 36; 38. The Court finds a hearing in this matter
unnecessary, see Local Rule 105.6 (D. Md. 2011), and for the reasons discussed below, the Court
will grant Defendants’ motion.
Background
Plaintiff Tamar McCullough (“McCullough”) references a 2009 lawsuit filed in this
Court in which he claimed his life was in danger at North Branch Correctional Institution
(“NBCI”). Compl. at 1-2; see McCullough v. Kitis, Civil Action RWT-09-206 (D. Md.). In that
complaint McCullough claimed he was targeted for threats and assaults by other inmates because
they knew about his “high profile” case involving an eight year-old female victim. Compl. at 1.
He states that correctional officers as well as case managers did nothing to assist him in
obtaining protective custody housing and correctional officers had threatened to physically
assault him. Id. at 1-2. McCullough sought an order from this Court requiring correctional
officials to permanently assign him to protective custody and prohibit his transfer out of state.
Id. Although McCullough asserts the lawsuit was dismissed as moot because he was transferred
from NBCI to Patuxent Institution, the case was dismissed on the merits pursuant to an
unopposed Motion for Summary Judgment. Id. at 2; see also McCullough v. Kitis, Civil Action
RWT-09-206 (D. Md.) ECF Nos. 32, 33.
In the instant case, McCullough states that shortly after the 2009 case was closed, he was
transferred back to NBCI.1
Compl. at 2.
Upon his return, McCullough again requested
protective custody but his request was denied. Id. at 3. He states he was put into general
population where he experienced threats, assaults, and extortion. McCullough claims numerous
inmates refused to double-cell with him. Id. In addition he states that Sgt. William L. Thomas
and Officer Keith Markle pointed McCullough out to their co-workers as the inmate who filed a
lawsuit against them. Id.
McCullough claims Case Manager Mike McMahan, Officer E. Gotjen, Officer Markle,
Sgt. Whitaker, and Lt. Wedlock set him up to be housed in a cell with inmate James Barnes, who
suffers from a serious mental disorder. Id. McCullough states Barnes attempted to perform a
sexual act on him and he was forced to defend himself. Id. He alleges Gotjen lied on a report
concerning the incident. Id. As a result, McCullough received a sixty day segregation sentence
and was convicted of additional criminal charges for second-degree assault. Id. Despite filing
numerous administrative remedy procedure complaints, McCullough states he was not given any
assistance from prison officials when he was housed at NBCI. Id.
On December 1, 2010, McCullough was transferred from NBCI to Western Correctional
Institution (WCI), where he claims his request for protective custody housing went unanswered
by case manager James Wilson. Id. at 4. McCullough alleges that he was threatened by inmates
who refused to be double-celled with him and was extorted for commissary items. Id. He states
the threats continued when he was moved to another housing unit and his continued requests for
1
McCullough states his Complaint was dismissed on September 1, 2009; he was assigned to administrative
segregation at Patuxent on September 3, 2009; and he was transferred back to NBCI on September 21, 2009.
Compl. at 2.
2
protective custody were disregarded. Id. In particular, McCullough states his complaints about
threats and his requests for protective custody were directed to Sgt. Semmons, Officer R.
Christner, Officer Ms. Mock, Case Manager, James Wilson, Lt. McKenzie, Case Manager
Devore, and Warden J. Phillip Morgan. Id.
On May 31, 2011, McCullough maintains that he was attacked, suffering multiple stab
wounds as well as a blow to the head with a hard object concealed in a sock. Id. at 4. After he
was treated in the WCI infirmary, McCullough was escorted back to housing unit 3 where he
claims he was left restrained behind his back with a bleeding arm. Id. at 5. Eventually
McCullough was placed on administrative segregation at WCI, where Officer D. Connor
allegedly forced him to accept a cell-mate two weeks after he was attacked. Id. McCullough
alleges that Razzaq Karim, the inmate placed in the cell with McCullough, choked McCullough
until he was unconscious. Id. When McCullough regained consciousness, Karim allegedly
attacked him again, ramming him into the back of the cell. Karim told McCullough that Connor
told him that McCullough is a child molester. Id. McCullough alleges the failure to assign him
to a single cell pending an investigation into the assault against him by unknown assailants, was
deliberate indifference to his safety. Doc. No. 3 at 8.
In his supplement to the complaint, McCullough alleges that his repeated pleas for help
were ignored, which resulted in the attack on May 31, 2011. Doc. No. 3 at 7. He states he filed
administrative complaints on March 13, 2009, and on April 1, 2009, requesting protective
custody, but the complaints did not prompt a hearing or investigation into his claims. Id.
McCullough further states that the refusal to address his concerns about safety continue,
explaining he has filed request forms on June 11, 15, and 24, 2011, and on July 11 and 26, 2011,
to no avail. Id.
3
McCullough further claims that the Defendants are deliberately indifferent to his safety
because they refuse to provide him with a single cell. He contends that any inmate who is
assigned to a cell with him could be a gang member or could find out about his “high profile”
criminal case. Id. at 10. He states that Lt. Natale has threatened to retaliate against him for
complaining about the incidents concerning Karim. Id. On June 10, 2011, McCullough alleges
he was escorted out of his cell by Connor to Natale’s office to discuss a letter McCullough’s
family wrote to the warden threatening to sue WCI administrators if he is killed in prison. Id.
McCullough claims that Natale threatened that if a lawsuit was filed he would assign the biggest
and most violent inmate on administrative segregation to be McCullough’s cellmate. Id. Six
days later, McCullough states he was choked unconscious by inmate Karim. Id.
On June 27, 2011, McCullough alleges he was forced to share his cell with inmate
Miguel Vazcquea who he claims was suffering from a contagious staph infection as well as a
mental disorder. Id. On July 6, 2011, McCullough was again escorted to Natale’s office by Sgt.
R. Bucadueles2 about a complaint McCullough filed regarding the assault by Karim and the
allegation that Connor had told Karim that McCullough was a child molester. Id. During this
meeting McCullough states that Natale threatened that McCullough would remain on
administrative segregation if he refused to “sign off” on the complaint. Id. McCullough alleges
he was called a liar and again threatened by Natale on July 15, 2011, when he again refused to
“sign off” on a complaint. Id.
McCullough alleges that his move from housing unit 5 to housing unit 3 was unwarranted
and evidenced deliberate indifference to his safety because the inmates confined to housing unit
2
This individual was not named as a Defendant.
4
3 were known to be violent. Id. at 11. On May 10, 2011, McCullough claims Sgt. Semmons3
stood in the front area of housing unit 5 and said that inmates refused to be double-celled with
McCullough because they had heard rumors from other inmates about his “high profile case”
involving a young victim. Id. At that time McCullough asked Semmons to place him on
protective custody and he refused to do so. Id. McCullough states the refusal was a contributing
factor to the assault he suffered on May 31, 2011. Id.
McCullough further alleges Lt. McKenzie was given a complaint form on May 15, 2011,
stating that McCullough’s life was being threatened by members of prison gangs due to his high
profile case. Id. at 12. He claims McKenzie never responded to the complaint, nor did he
respond to McCullough’s request for protective custody. Id. McCullough further states that he
was never contacted regarding an investigation into his claims. Id.
McCullough claims he informed Officer R. Christener that inmates were threatening to
kill him because they knew the circumstances of his crime. Id. at 13. McCullough requested
protective custody from Christener and explained that inmates Paul Matthews and Wadell
Brooks refused to be housed with him because of the nature of McCullough’s offense. Id.
Christener was also allegedly informed that inmates were spreading rumors to McCullough’s
cellmates about his criminal offense. Id. Despite McCullough’s requests, he claims Christener
instead wrote that McCullough was causing problems with all of his cellmates. Id. Christener
allegedly told McCullough that all the inmates housed with him had been moved numerous times
because they had been having problems with other cellmates. Id. at 13-14. McCullough claims
that it was Christener who was the impetus behind moving him to a different housing unit and
relies on Christener’s assertions that other inmates were moved into McCullough’s cell because
3
No employee by this name could be identified on any duty rosters. See ECF No. 31, Ex. 10.
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they had problems with other inmates to refute Christener’s report that McCullough was causing
problems. Id. at 14.
In his second amended complaint, McCullough alleges that case managers James Wilson
and Doug Devore illegally warehoused him on administrative segregation for over 225 days,
preventing him from receiving an education, holding an institutional job, attending religious
services, and earning diminution of confinement credits. Doc. No. 24 at 1. He further claims
that Wilson, Defore, and Natale are ordering lower ranking officers to put cellmates in his cell
despite McCullough’s claims of being stabbed by numerous inmates who attacked McCullough
because of the nature of his crime. Id. at 2. McCullough claims that some of the inmates forced
into his cell with him are involved in gang activities and, as such, present a threat of harm to him.
Id. Wilson and Devore are allegedly preventing McCullough from being assigned to protective
custody and from having his security level lowered to enable his transfer to another medium
security prison, such as Jessup Correctional Institution (JCI) where long term protective custody
is available. Id.
McCullough further alleges that Defendants are conspiring to have him transferred out of
Maryland, which McCullough claims will not eliminate the threats on his life because prison
inmates have relatives research other prisoners’ criminal history on the internet, including
McCullough’s history, making the circumstances of his conviction readily available to any
prison population. Id. at 2-3. He further claims he has informed Defendants that many inmates
have knowledge of the details of his crime and that it is likely he will continue to experience
threats and physical abuse if he is transferred out of state. Id. at 3. McCullough further claims
he will be harmed by such a transfer because the cost of phone calls to his relatives will increase
and he will not be able to receive visits from his family. Id. McCullough alleges that the
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transfer to a prison outside the state is a form of retaliation against him and states there is no
other justifiable reason for him to continue to be warehoused on administrative segregation. Id.
at 4.
McCullough further claims that Lt. Natale orders officers in his housing unit to
continuously relocate him from cell-to-cell, forcing him to pack and unpack his belongings on a
regular basis. Id. In addition, he claims Natale orders officers to go into his cell and “trash it” in
an effort to harass him. Id. McCullough asserts his rights will continue to be violated so long as
he is confined in a prison in Cumberland, Maryland (WCI or NBCI). Id. He asserts he is not a
threat to other inmates confined to protective custody and explains his assault on inmate Barnes
was done in self-defense when Barnes attempted a sexual act with him. Id. at 5.
Standard of Review
Summary judgment is proper if there are no issues of material fact and the moving party
is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material fact is
one that “might affect the outcome of the suit under the governing law.” Spriggs v. Diamond
Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, 477 U.S.
242, 248 (1986)). A dispute of material fact is only “genuine” if sufficient evidence favoring the
non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S.
at 248-49. However, the nonmoving party “cannot create a genuine issue of material fact
through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769
F.2d 213, 214 (4th Cir. 1986). “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
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Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alternation in original) (quoting
Fed. R. Civ. P. 56(e)).
The Court may only rely on facts supported in the record, not simply assertions in the
pleadings, in order to fulfill its “affirmative obligation . . . to prevent ‘factually unsupported
claims or defenses’ from proceeding to trial.” Felty v. Grave-Humphreys Co., 818 F.2d 1126,
1128 (4th Cir. 1987) (citing Celotex, 477 U.S. at 323-24). When ruling on a motion for summary
judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to
be drawn in his favor.” Anderson, 477 U.S. at 255 (emphasis added).
Analysis
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). “[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.”
Framer v. Brennan, 511 U.S. 825, 837 (1994); see also Rich v. Bruce, 129 F. 3d 336, 339-40
(4th Cir. 1997). These requirements spring from the text of the amendment itself; absent
intentionality, a condition imposed on an inmate cannot properly be called “punishment,” and
absent severity, such punishment cannot be called “cruel and unusual.” Iko v. Shreve, 535 F.3d
225, 238 (4th Cir. 2008) (citing Wilson v. Seiter, 501 U.S. 294, 298-300 (1991)).
To establish a sufficiently culpable state of mind, there must be evidence that a known
excessive risk of harm to the inmate’s health or safety was disregarded. See Wilson, 501 U.S. at
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298. In other words, “‘the test is whether the guards know the plaintiff inmate faces a serious
danger to his safety and they could avert the danger easily yet they fail to do so.’” Brown v. N.
C. Dept. of Corrs., 612 F.3d 720, 723 (4th Cir. 2010) (quoting Case v. Ahitow, 301 F.3d 605, 607
(7th Cir. 2002)).
Central to McCullough’s claims are his assertions that he repeatedly asked for protective
custody housing and warned prison officials of an impending assault, which then occurred at the
hands of several unidentified inmates. It is not disputed that McCullough was assaulted on May
31, 2011. ECF No. 31, Ex. 11. Also undisputed is that McCullough filed an ARP on May 15,
2011, stating he should be assigned to protective custody because he was being threatened by
other inmates.
ECF Nos. 24, Ex. C; ECF No. 31, Ex. 16.
The ARP was dismissed for
procedural reasons, i.e., that case management decisions are not an appropriate subject matter for
an ARP.
The basis for dismissal of Plaintiff’s May 15, 2011 ARP was affirmed by the
Commissioner of Correction and the Inmate Grievance Office (“IGO”). ECF No. 31, Exs. 16 &
17.
Under applicable regulations, the ARP coordinator must perform a preliminary review of
complaints filed by inmates to determine if they concern an emergency matter. If the ARP
concerns an emergency, all time constraints are suspended and the Warden is required to:
accelerate the investigative process; direct immediate corrective action; and/or notify the
institutional health care provider of any medical complaints.
ECF No. 31, Ex. 14 at 3.
Additionally, the institutional coordinator is required to accept a late filing or take appropriate
action outside of the ARP process for good cause if failure to do so could result in serious harm.
Id. at 8. Plaintiff’s ARP read in pertinent part:
Warden J. Philip Morgan, I’m writing you because my life is in danger by
inmates. During the year of 2002, I was charged with a crime that involved
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a young victim and my criminal case was highly publicized. My being able
to function, normally as the average inmate, who strives to do well, has
been entirely difficult because of my high profile case. Since the beginning
of my incarceration of year 2002, up until now, at different jails and prison
institutions in this state of Maryland I’ve had feces and urine thrown on my
person, I’ve been chased off of a tier with fashioned knives, I’ve been
physically assaulted on numerous occasions, I’ve been constantly
threatened by inmates, mostly different ones of various gangs, in general,
that they are going to try and murder me. I’ve been extorted, inmates refuse
to be housed with me because of the nature of my criminal charges of year
2002, I’m currently serving my prison term for. I’ve been deliberately
placed in the cell with certain individual inmates with known severe mental
disorder, which, one, tried to perform a homosexual act on me, and I was
forced to defend myself.
***********
MY COMPLAINT IS: That I’ve been turning in numerous Inmate Request
Forms trying to seek help that I might be housed on protective custody.
I’ve made request of my former case manager of housing unit 5, J. Wilson,
Sgt. Semmons, Ms. Mock and the normal 8 – 4 shift tier officer, CO II
Chrstner, requesting housing on protective custody verbally and by written
request, but I was repeatedly denied and threatened that I would be placed
on segregation status. I’ve been paying inmates food and other items off
commissary to keep the gang inmates from trying to kill me when I was
located in housing unit 5. . . . I’m having my life threatened here in housing
unit #3 and inmates bump me deliberately whenever passing me by doing
movement time going to the recreation yards, on the tiers or going to the
Chow Hall . . . I should not have been moved to this housing unit #3
because of inmates not wanting to be housed with me because of my
criminal charges.
MY REQUEST is that I be housed on protective custody and if you refuse
me protective custody, that I be moved back to housing unit #5 on C-tier
and double cell with a[n] inmate who is not involved in no [sic] gang
activity. My complaints have be[en] ongoing and my civil rights violated
repeatedly. I won’t lose this next law-suit I file, or my family won’t.
ECF No. 24 at Ex. C at 1– 5.4
Despite acknowledging receipt of the ARP, Defendants declare under oath that
McCullough did not request protective custody prior to being assaulted on May 31, 2011. ECF
No. 31, Exs. 4, 9, 11, and 12. They do not address why McCullough’s May 15, 2011 ARP was
4
In addition to this ARP, McCullough attaches a copy of an inmate request form seeking assignment to protective
custody to his second amended complaint which is dated May 15, 2011. ECF No. 24, Ex. C at 18. There is no
indication on the form that it was presented to or received by correctional staff.
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not treated as one requiring special treatment under the regulations set forth above. Id., Ex. 13.
Based on the undisputed facts, the undersigned concludes that McCullough did in fact inform
prison officials that he was being threatened by other inmates, required additional protection, and
did not receive it. Further, it is clear that subsequent to his request, McCullough’s prediction
came to fruition and he was assaulted. See id. Ex. 18 at 8–10.
The question remains whether Defendants’ failure to act on McCullough’s request for
protective custody was evidence of deliberate indifference to his safety or the result of
managerial decisions based on other salient factors involved in McCullough’s case. McCullough
claims he is not a threat to other inmates confined to protective custody and explains his assault
on inmate Barnes was done in self-defense when Barnes attempted a sexual act. ECF No. 24 at
4–5.
Defendants contend that McCullough’s behavior and his history of violent assaults on
both staff and other inmates make his placement on protective custody problematic at best. ECF
No. 31, Ex. 4. McCullough received an additional six-month sentence for assaulting a Division
of Correction (DOC) employee on March 28, 2011. ECF No. 24, Ex. B at 19. He also pled
guilty to assaulting Barnes at an institutional adjustment proceeding. Id., Exs. A, B at 2–6, 17–
18. Defendants explain that inmates assigned to protective custody have had verified threats on
their lives and McCullough could “wreak havoc” on that population given his “propensity for
violence.” ECF No. 31, Ex. 4 ¶ 6. Defendants further assert that McCullough “does not have a
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documented enemy in every State of Maryland institution that would warrant PC placement.”5
Id.
In his Response in Opposition, McCullough argues that the availability of information
concerning the details of his criminal offense is enough to justify his permanent assignment to
protective custody. ECF Nos. 36; 38.
He claims other inmates are given access to this
information through family members who research the matter on the internet. McCullough
attaches two Baltimore Sun internet articles describing the facts of his offense. ECF No. 38.
The information is not difficult to find, but there is no objective evidence that prisoners have
access to the information. The circumstances of McCullough’s offense do not appear to have
been considered by Defendants in weighing the decision regarding McCullough’s assignment to
protective custody. The court, however, takes judicial notice of the fact that many prisoners in
maximum security prisons have been convicted of crimes involving children or crimes otherwise
sufficiently heinous to cause the prisoner to be repugnant to others.
Following the assault on May 31, 2011, McCullough was assigned to administrative
segregation and an investigation was conducted; however, his assailants could not be identified.
Because McCullough, a maximum security inmate, had an enemy at NBCI, his housing options
are severely limited. NBCI and WCI are the only two maximum security prisons in Maryland.6
Nevertheless, staff at WCI attempted to have McCullough’s security level lowered to medium so
5
The Court notes, however, that the applicable standard for assignment to protective custody is “appropriate only
when required for the protection of the inmate” and case management teams “may consider an inmate for transfer to
a designated protective custody facility to ensure the consistent and safe management of an inmate who is deemed to
be at risk if housed in general population in any DOC facility.” ECF No. 31, Ex. 8 at 6–7. Alternatives to assigning
an inmate to protective custody include: transfer to a different housing unit in the same facility; lateral transfer to
another facility of the same security level; transfer of the documented enemy or enemies; transfer to another state
under the Interstate Corrections Compact; transfer to MCAC in exceptional circumstances; and assignment to home
detention if eligible. Id.
6
McCullough’s claim that he was illegally warehoused on administrative segregation is belied by the record. It is
clear that his assignment to administrative segregation was for the sole purpose of insuring his safety while the
circumstances of his assault were investigated and a determination made where he could be safely housed.
12
he could be transferred to another prison as a general population inmate. ECF No. 31, Exs. 5 &
6. A reduction in his security level was disapproved by DOC headquarters and McCullough
remained on administrative segregation until March 22, 2012, when it was determined that he
could be transferred back to NBCI because his enemy was no longer confined there. Id., Ex. 4 at
2; Ex. 5 at 1-2, 6.
When contrasted with the lack of response to McCullough’s May 15, 2011 ARP,
Defendants’ actions following his assault support a conclusion that they were subjectively
unaware of the dangers posed to McCullough prior to the actual assault. See Farmer, 511 U.S. at
847 (liability hinges on subjective awareness of the risk to the inmate and subsequent failure to
take reasonable measures to abate the risk).
The subsequent attacks on McCullough must be
viewed in light of Defendants’ admitted awareness of the danger posed to McCullough following
the May 31, 2011 assault and in light of the parties’ inability to identify the assailants involved.
McCullough wrote an inmate request form dated June 17, 2011, addressed to Lt. Natale,
asking for Razzaq Karim to be moved out of his cell. ECF No. 24, Ex. C at 3. In the request he
indicates that his family had already threatened to sue the prison if the administration allowed
him to be murdered in prison and that “the inference can be drawn that my life is in danger
because of my year 2002 high profile case which involved a young female victim.”
Id.
Additionally, he accuses Natale of making good on his threats to house him with the worst
inmates he can find and claims officers are telling his cell mates about his offense. Id.
In another inmate request, also dated June 17, 2011, but addressed to James Wilson,
McCullough claims that on June 16, 2011 he was choked unconscious by Karim after Officer
Conner told Karim that McCullough is a child molester. Id., Ex. C at 1–2.
Additionally
McCullough alleges he protested Karim’s assignment to his cell in light of the recent assault he
13
suffered at the hands of unidentified inmates and told the officers who escorted Karim to the cell
that he has a high profile case, making him a target for violent assaults. Id. There is no
indication that either request was received or addressed by prison staff.
An investigation into McCullough’s claim against Karim was conducted and included an
investigation into his allegation that staff was putting inmates into McCullough’s cell for the
express purpose of causing him harm. ECF No. 31, Ex. 19 at 6–7. Lt. Natale investigated the
claim and could not identify any reason for Razzaq to assault McCullough after speaking with
Officer Connor, Officer Bonner7 and Razzaq.8 Id. at 7. Additionally, he noted that McCullough
waited ten days after the incident to submit an ARP about the alleged assault and, in the
meantime, he was seen for administrative segregation review on July 1, 2011, and did not
mention the assault. Id. Natale concluded that McCullough’s complaint was without merit.
In an ARP dated November 6, 2011, which McCullough forwarded to the IGO, he raises
the claim regarding Karim’s assault against him. Doc. No. 24, Ex. C. In that complaint,
McCullough admits he did not seek medical attention after the assault because he was choked
and slammed against the wall and no bruises would have been visible, making the assault
unverifiable by medical. Id. at 13. McCullough’s reluctance to report the assault to medical
staff and his delay in reporting the matter to correctional staff support Natale’s conclusion that
the complaint regarding Karim was without merit.
McCullough also complained about another cell mate, Miguel Vazquez, whom he
claimed was mentally ill and plotting to assault or kill McCullough in order to get transferred
7
Connor and Bonner related that McCullough simply said he did not want another inmate in his cell and relented
when he was told he would receive a disciplinary adjustment if he did not allow Karim to move into the cell. ECF
No. 31, Ex. 19 at 8–9.
8
Razzaq denied assaulting McCullough and stated he believed the allegation was some sort of plot. ECF No. 31,
Ex. 19 at 10.
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back to Spring Grove Hospital. Id., Ex. C. In a complaint dated July 8, 2011, McCullough
relates that Vazquez does not know the circumstances of McCullough’s criminal conviction, but
asks what will happen if Vazquez finds out. Id. at 4. McCullough then claims staff is housing
him with inmates like Vazquez in an effort to have him harmed. Id. at 5. Based on this
complaint, McCullough maintains he should be assigned to a single cell. To the extent this
complaint was received by correctional staff, it does not convey a message of imminent danger
to McCullough’s safety and a lack of response to it would, therefore, not be evidence of
deliberate indifference to his safety.
The undisputed evidence establishes that while Defendants were aware of facts
supporting an inference that McCullough was in danger of being assaulted prior to May 31,
2011, they failed to draw the inference. See Rich, 129 F. 3d at 339-40. Following the assault,
Defendants took measures to keep McCullough safe by assigning him to administrative
segregation and conducting an investigation.
McCullough disagreed with the decisions
regarding his housing assignment. He did not want to be confined to administrative segregation
and felt he should not be housed with another inmate. His assertions that one of his cellmates
assaulted him are unsupported by objective evidence and his failure to report the assault to
medical or correctional staff lends no credence to his claim. Under the circumstances it was not
unreasonable for Defendants to deny McCullough’s requests to be single celled.
Defendants’ decision not to assign McCullough to protective custody was based on
factors regarding McCullough’s propensity toward violent behavior.
As observed, inmates
housed on protective custody have verified threats on their lives and an assaultive inmate in their
midst would be counter-productive.
There is also no evidence to support McCullough’s
assertions that correctional officers are announcing the nature of his crime and telling other
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inmates that he is a child molester. McCullough’s numerous requests and complaints almost
invariably include a reference to the nature of his offense. It thus appears it is McCullough who
publicizes the circumstances of his offense within the prison.
The Eighth Amendment claim for failure to protect from violence fails on the record
before this court. A careful review of the exhibits filed and the allegations raised establish that
McCullough is less concerned with his physical safety and more concerned with dictating where
and with whom he is housed. His objections to an out-of-state transfer and the allegation that his
frequent moves between cells is harassment are inconsistent with his claim that his life is
endangered by the entire Maryland prison population. Based on this record, Defendants are
entitled to summary judgment in their favor. A separate order follows.
Date: August 29, 2012
/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE
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