Dunn v. Parsons et al

Filing 31

MEMORANDUM OPINION signed by Judge Peter J. Messitte on 3/14/2012. (c/m Plaintiff 3/15/2012; bf2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EULISTA DUNN,

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Plaintiff,

v.

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ERIC PARSONS, et al.,
Defendants.

CIVIL ACTION NO. PJM-11-1960

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MEMORANDUM OPINION
Pending are Defendants Eric Parsons, Cody Reed, Andrew Nave, Joseph Harsh, and Nancy
Rouse’s Motion to Dismiss or for Summary Judgment and Plaintiff’s response.1 ECF Nos. 24 &
30.2 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
Plaintiff states that while temporarily housed at the Roxbury Correctional Institution (“RCI”)
he was assaulted by Correctional Officers Harsh and Nave while Correctional Officers Reed and
Parsons stood by and watched. He states that as a result of the assault he suffered an asthma attack
and his front tooth was broken. ECF Nos. 1 & 4. In his statement to the Internal Investigation Unit,
Plaintiff stated that when he arrived at RCI he was placed in the Administrative Segregation
Isolation Area (“”ASIA”) holding cell. Approximately an hour later Parsons told him he was
moving to Housing Unit #5. Plaintiff advise Parsons he was not supposed to be placed in Housing

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Plaintiff has responded to Defendants= dispositive motion (ECF No. 30) but has failed to provide any affidavit,
even his own, to contradict Defendants’ version of events. Although a Court may treat a verified complaint as an
affidavit for purposes of summary judgment, Plaintiff’s complaint has not been verified. See Williams v. Griffin, 952
F.2d 820, 823 (4th Cir. 1991). Any other documents the party submits may not be considered on a motion for summary
judgment unless they are authenticated by either an affidavit or deposition. See Orsi v. Kirkwood, 999 F. 2d 86, 92 (4th
Cir. 1993). Plaintiff was given notice of his rights and responsibilities with regard to the motion for summary judgment
filed against him in accordance with the requirements of Roseboro v. Garrison. See 528 F. 2d 309, 310 (4th Cir. 1975);
see also ECF No. 25.
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Plaintiff’s motion for extension of time to respond to the dispositive motion (ECF No. 20) is granted nunc

pro tunc.

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Unit #5 due to previous incidents with staff. Plaintiff was, however, transported to Housing Unit #5.
A short time later, Parsons came to his cell and advised him he was being moved back to ASIA.
After he was placed in the van, Parsons received a call on his radio which said, “I saw him pop his
cuff, check him.” Parsons unlocked the door and asked Plaintiff if he had popped his handcuffs.
While they were talking, Officer Nave jumped into the van, grabbed Plaintiff by his throat, and said
“Dunn you haven’t changed, you’re still a pain in my ass.” Officer Harsh then arrived to assist and
placed Plaintiff in a sleeper hold which caused Plaintiff to suffer an asthma attack. Plaintiff states he
was then dragged and beaten which caused his front tooth to break. He also claims he sustained
bruises to his head, face and ribs. He states that the assault continued until he arrived at the
dispensary. ECF Nos. 1 & 4, ECR No. 24, Ex. 4, p. 7-8.
The uncontroverted record reveals that Plaintiff, who was on disciplinary segregation status,
was transferred from RCI to the North Branch Correctional Institution (“NBCI”) on May 1, 2009.
ECF No. 24, Ex. 1 & 2. Records demonstrate that Plaintiff has a history of asthma and evaluated by
Steven Bray R.N. on November 12, 2009, due to complaints of chest discomfort. Plaintiff stated the
pain was sharp and “stabbing like.” Id., Ex. 3.
On November 17, 2009, Plaintiff was temporarily transferred to RCI for a court date. Id., Ex.
1 & 4. During the Internal Investigation Unit’s (“IIU”)investigation of Plaintiff’s claim of assault,
RCI Acting Chief of Security Major Brezler reported that on November 17, 2009, he had instructed
staff that the inmates received at RCI for temporary housing were to be housed in ASIA if they were
maximum security status or on segregation status; otherwise, they were to be housed in Housing
Unit #5. Id., Ex. 4, pp. 8-9, 21-22. Plaintiff was inadvertently taken to Housing Unit #5. After all
the inmates had been secured, Traffic Officer Carter notified Brezler that Plaintiff was to be housed
in ASIA. Brezler called Housing Unit #5 to direct staff to move Plaintiff to ASIA when he was

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advised that Plaintiff was claiming that he was having an asthma attack and was being escorted to
the dispensary. Id. The only incident noted that day at RCI was Plaintiff’s asthma attack. Id., p. 9,
see also Ex. 5. The IIU investigation revealed no evidence to support Plaintiff’s claim that he was
assaulted on November 17, 2009. Id., p. 22.
Defendant Parsons avers that on November 17, 2009, he was assigned to RCI’s Housing
Unit #5 as an escort officer. Id., Ex. 6. Defendants Reed, Nave, and Harsh aver that on November
17, 2009, they were assigned to RCI’s Housing Unit #5. Id., Exs. 8, 9 & 10. Parsons states that he
received a telephone call from the traffic office advising him that two inmates needed to be picked
up. One was held in ASIA and the other was in a holding cell in the receiving area. Parsons arrived
at ASIA and was escorted by the ASIA officer to where Plaintiff was being held. Parsons
handcuffed Plaintiff, escorted him out of the cell and to the receiving area to pick up the other
inmate, and then placed Plaintiff into the transportation van and transported him to Housing Unit #5
without incident. Id., Ex. 6.
Parsons then went to the control center of Housing Unit #5. Approximately thirty minutes
later, a call was received indicating Plaintiff needed to be returned to ASIA. Id., Exs. 6, 8, 9 & 10.
Parsons went to Plaintiff’s cell and advised him he was returning to ASIA. Plaintiff stated, “I ain’t
cuffing up. I think you guys are messing with me.” After a brief conversation, Parsons gained
Plaintiff’s compliance. Defendants Reed and Parsons escorted Plaintiff to the transportation van. Id.,
Ex. 6 & 8. As Plaintiff was escorted past the control center in Housing Unit #5, Harsh noticed the
his handcuffs appeared loose. Id., Ex. 10. Parsons then received a call over the radio from Harsh
advising him to check Plaintiff’s handcuffs. Id., Exs. 6, 8, 9 & 10. When Parsons attempted to check
Plaintiff’s handcuffs, Plaintiff went into the van and lay on his back, preventing the officers from
seeing the handcuffs. Parsons requested assistance from the control center and Nave responded.

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Nave entered the van and he and Parsons attempted to check the handcuffs. Plaintiff was
uncooperative. Parsons took hold of Plaintiff’s feet and Nave took hold of his shoulders. They
lifted him out of the van in order to check the handcuffs. The handcuffs were loose. Parsons
tightened them. At that point, Plaintiff indicated he was having an asthma attack. He was escorted
back into the van and transported to the medical department. Id. Parson, Reed and Nave aver that
they did not assault Plaintiff and he was not assaulted by any officer in their presence. Id., Ex. 6, 8,
& 9. Parson avers that he was with Plaintiff the entire time until he was seen by medical staff and
further avers that Harsh was not on the scene during the inspection of the handcuffs/extraction from
the van. Id., Ex. 6.
Plaintiff was escorted to the dispensary on the date of the incident and received a breathing
treatment. No other complaints or injuries were noted. Id., Ex. 4, p. 61-62 & Ex. 6. He was
evaluated by on-site medical staff at NBCI on November 19, 2009. No injuries were observed. Id.,
Ex. 4, p. 1. He was next evaluated by the medical department at NBCI on November 24, 2009. It
was noted that his tooth repair was missing. Two “tiny pink” marks were observed on the right side
of his forehead. Darkened marks were observed on his right and left wrists. No other injuries were
observed. Plaintiff was did not appear to be in any distress or pain. Id., Ex. 4, p. 41. He was again
evaluated on November 27, 2009, due to his complaints of numbness and pain in his left hand which
he attributed to the alleged altercation on November 17, 2009. Id., Ex. 11. Plaintiff stated that since
November 17, 2009, his left hand and wrist had been numb and painful; however, the nurse noted
he had a previous history involving multiple complaints of numbness of his left arm and leg from a
stabbing years prior. Id., Ex. 11 & 4. Examination revealed no bruising or abrasions. Plaintiff
exhibited good pulses, a brisk capillary refill, and no difficulty performing range of motion
exercises. Id.

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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
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.
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.

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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
A.

Supervisory Liability
Plaintiff=s complaint against Warden Rouse is based solely upon the doctrine of respondeat

superior, which 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, 275 F. 3d 391, 402
(4th Cir. 2001) (no respondeat superior liability in a Bivens suit). Liability of supervisory officials
must be “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

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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 Warden Rouse that resulted in a constitutional injury.
Accordingly, his claims against Rouse shall be dismissed.
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
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.
Defendants deny that Plaintiff was assaulted. They further deny that the force used to check
that Plaintiff’s handcuffs were secure was excessive. Defendants explain that the force used was
minimal and was undertaken in order to keep the facility secure. Moreover, the force used was
necessary given Plaintiff’s refusal to comply with lawful orders to permit his handcuffs to be
examined. Additionally, the force was tempered in that Plaintiff was given an opportunity to comply

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with lawful orders before he was removed from the van and his handcuffs examined. Additionally,
when Plaintiff indicated he was suffering from an asthma attack, he was immediately taken for
medical attention. Lastly, there are no medical records that support Plaintiff’s bald claims that he was
assaulted by Defendants. In light of the foregoing, Defendants are entitled to summary judgment.
Conclusion
For the aforementioned reasons, Defendants= Motion, construed as a motion for summary
judgment, shall be granted. A separate Order follows.

/s/
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE

March 14, 2012

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