Brightwell v. Hershberger et al

Filing 199

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 10/13/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DAVID BRIGHTWELL
:
v.

:

Civil Action No. DKC 11-3278

:
GREGG L. HERSHBERGER, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution is a motion for
reconsideration
(ECF No. 186).

by

Plaintiff

David

Brightwell

(“Plaintiff”).

The issues have been fully briefed, and the

court now rules, no hearing being deemed necessary.
105.6.

For

the

following

reasons,

the

Local Rule
motion

for

reconsideration will be denied.
I.

Background
A more complete recitation of the factual background can be

found

in

judgment.

the

court’s

prior

memorandum

(See ECF No. 183, at 2-8).

opinion

on

summary

In that opinion, the

court, inter alia, granted summary judgment with regard to two
Defendants, former warden of Roxbury Correctional Institution
Gregg

L.

Hershberger

and

Lt.

Gary

Winters,

both

of

whose

purported liability relied on a theory of supervisory liability.
(ECF No. 183, at 26-28).

Supervisory liability requires that

the supervisor had actual or constructive knowledge that his

subordinates were engaged in conduct that posed a “pervasive and
unreasonable risk” of constitutional injury.
F.3d 791, 799 (4th Cir. 1994).
liability

“assumes

a

heavy

Shaw v. Stroud, 13

A party asserting supervisory

burden

of

proof

in

establishing

deliberate indifference” to a problem that is “widespread.”

Id.

In the opinion on the motion for summary judgment, the court
held that Plaintiff could not meet that burden based on the
evidence

in

the

record.

Plaintiff

moves

reconsideration of that portion of the decision.
II.

here

for

(ECF No. 186).

Standard of Review
Rule

54(b) provides

that

“any

order

or

other

decision,

however designated, that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties ...
may

be

revised

at

any

time

before

the

entry

of

a

judgment

adjudicating all the claims and all the parties' rights and
liabilities.”
of

Appeals

Fed.R.Civ.P. 54(b).
for

the

Fourth

In the United States Court

Circuit,

the

precise

standard

governing a motion for reconsideration of an interlocutory order
is

unclear.

Fayetteville

Investors

v.

Commercial

Builders,

Inc., 936 F.2d 1462, 1472 (4th Cir. 1991).

While the standards

articulated

not

in

Rules

59(e)

and

60(b)

are

binding

in

an

analysis of Rule 54(b) motions, Am. Canoe Ass'n v. Murphy Farms,
Inc., 326 F.3d 505, 514 (4th Cir. 2003), courts frequently look
to

these

standards

for

guidance
2

in

considering

such

motions.

Akeva, LLC v. Adidas Am., Inc., 385 F.Supp.2d 559,

565–66 (M.D.N.C. 2005).
Public policy favors an end to litigation
and recognizes that efficient operation
requires
the
avoidance
of
re-arguing
questions that have already been decided.
Most courts have adhered to a fairly narrow
set of grounds on which to reconsider their
interlocutory orders and opinions.
Courts
will reconsider an interlocutory order in
the following situations: (1) there has been
an intervening change in controlling law;
(2) there is additional evidence that was
not previously available; or (3) the prior
decision was based on clear error or would
work manifest injustice.
Id. (citations

omitted); see

also Beyond

Sys.,

Inc.

v.

Kraft

Foods, Inc., No. PJM–08–409, 2010 WL 3059344, at *1–2 (D.Md.
Aug. 4, 2010) (applying this three-part test when evaluating a
motion for reconsideration under Rule 54(b)).
III. Analysis
A.

Clear Error

Plaintiff argues that it was clear error for the court to
enter summary judgment for the Supervisory Defendants.
186, at 7).

(ECF No.

He first asserts that the court overlooked evidence

that he was assaulted twice in 2009.

(Id. at 4).

The court

considered both of the alleged 2009 assaults, but found these
incidents to be isolated in relation to the 2011 assault.
No. 183, at 3-5, 28).
given

the

Supervisory

(ECF

These alleged assaults would not have
Defendants

3

actual

or

constructive

knowledge

that

Plaintiff

was

at

risk

of

a

constitutional

violation sixteen months later.
Plaintiff
Supervisory

also

avers

Defendants

he

produced

were

aware

evidence

of

assaults

that

the

by

the

nonsupervisory Defendants on other inmates between October 2009
and his 2011 assault.
from

himself,

there

may

David

have

Although Plaintiff produced testimony

Ebb,

been

and

Shabazz

assaults

on

Watkins

other

that

inmates

suggested

during

this

period, none of this testimony suggests that the Supervisory
Defendants

were

aware

of

these

alleged

assaults.

Plaintiff

explicitly stated that he did not file any grievances about
these

assaults

–

grievances

that

would

have

provided

notification to the Supervisory Defendants - but instead wrote
letters to public officials about the incidents.
1, at 13).
mention

at

(ECF No. 163-

The testimony from the other two inmates makes no
all

of

filing

grievances

or

notification to the Supervisory Defendants.1

any

other

manner

of

While the testimony

Plaintiff points to might create a dispute of fact over whether
1

The timing of the purported assaults alleged by Mr. Ebb
and Mr. Watkins is also unclear.
Mr. Watkins alleged that he
was punched once by some of the Defendants during his time in
Housing Unit 5 from January to May of 2011.
Clearly, if this
purported assault occurred after February 5, 2011, it could not
have provided Supervisory Defendants with notice of a risk to
Plaintiff prior to his alleged assault.
Similarly, Mr. Ebb’s
testimony indicates that he was in Housing Unit 5 for most of
2009 and that there were occasions where he heard what he
thought were assaults. There is no indication when in 2009 any
of these assaults might have occurred.
4

such assaults occurred, it does not create a dispute of fact
over

whether

the

Supervisory

Defendants

knew

or

should

known that Plaintiff was at risk in February 2011.

have

Plaintiff

therefore has failed to show clear error.
B.

New Evidence

In his reply brief, Plaintiff adds the argument that the
Petitioner’s Lodging in Ross v. Blake, 136 S.Ct. 1850 (2016),
which

Defendants

appeal,

attached

constitutes

new

to

their

evidence

motion

for

showing

that

interlocutory
Supervisory

Defendants had notice that Housing Unit 5 staff were physically
abusing inmates.
the

documents

in

(ECF No. 198, at 6-7).
the

lodging

or

the

It is unclear whether
evidence

therein

were

previously available to Plaintiff, but assuming arguendo, that
it

is

appropriately

before

the

court,

this

evidence

is

insufficient to support reconsideration.
In the lodging from Ross, Plaintiff points to accusations
from eleven inmates who claimed to have been assaulted at RCI
between 2005 and 2011.

(See id.).

Plaintiff ignores that seven

of these claims were part of a single larger incident on March
6,

2008

apparently

involving

constitutional violations.

the

same

officers

and

(See ECF No. 188-1, at 188).

similar
An ALJ

consolidated these cases into a single hearing and found for
each of the prisoners in coordinated opinions.

(Id.).

Another

ALJ decision cited by Plaintiff is the Kenneth Davis decision,
5

which

was

already

judgment papers.

discussed

by

the

parties

in

the

summary

The Davis assault also occurred in March 2008

just two days after the seven consolidated assaults mentioned in
the lodging from Ross.

(Id. at 222).

Following these assaults

in 2008, which, as Plaintiff points out, DOC did not dispute,
the

Supervisory

Defendants

quite

likely

had

actual

or

constructive knowledge of a pervasive risk to RCI prisoners.
This
should

evidence

still

Defendants’

does

have

been

evidence

not,
on

however,

notice

shows

and

of

the

show
a

ALJ

that

risk
in

Defendants

in
the

2011.

As

Davis

case

mentioned, DOC terminated all of the officers involved in the
Davis

assault

by

April

2009

when

Defendant

Hershberger

was

appointed Warden, and it criminally prosecuted at least some of
these officers.

(See id. at 234-35; ECF No. 141-2, at 183).

After being held liable for millions of dollars in damages to
these prisoners, Supervisory Defendants undoubtedly sought to
clean things up, as Plaintiff acknowledges when he notes that
Defendant

Hershberger

came

in

handling assault allegations.
In

the

nearly

three

and

adopted

new

policies

for

(See ECF No. 198, at 7).

years

between

the

Davis

case

and

Plaintiff’s purported 2011 assault, the lodged documents show
only one alleged assault other than his own 2009 allegations.
(See

ECF

No.

188-1,

at

20-27).

That

incident

occurred

in

November 2009 and was determined not to be credible by an ALJ.
6

(Id. at 26).

Even in conjunction with Plaintiff’s own 2009

claims, then, this evidence – three assault allegations by two
prisoners, each of which was deemed meritless despite following
in the wake of the 2008 assaults and each of which was more than
sixteen months before February 2011 - does not create actual or
constructive notice of pervasive and unreasonable risk in 2011.
Plaintiff’s new evidence argument thus fails.
IV.

Conclusion
For the foregoing reasons, the motion for reconsideration

filed by Plaintiff David Brightwell will be denied.

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

7