Brightwell v. Hershberger et al
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
Civil Action No. DKC 11-3278
GREGG L. HERSHBERGER, et al.
Presently pending and ready for resolution is a motion for
(ECF No. 186).
The issues have been fully briefed, and the
court now rules, no hearing being deemed necessary.
reconsideration will be denied.
A more complete recitation of the factual background can be
(See ECF No. 183, at 2-8).
In that opinion, the
court, inter alia, granted summary judgment with regard to two
Defendants, former warden of Roxbury Correctional Institution
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).
Shaw v. Stroud, 13
A party asserting supervisory
deliberate indifference” to a problem that is “widespread.”
In the opinion on the motion for summary judgment, the court
held that Plaintiff could not meet that burden based on the
reconsideration of that portion of the decision.
(ECF No. 186).
Standard of Review
however designated, that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties ...
adjudicating all the claims and all the parties' rights and
In the United States Court
governing a motion for reconsideration of an interlocutory order
Inc., 936 F.2d 1462, 1472 (4th Cir. 1991).
While the standards
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
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
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.
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.
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)).
Plaintiff argues that it was clear error for the court to
enter summary judgment for the Supervisory Defendants.
186, at 7).
He first asserts that the court overlooked evidence
that he was assaulted twice in 2009.
(Id. at 4).
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).
These alleged assaults would not have
violation sixteen months later.
nonsupervisory Defendants on other inmates between October 2009
and his 2011 assault.
Although Plaintiff produced testimony
period, none of this testimony suggests that the Supervisory
explicitly stated that he did not file any grievances about
notification to the Supervisory Defendants - but instead wrote
letters to public officials about the incidents.
1, at 13).
(ECF No. 163-
The testimony from the other two inmates makes no
notification to the Supervisory Defendants.1
While the testimony
Plaintiff points to might create a dispute of fact over whether
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.
such assaults occurred, it does not create a dispute of fact
known that Plaintiff was at risk in February 2011.
therefore has failed to show clear error.
In his reply brief, Plaintiff adds the argument that the
Petitioner’s Lodging in Ross v. Blake, 136 S.Ct. 1850 (2016),
Defendants had notice that Housing Unit 5 staff were physically
(ECF No. 198, at 6-7).
It is unclear whether
previously available to Plaintiff, but assuming arguendo, that
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.
Plaintiff ignores that seven
of these claims were part of a single larger incident on March
(See ECF No. 188-1, at 188).
consolidated these cases into a single hearing and found for
each of the prisoners in coordinated opinions.
ALJ decision cited by Plaintiff is the Kenneth Davis decision,
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,
constructive knowledge of a pervasive risk to RCI prisoners.
mentioned, DOC terminated all of the officers involved in the
appointed Warden, and it criminally prosecuted at least some of
(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
handling assault allegations.
(See ECF No. 198, at 7).
Plaintiff’s purported 2011 assault, the lodged documents show
only one alleged assault other than his own 2009 allegations.
November 2009 and was determined not to be credible by an ALJ.
(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.
For the foregoing reasons, the motion for reconsideration
filed by Plaintiff David Brightwell will be denied.
order will follow.
DEBORAH K. CHASANOW
United States District Judge
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