Duncan v. Horning et al
Filing
112
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 9/8/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JIMMY J. DUNCAN
:
v.
:
Civil Action No. DKC 13-0448
:
D. KENNETH HORNING, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this prisoner
civil rights case is a motion to dismiss or, in the alternative,
for summary judgment filed by Defendants D. Kenneth Horning and
David Wade.
(ECF No. 98).
The issues have been briefed, and
the court now rules, no hearing being deemed necessary.
Rule
105.6.
For
the
following
reasons,
Defendants’
Local
motion,
construed as a motion for summary judgment, will be denied.
I.
Background
A.
Factual Background1
Plaintiff Jimmy Duncan (“Plaintiff”), a former inmate at
the Maryland Correctional Training Center (“MCTC”), was severely
attacked by another inmate in the evening on November 4, 2010.
The assailant, Raynard Horne, obtained a large rock from a major
1
Unless otherwise noted, the facts outlined here are
construed in the light most favorable to Plaintiff, the
nonmoving party.
A more complete recitation of Plaintiff’s
allegations can be found in the court’s prior memorandum opinion
denying Defendants’ prior motion to dismiss or, in the
alternative, for summary judgment. (See ECF No. 17, at 3-5).
excavation site on the MCTC compound, put the rock into a sock,
and beat Plaintiff with it while they were walking across the
courtyard from the gym to their housing unit.
11-13).
(ECF No. 33 ¶¶
The assault by Mr. Horne fractured Plaintiff’s skull,
resulting
in
fragments;
the
removal
Plaintiff
complications.
of
a
piece
continues
to
of
his
skull
experience
and
severe
bone
medical
(Id. ¶¶ 17-18, 24, 32; see ECF No. 74-5 ¶ 4(d)).
The excavation site from which Mr. Horne obtained the rock
was
part
of
an
ongoing
construction
project
at
MCTC
that
included the digging of trenches for an underground steam loop
to provide heat to the facility.
Nos. 74-1, at 4-6; 74-2 ¶ 2).
(ECF No. 33 ¶¶ 6-8; see ECF
Construction crews would unearth
rocks but leave them unsecured and accessible to anyone using
the
walkway
to
the
MCTC
gymnasium,
department, and various housing units.
3; 14-4; 14-5).
guarded
the
dining
hall,
medical
(ECF Nos. 14-2 ¶ 2; 14-
According to Plaintiff, corrections officers
construction
workers were present.
site
only
during
the
(ECF No. 33 ¶¶ 8-10).
daytime
while
Otherwise, the
site was left “utterly unsecured and not properly safeguarded,
and, thus, accessible to inmates.”
Plaintiff
alleges
that,
at
(Id. ¶ 9).
the
time
of
the
attack,
Defendant Kenneth Horning was the Warden of MCTC and Defendant
Wade
was
the
“Defendants”).
MCTC
(Id.
Chief
¶¶
of
3-4).
2
Security
The
(collectively,
complaint
recites
the
that
“Defendants were responsible for the operation of [] MCTC in a
safe and proficient manner, with a duty to exercise reasonable
care to protect the inmates of that institution.”
(Id. ¶ 5).
Plaintiff alleges that similar attacks occurred previously, and
that
Defendants
“had
foreknowledge
that
the
rocks
left
accessible to inmates at the subject construction site could be
used
to
cause
serious
harm,
had
already
caused
continued to pose a serious threat to the inmates.”
B.
harm,
and
(Id. ¶ 15).
Procedural Background
Plaintiff, proceeding pro se, commenced this action against
Defendants on February 11, 2013, alleging a violation of 42
U.S.C. § 1983.
(ECF No. 1).
Defendants moved to dismiss or, in
the alternative, for summary judgment (ECF No. 12), which was
denied, because there existed “a material factual dispute as to
what actions were taken by Defendants to safeguard the MCTC site
and
whether
they
had
constructive
notice
of
safety
issues
associated with the debris from the site” (ECF Nos. 17, at 7;
18).2
2
The court’s memorandum opinion, which was issued before
the decision of the Supreme Court of the United States in Ross
v. Blake, 136 S.Ct. 1850 (2016), rejecting the “special
circumstances” exception to the exhaustion of administrative
remedies requirement of the Prison Litigation Reform Act of
1995, also noted that a genuine dispute existed as to whether
special circumstances justified Plaintiff’s failure to comply
with administrative procedural requirements. (ECF No. 17, at 7
n.2).
3
The court appointed pro bono counsel for Plaintiff, who
filed an amended complaint.
(ECF No. 33).
He asserts that
Defendants deprived him of his Eighth Amendment rights when they
failed to provide reasonable protection at MCTC.
Defendants filed an answer and amended answer.
55).
(Id. ¶ 28).
(ECF Nos. 35;
Subsequently, Defendant Wade moved for summary judgment
(ECF No. 56), and the court denied the motion because there
existed “a genuine dispute of material fact regarding Defendant
Wade’s employment at the time Plaintiff was attacked, and thus
whether Defendant Wade [could] be held liable under § 1983” (ECF
Nos. 85, at 9; 86).
Defendants again moved to dismiss or, in the alternative,
for summary judgment on January 27, 20173 (ECF No. 97), and
Plaintiff submitted his opposition on May 10 (ECF No. 109).
II.
Standard of Review
A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party
is
entitled
to
judgment
3
as
a
matter
of
law.4
See
Defendants failed to submit exhibits with their motion and
amended their motion on January 30, 2017 with the exhibits
attached. (ECF No. 98).
4
Defendants move to dismiss or, in the alternative, for
summary judgment. Where the parties present matters outside of
the pleadings and the court considers those matters, as here,
the motion is treated as one for summary judgment.
See
Fed.R.Civ.P. 12(d); Gadsby by Gadsby v. Grasmick, 109 F.3d 940,
949 (4th Cir. 1997); Paukstis v. Kenwood Golf & Country Club,
Inc., 241 F.Supp.2d 551, 556 (D.Md. 2003).
4
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);
Anderson
v.
Liberty
Lobby,
Inc.,
477
U.S.
242,
(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
prevail
on
a
motion
for
summary
judgment,
the
moving
250
To
party
generally bears the burden of showing that there is no genuine
dispute as to any material fact.
248-50.
Liberty Lobby, 477 U.S. at
A dispute about a material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”
inquiry,
a
court
must
Id. at 249.
view
the
In undertaking this
facts
and
the
reasonable
inferences drawn therefrom “in the light most favorable to the
party
opposing
Zenith
Radio
the
motion,”
Corp.,
475
Matsushita
U.S.
574,
587
Elec.
Indus.
(1986)(quoting
Co.
v.
United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also
EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir.
2005), but a “party 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).
III. Analysis
A.
Claim against Defendant Wade
Defendants
first
argue
that
summary
judgment
should
be
granted in favor of Defendant Wade because he was not employed
at MCTC at the time of Plaintiff’s injury and thus cannot be
5
held liable under § 1983.
While the evidence may well lean
toward that finding, there is evidence, some of Defendants’ own
making, that make it inappropriate to grant summary judgment.
In an initial Declaration signed in 2013 in support of
Defendants’ first dispositive motion, Wade stated that he was
chief of security at MCTC in November 2010 and had knowledge of
the construction trenches.
(ECF No. 12-4).
After that motion
was denied, Defendants again moved for summary judgment, and
attached another an affidavit by Wade stating that he mistakenly
signed
the
declaration
in
July
2013
attesting
that
he
was
employed by MCTC in November 2010; he also attached employment
records
from
the
Maryland
Department
of
Public
Correctional Services (“DPSCS”) (ECF No. 56-1).
Safety
and
That motion for
summary judgment was denied because the DPSCS employment records
failed to reflect clearly Defendant Wade’s transfer from MCTC to
Roxbury
Correctional
Institution
(ECF No. 85, at 9, 13).
(“RCI”)
on
April
25,
2010.
Moreover, Plaintiff submitted a sworn
declaration based on his personal knowledge that Defendant Wade
was Chief of Security at MCTC at the time he was attacked by Mr.
Horne sufficient to raise a genuine dispute of material fact.
(Id., at 10).
In support of the pending motion, Defendants
attach an April 14, 2010, memorandum from DPSCS Division of
Correction
Commissioner
J.
Michael
Stouffer,
confirming
Defendant Wade’s reassignment from MCTC to RCI, to be effective
6
April 19, 2010.
(ECF No. 98-10).
Defendants also attach an
affidavit of Sheryl Bingaman, a DPSCS employee who serves as the
timekeeper
for
RCI
and
MCTC,
stating
that
Defendant
Wade’s
timecards reflect that he was only maintaining hours at RCI
between April 7 and November 30, 2010.
(ECF No. 98-9 ¶ 8).
Defendants attack Plaintiff’s credibility and argue that “there
is
no
credible
Wade’s
evidence
employment
status
in
the
was
record
anything
indicating
other
Defendant
than
certified MCTC employment records . . . indicate.”
what
the
(ECF No. 98-
1, at 7).
At the summary judgment stage, all reasonable inferences
should be drawn in favor of the nonmoving party, and the court
“may not make credibility determinations or weigh the evidence.”
Edell & Assocs., P.C. v. Law Offices of Peter G. Angelos, 264
F.3d 424, 435 (4th Cir. 2001).
“[I]f there clearly exist factual
issues ‘that properly can be resolved only by a finder of fact
because
they
may
reasonably
be
resolved
in
favor
party,’ then summary judgment is inappropriate.”
Emp'rs
Labor
2003)
(quoting
discrepancies
Relations
Liberty
evident
Ass'n,
285
F.Supp.2d
Lobby,
477
U.S.
in
Defendant
at
Wade's
of
either
Kress v. Food
678,
682
250).
2013
(D.Md.
Given
and
the
2015
affidavits regarding his employment at MCTC before and at the
time Plaintiff was attacked and Plaintiff’s sworn declarations
that
he
“distinctly
recalls”
seeing
7
Defendant
Wade
at
MCTC
before and shortly after he was attacked on November 4, 2010, a
genuine
defeat
dispute
of
the
pending
Defendants’
material
motion
motion
to
fact
for
grant
still
summary
summary
exists
sufficient
judgment.
judgment
to
Therefore,
in
favor
of
should
be
failed
to
Defendant Wade is denied.
B.
Exhaustion of Administrative Remedies
Defendants
granted
against
exhaust
his
next
Litigation
argue
that
Plaintiff
because
administrative
Reform
Act
of
summary
Plaintiff
remedies
1995
judgment
has
pursuant
(“PLRA”).
to
Under
the
the
Prison
PLRA,
“[i]nmates are required to exhaust ‘such administrative remedies
as are available’ before filing an action.”
McMillian v. Caple,
No. DKC-15-1882, 2016 WL 4269054, at *4 (citing 42 U.S.C. §
1997e(a));
see
also
Ross
v.
Blake,
136
S.Ct.
1850,
1858
(2016)(An inmate “must exhaust available remedies, but need not
exhaust unavailable ones.”).
Exhaustion is mandatory, and a
court may not excuse a failure to exhaust.
1856-57.
”An
inmate's
failure
to
Ross, 136 S.Ct. at
exhaust
administrative
remedies is an affirmative defense; [D]efendant bears the burden
of proving that Plaintiff had remedies available to him of which
he failed to take advantage.”
McMillian, 2016 WL 4269054, at
*4.
In Ross, the Supreme Court of the United States identified
three kinds of circumstances where an administrative remedy is
8
unavailable.
when
First, “an administrative procedure is unavailable
(despite
what
regulations
or
guidance
materials
may
promise) it operates as a simple dead end—with officers unable
or consistently unwilling to provide any relief to aggrieved
inmates.”
Ross, 136 S.Ct. at 1859.
Second, “an administrative
scheme might be so opaque that it becomes, practically speaking,
incapable of use.
In this situation, some mechanism exists to
provide relief, but no ordinary prisoner can discern or navigate
it.”
Id.
The
administrators
grievance
thwart
process
intimidation.”
In
third
circumstance
inmates
through
from
arises
taking
machination,
when
“prison
advantage
of
a
misrepresentation,
or
Id.
Maryland,
filing
a
request
for
administrative
remedy
with the warden of the prison is the first of three steps in the
Administrative Remedy Procedure (“ARP”).
(“COMAR”) 12.07.01.04.
See Md. Code Regs.
The ARP request must be filed within 30
days of the date on which the incident occurred, or within 30
days
of
the
date
the
inmate
first
gained
knowledge
of
the
incident or injury giving rise to the complaint, whichever is
later.
COMAR
prisoner
has
12.07.01.05A.
30
calendar
Commissioner of Correction.
If
days
to
the
request
file
an
is
appeal
COMAR 12.07.01.05C.
denied,
with
a
the
If the appeal
is denied, the prisoner has 30 days to file a grievance with the
9
Inmate Grievance Office.
See Md.Code Ann., Corr. Servs. §§ 10-
206, 10-210; COMAR 12.07.01.03, 12.07.01.05B.
Plaintiff concedes in his amended complaint that he never
filed an ARP request concerning Defendants’ alleged failure to
protect him from harm on November 4, 2010 (ECF No. 33 ¶ 19), but
argues
in
his
response
to
the
current
motion
for
summary
judgment that an administrative remedy was not available to him
under
Ross
for
multiple
reasons
(ECF
No.
109,
at
10-16).
Defendants did not reply to that response, but argue in their
motion filed prior to Plaintiff’s response that Plaintiff was
physically capable of filing an ARP and was familiar with the
ARP
process.
Maryland
(ECF
No.
Division
of
98-1,
at
18).
Correction
Citing
Directive
to
Ross
185-003
and
(“DOC
directive”), Plaintiff argues that an administrative remedy was
not
available
to
him
because
there
was
a
DPSCS
Investigative Unit (“IIU”) investigation pending.
at 12-13, 15).
Internal
(ECF No. 109,
Under the DOC directive, an ARP grievance may
not proceed when the IIU investigates an incident.
(Id. at
15)(“The Warden ‘shall issue a final dismissal of an ARP request
for procedural reasons when it has been determined that the
basis of the complaint is the same basis of an investigation
under
the
directed
Plaintiff
authority
of
[t]he
against
Mr.
Horne
points
out,
it
is
IIU.”).
and
not
Although
against
questionable
10
the
IIU
was
Defendants,
whether
this
is
as
a
distinction that inmates should be expected to draw.
13).
(Id. at
The complexity of the interactions among the ARP and IIU
processes is what led the Supreme Court to question whether
prisoners in Maryland truly had “available” remedies under the
PLRA.
See Ross, 136 S.Ct. at 1860-62.
While Plaintiff did
previously file two unrelated ARP complaints in 2010 and 2011,
it does not appear that those involved the IIU.
Defendants bear
the burden of proving that Plaintiff had remedies available to
him of which he failed to take advantage.
4269054, at *4.
Because
there
investigation
McMillian, 2016 WL
Defendants have failed to meet that burden.
is
a
question
foreclosed
as
to
Plaintiff’s
whether
ability
to
the
file
IIU’s
an
ARP,
Defendants’ exhaustion defense fails.
C.
Plaintiff
Protect Claim
Has
Set
Forth
Sufficiently
a
Failure
to
Defendants argue that Plaintiff has failed to satisfy the
requirements for an Eighth Amendment failure to protect claim
because there is no evidence that Defendants knew of a specific
threat
to
Plaintiff
or
that
indifference to Plaintiff’s safety.
they
exercised
deliberate
(ECF No. 98-1, at 14).
To
establish a claim under § 1983, a plaintiff must prove that a
person
acting
under
color
of
state
law
deprived
him
of
a
constitutional right or a right conferred by a law of the United
States.
Estate of Saylor v. Regal Cinemas, Inc., 54 F. Supp.3d
11
409, 416 (D.Md. 2014)(citing Wahi v. Charleston Area Med. Ctr.,
562 F.3d 599, 615 (4th Cir. 2009)).
As noted by the Supreme Court in Farmer v. Brennan, 511
U.S. 825 (1994):
Prison officials have a duty . . . to
protect prisoners from violence at the hands
of other prisoners.
Having incarcerated
persons with demonstrated proclivities for
antisocial criminal, and often violent,
conduct, having stripped them of virtually
every
means
of
self-protection
and
foreclosed their access to outside aid, the
government and its officials are not free to
let the state of nature take its course.
Prison conditions may be restrictive and
even harsh, but gratuitously allowing the
beating . . . of one prisoner 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.
Id. at 833 (internal quotations and citations omitted).
In a
failure to protect claim a prisoner must show first that the
harm he suffered was objectively serious and second that prison
officials
acted
with
deliberate
indifference.
Id.
at
834.
Deliberate indifference in the context of a failure to protect
claim
means
that
the
defendant
“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.
12
However, “[p]rison officials
who actually knew of a substantial risk to inmate health or
safety
may
be
found
free
from
liability
if
they
responded
reasonably to the risk, even if the harm ultimately was not
averted.
A prison official's duty under the Eighth Amendment is
to ensure “‘reasonable safety.’”
Id. at 844.
From the fact that Plaintiff required treatment from both
the prison medical ward and an outside hospital, it is clear
that his injuries were sufficiently serious to meet the first
requirement for his claim.
The second requirement of deliberate
indifference is more problematic.
Defendants argue that they
did not know of a risk of specific harm to Plaintiff by Mr.
Horne because Plaintiff did not report to a prison official that
he was threatened by Mr. Horne prior to the assault.
98-1,
at
11).
Defendants’
argument
fails
because
(ECF No.
a
prison
official cannot escape liability for deliberate indifference by
showing that, while he was aware of an obvious, substantial risk
to
inmate
safety,
he
did
not
know
that
the
complainant
was
especially likely to be assaulted by the specific prisoner who
eventually committed the assault.
Farmer, 511 U.S. at 483.
Defendants argue that although other inmates were harmed with
rocks, concrete, or asphalt in a sock on five occasions in the
seven
months
indication
prior
that
specifically.
an
to
Plaintiff’s
assault
would
(ECF No. 98-1, at 12).
13
assault,
happen
they
to
had
no
Plaintiff
Defendants again focus on
their
knowledge
of
specific
harm
to
Plaintiff
and
disregard
their knowledge of an obvious, substantial risk to inmate safety
generally.
The question under the Eighth Amendment is
whether prison officials, with deliberate
indifference,
exposed
a
prisoner
to
a
sufficiently substantial “risk of serious
damage to his future health,” Helling [v.
McKinney, 509 U.S. 25, 35 (1993)], and it
does not matter whether the risk comes from
a single source or multiple sources, any
more than it matters whether a prisoner
faces an excessive risk of attack for
reasons personal to him or because all
prisoners in his situation face such a risk.
Farmer, 511 U.S. at 843.
See also, Shrader v. White, 761 F.2d
975, 982 (4th Cir. 1985)(knowledge by prison officials that scrap
metal was not safeguarded and can be made into weapons, followed
by failure to take action to prevent acquisition by prisoners,
could state a claim).
Defendants
further
argue
that
they
should
not
be
held
liable because they took “numerous measures” to ensure inmates
could
not
gain
access
excavated
from
the
security
meetings
to
site,
the
construction
including
regarding
the
holding
security
site
or
regular
of
rocks
detailed
the
site;
maintaining extra personnel to supervise the site and prevent
inmate access to the site; assigning personnel to follow behind
trucks removing rocks from the site in order to pick up any
debris that might fall off the truck; and assigning personnel to
14
conduct sweeps if the grounds in order to remove any rock or
debris
found
in
the
No.98-1, at 13).
with
his
own
areas
between
the
housing
units.
(ECF
Plaintiff has rebutted Defendants’ assertions
evidence
that
the
construction
sites
were
unsupervised and unfenced in the evenings after the construction
workers left for the day and until the next morning, contrary to
Defendants’ declarations.
98-1, at 56-57, 78-80).
(ECF Nos. 14-2 ¶ 2; 14-3; 14-4; 14-5;
Plaintiff has also presented evidence
that Defendants failed to provide the “basic level of security,
control and management of inmate movement, to prevent access to
contraband weapons, and to properly secure the excavation site.”
(ECF No. 74-6, at 7).
A genuine dispute of material fact exists
as to whether Defendants had knowledge of a substantial risk to
inmate safety generally posed by the steam loop construction
site
and
prior
inmate
rock-in-a-sock
attacks,
and
whether
Defendants responded reasonably to any known risk of harm posed
by
the
construction
site.
Defendants
are
not
entitled
to
summary judgment.
D.
Qualified Immunity
Defendants
immunity
argue
because
that
“even
they
if
are
Plaintiff
entitled
has
to
stated
qualified
a
claim,
Defendants’ actions cannot be held to have violated ‘clearly
established’ legal rules.”
immunity
inquiry
involves
(ECF No. 98-1, at 19).
two
15
steps.
A
“A qualified
court
generally
considers first, whether a constitutional violation occurred,
and second, when the court finds such a violation, whether the
right violated was ‘clearly established’ at the time of the
official’s conduct.”
Williams v. Ozmint, 716 F.3d 801, 805 (4th
Cir. 2013)(citations omitted).
The burden is on the plaintiff
to prove that a constitutional violation occurred.
However, the
defendant must prove that the right was not clearly established
at the time in question.
(4th
Cir. 2007).
meager
as
to
Henry v. Purnell, 501 F.3d 374, 377–78
Defendants’ argument in this regard is so
be
non-existent.
Their
motion
refers
to
“status of the law as it relates to medical treatment.”
the
(ECF
No. 98-1, at 19).
As explained above, there are genuine issues of material
fact about Defendants’ failure to protect Plaintiff from the
risk of serious harm by another inmate.
The remaining question
is whether the right to Plaintiff’s protection from harm was
clearly established at the time of the alleged violation.
inmate’s
Eighth
Amendment
right
to
be
free
from
a
An
prison
official’s deliberate indifference to serious assaults by other
inmates
was
conduct.
clearly
Pressly
established
v.
Hutto,
at
816
the
time
of
F.2d
977,
979
Defendants’
(4th
Cir.
1987)(“The [E]ighth [A]mendment protects a convicted inmate from
physical harm at the hands of fellow inmates resulting from the
deliberate
or
callous
indifference
16
of
prison
officials
to
specific known risks of such harm.”); see also, Cox v. Quinn,
828 F.3d 227 (4th Cir. 2016).
Furthermore, as noted above, as
early as 1985, the Fourth Circuit remarked that knowledge that
materials in a prison can be fashioned into weapons, followed by
failure to secure that material, could, even without knowledge
that
actual
claim.
assaults
took
place,
state
Shrader, 761 F.2d at 982.
an
Eighth
Amendment
Defendants have not proven
that the right was not clearly established as of November 2010.
Accordingly, Defendants are not entitled to summary judgment on
the basis of qualified immunity.
E.
Plaintiff
Has
Presented
Evidence
of
Personal Involvement in Plaintiff’s Failure
Claim
Lastly,
Defendants
argue
that
they
were
Defendants’
to Protect
not
personally
involved in the allegations supporting Plaintiff’s failure to
protect claim because Defendant Wade was not employed by MCTC at
the time of the incident and Plaintiff has presented no evidence
that Defendant Horning was indifferent to any misconduct on the
part
of
liability
his
to
staff.
(ECF
exist
under
No.
§
98-1,
1983,
at
16).
there
In
must
order
for
be
personal
involvement by the defendant in the alleged violation.
Vinnedge
v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977).
The doctrine of
respondeat superior does not apply in § 1983 claims.
v. Martin, 355 F.3d 766, 782 (4th Cir. 2004).
Love–Lane
Liability of
supervisory officials must be “premised on ‘a recognition that
17
supervisory indifference or tacit authorization of subordinates’
misconduct
injuries
Baynard
may
they
v.
be
a
causative
inflict
Malone,
on
268
factor
those
F.3d
in
the
committed
228,
235
(4th
to
constitutional
their
Cir.
2001)(citing
Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984)).
above,
a
genuine
dispute
exists
as
to
care.’”
As noted
Defendant
Wade’s
employment by MCTC at the time Plaintiff was attacked by Mr.
Horne, and he earlier attested to personal knowledge of the
construction.
Accordingly, Defendant Wade is not entitled to
summary judgment on that basis.
Plaintiff does not seek to hold
Defendants liable in their supervisory capacities, but rather
for their personal involvement in failing to protect Plaintiff
from such harm.
(ECF No. 109, at 8-9).
Plaintiff’s complaint
alleges that Defendants were aware that rocks left accessible to
inmates at the steam loop construction site could be used to
cause serious harm, had already caused harm, and continued to
pose
a
serious
threat
to
the
inmates,
yet
Defendants
never
undertook any action to protect or safeguard Plaintiff from that
risk
of
harm.
Defendants’
(ECF
personal
No.
33
¶
involvement
15).
in
Plaintiff
his
failure
has
alleged
to
protect
claim, and Defendants are not entitled to summary judgment.
18
IV.
Conclusion
For the foregoing reasons, the motion for summary judgment
filed by Defendants is denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
19
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