Kinlaw v. Welsh et al

Filing 24

MEMORANDUM. Signed by Judge Paul W. Grimm on 1/22/2015. (c/m 1/23/2015 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DARNELL KINLAW,

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Plaintiff

*

v

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OFFICER SEAN WELSH, et aI.,

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Civil Action No. PWG-14-1128

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***

Defendants

MEMORANDUM
Pending is defendants'
judgment, as supplemented.

motion to dismiss, or, in the alternative, motion for summary

ECF 16, 18,20 & 21. Plaintiff opposes the motion. ECF 19. Upon

review of the pleadings filed, I find a hearing in this matter unnecessary. See Local Rule 105.6
(D. Md. 2014).
Background
Plaintiff, an inmate confined at North Branch Correctional Institution (NBCI), alleges
that on June 27, 2013, he was assaulted by another inmate.

Plaintiff states that while being

escorted from the recreation cages in the segregation unit of NBCI, he heard footsteps quickly
approaching behind him. ECF 1, at 2. He states that his efforts to tum to see what was coming
were thwarted by the escorting officer.
reports being "maced"

Plaintiff was attacked by another inmate.

and simultaneously

Plaintiff

stabbed in his left jaw. The escorting officer

continued to hold plaintiff while the attacker continued to stab plaintiff. !d. Plaintiff states that
he finally was able to pull away from the escorting officer, and slipped and fell, hitting his head
on the ground, which rendered him briefly unconscious.

When he came to, he was still being

stabbed. He reports that none of the officers attempted to seize the attacker. Id.

After the attack, plaintiff was taken by correctional staff to see a nurse who advised him
he had been stabbed at least 27 times. Plaintiff indicates that during his medical treatment the
guards "joke[ d] and play[ ed] around." When the nurse advised the officers that plaintiff was in
better shape than they thought they replied, "Damn!" Id.
Plaintiff was sent to Western Correctional Institution ("WCI") infirmary without having
been provided an opportunity to shower off the mace. Plaintiff states that his wounds became
infected from the mace. Id. at 2-3.
The following day, plaintiff was seen by a physician who advised him that he should
have been taken to an outside hospital given the severity of his head injury. !d. at 3. Plaintiff
states he was stabbed in the head seven times and suffered a fractured skull. He further states
that the left side of his body has severe nerve damage and his arm "consistently goes out."
Plaintiff was prescribed Tylenol 3 and placed on bed rest. Id.
A few days after the incident, Lieutenant Smith, plaintiffs

housing unit manager, called

him to his office and advised plaintiff that his attacker was a member of the Aryan Brotherhood
and "they thought [plaintiff] was a member of a rival gang."

!d. Plaintiff states that he was

unknowingly tagged as a member of a rival gang. Plaintiff claims that the institution was aware
of a threat to rival gang affiliates and no members of the Aryan Brotherhood were to receive
recreation with any member of a rival gang. Id.
Defendants provide the following information. On June 27, 2013, Welsh was assigned to
Housing Unit 1 D Wing. ECF No. 15, Ex. 2, pp. 23, 32-34. At approximately 1:02 a.m. he was
assigned to escort inmates from the D Wing Recreation Cages back to their cells. !d. Welsh
approached inmate Jones in order to escort him and observed what appeared to be a shirt in
Jones' hand.

During the escort back to Jones' cell, Jones suddenly lunged away from Welsh,

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breaking free of Welsh and slipping his right hand out of the restraints. Id. Jones ran forward
and assaulted plaintiff with a homemade weapon. Ido, pp. 23, 26, 32-34.

Officer Michael Baer,

who was escorting inmate Rivers, observed Jones slip the handcuffs and assault plaintiff. Id., p.
24. Officers directed Jones to stop the assault and, when he failed to do so, sprayed pepper
spray, but Jones continued the assault. Ido, Ex. 2, p. 26.
Welsh ran after Jones, directing him to drop the weapon and stop the assault, Jones
refused to comply. Ido, Ex. 2, pp. 23, 32-34. Welsh applied pepper spray in order to gain control
of the inmates but Jones continued to assault plaintiff.

Inmate Rivers, no longer under escort,

approached Officer Fetters from behind. Id., Ex. 2, pp. 23,25. Welsh directed Rivers to lie down
on the ground but Rivers refused and continued toward Fetters. Id., Ex. 2, pp. 32-34. Welsh
applied pepper spray toward Rivers, who then moved to the back of the wing, where Officer
Baer secured Rivers in the D Wing recreation area. Id., Ex. 2, pp. 24-25.
Jones continued assaulting plaintiff and Welsh sprayed more pepper spray. !do

Baer

arrived and also applied several bursts of pepper spray, directing Jones to drop the weapon and
lie on the ground. Id., Ex. 2, pp. 25-26.

Jones complied.

Fetters then reapplied handcuffs to

Jones and escorted him to the B Wing education cages with the assistance of Officer Turner. Id.
After the incident, plaintiff, Jones, and Rivers all refused to provide statements regarding
the altercations. !d. pp. 35-37.
After the incident, plaintiff was evaluated by Nurse Blank, treated, and sent to the weI
infirmary. Blank determined that plaintiffs

injuries were not life-threatening and his medical

care could be managed in the infirmary. Ido, pp. 41--43.
An internal investigation of the incident failed to determine how or where Jones took
possession of the weapon.

The video from the recreation cages reportedly was of poor quality.

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Id., Ex. 2, p. 47. Lieutenant William Scrithfield interviewed Jones and inquired how he removed
the handcuffs. Jones advised that "It doesn't matter how tight you put the cuffs on me, I can get
out of them." Id., Ex. 2, pp. 8-9. Scrithfield determined that the weapon was made from a piece
of the bunk or shelving from within the housing unit. Id., Ex. 2, p. 9. Staff discovered several
bunks had been tampered with. Id., Ex. 2, pp. 9, 19,47.
Plaintiff was interviewed

on July 12, 2013, by Internal Investigation

Unit ("IIU")

Detective Robert Fagan. Plaintiff told Fagan that he did not remember what happened or know
who did it. He further stated that he was not interested in talking about the incident. !d., Ex. 2,
p.9.
Correctional

Officers Derek Baer, Scott Fetters, Sean Welsh, Michael Baer, Bruce

Crowe, and Matthew Hill submitted reports relative to the incident which were reviewed as part
of the IIU investigation.

Each reported witnessing Jones spontaneously assault Kinlaw with a

homemade weapon, the officers' efforts to stop the assault and Jones' refusal to comply with
orders until multiple bursts of pepper spray were employed by several of the responding officers.
Id., Ex. 2, pp. 7, 9, 25-31.
On July 7, 2013, plaintiff filed ARP NBCI-1812-13 complaining about the assault. Id.,
Ex. 4. Plaintiff refused to be interviewed during the ARP investigation.

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Id., Ex. 4, p. 3. Welsh

was interviewed as part of the ARP investigation and confirmed that he was assigned to escort
inmates from recreation back to their cells on the day the incident. Id., p. 3. Welsh stated that he
placed handcuffs on Jones in the prescribed manner and that he noticed Jones had a white shirt in
his hand. Welsh stated it was not unusual for inmates to carry sweaty shirts when returning from
recreation. !d., pp. 3-4, 6-7. Welsh escorted Jones from D wing recreation toward B wing with
I Plaintiff maintains that either he was not asked about the assault and/or he did not trust the officers investigating
the assault as they were the same officers who he alleges failed to protect him; therefore he did not participate in the
investigation. ECF 19, p. 2

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a "hands on escort."

ld., p. 6. Welsh was not aware prior to or during the escort that Jones was

in possession of a weapon. He reiterated that Jones quickly and violently pulled from his grasp,
slipped his right hand out of the handcuffs, and ran down D wing, producing a homemade
weapon with which he began stabbing plaintiff who was being escorted ahead of Welsh and
Jones.

!d., pp. 7-8. Welsh stated that he pursued Jones and, when he caught up with him,

applied several bursts of pepper spray.

Additional officers arrived and sprayed more pepper

spray onto the inmates; however, Jones continued his attack on plaintiff. ld. Welsh avers that he
did not assist, aid, or encourage an assault upon plaintiff by Jones or any other inmate. ld., Ex. 1,
p. 2. Welsh indicated during the ARP investigation that officers did not physically intervene in
the assault as they, too, were adversely impacted by the pepper spray. !d., Ex. 4, p. 4. He further
avers that the information he wrote in the information and incident reports regarding the assault
are true and accurate. ld., Ex. 1, p. 1.
A review of the tier video tapes confirms the officers' versions of events. Jones can be
seen slipping his hand out of the handcuff and running toward plaintiff.

Within two seconds of

Jones stabbing plaintiff, an officer applies a burst of pepper spray directly to Jones' face;
however Jones does not cease the attack on plaintiff. Jones' attack continues for approximately
two minutes while various officers surround plaintiff and Jones, direct Jones to stop the attack,
and apply multiple bursts of pepper spray to the inmates. One officer slips and falls. Other
officers are seen doubling over, and shielding their eyes, apparently from the effect of the pepper
spray in the area.2 ld., Ex. 3 as supplemented.

2

Plaintiff was provided an opportunity to review the tier tapes. ECF 20; ECF 21, Exs. 1 & 2.

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Plaintiff's allegation that his escorting officer impeded his ability to defend himself finds
no support in the record.3

While the initial attack on Plaintiff was not captured by the tier

camera, the tier camera shows Jones slipping his handcuffs and then, no more than three seconds
later, Plaintiff running from Jones, clearly having broken free from his escort off-camera.

!d.,

Ex. 3 as supplemented. Immediately thereafter, an officer is seen applying pepper spray to both
inmates in an apparent effort to stop the attack.

Id.

Plaintiff, the non-moving party, must

establish the existence of a genuine issue of material fact by presenting evidence on which a factfinder reasonably could find in his favor. Plaintiff has failed to submit any evidence to support
his claim, or to put the central fact of this case-the

alleged failure to protect-in

dispute. See

generally Gray v. Spillman, 925 F.2d 90 (4th Cir. 1991). Although the non-moving party may
rely upon a verified complaint when allegations therein are based on personal knowledge, see
Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991), Plaintiffs complaint is not verified.
Inmates housed at NBCI on Housing Unit 1 are either on disciplinary or administrative
segregation. Id., Ex. 5.

When an inmate in Housing Unit 1 is provided recreation he is

handcuffed while in his cell and then escorted by a correctional officer from the cell to the
recreation area which is a secure caged area.

Only the inmate alone or the inmate and his

cellmate are permitted in the same recreation cage. When recreation is completed the inmate is
handcuffed and then escorted by a correctional officer to his cell. Plaintiff and Jones were not
cellmates and therefore not placed in the same recreation cage for recreation.

When an inmate

has a known, verified enemy, the name is listed in Department of Public Safety and Correctional
Services records. Plaintiff and Jones were not listed as enemies. !d.

3 Plaintiff does not identify his escorting officer and has not named him as a defendant, and consequently he has not
been served with the complaint.

6

On April 24, 2013, plaintiff advised Sergeant David Barnhart that he was a member of
the Black Guerilla Family ("BGF") a security threat group ("STG"), but refused to sign the
verification form. Id. Ex. 5. Plaintiffs

DPSCS records for the offender function alert screen

indicate that on April 24, 2013, plaintiff had a flag noting he was a member of the STG BGF. Id.,
Ex. 2, pp. 10, 61-62.

Jones' offender alert screen showed that on March 20, 2013, he was

flagged as a member of the STG White Supremacists/Aryan Brotherhood "White Supr." Id., pp.
10, 74. Welsh avers that at the time of the incident he was unaware that plaintiff was a verified
member of any STG. Id., Ex. 1, p. 1.
Defendants further offer that they are not trained as health care practitioners.

Medical

care of inmates is provided by private health care contractors. Id., Ex. 1, p. 1. & Ex. 6.
Defendants did not make any decision regarding the type of health care plaintiff should receive
or whether plaintiff should receive care on site or at an outside facility. Defendants rely upon the
medical expertise of the private health care contractors. Welsh avers that he did not interfere,
delay, or deny plaintiff medical treatment. Id., Exs. 1 & 6.
Lieutenant McKenzie avers that he searched the records of NBC I Administrative Remedy
Office and there is no record plaintiff filed an ARP concerning his designation as a member of a
STG. Id., Ex. 7.

Additionally

there is no record that plaintiff filed any appeal of an

administrative remedy process decision, nor, did plaintiff file any grievance with the Inmate
Grievance Office.4 !d., Ex. 8 & 9.
Analysis
Summary judgment properly is granted when "the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter oflaw."
4

Fed. R. Civ. P. 56(c); see Meson

Plaintiff states that he did file an appeal but never received a response. ECF 19, p. l.

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v. GATX Tech. Servs. Corp., 507 F.3d 803, 806 (4th Cir. 2007) (citing Fed. R. Civ. P. 56(c)).
The party moving for summary judgment bears the burden of demonstrating that no genuine
dispute exists as to material facts. See Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286
(4th Cir. 1987). If the moving party demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to the non-moving party to identify specific facts showing
that there is a genuine issue for trial.

To satisfy this burden, the non-moving party "must

produce competent evidence on each element of his or her claim." Miskin v. Baxter Healthcare
Corp., 107 F. Supp. 2d 669, 671 (D. Md. 1999). Although the court "must draw all reasonable
inferences in favor of the non-moving party," that party "may not create a genuine issue of
material fact through mere speculation, or building one inference upon another."

Id.; see

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Runnenbaum v. NationsBank,

123

F.3d 156, 163 (4th Cir. 1997). Indeed, the existence of only a "scintilla of evidence" is not
enough to defeat summary judgment.

Anderson, 477 U.S. at 251.

Instead, the admissible

evidentiary materials submitted must show facts from which the finder of fact could reasonably
find in favor of the non-moving party. Id.
1. Respondeat Superior
Plaintiffs

complaint against Warden Shearin and Housing Unit Manager Lieutenant

Smith is based solely upon the doctrine of respondeat superior, which does not apply in

S

1983

claims. See Love-Lane v. Martin, 355 F. 3d 766, 782 (4th Cir. 2004) (no respondeat superior
liability under

S

1983). 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) (quoting Slakan v. Porter, 737 F. 2d 368,

8

372 (4th Cir. 1984)). Supervisory liability under

S

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 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 Shearin or Lieutenant Smith that resulted
in a constitutional injury, and accordingly, his claims against them shall be dismissed.
2. Failure to Protect
The Eighth Amendment prohibits "unnecessary and wanton infliction of pain" by virtue
of its guarantee against cruel and unusual punishment.

Gregg v. Georgia, 428 U.S. 153, 173

(1976). "Scrutiny under the Eighth Amendment is not limited to those punishments authorized
by statute and imposed by a criminal judgment."

De'Lonta v. Angelone, 330 F. 3d 630,633 (4th

Cir. 2003) (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)).

An inmate has an Eighth

Amendment right to be protected from violence perpetrated by other prisoners. Danser v.
Stansberry, 772 F.3d 340, 346 (4th Cir. 2014); see also Farmer v. Brennan, 511 U.S. 825, 83335 (1994). In Danser, the Fourth Circuit recently explained:
This constitutional right derives from the Supreme Court's holdings that the
treatment an inmate receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment. [Farmer, 511
U.S.] at 832-33. Because being assaulted in prison is not '''part of the penalty
that criminal offenders pay for their offenses against society,'" id. at 834
(quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)), prison officials are
responsible for "protect[ing] prisoners from violence at the hands of other
prisoners." Id at 833 (citations and internal quotation marks omitted).
!d. at 346.
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Further, the Danser court said,
An Eighth Amendment claim of this nature requires proof of two elements to
establish deprivation of a constitutional right. [Farmer, 511 U.S.] at 834;
Brown v. N C. Dep't of Corr., 612 F.3d 720, 723 (4th Cir. 2010). First, a
prisoner must establish a serious deprivation of his rights in the form of a
"serious or significant physical or emotional injury."[] Brown, 612 F.3d at
723; see also De 'lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) .... The
second element . . . requires that a plaintiff show that the prison official
allegedly violating the plaintiffs constitutional rights had a "sufficiently
culpable state of mind." Farmer, 511 U.S. at 834 (citation and internal
quotation marks omitted). In this context, the required state of mind that must
be established is a "deliberate indifference to inmate health or safety." !d.
(citations omitted).
!d. at 346-347.

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).
Prison conditions may be restrictive and even harsh, but gratuitously allowing the
beating or rape of one prisoner by another serves no legitimate penologicial
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.
Farmer 511 U.S. at 833-34 (citations omitted). A prison 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."

ld. at 837; see also Rich v. Bruce, 129 F. 3d 336, 339-40 (4th

Cir. 1997)
Here, it is undisputed that plaintiffs

injuries qualify as "significant"

under the first

element of the Farmer test. It is the second element that forms the core question and requires
plaintiff to show that defendants had a "sufficiently

culpable state of mind."

Evidence

concerning "constructive notice" of a risk of harm generally is insufficient to establish deliberate
indifference. Farmer at 840-43.
10

There simply is no indication that Welsh had advance word from the plaintiff or anyone
else that plaintiff was in particular danger of assault by Jones or any other inmate. Plaintiffs
claim that Welsh was "negligent" in failing to search Jones prior to escorting him from the
recreation cage, and/or in failing to comply with DOC policy that segregation inmates not be
permitted to carry additional clothing with them to or from recreation, is insufficient to state an
Eighth Amendment claim. Demonstration of negligence does not suffice to show a claim of
deliberate indifference.

Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999).

Further, an

official's failure to ameliorate a significant risk that he "should have perceived but did not" also
will not give rise to an Eighth Amendment Claim. Farmer, 511 U.S. at 838; lko v. Shreve, 535
F.3d 225,241 (4th Cir. 2008) ('''It is not enough that the [defendant] should have recognized'" a
substantial risk of harm. (quoting Parrish ex reI. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir.
2004)).
The uncontradicted

evidence before the Court demonstrates that plaintiff suffered a

spontaneous violent attack at the hands of Jones. Officers responded quickly and reasonably to
the attack by securing other inmates in the area, directing Jones to cease the attack, and applying
multiple bursts of pepper spray to gain Jones' compliance with the demands to cease the attack.
There simply is no evidence that officers deliberately were indifferent to a significant risk of
harm.
3.

Denial of Medical Care

In order to state an Eighth Amendment claim for denial of medical care, a plaintiff must
demonstrate that the actions of the defendants or their failure to act amounted to deliberate
indifference to a serious medical need.

See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Deliberate indifference to a serious medical need requires proof that, objectively, the prisoner

11

plaintiff was suffering from a serious medical need and that, subjectively, the prison staff were
aware of the need for medical attention but failed either to provide it or to ensure the needed care
was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).

Objectively, the medical

condition at issue must be serious. See Hudson v. McMillian, 503 U.S. 1,9 (1992) (there is no
expectation that prisoners will be provided with unqualified access to health care).

Proof of an

objectively serious medical condition, however, does not end the inquiry.
The subjective component requires "subjective recklessness" in the face of the serious
medical condition.

See Farmer, 511 U.S. at 839-40.

"True subjective recklessness requires

knowledge both of the general risk, and also that the conduct is inappropriate in light of that
risk." Rich v. Bruce, 129 F.3d 336,340 n.2 (4th Cir. 1997).

"Actual knowledge or awareness

on the part of the alleged inflicter . . . becomes essential to proof of deliberate indifference
'because prison officials who lacked knowledge of a risk cannot be said to have inflicted
punishment.'"

Brice v. Virginia Beach Correctional Center, 58 F.3d 101, 105 (4th Cir. 1995)

quoting Farmer 511 U.S. at 844. If the requisite subjective knowledge is established, an official
may avoid liability "if [he] responded reasonably to the risk, even if the harm was not ultimately
averted." Farmer, 511 U.S. at 844. Reasonableness of the actions taken must be judged in light
of the risk the defendant actually knew at the time. See Brown v. Harris, 240 F. 3d 383,390 (4th
Cir. 2000), citing Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998) (focus must be on
precautions actually taken in light of suicide risk, not those that could have been taken).
Plaintiff's injury is objectively serious; however, the evidence presented establishes that
correctional officers did not recklessly refuse treatment.

Plaintiff immediately was taken to the

medical department and assessed by medical staff, who made the determination of what type of
treatment he required and where that treatment could be administered.

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Defendants did not

interfere in that treatment plan, nor did they have responsibility to oversee the treatment plan.
Plaintiffs

claim that correctional defendants obstructed his medical care in any way is belied by

the record.
Based upon the undisputed, objective evidence in the record, defendants are entitled to
judgment in their favor. The court need not address defendants' contention that plaintiff failed to
exhaust his administrative remedies or their claims they are entitled to qualified immunity. A
separate order follows.

J
J
Paul W. Grimm
United States District Judge

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