Diggs v. Balogon et al
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 10/31/2017. (kns, Deputy Clerk)(c/m 10/31/17)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Civil Action No. TDC-15-0535
RAMON BALOGUN and
Plaintiff Tyrone Diggs, an inmate in the Maryland State Correctional System, has filed
this lawsuit against Defendants Correctional Officer Ramon Balogun (“Officer Balogun”) and
Correctional Officer Shawn Holly (“Officer Holly”) pursuant to 42 U.S.C. § 1983, alleging
violations of his rights under the First and Eighth Amendments to the United States Constitution.
The Office of the Attorney General of Maryland (“the State”) has filed a Motion to Dismiss,
seeking dismissal of the claims against Defendants in their official capacities. Diggs has filed a
Motion for Default Judgment against Officer Holly, who has not filed an Answer or otherwise
responded to the Amended Complaint. For the reasons set forth below, the Motion to Dismiss is
GRANTED, and the Motion for Default Judgment is GRANTED IN PART and DENIED IN
The following facts are set forth in the Amended Complaint and are taken as true for
purposes of resolving both Motions.
Between approximately 2009 and 2012, Diggs was
incarcerated at the Maryland Correctional Institution–Jessup (“MCIJ”).
During his time at
MCIJ, Diggs earned his high school diploma, enrolled in online adult education classes at Anne
Arundel Community College, earned certificates of achievement through the Maryland
Department of Labor, Licensing, and Regulation, and completed courses in alternatives to
violence and victim awareness. He did not experience any major problems with prison guards or
other prisoners while housed at MCIJ.
On November 12, 2012, Diggs was transferred to Jessup Correctional Institution (“JCI”),
where he was required to share a cell with a member of a criminal gang, Reginald Lewis. On
December 23, 2012, Lewis was involved in a fight, outside of Diggs’s presence, that caused him
to be immediately taken to disciplinary segregation. The next day, prison staff requested that
Diggs pack up Lewis’s belongings from their shared cell. While doing so, Diggs discovered a
bottle of fermented juice behind Lewis’s locker. Diggs began to dispose of the contents by
flushing them down the toilet. A correctional officer noticed and asked Diggs to leave the cell,
handcuffed him, and seized the bottle. A field test revealed the presence of Suboxone, a
prohibited substance. Diggs was immediately taken to disciplinary segregation and received
Notices of Violation for possession of contraband, possession of an intoxicant, and possession of
an intoxicant with intent to distribute. Though Diggs was ultimately cleared of the charges, he
remained in segregation for 180 days while his disciplinary case worked its way through the
The two separate attacks that form the basis of Diggs’s complaint both occurred during
his period in disciplinary segregation. First, on February 19, 2013, Officer Balogun physically
assaulted Diggs in a JCI hallway.
According to Diggs, the attack occurred as another
correctional officer was escorting him, handcuffed, to discuss a concern about his cellmate with
other prison staff. Officer Balogun began by threatening and jeering at Diggs and mocking him
for his efforts to study the Code of Maryland Regulations (“COMAR”) and represent other
inmates in disciplinary proceedings. Officer Balogun then attacked Diggs from behind, beating
him across the head and face with a fist. Other officers intervened to restrain Officer Balogun,
who broke free and continued the assault. Diggs suffered pain and bruising from the attack.
Diggs reported the attack and filed an inmate grievance against Officer Balogun. Other
inmates and prison staff began to harass him as a result. In fact, Diggs claims that the second
assault on him, by Officer Holly, was directly related to Diggs’s reporting of Officer Balogun’s
attack on him, because Officer Holly worked the same shift as Officer Balogun and was aware of
both the assault and subsequent grievance.
While Officer Holly was working, he did not permit Diggs to take the one hour of
recreation time to which Diggs believed he was entitled under the COMAR, but he allowed other
inmates to take two or three hours of recreation time. On April 12, 2013, Diggs asked about the
discrepancy. Officer Holly became confrontational. He began to pace back and forth outside the
cell door while threatening Diggs. At one point, it appeared that Officer Holly was going to
leave, and Diggs turned his back on the cell door. In fact, Officer Holly was radioing another
correctional officer to request that he open Diggs’s cell door. Officer Holly then entered Diggs’s
cell, in violation of prison protocol requiring that two officers be present to escort an inmate
from a cell, and approached Diggs, standing so close to him that Diggs could smell his breath.
Diggs asked Officer Holly to leave twice. Instead, Officer Holly hit Diggs in the face with an
open palm and said, “I should take your ass back in the days of the ‘Cut.’” Am. Compl. ¶ 48,
ECF No. 36. Diggs fell to the ground, and during the ensuing struggle, Officer Holly punched
Diggs in the face repeatedly. When Diggs managed to escape, Officer Holly chased him up the
stairs to the Lieutenant’s office, where Officer Holly cornered Diggs and again proceeded to
attack and punch him. Diggs again broke away and ran back downstairs, holding his hands
above his head and yelling that he was not fighting.
He eventually encountered another
correctional officer, who handcuffed him. Other prison guards restrained Officer Holly. Diggs
immediately reported the incident to Major Harris. He was then taken to the medical unit, where
he was given Tylenol for a blood clot in his finger, severe pain, and bruising under his eye.
Officer Holly filed a Notice of Inmate Rule Violation falsely charging Diggs with various
violations, including assault or battery on prison staff, disobeying an order, and being in a
location without authorization. He claimed that Diggs started the fight by swinging at Officer
Holly with a closed fist, a charge that Diggs denies. The charges against Diggs were eventually
Diggs, for his part, filed a grievance against Officer Holly. Major Harris also filed an
official report summarizing Officer Holly’s attack on Diggs, which corroborated Diggs’s
account. According to Diggs, Officer Holly lost his job as a result of the assault and his
falsification of the Notice of Inmate Rule Violation. In addition, Officer Holly was charged
with, and pled guilty to, second degree assault in connection with the attack.
The grievances against the officers were each dismissed for procedural reasons, and
Diggs appealed the dismissals to the Inmate Grievance Office (“IGO”). On October 22, 2013,
the IGO held a hearing at which it determined that Diggs’s grievances were meritorious. The
ALJ awarded Diggs $500 for the assault by Officer Holly and $200 for the assault by Officer
Diggs, proceeding pro se, filed his Complaint in this Court on February 24, 2015.
Following the procedure established in In re State Prisoner Litigation, Misc. No. 00-308,
Administrative Order 2012-01 (D. Md. Apr. 27, 2012), the Clerk transmitted a copy of the
Complaint to the Correctional Litigation Unit of the Office of the Attorney General of Maryland
and the Litigation Coordinator at JCI. On March 26, 2015, the Litigation Coordinator at JCI
accepted service on behalf of Officer Balogun, but not on behalf of Officer Holly, noting that
Officer Holly had resigned in July 2014. On April 10, 2015, an Assistant Attorney General
entered an appearance on behalf of the State as an “Interested Party.” Notice, ECF No. 8.
Officer Balogun filed a pro se Answer to the Complaint. The Court directed the State to
provide under seal Officer Holly’s last known home or business address for purposes of service
of process. Using the address provided by the State, the United States Marshal served Officer
Holly on November 25, 2015.
On February 16, 2016, the Court appointed counsel to represent Diggs. On August 12,
2016, Diggs filed an Amended Complaint, naming Officer Balogun and Officer Holly as
defendants in both their individual and official capacities. Balogun again filed a pro se Answer.
Although a copy of the Amended Complaint was delivered to Officer Holly’s sealed address via
Federal Express, Officer Holly failed to file any response. The Amended Complaint was also
filed electronically on the Court’s CM/ECF system and was thus received by the State in its
capacity as an Interested Party. It was not otherwise served on the State pursuant to Federal Rule
of Civil Procedure 4.
After Diggs moved for a Clerk’s Entry of Default against Officer Holly, an Order of
Default was entered. On March 9, 2017, Diggs filed a Motion for Default Judgment against
The same day, Diggs and Officer Balogun requested a Case Management
Conference with the Court. After the Court scheduled the conference, the State submitted a
letter to the Court stating that the State does not represent Officer Balogun and Officer Holly in
their individual capacities, but asserting that the claims against Defendants in their official
capacities were barred by the Eleventh Amendment, among other defenses. The State offered to
participate in the Case Management Conference and was granted leave to do so. Counsel for
Diggs responded with a letter asserting that the State had already been served when the
Litigation Coordinator of JCI accepted service of the original Complaint on behalf of Officer
Balogun and when the State received the Amended Complaint via CM/ECF.
On March 23, 2017, the State filed the pending Motion to Dismiss seeking dismissal of
the claims against Defendants in their official capacities, and a Response to the Motion for
Default Judgment opposing a default judgment against Officer Holly in his official capacity only.
At the Case Management Conference on March 24, 2017, at the Court’s request, the Assistant
Attorney General agreed to accept service of the Amended Complaint on behalf of the State for
purposes of the official capacity claims against Defendants.
Motion to Dismiss
The State seeks dismissal of the claims against both Defendants in their official capacities
because they fail to state a claim and are barred by Eleventh Amendment immunity. Diggs
asserts that State’s defenses are untimely and have been waived.
To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint
as a whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268
(1994); Lambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).
As a threshold matter, Diggs argues that the Motion is untimely and that the defenses
referenced in the Motion have been waived. The States asserts that it was never properly served,
so its arguments that the claims against Defendants in their official capacities should be
dismissed are timely. The State is correct that it was never formally served. The original
Complaint, filed pro se, listed only Officer Balogun and Officer Holly as Defendants. Although
it did not specify whether they were named in their individual capacities or official capacities, it
sought relief only from those officers and not from the State, any state agency, or any
supervisors. Compl., ECF No. 1. It was thus fairly understood to assert claims in the officers’
individual capacities. Even if it could be construed as asserting official capacity claims, the
Litigation Coordinator of JCI, pursuant to Administrative Order 2012-01, specifically accepted
service on behalf of Officer Balogun, but not Officer Holly, and in no way indicated that she was
accepting service on behalf of the State. Indeed, the distinction made between Officer Balogun
and Officer Holly illustrates this fact, because there would be no reason to draw a distinction if
the service related to claims against officers in their official capacities.
Finally, when an
Assistant Attorney General entered an appearance, she specifically did so as an “Interested
Party,” not as a Defendant. Notice, ECF No. 8. Thus, there is no basis to claim that the entry of
an appearance constituted or acknowledged acceptance of service of the original Complaint.
Accordingly, when on August 12, 2016 Diggs’s counsel sent via CM/ECF the Amended
Complaint asserting claims against the officers in their official capacities as well, that action did
not comply with the requirements for service of an original pleading on a defendant under
Federal Rule of Civil Procedure 4.
Although not dispositive, it is notable that Diggs’s actions in litigation were inconsistent
with the position that the State had been served and had failed timely to respond to the Amended
Complaint. While Diggs filed a Motion for Default Judgment against Officer Holly for failure to
respond to the Amended Complaint, it filed no such motion against the State. Likewise, when
Diggs and Officer Balogun submitted a Joint Status Report seeking a Case Management
Conference, they acknowledged that the Assistant Attorney General had entered an appearance
as “an interested party” without reference to any alleged default by the State. Status Report at 2
n.2, ECF No. 42.
The Court effectively addressed this issue at the Case Management Conference on March
24, 2017, when it sought and received the State’s agreement to accept service on behalf of the
State on the official capacity claims in the Amended Complaint.
In doing so, the Court
implicitly determined that (1) service of the State had not yet been effected, and (2) service
would be deemed effective as of March 24, 2017. Having considered the parties’ additional
arguments, it now reaches the same conclusion. Accordingly, the State’s Motion to Dismiss
filed on March 23, 2017 was timely, such that it has not waived its claims that the State is
entitled to Eleventh Amendment immunity or that Diggs has failed to state a claim against the
Official Capacity Claims
In assessing the State’s arguments for dismissal of the official capacity claims, the Court
must turn first to the argument that Diggs has failed to state a claim because Defendants acting in
their official capacities are not “persons” within the meaning of 42 U.S.C. § 1983. Vt. Agency of
Nat. Res. v. U.S. ex. Rel. Stevens, 529 U.S. 765, 779 (2000) (finding that the question of whether
a statute permits a cause of action against states should be addressed before the question of
whether the Eleventh Amendment bars the cause of action); Power v. Summers, 226 F.3d 815,
818 (7th Cir. 2000) (noting that pursuant to Vermont Agency of Natural Resources, the district
court should have dismissed claims against state officials in their official capacities on the
grounds that they were not persons within the meaning of § 1983 rather than on Eleventh
Section 1983 makes liable “[e]very person” who, under color of state law, deprives an
individual of constitutional rights. 42 U.S.C. § 1983 (2012). Though “state officials literally are
persons,” a lawsuit against a state official in his or her official capacity is not a suit against the
official but rather is a suit against the official’s office. Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989). State officials acting in their official capacity are therefore not “persons” for
purposes of § 1983, and are not proper defendants to a § 1983 lawsuit. See id.; see also
Goodmon v. Rockefeller, 947 F.2d 1186, 1187 (4th Cir. 1991) (per curiam). The official capacity
claims must therefore be dismissed.1
Alternatively, the official capacity claims would also be barred pursuant to the Eleventh
Amendment. The Eleventh Amendment bars a suit in federal court against a state or against
state officials when “the state is the real, substantial party in interest.” Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984) (barring such a suit “regardless of whether it
seeks damages or injunctive relief”). As noted, suits against state officials in their official
capacities are the equivalent of suits against the state itself. See Will, 491 U.S. at 71 (“[A] suit
against a state official in his or her official capacity is not a suit against the official but rather is a
suit against the official’s office. As such it is no different from a suit against the State itself.”)
(internal citation omitted); see also Brandon v. Holt, 369 U.S. 464, 471-72 (1985) (stating that a
judgment against a public servant “in his official capacity” imposes liability on the entity
The Court notes that even if the State’s Motion to Dismiss were deemed untimely, this same
argument that the Amended Complaint fails to state a claim could be asserted later in a Motion
for Judgment on the Pleadings under Rule 12(c) or at trial. Fed. R. Civ. P. 12(h). Thus, one way
or the other, the official capacity claims cannot succeed.
represented). Accordingly, the Eleventh Amendment bars the claims against Officer Balogun
and Officer Holly in their official capacities. See Pennhurst, 465 U.S. at 101. The Eleventh
Amendment not only bars Diggs’s claims for damages, but also his claims for declaratory relief
against the state. See Booth v. Maryland, 112 F.3d 139, 144 (4th Cir. 1997) (stating that
declaratory relief is not available in cases where injunctive relief is not available under the
Eleventh Amendment). The Court need not, and does not, consider the State’s alternative bases
for dismissal of these claims.
Motion for Default Judgment
The Motion for Default Judgment asserts that because Officer Holly has failed to respond
to this lawsuit, and Diggs has demonstrated that Officer Holly violated his rights under the First
and Eighth Amendments, the Court should grant judgment in favor of Diggs and award damages.
The Court finds that Officer Holly was properly served with the original Complaint when the
summons and Complaint were hand-delivered to his residence, Fed. R. Civ. P. 4(e)(2)(B), and
with the Amended Complaint when it was mailed to that location, Fed. R. Civ. P. 5(a)(1)(B),
5(b)(2)(C). Because the Court has concluded that the claims against Officer Holly in his official
capacity must be dismissed, the Court considers only the claims against Officer Holly in his
Pursuant to Federal Rule of Civil Procedure 55(a), “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise, the clerk must enter the party’s default.” Under Rule
55(b)(2), after a default has been entered by the clerk, the court may, upon the plaintiff’s
application and notice to the defaulting party, enter a default judgment. Fed R. Civ. P. 55(b)(2).
A defendant’s default does not, however, automatically entitle the plaintiff to entry of a default
judgment; rather, that decision is left to the discretion of the court. United States v. Moradi, 673
F.2d 725, 727 (4th Cir. 1982) (“[T]rial judges are vested with discretion, which must be liberally
exercised, in entering [default] judgments and in providing relief therefrom.”); Dow v. Jones,
232 F. Supp. 2d 491, 494 (D. Md. 2002). The United States Court of Appeals for the Fourth
Circuit has a “strong policy that cases be decided on their merits,” United States v. Shaffer
Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993), but default judgment may be appropriate “when the
adversary process has been halted because of an essentially unresponsive party,” S.E.C. v.
Lawbaugh, 359 F. Supp. 2d 418, 421 (D. Md. 2005); see H.F. Livermore Corp. v.
Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970) (“[T]he default
judgment must normally be viewed as available only when the adversary process has been halted
because of an essentially unresponsive party.
In that instance, the diligent party must be
protected lest he be faced with interminable delay and continued uncertainty as to his rights.”).
In reviewing a Motion for Default Judgment, the court accepts as true the well-pleaded
factual allegations in the complaint relating to liability. Ryan v. Homecomings Fin. Network, 253
F.3d 778, 780–81 (4th Cir. 2001). However, it remains for the court to determine whether these
unchallenged factual allegations constitute a legitimate cause of action.
Id.; see also 10A
Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2688 (3d ed. 2010)
(“[L]iability is not deemed established simply because of the default . . . and the court, in its
discretion, may require some proof of the facts that must be established in order to determine
liability.”). If liability is established, the court must then determine the appropriate amount of
damages. See Ryan, 253 F.3d at 780-81.
As to damages, the court cannot accept as true the factual allegations of the plaintiff, but
must instead make an independent determination. See Dundee Cement Co. v. Howard Pipe &
Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983); Lawbaugh, 359 F. Supp. 2d at 422.
To do so, the court may conduct an evidentiary hearing, see Fed. R. Civ. P. 55(b)(2), or may
dispense with a hearing if there is an adequate evidentiary basis in the record from which to
calculate an award. See Pope v. United States, 323 U.S. 1, 12 (1944) (“It is a familiar practice
and an exercise of judicial power for a court upon default, by taking evidence when necessary or
by computation from facts of record, to fix the amount which the plaintiff is lawfully entitled to
recover and to give judgment accordingly.”).
Courts generally refrain from entering default judgments in multi-defendant cases
alleging joint and several liability in order to avoid inconsistent results. See Frow v. De La Vega,
82 U.S. 552, 554 (1872); United States for the Use of R.F. Hudson v. Peerless Ins. Co., 374 F.2d
942, 945 (4th Cir. 1967) (“Where the liability is joint and several or closely interrelated and a
defending party establishes that plaintiff has no cause of action or present right of recovery, this
defense generally inures also to the benefit of a defaulting defendant.” (quoting 6 James Wm.
Moore et al., Moore’s Federal Practice ¶ 55.06, at 1821 (2d ed. 1965))); Jefferson v. Briner, Inc.,
461 F. Supp. 2d 430, 434 & n.5 (E.D. Va. 2006). However, this general rule need not apply
where “different results as to different defendants are not logically inconsistent or contradictory.”
In re Uranium Antitrust Litig., 617 F.2d 1248, 1257-58 (7th Cir. 1980). Where each defendant is
potentially liable to the plaintiff based upon his own actions only, there is no possibility for
inconsistent results. See Weft, Inc. v. G.C. Inv. Assocs., 630 F. Supp. 1138, 1143 (E.D.N.C.
1986), aff’d sub nom. Weft, Inc. v. Georgaide, 822 F.2d 56, 1987 WL 36124 (4th Cir. 1987)
(unpublished). Such a circumstance would provide a basis for entry of final judgment against
one defendant only that is consistent with both Federal Rule of Civil Procedure 55(a), which
generally requires entry of default judgment against “a party” which “has failed to plead or
otherwise defend,” and Rule 54(b), which permits the court to enter judgment against one
defendant upon a finding that “there is no just reason for delay.” Fed. R. Civ. P. 55(a), 54(b); In
re Uranium Antitrust Litig., 617 F.2d at 1257-58 (citing Rules 55(a) and 54(b) in permitting
entry of default judgment against some but not all defendants).
Here, Diggs’s claims against Officer Holly are predicated upon Officer Holly’s assault
and are entirely separate from his claims against Officer Balogun, which are based upon a
different assault. The Amended Complaint does not allege that Officer Balogun played any role
in Officer Holly’s assault, or vice versa. Accordingly, a default judgment for Diggs against
Officer Holly would not be inconsistent with any potential judgment against Diggs and in favor
of Officer Balogun. Accordingly, the Court considers the Motion. See In re Uranium Antitrust
Litig., 617 F.2d at 1257-58.
Diggs alleges that Officer Holly’s April 12, 2013 assault violated his rights under the
Eighth Amendment in that Officer Holly used excessive force against him not to maintain or
restore discipline, but to maliciously and sadistically cause him harm. He claims that he was
physically injured as a result of “Officer Holly’s unnecessary and wanton infliction of pain.”
Am. Compl. ¶ 70.
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.
Const. amend. VIII. This prohibition “protects inmates from inhumane treatment and conditions
while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). The Eighth
Amendment is violated when an inmate is subjected to “unnecessary and wanton infliction of
pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173
(1976)). To establish an Eighth Amendment violation, an inmate must establish both that the
prison official subjectively “acted with a sufficiently culpable state of mind” and that the injury
or deprivation inflicted was objectively serious enough to constitute a violation. Williams, 77
F.3d at 761. On the subjective element, an inmate must show that the guards used force
“maliciously or sadistically for the very purpose of causing harm” rather than “in a good faith
effort to maintain or restore discipline.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (quoting
Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). As for the objective level of harm, although the
Eighth Amendment does not prohibit de minimis use of physical force, “[a]n inmate who is
gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely
because he has the good fortune to escape without serious injury.” See Wilkins v. Gaddy, 559
U.S. 34, 38 (2010). “When prison officials maliciously and sadistically use force to cause harm,
contemporary standards of decency always are violated.” Hudson, 503 U.S. at 9. The extent to
which injuries are modest is accounted for in the award of damages. See Wilkins, 559 U.S. at 40.
The facts in the Amended Complaint, which the Court takes as true for purposes of
deciding the Motion, see Ryan, 253 F.3d at 780-81, establish that Officer Holly, without
justification, entered Diggs’s cell, where he then attacked and beat Diggs. Officer Holly then
chased Diggs to different areas of the prison in order to continue his assault. Other officers had
to restrain Officer Holly from further harming Diggs. The assault caused Diggs to suffer a blood
clot in his finger, bruising near his eye, and “tremendous pain for roughly a week.” Am. Compl.
¶ 54. The Amended Complaint further states that the official internal report corroborated
Diggs’s account, finding that Officer Holly struck Diggs “repeatedly with a closed fist.” Id. ¶ 55.
As a result of the attack, and later falsification of a Notice of Inmate Rule Violation accusing
Diggs of instigating the assault, Officer Holly lost his job. He was charged with, and pled guilty
to, second degree assault for the attack. Officer Holly has not denied these allegations or raised
any defense against them.
With respect to the objective inquiry, Diggs’s allegation that Officer Holly beat him
repeatedly with a closed fist without justification establishes unnecessary and wanton infliction
of pain. The fact that Diggs’s injuries were not severe does not preclude this finding. See
Wilkins, 559 U.S. at 38. As for the subjective inquiry, the Amended Complaint satisfies the
requirement that that the plaintiff demonstrate that the prison official “acted with a sufficiently
culpable state of mind.” Williams, 77 F.3d at 761. At the time of the attack, Diggs was locked in
his cell. No force was necessary to “maintain or restore discipline.” Hudson, 503 U.S. at 7. The
unjustified assault described in the Amended Complaint was a malicious and sadistic attack that
violated contemporary standards of decency. See id. at 9. Diggs has thus established that
Officer Holly violated his rights under the Eighth Amendment.
Diggs further asserts that Officer Holly’s assault violated his rights under the First
Amendment because it was perpetrated in retaliation for Diggs’s filing of a grievance against
Officer Balogun, his questioning of Officer Holly’s recreation-time calculations, or both. “The
First Amendment right to free speech includes not only the affirmative right to speak, but also
the right to be free from retaliation by a public official for the exercise of that right.” Suarez
Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). To state a claim of retaliation for
exercising First Amendment rights, a plaintiff must show that (1) the plaintiff engaged in
protected First Amendment activity; (2) the defendant took some action that adversely affected
the First Amendment rights; and (3) there was a causal relationship between the protected
activity and the defendant’s conduct. See Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 499 (4th Cir. 2005).
While “the constitutional rights that prisoners possess are more limited in scope than the
constitutional rights held by individuals in society at large,” “incarceration does not divest
prisoners of all constitutional protections.” Shaw v. Murphy, 532 U.S. 223, 228-29 (2001).
Accordingly, “a prison inmate retains those First Amendment rights that are not inconsistent with
his status as a prisoner or with the legitimate penological objectives of the corrections system.”
Pell v. Procunier, 417 U.S. 817, 822 (1974). Specifically, the Fourth Circuit has held that an
inmate’s “right to file a prison grievance free from retaliation” is protected by the First
Amendment. Booker v. S.C. Dep’t of Corrs., 855 F.3d 533, 545 (4th Cir. 2017). See also
Santiago v. Blair, 707 F.3d 984, 991 (8th Cir. 2013) (finding that filing a prison grievance
alleging excessive force is protected by the First Amendment); Hill v. Lappin, 630 F.3d 468, 472
(6th Cir. 2010) (same).
Thus, Diggs’s filing of a grievance against Officer Balogun was
protected activity under the First Amendment.
As for the requirement that the defendant took an action adversely affecting First
Amendment rights, plaintiff can establish this element of retaliatory conduct if the defendant
took an action that would “deter a person of ordinary firmness from the exercise of First
Amendment rights.” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine,
411 F.3d at 500). Diggs’s assertion that Officer Holly assaulted and beat him satisfies this
requirement and indeed goes well beyond the level of severity deemed sufficiently adverse in the
Fourth Circuit. See Martin, 858 F.3d at 250 (finding that placing an inmate in administrative
segregation constitutes an adverse action).
Finally, Diggs must also demonstrate a causal connection between his First Amendment
activity and the alleged retaliatory action. See Constantine, 411 F.3d at 501. The showing can
be based on circumstantial evidence, such as evidence that the defendant was aware of the First
Amendment activity and that the retaliation took place within some “temporal proximity” of that
activity. Id. at 501. Here, Diggs has alleged that Officer Holly worked the same shift as Officer
Balogun and was aware of Officer Balogun’s attack on Diggs, and that Officer Holly had
“disdain” for Diggs’s filing of a grievance against Officer Balogun. Am. Compl. ¶ 42. Although
Officer Holly’s assault on Diggs took place approximately seven weeks after Officer Balogun’s
actions, it was in sufficient temporal proximity because it occurred during the pendency of the
grievance against Officer Balogun and during a time period when Diggs was being harassed and
threatened by prison staff and other inmates for reporting Officer Balogun’s attack. Diggs has
thus sufficiently alleged that Officer Holly’s assault was causally linked to Diggs’s grievance.
Accordingly, Diggs has alleged sufficient facts to support a default judgment against Officer
Holly for violating his rights under the First Amendment. See Martin, 858 F.3d at 250.
A court may award damages as part of a default judgment in a case brought under § 1983.
See, e.g., Webb v. Pearson, 224 F. App’x 262, 263 (4th Cir. 2007); Benny v. Pipes, 799 F.2d 489,
495 & n.8 (9th Cir. 1986). However, to arrive at a damages award, a court may not simply
accept as true the factual allegations in the complaint but must make an independent
determination of damages based on evidence in the record, whether in the form of testimony
taken during an evidentiary hearing or otherwise. Benny, 799 F.3d at 489 n.8 (noting that the
district court “properly held an evidentiary hearing before awarding damages”); Lawbaugh, 359
F. Supp. 2d at 422 (“Upon default, the well-pled allegations in a complaint as to liability are
taken as true, although the allegations as to damages are not.”).
Here, Diggs has not provided any evidence to support his claim of damages, nor has he
sought an evidentiary hearing. Where a defendant has defaulted but the amount of damages is
not readily ascertainable, courts frequently bifurcate liability and damages. See, e.g., Allison v.
Eco-Tech/Ram-Q Indus., Inc., 993 F.2d 1535, 1993 WL 177804, at *1 (4th Cir. 1993)
(unpublished) (noting that the district court granted a motion for entry of a default judgment as to
liability and held a jury trial on the issue of damages only); DIRECTV, Inc. v. Guzzi, 308 F.
Supp. 2d 788, 790-91 (E.D. Mich. 2004) (granting default judgment as to liability only and
ordering limited discovery as to damages); see also Alstom Power, Inc. v. Graham, No.
3:15CV174, 2016 WL 354754, at *3 n.5 (E.D. Va. Jan. 27, 2016) (collecting cases); Calkins v.
Pacel Corp., No. 3:07CV0025, 2008 WL 2311565, at *1 (W.D. Va. June 4, 2008) (granting
default judgment as to liability only, “holding in abeyance the determination of damages and the
entry of final default judgment”). Accordingly, having found that Officer Holly violated Diggs’s
rights under the Eighth and First Amendments, the Court will grant the Motion as to liability
only. The Motion is denied without prejudice as to damages. Within 30 days, Diggs may re-file
the Motion as to damages and include such supporting evidence as necessary to establish the
amount of damages. If appropriate, Diggs may request a hearing on the issue of damages.
For the foregoing reasons, the Motion to Dismiss will be GRANTED.
The Motion for
Default Judgment is GRANTED IN PART, as to liability, and is DENIED IN PART WITHOUT
PREJUDICE, as to damages. A separate Order shall issue.
Date: October 31,2017
THEODORE D. CHUA
United States District J
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