Murphy v. Conrad et al

Filing 28

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/30/2017. (kns, Deputy Clerk)(c/m 3/30/17)

IN THE UNITEI> STATES DISTRICT COlllH ~
FOR THE DISTRICT OF MARYLANI>

r

SOlllllem Dh';s;oll

-

.-'
EDDIE MURPHY,

*

Plaintiff,

*

\'.

LEROY CONRAD, ell/I.,

*

Defendants.

Case No. G,IH-16-0H6

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

MEMORANI>UM OPINION
Plaintiff Eddie Murphy ("Plaintiff'
officers and medical staffalthc

North Branch Corrcctionallnstitution

violations of his Eighth Amcndment
or. in thc alternative.

or "Murphy"') hrings suit against various correctional
("NBC!")

IiJr allcgcd

rights. ECF No. I. Prcscntly pending is a Motion to Dismiss

for Summary Judgmcnt.

ECF No. ]0. filed on hehalfofDefcndants

CO III

Leroy Conrad. CO II Shawn Murray. CO II Dean W. Rounds. and CO II Kcvan Whctstone.
(collectively.
Surreply:'

thc "Statc Dcfcndants").2

Also pcnding is Plaintilrs

ECF No. 17. to which the State Defendants

Alicr considering

Motion t'lr Lcavc to Filc a

havc filed a Motion to Strike. ECF No.

the pleadings and exhihits. the Court concludes a hearing is unnccessary.

Loc. R. 10).6 (D. Md. 20]6). For rcasons to f(lllow, Murphy's
Surreply is grantcd. and the Statc Dcfcndants'

J

9.

See

Motion Ii)J' Leave to Filc a

Motion to Strike is dcnicd. Thc Stale Defcndants'

I Correctional officer is denoted as "CO:" and "CO II" refers to a particular title/rank. 5il.'f! ECF No. 10-J at 10.32.
~ Defendants Colin Dtte)'. r\'1.D. and Jennifer Giles. R.N. have yet to accept service. Murphy's claims <Jgainst them
~vill be considered ancr service is obtained and they respond to the Complaint.
.' Plaintiff titled his Motion: "I\pplic<llion for Leiwe to File a Response to Defendants' Reply to Plaintilrs Response
to Dercndant"s Isic] Motion 10 Dismiss or. in the Alternative. Motion for SUlIlmary Judgment:' ECF No. 17 al I.
The COlJl1 will construe Plaintiffs Application as a MOlion for Leave to File a Surreply.

Motion to Dismiss or. in thc altcrnativc.

Motion for Summary Judgmcnt.

ECF No. 10. is granted.

I. BACKGROUND
PlaintifT Eddic Murphy is incarceratcd

Maryland. In his

MUIlJhy elaims Ihal his rights under Ihc Eighth Amcndment

Complaint.

al NBCI in Cumbcrland.

wcrc violatcd on

Fcbruary 26. 2013. whenlhe

State Dcfendanls.

spraycd him while he was attcmpting
also faulls thc Statc Defendants
remcdy proccdure CARP")
compensatory

who arc corrcctional

to hang himselfin

officers at NBC!. pcpper

his jail cell. ECF NO.1 at 2-3: Murphy

for thc lack of response hc has rcccivcd to his administrativc

rcqucsts conccrning

Ihe incidcnt. Id at 4. llc is sccking

and punitivc damagcs. Id at 5.

Murphy filed his Complaim

against Defendants

Officcr Lcroy Conrad. Officcr Shawn

Murray. Officer Dean W. Rounds. and Officcr Kcvan Whetstonc (thc "Statc Dcfcndanls")
Dr. Colin Ottcy and Jcnnifer Giles. R.N. (Ihc "Mcdical
27.2016.

ECF No. 15 Defendants

Dismiss or. in the altcrnative.
liled a Responsc in Opposition.

Defendants")

with this Court on January

Conrad. Murray. Rounds. and Whctstonc filed a Motion to

fllr Summary Judgment.

lOCI' No. 10. on May 5. 2016. Murphy

ECF No. 12. and the State Defendants

filed a Rcply. ECF No.

14. Murphy has also filed a Proposed Surrcply and two additional Supplcmcnts.
ECF No. 20: ECF No. 22. Dcfcndants

~ Pin cites to documents tiled on the

bv that

and

C01ll1"s

movc 10 strikc Murphy's

lOCI' No. 17:

Proposcd Surrcply. lOCI' No. 19.

electronic tiling system (C~lIECF) refer to the page

nUlllbers

generated

sYstem.

"Murph;' previously raised essentially the same claims as those presented here against the State Defendants in
\'. IIO/mel". WDQ 13-2480 (D. Md. March 24. 20t4) (",\/1//'1'11.1' n.ln
,\1/11'1'11..1'1. Murphy also named Colin
Ottey_ M.D .. and Jennifer Giles. R.N. as Defendants. claiming that they were deliberately indifferent to his serious
mcdicalnccd
by failing to properly treat him for exposure to chemical agents. On March 21. 2014. Mur[1hy tiled a
Motion to \Vithdrav ..' the Complaint without prejudice. and the Court dismissed the case \\t'ithout prejudice three days
later. ECF No. 30: ECF No. 31. In the instant matter. both Plaintiff and the State Dc!cndants incorporate the exhibits
and declarations tiled in Afurpl(I'I. See ECF No. I ~ 8: ECF No. to-I at 2.

:c;

'\/1//'1'/(1'

2

A. Murphy's

Allegations

I. Excessive Force
Murphy states that on February 26. 2013. he was placed on"stafTaicrC
assaulting

Shannon Sweitzer.

a correctional

stafTmember.

that same day. Murphy told Officers Conrad. Whetstone.
suicidal thoughts. and requested
5. Murphy was receiving

to sec his "psych"

mental health treatment

f{JI" llegedly
a

ECF No. 1 ~ I: ECF No. 12-2 '13. On
Murray. and Rounds that he was having

who was on duty. !d ,;~ 2-3: ECI' No. 12-2'1
becausc hc allegcdly

sutTers from dcprcssion

and othcr mcntal hcalth conditions.

!d Murphy claims his cries for help went unanswcrcd

officers

and that they in fact eneouragcd

who assumcd

ECF No. 12-2'13."

it was ajokc.

His suicidal thoughts

smclls of human cxcrement
Murphy thcnmade
Offiecr Conrad ordcring

on the tier. ECF NO.1

duc to the yelling. banging. and

ECF No. 12-2'16.

him to removc the rope from around his ncck before peppcr spraying

cell. Murphy was "hanging

Murphy's

,j 5:

him to hang himself. !d '14:

the decision to hang himself: and statcs that he does not remcmbcr

him. ECF No. I ~ 8: ECI' No. 12-2'18.

to obey [Conrad's

hccame unbearable

by the

Murphy claims that whcn Officcr Conrad arrivcd at his

by [his] shirt from thc vcnt motionless"

and "unconscious

and unablc

orderJ."' Eel' No. 12-2 ~ 7. Randy Golden. the inmatc in thc ccllnext

eefl. statcs that "[wlhen

Officer Conrad came to cell I-C-2 he screamed

Murphy was hanging to thc other officers.

to

that inmate

lIe thcn ordercd Murphy to takc the rope from around

his ncck once then opencd the filOd slot and spraycd pepper spray a long burst [sic] into

In

(, Murphy SUppOI1Ssuch allegations with a declaration from inmate Randy Goldell. who stntcs that HI (1 02/26.'2016
I \\'as in cell I-C-2 next to Plaintiff Eddie Murphy whell he was complaining of being suicidal and requesting to talk
10 mental health stalTlhrough
the cell door to Otliccr Rounds. Conrad. and Murray ... hut he was taunted 10 -do
it .... ECF No. 20-1 at I. "Murphy informed these officers iJgain during lunch while. ill front of his ccllisic) and was
again laId to -do it:" It!. Murphy also attaches a declaration from inmate John A. Wagner. who states. "1 ... aver
that I've witnessed several instances \vhere guards Conrad. Murray. and Rounds. Sr. have with virulencel
IH:l1lriouslless told and encouraged sick prisoners to just kill themselves while using. depreciatory/denigrating
language. I testilY that Eulislas Dunn and Courtney G. Campbell. and Derrick D. Dirtan all attempted suicide.: having
sought psychological treatment with the aforementioned prison guards." ECF No. 21-2 at 2.

3

Murphy's

cell:'

procedures

ECF No. 20-1 '14. Murphy claims the State Defendants

before applying

pepper spray beeause a sergeant and a mental health provider were

not present before he was pepper sprayed.

ECF No. I

'i~
10-11.

Murphy claims that when he regained consciousness.

he began to lecl slaps and punches

to his Illce. ECr No. 12-2 '18. Inmate Golden also states that he "listened
wall in the back of the cell and could hear Oflieers
[Murphy]

saying 'wake up nigger!'"

[sic J and Conrad punching and slapping

ECF No. I ~ 13: ECF No. 12-2 ~ 8: ECF No. 20-1';

Irom outside the cell shows two oflicers dragging

which appears to be limp. out of his cell and down a large hallway.

Murphy was subsequently
Giles. R.N. ECF No. I

in the radiator on the

ECr No. 20-1 '15. Murphy was then dragged away by the

oflicers to the medical unit "I(lr treatment:'
6. Video l(lOtage captured

Illiled to follow proper

'I~
14.

evaluated

Murphy's

body.

ECF No. 14-1 at 10:20: I0

in the medical unit by Dr. Colin Olley and Jenniler

15. Murphy claims that he was initially denied a shower and water

to wash the pepper spray out of his eyes. Id. Murphy points to Nurse Giles' note stating that
"stalTwiped

as much as possible

spray was excessive.

Ecr

Irom[patient"s]

li'OI11

Rounds:'

ECF No. 12-2 ~ 10. He continues

that he was "in severe

the pepper spray as well as being slapped and punched by Oflicers Conrad and
and that .. [tlhis pain lasted over twenty four hours:'

2. F:xhaustion of Administrative
Murphy declarcs and maintains
rcgarding

that the amount of pepper

No. 12-2 ~ 10. Murphy states. "lICit as il'l was in a pool of lava and I

could barely breathe due to the fumes:'
pain

skin" as evidence

Id. ~ II.

I~cmcdies

that he has tricd to exhaust all administrative

the February 26. 2013 ineidcnt.

remedies

lOCI' No. I ~ J 6: ECF No. 12-2 ';'1 14-15. On March 8.

State Defendants attach video footage as Reply Exhibit I. ECF No. 14-1 at 3. Time slamps included here indicate
the time noted on the video footage in the lower right hand comer of the lhullC.

7

4

2013. Murphy lilcd an administrativc

rcmcdy procedure

see also ECF NO.1 0-4 at 5. Institutional
request. instructed

Murphy to resubmit

("'ARP") request. ECr No. 12-1 at I:

Remedy Coordinator

Jared Zais. who received the ARI'

his request with "additional

documentation

lorce is not to be used to save his life:' Id. Murphy attests that he complied
instructions

to resubmit

his ARP request with the additional

the new ARI' request in his cell door lor collection.
Defendants
them:'

ECr No. 12-2'i

It!. lie states that he len

14. and identifies

did not receive a "carbonlcss"

back. ECF No. 12-1 at 2. Murphy attcsts that he appealed

"Sudbrook

with these

as the orticers who take his ARI' requests "as if they arc going to sign and stamp

ECF No. I at 5. Murphy allegedly

response

infimnation.

that indicates

Lane:'

but reccived no reply Irom either ortiee:

copy of his request or a

to "Reistcrstown"

and to

ECF No. 1 ~ 16: ECF No. 12.1 at 2.

J Ie also claims to havc "reliled remedy requests four times" but "never received a yellow copy as
a receipt:'

ECF No. I at 4-5.
B. State Defendants' I{esponse

The State Defendants
administrative

remedies.

issue of material

move to dismiss Plaintitrs

or for summary judgment

3-10-11.

lor lililure to exhaust

in their lavor bceause there is no genuine

laet at issue. ECF NO.1 0 at 2-3. Their exhibits include declarations.

Force Report written aner the incident. the Investigator's
Murphy's

Complaint

Summary.

the Usc of

ARP records. copies of

mental health records. and portions of the DPSCS Use of Force Manual. ECr Nos. 10The State Defendants

have also included video footage from NBCI. Eel' No. 14-1."

'The Court takes judicial notice that the Department of Public Safety and Correctional Services (DPSCS) is located
on Reisterstown Road ill Baltimore. Maryland. The Inl11ale Grievance Office is located 011 Sudbrook Lane in
Pi~csvi lie. Maryland. ('(HllaCI II~rormaliol1 h,,' Agl!l1e.:t'. https://www.dpscs.state.md.lIs/contact_by_agency.shlml
(last
visited March 30. 2017).
'I The State Dclcndants' video spans si.x minutes from 10: 15:59 A.M. 10 10:21:01 A.M on February 26. 2013. II
contains one camera angle and no audio. The video appears 10 have been taken from a ceiling camera located on CTier in Housing Unit I at NBC!. The outside ofwhal is presumed to be Murphy's cell. I-C-3. can be seen on the
first floor on Ihe lower right-hand side of the screen. as are several other cells on both the first and second floors.
The inside of Murphy's cell is not visible. Between 10: 15:5'} and 10:18:50. several guards are standing in an open

5

I. Exhaustion
Following

thc incidcnt.

of Administrative

Rcmcdies

Murphy tilcd an Administrative

Rcmcdy Procedurc

requcst on March 8. }O 13. Case No. NI3CI-0563-13.

primarily complaining

his suicidc attempt by correctional

'0 ECF

and mcdical stan:

recounts the incident as it happcncd

("ARP")

about thc rcsponsc to

No. 10-4 at 5. In thc ARP. Murphy

to him:

On }/}6/}013
complainant
Eddic Murphy was placcd in a
tcmporary ccll 1-C-3 fiJr allcgcd inmatc rule violation 101. assault
on Shannon Sweitzer. LPN. At the reportcd approxilmitc
timc
10: 19 a.m .. L. Conrad. CO II was conducting a security round
when hc found complainant
hanging from thc vent. by his ncck
with a t-shirt. from about 9 fcct. Conrad gave complainant scvcral
direct ordcrs to remove the ropc from around his ncck to which
complainant was nonresponsivc duc to his semiconscious state. I I
ECF NO.1 0-4 at 5. Murphy was directed to resubmit the ARP rcquest with additional
int<lrInation. !d.: ECF 10-5 ~ 3. lie was instructed

to "provide

force is not to be used to save a life:' 1<1. The instructions
so. who brought you back to lifcT
allegcdly

received thc Warden's

documentation.
resubmit

doorway

cell and

documentation

thcn asked. "'''"Jas CPR necessary')

response advising

him to resubmit

ECF No. 10-4 at 6: Eel' NO.1 0-5 ~ 3. According
dismissed

around the door. They make several movements

with additional
to Defendants.

Murphy did not

tor t~lilure to resubmit.

near the back of the tier. At 10: 18:50. three guards arc seen walking

congregate

If

Ic/.: ECF No. 10-4 at 3. On March 13. }013. Murphy

the ARP. and the claim was procedurally

thell

that indicates that

ECF No.

briskly toward the door of Murphy's

back and forth in front of tile door. At

10: 19: 16. one guard appears to make a quick hand gesture towards the door. It is not clear whether the door is open
or closed. AI 10: 19:26. the three guards enter the cell. Two remain in the cell. while one guard backs out of the cell

and appears to cough. At 10: 19:45. 1\\'0 additional oflicers approach the sccne on the left. At 10:20: 1O. two guards
pull Murphy's limp body out orthe cell. Murphy is not moving. At 10:20:29. the guards have dragged Murphy into
the middle of the hallway. and by 10:20:38. they have dragged him out orthe tier. Nothing is seen alier 10:20:49.
Upon careful review of the footage. the video does not "utterly discredit"" Plaintilrs version of the facts. Sf!1! Scolf '-.
/farris. 550 U.S. 372. 380-8 I (:2007). nor docs it particularly support Defendants. version of the facts. given its
limited vicw_ The Court will thus construe the facts presented to the e.\tent they arc 1101 contradicted by the video_
10 Defendants
~lttach an Individual ARP Inde\ Report generated for Eddie l\.'lurphy. which demonstrates that Murphy
has filed 6t ARI' requests
II

at NBCt between

September

16. 20 I0 and April 19.2016.

ECF No. 10-4 at 4.

t\lurphy's statemeni continues on Ihe next pagc. but is not shown in the record for this casco ECF No. 10-4 at 5.

The full Ie,,! ofMurphy's

13-16 in \VDQ-13-cv-02480.

Request

for Administralive

Remedy.

NBCI-0563-13-13.

as part of Murphy's original tiling in Murphy I.

6

can be found al ECF No. I-I at

10-4 at 3: ECF No. I 0-5 ~ 3.
Derendants attest thaI Murphy did not appeal the dismissal or his ARP requesl to the
Department or Public Safely and Correctional
Procedures/lnmatc

Gricvance

Services (lWSCS) Administrative

Program Unit (ARP/IGP Unit). as required by applicable

institutional

guidelines and state regulations.

declaration

or Christina Ripps. a Correctional

In support of this asscrtion. Defendants attach the
Case Managcmcnt

lOCI' No. I 0-6 ~ 2. Ripps testifies that the "ARPIIG[p]
tiled by an inmate that is sent to DPSCS headquarters
documents

Remcdies

thc rcceipt of the appcal."ld.

Spccialist at thc ARP/IGP Unit.

Unit processes cvcry appeal of an ARP
to the Commissioner

or Correction and

She attcsts that since the February 26. 2013 incident.

Murphy has filed only two appeals with her oflice. and they were unrelated to the incidcnt. Id.
Defendants

li,rther declare that Murphy did not file an appeal with the Inmate Grievanee

Ofliee ("IGO"). as required. Derendants attach the declaration
Exeeutive

or Russell A. Neverdon. Sr ..

Director of the IGO. lOCI' No. 10-7. Ncverdon tcstifies that he has "reviewed the

records" and lilll11dthat Murphy "has not tIled any grievances

relerencing

or medical treatment on 2/26/13:' Id. ~ 3. Finally. Derendants

respond to Murphy's

that the correctional
State Defendants

an assault and denial
allegations

oflicers at NBCI stole ARP limns rrom his cell. In attached declarations.

Leroy Conrad. Shawn Murray. Dean Rounds. and Keven Whetstone testilY to

having "never discarded.

destroyed or stolen any Administrative

Rcmedies (ARPs) complaints

belonging to inmate Eddie Murphy. #306-651:' ECF No. I0-8 ~ 3: ECF No. I 0-9 ~ 3: ECF No.
10-10'i 3: ECF No. 10-11 ~ 3.
2. Excessive Force
Correctional

stafr prepared a Use or Force ("UOF") Report after the February 26. 2013

incident. It reads in ti,lI:

7

On 2/26/13 Ofliccr Leroy Conrad COil was preparing to conduct a
security round on C-Ticr in Housing Unit # J. At approximately
J 0: I ') AM. Ofliccr Conrad was alerted to Tcmporary
I lousing Ccll
J -C-3. which houscs Inmate Eddie Murphy. #306651. As Oflieer
Conrad arrived at the cell. he observed Inmate Murphy standing on
his toilet with a make shili rope tied to the cell vent and wrapped
around his neck. Otlicer Conrad gave Inmate Murphy several
direct orders to remove the rope and come to the security slot and
be handcuffed. to which Inmate Murphy did not respond. Officers
Dean Rounds and Shawn Murray responded to assist. As Oflicer
Conrad delivered a short burst of pepper spray into the cell. Inmate
Murphy stepped off the toilet causing the rope to tighten around
his neck. Oflicer Murray then called via Iiousing Unit Radio to
have the cell door opened and liJr assistance. Oflieers Conrad and
Rounds entered the cell. untied the rope from IMurphy'sj neck and
placed him in handcuffs. Alier confirming that Murphy was
breathing on his own and had a pulse. Oflicers Kevan Whetstone
and Rounds removed Inmate Murphy I[OIn the cell due to the
overwhelming effect of the pepper spray to the I lousing Unit # I
Medical Room. Alier arriving at the Iiousing Unit #1 Medical
Room. Dr. Colin Ottey evaluated Inmate Murphy and detertnined
that Inmate Murphy would need transported [sicj to the Western
Correctional
Institution
Infirmary Ii:Jr further evaluation
and
observation.
Inmate Murphy was then esc0l1cd to the WCI
infirmary without further incident. Photographs were taken by
Sergeant Walter Iser.
ECF No.

J

0-3 at 29.12 The Report determined

that physical Ii:)rce was employed 10 thwat1 an

attempt at sclf~hartn. It!.
DI'SCS Lieutenant Dale Smith investigated

the incident. ECI' No.

J

0-3 at 33. On

February 26. 20 J 3. Smith was unable to interview Murphy because he was "unresponsive:'

Id

Two days latcr on February 28. 20 J 3. Lieutenant Scan McKenzie attempted to interview
Murphy. but Murphy "rcfused to provide an oral or written statement:'

Id Lt. Smith also

revicwed video footagc capturing the incident. Id at 33-34. Lt. Smith determined
li:)rce used by correctional

I.!

The UOF Report is unsigned.

staff during the incidcnt was appropriate

the level of

and consistent with

policies and the DPSCS Use of Forcc Manual. Id at 34.13

applicable

Lieutenant
"manipulative
attempts

Bradley Wilt states in his declaration

calculated

to gain him single cell housing. Id Bruce Liller. Mental

Health Program Director at NBCL attests in his declaration
psychosis

or other serious mental illness. although

depression.

onen centering

Murphy as a

ECF No. 10-3 at 24. Lt. Wilt states that Murphy

inmate and an attention-seeker:'

to create situations

that he perccivcs

"on his displeasure

that Murphy docs not suffer from

he experiences

periodic episodes of
ECF No. 10-3 at 63-64: ,lee

with double ceiling:'

a/so ECF No. ]0-3 at 66-73. Liller states a certain level of depression

is normal in prison. ECF

No. ] 0-3 at 63. Liller claims that NBCI tries to match inmates with cell partners of their choice.
or with cell mates most likely to be compatible.
share a cell and has allegedly

Id at 64. Murphy. however. is very reluctant to

exhibited

manipulative

Murphy's

behavior intended to secure single cell

characterization

status. /d.
Lt. Wilt also disputes
"inaccurate

and exaggerated:'

ECF No. 10-3 at 25. Murphy's

ill inmates. /d. Wilt acknowledges

mentally
consistent

with what Murphy describes

arc sporadic and do not go unpunished.
responses

of the conditions

to mental health concerns

that although

tier does not house severely

there arc instanccs of behaviors

on the tier. just as there arc on other tiers. such behaviors

Id Wilt statcs that Murphy's

is inaccurate

incident. hI. ] I' an inmate informs a correctional
inmate is placed in a temporary

on the tier as

and inapplicable

interprctation

to the February 26. 2013

ofticer that he is contemplating

holding ccll under observation

of NBC I

suicide. the

until a psychologist

can evaluate

him and advise custody staff /d.
Lt. Wilt claims Murphy's

situation

at 25-26. The UOF Report demonstrates
I.l

on February 26. 2013 "was diftcrent."
that the officers were involved

The Investigator's Report is unsigned.
')

ECF No. 10-3

in an apparent

emergency requiring immediate intervention. which included use of force with pepper spray.
ECF No. 10-3 at 25. Wilt attests that "'tJhe DPSCS Use of Force Manual authorizcs employees
to 'use force to control or stop non-compliant behavior in order to ... protect sciI' or others: ...
prel"en/an inllla/e.fi"olll self:inflic/ed

harlll: ... land I rcquire a non-compliant inmate to comply

with a lawful order[.]""' Id. at 57 (emphasis added by Wilt) (citing DI'SCS UOF Manual. IV.OI.B
(3). (4). (7». Wilt states that the actions of the oftlcers involved in the ineidcnt werc eonsistcnt
with thc UOF Manual. !d. at 25. The officers were ..trying to get I'laintilTto comply with the
order to remove thc rope and submit to cufting:' !d. According to Wilt. when the !irst orticer
arrivcd at the cell. Murphy was already in a position Irom which he could harm himselfby
jumping olTthe toilct.!d. at 25-26. Wilt claims that ..'t]here was no time to call a psychologist:'
and that "ltlhe ofticers made the decision demanded by the situation. and the cnd result was that
Plaintiff sustained minimal harm:' ECF No. 10-3 at 26.

II.

STANDARD OF REVIEW
Defendants have moved to dismiss or. in the alternative. I{Jrsummary judgment. ECF No.

10- J at J. A motion styled "in the alternative" implicates the court" s discretion under Rule 12(d)
of the Federal Rules of Civil Procedure. See Kensing/lln Vol. Fire Dep/ .. Inc. ". Alon/glllllel)'
Clllln/y. 788 F.Supp.2d 43 I. 436-37 (D. Md. 20 I I). II'the Court considers matters outside the

pleadings ... the motion must be treated as one I{Jrsummary judgmcntundcr

Rule 56:' and ",a]1I

parties must be given a reasonable opportunity to present all the material that is pertinent to the
motion:' Fed. R. Civ. 1'. 12(d). Ordinarily. summary judgment is inappropriate "where the
parties have not had an opportunity for reasonable discovery:' £.1. dll Pon/ de Nelllllllrs and CII.
I'.

Klllllnlndlls/ries.

Inc .. 637 FJd 435. 448-49 (4th Cir. 201 J). Ilowever. to adequately raise the

issue that discovery is needed. the non-movant typically must lile an aftidavit or declaration

10

pursuant to Rule 56(d) explaining why, "Ii)r specified reasons, Ihel cannot prescnt facts esscntial
to justi(y [his I opposition:' without needed discovery. Fed, R, Civ. P. 56(d): see //ar,."ds Ud.

I'.

Sixty Il1/el'l1e/Domain Names. 302 F.3d 244. 244--45. /I. non-moving party's Rule 56(d) request
for additional discovery is properly denied "where the additional evidence sought fiJI'discovery
would not havc by itsd I'created a genuine issue
judgment:'

S/rag

1'.

0f

material 1~lct ufficient to defeat summary
s

fill. oni's .. Cnll'en COl/y. Coli .. 55 F,3d 943. 954 (4th Cir. 1995), Here. the

Court considers evidence outside the pleadings from both parties. thus. it will convert
Defendants' Motion into one for summary judgment. Further. although Plaintiff"request!sjthat
discovery be ordered:' he has not specilied why discovery is necessary. nor does it appear at this
juncture that additional discovery would create a genuine issue of material f~lcl.
Summary judgment is governed by Federal Rule of Civil Procedure 56(a). which
provides, in part: "[tJhe court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material f~lctand the movant is entitled to judgment as a malleI' of
law:' The Supreme Court has clarified that this does not mean that any factual dispute will defeat
the motion. See Anderson]'. Liher/y /.oh!Jy, Inc .. 477 U,S, 242. 247-48 (1986). "By its very
terms. this standard provides that the mere existence of some allegcd factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment: the
requirement is that there be no genuine issue of material fact." Ill. Thus.

"r ajmere

scinti lIa of

evidence in support of the nonmovant's position will not deleat a motion fi)r summary
judgment:'

De/rick

1'.

I'analpina. Inc.. 108 F.3d 529. 536 (4th Cir. 1997),

The court must "view the evidence in the light most I~lvorable to , , . the nonmovanl. and
draw all inferences in Ihisj favor without weighing the cvidence or assessing the witnesses'
credibility:' Delmis

I',

Columhia Colle/on Med. Or .. Inc.. 290 F.3d 639. 044-45 (4th Cir. 2002).

11

Because I'laintiffis

sell~represenled.

his submissions

Part/II,\'. 551 U,S, 89. 94 (2007). However.
obligation

the Court must also abide by the "affirmative

of the trial judge to prevent f~\ctually unsupported

procceding

to trial:'

claims and defenses

BOllcllal. 346 F,3d at 526 (internal quotation

Dre\l'ill \'. Prall. 999 F.2d 774. 778-79

determine

(4th Cir. 1993»,

the "judge's

whether he thinks the evidence

party:'

'\

whether there is a genuine issue for trial:' A

fact is gcnuine "if the evidence

return a verdict for the nonmoving

that when considering

function is not himself to weigh the evidence and

the truth of the matter but to determine

dispute about a material

from

marks omitted) (quoting

In Allder,\'oll. 477 U.S. at 249. the Supreme Court explained
motion IIJr summary judgmenl.

See Ericksoll \',

are liberally construed.

is such that a reasonable jury could

Id. at 248. Thus ... the judge must ask himscl I' not

unmistakably

f~lVors one side or the other but whether a f~lir-

minded jury could return a verdict for the [nonmoving

party

I on

the evidence

presented:'

/d. at

252. The moving party bears the burden of showing that there is no genuine issue as to any
material

fael. See Ce/olex CoW \'. Calrell. 477 U.S. 317. 322-23

material

fact exists if the nonmoving

(1986). No genuine issue of

party fails to make a sufficient

showing on an essential

clement of his or her case as to which he or she would have the burden of proof. Id. Therell)re.
on those issues on which the nonmoving
conli'ont the summary judgment

party has the burden of proof. it is his responsibility

motion with an arndavit

to

or other similar evidence showing that

there is a genuine issue for trial. Id.
III.

I)JSCUSSION

A. Exhaustion of Administnttive Remedies
The State Defendants

assert the affirmative

claims through the administrative

defense that Murphy has lailed to exhaust his

remedy process. The Prisoner Litigation

12

Refllflll Act (PLRA)

provides. in pertinent part: "No action shall be brought with respect to prison conditions under
section 1983 of this title. or any other Federal law. by a prisoner conlined in any jail. prison. or
other correctional facility until such administrative remedies as arc available are exhausted:' 42
U.S.C.

* 1997e(a).
Exhaustion is a mandatory requirement. Ross \'. Wake. 136 S. Ct. 1850. 1857 (2016):

.folies

1".

Bock. 549 U.S. 199.219 (2007). A court may not excuse a lailure to exhaust. Ross. 136

S. Ct. at 1856 (citing J/iller

I'.

Frellch. 530 U.S. 327. 337 (2000)). The claims asserted must be

dismissed if the defendant raises the aftirmative delense. and also proves that the plaintiff has
failed to exhaust available remedies. See .folies. 549 U.S. at 216-17. At the same time. the
exhaustion requirement is one of "proper exhaustion:' such that administrative remcdies must
actually be "available" to the inmatc. Wood/ill'll \'. Ngo. 548 U.S. 81.93 (2006): see also Moore
,'. Bellllef/e. 517 F. 3d 717. 725 (4th Cir. 20(8) (discussing that an administrative remedy is not
considered available if the prisoner was prevented. through no lault of his own. li'om availing
himself of it. or iI'required steps arc no longcr avai lable). Indecd.

"r w Ihen prison officials

prevcnt inmates from using the administrative process. the process that exists on paper becomes
unavailable in reality:' Ifill \', O'Briell. 387 F. App'x396.

400 (4th Cir. 2010) (citing Kaha \',

Slepp. 458 FJd 678. 684 (7th Cir. 2006)) (internal alterations omitted): see also Milchell,'.
//01'11.

318 F.3d 523. 529 (3d Cir. 2003) (holding that district court erred in failing to consider

inmate's claim that he was unable to submit a grievance because prison employees denied him
the necessary limns),
In Maryland. tiling a written grievance using an administrative remedy procedure limn
("ARI' request") is the tirst of three steps in the ARI' process. See Md, Code Regs.
12.07.01.04(A). The prison warden typically reviews the inmate's ARP request and issues a

13

response.

See 12.07.01.04(13).

Services ("DPSCS")
Administrative

The Maryland

has also provided

Remedy Coordinator

receive, acknowledge,

of Public Safety and Correctional

for a "Preliminary

Review" of ARP requests by an

("ARC"),

an employee

and direct the investigation

relating to the procedure."

designated

of complaints

by the Warden ..to

and to maintain all records

ECF NO.1 0-4 at 18,43 (citing DCDs 185.001 IV.B; 185.003

VI.A.2).]4 The ARC is empowered
or incomplete

Department

to "dismissll

and issuerl instructions

a request I()r procedural

It))' resubmitting

reasons as insuftieient

Ill. at 45 (citing DCD 185-

the request:'

003 1'.1): see a/si! ECF No. 10.4 at 48 (citing DCD 185-003 N.l).
If the ARP request is dismissed
an appeal with the Commissioner

or denied through these initial steps, the inmate must Iile

of Correction.

See Md. Code Regs. 12.07.01.05(13):

see a/sll

ECF No. 10-4 at 27-28 (citing DCD 185.002 M). If that appeal is denied or the Commissioner
fllils to respond to the grievance,
Grievance

the inmate must Iile a subsequcnt

appeal with the Inmate

Oflice. See Md. Corr. Sen's .. Code ~ 10-206: Md. Code Regs. 12.07.0 J.()4(B): .Iee

a/sll ECF No. 10-4 at 31 (citing DCD 185-002 M.14). Only alier exhausting
channels

is the inmate empowered

Corr. Servs. ~ 10-210; 42. U.S.c.

to seek judicial

review of his elaims in a court of law. See Md.

~ 1997e(a).

In this case, both sides have provided testamentary
Murphy attempted

evidence

to exhaust his remedies by filing supplemental

his ARP or by filing appeals with the Commissioner
Murphy elaims he attempted

these administrative

to supplcment

on the issue of whether

material necessary

of DPSCS and Inmate Gricvancc

to process
Ofllcc.

his ARP as dirccted, and also to Iile grievanccs

"Sudbrook

Lanc" and "Reistcrstown:'

Dcfendants

claim that Murphy did not rcsubmit

with

ECF No. I at 4; ECF No. 12-1 at 1-2. By contrast.
his rcqucst and that neither DPSCS nor thc ICiO

I~See ECF No. 10-4 at 11-67. Division of Correction
Directives (DeDs) arc "formal policy and procedures ora
general. long-term application relating 10 all aspects of correctional administration and operations:' 1£1. at 16 (citing.

oeD 1.2VIAl).

14

has receivcd appcals in his casco ECF No. 10-6: ECF No. 10-7.
Murphy rcsponds and rcitcratcs that he has altempted to submit thc ncccssary fimns, but
that the correctional officers on his floor take the forms, "as if. , , to sign and stamp them:' but
that they do not return the forms to him, ECF No. 12-1 at 2: ECF No. 12-2 at 3: ECF No, 17-2 at
2. He further states that:
When altempting to resubmit my ARPs for NnCI-0563-13.
Defendants would steal my ARPs out of my door and not return
them. nor [would they provide] a carbon copy. As a conscquencc. I
was foreeldJ to appeal to the Commissioner but never received Part
C of the appeal baek notifying me that it was received and
ultimately never heard any responsc, . ,
ECF No. 17-2 at 2. In response. the State Defendants claim that they never discarded any of
Murphy's complaints, See ECF No. 10-5: ECF No. 10-6: ECF No, 10-7: ECF No. 10-8: ECF No.
10-9: ECF No. 10-1 I.
As this Opinion addresses Defendants' Motion for Summary Judgment. the evidence is
viewed in the light most nlvorable to Murphy, Upon careful review of all the submissions. the
Court finds that there is a genuine dispute of material fact concerning whether the ARP process
was fully available to Murphy. See Oladok/ll1

I'.

AfmJ'lwul. No. Clv.A. DKC-14-463. 2014 WL

701451 I. at *6 (D, Md, Dec, 10. 2(14) (declining to grant summary judgment where there was a
"factual dispute as to whether prison grievance system was fully available to Plaintiff): Ilill \'.
O'Brien. 387 F, App'x 396. 400-01 (4th Cir. 2(10) (finding district court erred by granting
summary judgment for prison officials whcre thcre was genuine issue of material filct as to
whether delendants hindered plaintiff's ability to exhaust administrative remedies): Hill \'.
1I{~l'nes.380 F. App'x 268. 273-74 (4th Cir. 2(10) (same), Indeed. Murphy has alleged that

Defendants representcd to him that they would sign and stamp his forms on multiplc occasions.
but that instead. they did not submit them and threw thcm away, See 0 'Brien. 387 1', App'x at
15

40 I (noting that inmate alleged that he requested forms from his counselor but the counselor
allegedly refused, destroyed the forms, or failed to respond to them aner requiring plaintiff to
wait before filing a new one). Thus. the Court will not dismiss Murphy's claims or grant
summary judgment tor lack of exhaustion.
Ilowever, Murphy clears only an "initial hurdle" by presenting a genuine dispute of
material fact as to the issue of administrative cxhaustion. SI!I! SlIlifh \'. MtI/:r1t1/1l/.

'0. CIV.A.

RDB-07-1135, 2009 WL 2878538, at *5 (D. Md. Aug. 26. 2009). Despite his assertion to the
contrary, ECF No. 12-1 at 2. he is not entitled to have these j(lcts resolved by a jury. Id: SI!I! a/sli
Smal/ \'. Cl//l1l11!11
CI)' ..

728 F.3d 265, 271 (3d Cir. 2013) (agreeing with Second. Finh. Seventh.

Ninth. and Eleventh Circuits thaI no right to . - trial exists on the issue of administrative
jurv
'-.
exhaustion under PLRA). Murphy must still demonstrate ..there are triable issues of i(lct on the
asserted causes of action," Smilh. 2009 WL 2878538. at *5. Thc Court will thus proceed to
analyzc thc mcrits of Murphy's claims.
B, Exccssi\'C Furcc by Prison Officials
An inmatc' s claim of excessive lorce "is examined in the context of the Eighth
Amendment's prohibition against crucl and unusual punishment," I'I!\'ia \'. Shl!aril1. No. CIV.A.
ELI1-13-2912, 2015 WL 62900 L at *9 (D. Md. Feb. 10,2015) (citing Whil/I!Y \'. A/bas,

475

U.S. 312. 320-21 (1986)). Whether lixce used by prison officials was "cxccssivc" is detcrmined
by inquiring if"lorce was applied in a good-l(lith cffort to maintain or restore discipline. or
maliciously and sadistically to eausc harm," lIudl'lJII

I'.

McMillial1.

503 U.S. 1,6-7 (1992). The

court must look at thc nced I'llI'application of l()fee: the relationship bctween that need and the
amount afforce applied: the extent of the injury inflicted: the extcnt of the threat to the safety of
staff and inmates as reasonably perceived by prison oflicials: and any ef!(lrts made to temper the

16

severity of the response. See Whi/ley \', Alhers. 475 U.S. 311, 311 (1986) (the "Whitley" factors),
An absence of significant injury alone is not dispositive of a claim of excessive filree, Wilkins \'.
G(f(I<ZI'. 559 U,S, 34. 39 (10 I0), The extent of injury incurred is one factor indicative of whether

or not the force used was necessary in a particular situation. but if force is applied maliciously
and sadistically. liability is not avoided simply because the prisoner had the good fortune to
escape serious harm. Id. at 38.
When reviewing a claim that the usc of pepper spray or mace constituted excessh'e torce.
"it is necessary to examine the totality ofthc circumstances. including provocation. the amount
of gas used. and the purpose for which the gas is used to determine the validity of the use of tear
gas in the prison environment:'

Williams \'. Benjamin. 77 FJd 756 (4th Cir. 1996) (quoting

Slackan \'. ['or/cr. 737 F.1d 368. 371 (4th Cir. 1984). The usc of pepper spray or tear gas in
correctional facilities is "closely scrutinized" because such chemicals have "inherently dangerous
characteristics capablc of causing serious and perhaps irreparable injury to the victim:' !d.
While "it is generally recognized that 'it is a violation of the Eighth Amendment for
prison officials to use mace. tear gas or other chemical agents in quantities greater than necessary
tilr the sole purpose of infliction of pain .... Williams. 77 F.3d at 763. "not every malc\'Olent touch
by a prison guard gives rise to a fi:deral cause of action under the Eighth i\mendment." ['el'ia \'.
Shearin. 1015 WI. 629001. at *9 (D. Md, Feb. 10.1015) (citing Wilkins. 559 U.S, at 37) (internal
alterations omitted). Pepper spray or mace is constitutionally permitted in small quantities to
"control a recalcitrant inmate:' Williams. 77 F,3d at 763 (quoting hmdmanl'.

['ey/on, 370 F,1d

135. 138, n.1 (4th Cir. 1966») (intcrnal quotation marks omitted), Because "Iimitcd usc" of
pepper spray or mace "constitutes a relatively 'mild' response compared to other torms of fiJrce.
the initial application of mace indicates a .tempered' response by the prison officials." Itl.

17

Courts have recognized
chcmical agcnts may constitutc
2015 WL 62900 I. at

* I O.

"three general arcas ... [where the I use of peppcr spray or other
cxcessivc

first. an Eighth Amendment

officer used far more than a reasonable
705 F.3d

Sl/lliml1.

officer dischargcd

J

1',"'ia.

Ii.)rce in violation of the Eighth Amendment:'
violation has bcen rccognizcd

"whcn an

quantity ofa chcmical agcnt." It!.: see. e.g .. FI/l'lla('('

021. 1025 (9th Cir. 2013) (linding Eighth Amendment

1'.

violation where

can of peppcr spray until cmpty. and another officer joined in). Second. a

violation has been 1i.1Undwhere "a chemical agent was used without a prior vcrbal command:'
453 r.3d 1108. 1III (8th Cir. 2006) (iinding Eighth Amendment

See. e.g .. .1ol1l7So/l \'. BIoI/kat.

violation where inmate was maced without warning. thrown to the floor. and chokcd by thrce
officers). Third. courts have found an Eighth Amendment

violation when offieers pepper sprayed

an inmatc and thcn withheld medical treatment. See. e.g. Walker
1189 (8th Cir. 2008) (inmatc's

ccll spraycd with "super-soaker"

1'.

BOIl'ersox.

526 FJd I J 86.

uscd fi.)r riot situations and

inmate then dcnicd a showcr and c1can clothes fi.lI"
threc days).
Upon carcful revicw of all the facts prescnted herc -

including statements

statements

from fellow inmate Randy Golden. video fi.lOtage from outside Murphy's

statcments

from the responding

day of the incident -none

officers. and Plaintilrs

of these circumstances

Murphy claims. in conclusory
pcpper spray:'

correctional

from Plaintiff
cell.

medical records from the

were prcscnt in Murphy's

situation. While

fashion. that "Officcr Conrad deployed an excessive amount of

ECr No. 12-2 ~ 10. ncither the video nor the declaration

support this assertion. Thc video shows three guards congrcgated

of Randy Golden

around thc door of Murphy's

ccll for no more than twenty seconds beforc rushing in to rctricve Murphy from his undisputcd
suicide attempt. Golden states that "[Officcr ConradI scream cd that inmate Murphy was hanging
... ordered Murphy to take the rope Irom around his ncck oncc thcn opencd thc f(lOd slot and

18

sprayed pepper spray a long burst into Murphy's celL" ECF No. 20-1 ~ 4. There is no evidence.
for example. that Ofticer Conrad emptied a whole can of pepper spray. used a "super-soaker" or
other large device meant for prison riots. or otherwise expelled an excessive amount of pepper
spray into Murphy's ecll. The medical records previously attached and cited to by Murphy also
do not bear out that he was in any way injured by the pepper spray. although "he refused to open
his eyes" and was "drowsy:' Murphy I. WDQ-13-cv-02480. ECF No. I-I at 6 (noting that
patient's skin that is observed appears 10 be within normallimits).'5
Second. while Murphy attests that he "docs not remember" Oflicer Conrad's directives.
he docs not contradict Ihat which he included in his Complaint: "Officer Conrad staled Ihat he
gave plaintitT orders to take the rope from around his neck:' ECF No. I

'1 8. Inmate Golden's

declaration also indicates that Conrad gave orders before spraying Murphy. ECF No. 20-1 ~ 4.
Murphy's claims Ihal he was unconscious and already hanging when he was pepper sprayed.
even aceepled as true. do not cause the guards' actions to rise to the levcl of cruel and unusual
punishment. Nothing in the evidence suggests that the spraying was done in a "malieious or
sadistic way:' even if the Court accepts Murphy's version that he was unconscious rather than
merely nonresponsive. To the contrary. the record evinces an emergency situation in which the
guards were attempting to thwart further selt:harm by Murphy. Murphy himself acknowledges
the applicable Mentaillealth

Services Clinical Guidelines in his Supplement: "Ifan offender is

15 As discussed in note 4 sup,.a_ the parties incorporate by way of reference the exhibits tiled in Murph.\' I. and the
Court takes judicial notice of these documents .. ,' A J court may properly take judicial notice of 'matters of public
record" and other information that. under federal Rule of Evidence 20 I. cOllstitute 'adjudicative facts .... Oaih'Y \',
ThOll/as. No. CV ELH-16-3065. 2017 WL 1093277. al *1 (D. Md. Mar. 23. 20(7) (ciling Go/d/ill'!>\'. '\/a)'",. & Ci/l'
Callnciln!,fia/lill/ore. 791 F.3d 500. 50S (4th Cir. 2015)). "Pursuanl to Fed. R. Evid. 20 I. a court may take judicial
notice of adjudicative facts if they arc 'nol subject to reasonable dispute.' in that they are '( I) generally knowil

within the territorialjurisdictioll of the trial coun or (2) capable of accurate and ready determ ination by resol1 to
sources whose accuracy cannot reasonably be questioned .... Dailey. 2017 \VI. 1093277. at * I. Of relevance here. a
district counmay "properly take judicial notice of its own records:' /ti. (citing Anderson \'. Fed. lJeposit/us. COIl'"

91S F.2d I 139. I 141 n.1 (4lh Cir. 1990): "ee a/"o Dain!,' \'. Wells Fargo Bank. N.A .. No. CV TlJC-16-2755. 2017
WI. 75047S. at *3 (D. Md. Feb. 24. 2017) (laking judicial nolice ofa Deed of Trust and docket enlries in related
foreclosure and hankrupte)' actions): .II//a \'. ,\/m:\'/ood. No. CV ELH-16-0 1435. 2017 WL 633392. at *7 (D. Md.
Feb. 15.2017) (taking judicial notice or"submissions in earlier court cases").
19

successful in causing severe harm to him/hersclf. the \irst responder to the scene shall take
whatever steps the situation demands to protect the oflcnder from further harm:' Eel' No. 22.
While Murphy disagrees with the use of force in this situation. he does not dispute that lirst
responders are instructed to take whatever steps necessary to protect the offcnder from further
harm.
Third. although Murphy claims he was initially denied a shower for 30 minutes. it is also
undisputed that the oflicers brought him directly to the medical unit alier being sprayed. where
he was examined by Dr. Otley and a nurse wiped the pepper spray off of him. lei. ~'114-15:

H,

see

Wheeler \'. Fri/::. No. Clv.A. RBD-14-2727. 2015 WI. 4485436. at *12 (D. Md. July 20. 2015)
(granting summary judgment for Defendants where inmate was pepper sprayed but Delcndants
immediately brought inmate to medical staff for evaluation. and inmate had no resulting physical
injuries). The medical staff also kept Murphy under close observation lor several hours. Id: ECF
No. I

'i

15. In sum. the 1~lctS
here are readily distinguishable from circumstances in which courts

have lound an Eighth Amendment violation.
Moreover. the IJ'hi/ley factors also counsel in favor of Defcndants. By placing a rope
around his neck that was tied to a vent and standing on a toilet. Murphy placed himself in
immediate danger of harm. Murphy's refllsal or inability to comply with Oflicer Conrad's
multiple orders to remove the rope. ECF No. 10-4 at 5. further escalated the necessity

\(H'

immcdiate action to prevent him Irom scrious or mortal harm. The I~lctthat Murphy stepped off
thc toilet while wearing the rope. ECF No. 10-3 at 29. corroborates that immediate action was
warranted.

17

Thc UOF Report indicates the oflicers administered a brief burst of spray to ihwart

leo See aI,\'() Medical Report from Dr. Colin Oltey and Nurse Notes from Jennifer Giles. R.N .. attached to Plaintiffs
Complaint in ,1/111'''/(1'/. WD<)-13-2480 at ECF No. I-I at 6-10 (stating that at 12:00 p.m. "Ipaticntljumpcd up off

the !lOOf. felt his way over to the shower and proceeded to wash himself"")
17 Murphy contends that he "was not sttlnding on the toilet when Ollicer Conrad approached my cell. but was truly

20

Murphy's

attempt to hang himselC ECF NO.1 0-3 at 29. llence. there was a strong relationship

between the need and amount of force applied.
Under the circumstances
spray. in a good-faith
and then tempered
handcuffs.

they acted with malicious

Murphy Ii'om killing himselC

actions violate DPSCS policy or procedure.
to Murphy. the Complaint

force. No genuine issues of material
summary judgment

IX

and serious sell~hann.

once securing him in

or sadistic animus to cause harm. and

Further. Murphy l~lils to show the

Even when the Incts are viewed in the light

Inils to state an Eighth Amendment

claim of excessive

Inct arc in dispute. and the State Defendants

arc entitled to

in their lnvor as a matter of law. This matter shall proceed as to Colin Oltey.

M.D. and JennifCr Giles. R.N .. pending acceptance
C. Motion

of service.

for Leave to File Surreply

Finally. the Court must address Murphy's
10.2016.

immediate

the action by taking him for medical treatment

There is no evidence

most lnvorable

applied force. a brief burst of pepper

effort to prevent Murphy from inllieting

in Inct. they prevented
officers'

here. the State Defendants

Murphy liled his Proposed

Motion for Leave to File a Surreply.

Surreply to Defendants'

On June

Reply. which ineluded an affidavit

by inmate John A Wagner. ECF No. 17: Eel' No. 17.3. In their Motion to Strike. Defendants
argue the exhibit is an unsigned!"

and "un veri lied" letter. and thus it fails to satisl~. Fed. R. Civ.

hanging and unconscious:" ECF No. 12-2~; 12. However. Murphy docs 110t dispute that he tried 10 hang himself:
thus whether Murphy was still standing on the toilet or already hanging by the time the guards rcached his cell is
ultimatelv immaterial.
III Murph)"s
nllegations that the guards encouraged him to hang himself: while objectionable and concerning to the
Court. do not render the pepper spraying an Eighth Amendment violation. first. the record does not demonstrate that
any such COllllllents were made imlllediately prior to Murphy's suicide attempt - as the video clearly shows guards
rushing over to Murphy's cell. rather than communicating
with him for an extended period of time and taunting him.
Second. even if the guards acted with subjective ill \\"ill by making such cOlllmC'nts to Murphy. it does not 1"0110\\
that they acted with suhjective ill will to thwan his later suicide altempt with physical force. Similarly. no
reasonable juror could lind that the guards slapping or hitting Murphy \\hile he was unconscious was a malicious or
sadistic action: rather. the only reasonahle inference was that they were doing so in an efton to revive Murphy. See
Eel' No. 10-3 at 80. 93.
1'1 Although
the affidavit is handwrilten. and the signature line hears John A. Wagner's printed name. it docs not
appear to bear an actual signatufe. ECF No. 17-3 at 2.

21

P. 56(c)(4).

which rcquires that supporting

affidavits

19. Murphy responds

in Opposition.

prepared by Wagner.

ECF No. 21 at 3. Murphy attachcs Wagncr's

Wagner prepared
also re-attaches

testifying

be bascd on admissible

that Wagner's

what he believed to be appropriate
a new handwritten

affidavit

verilication

eopy of Wagner's

affidavit.

cvidence.

ECF No.

was in fact authentic

dcclaration.

affirming

of his affidavit.

and

that

and Murphy

which bears Wagner's

signature.

lOCI' No. 21-1 at I: ECF No. 21-12.
As a threshold

mattcr. "[g]enerally.

an affidavit

summary judgment

must prcscnt evidenee

testilYing in court'"

filed in opposition

Enms \'. T<.'c!mologi<.'s Applicaliolls

Cir. 1996). "Federal

Rule of Civil Procedure

on summary judgmcnt
s<.'<.'
also IVil/iams

contain admissible

\'. Griffin

to summary judgment
finds that Wagner's

in substantially

the samc limn as ifthc afliant werc
')<'I'\'i('<.'

56(c) specifically

requires that affidavits

motion must be admissible
affidavit.

affirm under the penalties

lOCI' No. 17-3. is in substantially

ofpe~jury

handwritten

pursuant to 28 U.S.c.
information.

at 2. The infimnation

knowledge

is also based on Wagner's

North Branch Correctional
allegations

personal

of the Division of Correction
Institutional

made by Mr. Murphy'"

submitted

Id:

in opposition

and based on personal knowledge).

the Ii)regoing paper are true to the best of my knowledge.

custody of the Commissioner

submittcd

cvidence and be based on personal knowledge'"

the affiant were testifYing in court. Mr. John A. Wagner's
solemnly

CO/llpallY, 80 F.3d 954. 962 (4th

952 F.2d 820. 823 (4th Cir. 1991) (evidence

handwritten

to a motion for

The Court

the same limn as if

affidavit states. "I do

*

1746. that the contents of.
and belief." ECF No. 17-3

as a "prisoner

in thc

(DOC). who has been housed at the

(NBCl) since July 27. 2010" and "familiar

Id ~ 1.20 Thus. the aflidavit is not inadmissible

with the
on the

.20Contrary to Defendants' assel1ion that the aflidavit is based 011 "hearsay:' Wagner testifies to examples in \l,ihich
he has \vitnessed guards .'taunting psyche prisoners:' ECF No. 17-3 at I; see Uniled Stales l', Guerrero-Damian. 241
F. App'x 17 J. 173 Hlh CiT. 2007) (noting thai a statement is not hearsay irit is offered to show the cncet on the
listener).

22

evidentiary grounds Defendants suggest.
Second. as to Plaintiffs subsequcnt filings. Loc. R. I05.2(a) providcs that "luJnlcss
othcrwisc ordered by the court. surreply memoranda arc not permitted to be tiled. Surreplies may
be permitted when the moving party would be unable to contest matters presented to the court for
the tirst time in the opposing party's reply:' Khoury

1'.

Me.leITe. 268 F. Supp. 2d 600. 605 (D.

Md. 2003) (internal citations omitted). Neither side has briefed whether new arguments were
raised in Defendants' Reply. or whether Murphy would have been able to obtain Wagner's
affidavit before filing his Response in Opposition. Given Murphy's pro se status and the Court's
overall disposition of the Motion. the Court will usc its discretion to grant Plaintitrs

Motion for

Leave to File a Surreply. ECF No. 17. and deny Defendants' Motion to Strike. ECr No. 19. See
Aure! \'. Wexjiml IIeuilh Sources.

Inc .. No. CV ELlI-16-1293. 2016 WL 6095919. at *6 (D. Md.

Oct. 18. 2016) (using discretion to deny prison medical officials' motion to strike inmate' s
second opposition and supporting affidavit).
Additionally. Murphy has also attempted to supplement his Complaint and Response in
Opposition by tiling another affidavit from inmate Randy Golden. ECr No. 20-1: portions of the
Mental Health Clinical Guidelines. Ecr No. 22: and a citation to a Maryland Division of
Correction directive regarding use of chemical agents. ECF No. 26. The timc for supplementing
his pleadings has passed. and Murphy has not sought Icave of Court or consent Ii'om opposing
counsel befi)re prescnting these additional materials. Ilowevcr. again recognizing Murphy as a
pro se litigant. the Court has also rcvicwcd these materials and has includcd thc infi.mnation

whcre relevant.

IV.

CONCLUSION
For the foregoing

granted. and Defendants'

reasons.

Plaintiffs

Motion for Leave to Filc a Surreply.

ECF No. 17. is

Motion to Strikc. ECF No. 19. is dcnicd. The State Defendants'

to Dismiss. or in thc altcrnative.

fi.)r Summary

Judgmcnt.

Motion

ECF NO.1 O. is granted. A scparate

Order follows.

Date: Mareh"30.

~d-

2017

GEORGE J. HAZEL

Unitcd Statcs District Judgc

24