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)

Download PDF
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'. (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/"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. The prison warden typically reviews the inmate's ARP request and issues a 13 response. See 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 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. 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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?