Murphy v. Conrad et al
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>
LEROY CONRAD, ell/I.,
Case No. G,IH-16-0H6
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
rights. ECF No. I. Prcscntly pending is a Motion to Dismiss
for Summary Judgmcnt.
ECF No. ]0. filed on hehalfofDefcndants
Leroy Conrad. CO II Shawn Murray. CO II Dean W. Rounds. and CO II Kcvan Whctstone.
thc "Statc Dcfcndants").2
Also pcnding is Plaintilrs
ECF No. 17. to which the State Defendants
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'
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 \'. '\/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").
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
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:
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
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
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
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
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
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
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
for Leave to File Surreply
Finally. the Court must address Murphy's
the action by taking him for medical treatment
There is no evidence
applied force. a brief burst of pepper
effort to prevent Murphy from inllieting
in Inct. they prevented
here. the State Defendants
Murphy liled his Proposed
Motion for Leave to File a Surreply.
Surreply to Defendants'
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
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.
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.
which rcquires that supporting
19. Murphy responds
prepared by Wagner.
ECF No. 21 at 3. Murphy attachcs Wagncr's
be bascd on admissible
what he believed to be appropriate
a new handwritten
eopy of Wagner's
was in fact authentic
of his affidavit.
which bears Wagner's
lOCI' No. 21-1 at I: ECF No. 21-12.
As a threshold
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
to summary judgment
finds that Wagner's
the samc limn as ifthc afliant werc
requires that affidavits
motion must be admissible
affirm under the penalties
lOCI' No. 17-3. is in substantially
pursuant to 28 U.S.c.
at 2. The infimnation
is also based on Wagner's
North Branch Correctional
of the Division of Correction
made by Mr. Murphy'"
and based on personal knowledge).
the Ii)regoing paper are true to the best of my knowledge.
custody of the Commissioner
cvidence and be based on personal knowledge'"
the affiant were testifYing in court. Mr. John A. Wagner's
CO/llpallY, 80 F.3d 954. 962 (4th
952 F.2d 820. 823 (4th Cir. 1991) (evidence
to a motion for
the same limn as if
affidavit states. "I do
1746. that the contents of.
and belief." ECF No. 17-3
as a "prisoner
(DOC). who has been housed at the
(NBCl) since July 27. 2010" and "familiar
Id ~ 1.20 Thus. the aflidavit is not inadmissible
.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
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
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
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
For the foregoing
granted. and Defendants'
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.
ECF NO.1 O. is granted. A scparate
GEORGE J. HAZEL
Unitcd Statcs District Judgc
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