Lattisaw, Jr. v. C.O. Ross et al

Filing 23

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 9/21/2017. (c/m 9/21/2017 tds, Deputy Clerk)

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,. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division ..,. 1 b . lOll SEP 2 I ,"""'\ 10' * CHARLES WILLIAM #444-499, LATTISA W,.IR. * Plaintiff, * v. * CO. ERIC ROSS,' CHARLES COUNTY SHERIFF TROY BERRY, CHARLES COUNTY DETENTION CENTER DIRECTOR CAPTAIN RICE, CHARLES COUNTY GOVERNMENT, CHARLES COUNTY DETETION CENTER, Case No.: G."'-16-1258 (Consolidated with G.IH-16-2469) * * * * * Defendants. * * * * * * * * * * * * * * MEMORANDUM OPINION I'laintilTCharles William Lattisaw. Jr" a prisoner eonlined at Jessup Correctional Institution. has liled a sell~represented civil rights action pursuant to 42 U.S.c. ~ 19832 As amended hy eonsolidation.-' the Complaint seeks $5 million in damages against Charles County Detention Center ("Detention Center") Officer Eric Ross. Director Captain Rice. Charles County Sheriff Troy Berry. and Charles County. Maryland. I The Clerk shall amend the docket to relleet the full and proper spelling of Defendants' :! In addition to claims brought under the Civil Rights statutc. the complaint battery. and negligence . names. also contains state tort claims for assault. .~ Lattisaw's first complaint. Civil Action No. GJII-16-1258. named Officer Ross and the Detention Center as defendants. and alleged that on February 28. 2014. Ross turned ofTthe lights and \vater in the shower arca while Lattisavy' was showering. leading to injury. ECF No. I. On June 29, 2016, Lattisaw filed a second civil action arising from the same event. adding Berry. Ricc. and Charles County as defendants. That actioll. Lall;SOlI' 1'. Be,.,:\'. C!{ (// .• Civil Action No. GJH.16-2.J69. was consolidated with Civil Action No. GJH-16-1258. ECF NO.8. Pcnding is a Motion to Dismiss or. Alternatively. for Summary Judgment tiled on behalf of Ross. Rice. Berry and Charlcs County.4 ECF No. 17. and Lattisaw's Responsc. Eel' No. 22. No hearing is needed to resolve the issues raised. See Loe. R. 105.6 (D. Md. 2(16). For the following reasons. Defendants' Motion will be granted. I. BACKGROUND A. Lattisaw's Allegations' Lattisaw e1aims that on February 28. 2014. he was "assaulted in various ways (physically. sexually. verbally) by CO Ross:' ECF NO.1 at 5." Lattisaw states that Ross turned the lights and water on and offin the shower area. When Lattisaw stepped out of the shower to ask Ross to stop playing with the controls. Ross "stuck up his middle linger" and laughed at him. !d Lattisaw resumed his shower and Ross continued to turn the water and lights on and off. Lattisaw was struck with "exceedingly hoC watcr that burncd his "back. neck and butt:' and as hc hurricd out of the shower. he tripped and fell in Ii'ont 01'''15-20 other inmates" who frightcncd him by making "scxual remarks" toward him. Id. Lattisaw contends Ross's conduct constitutes "abusc and negligcnce:' and that Ross ignored his rcquests for medical treatment and left Lattisaw on the floor in pain. !d at 6. Lattisaw states another officer heard his crics for help and escort cd him to the medical area. !d Lattisawasked Sgt. Irby to review the security camera to verify the incident. which was witnessed by other inmates. !d Lattisaw e1aims he continues to sulkr "[dlepression. anxiety. nightmares. fear and emotional [inlstability" because of the incident. !d ~ The Detention Center \\'as dismissed on preliminary rcvic\\'. as it was not a "person"' amenable to suit under 42 U.S.c. ~ 1983. ECF NO.3. ~ Unless othenvise stated. the facts <Ire taken from Plaintiffs Complaint and assumed to be true. U Pin cites to documents tiled on the Court's electronic filing system (CM/ECF) by that system. 2 refer to the page numbers generated B. Defendants' Responses Ross contends that the incident that resulted in Lattisaw's fall was an accident. l.attisaw was not denied medical care and in any event was not sexually assaulted or otherwise injurcd. and that the video of the incident was overwritten alter review because it did not reveal any wrongdoing. Ross has submitted an affidavit detailing the layout of the Men's Classification Unit ("MCU") where the incident occurred and explaining his actions on the day of the incident. ECF No. 17-4. The MCU is a two-tiered unit with 24 cells with a common area and a shower on each tier. ld. ~ 3. Two ofticers are typically assigned to the MCU. one to the first floor control room and the other to the desk just outside the control room. ld. ~ 4. From the main screen of the computer in the control room. an ofticer can control various operations in the MCU. including the opening and closing of cell doors. lights. and water to the showers.!d. ~i There 5. is a speeilic button that controls the lights to the shower on both the first and second floors. Id. ~ 6. A separate mouse-activated button controls the water to the showers. This button does not control the water flow from the shower head. but simply acts to turn the water lines running to the showers on and otT. !d. ~ 7. An ollicer cannot control the temperature of the water in the showers from the control room; the temperature is controlled at the water heaters. !d. ~ 8. Because the mouse must be clicked to turn the lights on and off and also to turn the water to the showers on and oil: the lights and water cannot be turned on and off simultaneously. It!. ~ 9. The shower area on the first floor includes an area that has a toilet. sink. and bench as well as a shower stall. ECF No. 17-4 ~ 10. The shower stall is separated Irom the toilet area by a shower curtain. !d. There is a lip that inmates must step over to enter the shower that prevents 3 water from flowing into the toilet area. Similarly. there is a lip in the entrance to the toilet area that prevents water from flowing out into the common area. /d. '110. Water will not !low Ii'om the shower head until the corrections oflicer in the control room has turned the water to the showers on. The showers are not automatically activated when the shower button is pressed on the computer in the control room. Instead. the shower heads are activated only when an inmate presses a button located below the shower head itself. When an inmate presses the button. the water turns on for approximately twenty seconds. Consequently. inmates have to continuously press the button during their showers. /d. '112. If the water to the showers is turned off in the control room while water is flowing trom the shower head. the water will stop !lowing. /d. ,; 13. Water will not automatically flow trom the shower head when the water is turned back on in the control room. Once the water has been turned back on in the control room. an inmate must press the button below the shower head to turn the water back on for an additional twenty seconds. /d. Neither inmates. nor the corrections oflicer in the control room. have control over the temperature of the water that comes trom the shower head. /d. ~ 14. Inmates assigned to the MCU are in their cells for approximately twenty-two hours a day and are allowed into the common area twice a day. for one hour at a time. once during the morning shin (7:00 a.m. to 3:00 p.m.) and once during the evening shin (3:00 p.m. to I 1:00 p.m.). /d. ~ 15. Inmates are allowed to use either of the two showers while out of their cells. The only restriction is that inmates cannot take a shower during the morning shin until the showers have been cleaned and inspected by a corrections oflicer. /d. On February 28. 2014. Ross was assigned to the Control Room in the MCU when Lattisaw and fellow inmate Mark Clower decided to take showers. /d. ~ 16. Lattisaw was in the shower on the first floor and Clower was in the shower on the second !loor. /d. Aner several 4 minutes. Ross told Clower to finish his shower because he was scheduled to be taken to the medical unit. Id. ~ 17: ECF No. 17-3 at 118. When Clower ignored Ross's order. Ross turned ofT the lights to the shower areas tirst. followed by the water to the showers. then turned each back on. in roughly three second intervals. repeating the process three additional times over a two minute period. ECF No. 17-4 ~~ 17-18. Laltisaw was still in the first floor shower while this was occurring. Id. Ross avers that his decision to turn the lights and water off and on was bascd solely upon the need to get Clower to the medical unit. and Laltisaw's presence in the shower did not filctor into this decision. Id. ~ 19. Alier Ross stopped turning the lights and water on and oft: he lcarncd that Laltisaw was complaining of injury. hi. ~ 20. Ross did not say anything to Laltisaw during or alier the incident. !d. Laltisaw was transported by Corporal Fagnani to the mcdicalunit. hI. ~ 21. wherc he "stated he fell in the shower and also stated the water in the shower was hot." ECF No. 17-3 at 251. Nothing in the record suggests that he complained to medical staff about being sexually assaultcd. !d. Staff check cd Laltisaw's vitals. !d. The medical records do not include any reference to Laltisaw sustaining burns on his body or to other obvious injury eaused by his alleged fall. Id. Lattisaw remained in the mediealunit overnight but was released the next day alier indicating he had no pain. Id. Defendants do not dispute that a Samsung SCB-2000 High Resolution video camera is positioned to record activity in and around the shower located on the first floor of the MCU. ECF No. 17-5 ~ 2. Brandon Foster. Acting Director of the Detention Center. explains that each of the three cameras in the MCU is connected to a digital video recorder located on A-Block. where MCU is located. in the Mini-Control room. Id. ~ 3. During the time period in question. the 5 images captured by the video cameras in the MCU were stored on a Model D 16LS6TB DVR ("the DVR") that recorded 24 hours a day. seven days a week. Id. The DVR has an internal memory capable of storing approximately three months' worth of video ICed by overwriting the earliest videos in one minute increments on a constant and revolving basis: thus. any visual evidence captured by the DVR. if not converted to a video lile before that particular day in question. is overwritten. and is lost lorever. Id. At the time of the incident in question. the Detention Center did not have a written policy in place to preserve all videos related to complaints madc by inmates. Id. 'i 4. During the time in question. if an inmate made a complaint about a corrections ofticer. a supervisor or member of the command stalTwould watch a playback of the incident directly fromlhe DVR on which it was stored: if the review revealed no wrongdoing. there was no requirement that the video be preserved. If the review revealed any type of wrongdoing. the digital recording from the DVR was converted to a video file and saved. !d. Aller Lattisaw complained about Ross's behavior on the date in question. Sergeant Matthew Irby reviewed the f()otage of the incident and did not lind any cvidencc to corroborate Lattisaw's claim against Ross. Id. ~ 5. Bascd upon the policy in place during the time period in question. Irby was not required to preserve the video. Id. ~ 67 II. STANDARD OF RF:VIEW Defendants' motion is styled as a motion to dismiss under Federal Rule of Civil Proccdure 12(b)(6) or. in the alternative. lor summary judgment under Rule 56. If the Court considers mattcr outsidc the pleadings. as the Court does here. the Court must treat a motion to dismiss as one for summary judgmcnt. Fcd. R. Civ. 1'. 12(d). When the Court trcats a motion to On May 9. 2016 the Court issued an Order requiring that the video surveillance referenced in the Complaint be preserved. ECF No.3. By that date, the video had already been recorded over and was not availahle to be preserved. 7 6 dismiss as a motion for summary judgment, "[a]1I parties must be given a reasonable opportunity to present all the material that is pertinent to the motion:' Id It is obvious that when the moving party styles its motion as a motion to dismiss for failure to state a claim or. alternativcly. Illotion for summary judgmcnt. as is the case here. and the nonmoving party attaches cxhibits to its opposition. the nonmoving party is aware that materials outside the pleadings arc bC!l)fe the Court. and the Court can treat the motion as one lor summary judgment. See Laughlin I', Metropolitan Wash. Airports, Auth.. 149 F.3d 253. 260-61 (4th Cir. 1998). Furthcr. the Court is not prohibitcd fi'om granting a motion for summary judgment befi.)rcthe commcncement of discovery. See Fed. R, Civ. 1'. 56(a) (stating that the court "shall grant summary judgment if the movant shows that there is no genuine disputc as to any material fact" without distinguishing pre- or post-discovery), However. summary judgmcnt should not be granted ifthc nonmoving party has not had the opportunity to discover information that is essential to his opposition to thc motion, Anderson \', Liberty Lohhy. Inc.. 477 U.S, 242. 250 n. 5 (1987). If the nonmoving party feels that the motion is premature. that party can invoke Rule 56(d). See Celotex Corl', I', Cl1rell. 477 U.S. 317. 326 (1986). Under Rule 56(d). the Court may deny a motion for summary judgmcnt if the non-movant shows through an affidavit that. for specificd rcasons. he cannot properly prcsent facts essential to justify an opposition because they are unavailable to him. Fed. R. Civ. 1'. 56(d). "'[TJhe f:1ilureto tile an affidavit ... is itselfsufficicnt grounds to rejcct a e1aim that thc opportunity or discovery was inadequatc ...• Harrod" Ltd 1'. Sixty Internet DOlllain Nallles. 302 F.3d 214. 244 (4th Cir. 2002) (citations omitted). However. a failurc to tilc an affidavit may be cxcused "if thc nonmoving party has adequately infi.JrInedthe district court that thc motion is premature and that more discovcry is necessary" and the "nonmoving party's objcctions befi.)re 7 the district court scrvcd as the functional cquivalcnt of an affidavit." Id at 244--45 (citations and internal quotation marks omitted). Lattisaw is aware that materials outside the pleadings are heli)re the Court. and that the Court may treat the motion as one lor summary judgment. Lattisaw has received copies of the exhibits that accompany the Defendants' dispositive motion. ECI' No. 17. and has attached exhibits to his opposition. ECF No. 22-1. I'urthermore. Lattisaw has not filed an affidavit. pursuant to Fed. R. Civ. P. 56(d). to show what essential facts. currently unavailable to him. he could present if given an opportunity to conduct discovery. Lattisaw has requested a copy of video footagc showing the incident involving the showcr area. but the footage is not available.' Further. lor reasons addressed herein. the video is not sufficiently material to the outcome of this case. Thus. the Court is satislied that it is appropriate to address Defendants' motion as onc for summary judgment. Summary judgment is appropriate if'"materials in the record. including depositions. documents. electronically stored information. affidavits or declarations. stipulations ... admissions. interrogatory answers. or other materials:' Fed. R. Civ. P. 56(c). show that there is '"no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law:' Fed. R. Civ. P. 56(a); see a/so Ce/Olex. 477 U.S. at 322. The party moving for summary judgment bears the burden of demonstrating that no genuinc dispute exists as to material lacts. Pulliam/m' .. Co. \".Cameo Props .. 810 F.2d 1282. 1286 (4th Cir. 1987). If the moving party demonstrates that there is no evidence to support the non-moving party's case. the burden shifts to the non-moving party to identify specific lacts showing that there is a genuine issue li)r trial. See Ce/o/ex. 477 U.S. at 322-23. i\ material fact is one that "might affect the outcome of the suit RThe COUll accepts the veracity of Lattis3\'/S statements regarding Ross's turning the water and lights on and otT and Lattisaw's f..,I! in the shower area for the purpose ofsullllllary judgment review. 8 under the governing law:' Spri~~s v. Diall/ond Aulo Glass, 242 F.3d 179. 183 (4th Cir. 2011 ) (quoting Anderson. 477 U.S. at 248). A dispute of material fact is only genuine ifsurticient evidenee favoring the non-moving party exists for the trier of lact to return a verdict Illr that party. Id at 248. However. the nonmoving party "cannot crcatc a gcnuine issue of material faet through mere speeulation or the building of one inference upon another:' !Jeale \'. Ilan~I', 769 F.2d 213. 214 (4th Cir. 1985). The Court may only rely onlacts supported in the rccord.not simply assertions in the pleadings. in order to fullill its "artirmative obligation ... to prevent 'faetually unsupported claims or defenscs' from proeecding to tria!'" Felly v.. Gral'i!-lIulI/phreys Co.. 818 F.2d 1126. 1128 (4th Cir. 1987) (quoting Celolex, 477 U.S. at 324-25), Whcn ruling on a motion for summary judgmcnt. "ftJhe evidencc ofthc non-movant is to be believed. and all justifiable inferenees are to be drawn in his favor:' Anderson, 477 U,S, at 255. Beeausc Lattisaw is sell~reprcsented. his submissions arc liberally eonstrued. See Erickson \'. Panlus, 551 U.S. 89. 94 (2007), III. DISCUSSION Lattisaw brings this aetion under the auspiees of the Eighth Amendmcnt. allcging Ross's aetions subjectcd him to scxual assault and amounted to an impropcr usc of f(lree. Lattisaw raises three Eighth Amcndmcnt claims: intliction of cruel and unusual punishment caused by Ross's aetions in turning on and olTthe lights and water: lailurc to protcct Lattisaw from violence whcn he fell outside the shower: and denial of medical or mental health treatment lollowing a scxual assault. Lattisaw's eomplaint. liberally construed. also raises state tort claims for assault. battery. and negligencc. "The Eighth Amendment's prohibition on cruel and unusual punishments imposes eertain basic duties on prison otlicials:' Raynor v, Pu~h. 817 F.3d 123. 127 (4th Cir. 2016) (eiting 9 Farmer \', Brennan. 511 U,S, 825. 832 (1994). Those duties "include maintaining humane conditions ofconlinement. including lhe provision of adequate medical care and ... 'reasonablc measures to guarantee the safety ofthc inmates .... Id, "[NJot every injury sulkred by a prisoner at the hands of another translates into constitutional liability for prison ortieials responsible I()r the victims safety."' A1akdessi \'. Fields. 789 1',3d 126. 133 (4th Cir. 2015). "A plaintiff bringing an Eighth Amendment claim must salisl)' a two-part test. consisting of both an objective and a subjective inquiry. for liability to attach."' See Raynor, 817 1'.3d at 127, Objectively. the prisoner "must establish a serious deprivation of his rights in the 1()fIn of a serious or signiticant physical or emotional injury" or substantial risk to either il~jury. DallS(,/, \'. Siansberry. 772 1'.3d 340. 346--47 (4th Cir. 2014). The objective inquiry requires the Court to "assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk."' Helling 1'. 1j,IcKil111ey. U.S. 25. 36 (1993) (emphasis in original). A genuine dispute of tact 509 regarding the extent of the injury sutlered precludes summary judgment. Raynor. 817 F.3d 12829, Subjectively. a plaintiff must establish that the prison ot1icial involved had"a surticiently culpable state of mind" amounting to "deliberate indifference to inmate health or salety." Farmer. 511 U.S. at 834, Evidence establishing a culpablc stalc of mind requires actual knowledge of an cxcessive risk to the prisoner's safety or proof thaI prison orticials were aware of lacts from which an inlerence could be drawn that a substantial risk of serious harm exists and that the inlerence was drawn. 1<1. at 837. A plainti ff may "prove an orticial's actual knowledge of a substantial risk in the usual ways including inferencc from circumstantial evidence" so that "a 10 factfinder may conclude that a prison orticial knew of a substantial risk from the very faet that the risk was obvious:' Raynor. 817 F.3d at 128 (internal citation and quotation omitted). A. Claims Against Russ Nothing in the reeord suggests that Ross's actions in turning ofTthe lights and water were sutlieiently egregious to establish Eighth Amendment liability. and nothing suggests that Lattisaw sutTered any injury due to a fall sustained while escaping a blast of hot water. Latlisaw's claim that Ross "gave him the finger:' if true. does not without more constitute a violation of constitutional law. See Carler \'. Morris. 164 F.3d 215. 219 n. 3 (4th Cir. 1999) (rejecting use of racial epithets as a basis for constitutional claim). The gesture alleged in this case is not condoned by the Court. but even assuming it occurred. it falls short of acts forbidden by the Fourth. the Fourteenth. or the Eighth Amendments. See Pink \'. Lesler. 52 F.3d 73. 75 (1995) ("not all undesirable behavior by state actors is unconstitutionan. Lattisaw also claims that he was injurcd due to "sexual assault" by other inmates present in the shower area. In order to prevail on an Eighth Amendment claim of failure to protect from violence. Lattisaw must establish that Ross exhibited deliberate or callous indifTerence to a spccific known risk of harm. See Pressly v. HlIIlo. 816 F. 2d 977. 979 (4th Cir. 1987). Failure to take any action in an ongoing assault can amount to deliberate indifference. See Winl/elt! \'. Bass. 106 F.3d 525. 532 (4th Cir. 1997). However. courts have recognized. that not every allegation of sexual abuse is "objectively. surticiently serious" for purposes of the Eighth Amendment. See Wilkins 1'. Gadc~l'.559 U.S. 34. 37 (2010) ("not every malevolent touch by a prison guard gives rise to a federal cause of action") (internal citation omitted): Boddie. 105 F.3d at 861 ("isolated episodes of harassment and touehing ... are despicable .... But they do not involve a harm of federal constitutional proportions as defined by the Supreme Court") (ell in}.:Farmer. 511 U.S. at II 833-34). Instead. courts must conduct a Itlct-intensive. case-by-case inquiry to detcrminc iftbe alleged sexual abuse was suniciently serious. Chapman 1'. Willis. NO.7: 12-CV-00389. 2013 WI. 2322947. at *5 (W.D. Va. May 28, 2(13). Here. Lallisaw's claim of "sexual assault .. involves lewd comments made by fellow inmates while he lay sprawled outside the shower. Nothing in the record remotely suggests that he was fondled. assaulted. or otherwise a victim of sexual assault." Accordingly, there is no dispute as to any material Itlct that would suggcst that Ross. either objectively or subjectively. violated Lallisaw's Eighth Amendment rights. B. Claims Against the County, Sheriff, and Director Lallisaw has failed to establish an Eighth Amendment claim against Ross. thus barring his claims against Charles County. Charles County Sheriff Troy Berry, and Detcntion Center Director Captain Rice. which stem li'OI11 is claim against Ross. Even if the underlying claim h against Ross wcre to proeeed. there is no doctrine of re.\jlOndeal superior in ~ 1983 actions, and Lallisaw has failed to establish that the incident resulted from inadequate or improper training required by tbe County or that Berry or Rice failed to properly supervise Detention Center stan~ See Chin 1'. CiJy o{Ba/JiJllore. 241 F. Supp. 2d 546. 549 (D. Md, 2(03) (citing Monell \'. Nell' York DeparlmenJ o{Socia/ SelTices. 436 U.S. 658. 694 (1978»: see a/so Miller \'. lIamm. Civ. No. CCB-I 0-243.2011 WL 9185. at * 14 (D, Md. Jan, 3. 2(11) (dismissing a plaintiffs ~ 1983 claim against defendants in their onicial capacity where the plaintifTtailed to establish that defendants' policies. customs. or practices causally contributed to a constitutional violation). " Lattisaw also argues that Defendants did not provide him mental health counseling following the event. ECF No. 22 at 3. Notwithstanding the Court's conclusion that Lanisaw was not a victim afsexual assault. the record shows that Lattisaw's mental health concerns were monitored and addressed throughout his placement at the Detention Center. Lattisaw requested a mental health/HIV consultation on March 10.2014. and was seen two days later. on March 12.2014. The nature of the consultation is not apparent in the record. ECF 17-3 at 159. Medical records indicate Lattisaw had a history of depression and was prescribed an antidepressant while at the Detention Center. beginning in July of2013./d at 236-256. 260. 12 C. State Tort Claims The facts underpinning Lattisaw's civil rights claim. specifically that Ross acted with malice to expose him to scalding water in the shower and that the incident could have been avoided had Rice and/or Berry provided better management and training of Detention Center staff. could also be construed as a state tort claim. However. a federal court may decline to exercise supplemental jurisdiction over state law claims where it has dismissed the federal claim. 28 U.S.c. ~ 1367(c)(3). When. as here. the federal claim is dismissed. the federal courts arc inclined to dismiss the state law claims without prejudice rather than retain supplemental jurisdiction.lo See Carnegie Melloll Unil'. \'. Cohill. 484 U.S. 343. 350 (1988). Accordingly. Latlisaw's claims of assault. batlery and negligence are dismissed without prejudice. IV. II CONCLUSION For the foregoing reasons. Defendants' Motion to Dismiss or. Alternatively. for Summary Judgment is granted and this action is dismissed. A separate Order f{)lIows. Dated: SeptemberU. 2017 GEORGE J. HAZEL United States District Judge lO Because the state la\\' claims will not be adjudicated here. this COllrt need not consider Defendants' arguments concerning the limitations period for assault actions and compliance \\lith Maryland's Local Government Tort Claims Act. Md. Code. Ann .. Cts & Jud. Proc .. 5.301 to 5.304 (2013 RcpL VoL). ** II To the extent these state claims remain viahle. Louisa\\-' may wish to pursue any appropriate action in state court. 13

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