McIntosh v. Division of Corrections et al

Filing 27

MEMORANDUM OPINION Signed by Judge Paul W. Grimm on 8/7/2017. (c/m 8/8/17 cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

*

NICHOLAS 1. McINTOSH, #410358,

*

Plaintiff,
v.

*

DIVISION OF CORRECTIONS, et al.

Civil Action No. PWG-16-1320

*
***

Defendants.

MEMORANDUM OPINION
Plaintiff

Nicolas

1. McIntosh

is an inmate presently

confined

at North

Branch

Correctional Institution in Cumberland, Maryland ("NBCI"). Pending before the Court is his
Complaint filed pro se and pursuant to 42 U.S.C. 91983, which advances claims based on
incidents that occurred during the time that he was incarcerated
Institution ("ECI") in Westover, Maryland.

at Eastern Correctional

Former Warden Kathleen Green, the Division of

Correction (DOC), Lt. Michael Daugherty, Rose Beteck, Ph.D, Sgt. John Bromley, e.O. II Brian
Lee, C.O. II Paul Dyson, and C.O. II James Rogers! have filed a Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment, ECF No. 16, along with a supporting memorandum,
Defs.' Mem., ECF No. 16-1, which they later supplemented, Defs.' Supp. Mem., ECF No. 19.
After notice was sent to McIntosh informing him that he may file an Opposition with affidavits
and exhibits, ECF No. 17, he filed three Motions for Extensions of Time to file an Opposition,
ECF Nos. 18, 23, 25, all of which I granted, ECF Nos. 20, 24, 26. McIntosh has chosen,
however, not to respond, and Defendants'
necessary.

Loc. R. 105.6 (D. Md.).

dispositive motion is unopposed.

No hearing is

After considering the pleadings, exhibits, and applicable

law, I will dismiss the claims against Warden Green, the Division of Correction, and the
•
! The Clerk shall amend the docket to reflect Defendants' names as spelled in the Response.

correctional

officers in their official capacities, none of which are amenable to suit.

The

Defendants are entitled to summary judgment on the remaining claims because McIntosh has
produced no evidence in support of his allegations.
Background
On February 19, 2016, inmates set fires on McIntosh's housing tier at ECl.

Incident

Report 2, Dep't. of Pub. Safety & Corr. Servs. Internal Investigative Div. Report 11, Defs.' Mot.
Ex. 1, ECF No. 16-3 [hereinafter lID Report]. ECI determined that McIntosh threw paper and
other materials to accelerate the fire, although he maintains that he had no role in the incident.
Notice of Inmate Rule Violation, lID Report 42; Compi. 5.2 After the fire was extinguished,
Defendants Daugherty and Bromley removed McIntosh from his cell to escort him to a medical
examination. Memorandum from Maj. John Flaig to Walter West, Acting Security Chief (Feb.
19, 2016), lID Report 19. Brenda Lucas, R.N examined McIntosh, who reported difficulty
breathing from the smoke and fire retardants.

Medical Records 9, Defs. Mot. Ex. 3, ECF No.

16-5. Lucas found the patient's lungs clear; and McIntosh reported feeling better once he calmed
down and was released back into custody. Id.
After the medical examination Defendants Bromley, Lee, and Rogers took him to a cell
in the Special Management Unit in Housing Unit 5 in the East Compound.

Memorandum from

Flaig to West, lID Report 19. There, McIntosh claims that the officers directed him to move to
the back of the cell, face the wall, and get on his knees. Compi. 6, 11. When McIntosh refused
to comply, Bromley allegedly said, "if you don't want to get on your kneels like a 'bitch' were
gonna treat you like a 'bitch' " and forced him to the ground by using a shoulder lock, which
caused him to hit his head on the wall. Id. at 11. The officers then allegedly stripped McIntosh

Citations to the Complaint refer to CM/ECF page numbers, as the Complaint's
unnumbered and out of order.

2

2

pages are

while making degrading comments about the size of his genitalia.

Id.

McIntosh claims that

Defendant Dyson recorded the incident with a hand-held video camera. Id. at 6.
McIntosh claims Bromley ignored his request to write an inmate statement to document
use of excessive force and to file a Prison Rape Elimination Act ("PREA,,)3 claim for sexual
harassment and misconduct. Id. at 11-12.

He also claims that his requests to speak with lID

investigators and to file criminal charges were not heeded and that he received no medical
treatment after the incident. Id. at 12. McIntosh filed Administrative Remedy Procedure (ARP)
#ECI-0538-16, which was dismissed on procedural grounds because an inmate cannot pursue
PREA issues through the ARP process.4 CompI. 12. McIntosh faults Defendant Rose Beteck,
the PREA Compliance Coordinator at ECI, for failing to contact the lID to investigate the
incident, despite being made aware of his claim by ECl's ARP coordinator. Id. at 13.
But despite McIntosh's

initial difficulties raising his claims with prison officials, he

eventually succeeded in doing so by calling the PREA hotline, thereby triggering an lID inquiry.
Incident Report, lID Report 11. After an investigation in which Officers Bromley and Lee
denied that any sexual remarks were made towards McIntosh, Bromley Statement (June 3, 2016),
lID Report 93; Bromley Statement (Sept. 21, 2016), lID Report 102; Lee Statement (June 3,
2016), lID Report 95; Lee Statement (Sept. 21, 2016), lID Report 100, the investigators
concluded that McIntosh's allegations were unsubstantiated.

Incident Report, lID Report 12.

McIntosh also maintains that corrections officials retaliated against him by denying him

3 The statute is codified at 42 U.S.C.

SS

15601-15609.

Maryland Department of Public Safety and Correctional Services Operating Procedure
Statement ("OPS") 185.0002 prohibits "the use of an informal resolution process or ARP to
resolve complaints of rape, sexual assault, sexual harassment, sexual abuse misconduct, inmate
on inmate sexual conduct, or other areas afforded protections by standards established under the
authority ofthe Prison Rape Elimination Act (PREA), and related Department procedures."

4

3

his prescribed medical diet. CompI. 12-13. He also states that he suffers from depression and
trauma as a result of the incident, resulting in panic attacks.
psychologist and has been prescribed psychotropic medication.

Id.

He is under the care of a

Medical Records 20-24.

As

redress, McIntosh requests punitive damages and declaratory and injunctive relief, including his
transfer from ECI, although he has already been transferred to NCB!. CompI. 8-9.
Standard of Review
Motion to Dismiss
Federal Rule of Civil Procedure

12(b)(6) provides for "the dismissal

complaint if it fails to state a claim upon which relief can be granted."

of a

Velencia v. Drezhlo, No.

RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose "is to test
the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses."

Id. (quoting Presley v. City of Charlottesville, 464 F.3d

480,483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed. R. Civ.
P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009), when considering

a motion to dismiss pursuant to Rule 12(b)( 6).

Specifically, a

complaint must contain "a short and plain statement of the claim showing that the pleader is
entitled to relief," Fed. R. Civ. P. 8(a)(2), and must state "a plausible claim for relief," as
"[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice," Iqbal, 556 U.S. at 678-79.
(discussing standard from Iqbal and Twombly).

See Velencia, 2012 WL 6562764, at *4

"A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."

Iqbal, 556 U.S. at 678.

The claims against

defendants the Division of Correction, former Warden Green, and the claims for monetary

4

damages against Defendants in their official capacities will be reviewed under this standard.
Motion for Summary Judgment
Summary judgment is proper when the moving party demonstrates, through "particular
parts of materials

in the record, including

depositions,

documents,

electronically

stored

information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials," 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), (c)(1)(A); see also Baldwin v.
City o/Greensboro,

714 F.3d 828,833 (4th Cir. 2013). If the party seeking summary judgment

demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to
the nonmoving party to identify evidence that shows that a genuine dispute exists as to material
facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 & n.10
(1986).

The existence of only a "scintilla of evidence" is not enough to defeat a motion for

summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Instead, the
evidentiary materials submitted must show facts from which the finder of fact reasonably could
find for the party opposing summary judgment. Id.
Discussion
Defendants argue they are entitled to dismissal or summary judgment in their favor based
on respondeat superior, sovereign immunity, and because McIntosh has furnished no evidence in
support of his claims.s
Respondeat Superior
Liability is imposed under
subjected, any person ...

9

1983 on "any person who shall subject, or cause to be

to the deprivation of any rights ....

" 42 U.S.c.

S

1983. The statute

Defendants also raise a qualified immunity defense, but because I find that McIntosh has not
produced evidence of any constitutional violations, I will not address the issue.
5

5

reqmres a showing of personal fault, whether based upon the defendant's

own conduct or

another's conduct in executing the defendant's policies or customs. See Monell v. New York City
Dep't of Social Servs., 436 U.S. 658, 690 (1978); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.
1977) (stating that, for an individual defendant to be held liable pursuant to 42 U.S.C.

S

1983, it

must be "affirmatively shown that the official charged acted personally in the deprivation of the
plaintiffs' rights") (quoting Bennett v. Gravelle, 323 F. Supp. 203,214 (D. Md. 1971), aff'd, 451
F.2d 1011 (4th Cir. 1971)).

Thus, an individual cannot be held liable under

S

1983 under a

theory of respondeat superior. See Monell, 436 U.S. at 690; Love-Lane v. Martin, 355 F.3d 766,
782 (4th Cir. 2004).
In a S 1983 action, liability of supervisory officials "is premised on 'a
recognition that supervisory indifference or tacit authorization of subordinates'
misconduct may be a causative factor in the constitutional injuries they inflict on
those committed to their care.' " Supervisory liability under S 1983 must be
supported with evidence: (1) that the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct that posed "a pervasive
and unreasonable risk" of constitutional injury to citizens like the plaintiff; (2)
that the supervisor's response to that knowledge was so inadequate as to show
"deliberate indifference to or tacit authorization of the alleged offensive
practices," and (3) that there was an "affirmative causal link" between the
supervisor's inaction and the particular constitutional injury suffered by the
plaintiff.
Shaw v. Stroud, 13 F.3d 791,799 (4th Cir. 1994) (citations omitted).
McIntosh does not claim that then Warden Kathleen Green was personally involved in
the matters alleged, but rather seeks to hold her liable in her supervisory capacity, CompI. 3, and
he does not plead that Green had any awareness of the matters at issue let alone that she was
deliberately indifferent to her subordinates'

alleged conduct.

Accordingly, the claims against

Green will be dismissed.
Sovereign Immunity
McIntosh is suing correctional officers and staff in both their official and individual
6

capacities. Compi. 4. McIntosh has also named the Division of Correction ("DOC"), an agency
within the State of Maryland as a Defendant.
The Eleventh Amendment bars suits for damages against a state in federal court unless
the state has waived sovereign immunity or Congress has abrogated its immunity. See Pennhurst
State Sch. & Hasp. v. Halderman, 465 U.S. 89, 101-02 (1984) ("It is clear, of course, that in the
absence of consent a suit in which the State or one of its agencies or departments is named as the
defendant is proscribed by the Eleventh Amendment.").

Although state officials are literally

persons, "a suit against a state official in his or her official capacity is not a suit against the
official but rather is a suit against the official's office. As such, it is no different from a suit
against the State itself."

Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal

citations omitted). Thus, states and their officers, when sued in their official capacities, are not
"persons" subject to suit for money damages under

S

1983. Id.

Although the State of Maryland has waived its sovereign immunity for certain types of
cases brought in state court, see Md. Code Ann., State Gov't

S

12-104, it has not waived its

immunity under the Eleventh Amendment to suit in federal court.

McIntosh's

claims for

monetary damages against individual Defendants in their official capacities are barred by the
Eleventh Amendment, see Will, 491 U.S. at 71; Pennhurst State Sch. & Hasp, 465 U.S. at
101-02, and will be dismissed. For the same reason, Plaintiffs

claim against the DOC, a state

agency, will also be dismissed.
Eighth Amendment Claims
The Eighth Amendment proscribes "unnecessary and wanton infliction of pain" by virtue
of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173
(1976). "Scrutiny under the Eighth Amendment is not limited to those punishments authorized

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by statute and imposed by a criminal judgment." De'Lonta v. Angelone, 330 F.3d 630, 633 (4th
Cir. 2003) (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)).
A convicted inmate's claim of use of excessive physical force is analyzed in the context
of the Eighth Amendment's

prohibition

against cruel and unusual punishment.

McMillan, 503 U.S. 1,7-9 (1992); Whitley v. Albers, 475 U.S. 312,319-21

Hudson v.

(1986). To establish

an Eighth Amendment violation, a plaintiff must demonstrate that the prison officials "acted with
a sufficiently culpable state of mind (subjective component)" and that "the deprivation suffered
or injury inflicted on the inmate was sufficiently serious (objective component)."
Benjamin, 77 F.3d 756, 761 (4th Cir. 1996).

Williams v.

In making an excessive-use-of-force

claim, an

inmate must meet a heavy burden to satisfy the subjective component by demonstrating that
correctional officers applied force "maliciously and sadistically for the very purpose of causing
harm," rather than "in a good-faith effort to maintain or restore discipline." Whitley, 475 U.S. at
320-21 (quoting Johnson v. Glick, 481 F.2d 1028,1033 (2d Cir. 1973)).
To establish an Eighth Amendment claim for denial of medical care, an inmate must
demonstrate

that the defendants'

actions or their failure to act amounted

to deliberate

indifference to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Jackson v.
Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). "An official is deliberately indifferent to an inmate's
serious medical needs only when he or she subjectively 'knows of and disregards an excessive
risk to inmate health or safety.' " Jackson, 775 F.3d at 178 (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994)). "[I]t is not enough that an official should have known of a risk; he or she must
have had actual subjective knowledge of both the inmate's serious medical condition and the
excessive risk posed by the official's action or inaction." Id.
claim has both an objective component-that

Thus, a deliberate indifference

there objectively exists a serious medical condition

8

and an excessive risk to the inmate's health and safety-and
official subjectively knew of the condition and risk.
subjective component requires "subjective recklessness"
condition.

Jd. 839-40.

a subjective component-

that the

Farmer, 511 U.S. at 834,837.

The

in the face of the serious medical

"True subjective recklessness requires knowledge both of the general

risk, and also that the conduct is inappropriate in light of that risk." Rich v. Bruce, 129 F.3d 336,
340 n.2 (4th Cir. 1997). "Actual knowledge or awareness on the part of the alleged inflicter ...
becomes essential to proof of deliberate indifference

'because prison officials who lacked

knowledge of a risk cannot be said to have inflicted punishment.' " Brice v. Va. Beach Carr. Ctr.,
58 F.3d 101, 105 (4th Cir. 1995) (quoting Farmer, 511 U.S. at 844).
McIntosh alleges Bromley and Lee used excessive force when they attempted to drop
him to his knees in preparation for the strip search. CompI. 6, 11. Defendants uniformly refute
his claim in verified and unopposed records. Bromley DecI. ~ 4, Defs.' Supp. Mem. Ex. 1, ECF
No. 19-1; Lee DecI. ~ 4, Defs.' Supp. Mem., ECF No. 19-2. And Defendants' statements made
in response to the IID investigation uniformly state there was no use of excessive force.

Lee

Statement (Sept. 21, 2016), IID Report 100; Sturgis Statement (Sept. 22, 2016), IID Report 101;
Bromely Statement (Sept. 21, 2016), IID Report 102 ("McIntosh was fully cooperative with the
strip search."). Contrary to McIntosh's assertion, he refused to provide a statement on the day of
the incident. Statement ofInmate (Feb. 19,2016), IID Report 58 ("Inmate [McIntosh) refused to
give a statement.").
February 19,2016.

No use-of-force report was ever filed in connection with the events of
Incident Report, IID Report 11. Even when the facts are viewed in the light

most favorable to McIntosh, I find that no reasonable jury could find from the evidence
submitted that Defendants used excessive force against McIntosh.
Similarly, McIntosh provides no evidence to support his allegation that ECI officials

9

were deliberately indifferent to his medical needs.

McIntosh had medical examinations

February 20, 22, and 29, 2016. Medical Records 12-17, 20-23.

on

Despite being examined four

times in the immediate aftermath of the February 19 incident, he did not complain of the head
injury that he allegedly suffered and was instead treated for vomiting, chest pain, mood swings,
and an episode of non-responsiveness

that he attributed to a migraine and panic attack.

Id.

Beyond those four visits, his records indicate that he had several other medical visits in 2016 to
address gluten-intolerance issues, an old stab wound, dental hygiene, and psychological issues.
Id. at 27-32, 37-45.
Id. at 33-35.

He was also evaluated in connection with his PREA claims in March 2016.

There is no evidence that Defendants acted with deliberate indifference by denying

McIntosh care for a serious medical need.

Accordingly, Defendants are entitled to summary

judgment on this claim.
Sexual and Verbal Harassment
To the extent McIntosh seeks to hold Defendants liable under the PREA, there is no basis
for a private cause of action under

S

1983 to enforce an alleged violation of the statute. "Section

1983 itself creates no rights; rather it provides' a method for vindicating federal rights elsewhere
conferred.'''

Kendall v. City a/Chesapeake,

v. Oliver, 510 U.S. 266, 271 (1994).

174 F.3d 437,440 (4th Cir. 1999) (quoting Albright

"[W]here the text and structure of a statute provide no

indication that Congress intends to create new individual rights, there is no basis for a private
suit, whether under

S

1983 or under an implied right of action." Gonzaga Univ. v. Doe, 536 U.S.

273,286 (2002). "Nothing in the PREA suggests that Congress intended to create a private right
of action for inmates to sue corrections officials under the Act."
15-1891,2016

WL 810707, at *7 (D. Md. March 2,2016).

Williams v. Dovey, No. DKC-

Rather, the law authorizes grant

money and commissions a study to address the issue of rape in prisons. Id.

10

Moreover, McIntosh's allegations of sexual and verbal harassment were investigated and
found to be unsubstantiated. Incident Report, IID Report 12. The IID officer who conducted the
investigation noted that McIntosh, who told the investigator that he wanted his good conduct
credits returned to him, raised his allegations at about the same time he was sanctioned for
participating in the fire incident.

Id. at 11. During the course of the investigation, Defendants

Bromley and Lee both denied that they made any sexual remarks to McIntosh.

Bromley

Statement (June 3, 2016), IID Report 93; Bromley Statement (Sept. 21, 2016), IID Report 102;
Lee Statement (June 3, 2016), IID Report 95; Lee Statement (Sept. 21,2016),

IID Report 100.

Sturgis Statement (Sept. 21, 2016), IID Report 100. McIntosh also seeks to hold Dr. Beteck
culpable for administration of the institution's PREA procedures, yet he fails to specify in what
manner that process was improperly executed or identify an abridgement of a constitutional
provision or federal law. Compi. 13.
McIntosh provides no evidence to refute Defendants' exhibits indicating that no sexual
assault or harassment occurred.

Accordingly, Defendants are entitled to summary judgment on

these claims.
Retaliation
McIntosh summarily claims that he has been "retaliated against by the department" since
the incident, claiming that correctional staff have by failed to provide him a special diet. Compi.
12. To establish a retaliation claim against prison officials, an inmate must show that the
retaliatory act was taken in response to the exercise of a constitutionally protected right or that
the act itself violated such a right. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). McIntosh does
not identify the nature of his protected right at issue or specify the individuals who allegedly
retaliated against him. See Compi. 12-13.

The record shows that McIntosh's

11

request for a

special diet for self-reported celiac disease precedes the February 19, 2016 incident. Medical
Records 2. On March 9, 2016, a medical provider prescribed a special "CV" (cardiovascular)
diet for McIntosh. Id. at 27-29.

He was told he would need to address the "gluten-free" aspect

with custodial staff. Id. McIntosh, however, does not claim that he discussed his diet with the
appropriate staff or explain how Defendants hindered or precluded him from receiving a special
diet. Nor does he explain any causal connection between his efforts to exercise his rights and the
supposed obstacles he faced in securing his desired diet. As there is no evidence to support this
retaliation claim, summary judgment will be entered in favor of Defendants on this claim.
Conclusion
Warden Green, the Division Correction and the correctional
capacities) are not amenable to suit based on the facts alleged.

staff (in their official

The claims against them are

therefore dismissed. And McIntosh has produced no evidence in support of his claims against
correctional staff in their individual capacities.

He has not opposed the Defendants'

while the Defendants have put forth evidence that casts doubt on all of McIntosh's
Accordingly, I will enter judgment in favor of t

-ID1frDate

Paul
. Grimm
United States District Judge

12

Motion,
claims.