Canter v. Shappard et al

Filing 38

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 9/22/2017. (kns, Deputy Clerk)(c/m & e-m as directed 9/22/17)

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.. . IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division 1m SEP 22 MS. CHARLES CANTER * Plaintiff, * Case No.: G.III-16-2545 * SGT. SCHOPI'ERT, et * lIl. Defendants. * * * * * * * * * * * * * * MEMORANDUM OPINION Currently pending before the Court is Sgt. Richard Schoppert. CO II Brian Barrctt. Warden Frank Bishop. Assistant Warden Jeff Nines. ChicfWiliiam Bohrer. Charlottc lies. CO II Jared Zais. and Capt. Gregory Werner's (collectively. "Defendants").1 Motion to Dismiss or for Summary Judgment. ECF No. 33. in rcsponse to I'laintiffCharics Cantcr's civil rights Complaint. A hearing on this motion is unnecessary. Local Rule 105.6 (D. Md. 2016). For the reasons that follow. Defcndants' motion. construed as a Motion for Summary Judgmcnt. shall bc dcnicd in part and granted in part. I. Background! A. Factual Background I'laintilTCharies Canter is an inmatc committcd to thc custody or the Dcpartmcnt or Public Safety and Correctional Services (DI'SCS) and at all timcs relevant to thc Complaint was I The Clerk is directed to correct the docket to relleet the full and correct spelling of Defendants' Plaintifrs Motion to COiTecl the Spelling. ECF No. 26. shall be granted. :! The facts relied on herein arc either undisputed or viewed in th~ light most favorable to the Plaintiff: names and conlined to North Branch Correctional Institution (NBCI). ECF No. 19 at 2:1 Canter. who identilies as a transgender female,~ elaims that. on June 18,2016, she was conlined to Housing Unit One, C-tier. ECF No. I at 4. When Canter's breakfast tray was delivered to her cell. she realized it was not the meal she was supposed to receive pursuant to her medical diet of2.400 calories per day. Canter asked Oflicers Crowe and Hill to call Dietary Oflicer Pratt regarding the mistake. !d. at 5. Hill complied with Canter's request and inlonned Canter that Pratt was coming to Canter's cell to address the issue with the breakfast tray. Upon being so inlonned, Canter placed her breakt~lsttray "Iong ways" in the feed up slot of the cell door to prevent the slot rrom being closed. /d. Crowe came to Canter's cell and ordered her to take the tray out or the slot so that he could close the feed-up slot. Canter refused and explained she wanted to speak with the sergeant on duty. Crowe told Canter that the sergeant "ain't gonna come down" and Canter again rerused to allow the slot to be closed. Id. Officer Barrett then came to Canter's cell and ordered her to close the reed-up slot. Id. at 6. Canter refused and Barrett allegedly responded ... ruck you no one's gonna come and see you:' Barrett then walked away li'om the cell toward the "cage" that divides C-tier rrom B-tier and grabbed a security shield, which he attempted to pull through the doorway or the cage. !d. Barrett was unable to get the security shield through the doorway so he walked in a different direction and obtained a smaller security shield, which he placed on the outside of Canter's ccll door. !d. Barrett latched the shield on the right side or Canter's door, but could not latch the leli side or the shield because the sliding door lor the feed-up slot was opened too I~lr.According to .; Pin cites to documents Iiled on the Court's electronic tiling system (eM/EeF) refer to the page numbers generated by that system. ~ Because Canter identifies as a transgender female. the pronouns used ill this Memorandum Opinion that reference Canter will be female pronouns. 2 Canter, Barrett became angry and lrustrated and began kicking the shield. Barrett again told Canter to move her hand and the tray, but Canter refused. Barrett then moved the shield and kicked the sliding door three to live times, "sharp[lyJ:' with extreme force. Id at 8. As a result of Barrett's aetions. the hard rubber food tray bent and Canter's forearm, hand, and wrist wcre caugltt between tlte feed-up slot door and the door li'ame. Canter could not remove Iter Itand from tlte slot and states that the tray was "warped around my arm:' cutting offtlte blood circulation to her hand. /d. Cantcr cursed at Barrett for trapping her arm in the door and demanded to see a Lieutenant so that she could tile a elaim I(lr use of excessive force against Barrett. !d. at 7. j Canter claims that Barrett responded that Canter should not have Itad Iter hand in tlte slot. smiled, and walked away. Canter claims tltat Iter ann was leli caught in the slot for about twenty minutes bel()J"eHill returned to deliver a brown-bag lunch to anotlter inmate. Derrick Dirton. Iti. When Hill reached Dirton's cell. Dirton informed Hill that Barrett smashed Canter's hand in the feed-up slot and stated that Canter needed medical attention. ld. Ilill came to Canter's door, saw her hand smaslted in tlte slot. and attempted to open tlte slider so tltat Canter could rcmovc Iter Itand. Ilill could not open tlte sliding fced-up door because Barrett Itad damaged it wltenlte kicked tlte door. Hill told Canter Ite would go get tlte Sergeant and walked away. Id. Thil1y minutes aller Hilileli. Defendants Schoppert and Barrett arrived at Canter's door. Id. at 7. 9. They observed Canter's arm smashed with the tray and saw that Canter's Itand was turtling purple. Canter claims tltat Seltoppert defended Barrett and said tltat Barrett would not violate policies and procedures as Canter Itad claimed. Iti. at 9. Barrett also denied kicking tlte slot closed onto Canter's arm. Seltoppert asked Canter wltat injuries site sustained and Canter sltowed Itimlter Ieli arm wlticlt was bruised and Itad an impression oftlte t(lod tray on it. Canter 5 Pages 7 and 8 of the complaint arc reversed on the electronic docket. 3 then requested that she be given medical attention. allowed to write a statement the Id. incident. and allowed to speak with a supervisor. Canter claims that Schoppert regarding denied all of her requests and. in response. the entire tier held their feed-up slots open so that Canter would be provided medical attention. In addition. Canter covered her cell window in protest. /d. at 9. Canter was examined by a registered nurse who determined hand. forearm. and fingers were bruised both internally Canter with an Ace bandage and instructed that Canter's and externally. left arm. wrist. The nurse provided Canter to use it for seven days and to put in a sick call slip to be seen again if the injuries did not improve. Id. at 10. Canter was subsequently inli.JrIned by Warner that the matter had been referred to the Internal Investigation for the purpose of determining Division (lID) whether criminal charges would be tiled. Id. at 11-12. On June 22. 2016. Canter alleges that Officer lies came to her cell door to discuss an administrative referring remedy procedure complaint (ARP) and asked "what we can do about this:' to the ARP. Canter told lies there was nothing that could be done because she wanted "both Defendants charged with assault and neglect:' and the complaint was dismissed lies responded he would process the ARP the same day because the matter had been relerred to liD. /d. at 12. On June 25. 2016. Canter claims that she was interviewed Chris Burton. Canter states she provided observed two affidavits by lID Detective Sergeant to Burton from inmatc witnesses who the incident and told Burton he should speak with them. but that Burton never did so. /d. at 12-13. Canter also providcd Burton with a copy of the ARP. sick call slips. and requcst slips and asked Burton to review the surveillance Canter that the video li.lOtage would be provided video II'om the tier cameras. Burton assured to him on CD Rom for his review. Id Canter 4 then asked Burton to conduct polygraph tests on Barrett. Schoppel1, and Canter herself. !d at 13. Burton told Canter that polygraph tests were unnecessary "'bccause the evidence supported [Canter's] sequence of events." Burton then asked Canter to stale for the record whether she wanted to pursue criminal charges. Id. Canter claims that Burton saw her injuries and assured her that the case would be presented to the State's Attorney lar Allegany County who would decide if criminal charges would be pursued. Canter inf<)fJned Burton that she was in fear for her life and safety. Burton concluded the interview and Canter was taken back to her cell. !d Defendants provide a copy of lID's investigative report. which summarizes Detective Chris Burton's investigation. and states that the video surveillance was viewed by the detective investigating the claim. ECI' No. 33. The report claims that the video confirms that Barrett kicked the door closed. but it could neither be confirmed nor denied that Canter's ann was in the slot at the time the door was kicked. ECI' No. 33-3 at 9. Burton interviewed several individuals throughout his investigation. Barrett denied that Canter's arm was in the slot at the time he closed it: rather, he claimed that Canter was at the back of her cell near the window attempting to incite other inmates to protest. Id. Burton also interviewed Ofticers Crowe and Hill. !d. at 8. Crowe stated that he never saw Catller's ann stuck in the slot. Id. Burton noted that the injury Canter received to her ann was a bruise, but that medical staff could not determine the agc of the bruise./d a19. 11-13 (medical report). 16 (photograph ofCanter's bruised \\Tist). Burton determined that the injury sustained was inconsistent with Canter's account of Barrett kicking the door closed on her ann. Id. at 9. Based on this conclusion. Burton recommended the case be closed without tiling criminal charges against Barrett. Id. Alier her injury. Canter alleges that retaliatory actions have bcen taken against her fiJI'the liling of the instant complaint and names Warden Frank Bishop, Assistant Warden JeffNincs. 5 Security Chief William Borher. Case Manager C. lies. Officer Jared lias. and Intelligence Officer Werner as defendants. ECF No. 19. Canter claims that Defendants have used intimidation. including the use of a jailhouse informanl. to eonvince her to drop the instant lawsuit. which was filed on July 12. 2016. Specifically. Canter" s complaint was dismissed upon reccipt of a voluntary dismissal received in this case which Canter asserts she never Iiled. See ECl' NO.6. Canter claims that another inmate. at the behest of Defendants lies and Barretl. sent the voluntary dismissal to the Courl. ECF No. 19 at 5. Upon receipt of that information. ECl' No. 12. this Court reopened the ease." ECl' No. 14. Alier an investigation into the matter. oflicials at NBCI determined that the pleading was written and Iiled by inmate Walter Hall. ECF No. 18. Defendants argue that Canter"s Complaint fails to state claims. and that the defendants are entitled to qualified immunity. ECI' No. 33-1. They jurther allege that Canter was not placed on administrative segregation as I"lrm of retaliation. but because she had enemies in the general population of NBCI li'om whom she needed to be separated. ECl' No. 33-1 at 18. They assert that administrative segregation is not a form of punishment as inmates so assigned still el~oy many privileges similar to those in general population. It!. B. Procedural Back~round On July 12, 2016. Cantcr filed the instant Complaint with the Court. naming Burton. Schoppert and Barrett as defendants. ECl' No. I. On November 9. 2016. Canter Iiled an "Amendment Complaint:' ECl' No. 19. in which shc additionally named Bishop. Nines. Bohrer. Zies. Werner and Zais as defendants. Canter claims that Barrett used excessive foree when he kicked the slot door closed on her Ieli arm in violation of Canter's rights under the Eighth Amendment. She further claims that Schoppel1 violated her Eighth Amendment rights when he ()The Court notes that Canter's case was not the only one in which an apparently fraudulent voJuntar,Ydismissal was tiled. 6 covered up thc incident. refused to notify a supervisor. and dcnied Cantcr mcdical attention for her injury. Id. at 15-16. r Canter further claims that this Court is permitting Defendants to obstruct justice because they have not been forced to turn over video surveillance of the prison tier where the initial assault took place. lOCI' 19 at 6. Canter claims that Delendants have refused to turn over the video surveillance to the lID for purposes of criminal charges being filed against 13arrettand have refused to comply with the Order of this Court to turn over the surveillance footage. Canter claims that Barrett has threatened to beat her to death or spray her with mace ifshe docs not drop the matter regarding criminal charges and the instant case. Id. at 9. When Canter told Case Manager C. Zies about the threats. Zies told her that there was nothing that could be done to protect Canter unless Barrett assaults her and it is captured on video. Id. at 8-9. As relict: Canter seeks declaratory and injunctive relief as well as monetary damages. Canter additionally asks this Court to watch the surveillance video from the tier camera and to refer the matter to the United States Attorney's Office for investigation. Id. at 18. On December 2.2016. Canter filed a Motion to Force Defendants to Turn Over Video Security Footage. lOCI'No. 15. Defendants oppose Canter's request that the video be presented to the Court as evidence. arguing that discovery has not yet started and that. in any event. the video does not support Canter's claim. The motion shall be construed as one tiled pursuant to Fed. R. ofCiv. Proc. 56(d). and is addressed below. On January 30. 2017. Canter also filed a Motion to Block Extension of Time Requests Made by Defendants. ECF No. 32. which shall be denied as the extensions of time requested were tor good cause. Finally. on February 14.2017. Defendants filed a Motion to Dismiss for Failure to State a Claim or. in the alternative. Motion tor Summary Judgment. ECF No. 33. 7 1I. Standard of Review The Court is mindful that Canter is proceeding pro and therefore the Court must .1'1' liberally construe her pleadings. ESlel/e \'. Gamhle, 429 U.S. 97, 106 (1976): Hail1es ,'. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam): Ericksol11'. I'ardus, 551 U.S. 89, 94 (2007). "ITJhe mandated liberal construction afforded to pro se pleadings 'means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail. it should do so ... , Barnell ,'. HwXell. 174 r,3d 1128, 1 J 33 (10th Cir. J (99). However. "judges arc . . . not required to construct a party's legal arguments for him." Smal/1'. EndicoII, 998 r.2d 411. 417-18 (7th Cir. 19(3). Here, Defendants have liled a "Motion to Dismiss or. in the alternative, Motion for Summary Judgment." ECr No. 13. The Court addresses each legal standard in turn. A. Rule 12(h)(6) Motion to Dismiss To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter. accepted as true, to 'state a claim to relief that is plausible on its lace .... Ashcroft ". Iqbal. 556 U.S. 662. 678 (2009) (citing Bel/ Allamic Corp. I'. T\I'omhZ1'. 550 U.S. 544. 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable infercnce that the defendant is liable le)r the misconduct alleged." Iqhal. 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action. supported by mere conclusory statements. do not suffice," Id. (citing 7il"omhl)'. 550 U,S. at 555 ("'a plaintitl's obligation to provide the 'grounds' of his 'entitlelment] to relief requires more than labels and conclusions. and a lemnulaic recitation of a cause of action's elemcnts will not do.")). The purposc of Fcd, R, Civ. P. 12(b)(6) "is to test the sufficiency ofa complaint and not to resolve contests surrounding the facts, the merits of a claim. or the applicability of defenscs," 1'1'1'.1'/1')' 1'. Cil)' o{Charlolle.l"l'il/e. 464 F.3d 480. 483 (4th Cir. 2006) (citation and internal 8 quotation marks omitted). When deciding a motion to dismiss under Rule 12(b)(6). a court "must accept as true all of the factual allegations containcd in the complaint:' and must "draw all reasonable infcrences [Irom those facts] in favor of the plaintiff:' £.1. duPont I'. K%nlndus de Nelllours &- CO. .. Inc .. 637 F.3d 435. 440 (4th Cir. 2011) (citations and internal quotation marks omittcd). The Court need not. however. accept unsupported legal allegations. see Rerene r. Char/eoi' Coullly COIIIIII'rs. 882 F.2d 870. 873 (4th Cir. 1989). legal conclusions couched as factual allegations. Papasan \'. AI/ain. 478 U.S. 265. 286 (1986), or conclusory factual allegations devoid of any reference to actual events. United Black Firefighlers ofN(n:fidk r. Hirsl. 604 F.2d 844. 847 (4th Cir. 1979). B. Motion for Summary ,Judgment When ruling on a motion to dismiss. if the Court considers materials outside the pleadings. the Com1must treat a motion to dismiss as one for summary judgment. Fed. R. Civ. P. 12(d). When the Court treats a motion to dismiss as a motion for summary judgment. "[a 111 parties must be given a reasonable opportunity to present all the material that is pertinent to the motion:' !d. When the moving party styles its motion as a "Motion to Dismiss. or in the Alternative. for Summary Judgment:' as is the case here. and attaches additionalmatcrials to its motion. thc nonmoving party is. of course. aware that materials outside the pleadings are before the Court. and the Court can treat the motion as one for summary judgment. See I.aughlin \'. Melropo/ilan Wash. Airports AUlh .. 149 F.3d 253. 260-61 (4th Cir. 1998). Further. the Court is not prohibitcd from granting a motion fi:)rsummary judgment before the commencement of discovery. See Fed. R. Civ. P. 56(a) (stating that the court "shall grant summary judgment if the movant shows that therc is no genuinc dispute as to any material fact" without distinguishing pre- or post-discovcry). 9 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. 1'. 56(c). show that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a maller of law:' Fed. R. Civ. P. 56(a): see also Celolex Corp. \'. Caire II. 477 U.S. 317. 322 (1986). The party moving tor summary judgment bears the burden of demonstrating that no genuine dispute exists as to material facts. Pulliam 11l\'.CO. I'. Cameo Props .. 810 F.2d 1282. 1286 (4th Cir. 1987). II' the moving party demonstrates that there is no evidence to support the nonmoving party's case. the burden shiIis to the nonmoving party to identify speeitie tilets showing that there is a genuine issue for trial. See Celolex. 477 U.S. at 322-23./\ material fact is one that "might affect the outcome of the suit under the governing law:' Sprigl!.v \'. Diamolld AII/OGlass. 242 F.3d 179. 183 (4th Cir. 2001) (quoting Alldersoll \'. Liherly Lohhy. Illc.. 477 U.S. 242. 248 (1986»./\ dispute of material tact is only "genuine" if sufficient evidence liworing the nonmoving party exists for the trier of tact to return a verdict tor that party. Alldersoll. 477 U.S. at 248. However. the nonmoving party "cannot create a genuine issue of material lilCtthrough mere speculation or the building of one inference upon another:' Beale \'. Hal'l~I'.769 F.2d 213. 214 (4th Cir. 1986). When ruling on a motion tor summary judgment. movant is to be believed. and alljustitiable "r tlhe evidence of the non- inferences are to be drawn in his lavor:' AlIllersoll. 477 U.S. at 255. II I. Discussion A. Liahili~' of Defendants Bishop, Nines, Bohrer, Zais and Werner It is well established that the doctrine of respolldeal superior docs not apply in ~ 1983 claims. See Lm'e-I,ane \'. Marlin. 355 F.3d 766. 782 (4th Cir. 2004) (Iinding no respondeal 10 slIperior liability under ~ 1983). Liability of supervisory officials "is not based on ordinary principles of respondeat superior. but rather is premised on 'a recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative lactor in the constitutional injuries they inflict on those committed to their care ..,. Baynard \'. Malone. 268 F.3d 228. 235 (4th Cir. 2001) (quoting Siakan \'. Porler, 737 F.2d 368, 372 (4th Cir. 1984)). Supervisory liability under S 1983 must be supported with evidence that: (I) 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) the supervisor's response to the knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices: and (3) there was an affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plainti fr. See Shall' \'. Slrolld, 13 F.3d 791. 799 (4th Cir. 1994). Canter has not sufficiently pleaded claims against Bishop. Nines. Bohrer, Zais and Werner (the "Supervisor Defendants"), and the COUI1will grant the Supervisor Defendants' Motion to Dismiss on these claims. The claims against the Supervisor Defendants are based on their responsibilities as supervisors with respect to the investigation into Canter's claim of excessive force. ECI' No. 35 at 31-32. However, Canter does not plead that any of the Supervisor Defendants' response to her allegations was so inadequate as to show dcliberate indifkrence or tacit authorization. Canter states that the Supervisor Defendants knew about all of the allegations she is raising in this case but failed to take unspecilied corrective action. /d. However, Canter concedes that an liD investigation had been ordered in Canter's case and that the conclusion of that investigation was to close the matter without pursuit of criminal charges against Barrett. The Court finds that it was entirely reasonable for the Supervisor Delcndants to II allow Canter's allegations to be handled through the lID investigation. and to defer to that investigation's results. As such. the Court dismisses the claims against the Supervisor Defendants. B. Rule 56(11) Motion Federal Rule of Civil Procedure 56(d) provides that: If a nonmovant shows by al1idavit or declaration that. for specified reasons. it cannot present facts to justify its opposition. the court may: (1) (2) (3) Defer considering the motion or deny it: Allow time to obtain al1idavits or declarations or to take discovery: or Issue any other appropriate order. Ordinarily. summary judgment is inappropriatc "where the parties have not had an opportunity for reasonable discovery."' £.1. dliPollt de Nemollrs alld Co. \'. K%n/ndlls/ries. /IIC .• 637 F.3d 435. 448-49 (4th Cir. 2011). However ... the party opposing summary judgment 'eannot complain that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed Itll' discovery."" Harrods Ltd. \'. Sixty /l1femet Domaill Names. 302 F.3d 214. 244 (4th Cir. 2002) (quoting £\'(/11.1' \'. Techs. App/ications & Sen'. Co .. 80 F.3d 954. 961 (4th Cir. 1996)). To raise adequately the issue that diseovcry is needed. the non-movant typically must file an al1idavit or declaration pursuant to Rule 56(d). explaining why. "for specilied reasons. it cannot present lilcts essential to justify its opposition."' withoutnccded discovery. Fcd. R. Civ. P. 56(d): see Harrods. 302 F.3d at 244--45 (discussing al1idavit requirement of former Rulc 56(1) Notably, '''Rule 56(d) atlidavits cannot simply dcmand discovery for the sake of discovery .... Hami/toll \'. Mayor & City COlillci/ oj'Ba/timore. 807 F.Supp. 2d 331. 342 (D. Md. 2011) (quoting YOIIIIX \'. UPS. No. DKC-08-2586. 2011 WL 665321. at *20 (D. Md. Feb. 14. 20 II)). "Rather. to justify a denial of summary judgment on the grounds that additional 12 . discoverv is nccessarv. the lacts idcntilied in a Rule 56 artidavit must he 'essential to [thel . opposition:" Scoff ,'. NUl'ell Fill. Sen's .. LLC. 789 F.Supp. 2d 637. 641 (D. Md. 2(11) (alteration in original) (citation omitted). A non-moving party's Rule 56(d) request fi)r additional discovery is properly denied "where the additional evidence sought for diseovery would not have hy itself created a genuine issue of material Itlct sufticient to defeat summary judgment:' Sfrag \'. lId. of' 71".\'.. Crm'ell Cmf)'. Coil .. 55 F.3d 943. 954 (4th Cir. 1995): see Amirmokri \'. A "railam. 437 F.Supp. 2d 414. 420 (D. Md. 2(06).qtl"d. 266 F.App'x. 274 (4th Cir. 2(08). Review of the pleadings Ii\ed indicates that the surveillance video of the alleged assault is pivotal in the determination of the issues pending heli.)re this COUJ1.Defendants' characterization of the content of the video is inconsistent with Burton's ohservation that it was inconclusive. The issue of whether Canter's arm was in the feed up slot when Barrett kicked the door closed is material and the dispute regarding this tact is genuine. Canter's Motion to Force Delendants to Turn Over Video Security Footage as Ordered hy Court. ECF No. 15. which this Court construes as a request for discovery under Rule 56, shall be granted. and the Court will not grant summary judgment on Canter's Eighth Amendment Claims at this time. The Court will still consider Defendants' Motion to Dismiss the Eighth Amendment Claims. C. Eighth Amcndment Claims against Schoppert and Barrctt The Court interprets Canter's Complaint as alleging an excessive force claim against Barrett. and a deliberate indifIerence to a medical need claim against Schoppert and Barrett. The Eighth Amendment prohihits "unnecessary and wanton inlliction of pain" by virtue of its guarantee against cruel and unusual punishment. Gregg \'. Georgia. 428 U.S. 153. 173 (1976). "Scrutiny under the Eighth Amendment is not Iimited to those punishments authorized by statute and imposed by a criminal judgment:' De 'l.ol1la ,'. Allgelolle. 330 F.3d 630. 633 (4th Cir. 20(3) (citing lVilsoll ". Seifer. 50 I U.S. 294. 297 (1991)). Whether filrce used by prison 13 officials was excessive is determined by inquiring if"forcc was applied in a good-faith effort to maintain or restore discipline. or maliciously and sadistically to cause hartn:- HudwJI1 \'. i'vlcMi!liall. 503 U. S. I. 6-7 ( 1992). Courts look at thc need for application of ti.)rcc. the relationship between that need and the amount of ti.)reeapplied. the extent of the injury inllieted. the extent of the threat to the safety of staff and inmates as reasonably perceived by prison officials and any efforts made to temper the severity of the response. Whitley \'. Alhers. 475 U.S. 312. 321 (1986). The absence of significant injury alone is not dispositive of a claim of excessive force. Wilkills \'. Gaddy. 559 U.S. 34 (2010). The extent of injury incurred is one t~letor indicative of whether or not the force used was necessary in a particular situation. but if torce is applied maliciously and sadistically. liability is not avoided simply because the prisoner had the good tortune to escape serious harm. Ill. at 38. Canter's claim against Barrett states a claim of an Eighth Amendment violation. as the complaint alleges that Barrett committed a malicious act perti.lfI11edto dcliberately cause Canter harm. Canter also claims that upon observing Canter's arm caught in the security slot and observing an injury to Canter's am1. Schoppert and Barrett denied Canter's request for medical assistance and allowed the injury to worsen by leaving her caught in the security slot. Schoppert"s and Barrett's alleged actions. viewed in the light most favorable to Canter. exhibit a callous disregard for Canter's pain and suffering. As such. Canter has stated a claim against Schoppert as well. Canter's Eighth Amendmcnt claims against Sehoppert and Barrett therelore survive Defendants' Motion to Dismiss. and Canter may seek additional discovery as appropriate. 14 D. First Amendment Claims I. Claim against Barrett and Zies Retaliation Canter alleges that Defendants lies and Barrett used intimidation. including the use of a jailhouse informant. to convince her to drop the instant lawsuit. ECF No. 19. Cantcr further claims that her assignment to administrative segregation following her completion of disciplinary segregation time was for the purpose of forcing her to withdraw the instant complaint and not. as Defendants assert. to protect her from general population inmates. ECF No. 35. In order to prevail on a claim of retaliation. Canter "must allege either that the retaliatory act was taken in response to the exercise ofa constitutionally protected right or that the act itself violated such a riglit:' Adams \'. Rice. 40 F.3d 72, 75 (4th Cir. 1994). It is unclear how much ofa showing of adversity must be made in order to survive a motion for summary judgment. See Burlol1 \'. Livil1gSIOI1. 791 F.2d 97,100-01 (8th Cir. 1986) (linding a "complaint that a prison guard. without provocation. and for the apparent purpose of retaliating against the prisoner's exercise of his rights in petitioning a federal court for redress. terrorized him with threats of death" sufficient to state claim). "A complaint which alleges retaliation in wholly conclusory terms may sately be dismissed on the pleading alone:' Gill \'. Mool1ey. 824 F.2d 192. 194 (2nd Cir. 1987) (quoting Flaherly v. Cough/ill. 713 F.2d 10. 13 (2d Cir. 1983»: Pierce \'. Kil1g. 918 F. Supp. 932. 945 (E.D. N.C. 1996).judgmel1lmcaled 011olher groul1ds. 525 U.S. 802 (1998) (conclusory allegations of retaliation insufficient to state claim). Retaliation. though it is not expressly referred to in the Constitution. is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights. Pen)' \'. Sillderm1ll111, 408 U.S. 593. 597 (1972). Where there is no impairment of the plaintiff's rights. there is no need for the protection provided by a cause of action It))' retaliation. Thus. a showing of adversity is essential to any retaliation claim. ACLU of.IId.. Ille. \'. Wicomico Cry, Md .. 999 F.2d 780. 785 (4th Cir. 1993). 15 "In the prison context, we treat such claims with skepticism because '[elvery act of discipline by prison officials is by delinition 'retaliatory" in the sense that it responds directly to prisoner misconduct. .,' Cochran\'. Morris, 73 F3d 1310, 13I 7 (4th Cir. 1996) (quoting tldallls \'. Rice. 40 F3d 72,74 (4th Cir. 1994». The protected activity at issue here is Canter's pursuit ofa ~ 1983 claim in this Court. Defendants incorrectly state that there are "no specific examples of any threats" against Canter. ECl' No. 33-1 at 16. Canter alleges in her Amended Complaint that Barrett threatened to "beat me to death or spray me down with [macer ifshe did not drop her ~ 1983 suit. ECI' No. 19 at 9. Canter further alleges that Barrett and Zies conspired together and used another inmate to fraudulently write a letter to the Courlto try to close Canter's ~ 1983 case. Id at 5. Defendants have not otlered any sworn statements IrOlll these Defendants denying this conduct. The Court finds that on these laets, Canter has stated a claim of retaliation to survive Defendants' Motion to Dismiss. 2. Access to Courts Claim Canter's claim that Defendants violated her right of access to courts is that her inability to review the surveillance vidco has resulted in unspecilied state court cases being dismissed. ECl' No. 35 at 23. Canter appears to rely on the fact that criminal charges were not brought against Barrett for the alleged assault against her as a denial of her right of access to courts. Id. In addition, she claims that the failure to properly process her administrative remedy complaints impacted her ability to pursue legal claims. Id. at 30-3 I. Prisoners have a constitutionally protected right of access to the courts. See BO/lnd,' \'. .'lilli/h. 430 U. S, 8 I 7. 82 I (1977). However, BO/lnds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of tiling everything Irom shareholder derivative actions 16 to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences. directly or collaterally. and in order to challenge the conditions ofthcir confinement. Impairment ol"any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration. Lell"is \'. Casey. 518 U. S. 343. 355 (1996). "Ultimately. a prisoner wishing to establish an unconstitutional burden on his right 01" access to the courts must show 'actual injury' to .the capability of bringing contemplated challenges to sentences or conditions of eontinement beli.1I"ehe courts .... () 'Dell\'. Nelherll/lld. t 112 F. 3d 773. 776 (4th Cir. 1997) (quoting Lewis. 518 U.S. at 355). "The requirement that an inmate alleging a violation of BOl/llds must show actual injury derives ultimatcly Irom the doctrine of standing. a constitutional principle that prevents courts 01" law Irom undertaking tasks assigned to the political branches," Lewis. 518 U.S. at 349. Actual injury occurs when a prisoner demonstrates that a "nontrivolous" and "arguable" claim was lost because of the denial of access to the courts, Id. at 399. Canter does not have a right to insist on the criminal prosecution of another. To the extent that the instant case was temporarily closed due to the filing ol"a fraudulent pleading. Canter suffered no actual injury to her ability to pursue the claims asserted because the error was corrected. The claim with regard to processing of administrative remedy complaints also does not state an actual injury. as Canter does not explain how this has hindered her ability to pursue a legal claim. Absent an actual injury. Canter's claim that she has been denied access to courts lails and the Court dismisses this claim. IV, Conclusioll By separate Order which Ii.Jllows. Defendants' Motion to Dismiss or I"orSummary Judgment. ECF No, 33. cOllstrued in part as a Motion I"orSummary Judgment. shall be denied in 17 part and granted in part. Canter's Motion to Force Defendants to Turn Over Video Security Footage. ECF No. 15. construed as a motion tiled pursuant to Fed. R. ofCiv. Proc. 56(d) shall be granted. Her Motion to Correct Missed[sic] Spelled Names, ECF No. 26. shall also be granted. and her Motion to Block Extension of Time Requests. ECF No. 32, shall be denied. Canter's Motion to Appoint Counsel. ECF No. 13, which was previously denied without prejudice. shall be granted and this Court's Order denying the motion shall be vacated. - Dated: September 1,'1;'2017 GEORGE J. HAZEL United States District Judge 18

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