Canter v. Shappard et al
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 9/22/2017. (kns, Deputy Clerk)(c/m & e-m as directed 9/22/17)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
1m SEP 22
MS. CHARLES CANTER
Case No.: G.III-16-2545
SGT. SCHOPI'ERT, et
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'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:
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.
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
Pages 7 and 8 of the complaint arc reversed on the electronic docket.
that she be given medical attention.
allowed to write a statement
incident. and allowed to speak with a supervisor.
Canter claims that Schoppert
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.
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
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
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
(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
charged with assault and neglect:'
and the complaint
lies responded he would process the ARP
the same day because the matter had been relerred to liD. /d. at
On June 25. 2016. Canter claims that she was interviewed
Chris Burton. Canter states she provided
by lID Detective
to Burton from inmatc witnesses
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.
to him on CD Rom for his review. Id Canter
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
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.
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!.
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
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
covered up thc incident. refused to notify a supervisor. and dcnied Cantcr mcdical attention for
her injury. Id. at 15-16.
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.
The Court is mindful that Canter is proceeding pro
and therefore the Court must
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
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.
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
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,"
464 F.3d 480. 483 (4th Cir. 2006) (citation and internal
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
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
Hirsl. 604 F.2d 844. 847 (4th Cir. 1979).
Motion for Summary
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
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 \'.
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).
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
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.
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
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
allow Canter's allegations to be handled through the lID investigation. and to defer to that
results. As such. the Court dismisses the claims against the Supervisor
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:
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.
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)
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.
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
discoverv is nccessarv. the lacts idcntilied in a Rule 56 artidavit must he 'essential to [thel
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.
Claims against Schoppert
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
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
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
Claim against Barrett and Zies
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
ACLU of.IId.. Ille. \'. Wicomico
Cry, Md .. 999 F.2d 780. 785 (4th Cir. 1993).
"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
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
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.
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.
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
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
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