Horton v. Psychology department and officers of The North Branch correctional Institution et al

Filing 38

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 3/9/2018. (c/m 3/9/2018 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RICKY HORTON,

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Plaintiff,

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v.

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NANCY KOPP, et al.,

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Defendants.

Civil Action No. PWG-16-3086

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***
MEMORANDUM OPINION

Plaintiff Ricky Horton is an inmate incarcerated at North Branch Correctional Institution
(“NBCI”) in Cumberland, Maryland. Am. Compl. ¶ 3, ECF No. 4. Plaintiff alleges he was
improperly removed from Special Needs Unit (“SNU”) housing; he is receiving inadequate
medical treatment; and he was assaulted by a correctional officer. Id. Plaintiff initiated this
litigation pursuant to 42 U.S.C. § 1983, and also brings state law claims for assault, battery,
negligence, and medical malpractice. Pending is a Motion to Dismiss or, in the alternative, for
Summary Judgment filed by Warden Frank B. Bishop, Jr.,1 Mental Health Professional
Counselor–Advanced Bruce Liller, Psychology Associate I Lauren Beitzel, Acting Lieutenant
Janet Puffenbarger,2 Correctional Officer Timothy Marchinke, and Correctional Officer Cody
Gilpin.3 Def.’s Mot., ECF No. 27. Plaintiff has responded (ECF Nos. 29 & 37) and Defendants

1

In his response to the dispositive motion, Plaintiff states he wishes to dismiss his complaint
against Warden Bishop. Pl.’s Opp’n 3, ECF No. 29. Plaintiff’s voluntary dismissal of Warden
Bishop will be granted.
2
Acting Lieutenant Puffenbarger is referred to in Defendants’ Memorandum as a Sergeant. See,
e.g., Defs.’ Mem. 4, 29. However, in her sworn declaration Defendant Puffenbarger states that
she is an Acting Lieutenant at NBCI. Puffenbarger Decl. ¶ 2. Accordingly I will refer to her
throughout this opinion as Acting Lieutenant Puffenbarger.
3
Plaintiff also brings claims against Norma Halwager and Laura Wilson, who have not been
served with the Complaint as they resigned from state service. Acceptance and Rejection of
Service 2, ECF No. 20. The Complaint against them shall nevertheless be dismissed for the same
reasons as the other state defendants.

have filed a Reply and a Supplemental Reply. ECF Nos. 30 & 31. Plaintiff also has filed a
Court-permitted Surrebuttal. Surrebuttal, ECF No. 36. A hearing is unnecessary. See Loc. R.
105.6 (D. Md. 2016). Defendants’ motion, construed as a motion for summary judgment, will be
granted.4 Plaintiff’s claims for his removal from the Special Needs Unit will be dismissed with
prejudice. Plaintiff’s claims for the alleged assault and his inadequate medical treatment will be
dismissed without prejudice for failure to exhaust his administrative remedies. I decline to
exercise supplemental jurisdiction and therefore, his state law claims also will be dismissed
without prejudice.
Background
Alleged Improper Removal from the Special Needs Unit
Plaintiff alleges that he is disabled due to his psychological condition and that he meets a
number of statutory classifications including the Rehabilitation Act, 29 USC §§ 794 et seq. and
the Americans with Disabilities Act, 42 U.S.C. §§ 12101. Am. Compl. ¶¶ 16–18. He alleges that
Jenette Simmons and Vincent Siracusano also have not been served with the Complaint.
Id. Simmons and Siracusano are not state employees but rather are employed by MHMMaryland, Inc., the contractor who provides mental health services for state inmates. ECF No.
14-1. However, because I decline to exercise supplemental jurisdiction, Plaintiff’s state law
claims against Simmons and Siracusano for negligence and medical malpractice, respectively,
also will be dismissed. 28 U.S.C § 1367(c)(3).
4
Because the Defendants filed a motion to dismiss or in the alternative for summary judgment,
Plaintiff was on notice that the Court could treat the motion as one for summary judgment and
rule on that basis. “[T]he Federal Rules do not prescribe that any particular notice be given
before a Rule 12 motion is converted to a Rule 56 motion.” Ridgell v. Astrue, No. DKC–10–
3280, 2012 WL 707008, at *7 (D. Md. Mar. 2, 2012). Thus, this requirement “can be satisfied
when a party is ‘aware that material outside the pleadings is before the court.’” Walker v. Univ. of
Md. Med. Sys. Corp., No. CCB–12–3151, 2013 WL 2370442, at *3 (D. Md. May 30, 2013)
(quoting Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985)). Indeed, while the Court “clearly has an
obligation to notify parties regarding any court-instituted changes in the pending proceedings, [it]
does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports
Auth., 149 F.3d 253, 261 (4th Cir. 1998). Here, the title of the motion itself, “Motion to Dismiss
or, in the Alternative, Motion for Summary Judgment,” makes it obvious that the Court might
construe it as seeking summary judgment, and thereby provides sufficient notice to Plaintiff. See
Ridgell, 2012 WL 707008, at *7; see Laughlin, 149 F.2d at 260–61.
2

on August 13, 2014, he was placed in the Special Needs Unit (“SNU”) due to his “severe mental
health illness.” Id. ¶ 22. He alleges that he was removed from the SNU based on Ms. Wilson’s
disregard for policies and procedures. Id. ¶ 19. Further he alleges that Ms. Wilson and Mr. Liller
violated his rights when his removal was done “without conducting the adqaut [sic] and proper
Mental Health evaluation and knowing that [Plaintiff] suffer[s] from mental retardation that
warrants [his] placement on the special needs unit.” Id. ¶ 23. According to Defendants, they
moved Plaintiff to the SNU on a trial basis and determined he was not suited for participation in
the program. Liller Decl. ¶¶ 4–6, ECF No. 27-3.
Mental Health Evaluation and Care
Plaintiff generally alleges that his removal from the SNU and his diagnosis and treatment
have been inadequate. He alleges that since his removal and placement in the general population
he has received but not taken his medication regularly, has had his medication taken by other
inmates, and has been hallucinating. Am. Compl. ¶ 24; see also Med. R. 2, ECF No. 27-5
(“Horton has regularly claimed noncompliance with medications, stating that when he is in an
erratic, bad mood he finds it difficult to take his medications when given to him.”); Admin. R. 41,
ECF No. 27-6 (“He continues to state that his medications do not work due to his own
laziness/inability to up and take them.”). Plaintiff also alleges that he has had suicidal thoughts
and hid medication in his cell in an attempt to take his own life. Am. Compl. ¶¶ 37–39.
Plaintiff’s cellmate, Eric Mills, brought Plaintiff’s expression of suicidal thoughts to the attention
of NBCI. Id. at ¶ 40; Admin. R. 24–26, ECF No. 27-6. At that time, NBCI medical personnel
discussed what Mr. Mills reported with Plaintiff. See id. ¶¶ 41–42. Plaintiff alleges that he was
returned to his cell without “any precaution alerts.” Id. ¶ 42.

3

Alleged Assault on June 25, 2016
Plaintiff alleges that on June 25, 2016 he was being escorted in a chair with his hands
handcuffed behind his back to see Dr. Vincent Siracusano by Correctional Officer Marchinke,
when Correctional Officer Gilpin confronted him. Am. Compl. ¶¶ 55, 59. He alleges that prior to
that day he had “many words with [Gilpin] before.” Id. ¶ 55. Plaintiff alleges that while in the
hallway Correctional Officer Gilpin “became angry and unprofessional, and walk [sic] up and
snatched Mr. Horton out of the chair and started calling Mr. Horton dumb Black niggas.” Id.
¶ 56. Plaintiff alleges that Correctional Officer Gilpin then placed him in a headlock and “started
slinging Mr. Horton down the hallway by his neck.”

Id.

He further alleges that Acting

Lieutenant Puffenbarger ordered Correctional Officers Gilpin and Marchinke to put him in a strip
cell and that Correctional Officer Gilpin grabbed his arm and tried to break Plaintiff’s hand and
wrist. Id at ¶ 57. Lastly, Plaintiff alleges that as he was yelling in pain, Correctional Officers
Gilpin and Marchinke refused to provide him with medical attention. Id. ¶ 58. Correctional
Officers Gilpin and Marchinke deny under oath any wrongdoing. Marchinke Decl., ECF No. 279; Gilpin Decl., ECF No. 27-10.
Administrative Exhaustion
Plaintiff alleges that he has administratively exhausted his claims
[a]ll the way to Inmate Grievance Officer, but ha[]s not receive a response back
yet, but due to the fact that Mr. Ricky Horton[’s] life, health, and safety is in
imm[e]nent danger . . . prisoner a[d]vocates felt it in the best interest of [Plaintiff]
to help him file this law-suit [sic] before his psychosis disorder gets him kill by
staffs or inmates.
Am. Compl. ¶ 63. However, in his Opposition, Plaintiff admits he had not administratively
exhausted all of his claims when he initiated this suit, stating that he “wrote the courts in fear for
his life, while continuing to exhaust his administrative remedies with the state of Maryland.”
Pl.’s Opp’n 2.
4

Mental Health Claims5
Plaintiff filed a request for an administrative remedy procedure (“ARP”) (NBCI ARP
2658-15) on December 22, 2015, asking that he be put on a mental health plan to ensure his safety
and that of others, and to ensure he was taking his medications. Admin. R. 24–25. This request
arose after Plaintiff confessed to Mr. Mills that he had hidden medicine in their cell because he
was depressed and contemplating suicide.

Id.

Plaintiff’s request alleged that he received

inadequate medical care, that he should have been placed on a “caution alert” (due to his suicidal
thoughts), and that the prison was indifferent to the fact that he could “become psychotic and
dangerous.” Id. at 25.
On February 13, 2016, the Warden dismissed Plaintiff’s request, having found the
allegations did not have merit. Id. at 24. Plaintiff appealed the Warden’s decision. Id. at 20. The
Commissioner dismissed Plaintiff’s appeal having found that “no policy, procedure, rule,
regulation, or law has been violated” and that the prison staff “acted within the scope of their
training and license.” Id. at 19. Plaintiff then appealed to the Inmate Grievance Office (“IGO”)
on June 29, 2016. Neverdon Aff. ¶ 3(b), ECF No. 27-7. On January 25, 2017, the IGO
responded to Plaintiff that it required additional information from him as required by regulation;
however, IGO Executive Director Russell A. Neverdon has attested that Plaintiff has not

5

In his filings, Plaintiff repeatedly characterizes himself as suffering from various mental health
conditions and cognitive deficiencies. See, e.g., ECF No. 37. Mindful of Fed. R. Civ. P. 17(c)(2),
I reviewed his filings with an eye towards determining whether it was necessary to appoint a
guardian ad litem or other individual to represent his interests. Having done so, it is clear that the
Plaintiff has displayed no inability to clearly articulate his grievances (before this Court and in his
requests for administrative review from correctional officials), and has been notably articulate in
responding to the evidence and arguments raised by the Defendants. For this reason, I have
concluded that he is more than able to present his claims and arguments effectively, and it is
unnecessary to appoint a guardian or other individual to represent his interests.
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responded. Id. Neverdon also has sworn that “no final administrative decision has yet been
rendered on this grievance.” Id. ¶ 3(b).
Assault Claims
Plaintiff filed a request for an ARP (NBCI ARP 1546-16) on July 8, 2016, alleging that
Officer Gilpin attacked him as he was being escorted to his cell and used a racial epithet towards
him. Id. at 52. The Warden dismissed Plaintiff’s request on August 12, 2016, finding that there
was no evidence that Plaintiff was attacked by the staff. Id. Plaintiff appealed the Warden’s
decision to the Commissioner of Corrections on August 31, 2016. Id. at 48. On October 3,
2016—after Plaintiff filed this lawsuit—the Commissioner also dismissed his appeal having
determined that the “Warden fully addressed your initial complaint.

[Plaintiff] failed to

substantiate [his] claim that Officer Gilpin acted in a less than professional manner and assaulted
[him].” Id. at 49. On November 29, 2016, Plaintiff appealed the Commissioner’s ruling to the
IGO. Neverdon Aff. ¶ 3(c). A hearing was then scheduled to take place on May 11, 2017.6 Id.
Procedural History
Plaintiff filed this litigation on September 6, 2016. Compl., ECF No. 1. Plaintiff seeks
redress for alleged Eighth Amendment violations pursuant to 42 U.S.C. § 1983 against
(1) Correctional Officers Gilpin and Marchinke for excessive use of force; (2) Acting Lieutenant
Janet Puffenbarger for failing to protect Plaintiff as he was allegedly assaulted; (3) Bruce Liller
and Laura Wilson for inadequate medical treatment and removal from the SNU; and (4) Warden
Bishop for failing to take action. Am. Compl. ¶¶ 66–67, 69–70. Plaintiff also brings state law
claims against (1) Correctional Officers Cody Gilpin and Timothy Marchinke for assault and
battery; (2) Lauren Beitzel, Jenette Simmons, and Norma Halwager for negligence; and

6

The parties have not indicated whether this hearing took place, or if it did, its results.
6

(3) Vincent Siracusano for medical malpractice. Id. ¶¶ 64–65, 68. He also names Nancy Kopp
and the “Psychology Department and officers of the North Branch Correctional Institution” as
Defendants, although he does not state the claims brought against these Defendants. Defendants
Warden Bishop, Mr. Liller, Ms. Beitzel, Acting Lieutenant Puffenbarger, Correctional Officer
Marchinke, and Correctional Officer Gilpin moved to dismiss Plaintiff’s complaint, or in the
alternative for summary judgment, arguing he has failed to exhaust his administrative remedies,
that he is receiving adequate psychological treatment, and that he was not subjected to excessive
force.7 Defs.’ Mem. 3.
As already noted, Defendants’ motion, construed as a motion for summary judgment, will
be granted. Plaintiff’s claims for his removal from the Special Needs Unit will be dismissed with
prejudice and Plaintiff’s claim for the alleged assault and his inadequate medical treatment will be
dismissed without prejudice for failure to exhaust his administrative remedies. I decline to
exercise supplemental jurisdiction and therefore, his state law claims will be dismissed without
prejudice as well.
Standards of Review
Motion to Dismiss
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the
sufficiency of the plaintiff’s complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243
(4th Cir. 1999). The dismissal for failure to state a claim upon which relief may be granted does
not require defendant to establish “beyond doubt” that plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 561 (2007). Once a claim has been stated adequately, it may be supported by showing any
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Defendants also have moved to dismiss Plaintiff’s complaint, or in the alternative for summary
judgment, on additional grounds, should the Court conclude that Plaintiff exhausted his claims.
7

set of facts consistent with the allegations in the complaint. Id. at 563. The court need not,
however, accept unsupported legal allegations, see Revene v. Charles Cty. Comm’rs, 882 F.2d
870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, see Papasan v. Allain,
478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual
events, see United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
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
of 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. A “genuine” dispute of material fact is one
where the conflicting evidence creates “fair doubt”; wholly speculative assertions do not create
“fair doubt.” Cox v. Cty. of Prince William, 249 F.3d 295, 299 (4th Cir. 2001); see also Miskin v.
Baxter Healthcare Corp., 107 F. Supp. 2d 669, 671 (D. Md. 1999).

The substantive law

governing the case determines what is material. See Hooven–Lewis v. Caldera, 249 F.3d 259,

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265 (4th Cir. 2001). A fact that is not of consequence to the case, or is not relevant in light of the
governing law, is not material. Id.; see also Fed. R. Evid. 401 (defining relevance).
In Anderson, 477 U.S. at 249, the Supreme Court explained that, in considering a motion
for summary judgment, the “judge’s function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.” A dispute about
a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. at 248. Thus, “the judge must ask himself not whether he thinks the
evidence unmistakably favors one side or the other but whether a fair-minded jury could return a
verdict for the [nonmoving party] on the evidence presented.” Id. at 252.
The moving party bears the burden of showing that there is no genuine dispute as to any
material fact. There is no genuine dispute of material fact if the nonmoving party fails to make a
sufficient showing on an essential element of his case as to which he would have the burden of
proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Therefore, on those issues for
which the nonmoving party has the burden of proof, it is his responsibility to confront the
summary judgment motion with an affidavit or other similar facts “presented in a form that would
be admissible in evidence” showing that there is a genuine issue for trial. Fed. R. Civ. P.
56(c)(2); see also Ridgell, 2012 WL 707008, at *7; Laughlin, 149 F.2d at 260–61.
Analysis
Defendant Nancy Kopp
Section 1983 requires 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); West v. Atkins, 815 F.2d 993,
996 (4th Cir. 1987), rev’d on other grounds, 487 U.S. 42 (1988) (no allegation of personal

9

involvement relevant to the claimed deprivation); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.
1977) (in order for an individual defendant to be held liable pursuant to § 1983, it must be
“affirmatively shown that the official charged acted personally in the deprivation of the plaintiff’s
rights”) (quoting Bennett v. Gravelle, 323 F. Supp. 203, 214 (D. Md. 1971), aff’d, 451 F.2d 1011
(4th Cir. 1971)). Moreover, an individual cannot be held liable under § 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) (no respondeat superior liability under § 1983). Thus, to establish § 1983 liability, a
plaintiff must show that a defendant was personally involved in the alleged deprivation of his
constitutional rights, Vinnedge, 550 F.2d at 928–29, or establish the defendant’s liability as a
supervisor, see Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Supervisory liability may attach
under 42 U.S.C. § 1983 if (1) the defendant had actual or constructive knowledge that a
subordinate was engaged in conduct that posed a pervasive risk of a constitutional injury; (2) the
defendant’s response to that knowledge was so inadequate as to show deliberate inference to or
tacit authorization of the alleged offensive practices; and (3) there was an affirmative causal link
between defendant’s inaction and the alleged constitutional injury. Shaw, 13 F.3d at 799.
Defendant Nancy Kopp appears only once in Plaintiff’s Amended Complaint where
Plaintiff alleges that “Defendant The Honorable Nancy Kopp is the tresurer [sic] for the state of
Maryland and is generally responsible for the Tresurer [sic] Department and she is sued in her
individual and official capacity.” Am. Compl. ¶ 4. In his Surrebutal, Plaintiff referred to Nancy
Kopp as the “Head of Maryland Insurance Division” in arguing that the State has always been a
party and that he exhausted his state tort claims by filing it with her. Surrebuttal 2–3. As Plaintiff
has not alleged any participation in any event by Ms. Kopp or that she had knowledge of a
subordinate’s participation in an event and failed to respond adequately to that knowledge, she
10

cannot be held liable under § 1983. Therefore, Plaintiff’s claim against Ms. Kopp will be
dismissed. See Vinnedge, 550 F.2d at 928–29; Shaw, 13 F.3d at 799.
Defendant “Psychology department and officers of the
North Branch Correctional Institution”
To sustain an action under 42 U.S.C. § 1983, the plaintiff must demonstrate that: (1) he
suffered a deprivation of rights secured by the Constitution of the United States; and (2) the act or
omission causing the deprivation was committed by a person acting under color of law. West v.
Atkins, 487 U.S. 42, 48 (1988). There is no legal entity named “Psychology department and
officers of the North Branch Correctional Institution.” As such, “Psychology department and
officers of the North Branch Correctional Institution” is not a “person” subject to suit or liability
under § 1983, and Plaintiff’s claims against “Psychology department and officers of the North
Branch Correctional Institution” will be dismissed. Harden v. Green, 27 Fed. App’x 173, 178
(4th Cir. 2001) (“The medical department of a prison may not be sued, because it
is not a person within the meaning of § 1983.”) (citing Will v. Michigan Dep't of State Police, 491
U.S. 58, 70–71 (1989); Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973)).
Administrative Exhaustion
Defendants Mental Health Professional Counselor–Advanced Bruce Liller, Psychology
Associate I Lauren Beitzel, Acting Lieutenant Janet Puffenbarger, Correctional Officer II
Timothy Marchinke, and Correctional Officer II Cody Gilpin raise the affirmative defense that
Plaintiff has failed to exhaust his administrative remedies. Defs.’ Mem. 9–12. The Prison
Litigation Reform Act (“PLRA”) provides, in pertinent part, that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.”

42 U.S.C. § 1997e(a).
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“[T]he phrase ‘prison

conditions’ encompasses ‘all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong.’” Chase v. Peay, 286 F. Supp. 2d 523, 528 (D. Md. 2003) (quoting Porter v. Nussle, 534
U.S. 516, 532 (2002)), aff’d, 98 Fed. App’x 253 (4th Cir. 2004).
A claim that has not been exhausted may not be considered by this Court. See Jones v.
Bock, 549 U.S. 199, 220 (2007). In other words, exhaustion is mandatory. Ross v. Blake, 136 S.
Ct. 1850, 1857 (2016). Therefore, a court ordinarily “may not excuse a failure to exhaust.” Id. at
1856 (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining that “[t]he mandatory
‘shall’ . . . normally creates an obligation impervious to judicial discretion”)).

Moreover,

“[e]xhausting administrative remedies after a complaint is filed will not prevent a case from being
dismissed for failure to exhaust administrative remedies. Exhaustion is a precondition to filing
suit in federal court.” Kitchen v. Ickes, 116 F. Supp. 613, 624–25 (D. Md. 2015) (internal citation
omitted).
For most grievances filed by Maryland state prisoners, filing a request for administrative
remedy (“ARP”) with the prison’s managing official is the first of three steps in exhausting
administrative remedies as required under § 1997e(a). See Md. Code Regs. 12.07.01.04. The
ARP request must be filed within 30 days of the date on which the incident occurred, or within 30
days of the date the inmate first gained knowledge of the incident or injury giving rise to the
complaint, whichever is later. Id. at 12.07.01.05A. If the request is denied, a prisoner has 30
calendar days to file an appeal with the Commissioner of Correction. Id. at 12.07.01.05C. If the
appeal is denied, the prisoner has 30 days to file a grievance with the Inmate Grievance Office
(“IGO”). See Md. Code Ann., Corr. Servs. §§ 10-206, 10-210; Md. Code Regs. 12.07.01.03 and
12.07.01.05B. The IGO then reviews the complaint and either dismisses it without a hearing, if it

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is “wholly lacking in merit on its face,” or refers it to an administrative law judge for a hearing.
Corr. Servs. §§ 10-207, 10-208; Cts. & Jud. Proc. § 10-208(c); Md. Code Regs. 12.07.01.06A,
.07, .07B, .08. The administrative law judge, in turn, may deny all relief or conclude that the
inmate’s complaint is wholly or partly meritorious, after which the Secretary of DPSCS must
make a final agency determination within fifteen days of receipt of the proposed decision. See
Corr. Servs. § 10-209(b)-(c).
Although the above-described procedure applies when seeking to exhaust most types of
administrative remedies, a different administrative procedure applies when an inmate files a
grievance about certain subjects.

One such example is case management decisions, which

require the filing of a grievance directly with the IGO. OPS.185.0002.05F(1). “[H]ousing
assignments involve case management decisions that are not addressed through the ARP; rather,
case management decisions are to be addressed directly to the IGO,” and therefore administrative
remedies need not be exhausted for complaints about housing assignments. Gabriel v. DeVore,
No. JKB-16-471, 2017 WL 371801, at *8 (D. Md. Jan. 26, 2017); see also Hurt v. White, No.
DKC-14-1315, 2015 WL 1522944, at *10 (D. Md. Apr. 1, 2015) (“To the extent this claim raised
a case management issue regarding Plaintiff's enemies list and his housing assignment, it was not
addressable through the ARP process . . . .”).
Relevant to the claims presented in this case, Plaintiff has failed to complete the
administrative process as to his claims for failure to provide psychiatric care and for the alleged
June 25, 2016 assault. Plaintiff filed IGO No. 20161154 on June 29, 2016, arguing that he had
not been provided adequate psychological care. Neverdon Aff. ¶ 3(b). That complaint remained
pending when Plaintiff filed his Complaint on September 6, 2016. After filing this case, Plaintiff
filed IGO No. 20161925, on November 29, 2016, complaining of the alleged assault upon him by

13

Correctional Officer Gilpin. Id. ¶ 3(c). No final administrative decision had been reached
regarding that case when Plaintiff filed his Complaint and the hearing that was scheduled in the
manner had not even been held. Id. Plaintiff admits his failure to exhaust these two ARPs but
asks that he be excused or for the Court to delay deciding the manner until he has exhausted his
claims. Pl.’s Opp’n 2.
Exhausting administrative remedies after a complaint is filed will not save a case from
dismissal for failure to exhaust administrative remedies. See Neal v. Goord, 267 F.3d 116, 121–
22 (2d Cir. 2001) (overruled on other grounds). In Freeman v. Francis, 196 F.3d 641, 645 (6th
Cir. 1999), the court stated: “The plain language of the statute [§ 1997e(a)] makes exhaustion a
precondition to filing an action in federal Court . . . . The prisoner, therefore, may not exhaust
administrative remedies during the pendency of the federal suit.” See Kitchen v. Ickes, No. DKC14-2022, 2015 WL 4378159, at *8 (D. Md. July 14, 2015); Miller v. McConneha, et al., No. JKB15-1349, 2015 WL 6727547, at *3–4 (D. Md. Nov. 11, 2015). Therefore, Plaintiff’s claims
against Gilpin, Marchinke, Puffenbarger, Liller, and Wilson, alleging the denial of adequate
psychiatric care and use of excessive force (in the form of his assault allegations) are dismissed
without prejudice. It is unclear to the Court whether he still may be able to exhaust his claims
and, then file another suit; therefore, dismissal without prejudice is proper.
Removal from SNU Housing
Plaintiff’s claim against Bruce Liller and Laura Wilson that he should have remained in
the SNU was administratively exhausted even though it may not have needed to be, as it is a case
management decision. See Gabriel, 2017 WL 371801, at *8. Plaintiff filed his ARP (NBCI ARP
1653-15) on August 6, 2015 alleging that he must be housed in the SNU because placement in the
general population causes him to not take his medication and to become suicidal and that he was

14

removed without a proper medical evaluation. Admin R. 5–6. The Warden denied his appeal on
September 14, 2015 explaining to Plaintiff that
You [Plaintiff] were assessed for appropriateness on the SNU by your placement
there for that reason. Keep in mind that when it was determined that you were not
appropriate, you were recommended to General Population to which you did not
like the recommendation. Furthermore, you also engage in ‘self-diagnosis’ that
does not match the opinion of the trained mental health clinician’s [sic] that have
assessed you. Your administrative remedy allegations are without merit.
Id. at 5.

Plaintiff appealed the Warden’s decision to the Commissioner of Corrections on

September 17, 2015. Id. at 2. The Commissioner denied his appeal on November 6, 2015,
finding that his removal was “based on the needs of the unit and [Plaintiff’s] conduct while living
on the tier.” Id. at 3. Plaintiff appealed the Commissioner’s decision to the IGO (No. 20152224)
on November 23, 2015, and it was dismissed on April 22, 2016 because the IGO found Plaintiff
failed to state a claim for which relief could be granted. Neverdon Aff. ¶ 3(a). The IGO’s
decision was affirmed by the Circuit Court for Allegany County. Id. Therefore, regardless of
whether Plaintiff was required to exhaust his administrative remedies or not, his claims for
improper removal from the SNU are properly before the Court. See Gabriel, 2017 WL 371801, at
*8; 42 U.S.C. § 1997e(a).
The Eighth Amendment prohibits “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 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)). In order to state an Eighth Amendment claim
for denial of medical care, a plaintiff must demonstrate that the actions of the defendants or their
failure to act amounted to deliberate indifference to a serious medical need. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976).

15

Deliberate indifference is a very high standard—a showing of mere negligence
will not meet it . . . [T]he Constitution is designed to deal with deprivations of
rights, not errors in judgments, even though such errors may have unfortunate
consequences . . . To lower this threshold would thrust federal courts into the
daily practices of local police departments.
Grayson v. Peed, 195 F.3d 692, 695–96 (4th Cir. 1999).
Deliberate indifference to a serious medical need requires proof that, objectively viewed,
the prisoner plaintiff was suffering from a serious medical need and that, subjectively, the prison
staff were aware of the need for medical attention but failed to either provide it or ensure the
needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). To meet the
objective requirement, the medical condition at issue must be serious. See Hudson v. McMillian,
503 U.S. 1, 9 (1992) (there is no expectation that prisoners will be provided with unqualified
access to health care). A medical condition is serious when it is “one that has been diagnosed by
a physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008),
see also Scinto v. Stansberry, 841 F.3d 219, 228 (4th Cir. 2016) (failure to provide diabetic
inmate with insulin where physician acknowledged it was required is evidence of objectively
serious medical need). Proof of an objectively serious medical condition, however, does not end
the inquiry.
The subjective component requires “subjective recklessness” in the face of the serious
medical condition. See Farmer, 511 U.S. at 839–40. “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 Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995) (quoting Farmer, 511 U.S. at
16

844). If the requisite subjective knowledge is established, an official may avoid liability “if [he]
responded reasonably to the risk, even if the harm was not ultimately averted.” See Farmer, 511
U.S. at 844.
Reasonableness of the actions taken must be judged in light of the risk the defendant
actually knew at the time. See Brown v. Harris, 240 F.3d 383, 390 (4th Cir. 2000) (citing Liebe v.
Norton, 157 F.3d 574, 577 (8th Cir. 1998)) (holding that the focus should be on the precautions
actually taken in light of the known risk, not those that could have been taken), see also Jackson
v. Lightsley, 775 F.3d 170, 179 (4th Cir. 2014) (prescribing treatment raises fair inference that
physician believed treatment was necessary and that failure to provide it would pose an excessive
risk). While “a prisoner does not enjoy a constitutional right to the treatment of his or her choice,
the treatment a prison facility does provide must nevertheless be adequate to address the
prisoner’s serious medical need.” De’lonta v. Johnson, 708 F.3d 520, 525–26 (4th Cir. 2013)
(holding that an inmate pleaded a claim for deliberate indifference when the prison would not
evaluate her for surgery that was an approved treatment for her serious medical need despite her
repeated complaints regarding the ineffectiveness of her current treatment).

The right to

treatment is “limited to that which may be provided upon a reasonable cost and time basis and the
essential test is one of medical necessity and not simply that which may be considered merely
desirable.” Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977).
The SNU is a small, segregated population of individuals who “have a qualifying
diagnosis and who demonstrate behavioral stability to a level where they may function within the
structure of the program.” Liller Decl. ¶ 4. Plaintiff argues (although not in precise terms) that he
should still be housed in the SNU and that he was removed improperly without an evaluation or
any follow-up. Am. Compl. ¶ 19. Although Plaintiff alleges he was “placed” in the SNU, NBCI

17

personnel did not admit him to the unit after assessment and a determination that he met the
requirements to reside there, but rather permitted him to be housed there only for a “trial period”
to evaluate his ability to participate successfully in the program. Id. ¶ 5. Bruce Liller, the Mental
Health Program Manager who oversees the SNU at NBCI stated in his sworn declaration that
Inmate Horton was assessed for placement into the SNU by the members of the
SNU Treatment Team that included a trial period on the SNU as a nonparticipant.
After review, the members of the Treatment team did not find Inmate Horton
appropriate for the SNU and recommended him to general population.
Liller Decl. ¶¶ 5–6. Plaintiff placed into evidence his notice of assignment to the SNU; however,
the language of the document itself indicates it was not permanent, but rather, provisional, and
that his assignment to the SNU was “pending review of the circumstances.” See Notice of
Assignment, ECF No. 29-5. Ultimately, NBCI determined he should be placed in the general
population. Liller Decl. ¶ 6. Plaintiff’s dispute with NBCI does not allege or demonstrate an
Eighth Amendment violation.8 Further, Plaintiff is aware of the procedures by which he can
request mental health assessment and treatment, and has been assessed repeatedly for mental
health conditions and prescribed medication as indicated in the evidentiary record. See Admin. R.
31–47; Med. R. 2–28.
Despite Plaintiff’s allegations about his treatment and medical needs, the record is replete
with examples of where NBCI medical staff have found Plaintiff’s claimed medical needs to be
8

Plaintiff submitted an affidavit of another inmate, John Wagner, who stated “that the SNU
program is allegedly designed for prisoners with the exact disorders as Mr. Horton was
(sagaciously) allegedly removed for.” Wagner Aff. 2, ECF No. 37-1. While a proper affidavit
may be used as evidence to demonstrate there is a genuine dispute of material fact, the affiant
must have personal knowledge of the facts set forth in the affidavit, or, if expressing an opinion,
do so in a form that is admissible under Fed. R. Evid. 701 as a lay opinion, or Fed. R. Civ. P. 702,
as an expert, in order to be in a form that is admissible at trial, as required by Fed. R. Civ. P. 56.
John Wagner is an inmate at NBCI and his affidavit does not demonstrate that he has any medical
knowledge or training that would render admissible any of his opinions about the proper clientele
for a specialized unit like the SNU. Therefore, his testimony on this topic would not be
admissible at trial and does not create a genuine dispute of material fact that would preclude
imposing summary judgment. See id.; Fed R. Evid. 701, 702.
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overstated or contradictory, see Admin. R. 41, or that Plaintiff refuses to take medications or
submit to required lab draws, id. at 33 (“Per Psychiatry his Depakote was discontinued due to
repeated lab draw refusals dating back to July 2015. Horton denies ever refusing, but
documentation in EPHR shows RORs to the contrary. Horton has regularly claimed
noncompliance with medications, stating that when he is in an erratic, bad mood he finds it
difficult to take his medications when given to him.”).

Lauren Beitzel, a licensed clinical

professional counselor at NBCI documented in a health services report when Plaintiff was
claiming to be suicidal that
Horton stated that he needed a break from the walls of his own cell. After a
“vacation” in the holding cell he is “all better”. This writer [Beitzel] offered
resources and materials to him, but the only thing he wanted was to be on the
SNU tier and be “catered” to.
Med. R. 2; see also Beitzel Decl. ¶ 7, ECF No. 27-4 (“Horton described strange symptoms that
did not reflect the symptoms of valid hallucinations and when confronted he became belligerent.
There was evidence of malingering these symptoms for secondary gain.”).
Further, the medical records in evidence demonstrate that if he takes his medication,
Plaintiff agrees that he does not suffer from hallucinations or mood swings and is calmer. See
e.g., Admin. R. 35 (“. . . is taking Depakote, Clonidine and Haldol he denies acute problems He
states that his mood has been stable with meds. No psychosis or depression noted.”); 42 (“he
states that his meds keep him calm and without mood swings he states he has not hasd [sic]
hallucinations since being on Haldol He is not suicidal”). Thus, Defendants have supported their
motion with documents of the type that is admissible in evidence, which show that, contrary to
Plaintiff’s allegations, NBCI is treating Plaintiff for his psychosis and other medical needs.
Therefore, Plaintiff has not demonstrated that there is a genuine dispute of material fact that the
medication or treatment being provided to him is insufficient, let alone constitutionally

19

inadequate. The evidence produced by the Defendants demonstrates that Plaintiff has admitted
that he has been prescribed medication for this mental health conditions, but at times refuses to
take it, as well as that when he does take his medication, his symptoms dissipate. His refusal to
take his medication is not a failure of Defendants to provide it. Therefore, there is no genuine
dispute of material fact that NBCI is not deliberately indifferent to his medical needs. Instead,
this is merely a disagreement over treatment and Plaintiff’s desire to be housed in a different unit.
The Eighth Amendment does not guarantee that prisoners will receive the health care of
their choice or the medications they prefer, but only that serious medical conditions will not be
treated with deliberate indifference. Plaintiff merely demonstrates he has a disagreement with the
assessment of the medical personnel overseeing his treatment. Williams v. Corizon Med. Serv.,
DKC-12-2121, 2013 WL 4541684, at * 7 (D. Md. Aug. 26, 2013) (“Disagreement with a medical
provider does not amount to a violation of constitutional magnitude. An inmate’s difference of
opinion over matters of expert medical judgment or a course of medical treatment does not rise to
the level of a constitutional violation.”); Williams v. Bishop, RWT-12-1616, 2014 WL 4662427,
at *6 (“A prisoner’s strong desire to be in a single cell, based on his belief that his medical
conditions cause difficulties with cellmates, does not entitle him to housing in a single cell unless
medical providers have made a directive for a single cell based on a medical need. In this case,
there has been no such directive, and thus the Plaintiff’s claim amounts to a mere difference of
opinion over the preferred course of medical treatment.”) (citing DeFranco v. Wolfe, 2008 WL
596735, at *12 (W.D. Pa. Mar. 4, 2008)). NBCI has demonstrated that it did not determine that
Plaintiff should be admitted to the SNU but merely was evaluating whether admission would be
appropriate. Having concluded that he was not a proper candidate for the SNU, Med. R. 2
(stating he was looking to be “catered to” in the SNU); Beitzel Decl. ¶ 7 (reporting that Plaintiff

20

was complaining of symptoms for secondary gain), NBCI personnel recommended he be placed
in the general population. Liller Decl. ¶¶ 5–6. Moreover, Plaintiff is not entitled to a single cell
in the SNU merely because he thinks he would benefit from being housed there instead of in the
general population. See Williams, 2014 WL 4662427, at *6.
Therefore, Plaintiff’s claim against Laura Wilson and Bruce Liller regarding his removal
from the SNU will be dismissed. See Grayson, 195 F.3d at 695; Williams, 2013 WL 4541684, at
* 7 (citing Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010)).
State Law Claims
Plaintiff’s claims against Ms. Beitzel, Ms. Simmons, and Ms. Halwager for negligence
and Mr. Siracusano for medical malpractice all arise under state law. Am. Compl. ¶¶ 68–69.
When a district court “dismisse[s] all claims over which [it] enjoys original jurisdiction,” as I
have done by dismissing Plaintiff’s § 1983 claims, it “may decline to exercise supplemental
jurisdiction” over remaining state-law claims. 28 U.S.C. § 1367(c)(3). “[T]rial courts enjoy wide
latitude in determining whether or not to retain jurisdiction over state claims when all federal
claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). Having
dismissed all of Plaintiff’s § 1983 claims for which this Court has original jurisdiction, I will
decline to exercise supplemental jurisdiction over the remaining state-law claims. See 28 U.S.C.
§ 1367(c)(3).
Conclusion
Defendants’ motion will be granted. Plaintiff’s claims pursuant to § 1983 for his removal
from the SNU unit and against Mental Health Professional Counselor–Advanced Bruce Liller and
Laura Wilson will be dismissed with prejudice. Plaintiff’s Complaint is dismissed with prejudice

21

as to Warden Frank B. Bishop, the Honorable Nancy Kopp and “Psychology department and
officer of the North Branch correctional Institution.”
Plaintiff’s claims for the alleged assault on June 25, 2016 and for inadequate medical care
against Acting Lieutenant Janet Puffenbarger, Correctional Officer II Timothy Marchinke, and
Correctional Officer II Cody Gilpin, Bruce Liller, and Laura Wilson will be dismissed without
prejudice for Plaintiff’s failure to exhaust.

As I have declined to exercise supplemental

jurisdiction for the state law claims against Correctional Officers Cody Gilpin and Timothy
Marchinke and Mental Health Defendants Psychology Associate I Lauren Beitzel, Norma
Halwager, Jennette Simmons, and Vincent Siracusano, those claims will be dismissed without
prejudice. A separate Order follows.

March 9, 2018
Date

_______/S/_____________________
Paul W. Grimm
United States District Judge

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