Holbrook v. Gelsinger et al

Filing 17

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 2/26/2018. (kns, Deputy Clerk)(c/m 2/26/18)

IN THE UNITEI) STATES DISTRICT COURT
FOR THE DISTRICT OF MAI{YLAND

IGI3FEB2 b P 3: S8

Southern Division

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STEFON .1. HOLBROOK,

#357956,

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Plaintiff,

Case No.: G,III-17-146

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WARDEN DENISE GELSINGER,

etal.,

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Defendants.

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MEMORANDUM
PlaintiffStef<l!1
the Maryland
Defendants

Correetional

Institution

Elimination

Case Manager

Act. 34 U.S.c.

based on the Onicers'

* 30301

*

*

in Ilagerstown

("MClII"),

Correctional

Supervisor

pending before the Court is Defendants'

brings this

Onicers

I'I'IJ

segregation

at

se action against

Stephen Harbin and Randy

Corey Walker. under the Prison Rape

eIselI- ("rREA:'

alleged use of derogatory

*

OI'INION

an inmate I<mnerly housed in administrative

MClII Warden Denise Gelsinger.

Ilart. and Correctional

Presently

J. Holbrook.

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formerly cited as 42 lJ.S.c.

racial and sexual remarks.

I

* 156(1).

See ECF Nos. 1.3.

Motion to Dismiss. or in the Alternative.

Motion I<)r Summary

Judgment.

hearing is necessary.2

Loc. R. 105.6 (D. Md. 2016). For the 1<,lIowing reasons. Defendants'

Motion. construed

1

ECF No. 15. Plaintiffhas

not provided a response.

and nl'

as a Motion to Dismiss. is granted.

According to the Department or Public Safety's Division of Corrections' Office orData Processing.

IIolbrook is

currently housed al the Jessup Corrcctionallnstitutioll.
:! Pursuant to the dictntcs of !?ose/lo}'o \'. Garrison. 528 F.2d 309 (4tll Cir. 1975). on June 22. 2017. the Clerk of
Court informed lIolbrook that Defendants had tiled a llispositivc Illotion; that he had seventeen days in which to tile

written oppositions to the motion: and that if Holbrook failed to respond, the claim against Defendants could be
dismissed without fUl1her noticc. ECF No. 16. Holbrook has not filed an oppositioll.

I.

BACKGROUND3

PlaintitToriginally

wrote the Court complaining

violated. ECF No. I. In his Court-ordercd
interviewed

by a PREA Investigator

appears that PlaintitTattempted

Complaint.

PlaintitTalleges

that he was

to usc internal MCIIi reporting processes to lodge a complaint
that. on several occasions.

II art and Harbin made sexually

remarks towards him, including calling him a ..mack, Big Faggot'" a "waste ofa

man" and an "abomination'"
threatened

Supplemental

in 2016 but has "yet to hear any results'" ECF NO.3 at 2.' It

against the Ot1icers. I'laintitTalleges
discriminatory

that his rights undcr the PREA had bccn

See ECF NO.3 at 3. Plaintiff additionally

claims that Ilart has

to have inmates kill him because he was a "faggot"' and that inmates threaten him \\.ith

"Iude sexualunconsentual

[sic] acts" on a daily or weekly basis at the encouragement

of the

Otlicers. See ECF NO.3 at 2-3. Plaintiffalso

alleges that "ltJhe Warden and other supervising

employees

altogether."

neglect to entertain my complaints

ECF NO.1 at 2. I'laintitTrequests

injunctive relict: asking to be moved to another prison with a protective custody unit. and to be
awarded $400.00 a day in damages. ECF NO.3 at 3. In subsequent correspondence,
that Case Management

Supervisor

Walker be added as a Defendant because he allegedly told

Walker that he has been threatened

by a number of inmates at MCIH and Walker told him ..to

deal with [his] problems or be removed trom protective custody'"
II.

I'laintitTasks

ECF No.9.

STANDARD OF REVIEW

Because the Court only relies on the allegations
does not consider the exhibits attached to Defendants'
Defendants'

set forth in I'laintitrs

Complaint. and

motion, the Court will construe

motion as a Motion to Dismiss. See Fed. R. Civ. P. 12(d). The purpose of a motion

to dismiss pursuant to Fed. R. Civ. 1'. 12(b)(6) is to test the sut1iciency of the plaintiffs
The facts are taken from PlaintifTs Complaint and assumed 10 be true.
~ Pin cites to documents liIcd on the Court's electronic filing system (CM/ECF) refer 10 the pag.c Ilumbers generated
by that system.
.l

2

complaint. See £d,,'ar<l.I' \', eil)' oj'Goldsboro,

178 F,3d 231. 243 (4th Cir. 1999), To survive a

motion to dismiss invoking Federal Rule of Civil Procedure 12(b)(6). "a complaint must contain
sullicient factual matter. accepted as true. to 'state a elaimto relief that is plausible on its lacc ....
Ashcn!!!

l',

Iqbal, 556 U.S, 662.678 (2009) (quoting Bell Allalllic Corp, \', Tll'11l11h~l',
550 U.S.

544.570 (2007», "A claim has facial plausibility when the plaintilTpleads factual content that
allows the court to draw the reasonable inference that the defendant is liable fiJI'the misconduct
alleged."' Iqbal. 556 U.S, at 678. Once a elaim has been stated adequately. it may be supported
by showing any set of facts consistent with the allegations in the complaint. 7il'olllhl)'. 550 U,S,
at 563, The Court need not. however. accept unsupported legal allegations. see Re\'ene \', Charles
COUIII)' COIIIIII'rs, 882 F.2d 870. 873 (4th Cir. 1989). legal conclusions couched as filctual

allegations. see I'apasan

\', Allain. 478 U.S, 265. 286 (1986). or conclusory lilctual allegations

dcvoid of any reference to actual events. see Uniled Black Fire!ighl<'l's \', lIirsl. 604 F.2d 844.
847 (4th Cir. 1979).
III.

DISCUSSION

A. Prison Rape Elimination

Act

Plaintiff brings the subject action under the ('REA. which is intended to address the
problem of rape in prison. authorizes grant money. and creates a commission to study the issue.
However. inmates do not have a right to sue under the ('REA. See De1.onla \', Clarke. NO.7: 11cv-00483. 2012 WI. 4458648. *3 (W.D, Va. Sept. II. 2012) ("Nothing in the ('REA suggests
that Congress intended to create a private right of action for inmates to sue prison ollicials lill'
noncompliance with the Act"). afrd sub nom. De 'Lollia \'. I'I'/(ill. 548 F, App'x. 938 (4th Cir.
2013):

Guess \', O:::lIIinl. No, 9:08-3076-TLW-I3M. 2009 WI. 3255224. *9 (D. S.c. Oct. 7. 2(09)

("[SJeveral district courts have found that the I('REA J docs not create a right of action that is

,

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privatcly cnforccablc by an individual civillitigant.")

(citations omitted). Thcrcfore. Plaintiff

may not bring a claim undcr thc PREA.
H. Constitutional

Violations

Plaintiff does not cxplicitly bring a claimundcr 42 U.S.c.

* 1983. but providing thc

Complaint a libcral construction. thc Court considcrs thc claim under the statutc. Noncthelcss.
Plaintiffs Complaint also fails to adcquately plead facts suflicicnt to warrant rclicfunder
for deprivation of his constitutional rights under the Eighth Amcndment.; Srr Lin/or
263

r. Supp.

3d 613. 618-19 (E.D. Va. 2017) (citing !,'richon

I'.

* 1983

Po/son.

\'. Pal'l/us. 551 U.S. 89. 94 (2007)

("a 1'1'0 sr complaint. however inartfully pleaded. must bc held to less stringent standards than
fOnllal plcadings drafted by lawycrs")). ''IN]ot allundesirablc
unconstitutional."

Pink

I'.

bchavior by state actors is

Lrslrr. 52 FJd 73. 75 (4th Cir. 1995). Mcrc verbal abusc and taunting

of inmates by guards. including aggravating language. docs not statc a constitutional claim. Srr
McBride

I'.

Deer. 240 F.3d 1287. 1291 n. 3 (10th Cir. 200 I) ( "acts or omissions resulting in an

inmate being subjccted to nothing more than threats and vcrbal taunts do not violatc thc Eighth
Amendment"): lIel1.\/re \'. Lrll'is. 153 F. App'x 178. 180 (4th Cir. 2005) (citing Col/ins \'. C/II1«I'.
603 F.2d 825. 82 (10th Cir. 1979) ("Merc threats or \Hbal abuse by prison oflicials. without
more. do not statc a cognizable claim under

* 1983")). Consequcntly.

Iiolbrook's allegations that

the Ofticers verbally harasscd and threatened him on separate occasions arc not cnough to state a

* 1983 claim. Such a claim only accrues whcn thc thrcats or threatening conduct result in a
In his Supplemental Complaint. PlaintilTallcges that the "retaliation continues:" EeF NO.3 at 3. lie provides no
explanation of \\ihat retaliatory action occUlTed. however. nor docs he explain what protected activity was targeted
by the alleged retaliation. His bare and conclusory assertions of retaliation arc readily distinguishable from inmate
First Amendment retaliation claims recognized by the Fourth Circuit. 5iee Booker \'. Sowh Carolina Di!part11li!1I1 t!l
CorJ'i!criol7s. 855 F.3d 533. 545 (4th Cir. 2017). In Booker. the United Swtes COllrt of Appeals for the Fourth Circuit
ruled an inmate's "dewiled factual allegations" concerning disciplinary charges brought against him altcr hc
threatened suit against a l1lailroom supervisor for tampcring with his mail constitutcd a colorablc retaliation claim.
1£1. at 540. Plaintiffs Complaint does not contain similar allegations and will only be construed as an alleged Eighth
Amendmcnt violation.
S

constitutional dcprivation. See !!lId'pelh

1".

Figgills. 584 F.2d 1345 (4th Cir.1978) (allegations

that a guard threatened to have an inmate killed were suflicient to state a ~ 1983 claim when
threats were made to deny inmate's access to judicial relief): Lamar ". .'lIce/e. 698 F.2d 1286 (5th
Cir. 1983) (same).
The Eighth Amendment also "protects a convicted inmate from physical harm at the
hands of fellow inmates resulting Ii'om the deliberate or callous indifference of prison officials to
specific known risks of such harm:' See Pressly ".11111/0.816

F.2d 977. 979 (4th Cir. 1987).

"Prison conditions may be 'restrictive and even harsh.' but gratuitously allowing the beating or
rape of one prisoner by another serves no legitimate penological objective. any more than it
squares with evolving standards of decency. Being violently assaulted in prison is simply not
part of the penalty that criminal offenders pay li)r their oflenses against society:' Farmer ".
Brellllall. 511 U.S. 825. 833-34 (1994) (citations omitted). Ilowever. "a prison oflieial cannot be
found liable under the Eighth Amendment Ii))"denying an inmate humane conditions of
confinement unless the oflicial knows of and disregards an excessive risk to inmate health or
salety: the oflicialmust

both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists. and he must also draw the inference:" /d. at 837: see a/so
Rich \'. Bruce. 129 F.3d 336. 339--40 (4th Cir. 1997).
Ikcause Plaintiff has been translerred from MCIII. his request li)r injunctive relief has
been rendered moot. See Williams ". Gritfill. 952 F.2d 820. 823 (4th Cir. 1991). Furthermore.
Plainti ITdoes not allege that he experienced any physical harm Irom Defendants' conduct-at
the hands of either Delendants or the Ofticers. The Prison Litigation Relorm Act states that "no
tederal civil action may be brought by a prisoner confined in ajail. prison. or other correctional
facility. Ii)!'mental or emotional injury suflered while in custody without a prior showing of

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physical injury." 42 U.S.c.

S

I997e(e). It is settled law that a prior physical injury is required for

a prisoner to recover damages for any emotional and mental injury. See Sig/ar v. High/ower. 112
F.3d 191. 193-94 (5th Cir. 1997). Accordingly. Plaintiff fails to state a plausible claim for relief
under the Eighth Amendment and his Complaint must be dismissed.
IV.

CONCLUSION
For the foregoing reasons. Defendants' Motion. construed as a Motion to Dismiss. ECF

No. 15. shall be granted. A separate Order tollows.

Dated: Februarvt.c,

2018
GEORGE J. HAZEL
United States District Judge

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