Leysath et al v. State of Maryland et al

Filing 34

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/6/2018. (jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT CORT
FOR THE DISTRICT OF MARYLAND
Southern Division

ESTATE OF LOUIS STANLEY
LEYSATH, III, et al.
Plaintiffs,

Case No.: GJH-17-1362

V.

STATE OF MARYLAND, et al.
Defendants.
*

*

*

MEMORANDUM OPINION
Louis Stanley Leysath, III ("Leysath'') was incarcerated at the Jessup Correctional
Institution ("JCI") in Jessup, Maryland when, on February 20, 2015, he died from thermal
injuries after breaking an exposed radiator steam pipe in his cell. Leysath's wife, Morgan
Leysath, father, Louis Leysath, Jr., and mother, Cheryl Leysath. individually and on behalf of
Leysath's estate, (collectively, "Plaintiffs") bring claims under Maryland tort law and the U.S.
Constitution against the State of Maryland, Stephen T. Moyer, Secretary of Public Safety for the
Maryland Department of Public Safety and Correctional Services, Officer Marcel JatT, Officer
Betty Knox, Sergeant Gerald Coleman, Sergeant Foluso Fekoya, Lieutenant Boenhflahn Herring,
Lieutenant Gena Addison, Major James Harris, Captain Odette Henry- McCarthy, (collectively,
"the Correctional Officers"), Dr. Lynda Bonieskie, and Dr. Jacqueline Moore (collectively,
"Defendants").' ECF No. 1. Presently pending before the Court is Defendants' Motion to
Dismiss, or in the Alternative, Motion for Summary Judgment. ECF No. 30. No hearing is
Plaintiffs' Complaint also named Dr. Syed Rizvi as a defendant but Plaintiffs have filed a notice of voluntary
dismissal as to Rizvi. ECF No. 31. Rizvi's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment,
ECF No. 26, is therefore denied as moot.

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necessary. Loc. R. 105.6 (D. Md. 2016). For the following reasons, Defendants' Motion is
granted.
I.

BACKGROUND
The facts of this case, as alleged by Plaintiffs and set forth in Defendants' Motion, are not

in dispute. On the morning of February 19, 2015, a XI officer observed that Leysath was
exhibiting odd behavior and brought him to Dr. Moore for evaluation. ECF No. 30-4 III 3. Dr.
Moore evaluated Leysath for 20-30 minutes, during which Leysath stated that he "saw spirits."
Id. ¶ 6. This was the first time Dr. Moore had evaluated Leysath, but mental health records
indicated that Leysath had a prior history of mood swings and hearing voices, and that he had
been prescribed psychotropic medications in 2011; however, the medications were discontinued
in November 2012 after "he was deemed clinically stable despite medication noncompliance."
Id. ¶ 4. Given Leysath's exhibited behavior, as a precaution, Dr. Moore recommended that he be
placed on close observation due to "possible delirium." Id. II 7. Dr. Moore also immediately
referred Leysath for both a psychiatric and medical evaluation. Id. ¶ 7; ECF No. 30-5. Dr.
Moore's supervisor, Dr. Bonieskie, Deputy Director of Mental Health Services, was aware of,
and concurred with, Dr. Moore's approach. ECF No. 30-6.
Per Dr. Moore's direction, Leysath was placed on close observation in an observation
cell, containing only a metal sink, toilet, sprinkler head, and wall radiator. ECF No. 30-6 4115.
Observation cells do not contain a bed, bedding, or electrical outlets, and the inmate must wear a
specially designed smock designed to prevent self-injury. Id. Close observation is intended for
inmates exhibiting suicidal inclinations or odd behavior as a result of changes in mental statt..s.
ECF No. 30-4 117. While under close observation, an inmate is monitored by correctional

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officers as well as inmate observation aides positioned outside of an inmate's cell. See ECF No.
30-6 II 6; ECF No. 30-7.
At approximately 6:50 p.m. on February 19, inmate Luis Aguillar. Leysath's assigned
observation aide, informed Officer Knox that Leysath was agitated and had broken the metal
cover off of the wall radiator in his cell. ECF No. 30-9. The metal cover spans several feet in
length and is secured to the radiator to cover the radiator steam pipes that run horizontally near
the floor and provide heat to the cell. ECF Nos. 30-8; 30-11. Officer Knox informed Sergeant
Coleman that the cover was detached, and Coleman then responded to Leysath's cell and notified
his shift supervisor, Lieutenant Herring, of the situation. ECF No. 30-8 ¶ 6. Lieutenant Herring
in turn notified Captain McCarthy, who deemed the detached radiator cover to be a hazard and
instructed Lieutenant Herring to remove it prior to returning Leysath to the cell. ECF No. 30-12
114. Captain McCarthy then informed the shift commander, Major Harris, who agreed with the
response. ECF No. 30-13 ¶ 4.
Leysath was temporarily removed from his cell while Sergeant Coleman, with Lieutenant
Herring and Lieutenant Addison present, removed the detached radiator cover. Leysath was then
returned to his cell, and because the radiator cover had been removed, the radiator's steam pipes
were exposed. ECF No. 30-8 ¶ 7. While these correctional officers maintain that Leysath was
calm throughout this process, Trian Brown, the assigned inmate observation aide that evening,
noted that Leysath banged on the door and talked to himself, saying that "they were doing
something to his wife downstairs." ECF No. 30-16.
At approximately 3:20 a.m. the following morning, Leysath became agitated, claimed
that he was going to kill someone for killing his wife, and flooded his cell. ECF No. 30-10.
Officer Jaff notified Sergeant Fekoya, who observed that Leysath had removed his smock and

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appeared to be clogging the sink with it. ECF No. 30-17 4. Although Leysath's cell was
flooding, the water was not hot, and Sergeant Fekoya did not consider the flooding to be an
emergency warranting Leysath's removal from the cell. Id. TT 4, 6 (noting that because Leysath
was on close observation, Fekoya could not remove him from the cell unless there was an
emergency or upon approval from his supervisors). Sergeant Fekoya noted that Leysath was
"laughing and running around in the cell naked" but moved to a different cell while Officer Jaff
and Brown remained nearby. ECF No. 30-17 117.
At approximately 4:00 a.m., Sergeant Fekoya heard a loud sound from Leysath's cell and
an inmate saying "Oh, we think he has bust the steam. He has bust the steam.- Id. ¶ 8. Sergeant
Fekoya observed steam through the window into Leysath's cell and made three separate radio
transmissions to his supervisors. Id ¶ 9-10. At some point, Sergeant Fekoya opened the feed slot
in the cell door and observed Leysath lying on the ground, unresponsive. Id. II 11. At
approximately 4:12 a.m., prior to the arrival of his supervisors, Sergeant Fekoya deemed the
situation to be a medical emergency and, with the assistance of Officer Jaff, removed Leysath
from his cell. Id. ¶ 12. Shortly thereafter a nurse arrived to administer CPR, but Leysath was
pronounced dead at 4:58 a.m. due to thermal injuries sustained from the detached steam pipes.
Id.; ECF No. 30-19 (Autopsy Report).
Plaintiffs filed suit in this Court on May 18, 2017, asserting the following claims against
the State of Maryland, Secretary Moyer in his official capacity, and the remaining Defendants in
their individual and official capacities: Negligence against Moore and Bonieskie (Count I);
Negligence against the Correctional Officers (Count II); Negligence against the State (Count III);
Wrongful Death (Count IV); Survival Action (Count V); Violation of Leysath's Civil Rights by

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Moore and Bonieskie (Count VI); Violation of Leysath's Civil Rights by the Correctional
Officers (Count VII). ECF No. 1.2
STANDARD OF REVIEW
Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil Prccedure
12(b)(6) or, in the alterative, for summary judgment pursuant to Rule 56. ECF No. 30. Pursuant
to Rule 12(b)(6), a court may dismiss a complaint for failure to state a claim upon which relief
can be granted. When deciding a motion to dismiss, a court "must accept as true all of the factual
allegations contained in the complaint," and "draw all reasonable inferences [from those facts] in
favor of the plaintiff" E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 4:75, 440
(4th Cir. 2011) (citations and internal quotation marks omitted). Pursuant to Rule 8(a)(2) of the
Federal Rules of Civil Procedure, a complaint must contain a "short and plain statement of the
claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a motion
to dismiss invoking Rule 12(b)(6), "a complaint must contain sufficient factual matter. accepted
as true, 'to state a claim to relief that is plausible on its face.' Ashcroft V. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell At!. Corp. v. Twombly, 550 U.S. 544. 570 (2007)).
Defendants' motion is styled as a motion to dismiss, or in the alternative, for summary
judgment. A court considers only the pleadings when deciding a Rule 12(b)(6) motion. Where
the parties present matters outside of the pleadings, and the Court considers those matte-s. the
court will treat the motion as one for summary judgment. See Gadsby v. Grasmick, 109 F.3d
940, 949 (4th Cir. 1997); Mansfield v. Kerry, No. DKC-15-3693, 2016 WL 7383873, at *2 (D.
Md. Dec. 21, 2016). All parties must be given some indication by the Court that it is treating a
motion to dismiss as one for summary judgment, "with the consequent right in the opposing

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Plaintiffs counts are incorrectly numbered in the Complaint, so the Court will refer to the counts based Dn the
order in which they appear. ECF No. I.

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party to file counter affidavits or pursue reasonable discovery." Gay v. Wall, 761 F.2d 175, 177
(4th Cir. 1985).
When the moving party styles its motion as a "Motion to Dismiss or, in the Alternative,
for Summary Judgment," as in the case here, and attaches additional materials to its Motion, the
non-moving 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 Laughlin v. Metropolitan
Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998). A court may grant a motion for
summary judgment only if there exists no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A material fact is one that
constitutes an element that is essential to a party's case. Celotex Corp. v, Catrett, 477 U.S. 317,
322-23 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ("the
substantive law will identify which facts are material").
A genuine issue as to a material fact exists if the evidence that the parties present to tZe
court is sufficient to indicate the existence of a factual dispute that could be resolved in the nonmoving party's favor through trial. See Anderson, 477 U.S. at 248-49. While it is the movant's
burden to show the absence of a genuine issue of material fact, Pulliam Inv. Co., Inc. v. Cameo
Properties, 810 F.2d 1282, 1286 (4th Cir.1987), it is the non-moving party's burden to establish
its existence, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87
(1986), and "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor." Anderson, 477 U.S. at 255.

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III. DISCUSSION
A. Sovereign Immunity
Plaintiffs' claims against the State, and State employees acting in their official capacity,
are barred by the Eleventh Amendment of the U.S. Constitution. Under the Eleventh
Amendment, a State, including its agencies and departments, is immune from suit brought by its
citizens or the citizens of another state in Federal court without the State's consent. Pennhurst
State Sch. & Hosp. V. Halderman, 465 U.S. 89, 100 (1984). The Fourth Circuit has recognized
three exceptions to the Eleventh Amendment:
First, Congress may abrogate the States' Eleventh Amendment immunity when it
both unequivocally intends to do so and acts pursuant to a valid grant of
constitutional authority. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356,
363 (2001). . . . Second, the Eleventh Amendment permits suits for prospective
injunctive relief against state officials acting in violation of federal law. Frew ex
rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). . . . Third, a State remains free to
waive its Eleventh Amendment immunity from suit in a federal court. Lapides v.
Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002).
See Hyde v. Maryland State Board of Dental Examiners, No. 1:16-cv-02489-ELH, 2017 WL
2908998, at *6 (D. Md. July 7, 2017) (citing Lee-Thomas v. Prince George's Cnty. Pub. Sch.,
666 F.3d 244, 249 (4th Cir. 2012)).
None of these exceptions are applicable herein. First, Plaintiffs' civil rights claims in
Counts VI and VII are brought as violations of the Eighth Amendment under 42 U.S.C. § 1983.
See 42 U.S.C. § 1983 (creating civil liability for leivery person who, under color of any statute,
ordinance, regulation, custom, or usage, of any state or territory, subjects, or causes to be
subjected, any citizen of the United States. . . to the deprivation of any rights. . . secured by the
Constitution"). Congress has not abrogated Eleventh Amendment immunity for such claims. See
Will v. Michigan Dept. of State Police, 491 U.S. 58, 68 (1989) (by use of the term "person'. in
Section 1983, Congress did not intend to override State immunity). Second, Plaintiffs seek
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damages, not prospective injunctive relief. Third, Maryland has not waived its sovereign
immunity for the tort claims alleged in Counts I-V. Under the Maryland Tort Claims Act
("MTCA"), Maryland's waiver of sovereign immunity is limited to suits in "a court of the State."
See Md. Code State Gov't § 12-104(a); see also § 12-103(2) ("This subtitle does not. . . waive
any right or defense of the State or its units officials or employees in an action in a court of the
United States . . . including any defense that is available under the 11th Amendment-). And the
Fourth Circuit has been equally clear—Maryland's waiver of sovereign immunity under the
MTCA is not enough to waive immunity guaranteed by the Eleventh Amendment See Weller v.
Dept. of Social Services. for City of Baltimore, 901 F.2d 387, 397-98 (4th Cir. 1990).
Plaintiffs do not dispute that the MTCA bars their tort claims against the State in federal
court, but incorrectly argue that the MTCA constitutes a legislative waiver of sovereign
immunity for claims under § 1983. See ECF No. 32 at 3-4.3 Nor may Plaintiffs avoid the State's
sovereign immunity by asking the Court to retain supplemental jurisdiction over these claims.
See ECF No. 32 at 4 (citing 28 U.S.C. § 1367(d)). The Supreme Court has held that 28 U.S.C.
§ 1367 does not authorize district courts to exercise supplemental jurisdiction over claims against
nonconsenting States. Raygor v. Regents of the Univ. of Minnesota, 534 U.S. 533, 541-42
(2002); see also Pennhurst, 465 U.S. at 121.
Furthermore, claims against State defendants acting in their official capacities are
similarly barred by the Eleventh Amendment. See Ballenger v. Owens, 352 F.3d 842, 845 (4th
Cir. 2003) ("[F]or purposes of the Eleventh Amendment, a state official acting in his official
capacity is protected from a damages action by the same immunity [as the State].)-; see also
Brandon v. Holt, 469 U.S. 464, 471-72 (1985) ("a judgment against a public servant 'in his

Pin cites to documents filed on the Court's electronic filing system (CM/ECF) refer to the page numbers generated
by that system.

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official capacity' imposes liability on the entity that he represents") (citation omitted). Therefore,
all claims against the State of Maryland, Secretary Moyer, the remaining State defendants in
their official capacities, and Count III in its entirety, must be dismissed.
B. Maryland Tort Claims
1. Claims against Drs. Moore and Bonieskie (Count I)
Pursuant to the Maryland Health Care Malpractice Claims Act ("HCMCA"), Plaintiffs
must first file a claim with the Maryland Health Care Alternative Dispute Resolution Office
("HCADRO") and waive arbitration prior to bringing a claim for "medical injury" against health
care providers in State or Federal court. See Md. Code, Cts. & Jud. Proc. § 3-2A-02(aX1);
§ 3-2A-04; see also Zander v. United States, 843 F. Supp. 2d 598, 605 (D. Md. 2012) (plaintiffs
filing medical malpractice suits in federal district court must comply with HCMCA's
preconditions just as they would when filing suit in Maryland state court). Count I alleges that
Drs. Moore and Bonieskie were negligent in "failing to provide adequate medical treatment
and/or mental health services," ECF No. 1 ¶ 51, and is therefore a claim for medical injury. See
§ 3-2A-01(g) (defining medical injury as an "injury arising or resulting from the rendering or
failure to render health care"); see also Manzano v. Southern Maryland Hosp., Inc., 698 A.2d
531, 535 (Md. 1997) (noting that the HCMCA imposes a mandatory requirement that medical
negligence cases be submitted to arbitration). Because Plaintiffs have not filed a claim with
HCADRO, Count I must be dismissed.4
2. Claims against Correctional Officers (Counts H, IV, V)
Because the State and Secretary Moyer are immune from suit, the remaining counts may
only be raised against the Correctional Officers in their individual capacities. However, under the

While Plaintiffs argue that HCMCA requirements are not applicable to their § 1983 claim against the doctors,
Plaintiffs do not dispute that these requirements bar their negligence claim.

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MTCA, State personnel are immune "from liability in tort for a tortious act or omission that is
within the scope of the public duties of the State personnel and is made without malice or gross
negligence." See Md. Code, Cts. & Jud. Proc. § 5-522(b) (2006); see also Lee v. Cline, 863 A.2d
297, 310 (Md. 2004) (holding that MTCA immunity also encompasses Maryland constitutional
torts and intentional torts). Malice under the MTCA is "conduct characterized by evil or
wrongful motive, intent to injure, knowing and deliberate wrongdoing, ill will or fraud."
Shoemaker v. Smith, 725 A.2d 549, 559-60 (Md. 1999) (internal citations omitted). Gross
negligence is "an intentional failure to perform a manifest duty in reckless disregard of the
consequences as affecting the life or property of another, and also implies a thoughtless disregard
of the consequences without the exertion of any effort to avoid them.- Beall v. HollowayJohnson, 130 A.3d 406, 415 (Md. 2016).
While the line between negligence and gross negligence is not easily discernable. id.,
Plaintiffs' Complaint fails to even allege that the Correctional Officers crossed that line.
Nowhere in the Complaint do Plaintiffs suggest that the Correctional Officers took any knowing
or willful actions against Mr. Leysath or even mention the words "malice" or "gross negligence.'
Plaintiffs, in opposition to Defendants' Motion, argue that the Correctional Officers' decision to
put Leysath back into the cell with the exposed radiator constituted gross negligence, ECF No.
32 at 6. However, Plaintiffs' Complaint fails to make any distinction between this decision and
every other allegedly negligent act undertaken by the Correctional Officers. Further, Plaintiffs
cannot amend deficiencies in their Complaint with arguments made in their brief. See Southern
Walk at Broadlands Homeowner's Ass Inc. v. OpenBank at Broadlands, LLC, 713 F.3d 175,
184 (4th Cir. 2013) ("It is well-established that parties cannot amend their complaints through

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briefing or oral advocacy."). Because Plaintiffs remaining tort claims are brought as claims of
negligence, Counts II, IV, and V must also be dismissed.5
C. Eighth Amendment Claims6
Plaintiffs allege that Defendants failed to respond to Leysath's delirious behavior and
provide adequate care and thus violated the Eight Amendment's prohibition on cruel and unusual
punishment. ECF No. 1 ¶ 122, 144. The Eighth Amendment's prohibition on cruel and unusual
punishment "imposes certain basic duties on prison officials." Raynor v. Pugh, 817 F.3d 123,
127 (4th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Those duties
include providing adequate medical care and reasonable measures to guarantee an inmate's
safety. Id. In considering an Eighth Amendment claim, the Court employs both an objective and
subjective inquiry. Id. First, the Court must determine whether Defendants subjected the inmate
to "a serious deprivation of his rights in the form of a serious or significant physical or emotional
injury." Id. (citing Danswer v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014)). Leysath's
injuries led to his death, and there is no dispute that he suffered a serious or significant physical
injury. See ECF No. 30-1 at 18.
Second, the Court must determine whether Defendants displayed a deliberate indifference
to Leysath's health and safety, which must be established through evidence that Defendants had
"actual knowledge of an excessive risk to the plaintiff's safety." Raynor, 817 F.3d at 128 (citing
Danser, 772 F.3d at 347). To establish actual knowledge, Defendants must "be aware of facts
While Counts IV and V are not labeled as such, they are also brought under the theory of negligence. See ECF No
1 ¶¶ 95, 105. Furthermore, because the Court finds that the MTCA bars negligence claims against all individual
defendants, the Court need not consider Defendants' public official immunity argument made on behalf of the
Correctional Officers. ECF No. 30-1 at 27.
" As the Court will rely on materials outside of Plaintiffs' Complaint, Defendants' Motion is construed as one fDr
summary judgment for Counts VI and VII. While the parties dispute whether Defendants acted with deliberate
indifference, Plaintiffs do not dispute any of the underlying facts. Nor have Plaintiffs indicated that Defendants'
motion for summary judgment prior to the start of discovery is premature. See Celotex Corp. v. Catrett, 477 U.S.
317, 326 (1986) (noting that a party can invoke Federal Rule of Civil Procedure 56(d) if facts essential to its
opposition are not available to it)).
5

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from which the inference could be drawn that a substantial risk of serious harm exists, and [bey]
must also draw the inference." Raynor, 817 F.3d at 128 (citing Farmer, 511 U.S. at 837).
Alternatively, actual knowledge may be established through circumstantial evidence if "a
factfinder may conclude that a prison official knew of a substantial risk from the very fact that
the risk was obvious." Id. And while Defendants are absolved from liability under the Eighth
Amendment if their response to Leysath's condition was reasonable, see Raynor, 817 F.3d at 128
(citing Farmer, 511 U.S. at 844), the inverse is not necessarily true—negligent, stupid, or lazy
conduct alone does not establish an Eighth Amendment violation. See Rich v. Bruce, 129 F.3d
336, 340 (4th Cir. 1997) (holding that a defendant having actual knowledge of facts from which
a reasonable person might have inferred the existence of a substantial and unique risk to an
inmate was insufficient to establish an Eighth Amendment violation).
1. Claim Against Drs. Moore and Bonieskie (Count VI)
Plaintiffs argue that Drs. Moore and Bonieskie were deliberately indifferent to Leysa:h's
agitated mental state by failing to provide adequate mental health services, develop a
comprehensive plan of treatment and care, monitor Leysath's behavior, and ensure that Leysath
was confined in a safe environment. ECF No. 1 'll 119. While Drs. Moore and Bonieskie were
aware that Leysath would be placed in a close observation cell that included a wall radiator, ECF
No. 30-6 ¶ 5, the record provides no facts to suggest that Drs. Moore and Bonieskie were aware
that the radiator cover had been removed. Nor does the record suggest that their decision to place
Leysath under close observation was unreasonable. But even if a reasonable physician would
have taken a more drastic response, such as immediately medicating Leysath, or personally
observing Leysath throughout his time under close observation, "[m]edical malpractice does not
become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble.

12

429 U.S. 97, 106 (1976). Drs. Moore and Bonieskie were not deliberately indifferent and cannot
be held liable for any constitutional violations.
2. Claim Against Correctional Officers (Count VII)
Finally, Plaintiffs allege that the Correctional Officers acted with deliberate indifference
to Leysath's agitated mental state by returning him in his close observation cell with exposec
steam pipes and failing to promptly provide medical care and remove him from the ce I once the
pipes were broken. ECF No. 1 ¶ 138. As discussed, the Court may not find that the Ccrrectional
Officers were deliberately indifferent to Leysath's agitated mental state simply becauw their
actions were unreasonable or negligent. As the Fourth Circuit has explained:
In Farmer, the Supreme Court noted that officials "may be found free from
liability if they responded reasonably" to a perceived risk. 511 U.S. at 844. This
observation, of course, must be true because if the official's response was
reasonable—i.e., not negligent—then a fortiori he was not deliberately
indifferent. It does not follow, however, that when an officer's response is
unreasonable—i.e., negligent—that he is liable for deliberate indiffererce. Indeed,
we have noted that an officer's response to a perceived risk must be moire than
merely negligent or simply unreasonable. See Brown, 240 F.3d at 390-1 ("At
most, [the officer's] failure to take additional precautions was negligent [i.e.,
unreasonable under the circumstances], and not deliberately indifferent.). If a
negligent response were sufficient to show deliberate indifference, the Supreme
Court's explicit decision in Farmer to incorporate the subjective recklessness
standard of culpability from the criminal law would be effectively negated.
See Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 306-07 (4th Cir. 2004).
Under this "subjective recklessness" standard, the Correctional Officers must have had
both knowledge of the general risk of injury and knowledge that their conduct was inappropriate
in light of that risk. See Rick, 129 F.3d at 339 n.2 (4th Cir. 1997). Clearly the Correctional
Officers (less Officer Jaff and Sergeant Fekoya) could have found a safer alternative than leaving
Leysath alone with an exposed steam pipe, and their decision to do so may not have been

13

reasonable. These Officers were aware of Leysath's at-risk mental state as made clear by housing
him under close observation and removing the detached radiator cover from his cell to mitigate
the risk posed by the cover itself. However, the record does not suggest that the Officers knew
that leaving Leysath alone with an exposed steam pipe was inappropriate in light of the risk he
posed to himself. The Officers were not aware of any prior incidents of an inmate sustaining an
injury from an exposed steam pipe and did not perceive the exposed pipes to present an
unreasonable risk given that Leysath would be closely monitored. See, e.g., ECF No. 30-13 94,
5 (Affidavit of Major Harris); ECF No. 30-7 (Inmate Observation Aide Manual indicating that
inmate aides "shall have a constant, direct line of sight with the inmate being observed for the
entire duration of their shift").
Indeed, inmate observation aides monitored Leysath and recorded their checks every 15
to 30 minutes throughout his time in close observation, ECF No. 30-10, and the record does not
indicate that the Correctional Officers or inmates were aware of Leysath's attempts to damage
the steam pipes until after he had broken them. See ECF No. 30-18 (inmate observation aide
statement indicating that inmate informed officer of Leysath's condition after steam pipe was
broken). The Correctional Officers' failure to prevent Leysath from harming himself. without
recognizing that the exposed steam pipes posed a specific risk to his safety, does not rise to the
level of deliberate indifference. See Brown v. Harris, 240 F.3d 383, 390-91 (4th Cir. 2001)
(holding that prison official's decision to place suicidal inmate on "medical watch" but failing to
place inmate in paper gown or order medical examination was not deliberate indifference in light
of inmate's subsequent suicide). While Plaintiffs assert that the Correctional Officers should
have recognized this risk, they fail to offer any additional circumstantial evidence to suggest that
an exposed steam pipe was a known danger to an unstable inmate who was being closely

14

monitored. See Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (known dangers are the
kinds of issues that are "longstanding, pervasive, well-documented, or expressly noted by prison
officials in the past-). Nor was this risk so blatantly obviously that the Correctional Officers'
failure to recognize it would justify an inference of actual knowledge. See Parrish, 372 F.3d at
305 (4th Cir. 2004).
Furthermore, the record does not suggest that Sergeant Fekoya's delay in retrieving
Leysath from his cell was an act of deliberate indifference. The Court notes that the record,
including video surveillance footage, ECF No. 30-15, leaves open questions as to what exactly
transpired between the time Leysath broke the steam pipes and the time Sergeant Fekeya and
Officer Jaff retrieved him from the cell. The record does not contain an affidavit from Officer
Jaff describing when he heard the pipe break. Nor does the record explain what Sergeant Fekoya
observed between the time he arrived at Leysath's cell and the point in which he peered through
the feed tray and found him unresponsive.
Sergeant Fekoya responded to Leysath's cell immediately upon hearing the pipe break.
Sergeant Fekoya did not initially enter the cell, but he did not simply ignore the threat: he
informed his supervisors and waited for further guidance. See ECF No. 30-17. While the details
missing from the record could be probative in determining whether Sergeant Fekoya's ten
minute delay in retrieving Leysath was a reasonable response to the emergency, as the record
stands, there is not a genuine issue of material fact as to deliberate indifference. As such, the

15

Court finds that the Correctional Officers were not deliberately indifferent to Leysath's mental
condition in violation of the Eighth Amendment.7
IV. CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss, or in the Alternative, Motion
for Summary Judgment, ECF No. 30, shall be granted. A separate Orde follows.

Dated: March 6 ,2018
GEORGE J. HAZEL
United States District Judge

7 Because the Court will grant summary judgment in favor of the Defendants on Counts VI and VII, the Court need
not determine whether the Correctional Officers are shielded from liability on the basis of qualified immunity. See
Brockington v. Boykins, 637 F.3d 503 (4th Cir. 2011) (public official will receive immunity from § 1983 claim
unless 1) the allegations, if true, substantiate a violation of a federal statutory or constitutional right and 2) the right
violated was clearly established such that a reasonable person would have known his acts or omissions violated that
right).

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