Pevie v. Lyon
Filing
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MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 1/3/2019. (c/m 1/4/18 sp2, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
TERRANCE PEVIE, Inmate Identification
Number 404-424,
Plaintiff,
v.
Civil Action No. TDC-17-1796
KEITH LYONS, Warden, JCI,
SCOTT D. SNYDER, Maintenance Manager,
ALLEN GANG, ChiefofSecurity,
individually and in their official capacities, 1
Defendants.
MEMORANDUM OPINION
Terrance Pevie, an inmate now confined at Eastern Correctional Institution ("ECI") in
Westover, Maryland, has filed a civil action against Jessup Correctional Institution ("JCI")
personnel Warden Keith Lyons ("the Warden"); Scott D. Snyder, Maintenance Manager; and
Allen Gang, Chief of Security, for allegedly failing to repair exposed electrical wires that caused
serious injury to Pevie while he was incarcerated at JCI. Pevie claims that Defendants thus violated
his constitutional rights under the Eighth and Fourteenth Amendments to the United States
Constitution and seeks declaratory relief and monetary damages against each Defendant in his
individual and official capacity. Defendants Snyder and Gang have yet to be properly served.
Presently pending before the Court is the Warden's
Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment. In response, Pevie filed a Motion to Dismiss or, in
1 The Clerk shall amend the docket to include additional Defendants Scott D. Snyder and Allen
Gang, to reflect the proper spelling of Defendant Lyons' name, and to reflect that all Defendants
are sued in their individual and official capacities.
the Alternative, Motion for Summary Judgment, which the Court construes as a memorandum in
opposition to the Warden's Motion. Upon review of the submitted materials, the Court finds that
no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Warden's
Motion is GRANTED, and the claims against the unserved Defendants, Snyder and Gang, are
DISMISSED WITHOUT PREJUDICE.
BACKGROUND
On the morning of November 14,2015, Pevie was participating in recreation in a dayroom
in the B-Building of JCI when he backed into an uncovered electrical outlet with exposed wires
and was electrocuted.
An officer found Pevie on the floor in an unresponsive state. Pevie was
taken to the prison infirmary by stretcher, received medical treatment for leg blisters and minor
bums caused by the electrical shock, and was observed for several hours prior to discharge back
to his cell. In an administrative remedy procedure grievance ("ARP"), Pevie claimed additional
injuries, including second-degree bums to his lower left leg and injuries to his head and neck
caused by falling while unconscious.
Medical records do not corroborate that he suffered these
additional injuries.
According to Pevie, in the months prior to Pevie's injury, fellow inmate Eric W. Fuller had
noticed the exposed wiring and brought the issue to "several officers' attention," but they failed to
report this "fire/safety hazard to maintenance to be fixed." CompI. 3, ECF NO.1.
Fuller provided
an unsworn statement that was attached to Pevie's ARP that confirmed that he had reported the
exposed wiring to several officers.
Pevie's ARP was denied at the institutional and commissioner level before it was reviewed
by the Inmate Grievance Office ("IGO"). On January 3, 2017, Administrative Law Judge Michelle
W. Cole ("ALJ") concluded that the Division of Correction ("DOC") "was negligent when it failed
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to repair the exposed electrical outlet in the recreation room" and awarded Pevie $1,100 in
compensation for his pain and suffering. ALJ Op. at 9-10, ECF No. 1-3. The ALI's proposed
findings and award were affirmed by Stephen T. Moyer, Secretary of the Department of Public
Safety and Correctional Services, on February 2,2017.
In the present Complaint, Pevie asserts that the "unsafe conditions" and "negligence of
staff and maintenance" arising from the failure to repair the exposed wiring constituted cruel and
unusual punishment, in violation of the Eighth Amendment, and a violation of his right to due
process of law under the Fourteenth Amendment.
allegations against the Warden, Snyder, or Gang.
In the Complaint, Pevie makes no specific
In his Opposition, however, Pevie more
specifically alleges that Defendants "had actual knowledge of the dangerous conditions" and "the
knowledge was gained in sufficient time to give the defendants a[n] opportunity to remove or
warn" him of the dangerous condition.
Opp'n at 1, ECF No. 25.
He further asserts that a
"supervisor may also be sued for ignoring or failing to react to a widespread health or safety
problem." Id.
He also claims for the first time that "[e]very Wednesday both defendants (Lyon
and Gang) plus their whole administration team visit the segregation building along with mental
health doctors to see if any inmates have problems or concerns while on lock up" and that "2 or 3
weeks prior to me getting hurt defendants (Lyon and Gang) stood in front of the broken outlet
socket along with the rest of his administration team. Lyon could be heard asking officers who
were with him 'why wasn't the socket fixed and to fix it immediately. '" Mem. Opp'n at 3, ECF
No. 25-2.
In a declaration submitted with the Motion, the Warden asserts that he expects JCI staff to
comply with directives and policies relating to inmate housing and facility conditions. He further
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states that when responding to an ARP, he relies on the review and investigation by JCI staff in
determining whether to approve a proposed response to the ARP.
DISCUSSION
In his Motion, the Warden seeks dismissal of the Complaint or summary judgment in his
favor on several grounds, including that: (I) the Warden is not personally liable for Pevie's alleged
injuries; (2) Pevie fails to state an Eighth Amendment or due process claim; and (3) the Warden is
entitled to qualified immunity.
I.
Legal Standards
The Warden has filed his Motion as a Motion to Dismiss, or, in the Alternative, for
Summary Judgment.
Typically, when deciding a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court considers only the complaint and any attached documents "integral
to the complaint."
Cir. 2007).
Sec'y of State for Defense v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th
To the extent that grounds for dismissal are based solely on the contents of the
Complaint, the Court may dismiss under Rule 12(b)( 6) if the complaint does not allege enough
facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is
plausible when the facts pleaded allow "the Court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. Although courts should construe pleadings of
self-represented litigants liberally, Erickson v. Pardus, 551 U.S. 89,94 (2007), legal conclusions
or conclusory statements do not suffice, Iqbal, 556 U.S. at 678. The Court must examine the
complaint as a whole, consider the factual allegations in the complaint as true, and construe the
factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266,
268 (1994); Lambeth v. Ed. of Comm 'rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).
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Rule 12(d) requires courts to treat a Rule 12(b)( 6) motion as a motion for summary
judgment where matters outside the pleadings are considered and not excluded.
Fed. R. Civ. P.
12(d). Before converting a motion to dismiss to one for summary judgment, courts must give the
nonmoving party "a reasonable opportunity to present all the material that is pertinent to the
motion." Id. "Reasonable opportunity" has two requirements: (1) the nonmoving party must have
some indication that the court is treating the Rule 12(b)(6) motion as a motion for summary
judgment, and (2) the nonmoving party "must be afforded a reasonable opportunity for discovery"
to obtain information essential to oppose the motion. Gay v. Wall, 761 F.2d 175, 177 (4th Cir.
1985) (citation omitted). Here, the notice requirement has been satisfied by the title of the Motion.
To show that a reasonable opportunity for discovery has not been afforded, the nonmoving party
must file an affidavit or declaration under Rule 56( d) explaining why "for specified reasons, it
cannot present facts essential to justify its opposition," Fed. R. Civ. P. 56(d), or otherwise put the
district court on notice of the reasons why summary judgment is premature. See Harrods, Ltd. v.
Sixty Internet Domain Names, 302F.3d 214, 244-45 (4th Cir. 2002). Here, Pevie has not filed a
Rule 56( d) affidavit or otherwise requested discovery in this matter and has instead submitted an
Opposition to the Motion in which he seeks summary judgment on his own behalf. Under these
circumstances, the Court will co~strue the Warden's Motion as a Motion for Summary Judgment.
Under Federal Rule of Civil Procedure 56, the Court grants summary judgment if the
moving party demonstrates that there is no genuine issue as to any material fact, and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the light
most favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts supported in
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the record, not simply assertions in the pleadings.
Bouchat v. Bait. Ravens Football Club, Inc.,
346 F.3d 514,522 (4th Cir. 2003). A fact is "material" ifit "might affect the outcome of the suit
under t~e governing law." Anderson, 477 U.S. at 248. A dispute of material fact is only "genuine"
if sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict
for that party. Id. at 248-49.
II.
Eleventh Amendment Immunity
As a preliminary matter, the Court will dismiss the damages claim against the Warden in
his official capacity.
The Eleventh Amendment to the United States Constitution provides that
"[t]he Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one ofthe United States by Citizens of another State, or
by Citizens or subjects of any Foreign State." U.S. Const. Amend XI. In effect, the Eleventh
Amendment bars suits against a state in federal court unless the state has waived its sovereign
immunity or Congress has abrogated its immunity. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89,99-101 (1984) ("It is clear, of course, that in the absence of consent a
suit in which the State or one of its agencies or departments is named as the defendant is proscribed
by the Eleventh Amendment.").
Moreover, a suit against a state official in that person's official
capacity is the equivalent of a suit against the State itself. Will v. Michigan Dep't of State Police,
491 U.S. 58, 71 (1989) (internal citation omitted).
Here, Defendants are State employees. See Md. Code Ann., State Gov't ~ 12-101(a) (2015)
(defining "state personnel"). To the extent, therefore, that Pevie is seeking damages against the
Warden in his official capacity, he has asserted a claim against the State of Maryland. Congress
did not abrogate the states' sovereign immunity when it enacted ~ 1983. Will, 491 U.S. at 66; Dyer
v. Md. State Bd. ofEduc., 187 F. Supp. 3d 599, 611 & n.16 (D. Md. 2016). Furthermore, Maryland
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has not waived its sovereign immunity for claims brought in federal court. Md. Code Ann., State
Gov't
9 12-104(a);
Dyer, 187 F. Supp. 3d at 611. Thus, Pevie's damages claim against the Warden
in his official capacity is barred by the Eleventh Amendment. See Pennhurst, 465 U.S. at 100-01.
III.
Eighth Amendment
Because Pevie is an inmate complaining of an injury occurring in a prison, his
9 1983 claim
arises under the Eighth Amendment to the United States Constitution. "The Eighth Amendment's
prohibition on 'cruel and unusual punishments' imposes certain basic duties on prison officials."
Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016). Those duties "include maintaining humane
conditions of confinement, including ...
reasonable measures to guarantee the safety of the
inmates." ld. Pevie's Eighth Amendment claim is most fairly construed as a claim that Defendants
imposed cruel and unusual punishment upon him by failing to protect him from a known safety
risk, specifically the live electrical wiring. To establish an Eighth Amendment claim based on a
failure to protect, a plaintiff must satisfy a two-part inquiry that includes both an objective and a
subjective component. See id. Pevie must show objectively "a serious deprivation" of rights "in
the form of a serious or significant physical or emotional injury." Danser v. Stansberry, 772 F.3d
340,346-47 (4th Cir. 2014). In determining whether this objective component has been satisfied,
the Court must "ass~ss whether society considers the risk that the prisoner complains of to be so
grave that it violates contemporary standards of decency to expose anyone unwillingly to such a
risk." Hellingv. McKinney, 509 U.S. 25, 36 (1993).
Pevie must also establish subjectively that the prison officials involved had "a sufficiently
culpable state of mind" amounting to "deliberate indifference to inmate health or safety." Farmer
v. Brennan, 511 U.S. 825, 834 (1994).
A prison official must have actual knowledge of an
excessive risk to the prisoner's safety but nevertheless disregard it. Id. at 837. Such knowledge
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can be established by a showing that the official was aware of facts from which an inference could
be drawn that a substantial risk of serious harm existed, and that the official actually drew that
inference. !d. at 837. A "factfinder may conclude that a prison official knew of a substantial risk
from the very fact that the risk was obvious." Raynor, 817 F.3d at 128.
To constitute deliberate indifference, a defendant's action or action must constitute more
than ordinary lack of care for Pevie's safety. See Whitley v. Albers, 475 U.S. 312, 319 (1986).
Mere negligence does not transform the conduct of prison personnel into a constitutional claim
under 42 U.S.C.
S
1983 solely because the action was committed under color of state law. See
Atkins v. Sheriff's Jail Avoyelles Parish, 278 F. App'x 438, 439 (2008); Mendoza v. Lynaugh, 989
F.2d 191,195 (5th Cir. 1993).
Here, although there is no dispute that the live electrical wiring constituted a serious risk
to inmate health and safety, Pevie fails to provide sufficient facts to establish deliberate
indifference by the Warden. First, in a
S
1983 claim, a defendant cannot be found liable under a
theory of vicarious liability or respondeat superior. See Love-Lane v. Martin, 355 F.3d 766, 782
(4th Cir. 2004) (holding that there is no respondeat superior liability under
S 1983).
Thus, Lyons's
status as the Warden of lCI and the overall supervisor of all lCI personnel does not subject him to
liability.
Second, under
S
1983, liability imputed to supervisory officials must be supported by
evidence that: (1) 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
individuals 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
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inaction and the particular
constitutional injury suffered by the plaintiff.
1994) (citations omitted).
See Shaw v. Stroud, 13 F. 3d 791, 799 (4th Cir.
Here, Pevie has failed to submit facts that would establish that the
Warden had actual knowledge of the dangerous condition. Neither the Complaint, the ARP, nor
the ALl decision describes any personal involvement by the Warden that would suggest that he
was aware of the live electrical wiring before Pevie's injury. In his Opposition, for the first time,
Pevie asserts that the Warden walked through the area during weekly inspections and claims that
the Warden was overheard asking officers who were with him "why wasn't the socket fixed" and
ordering them "to fix it immediately."
Mem. Opp'n at 3. This unattributed assertion, offered in a
brief rather than an affidavit or declaration, and not referenced in any exhibit, is not properly
considered on a motion for summary judgment. See Bouchat, 346 F.3d at 522.
Even if the claim could be construed as a sworn statement by Pevie, he has not attested to
personal knowledge of the conversation and has not identified the source of the information. The
written statement of inmate Fuller, which states only that Fuller reported the broken socket to
correctional officers, does not describe a similar conversation and does not claim that the Warden
was personally informed of, or had observed, the live electrical wiring.
Matters asserted in an
affidavit or declaration that, if offered as evidence at trial, are inadmissible as hearsay or otherwise
improper may not be considered by the Court when determining what facts are undisputed.
See
Sakaria v. Trans World Airlines, 8 F.3d 164, 171 (4th Cir. 1993) (finding that the district court
properly did not consider inadmissible hearsay in an affidavit filed with a motion for summary
judgment). Thus, the Court cannot fairly consider Pevie's assertion regarding the Warden's actual
knowledge.
Finally, even if the Court could consider Pevie's claim that the Warden saw the live
electrical wiring, in Pevie's account, the Warden immediately ordered DOC staff to fix the hazard.
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Although it is unclear which correctional officer would have had responsibility for fixing the
electrical socket, the Warden's alleged order would refute, rather than support, the claim that he
acted with deliberate indifference to a known hazard. As stated in his declaration, the Warden
generally expects lCI staff to comply with directives and policies relating to inmate housing and
facility conditions, and a direct order to fix a hazard exhibits a lack of indifference to the safety
risk and a reasonable response for the Warden to take upon learning of a known safety hazard. See
Farmer, 511 U.S. at 844 (holding that prison officials who actually know of a substantial risk to
prisoner health or safety may be found free from liability if they responded reasonably to the risk,
even if the harm ultimately was not averted). Thus, Pevie's unsworn and unattributed assertion
about the Warden's knowledge of the hazard, even if properly considered, does not demonstrate
the "sufficiently culpable state of mind" necessary to establish an Eighth Amendment violation for
failure to protect an inmate from a known safety risk. See Farmer, 511 U.S. at 834. Because Pevie
has not offered sufficient facts upon which a reasonable jury could find in his favor, the Court will
grant the Warden's Motion as to the Eighth Amendment claim.
IV.
Due Process
Pevie does not explain how his due process rights were violated. To the extent that prison
personnel somehow failed to follow their own policies or procedures with regard to investigating
his grievance, such a failure, standing alone, does not amount to a constitutional violation.
See
Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (per curiam) ("[A] prison official's failure
to follow the prison's own policies, procedures or regulations does not constitute a violation of
due process, if constitutional minima are nevertheless met." (internal citation omitted)); Hovater
v. Robinson, 1 F.3d 1063, 1068 n. 4 (lOth Cir. 1993) ("[A] failure to adhere to administrative
regulations does not equate to a constitutional violation."). Here, the ALl decision, attached to the
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Complaint, establishes that the prison grievance system actually resulted in a finding of negligence
by the DOC and an award of damages to Pevie. Based on this record, Pevie has failed to establish
a due process violation.
v.
Unserved Defendants
Defendants Snyder and Gang have not been served with the Complaint. Because Pevie is
an inmate who is proceeding informa pauperis, the Court will review the allegations against these
unserved Defendants to assess whether Pevie has stated a plausible claim for relief against them.
See 28 U.S.C.
SS
1915(e)(2), 1915A(b) (2012). For the reasons discussed above relating to the
Warden, the claims against Snyder and Gang in their official capacity are barred by Eleventh
Amendment immunity and therefore must be dismissed.
As for individual capacity claims, although Pevie has identified Snyder as a maintenance
manager and Gang as the Chief of Security at lCI, he has provided no specific allegations against
them in the Complaint or in the exhibits attached to the Complaint.
Liability under
S
1983
generally attaches only upon personal participation by a defendant in the constitutional violation.
Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).
Tellingly, neither Snyder nor Gang is
referenced in the ARP describing the incident or in the ALl decision awarding Pevie damages for
negligence by the DOC, both attached the Complaint. Pevie likewise has failed to allege facts to
support a claim of supervisory liability under the relevant standard. See supra part III. Because
Pevie has failed to state a plausible claim for relief against Snyder, the claim against him will be
dismissed without prejudice. See 28 U.S.C.
S
1915A(b).
In his Opposition, Pevie asserts for the first time that Gang regularly visited the relevant
housing unit and that two or three weeks before the incident, Gang was present in front of the
electrical socket when the Warden directed officers to fix the socket immediately. Pevie does not
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state that he observed this visit and conversation, and it is not referenced in his ARP, the statement
by inmate Fisher, or the ALJ decision, which included no findings that any individual was
personally responsible for the DOC's negligent failure to repair the electrical socket. Where this
allegation was not made in the Complaint, and is not based on Pevie's personal knowledge, it
cannot be considered for purposes of assessing whether Pevie has stated a claim against Gang. See
supra Part III. Even if it could be considered, Pevie offers no facts to support the conclusion that
Gang, as Chief of Security, had any responsibility for repairing electrical outlets at JCI. Under
these circumstances, the Court concludes that Pevie has not stated a plausible claim for relief
against Gang. The claims against Gang will therefore be dismissed without prejudice.
CONCLUSION
For the foregoing reasons, the Warden's Motion to Dismiss or, in the Alternative, for
Summary Judgment will be granted, and the claims against Defendants Snyder and Gang will be
dismissed without prejudice. A separate Order shall issue.
Date: January 3, 2019
THEODORE D. CHU
United States District Ju
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