Pevie v. Lyon
Filing
48
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 8/18/2020. (jj2s, Deputy Clerk)
Case 8:17-cv-01796-TDC Document 48 Filed 08/18/20 Page 1 of 9
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
TERRANCE PEVIE,
Plaintiff,
v.
Civil Action No.: TDC-17-1796
KEITH LYONS,
SCOTT D. SNYDER and
ALLEN GANG,
Defendants.
MEMORANDUM OPINION
Plaintiff Terrance Pevie, a prisoner incarcerated at the Dorsey Run Correctional Facility in
Jessup, Maryland, has filed a self-represented Amended Complaint alleging a claim under 42
U.S.C. § 1983 that Defendants violated his rights under the Eighth Amendment to the United States
Constitution by failing to prevent an electric shock that he sustained on November 14, 2015 from
an open electrical outlet at the Jessup Correctional Institution (“JCI”) in Jessup, Maryland. He
also asserts a claim of negligence arising from the same incident. Pending before the Court is
Defendants’ Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. Having
reviewed the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local
R. 105.6. For the reasons set forth below, Defendants’ Motion will be GRANTED IN PART and
DENIED IN PART.
BACKGROUND
Pevie filed his original Complaint against JCI Warden Keith Lyons, JCI Maintenance
Manager Scott D. Snyder, and JCI Chief of Security Allen Gang, in their individual and official
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capacities, for violating his Eighth Amendment rights by failing to protect him from an uncovered
electrical outlet with exposed wires in a housing unit that caused injuries to his neck, head, and
leg. On January 3, 2019, the Court granted Warden Lyons’s Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment (“the First Motion”) and dismissed without prejudice
the claims against Defendants Snyder and Gang (“Defendants”), who had not yet been served. The
Court’s memorandum opinion on that motion is incorporated by reference into this opinion, and
the Court will not restate the facts and legal analysis contained in that opinion. Pevie v. Lyons,
No. TDC-17-1796, 2019 WL 110955 (D. Md. Jan. 4, 2019). After Pevie appealed the Court’s
ruling, on May 21, 2019 the United States Court of Appeals for the Fourth Circuit dismissed the
appeal because there was no final judgment as to Snyder and Gang and remanded with instructions
to permit Pevie to file an amended complaint. Pevie v. Lyons, 770 F. App’x 152, 153 (4th Cir.
2019). On August 13, 2019, the Court granted Pevie leave to file an amended complaint against
Snyder and Gang only.
On September 19, 2019, Pevie filed a “Response to Order” which the Court construes as
his Amended Complaint. ECF No. 41. Because Pevie is self-represented, the Court will liberally
construe the operative Amended Complaint to consist of both the Response to Order and the
relevant allegations in the original Complaint. Where both the Fourth Circuit and this Court have
stated that the case against Warden Lyons has been resolved in his favor, the Court will not
consider or address the allegations against Warden Lyons.
In the Amended Complaint, Pevie asserts that on November 14, 2015 at approximately
10:30 a.m., he was out of his cell for recreation inside “the bottom dayroom on C-tier of Bbuilding” at JCI when he accidentally backed into an uncovered electrical socket and was
electrocuted. Compl. ¶ 8, ECF No. 1. The socket had exposed, live electrical wires hanging out
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of it. Pevie was rendered unconscious, fell and injured his head and neck, and required emergency
medical treatment for leg blisters and burns. Several months before this incident, Eric Fuller,
another inmate, had seen the exposed electrical wiring spark and flash, and he reported the hazard
to multiple correctional officers, but no action was taken to address the issue. On January 3, 2017,
Administrative Law Judge Michelle W. Cole (“the ALJ”) concluded that the Maryland Division
of Correction “was negligent when it failed 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 ALJ’s proposed findings and award were affirmed by Stephen T. Moyer,
Secretary of the Maryland Department of Public Safety and Correctional Services, on February 2,
2017.
Pevie further asserts that “the Warden along with Allen Gang had personal knowledge
when they witnessed the damaged outlet socket but failed to have it repaired before I got hurt.”
Am. Compl. at 2, ECF No. 41. He also alleges that “[w]hat links the Warden, Chief of Security,
and Maintenance Manager to this violation is that they had personal knowledge of the exposed
wires before I got hurt, but neglected to have it fixed, or off limits to avoid injury.” Id. at 3.
Finally, Pevie asserts that all three officials “have authority to have the electrical outlet fixed.” Id.
DISCUSSION
In their Motion, Defendants argue that (1) the Amended Complaint does not allege
sufficient facts to support a plausible claim for relief; (2) upon consideration of summary
judgment, there is no genuine issue of material fact that would prevent entry of judgment in their
favor; (3) they are entitled to qualified immunity; and (4) if the federal constitutional claim fails
the Court should decline to exercise supplemental jurisdiction over the negligence claim. Because
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Defendants merely recite the standard for qualified immunity but provide no substantive analysis
on that argument, the Court finds that they have not shown that dismissal on that basis is warranted.
Although Defendants also assert Eleventh Amendment immunity from claims against them
in their official capacity and argue that they cannot be held vicariously liable for constitutional
claims under § 1983, the Court addressed those issues as to the Warden in resolving the First
Motion and need not address them again. For the same reasons stated in the memorandum opinion
on the First Motion, any claims against Defendants in their official capacities will be dismissed
based on Eleventh Amendment immunity, and vicarious liability will not provide a basis to support
the Eighth Amendment claims against Defendants. Pevie, 2019 WL 110955 at *3-4. The Court
will address the remaining arguments below.
I.
Legal Standard
Defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6) or summary
judgment under Rule 56. To defeat a motion to dismiss under Rule 12(b)(6), the complaint must
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. Legal conclusions or conclusory statements
do not suffice. Id. 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. Bd. of Comm’rs of
Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).
Defendants have attached evidence outside the pleadings for the Court’s consideration.
The Court may consider such exhibits only if it converts the Motion into one for summary
judgment. See Fed. R. Civ. P. 12(d). Before converting a motion to dismiss into one for summary
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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 notice 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).
Here, the notice requirement has been satisfied by the title of Defendants’ 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), or an equivalent filing, explaining why “for
specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d);
see Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 245 (4th Cir. 2002). Pevie has
submitted a document entitled “Affidavit of Facts Writ of Discovery,” ECF No. 46-3, which the
Court construes as a Rule 56(d) affidavit, in which he seeks discovery of prior statements by parties
and witnesses, records relating to the incident in question, medical reports relating to his injuries,
and other materials. Where Pevie effectively seeks discovery in advance of a ruling on summary
judgment, and his case turns on a factual dispute about the knowledge and actions of Defendants
relating to the failure to repair the electrical outlet, the Court finds that he has adequately
demonstrated that summary judgment should not be granted before discovery. The Court will
therefore construe the Motion as a Motion to Dismiss only.
II.
Eighth Amendment
Because Pevie is an inmate complaining of an injury occurring in a prison, his § 1983 claim
arises under the Eighth Amendment to the Constitution. “The Eighth Amendment’s prohibition
on ‘cruel and unusual punishments’ imposes certain basic duties on prison officials, including
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taking “reasonable measures to guarantee the safety of the inmates.” Raynor v. Pugh, 817 F.3d
123, 127 (4th Cir. 2016). Pevie’s Eighth Amendment claim is most fairly construed as a claim
that Defendants failed 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 inmate health and
safety, an inmate must show an objectively “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), or “a substantial risk of such serious harm resulting from the prisoner’s unwilling exposure
to the challenged conditions,” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (quoting Strickler
v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993)). In determining whether this objective component
has been satisfied, the Court must “assess 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.” Helling v. McKinney, 509 U.S. 25, 36 (1993).
A plaintiff must also establish that the prison officials involved subjectively 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. 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. “[T]he test is whether the guards know the
plaintiff inmate faces a serious danger to his safety and they could avert the danger easily yet they
fail to do so.” Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 723 (4th Cir. 2010) (quoting Case v.
Ahitow, 301 F.3d 605, 607 (7th Cir. 2002)).
Here, Pevie has plainly alleged sufficiently that the live electrical wiring constituted an
objectively serious risk to inmate health and safety and that he suffered a significant physical injury
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from it. He has also alleged, through the statement by Fuller referenced in the Complaint, that
prison officials were warned of the presence of the live electrical outlet several months before the
incident but took no action. Because vicarious liability is unavailable for § 1983 claims, LoveLane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004), the question is whether Pevie has alleged
sufficient facts to support a finding that Snyder and Gang were personally aware of the danger but
failed to act. In the Amended Complaint, Pevie now specifically alleges that Gang “had personal
knowledge” of the hazardous electrical outlet because he “witnessed the damaged outlet socket
but failed to have it repaired before I got hurt.” Am. Compl. at 2. Although he does not identify
Snyder by name, he also alleges that “[w]hat links the Warden, Chief of Security, and Maintenance
Manager to this violation is that they had personal knowledge of the exposed wires before I got
hurt, but neglected to have it fixed, or off limits to avoid injury,” even though they had the
“authority to have the electrical outlet fixed.” Id. at 3. It is undisputed that Gang was the Chief of
Security and Snyder was the Maintenance Manager.
Viewing the allegations in the light most favorable to Pevie, as the Court must at this stage,
Pevie has plausibly alleged a claim of deliberate indifference to inmate health and safety in
violation of the Eighth Amendment. Although Pevie does not provide significant detail about how
Defendants had personal knowledge other than a statement that Gang “witnessed” the hazard, id.
at 2, this claim is plausible in light of Fuller’s statement that he warned multiple correctional
officers about the danger several months before Pevie was injured, and the fact that the ALJ
actually found negligence. Where the danger posed by the electrical wiring could reasonably be
construed as “obvious,” the failure to have it repaired, or even to block it off or post warning signs,
could plausibly constitute deliberate indifference. Raynor, 817 F.3d at 128. Such a finding could
be based either on direct responsibility to take action or a failure, once aware of the hazard, to
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ensure that subordinates actually addressed the danger. See Shaw v. Stroud, 13 F. 3d 791, 799 (4th
Cir. 1994) (permitting a finding of supervisory liability on a § 1983 claim if the supervisor had
actual or constructive knowledge that a subordinate was engaged in conduct that posed a pervasive
and unreasonable risk of constitutional injury to individuals like the plaintiff, but the supervisor’s
response was so inadequate as to show deliberate indifference, and there was an affirmative causal
link between the supervisor’s inaction and the plaintiff’s injury).
To the extent that Defendants argue that Pevie has not offered more details about the
specific circumstances leading Defendants to be aware of the danger and the specific
responsibilities Defendants may have had for addressing the hazard, those and other specific facts
are unlikely to be available to Pevie at this stage and, in fact, are among the matters on which he
seeks discovery. Accordingly, the Court finds that the Amended Complaint sufficiently states a
cause of action and will deny the Motion.
The Court notes that even if, in the alternative, it had considered the submitted evidence as
part of a motion for summary judgment, the Motion would still be denied. Although the record
includes declarations from both Defendants denying knowledge of the electrical hazard, Pevie also
submitted a declaration, under penalty of perjury, stating that “both defendants had first hand
knowledge of the damaged outlet socket” because “2 or 3 weeks before 11-14-15 I witnessed both
defendants along with their whole administrative team enter on C-tier of B-building” and “I heard
defendant Lyons giving orders to fix the damaged socket while defendant Gang stood by
listening.” Pevie Decl. at 1, ECF No. 46-2. He further stated that “[b]oth defendants have to make
their weekly tier rounds, but never followed up with making sure the damaged socket got repaired
until after I got hurt.” Id. at 2. At a minimum, therefore, there is a genuine issue of material fact
on the present record on whether Defendants had actual knowledge of the electrical hazard.
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Finally, where Defendants’ argument for dismissal of the negligence claim depends
entirely on dismissal of the federal constitutional claims, the Court will the deny the Motion as to
that claim.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss or, in the Alternative, Motion
for Summary Judgment, will be GRANTED IN PART and DENIED IN PART. The Motion will
be granted as to any claims against Defendants Snyder and Gang in their official capacities, which
will be dismissed. The Motion will be otherwise denied. Based on prior rulings of the Court,
Warden Keith Lyons shall be dismissed as a Defendant. A separate Order shall issue.
Date: August 18, 2020
/s/ Theodore D. Chuang
THEODORE D. CHUANG
United States District Judge
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