Winegardener v. Greene et al

Filing 20

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 2/26/2019. (cm 02/26/2019 - jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

VICTOR WINEGARDNER, I #311177,
#1196002, a/k/a Victor Winegardener,

*
*

Plaintiff

*

v

KATHLEEN GREEN, WARDEN, 2
DAVID ALDERS, Maintenance Supervisor,
MIKE HUNTEMAN, CMO,
ROBERT MARSHALL, CMO,
Defendants

Civil Action No. PWG-17-3003

*
*
*
*

***

MEMORANDUM OPINION
Self-represented

Plaintiff Victor Winegardner is incarcerated at Eastern Correctional

Institution (ECI) in Westover, Maryland. On October 12,2017, he filed an unverified complaint
pursuant to 42 U.S.C.

S

1983, alleging that Defendants Warden Kathleen Green, Officer David

Alders, Officer Mike Hunteman, and Officer Robert Marshall acted with gross negligence and
deliberate indifference to his safety. CompI. 3, ECF No. 1. Defendants have filed a Motion to
Dismiss or, in the alternative, Motion for Summary Judgment, ECF No. 12, along with a

I

Plaintiff s filings, which other inmates typed and handwrote for him, see Mot. for Ext. of Time

& to Appoint Counsel 1-2, ECF No. 16, use two different spellings of his last name. It is spelled

"Winegardener" in the Complaint, his Motion to Proceed in Forma Pauperis, and one Motion for
an Extension of Time. ECF Nos. 1,2, 14. In other submissions, it is spelled "Winegardner." See,
e.g., ECF No. 16 (Motion for an Extension of Time and to Appoint Counsel); ECF No. 18 (Motion
for an Extension of Time). Plaintiff s prison files consistently spell his name as "Winegardner,"
see, e.g., Intelligence and Investigative Division (IID) Rep. 1, 14, ECF No. 12-3, as does the
Maryland
Judiciary
case
search.
http://casesearch.courts.state.md.us/casesearchl
inquirySearch.iis. I shall spell Plaintiffs last name "Winegardner," and the Clerk shall to amend
the docket accordingly.
The Clerk shall amend the docket to reflect the spelling of Warden Kathleen Green's name as
shown in her dispositive motion. ECF No. 12.

2

Memorandum in Support, ECF No. 12-1, and supporting verified exhibits, ECF Nos. 12-2, 12-3,
and declarations, ECF Nos. 12-4 - 12-7. Winegardner was provided an opportunity to file a
response and subsequently granted three extensions oftime to do so. ECF Nos. 13, 15, 17, 19. The
latest deadline has passed without a response. See Docket. I find a hearing unnecessary to resolve
the issues. See Loc. R. 105.6 (D. Md. 2016). Defendants' Motion will be treated as a Motion for
Summary Judgment and granted for reasons to follow.
BACKGROUND3
Winegardner worked in the maintenance shop at ECI but had "zero training or experience"
in heating, ventilation, and air conditioning ("HVAC"). CompI. 3. On October 15, 2014,4 he was
"told to grab a grease gun" and help Officer Hunteman, who works with HV AC. They went to a
mechanical room in an attic area with which Winegardner was not familiar. Id.; Incident Rep. 2,
ECF No. 12-2.

According to Winegardner,

Hunteman, who had forgotten his flashlight,

"comp1ain[ed] about the bum[t] out lights, and poor visibility" in the mechanical room. CompI. 3.
Hunteman instructed Winegardner "to grease the motor attached to a big air handler" and asked
him to "check and see if the motor came to a stop." Id. Winegardner states:
I could not hear if the motor was moving or not. Due to the poor lighting, all I could
see was the sillouette [sic] of a belt that appear to be stopped. I attempted to tap the
belt, and my hand was pulled into the motor.
Id.

Winegardner gave the same description of the incident in his October 16, 2014 Inmate

On a motion for summary judgment, I consider the facts in the light most favorable to
Winegardner as the non-moving party, drawing all justifiable inferences in his favor. Ricci v.
DeStefano, 557 U.S. 557, 585-86 (2009). The background includes the undisputed facts, as well
as Winegardner's unsupported allegations that Defendants do not dispute.
3

4 The Complaint states the incident occurred on October 7, 2014. This appears to be a
typographical error since Winegardner's inmate statement, as well as the prison reports in the
record indicate the incident took place on October 15, 2014. See, e.g., Incident Rep. 18
(Winegardner statement); IID Rep. 2.
2

Statement. Inmate Statement, Incident Rep. 18.
When his hand caught in the motor, portions of his index and middle fingers were severed.
Compl. 3; Incident Rep. 19-20; Intelligence and Investigative Division ("IID") Rep. 1,2, 11, ECF
No. 12-3. Winegardner claims that he also injured his right thumb, neck, back, and hip as a result
of this incident. Compl. 3.
Hunteman's account of the incident differs in one important detail. Specifically, Hunteman
states that after Winegardner reported that he could not hear if the motor was moving, he told
Winegardner "that's fine we'll take the cover off. Don't put your hands in there," but "seconds
later Victor [Winegardner] started screaming and had stuck his fingers in the pully [sic]." Notice
of Incident, Incident Rep. 11; Hunteman Decl. ,-r 3, ECF No. 12-7 (stating that he adopts the
statements attributed to him in the Serious Incident Report and IID Report). Additionally,
Hunteman stated that he "had recently killed the power to both air handlers that [the maintenance
workers] were serving." Notice ofIncident, Incident Rep. 11.
Inmates Martin Czosnowski, Blain Blackburn, and William Davis were working with
Hunteman and Winegardner in the mechanical room at the time of the incident. Incident Rep. 11,
15,16,17.

Czosnowski's statement of the incident corroborates Hunteman's account.5 He states

that Hunteman told Winegardner "not to put his hand into belt's area until it was completely stop
[sic] so we could take off cover. But he had already tried to check belt's [sic] before it was stop
[sic]." Incident Rep. 17.
Detective Sergeant William Sage interviewed Winegardner at the ECI infirmary on
October 16,2014 as part of the incident investigation.

5 Davis and Blackburn recovered Winegardner's
severed finger parts from the machine. They
heard Winegardner scream but do not indicate whether they heard the exchange between
Winegardner and Hunteman. Incident Rep. 15, 16.

3

Inmate Winegardner stated he was in the process of greasing the motor of the air
handler when CMO Hunteman asked him if the motor had stopped. Inmate
Winegardner advised [Sage] that he had put his ear against the air handler to
determine if the motor had stopped but was not able to ascertain if it had due to
the amount of noise from the actual unit. Therefore, he stated he then reached
underneath, near the cover, to touch the bottom of the belts. When asked why
he would do this, Inmate Gardner [sic] stated he has done this in the past with
belts and pulleys where he would reach up and under and touch the belt from
underneath to determine if the belt was still moving. In addition, he stated that
it was dark in his location and that he could not observe the light as he did not
have a flashlight. According to Inmate Winegardner, the belt would normally
just brush over his fingers if it was still running. Inmate Winegardner believes
that there were two belts underneath the cover and when he touched one belt, the
other had grabbed his right fingers and forced it into the unit causing them to be
severed at the index and middle fingers of his right hand at the first joint. Inmate
Winegardner stated that he was unable to see because of the lack of light and
that he should not have touched the belt without having a flashlight. He further
stated that the motor had been shut off earlier but he assumed that it had stopped
completely. Inmate Winegardner stated, "It was my fault. Nobody did it to me.
I can't blame Michael (CMO Hunteman) for it. He wasn't pressing me. I'm
relentless sometimes. If somebody says do it, I do it. Maybe I'm being too gung
ho."
IID Rep. 3. Sage's completed IID report recommended no further action be taken. Id. at 4.
Winegardner alleges that two years before, Officer K. Glasco was injured in a similar
accident; Glasco was a supervisor at the time of Winegardner's accident. Compl. 3. He does not
allege, however, that any Defendant was aware of that incident, and he does not name Glasco as a
defendant.
Winegardner is suing Defendants in their official and individual capacities. Id.

He seeks

to hold them liable for his injuries because they "were aware of the risk/threat of injury, and did
nothing to remedy the situation." Id. He claims that "proper safety procedures were not followed
such as lock out-tag out" to ensure the machine was properly shut off and not able to start up before
completion of the work. Id.

Winegardner asserts that he "was not trained, and therefore never

should have been working with this machine/equipment."

4

Id.

As relief, he seeks future medical

expenses,6 compensatory damages of$150,000, and punitive damages of $80,000. Id. at 4.
STANDARD OF REVIEW
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 amatteroflaw."

Fed. R. Civ. P. 56(a), (c)(1)(A); see Baldwin v. City of Greensboro,

714 F.3d 828,833 (4th Cir. 2013). Ifthe 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 Celotex v.
Catrett, 477 U.S. 317 (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.
If this initial burden is met, the opposing party may not rest on the mere allegations in the
complaint. Id. at 247--48. The opposing party "must come forward with specific facts showing that
there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). Where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, summary judgment is appropriate. Anderson, 477 U.S. at 248--49.
The argued existence of a factual dispute does not defeat an otherwise properly supported
motion. Id. "If the evidence is merely colorable or is not significantly probative," summary

6 Winegardner is serving a total sentence of 50 years for drug convictions.
September 6,2041. IID Rep. 4, 14.
5

His release date is

judgment is appropriate. Id. at 249-50 (citations omitted). "When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt [the moving party's] version of the facts for purposes of
ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).
DISCUSSION
Defendants argue that they are entitled to summary judgment on several grounds including
Winegardner's

failure to exhaust administrative

remedies, Eleventh Amendment

immunity,

because all but Hunteman were supervisors not directly involved in the incident, and because
Winegardner's allegations fail to support a constitutional claim.
Exhaustion of Administrative Remedies
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.

S

1997e(a). "[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

6

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).
An inmate need only exhaust "available" remedies. 42 U.S.C.

S

1997e(a). In Ross, the

Supreme Court rejected a "freewheeling approach to exhaustion as inconsistent with the PLRA."
136 S. Ct. at 1855. In particular, it rejected a "special circumstances" exception to the exhaustion
requirement. Id. at 1856-57. But, it reiterated that "[a] prisoner need not exhaust remedies if they
are not 'available.'"

Id. at 1855. The Ross Court explained that an administrative remedy is

available for purposes of the PLRA if it is '''capable of use' to obtain 'some relief for the action
complained of.'" 136 S. Ct. at 1859 (quoting Booth, 532 U.S. at 738). Thus, an inmate must
complete the prison's internal appeals process, if possible, before bringing suit. See Chase, 286 F.
Supp. 2d at 529-30.
The Ross Court outlined three circumstances when an administrative remedy is unavailable
and an inmate's duty to exhaust available remedies "does not come into play." 136 S. Ct. at 1859.
These are when (1) the remedy operates as a "simple dead end-with

officers unable or

consistently unwilling to provide any relief to aggrieved inmates"; (2) the. administrative scheme
is so "opaque" as to become "practically speaking, incapable of use"; or (3) prison administrators
"thwart

inmates

from

taking

advantage

of a grievance

process

through

machination,

misrepresentation, or intimidation." Id. at 1859-60.
Defendants argue that Winegardner has not properly presented his claims through the
administrative remedy procedure, and therefore the claims must be dismissed pursuant to the
PLRA. Winegardner concedes he did not present his claims through the administrative remedy
procedure process. CompI. 2. And, he does not assert that Defendants or other corrections officials

7

thwarted his access to the ARP process; nor does he characterize the ECI ARP process as a "simple
dead end," unduly complicated, or otherwise "unavailable" as outlined in Ross. 136 S. Ct. at 1859.
But, he explains that he was "unable to write due to injury" to his "writing hand" and because he
was "heavily medicated due to injury sustained." CompI. 2.
Defendants counter that Winegardner failed to pursue his administrative remedies once his
injury was sufficiently healed to allow him to prepare an ARP grievance.
Further, Defendants assert-and

Winegardner does not dispute-that

Defs.' Mem. 8-9.

Winegardner wrote and

signed his inmate statement about the incident on October 16, 2014, one day after it happened. Id.;
see also Incident Rep. 18.
The severity of Winegardner's injury to his right hand is clear and undisputed. Certainly,
the record also shows that Winegardner returned to ECI from the hospital on the same day of the
accident, and Winegardner appears to have written and signed an inmate statement the next day.
And, he does not explain how his medication kept him from obtaining assistance to submit a timely
ARP request. Nonetheless, given the severity of his physical injuries and the time constraints for
filing an ARP, the administrative remedy arguably was not "capable of use." See Ross, 136 S. Ct.
at 1859; Booth, 532 U.S. at 738.

Regardless whether Winegardner exhausted his remedies,

Defendants are entitled to summary judgment on the alternative grounds they identified, as
discussed below.
Official Capacity
Defendants assert they "are immune under the Eleventh Amendment from suit in federal
court for any claims brought against them in their official capacity." Defs.' Mem. 16. Even though
this "argument would appear to implicate this Court's jurisdiction," the Court first must consider
whether any Defendant in his or her official capacity is "a 'person' within the meaning of

8

S 1983."

Lawson v. Green, No. TDC-16-2946,

2017 WL 3638431, at *4 (D. Md. Aug. 23, 2017)

(parenthetical omitted) (citing Vt. Agency of Nat. Res. v. United States ex rei. Stevens, 529 U.S.
765, 779 (2000); Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998); Power v. Summers, 226 F.3d
815, 818 (7th Cir. 2000)); 28 U.S.C.

S

1915(e)(2)(B)(ii) (requiring dismissal of claim filed by

prisoner proceeding in forma pauperis if it fails to state a claim); see also Order, ECF No. 7
(granting Winegardner leave to proceed in forma pauperis).
To state a claim under
for purposes of

S

S 1983, a plaintiff

must name a defendant who qualifies as a "person"

1983. See Bixler v. Harris, No. WDQ-12-1650, 2013 WL 2422892, at *5 (D.

Md. June 3, 2013) ("Section 1983 provides a remedy against any person who, acting under color
of law, deprives another of constitutional rights." (emphasis added) (citing 42 U.S.c.

S

1983)).

"[ A] suit against a state official in his or her official capacity is not a suit against the official but
rather is a suit against the official's office. As such, it is no different from a suit against the State
itself." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). A state is not "a 'person'
within the meaning of 42 U.S.C.

S 1983." Kelly

v. Bishop, No. RDB-16-3668, 2017 WL 2506169,

at *4 (D. Md. June 9, 2017) (citing Will, 491 U.S. at 64-65 & 70-71). Therefore, a State official
in his official capacity is not subject to a

S

1983 action. See Will, 491 U.S. at 64-65 & 70-71.

Defendants were State employees during the time period at issue, and thus, Winegardner cannot
state a claim against them in their official capacities under

S

1983. See id

Accordingly, I will

dismiss all claims against them in their official capacities.
Claims against Officers Alders and Marshall
and Warden Green in their Individual Capacities
Liability is imposed under

S

1983 on "any person who shall subject, or cause to be

subjected, any person ... to the deprivation of any rights .... " 42 U.S.C.
cannot be held liable under

S

S

1983. An individual

1983 under a theory of respondeat superior. See Monell, 436 U.S. at

9

690; Love-Lane

v. Martin, 355 F.3d 766, 782 (4th Cir. 2004).

Rather, the statute 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); Vinnedge v. Gibbs, 550 F.2d 926,928 (4th Cir. 1977).

In a ~ 1983 action, liability of supervisory officials "is premised on 'a recognition that
supervisory indifference or tacit authorization of subordinates' misconduct may be a causative
factor in the constitutional injuries they inflict on those committed to their care.'" Baynard v.
Malone, 268 F.3d 228,235 (4th Cir. 2001) (quoting Slakan, 737 F.2d at 372). Supervisory liability
under ~ 1983 must be supported with evidence:
(1) that 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 citizens like the plaintiff; (2) that the supervisor's response
to that knowledge was so inadequate as to show "deliberate indifference to or tacit
authorization of the alleged offensive practices," and (3) that there was an
"affirmative causal link" between the supervisor's inaction and the particular
constitutional injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations omitted).
Winegardner does not allege that Officer Alders, Warden Green or Officer Marshall was
personally involved in this incident. He names Officer Alders and Warden Green as Defendants in
the caption of his Complaint but otherwise does not mention them. As for Marshall, Winegardner
only alleges that Marshall was his supervisor and a locksmith, and that they were sitting together
on the morning of the incident. To the extent Winegardner intends to prevail against these
Defendants based on supervisory liability, he does not make allegations to support such a claim.
Accordingly, Alders, Green and Marshall are entitled to summary judgment on the claims against
them in their individual capacities.

10

Claim against Officer Hunteman in his Individual Capacity
To proceed under 42 U.S.C.

S

1983, a plaintiff must allege a violation of a federal

constitutional right or a right secured by federal law. Baker v. McCollan, 443 U.S. 137, 140 (1979).
Claims of failure to protect and deliberate indifference are examined in light of the Eighth
Amendment, which prohibits "cruel and unusual punishments,"

such as those involving the

"unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173 (1976). "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. 20 16) (citing Farmer v. Brennan,
511 U.S. 825,832).

Those duties include taking 'reasonable measures to guarantee the safety of

the inmates.'"

Nonetheless, "a prison official cannot be found liable under the Eighth

Id.

Amendment for denying an inmate humane conditions of confinement unless the official knows
of and disregards an excessive risk to inmate health or safety." Id at 837. "[TJhe official must
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." Id; see also Rich v. Bruce, 129 F.3d 336, 33940 (4th Cir. 1997). Mere negligence is not enough. Grayson v. Peed, 195 F.3d 692,695 (4th. Cir.
1999). A defendant's "failure to alleviate a significant risk that he should have perceived, but did
not" will not support an Eighth Amendment claim. Farmer, 511 U.S. at 838. Further, a defendant's
violation of official duties will not support an Eighth Amendment claim unless the defendant
appreciated that his action created an excessive risk to the inmate's safety. Danser v. Stansberry,
772 F.3d 340,348 (4th Cir. 2014).
Eighth Amendment protections have been extended to prison work assignments. Kulkay v
Roy, 847 F.3d 637, 642 (8th 2017) (citing Farmer v. Brennan, 511 U.S. 825, 833 (1994));
Littlejohn v. Moody, 381 F. Supp. 2d 507, 513 (E.D. Va. 2005). "In the prison work assignment

11

context, prison officials are deliberately indifferent when they knowingly compel 'an inmate to
perform labor that is beyond the inmate's strength, dangerous to his or her life or health, or unduly
painful.'" Kulkay, 847 F.3d at 643 (citing Ambrose v. Young, 474 F.3d 1070,1077) (8th Cir. 2007).
Winegardner argues that the conditions that led to his injury were (l) he had no HV AC
training, (2) the mechanical room was dark, and (3) "proper safety procedures were not followed
such as lock out-tag out." Compl. 3. Assuming arguendo that these conditions establish that there
was an objective risk of serious harm, Winegardner has not shown, or even alleged, that Hunteman
appreciated this risk and acted with deliberate indifference to his safety. Rather, Winegardner
alleges that Hunteman complained about the lack of visibility in the mechanical room and
summarily asserts that Defendants "were aware of the risk/threat of injury, and did nothing to
remedy the situation."

Compl. 3. Yet Winegardner does not allege that Hunteman realized the

safety risk posed by the dark mechanical room and willfully disregarded the danger. Certainly,
Winegardner alleges that Officer Glasco was injured in a similar accident two years before, but he
does not assert that Hunteman knew of that accident or its details.
Importantly, Winegardner's

own statements in the record contradict his vague and

conclusory allegations of deliberate indifference.

He told the IID investigator: "It was my fault.

Nobody did it to me. I can't blame Michael (CMO Hunteman) for it. He wasn't pressing me. I
am relentless sometimes."

IID Rep. 3. Further, Hunteman states that he instructed Winegardner

to check to see if the machine had stopped and then, when Winegardner said that he could not see
ifit was running, he instructed: "that's fine we'll take the cover off. Don't put your hands in there,"
an account which Inmate Czosnowski corroborated. Incident Rep. 11, 16. And, Hunteman stated
that he "had recently killed the power to both air handlers that [the maintenance workers] were
serving," Notice ofIncident, Incident Rep. 11, which suggests an effort to minimize danger, not a

12

willful disregard.
Even when the facts are viewed in the light most favorable to him, Winegardner's
allegations fall far short of showing Hunteman acted with constitutionally required deliberate
indifference to his safety. Accordingly, I shall grant summary judgment in favor of Hunteman. To
the extent Winegardner intends to raise a claim of negligence premised on state law, I decline to
exercise supplemental jurisdiction over this claim. See 28 U.S.C.

S 1367(c)(3).

CONCLUSION
For these reasons, I will grant Defendants' Motion for Summary Judgment by separate
Order.

Date

Paul . Grimm
United States District Judge

13