Miller v. Clarke et al

Filing 78

MEMORANDUM OPINION in re 64 Motion for Summary Judgment. Signed by District Judge Anthony J Trenga on 10/26/2016. (c/s to Plaintiff)(jlan)

P
IN THE UNITED STATES DISTRICT COURT FOR THE

OCT 2 6 20IG

EASTERN DISTRICT OF VIRGINIA
CLERK, U.S. DISTRICT COURT

Alexandria Division

ALEXANDRIA. VIRGINIA

Edwin Miller,
Plaintiff,

I:14cv978 (AJT/JFA)

V.

Harold W. Clarke, et ah.
Defendants.
MEMORANDUM OPINION

Edwin Miller, a Virginiainmateproceedingpro sq,has filedthis civil rights action, pursuant
to 42 U.S.C. § 1983, alleging that officials at the Sussex I State Prison ("SISP") violated his

constitutional rights. Defendants, Sergeant Ricks, Officer Stephenson, Officer Saucedo, and

Lieutenant Curry, have now filed a Motion for Summary Judgment, a memorandum of law, and

affidavits to support theirmotion. Dkt. Nos. 64,65,66. Plaintiffreceived the Notice required by
Local Rule 7(K) and the opportunity to file responsive materials pursuant to Roseboro v. Garrison.
528 F.2d 309 (4th Cir. 1975), and he has filed a response. For the reasons that follow, defendants'

Motionfor Summary Judgment must be granted, and the claimsagainstOfficerC.W. Cookmust be
dismissed, without prejudice.
1. Undisputed Factual Background

On February 15,2014, at approximately 9:40 a.m.. Correctional Officers Cook and Saucedo

were escorting plaintiff to his housing unit. Building 3, fi*om an outside recreational area that

consisted of individual, fenced-in areas. Dkt. No. 65, Ex. I ("Saucedo Aff.") %4. Prior to being
escorted to the housing unit, while he was still in the recreational area, plaintiffwas restrained with
leg irons and his hands were cuffed behind his back. I^ When Cook and Saucedo removed

plaintiff fi'om his recreational area, they locked the door. I^ As they began to escort plaintiffto

his housing unit, plaintiff attempted to pass a note to another offender who was in another
recreational area nearby. Id Cook directed plaintiff to stop and pulled plaintiff away from the
other offender. Id At that point, it appeared that plaintiff became agitated; however. Cook and
Saucedo continued to escort plaintiff away from the recreational area to the housing unit. Id
Once inside the housing unit, as the officers were ascending a set of stairs with plaintiff.
Cook called Lieutenant Curry and asked Curry to come to the housing unit. Dkt. No. 65, Ex. Ill

("Curry Aff.") ^ 4. Curry told Cook that he was on his way, and he began to head toward the 3C
pod together with Sergeant Ricks. Id

At the same time, before Cook and Saucedo arrived at plaintiffs cell. Cook retrieved a can

of OC spray (a.k.a. pepper spray) from Correctional Officer Stephenson, who was working in the
3C/3D control room at that time. Dkt. No. 65, Ex. II ("Stephenson Aff.") 14. In Stephenson's
Incident Report dated February 15, 2014, she stated, "Saucedo came to the booth to get a can of

OC." Id; ^

also Stephenson Aff., En. A. Stephenson does not specifically remember if she in

fact gave the OC spray can to Saucedo or Cook, but she remembers handing it to one ofthem on that
date. Stephenson Aff. 15.

As the control room officer, Stephenson was responsible for opening and closing the cell
doors when offenders entered and exited their cells. Id ^ 4. When Cook and Saucedo arrived at

plaintiffs cell, 3C-02, with plaintiff, Stephensonopenedthe door, and the officers directed plaintiff

inside his cell. Saucedo Aff. ^ 5; Stephenson Aff. H4. Saucedo then removed plamtiff s leg
irons, and Stephenson subsequently closed the cell door. Id At that point, Saucedo opened the
cell door's tray slot, and plaintiff backed up against the tray slot so that his handcuffs could be
removed throughthe slot. Id Saucedo held onto the handcuffs with his righthand and instructed

plaintiffto lower himselfa bit so that Saucedo could put the key into each of the cuffs in order to
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remove them. Id Plaintiff complied. Id. Saucedo then removed the handcuff from plaintiffs

left hand and closed the cuff, holding the removed cuff in his right hand. Id.; Dkt. No. 8 ("Am.
Compl.") (acknowledging that "Officer Saucedo was having a hard time" removing the cuffs).

Then, as Saucedo began to remove the right cuff, plaintiff jerked away, pulling Saucedo's right

hand and arm into the tray slot. SaucedoAff. 15; StephensonAff. f 4. Saucedo instantly pulled

plaintiffbacktowardthe slot, gripping the removedcuff and instructing plaintiffto stop and giveup
the handcuffs, but plaintiffjerked away again, staying, "No." Id.
As plaintiff was defying Saucedo's instructions, Saucedo continued to hold onto the

removed left handcuff to prevent plaintiff from pulling the cuffs completely into the cell. Id.
Additionally, in order to regain control over plaintiff and the handcuffs, Saucedo told Cook to

administer OC spray. Id Cook sprayed plaintiffwith OC spraythrough the tray slot. Id The

first two bursts of spray hit plaintiffs shirtwhile Saucedo continued ordering plaintiffto givehim
the handcuffs. Id Again, plaintiff was defiant, stating"No" and pulling on the handcuffs away

from Saucedo further into the cell. Id; s^ also Am. Compl. at 22 (plaintiffreferred to this as a
"tugging match"). Cook then administered a third burst of OC spray into the cell, this time
spraying plaintiff in the eye area. Id At that point, plaintiffcomplied with the officer's orders

and allowed Saucedo to fiilly remove the handcuffs.

Id

Once the OC spray had been

administered andSaucedo hadremoved plaintiffs cuffs, Saucedo noticed that, dueto rough contact
withthe top of the tray slot while plaintiffhad beenpulling on the cuffs, his righthandwas cut and
bleeding. Saucedo Aff.

5.

During the course ofthe commotion, while onhis way to the pod. Curry called Stephenson

to find out what was happening. Stephenson Aff. K5; Curry Aff. 14. Stephenson informed Curry
that Cook had administered OC spray inplaintiffs cell. Id Soon after. Curry and Ricks arrived
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at plaintiffs cell. Saucedo Aff. 15; Curry Aff. H4. Curry and Ricks removed plaintiff from his
cell and escorted him to the shower for OC spray decontamination. Id At the same time, Curry

instructed Saucedo to go to the medical department to have his bleeding hand examined and treated.
Id. In addition, Curry asked plaintiff whether he wanted to go to the medical department, and

plaintiff refused. Curry Aff. ^ 4. Finally, Curry instructed Stephensonto call the power plant and
have them turn on the exhaust system in 3C to decontaminatethe pod. Id
At approximately 10:30 a.m.. Ricks and Curry placed plaintiff back into his cell that had

been decontaminated from the use of OC spray - the incident was effectively over. Id Plaintiff
alleges that Ricks and Curry knew that Cook and Saucedo had less than six (6) months of

experience working as officers and should not have been authorized to work on the pod
unsupervised. Am. Compl. at 22, 31.

In his amended complaint, plaintiff makes the following relevant claims:
1. Saucedo failed to follow jail policy and procedure when he did not use a tether during the
removal ofplaintiffs handcuffs, and he used excessive force againstplaintiffin violationof
the Eighth Amendment.

2. Stephenson knew that Saucedo and Cook's actions violated policies and procedures, and
Stephenson did nothing to prevent the use of excessive force, in violation of the Eighth
Amendment.

3. Curry knowingly authorized Saucedo and Cook to work in the pod unsupervised even
though they were inexperienced; therefore, he failed to protect plaintifffrom the officers'
actions andknewthatthe officers didnot follow proper policies andprocedures in regard to
using OC spray and handling plaintiff.

4. Curry disregarded plaintiffs need for medical treatment in violation of the Eighth
Amendment.

5. Curry violated plaintiffs First Amendment right to free speech by complicating and
rendering impossible the investigation of the incident and by hindering the grievance
process and making false allegations.

6. Ricks kept the officers' actions hidden and specifically failed to produce a report or inform
the Watch Commander of the February 15, 2016 incident, as required by policies and
procedures.

7. Ricks created a dangerous situation because he knew that Saucedo and Cook lacked the
necessary experience to work in the pod without a senior officer present.
8. Ricks disregarded plaintiffs need for medical treatment in violation of the Eighth
Amendment.

See generally Am. Compl. at 22-43.
IL Standard of Review

Summaryjudgment "shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the movingparty is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56. The moving party bears the burden of proving that judgment on the
pleadings is appropriate.

Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986). To meet that

burden, the moving party must demonstrate that no genuine issues of material fact are present for
resolution. Id. at 322. Once a moving party has met its burden to show that it is entitled to

judgmentas a matterof law,the burden then shiftsto the nonmoving partyto point out the specific
facts that create disputed factual issues. Anderson v. Libertv Lobbv. Inc.. 477 U.S. 242, 248

(1986); Matsushita Elec. Indus. Co. v. Zenith Radio Com.. 475 U.S. 574, 587 (1986). In

evaluating a motion forsummary judgment, a district courtshould consider the evidence in the light
most favorable to the nonmovingparty and draw all reasonable inferences fi*om those facts in favor

of that party. United States v. Diebold. Inc.. 369 U.S. 654, 655 (1962).

Those facts which the moving party bears the burden of proving are facts which are

material. "[T]he substantive law will identify which facts are material. Only disputes over facts

which might affect the outcome ofthe suit under the governing law will properly preclude the entry
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of summary judgment." Anderson. All U.S. at 248. An issue of material fact is genuine when,

"the evidence ... create[s] [a] fair doubt; wholly speculative assertions will not suffice." Ross v.
Commc'ns Satellite Corp.. 759 F.2d 355,364 (4th Cir. 1985), abrogated on other grounds bv Price
Waterhouse v. Hopkins. 490 U.S. 228 (1989). Thus, summary judgment is appropriate only where
no material facts are genuinely disputed and the evidence as a whole could not lead a rational fact
finder to rule for the nonmoving party. Matsushita. 475 U.S. at 587.
III. Analysis

a. PlaintifTs Claims Alleging Violations of Policies and Procedures Are Not
Cognizable in a § 1983 Civil Action

To the extent plaintiff alleges that defendants violated policies and procedures, he is not

entitled to relief on these claims. Throughout his Amended Complaint, plaintiff alleges that
Saucedo and Cook violated Virginia Department of Corrections ("VDOC") policies and
procedures, as they related to the February 15, 2014 incident. Additionally, he alleges that
Stephenson, Curry, and Ricks were aware of these violations.

However, violations of state

policies and procedures are not actionable in § 1983 civil suits. S^ Wright v. Collins. 766 F.2d

841, 849 (4th Cir. 1985) ("Section 1983 was intendedto protect only federal rights guaranteed by

federal law, and not tort claims for which there are adequate remedies under state law.").
Plaintiffs claims regarding violations of VDOC policies and procedures therefore fail, and
defendants are entitled to summary judgment on these matters.
b. With Regard to PlaintifTs Eighth Amendment Claims, Defendants are Entitled to
Summary Judgment

The Eighth Amendment's prohibition on cruel and unusual punishment prohibits prison
administrators from inflicting "unnecessary and wanton infliction of pain" on inmates. Wilson v.

Seiter, 501 U.S. 294, 297 (1991) (quoting Estelle v. Gamble. 429 U.S. 97, 104 (1976)). Because
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the Eighth Amendment does not prohibit prison officials from all uses of force, only uses of force
that actually inflict such unnecessary and wanton pain violate the Eighth Amendment. See, e.g..

Whitlev V. Albers. 475 U.S. 312,319 (1986) ("It is obduracy and wantonness, not inadvertence or

error in good faith, that characterizethe conductprohibitedby the [EighthAmendment]."). When
analyzing a claim of excessive force, therefore, the "core judicial inquiry" is "whether force was

applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm." Hudson v. McMillian. 503 U.S. 1, 7 (1992); s^ also Whitlev. 475 U.S. at 320.
"One acts 'maliciously' by undertaking, without just cause or reason, a course of action intended

to injure another; in contrast, one acts 'sadistically' by engaging in extreme or excessive cruelty
or by delighting in cruelty." Cherrv v. Sherin. No. 3:10CV434,2012 WL 664203 (E.D. Va. Feb.
28,2012) (quotmg Howard v. Bamett. 21 F.3d 868, 872 (8th Cir. 1994)).

The Supreme Court has identified a number of "factors to assist courts in assessing

whether an officer has acted with wantonness." Iko v. Shreve. 535 F.3d 225, 239 (4th Cir. 2008)
(internal quotation marks omitted). These include: (1) the need for the application of force; (2)
the relationship between the need and the amount of force that was used; (3) the extent of any
reasonably perceived threat that the application of force was intended to quell; and (4) any efforts

made to temper the severity of a forceful response. Whitlev. 475 U.S. at 321. Additionally,

although not dispositive, the extent of injury suffered by the inmate is relevant to the subjective
inquiry, as it "may suggest whether the use of force could plausibly have beenthought necessary

in a particular situation." Wilkins v. Gaddv. 559 U.S. 34, 38 (2010). By considering these

factors, courts in specific cases candetermine whether the force used could reasonably have been

considered necessary, or whether it "evinced such wantonness with respect to the unjustified

infliction of harm as is tantamount to a knowing willingness that it occur." Whitlev. 475 U.S. at
321;^ also Wilkins. 559 U.S. at 36.
i. Saucedo Did Not Use Excessive Force Against Plaintiff

In this case, the uncontested evidence shows that Saucedo did not use excessive force

against plaintiff. The incident began as Saucedo and Cook escorted plaintiff, who appeared
agitated, back to his cell from the recreation area. When they first arrived at the cell, plaintiff
complied with the removal of his leg irons and Saucedo's instructions to squat down so that
Saucedo could remove his handcuffs through the tray slot. However, after one cuff was removed,

plaintiff became noncompliant and aggressively resistant. As Saucedo attempted to remove

plaintiffs second handcuff, plaintiffjerked away into his cell, yanking Saucedo's hand and arm
into the tray slot.

Plaintiffs own admissions actually weaken his Eighth Amendment claim against Saucedo.

S^ Am. Compl. at 34, 38. Plaintiff admits that Saucedo was having difficulty in removing the

handcuffs, and as a result Saucedo hadto tug and pull on the cuffs, which caused painto plaintiff.
Id.at 38 (admitting that"defendant Saucedo was having a hardtime removing plaintiffs handcuffs,
and begunto pull and tug on the handcuffcausmg plaintiffsomepain"). Plaintiffthen alleges that
as one handcuff became free, plaintiff moved away from the cell door and turned around, and so

Saucedo pulled plaintiff s armbythe handcuffbackintothe trayslot in orderto regain control over

plaintiff and the handcuffs. Plaintiff alleges that he pulled his arm back at that point, thereby

admitting that he actively resisted Saucedo's effort to remove the left handcuff. See Am. Compl.
at22 (plaintiffreferred tothis asa "tugging match"). Aside from plaintiffsconclusory allegations
and assertion that "[t]heuse of OC wasn't needed as plaintiff posed no immediate threat," there is
absolutely no evidence that plaintiff was calm and in control or that Saucedo or Cook acted with
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malice or sadistic intent to cause harm to plaintiff. Hence, Saucedo used only the minimal amount
of force necessary to maintain control over plaintiffand to effectively remove his handcuffs, and he
is entitled to summary judgment on plaintiffs Eighth Amendment claim.
ii. Stephenson Cannot be Held Liable Under the Theorv of Bystander Liability

Plaintiffclaims that Stephenson watched Saucedo and Cook use excessive force against him

and failedto preventthe use ofsuchforce. "[A]n officermay be liableunder § 1983, on a theoryof
bystander liability, if he: (1) knows that a fellow officer is violating an individual's constitutional
rights; (2) has a reasonable opportunityto prevent the harm; and (3) chooses not to act." Randall v.
Prince George's Ctv.. Md.. 302 F.3d 188, 204 (4th Cir. 2002) (footnote omitted). However, as a

prerequisiteto establishing bystander liability,a plaintiff must prove a violation of a constitutional

right by the fellowofficer. Id; ^ ^SQ Willisv. Oakes. 493 F.Supp.2d 776,784 (W.D. Va. 2007).
For the reasons stated above, it is clear that Saucedo and Cook did not violate plaintiffs Eighth

Amendment rights, so Stephenson cannot be held liable under this theory of bystander liability for
an Eighth Amendment violation.
iii. Curry and Ricks Did Not Fail to Protect Plaintiff from the Use of Excessive
Force

Plaintiff claims that Curry and Ricks, as supervisors, knowingly authorized Cook and
Saucedo to work in the pod unsupervised even though they were inexperienced, thereby creating a

dangerous situation for plaintiff in violation of the Eighth Amendment. In order to establish a

claim for cruel and unusual punishment due to conditions of confinement, a plaintiffmust allege
facts sufficient to show (1) an objectively serious deprivation of a basic human need, that is, one

causing serious physical or emotional injury, and (2) that prison officials were deliberately
indifferent to that need. Farmer v. Brennan. 511 U.S. 825, 834 (1994); Wilson v. Seiter. 501 U.S.

294,198 (1991). To meet the first prong, plaintiff must establish facts sufficient to show that the
condition complained of was a "sufficiently serious" deprivation of a basic human need. Farmer.
511 U.S. at 834; ^

also Odomv. S.C. DeoH ofCorr.. 349 F.3d 765, 770 (4th Cir. 2003). Only

extreme deprivations will make out an Eighth Amendment claim, and it is plaintiffs burden to
allege facts sufficient to show that the risk from the conditions ofhis confinement was so grave that

it violated contemporary notions of decency and resulted in serious or significant physical or
emotional injury. Hudson v. McMillian. 503 U.S. 1,8 (1992); Strickler v. Waters. 989 F.2d 1375,

1379-81 (4th Cir. 1993). To meet the second prong, plaintiff must establish facts sufficient to
show that defendants knew of ckcumstances from which an inference could be drawn that a

"substantial risk of serious harm" was posed to plaintiffs health and safety, that they drew that
inference, and then disregarded the risk posed. Farmer. 511 U.S. at 837; s^ also Saunders v.

Buckner. Case No. I:07cv501 (LMB/JFA), 2008 WL 4104439, at *6 (E.D. Va. Aug. 28, 2008),

affd. 350 F. App'x 825 (4th Cir. 2009) (internal quotations omitted) ("A prison official shows
deliberate indifference if he knows of and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts fi-om which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the inference.").

Assuming, arguendo. thatplaintiffhassatisfied thefirst prong of thetest, plaintiffhasfailed

to establish thatCurry andRicks were deliberately indifferent to hissafety. Plaintiffalleges thatat
approximately 8:45 a.m.. Curry was inside thecontrol room on thepodand sawSaucedo andCook
remove plaintiff firom his cell to go to therecreation areawithout using a tether to maintain control

over him. However, plaintiffhas failed to assert that Curry orRicks knew and disregarded the fact

that Saucedo and Cook's failure to use the tether presented a risk toplaintiffs safety. Aside from

his conclusory allegations about violations of his Eighth Amendment rights, plaintiff does not
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allege any other facts suggesting that he was subject to an excessive risk to his safety by Saucedo

and Cook merely working in the housing unit unsupervised, nor does plaintiffallege that Curry and
Ricks knew of and disregarded any such risk. Furthermore, for the reasons stated above, Saucedo

and Cook's use of force to maintain control over plaintiff, while he was noncompliant and actively
resisting efforts to have his handcuffs removed, was not excessive. Therefore, Curry and Ricks did

not fail to protect plaintiff fi"om excessive force, and they are entitled to summary judgment on
plaintiffs claim.

c. Curry and Ricks are Entitled to Summary Judgment on Plaintiffs Claim That
They Failed to Investigate or Report the Incident

Plaintifferroneouslyallegesthat Curryviolatedhis First Amendmentright to free speech by
complicating the investigation of the incident and hindering the grievance procedure through false
allegations. Plaintiff additionally claims that Ricks failed to report the incident or inform the
Watch Commander of the incident and that he kept the officers' actions hidden.

"[T]he Constitution creates no entitlement to grievance procedures or access to any such
procedure voluntarily established by a state." Adams v. Rice. 40 F.3d 72, 75 (4th Cir. 1994).

Additionally, plaintiffdoes not have a constitutional right to an investigation of the incident. S^
e.g.. Sprinkle v. Barksdale. No. 7:08CV00430,2009 WL 1956370, at *5 (W.D. Va. July 6, 2009);
Phillips V. Pocahontas State Corr. Ctr.. Case No. 7:09cv00098,2009 WL 890475, at *4 (W.D. Va.

Mar. 31, 2009); Moore v. Gregory. Case No. 7:06cv00546, 2007 WL 1555774, at *8 (W.D. Va.
May 22, 2007), report and recommendation adopted. Case No. 7:06cv00546, 2007 WL 1747145

(W.D. Va. June 15, 2007). Because plaintiff does not have a constitutional right to the grievance

procedure or to an investigation of the incident. Curry and Ricks are entitled to summary judgment
on these claims.

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d. Curry and Ricks Were Not Deliberately Indifferent to Plaintiffs Serious Medical
Needs

Plaintiff asserts that Curry and Ricks disregarded his need for medical attention. To
establish an Eighth Amendment claim for inadequate medical care, a plaintiff must show facts

sufficient to show that jail officials were deliberately indifferent to the plaintiffs serious medical
need. Estelle v. Gamble. 429 U.S. 97,105 (1976); Staples v. Va. Dep't ofCorr.. 904 F. Supp. 487,
492 (E.D. Va. 1995). Thus, plaintiff must assert two distinct elements to state a claim upon which
relief can be granted. First, he must establish a sufficiently serious medical need.

See, e.g..

Cooper V. Dvke. 814 F.2d 941, 945 (4th Cir. 1987) (determining that intense pain from an

untreated bullet wound is sufficiently serious); Loe v. Armistead. 582 F.2d 1291 (4th Cir. 1978)

(concluding that the "excruciating pain" of an untreated broken arm is sufficiently serious).
Second, he must establish deliberate indifference to that serious medical need.

Under this

second prong, an assertion of mere negligence or even malpractice is not enough to state an Eighth
Amendment violation; instead, plamtiff must allege deliberate indifference "by either actual mtent
or reckless disregard." Estelle. 429 U.S. at 106; Daniels v. Williams. 474 U.S. 327, 328 (1986);

Miltierv. Beom. 896 F.2d 848,851 (4th Cir. 1990). To do so, the prisoner must demonstrate that
defendants' actions were "[s]o grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness."

Miltier. 896 F.2d at 851 (citations

omitted). The Fourth Circuit has held that in order to bring a medical treatment claim against
non-medical prison officials, an inmate must show thatthose officials were personally involved in

the denial of treatment, deliberately interfered with prison doctors' treatment, or tacitly authorized
or were indifferentto the prison physicians' misconduct.

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Id at 851-54.

After plaintiff was sprayed with OC spray, his handcuffs were removed, he was
immediately taken to the shower, and his cell was decontaminated.

Despite the fact that

defendants appear to have adequately addressed plaintiffs discomfort, the Court will assume,
arguendo. that plaintiff suffered from a serious medical need.

However, the uncontested

evidence in this case establishes that defendants Curry and Ricks were not deliberately indifferent

to any of plaintiffs needs.

The evidence in the record shows that plaintiff refused medical

treatment when Curry offered it to him, as Curry and Ricks escorted plaintiff to and from the

shower after he had been sprayed with OC spray. Curry Aff. ^ 4. Accordingly, Curry and
Ricks were not deliberately indifferent to plaintiffs serious medical needs, and they are entitled to
summary judgment on this claim.

e. Defendants are Afforded Immunity and Cannot be Held Liable

Becausethe Court has madea determination on the meritsofplaintiffs claims,a discussion
as to defendants' immunity argument is not necessary.
IV. Motion for Default Judgment

Plaintiff has filed a Declarationfor Entry of Default, which will be construed as a Motion

for Default Judgment against defendant Cook. Dkt. No. 77. By Order dated October 30, 2015,

thisCourt directed service upon defendants Ricks, Cook, Saucedo, and Stevens.^ Dkt. No. 14. At

that time, plaintiff was advised that if the Court was unable to effect service on any of the named
defendants through the October 30,2015 Order and the defendant was not otherwise served within

120 days of filing, that the claims against that defendant would be dismissed from the instant action

' Counsel for defendants notified this Court that there was no "Officer Stevens" employed at
Sussex I on February 15, 2014. At that time, Officer Stephenson was the control booth officer in
plaintiffs housing unit on that date. Therefore, the undersigned counsel waived service and
entered an appearance for Officer Stephenson in place of "Officer Stevens." Dkt. No. 32
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without prejudice.

Id;

also Fed. R. Civ. P. 4(m).

Over 320 days have passed since

October 30, 2015, and defendant Cook has never been served. Because Cook has not been served,

plaintiffs motion must be denied, and the claims against him will be dismissed without prejudice.
V. Conclusion

For the foregoing reasons, the claims against Cook will be dismissed, without prejudice, and

the remaining defendants' Motion for Summary Judgment must be granted. An appropriate
Judgment and Order shall issue.

Entered this

day of C3

^

2016.

Alexandria, Virginia
AnthonyJ.

United States

Judge

^For purposes ofcalculation, the complaint was deemed as filed on the same date as this Order,
October 30, 2015.

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