Bryant-EL v. Corcoran

- IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

_ CORTNEY BRYANT-EL, * :

Vv _ * Civil Action No. CCB-18-1519

DAYENA CORCORAN, et. al., * .

oe . MEMORANDUM OPINION

Plaintiff Cortney Bryant-El is an inmate at North Branch Correctional Institution (NBCI)

in Cumberland, Maryland. He filed this lawsuit pursuant to 42 U.S.C. §1983, alleging that

defendants violated his rights under the First, Eighth and Fourteenth Amendments. Pending is a

Motion to Dismiss, or in the Alternative, Motion’ for Summary Judgment filed by former

Commissioner of Correction Dayena Corcoran, Lieutenant Walter Iser, Sergeant William Thomas,

C.O. I Brian Fann, C.O. II Bobby J. Ziler, C.O. Il Dougias E. Frazee, C.O. II David J. Donaldson,

Sr., C.0. Ii David C. Robey, and C.O, II Charles L. Barb! (collectively, the “State Defendants”)

ECF 25.? Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), plaintiff was notified

that he may file an opposition with exhibits and affidavits and of the conséquences of failing to do

1 The Clerk shall amend the docket to reflect full and proper spelling of all Defendants’ names.

? On January 30, 2019, the Court granted in part and denied in part the Medical Defendants’ Motion to Dismiss or, in

the Alternative, Motion for Summary Judgment. ECF 32, 33. The court dismissed the claims against Tammy Buser

and Stacie Mast, and denied summary judgment as to Ryan Browning, LPN, and Dawn Hawk, R.N. Jd. Dawn Hawk

is also known as Dawn Showalter. See Bryant-E/ y. Corcoran, Civil Action No. CCB-17-3675, ECF 27-1; Aff. of

Dawn. Hawk, ECF 27-5 at pp. 4-6. The court deferred issuing a scheduling order until the claims against the State

Defendants were considered. ECF 33. :

so. ECF 25. Plaintiff filed an opposition with exhibits.* ECF 31. Also pending are plaintiffs

Motion to Appoint Counsel, which will be granted, and Motion to Present Additional Evidence,

which will be denied. ECF 35, 26.

After reviewing the parties’ submissions, the court concludes a hearing is unnecessary at .

this time. See Local R. 105.6 (D. Mad. 2018). For reasons to follow, the State Defendants’ Motion

(ECF 24), treated as a Motion for Summary Judgment, will be granted in part and denied in part.

BACKGROUND

Plaintiff alleges in his unverified complaint that he was subjected to excessive force,

unconstitutional conditions of confinement, and retaliation during and after a January 26, 2017 use

of force incident at Western Correctional Institution (WCI). ECF 1. As relief, he is seeking

monetary damages and injunctive relief, including an investigation into medical care, and a transfer

to a facility away from western Maryland. ECF 1 at pp. 7-10, 22-23, 25-26.

Plaintiff filed with his complaint the declaration of another inmate, Felix Fitzgerald. ECF

Plaintiff alleges that on January 26, 2017, he and Fitzgerald saw Officer Barb remove

chewing tobacco from his mouth and throw it into a trash can. Fitzgerald removed the discarded

tobacco from the trash to use as evidence that WCI officers routinely violate the prohibition against

using tobacco products in state buildings. Plaintiff and Fitzgerald decided to submit an

Administrative Remedy Procedure request (“ARP”) about the violation. According to plaintiff

3 Plaintiff also filed a declaration that asks for documents and a copy of the video footage of his cell to show that he

was deprived of a mattress and bed linens. ECF 31-1. Importantly, plaintiffs declaration does not verify his

allegations are correct and true or otherwise refute the declarations filed by the State Defendants.

4 Plaintiff and Fitzgerald pleaded guilty in the Circuit Court for Allegany County to assault on a correctional officer

based on the incident and cach was sentenced to a term of six months of incarceration. ECF 24-39; ECF 24-40; see

Criminal Case No. C-01-CR-18-000292 (Cir. Ct Allegany Cty.); Criminal Case No, C-01-CR-18-000058 (Cir. Ct

Allegany Cty.). Plaintiff is serving a life sentence for first degree murder, armed robbery, and conspiracy to commit

armed robbery. ECF 24-32 at pp. 80-84.

and Fitzgerald, Officer Ziler saw Fitzgerald take the discarded tobacco from the trash can. ECF 1

at pp. 2, 4, Fitzgerald Decl. ECF 1-1 at p. 1.

Later that day in the recreation room, plaintiff showed a draft of the ARP and the chewing

tobacco to other inmates and then gave the tobacco to Fitzgerald to hold. ECF 1 at p. 4; Fitzgerald

Decl. ECF 1-1 at p. 1. At approximately 1:15 p.m., plaintiff saw Officers Ziler, Barb, Frazee,

Donaldson, and Robey look into the recreation room, enter the wing, and proceed to the top tier of

the wing. Ziler and Robey entered the recreation room and asked the inmates if they were holding

“some kind of meeting.” ECF 1 at p. 4; Fitzgerald Decl. ECF 1-1 at pp. 1-2. Plaintiff asserts

Robey was pointing a can of pepper spray directly at him while Donald pulled the trash bag from

the can located in the recreation room. Ziler approached plaintiff, stating “Come with me Bryant.

I want to talk to you.” ECF 1 at p. 5. When plaintiff asked why, Ziler instructed him to turn

around for handcuffing. Plaintiff alleges that after he complied, Ziler stated “We’re going to light

you up.” /d; Fitzgerald Decl. ECF 1-1 at p. 2. Plaintiff states this expression alludes to the burning

sensation caused by pepper spray and indicated the officers’. intent to use it. Plaintiff asserts that

Robey moved closer to him while still pointing the can of pepper spray. Plaintiff asked Officer

Donaldson “What’s this about; me talking about an ARP?” Donaldson answered, “Just go with □

him and have a quick conversation.” ECF 1 at p. 5.

Plaintiff followed Ziler into the recreation room. Ziler said “This is what I want, the

tobacco that I saw you grab out of the trash can.” Jd. Plaintiff alleges that when he denied taking

the tobacco, Ziler lunged at him with his right hand outstretched as if trying to strike him. Plaintiff

moved to avoid getting hit and fell on to the wall. Robey and two other officers then sprayed

“copious amounts of the chemical agent” on his face and body. /d

Fitzgerald’s declaration supports plaintiffs description of the incident. Fitzgerald states

he saw Ziler “suddenly strike out at Bryant-El with a jab motion” and Bryant-El “appeared to fall

away to avoid being hit.” Fitzgerald Decl. ECF 1-1 at p. 2] 12. Fitzgerald recalls that he saw

“Bryant being continuously sprayed with the chemical canisters of 3 correctional officers even

though I never saw him attack or even try to hit anyone.” Fitzgerald Decl. ECF 1-1 at p. 2 4 13.

Plaintiff alleges that due to the effects of the pepper spray and his chronic asthma, he fled

into the recreation room to escape “the inundation of myself from the chemical compound.” ECF

1 at p. 5. In his haste to get to a window, plaintiff asserts that he bumped into someone, possibly

a correctional officer, but denies he physically harmed, struck, injured or assaulted anyone.

Plaintiff asserts an inmate guided him to a window, while another inmate poured water over his

head to alleviate the effects of the pepper spray. Jd. at pp. 5-6.

Defendants Ziler, Barb, Robey, Donaldson, and Frazee dispute plaintiff's account of the

use of force incident in their declarations. Barb and Ziler state that on January 26, 2017, they

responded to the recreation hall to investigate a large group of inmates gathered inside the top tier

recreation hall. In order to speak to plaintiff in a safer environment for staff, they escorted him

away from the recreation area. Before exiting the recreation area, plaintiff pulled away and began

to assault Officer Ziler with closed fist punches and threw Ziler past Barb on the tier floor. Ziler

landed on his shoulder. Barb used his radio to call a staff alert that an assault on staff was in

progress. Donaldson and Frazee approached plaintiff to halt his assault on Ziler, and plaintiff

began to assault them. Plaintiff struck Donaldson in the head and Frazee on his face with closed

fisted punches. Barb states he then administered a one or two second burst of pepper spray in an

attempt to end the assault, not to retaliate against plaintiff for filing an ARP, but to stop further

assaults on staff. Decl. of Charles Barb, ECF 24-9; Decl. of Bobby Ziler, ECF 24-10; Decl. of

David Donaldson, ECF 24-11; Decl. of Douglas Frazee, ECF 24-12; Decl. of David Robey, ECF

24-13, ,

Robey states that as he left the recreation hall, Fitzgerald struck him in the back of the head.

Robey deployed a one second burst of pepper spray to prevent further escalation of the assault.

ECF 24-13. Robey denies he used the pepper spray to retaliate against plaintiff for attempting to

file an ARP. Jd.

Ziler and Frazee required medical evaluation outside the facility following the incident.

ECF 24-32 at p. 12. Ziler states he has been unable to resume his duties as a WCI correctional

officer due to the injuries he received during the assault. ECF 24-10.

Plaintiff alleges that he did not receive a decontamination shower for pepper spray

exposure and the “harm” lasted for months. ECF 1 at pp. 7, 21-22. Notably, he does not claim he

actually requested a decontamination shower, but rather his need for a shower was obvious and is

required by applicable directives. ECF 31 at p. 14.° He alleges the pepper spray aggravated his

asthma and caused lesions on his scalp as well as lingering skin pain. He asserts that he also

continues to suffer mental and emotional anguish about the incident. ECF 1 at pp. 7, 12.

Plaintiff contends the use of force was “without penological justification” and exceeded

“any reasonable need as such may sometimes exist in a prison setting.” /d. at p. 6. Plaintiff claims

Ziler, Barb, Frazee, Donaldson, and Robey subjected him to excessive force in violation of the

Eighth Amendment and Maryland Law. ECF | at p. 6. Further, he claims Ziler, Barb, Frazee,

Donaldson, and Robey “worked together” to conspire and retaliate against him for attempting to

file an ARP about employee use of tobacco in state buildings. /d. at p. 7. Plaintiff also claims

iaintitt was examined by medical providers on January 26, 2017, after the incident. ECF 17-2 at pp. 5-6; ECF 10-

at pp. 3, 3.

Ziler, Barb, Frazee, Donaldson, and Robey violated his right under the First Amendment to petition

for redress through the prison ARP process by singling him out after observing him with an ARP

form.® Ja. at p. 10. He is suing Ziler, Barb, Frazee, Donaldson, and Robey in their official and

individual capacities for punitive and compensatory damages. Jd. at pp. 7~10.

The Internal Investigation Division (HD) was notified of the incident. ECF 24-32 at p. 12.

The IID case (IID Case No. 17-35-00172) was assigned to Det. Sergeant Corey McKenzie, and

later reassigned to Det. Sergeant Likin for investigation. ECF 24-32 at p. 12. In the institutional

reports Chief of Security Bradley Butler determined the incident was a spontaneous response by

officers with less than lethal use of force. Butler and Warden Graham concluded correctional staff

had acted in accordance with the Department of Public Safety and Correctional Services (DPSCS)

Use of Force (UOF Manuel), but staff were advised to evaluate their surroundings and gather

adequate staff to control a situation prior to entry. ECF 24-5 at pp. 3-4. Plaintiff and Fitzgerald

refused to give statements after the incident.’

Detective Likin, the IID investigator, reviewed institutional reports and the surveillance

video, noting the incident was only partially captured on the surveillance video due to the position

of the cameras. He noted that the video shows Ziler falling to the ground and staff coming to assist

him, but not the full incident. ECF 24-32 at p. 12. Likin made an application for a statement of

charges against plaintiff, and the Allegany County District Court Commissioner issued a criminal

summons charging him with three counts of second degree assault on a Department of Correction

§ Plaintiff filed ARP-NBCI-79 1-17 complaining that correctional officers use tobacco products in violation of a ban

on such products and exposed him to harmful effects. ECF 24-33 at p. 1. He appealed to the Inmate Grievance Office

(iGO). On December 19, 2017, the IGO administratively dismissed the grievance for failure to state a claim upon

which administrative relief can and should be granted and noted the complaint would be forwarded to the Internal

Investigative Division (IID) to investigate plaintiffs allegations of staff contraband. ECF 31-2 at p. 3.

7 The documents state “Inmate reftised to give statement.” ECF 24-5 at pp. 20-21. The documents are unsigned by

plaintiff, Fitzgerald, or a correctional officer who wunesse the refusals. Id.

employee. ECF 24-21 at p. 13. Likin concluded no further investigation was needed and requested

the case be closed. ECF 24-32 at 14; ECF 24-32 at pp. 124-27 (Dist. Ct for Allegany County,

Crim Case D-121-CR-17-000266); see also supra n. 4.

Plaintiff was also served with a Notice of Inmate Rule Violation for violating Rules 100

(engaging in a disruptive act) and 101 (assault or battery on staff). ECF 24-5 at p. 22.8 Plaintiff

told the hearing officer that on January 26, 2017, he noticed Barb spitting chewing tobacco into a

cup and placing it in the trash can. Barb then walked into the “institutional bubble.” ECF 24-29

at p. 4. Fitzgerald went to the trash can to get the cup with the tobacco. Ziler tapped on the window

and asked what they were doing. Plaintiff responded they were not doing anything. At 12:30,

plaintiff went to the recreation area, and started showing, other inmates the tobacco and ARP. At

about 1:15, officers came on the tier. Donaldson took out the trash bag and started to search it.

Ziler asked the inmates whether they were having a meeting and asked plaintiff to step out to the

tier to talk, Plaintiff asked why because he did not do anything. Then Ziler pulled out a mace can

and pointed it at plaintiff. Plaintiff denied doing anything and returned to the day room to watch

television. Plaintiff said Ziler followed him, asked him where the tobacco was, and lunged at him.

Plaintiff moved out of the way and fell against a wall. Then another officer used pepper spray on

him and plaintiff took off his shirt. ECF 24-29 at pp. 4-5.

The hearing officer found after reviewing the Notice of Infraction and supporting

documents that plaintiff was guilty of violating Rules 100 and 101. Plaintiff received 300 days of

Plaintiff moved to dismiss the charges against him because his hearing was held more than seven days after he was

charged. The hearing officer denied the request because the hearing was postponed because plaintiff had requested

video footage and other evidence that needed to be collected. ECF 24-29 at p. 3. In his Motion to Add Additional

Evidence, plaintiff requests to file the record from his disciplinary hearing. Because these records are already part of

the record, the motion will be denied. ECF 36, ECF 36-1

segregation confinement and his visitation privileges were revoked indefinitely. ECF 24-29 at pp.

5-6

Plaintiff alleges that defendant Officer Fann interfered with his medical care by not

escorting him to the chronic care clinic on February 21, 2017. ECF 1 at p. 14-15. Plaintiff asserts

that when he asked the officer his name, Fann initially gave him a false name and commented

“Robey is a good buddy of mine,” which plaintiff understood to mean that he was refusing the

escort on Robey’s behalf. Jd. at p. 15. Plaintiff wanted to see a provider in the chronic care clinic

to explain he needed an asthma inhaler since the one he had was depleted. /d at 15. As relief

plaintiff asks for punitive damages against Fann for violating his rights under the Eighth

Amendment, “Maryland laws and Departmental regulations.” Jd. at p. 16.

Fann denies refusing to provide his name or providing a false name to plaintiff. Fann Aff.

ECF 24-25. According to Fann, on February 21, 2017, plaintiff chose to participate in outdoor

recreation rather than attend his medical appointment. Id. Fann states he has not been involved

in, interfered with or delayed plaintiff's medical care, nor has he ever harassed, threatened,

conspired or retaliated against plaintiff and has no knowledge of other staff members doing so.

ECF 24-25.

Plaintiff alleges that when Sgt. Thomas escorted him from WCI to NBCI on January 26,

2017, Thomas told him that he was being taken to a “state sponsored hell especially built for guys

like you who like to rabble rouse and fight officers.” ECF 1 at p. 21. Plaintiff claims he was

placed in a “contingency” cell without running water, the window was locked shut, and the toilet

did not work. He was not provided with toilet paper, a mattress or bed linen. A plexiglass barrier -

positioned around the cell door further prevented the flow of air into the cell and there was no

other means of ventilation. /d@. Plaintiff alleges he had difficulty breathing due to his respiratory

condition, which was aggravated by his exposure to pepper spray, and lack of air flow. He claims

to have “passed out” twice due to these conditions, fd. at p. 22.

Plaintiff also claims he was denied food on January 26, 2017, and from “January 26th □

through January 31st” his food was thrown on the cell floor. /d, For five days, he had no soap,

toothpaste, toilet paper, wash cloths, deodorant, running water, or out-of-cell activity. He claims

the cell smelled of human excrement causing him to vomit whenever he tried to eat.

Plaintiff claims that Officer Marchinke told him sick call procedures were unavailable to

him “per orders of Sgt. Thomas.” Jd. Plaintiff is suing Sgt. Thomas for damages for subjecting

him to unconstitutional conditions of confinement, denying him access to medical care in

contravention of the Eighth Amendment, the Equal Protection Clause, made applicable by the

Fourteenth Amendment, the Maryland Bill of Rights, and Departmental regulations. at pp. 22-

23.

Thomas disputes plaintiff's assertions and denies ever instructing a correctional officer to

prevent or interfere with plaintiffs access to the sick call process. ECF 24-14. Further, he denies

interfering with or delaying medical care to plaintiff, and states he has no knowledge of any

custody staff under his supervision doing so. /@. Thomas states that when he escorted plaintiff

from WCI to NBCI, the escort was uneventful and he was unaware of the reasons for plaintiffs

transfer. Jd. Thomas recalls that the plaintiff did not ask him for a decontamination shower, nor

was he aware that plaintiff requested one from another correctional officer. Thomas explains

plaintiff was placed on Staff Alert Status upon arrival at NBCI. ECF 24-14; ECF 24-18 at p. 1;

ECF 24-19. Inmates who pose a substantial threat to institutional security or staff may be

temporarily placed in this status no longer than it takes to modify the behavior. ECF 24-14.

Thomas asserts NBCI does not designate or use a specific area in the institution as a “contingency

ECF 24-14 § 11; ECF 24-24.

Thomas explains that Staff Alert is a status, not a housing location. During the time

plaintiff was on staff alert, he was placed in Housing Unit 1, Cell 1-C-22. ECF 24-14. Cells used

for Staff Alert status inmates may have a plastic security barrier placed in front of the cell to limit

an inmate’s ability to throw feces and urine at corrections officers. Further, and contrary to

plaintiff's assertions, the ventilation system in the housing units at NBCI cannot be shut off as to

individual cells and the window in his cell was not locked. Jd. Thomas states water to individual

cells may be temporarily shut off when the occupant has a history of or makes threats of clogging

the drainage system with the intent of flooding the cell or tier. Temporarily shutting off the water

to an inmate’s cell is not done to retaliate or punish the inmate. ”

Cells housing inmates on staff alert status may use a security pass through, a device

attached to the cell which allows staff to safely pass items through the feed slot and avoid physical

contact with the inmate. Bagged meals and medications are secured in the security pass through

for the inmate. Staff Alert security procedures require the inmate to move to the back of the cell,

face the back wall, and kneel while the feed-up slot is opened. A refusal to follow these procedures

is considered a refusal of medication or meals by the inmate. Toiletries and clean clothes are

provided to inmates on Staff Alert status as needed. ECF 24-14 4 11. The record indicates that

plaintiff refused to follow these procedures and therefore declined his meals. ECF 24-14 712; ECF

24-20 at pp. 4-5. On January 31, 2017, plaintiff was removed from Staff Alert Status, after he

was observed to be following staff directions and procedures. ECF 24-19; ECF 24-20 at p. 4; ECF

24-2] at p. 1

? Thomas does not address whether the water was shut plaintiff's cell or if he had a history of flooding the tier.

On July 13, 2017, plaintiff met with Lt. Iser after family members called the Warden with

concerns about his welfare. ECF | at p. 23. According to Plaintiff, Iser said, “Off the record, yeah

you should have been provided a decontamination shower, according to official rules, and yeah

that cell is pretty rough but at NBCI there’s a policy on paper and then there’s the real life policy.”

Id. at pp. 24-25. Iser continued “We have a policy of making life a living hell for guys like you

who go against officers,” and family calls will not help because “we know how to cover ourselves

pretty good.” fd. at 25.

When plaintiff told Iser about Fann “falsely” stating that he had refused medical treatment

in the chronic care clinic, Iser replied “Yeah I imagine he did.” /d. Plaintiff then told Iser that he

had gone for weeks without his inhaler after arriving at NBCI. Iser said “Look, I know all about

your rough time but crying about it ain’t gonna help, you’re alive, be happy.” /d. Plaintiff is suing

Iser for punitive and compensatory damages under the Eighth Amendment, the Equal Protection □

Clause, the Maryland Bill of Rights, and “Departmental regulations” for authorizing, arranging,

and knowingly in his supervisory capacity allowing subordinates to violate his rights by inflicting

cruel and unusual punishment. fd.

Lt. Iser denies that he has harassed, threatened, conspired against or retaliated against

plaintiff and counters that he has no knowledge anyone under his supervision has done so. Iser

also denies interfering with or delaying medical or mental health care to plaintiff and has no

knowledge that anyone under his supervision has done so. Further, he denies that when he met

with plaintiff on July 13, 2017, or at any other time, they discussed whether or not he had received

a decontamination shower upon his transfer to NBCI on January 26, 2017, ECF 24-31.

Plaintiff is suing Commissioner Corcoran for punitive and compensatory damages for

violating his rights under the Eighth Amendment, the Maryland Bill of Rights, and “Departmental

11

regulations” by allowing, sanctioning, and approving NBCI employees” use of “draconian

measures” represented by his experience in the contingency cell. ECF | at 25. Additionally,

plaintiff asks to be transferred to a prison outside of Cumberland, Maryland to protect him against

reprisal and for an investigation of the contingency cells at NBCI. 1° Jd. at 26.

STANDARD OF REVIEW □

Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted

“if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (emphases added). “A dispute is

genuine if ‘a reasonable jury could return a verdict forthe nonmoving party.” Libertarian Party

of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am.,

673 F.3d 323, 330 (4th Cir. 2012)). “A fact is material if it ‘might affect the outcome of the suit

under the governing law.’” Jd. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). Accordingly, “the mere existence of some alleged factual dispute between the parties will

not defeat an otherwise properly supported motion for summary judgment[.]” Anderson, 477 U.S.

at 247-48, The court must view the evidence in the light most favorable to the nonmoving party,

Tolan v. Cotton, 134 8. Ct. 1861, 1866 (2014) (per curiam) (citation and quotation omitted), and

draw all reasonable inferences in that party’s favor, Scott v. Harris, 550 U.S. 372, 378 (2007)

(citations omitted); see also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568-69 (4th

Cir. 2015). At the same time, the court must “prevent factually unsupported claims and defenses

from proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th

Cir, 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)),

Plaintiff also asks for DPSCS supervisory medical staff to investigate NBCI’s medical staff and to educate them

on the proper protocols for delivery of medical care. ee at p. 26,

Plaintiff has filed a declaration stating his need to see the video footage to show he went

without a mattress, bed linens, a pillow or hygiene items during the time he was on staff alert

status. ECF 31-1. Plaintiff also asks for a copy of the Use of Force Manual, to depose defendants

as well as Samiyah Hassan, who verified the IGO records submitted by the State Defendants. ECF

31-1. As discussed below, even assuming plaintiff's claims he went without a mattress, a pillow,

or hygiene items for a five-day period while on staff alert status are true, the claim does not state

an Eighth Amendment violation. See, e.g., Lowery v. Bennett, 492 F. App'x 405, 407 (4th Cir.

2012) (ten-days on strip-cell confinement without “personal hygiene items, religious books,

mattress, bedding, towels, and clothing” not unconstitutional)

DISCUSSION

The defendants assert, among their arguments in support of their dispositive motion, lack

of exhaustion and qualified immunity.

L Exhaustion —

The defendants assert the affirmative defense that plaintiff has fatled to exhaust his

administrative remedies. Under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (2012):

No 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.

Td.

Notably, administrative exhaustion under § 1997e(a) is not a jurisdictional requirement and

does not impose a heightened pleading requirement on the prisoner. Rather, the failure to exhaust

administrative remedies is an affirmative defense to be pleaded and proven by the defendants. See

Jones v. Bock, 549 U.S. 199, 215~16 (2007); see also Anderson v. XYZ Correctional Health Servs.,

Inc., 407 F.3d 674, 682 (4th Cir. 2005). Nevertheless, a claim that has not been exhausted may

13 .

not be considered by this court. See Bock, 549 U.S. at 219-20. In other words, exhaustion is

mandatory. Ross v. Blake, 136 S.Ct. 1850, 1856-57 (2016). Therefore, a court ordinarily may not

excuse a failure to exhaust. Jd. (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining

“[t]he mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion”)).

A prisoner must follow the required procedural steps in order to exhaust his

administrative remedies. Moore v. Bennette, 517 F.3d 725, 729 (4th Cir. 2008), Exhaustion

requires completion of “the administrative review process in accordance with the applicable

procedural rules, including deadlines.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). This

requirement is one of “proper exhaustion of administrative remedies, which ‘means using all

steps that the agency holds out, and doing so properly (so that the agency addresses the issues on

the merits).”” Jd. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)

(emphasis in original)). But, the Court is “obligated to ensure that any defects in [administrative]

exhaustion were not procured from the action or inaction of prison officials.” Aquilar-

Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); see also Kaba v. Stepp, 458 F.3d

678, 684 (7th Cir, 2006). Notably, plaintiff does not allege in the complaint that the process was

unavailable to him."

In Maryland a prisoner must file an ARP with the warden within 30 days of the incident at

issue. Md. Code Regs. § 12.02.28.05(D)(1) (requiring filing with the “managing official”); Md.

Code Regs. § 12.02.28.02(B)(14) (defining “managing official” as “the warden or other individual

responsible for management of the correctional facility”); Md. Code Regs. § 12.02,28.09(B)

" Plaintiff did, however, claim in NBCI ARP-576-17 that he “strongly” feels his ARPs “are being thrown way,” but

identified no staff who were responsible. ECF 24-37 at p. 1. Between February 12, 2017 and April 26, 2017, plaintiff

filed nine ARP complaints. ECF 24-44, In 2017, he filed twenty-nine ARPs, thereby casting doubt on any suggestion

he was denied access to the ARP process or his ARPs were thrown away. Jd.

14

(setting the 30-day deadline). Second, ifthe ARP is denied, or the inmate does not receive a timely

response, a prisoner must file an appeal with the Commissioner of Correction within 30 days. Md.

Code Regs. § 12.02.28.14(B)(5). Ifthe appeal is denied, the prisoner must appeal within 30 days

to the Inmate Grievance Office (IGO). See Md. Code. Ann., Correctional Servs. §§ 10-206, 10-

210 (West 2002); Md. Code Regs. § 12.07.01.05(B). Inmates may seek judicial review of the

IGO’s final determinations in a Maryland Circuit Court. See Md. Code Ann., Corr. Servs. § 10-

210(a), The ARP process does not apply to case management decisions, which are’” to be directly

grieved to the IGO. Md. Code Regs. 12.02.28.04(B)(1}; 12.07.01.04(B)(9)(c).

While a prisoner may pursue the ARP process to allege that correctional officers used

excessive force, such ARPs may be procedurally dismissed if the IID has decided to investigate

the use of force incident at issue in the ARP. Md. Code Regs. 12.01.28.11(B)(1)(h). If this

procedurai dismissal indicates that no further action may be taken through the ARP process, a

prisoner ostensibly could file a grievance directly with the IGO, as there would be no further

administrative remedies available through the ARP process. Thus, in regard to ARP NBCI-0334-

17 in which plaintiff alleged he was assaulted by staff at WCI on January 26, 2017, and which

was procedurally dismissed because the matter had been referred to the IID, the court finds this

claim is not subject to dismissal for faifure to exhaust administrative remedies, ECF 24-1 p. 21

n.16; ECF 24-33.

"2 Plaintiff also filed ARP NBCI-533-17 in which he complained that he was not given his allowable property for

thirteen days after his transfer to NBCI on January 26, 2017. The IGO. decision noted that the Warden had already

found the complaint meritorious, he had been provided his property, and plaintiff was entitled to no further relief.

ECF 31-2 at p. 7.

13 See also ECF 24-37 at pp. 4~7.

15

Defendants argue that plaintiff filed three other ARPs relevant to this case, and of these

only one, IGO No. 20171434 (an appeal from ARP NBCI-1205-17), concerning the denial of a

mattress and pillow when he arrived at NBCI on January 26, 2017, was filed with the IGO. Decl.

of Samiyah Hassan, IGO Administrative Officer, ECF No. 24-38; ECF 24-33; see also ECF No. 31

at p. 22. The IGO dismissed the grievance on October 23, 2017, for failure to state a claim upon

which administrative relief can be granted. ECF No. 24-38.

On March 6, 2017, plaintiff filed ARP NBCI-462-17, asserting that Fann falsely reported

that he had refused to go to sick call and was not wearing his uniform so he could see his name.

Plaintiff was instructed to resubmit the ARP with additional information, but he failed to comply.

On March 15, 2017, the ARP was dismissed. On appeal, the IGO dismissed the grievance for

failure to follow the ARP coordinator’s instructions. ECF 24-36 at p. 4.

On March 15, 2017, plaintiff filed ARP NBCI-576-17, alleging he did not receive a shower

or his property for 13 days after his transfer from WCI to NBCI on January 26, 2017. The ARP

was procedurally dismissed at the institutional level on March 15, 2017, and dismissed on appeal

on April 7, 2017, as repetitive to ARP NBCI-333-17. ECF 24-33; ECF 24-37.

On February 9, 2017, plaintiff filed ARP NBCI-320-17, alleging that between January

26, 2017 and January 31, 2017, his food was either thrown on the floor or into the cell by different

correctional officers “as [if ] he was a dog,” and he was denied meals on January 26, 2017 (the

Warden’s response also states that plaintiff claims he was denied meals on January 27 and January.

31, 2017), ECF 24-34 at pp. 1-3. On March 19, 2017, the ARP was dismissed after investigation

found that plaintiff had refused to follow staff alert procedures for meals. Further, records and

surveillance footage showed that plaintiff had in fact received meals on January 27, 2017 and

January 31, 2017. Jd. at pp. 1, 3-16. Plaintiff appealed, and on August 21, 2017, Commissioner

. 16

Corcoran dismissed the ARP Appeal, stating that the ARP had been investigated and fully addressed

by the warden, and plaintiff provided no additional evidence to substantiate his claim. /d. at p. 18.

In light of the above, the court shall deem plaintiff's claims of excessive force and the

denial of a pillow and mattress when he arrived at NBCI on January 26, 2017, as exhausted. His

remaining claims, however, have not been fully presented through the administrative process.

However, even if the unexhausted claims had been exhausted, they would be unavailing for

reasons discussed below.

I. Qualified Immunity

“The doctrine of qualified immunity protects police officers and public officials from

claims of constitutional violations ‘for reasonable mistakes as to the legality of their actions.”

Merchant v. Bauer, 677 F.3d 656, 661 (4th Cir. 2012) (quoting Saucier v. Katz, 533 U.S. 194, 206

(2001)); see also Harlow y. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity

doctrine serves two important interests: “the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231

(2009). In the absence of any substantive argument applying the law to the record evidence,

defendants’ generally stated recitation of the law of qualified immunity is insufficient for this court

to determine whether the they are entitled to qualified immunity.

Il. Claims against Officers Ziler, Barb, Frazee, Donaldson, and Robey

A convicted inmate’s claim of use of excessive physical force is examined in the context

of the Eighth Amendment’s prohibition against cruel and. unusual punishment. See Whitley v.

Albers, 475 U.S. 312, 319-21 (1986); see also Wilkins v. Gaddy, 559 U.S. 34 (2010) (per curiam);

Hudson v. McMillian, 503 U.S. 1, 7-9 (1992). “In its prohibition of ‘cruel and unusual

17

punishments,’ the Eighth Amendment places restraints on prison officials, who may not, for

example, use excessive physical force against prisoners.” Farmer v. Brennan, 511 U.S. 825, 832

(1994); see also Makdessi y. Fields, 789 F.3d 126, 132 (4th Cir. 2015). The use of force by a

prison official violates an inmate’s Eighth Amendment rights when such force. is “inconsistent

with contemporary standards of decency,” Este/le v. Gamble, 429 U.S. 97, 103 (1976), or ts

“‘repugnant to the conscience of mankind.’” Wilkins, 559 U.S. at 38 (citation omitted).

Eighth Amendment analysis asks whether the prison officials “acted with a sufficiently

culpable state of mind (subjective component) and whether the deprivation suffered or injury

inflicted on the inmate was sufficiently serious (objective component).” Williams v. Benjamin, 77

F.3d 756, 761 (4th Cir. 1996).

The question of use of excessive force turns on the totality of the circumstances. See

Tennessee vy. Garner, 471 U.S. 1, 8-9 (1985). The use of force must be considered “in full context.”

Smith v. Ray, 781 F.3d 95, 101 (4th Cir. 2015) (citation omitted). Notably, “not ‘every malevolent

touch by a prison guard gives rise to a federal cause of action” under the Eighth Amendment,

Wilkins, 559 U.S. at 37 (citation omitted). The absence of “significant” injury.is not dispositive

ofa claim of excessive force. /d. at 36-37. If force is applied maliciously and sadistically, liability

is not avoided “merely because [the plaintiff] has the good fortune to escape without serious

injury.” Jd. at 38. In other words, there is no “de minimis” level of injury that is an acceptable

result of excessive force under the Eighth Amendment. /d. at 38--40. But, the extent ofan inmate’s

injury is one factor indicative of whether the force used was necessary in a particular situation. In

Wilkins, the Supreme Court stated: “This is not to say the ‘absence of serious injury’ is irrelevant

to the Eighth Amendment inquiry.” Jd. at 37 (quoting Hudson, 503 U.S. at 7). Thus, a court must

look at “the nature of the force rather than the extent of the injury. ” /d. at 34.

18 .

Prison officials are charged with balancing competing governmental interests. These

include the maintenance of order; protection of correctional officers, prison staff and other

inmates; and inmates’ rights to be free from cruel and unusual punishment. See Whitley, 475 U.S.

at 320. When force is needed to keep order, correctional officers may have little time for

considered reflection and must quickly and decisively balance the need to maintain order and

restore discipline through force against the risk of injury to inmates. See Hudson, 503 U.S. at 6;

see also Smith v. Ray, 781 F.3d at 101 (analyzing an excessive force claim under the Fourth

Amendment and stating: “In considering the reasonableness of an officer’s actions, we must

consider the facts at the moment that the challenged force was employed.”); Henry v. Purnell, 652

F.3d 524, 531 (4th Cir. 2011) (en banc). Thus, in excessive force cases, the subjective component

is measured by the same standard as the objective: “whether force was applied in a good faith

effort to maintain or restore discipline or maliciously and sadistically to cause harm.” Hudson, 503

U.S. at 6 (citations omitted).

Where pepper spray is used by prison staff, “[i]t is generally recognized that it is a violation

of the Eighth Amendment for prison officials to use mace, tear gas or other chemical agents in

quantities greater than necessary or for the sole purpose of infliction of pain.” Iko v. Shreve, 535

F.3d 225, 240 (4th Cir. 2008) (quoting Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996))

(emphasis omitted). It may be used in order to control recalcitrant inmates. Williams, 77 F.3d at

763. As noted, Bryant-El-pled guilty to assaulting staff, but the court does not have enough

undisputed evidence to determine whether the use of pepper spray was excessive in regard to the

specific facts of the assault. The inquiry focuses, as with all other excessive force claims, on

whether the defendant acted with a sufficiently culpable state of mind. Ike, 535 F.3d at 238.

19

Defendants filed two DVD’? recordings of the January 26, 2017 incident. ECF 24-6; ECF

24-7. On December 21, 2018, plaintiff viewed the video recordings of the incident, Decl. of C.0

Il Benjamin Bradley, ECF 27-1, and references it in his Opposition. ECF 31 at pp. 5, 7. The court

has viewed the DVD recordings, which show views from the tier and the recreation room, and

finds the information provided is insufficient to grant the defendants’ Motion for Summary □

Judgment as to the excessive force claim. The video shows a gathering of inmates inside the

recreation room, several of whom are gathered around plaintiff, who is holding a paper in his hand.

ECF 24-7. Twice officers are seen inspecting a trash can near the doorway of the room, which

suggests they may have been looking for the tobacco as plaintiff alleges. The video does not show

an officer pointing a can of pepper spray directly at plaintiff while another officer pulled the trash

bag from the can in the recreation room, as plaintiff asserts. Several officers enter the room and

appear to have a short dialogue with plaintiff. Plaintiff, who ts not handcuffed, follows them out

of view of the camera. Moments later, plaintiff runs back into the recreation room, removes his

shirt, which is now stained orange, and wipes his face. /d. Plaintiffis not restrained. The recording

then shows Plaintiff moving about the recreation room on his own accord after the pepper spray

exposure. Plaintiff's movements do not suggest he was having difficulty seeing, walking, or

breathing. No pepper spray can be discerned on his scalp or face. Another recording taken from

the tier view shows an officer fall to the ground. Afterwards, the recording shows plaintiff, who

walked on his own accord, being escorted away. /d.

Plaintiff asserts he was handcuffed at the time of the incident, which is belied by

the DVD. The DVD, however, provides little useful information on the issue of excessive force

because the actual use of force incident was not in view of the cameras. Fitzgerald’s declaration

15 There is no sound on the recording. 50

supports plaintiff's allegations that the officers threatened “to light him up” and that Ziler lunged

at plaintiff, who “appeared to fall away to avoid being hit.” ECF 1-1 at p. 2. Further, Fitzgerald

states he saw plaintiff “being continuously sprayed” by three correctional officers even though

Fitzgerald “never saw [plaintiff] attack or even try to hit anyone,” although Fitzgerald does not

name the correctional officers. fd, Barb and Robey admit to using pepper spray in their sworn

declarations. ECF 24-9 4; ECF 24-13 44.

In regard to Robey, Barb, and Ziler, each side presents fundamentally different versions of

the incident, and the court may not resolve factual disputes in the context of a surmmary judgment

motion. As stated earlier, the district court’s “function” is not “to weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine issue for trial.” □

Anderson, 477 U.S. at 249. Moreover, the trial court may not make credibility determinations on

summary judgment. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015);

Mercantile Peninsula Bank v. French (in re French), 499 F.3d 345, 352 (4th Cir. 2007); Black &

Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006). In the face of conflicting

material evidence, such as competing affidavits, summary judgment is‘generally not appropriate,

because it is the function of the factfinder to resolve factual disputes, including matters of witness

credibility. In regard to Donaldson and Frazee, however, plaintiff provides no verified evidence

that they used force against him.

Accordingly, the court wili deny the Motion for Summary Judgment as to plaintiffs claims

of excessive force against Robey, Barb, and Ziler, and grant the Motion for Summary Judgment

as to plaintiff's claims of excessive force against Donaldson and Frazee.

2]

_ IV. Claims Against Fann

The Eighth Amendment prohibits “unnecessary and wanton infliction of pain” by virtue of

its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173 (1976);

see also Estelle v. Gamble, 429 U.S, 97, 103 (1976); King v. Rubenstein, 825 F.3d 206, 219 (4th

Cir, 2016); Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016). In an Eighth Amendment suit

alleging denial of adequate medical care, a plaintiff must show the defendant’s actions or inaction

amounted to deliberate indifference to a plaintiff’s serious medical need. See Estelle, 429 U.S. at

106; Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). Deliberate indifference to a serious

medical need requires proof that, objectively, the plaintiff was suffering from a serious medical

need and that, subjectively, the defendant was aware of the need for medical attention but failed

either to provide it or to ensure that the needed care was available. See Farmer v. Brennan, 511

U.S. 825, 837 (1984). The subjective component examines whether the defendant acted with

reckless disregard in the face of a serious medical condition, i.¢., with “a sufficiently culpable state

of mind.” Wilson y. Seiter, 501 U.S. 294, 298 (1991). To establish an Eighth Amendment claim

for deliberate indifference to an inmate’s serious medical need, an inmate must to show that the

correctional official (1) failed promptly to provide needed medical care; (2) “deliberately

interfered with the prison doctors' performance”; or (3) “tacitly authorized or were indifferent to

the prison physicians' constitutional violations.” Miltier v. Beorn, 896 F.2d 848, 854 (1990),

overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 836 (1994).

Here, Fann denies in his declaration that he refused to escort plaintiff to the chronic care

clinic, tried to conceal his name, interfered with or delayed his medical care, or acted against

plaintiff with unlawfully retaliatory animus. ECF 24-25. Further, plaintiff does not allege that he

asked Fann or any other staff member for a decontamination shower. Plaintiff offers no declaration

22

or similar evidence to dispute Fann’s assertion that he was unaware plaintiff needed medical

attention. Accordingly, the court will grant summary judgment in favor of Fann.

V. Claims Against Sergeant Thomas

Plaintiff’ s claims against Thomas concer his conditions of confinement in staff alert status

and Thomas’s alleged interference with plaintiff's access to sick call procedures. The record

evidence establishes that plaintiff was placed on Staff Alert status between January 26 and January

31, 2017,

“Since ‘routine discomfort’ is part of prison life and ‘society does not expect that prisoners

will have unqualified access to health care,’ in order to demonstrate the objective component of

conditions-of-confinement or medical care claims prisoners must demonstrate ‘extreme’

deprivations or neglect of ‘serious’ medical needs.” Williams v. Benjamin, 77 F.3d 756, 761 (4th

Cir. 1996) (quoting Hudson v. McMillian, 503 U.S. 1, 8-9 (1992)). “Only extreme deprivations

are adequate to satisfy the objective component of an Bighth Amendment claim regarding

conditions of confinement.” De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003).

Demonstration of an extreme deprivation proscribed by the Eighth Amendment requires proof of

“a serious or significant physical or emotional injury resulting from the challenged conditions.”

See Odom v. S.C. Dep’t of Corr., 349 F.3d 765, 770 (4th Cir. 2003) (quoting De ‘Lonta, 330 F.3d

at 634).

Plaintiff has failed to demonstrate the extreme deprivations required. See, e.g., Porter v.

Clarke, 923 F.3d 348 (4th Cir. 2019) (“The challenged conditions of confinement on Virginia’s

death row—under which Plaintiffs spent, for years, between 23 and 24 hours a day ‘alone, in a

small ... cell’ with ‘no access to congregate religious, educational, or social programming’—pose

‘substantial risk’ of serious psychological and emotional harm.”) (citation omitted); Scinto v.

23

Stansberry, 841 F, 3d 219 (4th Cir. 2016) (genuine issue of material fact whether denial of insulin

to diabetic prisoner was an “extreme deprivation’ resulting in ‘a serious or significant physical or

emotional injury’”) (citation omitted). Here, plaintiff was placed on a temporary staff alert status

where the conditions, while uncomfortable, do not approach the extreme deprivations required to

support an Eighth Amendment claim, given that courts have found similar or more extreme

deprivations to be constitutional. See, e.g, Lowery, 492 F. App'x at 407; Beverati v. Smith, 120

F.3d 500, 504 (4th Cir. 1997) (rejecting Fourteenth Amendment challenge brought by inmates

placed in administrative segregation for six months who experienced extreme temperatures, in

addition to unsanitary cells and limited portions of food); Williams v. Delo, 49 F.3d 442, 444-45

(8th Cir. 1995) (four days without clothes, mattress, water, bedding, legal mail or hygienic supplies

not a violation of Eighth Amendment). Thus, assuming plaintiff's description of the cell is true,

plaintiff's exposure to those conditions does not support a constitutional claim against Thomas.

Further, even if the conditions were extreme, plaintiff also fails to produce evidence of a serious

or significant physical or emotional injury resulting from the challenged temporary conditions.

Lastly, plaintiff alleges Thomas violated his rights under the Equal Protection Clause. The

Equal Protection Clause is “essentially a direction that all persons similarly situated should be

treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (citation

omitted). The key to an equal protection claim requires a showing “that similarly situated classes

of inmates are treated differently, and that this difference in treatment bears no rational relation

to any legitimate penal interest.” Weiler v. Purkett, 137 F.3d 1047, 1051-52 (8th Cir. 1998).

Accordingly, “while a prisoner does not forfeit his constitutional right to equal protection by the

fact he has been convicted of a crime and imprisoned, prisoner claims under the equal protection

clause... must still be analyzed in light of the special security and management concerns in the

24

prison system.” Morrison v. Garraghty, 239 F.3d 648, 655 (4th Cir. 2001) (citing Jones v. N.C.

Prisoners’ Labor Union, Inc., 433 U.S. 119, 136 (1977)) (“There is nothing in the Constitution

which requires prison officials to treat all inmate groups alike where differentiation is necessary

to avoid an imminent threat of institutional disruption or violence.”). Plaintiff does not allege or

suggest facts to show that he has been treated differently from others similarly situated to him for

an unlawful reason. For these reasons, summary judgment will be granted as to the claims against

Thomas.

VI. Claims Against Lieutenant Iser

Plaintiff claims Iser authorized, arranged, and knowingly allowed subordinates to violate

his rights by inflicting cruel and unusual punishment and that Iser violated his right to equal

protection.'” Iser disputes these assertions and denies any knowledge of or involvement in

unconstitutional conduct directed at plaintiff. Plaintiff fails to dispute Iser’s declaration with any

sworn document. In the absence of a genuine dispute of material fact, the court will grant summary

judgment in favor. of Iser.

VU. Claims Against Dayena Corcoran

Plaintiff alleges Corcoran is liable because she allowed, sanctioned, and approved NBCI

employees’ use of “draconian measures” represented by his experience in the “contingency cell.”

ECF 1 at p. 25. For liability to exist under 42 U.S.C. § 1983, a defendant must be personally

involved in the alleged violation. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977); Shaw vy.

Stroud, 13 F.3d 791, 799 (4th Cir. 1994), Plaintiff does not allege Corcoran was involved in or

A prisoner’s rights under the Constitution must not be inconsistent with his or her status as a prisoner. See Hudson

v. Palmer, 468 U.S. 517, 523 (1984). Even when strict scrutiny would otherwise be applicable to a given policy,

because of the exigencies of prison administration, regulations must only be reasonably related to a legitimate

penclogical interest. See Thornburgh v. Abbott, 490 U.S. 401, 409-10 (1989), ,

Plaintiff again provides no factual basis for his equal protection claim against Iser.

25

had knowledge of his assignment to staff alert status or the conditions of his cell. Instead, he

appears to claim Corcoran is culpable on the basis of her status as a supervisor, or on a theory of

respondeat superior. However, it is well established that the doctrine of respondeat superior does

-not apply in § 1983 claims. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no

respondeat superior liability under § 1983)

Supervisory liability for the unconstitutional acts of employees may attach under § 1983 if

a plaintiff can establish three elements: (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 citizens like the plaintiff, (2) 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) “an ‘affirmative causal link’ between the supervisor’s inaction and

the particular constitutional injury suffered by the plaintiff” Shaw, 13 F.3d at 799 (citations

omitted). Plaintiffs broad and conclusory allegations are insufficient to find Corcoran culpable

based on supervisory liability. Accordingly, the court will grant summary judgment in favor of

Corcoran.

CONCLUSION

For these reasons, the court will by separate order, grant in part and deny in part defendants’

Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. ECF 24. The court will

grant the Motion for Summary Judgment as to defendants Corcoran, Fann, Iser, Thomas, 18 Frazee,

and Donaldson, and deny the Motion for Summary Judgment as to defendants Ziler, Robey, and

18 Ttis unclear what state laws or departmental regulations plaintiff is asserting that Corcoran, Fann, Thomas, and Iser

have violated. To the extent plaintiff may state claims against Corcoran, Fann, Iser, or Thomas premised on Maryland

law and departmental regulation, the court declines to exercise supplemental jurisdiction over such claims and

dismisses them without prejudice. 36

Barb. The court will grant plaintiffs Motion for Appointment of Counsel. ECF 35. The Motion

to Present Additional Evidence (ECF 36) will be denied as moot. A separate order follows.

é

ql CAE

Date Catherine C. Blake

United States District Judge

27