The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
RAYMOND JONES
:
v. : Civil Action No. DKC 19-1335
:
STATE OF MARYLAND, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this prisoner
rights case are the motions to dismiss or in the alternative for
summary judgment filed by Defendants the State of Maryland and
Denise Gelsinger, (ECF No. 10), and by Defendant Nathanial Fisher,
(ECF No. 24). The issues have been briefed, and the court now
rules, no hearing being deemed necessary. Local Rule 105.6. For
the following reasons, Defendants’ motions will be granted.
I. Background
Raymond Jones (“Jones”) is a Maryland Correctional Training
Center inmate.1 On March 8, 2016, during a transfer from Jessup
Correctional Institution (“JCI”) to Maryland Correctional
Institution-Hagerstown (“MCI-H”), Jones’s transportation van
collided with another vehicle. Defendant Shane Householder
(“Defendant Householder”) was the driver of Jones’s transportation
1 Unless otherwise noted, the facts outlined here are
undisputed and construed in the light most favorable to Jones.
van and Defendant Nathanial Fisher (“Defendant Fisher”) was a
passenger. Both Defendants Fisher and Householder are
correctional officers. Defendant Householder “attempted to drive
in front of another vehicle and caused a collision with the other
vehicle.” (ECF No. 2, ¶ 18). Jones was handcuffed and was not
wearing a seatbelt or otherwise securely fastened in the
transportation van. “The force from the collision[] caused [Jones]
to be forcibl[y] thrown against the front seat and protective wire
grate resulting in [Jones] being knocked to the floor of the
transportation vehicle.” (Id., ¶ 19). Jones “was evaluated at
Brockbridge Correctional Facility[]” (“BCF”). (Id., ¶ 20). Jones
“suffered injuries to his back, shoulders, and knee.” (Id., ¶ 21).
On March 3, 2017, Jones “sent notice of [his] claim to [the]
Maryland State Treasurer via certified mail, return receipt
requested[.]” (ECF No. 2, ¶ 9). On March 8, 2019, Jones,
represented by counsel, filed a complaint in the Circuit Court for
Baltimore City, Maryland against Defendants Fisher and
Householder, as well as the State of Maryland, Stephen T. Moyer,
J. Michael Stouffer, Denise Gelsinger, Allen Gang, and other
unidentified officers.2 (ECF No. 1-1; ECF No. 2). According to
the complaint, Stephen T. Moyer (“Defendant Moyer”) was the
2 The notice of removal, (ECF No. 1), attached the state court
complaint, (ECF No. 1-1). Jones also filed the state court
complaint. (ECF No. 2). The court will refer to ECF No. 2 because
ECF No. 1-1 appears to lack the first page of the caption.
Secretary of the Department of Public Safety and Correctional
Services, J. Michael Stouffer (“Defendant Stouffer”) was the
Commissioner of the Division of Corrections, Denise Gelsinger
(“Defendant Gelsinger”) was the Warden of MCI-H, and Allen Gang
(“Defendant Gang”) was the Warden of JCI.3 (ECF No. 2, at 1–5
¶¶ 3–7). Jones’s complaint asserts two claims: (1) negligence and
(2) 42 U.S.C. § 1983. (Id., at 6–9).
On May 7, 2019, the State of Maryland and Defendant Gelsinger
filed a notice of removal and removed the case to the United States
District Court for the District of Maryland. (ECF No. 1). On
June 11, 2019, the State of Maryland and Defendant Gelsinger filed
the presently pending motion to dismiss. (ECF No. 10). Jones
responded, (ECF Nos. 13; 14), and Defendants replied, (ECF No.
21).
On August 27, 2019, Defendant Fisher filed the presently
pending motion to dismiss. (ECF No. 24). On September 14, 2019,
Jones responded. (ECF No. 25).
3 On November 6, 2019, the court issued an order noting that
Defendants Gang, Householder, Moyer, and Stouffer had not been
served and granting Jones 60 days to serve them. (ECF No. 26).
On January 5, 2020, Jones filed a motion requesting an extension
of time to serve Defendants Gang, Householder, Moyer, and Stouffer.
(ECF No. 29). On January 6, 2020, the court issued a paperless
order granting Jones’s motion and allowing Jones until January 27,
2019 to effectuate service on the remaining defendants. (ECF No.
30).
The motion to dismiss filed by Defendant Fisher raises the
same arguments as the motion to dismiss filed by the State of
Maryland and Defendant Gelsinger, with slight variations that
reflect the different employment positions of Defendants Gelsinger
and Fisher. The court will address the arguments together and
note the differences as necessary.
II. Analysis
Defendants assert several grounds for dismissal or summary
judgment including: (1) public official and qualified immunity;
(2) failure to state a claim under § 1983; and (3) failure to
exhaust administrative remedies. (ECF No. 10-1, at 2; ECF No. 24-
1, at 2).
A. Section 1983
1. The State of Maryland
Defendants seek dismissal for failure to state a claim because
the State of Maryland is not a “person” under § 1983. (ECF No.
10-1, at 14). Jones concedes this point. (ECF No. 13, at 12).
Accordingly, the § 1983 claim will be dismissed.
2. Other Defendants
Under § 1983, a plaintiff may file suit against any “person
who, under color of [law] subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws[.]” To state
a claim, a plaintiff must allege that: (1) a right secured by the
Constitution or laws of the United States was violated and (2) the
alleged violation was committed by a person acting under the color
of state law. West v. Atkins, 487 U.S. 42, 48 (1988). “Section
1983 ‘is not itself a source of substantive rights,’ but merely
provides ‘a method for vindicating federal rights elsewhere
conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994)(quoting
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
Jones contends that Defendants acted under color of law and
deprived him of “clearly established rights under the Eighth and
Fourteenth Amendments [to] the United States Constitution,”
including “the right to be free from the use of excessive and
unreasonable force and seizure; the right to be free from the
deprivation of life and liberty without due process of law; the
right to be free from cruel and unusual punishment; and the right
to be free from deliberate indifference to the back, neck[,] and
knee pain.” (ECF No. 2, ¶¶ 37–38). Defendants contend that Jones
fails to state a claim under § 1983 because he alleges no personal
action or involvement by Defendant Gelsinger and only specifically
references Defendant Gelsinger “in the section of the complaint
introducing the parties and stating their positions and
responsibilities[.]” (ECF No. 10-1, at 11–12; ECF No. 21, at 1–
3). They assert that Jones “alleges no facts that would support
a plausible theory of supervisory liability against [Defendant]
Gelsinger.” (ECF No. 21, at 1). Defendants contend that Jones
fails to state a claim against Defendant Fisher because he alleges
no personal action or involvement by Defendant Fisher and “only
specifically mention[s] [Defendant Fisher]. . . as being a
passenger in the vehicle[.]” (ECF No. 24-1, at 11–12). Defendants
also contend they are entitled to qualified immunity. (ECF No.
10-1, at 12–13; ECF No. 21, at 1–3; ECF No. 24-1, at 12–13).
A motion to dismiss under Rule 12(b)(6) tests the sufficiency
of the complaint. Presley v. City of Charlottesville, 464 F.3d
480, 483 (4th Cir. 2006). In evaluating the complaint, unsupported
legal allegations need not be accepted. Revene v. Charles Cty.
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions
couched as factual allegations are insufficient, Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), as are conclusory factual
allegations devoid of any reference to actual events. United Black
Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir.
1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009). “[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint
has alleged - but it has not ‘show[n]’ – ‘that the pleader is
entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P.
8(a)(2)). Thus, “[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id.
a. Gelsinger
The doctrine of respondeat superior does not apply in § 1983
claims. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir.
2004). Supervisory liability under § 1983 must be supported with
evidence that: (1) the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct that posed
a pervasive and unreasonable risk of constitutional injury to
citizens like the plaintiff; (2) the supervisor’s response to the
knowledge was so inadequate as to show deliberate indifference or
tacit authorization of the alleged offensive practices; and (3)
there was an affirmative causal link between the supervisor’s
inaction and the particular constitutional injury suffered by the
plaintiff. See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
Jones alleges that Defendant Gelsinger was “responsible for
the operation and implementation of the policies pertinent to the
Maryland Division of Public Safety and Correctional Services”
(“DPSCS”). (ECF No. 2, ¶ 5). He also alleges that Defendant
Gelsinger was “responsible for promulgating and implementing and
following policies and procedures.” (Id.). Jones does not allege
that the policies and procedures were deficient. In fact, he
alleges that Defendants Fisher and Householder “failed to follow
policies and procedures to assure [his] care and safekeeping and
protection[.]” (Id., ¶¶ 6–7). In other words, Jones alleges that
Defendants Fisher and Householder disregarded Defendant
Gelsinger’s policies. Jones subsequently argues that “Defendant
Gelsinger had an affirmative duty to take action in supervising
her correctional officers[]” and “a duty to ensure that they
followed proper protocol[.]” (ECF No. 13, at 7). Jones argues
that Defendant Gelsinger failed to supervise and train her
subordinates. (Id.). These conclusory allegations are
insufficient to state a claim against Defendant Gelsinger. Jones
fails completely to allege any personal involvement by Defendant
Gelsinger. The § 1983 claim will be dismissed as to Defendant
Gelsinger.
These pleading deficiencies extend to the other supervisory
defendants: Defendants Moyer, Stouffer, and Gang. Jones alleges
that Defendant Moyers and Stouffer were responsible for developing
and implementing policies and for hiring, training, and
supervising staff. (ECF No. 2, ¶¶ 3–4). Jones does not mention
Defendant Gang at all in the complaint, other than to list him in
the caption as a defendant. Given these deficiencies, and despite
the existing service issues, the § 1983 claim will be dismissed as
to Defendants Moyer, Stouffer, and Gang.
b. Fisher
Defendant Fisher argues that he is entitled to qualified
immunity. (ECF No. 24-1, at 11–13). “Qualified immunity is ‘an
immunity from suit rather than a mere defense to liability.’”
Pearson v. Callahan, 555 U.S. 223, 237 (2009). Qualified immunity
analysis involves two questions: (1) whether a constitutional
violation occurred and (2) whether the right violated was clearly
established. See Pearson, 555 at 236; Saucier v. Katz, 533 U.S.
194, 200 (2001). District courts “may consider either prong of
the qualified immunity inquiry first[.]” Sims v. Labowitz, 885
F.3d. 254, 260 (4th Cir. 2018). The burden is on the plaintiff to
prove that a constitutional violation occurred. However, the
defendant must prove that the right was not clearly established at
the time in question. Henry v. Purnell, 501 F.3d 374, 377–78 (4th
Cir. 2007).
Jones alleges an Eighth Amendment violation. (ECF No. 2,
¶ 38). The Fourth Circuit recently outlined the framework for the
merits prong of the qualified immunity analysis under the Eighth
Amendment in a failure to seatbelt case. Thompson v. Commonwealth
of Va., 878 F.3d 89, 105-06 (4th Cir. 2017).
The Eighth Amendment protects prisoners from
“unnecessary and wanton infliction of pain.”
That protection imposes on prison officials an
affirmative “obligation to take reasonable
measures to guarantee the safety. . . of
inmates.” However, not all Eighth Amendment
violations are the same: some constitute
“deliberate indifference,” while others
constitute “excessive force.”
The deliberate indifference standard
generally applies to cases alleging failures
to safeguard the inmate’s health and safety,
including failing to protect inmates from
attack, maintaining inhumane conditions of
confinement, or failing to render medical
assistance. The deliberate indifference
standard is a two-pronged test: (1) the
prisoner must be exposed to a “substantial
risk of serious harm,” and (2) the prison
official must know of and disregard that
substantial risk to the inmate’s health or
safety. In excessive force cases, on the
other hand, courts must determine “whether
force was applied in a good-faith effort to
maintain or restore discipline, or maliciously
and sadistically to cause harm.”
To [evaluate properly] a prisoner’s
Eighth Amendment claim, courts ordinarily must
choose which standard to apply as to each
defendant.
Thompson, 878 F.3d at 97–98 (internal citations omitted). In
Thompson, excessive force was the correct standard to apply to the
driver and deliberate indifference was the correct standard to
apply to the passenger. Id. at 99, 107. Thompson also recognizes
that “courts have not found a constitutional violation in some
failure-to-fasten-seatbelt cases” when those cases “with one
exception. . . involved mere negligence, rather than malice or
even recklessness.” Id. at 105–06; see also Scott v. Becher, 736
F.App’x 130, 134 (6th Cir. 2018) (noting that “failure-to-seatbelt
cases ‘involved mere negligence’” and did not rise to an Eighth
Amendment violation); Vinson v. U.S. Marshals Serv., No. 10-79-
RMG-PJG, 2011 WL 3903057, at *10 (D.S.C. July 29, 2011) (noting
that “numerous cases suggest that the failure to seatbelt prisoners
alone does not rise to the level of a constitutional violation[]”
and collecting cases).
Critically, Jones only alleges that Defendant Householder
“negligently attempted to drive in front of another vehicle.” (ECF
No. 2, ¶ 18). He does not allege “malice or even recklessness.”
Thompson, at 105. Similarly, Jones only alleges that Defendant
Fisher “was a passenger” and “knew or should have known that he
was not properly secured[.]” (ECF No. 2, ¶¶ 17, 24). He does not
allege that he requested to be seatbelted, that Defendants refused
any such request, or that Defendants drove recklessly or
intentionally to cause harm. This case is distinguishable from
Thompson, where the correctional officers refused to buckle the
prisoner’s seatbelt, ignored his pleas for help, and where the
officer driving drove dangerously and the officer in the passenger
seat failed to intervene to stop the dangerous driving. 878 F.3d
at 107. Jones fails to allege the violation of a clearly
established Eighth Amendment right and Defendant Fisher is
entitled to qualified immunity.4 In light of the foregoing, the
court need not address Defendants’ arguments that Jones failed to
exhaust his administrative remedies under the Prison Litigation
4 It is unlikely that Jones has stated a claim against the
driver, Defendant Householder, under the deliberate indifference
standard, let alone the excessive force standard, but the issue
will not be addressed until/unless he is served.
Reform Act (“PLRA”).5 (ECF No. 10-1, at 5–9; ECF No. 21, at 5-8;
ECF No. 24-1, at 5–9).
B. Negligence
Jones’s complaint also raises a negligence claim. (ECF No.
2, at 6-8). Defendants Fisher and Gelsinger contend that Jones
failed to comply with Maryland’s Prisoner Litigation Act (“PLA”),
Md. Code Ann., Courts and Judicial Proceedings § 5-1001 et seq.,
because he did not “exhaust all available administrative remedies
prior to filing a state law action challenging his conditions of
confinement.” (ECF No. 10-1, at 5-9; ECF No. 21, at 5-8; ECF No.
24-1, at 5-9).
Although the Maryland General Assembly enacted the PLA to
complement the federal PLRA, the PLA is “more onerous” than the
PLRA. Harris v. McKenzie, 241 Md.App. 672, 679-682 (2019). The
PLA provides that “[a] prisoner may not maintain a civil action
until the prisoner has fully exhausted all administrative
remedies” and requires the prisoner to “attach to the initial
complaint proof that administrative remedies have been exhausted.”
Md. Code Ann., Courts and Judicial Proceedings, § 5-1003. Failure
to attach the requisite proof mandates dismissal:
On receipt of a prisoner’s initial complaint
that does not have attached to it proof that
the prisoner has fully exhausted the
administrative remedies available, the court
5 Failure to exhaust is an affirmative defense. Custis v.
Davis, 851 F.3d 358, 361 (4th Cir. 2017).
shall dismiss the case without prejudice and
grant the prisoner reasonable leave to amend
the complaint and to provide the proof
necessary to demonstrate that the prisoner has
fully exhausted the administrative remedies.
Id., § 5-1003(b)(3). Moreover, “[a] court shall dismiss a civil
action if the prisoner filing the action has not completely
exhausted the administrative remedies.” Id., § 5-1003(c). Here,
Jones failed to attach proof that administrative remedies have
been exhausted and dismissal of the negligence claim is
appropriate. Id., § 5-1003(b)(3); see also Harris, 241 Md.App. at
681 (noting that an inmate’s “failure to complete the judicial
review process to exhaust his administrative remedies and to
provide the circuit court with proof of exhaustion of his
administrative remedies with the filing of his complaint renders
the circuit court’s dismissal of his complaint legally correct”);
Germain v. Bishop, No. 17-1289-TDC, 2018 WL 4518019, at *4 (D.Md.
Sept. 19, 2018) (“Failure to provide [proof that administrative
remedies have been exhausted] is grounds for dismissal.”).
Moreover, the material attached to his opposition does not indicate
that he has exhausted administrative remedies.
Even if Jones had fully exhausted all administrative remedies
and attached proof of such exhaustion to his complaint, Defendants
Fisher and Gelsinger are immune from suit. Defendants Fisher and
Gelsinger contend that they are “immune from suit and from
liability for any tortious act or omission that is within the scope
of [their] public duties and is made without malice or gross
negligence.” (ECF No. 10-1, at 9-10; ECF No. 21, at 4–5; ECF No.
24-1, at 9–10). Jones concedes that he must allege malice or gross
negligence and asserts that both Defendants Fisher and Gelsinger
acted maliciously. (ECF No. 13, at 6–7; ECF No. 25, at 6–7).
Under the Maryland Torts Claim Act (“MTCA”), see Md. Code
Ann., State Gov’t § 12-101 et seq., “the immunity of the State and
of its units is waived as to a tort action,” subject to the MTCA’s
exclusions and limitations. State Gov’t § 12-104(a). A notable
exclusion exists: “State personnel. . . are immune from suit in
courts of the State and from liability in tort for a tortious act
or omission that is within the scope of the public duties of the
State personnel and is made without malice or gross negligence[.]”
Md. Code Ann., Courts and Judicial Proceedings, § 5-522(b). In
this context, malice requires an act committed with “an evil or
rancorous motive influenced by hate, the purpose being to [injure
deliberately] the plaintiff.” Green v. Brooks, 125 Md. App. 349,
377 (internal quotation marks omitted). Gross negligence requires
“an intentional failure to perform a manifest duty in reckless
disregard of the consequences[.]” Barbre v. Pope, 402 Md. 157,
187 (2007) (internal quotation marks omitted). Jones alleges no
personal action by Defendant Gelsinger, and little personal action
by Defendant Fisher. Critically, there are no allegations of
malicious or grossly negligent conduct. The negligence claim will
be dismissed. In light of the foregoing, the court need not
address Defendants’ arguments that they are “entitled to public
official immunity under Maryland law.”6 (ECF No. 10-1, at 11; ECF
No. 24-1, at 11).
III. Conclusion
For the foregoing reasons, the motions to dismiss filed by
Defendants the State of Maryland and Denise Gelsinger, (ECF No.
10), and by Defendant Nathanial Fisher, (ECF No. 24), will be
granted. A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
6 Public official immunity is an affirmative defense. Walker
v. Bishop, No., 2018 WL 1920585, at *12 (D.Md. Apr. 24, 2018)
(citing Cooper v. Rodriguez, 443 Md. 680, 713 (2015).