Mitchell v. Crites

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

WAYNE A. MITCHELL, *

Plaintiff, *

v. * Civil Action No. GLR-20-3091

LT. JEREMY CRITES,1 *

Defendant. *

***

MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant Lieutenant Jeremy Crites’ Motion

to Dismiss Plaintiff’s Complaint or, Alternatively, for Summary Judgment (ECF No. 15).2

The Motion is ripe for disposition and no hearing is necessary. See Local Rule 105.6

(D.Md. 2021). For the reasons discussed below, the Court will grant the Motion.

I. BACKGROUND

A. Factual Background

On Wednesday, March 18, 2020, the administration at North Branch Correctional

Institution (“NBCI”) authorized a mass search of Housing Unit No. 1 in response to staff

and inmate complaints about an increase in smoke on the tiers. (Crites Decl. ¶ 5, ECF 15-

4; Bradley Decl. Attachs. at 3–5,3 ECF No. 15-5). The search included Cell No. 2 of

1 The Clerk shall add Defendant’s first name to the docket.

2 Also pending before the Court is Plaintiff Wayne A. Mitchell’s Motion to Dismiss

Defendant’s Motion for Summary Judgment (ECF No. 18), which the Court construes as

an Opposition. Because the Court will grant Crites’ dispositive Motion, Mitchell’s Motion

will be denied as moot.

3 Citations to page numbers refer to the pagination assigned by the Court’s Case

Management/Electronic Case Files (“CM/ECF”) system.

Housing Unit No. 1, which was then occupied by Mitchell and his cellmate. (Crites Decl.

¶ 6).

Mitchell claims that Crites “negligently” authorized the mass cell search with the

intention of finding contraband. (Compl. at 3, ECF No. 1). Mitchell contends the search

was needless and performed recklessly in light of the risks posed by the coronavirus disease

2019 (“COVID-19”) pandemic and violated his Eighth and Fourteenth Amendment rights.

(Id.). He claims that Crites violated his right to adequate medical care because he was not

provided personal protective equipment (“PPE”), such as a mask and face shield, during

the search. (Id. at 4).

Mitchell alleges that Crites had “actual constructive knowledge of the damages that

a mass search could pose to inmates and staff” because the warden and supervisory staff

were briefed about the severity of COVID-19 during mandatory roll call, and because

prisons were “named hotspots for outbreaks.” (Id. at 4–5). Mitchell asserts the search failed

to comply with “mandates” issued by Maryland Governor Larry Hogan on March 5, 2020,

as well as directives issued by the Warden of NBCI and the Centers for Disease Control

requiring prison facilities to modify search protocols, introduce social distancing, and

provide personal protective gear to inmates and staff. (Id.). Mitchell requests monetary

damages and injunctive relief “until [the] issue is resolved,” transfer to an institution

outside of Cumberland, Maryland, and for all social distancing mandates to be enforced by

NBCI administration and custody staff. (Id. at 5).

In his Motion to Dismiss Defendant’s Motion for Summary Judgment, Mitchell

states that on March 18, 2020, correctional staff entered his small cell so that they were

within arm’s reach of him, removed his handcuffs, and instructed him to grab his buttocks,

lift his genitals for inspection, and to use his hands to run along the gum line of his mouth

while an officer inspected his mouth with a flashlight. (Pl.’s Mot. Dismiss Def.’s Mot.

Summ. J. Alt. Summ. J. Pl. [“Opp’n”] at 4, ECF No. 18).4 Neither the correctional officers

nor Mitchell wore a facial covering. (Id.). Mitchell states that he was not provided an

opportunity to wash his hands. (Id. at 7). After the inspection, Mitchell was placed in a

chair alongside ten to twelve other inmates and correctional staff. (Id. at 4). He

acknowledges that staff wore fabric or leather gloves during the search and the inspection,

which included handling every item in his cell, including towels, food, clothing, and linen.

(Id.). At the time of the search, NBCI was not conducting any testing for the COVID-19

virus. (Id. at 7).

Importantly, Mitchell does not allege in the Complaint that he contracted COVID-

19 as a result of the search. Although he asserts in his Motion that he suffers ongoing severe

migraines, muscle aches, and fatigue, he does not provide any details to suggest they are

COVID-19 related or consequent to the search. (Id. at 8).5 Mitchell argues that because he

4 Courts generally will not permit plaintiffs to revise their pleadings through their

briefs. See Zachair, Ltd. v. Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997) (“[Plaintiff] is

bound by the allegations contained in its complaint and cannot, through the use of motion

briefs, amend the complaint.”), aff’d, 141 F.3d 1162 (4th Cir. 1998). However, given

Mitchell’s pro se status and the Court’s decision to review Crites’ Motion as a motion for

summary judgment, the Court will consider these additional allegations as though they had

been asserted in an affidavit accompanying Mitchell’s Motion. See Erickson v. Pardus, 551

U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed, and a pro se

complaint, however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers[.]” (internal quotation marks and citations omitted)).

5 Mitchell was seen by medical providers on March 26, 2020. (Mitchell Medical Rs.

[“Med. Rs.”] at 2–4, ECF No. 15-6). The medical record of that visit shows Mitchell voiced

was not tested until months after the cell search was conducted, transmission of the virus

would not have been discovered. (Id.). He asserts that the origin of the smoke on the tier

“should have been easily narrowed down to a more specific location” to avoid conducting

a mass search during a “state of emergency due to a deadly respiratory disease.” (Id. at 5).

On March 5, 2020, Maryland Governor Larry Hogan issued a state of emergency

proclamation in response to the COVID-19 pandemic. (State of Md. Coronavirus Executive

Order Excerpts [“Md. Orders”] at 1–2, ECF No. 15-3). On March 12, 2020, Governor

Hogan issued an order limiting large public gatherings to 250 people. (Id. at 3–5). On

March 16, 2020, Governor Hogan revised the March 12, 2020 order to limit large public

gatherings to fifty people. (Id. at 6–9). On March 31, 2020, the Secretary of the Department

of Public Safety and Correctional Services issued a directive to provide standards for using

PPE, and afterwards all institutional staff were provided PPE. (Crites Decl. ¶ 9; Bradley

Decl. Attachs. at 6–11). On April 15, 2020, Governor Hogan issued Executive Order No.

20-04-15-01, requiring for the first time that members of the public wear face coverings

when riding public transportation and in retail or food service establishments. (Md. Orders

at 14–17).

B. Procedural History

The Court received Mitchell’s Complaint on October 23, 2020. (ECF No. 1).

Although the Complaint does not expressly identify a cause of action, it appears to

no complaints about COVID-19 or symptoms associated with the virus. (Id. at 2, 4).

Mitchell’s vital signs were normal, there was no sign of labored breathing, and his

hypertension was “benign.” (Id. at 4). On June 16, 2020, and November 19, 2020, Mitchell

tested negative for COVID-19. (Id. at 5, 7).

articulate claims against Crites for negligence and for violations of the Eighth and

Fourteenth Amendments for wrongly authorizing a cell search that could have exposed

Mitchell to COVID-19. (Id. at 3). Mitchell seeks monetary damages and injunctive relief.

(Id. at 3, 5).

On February 18, 2021, Crites filed a Motion to Dismiss Plaintiff’s Complaint or,

Alternatively, for Summary Judgment (ECF No. 15). The Court received Mitchell’s

Opposition, styled as a Motion to Dismiss Defendant’s Motion for Summary Judgment

(ECF No. 18), on March 17, 2021. Crites did not file a Reply.

II. DISCUSSION

A. Standard of Review

1. Conversion

Crites styles his Motion as a motion to dismiss under Rule 12(b)(6) or, in the

alternative, for summary judgment under Rule 56. “A motion styled in this manner

implicates the Court’s discretion under Rule 12(d)[.]” Pevia v. Hogan, 443 F.Supp.3d 612,

625 (D.Md. 2020) (citation omitted). Rule 12(d) provides that when “matters outside the

pleadings are presented to and not excluded by the court, the [Rule 12(b)(6)] motion must

be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). The Court

has “complete discretion to determine whether or not to accept the submission of any

material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion

and rely on it, thereby converting the motion, or to reject it or simply not consider it.”

Wells-Bey v. Kopp, No. ELH-12-2319, 2013 WL 1700927, at *5 (D.Md. Apr. 16, 2013)

(quoting 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004)).

The United States Court of Appeals for the Fourth Circuit has articulated two

requirements for proper conversion of a Rule 12(b)(6) motion to a Rule 56 motion: notice

and “a reasonable opportunity for discovery.” Greater Balt. Ctr. for Pregnancy Concerns,

Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir. 2013) (citation omitted). When the

movant expressly captions its motion “in the alternative” as one for summary judgment

and submits matters outside the pleadings for the court’s consideration, the parties are

deemed to be on notice that conversion under Rule 12(d) may occur. See Moret v. Harvey,

381 F.Supp.2d 458, 464 (D.Md. 2005) (citing Laughlin v. Metro. Wash. Airports Auth.,

149 F.3d 253, 260–61 (4th Cir. 1998)). The Court “does not have an obligation to notify

parties of the obvious.” Laughlin, 149 F.3d at 261.

Ordinarily, summary judgment is inappropriate when “the parties have not had an

opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus.,

Inc., 637 F.3d 435, 448 (4th Cir. 2011) (citation omitted). Yet “the party opposing summary

judgment ‘cannot complain that summary judgment was granted without discovery unless

that party had made an attempt to oppose the motion on the grounds that more time was

needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244

(4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th

Cir. 1996)). To successfully raise the need for additional discovery, the non-movant must

typically file an affidavit or declaration under Rule 56(d), explaining the “specified

reasons” why “it cannot present facts essential to justify its opposition.” Fed.R.Civ.P.

56(d). A Rule 56(d) affidavit is inadequate if it simply demands “discovery for the sake of

discovery.” Hamilton v. Mayor & City Council of Balt., 807 F.Supp.2d 331, 342 (D.Md.

2011) (citation omitted). A Rule 56(d) request for discovery is properly denied when “the

additional evidence sought for discovery would not have by itself created a genuine issue

of material fact sufficient to defeat summary judgment.” Ingle ex rel. Estate of Ingle v.

Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (quoting Strag v. Bd. of Trs., Craven Cmty.

Coll., 55 F.3d 943, 954 (4th Cir. 1995)).

The Fourth Circuit has warned that it “‘place[s] great weight on the Rule 56[d]

affidavit’ and that ‘a reference to Rule 56[d] and the need for additional discovery in a

memorandum of law in opposition to a motion for summary judgment is not an adequate

substitute for a Rule 56[d] affidavit.’” Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at

961). Failing to file a Rule 56(d) affidavit “is itself sufficient grounds to reject a claim that

the opportunity for discovery was inadequate.” Id. (quoting Evans, 80 F.3d at 961). Despite

these holdings, the Fourth Circuit has indicated that there are some limited circumstances

in which summary judgment may be premature, notwithstanding the non-movants’ failure

to file a Rule 56(d) affidavit. See id. A court may excuse the failure to file a Rule 56(d)

affidavit when “fact-intensive issues, such as intent, are involved” and the nonmovant’s

objections to deciding summary judgment without discovery “serve[ ] as the functional

equivalent of an affidavit.” Id. at 244–45 (quoting First Chi. Int’l v. United Exch. Co., 836

F.2d 1375, 1380 (D.C. Cir. 1988)).

Here, the Court concludes that both requirements for conversion are satisfied.

Mitchell was on notice that the Court might resolve the Motion under Rule 56 because

Crites styled his Motion in the alternative for summary judgment and presented extra-

pleading material for the Court’s consideration. See Moret, 381 F.Supp.2d at 464. In

addition, the Clerk informed Mitchell about the Motion and the need to file an opposition.

(See Rule 12/56 Letter, ECF Nos. 16). Mitchell filed an Opposition but did not include a

request for more time to conduct discovery. (See ECF No. 18). Because the Court will

consider documents outside of Mitchell’s Complaint in resolving Crites’ Motion, the Court

will treat the Motion as one for summary judgment.

2. Summary Judgment

In reviewing a motion for summary judgment, the Court views the facts in a light

most favorable to the nonmovant, drawing all justifiable inferences in that party’s favor.

Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).

Summary judgment is proper when the movant demonstrates, through “particular parts of

materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations . . . admissions, interrogatory answers,

or other materials,” that “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A). Significantly, a

party must be able to present the materials it cites in “a form that would be admissible in

evidence,” Fed.R.Civ.P. 56(c)(2), and supporting affidavits and declarations “must be

made on personal knowledge” and “set out facts that would be admissible in evidence,”

Fed.R.Civ.P. 56(c)(4).

Once a motion for summary judgment is properly made and supported, the burden

shifts to the nonmovant to identify evidence showing that there is a genuine dispute of

material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

586–87 (1986). The nonmovant cannot create a genuine dispute of material fact “through

mere speculation or the building of one inference upon another.” Othentec Ltd. v. Phelan,

526 F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.

1985)).

A “material fact” is one that might affect the outcome of a party’s case. Anderson,

477 U.S. at 248; see also JKC Holding Co., LLC v. Wash. Sports Ventures, Inc., 264 F.3d

459, 465 (4th Cir. 2001) (citations omitted). Whether a fact is considered to be “material”

is determined by the substantive law, and “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of summary

judgment.” Anderson, 477 U.S. at 248; accord Hooven-Lewis v. Caldera, 249 F.3d 259,

265 (4th Cir. 2001). A “genuine” dispute concerning a “material” fact arises when the

evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party’s

favor. Anderson, 477 U.S. at 248. If the nonmovant has failed to make a sufficient showing

on an essential element of his case where he has the burden of proof, “there can be ‘no

genuine [dispute] as to any material fact,’ since a complete failure of proof concerning an

essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

B. Analysis

Crites moves for summary judgment in his favor on several grounds: (1) Eleventh

Amendment immunity; (2) the Complaint does not allege claims of unconstitutional

conduct; and (3) violation of Crites’ own policies, procedures, and rules does not provide

a basis for a due process violation.6 The Court addresses each argument in turn.

1. Eleventh Amendment

The Eleventh Amendment doctrine of sovereign immunity generally precludes the

recovery of monetary damages from state officials acting in their official capacities. Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The Fourth Circuit has identified

three exceptions to the Eleventh Amendment’s prohibition of suits against a state or an arm

of the state:

First, Congress may abrogate the States Eleventh Amendment

immunity when it both unequivocally intends to do so and acts

pursuant to a valid grant of constitutional authority. . . .

Second, the Eleventh Amendment permits suits for prospective

injunctive relief against state officials acting in violation of

federal law. . . . Third, [a] State remains free to waive its

Eleventh Amendment immunity from suit in a federal court.

Lee-Thomas v. Prince George’s Cnty. Pub. Schs., 666 F.3d 244, 249 (4th Cir. 2012). “State

officers sued in their official capacity are entitled to Eleventh Amendment immunity

because such a suit ‘is not a suit against the official but rather is a suit against the official’s

office.’” Just Puppies, Inc. v. Frosh, 438 F.Supp.3d 448, 482 (D.Md. 2020) (quoting Will,

491 U.S. at 70). “Congress did not abrogate the states’ sovereign immunity when it

enacted 42 U.S.C. § 1983,” and Maryland “has not waived its immunity under the Eleventh

Amendment to suit in federal court.” Pevia v. Hogan, 443 F.Supp.3d 612, 632 (D.Md.

6 Crites also argues that he is entitled to qualified immunity. Because the Court

concludes that Mitchell’s constitutional claims are subject to dismissal on the merits, the

Court need not consider Crites’ qualified immunity defense.

2020). Accordingly, the claims for monetary damages against Crites in his official capacity

must be dismissed.

2. Eighth Amendment Claims

Mitchell filed this lawsuit pursuant to 42 U.S.C. § 1983, which states that any person

acting “under color of any statute, ordinance, regulation, custom, or usage, of any State”

who deprives a United States citizen of any constitutional right may be liable in a suit for

money damages. 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)).

Negligence is not actionable under § 1983. See Davidson v. Cannon, 474 U.S. 344, 347–

48 (1986); see also Pierce v. Davis, 820 F.2d 1220 (4th Cir. 1987) (“[I]t is clear

that negligence alone is an insufficient basis for individual liability under 42 U.S.C.

§ 1983[.]” (citations omitted)); Grayson v. Peed, 195 F.3d 692, 695–96 (4th Cir. 1999)

(“[T]he Constitution is designed to deal with deprivation of rights, not errors in judgment,

even though such errors may have unfortunate consequences.”).

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

virtue of its guarantee against cruel and unusual punishment. U.S. Const. amend. VIII;

Gregg v. Georgia, 428 U.S. 153, 173 (1976). Liberally construing Mitchell’s allegations,

the Court will consider the Complaint to present Eighth Amendment claims based on

Crites’ alleged failure to protect Mitchell from harm by exposing him to COVID-19 and

by providing inadequate medical care.

The Eighth Amendment requires prison officials to maintain “humane conditions of

confinement,” including taking “reasonable measures to guarantee the safety of the

inmates.” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016). An Eighth Amendment claim

requires a plaintiff to establish both that the prison official subjectively “acted with a

sufficiently culpable state of mind” and objectively that the injury or deprivation inflicted

was serious enough to constitute a violation. Williams v. Benjamin, 77 F.3d 756, 761 (4th

Cir. 1996). A prisoner must demonstrate that the actions of prison officials amounted to

“deliberate indifference” to the inmate’s health and safety. See Estelle v. Gamble, 429 U.S.

97, 106 (1976) (establishing deliberate indifference as the standard for Eighth Amendment

inadequate medical care claims); Helling v. McKinney, 509 U.S. 25, 32–34 (1993)

(applying the deliberate indifference standard to a claim that a communicable disease

threatened inmates’ health and safety). To establish deliberate indifference, a plaintiff must

show that the defendant was “aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists” and that the defendant actually drew the inference.

Farmer v. Brennan, 511 U.S. 825, 837 (1994). Moreover, “prison officials who actually

knew of a substantial risk to inmate health or safety may be found free from liability if they

responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at 844.

Mitchell does not allege that he is elderly or that he has any preexisting medical

conditions that rendered him particularly vulnerable to COVID-19, much less that Crites

was aware of such risk. Mitchell’s conclusory assertion that Crites had “actual constructive

knowledge of the damages” because the “warden and supervisory staff were briefed about

the severity of COVID-19 during mandatory roll call,” (Compl. at 4), is insufficient to

demonstrate that Crites knew of and disregarded a substantial risk of harm to Mitchell in

particular.

Because subjective awareness is an essential element of the prima facie case for

deliberate indifference, it is generally not enough to aver conclusively that the defendant

had the requisite mental state; rather, a well-pleaded complaint must contain enough

plausible facts for a court to infer that the defendant possessed the applicable degree of

awareness or knowledge. See Owens v. Jefferson, No. CIV.A. 0:09-2888, 2010 WL

3170148, at *5 (D.S.C. May 4, 2010) (“The United States Supreme Court has . . . made

clear that when a plaintiff alleges a civil rights claim requiring him to establish a

defendant’s state of mind as an element of his claim, he must do so with specific factual

allegations, not conclusory statements.” (citation omitted)), report and recommendation

adopted, 2010 WL 3170073 (D.S.C. Aug. 10, 2010), aff’d, 404 F.App’x 781 (4th Cir.

2010) (per curiam); cf. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001)

(finding that using “conclusory legal terms” like “‘deliberate indifference,’ ‘malicious,’

‘outrageous,’ and ‘wanton’ when describing the conduct of the [defendants]” “does not

insulate a complaint from dismissal”).

In the context of the COVID-19 pandemic, courts have found that a plaintiff “must

provide more than generalized allegations that the [defendants] ha[ve] not done enough to

control the spread” of COVID-19. Blackwell v. Covello, No. 2:20-CV-1755 DB P, 2021

WL 915670, at *3 (E.D.Cal. Mar. 10, 2021); see also Hope v. Warden, 972 F.3d 310, 330

(3rd Cir. 2020) (rejecting petitioners’ arguments that exposure to COVID-19 was per se

unconstitutional and that the government must entirely eliminate their risk of exposure in

order to comply with constitutional mandates). Other courts that have considered

allegations similar to those presented in the Complaint have concluded that they do not

support a claim of deliberate indifference. See, e.g., Wylie v. Bonner, No. 2:20-cv-2593-

TLP-tmp, 2021 WL 261280, at *4–6 (W.D.Tenn. Jan. 26, 2021) (finding that inmate failed

to state an Eighth Amendment conditions of confinement claim because he failed to allege

that staff knew of and disregarded the risks posed by COVID-19); Kesling v. Tewalt, 476

F.Supp.3d 1077, 1086–88 (D.Idaho 2020) (noting that “[a]t first, it was unclear whether

cloth face masks would be particularly effective in curbing the spread of the virus” and “it

was not unreasonable for prison officials to refrain from requiring face masks in the early

months of the pandemic, particularly when access to such masks was limited”); McKissic

v. Barr, No. 1:20-cv-526, 2020 WL 3496432, at *6 (W.D.Mich. June 29, 2020) (finding

that an inmate’s “speculation about the mere possibility that he will become infected by

the virus does not rise to the level of an Eighth Amendment violation”).

In sum, Mitchell’s conclusory assertions are insufficient to infer a plausible Eighth

Amendment claim against Crites. Accordingly, his Eighth Amendment failure to protect

and inadequate medical care claims will be dismissed.

3. Fourteenth Amendment Claims

Mitchell does not articulate the basis for his allegation that Crites violated his

Fourteenth Amendment rights. Liberally construing the Complaint, the Court presumes

that Mitchell intends to allege that Crites violated his rights under the Due Process Clause

by violating policies and procedures relating to COVID-19. Even if he were correct in that

assertion, however, a mere violation of state law or regulation does not amount to a due

process claim. See Riccio v. Cnty. of Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990) (“If

state law grants more procedural rights than the Constitution would otherwise require, a

state’s failure to abide by that law is not a federal due process issue.”); Clark v. Link, 855

F.2d 156, 163 (4th Cir. 1988) (“[A] section 1983 claim can only be sustained by allegations

and proof of a violation of the Constitution or statutes of the United States and specifically

may not rest solely on a violation of state statutes or qualify as a common law tort.”).

Accordingly, Mitchell’s Fourteenth Amendment claim will be dismissed.

4. Negligence Claims

Though a federal court has discretion to retain supplemental jurisdiction over state

law claims that are related to dismissed federal claims, see 28 U.S.C. § 1367(c), it generally

should not continue to exercise this jurisdiction “when the federal-law claims have dropped

out of the lawsuit in its early stages and only state-law claims remain.” Carnegie-Mellon

Univ. v. Cohill, 484 U.S. 343, 350 (1988). Thus, to the extent Mitchell intends to raise a

state law claim for negligence, the claim will be dismissed without prejudice.

III. CONCLUSION

For the foregoing reasons, the Court will grant Crites’ Motion to Dismiss Plaintiff’s

Complaint or, Alternatively, for Summary Judgment (ECF No. 15), which it construes as

a motion for summary judgment. A separate Order follows.

Entered this 13th day of July, 2021.

/s/

George L. Russell, III

United States District Judge