Burns v. Buser

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JUAN BURNS, *

Plaintiff, -

ve *

CIVIL NO. JKB-18-3100

MICHAEL TURNER, *

Defendant.

* * * * * * . * * * * *

MEMORANDUM

In this suit, Plaintiff Da’ Juan Burns, an inmate at the North Branch Correctional Institution

Maryland, sued various officials for allegedly providing him with insufficient medical care in

violation of his constitutional rights. (Compl., ECF No. 1.) The Court has since dismissed Burns's

claims against all but two defendants on substantive grounds, and dismissed his claims against one

_ of the remaining two defendants as a sanction for Burns’s repeated failures to fulfill his discovery

obligations toward that defendant. Now pending before the Court is a Motion for Summary

Judgment filed by Correctional Officer Michael Turner, the only remaining defendant in this suit.

(ECF No. 162.) This motion is fully briefed,' and no hearing is required. See Local Rule 105.6

(D. Md. 2018). For the reasons set forth below, the Court will grant Officer Turner’s Motion for

Summary Judgment.

L Factual Background :

‘In October 201 8, Burns sued various medical providers and Officer Turner, primarily

alleging that they displayed deliberate indifference to his medical needs in violation of the Eighth

1 The Court considers Officer Turner’s motion to be fully briefed because Burns had ample time to submit a response,

the deadline for filing a response has passed, and Burns has still not responded ta Officer Turner’s motion as of this

date. See infra Part 1.

l oy

Amendment to the U.S. Constitution. (See Compl. {J 137-170.) Burns’s claims covered two

separate medical issues. First, Burns alleges he was experiencing a chronic condition called a

“varicocele,” which could be a sign of a “serious medical condition,” such as kidney cancer. (id.

7 15, 18, 93.) Bums does not allege that Officer Turner denied him medical treatment—or had

any connection te—that chronic condition. Second, Burns’s Complaint references a discrete

incident on January 4, 2018, when he allegedly fainted in his prison cell, as a result of being

prescribed the incorrect pain medication for his “chronic back and nerve pain[.]” (Id. {f 61, 76-

77.) After regaining consciousness, Burns allegedly sustained a “severely painful gash over his

right eye; severe pain in his upper front teeth; and pain generally throughout his body.” (/d. □□□□

According to Burns’s Complaint, when Officer Turner arrived at Burns’s cell to provide breakfast,

Burns allegedly showed Officer Turner the bleeding cut over his right eye, and Officer Turner

responded that he would call a nurse. (/d. { 81.) Burns alleges that Officer Turner later informed

him that Tammy Buser, a nurse at the facility, had declined to come check on Burns. (/d. 7 86.)

However, in an affidavit accompanying Officer Turner’s summary judgment motion,

Officer Turner recounts that on January 4, 2018, when Burns asked for a medical evaluation after

falling in his cell, Officer Turner “observed no blood, injury, scab or scarring on [Burns’s] face at

time.” (Michael Turner Decl. § 4, Mot. Summ. J.-Ex. 1, ECF No. 162-3.) Officer Turner

also attests that he has received first aid training and is “well aware and knowledgeable as to □□□

standards of care for inmates who report an injury.” (/d. J] 7-8.)

In his Complaint, Burns claims that Officer “Turner’s failure to summon Nurse Buser after

Plaintiff passed out and injured himself during the accompanying fall subjected Plaintiff to

continued pain, prolonged injury, stress, anxiety, and fear and constituted deliberate indifference _

in violation of the Eighth Amendment of the U.S. Constitution.” (Compl. 4 157.)

2

Ii. ‘Procedural Background

After Burns filed his Complaint, all of the defendants in this suit moved to dismiss the

Complaint, or alternatively, for summary judgment. (See ECF No. 22, 26, 58.) In Officer Turner’s

memorandum in support of dismissal and summary judgment, he argued that he was entitled to

qualified immunity if he was being sued in his individual capacity, and to Eleventh Amendment

immunity if Burns was suing him in his official capacity. (Mot. Dismiss Mem. Supp. at 5, 8-9,

ECF No. 26-1.) In the alternative, Officer Turner argued that Burns’s Eighth Amendment claim

should be dismissed on substantive grounds because Burns did not show that he was plausibly

entitled to relief on this claim. (/d. at 6-8.) □

After thoroughly considering Officer Turner’s arguments, this Court denied his Motion to

Dismiss on September 3, 2019, (Mem. Op. Dismissal, ECF No. 76.) The Court determined that

Officer Turner was not entitled to qualified immunity because Officer Turner might have violated

Burns’s clearly established rights by denying Burns medical care, despite the fact that he was

actively bleeding. (/d. at 13-14.) Relatedly, this Court held that Burns’s claim that Officer Turner

saw him bleeding, yet denied him medical care, stated a plausible deliberate indifference claim

under the Eighth Amendment. (/d. at 12-13.)

Although the Court found that Burns plausibly stated a claim against Officer Turner and

_ Buser, it found that the Complaint failed to state claims against the remaining defendants and

dismissed them from the case. (ECF No. 77.) Burns appealed these dismissals, and the Fourth

_ Circuit affirmed this Court’s decisions regarding dismissal. (ECF No. 145-1.) Therefore, when

discovery commenced, Buser and Officer Turner were the only defendants left in this action.

Burns was recalcitrant in the discovery phase of this lawsuit, and repeatedly failed to

respond to discovery requests from Buser. Facing Burns’s repeated failures to respond to these

outstanding discovery requests, Buser’s repeated motions for sanctions (see ECF Nos. 138, 150),

and several Orders from this Court warning Burns that he may face a sanction of dismissal (see

ECF Nos, 141, 144), this Court finally dismissed Burns’s claims against Buser on April 14, 2021.

(ECF No. 156.)

_ This recent development leaves Officer Turner, who had not moved for sanctions amidst

Burns’s multiple failures to timely submit filings, as the only defendant remaining in this suit. On

April 30, 2021, Officer Turner filed the present Motion for Summary Judgment (ECF No. 162). _

Burns has not filed any response to the present motion, rendering it the latest in a series of motions

to which Burns has not responded in the past year. (See, e.g., ECF Nos. 128, 133.) Burns, however,

has illustrated his ability to receive and file Court documents by filing motions seeking extensions

on April 13, 2021 and June 9, 2021. (See ECF Nos. 154, 164.) In Burns’s most recent Motion for

Extension, he alleged that he had not received Officer Turner’s Motion for Summary Judgment.

(ECF No. 164.) In response, on June 9, this Court ordered that another copy of the Motion for

Summary Judgment and its attachments be sent to Burns, and provided Burns with a twenty-eight-

day extension to file his response to the pending summary judgment motion. (ECF No. 165.)

Burns failed to respond to Officer Turner’s motion by that deadline. In fact, since June 9, the

Court has not received any correspondence from Burns.

Legal Standard

“The court shall grant summary judgment 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to

current Rule 56(a)). The “mere existence of a scintilla of evidence in support of the [nonmoving

party’s] position” is insufficient to defeat a motion for summary judgment. Anderson v. Liberty

4 .

Lobby, Inc., 477 U.S. 242, 252 (1986).. The facts themselves, and the inferences to be drawn

therefrom, must be viewed in the light most favorable to the party opposing summary judgment.

Scott v. Harris, 550 U.S. 372, 378 (2007); v, Shreve, 535 F.3d 225, 230 (4th Cir. 2008).

Even so, the opponent may not rest upon the mere allegations or denials of his pleading,

but must instead, by affidavit or other evidentiary showing, set out specific facts showing a genuine

dispute for trial. Fed. R. Civ. P. 56(¢)(1). Supporting and opposing affidavits must be made on

personal knowledge with such facts as would be admissible in evidence and must affirmatively

- show the competence of the affiant to testify to the matters stated therein. Fed. R. Civ. P. 56(c)(4).

A “complete failure of proof concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 317.

IV. Analysis

Officer Turner’s Motion for Summary Judgment repeats the same substantive arguments

that this Court already considered and rejected in ruling on Officer Turner’s earlier motion for

dismissal or summary judgment. (See ECF Nos. 26, 162.) Officer Turner argues, for the second

time, that he is entitled to qualified immunity, and alternatively, that Bums has failed to state a

plausible claim for deliberate indifference in violation of the Eight Amendment. (Mot. Summ. J.

Supp. at 4-7, ECF No. 162-1.) Officer Turner makes no reference to the fact that this Court

considered and rejected those same arguments in its earlier memorandum on dismissal, and Officer

Turner does not fully explain why the Court should treat these arguments differently at the

summary judgment stage, (See Mem. Op, Dismissal at 12-14.)

Although Officer Turner’s briefing reintroduces his failed arguments, he benefits from the

fact that this case ts at a later stage of litigation and facing a different standard. Further, Burns has

failed to respond to Officer Turner’s Motion for Summary Judgment, and so has failed to identify.

;

any disputed material facts. In short, Burns’s Complaint had survived dismissal because, at the

motion to dismiss stage, the Court had to presume that Burns’s allegations were true and read them

in the light most favorable to Burns. Viewed ‘that way, the Complaint created a plausible

entitlement to relief. At the summary judgment stage, however, Burns must do more in order for

his case to survive. Faced with the summary judgment standard, Burns fails not only to respond

to Officer Turner’s Motion for Summary Judgment, but also to present any evidence that would

establish a genuine dispute of material fact on his Eighth Amendment deliberate indifference

claim.” .

As this Court explained in its ‘memorandum regarding dismissal, to sufficiently claim

deliberate indifference, a plaintiff first must allege a “serious” medical need, meaning one that “is”

diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person

would recognize the necessity for a doctor’s attention.” Martin v. Bowman, 48 F.3d 1216, 1219

(4th Cir. 1995); (see also Mem. Op. Dismissal at 8.) Second, a plaintiff must allege the government

official subjectively recognized both that the plaintiff was exposed to a substantial risk of harm

and that his or her actions were inappropriate in light of that risk. Hearn v. Lancaster Cnty., 566

App’x 231, 236 (4th Cir. 2014); see also Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997)

(“True subjective recklessness requires knowledge both of the general risk, and also that the

conduct is inappropriate in light of that risk.”), “Although the deliberate indifference standard

requires a showing of actual knowledge .. . it ‘is a question of fact subject to demonstration in the

usual ways, including inference from circumstantial evidence.’” Parrish ex rel. Lee v. Cleveland,

372 F.3d 294, 303 (4th Cir, 2004) (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)).

? Because Burns’s Eighth Amendment claim against Officer Turner fails to substantively survive summary judgment,

the Court need not reach the question of whether Officer Turner's qualified immunity defense (see Mot. Summ, J.

Mem. Supp. at 4, 7) applies at this summary judgment stage, despite the fact that he lacked the immunity required to

watrant dismissal (see Mem. Op. Dismissal at 13).

□□

This Court declined to dismiss Burns’s claim against Officer Turner because, assuming the

facts alleged in Burns’s Complaint were true, he had adequately stated a medical need in the form

of a bleeding gash by his eye, Officer Turner had allegedly observed Burns’s injury, and Officer

Turner’s alleged ignorance of that bleeding gash was inappropriate in light of the circumstances.

(Mem. Op. Dismissal at 12-13.) At the summary judgment stage, however, the Court □□ -

considering the facts presented by both parties, and is no longer assuming the truth of all the

allegations pled in the Complaint. In an affidavit accompanying his Motion for Summary

Judgment, Officer Turner states that he did not see any blood or injury on Burns’s face on the

morning of January 4, 2018. (Michael Turner Decl. { 4.) Burns does not present any evidence to

contradict Officer Turner’s statement. See Williams, 952 F.2d at $23 (citing Celotex Corp., 477

U.S. at 324) (“As a general rule, when one party files a motion for summary judgment, the non-

movant cannot merely rely on matters pleaded in the complaint, but must, by factual affidavit or

the like, respond to the motion.”).?

Even when this Court reads the facts in the light most favorable to Burns, there is no

genuine dispute of material fact regarding whether Burns had a visible, bleeding facial injury when

Officer Turner came to his cell on the morning of January 4; 2018. Therefore, the Court can no

longer conclude that Burns presented a “serious” medical need that would have been “obvious” to

layperson. See Martin, 48 F.3d at 1219; Gardner v. United States, 184 F. Supp. 3d 175, 184 (D.

Md. 2016) (granting summary judgment in favor of defendants on an Eighth Amendment

3 The Fourth Circuit has held that “a verified complaint is the equivalent of an opposing affidavit for summary

judgment purposes, when the allegations contained therein are based on personal knowledge.” Williams v. Griffin,

952 F.2d 820, 823 (4th Cir. 1991) (emphasis in original). “A complaint is ‘verified’ if it is ‘signed, sworn, and

submitted under penalty of perjury.” Goodman v. Diggs, 986 F.3d 493, 495 n.2 (4th Cir. 2021). Burns’s Complaint

cannot be treated as an opposing affidavit for the purposes of summary judgment because, although signed, it is not

and does not state that it was submitted under penalty of perjury. Cf id. (internal citation omitted) (considering

an “explicit statement that ‘I declare under penalty of perjury that all [the] foregoing is true and correct’” as evincing

a verified complaint).

deliberate indifference claim when “Defendants have adduced evidence that seems flatly at odds

with the notion that they were deliberately indifferent to the Decedent’s wellbeing”). Because

Burns has not provided evidence of this necessary element of his deliberate indifference claim,

Burns’s Eighth Amendment claim against Officer Turner cannot survive summary judgment.

V. Conclusion

For the foregoing reasons, an order shall enter granting Officer Turner’s Motion for

Summary Judgment (ECF No. 162).

DATED this /> day of July, 2021.

BY THE COURT:

CDeme 6 Lae

James K. Bredar

Chief Judge