Shakur v. Officer Portmess

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

ANTHONY CLARK, JR. *

Plaintiff *

v * Civil Action No. SAG-20-1819

OFFICER JOHN PORTMESS *

Defendant *

***

MEMORANDUM OPINION

In response to this civil rights complaint, defendant Officer John Portmess1 filed a motion

to dismiss or, in the alternative, motion for summary judgment. ECF No. 20. Plaintiff Anthony

Clark, Jr. opposes the motion. ECF Nos. 35, 36. Also pending is Clark’s Motion for Leave to File

an Amended Complaint, which Portmess opposes. ECF Nos. 29, 31. No hearing is necessary to

resolve the issues. See Local Rule 105.6 (D. Md. 2021). For the reasons stated below, Plaintiff’s

motion to amend will be denied without prejudice to refiling and Defendant’s motion will be

granted as to claims against him in his official capacity and denied as to all remaining claims.

BACKGROUND

I. Plaintiff’s Allegations

Clark is a Maryland state inmate, who at all times relevant to this case has been incarcerated

at the North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland. Clark alleges

that on September 26, 2019, while housed on A-Tier in Housing Unit #1, he was “seized” by

correctional officers who forced him to the ground. Clark was then handcuffed while he was

pinned face down and chest to the ground by several officers. Although he was not resisting the

1 The Clerk shall amend the docket to reflect defendant’s full name.

officers, Clark claims that Portmess struck him repeatedly with a “very heavy thick mace canister”

on the back, sides, and top of his head. Complaint, ECF No. 1 at 2; Declaration of Anthony Clark,

ECF No. 35-2 at 1 ¶3. Clark states that he sustained deep lacerations, open wounds leaving

permanent scarring, and “substantial blood loss which pooled beneath my head.” ECF 1 at 3.

Portmess and another officer lifted Clark by his handcuffs and dragged him to the medical room

where no medical personnel were present. Id.; see also Declaration of Anthony Clark, ECF 35-2

at 2. In the medical room, Clark was placed across the “bed-chair” and struck repeatedly with

closed fists, taunted with racial epithets and threats, and sexually assaulted. ECF 1 at 3. When

medical personnel entered the room, they asked how blood got on the walls. Clark’s requests to

file a complaint under the Prison Rape Elimination Act (“PREA”), 34 U.S.C. § 30301-30309

(2018) were denied by Lieutenant Whiteman and Sergeant Thomas.

Clark requests $250,000 in compensatory and punitive damages, and unspecified

declaratory and injunctive relief. With his opposition, Clark has submitted declarations, including

his own and those of fellow inmates in support of his allegations. In his motion for leave to file

an amended complaint plaintiff requests leave to add Larry Gilpin, RN Michael Klepitch, and

“Officer(s) John Doe” as defendants and to introduce new claims based on the conditions of his

confinement and inadequate medical care. ECF 29, 29-1.

II. Defendant’s Response

Portmess has filed verified exhibits including copies of relevant medical records, the report

issued by the Intelligence and Investigative Division (“IID”), video footage, photographs, and

declarations. Portmess describes the September 26, 2019 incident as follows:

While attempting to place handcuffs on Anthony Clark, Jr., he struck me on

the left side of my face with a closed fist. I then defended myself by striking

Anthony Clark, Jr. with closed fists and knocking him to the ground. He

quickly got back up and charged at me again at which time I applied a short

burst of pepper spray to his facial area and was eventually able to force him

to the ground where he continued to resist the application of handcuffs and

attempted to get back up. I then struck Anthony Clark, Jr., several times with

my pepper spray canister in the face and head in a continued effort to gain his

compliance. With the assistance of responding staff members, Anthony

Clark, Jr., was eventually brought under control and was placed in handcuffs.

Declaration of Officer John Portmess, ECF 20-6 ¶ 4.

Portmess denies Clark’s allegations that he repeatedly struck Clark in the head with a

closed fist, threatened him, used racial epithets, and sexually assaulted him, and states that he has

no knowledge of any other staff members doing so. Id. ¶¶ 8-10. Portmess states that after Clark’s

medical evaluation was completed, Clark was offered and refused a decontamination shower and

was escorted to a cell on Housing Unit #1, where he remained on Staff Alert status until October

9, 2019. Id. ¶ 6.

Clark’s medical records evince that he was seen on September 26, 2019 at 1:25 p.m. by

Michael Klepitch, R.N. for pepper spray exposure. Klepitch reported that Clark was alert and

oriented, but because Clark would not cooperate, Klepitch was unable to take his vital signs.

Klepitch observed that there was “blood spatter everywhere in exam room due to patient spitting

blood on the wall,” Clark had “4 minimal lacerations,” and “no other injuries noted.” ECF 20-7

at 3. Klepitch applied a pressure dressing and cleaned the blood from Clark’s face and eyes. Clark

signed a Release of Responsibility form to acknowledge that he refused a physical examination on

September 26, 2019. ECF 20-7 at 2. Notably, Clark now denies being uncooperative with medical

personnel or refusing a shower. Clark Decl. ECF No. 35-2 at 2. Three weeks later, on October

21, 2019, during an unscheduled nurse visit, William Beeman, R.N. observed no wounds on Clark.

ECF 20-7 at 5.

The Intelligence and Investigative Division (“IID”) of the Department of Public Safety and

Correctional Services assigned Detective Sergeant C. McKenzie to investigate the incident. ECF

No. 20-8 at 2, 6. Clark refused to exit his cell to speak with McKenzie. Id. at 6. On November

21, 2019, McKenzie reviewed the video recording of the incident, which he described in his report:

On 9/26/19 at approx. 1145 hrs., the video shows Inmates Clark and

Stevenson talking with COII Portmess and COII Saville at the officers station

at the front of the tier. There is some conversation which then clearly shows

Inmate Stevenson becoming aggravated with COII Saville as Inmate Clark

attempts to grab the left arm of Inmate Stevenson. COII Portmess attempts

to secure the left arm of Inmate Clark, who then strikes COII Portmess in the

face with closed fist punch. COII Saville then takes Inmate Stevenson to the

floor as additional correctional staff respond. Both inmates were then secured

and removed from the tier without further incident.

Id. McKenzie concluded “there is no indication that Inmate Clark was assaulted by staff during

this incident.” Id.

The Court’s review of the video-only, no-audio footage in evidence shows two inmates in

discussion with two officers by a desk. After some discussion, the inmate wearing dark pants

(Clark) touches or brushes against the other inmate (in lighter pants, Inmate Stevenson), and the

officer closest to Clark, Portmess, reaches for Clark’s arm (seemingly in a nonthreatening way).

In response, Clark punches Portmess with a closed fist. Portmess then punches Clark with a closed

fist, and other officers arrive to assist. A second view of the scene shows Clark being taken to the

ground, surrounded by officers, and handcuffed. Officer Portmess is seen making upward and

downward arm motions in the area where Clark’s head is on the ground. Clark is lifted by his

handcuffs. The escorting officers then drag Clark by his handcuffs, with his hands over his head.

DVD 19-NB-152, ECF Nos. 20, 32. The recording does not continue while Clark is in the medical

room.

Photographs of Clark taken at 11:56 a.m. show that his eyes were swollen shut, there is

blood and or lacerations on his face and head, and his shirt is stained with what is likely blood and

pepper spray. ECF No. 20-5 at 18-19.

On May 24, 2021, Clark was placed on a pass list to view the video footage. According to

correctional staff, Clark refused the pass. Declaration of John White, ECF No. 27-1. Clark denies

that he refused the pass to watch the recording of the September 26, 2019 incident. Clark Decl.

ECF No. 35-2 at ¶ 21.

After the incident, Clark was charged with violating Rule 101 (assault or battery on staff)

and Rule 316 (disobeying an order). He was found guilty after an adjustment hearing of both

charges and sanctioned with the revocation of 365 diminution credits, loss of privileges for 60

days, and 180 days of segregation. ECF 20-5 at 5-7.

Case manager Benjamin Bradley states that NBCI Investigations Captain Cutter

determined that Clark, or another inmate acting on his behalf, called the PREA Hotline to report

an assault on September 26, 2019 in Housing Unit #1. “This call was not made in reference to a

PREA incident or to report a possible sexual assault.” Declaration of Benjamin Bradley, ECF No.

20-4 at 1 ¶ 4. Clark did not submit a PREA complaint about the September 26, 2019 use of force

incident, and therefore no PREA investigation was initiated. Id. ¶ 5.

On October 21, 2019, Clark submitted an administrative remedy procedure complaint

(“ARP”) which was designated as “ARP NBCI-2147-19” and alleged that on September 26, 2019,

Portmess assaulted him, taunted him with racial expletives, and sexually assaulted him with a mace

can. ECF No. 20-4 at 6 (attached to IID notification). The ARP was procedurally dismissed by

the ARP Coordinator because the matter was under investigation by IID in Case No. IID-19-35-

01855. Id.; see also ARP Index, ECF 20-4 at 5. Clark’s ARP dated November 1, 2019 was

procedurally dismissed as repetitive to ARP NBCI-2147-19. ECF 20-4 at 5. Clark did not pursue

a grievance with the Inmate Grievance Office (IGO) related to any allegation of excessive force,

sexual assault, access to PREA, or conditions of confinement on September 26, 2019. Declaration

of Pamela White, IGO, ECF 20-10.

STANDARD OF REVIEW

Portmess’s dispositive motion is styled as a motion to dismiss under Fed. R. Civ. P.

12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56. A motion styled

in this manner implicates the court’s discretion under Rule 12(d) of the Federal Rules of Civil

Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F. Supp. 2d 431, 436-

37 (D. Md. 2011).

Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual

disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th

Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside

of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated as one

for summary judgment under Rule 56,” and “[a]ll parties must be given a reasonable opportunity

to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d); see Adams

Housing, LLC v. The City of Salisbury, Maryland, 672 F. App’x 220, 222 (4th Cir. 2016) (per

curiam). 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. See

Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir.

2013). When the movant expressly captions its motion as one for summary judgment “in the

alternative” 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; the court “does not have an

obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d

253, 261 (4th Cir. 1998). Clark was provided such notice. He also received notification from the

Clerk of defendant’s dispositive motion and the opportunity to reply with exhibits and declarations

and has done so. Thus, conversion of this motion to one for summary judgment is appropriate and

this Court will consider all of the exhibits filed.

Summary judgment is governed by Fed. R. Civ. P. 56(a), which provides, in part: “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.” See Celotex Corp. v.

Catrett, 477 U.S. 317, 322-24 (1986); see also Cybernet, LLC v. David, 954 F.3d 162, 168 (4th

Cir. 2020). To avoid summary judgment, the nonmoving party must demonstrate that there is a

genuine dispute of material fact to preclude the award of summary judgment as a matter of law.

Ricci v. DeStefano, 557 U.S. 557, 585-86 (2009); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 585-86 (1986); see also Gordon v. CIGNA Corp., 890 F.3d 463, 470 (4th Cir.

2018).

The Supreme Court has clarified that this does not mean that any factual dispute will defeat

the motion. “By its very terms, this standard provides that the mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is “material” if

it “might affect the outcome of the suit under the governing law.” Id. at 248. There is a genuine

issue as to material fact “if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Id.; see CTB, Inc. v. Hog Slat, Inc., 954 F.3d 647, 658 (4th Cir. 2020);

Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016). “A party opposing a properly supported motion

for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,’ but

rather must ‘set forth specific facts showing that there is a genuine issue for trial.’” Bouchat v.

Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original)

(quoting Fed. R. Civ. P. 56(e)), cert. denied, 541 U.S. 1042 (2004). The court must “view the

evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in

her favor without weighing the evidence or assessing the witnesses’ credibility.” Dennis v.

Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). “A court can grant summary

judgment only if, viewing the evidence in the light most favorable to the non-moving party, the

case presents no genuine issues of material fact and the moving party demonstrates entitlement to

judgment as a matter of law.” Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th

Cir. 2017). The court also is mindful of its obligation to construe liberally the submissions of a

self-represented plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Importantly, 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. Thus, the trial court may not make credibility determinations on summary judgment.

Wilson v. Prince George’s Cty., 893 F.3d 213, 218-19 (4th Cir. 2018); Jacobs v. N.C.

Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Dennis, 290 F.3d at 644-

45. Where there is conflicting evidence such as competing affidavits, summary judgment is

generally inappropriate, because it is the function of the factfinder to resolve factual disputes,

including matters of witness credibility.

Because plaintiff is self-represented, his submissions are liberally construed. See Erickson

v. Pardus, 551 U.S. 89, 94 (2007). But the court must also abide by the “‘affirmative obligation

of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.’”

Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d

774, 778–79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)).

DISCUSSION

Portmess asserts that he is entitled to dismissal of the claims against him or summary

judgment in his favor, raising affirmative defenses of failure to exhaust administrative remedies

Eleventh Amendment immunity, and qualified immunity, and argues that Clark has failed to state

an Eighth Amendment claim for excessive use of force.

A. Exhaustion of Administrative Remedies

Inmate claims not properly presented through the administrative remedy procedure must

be dismissed pursuant to the Prisoner Litigation Reform Act (“PLRA”), which provides in part

that “[n]o 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.” 42 U.S.C. § 1997e(a) (2013).

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, 93 (2006).

Exhaustion may only be excused if the administrative process is not actually available. See Ross

v. Blake, 578 U.S. 632, 641-42 (2016) (holding that an inmate “must exhaust available remedies

but need not exhaust unavailable ones”). “[A]n administrative remedy is not considered to have

been available if a prisoner, though no fault of his own, was prevented from availing himself of

it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Administrative process is not available

when prison officials are “unable or consistently unwilling to provide any relief to aggrieved

inmates” such that it effectively “operates as a simple dead end”; the procedure is so “opaque” that

it is practically incapable of use; or prison administrators thwart inmates from filing grievances.

Ross, 578 U.S. at 643-44.

Portmess claims that Clark’s claims are unexhausted due to his failure to appeal his

grievance all the way to the Inmate Grievance Office through all three steps in the administrative

process. In Clark’s view, he exhausted his claims and when “officers attempted to frustrate and

impede my attempts to utilize the grievance system, I still tried to navigate around those erected

obstacles,” and he informed the administration of these actions even when he received no response

to his grievances or inquiries. ECF No. 35-2 at 4 ¶ 19. Clark’s fellow inmate, Christopher Witcher,

states that he heard Clark asking correctional officers to deposit his mail in the mailbox and officers

ignored him. When Clark asked one officer to take his mail, the officer responded, “I’am [sic] not

going to help you take any Officers at IGO, Dum [N*****]!” Declaration of Christopher Witcher,

ECF 35-5 at 2.

Thus, the parties have provided conflicting information about the availability of the

administrative process to Clark, which presents a genuine dispute of material fact and involves

issues of credibility that precludes pre-discovery summary judgment for failure to exhaust

administrative remedies.

B. Eleventh Amendment

The Eleventh Amendment to the Constitution immunizes state agencies and departments

from citizen suits for damages in federal court. See Pennhurst State Sch. and Hosp. v. Halderman,

465 U.S. 89, 100 (1984). Portmess is a Maryland state employee. Suits against agents of the state

for acts taken in their official capacities are equivalent to suing the state itself. Will v. Michigan

Dep't of State Police, 491 U.S. 58, 71 (1989). Accordingly, the claims against Portmess in his

official capacity are barred by the Eleventh Amendment., see Pennhurst, 465 U.S. at 100–01, and

will be dismissed.

C. Eighth Amendment Claim

Whether force used by prison officials was excessive is determined by inquiring if “force

was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically

to cause harm.” Hudson v. McMillian, 503 U. S. 1, 6-7 (1992). The court must look at the need

for the application of force, the relationship between that need and the amount of force applied,

the extent of the injury inflicted, the extent of the threat to the safety of staff and inmates as

reasonably perceived by prison officials, and any efforts made to temper the severity of the

response. Whitley v. Albers, 475 U.S. 312, 321 (1986).

Here, the record shows that the events on September 26, 2019, began when Clark punched

Portmess with a closed fist. Portmess responded by punching Clark, other officers arrived

immediately, Clark was taken to the ground, and Clark was handcuffed. At some point Portmess

sprayed pepper spray in Clark’s face. It is unclear whether Clark continued to resist once he was

on the ground surrounded by officers, as alleged by Portmess. If Clark did not resist, as he asserts,

then there is a question whether the force used, including hitting him in the head with a heavy can,

constituted a good faith effort to restore prison discipline and security or infliction of force in a

malicious and sadistic manner. The verified evidence and declarations provided by the parties

conflict, and the video recording does not resolve these questions. Rather, resolution of these

issues involves questions of credibility inappropriate for summary judgment. Clark’s account of

the events in the medical room is also refuted by Portmess, so that resolving that factual dispute is

equally inappropriate on summary judgment.

D. Qualified Immunity

Portmess argues he is entitled to qualified immunity and that summary judgment is

appropriate on that basis. However, Portmess offers no real argument for application of the

doctrine, aside from boilerplate statements setting out the legal standard. The defense therefore

fails. Further, the qualified immunity defense is unavailing both because the constitutional right

was well-established at the time of the incidents at issue and because there exists a material dispute

of fact regarding whether the conduct allegedly violative of Clark’s constitutional rights actually

occurred. See Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005). While it is true that

qualified immunity is ordinarily determined at the summary judgment stage of litigation, see

Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003), the defense of “[q]ualified immunity does not,

however, override the ordinary rules applicable to summary judgment proceedings.” Willingham,

412 F.3d at 559, citing Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). As noted, there are

genuine disputes of material fact that preclude summary judgment at this time. See Willingham,

412 F.3d at 559. Thus, qualified immunity does not serve as a basis for summary judgment under

the present record in this case.

CONCLUSION

For these reasons, Portmess’s dispositive motion will be denied, except as to Clark’s claims

against him in his official capacity, which will be dismissed. Because it is anticipated that

discovery will be necessary to complete the factual record, the court will grant Clark an opportunity

to file a motion for appointment of counsel to assist him as this case proceeds. Clark’s motion to

amend will be denied without prejudice to refiling such a motion, after counsel is appointed. A

separate order will follow.

November 9, 2021 ______________/s/_______________

Date Stephanie A. Gallagher

United States District Judge