Perkins v. Donoway

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

DAVID PERKINS, *

Plaintiff, *

v. * Case No.: DLB-20-811

LIEUTENANT WALTER *

DONOWAY, et al.,

*

Defendants.

MEMORANDUM OPINION

David Perkins, a Maryland state inmate confined to Maryland Correctional Institution –

Hagerstown (“MCI-H”), filed a civil rights complaint pursuant to 42 U.S.C. § 1983 after another

inmate violently assaulted him while he was incarcerated at Eastern Correctional Institution. ECF

1. He claims defendants Lieutenant Walter Donoway, Sergeant Steven Wilson, and Sergeant Luis

Ramos failed to protect him from substantial risk of serious injury by allowing him in the day room

with other inmates when they knew the inmates posed a threat to him. ECF 9 & 13 (am. compl.

& supp.). Defendants filed a motion to dismiss or, in the alternative, motion for summary

judgment. ECF 31. Perkins filed an opposition, a statement of disputed facts, a brief in support

of his opposition, and a declaration, all under oath. ECF 36, 36-1, 36-2, 36-4; see ECF 36, at 7

(oath of affirmation). In his opposition, Perkins seeks leave to amend his complaint and asks the

Court to treat his brief as an amended complaint. ECF 36, at 2; ECF 36-2, at 8–9. Defendants

filed a reply in support of summary judgment and in opposition to Perkins’ attempt to amend his

pleading. ECF 43. They also filed a motion to exceed the page limit in their reply brief, ECF 42,

which is granted. The parties separately filed several exhibits. ECF 31-4 – 31-9, 36-4, 43-1.

Finally, Perkins filed a motion to extend time to respond to the defendants’ reply, ECF 46, which

is denied as moot because the Court did not authorize a surreply. See Loc. R. 105.2(a).

A hearing is not necessary. See Loc. R. 105.6. For the reasons stated below, summary

judgment is granted in favor of defendant Ramos and denied as to defendants Donoway and

Wilson. Perkins’ request to amend is denied without prejudice. The Court will appoint counsel

for Perkins and give counsel the opportunity to file a motion for leave to amend and a proposed

amended complaint.

I. Background

On December 8, 2017, Perkins submitted an inmate statement notifying prison officials

that he feared other inmates were going to stab him because a correctional officer told the inmates

that Perkins gave him “incriminating information about [them].” ECF 36-2, at 9–10; ECF 36-4,

at 3–4. Soon thereafter, he was transferred to administrative segregation. ECF 36-2, at 10; ECF

36-4, at 7; ECF 31-6, at 2. Donoway, Wilson, and Ramos worked on the administrative

segregation unit where Perkins was transferred. ECF 31-6, at 1–2; ECF 31-7, at 1–2; ECF 36-2,

at 21. According to Perkins, within days of arriving in administrative segregation, he told

Donoway, with Wilson present, that “he wanted to be separated from inmates” because they may

believe he is a “snitch” and “inmates ha[d] been threatening him about being a ‘snitch.’” ECF 36-

2, at 10–11, 21–22. He said that he “was in fear for [his] life, that inmates were yelling and

threatening [him], and telling [his] cell-mate that [Perkins] was a ‘snitch.’” ECF 36-4, at 8; see

ECF 36-2, at 21–22. Perkins told Donoway and Wilson that “word [that he was a snitch] had

already made it to th[e] unit, and [he] needed to either be separated from ‘all inmates completely’

or transferred to ‘Protective Custody.’” ECF 36-4, at 8. He also told Donoway and Wilson that

he “did not want to go back in the cell with [his] cell-mate.” Id.; see ECF 36-2, at 21–22. Perkins

stated that Donoway told him he would “see what [he] can do,” but then did not separate him from

his cellmate or send him to protective custody. ECF 36-2, at 11, 22; ECF 36-4, at 8.1

A few months later, on March 8, 2018, Perkins was in the day room of the administrative

segregation unit when inmate Edward Johnson assaulted him, slicing his face and ear. ECF 31-4,

at 6 (serious incident report); ECF 36-4, at 9. At the time, Donoway and Wilson both were on the

unit, albeit not in the day room. ECF 36-2, at 17, 25; ECF 31-4, at 39–40; ECF 31-6, 31-7.

Donoway was the Housing Unit Lieutenant and Wilson was the “OIC,” the officer in charge who

“works the ‘control bubble’ controlling what cell doors are opened and closed, as well as all inmate

movements.” ECF 36-2, at 17; ECF 31-4, at 39–40; ECF 31-6, at 1. Donoway’s “responsibilities

included daily oversight of Correctional Officers and Sergeants, as well as monitoring inmate

movement.” ECF 31-6, at 1.

Correctional Officer David Hearn was on the tier at the time of the assault and saw Johnson

running away from Perkins, who was holding the right side of his face, which was bleeding. ECF

31-4, at 6; ECF 36-2, at 11–12. Officer Hearn called for assistance, and responding officers took

1 Perkins states that, on or about January 1, 2018, inmate Edward Johnson threw feces and urine

at him. ECF 36-2, at 11; ECF 36-4, at 8. He claims that Wilson questioned him about what

happened and asked whether he “had any trouble” with Johnson. ECF 36-2, at 11; ECF 36-4, at

8. Perkins states that he answered that he “shouldn’t” have an issue with Johnson, because he

feared retribution for saying more. ECF 36-2, at 11; ECF 36-4, at 8–9. Donoway states that he

was unaware of the alleged January 1 incident with Johnson, that he could find no record of it, and

that Perkins never mentioned any concerns about Johnson when he met with Donoway monthly to

review his segregation status. ECF 43-2, at 2. Additionally, defendants note that Wilson was on

leave on January 1, 2018, and that no such incident was reported between December 27, 2017, and

January 2, 2018. ECF 43, at 20–21; see ECF 43-1, at 95–98, 101–48). “When opposing parties

tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable

jury could believe it, a court should not adopt that version of the facts for the purposes of ruling

on a motion for summary judgment.” Smith v. Ozmint, 578 F.3d 246, 254 (4th Cir. 2009) (quoting

Scott v. Harris, 550 U.S. 372, 380 (2007)). Because the record blatantly contradicts Perkins’

account, the Court does not consider the alleged January 1 incident in ruling on defendants’

motion.

Perkins to the medical unit for evaluation, after which he was transported to the emergency room.

ECF 31-4, at 6; ECF 36-2, at 12. Perkins required plastic surgery and stitches because of the

assault. ECF 36-2, at 12; ECF 36-4, at 17.

Perkins states that, a few days later, Donoway questioned him, with Wilson and Ramos

present. ECF 36-2, at 12, 22; ECF 36-4, at 9–10. Perkins declares that Donoway said that

he knew that this was going to happen, because he received many letters from

inmates telling him that this was going to happen, and he overheard many

conversations of inmates yelling out of the cracks of their doors to other inmates

when [Donoway] would go back and forth between the rec hall and [Perkins’] cell,

but it’s not his job to try to protect inmates that chose to snitch on everybody,

including his officers.

ECF 36-4, at 10; see ECF 36-2, at 12, 22.

Another inmate, Osbaldo L. Berrios, declares that he spoke with Donoway about his

concern for his own safety. ECF 36-4, at 15–16. Berrios feared that other inmates wanted to hurt

him because he had told Donoway incriminating information about them, and Donoway in turn

told those inmates what he heard from Berrios. Id. According to Berrios, during his conversation

with Donoway about his concern for his own safety, Donoway stated he “‘knew that David Perkins

was going to get hurt eventually” because Perkins had “asked for help and to be separated or

brought to [protective custody]” and Donoway “was receiving letters from inmates (telling him

that [that Perkins would get hurt]).” Id. at 16. Additionally, Donoway told Berrios that he had

“heard inmates yelling at David Perkins every time that he went to the rec hall about him being a

‘snitch.’” Id. Donoway then told him that it was “‘not his responsibility to protect inmates that

snitch on everybody,’” that Perkins had “snitched on his officers too, and that he’s not going to

make his job harder to help a[n] inmate that snitches on his officers,” and that he “hates snitches,

and that a snitch is not a real man.” Id. at 16–17. He stated that Donoway said that inmates need

to learn “never to get caught snitching on his officers.” Id. at 17.

Donoway and Wilson, through declarations, swear that did not know, before the assault,

about any issues between Perkins and Johnson or any “particular threat against” Perkins. ECF 31-

6, at 2; ECF 31-7, at 2. Donoway acknowledges he met with Berrios, but he declares he did not

discuss Perkins with Berrios or make the statements Berrios ascribes to him. ECF 43-2, at 3.

II. Motion to Amend

In his opposition to the defendants’ motion, Perkins seeks leave to amend his complaint

and asks the Court to treat his brief in support of his opposition as an amended complaint. ECF

36, at 2; ECF 36-2, at 8–9. He seeks to augment his factual allegations regarding the March 8

assault and to add a claim for injunctive relief “to enforce DOC to give the Plaintiff a thorough

medical check up, at a[n] outside hospital, pay all of the treatment that is warranted, and release

the Plaintiff from custody at a[n] earlier date to avoid any further damages to the Plaintiff.” ECF

36-2, at 8. In their opposition to plaintiff’s request to amend, the defendants argue that the request

is procedurally deficient because it appears within an opposition brief and it is futile because the

case would not survive summary judgment even with the proposed amendments. ECF 43, at 1–3

& n.1, 7–9. In the interest of justice and because Perkins does not currently have counsel, the

Court construes his brief in support of his opposition as an opposition to the motion for summary

judgment, a motion for leave to amend, and a proposed amended complaint. See Fed. R. Civ. P.

1.

Pursuant to Rule 15, courts “should freely give leave [to amend] when justice so requires.”

Fed. R. Civ. P. 15(a)(2). “A motion to amend should only be denied when ‘the amendment would

be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or

the amendment would be futile.’” ACA Fin. Guar. Corp. v. City of Buena Vista, Va., 917 F.3d

206, 217–18 (4th Cir. 2019) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir.

1999)); see also Foman v. Davis, 371 U.S. 178, 182 (1962).

When Perkins’ filing is viewed as an amended complaint alleging a new claim for

injunctive relief for medical care and additional facts about the assault, it does not comply with

the pleading requirements of Rule 8. A complaint must contain “a short and plain statement of the

claim” that shows that the plaintiff “is entitled to relief.” Fed. R. Civ. P. 8(a). Under Rule 8(d)(1),

each allegation in a complaint should be “simple, concise, and direct.” Perkins’ proposed amended

complaint does not state a claim for injunctive relief for medical care because he has not alleged,

as is required to obtain such relief, that any defendant was deliberately indifferent to his medical

needs, in violation of his Eighth Amendment rights. See Estelle v. Gamble, 429 U.S. 97, 103, 104

(1976). His additional allegations in support of his existing claim for damages are interwoven

with his argument in opposition to the motion, rendering it difficult to construe the document as a

stand-alone pleading with simple, concise, and direct allegations. Therefore, the motion for leave

to amend is denied without prejudice. Because some of Perkins’ claims survive the defendants’

pre-discovery summary judgment motion, he will be appointed counsel, who may file a motion for

leave to amend and a proposed amended complaint.2

III. Standard of Review

Defendants move to dismiss the complaint for failure to state a claim or, alternatively, for

summary judgment. The Court’s review of a Rule 12(b)(6) motion typically is limited to the

pleadings, documents attached to the complaint, and the parties’ briefs. See Fed. R. Civ. P.

12(b)(6), 12(d); see also Fed. R. Civ. P. 10(c). The Court also may consider documents integral

2 For purposes of the summary judgment motion, the Court may consider as record evidence the

filing’s new allegations about the assault because the filing is verified. In doing so, the Court does

not convert the filing into an amended complaint.

to and explicitly relied on in the complaint when their authenticity is not disputed. See Zak v.

Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597, 607 (4th Cir. 2015). When the parties present and

the Court considers matters outside the pleadings on a Rule 12(b)(6) motion, the Court must treat

the motion 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).

Perkins received sufficient notice that the motion may be treated as a summary judgment

motion. The Court sent notice advising him that the defendants’ motion could be construed as one

for summary judgment and could result in the entry of judgment against him. ECF 32.

Additionally, the defendants’ motion, identifying summary judgment as possible relief, provided

sufficient notice for Perkins to have a reasonable opportunity to present relevant evidence in

support of his position. See Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 260–61

(4th Cir. 1998). Indeed, Perkins presented evidence along with his opposition. ECF 36-4. Thus,

the Court is satisfied that he has been advised that the defendants’ motion could be treated as one

for summary judgment and that he has been given a reasonable opportunity to present materials in

response to the motion. The Court will resolve the motion under Rule 56.

Summary judgment is appropriate when the moving party establishes 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). To meet its burden, the party must identify “particular parts of materials in

the record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations . . . admissions, interrogatory answers, or other materials” in support of

its position. Fed. R. Civ. P. 56(c)(1)(A). Then, “[t]o avoid summary judgment, the opposing party

must set forth specific facts showing that there is a genuine issue for trial.” Perkins v. Int’l Paper

Co., 936 F.3d 196, 205 (4th Cir. 2019) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). A dispute of fact is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The opposing party must identify

more than a “scintilla of evidence” in support of its position to defeat the motion for summary

judgment. Id. at 251. The Court “should not weigh the evidence.” Perkins, 936 F.3d at 205

(quoting Anderson, 477 U.S. at 249). However, if “the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party,” then summary judgment is proper. Id.

(quoting Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991)); see

also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). In ruling on a motion for summary

judgment, this Court “view[s] the facts and inferences drawn from the facts in the light most

favorable to . . . the nonmoving party.” Perkins, 936 F.3d at 205 (quoting Evans v. Techs.

Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996)).

IV. Analysis

A. Exhaustion of Administrative Remedies

The defendants raise the affirmative defense that Perkins has failed to exhaust his

administrative remedies. The Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, states

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). The

phrase “prison conditions” encompasses “all inmate suits about prison life, whether they involve

general circumstances or particular episodes, and whether they allege excessive force or some

other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002); see Chase v. Peay, 286 F. Supp. 2d

523, 528 (D. Md. 2003).

Exhaustion under § 1997e(a) is mandatory, and therefore the plaintiff must exhaust his

available administrative remedies before this Court will hear his claims. See Ross v. Blake, 136 S.

Ct. 1850, 1857 (2016); Jones v. Bock, 549 U.S. 199, 215–16 (2007); Anderson v. XYZ Corr. Health

Servs., Inc., 407 F. 2d 674, 682 (4th Cir. 2005). Consequently, if the undisputed facts show Perkins

has not properly presented any of his claims through an available administrative remedy procedure,

Court must enter summary judgment in the defendants’ favor on that claim pursuant to the PLRA.

See Ross, 136 S. Ct. at 1857; see also Bacon v. Greene, 319 F. App’x 256, 257–58 (4th Cir. 2009).

To exhaust his administrative remedies, an inmate must complete “the administrative

review process in accordance with the applicable procedural rules, including

deadlines.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006); Moore v. Bennette, 517 F.3d 717, 725

(4th Cir. 2008). 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).’” Woodford, 548 U.S. at 93 (quoting Pozo v. McCaughtry,

286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis in original). The Court will not dismiss a claim

as unexhausted “if a prisoner, through no fault of his own, was prevented from availing himself of

[an administrative remedy].” Moore, 517 F.3d at 725. “The Supreme Court has identified certain

circumstances in which an official grievance policy is not ‘capable of use’ in this sense,” including

“situations in which officials ‘thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.’” Moss v. Harwood, 19 F.4th 614, 621 (4th Cir.

2021) (quoting Ross, 136 S. Ct. at 1859–60).

An administrative remedy procedure process applies to all Maryland prisons. Md. Code

Regs. (“COMAR”) 12.02.28.01 et seq. A prisoner seeking redress for a rights violation must

follow that process, beginning with filing an ARP request with the prison’s managing official. Md.

Code Ann., Corr. Servs. § 10-206(b); COMAR 12.07.01.04; see Woodford v. Ngo, 548 U.S. 81,

88, 93 (2006) (to exhaust administrative remedies, a prisoner must complete “the administrative

review process in accordance with the applicable procedural rules”). If his ARP request is

dismissed, he can challenge the decision by filing an appeal with the Commissioner of Corrections.

COMAR 12.07.01.05C. If he is dissatisfied with the result when he completes that procedure, he

may file a grievance with the Inmate Grievance Office (“IGO”). Corr. Servs. §§ 10-206(a), 10-

210; COMAR 12.07.01.03, 05B. The IGO may refer the complaint to an administrative law judge

(“ALJ”) for a hearing or dismiss it without a hearing if it is “wholly lacking in merit on its face.”

Corr. Servs. §§ 10-207, 10-208; Cts. & Jud. Proc. § 10-208(c); COMAR 12.07.01.06A, .07, .07B,

.08. If the IGO dismisses the complaint, its dismissal serves as a final agency determination. Corr.

Servs. §§ 10-207(b)(1). If the complaint is referred to an ALJ, the ALJ provides a proposed

decision to the Secretary of Department of Public Safety and Correctional Services. See Corr.

Servs. § 10-209(b)–(c). The Secretary, in turn, makes a final agency determination. See id.

Perkins admits that he did not complete the administrative remedies process but insists that

he was unable to file a timely ARP about the incident because a correctional officer misinformed

him that he first had to obtain the related incident report and medical records and attach them to

the ARP. ECF 36-4, at 12. He states that he attempted to get the documents, and when he could

not, the same officer told him to file ARPs to obtain the documents and that he would be given

time to file the ARP on the assault once he had the necessary documents. Id.

The defendants argue that Perkins’ reasons for not exhausting administrative remedies are

not credible because Perkins does not name the officer or provide the dates he spoke with the

officer. ECF 43, at 13. However, Perkins’ verified statements are corroborated by the ARPs that

he did file. ECF 31-4, at 46–47. On April 16, 2018, Perkins filed his first post-assault ARP, asking

why he had not received any information about the March 8 incident. Id. at 46. In it, Perkins

stated he had sent a written request to “medical records” for the records associated with the incident

and, in response, he received paperwork to complete and a “money voucher.” Id. He completed

the paperwork and returned it with the money voucher. Id. He stated that he wanted both the

March 8 incident report and the related medical records. Id. The ARP was dismissed for

procedural reasons because “additional information [was] needed to investigate [his] request.” Id.

In an April 20, 2018 ARP, Perkins responded to the dismissal by describing the incident in further

detail and stating that the money for the documents had been taken from his account. ECF 31-4,

at 47. The second ARP also was dismissed for procedural reasons because Perkins raised both

medical and custody issues in the same ARP and needed to file a separate ARP for each issue. Id.

Both ARPs are consistent with Perkins’ statement that he believed he needed to obtain documents

to include with an ARP about the assault and that he tried to obtain them. The defendants argue

that Perkins cannot be believed because he has prior experience with the ARP process and access

to ARP filing instructions. 3 Even assuming those facts are true, they do not necessarily negate his

statement that an officer told him that an ARP regarding the March 8 assault would be denied

automatically if he did not file it with proper documentation. When Perkins eventually learned

that he could file the ARP without the documents and that his ARP requests for the documents did

not extend his filing deadline, the filing deadline had passed. Therefore, he did not file an ARP

regarding the assault. When the facts are viewed in the light most favorable to Perkins, there is a

genuine dispute about whether the ARP process was made unavailable to him by a correctional

3 On December 18, 2017 plaintiff filed an ARP complaining that his property had been mishandled.

ECF 43-1, at 18.

officer who misrepresented the procedural requirements.4 See Toomer v. BCDC, 537 F. App’x

204, 206–07 (4th Cir. 2013) (concluding that, insofar as a “Step III grievance” was required to

exhaust administrative remedies, the defendants were “estopped from arguing . . . fail[ure[ to

exhaust” because “the instructions [the plaintiff received] essentially diverted [him] from filing a

Step III grievance”); Brown v. Croak, 312 F.3d 109, 112–13 (3d Cir. 2002) (holding that

administrative remedy was unavailable to prisoner when prison officials told him to wait until

informal investigation concluded before filing a formal grievance); see also Bacon, 319 F. App’x

at 258 (finding a genuine dispute of material fact regarding availability of administrative remedies

where the plaintiff asserted that the defendant refused to disclose information about the officers on

duty when the plaintiff was assaulted and that “this lack of information rendered him incapable of

filing a request for administrative remedy that would comply with institution procedure”).

Accordingly, the Court denies summary judgment on the failure to exhaust defense because, on

the current record, a reasonable jury could find that Perkins, “through no fault of his own, was

prevented from availing himself of [the administrative process].” See Moore, 517 F.3d at 725.

B. Eleventh Amendment Immunity

The defendants argue that, under the Eleventh Amendment, they are immune from suits

seeking money damages from them in their official capacities. Perkins does not contest the well-

established law that officials sued in their official capacities are not “persons” under § 1983 who

may be liable for monetary damages. See Fauconier v. Clarke, 966 F.3d 265, 279–80 (4th Cir.

2020) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). Rather, Perkins asserts

4 The Court need not address Perkins’ assertion that he did not pursue the ARP process due to

intimidation by other inmates and correctional officers. ECF 36-2, at 17; ECF 36-4, at 12. Perkins’

allegations of intimidation are non-specific. Nevertheless, it is not necessary to address this issue

as the Court finds a genuine dispute as to whether the ARP process was unavailable to Perkins for

other reasons.

that he seeks damages against the defendants in their individual capacities only. ECF 36, at 4;

ECF 36-2, at 8. This, of course, is permissible. See Fauconier, 966 F.3d at 279–80.

Perkins counters that Eleventh Amendment immunity does not bar his claims for injunctive

relief against state officials in their official capacities. This, too, is true. Tankersley v. Almand,

837 F.3d 390, 406 n.6 (4th Cir. 2016) (Davis, Sr. C.J., concurring in part); see Will, 491 U.S. at 71

n.10. But Perkins did not assert claims for injunctive relief in his complaint. The first mention of

injunctive relief is in Perkins’ opposition brief, which doubles as a proposed amended complaint

that the Court denied leave to file at this time. Therefore, the Court need not address now the

defendants’ argument that they are immune from a claim for injunctive relief.

C. Failure to Protect

Perkins claims the defendants violated his constitutional rights when they failed to protect

him from an excessive risk of serious injury. “The Eighth Amendment protects prisoners from

‘unnecessary and wanton infliction of pain.’” Thompson v. Virginia, 878 F.3d 89, 97 (4th Cir.

2017) (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). Under the Eighth Amendment, prison

officials must “take reasonable measures to guarantee the safety of . . . inmates.” Id. (quoting

Whitley v. Albers, 475 U.S. 312, 319–20 (1986)). “Being violently assaulted in prison is simply

not part of the penalty that criminal offenders pay for their offenses against society.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

To prevail on a claim for failure to protect from attack by another inmate, the plaintiff must

show that he suffered an objectively serious injury and that the defendants knew of and disregarded

an excessive risk that such an injury would occur. Danser v. Stansberry, 772 F.3d 340, 346–47

(4th Cir. 2014); Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008). The objective inquiry requires

this Court to “assess whether society considers the risk that the prisoner complains of to be so

grave that it violates contemporary standards of decency to expose anyone unwillingly to such a

risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993). “[N]ot every injury suffered by a prisoner at

the hands of another translates into constitutional liability for prison officials responsible for the

victim’s safety.” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015).

Then, in a subjective inquiry, the Court determines whether the defendant “is aware of the

existence of a general risk” and also knows that his “conduct is inappropriate in light of that risk.’”

Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997); see Farmer, 511 U.S. at 834, 837. “[C]onduct

that amounts to ‘deliberate indifference’ . . . is viewed as sufficiently shocking to the conscience

that it can support [an Eighth or] Fourteenth Amendment claim.” Parrish ex rel. Lee v. Cleveland,

372 F.3d 294, 302 & n.11 (4th Cir. 2004) (quoting Young v. City of Mount Ranier, 238 F.3d 567,

575 (4th Cir. 2001)). This is “a very high standard” that requires more than “a showing of mere

negligence.” Id. at 302 (quoting Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999)). Thus, “a

prison official cannot be found liable under the Eighth Amendment for denying an inmate humane

conditions of confinement unless the official knows of and disregards an excessive risk to inmate

health or safety.” Farmer, 511 U.S. at 837. The Supreme Court delineated the difference between

tort liability and liability for a constitutional violation:

The Eighth Amendment does not outlaw cruel and unusual “conditions”; it outlaws

cruel and unusual “punishments.” An act or omission unaccompanied by

knowledge of a significant risk of harm might well be something society wishes to

discourage, and if harm does result society might well wish to assure compensation.

The common law reflects such concerns when it imposes tort liability on a purely

objective basis. See Prosser and Keeton §§ 2, 34, pp. 6, 213–214; see also Federal

Tort Claims Act, 28 U.S.C. §§ 2671–2680; United States v. Muniz, 374 U.S. 150,

83 S.Ct. 1850 (1963). But an official’s failure to alleviate a significant risk that he

should have perceived but did not, while no cause for commendation, cannot under

our cases be condemned as the infliction of punishment.

Id. at 837–38.

The defendant’s own action—or failure to act—is required for liability under § 1983. See

Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004); Vinnedge v. Gibbs, 550 F.2d 926, 928

(4th Cir. 1977). There is no respondeat superior liability under § 1983. Love-Lane, 355 F.3d at

782. Officials like Ramos, Wilson, and Donoway may be found liable only if the plaintiff shows

the official “acted personally in the deprivation of the plaintiff[’s] rights.” Vinnedge, 550 F.2d at

928 (quoting Bennett v. Gravelle, 323 F. Supp. 203, 214 (D. Md.), aff’d, 451 F.2d 1011 (4th Cir.

1971)).5

Here, there is no dispute that Perkins suffered an objectively serious injury at the hands of

another inmate. The contested issue is whether the defendants knew of and disregarded an

excessive risk that such an injury would come to pass. See id. at 837.

1. Ramos

Perkins cannot prevail on his claim against Ramos because he has not identified any

evidence that Ramos knew, before the assault, that inmates had threatened to assault him and that

Ramos failed to protect him. He states Ramos was present when he was interviewed after Johnson

assaulted him, but he does not offer any evidence that Ramos knew Perkins was in danger before

the assault. Without any evidence to support his allegation that Ramos was deliberately indifferent

to an excessive risk of harm, the Court grants summary judgment in favor of Ramos.

5 A plaintiff may establish a supervisor’s liability under § 1983 based on a subordinate’s conduct

if the plaintiff establishes that (1) the supervisor had actual or constructive knowledge that

subordinate’s conduct “posed a pervasive and unreasonable risk of constitutional injury to citizens

like the plaintiff” (2) the supervisor responded in a manner that was so inadequate that it showed

“deliberate indifference to or tacit authorization” of the subordinate’s conduct; and (3) there was

“an affirmative causal link between the supervisor’s inaction” and the plaintiff’s constitutional

injury. Timpson by & through Timpson v. Anderson Cnty. Disabilities & Special Needs Bd., 31

F.4th 238, 257 (4th Cir. 2022) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). Perkins

does not argue that any of the defendants should be liable as a supervisor for a subordinate’s

conduct. Moreover, Perkins has not alleged or offered evidence that any defendant knew that his

subordinate’s conduct posed an unreasonable risk of injury to him.

2. Wilson and Donoway

The deliberate indifference claims against Wilson and Donoway survive summary

judgment. Perkins has submitted evidence that Wilson and Donoway knew that he had been

threatened and feared attack by inmates who believed he was a snitch and the officers failed to

protect him. Perkins told them as much within a few days of his transfer to the administrative

segregation unit, which was prompted by a December 2017 inmate statement to prison officials in

which he expressed his fear of an attack by inmates who believed he was a snitch. Although there

is no evidence that Donoway or Wilson, supervisors on the administrative segregation unit, read

the statement, Perkins told Donoway, shortly after his transfer and in the presence of Wilson, that

he was afraid to be around any other inmates because they believed he was a snitch and had

threatened him on that basis, and that he did not want a cellmate. And, he told both defendants

that, because other inmates believed he was a snitch, he “needed to either be separated from ‘all

inmates completely’ or transferred to ‘Protective Custody.’” And, Perkins declares that, a few

days after Johnson assaulted him, Donoway told him that “he knew this was going to happen” and

that “it’s not his job to try to protect inmates that chose to snitch on everybody, including his

officers.” ECF 36-4, at 10. According to the declaration of Berrios, another inmate on the same

unit, Donoway told Berrios that “Perkins[] asked for help and to be separated or brought to

[protective custody]” and that “[Donoway] knew that David Perkins was going to get hurt

eventually,” but it was “not his responsibility to protect inmates that snitch on everybody.” ECF

36-4, at 16–17.

Wilson and Donoway respond that they were not made aware of any “particular threat”

against Perkins before the assault. ECF 31-6, 31-7. Both declared that, “[p]rior to March 8, 2018,

[they] had no knowledge of any hostility or threat between Inmates Perkins and Johnson, nor of

any particular threat against Inmate Perkins” and that “Inmate Perkins never reported to [them]

that Inmate Johnson was a threat to him prior to the March 8, 2018, incident.” ECF 31-6, at 2;

ECF 31-7, at 2. Donoway also declared that he “did not discuss anything about Plaintiff with

inmate Berrios, nor did [he] make the statements [Berrios] alleges.” ECF 43-2, at 3. Yet neither

denies that Perkins communicated to them that inmates had deemed him a snitch and threatened

him, that he was scared they would hurt him because they believed he was a snitch, and that he

told them he wanted to be moved to protective custody. ECF 31-6, 31-7. Moreover, as for

Donoway, there is evidence—albeit disputed—that he said he expected other inmates would injure

Perkins because he was considered a snitch. ECF 36-4, at 10, 16–17. Although there is no

evidence at this point that Donoway or Wilson knew that Johnson in particular posed a threat to

Perkins, they may not escape liability for deliberate indifference by claiming they did not know

that Perkins was likely to be assaulted by Johnson. See Farmer, 511 U.S. at 843 (“Nor may a

prison official escape liability for deliberate indifference by showing that, while he was aware of

an obvious, substantial risk to inmate safety, he did not know that the complainant was especially

likely to be assaulted by the specific prisoner who eventually committed the assault.”).

When the evidence is viewed in the light most favorable to Perkins, the Court finds there

are genuine disputes of material fact precluding summary judgment on the deliberate indifference

claim against Donoway and Wilson. They include: whether Wilson and Donoway knew that

inmates had threatened to harm Perkins because they deemed him a snitch and whether Perkins

asked them to move him to protective custody because of the threats; what action, if any, Wilson

and Donoway took in response to the threats; whether allowing other inmates into the day room

when Perkins was there posed an excessive risk of harm to him; and whether Wilson and Donoway

knew their action or inaction was inappropriate under the circumstances. Resolution of these

material factual disputes require credibility determinations that cannot be made on summary

judgment. See Roberts v. Gestamp W. Va., LLC, 45 F.4th 726, 732 (4th Cir. 2022).

D. Qualified Immunity

The defendants assert they are qualifiedly immune from the § 1983 claim. Under the

doctrine of qualified immunity, “government officials performing discretionary functions

generally . . . are ‘shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.’” Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). “Proof that the official acted in objectively reasonable reliance on existing law . . .

would exempt an official from liability under § 1983 . . . .” Melgar ex rel. Melgar v. Greene, 593

F.3d 348, 360 (4th Cir. 2010) (citation omitted).

When deciding whether the doctrine of qualified immunity applies, the Court considers (1)

“‘whether the facts that a plaintiff has . . . shown . . . make out a violation of a constitutional right’”

and (2) “whether the right at issue was ‘clearly established’ at the time of [the] alleged

misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001), overruled on other grounds as stated in Pearson); Hicks v. Ferreyra, 965 F.3d

302, 307 (4th Cir. 2020). The plaintiff bears the burden of proving that a constitutional violation

occurred, and the defendant bears the burden of proving that the constitutional right allegedly

violated was not clearly established. See Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 (4th

Cir. 2013); Henry v. Purnell, 501 F.3d 374, 377–78 (4th Cir. 2007). Courts have “discretion in

deciding which of the two prongs of the qualified immunity analysis should be addressed first in

light of the circumstances in [a] particular case . . . .” Pearson, 555 U.S. at 236. In an exercise of

this discretion, the Court considers only the second prong of the qualified immunity analysis:

whether the constitutional right was clearly established at the time of the alleged misconduct.

A right is “clearly established” if “it would be clear to a reasonable official that his conduct

was unlawful in the situation he confronted.” Raub v. Campbell, 785 F.3d 876, 882 (4th Cir.

2015). The Court must “consider whether a right is clearly established ‘in light of the specific

context of the case, not as a broad general proposition.’” Adams v. Ferguson, 884 F.3d 219, 227

(4th Cir. 2018) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam)). To determine

whether a right was clearly established, the Court considers whether “existing precedent . . . placed

the statutory or constitutional question beyond debate,” making it “sufficiently clear that every

reasonable official would [have understood] that what he is doing violates that right.” Reichle v.

Howards, 566 U.S. 658, 664 (2012) (quoting al-Kidd, 563 U.S. at 741).

On the current record, the Court cannot conclude as a matter of law that Donoway and

Wilson did not violate Perkins’ clearly established Eighth Amendment right to protection from

violent assault by other inmates. As discussed above, Perkins has submitted evidence that

Donoway and Wilson knew that he faced an excessive risk of harm because inmates believed he

was a snitch and wanted to hurt him, yet Donoway and Wilson did not take action to protect him.

There is evidence that they were supervisors on the administrative segregation unit when Johnson,

the assailant, was allowed in the unit’s day room at the same time as Perkins and lacerated Perkins’

face and ear. When the record evidence is construed in the light most favorable to Perkins, a

reasonable jury could find that Donoway and Wilson were deliberately indifferent to an excessive

risk of harm to him. Therefore, the Court concludes that, on the record before it, Donoway and

Wilson are not entitled to qualified immunity as a matter of law.

E. Conclusion

The defendants’ motion to dismiss or, in the alternative, for summary judgment, ECF 31,

is treated as a motion for summary judgment. The motion is denied as moot with respect to their

Eleventh Amendment immunity argument, granted as to Ramos, and denied as to Wilson and

Donoway. Perkins’ request for leave to amend his complaint, ECF 36, is denied without prejudice.

The Court will appoint counsel for Perkins and give counsel an opportunity to file a motion for

leave to amend and a proposed amended complaint, if counsel has a good faith basis for doing so.

A separate order follows.

September 29, 2022 □□ ISGZ

Date Deborah L. Boardman

United States District Judge

20