# Pevia v. Moyer

> District Court, D. Maryland · May 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10208515

## Case

- **Court:** District Court, D. Maryland
- **Decided:** May 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10208515

## How later opinions describe it (automated extraction)

- holding that 28 U.S.C. § 1915 does not authorize compulsory appointment of counsel

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

DONALD PEVIA, *

Plaintiff, *

v. * Civil Action No. ELH-20-3270

STEPHEN MOYER, et al., *

Defendants. *
***
MEMORANDUM
Plaintiff Donald R. Pevia is a prisoner at the North Branch Correctional Institution
(“NBCI”) in Cumberland, Maryland. On November 10, 2020, he filed suit under 42 U.S.C. § 1983
against Stephen Moyer, then Secretary of Department of Public Safety and Correctional Services
(“DPSCS”); Commissioner of DPSCS Wayne Hill; Warden Frank Bishop; Assistant Warden
Jeffrey Nines; and Lt. Vaughn Whitemen, alleging denial of his constitutional rights. ECF 1.
Plaintiff included several exhibits with the Complaint. ECF 1-1.
Defendants Moyer, Bishop, Nines, and Whitemen filed a motion to dismiss or, in the
alternative, for summary judgment. ECF 10. It was supported by a memorandum. ECF 10-1.
Defendants asserted that the Complaint was subject to dismissal because Pevia failed to exhaust
his administrative remedies; they were each entitled to public official immunity under State law;
and Pevia failed to plead personal participation. Id. Pevia opposed the motion. ECF 13, ECF 14,
ECF 15. On December 13, 2021, the court entered a Memorandum Opinion (ECF 18) and Order
(ECF 19) denying the motion. The court also stayed the proceedings as to these defendants,
pending service on defendant Hill. Id.
Service was accepted for Hill. ECF 20. Thereafter, Hill filed a motion to dismiss or, in
the alternative, for summary judgment (ECF 28), supported by a memorandum. ECF 28-1. He
asserted that Pevia failed to state a clam or exhaust his administrative remedies. Id. Further, Hill
claimed he is entitled to immunity as to claims asserted against him in his official capacity and
qualified immunity in all other respects. Id. By Memorandum Opinion (ECF 33) and Order (ECF
34) of October 3, 2022, the motion was granted solely as to any claims asserted against Hill in his
official capacity and denied in all other respects.

Defendants Bishop, Hill, Moyer, Nines, and Whitemen have again moved to dismiss or, in
the alternative, for summary judgment (ECF 39), supported by a memorandum (ECF 39-1)
(collectively, the “Motion”). They have also submitted as an exhibit the Declaration of F. Todd
Taylor, Jr., Executive Director of the Inmate Grievance Office (“IGO”). Pevia opposes the
Motion. ECF 41, ECF 42, ECF 43.1 He has also filed a motion to appoint counsel. ECF 35.
No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2021). For
the reasons that follow, Pevia’s motion to appoint counsel is denied, without prejudice. And,
defendants’ Motion, construed as a motion to dismiss, is granted as to any claims asserted against
them in their official capacity and denied in all other respects.

I. Non-Dispositive Motions
Pevia has moved to appoint counsel. A pro se prisoner does not have a general right to
counsel in a § 1983 action. Evans v. Kuplinski, 713 Fed. Appx. 167, 170 (4th Cir. 2017). The
power of a federal district court judge to appoint counsel under 28 U.S.C. § 1915(e)(1) is
discretionary, and an indigent claimant must present “exceptional circumstances.” Kuplinski, 713
Fed. App’x at 170; Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Exceptional
circumstances exist where a “pro se litigant has a colorable claim but lacks the capacity to present

1 In addition, Pevia filed motions to uphold the original decision (ECF 41) and to
supplement his opposition (ECF 42), along with a response in opposition to the renewed
dispositive motion. ECF 43.
it.” See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by
Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989) (holding that 28 U.S.C. § 1915 does not
authorize compulsory appointment of counsel).
Upon consideration of the filings by plaintiff, the court finds that he has demonstrated the
wherewithal either to articulate the legal and factual basis of his claims himself or secure

meaningful assistance in doing so. Moreover, the issues pending before the court are not unduly
complicated. Therefore, there are no exceptional circumstances at this time that, under 28 U.S.C.
§ 1915(e)(1), warrant the appointment of an attorney to represent plaintiff.
Accordingly, I shall deny the motion for appointment of counsel (ECF 35), without
prejudice.
II. Factual Background
The court previously summarized the factual background of this case, as follows, ECF 18
at 2-4:
Plaintiff alleges that defendants violated his rights under the Eighth
Amendment to the Constitution by intentionally double celling him in a cell that
was designed to only hold one person and by keeping him confined to the cell 22
hours per day. ECF 1-1 at 5. He seeks monetary damages and declaratory relief.
ECF 1-1 at 28.

A. Administrative Remedy Procedure (“ARP”) NBCI-2432-19
Pevia states that he was transferred from Roxbury Correctional Institution to
NBCI on or about October 14, 2011. ECF 1-1 at 24. According to Pevia, while
housed at NBCI he has been forced to live in unconstitutional conditions. Id. He
contends that the cells were designed to hold one inmate but, due to over-crowding,
two inmates are placed in a cell. Id. Further, he alleges that this double celling
creates a hostile environment which endangers everyone’s safety. Id.

Plaintiff filed ARP NBCI-2432-19 on December 4, 2019, complaining that his
rights under the Eighth Amendment were violated because he was double celled in
a cell designed to hold only one inmate. ECF 1-1 at 5. Pevia explains that NBCI
was designed to house one inmate in each cell and that unidentified staff altered
documents to justify the double celling of inmates. Id. Pevia states that NBCI used
a cell schematic that showed the cells were 80 feet in area but, in actuality, they are
only 60 feet. Id. at 6. Further, Pevia claims that he is required to be provided 25 feet
of unencumbered space, which is not provided. Id. He also alleges that if he is
locked in his cell more than 10 hours per day, standards governing correctional
facilities require that he be provided 80 feet of space. Id. He states he has back
problems from having to always sit or lay down and not being able to exercise. Id.
Pevia’s appeals of the ARP dismissal, including to the Inmate Grievance Office,
were denied.

B. ARP NBCI-0697-20
Pevia explains that since being housed at NBCI he has been placed in hostile
environments due to the double celling conditions. ECF 1-1 at 25. Even though, in
Pevia’s opinion, he is to be housed in a single cell or provided more out of cell
activity, Lt. Whitemen, the housing unit manager (ECF 1 at 2), has created a policy
that disallows courtesy moves. ECF 1-1 at 25. Further Pevia has been advised that
his only remedy is to refuse his housing assignment and be placed on lock up. Id.
He alleges that when administrators decided to house two inmates instead of one in
the cells at NBCI, no modifications were made to the cells, forcing cellmates to
fight over who gets to plug in their appliances. Id.

On March 28, 2020, Pevia filed another ARP alleging that his rights under the
Eighth Amendment were violated because he was held, with another inmate, for 22
hours a day in a cell designed for one person. ECF 1-1, at 15. He alleged that
because the cells were designed to hold only one inmate, there are insufficient
outlets to plug in appliances, leading to hostility among the cellmates and forcing
Pevia either to refuse housing or fight his cellmate. Id. Pevia’s appeals of the denial
of his ARP were denied, including at the IGO.

In the Memorandum Opinion resolving Hill’s Motion to Dismiss, I noted, ECF 33 at 10:
Pevia also alleges in his opposition that NBCI was previously ordered to
discontinue double celling. ECF 30 at 2; see ECF 13-1 at 10 (Affidavit of Policarpio
Ispinoza regarding removal of top bunks from cells in order to convert cells from
double to single cells).

III. Standard of Review
Defendants style their Motion as a motion to dismiss or, in the alternative, for summary
judgment. For the reasons that follow, the court construes the Motion as one to dismiss. Except
as to the official capacity claims, I shall deny the Motion.
A defendant may test the legal sufficiency of a plaintiff’s complaint by way of a motion to
dismiss under Rule 12(b)(6). Fessler v. Int’l Bus. Machs. Corp., 959 F.3d 146, 152 (4th Cir. 2020);
In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d
159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff’d sub
nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243

(4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the
facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon
which relief can be granted.” See Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005)
(citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); Ibarra v. United States,
120 F.3d 472, 473 (4th Cir. 1997).
Whether a complaint states a claim for relief is assessed by reference to the pleading
requirements of Fed. R. Civ. P. 8(a)(2). See Migdal v. Rowe Price-Fleming Int’l Inc., 248 F.3d
321, 325-26 (4th Cir. 2001); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). That
rule provides that a complaint must contain a “short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of the rule is to provide the
defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts
sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions’ . . . .”); see also Fauconier v. Clarke, 996
F.3d 265, 276 (4th Cir. 2020); Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 918
F.3d 312, 317-18 (4th Cir. 2019); Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). To be sure,
a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly,
550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint
for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of
Shelby, Miss., 574 U.S. 10, 10 (2014) (per curiam). But, mere “‘naked assertions’ of wrongdoing”
are generally insufficient to state a claim for relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th

Cir. 2009) (citation omitted).
In reviewing a Rule 12(b)(6) motion, “a court ‘must accept as true all of the factual
allegations contained in the complaint,’ and must ‘draw all reasonable inferences [from those facts]
in favor of the plaintiff.’” Retfalvi v. United States, 930 F.3d 600, 605 (4th Cir. 2019) (alteration
in Retfalvi) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th
Cir. 2011)); see Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v.
Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015). However, “a court is not required to
accept legal conclusions drawn from the facts.” Retfalvi, 930 F.3d at 605 (citing Papasan v. Allain,
478 U.S. 265, 286 (1986)); see Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th Cir. 2010). “A

court decides whether [the pleading] standard is met by separating the legal conclusions from the
factual allegations, assuming the truth of only the factual allegations, and then determining whether
those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy
sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied,
566 U.S. 937 (2012).
In connection with a Rule 12(b)(6) motion, courts ordinarily do not “‘resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.’” King v. Rubenstein,
825 F.3d 206, 214 (4th Cir. 2016) (citation omitted); see Bing v. Brio Sys., LLC, 959 F.3d 605, 616
(4th Cir. 2020). But, “in the relatively rare circumstances where facts sufficient to rule on an
affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss
filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc);
accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009).
Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint,” Richmond,
Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle

only applies . . . if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of
the complaint.’” Goodman, 494 F.3d at 464 (emphasis in Goodman) (quoting Forst, 4 F.3d at
250).
“Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts
are limited to considering the sufficiency of allegations set forth in the complaint and the
‘documents attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int’l, Ltd.,
780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co., 637 F.3d at 448).
Ordinarily, the court “may not consider any documents that are outside of the complaint, or not
expressly incorporated therein[.]” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th

Cir. 2013), abrogated on other grounds by Reed. v. Town of Gilbert, 576 U.S. 155 (2015); see
Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007).
But, under limited circumstances, when resolving a Rule 12(b)(6) motion, a court may
consider documents beyond the complaint without converting the motion to dismiss to one for
summary judgment. Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015).
In particular, a court may properly consider documents that are “explicitly incorporated into the
complaint by reference and those attached to the complaint as exhibits.” Goines, 822 F.3d at 166
(citation omitted); see also Six v. Generations Fed. Credit Union, 891 F.3d 508, 512 (4th Cir.
2018); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); U.S. ex rel. Oberg
v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014); Am. Chiropractic Ass’n
v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied, 543 U.S. 979 (2004);
Phillips v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999).
“[B]efore treating the contents of an attached or incorporated document as true, the district
court should consider the nature of the document and why the plaintiff attached it. Goines, 822 F.

3d at 167. “When the plaintiff attaches or incorporates a document upon which his claim is based,
or when the complaint otherwise shows that the plaintiff has adopted the contents of the document,
crediting the document over conflicting allegations in the complaint is proper.” Id. Conversely,
“where the plaintiff attaches or incorporates a document for purposes other than the truthfulness
of the document, it is inappropriate to treat the contents of that document as true.” Id.
A court may also “consider a document submitted by the movant that [is] not attached to
or expressly incorporated in a complaint, so long as the document was integral to the complaint
and there is no dispute about the document’s authenticity.” Goines, 822 F.3d at 166 (citations
omitted); see also Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert. denied,

__ U.S. __, 138 S. Ct. 558 (2017); Oberg, 745 F.3d at 136; Kensington Volunteer Fire Dep’t. v.
Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012). To be “integral,” a document must be one
“that by its ‘very existence, and not the mere information it contains, gives rise to the legal rights
asserted.’” Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602,
611 (D. Md. 2011) (citation omitted) (emphasis in original). See also Fed. R. Civ. P. 10(c) (“A
copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all
purposes.”).
Because plaintiff is self-represented, his submissions are liberally construed. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007); see Fed. R. Civ. P. 8(f) (“All pleadings shall be so construed as
to do substantial justice”); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims
of self-represented litigants are held “to less stringent standards than formal pleadings drafted by
lawyers”); accord. Bala v. Cmm’w of Va. Dep’t of Conservation & Recreation, 532 F. App’x 332,
334 (4th Cir. 2013). 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 v.

Baltimore Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (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)).
IV. Discussion
Defendants argue that plaintiff has failed to state a claim and that they are entitled to
immunity as to claims asserted against them in their official capacity and qualified immunity in all
other respects. ECF 39-1. For the reasons stated in the court’s Memorandum Opinion dated
October 3, 2022 (ECF 33), I agree that defendants are each entitled to dismissal of any official
capacity claims asserted against them. Id. at 11. But, I disagree with their contentions in all other

respects.
The Court previously rejected Defendant Hill’s contention that Pevia failed to state a claim
and that he was entitled to qualified immunity. ECF 33. Nevertheless, defendants reassert those
same arguments. See ECF 39-1. The reasoning I previously provided in finding Pevia stated an
Eighth Amendment claim as to Hill applies to each defendant.
A. Failure to State a Claim
After explaining the standard for assessing a motion to dismiss as well as the law
surrounding claims regarding the conditions of confinement, I stated, ECF 33 at 9-10:
Read liberally, Pevia claims that his conditions of confinement, being
forced to live with another inmate in a cell designed to hold only one inmate, has
caused him physical injury and has created a risk of harm. He names, among others,
defendant Hill, the Commissioner of Correction, as a person responsible for
creating and maintaining the allegedly unsafe condition of his confinement by
allowing the double celling at NBCI. Pevia identified the Commissioner of
Correction in at least one of the ARPs he filed regarding the conditions of his
confinement. See ECF 1 at 15.

Pevia also alleges in his opposition that NBCI was previously ordered to
discontinue double celling. ECF 30 at 2; see ECF 13-1 at 10 (Affidavit of Policarpio
Ispinoza regarding removal of top bunks from cells in order to convert cells from
double to single cells). A reasonable inference from Pevia’s Complaint is that Hill,
as the Commissioner of Correction, was aware of previous lawsuits, complaints,
and grievances regarding the double celling at NBCI and the allegedly unsafe
conditions it engendered. Viewed in the light most favorable to Pevia, the facts
could show that Pevia’s complaints regarding double celling showed a pervasive
and unreasonable risk of injury and Hill failed to take any action, which a fact finder
could conclude demonstrated either deliberate indifference or tacit authorization of
Pevia’s treatment at NBCI.
****

Liberally construed, Pevia alleges that Hill is responsible for the policies he
complains about regarding double celling and keeping inmates in their cells 22
hours each day. Pevia’s allegations are sufficient to survive the Motion.

In denying the earlier motion of Moyer, Bishop, Nines, and Whitemen, I said, in pertinent
part, ECF 18 at 13:
Liberally construed, plaintiff alleges that defendants Moyer, Bishop and
Nines are responsible for the policies he complains about regarding double celling
and keeping inmates in their cells 22 hours each day. Further, he alleges that
Whitemen, the housing unit officer, will not approve any “courtesy moves” to
alleviate time spent double celled.”

For the reasons explained in the court’s previous memoranda opinions (ECF 18 and ECF
33), I conclude that Pevia has stated an Eighth Amendment claim as to each named defendant with
respect to the alleged conditions of his confinement.
B. Qualified Immunity
In generally, defendants assert the defense of qualified immunity. But, they provide only
generic statements of the principles of qualified immunity and offer no substantive analysis of this
issue.
Notably, I previously rejected Hill’s qualified immunity defense. I reasoned, ECF 33 at

11-15.
“Qualified immunity bars § 1983 actions against government officials in
their individual capacities ‘unless (1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their conduct was clearly
established at the time.’” Barrett v. PAE Government Services, Inc., 975 F.3d 416,
428 (4th Cir. 2020) (quoting District of Columbia v. Wesby, ___ U.S. ___, 138 S.
Ct. 577, 589 (2018)) (cleaned up); see also Taylor v. Riojas, ___ U.S. ___, 141 S.
Ct. 52, 53 (2020); Halcomb v. Ravenell, 992 F.3d 316, 319 (4th Cir. 2021); Humbert
v. Mayor and City Council of Balt., 866 F.3d 546, 555 (4th Cir. 2017), cert. denied,
___ U.S. ___, 138 S. Ct. 2602 (2018); Osborne v. Georgiades, 679 F. App’x 234,
237 (4th Cir. 2017); Scinto v. Stansberry, 841 F.3d 219, 235 (4th Cir. 2016); Hunter
v. Town of Mocksville, 789 F.3d 389, 401 (4th Cir. 2015).

In Owens v. Balt. City State's Attorney’s Office, 767 F.3d 379, 395 (4th Cir.
2014), cert. denied sub nom. Balt. City Police Dep’t v. Owens, 575 U.S. 983 (2015),
the Fourth Circuit reiterated: “Qualified immunity protects government officials
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.’” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Qualified immunity turns on the “objective reasonableness of an official’s
conduct, as measured by reference to clearly established law.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). An officer who makes an honest but
objectively unreasonable mistake is not protected by qualified immunity. Rather,
the doctrine protects officials “‘who commit constitutional violations but who, in
light of clearly established law, could reasonably believe that their actions were
lawful.’” Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013) (citation omitted);
accord Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012).

The Fourth Circuit has explained: “In determining whether defendant
government officials are protected by qualified immunity, the court considers both
‘whether a constitutional right [was] violated on the facts alleged’ and ‘whether the
right was clearly established’ at the time of the conduct in question.” Scinto, 841
F.3d at 235 (citations omitted); see also Cannon v. Village of Bald Head Island,
891 F.3d 489, 497 (4th Cir. 2018). Thus, the qualified immunity analysis involves
two inquiries: (1) whether the facts alleged, “[t]aken in the light most favorable to
the party asserting the injury, . . . show the officer’s conduct violated a
constitutional [or statutory] right,” Saucier v. Katz, 533 U.S. 194, 201 (2001); and
(2) whether the right at issue “‘was clearly established in the specific context of the
case—that is, [whether] it was clear to a reasonable officer that the conduct in which
he allegedly engaged was unlawful in the situation he confronted.’” Merchant v.
Bauer, 677 F.3d 656, 662 (4th Cir. 2012) (quoting Figg v. Schroeder, 312 F.3d 625,
635 (4th Cir. 2002)). The “two inquiries . . . may be assessed in either sequence.”
Merchant, 677 F.3d at 661-62.

Qualified immunity is an affirmative defense. Ridpath v. Bd. of Governors
Marshall Univ., 447 F.3d 292, 305 (4th Cir. 2006). But, it does not merely provide
a defense to liability. Rather, it provides “immunity from suit . . . .” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985) (emphasis in Mitchell); see Gilliam v. Sealey,
932 F.3d 216, 229 (4th Cir. 2019), cert. denied, ___U.S.___, 140 S.Ct. 2641 (2020);
see also Ussery v. Mansfield, 786 F.3d 332, 337 (4th Cir. 2015). Accordingly, the
immunity is “‘effectively lost if a case is erroneously permitted to go to trial.’” Id.
(quoting Mitchell, 472 U.S. at 526).

The doctrine of qualified immunity “balances two important interests—the
need to hold public officials accountable when they exercise power irresponsibly
and the need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009);
see also Barrett, 975 F.3d at 428-29; Betton v. Belue, 942 F.3d 184, 190 (4th Cir.
2019); Wilson v. Prince George's Cty., 893 F.3d 213, 219 (4th Cir. 2018); Smith v.
Ray, 781 F.3d 95, 100 (4th Cir. 2015). Countless cases support these principles.
See, e.g., Wesby, 137 S. Ct. at 589; Reichle v. Howards, 566 U.S. 658, 664 (2012);
Saucier v. Katz, 533 U.S. 194, 206 (2001); Robertson v. Anderson Mill Elem.
School, 989 F.3d 282, 288 (4th Cir. 2021); Ray v. Roane, 948 F.3d 222, 229-30 (4th
Cir. 2020); Hupp v. Cook, 931 F.3d 307, 317 (4th Cir. 2019); Attkisson v. Holder,
925 F.3d 606, 623 (4th Cir. 2019); Williamson v. Stirling, 912 F.3d 154, 186 (4th
Cir. 2018); Wilson, 893 F.3d at 219; Sims v. Labowitz, 885 F.3d 254, 260 (4th Cir.
2018); Spivey v. Norris, 731 F. App’x 171, 175 (4th Cir. 2018); O'Neal v. Rollyson,
729 F. App’x 254, 255 (4th Cir. 2018) (per curiam); Crouse v. Town of Moncks
Corner, 848 F.3d 576, 582-83 (4th Cir. 2017); Occupy Columbia v. Haley, 738 F.3d
107, 118 (4th Cir. 2013); Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013);
Merchant v. Bauer, 677 F.3d 656, 661 (4th Cir. 2012), cert. denied, 568 U.S. 1068
(2012).

“The plaintiff bears the burden of proof on the first question—i.e., whether
a constitutional violation occurred . . . . [and] [t]he defendant bears the burden of
proof on the second question—i.e., entitlement to qualified immunity.” Henry v.
Purnell, 501 F.3d 374, 377–78 (4th Cir. 2007) (internal citations omitted); see also
Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022). In other words, “[b]ecause an
official ‘who performs an act clearly established to be beyond the scope of his
discretionary authority is not entitled to claim qualified immunity,’ the defendant
bears the initial burden ‘of demonstrating that the conduct of which the plaintiff
complains falls within the scope of the defendant’s duties.’” Purnell, 501 F.3d at
377 n.2 (citation omitted).

As indicated, if an officer is shown to have violated the rights of a plaintiff,
the court must “evaluate whether the right at issue was ‘clearly established’ at the
time of the officer's conduct.” Wilson, 893 F.3d at 219. This is a question of law for
the court to resolve. Ray, 948 F.3d at 228; Pritchett v. Alford, 973 F.2d 307, 312
(4th Cir. 1992). Notably, “even when the facts in the record establish that the
officer’s conduct violated a plaintiff’s constitutional rights, the officer still is
entitled to immunity from suit ‘if a reasonable person in the [officer’s] position
could have failed to appreciate that his conduct would violate those rights.’”
Wilson, 893 F.3d at 219 (quoting Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th
Cir. 1991)); see also Williams v. Strickland, 917 F.3d 763, 768 (4th Cir. 2019);
Greene v. Feaster, 733 F. App’x 80, 82 (4th Cir. 2018) (per curiam) (“Even when
a prison official [is shown to have violated a constitutional right of a plaintiff],
qualified immunity will shield him from liability as long as his ‘conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.’”) (quoting Goines, 822 F.3d at 170).

The second inquiry “turns on the ‘objective legal reasonableness’ of the
action, assessed in light of the legal rules that were ‘clearly established’ at the time
it was taken.” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (citing
Anderson v. Creighton, 483 U.S. 635, 639 (1987)). If the law at the time of the
alleged violation was not “clearly established,” the official will be entitled to
qualified immunity because “an official could not reasonably be expected to
anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that
the law forbade conduct not previously identified as unlawful.” Harlow, 457 U.S.
at 818. On the other hand, “[i]f the law was clearly established, the immunity
defense ordinarily should fail, since a reasonably competent public official should
know the law governing his conduct.” Id. at 818-19.

Plaintiff alleges that he has been double-celled for 22 hours a day in a cell
designed for one person. Hill contends that the NBCI cell has 52.9 square feet of
unencumbered space. ECF 28-1 at 15. Therefore, Hill argues that the conditions of
confinement were within constitutional “boundaries.”

Notably, a “question of material fact” as to whether “‘the conduct allegedly
violative of the right actually occurred . . . must be reserved for trial.’” Willingham
v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005) (citation omitted). A dispute of
material fact is not appropriate for resolution, either at a motion to dismiss or on
summary judgment.

Because I cannot resolve the factual dispute at this juncture, the issue of
qualified immunity is premature.
The same rationale applies to the qualified immunity argument now advanced by all of the
defendants. Defendants have added no additional evidence to the record that would alter this
finding or allow for resolution of the factual dispute. Rather, defendants present a boilerplate
qualified immunity argument without application of the law to the facts.
For a prison official to be found liable under the Eighth Amendment for denial of humane

conditions of confinement, “the official [must know] of and disregard[] an excessive risk to inmate
. . . safety; the official must both be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan,
511 U.S. 825, 837 (1994); see also Rich v. Bruce, 129 F.3d 336, 338 (4th Cir. 1997). A two-part
inquiry that includes both an objective and a subjective component must be satisfied before
liability is established. Farmer, 511 U.S. at 834, 837. In the context of an Eighth Amendment
conditions of confinement claim, a prisoner must either “produce evidence of a serious or
significant physical or emotional injury resulting from the challenged conditions,” or “demonstrate
a substantial risk of such serious harm resulting from the prisoner’s unwilling exposure to the

challenged conditions.” Shakka v. Smith 71 F. 3d 162, 166 (4th Cir. 1996).
Plaintiff alleges that he has been double-celled for 22 hours a day in a cell designed for one
person. He contends that being forced to live with another inmate in a cell designed to hold only
one inmate has caused him physical injury and has created a risk of harm. Pevia also alleges in his
opposition that NBCI was previously ordered to discontinue double celling. ECF 30 at 2; see ECF
13-1 at 10.
Previously, Hill argued that the cell is constitutionally sufficient based on its size. ECF 28-
1 at 15. Defendants do not provide evidence as to the amount of unencumbered space in the cell
where Pevia was doubled cell or provide any information regarding his out-of-cell activity.
A reasonable inference from Pevia’s assertions is that defendants were aware of previous
lawsuits, complaints, and grievances regarding the double celling at NBCI and the allegedly unsafe
conditions it created. Where, as here, a plaintiff has ‘“made a showing sufficient to’ demonstrate
an intentional violation of the Eighth Amendment, ‘they have also made a showing sufficient to
overcome any claim to qualified immunity.’” Thorpe v. Clarke, 37 F.4th 926, 934 (4th Cir. 2022)

(quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n. 15 (3d Cir. 2001)). As the Court in Thorpe
reiterated, “qualified immunity does not shield ‘those who knowingly violate the law.’” Id.
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). “And because the Eighth Amendment’s
deliberate-indifference standard requires knowing conduct, an official who was deliberately
indifferent could not believe ‘that [their] actions comported with clearly established law.’” Pfaller
v. Amonette, 55 F.4th 436, 446 (4th Cir. 2022) (quoting Thorpe 37 F.4th at 937) (alteration in
Pfaller).
Defendants cannot dispute that there is clearly established law regarding the conditions of
confinement of inmates housed in double cells for prolonged periods of time, which can constitute

a violation of the Eighth Amendment. As to whether such a violation has occurred, as previously
discussed, there are genuine issues of material fact that warrant denial of a motion to dismiss and
which would also preclude the grant of qualified immunity at this time.
Notably, a “question of material fact” as to whether “‘the conduct allegedly violative of the
right actually occurred . . . must be reserved for trial.’” Willingham v. Crooke, 412 F.3d 553, 559
(4th Cir. 2005) (citation omitted). A dispute of material fact is not appropriate for resolution on
summary judgment.
IV. Conclusion
For the foregoing reasons, defendants’ motion seeking dismissal is GRANTED as to any
official capacity claims and DENIED in all other respects. Plaintiff’s motions to uphold original
decision (ECF 41) and to supplement his opposition response (ECF 42) are denied, as moot. A
separate Order follows.

May 30, 2023 /s/
Date Ellen L. Hollander
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10208515. Public record. Not legal advice.