# Moss v. Director Gail Watts

> District Court, D. Maryland · July 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10208737

## Case

- **Court:** District Court, D. Maryland
- **Decided:** July 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

TYRONE MOSS, *

Plaintiff, *

v. * Civ. No. DLB-22-2300

DIRECTOR GAIL WATTS and *
OFFICER IJIWOLE,
*
Defendants.

MEMORANDUM
Self-represented plaintiff Tyrone Moss, currently incarcerated at Baltimore County
Detention Center, filed suit for damages pursuant to 42 U.S.C. § 1983 against Director Gail Watts
and Officer Ijiwole. ECF 1. Moss alleges that, on or about June 18, 2022, Officer Ijiwole opened
his cell door to allow other inmates to enter, and the inmates stabbed, assaulted, and stomped on
him, causing him severe bodily injuries. Id. at 2; ECF 12 (supp. correcting date of assault). The
defendants moved to dismiss the complaint because Moss has not exhausted his administrative
remedies, he has failed to state a claim, and they are entitled to qualified immunity. ECF 13, 13-
1. Moss filed correspondence arguing that the defendants’ motion should not be granted, which
the Court construes as an opposition. ECF 18, 19. No hearing on the motion is necessary. See
Loc. R. 105.6. For the reasons stated below, the defendants’ motion is denied. Also pending is
Moss’s motion for appointment of counsel, ECF 9, which is granted.
I. Background
Moss alleges that, on or about June 18, 2022, he was stabbed, assaulted, and stomped on
by several other inmates after Officer Ijiwole opened the door to his cell and allowed the inmates
to enter. ECF 1, at 2; ECF 12. He was speaking with someone inside his cell when he was attacked
from behind by several inmates, who beat him with a plastic food tray. ECF 1, at 4. He recalls
realizing his forehead was “busted open and blood was leaking constantly” and that he was feeling
lightheaded and losing his vision. Id. The last thing he remembers before passing out was trying
to ask someone to get a tier officer. Id. He did not wake up until after he had been hospitalized
for two days. Id. When at the hospital, he was continuously on medication and does not remember

the “hospital process.” Id. The complaint, which inmate Terrence Hammock drafted and Moss
signed, states that Hammock believes that the incident caused Moss to be brain damaged and that
“now his mind is like a 5 year old kid.” Id. at 1, 7. Moss lost parts of his memory due to the
severity of the assault and has limited memory of what happened. ECF 1, at 3. Moss alleges that,
before the assault, he had “multiple altercations with inmates to the point [he] let the floor officer
and officer working inside the bubble at the time [know about the altercations] but they [decided
that] since [he] wasn’t in a physical altercation at the time, [i]t wasn’t that important.” Id. at 3.
Moss also alleges that the tier where the incident occurred, Unit 3C, is particularly dangerous
because the cells lack an emergency button. Id. at 7.

II. Standard of Review
The defendants move to dismiss the complaint for failure to state a claim. Under Rule
12(b)(6), a party may seek dismissal for failure “to state a claim upon which relief can be granted.”
Robertson v. Anderson Mill Elementary Sch., 989 F.3d 282, 290 (4th Cir. 2021) (quoting Fed. R.
Civ. P. 12(b)(6)). To survive the challenge, the plaintiff must have pleaded facts demonstrating
he has a plausible right to relief from the Court. Lokhova v. Halper, 995 F.3d 134, 141 (4th Cir.
2021) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A plausible claim is more than merely
conceivable or speculative. See Holloway v. Maryland, 32 F.4th 293, 299 (4th Cir. 2022). The
allegations must show there is “more than a sheer possibility that the defendant has acted
unlawfully.” Int’l Refugee Assistance Project v. Trump, 961 F.3d 635, 648 (4th Cir. 2020) (quoting
Iqbal, 556 U.S. at 678)). But the claim does not need to be probable, and the pleader need not
show “that alternative explanations are less likely” than their theory. Jesus Christ is the Answer
Ministries, Inc. v. Balt. Cnty., Md., 915 F.3d 256, 263 (4th Cir. 2019) (quoting Houck v. Substitute
Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015)).

When ruling on a Rule 12(b)(6) motion, the Court must accept the allegations as true and
draw all reasonable inferences in favor of the pleader. Williams v. Kincaid, 45 F.4th 759, 765, 777
(4th Cir. 2022). But the Court does not accept “legal conclusions couched as facts or unwarranted
inferences, unreasonable conclusions, or arguments.” United States ex rel. Taylor v. Boyko, 39
F.4th 177, 189 (4th Cir. 2022) (quoting United States ex rel. Nathan v. Takeda Pharms. N. Am.,
Inc., 707 F.3d 451, 455 (4th Cir. 2013)). Merely reciting a claim’s elements “and supporting them
by conclusory statements does not meet the required standard.” Sheppard v. Visitors of Va. State
Univ., 993 F.3d 230, 234 (4th Cir. 2021) (quoting ACA Fin. Guar. Corp. v. City of Buena Vista,
Va., 917 F.3d 206, 212 (4th Cir. 2019)). On a Rule 12(b)(6) motion, the Court “does not resolve

contests surrounding facts, the merits of a claim, or the applicability of defenses.” Ray v. Roane,
948 F.3d 222, 226 (4th Cir. 2020) (quoting Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013)).
“[P]ro se filings are ‘h[e]ld to less stringent standards than formal pleadings drafted by
lawyers.’” Folkes v. Nelsen, 34 F.4th 258, 272 (4th Cir. 2022) (quoting Haines v. Kerner, 404
U.S. 519, 520 (1972)). Accordingly, the Court must construe pro se pleadings liberally. Bing v.
Brivo Sys., LLC, 959 F.3d 605, 618 (4th Cir. 2020), cert. denied, 141 S. Ct. 1376 (2021). But
“liberal construction does not require [the Court] to attempt to ‘discern the unexpressed intent of
the plaintiff[;]’” the Court need only “determine the actual meaning of the words used in the
complaint.” Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013) (quoting Laber v. Harvey, 438
F.3d 404, 413 n.3 (4th Cir. 2006) (en banc)). Thus, a pro se complaint “still ‘must contain enough
facts to state a claim for relief that is plausible on its face.’” Thomas v. The Salvation Army S.
Territory, 841 F.3d 632, at 637 (4th Cir. 2016) (quoting King v. Rubenstein, 825 F.3d 206, 212,
214 (4th Cir. 2016) (quoting Twombly, 550 U.S. at 570)).
III. Discussion

A. Exhaustion
The defendants assert that Moss’s complaint should be dismissed because he failed to
exhaust his administrative remedies. ECF 13-1, at 4. 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). Exhaustion under § 1997e(a) is mandatory, and therefore the
plaintiff must exhaust his available administrative remedies before this Court will hear his claim.
See Ross v. Blake, 578 U.S. 632 (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).
An inmate need only exhaust “available” remedies. 42 U.S.C. § 1997e(a); see Ross, 578
U.S. at 635–36. 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 v.
Bennette, 517 F.3d 717, 725 (4th Cir. 2008). “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, 578 U.S. at 644). “[F]ailure to exhaust available administrative remedies is
an affirmative defense, not a jurisdictional requirement, and thus inmates need not plead
exhaustion, nor do they bear the burden of proving it.” Moore, 517 F.3d at 725 (citing Jones v.
Bock, 549 U.S. 199, 210–24 (2007)). The Court will dismiss a complaint for failure to exhaust
only if “the alleged facts in the complaint, taken as true, prove that the inmate failed to exhaust his
administrative remedies.” Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017).

In Moss’s complaint, he checked the box on the form indicating that he did not file a
grievance as required by the prison’s administrative remedy procedure. ECF 1, at 2. This
concession, according to the defendants, establishes Moss has not exhausted his administrative
remedies. But the defendants ignore the other allegations in his complaint that suggest he could
not timely file a grievance because he was unconscious in the hospital after the assault for at least
two days, has limited memory of the assault, and is possibly “brain damaged.” ECF 1. They also
ignore the fact that Moss states in his complaint that another inmate had to draft the complaint for
him because Moss’s “mind is like a 5 year old kid.” ECF 1, at 7. The Court cannot determine, on
the face of the complaint, that Moss failed to exhaust his administrative remedies.

The defendants’ motion to dismiss the complaint for failure to exhaust administrative
remedies is denied.
B. Failure to State a Claim
The defendants assert that Moss has not stated a constitutional claim that they were
deliberately indifferent to a substantial risk of serious harm. ECF 13-1, at 4. “The Eighth
Amendment protects prisoners from ‘unnecessary and wanton infliction of pain.’” Thompson v.
Commonwealth of 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)). The protections afforded convicted
prisoners under the Eighth Amendment extend to pretrial detainees through the Due Process
Clause of the Fourteenth Amendment. Young v. City of Mt. Ranier, 238 F.3d 567, 575 (4th Cir.

2001) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 243–44 (1983)). Accordingly, the
deliberate indifference standard applies “where prison officials are accused of deliberate
indifference to a substantial risk of serious harm to prison inmates” or pretrial detainees. See
Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (citing Young, 238 F.3d at 575).
To prevail on a claim for failure to protect from attack by another inmate or detainee, a plaintiff
must show that a prison official “kn[ew] of and disregard[ed] an excessive risk to inmate health
and safety; the official must both [have been] aware of the facts from which the inference could
be drawn that a substantial risk of serious harm exist[ed], and he must also [have] drawn the
inference.” Farmer, 511 U.S. at 837–38; see also Thompson, 878 F.3d at 97–98.

The defendants argue that Moss’s claim fails because he did not allege that they knew about
any specific threat against him, and that at most, they were negligent. ECF No. 13-1, at 4–5. The
Court disagrees. Moss alleges that, before the attack, he had repeatedly complained to the floor
officer about multiple altercations between himself and other inmates. ECF 1, at 3. Additionally,
Moss alleges that Officer Ijiwole “open[ed] up his door for the other inmates to enter his cell.”
ECF 1, at 2. Further, he alleges that the inmate handbook states that “no inmates are to enter
another inmate’s cell or they will receive an infraction and all officers must protect all inmates
from the assault of other inmates.” Id. at 6. Finally, he alleges that he endured a severe beating
by numerous inmates and does not recall anyone coming to his assistance before he passed out.
Accepting his allegations as true, the Court finds that Moss has alleged that Officer Ijiwole
purposefully, and in violation of safety regulations, allowed several inmates into his cell so that
they could assault him and that Officer Ijiwole did not respond to Moss’s calls for help. Moss
states a claim of deliberate indifference to a risk of serious harm against Officer Ijiwole.
As to Director Watts, Moss alleges that she was deliberately indifferent to a risk of serious

harm to him because the cells on Unit 3C did not have emergency buttons, which made them
particularly dangerous for inmates. ECF 1, at 7. Even when the Court construes his complaint
liberally and in the light most favorable to him, Moss has not sufficiently alleged that Director
Watts knew that having cells without emergency buttons was likely to result in serious physical
injury to him. The claim against Director Watts is dismissed without prejudice.
C. Qualified Immunity
The defendants assert that they are entitled to qualified immunity for their actions based on
Moss’s failure to state a constitutional claim. ECF 13-1, at 5. Qualified immunity is an affirmative
defense to § 1983 claims that “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.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To determine whether a defendant is
entitled to qualified immunity,” courts ask two questions: “(1) Has the plaintiff alleged a violation
of a federal right? (2) Was the right at issue clearly established at the time of the alleged violation?”
Burns-Fisher v. Romero-Lehrer, 57 F.4th 421, 424 (4th Cir. 2023) (quoting Turner v. Thomas, 930
F.3d 640, 644 (4th Cir. 2019)). The Court may address either question first, and a “defendant
official is entitled to qualified immunity if either prong is not satisfied.” Williamson v. Stirling,
912 F.3d 154, 186 (4th Cir. 2018) (quoting Pearson, 555 U.S. at 236). Moss has alleged a violation
of his constitutional rights, and his claim will not be dismissed on qualified immunity grounds at
this juncture. See Pearson, 555 U.S. at 232.
IV. Conclusion
Moss has adequately alleged a constitutional claim under § 1983 against Officer Ijiwole.
The defendants’ motion to dismiss is denied as to the claim against Officer Ij1wole and granted as
to the claim against Director Watts, which is dismissed without prejudice. Moss’s motion for
appointment of counsel is granted. A separate Order follows.

July 27, 2023 “us CG )
Date D h L. Boardman
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10208737. Public record. Not legal advice.