Akinola

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

RILWAN AKINOLA

:

v. : Civil Action No. DKC 22-0657

:

CORIZON HEALTH SERVICE, et al.

:

MEMORANDUM OPINION

Presently pending and ready for resolution in this civil

rights case brought by a former prisoner is the motion to stay

filed by Defendant Amy Stafford-Shroyer, (ECF No. 73), and the

motion to dismiss or, in the alternative, for summary judgment

filed by Defendant Correctional Officer Darrell Lavin, (ECF No.

81). The issues have been briefed, and the court now rules, no

hearing being deemed necessary. Local Rule 105.6. For the

following reasons, the motion to stay will be denied as moot, and

the motion to dismiss or for summary judgment will be denied.

I. Background

The facts of this case were described in an earlier opinion,

(ECF No. 31), after Plaintiff Rilwan Akinola (“Plaintiff” or “Mr.

Akinola”) filed his first complaint pro se. In light of counsel’s

appointment to represent Mr. Akinola and the subsequent filing of

an amended complaint, the court will provide a summary of the facts

relevant to the pending motions.

On the morning of September 23, 2021, while confined at

Western Correctional Institution (“WCI”), Mr. Akinola and his

cellmate, Michael Wilson, were escorted by Officer Lavin to use

the showers. (ECF No. 70 ¶¶ 1, 11, 13). To reach the showers,

the men had to walk up a metal staircase. (Id. ¶ 13). After the

men showered, Officer Lavin returned to escort the men back to

their cell, and Mr. Wilson noted to Mr. Akinola that Officer Lavin

was not accompanied by another officer. (Id. ¶ 16). Mr. Akinola

understood Mr. Wilson’s comment to be a reference to the practice

and policy at WCI that one escorting officer accompanies each

shackled inmate during transport, “with the officer physically

holding and supporting the inmate.” (Id. ¶¶ 17-18). Officer Lavin

placed both men in handcuffs, with their hands shackled behind

their backs, and opened the gate to leave the shower area. (Id.

¶ 19). Mr. Akinola asked Officer Lavin “it’s only you – where is

the other officer at[?]” (Id. ¶ 21). According to Mr. Akinola,

Officer Lavin flippantly responded to Mr.

Akinola, “you’ll be fine,” and directed Mr.

Akinola to “come out” through the open gate;

Officer Lavin backed up this verbal command

with a hand gesture indicating that Mr.

Akinola was under orders to walk. In response

to Mr. Akinola’s mention of the fact that

there was no second officer to escort him,

Officer Lavin made clear that he was

nonetheless ordering Mr. Akinola to walk out

of the shower and down the stairs: “I’m giving

you a direct order,” said Officer Lavin.

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(Id. ¶ 23). Officer Lavin took hold of Mr. Wilson to escort him,

leaving Mr. Akinola without an escort. (Id. ¶ 24). Officer Lavin

again commanded Mr. Akinola to walk down the stairs unescorted,

repeatedly saying “go ahead.” (Id. ¶ 25). Officer Lavin was

escorting Mr. Wilson behind Mr. Akinola and moving quickly, causing

Mr. Wilson to push up against Mr. Akinola’s heels. (Id. ¶ 27).

Mr. Wilson told Officer Lavin to slow down because the area was

wet from the shower, but Officer Lavin “did not withdraw his

order.” (Id.). Mr. Akinola began walking down the metal

staircase. His shoes were wet from the shower, and the handcuffs

behind his back “prevented him from balancing and from grabbing

hold of the rail.” (Id. ¶ 29). Mr. Akinola “took 3-4 steps,

slipped, and fell. With his hands shackled behind his back, he

could not break this fall. He fell all the way to the bottom of

the stairwell—roughly 20 steps.” (Id.). Mr. Akinola first landed

on his left knee, which “immediately began to swell up and to cause

him severe pain.” (Id. ¶ 30). He also injured his shoulders,

back, arm, hip, ankle, and leg in his fall. (Id.).

Officer Lavin ordered Mr. Akinola to “get up,” and Mr. Akinola

protested, “I’m in pain.” (Id. ¶ 31). “Officer Lavin forced him

to get up anyway, and exacerbated the pain to Mr. Akinola’s injured

knee by forcing him to walk (this time escorted by Officer Lavin)

to his cell. Mr. Akinola could barely walk, and doing so, even

3

with an escort, exacerbated his existing pain.” (Id.). Mr.

Akinola told Officer Lavin that he was “in severe pain and needed

immediate medical attention.” (Id. ¶ 32). Officer Lavin

“indicated he would arrange for medical attention” but did not

immediately return. (Id.). Mr. Akinola was in excruciating pain

in his cell for approximately one to two hours; the pain was

apparent enough to Mr. Wilson that he began banging on the door of

their cell to get an officer’s attention. (Id.). Officer Lavin

returned after an hour or two and “again said that he would call

medical; he ‘was working on it.’” (Id.). It took another hour or

two before Mr. Akinola received any medical attention.1 (Id.).

Mr. Akinola’s initial complaint was docketed in this court on

March 17, 2022, naming Officer Lavin, Nurse Amy Stafford-Shroyer,

and Corizon Health, Inc. as Defendants.2 (ECF No. 1-1).

Officer Lavin filed a motion to dismiss, or in

the alternative, for summary judgment with

respect to the claims against him on August 3,

2022. (ECF No. 10). The court granted the

motion, construed as a motion to dismiss, on

February 22, 2023, and dismissed all claims

against Officer Lavin. (ECF Nos. 31-32). Mr.

Akinola, now represented by counsel, filed [a]

1 Mr. Akinola’s time in the medical unit is related to his

claim against Ms. Stafford-Shroyer, who was the nurse at that time.

These facts are not relevant to the pending motions.

2 In March 2023, the court stayed the action as to Corizon

Health, Inc. because it had “filed bankruptcy proceedings in which

an automatic stay [had] been issued.” (ECF No. 34). Plaintiff’s

amended complaint lists only Officer Lavin and Amy Stafford-

Shroyer as defendants.

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motion for leave to amend the complaint to re-

add the claims against Officer Lavin on

September 13, 2024. (ECF No. 57).

(ECF No. 68, at 1-2). The court granted the motion to amend the

complaint on May 7, 2025, (ECF No. 68), and Mr. Akinola’s operative

amended complaint was docketed the next day, (ECF No. 70). Mr.

Akinola’s amended complaint brings two claims against Officer

Lavin - a 42 U.S.C. § 1983 claim for violating the Eighth

Amendment, (Count I), and a gross negligence claim, (Count II) –

and one count against Ms. Stafford-Shroyer, also under 42 U.S.C.

§ 1983 for violating the Eighth Amendment (Count III). Ms.

Stafford-Shroyer filed a motion to stay on June 6, 2025, (ECF No.

73), which Plaintiff opposed in a response filed on June 20, 2025,

(ECF No. 75). Ms. Stafford-Shroyer did not file a reply. Officer

Lavin filed a motion to dismiss or, in the alternative, for summary

judgment on August 6, 2025. (ECF No. 81). Mr. Akinola filed an

opposition on August 29, 2025, (ECF No. 87), and Officer Lavin

filed a reply on September 18, 2025, (ECF No. 91), with an

additional exhibit the next day. (ECF No. 92-1).

II. Standard of Review

Defendant moves to dismiss under Fed.R.Civ.P. 12(b)(6) or, in

the alternative, for summary judgment under Fed.R.Civ.P. 56. The

issues raised implicate multiple standards of review. As will be

discussed, the arguments concerning exhaustion of administrative

remedies under the Prison Litigation Reform Act (“PLRA”) and

5

Maryland Prison Litigation Act (“MPLA”) will be reviewed under

Fed.R.Civ.P. 56(a), while the rest of the arguments will be

considered under Fed.R.Civ.P. 12(b)(6).

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the

sufficiency of the complaint. Presley v. City of Charlottesville,

464 F.3d 480, 483 (4th Cir. 2006). The court “must accept the

complaint’s factual allegations as true and construe the facts in

the light most favorable to the plaintiff.” Barnett v. Inova

Health Care Servs., 125 F.4th 465, 469 (4th Cir. 2025) (citing

Barbour v. Garland, 105 F.4th 579, 589 (4th Cir. 2024)). A

complaint must only satisfy Rule 8(a)(2), which requires a “short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[W]here the well-

pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged—but it has

not ‘show[n]’—that the pleader is entitled to relief.’” Ashcroft

v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Fed.R.Civ.P. 8(a)(2)).

A Rule 8(a)(2) “showing” requires “stat[ing] a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the

reasonable inference that defendant is liable for the misconduct

alleged.” Mays v. Sprinkle, 992 F.3d 295, 299–300 (4th Cir. 2021)

6

(quoting Iqbal, 556 U.S. at 678). Legal conclusions couched as

factual allegations are insufficient, Iqbal, 556 U.S. at 678, as

are conclusory factual allegations devoid of any reference to

actual events, United Black Firefighters of Norfolk v. Hirst, 604

F.2d 844, 847 (4th Cir. 1979).

Summary judgment is appropriate under Fed.R.Civ.P. 56(a) when

there is no genuine dispute as to any material fact, and the moving

party is entitled to judgment as a matter of law. A fact is

material if it “might affect the outcome of the suit under the

governing law.” Libertarian Party of Va. v. Judd, 718 F.3d 308,

313 (4th Cir. 2013) (quoting Henry v. Purnell, 652 F.3d 524, 548

(4th Cir. 2011) (Shedd, J., dissenting)). A dispute about a

material fact is genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When evaluating a

motion for summary judgment, the “judge’s function is not himself

to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Id. at

249. Accordingly, “the judge must ask himself not whether he

thinks the evidence unmistakably favors one side or the other but

whether a fair-minded jury could return a verdict for the

[nonmoving party] on the evidence presented.” Id. at 252.

7

When ruling on a motion for summary judgment, the court must

construe the facts alleged in the light most favorable to the party

opposing the motion. See Scott v. Harris, 550 U.S. 372, 378

(2007); Emmett v. Johnson, 532 F.3d 291, 297 (2008). A party who

bears the burden of proof on a particular claim must factually

support each element of his or her claim. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). “[A] complete failure of proof

concerning an essential element. . . necessarily renders all other

facts immaterial.” Id. Thus, on those issues on which the

nonmoving party will have the burden of proof, it is his or her

responsibility to confront the motion for summary judgment with an

affidavit or other similar evidence in order to show the existence

of a genuine issue for trial. See Anderson, 477 U.S. at 254;

Celotex Corp., 477 U.S. at 324.

A “party cannot create a genuine dispute of material fact

through mere speculation or compilation of inferences.” Chung

Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citing Deans

v. CSX Transp., Inc., 152 F.3d 326, 330–31 (4th Cir. 1998); Beale

v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)). The court has an

affirmative obligation to prevent factually unsupported claims and

defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774,

778–79 (4th Cir. 1993) (quoting Felty v. Graves-Humphreys Co., 818

F.2d 1126, 1128 (4th Cir. 1987)).

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III. Analysis

Apart from the question of administrative exhaustion, the

court will consider all issues on a motion to dismiss. The court

will deny summary judgment on the administrative exhaustion issues

and deny dismissal on all other grounds raised by Defendant.

A. Motion to Dismiss or Summary Judgment

When a party moves to dismiss or, in the alternative, for

summary judgment, it invokes the court’s discretion under

Fed.R.Civ.P. 12(d).

This Rule provides that when “matters outside

the pleadings are presented to and not

excluded by the court, the [Rule 12(b)(6)]

motion must be treated as one for summary

judgment under Rule 56.” Fed.R.Civ.P. 12(d).

The Court “has ‘complete discretion to

determine whether or not to accept the

submission of any material beyond the

pleadings that is offered in conjunction with

a Rule 12(b)(6) motion and rely on it, thereby

converting the motion, or to reject it or

simply not consider it.’” Wells-Bey v. Kopp,

No. [12-cv-2319-ELH], 2013 WL 1700927, at *5

(D.Md. Apr. 16, 2013) (quoting 5C Wright &

Miller, Federal Practice & Procedure § 1366,

at 159 (3d ed. 2004, 2012 Supp.)).

The United States Court of Appeals for 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 “in the alternative” as

one for summary judgment and submits matters

outside the pleadings for the court’s

consideration, the parties are deemed to be on

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notice that conversion under Rule 12(d) may

occur. See Moret v. Harvey, 381 F.Supp.2d

458, 464 (D.Md. 2005).

Jackson v. Sagal, 370 F.Supp.3d 592, 598 (D.Md. 2019). For the

party opposing summary judgment to adequately raise that it has

not had a sufficient opportunity for discovery, “the non-movant

must typically file an affidavit or declaration under Rule 56(d),

explaining the ‘specified reasons’ why ‘it cannot present facts

essential to justify its opposition.’” Id. (quoting Fed.R.Civ.P.

56(d)).

Plaintiff’s counsel submitted a declaration pursuant to Rule

56(d) explaining the specific pieces of evidence they seek from

discovery. (ECF No. 87-5). Plaintiff seeks to depose and possibly

obtain written discovery from both Officer Lavin and Michael

Wilson, Plaintiff’s cellmate at the time. (Id. at 3-4). Plaintiff

argues this discovery is necessary to develop the factual record

in the face of the transcript of the administrative hearing,

produced by the Maryland Department of Public Safety and

Correctional Services, where Plaintiff was not represented by

counsel and sought to examine Officer Lavin. (Id. at 3).

Plaintiff also seeks discovery from medical experts about the

extent of his injury and any impact from delayed medical care.

(Id. at 5). Because of the outstanding factual questions, the

recent appointment of counsel, and the clear request for discovery,

10

the court will decide the motion on a motion to dismiss standard

for all issues, with the exception of the failures to exhaust

administrative remedies.

Multiple issues can implicate multiple standards of review.

Johnson v. Maryland Dep't of Lab., Licensing, & Regul., 386

F.Supp.3d 608, 612-13 (D.Md. 2019). Failure to exhaust

administrative remedies is an affirmative defense, and not part of

the Plaintiff’s pleading burden. Analysis under the summary

judgment standard for these issues is therefore appropriate. Id.

at 614.

B. Administrative Exhaustion under the PLRA (Count I)

Officer Lavin argues that Plaintiff’s amended complaint

should be dismissed pursuant to the PLRA because he did not

administratively exhaust his claims before filing this lawsuit.

(ECF No. 81-1, at 10). Officer Lavin argues that, under the prison

mailbox rule, Plaintiff filed his initial complaint the day he

signed it, which was four days before his administrative remedies

were exhausted. (Id. at 13). Mr. Akinola counters on two grounds:

1) that the court should decline to follow the prison mailbox rule

in this context, and 2) that the PLRA exhaustion requirement is

not applicable because Plaintiff filed his amended complaint after

he was no longer incarcerated. (ECF No. 87, at 16-23).

The parties agree that Mr. Akinola pursued the administrative

grievance process, and on some of the relevant portions of the

11

timeline. (See ECF Nos. 81-1, at 13; 87, at 21-22). The record

is unclear and somewhat confused because Mr. Akinola made denial

of medical treatment claims against both correctional and medical

staff and the Inmate Grievance Office (“IGO”) resolved them

inconsistently. On March 9, 2022, the IGO denied relief in IGO

No. 20220197 (ARP-WCI-1863-21) for negligence by Officer Lavin

while escorting Mr. Akinola and another inmate. (ECF No. 87-1).

It was dismissed as “lacking in merit” and repetitive of ARP-WCI-

1743-21. (Id.). Then on March 15, 2022, a final decision was

rendered on IGO No. 20220196, an appeal of the disposition of ARP-

WCI-1743-21.3 (ECF Nos. 81-1, at 12; 92-1). Contrary to Officer

Lavin’s argument, (ECF No. 91, at 7), this denial dealt only with

denial of medical care by medical staff. The letter states: “Your

complaint concerning CO Lavin’s alleged negligence will be

addressed in a separate communication.” (ECF No. 92-1). Despite

the forward-looking language, the parties do not provide any

further decisions by the IGO. Instead, proceedings took place

assuming that all grievances had been resolved. Plaintiff signed

his complaint on March 11, 2022. (ECF No. 1-1, at 1, 6). On March

3 Mr. Akinola filed multiple grievances against prison

officials and medical staff. The Administrative Remedy Procedure

(“ARP”) grievances and a chronology were attached to Defendants’

first motion to dismiss or for summary judgment. (ECF Nos. 10-2,

10-3, 10-4).

12

17, 2022, the complaint was received by the clerk of this court

and filed on the docket. (ECF No. 1).

First, it is far from settled that the IGO ever properly

considered Plaintiff’s grievances against Officer Lavin.

Certainly, those claims were not resolved in the March 15 letter,

which only dealt with medical staff. Given the state of the

record, Officer Lavin has not clearly established that Plaintiff

failed to exhaust administrative remedies prior to signing his

complaint on March 11, 2022. Moreover, the prison mailbox rule

need not be as inviolate as Officer Lavin asserts.

The prison mailbox rule states that an incarcerated pro se

litigant’s filing is considered “filed” when it is delivered to

the prison mailroom for mailing to the court. The rule was first

established in Houston v. Lack, 487 U.S. 266 (1988), where the

Court made clear it was a way to avoid penalizing incarcerated

litigants for delays that were out of their control. The rule is

often used to determine if a litigant has filed an action before

the statute of limitations expires, see, e.g., Lewis v. Richmond

City Police Dep’t, 947 F.2d 733, 735-36 (4th Cir. 1991), or if a

litigant has timely filed an appeal, see, e.g., United States v.

Moore, 24 F.3d 624, 626 (4th Cir. 1994) (holding “Houston governs

all notices of appeal filed by prisoners in a criminal proceeding,

without regard to whether they are represented by counsel”).

13

Fundamentally, the rule is about fairness. “The Houston rule merely

serves to create functionally equivalent time bars and provide

equal access to the courts for pro se prisoner litigants.” Lewis,

947 F.2d at 736.

The court will decline to follow the prison mailbox rule in

this context. Applying the prison mailbox rule, Mr. Akinola’s

complaint was “filed” on March 11, four days before his claim

arguably was administratively exhausted.4 The complaint was not

docketed in this court until March 17, at which point all seem to

agree that Mr. Akinola’s claim was administratively exhausted. As

described above, the rule was put in place to ensure fairness for

incarcerated pro se litigants, particularly to ensure that they

were not penalized for delays beyond their control. See Lewis,

947 F.2d at 735 (“Fundamentally, the rule in Houston is a rule of

equal treatment; it seeks to ensure that imprisoned litigants are

not disadvantaged by delays which other litigants might readily

overcome.”). Applying the prison mailbox rule here would penalize

Plaintiff for filing a complaint that was, according to the

parties, administratively exhausted by the time it was docketed in

4 In the absence of clear record evidence on the date the

complaint was delivered to prison officials, courts can use the

date a complaint was signed by the plaintiff. See Hoskins v.

Graham, No. 14-cv-2295-DKC, 2017 WL 2666371, at *3 (D.Md. June 21,

2017). The envelope in which the complaint was mailed reflects a

postmark of March 15, 2022. (ECF No. 1-3, at 1).

14

this court. The court will deny summary judgment based on the

prison mailbox rule.

Even if the prison mailbox rule were to apply, Plaintiff has

raised a reasonable argument that there can be no need for

administrative exhaustion when the plaintiff is released from

prison before filing an amended complaint. The circuit courts

have reached differing conclusions on this question. Plaintiff

urges the court to follow the lead of the United States Courts of

Appeal for the Third, Eighth, and Ninth Circuits,5 which have found

that there is no administrative exhaustion requirement when a

plaintiff amends his or her complaint after being released from

incarceration. (ECF No. 87, at 17). On the other side of the

coin, the Fifth, Tenth, and Eleventh Circuits6 have found that the

plaintiff’s status at the time of his or her original complaint

controls whether the administrative exhaustion requirement

applies. (Id. at 18). While the Fourth Circuit has not weighed

in on this particular procedural wrinkle, this court has previously

explained that administrative exhaustion is not required for a

5 See Garrett v. Wexford Health, 938 F.3d 69, 87 (3d Cir.

2019), cert. denied, 590 U.S. 952 (2020); Allen v. Amsterdam, 132

F.4th 1065, 1068 (8th Cir. 2025); Jackson v. Fong, 870 F.3d 928,

937 (9th Cir. 2017).

6 See Bargher v. White, 928 F.3d 439, 447-48 (5th Cir. 2019);

May v. Segovia, 929 F.3d 1223, 1229 (10th Cir. 2019); Harris v.

Garner, 216 F.3d 970, 981-82 (11th Cir. 2000).

15

litigant who is “not incarcerated at the time the complaint [is]

filed.” Holland v. Prince George's County, No. 09-cv-2737-DKC,

2011 WL 530559, at *3 (D.Md. Feb. 8, 2011). In the absence of

binding precedent from the Fourth Circuit, the court adopts the

rule of the Third, Eighth, and Ninth Circuits as persuasive.

Plaintiff’s complaint is not defeated by an administrative

exhaustion requirement because his operative complaint, (ECF No.

70), was filed after he was released from prison.

The court will deny summary judgment on the administrative

exhaustion issue under the PLRA.

C. Failure to Plead Deliberate Indifference (Count I)

Officer Lavin argues that Plaintiff’s allegations do not rise

to the level of deliberate indifference on either of his § 1983

claims. The court previously considered and rejected this argument

in the opinion granting Plaintiff leave to amend his complaint.

(ECF No. 68). The same analysis controls here.

Amendment is not futile if the proposed amended claims could

survive a motion to dismiss. (Id. at 2). In ruling on the motion

to amend the complaint, the court applied the two-part test to

establish liability in Eighth Amendment violation claims based on

deliberate indifference, which contains both an objective

component and a subjective component. (Id. at 6 (quoting ECF No.

31, at 6-8)); see also Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir.

2016). The court considered both of Mr. Akinola’s deliberate

16

indifference claims: first, “that Officer Lavin exhibited

deliberate indifference by ‘ordering and prodding Mr. Akinola to

walk down the stairs while wet, shackled, and unescorted’ with Mr.

Akinola’s hands cuffed behind his back,” and second, “failing to

secure timely medical assistance for Mr. Akinola after the fall.”

(ECF No. 68, at 7). The court expressly found that, “[t]aken as

true and construed in the light most favorable to Mr. Akinola, the

allegations in the proposed amended complaint are sufficient to

state a plausible Eighth Amendment claim against Officer Lavin.”

(Id. at 13). Because the court already considered and rejected

Defendant’s argument and determined that Plaintiff had

sufficiently stated a claim, dismissal is denied on this basis.

D. Qualified Immunity (Count I)

Qualified immunity is an affirmative defense under 42 U.S.C.

§ 1983, which immunizes officers from suit. Gelin v. Maryland,

132 F.4th 700, 708 (4th Cir. 2025). The Fourth Circuit previously

laid out the relevant analysis:

Our analysis asks two questions: “whether the

facts make out a violation of a constitutional

right and whether the right at issue was

clearly established at the time of defendant’s

alleged misconduct.” West v. Murphy, 771 F.3d

209, 213 (4th Cir. 2014) (cleaned up). If the

answer to either is no, immunity attaches. We

may address the questions in “the order of

decisionmaking that will best facilitate the

fair and efficient disposition of each case.”

Pearson v. Callahan, 555 U.S. 223, 242[]

(2009).

17

Putman v. Harris, 66 F.4th 181, 186 (4th Cir. 2023); see also Zorn

v. Linton, No. 25-297, slip op. at 3 (U.S. Mar. 23, 2026)

(“Government officials enjoy qualified immunity from suit under

§1983 unless their conduct violates clearly established law.”).

The court has already determined that Mr. Akinola has pleaded a

violation of a constitutional right, so only the second prong

remains in question. The defendant asserting the qualified

immunity defense bears the burden of proof on whether the right at

issue was clearly established. Stanton v. Elliott, 25 F.4th 227,

233 (4th Cir. 2022).

In some situations, the Fourth Circuit has found that the

test for deliberate indifference for stating an Eighth Amendment

violation satisfies the qualified immunity analysis:

Here, the Eighth Amendment prohibits only

intentional conduct: a minimum of “‘deliberate

indifference’ to inmate health or safety” is

required. Farmer[ v. Brennan], 511 U.S.

[825,] 834[ (1994)] (citation omitted). That

means correction officers “must both be aware

of facts from which the inference could be

drawn that a substantial risk of serious harm

exists” and actually “draw the inference”

before liability attaches. Id. at 837[]. It

follows that when “plaintiffs have 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.”

Beers-Capitol v. Whetzel, 256 F.3d 120, 142

n.15 (3d Cir. 2001). “[T]he two inquiries

effectively collapse into one.” Delgado-

Brunet v. Clark, 93 F.3d 339, 345 (7th Cir.

1996). Dismissal, in other words, remains

18

improper so long as the officers’ mental state

remains genuinely in issue.

Thorpe v. Clarke, 37 F.4th 926, 934 (4th Cir. 2022) (alterations

to citations added). While the Thorpe test does not apply in every

Eighth Amendment case, see Pfaller v. Amonette, 55 F.4th 436, 446

(4th Cir. 2022), its analysis weighs in favor of declining to

dismiss the case based on qualified immunity at this time. As

described above, the court has already found that Mr. Akinola

sufficiently pleaded both the objective and subjective parts of

the deliberate indifference test to defeat a motion to dismiss.

Officer Lavin focuses his arguments on the sufficiency of the

complaint, which is no longer at issue. Based on the information

available and the lack of discovery, dismissing at this time on

qualified immunity grounds would be inappropriate.

Moreover, Officer Lavin has failed to meet his burden to

demonstrate that the rights at issue were not clearly established.

Plaintiff brings two § 1983 claims: one related to Officer Lavin’s

alleged actions forcing him to proceed down the wet stairs without

an escort while shackled, and one related to Officer Lavin’s

alleged delay in getting medical attention after Plaintiff’s fall.

(ECF No. 70, at 12-13). To be entitled to qualified immunity,

Officer Lavin must prove that the rights at issue were not clearly

established at the time. Officer Lavin has not met his burden.

First, for the claim related to Mr. Akinola walking down the

19

stairs, it is not even clear that Officer Lavin has articulated

any right that he claims was not clearly established at the time.

The only right that he seems to point to is the right not to be

“forced” to proceed down wet stairs:

Even if the factual allegations in Plaintiff’s

Amended Complaint are taken as true, it is not

alleged that CO Lavin took any action that

violates any clearly established

constitutional right of which a reasonable

public official would have known. In fact, as

noted, CO Lavin never forced Plaintiff to

proceed down the wet stairs, unlike the

correctional officers in [Anderson v.

Morrison, 835 F.3d 681 (7th Cir. 2016)].

(ECF No. 81-1, at 26-27). Officer Lavin cites a single Seventh

Circuit case but does not identify any cases within the Fourth

Circuit to support his position. This is insufficient. Pevia v.

Moyer, No. 20-cv-3270-ELH, 2023 WL 3740562, at *8 (D.Md. May 30,

2023) (denying qualified immunity where “defendants present a

boilerplate qualified immunity argument without application of the

[relevant] law to the facts”). Second, for Mr. Akinola’s medical

care claim, Officer Lavin argues that the complaint “fails to

demonstrate that any routine delay in Plaintiff being seen by the

medical department was at the hands of, or decision of, [Officer]

Lavin.” (ECF No. 81-1, at 27). But, once again, the court has

already determined that Mr. Akinola has stated a claim against

Officer Lavin for the delay in medical care. Officer Lavin

entirely fails to explain why this right was not clearly

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established at the time of the events in this case. The motion to

dismiss on qualified immunity grounds will be denied.

Additionally, Defendant has failed to engage adequately with

the facts in the complaint at the motion to dismiss stage.

Defendant argues that he “never forced Plaintiff to proceed down

the wet stairs.” (Id.).7 But this argument does no good on a

motion to dismiss. Mr. Akinola has clearly alleged in his amended

complaint that Officer Lavin forced him down the stairs. (See,

e.g., ECF No. 70 ¶¶ 23, 25 (“Officer Lavin made clear that he was

nonetheless ordering Mr. Akinola to walk out of the shower and

down the stairs: ‘I’m giving you a direct order,’ said Officer

Lavin. . . Officer Lavin again commanded Mr. Akinola to walk down

the stairs.”)). Officer Lavin has failed to carry his burden, and

the court will not dismiss on qualified immunity at this juncture.

E. Supplemental Jurisdiction (Count II)

Officer Lavin asks the court to decline to exercise

supplemental jurisdiction over Count II, as it is a state law

claim. (ECF No. 81-1, at 19). “Supplemental jurisdiction allows

federal courts to hear and decide state-law claims along with

federal-law claims when they ‘are so related to claims in the

action within such original jurisdiction that they form part of

7 The use of the word “force” should distinguish between

physical force, which might implicate the use of constitutionally

excessive force, and a verbal command type of force, which is

alleged here and might support a deliberate indifference claim.

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the same case or controversy.’” Wisconsin Dep't of Corr. v.

Schacht, 524 U.S. 381, 387 (1998) (quoting 28 U.S.C. § 1367(a)).

Officer Lavin’s argument is predicated on his earlier argument

that the only federal claim against him should be dismissed. (ECF

No. 81-1, at 20). He does not assert that the federal and state

claims are not part of the same “case or controversy.” As

described above, the court is not dismissing the federal claim.

Because there is still a federal claim in this case that makes up

a part of the same “case or controversy” as the state law claim,

dismissal is unwarranted.

F. Maryland Tort Claims Act (Count II)

Officer Lavin argues that he is immune from suit under the

Maryland Tort Claims Act (“MTCA”). (ECF No. 81-1, at 21). The

MTCA “grants immunity to State personnel from liability ‘for a

tortious act or omission that is within the scope of the public

duties of the State personnel and is made without malice or gross

negligence.’” Francis v. Maryland, No. 21-cv-1365-ELH, 2023 WL

2456553, at *23 (D.Md. Mar. 10, 2023) (quoting Md. Code Ann., Cts.

& Jud. Proc. § 5-522(b) (West)). Because the MTCA expressly

excludes immunity from gross negligence, the court will consider

if Plaintiff has sufficiently pleaded gross negligence to survive

a motion to dismiss.

Gross negligence is “an intentional failure to

perform a manifest duty in reckless disregard

of the consequences as affecting the life or

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property of another, something more than

simple negligence, and likely more akin to

reckless conduct.” [Nero v. Mosby, 890 F.3d

106,] 127–28 [(4th Cir. 2018)] (cleaned up).

“A government official commits gross

negligence ‘only when he or she inflicts

injury intentionally or is so utterly

indifferent to the rights of others that he or

she acts as if such rights did not exist.’”

Id. at 128 (quoting Cooper v. Rodriguez, 443

Md. 680, [708] (2015)).

Rice v. Cecil County, 751 F.Supp.3d 574, 588 (D.Md. 2024).

Officer Lavin’s factual disputes with Mr. Akinola’s amended

complaint again misunderstand the burden at the motion to dismiss

stage, where the court accepts the facts in the complaint as true.

Mr. Akinola alleges that, after he came out of the shower, he

realized that Officer Lavin intended to have him walk down the

metal staircase with wet shoes while shackled, which meant he would

not be able to use his arms to support or brace himself. (ECF No.

70 ¶ 20). Mr. Akinola asked where the second officer was, who

could support him while Officer Lavin supported his cellmate, and

Officer Lavin told him “you’ll be fine.” (Id. ¶ 23). When Mr.

Akinola hesitated, Officer Lavin said, “I’m giving you a direct

order.” (Id.). Without any escort and in front of Officer Lavin

and his cellmate, “Officer Lavin repeatedly told Mr. Akinola to

‘go ahead,’” then moved at a fast pace, pushing both Mr. Akinola

and his cellmate ahead of him. (Id. ¶ 25, 27). As Officer Lavin

“rush[ed], moving the inmates quickly and impatiently,” Mr.

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Akinola’s cellmate “told Officer Lavin to slow down because it was

wet.” (Id. ¶ 27). Mr. Akinola followed orders, slipped, and fell.

On these facts, Mr. Akinola has sufficiently stated a claim for

gross negligence. Officer Lavin was repeatedly asked about having

an escort for Mr. Akinola and slowing down on the stairs yet

knowingly forced Mr. Akinola into a dangerous situation for an

unescorted inmate. These facts raise a plausible claim that

Officer Lavin displayed “a thoughtless disregard of the

consequences without the exertion of any effort to avoid them.”

Cooper v. Rodriguez, 443 Md. 680, 686 (2015) (quoting Barbre v.

Pope, 402 Md. 157, 187 (2007)). Because Mr. Akinola has

sufficiently alleged that Officer Lavin acted with gross

negligence, he has overcome MTCA immunity. See Rice, 751 F.Supp.3d

at 588. The motion to dismiss will be denied on this basis.

G. Administrative Exhaustion Under the MPLA (Count II)

Finally, Defendant argues that Plaintiff has failed to meet

the administrative exhaustion requirements under the MPLA. The

MPLA is, in some ways, more onerous than the PLRA. Notably, the

MPLA requires a plaintiff to pursue “any available proceedings for

judicial review” after administrative exhaustion and attach proof

of administrative exhaustion to the complaint. Md. Code Ann., Cts.

& Jud. Proc. § 5-1003 (West). The MPLA’s requirement that proof

of administrative exhaustion be attached to the complaint is not

relevant to this action, however, because it does not apply in

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federal court. See Olumakinde v. Baltimore Cnty. Det. Ctr., No.

24-cv-0943-TDC, 2024 WL 5007456, *3 (D.Md. Dec. 6, 2024) (stating

the MPLA requirement that proof of administrative exhaustion be

attached to the complaint “is not applicable to complaints filed

in federal court”); see also Berk v. Choy, 146 S.Ct. 546, 557

(2026) (holding that a state law requiring an affidavit to be

attached to certain complaints did not apply in federal court, as

it conflicted with Fed.R.Civ.P. 8).

It is far from clear, however, whether the MPLA’s

administrative exhaustion requirement, which includes “any

available proceedings for judicial review,” applies in this

context, whether it is cognizable on a motion to dismiss, or

whether the facts are uncontroverted so as to be properly assessed

on this record. Plaintiff encourages the court to consider only

whether he was incarcerated at the time of filing the operative

amended complaint when determining if the MPLA applies. (ECF No.

87, at 36). Officer Lavin argues that the fact that he was

incarcerated when he initiated the action means that

administrative exhaustion under the MPLA is required. (ECF No.

91, at 15). Maryland courts have not wrestled with the question

of whether filing an amended complaint after the plaintiff is

released from prison obviates the administrative exhaustion issue.

Beyond the question for Maryland courts, it is unclear following

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the United States Supreme Court’s decision in Berk whether such a

heightened requirement conflicts with federal procedural

requirements. See D.C. Water and Sewer Auth. v. Samaha Associates,

PC, No. 23-cv-1328-ABA, 2026 WL 654130, at *5 (D.Md. Mar. 9, 2026)

(finding that a Maryland statute, which required a certificate to

be filed shortly after certain complaints, was inapplicable in

federal court following Berk). As the court is maintaining

jurisdiction of the state law claim and proceeding on the federal

claim, the court will defer decision on this issue “until and

unless it becomes clear that [its] resolution is necessary to the

outcome of this litigation.” Cecilia Schwaber Trust Two v.

Hartford Acc. and Indem. Co., 636 F.Supp.2d 481, 483 (D.Md. 2009)

(reciting an earlier decision declining to resolve a novel issue

of Maryland law or to certify it to the then Maryland Court of

Appeals. Schwaber v. Hartford Acc. & Indem. Co., No. 06-cv-0956-

JFM, 2007 WL 4532126, at *7 (D.Md. Dec. 17, 2007)). Particularly

given the confused state of the record about administrative

exhaustion, it is premature to resolve the issue under the MPLA.

H. Motion to Stay

Proceeding parallel to this case is the bankruptcy case of

Ms. Stafford-Shroyer’s employer. See In re Tehum Care Servs.,

Inc., No. 23-90086 (Bankr. S.D.Tex.). Within that case, a party

filed a motion to enjoin numerous pending cases, including

Plaintiff’s case in this court. (ECF No. 73-1, at 1, 28). On

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June 6, 2025, Ms. Stafford-Shroyer moved to stay this case until

the Bankruptcy Court issues an order deciding the motion. (ECF

No. 73, at 1). The Bankruptcy Court issued an order deciding the

motion on October 30, 2025. (ECF No. 99-1). As Plaintiff

observes, this order “renders moot” Ms. Stafford-Shroyer’s motion

to stay, (ECF No. 99, at 1), which will be denied accordingly.

Moreover, the Bankruptcy Court held that Plaintiff “is not bound

by the consensual releases” in the bankruptcy reorganization plan,

(ECF No. 99-1, at 8); therefore, this case may proceed.

The court expects that Ms. Stafford-Shroyer will respond to

the amended complaint shortly.

IV. Conclusion

For the foregoing reasons, Officer Lavin’s motion to dismiss

or, in the alternative, for summary judgment will be denied, and

Ms. Stafford-Shroyer’s motion to stay will be denied as moot. A

separate order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge

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