Petition for Writ of Certiorari — Neil Dupree, Petitioner v. Kevin Younger

APPENDIX A

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

—————————

No. 21-6423

—————————

KEVIN YOUNGER,

Plaintiff – Appellee,

v.

NEIL DUPREE,

Defendant – Appellant,

and

JEMIAH L. GREEN; RICHARD N. HANNA; KWASI

H. RAMSEY; WALLACE SINGLETARY; TYRONE

CROWDER,

Defendants.

—————————

Appeal from the United States District Court for the

District of Maryland, at Baltimore. Richard D. Bennett,

Senior District Judge. (1:16-cv-03269-RDB)

—————————

Argued: January 25, 2022

Decided: March 11, 2022

—————————

Before KING and RUSHING, Circuit Judges, and

David J. NOVAK, United States District Judge for the

Eastern District of Virginia, sitting by designation.

(1a)

2a

—————————

Dismissed by unpublished opinion. Judge King wrote the

opinion, in which Judge Rushing and Judge Novak

joined.

—————————

ARGUED: Karl Aram Pothier, OFFICE OF THE

ATTORNEY GENERAL OF MARYLAND, Baltimore,

Maryland, for Appellant. Allen Eisner Honick, FURMAN

| HONICK LAW, Owings Mills, Maryland, for Appellee.

ON BRIEF: Brian E. Frosh, Attorney General, Shelly E.

Mintz, Assistant Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF MARYLAND, Baltimore,

Maryland,

for

Appellant.

David

Daneman,

WHITEFORD, TAYLOR & PRESTON, LLP,

Baltimore, Maryland, for Appellee.

—————————

Unpublished opinions are not binding precedent in this

circuit.

KING, Circuit Judge:

In this 42 U.S.C. § 1983 action, a jury in the District

of Maryland found defendant Neil Dupree liable for

violating plaintiff Kevin Younger’s Fourteenth

Amendment due process rights. Dupree pursues a single

issue on appeal: that the district court erred in rejecting

his contention that Younger’s lawsuit is barred because he

failed to exhaust his available administrative remedies, as

required by the Prison Litigation Reform Act (the

“PLRA”). As explained below, because Dupree raised his

exhaustion contention in a pretrial motion for summary

judgment — and did not reassert that contention in a

post-trial motion — our review thereof is precluded by

3a

controlling precedent. We therefore dismiss Dupree’s

appeal.

I.

The dispute giving rise to this litigation stems from

an assault that occurred on September 30, 2013, at the

Maryland Reception, Diagnostic & Classification Center,

a state prison in Baltimore, where Younger was a pretrial

detainee. That morning, three prison guards attacked

Younger and other inmates at the direction of Dupree,

who served as an intelligence lieutenant at the prison.

Younger was asleep when the guards entered his cell. The

assailants promptly grabbed Younger and threw him

from his bunk to the concrete floor. They assaulted

Younger by slamming his head against a toilet and

striking his face, head, and body multiple times using

handcuffs and other objects. Having beaten Younger

severely, the guards left him on the floor of his cell,

unconscious and bleeding profusely. Younger did not

receive appropriate and timely medical attention. Several

months after the incident, Younger was flown to a hospital

for treatment of the injuries he sustained to his head and

leg. The prison guards who executed the attack on

Younger and the other inmates were criminally convicted

for their actions, and the prison’s warden was forced to

resign.

On September 28, 2016, Younger initiated this 42

U.S.C. § 1983 action against Dupree and several other

prison employees, including the warden and the three

prison guards who assaulted him. By his Complaint,

Younger alleged, inter alia, violations of the Eighth and

Fourteenth Amendments to the Constitution. On July 30,

2019, Younger filed his operative Amended Complaint,

again pursuing § 1983 claims under the Eighth and

Fourteenth Amendments. In his claims, Younger

4a

contended that Dupree and his codefendants had used

excessive force against him during the 2013 assault, in

contravention of Younger’s Fourteenth Amendment due

process rights.

On November 18, 2019, Dupree moved for summary

judgment, maintaining, in relevant part, that Younger’s

claims are barred because he failed to exhaust his

available administrative remedies — as required by the

PLRA — before initiating his § 1983 action. See 42 U.S.C.

§ 1997e(a). Shortly thereafter, on December 19, 2019, the

district court rejected Dupree’s exhaustion contention

and denied his summary judgment motion. See Younger

v. Green, No. 1:16-cv-03269 (D. Md. Dec. 19, 2019), ECF

No. 217 (the “Denial Opinion”). As the Denial Opinion

explained, the PLRA does not bar Younger’s claims

because the administrative remedy identified by Dupree

was “not truly available in any meaningful sense and

Younger was not required to pursue it.” See Denial

Opinion 14 (internal quotation marks omitted).

The litigation thereafter proceeded to the 10-day jury

trial. On February 4, 2020, the jury returned its verdict in

favor of Younger, finding Dupree and four of his

codefendants liable under § 1983 for violating the

Fourteenth Amendment’s due process protections.1 The

Younger erroneously asserts in his appellate brief that the jury

found Dupree and four of his codefendants liable for violating the

Eighth Amendment. See Br. of Appellee 1, 2, 12, 14. According to the

verdict, however, only Younger’s Fourteenth Amendment rights

were violated. See Younger v. Green, No. 1:16-cv-03269 (D. Md. Feb.

4, 2020), ECF No. 265. That is so because, unlike excessive force

claims pursued by convicted prisoners — which are governed by the

Cruel and Unusual Punishment Clause of the Eighth Amendment —

excessive force claims pursued by pretrial detainees like Younger are

governed by the Due Process Clause of the Fourteenth Amendment.

See Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015).

1

5a

jury awarded Younger the sum of $700,000 in damages,

and the district court entered its judgment in Younger’s

favor that same day.

Dupree thereafter filed a post-trial motion seeking a

remittitur with respect to the verdict, and the district

court denied that motion. Importantly, Dupree did not

therein reassert his PLRA exhaustion contention that had

been rejected by the Denial Opinion. That fact

notwithstanding, Dupree seeks appellate review of the

court’s pretrial rejection of his exhaustion contention. We

possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Under controlling precedent of this Court, we “will

not review, under any standard, the pretrial denial of a

motion for summary judgment after a full trial and final

judgment on the merits,” when the issue rejected pretrial

has not been pursued in the district court by way of a posttrial motion. See Chesapeake Paper Prod. Co. v. Stone &

Webster Eng’g Corp., 51 F.3d 1229, 1237 (4th Cir. 1995).

We have since made clear that the rule specified in

Chesapeake applies to appellate review of not only factual

issues, but also purely legal ones. See Varghese v.

Honeywell Int’l, 424 F.3d 411, 423 (4th Cir. 2005).

The circumstances of this appeal fall precisely within

the scope of our Chesapeake-Varghese precedent. By his

unsuccessful pretrial motion for summary judgment,

Dupree maintained that Younger’s § 1983 claims are

barred because he failed to exhaust his administrative

remedies. In its Denial Opinion, the district court

carefully considered and rejected that contention. And

after losing the 2020 jury trial by way of the adverse

damages verdict, Dupree failed to reassert and preserve

his exhaustion argument in a post-trial motion.

6a

Notably, Dupree concedes on appeal that our 1995

Chesapeake decision will “ordinarily” preclude appellate

review of a pretrial denial of a summary judgment motion

where, “as here, the issue has not been presented to the

district court through a post-trial motion.” See Br. of

Appellant 2. He also acknowledges that, in our 2005

Varghese decision, we recognized that the Chesapeake

precedent applies to and precludes appellate review of a

“purely legal defense denied on summary judgment but

not raised in a post-trial motion.” Id. Nevertheless,

Dupree requests this panel to “revisit” our circuit

precedent and consider “the suggestion by the dissent in

Varghese that Chesapeake does not and should not

preclude appellate review of purely legal defenses

extinguished on summary judgment.” See Reply Br. of

Appellant 3.2

As Dupree correctly acknowledges, the Varghese

decision makes it crystal clear that, when an issue

resolved on summary judgment — even a purely legal one

— is not presented to the district court in a post-trial

motion, we will not review on appeal the pretrial denial of

summary judgment after a full trial has been conducted

and final judgment entered. See 424 F.3d at 423. In

support of his assertion that we should nevertheless

review his PLRA exhaustion contention, Dupree relies

almost exclusively on a dissenting opinion filed in

Varghese. Id. at 423-27 (Motz, J., concurring in part and

dissenting in part). That dissent would have authorized

During oral argument, Dupree’s lawyer conceded that the Varghese

decision is “controlling.” But when asked if he wished to pursue an en

banc rehearing in this appeal to revisit our precedent, he responded

in the negative. He then sought to distinguish Varghese based on the

difference between the legal issue presented therein (preemption)

and the legal issue pursued here (exhaustion). Put succinctly,

Dupree’s effort to distinguish Varghese is unpersuasive.

2

7a

appellate review of certain purely legal issues — such as

legal defenses — if those issues were resolved pretrial and

not later pursued in a post-trial motion. Id. at 426.

Significantly,

the

dissent

distinguished

those

circumstances from the situation in Chesapeake, where

the summary judgment motion had presented factual

issues and the court had decided that the case should go

to trial. Id. at 425. The dissent observed that “the

evidentiary concerns discussed in Chesapeake are simply

not at issue when a party seeks to reassert on appeal a

legal defense that the court below rejected at the

summary judgment stage.” Id. (emphasis omitted).

Relying on the Varghese dissent, Dupree argues here

that, after his exhaustion contention — a legal defense —

had been fully and finally resolved by the Denial Opinion,

“nothing could have occurred at the merits trial to change

that disposition.” See Reply Br. of Appellant 3. Dupree

also laments that our Chesapeake-Varghese precedent is

unfair in this context because it “perpetuates the

extinction of [his] potentially meritorious legal defense to

[Younger’s] claims simply because [Dupree] — after the

merits trial and without any new facts in hand — did not

ask the district court to revisit its earlier, purely legal,

decision.” Id. at 4.

Although we appreciate Dupree’s appellate

contention, his argument simply tracks the views

expressed in the Varghese dissent and is not supported by

our circuit precedent. We recognize that there is a circuit

split concerning appellate review of a purely legal issue in

circumstances such as these. And we acknowledge that

our precedent on this issue adheres to the minority view.3

Based on our review of precedent from the other courts of appeals,

the Second, Third, Sixth, Seventh, Ninth, Tenth, D.C., and Federal

3

8a

But as we have explained time and again, a three-judge

panel of this Court is not entitled to circumscribe or

undermine an earlier panel decision. See McMellon v.

United States, 387 F.3d 329, 333 (4th Cir. 2004) (en banc);

see also United States v. Williams, 808 F.3d 253, 261 (4th

Cir. 2015); Payne v. Taslimi, 998 F.3d 648, 654 (4th Cir.

2021). We must therefore adhere to our ChesapeakeVarghese precedent, which can only be altered by this

Court sitting en banc or by the Supreme Court. Pursuant

to that precedent, we “will not review, under any

standard, the pretrial denial of a motion for summary

judgment after a full trial and final judgment on the

merits,” even in circumstances where the issue rejected

on summary judgment and not reasserted in a post-trial

motion is a purely legal one. See Varghese, 424 F.3d at 421,

423 (quoting Chesapeake, 51 F.3d at 1237). Because the

circumstances of this appeal fall precisely within the

confines of our Chesapeake-Varghese precedent, the

exhaustion issue raised by Dupree is not properly before

us and our review thereof is precluded.

Circuits appear to allow appellate review of legal issues that were

resolved pretrial and not presented to the district court again in a

post-trial motion. See Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir.

2004); Pennbarr Corp. v. Ins. Co. of N. Am., 976 F.2d 145, 146, 149-55

(3d Cir. 1992); McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997);

Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 719-20 (7th Cir.

2003); Pavon v. Swift Transp. Co., 192 F.3d 902, 906 (9th Cir. 1999);

Ruyle v. Cont’l Oil Co., 44 F.3d 837, 841-42 (10th Cir. 1994); Feld v.

Feld, 688 F.3d 779, 783 (D.C. Cir. 2012); United Techs. Corp. v.

Chromalloy Gas Turbine Corp., 189 F.3d 1338, 1344 (Fed. Cir. 1999).

The First and Fifth Circuits, on the other hand, do not permit

appellate review in such circumstances. See Ji v. Bose Corp., 626 F.3d

116, 127-28 (1st Cir. 2010); Feld Motor Sports, Inc. v. Traxxas, L.P.,

861 F.3d 591, 596 (5th Cir. 2017).

9a

III.

Pursuant to the foregoing, we adhere to our

Chesapeake-Varghese precedent and dismiss this appeal.

DISMISSED

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

KEVIN YOUNGER,

*

Plaintiff,

*

v.

*

JEMIAH L. GREEN, et

al.,

*

*

Defendants.

*

*

*

Civil Action No.

RDB-16-3269

*

*

*

*

*

*

*

MEMORANDUM OPINION

Plaintiff Kevin Younger (“Plaintiff” or “Younger”),

brought this action against Sergeant Jemiah Green

(“Green”), Sergeant Kwasi Ramsey (“Ramsey”), and

Correctional Officer Richard Hanna (“Hanna”) of the

Maryland Department of Public Safety & Correctional

Services (“DPSCS”), alleging that Green, Ramsey, and

Hanna assaulted him while he was incarcerated in the

Maryland Reception, Diagnostic & Classification Center

(“MRDCC”). In addition to Green, Ramsey, and Hanna,

Younger also sued three supervisory employees: former

MRDCC Warden Tyrone Crowder (“Crowder”), Major

Wallace Singletary (“Singletary”), and Lieutenant Neil

Dupree (“Dupree”).

This case proceeded to a jury trial on January 21,

2020 against Defendants Green, Ramsey, Hanna,

Crowder, Singletary, and Dupree. On January 29, 2020,

this Court granted Defendant Singletary’s Motion for

Judgment as a Matter of Law pursuant to Federal Rule

of Civil Procedure 50(a), entering judgment in favor of

(10a)

11a

Singletary. (ECF No. 245.) On February 3, 2020, the jury

returned a verdict in favor of Plaintiff against Defendants

Crowder, Dupree, Green, Hanna, and Ramsey in the

amount of $700,000.00. (ECF Nos. 265, 266.)

Currently pending before this Court are several posttrial motions: Defendant Crowder’s Rule 50(b) Motion for

Judgment or, in the Alternative, for Remittitur (ECF No.

279); Pro se Defendant Ramsey’s Motion to Stay

Enforcement of Judgement (ECF No. 280); Defendant

Dupree’s Motion for Remittitur (ECF No. 282); and Pro

se Defendant Ramsey’s Motion for Preparation of District

Court’s Transcripts at Government Expense (ECF No.

293). The Court has reviewed the parties’ submissions and

no hearing is necessary. See Local Rule 105.6 (D. Md.

2018). For the reasons that follow, Defendant Crowder’s

Rule 50(b) Motion for Judgment or, in the Alternative, for

Remittitur (ECF No. 279) is DENIED; Pro se Defendant

Ramsey’s Motion to Stay Enforcement of Judgement

(ECF No. 280) is GRANTED as unopposed; Defendant

Dupree’s Motion for Remittitur (ECF No. 282) is

DENIED; and Pro se Defendant Ramsey’s Motion for

Preparation of District Court’s Transcripts at

Government Expense (ECF No. 293) is DENIED AS

MOOT.

BACKGROUND

In considering a motion under Rule 50, the court

views the evidence in the light most favorable to the nonmovant. Gregg v. Ham, 678 F.3d 333, 341 (4th Cir. 2012).

The background of this case has been discussed at length

in this Court’s November 19, 2019 Memorandum Opinion

denying Defendants Crowder, Singletary, and Dupree’s

Motions to Dismiss (ECF No. 188) and in this Court’s

December 19, 2019 Memorandum Opinion addressing

12a

Defendants Crowder, Singletary, and Dupree’s summary

judgment motions (ECF No. 217).

In brief, Plaintiff’s suit arises from a brutal assault on

Plaintiff by Defendants Sergeant Green, Sergeant

Ramsey, and Correctional Officer Hanna while Plaintiff

was incarcerated in the Maryland Reception, Diagnostic

& Classification Center (“MRDCC”). On the morning of

September 30, 2013, Green, Ramsey, and Hanna attacked

Younger as he slept in his cell, brandishing a mace can,

radios, and handcuffs used as brass knuckles. (Jan. 28,

2020 Trial Tr. at 41, ECF No. 296.) Younger’s head was

slammed against the concrete floor and against the toilet

in his cell. (Id. at 42.) The assault lasted several minutes,

after which Green, Ramsey, and Hanna left Younger

unconscious in a pool of his own blood. (Id. at 43.)

Ramsey and Green returned about an hour later to

bring Plaintiff to the medical unit, where they ordered

Plaintiff to write that he “fell off the top bunk.” (Id. at 4850.) Younger sustained injuries to his face, head, wrists,

ribs, right hand and right leg, and could not get out of bed

for weeks due to the leg injury. (Id. at 51-52, 59.) Younger

also reported headaches and anxiety months after the

attack. (Pl.’s Trial Exhibit 3, ECF No. 298-9.) He spent

several months in a prison hospital to treat his leg and

head injuries. (Jan. 28, 2020 Trial Tr. at 66, ECF No. 296.)

Younger returned to Maryland in 2014 and underwent

surgery to repair his leg muscle in April 2018. (Id.) At

trial, both Younger’s medical expert and Defendant

Crowder’s medical expert agreed that Younger’s injuries

are permanent.

Defendants Hanna, Ramsey, and Green were

convicted of their crimes in 2015 and 2016. See State v.

Hanna, Case No. 114260031 (Balt. City Cir. Ct.), filed

Sept. 17, 2014 (May 6, 2015 guilty plea of conspiracy to

13a

commit first degree assault); State v. Ramsey, Case No.

114260032 (Balt. City Cir. Ct.), filed Sept. 17, 2014 (April

1, 2016 guilty verdict on charges of second-degree assault

and misconduct in office); State v. Green, Case No.

114260029 (Balt. City Cir. Ct.), filed Sept. 17, 2014 (April

1, 2016 guilty verdict on charges of second-degree assault

and misconduct in office). On September 28, 2016,

Younger filed this action, pursuing claims under the

Eighth and Fourteenth Amendments to the United States

Constitution, pursuant to 42 U.S.C. § 1983, against his

assailants (Defendants Hanna, Ramsey, and Green) and

against the Division of Correction officials whom he

contended were responsible—Defendants Warden

Crowder, Major Singletary, and Lieutenant Dupree. In

addition, Plaintiff sued the State of Maryland. (Compl.,

ECF No 1.) In August 2017, this Court dismissed the

State of Maryland from this action on sovereign immunity

grounds, prompting Younger to sue the State in the

Circuit Court for Baltimore City, Maryland. (ECF No.

72.) In June 2019, a jury returned a verdict in Younger’s

favor in the State case. (ECF No. 166-5.)

In August 2019, following proceedings in the State

action, Defendants Crowder, Singletary, and Dupree

moved to dismiss the claims against them. This Court

denied the Motions in November 2019. (ECF No. 188.)

Defendants Crowder, Singletary, and Dupree also moved

for summary judgment. (ECF Nos. 185, 186, 187.) This

Court denied Defendants Singletary and Dupree’s

Motions in toto, but granted in part and denied in part

Defendant Crowder’s Motion, entering summary

judgment in Crowder’s favor on Younger’s claim that

Crowder exhibited deliberate indifference to Younger’s

medical needs and the false charges entered against him,

but denying summary judgment as to the other claims

asserted against Crowder. (ECF No. 217.) In addition,

14a

this Court found that qualified immunity did not shield

Crowder from Younger’s claims because Fourth Circuit

precedent sufficiently notified Crowder that failing to

take action to protect inmates from abuses at the hands of

correctional officers could lead to supervisory liability

under § 1983. (Id. at 25 (citing Thompson v. Virginia, 878

F.3d 89, 109 (4th Cir. 2017)).

On January 21, 2020, this case proceeded to a jury

trial against Defendants Ramsey, Hanna, Green,

Crowder, Singletary, and Dupree. On January 29, 2020, at

the close of Plaintiff’s case, this Court granted Defendant

Singletary’s Motion for Judgment as a Matter of Law

pursuant to Federal Rule of Civil Procedure 50(a),

entering judgment in favor of Singletary. (ECF No. 245.)

The same day, Younger voluntarily dismissed with

prejudice Counts III, IV, V, VI, VII, VIII, and IX of the

Amended Complaint and dismissed his claim for punitive

damages in Count II as to Defendants Green, Ramsey,

and Hanna. (ECF Nos. 246, 247.) Accordingly, the

remaining Counts for the jury’s consideration were:

Count I – Violation of the Fourteenth Amendment to the

United States Constitution asserted against Defendants

Tyrone Crowder and Neil Dupree under a theory of

supervisory liability; and Count II – Violation of the

Fourteenth Amendment to the United States

Constitution asserted against Defendants Jemiah L

Green, Richard N. Hanna, and Kwasi H. Ramsey. On

February 3, 2020, the jury returned a verdict in favor of

Plaintiff against Defendants Crowder, Dupree, Green,

Hanna, and Ramsey in the amount of $700,000.00.1 (ECF

Nos. 265, 266.)

Defendants Green and Hanna acknowledged their liability.

Accordingly, the jury was only asked to determine whether

1

15a

On February 18, 2020, Plaintiff filed a Motion for

Attorneys’ Fees and Litigation Costs. (ECF No. 268.) On

February 19, 2020, Defendant Crowder filed a Motion to

Stay Enforcement of the Judgment, arguing that, as an

“agent” of the State of Maryland, he is not required to

post a supersedeas or appeal bond pursuant to Local Rule

110.1.b. (ECF No. 269.) On February 21, 2020, pro se

Defendant Ramsey filed an appeal with the United States

Court of Appeals for the Fourth Circuit. (ECF No. 270.)

On February 25, 2020, Defendant Dupree filed a Motion

to Stay Enforcement of the Judgment without posting

bond, echoing Crowder’s argument under Local Rule

110.1.b. (ECF No. 273.) On February 27, 2020, pro se

Defendant Green filed an appeal with the Fourth Circuit.

(ECF No. 276.) On March 2, 2020, Defendant Crowder

filed a Motion for Judgment, or, in the Alternative, for

Remittitur. (ECF No. 279.) Defendant Dupree also filed a

Motion for Remittitur, adopting Defendant Crowder’s

arguments. (ECF No. 282.) Also on March 2, 2020,

Defendant Ramsey filed a Motion to Stay Enforcement of

Judgement, echoing Crowder’s and Dupree’s arguments

under Local Rule 110.1.b. (ECF No. 280.) On March 6,

2020, Ramsey filed a Motion for Preparation of District

Court’s Transcripts at Government Expense. (ECF No.

293.)

On April 7, 2020, this Court denied without prejudice

Plaintiff’s Motion for Attorneys’ Fees and Litigation

Costs pending appeal and granted Defendants Crowder

and Dupree’s Motions to Stay Enforcement of the

Judgment. (Letter Order, ECF No. 297.) The Court also

extended the briefing deadlines for the following motions:

Defendant Crowder’s Rule 50(b) Motion for Judgment or,

Defendant Ramsey was liable under Count II. (See Jury Verdict,

ECF No. 265.)

16a

in the Alternative, for Remittitur (ECF No. 279); Pro se

Defendant Ramsey’s Motion to Stay Enforcement of

Judgement (ECF No. 280); Defendant Dupree’s Motion

for Remittitur (ECF No. 282); and Pro se Defendant

Ramsey’s Motion for Preparation of District Court’s

Transcripts at Government Expense (ECF No. 293). (Id.)

Those motions are now ripe.

STANDARD OF REVIEW

Under Rule 50 of the Federal Rules of Civil

Procedure, judgment as a matter of law should be granted

against a party when that party “has been fully heard on

an issue and there is no legally sufficient evidentiary basis

for a reasonable jury to find for that party on that issue.”

Coryn Grp. II, LLC v. O.C. Seacrets, Inc., 868 F. Supp. 2d

468, 483 (D. Md. 2012) (citation omitted). Rule 50 permits

a litigant to renew its motion for judgment as a matter of

law even after judgment has been entered. Fed. R. Civ. P.

50(b). In considering a motion under Rule 50, the court

views the evidence in the light most favorable to the nonmovant, Gregg v. Ham, 678 F.3d 333, 341 (4th Cir. 2012),

gives that party the benefit of all reasonable inferences

from the evidence, Whalen v. Roanoke Cnty. Bd. of

Supervisors, 769 F.2d 221, 224 (4th Cir. 1985), and asks

whether there is “substantial evidence in the record to

support the jury’s findings,” Anderson v. Russell, 247

F.3d 125, 129 (4th Cir. 2001) (citation omitted). However,

“the court may not make credibility determinations or

weigh the evidence.” Reeves v. Sanderson Plumbing, 530

U.S. 133, 150-51 (2000) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986)).

A litigant may also challenge a jury verdict and/or

judgment under Rule 59 of the Federal Rules of Civil

Procedure, but it is an “extraordinary remedy which

should be used sparingly.” See Pacific Ins. Co. v.

17a

American Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.

1998). Under Rule 59(a)(1)(A), a court may grant a new

trial on all or some issues “for any reason for which a new

trial has heretofore been granted in an action at law in

federal court.” Fed. R. Civ. P. 59. As relevant here, a

litigant’s challenge to an excessive damages award may be

pursued under Federal Rule 59(a) for a new trial nisi

remittitur. See Atlas Food Sys. & Servs., Inc. v. Crane

Nat’l Vendors, Inc., 99 F.3d587, 593 (4th Cir. 1996).

Whether a jury award is excessive is a question of law.

Konkel v. Bob Evans Farms, Inc., 165 F.3d 275, 280 (4th

Cir. 1999).

In an action based on federal question jurisdiction,

such as this case, the court must apply the federal

standard for remittitur. See McCollum v. Daniel, 136 F.

Supp. 2d 472, 476 (D. Md. 2001), aff’d, 32 F. App’x 49 (4th

Cir. 2002). Compensatory damages are deemed excessive

when they are “against the clear weight of the evidence,

or based upon evidence which is false, or will result in a

miscarriage of justice.” Id. (quoting Cline v. Wal-Mart

Stores, Inc., 144 F.3d 294, 305 (4th Cir. 1998)). If the court

finds that a jury award is excessive, it may “grant a new

trial nisi remittitur, which gives the plaintiff the option of

accepting the remittitur or of submitting to a new trial.”

Cline, 144 F.3d at 305 n.2 (4th Cir. 1998). Unlike a motion

under Rule 50, when considering a motion for a new trial

under Rule 59, “a trial judge may weigh the evidence and

consider the credibility of the witnesses.” Poynter by

Poynter v. Ratcliff, 874 F.2d 219, 223 (4th Cir. 1989); see

also McCollum v. McDaniel, 136 F. Supp. 2d 472, 475 (D.

Md. 2001).

ANALYSIS

Defendant Crowder seeks relief under Federal Rule

of Civil Procedure 50(b), asking this Court to grant

18a

judgment in his favor notwithstanding the verdict because

he asserts that the evidence was insufficient to establish

liability under 42 U.S.C. § 1983 for deliberate indifference

and that he is entitled to qualified immunity. (ECF No.

279.) In the alternative, Crowder seeks remittitur under

Rule 59(a), requesting that the Court reduce the amount

of the judgment to coincide with the evidence in the case

and with judgments in similar cases. (Id.) Defendant

Dupree also seeks remittitur and adopts and incorporates

Crowder’s arguments. (ECF No. 282.) As discussed

below, Defendant Crowder’s Rule 50(b) Motion for

Judgment or, in the Alternative, for Remittitur (ECF No.

279) and Defendant Dupree’s Motion for Remittitur (ECF

No. 282) shall be DENIED.

Defendant Ramsey, proceeding pro se, has filed a

Motion to Stay Enforcement of Judgment (ECF No. 280),

seeking the same relief pursuant to Local Rule 101.1.b

that the Court has already granted for Defendants

Crowder and Dupree (ECF No. 297). Local Rule 110.1.b

provides: “[u]nless otherwise ordered by the Court, the

state of Maryland, any of its political subdivisions, and any

agents thereof shall not be required to post a supersedeas

or appeal bond.” Local Rule 110.1.b (D. Md. 2018).

Accordingly, Ramsey, as an agent of the State like

Crowder and Dupree, shall not be required to post an

appeal bond, and his Motion to Stay Enforcement of

Judgment (ECF No. 280), which is unopposed, is

GRANTED. In addition, Ramsey filed a Motion for

Preparation of District Court’s Transcripts at

Government Expense (ECF No. 293), in which he seeks

copies of the trial transcripts in this case. Ramsey’s

request is moot as all of the transcripts that were

requested became publicly available, without restriction,

on June 4, 2020. (See ECF Nos. 289, 290, 291, 292, 295,

296.) Accordingly, Ramsey’s Motion for Preparation of

19a

District Court’s Transcripts at Government Expense

(ECF No. 293) is DENIED AS MOOT.

I. Rule 50 Motion (ECF No. 279)

Under Rule 50, Defendant Crowder asks this Court

to grant him judgment notwithstanding the verdict on the

basis that there was insufficient evidence for the jury to

find that Crowder was deliberately indifferent to Plaintiff

Younger’s constitutional rights and because Crowder is

entitled to qualified immunity. Crowder’s arguments are

unavailing.

A. Deliberate Indifference

The jury found Defendant Crowder liable for the

assault on Plaintiff Younger based on a theory of

supervisory liability under 42 U.S.C. § 1983. (See Jury

Verdict, ECF No. 265.) To establish supervisory liability

under § 1983, Younger was required to show:

(1) that the supervisor had actual or constructive

knowledge that h[is] subordinate was engaged in

conduct that posed ‘a pervasive and unreasonable

risk’ of constitutional injury to citizens like the

plaintiff;

(2) that the supervisor’s response to that knowledge

was so inadequate as to show ‘deliberate indifference

to or tacit authorization of the alleged offensive

practices,’; and

(3) that there was an ‘affirmative causal link’ between

the supervisor’s inaction and the particular

constitutional injury suffered by the plaintiff.

Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014)

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

To show a pervasive and unreasonable risk of

constitutional injury, Younger had to produce evidence

20a

that inmate assaults were “widespread, or at least used on

several different occasions and that the conduct engaged

in by the subordinates poses an unreasonable risk of harm

of constitutional injury.” Id. To satisfy the second element

Younger had to “demonstrate[e] a supervisor’s continued

inaction in the face of documented widespread abuses.”

Id. To meet the third element, Younger had to present

“direct” proof of causation “where the policy commands

the injury of which plaintiff complains . . . or may be

supplied by the tort principle that holds a person liable for

the natural consequences of his actions.” Id. Ultimately,

the issue of supervisory liability “is ordinarily one of fact,

not law.” Shaw, 13 F.3d at 799.

As a pre-trial detainee, Plaintiff Younger was

required to establish deliberate indifference by Crowder

to prevail on a theory of supervisory liability. See, e.g.,

Thompson v. Friday, JKB-18-2186, 2019 WL 6528975, at

*4 (D. Md. Dec. 4, 2019) (applying traditional supervisory

liability framework to claim against supervisor for

subordinates’ use of excessive force against pre-trial

detainee); Ozah v. Fretwell, CCB-18-1063, 2019 WL

4060387, at *8-9 (D. Md. Aug 28, 2019) (applying

“deliberate indifference” state of mind requirement in

pre-trial detainee case and collecting cases for support).

As this Court has previously explained, Younger did not

need to demonstrate that Crowder was aware of a

potential attack against Younger specifically, but rather

that Crowder was aware of a substantial risk of harm to

those like Younger (i.e., prisoners at MRDCC). (See ECF

Nos. 188 at 26, 217 at 20-21 n. 5 (citing Shaw v. Stroud, 13

F.3d 791, 799 (4th Cir. 1994)).)

There was ample evidence at trial to establish

Defendant Crowder’s deliberate indifference to

Younger’s constitutional rights under the Fourteenth

Amendment. Indeed, there is abundant testimony from

21a

Crowder’s colleagues at the MRDCC revealing that they

raised serious concerns with Defendant Crowder about

Defendants Green, Hanna, and Ramsey’s uses of

excessive force prior to the assault on Plaintiff Younger.

For example, Felicia Hinton, Crowder’s supervisor and

the assistant regional commissioner who was the previous

Warden of MRDCC, testified that, prior to the assault on

Younger, she told Crowder about her decision to reassign

Defendant Green to a different shift and that Green “was

trouble.” (Jan. 22, 2020 Trial Tr. at 53-54, ECF No. 291.)

Assistant Warden Suzanne Fisher testified that she also

raised concerns about Defendants Green, Ramsey, and

Hanna with Defendant Crowder. (Jan. 23, 2020 Trial Tr.

at 20-22, ECF No. 289.) She testified that she explained to

Crowder in 2012 that “Green, Ramsey, and Hanna were

starting to show up on use of force reports,” including

sometimes on serious incident reports. (Id. at 21-22.)

When Fisher learned that several inmates had attacked a

correctional officer, she discussed her concerns with

Crowder about the safety and security of MRDCC and

about potential retaliation by officers against the inmates.

(Id. at 16-19.)

Finally, Administrative Captain Raymond Pere, the

administrative/investigative captain for MRDCC from

November 2012 through March 2014, was responsible for

investigating staff for violations of standards of conduct,

including uses of force. (Jan. 23, 2020 Trial Tr. At 100-102,

ECF No. 289.) Captain Pere testified that, in early 2013,

he approached Defendant Crowder with concerns about

Defendant Green and other officers and their need for

additional training on the use of force with inmates. (Id.

at 112-114.) Pere also testified about his meeting with the

supervisors in MRDCC where he relayed a concern about

the prison staff “not performing their duties as required.”

22a

(Id. at 123-124.) Pere testified that the supervisors “just

didn’t respond.” (Id.)

Despite these explicit warnings from Hinton, Fisher,

and Pere, the record reflects that Crowder did not take

any significant measures to prevent attacks on inmates.

After the assault on Younger, Ms. Hinton recommended

that Crowder be terminated from his position as Warden

because he did not timely notify her of the assault on

inmates and “[b]ecause ultimately the warden is

responsible for the actions of their staff. For the incidents

that take place, present or not…” (Id. at 107-108.)

Crowder argues that he was not deliberately

indifferent because the nature of the attack on Younger

was unprecedented in his experience and because he

responded reasonably after the attack on the correctional

officer that resulted in the retaliatory attack on Younger.

However, “the court may not make credibility

determinations or weigh the evidence.” Reeves v.

Sanderson Plumbing, 530 U.S. 133, 150-51 (2000)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986)). This Court may only determine whether there

was “substantial evidence in the record to support the

jury’s findings,” which this Court is satisfied there was.

See Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001)

(citation omitted).

B. Qualified Immunity

Crowder also argues that he is entitled to qualified

immunity because his conduct did not violate any clearly

established right of Plaintiff Younger. “Qualified

immunity shields government officials from liability in a §

1983 suit as long as their conduct has not violated ‘clearly

established statutory or constitutional rights of which a

reasonable person would have known.’” Humbert v.

Mayor & City Council of Baltimore City, 866 F.3d 546,

23a

555 (4th Cir. 2017) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). “To determine whether an officer is

entitled to qualified immunity, the court must examine (1)

whether the facts illustrate that the officer violated the

plaintiff’s constitutional right . . . , and (2) whether the

right was clearly established at the time of the alleged

event such that ‘a reasonable officer would have

understood that his conduct violated the asserted right.’ ”

Id. (quoting Miller v. Prince George’s County, 475 F.3d

621, 627 (4th Cir. 2007)). “The answer to both questions

must be in the affirmative to defeat the officer’s

entitlement to immunity.” Id.

This Court has repeatedly rejected Crowder’s

assertion of qualified immunity, both on summary

judgment and at trial. As the Court noted in its December

19, 2019 Memorandum Opinion denying Crowder’s

summary judgment motion on qualified immunity:

Fourth Circuit precedent sufficiently notified

Crowder that failing to take action to protect inmates

from abuses at the hands of correctional officers could

lead to supervisory liability under § 1983. The Fourth

Circuit has recently affirmed that prisoners “have an

Eighth Amendment right to be protected from

malicious attacks, not just by other inmates, but also

from the very officials tasked with ensuring their

security” and that this right was clearly established

as of April 2010. Thompson v. Virginia, 878 F.3d 89,

109 (4th Cir. 2017). Accordingly, qualified immunity

cannot shield Crowder from Younger’s claims.

(ECF No. 217 at 25.) At trial, this Court also denied

Crowder’s Rule 50 Motion on qualified immunity,

reiterating its earlier findings on summary judgment and

distinguishing Adams v. Ferguson, 884 F.3d 219 (4th Cir.

2019), the case upon which Crowder continues to rely.

24a

(Jan. 31, 2020 Trial Tr. at 6-7, ECF No. 298-2.) The Court

explained that in Adams, “ [t]he Fourth Circuit found that

the commissioner was entitled to qualified immunity

because no clearly established law dictates that housing

mentally ill inmates in prisons rather than transferring

them to mental health facilities automatically and alone

amounts to objectively excessive risk.” (Id.) The Court

found that Adams “has no applicability here” where the

“entire case is with respect to what is alleged to have been

a lawless prison environment.” (Id.) For these same

reasons, this Court reiterates its finding that Defendant

Crowder is not entitled to qualified immunity in this case.

In sum, this Court finds no basis for Defendant Crowder’s

requested relief under Rule 50, and his Motion for

Judgment (ECF No. 279) is DENIED.

II. Rule 59 Motions (ECF Nos. 279, 282)

In the alternative, Defendant Crowder seeks

remittitur under Rule 59(a), requesting that the Court

reduce the amount of the jury’s verdict of $700,000 in

compensatory damages to coincide with the evidence in

the case and with judgments in similar cases. (ECF No.

279.) Defendant Dupree also seeks remittitur and adopts

and incorporates Crowder’s arguments.2 (ECF No. 282.)

“[J]ury determinations of factual matters such as … the

amount of compensatory damages will be reviewed by

determining whether the jury’s verdict is against the

weight of the evidence or based on evidence which is

false.” Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 305

(4th Cir. 1998) (quoting Atlas Food Sys. & Servs., Inc. v.

Crane Nat’l Vendors, Inc., 99 F.3d 587, 594 (4th Cir.

1996)). This review requires a “comparison of the factual

While the Court will refer to “Crowder’s arguments” infra, it is

assumed that these are Dupree’s arguments as well.

2

25a

record and the verdict to determine their compatibility.”

Id.

Here, the jury’s award of $700,000 in compensatory

damages is compatible with the factual record. The

evidence presented at trial revealed that Younger

endured a brutal attack by three correctional officers in

his prison cell, with the officers brandishing mace, radios,

and handcuffs as weapons. (Jan. 28, 2020 Trial Tr. at 41,

ECF No. 296.) The officers, Defendants Green, Ramsey,

and Hanna slammed Younger’s head against the concrete

floor and against the toilet seat. (Id. at 42.) The assault

lasted several minutes, after which Green, Ramsey, and

Hanna left Younger unconscious in a pool of his own blood.

(Id. at 43.)

Ramsey and Green returned about an hour later to

bring Plaintiff to the medical unit, where they ordered

Plaintiff to write that he “fell off the top bunk,” which

Plaintiff did in fear for his life. (Id. at 48-50.) Younger

sustained injuries to his face, head, wrists, ribs, right hand

and right leg, and could not get out of bed for weeks due

to the leg injury. (Id. at 51-52, 59; see also Pl.’s Trial

Exhibit 2, ECF No. 298-8.) Younger also reported

headaches and anxiety months after the attack. (Pl.’s Trial

Exhibit 3, ECF No. 298-9.) He spent several months in a

prison hospital to treat his leg and head injuries. (Jan. 28,

2020 Trial Tr. at 65-66, ECF No. 296.) He also saw a

psychologist once a week during that time. (Id.) Younger

returned to Maryland in 2014 and underwent surgery to

repair his leg muscle in April 2018. (Id.) At trial, both

Younger’s medical expert and Defendant Crowder’s

medical expert agreed that Younger’s injuries are

permanent. Although Younger has found employment

and lives on his own, he testified that he lives in persistent

fear of being attacked. (Jan. 28, 2020 Trial Tr. at 71-73,

ECF No. 296.) He attends a weekly support group to help

26a

with his fears and every night, he pushes a heavy dresser

in front of his bedroom door. (Id.) Younger’s permanent

physical injuries combined with his continued mental

anguish and fear of harm due to the assault support the

jury’s award of $700,000 in compensatory damages.

Contrary to Crowder’s assertion, the jury’s award is

not inconsistent with compensatory damage awards in

other excessive force cases in this district. In Butler v.

Windsor, 143 F. Supp. 3d 332, 336 (D. Md. 2015), the

punitive damages award was reduced after a

consideration of “(1) the degree of reprehensibility of the

defendant’s misconduct; (2) the disparity between the

actual or potential harm suffered by the plaintiff and the

punitive damages award; and (3) the difference between

the punitive damages awarded by the jury and the civil

penalties authorized or imposed in comparable cases.”

These considerations are not required when reviewing a

jury’s award of compensatory damages. See Cline v. WalMart Stores, Inc., 144 F.3d 294, 305 (4th Cir. 1998)

(“[J]ury determinations of factual matters such as … the

amount of compensatory damages will be reviewed by

determining whether the jury’s verdict is against the

weight of the evidence or based on evidence which is

false.”) (citations omitted). In the 1995 case, Thorne v.

Wise, 47 F.3d 1165 (Table) (4th Cir.), the Fourth Circuit

affirmed a $250,000 compensatory damages award for a

plaintiff who, after fleeing police in a high-speed pursuit,

was tackled and beaten by state troopers resulting in a

broken jaw, fractured eye socket, a black eye, chipped

teeth, and bruising.

In Francis v. Johnson, 219 Md. App. 531, 537 (2014),

the Maryland Court of Special Appeals reduced a

compensatory damages award to $300,000 for a plaintiff

who was held against his will for one hour and, aside from

emotional distress, did not suffer any physical or

27a

economic loss. Finally, in McCollum v. Daniel, 136 F.

Supp. 2d 472 (D. Md. 2001), this Court reduced the jury’s

compensatory damages award to $1.25 million for a

plaintiff who lost his right eye and sustained permanent

injury to his hand and mental anguish from the assault by

three police officers, noting that “[n]either side has

presented the court with a case directly parallel to this

one.” Similarly here, the parties have not presented the

Court with a case that is directly on point to this one, and,

indeed, Defendant Crowder concedes that the type of

assault on Younger was “unprecedented.” (See Crowder’s

Mot. At 16-17, ECF No. 279-1.) (“the evidence

demonstrated that the type of assault perpetrated on Mr.

Younger and others on the morning of September 30, 2013

was unprecedented.”).) Consequently, after review of

these cases and after comparison of the factual record in

this case and the jury’s verdict, this Court finds that the

compensatory damages award of $700,000 was not

excessive. Accordingly, Defendant Crowder’s Motion for

Remittitur (ECF No. 279) and Defendant Dupree’s

Motion for Remittitur (ECF No. 282) are DENIED.

CONCLUSION

For the reasons stated above, Defendant Crowder’s

Rule 50(b) Motion for Judgment or, in the Alternative, for

Remittitur (ECF No. 279) is DENIED; Pro se Defendant

Ramsey’s Motion to Stay Enforcement of Judgement

(ECF No. 280) is GRANTED as unopposed; Defendant

Dupree’s Motion for Remittitur (ECF No. 282) is

DENIED; and Pro se Defendant Ramsey’s Motion for

Preparation of District Court’s Transcripts at

Government Expense (ECF No. 293) is DENIED AS

MOOT.

A separate Order follows.

28a

Dated: February 17, 2021

_______/s/_______________

Richard D. Bennett

United States District Judge

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

KEVIN YOUNGER,

*

Plaintiff,

*

v.

*

JEMIAH L. GREEN, et

al.,

*

*

Defendants.

*

*

*

Civil Action No.

RDB-16-3269

*

*

*

*

*

*

*

MEMORANDUM OPINION

Plaintiff Kevin Younger alleges that Sergeant Kwasi

Ramsey (“Ramsey”), Sergeant Jemiah Green (“Green”),

and Correctional Officer Richard Hanna (“Hanna”) of the

Maryland Department of Public Safety & Correctional

Services (“DPSCS”) assaulted him while he was

incarcerated in the Maryland Reception, Diagnostic &

Classification Center (“MRDCC”). In addition to

Ramsey, Green, and Hanna, Younger also sues three

supervisory employees: former MRDCC Warden Tyrone

Crowder (“Crowder”), Major Wallace Singletary

(“Singletary”), and Lieutenant Neil Dupree (“Dupree”).

In August 2017, this Court dismissed the State of

Maryland from this action on sovereign immunity

grounds, prompting Younger to sue the State in the

Circuit Court for Baltimore City, Maryland. (Mem. Op. of

Aug. 22, 2017, ECF No. 72.) In June 2019, a jury returned

a verdict in Younger’s favor. (Verdict Sheet, ECF No.

166-5.).

(29a)

30a

In August 2019, following proceedings in the State

action, Defendants Crowder, Singletary, and Dupree

moved to dismiss the claims against them.1 This Court

denied the Motions in November 2019. (Mem. Op. of Nov.

19, 2019, ECF No. 188.) Now pending are three Motions2

for Summary Judgment: Defendant Crowder’s Motion for

Summary Judgment (ECF No. 185); Defendant Dupree’s

Motion for Summary Judgment (ECF No. 186); and the

Motion for Summary Judgment for all Claims in

Amended Complaint against Defendant Wallace

Singletary (ECF No. 187). The Court has reviewed the

parties’ submissions and no hearing is necessary. See

Local Rule 105.6 (D. Md. 2018). For the reasons stated

herein, Defendant Crowder’s Motion for Summary

Judgment (ECF No. 185) is GRANTED IN PART and

DENIED IN PART. Specifically, Summary Judgment is

ENTERED in Crowder’s favor on Younger’s claim that

Crowder exhibited deliberate indifference to Younger’s

medical needs and the false charges entered against him,

but is DENIED as to all other claims asserted against

him. Defendant Dupree’s Motion for Summary Judgment

(ECF No. 186) and the Motion for Summary Judgment

for all Claims in Amended Complaint against Defendant

Wallace Singletary (ECF No. 187) are DENIED in toto.

BACKGROUND

In ruling on a motion for summary judgment, this

Court reviews the facts and all reasonable inferences in

the light most favorable to the non-moving party. Scott v.

Harris, 550 U.S. 372, 378, 127 S. Ct. 1769 (2007);

Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433

(4th Cir. 2013). This Court also takes judicial notice of the

1

Defendants Ramsey, Green, and Hanna are proceeding pro se.

On December 9, 2019, the parties filed several motions in limine

which will be resolved in due course.

2

31a

State action, Younger v. Maryland, Case No. 24-C-17004752 (Balt. City Cir. Ct.), filed Sept. 21, 2017. This Court

has recited the factual allegations in this case in two prior

opinions. (ECF Nos. 72, 188.) For purposes of

adjudicating the pending Motions for Summary

Judgment, this Court presents an overview of the events

and communications preceding Younger’s assault.

During the trial in the State action, Richard Hanna

testified that MRDCC was “pretty lawless” and that

officer misconduct “goes from the top down.” (Hanna

Test., Trial Tr. June 5, 2019, 22:13-15, ECF No. 195-18.)

Hanna testified at length on these matters, claiming that

he carried out ordered hits against inmates “twice a week

on average.” (Id. at 22:5-9.) Hanna’s comments at trial

echo his earlier representations to an Internal

Investigative Unit (“IIU”) Detective following Younger’s

assault on September 30, 2013, in which he confessed to

attacking Younger and described his assaults against

other inmates that day. (Hanna Statement to Det. Wright,

Feb. 26, 2015, ECF No. 195-17.)

Long before Ramsey, Green, and Hanna assaulted

Younger on September 30, 2013, Warden Crowder was

made aware of the assailant’s violent proclivities and the

general lawlessness pervading MRDCC. Between 2006

and 2009, Crowder served as Assistant Warden to

Warden Felicia Hinton. During that time, Hinton recalls

that Green “body slammed an inmate onto the floor” and

knocked a handcuffed inmate to the ground. (Hinton Dep.

24:1-5, ECF No. 195-9.) Hinton discussed Green’s

behavior with Crowder sometime prior to 2013 and

specifically told Crowder that Green “was trouble.” (Id. at

133:8-12, 170:19-21.) As one of her last acts as Warden in

2009, Hinton moved Green to the overnight shift so that

he would have fewer contacts with inmates. (Id. at 26:1627:4, 113:14-17.) As soon as Hinton left MRDCC,

32a

Crowder—now acting as Warden—transferred Green

back to the dayshift. (Id. at 113:14-22.)

Suzanne Fisher, a DPSCS employee of 42 years who

retired in 2015, also brought her concerns to Crowder.

Fisher served as Assistant Warden to Warden Crowder

from 2010 until 2013. (Fisher Dep. 11:9-20, ECF No. 19512.) She became the Warden of MRDCC after Crowder

was removed from the position in October 2013. (Id. at

11:18-12:4.) Fisher recalled that several officers, including

Green and Ramsey, “always appeared in uses of force”

reports (Fisher Statement to Det. Murray, 24:23-25, ECF

No. 195-7.) In her interview with an investigator shortly

after the Younger assault, Fisher explained that she had

brought her concerns with these officers to Crowder. (Id.

at 25:1-4.) In response, Crowder merely indicated that

reports concerning the officers were to be expected

because they were often first responders. (Id. at 25:5-6.)

Fisher pressed the issue, responding: “I know, but if

you’re suspending ‘em [sic] for uses of force, then you

know you’ve got an issue. Excessive use of force, when

you’re suspending people, then you know you have an

issue.” (Id. at 25:6-8.) Several years later, during the State

Court trial, Fisher claimed that she was only concerned

that the officers would fail to transport inmates to the

medical facility on time or “mess[] with their food.”

(Fisher Test., Trial Tr., June 4, 2019, at 230:10-14, ECF

No. 185-14.)

Crowder also learned of Ramsey and Green’s violent

tendencies from Raymond Peré, who worked as an

Investigative Captain between 2012 and 2013. (Peré Dep.

13:16-20, ECF No. 195-14.) Peré reported directly to

Crowder. (Id. at 13:21-22.) In the spring of 2013, Peré

notified Crowder that he was concerned with

“unnecessary or avoidable uses of force.” (Id. at 29:8-13.)

In his October 2013 interview with an investigator, Peré

33a

recalled reporting an instance of “excessive use of force”3

to Crowder in which an officer “sprayed [an] inmate

through the [food] slot” even though the prisoner was “in

a cell . . . in a secure area.” (Peré Statement to Det.

Murray 13:9-14:2, ECF No. 195-10.) Crowder

disregarded Peré’s concerns, responding “oh, that’s a

knee jerk reaction.” (Id. 14:1-2.) In the same interview,

Peré also recalled telling Crowder “you got some staff

here like [sic] to put their hands on inmates. . . . They take

the opportunity, when it arises, to put their hands on

inmates . . . . [Y]ou need to do something with ‘em.” (Id.

16:5-20.) When Peré perceived that Crowder had not

taken appropriate action, he administered impromptu use

of force training to Green and other officers. (Id. at 17:1318.)

The actions of Ramsey, Green, and Hanna were well

documented. At the time of Younger’s assault, Ramsey

and Green had four pending criminal assault

investigations. (IIU Case Histories for Green and

Ramsey, ECF No. 195-6.) In the investigation report

produced following Younger’s assault, Detective Murray

wrote: “During this investigation, I requested and

received a copy of the Use of Force reports that had

occurred at MRDCC between September 2012 and

October 2013. There were approximately thirteen (13)

Use of Force incidents during that period of time. Out of

those thirteen (13) Use of Force incidents, one incident

did not include Sergeant Ramsey, Sergeant Green, or CO

II Hanna.” (IIU 13-35-01347 at 14, ECF No. 195-2.) In the

State Court trial, Crowder testified that he had an

“opportunity to see all written use of force reports before

Later in his interview, Peré re-characterized this event as

“unnecessary” rather than “excessive” use of force. (Peré Dep. 14:814.)

3

34a

they were completely final.” (Crowder Test., Trial Tr.,

June 10, 2019, 284:15-19, ECF No. 195-4.)

Despite repeated warnings and well-documented red

flags, Crowder is alleged to have failed to take adequate

steps to protect Younger and inmates like him from

assaults by correctional officers. On September 29, 2013,

Correctional Officer Alade Ganiyu was assaulted by

inmate Raymond Lee. (Younger Dep. 30:15-37:17, ECF

No. 185-5.) The next day, on September 30, 2013, Ramsey,

Green, and Hanna assaulted Younger and other inmates

in misplaced retaliation for the assault on Officer Ganiyu.

(Hanna Dep. 62:7-15, ECF No. 185-3; Younger Dep. 67:668:21.) Later that day, Ramsey and Green returned and

transported Younger to the medical unit, where he was

treated by a nurse and Virenda V. Chhunchha, M.D.

(Younger Dep. 96:9-13; Chhunchha Dep. 21:3-4, ECF No.

185-15.) Following his assault, Younger was

administratively charged in connection with the assault

against Ganiyu and was required to serve a term of

solitary confinement.

STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure

provides that a court “shall grant summary judgment if

the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c). A material fact

is one that “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 Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, summary

judgment is proper “only when no ‘reasonable jury could

return a verdict for the nonmoving party.’” Monon Corp.

v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir.

2001) (quoting Anderson, 477 U.S. at 255)). When

35a

considering a motion for summary judgment, a judge’s

function is limited to determining whether sufficient

evidence exists on a claimed factual dispute to warrant

submission of the matter to a jury for resolution at trial.

Anderson, 477 U.S. at 249.

In undertaking this inquiry, this Court must consider

the facts and all reasonable inferences in the light most

favorable to the nonmoving party. Libertarian Party of

Va., 718 F.3d at 312; see also Scott v. Harris, 550 U.S. 372,

378 (2007). However, this Court must also abide by its

affirmative obligation to prevent factually unsupported

claims and defenses from going to trial. Drewitt v. Pratt,

999 F.2d 774, 778-79 (4th Cir. 1993). If the evidence

presented by the nonmoving party is merely colorable, or

is not significantly probative, summary judgment must be

granted. Anderson, 477 U.S. at 249-50. On the other hand,

a party opposing summary judgment must “do more than

simply show that there is some metaphysical doubt as to

the material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986); see also In re Apex

Express Corp., 190 F.3d 624, 633 (4th Cir. 1999). As this

Court has previously explained, a “party cannot create a

genuine dispute of material fact through mere speculation

or compilation of inferences.” Shin v. Shalala, 166 F.

Supp. 2d 373, 375 (D. Md. 2001) (citations omitted).

ANALYSIS

I. Admissibility of IIU Reports.

Defendant Crowder argues that there is no

“admissible evidence” indicating that he knew about

“widespread and pervasive premeditated and retaliatory

assaults on inmates.” (Crowder Mot. 17, ECF No. 185-1.)

In his Response, Plaintiff characterizes this argument as

a “preview” of Crowder’s expected attempts to exclude

Internal Investigative Unit reports concerning Younger’s

36a

assault, and counters that the IIU reports are admissible

as public records under Federal Rule of Evidence 803(8).

(Younger Resp. 41, ECF No. 195.) Crowder has since filed

a motion in limine seeking to exclude some of these

materials from evidence at trial, contending that the IIU

reports do not fall within the ambit of Rule 803(8). (ECF

Nos. 205, 206.)

At this stage, this Court need not resolve whether the

IIU reports, or some portion thereof, would be admissible

at trial. At summary judgment, “the relevant question is

not the admissibility of the evidence’s current form but

whether it can be presented in an admissible form at

trial.” Manzur v. Daney, PWG-14-2268, 2017 WL 930125,

at *1 n.2 (D. Md. Mar. 9, 2017) (quoting Steven S. Gensler,

2 Federal Rules of Civil Procedure, Rules &

Commentary, R. 56 (West 2017)). Much of the relevant

material presented in the IIU reports may be presented

in the form of witness testimony. For example, Plaintiff

intends to call Fisher, Hinton, and Peré at trial (see

Plaintiff’s Proposed Witness and Exhibit List, ECF No.

191), each of whom may testify to the same matters

disclosed in the course of the IIU investigations.

Accordingly, this Court will consider the IIU reports in

their entirety, including statements made to IIU

detectives, to resolve the pending summary judgment

motions.

II. Exhaustion of Administrative Remedies.

Dupree seeks dismissal of Younger’s claims based on

his failure to fully exhaust his administrative remedies in

accordance with the Prisoner Litigation Reform Act

(“PLRA”), 42 U.S.C. § 1997e. (Dupree Mot. 3-16, ECF

No. 186-1.) The PLRA provides in pertinent part that:

No action shall be brought with respect to prison

conditions under section 1983 of this title, or any

37a

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). For purposes of the PLRA, “the

term ‘prisoner’ means any person incarcerated or

detained in any facility who is accused of, convicted of,

sentenced for, or adjudicated delinquent for, violations of

criminal law or the terms and conditions of parole,

probation, pretrial release, or diversionary program.” 42

U.S.C. § 1997e(h). 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, 122 S. Ct. 983

(2002).

Notably, administrative exhaustion under § 1997e(a)

is not a jurisdictional requirement. Rather, the failure to

exhaust administrative remedies is an affirmative defense

to be pleaded and proven by the defendants. See Jones v.

Bock, 549 U.S. 199, 215-16, 127 S. Ct. 910 (2007); Anderson

v. XYZ Corr. Health Servs., Inc., 407 F.2d 674, 682 (4th

Cir. 2005). Nevertheless, a claim that has not been

exhausted may not be considered by this Court. See Bock,

549 U.S. at 220, 127 S. Ct. 910. In other words, exhaustion

is mandatory. Ross v. Blake, 136 S. Ct. 1850, 1857 (2016).

Therefore, a court ordinarily may not excuse a failure to

exhaust. Ross, 136 S. Ct. at 1856 (citing Miller v. French,

530 U.S. 327, 337, 120 S. Ct. 2246 (2000) (explaining “[t]he

mandatory ‘shall’ ... normally creates an obligation

impervious to judicial discretion”)).

A prisoner must follow the required procedural steps

in order to exhaust his administrative remedies. Moore v.

Bennette, 517 F.3d 717, 725, 729 (4th Cir. 2008); see

38a

Langford v. Couch, 50 F. Supp. 2d 544, 548 (E.D. Va. 1999)

(“[T]he ... PLRA amendment made clear that exhaustion

is now mandatory.”). Exhaustion requires completion of

“the administrative review process in accordance with the

applicable procedural rules, including deadlines.”

Woodford v. Ngo, 548 U.S. 81, 88, 93, 126 S. Ct. 2378

(2006). The Court is nevertheless “obligated to ensure

that any defects in [administrative] exhaustion were not

procured from the action or inaction of prison officials.”

Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th

Cir. 2007); see Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir.

2006).

A prisoner is only required to exhaust “available”

remedies that “are capable of use to obtain some relief for

the action complained of.” Ross v. Blake, 136 S. Ct. 1850,

1859 (2016) (citation and quotation marks omitted). In

Ross, the Supreme Court identified three circumstances

in which an administrative remedy procedure may be

unavailable: (1) if it operates as a simple “dead end—with

officers unable or consistently unwilling to provide any

relief to aggrieved inmates”; (2) if the administrative

scheme is “so confusing” or “opaque that it becomes,

practically speaking, incapable of use”; or (3) if prison

administrators “thwart inmates from taking advantage of

a

grievance

process

through

machination,

misrepresentation, or intimidation.” Id. at 1859-60.

In this case, the parties spar over the extent to which

the Maryland Department of Public Safety and

Correctional Services’ administrative remedy procedure

(“ARP”) is “available” upon the initiation of a parallel

investigation by the Internal Investigative Unit. Under

the ARP process, an inmate must first file a request for

administrative remedy with the prison’s warden.

Department of Correction Directive (“DCD”) 185-002 §

V.B.1; see also DCD 185-003. If the warden denies the

39a

ARP or fails to respond to it within an established time

frame, the prisoner may file an appeal to the

Commissioner of Corrections. Next, if the Commissioner

of Corrections denies the inmate’s appeal, he may file a

grievance with the Inmate Grievance Office. Md. Code

Regs. (“COMAR”) 12.02.28.18; Md. Code Ann., Corr.

Servs. § 10-206(a); COMAR 12.07.01.05(B). The prisoner’s

IGO filing must attach several documents, including: the

initial request for administrative remedy, the warden’s

response to that request, a copy of the ARP appeal filed

with the Commissioner of Correction, and a copy of the

Commissioner’s response. COMAR 12.07.01.04(B)(9)(a).

Upon receipt, the IGO conducts a “preliminary review” of

the submission and may dismiss the complaint upon

determination that it is “wholly lacking in merit on its

face.”

Corr.

Servs.

10-207(a)-(b)(1);

COMAR

12.07.01.06A-B.

If the IGO is unable to determine that the complaint

is meritless, it must refer the matter to the Maryland

Office of Administrative Hearings for adjudication by an

administrative law judge. Corr. Servs. § 10-207(c);

COMAR 12.07.01.07A. If the ALJ concludes that the

inmate’s complaint is wholly or partially meritorious, the

decision constitutes a recommendation to the Secretary of

DPSCS, who must make a final agency determination

within fifteen days after receipt of the proposed decision

of the ALJ. See COMAR 12.07.01.10(B); Corr. Servs. § 10209(b)(2)(C). The inmate may seek judicial review of this

decision, as well as of the IGO’s decision to dismiss on

preliminary review and the ALJ’s decision to dismiss.

Corr. Servs. § 10-210(b)(1). Judicial review in state court

is not required to satisfy the PLRA’s administrative

exhaustion requirement. Pozo v. McCaughtry, 286 F.3d

1022, 1024 (7th Cir. 2002).

40a

The ARP process is not the only means of pursuing

complaints against Maryland prison officials. Separately,

the Internal Investigative Unit may investigate

allegations of employee misconduct, including the use of

excessive force. Md. Code Regs. 12.11.01.05(A)(3). When

such an investigation is undertaken, the Department of

Public Safety & Correctional Services’ regulations direct

the warden to dismiss a prisoner grievance if it shares the

“same basis” as a pending IIU investigation. DCD 185003 § VI.N.4. The dismissal must state: “Since this case

shall be investigated by the IIU, no further action shall be

taken within the ARP process.” Id.

In Ross v. Blake, 136 S. Ct. 1850 (2016), the Supreme

Court considered, inter alia, whether Maryland’s ARP

process was truly “available” for purposes of the PLRA

upon the initiation of an IIU investigation. The Court

noted that Maryland’s grievance process had “some

bewildering features” and expressed exasperation with

the confounding interplay between the ARP and IIU

process. Id. at 1860. On the one hand, the Court observed,

Maryland prison wardens typically deny an ARP

grievance while an IIU inquiry was underway. Id. at 186061. On the other hand, some prisoners were able to appeal

the warden’s dismissal based on the IIU inquiry, pursue

their claims up the chain of the IGO, and receive a decision

on the merits. Id. at 1861. Ultimately, the Court remanded

the case to the Fourth Circuit with instructions to

undertake a “thorough review” of ARP materials to

determine the extent to which the ARP process was in fact

“available” to litigants upon the commencement of an IIU

inquiry.

Since Ross, this Court has repeatedly held that the

availability of the IIU process “closes the door” to the

ARP process. Brightwell v. Hershberger, DKC-11-3278,

2016 WL 4537766, at *8 (D. Md. Aug. 31, 2016). In other

41a

words, the administrative remedy procedure is rendered

unavailable upon the commencement of an investigation

by the Internal Investigative Unit. This conclusion is

supported by the Department’s regulations, discussed

supra, which directs wardens to dismiss grievances upon

determining that a parallel IIU investigation is underway.

Accordingly, an IIU investigation fully satisfies the

PLRA’ exhaustion requirement. See Carmichael v. Buss,

TDC-14-3037, 2017 WL 2537225, at *5 (D. Md. June 9,

2017); Oakes v. Dep’t of Pub. Safety, GLR-14-2002, 2016

WL 6822470, at *4-5 (D. Md. Nov. 18, 2016); Brightwell,

2016 WL 4537766, at *8.

Defendants contend that Brightwell and Oakes are

fatally flawed decisions because they ignore that the

inmate-plaintiffs in those cases were able to proceed

through the ARP process despite the existence of an IIU

investigation. In a similar vein, Defendants suggest that

the ARP process remained available to Younger despite

the IIU investigation because another inmate, Raymond

Lee, was able to successfully proceed through the ARP

procedures. (Dupree Mot. 12, ECF No. 186-1.) An

“available” administrative process, however, cannot turn

on a petitioner’s steadfast refusal to accept the

Department’s own procedural rules, which require

dismissal of grievances when a parallel IIU investigation

is underway. In the words of the United States Supreme

Court, this “seemingly unusual process” is “perplexing in

relation to normal appellate procedure.” Ross, 136 S. Ct.

at 1861; see also Carmichael, 2017 WL 2537225, at *5

(discussing how the Supreme Court revealed the

“absurdity of this approach” in Ross). A process which is

only “available” to the extent that a petitioner seeks to

circumvent it through dogged, and evidently meritless,

appeals is in fact not “available” at all. It is too “opaque”

to be “capable of use.” Ross, 136 S. Ct. at 1859.

42a

In this case, Younger claims that he “kept filling” out

timely ARPs but “never heard back” because he had been

transferred from MRDCC to another institution to serve

a term of solitary confinement, a punishment imposed for

his alleged involvement in the Ganiyu assault. (Younger

Dep. 157:5-158:13.) Dupree has attached to his Motion for

Summary Judgment the declaration of a previously

undisclosed witness, Executive Director of the IGO F.

Todd Taylor, Jr., who avers that the IGO’s records

contain only one grievance filed by Younger dated March

28, 2014 and that the IGO dismissed the grievance on

November 25, 2014. (Taylor Decl. ¶ 5, ECF No. 186-4.)

Younger claims that he was unable to present relevant

documents to the IGO for its review because those

documents had been confiscated from him when he was

committed to solitary confinement. (Younger Resp. 48,

ECF No. 195.)

The Court need not resolve disputes concerning

Younger’s adherence to the ARP process because the IIU

investigation satisfied his obligation to subject his claims

to administrative exhaustion. In this case, there is no

dispute that the IIU undertook an investigation

concerning Younger’s assault. Had Younger filed an ARP

within the allotted time period, it would have been subject

to dismissal pursuant to DCD 185-003 § VI.N.4. The mere

fact that Younger potentially could have skirted around

this rule by advancing his claims up the chain of review is

of no great moment. Such a procedural mechanism is not

truly “available” in any meaningful sense and Younger

was not required to pursue it. Accordingly, Younger has

satisfied his administrative exhaustion requirements and

the PLRA does not bar his claims.

43a

III. Res Judicata and Judicial Estoppel.

In his Motion for Summary Judgment, Defendant

Crowder argues that he is entitled to judgment as a

matter of law on all claims asserted against him based on

the doctrine of res judicata and principles of judicial

estoppel. (Crowder Mot. ¶¶ 1, 5, ECF No. 185.)

Defendants Dupree and Singletary have adopted these

portions of Crowder’s Motion. (Dupree Mot. 3, 16, ECF

No. 186-1; Singletary Mot. 3, ECF No. 187-1.) These same

arguments were presented in the Defendants’ motions to

dismiss and were rejected by this Court. (ECF No. 188.)

Accordingly, this Opinion does not address these

arguments.

IV. Younger’s State Law Claims Against Crowder,

Dupree, and Singletary.

In Counts Four, Eight, and Nine, Younger brings

claims under Maryland law against Crowder, Dupree, and

Singletary. In Count Four, Younger sues for violations of

Maryland Declaration of Rights, Article 24. Specifically,

Younger alleges violations of his right under the

Maryland Declaration of Rights “to bodily integrity, to be

secure in his person from excessive force, and to be free

from known risks of serious physical harm.” (Am. Compl.

¶ 122, ECF No. 140.) In Count Eight, Younger brings a

claim of negligent retention, training, and supervision

against Crowder, Dupree, and Singletary. Finally, in

Count Nine, Younger alleges that Crowder, Dupree, and

Singletary acted negligently.

Crowder argues that he is immune to these claims

under the Maryland Tort Claims Act because “Mr.

Younger does not allege, and there is no evidence in the

record to show, that Mr. Crowder acted with malice or

gross negligence.” (Crowder Mot. 11, ECF No. 185-1.)

Dupree and Singletary do not join this argument.

44a

The Maryland Tort Claims Act affords immunity to

state officials for tortious acts or omissions “committed

within the scope of their duties when the violations are

made ‘without malice or gross negligence.’” Housley v.

Holquist, 879 F. Supp. 2d 472, 482–83 (D. Md. 2011)

(quoting Lee v. Cline, 863 A.2d 297, 304 (Md. 2004)). In

this context, “malice” means “actual malice” or “conduct

‘characterized by evil or wrongful motive, intent to injure,

knowing and deliberate wrongdoing, ill-will or fraud.’”

Lee v. Cline, 384 Md. 245, 268, 863 A.2d 297, 311 (2004).

“[A]n officer’s actions are grossly negligent ‘when they

are ‘so heedless and incautious as necessarily to be

deemed unlawful and wanton, manifesting such a gross

departure from what would be the conduct of an

ordinarily careful and prudent person under the same

circumstances so as to furnish evidence of indifference to

consequences.’” Housley v. Holquist, 879 F. Supp. 2d 472,

482-83 (D. Md. 2011) (quoting Henry v. Purnell, 652 F.3d

524, 536 (4th Cir. 2011)). The Fourth Circuit has made

clear that “[w]hether an officer’s actions are grossly

negligent, and therefore unprotected by statutory

immunity, is generally a question for the jury.” Henry,

652 F.3d at 536 (citing Taylor v. Harford County Dep’t of

Soc. Servs., 862 A.2d 1026, 1034 (Md. 2004)).

Plaintiff has presented sufficient evidence to raise a

genuine dispute of fact concerning whether Crowder

exhibited malice or gross negligence.4 Throughout his

As noted in this Court’s prior Memorandum Opinion, Younger has

withdrawn his gross negligence cause of action. (Mem. Op. 22 n.9,

ECF No. 188.) Nevertheless, he has sufficiently alleged gross

negligence. A plaintiff may pursue a negligence claim against a state

official so long as the plaintiff has also alleged facts supporting a gross

negligence claim. See Catterton v. Coale, 84 Md. App. 337, 579 A.2d

781 (Md. Ct. Spec. App. 1990) (holding that negligence claim against

4

45a

tenure at MRDCC, Crowder’s staff repeatedly warned

him about the dangers that Ramsey, Green, and Hanna

posed to inmates. There is evidence that Crowder chose

to disregard these warnings rather than take appropriate

corrective action. For example, there is evidence that

Crowder brushed aside Fisher’s concerns about Ramsey

and Green’s frequent appearance in use of force reports;

disregarded Peré’s complaints about inmate abuses;

turned a blind eye to pervasive violence against inmates;

and even acted to ensure that Green was placed near

inmates despite his predecessor’s warnings that he was

“trouble” and efforts to remove him from the prison

population. This evidence is sufficient to generate a

genuine dispute of material fact as to whether Crowder

displayed, at the very least, an “indifference to [the]

consequences” of permitting Ramsey, Green, and Hanna

to go unchecked. Accordingly, Younger’s state law claims

may proceed to a jury.

V. Younger’s Incarceration Status.

As in their motions to dismiss, Defendants argue in

their summary judgment submissions that Younger was

not a “pre-trial detainee” but rather a full-fledged

prisoner. The distinction is material because a different

a county social worker should not have been dismissed as barred by

the MTCA because plaintiff alleged that defendant social worker

fabricated a report, thereby exhibiting malice or gross negligence);

Ross v. Cecil Cnty. Dep’t of Soc. Servs., 878 F. Supp. 2d 606, 623 (D.

Md. 2012) (“The complaint need not expressly assert that the

defendants acted with malice or gross negligence if it ‘alleges facts

that . . . could establish actual malice if ultimately supported by

evidence and believed by a fact finder.’” (quoting Muhammad v.

Maryland, ELH-11-3761, 2012 WL 987309, at *2 (D. Md. Mar. 20,

2012))). But see Walker v. Maryland, MJG-16-3136, 2017 WL

3730349, at *9 (D. Md. Aug. 30, 2017) (summarily dismissing plaintiff’s

negligence claims and “any other common law claims based on

negligent conduct” as barred by the MTCA).

46a

legal framework may apply to Younger’s state and federal

constitutional claims depending on his incarceration

status. (Crowder Mot. 15, ECF No. 185-1.) In his Motion

to Dismiss, Crowder sought dismissal of Younger’s claims

under Article 24 of the Maryland Declaration of Rights

because Younger was a prisoner, not a pre-trial detainee,

and—Crowder argued—prisoners must pursue excessive

force claims under Articles 16 and 25. (Crowder Mot. to

Dismiss 33-34, ECF No. 154-1.) Younger has consistently

maintained that he was a pre-trial detainee, argued that

he may bring claims under Article 24, and urged the

application of a more lenient, “objective” standard to his

federal constitutional claims based on his incarceration

status.

In a prior Memorandum Opinion (ECF No. 188), this

Court rejected Defendants’ calls to classify Younger a

prisoner rather than a pre-trial detainee because “[a]ll

parties to the State Court proceedings acknowledged”

that Younger was a pre-trial detainee. (Mem. Op. 26-27,

ECF No. 188.) Nevertheless, this Court noted that it

would reconsider the issue should the evidence reveal that

Younger was not a pre-trial detainee. (Id. at 27 n.11.)

Now, at Summary Judgment, Crowder offers the

Declaration of Judith Hemler, Deputy Director of the

DPSCS Commitment Office, to argue that Younger was a

convicted prisoner at the time of the attack. (Hemler Decl.

¶ 5, ECF No. 185-7.) Younger protests that Hemler was

not disclosed as a witness until five weeks past the

discovery deadline and less than sixty days before trial.

(Younger Resp. 9, ECF No. 195.) Younger maintains that

the issue should no longer be in dispute because Crowder

agreed during the State trial that Younger was only

“briefly” at MRDCC “as a part of a pretrial process.”

(Crowder Test., Trial Tr., June 10, 2019, 266:1-4, ECF No.

195-4.) Moreover, counsel from the Office of the Attorney

47a

General—which is now representing Crowder, Dupree,

and Singletary—formerly represented in prior litigation

that Younger was a pre-trial detainee. (State’s Motion in

Limine, State Case, Paper No. 60/0, ECF No. 166-1; Join

Statement of Facts, State Case, Paper No. 72/0, ECF No.

166-3.)

It can no longer be disputed that Younger was a pretrial detainee. It is highly irregular for Crowder and his

counsel to contradict their representations in the Sate

case by asserting otherwise. The testimony of Judith

Hemler was disclosed well after discovery had concluded

and will be excluded from this Court’s consideration and

from trial. No other evidence suggests that Younger was

a prisoner rather than a pre-trial detainee. Accordingly,

Younger shall be deemed a pre-trial detainee for purposes

of this case.

VI. Younger’s Federal Constitutional Claims.

In Count One of the Amended Complaint, Younger

brings claims under the auspices of 42 U.S.C. § 1983.

Specifically, Younger alleges that Crowder, Dupree, and

Singletary violated the following rights protected by the

Eighth and Fourteenth Amendments to the United States

Constitution: “(a) the right to be free from the use of

excessive and unreasonable force and seizure; (b) the

right to be free from a deprivation of life and liberty

without due process of law; (c) the right to be free from

known risks of serious physical harm; (d) the right to be

free from deliberate indifference for a serious medical

need; and (e) the right to be free from objectively

unreasonable conduct that causes, or has the potential to

cause, constitutional harm.” (Am. Compl. ¶ 113, ECF No.

140.)

Younger pursues these claims against Crowder,

Dupree, and Singletary under a theory of supervisory

48a

liability. To establish supervisory liability under § 1983,

Younger must show:

(1) that the supervisor had actual or constructive

knowledge that h[is] subordinate was engaged in

conduct that posed ‘a pervasive and unreasonable

risk’ of constitutional injury to citizens like the

plaintiff;

(2) that the supervisor’s response to that knowledge

was so inadequate as to show ‘deliberate indifference

to or tacit authorization of the alleged offensive

practices,’; and

(3) that there was an ‘affirmative causal link’ between

the supervisor’s inaction and the particular

constitutional injury suffered by the plaintiff.

Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014)

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

To show a pervasive and unreasonable risk of

constitutional injury, Younger must produce evidence

that inmate assaults were “widespread, or at least used on

several different occasions and that the conduct engaged

in by the subordinates poses an unreasonable risk of harm

of constitutional injury.” Id. To satisfy the second

element, Younger may prevail “by demonstrating a

supervisor’s continued inaction in the face of documented

widespread abuses.” Id. To meet the third element,

Younger must present “direct” proof of causation “where

the policy commands the injury of which plaintiff

complains . . . or may be supplied by the tort principle that

holds a person liable for the natural consequences of his

actions.” Id. Ultimately, the issue of supervisory liability

“is ordinarily one of fact, not law.” Shaw, 13 F.3d at 799.

Crowder seeks summary judgment on all of

Younger’s § 1983 claims, arguing that there is “no

49a

admissible evidence” that Crowder knew of “widespread

and pervasive premeditated and retaliatory attacks by

MRDCC staff on inmates” or was “deliberately

indifferent to Younger’s medical needs or to false charges

asserted against him.”5 (Crowder Mot. 17-21, ECF No.

185-1.)

A. Younger must show “subjective deliberate

indifference.”

As a preliminary matter, Younger argues that he

need not show “subjective deliberate indifference” to

sustain a claim of supervisory liability against Crowder

because he was a pretrial detainee, not a prisoner.

Younger is correct that pre-trial detainees need not show

that their assailants had a particular subjective state of

mind when using excessive force. Kingsley v.

Hendrickson, 135 S. Ct. 2466, 2472-73 (2015). Supervisory

liability, however, always requires a showing of deliberate

indifference on the part of the supervisor. See, e.g.,

Thompson v. Friday, JKB-18-2186, 2019 WL 6528975, at

*4 (D. Md. Dec. 4, 2019) (applying traditional supervisory

liability framework to claim against supervisor for

subordinates’ use of excessive force against pre-trial

detainee); Ozah v. Fretwell, CCB-18-1063, 2019 WL

4060387, at *8-9 (D. Md. Aug. 28, 2019) (applying

“deliberate indifference” state of mind requirement in

pre-trial detainee case and collecting cases for support).

Crowder also argues that there is no evidence that he was aware

that Ramsey, Green, and Hanna would attack Younger on September

30, 2013. As this Court has previously held in this case (Mem. Op. 26,

ECF No. 188), Younger need not demonstrate that Crowder was

aware of a potential attack against Younger, but rather must show

that Crowder was aware of a substantial risk of harm to those like

Younger (i.e., prisoners at MRDCC). See Shaw, 13 F.3d at 799.

5

50a

B. Crowder’s knowledge of widespread and

pervasive assaults against inmates.

There is sufficient evidence in the record to raise a

genuine dispute as to whether Crowder knew of

widespread inmate abuses. Despite explicit warnings

about Ramsey and Green’s behavior from Hinton, Fisher,

and Peré, there is no evidence that Crowder took any

significant measures to prevent attacks on inmates.

Although Assistant Warden Fisher, Chief of Security

Presbury, and Captain Joyner all claimed to have been

unaware of prior attacks against inmates conducted in

retaliation for assaults against correctional officers, and

expressed surprise that Ramsey, Green, and Hanna

retaliated against Younger, Crowder read the numerous

use of force reports bearing Ramsey and Green’s name,

heard warnings about Green from Hinton years before

the assault, and listened to Peré’s complaints about

“unnecessary” uses of force. Hanna, moreover, has

testified that he frequently participated in attacks against

inmates and that misconduct “goes from the top down.”

At the summary judgment stage, this Court may not

resolve the factual disputes generated by the testimony of

Fisher, Hanna, Hinton, Joyner, Peré, and Presbury. It is

for the jury to determine whether Crowder had actual or

constructive knowledge of the threat facing MRDCC

inmates and exhibited deliberate indifference to that

threat.

C. Deliberate indifference to Younger’s medical

needs.

To prevail on his “medical needs” claim, Younger

must demonstrate: “(1) the supervisory defendants failed

promptly to provide [him] with needed medical care, (2)

that the supervisory defendants deliberately interfered

with the prison doctors’ performance, or (3) that the

51a

supervisory defendants tacitly authorized or were

indifferent to the prison physicians’ constitutional

violations.” Barnes v. Wilson, 110 F. Supp. 624, 631-32 (D.

Md. 2015) (quoting Miltier v. Beorn, 896 F.2d 848, 854

(4th Cir. 1990)).

Younger has not adduced sufficient evidence to

generate genuine disputes of material fact on this issue.

Although there is evidence that Crowder’s response to

Younger’s assault was deficient in many respects (see IIU

13-35-01359, ECF No. 195-3), it is undisputed that

Younger was transported to the medical unit immediately

after he sustained his injuries, albeit by his assailants.

(Younger Dep. 94:6-11.) There is no evidence that

Crowder deliberately interfered with Younger’s medical

procedures. Finally, Younger does not present evidence

that Crowder was aware of a widespread, well

documented lack of medical attention to inmates as

supervisory liability ordinarily requires. Younger has

failed to raise a genuine dispute of material fact with

respect to this claim. Accordingly, Summary Judgment is

granted in favor of Crowder on Younger’s claim that

Crowder is liable for exhibiting deliberate indifference to

Younger’s medical needs.

D. Deliberate Indifference to false charges against

Younger.

Younger’s claim that Crowder exhibited deliberate

indifference to false charges brought against him is also

unavailing because Younger has failed to show that the

charges produced a constitutional deprivation. “An

inmate has no constitutional right to be free from being

falsely or wrongly accused of conduct.” Cooper v. Shearin,

JFM-10-3108, 2011 WL 6296799, at *3 (D. Md. Dec. 15,

2011). So long as an inmate is “granted a hearing, and had

the opportunity to rebut the unfounded or false charges,”

52a

the mere filing of a false charge against an inmate does

not work a constitutional harm. Id. (quoting Freeman v.

Rideout, 808 F.2d 949, 952-53 (2d Cir. 1986). There is no

dispute that Younger was granted a hearing on the

administrative charges brought against him. Younger

provides no evidence to support his claim that he “could

not call witnesses, present evidence, or rely on

investigative documents” to present a defense at his

administrative hearing. (Younger Resp. 11, ECF No.

195.) Moreover, there is no evidence that Crowder could

have prevented Younger from facing these charges.

Younger was not found guilty of these charges until

October 21, 2013, two weeks after Crowder was removed

from the Warden position. (Hearing Tr., Oct. 21, 2013,

25:9-14, ECF No. 207-3.) Accordingly, summary

judgment is granted in favor of Crowder on Younger’s

claim that Crowder exhibited deliberate indifference to

the filing of false charges against Younger.

In summary, Younger has raised a genuine dispute

concerning Crowder’s deliberate indifference to assaults

against inmates, and may proceed to trial on that theory.

Younger may not, however, proceed to trial on his theory

that Crowder exhibited deliberate indifference to his

medical needs or to false charges pursued against him.

VII. Qualified Immunity.

Crowder contends that he is shielded from liability as

to Younger’s § 1983 claims under the doctrine of qualified

immunity. “Qualified immunity shields government

officials from liability in a § 1983 suit as long as their

conduct has not violated ‘clearly established statutory or

constitutional rights of which a reasonable person would

have known.’” Humbert v. Mayor & City Council of

Baltimore City, 866 F.3d 546, 555 (4th Cir. 2017) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To

53a

determine whether an officer is entitled to qualified

immunity, the court must examine (1) whether the facts

illustrate that the officer violated the plaintiff’s

constitutional right . . . , and (2) whether the right was

clearly established at the time of the alleged event such

that ‘a reasonable officer would have understood that his

conduct violated the asserted right.’ ” Id. (quoting Miller

v. Prince George’s County, 475 F.3d 621, 627 (4th Cir.

2007)). “The answer to both questions must be in the

affirmative to defeat the officer’s entitlement to

immunity.” Id.

Seizing on a footnote from a Supreme Court opinion,

Crowder argues that the law was not sufficiently clear so

as to put him on notice that his actions—or inactions—

were unconstitutional. See Farmer v. Brennan, 511 U.S.

825, 834 n.3, 114 S. Ct. 1970 (1994) (declining to resolve “at

what point a risk of inmate assault becomes sufficiently

substantial for Eighth Amendment purposes”). With this

citation, Crowder appears to be arguing that officials can

never be held liable under a supervisory liability theory

because the Supreme Court has declined to precisely

quantify when a risk of constitutional injury becomes

sufficient to trigger liability.

Fourth Circuit precedent sufficiently notified

Crowder that failing to take action to protect inmates

from abuses at the hands of correctional officers could

lead to supervisory liability under § 1983. The Fourth

Circuit has recently affirmed that prisoners “have an

Eighth Amendment right to be protected from malicious

attacks, not just by other inmates, but also from the very

officials tasked with ensuring their security” and that this

right was clearly established as of April 2010. Thompson

v. Virginia, 878 F.3d 89, 109 (4th Cir. 2017). Accordingly,

qualified immunity cannot shield Crowder from

Younger’s claims.

54a

CONCLUSION

For the foregoing reasons, Defendant Crowder’s

Motion for Summary Judgment (ECF No. 185) is

GRANTED IN PART and DENIED IN PART.

Specifically, Summary Judgment is ENTERED in

Crowder’s favor on Younger’s claim that Crowder

exhibited deliberate indifference to Younger’s medical

needs and the false charges entered against him, but is

DENIED as to all other claims asserted against him.

Defendant Dupree’s Motion for Summary Judgment

(ECF No. 186) and the Motion for Summary Judgment

for all Claims in Amended Complaint against Defendant

Wallace Singletary (ECF No. 187) are DENIED in toto.

A separate Order follows.

Dated: December 19, 2019

_______/s/_______________

Richard D. Bennett

United States District Judge

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

KEVIN YOUNGER,

*

Plaintiff,

*

v.

*

JEMIAH L. GREEN, et

al.,

*

*

Defendants.

*

*

*

Civil Action No.

RDB-16-3269

*

*

*

*

*

*

*

MEMORANDUM OPINION

In the morning hours of September 30, 2013,

Sergeant Kwasi Ramsey (“Ramsey”), Sergeant Jemiah

Green (“Green”), and Correctional Officer Richard Hanna

(“Hanna”) of the Maryland Department of Public Safety

& Correctional Services (“DPSCS”) entered Plaintiff

Kevin Younger’s (“Plaintiff” or “Younger”) prison cell in

the Maryland Reception, Diagnostic & Classification

Center (“MRDCC”). After evacuating his cellmate, the

officers threw Younger from his top bunk to the concrete

floor, bludgeoned him with handcuffs and other tools, and

slammed his head against a toilet bowl. Ramsey, Hanna,

and Green have been convicted of their crimes;1 the acting

On May 6, 2015, Hanna pled guilty to conspiracy to commit first

degree assault. (Am. Compl. ¶ 94); State v. Hanna, Case No.

114260031 (Balt. City Cir. Ct), filed Sept. 17, 2014. On April 1, 2016, a

jury convicted Ramsey and Green on charges of second-degree

assault and misconduct in office. (Am. Compl. ¶ 95); State v. Ramsey,

Case No. 114260032 (Balt. City Cir. Ct.), filed Sept. 17, 2014; State v.

Green, Case No. 114260029 (Balt. City Cir. Ct.), filed Sept. 17, 2014.

1

(55a)

56a

Warden of MRDCC, Tyrone Crowder (“Crowder”) has

been removed from his post;2 and a jury assembled in the

Circuit Court for Baltimore City has found the State of

Maryland liable for Younger’s injuries.3

In this action, Younger pursues claims against his

assailants (Defendants Ramsey, Green, and Hanna) and

against the Division of Correction officials whom he

contends are responsible—Warden Crowder, Major

Wallace Singletary (“Singletary”), and Lieutenant Neil

Dupree (“Dupree”). In his Amended Complaint (ECF No.

140), he alleges violations of his rights under the Eighth

and Fourteenth Amendments to the United States

Constitution, pursuant to 42 U.S.C. § 1983, against

Crowder, Dupree, and Singletary (Count One);4 an

identical claim asserted against Ramsey, Green, and

Hanna (Count Two); Excessive Force, in violation of the

Maryland Declaration of Rights, Article 24, against

Ramsey, Green, and Hanna (Count Three);5 violations of

the Maryland Declaration of Rights, Article 24, against

2

(Am. Compl. ¶ 91.)

See Younger v. Maryland, Case No. 24-C-17-004752 (Balt. City Cir.

Ct.), filed Sept. 21, 2017.

4

Specifically, Younger alleges violations of his “right to be free from

the use of excessive and unreasonable force and seizure,” “the right

to be free from a deprivation of life and liberty without due process of

law,” “the right to be free from known risks of serious physical harm,”

the right to be free from deliberate indifference for a serious medical

need,” and “the right to be free from objectively unreasonable

conduct that causes, or has the potential to cause, constitutional

harm.” See Am. Compl., ¶ 113, ECF No. 140.

3

Articles 16, 24, and 25 of the Maryland Declaration of Rights are

interpreted in pari materia with their federal counterparts, the

Eighth and Fourteenth Amendments to the United States

Constitution. See, e.g., Evans v. State, 396 Md. 256, 327, 914 A.2d 25

(2006); Pitsenberger v. Pitsenberger, 287 Md. 20, 27, 410 A.2d 1052

(1980).

5

57a

Crowder, Dupree, and Singletary (Count Four); Battery

against Ramsey, Green, and Hanna (Count Five);

Intentional Infliction of Emotional Distress against

Ramsey, Green, and Hanna (Count Six); Conspiracy

against Ramsey, Green, and Hanna (Count Seven);

Negligent Retention, Training, and Supervision against

Crowder, Dupree, and Singletary (Count Eight);

Negligence against Crowder, Dupree, and Singletary

(Count Nine).

Now pending before this Court are a Motion to

Dismiss all Claims in the Amended Complaint Against

Defendant Tyrone Crowder (ECF No. 154); a Motion to

Dismiss all Claims in Amended Complaint Against

Defendant Wallace Singletary (ECF No. 155); and

Defendant Dupree’s Motion to Dismiss (ECF No. 156).

The parties’ Motions have been reviewed and no hearing

is necessary. See Local Rule 105.6 (D. Md. 2018). For the

reasons stated herein, all three Motions (ECF Nos. 154,

155, and 156) are DENIED.

BACKGROUND

In ruling on the pending motions to dismiss, the

factual allegations in the plaintiff’s complaint must be

accepted as true and those facts must be construed in the

light most favorable to the plaintiff. Wikimedia Found. v.

Nat’l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing

SD3, LLC v. Black & Decker (U.S.), Inc., 801 F.3d 412,

422 (4th Cir. 2015)). This Court may also consider

documents attached to a motion to dismiss so long as they

are “integral to the complaint and authentic.” Thompson

v. United States, RDB-15-2181, 2016 WL 2649931, at *2

58a

n.4 (D. Md. May 10, 2016), aff’d 670 F. App’x 781 (4th Cir.

2016) (citation omitted).6

I. Younger’s Assault by Ramsey, Green, and Hanna.

On September 29, 2013, Younger witnessed a fight

between two inmates and a correctional officer. (Id. ¶ 22.)

During the fight, the correctional officer was seriously

injured. (Id.) Subsequently, the two inmates who

participated in the confrontation were transferred from

the general housing unit and placed in various cells in

MRDCC. (Id. ¶ 24.) Younger and at least two other

prisoners were also transferred from the general housing

unit to other cells. (Id. ¶ 25.) In particular, Younger was

placed in the “5 Dormitory” with another individual. (Id.

¶ 26.)

On September 30, 2013 at approximately 6:30 a.m.,

Officer Hanna arrived at MRDCC, cleared the security

checkpoint, and climbed the stairs toward the roll call

room. (Id. ¶ 27.) Ramsey was waiting at the top of the

stairs. (Id.) When they met, Ramsey informed Hanna that

“they had some business to handle” and that he “sought

to exact revenge on the prisoners he and other

supervisory staff believed to be involved” in the prior

day’s altercation. (Id.) These prisoners and their cell

locations were identified on a list in Ramsey’s possession.

(Id. ¶ 28.) At some point, Green joined Hanna and Ramsey

and the three officers proceeded to the armory. (Id.)

Inside, Ramsey obtained handcuffs and a large mace

canister. (Id.) Upon exiting, the armory control officer did

not require Ramsey to sign the logbook as was required.

(Id.) From the armory, Ramsey, Green, and Hanna

This Court has previously addressed the facts of this case in a prior

Memorandum Opinion. (ECF No. 72.) This Memorandum Opinion

presents a new background in light of new allegations contained in

the Amended Complaint. (ECF No. 140.)

6

59a

proceeded to the elevator to the seventh-floor housing

unit. (Id.)

The three officers then “systematically moved about

MRDCC to each of the five prisoners’ cells, brutally

assaulting and beating each of the prisoners, including

Mr. Younger.” (Id. ¶ 29.) Between 6:40 and 7:00 a.m.,

Ramsey, Green, and Hanna entered Younger’s cell,

“grabbing Mr. Younger by his shirt and legs, and

throwing him from the top bunk onto the concrete floor.”

(Id. ¶¶ 30-33.) “Ramsey, Green, and Hanna proceeded to

attack Mr. Younger, striking him on the head, face, and

body, with handcuffs, radios, and keys, and slamming his

head against the toilet bowl in the cell,” all the while

verbally abusing him. (Id. ¶ 34.) They also “kicked and

stomped” on Younger as he lay helpless. (Id. ¶ 35.) As a

result of the beating, “Mr. Younger’s cell was covered in

blood, and Mr. Younger was bleeding profusely from his

head and face.” (Id. ¶ 37.)

Younger did not receive medical treatment

immediately following his assault. Ramsey, Green, and

Hanna left him “in a pool of blood on the concrete floor of

his cell, having difficulty breathing, without medical care

or attention.” (Id. ¶ 38.) After the three officers assaulted

the prisoners on Ramsey’s list, they returned to the

second floor and stood outside of the roll call room. (Id. ¶

43.) With this positioning, the officers ensured that they

would be able to escort the prisoner victims to the medical

unit. (Id.)

During roll call that morning, Lieutenant Neil

Dupree and Major Wallace Singletary displayed

photographs of the injured correctional officers and the

inmates who they believed were involved in the

altercation on the previous day. (Id. ¶¶ 49, 50.) Dupree and

Singletary also circulated pictures of the five prisoners

60a

who were removed from the general housing unit

following the September 29, 2013 fight—including

Younger—and represented that these prisoners were

responsible for the altercation. (Id. ¶¶ 51, 52.)

Between 8:00 and 8:30 a.m., medical alerts began to

sound for each of the five prisoners attacked by Ramsey,

Green, and Hanna. (Id. ¶ 55.) A tier officer eventually

discovered Younger. (Id. ¶ 44.) In the company of other

officers, Green pushed Younger in a wheelchair toward

the medical unit. (Id. ¶¶ 45, 46.) When Dupree arrived in

response to the medial alerts, he observed correctional

officers bringing Younger down the stairs toward the

medical unit and asked Ramsey what had happened. (Id.

¶ 57.) Ramsey claimed that Younger had “fell,” and

Dupree allegedly “accepted this explanation, despite Mr.

Younger’s injuries being markedly inconsistent with the

asserted explanation, even to a medically untrained eye.”

(Id. ¶ 58.) Dupree allegedly failed to seek emergency

attention, launch an investigation into Younger’s injuries,

or interview Younger and his cellmate. (Id. ¶¶ 60, 61, 62.)

In the medical unit, Green brought Younger an Incident

Report form and a pen. (Id. ¶ 46.) Green then ordered

Younger “to note that he sustained his injuries by falling

from his bunk bed.” (Id.) After receiving some medical

care that morning, Younger was returned to his cell by

Green and Ramsey. (Id.)

During the afternoon roll call that day, Warden

Crowder chastised the correctional officers involved in

the altercation of September 29, 2013. (Id. ¶ 53.) He

criticized the officers for being “soft” and told them that

they “should had [sic] beat the inmates” who were

allegedly involved in the fight. (Id.) That evening,

Crowder entered Younger’s cell, where he was cowering

in fear underneath of his bunkbed. (Id. ¶ 66.) Younger told

Crowder that he had been beaten and that he had helped

61a

the correctional officer who had been injured on

September 29. (Id. ¶ 68.) During their discussion,

Crowder indicated that prison leadership was aware that

he had assisted the officer and assured Younger that he

would be moved to another cell block. (Id.) Younger was

relocated that evening. (Id.) On October 1, 2013, Younger

sought and obtained medical assistance by advising the

chief of security about his attack. (Id. ¶ 70.)

Although prison leadership was aware that Younger

had assisted the injured officer on September 29, 2013,

Younger nevertheless faced administrative charges. (Id. ¶

71.) During his disciplinary hearing, he was not permitted

to call witnesses or present evidence. (Id. ¶ 72.) Younger

was physically incapable of presenting a defense during

the hearing because he was still recovering from his

injuries. (Id.) As punishment for the charges, Plaintiff was

sentenced to 120 days (four months) in solitary

confinement, during which time he could not access full

medical services. (Id. ¶¶ 72, 76.) On October 24, 2013,

Plaintiff was criminally charged with second degree

assault for his alleged involvement in the same September

29, 2013 incident. (Id. ¶ 73.) The State later dismissed

these charges. (Id. ¶ 93.)

II. Widespread, Documented Inmate Abuse at the

Maryland Reception, Diagnostic & Classification

Center.

Younger alleges that his assault took place in the

context of civil rights abuses and “vigilante justice”

fostered by Defendants Crowder, Singletary, and Dupree

at MRDCC. (Am. Compl. ¶¶ 13, 14, 21, ECF No. 140.) This

culture manifested in frequent inmate abuses and

disregard for prison protocol. Officers allegedly utilized a

special call code on their MRDCC radios to signal a

“select group of first responders who would dole out

62a

extrajudicial punishment on prisoners with whom they

had an issue.” (Id. ¶ 14.) The officers allegedly did not fear

punishment for their actions, instead “believ[ing] that

they could improperly assault prisoners and then cover up

those incidents with impunity.” (Id. ¶ 21.) The staff at

MRDCC also disregarded annual in-service trainings,

which some supervisory personnel considered “a joke”

and “a waste of . . . time.” (Id. ¶ 20.)

Younger alleges that Crowder, Dupree, and

Singletary were aware that Ramsey, Green, and Hanna

had been suspected of use-of-force abuses long before

Younger’s assault. Younger claims that Crowder, Dupree,

and Singletary knew that Green and Ramsey had been the

subject of “active criminal assault investigations, and

numerous excessive use of force investigations, some of

which were sustained.” (Id. ¶¶ 96, 97.) He further alleges

that Crowder, Dupree, and Singletary were aware that

Hanna had “been involved in previous use of force

complaints and investigations.” (Id. ¶ 98.)

Crowder, in particular, allegedly ignored repeated

warnings about Green and Ramsey from MRDCC staff.

In September 2012, the assistant warden at MRDCC

notified Crowder “that she was concerned about seeing

the same officers’ names, including Green and Ramsey,

appearing in use of force reports.” (Id. ¶ 17.) When

Crowder attempted to rationalize Green and Ramsey’s

behavior as the work of “first responders to fluid

situations,” the assistant warden pressed: she noted that

the officers were “previously suspended for this conduct

and suspensions indicate a real problem.” (Id.) In May

2013, the investigative captain approached Crowder and

recommended additional use of force training, noting that

Ramsey and Green had repeatedly appeared in use of

force incident reports. (Id. ¶ 18.) When Crowder refused

to respond, the investigative captain conducted

63a

impromptu use of force training for these officers. (Id.) In

July 2013, the investigative captain told Crowder that

Green should receive a disciplinary sanction for his

involvement in another use of force complaint,

complaining “that other involved officers lied to cover for

Green and that foreclosed any ability to discipline Green.”

(Id. ¶ 19.)

The nature of Dupree’s job ensured that he was

exposed to information about Ramsey, Green, and

Hanna’s misconduct. Dupree was required to prepare a

“Scrutinized/Compromised Staff Report” for DPSCS

headquarters. (Id. ¶ 100.) The report listed all correctional

staff at MRDCC who were under investigation or were

suspected of violating prison policies and protocols. (Id.)

While preparing the report, Dupree would “synthesize

information” concerning staff misconduct and review a

draft with the warden before finalizing it. (Id.) Younger

alleges that the names of Ramsey, Green, and Hanna

were contained in the Report. (Id.)

Dupree also personally assisted Ramsey, Green, and

Hanna with their retributory assaults. (Id. ¶ 101.) Dupree

frequently forwarded staff complaints about prisoners to

the trio, who would respond with violence. (Id.) Dupree

was allegedly aware that Ramsey, Green, and Hanna

would abuse inmates after he forwarded them information

of this kind and that the medical staff were complicit in

their activities, but did nothing to stop them. (Id.)

Finally, Younger alleges that Singletary had

knowledge of Ramsey, Green, and Hanna’s misconduct

but did not attempt to prevent it. (Id. ¶ 103.) For example,

Singletary was allegedly present when Ramsey, Green,

and Hanna beat a prisoner who was shackled in a threepoint restraint. (Id.) Singletary also allegedly knew that

Ramsey, Green, and Hanna would leave prisoners in the

64a

showers for hours at a time. (Id.) Although Singletary was

their most senior supervisory, he allegedly failed to report

these incidents. (Id.)

III. Criminal and Civil Proceedings.

Following Younger’s assault, prison staff were

subject to administrative and criminal investigations. On

October 1, 2013, the Intelligence and Investigative

Division of the Maryland Department of Public Safety

and Correctional Services (“DPSCS”) launched an

investigation following the assault of Younger and other

prisoners. (Id. ¶ 87.) The investigation concluded that on

the morning of September 30, 2013, Ramsey, Green, and

Hanna assaulted five prisoners, including Younger, whom

they believed were involved in the fight on the previous

evening. (Id. ¶ 88.) The investigation also concluded that

Crowder failed to take appropriate steps following the

September 29, 2013 assault and “did not ensure the safety

of the five inmates and . . . failed to instruct staff to check

the welfare of the five named inmates in the assault.” (Id.

¶ 90.) On October 7, 2013, the State demoted Crowder and

placed him on administrative leave. (Id. ¶ 91.)

On September 17, 2014, Ramsey, Green, and Hanna

were criminally indicted for their assault of the five

prisoners.7 (Id. ¶ 92.) Prior to the indictments, Younger

provided testimony to secure Green, Ramsey, and

Hanna’s convictions. (Id. ¶ 93.) On May 6, 2015 Hanna

pled guilty to conspiracy to commit first degree assault.

(Id. ¶ 94.) On April 1, 2016, a jury found Green and

See State v. Hanna, Case No. 114260031 (Balt. City Cir. Ct), filed

Sept. 17, 2014; State v. Ramsey, Case No. 114260032 (Balt. City Cir.

Ct.), filed Sept. 17, 2014; State v. Green, Case No. 114260029 (Balt.

City Cir. Ct.), filed Sept. 17, 2014.

7

65a

Ramsey guilty of second degree assault and misconduct

in office. (Id. ¶ 95.)

On September 28, 2016, Younger filed suit in this

Court against the State of Maryland, Stephen T. Moyer,

the then-acting Secretary of the Maryland Department

Public Safety & Correctional Services, Stephen T. Moyer,

the former MRDCC Warden Tyrone Cowder; Pamela

Dixon, Wallace Singletary, Neil Dupree, Jemiah Green,

Richard Hanna, Kwasi and Ramsey. (ECF No. 1.) In a

Memorandum Opinion issued on August 22, 2017, this

Court dismissed all claims asserted against the State of

Maryland and Stephen T. Moyer in his official capacity on

sovereign immunity grounds. (Mem. Op. 9-10, ECF No.

72.) This Court also dismissed Younger’s individual

capacity claims against Moyer failure to state a claim

pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure. (Id. at 10-13.)

Subsequently, in September 2017, Younger filed suit

against the State of Maryland in the Circuit Court for

Baltimore City, Case No. 24-C-17-004752. (Case

Information, ECF No. 154-4.) While the State case

proceeded, this Court stayed the Scheduling Order to

facilitate settlement negotiations. (ECF No. 96.) In May

2019, Younger was granted leave to file an Amended

Complaint in the State action. (Id. at 14.) In his Amended

Complaint, Younger asserted three claims against the

State of Maryland: Excessive Force in Violation of the

Maryland Declaration of Rights, Article 24 (Count I),

Cruel and Unusual Punishment in Violation of the

Maryland Declaration of Rights, Article 16 and 25 (Count

II), and Negligent Hiring, Training, and Supervision

(Count III). (Am. Compl. ¶¶ 98-141, ECF No. 154-3.) The

case was submitted to a jury, which found in favor of

Younger and awarded him $2,700,000.00. (Verdict Sheet,

66a

ECF No. 154-5.) Specifically, the jury answered the

following two questions affirmatively:

1. Do you find by a preponderance of the evidence

that the Defendant, State of Maryland, violated the

Plaintiff, Kevin Younger’s rights under the Maryland

Declaration of Rights, and that this violation was a

proximate cause of Kevin Younger’s injuries?

2. Do you find by a preponderance of the evidence

that the Defendant, State of Maryland, negligently

supervised, trained, or retained its correctional staff

at MRDCC, and that this negligence was a proximate

cause of the Plaintiff, Kevin Younger’s injuries?

(Id.) On Motion by the State, the Circuit Court reduced

the judgment to $200,000.00, the maximum amount

recoverable under the Maryland Tort Claims Act. (ECF

No. 154-4 at 19-20.) The State appealed the Judgment on

August 2, 2019. (Id. at 20.)

On June 18, 2019, this Court lifted the Stay in this

matter. (ECF No. 128.) On July 30, 2019, Younger filed an

Amended Complaint. (ECF No. 140.) In response, the

presently pending motions to dismiss were filed: a Motion

to Dismiss all Claims in the Amended Complaint Against

Defendant Tyrone Crowder (ECF No. 154); a Motion to

Dismiss all Claims in Amended Complaint Against

Defendant Wallace Singletary (ECF No. 155); and

Defendant Dupree’s Motion to Dismiss (ECF No. 156).

STANDARD OF REVIEW

Under Rule 8(a)(2) of the Federal Rules of Civil

Procedure, 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). Rule 12(b)(6) of the

Federal Rules of Civil Procedure authorizes the dismissal

of a complaint if it fails to state a claim upon which relief

67a

can be granted. The purpose of Rule 12(b)(6) is “to test

the sufficiency of a complaint and not to resolve contests

surrounding the facts, the merits of a claim, or the

applicability of defenses.” Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The

United States Supreme Court’s recent opinions in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that

complaints in civil actions be alleged with greater

specificity than previously was required.” Walters v.

McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation

omitted). In Twombly, the Supreme Court articulated

“[t]wo working principles” that courts must employ when

ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S.

at 678. First, while a court must accept as true all the

factual allegations contained in the complaint, legal

conclusions drawn from those facts are not afforded such

deference. Id. (stating that “[t]hreadbare recitals of the

elements of a cause of action, supported by mere

conclusory statements, do not suffice” to plead a claim);

see also Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365

(4th Cir. 2012) (“Although we are constrained to take the

facts in the light most favorable to the plaintiff, we need

not accept legal conclusions couched as facts or

unwarranted inferences, unreasonable conclusions, or

arguments.” (internal quotation marks omitted)). Second,

a complaint must be dismissed if it does not allege “a

plausible claim for relief.” Iqbal, 556 U.S. at 679.

68a

ANALYSIS

I. The doctrine of res judicata does not bar Younger’s

claims.

All Defendants argue that the doctrine of res judicata

bars the claims asserted against them.8 To determine the

preclusive effect of Younger’s favorable state court

judgment, this Court applies Maryland law. See Laurel

Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 162 (4th Cir.

2008) (holding that the “preclusive effect of a judgment

rendered in state court is determined by the law of the

state in which the judgment was rendered”). In Maryland,

res judicata “bars the relitigation of a claim if there is a

final judgment in a previous litigation where the parties,

the subject matter, and the causes of action are identical

or substantially identical as to issues actually litigated and

as to those which could have or should have been raised

in the previous litigation.” Cochran v. Griffith Energy

Servs., Inc., 426 Md. 134, 140, 43 A.3d 999 (2012) (quoting

R&D 2001, LLC v. Rice, 402 Md. 648, 663, 938 A.2d 839

(2008) (emphasis added)). The doctrine “avoids the

expense and vexation attending multiple lawsuits,

conserves the judicial resources, and fosters reliance on

judicial action by minimizing the possibilities of

inconsistent decisions.” Anne Arundel Cty. Bd. of Educ.

v. Norville, 390 Md. 93, 106, 887 A.2d 1029 (2005) (citation

omitted). Maryland courts often describe the doctrine as

consisting of the following three elements: “(1) the parties

in the present litigation are the same or in privity with the

parties to the earlier litigation; (2) the claim presented in

Although res judicata is an affirmative defense, it may be asserted

upon a Rule 12(b)(6) motion when the defense “clearly appears on the

face of the complaint.” Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th

Cir. 2000) (quoting Richmond v. Fredericksburg & Potomac R. Co. v.

Forst, 4 F.3d 244, 250 (4th Cir. 1993)).

8

69a

the current action is identical to that determined or that

which could have been raised and determined in the prior

litigation; and (3) there was a final judgment on the merits

in the prior litigation.” Bank of New York Mellon v.

Georg, 456 Md. 616, 678, 175 A.3d 720 (2017) (quoting

Powell v. Breslin, 430 Md. 52, 64-64, 59 A.3d 531 (2013)).

The parties agree that there has been a final

judgment on the merits. (Pl.’s Resp. 22, ECF No. 166.)

Plaintiff argues that res judicata does not apply in this

action because the Defendants are not in privity with the

State of Maryland—the Defendant in the State case.

There is no dispute that this case involves different

defendants than those sued in State court. In the State

action, Younger sued only the State of Maryland. In this

action, Younger sues the State of Maryland’s employees

who were allegedly responsible for his injuries. This

Court need only consider whether the employeedefendants sued in this action are in privity with the State

for purposes of Maryland’s doctrine of res judicata. They

are not. Under Maryland law, plaintiffs may maintain the

same cause of action against employees and employers in

separate suits, so long as the separate suits require the

adjudication of separate defenses. In such circumstances,

the Maryland courts do not consider the employer and

employee in privity for purposes of res judicata. In this

case, the State of Maryland presented an immunity

defense in federal court which required Younger to bring

claims against it in State court, while maintaining a

separate action in federal court against the State

employees. Under these circumstances, the doctrine does

not apply.

In the res judicata context, privity “generally

involves a person so identified in interest with another

that he represents the same legal right.” FWB Bank v.

Richman, 354 Md. 472, 498 (1999). In determining

70a

whether parties are the same or are in privity with one

another for purposes of res judicata, Maryland courts

look to The Restatement (Second) of Judgments § 51

(1982). See Prince George’s Cty. v. Brent, 414 Md. 334,

343, 995 A.2d 672 (2010) (quoting The Restatement

(Second) of Judgments § 51 (1982)). Section 51 reads, in

relevant part, as follows:

Persons Having a Relationship in Which One is

Vicariously Responsible for the Conduct of the Other

If two persons have a relationship such that one of

them is vicariously responsible for the conduct of the

other, and an action is brought by the injured person

against one of them, the judgment in the action has

the following preclusive effects against the injured

person in a subsequent action against the other.

(1) A judgment against the injured person that bars

him from reasserting his claim against the defendant

in the first action extinguishes any claim he has

against the other person responsible for the conduct

unless:

(a) The claim asserted in the second action is based

upon grounds that could not have been asserted

against the defendant in the first action; or

(b) The judgment in the first action was based on a

defense that was personal to the defendant in the

first action.

(2) A judgment in favor of the injured person is

conclusive upon him as to the amount of his damages,

unless:

...

(b) Different rules govern the measure of damages

in the two actions.

71a

The Restatement (Second) of Judgments § 51.

In general, Maryland law “recognizes that a principal

and his agent are in privity.” Kutzik v. Young, 730 F.2d

149, 152 (4th Cir. 1984) (citing McKinzie v. Baltimore &

Ohio R.R., 28 Md. 161 (1868)); see also Savary v. Cody

Towing & Recovery, Inc., DKC-10-2159, 2011 WL 337345,

at *3-4 (D. Md. Jan. 31, 2011) (holding that financing

company and its authorized agent, a towing company

charged with repossessing an all-terrain vehicle from a

customer, were in privity for purposes of res judicata).

Employers and employees are also in privity for purposes

of this doctrine, so long as they cannot invoke separate

defenses. See deLeon v. Slear, 328 Md. 569, 586-88, 616

A.2d 380 (1992) (finding that employer and employees

were in privity in separately-maintained defamation suits

because the defense of conditional privilege, asserted in

the prior action, “would seem to be fully applicable” to

defendants in the subsequent suit).

In Prince George’s Cty. v. Brent, 414 Md. 334 (2010),

the Maryland Court of Appeals determined that a prior

judgment against a government entity does not preclude

the same plaintiff from asserting the same claim against

the entity’s employee, so long as the separate suits

present separate defenses unique to the defendants. 414

Md. at 342-49. Brent arose from an automobile accident

between Officer Michael W. Daily of the Prince George’s

County Police Department and the Plaintiff, Cleveland

Brent. Id at 336. In the first action (Brent I), Brent filed a

negligence claim against Prince George’s County and

obtained a jury verdict in the amount of $320,000.00. Id.

The judgment was subsequently reduced to $20,000.00

pursuant to Md. Code Ann., Cts. & Jud. Proc. § 5-524,

which creates a limited waiver of sovereign immunity and

governmental immunity “to the extent of benefits

provided by the security accepted by the Motor Vehicle

72a

Administration.” Id. The $20,000.00 figure corresponded

to the “security accepted by the Motor Vehicle

Administration” per person per accident under Md. Code

Ann. Transp. § 17-103(b)(1). Id.

In the second action (Brent II), Brent attempted to

circumvent the effects of the County’s governmental

immunity and the reduction of judgment effectuated by §

5-524 by filing suit directly against Officer Daily. Id. at

338. In Brent II, Officer Daily asserted an immunity

defense based on Md. Code Ann., Cts. & Jud. Proc. § 5639(b)(1), which provides immunity to “operator[s] of an

emergency vehicle . . . while operating the emergency

vehicle in the performance of an emergency service.”

Brent, 414 Md. at 338. The case was submitted to a jury,

which was charged with resolving the sole issue of

whether Officer Daily was operating his vehicle “in the

performance of an emergency service.” Id. at 338-39. The

jury answered that question in the negative. Id. Per the

parties’ agreement, judgment was entered in favor of

Brent for $200,000.00, against which the $20,000.00 paid

by the County was credited. Id. at 339-40. Asserting res

judicata, the County appealed the judgment to the

Maryland Court of Special Appeals, and subsequently, to

the Maryland Court of Appeals. Id. at 340.

The Court of Appeals determined that res judicata

did not apply, holding that master and servant are not

“privies” for the purpose of the res judicata doctrine. Id.

at 342, 349. More broadly, Brent held that a tort plaintiff

may sue only the employer or employee, obtain a

judgment, and then sue the remaining defendant. Brent,

414 Md. at 345. The Court reasoned that a tort plaintiff “is

not required to join both [the employer and employee] and

may decide to bring suit in the first instance against only

of them” and that “one of the obligors may be immune to

suit while the other is not.” Id. at 343 (quoting

73a

Restatement (Second) of Judgments § 51 cmt. a (1982)).

For these reasons, a lawsuit maintained against an

employer may present separate claims, ill-suited for the

application of res judicata. Id. at 343. So long as the claim

has not been satisfied, the plaintiff is permitted to pursue

it.

Applying Maryland law and The Restatement

(Second) of Judgments § 51, this Court has likewise held

that a defendant-employer and defendant-employee are

not in privity for purposes of res judicata when the two

are able to assert separate defenses. See Church v.

Maryland, 180 F. Supp. 2d 708, 752 (D. Md. 2002). In

Church, an employee, Rita M. Church, filed suit against a

coworker for sexual harassment in State court. 180 F.

Supp. 2d at 746-47. The State court dismissed the claim

with prejudice, holding that a Title VII action cannot lie

against an individual. Id. Subsequently, the plaintiff filed

suit against her employer in federal court. The employer

asserted a res judicata defense, arguing that Church’s

employer and her co-worker were in privity for purposes

of the doctrine. Id. at 746-47. This Court rejected that

contention, finding that “both exceptions” presented in

The Restatement (Second) of Judgments § 51 applied

because the plaintiff could only pursue her Title VII claim

against her employer and that her coworker had a unique

defense in the prior action—the inapplicability of Title

VII—which the employer could not assert in the second

suit. Id. at 752.

The Defendants in this case—Ramsey, Green,

Hanna, Crowder, Dupree, and Singletary—are not in

privity with the State of Maryland for purposes of res

judicata because the judgment obtained against the State

of Maryland in the State court action was “based on based

on a defense that was personal to the defendant in the first

action.” The Restatement (Second) of Judgments § 51

74a

(1982). Brent and Church mandate this conclusion. As in

Brent, Younger has obtained a favorable judgment and

damages award against a government entity which was

subsequently reduced as a result of a limited waiver of

immunity. Just as Brent was permitted to sue the

employee responsible for his injuries, Younger may now

resume his suit against the government’s employees in

their individual capacities. As in Brent, the individual

Defendants will assert defenses unavailable in the State

action, including the defense of qualified immunity. The

availability of unique defenses to these defendants

indicates that the State of Maryland and its employees’

interest are not so aligned as to render them “the same”

or “in privity” for purposes of res judicata. Additionally,

this action presents new issues unresolved in State court

and the prospect of an independent damages award.

Accordingly, Younger may pursue this action. Brent

explicitly condones this outcome—it broadly permits tort

plaintiffs to sue an employer, then pursue an employee so

long as the asserted claims remain unsatisfied. That is the

situation here (see ECF No. 166 at 27), and so Younger’s

case will proceed.

This case also resembles the situation in Church, in

which an employee was permitted to file a suit against her

employer after her sexual harassment claims against her

coworker were dismissed. In this case, Younger’s claims

against his employer were dismissed by this Court,

prompting him to sue in State court, where his jury award

was dramatically reduced based on the State’s sovereign

immunity defense. Just as Church was afforded an

opportunity to pursue her claims against her employer

despite an unfavorable adjudication in the prior action, so

too must Younger be permitted to sue the employees

allegedly responsible for causing him harm despite the

75a

dramatic reduction in the jury’s damage award in the

State action.

II. The Maryland Tort Claims Act does not bar

Younger’s state-law claims.

Defendants argue, as they did previously in this case,

that they are immune to Younger’s state claims because

Younger has failed to allege that they acted with malice or

gross negligence as is required by the Maryland Tort

Claims Act. Alternatively, Defendants argue that

Younger is estopped from alleging that the defendants

have acted with malice or gross negligence because

Younger’s action against the State of Maryland required

him to demonstrate that the Defendants acted without

malice or gross negligence. Neither of these contentions

are availing. Younger’s Amended Complaint sufficiently

alleges that Crowder, Dupree, and Singletary each

condoned or intentionally failed to prevent widespread

abuses against inmates, including the harm meted out

against Younger.

The MTCA offers “a limited waiver of sovereign

immunity” and “is the sole means by which the State of

Maryland may be sued in tort.” Paulone v. City of

Frederick, 718 F. Supp. 2d 626, 637 (D. Md. 2010) (citation

omitted). The State’s immunity is not waived for the

tortious acts or omissions of state personnel that fall

outside of the scope of their public duties or are

committed with malice or gross negligence. Cts & Jud.

Proc. § 5-522(b). Likewise, “Maryland officials are

granted immunity under the Maryland Tort Claims Act .

. . for [tortious acts or omissions] committed within the

scope of their duties when the violations are made

‘without malice or gross negligence.’” Housley v.

Holquist, 879 F. Supp. 2d 472, 482–83 (D. Md. 2011)

(quoting Lee v. Cline, 863 A.2d 297, 304 (Md. 2004)). In

76a

this context, “malice” means “actual malice” or “conduct

‘characterized by evil or wrongful motive, intent to injure,

knowing and deliberate wrongdoing, ill-will or fraud.’”

Lee v. Cline, 384 Md. 245, 268, 863 A.2d 297, 311 (2004).

“[A]n officer’s actions are grossly negligent ‘when they

are ‘so heedless and incautious as necessarily to be

deemed unlawful and wanton, manifesting such a gross

departure from what would be the conduct of an

ordinarily careful and prudent person under the same

circumstances so as to furnish evidence of indifference to

consequences.’” Housley v. Holquist, 879 F. Supp. 2d 472,

482-83 (D. Md. 2011) (quoting Henry v. Purnell, 652 F.3d

524, 536 (4th Cir. 2011)). The Fourth Circuit has made

clear that “[w]hether an officer’s actions are grossly

negligent, and therefore unprotected by statutory

immunity, is generally a question for the jury.” Henry,

652 F.3d at 536 (citing Taylor v. Harford County Dep’t of

Soc. Servs., 862 A.2d 1026, 1034 (Md. 2004)).

Defendants’ argument that Younger has failed to

allege malice or gross negligence is meritless. This Court

previously rejected these arguments. (Mem. Op. 17-19,

23-24, ECF No. 72.) The Amended Complaint’s slight

adjustments to Younger’s factual allegations have little

effect on this Court’s analysis. Younger has at the very

least alleged that the Defendants acted with gross

negligence by intentionally failing to perform their most

basic duties with reckless disregard for the consequences

to Younger’s safety. The Complaint both generally alleges

that Crowder, Dupree, and Singletary sanctioned and

encouraged an environment which perpetuated

widespread inmate abuse and cites specific incidents in

which the three abandoned their responsibilities to the

detriment of MRDCC inmates. For example, Crowder is

alleged to have ignored explicit, repeated complaints

about Ramsey and Green, and to have expressly

77a

encouraged officers to abuse inmates. (Am. Compl. ¶¶ 1719, 53.) Dupree is alleged to have prepared reports which

made him aware of Ramsey, Green, and Hanna’s conduct

but nevertheless continued to forward complaints about

inmates to these three individuals, thereby ensuring

further abuse. (Id. ¶¶ 100, 101.) Singletary is alleged to

have witnessed Ramsey, Green, and Hanna abuse

inmates—including the assault of an inmate confined by a

three-point restraint—and failed to take any action to

stop these abuses. (Id. ¶ 103.) Although the factual

allegations with respect to Crowder have changed—he is

no longer alleged to have shown photographs of Younger

and other inmates during roll call—these minor

alterations have little bearing on the analysis. The totality

of the Amended Complaint clearly alleges that Crowder,

Dupree, and Singletary behaved in an unlawful and

wanton manner and are not shielded by the MTCA.9

Contrary to the Defendants’ assertions, judicial

estoppel does not foreclose Younger from alleging that

Crowder, Dupree, and Singletary acted with gross

negligence. The doctrine of judicial estoppel prevents a

party from adopting a position inconsistent with a position

taken in prior litigation. Zinkand v. Brown, 478 F.3d 634,

638 (4th Cir. 2007). The purpose of judicial estoppel is to

prevent litigants from “playing fast and loose with the

courts, and to protect the essential integrity of the judicial

process.” Lowery v. Stovall, 92 F.3d 219, 223 (4th Cir.

1996) (John S. Clark Co. v. Faggert & Frieden, P.C., 65

F.3d 26, 28-29 (4th Cir. 1995)). For judicial estoppel to bar

Younger’s claims, Defendants must establish that (1)

Curiously, Younger has withdrawn his gross negligence cause of

action and now brings only a garden-variety negligence claim (Count

Nine) against Crowder, Dupree, and Singletary. Despite this change,

dismissal is not warranted because Younger has sufficiently alleged

that the Defendants acted with gross negligence.

9

78a

Younger’s positions are inconsistent, (2) Younger’s prior

inconsistent position must have been accepted by the

tribunal in the prior proceedings, and (3) Younger must

have acted in bad faith, intentionally misleading either

court to gain an unfair advantage. Zinkand, 478 F.3d at

638.

Defendants maintain that, in order to prevail in the

State action, Younger had to show that the “actionable

conduct” was committed within the scope of the State

officials’ public duties and without malice or gross

negligence. See Md. Code Ann., State Gov’t § 12-104(b).

Defendants argue that this case and the State action are

based on the same “actionable conduct” and, accordingly,

Younger cannot now sue the individual defendants for

acting with gross negligence. The record reflects,

however, that the State court had a different conception

of the prior action. As the Honorable Julie R. Rubin

remarked:

Here the theory doesn’t rest on persuading the jury

or me first that, for example, Sergeant Ramsey or

Officer Hannah [sic] acted within or acted

negligently. I think it somewhat kind of turns it on its

head and says, yeah, these folks acted deliberately,

intentionally to hurt this man. . . . And that was within

the scope of their duties because the State’s purpose

in how it managed that facility was with an eye toward

intentionally injuring individuals in Mr. Younger’s

position.

And so it’s sort of an – puts me in a curious position

because the theory of the case isn’t that the jury

should hold the State liable because these guys acted

negligently. The theory is that the State is a

participant.

(Trial Tr. (June 10, 2019) 127:9-23, ECF No. 161-4.)

79a

From these remarks, it is apparent that the

“actionable conduct” in the State case differs significantly

from the “actionable conduct” presented in this case.

Specifically, it appears from Judge Rubin’s remarks that

the that the actions of the State itself—as distinguished

from the allegations complained of in this case—were at

issue in State court. Accordingly, Younger may allege that

the Defendants acted with gross negligence in this action

despite prevailing against the State in the prior action.

III. Younger has stated a claim under 42 U.S.C. § 1983.

Defendants argue that Plaintiff has failed to state a

claim under 42 U.S.C. § 1983. This Court has previously

rejected this argument on the force of the allegations

presented in the Original Complaint. (Mem. Op. 14-16, 2022, ECF No. 72.) Although those factual allegations have

changed slightly, this Court discerns no basis for

departing from its prior holding.

As explained in this Court’s prior Memorandum

Opinion, Younger has undoubtedly alleged a violation of

his rights. “There is no serious dispute that [Younger] was

beaten by correctional officers Kwasi Ramsey, Jemiah

Green, and Richard Hanna in retaliation” for the assault

on a correctional officer. (State Def. Mot. 3, ECF No. 461.) Although Younger does not allege that the Defendants

personally assaulted him, he has stated a claim for

“supervisory liability” under 42 U.S.C. § 1983. As this

Court has previously explained, Young-Bey v. B.A.

Daddysboy, Cos, et al., No. JFM-15-3642, 2017 WL

3475667, at *6 (D. Md. Aug. 10, 2017), “[i]t is well

established that the doctrine of respondeat superior does

not apply in § 1983 claims.” (citing Love-Lane v. Martin,

355 F.3d 766, 782 (4th Cir. 2004)). However, “[l]iability of

supervisory officials ‘is not based on ordinary principles

of respondeat superior, but rather is premised on a

80a

recognition that supervisory indifference or tacit

authorization of subordinates’ misconduct may be a

causative factor in the constitutional injuries they inflict

on those committed to their care.’” Id. (quoting Baynard

v. Malone, 268 F.3d 228, 235 (4th Cir. 2001)). “Supervisory

liability under § 1983 must be supported with evidence

that: (1) the supervisor had actual or constructive

knowledge that his subordinate was engaged in conduct

that posed a pervasive and unreasonable risk of

constitutional injury to citizens like the plaintiff; (2) the

supervisor’s response to the knowledge was so inadequate

as to show deliberate indifference to or tacit authorization

of the alleged offensive practices; and (3) there was an

affirmative causal link between the supervisor’s inaction

and the particular constitutional injury suffered by the

plaintiff.” Id. (citing Shaw v. Stroud, 13 F.3d 791, 799 (4th

Cir. 1994)).10

In this case, Younger has sufficiently alleged that all

Defendants had actual or constructive knowledge of

Ramsey, Green, and Hanna’s unconstitutional behavior.

The Amended Complaint describes a lawless environment

permeated by “vigilante justice.” (Am. Compl. ¶¶ 13-14.)

It is in this context that Crowder ignored his supporting

officer’s complaints about Ramsey, Green, and Hanna’s

behavior. (Id. ¶ 111.) On the same day of Younger’s

beating, Crowder is alleged to have chastised the

MRDCC officers as “soft” and encouraged them to beat

inmates. (Id. ¶ 53.) After Younger’s assault, he allegedly

entered his cell and expressed his understanding that

The parties debate whether Younger should be considered a

“pretrial detainee” or a “prisoner” for purposes of this analysis. As

discussed infra, the record is somewhat ambiguous on this issue. The

Court need not resolve the issue for purposes of its § 1983 analysis,

because Younger has satisfied the more rigorous standards

applicable to prisoners.

10

81a

Younger had not attempted to harm the injured officer on

the previous day—and yet Younger was still subject to

disciplinary action. (Id. ¶¶ 68, 71, 73.) These allegations

sufficiently demonstrate that Crowder not only

demonstrated an “inadequate response” to his inferior

officer’s behavior, but expressly sanctioned it and

encouraged it.

The allegations against Dupree and Singletary are of

a similar variety. Singletary was the shift commander for

Ramsey, Green, and Hanna. (Id. ¶ 102.) He was present in

2013 when the three officers beat an inmate who was

shackled in a three-point restraint, and never reported

this incident. (Id. ¶ 103.) Dupree was tasked with

compiling a report which “listed correctional staff at

MRDCC who were either under investigation, or were

suspected of violating prison policies and protocols” and

that Ramsey, Green, and Hanna were among those staff

suspected of wrongdoing. (Id. ¶ 100.) Nevertheless,

Dupree funneled staff complaints about inmates to the

trio, knowing that they would carry out retributory

violence. (Id. ¶ 101.) Though Singletary and Dupree may

not have contemplated an assault against Younger in

particular, the law does not impose this requirement—

only that the defendant in question is alleged to have been

aware of a risk of constitutional injury to citizens “like the

plaintiff.” Shaw, 13 F.3d at 799. For all of these reasons,

Younger has sufficiently pled a § 1983 cause of action

against the Defendants.

IV. Younger has stated a claim under Article 24 of the

Maryland Declaration of Rights.

Finally, Defendants argue that Younger’s excessive

force claims are “rooted in the Eighth Amendment and,

by implication, its State analogs, Articles 16 and 25”

because Plaintiff alleges that he is a prisoner, not a

82a

pretrial detainee. (Crowder Mot. 33-34, ECF No. 154-1.)

Accordingly, Defendants argue, his claim under the due

process provisions of Article 24 must be dismissed.

This Court rejects the argument. Although the

Amended Complaint repeatedly describes Youngers as

“prisoner,” there is no dispute that Younger was a pretrial

detainee at the time of the events in question. All parties

to the State Court proceedings acknowledged this. (See

State’s Motion in Limine, State Case, Paper No. 60/0,

ECF No. 166-1); (Joint Statement of Facts, State Case,

Paper No. 72/0, ECF No. 166-3)).11

CONCLUSION

For the foregoing reasons, the Motion to Dismiss all

Claims in the Amended Complaint Against Defendant

Tyrone Crowder (ECF No. 154), the Motion to Dismiss all

Claims in Amended Complaint Against Defendant

Wallace Singletary (ECF No. 155); and Defendant

Dupree’s Motion to Dismiss (ECF No. 156) are all

DENIED.

A separate Order follows.

Dated: November 19, 2019

_______/s/_______________

Richard D. Bennett

United States District Judge

This Court will reexamine this position should the evidence reveal

that Plaintiff was not, in fact, a pretrial detainee.

11

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

KEVIN YOUNGER,

*

Plaintiff,

*

v.

*

STATE OF

MARYLAND, et al.,

*

*

Defendants.

*

*

*

Civil Action No.

RDB-16-3269

*

*

*

*

*

*

*

MEMORANDUM OPINION

Plaintiff Kevin Younger (“Plaintiff” or “Younger”), “a

prisoner in the Maryland Division of Correction housed at

the Maryland Reception, Diagnostic & Classification

Center (“MRDCC”),” has brought this action against the

State of Maryland, current Secretary of the Maryland

Department of Public Safety and Correctional Services

(“DPSCS”) Stephen T. Moyer (“Secretary Moyer”), in his

official capacity1, and former MRDCC Warden Tyrone

Secretary Moyer did not yet hold the office of Secretary of the

Maryland Department of Public Safety and Correctional Services at

the time of the facts alleged in the Complaint. Rather, former

Secretary Gary D. Maynard was the DPSCS Secretary at that time.

Younger has sued Moyer “in his official capacity . . . in the shoes of

his predecessors,” although he has subsequently clarified in his

Response to the pending motions that he also seeks to sue Moyer in

his individual capacity. See Pl. Response, p. 8, ECF No. 67. This

Court has addressed both suits herein. Younger has not sued any of

the other Defendants, aside from the State of Maryland, in their

“official capacities” and has confirmed in his Response brief that he

intends to sue them in their individual capacities. Id.

1

(83a)

84a

Crowder (“Crowder”)2

(collectively the “State

Defendants”); MRDCC “supervisory correctional

officers[s]” Pamela Dixon (“Dixon”), Wallace Singletary

(“Singletary”), and Neil Dupree (“Dupree”); and MRDCC

“correctional officer[s]” Jemiah

Green (“Green”), Richard Hanna (“Hanna”), and

Kwasi Ramsey (“Ramsey”). Compl., ¶¶ 1-10, ECF No. 1.

Younger alleges violations of his rights under the Eighth

and Fourteenth Amendments to the United States

Constitution, pursuant to 42 U.S.C. § 1983 (Count One)3;

Excessive Force, in violation of Article 24 of the Maryland

Declaration of Rights (Count Two); Cruel and Unusual

Punishment, in violation of Articles 16 and 25 of the

Maryland Declaration of Rights (Count Three);4 Battery

(Count Five); Intentional Infliction of Emotional Distress

(Count Six); Conspiracy (Count Seven); Negligent Hiring,

Training, and Supervision (Count Eight); Gross

Negligence (Count Nine); and Respondeat Superior

(Count Ten)5, in connection with his alleged “assault[ ] and

It is undisputed that Crowder was the Warden of the Maryland

Reception, Diagnostic & Classification Center at the time of the

events alleged in Younger’s Complaint (ECF No. 1).

3

Specifically, Younger alleges violations of his “right to be free from

the use of excessive and unreasonable force and seizure,” “the right

to be free from a deprivation of life and liberty without due process of

law,” “the right to be free from cruel and unusual punishment,” and

“the right to be free from deliberate indifference for a serious medical

need.” See Compl., ¶ 102, ECF No. 1.

2

Articles 16, 24, and 25 of the Maryland Declaration of Rights are

interpreted in pari materia with their federal counterparts, the

Eighth and Fourteenth Amendments to the United States

Constitution. See, e.g., Evans v. State, 914 A.2d 25, 67 (Md. 2006);

Pitsenberger v. Pitsenberger, 410 A.2d 1052, 1056 (Md. 1980).

4

Younger initially brought an assault claim against Defendants

Crowder, Ramsey, Green, Hanna, Dixon, Singletary, and Dupree

5

85a

beating” by correctional officers Green, Hanna, and

Ramsey on September 30, 2013. Id. ¶¶ 37, 100-193.6

Currently pending before this Court are the State

Defendants’ Motion to Dismiss or, in the alternative, for

Summary Judgment (ECF No. 46) and Defendants

Dupree and Singletary’s Motion to Dismiss or, in the

alternative, for Summary Judgment (ECF No. 60).7 This

Court has reviewed the parties’ submissions, and no

hearing is necessary. See Local Rule 105.6 (D. Md. 2016).

For the reasons stated herein, the State Defendants’

Motion to Dismiss (ECF No. 46) is GRANTED as to

Younger’s claims against the State of Maryland in Counts

Two, Three, Eight, and Ten of the Complaint and

Younger’s claims against Secretary Moyer, in both his

individual and official capacities, in Counts One and

Eight of the Complaint, pursuant to Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure.8 The

(Count Four), but has since voluntarily dismissed that claim with

prejudice. See Margin Order, ECF No. 53.

Nicholas Cottman, one of four other prisoners allegedly assaulted

by Ramsey, Green, and Hanna on that day, has filed a similar Section

1983 civil rights action in this Court against the State of Maryland,

Secretary Moyer, Crowder, Dupree, Green, Hanna, and Ramsey. See

Cottman v. State of Maryland, et al., RDB-16-3306.

6

Defendants Green, Hanna, Ramsey, and Dixon have not moved to

dismiss Younger’s claims against them. Defendants Hanna and

Ramsey have both filed Answers to the Complaint (ECF Nos. 56 &

65). The Clerk of this Court has entered Orders of Default (ECF Nos.

70 & 71) against both Defendants Green and Dixon for failure to plead

or otherwise defend.

8

Although Defendants have moved, in the alternative, for summary

judgment, this Court will not convert their motions to motions for

summary judgment. Younger has not yet had the benefit of discovery

in this case and has requested “an opportunity to either confirm, or

obtain facts to rebut, Defendants’ assertions.” Pl. Response, p. 23,

ECF No. 67. “Generally speaking, ‘summary judgment [must] be

7

86a

State Defendants’ Motion to Dismiss (ECF No. 46) is

DENIED as to Younger’s claims against Crowder in

Counts One, Two, Three, Five, Six, Seven, Eight, and

Nine of the Complaint, and Dupree and Singletary’s

Motion to Dismiss (ECF No. 60) is also DENIED as to

Younger’s claims against them in Counts One, Two,

Three, Five, Six, Seven, Eight, and Nine of the Complaint.

Additionally, the State Defendants’ Motion to Dismiss

(ECF No. 46) and Defendants Dupree and Singletary’s

Motion to Dismiss (ECF No. 60) are both DENIED as to

Younger’s Conspiracy claim (Count Seven). Therefore,

Defendants State of Maryland and Secretary Moyer, in

both his individual and official capacities, are

DISMISSED from this action. All other claims against

the additional Defendants remain.

BACKGROUND

At the motion to dismiss stage, this Court accepts as

true the facts alleged in the Plaintiff’s Complaint. See Aziz

v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Plaintiff

Kevin Younger (“Plaintiff” or “Younger”) is “a prisoner in

the Maryland Division of Correction housed at the

Maryland Reception, Diagnostic & Classification Center

(“MRDCC”).” Compl., ¶ 1, ECF No. 1. “On the evening of

September 29, 2013, [Younger] . . . witnessed a fight

between two inmates and a correctional officer in which

the correctional officer was seriously injured.” Id. ¶ 18.

Although Younger was not involved in the fight and had

“no history of disciplinary infractions at that time,” he was

removed from general housing and transferred to

refused where the nonmoving party has not had the opportunity to

discover information that is essential to his opposition.’ ” Harrods

Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir.

2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.

5 (1986)).

87a

“various other cells in MRDCC” with “the two inmates

who participated in the confrontation” and “at least two

other prisoners.” Id. ¶¶ 18-21.

On the morning of September 30, 2013, Younger

alleges that Wallace Singletary (“Singletary”), a

“supervisory correctional officer” at MRDCC, ordered

Neil Dupree (“Dupree”), also a “supervisory correctional

officer,” to “print out photographs of the injured

correctional officer so that they could be shown to the

incoming correctional officers before they began their

daily shifts.” Id. ¶ 24. He claims that former MRDCC

Warden Tyrone Crowder (“Crowder”) and Dupree

displayed the photographs to correctional officers at that

morning’s “roll call,” “effectively sanction[ing] a

retaliatory attack against the five prisoners, including

[Younger], who they believed were involved in the

previous day’s altercation,” and that Crowder specifically

“admonished the correctional officers for their handling

of the altercation on the prior day, calling them ‘soft’ and

stating that they ‘should [have] beat the inmates’ who

were allegedly involved in the fight.” Id. ¶¶ 25-32.

Younger claims that correctional officers Jemiah

Green (“Green”), Richard Hanna (“Hanna”), and Kwasi

Ramsey (“Ramsey”) were present at that roll call, that

they were well-known for their “violent enforcement” of

prison policies, and that Crowder, Singletary, Dupree,

and the Secretary of the Maryland Department of Public

Safety and Correctional Services were all well aware of

“previous use of force complaints” against them. Id. ¶¶ 3435; 87-91. Following the roll call, he alleges that Green,

Hanna, and Ramsey “sought to exact revenge on the five

prisoners, including [Younger]” and “systematically

moved about MRDCC . . . brutally assaulting and beating”

each one of them, including Younger. Id. ¶¶ 36-37.

Younger alleges that around 7:00 a.m. on September 30,

88a

2013, Green, Hanna, and Ramsey “entered [his] cell,

grabbing [him] by his shirt and legs, and throwing him

from the top bunk onto the concrete floor,” then

proceeded to “strik[e] him on his head, face, and body,

with handcuffs, radios, and keys . . . kick[ing] and

stomp[ing] [him] as he lay defenseless on the ground.” Id.

¶¶ 42-44. Younger claims that “supervisory correctional

officer” Pamela Dixon (“Dixon”) “was seated at the

sergeant’s desk at the end of the tier . . . in plain view from

[his] cell” during the beating. Id. ¶ 50. Younger alleges

that the officers “left [him] in a pool of blood on the

concrete floor of his cell” and proceeded to beat each of

the other prisoners whose photographs were displayed in

the same way. Id. ¶¶ 48-49, 56.

Younger contends that Green eventually returned to

transport him to the medical unit and ordered him to write

on an Incident Report Form “that he sustained his

injuries by falling from his bunk bed.” Id. ¶¶ 53-54. He

claims that Dupree, “[a]s the only supervisory

lieutenant,” responded to the “medical alerts” for all five

prisoners following the beatings and “observed

correctional officers bringing [Younger] down the stairs

toward the medical unit.” Id. ¶ 61-62. Younger alleges that

“Dupree asked [ ] Ramsey what had happened” and

accepted his explanation that Younger “fell . . . despite

[his] injuries being markedly inconsistent with the

asserted explanation,” and that Dupree further “failed to

seek emergency medical attention, . . . launch an

investigation into the five prisoners’ injuries, . . . [or]

interview [Younger].” Id. ¶¶ 63-67. Younger contends that

“[t]he assault and beating of the five prisoners . . . as a

form of discipline, was consistent with the culture of

MRDCC under [ ] Crowder’s leadership.” Id. ¶ 69.

An Internal Investigation Division (“IID”) report

ultimately concluded that “on the morning of September

89a

30, 2013 . . . Ramsey, Green, and Hanna . . . [did assault]

the prisoners, including [Younger], who they believed

were involved in the fight on the previous evening with the

correctional officer.” Id. ¶ 80. “Crowder is no longer the

Warden of MRDCC following the assault on the five

prisoners,” and Ramsey, Green, and Hanna have been

criminally indicted. Id. ¶¶ 82-83. “On May 6, 2015, [ ]

Hanna plead guilty to conspiracy to commit first degree

assault on the five prisoners, including [Younger],” and a

jury found Green and Ramsey “guilty of second degree

assault and misconduct in office for the assaults.” Id. ¶¶

85-86. Younger has now brought this civil action against

the State of Maryland, Secretary Moyer, and Crowder

(collectively the “State Defendants”); “supervisory

correctional officers[s]” Dixon, Singletary, and Dupree;

and “correctional officer[s]” Green, Hanna, and Ramsey,

alleging violations of his rights under the United States

Constitution and the Maryland Declaration of Rights as

well as various Maryland tort law claims.

STANDARD OF REVIEW

I. Motion to Dismiss Under Rule 12(b)(1) of the Federal

Rules of Civil Procedure

A motion to dismiss under Rule 12(b)(1) of the

Federal Rules of Civil Procedure for lack of subject

matter jurisdiction challenges a court’s authority to hear

the matter brought by a complaint. See Davis v.

Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005). This

challenge under Rule 12(b)(1) may proceed either as a

facial challenge, asserting that the allegations in the

complaint are insufficient to establish subject matter

jurisdiction, or a factual challenge, asserting “that the

jurisdictional allegations of the complaint [are] not true.”

Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)

(citation omitted). With respect to a facial challenge, a

90a

court will grant a motion to dismiss for lack of subject

matter jurisdiction “where a claim fails to allege facts

upon which the court may base jurisdiction.” Davis, 367

F. Supp. 2d at 799. Where the challenge is factual, “the

district court is entitled to decide disputed issues of fact

with respect to subject matter jurisdiction.” Kerns, 585

F.3d at 192. As this Court has explained in Dennard v.

Towson Univ., 62 F. Supp. 3d 446, 449 (D. Md. 2014), “[a]n

assertion of governmental immunity is properly

addressed under Rule 12(b)(1).” (citing Smith v.

WMATA, 290 F.3d 201, 205 (4th Cir. 2002)). A plaintiff

carries the burden of establishing subject matter

jurisdiction. Lovern v. Edwards, 190 F.3d 648, 654 (4th

Cir. 1999).

II. Motion to Dismiss Under Rule 12(b)(6) of the Federal

Rules of Civil Procedure

Under Rule 8(a)(2) of the Federal Rules of Civil

Procedure, 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). Rule 12(b)(6) of the

Federal Rules of Civil Procedure authorizes the dismissal

of a complaint if it fails to state a claim upon which relief

can be granted. The purpose of Rule 12(b)(6) is “to test

the sufficiency of a complaint and not to resolve contests

surrounding the facts, the merits of a claim, or the

applicability of defenses.” Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The

United States Supreme Court’s recent opinions in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that

complaints in civil actions be alleged with greater

specificity than previously was required.” Walters v.

McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation

omitted). In Twombly, the Supreme Court articulated

“[t]wo working principles” that courts must employ when

91a

ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S.

at 678. First, while a court must accept as true all the

factual allegations contained in the complaint, legal

conclusions drawn from those facts are not afforded such

deference. Id. (stating that “[t]hreadbare recitals of the

elements of a cause of action, supported by mere

conclusory statements, do not suffice” to plead a claim);

see also Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365

(4th Cir. 2012) (“Although we are constrained to take the

facts in the light most favorable to the plaintiff, we need

not accept legal conclusions couched as facts or

unwarranted inferences, unreasonable conclusions, or

arguments.” (internal quotation marks omitted)). Second,

a complaint must be dismissed if it does not allege “a

plausible claim for relief.” Iqbal, 556 U.S. at 679.

ANALYSIS

I. The State Defendants’ Motion to Dismiss (ECF No. 46)

A. The State of Maryland

Although Plaintiff Younger has brought claims

against the State of Maryland for Excessive Force, in

violation of Article 24 of the Maryland Declaration of

Rights (Count Two); Cruel and Unusual Punishment, in

violation of Articles 16 and 25 of the Maryland Declaration

of Rights (Count Three); Negligent Hiring, Training, and

Supervision (Count Eight); and Respondeat Superior

(Count Ten), Younger now concedes that the State of

Maryland is immune from suit as to all four counts. Pl.

Response, p. 6, ECF No. 67.

As Judge Paul Grimm of this Court has confirmed

this month in McIntosh v. Div. of Corr., No. PWG-161320, 2017 WL 3412081, at *4 (D. Md. Aug. 7, 2017), “[t]he

Eleventh Amendment [to the United States Constitution]

bars suits for damages against a state in federal court

92a

unless the state has waived sovereign immunity or

Congress has abrogated its immunity.” (citing Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02

(1984)). “Although the State of Maryland has waived its

sovereign immunity for certain types of cases brought in

state court, see Md. Code Ann., State Gov’t § 12-104, it has

not waived its immunity under the Eleventh Amendment

to suit in federal court.” Id. “If sovereign immunity has

not been waived, federal courts lack subject-matter

jurisdiction over the claim[s].” Robinson v. Pennsylvania

Higher Educ. Assistance Agency, No. GJH-15-0079, 2017

WL 1277429, at *2 (D. Md. Apr. 3, 2017). Accordingly, the

State Defendants’ Motion to Dismiss (ECF No. 46) is

GRANTED as to Younger’s claims against the State of

Maryland in Counts Two, Three, Eight, and Ten of the

Complaint. All claims against the State of Maryland shall

be DISMISSED for lack of subject-matter jurisdiction,

pursuant to Rule 12(b)(1) of the Federal Rules of Civil

Procedure.

B. Secretary Stephen T. Moyer

Younger has brought two claims against the current

Secretary of the Maryland Department of Public Safety

and Correctional Services (“DPSCS”) Stephen T. Moyer

(“Secretary Moyer”) for violations of his rights under the

Eighth and Fourteenth Amendments to the United States

Constitution, pursuant to 42 U.S.C. § 1983 (Count One)

and Negligent Hiring, Training, and Supervision (Count

Eight). Compl., ¶¶ 100-183, ECF No. 1. Although the

Complaint states, inter alia, that “[Secretary] Moyer is

sued in his official capacity as the Secretary of DPSCS,

and stands in the shoes of his predecessors for the

purposes of this action,” id. ¶ 10, Younger has since

clarified in his Response (ECF No. 67) to the pending

motions that he also intends to sue Secretary Moyer in his

93a

individual capacity. Secretary Moyer has now moved to

dismiss all claims against him.

To the extent Younger has sued Secretary Moyer in

his official capacity, his claims shall likewise be dismissed

under the doctrine of sovereign immunity. “Although

state officials are literally persons, ‘a suit against a state

official in his or her official capacity is not a suit against

the official but rather is a suit against the official’s office.

As such, it is no different from a suit against the State

itself.’ ” McIntosh, 2017 WL 3412081, at *4 (quoting Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)

(internal citations omitted)). Younger does not contest the

dismissal of his claims against Secretary Moyer in his

official capacity.

To the extent Younger has also sued Secretary Moyer

in his individual capacity, those claims shall also be

dismissed for failure to state a claim for relief, pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Under Section 1983, individual liability must be based on

personal conduct. See Wright v. Collins, 766 F.2d 841, 850

(4th Cir. 1985). While Younger has alleged that “[t]he

prior bad acts by Defendants Ramsey, Green, Hanna, and

Dixon were . . . known to [Secretary Moyer], DPSCS, and

the State of Maryland by way of official Use of Force

incident reports, but no corrective action was taken,”

Compl., ¶ 91, ECF No. 1, it is undisputed that Secretary

Moyer did not yet hold the office of Secretary of the

Maryland Department of Public Safety and Correctional

Services at the time of the facts alleged in the Complaint.

Rather, former Secretary Gary D. Maynard was the

DPSCS Secretary at that time.9 See Mem. Supp. State

This Court takes judicial notice of the fact that Gary D. Maynard

served as the Secretary of the Maryland Department of Public Safety

9

94a

Def. Mot., p. 5, n. 1, ECF No. 46-1. As this Court observed

in Calhoun-El v. Bishop, No. RDB-13-3868, 2016 WL

5453033, at *4 (D. Md. Sept. 29, 2016), “any duty to train

and supervise the correctional officer defendants would

have arisen within their official capacities only (i.e., in

their position as secretaries of the Department of Public

Safety and Correctional Services).”

Additionally, this Court has held that “[w]hile

inadequacy of police training can serve as a basis for

liability under § 1983, this is so only where the failure to

train is so flagrant that it amounts to ‘deliberate

indifference’ on the part of [defendant] with respect to

“the righ

This text is long and has been trimmed here. Open the source document for the complete record.