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Morris J. Pettigrew Sr., #359809 v. Kathleen S. Green

April 17, 2013

MORRIS J. PETTIGREW SR., #359809
PLAINTIFF
v.
KATHLEEN S. GREEN, WARDEN CORRECTIONAL OFFICER WHEATLEY DEFENDANTS



The opinion of the court was delivered by: George L. Russell, III United States District Judge

MEMORANDUM

I. Background

On June 7, 2012, Plaintiff Morris J. Pettigrew, Sr., an inmate currently housed at the Western Correctional Institution in Cumberland, Maryland, filed this 42 U.S.C. § 1983 Complaint for declaratory and injunctive relief and compensatory and punitive damages. Plaintiff states that while housed at the Eastern Correctional Institution ("ECI") on January 11, 2012, he was called to the recreation hall to eat dinner. He contends that after dinner was completed and he was exiting the dining hall, Correctional Officer Wheatley requested that he stop and submit to a pat-down frisk search. Plaintiff claims that he complied without hesitation, gave Wheatley his coat and turned around with his back to the officer. He asserts that the officer held his left shoulder with his left hand and grabbed Plaintiff's right buttock with his right hand. When he asked Wheatley what he was doing and to let go of him, Plaintiff asserts that Wheatley took a firmer grip of his shoulder and placed his right forearm in the upper center portion of Plaintiff's back, before reaching into the center of Plaintiff's buttocks. ECF No. 1. Plaintiff alleges that despite his pleas for Wheatley to stop, the Officer ran his hands along Plaintiff's arms and shoulders, shoved his left hand into Plaintiff's pants, and grabbed his pubic hair, ripping a patch of it off. Wheatley then allegedly cupped his open palm and fingertips and took hold of Plaintiff's penis, tugging it repeatedly. ECF No. 1.

Plaintiff claims he spoke to other inmates and then notified two lieutenants and his housing unit officer about the incident. He asserts that no action was taken. Plaintiff states that he filed a grievance before he was taken to the medical department for photographs of his genital area. He complains that Wheatley violated Division of Corrections regulations and the code of conduct for correctional officers and his sexual assault was offensive and violative of the Eighth Amendment. Id.

Defendants have filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment*fn1 and Plaintiff has filed an Opposition thereto.*fn2 ECF Nos. 13, 16, & 17. The matter is ready for consideration and may be determined without oral hearing. See Local Rule 105.6 (D. Md. 2011).

II. Standard of Review

Because matters outside the pleadings will be considered, Defendants' Motion shall be treated as a motion for summary judgment. Summary judgment is governed by Fed. R. Civ. P. 56(a), which provides that: "The 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." The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

The "party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court should "view the evidence in the light most favorable to . . . the non-movant, and draw all reasonable inferences in [his] favor without weighing the evidence or assessing the witness' credibility." Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644--45 (4th Cir. 2002). The court must, however, also abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778--79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986)).

In Anderson, 477 U.S. at 249, the Supreme Court explained that in considering a motion for summary judgment, the "judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.

The moving party bears the burden of showing that there is no genuine issue as to any material fact. No genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of his or her case as to which he or she would have the burden of proof. SeeCelotex Corp., 477 U.S. at 322--23. Therefore, on those issues on which the nonmoving party has the burden of proof, it is his or her responsibility to confront the summary judgment motion with an affidavit or other similar evidence showing that there is a genuine issue for trial.

III. Discussion

Claim of Sexual ...


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