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Pevia v. Shearin

United States District Court, D. Maryland

February 10, 2015

DONALD R. PEVIA, Plaintiff,
v.
BOBBY P. SHEARIN, et al., Defendants.

MEMORANDUM

ELLEN LIPTON HOLLANDER, District Judge.

Plaintiff Donald R. Pevia, a self-represented inmate incarcerated at North Branch Correctional Institution ("NBCI"), asserts that he was subjected to excessive force and physical abuse by correctional officers and others, in violation of his rights under the Eighth Amendment. He has sued defendants Michael Stouffer, Commissioner; Bobby P. Shearin, Warden; Lt. Paul Pennington; CO II Benjamin Friend; CO II Justin Yutzy; CO Soltas; and CO Dorcon, [1] seeking redress under 42 U.S.C. § 1983. ECF 1. Defendants have moved for dismissal or summary judgment (the "Motion"). ECF 14. The Motion is supported by a Memorandum (ECF 14-1) as well as many exhibits. Plaintiff opposes the motion, having filed his own motion for summary judgment, ECF 18, with exhibits.[2]

No hearing is necessary to resolve defendant's Motion or plaintiff's summary judgment motion. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, defendants' Motion, construed as a motion for summary judgment, shall be DENIED, in part and GRANTED in part. Plaintiff's motion shall be DENIED.

Factual Summary

The parties agree that on April 16, 2012, Pevia was handcuffed and secured in an "education booth." ECF 1; ECF 14-2, Ex. 1 at 3. Plaintiff describes the booth as being like a telephone booth made of bars. ECF 1 at 4.

According to Pevia, Officer Pennington approached Pevia and began beating him and screaming at him. ECF 1 at 4. Pevia banged on the desk with his cuffs and demanded that the officers "leave him alone." ECF 1 at 4-5. Plaintiff claims that, "without hesitation or warning, " Pennington sprayed Pevia's face with mace. Id. Pevia maintains that he tried to avoid having the mace hit him in the face but Pennington continued his assault, circling the booth, chasing plaintiff, and repeatedly spraying Pevia. Id. Pevia states that when he heard the spray stop he lifted his face and "Pennington was standing and patiently waiting for plaintiff to remove his head to continue the assault. Paul Pennington was standing in a shooters position with the can of mace positioned as an [sic] gun." Id. at 5. Pevia states that the use of mace did not stop until another officer, CO II Gomer, grabbed Pennington by the arm and told Pennington "Thats [sic] enough....'" Id.

Pevia claims that the correctional officers left to escape "the toxic fumes of the pepper spray." Id. at 5. Yet, plaintiff was left locked in the room while still handcuffed. Then, the correctional officers returned wearing gas masks. Id. Pevia asserts that the officers forcibly cuffed him behind his back, in violation of medical orders, causing him severe shoulder pain.[3] In particular, Pevia states that defendants Friend and Yutzy refused to comply with plaintiff's order for front cuffing and, after handcuffing plaintiff behind his back, twisted and stretched his arms upward, causing him severe shoulder pain.

According to plaintiff, CO Soltas did not want to provide medical treatment to plaintiff, stating, "let'em suffer.'" Id. at 5. CO Friend and CO Yutzy took plaintiff to the medical department but, upon entering, they "rammed" plaintiff's head into a medical bench. Id. at 6. Plaintiff alleges that the officers covered up a window to block visibility, and then CO Soltas punched Pevia in the face and ribs multiple times. Id. In addition, plaintiff alleges that the officers threatened him with more abuse if he complained about his injuries. Id. He also states that he was told that, as "a white guy, " he needed to stick with custody staff. Id. at 6.

Plaintiff was allowed to shower to wash off the pepper spray. Thereafter, he was approached by an unknown officer who told him he was to sign off on the events and report that "no illegal activities occurred...." Id. Pevia was threatened with more abuse if he refused to sign. Id. at 7.

Thereafter, two staff members asked Pevia whether the officers had acted appropriately. Because he was scared, plaintiff told them "everything was fine.'" Id. at 7. Plaintiff was returned to his cell. Id. Plaintiff alleges that on April 18, 2012, Soltas came to his cell and called him a snitch for filing a complaint against the defendants for excessive force and physical abuse. Id. at 7. He also threatened him if he did not "drop this issue....'" Id. at 8.

Defendants assert that the incident originated from cell searches on the B-Wing of Housing Unit #1. ECF 14-2, Exh. 1 (Declaration of John White, NBCI Correctional Case Management Specialist I) at 2. Defendants maintain that became agitated and spit in the face of CO II Joshua Kennell. ECF 14-2 at 2-8. They have submitted the use of force reports generated as a result of the altercation with Pevia. ECF 14-2, Ex. 1.

According to the Use of Force Report from CO II Donald Drybola, plaintiff started getting agitated and became uncooperative. CO II Brandon Caple and Drybola removed plaintiff from the area and secured him in the Housing Unit #1 B-Wing Education Booth. Id. at 3.

Defendant Pennington reported that Sergeant Brian Marsh advised him that plaintiff assaulted CO II Kennell by spitting in his face. Id. at 6; see also ECF 14-3, Exh. 2 (Letter of Mark J. Carter, Director Internal Investigation Unit, dated April 22, 2014). Pennington responded to Housing Unit #1 B-Wing, and was advised by CO II Kennell that plaintiff had spit in his face.

In his report, Pennington stated that he spoke with Pevia after he was told that Pevia spat on Kennell. Pevia was agitated and screaming. Although Pennington ordered Pevia to calm down, Pevia screamed and threatened him. Id. at 6. Pennington started to leave the area when Pevia began banging his cuffs on the desk in the educational booth and became more agitated and disruptive. Id. Pennington directed Pevia to calm down and again began to leave the area when he heard what he believed was Pevia preparing to spit on him. Pennington then turned and sprayed Pevia with pepper spray. Id. at 7. Pennington indicated that the first burst of spray hit Pevia in the left shoulder, back, and head. Id. Pevia continued to move around the booth as Pennington continued to give orders for Pevia to stop and attempted to gain control. Id.

After the use of the pepper spray, Pevia remained in the education both for several minutes while the officers left the area. ECF 1 at 5; ECF 14-2, Ex. 1 at 6. Officers returned with gas masks, re-cuffed Pevia from the front to the back, and escorted him to the medical department. A medical report is at ECF 14-2 at 14. Post-incident photographs of plaintiff appear at ECF 14-2 at 15-18.

Defendants indicate that Pevia was interviewed by Detective Sage, and admitted that he had lost control of his emotions on the date of the incident. ECF 14-2 at 13. Pevia advised Sage that he had apologized to staff and reported to Sage that staff acted professionally. ECF 14-2 at 13.

Plaintiff filed an administrative remedy request ("ARP"), NBCI-115-12, on April 24, 2012, which was dismissed for procedural reasons. Defendants note that Pevia did not file an appeal to the Commissioner or a grievance with the Inmate Grievance Office ("IGO"). ECF 14-1 at 5.

Standard of Review

Plaintiff has moved for summary judgment. ECF 18. Defendant's motion is styled as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. ECF 14. A motion styled in the alternative implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F.Supp.2d 431, 436-37 (D. Md. 2011). Ordinarily, a court "is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss." Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, "the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). When the movant expressly captions its motion "in the alternative" as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court "does not have an obligation to notify parties of the obvious." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).[4]

A district judge has "complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." 5C WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed. 2004, 2011 Supp.). This discretion "should be exercised with great caution and attention to the parties' procedural rights." Id. at 149. In general, courts are guided by whether consideration of extraneous material "is likely to facilitate the disposition of the action, " and "whether discovery prior to the utilization of the summary judgment procedure" is necessary. Id. at 165-67.

Ordinarily, summary judgment is inappropriate "where the parties have not had an opportunity for reasonable discovery." E.I. du Pont de Nemours and Co. v. Kolon Industries, Inc., 637 F.3d 435, 448-49 (4th Cir. 2011). However, "the party opposing summary judgment cannot complain that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed for discovery.'" Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)). To raise adequately the issue that discovery is needed, the non-movant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, "for specified reasons, it cannot present facts essential to justify its opposition, " without needed discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit requirement of former Rule 56(f)). And, to justify a denial of summary judgment on the grounds that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be essential to [the] opposition.'" Scott v. Nuvell Fin. Servs., LLC, 789 F.Supp.2d 637, 641 (D. Md. 2011) (alteration in original) (citation omitted). A non-moving party's Rule 56(d) request for additional discovery is properly denied "where the ...


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