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Duncan v. McKenzie

United States District Court, D. Maryland

April 20, 2016

BRUCE DUNCAN, Plaintiff,
OFFICER C. MCKENZIE, et al., Defendants.


THIS MATTER is before the Court on Defendants’, Correctional Officer Christopher McKenzie, Lieutenant Bradley Wilt, and Warden Bobby Shearin (collectively, the “Corrections Defendants”), Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 20), and Defendant’s, Wexford Health Sources, Inc. (“Wexford”), Motion to Dismiss and/or, in the Alternative, Motion for Summary Judgment (ECF No. 22) and Motion to Quash (ECF No. 32). Also pending before the Court is pro se Plaintiff Bruce Duncan’s Motion for Leave to Amend his Complaint (ECF No. 29). The Motions are ripe for disposition.

The Court, having reviewed the Motions and the parties’ briefs, finds no hearing necessary pursuant to Local Rule 105.6 (D.Md. 2014). For the reasons that follow, the Court will grant the Corrections Defendants’ and Wexford’s Motions for Summary Judgment, deny Duncan’s Motion for Leave to Amend his Complaint, and deny as moot Wexford’s Motion to Quash.


At all times relevant to his Complaint, Duncan was an inmate at the North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland. Officer McKenzie, Lieutenant Wilt, and Warden Shearin were part of NBCI’s corrections staff. Wexford provided health care services to NBCI inmates.

In September 2013, NBCI was on “lock-down, ” meaning that the privileges and movements of inmates within the institution were restricted due to security concerns. During this time, inmates were not permitted to eat in the cafeteria; instead, NBCI personnel delivered meals to inmates in their cells. NBCI personnel would pass food trays through a security slot (also known as a “feed up slot”), which is a rectangular opening in the doors to the prison cells. NBCI personnel can open, close, and lock the security slot from outside the cell, but inmates can prevent the slot from being closed by sticking an arm or other appendage through the opening.

On September 13, 2013, Officer McKenzie was responsible for collecting food trays from the inmates in Housing Unit 3, where Duncan was housed. While Officer McKenzie was collecting the trays, Duncan was inside his cell speaking with his tier officer about retrieving his sheets and clothing from the laundry facility. Duncan concedes that while speaking to his tier officer, his hand was protruding outside the security slot. (Compl. at 4, ECF No. 1). Duncan alleges that because he was “not getting anywhere with the tier officer, ” he asked to speak with a sergeant. (Id.). The parties offer competing accounts of what ensued (the “Incident”).

According to Duncan, Officer McKenzie approached Duncan’s cell and without saying anything, sprayed his entire can of mace in Duncan’s face, eyes, and mouth while yelling racial epithets at Duncan. According to Officer McKenzie, when he attempted to close the security slot to Duncan’s cell after collecting Duncan’s food tray, Duncan stuck his arm in the slot to thwart Officer McKenzie’s efforts. Officer McKenzie asked Duncan to remove his arm, but Duncan refused. Officer McKenzie then advised Plaintiff that refusing to remove his arm would result in force being used, including using pepper spray[1] to gain compliance. Duncan again refused. Officer McKenzie then gave Duncan a direct order to remove his arm from the security slot, but Duncan remained defiant and used profane language. Officer McKenzie proceeded to disperse a “short burst” of pepper spray in Duncan’s facial area. (Officer McKenzie Decl. ¶ 7, ECF No. 20-2). Duncan’s cellmate received secondary exposure to the pepper spray.

Shortly after the Incident, other members of the NBCI corrections staff transported Duncan and his cellmate to the medical room in Housing Unit 3 where they could be treated. Nurse Michelle Schultz, a Wexford employee, examined Duncan and explained that although she would not personally wash the pepper spray off of Duncan, he would receive a decontamination shower. Duncan then received his decontamination shower, but he alleges that the water was “boiling and sc[a]lding hot” and his request to adjust the water temperature was denied. (Compl. at 6). Duncan further complains that although his cellmate received shower shoes, soap, a washcloth, and a clean set of clothes to wear after his decontamination shower, Duncan was denied all of these items.

Later that day, Duncan talked to Lieutenant Wilt about the conditions of Duncan’s decontamination shower. Duncan alleges that Lieutenant Wilt told him to “deal with it” because it was Duncan’s fault that he was exposed to pepper spray. (Id. at 7). Duncan then requested that Lieutenant Wilt provide him a cold shower, but Lieutenant Wilt refused.

In March 2014-approximately six months after the Incident- Duncan began complaining about eye irritation purportedly related to the Incident. Duncan asserts that instead of applying a saline solution to his eyes, Wexford employees provided him contact lens solution and artificial tears. Duncan alleges that those substances only exacerbated his eye irritation and disrupted his vision.

Duncan initiated this action on March 16, 2015, raising 42 U.S.C. § 1983 (2012) claims for excessive use of force and failure to provide medical care associated with the Incident. (ECF No. 1). The Corrections Defendants and Wexford filed Motions to Dismiss or, in the Alternative, Motions for Summary Judgment on September 1 and September 4, 2015, respectively. (ECF Nos. 20, 22). Duncan filed Oppositions on September 23, 2015 (ECF Nos. 26, 27), and Wexford submitted a Reply on October 13, 2015 (ECF No. 28). On October 30, 2015, Duncan filed a Motion for Leave to Amend his Complaint (ECF No. 29), requesting leave to add Nurse Schultz as a defendant; it is unopposed. On the same date, Duncan filed two requests for documents from NBCI and Wexford. (ECF Nos. 30, 31). Duncan filed his requests under the Freedom of Information Act, 5 U.S.C. §§ 552 et seq. (2012) and the Maryland Public Information Act, Md.Code Ann., State Gov’t §§ 10-612 et seq. (West 2015). On November 11, 2015, Wexford filed a Motion to Quash these requests (ECF No. 32); it is unopposed.


A. Motions to Dismiss or, in the Alternative, Motions for Summary Judgment

1. Standard of Review

Defendants style their Motions as motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment under Rule 56. A motion styled in this manner implicates the Court’s discretion under Rule 12(d). See Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D.Md. 2011), aff’d sub nom., Kensington Volunteer Fire Dep’t, Inc. v. Montgomery Cty., Md., 684 F.3d 462 (4th Cir. 2012). Pursuant to Rule 12(d), when “matters outside the pleadings are presented to and not excluded by the court, the [Rule 12(b)(6)] motion must be treated as one for summary judgment under Rule 56.”

The Court “has ‘complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.’” Wells-Bey v. Kopp, No. ELH-12-2319, 2013 WL 1700927, at *5 (D.Md. Apr. 16, 2013) (quoting 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004, 2012 Supp.)). “This discretion ‘should be exercised with great caution and attention to the parties’ procedural rights.’” Id. (quoting Federal Practice & Procedure § 1366, at 149). When exercising this discretion, the Court should assess whether considering materials beyond the pleadings “‘is likely to facilitate the disposition of the action, ’ and ‘whether discovery prior to the utilization of the summary judgment procedure’ is necessary.” Id. (quoting Federal Practice & Procedure § 1366, at 165-67). Other than these factors, the Court is guided by the United States Court of Appeals for the Fourth Circuit’s two-part test for proper conversion of a Rule 12(b)(6) motion to a Rule 56 motion. Under this test, the “parties [must] be given some indication by the court that it is treating the 12(b)(6) motion as a motion for summary judgment” and “the parties [must] first ‘be afforded a reasonable opportunity for discovery.’” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir. 2013) (quoting Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985)).

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. See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005). “[T]he 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)). Rule 56(d) provides that the Court may deny or continue a motion for summary judgment “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” The Court should deny a non-moving party’s Rule 56(d) request for additional discovery when “the additional evidence ...

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