United States District Court, D. Maryland
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
pending and ready for resolution are: (1) a motion for
summary judgment filed by Defendants former warden of Roxbury
Correctional Institution Gregg L. Hershberger, Lt. Gary
Winters, Sgt. James Stotler, C.O. II Roy Hess, C.O. II Marvin
Gillespie, and C.O. II Chaz Younger
(“Defendants”); (2) a motion for leave to file a
surreply by Plaintiff David Brightwell
(“Plaintiff”); and (3) a motion for leave to file
a supplemental brief in opposition to summary judgment by
Plaintiff. (ECF Nos. 141; 172; 180). The issues have been
fully briefed, and the court now rules, no hearing being
deemed necessary. Local Rule 105.6. For the following
reasons, Defendants' motion for summary judgment will be
granted in part and denied in part; Plaintiff's motion
for leave to file a surreply will be granted in part and
denied in part; and Plaintiff's motion to file a
supplemental brief will be denied.
has been an inmate in the Maryland prison system since 1997.
(ECF No. 163-1 ¶ 2). In April 2009, he was moved to
Roxbury Correctional Institution (“RCI”), where
he was placed in Housing Unit 5. (Id. ¶ 4; ECF
No. 163, at 7). According to Plaintiff, Housing Unit 5 was
“an environment where correctional officers . . . were
given virtually free reign . . . to harass inmates for no
valid reason.” (ECF No. 163, at 13). Plaintiff began
having trouble with the correctional officers at RCI very
soon after his arrival. As the result of a prior injury,
Plaintiff has an arm injury that led the medical staff at his
previous place of incarceration to issue an order that he
should be handcuffed in front of his body on a permanent
basis. (ECF No. 164-1, at 247). Plaintiff asserts that
Defendants and other correctional officers at RCI refused to
agree to cuff him in the front. Plaintiff refused to be
cuffed from behind, and, in turn, the correctional officers
would not allow him access to various activities that
required him to leave his cell. (ECF Nos. 163-1 ¶ 22;
163-2 ¶¶ 4, 7). As a result of these interactions,
Plaintiff filed complaints through the Administrative Remedy
Procedure (“ARP”) process with the Warden of RCI,
Defendant Hershberger. (See, e.g., ECF No. 164-1, at
104, 107, 115, 127, 251, 346, 370). One of the first ARPs
that Plaintiff filed after being transferred to RCI was
against Defendant Winters on June 4, 2009, for informing him
that he would have to be cuffed with his hands behind his
back from now on. (Id. at 251).
October 1, 2009, Defendants attempted to move Plaintiff and
another inmate into a shared cell. (ECF No. 163-1 ¶ 29).
Plaintiff had long-standing emotional issues, including
paranoia, about being celled with another inmate.
(Id. ¶ 16). According to Plaintiff, when both
he and the other inmate refused to cooperate during the
transfer, several Defendants assaulted them. (Id.
¶ 29; ECF No. 164-1, at 265-67). Defendants tell a
markedly different story of the October 1 encounter. They
allege that Plaintiff attacked the other inmate while they
attempted to transfer him into the cell and that any injuries
sustained by Plaintiff were the result of fighting with the
other inmate and their reasonable efforts to subdue the two
fighting prisoners. (ECF No. 141-1, at 7). After the alleged
assault, Plaintiff filed an ARP describing his version of the
incident and suggesting that Defendant Winters was behind the
transfer of the other inmate and, in turn, the assault,
because of the numerous administrative complaints Plaintiff
had filed, including, in particular, the one against
Defendant Winters. (ECF No. 164-1, at 265-67). Even though
Defendant Winters was mentioned in the complaint, it appears
that Defendant Hershberger assigned Winters to investigate
this ARP. After interviewing Plaintiff and Defendant
Gillespie, Defendant Winters found that there was “no
merit to [Plaintiff's] claims” and recommended
dismissal of the ARP. (Id. at 260).
October 16, Plaintiff was moved to a different cell in
Housing Unit 5 where he was told he would have a cellmate.
Plaintiff again stated that he would not share a cell. (ECF
No. 163-1 ¶ 33). According to Plaintiff and his
witnesses, Defendants dragged him up the stairs, put him into
the new cell, and physically beat him. (Id.; ECF No.
163-2 ¶ 8). Plaintiff filed an ARP for this purported
attack as well. (ECF No. 164-1, at 298). Apparently believing
this ARP to be related to the October 1 incident, Defendant
Hershberger dismissed this complaint as having been already
addressed. (Id.). Plaintiff appealed this decision
up to a hearing with an administrative law judge
(“ALJ”), who, after distinguishing between the
two incidents, ruled on the merits that Plaintiff's
witnesses, “while supportive of [his version], did not
offer convincing testimony to bolster [his] rendition of
events.” (ECF No. 141-2, at 155-65).
that October until February 2011, Plaintiff continued to face
a litany of smaller issues related to his refusal be cuffed
behind his body. He filed numerous ARPs alleging missed
haircuts, showers, lunches, and physical therapy sessions.
(See, e.g., ECF No. 164-1, at 104, 107, 115, 127,
251, 346, 370). In December 2010, Darnell Owens became
Plaintiff's cellmate, and Plaintiff encouraged him to
submit ARPs over various issues Mr. Owens had with the
Housing Unit 5 correctional officers. (ECF No. 163-1
¶¶ 41-42). According to the cellmates, Defendants
later offered a “truce” to them if they agreed to
stop filing ARPs. (Id. ¶ 41; ECF No. 163-3
¶ 4). But after hearing what they believed to be a
beating in a cell near theirs, Plaintiff wrote notes on
February 4, 2011, to Defendant Stotler and another Housing
Unit 5 Sergeant “protesting” the beatings and
saying, “[F]rom now on when you want to jump on any
prisoner illegally, [then] come and beat and jump on me also.
Let it be known, that if you all want to jump, beat, and kill
a prisoner illegally [then] let it be me.” (ECF No.
164-2, at 91-95).
avers that Defendants assaulted him for a third time the day
after he delivered these notes. On February 5, Defendants
stopped Plaintiff after his shower, pulled him into a cell,
and assaulted him. (ECF No. 163-1 ¶¶ 46-47).
Defendants deny that they attacked Plaintiff that day and
contend that nothing unusual at all happened on February 5.
(ECF No. 141-1, at 35).
administrative remedy procedures are discussed in more detail
in the exhaustion section below. After the alleged assault in
February 2011, Plaintiff filed three administrative
complaints. First, he sent a letter to the Internal
Investigative Unit (“IIU”), an independent group
that investigates employee misconduct. (ECF No. 164-2, at
127-29). Second, Plaintiff sent a grievance directly to the
Inmate Grievance Office (“IGO”), the highest
level of adjudicator available in the ARP process.
(Id. at 135-36). The IGO dismissed his complaint for
having not previously exhausted the lower levels of the ARP
process. (Id.). Third, he filed an ARP about the
incident. Because ARPs had to be received and signed by
on-duty officers, who Plaintiff says refused to accept his
ARPs, he mailed this ARP directly to Defendant Hershberger as
Warden. (ECF No. 163-1 ¶ 52). The ARP coordinator who
eventually received the mailed complaint dismissed the ARP
because it was not properly signed. (ECF No. 164-2, at 139).
Plaintiff appealed this dismissal first to the second level
of the ARP procedure, the Commissioner of Corrections - who
affirmed the decision - then, up to the IGO - which decided
to hold a hearing on the case in front on an ALJ.
(Id. at 138-153). That hearing occurred on November
9, 2011, but Plaintiff's witnesses were not present when
he arrived. When the ALJ told Plaintiff that the institution
would attempt to bring one of those witnesses, Mr. Owens, to
the hearing, but that he had to present his case with or
without the witnesses, Plaintiff refused to proceed.
(Id. at 193-201).
next day, more than a month before the ALJ issued her
opinion, Plaintiff, representing himself, filed the instant
suit in federal court seeking damages and injunctive relief
for violations of state tort law and 42 U.S.C. § 1983.
(ECF No. 1, at 4). He filed his First Amended Complaint on
December 21, 2011. (ECF No. 6-1). On February 26, 2013, this
court granted Defendants' motion to dismiss in part,
authorized the appointment of counsel for Plaintiff, and
directed the newly-appointed counsel to file a Second Amended
Complaint. (ECF Nos. 69, at 11-16; 70). Plaintiff filed a
Second Amended Complaint on July 15, 2013, asserting claims
under (1) 42 U.S.C. § 1983 for violations of his First,
Eighth, and Fourteenth Amendment rights; (2) the Maryland
Constitution; and (3) state laws for battery, negligence, and
intentional infliction of emotional distress. (ECF No. 80).
In the Second Amended Complaint, Plaintiff alleged the
October 1 and 16, 2009 assaults for the first time.
(Id. ¶¶ 11-17). On October 23, 2015, after
the close of discovery, Defendants filed the pending motion
for summary judgment. (ECF No. 141). Plaintiff responded in
opposition, and Defendant replied. (ECF Nos. 163; 171).
Motion for Leave to File a Surreply
Defendants filed their reply, Plaintiff moved to file a
surreply. (ECF No. 172). Under Local Rule 105.2(a),
“[u]nless otherwise ordered by the Court, surreply
memoranda are not permitted to be filed.” Although a
district court has discretion to allow a surreply, surreplies
are generally disfavored. Chubb & Son v. C.C.
Complete Servs., LLC, 919 F.Supp.2d 666, 679 (D.Md.
2013). A surreply may be permitted “when the moving
party would be unable to contest matters presented to the
court for the first time in the opposing party's
reply.” Khoury v. Meserve, 268 F.Supp.2d 600,
605 (D.Md. 2003) (citation omitted). By contrast, “[a]
motion for leave to file a surreply may be denied when the
matter addressed in the reply is not new.” Marshall
v. Capital View Mut. Homes, No. RWT-12-3109, 2013 WL
3353752, at *3 (D.Md. July 2, 2013) (citation omitted).
argues that a surreply is necessary to address
Defendants' arguments with regard to judicial tolling,
equitable tolling, and the exclusion of an affidavit by a
previously unidentified prisoner, Shabazz Watkins, who
witnessed a part the 2011 assault. (ECF No. 171, at 2).
Plaintiff's first two arguments fail because both of
these legal issues were raised by Plaintiff himself in his
opposition brief and were not new in Defendants' reply.
(ECF No. 163, at 40-42).
third reason is sufficient. Defendants argued in their reply
brief that Mr. Watkins's affidavit should not be
considered because Plaintiff did not name him as a witness in
his interrogatories until he updated in February 2016, months
after the close of discovery. (ECF No. 171, at 17-18).
Defendants do not contest that they made this argument for
the first time in their reply. Instead, they correctly point
out that they could not have made this argument in their
opening brief because they did not know or expect that
Plaintiff would include a statement from a new witness that
he obtained months after the close of discovery. (ECF No.
173, at 2). Because Plaintiff was unable to respond to this
argument, Plaintiff's motion to file a surreply is
granted with respect to these arguments.
Motion to Supplement
11, 2016, Plaintiff moved to file a supplemental brief. (ECF
No. 180). He argues that his supplement is necessary because
of (1) new deposition evidence taken from Defendant David
Scott Miller after briefing was complete and (2) the June 6,
2016, decision by the Supreme Court of the United States in
Ross v. Blake, 136 S.Ct. 1850 (2016). Neither
warrants supplemental briefing. (Id.). First, Plaintiff
asserts that the deposition testimony from Defendant Miller
demonstrates that there is a dispute of fact
“concerning Defendants' harassment of [Plaintiff],
which was the basis for [Plaintiff's] administrative
complaints.” (ECF No. 180-1, at 5). Plaintiff
emphasizes that motive is material (ECF No. 182, at 3), but
the relevant motive on summary judgment is Defendants'
motive for the putative assault, not Plaintiff's motive
for filing ARPs. Second, as discussed below, Ross
provides a framework for our analysis of whether ...