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Brightwell v. Hershberger

United States District Court, D. Maryland

August 31, 2016

DAVID BRIGHTWELL
v.
GREGG L. HERSHBERGER, et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE

         Presently 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.

         I. Background

         A. Factual Background[1]

         Plaintiff 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).

         On 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).

         On 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).[2]

         From 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).[3] 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).

         Plaintiff 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).

         B. Procedural Background

         Maryland's 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).

         The 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).[4] 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).

         C. Non-dispositive Motions

         1. Motion for Leave to File a Surreply

         After 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).

         Plaintiff 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).

         Plaintiff's 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.

         2. Motion to Supplement

         On July 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.).[5] 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 ...


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