United States District Court, D. Maryland
FRANCIS C. MBEWE, #360922 Plaintiff
LT. LIKEN, C.O. II ZILER, JOHN DOE 1-SERGEANT,  LT. GORDON, MANAGER YATES, JOHN DOE 2, SHIFT COMMANDER, CORRECTIONAL OFFICERS AT WESTERN CORRECTIONAL INSTITUTION, Defendants
K. Bredar United States District Judge
is Francis C. Mbewe's Complaint filed pursuant to 42
U.S.C. § 1983. Defendants Lt. Rodney Liken, CO II Bobby
J. Ziler, Captain William F. Gordon, and Michael Yates,
their counsel, have filed a motion to dismiss or, in the
alternative, for summary judgment supported by declarations
issues have been briefed, the matter is ripe for disposition,
and no hearing is required. See Local Rule 105.6 (D.
Md. 2016). Defendants' motion, treated as a motion for
summary judgment will be granted. Judgment will be entered in
favor of defendants Liken, Ziler, Gordon, and Yates.
is presently incarcerated at Patuxent Institution in Jessup,
Maryland. Mbewe claims defendants violated his Eighth
Amendment rights by failing to protect him from a serious
risk of harm during the time he was an inmate at Western
Correctional Institution (“WCI”) in Cumberland,
Maryland. Mbewe also alleges defendants were negligent in
failing to perform their duties to protect him in violation
of the Maryland Tort Claims Act (“MTCA”). As
redress, he is seeking declaratory relief, compensatory
damages of $50, 000 against each defendant jointly and
severally, a jury trial, and other relief the court deems
just and proper.
states that on April 15, 2014, at approximately 4:30 p.m. he
was stabbed in his back and left leg by his cellmate
Kristopher Madison at WCI. Mbewe claims that prior to the
stabbing, he had submitted a request to defendants Gordon,
Yates, and the “John Doe shift” to place him on
protective custody, single-cell status because he was having
ongoing problems with his cellmate, who called him a snitch.
With his complaint, Mbewe filed a copy of a letter dated
October 18, 2013, addressed to Liken, Yates, and/or “to
whom it may concern” asking to be placed on protective
custody because he feared that he would be harmed by other
inmates. ECF 1-2 at pp. 4-7. Mbewe's letter states that
on October 17, 2013, he had informed Ziler that he was having
problems with his cellmate and needed to be moved because it
was an emergency that could turn violent at any time. In that
letter, Mbewe also stated that Ziler was aware that he had
been assaulted in the shower on July 10, 2012, at Maryland
Correctional Institution- Hagerstown (“MCIH”)
because he had been labeled a snitch. Id. After the
assault in the shower, Mbewe was transferred to WCI.
custody (“PC”) is a special housing status for
inmates who require separation from the general prison
population and/or protection for safety reasons. ECF No. 18-2
(Liken declaration). Lieutenant Rodney Liken attests that, in
his opinion, placing an inmate in PC who does not meet the
criteria could position that inmate to “wreak havoc on
the PC population, which consists of inmates with verified
threats on their lives” because an unqualified inmate
in PC could serve as an agent for gangs or inmates who want
to harm PC inmates. Id. Captain William Gordon
attests that PC determinations are made collectively after
review by administrative, case management, and unit team
members. ECF No. 18-3 (Gordon declaration).
states he met with Mbewe on August 23, 2013, in response to
his informal complaint that he had been labeled “a
snitch” and was in fear of his cellmate. ECF No. 18-2.
Mbewe, who had been provided a different cellmate before the
meeting, informed Liken that he did not have any issues with
his new cellmate and felt safe. Id. ¶3. Liken
gave Mbewe the opportunity to specify why he believed he was
in danger and the names of the persons who were threatening
him. Id. Mbewe refused to provide
the information so his claims could not be substantiated.
Liken therefore determined that Mbewe did not meet
departmental criteria for PC assignment. Id. ¶
5. Notably, Mbewe never informed Liken that he feared
Kristopher Madison. Id. ¶¶ 3, 6.
October 18, 2013, letter makes no mention of Kristopher
Madison. Neither Yates nor Gordon recalls seeing the letter
prior to this lawsuit. ECF Nos. ECF 18-3 ¶ 4; ECF 18-4
¶ 4. At the time Mbewe wrote the letter, he was housed
in Cell #4-C-27. ECF No. 18-5 at p. 4. Kristopher Madison was
not Mbewe's cellmate at that time. Id. at 9
Gordon denies having any knowledge of any evidence other than
Mbewe's allegations that he was in danger from prison
gangs because he was labeled a snitch. ECF 18-3 ¶ 7.
Gordon attests that inmates often allege they are being
threatened by gang members to secure PC or single cell
status, and as an experienced correctional officer, he found
Mbewe's claims not credible. Id. Gordon states
that when he has knowledge that an inmate is in danger from
another inmate, he records it in his notes. Gordon states he
has reviewed his notes and “can determine that I never
had any knowledge that Mr. Mbewe was threatened with harm by
inmate Kristopher Madison . . . prior to April 15,
2014.” Id. ¶ 5.
attests he has no recollection that Mbewe requested PC
status. ECF No. 18-4. Yates notes, however, that if Mbewe had
requested PC placement, the request would have been denied
because PC is a last resort since it is reserved for the most
vulnerable inmates at WCI. Yates explains that Department of
Public Safety and Correctional Services (DPSCS) policy does
not provide for PC assignment based solely on an inmate's
“bare bones” assertion that gangs are threatening
him for being a snitch. Id. ¶ 7. Further, Mbewe
did not have an enemy situation that warranted PC placement.
Id. ¶ 6. Yates attests Mbewe never told him
that he feared Kristopher Madison. Id. at ¶ 8.
October 18, 2013, letter, Mbewe asserted that he had informed
Ziler about his cellmate problems. ECF No. 1-2 at p. 4. Ziler
attests he cannot recall Mbewe telling him this information.
ECF 18-4. Further, Ziler has no recollection of Mbewe's
allegation he was assaulted in the shower on July 10, 2012,
at MCIH. Id.; see also ECF 18-5 at pp. 6-7.
Further, there are no Use of Force or Serious Incident
Reports involving Mbewe from July of 2012 at MCIH. ECF No.
18-7 (McNamee declaration).
seven months after he wrote his October 18, 2013, letter,
Mbewe was moved from Cell 4-A-12 to Cell 4-A-34 on April 15,
2014. ECF No. 18-5 at p. 3. That same day, Kristopher Madison
stabbed Mbewe in Cell 4-A-34. Once Mbewe informed Officer K.
Bittner that “you gotta get me out of here, my cell
buddy stabbed me, ” officers separated the two inmates
without incident and escorted Mbewe to the medical office for
treatment for a superficial laceration on his upper arm
approximately 1 inch in length, a 16 inch laceration on the
left side of his torso, and abrasions on his left elbow and
shoulder. There was no active bleeding. Nurse Carla Buck
cleaned and treated the wounds. ECF No. 18-5 at pp. 10-13;
ECF No.18-8. After treatment, Mbewe was moved to another
cell. ECF No. 18-5 at pp. 3, 12. Mbewe and Kristopher ...