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Mbewe v. Liken

United States District Court, D. Maryland

February 27, 2017

FRANCIS C. MBEWE, #360922 Plaintiff
v.
LT. LIKEN, C.O. II ZILER, JOHN DOE 1-SERGEANT, [1] LT. GORDON, MANAGER YATES, JOHN DOE 2, SHIFT COMMANDER, CORRECTIONAL OFFICERS AT WESTERN CORRECTIONAL[2] INSTITUTION, Defendants

          MEMORANDUM OPINION

          James K. Bredar United States District Judge

         Pending 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, [3] by their counsel, have filed a motion to dismiss or, in the alternative, for summary judgment supported by declarations and exhibits.

         The 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.

         BACKGROUND

         Mbewe 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.

         Mbewe 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. Id.

         DEFENDANTS' RESPONSE

         Protective 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).

         Liken 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.

         Mbewe's 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 (cell history).

         Captain 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.

         Yates 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.

         In his 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).

         Almost 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 ...


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