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Murphy v. Conrad

United States District Court, D. Maryland, Southern Division

March 30, 2017

EDDIF MURPHY, Plaintiff,
v.
LEROY CONRAD, et al., Defendants.

          MEMORANDUM OPINION

          GEORGE J. HAZEL, UNITED STATES DISTRICT JUDGE

         Plaintiff Eddie Murphy ("Plaintiff" or "Murphy"') brings suit against various correctional officers and medical staff at the North Branch Correctional Institution ("NBCT") for alleged violations of his Eighth Amendment rights. ECF No. 1. Presently pending is a Motion to Dismiss or. in the alternative, for Summary Judgment. ECF No. 10. filed on behalf of Defendants CO II[1]Leroy Conrad, CO II Shawn Murray. CO II Dean W. Rounds, and CO II Kevan Whetstone, (collectively, the "State Defendants").[2] Also pending is Plaintiffs Motion for Leave to File a Surreply."[3] ECF No. 17. to which the State Defendants have filed a Motion to Strike. ECF No. 19. After considering the pleadings and exhibits, the Court concludes a hearing is unnecessary. See Loc. R. 105.6 (D. Md. 2016). For reasons to follow. Murphy's Motion for Leave to File a Surreply is granted, and the State Defendants" Motion to Strike is denied. The State Defendants' Motion lo Dismiss or, in the alternative, Motion for Summary Judgment. EGF No. 10. is granted.

         I. BACKGROUND

         Plaintiff Eddie Murphy is ineareerated at NBCI in Cumberland. Maryland. In his Complaint. Murphy claims that his rights under the Eighth Amendment were violated on February 26. 2013. when the State Defendants, who are correctional officers at NBCI. pepper sprayed him while he was attempting to hang himself in his jail cell. ECF No. 1 at 2-3.[4] Murphy also faults the State Defendants for the lack of response he has received to his administrative remedy procedure ("ARP") requests concerning the incident. Id. at 4. He is seeking compensatory and punitive damages. Id. at 5.

         Murphy filed his Complaint against Defendants Officer Leroy Conrad. Officer Shawn Murray. Officer Dean W. Rounds, and Officer Kevan Whetstone (the "State Defendants") and Dr. Colin Ottey and Jennifer Giles. R.N. (the "Medical Defendants") with this Court on January 27. 2016. ECF No. 1.[5] Defendants Conrad. Murray. Rounds, and Whetstone filed a Motion to Dismiss or. in the alternative, for Summary Judgment. ECF No. 10, on May 5. 2016. Murphy filed a Response in Opposition. ECF No. 12. and the State Defendants filed a Reply. ECF No. 14. Murphy has also filed a Proposed Surreply and two additional Supplements. ECF No. 17; ECF No. 20: ECF No. 22. Defendants move to strike Murphy's Proposed Surreply. ECF No. 19.

         A. Murphy's Allegations

         1. Excessive Force

         Murphy states that on February 26. 2013. he was placed on '"staff alert" for allegedly assaulting Shannon Sweitzer. a correctional staff member. ECF No. 1 *i 1: ECF No. 12-2 ¶ 3. On that same day. Murphy told Officers Conrad. Whetstone. Murray, and Rounds that he was having suicidal thoughts, and requested to see his "psych" who was on duty. Id. ¶¶ 2-3: ECF No. 12-2 ¶ 5. Murphy was receiving mental health treatment because he allegedly suffers from depression and other mental health conditions. Id. Murphy claims his cries for help went unanswered by the officers who assumed it was a joke, and that they in fact encouraged him to hang himself. Id. ¶ 4: ECF No. 12-2 ¶ 3.[6] His suicidal thoughts became unbearable due to the yelling, banging, and smells of human excrement on the tier. ECF No. 1 ¶ 5; ECF No. 12-2 ¶ 6.

         Murphy then made the decision to hang himself, and states that he does not remember Officer Conrad ordering him to remove the rope from around his neck before pepper spraying him. ECF No. 1 ¶ 8: ECF No. 12-2 ¶ 8. Murphy claims that when Officer Conrad arrived at his cell. Murphy was "hanging by [his] shirt from the vent motionless" and "unconscious and unable to obey [Conrad's order]." ECF No. 12-2 *' 7. Randy Golden, the inmate in the cell next to Murphy's cell, states that "[w]hen Officer Conrad came to cell 1 -C-2 he screamed that inmate Murphy was hanging to the other officers. He then ordered Murphy to take the rope from around his neck once then opened the food slot and sprayed pepper spray a long burst [sic] into Murphy's cell." ECF No. 20-1 ¶ 4. Murphy claims the State Defendants failed to follow proper procedures before applying pepper spray because a sergeant and a mental health provider were not present before he was pepper sprayed. ECF No. 1 ¶¶ 10-11.

         Murphy claims that when he regained consciousness, he began to feel slaps and punches to his face. ECF No. 12-2 ¶ 8. Inmate Golden also states that he "listened in the radiator on the wall in the back of the cell and could hear Officers [sic] and Conrad punching and slapping [Murphy] saying 'wake up nigger!"" ECF No. 20-1 ¶ 5. Murphy was then dragged away by the officers to the medical unit "for treatment." ECF No. 1 ¶ 13; ECF No. 12-2 ¶ 8: ECF No. 20-1 ¶ 6. Video footage captured from outside the cell shows two officers dragging Murphy's body, which appears to be limp, out of his cell and down a large hallway. ECF No. 14-1 at 10:20:10 A.M.[7]

         Murphy was subsequently evaluated in the medical unit by Dr. Colin Ottey and Jennifer Giles. R.N. ECF No. 1 ¶¶ 14. 15. Murphy claims that he was initially denied a shower and water to wash the pepper spray out of his eyes. Id. Murphy points to Nurse Giles" note stating that "staff wiped as much as possible from [patient's] skin" as evidence that the amount of pepper spray was excessive. ECF No. 12-2 ¶ 10. Murphy stales, "i felt as if I was in a pool of lava and I could barely breathe due to the fumes." ECF No. 12-2 ¶ 10. He continues that he was "in severe pain from the pepper spray as well as being slapped and punched by Officers Conrad and Rounds.'" and that "[t]his pain lasted over twenty four hours." Id. ¶ 11.

         2. Exhaustion of Administrative Remedies

         Murphy declares and maintains that he has tried to exhaust all administrative remedies regarding the February 26. 2013 incident. ECF No. 1 ¶ 16: ECF No. 12-2 ¶¶ 14-15. On March 8. 2013. Murphy filed an administrative remedy procedure ("ARP") request. ECF No. 12-1 at 1: see also ECF No. 10-4 at 5. Institutional Remedy Coordinator Jared Zais, who received the ARP request, instructed Murphy to resubmit his request with "additional documentation that indicates Force is not to be used to save his life." Id. Murphy attests that he complied with these instructions to resubmit his ARP request with the additional information. Id. He states that he left the new ARP request in his cell door for collection. ECF No. 12-2 ¶ 14. and identifies Defendants as the officers who take his ARP requests "as if they are going to sign and stamp them." ECF No. 1 at 5. Murphy allegedly did not receive a "carbonless" copy of his request or a response back. ECF No. 12-1 at 2. Murphy attests that he appealed to "Reisterstown" and to "Sudbrook Lane." but received no reply from either office.[8] ECF No. 1 ¶ 16: ECF No. 12-1 at 2. He also claims to have "re filed remedy requests four times" but "never received a yellow copy as a receipt." ECF No. 1 at 4-5.

         B. State Defendants' Response

         The State Defendants move to dismiss Plaintiffs Complaint for failure to exhaust administrative remedies, or for summary judgment in their favor because there is no genuine issue of material fact at issue. ECF No. 10 at 2-3. Their exhibits include declarations, the Use of Force Report written after the incident, the Investigator's Summary. ARP records, copies of Murphy's mental health records, and portions of the DPSCS Use of Force Manual. ECF Nos. 10-3-10-11. The State Defendants have also included video footage from NBC1. ECF No. 14-1.[9]

         1. Exhaustion of Administrative Remedies

         Following the incident. Murphy tiled an Administrative Remedy Procedure ("ARP") request on March 8. 2013, Case No. NBCI-0563-13. primarily complaining about the response to his suicide attempt by correctional and medical staff.[10] ECF No. 10-4 at 5. In the ARP. Murphy recounts the incident as it happened to him:

On 2/26/2013 complainant Eddie Murphy was placed in a temporary cell I-C-3 for alleged inmate rule violation 101, assault on Shannon Swcitzer. LPN. At the reported approximate time 10:19 a.m.. L. Conrad. CO II was conducting a security round when he found complainant hanging from the vent, by his neck with a t-shirt. from about 9 feet. Conrad gave complainant several direct orders to remove the rope from around his neck to which complainant was nonresponsive due to his semiconscious state.[11]

ECF No. 10-4 at 5. Murphy was directed to resubmit the ARP request with additional information. Id.; ECF 10-5 ¶ 3. He was instructed to "provide documentation that indicates that force is not to be used to save a life." Id. The instructions then asked. "[w]as CPR necessary? If so, who brought you back to life?" hi.: ECF No. 10-4 at 3. On March 13. 2013. Murphy allegedly received the Warden's response advising him to resubmit with additional documentation. ECF No. 10-4 at 6: ECF No. 10-5 ¶ 3. According to Defendants. Murphy did not resubmit the ARP. and the claim was procedurally dismissed for failure to resubmit. ECF No. 10-4 at 3; ECF No. 10-5 ¶ 3.

         Defendants attest that Murphy did not appeal the dismissal of his ARP request to the Department of Public Safety and Correctional Services (DPSCS) Administrative Remedies Procedures/Inmate Grievance Program Unit (ARP/IGP Unit), as required by applicable institutional guidelines and state regulations. In support of this assertion. Defendants attach the declaration of Christina Ripps. a Correctional Case Management Specialist at the ARP/IGP Unit. ECF No. 10-6 ¶ 2. Ripps testifies that the "ARP/IG[P] Unit processes every appeal of an ARP filed by an inmate that is sent to DPSCS headquarters to the Commissioner of Correction and documents the receipt of the appeal." Id. She attests that since the February 26. 2013 incident. Murphy has filed only two appeals with her office, and they were unrelated to the incident. Id.

         Defendants further declare that Murphy did not file an appeal with the Inmate Grievance Office ("IGO"). as required. Defendants attach the declaration of Russell A. Neverdon. St., Executive Director of the IGO. ECF No. 10-7. Neverdon testifies that he has "reviewed the records" and found that Murphy "has not filed any grievances referencing an assault and denial of medical treatment on 2/26/13." Id. ¶ 3. Finally. Defendants respond to Murphy's allegations that the correctional officers at NBCI stole ARP forms from his cell. In attached declarations. State Defendants Feroy Conrad. Shawn Murray. Dean Rounds, and Keven Whetstone testify to having "never discarded, destroyed or stolen any Administrative Remedies (ARPs) complaints belonging to inmate Eddie Murphy. #306-651." ECF No. 10-8 ¶ 3: ECF No. 10-9 ¶ 3; ECF No. 10-10 ¶ 3: ECF No. 10-11 ¶ 3.

         2. Excessive Force

         Correctional staff prepared a Use of Force ("UOF") Report after the February 26. 2013 incident. It reads in full:

On 2/26/13 Officer Leroy Conrad COM was preparing to conduct a security round on C-Tier in Housing Unit # 1. At approximately 10:19 AM, Officer Conrad was alerted to Temporary Housing Cell l-C-3. which houses Inmate Eddie Murphy. #306651. As Officer Conrad arrived at the cell, he observed Inmate Murphy standing on his toilet with a make shift rope tied to the cell vent and wrapped around his neck. Officer Conrad gave Inmate Murphy several direct orders to remove the rope and come to the security slot and be handcuffed, to which Inmate Murphy did not respond. Officers Dean Rounds and Shawn Murray responded to assist. As Officer Conrad delivered a short burst of pepper spray into the cell. Inmate Murphy stepped off the toilet causing the rope to tighten around his neck. Officer Murray then called via Housing Unit Radio to have the cell door opened and for assistance. Officers Conrad and Rounds entered the cell, untied the rope from [Murphy's] neck and placed him in handcuffs. After confirming that Murphy was breathing on his own and had a pulse. Officers Kevan Whetstone and Rounds removed Inmate Murphy from the cell due to the overwhelming effect of the pepper spray to the Housing Unit # 1 Medical Room. After arriving at the Housing Unit #1 Medical Room, Dr. Colin Ottey evaluated Inmate Murphy and determined that Inmate Murphy would need transported [sic] to the Western Correctional Institution Infirmary for further evaluation and observation. Inmate Murphy was then escorted to the WCI infirmary without further incident. Photographs were taken by Sergeant Walter Iser.

ECF No. 10-3 at 20.[12] The Report determined that physical force was employed to thwart an attempt ...


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