United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE
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 IILeroy Conrad, CO II Shawn Murray. CO II
Dean W. Rounds, and CO II Kevan Whetstone, (collectively, the
"State Defendants"). Also pending is Plaintiffs Motion
for Leave to File a Surreply." 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.
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. 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.
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. 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.
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. 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.
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.
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
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.
Exhaustion of Administrative Remedies
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. 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.
State Defendants' Response
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
Exhaustion of Administrative Remedies
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. 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.
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.
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.
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.
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. The Report determined that physical
force was employed to thwart an attempt ...