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Berrios v. Keefe Commissary Network, LLC

United States District Court, D. Maryland

March 1, 2018




         Self-represented Plaintiff Osbaldo Lemus Berrios, a prisoner incarcerated at Eastern Correctional Institution (“ECI”) in Westover, Maryland, has brought this civil rights action pursuant to 42 U.S.C. § 1983 against Keefe Commissary Network (“KCN”) and its employee, Lionel Lofland, alleging violations of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Berrios alleges that Lofland assaulted him by throwing commissary items at him, which caused him pain and an ear infection that required hospitalization. Defendant KCN has filed two Motions to Dismiss in which it asserts that it is not a state actor and thus is not liable under § 1983. Defendant Lofland did not answer or otherwise respond to the Complaint. Berrios opposes the Motions to Dismiss and has filed a Motion for Summary Judgment. Having reviewed the pleadings and briefs, the Court finds that no hearing is necessary to decide these Motions. See D. Md. Local R. 105.6. For the reasons set forth below, Defendant KCN's Motion to Dismiss is granted, and Berrios's Motion for Summary Judgment is denied.


         Berrios alleges that on July 8, 2015, at approximately 10:00 p.m., Lofland arrived outside Berrios's cell at the Maryland Correctional Institution - Jessup (“MCIJ”), where Berrios was then incarcerated. Lofland, who was accompanied by MCIJ Correctional Officer (“C.O.”) Omope, was there to deliver commissary items that Berrios had purchased from KCN. Upon receiving his delivery from Lofland, Berrios noticed that several bottles were leaking, and that a package of honey buns had been opened and was now saturated with liquid.

         Berrios told Lofland that he would not accept the damaged items and that he wanted to be reimbursed for them. Lofland responded, “I don't give a fuck! You take it all, or you refuse all of it!” Supp. to Compl. at 2, ECF No. 7. Berrios repeated that he would not accept the damaged items. Berrios alleges that Lofland appeared to be under the influence of alcohol or drugs at this time.

         C.O. Omope stepped in and told Lofland that he should give Berrios only the undamaged items. Lofland replied, “This is why I didn't want to come here and deal with these bitches! . . . You want this shit, take this shit!” Id. Lofland shouted racial epithets at Berrios. Lofland also began throwing bottles of hot sauce, Pepsi, shampoo, and hair conditioner. The bottles struck Berrios's head, stomach, and groin, causing him “loss of breath and extreme pain.” Compl. at 2, ECF No. 1. The bottles also burst upon impact, covering Berrios with their contents. The hot sauce even spilled into Berrios's eyes and ears, which later caused him to develop an ear infection that necessitated hospitalization. When C.O. Omope intervened to stop the assault, Lofland turned on C.O. Omope and began throwing commissary items at him as well.

         Berrios and C.O. Omope were later interviewed about the incident, and Officer Omope verified Berrios's account. Berrios further asserts that he was cleared of any wrongdoing after correctional staff reviewed video surveillance of the assault. Berrios told correctional staff that he wanted to press criminal charges against Lofland, but nothing appears to have happened to further that request.

         Berrios filed this civil rights lawsuit on March 27, 2017, asserting that KCN and Lofland violated his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment rights to due process and equal protection of the law. He filed a Supplement to the Complaint with an exhibit on April 26, 2017, which this Court accepted as an amendment to his original Complaint.


         KCN, the only Defendant that has responded to the Complaint, seeks dismissal on the grounds that KCN is a private corporation and therefore cannot be held liable under § 1983. Before addressing KCN's Motion, the Court will first address several other motions filed by Berrios.

         I. Preliminary Motions

         A. Motion to Amend

         On September 7, 2017, Berrios filed a Motion to Amend the Complaint, ECF No. 27, seeking to replace his original Complaint with a version submitted with the Motion. The Amended Complaint appears to be substantively the same as the original Complaint and the Supplement to the Complaint previously filed, except that this new version increases the amount in damages that Berrios seeks from $2.5 million to $5 million.

         Pursuant to Federal Rule of Civil Procedure 15(a), “[a] party may amend its pleading once as a matter of course within 21 days after serving it, or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's ...

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