United States District Court, D. Maryland
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.
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.
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.
Motion to Amend
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
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 ...