United States District Court, D. Maryland
W. GRIMM, UNITED STATES DISTRICT JUDGE
Ricky Horton is an inmate incarcerated at North Branch
Correctional Institution (“NBCI”) in Cumberland,
Maryland. Am. Compl. ¶ 3, ECF No. 4. Plaintiff alleges
he was improperly removed from Special Needs Unit
(“SNU”) housing; he is receiving inadequate
medical treatment; and he was assaulted by a correctional
officer. Id. Plaintiff initiated this litigation
pursuant to 42 U.S.C. § 1983, and also brings state law
claims for assault, battery, negligence, and medical
malpractice. Pending is a Motion to Dismiss or, in the
alternative, for Summary Judgment filed by Warden Frank B.
Bishop, Jr.,  Mental Health Professional
Counselor-Advanced Bruce Liller, Psychology Associate I
Lauren Beitzel, Acting Lieutenant Janet Puffenbarger,
Correctional Officer Timothy Marchinke, and Correctional
Officer Cody Gilpin. Def.'s Mot., ECF No. 27. Plaintiff has
responded (ECF Nos. 29 & 37) and Defendants have filed a
Reply and a Supplemental Reply. ECF Nos. 30 & 31.
Plaintiff also has filed a Court-permitted Surrebuttal.
Surrebuttal, ECF No. 36. A hearing is unnecessary.
See Loc. R. 105.6 (D. Md. 2016). Defendants'
motion, construed as a motion for summary judgment, will be
granted. Plaintiff's claims for his removal
from the Special Needs Unit will be dismissed with prejudice.
Plaintiff's claims for the alleged assault and his
inadequate medical treatment will be dismissed without
prejudice for failure to exhaust his administrative remedies.
I decline to exercise supplemental jurisdiction and
therefore, his state law claims also will be dismissed
Improper Removal from the Special Needs Unit
alleges that he is disabled due to his psychological
condition and that he meets a number of statutory
classifications including the Rehabilitation Act, 29 USC
§§ 794 et seq. and the Americans with
Disabilities Act, 42 U.S.C. §§ 12101. Am. Compl.
¶¶ 16-18. He alleges that on August 13, 2014, he
was placed in the Special Needs Unit (“SNU”) due
to his “severe mental health illness.”
Id. ¶ 22. He alleges that he was removed from
the SNU based on Ms. Wilson's disregard for policies and
procedures. Id. ¶ 19. Further he alleges that
Ms. Wilson and Mr. Liller violated his rights when his
removal was done “without conducting the adqaut [sic]
and proper Mental Health evaluation and knowing that
[Plaintiff] suffer[s] from mental retardation that warrants
[his] placement on the special needs unit.”
Id. ¶ 23. According to Defendants, they moved
Plaintiff to the SNU on a trial basis and determined he was
not suited for participation in the program. Liller Decl.
¶¶ 4-6, ECF No. 27-3.
Health Evaluation and Care
generally alleges that his removal from the SNU and his
diagnosis and treatment have been inadequate. He alleges that
since his removal and placement in the general population he
has received but not taken his medication regularly, has had
his medication taken by other inmates, and has been
hallucinating. Am. Compl. ¶ 24; see also Med.
R. 2, ECF No. 27-5 (“Horton has regularly claimed
noncompliance with medications, stating that when he is in an
erratic, bad mood he finds it difficult to take his
medications when given to him.”); Admin. R. 41, ECF No.
27-6 (“He continues to state that his medications do
not work due to his own laziness/inability to up and take
them.”). Plaintiff also alleges that he has had
suicidal thoughts and hid medication in his cell in an
attempt to take his own life. Am. Compl. ¶¶ 37-39.
Plaintiff's cellmate, Eric Mills, brought Plaintiff's
expression of suicidal thoughts to the attention of NBCI.
Id. at ¶ 40; Admin. R. 24-26, ECF No. 27-6. At
that time, NBCI medical personnel discussed what Mr. Mills
reported with Plaintiff. See Id. ¶¶ 41-42.
Plaintiff alleges that he was returned to his cell without
“any precaution alerts.” Id. ¶ 42.
Assault on June 25, 2016
alleges that on June 25, 2016 he was being escorted in a
chair with his hands handcuffed behind his back to see Dr.
Vincent Siracusano by Correctional Officer Marchinke, when
Correctional Officer Gilpin confronted him. Am. Compl.
¶¶ 55, 59. He alleges that prior to that day he had
“many words with [Gilpin] before.” Id.
¶ 55. Plaintiff alleges that while in the hallway
Correctional Officer Gilpin “became angry and
unprofessional, and walk [sic] up and snatched Mr. Horton out
of the chair and started calling Mr. Horton dumb Black
niggas.” Id. ¶ 56. Plaintiff alleges that
Correctional Officer Gilpin then placed him in a headlock and
“started slinging Mr. Horton down the hallway by his
neck.” Id. He further alleges that Acting
Lieutenant Puffenbarger ed Correctional Officers Gilpin and
Marchinke to put him in a strip cell and that Correctional
Officer Gilpin grabbed his arm and tried to break
Plaintiff's hand and wrist. Id. at ¶ 57.
Lastly, Plaintiff alleges that as he was yelling in pain,
Correctional Officers Gilpin and Marchinke refused to provide
him with medical attention. Id. ¶ 58.
Correctional Officers Gilpin and Marchinke deny under oath
any wrongdoing. Marchinke Decl., ECF No. 27-9; Gilpin Decl.,
ECF No. 27-10.
alleges that he has administratively exhausted his claims
[a]ll the way to Inmate Grievance Officer, but has not
receive a response back yet, but due to the fact that Mr.
Ricky Horton['s] life, health, and safety is in
imm[e]nent danger . . . prisoner a[d]vocates felt it in the
best interest of [Plaintiff] to help him file this law-suit
[sic] before his psychosis disorder gets him kill by staffs
Am. Compl. ¶ 63. However, in his Opposition, Plaintiff
admits he had not administratively exhausted all of his
claims when he initiated this suit, stating that he
“wrote the courts in fear for his life, while
continuing to exhaust his administrative remedies with the
state of Maryland.” Pl.'s Opp'n 2.
filed a request for an administrative remedy procedure
(“ARP”) (NBCI ARP 2658-15) on December 22, 2015,
asking that he be put on a mental health plan to ensure his
safety and that of others, and to ensure he was taking his
medications. Admin. R. 24-25. This request arose after
Plaintiff confessed to Mr. Mills that he had hidden medicine
in their cell because he was depressed and contemplating
suicide. Id. Plaintiff's request alleged that he
received inadequate medical care, that he should have been
placed on a “caution alert” (due to his suicidal
thoughts), and that the prison was indifferent to the fact
that he could “become psychotic and dangerous.”
Id. at 25.
February 13, 2016, the Warden dismissed Plaintiff's
request, having found the allegations did not have merit.
Id. at 24. Plaintiff appealed the Warden's
decision. Id. at 20. The Commissioner dismissed
Plaintiff's appeal having found that “no policy,
procedure, rule, regulation, or law has been violated”
and that the prison staff “acted within the scope of
their training and license.” Id. at 19.
Plaintiff then appealed to the Inmate Grievance Office
(“IGO”) on June 29, 2016. Neverdon Aff. ¶
3(b), ECF No. 27-7. On January 25, 2017, the IGO responded to
Plaintiff that it required additional information from him as
required by regulation; however, IGO Executive Director
Russell A. Neverdon has attested that Plaintiff has not
responded. Id. Neverdon also has sworn that
“no final administrative decision has yet been rendered
on this grievance.” Id. ¶ 3(b).
filed a request for an ARP (NBCI ARP 1546-16) on July 8,
2016, alleging that Officer Gilpin attacked him as he was
being escorted to his cell and used a racial epithet towards
him. Id. at 52. The Warden dismissed Plaintiff's
request on August 12, 2016, finding that there was no
evidence that Plaintiff was attacked by the staff.
Id. Plaintiff appealed the Warden's decision to
the Commissioner of Corrections on August 31, 2016.
Id. at 48. On October 3, 2016-after Plaintiff filed
this lawsuit-the Commissioner also dismissed his appeal
having determined that the “Warden fully addressed your
initial complaint. [Plaintiff] failed to substantiate [his]
claim that Officer Gilpin acted in a less than professional
manner and assaulted [him].” Id. at 49. On
November 29, 2016, Plaintiff appealed the Commissioner's
ruling to the IGO. Neverdon Aff. ¶ 3(c). A hearing was
then scheduled to take place on May 11, 2017. Id.
filed this litigation on September 6, 2016. Compl., ECF No.
1. Plaintiff seeks redress for alleged Eighth Amendment
violations pursuant to 42 U.S.C. § 1983 against (1)
Correctional Officers Gilpin and Marchinke for excessive use
of force; (2) Acting Lieutenant Janet Puffenbarger for
failing to protect Plaintiff as he was allegedly assaulted;
(3) Bruce Liller and Laura Wilson for inadequate medical
treatment and removal from the SNU; and (4) Warden Bishop for
failing to take action. Am. Compl. ¶¶ 66-67, 69-70.
Plaintiff also brings state law claims against (1)
Correctional Officers Cody Gilpin and Timothy Marchinke for
assault and battery; (2) Lauren Beitzel, Jenette Simmons, and
Norma Halwager for negligence; and (3) Vincent Siracusano for
medical malpractice. Id. ¶¶ 64-65, 68. He
also names Nancy Kopp and the “Psychology Department
and officers of the North Branch Correctional
Institution” as Defendants, although he does not state
the claims brought against these Defendants. Defendants
Warden Bishop, Mr. Liller, Ms. Beitzel, Acting Lieutenant
Puffenbarger, Correctional Officer Marchinke, and
Correctional Officer Gilpin moved to dismiss Plaintiff's
complaint, or in the alternative for summary judgment,
arguing he has failed to exhaust his administrative remedies,
that he is receiving adequate psychological treatment, and
that he was not subjected to excessive force. Defs.' Mem.
already noted, Defendants' motion, construed as a motion
for summary judgment, will be granted. Plaintiff's claims
for his removal from the Special Needs Unit will be dismissed
with prejudice and Plaintiff's claim for the alleged
assault and his inadequate medical treatment will be
dismissed without prejudice for failure to exhaust his
administrative remedies. I decline to exercise supplemental
jurisdiction and therefore, his state law claims will be
dismissed without prejudice as well.