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Horton v. Kopp

United States District Court, D. Maryland

March 9, 2018

RICKY HORTON, Plaintiff,
v.
NANCY KOPP, et al., Defendants.

          MEMORANDUM OPINION

          PAUL W. GRIMM, UNITED STATES DISTRICT JUDGE

         Plaintiff 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., [1] Mental Health Professional Counselor-Advanced Bruce Liller, Psychology Associate I Lauren Beitzel, Acting Lieutenant Janet Puffenbarger, [2] Correctional Officer Timothy Marchinke, and Correctional Officer Cody Gilpin.[3] 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.[4] 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 without prejudice.

         Background

         Alleged Improper Removal from the Special Needs Unit

         Plaintiff 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.

         Mental Health Evaluation and Care

         Plaintiff 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.

         Alleged Assault on June 25, 2016

         Plaintiff 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.

         Administrative Exhaustion

         Plaintiff alleges that he has administratively exhausted his claims

[a]ll the way to Inmate Grievance Officer, but ha[]s 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 or inmates.

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.

         Mental Health Claims[5]

         Plaintiff 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.

         On 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).

         Assault Claims

         Plaintiff 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.[6] Id.

         Procedural History

         Plaintiff 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.[7] Defs.' Mem. 3.

         As 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.

         Standards ...


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