United States District Court, D. Maryland
W. Grimm United States District Judge
Brandon Ryan Thompson (“Plaintiff” or “Mr.
Thompson”) is an inmate currently incarcerated at North
Branch Correctional Institution (“NBCI”) in
Cumberland, Maryland. Am. Compl. 1, ECF No. 16. He seeks
redress pursuant to 42 U.S.C. § 1983 for alleged Eighth
Amendment violations on May 30, 2015 by Correctional Officers
Chase Dykes and Luis Santos (in both their official and
personal capacities) while he was incarcerated at Eastern
Correctional Institution (“ECI”) in Westover,
Maryland. Am. Compl. 4, 10. Defendants have filed a Motion to
Dismiss or, in the Alternative, for Summary Judgment. ECF No.
27. Mr. Thompson filed a belated Opposition and Cross-Motion
for Summary Judgment on February 20, 2018, ECF No. 37, more
than six months after Defendants filed their Motion. As the
Fourth Circuit's preference is to decide cases on the
merits, see United States v. Shaffer Equip. Co., 11
F.3d 450, 462 (4th Cir. 1993), I have considered Mr.
Thompson's Opposition despite it being untimely. A
hearing is unnecessary. See Loc. R. 105.6. There is
no genuine dispute of material fact, and Defendants are
entitled to judgment as a matter of law. Defendants'
motion, construed as a motion for summary judgment, will be
granted and Mr. Thompson's motion for summary judgment
will be denied.
of Review and Evidentiary Record
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see
also Baldwin v. City of Greensboro, 714 F.3d 828, 833
(4th Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585-87 & n.10 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a
motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). Instead, the
evidentiary materials submitted must show facts from which
the finder of fact reasonably could find for the party
opposing summary judgment. Id. A
“genuine” dispute of material fact is one where
the conflicting evidence creates “fair doubt”;
wholly speculative assertions do not create “fair
doubt.” Cox v. Cty. of Prince William, 249
F.3d 295, 299 (4th Cir. 2001); see also Miskin v. Baxter
Healthcare Corp., 107 F.Supp.2d 669, 671 (D. Md. 1999).
The substantive law governing the case determines what is
material. See Hooven-Lewis v. Caldera, 249 F.3d 259,
265 (4th Cir. 2001). A fact that is not of consequence to the
case, or is not relevant in light of the governing law, is
not material. Id.; see also Fed. R. Evid.
401 (defining relevance). “In ruling on a motion for
summary judgment, this Court reviews the facts and all
reasonable inferences in the light most favorable to the
nonmoving party.” Downing v. Balt. City Bd. of Sch.
Comm'rs, No. RDB 12-1047, 2015 WL 1186430, at *1 (D.
Md. Mar. 13, 2015) (citing Scott v. Harris, 550 U.S.
372, 378 (2007)).
is no genuine dispute of material fact if the nonmoving party
fails to make a sufficient showing on an essential element of
his case as to which he would have the burden of proof.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). Therefore, on those issues for which the nonmoving
party has the burden of proof, it is his responsibility to
confront the summary judgment motion with an affidavit that
“set[s] out facts that would be admissible in
evidence” or other similar facts that could be
“presented in a form that would be admissible in
evidence” showing that there is a genuine issue for
trial. Fed.R.Civ.P. 56(c)(2), (4); see also Ridgell,
2012 WL 707008, at *7; Laughlin, 149 F.2d at 260-61.
have attached to their motion an extensive amount of evidence
to include verified administrative and investigative records,
Admin. R., ECF No. 27-2; IID Report, ECF No. 27-3, and eight
sworn declarations from the officers involved in the alleged
incidents, Mitchell Decl., ECF No. 27-4; Richardson Decl.,
ECF No. 27-5; Dykes Decl., ECF No. 27-6; Santos Decl., ECF
No. 27-7; Arvey Decl., ECF No. 27-8; Butler Decl., ECF No.
27-9; Kiser Decl., ECF No. 27-10; Elliott Decl., ECF No.
27-11. In contrast, in his opposition and cross-motion for
summary judgment, Mr. Thompson relies on his unverified
complaint, excerpts from Defendants' exhibits, ECF Nos.
37-2, 37-3, 37-4, 37-5, 37-6, and a declaration from Mr.
Steven Tarpley regarding possible video evidence of the
incidents,  ECF No. 37-7. Because Plaintiff's
Complaint is not verified, its factual assertions may not be
considered in support of his summary judgment motion, or in
opposition to Defendants' motion. See Williams v.
Griffin, 952 F.2d 820, 823 (4th Cir. 1991); Fed.R.Civ.P.
56(c)(1)(A); see also Abdelnaby v. Durham D & M,
LLC, No. GLR-14-3905, 2017 WL 3725500, at *4 (D. Md.
Aug. 29, 2017) (awarding summary judgment for the defendants,
because the plaintiff could not “create a genuine
dispute of material fact ‘through mere speculation,
'” and “[t]hus, the Court [wa]s left with a
record that [wa]s bereft of evidence supporting any of
Abdelnaby's arguments”) (quoting Beale v.
Hardy, 769, F.2d 213, 214 (4th Cir. 1985)).
30, 2015, when Mr. Thompson refused to comply with an order
for a pat down search, Officer Mitchell ordered him to leave
the recreation yard and to return to his housing unit.
Mitchell Decl. ¶¶ 6; see Am. Compl. 1. He
did. Mitchell Decl. ¶¶ 5-6; see Am. Compl.
1. Upon arriving at his housing unit, Mr. Thompson attempted
to go to the “day room, ” Am. Compl. 1, and
refused Officer Richardson's order for him to return to
his cell, id.; Richardson Decl. ¶¶ 5-6.
Mr. Thompson then told Officer Richardson that he wanted to
speak to the officer in charge of the housing unit.
Richardson Decl. ¶ 7; Am. Compl. 4. Officers Dykes and
Santos, who were present, took Mr. Thompson in custody.
Richardson Decl. ¶ 8; Am. Compl. 5 (stating that Officer
“Dykes pulled him towards the clerks [sic]
Thompson then alleges that as Officer Dykes “was
pulling [him, he] started to lose [his] footing so the
Plaintiff tried to brace himself to gather his
footing.” Am. Compl. 5. According to Mr. Thompson,
Officer Dykes “thought [Mr. Thompson] was being
noncompliant and he slammed [Mr. Thompson] against the door
and then told [him] to sit down . . . .” Admin. R. 73
(emphasis added). Plaintiff alleges that Officer Dykes
“slammed the plaintiff[']s face into the
clerk['s] office door and used his forearm the [sic] pin
plaintiff[']s head into the door.” Am. Compl. 5.
Officer Dykes denies using any force against Mr. Thompson.
Dykes Decl. ¶ 8.
Mr. Thompson refused to return to his cell in Housing Unit 3,
Officer Santos began escorting him to Housing Unit 4 (the
disciplinary segregation unit). Am. Compl. 5-6; Santos Decl.
¶ 4. Officer Santos stated that Mr. Thompson then
“began yelling ‘I'm not going anywhere'
and ‘You can't do this.'” Santos Decl.
¶ 5. As Officer Santos and Mr. Thompson headed to the
doorway, Officer Arvey held the door open. Id.; Am.
Compl. 6. Officer Santos stated that Mr. Thompson lunged at
Officer Arvey while calling her a “bitch, ” and
in order to regain control, he pulled Mr. Thompson away and
placed him against the wall. Santos Decl. ¶¶ 6-7.
Mr. Thompson admits that he said “fuck you bitch”
to Officer Arvey and alleges that then,
[w]ithout warning, defendant Santos slammed Plaintiff face
into the wall and said “What did you call her.”
And then proceeded to slam him to the ground causing
plaintiff to lose consciousness immediately. When Plaintiff
was finally able to get his full berrings [sic] back and
understand what was going on, he was being escorted to
Am. Compl. 6. According to Officer Santos, Mr. Thompson
continued to make threats while on the ground and told
Officer Santos “he would beat [Officer Santos's]
ass and told [Officer Santos] to take his cuffs off and see
if [Officer Santos] was tuff [sic].” Notice of Inmate
Rule Violation, Admin. R. 32. At this point, a “signal
13 call” was broadcast over the ECI radio frequency.
See Mitchell Decl. ¶ 9; Dykes Decl. ¶ 6;
Santos Decl. ¶ 8; Butler Decl. ¶ 4. A signal 13
call means that “staff is under imminent threat and/or
assault.” Kiser Decl. ¶ 4; see also
Santos Decl. ¶ 8; Butler Decl. ¶ 4.
Captain Kiser and Officers Mitchell, Dykes, and Butler
responded to the call. See Kiser Decl. ¶¶
4-5; Santos Decl. ¶ 8; Butler Decl. ¶ 4.
Eric Kiser stated that he “observed COII Santos on the
ground with Mr. Thompson, ” and that he ordered Officer
Santos to report to medical after instructing Officers Butler
and Mitchell to take custody of Mr. Thompson. Kiser Decl.
¶ 5. He also stated that he “gave several direct
orders to Mr. Thompson to stop resisting and comply. Mr.
Thompson continuously refused to comply. [He] instructed COII
Chase Dykes to retrieve leg irons from Housing Unit 3 and
place them on Mr. Thompson.” Id. ¶ 6.
Susan Johnson then arrived with a wheelchair and escorted Mr.
Thompson to Housing Unit 4 where she conducted a medical
evaluation. Id. ¶ 7. Nurse Johnson's
medical notes reflect that Mr. Thompson had an abrasion to
his cheek, was bleeding minimally, and had a small contusion
on his forehead. Admin. R. 3. The administrative record
indicates that when Nurse Johnson arrived, Mr. Thompson's
“breathing was normal and not labored but he was not
responding to voice commands.” Id. at 2;
see also id. at 16 (“Thompson would not
respond to voice nor obey commands from medical
staff.”); IID Report 7 (Nurse Johnsons “noted
that his breathing was easy and unlabored. He refused to
respond to her voice or obey commands.”). He was then
transported in the wheelchair to West Dispensary where the
medical department ...