United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
before the Court is pro se Plaintiff Eddie
Murphy's Complaint filed pursuant to 42 U.S.C.
§1983. ECF No. 1. Murphy's allegations are premised
on events that occurred when he was an inmate at North Branch
Correctional Institution ("NBCI") in Cumberland,
Maryland. Id. Murphy alleges, among other
complaints, that excessive force was used against him, that
he was not properly treated for the effects of pepper spray,
and that NBCI employees fabricated rule violations against
him. Id. Defendant Krissi Cortez, R.N., has filed a
Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment, ECF No. 15, in response to which Murphy has filed
an opposition, ECF No. 19. Defendants, former CO. II
Christopher Ortt,  CO. II Craig Peters, Lt. William Gillum,
and CO. II Nicholas Soltes (collectively, the "State
Defendants") have filed a Motion to Dismiss or, in the
Alternative, Mo:ion for Summary Judgment, ECF No. 31, which
case is ready for adjudication. No. hearing is required.
See Local Rule 105.6 (D. Md. 2016). For reasons to
follow, Krissi Cortez's Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment, ECF No. 15, is
granted. The State Defendants' Motion to Dismiss or, in
the Alternative, Motion for Summary Judgment, ECF No. 31, is
granted-in-part and denied-in-part.
alleges that on October 2, 2013, at approximately 10:00 a.m.,
Officer Ortt assaulted him by slamming Murphy's arm and
hand in the tray slot of his cell door, and that he was
denied immediate medical treatment. ECF No. 1 at 2-3. Murphy
claims that Ortt wrote a "false report" to
"cover it up." Id. at 3. Murphy was issued
a Notice of Rule Violation for committing assault or battery
on staff (Rule 101) and demonstrating disrespect or use of
vulgar language (Rule 405). ECF No. 1-1. Ortt denies having
assaulted Murphy and states that, in fact, he was assaulted
by Murphy, who spit on his arm as Ortt gave him his food tray
through the slot of the cell door. ECF No. 31-6 ¶ 4.
Ortt states that Murphy's arm and hand had cleared the
slot when he closed it. Id.
further alleges that at approximately 11:45 a.m. that
morning, Ortt returned to Murphy's cell. While Murphy was
"attending lo his lacerations" from having his hand
slammed in the door, Ortt allegedly opened the cell door slot
and sprayed him with pepper spray for "about 10
seconds[, ] an excessive amount." ECF No. 1 at 3. Murphy
asserts that Ortt wrote another "false Notice of Inmate
Rule Violation" to justify his actions. Id.
Ortt refutes this account, stating that Murphy was using the
sink and toilet in his cell to flood the tier and that Murphy
also was observed attempting to break a fire sprinkler in his
cell. ECF No. 31 -6 ¶ 5. Ortt states that he disbursed a
single burst of pepper spray into the cell to subdue Murphy
and prevent further damage. Murphy then complied with
Ortt's order to come to the cell door slot to be
handcuffed, and was escorted to the medical room. ECF No.
31-6 ¶¶ 5-6.
claims that Ortt and the other Defendants know that pepper
spray symptoms can last forty-five minutes if left untreated.
Murphy alleges that Ortt and Officer Soltas refused to offer
him first aid and left him in his cell for four to five
minutes. ECF No. 1 at 3. Murphy alleges that he tried to
splash water into his eyes, but that the sink in the cell had
been turned off by Defendants. Murphy states that his
"only recourse was to place his head into the toilet to
stop the burning to his eyes, body, and face, " which
caused his eyes to hurt for several days and his skin to
was eventually taken to the medical room where he was
examined by Nurse Cortez. He claims that he could barely see,
complained of pain, and was soaked in pepper spray.
Id. at 3-4, 8. He claims that Cortez failed to flush
his eyes with water, to wipe the pepper spray from his skin,
or to ask the correctional officers whether he would receive
a decontamination shower. Id. at 3-4. Murphy claims
that he was "forced back" into his cell by
correctional officers upon the orders of Lt. Gillum and Lt.
Wilt. Murphy claims that he was not provided a
decontamination shower and states that he again used water in
the toilet to wash off the pepper spray. Id. at 4.
further claims that on an unstated date his cellmate blocked
the cell window and assaulted him. When Officer Peters and
other unknown officers arrived at the cell, they found him
beaten and lying on the floor. Murphy alleges that an officer
used a "stun shield" on Murphy that "zapped"
his already burning skin. Id. at 4. Murphy maintains
that even if Peters was not the officer who used the stun
shield, then Peters acted improperly by failing to stop its
use. Id. Officer Peters states that on a date he
cannot recall, the window of Murphy's cell was indeed
covered. ECF No. 31-14 ¶ 4. Peters, with three other
officers, entered the cell to check on him and found Murphy
unresponsive on the cell floor. Id. Peters states
that they walked over to Murphy, lightly tapped him on the
shoulder, and that Murphy demonstrated verbally and
physically that he was conscious and in no distress. The
staff exited the cell without incident. Peters denies that on
that occasion Murphy was "zapped, " but states that
the officers had a stun shield with them for their safety
when they entered the cell. ECF No. 31-14 ¶ 6.
states that the excessive force that the officers allegedly
used against him was the result of retaliation by Defendant
Ortt against him for filing Murphy v. Rounds, Civil
Action No. WDQ-13-2480. ECF No. 1 ¶ 10. Murphy alleges
that Ortt retaliated against him "three times with
authorization from his supervisor Lt. Wilt."
Murphy alleges that NBCI Administrative Remedy Coordinator
.Tared Zais and correctional staff use conspiratorial
practices to violate his rights under the First Amendment,
including refusing to provide him with necessary documents
and receipts used in processing Administrative Remedy
Procedure (ARP) requests, fraudulently acting in the
Warden's capacity to dismiss ARP requests, and reporting
"false" information in the course of responding to
an ARP request. ECF No. 1 at 5-6.
Complaint, Murphy seeks compensatory damages in the amount of
$100, 000 and punitive damages in the amount of $200, 000
against each defendant. ECF No. 1 at 8.
STANDARD OF REVIEW
motions are styled as Motions to Dismiss, or in the
Alternative, for Summary Judgment. If the Court considers
materials outside the pleadings, as the Court does here, the
Court must treat a motion to dismiss as one for summary
judgment. Fed.R.Civ.P. 12(d). When the Court treats a motion
to dismiss as a motion for summary judgment, "[a]ll
parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion."
Id. When the moving party styles its motion as a
"Motion to Dismiss, or in the Alternative, for Summary
Judgment, " as is the case here, and attaches additional
materials to its motion, the nonmoving party is, of course,
aware that materials outside the pleadings are before the
Court, and the Ccurt can treat the motion as one for summary
judgment. See Laughlin v. Metropolitan Wash. Airports
Auth. 149 F.3d253, 260-61 (4th Cir. 1998). Further, the
Court is not prohibited from granting a motion for summary
judgment before the commencement of discovery. See
Fed. R. Civ. P. 56(a) (stating that the court "shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact" without
distinguishing pre-or post-discovery).
judgment is appropriate if "materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations ...,
admissions, interrogatory answers, or other materials, "
Fed.R.Civ.P. 56(c), show 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);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party moving for summary judgment bears the
burden of demonstrating that no genuine dispute exists as to
material facts. Pulliam Inv. Co. v. Cameo Props.,
810 F.2d 1282, 1286 (4th Cir. 1987). If the moving party
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify specific facts showing that there
is a genuine issue for trial. See Celotex, 477 U.S.
at 322-23. A material fact is one that "might affect the
outcome of the suit under the governing law."
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183
(4th Cir. 2001) (quoting Anderson v. Liberty Lobby.
Inc., 477 U.S. 242, 248 (1986)). A dispute of material
fact is only "genuine" if sufficient evidence
favoring the nonmoving party exists for the trier of fact to
return a verdict for that party. Anderson, 477 U.S.
at 248. However, the nonmoving party "cannot create a
genuine issue of material fact through mere speculation or
the building of one inference upon another." Beale
v. Hardy, 769 F.2d 213, 214 (4th Cir. 1986). When ruling
on a motion for summary judgment, "[t]he evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor." Anderson, 477
U.S. at 255.
Court is mindful that Murphy is a pro se litigant. A
federal court must liberally construe pro se
pleadings to allow the development of potentially meritorious
cases. See Erickson v. Pardus, 551 U.S. 89, 94
(2007); Cruz v. Beto, 405 U.S. 319 (1972). Liberal
construction does not mean, however, that this Court can
ignore a clear failure in the pleadings to allege facts
sufficient to state a claim. See Weller v. Department of
Social Services, 901 F.2d 387, 391 (4th Cir. 1990). A
court cannot assume a genuine issue of material fact where
none exists. Fed.R.Civ.P. 56(c).
Claim Against Krissi Cortez
faults Nurse Cortez for failing to flush his eyes with water,
wipe the pepper spray from his skin, or ask the correctional
officers whether he would receive a decontamination shower,
although he "complained of pain and was obviously ...