United States District Court, D. Maryland
GREGORY D. MILLER, #442194, Plaintiff,
CO. II DUVAL JONES, CO II KELLEN KRANICH, CAPTAIN CRYSTAL HARRISON, and WARDEN PHILLIP MORGAN, Defendants.
W. Grimm, United States District Judge.
Gregory D. Miller is incarcerated at Roxbury Correctional
Institution (“RCI”) in Hagerstown, Maryland.
Notice, ECF No. 8. He filed this litigation against C.O.II
Duval Jones, C.O.II Kellen Kranich, Captain Krystal Harrison,
and Acting Warden Phillip Morgan pursuant to 42 U.S.C. §
1983 for alleged Eighth and Fourteenth Amendment violations.
In his unverified Complaint, Miller alleges that while housed
at Maryland Correctional Institution - Jessup
(“MCI-J”), Correctional Officers Jones and
Kranich used excessive force against him when he refused to
submit to a strip search. Compl. 3, ECF No. 1. Miller claims
that after this March 21, 2017 incident, he was falsely
charged with rule violations. Id. at 3-4. He further
claims that Captain Harrison and Acting Warden Morgan, the
Correctional Officers' supervisors, knew that the
Officers wrote false charges of rule violations and issued
multiple “tickets” stemming from the same
incident, which was impermissible, yet did nothing to remedy
the situation. Id. at 3-5. Miller states “Lt.
Jackson and Capt. Ross” denied him an opportunity to
pursuant criminal charges against Defendant
Jones. Id. He claims he was
“bribed” by Officer Whitaker and the hearing
officer to accept a plea agreement admitting to adjustment
charges even though he did nothing wrong. Id. at
4. He seeks money damages, an apology, and Jones's
termination from employment. Id. at. 6.
October 4, 2017, Miller filed a document titled
“Plaintiff's Motion to Supplement.” Mot.
Supp. 1, ECF No. 14. Miller alleges that Defendant Morgan
attempted to cover up the March 21, 2017 incident by
dismissing Miller's Administrative Remedy Procedure
(“ARP”) complaint on procedural grounds.
Id. Miller also claims that, in retaliation for this
lawsuit, he was identified as a security threat and
transferred to a prison further away from his family.
Id. at 3. Miller claims Department of Public Safety
and Correctional Services (“DPSCS”) policy was
violated when Harrison and Jones were permitted to submit an
additional notice of rule violation concerning the incident,
and asks for additional compensatory damages based on mental
and psychological injury. Id. These allegations will
be considered in the context of this Memorandum
is Defendants' Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment. Defs.' Mot., ECF No. 15. On
October 18, 2017, in conformity with Roseboro v.
Garrison, 528 F.2d 309, 310 (4th Cir. 1975), the Clerk
of the Court informed Miller that these Defendants filed a
dispositive motion; that he had seventeen days in which to
file a written opposition to the motion; and that if he
failed to respond, summary judgment could be entered against
him without further notice. ECF No. 18. Miller has responded.
ECF No. 20.
he has presented his allegations in a cogent manner and filed
a responsive, written opposition to Defendants'
dispositive motion, Miller has requested appointment of
counsel to assist him with this case. Pl.'s Mot. for
Appt. of Counsel 1-2, ECF No. 19. As his pleadings and
opposition demonstrate, Miller is a capable, self-represented
litigant. His request for appointment of counsel is denied,
in accordance with Miller v. Simmons, 814 F.2d 962,
966 (4th Cir. 1987) and Whisenant v. Yuam, 739 F.2d
160, 163 (4th Cir. 1984), abrogated on other grounds by
Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989).
Further, a hearing is unnecessary to resolve the issues
presented in this case. See Loc. R. 105.6 (D. Md.
2016). Similarly, Miller's assertion within his
unverified opposition that “there is a genuine dispute
of the facts, warranting discovery and denial of summary
judgement [sic] at this time, ” Pl.'s Opp'n 7,
is not sufficient to defeat review of the dispositive motion.
See Fed. R. Civ. P. 56(d) (“If a nonmovant
shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion
or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other
appropriate order.”). Defendants' motion, construed
as a motion for summary judgment, will be granted, for
reasons noted herein.
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.
“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, Civil Action 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 Declarations and verified
medical and correctional records. ECF Nos. 15-3 through ECF
No. 15-8, ECF No. 21-1. In contrast, Miller has not filed an
affidavit and his allegations are contained in an unverified
Complaint. Miller does, however, cite to three pages of the
records Defendants produced, and I have considered that
evidence. See Pl.'s Opp'n 5-6 (citing DPSCS
Recs. 34, 73, 82, ECF No. 15-3). But, because the Complaint
is not verified, its factual assertions may not be considered
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)).
provide the following factual background, which is supported
by the exhibits they attached to their motion:
Miller was housed in Maryland Correctional Institution in
Jessup, Maryland (hereinafter “MCI-J”) at the
time of the incident. On March 21, at approximately 7:30
p.m., Defendants, Correctional Officers Duval Jones and
Kellen Kranich, were conducting a “random security
round” in Housing unit G, where Gregory Miller was
housed. Exhibit 1, Declaration of Nichole Daugherty, at p.
45. The officers ordered Miller to submit to a random strip
search and was escorted out of his cell to a sanitation
closet in order to conduct the search. Id., at p.
79. He was ordered to turn over his clothing items during the
search, and Miller refused to comply. Id. According
to MCI-J's Serious Incident Report, Miller reached into
his long johns pants groin area and attempted to pull an item
out of his pants. Id. The officers gave Miller an
order to stop, which Miller refused to comply. Id.
Kranich and Jones held his arms while trying to gain
compliance, and Miller pushed both officers into the closet
wall and ended up on the floor. Id.
Once on the floor, Jones and Kranich applied handcuffs and
asked for leg irons to be brought from Hotel. Id.
C.O.II Jones sustained a cut on his left hand from bumping
into a nearby table during the struggle in the closet.
Id. Miller suffered a cut above his right eye.
Id. He was taken to the medical unit and both
Officer Jones and Miller had their injuries photographed and
treated by medical staff. Id., at 80. Miller had the
cut above his eye cleaned and treated. Exhibit 2, Wexford
Records Declaration, at p. 2. C.O.II Jones received five
stitches for the cut sustained on his hand. Exhibit 1,
Nichole Daugherty ...