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Johnson v. Morgan

United States District Court, D. Maryland

November 13, 2018

RODERICK JOHNSON, Plaintiff
v.
DENISE MORGAN, Warden, S., HARE, Defendants

          MEMORANDUM

          Catherine C. Blake United States District Judge

         Plaintiff Roderick Johnson, an inmate committed to the custody of the Maryland Department of Public Safety and Correctional Services and confined at all times relevant to Roxbury Correctional Institution (RCI), [1] filed this civil rights complaint concerning his claim that he was attacked by a group of inmates. ECF 1; ECF 5. Defendants move to dismiss the complaint or in the alternative for summary judgment in their favor. ECF 21. Plaintiff opposes the motion. ECF 24. In addition, plaintiff moves for default judgment, ECF 23, and for appointment of counsel, ECF 25; ECF 29. No hearing is necessary to resolve the matters pending before the court. See Local Rule 105.6. For the reasons stated below, defendants' motion, construed as one for summary judgment, shall be granted and plaintiffs motions shall be denied.

         Background

         Plaintiff states that while he was incarcerated at RCI he was assigned to housing unit 2, D-tier, cell 30. On May 21, 2016, he awoke to three masked inmates in his cell stabbing him multiple times.[2] He states he believes the assault took place around 10:00 a.m., which is when inmates leave the housing unit for lunch. He claims the assault took approximately 30 minutes and "somehow the cell door open [sic] up and the three mask [sic] inmates exited the cell." ECF 5 at p. 2.

         After his assailants left, plaintiffs cellmate returned to the cell, observed plaintiff injured and bleeding, and began yelling for a correctional officer to come to the cell for assistance. Plaintiff was sent to an outside hospital where he was treated for multiple stab wounds to his face, behind his right ear, and his back: He states he received four stitches under his left eye and three behind his right ear. As a result of the attack, plaintiff claims he has nerve damage in his upper back. ECF 5 at pp. 2-3.

         Plaintiff alleges that the assault occurred because the tier officer, defendant S. Hare, was not at his post at the time doors were opened for inmates to leave for lunch. He asserts that his assailants took advantage of Hare's absence to run into his cell and stab him. He further alleges that at any time there is mass movement on the housing unit, such as when inmates are exiting for a meal, an officer is supposed to be on the tier to secure the area. According to plaintiff, this was not done on the day he was assaulted. Plaintiff concludes that Hare's failure to properly discharge his duties violated his Eighth Amendment right to remain free from cruel and unusual punishment; with respect to defendant Warden Denise Morgan, plaintiff asserts that she is responsible for the entire institution and for the welfare of all inmates confined at RCI. ECF 5 at pp. 1, 3. As relief, he seeks $250, 000 in compensatory damages from each defendant. ECF 5 at p. 3.

         Defendants do not deny that plaintiff was assaulted as described, but state that there is no basis for plaintiffs claims against Morgan or Hare. ECF 21. In his declaration under oath, Hare states that on May 21, 2017, at approximately 10:00 a.m., he was posted as a "housing unit two 'D'-wing officer" and in that capacity assisted with movement of inmates from the housing unit for "feed-up," ECF 21-3 at ¶ 3. He explains that those duties consisted of "initially monitoring inmate movement from the left side of the tier, through the metal detector and to the dining hall." Id. After those inmates were moved out, the right side of the tier was opened and the process was repeated. Hare states that he was posted at the metal detector during the process of moving inmates out of the housing unit. When the inmates returned after their meal, both sides of the tier had the doors opened so that inmates could return to their cells. Id. As inmates returned to their cells, the doors to the cells were closed and Hare moved down the tier to count the inmates. Id. Hare states that as he approached plaintiffs cell, he saw plaintiff through the window standing in the middle of the cell with blood on his head and face. Id. Hare radioed the control area to open the cell door to plaintiffs cell and advised them of plaintiff s condition. Id. The officers in the control center then locked down the entire tier and Hare cuffed plaintiff and escorted him to the medical unit. Id.

         In the aftermath of the assault on plaintiff, prison officials conducted an investigation and prepared a serious incident report. Lt. Mark Cutter is noted as the investigating Lieutenant for the serious incident report. ECF 21-2 at p. 4. Cutter interviewed plaintiff and stated in his report that the assault was plaintiffs "way out of the STG (BGF)"[3] and that plaintiff indicated, "he was walking away from the organization and this was his price to pay." Id. at p. 5. Cutter notes that plaintiff "is a validated member of the STG (BGF)." Id. Plaintiff also told Cutter that "he was asleep in his cell when he was jumped by 5 to 6 inmates." Id. Although officers went from cell to cell inspecting each inmate's hands and face for evidence that they had been in a physical altercation, no one was identified as a possible suspect in the assault. Id. Additionally, no weapons were recovered from the tier, nor did anyone admit that they had witnessed the assault. Id. Plaintiffs cellmate, Charles-Green, was moved to administrative segregation after the assault because he was believed to be either a witness or a perpetrator of the assault. Id. at p. 11. Plaintiff did not provide a written statement for purposes of the investigation into his attack. Id. at p. 14.

         In addition to the serious incident report; the assault was investigated by the Internal Investigations Division. ECF 21-4. Detective Mills was assigned to the case. Id. at p. 2. In his report, Mills indicated that Captain Ralph Bowman from RCI informed him that Hare was called over to plaintiffs cell where plaintiff was found with visible wounds to his face. Id. at p. 6. Mills printed information regarding plaintiff who he noted was a validated member of BGF. Id. Mills spoke with Cutter regarding his investigation and: Cutter relayed what plaintiff had told him: that the assault was his way of getting out of the BGF. Id. Mills interviewed plaintiff at RCI in the medical room of housing unit 5 and plaintiff told Mills he had been sleeping in his cell when the doors opened and "some guys came in and started assaulting him." Id. Mills stated that when he asked if plaintiff had seen who his assailants were, he indicated that he had not. Id. When Mills asked plaintiff why he was assaulted, he reported that plaintiff told him he didn't want to talk about it and that he did not want to press charges on anyone. Id. Mills asked plaintiff if the incident was over or if there was going to be retaliation and plaintiff indicated that it was over. Id. Mills further indicated that plaintiff completed a> withdrawal form because he did not want to press charges against anyone. Id. at p. 7. Mills concluded his investigation noting there were no witnesses to the assault and that plaintiff was unwilling to cooperate with any further investigation. Id.; see also Id. at p. 19 (signed withdrawal form)..

         Plaintiff filed an administrative remedy procedure complaint (ARP) on June 3, 2016, complaining that some of his property was missing after an officer packed it up for plaintiffs move to administrative segregation after the assault. ECF 21-2 at pp. 23-31. The complaint was dismissed because plaintiff did not provide sufficient paperwork to prove he owned the items of property he claimed were missing. Id.

         Non-dispositive Motions

         Plaintiff filed a motion for default judgment on May 29, 2018, indicating that more than 20 days had passed without a response to the complaint by defendants. ECF 23. At the time the motion was filed, defendants had filed their dispositive motion. In any event, defendants were initially given 60 days to file a response and filed timely motions for extensions of time which were granted. ECF 18; ECF 19. Defendants were not in default and the motion shall be denied.

         Plaintiff also filed two motions to appoint counsel, citing his poverty and incarceration as burdens to-his ability to litigate this case. ECF 25; ECF 29. A federal district court judge's power to appoint counsel under 28 U.S.C. § 1915(e)(1) is a discretionary one, and may be considered where an indigent claimant presents "exceptional circumstances. See Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975); see also Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982). There is no absolute right to appointment of counsel; an indigent claimant must present "exceptional circumstances." Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Exceptional circumstances exist where a "pro se litigant has a colorable claim but lacks the capacity to present it." Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989) (holding that 28 U.S.C. § 1915 does not authorize compulsory appointment of counsel). Exceptional circumstances include a litigant who "is barely able to read or write," Id. at 162, or clearly "has a colorable claim but lacks the capacity to present it," Berry v. Gutierrez, 587 F.Supp.2d 717, 723 (E.D. Va. 2008) (internal citation omitted). Upon careful consideration of the motions and previous filings by plaintiff, the court finds that he has demonstrated the wherewithal to either articulate the legal and factual basis of his claims himself or secure meaningful assistance in doing so. No exceptional circumstances exist that warrant the appointment of an attorney to represent plaintiff under § 1915(e)(1); therefore, the pending motions shall be denied.

         Standard ...


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