United States District Court, D. Maryland
Catherine C. Blake United States District Judge
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),  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
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. 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.
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.
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.
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.
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)" 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.
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
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.
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.
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.