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Moore v. Karani

United States District Court, D. Maryland

January 10, 2019

RICHARD MOORE, Prisoner Identification No. 334644, Plaintiff,
v.
OFFICER HERBERT KARANI and OFFICER KOKOU OKUI, Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE.

         Plaintiff Richard Moore, an inmate presently confined at North Branch Correctional Institution ("NBCI") in Cumberland, Maryland, has filed this civil rights action alleging that Defendants failed to protect him from a physical and sexual assault in September 2015 by another inmate while he was housed at Jessup Correctional Institution ("JCI") in Jessup, Maryland. Pending before the Court are two motions. Defendants Herbert Karani and Kokou Okui, correctional officers at JCI, have filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. Moore has also filed a Motion for Summary Judgment, which is opposed by Defendants. No hearing is necessary to resolve the motions. See D. Md. Local R. 105.6. For the reasons set forth below, Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment is GRANTED. Moore's Motion for Summary Judgment is DENIED.

         BACKGROUND

         The core factual allegations are set forth in the Court's August 23, 2017 Memorandum Opinion granting the Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, filed by prior Defendants former Warden John Wolfe, Sergeant Jordan, Major Ford, and Officer Bah, and are incorporated by reference here. Moore v. Jordan, No. 16-1741, 2017 WL 3671167, at *1-3 (D. Md. Aug. 23, 2017). The following additional facts are specifically relevant to the pending motions.

         On August 30, 2014, Moore was housed in administrative segregation awaiting transfer to protective custody. Another inmate, Shawn Nolan, was placed in his cell over the objection of Moore, who believed he had a right to single cell because he was to be transferred to protective custody. Nolan had recently been transferred from Western Correctional Institution where, according to Moore, Nolan had been on suicide watch. As soon as he arrived in the cell, Nolan complained repeatedly about not receiving his psychotropic medications. On September 1, 2014 at approximately 4:00 p.m., Nolan told Officer Okui that he "really needed his medication because he was having 'panic attacks' and would develop 'suicidal thoughts'" if they were not received soon. Moore Administrative Remedy Procedure Req., Defs.' First Mot. Summ. J. Ex. 4 at 29, ECF No. 21-5. Officer Okui went off to investigate the matter and returned to assure Nolan that he would receive his medication later that day. Approximately three hours later, a nurse delivered the medication to Nolan, who was nevertheless dissatisfied. Nolan then became verbally abusive to Moore, and his behavior escalated into a physical assault, including swinging at him and pinching and bruising his arms. Nolan later demanded that Moore perform oral sex on Nolan, or he would otherwise harm him. After first refusing, Moore complied with the demand. Nolan ejaculated in Moore's mouth and climbed back up to his bunk to sleep. Moore spit into the toilet and rinsed his mouth out several times. Moore asserts that he did not immediately report the assault because he did not think the officers on the 3:00 p.m. to 11:00 p.m. shift would take his claim seriously.

         On the morning of September 2, 2014, Moore reported the assault. On September 3, 2014, Nolan was removed from Moore's cell. Also on September 3, the Intelligence and Investigative Division ("IID") of the Maryland Department of Public Safety and Correctional Services ("DPSCS") initiated an investigation into Moore's allegations. The investigation included witness interviews and a Sexual Assault Forensic Medical Examination of Moore, which found no evidence of Nolan's bodily fluids in Moore's mouth. After Moore signed a complaint withdrawal form stating that he did not want to press criminal charges against Nolan, the IID concluded that "criminal charges [were] not warranted at this time." IID Report, Defs.' First Mot. Summ. J. Ex. 3 at 9, ECF No. 21-4. Meanwhile Moore had filed two administrative remedy procedure grievances ("ARP") relating to the incident. Although the ARPs were denied because of the pending IID investigation, Moore appealed the denials to the Inmate Grievance Office, which referred the matter to an administrative law judge ("ALJ") for a hearing on March 11, 2015. Although the ALJ rejected Moore's claim that the transfer of Nolan into his cell violated prison rules because he was entitled to single cell status at the time of the incident, the ALJ found that Moore had been a credible witness and that:

[Moore] has produced credible evidence, not refuted by the DOC, that Nolan was receiving psychotropic medication, which for some reason was delayed on September 1, 2014; that Noland had expressed suicidal ideation to the Tier Officer; that Nolan behaved erratically, alternating between aggression and crying; and that Nolan demanded that [Moore] perform a sexual act upon him. [Moore] testified, and I believed him, that he acceded to Nolan's demand out of fear for his personal safety. A reasonable inference is that [Moore's] compliance reduced Nolan's agitation and aggressiveness, perhaps giving Nolan's medications time to have an effect. It is undisputed that the DOC removed Nolan from [Moore's] cell by noon on September 3, 2014.
Regardless, I find that, by placing Nolan, as opposed to some other inmate, in [Moore's] cell, the DOC placed [Moore] at risk of harm by an inmate in unstable mental and psychological condition, and that risk was realized. [Moore] endured a physical attack and submitted to Nolan's sexual demands in the interest of self-preservation. For that reason, I conclude that [Moore] should be awarded the amount of $150.00. I believe that this reasonably compensates [Moore] for his physical pain and for the unwelcome sexual contact.

ALJ Op., Defs.' First Mot. Summ. J. Ex. 4 at 17, ECF No. 21-5. The Secretary of DPSCS affirmed the ALJ's proposed decision and order, including the determination that Moore should receive $150 in damages.

         In its prior Memorandum Opinion, this Court granted Defendants' first Motion to Dismiss or, in the Alternative, for Summary Judgment ("the First Motion"), ECF No. 21, on the grounds that Warden John Wolfe and Major Ford had no involvement in the alleged sexual assault either at all or until after it had occurred, and that Sergeant Jordan and Officer Bah did not have the subjective knowledge of the safety risk that Nolan posed to Moore, as is required under the Eighth Amendment. Moore, 2017 WL 3671167, at *5-6. The only issue remaining in this case is Moore's claim that the tier officer at JO, originally identified in the Complaint as "Officer Olacre," violated Moore's Eighth Amendment rights because he was aware that Nolan "intended to kill himself and cause bodily harm if... Nolan didn't receive his medication," yet failed to remove Nolan from Moore's cell before the assault. Compl. 4, ECF No. 1. Because Moore misidentified the tier officer, no direct response was provided for this allegation in the First Motion. After the Court directed counsel for Defendants to provide the correct name or names of the officers assigned as tier officers during the relevant time period, Defendants Karani and Okui were identified from personnel logs as the officers assigned to Moore's tier on September 1, 2014. Moore now contends that Okui is the "Officer Olacre" referenced in the Complaint.

         In declarations submitted in support of the pending Motion, Okui and Karani have each asserted that he does not remember Moore or Nolan, that he does not recall the September 1, 2014 incident, and that he does not remember either inmate advising that Nolan was suicidal. Both officers further state that had Nolan reported that he was suicidal, he would have immediately arranged for medical or psychological staff to examine him, and that if Moore had reported that he had been threatened by Nolan or was otherwise in danger from Nolan, he would have removed Nolan from the cell immediately.

         Although Moore received notification by the Court that Defendants had moved for summary judgment and he entitled his responsive filing as a Motion for Summary Judgment, he did not submit an affidavit, declaration, or any other evidence. In his Motion, however, Moore states that Nolan told Okui that he was becoming "suicidal" and having "panic attacks" because he was not receiving his medications. PL's Mot. Summ. J. 1, ECF No. 55. He further states that Okui listened to the threats, investigated the "medication situation" and returned to tell Nolan that he would receive his medications soon. Id. Moore then asserts that "When the meds arrived, Inmate Nolan proclaimed that they were the wrong kind, Inmate Nolan zapped out screaming and banging his head on the cell door. Ofc. Okui, observed and just left, no action. Inmate Nolan proceeded to viciously physically assault and sexually assault the Plaintiff." Id. Moore also claims that during the administrative hearing on his claim, the institutional representative conceded that these facts were true and thus requests that the court consider the ALJ's findings.

         DISCUSSION

         In their Motion, Defendants seek dismissal or summary judgment in their favor on the grounds that the Complaint fails to state a plausible claim against Defendants, there are no genuine disputes of material fact such that Defendants are entitled to judgment as a matter of law, and Defendants are entitled to qualified immunity. In his Motion, Moore seeks summary judgment in his favor on his ...


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