United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE
civil rights action, Plaintiff Michael Perry alleges that,
when he was a pretrial detainee, Defendants Thomas Barnes,
Derrick Brown, William Bunn, Charles Giles, Charnel Hines,
Michael Moore, and John Doe failed to protect him from an
attack by other detainees and Defendants Remigius Ogbonna and
Cynthia McNeely were deliberately indifferent to his serious
medical needs that resulted from the attack. Second Am.
Compl., ECF No. 37. Defendants have moved to dismiss or,
alternatively, for summary judgment. ECF No.
Because Perry sufficiently states his claims and Defendants
are not entitled to qualified immunity, and given that Perry
has shown that he needs additional discovery to oppose a
motion for summary judgment, Defendants' motion will be
treated as a motion to dismiss and denied.
2014, following the shooting of Perry's stepbrother by
members of the Black Guerilla Family (“BGF”) gang
and Perry's agreement to cooperate with the prosecutors,
“BGF gang members targeted [Perry] for
retaliation.” Second Am. Compl. ¶ 18. Later in
2014, Perry spent time incarcerated at Baltimore Central
Booking and Intake Center (“Central Booking”) and
at the Baltimore City Detention Center (“BCDC”),
where he was “in constant danger” due to BGFs
“considerable presence and influence at the
BCDC.” Id. ¶¶ 19-20. After he was
arrested again on August 7, 2015, Perry “was a pretrial
detainee in the custody of the Maryland Department of Public
Safety and Correctional Services”
(“DPSCS”), housed in Central Booking. Second Am
Compl. ¶¶ 2, 25.
was “targeted as part of a planned attack by BGF
members” on August 29, 2015. Id. At the time,
Defendant Barnes was the Central Booking Security Chief;
Defendants Brown and Bunn were DPSCS corrections officers,
with Brown serving as the shift Commander at Central Booking
and Bunn serving as the shift supervisor at Central Booking;
Defendant Giles was a DPSCS Institutional Investigator; and
Defendants Hines and Moore were intelligence officers at
Central Booking. Id. ¶¶ 7-12, 27. Bunn
“received information from a confidential informant
that a ‘war' was going to occur between BGF members
and other detainees and that Mr. Perry was one of the
detainees who would be targeted by BGF.” Id.
¶ 27. He “contacted the Intelligence Division,
” id, and Giles, Moore, and Hines
investigated, after which Barnes ordered that Perry and
“four other detainees” (three of whom were BGF
members) be transferred to BCDC, id ¶ 28.
Brown, Giles, Hines, and “several escorting
officers” executed that order. Id. ¶ 28.
alleges that “Barnes, Brown, Bunn, Giles, Hines, and
Moore had actual knowledge that BGF members had planned to
fight with other detainees, including Mr. Perry, on the night
of August 29, 2015, ” Second Am. Compl. ¶ 30, and
that night, aware that Perry was targeted, these Defendants
“moved Mr. Perry to another building without ensuring
he would be protected from the BGF at the new
location.” Id. ¶ 2. Specifically, they
“housed him with the general population” in the
700 South Dorm in the Jail Industries Building at BCDC, which
“had an open floor plan, which allowed inmates to move
about with relative ease.” Id. ¶ 31.
Perry claims that, “[u]pon information and belief,
Defendants Barnes, Brown, Bunn, Giles, Hines, and Moore did
not investigate whether there were any BGF members in the 700
South dorm or whether Mr. Perry would be safe there.”
arrived at his new dorm and, within half an hour, he
“was brutally attacked by several BGF members”
who “stabbed [him] in multiple places on his head and
back, [and] punched, kicked, stomped on, and hit [him] in the
head.” Second Am. Compl. ¶ 2; see Id.
¶¶ 34-35. This caused Perry to “bleed
profusely from his head and back wounds and suffer from a
fractured nose, a contused arm, and a broken tooth.”
Id. ¶ 2; see Id. ¶¶ 34-35.
Remigius Ogbonna, who “was the Officer in Charge of the
Jail Industries building when Mr. Perry was attacked, ”
and other corrections officers responded to the scene, and
two corrections officers “escorted Mr. Perry to
medical.” Second Am. Compl. ¶¶ 13, 37. Only
one registered nurse was on site; no doctors were.
Id. ¶ 38. The nurse “attempted to clean
Mr. Perry's wounds and stop the bleeding” but
“did not have the necessary supplies to treat him or to
evaluate his head injury, ” so she “informed the
corrections officers that they needed to call 911 and get Mr.
Perry to the hospital immediately”; she also had a
physician's assistant come evaluate Perry. Id.
The physician's assistant “recommended that Mr.
Perry receive a CT scan.” Id.
Despite the recommendation from a medical professional that
they needed to call 911, and despite knowing that Mr. Perry
had suffered a head injury that required a CT scan, was
bleeding, and was in considerable pain, BCDC personnel -
including, upon information and belief, Defendants Remigius
Ogbonna and Cynthia McNeely [a DPSCS corrections officer] -
did not call an ambulance. Instead, they interrogated Mr.
Perry about the identities of his attackers for almost two
hours. Ogbonna took pictures of Mr. Perry's injuries.
Id. ¶ 39; see Id. ¶ 14.
style their dispositive motion as a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) or, in the
alternative, for summary judgment under Rule 56. A motion
styled in this manner implicates the Court's discretion
under Rule 12(d) of the Federal Rules of Civil Procedure.
See Kensington Vol. Fire Dep't, Inc. v. Montgomery
Cty., 788 F.Supp.2d 431, 436-37 (D. Md. 2011).
Generally, the Court may treat a motion to dismiss as a
motion for summary judgment pursuant to Rule 12(d), if it
gives “[a]ll parties . . . a reasonable opportunity to
present all the material that is pertinent to the
motion.” Fed.R.Civ.P. 12(d). But, if the party opposing
a summary judgment motion “shows by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may . .
. defer considering the motion or deny it.”
Defendants filed Chapter 10, Medical Autonomy, of the DPSCS
Office of Clinical Services/Inmate Health Administrative
Manual as Exhibit 1 to their motion, ECF No. 40-3, to
support their argument that Defendants Ogbonna and McNeely
had no responsibility for Perry's medical needs,
see Defs.' Mem. 14, 17. Perry submits the
Declaration of his counsel, Dia Rasinariu, who states that
“[t]here has been no discovery into Baltimore City
Detention Center's policies for responding to medical
emergencies, ” and asserts that “[s]uch discovery
would allow Plaintiff to determine how or if the DPSCS
Office of Clinical Services/Inmate Health Administrative
Manual Chapter 10 Medical Autonomy applies to his
situation.” Rasinariu Decl. ¶ 8, ECF No. 42-1. She
also notes that “Plaintiff has not yet had the
opportunity to serve interrogatories upon or depose
Defendants Ogbonna and McNeely” or the nurse or
physician's assistant who saw Perry after the incident
“to determine whether Defendants Ogbonna and McNeely
followed the relevant policies in their response to
Plaintiff's medical emergency.” Id. ¶
9. In light of these assertions, I will only consider
Defendants' motion as a motion to dismiss. See
Fed. R. Civ. P. 56(d).
Rule of Civil Procedure 12(b)(6) provides for “the
dismissal of a complaint if it fails to state a claim upon
which relief can be granted.” Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md.
Dec. 13, 2012). This rule's purpose “is to test the
sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Id. (quoting
Presley v. City of Charlottesville, 464 F.3d 480,
483 (4th Cir. 2006)). To that end, the Court bears in mind
the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), when considering a motion to
dismiss pursuant to Rule 12(b)(6). Specifically, a complaint
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim
for relief, ” as “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice, ” Iqbal, 556 U.S.
at 678-79. See Velencia, ...