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Perry v. Barnes

United States District Court, D. Maryland

March 5, 2019

THOMAS BARNES, et al., Defendants



         In this 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. 40.[1] 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.


         In 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.[2] 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.

         Perry 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.

         Perry 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.” Id.

         Perry 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.

         Sergeant 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.

         Standard of Review

         Defendants 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.” Fed.R.Civ.P. 56(d).

         Here, 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).

         Federal 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, ...

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