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Green v. Bankard

United States District Court, D. Maryland

July 12, 2019

TERRY GREEN, # 368377, #344-1420, Plaintiff



         Self-represented Plaintiff Terry Green, a State prisoner incarcerated at Eastern Correctional Institution in Westover, Maryland ("ECI"), filed an unverified[2] Complaint pursuant to 42 U.S.C. § 1983. Green seeks money damages[3] and the prosecution of Correctional Officer Richard Bankard, [4] whom he claims violated his Eighth Amendment rights on the evening of July 6, 2018 by punching and choking Green unconscious without provocation while escorting Green from the tier.[5] ECF No. l, p. 2. Now pending before the Court is Defendant's Motion to Dismiss for Failure to State a Claim or in the Alternative, Motion for Summary Judgment (ECF No. 10) and Green's opposition response and cross-motion for summary judgment. ECF Nos. 15 and 16.[6] A non-dispositive motion docketed as a Supplement to the Complaint (ECF No. 17) and construed as a request for appointment of counsel, is pending review. For the reasons stated below, Green's request for appointment of counsel is DENIED, [7] as is Green's cross-motion for summary judgment, and Defendant's dispositive motion, construed as a motion for summary judgment, [8] IS GRANTED.


         A. Plaintiff Green's Allegations

         Plaintiff Green claims that around 7:20 p.m. on July 6, 2018, while handcuffed behind his back and under escort, he was assaulted by Defendant Bankard, merely because Green walked with a "limp" caused by previous health problems. ECF No. 1, p. 2. Green states other officers joined in, choking and punching him until he lost consciousness. Id.

         B. Defendant's Assertions

         On July 6, 2018, Defendant Bankard was assigned as a tier officer on Housing Unit # 4, A tier ("HU4A") during the three-to-eleven shift. ECF No. 10-2, Records Declaration of Susan Shumaker, p. 19. A video taken of the tier shows that at 7:30 p.m., Bankard escorted Plaintiff from his cell toward the recreation hall on the way to the shower area.[9] ECF No. 10-3, Video Footage of Incident at 1930:44-47. In his statement of affirmation concerning the incident, [10] Bankard states that Green became verbally abusive, yelling "I want to kill all these ... police!"[11] ECF No. 10-2, p. 7. Bankard told Green that he lost his recreation and turned Green around to return to his cell. ECF No. 10-3 at 1930:48. As they approached the cell, Green pulled away from Bankard. Id. at 1930:48-52. When Bankard turned Green towards the open cell, Green pushed into Bankard, prompting Bankard to use his left hand on Green's shoulder to gain control. Id. at 1930:59-1931:00-10. Bankard affirmed Green again pulled away, and Bankard took him to the floor. ECF No. 10-2, p. 7. Bankard affirmed he did not throw a punch or place his arm around Green's neck. Id. As additional officers arrived to carry Green from the tier to the medical department, Bankard stepped away. ECF No. 10-3, 1931:15-1931:456. Green was promptly examined in the medical department and found to have no injury caused as a result of the incident.[12] ECF No. 10-2, pp. 22, 32. The officers involved with the incident completed a use of force report ECF No. 10-2, pp. 21-32. The investigator assigned to review the use of force incident determined that Bankard used the appropriate amount of force to control Green and acted in compliance with the use of force manual. Id., pp. 22, 24.

         Green filed an Administrative Remedy Procedure ("ARP") grievance concerning the incident on July 11, 2018, claiming that Bankard assaulted him by choking him. ECF No. 10-4, pp. 30-31. Plaintiff stated he stopped prior to entering his cell and that Officer Bankard grabbed him by the throat. ECF No. 10-4, p. 31.

         The Intelligence and Investigative Division ("IID") commenced an investigation. ECF No. 10-4, Records Declaration of Nicole Miraglia, pp. 2-7. The detective assigned to the investigation reviewed Green's ARPs and the use of force report, interviewed Green and the case manager, and reviewed the video footage of the incident. Id., pp. 8-9. The detective noted during Green's interview that Green stated Bankard punched him and attempted to slam him and choke him almost to the point of unconsciousness. Id. The detective observed that the video showed that Green visibly increased his distance between himself and Bankard and "was pulling against the grasp of CO-II Bankard." Id. He further noted that Bankard threw no punches and no evidence existed of an assault either from slamming or choking Green. Id. The report concluded that Green's claims were not meritorious. Id., p. 10.

         Standard of Review

         This Court is mindful of its obligation to liberally construe the pleadings of pro se litigants. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a cognizable claim, Weller v. Dep't of Soc. Servs,, 901 F.2d 387, 391 (4th Cir. 1990), or "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). In making this determination, "[t]he district court... must hold the pro se complaint to less stringent standards than pleadings drafted by attorneys and must read the complaint liberally." White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989).

         A motion for summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950). The moving party bears the burden of showing that there is no genuine issue of material fact. See Fed. R. Civ. P. 56(c); Pulliam, 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).

         When ruling on a motion for summary judgment, the Court must draw all reasonable inferences in favor of and construe the facts in the light most favorable to the non-moving party. See Tinsley v. First Union Nat'l Bank,155 F.3d 435, 437 (4th Cir. 1998). Nevertheless, a party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element. .. necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. Thus, on those issues on which the non-moving party will have the burden of proof, ...

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