United States District Court, D. Maryland
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE.
Plaintiff Terry Green, a State prisoner incarcerated at
Eastern Correctional Institution in Westover, Maryland
("ECI"), filed an unverified Complaint
pursuant to 42 U.S.C. § 1983. Green seeks money
damages and the prosecution of Correctional
Officer Richard Bankard,  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. 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. 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,  as is Green's cross-motion for summary
judgment, and Defendant's dispositive motion, construed
as a motion for summary judgment,  IS GRANTED.
Plaintiff Green's Allegations
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.
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. ECF No. 10-3, Video Footage of Incident at
1930:44-47. In his statement of affirmation concerning the
incident,  Bankard states that Green became
verbally abusive, yelling "I want to kill all these ...
police!" 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. 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.
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.
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.
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).
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)).
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, ...