United States District Court, D. Maryland
K. Bredar Chief Judge
Plaintiff Robert Gary Moore, presently incarcerated at North
Branch Correctional Institution ("NBCI") in
Cumberland, Maryland, brings this civil action pursuant to 42
U.S.C. § 1983 against Defendants, Correctional Officer
Cody Gilpin,  Sergeant William Thomas, and Officer John
See ECF No. 1. Through the Complaint filed on June
8, 2018, Moore alleges that Officer Gilpin assaulted him and
thereafter refused to take him for medical treatment, thus
violating his Eighth Amendment right to be free from cruel
and unusual punishment. Id. at 3-6. Moore also
alleges that Sgt. Thomas violated his Fifth and Fourteenth
Amendment rights to due process by failing to process the
Administrative Remedy Procedure ("ARP") grievance
that Moore filed regarding the assault. Id. Moore
seeks $10, 000 in monetary damages from each Defendant and
injunctive relief in the form of Defendants' termination
from their employment. Id. at 8.
October 24, 2018, Defendants filed a Motion to Dismiss or, in
the Alternative, Motion for Summary Judgment. ECF No. 17.
Moore filed a response on November 5, 2018. ECF No. 20. After
review of the record, exhibits, and applicable law, the Court
deems a hearing unnecessary. See Local Rule 105.6
(D. Md. 2018). Defendants' motion shall be construed as a
Motion for Summary Judgment and shall be
claims that on April 6, 2018, Officer Gilpin escorted him to
the medical unit at NBCI for an examination by a nurse
practitioner. ECF No. 1 at 3. Moore states that during the
examination, the nurse practitioner squeezed his left leg,
causing him to "raise up in excruciating pain."
Id. According to Moore, Officer Gilpin then slammed
his head on the medical table. Id. at 3-4.
Thereafter, Moore demanded to be taken back to his cell
"because he didn't like and accept the way he was
being treated, and . . . the [nurse] should have known what
medical problems plaintiff had." Id. at 4.
Moore alleges that when he began to leave, he heard the nurse
say in a sarcastic tone that Moore did not have stomach and
leg pains as he had reported. Id. Moore also alleges
that as he was being escorted back to his cell, Officer
Gilpin "became real aggressive" and "continued
to push the plaintiff forward," causing Moore to fall to
his knees. Id. According to Moore, Gilpin and
another officer dragged him by his arms, which were
handcuffed from behind, and slammed his arms through the cell
slot, scraping the skin from his forearms. Id. at
4-5. Moore claims that he told Officer Gilpin he needed to
see the nurse, but Gilpin denied his request. Id. at
states that on April 30, 2018, he submitted an ARP grievance
regarding the incident. Id. at 5. Moore claims that
he placed the ARP in a sealed envelope and gave it "to
Officer Hoover to give to Officer Tichnell."
Id. Having not received a copy of the ARP by May 8,
2018, Moore asked the tier officer to inform Tichnell and
Sgt. Thomas that he had not received a yellow copy indicating
that his grievance was being processed. Id. Moore
again asked Tichnell about the ARP on May 17, 2018.
Id. at 5-6. Moore claims that Tichnell confirmed
receipt of the ARP from Officer Hoover, that Tichnell gave it
to Sgt. Thomas, and that Tichnell stated, "to tell the
truth, it probably got shredded by Sgt. Thomas."
Id. at 6. Moore also claims Tichnell told him that
Sgt. Thomas was off from work for a few days for fighting
another officer and that he would ask about the ARP when
Thomas returned. Id.
to Defendants, at the time of the alleged incident on April
6, 2018, Moore was housed at NBCI in Housing Unit 1, Tier C,
Cell 28. ECF No. 17-2 at 3 (Business Records). They do not
dispute that Officer Gilpin escorted Moore to the medical
unit, where he was examined by Registered Nurse Holly Pierce.
ECF No. 17-3 at ¶ 3 (Decl. of Cody Gilpin); ECF No. 17-4
at 2-6 (Medical Records). Pierce noted that Moore entered the
exam room after complaining of abdominal pain. Id.
at 4. When asked to describe his pain, Moore replied,
"read my records" and "You should know."
Id. Pierce asked Moore to lay flat for an
examination. Id. When Pierce attempted to assess
him, Moore sat up, jumped to his feet without difficulty and
screamed, "I'm done. I'm over this. I'm
Gilpin states that he remained in the examination room during
Moore's medical visit for the protection of the medical
professionals. ECF No. 17-3 at ¶ 3. Officer Gilpin
believed that Moore's movement in jumping up from the
table was a threatening action towards Pierce, and he pushed
down on Moore's shoulder to keep him on the table.
Id. at ¶ 4. Officer Gilpin states that he did
not purposefully, if at all, push Moore's head into the
table. Id. The medical examination ended immediately
after Moore's outburst, and Officer Gilpin began to
escort him back to his cell. Id. Officer Gilpin says
that he has no recollection of hearing Pierce say that Moore
was faking his injuries. Id.
Gilpin began to escort Moore while walking at a moderate
pace. Id. at ¶ 5. According to Pierce,
Moore's gait was initially normal but as he moved down
the hall away from the medical unit, he threw himself to the
floor stating that he could not walk. ECF No. 17-4 at 4.
Officer Gilpin also recalls that Moore refused to continue
walking. ECF No. 17-3 at ¶ 5. Officer Gilpin asked for
assistance from a nearby officer and they carried Moore back
to his cell, where he was uncuffed without further incident.
Id. Officer Gilpin has no recollection of Moore
asking to be returned to the medical unit after he was placed
in his cell. Id. He states that he did not have any
intent on April 6, 2018, to hinder, interfere with, delay or
deny Moore medical treatment. Id. at ¶6.
Tichnell, a correctional case manager at NBCI, states that he
sometimes receives correspondence from Moore and frequently
provides him photocopies of legal paperwork. ECF No. 17-5 at
¶ 3 (Decl. of Jordan Tichnell). Tichnell does not recall
receiving, nor do his case notes indicate that he received,
any correspondence containing an ARP from Moore either on or
shortly after April 30, 2018. Id. Tichnell states
that if he had received an ARP from Moore, he would have
provided it to the officer in charge of Housing Unit #1.
Id. Tichnell has no reason to believe that Sgt.
Thomas or any other officer is destroying any ARPs that he
forwards to them. Id. at ¶ 4. Specifically,
Tichnell denies making any statement to Moore suggesting that
ARPs are shredded. Id.
Thomas has no recollection of receiving any ARP grievances
from Moore during the relevant time period. ECF No. 17-6 at
¶ 3 (Decl. of William Thomas). Sgt. Thomas states that
when he receives an ARP, he signs it, places the yellow copy
in the inmate mailbox to be returned to the inmate, and
delivers the original white copy to the ARP office.
Id. Sgt. Thomas denies destroying any ARPs or any
other ARP-related papers sent to him by Tichnell.
Id. He further states that he does not have any
intent to interfere with Moore's attempts to seek
administrative remedies and he had no such intent during
April and May of 2018. Id. at ¶ 4.
April 8, 2018, Moore received a consultation visit with Nurse
Pierce, who requested an abdominal and pelvic CT scan for
Moore. ECF No. 17-4 at 7-8. The medical records do not
indicate that Moore mentioned any injuries related to the
April 6, 2018, visit, nor were any new injuries observed by
Nurse Pierce. Id. On April 15, 16, and 24, 2018,
Moore refused to attend scheduled visits with medical
professionals. Id. at 9-12. On April 26 and 27,
2018, Moore refused to go on a medical trip in order to
receive the previously requested CT Scan. Id. at
13-16. Moore further refused a physical examination on May 1,
2018. Id. at 17.
10, 2018, Moore filed an ARP appeal to the Commissioner of
Correction alleging that Officer Gilpin assaulted him on
April 6, 2018, and that the Warden failed to process his ARP
regarding that incident. ECF No. 17-2 at 7-9 (ARP
NBCI-0809-18). That ARP was sent back to the Warden at NBCI
on May 14, 2018, for processing. Id. at 4, 11. On
May 30, 2018, the ARP was reviewed and dismissed for
procedural reasons per COMAR 12.02.28.11.B(1)(h) because an
Intelligence and Investigative Division review had been
opened. Id. at 7.
August 12, 2018, Nurse Pierce noted that Moore continued to
refuse follow up care for his alleged abdominal pain.
Id. at 18. As of that date, Moore reported that his
abdominal pain ...