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Moore v. Gilpin

United States District Court, D. Maryland

August 19, 2019



          James K. Bredar Chief Judge

         Self-represented 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, [1] Sergeant William Thomas, and Officer John Doe.[2] 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.

         On 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 granted.[3]


         Moore 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.[4] 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 6.

         Moore 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.

         According 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 leaving." Id.

         Officer 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.

         Officer 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.

         Jordan 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.

         Sgt. 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.

         On 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.

         On May 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 because an Intelligence and Investigative Division review had been opened. Id. at 7.

         On 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 ...

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