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Burgess v. Wehn

United States District Court, D. Maryland

September 9, 2019

KEITH BURGESS, Plaintiff,
v.
ROBERT WEHN, CO II, DENISE GELSINGER, Warden, and STEPHEN MOYER, Secretary, Defendants.

          MEMORANDUM OPINION

          Theodore D. Chuang United States District Judge.

         Plaintiff Keith Burgess, an inmate at the Patuxent Institution ("Patuxent") in Jessup, Maryland, has brought this civil rights action pursuant to 42 U.S.C. § 1983 against Roxbury Correctional Institution ("RCI") Correctional Officer II Robert Wehn; RCI Warden Denise Gelsinger; and Maryland Secretary of Public Safety and Correctional Services Stephen Moyer. Defendants have filed a Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment. Burgess has responded. Having reviewed the Complaint and submitted materials, the Court finds no hearing necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Motion will be granted.

         BACKGROUND

         On July 13, 2018, Burgess filed his verified Complaint in which he alleged that on January 20, 2018 at approximately 5:30 p.m., while housed at RCI, he was stabbed by other inmates when he was returning to his cell after dinner. Burgess cried out for help but did not receive any until his cellmate assisted him by pulling him into their cell and tending to his wounds. According to Burgess, when Wehn, while conducting a prisoner count, looked into Burgess's cell, Burgess called out "CO! You got to get me out of here! I just got stabbed!" Compl. ¶ 13, ECF No. Wehn looked at Burgess, who was bloody, mumbled, and kept walking. Burgess rushed to the door and continued to yell that he needed assistance, but Wehn continued the count. Burgess laid down in his cell and waited for medical staff to arrive, but it did not. He later kicked his door to alert staff that he needed help, but no one came to his aid.

         When the cell doors opened for recreation at approximately 6:45 p.m., Burgess tried to make his way off the tier and to a correctional officer, but he was again stabbed from behind by multiple inmates. After this second assault, correctional officers came to his aid, and he was taken to the medical unit and ultimately to the hospital for treatment.

         On January 20, 2018, Wehn was assigned to the Control Center for Housing Unit 2, in which Burgess's cell was located. According to Wehn, he did not leave his Control Center post during his shift and was not present on the tier floor when the inmate count was conducted. Wehn denies seeing any altercation involving Burgess or any other inmates when inmates were returning from dinner that evening. Later, when the inmates were released for recreation, Wehn saw Burgess and another inmate in the housing unit's lobby area. Wehn did not see any signs of injuries on Burgess. According to Wehn, Burgess and the other inmate were facing off in what appeared to be an imminent physical altercation. Burgess did not retreat from the other inmate. Wehn called out that a fight was about to begin and radioed for correctional officer assistance. After the fight began, two other inmates joined in. The responding officers directed the inmates to stop fighting and, when they did not, used pepper spray. Burgess was then directed to the floor and was secured with handcuffs. Because he had suffered multiple stab wounds in his back and left side and was bleeding from his face, Burgess was escorted to the medical unit and ultimately to the hospital. Among other injuries, Burgess had a punctured lung. Two of the other inmates involved in the fight fled but were located and escorted to the dispensary for treatment of their injuries. The third inmate involved was not identified. Although Burgess told an officer that he was "hit" by his own gang, Mot. Dismiss Ex. 1 at 4, ECF No. 12-2, he declined to give a statement or talk to the investigating officer, other than to say that the incident was a "misunderstanding." Mot. Dismiss Ex. 2 at 9, ECF No. 12-3.

         Following the events of January 20, 2018, a Serious Incident Report was prepared, and the matter was referred to the Intelligence and Investigative Division ("IID") for investigation. On January 22, 2018, Burgess filed a Complaint Withdrawal form in which he requested that no investigation be conducted and that the matter be closed. Without Burgess's cooperation, the IID closed the case.

         According to Burgess, he filed an Administrative Remedy Procedure grievance ("ARP") regarding the incident that was denied. Burgess states that he did not file an appeal because at that time he was on lock down and "could not learn how." Compl. ¶ 22. A review of Inmate Grievance Office ("IGO") records revealed that to the extent that Burgess had filed an ARP or other grievance relating to the incident, he did not file an appeal to the IGO. Separately, Burgess filed an ARP complaining that when he returned from the hospital on January 28, 2018 after receiving treatment for his injuries sustained in the January 20 assault, his property was missing. After that ARP was resolved, Burgess appealed the determination to the IGO on May 22, 2018.

         DISCUSSION

         In their Motion, Defendants seek dismissal under Federal Rules of Civil Procedure 12(b)(6) or summary judgment under Rule 56. In support of their Motion, Defendants argue that Burgess has alleged no facts demonstrating personal involvement by Defendants Gelsinger and Moyer, and there is no vicarious liability under § 1983; Burgess failed to exhaust administrative remedies; Burgess has failed to allege or establish a constitutional or statutory violation that would entitle him to relief under § 1983; and Defendants are entitled to qualified immunity.

         I. Legal Standards

         To defeat a motion to dismiss under Rule 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although courts should construe pleadings of self-represented litigants liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007), legal conclusions or conclusory statements do not suffice, Iqbal, 556 U.S. at 678. The Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm'rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).

         Defendants filed their Motion as a Motion to Dismiss or, in the Alternative, for Summary Judgment and attached exhibits for consideration. Typically, when deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court considers only the complaint and any attached documents "integral to the complaint." Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Rule 12(d) requires courts to treat such a motion as a motion for summary judgment where matters outside the pleadings are considered and not excluded. Fed.R.Civ.P. 12(d). Before converting a motion to dismiss to one for summary judgment, courts must give the nonmoving party "a reasonable opportunity to present all the material that is pertinent to the motion." Id. "Reasonable opportunity" has two requirements: (1) the nonmoving party must have some notice that the court is treating the Rule 12(b)(6) motion as a motion for summary judgment, and (2) the nonmoving party "must be afforded a reasonable opportunity for discovery" to obtain information essential to oppose the motion. Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (citation omitted).

         Here, the notice requirement has been satisfied by the title of Defendants' Motion. As to the second requirement, the nonmoving party can show that a reasonable opportunity for discovery has not been afforded by filing an affidavit or declaration under Rule 56(d), or another filing, explaining why "for specified reasons, it cannot present facts essential to justify its opposition." Fed.R.Civ.P. 56(d). See Harrods Ltd. v. Sixty Internet Domain Names,302 F.3d 214, 245 (4th Cir. 2002). In his memorandum in opposition to the Motion ("Opposition"), Burgess requests discovery of the "DPSCS rules and policies that were followed regarding this incident and all correctional officer's duties and responsibilities while conducting count and while at the control center post from defendants." Opp'n Mot. Dismiss at 1, ECF No. 14. Burgess does not explain how any of the requested materials are essential to opposing Defendants' Motion. More importantly, because, as discussed below, the Court finds that the Motion will be granted based on the failure to exhaust administrative remedies, it ...


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