United States District Court, D. Maryland
Theodore D. Chuang United States District Judge.
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.
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.
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.
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
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.
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.
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.
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).
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
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 ...