United States District Court, D. Maryland
Theodore D. Chuang United States District Judge
Kimberlee Swartz, an inmate at the Maryland Correctional
Institution for Women ("MCIW") in Jessup, Maryland,
has filed a Complaint alleging that Defendant Correctional
Officer Harmanpreet Singh engaged in improper sexual contact
with her, sprayed her with mace, and forcefully pushed her in
the shower. Before the Court is Singh's Motion to Dismiss
or, in the Alternative, Motion for Summary Judgment. Also
pending are Singh's Motion to Strike Exhibits,
Swartz's Motion for Appointment Counsel, and Swartz's
Motion for Case Management Action. Having reviewed the
submitted materials, the Court finds no hearing necessary.
See D. Md. Local R. 105.6. For the reasons set forth
below, Singh's Motion to Strike Exhibits will be granted
in part and denied in part; Singh's Motion to Dismiss or,
in the Alternative, Motion for Summary Judgment, construed as
a Motion for Summary Judgment, will be denied; Swartz's
Motion for Appointment of Counsel will be granted; and
Swartz's Motion for Case Management Action will be
an inmate residing in the Mental Health Unit at MCIW, alleges
that on October 27, 2017, between approximately 12:45 p.m.
and 2:00 p.m., Singh took her into the shower in the Mental
Health Unit, opened her clothing, and touched her breast.
When she screamed for help, he sprayed mace in her face,
called her a "fuckin[g] bitch," and pushed her into
the shower, causing her to hit her head against the wall.
Swartz Decl. ¶ 2, Opp'n Mot. Summ. J.
("Opp'n") Ex. 4, ECF No. 21-2. According to
Swartz, Correctional Officer II Veronica Taylor and Lt. David
Sieracki were present and witnessed the assault.
October 30, 2017, Swartz reported the incident, pursuant to
the Prison Rape Elimination Act ("PREA"), 42 U.S.C.
§§ 15601-15609 (2012), to Mayowa Ogundiyun, a
mental health professional at MCIW. Swartz told Ogundiyun
that prior to the incident, she had rubbed feces on the
window of her cell because she was upset that nursing staff
had not provided her with diapers in time. According to
Sabrina Shank, an inmate whose job was to assist with clean
up, Taylor directed her to provide cleaning supplies to
Swartz to clean her cell. Taylor then directed Singh to take
Swartz to the shower while Shank cleaned the cell. It was at
that point that, according to Swartz, the assault occurred.
In a declaration, Shank has corroborated Swartz's account
by stating that after Singh took Swartz to the shower area,
she heard Swartz scream and tell Singh, "Why are you
touching me, leave me alone, get away from me," and she
smelled mace. Shank Decl. ¶ 5, Opp'n Ex. 2, ECF No.
21-2. According to Swartz, on October 31, 2017, she reported
the incident to Warden Chippendale and asked her to review
the video coverage.
asserts that Singh received a reprimand for the incident.
According to the declarations of six other inmates, Singh has
assaulted or threatened other female inmates in the past, and
these six inmates have collectively described three specific
part, Singh denies Swartz's allegations. According to
Singh, he has never assaulted Swartz or any other inmate
physically or sexually. He also denies that he was
reprimanded for the incident. Other correctional officers
corroborate Singh's account. Taylor denies Swartz's
allegation that she asked Singh to escort Swartz to the
shower on October 27, 2017 and states that she has never
asked a male officer to escort an inmate to the shower.
Likewise, Sieracki asserts that he did not witness an assault
by Singh on Swartz in the shower area of the Mental Health
Unit that day. Correctional Officer Tameka Johnson, who was
working in the Mental Health Unit on October 27, 2017,
asserts in a declaration that she did not allow male officers
on the Mental Health Unit at MCIW that day or on any other
date. According to Singh, Taylor, Sieracki, and Johnson,
prison policy prohibits male correctional officers from
working in the Mental Health Unit at MCIW or escorting female
inmates to the shower. However, Swartz has submitted
declarations from five different inmates stating that they
have seen male correctional officers, including Singh,
working in or visiting the Mental Health Unit on multiple
2018, Swartz sent a letter to the United States Marshals
Service stating that she had been sexually assault by MCIW
correctional staff. As a result of that letter, the
Intelligence and Investigation Division ("IID") of
the Maryland Department of Public Safety and Correctional
Services opened an investigation into her allegations. The
investigator, Detective Paul Owens, interviewed Swartz on
June 29, 2018. Swartz described the October 27, 2017 incident
and a different alleged assault. According to Owens, during a
follow-up interview on November 7, 2018, Swartz admitted that
she was not actually assaulted. Swartz denies making such a
statement to Owens.
Swartz informed Owens of another inmate, Sherry Knott, who
was a possible witness, that inmate had already been released
from imprisonment and could not be located. Owens interviewed
Sieracki, but he did not interview Singh because he invoked
his Miranda rights. Owens also reviewed Swartz's
infraction history. Owens could not locate any video
recordings of the incident. In February 2019, Owens requested
that the investigation be closed.
October 18, 2018, Swartz filed her Complaint against Singh in
this Court. With her Complaint, Swartz attached an
Application for Statement of Charges, dated July 2, 2018,
which she completed in order to file a criminal complaint
against Singh in the District Court of Maryland for Anne
Arundel County, but which appears not to have been filed. In
the Complaint, Swartz does not identify any specific
statutory or constitutional claim, but she states that as
relief, she wants to press charges for sexual assault against
the "other 2 officers involved and against Warden
Chippendale [of] MCIW for covering the assault up."
Compl. at 3, ECF No. 1. Swartz also asks that she be
transferred to another prison. Because self-represented
complaints are to be construed liberally, and because a civil
plaintiff may not obtain, as relief, a criminal prosecution
against another individual, Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973), the Court construes the
Complaint as a civil rights claim under 42 U.S.C. § 1983
alleging excessive force in violation of the Eighth Amendment
to the United States Constitution.
Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment, Singh seeks dismissal under Federal Rule of Civil
Procedure 12(b)(6) or summary judgment under Rule 56 on the
grounds that the Complaint fails to state a plausible claim
for relief and that there is no genuine issue of material
fact such that he is entitled to judgment as a matter of law.
Although Singh argues that violations of state policies,
procedures, and regulations do not establish a constitutional
claim, the Court does not read the Complaint as seeking such
relief and thus does not address this issue. The Court also
declines to address Singh's argument regarding the
unavailability of injunctive relief as premature.
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 ...