Kelly v. Miller

Decision Date12 July 2022
Docket NumberCivil Action ELH-20-2531
PartiesKEITH DARNELL KELLY, Plaintiff, v. LAWRENCE F. MILLER, et al., Defendants.
CourtU.S. District Court — District of Maryland

Ellen L. Hollander, United States District Judge.

Keith Darnell Kelly, a Maryland prisoner, filed a civil rights lawsuit under 42 U.S.C. § 1983, which he has twice amended. See ECF 1 (the “Original Complaint”); ECF 8 (the “First Amended Complaint” or “FAC”); ECF 53 (the “Second Amended Complaint” or “SAC”). The Original Complaint and the First Amended Complaint were filed while Kelly was self-represented, and the Second Amended Complaint was filed by appointed counsel.

Kelly has lodged several claims against various defendants principally stemming from an alleged use of force incident that occurred on May 28, 2019. The Original Complaint named twelve defendants, and the First Amended Complaint added four more. See ECF 8, ¶ 16.[1]

As to the original Complaint, the defendants moved to dismiss or for summary judgment. See ECF 23; ECF 34. In a Memorandum Opinion (ECF 40) and Order (ECF 41-2) of July 19 2021, the Court denied the motion as to three claims against five of the original defendants. The claims are use of force in violation of the Eighth Amendment; denial of due process in violation of the Fourteenth Amendment; and retaliation, in violation of the First Amendment. See ECF 412, ¶ 6. And, the five defendants are Lawrence F. Miller, Kristofer Davis, Lander Walley, Curtis Cornell, and Dustin Fignar. ECF 41-2, ¶ 6. In addition, the Court granted plaintiff's request to amend his Original Complaint, adding the four new defendants named in the FAC: David Sipes, Ronald Stotler,[2] Audrey Brown, and Robin Woolford. Id. ¶¶ 2, 8.

Thereafter, the Court appointed pro bono counsel to represent plaintiff. ECF 44; ECF 50. With defendants' consent (see ECF 51), counsel filed the Second Amended Complaint. See ECF 53. It contains little in the way of new factual allegations, and “expressly adopts and incorporates the procedural, factual, and legal statements and allegations,” as well as the exhibits submitted with the Original Complaint and the First Amended Complaint. Id. ¶ 1; see ECF 1-1; ECF 8-1; ECF 53-2 to ECF 53-11.[3] I shall generally refer to the SAC, together with the material it has incorporated from the Original Complaint and the FAC, as the “Complaint.”

The Second Amended Complaint reasserts plaintiff's three surviving federal constitutional claims, and lodges the claims against all nine current defendants. Id. ¶¶ 2, 9-11. These claims are now denominated as Eighth Amendment - Use of Force” (Count I); Fourteenth Amendment -Due Process” (Count II); and First Amendment - Retaliation” (Count III). Id. ¶¶ 9-11. In addition, the SAC adds three new State law claims against all defendants: “Maryland Common Law - Negligence” (Count IV); “Maryland Common Law - Battery” (Count V); and “Maryland Declaration of Right [sic] - Article 25” (Count VI). Id. ¶¶ 3, 12-22. The SAC also contains “Count VII,” titled “Punitive Damages.” ECF 53, ¶¶ 23-25. All defendants have been sued in their individual and official capacities. Id. ¶¶ 2, 3.

Defendants have filed a Motion to Dismiss Plaintiff's Second Amended Complaint Or, In the Alternative, for Summary Judgment.” ECF 55. The motion is supported by a memorandum (ECF 55-1) (collectively, the “Motion”), as well as exhibits. ECF 55-3 to ECF 55-10. The Motion does not challenge the three federal constitutional claims against the original five defendants, except to argue that the claims against defendants in their official capacities should be dismissed, pursuant to the Eleventh Amendment. See ECF 55-1 at 2, 11-12. However, the Motion urges the dismissal of all federal and State claims against the four new defendants (Sipes, Stotler, Brown, and Woolford). Id. at 12-19. And, the Motion argues that the three new State law claims must be dismissed as to all defendants, under the Maryland Tort Claims Act (“MTCA”), Md. Code (2021 Repl. Vol.), § 12-101 et seq. of the State Government Article (“S.G.”). ECF 55-1 at 19-22.

Plaintiff opposes the Motion. ECF 58 (the “Opposition”). Defendants replied. ECF 59 (the “Reply”).

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion in part and deny it in part.

I. Factual and Procedural Background[4]
A. Incident of May 28, 2019, and Aftermath

On May 28, 2019, Kelly was an inmate at Roxbury Correctional Institution (“RCI”) in Hagerstown, Maryland, assigned to disciplinary segregation. ECF 1, ¶ 18. He is now confined at North Branch Correctional Institution (“NBCI”). Id. ¶ 3.

Plaintiff claims that on May 28, 2019, defendant Lander Walley, a “Correctional Officer Sergeant” at RCI (id. ¶ 8), came to his cell to escort him to a case management review hearing concerning plaintiff's assignment to segregation. Id. ¶¶ 3, 18. Kelly recalls that Walley opened the tray slot on the cell door, handcuffed Kelly behind his back, called for the cell door to be opened, and searched Kelly after he exited the cell. Id. ¶¶ 19, 20.

According to Kelly, during the escort to the review hearing, Walley engaged in what Kelly describes as a “very unprofessional, threaten[ing] and dangerous conversation” in which Walley called plaintiff a “rat (snitch) and a “scared bitch.” Id. ¶ 21. Kelly alleges that Walley “talked about how he would fuck up” Kelly's “bitch ass brother because he called the prison on Kelly's behalf. Id. Further, Kelly alleges that Walley threatened to “get Plaintiff set-up” because Kelly had written complaints about Walley and other officers. Id.

Kelly acknowledges that he used profanity when addressing Walley, and that he told Walley he was going to complain about Walley's threats. Id. According to Kelly, Walley again threatened Kelly's brother with assault. Id. Upon arriving to the area where the segregation reviews were conducted, Walley told Kelly “to have a seat” and also said: ‘Don't move you little bitch.' ECF 1, ¶ 24.

Thereafter, defendants Kristofer Davis, Curtis Cornell, Dustin Fignar, and an officer named either Powers or Powell arrived, escorting other inmates. Id. ¶ 25. Kelly identifies Davis as a “Correctional Officer II” (id. ¶ 7); Cornell as a “Correctional Officer Sergeant” (id. ¶ 9); and Fignar as a “Correctional Officer II” (id. ¶ 10). Kelly recalls that Cornell asked Walley what was going on, and speculates that Cornell must have heard Walley telling plaintiff not to move. Id. ¶ 26. Kelly alleges that Walley told Cornell nothing was going on. Id. After Fignar and Davis seated the inmates they were escorting, Kelly claims they began a verbal assault against him. Id. ¶ 27. Kelly states that Fignar said Kelly was ‘all mouth' and that he could not wait ‘until those gangs get a hold of your coward ass.' Id. ¶ 28. Kelly claims that Cornell also said that all Kelly does ‘is run his big mouth,' and accused him of being too scared to have a cellmate. Id. ¶ 29.

According to Kelly, Walley then joined in, repeated that Kelly is a “rat and a coward,” and made vulgar remarks about what he would make Kelly and his brother do. Id. ¶ 30. Kelly admits that he also engaged in the verbal exchange and made vulgar, threatening statements about Walley's children and his wife. Id. ¶ 31. According to Kelly, Walley responded that Kelly ‘better watch his back at all times' because ‘cell doors do malfunction,' especially the doors on cells housing members of the gang known as the Bloods. Id. ¶ 33. Kelly explains that because the Bloods threatened his life, he was on disciplinary segregation. Id. ¶ 34.

Kelly was escorted into the review room by Davis, who remained in the room during the hearing. Id. ¶ 39. Kelly recalls that the review team consisted of a Case Management Staff Member, Dwight Barnhart, a former defendant in this case;[5] Chelsea Finucane, a “mental health psychiatrist” at RCI (ECF 1, ¶ 61); an “Intel” officer; and another Case Management staff member who was conducting the hearing. Id. ¶ 39. During the hearing, Kelly asked why he had not been transferred to another prison yet and advised the review team that he was still being threatened by other inmates and officers. Id. Kelly claims he also told the review team about the verbal exchange that had just occurred. Id. In answer to plaintiff's questions, Barnhart advised that Kelly could not be transferred because he was viewed as a “serious disciplinary problem and officers daily viewed [his] ‘daily behavior' as poor.” Id. Kelly disputes Barnhart's assertions. Id.

Plaintiff also complained to the review team about officers not sending out his mail, and claimed the officers threw away his mail or gave it to gang members. Id. ¶ 40. Kelly specifically alleges that Fignar, Walley, Davis, and “Officer Quackenbush” are “guilty of mail fraud and tampering.” Id. Kelly also asked the review team why he was still charged with assaulting inmate Dominic Frazier, when an investigator had concluded that Kelly was simply protecting himself from Frazier, a known member of the Bloods. Id. ¶ 41. Kelly noted that Fignar had dropped the rule violation for assault that was brought against Frazier, and had helped Frazier get released to home detention. Id.

Kelly recalls that he provided the review team with dates and times of incidents to support his claims. They include the following, id. ¶ 42:[6]

Kelly claims that in August 2018 he was attacked by members of a gang known as the Black Guerrilla Family (“BGF”), and that they had advised him they were hired by Fignar and “Officer Reel” to assault him so he would close his “big mouth.”

On March 25, 2019, at 10:56 a.m., Kelly gave a mental health nurse a request form stating he was in...

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