Melissa Rodriguez v. State of Maryland, No. 08-1972 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1972 PHILIP E. PARKER, SR.; MELISSA RODRIGUEZ, individually and as a personal representative of the Estate of Philip E. Parker, Jr., deceased, Plaintiffs - Appellants, v. STATE OF MARYLAND; MARY ANN SAAR, Secretary, Department of Public Safety & Correctional Services; FRANK C. SIZER, JR., Commissioner, Division of Corrections; LEHRMAN DOTSON, Warden, Maryland Correctional Adjustment Center; OFFICER #1, Escorting Kevin G. Johns to sentencing; OFFICER #2, Supervisor in charge of Transportation at the Maryland Correctional Institution Hagerstown; OFFICER #3, Officer or Officers who placed men on transportation vehicle at the Maryland Correctional Institution Hagerstown to Maryland Correctional Adjustment Center; ROBERT SCOTT, an Officer on Transport Vehicle; KENYATTA SURGEON, an Officer on transport vehicle; LARRY COOPER, an Officer on transport vehicle; EARL GENERETTE, an officer on transport vehicle; CHARLES GAITHER, driver of transport vehicle; OFFICER NUMBER 9, Officer at the Maryland Correctional Adjustment Center, Supervisor in charge of receiving inmates being transported from the Maryland Correctional Institution Hagerstown; OFFICER NUMBER 10, Officer or Officers at the Adjustment Center, Officers receiving inmates being transported from the Maryland Correctional Institution Hagerstown, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:06cv-01676-AMD) Argued: December 8, 2010 Decided: January 21, 2011 Before Sandra Day O CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitting by designation, and DUNCAN and AGEE, Circuit Judges. Affirmed opinion, joined. by unpublished opinion. Judge Duncan wrote the in which Associate Justice O Connor and Judge Agee ARGUED: Michael A. Mastracci, LAW OFFICE OF MICHAEL A. MASTRACCI, LLC, Baltimore, Maryland; Samuel Martin Shapiro, SAMUEL M. SHAPIRO, PA, Rockville, Maryland, for Appellants. Rex Schultz Gordon, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Douglas F. Gansler, Attorney General of Maryland, Stephanie Lane-Weber, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 DUNCAN, Circuit Judge: This appeal arises out of Maryland inmate Kevin Johns s murder of a fellow prisoner, Philip Parker, Jr. Parker s mother and father, who sued Plaintiffs are various correctional officers, prison officials, and the State of Maryland, alleging, inter alia, under 18 a violation U.S.C. of § 1983. judgment for defendants. Parker s The Eighth district Amendment court rights granted summary Plaintiffs urge that the court erred by finding that their claims failed as a matter of law. For the reasons described below, we affirm. I. A. We review the relevant facts, construing the evidence in the light most favorable to plaintiffs reasonable inferences in their favor. and drawing all Smith v. Ozmint, 578 F.3d 246, 250 (4th Cir. 2009). Parker and Johns were inmates high-security Supermax prison. in Baltimore, Maryland s On January 31, 2005, Parker, Johns, and two other Supermax inmates were transported by bus to a correctional facility in Hagerstown. Parker testified at a sentencing While in Hagerstown, hearing for Johns. Parker explained that he had known Johns for [t]hree or four years and liked him personally. J.A. 102-03. 3 He added, however, that he believed that Johns needed treatment while incarcerated to deal with paranoia and anger issues. In the early morning of February 2, 2005, a bus operated by the Maryland Division of Correction picked up the four Supermax inmates, as Hagerstown The bus well as thirty-two facilities, was staffed for by other prisoners transportation five back correctional from to several Baltimore. officers: Sergeant Cooper and Officers Gaither, Generette, Scott, and Surgeon. All of the officers were armed with firearms and pepper spray. The officers strip-searched the four before permitting them to board the bus. prisoners in three-point Generette, Scott, and observed inmates They also placed the restraints. Surgeon Supermax Officers the Gaither, Supermax inmates laughing, joking, and apparently on friendly terms with each other as they took their seats at the rear of the bus. Johns sat one row behind Parker. During transport, most of the thirty-six inmates were seated in three interior compartments, divided by grillwork and locked doors. protective One inmate had, at his request, been placed in a custody threats from Johns. cage for the trip, after receiving death Parker had not reported any such threats, nor were any of the officers otherwise aware of any tension or conflict between Parker and Johns. 4 Officers Generette and Surgeon rode at the front of the bus, next to Officer Gaither, who was driving. Sergeant Cooper and Officer Scott rode in a compartment at the back of the vehicle, about seven feet behind Parker s seat, which was in the rearmost inmate compartment. A layer of plexiglass and grillwork separated Sergeant Cooper and Officer Scott from that compartment. The bus s interior lights were turned off for most of the ride. Surgeon While the bus was in transit, an inmate observed Officer playing games on her cell phone. Another inmate witnessed an officer at the rear of the bus watching a portable television set. Around 3:45 a.m., Officer Scott saw a then-unidentified inmate at the rear of the bus get up from his seat and move to the seat in front of him. Officer Scott used the bus s interior telephone to report what he had seen to the officers at the front of the bus. He explained that he did not know whether the inmate was playing or not but thought [that] something had happened. Id. at 123. At his request, the bus s interior lights were turned on. Sergeant Cooper shone his flashlight through the plexiglass and grillwork in the direction of the inmate who had switched seats--now identified as Johns. same bench as Parker. Johns had moved to sit on the Officer Scott could see a blue shirt in 5 the corner of the seat by the window. Officer Scott knew that the blue shirt did not belong to Johns, who had been wearing a white T-shirt when he boarded the bus. He told the other officers that when they reached their first stop, the Supermax prison, they should go back to the back of the bus as a team, as he was not sure if the inmates were planning to try to do something to an officer. Id. at 280. Cooper saw nothing unusual. For his part, Sergeant Id. at 236. From the front of the bus, Officer Generette could see the heads of the inmates in the rear compartment nothing unusual or out of the ordinary. and observed Id. at 123. He saw Johns in particular look[ing] calm and relaxed, with his head laid back on the seat[] looking at the ceiling. Id. Officer Generette informed Officer Scott that nothing seemed wrong. The officers turned off the interior lights and the bus proceeded to the Supermax prison. Upon arrival, Officer Scott [j]umped out of the bus and [r]an around front. Id. at 282. The officers stowed their weapons in the vehicle s weapon box and Officer Gaither unlocked the rear compartment, where Johns s movement had earlier been observed. The first Officer Gaither called each inmate out individually. two Supermax inmates emerged Sergeant Cooper escorted them into the prison. 6 without incident. Johns was the third inmate called from his seat. red marks on his shirt that looked like blood. He had Id. at 285. Officer Scott also saw blood on the seat where Johns had been sitting. Officer Scott told Officer Gaither to hold Johns and reported that Johns may have cut Parker. Id. Officer Scott then moved to Parker s seat and found Parker slumped down in between the chairs. Officer Scott shook Parker and called Id. out to him, but Parker did not respond. Officer Scott raised Parker s head, revealing a mark on his neck and some blood by his nose. Id. Officer Scott attempted to lift Parker but was unable to do so, since Parker s leg was twisted under the seat. Scott enlisted worked to escorting the help extricate the first of Parker, two Officer Gaither. Sergeant Supermax While Cooper inmates Officer the returned into the two from prison. Sergeant Cooper asked if medical assistance was required and Officer Gaither replied that it was. Sergeant Cooper returned to the prison and advised them to contact medical services or call 911 because an inmate on the bus was injured. In the meantime, Officers Scott and Gaither Parker s restraints and lifted him from his seat. 7 Id. at 236. removed The officers carried Parker to the front of the bus. 1 they removed him from the bus and laid out in Several minutes later, laid him down in the Supermax s sallyport. While Parker was the sallyport, officers repeatedly checked his pulse and verbally confirmed that he had one. 2 An officer shone a flashlight into Parker s eyes in an attempt to gauge his responsiveness. Another officer requested a sheet or blanket for Parker but neither was produced. few minutes inside. arrived in At and the sallyport, around began 4:22 a.m., treating two officers emergency Parker. Baltimore s Mercy Hospital, where he was 4:57 a.m. Parker s autopsy showed carried medical Parker After a was Parker personnel taken to pronounced dead at that he died of strangulation. A subsequent investigation revealed that Johns had loosened his restraints during transport. While still seated behind 1 The district court found that Officer Gaither performed CPR on Parker at the front of the bus. Rodriguez v. Maryland, Civ. No. AMD 06-1676, at 5 (D. Md. July 31, 2008). Although there is testimony from the officers that Officer Gaither did so, their account was disputed by an inmate, who testified that no CPR was performed. Consistent with our obligation to construe disputed facts in the light most favorable to the plaintiffs, we assume that no CPR was performed. 2 The record includes a video depicting a portion of the events that took place at the Supermax facility. It is not clear how long the bus had been at the prison when recording commenced. 8 Parker, Johns hooked his arm over the seat and choked Parker for about five minutes, until he stopped moving. up, moved forward, and sat down next Johns then stood to Parker. Placing Parker s head in his lap, Johns made statements like [t]his is your last ride mother fucker and go to sleep little baby and cut Parker with a razor blade. Id. at 741. Although at least two inmates witnessed the murder, none of the prisoners alerted the correctional officers that Parker was being attacked. B. Plaintiffs filed suit in Maryland state court in May 2006, alleging violations of Parker s federal constitutional rights under the Eighth and Fourteenth Amendments as well as various state law district claims. court Defendants on June 29, removed 2006. the On case February to federal 8, 2008, defendants filed a motion to dismiss or, in the alternative, for summary judgment. The district court granted defendants motion for summary judgment on July 31, 2008. the court concluded that In a ten-page memorandum opinion, neither the officers failure to protect Parker from Johns s attack nor their limited treatment of Parker s injuries rose to the level of an Eighth Amendment violation. (D. Md. Rodriguez v. Maryland, Civ. No. AMD 06-1676, at 1-2 July 31, 2008). As a result, the district court dismissed plaintiffs federal claim and remanded their suit to 9 state court claims. so that Id. at 10. they could proceed on their state law This appeal followed. II. We review the district court s grant of summary judgment de novo and affirm only if there is no genuine issue of material fact and defendants are entitled to judgment as a matter of law. Robinson v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010). Plaintiffs argue that the district court ignored facts which support their claim that the officers violated Parker s Eighth Amendment rights by failing to protect him from Johns and by inadequately attending to his injuries. 3 We disagree. While we are not unsympathetic to the tragic circumstances of Parker s murder, plaintiffs arguments sound in negligence and do not meet the high bar for Eighth Amendment claims. A. We first address plaintiffs assertion that the officers failure to protect Parker from Johns violated the Eighth Amendment s proscription of cruel and unusual punishment. To prevail on an Eighth Amendment claim, a plaintiff must show that 3 We need not reach plaintiffs argument concerning the admissibility of certain evidence, including unsworn hearsay statements. Appellants Br. at 24-27. Even if we were to admit the disputed materials, they would not defeat summary judgment. 10 (1) the inmate was objectively denied the minimal civilized measure of life s necessities and (2) sufficiently culpable state of mind. U.S. 825, 834 (1994) (internal the officers had a Farmer v. Brennan, 511 quotations omitted). For purposes of a claim that officers failed to prevent harm, the objective portion of the test is met by a showing that the inmate was incarcerated under conditions posing a substantial risk of serious harm. Id. Since Parker was murdered while in custody, the first part of the test is clearly satisfied. As a result, plaintiffs claim turns on defendants state of mind. The requisite state of mind for an Eighth Amendment challenge is one of deliberate indifference to inmate health or safety. Cir. Odom v. S.C. Dep t. of Corr., 349 F.3d 765, 770 (4th 2003) officer is (internal quotations deliberately omitted). indifferent if he A correctional knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer, 511 U.S. at 837; see also Rich v. Bruce, 129 F.3d 336, 340 (4th Cir. 1997). subjective assessment sets a particularly high bar This to recovery, Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008), which cannot be met by a showing of mere negligence, Young v. City of Mt. Ranier, 238 F.3d 567, 575 (4th Cir. 2001). 11 Plaintiffs are correct that the summary judgment record paints a troubling portrait of the officers activities before, during, and immediately after the attack. Inmate testimony shows that some of the officers were distracted during transit and insufficiently attentive to the prisoners in their charge. It is also undisputed that Sergeant Cooper and Officer Scott failed to notice or intervene during the attack, which occurred just seven feet from where they were sitting. Further, none of the officers tried to prevent Johns from switching seats during transit or detected the razor blade he used to cut Parker. The officers shortcomings, however, do not go to the ultimate issue before us. Absent some awareness of a substantial risk of serious harm, Farmer, 511 U.S. at 837, the officers behavior does not rise to the level of deliberate indifference. Plaintiffs have identified no evidence that the officers in fact perceived such a risk before the attack. dispute that the officers received no Plaintiffs do not notification of any conflict between Johns and Parker prior to transport and cite nothing in the record to suggest the officers were otherwise aware that Johns posed a threat to Parker. the officers failed to independently To the extent that access available information about Johns s criminal history, their omission was, at most, negligent. 12 Given the officers lack of prior warning, plaintiffs must show that the officers witnessed the attack and nonetheless were deliberately indifferent to the risk it presented. cite five pieces of evidence on this essential Plaintiffs point: (1) Officer Generette s testimony that when the lights were turned on he could see Johns s head from the front of the bus, which plaintiffs argue supports an inference that Sergeant Cooper and Officer Scott could see more than they claimed; (2) an inmate s statement that, while seated at the front of the bus during transit, he heard moaning sounds . . . coming from the rear, J.A. 739; (3) another inmate s testimony that he witnessed the murder from about 6 feet away and clearly heard Parker making gagging and gasping sounds as well as Johns making menacing statements, J.A. 740-41; (4) an inmate s claim that Sergeant Cooper shone his flashlight directly on the blood on the back of Parker s seat shortly after the attack; and (5) a video walkthrough of the bus during discovery that, plaintiffs contend, showed it was possible to see the attack from the officers rear compartment. None of inconsistent the with witness the attack. evidence the on officers which assertion plaintiffs that they rely is did not Even allowing for a jury s unique capacity to weigh evidence and assess credibility, see, e.g., Holland v. Wash. Homes, Inc., 487 F.3d 208, 213 (4th Cir. 2007), the fact 13 that officers support the plaintiffs could have inference counsel seen that the they conceded at attack actually oral is insufficient witnessed argument, it. there is to As no evidence that any officers saw the blood on Parker s seat or otherwise knew of the attack until after the bus had arrived at the Supermax prison. Plaintiffs arguments to the contrary amount to mere speculation, which cannot create a genuine issue of material fact. Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)). Plaintiffs their claim. reliance In Odom, on Odom the highlights defendant the weakness of officers received an explicit warning that Odom s attackers were going to try and kill [him]. 349 F.3d at 767. They then stood by and watched as inmates began to demolish the recreational cage separating them from Odom. Id. Perhaps most importantly, whereas the officers in Odom fail[ed] to offer any evidence in support of any . . . justification for their actions, id. at 772; see also id. at 770 n.2, the officers here have presented an explanation for their failure to intervene on Parker s behalf: they were unaware of the attack. 4 4 Burks v. Pate, 119 F. App x 447 (4th Cir. 2005) (unpublished disposition), is similarly distinguishable. In Burks, the plaintiff presented photographic evidence and an (Continued) 14 The officers failure to prevent Parker s murder may have been negligent. But negligence does not constitute an Eighth Amendment violation. Young, 238 F.3d at 575. Absent evidence that any of the officers possessed a sufficiently culpable state of mind, plaintiffs failure-to-prevent-harm claim cannot surmount the Eighth Amendment s high bar to recovery. Iko, 535 F.3d at 241. B. Plaintiffs next argue that the officers were deliberately indifferent to discovered him Parker s ultimately unconscious on the fatal injuries bus. after Parker s they serious medical condition satisfies the objective prong of the Eighth Amendment inquiry. Cir. 1998). officers order to were prove Johnson v. Quinones, 145 F.3d 164, 167 (4th Plaintiffs claim deliberately deliberate again indifferent indifference, turns to his on whether injuries. plaintiffs must the In show that defendants actually knew of and ignored [Parker s] serious need for medical care. Young, 238 F.3d at 575-76; see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (noting that prison guards can manifest deliberate indifference, inter alia, affidavit that created a genuine issue of material fact-whether or not [the officer] actually saw the attack. Id. at 450. The affidavit specifically stated that the officer was standing and looking up at the assault. Id. at 449. 15 by intentionally denying or delaying access to medical care ) (quoting Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). On these facts, plaintiffs cannot do so. Plaintiffs focus their claim on the officers failure to perform CPR or provide other medical assistance during the interval between when they carried Parker off the bus and when emergency personnel arrived. shows roughly five They rely heavily on a video that minutes of this period, during which plaintiffs argue the officers did absolutely nothing to assist the unresponsive Phillip Parker. Appellants Br. at 32. Plaintiffs argument is unpersuasive. As a threshold matter, plaintiffs ignore the officers undisputed actions in the minutes before video recording began. After discovering Parker unconscious on the bus, Officer Gaither instructed Sergeant Cooper to contact medical services. While emergency personnel were being summoned, Officers Gaither and Scott worked extricate him together from to his free seat, Parker and from move him his off restraints, the bus. Contacting medical services and removing Parker from his seat are inconsistent with deliberate indifference. Cf. Iko, 535 F.3d at 243 (finding that the failure to seek[] any medical evaluation or even decontamination after an inmate collapsed due to pepper spray constituted indifference). 16 medical deliberate Further, plaintiffs lurid description depicted on video is misleading. correctional route. states the events At the outset of the video, a that emergency personnel are en In the intervening minutes, as shown on the recording, correctional shone officer of a officers light in his sought a sheet or eyes to gauge his repeatedly took his pulse. support plaintiffs claim blanket for Parker, responsiveness, and In other words, the video does not that the officers ignored Parker s condition. It is certainly probable that there are things the officers could or should have done after discovering Parker s condition. But once again, plaintiffs recitation sounds entirely in negligence. of actions not taken On the undisputed facts, the officers attention to Parker s condition, though limited, was sufficient to preclude a finding of deliberate indifference. 5 5 Plaintiffs failure to show that the officers inflicted a constitutional injury necessarily bars any finding of supervisory liability for the non-officer defendants. See Tigrett v. Rector & Visitors of Univ. of Va., 290 F.3d 620, 63031 (4th Cir. 2002); see also Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). 17 III. For the foregoing reasons we affirm the grant of summary judgment. AFFIRMED 18

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