Turner v. Kight

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-1125

SHERRI A. TURNER,

Plaintiff - Appellant,

versus

RAYMOND M. KIGHT; BRUCE P. SHERMAN; RODNEY
BROWN; RICHARD KANE; ROBIN LEWIS; WILLIAM
PECHNICK; ERIC BROWN; BRIAN PHILLIPS;
ARTHUR M. WALLENSTEIN; T. L. HICKS; R.
ANDREWS; MONTGOMERY COUNTY, MARYLAND,

Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-01-1408-AW-8)

Submitted: October 29, 2004 Decided: January 7, 2005

Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Ralph T. Byrd, Laytonsville, Maryland, for Appellant. J. Joseph
Curran, Jr., Attorney General of Maryland, Cynthia G. Peltzman,
Assistant Attorney General, Baltimore, Maryland; Charles W.
Thompson, Jr., County Attorney, Sharon V. Burrell, Principal
Counsel for Self-Insurance Appeals, Patricia P. Via, Associate
County Attorney, Rockville, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Sherri A. Turner appeals the district court’s dismissal

of her complaint pursuant to 42 U.S.C. § 1983 (2000), on

Defendants’ summary judgment motions. For the reasons set forth

below, we affirm.

Turner’s action named State Defendants Sheriff Raymond M.

Kight, Bruce P. Sherman, Rodney Brown, Richard Kane, Robin Lewis,

William Pechnick, Eric Brown, and Brian Philips, as well as County

Defendants Arthur M. Wallenstein, Theresa L. Hicks, Robert Andrews,

and Montgomery County, Maryland. It alleged various federal

constitutional claims arising out of Turner’s arrest and detention

by employees of the Montgomery County Sheriff’s Office and the

Montgomery County Department of Correction and Rehabilitation

(“MCDC”). She alleged violations of her civil rights when she was

taken into custody by the Sheriff’s Department, after she failed to

turn herself in, and based on events that occurred after she was

transported to the MCDC. She sought, inter alia, compensatory

damages of $5,000,000 and $10,000,000 in punitive damages.
Review of the record reveals the following facts,

construed in the light most favorable to Turner. Turner suffered

a spinal cord injury in 1997 from an unrelated automobile accident,

and she occasionally uses a neck brace and takes medication to

alleviate pain and muscle spasms. When she failed to appear on an

arrest warrant on a charge of contempt of court, Sergeant Lewis and

Deputy Pechnick of the Montgomery County Sheriff’s Office went to

Turner’s home on April 19, 2000, to arrest her. Turner asserted

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that Officers Lewis and Pechnick “stormed into [her] residence

while [she] was in bed, terrifying [her] daughters.” She asserted

that Officer Lewis shouted orders to Turner and told her to “stop

talking because she was going to jail” and that she “understood

[Turner] and [Turner’s] game.” After hearing of her disability and

verifying the information Turner provided with regard to previous

calls she had made to the sheriff’s department, the officers left

without arresting her, giving her a third opportunity to turn

herself in, which she did on April 21.

When Turner arrived at the Montgomery County Sheriff’s

Office with her fourteen-year-old daughter, Defendant Pechnick

instructed Turner to leave her pocketbook and accompany him, which

she did. She alleged that she was then “taken to a room,

handcuffed to a table and arrested.” Defendant Pechnick searched

her and required her to surrender all her belongings, including her

medicine and neck brace (which she carried but did not wear),

copies of pleadings she had filed with the court, and documentation

about her medical history. She alleged that Defendant Pechnick

noted her three spinal surgery scars, and commented that the scars

were “nothing, they will go away.” Defendant Pechnick arrested

Turner and transported her to a holding cell in the Montgomery

County District Court.

Turner alleged that when she asked for her neck brace and

medicine to alleviate pain and muscle spasms, Defendant Pechnick

refused her request. She asserted that she was detained for four

hours without any lunch, was in “excruciating pain and suffering

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from muscle spasms and stiffness,” and was once again denied her

medication and neck brace.

Turner asserted that she was taken to a judge who refused

to listen to her explanations and who required her to post a $100

bond, which she was unable to do at the time. She was then

transported by Deputy Sheriffs Brown and Phillips to the MCDC. She

claimed the officers refused to answer her inquiries regarding the

welfare of her child, her right to a telephone call, her medicine,

her tote bag with neck brace, an opportunity to see a doctor, and

how she could be expected to arrange bail. She asserted she was

made to sit without seatbelts facing a steel door and that the risk

of trauma from any sudden stop caused her to suffer “paralyzing

fear.”

Turner claimed that when she arrived at the MCDC, she was

again denied her medication and medical attention and was subjected

to a “prolonged period of processing.” She further asserted that

she was strip searched1 by Officer Hicks and then placed in a cell

1
Turner was given an opportunity to use the bathroom, and
while in the bathroom, Officer Hicks, a female, opened the door and
told Turner that she was going to have to take a shower and put on
jail clothes. Turner testified that she stood in a small area
where she removed her clothes, with Officer Hicks standing nearby
examining Turner’s clothes and shoes as she removed them. Officer
Hicks told Turner to “hurry up” and take her clothes off so she
could shower. According to Turner, as she stood there naked,
Officer Hicks said to her, “show me your breasts.” While Turner
was in the shower with the curtain closed, Officer Hicks brought
her a towel, throwing it over the railing. No one other than
Officer Hicks was present when Turner went into the shower stall,
and when Turner exited the shower stall, no one else was in the
room. Turner put on a jump suit that had been given to her, along
with her shoes and socks. When Turner was unable to tell Officer
Hicks whether she was wearing an underwire bra, Officer Hicks
checked the bra by touching it to determine whether it had an

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for six hours, during which time Defendants Hicks, Andrews, and

Phillips “repeatedly taunted and mocked and denied [Turner] medical

attention.” Turner claimed she continued to experience

uncontrolled pain, muscle spasms, and medication withdrawal

symptoms,2 and was taunted by Defendant Phillips, and finally

released from MCDC at 9:30 p.m. when her daughter posted the $100

bail, approximately twelve and a half hours after she first arrived

at the Montgomery County Sheriff’s Office.

Finally, Turner contended that subsequent to her release,

she wrote several letters complaining of the events. She asserted

that Defendant R. Brown contacted her and “taunted, mocked and

belittled” her. She stated that she received a letter from

Defendant Sherman which stated that the matter would be

investigated, but claimed that no corrective action was taken. She

also claimed that she received a copy of a memorandum from a

Montgomery County Council member to Defendant Wallenstein

expressing concern about Turner’s experience, but she was unaware

whether any response was received from Defendant Wallenstein.

In her original and amended complaints, Turner asserted

due process violations as a result of the policies, directives, and

training condoned by Defendants Kight, Sherman, R. Brown, Kane,

underwire, and then ordered Turner to remove it for security
reasons.
2
Officer Hicks called the medical department to alert them to
Turner’s complaints, but Turner was released before she could be
evaluated. Defendants asserted that Turner did not appear to be in
any life-threatening medical situation warranting the immediate
response of medical staff to the holding room.

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Lewis, and Wallenstein and executed by their respective employees.

She claimed that Defendants Pechnick, E. Brown, Phillips, Hicks,

and Andrews violated her due process rights by arresting her

without an opportunity to be heard, denying her medical attention,

and causing her physical and emotional suffering. She further

asserted that Montgomery County is liable for ratifying Defendants’

acts and omissions in violating her constitutional rights.

Finally, she asserted a number of state law claims.

The district court initially granted summary judgment for

all Defendants, holding that Defendants were entitled to summary

judgment on the issues of whether Turner was subjected to an

unconstitutional strip search and denied necessary medical care,

and further held that Turner failed to state a claim as to

Defendants Wallenstein and Montgomery County. The district court

then granted Turner’s motion for reconsideration on the sole issue

of the constitutionality of the alleged strip search and the

constitutionality of Officer Hicks’ conduct. Following review of

the record, the pleadings, and the counter motions for summary

judgment filed by Turner and Hicks, together with the supporting

affidavits, the district court granted judgment in favor of

Defendant Hicks. The district court later denied Turner’s motion

for reconsideration. Turner filed the present appeal.

Summary judgment is appropriate when there is no genuine

issue of material fact that could lead a trier of fact to find for

the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-48 (1986). “In determining whether to grant summary

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judgment, all justifiable inferences must be drawn in favor of the

non-movant.” Miltier v. Beorn, 896 F.2d 848, 852 (4th Cir. 1990)

(citing Anderson, 477 U.S. at 255). This Court reviews de novo a

district court’s grant of summary judgment. Higgins v. E.I. DuPont

de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988). To raise a

genuine issue of material fact, the petitioner may not rest upon

the mere allegations or denials of his pleadings. Fed. R. Civ. P.

56(e). Rather, she must present evidence supporting her position

through “depositions, answers to interrogatories, and admissions on

file, together with . . . affidavits, if any.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).

Turner’s first two claims on appeal are that the district

court erred when it ruled that her pain did not rise to the level

of a serious medical need, and further erred in finding that, even

if it did, Defendants did not deliberately disregard her serious

medical need. She asserts these findings are not supported by the

record that demonstrates that she told Defendants of her spinal

injuries, used a cane, carried a neck brace, used handicapped
transportation, carried prescription pain medication, and

repeatedly requested her neck brace and medical accommodation, and

Defendants refused her requests.

A serious medical need is one that poses a substantial

risk of serious injury to health and safety. Young v. City of
Mount Ranier, 238 F.3d 567, 576 (4th Cir. 2001). This Circuit has

further defined “serious medical need” as a medical need

“sufficiently serious . . . to require medical treatment.”

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Brice v. Virginia Beach Correctional Ctr., 58 F.3d 101, 104 (4th

Cir. 1995).

Deliberate indifference to serious medical needs of

prisoners constitutes unnecessary and wanton infliction of pain

proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S.

97, 105 (1976). “Deliberate indifference may be demonstrated by

either actual intent or reckless disregard.” Miltier v. Beorn, 896

F.2d at 851. An Eighth Amendment violation occurs where treatment

is “so grossly incompetent, inadequate, or excessive as to shock

the conscience or to be intolerable to fundamental fairness.” Id.
at 851-52. While a pre-trial detainee’s rights with respect to

claims of deliberate indifference to serious medical needs are

prohibited by the due process clause of the Fourteenth Amendment,

rather than the Eighth Amendment, with respect to such claims, a

pretrial detainee’s due process rights are co-extensive with a

convicted prisoner’s Eighth Amendment rights. Hill v. Nicodemus,

979 F.2d 987, 990-92 (4th Cir. 1992). Deliberate indifference is

a high standard, requiring more than a showing of mere negligence.
Young, 238 F.3d at 575-76.
We agree with the district court’s dismissal of Turner’s

claims of deliberate indifference to serious medical needs. First,

while Turner alleged that she endured pain and muscle spasms during

her time at the Sheriff’s Office and at MCDC, there is no evidence

that this medical need was sufficiently serious as to require

medical treatment, or that the failure to provide Turner with

medical attention resulted in substantial injury. See generally

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Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994) (in banc) (in

excessive force case, de minimis injury does not state a viable

constitutional claim). Second, there is no showing of deliberate

indifference here which would “shock the conscience.” Miltier v.

Beorn, 896 F.2d at 851. While Turner informed several of the State

Defendants that she was disabled, had been hospitalized for

injuries, walked with a cane, carried a neck brace, notified

Defendants that she had prescribed medication for chronic pain, and

showed her surgical scars, there is no evidence that the Defendants

specifically withheld Turner’s medication and/or neck brace in an

effort to deliberately or recklessly ignore an excessive risk to

Turner’s health. Farmer v. Brennan, 511 U.S. 825, 838 (1994).
While Turner subjectively complained to several of the Defendants

of pain, she was able to walk and move about. In addition, Officer

Hicks called the medical department to alert them to Turner’s

complaints, but Turner was released before she could be evaluated.

At best, the failure of the Defendants to provide Turner with her

neck brace and/or pain medication could be construed as negligence,
but such a claim is insufficient to establish liability under

§ 1983. See Young, 238 F.3d at 575-76.
Turner further asserts error in the district court’s

dismissal of her supervisory liability claims. Specifically,

Turner claimed that employees of the Montgomery County Sheriff’s

Office, Deputies E. Brown, Pechnick, and Phillips, in arresting and

detaining Turner, acted “pursuant to policies, directives, and

training” instituted by Sheriff Kight, Assistant Sheriff Sherman,

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and Deputies R. Brown, Kane, and Lewis (the “State Supervisory

Defendants”). She further asserted that the State Supervisory

Defendants had knowledge of their employees’ conduct and were

deliberately indifferent to purported constitutional injuries that

resulted during Turner’s arrest and detention. On appeal, Turner

asserts the district court erred in dismissing these claims of

supervisory liability, particularly because Defendants Pechnick, E.

Brown, and Phillips signed sworn affidavits attesting that their

actions regarding Turner were performed in compliance with

Sheriff’s office directives concerning the detention, care, and

custody of prisoners. She further asserts error in the district

court’s dismissal of her claims against Defendants Wallenstein and

Montgomery County.

Respondeat superior generally is inapplicable to § 1983

lawsuits. Monell v. Department of Soc. Servs., 436 U.S. 658, 694

(1978). To establish a viable claim for respondeat superior

liability under § 1983, Turner must demonstrate: (1) actual or

constructive knowledge of a risk of constitutional injury;
(2) deliberate indifference to that risk; and (3) an “affirmative

causal link” between the supervisor’s inaction and the particular

constitutional injury she suffered. Carter v. Morris, 164 F.3d
215, 221 (4th Cir. 1999) (quoting Shaw v. Stroud, 13 F.3d 791 (4th

Cir. 1994)).

Here, we find that Turner has not provided evidence to

establish a causal connection between a specific Sheriff’s Office

policy and a particular injury she suffered, a requisite proof

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burden to a supervisory liability claim. Shaw v. Stroud, 13 F.3d

at 791, 799 (4th Cir. 1994). As the district court held, Turner

failed to allege facts to indicate actual or constructive knowledge

of a risk of constitutional injury by Defendants Kight, Sherman, R.

Brown, or Kane. While Defendant Lewis accompanied Defendant

Pechnick to Turner’s home lawfully to arrest her, and, while there,

shouted orders to her and told her to “stop talking because she was

going to jail and that she ‘understood’ [Turner’s] game,” the

district court correctly determined that such language did not rise

to the level of a constitutional injury.

Moreover, Turner has offered no evidence, other than her

own, unsubstantiated assertions which are insufficient to overcome

summary judgment,3 that the State Supervisory Defendants had

knowledge of any risk of constitutional injury posed by persons

they supervised. Turner alleged no facts nor presented any

evidence showing that the State Supervisory Defendants gave orders,

set any policy, or failed to adequately train any of the deputies

they supervised so as to lead to a constitutional injury to Turner.
The fact that they supervised individuals who carried out Turner’s

arrest and detention in compliance with Sheriff’s Office policies

and procedures is insufficient, standing alone, to create liability

under § 1983, absent a constitutional injury.

We further agree with the district court’s dismissal of

Turner’s claims of supervisory liability on the part of Defendants

Wallenstein, Director of the Department of Correction and

3
See Mackey v. Shalala, 360 F.3d 463, 469-70 (4th Cir. 2004).

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Rehabilitation, and Montgomery County. Specifically, Turner failed

to allege that Wallenstein had any personal knowledge or

involvement in Turner’s arrest, and her vague allegations that the

MCDC employees acted under “policies, directives and training” that

were “instituted, condoned, ratified and authorized” by Wallenstein

are insufficient as a matter of law. Her failure to demonstrate

that Wallenstein had actual or constructive knowledge of the risk

of constitutional injury, that he demonstrated deliberate

indifference to that risk, or that his actions were causally

related to injury suffered by Turner is fatal to her claim against

him. See Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999).

Similarly, with regard to her claims against the County, because

Turner failed to allege specific facts related to customs,

policies, or procedures supporting a claim for violation of her

constitutional rights, we find that the district court properly

dismissed the claims. See Monell, 436 U.S. 658.

Turner’s next three claims of error involve the district

court’s determinations that Defendant Hicks’ two affidavits were
not contradictory, not an attempt to mislead the court, and not

otherwise improper such that it should grant Turner’s motion to

strike the second affidavit. The district court’s determination of

the right to present evidence is entitled to substantial deference

and will not be reversed by this Court absent a clear abuse of

discretion. Sasaki v. Class, 92 F.3d 232, 241 (4th Cir. 1996).
Here, the district court expressly considered Turner’s assertions

that the second affidavit was inconsistent with the first and was

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misleading, applied the factors as set forth in Lowery v. Stovall,

92 F.3d 219, 223 (4th Cir. 1996), and determined that Hicks’ second

affidavit provided clarity on points overlooked by the court, was

not inconsistent with the first affidavit, and was not an attempt

to mislead to court. We find no abuse of discretion shown on this

record relative to the district court’s decision to consider Hicks’

second affidavit, or in its ruling to deny Turner’s motion to

strike Hicks’ second affidavit.

Next, Turner challenges the district court’s rulings as

a matter of law that MCDC’s shower and search policy distinguishes

between temporary detainees and pretrial detainees and is not

unconstitutional. Specifically, the district court held that

“MCDC’s strip search policy is not an indiscriminate search policy

routinely applied to all detainees and is not unconstitutional.”

The district court found noteworthy the explicit provisions of

Policy and Procedure 300-18, which clearly distinguish the search

procedures to be followed for temporary detainees and those to be

followed for pre-trial detainees. The court held that, pursuant to

the provisions of the policy as well as the pleadings and

affidavits of the case, Turner’s status was that of a temporary

detainee, and not a pre-trial detainee.

Turner has offered no evidence to support her position

that the MCDC search policy is indiscriminately applied to all

detainees. Aside from the fact that the policy was incorrectly

applied to Turner, because the MCDC policy provides for explicit

distinctions between search procedures permissible for temporary

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detainees and those permissible for pre-trial detainees, and

establishes parameters for those respective searches, we find that

the district court properly determined that the policy is not

indiscriminately and routinely applied to all detainees and does

not thereby authorize unconstitutional actions.

Turner claims further that the district court erred in

ruling, as a matter of law, that Defendant Hicks made a “reasonable

mistake” when she forced Turner to submit to a search and shower as

a temporary detainee. Following a review of relevant Fourth

Circuit case law, the district court held that the intrusion in

this case was minimal, did not include significant physical

contact, and was conducted in private. The court also held that

Defendant Hicks’ negligence or carelessness in not confirming

Turner’s status prior to requiring Turner to take a shower and put

on an MCDC uniform did not violate Turner’s constitutional rights.

Mere negligence or carelessness by a correctional officer

does not constitute a constitutional violation. See, e.g.,

Daniels v. Williams, 474 U.S. 327, 332 (1986). Here, there is no
evidence supporting Turner’s claim that the search and shower to

which Hicks subjected her was anything more than an unfortunate

mistake, which occurred when Defendant Hicks failed to confirm

Turner’s status prior to undertaking procedures to process her into

the general population.

Finally, Turner argues that, assuming this Court remands

the case to the district court, the district court should

reconsider its denial of her motions for leave to file a second

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amended complaint to include class action allegations, to certify

class, and for extension of time to complete class action

discovery. Given this court’s disposition of this case on appeal,

this argument is moot.

Accordingly, we affirm the district court’s orders

dismissing Turner’s § 1983 complaint. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the Court and argument would not

significantly aid the decisional process.

AFFIRMED

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