Rodriguez v. State of Maryland

UNPUBLISHED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. (1:06-
cv-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Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Associate Justice O’Connor and Judge Agee
joined.

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Unpublished opinions are not binding precedent in this circuit.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. Plaintiffs are

Parker’s mother and father, who sued various correctional

officers, prison officials, and the State of Maryland, alleging,

inter alia, a violation of Parker’s Eighth Amendment rights

under 18 U.S.C. § 1983. The district court granted summary

judgment for defendants. 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 and drawing all

reasonable inferences in their favor. Smith v. Ozmint, 578 F.3d

246, 250 (4th Cir. 2009).

Parker and Johns were inmates in Baltimore, Maryland’s

high-security “Supermax” prison. On January 31, 2005, Parker,

Johns, and two other Supermax inmates were transported by bus to

a correctional facility in Hagerstown. While in Hagerstown,

Parker testified at a sentencing hearing for Johns. Parker

explained that he had known Johns for “[t]hree or four years”

and liked him personally. J.A. 102-03. He added, however, that

3
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 well as thirty-two other prisoners from several

Hagerstown facilities, for transportation back to Baltimore.

The bus was staffed by five correctional 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 Supermax inmates

before permitting them to board the bus. They also placed the

prisoners in three-point restraints. Officers Gaither,

Generette, Scott, and Surgeon observed the 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. One inmate had, at his request, been placed in a

protective custody cage for the trip, after receiving death

threats from Johns. Parker had not reported any such threats,

nor were any of the officers otherwise aware of any tension or

conflict between Parker and Johns.

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 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. While the bus was in transit, an inmate observed Officer

Surgeon 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. Johns had moved to sit on the

same bench as Parker. Officer Scott could see a blue shirt in

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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. For his part, Sergeant

Cooper “saw nothing unusual.” Id. at 236.

From the front of the bus, Officer Generette could see the

heads of the inmates in the rear compartment and observed

“nothing unusual or out of the ordinary.” 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. Officer Gaither called each inmate out individually.

The first two Supermax inmates emerged without incident.

Sergeant Cooper escorted them into the prison.

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 Johns was the third inmate called from his seat. He had

“red marks on his shirt” that “looked like blood.” 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.” Id. Officer Scott shook Parker and called

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. Officer

Scott enlisted the help of Officer Gaither. While the two

worked to extricate Parker, Sergeant Cooper returned from

escorting the first two Supermax inmates into the 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.” Id. at 236.

In the meantime, Officers Scott and Gaither removed

Parker’s restraints and lifted him from his seat. The officers

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carried Parker to the front of the bus. 1 Several minutes later,

they removed him from the bus and laid him down in the

Supermax’s sallyport.

While Parker was laid out in 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. After a

few minutes in the sallyport, two officers carried Parker

inside. At around 4:22 a.m., emergency medical personnel

arrived and began treating Parker. Parker was taken to

Baltimore’s Mercy Hospital, where he was pronounced dead at

4:57 a.m. Parker’s autopsy showed 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.

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Parker, Johns hooked his arm over the seat and choked Parker for

about five minutes, until he stopped moving. Johns then stood

up, moved forward, and sat down next 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 claims. Defendants removed the case to federal

district court on June 29, 2006. On February 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. In a ten-page memorandum opinion,

the court concluded that 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. Rodriguez v. Maryland, Civ. No. AMD 06-1676, at 1-2

(D. Md. July 31, 2008). As a result, the district court

dismissed plaintiffs’ federal claim and remanded their suit to

9
state court so that they could proceed on their state law

claims. Id. at 10. 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) the officers had a

“sufficiently culpable state of mind.” Farmer v. Brennan, 511

U.S. 825, 834 (1994) (internal 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.” Odom v. S.C. Dep’t. of Corr., 349 F.3d 765, 770 (4th

Cir. 2003) (internal quotations omitted). A correctional

officer is deliberately indifferent if he “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). This

subjective assessment “sets a particularly high bar 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. Plaintiffs do not

dispute that the officers received no 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. To the extent that

the officers failed to independently access available

information about Johns’s criminal history, their omission was,

at most, negligent.

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 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. Plaintiffs

cite five pieces of evidence on this essential 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 walk-

through of the bus during discovery that, plaintiffs contend,

showed it was possible to see the attack from the officers’ rear

compartment.

None of the evidence on which plaintiffs rely is

inconsistent with the officers’ assertion that they did not

witness the attack. 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 could have seen the attack is insufficient to

support the inference that they actually witnessed it. As

plaintiffs’ counsel conceded at oral argument, there is 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’ reliance on Odom highlights the weakness of

their claim. In Odom, the defendant 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 Parker’s ultimately fatal injuries after they

discovered him unconscious on the bus. Parker’s “serious

medical condition” satisfies the objective prong of the Eighth

Amendment inquiry. Johnson v. Quinones, 145 F.3d 164, 167 (4th

Cir. 1998). Plaintiffs’ claim again turns on whether the

officers were deliberately indifferent to his injuries. In

order to prove deliberate indifference, plaintiffs must 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. They rely heavily on a video that

shows roughly five 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 together to free Parker from his restraints,

extricate him from his seat, and move him off 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 medical deliberate

indifference).

16
 Further, plaintiffs’ lurid description of the events

depicted on video is misleading. At the outset of the video, a

correctional officer states that emergency personnel are en

route. In the intervening minutes, as shown on the recording,

correctional officers sought a sheet or blanket for Parker,

shone a light in his eyes to gauge his responsiveness, and

repeatedly took his pulse. In other words, the video does not

support plaintiffs’ claim 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 of actions not taken

sounds entirely in negligence. 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, 630-
31 (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

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