Head v. Rakowski

695 F.Supp.3d 663

Charles HEAD, Plaintiff, v. Captain R. RAKOWSKI, Jr., et al., Defendants.

Civ. No. JKB-22-00566

United States District Court, D. Maryland

Signed September 29, 2023

Charles Head, Littleton, CO, Pro Se.

Vickie LeDuc, U.S. Attorney Office, Baltimore, MD, for Defendants.

MEMORANDUM

James K. Bredar, Chief Judge.

While incarcerated at the Federal Correctional Institution ("FCI") in Cumberland, Maryland, Charles Head initiated the above-captioned civil rights action. (ECF No. 1.) In the operative Amended Complaint filed on October 25, 2022, Plaintiff raises claims pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2674 ("FTCA") against Federal Bureau of Prisons ("BOP") Captain Ricky Rakowski, Jr. and the United States of America. (ECF No. 17.) He alleges violations of the Eighth Amendment's guarantee against cruel and unusual punishment, and the torts of battery, assault, negligence, and malicious prosecution. (Id. at 5.) The allegations largely relate to events occurring in February 2022 at FCI Cumberland. Plaintiff seeks a declaratory judgment as well as monetary and injunctive relief. (Id. at 5-6.)

On February 13, 2023, Defendants filed a Motion to Dismiss the Amended Complaint, or in the Alternative, for Summary Judgment. (ECF No. 26.) (hereinafter Dispositive Motion). In the Dispositive Motion, Defendants raise a host of defenses, including mootness, res judicata, failure to exhaust, qualified immunity, the discretionary function exception to the FTCA, immunity under 28 U.S.C. § 2680(f), failure to state a claim, and the FTCA's judgment bar.¹ (See generally ECF No. 26.) The Court informed Plaintiff, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that the failure to file a response in opposition to the motion could result in dismissal of the Amended Complaint. (ECF No. 27.) Due to a delay in Plaintiff's receipt of Defendants' Motion, the Court granted him additional time to respond, (See ECF No. 33.) On August 23, 2023, Plaintiff moved for leave to file a Second Amended Complaint, and Defendants opposed the request. (ECF Nos. 35, 36.) Plaintiff has not filed any opposition to Defendant's Motion to Dismiss or for Summary Judgment, and the deadline to respond has passed. (See ECF No. 33.)

No hearing is necessary. See Local Rule 105.6 (D. Md. 2023). For the reasons set forth below, Plaintiff's Motion for Leave to File a Second Amended Complaint will be denied, and Defendants' Dispositive Motion, construed as one for summary judgment, will be granted in part and denied in part. In short, the Court will dismiss or grant summary judgment to Defendants with respect to many of Plaintiff's claims, stay proceedings with respect to Plaintiff's claims relating to COVID-19, and deny summary judgment with respect to Plaintiff's claims against the United States for assault and battery under the FTCA. The Court will also appoint counsel for Plaintiff.

I. Background

The following allegations are taken from Plaintiff's verified First Amended Complaint. (ECF No. 17) Because the First Amended Complaint is verified, it serves as an affidavit for purposes of summary judgment to the extent it is based on Plaintiff's personal knowledge, see Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021), and the Court assumes the allegations therein to be true at this procedural posture, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.").

Plaintiff states that he suffers from several medical conditions that render him "extremely vulnerable" to COVID-19 infections, including asthma, a heart valve condition, and a high body mass index. (ECF No. 17 at 2.)² In January 2022, he filed several requests for administrative remedy regarding "the FCI Cumberland prison administration's failure to follow BOP policy and procedures concerning the COVID-19 virus and ongoing pandemic." (Id. at 1.) On February 3, 2022, while assigned to a COVID-19 "quarantined unit," Captain Rakowski arrived at Plaintiff's cell. (Id. at 2.) Although BOP directives required Captain Rakowski to wear personal protective equipment including a gown, face shield, N-95 mask, and gloves, Captain Rakowski wore only a "blue surgical mask." (Id.) Upon entering Plaintiff's cell, Captain Rakowski removed his mask and warned Plaintiff against filing additional grievances. (Id.) Captain Rakowski then "clenched his fists, stepped toward plaintiff and swung," before "breaking items in the cell." (Id.)

Thereafter, Captain Rakowski told Plaintiff to exit his cell so that he could be searched before being transferred to the segregated housing units ("SHU") for allegedly violating prison policy. (Id.) In so doing, Captain Rakowski falsified an incident report. (Id.) During the ensuing search, Captain Rakowski pushed Plaintiff in the head and pulled Plaintiff's hair. (Id.)

Before being transferred to the SHU, Plaintiff asked Captain Rakowski to allow him to take his contact lenses and prescription depression medication, but his request was denied. (Id. at 3.) Captain Rakowski seized eight bags of Plaintiff's property and either held them for an extended period of time or failed to return them to Plaintiff. (Id.) In the SHU, Plaintiff was assigned to cells that had been occupied by COVID-positive inmates but not sanitized. (Id.) Once again, Captain Rakowski falsified an incident report against Plaintiff, leading to loss of his good time credits. Plaintiff requested grievance forms; however, SHU staff did not provide any. (Id. at 4.)

In the time since he initiated this action, Plaintiff has been moved to several different prisons and currently is incarcerated at FCI Englewood in Littleton, Colorado. (ECF No. 30.)

II. Motion for Leave to File a Second Amended Complaint

Plaintiff seeks leave to file a Second Amended Complaint asserting that, pursuant to Fed. R. Civ. P. 15(a)(1)(B), the Court should allow him to amend because he filed the Motion within 21 days of receiving Defendants' Dispositive Motion. (ECF No. 35.) The relevant portion of Rule 15(a)(1)(B) provides: "A party may amend its pleading once as a matter of course within ... 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Plaintiff initiated the instant action on March 9, 2022 (ECF No. 1), then amended his Complaint on October 25, 2022 (ECF No. 17), after Defendants filed a Motion to Dismiss or for Summary Judgment (ECF No. 15). As Plaintiff has already amended his pleading "once as a matter of course," he can no longer rely on Rule 15(a)(1)(B) in attempting to file a Second Amended Complaint.

"In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Defendants have not consented to the proposed amendment. (See ECF No. 36.) Nor does justice require leave to amend in this case.

As previously noted, Plaintiff filed his initial Complaint eighteen months ago and amended it nearly a year ago. Meanwhile, Defendants have twice responded to Plaintiff's claims. From the proposed amendment, it is unclear what changes Plaintiff intends to make. Plaintiff does not specify whether he is adding or deleting any facts or claims; nor does he provide any reasons for his request. (ECF No. 35.) Furthermore, the proposed second amended complaint appears substantially identical to the operative complaint. (Compare ECF No. 17 with ECF No. 35-2.) Given Plaintiff's lack of explanation for his need to amend and in light of Defendants' opposition, as well as the length of time that this case has been pending, Plaintiff's Motion for Leave to File a Second Amended Complaint will be denied. See Island Creek Coal Co. v. Lake Shore, Inc., 832 F.2d 274, 279 (4th Cir. 1987) (stating that undue delay, bad faith or dilatory motive warrant denial of leave to amend).

III. Standards of Review

"Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts are limited to considering the sufficiency of allegations set forth in the complaint and the 'documents attached or incorporated into the complaint.'" Zak v. Chelsea Therapeutics Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011)). However, if the motion is in the alternative a motion for summary judgment a court may in its discretion consider matters outside of the pleadings pursuant to Rule 12(d). See Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F. Supp. 2d 431, 436-37 (D. Md. 2011). If the court does so, generally "the motion must be treated as one for summary judgment under Rule 56," and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d); see Adams Hous., LLC v. The City of Salisbury, Maryland, 672 F. App'x 220, 222 (4th Cir. 2016) (per curiam).³ A plaintiff may defeat summary judgment at this stage by filing an affidavit under Rule 56(d) attesting to his need to conduct discovery. Pevia v. Hogan, 443 F. Supp. 3d 612, 627 (D. Md. 2020). But, especially in the case of a pro se litigant, the Court may excuse failure to file an affidavit if the plaintiff adequately informs the Court of his need to conduct discovery before responding to the summary judgment motion. Id. (citing Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244-45 (4th Cir. 2002)).

Here, Defendants filed a Motion titled "Motion to Dismiss the Amended Complaint, or in the Alternative, for Summary Judgment" and submitted additional materials in support. The Court provided a notice to Plaintiff that "a ...