Head v. The United States of America

OCR transcription for search; preserved printed pages are authoritative

Case 1:22-cv-00566-JKB Document 108 Filed 03/04/26 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

CHARLES HEAD, -
Plaintiff, *
v. —— * Civ. No. JKB-22-00566

CAPTAIN R. RAKOWSKI, JR., ef al., *

’ Defendants. *

x * * * * * * * * * * *

MEMORANDUM

Plaintiff Charles Head initiated the above-captioned case on March 9, 2022, while
incarcerated at the Federal Correctional Institution (“FCI”) in Cumberland, Maryland. (ECF No.
1.) In the operative Amended Complaint, Plaintiff alleges that Defendant Captain R. Rakowski,
Jr. and other officials at FCI Cumberland violated his constitutional rights under the First and
Eighth Amendments and committed the torts of assault, battery, negligence, gross negligence,

intentional infliction of emotional distress, and abuse of process. (ECF No. 92.) Plaintiff seeks to

vindicate his rights pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971), and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2647 (“FTCA”), respectively.
Ud.)

Now pending before the Court is Defendants United States of America and Captain R.
Rakowski, Jr.’s Motion to Dismiss or, in the Alternative, for Summary Judgment. (ECF No. 97.)
The Motion has been fully briefed (see ECF Nos. 102, 107) and no hearing is required. See Local
Rule 105.6 (D. Md. 2025), For the reasons set forth below, the Motion will be granted in part and

denied in part: Plaintiff’s Bivens claims and his FTCA claims for intentional infliction of emotional

AUTHENTICATED
U.S. GOVERNMENT

INFORMATION ~~
GPO

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distress and abuse of process will be dismissed, but his FTCA claims for assault, battery,
negligence, and gross negligence will proceed.

I. Background

Plaintiff’s factual allegations concern events occurring at FCI Cumberland in February 2022.
(See generally ECF No. 92.) Plaintiff alleges that after he complained about the failure of prison
staff to follow. then-applicable policies and procedures concerning the ongoing COVID-19
pandemic, Defendant Rakowski and other staff retaliated against him for complaining. (/d.) . They
did so, Plaintiff alleges, through a number of different means, including pushing his head and .
pulling his hair, intentionally exposing him to COVID-19 despite knowing he was particularly
susceptible to the virus, depriving him of his contact lenses and medication for several weeks,
filing false disciplinary reports against him, and depriving him of access to grievance forms that
were needed to address this misconduct. (/d.)

The procedural history of this case is lengthy, and the Court will not recount it exhaustively
herein. The following, however, is relevant for present purposes. Plaintiffs original Complaint
was filed pro se on March 9, 2022, shortly after the February 2022 events alleged as described
above. (ECF No. 1.) On October 25, 2022, Plaintiff filed an Amended Complaint, which alleged
both FTCA claims and Bivens claims. (ECF No. 17.) |

Defendants filed a Motion to Dismiss or, in the Alternative, for Summary Judgment, and on
September 29, 2023, the Court granted it in part and denied it in part. (ECF No. 37.) The Court
made rulings in four categories. First, the Court dismissed Defendant Rakowski as an individual
defendant. (/d. at 14.) Second, the Court dismissed several of Plaintiffs claims: two FTCA claims
for malicious prosecution, and three Eighth Amendment Bivens claims. (/d. at 25, 35, 37.) Third,

the Court held that Plaintiffs FTCA claims for assault and battery could proceed against Defendant

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United States. (id. at 14, 22.) And fourth, the Court stayed Plaintiff’s claims concerning COVID-
19 exposure—an FTCA claim for negligence and an Eighth Amendment Bivens claim—pending
final judgment in a separate case with overlapping allegations (ead v. United States, Civ. No. 22-
00238 (“Head IF’)'). (Id. at 12-13.) In addition to these substantive rulings, the Court appointed
pro bono counsel to represent Plaintiff. (ECF No. 38.)

On September 3, 2024, after Head [I was dismissed; the Court lifted the stay of Plaintiff’s
COVID-19 claims and granted Defendants’ motion to dismiss them. (ECF No. 65 at 9-11.) After
this ruling, only Plaintiff’s FTCA claims for assault and battery against the United States remained
pending in this action.

At the Court’s direction, the parties undertook limited discovery regarding the question of
whether Plaintiff exhausted his administrative remedies on the assault and battery claims. (ECF
Nos. 38, 44, 50.) While no comprehensive Scheduling Order was entered, the parties’ status
reports suggest that some amount of discovery concerning the merits of the assault and battery
claims may have been conducted as well. (See, e.g., ECF No. 53 {1 (reflecting discovery of video
evidence); ECF No. 56 § 1 (reflecting depositions).) Nevertheless, the Court subsequently stated
that further discovery as to the merits of these claims may be necessary if a dispositive motion on
the issue of exhaustion was not granted. (ECF No. 68.)

Defendants filed a dispositive motion on the exhaustion of the assault and battery claims
(ECF No. 69), but before it was fully briefed, the parties jointly moved, on December 17, 2024, to
consolidate this action with yet another overlapping case (Head v. United States, Civ. No. 23-

02973 (“Head IV’)). (ECF No. 76.) When the Motion to Consolidate was filed, a Motion to

1 “Head P (Head v. Beard, Civ. No. 22-00189) was a habeas petition challenging unrelated events alleged to have
taken place in November 2020. This petition was dismissed in February 2023. 2023 WL 2023217, at *1 (D. Md. Feb.
13, 2023). The instant case, Civ. No. 22-00566, is “Head If].”

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Dismiss or, in the Alternative, for Summary Judgment had been filed in Head IV, but not ruled on,

and no discovery had been conducted.
The Court granted the Motion to Consolidate Cases, denied without prejudice all’ pending
motions in either case, and ordered Plaintiff to file a new Amended Complaint limitéd to the

allegations and claims from either case that had not been dismissed with prejudice or subject to an

adverse summary judgment ruling. (ECF Nos. 79, 84.) That Amended Complaint (ECF No. 92)
is now operative and pleads FTCA claims for assault, battery, negligence,” gross negligence,
intentional infliction of emotional distress, and abuse of process against the United States, and
First and Eighth? Amendment Bivens claims against Captain Rakowski.

Defendants filed, and the Court will consider herein, another Motion to Dismiss ar, in the
Alternative, for Summary Judgment, addressing the now-operative Amended Complaint. (ECF
) No. 97.) Defendants argue that Plaintiff's FTCA claims fail for a variety of reasons, including that
Plaintiff failed to exhaust his administrative remedies; that the Court lacks jurisdiction pursuant ta

the discretionary function and/or quarantine exceptions to the FTCA’s waiver of sovereign

immunity; that Plaintiff has not plausibly pled essential elements of each claim; and that even if

t

\t
Plaintiff’s pleadings had been adequate, the undisputed evidence establishes that Defendants’
. 4

? Plaintiff’s pending FTCA negligence | claim i is based on different factual allegations than his previously;dismissed
FTCA negligence claim: the current claim is based on allegations | concerning Plaintiff’s contact lenses and medicine
having been withheld (ECF No. 92 at 16), whereas the prior claim was based on allegations about exposure to COVID-
19 (ECF No, 17 at 5), Thus, inclusion of this claim in Plaintiff’s Amended Complaint does not violate the Court’s
instruction to limit the Amended Complaint to claims not already dismissed with prejudice or subject to an adverse
summary judgment ruling. ‘
3 Plaintiff’s pending Eighth Amendment Bivens claim is substantially the same as the previous Eighth Amendment
Bivens claim on which the Court previously granted summary judgment. (Compare ECF No. 92 { 61, with ECF No.
1740.) Thus, this claim does, on its face, violate the Court’s order limiting the claims that may be included i in the
Amended Complaint. However, Plaintiff explains that he included this claim in the Amended Complaint i in lieu of
filing a motion for reconsideration in light of a subsequently decided Fourth Circuit case, Fields v. F ederal: Bureau of
Prisons, 109 FAth 264 (4th Cir. 2024), which the Court had held, before consolidating cases, “may become
‘ appropriate.” (See ECF-No. 102 at 38 n.12; ECF No. 68.) In any event, as is described further below, Plaintiff now —
withdraws his Bivens claim, abrogating any need for the Court to decide whether including this claim in the Amended
Complaint was the appropriate means by which to seek reconsideration.

4 |

;
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conduct was not tortious. (/d.} Defendants argue that Plaintiff *s Bivens claims also fail for several
reasons, including that Plaintiff failed to exhaust his administrative remedies; that because the
FTCA claims fail, the FTCA’s judgment bar precludes the Bivens claims; and that even if they are
not barred, these claims are impermissible extensions of the Bivens doctrine. (/d.) |
Plaintiff's response brief voluntarily withdraws his Bivens claims but defends his FTCA
claims against Defendants’ arguments. (ECF No. 102.) Defendants also filed a reply in support
of their motion. (ECF No. 107.)
II. Legal Standards
| Defendants seek dismissal pursuant to Rules 12(b)(1). and/or 12(b)(6), Federal Rules of
Civil Procedure, for lack of subject-matter jurisdiction and/or failure to state a claim upon which
relief can be granted—or, in the alternative, pursuant to Rule 56, because there is no genuine
dispute as to any material fact and Defendants are entitled to judgment as a matter of law,
A. Motions to Dismiss for Failure to State a Claim under Rule 12(b)(6)
When considering a motion to dismiss for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b){6), the Court must “accept as true all well-pleaded allegations vad view

the complaint in the light most favorable to the plaintiff.” Venkatraman v. REI Sys., Inc., 417 F.3d

418, 420 (th Cir. 2005). Viewed through that lens, “a complaint must contain sufficient factual

4
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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroftv. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” /d. at 662. A
“pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action will not do.”” Jd at 678 (quoting Twombly, 550 U.S. at 555, 557). However, a’plaintiff

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need not include “detailed factual allegations,” Twombly, 550 U.S. at 555, and federal pleading
rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory
supporting the claim asserted,” Johnson v. City of Shelby, 574 U.S. 10, 11 (2014). “A court decides
whether [the pleading} standard is met by separating the legal conclusions from the factual
allegations, assuming the truth of only the factual allegations, and then determining whether those
allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy
sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011).
B. Motions for Summary Judgment Under Rule 56 .

To prevail on a motion for summary judgment pursuant to Federal Rule of Civil Procedure
56, the movant must show that there is no genuine dispute as to any material fact and that she is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In proving the presence or absence
of a genuine dispute, either party may point to materials in the record, such as admissions,
stipulations, depositions, documents, and electronically stored information. Fed. R. Civ, P. 56(c).
The moving party has the burden of demonstrating the absence of any genuine dispute of material
fact. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). If the movant meets this burden,
then the nonmoving party cannot rest on mere denials but must point to specific facts showing
there is a genuine triable issue in the case. Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d
514, 525 (4th Cir. 2003). In determining whether a genuine dispute exists, the Court views the
evidence in the light most favorable to the nonmoving party and draws all reasonable inferences
in that party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986); Tolan v. Cotton, 572

U.S. 650, 657 (2014) (per curiam),

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C. Motions to Dismiss for Lack of Subject Matter Jurisdiction Under Rule
12(b)(1)

The standard courts apply in evaluating a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) depends on the nature of the challenge. Kerns v. United States,
585 F.3d 187, 192-93 (4th Cir. 2009). Where the motion asserts that the allegations stated in the
complaint, even if true, are insufficient to establish the Court's subject matter jurisdiction, then the
Court assumes the truthfulness of the facts alleged and applies a standard patterned on Rule
12(b)(6). Jad. If, on the other hand, the 12(b)(1) motion asserts that the jurisdictional facts alleged
in the complaint are false, then the burden of proving subject-matter jurisdiction is on the plaintiff
and the Court is to regard the pleadings’ allegations as mere evidence on the issue. Jd. The Court
then applies the summary judgment standard, under which the nonmoving party must set forth
specific facts beyond the pleadings to show that a genuine issue of material fact exists, and the
moving party should prevail only if the material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of law. /d.

D. | Motions to Dismiss or, in the Alternative, for Summary Judgment Under
Rule 12(d)

In evaluating a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), or
in the alternative for summary judgment pursuant to Rule 56, Rule 12(d) applies. Fed. R. Civ. P.
12(d). Under Rule 12(d), if the Court, in ruling on the motion, considers materials outside the
pleadings, then the motion must be construed as one for summary judgment under Rule 56, and
all parties must be given a reasonable opportunity to present all the material that is pertinent. A
nonmoving party can show that she has nof had a reasonable opportunity to present all pertinent
material—and that the Court must disregard materials outside the pleadings and construe the

motion as seeking dismissal under Rule 12(b)(6)—by filing a Rule 56(d) affidavit showing that

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“for specified reasons,” she “cannot present facts essential to justify [her] opposition.” Fed. R.
Civ. P. 56(d). However, a Rule 56(d) request for discovery may be properly denied “where the
additional evidence sought for discovery would not have by itself created a genuine issue of
material fact sufficient to defeat summary judgment.” Strag v. Bd. of Trustees, Craven Cnty. Coll.,
55 F.3d 943, 954 (4th Cir. 1995); see McClure v. Ports, 914 F.3d 866, 874—75 (4th Cir. 2019).
TI. Analysis |
A. Bivens Claims
Plaintiff “withdraws his two Bivens claims” in light of the Supreme Court’s decision in
Goldey v. Fields, 606 U.S. 942 (2025). (ECF No, 102 at 38.) As these were the only claims
Plaintiff advanced against Defendant Rakowski, Plaintiff “consents to Captain Rakowski’s
dismissal as an individual defendant.” (Jd at 38 n.2.) Accordingly, the Court will dismiss
Plaintiff’s Bivens claims and will dismiss Defendant Rakowski from this action.
B. FTCA Claims
As the Court has previously explained:
“The FTCA provides a limited waiver of sovereign immunity for civil actions against
the United States.” Seaside Farm, Inc. v. United States, 842 F.3d 853, 857 (4th Cir.
2016). The statute “permits the United States to be held liable in tort in the same
respect as a private person would be liable under the law of the place where the act
occurred.” Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001). To.bring a
claim under the FTCA, the plaintiff must allege that the claim is: : .
“(1] against the United States, [2] for money damages, . . . [3] for injury or
loss of property, or personal injury or death, [4] caused by the negligent or
wrongful act or omission of any employee of the Government [5] while
acting within the scope of his office or employment, [6] under
circumstances where the United States, if a private person, would be liable

to the claimant in accordance with the law of the place where the act or
omission occurred.”

Brownback v. King, 592 U.S. [209], 141 S. Ct. 740, 746 (2021) (alterations in original)
(quoting FDIC v. Meyer, 510 U.S. 471, 477 (1994) (quoting 28 U.S.C. § 1346(b))).
All six elements are jurisdictional requirements that a plaintiff must plausibly allege

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both to state a claim and to establish subject matter jurisdiction. Jd. at 749. To

determine whether the sixth element is satisfied, the Court must look to state

substantive law to determine whether the defendant would be liable for the alleged

conduct if the defendant had been a private individual at the time of the conduct. See.

Pledger y. Lynch, 5 F.4th 511, 522-523 (4th Cir. 2021).
(ECF No. 37 at 17.) Two of Plaintiffs FTCA claims—for abuse of process and intentional
infliction of emotional distress—will be dismissed for failure to state a claim under Maryland law,
and because this element of an FTCA claim is also jurisdictional, for failure to establish subject
matter jurisdiction. Plaintiff’s other FTCA claims—for negligence, gross negligence, assault, and
battery—will proceed.

1. Abuse of Process

Plaintiff alleges that Defendant United States is liable for abuse of process because.
“Captain Rakowski willfully used the processes of FCI Cumberland to file false incident reports
and complaints against Plaintiff... [which] caused Plaintiff to lose his good time credits... [and
which] were submitted for the ulterior motive of retaliating against Plaintiff ....” (ECF No. 92 {
60.) Defendant United States argues that this claim must be dismissed (1) because Plaintiff failed —
to exhaust his administrative remedies as to this claim, and/or (2) because Plaintiff’s allegations
are insufficient to state an abuse of process claim under Maryland law. (ECF No. 97-1 at 45.)

As the Court previously explained:

The FTCA “requires that before an action may be commenced in court, the claimant

must “present” his claim to the appropriate administrative agency for determination.” _

‘Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994) (quoting 28 U.S.C. § 2675(a)).

... [T]he requirement of filing an administrative claim is jurisdictional and may not

be waived.” Kokotis v. U.S. Postal Serv., 223 F, 3d 275, 278 (4th Cir. 2000) (quoting

_ Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986)).

(ECF No. 37 at 14.) Plaintiff's administrative tort claim, dated May 26, 2023, and received on .
June 13, 2023 (ECF No. 97-2 at 180), satisfied the FTCA’s presentment requirement, giving the

government adequate notice to properly investigate the underlying incidents at issue in Plaintiff’s

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abuse of process claim and placing a sum certain on the claim’s value. See Kornegay v. United
States, 802 F. Supp. 3d 767, 787 (D. Md. 2025). “The FTCA was not intended as a trap for the
‘unwary claimant,” and ‘the purpose of 28 U.S.C. § 2675(a) is to provide notice to the relevant
federal agency of claims, not to put up a barrier of technicalities to defeat their claims.’” Starr v.
United States, 262 F. Supp. 2d 605, 607-08 (D. Md. 2003). Although Plaintiff's administrative
claim alleged malicious prosecution rather than the distinct tort of abuse of process, see One
Thousand Fleet Ltd. vy. Guerriero, 694 A.2d 952, 956 (Md. 1997) (distinct torts), the FTCA does
not require a claimant to enumerate any specific cause of action to give the government adequate
notice to investigate, so long as the underlying incident is sufficiently well described. See Neal yv.
United States, 599 F. Supp. 3d 270, 312 (D. Md. 2022), The government had such notice here,
and thus, the government’s first argument fails.

However, the Court agrees with the government that Plaintiff has failed to state a claim for
abuse of process. In Maryland, “[tJhe tort of abuse of process ocours when a party has wilfully |
misused criminal or civil process after it has issued in order to obtain a result not contemplated by
| law.” One Thousand Fleet, 694 A.2d at 956 (quoting Krashes v, White, 341 A.2d 798, 802 (Md.
1975). | |

Whether Plaintiff has stated a claim for abuse of process here turns on whether the prison
disciplinary proceedings Captain Rakowski initiated against him qualify as the relevant kind of
“process’”—a “criminal or civil process”—the abuse of which can be tortious under Maryland law.
The Court has already held that prison disciplinary proceedings do not constitute criminal
proceedings in the pertinent sense despite inmates’ entitlement to certain due process rights. (ECF
No. 37 at 24.) Similarly, the Court now finds that neither are such proceedings civil for purposes

of this tort. Plaintiff’s only argument to the contrary is that inmates are entitled to due process

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protections during prison disciplinary proceedings, but just as this alone does not render such
proceedings criminal in the pertinent sense, neither does it render them civil. Plaintiff does not
cite, and the Court has not identified, any binding decision that squarely addresses this issue, but
the Court is persuaded by district court decisions from other jurisdictions that support the view
that prison disciplinary proceedings are not civil processes for purposes of this tort. See, e.g.,
Carter y, Stith, No. 3:22-cv-775, 2024 WL 477985, at *21 (E.D. Va. Feb. 7, 2024) (stating that
prison disciplinary proceedings “are not legal procedures enforced by a judicial authority covered
by th[e] tort [of abuse of process]”}; Neil v Wells Fargo Bank, No. 1:13-CV-0644, 2015 WL
4459090, at *4 (E.D. Va. July 20, 2015) (“‘Process,’ as used in [the tort of abuse of process], is
synonymous with ‘legal process’ or ‘judicial process,’ and refers to a compulsory issuance by a
court.”); Greer v. DeRobertis, 568 F. Supp. 1370, 1376 (N.D. Ill. 1983) (holding in the context of
a malicious prosecution claim, that the requirement of a “criminal or civil judicial proceeding”
“cannot be relaxed to embrace prison disciplinary proceedings”). Therefore, the Court declines to
extend the reach of this tort to cover prison disciplinary proceedings, and accordingly, Plaintiff’s
abuse of process claim will be dismissed.
2. Intentional Infliction of Emotional Distress

Plaintiff alleges that Defendant United States is liable for intentional infliction of emotional

distress (“ITED”) because:
Captain Rakowski exposed Plaintiff to COVID-19 by failing to wear personal

protective equipment; placing Plaintiff in cells occupied by inmates-with COVID-19

or suspected of being exposed to COVID-19; and otherwise exposing or attempting to

expose Plaintiff to COVID-19. Captain Rakowski did so knowingly and/or recklessly.

Captain Rakowski knew that Plaintiff was previously ill with COVID-19, and that

Plaintiff was particularly susceptible to serious illness if he contracted COVID-19

again. That was extreme and outrageous conduct that caused [Plaintiff] to fear he

would contract COVID-19 and die given his comorbidities and health conditions.

[Plaintiff] spent weeks in the SHU in severe emotional distress fearing that he would
contract COVID-19 again and potentially die from the illness.

ll

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{ECF No. 92 9 59.) Defendant United States argues that this claim must be dismissed because,
inter alia, Plaintiff's allegations are insufficient to state an IIED claim under Maryland law. (ECF
No. 97-1 at 44.) The Court agrees.

“[I]n order to prevail on a claim for ITED, a plaintiff rust show that (1) the defendant's
conduct was intentional or reckless; (2) her conduct was extreme and outrageous; (3) there was a
causal connection between the defendant’s wrongful conduct and the emotional distress suffered,
and (4) the emotional distress was severe.” Greene v. United States, No. 21-cv-978-ELH, 2022
WL 911204, at *11-12 (D. Md. Mar, 29, 2022) (citations omitted). Claims for IIED are
“disfavored, difficult to establish, and, as such, rarely viable.” /d. (citations omitted). To satisfy
the second element, “[t]he defendant’s conduct must be so extreme in degree as to go beyond all
possible bounds of decency, and to be regarded as atrocious and utterly intolerable ina civilized
community”—it “must strike to the very core of one’s being, threatening to shatter the frame upon
which one’s emotional fabric is hung.” Jd. (citations omitted), Even “proof of a constitutional
violation is not enough to establish extreme and outrageous conduct.” Annappareddy v. Lating, .
No. 1:18-CV-03012-JEA, 2023 WL 2540306, at *17 (D. Md. Mar. 16, 2023). Further, as to the
fourth element, “the balm of IIED recovery is to be reserved for those wounds that are truly severe
and incapable of healing themselves.” Jd Mere emotional distress and mental anguish are not
enough—rather, the emotional distress must be “severely disabling” and “so acute that no
reasonable man could be expected to endure it.” Farasat v. Paulikas, 32 F. Supp. 2d 244, 248 (D.
Md. 1997) (citations omitted). Lacking allegations that the plaintiff was “treated by a physician
for his mental anguish, ... hospitalized because of a severely disabling emotional condition, that
he lost sleep or weight, or that he was unable subsequently to live a normal life,” for example, a

plaintiff fails to state a claim. Jd.

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Defendants’ alleged conduct—knowingly and/or recklessly attempting to expose Plaintiff
to COVID-19 in retaliation for his having filed a grievance—is surely reprehensible. Nevertheless,
the Court finds that it falls short of the high bar required for “extreme and outrageous” conduct
made actionable through an IIED claim. Similarly, Plaintiff’s alleged emotional distress—his
“fear[] that he would contract COVID-19 again and potentially die’—-may well be serious and
regrettable, but it is nevertheless inadequate to state a claim for relief here. Thus, Plaintiff’s TED
claim will be dismissed.’

3. Assault and Battery

Plaintiff alleges that Defendant United States is liable for assault because “Captain Rakowski
intentionally swung his fist toward Plaintiff with the intent to put Plaintiffin fear .. . [and] smashed
items in Plaintiff’s cell, [which] caused Plaintiff to fear and apprehend imminent harmful bodily
contact” (ECF No. 92 4 52), and for battery because “Captain Rakowski intentionally struck
Plaintiff in the head and pulled on his dreadlocks without Plaintiff's consent and without any
penological cause” (id. 51). Defendant United States argues that these claims fail (1) because |
they are barred by the discretionary function exception to the FTCA (ECF No. 97-1 at 22-28), (2)
- because the allegations are insufficient to state a claim under Maryland law (id. at 29-31), and/or
(3) because the undisputed facts establish that Defendant’s conduct was not tortious as a matter of
law (id. at 31-33). The Court rejects all three arguments. |

Turning first to the discretionary function exception, the Court has previously explained that

this exception

4 The Court declines to reach the government’s alternative arguments that Plaintiff's IIED claim should be dismissed
pursuant to the discretionary function exception and the quarantine exception to the FTCA. (See ECF No. 97-1 at 4[-
44.) While the Court recognizes that these arguments go to the Court’s subject-matter jurisdiction, which is ordinarily
addressed before evaluating the merits of a claim, in the unique context of the FTCA, where “pleading a claim and
pleading jurisdiction entirely overlap,” the Court can first decide an element of the FTCA claim on the merits, as it
does here. Brownback, 592 U.S. at217.

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provides that there is no waiver of sovereign immunity [under the FTCA] for “[a]ny
claim based upon an act or omission of an employee of the Government, . . . based
upon the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).

To determine whether the discretionary function exception applies, the Court must
engage in a “two-step analysis.” Sanders v, United States, 937 F.3d 316, 328 (4th Cir.
2019) (quoting Wood v. United States, 845 F.3d 123, 128 (4th Cir. 2017)). First, the
Court must determine whether “a statute, regulation, or policy specifically prescribes”
the employee’s course of action (in which case the “conduct cannot be discretionary”)
or whether the conduct “involves an element of judgment or choice” (in which case
the conduct may be discretionary). Berkovitz by Berkovitz v. United States, 486 U.S.
531, 536 (1988), Second, “[i]f the challenged conduct ‘is the product of judgment or
choice,’ this Court must then ‘determine whether the decision made was based on
considerations of public policy.’” Sanders, 937 F.3d at 328 (quoting Wood, 845 F.3d
at 128).

(ECF No. 37. at 17-18.) The government argues that because “Captain Rakowski’s actions . . .
involved an element of judgment or choice and were not subject'to a mandatory directive” (ECF
No. 97-1 at 25) and “were inherently grounded in policy considerations” (id at 28), the
discretionary function exception deprives the Court of jurisdiction over Plaintiff’s assault and
battery claims (id).

The Court previously considered substantially the same argument in ruling on the
government’s pre-consolidation Motion to Dismiss or, in the Alternative, for Summary Judgment,
and the Court rejected the argument then. (ECF No. 37 at 20-22.) The Court explained:

Prisoners have a constitutional “right to file a prison grievance free from retaliation.”
Booker v. S.C. Dept of Corrs., 855 F.3d 533, 545 (4th Cir. 2017). And “[flederal
officials do not possess discretion to violate constitutional rights or federal statutes.”
Medina, 259 F.3d at 225 (alteration in original) (quoting U.S. Fid. & Guar. Co. v.
United States, 837 F.2d 116, 120 (3d Cir. 1988)). On the record before it, the Court
cannot conclude whether Captain Rakowski’s actions on February 3, 2022 comprised
unlawful retaliation or a legitimate exercise of authority. So, the Court finds that the
first step of the Berkovitz test is not satisfied and concludes that the discretionary

function exemption does not deprive the Court of subject matter jurisdiction at this
stage of the litigation.

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(id. at 21.) The Court reaches the same conclusion here. To be sure, the record now before the
Court is different than the record it evaluated previously. (See ECF No, 97-1 at 25 n,.7.) But none
of the record materials do away with the basic dispute over whether Captain Rakowski’s actions
were retaliatory. Even if Plaintiff concedes that a prison rule was violated in his cell and further
witness statements concur, Plaintiff certainly does not concede that it was this violation that
| motivated Rakowski to swing his fist, strike his head, and pull his dreadlocks. Under Booker and —
Medina, Rakowski did not have discretion to take such actions if he did so in retaliation for
Plaintiff’s filing a grievance. Thus, the Court must first decide whether that was what Rakowski
was doing before it can determine whether the discretionary function exception deprives the Court .
of jurisdiction.

The government urges that Plaintiff provides nothing more than a theory that Rakowski’s
conduct was retaliatory, as opposed to evidence sufficient to create a genuine dispute of fact, and
_ the Court is sympathetic to this characterization—while Plaintiff’s complaint provides allegations
supporting an inference of retaliation (for example, Rakowski allegedly stated “If you want to
write us up, then I’m gonna write you up” (ECF No. 92 413)), Plaintiff’s declarations (ECF Nos.
102-1, 102-2} do not repeat these assertions and constitute evidence thereof. Nevertheless, the
Court finds that Plaintiff is entitled to at least conduct discovery as to Rakowski’s intent and
motivation, which he has plausibly pled. As he explains in his declaration, Plaintiff has not been
afforded the opportunity to conduct discovery “as to [Captain Rakowski’s] motive and intent to
retaliate against me,” (ECF No. 102-i.§ 20), and the Court finds that such discovery could create
a genuine dispute of material fact sufficient to preclude summary judgment. Thus, while the Court
may well grant the government’s motion on this point if the record evidence remains unchanged

after discovery, for now, the government’s argument fails.

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' The government’s second argument meets the same fate. Plaintiff's allegations are
sufficient to state claims of assault and battery under Maryland law.

Under Maryland law, “[a]n assault is any unlawful attempt to cause a harmful or

offensive contact with the person of another or to cause an apprehension of such a

contact.” Smallwood v. Kamberger, No. 3067, 2020 WL 4049719, at *25 (Md. Ct.

Spec. App. July 20, 2020) (quoting Continental Cas. Co. v. Mirabile, 449 A.2d 1176,

‘1183 (Md. Ct. Sp. App. 1982)). . . . [And] “[a] battery occurs when one intends a

harmful or offensive contact with another without that person’s. consent.” Nelson v.

Carroll, 335 A.2d 1096, 1100 (Md. 1999) (citing Restatement (Second) of Torts § 13

& cmt. d (1965)). ,
(ECF No. 37 at 19.) As to the assault claim, the government contends that Plaintiff has not
plausibly pled that that he, as opposed to his cell mate, apprehended a harmful or offensive contact
when Captain Rakowski allegedly swung his fist. (ECF No. 97-1 at 30.) The Court disagrees.
Plaintiff alleges that Captain Rakowski “stepped towards Plaintiff and swung his fist at Plaintiff,
stopping his swing before his fist struck Plaintiff. Plaintiff believed and was afraid that Captain
Rakowski was going to actually strike him and attempt to start a fight.” (ECF No. 92 9 16.) These
allegations suffice.

As to the battery claim, the Court recognizes that “[a]n officer is not liable for battery for
using a reasonable amount of force when effectuating a lawful detention or arrest.” Estate of Green
v. City of Annapolis, 696 F. Supp. 3d 130, 169 (D. Md. 2023) (quoting Nelson v. Carroll, 355 A.2d
1096, 1100 (Md. 1999)), The Court also notes that the Amended Complaint uses varied language
to describe some of the alleged conduct (alternately that Rakowski “poked” Plaintiff's head (ECF

No, 92 20) or “struck” it (id. § 51)), and some of this language may describe nothing more than
touching that is reasonably incidental to a lawful pat search. However, Plaintiff alleges that in.
addition to the “poking” and/or “striking” of his head, Rakowski “pulled on Plaintiff’s dreadlocks,

pushing Plaintiff’s head toward the wall.” (/d. § 20.) Viewed as a whole and in the light that is

most favorable to the Plaintiff, these allegations preclude dismissal.

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Finally, the Court rejects the government’s third argument, namely that even if the assault
and battery claims are well pled, the undisputed evidence shows that Rakowski neither assaulted
nor battered Plaintiff. In the face of Rule 56(d) and Plaintiff’s declaration requesting further
discovery (ECF No, 102-1 4 20), the government fails to meet its high bar of establishing that the
discovery Plaintiff requests could not create a genuine dispute of material fact. In addition to the
discovery described above (going to Rakowski’s “motive and intent to retaliate’), Plaintiff requests .
discovery from “inmate witnesses at FCI Cumberland who witnessed Captain Rakowski’s actions °
on February 3, 2022, ... about facts which dispute the declarations made by Captain Rakowski.”
Ud.) Such inmate testimony, along with Plaintiff’s own statements, could create a genuine dispute
of material fact as to the assault and battery claims, even in the face of the government’s video and
other evidence. Thus, Plaintiffs assault and battery claims will survive Defendants’ motion.

4. Negligence and Gross Negligence

Lastly, Plaintiff alleges that Defendant United States is liable for negligence and gross
negligence because after “Captain Rakowski seized Plaintiff’s prescribed contact lenses and
depression medication” (ECF No. 92 7 53) and placed him in segregated housing, “Health Services
Administrator [“HSA”] Allison Foote [and] other employees . . . failed to respond to the daily
requests Plaintiff made for his contact lenses and depression medication ... for weeks... [which]
caused [him] weeks of pain and suffering” (id. 9] 5455), including “severe headaches . .. because
of the missing contact lenses [and] acute depression because of the missing depression medication”
Gd. 37). Plaintiff alleges that Defendant’s conduct “was either undertaken to intentionally cause
Plaintiff harm, or in utter indifference to his rights, wellbeing, and safety [as it was] aware of the

importance of the medication and contact lenses.” (Id. { 58.) Defendant United States argues that

_ these claims fail (1) because those pertaining to Captain Rakowski are barred by the doctrine of

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res judicata (ECF No. 97-1 at 34-37), (2) because those pertaining to HSA Foote were not
administratively exhausted (id. at 38-39), (3) because the allegations are insufficient to state a
claim under Maryland law (id. at 37, 39-40), and/or (4) because the undisputed facts establish that
Defendant’s conduct was not tortious as a matter of law (id. at 40-41). The Court rejects all four
arguments.

The doctrine of res judicata precludes litigants from asserting claims or issues that were
already adjudicated. As the Court has previously explained:

“The doctrine of res judicata encompasses two concepts: 1} claim preclusion and 2)
issue preclusion, or collateral estoppel.” Orca Yachts, L.L.C. v. Mollicam, Inc., 287
F.3d 316, 318 (4th Cir. 2002).

Claim preclusion will bar a suit in light of a prior judgment when (1) “the prior
judgment was final and on the merits, and rendered by a court of competent jurisdiction
in accordance with the requirements of due process;” (2) “the parties are identical, or
in privity, in the two actions;” and (3) “the claims in the second matter are based upon
the same cause of action involved in the earlier proceeding—i.e., the claims arise out
of the same transaction or series of transactions, or the same core of operative facts.”
Duckett v. Fuller, 819 F.3d 740, 744 (4th Cir. 2016) (internal quotation marks omitted)
(quoting Jn re Varat Enterprises, Inc., 81 F.3d 1310, 1315-16 (4th Cir.1996)).

A party seeking to rely on issue preclusion must show that (1) “the issue sought to be
precluded is identical to one previously litigated”; (2) “the issue was actually
determined in the prior proceeding”; (3) “the issue’s determination was a critical and
necessary part of the decision in the prior proceeding”; (4) “the prior judgment is final
and valid”; and (5) “the party against whom collateral estoppel is asserted had a full
and fair opportunity to litigate the issue in the previous forum[.]” Collins v. Pond
Creek Mining Co., 468 F.3d 213, 217 (4th Cir. 2006) (internal quotation marks omitted)
(quoting Sediack v. Braswell Servs. Grp., Inc., 134 F.3d 219, 224 (4th Cir. 1998)).

The government argues that both claim and issue preclusion bar Plaintiff’s negligence and gross
negligence claims because “the Court [previously] entered summary judgment in favor of Captain
Rakowski and against Plaintiff as to Plaintiff’s Bivens claims against Captain Rakowski relating

to Plaintiff's medications and contact lenses.” (ECF No. 97-1 at 36-37.)

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But as indicated above, both claim preclusion and issue preclusion require that the
putatively preclusive decision was a “final judgment.” No final judgment has been issued here.
Rather, the putatively preclusive decision the government relies on is the Court’s partial grant and
partial denial of the government’s pre-consolidation Motion to Dismiss or, in the Alternative, for
Summary Judgment. (ECF No. 37.) A partial grant of summary judgment is an interlocutory
order, which the Court retains discretion to reconsider or modify at any time prior to final

judgment. Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th Cir, 2003);
Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d 1462, 1469 (4th Cir. 1991). Thus, the decision
does not have preclusive effect here.
Further, the government’s issue preclusion argument fails for at least one additional reason,
| namely that the issue previously adjudicated is not “identical” to the issue at stake here. Whether
Plaintiff previously satisfied pleading requirements for his Eighth Amendment Bivens claim,
asserting deliberate indifference to his medical needs, is a different issue from whether he now
satisfies pleading requirements for his negligence and gross negligence claims, even if the same
core of operative facts underlie both. This was implicit in the Court’s previous remark that
although Plaintiff’s allegations were insufficient to support his Bivens claim, they “may tend to
show Captain Rakowski was negligent, perhaps grossly so, in failing to ensure that Plaintiff’s
contact lenses and medications were provided,” (ECF No. 37 at 34), and is affirmed in Fourth
Circuit precedent. See McHan v. Comm’r, 558 F.3d 326, 331-332 (4th Cir. 2009) (“The doctrine
[of issue preclusion] does not apply where the party against whom the doctrine is invoked had a
heavier burden of persuasion on that issue in the first action than he does in the second... .”).
The Court also rejects the government’s second argument against Plaintiff’s negligence

and gross negligence claims, namely that Plaintiff failed to administratively exhaust the claims

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“

that pertain to HSA Foote because his administrative complaint was “devoid of any reference” to
her in particular. (See ECF No. 97-1 at 38-39.) Just as the FTCA’s presentment requirement does
not call for an administrative complaint that names every specific cause of action asserted in a
lawsuit (see Section II.B.1. supra), it is not essential that an administrative complaint name or
assert claims against every individual involved in order to give the government adequate notice to
investigate. See Blankenship v. United States, 111 F. Supp. 3d 745, 752 (W.D. Va. 2015)
(presentment requirement met as to negligence claim against surgical team employees even where
administrative claim focused on negligence of surgeon). Plaintiff's administrative claim
complained that “Plaintiff made several requests to the medical staff at FC] Cumberland requesting
his prescription contact lenses and prescription depression medications for two months while .
plaintiff was in the SHU.” (ECF No. 97-2 at 184.) This gave the government adequate notice of
HSA Foote’s and other employees’ alleged involvement in the events underlying Plaintiffs claims.
Third, the government argues that Plaintiff ’s allegations do not state a claim of negligence

or gross negligence under Maryland law. To state a claim of negligence, a plaintiff must establish
“a duty owed to him (or to a class of which he is a part), a breach of that duty, a legally cognizable
causal relationship between the breach of the duty and the harm suffered, and damages.” Kennedy
Krieger Inst., Ine. v. Partlow, 191 A.3d 425, 440 (Md. 2018). A claim for gross negligence raises
the evidentiary bar: “gross negligence is an intentional failure to perform a manifest duty in
‘reckless disregard of the consequences as affect the life or property of another, and also implies a
thoughtless disregard of the consequences without the exertion of any effort to avoid them.”
Stracke v. Estate of Butler, 214 A.3d 561, 568 (Md. 2019). The government argues that Plaintiff *s
claims fail because “Captain Rakowski had no duty to provide Plaintiff with his prescribed

medication and contact lenses” and “complied with BOP and FCI Cumberland protocol” (ECF No.

w

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97-1 at 37), and because the claims against HSA Foote and other Health Services division staff
allege “negligence by a medical provider’ but fail to plead, as required, an “applicable standard of
care” (id. at 39-40).

However, the Amended Complaint plainly asserts that Captain Rakowski did noi comply
with BOP and FCI Cumberland protocol, as it alleges that Captain Rakowski failed to transfer the
items in question to the Health Services Division or SHU property officer, which the government
agrees he was required to do. (See ECF No. 92 99 53, 56; ECF No. 97-1 at 37-40.) Further,
' Plaintiffs negligence and gross negligence claims are asserted against the Defendant United
. States, not against Captain Rakowski ‘in his personal capacity—it is the government who Plaintiff
must plead had a duty to provide his medication, not Rakowski individually, and the allegations in
the Amended Complaint are sufficient to do so. So too the Court is persuaded by Plaintiff’s

assertion that his claim is not one for medical negligence—such as a misdiagnosis or mistreatment
of an illness—but rather for plain/gross negligence consisting of the government’s failure “to
complete an administrative process and provide him with the contact lenses and medication that
were seized from his cell,” or, in the alternative, that the BOP and FCI Cumberland policies
requiring the provision of inmates’ medications when they are moved to the SHU supply a
pertinent and adequately alleged standard of care in this context. (See ECF No. 102 at 29.) Finally,

-the government strains credulity insofar as it argues that Plaintiff has not adequately alleged a |
breach of duty given that his lenses and medication were ultimately delivered to him. (ECF No.
97-1 at 40-41.) While Plaintiff indeed concedes that his requests were eventually responded to
and fulfilled, he plausibly pleads a significant delay in this result—specifically, that despite his
“daily requests” (ECF No. 92 { 30), his depression medication was not delivered until more than

five weeks after he was moved to the SHU and ‘his lenses more than six weeks after (id, | 36).

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Delays of appropriate medical care can indeed support a claim of negligence under Maryland law.
See, e.g., Howard v, United States, No. 22-cv-950-ELH, 2023 WL 31 65 80, at *11 (D. Md. Jan. 18,
2023); Severe v. United States, No. 20-cv-3404-SAG, 2021 WL 4521345, at *16 (D. Md. Oct. 1,
2021). The Court finds that the delay alleged here was not so insignificant as to entitle the
government to judgment as a matter of law. |

-Finally, the government argues that because the undisputed evidence shows that “Plaintiff's
requests for his prescription depression medication and contact lenses were responded to and
fulfilled by the Health Services Division,” it is entitled to summary judgment. (ECF No, 97-1 at
40.) But again, the government cites no authority providing that its delay was reasonable as a
matter of law, and Plaintiff’s Rule 56(d) declaration (ECF No. 102-1) shows that “for specified
reasons,” he “cannot present facts essential to justify [his] opposition” without further discovery.
Specifically, Plaintiff seeks discovery about “what [Captain Rakowski] did with my medical items,
including whether he did or did not transfer them to the Health Services Division after he seized
them from my cell,” “statements from individuals working in the SHU who received or were aware
of my requests for assistance in obtaining my medical items,” and “the relevant BOP policy(ies)
concerning the procedures in place at FC] Cumberland for distribution of necessary medication
and medical devices—such as contact lenses—when an inmate is taken to the SHU.” (Ud. ¥ 20.)
Discovery on such issues could indeed create a genuine issue of material fact sufficient to defeat
| summary judgment, and thus, the Court finds that summary judgment would be premature at this
juncture.

IV. Conclusion
For the foregoing reasons, the government’s Motion to Dismiss, or, in the Alternative, for

Summary Judgment (ECF No. 97), will be granted in part and denied in part. Plaintiff's Bivens

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claims and his FTCA claims for intentional infliction of emotional distress and abuse of process
will be dismissed, and Defendant Rakowski will be dismissed from the action. However,
Plaintiff's FTCA claims for assault, battery, negligence, and gross negligence will proceed to

discovery. A separate Order will issue.

DATED this @ day of March, 2026.

BY THE COURT:

fracas TK po lhe

James K. Bredar
United States District Judge

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