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Glascoe v. Sowers

United States District Court, Fourth Circuit

September 20, 2013

VICTOR GLASCOE, Plaintiff,
v.
OFFICER H. SOWERS, Defendant.

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

Victor Glascoe, plaintiff, an inmate at the State of Maryland's North Branch Correctional Institution ("NBCI"), filed suit under 42 U.S.C. § 1983 against Officer Herman Sowers. His claims arise from an incident on October 2, 2010, in which defendant administered pepper spray into plaintiff's eyes. Glascoe, who is represented by counsel, alleges that Sowers' actions and use of pepper spray were unreasonable and malicious, causing injury to Glascoe's eyes, in violation of his Eighth Amendment right against cruel and unusual punishment.[1]

After the conclusion of fact discovery, Sowers filed a motion for summary judgment ("Motion") (ECF 44). Glascoe filed an Opposition (ECF 53) and Sowers filed a Reply (ECF 54). Both parties also submitted numerous exhibits. See Note 3, infra.

The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will grant the Motion.

Factual Background[2]

NBCI is a maximum security prison. Motion at 3. On October 2, 2010, Glascoe was in his cell, Cell 5 on D Terrace in Housing Unit Four. See Glascoe Dep. at 17; Sowers Aff. ¶ 2. D Terrace or "D Wing, " which the parties sometimes refer to as the "tier, " consists of two rows of cells (an upper row of cells, accessible by a catwalk, and a lower row of cells on ground level) adjoining an open common space. Glascoe Dep. at 16-17. Cell 5 is on the lower level.

At that time, Glascoe was told by the tier officer that Captain Becker wanted Glascoe to make an emergency phone call. Glascoe Dep. at 44-46. The tier officer escorted Glascoe from his cell, out of the tier, through the C/D Terrace lobby, and down a hallway towards a back office used for various individual meetings with prisoners. Id. Upon reaching his mother by phone, Glascoe learned that a family member had died. After the phone call, he was escorted back to the lobby. On one side of the lobby area was a prisoner holding cell. On the other side of the lobby was the control center for C/D Terrace. Hallway at 12:12:36 PM. Officer Sowers was in the control center, working the 7:00 a.m. to 3:00 p.m. shift, monitoring the movement of inmates within Housing Unit Four. In his affidavit, Officer Sowers stated that, from his position in the control center, he observed Glascoe standing in the lobby area, which is an "area that is restricted and an inmate may not be in the area without permission." Sowers Aff. ¶ 3.

While in the lobby area and facing the holding cell, Glascoe talked to a correctional officer in the hallway. Hallway at 12:12:48 PM. At his deposition, Glascoe stated that he informed the correctional officer in the hallway that he was finished with the call and the office needed to be locked up. Glascoe Dep. at 48. He further clarified in his affidavit that he spoke only to the officer and not to an inmate who was confined in the holding cell. Glascoe Aff. ¶ 1.[3] In order to impel Glascoe to move from the lobby and end his conversation, Officer Sowers kicked the large glass window separating the control center from the lobby three times.[4] See Violation Notice; Sowers Aff. ¶ 5; Hallway at 12:12:57 PM; Control Center at 12:12:57 PM. Glascoe finished his conversation and returned to the tier without responding to Officer Sowers' kicks. Sowers Aff. ¶ 5. Hallway at 12:12:36 PM. At his deposition, Glascoe explained why he disregarded Sowers' kicks: "I wasn't in the wrong. I wasn't doing nothing, and I'm assuming he wasn't trying to get my attention, so I went on and [walked] on the tier." Glascoe Dep. at 49.

Once Glascoe was back on the tier, he talked to Officer Nathan Klink, the tier officer, about "calling [his] mother back on [his] own phone, " stating: "I ain't going to stay back there in the office by myself." Glascoe Dep. at 49. After finishing his conversation with Officer Klink, Glascoe turned towards his cell. See Sowers Aff. ¶ 5; Hallway at 12:12:36 PM. At around that time, Officer Sowers walked up to a porthole between the tier and the control center and called to Glascoe. See Sowers Aff. ¶ 6; Hallway at 12:13:05 PM. At his deposition, Glascoe stated that he heard Officer Sowers call, "Hey, hey, hey, you.... Yes, you come up here." Glascoe Dep. at 49. Glascoe walked up to the porthole, where Glascoe and Officer Sowers conversed. Tier Front at 12:13:12 PM. At his deposition and in his affidavit, Glascoe recalled that Officer Sowers said: "What are you a dummy or something?" See Glascoe Dep. 49; Glascoe Aff. ¶ 2. Glascoe replied, "Man, look, my mama ain't raised no dummies." Id. Officer Klink, the tier officer, then ordered Glascoe to return to his cell. There was no further conversation with Sowers at the porthole. See Glascoe Dep. at 50; Klink Aff. ¶ 5.[5]

With another officer from the control center, Sowers exited the control center to enter the tier as Glascoe returned to his cell door. See Glascoe Dep. at 50; Hallway at 12:13:33 PM; Control Center at 12:13:33 PM. In his affidavit, Glascoe stated that, as he "was proceeding [to the cell, he] was thinking about the news that [he] had gotten concerning the death in [his] family." Glascoe Aff. ¶ 4. Officer Sowers walked toward Glascoe and directed him to "Put [his] hands on the wall." Glascoe Dep. at 50; Violation Notice; Sowers Aff. ¶ 8; Klink Aff. ¶ 6. In reply, Glascoe asked: "What?... For What? What Did I Do?" Glascoe also walked towards Officer Sowers. In his affidavit, Officer Sowers stated that Glascoe had his fists "clinched [sic]" and "assumed an aggressive posture, " Sowers Aff. ¶ 7, while Glascoe counters that he did not take an aggressive stance. Glascoe Aff. ¶ 4. The video shows Glascoe's arms raised about 20 degrees from his sides and held slightly forward (his body language does not appear inconsistent with that of someone asking, "What Did I Do?"). However, the video is not detailed enough to determine whether his fists were "clinched." Tier Front at 12:13:58 PM.

As Sowers approached, he again commanded Glascoe to put his hands on the wall and asked, "Are you refusing?" Glascoe replied, "Yes, man, you ain't going to spray me with that mace." Sowers asked, "You refuse?" Glascoe responded, "I'm trying to see Sergeant Spears." See Glascoe Dep. at 50; Sowers Aff. ¶ 8. Officer Sowers reached out to grab Glascoe's arm, but Glascoe pulled away. See Violation Notice; Tier Front at 12:14:01 PM. Officer Sowers then removed a pepper spray cannister from his belt and applied the first dose of pepper spray. See Sowers Aff. ¶ 9; Hochard Aff. ¶ 6; Klink Aff. ¶ 8; Tier Front at 12:14:03 PM.

As shown in the Tier Front video, Officer Sowers and two other correctional officers gathered around Glascoe after Sowers first administered pepper spray. Sowers denied Glascoe's request to see Sergeant Spears, and another officer said, "come on Mr. Glascoe, I'm going to cuff up [sic]." See Glascoe Dep. at 50; Sowers Aff. ¶ 8. Officer Sowers was able to place handcuffs on one of Glascoe's wrists and bend Glascoe's cuffed arm backwards as the other two officers watched. See Glascoe Dep. at 61; Klink Aff. ¶ 7. As a fourth and fifth officer entered the tier, Officer Sowers pushed Glascoe against the wall. Tier Front at 12:14:27 PM. One of the other officers, Officer Hochard, assisted Officer Sowers, but both were unable to secure Glascoe's free wrist in the handcuffs. See Violation Notice; Hochard Aff. ¶ 5; Klink Aff. ¶ 7. Glascoe leaned backwards against the officers and planted his feet in the joint between the wall and the floor as the officers tried to place the cuff around his free wrist. The group of officers then pushed Glascoe back against the wall. Tier Front at 12:14:47 PM.

Officer Sowers then applied the pepper spray a second time.[6] See Violation Notice; Sowers Aff. ¶ 10; Hochard Aff. ¶ 8; Klink Aff. ¶ 9; Tier Front at 12:14:57 PM. Officers Sowers, Klink, and Hochard pulled Glascoe to the floor. Tier Front at 12:15:05. Glascoe freed his arm twice more, but the officers were finally able to place Glascoe's free wrist in the handcuffs. See Violation Notice; Sowers Aff. ¶ 10; Hochard Aff. ¶ 9; Klink Aff. ¶ 9; Tier Front at 12:15:20 PM.[7] A sixth officer entered the tier and joined the officers gathered around Glascoe. Tier Front at 12:15:27 PM. Two of the officers lifted Glascoe to his feet, and he was taken out of D Terrace and led down the hallway. Hallway at 12:16:22 PM. Glascoe was placed in Housing Unit 1, showered within ten minutes after the incident, and saw a registered nurse around 12:40 p.m., twenty-five minutes after the incident. See Glascoe Dep. at 65; Patient Records at 21.

Glascoe was charged in an internal disciplinary proceeding with two rule violations stemming from the incident, to which he pleaded guilty. Glascoe Aff. ¶ 7. The Inmate Hearing Record, Ex.D to Opposition (ECF 53-5), reflects that Glascoe waived representation or the right to call witnesses at the hearing, see id. at 1, and that the hearing officer sentenced Glascoe to "30 days of cell restriction, " in accordance with a "plea agreement with the institution." Id. No transcript or other verbatim account of Glascoe's statements at the hearing is contained in the record, and the Inmate Hearing Record does not reflect whether Glascoe's guilty plea was taken under oath. In his affidavit, Glascoe stated that he entered into the plea agreement thinking that "it was in [his] best interest to plea[d] to the charges rather than fight them and then be sentenced to a prolonged period [of punishment]." Glascoe Aff. ¶ 7. However, in his deposition he also stated that he "wouldn't have ever plead[ed] guilty to this when I knew I wasn't in the wrong." Glascoe Dep. at 94.

At his deposition, Glascoe stated that, as a result of the incident, he now has to wear glasses and use eye drops. Glascoe Dep. at 81. Glascoe filed a complaint with the Internal Investigative Unit of the Maryland Department of Public Safety and Correctional Services ("DPSCS"). See Glascoe Dep. at 97; Investigation Report. The ...


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