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Wimbush v. Keefer

United States District Court, Fourth Circuit

December 30, 2013

RONNIE WIMBUSH #360-137 Plaintiff,


JAMES K. BREDAR, District Judge.

Ronnie Wimbush (hereinafter "plaintiff" or "Wimbush"), who is incarcerated at the North Branch Correctional Institution (hereinafter "NBCI"), sought money damages and alleged that defendants used excessive force against him in retaliation for a lawsuit Wimbush had filed against prison psychologist Laura Moulden.[1] ECF No. 1 at 8 (Declaration of Ronnie Wimbush); ECF No. 1 at 9 (Declaration of Curtis Boulware). On June 25, 2013, the undersigned dismissed plaintiff's claims against NBCI Warden Shearin and otherwise denied without prejudice the summary judgment motion filed on behalf of correctional employees Keefer, Kifer, and Marsh. ECF Nos. 62 and 63. Counsel for defendants have submitted a court-ordered supplemental motion for summary judgment (ECF No. 75) and Wimbush has filed opposition responses thereto, [2] ECF Nos. 78, 79, [3] and 82.[4] The court now rules pursuant to Local Rule 105.6 (D. Md. 2011), no hearing being necessary. For the following reasons, defendants' motion for summary judgment, as supplemented, will be denied and plaintiff's motions for appointment of counsel will be granted.


As noted in the Memorandum of June 25, 2013, Wimbush in his complaint states that "around 8:30 or 9:00" on January 13, 2012, Officers Keefer and Kifer accompanied a nurse to his cell to deliver medication. When Wimbush put his arm outside the door slot, he was sprayed with mace. Keefer then cuffed his right wrist and handed the other end of the cuff to Kifer, who pulled Wimbush's arm through the slot, causing injury to Wimbush's wrist and armpit. Keefer and Kifer, accompanied by Sergeant Marsh, then entered the cell. Kifer punched Wimbush in the ribs, and Keefer and Marsh dragged Wimbush out of the cell, rather than allowing him to exit the cell on his own, using his cane. Dr. Ottey treated Wimbush for a cut on the armpit and ordered an x-ray of his ribs because Wimbush had a chest contusion.

Defendants present a different version of events. As the Court noted in the Memorandum of June 25, 2013 (ECF No. 62), Wimbush was involved in separate altercations with corrections staff on January 12 and 13, 2012, [5] culminating in the alleged assault set out in the complaint. As these incidents may be pertinent to disposition of the instant case, they are again outlined here. During the first incident on January 12, a correctional officer opened the security slot in Wimbush's cell to give him his morning medications. ECF No. 33, Ex. 1, Declaration of Randy Durst, Attachment A, p. 6. After receiving the medications, Wimbush ignored several direct orders to remove his arm so the slot could be closed, threw feces on the tier, and threatened to throw liquid on staff. The officer told Wimbush his cell would be searched for weapons and he needed to be placed in hand restraints. Wimbush refused to be handcuffed and a Use of Force /Extraction Team was called in. A team member deployed a burst of pepper spray through the open slot and Wimbush submitted to handcuffing. Once inside the cell, officers found two bowls containing urine and feces. Wimbush was brought to the medical unit for evaluation and treatment for pepper spray exposure, provided a shower, and then returned to his cell. See id. Wimbush was able to walk despite the absence of his cane, and was supported by two officers as he limped to the medical unit, to the shower and back to his cell. The extraction, medical examination, body search, and shower are captured on video and confirm defendants' version of events. ECF No. 55, Tape No. NBCI 12-007. More precisely, the video shows Wimbush's transit through various walkways. No video footage was made of the interiors of the medical examination room, the shower, or his cell, nor is there any footage of the body search.

Neither the officers involved nor Wimbush showed any demonstrable physical injury as a result of the incident. What is apparent is that Wimbush was emotionally distraught, as evidenced by his repetition of a phrase that corrections staff "want to kill [him] to keep [him] from his family." The officers dealing with Wimbush seemed to recognize his emotional state, and the officer leading the Extraction Team promptly addressed Wimbush's need to decontaminate and receive medical evaluation. No Eighth Amendment violation is apparent with regard to this incident.

The second incident - which also is not the subject of Wimbush's complaint - began on January 13, 2012, at approximately 1:00 p.m., when Correctional Officer Andrew Grubb approached Wimbush's cell to investigate a loud noise coming from inside. ECF No. 33, Ex. 1, Attachment B. The officer looked through the cell door window, saw Wimbush kicking his heater, and ordered him to stop. Wimbush continued to kick the heater; shouted at the officer that he was going to kill himself; picked up a piece of loose mortar from his cell floor; threw the mortar in the direction of the officer; and told the officer that he was going to kill him, before he resumed kicking the heater. The officer repeated his order to stop kicking the heater, which Wimbush ignored, and the officer directed a burst of pepper spray through the open security slot. Wimbush then presented his hands for cuffing through the slot, and was escorted to the medical room by five officers.[6] Wimbush was examined by medical staff and spoke with Psychologist Moulden. He was strip-searched, given a shower, security garment, and mattress, and placed under observation due to his comments about harming himself. Again, no Eighth Amendment violation is apparent.

These incidents precede the incident that is the subject of this lawsuit. On January 13, 2012, at approximately 9:00 p.m., Officers Keefer and Kifer opened Wimbush's security slot.[7] See ECF No. 33, Ex. 1, Attachment C. Wimbush refused to remove his arm to allow the security slot to be closed and demanded to speak with a sergeant regarding a previous infraction. The officers agreed to take Wimbush to speak with someone about the matter, and one officer was able to place one handcuff on Wimbush.[8] At this juncture, the parties' different versions of events become material.

Defendants claim that at this point, Wimbush refused to allow the other wrist to be cuffed, insisting that a sergeant come to his cell. Sergeant Marsh was notified of the situation and responded to the tier. Marsh gave Wimbush a direct order to submit to be handcuffed, but Wimbush refused and began pulling Kifer's arm into the cell. After Wimbush refused to comply with a direct order to stop pulling the handcuffs. Marsh deployed a burst of pepper spray through the open security slot, striking Wimbush in the body. Marsh gave Wimbush another order to allow the second handcuff to be applied and Wimbush complied and sat on his bunk. Wimbush's door was opened but he refused to exit his cell, claiming he needed his cane to walk and cursing the officers. Marsh, Keefer, and Kifer entered the cell and pulled Wimbush to his feet. Marsh and Kifer escorted Wimbush to the medical area for evaluation by Dr. Colin Ottey. During the escort, Wimbush was resistant and on several occasions dropped to the floor. Wimbush's medical record indicates he was seen at 9:04 p.m. by Dr. Ottey, who noted Wimbush had a contusion of the chest wall and was short of breath. Dr. Ottey treated Wimbush for pepper spray exposure and released him. Wimbush showered to further wash off the pepper spray and was returned to his cell. ECF No. 33, Ex. C, pp. 13 and 17 and ECF No. 75, Ex. 1, Attachment A; Ex. 2, Ex. 3, Ex. 4.

In his initial opposition response, Wimbush states that he never resisted or attempted to pull Kifer's arm through the slot, and that there was no need for him to be handcuffed, because he needs his hands in order to walk with a cane. ECF No. 39 at 1-2. The video (ECF No. 55, Tape No. BNCI 12-009) shows three officers at Wimbush's cell door.[9] The images are not distinct; however, they depict one officer pulling back and forth on an object partially outside Wimbush's door slot. Whether Wimbush or the officer initiated the tug-of-war cannot be determined from the video. Wimbush admits, however, that while demanding to see a supervisor and complaining about an adjustment ticket, he had his arm outside the feed slot in order to "express [himself]." ECF No. 78, pp. 8-9. Wimbush states that he asked that the cuff be taken off so he could fetch his cane, at which time Kifer began to "snatch" his arm through the slot. Plaintiff states he was then maced by Keefer (not Marsh), and complied by placing his other arm outside the slot to be cuffed. Id., p. 9. Once cuffed, Wimbush sat on his bed, at which time all three officers entered his cell. The video does not depict what occurred inside the cell. Wimbush claims that Marsh stated that Wimbush should not have filed a lawsuit against Psychologist Moulden, at which point Kifer struck Wimbush in the ribs. ECF No. 78, p. 7. Wimbush and fellow prisoner Curtis Boulware have submitted affidavits suggesting the incident was staged by the officers to punish Wimbush for his lawsuit against Psychologist Moulden. ECF No. 1, pp. 8-9 and ECF No. 78, pp. 8-11.

The video shows that shortly after they entered the cell, two officers, each holding one of Wimbush's arms, dragged him out of the cell. Wimbush then dropped his full weight onto the officers, who half-dragged and half-carried him off the tier. The last frames of the video taken on the tier show the officers holding onto Wimbush's arms and Wimbush "skiing" down the tier with one leg held in front and one leg, bent at the knee, in contact with the polished floor.

Standard of Review

As noted in the previous memorandum, under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is properly granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party must demonstrate through the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, " that a reasonable jury would be unable to reach a verdict for the non-moving party. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). When this burden is met, the non-moving party then bears the burden of demonstrating that there are disputes of material fact and that the matter should proceed to trial. See Matsushita Electric Industrial Co. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986).

A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248 (1986). A genuine issue over a material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249. Further, the court must construe the facts in the light most favorable to the ...

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