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Calhoun-El v. Bishop

United States District Court, D. Maryland

November 25, 2014

JAMES CALHOUN-EL, # 160083 Plaintiff,
WARDEN FRANK BISHOP, et al Defendants.


RICHARD D. BENNETT, District Judge.

Pending is James Calhoun-El's ("Calhoun-El") Complaint as amended, filed pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 24). Defendants, former Warden of Western Correctional Institution (WCI) Frank B. Bishop, Jr., Chief of Security Michael P. Thomas, Lt. Phillip D. Merling, and C.O. II Gerald L. Wilson, Jr., filed a Motion to Dismiss or, in the Alternative, for Summary Judgment with affidavits and verified exhibits. (ECF No. 17).[1] The Court granted Defendants[2] Lt. Rodney O. Likin, C.O. II Cletus C. Hill, and C.O. II Jeremiah L. Fontaine's, subsequent request to join the Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. (ECF Nos. 35, 39).[3] Calhoun-El has filed an opposition in reply with declarations and exhibits. (ECF Nos. 40, 41).[4] No hearing is presently needed. See Local Rule 106.5 (D. Md. 2014).

For reasons to follow, the claims against Defendants Bishop and Thomas ARE DISMISSED WITH PREJUDICE, and Bishop and Thomas ARE DISMISSED as party defendants. Plaintiff's due process, verbal harassment, and imminent danger of harm claims ARE DISMISSED WITH PREJUDICE.

Summary judgment IS GRANTED in part and IS DENIED in part. Specifically, summary judgment IS GRANTED in favor of all remaining Defendants as to Plaintiff's claims of inadequate medical care and conditions of confinement. Summary judgment IS DENIED WITHOUT PREJUDICE subject to renewal within forty days as to Plaintiff's claims of excessive force.


This Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007); see also Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). Calhoun-El, an inmate at WCI, is raising claims of excessive force, denial of necessary medical treatment, unconditional conditions of confinement, verbal harassment and denial of due process. He also claims he was subjected to verbal harassment. Calhoun-El maintains that he is in "imminent danger of serious physical injury, "[5] and is requesting compensatory and punitive damages of $50, 000 and declaratory relief. (ECF No. 1).[6]


Calhoun-El's claims arise from a use of force incident that occurred upon his transfer to WCI from North Branch Correctional Institution (NBCI) on August 8, 2013, and two alleged assaults that followed, the first on August 8, 2014, and the second on August 10, 2014. Calhoun-El faults Security Chief Thomas for ordering, and Warden Bishop for approving, his placement on segregation unit #4.

In his affidavit, Calhoun-El states the transportation officers put three-piece restraints on all the transferring inmates except for him. (ECF 41, Ex. 1, p. 2). He explains that his left arm was cuffed only with a black box, his right arm was free so that he could use his cane, and he was not placed in leg restraints. Id. Calhoun-El attests the transportation officers ordered him to exit the transport van without his cane. Id.

When Calhoun-El arrived at WCI, an unidentified transportation officer removed Calhoun-El's restraints, and Officer Wilson proceeded to order Calhoun-El to turn around so that handcuffs could be applied from behind. (ECF 1, p. 7, ¶ 7). Calhoun-El states that he tried to explain he has medical paperwork to use a cane. (ECF No. 1, p. 18). Before Calhoun-El could show the officer the paperwork, Wilson administered one burst of pepper spray directly to Calhoun-El's face. (ECF 41, p. 3). Calhoun-El attests that he never received a direct order from Wilson. Id. Calhoun-El fell to the floor, was handcuffed behind his back, and then "dragged by 6 unknown officers passing a shower [sic], then taken to an area without cameras." (ECF No. 1, p. 7). There the officers allegedly administered two additional bursts of pepper spray directly into Calhoun-El's chest, and beat him on the stomach, chest, and back while he was handcuffed from behind. Id. at 8.

Calhoun-El alleges he was slammed into a "cage"[7] without proper ventilation or decontamination for over twenty-five minutes.[8] He pleaded for medical help because he was gagging, unable to see, and in intense pain. Id. at 9.

Calhoun-El was taken to the medical unit. He complains Nurse Dennis Martin told him "They got you good, " and failed to clean the pepper spray from his eyes and body. (ECF 41, p. 3). Calhoun-El was taken for a shower where, he complains the water was so hot that it worsened the burning caused by the pepper spray, and he started to scream. After hearing his screams, several unknown officers came to the shower and asked "you're not crying are you" and then said "look at that little penis" while the social worker and nurse looked on. (ECF 1, at 8-9).

Calhoun-El was next taken to see Lieutenant Liken. He told Liken that he wanted to file a complaint based on the incident. Calhoun-El was then taken to an isolation cell, where he was forced to lie face down on the floor while the handcuffs were removed. Shortly afterward, Sergeant Merling, accompanied by several unidentified officers brought a complaint form to Calhoun. Merlin ordered Calhoun-El "to write what I tell you to write." Id. Calhoun-El responded he intended to write that he had been beaten and subjected to excessive force. Liken left without giving Calhoun-El an opportunity to file an administrative complaint. Calhoun-El states that on or about August 10, 2013, he received a memorandum from Security Chief Thomas which indicated that he had refused to file a complaint. Id. [9]

Calhoun-El was assigned to the isolation cell with only socks, a t-shirt, and underwear. There was no mattress or furniture in the cell. He alleges that he received no medication for his type II diabetes and high blood pressure for two days, the lights remained on for 24 hours a day, and he was forced to eat with his fingers. Id. at 10.

On August 10, 2013, Calhoun-El was removed from the isolation cell, taken again to the area where there are no cameras, and beaten in the rectum, back, stomach and chest. He states he became semi-conscious. He claims Lois Shaffer, R.N, smiled when she saw him. She examined him and wrote in the medical report that he voiced no complaints. Id .; see also ECF 41, p.6.

Calhoun-El claims a "leash" was attached to his handcuffs and he was forced up the stairs. See id. He told the officers that he had orders for bottom tier and single cell status. (ECF 41, p. 6). His hands were forced through a cell slot to remove his handcuffs. Calhoun-El was "forced" into cell #30, and later moved because his cellmate threatened to kill him. On August 14, 2013, Calhoun-El was moved into cell #15 with an inmate who allegedly has a history of assaultive behavior.


Calhoun-El has filed a declaration executed by Carlton F. Harris, a fellow inmate at WCI and his former cellmate at NBCI. (ECF 41, Ex. 2, p. 18). Harris attests Calhoun-El was not placed into the entire three-piece restraint by transportation officers. Id. at 19. Instead, Calhoun-El had one arm free so that he could use his cane. Id. Harris declares he witnessed Officer Wilson tell Calhoun-El once to turn around for cuffing. Harris states he witnessed Calhoun-El explain to Wilson that he had medical paperwork on the table for a cane. At that moment, Wilson applied pepper spray to Calhoun-El's face. Id. at 19.


Calhoun-El has provided a copy of his medical record dated March 10, 2012, which contains the following instruction and temporary order:

Allow IM [inmate] to use cane when going out of cell d/t [due to] neuropathy lumbar radiculopathy.

(ECF No. 41, Exhibit 1, p. 16). The medical order anticipated completion or removal by May 9, 2013. Calhoun-El's medical record dated May 12, 2012 reads: "Paperwork for IM to use cane out of cell × 1 yr. from 5/9/12 completed and sent to HU [housing unit]." Id. at 17. Defendants do not address whether the order for a cane was in effect at the time Calhoun-El was transported from NBCI to WCI on August 8, 2013.


Defendants' verified records and exhibits show that on August 8, 2013, at approximately 10:25 a.m., Officer Wilson, who was assigned to assist with the inmates transferring to WCI attempted to switch Plaintiff's restraints. Calhoun-El, however, refused to place his hands behind his back to be handcuffed. (ECF No. 17, Ex. 4 p. 33).


In the incident report filed subsequent to the pepper spray incident, Wilson wrote that he asked plaintiff to turn around and place his hands behind his back for handcuffing, but plaintiff refused to do so. Id. Officer Wilson then gave Calhoun-El a direct order to turn around for handcuff placement. Calhoun-El refused, whereupon Wilson told Calhoun-El that if he did not turn around, he would use his pepper spray. Calhoun-El started to reach for Wilson's arms, and Wilson administered pepper spray to Calhoun-El's face and ordered him to get on the ground. Calhoun-El started to walk towards Wilson. At this point, Wilson grabbed Calhoun-El by the jumpsuit and took him to the ground. Calhoun-El complied with Wilson's order to place his hands behind his back and handcuffs were applied. Calhoun-El was then escorted to the medical department at Housing Unit #4 where he received medical treatment for pepper spray exposure. After he was seen by medical providers, Calhoun-El was given a shower and placed in a cell without further incident. Id . see also ECF No. 17, Ex. 5. Calhoun-El was continued on staff alert status until August 9, 2013, for noncompliance with staff instruction and verbal aggressiveness toward staff. (ECF No. 17, Ex. 7).

On August 21, 2013, Calhoun-El was found guilty after a hearing of violating inmate rules #101 (assault or battery on staff) and #400 (disobeying a direct lawful order), and received 250 days of disciplinary segregation for violation of inmate rule #101 and 45 days concurrent for violation of inmate rule #400. (ECF No. 17, Ex. 10 pp. 9-11).



Wilson attests to the accuracy of his account of the incident in the infraction report. He states:

Due to Mr. Calhoun-El's noncompliance with my orders and him trying to grab my arms, I applied one short burst of pepper spray to him. When he continued to advance towards me, ignoring my orders, I placed him on the ground. At that point he complied with my orders and control was once again gained of the Complainant; therefore, no further force was used. During this incident I used the appropriate amount of force ...

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