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Resper v. Adkins

United States District Court, District of Maryland

March 4, 2015

WAYNE RESPER, Plaintiff,
OFFICER ADKINS, et al., Defendants.



Pending is a Motion to Dismiss, or in the Alternative Motion for Summary Judgment filed by Defendants Warden Bobby P. Shearin and C.O. II. Randy Adkins. ECF No. 13. Plaintiff has responded. ECF No. 24.[1] Upon review of papers and exhibits filed, the court finds an oral hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, the dispositive motion will be granted.


Plaintiff Wayne Resper, an inmate currently held at the Western Correctional Institution ("WCI"), filed the instant civil rights complaint, alleging that on November 3, 2010, while housed at the North Branch Correctional Institution's ("NBCI") segregation unit Officer Adkins racially discriminated against him by calling him a "Nigger." ECF No. 1, p. 3. Plaintiff alleges that on November 7, 2010, Adkins slammed Plaintiff's hand in his food tray slot, causing swelling and bleeding, and refused to allow Plaintiff to clean his food tray slot as other inmates were permitted to do. Id . On November 21, 2010 Adkins threatened to withhold Plaintiff's kosher breakfast, and harassed and retaliated against him by filing a false Notice of Rule Violation. Id., pp. 3-4. On November 30, 2010 Adkins "attempted to close Plaintiff's hand in the food tray slot." Id., p. 4.

On January 24, 2011, Plaintiff alleges Adkins retaliated against him by escorting him to a dark, unlit, and filthy shower in retaliation for Plaintiff's having filed complaints against Adkins. Id. On January 30, 2011, Adkins, in retaliation for Plaintiff having filed complaints against him escorted Plaintiff to a broken shower that had only cold water. Id., p. 5. On May 15, 2011, Adkins escorted Plaintiff to a dark unlit shower in retaliation for Plaintiff's complaints. Id., p. 5.

Plaintiff indicates he filed administrative grievances regarding the matters. He states that Bobby Shearin and Adkins' unnamed supervisors on the 11 to 7 shift failed to properly address each complaint regarding Adkins' actions. Id .

Adkins avers that he did not use a racial epithet while providing Plaintiff food on November 3, 2010 and has never used a racial epithet against Plaintiff or any other inmate.[2] ECF 13, Ex. 4.

Adkins states that he has never purposefully closed Plaintiff's hand or any other inmates' hand in the feed up slot. If Plaintiff's hand was caught in the feed up slot on November 7, 2010, it would have been accidental. Adkins has no recollection of catching Plaintiff's hand in the slot on that date or any other date. Id .

Inmates, such as Plaintiff, housed on NBCI's segregation unit are permitted to hang a rag or cloth in their feed up slot as a signal to the officers that they want to be given an opportunity to quickly wipe the slot before it is closed. Id . If the inmate does not signal, the slot is quickly closed immediately after feed-up, as leaving the slot open poses safety and security concerns. Adkins further states that safety and security issues are created when inmates attempt to hold their feed- up slot open by placing their hands, arms or other objects in the slot in an attempt to breach the slot and keep it from being closed. Breaching a security slot creates safety and security issues in any housing unit, but the issues are exacerbated when they occur on a segregation unit such as HU 1. Id., Ex. 4.

Adkins refutes Plaintiff's allegations regarding the events on November 21, 2010. Id., Ex. 4. At approximately 4:30 a.m., Adkins was conducting feed up on Plaintiff's tier when Plaintiff held the slot open after he was given his breakfast meal. Adkins avers that when asked why he was holding the slot open, Plaintiff replied; "go fuck yourself!" Id.; Ex. 5, p. 18. Adkins ordered Plaintiff to remove his hand from the slot; however, Plaintiff ignored the order and refused to remove his hand. Id . Adkins continued conducting the feed up on the tier. When he unlocked the security slot on the cell next to Plaintiff's, Plaintiff yelled for the inmates in that cell to hold open their slot. Adkins was able, however, to finish the feed up without further incident. When Adkins was collecting trays, Plaintiff removed his arm from the slot to allow the slot to be closed, but stated that he was not going to return the tray. Adkins ordered Plaintiff to return the tray, and Plaintiff responded: "suck my dick, go fuck yourself!" Id . Adkins ordered Plaintiff to produce his identification card, but he refused.[3] Adkins told Plaintiff he would receive an infraction. Adkins identified Plaintiff by the B-Tier roster and wrote the infraction. Officer Yutzy served Plaintiff with the notice at approximately 6:00 a.m. that morning. Plaintiff refused to sign the notice. Id.; Ex. 5, p. 18.

Plaintiff's adjustment hearing was held on November 23, 2010. He pled to tampering with or destruction of security equipment and interfering with or resisting duties of staff, disobeying a direct lawful order, exhibiting or demonstrating insolence, disrespect or vulgar language. He was sentenced to a total term of 200 days disciplinary segregation. Id., p. 14.

Adkins further avers that he made no effort on November 30, 2010, to close Plaintiff's hand in the feed up slot[4] and never attempted to close Plaintiff's hand or another inmate's hand in the slot. Id., Ex. 4. He aver that he has not retaliated against Plaintiff or any other inmate for any complaints filed against him. Id .

Adkins avers that at the time of the January 24, 2011 and May 15, 2011 shower incidents, staff assigned to segregation were required to insure approximately 128 inmates receive showers and recreation within a three hour time frame. Id . Ex. 4. If all regular showers are full and some inmates still desire a shower, one option is to escort them to one of the few single shows on the unit. Those single showers do not have lights in them; however, the inmates who use them are not in close proximity to other inmates, because the showers hold one inmate at time. Additionally, the doors of these showers are steel mesh across approximately two-third of the door, allowing some light from the tier into the shower. Adkins recalls that Plaintiff's cellmate at the time did not shower as frequently as Plaintiff. If Plaintiff was the only inmate from the cell wanting a shower, he would have been escorted to one of the single showers. In the case where only the single showers are available, the inmate is told that and while an inmate cannot pick and choose his shower location, he can refuse his shower.

Adkins avers that to the best of his recollection, Plaintiff did not refuse his shower and was willing to shower in the single shower on January 24, 2011. Id . The records of Plaintiff's segregation confinement show that he refused a shower on January 24, 2011. Id., Ex. 6. Plaintiff alleged in his Administrative Remedy Procedure Request ("ARP") concerning this event that he was taken to a dark shower and advised by Adkins that the showers with lights did not work. Adkins told Plaintiff that if he did not want to shower in the dark shower he could go back to his cell, which Plaintiff indicates he did. Id., Ex. 17, pp. 1-2. He alleges that the lighted showers "bore no indication they were inoperative." Id., p. 2.

Adkins further states that on January 30, 2011, he did not intentionally escort Plaintiff to a broken shower. Adkins has no specific recollection of the date in question but avers shat he never removed a sign indicating a shower was "out of service." Only maintenance staff place and remove signs indicating a shower needs repairs. Adkins further indicates that is generally known among the inmates on the unit that some showers work better than others because they use the showers; generally, that is not information known to custody staff, and specifically not known to him. Adkins denies escorting Plaintiff to a shower with only cold water or retaliating against him in any way, including by deliberately placing him in a cold shower. Id . Segregation records indicate Plaintiff did not receive a shower on January 30, 2011. Id., Ex. 6. In his ARP concerning this incident, Plaintiff alleged that Officer Broadwater escorted him to a shower on another tier at the direction of Adkins. Id., Ex. 18, pp. 1-2. Plaintiff alleged this was the same dark shower as the January 24, 2011 incident. Plaintiff alleged that the shower was full of trash and the water did not warm. Id . p. 2. Broadwater was interviewed as a result of Plaintiff's complaint and stated that Plaintiff was taken to a single shower as the other two showers on the wing were being saved for the next double cell and the shower was in working condition. Id., p. 3, 5. Adkins denied any knowledge of the event. Id . p. 6.

Adkins has no specific recollection of May 15, 2011. Id., Ex. 4. He avers, however, that he has never retaliated against Plaintiff and would not have escorted Plaintiff to a dark shower in retaliation for having filed complaints against him. Id . Segregation records ...

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