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Kitchen v. Ickes

United States District Court, D. Maryland

July 14, 2015

OFFICER B. ICKES, et al., Defendants

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Tremaine L. Kitchen, Plaintiff, Pro se, Cumberland, MD.

For Officer B. Ickes, Defendant: Stephanie Judith Lane Weber, LEAD ATTORNEY, State of Maryland, Office of the Attorney General, Baltimore, MD; Dorianne Avery Meloy, Office of the Attorney General, Baltimore, MD.

For Wexford Health Sources, Inc., Defendant: Carolyn Israel Stein, LEAD ATTORNEY, Bonner Kiernan Trebach and Crociata, Washington, DC; Elizabeth E Pavlick, Bonner Kiernan Trebach and Crociata LLP, Washington, DC.

For Office of the Attorney General, Interested Party: Dorianne Avery Meloy, LEAD ATTORNEY, Office of the Attorney General, Baltimore, MD.

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DEBORAH K. CHASANOW, United States District Judge.

Pending are a Motion to Dismiss filed by Wexford Health Sources, Inc. (ECF No. 20), and a Motion to Dismiss, or in the alternative, Motion for Summary Judgment filed by Correctional Officer B. Ickes as supplemented. (ECF Nos. 22, 27 & 33). Plaintiff has responded and Defendants have replied. (ECF Nos. 24, 28, 32, 34, 35, 36 & 37). Upon review of the 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 motions will be granted.


The case was instituted upon receipt of correspondence from Plaintiff Tremaine Kitchen, an inmate held at the North Branch Correctional Institution (" NBCI" ). ECF No. 1. By way of a court directed supplemental complaint, Plaintiff claims that on June 10, 2014, he was fighting his cellmate when Officer Ickes directed the two to stop fighting. ECF No. 4, p. 3.[1] Plaintiff states that he " subdued his cellmate at some point to comply with the officer's order to stop fighting." Id. Plaintiff avers that he had a tight grip on his cellmate and was holding him pinned to the floor when he called out to the officers for them to come into the cell, while he restrained his cellmate, so that the officers could handcuff both of them. Id. Plaintiff states that several officers requested the cell door be opened so they could enter the

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cell and handcuff the two inmates while they were on the ground not fighting, however Ickes said not to open the door. Plaintiff asked Ickes why and Ickes yelled back that the inmates should not have been fighting. Ickes then ordered Plaintiff to release his cellmate. Ickes opened the feed up slot and sprayed pepper spray.[2] Id., p. 3-4.

Plaintiff states that he then stood up and stepped away from the door and his cellmate. Plaintiff claims that when Ickes noticed Plaintiff had complied with the order, he sprayed the pepper spray directly in Plaintiff's eyes, mouth, and nose, choking and blinding Plaintiff. Plaintiff states that Ickes emptied the entire can onto Plaintiff, which rendered him defenseless and allowed his cellmate to attack him again. Id., p. 4. Officer Cox then came to the cell door and sprayed his can of pepper spray at the Plaintiff and the cellmate to stop the assault upon Plaintiff. Id. p. 4.

Plaintiff states that later that day he was waiting in a holding cell to be seen by medical staff and was choking and gagging from the pepper spray. An unknown nurse came to examine him. Plaintiff advised the nurse that he could not see, he suffered from glaucoma, and he could not breathe because he had ingested a lot of pepper spray. He also advised the nurse that he bit his left upper lip. Id., p. 5. Plaintiff states that the nurse wiped his left upper lip and advised him that she could not flush his eyes until after he took a shower because he was covered in pepper spray from the top of his head to the middle of his body. Id., pp. 5-6.

Later that evening Nurse Shannon and Officer Iser observed Plaintiff in his cell. Shannon left to inquire whether NBCI would allow her to come back in order to flush the pepper spray out of Plaintiff's eyes but she did not return. Id., p. 6.

The following morning, Plaintiff was seen by Ophthalmologist Michael Summerfield who attempted to flush Plaintiff's eyes. Id., p. 6. Plaintiff states that his retinas, corneas and outer layers of both eyes were severely burned by the pepper spray due to the denial of medical treatment. Summerfield noted Plaintiff's eyes were photosensitive. Id., p. 6-7. Summerfield directed that staff should check Plaintiff every six hours because he was temporarily blind but NBCI staff never checked on him. Id., p. 7.

Additionally, Plaintiff states that during the incident his sheets, mattress, towels, wash cloths, shirts, shorts, and tennis shoes were sprayed with the chemical agent by Ickes. Some of the items were confiscated and discarded because of the pepper spray. Plaintiff was transferred to disciplinary segregation and given his mattress and allowable property, but not provided any sheets to place on top of the mattress that was sprayed with pepper spray. Id., p. 7.

Second Supplemental Complaint

Plaintiff filed a Second Supplemental Complaint (ECF No. 16) followed by a Motion to File a Second Supplemental Complaint. ECF No. 25. Ickes and Wexford moved to strike the Supplemental Complaint (ECF Nos. 19 & 20), and have also filed oppositions to his Motion for Leave to File. (ECF Nos. 26 & 30). For the reasons that follow, Defendants' Motions to Strike shall be granted in part and denied in part.

In his second supplemental complaint (ECF No. 16), Plaintiff alleges that he was subjected to the wrongful destruction of

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his property. He reiterates his claim regarding Ickes' use of pepper spray and expands those claims. Plaintiff indicates that Ickes used the pepper spray improperly in that it is to be used in short bursts per a use of force manual, rather than emptying the entire can. Plaintiff further alleges that Ickes knew that NBCI did not have decontamination agents for use with pepper spray. Id. Plaintiff indicates that his ARPs regarding the incident were not properly investigated. Id., p. 9.

All of the property in his cell, e.g., bed sheets, towels, shower bag, clothing, and hygiene items, were destroyed. ECF No. 16, p. 2. After the altercation he was not provided with a confiscation form for all of his personal property items. He states that his property was confiscated and destroyed. Id.

On June 10, 2014, Plaintiff states, property room officer Bennett, inventoried Plaintiff's personal property after receiving Plaintiff in Housing Unit 1. Bennett discarded Plaintiff's clothing that was covered with pepper spray and then discarded all of Plaintiff's excess property, which Plaintiff claims was allowable on general population but not allowed on disciplinary segregation. Id. pp. 2-3. That same day Bennett delivered to Plaintiff the property allowable on disciplinary segregation, including the mattress that had been covered in pepper spray. Plaintiff states that Bennett should have thrown out the mattress, provided him a new one, and should have provided him with bed sheets. Id., p. 3.

On several occasions Plaintiff requested Officers Soltas and Beachy provide him a new mattress and sheets but they both replied that it was not their job. Id., p. 3. Plaintiff states that his cellmate also complained to officers seeking to get Plaintiff a new mattress, to no avail. The mattress soaked with pepper spray inflamed the burns on Plaintiff's body and burned the inner and outer areas of his eyes causing him pain, shaking and shivering. Id., pp. 3-4. Plaintiff states he had to sleep on the contaminated mattress without sheets for weeks. Id., p. 4.

Plaintiff further alleges that the finance officer at NBCI failed to comply with this court's Order regarding the assessment of an initial partial filing fee. Id., p. 5. He also claims that an effort to send outgoing mail was delayed by the Finance Officer for three weeks because the officer did not certify that the mail could be sent despite Plaintiff's inability to pay the postage. Id., p. 6.

On September 10, 2014, Plaintiff's access to the GTC Telephone system was reprogrammed to block all of Plaintiff's outgoing calls. Id. Plaintiff indicates that he filed ARPs regarding these complaints but they were denied as being outside the ARP process. Id., p. 8.

On August 8, 2014, Property Room Officer Bennett committed an unauthorized inventory of Plaintiff's personal property as Plaintiff reentered general population. Id. p. 7. Plaintiff states that Bennett confiscated and discarded several pieces of Plaintiff's property including shower shoes, a pillow, a bowl, a cup, etc. Plaintiff states that again he was not provided a confiscation form. Id., p. 7.

Plaintiff states that on August 18, 2014, his " eyes began to push out the mace that had been stored when he enters and stands outside in sunlight. It feels like the sun is sucking the mace out of [his] eyeballs directly which causes him to cry tears of mace that burns his eyes and skin and down his face blinding him temporarily and making his eye sight blurry and hard to focus." Id., p. 7. Plaintiff was provided an eye exam on August 21, 2014. He was provided " a new prescription and glasses. The eye doctors ...

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