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Thomas-Bey v. Bishop

United States District Court, D. Maryland

July 22, 2015

WARDEN FRANK BISHOP, et al., Defendants.


J. FREDERICK MOTZ, District Judge.

Donald Thomas-Bey, is an inmate currently confined at the North Branch Correctional Institution in Cumberland, Maryland. Thomas-Bey filed the instant civil rights complaint against Defendants, Officer William S. Bohrer, Major Robert Friend, Lt. Bradley Wilt, Sgt. Walter Iser, Jamie Farris, CO II Craig Peters, CO II Ryan Kalbaugh, Officer Leroy Conrad, and Warden Frank Bishop alleging that on March 18, 2014, he was subjected to excessive force. ECF 1. Pending are defendants' motion to dismiss, or in the alternative, for summary judgment. ECF 16. Plaintiff has not filed a response.[1] The court will dispense with a hearing. See Local Rule 105.6. (D. Md. 2014). For the reasons stated below, the court will, by separate Order, GRANT defendants' dispositive motion.


In the instant case, plaintiff indicates that on March 18, 2014, he was in his bed in his cell when he heard a knock on his cell door. Plaintiff walked to his cell door and an officer directed him to "cuff up" but did not explain why. Plaintiff requested to speak with a supervisor. The officer returned with other officers and "began threatening to kick the plaintiffs ass if he did not cuff up right now." ECF 1, p. 4. Plaintiff states he refused to be handcuffed because he feared he would be beaten. Plaintiff asked to speak to a supervisor and the unit psychologist. Id. Officer Wilt directed plaintiff to submit to handcuffing, using racial epithets and again threatening to beat plaintiff. Plaintiff states that he then "jammed his cell door to prevent the door from being abruptly open[ed]." Defendants were unable to open the door so Officer Friend instructed Wilt to "mace" the plaintiff. Id. Wilt sprayed mace through the cell door slot. Id.

Plaintiff states that Shoemaker shut off the water to his cell. Plaintiff remained in his cell for approximately 30 minutes. He became dizzy and had difficulty breathing. When he advised Wilt of his medical difficulties Wilt told him that he should have come out when directed to and again threatened to beat plaintiff. Id., p. 5.

Officers then began to pull out what plaintiff jammed into the door while pulling on the cell door. An officer was able to pull the door open and entered the cell with an electric shield, slamming plaintiff to the floor, where "officers began to viciously kick and punch [him] with closed fists in his face, head, back, neck, groin, mouth, nose, [and jaw]." Id. Plaintiff passed out, was bleeding profusely and had an open wound. Plaintiff was taken to the WCI infirmary for emergency treatment. Plaintiff claims he posed no threat to defendants but was maliciously and sadistically attacked and beaten by them while the supervisory staff failed to intervene. Id. p. 5.

Attached to the complaint are the affidavits and statements of several inmates who indicate that they observed correctional staff spray mace into plaintiffs cell, heard blows being exchanged, and witnessed plaintiff being brought out of his cell unconscious and/or with his eyes swollen shut. ECF 1-1, p. 1.

Defendants offer that on March 18, 2014, NBCI's Housing Unit 1, where plaintiff was housed, was to be subjected to a "shakedown." ECF 16, Ex. 1, p. 18. Officers arrived at plaintiffs cell door and requested he come to the door and place his hands through the security slot in order to be handcuffed and removed from his cell. Id. Plaintiff refused. Wilt instructed plaintiff several times to comply. Plaintiff refused. Plaintiff appeared angry. He stated that the staff and other inmates were poisoning his food and stealing from him. He challenged the officers to remove him from his cell by force. Wilt notified Friend of the situation. Wilt received permission from Assistant Warden Richard Miller to use a planned use of force in order to extract plaintiff from his cell. Id. Ex. 1. Wilt arranged for for a video camera to record the extraction. Id., Ex. 1 & 2.

Wilt and Gillum returned to plaintiffs cell in an effort to have plaintiff peaceably removed from the cell. Plaintiff again refused to cooperate. Id., Ex. 1, p. 18, Ex. 2, part 2, 00:01-3:51 (video footage of use of force).[2] Wilt then assembled a use of force team which included Kalbaugh, Peters, Grub, Rounds and Conrad.[3] Id., Ex 2, part 3, 1:07-1:38. The team intended to quickly open the door to the cell, by surprise, and handcuff plaintiff. Id., Ex 1, p. 18, Ex. 2, part 3 00:40 to 1:15.

The team's effort to quickly enter the cell failed. The door could not be opened quickly and plaintiff attempted to throw a mixture of feces and urine from a container toward the staff as the door was opened. Id., Ex 1, p. 18; Ex. 2, part 3, 3:15-3:35. The officers were unable to open the door quickly because plaintiff barricaded the doorway with papers and magazines. Id., Ex. 1, p. 18. The officers closed the door, regrouped and retreated from the cell. Id., Ex. 2, part 3, 3:15-3:35.

The officers next decided to dispense pepper spray into the cell while ordering plaintiff to cooperate with staff. At approximately 12:50 p.m., the team returned to plaintiffs cell along with Sgt. Farris. Id., Ex. 1, p. 18. Farris brought an MK 46 with application wand, a devise which allows officers to dispense pepper spray into the cell. Id., Ex. 1, p. 18, Ex. 2, part 4, 3:20-3:40. On seven different occasions pepper spray was dispensed into plaintiffs cell. Each time, officers repeatedly directed plaintiff to come to the door to be handcuffed, but he refused. Id., Ex. 2, part 4, 3:20-40, 8:12-9:00, 11:15-11:45, 18:06-18:26, 18:50-19:00, 27:01-27:17, 27:48-27:55.

On each occasion the pepper spray was dispensed either under the cell door or though the security slot in the middle of the door. Wilt and Farris alternated dispensing the pepper spray. Wilt used a smaller can referred to as an MK 9, while Farris continued to use the MK 46. Id .; see also id., Ex 1, p. 18. Plaintiff was observed standing in front of the cell window with paper up his nose and a cloth over his mouth. He continued to refuse to comply. Wilt ordered Farris to go the rear of the cell and dispense pepper spray through the back window. Id., Ex. 1, p. 18. Plaintiff continued to refuse to comply and responded with hostility, including spreading excrement from his cell onto the tier under his door. Id., Ex. 2, part 4, 4:50-5:15. Additionally, when the slot was opened by staff, plaintiff threw urine and feces onto defendants. Id., Ex. 2, part 4 11:45-11:51, 18:06-18:26, 20:40-20:55; Ex 1, p. 18. Plaintiffs efforts impeded defendants' use of pepper spray as they needed to spray quickly and then close the slot in order be avoid being hit by excrement.

Plaintiff appeared unaffected by the pepper spray, standing at the cell door, talking to the officers, refusing their requests, shadow boxing, bouncing up and down in front of the window, and exhibiting erratic behavior. Id., Ex 2, part 4, 13:30-15:20. Eventually, after 32 minutes during which the officers deployed pepper spray in short bursts and requested plaintiff comply with orders to be handcuffed, plaintiff sat on his bunk. Plaintiff continued to refuse to be handcuffed. Id., Ex. 2, part 4, 31:30.

Concerned for plaintiffs safety Wilt then ordered he be forcibly extracted from the cell. Id., Ex 1, p. 18. The cell door and floor was covered in feces and urine. As the team entered the cell plaintiff charged toward the officers, throwing punches, at Karbaugh and Rounds attempting to hit them. Id., Ex. 2, part 4, 32:00-32:20; Ex 1, p. 18. Kalbaugh, in an attempt to defend himself and gain control of plaintiff also threw punches at plaintiff. Id. Plaintiff was knocked to the floor in the initial confrontation where the officers struggled to place him in restraints. After approximately two ...

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