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Wilson v. Evans

United States District Court, D. Maryland

February 17, 2017

OFF. EVANS, et al ., Defendants



         Pending is a Motion to Dismiss, or alternatively, for Summary Judgment filed by Defendants[1] Warden Frank B. Bishop, Jr., Det. Rodney O. Likin, Sgt. Lisa L. Lasher, CO II Jerry A. Evans, CO II Vincent J. Lark, CO II Gerald L. Wilson, Jr., and CO II Nicholas A. Hetz (“Correctional Defendants”). ECF 31.[2] Defendants Colin Ottey, M.D., Steven Makay, P.P.N., Maria Lewis, L.P.N., Peggy Mahler, N.P., and Beveraly McLaughlin, N.P. (“Medical Defendants”) have also filed a Motion to Dismiss, or in the alternative, Motion for Summary Judgment.[3] ECF 33. Plaintiff was informed by the Court, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that failure to file a response in opposition to the Motions filed by Defendants could result in dismissal of the Complaint. ECF 32 & 35. Plaintiff has filed nothing in opposition. Upon review of the papers filed, the court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, Defendants' dispositive motions will be GRANTED.

         I. Complaint Allegations

         Plaintiff Anthony E. Wilson, an inmate currently confined at the North Branch Correctional Institution, (“NBCI”), filed his Complaint naming as Defendants the former Warden of the Western Correctional Institution (“WCI”), Frank Bishop, Correctional Officers Lasher, Evans, Hetz, Fontain, Vincent J. Lark, and Gerald L. Wilson, Jr., Medical Providers Colling Ottey, Lisa Shell, Steven Makay, Maria Lewis, Peggy Mahler, and Beverly McLaughlin, as well as IID Detective Rodney Likin. ECF 1, pp. 1-3. Plaintiff alleged Correctional Defendants used excessive force against him, conspired to have an inmate assault him, retaliated against him and all Defendants conspired to deny him constitutionally adequate medical care.

         A. January 11, 2014 incident

         In support of his Complaint, Plaintiff states that on January 11, 2014, while housed at WCI, he advised Lark that he did not want to go into general population due to enemies there. Id., p. 3. Lark became verbally aggressive and advised Plaintiff that he did not care what Plaintiff wished to do. Id., p. 4. Plaintiff acquiesced but told Lark that he needed clothing in order to leave segregation as all he had was “a homemade shirt and short” and it was winter. Id. Plaintiff states that Lark became “adverse towards [him].” Id. Plaintiff advised Lark that institutional regulations required that he “be afforded proper and basic needs.” Id. Plaintiff, dressed as he was, refused Lark's instruction to walk outside from Unit #4. Id. Lark handcuffed Plaintiff and while advising that he would be taken to B-tier segregation was instead taken to the property room and placed in a “strip cage.” Id.

         After being placed in the strip cage, Wilson directed Plaintiff to remove all of his clothes for a strip search. Id. Plaintiff was directed to turn around, bend at the waist and spread his buttocks. As he turned to comply, he was maced by Wilson and Hetz. Id. Plaintiff states that Hetz requested another can of mace which was also sprayed on Plaintiff. Id., p. 5. Plaintiff states that the officers taunted him as he tried to move to keep his face and genitals from being sprayed with mace. Id. Plaintiff advised the officers that he could not breathe but as he dropped to one knee they ordered him to stand and be cuffed. Id. He complied and was then held by his handcuffs and back of his neck and forced to the floor when Fontain, Wilson, Lark and Hetz began to punch and stomp Plaintiff in his head, back, abdomen, and upper torso. Id. Officers then grabbed Plaintiff by the legs and kicked him in the testicles and penis. Id.

         Plaintiff claims he was left for three and a half hours before being taken to the medical unit for treatment of chemical exposure. Id., p. 6. He was examined by Nurse Shell. Plaintiff advised her he was dizzy, burning, and had blurred vision. He received no treatment. The officers advised Shell that Plaintiff was not injured and she should so state in her report. Id. Plaintiff indicates that Shell did as she was told, thus conspiring to cover up the assault. Id.

         Plaintiff admits that he was provided a rinse off shower and was then taken to a contingency cell which he alleges had no bunk, bedding, mattress, clothing, toiletries or running water. Id.

         Plaintiff states that he submitted sick calls regarding the pain in his lower back, constant migraine headaches, and severe pain in his groin but received no medical care. Id.

         After writing a complaint regarding Defendants' actions and attempting to file criminal charges he states that he was repeatedly threatened and harassed. Id., p. 7. An IIU investigation was opened and Detective Likin assigned to investigate Plaintiff's claims. Plaintiff states that he and Likin previously had problems when Likin was the housing unit lieutenant of HU #4. Id.

         Plaintiff states that when Likin came to interview him, he told Plaintiff that he was not going to do anything for Plaintiff. Id., p. 7. After the interview Plaintiff filed a grievance against Likin and wrote to the Director of IIU but received no response. Id.

         B. April, 2014 incident

         On April 2, 2014, after having asked Bishop and Likin to arrange his transfer and for an impartial investigation into the previous January 11, 2014 incident, Evans handcuffed Plaintiff and told inmate Albert Burley to “get ‘em.” Id., p. 8. Burley attacked Plaintiff with a weapon which he stated was provided by a prison guard, stabbing Plaintiff in the neck and back multiple times. Evans stood looking on during the attack. Burley stopped the attack and asked Evans if it was enough but Evans told Burley to “finish it...” and Burley resumed his attack on Plaintiff. Id. Plaintiff heard other inmates kicking and yelling and other guards running up the stairs. Id. At that point Evans told Burley to cuff up. Id.

         Plaintiff was escorted to medical where he was examined by Ottey and McLaughlin. Initially Ottey stated to McLaughlin that he thought Plaintiff should be sent out for further medical treatment. Evans told Ottey to wait and consulted with another unnamed officer and Ottey and McLaughlin. Plaintiff alleges they conspired to treat Plaintiff at the facility rather than have him treated at an outside facility. Id., p. 8-9.

         Ottey told McLaughlin that Plaintiff required staples, stitches and a vaccine. Plaintiff informed Ottey that he was in pain and that his neck was numb “and had warmish feel.” Id. Plaintiff received 30 staples and four stitches in his neck. He did not receive any pain medication or a proper examination for the loss of feeling in his neck and lower back. Id. Ottey and McLaughlin failed to document Plaintiff's complaints of pain, numbness, warmth, and tingling in his neck and lower back. Id.

         On April 3, 2014, Plaintiff was called for a dressing change. He was seen by Maria Lewis. He advised her that his neck kept “going without feeling” and he had pain, numbness, and tingling and his lower back and spine. Id., p. 9. Lewis “stated to [Plaintiff] that she was not losing her job for no inmate and that she was sorry.” Id., p. 10. Plaintiff filed an ARP as to the conduct of Ottey. McLaughlin, and Lewis but received no reply. Id.

         The following day, Plaintiff was seen by Peggy Maler, RNP. He advised Mahler that he continued to have numbness and tingling in his neck, back and spinal area. Mahler told Plaintiff that any treatment he required was to be performed by the WCI infirmary. Plaintiff states that Mahler falsified documents by stating that Plaintiff denied having pain or bleeding and offered no concerns when he stated that his complaints over the preceding days had not been addressed. Id. Plaintiff was seen again later that day by Lewis who reiterated her original position from the day before and did nothing to treat Plaintiff's medical needs. Id.

         Plaintiff reported for a dressing change on April 5, 2014. He was seen by Steven Makay, LPN. Plaintiff attempted to advise Makay of his problems and lack of treatment but Makay responded “I know who you are and you have to take this matter up with custody....” Id., pp. 10-11.

         Plaintiff states that the lack of treatment went on for months and at the time he filed this Complaint he had yet to receive adequate treatment for pain or nerve damage. Id., p. 11.

         II. Defendants' Responses

         Correctional Defendants assert that Plaintiff was not subjected to excessive force or a conspiracy among correctional staff to cause him harm or deny him medical care. They further assert that Plaintiff received appropriate medical care. They have provided declarations and documentary evidence to support their contentions. ECF 31-2. Medical Defendants assert that Plaintiff received appropriate medical care and provide medical records to support their assertion. ECF 33.

         A. January 11, 2014 incident

         The January 11, 2014 incident was fully documented. It was Plaintiff who assaulted Defendant Wilson. ECF 31-2, pp. 12-29, 64-137. Plaintiff was served a Notice of Inmate Rule Violation and pled guilty to the infraction. Id., p. 96. Two months after the incident, Plaintiff submitted ARP WCI-04-15-14 alleging facts similar to those raised in this Complaint. Id., pp. 76-79. As a result of the ARP the Internal Investigation Division (“IID”) investigated the claims. Plaintiff provided inconsistent statements throughout the investigation. Id., pp. 65-71, 76-79.

         Lark and Wilson's declarations regarding the incident are consistent with incident reports made contemporaneously with the incident as well as statements provided to IID during the investigation. The reports and declarations demonstrate that Plaintiff refused general population housing. Lark took Plaintiff to the strip cage in the property room so that he could take off his clothes and be provided a jumpsuit to return to segregation housing. ECF 31-4, ¶¶ 5-9 (Declaration Lark) ECF 31-5, ¶¶ 5-9 (Declaration Wilson); ECF 31-2, pp 12-29. Wilson arrived to assist and as he reached to take Plaintiff's last article of clothing, Plaintiff reached through the pass through slot and grabbed Wilson's hand. Id. He refused direct orders to let go. Lark applied a brief burst of pepper spray and Plaintiff released Wilson's hand. Id. Plaintiff was taken to the medical department to receive treatment for exposure to pepper spray. He was provided a shower and placed in a cell. Id. Medical reports and photographs taken immediately after the incident demonstrate that he did not suffer any of the injuries alleged in the complaint. ECF 31-2, pp. 125, 133-134.

         Plaintiff was placed on staff alert for three days. Id., p. 9-10. He received a notice of inmate rule infraction and on January 17, 2014, pleaded guilty to two violations. He was sentenced to 225 days of segregation. Id, p. 7, 25-27, 92.

         On March 12, 2014, Plaintiff submitted ARP WCI -04-15-14 concerning the incident. Id., pp. 76-79. Due to the allegations in the ARP, the matter was referred to IID. On March 27, 2014, Defendant Likin interviewed Plaintiff. At that time, Plaintiff stated that only Defendants Lark and Wilson were involved in ...

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