United States District Court, D. Maryland
ANTHONY E. WILSON, Plaintiff
OFF. EVANS, et al ., Defendants
J. MESSITTE UNITED STATES DISTRICT JUDGE.
is a Motion to Dismiss, or alternatively, for Summary
Judgment filed by Defendants 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
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. 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
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
January 11, 2014 incident
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.
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.
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.
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.
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.
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.
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.
April, 2014 incident
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.
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.
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.
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.
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.
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.
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.
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.
January 11, 2014 incident
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.
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.
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,
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 ...