United States District Court, D. Maryland
L. Hollander United States District Judge.
Alexander Wagner, the self-represented plaintiff, is an
inmate at North Branch Correctional Institution
(“NBCI”) in Cumberland, Maryland. He has filed a
§ 1983 civil rights action (ECF 1), in which he has sued
the seven defendants named in the caption.
Id. Wagner's Complaint, with numerous
attachments, totals almost 100 pages. ECF 1; ECF 1-1; ECF
1-2; ECF 1-3; ECF 1-4.
alleges multiple claims: use of excessive force; failure to
protect from harm; denial of adequate medical care; denial of
due process; and retaliation. The claims are rooted in an
incident at NBCI on September 24, 2014. ECF 1. In addition to
substantial compensatory and punitive damages, Wagner seeks
preliminary and permanent injunctive relief; transfer to
another correctional institution; a medical evaluation by a
provider outside the prison; and an order to record his
movements whenever he is outside his cell; and compensatory
and punitive damages. ECF 1 at 3; ECF 1-1 at
Complaint is lengthy and repetitive. It includes a 3-page court
approved §1983 complaint form that is supplemented by an
additional 54-pages labeled as a “Complaint”; a
copy of a Request for Administrative Remedy
(“ARP”), NBCI #2745-14; two notices of
infractions dated September 24, 2014; a motion for
appointment of counsel with a supporting declaration; a
motion to proceed in forma pauperis; a proposed order to show
cause with a temporary restraining order and supporting
declaration; declarations of other inmates; and a copy of a
30-page complaint that Wagner filed in the Circuit Court for
Baltimore City, Case No. 24-C-14-006421. ECF 1; ECF 1-1; ECF
1-2; ECF 1-3; ECF 1-4.
Janette Clark, N.P. has filed a motion to dismiss, or, in the
alternative, for summary judgment (ECF 26), supported by a
memorandum (ECF 26-1) and exhibits (collectively,
“Clark's Motion”). Defendants Warden Frank B.
Bishop, Jr.; Lt. Bradley A. Wilt; Sgt. Brian G. Iames; C.O.
II Dean W. Rounds, Sr.; C.O. II Cody W. Gilpin; and C.O. II
Warren G. Mallow (“State Defendants”) also filed
a motion to dismiss or, in the alternative, for summary
judgment (ECF 33), supported by a legal memorandum (ECF 33-2)
and numerous exhibits. See ECF 33-4 to ECF 33-22;
ECF 43-1 (collectively, the “State's
Motion”). They deny the allegations and assert,
inter alia, defenses of respondeat superior and
qualified immunity. Plaintiff filed a consolidated opposition
(ECF 38) along with a memorandum, a statement of disputed
material facts, declarations, a request for discovery, and
141 pages of exhibits. See ECF 38-1 to ECF 38-6.
Nurse Clark replied. ECF 42.
pending are Wagner's motion (ECF 35) for an extension of
time to reply to Clark's Motion; a motion for a temporary
restraining order and a preliminary injunction (ECF 8); two
motions to preserve evidence (ECF 16 and ECF 36); and a
motion to appoint counsel. ECF 39.
hearing is necessary to resolve the motions. See
Local Rule 105.6 (D. Md. 2016).
construe Clark's Motion as a motion for summary judgment
(ECF 26) and enter judgment in Clark's favor. As to State
Defendant Wilt, I will construe the State's Motion (ECF
33) as a motion to dismiss and grant it. As to the due
process claim against the remaining State Defendants, I will
construe the State's Motion as a motion to dismiss and
will grant it, without prejudice to plaintiff's right to
amend his Complaint. As to the remaining claims and the
remaining State Defendants, I shall construe the State's
Motion as one for summary judgment. As to Warden Bishop, I
shall grant the State's Motion. As to State Defendants
Gilpin, Rounds, Mallow, and Iames, there are genuine issues
of material fact as to the remaining claims. Therefore, I
shall deny the motion for summary judgment as to the
remaining State Defendants, as outlined below.
also grant Wagner's motion for appointment of counsel
(ECF 39) and his motion for an extension of time, nunc pro
tunc (ECF 35). But, I will deny plaintiff's motions to
preserve evidence (ECF 16 and 36) and his motion for a
restraining order and a preliminary injunction (ECF 8).
The Incident of September 24, 2014
claims that on September 24, 2014, beginning at about 12:15
p.m., Officers Iames, Rounds, Gilpin, and Mallow became
“threatening and aggressive” toward him in
retaliation for Wagner's meeting with an investigator for
the Internal Investigation Unit (“IIU”). ECF 1-1
at 2, ¶¶ 12, 13, 14; see ECF 33-8 at 1;
ECF 33-11 at 10-11, 42-43; ECF 43-1 at 1; ECF 33-6 at 2,
According to Wagner, at the relevant time he was in full
restraints and posed no threat to the officers, other
prisoners, or himself. ECF 1-1 at 2-3, ¶ 17. And, he
complains that the incident of September 24, 2014, was the
“sixth inordinate use of force” against him. ECF
1 at 3.
recounts that Iames “maliciously” removed
Wagner's legal mail, writing materials, and asthma
medication from the contingency cell. ECF 1-1 at 2, ¶
15. While Wagner was “speaking against the misfeasance
of defendants' actions, ” Gilpin and Rounds started
to “aggressively pull” on his arms and Mallow
grabbed his cuffs from behind. Id. at 3, ¶ 18.
Iames told Wagner that he should not have contacted the IIU,
and instructed Gilpin and Rounds to place Wagner in the cell.
When Wagner complained he was being punished for litigating
and needed his legal materials, he was told that he was
making trouble by complaining and filing administrative
remedy procedure (“ARP”) requests. ECF 1-1 at 3,
¶21. As Wagner was shoved into the cell, Rounds
told him “‘that shit just got a lot worse for
you.'” Id., ¶ 22. Wagner responded:
“‘Fuck you cowards.'” Id.,
¶23. An unidentified guard answered: “‘Fuck
you nigger.'” Id.
Mallow removed Wagner's leg restraints, Wagner attempted
to run onto the tier toward the cameras to call for help, and
so that someone could see what was happening. ECF 1-1 at 3,
¶ 30. He yelled, “‘They trying to kill
me-they trying to kill me[.] Help.'” Id.
Wagner avers that Iames instructed the other correctional
officers to keep him inside the cell. Id. at 4,
¶ 31. Mallow placed a tether on Wagner's
restraints and, with Gilpin and Rounds, pulled him into the
cell by his face, neck, tether, and arms. Id. During
the struggle, Wagner injured his mouth when he “got
swung into a wall” by Gilpin. Id., ¶ 37.
Wagner states that when he tried to spit blood from the
wounds to his lips, Gilpin said: “‘You black
bitch you wanna spit.'” Id., ¶ 38.
Then, with “a closed fist, ” Gilpin punched
Wagner in the eye and the bridge of his nose. Id.
Rounds hit Wagner in the jaw and lower eye area.
Id., ¶ 39. Gilpin spit at Wagner and asked him
how he liked it. Id., ¶ 40; ECF 1 at 3.
Officers Soltas, Dolly, and Iames dragged Wagner to the cell
door and his restraints were removed through the door slot.
ECF 1-1 at 4, ¶ 42.
asserts, in part, ECF 1 at 3:
On 9/24/2014 after speaking with I.I.U. detective I was
returned to the stripped isolation cell where I was told
“I shouldn't have spoken to I.I.U. & that I
just made shit worse on
myself.[”] Ofc. Rounds &
Gilpin slammed my face into the metal plate twice cutting and
drawing blood both times. I was then rammed face first into
the wall busting my mouth/nose. I was the [sic] punched with
closed fist of Ofc. Gilpin & Rounds Sr., Gilpin then spit
in my face as Rounds attempted to slam me on the metal bench
when I tried to get out of the cell in front of the camera.
Sgt. Iames told them to keep me in the cell. Gilpin, Rounds
& Mallow pulled/held me by the cuffs, neck & tether
cutting my wrist, arm & hands. My eye was leaking blood
from several ‘holes'/cuts to left eye. Sgt. Iames
& CO Mallow did not stop this attack. Iames actually
encouraged the matter. Other officers helped pull me to the
slot only. These officials are hurting me here.
claims that Rounds and Gilpin “repeatedly slammed [his]
face and head into the metal-steel plate located on the left
of contingency cell #3” and “rammed” his
face and head into the steel plate. ECF 1-1 at 3, 4,
¶¶ 24, 26, 46. Further, Wagner claims that Rounds
hit him with his fist in the jaw and “lower eye
area.” ECF 1-1 at 4, ¶ 39. And, Gilpin
“swung” Wagner into the wall. Id.,
¶ 37. Gilpin, Rounds, and Mallow were holding and
pulling Wagner's face, neck, arms, and the tether.
Id., ¶ 31. In addition, Rounds and Gilpin used
“the metal plate and wall as the weapon”
(id., ¶ 47), which injured Wagner's left
eye, nose, mouth, and temple. ECF 1-1 at 3, 4, ¶¶
25, 26, 28, 29, 46. As a result of his injuries, Wagner
became dizzy and momentarily lost consciousness. Id.
at 3, ¶ 29.
asserts that “Mallow and Iames witnessed the entire
assault and did nothing to preclude or prevent” it.
Id. at 5, ¶ 48. Notably, Wagner acknowledges
that “they did not participate in the heart of the
assault, ” but he complains that they failed to stop it
and Iames actually “encouraged” it. Id.
claims that he was left in his cell bleeding and in pain. It
was not until his fellow inmates caused a disturbance that he
was taken to the medical unit for evaluation. Id. at
4, ¶ 43. Although Wagner does not specify the length of
time he waited for a medical escort, his medical records
indicate that he was seen by Nurse Practitioner Janette Clark
at 1:00 p.m., i.e., within 45 minutes of when the
incident began. ECF 28 at 7. Soltas, Dolly, and Anderson told
Wagner to put on a spit mask if he wanted to be seen in the
medical unit. Wagner cooperated and was placed in hand
restraints cuffed from the back, leg irons and a spit mask.
ECF 1-1 at 4, ¶¶ 44, 45; id. at 5, ¶
to Wagner, he was just standing and asking questions when,
“without warning nor reason, ” Gilpin and Rounds
slammed his face and head into a metal/steel plate, which cut
his eye and temple area. Id. at 4, ¶¶ 45,
46, 47. Wagner faults Mallow, Iames, Soltas, Moore, and
Dolly, who witnessed the incident, for failing to intervene.
Id. at 5, ¶¶ 48, 49. Wagner
asserts a hand held video camcorder was used to record the
incident. Id. at 6, ¶64. On September
30, 2016, Wagner wrote to Wayne A. Webb, Regional Executive
Director, complaining about the incident. ECF 33-19 at 21.
avers that Defendant Janette Clark, a Nurse Practitioner,
ignored his injuries. ECF 1-1 at 8, ¶ 83.
was escorted to the medical office for an “urgent
visit” related to “use of force.” ECF 28 at
7. At approximately 1:00 p.m., i.e., about 45
minutes after the incident, Wagner was seen by Clark. ECF 28
at 7. Wagner informed Clark that he was bleeding
under the spit mask, felt dizzy, and had a severe headache.
ECF 1-1 at 5, ¶ 57; id. at 7, ¶ 79;
id. at 8, ¶ 80; see also Wagner
Declaration, ECF 1-1 at 27, ¶¶ 6, 8. Officer Dolly
told Clark that Wagner was bleeding from his eye and head.
ECF 1-1 at 8, ¶ 80; see also Wagner
Declaration, ECF 1-1 at 27, ¶ 6.
asserts that Clark “neglected to treat plaintiff for
possible concussion or other serious” injuries, even
though she knew of the use of force against him. Wagner
Declaration, ECF 1-1 at 27-28, ¶ 9. He also claims that
Iames instructed Clark not to remove the spit mask in order
to hide his injuries and that she “conspired”
with Iames by following his instruction. ECF 1-1 at 5, ¶
59; id. at 7, ¶ 78; id. at 8, ¶
81; see also Wagner Declaration, ECF 1-1 at 27-28,
¶¶ 7, 9. Wagner alleges that he vomited blood and
claims that Clark did nothing to help him, other than wipe
his hand, arms, wrists, and fingers. ECF 1-1 at 8, ¶ 82.
discharged Wagner with the assurance that she would send
someone to his cell to check his mouth, head, and face. ECF
1-1 at 5, ¶ 60. “Nurse Rob” examined Wagner
that same date but said there was nothing he could do for his
eye. Id. at 6, ¶ 65.
next day, September 25, 2014, Wagner was brought to the
medical room for complaints of vomiting blood and severe back
pain. ECF 33-10 at 1. He was seen by James Hunt, RN.
claims that he submitted multiple sick call slips for
migraines, blurred and lost vision, eye pain, light
sensitivity, and pain in his shoulder, hand, and back. ECF
1-1 at 6, ¶ 61. He also claims that his eye continues to
swell and bleed, he continues to vomit blood, and he has
severe back pain. Id. at 8, ¶¶ 84, 86.
acknowledges that he was provided bifocal eyeglasses on
December 23, 2014, but claims that he continues to suffer
light sensitivity and pain, headaches, and sees
“constant spots.” ECF 1-1 at 8, ¶¶ 84,
86; see also Wagner Declaration, ECF 1-1 at 27,
¶ 6. Notably, in the ARP request that Wagner submitted
on September 28, 2016, he acknowledged that Clark checked his
vital signs. ECF 33-19 at 1.
alleges that, after the incident of September 24, 2014, he
asked to make a statement and his request was denied. ECF 1-1
at 6, ¶62. He claims Soltas, Mallow, Dolley, Moore, and
Iames failed to report their coworkers' use of excessive
force and Rounds “perjured himself” by writing a
false “rule infraction” based on the incident.
evening of September 24, 2014, Officer Earl
“Ritchie” delivered a notice of a disciplinary
rule infractions to Wagner. ECF 1-1 at 6, ¶¶ 66,
69. Ritchie refused to give Wagner the notice to sign.
Id. Instead, Ritchie wrote that Wagner had refused
to sign it. Id. Wagner asserts that Ritchie refused
to give him the notice because he was in a strip isolation
cell and also to retaliate against him for past lawsuits he
filed against Ritchie and other correctional officers.
Id. at 6, ¶ 69.
claims he was not notified of the charges against him, was
deprived of an opportunity to request witnesses, and was not
afforded a chance to present a defense. Id. at 6,
¶ 68. Moreover, he claims he was not allowed to attend
the hearing on October 2, 2014, based on the
“pretext” that he was on staff alert and deemed a
threat to institutional security. Id. at 7,
¶¶ 70, 71; see also Id. at 6, ¶ 68.
Wagner disputes that he was on staff alert during this time.
He states he was removed from the contingency cell and staff
alert on September 29, 2014, prior to the adjustment hearing.
Id., ¶¶ 70, 71.
hearing officer found Wagner guilty in absentia, and
Wagner claims that his constitutional right to be present was
violated. ECF 1-1 at 7, ¶ 71. The hearing officer
imposed sanctions of 365 days of segregation and indefinite
loss of visitation. Id., ¶ 72. Wagner appealed
the decision. Id., ¶¶ 76, 77. Warden
Bishop denied the appeal and added 90 days of cell
restriction to the sanctions imposed by the hearing officer.
Id., ¶77; ECF 33-6.
Wagner sets forth allegations as to a violation of due
process, but he never links the allegations to any of the
named defendants. His factual averments implicate unknown
individuals who are not named as defendants.
Declarations of Other Inmates
has submitted declarations from inmates Ronnie Wimbush,
Rodney Solomon, Tavon Singletary, Anthony Cohen, Courtny
Campbell, and Derrick Dirton, whose writing is difficult to
decipher. See ECF 1-1 at 38-54. The pertinent
portions of the declarations are summarized below.
attests to witnessing Officer Gilpin “commit
battery” against Wagner. Wimbush states Wagner was in
restraints and leg irons at the time he was beaten. According
to Wimbush, Clark refused to provide medical care to Wagner.
ECF 1-1 at 38-39. Wimbush does not state the date he
witnessed these events, nor does he identify where he was
located, so as to show that he was able to witness the
alleged battery or Clark's medical evaluation of Wagner.
saw that Wagner's eye “was busted in several
places.” He witnessed Wagner complain of lost and
double vision, pain, and nerve damage. He attests that at no
time did Wagner receive notice of the disciplinary
infraction, and states Wagner was denied the right to attend
his hearing. Solomon concludes he has personal knowledge that
the rule violations against Wagner were fabricated and
retaliatory. ECF 1-1 at 40-42.
Declaration (ECF 1-1 at 43-46), Singletary states that he was
assigned to a cell a few cells away from cell #3, where
Wagner was housed on September 24, 2014. He avers that he saw
Mallow, Rounds, and Gilpin grab Wagner. Singletary also
claims to have heard Wagner ask, “Why are you taking my
mail[?] I gotta answer those im litigating [sic].”
Id. at 43. Singletary also heard an officer respond:
“We know. . . . Shit just got bad for you.”
Id. Singletary lost sight of Wagner once he entered
the cell with the officers, but he could hear a scuffle and
he heard Wagner yell for help.
maintains that he “clearly” heard Wagner say
“distressfully”: “[T]hey split my shit open
yo, I'm bleeding!” Id. at 44. He also
stated: “[T]wo guys on the back wall were say [sic]
Wagner is trying to get out [of] the cell they grabbing him,
etc, etc.” Id. Singletary remembers that
Wagner “scream[ed] out in pain” and, even when
the cell door was secured, Wagner could be heard requesting
medical attention for his eye, temple, nose, and bloody
mouth. Id. Wagner asked for a captain to make a
report. Id. But, the officers “merely walked
off the tier.” Id. Inmates began to
“beat and bang” to get medical help for Wagner.
Id. Three guards “finally came to get
Wagner” for a medical escort. Id. at 45.
Wagner was handcuffed from behind his back, shackled at the
legs, and was wearing a spit mask. Singletary states Wagner
did not move or attempt to threaten an officer or refuse
to Singletary, he saw Wagner's face on September 30,
2014, and observed that his left eye was swollen shut and
“cut up.” Id. at 44. He also observed
that Wagner's right hand was bandaged and his left temple
was swollen and badly cut. Id.
Cohen states that he was housed in cell 1-C-58 and heard a
prisoner screaming “they trying to kill me, they bust
my shit open.” ECF 1-1 at 47. Multiple prisoners were
yelling “they're beating Uncle Yah Yah up
again.” Id. Cohen states that he later found
out that the prisoner was Wagner. Id.
does not state the date this happened. But, he later
indicates, “on information and belief, ” that a
video was taken on September 24, 2014. Id. at 48. He
also claims to have seen Mr. Wagner on September 29, 2014,
with “cuts and abrasions” on his left temple and
“gashes/cuts under and above his left eye.”
Id. And, according to Cohen, Wagner “was
receiving little to no medical attention . . . .”
Id. He also asserts that Wagner was not provided
adequate pain medication for his injuries. Id. at
Campbell attests that on September 27, 2014, he
“fished” paper, a pen, and ARP and medical forms
to Wagner, who was in a strip isolation cell and had no
access to his property. ECF 1-1 at 51-52. On September 28,
2014, Wagner “fished” Campbell handwritten legal
papers to mail on his behalf. Id.
Dirton filed an affidavit which is difficult to read. As best
as can be discerned, Dirton states that on September 24,
2014, he saw Wagner walk by his window. Wagner had blood
running down from the top of his head, face, and eye. ECF 1-1
support of Clark's Motion (ECF 26), Clark did not file
her own Declaration. However, Clark filed thirty-four pages
of Wagner's verified medical records (ECF 28),
along with an Affidavit executed by Robustiano Barrera, M.D.,
Medical Director of the Cumberland, Maryland Region for the
Maryland Department of Public Safety and Correctional
Services (“DPSCS”). ECF 26-5. Dr. Barrera attests
that Wagner has a medical history of joint pain, lower back
pain, asthma, and vomiting blood, all of which existed prior
to and are unrelated to the incident of September 24, 2014.
Id. at 1-2, ¶ 4.
medical records show that on September 24, 2014, at
approximately 1:00 p.m., Wagner was taken to the medical
unit. ECF 28 at 7; see also ECF 26-5. Wagner walked
independently with a steady gait to the medical room. He was
“talkative” and responded appropriately to
Clark's questions. ECF 28 at 7; ECF 26-5, ¶ 5. Clark
observed a “dark color” on the front of the spit
mask that Wagner was wearing. ECF 28 at 7; ECF 26-5, ¶
5. Because of the spit mask, Clark was unable to
examine Wagner's nose, mouth, and throat. ECF 28at 8; ECF
26-5, ¶ 5. However, Clark ordered nursing staff to
follow up with Wagner to inspect his mouth once he was
secured and unable to spit on staff. ECF 28 at 8; ECF 26-5,
observed small abrasions during the physical exam and cleaned
them with saline. She observed there were two .3 cm abrasions
on Wagner's left arm, with no bleeding. ECF 28 at 7-8. A
1.5 cm laceration on Wagner's right arm stopped bleeding
on its own. Id. at 8. Clark determined sutures and
dressing were not indicated. Id.; ECF 26-5, ¶
5. Plaintiff's socks were removed because he complained
of left ankle pain, but no swelling, bruising, or abrasions
were observed. ECF 28 at 8; ECF 26-5, ¶ 5.
reported pain at his left temple, but Clark observed no
bruising, swelling, or bleeding in that area. ECF 28 at 7.
Examination of Wagner's eyes revealed normal pupillary
reaction and his extraocular muscles were intact.
Id. at 7-8; see also ECF 26-5.
evening, at 8:04 p.m., Robert Claycomb, RN examined plaintiff
for injuries to his “left eye area, ” right hand,
mouth, and throat. Claycomb cleaned the left
“periorbital area” and applied antibacterial
ointment. ECF 28 at 9; ECF 26-5, ¶ 6. Wagner's arm
and hand abrasions were covered with Band-Aids. Claycomb
observed no open, bleeding areas in Wagner's mouth.
Wagner's right palm had a small, superficial scratch and
there was a small nick in the skin. Hunt applied Band-Aid
adhesive strips to the areas. Hunt inspected Wagner's
mouth for open and bleeding areas. During the medical visit,
Wagner voiced no further complaints. ECF 28 at 9; ECF 26-5,
September 25, 2014, at 11:10 p.m., James Hunt, RN examined
Wagner for a complaint of vomiting blood. ECF 28 at 10. Hunt
found no source for the bleeding, but noted that staff
indicated Wagner causes himself to bleed. Id. Hunt
advised Wagner to increase his fluid intake and to call
custody staff before throwing up. Id.
medical records show that he was seen repeatedly by medical
staff between September 24, 2014 and December of 2014, for
complaints relating to his medical issues, which Dr.
Robustiano states were preexisting and unrelated to the use
of force incident. These included back pain, vomiting, blood
in his stool, asthma, psoriasis, and dental issues. ECF 26-5,
¶ 7; ECF 28 at 10-34. At his October 16, 2014 medical
visit, Wagner was provided stool cards for his complaints of
blood in his stool. ECF 28 at 13. During his next visit on
October 20, 2014, Wagner complained that he had been vomiting
“for months.” ECF 28 at 15. The record states
that blood in the vomit was not observed. Id. A
complete blood count (“CBC”) and a comprehensive
metabolic panel (“CMP”) were ordered.
Id. Wagner's medical record for October 27,
2014, indicates the stool cards returned positive for blood,
and he was scheduled to see a physician. ECF 28 on 20.
October 31, 2014, Ava Joubert, M.D. saw Wagner. ECF 28 at
21-24. Joubert concluded Wagner's bleeding was attributed
to an adverse reaction to Motrin, which Wagner has taken for
his psoriatic arthritis. Id. at 22; ECF 33-20 at 8.
On December 1, 2014, Dr. Mahmood Ashraf, M.D, ordered an
optometry consultation for Wagner to address his vision
complaints. ECF 33-20 at 11.
Barrera opined, to a reasonable degree of medical
probability, that Nurse Clark provided care to Wagner after
the use-of-force incident that “was medically
appropriate and within the applicable standard of
care.” ECF 26-5, ¶ 9. He rendered the same opinion
as to care provided by other medical personnel. Id.
State Defendants dispute Wagner's account of the incident
on September 24, 2014. In support of the State's Motion,
State Defendants Warden Frank B. Bishop, Jr.; Lt. Bradley A.
Wilt; Sgt. Brian G. Iames; C.O. II Dean W. Rounds, Sr.; C.O.
II Cody W. Gilpin; and C.O. II Warren G. Mallow have filed
various exhibits, including declarations, a DVD video
recording, photographs of Wagner taken after the
incident, verified medical and correctional records, and a
copy of the lengthy IID report.
Serious Incident Report
Serious Incident Report is dated September 24, 2014, at 2:09
p.m. ECF 43-1 at 1. It indicates that at approximately 12:15
p.m. on September 24, 2014, Gilpin, Rounds, and Mallow were
returning Wagner to his cell in Housing Unit #1-C-3-S after
an interview. ECF 43-1 at 3.Wagner, who is a maximum
security Level I inmate, was on staff alert status, in leg
and hand restraints, with a security tether. Upon entering
the cell, Wagner became verbally disruptive and threatened to
spit on the officers. Id. Once in the cell, Wagner
kneeled on the bunk so the officers could remove his leg
restraints. Mallow removed the leg restraints, as Gilpin and
Rounds backed out of the cell while maintaining control of
the security tether and Wagner. At that point, Wagner turned
his head toward Gilpin and Rounds and spit on them.
Id. Gilpin and Rounds placed their hands on
Wagner's shoulder to prevent any further assault. The
officers exited the cell while maintaining control of the
security tether and walked Wagner back to the cell door. Once
the cell door was secured, Wagner began to resist staff by
trying to pull away from the security slot. After orders were
given to remove the handcuffs, Wagner complied. The
restraints were removed and the security slot was secured.
report does not indicate that Wagner was injured or needed
medical treatment. But, injury report packets were completed
for Officers Gilpin and Rounds, both of whom refused medical
refused to provide a statement or cooperate for
photographs. ECF 43-1 at 3; ECF 33-11 at 42 (Gilpin
Information Report Form). The Offender's Statement
Form, dated September 24, 2014 at 1:00 p.m., provides:
“Inmate Wagner refused to provide a written
statement.” ECF 33-11 at 49. Neither Wagner nor a
witness to his refusal signed the document. Id.
Officer Cody wrote in the Notice of Rule Infraction, prepared
on September 24, 2014, that Wagner refused to cooperate or
allow photographs after the incident. ECF 33-11 at 55.
p.m., IIU Detective Mack was notified about the incident by
Captain Ronald Ketterman, and the incident was placed in the
Barracks Log. Id. at 3-4, 8; ECF 43-1 at 3. The IIU
Notification Report prepared for the incident states that
Wagner provided a written statement during the 3-11 shift.
ECF 33-8 at 1; ECF 33-11 at 4; see also 43-1 at 1
(Serious Incident Report).
IIU Notification Report
were taken of Wagner and his cell (HU #1-C-3S) at
approximately 5:40 p.m. on September 24, 2014. ECF 33-8 at
5-10. Wagner wrote an inmate statement alleging that officers
on the 7-3 shift assaulted him, injuring the left side of his
face. Id. at 11. The copy of Wagner's statement
provided to the court is illegible. ECF 33-8; see
also ECF 33-2 n. 14.Based on Wagner's
allegations of assault and injury to his left eye, Lt.
William Gillum compiled an IIU Notification Report on
September 24, 2014, which he forwarded to Detective
Christopher Burton at DPSCS. ECF 33-7, ¶ 5. The IIU
Notification Report Form states that a Serious Incident
Report was prepared during the 7-3 shift and assigned case
number NBCI-14-045. ECF 33-8 at 1. Further, the form
indicates that plaintiff was removed from his cell during the
3-11 shift, treated by medical staff, photographed, and
returned to his cell without incident. Id.
Detective Burton interviewed Wagner on October 8, 2014.
Wagner's account of the September 24, 2014 incident, as
recounted in the IID report, is consistent with his
allegations in the Complaint. ECF 33-11 at 6. Therefore, I
need not restate it.
October 14, 2014, Burton interviewed Iames, Gilpin, Rounds,
and Mallow with respect to the incident of September 24,
2014. The report summarizes the interviews as follows.
Iames said Wagner was escorted to his cell by Officers Rounds
and Gilpin. Rounds and Gilpin waited outside the cell with
Wagner while Iames entered the cell to remove items Wagner
was not permitted per staff alert procedures. Wagner became
agitated, informed the officers that he had AIDS and
threatened to spit on them. Iames left the cell to retrieve a
spit mask and tether. When he returned to the cell, the cell
door had been secured and Wagner's leg irons and
handcuffs had been removed. Iames attempted to talk to Wagner
through the door, but Wagner kept spitting blood on the cell
window. Iames asserted that “no one laid hands on
Inmate Wagner; officers simply re-directed him and did not
use force.” ECF 33-11 at 7. Iames explained there was
no Use of Force Report written because no force was used.
Iames states Wagner bit his own lip so that he could spit
blood on the officers. Id.
Gilpin told Burton that Wagner became very agitated as his
property was removed from the cell. Wagner started to bite
his lip and threated to spit at officers. Iames left the cell
to find a spit mask. Gilpin and Rounds escorted Wagner into
the cell. Wagner refused to kneel on the bunk so that his leg
irons could be removed. Instead, Wagner lifted his legs up
and the shackles were moved. As Gilpin and Rounds escorted
Wagner towards the cell door to remove the handcuffs, Wagner
turned over his right shoulder and spit, hitting Gilpin on
the right arm. To stop Wagner from spitting, Gilpin extended
his arms onto Wagner's back and right bicep to push him
against the wall. Gilpin said Wagner's chest was in
contact with the wall, but his face did not hit the wall.
Rounds maintained hold of Wagner's left arm. Wagner
continued to spit. Gilpin and rounds managed to back Wagner
up to the cell door and he was secured. As the slot in the
cell door closed, Wagner spit blood, which hit Rounds's
left arm. Apart from Wagner's self-inflicted lip bite,
Gilpin did not observe any bruising or other injury on
Wagner. Gilpin indicated Officer Mallow was also present.
Rounds told Detective Burton that Iames removed contraband
items from Wagner's cell. Wagner bit his lip, claimed he
had AIDS, and threatened to spit. ECF 33-11 at 8. Iames left
the cell. Rounds and Gilpin then escorted Wagner into the
cell. Rounds stated that either Iames or Gilpin removed
Wagner's leg irons. Once they were removed, Wagner turned
and spit onto Gilpin's arm. Rounds and Gilpin leaned
Wagner against the wall. Rounds does not recall Wagner's
face hitting the wall. While against the wall, Wagner
continued spitting at the officers. By the time Iames
returned, Wagner was at the cell slot. Rounds and Gilpin
backed out of the cell, using a tether which was already
attached between the handcuffs. The cell door was secured and
Wagner placed his hand in the cell slot to allow the officers
to remove the handcuffs. Once Gilpin removed the handcuff
from Wagner's right arm, Wagner bit his lip and spit
blood, hitting Officer Rounds on his left arm. Rounds stated
no other officers entered the cell, and he denied observing
any officer assault or use excessive force against Wagner.
Mallow stated that he assigned Cody and Gilpin to escort
Wagner to his cell on September 24, 2014. As they arrived at
the cell, Wagner became verbally aggressive and threatened to
spit in the officers' faces. Consistent with “staff
alert” procedures, Iames entered Wagner's
cell and removed Wagner's property. ECF 33-11 at 9. After
Iames exited, Gilpin and Rounds escorted Wagner into the
cell. Mallow removed Wagner's leg irons. Once the leg
irons were removed, Gilpin and Rounds attempted to back
Wagner to the cell door to remove the handcuffs and security
tether. Wagner turned over his right shoulder and spit at the
officers, striking Gilpin and Rounds. Gilpin and Rounds
redirected Wagner toward the cell wall to prevent further
assault. Wagner was backed to the cell door and the door was
secured. Wagner placed his arms in the security slot and
Officer Mallow started to remove the handcuffs. Wagner began
pulling his arms inside the slot to break away.
the security tether, Mallow maintained control over Wagner
and ordered him to stop. Wagner complied and the security
slot was secured without further incident. Mallow denied that
he slammed Wagner's head into the wall. Moreover, Mallow
claimed he did not observe any other officer strike, hit, or
Report reads, ECF 33-11 at 9:
Officer Mallow advised that none of the officer [sic] struck
or hit Inmate Wagner. In addition, Officer Mallow advised
that a few minutes after the incident, he went back to the
cell to speak with Inmate Wagner. Officer Mallow stated the
he told Inmate Wagner that he did not have any problems with
him and informed him that he needed to calm down.
Burton reviewed surveillance video which provided three
angles of C-Wing: the lobby, bottom tier, and the top tier.
His report summarizes the chronology of the recording, which
I have rephrased slightly. See ECF 33-11 at 10-11;
see also ECF 33-12.
12:08:50 p.m. - Inmate Wagner is escorted to C-Wing by
custody staff. Officer Rounds is holding onto Wagner's
left arm while Officer Gilpin holds onto his right arm.
12:09:14 p.m. - The escorting officers arrive at Cell 1-C-3.
Sgt. Iames and Officer Mallow walk towards the cell.
12:09:19 p.m. - IIU Detective Corey McKenzie leaves H.U. #1,
and Sgt. Iames enters Cell 1-C-3. Officers Rounds, Gilpin,
and Mallow remain outside of the cell with Wagner.
12:10:48 p.m. - Sgt. Iames exits the cell with Wagner's
property, walks away to retrieve a cart, and re-enters the
cell at 12:11:08 p.m.
12:12:35 p.m. - Sgt. Iames exits the cell with additional
property in his hand, places the items on the cart, and walks
beyond the view of the surveillance camera, while plaintiff
is escorted into the cell by Officers Rounds and Gilpin.
Officer Mallow followed close behind them.
12:13:05 - Sgt. Iames enters the surveillance camera's
coverage, and stood outside the ...