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Wagner v. Iames

United States District Court, D. Maryland

February 27, 2017

JOHN ALEXANDER WAGNER, #371-133 Plaintiff,
v.
BRIAN G. IAMES, DEAN W. ROUNDS, SR. CODY W. GILPIN, WARREN G. MALLOW, FRANK B. BISHOP, JR. BRADLEY A. WILT, NP JANETTE CLARK Defendants.

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge.

         John 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.[1] Wagner's Complaint, with numerous attachments, totals almost 100 pages. ECF 1; ECF 1-1; ECF 1-2; ECF 1-3; ECF 1-4.

         Wagner 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 10-11.[2]

         The Complaint is lengthy and repetitive.[3] 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.[4]

         Defendant 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.

         Also 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.

         No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2016).

         I will 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.

         I will 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).

         I. Wagner's Contentions

         A. The Incident of September 24, 2014

         Wagner 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, 5.[5] 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.[6]

         Wagner 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.[7] 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.

         When 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.[8] 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.

         Wagner 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.

         Wagner 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.[9]

         Plaintiff 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.

         Wagner 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, ¶ 50.

         According 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.[10] Wagner asserts a hand held video camcorder was used to record the incident. Id. at 6, ¶64.[11] On September 30, 2016, Wagner wrote to Wayne A. Webb, Regional Executive Director, complaining about the incident. ECF 33-19 at 21.

         B. Medical Claim

         Wagner avers that Defendant Janette Clark, a Nurse Practitioner, ignored his injuries. ECF 1-1 at 8, ¶ 83.

         Wagner 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.

         Wagner 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.

         Clark 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.

         The 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. Id.

         Wagner 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.

         Plaintiff 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.

         C. Due Process

         Wagner 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. Id.

         On the evening of September 24, 2014, Officer Earl “Ritchie”[12] 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.

         Wagner 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.

         The 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.

         Notably, 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.

         D. Declarations of Other Inmates

         Wagner 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.

         Wimbush 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.

         Solomon 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.

         In his 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.

         Singletary 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 direction. Id.

         According 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.

         Anthony 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.

         Cohen 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 49.

         Courtny 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.

         Derrick 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 at 53-54.

         II. Defendants' Responses

         A. Janette Clark

         In 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), [13] 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.

         Wagner's 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, ¶ 5.

         Clark 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.

         Wagner 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.

         That 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, ¶ 6.

         On 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.

         Wagner's 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.

         On 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.

         Dr. 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. ¶ 10.

         B. State Defendants

         The 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, [14]photographs of Wagner taken after the incident, verified medical and correctional records, and a copy of the lengthy IID report.

         1. Serious Incident Report

         The 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.[15]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. Id.

         The 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 treatment. Id.

         Wagner refused to provide a statement or cooperate for photographs.[16] ECF 43-1 at 3; ECF 33-11 at 42 (Gilpin Information Report Form).[17] 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.

         At 1:15 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).

         2. IIU Notification Report

         Photographs 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.[18]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. [19]

         3. IID Report

         a. Interviews

         IID 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.

         On 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.

         1. Iames

         Sgt. 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.

         2. Gilpin

         Officer 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.

         3. Rounds

         Officer 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. Id.

         4. Mallow

         Officer 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”[20] 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.

         Using 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 slam Wagner.

         The IID 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.

         b. Video Recording

         Detective 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 ...

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