United States District Court, D. Maryland
ALTON W. CUMBO, #41228 Plaintiff
RICHARD D. DOVEY, LIEUTENANT STEVEN THOMAS, CO II COREY SWISHER, CO II JEREMY HARMAN, CO II MIGUEL REYES-ZETINA, Defendants
Frederick Motz United States District Judge
is Alton W. Cumbo's complaint filed pursuant to 42 U.S.C.
S 1983. Defendants have filed an unopposed motion to
d1Smiss or, in the alternative, motion for summary
judgment (ECF No. 19). After considering the pleadings, exhibits,
and applicable law, the court determines that a hearing is
unnecessary to resolve the issues, see Local Rule
105.6 (D. Md. 2016), and the court will grant defendants'
motion, which it will construe as a motion for summary
W. Cumbo is presently incarcerated at Eastern Correctional
Institution? He claims that on October 2, 201,,
correctional officers at the Maryland Correctional Training
Center in Hagerstown, Maryland ("MCTC") assaulted
him, used pepper spray on him, and denied him medical care.
ECF NO.1. He alleges Officers Harman Swisher, and
Reyes-Zetina kicked and punched him when they escorted him
from the inmate dining hall to the 1-1 Receiving and J.D.
area. Cumbo claims he was thrown into a cell for
approximately five minutes until Lieutenant Thomas ordered
the door opened, and Cumbo was taken for a medical
evaluation. Cumbo claims that while he was being escorted for
medical evaluation, he saw Warden Richard D. Dovey, and
attempted to inform him of what had happened. ECF NO.4 at 4.
Cumbo alleges Dovey just walked off without speaking to him.
Id. Cumbo alleges he could not walk the remainder of
the way and arrived at the medical unit on a stretcher.
Id. He claims that when he arrived at the medical
unit, he was denied medical attention for the pepper spray in
his eyes and for his leg injury. Id. Cumbo claims he
was transferred to Western Correctional Institution
("WCI") in Cumberland, Maryland where he was denied
medical attention. He further alleges that he is being
"targeted." because he is a member of the Bloods
and assaulted a correctional officer. ECF No. 1 at 4. Cumbo
states that on an unspecified day he was denied medical
attention and a decontamination shower by Officer N. Ellis
and Lt. R. Carder. ECF NO.1. at p. 4. As relief, he asks for
immediate transfer to a correctional facility in a different
region and $5, 500, 000.00 damages. (ECF I, p. 3; ECF 4, p.
filed this complaint on November 4, 2015, against J.T. Butler
and Warden Richard Graham. ECF 1. On November 6, 2015, the
court ordered Cumbo to supplement the complaint to name the
individuals involved. ECF NO.3. On November 30, 2015, Cumbo
submitted the court directed supplement to name Warden
Richard Dovey, Steven Thomas, Corey Swisher, Jeremy Harman,
Miguel Reyes-Zetina, and Ronald B. Brezler as defendants. ECF
No. 4. On December 2, 2015, the court dismissed Graham,
Butler, and Brezler because the complaint contained no claims
against them, and added Steven Thomas, Corey Swisher, Jeremy
Harman, and Miguel Reyes-Zetina as defendants. ECF NO.5.
have submitted declaration,, verified exhibits. ECF No.
This information reveals that on October 2, 205,, at 6:30
p.m., Cumbo assaulted correctional Officer Christopher Grubbs
at MCTC, after he was caught taking cookies from the inmate
dining room. ECF No 19-4 (investigation records) at pp. 26,
29, 30, 31, 32, 33, 37. Cumbo was in the chow line when
Officer Lauren Baker ordered him to give up the cookies.
After Cumbo laughed, stuffed a cookie in his mouth, and
turned to walk away, Baker motioned to Grubbs' to stop
him. Cumbo shoved Grubbs and punched him in the face with
closed fists. Grubbs called for assistance. ECF No. 19-4;
19-5 (Deck of Lauren Baker); 19-7 (Deck of Christopher
Grubbs); 19-8 (Deck of Brandon Roy). Officer Brandon Roy was
in the inmate dining room responded. Cumbo swung at Roy twice
with a closed fist. ECF No. 19-8. Roy grabbed Cumbo's
right wrist and placed it behind his back using an arm bar
hold while Cumbo tried to pull away. Roy gave Cumbo several
direct orders to stop and get on the floor, but Cumbo refused
to comply. Id. As Roy struggled to gain control of
Cumbo, Grubbs administered a short burst of pepper spray to
Cumbo's face. Officers Harman and Swisher arrived on the
scene, handcuffed Cumbo, and escorted him to the Receiving
and I.D. area. Id; ECF No. 19-9 (deck of Jeremy
Harman); ECF No. 19-10 (deck of Corey Swisher). During the
escort, Cumbo stated "I'm a blood, do you know who 1
am? Don't touch me." ECF No 19-4 at pp. 20, 28.
Harman and Swisher state that during the escort Cumbo became
combative and refused to walk on his own. ECF No. 19-9; ECF
No. 19-10. He was escorted to Receiving and ID where he was
placed in a cell without further incident. Id.
Harman and Swisher attest that at no time did they or any
other correctional officer in his presence assault Cumbo.
Reyes-Zetina was assigned to J-1 post in the
Receiving and I.D. area and did not escort Cumbo. ECF No.
19-11 (decl. of Steven Thomas). Reyes-Zetina was not asked to
assist in escorting Cumbo and did not assist in placing him
in the holding cell. Id. at -4, -5; ECF No. 19-12
(assignment worksheet). ECF 19-13 - 4, (decl. of Miguel
Reyes-Zeiina.. Reyes-Zeiina states in his declaration that he
was not a participant or a witness to any beating, harassment
or retaliatory action against Cumbo in the Receiving and I.D.
area on October 2, 2015. ECF No. 19-13.
approximately 6:30 p.m., Officers Joshua Vardy and Eric
Quackenbush escorted Cumbo to the hospital infirmary for
medical treatment without incident. ECF No. 19-4 at pp. 6,
11, 13, 15, 18; ECF No. 19-14 (decl. of Joshua Vardy); ECF
No. 19-15 (decl. of Eric Quackenbush).
Bickford, R.N. evaluated Cumbo shortly thereafter. ECF No.
19-4. Her report is dated October 2, 2015, 6:33 p.m. and was
signed at 6:50 p.m. Id. She observed that Cumbo
walked with a steady gait and without assistance. His vital
signs were within normal limits, he was alert, and his lungs
were clear. ECF No. 19-4 at p. 34. Bickford observed no
bruising, abrasions, or contusions. She noted Cumbo showed no
signs of physical trauma and or acute physical distress.
Id. Cumbo walked back to his housing unit escorted
by officers. Id. Photographs were taken of Cumbo,
Roy, and Grubbs. Id. at p. 13. Cumboss property
was packed and inventoried and he was transported to WCI.
Id. at p. 13.
Brian Reed, completed the Division of Correction's
investigation of the incident. Reed reviewed the reports of
the incident and concluded that the force used (spontaneou,,
chemical agent, defensive holds) was applied in good faith
for the purpose of self-defense due to an active assault by
Cumbo, and the force was applied for the purpose of gaining
control of a noncompliance inmate. ECF No. 19-4 at p. 15.
Reed indicated that due to the nature of the incident, Cumbo
was transferred immediately to WCI. On October 3, 2015, Reed
contracted Lt. Miller at WCI, and requested that Cumbo be
given the opportunity to provide a written statement which
Cumbo declined to do. Id.; ECF No. 19-4 at p. 24.
filed ARP #WCI-1996155 concerning the October 2, 2015
incident on November 17, 2015. ECF No. 19-6. The ARP was
dismissed on November 18, 2015 for procedural reasons per DCD
185-003.VI.N.4. since the alleged incident was being examined
by the IID Id.Plaintiff did not file a
Headquarters' appeal or a grievance to the Inmate
Grievance Office. ECF No. 19-18, 19-19. On November 16, 2015,
an Application for Statement of Charges was prepared and
filed in the District Court of Maryland for Washington
County, charging Cumbo with Second Degree Assault of
Department of Corrections employee Christopher Grubbs. ECF
No. 19-4 at p. 42-44.
judgment is proper when the moving party demonstrates,
through particular parts of materials in the record,
including deposition,, documents, electronically stored
information, affidavits or declaration,, stipulations ...,
admission,, interrogatory answers, or other materials, "
that "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v.
City of Greensboro,714 F.3d 828, 833 (4th Cir. 2013).
If the party seeking summary judgment demonstrates that there
is no evidence to support the nonmoving party's case, the
burden shifts to the nonmoving party to identify evidence
that shows that a genuine dispute exists as to material
facts. See Celotex v. Catrett,477 U.S. 317 (1986).
The existence of only a "scintilla of evidence" is
not enough to defeat a motion for summary judgment..
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). Instead, the evidentiary materials submitted
must show facts from which the finder of fact reasonably
could find for the party opposing summary judgment..
Id. "In ruling on a motion for summary
judgmen,, this ...