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Cumbo v. Dovey

United States District Court, D. Maryland

March 13, 2017

ALTON W. CUMBO, #41228 Plaintiff
v.
RICHARD D. DOVEY, LIEUTENANT STEVEN THOMAS, CO II COREY SWISHER, CO II JEREMY HARMAN, CO II MIGUEL REYES-ZETINA, Defendants

          MEMORANDUM

          J. Frederick Motz United States District Judge

         Pending 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).[1] 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 judgment.

         BACKGROUND

         Alton W. Cumbo is presently incarcerated at Eastern Correctional Institution?[2] 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.[3] 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.[4] 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. 3).[5]

         Cumbo 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.

         DEFENDANTS' RESPONSE

         Defendants have submitted declaration,, verified exhibits. ECF No. 19.[6] 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.[7] 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. Id.

         Officer 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.

         At 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).

         Kelly 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.[8] Id. at p. 13. Cumboss property was packed and inventoried and he was transported to WCI. Id. at p. 13.

         Lt. 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.[9] 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.

         Cumbo 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.[10]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.[11]

         STANDARD OF REVIEW

         Summary 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 ...


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