United States District Court, D. Maryland
Frederick Motz United States District Judge.
above-entitled case was remanded to this court by the Fourth
Circuit Court of Appeals for consideration of plaintiffs
claim against defendants Preston, Wolford, and McAlpine
subjected him to excessive force during a cell extraction
that took place on January 17, 2013, at North Branch
Correctional Institution ("NBCI".. See Germain
v. Wexford Health Services, Inc., et al., Slip Op. No.
16-6117 (4th Cir. 2016) at ECF 149. Plaintiff subsequently
voluntarily dismissed the claim against McAlpine. ECF 153
& 154. Defendants Preston and Wolford filed a motion to
dismiss or for summary judgment (ECF 158) which is opposed by
plaintiff (ECF 161). For the reasons that follow,
defendants' motion to dismiss or for summary judgment
must be denied.
pending are plaintiffs motion for reconsideration (ECF 156)
of this court's order (154) on his motion for leave to
file an amended complaint (ECF 153); and a motion to appoint
counsel (ECF 160). In his motion for reconsideraiion
plaintiff states that his amended complaint, naming as a
defendant Officer Marken, was based on his 2014 review of
video footage of the cell extraction which established
conclusively that McAlpine was not inside his cell and could
not have been the person who twisted his ankle. ECF 156 at
pp. 2 - 3. Upon review of the video recording in 2014,
plaintiff states he became aware of a "possible cause of
action against defendant Marken." Id. at p. 3.
Plaintiff assigns error to this court's finding that the
claim as to Marken, raised for the first time in the amended
complaint (ECF 152) filed on December 21, 2016, was filed
outside the statute of limitations because he did not
discover the cause of action until he reviewed the video
footage of the cell extraction on an unspecified date in
2014. ECF 156 at pp. 5-6.
did not include this discovery theory for purposes of the
statute of limitation in his motion for leave to file an
amended complaint. ECF 152. Plaintiff reviewed the video
footage from the housing unit tier on March 28, 2014, and the
video footage from the hand-held video camera on March 31,
2014. ECF 96. Further, plaintiff was given the opportunity to
review his prison base file on March 25, 204,, and provided a
copy of the Use of Force Report on March 31, 2014. Id.
A copy of the Internal Investigation Unit
("IIU") report was provided to plaintiff on April
17, 2014. Id. Plaintiff had adequate information to
both surmise that McAlpine was not inside the cell during the
extraction and that Officer Marken was a member of the
extraction team since April 17, 2014, yet he waited until
December 21, 2016, to dismiss his claim against McAlpine and
name Marken as a defendant. This court finds that permitting
the proposed amendment would be prejudicial to Marken, who
would now be called upon to answer claims that are more than
four years old. Leave to amend a complaint may be denied
where, as here, "the amendment would be prejudicial to
the opposing party, there has been bad faith on the moving
party, or the amendment would be futile." Edwards v.
City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999).
Plaintiffs motion for reconsideration shall be denied.
leave plaintiffs motion to appoint counsel (ECF 160) for
decision by the magistrate judge to whom I am assigning the
relevant factual background for purposes of defendants'
pending dispositive motion was stated by the Fourth Circuit
in the opinion remanding the case in part as follows:
Germain claims that Preston beat him on his head and face,
knocking a tooth loose, and that either Wolford or McAlpine
twisted his right foot, causing severe pain.
We observe that neither Preston, Wolford, nor McAlpine
addressed Germainss claim that, during the cell extraction,
he was punched in the face, knocking a tooth loose, and had
his right foot twisted in such a way to cause severe pain.
The Defendants did not refute the claim or show that the use
of such force was justified under the circumstance..* In
light of the fact that these three Defendants failed to
address this particular claim, we are compelled to vacate
that part of the court's order addressing this claim and
remand for further proceeding..
ECF 149 at pp. 5-6. As noted, plaintiff dismissed his claims
against McAlpine, leaving only defendants Preston and Wolford
assert that on January 17, 2013, plaintiff breached security
when he tied one end of a bed sheet around the security slot
door located on his cell door and the other end around his
bed. McAlpine claims he tried to resolve the problem through
use of "Confrontational Avoidance Techniques" so
that plaintiff could comply with orders to allow the security
slot to be secured, but those attempts were unsuccessful. ECF
158 at Ex. 1, p. 2. Plaintiff had also covered the cell
window and the light in his cell. Id. at p. 3.
McAlpine was given authority to assemble a Planned Use of
Force Team (a.k.a.: "extraction
team"). Id. at p. 2.
Simpson, a trained negotiator, attempted further negotiations
with plaintiff, but those efforts also failed and plaintiff
was then advised that if he did not come to the cell door,
force would be used against him to gain compliance with
orders. Id. at pp. 2 - 3. At that time, McAlpine
sprayed a short burst of pepper spray under the door of the
cell and more orders were given to plaintiff to come to the
door. Id. at p. 3. Plaintiff ignored the orders and
another short burst of pepper spray was deployed into the
cell. Id. Pepper spray was not used again after this
the extraction team entered the cell, defendants claim that
plaintiff charged the shield being carried by the team member
in front, Officer Preston. Id. at Ex. 2 (Use of
Force Report). Plaintiff made this charge from the opposite
side of the cell from the door. Id. Officers Preston
and Robinson pushed plaintiff backwards and down onto the
floor. Id. Preston removed the shield from on top of
plaintiff and attempted to control him, but plaintiff rolled
back and forth on the floor and Preston punched plaintiff
with a closed fist in his torso in an effort to control his
conduct. Id. When plaintiff complied, shackles were
placed on his ankles by Officer Wolford and he was then
escorted to the medical unit. Id. Wolford was the
fourth man on the extraction team to enter plaintiffs cell
and he was directed to control plaintiffs legs. ECF 158 at
Ex. 3. Once plaintiff was under control, Wolford put shackles
on plaintiffs ankles. Id.
request of Lt. Bradley Wilt, the use offorce was investigated
by Detective Peterson of the IIU. ECF 158-5 at p. 18. Prior
to the investigation, Lt. William Miller concluded that the
use of force against plaintiff was proper and that the
officers' conduct was consistent with Correctional
standards as set forth in the Use of Force Manual.
Id. at p. 16. Petersonss report notes that plaintiff
"sustained a loose upper front tooth and a small cut to
his bottom lip" and that "there ...