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Germain v. Wexford Health Sources Inc.

United States District Court, D. Maryland

September 10, 2017

JEAN GERMAIN Plaintiff
v.
RICHARD RODERICK, et al. Defendants

          MEMORANDUM

          J. Frederick Motz United States District Judge.

         The 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[1] (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.

         Also 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.

         Plaintiff 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.[2] 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.

         I will leave plaintiffs motion to appoint counsel (ECF 160) for decision by the magistrate judge to whom I am assigning the case.

         l. BACKGROUND

         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 as defendants.

         Defendants 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").[3] Id. at p. 2.

         Officer 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 occasion. Id.

         When 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.

         By 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 ...


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