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Crudup v. Webster

United States District Court, D. Maryland

September 25, 2017

DON CRUDUP Plaintiff


          James K. Bredar, United States District Judge.

         In response to these consolidated cases, defendants filed motions to dismiss or for summary judgment. ECF 24 and 27. Shortly after defendants filed their dispositive motions, counsel entered his appearance on behalf of plaintiff and moved for an extension of time to and including July 26, 2017, in which to file an opposition response. ECF 30. Although the motion was granted, the dispositive motions remain unopposed. ECF 31. No hearing is required to address the matters pending. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, the unopposed motions[2] shall be granted.


         Plaintiff Don Crudup, an inmate committed to the custody of the Department of Public Safety and Correctional Services and confined at Eastern Correctional Institution (ECI), asserts that on September 1, 2016, his prescribed cane was taken from him by the facility administrator for ECI-Annex, Darryl Webster. ECF 1 at p. 3. As a result, Crudup claims he injured his right leg. Id.

         Crudup provides what he asserts is a verbatim copy[3] of an incident report written by Officer Tyndall documenting the circumstances under which his cane was confiscated. ECF 1 at pp. 5- 6. Tyndall was assigned to escort Crudup and informed Crudup that he was going to confiscate the homemade shorts he was wearing and told him he had to wear state-issued jeans. Id. at p. 5. Crudup refused to wear the jeans despite being ordered to do so three times. Id. During this encounter, Tyndall relates that Webster came onto the housing unit and began to inquire about Crudup's cane. Id. at p. 6. Crudup produced paperwork indicating he had been prescribed the cane by medical staff, but Webster was told by medical staff that Crudup did not have a medical order for a cane. Id. Consequently, Webster confiscated the cane. Id.

         Crudup further avers that an additional report written by Officer C. Fontaine indicates that he was given a direct order by Webster to retrieve a cane from Crudup. ECF 1 at p. 7. Fontaine stated that Crudup refused several orders to relinquish the cane and that force was “almost used by FA Webster and [Fontaine]” to recover the cane. Id. Fontaine then allegedly wrote that Crudup told Webster, “you can stick that cane up your ass.” Id.

         Crudup states that Fontaine's report does not mention a struggle “back and forwards” between himself and Webster “while [Crudup] was handcuffed from behind threw (sic) this incident.” ECF 1 at p. 8. Crudup also maintains there is a discrepancy among the reports regarding who gave him a direct order to relinquish the cane and that Fontaine left out information about Webster attacking him and pulling the cane away. Id.

         In his supplemental complaint, [4] Crudup claims that after Webster took his cane he made a request for a replacement cane to the medical provider, Wexford Health Sources, Inc., and it took 41 days to receive another cane. ECF 4 at p. 3. Crudup states that when he requested the cane, “the provider stated that the facility administrator Mr. Webster stated for me not to have this.” Id. Crudup claims that the response “puts them in error of negligence for not providing medical equipment.” Id. He names only Deborah Tabulov as the defendant for this claim. Id. at p. 1.

         Crudup further alleges in a second supplement that Tyndall's Notice of Infraction and his testimony during the disciplinary adjustment hearing differed regarding whether he saw paperwork stating that Crudup had a medical condition requiring his use of a cane. ECF 6 at pp. 1-2. Crudup states that “[i]t's clear to see that untruthfulness occurred during [Tyndall's] report to cover up what he saw during the incident.” Id. Tyndall's Notice of Infraction indicates that “Crudup produced the paperwork” that Webster requested to establish that Crudup had a medical order of a cane, but that “Webster stated that medical did not have.” ECF 6-1 at p. 1. During the hearing, Tyndall's testimony is recounted as indicating that “[t]he paperwork [Crudup] had did not match up with what was in medical” and that “[w]e went through his paperwork we found it was from another institution.” Id. at p. 3. Tyndall indicated that he never saw paperwork from ECI-Annex stating that Crudup was disabled and that he needed a cane. Id.

         Crudup indicated during his disciplinary hearing that the entire incident concerned him shadow boxing and using a medicine ball and was not about his shorts or his possession of a cane. ECF 6-1 at p. 3. He claimed he was showing Webster that “boxing and use of a medicine ball was not martial arts” and that Webster “got mad and said, 'you are out of here' do what my officers tell you to do follow [sic] the rules.” Id. Crudup further maintained that the reporting officer did not report the full details of the incident and denied telling Webster to shove or stick the cane “up your ass.” Id.

         An administrative remedy procedure complaint (“ARP”) filed by Crudup on September 15, 2016, was found meritorious in part by Warden John Wolfe. ECF 7-1 at pp. 1- 3. Crudup complained that he suffers from chronic pain syndrome and had requested on several occasions either a cane or a walker or both. ECF 7-1 at p. 1. He further states that due to issues with his spine, he walks slowly, stooped over at his waist; claims a cane was ordered for him on June 16, 2012; and the lack of response to his sick call slips poses a threat to his safety as it may cause him an injury. Id. at p. 2.

         In his response, Wolfe stated:

There was no active order for a cane, as medical providers must reassess and order annually, you did not have an active order. There was though a delay in care as you waited for your chronic care visit instead of being seen for provider sick call. On 9/1/2016 you were evaluated by the doctor. You apparently took a fall and were assessed by the physician. You complained of pain to knee and back and were admitted to the infirmary. According to that documentation, you were seen by custody exercising and no use of cane. The cane was confiscated as there was no order for the cane. The doctor also documented on 9/1/2016 that there was only mention of a cane in a 2014 document but no current order. On 9/2/2016, it was noted that you had been standing at the infirmary door waiting of food and medication independently without the use of a cane. When asked about standing unassisted by the physician, you were unable to explain. It is also documented by the physician on 9/2/2016 that the doctor offered treatment options for your knee, but you declined. The doctor noted in the infirmary that there was minimal swelling to your knee and that you no longer needed infirmary level care and was discharged back to the housing unit with no order for a cane noted. On 9/6/2016 you submitted a sick call slip in reference to a cane and seen by the nurse on 9/8/2016, the nurse noted that an email was sent to the providers about your request and mobility issues. On 9/13/2016 you submitted another sick call in reference to cane and it was noted on 9/15/2016 by the nurse that you would not comply with custody and get properly dressed to come out for your sick call visit. You were notified at the door that you would be seen for chronic care. On 9/18/2016 medical received a sick call slip from you again requesting a cane, you were advised at the door to address this concern at upcoming chronic care visit according to the medical documentation on 9/19/2016. On 9/29/2016, a slip call [sic] was received in reference to a cane. According to nurse note 9/30/2016, you walked up to the medical room in segregation independently with a limp, you were again deferred to chronic care. On 10/6/2016 you were seen in chronic care to address his [sic] chronic pain. At the time of this visit, you complained of pain and your pain medications were changed and x-rays were ordered for your ...

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