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Phillips v. Saibu

United States District Court, D. Maryland

February 8, 2019




         Self-represented Plaintiffs Davon Phillips and Alton W. Cumbo filed this lawsuit pursuant to 42 U.S.C. § 1983. They raise Eighth Amendment claims of excessive force and denial of treatment for exposure to pepper spray arising from an incident on September 23, 2017, at Jessup Correctional Institutional (JCI) in Jessup, Maryland. Defendants Sergeant Ademola Idowu and Correctional Officers Oriyomi Boboe, Milton Tarkang, Abeeb Kazeem, Ademola Adeniyi, and Oluwemimo Saibu have filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, which they supplemented. ECF Nos. 21, 24.[1] A hearing is not necessary. See Loc. R. 105.6. For the following reasons, Defendants' Motion will be granted as to all but the excessive force claim against Kazeem and denied without prejudice as to that claim only.


         Plaintiffs, who were cellmates at the time of the incident at issue, claim that Saibu, Boboe, Tarkang, Kazeem, Idowu, and four unknown officers approached their cell on September 23, 2017, at 10:00 p.m., with the intent to use excessive force. According to Plaintiffs, Idowu signaled to Officer Adeniyi, who was in the control area, to open the cell door. Cumbo claims Kazeem used handcuffs like “brass knuckles” to hit him in the eye[2] and Idowu struck Phillips. Compl. 2, ECF No. 1; Phillips Supp. 3, ECF No. 8, Cumbo Supp. 5, ECF No. 12; IID Report 5, ECF No. 21-4 (Phillips reported to IID investigator that an officer hit Cumbo in the eye). In addition, Cumbo claims he and Phillips were sprayed with an unreasonable amount of “mace.” Cumbo Supp. 5, 7. Phillips claims that Kazeem and Idowu “struck” Cumbo and that he and Cumbo both were “sprayed uncontrollabl[y] with mace cans.” Compl. 2; Phillips Supp. 3. Notably, while each Plaintiff claims that Idowu struck the other Plaintiff, neither claims that Idowu struck him.

         Plaintiffs were left in the cell for approximately 40 minutes before being escorted for medical evaluation. Compl.; Phillips Supp. 3; Cumbo Supp. 5, 7. Cumbo asserts that Sgt. Idowu closed the feed-up slot, which caused the two cellmates to “suffer loss of air circulation without medical attention.” Cumbo Supp. 5, 7. Cumbo claims that he and Phillips slipped on the mace covering the cell floor and fell, causing them to injure their backs, legs, necks, and hands. Id. at 5. When they were taken to the medical room, Cumbo claims he and Phillips were “minorly treated” and escorted afterward to another cell where they remained for the rest of the evening. Id. Phillips contend that, even though they “pursued every officer that made rounds, ” they were not provided with a shower, change of clothing, or a mattress that night. Phillips Supp. 3; Cumbo Supp. 5. Cumbo claims that he and Phillips “continued to pursue every officer who made rounds on the tier, [3] but they all ignored their needs and pleas.” Cumbo Supp. 5.

         Following the incident, on November 1, 2017, Phillips filed a complaint against Defendants Saibu, Boboe, Tarkang, and Kazeem, in which he alleged they, and other unidentified officers, used excessive force against him at JCI on September 23, 2017. Compl. On November 8, 2017, Cumbo filed a separate complaint in which he included Phillips as a plaintiff.[4] Cumbo alleged that Idowu, Tarkang, Kazeem, Boboe, Saibu, and Adeniyi used excessive force against him during the same September 23, 2017 incident.[5] ECF No. 1 in PWG-17-3305. The Court consolidated both cases under Civil Action No. PWG-17-3221 on March 26, 2018. ECF No. 11. Phillips seeks $150, 000 to $800, 000 in damages and an order requiring all officers involved to be relieved of their duties. Compl. 3; Phillips Supp. 3. Cumbo is seeking $900, 000 in damages. Cumbo Supp. 9.

         Defendants filed their dispositive motion, along with declarations and verified records, including a DVD recording of the incident, and a report by the Department of Public Safety and Correctional Services' Intelligence and Internal Investigation Division (IID). Cumbo viewed the DVD on May 14, 2018. Lieutenant George Harrison, II Decl., ECF No. 24-1. Phillips viewed the DVD on May 17, 2018. Erika Fitch, Litigation Coordinator, JCI, Decl., ECF No. 24-2. Yet neither of them responded to Defendants' motion or verified any of their filings. The evidence that Defendants filed provides a different perspective than Plaintiffs' unverified filings.

         Based on the undisputed evidence, Cumbo told the IID investigator that he had thrown stale milk onto the tier floor at about 9 p.m. on the night of the incident. IID Report 4. Officer Tarkang observed what he believed to be bodily fluids thrown from cell D-C-323 (Plaintiffs' cell) and heard banging on the cell door. Tarkang Decl. ¶ 5, ECF No. 21-5. Tarkang notified Sergeant Idowu. Id.

         Idowu, Tarkang, Boboe, and Kazeem went to Plaintiffs' cell to investigate.[6] IID Report 5-6; Tarkang Decl. ¶ 6; Boboe Decl. ¶ 5, ECF No. 21-7; Kazeem Decl. ¶ 5, ECF No. 21-8. Adeniyi was serving as the Control Officer for the D-Building at the time. Adeniyi Decl. ¶ 5, ECF No. 21-9; ECF No. 4 at 7.[7]

         Plaintiffs kicked their cell door open and were ordered to move back into the cell. Idowu Decl. ¶ 7, ECF No. 21-6; Tarkang Decl. ¶ 6; Boboe Decl. ¶ 6; Kazeem Decl. ¶¶ 6-7; IID Report 4. Idowu instructed Adeniyi by radio to secure the door. Idowu Decl. ¶¶ 7-8; Adeniyi Decl. ¶ 5; Kazeem Decl. ¶7. Cumbo refused multiple orders to step back into the cell. IID Report 4; Idowu Decl. ¶ 8, Kazeem Decl. ¶ 7. Cumbo lunged toward Idowu and started punching him and correctional staff. Idowu Decl. ¶ 9; Tarkang Decl. 3; Boboe Decl. ¶ 7; Boboe Decl. 3; Kazeem Decl. ¶ 8; IID Report 7, 8; DVD, IID Case No: 17-35-01916, at 21:00:29, ECF No. 21-11. Phillips also briefly exited the cell. DVD at 21:00:31.[8]

         Idowu sprayed his “fogger”[9] to defend himself and correctional staff and in an attempt to gain Cumbo's and Phillips's compliance. Idowu Decl. ¶ 9. Once Plaintiffs stopped fighting and returned to the cell, the door was secured, and the officers left. Idowu Decl. ¶ 10; DVD at 20:59:48-21:42:00. The entire incident lasted under two minutes.

         Less than three minutes after the door was closed, Plaintiffs opened the slot of the cell door and started throwing things onto the tier floor. DVD at 21:03:50-21:10:15. Twenty-eight minutes after the cell door was secured and eighteen minutes after Plaintiffs stopped throwing items onto the tier floor, correctional officers removed Plaintiffs from cell D-C-323 and handcuffed them for escort to the medical unit for evaluation. DVD at 21:28:50- 21:33:30.

         Officers Oyebode Komolafe and Nnamdi Dike escorted Plaintiffs to the medical unit. DVD at 21:33:30-21:34:50. Plaintiffs waived medical evaluation for pepper spray exposure and each signed a release of responsibility form. Phillips Med. Recs. 2, ECF No. 21-12; Cumbo Med. Recs. 2, ECF No. 21-13.[10] Plaintiffs then were placed in cell D-C-317, Prison Recs., ECF No. 21-3, at 13, which has a sink and access to water, Idowu Decl. ¶ 13, ECF No. 32-6.

         Idowu, Boboe, Tarkang, Kazeem and Saibu ended their shifts at 11:00 p.m. on September 23, 2017 and clocked out. They did not escort Plaintiffs to or from the medical unit, nor were they involved in Plaintiffs' medical care after the incident. Tarkang Decl. ¶¶ 8-9; Idowu Decl. ¶¶ 11, 12; Boboe Decl. ¶¶ 9-10; ...

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