United States District Court, D. Maryland
DAVON PHILLIPS, ALTON W. CUMBO, Plaintiffs
SGT. OLUWEMIMO SAIBU, CO II ORIYOMI BOBOE, COII MILTON TARKANG, COII ABEEB KAZEEM, SGT. ADEMOLA IDOWU, COII ADEMOLA ADENIYI, Defendants
W. GRIMM UNITED STATES DISTRICT JUDGE
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,
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.
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 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
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,  but they all ignored their
needs and pleas.” Cumbo Supp. 5.
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. Cumbo alleged
that Idowu, Tarkang, Kazeem, Boboe, Saibu, and Adeniyi used
excessive force against him during the same September 23,
2017 incident. 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.
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
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.
Tarkang, Boboe, and Kazeem went to Plaintiffs' cell to
investigate. 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.
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
sprayed his “fogger” 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.
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.
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. 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.
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; ...