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Brice v. Dosumu

United States District Court, D. Maryland

February 14, 2019

TIMOTHY BRICE, Plaintiff,
v.
CORRECTIONAL OFFICER DOSUMU, Defendant.

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE.

         Plaintiff Timothy Brice, who is self-represented, filed this civil rights action against defendant Adeotun Dosumu, [1] a correctional officer at Jessup Correctional Institution (“JCI”). ECF 1. Plaintiff alleges that Dosumu slapped his face in a deliberate attempt to maliciously cause him harm. Id. In response, defendant filed a motion to dismiss or for summary judgment (ECF 14), supported by a memorandum (ECF 14-1) (collectively, the “Motion”) and exhibits. He denies that he ever intentionally touched plaintiff on the date in question and has provided medical records to establish that plaintiff's alleged injury was due to a tooth that needed to be extracted.

         Plaintiff opposes the motion. ECF 16. But, he does not provide an affidavit in support of his opposition.[2] Rather, plaintiff states that there is video surveillance footage that proves his claim is valid. Id. Additionally, plaintiff moves for appointment of counsel. ECF 13.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, defendant's Motion, construed as one for summary judgment, shall be granted and plaintiff's motion for appointment of counsel shall be denied.

         I. Background

         A.

         Plaintiff is an inmate confined at JCI. At all times relevant to the Complaint, he was assigned to “solitary.” ECF 1 at 2. Brice claims that on November 1, 2017, at approximately 4:30 p.m., he called defendant over to his cell door so that he could hand defendant a sick call slip. After giving defendant the sick call slip, plaintiff claims defendant told him “next time hurry up, ” and then defendant reached through the “feed up slot” in plaintiff's cell door and slapped him across the face. Id. at 3; see ECF 14-2 at 2, 5.

         Plaintiff asked defendant why he slapped him, and he claims that defendant simply smiled and said that plaintiff should “do something about [it].” Id. Plaintiff then asked to be taken to the medical unit to receive medical attention for his face, but defendant did not escort him there. Id. Rather, plaintiff claims that defendant walked back and forth in front of his cell and again reached through the slot in the cell door to slap plaintiff. Id.

         Brice alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated when defendant inflicted injuries to his face and denied him medical care for the injury. He states that his “cell buddy” witnessed the incident, that the video surveillance recording from the tier will verify his claims, and he seeks monetary damages as relief. Id.

         B.

         Defendant has submitted verified business records and a Declaration under oath in support of the following facts. See ECF 14-2; ECF 14-3; ECF 14-4.

         On October 23, 2017, plaintiff received a Notice of Inmate Rule Violation charging him with violation of rules 101 (assault or battery on staff); 104 (use of intimidating, coercive, or threatening language); 312 (interference with the performance of staff duties); 400 (disobeying an order); and 405 (demonstration of disrespect or use of vulgar language). ECF 14-2 at 9. Officer Latasha Barrett is the officer who charged plaintiff with violating those rules. Id. Following a disciplinary adjustment hearing, plaintiff was found guilty of violating rules 100, 400, and 405, and was sentenced to 90 days of segregation. Id. at 11. Thus, at the time of the incident involving defendant (November 1, 2017), plaintiff was confined to disciplinary segregation.

         On November 1, 2017, defendant was assigned to the D-Building, C Tier at JCI. ECF 14-3 at 1. At approximately 4:30 p.m., defendant was escorting the nurse, who was on the tier to distribute medication. Id. During the escort, plaintiff called defendant to his cell (number 323) and defendant told him to wait while he escorted the nurse. Id. at 2. When defendant arrived at plaintiff's cell, he observed plaintiff with a cup of “unknown liquid” in his hand and surmised that plaintiff intended to assault him. Id. In order to thwart that attempt, defendant put his hand through the feed slot on the cell door to block plaintiff from throwing the liquid. Id. He denies that he intentionally slapped plaintiff when doing so. Id.[3]

         Defendant states he continued to escort the nurse through the rest of the tier, believing the incident did not result in any injury, either to himself or to plaintiff. Id. Five days later, defendant was made aware that plaintiff was claiming in an administrative remedy procedure complaint (“ARP”) that he had been injured during the incident of November 1, 2017. Id.

         On November 6, 2017, when plaintiff reported that he had been injured by defendant, a Serious Incident Report was generated and he was seen by Carlin Lebreton, RN, for evaluation of his claimed injury. ECF 14-2 at 2; 14-3 at 2. Plaintiff was interviewed by Lt. Samson Balogun and escorted to the medical unit following the interview. ECF 14-2 at 2. Plaintiff reported to Lebreton that defendant had slapped the left side of his face twice, causing a sharp pain in his left jaw. ECF 14-3 at 2. Upon examination, Lebreton found no sign of injury inside or outside of plaintiff's jaw. Id. Specifically, Lebreton found no swelling, no discoloration of skin, and no ...


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