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Germain v. Gilpin

United States District Court, D. Maryland

March 29, 2019

JEAN GERMAIN, Plaintiff,



         Plaintiff Jean Germain, an inmate at the North Branch Correctional Institution ("NBCI") in Cumberland, Maryland, has filed a Complaint under 42 U.S.C. § 1983 against Defendants Cody Gilpin, Keith Markle, Nicholas Soltas, Walter Iser, Jr., and Bradley Wilt, all of whom are correctional officers at NBCI, alleging excessive force and the failure to provide medical care in violation of the Eighth Amendment to the United States Constitution. Pending before the Court is a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment ("Motion for Summary Judgment" or "Motion") filed by all Defendants except Wilt, who has yet to be served. Also pending are Germain's Motion for Appointment of Counsel and Motion for a Hearing. Upon consideration of the submitted materials, the Court finds that no hearing is necessary to resolve the Motion, so the Motion for a Hearing will be denied. See D. Md. Local R. 105.6. For the reasons set forth below, the Motion for Summary Judgment will be denied, and Germain's Motion for Appointment Counsel will be granted.


         I. Germain's Allegations

         In his Verified Complaint, Germain asserts that on March 4, 205,, at approximately 9:30 a.m., Correctional Officer Nicholas Soltas attempted to serve Germain what is known as a "segregation loaf," an unappetizing form of nutrition given to prisoners in segregation in place of a standard lunch tray in order to incentivize them to compliance. Compl. ¶ 1, ECF NO.1. A segregation loaf, otherwise known as a "special management meal" is used "to provide a nutritionally balanced meal for disruptive inmates who are assigned to disciplinary segregation and who have failed to modify their behavior through other means." Inmate Grievance Office Decision 8, ECF No. 15-1 at 56; see also Md. Div. Corr., Exec. Directive No. OPS.l 10.0018, Special Meal Management Service (2016), aspx?fileID=1474. At the time, Germain had been refusing to be housed with a cellmate.

         Germain refused to accept the segregation loaf "in protest," demanded to speak with the Officer-in-Charge of the housing unit, and placed his right hand through the feed slot in his cell door. Inmate Grievance Office Decision Findings of Fact ¶ 2, ECF No. 15-1 at 52. When Soltas grabbed Germain's hand and attempted to handcuff him, Germain resisted. As Soltas and Germain struggled, Correctional Officer Keith Markle arrived and without warning dispensed pepper spray through the feed slot onto Germain's face and upper body. According to Germain, the pepper spray blinded him, caused him to gag, and caused burning sensations on his face and upper body. Germain then removed his hand from the feed slot, and the officers closed it.

         Soltas then reopened the slot "at least 5 times within 10 seconds" so both Soltas and Markle could again spray Germain with pepper spray. Compl. ¶ 8. At one point, Germain "ran to the slot to give up" and to block the pepper spray from coming through the feed slot, but Soltas pushed him out of the way so more pepper spray could be deployed. Id. ¶ 9. Germain asserts that an entire large canister and another smaller one were sprayed directly onto him.

         According to Germain, he stumbled toward the sink in his cell to wash the pepper spray from his eyes, but Sergeant Walter Iser, Jr. had arrived and ordered the water turned off in his cell. Lt. Bradley Wilt then arrived and gave an order for Germainss cell door to be opened.

         Germain asserts that after the door was opened, the officers attacked him and "took him to the ground." Id. ¶ 14. Once on the floor, Germain was handcuffed. Although Germain was not resisting, Wilt began twisting his right foot and Soltas used two fingers to choke him.

         Germain was then escorted to the medical unit where he was seen by a nurse, William Bilak, for the pepper spray exposure, but Bilak identified no problem requiring treatment. After leaving the medical unit, Germain was escorted to the property room for a strip search. According to Germain, Soltas ripped off his clothes, including his shorts and underwear, and either Soltas or another correctional officer deployed pepper spray from a small canister, aiming it at his "anus and sacs." Id. ¶ 20. The officers then put a smock on Germain, escorted him to an isolation cell with no running water, and denied him medical attention or a decontamination shower. Germain asserts that Sgt. Puffenbarge, who is not named as a defendant, denied him an opportunity to provide a written statement about the incident.

         Following the March 4, 2015 incident, Germain initiated a hunger strike. As a result, Germain was examined by medical personnel on March 5 and March 6. During those visits, Germain did not assert continuing pain or symptoms from the pepper spray, nor did he report that he had been pepper sprayed in his anal area. On March 7, 2015, however, during a visit with Dr. Colin Ottey, Germain reported that he had been "sexually assaulted" by correctional officers who sprayed pepper spray in his rectal area, and that he had suffered rectal bleeding continuing until that morning. Med. Records 8, Defs.' Mot. Summ. J. Ex. 4, ECF NO.10-6. During an examination that day, Dr. Ottey found no active rectal bleeding and no obvious signs of trauma to Germain's rectal area. Germain was seen again by medical personnel on March 8, 9, and 10 because of his hunger strike but did not report issues relating to pepper spray exposure or the alleged assault. According to records relating to another medical visit on March 11, 2015, one week after the alleged assault, Dr. Mahboob Ashraf noted that Germain was not in distress and "has no complain[ts] except [a] minor bruise [o]n his left index finger." Id. at 21, 23-24.

         II. Investigations

         A. Use of Force Investigation

         On March 4, 2015, pursuant to Division of Correction Directive 20-3, Lt. Thomas Sawyers of NBCI was assigned to investigate the correctional officers' use offorce that day and obtained substantially identical written statements from Soltas, Markle, Iser, Wilt, and Correctional Officer James Vinci. According to Soltas, the encounter began because Germain had voluntarlly agreed to move to another cell, and Soltas was attempting to handcuff Germain through the feed slot in advance of that move. When Germain grabbed Soltas's arm with his left hand through the feed slot, Markle came to the cell door to assist Soltas, ordered Germain to let go of Soltas's arm, and deployed pepper spray into the cell. Although Soltas was able to break free, when Germain grabbed his arm again, Soltas deployed pepper spray into the feed slot.

         After Germain released his grip and retreated from the feed slot, Soltas and Markle ordered Germain to come to the cell door so he could be handcuffed and taken to the medical unit for treatment for pepper spray exposure. Germain refused to comply and instead covered the window of his cell door. The officers then summoned Lt. Wilt and Sgt. Iser, who attempted to convince Germain to come to the door and allow himself to be handcuffed. When Germain refused, Lt. Wilt ordered the cell door to be opened in order to check on his well-being. According to the officers, Germain then lunged at Markle with a closed fist, Markle blocked the punch and, to subdue Germain, struck him several times on his head and upper torso with a closed fist. The officers then took Germain to the floor with Soltas controlling his head and torso, Wilt controlling his legs, and Markle placing him in handcuffs. Once restrained, Germain was escorted to the medical unit where he was evaluated by Bilak. Germain was then strip-searched and photographed. According to Markle, Germain was offered a decontamination shower and the opportunity to provide a statement, but he refused.

         Based on these accounts, Sawyers concluded that same day, on March 4, 2015, that the use offorce was "appropriate and consistent with all applicable policies" and the Use of Force Manual. DPSCS Investigator's Summary, Defs.' Mot. Summ. J. Ex. 1 at 9, ECF No. 10-3. Germain was served with a Notice of Infraction and placed on administrative segregation status. With their Motion, ...

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