United States District Court, D. Maryland
THEODORE D. CHUANG JUDGE.
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.
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
aspx?fileID=1474. At the time, Germain had been refusing to
be housed with a cellmate.
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
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.
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.
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.
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
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.
Use of Force Investigation
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.
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.
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, ...