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Zeller v. Choi

United States District Court, D. Maryland

May 7, 2019

DAVID COURTNEY ZELLER, Plaintiff,
v.
CO II YUN SEONG CHOI, Defendant.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, JUDGE

         Plaintiff David Courtney Zeller, an inmate incarcerated at Western Correctional Institution in Cumberland, Maryland, has filed a Complaint asserting that he was subjected to excessive use of force at the Jessup Correctional Institution ("JCI") in Jessup, Maryland in violation of his constitutional rights. Defendant Yun Seong Choi, a correctional officer at JCI, has filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, to which Zeller has filed a memorandum in opposition. Also pending before the Court is Zeller's Motion for Appointment of Counsel, which will be denied. Having reviewed the Complaint and submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, Choi's Motion for Summary Judgment will be granted.

         BACKGROUND

         Zeller claims that on January 16,2017, while waiting outside the shower, he asked to speak with the tier sergeant about the cleanliness of the showers. Correctional Officer II Choi told him that he would have to wait in his cell while he called a supervisor, to which Zeller replied, "No way, Jose." Comp I. 1-2,ECFNO.1. Choi insisted that Zeller return to his cell, but Zeller did not want to skip his shower, so he told Choi, "We can wait right here while you get a radio." Id. at 2. Zeller, who was wearing handcuffs, then he pulled his right upper arm from Choi's grasp. Zeller alleges that Choi then "threw, slammed me face first down hard onto the hard concrete floor" of the tier. Id. When Choi rolled Zeller over, Zeller swung a plastic bag containing shower items, hitting Choi's face. Zeller claims that at that point, six to eight correctional officers assaulted him with punches and kicks. Zeller was then escorted to the medical unit. He asserts that he was "OK at the time," but several days later he fell down without warning but that "medical has yet to do anything." Id. at 3. Zeller does not specify what relief he seeks.

         By contrast, Choi, in a declaration, asserts that on January 16, 2017, he and Correctional Officer Okoi escorted Zeller, who was housed on a disciplinary segregation tier, to the shower. Zeller was in handcuffs with the handcuffs in front of his body. As they approached the shower, Zeller "aggressively pulled away from us, causing us to lose our grip." Choi Decl. ¶ 7, ECF No. 16-3. Choi took Zeller to the ground to regain control. Zeller struck the right side of Choi's face with a plastic bag and scratched his arm. Another officer arrived to assist and escorted Zeller to the medical area for evaluation. Choi has had no further contact with Zeller.

         On the day of the incident, Zeller received medical treatment for minor lacerations on his arms and pain in his neck. A nurse applied steri-strips to Zeller's lacerations, advised him to use cold compresses on his neck, and offered him Motrin. Choi also received medical care after the incident for an abrasion on his right upper arm and a contusion on his head.

         Choi submitted a written statement for a Use of Force Incident Report and issued Zeller a notice of inmate rule violation. Choi's supervisor concluded that the force used "was in accordance with the Use of Force Manual in order to regain control of [Zeller] who was displaying noncompliance behavior." Use of Force Rep. 1, ECF 16-2 at 5. The Intelligence and Investigative Division ("IID") was notified. On January 30, 2017, a hearing officer found Zeller guilty of engaging in a disruptive act, committing assault or battery on correctional staff, and disobeying an order. The hearing officer sanctioned Zeller by placing him in segregation for 365 days, revoking 715 diminution credits, and suspending his visitation privileges.

         DISCUSSION

         I. Motion for Appointment of Counsel

         Zeller filed a Motion for Appointment of Counsel, without specifying in which of his pending cases he intended to file the Motion. The Motion was docketed in this matter and several other pending cases. Zeller's Motion for Appointment of Counsel will be considered here in the specific context of the present case.

         Zeller seeks appointment of counsel because he has filed multiple cases in this Court and suffers from mental illness, making it difficult for him to effectively manage his litigation. He provides no more specific reason why he is unable to litigate the issues in this case on his own. "The court may request an attorney to represent any person" proceeding in forma pauperis who is "unable to afford counsel." 28 U.S.C. S 1915(e)(1) (2012). In civil actions, the Court appoints counsel only in exceptional circumstance.. Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). In doing so, the Court considers "the type and complexity of the case," whether the plaintiff has a colorable claim, and the plaintiffs ability to prosecute the claim. See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) (citations omitted), abrogated on other grounds by Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989). Exceptional circumstances include a litigant who "is barely able to read or write," id. at 162, or clearly "has a colorable claim but lacks the capacity to present it," Berry v. Gutierrez, 587 F. Supp. 2d 717, 723 (E.D. Va. 2008); see also Altevogt v. Kirwan, No. WDQ-11-106,, 2012 WL 135283, at *2 (D. Md. Jan. 13,2012.. Inherent in this analysis is that one's indigence is insufficient to establish exceptional circumstance..

         To date, Zeller has adequately presented his claims, and his mental illness does not appear to have hindered his capacity to litigate as evidenced by his numerous filings in this case and in this Court. His motions and previous filings demonstrate his ability to present the legal and factual basis of his claims or to secure assistance in doing so. Moreover, Zeller has demonstrated that he understands and is able to communicate with the Court and respond to Orders and Defendants' filings. At the present time, therefore, Zeller's multiple cases and mental health condition do not amount to exceptional circumstances warranting appointment of counsel. The Motion for Appointment of Counsel will be denied.

         II. Motion to Dismiss or, in the Alternative, Motion for Summary Judgment

         In his Motion, Choi seeks dismissal or summary judgment on the grounds that: (1) Zeller failed to exhaust administrative remedies; (2) Choi was entitled to qualified immunity; and (3) Zeller has failed to state a valid Eighth Amendment claim. Because the Court finds that Choi did not ...


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