United States District Court, D. Maryland
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.
Cortney Bryant-El is an inmate at North Branch Correctional
Institution (NBCI) in Cumberland, Maryland. He filed this
lawsuit pursuant to 42 U.S.C §1983, alleging that
defendants violated his rights under the First, Eighth and
Fourteenth Amendments. Pending is a Motion to Dismiss, or in
the Alternative, Motion for Summary Judgment filed by former
Commissioner of Correction Dayena Corcoran, Lieutenant Walter
Iser, Sergeant William Thomas, CO. II Brian Fann, CO. II
Bobby J. Ziler, CO. II Douglas E. Frazee, CO. II David J.
Donaldson, Sr. CO. II David C. Robey, and CO. II Charles L.
(collectively, the "State Defendants") ECF
Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), plaintiff was notified that he may file an
opposition with exhibits and affidavits and of the
consequences of failing to do so. ECF 25. Plaintiff filed an
opposition with exhibits. ECF 31. Also pending are plaintiffs
Motion to Appoint Counsel, which will be granted, and Motion
to Present Additional Evidence, which will be denied. ECF 35,
reviewing the parties' submissions, the court concludes a
hearing is unnecessary at this time. See Local R.
105.6 (D. Md. 2018). For reasons to follow, the State
Defendants' Motion (ECF 24), treated as a Motion for
Summary Judgment, will be granted in part and denied in part.
alleges in his unverified complaint that he was subjected to
excessive force, unconstitutional conditions of confinement,
and retaliation during and after a January 26, 2017 use of
force incident at Western Correctional Institution (WCI). ECF
1. As relief, he is seeking monetary damages and injunctive
relief, including an investigation into medical care, and a
transfer to a facility away from western Maryland. ECF 1 at
pp. 7-10, 22-23, 25-26.
filed with his complaint the declaration of another inmate,
Felix Fitzgerald. ECF 1-1. Plaintiff alleges that on January 26,
2017, he and Fitzgerald saw Officer Barb remove chewing
tobacco from his mouth and throw it into a trash can.
Fitzgerald removed the discarded tobacco from the trash to
use as evidence that WCI officers routinely violate the
prohibition against using tobacco products in state
buildings. Plaintiff and Fitzgerald decided to submit an
Administrative Remedy Procedure request ("ARP")
about the violation. According to plaintiff and Fitzgerald,
Officer Ziler saw Fitzgerald take the discarded tobacco from
the trash can. ECF 1 at pp. 2, 4, Fitzgerald Decl. ECF 1-1 at
that day in the recreation room, plaintiff showed a draft of
the ARP and the chewing tobacco to other inmates and then
gave the tobacco to Fitzgerald to hold. ECF 1 at p. 4;
Fitzgerald Decl. ECF 1-1 at p. 1. At approximately 1:15 p.m.,
plaintiff saw Officers Ziler, Barb, Frazee, Donaldson, and
Robey look into the recreation room, enter the wing, and
proceed to the top tier of the wing. Ziler and Robey entered
the recreation room and asked the inmates if they were
holding "some kind of meeting." ECF 1 at p. 4;
Fitzgerald Decl. ECF 1-1 at pp. 1-2. Plaintiff asserts Robey
was pointing a can of pepper spray directly at him while
Donald pulled the trash bag from the can located in the
recreation room. Ziler approached plaintiff, stating
"Come with me Bryant. I want to talk to you." ECF 1
at p. 5. When plaintiff asked why, Ziler instructed him to
turn around for handcuffing. Plaintiff alleges that after he
complied, Ziler stated "We're going to light you
up." Id; Fitzgerald Decl. ECF 1-1 at p. 2.
Plaintiff states this expression alludes to the burning
sensation caused by pepper spray and indicated the
officers', intent to use it. Plaintiff asserts that Robey
moved closer to him while still pointing the can of pepper
spray. Plaintiff asked Officer Donaldson "What's
this about; me talking about an ARP?" Donaldson
answered, "Just go with him and have a quick
conversation." ECF 1 at p. 5.
followed Ziler into the recreation room. Ziler said
"This is what I want, the tobacco that I saw you grab
out of the trash can." Id. Plaintiff alleges
that when he denied taking the tobacco, Ziler lunged at him
with his right hand outstretched as if trying to strike him.
Plaintiff moved to avoid getting hit and fell on to the wall.
Robey and two other officers then sprayed "copious
amounts of the chemical agent" on his face and body.
declaration supports plaintiff s description of the incident.
Fitzgerald states he saw Ziler "suddenly strike out at
Bryant-El with a jab motion" and Bryant-El
"appeared to fall away to avoid being hit."
Fitzgerald Decl. ECF 1-1 at p. 2 ¶ 12. Fitzgerald
recalls that he saw "Bryant being continuously sprayed
with the chemical canisters of 3 correctional officers even
though I never saw him attack or even try to hit
anyone." Fitzgerald Decl. ECF 1-1 at p. 2 ¶ 13.
alleges that due to the effects of the pepper spray and his
chronic asthma, he fled into the recreation room to escape
"the inundation of myself from the chemical
compound." ECF 1 at p. 5. In his haste to get to a
window, plaintiff asserts that he bumped into someone,
possibly a correctional officer, but denies he physically
harmed, struck, injured or assaulted anyone. Plaintiff
asserts an inmate guided him to a window, while another
inmate poured water over his head to alleviate the effects of
the pepper spray. Id. at pp. 5-6.
Ziler, Barb, Robey, Donaldson, and Frazee dispute plaintiffs
account of the use of force incident in their declarations.
Barb and Ziler state that on January 26, 2017, they responded
to the recreation hall to investigate a large group of
inmates gathered inside the top tier recreation hall. In
order to speak to plaintiff in a safer environment for staff,
they escorted him away from the recreation area. Before
exiting the recreation area, plaintiff pulled away and began
to assault Officer Ziler with closed fist punches and threw
Ziler past Barb on the tier floor. Ziler landed on his
shoulder. Barb used his radio to call a staff alert that an
assault on staff was in progress. Donaldson and Frazee
approached plaintiff to halt his assault on Ziler, and
plaintiff began to assault them. Plaintiff struck Donaldson
in the head and Frazee on his face with closed fisted
punches. Barb states he then administered a one or two second
burst of pepper spray in an attempt to end the assault, not
to retaliate against plaintiff for filing an ARP, but to stop
further assaults on staff. Decl. of Charles Barb, ECF 24-9;
Decl. of Bobby Ziler, ECF 24-10; Decl. of David Donaldson,
ECF 24-11; Decl. of Douglas Frazee, ECF 24-12; Decl. of David
Robey, ECF 24-13.
states that as he left the recreation hall, Fitzgerald struck
him in the back of the head. Robey deployed a one second
burst of pepper spray to prevent further escalation of the
assault. ECF 24-13. Robey denies he used the pepper spray to
retaliate against plaintiff for attempting to file an ARP.
and Frazee required medical evaluation outside the facility
following the incident. ECF 24-32 at p. 12. Ziler states he
has been unable to resume his duties as a WCI correctional
officer due to the injuries he received during the assault.
alleges that he did not receive a decontamination shower for
pepper spray exposure and the "harm" lasted for
months. ECF 1 at pp. 7, 21-22. Notably, he does not claim he
actually requested a decontamination shower, but rather his
need for a shower was obvious and is required by applicable
directives. ECF 31 at p. 14. He alleges the pepper spray
aggravated his asthma and caused lesions on his scalp as well
as lingering skin pain. He asserts that he also continues to
suffer mental and emotional anguish about the incident. ECF 1
at pp. 7, 12.
contends the use of force was "without penological
justification" and exceeded "any reasonable need as
such may sometimes exist in a prison setting."
Id. at p. 6. Plaintiff claims Ziler, Barb, Frazee,
Donaldson, and Robey subjected him to excessive force in
violation of the Eighth Amendment and Maryland Law. ECF 1 at
p. 6. Further, he claims Ziler, Barb, Frazee, Donaldson, and
Robey "worked together" to conspire and retaliate
against him for attempting to file an ARP about employee use
of tobacco in state buildings. Id. at p. 7.
Plaintiff also claims Ziler, Barb, Frazee, Donaldson, and
Robey violated his right under the First Amendment to
petition for redress through the prison ARP process by
singling him out after observing him with an ARP
form. Id. at p. 10. He is suing Ziler,
Barb, Frazee, Donaldson, and Robey in their official and
individual capacities for punitive and compensatory damages.
Id. at pp. 7-10.
Internal Investigation Division (IID) was notified of the
incident. ECF 24-32 at p. 12. The IID case (IID No.
17-35-00172) was assigned to Det. Sergeant Corey McKenzie,
and later reassigned to Det. Sergeant Likin for
investigation. ECF 24-32 at p. 12. In the institutional
reports Chief of Security Bradley Butler determined the
incident was a spontaneous response by officers with less
than lethal use of force. Butler and Warden Graham concluded
correctional staff had acted in accordance with the
Department of Public Safety and Correctional Services (DPSCS)
Use of Force (UOF Manuel), but staff were advised to evaluate
their surroundings and gather adequate staff to control a
situation prior to entry. ECF 24-5 at pp. 3-4. Plaintiff and
Fitzgerald refused to give statements after the
Likin, the IID investigator, reviewed institutional reports
and the surveillance video, noting the incident was only
partially captured on the surveillance video due to the
position of the cameras. He noted that the video shows Ziler
falling to the ground and staff coming to assist him, but not
the full incident. ECF 24-32 at p. 12. Likin made an
application for a statement of charges against plaintiff, and
the Allegany County District Court Commissioner issued a
criminal summons charging him with three counts of second
degree assault on a Department of Correction employee. ECF
24-21 at p. 13. Likin concluded no further investigation was
needed and requested the case be closed. ECF 24-32 at 14; ECF
24-32 at pp. 124-27 (Dist. Ct for Allegany County, Crim Case
D-121-CR-17-000266); see also supra n. 4.
was also served with a Notice of Inmate Rule Violation for
violating Rules 100 (engaging in a disruptive act) and 101
(assault or battery on staff). ECF 24-5 at p.
Plaintiff told the hearing officer that on January 26, 2017,
he noticed Barb spitting chewing tobacco into a cup and
placing it in the trash can. Barb then walked into the
"institutional bubble." ECF 24-29 at p. 4.
Fitzgerald went to the trash can to get the cup with the
tobacco. Ziler tapped on the window and asked what they were
doing. Plaintiff responded they were not doing anything. At
12:30, plaintiff went to the recreation area, and started
showing other inmates the tobacco and ARP. At about 1:15,
officers came on the tier. Donaldson took out the trash bag
and started to search it. Ziler asked the inmates whether
they were having a meeting and asked plaintiff to step out to
the tier to talk. Plaintiff asked why because he did not do
anything. Then Ziler pulled out a mace can and pointed it at
plaintiff. Plaintiff denied doing anything and returned to
the day room to watch television. Plaintiff said Ziler
followed him, asked him where the tobacco was, and lunged at
him. Plaintiff moved out of the way and fell against a wall.
Then another officer used pepper spray on him and plaintiff
took off his shirt. ECF 24-29 at pp. 4-5.
hearing officer found after reviewing the Notice of
Infraction and supporting documents that plaintiff was guilty
of violating Rules 100 and 101. Plaintiff received 300 days
of segregation confinement and his visitation privileges were
revoked indefinitely. ECF 24-29 at pp. 5-6.
alleges that defendant Officer Fann interfered with his
medical care by not escorting him to the chronic care clinic
on February 21, 2017. ECF 1 at p. 14-15. Plaintiff asserts
that when he asked the officer his name, Fann initially gave
him a false name and commented "Robey is a good buddy of
mine," which plaintiff understood to mean that he was
refusing the escort on Robey's behalf. Id. at p.
15. Plaintiff wanted to see a provider in the chronic care
clinic to explain he needed an asthma inhaler since the one
he had was depleted. Id. at 15. As relief, plaintiff
asks for punitive damages against Fann for violating his
rights under the Eighth Amendment, "Maryland laws and
Departmental regulations." Id. at p. 16.
denies refusing to provide his name or providing a false name
to plaintiff. Fann Aff. ECF 24-25. According to Fann, on
February 21, 2017, plaintiff chose to participate in outdoor
recreation rather than attend his medical appointment.
Id. Fann states he has not been involved in,
interfered with or delayed plaintiffs medical care, nor has
he ever harassed, threatened, conspired or retaliated against
plaintiff and has no knowledge of other staff members doing
so. ECF 24-25.
alleges that when Sgt. Thomas escorted him from WCI to NBCI
on January 26, 2017, Thomas told him that he was being taken
to a "state sponsored hell especially built for guys
like you who like to rabble rouse and fight officers."
ECF 1 at p. 21. Plaintiff claims he was placed in a
"contingency" cell without running water, the
window was locked shut, and the toilet did not work. He was
not provided with toilet paper, a mattress or bed linen. A
plexiglass barrier positioned around the cell door further
prevented the flow of air into the cell and there was no
other means of ventilation. Id. Plaintiff alleges he
had difficulty breathing due to his respiratory condition,
which was aggravated by his exposure to pepper spray, and
lack of air flow. He claims to have "passed out"
twice due to these conditions. Id. at p. 22.
also claims he was denied food on January 26, 2017, and from
"January 26th through January 31st" his food was
thrown on the cell floor. Id. For five days, he had
no soap, toothpaste, toilet paper, wash cloths, deodorant,
running water, or out-of-cell activity. He claims the cell
smelled of human excrement causing him to vomit whenever he
tried to eat.
claims that Officer Marchinke told him sick call procedures
were unavailable to him "per orders of Sgt.
Thomas." Id. Plaintiff is suing Sgt. Thomas for
damages for subjecting him to unconstitutional conditions of
confinement, denying him access to medical care in
contravention of the Eighth Amendment, the Equal Protection
Clause, made applicable by the Fourteenth Amendment, the
Maryland Bill of Rights, and Departmental regulations.
Id. at pp. 22-23.
disputes plaintiffs assertions and denies ever instructing a
correctional officer to prevent or interfere with plaintiffs
access to the sick call process. ECF 24-14. Further, he
denies interfering with or delaying medical care to
plaintiff, and states he has no knowledge of any custody
staff under his supervision doing so. Id. Thomas
states that when he escorted plaintiff from WCI to NBCI, the
escort was uneventful and he was unaware of the reasons for
plaintiffs transfer. Id. Thomas recalls that the
plaintiff did not ask him for a decontamination shower, nor
was he aware that plaintiff requested one from another
correctional officer. Thomas explains plaintiff was placed on
Staff Alert Status upon arrival at NBCI. ECF 24-14; ECF 24-18
at p. 1; ECF 24-19. Inmates who pose a substantial threat to
institutional security or staff may be temporarily placed in
this status no longer than it takes to modify the behavior.
ECF 24-14. Thomas asserts NBCI does not designate or use a
specific area in the institution as a "contingency
cell." ECF 24-14 ¶ 11; ECF 24-24.
explains that Staff Alert is a status, not a housing
location. During the time plaintiff was on staff alert, he
was placed in Housing Unit 1, Cell l-C-22. ECF 24-14. Cells
used for Staff Alert status inmates may have a plastic
security barrier placed in front of the cell to limit an
inmate's ability to throw feces and urine at corrections
officers. Further, and contrary to plaintiffs assertions, the
ventilation system in the housing units at NBCI cannot be
shut off as to individual cells and the window in his cell
was not locked. Id. Thomas states water to
individual cells may be temporarily shut off when the
occupant has a history of or makes threats of clogging the
drainage system with the intent of flooding the cell or tier.
Temporarily shutting off the water to an inmate's cell is
not done to retaliate or punish the inmate.
housing inmates on staff alert status may use a security pass
through, a device attached to the cell which allows staff to
safely pass items through the feed slot and avoid physical
contact with the inmate. Bagged meals and medications are
secured in the security pass through for the inmate. Staff
Alert security procedures require the inmate to move to the
back of the cell, face the back wall, and kneel while the
feed-up slot is opened. A refusal to follow these procedures
is considered a refusal of medication or meals by the inmate.
Toiletries and clean clothes are provided to inmates on Staff
Alert status as needed. ECF 24-14 ¶ 11. The record
indicates that plaintiff refused to follow these procedures
and therefore declined his meals. ECF 24-14 ¶12; ECF
24-20 at pp. 4-5. On January 31, 2017, plaintiff was removed
from Staff Alert Status, after he was observed to be
following staff directions and procedures. ECF 24-19; ECF
24-20 at p. 4; ECF 24-21 at p. 1.
13, 2017, plaintiff met with Lt. Iser after family members
called the Warden with concerns about his welfare. ECF 1 at
p. 23. According to Plaintiff, Iser said, "Off the
record, yeah you should have been provided a decontamination
shower, according to official rules, and yeah that cell is
pretty rough but at NBCI there's a policy on paper and
then there's the real life policy." Id. at
pp. 24-25. Iser continued "We have a policy of making
life a living hell for guys like you who go against