Bryant-EL v. Corcoran

          MEMORANDUM OPINION

          CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.

         Plaintiff 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. Barb^[1] (collectively, the "State Defendants") ECF 25.^[2] 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.^[3] 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, 26.

         After 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.

         BACKGROUND

         Plaintiff 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.

         Plaintiff filed with his complaint the declaration of another inmate, Felix Fitzgerald. ECF 1-1.^[4] 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 p. 1.

         Later 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.

         Plaintiff 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. Id.

         Fitzgerald's 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.

         Plaintiff 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.

         Defendants 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.

         Robey 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. Id.

         Ziler 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. ECF 24-10.

         Plaintiff 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.^[5] 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.

         Plaintiff 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.^[6] 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.

         The 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 incident.^[7]

         Detective 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.

         Plaintiff 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. 22.^[8] 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.

         The 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.

         Plaintiff 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.

         Fann 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Thomas 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.

         Thomas 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.^[9]

         Cells 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.

         On July 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 ...