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Mobley v. Mallow

United States District Court, D. Maryland

November 21, 2019

DAYTRON L. MOBLEY, SR, #346455, Plaintiff
v.
WARREN MALLOW, APRIL CARR, Defendants

          MEMORANDUM OPINION

          CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.

         Daytron L. Mobley, Sr., a Maryland prisoner incarcerated at North Branch Correctional Institution ("NBCI"), has filed a Complaint alleging that on September 15, 2018, while held in a "strip cage," he was assaulted and "framed" by Defendant Warren Mallow, who stated he was going to plant a weapon on Mobley and say that Mobley tried to spit on him to justify the use of pepper spray. (ECF No. 1, p. 3).[1] Mobley alleges Defendant Carr was present during the entire incident and wrote a report to support Mallow's false story, and that he lost hearing in one ear due to Mallow's "excessive bursts of mace." (Id). He seeks unspecified damages, transfer from NBCI, and termination of the Defendants' employment.[2] (Id).

         In response, Defendants Mallow and Carr filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment'(ECF No. 15) which is unopposed.[3] No. hearing is necessary to determine the outcome of this case. See Local Rule 105.6 (D. Md. 2018). For reasons stated below, Defendants' dispositive motion will be denied without prejudice.

         Statement of Facts

         The parties present vastly different versions of material facts. Mobley states that while he was in the strip cage on September 15, 2018, Officer Mallow pepper sprayed him, then stated he would "plant a weapon on you and say you tried to spit on me." (ECF No. 1, p. 3). Mobley states that Sgt. Carr was present "the whole time" and "wrote a report to indulge" Mallow's version of events. (Id.; see also ECF No. 10, p. 1, ¶ 3). He alleges the "excessive bursts" of spray constituted a violation of his Eighth Amendment rights (ECF No. 1, p. 3) and that Carr denied him a shower to wash off the pepper spray residue. (ECF No. 10, p. 1, ¶ 5). He states that he was "frame[d]" on charges of possessing a weapon and attempting to assault (by spitting on) Mallow and Carr. (Id. ¶¶ 4, 6). He provides no information as to why Mallow and Carr would have conspired to "frame" him for possession of the weapon.[4]

         Mobley further contends that Division of Correction Directives mandate that force should be used by staff only to defend against attack, to stop prisoner fights, or to control a mentally ill individual, and that in other circumstances, policy requires officers to call on organized Tactical Units to gain compliance. (ECF No. 10-1, p. 1). He provides several scenarios describing non- force-driven resolution in situations where there is no present danger to staff, and states that because he was locked in a cage, "hypothetically speaking" if he did "attempt to spit at, .. Mallow" the officer would not have been in danger. (Id. p. 2). These scenarios are offered to show that in his situation, the use of pepper spray was unwarranted and presumably retaliatory. (Id.).

         In their dispositive motion, Defendants contend that their conduct was justified. They rely in part on Mallow's Notice of Inmate Rule violation ("NOIRV") report, which includes his sworn statement to prison officials written under penalty of perjury. In that statement, Mallow notes he was assigned to transfer Mobley, who had been housed alone, to another cell. Although the reason behind Mobley's transfer from his cell to the strip cage is not provided, it appears that while Mobley was in the cage, Mallow was taking inventory of Mobley's personal property, which had been taken to the property room. (ECF No. 15-2, pp. 4, 8, 10). During inventory, Mallow found a six-inch-long metal rod sharpened to a point with a cardboard handle tied with cloth, concealed in a rolled-up magazine. (Id., pp. 8, 10, 20-22). The weapon was confiscated, logged into the property area with a chain of custody form, and photographed. Mallow then told Mobley he would receive a notice of rule violation for possessing a weapon. (Id., pp. 8, 10).

         Carr, the officer in charge, arrived and ordered Mobley to turn around to be handcuffed, and Mobley refused. (ECF No. 15-4; ECF No. 15-2, p. 10). Mallow asked whether Mobley would allow Mallow to cuff him, and Mobley appeared to comply, then called Mallow a "bitch" and a "pig" before spitting at him. (ECF No. 15-2, p. 10). The property cage mesh prevented spit from hitting Mallow, who then ordered Mobley to stop and turn around to be cuffed. Mobley cursed at Mallow, then placed his face in the slot opening and cleared his throat as if to spit again; Mallow jumped back and applied one burst of pepper spray at Mobley's face. (Id.).

         Mobley refused to provide a written or verbal statement concerning the incident. (Id., p. 13). Color photographs of Mobley's face and hands were taken for inclusion in the Use of Force report. (Id., pp. 16-18). No. video footage exists regarding what occurred in the strip cage, as the strip cage area has no surveillance camera, in accord with prison policy. (ECF 15-4, Decl. of April Carr, ¶¶ 4). It appears, however, that a ViconNet Video Surveillance recording was reviewed in connection with the incident. (ECF No. 15-2, p. 4, Administrative Data Checklist). Defendants do not explain why this recording has not been submitted to the court.

         A "Use of Force" investigation conducted by NBCI staff found that the level of force used was appropriate against Mobley, a Maximum Security I disciplinary segregation prisoner, under the circumstances presented in Mallow's incident report. (Id., Summary/Recommendations). Additionally, Mobley was charged with violating five prison rules: Rule 100 (engaging in a disruptive act), Rule 101 (assault or battery on staff), Rule 105 (possession, use, or manufacture of a weapon), Rule 117 (arranging, committing, performing or engaging in a sexual act, with regard to a statement to Nurse Holly Pierce, whom he saw after the incident) and Rule 316 (disobeying an order). (Id., pp. 10-11). At a hearing held on September 18, 2018, Mobley pleaded guilty to Rule 316 and pleaded not guilty on the other charges. (Id., pp. 24-25). He testified that after he refused an order to get dressed in the strip cage and refused several orders to "cuff up" he was cursed with a racial slur, maced, told he would be accused of spitting on Carr, and that a weapon would be planted on him. (Id., p. 25). The Hearing Officer found Mobley not guilty of Rule 100 (engaging in a disruptive act) and guilty of the remaining four charges and sentenced to 180 days of segregation. (Id., p. 26).

         The medical progression of care provided after the incident is uncontroverted. Nurse Practitioner Holly Pierce's offer of a decontamination shower or medical treatment was met with a vulgarity. (Id., p. 14; ECF No. 15-3, Decl. of Jamie Judy, Medical Records Custodian, and medical record of September 15, 2018, pp. 2-3). Medical staff did not observe Mobley to be in distress and noted that he had refused medical treatment. (ECF No. 15-3, p. 2). It appears a medical examination was refused again on September 18, 2018, although the release- of responsibility form was not signed by Mobley or Pierce. (Id., p. 4). Five days later, on September 20, 2018, Mobley submitted a sick call slip complaining of hearing loss and severe pain in the right ear. (Id., p. 5). On September 23, 2018, medical staff assessed him for hearing loss and scheduled him to return to the clinic in six days for an ear irrigation. (Id., pp. 6-7). On September 28, 2018, Mobley's ears were flushed and large amounts of tissue paper were removed. (Id., p. 8). The medical record suggests that the ear problem was caused by tissue paper jammed into Mobley's ear canals; Mobley has not sought ongoing treatment for hearing loss or other issues with his ears, and nothing suggests pepper spray exposure caused or exacerbated Mobley's ear problems.

         Standard of Review

         In addressing the pending motion, the court considers documents beyond those intrinsic to Mobley's Complaint. Consequently, Defendants' Motion is treated as one for summary judgment. Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment shall be granted if the movant demonstrates that no genuine issue of disputed material fact exists, rendering the movant entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). "A party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must view the evidence in the light most favorable to the non-movant and draw all inferences in his favor without weighing the evidence or assessing witness credibility. See Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). At the same time, the court must "prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526.

         Defendants have attached to their motion records declarations, a personal declaration from Defendant Carr, and verified correctional records. Examination of the facts of this case, however, is hindered by several omissions in Defendants' pleadings. First, Defendant Mallow provides no independent affidavit or declaration beyond the departmental report he provided to prison officials immediately after the incident. Further, ...


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