United States District Court, D. Maryland
DAYTRON L. MOBLEY, SR, #346455, Plaintiff
WARREN MALLOW, APRIL CARR, Defendants
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.
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). 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'
response, Defendants Mallow and Carr filed a Motion to
Dismiss or, in the Alternative, Motion for Summary
Judgment'(ECF No. 15) which is unopposed. 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
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
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.).
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).
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
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.
"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).
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.
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
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.