United States District Court, D. Maryland
L. Hollander United States District Judge.
Gilbert, the self-represented plaintiff, is a Maryland
prisoner incarcerated at Western Correctional Institution
(“WCI”). He filed a civil rights suit (ECF 1), as
amended (ECF 4), and supplemented (ECF 6), against Warden
Richard Graham, Jr. and correctional officers Frederick
Faust, Douglas Frazee, and Tyler Warnick, defendants. They
have moved to dismiss or for summary judgment. ECF 14. The
motion is supported by a memorandum (ECF 14-1) (collectively,
the “Motion”) and several exhibits. Plaintiff was
advised of his right to file a response to the Motion and of
the consequences of failing to do so. ECF 15. Gilbert has not
hearing in this matter is unnecessary. See Local
Rule 105.6 (D. Md. 2018). For the reasons that follow, I
shall construe defendants' Motion as a motion for summary
judgment, and I shall grant it.
Complaint concerns an incident at WCI that occurred on June
11, 2018, involving the use of force by Officers Warnick,
Faust, and Frazee. ECF 1; ECF 4; ECF 6. Gilbert claims the
three officers “used excessive force on [him] by
punching, kicking . . . choking . . . and dragging”
him. ECF 6 at 1. According to Gilbert, he was dragged across
the compound by the officers in an attempt to break his arms.
Id. Gilbert was then placed in a “cage”
where he was “sprayed . . . twice w[ith] pepper spray,
” and kicked in the chest and face while he was
restrained in handcuffs. Id.
explains that he has “chronic bronchitis & the
pepper spray made [him] stop breathing for 3 mins & they
didn't give [him] an inhaler” to assist with
breathing. Id. He adds that the use of the pepper
spray has worsened his chronic bronchitis. Id. In
addition, he alleges that he sustained an injury to his ribs,
as well as a black-eye, a lacerated wrist, and nerve damage
to his right thumb. Id.
seeks eighty million dollars in damages from Graham, and
notes that Graham is named as a defendant “due to the
fact he is the warden of Western Correctional
Institution” and the officers involved “are his
officers.” Id. Gilbert seeks an additional 280
million dollars in damages from Warnick, Faust, and Frazee
“for negligence.” Id.
admit a use of force incident occurred on June 11, 2018,
involving Gilbert. But, they have submitted verified records
indicating that the force was required by Gilbert's
behavior and did not result in the injuries claimed by
Gilbert. ECF 14.
29, 2018, Warden Graham provided a “Serious Incident
Report/Use of Force” to Director of Security Operations
James Flood at the Maryland Department of Public Safety and
Correctional Services (“DPSCS”). It details the
incident of June 11, 2018. See ECF 14-3 at 2 (cover
exhibits submitted by defendants reflect that at about 8:55
a.m. on June 11, 2018, while Gilbert was in the WCI library,
Gilbert asked to speak with librarian Liam Kennedy regarding
a library book that Gilbert claimed belonged to him. ECF 14-3
at 20 (Notice of Rule Violation by Kennedy). Kennedy stated
that the “book has been a part of the Library
collection since February 2018” but Gilbert claimed
“it was improperly donated to the library by another
inmate that had possession of the book.” Id.
Kennedy explained that Gilbert would “need to show
[him] compelling evidence that the book belonged to
him” before it could be returned to Gilbert.
Id. After “no more than five minutes of
exchange, ” Kennedy claimed that Gilbert became very
agitated and stated, “‘I am going to smack you in
the fucking face with this book.'” Id.
Kennedy returned to his office and called the Education
Custody Officer's post to report what had occurred.
Id. Officer Frazee, who was assigned to the
duty-post along with Officer Faust, received Kennedy's
report of Gilbert's threat. Id. Both officers
came into the library, clarified the report with Kennedy,
identified Gilbert, and escorted him from the library.
told Gilbert he would be subjected to a pat down search and,
following the search, he would be required to place his hands
behind his back. ECF 14-3 at 21 (Notice of Infraction by
Faust). Gilbert refused to comply with the
directives. Id. Officer Warnick, who had been called
to escort Gilbert, arrived as Gilbert kicked Officer Faust in
the left shin. Id. In response, Warnick physically
restrained Gilbert and put him on the floor. Id.
Gilbert continued to refuse orders from staff to put his
hands behind his back so that he could be handcuffed.
Id. Sgt. Brown had responded to the area and
“knelt down on Gilbert's legs” to assist
Frazee, Faust, and Warnick in restraining Gilbert with
handcuffs. Id. at 15.
restrained, Gilbert was escorted to Housing Unit #4 by
Warnick and Sgt. J. Krumpach. ECF 14-3 at 16. Warnick
reported that as they entered the housing unit door,
“Gilbert pulled away and began kicking his legs”
towards Sgt. Krumpach and Warnick. Id. Sgt. Slate,
the officer in charge (“OIC”) of the housing
unit, ordered Gilbert to stop, but he did not comply with the
order. Therefore, Slate deployed a “quick burst of
pepper spray” to Gilbert's face, causing him to
stop his resistance. Id.; see also Id. at
18 (report by Sgt. Slate). Warnick and Krumpach regained
control of Gilbert and placed Gilbert “in the Hu#4
property room cage, where he remained until the arrival of
medical.” Id. M. Klepitch, R.N., evaluated
Gilbert and “treated him for exposure to pepper
spray.” Id. Gilbert was then photographed,
declined the opportunity to make a statement, and received a
decontamination shower. Id. Following his shower,
Gilbert was escorted to a holding cell where he was placed on
“staff alert status.” Id.; see also
id. at 17 (report by Sgt. Krumpach).
notes of Gilbert's examination indicate that he was
“Sprayed with Red pepper spray over face and upper
torso.” ECF 14-3 at 23. When Klepitch asked Gilbert
what had occurred, Gilbert indicated that “he has been
taking his medications but they are not helping.”
Id. Gilbert's breathing was “clear even
and non-labored” and he had “[n]o marks on
hands[, ] face or torso.” Id. Klepitch
referred Gilbert to Behavioral Health for evaluation and
treatment based on Gilbert's statement regarding his
medication. Id. at 23-24.
days after the incident, Gilbert was seen by Janette Clark,
NP for a “wellness check.” ECF 14-10 at 11. Nurse
Clark described Gilbert as having “[m]ild size
ecchymosis of different stages of healing . . . under [his]
left eye.” Id. There were no other visible
injuries and Gilbert's breathing was
“unlabored.” Id. On July 20, 2018, a
chest x-ray was performed after Gilbert reported being
“kicked in the chest 3 weeks go.” Id. at
15. The x-ray was normal. Id. at 13.
was charged by Kennedy and Faust with violations of Rule 104,
Rule 312, Rule 101, Rule 400, and Rule 405. See ECF
14-3 at 20, 21. Gilbert pleaded guilty to all rule
violations at a hearing in June 2018. ECF 14-3 at 42-45
(Inmate Hearing Record). Gilbert lost 250 days of good
conduct credit; his visitations were indefinitely suspended;
and he was placed on disciplinary segregation for 250 days.
Internal Investigations Division (“IID”) for
DPSCS conducted an investigation into the incident of June
11, 2018. ECF 14-9. In connection with the IID investigation,
Detective Sgt. Fagan interviewed Gilbert on February 14,
2019. Id. at 9.
claimed he was outside the library with the officers and that
“they kicked him and tried to break his arms.”
Id. He also claimed that “they drug him back
to housing unit 4” and that “he was
bleeding” and sustained a black eye and bruised ribs.
Id. According to Gilbert, Frazee “kicked and
punched him” and Warnick “put his foot on
[Gilbert's] neck.” Id. Gilbert also
related that he was sprayed with pepper spray. But, he did
not mention an exacerbation of a preexisting respiratory
condition. Id. The IID investigation
“discovered no evidence to corroborate Inmate
Gilbert's report.” Id. at 10.
no video surveillance of the incident was available for
review by the IID. This was due to the location of the
encounter, which occurred in a hallway between two cameras.
And the property room where Gilbert was pepper-sprayed does
not have a surveillance ...