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Gilbert v. CO II Warnick

United States District Court, D. Maryland

January 13, 2020



          Ellen L. Hollander United States District Judge.

         Steven 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 responded.

         A 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.[1]

         I. Background

         Gilbert's 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.

         Gilbert 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.

         Gilbert 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.

         Defendants 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.

         On June 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 letter).

         The 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).[2] 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. Id.

         Frazee 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).[3] 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.

         Once 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).

         Klepitch's 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.

         Four 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.

         Gilbert 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.[4] 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. Id.

         The 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.

         Gilbert 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.

         Notably, 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 ...

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