Kelly v. Hill, Civil Action No.: ELH-20-2531

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen L. Hollander United States District Judge
Decision Date19 July 2021
Docket NumberCivil Action No.: ELH-20-2531


Civil Action No.: ELH-20-2531


July 19, 2021


Keith Darnell Kelly, a Maryland prisoner, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983. In a 68-page Complaint, Kelly alleges a multitude of claims, including use of excessive force, denial of medical care, and retaliation. ELH 1 (Complaint). He has also included exhibits. And, Kelly filed a motion to amend as well as an Amended Complaint. ECF 8.2

Page 2

Numerous motions are pending. They include Kelly's motion for leave to amend his Complaint (ECF 8); plaintiff's motion for preliminary injunction (ECF 18); plaintiff's motion for physical and mental examinations (ECF 31); and Kelly's motion for Clerk's entry of default (ECF 33). Also pending are defendant Kellie Boward's motion to dismiss or for summary judgment (ECF 23), supported by a memorandum (ECF 23-1) (collectively, "Boward Motion") and exhibits; a motion for extension of time to respond to the suit, filed by defendants Warden Frank Bishop, Jr.; Warden Casey Campbell; Warden Curtis Cornell; Kristofer Davis; Dustin Fignar; Commissioner Wayne Hill; Lawrence Miller; Richard Roderick; Megan Thrasher; Lander Walley; and Dwight Barnhart (collectively, "State Defendants") (ECF 32); and State Defendants' motion to dismiss or for summary judgment (ECF 34), supported by a memorandum (ECF 34-1) (collectively, "State Motion") and 20 exhibits.3 Kelly opposes both dispositive motions. ECF 30; ECF 37. And, he has submitted exhibits with his responses.

Also pending is the motion of the Maryland Division of Correction ("DOC") to strike the DOC as an "Interested Party." ECF 21. The DOC's motion shall be granted, and the Clerk shall be directed to remove "Interested Party" from the docket.

No hearing is necessary to address the pending motions. See Local Rule 105.6 (D. Md. 2018). For the reasons stated below, I shall grant the Boward Motion; the State Motion shall be granted in part and denied in part; and I shall grant Kelly's motion for leave to amend. But, I

Page 3

shall deny Kelly's motions for preliminary injunction, for physical and mental examinations, and for Clerk's entry of default.

I. Factual Background

A. Kelly's Allegations

On May 28, 2019, Kelly was an inmate at Roxbury Correctional Institution ("RCI") in Hagerstown, Maryland, assigned to disciplinary segregation. ECF 1 at 5-6, ¶ 18. He is now confined at North Branch Correctional Institution ("NBCI"). Id. ¶ 3.

Plaintiff claims that on that date, defendant Walley came to his cell to escort him to a case management review hearing. Id. Kelly recalls that Walley opened the tray slot on the cell door, handcuffed Kelly behind his back, called for the cell door to be opened, and searched Kelly after he exited the cell. Id. at 6, ¶¶ 19, 20.

According to Kelly, during the escort to the review hearing, Walley engaged in what Kelly describes as a "very unprofessional, threaten[ing] and dangerous conversation" in which Walley called plaintiff a "rat (snitch)" and a "scared bitch." ECF 1 at 6, ¶ 21. Kelly alleges that Walley "talked about how he would fuck up" Kelly's "bitch ass brother" because he called the prison on Kelly's behalf. Id. Further, Kelly alleges that Walley threatened to set Kelly up because Kelly had written complaints about Walley and other officers. Id.

Kelly acknowledges that he used profanity when addressing Walley and that he told Walley he was going to complain about Walley's threats. Id. Kelly recalls that Walley told him he did not care and again threatened Kelly's brother with assault. ECF 1 at 7, ¶ 21. Upon arriving to the area where the segregation reviews were taking place, Walley told Kelly "to have a seat" and he also said: "'Don't move you little bitch.'" Id. ¶ 24.

Page 4

After Kelly was seated, defendants Davis, Cornell, Fignar, and an officer named either Powers or Powell arrived, escorting other inmates for segregation reviews. ECF 1 at 7-8, ¶ 25. Kelly recalls Cornell asking Walley what was going on and speculates that Cornell must have heard Walley telling plaintiff not to move. Id. at 8, ¶ 26. Kelly alleges that Walley told Cornell nothing was going on. Id. After Fignar and Davis seated the inmates they were escorting, Kelly claims they began a verbal assault against him. Id. ¶ 27. Kelly states that Fignar said he could not wait "'until those gangs get a hold of your coward ass'" and that Kelly was "'all mouth.'" Id. ¶ 28. Kelly claims that Cornell also said all Kelly does "'is run his big mouth'" and accused him of being too scared to have a cellmate. Id. ¶ 29.

According to Kelly, Walley then joined in and repeated that Kelly was a "rat and a coward" and made vulgar remarks about what he would make Kelly and his brother do. Id. at 9, ¶ 30. Kelly admits that he also engaged in the verbal exchange and made vulgar, threatening statements about Walley's children and his wife. Id. ¶ 31. Kelly recalls Walley said that Kelly "'better watch his back at all times'" because "'cell doors do malfunction,'" especially the doors on cells housing members of the gang known as the Bloods. Id. ¶ 33. Kelly explains that the Bloods have threatened his life and claims those threats are the reason he was on disciplinary segregation. Id. ¶ 34.

Kelly was escorted into the review room by Davis, who remained in the room during the hearing. ECF 1 at 12, ¶ 39. Kelly recalls that the review team consisted of a Case Management Staff Member, Dwight Barnhart; Chelsea Finucane; an "Intel" officer; and another Case Management staff member who was conducting the hearing. Id. During the hearing, Kelly asked why he had not been transferred to another prison yet and advised the review team that he was still being threatened by other inmates and officers. Id. Kelly claims he also told the review

Page 5

team about the verbal exchange that had just taken place prior to his entry into the hearing. Id. at 12-13, ¶ 39. In answer to plaintiff's questions, Barnhart advised that Kelly could not be transferred because he was viewed as a "serious disciplinary problem and officers daily viewed [his] 'daily behavior' as poor." Id. at 13, ¶ 39. Kelly asserts that Barnhart's statements were untrue. Id.

Kelly also complained to the review team about officers not sending out his mail and claimed the officers threw away his mail or gave it to gang members. ECF ¶ 40. Kelly specifically alleges that Fignar, Walley, Davis, and Officer Quackenbush are "guilty of mail fraud and tampering." Id. Kelly also asked the review team why he was still charged with assaulting inmate Dominic Frazier when an investigator had concluded that Kelly was simply protecting himself from Frazier, a known member of the Bloods. Id. at 13-14, ¶ 41. Kelly noted that Fignar had dropped the rule violation for assault that was brought against Frazier and had helped Frazier get released to home detention. Id. at 14, ¶ 41.

Kelly recalls that he provided the review team with dates and times of incidents to support his claims. They include the following, ECF 1 at 14-16, ¶ 424:

Kelly claims that in August 2018 he was attacked by members of BGF, i.e., a gang known as the Black Guerilla Family, and that they had advised him they were hired by Officers Reel and Fignar to assault him so he would close his "big mouth." ECF 1 at 15, ¶ 42.

On March 25, 2019 at 10:56 a.m., Kelly gave a mental health nurse a request form stating he was in danger from both officers and inmates.

On March 29, 2019 at 10:00 a.m., Officer Reel came to Kelly's cell door laughing about the false infraction he had issued against Kelly and stating: "'I can't wait to get my BGF . . . on that ass again.'"

On April 4, 2019, Kelly wrote to Warden Campbell regarding gang members and Officers Fignar and Davis.

Page 6

On April 5, 2019 at 10:10 p.m., Kelly spoke to an investigator about the complaints he had filed regarding "dirty officers." Kelly's offer to take a polygraph test was declined by the investigator.

On April 8, 2019, Davis and Fignar called Kelly a rat and told a BGF member working on the tier that Kelly had filed a complaint about BGF members playing with Kelly's food.

On April 20, 2019 at 11:25 p.m., Officer McVey came to Kelly's cell door and warned out loud that Kelly should be careful about writing everyone up.

On April 23, 2019 at 7:10 a.m., Fignar called Kelly a "'rat'" and a "'coward'" and told other inmates that Kelly was "' scared to come off of lock-up.'" Fignar then threatened that officers would assault Kelly again like they had the year before.

On May 11, 2019 at 7:12 p.m., an officer threw Kelly's administrative remedy procedure requests ("ARPs") in the trash.

On May 21, 2019 at 4:25 p.m., Kelly gave Officer Moore a written complaint to be placed in the in-house mail to the Warden.

On May 22, 2019 at 10:22 a.m., Cornell came to Kelly's cell and said, "'You still alive.'"

On May 26, 2019 at 11:40 p.m., Officer McVey called Kelly a "scared bitch" and said he couldn't wait for Kelly to get payback for writing officers up.

Kelly states that Davis interrupted Kelly's presentation and asked if the review team was done with Kelly. Id. at 16-17, ¶ 43. When Davis was advised that the team had "been finished," Davis began to escort Kelly from the room. Id. at 17, ¶ 43. Kelly claims the review team's dismissal of the events he was recounting amounted to deliberate indifference to his need for protective custody.5 Id. Kelly particularly faults Hill, Warden Campbell, and Barnhart for ignoring the credible information regarding the threats Kelly had received, and claims they also

Page 7

ignored repeated recommendations of RCI's own Investigative Division, which stated that Kelly should be transferred. Id., at 17-18, ¶...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT