Wagner v. Iames
| Decision Date | 27 February 2017 |
| Docket Number | Civil Action No. ELH-16-98 |
| Parties | JOHN ALEXANDER WAGNER, #371-133 Plaintiff, v. BRIAN G. IAMES, DEAN W. ROUNDS, SR. CODY W. GILPIN, WARREN G. MALLOW, FRANK B. BISHOP, JR. BRADLEY A. WILT, NP JANETTE CLARK Defendants. |
| Court | U.S. District Court — District of Maryland |
John Alexander Wagner, the self-represented plaintiff, is an inmate at North Branch Correctional Institution ("NBCI") in Cumberland, Maryland. He has filed a § 1983 civil rights action (ECF 1), in which he has sued the seven defendants named in the caption. Id.1 Wagner's Complaint, with numerous attachments, totals almost 100 pages. ECF 1; ECF 1-1; ECF 1-2; ECF 1-3; ECF 1-4.
Wagner alleges multiple claims: use of excessive force; failure to protect from harm; denial of adequate medical care; denial of due process; and retaliation. The claims are rooted inan incident at NBCI on September 24, 2014. ECF 1. In addition to substantial compensatory and punitive damages, Wagner seeks preliminary and permanent injunctive relief; transfer to another correctional institution; a medical evaluation by a provider outside the prison; and an order to record his movements whenever he is outside his cell; and compensatory and punitive damages. ECF 1 at 3; ECF 1-1 at 10-11.2
The Complaint is lengthy and repetitive.3 It includes a 3-page court approved §1983 complaint form that is supplemented by an additional 54-pages labeled as a "Complaint"; a copy of a Request for Administrative Remedy ("ARP"), NBCI #2745-14; two notices of infractions dated September 24, 2014; a motion for appointment of counsel with a supporting declaration; a motion to proceed in forma pauperis; a proposed order to show cause with a temporary restraining order and supporting declaration; declarations of other inmates; and a copy of a 30-page complaint that Wagner filed in the Circuit Court for Baltimore City, Case No. 24-C-14-006421. ECF 1; ECF 1-1; ECF 1-2; ECF 1-3; ECF 1-4.4
Defendant Janette Clark, N.P. has filed a motion to dismiss, or, in the alternative, for summary judgment (ECF 26), supported by a memorandum (ECF 26-1) and exhibits (collectively, "Clark's Motion"). Defendants Warden Frank B. Bishop, Jr.; Lt. Bradley A. Wilt; Sgt. Brian G. Iames; C.O. II Dean W. Rounds, Sr.; C.O. II Cody W. Gilpin; and C.O. II Warren G. Mallow ("State Defendants") also filed a motion to dismiss or, in the alternative, for summary judgment (ECF 33), supported by a legal memorandum (ECF 33-2) and numerous exhibits. SeeECF 33-4 to ECF 33-22; ECF 43-1 (collectively, the ). They deny the allegations and assert, inter alia, defenses of respondeat superior and qualified immunity. Plaintiff filed a consolidated opposition (ECF 38) along with a memorandum, a statement of disputed material facts, declarations, a request for discovery, and 141 pages of exhibits. See ECF 38-1 to ECF 38-6. Nurse Clark replied. ECF 42.
Also pending are Wagner's motion (ECF 35) for an extension of time to reply to Clark's Motion; a motion for a temporary restraining order and a preliminary injunction (ECF 8); two motions to preserve evidence (ECF 16 and ECF 36); and a motion to appoint counsel. ECF 39.
No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2016).
I will construe Clark's Motion as a motion for summary judgment (ECF 26) and enter judgment in Clark's favor. As to State Defendant Wilt, I will construe the State's Motion (ECF 33) as a motion to dismiss and grant it. As to the due process claim against the remaining State Defendants, I will construe the State's Motion as a motion to dismiss and will grant it, without prejudice to plaintiff's right to amend his Complaint. As to the remaining claims and the remaining State Defendants, I shall construe the State's Motion as one for summary judgment. As to Warden Bishop, I shall grant the State's Motion. As to State Defendants Gilpin, Rounds, Mallow, and Iames, there are genuine issues of material fact as to the remaining claims. Therefore, I shall deny the motion for summary judgment as to the remaining State Defendants, as outlined below.
I will also grant Wagner's motion for appointment of counsel (ECF 39) and his motion for an extension of time, nunc pro tunc (ECF 35). But, I will deny plaintiff's motions to preserve evidence (ECF 16 and 36) and his motion for a restraining order and a preliminary injunction (ECF 8).
Wagner claims that on September 24, 2014, beginning at about 12:15 p.m., Officers Iames, Rounds, Gilpin, and Mallow became "threatening and aggressive" toward him in retaliation for Wagner's meeting with an investigator for the Internal Investigation Unit ("IIU"). ECF 1-1 at 2, ¶¶ 12, 13, 14; see ECF 33-8 at 1; ECF 33-11 at 10-11, 42-43; ECF 43-1 at 1; ECF 33-6 at 2, 5.5 According to Wagner, at the relevant time he was in full restraints and posed no threat to the officers, other prisoners, or himself. ECF 1-1 at 2-3, ¶ 17. And, he complains that the incident of September 24, 2014, was the "sixth inordinate use of force" against him. ECF 1 at 3.6
Wagner recounts that Iames "maliciously" removed Wagner's legal mail, writing materials, and asthma medication from the contingency cell. ECF 1-1 at 2, ¶ 15. While Wagner was "speaking against the misfeasance of defendants' actions," Gilpin and Rounds started to "aggressively pull" on his arms and Mallow grabbed his cuffs from behind. Id. at 3, ¶ 18. Iames told Wagner that he should not have contacted the IIU, and instructed Gilpin and Rounds to place Wagner in the cell. When Wagner complained he was being punished for litigating and needed his legal materials, he was told that he was making trouble by complaining and filingadministrative remedy procedure ("ARP") requests. ECF 1-1 at 3, ¶21.7 As Wagner was shoved into the cell, Rounds told him "'that shit just got a lot worse for you.'" Id., ¶ 22. Wagner responded: "'Fuck you cowards.'" Id., ¶23. An unidentified guard answered: "'Fuck you nigger.'" Id.
When Mallow removed Wagner's leg restraints, Wagner attempted to run onto the tier toward the cameras to call for help, and so that someone could see what was happening. ECF 1-1 at 3, ¶ 30. He yelled, " " Id. Wagner avers that Iames instructed the other correctional officers to keep him inside the cell. Id. at 4, ¶ 31.8 Mallow placed a tether on Wagner's restraints and, with Gilpin and Rounds, pulled him into the cell by his face, neck, tether, and arms. Id. During the struggle, Wagner injured his mouth when he "got swung into a wall" by Gilpin. Id., ¶ 37. Wagner states that when he tried to spit blood from the wounds to his lips, Gilpin said: "'You black bitch you wanna spit.'" Id., ¶ 38. Then, with "a closed fist," Gilpin punched Wagner in the eye and the bridge of his nose. Id. Rounds hit Wagner in the jaw and lower eye area. Id., ¶ 39. Gilpin spit at Wagner and asked him how he liked it. Id., ¶ 40; ECF 1 at 3. Officers Soltas, Dolly, and Iames dragged Wagner to the cell door and his restraints were removed through the door slot. ECF 1-1 at 4, ¶ 42.
Wagner asserts, in part, ECF 1 at 3:
On 9/24/2014 after speaking with I.I.U. detective I was returned to the stripped isolation cell where I was told "I shouldn't have spoken to I.I.U. & that I just made shit worse on myself.["] Ofc. Rounds & Gilpin slammed my face into themetal plate twice cutting and drawing blood both times. I was then rammed face first into the wall busting my mouth/nose. I was the [sic] punched with closed fist of Ofc. Gilpin & Rounds Sr., Gilpin then spit in my face as Rounds attempted to slam me on the metal bench when I tried to get out of the cell in front of the camera. Sgt. Iames told them to keep me in the cell. Gilpin, Rounds & Mallow pulled/held me by the cuffs, neck & tether cutting my wrist, arm & hands. My eye was leaking blood from several 'holes'/cuts to left eye. Sgt. Iames & CO Mallow did not stop this attack. Iames actually encouraged the matter. Other officers helped pull me to the slot only. These officials are hurting me here.
Wagner claims that Rounds and Gilpin "repeatedly slammed [his] face and head into the metal-steel plate located on the left of contingency cell #3" and "rammed" his face and head into the steel plate. ECF 1-1 at 3, 4, ¶¶ 24, 26, 46. Further, Wagner claims that Rounds hit him with his fist in the jaw and "lower eye area." ECF 1-1 at 4, ¶ 39. And, Gilpin "swung" Wagner into the wall. Id., ¶ 37. Gilpin, Rounds, and Mallow were holding and pulling Wagner's face, neck, arms, and the tether. Id., ¶ 31. In addition, Rounds and Gilpin used "the metal plate and wall as the weapon" (id., ¶ 47), which injured Wagner's left eye, nose, mouth, and temple. ECF 1-1 at 3, 4, ¶¶ 25, 26, 28, 29, 46. As a result of his injuries, Wagner became dizzy and momentarily lost consciousness. Id. at 3, ¶ 29.9
Plaintiff asserts that "Mallow and Iames witnessed the entire assault and did nothing to preclude or prevent" it. Id. at 5, ¶ 48. Notably, Wagner acknowledges that "they did not participate in the heart of the assault," but he complains that they failed to stop it and Iames actually "encouraged" it. Id.
Wagner claims that he was left in his cell bleeding and in pain. It was not until his fellow inmates caused a disturbance that he was taken to the medical unit for evaluation. Id. at 4, ¶ 43. Although Wagner does not specify the length of time he waited for a medical escort, his medical records indicate that he was seen by Nurse Practitioner Janette Clark at 1:00 p.m., i.e., within 45minutes of when the incident began. ECF 28 at 7. Soltas, Dolly, and Anderson told Wagner to put on a spit mask if he wanted to be seen in the medical unit. Wagner cooperated and was placed in hand restraints cuffed from the back, leg irons and a spit mask. ECF 1-1 at 4, ¶¶ 44, 45; id. at 5, ¶ 50.
According to Wagner, he was just standing and asking questions...
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