Drumgo v. Little et al

Filing 55

MEMORANDUM. Signed by Judge Gregory M. Sleet on 2/24/2017. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DESHAWNDRUMGO,.
Plaintiff,
v.

MIKE LITTLE, et al.,
Defendants.

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) Civ. Action No. 14-1136-GMS
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MEMORANDUM
The plaintiff, DeShawn Drumgo ("Drumgo"), an inmate at the James T. Vaughn
Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C.
§ 1983. 1 (D.I. 3.) He appears prose and was granted permission to proceed informapauperis.

(D.I. 6.) Pending before the court is the defendants' motion for summary judgment. (D.I. 45.)

I.

FACTUAL AND PROCEDURAL BACKGROUND
The complaint alleges violations of the First, Sixth, Eighth, and Fourteenth Amendments

to the United States Constitution. (D.I. 3.) On November 24, 2014, the court screened the
complaint and allowed Drumgo proceed on: ( 1) claim two, retaliation claims against the
defendants C/O Roy Foraker ("Foraker"), Sgt. Patrick Iwaskiewicz ("Iwaskiewicz"), Tim Martin
("Martin"), and Mike Little ("Little"); (2) claim three, excessive force claim against Lt.
Stevenson ("Stevenson") and failure to intervene claim against and C/O Timothy Moss
("Moss"); and (3) claim five, excessive force and retaliation claims against C/O Kirlin ("Kirlin")

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When bringing a § 1983 claim, a plaintiff must allege that some person has deprived him
of a federal right, and that the person who caused the deprivation acted under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).

and C/O Shannon Corbett ("Corbett"). All other remaining claims and defendants were
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) and 1915A(b)(l).

A.

Allegations in the Complaint
1.

Claim 2, Retaliation against Foraker, Iwaskiewicz, Martin, and Little

Drumgo alleges that on February 11, 2014, Foraker, Iwaskiewicz, Martin, and Little took
actions concerning Drumgo' s confidential materials to teach Drumgo a lesson for filing civil
complaints and grievances. Drumgo alleges that after he saw his attorney on February 11, 2014,
Foraker, Iwaskiewicz, and Martin showed Drumgo copies of his confidential materials. Drumgo
alleges that Iwaskiewicz passed the documents to Foraker who passed them to Martin, who them
brandished them in front of Drumgo. Drumgo was able to get glimpses of the documents.
Drumgo alleges that Iwaskiewicz told him that Little was trying to teach Drumgo a lesson for
filing civil complaints and grievances.

2.

Claim 3, Excessive Force against Stevenson and Failure to Intervene
against Moss

Drumgo alleges that on April 5 or 6, 2014, when he was transferred to Building #21,
Iwaskiewicz and Stevenson refused to honor a memo from Major Costello that allowed
Drumgo's legal work to follow him to isolation. Drumgo asked Moss for his documents, to no
avail. When Drumgo refused to walk, he was loaded onto a food cart and taken to the infirmary
for review of injuries. Drumgo alleges that Moss and Stevenson were angry that he would not
walk so they dragged him by the handcuffs. Drumgo alleges Stevenson used Drumgo's shirt to
strangle him and that he punched Drumgo in the back of the head, while Drumgo was
handcuffed. Drumgo alleges that Moss failed to intervene or stop the beating.

2

3.

Claim 5, Retaliation and Excessive Force against Kirlin and Corbett

Drumgo alleges that on August 4, 2014, Kirlin and Corbett forced him to remain in a buginfested shower infested for 45 minutes in retaliation for a lawsuit he filed against Anthony
Burris ("Burris"). Kirlin then read aloud the names of other officers from Drumgo's documents.
Drumgo began kicking the shower door to get the attention of mental health, and Kirlin came to
retrieve Drumgo from the shower. Drumgo alleges that he did not resist and that he put his hands
behind his back. When he saw his cell in complete disarray he sat down Indian style,
submissively, posing no threat. Drumgo alleges that Kirlin became agitated and yelled for
Corbett to spray Drumgo. Corbett sprayed Drumgo while Kirlin kneed him in the cheek.
Another correctional officer told Kirlin to stop. Drumgo was taken to isolation. Drumgo asked
to shower because of the burning from the spray, but received no response.

B.

Facts as Presented by the Parties
1.

February 2014 Retaliation

On January 29, 2014, Drumgo was moved to the B-building. (D.I. 46, ex. A.) Drumgo
complained that he had not received legal mail after the change in his housing assignment. (D.I.
47, Iwaskiewicz Deel.) Drumgo, who had seven boxes oflegal documents, was informed that
prison policy provides allows inmates only three storage boxes in their cell, and he had too many
boxes. (D.I. 47, Iwaskiewicz Deel.; Little Deel.) The amount of personal material an inmate is
allowed is limited due to safety and security reasons. (Id. at Little Deel.) Little asked Martin to
speak to Drumgo to obtain a forwarding address to send the excess legal materials. (D.I. 47,
Martin Deel.) Foraker escorted Drumgo from A tier to B tier. (Id) Martin was in the B
Building security office with Iwaskiewicz, identified himself, and asked Drumgo for an address

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so that Drumgo' s property could be sent there. (Id.) Drumgo asked Martin if he had his
property, and Martin told Drumgo that he did not. (Id.) Drumgo told Martin to send his property
to the District Court. (Id.)
Martin states that none of Drumgo' s property was present and that his only involvement
with Drumgo's legal materials was to secure an address so that Drumgo's excess property could
be sent there. (Id.) Martin states that he did not brandish Drumgo' s legal materials, and he did
not review Drumgo's legal materials. (Id.)
As is customary, Drumgo's personal property was inventoried upon his transfer. (Id. at
Iwaskiewicz Deel.) Drumgo testified that he began "bugging the hell out of [the officers] about
[his] property, because he had been without it for a month. (D.I. 46, ex. B at12.) Drumgo
testified that he was told by a worker in the property area that Little had his legal documents.

(Id.) Little is the VCC Legal Services Administrator, but Drumgo knew Little as a law librarian.
(D.I. 46, Ex.Bat 13; D.I. 47 Little Deel.). Drumgo submitted grievances, dated January 31,
2014 and February 2, 2014, complaining that he was being deprived of his legal documents and
legal mail. (D .I. 51, ex. D.) The January 31 grievance states that Drumgo was. "informed that []
Little is reading all [his] legal mail outside of his [presence]." (Id.) The February 2 grievance
states that Drumgo was told that Little was seizing and reading Drumgo's documents in an
attempt to find out what documents supported four cases that Drumgo claimed were currently
open. (Id.) Inmates Christopher Johnson and Dwayne Staats provided statements regarding
Drumgo's stress over his legal work. (Id. at exs. F, G.)
Iwaskiewicz worked on February 11, 2014, and distributed mail to inmates as part of his
duties. (D.I. 47, Iwaskiewicz Deel.) Iwaskiewicz states that he does not review or check mail for

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any reason. (Id.) Drumgo asked Iwaskiewicz about his legal mail, but the exchange only
included Iwaskiewicz telling Drumgo he would speak to Little, nothing else. (Id.) Foraker
worked the same shift that day and he did not read, review, or share brumgo's mail with
Iwaskiewicz or Martin. (Id.)
During his deposition, Drumgo stated that Iwaskiewicz and Foraker, said, "[o]h Mike
Little is trying to teach you a lesson with you filing all these civil complaints and grievances ...
." (D.I. 46, ex.Bat 12, 14, 16.) Plaintiff did not remember if Martin said anything. (Id. at 15.)
Drumgo testified that Little had testified against him "in previous dealings," so the last thing he
wanted was for Little to review any of his documents. (Id. at 21.) Drumgo also testified that
Iwaskiewicz, Foraker, and Martin were passing around his documents that had been copied, and
that he described as "privileged lawyer envelopes and privileged lawyer letters." (Id. at 14-15.)
Iwaskiewicz states that Martin did not pass around Drumgo's legal mail and Martin did not say
that Little was trying to teach Drumgo a lesson. (D.I. 47, Iwaskiewicz Deel.)
Drumgo submitted a grievance on February 11, 2014, and stated that he had been told by
Martin about the three box rule, that he thought the policy was unreasonable, asked for a
reasonable alternative, and complained that he still had not received his legal documents. (D.I.
46, ex. E.) The grievances makes no mention oflwaskiewicz, Foraker, or Martin passing around
his documents.
Little met with Drumgo on February 18, 2014 to work out a plan for Drumgo to reduce
the number of his boxes. (D.I. 47, Little Deel.) Drumgo was provided an area to go through all
his legal materials and, after two and one-half hours, reduced his material to three boxes. (Id.)
The remaining four boxes are stored in a property room at the VCC, although Drumgo requested
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that they be sent to the United States District Court for the District of Delaware. (Id) Little
states that he has not, and does not, read Drumgo' s legal mail, and he does not make copies of
Drumgo's documents to send to the State. (Id.) At his deposition, Drumgo recalled that he and
Little were "together for a nice bit of time" when he went through his documents. (D.I. 46, ex. B
at 32- 33.)

2.

April 2014 Excessive Force and Failure to Intervene

On April 7, 2014, following an altercation with Foraker and Iwaskiewicz, Drumgo was
ordered to cuff up. (D.I. 46, Ex. F.) Drumgo was placed in the phone room and received a write
up for demonstrations, disorderly or threatening behavior, disrespect, and failure to obey an
order. (Id.) Later, Drumgo was transferred to the Security Housing Unit ("SHU") for
pre-hearing detention. (D.I. 46, ex. G.) Drumgo was being escorted to the infirmary for a
medical screening prior to placement in pre-hearing detention, but he refused to walk because he
had not been given his legal documents as he was allowed in the past pursuant to a memo written
by Major Costello. (D.I. 46, ex.Bat 46-48; D.I. 47 at Stevenson Deel.) Drumgo sat down with
his hands behind his back and expected the officers to call a code, which would bring the Quick
Response Team ("QRT") to the scene. (Id. at 48.) Drumgo believed the officers would place
him on a food cart and roll him to the building. (Id) Drumgo testified that he disobeyed the
orders in an effort to forgo the grievance process over the issue of his legal materials because he
believed the grievance process would be futile. (Id at 48-49.)
The officers did not call a code. (Id. at 50.) Drumgo sat on the ground for about five
minutes while he refused to obey orders to walk to the infirmary. (Id. at 53.) Next, Stevenson
(the area supervisor for B Building) and Moss were called to assist in picking Drumgo (who

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weighed about 204 lbs.) up from the floor and onto a haul cart. (D.I. 46, ex. Bat 52-53, 56; exs.
G, H; D.I. 47 at Stevenson Deel.) Drumgo was "rolled" to the infirmary. (D.I. 47 at Stevenson
Deel.) At the infirmary, he was asked to walk because the cart was too wide to fit through the
door. (D.I. 46, ex.Bat 56.) Drumgo refused. (D.I. 46, ex.Bat 56.) Stevenson told the other
officers that Drumgo would have to be carried since he was refusing to walk. (D.I. 47 at
Stevenson Deel.)· Stevenson and the remaining staff were forced to pick Drumgo up from the
floor. (D.I. 46, ex. G.)
Drumgo testified that he disobeyed direct orders to move, and officers dragged him by his
cuffs to the infirmary. (D.I. 46, ex.Bat 56, 60.) According to the incident report, Drumgo
resisted as Moss and Stevenson picked him up by his arms. (DJ. 46, ex. G.) Drumgo shouted at
the officers, calling them racists and Klan supporters. (D.I. 46, ex. H.) Drumgo testified that
Stevenson used Drumgo's shirt to strangle him and that Stevenson punched Drumgo in the back
of the head. during the trip. 2 (DJ. 46, ex.Bat 59, 61.)
The incident report indicates that Moss lost control of Drumgo's arm. (DJ. 46, ex. G.)
Stevenson stated that when Moss lost control of Drumgo's right arm, he placed his arm up·under
Drumgo' s arm and placed his hand on his shoulder and assisted the rest of the way into the
infirmary. (DJ. 47 at Stevenson Deel.) Drumgo testified that Moss did not say anything during
the incident, and that he failed to intercede. (Id.)
As they entered the examination room, Drumgo attempted to drop to the ground. (DJ. 47
at Stevenson Deel.) Stevenson and another officer placed Drumgo on the examination table.

(Id.) Stevenson checked the handcuffs after Drumgo complained that his left wri~t hurt, but the
2

Drumgo testified that his shirt was never removed. (DJ. 46, ex. B at 61.) .
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cuffs were not too tight. (Id.) Drumgo was seen by a nurse at the infirmary. (D.I. 46, ex.Bat
74-75.) Drumgo testified that he had no injuries and did not seek additional medical attention
from a nurse or doctor in connection with the incident. (Id.) After Drumgo asked to see mental
health because he was feeling suicidal, he was placed under watch in the psychiatric close
observation unit. (D.I. 46, ex. G; D.I. 47 at Stevenson Deel.)

3.

August 2014 Excessive Force and Retaliation

On August 4, 2014, at 10:00 a.m., there was a shakedown or random search of Drumgo's
cell. (D.I. 50.) Drumgo alleges that the search was in retaliation for a lawsuit he filed against
CIO Anthony Burris ("Burris") and that, during the search, he was forced to remain in a bug-

infested shower. (D.I. 3 at 4.) Corbett had no knowledge of any lawsuit Drumgo filed against
Burris. (D .L 4 7 at Corbett Deel.) According to Corbett, she knew the showers were not buginfested, and she did not secure Drumgo in the shower during the search for a lengthy timeframe. (D.I. 47 at Corbett Deel.) Nor did Drumgo tell the officers that the shower had bugs or
that he had concerns about waiting there while the search was conducted. (Id.)
During the search, Kirlin and Corbett heard Drumgo banging on the shower door. (D.I.
46 at Corbett Deel.) Kirlin and Corbett stepped out of Drumgo's cell and asked if everything was
okay and Drumgo screamed, "[expletive] you white supremacies [sic], this is retaliation for
grievances." (D.I. 46, ex. I; D.I. 47, Corbett Deel.) Kirlin and Corbett ordered Drumgo to stop
banging on the door, and then continued with the search ofDrumgo's cell. (D.I. 47, Corbett
Deel.) This was Corbett's only communication with Drumgo that day. (Id.) Corbett states that
Kirlin did not read from Drumgo's documents. (D.I. 47 at Corbett Deel.)

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At I 0: I 0 a.m., Drumgo continued to kick the shower door and yelled, "get me the
[expletive] out of the shower." (D.I. 50.) Drumgo was ordered to stop kicking. (Id.) Kirlin
called other officers to inform them of the situation and asked that officers be sent for
precautionary measures. (Id.) Drumgo was cuffed by Corporal Boromee ("Boromee") who had
arrived at the SHU with Officer Postley ("Postley"). (Id.) Drumgo was escorted to his cell and
when he reached the lower floor, he sat on the floor. (Id.) Drumgo was ordered to stand up and
return to his cell, and he refused. (D.I. 46, ex. B at 99; D.I. 50.) Drumgo testified that, in an
attempt to persuade him to go back into his cell, Kirlin told Drumgo that he would not write him
up. (D.I. 46, Ex.Bat 100.) Drumgo was ordered to roll onto his belly, and he refused. (D.I. 47,
Corbett Deel.; D.I. 50.) When Drumgo began to clear his throat as if to spit, Corbett deployed a
one second burst of her capstun to Drumgo's face. 3 (D.I. 47 at Corbett Deel.; D.I. 50.) Drumgo
testified that Kirlin yelled at Corbett to spray him. (D.I. 46, ex.Bat 101.) According to Corbett,
Kirlin was standing next to her and not near Drumgo when she sprayed Drumgo. (D.I. 47 at
Corbett Deel.)
Officers were informed that there was a passive resister and were asked to let the area
lieutenant know that capstun had been used. (D.I. 50.) After he was sprayed, Drumgo stated that
he had asthma and could not walk or breathe, although he continued to talk and, in the
observation room, he was singing and talking. (D.I. 46, ex. B at 102; D.I. 50) Lieutenant Daum
arrived and directed Kirlin and Boromee to carry Drumgo off the tier to the observation room for

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Drumgo testified that he called Corbett "everything in the book. I might have talked
about her mom. I might have told her I was going to kill her whole family." (D.I. 47, ex.Bat
I 03-104.) Drumgo also told Corbett that she was lucky that he only verbally assaulted her versus
"doing something physical to her." (Id. at 104.)
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medical assessment. (D.I. 50.) Drumgo testified that as he was being dragged off the tier, Kirlin
started kneeing and hitting him in the face, that he was kneed in the left cheek, and that Boromee
told Kirlin to stop. (D.I. 46, ex. B at 102, 110.) Corbett states that Kirlin did not knee Drumgo
in the cheek. (D.I. 47, Corbett Deel.) Drumgo did not recall seeing a nurse or a doctor. (D.I. 46,
ex.Bat 110.) Following a medical assessment with normal findings, Drumgo was escorted to
the SHU by the QRT. (D.I. 50.)
Drumgo was charged and found guilty of: (1) demonstrations; (2) creating health, safety,
or fire hazard; (3) disrespect; (4) failing to obey an order; (5) and off limits. (D.I. 47, ex. L.)
Drumgo did not to appeal the decision. (Id.)

II.

STANDARD OF REVIEW
The court shall grant summary judgment only if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
oflaw." Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that no genuine
issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 n.10 (1986). When determining whether a genuine issue of material fact exists, the
court must view the evidence in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
If the moving party has demonstrated an absence of material fact, the nonmoving party then

"must come forward with 'specific facts showing that there is·a genuine issue for trial.'"
Matsushita Elec. Indus. Co., 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)). However, a party
opposing summary judgment "must present more than just 'bare assertions, conclusory
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allegations or suspicions' to show the existence of a genuine issue." Podobnik v. United States
Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986)). If the nonmoving party fails to make a sufficient showing on an essential element
of its case with respect to which it has the burden of proof, the moving party is entitled to
judgment as a matter oflaw. See Celotex Corp., 477 U.S. at 322.
The defendants move for summary judgment on the grounds that: (1) Drumgo suffered
no adverse action or discipline in connection with his exercise of any constitutionally protected
activity with regard to the retaliation claim against Foraker, Martin, Little, and Iwaskiewicz;
(2) the conduct of Stevenson and Moss was proper and limited to the extent necessary to have
Drumgo comply with an order; (3) Stevenson and Moss did not retaliate against Drumgo for
filing lawsuits or grievances and merely sought to have Drumgo obey an order; 4 ( 4) Corbett ·and
Kirlin use the force necessary and took action, not out of retaliation, but in response to Drumgo's
repeated refusal to comply with officers' orders; and (5) the defendants have qualified immunity
as to the claims asserted against them.
III.

DISCUSSION

A.

Retaliation

Drumgo raises two retaliation claims; one occurring in February 2014 and the other in
August 2014. As to the February retaliation claim, Drumgo contends that summary judgment for
the defendants is not appropriate because Foraker, Iwaskiewicz, Martin, and Little passed around
his legal documents, read them, and told him that Little was trying to teach him a lesson for filing

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Drumgo did not raise a retaliation claim against Stevenson and Moss in claim three. He
raised an excessive force claim and a failure to intervene claim.
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grievances and lawsuits. As to the August 2014 retaliation claim, Drumgo contends that
summary judgment for defendants is not appropriate because his cell was searched in retaliation
for a lawsuit he filed against Burr, who is a friend and co-worker of Kirlin.
"Retaliation for the exercise of constitutionally protected rights is itself a violation of
rights secured by the Constitution actionable under§ 1983." White v. Napoleon, 897 F.2d 103,
111-12 (3d Cir. 1990). It has long been established that the First Amendment bars retaliation for
protected speech. See Crawford-El v. Britton, 523 U.S. 574, 592 (1998); Milhouse v. Carlson,
652 F.2d 371, 373-74 (3d Cir. 1981). Proof of a retaliation claim requires Drumgo to
demonstrate that: (1) he engaged in protected activity; (2) he was subjected to adverse actions by
a state actor; and (3) the protected activity was a substantial motivating factor in the state actor's
decision to take adverse action. Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002) (citing Mt.

Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see also Allah v. Seiverling, 229 F.3d
220 (3d Cir. 2000) (a factfinder could conclude that retaliatory placement in administrative
confinement would "deter a person of ordinary firmness from exercising his First Amendment
rights" (citations omitted)). The causation element requires a plaintiff to prove either: (1) an
unusually suggestive temporal proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.

See Lauren W ex rel. Jean W v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Krouse v.
American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997). "[O]nce a prisoner demonstrates
that his exercise of a constitutional right was a substantial or motivating factor in the challenged
decision, the prison officials may still prevail by proving that they would have made the same
decision absent the protected conduct for reasons reasonably related to a legitimate penological
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interest." Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001). When analyzing a retaliation claim,
courts consider that the task of prison administrators and staff is difficult, and that the decisions
of prison officials require deference, particularly where prison security is concerned. Rauser, 241
F.3d at 334.
With regard to the February 2014 retaliation claim, the evidence of record indicates that
Drumgo has filed lawsuits and submitted grievances, thus meeting the first prong of a retaliation
claim. His property was taken upon his transfer, thus meeting the second prong of a retaliation
claim. It appears from Drumgo' s testimony that he was most concerned about the length of time
that passed before his property was returned to him. The record indicates it was approximately
three weeks.
As to the third prong, the evidence of record does not support a finding that protected
activity was a substantial or motivating factor in the taking of Drumgo's property. Instead, the
evidence of record is that, because the property in Drumgo's cell far exceeded that allowed under
prison policy, it was taken for inventory and for Drumgo to determine what he wished to keep. It
is uncontroverted that prison policy limits the amount of personal material an inmate is allowed
in his cell due to safety and security concerns.
To the extent Drumgo argues that Foraker, Iwaskiewicz, Martin, and Little passed around
his legal documents, read them, or copied, they have submitted declarations denying those
claims. In addition, Drumgo provided conflicting testimony that, on the one hand Little had all
of his legal documents, while on the other hand Foraker, Iwaskiewicz, and Martin had access to
certain legal documents and were passing them around in such a manner that Drumgo was able to
determine what they were, even though they were three to four feet away from him. (DJ. 46, ex.
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Bat 14-15) Finally, the evidence of record does not support a finding that the actions taken by
Foraker, Iwaskiewicz, and Martin were due to Drumgo's submitting grievances or filing
grievances. Rather, when construing the evidence in the light most favorable to Drumgo,
Foraker and Iwaskiewicz merely appeared to be taunting Drumgo by telling him that Little was
trying to teach him a lesson. Notably, the acts taken by Foraker, Iwaskiewicz, Martin, and Little
had no effect upon Drumgo. He continues to engage in protected activity.
Drumgo also asserts that Corbett and Kirlin retaliated against him in August 2014 as a
result of a lawsuit he filed against Burris. It is unrefuted that Corbett had no knowledge of the
lawsuit Drumgo filed against Burris. In his reply, Drumgo argues, without evidentiary support,
that Kirlin was aware of the lawsuit because he is a co-worker and friend of Burris. However,
there is nothing ill the record to indicate that Kirlin had knowledge of the lawsuit. Also, Kirlin
stated that the August 2014 search was completely random. Accordingly, although Drumgo has
demonstrated that he engaged in protected activity and that he was subjected to an adverse action
by reason of a search of his cell, the evidence of record does not lead to the conclusion that
· Drumgo's protected activity was a substantial motivating factor in the decision to search his cell.
No reasonable jury could find in Drumgo's favor. Therefore, the court will grant the
defendants' motion for summary judgment as to the retaliation claims.

B.

Excessive Force and Failure to Intervene

Drumgo raises an April 2014 claim of excessive force claim against Stevenson; an April
2014 failure to intervene claim against Moss; and August 2014 excessive force claims against
Corbett and Kirlin.

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1.

Excessive Force

The Cruel and Unusual Punishments Clause of the Eighth Amendment protects inmates
against the application of excessive force by correctional officers. See Whitley v. Albers, 475
U.S. 312, 318-19 (1986). In an excessive force claim, the core judicial inquiry is not whether a
certain quantum of injury was sustained, but rather whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm. See Wilkins

v. Gaddy, 559 U.S. 34 (2010). Relevant factors relevant include: (1) the need for application of
force; (2) the relationship between that need and the amount of force used; (3) the threat
reasonably perceived by the responsible officials; and (4) any efforts made to temper the severity
ofa forceful response. Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citations omitted). The
absence of serious injury is a relevant, but not dispositive, additional factor to be considered in
the subjective analysis. Id.
The Eighth Amendment does not protect an inmate against an objectively de minimis use
of force. Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002). "There exists some point at
which the degree of force used is so minor that a court can safely assume that no reasonable
person could conclude that a corrections officer acted maliciously and sadistically." Reyes v.

Chinnici, 54 F. App'x 44, 48-49 .(3d Cir. 2002) (unpublished) (holding force was de minimis
where corrections officer punched inmate in the shoulder to avoid being spit on). Accord

Thomas v. Ferguson, 361 F. Supp. 2d 435, 439-41 (D.N.J. 2004) (finding that, "[e]ven if proven
to be true and for no necessary purpose, Defendants' alleged conduct ... does not meet the
Constitutional standard for a claim of a malicious and sadistic use of force 'repugnant to the
conscience of mankind,"' where inmate alleged he was punched and shoved by corrections
15

officers); Wilson v. Reinhart, 2003 WL 21756393 (D. Del. Jul. 29, 2003) (same where officer
sprayed inmate in the face with mace).
Viewing the record in light of these factors, the court finds that Drumgo cannot prevail on
· his excessive force claims. In both instances, the defendants took action after Drumgo disobeyed
or disregarded orders. With respect to the April 2014 incident, the parties provide slightly
differing accounts. It is undisputed that Drumgo refused to walk to the infirmary because he had
not been given his legal documents, and he admitted that he disobeyed orders of correctional
staff. Drumgo testified that he expected the officers to call a code that, in turn, would bring the
QRT who would be forced to pick up him up, place him on a cart, and roll him to the building.
Stevenson and Moss placed Drumgo, who weighed in excess of 200 lbs. onto a cart and rolled
Drumgo to the infirmary but, when they arrived at the infirmary, the cart would not fit through its
door. Drumgo was again asked to walk and he refused to do so. At that point, Stevenson and
other officers picked up Drumgo from the floor to move him into the infirmary, and Moss lost
control ofDrumgo's right arm. According to Stevenson, he placed his arm up under Drumgo's
arm and placed his hand on his shoulder as they made their way into the infirmary. According to
Drumgo, he was dragged by his cuffs, and Stevenson strangled Drumgo with Drumgo's shirt and
punched Drumgo in the head. Drumgo was medically examined, he had no injuries, and.Drumgo
testified that he never sought any medical attention.
Similar to the April 2014 incident, the parties provide slightly differing accounts
regarding the August 2014 incident. The undisputed evidence shows that Drumgo became
disruptive while his cell was being searched, to the extent that he was banging on a shower door
(where he was being held during the search) and yelling expletives. Drumgo was cuffed and
16

escorted to his cell, but when he reached the lower floor, he sat On the floor and, when ordered to
ordered to stand up and return to his cell, he refused. When he was ordered to roll onto his belly,
Drumgo refused. It was not until Drumgo began to clear his throat as if to spit, that a one-second
burst of capstun was deployed to his face. After he was sprayed, Drumgo stated that he had
asthma and could not walk or breathe, but he continued to talk and yell. He was then carried or
dragged off the tier. Drumgo testified that he was kneed in the left cheek, but he did not recall
seeing a nurse or a doctor. Incident reports indicate that he was medically assessed and all vitals
were "fine and normal" and that he was "completely fine." There is no evidence of an injury to
Drumgo's face.
The evidence indicates that, during both incidents, Drumgo was disruptive, disorderly,
recalcitrant, and repeatedly refused to obey orders. After Drumgo refused to walk, the
defendants were either forced to carry him, drag him, or place him on a cart to transport him. In
both instances, Drumgo' s complaints of maneuvers by correctional officers were not out of the.
ordinary in the context of controlling an inmate, particularly when physically moving an noncompliant individual who weighed over 200 lbs. In addition, there is nothing in the record to
indicate that the decision to capstun Drumgo was anything but an attempt to keep order. Even
construing the facts in the light most favorable to Drumgo, as the court must, the defendants'
actions must be afforded substantial latitude relative to Drumgo's safety and that of the
correctional officers. Here, the evidence of record fails to describe a use of force that is
"repugnant to the conscience of mankind."
Finally, although it is not required that Drumgo show he suffered more than a de minimis
. injury to maintain his excessive force claim, see Wilkins, 559 U.S. at 39 (notion that significant

17

injury is a threshold requirement for stating an excessive force claim rejected in Hudson, 503
U.S. at 7), the "absence of [a] serious injury" nevertheless remains relevant in an Eighth
Amendment inquiry. Wilkins, 559 U.S. at 40 (noting that the extent of injury may provide some
indication of the amount of force applied, and stating that "[ a]n inmate who complains of a 'push
or shove' that causes no discernible injury almost certainly fails to state a valid excessive force
claim") (citing Hudson, 503 U.S. at 9 (internal quotations omitted). Drumgo has failed to
produce any evidence showing a discernible injury. Moreover, in the capstun incident, the
injuries of which he complains are nothing more than the normal after effects associated with the
use of capstun. 5
Accordingly, the court finds that "the need for the application of force" was on account of
"the extent of the threat to the safety of staff and inmates" that Drumgo' s conduct posed, and that
it was done in a good faith effort to maintain or restore discipline. Brooks v. Kyler, 204 F.3d
102, 106 (3d Cir.2000) (citation omitted). A reasonable jury could not find that, based on the
circumstances, the force used in each instance was excessive. Accordingly, the court will grant
the defendants' motion for summary judgment as to both excessive force claims.

2.

Failure to Intervene

Drumgo contends that during the April 2014 incident, Moss failed to_ intervene and
protect him from the actions of Stevenson as he was being carried to the infirmary. During his
deposition Drumgo testified that Moss said nothing and h~ failed to intercede.

5

The Third Circuit has found that use of pepper-spray to subdue an uncooperative inmate,
after verbal attempts fail, does not rise to the level of excessive force. Passmore v. Janella, 528
F. App'x 144, 148 (3d Cir. 2013) (unpublished).
18

The Eighth Amendment requires prison officials to take reasonable measures to protect
prisoners from violence at the hands of other prisoners, as well as at the hands of guards or other
state actors. Farmer v. Brennan, 511 U.S. 825, 833 (1994). Thus, a corrections officer's failure
to intervene in a beating can be the basis for liability for an Eighth Amendment violation under

§ 1983 if the corrections officer had a reasonable opportunity to intervene and refused to do so.
Smith, 293 F.3d at 650. For liability to attach under§ 1983 for the failure to intervene in
another's use of excessive force, a plaintiff must show that: ( 1) the defendant failed or refused to
intervene when a constitutional violation took place in his or her presence or with his or her
knowledge; and (2) there was a realistic and reasonable opportunity to intervene. Id. at 651.
As discussed above, the record does not support Drumgo's claim that excessive force was
used against him during the April 2014 incident. In addition, the evidence of record does not
support a finding that Drumgo sustained a serious injury. The Third Circuit has found that a
plaintiffs failure to protect claim cannot proceed in the absence of a serious injury. See

Matthews v. Villella, 381 F. App' x 137, 139 (3d Cir..2010) (unpublished) (failure to protect
claims dismissed upon a finding that the plaintiffs alleged injuries did not rise to the level of
serious harm, and there were no allegations of a pervasive risk of harm from a single incident).
Nor does the evidence presented support a finding that Moss failed to intervene.
Drumgo's testimony is merely that Moss did not say anything, followed by Drumgo's legal
conclusion that Moss "failed to intercede." Finally, any injuries that Drumgo may have sustained
during the incident do not objectively rise to the level of a serious harm as required to establish a
constitutional violation. Moss cannot be held liable for failure to intervene and, therefore, the
court will grant the defendants' motion for summary as to this claim.

19

IV. CONCLUSION
For the above reasons, the court will grant the defendants' motion for summary
judgment. 6 (D.I. 45.)
An appropriate order will be entered.

___.h_~_?-__,_j_, 2017
Wilmington, Delaware

6

The court will not address the issue of qualified immunity given that summary judgment
is appropriate on other grounds.
20