McCall v. Warden

Filing 23

MEMORANDUM OPINION filed. Signed by Judge Richard D Bennett on 7/2/2013. (c/m 7/3/2013)(ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JEREMIAH McCALL

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Plaintiff

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v

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WARDEN, et al.

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Defendants

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Civil Action No. RDB-12-2915

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MEMORANDUM OPINION
Pending is Defendants’ Motion to Dismiss or for Summary Judgment. ECF No. 21.
Plaintiff was advised of his right to oppose the motion, and of the consequences of failing to do
so (ECF No. 22), but has failed to file anything further. The Court finds a hearing in this matter
unnecessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, Defendants’
motion, construed as a Motion for Summary Judgment, shall be GRANTED.
Background
Plaintiff Jeremiah McCall (“McCall”), a self-represented prisoner incarcerated at North
Branch Correctional Institution (NBCI), alleges he was severely beaten by Defendants, who are
correctional officers, when he was forcibly extracted from his cell. ECF No. 1 and 3. McCall
states that on July 14, 2012, at approximately 6:00 p.m., Officer Goodrich was making rounds on
the housing unit where McCall was assigned, passing out ice to inmates. Goodrich passed out
ice to the whole top tier, but as he walked past McCall’s cell stated he was not getting ice. ECF
No. 3 at Attachment 1 (hereinafter ECF No. 3-1) at p. 2. In response to Goodrich’s refusal to
provide McCall with ice, McCall states he held the slot in his cell door open in order to receive
an explanation. McCall claims Goodrich simply stated he wasn’t getting ice because he said

McCall was not getting it. Id. McCall then alleges the lack of an explanation “unfortunately . . .
lead (sic) to a cell extraction.” Id.
McCall states the cell extraction took place later the same day between 11:00 p.m. and
12:15 a.m. “due to a security breach.” ECF No. 3-1 at p. 3. McCall states he had positioned
himself near the back of the cell, near the window, in order to avoid the effects of the mace
sprayed in the cell. He claims Officer Friend entered the cell first holding a shield and proceeded
to knock McCall to the floor, stating he was going to die. Id. McCall states that “seconds later”
he was being severely beaten by three to four officers who delivered punches and kicks to his
face and slammed McCall on the floor. Id. After he was handcuffed behind his back, McCall
states he was escorted off the tier while being “severely choked.” Id.
McCall was taken to the middle of the housing unit to have pictures taken by Lt. Smith
and to be examined by a nurse. Id. at p. 4. McCall claims the nurse only took his heart rate and
“seconds later” stated that McCall was fine. Id. While in the presence of the nurse, McCall
alleges he was being choked and punched and threatened that he was “going to die.” Id.
McCall was then escorted to the back of the property room for the housing unit, where
his cellmate Lamont Jackson was being strip-searched. In the presence of Jackson, McCall
claims Officers Mackral and Friend held each of his arms while Officer Keefe struck him two to
three times with his knee against the left side of his face. McCall alleges Keefe made statements
while hitting him such as, “who’s your Daddy” and “I bet you like the way this feel[s] don’t
you.” ECF No. 3-1 at p. 4. Upon completing Jackson’s strip search, McCall was strip searched
and given only his boxers to wear. McCall was then handcuffed behind his back again and
escorted to the showers. Id.

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During the escort to the showers, McCall alleges he was again being “severely choked,”
causing him to faint from lack of oxygen. ECF No. 3-1 at p. 5. McCall claims either Lt. Smith
or Lt. Cross ordered for the shower to be “hands on” meaning no water was used; rather, McCall
was simply beaten about the body and the face and rammed up against the wall. Id. McCall
states he was escorted from the shower and again choked “from time to time” until he was placed
in a disciplinary confinement cell and released from his handcuffs. Id.
Upon entering the cell McCall claims he went to the sink to wash the mace off of his face
and body. He states he was confined in the cell with no mattress, no clothes, and no hygiene
items from July 14, 2012 through July 17, 2012. He claims the only item of clothing he was
allowed, a pair of boxers, were covered in mace. Additionally, McCall claims he was refused
access to all mail. As relief, McCall seeks monetary damages as well as institution of criminal
charges against Defendants.1
Defendants assert that the cell extraction was prompted by McCall and his cellmate,
Lamont Jackson, barricading their cell. ECF No. 21 at Ex. 1, pp. 2, 8 and 9. McCall and
Jackson had breached the security slot, barricaded the slot with a mattress, and tied a jumpsuit
and bed sheet to the outside handle of their cell door. Id. Attempts were made to gain McCall
and Jackson’s compliance with being restrained, however, both men refused. Lt. Cross removed
the jumpsuit and bed sheet from the cell door; Officers Kennell and Penrod used an extension
device to open the security slot and deployed a burst of pepper spray. Id. McCall was again
ordered to submit to handcuffing and again refused to comply; therefore, the Use of Force team

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McCall’s request for institution of criminal charges must be denied as he does not have a constitutional right to
insist on a criminal prosecution. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (citizens lack standing to
contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with
prosecution); Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir.1988) (no right to force state to prosecute others under
equal protection clause).

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entered the cell. Id. Officer Keefer took control of McCall’s right arm while Sgt. Gordon took
control of his left arm and applied handcuffs. Gordon and Officer Friend stood McCall up and
escorted him to the medical room for evaluation following exposure to a chemical agent. Id.
McCall’s gait was noted as steady, speech was clear, and no signs of respiratory distress or injury
were noted, nor were they voiced by McCall. Id. at p. 24.
On July 17, 2012, McCall was issued a Notice of Infraction charging him with violating
Rules 116 (possess, misuse, tamper with, damage or destroy security equipment . . . fire
suppression equipment or alarm), 312 (interfere with or resist the performance of staff duties to
include a search of a person, item, area or location), 400 (disobey an order), 402 (being in a
location without authorization), and 405 (demonstrate disrespect or use vulgar language). ECF
No. 21 at Ex. 1, pp. 26 – 28. McCall was put on administrative segregation pending a formal
hearing on the charges and refused to provide investigating officers with a statement concerning
the events of July 14, 2012. Id. at p. 10.
On July 19, 2012, McCall filed an administrative remedy (ARP) claiming he was
severely beaten during the July 14, 2012 cell extraction which was dismissed on July 23, 2012,
due to a pending investigation. Under Division of Correction Directive 185-003.VI.N.4, when a
matter is referred to the Maryland Department of Public Safety and Correctional Services
Internal Investigation Unit for investigation, an ARP concerning the same events is subject to
dismissal. A formal disciplinary hearing was held regarding the Notice of Infraction issued to
McCall on August 2, 2012. ECF 21 at Ex. 1, pp. 29 – 34. McCall refused to attend the hearing
or otherwise participate and he was found guilty. Id. at pp. 30 and 34. The Warden at NBCI
affirmed the guilty finding on August 30, 2012. Id. at pp. 35 and 36.

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STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A material fact
is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue over a material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In
considering a motion for summary judgment, a judge=s function is limited to determining
whether sufficient evidence exists on a claimed factual dispute to warrant submission of the
matter to a jury for resolution at trial. Id. at 249.
In undertaking this inquiry, this Court must consider the facts and all reasonable
inferences in the light most favorable to the nonmoving party. Ricci v. DeStefano, 129 S. Ct.
2658, 2677 (U.S. 2009); Scott v. Harris, 550 U.S. 372, 378 (2007). However, this Court must
also abide by its affirmative obligation to prevent factually unsupported claims and defenses
from going to trial. Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993). If the evidence
presented by the nonmoving party is merely colorable, or is not significantly probative, summary
judgment must be granted. Anderson, 477 U.S. at 249-50. On the other hand, a party opposing
summary judgment must “do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986); see also In re Apex Express Corp., 190 F.3d 624, 633 (4th Cir. 1999). This Court has
previously explained that a “party cannot create a genuine dispute of material fact through mere
speculation or compilation of inferences.” Shin v. Shalala, 166 F. Supp. 2d 373, 375 (D. Md.
2001) (citations omitted).

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Analysis
Whether force used by prison officials was excessive is determined by inquiring if “force
was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6 – 7 (1992). This Court must
look at the need for application of force, the relationship between that need and the amount of
force applied; the extent of the injury inflicted; the extent of the threat to the safety of staff and
inmates as reasonably perceived by prison officials; and any efforts made to temper the severity
of the response. See Whitley v. Albers, 475 U.S. 312, 321 (1986). The absence of significant
injury alone is not dispositive of a claim of excessive force. See Wilkens v. Gaddy, __ U.S. __,
130 S. Ct. 1175 (2010). The extent of injury incurred is one factor indicative of whether or not
the force used was necessary in a particular situation, but if force is applied maliciously and
sadistically liability is not avoided simply because the prisoner had the good fortune to escape
serious harm. Id.
The undisputed record evidence2 establishes that McCall and his cell mate had barricaded
the door of their cell and when asked what the problem was, McCall responded with vulgarity.
ECF No. 21 at Ex. 1, pp. 2, 26, and 30. When provided with subsequent opportunities to comply
with orders to be restrained, McCall remained recalcitrant and taunted officers to “do what you
have to do” after being warned that force would be used if he did not comply with orders. Id at
p. 2. The extraction team removed the barricade, applied pepper spray, and again asked for
compliance with orders, but neither prisoner complied. Id. at Ex. 1, pp. 2 – 3. The officers then
forced McCall to the floor using a shield and restrained him while he offered physical resistance.
Id. McCall was then seen by a nurse who observed no physical injuries and noted no respiratory
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Because there is no evidence that the video recording of the cell extraction was made available to McCall for
viewing prior to its introduction as an exhibit in this case, it has not been reviewed or considered by this Court in the
context of this opinion. See ECF No. 21 at Ex. 2.

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distress resulting from the pepper spray. Id. at Ex. 3. After McCall was strip searched, he was
given a shower. Id. at Ex. 2.
The record establishes there was a need for force to restore discipline and only that force
which was necessary was utilized, resulting in no injury to McCall. Thus, there is no evidence of
an Eighth Amendment violation and Defendants are entitled to summary judgment in their favor.
A separate Order granting Defendants’ Motion for Summary Judgment and entering judgment in
their favor in accordance with this Memorandum Opinion follows.

July 2, 2013
Date

____________/s/_____________________
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

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