Miller v. Fisher et al

Filing 28

MEMORANDUM. Signed by Judge James K. Bredar on 11/2/2015. (c/m 11/3/15)(krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DERROD MILLER, #426-175

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Plaintiff

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v.

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WARDEN SUZANNE FISHER
CO III SHANTE CLINTON
SERGEANT ARNOLD JOHNSON
CO V RAYMOND PERE
CO IV JOSEPH REED
CO II M. SHAPRED

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Civil Action No. JKB-14-2266

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Defendants
MEMORANDUM
Plaintiff Derrod Miller (“Miller”), a Maryland Division of Correction (“DOC”) prisoner
currently incarcerated at Jessup Correctional Institution (“JCI”), claims that on March 12, 2014,
while housed at the Maryland Reception Diagnostic & Classification Center (“MRDCC”), he
was assaulted by Officers Clinton, Johnson, Reed, and Shapred, and wrongfully charged with
institutional infractions relating to the incident.1 (ECF No. 1, pp. 3-7). Miller also claims
Officer Pere refused to investigate the incident.2 (Id., p. 5).
On March 24, 2015, this court dismissed Warden Fisher and denied summary judgment
as to the officers, permitting the officers to supplement their motion for summary judgment or
submit a status report in anticipation of trial. (ECF Nos. 20 and 21). Defendants have provided
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Miller also claims he was denied immediate medical care for injuries caused by the assault. (ECF No. 1
at 4). The uncontroverted medical record indicates that Miller was treated by medical staff for a laceration to his
face at 10:47 a.m. on the day of the incident, which occurred at approximately 9:50 a.m. (ECF No. 27-4 and ECF
No. 1 at 3). This allegation is unsupported by the record and will not proceed.
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Miller’s version of this incident to the contrary, the matter was investigated. Miller filed an administrative
complaint on the day of the incident, March 12, 2014. (ECF No. 1-1, pp. 4-5, ARP No. WCI0437-14). The
complaint was procedurally dismissed by WCI’s Institutional Coordinator, who noted on March 20, 2014, that
“[s]ince this case shall be investigated by IIU, no further action shall be taken within the [administrative remedy
procedure] [p]rocess.” (ECF 1-1, p. 4). Accordingly, defendant Pere shall be dismissed from this action.

a supplemental motion for summary judgment that includes declarations filed by defendants
Clinton, Reed, and Johnson. (ECF No. 27). Although unopposed, defendants’ supplemental
motion is insufficient to warrant granting summary judgment in their favor. For the reasons that
follow, Pere IS DISMISSED, defendants’ supplemental motion for summary judgment otherwise
IS DENIED, and Miller’s motion for appointment of counsel (ECF No. 25) IS GRANTED.
Standard of Review
Defendants’ motion relies on materials outside the pleadings, and is construed as a
motion for summary judgment, governed by Federal Rules of Civil Procedure 56(a). Pursuant to
Rule 56, the motion must be granted if defendants show that there is no genuine dispute as to any
material fact and they are entitled to judgment as a matter of law. In weighing defendants’
motion, this court must view the evidence in the light most favorable to plaintiff and draw all
inferences in his favor without weighing the evidence or assessing the witnesses’ credibility. See
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).
Because Miller is self-represented, his submissions are liberally construed. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, this court has an “affirmative obligation” to
prevent factually unsupported claims from proceeding to trial. Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774,
778–79 (4th Cir. 1993), and citing Celotex Corporation v. Catrett, 477 U.S. 317, 323–24
(1986)).
Background
In his verified complaint, Miller claims that at approximately 9:50 a.m. on March 12,
2014, while participating in out-of-cell exercise, handcuffed to a “black box” and wearing leg
irons, he stopped to talk to Officer Clinton about a dietary concern. Clinton had just found

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“some contraband” and was not receptive to conversation. (ECF No. 1, p. 3). Officer Reed, who
had been summoned by Clinton, entered the area and interrupted the conversation, stating “I
have more important shit to handle, take ya ass upstairs.” (Id.). When Miller protested, Reed
again responded rudely and “out of anger grabbed” Miller, slamming his head against a metal
door and stabbing Miller in the face with the knife that Clinton had found. (Id., pp 3-4). Miller
was then “stomped” by Officers Shapred, Johnson, Clinton, and two unknown officers. (ECF
No. 1, pp. 4-5).

Miller claims the assault continued while he waited in the medical area. (ECF

No. 1, p. 5).
Miller received an adjustment ticket for Rule Violation 101 (staff assault and battery) and
Rule Violation 400 (disobeying an order). (ECF No. 14-3, Notice of Inmate Rule Violation, p.
1). He provides documentation supporting his statement that the institutional charges placed
against him with regard to the incident were dismissed by a hearing officer on the basis that “the
Institution[al] Rep[resentative] does not wish to pursue the charges due to the lack of evidence
forwarded by MRDCC.” (ECF No. 1-3). Defendants have ignored the opportunity to clarify or
explain why these serious charges, including charges that Miller has committed assault or battery
on staff and disobeyed an order, were not pursued.
Defendants present a different version of events based on incident reports prepared by
Clinton, Reed, and other correctional officers. According to DOC personnel, on Wednesday,
March 12, 2014, at approximately 9:52 a.m., Clinton observed a metal homemade knife wrapped
in a white cloth fall from Miller’s pant leg.3 (ECF No. 14-2, Sergeant Shante Clinton’s Notice of
Incident Report). Clinton retrieved the weapon from the floor and reported her finding to Reed.
(ECF No. 14-3, Notice of Inmate Rule Violation, p. 2). While Reed and Clinton were discussing

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The court notes that when filing rules violation charges, prison authorities did not charge Miller with
possession of the knife. (ECF No. 14-3 at 3).

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what had been found, Miller abruptly confronted Reed and said, “Fuck you, I don’t want to hear
that shit, that ain’t my knife.” (Id.). Reed grabbed Miller by his waist chain and took him to the
ground (id.), and Corporal Tia Taylor used a radio to call a Signal 13 (Office Needs Assistance).
(ECF No. 1-4, Serious Incident Report, p. 4). Miller remained combative and resisted Reed’s
order to stop moving. (ECF No. 14-3, Notice of Inmate Rule Violation, p. 2). During the
struggle, Miller attempted to take the knife from Reed, which resulted in cuts to Reed’s fingers.
(Id.).
Another inmate, Tavon Thompson, #421-159, ran towards the scuffle, prompting Clinton
to restrain Thompson. (Id.). Officers Don Marcano and Tameka Cobb arrived on the scene and
helped subdue both Miller and Thompson. (Id.). At approximately 10:47 a.m., Miller was taken
to the medical department where he was evaluated, treated, and discharged by Registered Nurse
Sarah Ross. (Id.). Ross diagnosed and treated Miller for a scratch to the right side of his face.
(ECF No. 14-5, Office of Inmate Health Services Form).

Defendants Clinton, Reed, and

Johnson have submitted affidavits supporting their version of events. (ECF Nos. 27-1, 27-2 and
27-3).
Analysis
Whether force used by prison officials was excessive is determined by inquiring if Aforce
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. Whitley v. Albers, 475 U.S. 312, 321 (1986). The absence of significant injury alone

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is not dispositive of a claim of excessive force. Wilkens v. Gaddy, 599 U.S. 34 (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. at 38.
Miller states that he was not in possession of contraband and while attempting to ask
Clinton a question concerning a dietary problem was interrupted by Reed, then grabbed and
slammed to the ground, incurring injury. Miller’s complaint was written under penalty of
perjury. His allegations, combined with the fact that he was never charged with possession of
the contraband (a knife) and additional rules violations filed against him were not pursued, lend
some credence to his allegation of excessive use of force and are sufficient to warrant further
pursuit of his claim.
Accordingly, the supplemental motion for summary judgment filed on behalf of
defendants Clinton, Johnson, Reed, and Shapred will be denied.

Defendant Pere will be

dismissed from this action, as will Miller’s claim regarding the delay in providing medical
treatment for his injury. Miller’s motion for appointment of counsel will be granted. A separate
order, setting further deadlines, follows.

Date: November 2, 2015

______________/s/____________________
James K. Bredar
United States District Judge

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