Chase v. U.S. District Court of Maryland et al

Filing 31

MEMORANDUM. Signed by Chief Judge Catherine C. Blake on 2/25/2016. (c/m 2/25/16 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WARREN CHASE #326-514,
:
Plaintiff
:
v.

Civil Action No. CCB-14-3150
:

U.S. DISTRICT COURT OF MARYLAND,
et al.,
Defendants

:
:

MEMORANDUM
Procedural History
This 42 U.S.C. § 1983 civil rights action was filed by plaintiff Warren Chase (“Chase”), a
Maryland Division of Correction prisoner incarcerated at North Branch Correctional Institution
(“NBCI”). Portions of the complaint were dismissed1 and the case proceeded against Officers
Mallow, Marchinke and Rounds based on allegations concerning a verbal and physical assault,
placement in a cell lacking basic necessities, and failure to provide medical care for significant
resultant injuries to his left hip, spine and right knee. ECF No. 1 at pp. 1-2. Defendants, through
counsel, filed a motion to dismiss or, in the alternative motion for summary judgment (ECF No.
15) which was construed as a motion for summary judgment. The motion was granted with
regard to the claim of denial of medical treatment2 and verbal assault, but otherwise denied
without prejudice pending supplementation. (Mem. and Order, ECF Nos. 20 and 21). Following
1

Several allegations raised in the complaint were dismissed without prejudice under 28 U.S.C. § 1915(g). See ECF
No. 2, pp. 1-2, Order of October 14, 2014.
2

In dismissing this claim, the court found that at the time of physical examination by NBCI Physician Assistant
Janette Clark, no evidence supported Chase’s claim that serious injury had occurred. ECF No. 15-2, pp. 12-13, 15
and 50. Indeed, Chase could not “define a specific back injury.” Id., p. 52. Chase provided no indication that he
actually sought medical treatment for injury after the alleged assault; because he failed to establish a denial of
medical care following the September 8, 2014 incident, his claim of denial of medical injury was dismissed. Mem.,
ECF No. 20 at 3-4.

supplementation of the dispositive pleading

(ECF No. 22), Chase’s claim concerning the

conditions of his new cell were dismissed and defendants Warren Mallow, Timothy Marchinke
and Dean Rounds, Jr. were granted a final opportunity to submit video evidence referenced in the
Internal Investigation Unit report they rely upon in support of their defense. (Mem. And Order,
ECF Nos. 2 and 27). Defendants have submitted the video.3 (ECF No. 30). For reasons set
forth herein, summary judgment will be GRANTED in their favor.
Background
The parties do not dispute that on September 8, 2014, Chase was escorted from one cell
to another by Officer Marchinke and Officer Mallow, with Officer Rounds following while
pushing a cart with Chase’s property. ECF No. 15-2, Department of Public Safety and
Correctional Services (“DPSCS”) Internal Investigative Unit Report – 12-35-00871 I/C, p. 12.
While Chase believes the move was punishment (ECF No. 1, p. 2), defendants assert that the
move was made to accommodate a new prisoner transferred to NBCI. ECF No. 15-2, p. 12.4
Defendants state that during the transfer, Chase stopped walking and refused to continue
on by dragging his feet. ECF No. 15-2, p. 12. In response, Marchinke and Mallow picked him
up by his arms and carried him the rest of the way. Id. No Use of Force Report or Serious
Incident Report was prepared following this encounter. Id., p. 15. Chase, however, claimed that
he was verbally5 and physically assaulted by defendants during the cell transfer, resulting in
significant injury. ECF No. 1, pp. 1-2. As a result of this claim, the Department of Public Safety

3

Case Manager Randy Durst has submitted a Declaration stating that Chase twice viewed the video in his presence
and in its entirety on December 29, 2015. (ECF No. 30-1). Chase has filed no opposition to this court’s
consideration of the video evidence.
4

The pagination cited herein reflects the pagination assigned by the court’s electronic docketing system.

5

Verbal abuse, without more, does not state a cognizable constitutional claim. See Collins v. Cundy, 603 F.2d 825
(10th Cir. 1979); see also Pink v. Lester, 52 F.3d 73, 75 (1995) (A[N]ot all undesirable behavior by state actors is
unconstitutional.@). This claim was dismissed in the December 10, 2015 memorandum. (ECF No. 26).

2

& Correctional Services Internal Investigation Unit (“IIU”) initiated an investigation, and
obtained video of the event. ECF No. 15-2, p. 8.
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. Whitley v. Albers, 475 U. S. 312, 321 (1986). The absence of significant injury alone
is not dispositive of a claim of excessive force. Wilkins v. Gaddy, 559 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.
NBCI Physician Assistant Janette Clark evaluated Chase two months after the alleged
incident and found no evidence that injury had occurred. ECF No. 15-2 at pp. 12-13, 15 and 50.
At the time of the physical examination, Chase could not “define a specific back injury.” Id., p.
52. Further, Chase provides no indication that he actually sought medical treatment for injury
following the September 8, 2014 incident.
Defendants’ statements during the IIU investigation are verified, and defendants have
provided affidavits or declarations specific to this litigation. ECF Nos. 22-1, 22-2, 22-3. In

3

response, Chase has submitted an affidavit countering defendants’ version of events.6 ECF No.
24, pp 1-2.
Although grainy, the video evidence supports the IIU determination that defendants’
actions were justified. Chase emerged from his cell with hands cuffed behind his back, and
immediately began to sink to the ground. Two officers grabbed him below the shoulders and
half-carried, half-dragged him down the corridor. During this event, Chase’s arms were behind
his back, held rather high in the air, and his head was at or below his waist. The pace was not
hurried. The officers do not appear hostile or concerned about the procedure. A third officer can
be seen walking behind at a similar pace. While such a “carry” may have been unpleasant, the
video taken of the event does not suggest in any way that the officers acted with malice or
sadistically tried to cause injury. The amount of “force” used to transport Chase was minimal
and was tempered.
Chase has not established a violation of the Eighth Amendment and defendants are
therefore entitled to summary judgment. A separate order follows.

February 25, 2016
Date

___________/S/________________
Catherine C. Blake
United States District Judge

6

Chase’s discussion of other incidents unrelated to the September 8, 2014 incident, contained in ECF No. 25, will
not be addressed in the context of this lawsuit.

4