Cumbo v. Graham et al

Filing 24

MEMORANDUM. Signed by Judge J. Frederick Motz on 3/10/2017. (c/m 3/10/17)(kr2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

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ALTON W. CUMBO, #41228
Plaintiff
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Civil Action No. 1FM-15.3S74
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RICHARD D. DOVEY,
LIEUTENANT STEVEN THOMAS,
CO II COREY SWISHER,
CO II JEREMY HARMAN,
CO II MIGUEL REYES-ZETINA,

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MEMORANDUM
Pending is Alton W. Cumbo's complaint filed pursuant to 42 U.S.C.

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1983. Defendants

have filed an unopposed motion to dismiss or, in the alternative, motion for summary judgment
(ECF No. 19).1 After considering

the pleadings,

exhibits,

and applicable

law, the court

determines that a hearing is unnecessary to resolve the issues, see Local Rule 105.6 (D. Md.
2016), and the court will grant defendants'

motion, which it will construe as a motion for

summary judgment.
BACKGROUND
Alton W. Cumbo is presently incarcerated at Eastern Correctional Institution?
that on October 2,2015,

He claims

correctional officers at the Maryland Correctional Training Center in

Hagerstown, Maryland ("MCTC") assaulted him, used pepper spray on him, and denied him
medical care. ECF NO.1.

He alleges Officers Harman Swisher, and Reyes-Zetina kicked and

punched him when they escorted him from the inmate dining hall to the 1-1 Receiving and J.D.

I Pursuant to the dictates of Roseboro v. Garrison, 528 F.2d. 309 (4th Cir. 1975), Cumbo was notified that he was
entitled to file an opposition with declarations and supporting materials. ECF No. 21.

2

See Maryland Inmate Locator, http://www.dpscs.state.md.us/inmate/search.do?searchType=detail&id=318390.

area. Cumbo claims he was thrown into a cell for approximately five minutes until Lieutenant
Thomas ordered the door opened, and Cumbo was taken for a medical evaluation. Cumbo claims
that while he was being escorted for medical evaluation, he saw Warden Richard D. Dovey, and
attempted to inform him of what had happened. ECF NO.4 at 4. Cumbo alleges Dovey just
walked off without speaking to him. Id. Cumbo alleges he could not walk the remainder of the
way and arrived at the medical unit on a stretcher. Id. He claims that when he arrived at the
medical unit, he was denied medical attention for the pepper spray in his eyes and for his leg
injury. Id.

Cumbo claims he was transferred to Western Correctional Institution ("WCI") in

Cumberland, Maryland where he was denied medical attention.3 He further alleges that he is
being "targeted." because he is a member of the Bloods and assaulted a correctional officer. ECF
No. 1 at 4. Cumbo states that on an unspecified day he was denied medical attention and a
decontamination shower by Officer N. Elllis and Lt. R. Carder.4 ECF NO.1. at p. 4. As relief, he
asks for immediate transfer to a correctional facility in a different region and $5,500,000.00
damages. (ECF I, p. 3; ECF 4, p. 3).5
Cumbo filed this complaint on November 4, 2015, against J.T. Butler and Warden
Richard Graham. ECF 1. On November 6, 2015, the court ordered Cumbo to supplement the
complaint to name the individuals involved.

ECF NO.3.

On November 30, 2015, Cumbo

submitted the court directed supplement to name Warden Richard Dovey, Steven Thomas, Corey
Swisher, Jeremy Harman, Miguel Reyes-Zetina, and Ronald B. Brezler as defendants. ECF No.
4.

On December 2, 2015, the court dismissed Graham, Butler, and Brezler because the

, Cumbo does not name any defendants who were correctional staff or medical providers at WCI.
4

Cumbo does not name Ellis or Carder as defendants and the claims against them shall not be considered.

, Cumbo does not explain how he is "targeted."

He does not allege facts to show he is in danger.

2

complaint contained no claims against them, and added Steven Thomas, Corey Swisher, Jeremy
Harman, and Miguel Reyes-Zetina as defendants.

ECF NO.5.

DEFENDANTS' RESPONSE
Defendants

have submitted

declarations,

verified

exhibits.

ECF No.

19.6

This

information reveals that on October 2,2015, at 6:30 p.m., Cumbo assaulted correctional Officer
Christopher Grubbs at MCTC, after he was caught taking cookies from the inmate dining room.
ECF No 19-4 (investigation records) at pp. 26, 29, 30, 31, 32, 33, 37. Cumbo was in the chow
line when Officer Lauren Baker ordered him to give up the cookies.

After Cumbo laughed,

stuffed a cookie in his mouth, and turned to walk away, Baker motioned to Grubbs' to stop him.
Cumbo shoved Grubbs and punched him in the face with closed fists.

Grubbs called for

assistance. ECF No. 19-4; 19-5 (Dec!. of Lauren Baker); 19-7 (Dec!. of Christopher Grubbs); 198 (Dec!. of Brandon Roy). Officer Brandon Roy was in the inmate dining room responded.
Cumbo swung at Roy twice with a closed fist. ECF No. 19-8. Roy grabbed Cumbo's right wrist
and placed it behind his back using an arm bar hold while Cumbo tried to pull away. Roy gave
Cumbo several direct orders to stop and get on the floor, but Cumbo refused to comply. ld. As
Roy struggled to gain control of Cumbo, Grubbs administered a short burst of pepper spray to
Cumbo's

facc.7 Officers Harman and Swisher arrived on the scene, handcuffed Cumbo, and

escorted him to the Receiving and I.D. area. ld; ECF No. 19-9 (dec!. of Jeremy Harman); ECF
No. 19-10 (dec!. of Corey Swisher).

During the escort, Cumbo stated "I'm a blood, do you

know who 1 am? Don't touch me." ECF No 19-4 at pp. 20, 28. Harman and Swisher state that
during the escort Cumbo became combative and refused to walk on his own.

ECF No. 19-9;

There is no evidence that defendants showed the video recording to Cumbo. Consequently, the court shall not
consider the video filed in this case.

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Cumbo did not name Grubbs or Roy as defendants in this case.

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ECF No. 19-10. He was escorted to Receiving and ID where he was placed in a cell without
further incident. Id. Harman and Swisher attest that at no time did they or any other correctional
officer in his presence assault Cumbo. Id.
Officer Reyes-Zetina was assigned to J-1 post in the Receiving and I.D. area and did not
escort Cumbo. ECF No. 19-11 (dec!. of Steven Thomas). Reyes-Zetina was not asked to assist in
escorting Cumbo and did not assist in placing him in the holding cel!. Id. at ~4, ~5; ECF No. 1912 (assignment worksheet). ECF 19-13 ~ 4, (dec!. of Miguel Reyes-Zetina). Reyes-Zetina states
in his declaration that he was not a participant or a witness to any beating, harassment or
retaliatory action against Cumbo in the Receiving and I.D. area on October 2, 2015. ECF No. 1913.
At approximately

6:30 p.m., Officers Joshua Vardy and Eric Quackenbush

escorted

Cumbo to the hospital infirmary for medical treatment without incident. ECF No. 19-4 at pp. 6,
11, 13, 15, 18; ECF No. 19-14 (dec!. of Joshua Vardy); ECF No. 19-15 (dec!. of Eric
Quackenbush).
Kelly Bickford, R.N. evaluated Cumbo shortly thereafter.

ECF No. 19-4. Her report is

dated October 2, 2015, 6:33 p.m. and was signed at 6:50 p.m.

Id. She observed that Cumbo

walked with a steady gait and without assistance. His vital signs were within normal limits, he
was alert, and his lungs were clear. ECF No. 19-4 at p .. 34.
abrasions, or contusions.
physical distress.

Id.

Bickford observed no bruising,

She noted Cumbo showed no signs of physical trauma and or acute
Cumbo walked back to his housing unit escorted by officers. Id.

Photographs were taken of Cumbo, Roy, and Grubbs.8 Id. at p. 13. Cumbo's

property was

packed and inventoried and he was transported to WCI. Id. at p. 13.
• Defendants submitted black and white photographs with little contrast and of little evidentiary value. ECF No. t 94 at pp. 37-38.

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Lt. Brian Reed, completed the Division of Correction's

investigation of the incident.

Reed reviewed the reports of the incident and concluded that the force used (spontaneous,
chemical agent, defensive holds) was applied in good faith for the purpose of self-defense due to
an active assault by Cumbo, and the force was applied for the purpose of gaining control of a
noncompliant

inmate. ECF No. 19-4 at p. 15. Reed indicated that due to the nature of the

incident, Cumbo was transferred immediately to WCI.9 On October 3, 2015, Reed contracted Lt.
Miller at WCI, and requested that Cumbo be given the opportunity to provide a written statement
which Cumbo declined to do. Id.; ECF No. 19-4 at p. 24.
Cumbo filed ARP #WCI-1996-15 concerning the October 2, 2015 incident on November
17, 2015. ECF No. 19-6. The ARP was dismissed on November 18, 2015 for procedural reasons
per DCD 185-003. VI.N.4. since the alleged incident was being examined by the lID Id. IO
Plaintiff did not file a Headquarters' appeal or a grievance to the Inmate Grievance Office. ECF
No. 19-18, 19-19.

On November

16, 2015, an Application

for Statement of Charges was

prepared and filed in the District Court of Maryland for Washington County, charging Cumbo
with Second Degree Assault of Department of Corrections employee Christopher Grubbs. ECF
No. 19-4 at p. 42-44."
STANDARD OF REVIEW
Summary judgment is proper when the moving party demonstrates, through "particular
parts of materials

in the record,

including

information, affidavits or declarations,

depositions,

stipulations

documents,

..., admissions,

electronically

interrogatory

stored

answers, or

A written comment on the notice of disciplinary hearing written as a result of the incident indicates Cumbo was
transferred to WCI at 8:30 p.m. on October 2, 20 I 5. ECF No. 19-4 at p. 25. Reed does not explain why the transfer
was made to WCI. The court takes note that WCI is a higher security facility than MCTC.

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Defendants did not file a copy of the 110 report.

II The case is not listed on the Maryland
inquirySearch.j is.

Judiciary

website. http://casesearch.courts.state.md.us/casesearch!

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other materials," 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(a), (c)(I)(A); see Baldwin v. City of
Greensboro,

714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment

demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to
the nonmoving party to identify evidence that shows that a genuine dispute exists as to material
facts. See Celotex v. CaIre II, 477 U.S. 317 (1986). The existence of only a "scintilla of evidence"
is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). Instead, the evidentiary materials submitted must show facts from
which the finder of fact reasonably could find for the party opposing summary judgment.
ruling on a motion for summary judgment,

Id. "In

this Court reviews the facts and all reasonable

inferences in the light most favorable to the nonmoving party." Downing v. Baltimore City Bd. of
School Comm'rs, No. RDB 12-1047,2015

WL 1186430, at *1 (D. Md. Mar. 13,2015) (citing

Scoll v.Harris, 550 U.S. 372, 378 (2007».
Defendants have filed copies of verified documents and declarations with their pleadings.
The court may consider a wider range of documents when it treats a motion to dismiss as a
motion for summary judgment, which it may do pursuant to Fed. R. Civ. P. 12(d). See Syncrude
Canada Ltd. v. Highland Consulting Group, Inc., 916 F. Supp. 2d 620, 623 (D. Md. 2013).
When the court does so, "[aJII parties must be given a reasonable opportunity to present all the
material that is pertinent to the motion." Fed. R. Civ. P. 12(d). Notably, "the Federal Rules do
not prescribe that any particular notice be given before a Rule 12 motion is converted to a Rule
56 motion." Ridgell v. Astrue, DKC-1O-3280, 2012 WL 707008, at *7 (D. Md. Mar. 2, 2012).
Thus, this requirement

"can be satisfied when a party is 'aware that material outside the

pleadings is before the court.' " Walker v. Univ. of Md. Med. Sys. Corp., No. CCB-12-3151,

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2013 WL 2370442, at *3 (D. Md. May 30, 2013) (quoting Gay v. Wall, 761 F.2d 175, 177 (4th
Cir. 1985)). Though the court "clearly has an obligation to notify parties regarding any courtinstituted changes in the pending proceedings, [it] does not have an obligation to notify parties of
the obvious." Laugh/in v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998). Here,
defendants designate their motion as a "motion to dismiss, or in the alternative, motion for
summary judgment." Cumbo was provided the opportunity to dispute these exhibits with verified
exhibits and affidavits, although has chosen not to file a reply.
DISCUSSION
Defendants seek dismissal of the complaint against Lieutenant Thomas and Warden
Dovey for failure to state a claim upon which relief may be granted and because they did not
personally participate in the matters alleged.

Defendants Swisher, Harman, and Reyes-Zetina

assert they are entitled to summary judgment because Cumbo has failed to state an Eighth
Amendment claim of excessive use of force.
A. Claims against Dovey and Thomas
Cumbo's only allegation against Warden Dovey is that he failed to stop to talk to him
during Cumbo's

escort from the dining hall. Cumbo does not assert that Dovey personally

participated in the use of force incident or the incidents which allegedly followed. Cumbo's sole
mention of Lieutenant Thomas is that he ordered the cell door opened for Cumbo to be taken to
the medical unit.
A claim under 42 U.S.C.

S

1983 requires that: (1) the plaintiff suffered a deprivation of

"a right secured by the Constitution and laws" of the United States, and (2) the act or omission
causing the deprivation was committed by a person acting under color of law. West v. Atkins, 487
U.S. 42, 48 (1988). Cumbo does not specify what federal law or constitutional guarantee either

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Dovey or Thomas allegedly violated by these actions, and none is apparent from the record.
Accordingly, no cognizable claim is stated against Dovey or Thomas.
To the extent Cumbo intends to confer liability on Dovey or Thomas based on their
supervisory roles, his claims are also unavailing. A state official may not be held liable under 42
U.S.C.

S

1983 unless it is "affirmatively shown that the official charged acted personally in the

deprivation of the plaintiffs rights." Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th. Cir. 1977); see
also Monell v. Dep't of Social Servs of New York, 436 U.S. 658, 690-92 (1978). There is no
vicarious liability (respondeat superior) in

S

1983 cases against government officials for the acts

of their subordinates. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985); Vinnedge, 550 F.2d at
928. In order for a supervising official to be held liable under

S

1983 under a theory of

supervisory liability, a plaintiff must establish that: (1) the supervisor knew that the subordinate
"was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury";
(2) the supervisor's "response showed deliberate indifference to or tacit authorization
alleged offensive practices";

and (3) there was "an affirmative

of the

causal link" between the

supervisor's "inaction and the constitutional injury." King v. Rubenstein, 825 F.3d 206, 224 (4th
Cir. 2016) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). Cumbo's allegations are
insufficient to hold either Dovey or Thomas legally culpable on this basis. Accordingly, the
claims against Dovey and Thomas will be dismissed with prejudice.
B. Claims against Swisher, Harman, and Reyes-Zetina
A convicted inmate's claim of use of excessive physical force is examined in the context
of the Eighth Amendment's prohibition against cruel and unusual punishment. See Whitley v.
Albers, 475 U.S. 312, 319-21 (1986); see also Hudson v. McMillan, 503 U.S. 1, 7-9 (1992).
Eighth Amendment analysis asks whether the prison officials "acted with a sufficiently culpable

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state of mind (subjective component) and whether the deprivation suffered or injury inflicted on
the inmate was sufficiently serious (objective component)."

Williams v. Benjamin, 77 F.3d 756,

761 (4th Cir. 1996). In a claim for excessive application of force, a claimant must meet a heavy
burden to satisfy the subjective component-that

correctional officers applied force "maliciously

and sadistically for the very purpose of causing harm," rather than "in a good-faith effort to
maintain or restore discipline." Whitley, 475 U.S. at 320-21 (internal quotation marks omitted).
To satisfy the subjective component, a claimant must show that a prison official acted with a
"sufficiently culpable state of mind." Wilson v. Seiler, 501 U.S. 294, 297 (1991
In determining whether prison officials have acted maliciously and sadistically, a court
should balance I) the need for the application of force; 2) the relationship between the 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 of a forceful response." Whitley, 475 U.S. at 321. Not
every malevolent touch by a prison guard, later determined in the calm of a judge's chambers to
be gratuitous, gives rise to a federal cause of action. See Hudson, 503 U.S. I, 6 (1992). In
Wilkins v. Gaddy, 559 U.S. 34 (2010), the Supreme Court stated: "This is not to say the 'absence
of serious injury' is irrelevant to the Eighth Amendment inquiry." 559 U.S. at 37 (quoting
Hudson v. McMillian, 503 U.S. I, 7 (1992)). But, it is a factor in applying and reviewing the
Eighth Amendment analysis. /d. Thus, a court must look at "the nature of the force rather than
the extent of the injury." Wilkins, 559 U.S. at 34.
In this case, there was a brief, tempered use of force by Officers Grubbs and Roy to stop
Cumbo's attack on them. Defendants Swisher, Harman, and Reyes-Zetina were not involved in
the dining room use of force. The record shows Cumbo assaulted Officer Grubbs, attempted to
punch Officer Roy, and then refused their direct orders to stop. Officer Grubbs applied a short

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burst of pepper spray to gain control of the situation.

At that point Cumbo was handcuffed and

taken to the medical unit for treatment. There is nothing to suggest that the force was applied
with malicious or sadistic intent.
Cumbo next alleges he was attacked by Swisher, Harman, and Reyes-Zetina in the J.D.
and Reception area. Cumbo provides evidence in support other than his unverified allegations.
Defendants

deny assaulting

Cumbo

or refusing

him medical

care and have submitted

testamentary and verified evidence in support. Defendants' unrefuted records indicate that the
dining room incident occurred at approximately 6:30 p.m. Cumbo was escorted to the J.D. and
Reception area then to the medical office immediately afterwards. The nurse who examined
Cumbo found no signs of injury or acute distress. She also recorded that Cumbo entered and
exited the medical area walking on his own accord. These medical findings disprove Cumbo's
allegations that he had just been kicked and punched, was unable to walk to the medical area,
and needed transport on a stretcher.

Cumbo provides no medical records or sick call slips to

substantiate his claims of injury. Of import, Cumbo provides no evidence to refute Swisher,
Harman, and Reyes-Zetina's

declarations they did not assault Cumbo or witness anyone else do

so.
Plaintiff, the non-movmg

party, must establish the existence of a genu me issue of

material fact by presenting evidence on which a fact-finder could reasonably find in his favor.
Plaintiff has failed to submit any evidence to support his claim, or to put the material fact in this
case- the use of force against plaintiff- in dispute. See generally, Gray v. Spillman, 925 F.2d 90,
(4th Cir. 1991). Although the non-moving

party may rely on a verified complaint

when

allegations therein are based on personal knowledge, see Williams v. Griffin, 952 F.2d 820, 823
(4th Cir. 1991) plaintiffs

complaint is not verified. Accordingly, Swisher, Harman, and Reyes-

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Zetina area entitled to summary judgment in their favor as a matter of law.
CONCLUSION
For the reasons stated in this memorandum, the court will grant defendants' motion to
dismiss or, in the alternative, for summary judgment. ECF No. 19. A separate order follows this
memorandum.

A~,rJJOZ
J/Frederick Motz
United States District Judge

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