Carmichael v. Hershberger et al

Filing 53

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 6/9/2017. (aos, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

DAVID CARMICHAEL,
Plaintiff,
v.

Civil Action No. TDC-14-3037

BENJAMIN BUSS,
Defendant.

MEMORANDUM OPINION
David Carmichael, currently confined at Roxbury Correctional Institution ("RCI") in
Hagerstown, Maryland, filed this action alleging that Benjamin Buss, a Correctional Officer at
RCI, used excessive force against him in violation of the Eighth and Fourteenth Amendments to
the United States Constitution.l

Pending before the Court is Buss's Motion to Dismiss or, in the

Alternative, for Summary Judgment. For the reasons set forth below, the Motion is denied.
BACKGROUND
The following

facts are presented

in the light most favorable to Carmichael,

the

nonmoving party.

1
Carmichael had also named as defendants Gregg L. Hershberger, the Maryland Secretary of
Public Safety and Correctional Services; Michael Stouffer, Warden of RCI; and Peter Juknelis, a
Hearing Officer at RCI. In its September 30, 2015 Memorandum Opinion and Order, the Court
dismissed Carmichael's claims against Hershberger, Stouffer, and Buss in his official capacity,
granted summary judgment in favor of Juknelis, and granted summary judgment in favor of Buss
on certain other claims presented by Carmichael. Carmichael v. Hershberger, No. TDC-143037,2015 WL 5832401, at *10 (D. Md. Sept. 30, 2015).

I.

July 8, 2014 Incident
On the morning of July 8, 2014, Buss was conducting a routine count of the inmates,

during which he typically noted any inmate requests for showers, recreation, and phone calls.
Both Carmichael and his cellmate, Bruce Owens, requested a shower, recreation time,' and a
phone call, which Buss noted on a piece of paper.

Approximately

returned to their cell to escort them to the shower stalls.

15 minutes later, Buss

After the showers, Buss walked

Carmichael and Owens back to their cell rather than providing them with recreation and a phone
call. When Carmichael asked him why he had denied their requests for recreation and phone
calls, Buss became agitated. Carmichael then asked to speak with a supervisor. Buss responded
that he would "send a supervisor to the cell," but Carmichael nevertheless asked again for a
supervisor.

Carmichael Dep. 88:21, 89:1-11, Pl.'s Opp'n Ex. A, ECF No. 51-1. Buss instructed

Carmichael and Owens, in an angry, forceful tone, to step into the cell and closed the door
behind them.

Carmichael, who was handcuffed with his hands behind his back, put his hands

through the food slot of the cell door so that Buss could remove his handcuffs.

Buss uncuffed

his left wrist and, as Carmichael extended his right arm through the food slot, Carmichael asked
again for a supervisor.

According to Carmichael, an agitated Buss then forcefully yanked

Carmichael's right arm, still handcuffed, causing the right side of Carmichael's body, including
his shoulder, to slam into the inside of the cell door.

Carmichael pulled back, in the process

breaking the handcuff key and pinching Buss's hand between the food slot and cell door.
According to Owens, Buss "pulled" and "yanked" again once more. Owens Dep. 32: 17-21, PI.' s
Opp'n Ex. C, ECF No. 51-3. For his part, Buss denies pulling Carmichael against the door and
asserts that it was Carmichael, upset about not getting recreation time, who pulled away, causing
Buss's hand to get caught in the food slot and the handcuff key to break.

2

As a result of the July 8 incident, Carmichael felt pain in his right shoulder, which he
described as an eight on a scale from one to ten, and a numbing sensation in his right hand from
where the handcuff tightened around his right wrist.

Carmichael asked for medical care on

several occasions and continued to complain of pain for approximately one week or more.
II.

Internal Grievances
Carmichael filed three Administrative Remedy Procedure forms ("ARPs") regarding the

July 8, 2014 incident.

According to the RCI inmate handbook, an ARP is "a formal complaint

allowing formal appeal of the Warden's response to the Deputy Secretary for resolution of the
complaint at Division Headquarters."

Mot. Summ. J. Ex. 2, at 4. The first ARP, numbered RCI-

0463-14 ("First ARP"), was submitted on July 8 and complains that Buss denied Carmichael his
recreation that day "for no apparent reason."

First ARP 1, Carmichael Dep. Ex. 6, Pl.'s Opp'n

Ex. A. The second ARP, numbered RCI-0462-14 ("Second ARP"), was filed on July 10 and
complains, as relevant here, about Buss's use of force on July 8, stating that Buss became
"physically aggressive by forcefully yanking my arm through the door's open food slot" after
Carmichael asked to speak to Buss's supervisor.

Second ARP 1, Carmichael Dep. Ex. 7, Pl.'s

Opp'n Ex. A. The third ARP, numbered RCI-0477-14 ("Third ARP") and submitted on July 18,
also alleges that Buss "physically assaulted" Carmichael after he had asked for a supervisor.
Third ARP 1, Carmichael Dep. Ex. 8, Pl.'s Opp'n Ex. A.
On July 16, 2014, prison officials dismissed the First ARP as repetitive of the Second
ARP.

Sometime after the Second ARP was filed, Sergeant Harsh, the RCI ARP coordinator,

asked Carmichael to "sign off' on it because the incident involving Buss was "already being
investigated" by the Internal Investigative Unit ("IIU") and was therefore "moot."

Carmichael

Dep. 156-57, Pl.'s Opp'n Ex. A; Carmichael Dep. 181-82, Mot. Summ. J. Ex. 1. On July 22,

3

2014, Carmichael withdrew the Second ARP, signing a form that stated, "I acknowledge that my
complaint can not be further addressed through the administrative remedy procedure.

I also

understand that failure to exhaust the administrative remedy procedure by withdrawing

my

request may result in dismissal of my complaint at a higher level." Second ARP 1. Also on July
22,2014, prison officials dismissed the Third ARP because the complaint had been forwarded to
the IID.
Carmichael did not dispute the withdrawal of the Second ARP or appeal the dismissal of
the First or Third ARPs. Carmichael did not take further action on the ARPs because of Sergeant
Harsh's statements. According to Carmichael, "I took him for his word," and "I had no reason to
doubt what he was saying" because

Carmichael

received the IID case number

for the

investigation of the July 8 incident. Carmichael Dep. 156-57, Pl.'s Opp'n Ex. A.
According to the inmate handbook, an appeal of an ARP must be filed with the Inmate
Grievance Office ("IGO") within 30 days of the final ARP decision.

When Carmichael first

arrived at RCI, he received a copy of the inmate handbook at an orientation session that included
information

on how to file ARPs.

Carmichael acknowledged

reading the handbook.

September 2014, Carmichael received a letter from Prisoner Rights Information

In

System of

Maryland, Inc. ("PRISM"), in response to a request for guidance on whether he could file a
lawsuit or criminal charges against Buss. The letter, in relevant part, summarized the exhaustion
requirement and appeals process, tracking the information set forth in the Inmate Handbook and
DCD.

4

III.

Disciplinary Proceeding
On July 8, 2014, after Carmichael had filed his first ARP relating to the July 8 incident,

Buss filed a disciplinary ticket against Carmichael accusing him of assault or battery and
damaging prison property based on the pinching of his hand and the breaking of the handcuff
key.

During a disciplinary hearing on July 16, 2014, Carmichael maintained that Buss had

yanked him into the cell door by his cuffed right hand when he asked for a supervisor, and that
"as a normal reaction," he yanked it back. Mot. Summ. J. Ex 5, ECF No. 48-8. At the hearing,
Carmichael stated in his defense that "I did not intentionally assault Officer Buss or cause any
problem for him to issue me a ticket," that Buss had filed the disciplinary ticket in retaliation for
his filing of an ARP, and "whatever happened between Officer Buss and I-we
had a misunderstanding

somewhere-and

both probably

whatever happened, it never was not intentional. And

I do apologize for that." Id. Hearing Office Peter Juknelis accepted Buss's version of events and
penalized Carmichael by imposing 365 days of segregation, revoking 365 good-conduct credits,
charging $4.99 in restitution for the broken handcuff key, and suspending visitation privileges
for six months.
DISCUSSION
In his Motion, Buss seeks summary judgment in his favor on the grounds that:

(1)

Carmichael failed to exhaust his administrative remedies; (2) Buss did not engage in excessive
force against Carmichael; and (3) Buss is entitled to qualified immunity because he did not
violate a clearly established federal right. For the reasons set forth below, the Motion is denied.
I.

Legal Standard
Because both parties have submitted evidence for the Court's review with respect to all

arguments, the Motion will be construed as a motion for summary judgment.

5

Under Federal

Rule of Civil Procedure

56(a), the Court grants summary judgment

if the movmg party

demonstrates 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(a); Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). In assessing the Motion, the Court views the facts in the light most favorable to
the nonmoving party, with all justifiable inferences drawn in its favor.

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts supported in the record,
not simply assertions in the pleadings.

Bouchat v. Bait. Ravens Football Club, Inc., 346 F.3d

514, 522 (4th Cir. 2003). The nonmoving party has the burden to show a genuine dispute on a
material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
A fact is "material" if it "might affect the outcome of the suit under the governing law."
Anderson, 477 U.S. at 248. A dispute of material fact is only "genuine" if sufficient evidence
favoring the nonmoving party exists for the trier of fact to return a verdict for that party. Id. at
248-49.
II.

Exhaustion of Administrative Remedies
Buss first contends that Carmichael's

claim should be dismissed because he failed to

exhaust available administrative remedies, as required by the Prison Litigation Reform Act of
1995 ("PLRA"), Pub. L. No. 104-134
U.S.C.

S 1997e(a)).

S 803,

110 Stat. 1321 (1996) (codified as amended at 42

Exhaustion of administrative

remedies is an affirmative defense most

properly considered on a motion for summary judgment.

See Jones v. Bock, 549 U.S. 199,211-

12 (2007). The defendant bears the burden of proving the affirmative defense. Id. at 216.
A.

Legal Framework

The PLRA provides: "No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or

6

other correctional facility until such administrative remedies as are available are exhausted."
U.S.C.

S

42

1997e(a). This exhaustion requirement serves a valuable function by "allowing a prison

to address complaints about the program it administers before being subjected to suit, reducing
litigation to the extent complaints are satisfactorily resolved, and improving litigation that does
occur by leading to the preparation of a useful record." Jones, 549 U.S. at 219. Inmates must
exhaust administrative remedies before they bring any "suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive force or
some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The exhaustion requirement demands that an inmate follow the prison's

"applicable

procedural rules" so that the prison has an opportunity to address the claim administratively.

Id

(quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)). Thus, an inmate must complete the prison's
internal appeals process, if possible, before bringing suit under

S

1983. Booth v. Churner, 532

U.S. 731, 734-35, 740-41 (2001); Chase v. Peay, 286 F. Supp. 2d 523, 529-30 (D. Md. 2003),
aff'd, 98 F. App'x 253 (4th Cir. 2004). In Maryland, the ARP process is the primary way for
inmates in state prisons to present their complaints-including
prison officials.

complaints of excessive force-to

See Division of Correction Directive ("DCD") 185-002.VLA, Mot. Summ. J.

Ex. 3, ECF No. 48-6. The ARP process has three steps: an initial request for relief through an
ARP submitted to the warden, an appeal of the warden's
Corrections,

and an appeal of the Commissioner's

denial to the Commissioner

denial to the IGO.

Regs. 12.07.01.04, 12.07.01.05(B) (2017); DCD 185-002.V.B-C, 185-002.VLN.

See Md. Code
Inmates may

seek judicial review of the IGO's final determinations in a Maryland circuit court.
Ann., Corr. Servs.

S

10-210 (2002); DCD I 85-002.VLO.

7

of

Md. Code

For complaints subject to the ARP

process, inmates may not file a request for relief directly with the IGO.

See Md. Code

Regs. 12.07.01.2D.
An inmate may also present a complaint alleging the use of excessive force to the IIU.
See Md. Code Regs. 12.11.01.09(E).

Notably, prison officials "shall issue a final dismissal of

[the ARP] for procedural reasons when it has been determined that the basis of the complaint is
the same basis of an investigation under the authority of the [IIU]." DCD 185-003.VI.N.4.

Such

a dismissal shall include a response to the inmate stating that "Since this case shall be
investigated by IIU, no further action shall be taken within the ARP process."

Id. An inmate

may appeal the rationale for the procedural dismissal of an ARP. DCD 185-003.VI.N.7.
B.

Exhaustion of Carmichael's Claim

Buss argues that Carmichael did not properly exhaust administrative remedies on his
excessive force claim because he did not complete all three steps of the ARP process.
Carmichael raised a complaint about Buss's alleged excessive force in his Second and Third
ARPs, but he withdrew the Second ARP, and the Third ARP was procedurally dismissed on the
express grounds that an IIU investigation had been initiated.

Buss claims that Carmichael's

failure to appeal the dismissal to the IGO constituted a failure to exhaust.
In Ross v. Blake, 136 S. Ct. 1850 (2016), decided after this Court issued its Memorandum
Opinion on the first Motion to Dismiss in this case, the United States Supreme Court considered
the specific administrative remedy scheme in Maryland prisons and, in particular, whether the
existence of an IIU investigation would excuse an inmate from pursuing a related ARP through
the full appeal process. Id. at 1855. The Court rejected the ruling of the United States Court of
Appeals for the Fourth Circuit that the PLRA exhaustion requirement is not absolute, such that
there is an unwritten "special circumstances" exception to the PLRA that excuses a failure to

8

exhaust if based on reasonable, mistaken belief that exhaustion had been accomplished.

Id at

1856-58. The Court, however, did not conclude that an inmate's failure to pursue all available
appeals on an ARP that was procedurally dismissed because of a parallel IIU investigation would
necessarily bar a civil action. See id at 1860. The Court held that although PLRA exhaustion is
mandatory, an inmate need only exhaust "available" remedies that "are 'capable of use' to obtain
'some relief for the action complained of.'''
731, 738 (2001)).

Id at 1859 (quoting Booth v. Churner, 532 U.S.

The Court identified three circumstances

in which a remedy may be

unavailable "despite what regulations or guidance materials may promise":
a simple dead end-with

(l) if "it operates as

officers unable or consistently unwilling to provide any relief to

aggrieved inmates"; (2) if the administrative scheme is so confusing or "opaque that it becomes,
practically speaking, incapable of use"; or (3) if "prison administrators thwart inmates from
taking

advantage

intimidation."

of

a grievance

process

through

machination,

misrepresentation,

or

Id at 1859-60.

Considering the Maryland regime, the Court noted that "Maryland wardens routinely
dismiss ARP grievances as procedurally improper when parallel IIU investigations are pending,"
but also acknowledged
jurisdictional

"several

cases in which an inmate refused to take a warden's

'no' for an answer, resubmitted his grievance up the chain to the 100, and there

received a ruling on the merits, without any discussion of the ARP/IIU issue." Id at 1860-61.
Describing these latter cases as "perplexing in relation to normal appellate procedure"
stating that Maryland's

and

grievance process involves "at least at first blush, some bewildering

features," the Court ultimately remanded the case for further consideration

of whether the

prisoner, in fact, had an available remedy. Id Applying Ross, and consistent with earlier cases,
judges in this District have found on the facts before them that a prisoner did not have an

9

available administrative remedy to exhaust where there was a pending lID investigation.
Oakes v. Dep'tofPublie

See

Safety, No. GLR-14-2002, 2016 WL 6822470, at *4-5 (D. Md. Nov. 18,

2016); Brightwell v. Hershberger, No. DKC-II-3278,

2016 WL 4537766, at *7-9 (D. Md. Aug.

31,2016).
The Court reaches the same determination here. Carmichael did not have an "available"
administrative remedy because the administrative scheme was "so confusing that no such inmate
could make use of it."

Ross, 136 S. Ct. at 1862.

Although Carmichael

filed an ARP

complaining about Buss's alleged excessive force, that ARP was procedurally dismissed because
there was an ongoing lID investigation regarding the same matter.

This dismissal tracked

official prison policy as stated in the Division of Correction Directive, which provides that:
The Warden or institutional coordinator shall issue a final dismissal of [an ARP] for
procedural reasons when it has been determined that the basis of the complaint is the
same basis of an investigation under the authority of the Internal Investigation Dnit
(lID).
a. The dismissal must refer to lID's case number.
b. The response shall read: "Your request is dismissed for procedural reasons
final. This issue is being investigated by lID, case number: ~ __ . Since
this case shall be investigated by lID, no further action shall be taken within
the ARP process."
DCD 185-003.VLN.4 (emphasis added). In fact, Carmichael's Third ARP was dismissed by the
affixing on its face of what appears to be a rubber stamp, containing language that almost exactly
tracked the DCD, with the lID case number entered in a blank space:
Dismissed for procedural reasons. Final per DCD 185-003.VLN.4. [... ] issue is
being investigated by lID, case number: 14-35-00759. Since this case shall be
investigated [... ] further action shall be taken within the ARP Process.
Mot. Summ. J. Ex. 1 Carmichael Dep. Ex. 8 (bracketed text illegible).
prison policy, the ARP process was not available to Carmichael.

10

Thus, as a matter of

Buss argues that despite this clear policy, Carmichael was nevertheless required to appeal
the procedural dismissal to the IGO.

The DCD states that the "rationale for dismissal" on

procedural grounds may be appealed, DCD 185-003.VLN.7, and Buss identifies examples of
cases in which an inmate appealed a procedural dismissal of an ARP based on a parallel IID
investigation, and the IGO then considered the merits of the grievance. See, e.g., Mot. Summ. J.
Ex. 4, at 34-44, 46-54, ECF No. 48-7. He also references a letter received by Carmichael, in
response to a request for legal advice on whether he could file a lawsuit against Buss, in which
PRISM advised Carmichael about the exhaustion requirement and the process of filing appeals
of ARPs to the IGO.
To the extent that the IGO has considered the merits of appeals of ARPs filed when there
was a parallel IID investigation, they appear directly to contradict the policy as stated in the
DCD. The Supreme Court has labeled this anomaly "perplexing in relation to normal appellate
procedure" and exposes the absurdity of this approach by posing a series of questions that arise
from this "bewildering" situation:
•
•
•

•

If the IGO thinks the wardens wrong to dismiss complaints because of pending
IID investigations, why does it not say so and stop the practice?
Conversely, if the IGO thinks the wardens right, how can it then issue merits
decisions?
And if that really is Maryland's procedure-that
when an IID investigation, the
warden (and Commissioner of Correction) cannot consider a prisoner's complaint,
but the IGO can-why does the Inmate Handbook not spell this out?
Are there, instead, other materials provided to prisoners that communicate how
this seemingly unusual process works and how to navigate it, so as to get a claim
heard?

Ross, 136 S. Ct. at 1860-62. Buss offers no answers for these questions. The Inmate Handbook
and the relevant subsection of the DCD do not discuss the need to appeal a procedural dismissal
based on a parallel IID investigation.

Although the PRISM letter provided an additional

description of the exhaustion requirement and the appeal process, this letter from an outside
11

organization did not reconcile the contradiction between the clear state policy outlined in the
DCD that ARPs must be dismissed when there is an lID investigation
requirement to exhaust all possible appeals.

and the general

In any event, by the time Carmichael received this

letter, his deadline to appeal the dismissal of the Third ARP had already passed.
Faced with a similar situation, a judge in this District correctly concluded that "[w]here
the relevant administrative

rules provide clear grounds for a procedural

dismissal of the

complaint, it seems disingenuous to suggest that a prisoner ought to appeal such a dismissal even
if he knows it was rightly decided and has no legal or factual arguments that the complaint was
inappropriately dismissed."

Brightwell, 2016 WL 4537766, at *9. Compounding the confusion

for Carmichael was the fact that during the pendency of his ARPs, Sergeant Harsh, the RCI ARP
coordinator asked Carmichael to "sign off' on an ARP because the incident involving Buss was
"already being investigated"

by the lID, such that any related ARPs would be "moot."

Carmichael Dep. 156-57, Pl.'s Opp'n Ex. A. Sergeant Harsh has not specifically denied making
these statements, but instead has stated that he does not recall any specific conversation and that
it was not his standard practice to the use the word "moot" when referring to a procedural
dismissal of an ARP under lID investigation.

The Court concludes that under the facts of this

case, Carmichael did not have an available administrative remedy because the procedure is so
"opaque" that "no ordinary prisoner can make sense of' what, if anything, the administrative
process requires where an lID investigation results in the procedural dismissal of an ARP. Ross,
136 S. Ct. at 1859.
Furthermore, the Court concludes that viewing the evidence in the light most favorable to
Carmichael,

Sergeant Harsh's actions of asking Carmichael to "sign off' on his ARP and

informing him that his ARP would be moot because of the ongoing lID investigation caused

12

Carmichael to withdraw the Second ARP and not to pursue the Third ARP through the appeal
process. Thus, the administrative process was also unavailable to Carmichael because Sergeant
Harsh's erroneous statement advising Carmichael that there was no basis to continue to pursue
the ARPs was a "misrepresentation"
"taking advantage of a grievance."

by a prison official that "thwart [ed]" Carmichael from
Ross, 136 S. Ct. at 1859-60.

For both reasons, the Court

denies the Motion to the extent it is based on a failure to exhaust administrative remedies.
III.

Excessive Force
Buss contends that he is entitled to summary judgment on Carmichael's

excessive force

claim because the force Buss used was minimal and applied in good faith to maintain order.
Claims of excessive force by a correctional officer against an inmate are analyzed as possible
violations of the Eighth Amendment prohibition on cruel and unusual punishment.
Albers, 475 U.S. 312, 319 (1986); Hudson v. McMillian,

Whitley v.

503 U. S. 1, 5-7 (1992).

The

"unnecessary

and wanton infliction of pain" by a correctional

officer violates the Eighth

Amendment.

Hudson, 503 U.S. at 5. The "core judicial inquiry" on such an Eighth Amendment

claim is "whether force was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm." Id. at 6-7. To answer this
question, courts look to "the extent of injury suffered by an inmate," "the need for application of
force, the relationship between that need and the amount of force used, the threat 'reasonably
perceived by the responsible officials,' and 'any efforts made to temper the severity of a forceful
response.'"

Id. at 7 (quoting Whitley, 475 U.S. at 321).

In addition to showing that the officer acted maliciously, a party asserting an Eighth
Amendment excessive force claim must also demonstrate that the officer used a "nontrivial"
amount of force. Wilkins v. Gaddy, 559 U.S. 34, 39 (2010). "[N]ot every malevolent touch by a

13

prison guard gives rise to a federal cause of action." Id. at 37 (quoting Hudson, 503 U.S. at 9).
Although inmates must show the application of nontrivial force, an Eighth Amendment violation
can occur even if that force did not cause serious injury.

Id. at 38 ("[A]n inmate who is

gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely
because he has the good fortune to escape without serious injury.").
Here, there is a genuine issue of material fact on whether the force used by Buss while
removing Carmichael's

handcuffs "was applied in a good faith effort to maintain or restore

discipline or maliciously and sadistically for the very purpose of causing harm."
U.S. at 6-7.

Under Carmichael's

Hudson, 503

account of the events, when Carmichael asked to speak to

Buss's supervisor about the denial of recreation time, Buss became agitated and forcefully
yanked Carmichael's right arm, causing the right side of his body to slam into the inside of the
cell door. That Buss took the actions even though Carmichael had been complying with Buss's
efforts to return him to the cell and remove his handcuffs demonstrates that the amount of force
used was disproportionate

to the need to use such force and suggests malicious

intent,

particularly where Carmichael described Buss as speaking to him in an angry, forceful tone.
Owens

generally

corroborates

Carmichael's

account

Carmichael's

once more after Carmichael

Carmichael's

"arm hanging up outside the door."

and also

adds

that

Buss

tried to pull back in response,
Owens Dep. 32:17-21.

yanked

resulting

in

Although Buss

presents a different version of events, in which it was Carmichael who became upset and pulled
his hands away without provocation, causing Buss's hand to get pinched, the Court must view
the evidence in the light most favorable to Carmichael for purposes of this Motion. Carmichael's
evidence is sufficient to establish a genuine issue of material fact on the issue of whether Buss
acted with malicious intent.

14

A reasonable jury could also find that the force used by Buss was nontrivial.

As Owens

witnessed the encounter, it "looked like [Buss] could have broke[n]" Carmichael's arm and that
Carmichael didn't have any choice "but to crouch over or lose his arm."

Id. at 95: 1:16.

Moreover, Carmichael felt like his shoulder was "out of socket," complained of pain for at least
four to five days, and asked for medical attention for the injury on multiple occasions. Id. at 9697; see also Carmichael Dep. 105, Pl.'s Opp'n Ex. A. The pain in his shoulder made it difficult
to sleep in a normal position, prevented him from doing push-ups, and hindered his ability to
write. As this Court noted in its September 30, 2015 Memorandum Opinion, the level of force
used here is similar to force that was found to be nontrivial in other cases. See Carmichael v.
Hershberger, No. TDC-14-3037, 2015 WL 5832401, at *7 (D. Md. Sept. 30, 2015); e.g., Bacon
v. Wood, 616 F. App'x 601, 603 (4th Cir. 2015) (reversing the district court's grant of summary
judgment in favor of defendants); Bacon v. Wood, No. 7: 13CV00565, 2014 WL 7369356, at *1
(W.D. Va. Dec. 29, 2014) (describing the facts of the case, in which a correctional officer
responded to an inmate asking to talk to a supervisor by pulling his handcuffed arms through the
tray slot, causing abrasions, lacerations, and an injury to the inmate's pinky finger).
The Court is unpersuaded by Buss's arguments that the remaining evidence contradicts
Carmichael's account such that no reasonable jury could believe that Buss used excessive force
against Carmichael.

See Scott v. Harris, 550 U.S. 372, 380 (2007) ("When opposing parties tell

two different stories, one which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.").

First, this Court has already rejected Buss's contention that

Carmichael's medical records establish that any force used was minimal, see Carmichael, 2015
WL 5832401, at *8, and Buss has presented

15

no new evidence on this point.

Second,

Carmichael's statements during the July 16,2014 disciplinary hearing, considered in context, do
not constitute an admission that Carmichael did not act maliciously or sadistically. As part of his
closing statement, Carmichael stated that "whatever happened between Officer Buss and I-we
both probably had a misunderstanding

somewhere-and

whatever happened, it never was not

intentional. And I do apologize for that." Mot. Summ. J. Ex 5. Significantly, Carmichael made
the statement in a disciplinary action against him for the alleged assault or battery of Buss and
damage to prison property.

Viewed in the light most favorable to Carmichael, his apology and

statement that an act was not intentional is properly viewed as referring to Carmichael's pulling
back of his arm, which resulted in Buss's hand getting pinched by the food slot in the cell door
and the breaking of the handcuff key, and which Carmichael has separately asserted was an
immediate reaction to Buss's initial pulling of Carmichael's arm that caused him to slam into the
cell door.

Carmichael did not admit that Buss's initial pull on his arm was unintentional.

Particularly when viewed together with the deposition of Owen, Carmichael's
deposition

was not so "blatantly

contradicted"

or "utterly

discredited"

statements in the July 16,2014 disciplinary hearing as to render it unbelievable.

account in his

by Carmichael's
Scott, 550 U.S.

at 380; cf Hall v. Wash. Metro. Area Transit Aufh., 33 F. Supp. 3d 630, 632 (D. Md. 2014)
(stating that the court must adopt the nonmoving party's version of events if the record includes
video footage that is "unclear and ambiguous" (quoting Glascoe v. Sowers, No. ELH-1l-2228,
2013 WL 5330503, at *5 (D. Md. Sept. 20, 2013))).

Accordingly, Carmichael has presented

sufficient evidence to establish a genuine issue of material fact on whether Buss used excessive
force in violation of the Eighth Amendment.

16

IV.

Qualified Immunity
Buss also seeks summary judgment on the excessive force claim on the basis that he is

entitled to qualified immunity from suit in his individual capacity.

"The doctrine of qualified

immunity protects government officials 'from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.'''

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)).

Summary judgment should be denied on a qualified

immunity claim if (1) there is sufficient evidence to establish a genuine issue of material fact on
whether the government official violated one of the plaintiff s federally protected rights; and (2)
the right at issue was "clearly established" at the time of the events in question. See id. at 232.
"If the law at that time was not clearly established, an official could not reasonably be expected
to anticipate subsequent legal developments, nor could he fairly be said to know that the law
forbade conduct not previously identified as unlawful." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982) (internal quotation marks omitted).
Buss is not entitled to qualified immunity on the excessive force claim.

First, for the

reasons set forth above, see supra part III, the Court finds that there is a genuine issue of material
fact on Carmichael's excessive force claim against Buss. Second, Buss has provided no basis for
the Court to reconsider its prior conclusion, in its September 30, 2015 Memorandum Opinion,
Carmichael, 2015 WL 5832401 at *8, that as the time of the incident on July 8, 2014, it was
clearly established under Supreme Court and Fourth Circuit case law that inmates have an Eighth
Amendment

right to be free from excessive

force by correctional

officers, and that the

application of nontrivial force can support such a claim even without serious injury.

See

Hudson, 503 U.S. at 4; Wilkins, 559 U.S. at 37-39; Hill v. Crum, 727 F.3d 312, 320-21 (4th Cir.

17

2013).

Thus, the defense of qualified immunity does not provide a basis for the Court to grant

summary judgment in favor of Buss.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment, is DENIED. A separate Order shall issue.

Date:

c~
TIm:ORE h2HU ~~

June 9, 2017

United States District Judge

18