Holley v. Fox

GRANT HOLLEY, Plaintiff, v. KEVIN FOXX, et al., Defendants.

Civil Action Nos. 17-cv-3140, 8:17-cv-3141-PX

United States District Court, D. Maryland

August 18, 2021

MEMORANDUM OPINION

Paula Xinis, United States District Judge.

Pending in this prisoner civil rights action are motions to dismiss or in the alternative, for summary judgment filed by Defendants Martins Aito, Farhan Younas, Elwyn Edwards II Samson Balogun, Foluso Fekoya, Kevin Hight, Ndukwe Onuma Woody Paul, and Adebowale Lawal. ECF Nos. 144, 149. The motions have been fully briefed and no hearing is necessary. See Loc. R. 105.6. For the following reasons, the Court grants in part and denies in part the motions for summary judgment.

I. Background^[1]

Maryland Department of Safety and Correctional Services (“DOC”) correctional officers are charged with maintaining safety and security in Maryland's prisons. This responsibility includes quelling disturbances that crop up in prison settings. To perform their jobs adequately, officers are trained that they may use force when necessary to restore discipline or bring an inmate under control. ECF No. 78-2 ¶ 3.^[2] See Whitley v. Albers, 475 U.S. 312, 320-21 (1986).

To aid them in this necessary and sometimes very dangerous function, correctional officers are given an array of tools, such as handcuffs, batons, and protective gear. One such device is oleoresin capsicum (“OC”) spray, colloquially known as “pepper spray.” ECF No. 782 ¶ 3. DOC officers are issued both a small canister of OC spray and a larger fogger-style spray. Id. Officers understand that the “fogger” presents greater risk to inmates and “should be expected to cause serious damage or death.” Id. Whenever OC spray is deployed on an inmate, officers are expected to render timely medical aid when they may safely do so. Id. Once sprayed, an inmate is to be evaluated and treated at the prison medical unit or, if necessary, correctional officers must provide immediate first aid and seek prompt medical assistance. Id. ¶¶ 2-3; see ECF No. 121-7 at p. 1.^[3]

On the evening of September 23, 2017, DOC inmates, Bryan Sheppard and Grant Holley, were housed as cellmates in the disciplinary or “segregation” tier at Jessup Correctional Institution (“JCI”). ECF Nos. 157-1 ¶ 3; 78-2 ¶ 4. Earlier that evening, inmates on that tier had been throwing refuse and other items from their cells onto the hallway. See ECF Nos. 78-2 ¶ 4; 103-4 ¶ 6. No evidence reflects that Holley or Sheppard had been throwing such items. Nor is there any evidence that any officers had been injured as a result.

Around 10:45 p.m., correctional officers began “the count, ” a process whereby they confirm that all prisoners are in their assigned cells. In the segregation tier, a correctional officer walks the hallway and peers into the cell through a window without opening the cell door. ECF No. 78-2 ¶ 4. At about 10:47 p.m., Defendant Correctional Officer II, Martins Aito (“Aito”) approached Sheppard and Holley's cell. At that time, and as corroborated by video surveillance footage, Holley's arm was hanging out of the door's feed slot. Id. ¶ 5; ECF No. 43-2 at 22:47:17.4. Aito also attests that the cell window was blocked so he could not see inside. ECF No. 78-2 ¶ 5.

As Aito approached the inmates' cell window, he asked to see Sheppard; but according to the officer, Holley declined to move. ECF No. 78-2 ¶ 5. Video footage captures what appears to be Aito talking into the feed slot at which point Holley appears to swipe at the papers in Aito's hand. Id.; ECF No. 43-2 at 22:47:50-48:00. Holley and Aito next can be seen swatting at each other, and Aito appears to move toward the feet slot. ECF No. 43-2 at 22:47:58-48:02. At the same time, liquid is splashed through the feed slot, which Aito believes was feces and bleach. ECF No. 78-2 ¶¶ 5, 6. The cell door remained closed and locked, and so Aito was free to move away from the door without any further interaction.

And yet, Aito next appears to spray his OC canister into the feed slot several times in rapid succession. ECF No. 43-2 at 22:48:11-48:27. In between each use of the canister, it appears as if liquid was thrown toward Aito through the slot. After spraying three or four shots of OC into the cell, Aito can be seen leaving the tier abruptly. Id. at 22:48:27-48:40. No other officer followed behind Aito to check on the inmates following Aito's use of his OC spray cannister.

Aito headed directly to the control center to return his equipment, including the OC spray canister, but he never reported that he had used it or that it had supposedly malfunctioned. ECF No. 78-2 ¶ 8. Aito next documented the occurrence in a handwritten “matter of record.”^[4] ECF No. 121-5 at 41. This statement, written contemporaneously with the incident, contradicts the video footage in meaningful ways. Aito wrote that Holley had “grabbed” and “squeezed” Aito's wrist which caused Aito to “close” the feed slot. Id. Aito further describes how “Inmate Grant then held the slot to my 2nd and index finger, thereby hurting my right wrist and fingers” and “as [Aito] bent down in excruciating pain, over the excruciating pain, inmate Grant Holley then assaulted [him] with an unknown substance of feces and bleach liquid.” Id. But the video shows no grabbing or twisting of Aito's wrist, or his bending down in “excruciating pain.” Lastly, and contrary to the video, Aito makes no mention of deploying his OC cannister.

In connection with this case, Aito also submitted a separate sworn declaration which diverges from his first written statement in important ways. Although Aito in his declaration now admits to using his OC cannister, he claims he only did so once, but that the OC canister “did not work as intended . . . [or] depress properly.” ECF No. 78-2 ¶ 6. Aito also attests that after he attempted to spray, he could see Sheppard through the feed slot standing up in the back of the cell with his hands in front, saying to Aito “[y]ou need to stop this nonsense.” Id. ¶ 7. But this detail was wholly missing from his first statement and does not jibe with the events depicted on the video.

After Aito left the tier, Defendant Sergeant Foluso Fekoya (“Fekoya”), the Officer in Charge, directed Defendants Correctional Officers II Farhan Younas (“Younas”) and Kevin Foxx (“Foxx”) to continue the count. ECF No. 43-5 ¶ 4. Younas and Foxx arrived on the wing around 11:00 p.m. See ECF No. 43-2 at 22:59:40-23:02:00. On the video footage, Younas can be seen walking up to and then past Sheppard and Holley's cell without stopping to look through the cell window. Id. at 23:02:27-02:30. The video also appears to capture Younas moving slightly out of the way as to avoid coming into contact with what appears to be liquid. The video quality is less than ideal, so it is difficult to see whether Younas was attempting to avoid liquid on the floor or liquid thrown in his direction.

Younas, too, submits detailed sworn declarations. At length, he describes the difficulties presented for officers to be able to see into an inmate's cell, given the size, shape, and positioning of the cell window and lighting. Younas also makes clear that he could not see into the cell and so he never verified their presence. ECF No. 103-2 ¶¶ 3-13. The video also depicts that Younas immediately left the tier without finishing the count. Id. ¶ 15; ECF No. 43-2 at 23:02:37. Younas also claims that during his shift he was completely unaware of any use of OC spray. ECF No. 149-7 ¶¶ 4-5.

A few minutes later, Foxx approached the cell to continue the count. Video footage shows that Foxx also seemingly reacted to what he attests is liquid thrown from Holley and Sheppard's cell. ECF No. 43-2 at 23:07:45-07:49. But again, the video footage is not clear enough to show whether Foxx reacted to liquid already on the hallway floor or coming from the cell. What is clear, however, is that Foxx immediately removed his OC fogger, bent down, shot OC through the gap at the bottom of the closed cell door, and quickly walked away. See ECF No. 43-2 at 23:07:45-07:55; see also ECF No. 78-4 at 44. Like Aito, Foxx did nothing to check on either inmate after using the OC spray. In a written statement provided that evening, Foxx candidly admits that he used the OC fogger “as an impulsive initial reaction” and essentially without justification. ECF No. 78-4 at 44.

Younas and Foxx reported to Fekoya about the liquid thrown at them. In Foxx's written report and Answer, Foxx admits that he also notified Fekoya and Defendant Captain Elwyn Edwards II (“Edwards”) of his having used the OC fogger in the cell. ECF No. 133 ¶ 46; see also ECF No. 78-4 at 44 (Foxx explaining that he “notified [his] building sergeant of the incident.”). Aito corroborates that Foxx returned to the administrative building after his count and stated that he (Foxx) had deployed his OC fogger. ECF No. 78-2 ¶ 9. In contrast, Fekoya attests that Foxx did not mention anything to him about deploying OC spray. ECF No. 103-5 ¶ 7.

Fekoya, in turn, reported the incident to his commanding officer, Edwards, who, as relayed by Lieutenant Kevin Hight (“Hight”), directed Fekoya to put a shield in front of Holley and Sheppard's cell. ECF Nos. 103-5 ¶ 8; 149-5 ¶ 6. The shield is used to protect officers from being hit by liquid or other projectiles thrown from a cell, but still permits them to see inside the cell window. Fekoya also recalls Hight telling him that no officer should be on the tier after placement of the shield, as corroborated by an entry in the building's logbook. ECF Nos. 149-6 ¶ 13; 43-7 at 11. Hight, however, says he only warned Fekoya to exercise caution on the wing, and assumed officers would continue to conduct rounds and keep a presence on the tier. ECF No.149-5 ¶ 7.

Video footage...