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Drumgo v. Little

United States District Court, D. Delaware

February 24, 2017

DESHAWN DRUMGO, Plaintiff,
v.
MIKE LITTLE, et al., Defendants.

          MEMORANDUM

         The plaintiff, DeShawn Drumgo ("Drumgo"), an inmate at the James T. Vaughn Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983.[1] (D.I. 3.) He appears pro se and was granted permission to proceed in forma pauperis. (D.I. 6.) Pending before the court is the defendants' motion for summary judgment. (D.I. 45.)

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The complaint alleges violations of the First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (D.I. 3.) On November 24, 2014, the court screened the complaint and allowed Drumgo proceed on: (1) claim two, retaliation claims against the defendants C/O Roy Foraker ("Foraker"), Sgt. Patrick Iwaskiewicz ("Iwaskiewicz"), Tim Martin ("Martin"), and Mike Little ("Little"); (2) claim three, excessive force claim against Lt. Stevenson ("Stevenson") and failure to intervene claim against and C/O Timothy Moss ("Moss"); and (3) claim five, excessive force and retaliation claims against C/O Kirlin ("Kirlin") and C/O Shannon Corbett ("Corbett"). All other remaining claims and defendants were dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) and 1915A(b)(1).

         A. Allegations in the Complaint

         1. Claim 2, Retaliation against Foraker, Iwaskiewicz, Martin, and Little

         Drumgo alleges that on February 11, 2014, Foraker, Iwaskiewicz, Martin, and Little took actions concerning Drumgo's confidential materials to teach Drumgo a lesson for filing civil complaints and grievances. Drumgo alleges that after he saw his attorney on February 11, 2014, Foraker, Iwaskiewicz, and Martin showed Drumgo copies of his confidential materials. Drumgo alleges that Iwaskiewicz passed the documents to Foraker who passed them to Martin, who them brandished them in front of Drumgo. Drumgo was able to get glimpses of the documents. Drumgo alleges that Iwaskiewicz told him that Little was trying to teach Drumgo a lesson for filing civil complaints and grievances.

         2. Claim 3, Excessive Force against Stevenson and Failure to Intervene against Moss

         Drumgo alleges that on April 5 or 6, 2014, when he was transferred to Building #21, Iwaskiewicz and Stevenson refused to honor a memo from Major Costello that allowed Drumgo's legal work to follow him to isolation. Drumgo asked Moss for his documents, to no avail. When Drumgo refused to walk, he was loaded onto a food cart and taken to the infirmary for review of injuries. Drumgo alleges that Moss and Stevenson were angry that he would not walk so they dragged him by the handcuffs. Drumgo alleges Stevenson used Drumgo's shirt to strangle him and that he punched Drumgo in the back of the head, while Drumgo was handcuffed. Drumgo alleges that Moss failed to intervene or stop the beating.

         3.Claim 5, Retaliation and Excessive Force against Kirlin and Corbett

         Drumgo alleges that on August 4, 2014, Kirlin and Corbett forced him to remain in a bug-infested shower infested for 45 minutes in retaliation for a lawsuit he filed against Anthony Burris ("Burris"). Kirlin then read aloud the names of other officers from Drumgo's documents. Drumgo began kicking the shower door to get the attention of mental health, and Kirlin came to retrieve Drumgo from the shower. Drumgo alleges that he did not resist and that he put his hands behind his back. When he saw his cell in complete disarray he sat down Indian style, submissively, posing no threat. Drumgo alleges that Kirlin became agitated and yelled for Corbett to spray Drumgo. Corbett sprayed Drumgo while Kirlin kneed him in the cheek. Another correctional officer told Kirlin to stop. Drumgo was taken to isolation. Drumgo asked to shower because of the burning from the spray, but received no response.

         B. Facts as Presented by the Parties

         1. February 2014 Retaliation

         On January 29, 2014, Drumgo was moved to the B-building. (D.I. 46, ex. A.) Drumgo complained that he had not received legal mail after the change in his housing assignment. (D.I. 47, Iwaskiewicz Decl.) Drumgo, who had seven boxes of legal documents, was informed that prison policy provides allows inmates only three storage boxes in their cell, and he had too many boxes. (D.I. 47, Iwaskiewicz Decl.; Little Decl.) The amount of personal material an inmate is allowed is limited due to safety and security reasons. (Id. at Little Decl.) Little asked Martin to speak to Drumgo to obtain a forwarding address to send the excess legal materials. (D.I. 47, Martin Decl.) Foraker escorted Drumgo from A tier to B tier. (Id.) Martin was in the B Building security office with Iwaskiewicz, identified himself, and asked Drumgo for an address so that Drumgo's property could be sent there. (Id.) Drumgo asked Martin if he had his property, and Martin told Drumgo that he did not. (Id.) Drumgo told Martin to send his property to the District Court. (Id.)

         Martin states that none of Drumgo's property was present and that his only involvement with Drumgo's legal materials was to secure an address so that Drumgo's excess property could be sent there. (Id.) Martin states that he did not brandish Drumgo's legal materials, and he did not review Drumgo's legal materials. (Id.)

         As is customary, Drumgo's personal property was inventoried upon his transfer. (Id. at Iwaskiewicz Decl.) Drumgo testified that he began "bugging the hell out of [the officers] about [his] property, because he had been without it for a month. (D.I. 46, ex. B atl2.) Drumgo testified that he was told by a worker in the property area that Little had his legal documents. (Id.) Little is the VCC Legal Services Administrator, but Drumgo knew Little as a law librarian. (D.I. 46, Ex. B at 13; D.I. 47 Little Decl.). Drumgo submitted grievances, dated January 31, 2014 and February 2, 2014, complaining that he was being deprived of his legal documents and legal mail. (D.I. 51, ex. D.) The January 31 grievance states that Drumgo was. "informed that [] Little is reading all [his] legal mail outside of his [presence]." (Id.) The February 2 grievance states that Drumgo was told that Little was seizing and reading Drumgo's documents in an attempt to find out what documents supported four cases that Drumgo claimed were currently open. (Id.) Inmates Christopher Johnson and Dwayne Staats provided statements regarding Drumgo's stress over his legal work. (Id. at exs. F, G.)

         Iwaskiewicz worked on February 11, 2014, and distributed mail to inmates as part of his duties. (D.I. 47, Iwaskiewicz Decl.) Iwaskiewicz states that he does not review or check mail for any reason. (Id.) Drumgo asked Iwaskiewicz about his legal mail, but the exchange only included Iwaskiewicz telling Drumgo he would speak to Little, nothing else. (Id.) Foraker worked the same shift that day and he did not read, review, or share Drumgo's mail with Iwaskiewicz or Martin. (Id.)

         During his deposition, Drumgo stated that Iwaskiewicz and Foraker, said, "[o]h Mike Little is trying to teach you a lesson with you filing all these civil complaints and grievances ... ." (D.I. 46, ex. B at 12, 14, 16.) Plaintiff did not remember if Martin said anything. (Id. at 15.) Drumgo testified that Little had testified against him "in previous dealings, " so the last thing he wanted was for Little to review any of his documents. (Id. at 21.) Drumgo also testified that Iwaskiewicz, Foraker, and Martin were passing around his documents that had been copied, and that he described as "privileged lawyer envelopes and privileged lawyer letters." (Id. at 14-15.) Iwaskiewicz states that Martin did not pass around Drumgo's legal mail and Martin did not say that Little was trying to teach Drumgo a lesson. (D.I. 47, Iwaskiewicz Decl.)

         Drumgo submitted a grievance on February 11, 2014, and stated that he had been told by Martin about the three box rule, that he thought the policy was unreasonable, asked for a reasonable alternative, and complained that he still had not received his legal documents. (D.I. 46, ex. E.) The grievances makes no mention of Iwaskiewicz, Foraker, or Martin passing around his documents.

         Little met with Drumgo on February 18, 2014 to work out a plan for Drumgo to reduce the number of his boxes. (D.I. 47, Little Decl.) Drumgo was provided an area to go through all his legal materials and, after two and one-half hours, reduced his material to three boxes. (Id.) The remaining four boxes are stored in a property room at the VCC, although Drumgo requested that they be sent to the United States District Court for the District of Delaware. (Id.) Little states that he has not, and does not, read Drumgo's legal mail, and he does not make copies of Drumgo's documents to send to the State. (Id.) At his deposition, Drumgo recalled that he and Little were "together for a nice bit of time" when he went through his documents. (D.I. 46, ex. B at 32-33.)

         2. April 2014 Excessive Force and ...


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