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Parkell v. Frederick

United States District Court, D. Delaware

March 19, 2018

RONALD FREDERICK, et al., Defendants.

          Donald D. Parkell, James T. Vaughn Center, Smyrna, Delaware, Pro Se Plaintiff.

          Devera Breeding Scott, Deputy Attorney General Deputy, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants.




         Plaintiff Donald Parkell ("Plaintiff9), an inmate at the James T. Vaughn Correctional Center in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. He appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 8, 11) He filed this action pursuant to 42 U.S.C. § 1983[1] and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc et seq. (D.I. 3) The amended complaint, filed on December 22, 2015, is the operative pleading. (D.I. 17) The Court has jurisdiction by reason of a federal question pursuant to 28 U.S.C. § 1331. Presently before the Court are Defendants' motion for summary judgment, Plaintiffs motion to compel, and Plaintiffs request for counsel. (D.I. 30, 39, 40) The motion for summary judgment is unopposed, Plaintiff having been given one final extension of time to respond (until September 7, 2017), and failing to do so. (See D.I. 35)


         This matter proceeds on two claims: an excessive force claim under the Eighth Amendment and religion claims under the First Amendment and RLUIPA. (See D.I. 18, 19) The amended complaint alleges that on June 23, 2015, Plaintiff asked Defendant Sergeant Ronald Frederick ("Frederick") a question about legal mail, to which Frederick responded by yelling at Plaintiff and, in a fit of rage, spraying Plaintiff with Vexor (a commercial pepper spray) all over Plaintiffs face, chest, and arms, until Plaintiff was completely covered in the chemical. Plaintiff was then handcuffed, seen by a nurse, taken to a holding cell, and transferred to building 18. The amended complaint also alleges that Defendant Chaplain Dr. Gus Christo ("Christo") violated Plaintiffs right to practice his religion under the First Amendment and RLUIPA because he: (1) did not allow Plaintiff to be recognized as Jewish; (2) does not allow communal services or worship in building 21; and (3) refuses to provide any religious instruction or assistance in building 21. Plaintiff alleges that the Delaware Department of Correction ("DOC") will not allow him to practice Judaism and that he is well-known by other inmates as a Jewish faith adherent.

         Excessive Force Claim. Plaintiff testified that he brought suit against Frederick because Frederick abused his authority and sprayed Plaintiff with mace "just because he wanted to." (D.I. 31-1 at ¶ 9) On June 23, 2015, Plaintiff was housed in B-Building (a medium security housing unit). Frederick was sitting in the sergeant's office, which is very small and has one entrance. (Id. at D15, D56-62) According to Frederick, two other officers were in the office behind the door and Frederick. (Id. at D56-62) As Plaintiff walked past the sergeant's office on his way to the medication call, he stopped, entered the office, and asked Frederick if he had any legal mail. (Id. at D13-16, D56-62) Frederick told Plaintiff to go get his medication. (faatD14) Plaintiff testified that when he asked Frederick for his mail, Frederick "just snapped, " "got very angry, " and cursed at Plaintiff. (Id.) According to Plaintiff, after he told Frederick there was no need to cuss at him, Frederick pulled out his mace and sprayed Plaintiff. (Id. at Dl 6) Plaintiff testified that he told Frederick not to spray him, but he maced him anyway. (Id. at D18) Plaintiff testified that Frederick emptied the can on him. (Id. at D19) Plaintiff testified that in no way was he resisting at all. (Id. at D.I. 21)

         According to Frederick, he told Plaintiff that it was not time for mail call, and he ordered Plaintiff to continue on to the medication pass room for his medication. (Id. at D56-62) Plaintiff did not follow Frederick's order and, according to Frederick, began acting strangely and aggressively, balling his fists and bouncing around as if he wanted to box Frederick. (Id.) Also according to Frederick, when Plaintiff did not follow one or two additional orders to proceed to the medication pass room, Frederick stood up and ordered Plaintiff to return to the tier and lock in his cell. (Id.) According to Frederick, it was at the point, when Plaintiff failed to obey that order and maintained a righting posture, that he sprayed Plaintiff with Vexor. (Id.) Frederick denies cursing, shouting, or rushing at Plaintiff and denies that Plaintiff told Frederick not to spray him. (Id.)

         Frederick handcuffed Plaintiff and placed him in a closet that had a screened window until other officers arrived to escort Plaintiff to the infirmary. (Id. at D18-19, D56-62) Plaintiff testified that he had no problems after June 23, 2015, as a result of the Vexor exposure, just slight burning of the skin. (Id. at D27)

         Plaintiff was disciplined for the June 23, 2015 incident. (Id.) He was charged with demonstrating a strike, failure to obey an order, and disorderly and threatening behavior, found guilty, and sanctioned. (Id. at D28, D61) Plaintiff seeks compensatory and punitive damages from Frederick. (L/. atD45)

         Religion Claims. Plaintiff has identified as Jewish since 2012. (Id. at D32) In August 2015, Christo was hired by the DOC as a chaplain assigned at the VCC. (D.I. 31-1 at ¶ 63-64) Christo was trained at another location and began working at the VCC in November 2015. (Id.) Christo was added as a defendant in the amended complaint, filed in December 2015. (D.I. 17) As the VCC chaplain, Christo is responsible for planning and coordinating inmate religious services. (Id. at D63)

         According to Christo, during the relevant time-frame, he had no contact in person, in writing, or otherwise with Plaintiff. (D.I. 31-1 at ¶ 63-64) According to Christo, he was not personally involved in making any decisions regarding Plaintiffs requests for religious services and instruction, or his request to be identified as Jewish. (Id.) Plaintiff testified that he named Christo as a defendant because Christo was die chaplain and Plaintiff wanted this case to proceed as a class action.[2] (Id. at D8)

         During his deposition, Plaintiff testified that he had never met Christo but had corresponded with him. (Id.) Plaintiff testified that Christo prevented him from practicing his religion because there are no communal services (such as a Sabbath service) or religious instruction (such as a Hebrew course), and he is looking for some kind of religious experience to pursue. (Id. at D39-40) He believes that because Christo is the head of all religious services, Christo was the decisionmaker on the issue of communal services. (Id. at D39) Plaintiff testified that he wrote to Christo about communal services and was told "they just don't do that, " while Christo states that he had no contact with Plaintiff in writing, in person, or by any other means. (Id. at D41, D64) Since filing the complaint, Plaintiff has had no communication with Christo. (Id. at D42)

         Exhaustion. Plaintiff testified that he filed one grievance regarding the June 23, 2015 incident with Frederick, and was told that it was not grievable. (Id. at D45) He testified that he filed grievances regarding his claims with Christo and the results were "nongrievable." (Id. at D46-47) The affidavit of Cpl. Matthew Dutton ("Dutton") states that he searched the grievances submitted by Plaintiff from June 23, 2015 to December 22, 2015 in connection with this lawsuit. (Id. at D65) During Dutton's search he found that Plaintiff had filed many grievances, but did not find any grievances in connection with the June 23, 2015 incident, grievances related to Plaintiffs religion, or grievances concerning Christo. (Id. at D66)


         Plaintiff moves to compel Defendants to respond to discovery requests. (D.I. 39) Plaintiff states that Defendants refuse to provide a list of inmates housed in B-Building on June 23, 2015; documents regarding Frederick's use of force, grievances involving Frederick; and documents regarding security cameras in B-Building.

         Pursuant to Fed.R.Civ.P. 26, "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parries' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit Information within this scope of discovery need not be admissible in evidence to be discoverable." Fed.R.Civ.P. 26(b)(1).

         The Court has reviewed Defendants' responses to Plaintiffs discovery requests. Defendants have either responded to the discovery requests or objected on the basis of privilege under Delaware law. The objections are sustained and, to the extent Defendants responded, the answers ...

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