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Bass v. Drace

United States District Court, D. Delaware

September 19, 2018

DONALD F. BASS, Plaintiff,
LT. DRACE, et al, Defendants.

          Donald F. Bass, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

          Kenisha LaShelle Ringgold, Deputy Attorney General, and Ophelia Michelle Waters, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants Lt. Drace, Sgt. Gill, Sgt. Madigan, Sgt. Woloszyn, C/O Green, C/O Bradl, Officer Hicks, and C/O Cassidy.




         Pkinriff Donald F. Bass ("Plaintiff'), an inmate at the James T. Vaughn Correctional Center ("VCC") in Smyrna, Delaware, proceeds pro se and has been granted in forma pauperis status. He filed this civil rights complaint pursuant to 42 U.S.C. § 1983 claiming violations of his constitutional rights. (D.I. 3) Presently before the Courtis a motion for summary judgment filed by Defendants Lt. Drace ("Drace"), Sgt Gill ("Gill"), Sgt Madigan ("Madigan"), Sgt. Woloszyn ("Woloszyn"), C/O Green ("Green"), C/O Bradl ("Bradl"), Officer Hicks ("Hicks"), and C/O Cassidy ("Cassidy"), as well as Plaintiffs opposition. (D.I. 71, 72, 74, 75, 76)


         With a few exceptions, Plaintiff has been housed in the Security Housing Unit ("SHU") since 2000. (D.I 72-1 at 11) He was housed in SHU on December 13, 2012, the date of the occurrence that forms the basis of this action. (D.I. 72-2 at 1) At the time, Plaintiff was allowed recreation every other day. (D.I. 72-1 at 13)

         On December 13, 2012, Gill and Green began conducting recreation on A-Tier in Building 17. (D.I. 75 at 2) Plaintiff watched other inmates go to the "inside yard" for recreation. (Id). When it was Plaintiffs turn for recreation, he asked Green for inside recreation. (Id.) Green told Gill, his supervisor, that Plaintiff had elected to stay inside for recreation, and Gill responded that Plaintiff could not because he was "running [his] phone calls." (Id.) When Plaintiff replied that it was too cold, he was told he could either go outside or go to the showers. (Id.) Plaintiff opted to go outside and retrieved a hoodie he had borrowed from his neighbor. (D.I. 72-1 at 15, 17)

         Plaintiff states that Gill forced him out in the cold. (D.I. 75 at 2) Plaintiff told Gill that phone calls are supposed to be made after rec, not during rec, and Gill prevented people from having the rec. (D.I. 72-1 at 17) Gill cuffed Plaintiff and Gill and Green escorted Plaintiff outside. (Id.) Plaintiff said to Gill, "'Nobody's in this [inside] rec yard. The rule is if nobody's in the yard, I'm entitled to rec in this yard. You mean to tell me you're going to force me outside.' He said *Yep, let's go.'" (Id.) Plaintiff responded, "Everytime you work, you're alway's [sic] on some bullshit. I'm sick of your bullshit, I want to see a lieutenant. Get me a lieutenant". (D.I. 75 at 3)

         Plaintiff was escorted outside and secured in the cage. (D.I. 75 at 3) Plaintiff admits he was frustrated, upset, and angry because he was outside in the cold. (D.I. 72-1 at 18; D.I. 75 at 3) Plaintiff, who was cuffed from behind, turned around and placed his hands in the handcuff flap so the handcuffs could be removed. (D.I. 72-1 at 18) The cuffs are removed one at a time. (Id. at 19) The left cuff was removed. (Id.) Plaintiff became frustrated when Gill was removing the right cuff, said "Get the fuck off me," and pulled away while the handcuff was still secured to his right wrist. (D.I. 72-1 at 19; D.I. 75 at 3) The key was still in the handcuff key chamber; it "went propelling into the recreation yard" when Plaintiff pulled away. (Id.) According to Plaintiff, Gill responded, "Oh we got us a tough guy." (Id.) Plaintiff replied, "Nah, I'm not no tough guy I'm just sick of your shit. Now go get the fucking lieutenant." (D.I. 75 at 3) Plaintiff then kicked the perimeter gate. (Id.) According to Green's incident report, Plaintiff stated, "You better be lucky this gate is closed mother fucker," as he kicked the gate at the same time. (D.I. 72-3 at 16) Plaintiff admits he kicked the gate hard. (D.I. 72-1 at 27) According to Gill's incident report, Plaintiff kicked the fence with so much force that the entire fences in yards four and five were shaking. (Id. at D.I. 72-3 at 22) Gill's incident report also indicates that Plaintiff said, "bring the fucking lieutenant or you can come in here I wish I can get at you, you lucky I am in here .... I have eight life sentences I may not get you today Gill but I will eventually fuck you up." (Id.) Plaintiff denies making this statement. (D.I. 72-1 at 27)

         Plaintiff states that he was never ordered to return to the handcuff flap, to pick up the handcuff key, or given any kind of directive. (D.I. 75 at 3-4) Plaintiff states that Fitzgerald and Madigan came onto the hallway and that Plaintiff was in plain view of Fitzgerald, Madigan, Gill, and Green. (D.I. 75 at 4) Plaintiff states that he attempted to "temper the situation" when he "picked up the handcuff key off the ground, held the key up for all four officers to see, then walked over and placed the key in plain view along the windowsill." (Id.)

         Gill and Green left the tier, notified Drace of the situation, and briefed Drace when he arrived. (D.I. 72-3 at 19, 22) The Quick Response Team ("QRT"), which included Cassidy and Bradl, arrived and Drace briefed the team. (D.I. 72-3 at 1, 19, 22) The QRT team was told that Plaintiff "had a set of handcuffs still cuffed to his arm ... that this was a weapon and force would be necessary." (Id. at 7)

         C/O Fitzgerald ("Fitzgerald") is not listed as a member of the QRT in the incident reports submitted. Plaintiff testified at his deposition that Fitzgerald was a QRT member but acknowledged that he did not recognize the QRT members, did not know them, and stated it is hard to determine who they are with their "ninja" suits. (D.I. 72-1 at 25)

         Plaintiff states that Drace appeared outside the window while Gill walked over to the opposite side of the window and pointed to the handcuff key. (D.I. 75 at 3) Plaintiff walked over, picked up the key, held the key to window and stated, "Here, come get it. I just wanted to talk to a lieutenant." (D.I. 72-1 at 20; D.I. 75 at 3) Plaintiff walked to the handcuff flap and then tossed the key ...

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