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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BYRON B. SIMMS, as GUARDIAN : and NEXT FRIEND of CHRISTOPHER : BYRON SIMMS, : Plaintiff : : v. : : JANICE HARDESTY, et al., : Defendants : ...o0o...

Civil No. AMD 02-3506

MEMORANDUM OPINION This is a case of profound irony. Ostensibly to "protect" Christopher Simms, a 28year-old pre-trial detainee known to have suffered a behavior-altering brain injury years earlier, from injuring himself, a team of three correctional officers entered Simms's cell at the Prince George's County, Maryland, Detention Center in September 1998. At the time of the officers' entry into the cell, Simms was lying on his back on his bed with his hands behind his head. Over the next several moments, after Simms refused an order to get on the water-covered floor of the cell so that restraints could be applied to his wrists, and during a struggle between the three officers and Simms, Simms was rendered unconscious and suffered severely debilitating facial and head injuries. Indeed, according to one of his expert witnesses, Simms allegedly lost 13 points off his IQ as a result of the brain trauma he endured during those moments. As a result of his injuries, Simms has no recall of what happened to him during those moments in the cell with the correctional officers, each of whom has testified under oath that he did not strike, punch, or kick Simms. The issue

presented is whether Simms can avoid summary judgment on his claim that the officers deprived him of his due process liberty interest in avoiding excessive force. I am persuaded that the record compels the conclusion that Simms does indeed avoid summary judgment. I. Plaintiff, Byron B. Simms, filed this action as Guardian and Next Friend of his son, Christopher Simms, against Prince George's County ("the County"), and eight correctional officers employed at the Prince George's County Detention Center ("Detention Center"), in the Circuit Court for prince George's County. Defendants timely removed the case to this court based on federal question jurisdiction. Discovery has concluded, all claims against five of the individual defendants have been voluntarily dismissed by plaintiff, and now pending is the remaining defendants' motion for summary judgment. I ordered full briefing on the federal claims (while staying the state law claims) and a hearing has been held. For the reasons set forth below, the motion for summary judgment shall be granted in part and denied in part. II. A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because

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they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). The moving party bears the burden of showing that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 256. III. On or about December 31, 1991, at age 21, Simms had been involved in a motor vehicle accident in which he sustained significant brain damage. As a result of his injuries, Simms developed an impulse disorder. In the years following the automobile accident, although he was not involved in any incidents of actual violence, Simms was arrested on several occasions for impulsive behavior, including stalking and inappropriate touching of women. On or about July 16, 1998, Simms was transferred from the Howard County, Maryland, Detention Center, where he had been held for some period of time, to the Detention Center. On July 17, 1998, employees of the Detention Center's medical contractor, Correctional Medical Services ("CMS"), performed a medical history and screening on Simms, including a mental health assessment; Simms denied any history of psychiatric hospitalization or medications. CMS personnel recorded that Simms was "acting and/or talking in a [really] strange manner" and that Simms was on medications for a prior auto accident.

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On July 19, 1998, Simms was referred for psychological services because he was disoriented and confused, following correctional officers around asking where he should go and what he should do. Ben Yue, the psychiatric associate at the Detention Center, described Simms as quiet and timid, and noted that Simms would walk up to people and ask if they had called to him. On July 21, 1998, Yue spoke by telephone with Byron Simms to obtain Simms's psychological history. Byron Simms informed Yue that his son had been in a serious motor vehicle accident in 1991 and that he had an impulse disorder as a result, for which he took a prescription medications, Tegretol and Paxil/Risperdal. Yue noted that he would obtain Simms's medical records from Howard County. Yue faxed a medical release authorization to Howard County to obtain Simms' medical records. Thereafter, Yue ordered that Simms be placed in Housing Unit 11B, a special unit at the Detention Center used to house mentally ill inmates, other inmates with disabilities, and inmates who need to be heavily medicated. Yue also directed that Simms should be seen by Dr. White, the Detention Center's psychiatrist. Later that day, Simms was following people around and generally irritating fellow inmates. He was placed in an isolation cell for observation. On July 25, 1998, Simms was seen by Dr. White. Dr. White noted that Simms appeared disheveled, his speech was soft, and his mood affected. Dr. White noted a possible "schizoaffective" disorder and that Simms seemed depressed. He ordered that Simms be placed on Paxil, Trilafon and Cogentin. Dr. White also ordered follow up visits with the doctor and social worker. Apparently, Simms's stay at the Detention Center between the end

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of July through early September was relatively uneventful, although, on September 7, 1998, Dr. White modified Simms's medications because he was having difficulty on the unit by going into other people's belongings. Also, Simms had been locked down two times for this behavior. On September 9, 1998, Yue noted that Simms had a "silly mood." Officer Hardesty was the Housing Unit Officer in Unit 11B on September 11, 1998, and worked the 7:00 a.m. to 3:00 p.m. shift. When Hardesty arrived at work that morning, she was informed by Corporal Blackman, the Housing Unit Officer for 11B on the previous shift, that Simms had been very disruptive during the night, making a lot of noise and keeping the other prisoners awake. Prior to that day, Hardesty had had no contact with Simms. That morning, during "lock down" (the period during which all prisoners must remain in their cells, particularly during a shift change), Hardesty noticed that Simms had thrown water out of the food slot in his cell door. From the officers' desk about 15 feet across from Simms's cell, Hardesty ordered Simms to stop throwing water out of his cell. Simms continued to throw water out of his cell door. Thus, Hardesty, called her Zone Commander, Sergeant Doukas, to request that the water in Simms's cell be turned off. Doukas requested a maintenance person to shut off the water in Simms's cell. The plumbing controls for each cell are located inside the cell. Officer Hardesty asked Simms to step away from the door to permit one of the maintenance employees ("Fish") to enter to shut off his water. When Hardesty opened

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Simms's cell door to allow Fish to enter, Simms pushed Hardesty and Fish out of the way, ran out of his cell and began running around the nearby day room. Simms refused Hardesty's order to return to his cell. Fish turned off the water in Simms's cell and then went to the desk area and waited with Hardesty. Hardesty called Doukas and informed him of the situation. Doukas arrived at Unit 11B within about two to three minutes and attempted unsuccessfully to talk Simms back into his cell, but Simms continued to run around the Unit. Doukas called out a "Signal Three," a non-emergency signal, for members of the Emergency Response Team ("ERT") to respond to Unit 11B. A "Signal Three" is a low-level response call made in a case where there is "no security risk." The ERT "basically are first responders [that] help quell any incidents, assist the correctional officers. They respond to any type of emergency, an officer in trouble, a disturbance in a housing unit, and they're trained as a team to go in and assist in quelling those situations." See Plft.'s Ex. 8, at 5, 9-10. ERT members receive a "basic" two to four hour psychology class to prepare them for situations with mentally ill inmates. No policy on training exists with regard to the amount of force that should be used with mentally ill inmates or on communicating with or specifically treating mentally ill inmates. With regard to the use of force, all officers, including the ERT members, are instructed to treat inmates with mental disabilities "the same as any other individual." ERT members Corporal Roberts, Corporal Mack, Corporal Lyles, Corporal Bruce, Sergeant Carrol and Corporal Ducellier each arrived at Unit 11B in response to the "Signal

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Three" and were informed that Simms refused to be locked down. ERT members lined up outside the door to Unit 11B. The ERT members walked into Unit 11B in a column and the point person, Corporal Roberts, ordered Simms to lay down on the floor and place his hands behind his back. According to the officers, Simms did not obey the order and, instead, he began walking towards the ERT members, cursing and yelling. Simms was again ordered to get down on the floor, but he ignored the order and continued walking towards the ERT members. Thus, Officers Roberts and Mack went "hands-on" and used an "arm bar" take down maneuver to take Simms to the floor, while Simms resisted by refusing to place his arms behind his back and by pushing upwards to stand up. Mack used a pressure point technique to restrain Simms. Simms did not respond to this technique and continued to resist by thrashing about and pushing off from the floor. Simms grunted and growled at the officers, who eventually overpowered Simms and got his arms behind his back and handcuffed him. None of the ERT officers hit, kicked or struck Simms during the incident. As a result of the incident, Sergeant Doukas ordered Simms's reclassification and reassignment to Unit H-5, a disciplinary unit in the Detention Center. Once Simms was secured in handcuffs, Roberts and Mack picked him up and the ERT members escorted Simms out of 11-B and took him to the medical unit where a nurse attended to Simms. The nurse treated Simms with Betadine (iodine) for carpet burns to his forehead, which he suffered in 11B while thrashing about. After being cleared by the nurse, Simms was taken to Unit H-5. Pursuant to normal procedure, Simms was strip searched and

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then placed in cell 215 in Unit H-5 without incident. Officer Lyles found Simms to be "very cooperative" after being removed form his cell in 11-B. The log book for Unit 11-B on September 11, 1998, notes that Simms was "locked down for 72 hrs. for throwing water outside his cell door" and that he had been "[reclassified] to H-5." An order issued providing that the water in Simms's cell (cell 215) was to be turned off. Coincidentally, within a few minutes after Simms was placed in cell 215 in Unit H-5, he had visitors. Lyles and another officer walked Simms to the visitor "contact" booth; Simms was cooperative and the officers did not have to place handcuffs on him to transport him. Simms's visitors were Dr. Mason Scott of Developmental Service Group, Inc., and two of his colleagues. Dr. Scott prepared a "consultative note" regarding his visit with Simms. According to Dr. Scott's note, Simms had "what appeared to be a fresh bruise on the left frontal region of the forehead" and a "slightly swollen" left eye, which Simms reported was due to an altercation with the guards, but he had no serious injuries of any kind as a result of the incident moments earlier. After the visit, Simms was escorted back to his cell without incident. Later, at about mid-day on September 11, 1998, while Corporal France-Troupe was performing her duties, Simms whispered to France-Troupe to "come here." When she approached the cell, Simms whispered, "I want to come out." When France-Troupe told Simms he was not allowed out of his cell, Simms called her a "black bitch[]" and began kicking and banging on his cell door, in a profanity-laced tirade. The officer notified her

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zone commander, Sergeant Stewart, that Simms was unruly and banging on his cell door, and that water was coming from under the cell door. Stewart authorized the use of restraints to prevent Simms from harming himself. Meanwhile, at approximately 11:30 a.m., the ERT had received a "Signal 13" (officer being attacked) in the Medical Unit. In a cell near the Medical Unit, another detainee, Thomas Williams, had attacked Correctional Officer Ducellier while Williams was waiting to be seen by a doctor. ERT members Mack, Bruce and Lyles responded and pulled Williams off of Officer Ducellier, restrained him in handcuffs, and took him to the nurse's area to be examined. They then returned Williams to his cell on the first floor of Unit H-5. As the officers entered H-5 to return Williams to his cell, they could hear banging and kicking coming from the second floor of the Unit. Corporal France-Troupe informed Officers Mack, Bruce and Lyles that Simms was banging and kicking in his cell or on his cell door and refused to stop. France-Troupe also advised the officers that she had just spoken with Sergeant Stewart and he had authorized the use of restraints, i.e., waist chains, handcuffs, and leg irons. Lyles, who was the senior officer in charge of the ERT team, testified that it is normal procedure to restrain a detainee who is kicking and banging in his cell in order to keep him from harming himself. It is undisputed that at no time did any correctional officer see or hear Simms banging his head against a door or wall or otherwise engage in any actions posing a risk of harm to Simms. France-Troupe simply described Simms as "unruly." Officers Bruce, Lyles and Mack obtained waist chains and leg irons from the control

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desk at H-5 and then proceeded up the stairs to the second floor to cell 215. Approximately five to ten seconds before they arrived at cell 215, the banging and kicking stopped. As the officers approached the doorway to cell 215, they saw water coming out from under the door. Apparently, although the water supply in cell 215 had been shut off before Simms was transferred, Simms splashed the little water that remained inside the toilet onto the cell floor and underneath and outside of the cell door. As a result of the permanent injuries Simms suffered in the ensuing encounter, he has no recollection of the following events. Thus, the following account of the events in cell 215 is based solely on the defendants' testimony. Cell 215 had a sink, a toilet and a metal desk to the right of the doorway and a bunk bed against he wall directly across from the doorway. The only way to see into a cell is through the window in the door. The window is approximately eight inches by five inches wide. Bruce looked through the window into cell 215 and advised the other officers that Simms was sitting or lying on his bunk bed and that there was water on the floor. Bruce ordered Simms several times to get on the floor and place his hands behind his back. Simms remained on his bunk. Corporal Lyles, the team leader, then gave the order for them to enter the cell. Mack opened the cell door. Bruce was the first officer to enter the cell. Simms continued to refuse to go to the floor; he was lying on the bunk, passively, face up with his hands behind his head. Bruce approached Simms and attempted to pull him off the bunk and place him onto the floor, using the arm-bar technique. Simms resisted and, thereafter, a

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struggle ensued. Officer Bruce slipped on the water on the floor of the cell. Mack, Lyles and Bruce then allege that Bruce caught himself on the sink. Simms, who was by then off the bed, grabbed Bruce's leg and began to bite Bruce's boot at his ankle. Simms also allegedly grabbed and pulled Mack's hand toward his mouth in order to bite it. Lyles entered the cell and attempted to pull Simms away from Bruce and then away from Mack's arm and hand. Lyles grabbed Simms's orange prison suit near the shoulder as Lyles slipped on the wet floor. Mack and Lyles attempted to take Simms down to the floor and place his arms behind his back to handcuff him. Simms continued to resist and to thrash about; eventually, he got back to his feet. The officers also got back to their feet. The officers tried to place Simms up against the wall on the left side of the cell to stabilize his body and tried to get his arms behind his back, but Simms continued to resist. All of them spun around and ended up back on the floor struggling. When they went to the ground, Simms first fell to his knees and then down to his chest to the floor. During the struggle, Mack was attempting to get his handcuffs out of his pocket and Simms was thrashing around with his arms and trying to push up off of the floor. Mack applied the pressure point technique, but it had no effect on Simms. Bruce attempted to hold Simms's legs down so he could not get off of the floor. Lyles was attempting to restrain Simms's arms and get his arms behind his back. The water in the cell and Simms's thrashing about made it difficult to get a grip on Simms's arms and control him. After some time, Simms suddenly stopped struggling and the officers were able to

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pull his arms behind him and place handcuffs on him. Mack, Lyles and Bruce attest that at no time did either of them hit, kick or punch Simms during the incident. Once Simms was handcuffed, the officers noticed blood on the floor and realized that Simms was bleeding from the bridge of his nose. Simms was unconscious and unresponsive at this point. Mack, Lyles and Bruce immediately lifted Simms, with one officer supporting each arm and his head and another officer carrying his legs, and moved Simms just outside his cell due to the wet floor so that Simms could receive medical treatment. The officers laid Simms down and propped him slightly to the side so that no blood would flow into his airway. Corporal Lyles called out a Signal 89 (medical emergency) and nurses Janet Levin and Pamela McNicol soon arrived. Sergeant Carroll arrived just before the nurses. The Log Book shows that the Signal 89 was called out at 11:45 a.m. The nurses assessed Simms's condition and wiped the blood from his face. Nurse McNicol, the on duty-nurse, and Nurse Levin arrived and found Simms face down with blood around his face and head. Simms was unresponsive to verbal commands, injured on his left orbital region, and the left side of his head suffered from "forceful blunt head and facial trauma." McNicol was not aware of any injuries suffered by Officers Lyle, Mack, and Bruce. Corporal Lyles retrieved a stretcher and Simms was loaded onto the stretcher and taken to the medical unit, where he "came to." The Log Book for Unit H-5 shows that Simms was taken out to the Medical Unit at noon. Simms was evaluated and treated by Dr.

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Nwasu and then transported to Prince George's County Hospital by Sergeant Bybee. Simms was admitted to Prince George's Hospital Center on September 11, 1998, and he was discharged on September 28, 1998. In addition to the black eyes, abrasions, fractures to the left orbital floor and the nasal bone, Simms suffered the following injuries to his brain: subdural hematoma or hematomas, subarachnoid brain hemorrhage, a hydrocephalus, cerebral atrophy and ventricular dilatation, a subdural hygroma, and intracerebral blood collection. Simms contends that the circumstantial evidence in the record, and most particularly the expert medical evidence and its attendant impeaching effect on the account given by the defendants of the character of the force used against Simms in cell 215, would permit a reasonable fact finder to conclude by a preponderance of the evidence that he was subjected to a severe beating with fists, booted feet, and perhaps a baton, and/or that his head was thrust violently into or against the steel toilet bowl that was present in cell 215 at the time of his struggle with the officers. There follows a summary of the evidence relied on by Simms in support of his claim that he was the victim of such force that his claim rises to the level of a due process violation. Charles Key, Sr., ("Key"), Simms's "Use of Force Expert," states in his affidavit that the severity of the injuries Simms suffered amounted to a use of lethal force by any standard. Key attests that the circumlinear bruise on Simms's head reflected a pattern injury and indicated that Simms head had struck something with a rounded surface in the cell. "Given the angular nature of the rest of the inside of the cell, the

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injury to his head could only have been caused by the rounded inside of the toilet. Hitting his head on the outside of the toilet would possibly have caused contusions and abrasions, but the resulting injury would not have had the `horseshoe' effect shown in the photograph." Dr. Citrin, a neuroradiologist, stated one of Simms's injuries was "linear" and "all one bruise" that it "look[ed] like he almost had a bowl or something stuck on his head or twisted [but that] [i]t's not an injury you can give yourself." Dr. Citrin attests to a reasonable degree of medical certainty that Simms's injuries are wholly inconsistent with the version of the encounter given by the members of the ERT team. According to Dr. David Katz, the injuries sustained by Simms from this incident show that he suffered "significant trauma" to his face, to the orbital floor left eye, and "multiple cranial facial injuries that are inconsistent with subduing someone on the floor or someone self-inflicting an injury," and that "multiple blunt trauma to the head and the globe causing multiple intracranial hemorrhages in an orbital blowout fracture" had occurred. In particular, with regard to the injury around Simms' eye socket, Dr. Katz described the amount of force required as "a tennis ball [being] served hitting me flush in the eye to do it. [A] lob hitting [someone] in the eye, for example, would not do it." Dr. Tavacoli, a treating physician at the hospital, recorded that the officer who delivered Simms to the hospital not long after the incident reported that Simms had been "beaten on the face" ("[p]er officer, [patient] was being transferred and tried to bite an officers [sic] arm

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