Cruse v. Sanni

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

IVEN CORNELIUS CRUSE,

Plaintiff,

v. Civil Action No. SAG-22-0521

BRIAN FROSH, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Iven Cornelius Cruse (also known as “Iven Cruz”), who is presently incarcerated

at Eastern Correctional Institution (“ECI”), filed this civil action pursuant to 42 U.S.C. § 1983

against former Maryland Attorney General Brian Frosh, Jessup Correctional Institution (“JCI”)

Warden Bettie Harris, JCI Officers Collins Sanni, Isaac Asuelimen, Babatunde Abidogun, Alain

Choutedjem, and Department of Public Safety and Correctional Services (“DPSCS”)

Commissioner Wayne Hill (collectively, the “Correctional Defendants”). ECF No. 1. In the

Complaint, Cruse claims that the JCI officers used excessive force against him.1 Id. at 2-3. Cruse

seeks injunctive relief and monetary damages. Id. at 3.

The Correctional Defendants filed a Motion to Dismiss or, Alternatively, for Summary

Judgment on October 4, 2022, arguing in pertinent part that Cruse failed to exhaust administrative

remedies. ECF No. 36. Cruse then filed a “Motion to Receive Discovery on All Defendants”

(ECF No. 39), which he later supplemented (ECF Nos. 40, 43). Cruse also opposed the

Correctional Defendants’ motion. ECF Nos. 41, 42, 48. The Court denied the Correctional

1 Cruse also brought suit against Emmanuel Esianor, alleging that he denied Cruse medical care in violation of the

Eighth Amendment to the United States Constitution. ECF No. 2-3. The Court granted summary judgment in favor

of Esianor on March 21, 2023. ECF Nos. 49, 50.

Defendants’ motion without prejudice and directed the Correctional Defendants to respond to

Cruse’s Motion for Discovery and to file a responsive pleading addressing the substance of Cruse’s

excessive force claim. ECF Nos. 49, 50.

On April 18, 2023, the Correctional Defendants answered Cruse’s Complaint, and stated

that the parties were undergoing discovery. ECF No. 51. As such, the Court denied Cruse’s

Motion for Discovery as moot, and directed the parties to file a status report informing the Court

of the progress on discovery. ECF No. 52. Thereafter, the Correctional Defendants renewed their

Motion to Dismiss, or in the Alternative, for Summary Judgment. ECF No. 56. Cruse was notified

of his right to respond to the Correctional Defendants’ renewed Motion pursuant to Roseboro v.

Garrison, 528 F.2d 309 (4th Cir. 1975), and he did so on October 12, 2023. ECF Nos. 57, 60.

Additionally, Cruse filed a Motion to Appoint Counsel and a Motion “requesting witnesses be

entered on the docket.” ECF Nos. 61, 64.

The Court has reviewed the pleadings and finds a hearing unnecessary. See Loc. R. 105.6

(D. Md. 2023). For the reasons stated below, the Correctional Defendants’ Motion to Dismiss, or

in the Alternative, for Summary Judgement, is granted in part, and Defendants Frosh, Hill, and

Harris are dismissed from this action. The Motion is denied as to Defendants Collins Sanni, Isaac

Asuelimen, Babatunde Abidogun, Alain Choutedjem. Cruse’s Motion for Appointment of

Counsel (ECF No. 61) will be granted, and his additional motion (ECF No. 64) will be denied

without prejudice.

I. BACKGROUND

The Court summarized Cruse’s allegations in its Memorandum Opinion on March 21,

2023, but reiterates them here, for clarity:

Cruse claims that on September 23, 2021, while he was incarcerated at JCI, he

was in line to receive his medication when Officer Abidogun directed him to

turn around and leave. Compl., ECF No. 1 at 2. Cruse found himself surrounded

by Officers Sanni, Choutedjem, and Asuelimen when Officer Abidogun

handcuffed him and accused him of “swallowing something.” Id. The officers

then forced Cruse to go to the “compound shack” where they “beat” him while

he was handcuffed. Id. Officer Choutedjem kneed Cruse in the chest, and Officer

Sanni slapped him in the face and tried to break his left thumb, while Officers

Asuelimen and Abidogun held him down. Id. at 2-3.

Cruse alleges that following the incident, Defendant Esianor denied him medical

visits, “claiming there’s nothing he could do” and that Cruse would “just have

to heal.” ECF No. 1-1 at 1. At the time he filed the instant Complaint, Cruse still

suffered pain in his hand, wrists, left thumb, and chest. Id. at 2.

The Correctional Defendants have moved to dismiss Cruse’s Complaint, or in the

alternative, for summary judgment in their favor. ECF No. 56-1. In support thereof, they argue

Cruse has not stated a claim against Defendants Brian Frosh, Wayne Hill, and Bettie Harris

because Cruse has not alleged any personal involvement by these Defendants in the incident, nor

has he pled facts supporting supervisory liability. Id. at 13-14. Further, they argue that, to the

extent Cruse sued the Correctional Defendants in their official capacities, the suit must be

dismissed, and that the Correctional Defendants are entitled to qualified immunity. Id. at 14-16.

Additionally, they argue Cruse has failed to state a colorable claim against Defendants

Collins Sanni, Isaac Asuelimen, Babatunde Abidogun, and Alain Choutedjem. They explain that

Cruse pursued a grievance with the Inmate Grievance Office (“IGO”) regarding this incident, and

the IGO referred the matter to the Office of Administrative Hearings (“OAH”) for resolution. ECF

No. 56-1 at 5. The Correctional Defendants include a copy of the decision of Administrative Law

Judge (“ALJ”) M. Teresa Garland following a hearing held on March 29, 2023 via video

conference. ECF No. 56-3.

By a preponderance of the evidence presented, ALJ Garland found the following facts. On

September 23, 2021, Cruse left his housing unit and crossed the “yard” in order to get to the multi-

purpose building to get medication. Id. at 5. Officer Abidogun was on the yard and gave Cruse a

direct order to return to his housing unit, which Cruse ignored. Id. Sergeant Sanni gave Cruse a

similar order, which was also ignored. Id. Officer Abidogun observed a piece of paper in Cruse’s

hand, which Cruse attempted to pass to another inmate. Id. As a result, Cruse was placed in

handcuffs and taken to “the shack” to be searched. Id. There are no cameras in or around the

shack. Id. While inside the shack, Cruse was strip-searched, but contraband was not found. Id.

He was then released to his housing unit. Id. Cruse alleges that his injuries at the hands of

correctional officers occurred inside the shack. Id. at 6. Cruse did not seek medical attention until

September 25, 2021, and at that time he noted he had been beaten in the shack. Id. He had swelling

in his left hand and bruising on both wrists, but an x-ray did not reveal fractures. Id. He did not

report injury to any other part of his body. Id.

In reaching her decision, ALJ Garland discussed the evidence presented. Id. at 7. She notes

that on September 25, 2021, Officer Abidogun and Sergeant Sanni wrote Matters of Record

regarding this incident which describe Cruse “failing to obey” orders and “attempting to pass a

white paper, presumably containing contraband to another inmate.” Id. at 7-8. Both statements

indicated Cruse was taken to the shack to be searched but denied assaulting him. Id. at 8. The

officers were interviewed by the Internal Investigations Division (“IID”) on April 13, 2022, and

“[t]heir statements were consistent with their written Matters of Record.” Id. Segreant Asuelimen

and Officer Adejumo were also interviewed by the IID investigator. Id. Sergeant Asuelimen

“observed an officer telling [Cruse] to place his hands behind his back” and he told Cruse to

“follow the order of Officer Abidogun.” Id. Sergeant Asuelimen entered the shack, but left prior

to the search because Cruse “had complied with being handcuffed.” Id. Officer Adejumo

indicated that he was on the compound on the date and time at issue, but had no contact with Cruse.

Officer Choutedjem observed Cruse failing to follow a direct order, and assisted Sergeant Sanni

and Officer Abidogun with escorting Cruse to the shack. Id. Officer Choutedjem did not remain

in the shack and returned to his other duties but did observe Cruse exit the shack and walk past

him. Id. Officer Choutedjem did not note any bruising, limping, or other indicia of distress. Id.

The ALJ recounts that there is no video surveillance surrounding or inside the shack, but

Captain Towanda Brown reviewed available video footage. Id. at 9. Brown’s “description of the

events which occurred in the compound were consistent with the verbal and written descriptions

provided by the correctional officers against whom the allegations of assault were made.” Id. ALJ

Garland concluded that “[b]ased upon the record before” her, she could not “find by a

preponderance of the evidence that any of the officers alleged to have assaulted the Grievant took

any action that was arbitrary or capricious, or inconsistent with the law.” Id. Cruse was informed

of his right to seek judicial review of ALJ Garland’s decision in the Circuit Court (id. at 10), but

according to the Correctional Defendants’ review of Maryland Judiciary Case Search, Cruse failed

to further appeal this matter. ECF No. 56-4, ECF No. 56-1 at 11-12. Notably, the Correctional

Defendants failed to provide any copies of the evidence relied upon by ALJ Garland.

Cruse opposed the Correctional Defendants’ Motion. ECF No. 60. The opposition

contains an affidavit from Cruse attesting to the veracity of the information provided therein. ECF

No. 60-1 at 8. In opposition, Cruse argues that summary judgment is inappropriate because

material facts remain in dispute. ECF No. 60-1. Specifically, he notes that since filing his

Complaint he has “obtained the entire sixty-eight-page IID report.”2 Id. at 3. Cruse highlights

several inconsistencies between his account of the events which occurred and the officers’

recollections. He also points to conflicting statements at various points in the IID report. Id.

2 Although Cruse indicates that he included the entire report with his opposition response (see ECF 60-1 at 3), only

portions of it are provided. ECF Nos. 60-3, 60-4. Cruse also includes a document titled “Additional Information for

Opposition to Defendants Response to Their Motions.” ECF No. 60-2.

Specifically, page 6 of the IID report states “Officer Abidogun advised Sgt. Sanni that he observed

the inmate collecting contraband.” Id., see also ECF No. 60-3 at 6. However, in his matter of

record, Sanni does not include that detail (ECF No. 60-4 at 4-5), and instead the IID report reflects

that Sanni told Cruse to comply with the order because he “was observed trying to give an

unknown substance to another inmate.” ECF No. 60-3 at 5. Cruse also points out that no

contraband was found throughout the incident. ECF No. 60-1 at 3, ECF No. 60-3 at 5. Cruse

concludes that there are “questions as to what degree of force was exerted upon Mr. Cruse and

whether it was justified in light of any resistance by Mr. Cruse. Because Defendants and Mr.

Cruse’s accounts are contradictory…the issue of what occurred in the shack must be determined

by the fact-finder.” ECF No. 60-1 at 3-4. Cruse reiterates his argument that the Correctional

Defendants utilized excessive force against him and argues that they are not entitled to qualified

immunity. Id. at 4-8.

II. STANDARD OF REVIEW

In reviewing the Complaint in light of a Motion to Dismiss pursuant to Fed. R. Civ. Proc.

12(b)(6) the Court accepts all well-pleaded allegations of the complaint as true and construes the

facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.

Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005) (citing Mylan Labs., Inc. v.

Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); Ibarra v. United States, 120 F.3d 472, 473 (4th Cir.

1997). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Migdal v. Rowe Price-

Fleming Int’l Inc., 248 F.3d 321, 325-26 (4th Cir. 2001); see also Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 513 (2002) (stating that a complaint need only satisfy the “simplified pleading

standard” of Rule 8(a)).

The Supreme Court of the United States explained a “plaintiff’s obligation to provide the

‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (internal citations omitted). Nonetheless, the complaint does not need “detailed

factual allegations” to survive a motion to dismiss. Id. at 555. Instead, “once a claim has been

stated adequately, it may be supported by showing any set of facts consistent with the allegations

in the complaint.” Id. at 563. To survive a motion to dismiss, “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “But

where the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged -- but it has not ‘show[n]’ -- ‘that the pleader is entitled to

relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

Pursuant to Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” The Court should “view the evidence in the

light most favorable to . . . the nonmovant, and draw all reasonable inferences in [his] favor without

weighing the evidence or assessing the witnesses’ credibility.” Dennis v. Columbia Colleton Med.

Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). Importantly, “the mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

While self-represented pleadings are liberally construed, see Erickson v. Pardus, 551 U.S.

89, 94 (2007), this Court maintains an “affirmative obligation . . . to prevent factually unsupported

claims and defenses from proceeding to trial.” Bouchat v. Baltimore Ravens Football Club, Inc.,

346 F.3d 514, 526 (4th Cir. 2003) (internal quotation marks omitted) (quoting Drewitt v. Pratt,

999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24

(1986)). “A party opposing a properly supported motion for summary judgment ‘may not rest

upon the mere allegations or denials of his pleadings,’ but rather must ‘set forth specific facts

showing that there is a genuine issue for trial.’” Id. (quoting Fed. R. Civ. P. 56(e)). A dispute of

material fact is only “genuine” if sufficient evidence favoring the nonmoving party exists for the

trier of fact to return a verdict for that party. Anderson, 477 U.S. at 249-50.

III. DISCUSSION

A. Defendants Frosh, Hill, and Harris

Title 42 U.S.C. § 1983 provides that “[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, ... subjects, or causes to be subjected, any citizen of the

United States ... to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable.” Thus, to state a claim for relief under § 1983, a plaintiff

must allege, first, the violation of a right secured by the Constitution or laws of the United States

and, second, that the alleged deprivation was committed or caused by a person acting under color

of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

In a suit arising under 42 U.S.C. § 1983, the doctrine of respondeat superior generally does

not apply and liability attaches only upon a defendant’s personal participation in the constitutional

violation. See Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985); see also Love-Lane v. Martin,

355 F.3d 766, 782 (4th Cir. 2004). A supervisory official cannot be held liable for the acts of a

subordinate unless the supervisor’s “indifference or tacit authorization of subordinates’

misconduct” can be deemed to have caused the injury to the plaintiff. Baynard v. Malone, 268

F.3d 228, 235 (4th Cir. 2001) (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984)). For

a supervisor to be found liable for such acts, a plaintiff must prove that (1) the supervisor had

actual or constructive knowledge that the subordinate was engaged in conduct that posed a

pervasive and unreasonable risk of constitutional injury to individuals like the plaintiff; (2) the

supervisor’s response to that knowledge was so inadequate as to show deliberate indifference to

or tacit authorization of the subordinate’s misconduct; and (3) there was an affirmative causal link

between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.

Id. (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)).

Although Defendants Frosh, Hill, and Harris are named in the caption of the complaint,

Cruse pleads no facts which substantiate their personal involvement in the alleged use of excessive

force by the JCI officers, nor does Cruse plead facts which would substantiate supervisory liability.

ECF No. 1. Simply put, even liberally construed, no set of facts in the complaint give rise to

§ 1983 liability against Frosh, Hill, and Harris. Thus, the Correctional Defendants’ Motion to

Dismiss, or in the Alternative, for Summary Judgment, construed as a Motion to Dismiss, is

granted in part, and Defendants Frosh, Hill, and Harris are dismissed from this action.

B. Defendants Sanni, Asuelimen, Abidogun, and Choutedjem

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.

Const. amend. VIII. This prohibition “protects inmates from inhumane treatment and conditions

while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). The Eighth

Amendment is violated when an inmate is subjected to “unnecessary and wanton infliction of

pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173

(1976)). To establish an Eighth Amendment violation, an inmate must establish both that the

prison official subjectively “acted with a sufficiently culpable state of mind” and that the injury or

deprivation inflicted was objectively serious enough to constitute a violation. Williams, 77 F.3d

at 761. On the subjective element, an inmate must show that the guards used force “maliciously

or sadistically for the very purpose of causing harm” rather than “in a good faith effort to maintain

or restore discipline.” Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quoting Whitley v. Albers, 475

U.S. 312, 320–21 (1986)). In assessing this element, a court should consider “(1) the need for the

application of force; (2) the relationship between the need and the amount of force that was used;

(3) the extent of any reasonably perceived threat;” and “(4) any efforts made to temper the severity

of a forceful response.” Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (quoting Whitley, 475

U.S. at 321).

As for the objective level of harm, a party asserting an Eighth Amendment excessive force

claim must demonstrate that the officer used a “nontrivial” amount of force. Wilkins v. Gaddy,

559 U.S. 34, 39 (2010). “[N]ot every malevolent touch by a prison guard gives rise to a federal

cause of action.” Id. at 37 (quoting Hudson, 503 U.S. at 9). Although inmates must show the

application of nontrivial force, an Eighth Amendment violation can occur even if that force did

not cause serious injury. Id. at 38 (“[A]n inmate who is gratuitously beaten by guards does not

lose his ability to pursue an excessive force claim merely because he has the good fortune to escape

without serious injury.”).

In the current case, Cruse alleges that, while handcuffed and thus posing no threat to the

JCI officers, he was taken to “the shack” and beaten. See ECF No. 1. Defendants, for their part,

deny that any beating occurred. In support thereof, they provide only the decision of the

administrative law judge following the IGO referral to the OAH for resolution.3 See ECF Nos. 56,

56-1, 56-3, 56-4. The Defendants could have, but failed to, provide any documentation maintained

by the institution regarding this matter such as grievance forms, Matters of Record, incident

reports, or camera footage. Similarly, they did not provide affidavits from any Defendant or other

witnesses. Thus, this Court has not been able to review any of the evidence relied upon by the

administrative law judge. Instead, what the Court is left with is the decision by the ALJ finding

that Cruse “failed to show, by a preponderance of the evidence, that he was beaten by DOC staff

on September 23, 2021 . . .” (ECF No. 56-3 at 10). However, the record before the Court also

contains Cruse’s verified opposition response maintaining that he was beaten by the JCI officers

and injured as a result. Further, Cruse puts forth his own record evidence, and identifies

inconsistencies contained therein, including slightly conflicting accounts of why the officers took

Cruse into the shack, outside the view of cameras, in the first place.

In light of the record before it, the Court finds summary judgment to be inappropriate. The

record advanced by the Correctional Defendants is sparse and fails to meet their burden of

demonstrating that there are no genuine issues of material fact present in this case. Where, as here,

the Correctional Defendants deny there was an application of force, and Cruse maintains that force

was applied, there exists a genuine dispute of material fact regarding whether the force was

applied, and if it was, whether it was done maliciously. The issue requires credibility

determinations not appropriate for resolution on summary judgment. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). Accordingly, Defendants’ Motion to Dismiss, or in the

3 “After preliminary review [by the IGO], if the complaint is not found to be wholly lacking in merit on its face, the

Office shall refer the complaint to the Office of Administrative Hearings.” Md. Code Ann., Corr. Servs. § 10-207

(West)

Alternative for Summary Judgment, construed as a Motion for Summary Judgement, is denied as

to Defendants Sanni, Asuelimen, Abidogun, and Choutedjem.

a. Qualified Immunity

The Correctional Defendants argue that they are entitled to qualified immunity. “Under

our precedents, officers are entitled to qualified immunity under § 1983 unless (1) they violated a

federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly

established at the time.’” Dist. of Columbia v. Wesby, 538 U.S. 48, 62-63 (2018) citing Reichle v.

Howards, 566 U.S. 658, 664 (2012). “‘Clearly established’ means that, at the time of the officer’s

conduct, the law was ‘sufficiently clear’ that every ‘reasonable official would understand that what

he is doing’ is unlawful.” Id. at 63 (citing Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

However, this defense is unavailing here both because the constitutional right was well-

established at the time of the incidents at issue and because there exists a material dispute of fact

regarding whether the conduct allegedly violative of plaintiff’s constitutional right actually

occurred. See Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005). While it is true that

qualified immunity is ordinarily determined at the summary judgment stage of litigation, see

Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003), the defense of “[q]ualified immunity does not,

however, override the ordinary rules applicable to summary judgment proceedings.” Willingham,

412 F.3d at 559, citing Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). As noted, there are

material facts in dispute in this case concerning whether defendants’ use of force violated

plaintiff’s constitutional rights. Thus, Defendants Sanni, Asuelimen, Abidogun, and Choutedjem

are not entitled to qualified immunity at this stage in the proceedings.

b. Eleventh Amendment

The Correctional Defendants also raise the argument that, to the extent Cruse brought suit

against them in their official capacities, the suit cannot proceed. ECF No. 56-1 at 13-14. In his

opposition response, Cruse clarifies that he sues the Defendants in their individual capacities. ECF

No. 60-2 at 1. The Eleventh Amendment to the Constitution immunizes state agencies and

departments from citizen suits for damages in federal court. See Pennhurst State Sch. and Hosp.

v. Halderman, 465 U.S. 89, 100 (1984). The Correctional Defendants are Maryland state

employees. Suits against agents of the state for acts taken in their official capacities are equivalent

to suing the state itself. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).

Accordingly, to the extent Cruse’s Complaint could be construed to raise claims against the

Correctional Defendants in their official capacities, those claims are barred by the Eleventh

Amendment., see Pennhurst, 465 U.S. at 100–01, and will be dismissed with prejudice. Claims

against Defendants Sanni, Asuelimen, Abidogun, and Choutedjem in their individual capacities

are permitted to proceed.

IV. MISCELLANEOUS MOTIONS

Two miscellaneous motions are pending at this time: Cruse’s Motion for Appointment of

Counsel (ECF No. 61), and Cruse’s “Motion Requesting Witnesses be Entered on Docket Fifth

Request” (ECF No. 64). The Court will address each in turn.

As to Plaintiff’s Motion to Appoint Counsel, a federal district court judge’s power to

appoint counsel under 28 U.S.C. § 1915(e)(1),4 is a discretionary one, and may be considered

where an indigent claimant presents exceptional circumstances. See Cook v. Bounds, 518 F.2d

779 (4th Cir. 1975); see also, Branch v. Cole, 686 F.2d 264 (5th Cir. 1982). There is no absolute

4 Under § 1915(e)(1), a Court of the United States may request an attorney to represent any person unable to afford

counsel.

right to appointment of counsel; an indigent claimant must present “exceptional circumstances.”

See Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Exceptional circumstances exist where

a “pro se litigant has a colorable claim but lacks the capacity to present it.” See Whisenant v.

Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Ct.,

490 U.S. 296, 298 (1989) (holding that 28 U.S.C. § 1915 does not authorize compulsory

appointment of counsel). As the Correctional Defendants’ Motion for Summary Judgment will be

denied as to Defendants Sanni, Asuelimen, Abidogun, and Choutedjem, the Court will appoint

counsel to represent Cruse and assist him with presenting his claims throughout the remainder of

this action.

Finally, Cruse moves the Court to place witnesses on the docket. ECF No. 64. Because

counsel will be appointed to assist Cruse from this point forward, the Motion is denied without

prejudice. Cruse may consult with his counsel once appointed to determine the best strategy for

pursuing his claims and presenting evidence when appropriate.

V. CONCLUSION

For the foregoing reasons, the Correctional Defendants’ Motion to Dismiss, or in the

Alternative, for Summary Judgment is granted in part, as to Defendants Frosh, Hill, and Harris,

and denied in part as to Defendants Sanni, Asuelimen, Abidogun, and Choutedjem. Frosh, Hill,

and Harris are dismissed from this action, and all claims against them are dismissed.

Plaintiff’s Motion for Appointment of Counsel is granted. ECF No. 61. Plaintiff’s “Motion

Requesting Witnesses be Entered on Docket Fifth Request” is denied without prejudice. ECF No.

64. A separate Order follows.

Date: July 22, 2024 _______/s/_______________

Stephanie A. Gallagher

United States District Judge