McNair v. Bace

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

MICHAEL McNAIR, *

Plaintiff, *

v. * Civil Action No. DKC-23-365

BACE, Correctional Officer, *

Defendant. *

***

MEMORANDUM OPINION

Plaintiff Michael McNair filed the above-captioned civil rights action, pursuant to 42

U.S.C. § 1983, pertaining to his detention at the Montgomery County Correctional Facility

(“MCCF”). ECF No. 1. Mr. McNair then filed a court-directed Amended Complaint (ECF No.

5) against Defendant Bace, Correctional Officer. ECF No. 7. Officer Bace filed a motion to

dismiss (ECF No. 18) that the court denied and Mr. McNair was directed to file a second amended

complaint. ECF Nos. 28, 29.

On August 23, 2024, the court received Mr. McNair’s Second Amended Complaint (ECF

No. 34) and on August 26, 2024, the court received another complaint from Mr. McNair that was

docketed as a supplemental second amended complaint. ECF No. 35. The two documents contain

nearly identical information with a slightly different layout.

Officer Bace filed a second motion to dismiss which is pending. ECF No. 38. Mr. McNair

opposes the motion (ECF No. 43) and Officer Bace has replied. ECF No. 44. Officer Bace

concluded that the Supplemental Second Amended Complaint is the operative complaint in his

court filings (ECF No. 38 at 3) and the court agrees. The Supplemental Second Amended

Complaint is the operative complaint. ECF No. 35.

Having reviewed the submitted materials, the court finds that no hearing is necessary. See

Local Rule 105.6 (D. Md. 2023). For the reasons set forth below, Defendant Bace’s motion to

dismiss (ECF No. 38) will be denied and counsel shall be appointed to represent Mr. McNair.

I. Background1

On November 4, 2022, Mr. McNair was a pretrial detainee housed in the segregation unit

at MCCF. ECF No. 35 at 4, 8. In the early morning he was awakened by Correctional Officers

who directed him to come to his cell door to “cuff up” for routine weekly inspection by the

administration. Id. at 4. Mr. McNair cuffed up as directed and officers then escorted him out of

his cell for a pat down by officers. Id. During the pat down, two different officers went into Mr.

McNair’s cell and he advised them that his toilet was clogged and there were serious maintenance

issues. Id. at 5. The officers in his cell did not check the toilet, but instructed the other officers to

return him to his cell and they did. Id.

Later that day, Mr. McNair was discussing pending grievances with Deputy Warden

Kendra Jochum who advised him that after lunch he would be moved out of the segregation unit.

Id. at 5-6. During this discussion, Mr. McNair’s cell began to flood. Id. at 6. Deputy Warden

Jochum left his cell and moments later Officer Bace arrived and told Mr. McNair to cuff up. Id.

Officer Bace instructed Mr. McNair to cuff up with his hands in front, rather than in the back, so

that he could use his hands to pull his property bag into the next cell where he would be moved.

Id. at 6. Mr. McNair did as he was instructed, and Officer Bace applied the handcuffs “overly

tight” to his wrists. Id. at 7. Several times, Mr. McNair complained to Officer Bace that the

handcuffs were too tight, and his complaints were ignored. Id. Mr. McNair was directed to drag

his property bag to the next cell while cuffed and he complied with the order. Id.

1 Unless otherwise noted, the facts outlined here are those set forth in the Supplemental Second

Amended Complaint (ECF No. 35) and construed in the light most favorable to Mr. McNair.

Officer Bace left Mr. McNair in handcuffs locked in the cell with another inmate who was

uncuffed and closed the sallyport door on the cell. Id. 7-8. Mr. McNair states that putting him in

a cell with an uncuffed inmate is a high safety and security risk because he would be unable to

defend himself if necessary because he was handcuffed. Id. at 7.

Mr. McNair pressed the emergency call button in the cell but Officer Bace did not respond.

Id. at 7. Mr. McNair was left cuffed in the cell from twenty minutes to one hour and was in pain

due to the tight cuffs. Id. at 8. Officer Bace then came to the cell and removed the handcuffs. Id.

Mr. McNair had marks and bruises on his wrists and temporary numbness in both hands and

swollen fingers. Id. He asked Officer Bace if he could go to the medical department for treatment

and photographs and his requests were ignored. Id.

After lunchtime that same day, Mr. McNair was released from the segregation unit and

moved to another housing unit. Id. On arrival, Mr. McNair advised Officer Nguimdyo of the

“incident” and went to show her his hands but the temporary swelling had gone down and his

hands were no longer numb. Id. The handcuff marks were barely visible. Id. Officer Nguimdyo

provided Mr. McNair with a grievance form which he filled out and returned to her, and she

forwarded the form to custody and security. Id.

On November 14, 2022, Sergeant Brown, who is in charge of inmate grievances, spoke

with Mr. McNair in response to his grievance and forwarded the grievance to the next level. Id.

at 8-9. Mr. McNair has never received a response to the grievance. Id. at 9.

Officer Bace provides a copy of the grievance form with his motion, ECF No. 38-3,

asserting that the grievance is intrinsic to the Supplemental Second Amended Complaint and may

be considered. ECF No. 38-1 at 6. See Goines v. Valley Cmty. Services Bd., 822 F.3d 159, 164,

166 (4th Cir. 2016) citing Sec’y of State For Defence v. Trimble Nav. Ltd., 484 F.3d 700, 705 (4th

Cir.2007) (“While a 12(b)(6) motion focuses on the allegations of the complaint, it is well

established that a document attached to a motion to dismiss may be considered when evaluating a

motion to dismiss if the document was “integral to the complaint and authentic.”). Documents

may also be considered if they are “explicitly incorporated into the complaint by reference.”

Goines, 822 F.3d at 166 citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322,

(2007). The court will consider the grievance. In the grievance, Mr. McNair complains that

Officer Bace violated proper procedure when he handcuffed Mr. McNair in front instead of in back

and also that handcuffs were left on between 20 minutes to one hour before being removed. Id.

II. Standard of Review

In reviewing the amended complaint in light of a motion to dismiss pursuant to

Fed.R.Civ.P. 12(b)(6), “the court should accept as true all well-pleaded allegations and should

view the complaint in a light most favorable to the plaintiff.” Mylan Laboratories, Inc. v. Matkari,

7 F.3d 1130, 1134 (4th Cir. 1993). 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[.]”

Fed.R.Civ.P. 8(a)(2)); 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 that “a plaintiff’s obligation to provide

the ‘grounds’ of his ‘entitle[ment] 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) (quoting Fed.R.Civ.P. 8(a)). Nonetheless, the complaint does not need

“detailed factual allegations” to survive a motion to dismiss. Id. 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, 678 (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)).

III. Analysis

In his motion to dismiss, Officer Bace seeks dismissal under Federal Rule of Civil

Procedure 12(b)(6) arguing that: (1) Mr. McNair’s claim of excessive force must be dismissed for

failure to state a claim because his claim of injury is not brought in good faith; (2) in the alternative,

Mr. McNair’s injuries do not rise to a constitutional violation; and (3) Officer Bace is entitled to

qualified immunity. ECF No. 38-1.

A. Mr. McNair’s Claim of Injury is not Brought in Good Faith

Officer Bace asserts that Mr. McNair’s claim of physical injury is a fabrication of facts that

contradicts what he asserted in his Amended Complaint and he has not stated a claim for relief.

Id. at 8-10. For the following reasons, the court finds that Mr. McNair has stated a claim and

denies the motion to dismiss on these grounds.

Mr. McNair filed an initial complaint that was silent as to whether he suffered injury as a

result of the alleged conduct of Officer Bace. ECF No. 1. Mr. McNair named only the

Montgomery County Correctional Facility as a Defendant and complained of the duration of time

he was handcuffed and that proper procedures were not followed. Id. at 2. The court issued an

order directing an amended complaint to allow Mr. McNair to state if he suffered any injury and

to name a proper defendant. ECF No. 5-1. Mr. McNair then filed an Amended Complaint naming

Officer Bace as a Defendant in which he states “I was not physically but mentally injured… I

needed and received psychological treatment.” ECF No. 7 at 5.

Officer Bace then filed his first motion to dismiss arguing that the claim should be

dismissed because Mr. McNair “states only generally that proper procedures were not followed”

(ECF No. 18-1 at 7) and that “there is no allegation in the Amended Complaint that Officer Bace

exerted any excessive force against Plaintiff.” Id. at 8. In his opposition to the motion, Mr. McNair

responded that the handcuffs were not “to a degree of severe injury,” but they were “too tight” and

the handcuffs left marks on his wrists. ECF No. 25 at 3. Officer Bace replied that Mr. McNair

could not amend his complaint through his response to the motion to dismiss, ECF No. 27 at 2,

and the court agreed. ECF No. 28 at 5. See S. Walk at Broadlands Homeowner’s Ass’n v.

OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (“parties cannot amend their

complaints through briefing.”).

In light of Mr. McNair’s status as a pro se litigant and his indication that his handcuffs

were applied too tightly, the court dismissed Officer Bace’s motion without prejudice and granted

Mr. McNair leave to file a second amended complaint to provide necessary information to state a

claim for relief. Id. at 8. Mr. McNair was specifically directed that in the second amended

complaint, he should provide necessary facts to support his claim that Office Bace used excessive

force by keeping him in handcuffs in his cell and by applying handcuffs too tightly. Id. He was

directed to include allegations indicating if he made complaints about the handcuffs being too tight

before they were removed, any injuries he suffered, if he requested medical care for any handcuff

injuries, and what, if any, medical care he received. Id. Mr. McNair was directed to provide the

dates and times these events took place, to whom he made any complaints or requests, and the

nature of any response he received. Id.

Mr. McNair’s Supplemental Second Amended Complaint is directly responsive to the

court’s order. The court already decided after reviewing his initial Complaint, Amended

Complaint, and response to the motion to dismiss, that he should be provided with another

opportunity to allege the facts pertaining to the tightness of the handcuffs and any injuries he

suffered. He has now done so.

When considering a Rule 12(b)(6) motion to dismiss, a court must take the factual

allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.

King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016). The court does not find that Mr. McNair

has acted in bad faith in alleging physical injury and Officer Bace’s motion to dismiss on this

ground is denied.

B. Failure to State a Constitutional Claim

Officer Bace asserts that because Mr. McNair alleges only de minimis injury and he is

barred from bringing this action under the Prisoner Litigation Reform Act (“PLRA”). ECF

No. 38-1 at 10-11. He argues that under the PLRA, a prisoner may not bring a civil action for

mental or emotional injury without a prior showing of physical injury. Id. The court disagrees.

Officer Bace relies on a statutory provision titled “limitation on recovery” which states that

a prisoner may not bring a civil action for “mental or emotional injury suffered while in custody

without a prior showing of physical injury or the commission of a sexual act.” 42 U.S.C. §

1997e(e). This provision does not bar a plaintiff from bringing an action; it limits the recovery to

nominal and punitive damages, while barring compensatory damages. See Johnson v. Morgan,

No. CV CCB-19-3035, 2021 WL 2936319 (D. Md. July 13, 2021) citing Wilcox v. Brown, 877

F.3d 161, 169-70 (4th Cir. 2017) (additional citation omitted). Mr. McNair has not specified the

type of damages he is seeking, but rather a monetary amount which in turn would encompass both

nominal and punitive damages. ECF No. 35 at 5. See Wilcox, 877 F.3d at 169 (citation omitted).

See also Fed. R. Civ. Pro 54(c) (a final judgment should grant the relief to which each party is

entitled, even if the party has not demanded that relief in its pleadings). Mr. McNair’s claim for

excessive force is not barred by the PLRA.

To the extent that Officer Bace otherwise asserts that Mr. McNair fails to state a claim due

to de minimis injury, the court again disagrees. As the court previously noted, Mr. McNair is a

pretrial detainee and his claim is properly considered under the Fourteenth Amendment’s due

process clause. ECF No. 28 at 5. See Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (quoting

Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)) (“the Due Process Clause protects a pretrial

detainee from the use of excessive force that amounts to punishment[.]”). The Fourteenth

Amendment due process clause protects pretrial detainees from “governmental action” that is not

“rationally related to a legitimate nonpunitive governmental purpose” or that is “excessive in

relation to that purpose.” Short v. Hartman, 87 F.4th 593, 608-609 (4th Cir. 2023), cert. denied,

No. 23-1097, 2024 WL 2883766 (U.S. June 10, 2024) citing Kingsley, 576 U.S. at 398 (quoting

Bell v. Wolfish, 441 U.S. 520, 561 (1979) (internal quotation marks omitted).

To state a claim of excessive force in violation of his Fourteenth Amendment rights as a

pre-trial detainee, Mr. McNair may prevail upon evidence that “the use of force is deliberate – i.e.,

purposeful or knowing.” Kingsley, 576 U.S. at 395. Mr. McNair’s claim need not detail a

subjective element of his alleged assailant’s subjective state of mind, “a pretrial detainee must

show only that the force purposely or knowingly used against him was objectively unreasonable.”

Id. at 396-97. Objective reasonableness turns on the “facts and circumstances of each particular

case.” Id. at 397 (quoting Graham, 490 U.S. at 396 (1989)). To determine if the force used was

reasonable, the following factors may be considered: “the relationship between the need for the

use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by

the officer to temper or to limit the amount of force; the severity of the security problem at issue;

the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.”

Kingsley, 576 U.S. at 397.

Taking the Kingsley factors into account, the court finds that Mr. McNair has adequately

stated a claim that Office Bace used excessive force. Kingsley, 576 U.S. at 397. Mr. McNair has

alleged that Officer Bace unnecessarily locked him in a cell without removing his handcuffs

although Mr. McNair did not resist Officer Bace’s instructions, act in a threatening manner, or

pose a security risk. Mr. McNair alleges that the handcuffs were tightly applied, he complained to

Officer Bace, and there was no effort by Officer Bace to loosen or remove the handcuffs. Further,

he alleges that he was kept in this condition for an extended period of time without justification.

Mr. McNair’s has stated a claim for use of excessive force in his Supplemental Second Amended

Complaint.

C. Qualified Immunity

Officer Bace asserts that if Mr. McNair has stated a viable claim, he is entitled to qualified

immunity because it was not clearly established at the time of the incident that his actions

constituted an excessive use of force. ECF No. 38-1 at 14. The United States Court of Appeals

for the Fourth Circuit has recently summarized the qualified immunity analysis.

Officers are immune from liability “insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have been known.” (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added). This standard

leads to two questions: (1) whether any right was violated, (2) whether

that right was “clearly established” at the time of the alleged violation. See

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).

“[T]o conclude that a right is “clearly established,” we must inquire whether

an objectively reasonable officer in the defendant's shoes would

“understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). We examine the alleged right at a

“high level of particularity.” Edwards v. City of Goldsboro, 178 F.3d 231,

251 (4th Cir. 1999). . . But, by the same token, a rejection of excessive

generality does not equate to an insistence on exactitude. Few situations are

exactly the same and to require that plaintiffs produce identical precedent

would transform qualified immunity into a grant of absolute immunity for

defendants.

Somers v. Devine, 132 F.4th 689, 696 (4th Cir. 2025).

As discussed, the court finds that Mr. McNair has adequately alleged a violation of a

constitutional right and the first prong of the qualified immunity analysis is met. The second prong

requires the court to determine whether Officer Bace should have known that his conduct

constituted an excessive use of force at the time his actions took place. Officer Bace does not

provide a fact based legal analysis to support his assertion that he is entitled to qualified immunity.

The Fourth Circuit has held that the use of excessive force analysis is the same under both

the Fourth and the Fourteenth Amendment as the standard for both is “objective

unreasonableness.” SeeﻟSomers v. Devine, 132 F.4th at 698 citing Lombardo v. City of St. Louis,

594 U.S. 464, 466 n.2 2021 (“Whatever the source of law, in analyzing an excessive force claim,

a court must determine whether the force was objectively unreasonable in light of the ‘facts and

circumstances of each particular case.’ ” (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397

(2015)). The court finds that at the time Mr. McNair was restrained there were sufficient Fourth

Circuit cases putting Officer Bace on reasonable notice that his conduct was unlawful. See

Atkinson v. Godfrey, 100 F.4th 498, 506 (4th Cir. 2024)( citing Edwards v. City of Goldsboro,

178 F.3d 231, 251 (4th Cir. 1999) (to determine if the right was clearly established, the court is to

consider decisions of the Supreme Court, the Circuit Court of Appeals, and the highest court of

the state in which the case arose).)

In Fourth Amendment excessive force cases, the Fourth Circuit has consistently applied

the Graham factors in determining if there has been an excessive use of force, specifically “an

officer must carefully measure the force used to respond to the particulars of a case including the

wrongdoing at issue, the safety threat posed by the suspect, and any attempt to evade arrest or

flee.” E.W. by & through T.W. v. Dolgos, 884 F.3d 172, 186 (4th Cir. 2018)( citing Graham, 490

U.S. at 396.) E.W. involved the handcuffing of a calm and complaint child at school resulting in

de minimis injury when there was probable cause for arrest. The Fourth Circuit granted qualified

immunity to the officer holding it was not clear at the time that the officer’s use of handcuffs would

be considered excessive force, and stated “our excessive force holding is clearly established for

any future qualified immunity cases involving similar circumstances.” Id. at 186-187.

In Brooks v. McKimmie, No. CV DLB-23-0208, 2025 WL 1018882, at *13 (D. Md. Apr.

4, 2025),كthe district court denied qualified immunity to the defendant based on well-established

Fourth Circuit caselaw that “it is objectively unreasonable for a police officer to apply additional

force once an unarmed suspect is secured.” In doing so, the court cited to Kane v. Hargis, 987 F.2d

1005, 1008 (4th Cir. 1993) (per curiam) (it was clearly established that once a suspect is pinned to

the ground the officer should not use additional force); Valladares v. Cordero, 552 F.3d 384, 390–

91 (4th Cir. 2009) (it was clearly established that an officer could not use “unnecessary, gratuitous,

and disproportionate” force after the officer had the plaintiff “under full control.”); and Bailey v.

Kennedy, 349 F.3d 731, 745 (4th Cir. 2003) (it was clearly established that the officers could not

use force after the plaintiff was secured face down on the floor in handcuffs and leg restraints,

when the plaintiff had not committed a crime and he was not a danger to himself or others). See

also Pegg v. Herrnberger, 845 F.3d 112, 120 (4th Cir. 2017) (qualified immunity granted where

suspect resisted arrest causing the officer to take him to the ground to be handcuffed resulting in

de minimis injury).

The facts alleged in the operative complaint are that Mr. McNair was compliant with being

handcuffed by Officer Bace and was moved to another cell without resistance. Further, Mr. McNair

had not committed any wrongful act, and posed no threat whatsoever. Although Mr. McNair was

securely locked in a cell, Officer Bace ignored Mr. McNair’s complaints that the handcuffs were

applied too tightly, failed to loosen or remove the handcuffs, kept him in the cell with another

inmate who was not handcuffed possibly creating a security risk, and held him in this manner for

a period of time, causing some level of discomfort and injury. The court concludes that Officer

Bace is not entitled to qualified immunity as he was on reasonable notice that his actions in holding

Mr. McNair in this manner under the circumstances alleged were unlawful. This defense will be

denied.

D. Appointment of Counsel

The court has determined that Mr. McNair’s excessive force claim may proceed. A review

of his filings to date indicate that the case warrants relevant legal analysis on the set of facts

presented and that there are likely to be factual disputes that warrant discovery. “[D]istrict courts

have discretion to appoint counsel in civil cases and abuse that discretion by declining to do so

where the case of an indigent person presents exceptional circumstances.” Jenkins v. Woodard,

109 F.4th 242, 247 (4th Cir. 2024) (citation and quotations omitted). Exceptional circumstances

exist if (1) plaintiff has a “colorable claim” and (2) considering the claim’s objective complexity

and his subjective abilities, plaintiff “lacks the capacity to present it.” Id. (citation and quotations

omitted).

Based on Mr. McNair’s filings to date, and the nature of his claims, the court determines

that exceptional circumstances exist that warrant the appointment of an attorney to represent him

under § 1915(e)(1).

IV. Conclusion

For the foregoing reasons, Officer Bace’s motion to dismiss is denied. Officer Bace will

be directed to answer the Supplemental Second Amended Complaint. Counsel will be appointed

to represent Mr. McNair. A separate Order follows.

June 5, 2025 __________/s/__________________

DEBORAH K. CHASANOW

United States District Judge