Free Opening Brief in Support - District Court of Delaware - Delaware


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Date: October 30, 2006
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Category: District Court of Delaware
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Case 1 :04-cv-01542-GMS Document 85-3 Filed 10/30/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Kevin Brathwaite, )
Plaintiff, i
v. g C.A. No. 04-1542~GMS
Thomas Carroll, Warden, et al., i Trial by Jury Demanded
Defendants. I
AFFIDAVIT OF JOE RICHARDSON
Joe Richardson, having been duly sworn according to law, deposes and
states as follows:
1. I am employed by the State of Delaware, Department of Correction
("DOC") at the Delaware Correctional Center (“DCC") Smyrna, Delaware as an
Institutional Investigator. Ihave held this position since February, 2001. Among my
responsibilities are investigating allegations of criminal offenses and misconduct in
addition to monitoring gang activity.
2. I make this affidavit based upon my personal knowledge. U
3. On December 16, 2004, at 9:45 AM I interviewed the plaintiff regarding
an incident which occurred in the DCC infirmary in the early moming hours of December
I6, 2004. The plaintiff alleged that he was "dead asleep" covered with a blanket on a
mattress on the floor when he felt some wet stuff on his face. Subsequently, plaintiff’s
face started to burn. The plaintiff alleged that "unknown correctional officers" lowered
the flap in his cell door and sprayed pepper spray through the opening. The plaintiff
stated th at he recognized the substance sprayed in his room as pepper spray as he had
been sprayed on a prior occasion The plaintiff stated that he never heard his
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Case 1:04-cv-01542—Gl\/IS Document 85-3 Filed 10/30/2006 Page 2 of 3
cell door flap open but heard it close.
4. During the investigation I examined plaintiff’s cell. On the left wall of the
cell there was a large stain which appeared to have been applied at fairly close range. If
the wall had been sprayed from a greater distance the substance would have dissipated
instead of reflecting a concentrated application. Additionally, the distance from the open
flap, the alleged entry point to the wall was measured at 67 inches or 5 feet and 7 inches.
At that distance, it is unlikely that a heavy concentration of spray could form. Also noted
was a complete lack of residue of any type on the inner flap of the door.
5. The plaintiff alleges that he was sound asleep on his mattress utilizing a
sole blanket for warmth in a room which the plaintiff described as very cold. The plaintiff
also admitted blocking the air vents due to the cold. The plaintiff’s blanket which he
claims was covering him had no substance consistent with that of other surfaces that had
been sprayed with capstun. Also, the quantity and area of the substance on the mattress
indicated the substance was sprayed from inside the room as there was no impairment of
the substance reaching the mattress. The entire mattress had been sprayed. Furthemiore,
the concentration of the substance on the mattress particularly where plaintiff’s head
would have lain should have had corresponding stains and residue on the floor; however,
there were none. Based on my examination of the plaintiff’s cell and my interview with
him, I concluded that the plaintiff himself sprayed his cell.
6. On this very same date, December 16, 2004, I also interviewed Gerron
Lindsey (“Lindsey") an inmate who was in the cell next to the plaintiff’s at the time of
the incident. Lindsey claimed there was a capstun incident right around shift change in
the early morning hours of December 16, 2004. Lindsey further alleged that he was
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"" " " ··Case·1:04>cv—015·42-GMS D0 ument 85-3 Filed 10/30/2006 Page 3 of 3 _
asleep ln bed when he heandthe laintiff “liellezing and cussing." Lindsey also claimed
than he heard the plaintiffs cell flap slam. The plelutlff yelled tu Lindsey to call the
nurse because he had been spra with cepanm. A few minutes later. CJD Ebwelle
anived and transfened plaintiff be medically treated. Three weeks later, on January 9,
2005. Lindsey netraeted his nt ef events and udxznitted that the plaintiff had sprayed
himself which ¢:c•t10b0rar.es the B4"d¤11C¢ found duxing my investigation.
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· Joe Richardson
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