The American Civil Liberties Union of West Virginia (ACLU-WV) is representing in a federal lawsuit an incarcerated man who suffered injuries from being brutally pepper-sprayed while confined in his cell and posing no threat.

The incident, which occurred in September 2020, left Benjamin Marcum struggling to breathe and with severe burns and blisters on his legs, penis and feet. Marcum demanded to speak to a correctional officer’s supervisor, after the officer denied him use of a phone to contact his elderly grandmother. In his demand, Marcum requested to speak to a "gold badge" –– a term used in prisons to refer to a correctional officer's supervisor. The officer responded, “Here’s your gold badge,” and began spraying pepper spray under the door into Marcum’s poorly-ventilated cell. The officer continued to deploy the spray, which measures around 2,000,000 on the Scoville Heat Unit Index, despite Marcum’s pleas to stop.

Marcum initially filed the lawsuit on his own behalf in February, naming correctional officer Charles Moles as a Defendant. ACLU-WV Legal Director Loree Stark is representing Marcum in the case and Lydia Milnes with Mountain State Justice is co-counsel. Stark and Milnes today filed with the Court a notice they will be representing Marcum going forward in litigation, as well as a request to the Court to file an amended complaint on Marcum’s behalf. The amended complaint would add as a defendant MOCC Superintendent Donnie Ames.

“Administrators and officers are responsible for the basic safety and wellbeing of the people in state custody,” said Loree Stark, ACLU-WV legal director. “Officials and officers do not have a pass to violate a person’s constitutional right to be free from excessive force simply because that right belongs to a person who is incarcerated.”

Marcum is seeking a full review of use-of-force policies.

The lawsuit is in the U.S. District Court for the Southern District of West Virginia.