Burrell v. Sowers
| Decision Date | 22 February 2012 |
| Docket Number | CIVIL ACTION NO. PJM-09-1038 |
| Parties | BENORD ANGELO BURRELL, #156-633 Plaintiff v. WARDEN RODERICK R. SOWERS SECRETARY GARY D. MAYNARD COMMISSIONER OF CORRECTIONS J. MICHAEL STOUFFER FORMER WARDEN RODERICK R SOWERS ASSISTANT WARDEN KEITH LYONS FORMER WARDEN JOHN A. ROWLEY ASSISTANT WARDEN RICHARD GRAHAM LT. DAMON THOMAS PSYCHOLOGIST DR. JAMES K. HOLWAGER COUNSELOR BRUCE LILLER CASE MANAGEMENT SPECIALIST BRYAN HOFFMAN SGT. THOMAS SIRES. LT. RONALD DICKENS CAPTAIN GERALD AMBROSE CASE MANAGEMENT MANAGER ROBERT MILLER Defendants |
| Court | U.S. District Court — District of Maryland |
Pending are Defendants' Supplemental Motion to Dismiss or for Summary Judgment and Plaintiff's self-represented opposition. ECF Nos. 40 & 43. The case is ripe for dispositive review.1 Upon review of papers and exhibits filed, the Court finds an oral hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2011).
As previously recounted by the Court, Plaintiff alleges that on December 31, 2007, he was removed from Roxbury Correctional Institution (RCI) general population and placed on administrative segregation. He claims he was served with a notice, but was not given an opportunity to be heard. ECF No. 1. On January 17, 2007, Plaintiff was transferred to the Special Management Unit ("SMU") of the North Branch Correctional Institution ("NBCI") without notice and without a chance to contest the allegations used to place him on SMU.
He claims that as of the filing date of his complaint he had not been given a written factual basis for his placement on SMU, instead receiving vague explanations that his placement occurred because he is a threat to institutional security. Id. Added to these initial due process claims2 is Plaintiff's assertion that the conditions of SMU are atypical and his assignment is tantamount to indefinite placement on isolated confinement combined with the confiscation of property and the revocation of all privileges, except one-hour of "fresh air" per week and twice-a-week showers. Id. Plaintiff also complains that while on SMU he is subject to a behavioral management program called the Quality of Life Program ("QLP") which allows for inmates to achieve one of six "levels," subject to the "whims and mercy" of SMU officers and levels committee. Id. He claims that he has remained on the intake level since his arrival at NBCI until participation in the QLP was deemed "voluntary" and he was transferred to administrative segregation, where the conditions remain as harsh as those imposed at the intake level. Id.
Plaintiff also complains that Division of Correction directives ("DCD")3 permit his placement in such conditions for being "directly involved or associated with violent behavior." He complainsthat these directives are overly broad and have no criteria, process, or description defining who will fall into the category. Id. Plaintiff further alleges that the directives were adopted in violation of the Maryland Administrative Procedure Act ("APA"), which requires that regulations subject to amendment or modification be subject to public notice and comment. Id.
Plaintiff further raises Fourteenth and Eighth Amendment violations, claiming that he is being treated differently than other inmates classified to administrative segregation and that the conditions of his SMU cell assignment subject him to cruel and unusual punishment.4 In addition, he claims his forced participation in the QLP violates his First Amendment rights. He states that if he does not want to participate in the psychological treatment, he will remain in solitary confinement without regard to his adjustment history. Id. Plaintiff claims that DOC directives and standards grant him the right to refuse the QLP.
Plaintiff further asserts that he was denied adequate medical care in that his prescription glasses and asthma medication were denied him upon his transfer to NBCI. He further claims that the air quality on SMU is unhygienic, causing him harm. Id.
Defendants assert that Plaintiff is a verified member of the Black Guerilla Family ("BGF") prison gang, and is responsible for leading two prison disturbances.5 ECF Nos. 19 & 40. The most recent disturbance occurred on December 30, 2007, when RCI experienced three fights occurring simultaneously. In each of the three fights BGF members assaulted "Bloods." ECF No. 19, Ex. 1, ECF No. 40. The following day Plaintiff was assigned to administrative segregation at RCI pendinginvestigation into his role in the fights. Plaintiff received written notice of placement on administrative segregation. Id. On January 3, 2008, a SMU screening form was completed recommending Plaintiff be reassigned to the NBCI SMU because he Id., Ex. 2. Plaintiff was transferred to NBCI's SMU QLP on January 18, 2008. Id., Ex. 3.
Prior to his transfer from RCI, Plaintiff's property was inventoried. ECF No. 19, Ex. 8. On January 28, 2008, Plaintiff filed an ARP indicating his eyeglasses were taken during his intake at NBCI. He also claimed his asthma medication had been taken. Id., Ex. 9. Plaintiff withdrew the ARP on February 6, 2008, indicating he had received half of his medication on February 2, 2008, and all of his medication on February 6, 2008. Id., ECF No. 1. On February 22, 2008, Tiffany Bennett, RN sent a memorandum to Lt. Dolly who was investigating Plaintiff's ARP advising that Plaintiff was seen by Dr. Djhanmir on January 28, 2008, his blood pressure and pulse were within normal limits, his medications were reordered, and he was referred to the optometrist. Id. It was further noted that Plaintiff's eyeglasses should have been with his personal property but nonetheless he had been scheduled to see the optometrist. Id. He received new eyeglasses on April 29, 2008. Id., Ex. 10.
Defendants provide an abundance of documentation regarding the implementation of and revisions to the QLP program at NBCI, which was first implemented in January of 2007, and underwent several changes prior to official start on May 2, 2007.6 Id., Ex. 5 and 6. The purpose ofthe program was modified in July of 2007 in response to a number of gang-related incidents of violence in correctional facilities. The criteria for placement in the program are that the individual has (i) exhibited behavior that threatens the security of the institution or (ii) has influenced others to engage in conduct that is a threat to security. The behavior that forms the basis for placement in the program must be documented. Id.
Defendants state that during this time period several inmates deemed to be the most serious risk were transferred to NBCI and admitted into the QLP. Id. Once confined at NBCI, the emergency transfers received a case-by-case review and inmates with little to no documentation to support the allegation of their threat to the security of the institution were transferred out of NBCI. NBCI case manager Cassidy developed the SMU admission form to examine the documentation and evaluate each placement to ensure that the assignments were appropriate. Id.
On January 31, 2008, Plaintiff underwent his first QLP Behavior Management Plan ("BMP") evaluation. Id., Ex. 7. The QLP committee agreed to keep him at the intake (ground) level due to his refusal to participate in the program.7 Id. Plaintiff received monthly reviews where it was recommended he remain at the intake level due to his continued refusal to participate in the program. Id. In April of 2008, however, the QLP was made voluntary, with persons opting not to participate in the program being removed from the intake level of the program and placed on administrative segregation. Id. In May of 2008, Plaintiff was classified as an administrative segregation inmate. He remained on administrative segregation until his return to general population in June of 2009. Id.
Defendants maintain that the Case Management Manual mandates that an inmate on the QLP intake level receives at least one shower per week. Defendants have provided Plaintiff's records of segregation confinement which indicate that Plaintiff received regular showers and was offered the allowable amount of out of cell recreation, although at times he declined same. ECF No. 40, Ex. 22,
In his first opposition, Plaintiff focuses on his claim that confinement on the SMU at NBCI constituted an atypical and significant hardship giving rise to a liberty interest. ECF No. 23. He states that he should have been accorded a due process hearing and notification of the factual basis for the charges against him. Id. Plaintiff complains that his stay in SMU was for an "indefinite" period of time, limited only by Defendants' discretion and completion of a BMP.8 He maintains that the SMU confinement constitute atypical and significant hardship under the cases of Wilkerson v. Austin, 545 U.S. 209 (2005) and Farmer v. Kavanaugh, 494 F.Supp.2d 345 (D. Md. 2007) because of the indefinite duration, extreme isolation and restrictions on the SMU, and his inability to hold a job which would prevent him from being considered for parole.9 He claims that he is entitled to process that provides him fair notice of the factual reasons for his assignment, an opportunity to respond, and an administrative decision which provides him a short statement of the reasons for the decision. Id. at pps. 17-19. Plaintiff argues that Defendants have failed to come forward with evidence justifying his placement on NBCI's SMU or on administrative segregation. He claims, for the first time in his supplemental opposition, that he was targeted for being a member of the Nation of Islam and that the pseudonym he uses, "Shabazz," is not evidence of his membership in the BGF but rather is used by him due to his membership in...
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