Campbell v. Cushwa

• Decision Date: 31 August 2000
• Docket Number: No. 1579,1579
• Citation: 133 Md. App. 519,758 A.2d 616
• Parties: Russell J. CAMPBELL v. Patricia K. CUSHWA, Chairperson, et al.
• Court: Court of Special Appeals of Maryland

758 A.2d 616

133 Md. App. 519

Russell J. CAMPBELL v. Patricia K. CUSHWA, Chairperson, et al.

No. 1579, Sept. Term, 1998.

Court of Special Appeals of Maryland.

August 31, 2000.

Russell J. Campbell, Westover, for appellant.

Gloria Wilson Shelton, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellees.

Submitted before HOLLANDER, KENNEY and THEODORE G. BLOOM (Retired, Specially Assigned), JJ. HOLLANDER, Judge.

This appeal arises from a suit filed on July 13, 1998, in the Circuit Court for Somerset County, by Russell J. Campbell, appellant, pro se, against Patricia K. Cushwa, Chair of the Maryland Parole Commission; Richard A. Lanham Sr., Commissioner of the Division of Correction ("DOC"); and Melanie C. Pereira, former Deputy Commissioner of Corrections, appellees. Appellant, a prison inmate, alleged that, in retaliation for lawsuits, grievances, and administrative complaints filed by him, appellees repeatedly refused to decrease his security classification or grant parole, in violation of his constitutional rights. Relying on 42 U.S.C. § 1983 (1994, Supp. III 1997), he sought declaratory, injunctive, and monetary relief. In response, appellees filed a motion to dismiss for failure to state a claim. On September 3, 1998, the court granted appellees' motion. Thereafter, appellant noted this appeal. He presents two issues for our review, which we have condensed and rephrased:

Did the trial judge err in granting appellees' motion to dismiss for failure to state a claim?

For the reasons discussed below, we shall affirm.

FACTUAL SUMMARY

At the relevant time, appellant was an inmate incarcerated at the Eastern Correctional Institution ("ECI") in Westover, serving a forty-five year sentence for murder.¹ At the time of suit, he was classified as a medium security prisoner. In appellant's complaint, he alleged, inter alia, violations of the Ex Post Facto Clause, the Equal Protection Clause, and the Due Process Clause of the Federal Constitution, as well as the deprivation of other rights protected by the First, Fifth, Eighth, and Fourteenth Amendments. Appellant contended that appellees retaliated against him by repeatedly refusing to reduce his security classification, and he claimed that the "failure to lower his security status has... effectively denied him any form of meaningful opportunity for parole...."

According to appellant, he initially appeared before the "reclassification team" at Brockbridge Correctional Facility ("Brockbridge") on December 27, 1995, at which time the team recommended a decrease in appellant's security status to "Pre-Release Outside Detail." Although the reclassification was approved by the Warden, Pereira allegedly decided to "place the reclassification recommendation on hold," pending a March 1996 Parole Commission hearing. Appellant claimed that the Parole Commission was advised of Brockbridge's decision on March 18, 1996, and "gave [appellant] a 12 month (one year) set off with an additional recommendation of `outside' work detail and subsequent work release." Appellant again appeared before the "reclassification team" at Brockbridge on June 25, 1996, and received another favorable recommendation. Appellant further alleged that his case manager informed him that his reclassification had been "Approved." Appellant asserted, however, that, as a result of a grievance letter he submitted to Pereira on July 10, 1996, relating to matters he raised as early as 1994, his pre-release status was "Disapproved." Subsequently, he was transferred to the Jessup Pre-Release Unit and, on October 1, 1996, he appeared before the reclassification unit there. Although a reduction in classification was recommended, it was also "Disapproved."

Appellant further asserted that, because of an institutional infraction allegedly committed by him in October 1996, he lost his "Min., security status." When the adjustment infraction was reversed following an inmate grievance hearing, his security status was not restored. Consequently, appellant complained of appellees' "arbitrary and capricious abuse of discretion" in the "application of [DOC Directive] 100-1, ... totally without penological justification and in retaliation for his successful prior litigations and formal complaints." Moreover, in February 1998, after appellant appeared for a reclassification hearing, the reclassification team recommended minimum security status, but "the Commissioner's Office" did not approve the recommendation.

In his complaint, appellant stated that the DOC's "repeated denial of recommended security status ... has in fact increased the punishment for his criminal offense" and effectively denied him "any form of meaningful opportunity for parole in violation of the Ex Post Facto Clause." Further, he alleged that appellees' refusal to lower his security classification, "without psychological justification or reasonable public safety concerns, and the Parole Commission's refusal to recommend parole without lower security classification, each with knowledge of the other, amount[s] to `mental torture in violation of the Eighth and Fourteenth Amendment's prohibition on cruel and [un]ususal punishment.' "

As we noted, appellees moved to dismiss for failure to state a claim. They asserted that security classifications "in and of themselves do not constitute ex post facto punishment," and that the "speculative possibility" of a delay in appellant's prospect for parole does not constitute an ex post facto violation. Appellees also relied on the doctrines of sovereign immunity, public official immunity, and State employee immunity.

In his opposition to the motion, appellant alleged that he had a parole re-hearing in March 1998, at which time two Parole Commissioners recommended that he receive "a one (1) year set off with a recommendation of `work release and [l]esser security,' " but that the application of [DOC Directive] 100-508, which became effective in February 1997, made the Commissioners' decision "meaningless without [approval for] an appropriate delayed release" date. In appellant's view, these actions violated his " `clearly established' ex post facto rights."

PROCEDURAL BACKGROUND

In Maryland, the DOC is responsible for the operation of the State's penal system. See Md.Code (1999), §§ 3-203, 3-205 of the Correctional Services Article ("C.S."). DOC Directive ("DCD") 100-005.II.B provides: "In classifying inmates committed to its custody, the Division of Correction requires consideration of case data, inmate participation, and hierarchical review. Inmates shall be classified to the least restrictive security level consistent with their needs, public safety, and the safety and orderly operation of the Division's facilities." (Emphasis added). The DOC operates institutions in four security levels: Maximum, medium, minimum, and pre-release. DCD 110-12.IV.2.

As we noted, at the relevant time appellant was classified in the medium security category. Medium security institutions provide "secure housing ... for inmates who pose some risk of violence, may be escape risks, or have a limited history of institutional disciplinary problems." DCD 110-12.IV.2.b. According to DCD 110-12.2.c, "Minimum security facilities have fewer security features [than medium security] for inmates who pose less risk of violence or escape and who have a minimal history of disciplinary problems." "Pre-release" is the least restrictive category. DCD 110-12.2.d provides: "Pre-release security facilities have the fewest security features for inmates who present the least risk of violence and escape and who have a record of satisfactory institutional behavior."

The procedure for the reclassification of the security status of an inmate is contained in DCD 100-102, issued on January 16, 1996. An institutional score is used to determine whether a change in security is approved. See Appendix 1 to DCD 100-102.D.15. DCD 100-102.II.A provides: "An inmate who is in medium security and has an exclusion which would prohibit his/her reduction below medium security status ... shall have his/her annual review by completing [two sections] of the Security Reclassification Instrument, Form DC[D] 100-102a...." Appendix 2 to DCD 100-102 is entitled "Security Reclassification Instrument" (the "Instrument"). Section A of Appendix 2, entitled "Exclusionary Offender," lists seven categories of offenses: 1) Life/Death; 2) Rape/Sex Offense; 3) Child Abuse; 4) Escape History; 5) New Criminal Offense in DOC; 6) 4X 643B [²]; 7) No Pre-Release. Section B of the Instrument is entitled "Security Assessment." Section B, subsection 1 sets forth seven categories for which points are added to an inmate's score based on the "most severe current offense." In the "Security Assessment," points are also based on the inmate's total term of incarceration, type of detainer/documented pending charge, prior incarcerations, history of escape attempts, and history of violence. Pursuant to Section C of the Instrument, entitled "Institutional Assessment," an inmate who is not an exclusionary offender obtains an institutional score that is used to determine the recommendation for reclassification.

The Parole Commission has "exclusive power" to authorize parole. C.S. § 7-205(a); Code of Maryland Regulations ("COMAR") 12.08.01.18(A)(1). The warden reviews and signs all recommendations. DCD 100-102, App. 1 at D.22. An inmate sentenced to the custody of the DOC for the commission of a violent crime on or after October 1994 is not eligible for parole until the inmate has served the greater of one-half of the aggregate sentence for violent crimes or a quarter of the inmate's total aggregate sentence. C.S. § 7-301(c)(1) & (2). Further, "[r]elease on parole may not be granted unless recommended by a hearing examiner and approved by a parole commissioner...." COMAR 12.08.01.18(D)(1).

C.S. § 7-305 delineates the factors to be considered by the Commission in...