Cavey v. Levine

• Decision Date: 24 May 1977
• Docket Number: Civ. No. Y-76-1790.
• Citation: 435 F. Supp. 475
• Parties: Frank CAVEY v. Mark LEVINE, Commissioner, and Ralph L. Williams, Warden and Marcellus Moore, Assistant Warden, and Lieutenant Mooney.
• Court: U.S. District Court — District of Maryland

435 F. Supp. 475

Frank CAVEY v. Mark LEVINE, Commissioner, and Ralph L. Williams, Warden and Marcellus Moore, Assistant Warden, and Lieutenant Mooney.

Civ. No. Y-76-1790.

United States District Court, D. Maryland.

May 24, 1977.

COPYRIGHT MATERIAL OMITTED

Frank Cavey, pro se.

Stephen B. Caplis, Asst. Atty. Gen., Baltimore, Md., for defendants.

MEMORANDUM AND ORDER

JOSEPH H. YOUNG, District Judge.

The plaintiff, Frank D. Cavey, currently an inmate at the Maryland Correctional Institute, has filed a civil rights action, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343, alleging violations of his constitutional rights by the defendants while the plaintiff was an inmate at the Maryland House of Correction during September and October 1976. The plaintiff has alleged violations of his rights under the First, Eighth and Fourteenth Amendments of the United States Constitution and has requested declaratory relief, compensatory and punitive damages for the disciplinary actions taken against him following the sending of a letter to the Warden and Assistant Warden of the institution, defendants Williams and Moore, respectively. The defendants have moved for summary judgment and the plaintiff has cross-filed for summary judgment, indicating in his motion that he wished to abandon his request for a jury trial and would accept this Court's ruling on matters of fact and law which pertain to his case.

I. Undisputed Facts

Plaintiff Cavey was in a cell in the Special Confinement Area SCA of the Maryland House of Correction on the night of September 8-9, 1976. At approximately 2 a. m., another inmate, Thomas McMahon, who was also confined in SCA, began vocalizing in an agitated manner. This inmate had attempted to hang himself earlier that night. At approximately 5 a. m., McMahon killed himself in his cell. The plaintiff states that McMahon climbed to the top of his cell and threw himself headfirst onto the concrete floor; the defendants do not dispute this fact in their motion for summary judgment.

Later during the day of September 9, 1976, the plaintiff wrote a letter to the Assistant Warden, defendant Moore, a facsimile of which accompanied the defendants' motion for summary judgment, which reads Mr. Moore Sept. 9

No Compassion What So Ever

On 2 o'clock Wensday morning a inmate in a suicide cell begs Ltd. Mooney for a few minutes of his time. It is quite quiet and you can here what he is saying. "Ltd. Mooney can I see you? can I see you Ltd. Mooney? can I see you Ltd. Mooney? Please. Don't leave Ltd. Mooney. Please don't leave. Please let me see you for just a minute. By the way the inmate is talking you realize he is in a state of acute depression and may have any number of mental problems. The suicide cell is used for an observational cell for inmates who are going through various stages of depression. But does Ltd. Mooney give this man one minute of his time. No. No compassion what so ever.

At 5 o'clock on this same morning the inmate climbs the bars in his cell, dives to the floor, crushes his skull, and dies. What a waste. What a shame. But does anyone care? If Ltd. Mooney would have given this man one minute of his time is it possible this tragedy could have been avoided? Who knows.

I think it is about time the state should take the suicide cells into consideration. If the cells where padded a life could not be taken. Maybe the state does not what want to pay the money to pad a cell? Maybe they feel a human life is not worth the money?

You can either have this printed in the New Letter or the New Post and Sunday Sun. The choice is yours. If it is not printed in the News Letter I will also send a copy of this to the inmates family.

Respectfully Frank Cavey # 123-599 S.C.A. # 45

A similar letter, identical except for minor grammatical changes, was addressed and sent to "Mr. Williams" defendant Ralph Williams, Warden of the Maryland House of Correction. Williams forwarded a copy of the letter he had received to Major Brown, Shift Commander and to a "Mr. Byrne AW.S&C" with the notation:

Interview, investigate, & take the action necessary & appropriate

False info. & what other violations of rules & regulations. Copy of Williams' letter from Cavey with affidavit of Marlin F. Bachtell, Assistant Superintendent II of Maryland Correctional Institution indicating its authenticity, filed as an exhibit by the defendants at the request of the Court. Defendant Moore forwarded a copy of the letter he had received from Cavey to Major Leon Brown, with the notation in his handwriting at the top "Please look into this matter". Affidavit of Moore regarding handwriting and copy of letter as defendant's exhibit, filed in this case.

On September 14, 1976 Major Brown referred the letter to Richard E. Vernon, Lieutenant, for an investigation. Vernon interviewed Cavey and submitted a report to Major Brown on September 15, 1976 Exhibit to defendants' motion for summary judgment. The report indicates that Cavey felt strongly about the incident, intended the letter to bring the condition of the suicide cells to the administration's attention and not to make charges against Lieutenant Mooney and that Cavey had not altered his story about what had occurred. The report refers to another report of the incident, filed by Lt. Mooney on September 9, 1976. Exhibit filed with defendants' motion for summary judgment. The report notes that Thomas McMahon was, at 12:10 a. m. September 9, 1976, attempting to hang himself with his bedsheets, that Mooney was called to the scene at that time and tried to calm the inmate down but that the inmate stated he did not want to talk and would talk to Mooney "later on". Mooney reported that he complied with this request and the inmate appeared to "relax to some extent". The last sentence of the Mooney report reads:

This conversation took place approximately 2:00 A.M. and on both occasions Sgt. Wharrey was instructed to keep this man under close observation at both times.

This sentence appears to have been typed at a different time than the rest of the report-the ribbon quality is darker and the line alignment altered. It appears that the officer typed in his name at the bottom of the page when he made the first entries in the report. It is unknown when the final sentence was added.

Lt. Vernon's report to Major Brown goes on to state Vernon's feeling that Cavey could not have heard what, if anything, Mooney said to McMahon. Cavey disputes this, stating that the SCA was like an "echo chamber". Vernon mentions that Cavey may have been sleeping between 2 a. m. and 5 a. m. when the inmate committed suicide. This assertion does not put into dispute any of Cavey's allegations in his letter. Vernon ends his report by asking Brown to advise whether an infraction report should be submitted for Cavey's having made allegations against Lt. Mooney and his "threat of sending the letter to the inmate's family if the letter is not published in the Newsletter". Vernon suggests three rules infractions: disobeying an order, use of threatening language and giving false information.

Apparently Brown indicated approval, for charges on each of these rules were brought against Cavey, labelled "major" infractions and submitted to the Adjustment Team. Cavey appeared at the hearing, where Lt. Vernon gave a statement of the facts, referring the Adjustment Team to the copy of Warden Williams' letter from Cavey with the Warden's "comments". The record of the questions asked Cavey and his replies indicates that Cavey affirmed that he had told "them" that if the letter was not published he would "send it to the man's family". Cavey re-asserted his version of the facts and his belief that he had given truthful information. The Classification Adjustment Team report and work-sheets are exhibits in the case, filed with the defendants' motion for summary judgment. The team found Cavey guilty of use of threatening language and disobeying an order. (Rules 3 and 1) He received 15 days in segregation as punishment.

Lieutenant Vernon has provided information about the three rules involved in the charge against Cavey. Letter of Vernon to John R. Byrne, January 17, 1977, submitted as an exhibit at the Court's request. Vernon explains that upon being found guilty of breaking any prison rule or regulation, the inmate is considered to have "disobeyed" an order, and broken Rule 1. Vernon's comments on the substantive violations read as follows:

Violation #3. "Use of threatening Language"

This violation was based on the contents of Cavey's letter where in fact he said he would submit this false episode to the newspapers and send the letter to the inmate's family. This statement was enterpreted as a threat of action if certain demands were not met. Namely, padded cells be placed in the Special Confinement Area. If such a false episode is submitted to the civilian news media as well as the inmates newspaper, it could lead to bad publicity for the institution and perhaps if read by the inmates would produce unrest among the general population.

Violation # 22. "Giving false Information"

This violation was based on Cavey's statement that Lt. Mooney did nothing for the suicidal inmate, wheras it was found and documented that Lt. Mooney did in fact, talk to the inmate and then take precautionary measures.

In the letter Vernon confirms that Warden Williams' comments on Cavey's letter were submitted to the Adjustment Team at the same time as the infraction report.

II. The Plaintiff's Legal Claims

As clarified in his cross motion for summary judgment, Cavey claims that his right of freedom of speech was violated when he was punished for exercising that right by being sent to "lock up" for fifteen days. He asserts this also constitutes cruel and unusual punishment and a violation of his due process rights. In an earlier document submitted in this case, Cavey also argued that a finding of guilty of disobeying an order "because he is found guilty of...