Dicks v. Bishop

Decision Date17 September 2021
Docket NumberCivil Action GLR-17-2554
PartiesANDREW JOSEPH DICKS, Plaintiff, v. WARDEN FRANK BISHOP, JR., et al., Defendants.
CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)


WARDEN FRANK BISHOP, JR., et al., Defendants.

Civil Action No. GLR-17-2554

United States District Court, D. Maryland

September 17, 2021



THIS MATTER is before the Court on the Motion to Dismiss, or in the Alternative, for Summary Judgment filed by Defendants Frank B. Bishop, Jr., Warden at the North Branch Correctional Institution (“NBCI”); Jeff Nines, NBCI Assistant Warden; Robin Wolford, Deputy Director of the Inmate Grievance Office (“IGO”); Jason Harbaugh, NBCI Captain; April Carr, NBCI Sergeant; Charlotte Zies, NBCI Correctional Case Management Specialist II (“CCMS II”); and Andrew McKinney, Irvin Murray, and Jeffrey Grabenstein, NBCI Correctional Officers (collectively, “State Defendants”).[1] (ECF No. 43). Former Commissioner Patricia A. Moore joins in the Motion. (See ECF No. 59).[2] The Motion is ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2021). For the reasons outlined below, the Court will grant State Defendants' Motion, construed as one for summary judgment.


A. Plaintiff's Allegations

Plaintiff Andrew Joseph Dicks is a state prison inmate presently housed at Jessup Correctional Institution, in Jessup, Maryland. (Jason Harbaugh Decl. [“Harbaugh Decl.”] ¶ 3, ECF No. 43-5). He alleges that while confined at NBCI in Cumberland, Maryland, the conditions of his confinement violated his rights under the First, Fourth, Eighth, and Fourteenth Amendments. (Compl. at 3, [3] ECF No. 1).[4]

1. Tampering with Plaintiff's Money Order

Dicks alleges that former mailroom employee Mary Jane Rose mishandled his mail, impeding his access to the courts. (Id. at 4-5). Specifically, he contends that in February 2015, Rose failed to properly handle a money order he sent to an attorney. (Id.). Afterward, Defendant Harbaugh interviewed Dicks and advised him that if he “signed off” on a Request for Administrative Remedy complaint (“ARP”), Dicks would be permitted to mail the money order back to the company where he bought it for a full refund. (Id. at 5). Dicks claims that Rose held the money order for an additional three months and when he asked for reimbursement for the money order, she refused because he was not the purchaser of the money order. (Id.). Dicks claims that Rose held his mail in retaliation and also claims that Rose violated Department of Public Safety and Correctional Services (“DPSCS”) mail policies. (Id. at 7, 10). He claims that his ARP and ARP appeal regarding this matter were dismissed. (Id. at 7-9). At the time he filed the complaint, Dicks was still awaiting reimbursement for the money order. He also claims that his criminal appeal was dismissed because his legal mail was not given to him. (Id. at 10).

2. Interfering with Plaintiff's Medical Care

Dicks claims that Defendants Nines, Wilt, and Bennett, along with Sergeant Jane Puffenbarger, interfered with his medical treatment for sores and lesions on his body including a recurring itchy facial rash. (Id. at 10). Dicks states that he needs to use beard trimmers more than once a month to assist him with managing his skin problem and to deter the rash, but Defendants denied his request to do so. (Id. at 11). He filed a grievance numbered ARP-NBCI-1512-15 regarding his need to use trimmers more frequently. (Id. at 11-15).

3. Injuries Arising from Sleeping Arrangements

Dicks asserts that Defendants Bishop and Nines have a policy that provides a chair to inmates in the general population to facilitate access to the top bunk, but denies such assistance to inmates assigned to disciplinary or administrative segregation (hereafter, “segregation inmates”). (Id. at 17). On July 4, 2015, Dicks slipped while accessing the top bunk, injuring his neck and shoulder and exacerbating a pre-existing back injury. (Id.). Dicks filed an ARP that was found to be meritorious in part, but the IGO dismissed his grievance. (Id.).

Dicks states that he was denied treatment following his injury, but that Bishop and Nines maintain that he declined treatment. (Id. at 18). Dicks counters that if he had declined treatment, he would have had to sign a Release of Responsibility form, which he did not do. (Id.). He alleges that Warden Bishop and Assistant Warden Nines allowed Wexford to violate his right to medical care under the Eighth Amendment. (Id. at 17-20).

4. Harm Relating to NBCI Bathroom Policies

Dicks states that inmates are denied access to a toilet and sink during their recreation time in the prison yard. (Id. at 20). He also complains that inmates must shower and use the telephone within the one hour and fifteen minute recreation period, causing him to “[forfeit] his [First Amendment] right to intimate association” with his family on the telephone and his right to shower if he wishes to use the toilet during that period of time. (Id.). Dicks further alleges that the failure to provide toilets and sinks in the prison yard violates his rights under the Eighth Amendment because he has a right to sanitary conditions. (Id.).

Dicks has an enlarged prostate that causes him both an inability to hold his urine and need to urinate frequently. (Id. at 22). On February 6, 2016, Dicks was denied access to a toilet and was told by an unidentified correctional officer that he would have to wait for the next shower change to “lock in” to use the toilet. (Id. at 21). Dicks asked if he could use the “holding cell” bathroom, which was empty and only fifteen feet away, but was refused. (Id.). As a result, Dicks “was forced to relieve himself in his pants.” (Id.). On August 11, 2016, Dicks urinated on himself again after being denied bathroom access. (Id. at 22). Dicks filed an ARP regarding these incidents, but it was denied, and the IGO dismissed his grievance. (Id. at 21-22).

5. Interfering with Plaintiff's Religious Practices

During Ramadan in 2016, correctional officers stopped Dicks and other inmates and told them they could not enter Ramadan services unless they allowed the officers to confiscate religious items which the officers deemed inappropriate, including “Message to the Black Man, ” “Theology of Time, ” and the “Final Call” newspaper. (Id. at 24). Dicks states the books are from the Nation of Islam and the literature was approved by prison administration for Muslim inmates to order. (Id.). Dicks filed an ARP regarding the issue, but Nines dismissed the claim, stating that Dicks brought “non-allowable items” to the service. (Id. at 25). The IGO also dismissed his grievance. (Id.). Dicks argues that the administration should not be permitted to tell Muslim inmates what they can study. (Id. at 24).

6. Improperly Labeling Plaintiff

Dicks states that he was “flagged” as a member of a security threat group (“STG, ” i.e., a gang) and Harbaugh had a “duty” to tell him he was flagged. (Id. at 26). He also states that Defendant Zies had a duty to inform him that he was the subject of a Prison Rape Elimination Act (“PREA”) alert. (Id.).

As to the STG designation, Dicks states that Harbaugh lied when he told the Commissioner's Office that he interviewed Dicks. (Id. at 27). Dicks states that he was flagged as a member of the Black Guerrilla Family (“BGF”) gang when he tried to move into a cell with a fellow inmate. (Id. at 26). Dicks filed an ARP regarding these issues on

February 11, 2016, which was found to be meritorious in part by the Commissioner. (Id. at 26-27). Dicks states that Harbaugh wrote a false report and that this was another example of the wardens ignoring meritorious ARPs. (Id. at 27). He claims the STG flag prevented him from contact visits with his children and grandchildren. (Id.). He also states that he is escorted through general population in handcuffs, which puts him at a risk of harm. (Id.). Dicks asserts that Harbaugh and Nines stated he was “screened” for PREA on May 14, 2014, which was the same day Dicks was given a Maximum II security classification without an interview. (Id. at 28). He states that Zies prepared a declaration relating to these dates in a separate lawsuit. (Id.). On May 5 and 6, 2015, Harbaugh and Nines agreed that Dicks should be removed from the behavioral management program and placed in Housing Unit 2 with the general population. (Id.). Dicks states that he has a liberty interest in not being labeled a rapist and that the label places his safety in jeopardy. (Id.). Dicks filed an ARP and a grievance with the IGO regarding this issue. (Id. at 28-29).

B. Defendants' Response

1. Tampering with Plaintiff's Money Order

On February 11, 2015, Dicks voluntarily withdrew ARP No. NBCI-0291-15, which related to NBCI mishandling his money order. (Harbaugh Decl. ¶ 4; Money Order Rs. at 1, 6, ECF No. 43-6).[5] Harbaugh avers that he did not convey or promise to Dicks that he would be allowed to return the money order for a refund in exchange for withdrawing the

ARP. (Harbaugh Decl. ¶ 5). On June 9, 2015, Dicks filed ARP No. NBCI-1103-15, in which he again alleged that Rose mishandled his money order. (Rose ARP at 1, ECF No. 43-7). NBCI dismissed the ARP for procedural reasons upon finding that the issue was previously resolved and repetitive of ARP No. NBCI-0291-15. (Id.).

Joseph Cutter, NBCI Investigation Captain, explains that incoming and outgoing mail received by the NBCI mailroom is processed in accordance with approved policies and DPSCS directives. (Joseph Cutter Decl. ¶ 3, ECF No. 43-8). According to Cutter, Dicks' mail was not withheld in retaliation, delayed, or not processed, providing that the mail was in compliance with approved policies and directives of DPSCS. (Id. ¶ 4).

All legal mail at NBCI is logged and forwarded to the proper housing unit for delivery to the inmate. (Id. ¶ 5). The “Legal Mail Log” is maintained by mailroom staff, who document the name and Division of Correction (“DOC”)...

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