Pevia v. Moyer

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
PartiesDONALD R. PEVIA, Plaintiff, v. STEPHEN MOYER, et al., Defendants.
Docket NumberCivil Action ELH-20-2867
Decision Date24 February 2023
MEMORANDUM OPINION

Ellen L. Hollander, United States District Judge

Plaintiff Donald R. Pevia is a prisoner at the North Branch Correctional Institution (“NBCI”) in Cumberland Maryland. On October 2, 2020, he filed a civil rights suit under 42 U.S.C. § 1983 against multiple defendants Stephen Moyer, former Secretary of the Maryland Department of Public Safety and Correctional Services (“DPSCS”); Wayne Hill, the Commissioner of Correction within DPSCS; Warden Frank Bishop; Acting Warden G. Warren; Correctional Officer (“C.O.”) II Jesse Lambert; C.O. II “McKenzie”; and Holly Hoover (Pierce) RNP”. ECF 1. In general, Pevia complains about lack of access to treatment for substance abuse, violations of his rights to medical privacy, and retaliation in connection with random drug testing. He appended several exhibits to his suit, docketed collectively at ECF 1-2.

Hoover has filed a motion to dismiss or, alternatively, a motion for summary judgment. ECF 23. It is supported by a memorandum (ECF 23-1) (collectively, “Hoover Motion”) and several exhibits. Pevia opposes the Hoover Motion (ECF 25) supported by an exhibit.[1]

Defendants Moyer, Hill, Bishop, Warren, Lambert, and McKenzie (the “Correctional Defendants) have moved to dismiss or, in the alternative, for summary judgment. ECF 29. The motion is supported by a memorandum (ECF 29-1) (collectively, “Correctional Defendants Motion”) and an exhibit. Plaintiff opposes the Correctional Defendants Motion and, in the alternative, seeks summary judgment. ECF 34.

Also pending is plaintiff's “Motion to Uphold Your Honors Original Ruling.” ECF 35 (“Uphold Ruling Motion”). In this regard, he appears to refer to my Memorandum Opinion (ECF 16) and Order (ECF 17) of December 7, 2021, in which, among other things, I denied an earlier dispositive motion (ECF 11) filed by the Correctional Defendants, advancing grounds that are not at issue here.

No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2021). For the reasons that follow, I shall construe the Hoover Motion as a motion for summary judgment and grant it. I shall dismiss the Complaint as to defendants Bishop, Warren, Hill, and Moyer. As to defendants Lambert and McKenzie, I shall construe the motion as one for summary judgment and grant it. Finally, I shall deny plaintiff's motions for summary judgment and the Uphold Ruling Motion.

I. Factual Background

In his suit, plaintiff asserts, inter alia, that he is “constantly targeted through the prisons [sic] urinalysis procedure, as a form of retaliation. ECF 1 at 5. He maintains that “theres [sic] no way” that the tests are ‘Random.' Id. Yet, he is denied needed drug treatment. Id. Further, Pevia notes that after he filed a grievance about drug treatment, he was called to the medical room and was seen by Hoover. Id. at 6. He claims that Lambert and McKenzie were present during the visit, in violation of his rights. Id. He was also asked a number of questions by Hoover that he claims were “pointless,” because of the lack of available drug treatment. ECF 25 at 3.

In a Memorandum Opinion of December 7, 2021 (ECF 16), I considered an earlier motion to dismiss or, alternatively, for summary judgment, filed by the Correctional Defendants. See ECF 11; ECF 11-1. In that Memorandum Opinion, I summarized the factual background of the case and the contentions of Pevia, stating, in part, id. at 3-6:

Plaintiff alleges that defendants violated his rights under the Eighth and Fourteenth Amendments to the Constitution by intentionally targeting him for disciplinary action due to his known drug abuse, without providing him access to any drug treatment programs; being present while confidential medical information was revealed and using that information against him; and denying him access to basic hygiene items. ECF 1 at 9.

A. Administrative Remedy Procedure (“ARP) NBCI-0017-20

Plaintiff filed ARP NBCI-0017-20 on January 1, 2020, complaining that his rights under the Eighth and Fourteenth Amendments were violated because he was denied access to any drug treatment program. ECF 1 at 3, 5. Pevia explains that he is a known drug user who is targeted and retaliated against by prison staff who single him out for drug testing, which he routinely fails, and for which he is then placed on disciplinary segregation. Id. at 5. Plaintiff alleges that although the urine tests are to be administered randomly he is regularly tested on the first day he is eligible. Essentially, he states that he is not eligible for any drug addiction programming because of his housing assignment but his addiction and testing result in his repeated assignment to disciplinary segregation, which then prevents him from progressing to a housing assignment where he could access drug treatment. Id.

In his opposition, plaintiff explains that he was randomly selected for urine testing three times between November 9, 2019, and March 8, 2020. ECF 14 at 2. He explains that on two of the three occasions he was on cell restriction and also that policies prohibit an inmate from being tested twice within 30 days. Id. He provides copies of the notice of inmate rule infractions issued to him on November 2 and December 18, 2019, and March 17, 2020. ECF 14-1 at 9-11. He also states that once he filed the instant Complaint, the targeted urine tests stopped. ECF 14 at 2.

Plaintiff alleges that Moyer is responsible for the rules and regulations throughout DPSCS, and the Commissioner of Correction is responsible for the operations of DPSCS facilities while Bishop and Warren are responsible for the operation of NBCI. ECF 1 at 2. He clarifies that Moyer, Bishop, and Warren are responsible for insuring that drug treatment programming is available with the federal funding DPSCS receives and they have failed to do so. ECF 13 at 3. According to Pevia, Moyer permits NBCI to operate without drug treatment. Id.

He also asserts that Warren has advised that in order to participate in drug treatment plaintiff needs to work his way to Housing Unit 4, but no programs are available to allow him to do so. Id. at 5.

Plaintiff provides evidence that the Warden denied his ARP regarding lack of access to drug treatment, and on appeal the Commissioner remanded the matter to the Warden for further consideration. ECF 1 at 3; ECF 1-1 at 1-12. Warren then denied plaintiff's ARP on alternative grounds. Plaintiff appealed the denial to the Commissioner and ultimately to the Inmate Grievance Office (“IGO”), where the appeal was denied. Id.

B. ARP NBCI-0562-20

On March 14, 2020, plaintiff filed an ARP complaining that after he sought drug treatment and filed ARP NBCI-0017-20 he was called to the medical room to discuss his drug addiction with Nurse Holly Hoover. ECF 1 at 6. During their conversation, Officers Lambert and McKenzie were present and interjected comments. Although plaintiff objected to the presence of correctional staff while he discussed his drug use, Lambert advised him that as long as he was properly trained on HIPAA he could remain. Id. The day after plaintiff's conversation with Hoover, plaintiff was called for a drug test, which he failed, and which resulted in his receiving a disciplinary infraction. Id.

Plaintiff claims that Hoover, Lambert, and McKenzie violated his right to due process by violating his privacy while he shared personal medical information and then using that information to single him out for the urine test. Id. at 6-7. He claims that Hoover was not interested in helping him with his drug addiction. Id. at 6. Further, plaintiff asserts that Lambert and McKenzie lied about their presence during his meeting with Hoover and the three used the information he provided during the visit to target him for a drug test. ECF 13 at 5-6.

Plaintiff provides evidence that he attempted to exhaust his administrative remedies by filing an ARP, the denial of which he appealed to the Commissioner, and then ultimately to the IGO, which also denied his grievance. ECF 1 at 3-4; ECF 1-2 at 13-18.

C. ARP NBCI 1559-18

Plaintiff filed an ARP to the Warden, complaining that the welfare hygiene bag provided to him as an indigent inmate no longer contained dental floss loops to floss his teeth. ECF 1 at 7. Plaintiff states that, as a result, he resorted to the use of thread from his bed linen, which cut his gums, causing bleeding, swelling, and lacerations, ultimately leading to an infection and deterioration of his dental hygiene. Id. at 7-8. Plaintiff states that Bishop is responsible for providing “welfare bags” to indigent inmates and that Moyer, Bishop, and Warren were each aware of and permitted the cut back in the contents of welfare bags. ECF 13 at 5.

In his opposition, plaintiff provides copies of sick calls he submitted about his deteriorating dental hygiene along with copies of his dental records. The documents indicate that the dentist stressed the need for daily flossing and also demonstrating that the dentist found trauma to plaintiff's gums, due to his use of thread to floss. ECF 14-1 at 19-20.

Plaintiff provides evidence that after his ARP was denied at the institution, he filed an appeal to the Commissioner and to the IGO, which also denied his grievance. ECF 1-2 at 19-24.

Among other things, I construed the motion as a motion to dismiss and denied it. ECF 16. In particular, I rejected the defenses of failure to exhaust, immunity under Maryland law for State law claims (because there are no State law claims in the case), and rejected the claim that the allegations of personal participation were not legally sufficient. Id.[2] I also provided for...

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