Roberts v. Shearin
| Decision Date | 27 October 2020 |
| Docket Number | Civil Action No. ELH-17-2306 |
| Parties | BRANDON ROBERTS, Plaintiff, v. WARDEN BOBBY P. SHEARIN, WARDEN FRANK B. BISHOP, and PRISON ADMINISTRATION AND OTHER SUBORDINATES, Defendants. |
| Court | U.S. District Court — District of Maryland |
Plaintiff Brandon Roberts, the self-represented plaintiff, is a Maryland prisoner confined at North Branch Correctional Institution ("NBCI"). He initiated this civil rights action by filing a verified Complaint (ECF 1), pursuant to 42 U.S.C. §1983, against former Warden Bobby P. Shearin, former Warden Frank B. Bishop, Jr., and unidentified "Prison Administration and other Subordinates." The suit was supplemented with information in his response to a motion for more definite statement. ECF 43.1
Roberts lodges numerous allegations concerning his claim of violation of his civil rights. He asserts, inter alia, that his rights were violated after violence in the prison resulted in a lengthy lock-down, during which time he was subjected to an improper strip search at gun point under threat of "trained dogs." ECF 1 at 4. He also claims denial of food, and alleges that a "Phase System" was improperly implemented, which deprived him of privileges and programming, resulting in unfavorable treatment relative to other inmates. Id. at 5.
Defendants Bishop and Shearin have moved to dismiss or for summary judgment (ECF 47), supported by a memorandum (ECF 47-1) (collectively, the "Motion") and the Declaration of William Bohrer, Chief of Security at NBCI. ECF 47-2. They assert that the Complaint is untimely. Defendants also argue that are entitled to dismissal based on qualified immunity, Eleventh Amendment immunity, respondeat superior liability, and because Roberts fails to establish a violation of his constitutional rights. Defendants "Prison Administration and other Subordinates" were never served and have not appeared.
On September 15, 2020, the Court granted plaintiff's motion for an extension of time to respond to defendants' Motion. ECF 50. But, I set a due date of October 8, 2020. Id. On October 14, 2020, the Court received Roberts's "Notice Of Intent To File A Late Response To Defendants' Motion to Dismiss or Alternatively Summary Judgment." ECF 51. However, Roberts did not specify the proposed date of his response, nor has he yet responded to the Motion.
The Motion is ripe for disposition. Upon review of the record, exhibits, and the applicable law, the Court deems a hearing unnecessary. See Local Rule 105.6. (D. Md. 2018). For reasons that follow, I shall dismiss the suit as to defendants Prison Administration and other Subordinates. And, I shall otherwise construe the Motion as one for summary judgment and grant it in favor of defendants Shearin and Bishop.
The Complaint was received by this Court on August 11, 2017. ECF 1. It was supposedly signed by Roberts more than three years earlier, on June 15, 2014. Id. at 12. But, the certificate of service reflects service on the Clerk of Court on August 6, 2017. Id. at 13.And, the motion to proceed in forma pauperis (ECF 2) was signed on August 5, 2017. Id. at 4. Roberts also filed a letter addressed to the Clerk of the Court, dated August 6, 2017. ECF 1-1.
The Complaint was signed by four other individuals: Roger Ervin, Eric Wheeler, Bruce Duncan, and Wayne Morris. ECF 1 at 12. But, only Roberts filed the motion for leave to proceed in forma pauperis. ECF 2.
In an Order of December 11, 2017 (ECF 3), I determined that the Complaint would proceed only as to Roberts and directed that if the other individuals sought to pursue their claims, each had to file his own complaint. Id. From that Order, Roberts filed an interlocutory appeal to the United States Court of Appeals for the Fourth Circuit. ECF 6. The Fourth Circuit dismissed the appeal on April 4, 2018, for failure to prosecute. ECF 17.
In the interim, defendants filed a motion for more definite statement. ECF 15. They requested the dates and names of the staff involved in the various alleged incidents. Id. Defendants asserted that without this information it would be nearly impossible to locate institutional records needed by them to respond. Id. I granted defendants' motion by Order of June 6, 2018. ECF 22. In particular, I directed Roberts to provide the date and/or time frame for each incident and claim referenced in his Complaint. Id. Roberts was also directed to include the name of each staff member he alleged was involved in each incident. Id.
Roberts subsequently moved to modify the Order. ECF 23. By Order of January 23, 2019, I granted that request in part and denied it in part. ECF 30. And, the parties have litigated other disputes, including plaintiff's motion for a temporary restraining order. See, e.g., ECF 9; ECF 26; ECF 28; ECF 29; ECF 30; ECF 34; ECF 35; ECF 37; ECF 38.
Plaintiff filed a status report in June 2019. ECF 39. Defendants responded to plaintiff's status report and included a motion to dismiss in the submission, based on the claim that plaintiff did not adequately respond to ECF 15. See ECF 41.2 Plaintiff did not respond to the motion to dismiss. However, no Roseboro notice had been sent to plaintiff. See Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
Thereafter, nothing transpired in the case until April 30, 2020. At that time, I issued an Order (ECF 42) directing plaintiff to respond to ECF 15. Roberts responded to the Order on May 27, 2020 (ECF 43), indicating that he had, in fact, previously responded to defense counsel. See id. at 3. He claimed that, in an earlier communication to defense counsel, he provided dates for the events alleged in the Complaint and identified the officers responsible for the claim regarding denial of food. In particular, he named prison guards Amy Connors, Dorothy Bittinger, and Thomas Sawyers, and stated that defendants should be able to identify additional prison officials involved in the incidents based on the dates he provided. Id. at 4.
Connors, Bittinger, and Sawyers were not added as defendants. Nor have they been served.
Roberts states that the institutional lockdown started "around August 8, 2013, and continued up until around Jan 9, 2014." ECF 1 at 4; ECF 43 at 3. During this time "the plaintiffs"3 were deprived of medical treatment, showers, hygienic materials, and forced towash in the cell sink. ECF 1 at 5. Showers were denied from "around Aug. 8, 2013, thru Sept. 2013." ECF 1 at 5; ECF 43 at 3. Plaintiffs were also deprived of disinfectant and cleaning supplies for cell cleaning, and for two months they were deprived of clean clothing and sheets and an opportunity to wash clothing. ECF 1 at 5. Hygienic and cleaning supplies were denied from "around Aug. 8, 2013 thru around Dec. 2013." ECF 43 at 3. Moreover, plaintiffs were fed cold meals that were nutritionally inadequate. ECF 1 at 5. They were also deprived of library access, fresh air, and outdoor exercise for about eight months. Additionally, plaintiffs were denied access to school, attorney phone calls, family visits, and religious services. Id. On five occasions, September 12, 14, 15, 20, 24, 2013, plaintiffs were denied bag meals when their cell windows were covered while using the toilet. Id., ECF 43 at 3.
Defendant Shearin was the Warden when the alleged violations first occurred, and then he was replaced by defendant Bishop, who allegedly continued with the same practices until around March 2014. Bishop implemented a "phase system" in Building 2, where Roberts was housed. The phase system limited movement, programs, and exercise. ECF 1 at 5.
As noted, defendants have submitted the Declaration of William Bohrer, dated March 19, 2015.4 He became Chief of Security for NBCI in September 2013. ECF 47-2, Bohrer Decl., ¶ 2. Bohrer avers that on August 5, 2013, NBCI was placed on emergency institutional lockdown in response to the "unprovoked" attack and stabbing of a correctional officer multiple times by an inmate housed in general population. Id. ¶ 4. He asserts that since January 2013 "there had been many [other] incidents of assaults on staff in the monthspreceding the lockdown," including a severe head beating of a dietary officer on July 5, 2013, and several assaults on inmates by fellow inmates. Id. According to Bohrer, the lockdown was implemented to ensure the safety and security of the institution. Id. ¶ 5.
Due to the lockdown, on August 13, 2013, NBCI implemented a shower schedule. Id. ¶ 6. Inmates were offered showers during the 7-3 shift and the 3-11 shift. Two inmates at a time, while handcuffed, were permitted out of their cells. According to the action plan implemented by Warden Shearin, the goal of the new shower schedule was for each inmate to receive a weekly shower and out-of-cell recreation. Inmates confined in Housing Unit #2 received one shower per week from August 13, 2013, until November 4, 2013. Thereafter, they were provided showers twice a week. Id.
Out-of-cell recreation was also limited during the lockdown. Out-of-cell activity resumed during the 7-3 and 3-11 shifts on September 9, 2013. Id. ¶ 9. But, when recreation was cancelled due to inclement weather it was not rescheduled. Id.
The resumption of out-of-cell activities was "balanced" against the institutional need to address "safety concerns" and to assure that activities "would not pose" a "danger to staff or inmates." Id.; see also id. ¶ 11. Resumption of out-of-cell activities was also delayed because the institution had to install additional safety features, such as fence dividers and slots on the recreation room doors and portal slots. Id. ¶ 9.
By October 22, 2013, the institution had increased activities. This included out-of-cell activities, showers, medical/dental passes, serving of one hot meal per day during the week, use of the telephone inside the recreation room, visitation in restraints during weekends in the visitor booth, requests for access to the housing unit library,...
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