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Fishback v. Gary Maynard

United States District Court, Fourth Circuit

November 15, 2013



J. FREDERICK MOTZ, District Judge.

Pending are defendants' supplemental motion to dismiss or for summary judgment and plaintiff's self-represented oppositions. ECF Nos. 18, 23, 36, 43, 44, 58, 88, 94. The case is ripe for dispositive review.[1] Upon review of papers and exhibits filed, the court finds an oral hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2010).


At the time he instituted this case, plaintiff was a Division of Correction ("DOC") inmate alleging that on August 25, 2007, he was removed from general population at the Roxbury Correctional Institution at Hagerstown ("RCI"), transferred to the North Branch Correctional Institution ("NBCI"), and placed on administrative segregation. He claims he was not provided notice or a hearing regarding his transfer to NBCI. Plaintiff indicates that on September 5, 2007, he was placed in NBCI's Special Management Unit ("SMU") and the Quality of Life ("QOL") or "Levels" program without due process. Plaintiff also raised complaints regarding conditions of confinement, confiscated property, access to courts and lack of access to the law library. ECF No. 1. Plaintiff complains that he was not given a written factual basis for his placement on the SMU, but had only been provided vague explanations that it was believed he was a gang member. Added to these initial due process claims is plaintiffs assertion that the conditions of SMU were "atypical" as his assignment was tantamount to indefinite placement on solitary confinement and included the confiscation of property and the revocation of privileges, with the exception of one-hour of "fresh air" per week while in full restraints and twice weekly showers[2] Plaintiff also complains that he was subjected to a Behavioral Management Program ("BMP") while on SMU which allows for inmates to achieve one of six "levels, " subject to the decisions of SMU officers and the levels committee. He claims that after the filing his initial complaint he was maintained on the intake level due to his refusal to voluntarily participate in the program, despite having received no infractions.[3] ECF No. 1.

Plaintiff further raises Fourteenth and Eighth Amendment equal protection and deliberate indifference claims, stating that he was treated differently than other inmates classified to administrative segregation and that the conditions of his SMU cell assignment subjected him to cruel and unusual punishment.[4] In addition, he claims his forced participation in the BMP violated his First Amendment rights. ECF No. 1. He seeks declaratory and injunctive relief, along with punitive and compensatory damages. Id.

In response, defendants assert that plaintiff was transferred based upon a report that he was a validated member of Dead Man Incorporated ("DMI"), a security threat group, and has an extensive poor adjustment violence. ECF No. 18, Ex. 1. Case management Manager Casey M. Campbell avers that plaintiff has an extensive history of violence including violence against correctional officers, including spitting in an officer's face and breaking the hand of a correctional officer. Id.

On August 23, 2007, plaintiff was transferred from RCI to NBCI. He was assigned to administrative segregation on August 29, 2007, based on the belief that he posed a danger to the security of the institution and/or inmates and/or staff. Id., p. 39-40. Regional Commissioner Jon Galley directed that all inmates received in Housing Unit 6 (the Special Management Unit "SMU") at NBCI, [5] be placed on administrative segregation. Id., p. 40. On September 13, 2007, plaintiff was identified as a candidate for housing in NBCI's SMU and placement on the QOL program based on his identification as a member of a security threat group and his lengthy adjustment history. Id., p. 36.

Defendants acknowledge that the QOL program, initially implemented in January 2007, underwent many changes after several gang-related incidents of violence in DOC facilities and it was "difficult to discuss the behaviors that resulted in... placement in the program as many of the individuals were influential in security threat activity." Id., Ex. 2 at p. 5. In addition, defendants concede that the initial process for placement in the program was not clear, resulting in a number of individuals being placed at NBCI with little or no documentation to support the allegation that they were a threat to the security of the institution. Prior to being transferred to the SMU, a form for each inmate was supposed to be filled out by the sending institution and approved by the regional assistant commissioner and the assistant commissioner for programming. This approval process was not done for approximately 90 inmates who were transferred to the SMU at NBCI as "emergency" transfers. Once these inmates were housed at NBCI, they received a case-by-case review by NBCI staff. A "re-review" of all of the inmates was not completed until October of 2007. This resulted in 42 participants being discharged from the program because there was little, if any, documentation supporting their continued placement in the program. Id.

Inmates like plaintiff who opted not to participate in the BMP were forced to remain at the initial intake level indefinitely and could not advance unless they decided to participate in the BMP. ECF No. 18, Ex. 2. Defendants admit that participation in the program was mandatory until April 2008, when the mandatory status was rescinded by the Assistant Commissioner of Correction. At that time if inmates in the SMU did not participate in the BMP, they were assigned to administrative segregation. The inmates were told they would remain in administrative segregation status until each convinced the Assistant Commissioner that he was no longer a threat to the security of the institution. They were further informed that the only manner upon which they could be removed would be to complete the BMP so as to establish they were not a threat. While on administrative segregation, inmates were reviewed by case management personnel at least once every 30 days and case managers were to consider available alternatives to continued administrative segregation including additional programming opportunities. ECF No. 18, Exs. 1, 2 & 5; ECF No. 58.

On August 27, 2007, plaintiff was placed on administrative segregation after he was deemed dangerous to institutional safety.[6] Id., Ex. 1. Plaintiff's adjustment history includes assaultive conduct, violence against staff, possession of controlled dangerous substances, and he has been found guilty of 11 category one rule infractions since 2001. Id. and ECF No. 58, Ex. 5. NBCI Intelligence Lieutenant Damon Thomas indicates that plaintiff has been verified as a gang member. Id.

On August 23, 2007, prior to plaintiffs transfer from RCI, a case management review for reassignment purposes was held. ECF No. 36, Ex. 1, p. 44. Plaintiff did not attend the review and at that time he was reassigned to administrative segregation and then transferred to NBCI. Id. On August 30, 2007, NBCI Case Management recommended plaintiff be reassigned from administrative Defendants indicate plaintiff was pending adjustment at this time. Plaintiff disputes that he had any disciplinary tickets pending at the time of this designation. ECF Nos. 23 & 44. This factual dispute is not material to the outcome of this case. segregation 120 (the 5 day period, excluding weekends where an inmate can be held on administrative segregation without a review) to administrative segregation. During this review plaintiff was provided the opportunity to discuss and challenge the appropriateness of his assignment to administrative segregation. Id. The Warden's designee approved the recommendation on September 5, 2007. ECF No. 18, Ex. 1, p. 38.

Plaintiff came to the attention of the QOL committee on September 13, 2007, due to their focus on gang activity throughout the prison system and plaintiffs identification as a gang member with a long history of violent conduct. He was admitted to the QOL Levels program. Id., p. 36. He then underwent his first QOL evaluation and discussion of his BMP and he refused to participate in the program or sign the BMP. Id., Ex. 2. Defendants indicate that at every case management review plaintiff was advised of the rationale for his transfer and placement in the SMU. ECF No. 36, Ex. 3. The parties do not dispute that plaintiff was not provided access to his intelligence file.[7]

In November of 2007, plaintiff progressed to level one of the program, however he was returned to the intake level after a December 10, 2007 cell extraction for shouting out gang statements form his cell. Between December 2007 and April 2008, plaintiff progressed from the intake level to level two of the program. Id., p. 12-18.

In April, 2008 the program was made voluntary. Those opting not to participate were removed from the program and placed on administrative segregation. On April 9, 2008, plaintiff signed out of the program and was reassigned to administrative segregation at his April 24, 2008 case management review. Id., Ex. 1, p. 16-20. On June 14, 2008, plaintiff was assigned to disciplinary segregation for fighting with another inmate in the segregation cage during recreation. Id., Ex. 1, p. 50-57. Due to that offense and other subsequent offenses he was scheduled to remain on disciplinary segregation until the fall of 2010.[8] ECF No. 36, Ex. 1.

Plaintiff was returned to administrative segregation on August 16, 2010, after completion of his disciplinary segregation term. Segregation review allows a placement team comprised of correctional staff to determine suitability for placement in general population. During plaintiff's segregation review, staff noted plaintiff had an enemy housed at NBCI on disciplinary segregation. ECF No. 69, Exs 1 & 2. During 2011, he was housed in general population at NBCI and then transferred to Western Correctional Institution (WCI).[9] ECF No. 94.

In his opposition, plaintiff focuses primarily on his claim that confinement on the SMU at NBCI constitutes an atypical and significant hardship giving rise to a liberty interest. ECF No. 23. He states that he should have been accorded a due process hearing and notification of the factual basis for the charges against him. Plaintiff complains that his stay in SMU was for an "indefinite" period of time, limited only by defendants' discretion and completion of the BMP.[10] He maintains that the SMU confinement constitutes a typical and significant hardship under the cases of Wilkerson v. Austin, 545 U.S. 209 (2005) and Farmer v. Kavanaugh, 494 F.Supp.2d 345 (D. Md. 2007), due to the indefinite duration, extreme isolation and restrictions on the SMU, and his inability to earn diminution credits to shorten the length of his sentence. ECF Nos. 23 & 44. He claims that he is entitled to process that provides him fair notice of the factual reasons for his assignment and opportunity to respond. Id. He notes the difference in his confinement in general population at RCI and is confinement on the SMU at NBCI. Id . Plaintiff argues that defendants have failed to come forward with evidence justifying his placement on SMU and asserts that even though he remained assigned to administrative segregation after April of 2008, his case management reviews were cursory at best. Id.

Standard of Review

A. Motion to Dismiss

The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) (6) is to test the sufficiency of the plaintiffs complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The dismissal for failure to state a claim upon which relief may be granted does not require defendant to establish "beyond doubt" that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-62 (2007). Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Id. at 562. The court need not, however, accept unsupported legal allegations, see Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, see Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events, see United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).

In reviewing the complaint in light of a motion to dismiss pursuant to Fed. R. Civ. Proc. 12(b)(6) the court accepts all well-pleaded allegations of the complaint as true and construes the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff. See Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005); Ibarra v. United States, 120 F.3d 472, 473 (4th Cir. 1997); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Migdal v. Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325-26 ...

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