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Fisher v. Volunteers of America

United States District Court, D. Maryland

February 14, 2014



PAUL W. GRIMM, District Judge.

I. Background

Jerrell Fisher (hereinafter referred to as "Fisher") filed this 28 U.S.C. § 2241 petition for habeas relief while housed at the Kent County Detention Center. He alleges that on June 11, 2013, he was cited with a disciplinary infraction by the Director of the Volunteers of America ("VOA"), Jennifer Masselieno, with whom he had verbal disagreements in the past. Fisher claims that his release date was altered by an additional three weeks due to the "summary disposition" of the infraction without his being afforded his due process rights, i.e., a fair hearing. He seemingly asserts that he was accused of the infraction (theft of cigarettes) as a retaliatory measure as he had more than sufficient income and no reason to commit the offense as alleged. Fisher contends that Ms. Masselieno exceeded the scope of her authority to "ensure that I be sanctioned and kicked out of the program." ECF No. 1. He seeks immediate reinstatement of his good conduct time.

On August 15, 2013, respondent filed a motion to dismiss or, in the alternative, motion for summary judgment, [1] which remains unopposed as of the within signature date.[2] ECF No. 5. The Court has reviewed the petition and briefing and finds that an oral hearing is not necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, respondent's motion, construed as a summary judgment motion, shall be granted and the petition shall be dismissed.

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The purpose of the rule is to "test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City o/Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). To that end, the Court bears in mind the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), and must state "a plausible claim for relief, " as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, " Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937. See Velencia v. Drezhlo, RDB-12-0237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (discussing standard from Iqbal and Twombly). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663, 129 S.Ct. 1937.

When reviewing a motion to dismiss, "[t]he court may consider documents attached to the complaint, as well as documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed." Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see CACI Int'l v. St. Paul Fire & Marine Ins. Co., that is an exhibit to a pleading is a part of the pleading for all purposes."). Moreover, where the allegations in the complaint conflict with an attached written instrument, "the exhibit prevails." Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991); see Azimirad v. HSBC Mortg. Corp., No. DKC-10-2853, 2011 WL 1375970, at *2-3 (D. Md. Apr. 12, 2011). However, if the court considers matters outside the pleadings, as the court does here, the court must treat the motion as a motion for summary judgment. See Fed.R.Civ.P. 12(d); Syncrude Canada Ltd. v. Highland Consulting Grp., Inc., 916 F.Supp.2d 620, 622-23 (D. Md. 2013).

Summary judgment is proper when the moving party demonstrates, through "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials, " that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v. City o/Greensboro, 714 F.3d 828, 833-34 (4th Cir. 2013). When considering cross-motions for summary judgment, the court must consider "each motion... individually" and view "the facts relevant to each... in the light most favorable to the non-movant." Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003). If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute exists as to material facts. See Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The existence of only a "scintilla of evidence" is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id.

III. Discussion


Respondent affirms that Fisher was sentenced in this court on February 25, 2005, on drug, firearms, and aiding and abetting convictions in violation of 21 U.S.C. § 841(a)(l) & (b)(l)(B) and 18 U.S.C. §§ 2 & 924 ECF No. 5, Ex. 2 at McGee Decl. & Attachment A. According to Respondent, in June of 2013, Fisher was designated to the Volunteers of America ("VOA") Residential Re-Entry Center ("RRC") in Baltimore, Maryland. Id., Ex. 2 at McGee Decl.

On June 11, 2013, Fisher had an encounter with the VOA supervising cook, Tierra Knox, in the RRC kitchen. Id. at Ex. L. According to the Code 219 (stealing) incident report, Fisher approached Knox and twice asked whether she had or could give him a cigarette. Id. Knox replied no on both occasions and advised Fisher not to ask again. Fisher then walked to a filing cabinet, unzipped Knox's handbag, removed a cigarette, and put it in his pocket. Id. Knox reported the incident to the Food Service Manager and written notice of the alleged theft was delivered to Fisher by the VOA House Supervisor. !d. at Ex. P. An RRC Disciplinary Committee hearing on the matter was scheduled for June 13, 2013. Fisher was given notice, advising him that he had the right to present witnesses and to offer documentary evidence at the hearing. He did not identify any witnesses. Id. Further, Fisher declined to have a staff member represent him at the hearing. !d. at EX.M.

Prior to the Disciplinary Committee hearing, Fisher was advised of his right against self-incrimination and chose to make no statement about the alleged theft; rather, he indicated he had not been served with the incident report. ECF No. 5 at Ex. L. Fisher executed his waiver of his right to have a written copy of the charges provided to him at least 24 hours prior to appearing before the disciplinary committee. Id., Ex. O. He also signed the disciplinary committee hearing form acknowledging his rights when charged with violating VOA regulations and rules. Id., Ex. N.

At the June 13, 2013 hearing Fisher conceded that he had asked Knox for a cigarette, but denied the theft charge, opining "Why would still stealing [sic] and jeopardize my program." He presented no other testimonial or documentary evidence. After considering Fisher's statement, his acknowledgment of VOA rules, the program agreement and the incident report, the disciplinary committee found that Fisher had violated VOA regulations by stealing a cigarette from Knox's handbag. Id. at Ex. P. Fisher was sanctioned with the loss of twenty-seven days good conduct credit and the forfeiture of twenty-seven days of non-vested good conduct time, he was given forty-five days of disciplinary segregation, and he lost ninety days of commissary, telephone, and ...

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