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Chew v. Green

United States District Court, D. Maryland

September 2, 2014

MICHAEL CHEW #180-461 Plaintiff:
v.
KATHLEEN GREEN, WARDEN: PAUL WISENGOFF GREGORY BIRCH: BRUCE BOZMAN DENISE GELSINGER, FACILITY: ADMINISTRATOR SCOTT ROWE, CORRECTIONAL CASE: MANAGEMENT SPECIALIST[1] HAMILTON, GANG INTEL: JAMES E. TICHNELL, CORRECTIONAL CASE MANAGEMENT MANAGER: Defendants.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

On July 12, 2013, [2] self-represented Plaintiff Michael Chew, a Maryland Division of Correction prisoner currently housed at Jessup Correctional Institution ("JCI"), signed a civil rights complaint pursuant to 42 U.S.C. ยง 1983, seeking money damages and injunctive relief mandating he be assigned to protective custody and a single cell for the remainder of his incarceration. In his Complaint, as amended, Chew alleges that correctional personnel harassed him by conducting numerous cell searches and confiscating his legal documents; he has been attacked three times by fellow prisoners since September 10, 2010, and by an "Officer Morris" on April 25, 2013;[3] and he is threatened with further harm both by correctional personnel and other prisoners because he has been labeled a "snitch." In addition to money damages, Chew seeks injunctive relief mandating an end to the cell searches, a return of his documents, the removal of allegedly fabricated reports from his prison base file, and protective custody assignment to include a single cell. (ECF No. 1 at 4; ECF No. 9).[4] Counsel for Defendants has moved for dismissal or for summary judgment (ECF No. 28), and Plaintiff has filed an opposition response.[5] (ECF No. 51). A hearing is not needed to resolve the case. See Local Rule 105.6 (D. Md. 2014).

Background

Plaintiff claims that while housed at Western Correctional Institution ("WCI"), he was assaulted by his cellmate. He states that this September 10, 2010 incident occurred after his cellmate, Quentin Cephus, "saw papers that I was a rat and... snitch on his comrades, the Black Gorilla Family gang." (ECF No. 1 at 4). He implies that beginning in 2006, he complained to case managers and other DOC personnel that he was in danger from prison gangs, and has continued to seek protection from these gangs through placement of protective custody and assignment to a single cell. He states that despite his attack by Cephus and his ongoing requests for protection from gang members, DOC personnel have refused to acknowledge that he is in imminent danger, and instead have "kept [him] on disciplinary segregation under false pretenses for seven years." Plaintiff further claims that "[b]eing labeled a snitch isolated [him]" from other prisoners. Plaintiff states he is in his mid-fifties and came into the DOC in 1985, where he was housed in the general population until January 10, 2006. (ECF No. 1 at 5).

Plaintiff states that in January of 2006, while housed at Eastern Correctional Institution ("ECI"), he asked Defendant Wisengoff for protection from BGF because they were extorting him. He claims Wisengoff then showed Plaintiff's statement to Ricky McDonald, a member of the BGF. As a result, Plaintiff had to choose between fighting BGF members or "go[ing] on lockup." (ECF No. 1 at 6).

Plaintiff claims his request for protection from BGF was rejected by ECI Case Managers Birch in May of 2006 and Bozman in August of 2006. Id. at 6-8. He states Bozman nearly attacked him during a September, 2007 meeting with Captain Holmes. Id. at 8. He also claims that during this time his repeated requests to Defendant Green concerning threats on his life were met with indifference. Id. at 12.

After a transfer to Roxbury Correctional Institution ("RCI"), Plaintiff requested protective custody status from Case Manager Gelsinger. Gelsinger denied his request in November of 2007. Plaintiff claims that Gelsinger asked him to sign a "body waiver" exculpating her from liability should Plaintiff be attacked, and when he refused, Plaintiff was placed on disciplinary segregation. Id. at 9.

Plaintiff next was housed at JCI, where in September of 2008, Defendant Rowe denied his request for protection from Ronnie Jones (an enemy previously housed at ECI) and loudly told Plaintiff to "stop snitching." Id. at 9. Plaintiff was found guilty of an infraction in February of 2009 because he refused to accept housing in general population. Plaintiff claims that at this time, Rowe again declined to help him obtain protective custody, despite Plaintiff's statement that "case management wanted to see [him] physically harmed." Id. at 10.

Plaintiff states that in December of 2008, while still at JCI, he met with Defendant Hamilton concerning Ronnie Jones and "L, " a member of the Bloods gang who threatened Plaintiff because of Plaintiff's assistance to a former gang member. Id. Plaintiff claims that in February of 2009, Hamilton agreed to place information in Plaintiff's base file validating his endangerment from gangs, but failed to do so. Plaintiff claims that in March and April of 2009, Defendant Tichnell denied his placement on protective custody after determining that Plaintiff was merely attempting to force a transfer from JCI. Id.

On September 10, 2010, the incident with cellmate Cephus occurred. Both men were injured and both were charged and convicted of institutional rules violations. Id. at 4; ECF No. 1-1 at 5-9; ECF No. 28-3 at 42, 58; ECF No. 28-4; ECF No. 28-5.[6]

In October of 2012, Plaintiff returned to ECI, where he renewed his requests for protective custody status and complained to Green about "14 false documents in my prison base file and [Maryland Correctional Institution-Hagerstown] Warden Webb's decision." He complains that Green did nothing and as a result he has remained on disciplinary segregation. Id. at 12-13.

Defendants, who argue that the limitations period has expired with regard to many of his claims prior to July of 2010, present a different version of events. On September 27, 2010, while housed at WCI, Plaintiff wrote a letter to the Department of Public Safety & Correctional Services Internal Investigative Unit ("IIU") alleging that he had been assaulted by his cellmate, Quentin Cephus, on September 10, 2010. (ECF No. 28-3, IIU Report of Michael Chew, CIR, # 103501377, at 7). Plaintiff claimed that he was awakened by "something hitting the bunk" and observed Cephus reading a note. Cephus allegedly accused him of being a rat and spat on him. Plaintiff claimed that he was struck on the left side of his head and eye, then tried to kick Cephus, who had bitten his hand. Id.

Plaintiff reported the incident to B Tier Correctional Officer Neil W. Alexander, Jr., who reported hearing a call for assistance coming from cell #18. Alexander reported observing Plaintiff "standing in front of the cell window in the back of the cell, and I could see he had a bloody lip." He also noted that Cephus was standing in front of Plaintiff. Id. When the inmates were questioned about what was going on, both inmates shrugged their shoulders. Id. at 8. Both prisoners were handcuffed, taken to the medical department, and examined by James Wilt, RN. Id. Plaintiff had sustained slight swelling to the left eye, a bloody lip, and a small bite mark over the left eye on his forehead. (ECF No. 28-4 at 1, Medical Records of Michael Chew, #180-461). He received a tetanus vaccination and it was noted that orders for HIV and Hepatitis testing were needed. The bite mark was cleansed and dressed. Id. at 11. Ongoing care was provided ( id. at 4-16), and nothing suggests the injuries have not resolved.

A check of the OBSCIS Alerts and OBSCIS II Classification Data system[7] reveals that neither Plaintiff nor Cephus is a validated member of a Security Threat Group (gang). Plaintiff claims that a review of the adjustment hearing will show that Cephus' comments will support his claim Cephus was a gang member. (ECF No. 1 at 4-5). The audiotape of the hearing reveals that Cephus did not admit the incident was gang-related, but that Plaintiff:

got up we had some words he kicked me in my leg and I defended myself that's it. He planned all this out so he could get this lawsuit... that's all he do is file ARPs and file lawsuits... He probably... he might be ready to go home he trying to go home to get some money. Far as officers they didn't see nothing."

(ECF No. 28-5 at 5:45-6:20). The hearing officer found both men guilty of violating Rule 102 and imposed a sanction of 150 days of segregation. (ECF No. 28-3 at 42 and 58).

Defendants also provide details concerning Plaintiff's challenges to the denial of his request to be assigned to protective custody. Specifically, Plaintiff complains that on July 8, 2010, Defendant Tichnell prepared a routing slip ordering his assignment to general population, even after Tichnell was made aware of "fabricated reports" in Plaintiff's base file. ECF No. 1 at 11. Case notes, however, indicate that Plaintiff, who was routinely reviewed by case management while housed at WCI, remained assigned to disciplinary segregation throughout his time at WCI because he kept incurring new rule violations. ECF No. 28-7 at 1-6.

On May 13, 2010, an Administrative Segregation Investigative Report was conducted in response to Plaintiff's claim that he was not safe in general population due to problems with Security Threat Groups throughout the DOC. (ECF No. 28-8, Case Management Assignment Sheets of Michael Chew, at 82-84). The investigator concluded that Plaintiff's file and testimony should be reviewed at the case management team review. Id. On May 17, 2010, the case management team recommended that Plaintiff be removed from administrative segregation and continued on disciplinary segregation assignment because he "failed to provide any kind of information that would make the inmate suitable for [protective custody] status. Documentation indicates that this is a classic manipulation." Id. at 83. Attached to the Notice of Assignment to Administrative Segregation were documents including an e-mail from then Case Manager Denise Gelsinger, dated February 13, 2008, stating that review of the base file contained nothing to support Plaintiff's claim of a gang hit. Id. at 85. Additionally, Gelsinger noted that Plaintiff had housing problems "wherever he goes" and she believed that he wanted to be assigned to administrative segregation for the rest of his life.[8] Id. A letter from Acting Commissioner John A. Rowley to Ms. Cheryll-Vanessa Chew, dated January 5, 2007, notes:

After investigating your concerns, we have found that Mr. Chew remains on disciplinary segregation for continuously refusing housing... He repeatedly refuses to cooperate with case management in naming any enemies which makes it very difficult to determine where the threats he has reported originate. If Mr. Chew does not provide specific details, his case manager cannot determine what institution can best meet his needs.

Id. at 86; see also ECF No. 28-9 (Correspondence from Commissioner J. Michael Stouffer to Congressman Elijah Cummings, dated July 12, 2010).

On March 31, 2010, Plaintiff filed Grievance # 2010629, with the Inmate Grievance Office ("IGO") complaining that his request for assignment to protective custody was improperly denied on March 25, 2010. (ECF No. 28-10 at 8, OAH Decision in Chew v. Maryland Division of Correction, OAH Case No. DPSC-IGO-005V-10-19022, dated September 2, 2010). In a hearing conducted on June 8, 2010, the Office of Administrative Hearings ("OAH") examined Maryland's Administrative Procedure Act, the General Regulations of the IGO, and the OAH Rules of Procedure to determine whether "the DOC arbitrarily and capriciously, or in a manner not consistent with the law, denied the Grievant's March 25, 2010 request to be placed in protective custody." Following testimony given by Plaintiff and prison officials and after examining various DOC records, the ALJ made findings of fact, including the following: Since January 2006, the Grievant has been on either disciplinary segregation for refusing to accept housing assignments in the general population at ECI, JCI [Jessup Correction Institution] and WCI, or on administrative segregation pending investigation into his allegations that he is under threat from members of various gangs...

At the time of the February 2009 case management review, the Grievant did not identify any specific individuals who had made any threats to his safety...
On or around March 27, 2009, the Grievant was taken off administrative segregation and ordered to report to a housing unit in WCI's general population. At that time, the Grievant refused the housing assignment. As a result, he received a disciplinary notice, and, after an adjustment proceeding was placed on disciplinary segregation for 270 days...
On or around March 2009, the Grievant wrote a letter to the Warden of WCI, in which he explained the basis for his refusal to accept the housing assignment. In the letter, the Grievant indicated that he was having problems with gangs, " but ...

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