United States District Court, D. Maryland
GERALD D. FULLER, Plaintiff,
WARDEN BOBBY SHEARIN, et al., Defendants.
WILLIAM M. NICKERSON, Senior District Judge.
Pending in the above-captioned case is Defendants' Motion to Dismiss or for Summary Judgment. ECF No. 16. Plaintiff opposes the motion. ECF Nos. 27 and 32. In addition, Plaintiff has filed Motions for Injunctive Relief, for Protective Order, to Compel Discovery, and to Appoint Counsel. ECF Nos. 23, 25, 26, and 28. The Court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Defendants' motion, construed as a Motion for Summary Judgment, shall be granted and Plaintiff's pending motions denied.
Plaintiff, an inmate incarcerated at North Branch Correctional Institution ("NBCI"), claims that on July 11, 2012, Lt. Manuel was leading a group of correctional officers, all of whom were white, in searching inmates as they exited the dining hall. ECF No. 1 at p. 5. He asserts that the "white prisoners" who were stopped and searched were permitted to return to their housing units, but the "Black prisoners" were placed on the fence to be searched. Id. Plaintiff does not provide information concerning how he observed this to be the case.
When Plaintiff left the dining hall, he claims he was called "shine" by Lt. Manuel, who ordered Plaintiff to come back to where he was standing. Id. Plaintiff states he asked what he had done and, in response, was "roughly handcuffed." Id. Plaintiff told Manuel he had a medical order for front cuffing and that he walked with a cane. He states he was then dragged and carried to segregation. Once in the segregation unit, Plaintiff alleges he was subjected to a strip search which was video-recorded. Plaintiff claims he was told to strip and ordered to bend at the waist and "hold his anus rectum open under threat of violent force." Id. He further alleges that the officers, who he describes as "white guards, " took turns shining a light into his rectum while making comments. Id. Plaintiff was then placed on segregation and he claims all of his property was "pepper sprayed by unknown staff members." Id.
On July 24, 2012, Plaintiff claims he was denied an attorney visit from counsel in a pending criminal case. He claims that his attorney was told she would not be able to see Plaintiff due to a disturbance in Plaintiff's housing unit. The referenced disturbance arose, according to Plaintiff, because he refused to go to an adjustment hearing in lieu of his attorney visit. He states that after he was convinced that he would not be allowed to visit with his attorney unless he first went to the adjustment hearing and that staff were prepared to forcibly extract him from his cell, he "relented." Id. He asserts that Sgt. Wedlock and an unknown female officer compelled him to plead guilty to all of the rule violations in exchange for the attorney visit. Plaintiff was unaware that his attorney had already left the prison by that time. Id.
Plaintiff maintains that the searches that occurred outside of the dining hall, as well as the subsequent strip search, were video and audio recorded. He requested the video be presented at the adjustment hearing and because it was not presented, Plaintiff appealed the adjustment conviction to the warden. The appeal was denied and additional sanctions were added. Id. Plaintiff then appealed the proceeding to the Inmate Grievance Office ("IGO"). Id.
At the IGO hearing Plaintiff claims Manuel alleged that when Plaintiff held out his hands to be cuffed while still holding his cane and asking what he had done, Plaintiff had engaged in a rebellious act. Plaintiff again asked for the video and audio recordings of both his encounter with Manuel and the strip search be produced at the IGO hearing. At the time of his search, no contraband was found in Plaintiff's possession. Id. at p. 6. Plaintiff appealed the IGO's denial of his appeal to the Circuit Court for Allegany County. Id. His appeal was dismissed for failure to file a memorandum in support of this petition, but Plaintiff claims he did in fact file the required memorandum. Id.
Defendants provide as evidence a copy of the Administrative Law Judge's ("ALJ") decision regarding Plaintiff's appeal of an Administrative Remedy Procedure complaint ("ARP") concerning his allegations that Manuel and other correctional officers targeted black inmates for searches on July 11, 2012. ECF No. 16 at Ex. 2. Initially the hearing was postponed because Plaintiff's requests for witnesses and for production of the video recording of the incident, while timely filed, had not been received by the IGO. The ALJ required the institutional representative, Randy Durst, to either produce the video or explain its absence. Id. at p. 2. Upon receipt of an affidavit from Lt. James Coleman dated January 22, 2013, it was established that no such video existed. Id. at p. 2, n. 1.
The findings of fact reached by the ALJ include that Plaintiff is black, uses a cane to walk, and was the subject of a medical order for front-cuffing issued on September 30, 2011. Id. at p. 6. During meal times approximately seventy to eighty inmates enter, then exit the dining hall in columns of one or two inmates. Inmates are prohibited from taking commissary items into the dining hall, but are permitted to bring educational material with them if they are coming directly from school. Additionally, inmates are not permitted to take food out of the dining hall, but the rule regarding permitted items coming into or leaving the dining hall is not routinely enforced. Id.
On July 11, 2012, Lt. Manuel, who is white, conducted a visual search of inmates as they exited the dining hall for purposes of detecting contraband. When anything about an inmate's appearance led him to believe he may be carrying an item out of the dining hall, that inmate was stopped and asked to step to the side for a search. Manuel explained that stopping an inmate had to be done quickly in order to avoid interrupting the procession out of the dining hall and potentially creating a security threat through disruption of a routine. A team of approximately five correctional officers were working with Manuel in stopping inmates for searches. Id. at p. 7.
Manuel stopped seven to ten inmates for a search on July 11, 2012. Plaintiff exited the dining hall with another inmate, Andre Pearson, who is also black. Plaintiff was called by Manuel to be searched because his "shirt pocket was not flat against his shirt." Id. Because Pearson did not appear to have anything in his pockets, he was not called back for a search. When Plaintiff was called by Manuel, he appeared to be annoyed at having been stopped. Plaintiff moved toward Manuel, thrust his arms back and forth toward Manuel while holding his cane, and exclaimed loudly that he was being harassed. Plaintiff also yelled, "lock me up." Id.
Sgt. Randall Rase, who is white, observed Plaintiff's interaction with Manuel and, in an effort to squelch a possible disturbance, moved in to handcuff Plaintiff. When Rase asked Plaintiff to put his hands behind his back, Plaintiff insisted he must be cuffed in the front. Manuel then grabbed Plaintiff's hand and moved it behind his back so that Rase could handcuff him. Upon searching Plaintiff, he was found to have a piece of paper in his pocket related to one of his legal proceedings and was not charged with possession of contraband. Plaintiff was, however, charged with violating rules regarding disruptive behavior and interfering with an officer in the performance of his duty. Plaintiff was the only inmate who did not cooperate with Manuel's search team. Id. at p. 8.
Manuel also called John Dean, an inmate who is white, back for a search because it appeared he had something in his pockets. Dean complied with the search and was found to have "a ball of oatmeal and a card" in his pocket. Id. After Dean produced those items, he was permitted to leave. Dean, who testified at the IGO hearing, also observed other black inmates being stopped for searches. Id.
In analyzing the facts found, the ALJ concluded that the searches performed were legal and that all of the inmates who testified were aware of the rule against taking contraband in and out of the dining hall. Id. at p. 10. During the course of the hearing, Plaintiff admitted he had not seen Dean being searched and the ALJ observed that Plaintiff produced no evidence that "white boys' with bulging pockets' were permitted to pass without being pulled out of line." Id. Further, the ALJ observed that, "it is entirely possible that... other white inmates were stopped, searched, and released before [Plaintiff] could see those events, as demonstrated by the fact that... Dean was stopped and [Plaintiff] did not witness it." Id. at pp. 10-11. Plaintiff's contention that he was singled out because he is a "strident black man" was also rejected by the ALJ because Manuel and Rase provided testimony that he was only handcuffed after he created a disturbance during a controlled movement, i.e., inmates exiting the dining hall. Id. at p. 11. The ALJ further found that there was reasonable grounds to search Plaintiff as he admitted he had a piece of paper in his pocket, supporting Manuel's assertion he was called because of the appearance of his pocket and not the color of his skin. Id. at pp. 11-12. As to Plaintiff's assertion, also made in his Complaint filed in this case, that Manuel called him "Shine, " the ALJ observed that neither Manuel nor Rase were familiar with the term and have never used it. Additionally, Plaintiff admitted he could not hear Manuel when he called him the first time and failed to produce any witness to corroborate the claim a racial slur was used by Manuel. Id. at p. 12. The ALJ also observed that the use of a racial slur alone did not make the actions of Manuel or Rase "inconsistent with the law." Id.
Defendants also provide as evidence the decision by another ALJ concerning Plaintiff's claim he was deliberately prevented from seeing his attorney on July 24, 2012. ECF No. 20 at Ex. 7. The facts found by the ALJ concerning that incident largely mirror Plaintiff's allegations raised in his Complaint. His attorney, Jennifer Bushman, who was representing Plaintiff in a pending criminal charge in Somerset County, came to NBCI on July 24, 2012, for a legal visit. After Plaintiff was informed he had a legal visit, correctional officers arrived to escort Plaintiff to a hearing for a pending notice of infraction. Plaintiff initially refused to go to the disciplinary hearing and argued with staff because he did not want to miss his legal visit. Id. at p. 3. The escort officer encouraged Plaintiff to go to the hearing by telling him it would go quickly, but Plaintiff continued to argue and refuse to leave his cell, escalating the confrontation. Id. at p. 4.
Plaintiff went to his disciplinary hearing and correctional staff discussed whether he should stay for the hearing or be taken to his legal visit, but according to Defendants, Plaintiff agreed to proceed with the hearing. He entered a guilty plea to the three rules he was charged with violating and did not request a postponement of the hearing. During the time it took to resolve Plaintiff's initial refusal to leave his cell and the disciplinary hearing, Plaintiff's attorney left without seeing him. The Prosecutor later entered a nolle prosequi motion for the criminal charges pending against Plaintiff in Somerset County. Id. at p. 4. The ALJ found that there was no evidence that any of the correctional staff engaged in a coordinated effort to deprive Plaintiff of his legal visit in order to force him to communicate with his attorney through the mail as he alleged. Id. at p. 5. Specifically, Sgt. Wedlock testified as a witness for Plaintiff and explained he was in charge of scheduling hearing for notices of infraction on the date of this incident, but that he was not privy to other scheduling information or information about legal visits. Id. at pp. 5-6. Additionally, the evidence presented established that Plaintiff's attorney picked the time and date for the visit, but that it had been approved by NBCI staff. Id. at p. 6. Also absent from the evidence presented by Plaintiff was information as to how long his attorney waited or any indication made by her to NBCI staff that her visit was urgent. Nor was any evidence adduced suggesting that Plaintiff would not have been taken to see his attorney had she remained at the prison. Id.
Defendants move to dismiss or, in the alternative, for summary judgment on the grounds that (1) Plaintiff's claim regarding the strip search was not exhausted through the administrative remedy procedure and must be dismissed, ECF No. 16-1 at pp. 7-9; (2) there was no disparate treatment or racial intent in Lt. Manuel's conduct amounting to a Constitutional violation, id. at p. 9-10; and (3) the July 24, 2012, incident in which Plaintiff missed an attorney ...