United States District Court, D. Maryland
RAYMOND D. HURT, Plaintiff
WHITE, et al., Defendants.
DeBORAH K. CHASANOW, District Judge.
Pending is Defendants' Motion to Dismiss or for Summary Judgment. ECF No. 22. Plaintiff opposes the motion through a Cross-Motion for Summary Judgment (ECF No. 26) and Amended Cross-Motion for Summary Judgment (ECF No. 28). Additionally, Plaintiff seeks to amend the Complaint (ECF No. 25) and requests appointment of counsel (ECF No. 29). The court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014).
In his Motion for Appointment of Counsel, Plaintiff states his incarceration greatly inhibits his ability to litigate this case and that his efforts to obtain an attorney have been unsuccessful. ECF No. 29. A federal district court judge's power to appoint counsel under 28 U.S.C. § 1915(e)(1) is a discretionary one, and may be considered where an indigent claimant presents exceptional circumstances. See Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975); see also Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982). Upon careful consideration of the motions and previous filings by Plaintiff, the court finds that he has demonstrated the wherewithal to either articulate the legal and factual basis of his claims himself or secure meaningful assistance in doing so. No hearing is necessary to the disposition of this case and there are no exceptional circumstances that would warrant the appointment of an attorney to represent Plaintiff under § 1915(e)(1). The Motion for Appointment of Counsel shall be denied.
Plaintiff, Raymond D. Hurt, is an inmate confined to North Branch Correctional Institution ("NBCI") in Cumberland, Maryland. He asserts that On April 26, 2011, Case Manager, Mr. White, "sanctioned Plaintiff's placement into a housing unit (housing unit 4, NBCI) which contained numerous known and flagged members of [Plaintiff's] known and flagged enemy gang, DMI." ECF No. 1 at p. 3. Plaintiff claims that, two days after his placement in housing unit 4, he was stabbed thirteen times in the face, neck and head. Id. Following the assault, Plaintiff was charged with an institutional infraction asserting he was the aggressor in the fight. As a result of the infraction, Plaintiff lost certain property and received one year of disciplinary segregation. Plaintiff claims the infraction is "fraudulent" and that surveillance video will establish he was run down by two knife-wielding inmates and "subsequently chopped up." Id. Plaintiff maintains he was unarmed when the assault occurred. Id. Plaintiff asserts this assault was ordered by the Aryan Brotherhood. Id. at ¶ 7.
Plaintiff further alleges that in June of 2011 he was transferred from NBCI to Western Correctional Institution ("WCI"). At that time his assigned case manager, Mr. Bittinger, ignored the fact that Plaintiff is a known white supremacist, and oversaw Plaintiff's placement into a cell with inmates who are known enemies. Plaintiff states that at that time there was documentation of his prior altercations with the DMI, the Bloods, and the Aryan Brotherhood security threat groups. Plaintiff claims this assignment resulted in several "pit fights" or fights staged between Plaintiff and his cellmates at the behest of correctional officials. ECF No. 1 at p. 3.
The first of the alleged pit fights occurred on November 10, 2011, "days after" Plaintiff was placed into a cell with an Hispanic inmate (Moreno #365638), who Plaintiff claims is a member of the MS-13 gang. Plaintiff states he was not injured during the fight, but received an infraction "for defending himself in this corrections staff orchestrated fight." Id.
Plaintiff claims he was involved in another forced altercation on November 29, 2011, minutes after being placed in a cell with inmate Garrison, who Plaintiff states is a known member of the Bloods. Plaintiff states that both Bittinger and Lt. Miller, who was in charge of the housing unit where the fight occurred, are responsible for the fight occurring. He further claims that he sustained "objectively serious" injuries and was charged with an institutional infraction. Id.
Plaintiff states he was moved into a cell with inmate Bennett, who Plaintiff asserts was a known member of the Aryan Brotherhood. On March 6, 2012, Bennett cut Plaintiff's face numerous times with a razor blade and he sustained "objectively serious" injuries. Plaintiff asserts he did not receive an institutional infraction following this altercation. Id. Four days after this assault, Plaintiff was transferred back to NBCI, where he claims he was immediately subjected to threats by correctional officers "regarding impending additional prison time for [Plaintiff's] actions" during the November 29, 2011 forced altercation. Id.
Plaintiff claims that, on May 10, 2012, he was being escorted by one officer back to his housing unit after a dental appointment when an unknown officer in central control opened the main gate and allowed over fifty unrestrained inmates into the area where Plaintiff was located. At the time of his escort, Plaintiff was in handcuffs. Plaintiff states that many of the inmates who walked past him were members of gangs that are his enemy, but "by some miracle" he was not attacked. Id. Plaintiff characterizes this action as an orchestrated attempt to have him murdered by another inmate. Id.
Plaintiff adds that Defendants have exhibited a callous disregard for his safety in retaliation for the numerous grievances he has filed. He alleges his complaints have been ignored by Defendants Zais and Bishop. He claims, as an example of the harassment to which he has been subjected, that a correctional officer instructed another inmate housed in a cell next to him to repeatedly flush his toilet in an effort to cause Plaintiff anxiety. ECF No. 1 at p. 4.
Plaintiff states that, on November 29, 2013, he "sustained a gaping one-inch by one-half inch muscle-deep wound on his outer forearm." Id. He asserts that Dr. Ottey instructed RN Kristi Cortez not to suture the wound, forcing Plaintiff to "go about with his innards largely exposed until natural healing occurred by December 30, 2013." Id. Plaintiff claims he filed an administrative remedy procedure request ("ARP") regarding the failure to suture the wound and appealed the warden's denial to the Commissioner and the Inmate Grievance Office ("IGO"), but heard nothing in response. Id., see also ECF No. 1-7.
Defendants admit Plaintiff was assaulted by two inmates on April 28, 2011, and that Plaintiff sustained serious injuries as a result. An investigation into the assault by the Internal Investigation Unit ("IIU"), however, revealed that the assault occurred as a result of a disagreement between Plaintiff and his assailants, followed by a threat made by Plaintiff. Plaintiff was assaulted by inmates Michael Gross and Shawn Jones when cell doors were opened for inmates to exit and report for dinner. Gross and Jones exited their separate cells and ran toward the back of the tier where they assaulted Plaintiff. ECF No. 22 at Ex. 1, p. 9. Gross, who was the main assailant, had a weapon which was fashioned from a metal speaker cover later determined to be taken from inside his cell. The weapon was attached to a glove Gross was wearing on his right hand. Id. at pp. 10 - 11, 12, and 19. In addition to the weapon removed from Gross' hand, two smaller knife-like weapons were recovered from the scene of the assault. ECF No. 22 at Ex. 1, pp. 14 and 26.
Jones was interviewed regarding the assault. He explained that Plaintiff had been moved from housing unit #1 to housing unit #4 a week earlier. Id. at p. 12. It was Jones' understanding that Plaintiff was going to be placed in a behavior modification program for inmates who were on segregation and, once in general population would participate in the program. Id. Jones claimed he was a "mentor" for the inmates in the program and that he tried "to steer trouble inmates in the right direction." Id. Jones explained that on the day before the assault, Plaintiff, Gross, and Jones were in the recreation yard together. Id. At that time, Plaintiff made a comment to Jones about Jones being on medication for hepatitis C and referred to the medication as a "Jew" medication. Id. at p. 13. Jones expressed that Plaintiff should "go about his business" and told Plaintiff he was no longer interested in trying to get him into the program. Id. Jones offered that the exchange upset him because "he was only trying to help another white guy.'" Id.
Jones claimed that on the day of the assault, he was doing laundry and Plaintiff approached him and said, "I'm coming at you at dinner, be on point.'" Id. Jones then admitted that when he was let out of his cell for dinner, he went down to where Plaintiff's cell was "and tried to kill him." Id. Jones claimed Plaintiff was a threat and alleged that it was he, not Gross, who had struck Plaintiff with the speaker cover. Id. Review of the video surveillance by IIU confirmed that Gross was the main culprit in the assault on Plaintiff while Jones punched Plaintiff in the face and body. Id. at p. 9. Additionally, a search of the cells occupied by Gross and Jones confirmed the speaker cover was missing from Gross' and not Jones' cell. Id. Inmate Gross did not provide a statement to IIU, but after initially refusing to comment stated, "man threatened my life. I had to what I had to do" as he departed the office. Id. at p. 14.
Plaintiff was transported to the Western Maryland Regional Medical Center for treatment of his injuries immediately following the assault. Id. at p. 8. Shortly after his arrival in the emergency room, Plaintiff was taken to surgery and was unavailable to provide a statement to the IIU investigator. Id. On April 29, 2011, another attempt was made to interview Plaintiff at the hospital, but, at that time, Plaintiff was in the Intensive Care Unit, sedated, and on a ventilator. Id. at p. 15.
Medical reports regarding Plaintiff's injuries were provided to the IIU and established he had been stabbed seven times in the left side of his neck with the most serious of the wounds being 31 cm. Id. at p. 16. Plaintiff also suffered a partial skull fracture. Id. Inmate Gross sustained a laceration to his left hand. Id.
Plaintiff was later released from the hospital and transferred to the infirmary at Western Correctional Institution, where he was interviewed by the IIU investigator on May 2, 2011. ECF No. 22 at Ex. 1, p. 17. Plaintiff claimed during the interview he could not remember what happened the day of the assault after walking out of his cell, but admitted to having a problem with another inmate earlier in the day. Id. Plaintiff further stated that this inmate had been disrespectful to him in the recreation yard on the evening prior to the assault and admitted telling the inmate if he had a problem they could "settle it at dinner time." Id. at p. 18. He claimed he did not know the identity of his assailants or where their assigned housing was located. Plaintiff further advised he would not testify at any judicial proceeding regarding the incident. Id. According to the OBSCIS Alerts and OBSCIS II Classification Data reviewed by the IIU investigator, Plaintiff is a validated member of the Security Threat Group, Aryan Brotherhood; Gross is a validated member of "an unidentified Security Threat Group, White Supremacist;'" and Jones is a validated member of Dead Man Inc. Id., see also ECF No. 22, Ex. 2. Following Plaintiff's assault, both Gross and Jones were documented as Plaintiff's enemies, but had not been previously listed as such. ECF No. 22 at Ex. 10, pp. 1 - 2.
Plaintiff was placed on administrative segregation pending disciplinary proceedings after his release from the WCI infirmary. He was charged with possession of a weapon after it was determined the two smaller knife-like weapons found at the scene of the April 28, 2011 assault were used by Plaintiff during the fight. ECF No. 22 at Ex. 3, pp. 7 - 10 and 14-16. On May 10, 2011, Plaintiff was found guilty of violating rule 102 (assault or battery on another inmate), 105 (possession of a weapon), and 400 (disobeying a direct lawful order). Id. at p. 9. At the hearing, Plaintiff maintained he did not know what was happening and asked the hearing officer to view the video of the assault. Id. at p. 8. The request for review of the video was denied based on the prison's policy to not provide videos during disciplinary hearings. Id. The hearing officer, Jon Sandstrom, observed that Plaintiff "offered no explanation to account for at least two reports from staff in which he was observed with a weapon... striking another inmate." Id. at p. 9. He further found that the reports provided by staff were credible and reliable, while he found Plaintiff's "defense was half-hearted and perfunctory" and that "it did not ring true." Id. The hearing officer concluded that Plaintiff was "involved in a violent act against an inmate with a weapon and refused orders to stop this activity." Id. As a penalty, Plaintiff was given a total of 300 days segregation, continued indefinite loss of visits, and revocation of 300 days good conduct credits. Id. at p. 10. Upon review of Plaintiff's appeal, Warden Shearin reduced the disciplinary segregation sentence to a total of 250 days; the remaining penalties remained unchanged. Id. at p. 2.
On June 7, 2011, Defendant John White, who was the Administrative Segregation Case Manager at NBCI from March 1, 2009 through October 14, 2012, received a letter from Plaintiff wherein he made threats that he would break away from an escort and assault White, Ms. Smith, and Lt. Harbaugh. A similar letter was received by Ms. Smith. ECF No. 22 at Ex. 7 and Ex. 8, pp. 44 - 49. On the same day the letters were received, Plaintiff broke free from an officer's escort, ran down the hallway into Lt. Harbaugh's office, and "needed to be controlled." Id. at Ex. 8, p. 48. Following that incident, White wrote a Notice of Assignment to Administrative Segregation and Plaintiff was placed on administrative segregation on June 9, 2011. Id. at Ex. 7. At an administrative segregation review held on June 23, 2011, the rationale for keeping Plaintiff on that status noted that, "Hurt has an enemy at NBCI and has a high potential for future assaults as a result of his strong racial opinions and the frequency of which he verbalizes those opinions." Id. at Ex. 8, pp. 48 - 49. John White was chairman of the administrative segregation review team. Id. at p. 48.
In an internal memorandum from NBCI Acting Chief of Psychology Bruce Liller to John White regarding Plaintiff's suitability for assignment to general population dated April 11, 2011, Liller notes that:
Inmate Hurt is currently being treated for depression while Ms. Moulden is attempting to rule out Bi-polar. What appears to be the issue of concern is a longstanding racist mind set (white supremacy) that Ms. ...