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Berry v. Hershberger

United States District Court, D. Maryland

July 30, 2015

JAMES BERRY, Plaintiff,
DPSCS SEC. GREGG L. HERSHBERGER, et al., Defendants.


CATHERINE C. BLAKE, District Judge.

Pending in the above-entitled civil rights action is defendants' motion to dismiss or for summary judgment, (ECF No. 23), which is opposed by plaintiff, (ECF No. 25). Also pending is plaintiff's motion for appointment of counsel. (ECF No. 3). 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 asserts he is unable to afford counsel, he is incompetent, and all pleadings filed were prepared by another inmate who avers he will no longer be able to assist plaintiff if or when he is moved from plaintiff's housing unit.[1] (ECF No. 3.) A federal district court judge's power to appoint counsel under 28 U.S.C. § 1915(e)(1) is discretionary, and may be considered where an indigent claimant presents exceptional circumstances. See, e.g., Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Upon careful consideration of the motions and previous filings by plaintiff, the court finds that he has demonstrated the wherewithal either to articulate the legal and factual basis of his claims himself or to secure meaningful assistance in doing so. No hearing is necessary to the disposition of this case, and plaintiff has filed an opposition to the dispositive motion. There are no exceptional circumstances that would warrant the appointment of an attorney to represent plaintiff under § 1915(e)(1) and the motion for appointment of counsel shall be denied.


Plaintiff, a pre-trial detainee, was transferred to Roxbury Correctional Institution ("RCI"), located in Hagerstown, Maryland, from the Baltimore City Detention Center ("BCDC") on May 10, 2013. Plaintiff asserts the transfer occurred without legitimate security reasons to justify it. He claims the transfer "over 200 miles from the court" where he is being prosecuted has hindered his ability to meet with his attorney and assist in the preparation of his defense. (ECF No. 1 at 6.) Plaintiff claims that at BCDC there was a private visiting booth where he could meet with his attorney as well as a secure phone line. (Id. ) He further alleges that his assigned case manager at RCI told him that the State's Attorney assigned to his case in Baltimore City told RCI staff not to allow plaintiff a secure line or private visits with his attorney; that all encounters with his attorney would be recorded; and that his mail would be monitored for incriminating evidence that could be used in his prosecution. (Id. at 7.) Plaintiff claims that his case manager further advised that he would not have any privacy and that the case manager would testify against plaintiff in his criminal trial with any incriminating information he overheard. (Id. )

Plaintiff alleges that on May 5, 2014, Warden J. Michael Stouffer ordered Lt. Camford to search his cell. (Id. at 8.) At the time, plaintiff occupied a single cell in RCI's special management unit. Officers Trumpower, Thomas, Scott, and Short arrived at plaintiff's cell, handcuffed him, and told him his cell would be searched. Plaintiff claims the door to his cell was opened before he was handcuffed. Trumpower, who became impatient with the time it took plaintiff to put pants on, came into the cell, pushed plaintiff against the wall, and put handcuffs on plaintiff. When plaintiff commented that "all this was unnecessary, " he alleges that Trumpower threatened to use pepper spray on him. (Id. at 8.) Plaintiff claims that Trumpower dragged plaintiff backwards by holding onto the chain in the middle of the handcuffs and, using his other hand to hold onto plaintiff's arm, Trumpower threw plaintiff against the cell wall and slammed him into the cell door. As a result, plaintiff claims his right shoulder and both wrists were injured. (Id. at 9.)

Officers Thomas, Scott, and Short went into plaintiff's cell and began throwing his property, including legal papers, around the cell. (Id. at 9.) Plaintiff asserts that Thomas, Scott, and Short also witnessed Trumpower's assault on him, but failed to do anything about it or report it to their supervisors. Plaintiff claims that Trumpower repeatedly placed him in an "upper shoulder lock" and was antagonizing and taunting plaintiff while his cell was searched. (Id. ) During the search, plaintiff claims that he was asked where his mail was, but as he began to speak Trumpower told him to shut up and jerked on the handcuffs so hard it made plaintiff "yelp[]." (Id. ) Plaintiff claims that Thomas asked Trumpower why he was "doing this" to plaintiff since plaintiff was asked to assist in locating his mail. Thomas then asked Trumpower to leave because he was antagonizing plaintiff. Trumpower left and the mail was located in plaintiff's cell. Plaintiff states he asked to speak with Lt. Appel because he wanted to understand what was being done with his mail and the notes he was preparing to assist in his defense. Plaintiff alleges that his family's personal information was contained in the mail and, in the past, information regarding his family had been leaked and people "were murdered due to legal problems." (Id. at 10.)

After returning to his cell following the search, plaintiff states he noticed his back was "burning" and that he was bleeding as a result of the force used against him by Trumpower. (Id. ) He asked to report the assault and to be seen by medical staff for two hours before an inmate sanitation worker on the tier asked a correctional officer to assist plaintiff. Officer Thomas reported to plaintiff's cell and he was taken to medical a short time later.[2] (Id. at 11.) Plaintiff told Lt. Appel that he wanted to press criminal charges against the officers who searched his cell for unnecessary use of force, assault, and destruction and theft of property. He claims, however, he has not been interviewed by a detective for purposes of pursuing those charges. (Id. at 12.)

Plaintiff claims that after reporting the assault he was targeted for retaliation by correctional staff through deprivation of showers and attorney calls and his family is harassed during visits. (Id. ) On September 25, 2014, plaintiff was transferred to "a more harsh and secure prison" without explanation or prior hearing. (Id. ) Plaintiff asserts that his transfer to Western Correctional Institution ("WCI") in Cumberland, Maryland has hindered his ability to see his attorney to aid the preparation of his defense. (Id. at 13.) He further claims that while he was incarcerated at RCI, his attorney was denied entry to see him on numerous occasions and that he was denied access to the law library. (Id. )

In addition to the alleged assault and difficulties with legal visits, plaintiff alleges that he was denied his right to practice his chosen religion while he was confined at RCI. (Id. ) He claims he asked Chaplain Kitchen on July 20, 2013, to place his name on the Ramadan fast list so that he could receive his meals during non-daylight hours. Plaintiff claims that Kitchen told him he could not participate in Ramadan because of his pre-trial status. Additionally, plaintiff claims Kitchen told him he could not order any religious articles such as a prayer rug, because of his pre-trial status. Plaintiff asserts he was denied participation in Ramadan during 2013 and 2014. (Id. at 13-14.) As relief, plaintiff seeks an order requiring his transfer back to BCDC and monetary damages. (Id. at 16-17.)

Defendants deny plaintiff's allegation that they threatened, harassed, or assaulted him. (ECF No. 23 Exs. 1-4.) They claim plaintiff became agitated during the search of his cell and reentered the cell, requiring his removal by Trumpower and Thomas using a "hands on escort." (ECF No. 23 Ex. 1 at 2.) They further assert that the medical reports support their claim that excessive force was not used as the only documented injury to plaintiff was a three-inch scratch. (ECF No. 23 Ex. 6 at 12-18.)

With regard to plaintiff's claim of retaliation, defendants provide segregation assignment sheets from April through September, which demonstrate that plaintiff had regular access to showers and recreation. (Id. at 5-10.) Additionally, defendants assert plaintiff's claims regarding denial of visits with his attorney were dismissed in the administrative remedy process because he had two visits from his attorneys two days before the complaint was filed. (Id. at 78.)

Defendant Kitchen, the Chaplain at RCI, states he does not recall plaintiff's request to participate in Ramadan 2014, but in 2013 plaintiff was not registered as a Muslim and this was the reason he was not allowed to participate. (ECF No. 23 Ex. 5.) Kitchen further states that there was no indication in plaintiff's file regarding his religious preference and his request for participation was shortly before Ramadan commenced. (Id. ) In order to participate in Ramadan, an inmate must have completed a religious preference card designating an appropriate religious orientation at least 30 days before Ramadan commences. (Id. ) Kitchen asserts that when plaintiff was informed he needed to submit the appropriate paperwork, he became belligerent and refused to do so. (Id. ) With regard to plaintiff's requests to acquire religious articles such as a prayer rug, Kitchen states that under "DPSCS Religious Services Manual 140.001, Section VI J, an inmate may possess approved religious property items for the religion for which they ...

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