United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
Pending is a Motion to Dismiss or for Summary Judgment filed by Defendants Warden Richard D. Dovey, Lt. Richard Thomas, Sgt. Joshua Cast and Sgt. Robert Sellers. ECF No. 12. Plaintiff has not filed a response. 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.
Plaintiff is a Maryland Division of Correction (“DOC”) prisoner currently incarcerated at Eastern Correctional Institution (“ECI”) in Westover, Maryland. Plaintiff seeks unspecified injunctive and declaratory relief and money damages against Defendants in their individual capacities pursuant to the civil rights act, 42 U.S.C. § 1983 and the Prison Rape Eliminate Act (“PREA”). He alleges that on September 3, 2014, while housed at Maryland Correctional Institution - Hagerstown (“MCIH”) he was sexually assaulted by fellow prisoner Thomas Posey, resulting in a “physical altercation.” ECF No. 1 at pp. 1, 3. Plaintiff contends that he informed Defendants Sellers, Castle, and Thomas as well as other correctional officers about the events that led up to the physical altercation, but received no response. ECF No. 1 at p. 3. He further claims that Defendants failed to investigate the sexual assault, failed to report the assault to the Internal Investigative Division (“IID”), and treated him like a suspect, rather than as a victim. Id. Plaintiff also claims his Administrative Remedy Procedure (“ARP”) complaint and appeal concerning the incident were ignored. Id.
Defendants present a far different version of events. On September 3, 2014, at approximately 7:10 p.m., as G-1 Tier at MCI-H was preparing to exit to the large courtyard for recreation, C.O. II Tammy Shatzer called a 10-10 code (fight in progress) after she observed Plaintiff and Thomas Posey striking each other in the head and torso. ECF No. 12-4 at pp. 4, 11 and 14 (September 4, 2014 Memorandum to Director of Security Operations from Ronald B. Brezler, MCI-H’s Chief of Security, attaching Serious Incident Report (SIR) #14-098). Both men were ordered to stop fighting but initially failed to comply. Officer Nathan Ellis handcuffed and escorted Posey, while Officer Brooks Caskey handcuffed and escorted Plaintiff. Officer Corey Swisher recovered the homemade weapon - a “rock in a sock” - and Officer Jonathan Weaver recovered bloody clothing. Id. at pp. 3-8 and pp. 20-21. Both men were escorted to the infirmary where they were examined by medical staff. Id. at pp. 4-8 and 16-19. Plaintiff denied receiving any injuries from the altercation. Id. at pp. 16-17. When examined by Laura Ausherman, R.N., no injuries were found on Plaintiff’s scalp, torso, extremities, hands, or beneath his socks. Id.; see also ECF No. 12-18 (Medical and Psychological Record, September through December 2014). Posey, on the other hand, suffered three visible puncture wounds to the scalp that required sutures. ECF No. 12-4 at pp. 18-19. Both men, the blood spill, and the bloody clothing were photographed. Id. at pp. 22-32.
In his written statement, Plaintiff stated that “this has been going on for a month or so, ” and that Posey was “pushing up on me.” coming to his cell, getting him out for showers, and coming to his slot asking him if he needed anything. Id. at p. 9. Plaintiff stated that approximately a month earlier he told Posey that he “did not know what type of time he was on, ” but Plaintiff was not on any “homosexual time or faggy time, ” and Posey was to stay away from him. Id. Plaintiff indicated that Posey stayed away for a couple of weeks, but started to pursue him again. Id. Plaintiff stated that on Sunday, August 31, 2014, Posey placed a note in a newspaper stating he was attracted to Plaintiff and fond of his body, and if Plaintiff let him “show him, ” Plaintiff would not be “displeased.” Id. Plaintiff concluded his inmate statement claiming that out of fear for his life and “manhood” he hit Posey with a rock. Id. The Internal Investigative Unit (IIU) was contacted, entered the incident into the barracks log, but declined to assign a case number. Id. at pp. 1 and 4.
Both inmates received infractions and were moved to the segregation unit and placed on administrative segregation pending adjustment. Id. at pp. 4, 10-15; ECF No. 12-6 (Plaintiff’s Adjustment Hearing Record dated September 11, 2014, Case No. 2014-004 and ECF No. 12-8, Posey’s Adjustment Hearing Record, Case No. 2014-007); ECF No. 12-8 (Offender Case Management System (OCMS) Printout of Plaintiff’s Traffic History), and ECF No. 12-9 (OCMS Printout of Posey’s Traffic History). Both prisoners were charged with violating inmate rule #102 (assault or battery on another inmate), and served with the notices of infraction the day of the incident. ECF No. 12-6 at pp. 10-12 and ECF No. 12-7 at pp. 10-12. At their respective adjustment hearings held on September 11, 2014, before Adjustment Hearing Officer Peter Juknelis, both pled guilty to the rule violation. Plaintiff received 180 days on disciplinary segregation from September 3, 2014, and a mandatory loss of 120 days of good conduct credits (GCC), and Posey received 30 days on disciplinary segregation from September 3, 2014, and a mandatory loss of 30 GCC. ECF No. 12-6 at pp. 4-12 and ECF No. 12-7 at pp. 4-12. Both were served with the hearing officer’s recommendation and sanctions that same day. ECF No. 12-6 at p. 4 and ECF No. 12-7 at p. 4. On September 29, 2014, Warden Dovey affirmed Hearing Officer Juknelis’ recommendation and sanctions, and both prisoners were served with the Warden’s Decision on October 1, 2014. ECF No. 12-6 at pp. 1-3 and ECF No. 12-7 at pp. 1-3.
Defendant Thomas avers that he is the Lieutenant in charge of Housing Units (H.U.’s) #3 and #4 (North side), assigned to the 4-12 shift. ECF No. 12-10 (Declaration of Lt. Richard Thomas). Thomas further avers that Plaintiff was assigned to H.U. #5 (South side) at the time of the incident, and had not been housed in H.U.’s #3 or #4 since 2013. Id. at ¶4. Thomas further states under oath that he can recall no interaction with Plaintiff prior to the incident of September 3, 2014. Id. at ¶5.
Defendant Sellers avers that he photographed Plaintiff in August 2014, and at that time Plaintiff did not disclose anything about a “situation” of any kind. ECF No. 12-11 at ¶3 (Declaration of Sgt. Robert Sellers). Sellers further avers that he did not speak with Plaintiff again until the night of the assault. Id. at ¶4.
Defendant Castle avers that at no time prior to the assault did Plaintiff bring any type of information concerning a problem to his attention. ECF No. 12-12 at ¶3 (Declaration of Sgt. Joshua Castle). Castle further avers that Plaintiff never stated that he was physically assaulted by inmate Posey, sexually or otherwise. Id. Castle avers that Plaintiff was not assigned to his housing unit at the time of the assault incident. Id. Castle states under oath that following the assault on September 3, 2014, he interviewed Plaintiff, who openly admitted to assaulting Posey. Id. at ¶4. When Castle asked him why he did it, Plaintiff stated that Posey was “hitting on him;” when the cell slots were open due to heat, Posey would approach his cell and always attempt to talk to him, passing him newspapers and such. Id. Castle avers that Plaintiff proceeded to tell him that on the day before the assault, Plaintiff received a newspaper from Posey containing a note from him stating that he “liked his body.” Id. When Castle asked Plaintiff if he still had the note, Plaintiff stated that he threw it away, and remained in his cell for a day thinking about what to do about it before ultimately deciding to assault Posey. Id. Castle also avers that at no point did Plaintiff state that he was assaulted, sexually or otherwise, prior to his attack on Posey. Id. Sgt. Castle indicates that Plaintiff stated that he felt that he could not let the incident with the newspaper go because he had a long sentence to do and that he felt it would open others up to try to “push up on him.” Id.
Betty McNamee, Administrative Aide to the Warden/Litigation Coordinator for MCIH, avers that all incoming letters to the Warden are logged on the computer into a database. ECF No. 12-13 at ¶3 (Declaration of Betty McNamee). McNamee further states that she reviewed the log and found that the Warden received five items of correspondence from Plaintiff. Id. On August 5, 2014, Plaintiff made a request to reinstate visits; on September 3, 2014, Plaintiff complained about the mail; and on October 2, November 5, and December 2, 2014, Plaintiff requested a decrease in his segregation sentence. On August 8, 2014, Defendant Dovey reinstated visits, effective that day. Id. The mail complaint was referred to Administrative Captain Wingert, and the requests for a decrease in segregation were referred to Salvatore Mauriello, Correctional Case Management Specialist II (CCMS II), for handling. Id.
Case Manager Kelly Easton avers that on February 27, 2015, Plaintiff was placed on “administrative segregation 120 status.” ECF No. 12-14 at ¶3 with attachments (Declaration of Kelly Easton, CCMS II). Easton further states that on March 2, 2015, she chaired an administrative segregation team that interviewed Plaintiff. Id. at ¶4. At that interview, Easton explained to Plaintiff that he had been placed on administrative segregation 120 status because he has a documented enemy at MCI-H, and would be placed on “any medium security” transfer list. Id. at ¶¶4 and 6 and pp. 3-6. Easton further avers that Plaintiff was informed that he would be reviewed every 30 days until he was transferred. Id. Plaintiff made no mention of a sexual assault to the team during that interview. Id. Easton indicates this interview was the sole time she saw and spoke with Plaintiff. Id. at ¶5. Plaintiff was assigned to disciplinary segregation status from September 11, 2014 to March 2, 2015, and Salvatore Mauriello was assigned as his case manager. Id.
On April 3, 2015, Plaintiff filed ARP MCI-H #0198-15, alleging that he was sexually assaulted by Posey on September 3, 2014. ECF No. 12-15 (ARP MCI-H #0198-15, dated April 3, 2015, ARP Case Summary dated April 14, 2015, ARP Response dated April 15, 2015, with ARP Appeal dated April 25, 2015, and ARP Appeal Response dated May 15, 2015, attached). Plaintiff’s ARP was investigated and dismissed on September 15, 2015, because on September 3, 2014, the day of the altercation between Plaintiff and Posey, Plaintiff reported that Posey made sexual comments to him, not that he was sexually assaulted by inmate Posey. Id. at p. 1. The response noted that IIU declined to assign a case number for the incident, and that Plaintiff had been interviewed several times since the incident, and did not report being sexually assaulted. Id. The response also noted that Plaintiff was placed on administrative segregation for his protection following the incident. Id.
On April 24, 2015, Plaintiff filed an ARP Appeal that was investigated and dismissed on May 15, 2015, because the Warden fully addressed Plaintiff’s complaint. The dismissal further noted that according to Operating Procedure Statement (“OPS”) 185.0002, “The Department does not permit the use of an informal resolution process or ARP to resolve complaints of rape, sexual assault, sexual harassment, sexual abuse misconduct, inmate on inmate sexual conduct, or other areas afforded protections by standards established under the authority of the Prison Rape Elimination Act (PREA), and related Department procedures.” Plaintiff was advised that no further action was warranted through the ARP process. Id. at pp. 9-11.
As noted, IID initially declined to assign a case number because the incident was reported as an assault involving mutual combatants. ECF No. 12-16 at p. 2 (Department of Public Safety and Correctional Services (DPSCS) Intelligence & Investigative Division (IID) Report, Case No.: 15-35-00658 I/IR, with Undated Certification Declaration of Britt Bringle, Management Associate, attached). It was noted that Plaintiff alleged the incident that occurred on September 3, 2014, was the result of Posey’s advances on him, and Plaintiff claimed that he was forced to take action due to Posey’s attempts to take sexual advantage of him. Id. Because the incident pertained to Plaintiff’s claim of sexual assault by inmate Posey, IID’s then Director, Mark J. Carter, determined that a case number should be issued to investigate the allegations of a sexual assault. Id. The original SIR packet and Matters of Record (MORs) were attached to the IID Report. Id. Plaintiff was interviewed by Detective/Sergeant William Justice. Id. at p. 5. During that interview, Plaintiff stated that Posey told him that he was sexually attracted to him, but there was no sexual contact between them. Id. Because there was no sexual contact, no criminal charges were filed; no further investigation by IID was needed; and the case was closed. Id. Pursuant to PREA standards, on June 18, 2015, Plaintiff was notified of the disposition of IID’s investigation, and both local and regional PREA Compliance Coordinators were notified ...