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Lopez v. Stewart

United States District Court, D. Maryland

June 14, 2016

HIRAM LOPEZ, #20357-055, Plaintiff



         Self-represented Plaintiff Hiram Lopez, a federal prisoner currently confined at the Federal Correctional Institution in Memphis, Tennessee, is suing Defendants in their official and personal capacities, seeking money damages and alleging they failed to provide him constitutionally adequate protection from violence while he was housed at Federal Correctional Institution in Cumberland, Maryland ("FCI-Cumberland").[1] (ECF 1, 15, 16). Defendants Timothy Stewart, Warden at FCI-Cumberland, and FCI-Cumberland Special Investigative Services ("SIS") Lieutenant Mark Lathrop, [2] by their counsel, have filed a Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF 20) and verified exhibits and declarations. Consonant with the dictates of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Lopez was notified Defendants' Motion will be treated as a Motion for Summary Judgment and he was entitled to file an opposition with materials in support. (ECF 23). Lopez filed an opposition to the Motion for Summary Judgment (ECF 29), and Defendants have filed an Reply (ECF 30) to which Lopez filed a Surreply.[3] (ECF No. 31).

         The case is ripe for disposition. After considering the pleadings, exhibits, and applicable law, the Court now rules pursuant to Local Rule 105.6 (D. Md. 2014), as a hearing is deemed unnecessary. For reasons to follow, Defendants' Motion for Summary Judgment will be GRANTED.


         Lopez was housed at FCI-Cumberland between December 15, 2014 and October 30, 2015.[4] He alleges that Defendants ignored his concerns about his safety in the general prison population and forced him out of the Special Housing Unit ("SHU"), resulting in injury. He also alleges he lost good time credits and was issued a disciplinary report when he refused to leave the SHU. He seeks $1, 135, 000.00 in damages, expungement of all disciplinary reports and reinstatement of lost good time occasioned by his refusal to leave the SHU, and abolition of the Bureau of Prison's ("BOP") protective custody verification policy.

         Lopez states that on February 3, 2015, he was attacked by one of his co-defendants, Justin Augus, "after I refused to check in SHU."[5] (ECF No. 1 at p. 3). As a result of the altercation, both Lopez and Augus were sent to the SHU. After release from the SHU, Lopez returned to general population where on March 23, 2015, "New York inmates accosted me with demands for me to checkin [to the SHU]and when I tried to explain SIS orders..."Blaze" punched me in the face." (ECF 1 at pp. 3-4). Although SIS claimed "they received information that it would be ok" for Lopez to return to general population, he was again "threatened, and returned to the SHU."

         A. Defendants' Response

         In support of the Motion for Summary Judgment, Defendants have filed copies of prison records and regulations and the declaration of Defendant Lathrop. They indicate that on February 3, 2015, six weeks after his arrival at FCI-Cumberland, Lopez was found to have injuries consistent with a physical altercation. (ECF 20-5, Incident Report CUM-15-0023, at p. 2). Recreation staff escorted Lopez to Lathrop's office[6] and while Lopez was there, reviewed the VICON camera system. Video showed that Lopez and another prisoner entered the bathroom in the gym at 12:40 p.m. Two minutes later, they left the restroom. Lopez's shirt was ripped and he appeared to have been in a fight. (Id. at pp. 2-3). The other prisoner was summoned to Lathrop's office and visually examined; he, too, showed signs of having been in a fight. Both men were taken to Health Services for assessment. (Id. at p. 3).

         Lopez told Health Services staff the fight occurred because the other prisoner had "more time to serve than me, we are co-defendants." (ECF 20-6, Hamilton Deck, at ¶ 3; ECF 20-4, Medical Record. Lopez had sustained scratches, bleeding, redness and swelling, and bruising on the right temple and left upper chest. Treatment was provided. (Id.).

         Lopez was placed in the SHU while SIS staff completed its investigation of the incident. He was found guilty through the prison disciplinary process of fighting on February 18, 2015. (ECF 20-9, Request for Transfer). SIS investigators found no threat to Lopez's safety in leaving the SHU, and on June 5, 2015, Lopez was ordered to return to general population. (ECF 20-2, Lathrop Decl. at ¶¶ 5-6).

         On an unspecified date, Lopez told prison staff he had been punched in the back of the head by an unknown assailant. (ECF 1 at ¶ 7). He was placed in the SHU, and another SIS investigation was convened. Lopez told staff a fellow prisoner he encountered in the dining area told him to go back to the SHU for his safety. SIS staff reviewed footrage of the dining hall and could not find Lopez in the area. (ECF 20- 2, Lathrop Decl. at ¶ 8). Because no threat was found, on June 5, 2015, Lopez was ordered to return to general population. Lopez refused the order, and on June 11, 2015, was sanctioned with 90 days of lost commissary privileges for refusing to leave the SHU, based on his belief that he was unsafe. (ECF 22-1 at p. 70).

         On June 23, 2015, he again refused to leave the SHU due to concerns for his safety, and received 30 days of lost commissary privileges and 15 days loss of Trulincs.[7] (Id. at p. 71). He returned to general population on June 25, 2015. (ECF 1 at p. 10). On August 29, 2015, Defendant Stewart requested Lopez's transfer to another medium security prison, due to poor adjustment. The transfer occurred on October 30, 2015. (ECF 20-9).

         B. Plaintiffs Opposition[8]

         Lopez states that when designated to FCI-Cumberland on December 15, 2014, he informed SIS personnel that he had been a cooperator. (ECF 1; ECF 29, Reply Mem. at p. 2). He indicated that SIS knew Lopez's co-defendant previously was housed at FCI-Cumberland, and transferred the co-defendant a month before Lopez's arrival. (Id.). Despite this knowledge, prison personnel placed Lopez in general population, where one of his co-defendant's "friends from the NY Car[9]...on March 23rd" assaulted Lopez following his release from the SHU, while others threatened him with harm.[10] (Id. at pp. 2-3).

         Lopez also claims that in late April or early May of 2015, Lopez was threatened with transfer if he did not tell SIS investigators who assaulted him. (Id. at p. 3). Lopez identified his assailant, who was placed in the SHU in a cell next to Lopez.[11] He complains that he was given "45 days" as a sanction for "fighting with his co-defendant" but the co-defendant received a lesser sanction of "14 days" and was released to general population at the same time as Lopez. (Id. at pp. 4-5). Lopez states that a disciplinary hearing officer later restored Lopez's good conduct credits on the basis that the fight occurred because SIS did not thoroughly investigate that the two men would be housed at the same institution.[12] (Id. at pp. 5-6, 11-12). Lopez provides case citation of Eighth and Fourteenth Amendment law and claims that SIS "failed to follow Bureau of Prisons ("BOP") policy by not investigation [his] situation properly or at all." (Id. at p. 15).

         C. Defendants' Reply

         Defendants reiterate their statements that Lopez was involved in one physical altercation in February of 2015, and suffered minor injuries which were immediately assessed and treated by medical personnel. Lopez was placed in the SHU while SIS staff conducted an investigation to identify potential ongoing threats to his safety. No threats were found, and Lopez was instructed to return to general population. When Lopez claimed multiple prisoners continued to threaten him, SIS personnel convened several investigations and found no viable threat to his safety. Defendants have been ...

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