United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
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"). (ECF 1, 15, 16).
Defendants Timothy Stewart, Warden at FCI-Cumberland, and
FCI-Cumberland Special Investigative Services
("SIS") Lieutenant Mark Lathrop,  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. (ECF No. 31).
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.
was housed at FCI-Cumberland between December 15, 2014 and
October 30, 2015. 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.
states that on February 3, 2015, he was attacked by one of
his co-defendants, Justin Augus, "after I refused to
check in SHU." (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."
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 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).
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 Â¶ 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.
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 Â¶Â¶ 5-6).
unspecified date, Lopez told prison staff he had been punched
in the back of the head by an unknown assailant. (ECF 1 at Â¶
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 Â¶ 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).
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. (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).
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...on March 23rd"
assaulted Lopez following his release from the SHU, while
others threatened him with harm. (Id. at pp.
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. 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. (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).
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 ...