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Payton v. Bishop

United States District Court, D. Maryland

July 21, 2016

LEVAR PAYTON, #411-397, Plaintiff
WARDEN FRANK B. BISHOP, JR., Defendant LEVAR PAYTON, #411-397, Plaintiff


          Ellen L. Hollander United States District Judge

         Levar Payton, a Maryland Division of Correction (“DOC”) prisoner housed at North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland, filed the above-captioned civil rights actions under 42 U.S.C. § 1983 against Warden Frank B. Bishop, Jr. and Correctional Officer II Dean Rounds, Jr.[1] Defendants in both cases have filed unopposed dispositive motions, supported by numerous exhibits. Civil Action ELH-15-3424, ECF 12; Civil Action ELH-15-3648, ECF 13, as supplemented by ECF 16.[2] Given the similarity of the allegations in the cases, they are best considered together for the purpose of dispositive review, and in the interest of judicial economy.

         No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, defendants’ motions shall be construed as motions for summary judgment and shall be granted.[3]

         I. The Factual Allegations

         A. Plaintiff

         Payton provides little factual detail in his complaints.

         In Civil Action ELH-15-3424, Payton seeks $75, 000 in damages and immediate release from incarceration. He claims violations of the Equal Protection Clause of the Fourteenth Amendment and alleges generally that he was kept in solitary confinement and physically abused by NBCI staff following his alleged rape by a staff member. ECF 1 at 3.[4] Payton also alleges, without factual detail, that he has lost hearing in his left ear, has numbness in his feet caused by walking barefoot, and that unnamed officers have tampered with his mail and deny him medical treatment. The complaint does not state the dates on which such misconduct is alleged to have occurred. In addition, Payton claims that Warden Bishop has refused to respond to his grievances, filed pursuant to the Administrative Remedy Procedure (“ARP”). Id.

         In Civil Action ELH-15-3648, Payton seeks $75, 000 in damages, release from solitary confinement, and release from incarceration. He alleges that Warden Bishop is “unable to govern the prison, ” an inadequacy that “violates due process [and his] constitutional rights.” ECF 1 at 3. Payton also claims that on an unspecified occasion he was “place[d] in a strip cell bare naked after physical sexual abuse.” Id. In addition, Payton asserts that he has lost hearing in the left ear, the cold cell causes foot sores and numbness, and he has been placed on “starvation diets.” Id. He also complains that he spent six days in a cell around September 26, 2015, and needs “serious medical attention, ” including mental health care for “psychotic illnesses.” Id.

         As indicated in Note 1, by Order of March 3, 2016, Payton’s separate action against C.O. Dean Rounds, Jr. (ELH-16-570), concerning, in part, a lack of food due to “starvation diets, ” was permitted to proceed as an amendment or supplement to the Complaint in Civil Action ELH-15-3648. See Civil Action ELH-16-570, ECF 3; Civil Action ELH-15-3648, ECF 10. As supplemented, Payton alleges that Officer Rounds allows “tier workmen to poison [his] meals…” ELH-15-3648, ECF 10-1 at 2.

         B. Defendants

         Defendants have submitted legal memoranda and numerous exhibits, from which the following is gleaned.

         Payton has been housed in the segregation unit at NBCI since January 28, 2014. ELH-15-3648, ECF 13-7, Rounds Decl. at ¶ 4; ECF 13-8, Gursky Decl. at ¶ 4. He receives meals on trays or in bags through a slot in the prison cell door. Id., ECF 13-7 at ¶ 5; ECF 13-8 at ¶ 5. Meals are served by fellow prisoners who are supervised by prison staff. Id., ECF 13-7 at ¶ 6; ECF 13-8 at ¶ 6. Both Officer Rounds and Officer Gursky deny that they have ever refused to provide meals to Payton. Id., ECF 13-7 at ¶¶ 7-8; ECF 13-8 at ¶¶ 7-8.

         Payton was involved in a disturbance on September 19, 2015, when he kicked Officer D. W. Rounds, Sr. in the face. See ELH-15-3648, ECF 16-8 and attachments. Defendant Rounds, Jr. came to the assistance of Officer Rounds, Sr. Id., ECF 16-8 at 4. Payton spit on Rounds, Jr. and attempted to kick him and another officer. Id. at 15. Rounds, Jr. applied pepper spray to Payton to quell Payton’s combative behavior. Id. Thereafter, Payton was taken to the Medical Room for treatment. ECF 16-8 at 4; see also ECF 13-2 at 5.

         Payton was placed on Staff Alert status for a six day period, beginning September 19, 2015. ELH-15-3648, ECF 13-2 at 2-3, Staff Alert Designation Notice; Staff Alert Removal/Review. C.O. II Scott Beeman, an employee of the Maryland Department of Public Safety and Correctional Services (“DPSCS”) for about 14 years, provided a Declaration (ELH-15-3648, ECF 13-4), explaining that Payton was placed on Staff Alert on September 19, 2015, due to his conduct on September 19, 2015. Id. ¶ 4. While on Staff Alert, Payton’s meals were delivered in paper bags, rather than trays. ECF 13-3, Staff Alert Procedures Manual, at 3. To receive the bags, Payton was required to go to the rear of his cell, face the rear wall, and get on his knees. Id.

         Beeman indicated that Payton’s segregation confinement sheet for the period September 19, 2015, to September 25, 2015, reflects the following as to meals: Payton refused morning meals offered during the 7 a.m. to 3 p.m. shift on September 19 and 20, 2015; he refused midday meals offered during the 11 a.m. to 7 p.m. shift on September 20, 21, 23 and 24; and he refused meals offered during the 3 p.m. to 11 p.m. shift on September 19, 20, 21, 22 and 23. ELH-15-3648, ECF 13-4, ¶ 5.

         On September 27, 2015, Payton told Nurse Cassandra Oster that he had been on a hunger strike for seven days. Id., ECF 13-2 at 4, Med. Note of 9/27/15. Oster told Payton to place a sick call request. Id.

         Payton met with Clinical Counselor Lauren Breitzel on September 28, 2015. Breitzel reported Payton’s problems were behavioral, rather than psychologically driven. Id., ECF 13-2 at 5, Onsite Consult of 9/28/15. Breitzel noted that housing unit staff would continue to monitor Payton and a plan for behavioral management would be discussed. Id.

         In addition to Staff Alert Status, Payton was charged with two Inmate Rule violations as a result of the events of September 19, 2015. ECF 16-8 at 15. A hearing was held on September 29, 2015, and Payton was found guilty of the infractions. ECF 16-8, attachments. A sanction of 365 days of segregation was imposed, as well as 60 days of cell restriction. ECF 16-8 at 23. Payton did not appeal the decision of the Hearing Officer. ELH-15-3648, ECF 13-9, Farris Decl. at ¶ 5.

         On May 24, 2015, Payton complained of foot burning and toenail fungus, indicating that those problems had just begun. ELH-15-3648, ECF 13-6 (Medical Records), at 17. He was initially given Ibuprofen. Several days later, on May 29, 2015, he received ointment and antifungal cream, as well as medications for unrelated problems. Id. at 16. He again complained of foot issues, and on June 23, 2015, he was prescribed Ibuprofen, Lubriskin Lotion, and tar shampoo. Id. at 15. Payton complained again of foot issues on December 1, 2015, but refused to be seen by a prison physician the following day. Id. at 5.

         NBCI prisoners are instructed how to report sexual assaults or sexual misconduct. ELH-15-3648, ECF 13-5, Rozas Decl. at ¶ 1. Despite such instruction, Payton did not report any sexual assault incidents under the requirements of the Prison Rape Elimination Act, 42 U.S.C. § 15601, et seq. Id . at ¶¶ 4-5.

         Segregation prisoners receive many of the privileges afforded general population prisoners, but are kept from congregating with others. While in segregation, Payton is entitled to receive two showers a week; a weekly change of bedding; monthly haircuts; out-of-cell activity for one hour, five days a week; and medical care, including mental health care and dental care. ELH-15-3424, ECF 12-4, DCD 110-6 (VI)(D)(1-3); (H); (I). Payton also has access to educational services, library services, legal reference materials, a chaplain, and the commissary. Id., DCD 110-6 (VI)(K-M, O, Q, R). The Warden may remove a prisoner from segregation at any time. Id., DCD 110-6 (VI)(U)(1)(c).

         Conditions of confinement claims are addressed through the grievance process, known as the Administrative Remedy Procedure or “ARP.” Payton addressed many of his claims in a ARP grievance filed on November 6, 2015, in which he complained that he was placed in a strip cell for the six days preceding October 2, 2015, during which time he received no recreation or shower and was refused treatment for “phycosis.” ELH-15-3648, ECF 13-2 at 6, NBCI 2296-15. The grievance was dismissed as untimely. Id. Payton did not file an appeal with the Commissioner of Correction regarding the dismissal. Id., ECF 13-10, Ripps Decl. at ¶ 2. Defendants contend that, as a result of this failure, this court cannot address the merits of the conditions of confinement claims, because Payton did not exhaust his administrative remedies.

         Adjustment hearing procedures and decisions are not subject to the grievance process. See ECF 16-3, DCD 185-003 at VI(N)(3)(b)(3). As noted, Payton was found guilty of institutional rule violations on September 29, 2015, in Case 2015-021 and Case 2015-022. ELH-15-3648, Declaration of Sgt. Jamie Farris, ECF 13-9 at 1. Defendants allege that Payton failed to exhaust his right of appeal regarding his adjustment convictions and the segregation sentence imposed on him.[5]

         As discussed in more detail, infra, in order to exhaust administratively a claim disputing a hearing officer’s disciplinary decision, a prisoner must present his concerns on appeal to the Warden and, if dissatisfied with the response, then to the Inmate Grievance Office (“IGO”). See COMAR; COMAR; COMAR Payton improperly complained of segregation confinement using the ARP process, resulting in the dismissal of his ARP complaint. Case ELH-15-3648, ECF 13-2 at 7, Entry of January 4, 2016, NBCI-0038-16. Payton should have appealed the Hearing Officer’s decisions in those disciplinary cases to the Warden, and from there, to the IGO.

         Robin Woolford, Executive Director of the IGO, has reviewed the IGO records to determine if Payton filed any grievances with the IGO since September 2015. In his Declaration of April 15, 2016 (ELH-15-3648, ECF 13-11), he indicates that plaintiff filed 12 grievances since September 2015. He notes an “appeal” on October 28, 2015, from a finding at a disciplinary hearing on an unspecified date, concluding that Payton committed rules violations. Case ELH-15-3648, ECF 13-11, Woolford Decl., at 2. It was administratively dismissed, effective February 9, 2016, when Payton refused to accept delivery of the IGO’s response. Id. at 2-3. In addition, Payton filed several grievances on February 22, 2016, one of which concerned an appeal from a guilty finding after a disciplinary hearing. Id. at 3. There is no date as to the hearing and, as of the date of the ...

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