United States District Court, D. Maryland
L. Hollander United States District Judge
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. 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. 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.
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.
The Factual Allegations
provides little factual detail in his complaints.
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. 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”).
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.
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.
have submitted legal memoranda and numerous exhibits, from
which the following is gleaned.
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
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.
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
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,
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.
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.
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.
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.
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.
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).
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.
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
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 12.02.27.33; COMAR
12.07.01.05; COMAR 12.07.01.06C. 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
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