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Gabriel v. Devore

United States District Court, D. Maryland

January 26, 2017

MANAGER DeVORE, et al. Defendants


          James K. Bredar United States District Judge.

         In response to the above-entitled civil rights complaint, defendants filed a motion to dismiss or for summary judgment. ECF 49. Plaintiff opposes the motion. ECF 52 and 55. The court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, defendants' motion, construed as a motion for summary judgment, [1] shall be granted. Plaintiff's motions for summary judgment (ECF 19) and for appointment of counsel[2](ECF 53) shall be denied.


         Plaintiff Steven Gabriel, who was, at all times relevant to the complaint, incarcerated at Roxbury Correctional Institution (RCI) and Western Correctional Institution (WCI), [3] claims that his personal safety was endangered by the named defendants when they did not take action to protect him from the violence of other inmates after he told them he was being threatened. While incarcerated at RCI, plaintiff states he was stabbed by another inmate and, as a result, he was transferred to WCI. Upon his arrival at WCI on December 7, 2015, plaintiff claims he told Case Manager DeVore he had enemies at WCI and asked for a transfer to another prison. Plaintiff alleges that DeVore ignored the claim. ECF 1 at p. 4.

         Plaintiff claims that over the course of his incarceration he was assaulted “at least 13 times” at the direction of the Black Guerilla Family (“BGF”). ECF 10 at p. 3. He notes, in particular, assaults occurring in August of 2011 and on July 26, 2015. Id. Plaintiff asserts that due to an incident at RCI, where drones were used to smuggle contraband into the prison, many RCI inmates were transferred to WCI where he was transferred. ECF 26-1. Thus, his transfer to WCI did not effectively remove him from the threat that existed to his safety at RCI, where he was stabbed. Id. Plaintiff does not identify anyone in particular who threatened him.

         On December 14, 2015, plaintiff claims that while he was walking to the cafeteria at WCI, he was assaulted but fled his assailant. He states he ran into Lt. Millin[4] and told him about the assault. Millin then put plaintiff on administrative segregation where he remained until January 6, 2016, when he claims he was “released” without a hearing. ECF 1 at p. 4.

         Plaintiff asserts that on January 12, 2016, he informed correctional officers R. Barnes and R. Hughes and Sgt. Broadwater that he feared returning to general population. In response, plaintiff states he was given a notice of infraction (“ticket”) for violation of Rule 401 (prohibiting inmates from refusing housing assignments). ECF 1 at p. 4. Plaintiff adds that Barnes, Hughes, and Broadwater subjected him to verbal abuse, including racial slurs, and assigned him to a cell in the same housing unit he was in prior to being placed on administrative segregation. ECF 10 at p. 5. As a result of this action, plaintiff claims he suffered emotional distress because he felt helpless and suicidal. Id.

         Plaintiff also attempted to document his concerns regarding his safety by filing administrative remedy procedure complaints (“ARP”). He expressed concern that his assignment to general population would not be safe for him because he was being targeted by the BGF, but his ARPs were dismissed because “case management decisions” regarding housing are not a subject that may be raised in an ARP. ECF 1-1 at pp. 1 - 5.

         While the instant case was pending, plaintiff claimed that he was denied writing and legal materials and hygiene items, despite his indigency which entitled him to these items free of charge. ECF 23 at p. 2. In response to plaintiff's request to the prison library for legal materials, it was noted that his privileges were suspended because he had an overdue book. ECF 23-1 at pp. 1 - 2. Plaintiff claimed, however, he had returned the books over two weeks before the suspension of his privileges and opines that since inmate workers handle the type of books returned (“recreational novels”), a mistake was made. ECF 23 at p. 2. Plaintiff further asserts that overdue books were not a legitimate reason to deny his requests for legal materials. Id., see also ECF 28.

         With regard to defendants Sgt. T. Menges and Officer A. Cartwright, plaintiff claims that his ARP complaints regarding officers' misconduct and others submitted as emergency requests were mishandled, inappropriately dismissed, or simply never processed. ECF 23 at p. 3. Menges and Cartwright are the ARP coordinators for WCI. Id. He states that referral of his ARPs that concerned officer misconduct should have been referred to the Internal Investigations Unit (IIU) for handling, but were not. Plaintiff claims that ARPs are not addressed by prison staff because they believe it is the courts' job to handle the claims and states that, had the ARPs been taken more seriously, he might not have suffered so many injuries. Id.

         In an ARP dated February 29, 2016, plaintiff complained that he was housed in a cell with no electricity, was denied commissary and phone privileges, and had only limited access to his personal property. ECF 23-1 at p. 3. Plaintiff further stated in the ARP that he was being denied the privileges afforded to administrative segregation inmates despite the fact that his disciplinary segregation term had ended on February 25, 2016. Id. The procedural dismissal of the ARP includes a handwritten notation from Menges stating, “[i]nformation from courts advising case management to keep you in your current housing location.” Id. Plaintiff appealed this dismissal to the Commissioner of Correction, noting that he had a copy of the court order and it required his placement on administrative segregation, not the denial of privileges. Id. at p. 4. The Commissioner's office remanded the matter back to the institution, noting that he did not concur with the rationale for the procedural dismissal. Id. at p. 5 (memorandum dated March 9, 2016). Plaintiff states the Commissioner ordered his removal from disciplinary segregation as a result of the remand. ECF 26 at p. 1.

         Plaintiff claims that Officer M. Davis retaliated against him for the appeal of the ARP to the Commissioner that resulted in his removal from disciplinary segregation and for filing the instant case. ECF 26 at p. 1. Plaintiff claims that Davis lied in order to keep him confined to disciplinary segregation and issued a notice of infraction to plaintiff on March 11, 2016. Id. The infraction charges plaintiff with use of threatening language (Rule 104), interference with the performance of staff duties (Rule 312), use of disrespectful or vulgar language (Rule 405), and destruction of State property (Rule 408). ECF 23-1 at p. 6. Davis's narrative of the incident relates that he was returning plaintiff's property to him and when he handed plaintiff the inventory sheet, told him “if all of your belongings are there, sign the sheet.” Id. According to Davis, plaintiff signed the inventory sheet and then claimed he was missing a pair of shoes. Id. When Davis checked the paperwork, he saw that plaintiff was not missing shoes and informed him that the paperwork did not indicate that anything was missing. Id. Davis states that,

Inmate Gabriel then became very agitated and ripped up the inventory sheet which destroyed state property. I immediately gave him a direct order to stop ripping up the sheet but he did not stop. Inmate Gabriel then stated, “I'm tired of fucking with these bitches up here. I'm gonna have to stab one of those mother fucking officers in Housing Unit 5 for stealing my shoes and fucking with my property.” I immediately removed myself from the tier due to his agitated state.


         Plaintiff was placed on “staff alert” status as a result of his encounter with Davis which involved assignment to a cell without bedding. ECF 26 at p. 2. Plaintiff claims this assignment was unnecessary as he did not threaten Davis, nor was any force involved as plaintiff remained handcuffed during the incident. Id. at pp. 1 - 2. He claims that the isolation cell was unsanitary because it had “dried feces smeared across the walls and into the steel mesh that covers the glass and window fixtures” and contained mice and bugs. Id. at p. 2. Plaintiff alleges he was confined to the cell for three full days without a mattress or a bunk; was only permitted boxer shorts and a t-shirt for clothing; and was denied legal mail, writing materials, soap, toilet paper, showers, and hygiene items. Id. During the time plaintiff was confined to the isolation cell, he claims he did not receive his asthma medication and states the temperature in the cell was “freezing.” Id.

         Plaintiff further explains that he was provided only a “paper diet, ” meaning he was not permitted either plastic utensils for eating or liquid beverages, and his food items were wrapped in wax paper. Id. Plaintiff characterizes the conditions under which he was confined as punishment that was imposed without due process of law. Id. In a later-filed supplemental pleading, plaintiff states that during his confinement to the isolation cell his “medications had to be increased twice.” ECF 33-2 at p. 2. Plaintiff also states, however, that Lt. Smith denied him the use of a prescribed inhaler for asthma while confined to the cell. Id.

         In addition to the alleged retaliatory conduct, plaintiff claims that Davis also “mussed” his head “into a wall while handcuffed.” ECF 26 at p. 3. He further alleges that Davis conducted a strip search on plaintiff in the presence of a female nurse and repeatedly made him “bend at the waist and spread my cheeks.” Id. Plaintiff states that he did not receive the notice of infraction written by Davis until he was removed from staff alert status and that the experience caused him to experience nightmares and paranoia. Id.

         Plaintiff's claim against Chief of Psychology Ronald S. Weber is based on his allegation that Weber refused to provide needed services to plaintiff because of this pending litigation. ECF 26 at p. 4. Plaintiff alleges he informed Weber of “serious depression issues, ” including suicidal ideation, and that he asked for a referral for therapy sessions and evaluation for anti-depressant medication. Id. He further states that he has “been diagnosed with anxiety, bi-polar and depression in the past.” Id. In the supplemental complaint dated April 10, 2016, plaintiff states that he “recently tried to hurt [him]self” and that he had “just returned from ‘suicide watch.'” Id. He alleges his mental status was adversely affected by his confinement to a cell in disciplinary segregation for over 120 days where he was confined alone. Id. Notwithstanding the symptoms alleged, plaintiff claims Weber refused to provide him with the services requested. Id. Plaintiff adds, in a supplemental pleading, that Weber was informed that plaintiff “could become a threat to [him]self, ” but he remained confined in segregation. ECF 35 at p. 1. Plaintiff admits he met with Weber “a few times, ” but claims most of his requests were ignored or took 10 to 14 days to respond. Id. Plaintiff asserts that the few times he met with Weber in his office do not qualify as treatment because plaintiff was simply asked to explain his request and told by Weber to work on his behavior before plaintiff was dismissed from his office. Id.

         Plaintiff further claims that while he was confined to disciplinary segregation the use of chemical agents was a common occurrence on the tier and it caused him to suffer asthma attacks. ECF 35 at p. 2. Specifically, he states that on April 10, 2016, during the 8 a.m. to 4 p.m. shift at lunch time, chemical agent was deployed in another cell, causing him to choke and gag for approximately three hours. Id. Plaintiff states he received no assistance during the asthma attack, despite “scream[ing] out of [his] cell door” to an unknown correctional officer, requesting assistance or a respirator mask. Id. He further states that he “used dangerous amounts of [his] inhaler” before stabilizing. Id.

         On April 14, 2016, plaintiff states that another incident involving use of chemical agents on the tier occurred during the time when showers were being provided. ECF 35 at pp. 2 - 3. Plaintiff states he exited his cell for his shower wearing a shirt tied around his face, covering his nose and mouth to protect against exposure to the agent, but an unknown correctional officer “snatched the thermal top from [his] face.” Id. at p. 3. Plaintiff states the presence of chemical agent was strong enough to affect people in other parts of the building and that officers and inmate workers in different wings were choking and coughing. Id.

         On April 22, 2016, chemical agents were again deployed four doors down from plaintiff's cell and plaintiff states he was denied medical care and access to a paper respirator mask worn by officers. ECF 35 at p. 3. He states that officers are aware of his asthmatic condition because it is documented and during the incident he was gagging and choking on his own saliva. Id. When he asked Officers Cooter and Davis for assistance, Davis responded that plaintiff should “write it up, tell the damn courts to help you.” Id. During this incident, plaintiff states he did not have any medications or inhalers to assist him. Id.

         Plaintiff claims that additional retaliatory measures were taken against him on May 9, 2016, when defendants removed him from housing unit 4. ECF 38 at p. 1. Plaintiff maintains that this court ordered defendants to keep him on housing unit 4, but he was forced from administrative segregation and placed into general population on housing unit 3. He states that housing unit 3 is known as “gang land” among inmates because the most troubled inmates at WCI are housed there and it is designated as the housing unit for inmates who have returned to general population following removal from disciplinary segregation. While plaintiff was housed there, he states he was assaulted and robbed by his cellmate, causing a “noticeable gash under [plaintiff's] left eye.” Id. Plaintiff's requests for medical assistance and to have his property inventoried, to establish that some was stolen, were denied by the housing unit tier officers. Id. at p. 2. Plaintiff claims that “during the altercation” his pants were torn, video game system was knocked over, television screen was broken, and “several property items” were stolen at knife point. Id. Following this incident, plaintiff was moved back to housing unit 5 where he claimed to suffer continuous mistreatment in retaliation for the instant case. Id.

         Injunctive Relief

         On February 19, 2016, this court partially granted plaintiff's request for injunctive relief, directed counsel to show cause why permanent injunctive relief should not be granted, and directed counsel to insure that plaintiff's assignment to administrative segregation remained unchanged until otherwise ordered by this court. ECF 4. In their response to show cause, defendants acknowledge that plaintiff was assaulted by an unknown assailant at RCI on July 26, 2015, and state that plaintiff refused to provide a statement regarding the identity of his assailant. ECF 9 at Ex. 1, pp. 5 - 6. On July 29, 2015, an administrative segregation review was conducted and a decision was reached to maintain plaintiff in that housing assignment until he could be transferred to another medium security prison. Id. at p. 3.

         On November 30, 2015, plaintiff was transferred to WCI and met with his case manager on December 2, 2015. At this initial meeting, defendants allege plaintiff refused to sign any paperwork because he “shouldn't be here.” ECF 9 at Ex. 1, p. 8. Plaintiff remained in general population until December 14, 2015, when he was placed on administrative segregation following his claim his life was in danger. Id. at pp. 9 - 10. Because an investigation into plaintiff's allegations could not substantiate his claim that he was being targeted by a prison gang, it was recommended that he be returned to general population. Plaintiff either could not or would not identify any particular person who presented a threat to him, nor could he provide a plausible reason that would explain why the BGF had a “hit” out on him.

         Plaintiff has since been released from prison. See ECF 60 (notice of change of address). His request for injunctive relief is therefore moot. A case becomes moot when the issues presented are “no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (quoting Los Angeles County v. Davis, 440 U.S. 625, 631 (1979)). Where injunctive or declaratory relief is requested in an inmate's complaint, it is possible for events occurring subsequent to the filing of the complaint to render the matter moot. See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (transfer of prisoner moots his Eighth Amendment claims for injunctive and declaratory relief); see also Slade v. Hampton Rds. Reg'l Jail, 407 F.3d 243, 248-49 (4th Cir. ...

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