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Fisher v. Johnson

United States District Court, D. Maryland

April 28, 2017

MICHAEL FISHER, #262-076 Plaintiff
ORLANDO JOHNSON, UNKNOWN PATUXENT INSTITUTION OFFICIALS, Individually and in their official capacities Defendants



         Self-represented Plaintiff Michael Fisher, a Maryland Division of Correction ("DOC") prisoner currently confined at North Branch Correctional Institution ("NBCI"), [1] is suing Orlando Johnson, Chief of Security at Patuxent Institution, in his official and individual capacities. Fisher seeks compensatory and punitive damages and alleges that while housed at Patuxent, [2] Johnson subjected him to retaliation that adversely impacted his prison job and classification status and resulted in his transfer to NBCI.[3] ECF 1. Johnson, by counsel, has filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. ECF 28.[4] Consonant with the dictates of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Fisher was notified Johnson's Motion could be treated as a Motion for Summary Judgment and he was entitled to file an opposition with materials in support. ECF 29.[5] Fisher has filed an opposition to the Motion for Summary Judgment, as supplemented. ECF 34, 35.[6]

         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. 2016), as a hearing is deemed unnecessary. For reasons to follow, Johnson's Motion for Summary Judgment will be GRANTED with regard to imposition of liability in an official capacity, but otherwise DENIED.


         Fisher provides the following information in support of his claims. On April 4, 2014, while housed at Patuxent Institution, he received an infraction alleging he had diluted a urine specimen. Although Fisher was found not guilty of the infraction in a formal disciplinary hearing convened on April 16, 2014, he nonetheless received disciplinary sanctions from Assistant Warden James Flood. ECF 1-1 at p. 1.[7] Fisher filed an Administrative Remedy Procedure ("ARP") complaint against Flood and Johnson to protest the imposition of sanctions after a "not guilty" finding regarding the infraction. ECF 1-1 at p. 12.

         While the ARP complaint was pending, in late June of 2014, Fisher was offered a position at Patuxent's Maryland Correctional Enterprises ("MCE") industrial shop based on approval by classification personnel and Warden Patricia Gains-Johnson. Fisher alleges that Johnson sent an email to MCE manager Charles Behnke disapproving the hiring decision, and the job offer was withdrawn. Between that time and June 25, 2015, Fisher attempted to obtain other prison jobs at MCE, and also applied for positions in the ID Room and the school. Fisher claims that each supervisor was told by Johnson to withhold positions from Fisher. He claims that School Director Nadine Snowden was told by Johnson that hiring Fisher would lead to retaliation against her department. ECF 1 at p. 2.

         Johnson was promoted to Director for Security Operations for Maryland's Department of Public Safety and Correctional Services ("DPSCS"), and was no longer stationed at Patuxent. On June 25, 2015, following Johnson's departure, Fisher was hired to work at MCE. A few months later, Johnson was demoted and returned to Patuxent as Chief of Security. Johnson's return had no immediate impact on Fisher's job.

         On May 10, 2016, Fisher mailed a Maryland Tort Claim via certified mail against Johnson alleging retaliation resulting in his inability to secure a prison job as well as interference with legal mail. The paperwork was received by the State Treasurer's Office on May 17, 2016. ECF 1-1 at pp. 8-10. Two days later, on May 19, 2016, Fisher was placed on Administrative Segregation by Johnson pending an investigation as to whether Fisher was dangerous to the security of the institution, other prisoners, or staff. Id. at p. 11. As of the filing of his Complaint on June 9, 2016, Fisher remained on administrative segregation and had been transferred to NBCI. He was not charged with institutional rule violations. Fisher states that he has maintained a clean institutional record during his 20 years of incarceration, held a "premier job, " within the DOC, and had participated in "multiple volunteer activities." ECF 1 at p. 4. Fisher contends that Johnson's retaliation is an attempt to deprive him of his First Amendment rights and undertaken to punish him for using the ARP process and filing various actions in the courts or State administrative agencies.

         A. Defendant's Response

         Johnson provides no discussion or documentation regarding the hearing officer's determination that Fisher was not guilty of diluting a urine sample. Johnson also provides no discussion or affidavit refuting Fisher's claim that he overrode the June 2014 decision made by classification personnel and/or the warden approving Fisher for the MCE job, and he makes no effort to assure this Court that such action was warranted. Similarly, no investigatory findings accompany Johnson's notice of assignment to administrative segregation (ECF 28-2 at p. 3), no explanation is provided as to why Fisher was not charged with an infraction for "trying to initiate a riot, and no rationale is provided to explain why Fisher was transferred from a maximum-security therapeutic setting to the highly restrictive NBCI.

         B. Plaintiff's Opposition

         In his opposition response, Fisher denotes the restrictions placed on NBCI prisoners who are on administrative segregation. Fisher also states that Johnson's suspicion that he wanted to start a riot in Patuxent's dining room has been converted into fact, without any adjustment adjudication. ECF 34-1 at pp. 6-7.


         When a defendant seeks dismissal or, in the alternative, summary judgment, the Court may use its discretion, under Rule 12(d), to determine whether to consider matters outside the pleadings. See Kensington Volunteer Fire Dep 't, Inc. v. Montgomery Cty±, 788 F.Supp.2d 431, 436-37 (D. Md. 2011), aff'dsub nom., Kensington Volunteer Fire Dep't., Inc. v. Montgomery Cty., 684 F.3d 462 (4th Cir. 2012). Pursuant to Rule 12(d), "[w]hen matters outside the pleading are presented to and not excluded by the court, the 12(b)(6) motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Laughlin v. Metro. Wash. Airports Autk, 149 F.3d 253, 260-61 (4th Cir. 1998) (quoting Fed.R.Civ.P. 12(d)).

         The United States Court of Appeals for the Fourth Circuit has outlined two requirements for when a motion to dismiss may be converted to a motion for summary judgment: (1) the "parties [must] be given some indication by the court that it is treating the 12(b)(6) motion as a motion for summary judgment" and (2) "the parties 'first [must] be afforded a reasonable opportunity for discovery.'" Greater Bait. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Bait.,721 F.3d 264, 281 (4th Cir. 2013) (quoting Gay v. Wall,761 F.2d 175, 177 (4th Cir. 1985)). When the motion is expressly captioned as a motion to dismiss or in the alternative a motion for summary judgment and matters outside of the pleadings are submitted, the parties are deemed to have sufficient notice that conversion may be granted. See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D. Md. 2005). "[T]he party opposing summary judgment 'cannot complain that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed for discovery.'" Harrods Ltd. v. Sixty Internet Domain ...

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