United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
Plaintiff Michael Fisher, a Maryland Division of Correction
("DOC") prisoner currently confined at North Branch
Correctional Institution ("NBCI"),  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,  Johnson subjected him to retaliation that
adversely impacted his prison job and classification status
and resulted in his transfer to NBCI. ECF 1. Johnson, by counsel,
has filed a Motion to Dismiss or, in the Alternative, for
Summary Judgment. ECF 28. 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. Fisher has filed
an opposition to the Motion for Summary Judgment, as
supplemented. ECF 34, 35.
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
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. 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.
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decision, and the job offer was withdrawn.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.
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
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.
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.
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.
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.
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.
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