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Allen v. Bishop

United States District Court, D. Maryland

September 15, 2017

WARDEN FRANK BISHOP, et al. Defendants



         Defendants Warden Frank Bishop, Lt. Michael Bulger, Officer Brett Payton, Ofticer David Lepley, Correctional Case Management Specialist Jason McMahan, and Correctional Case Management Manager Richard Roderick filed a Motion to Dismiss or in the alternative for Summary Judgment in response to the above-entitled civil rights complaint. ECF 20 and 22.[1] Plaintiff was advised of his right to file an Opposition Response to the motion and of the consequences of failing to do so by letter from the Clerk of this Court. ECF 2I and 23. He has filed nothing further in the case and the motion remains unopposed. For the reasons stated below, the motion, construed as a Motion for Summary Judgmen, [2] shall be granted.


         Plaintiff Lawrence Kenneth Allen, an inmate committed to the custody of the Maryland Department of Public Safety and Correctional Services and at all times relevant confined at North Branch Correctional Institution ("NBCI"), asserts he was "viciously, violently, savagely Defendanss filed a corrected Memorandum in Support which was docketed at ECF H Plaintiff was given a second notice to file an Opposition Response after it was filed.

         Defendants" dispositive submission will be treated as a Motion for Summary Judgment under Federal Rule of Civil Procedure 56 because materials outside the original pleadings have been considered See Bosher v U 9 Ainvays. 510 F.3d 442, 450 (4th Cir. 2007) g attacked and assaulted"' on June 14, 2016, when Lt. Wilt, [3] Sgt. Schoeder, Sgt. Bulger, Officers Crowe, Payton, Lepley and Gilpin entered his cell. ECF 1 at p. 3. He claims these officers "dragged and stomped" him. Id. Although it is not entirely clear from the content of the complaint, it appears Allen claims the assault occurred following his receipt of a Notice of Infraction issued by Case Managers Ms. Zies[4] and Ms. Leese. Id. He asserts that when the infraction was issued lies and Leese told him he should not seek assistance from the warden regarding his "current release situation." Id.

         Attached as exhibits to the complaint are documents reflecting that Allen was considered for restoration of 1436 days of revoked good conduct credits. ECF I-I at p. 7. Staff considering the restoration recommended restoration of 180 days of good conduct, noting Allenss "medical issues and recent writing campaign"' /d. Allen also attaches an administrative remedy procedure complaint ("ARP") in which he addresses Warden Bishop and claims the "allegations made at [his] restoration hearing were to quote LI. Wilt known to be false." Id. at pp. 5 - 6. He further complains that Case Management Manager Richard Roderick was refusing to hold another restoration hearing. Id. at p. 6.

         As relief, Allen seeks monetary damages and an immediate release from custody. ECF 1 at p. 3.

         Defendants assert that there is no record of a Use of Force or Serious Incident involving Allen on June 14, 2016. ECF 22 at Ex. I (Declaration of John White, Case Management Specialist II). There are no reports or daily log entries indicating anything occurred involving Allen and there arc no medical records within two weeks before, on, or after June 14, 2016, indicating that Allen requested medical care due to an assault. Id.

         Officer Benjamin Crowe asserts that Allen was housed in Housing Unit I during June, 2016. ECF22atEx.2, ~3 (Declaration of Officer Crowe). Crowe denies assaulting Allen. Id. at ~4. Officer Brett Payton also denies assaulting Allen. Id. at Ex. 3, ~4 (Declaration of Officer II Brett Payton). Officer Andrew Gilpin was not in Housing Unit I on June 14, 2016, and explains he was assigned to a different duty station. Id. at Ex. 4, ~4 (Declaration of Officer Andrew Gilpin). Gilpin also denies assaulting Allen as alleged. Id. at ~5. Officer David Lepley denies assaulting Allen and states he was not even working on June 14, 2016, as it was his regularly scheduled relief day. Id. at Ex. 5, .¶¶4 & 5 (Declaration of Officer David Lepley), see also Ex. I at p. 6 (Post Assignment Worksheet for June 14, 2016..

         Defendants further state that Allen filed 326 ARPs during his confinement at NBC!. ECF 22 at Ex. I, pp. 7 - 17 (ARP Index). One ARP submitted on June 19, 2016, alleged that Allen was being threatened and harassed by Officer Payton. Id. at ~ 7. Allen was directed to resubmit the complaint with details concerning the allegation such as the date and time of the alleged conduct and information regarding the harassmen.. Id. When Allen failed to resubmit the ARP as directed, it was dismissed. Id. Notwithstanding Allen's penchant for filing ARPs, he did not file one alleging he was assaulted on June 14, 2016.

         Richard Roderick states that he attended a hearing regarding restoration of good conduct credit for Allen, as the Wardenss designee, on October 18, 2012. ECF 22 at Ex. 6, ~ 5 (Declaration of Richard Roderick). The team considering restoration included Jason McMahon, Lt. Pennington, and Case Management Specialist Charlotte Zeis. Id. at ~7. Roderick and McMahon assert that all of the information considered for the hearing and documented on the Case Management Sheet was true and was gathered from Allen's institutional basefile and OBSCIS. ECF 22 at Ex. 6, ~ 6 and 7, ~ 6 (Declaration of Jason McMahon). Based on that information, the team recommended restoration of 180 days of good conduct credit. ECF 22 at Ex. 6, ¶ 9. Roderick, who was Acting Assistant Warden at the time, approved the recommendaiion. Id.

         Standard of Review

         Summary Judgment is governed by Fed.R.Civ.P. 56(a) which provides that:

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is ...

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