United States District Court, D. Maryland
DONALD R. PEVIA, Plaintiff
THOMAS SIRES, et al., Defendants
L. Hollander, United States District Judge.
Donald R. Pevia, who is self represented, is an inmate at the
North Branch Correctional Institution (“NBCI”) in
Cumberland, Maryland. He filed suit on November 8, 2016,
pursuant to 42 U.S.C. § 1983, naming as defendants
correctional officers Thomas Sires, Allan Graham, Jamie
Farris, and Hearing Officer David Sipes. ECF 1. Plaintiff
included exhibits with his suit, filed collectively as part
of ECF 1. The defendants have moved to dismiss or,
in the alternative, for summary judgment. ECF 16. Their
motion is supported by a Memorandum (ECF 16-1) (collectively,
the “Motion”) and many exhibits. Plaintiff
opposes the motion (ECF 20, “Opposition”), and
has also submitted exhibits. ECF 20-1. No reply was filed.
hearing is not necessary to resolve the Motion. See
Local Rule 105.6 (D. Md. 2016). For the reasons that follow,
defendants' Motion, construed as a motion for summary
judgment, shall be granted.
Plaintiff's factual assertions
January 3, 2016, while Pevia was walking to afternoon yard,
he was pulled to the side by correctional officer Michael
VanMeter for a “random” pat down.
VanMeter found a “home made lollipop” in
plaintiff's pocket. ECF 1 at 3. VanMeter permitted
plaintiff to enter the yard. Id. Plaintiff then
observed VanMeter consult with other officers and walk off. A
few minutes later, a squad of about eight officers approached
plaintiff's recreation cage and “ordered plaintiff
to put handcuffs on.” Id. Pevia was then
escorted back to his cell, where he was strip searched and
his cell was searched. No candy was found on plaintiff.
However, a bag of lollipops was found on his bunk.
Id. Plaintiff was escorted to Housing Unit 1 and
placed on disciplinary segregation pending adjustment.
plaintiff was served with a disciplinary ticket and charged
with several rule infractions regarding the possession of
controlled dangerous substances or other contraband.
Id. at 3-4. In particular, he was charged with
violations of Rule 111, Rule 112, Rule 114, and Rule 406, all
pertaining to controlled substances or contraband.
disciplinary hearing was held on January 7, 2016, with
Sergeant Farris and Hearing Officer Sipes in attendance.
Id. at 4. Before the hearing began, Farris provided
plaintiff with pictures of the field test that was conducted
on the candy by Graham (id.), which indicated the
candy contained Buprenorphine. Plaintiff maintains the test
was “falsified.” Id. Plaintiff asked
where the candy was and Farris explained that the Maryland
State Police (“MSP”) took possession of the candy
to test it in their laboratory. Plaintiff maintained that
there were no drugs in the candy and inquired why the hearing
was being conducted during the pendency of the investigation,
and before the conclusion of the MSP test. Id. He
was confident that the MSP test would exonerate him.
Id. at 4, 6.
states that Sipes advised him that because five years had not
elapsed since plaintiff had assaulted a staff member, he
would have to “override the Matrix system” and
put plaintiff in a “poor Category, ” and
therefore he could receive 365 days of segregation if he were
found in violation of the rules. ECF 1 at 5. However,
plaintiff told Sipes that an inmate cannot receive more than
90 days of segregation. Id. Farris offered plaintiff 60
days on segregation and one-year suspension of visitation,
rather than an indefinite suspension, if plaintiff pleaded
guilty. Id. But, Farris claimed that a violation
based on a drug charge requires loss of visitation.
Id. at 5.
“thought about” the merits of the offer and
“all the legal issues he had going on . . . .”
Id. He was also concerned about his cellmate, who
faced similar charges because he (i.e., the
cellmate) failed to report plaintiff's conduct. So,
plaintiff negotiated to have his cellmate removed from
disciplinary segregation. Id. at 5-6. Accordingly,
Pevia decided to plead guilty, in exchange for 60 days of
segregation, one year loss of visitation, and the loss of 60
good conduct credits. Id. at 6.
January 7, 2016, plaintiff filed an appeal from the hearing
officer's decision. ECF 16-3 at 33. He filed a grievance
with the Inmate Grievance Office on January 20, 2016. ECF 1
at 9. On May 5, 2016, plaintiff received notice from
Patricia-Goins Johnson, Executive Field Support Service
Director for the Maryland Department of Public Safety and
Correctional Services (“DPSCS”), advising him as
to the test results conducted by the MSP on March 10, 2016.
Id. at 9. Charles Miller, a Forensic Scientist with
the MSP, tested the confiscated candy and determined that no
drugs were present in the candy. Id. at 9, 18. On
April 27, 2016, Goins-Johnson ordered Warden Frank Bishop to
reverse plaintiff's convictions and to vacate the
plaintiff had not received a response to his grievance, he
filed another inmate grievance. Id. at 9-10. Further
grievance proceedings and appeals were not successful.
Id. at 10-11.
maintains that the use of the field test to test his candy
for drugs violated his due process rights, because it is not
a method of testing, and leads to false positives.
Id. at 12. He asks the court to enjoin defendants
from using the field test for drugs in food items, to prevent
future false positives results, without giving inmates
“a proper chance to argue and present a defense.”
Id. at 12. Plaintiff also seeks compensatory and
punitive damages. Id.
notes that the disciplinary procedure has since been changed,
and inmates are now placed in administrative segregation
pending the results of MSP testing. ECF 20 at 12. He also
provides affidavits from two other inmates who have been
caught selling candy; the candy field tested positive for
Buprenorphine; and they were charged and convicted of inmate
rule violations that were ultimately vacated when the candy
tested negative for CDS when tested by the MSP. ECF 20-1 at
Defendants' factual assertions
version of the facts does not differ materially from
plaintiff's version of events. Defendants have, however,
amplified the facts.
January 3, 2016, plaintiff was searched by Correcitonal
Officer VanMeter, who found plaintiff in possession of a
small bag of an unknown substance. ECF 16-3 at 17
(VanMeter's Report; Notice of Inmate Rule Violation).
Correctional Officer Sergeant Allan Graham, having completed
the MMC Narcotic Test course, was certified to use the
Buprenorphine HCL Test Kit to test suspicious substances. ECF
16-4 (Decl. of Graham), ¶ 4. Graham tested the substance
seized from plaintiff and from his cell, using the
Buprenorphine HCL Test Kit. ECF 16-4, ¶ 5; ECF 16-3 at
5-16, 20-22, 24-27. The weight of the substance was 25.7
grams. ECF 16-3 at 21. The results of the field testing
indicated a positive reading for Buprenorphine. Id.
The substance was then released to Sires and Graham, who
completed the Chain of Custody Log. ECF 16-4, ¶ 8; ECF
16-3 at 6, 22. Graham avers that he did not falsify the
reports or results of the Buprenorphine test administered on
January 3, 2016. ECF 16-4, ¶ 8.
avers that he does not recall being present when graham
tested the substance was tested with the Buprenorphine HCL
test kit on January 3, 2016. ECF 16-5 (Sires's Decl.),
¶ 4. But, he took possession of the substance from
Graham following the completion of the test on that date.
Id. ¶ 5. He placed the substance in a sealed
evidence bag and placed the bag in the evidence room for
safekeeping. Id. ¶ 6; ECF16-3 at 6, 22. Sires
avers that he did not falsify any reports or the results of
the Buprenorphine tests. ECF 16-5, ¶ 7.
January 3, 2016, plaintiff was served with a Notice Of Inmate
Rule Violation regarding VanMeter's discovery of the
contraband on plaintiff. ECF 16-3 at 17-18. He was charged
with violation of Rule 111 (possession or use of an
unauthorized medication, drug, or substance identified as an
intoxicant, excluding alcohol and a controlled dangerous
substance); Rule 112 (possession or use of a drug or
controlled dangerous substance); and Rule 114 (possession of
a controlled dangerous substance, intoxicant, or alcohol in
sufficient quantity or packaging material that suggests an
intent to distribute or distribution). ECF 16-3 at 17. The
following day he was served with a Notice Of Inmate Rule
Violation, charging the same violations in regard to the
contraband found in his cell, but adding a charge for
violation of Rule 406 (possess or pass ...