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Pevia v. Sires

United States District Court, D. Maryland

December 15, 2017

DONALD R. PEVIA, Plaintiff
v.
THOMAS SIRES, et al., Defendants

          MEMORANDUM OPINION

          Ellen L. Hollander, United States District Judge.

         Plaintiff 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.[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.

         A 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.

         I. Background

         A. Plaintiff's factual assertions

         On January 3, 2016, while Pevia was walking to afternoon yard, he was pulled to the side by correctional officer Michael VanMeter[2] 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. Id.

         Subsequently, 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. Id.

         Plaintiff's 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.

         Plaintiff 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.[3] 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.

         Plaintiff “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.

         On 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 sanctions.[4]

         Because 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.

         Pevia 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.

         Plaintiff 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 5-7.[5]

         B. Defendants' factual assertions

         Defendants' version of the facts does not differ materially from plaintiff's version of events. Defendants have, however, amplified the facts.

         On 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.

         Sires 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.

         Also on 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 ...


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