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Koenig v. Department of Public Safety and Correctional Services

United States District Court, D. Maryland

March 26, 2018

BRUCE WAYNE KOENIG, #288937 Plaintiff,


          James K. Bredar, Chief Judge

         Procedural History

         This verified civil rights complaint for damages and “preventive” relief, [1]dated August 21, 2015, was originally received in the United States District Court for the District of Columbia on November 2, 2015, and transferred to this District on May 2, 2016.[2] Bruce Koenig, who is confined at the Maryland Correctional Institution in Jessup (MCIJ), alleges that he is a 66-year old inmate who has been confined on the D-West tier, cell 128, at MCIJ since December 3, 2014, when he was transferred there to be housed on the “deaf and hard-of-hearing tier.” He claims that he is a qualified individual with a disability under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq., and the Rehabilitation Act of 1973 (“RHA”), § 504 as amended, 29 U.S.C. § 794. Koenig alleges that his status as a disabled person has been confirmed by the Justice Department and Social Security Administration.[3] ECF No. 1, p. 5.

         In his original complaint, which Koenig later asked the court to disregard (ECF No. 17-1), he raised the following issues:

• The Department of Public Safety and Correctional Services (DPSCS) has, since 1999, entered into contractual agreements with medical services companies to provide care for inmates and has “omitted responsibility” for providing medical mattresses, cotton blankets, additional pillows or orthopedic pillows, customized or “upgrade” footwear, and medical specialties for allergies, dermatology, and other areas, all as a cost-cutting measure.
• His torn left shoulder rotator cuff, inability to hear, knee, back and neck injuries, Meniere's Disease, Neuropathy, chronic depression and bipolar affect, and bronchial asthma, which affect his day-to-day mobility, communications, and ability to defend himself and to participate in work or light recreational activities, implicate ADA and RHA protections.
• Former MCIJ Warden and Regional Director Dayena Corcoran has dictated that MCIJ cells will not be converted to handicapped accessible cells, showers will not be equipped with safety rails, safety treads will not be provided in slippery and wet areas, and other needed conversions such as improvements to ventilation, will not occur.
• As a direct result of Corcoran's policies, Koenig has not been able to obtain a medical mattress, a second cotton blanket and pillow, upgraded walking or tennis shoes, two fans for his asthma, or a single-cell for self-defense purposes.

ECF No. 1, pp. 6-12.

         Koenig has filed “first” and “corrected” amended complaints against State agencies, individual correctional administrators and staff, and State contractors invoking the court's jurisdiction under the ADA, RHA, 42 U.S.C. § 1983, and “other” claims under the court's pendent jurisdiction. He maintain that he suffers from deafness, Meniere's Disease, poor vision, dyslexia, torn meniscuses in each knee, severe mechanical pain and loss of sensation in both feet, and Ankylosing Spondylosis[4] (AS) of his spine. Koenig alleges that defendants continue to discriminate against him and others by (1) denying effective means of communicating by telephone;[5] (2) providing inadequate access to auxiliary aids and services necessary to accommodate disabled individuals in connection with hygiene (showers), educational and rehabilitative programming, and employment (vocational and rehabilitative work training and educational programs); (3) not furnishing adequate notification of important events and safety announcements and interpretative services at disciplinary hearings or other proceedings; and (4) not providing Koenig with progressive lens eyewear with “several middle distance lens capacity.” ECF Nos. 16-18 & 28. He seeks declaratory and injunctive relief, as well as damages. Id.

         Koenig filed several other motions to amend or to supplement his complaint, which were granted by the court. ECF No. 29, 32 & 39. Additionally, he claims that he initially prepared his complaint as a supplement to Jarboe, v. DPSCS, , Civil Action No. ELH-12-572 (D. Md.).[6] He contends that his appeal of Judge Ellen Hollander's denial of his motion to reopen was pending before the United States Court of Appeals for the Fourth Circuit. He asks that if the Fourth Circuit denies his motion, the court consider his most recently filed amended complaint as the only complaint for consideration. On July 24, 2017, the Fourth Circuit denied Koenig's appeal. See In re Koenig, CA No. 17-1131 (4th Cir. 2017).

         Pending Motions

         Koenig has filed a motion for order of service, claiming that service of process has not been accepted on defendants Flood, Dill, Shepard, Hopkins, Lottich, Ross, Rhonda Jones, Prison Operations Systems, Inc., and Unknown Employees, Prison Operations Systems, Inc.[7] ECF No. 49. In addition, he has filed a motion to supplement pleading, which, when generously construed, seeks to add verbiage to his amended complaint and to add as a defendant Steven Shilo, the Chief Executive Officer (CEO) for Maryland Correctional Enterprises (MCE). ECF No. 54. For reasons to follow, the motions shall be denied.

         The served defendants have filed a motion to dismiss or, in the alternative, motion for summary judgment. ECF No. 36. After receiving several extensions, Koenig has filed opposition responses[8] (ECF Nos. 59 & 62) and a cross-motion for summary judgment. ECF No. 59. The case is ready for consideration and defendants' dispositive motion may be determined without oral hearing. See Local Rule 105.6. (D. Md. 2016).

         Standard for Summary Judgment

         Because matters outside the pleadings will be considered, defendants' motion shall be treated as a motion for summary judgment. Summary judgment is governed by Federal Rule of Civil Procedure 56(a), which provides, “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 entitled to judgment as a matter of law.” The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

         The “party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings, ' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting former Fed. R. Civ. P. 56(e)). The court should “view the evidence in the light most favorable to ... the nonmovant, and draw all reasonable inferences in [his] favor without weighing the evidence or assessing the witnesses' credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court must, however, also abide by the “affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).

         In Anderson, 477 U.S. at 249, the Supreme Court explained that in considering a motion for summary judgment, the “judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. Thus, “the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.” Id. at 252.

         The moving party bears the burden of showing that there is no genuine issue as to any material fact. No. genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of his or her case as to which he or she would have the burden of proof. See Celotex Corp., 477 U.S. at 322-23. Therefore, on those issues on which the nonmoving party has the burden of proof, it is his or her responsibility to confront the summary judgment motion with an affidavit or other similar evidence showing that there is a genuine issue for trial.


         According to defendants' extensive responsive pleading, Koenig is a 67-year old male whose first-degree murder sentence without parole renders him ineligible for diminution credits. They allege that from February of 2000 to January of 2008, he was primarily housed in the Jessup, Maryland, prison region. He was then housed at NBCI from February 27, 2008, to October 29, 2013, when he was transferred to the Western Correctional Institution (WCI), and remained at WCI until December 3, 2014, when he was transferred to MCIJ. ECF Nos. 36-4 & 36-5.[9]

         Defendants maintain that case management policy is governed by Division of Correction Directives, which set out the eligibility criteria for assignment to a program. Correctional Case Management Specialist (“CCMS”) Tennille Winters affirms that for an inmate to be eligible for placement in the MCE shop, the inmate must be housed at WCI for a minimum of two years. ECF No. 36-13, Winters Decl. Defendants state that under applicable correctional regulations, an inmate with at least one documented disability shall be afforded job and program opportunities that are appropriate, considering their limitations. ECF No. 36-36 & ECF No. 36-16. Winters maintains that because Koenig met that requirement he was not placed on the ...

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