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Pevia v. Saville

United States District Court, D. Maryland

June 22, 2018

DONALD R. PEVIA, Plaintiff


          Ellen L. Hollander United States District Judge.

         Plaintiff Donald R. Pevia, a self-represented inmate currently confined at the North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland, filed these civil rights complaints pursuant to 42 U.S.C. § 1983. He alleges that while incarcerated at NBCI, he was injured due to deliberate indifference to his serious medical needs, because correctional staff disregarded a medical order and a settlement agreement reached between plaintiff and the State providing that he be handcuffed in front. See Pevia v. Saville, Civil Action ELH-17-2319 (“Pevia I”); Pevia v. Bishop, et al., Civil Action ELH-17-2322 (“Pevia II”).[1]

         Defendant Saville has moved to dismiss or for summary judgment in Pevia I. ECF 17. The motion is supported by a memorandum (ECF 17-1) (collectively, “Pevia I Motion”) and exhibits.

         Defendants Warden Frank Bishop and Sgt. Adam Schroyer have moved to dismiss or for summary judgment in Pevia II. ECF 14. Their motion is supported by a memorandum (ECF 14-1) (collectively, Pevia II Motion”) and exhibits.

         Plaintiff opposes both motions. See Pevia I, ECF 21; Pevia II, ECF 16. Defendants have replied and submitted additional exhibits. Pevia I, ECF 24; Pevia II, ECF 21. Plaintiff also filed identical motions to amend/supplement in each case. See Pevia I, ECF 28; Pevia II, ECF 25. The motions to amend shall be granted.

         No hearing is necessary to resolve the Pevia I Motion or the Pevia II Motion. See Local Rule 105.6. The cases shall be consolidated for dispositive review and, for the reasons that follow, I shall grant defendants' dispositive motions, without prejudice, solely on the basis of plaintiff's failure to exhaust administrative remedies.

         I. Background


         In October 2013, Pevia instituted a civil rights complaint against a host of defendants concerning correctional staff's disregard for medical orders directing plaintiff to be handcuffed in the front. See Pevia v. Shearin, et al., ELH-13-3083. In that case, I appointed pro bono counsel to represent Pevia. See ECF 39. A settlement conference was conducted by Magistrate Judge J. Mark Coulson on September 2, 2015. See Docket. Thereafter, the Court was advised that the case had been settled. Accordingly, I issued an Order of dismissal under Local Rule 111. See ECF 51.

         On October 30, 2015, the settlement agreement was finalized between plaintiff and the defendants in the 2013 case: former Commissioner Michael Stouffer, former Warden Bobby P. Shearin, Keith Arnold, Dale Smith, Lt. Paul Pennington, Christopher Wedlock, Nicholas Soltas, James Vinci, Christopher Wedlock, Brian Goldizen, Jenifer Robertson, Warden Frank Bishop, Richard E. Miller, and the Maryland Department of Public Safety & Correctional Services (“DPSCS”). Pevia II, ECF 16-1 at 5. The agreement specified that plaintiff was to be handcuffed in front. Pevia I, ECF 1 at 3; ECF 17-4 at 3; Pevia II, ECF 16-1 at 6; ECF 14-4 at 14. However, under the terms of the settlement, front cuffing could be temporarily denied in the event of an emergency, or if plaintiff abused the cuffing order. Pevia I, ECF 17-4 at 3; Pevia II, ECF 16-1 at 7; ECF 14-4 at 14.

         In addition, the agreement also provided that plaintiff's front cuffing order could be reevaluated after September 1, 2016. If the attending physician determined that the front cuffing order was no longer necessary, plaintiff could elect to obtain a second opinion from the orthopedic specialist contracted to the on-site medical service. If the orthopedic specialist disagreed with the attending physician, the orthopedic specialist's opinion would control, so long as the DPSCS Medical Director approved. Pevia II, ECF 16-1 at 6-7; ECF 14-4 at 14-15.

         In November 2015, plaintiff underwent left shoulder compression surgery. Pevia II, ECF 14-4 at 26-27.

         B. Pevia I

         In Pevia I, plaintiff alleges that on August 29, 2016, Saville came to his cell to escort him to a sick call appointment. ECF 1 at 3. Plaintiff states that he placed his hands out of the cell door slot to be handcuffed in front, and advised Saville that he was to be handcuffed in front, but Saville stated that if plaintiff wanted to go to sick call he would have to be handcuffed behind his back. Id. Plaintiff complied with Saville's directive and claims that, as a result, he felt a ripping sensation in his shoulder. Id. at 3-4.

         Plaintiff alleges that shortly after the incident he was seen by Nurse Practitioner Krista Swann, who observed swelling at plaintiff's shoulder and expressed concern that the ligaments were torn again. Id. at 4. He was referred to physical therapy. Plaintiff claims that ultimately he was diagnosed with a strained bicep. Id. at 4.

         Plaintiff filed ARP NBCI-1967-16 on August 29, 2016, alleging that Saville violated the front cuffing order on that date by refusing plaintiff's request to be cuffed in front. Pevia I, ECF 1-1 at 1-2; ECF 17-4 at 3-4. His ARP was denied on September 29, 2016, based on a finding that plaintiff failed to advise Saville that he had a medical order for front cuffing. Id.

         Plaintiff filed an appeal to the Commissioner of Correction on October 1, 2016. Id. ECF 1-1 at 3-5; ECF 17-4 at 8. The appeal was dismissed on November 3, 2016. ECF 17-4 at 9. Thereafter, on November 28, 2016, plaintiff filed a grievance with the Inmate Grievance Office (“IGO”). ECF 1-1 at 6; ECF 17-4 at 21. An administrative hearing regarding plaintiff's grievance was held on June 7, 2017. ECF 17-4 at 22.

         On August 14, 2017, while the grievance was pending, plaintiff filed Pevia I. ECF 1. Thereafter, the hearing officer denied relief to plaintiff in a written opinion issued on August 29, 2017. ECF 17-4 at 32.

         C. Pevia II

         In Pevia II, plaintiff alleges that on October 11, 2016, Schroyer was assigned to escort plaintiff to his housing unit from physical therapy. ECF 1 at 3. Schroyer directed plaintiff to turn around to be handcuffed. Id. Plaintiff advised Schroyer that he was to be handcuffed in front, but Schroyer advised him that there was “no such thing as front cuff at NBCI.” Id. Plaintiff states that when they returned to his cell, there was a sign over plaintiff's cell door, which was placed there after the incident with Saville on August 29, 2016, indicating plaintiff was to be front handcuffed only. Id. at 4.

         Plaintiff claims that, as a result of being handcuffed behind his back, he felt a sharp pain from his collar bone down to his forearm. Id. He asked Schroyer to notify the medical department that he needed assistance, but Schroyer failed to do so. Id. Plaintiff submitted a sick call slip and was provided a sling and ice for swelling, as well as follow up care. Id. at 5.

         On October 11, 2016, plaintiff submitted ARP NBCI-2268-16, complaining that Schroyer insisted on cuffing him from behind during an escort from physical therapy, even though Pevia infomed Schroyer he was to be front cuffed only. ECF 14-4 at 3. The ARP was denied on November 16, 2016, after an investigation determined that plaintiff's front cuffing order expired on August 18, 2016, and he was subjected to a medical ...

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