United States District Court, D. Maryland
DONALD R. PEVIA, Plaintiff
RONALD A. SAVILLE, Defendant DONALD R. PEVIA, Plaintiff
WARDEN FRANK BISHOP, SGT. ADAM A. SCHROYER, Defendants.
L. Hollander United States District Judge.
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”).
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.
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.
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.
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
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.
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.
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.
November 2015, plaintiff underwent left shoulder compression
surgery. Pevia II, ECF 14-4 at 26-27.
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.
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.
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
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
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.
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.
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.
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