United States District Court, D. Maryland
DONALD R. PEVIA, Plaintiff
JEFFREY NINES, et al., Defendants
L. Hollander, United States District Judge.
Donald R. Pevia, a self-represented inmate currently confined
at the North Branch Correctional Institution
(“NBCI”), filed a civil rights complaint against
defendants Assistant Warden Jeffrey Nines, Lieutenant Thomas
Sires, Sergeant William Leydig, and CO II Scott Beeman,
pursuant to 42 U.S.C. § 1983. He alleges that his right
to Equal Protection was violated by defendants when he was
prevented from ordering paintbrushes and all art supplies,
while other inmates were permitted to order them. ECF 1;
see also ECF 31. Plaintiff also filed a court
directed supplement to the complaint. ECF 3.
have filed a motion to dismiss or, in the alternative, for
summary judgment. ECF 21. The motion is supported by a
memorandum (ECF 21-1) (collectively, “Motion”) and
several exhibits. Plaintiff opposes the motion. ECF 26; ECF
31; ECF 32.
hearing is necessary to resolve these matters. 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.
Thomas Sires is the supervisor regarding property and
Officers William Leydig and C.O. II Scott Beeman run the
property room and are responsible for verifying and
processing inmate orders. ECF 3 at 2.
alleges that in December of 2015, after filing an
administrative remedy, ARP No. 2237-15, regarding the denial
of art supplies, he was approved to order paintbrushes. ECF 1
at 5. However, before placing the order, plaintiff was placed
on disciplinary segregation. Id. On an unspecified
date, Beeman asked plaintiff to sign off on his Inmate
Grievance Office (“IGO”) hearing concerning ARP
No. 2237-15 because he could now get the paintbrushes. Later,
Officer Durst brought plaintiff a sign off sheet regarding
the grievance, which plaintiff signed. Id.
of 2016, after plaintiff had been released from disciplinary
segregation, plaintiff submitted an art catalog order that
was denied with a notation that “paint brushes are not
allowed.” Id. at 5. Plaintiff resubmitted the
order with a letter advising the property department that the
paintbrushes had been approved in ARP No. 2237-15.
Id. Once again. the order was denied. Id.
Plaintiff resubmitted the order a third time, this time
removing the request for paintbrushes. The order was again
denied, this time with a note that he could not order art
supplies if he was not enrolled in an art class. Id.
25, 2016, plaintiff filed a new ARP, No. 1183-16, concerning
the denial of art supplies. ECF 1 at 3. Having not received a
timely response to the ARP, plaintiff filed another ARP, No.
1213-16, again complaining about the denial of art supplies.
However, it was dismissed as repetitive to ARP 1183-16. ECF 1
at 3. Sometime that month, Sires came to plaintiff's cell
and requested he sign off on ARP 1183-16, as the prison was
making its own art supply list. Id. Plaintiff
refused to do so. Id.
alleges that throughout this time other inmates housed on Max
II were allowed to order art supplies and paintbrushes.
Id. at 6; ECF 3 at 3. He indicates that inmates Doug
Baker, Christopher Witcher, Michael Warner, and Richard
Phelps were among those inmates. Id. Plaintiff
claims that he was “intentionally and vindictively
denied ALL art supplies.” ECF 1 at 6 (emphasis
in original); see also ECF 3 at 3.
response to plaintiff's allegations, defendants explain
that on October 29, 2015, plaintiff filed ARP NBCI-2237-15,
alleging that Sgt. Harris and defendant Beeman denied him
paintbrushes even though the property list permitted inmates
in both general population and on administrative segregation
to have paintbrushes. ECF 21-2 at 18-19. The ARP was
investigated and it was determined that plaintiff's ARP
was meritorious. He was advised as follows on December 29,
An investigation revealed that according to the allowable
inmate property matrix, all general population inmates and
administrative segregation inmates are allowed to have 5 art
brushes; however, the art brushes must be stored in an area
determined by the facility which is located in the (Art Room)
gym area. Keep in mind that to have access to your
paintbrushes, you will need to send a request to gym Officer
Hartman to be placed on a pass list.
ECF 21-2 at 18.
January 3, 2016 through April 25, 2016, and from January 12,
2017 to June 20, 2017, plaintiff was housed on disciplinary
segregation. ECF 21-2 at 46. Plaintiff was not authorized to
purchase or possess paintbrushes while on disciplinary
segregation. ECF 21-6 (Leydig Decl.), ¶ 10; ECF 21-5
(Sires Decl.), ¶ 10.
“Allowable Inmate Property Matrix” limits the
type of property an inmate may possess both by the
inmate's security level as well as whether the inmate is
designated “General Population, ”
“Administrative Segregation, ” or
“Disciplinary Segregation.” ECF 21-2 at 7. In
2016, plaintiff was designated “Max II, ” the
highest security classification. Id. at 6. Max II
inmates on disciplinary segregation are not permitted to
possess “art brushes” or “art sets.”
Id. at 7. General population inmates are permitted
to have five art brushes. However, the facility is
responsible for determining where the brushes are stored. ECF
21-2 at 12.
indicated, on May 25, 2016, plaintiff filed ARP NBCI-1183-16,
alleging that he was denied art supplies and paint brushes.
ECF 21-2 at 3-4. The ARP was dismissed by Acting Warden Jeff
Nines, who found that because plaintiff was not enrolled in
an art class that stored and provided paintbrushes during
class, he was not entitled to order them. Id. Nines
also noted that plaintiff could order the art set supplied by
the commissary to keep in his cell or could obtain
paintbrushes when he enrolled in the art class. Id.
Plaintiff filed an appeal to the Commissioner (id.
at 13) who found the ARP meritorious, stating that all
general population inmates were permitted to have five art
brushes, but the brushes must be stored in an area determined
by the facility. Id. at 12. Plaintiff had also filed
a complaint regarding this issue with the IGO, which he
subsequently withdrew. Id. at 29.
30, 2016, plaintiff filed ARP NBCI-1213-16, alleging that the
property room staff retaliated against him regarding the
ordering of his art supplies. ECF 21-2 at 33-34. The ARP was
dismissed as repetitive to ARP NBCI-1183-16. Id. at
33. On July 21, 2016, plaintiff's appeal to the
Commissioner was dismissed for failure to follow the ARP
coordinator's instructions, which had directed Pevia to
resubmit the ARP, along with a copy of ARP NBCI-1183-16.
Id. at 35, 39.
Gurtler investigated plaintiff's claim that certain Max
II inmates were approved to acquire art supplies, by
reviewing the property records of inmates Doug Baker,
Christopher Witcher, Richard Phelps, and Michael Warner. His
Declaration is dated October 30, 2017. ECF 21-2 (Gurtler
Decl.), at 1.
investigation revealed that inmate Doug Baker ordered a water
color paint set on August 14, 2017. Id. ¶4.