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Pevia v. Nines

United States District Court, D. Maryland

August 15, 2018

DONALD R. PEVIA, Plaintiff
v.
JEFFREY NINES, et al., Defendants

          MEMORANDUM OPINION

          Ellen L. Hollander, United States District Judge.

         Plaintiff 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, [1] 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.

         Defendants 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)[2] (collectively, “Motion”) and several exhibits.[3] Plaintiff opposes the motion. ECF 26; ECF 31; ECF 32.[4]

         No 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.

         I. Background

         Lt. 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.

         Plaintiff 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.

         In May 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. at 6.

         On May 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.

         Plaintiff 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.

         In 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, 2015:

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.

         From 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.

         The “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.

         As 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.

         On May 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.

         CO II 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.

         Gurtler's investigation revealed that inmate Doug Baker ordered a water color paint set on August 14, 2017. Id. ΒΆ4. ...


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