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Pevia v. Bishop

United States District Court, D. Maryland

August 16, 2018

DONALD R. PEVIA, Plaintiff
v.
FRANK K. BISHOP, Defendant

          MEMORANDUM

          Ellen L. Hollander United States District Judge.

         The self-represented plaintiff, Donald Pevia, is an inmate currently confined at the North Branch Correctional Institution (“NBCI”). He filed suit against Warden Frank Bishop, under 42 U.S.C. § 1983, seeking declaratory and injunctive relief based on an alleged violation of his First Amendment right to practice his religion. ECF 1. In addition, he alleges breach of a settlement agreement. Exhibits are appended to the Complaint.

         Pending is a motion to dismiss, or, in the alternative, for summary judgment filed by Defendant Frank K. Bishop. ECF 13.[1] The motion is supported by a memorandum of law (ECF 13-1) (collectively, “Motion”) and exhibits. Plaintiff opposes the Motion. ECF 17; ECF 23.[2]He has also submitted exhibits. Id.

         The court finds a hearing to resolve the pending motion unnecessary. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, defendant's dispositive Motion, construed as a motion for summary judgment, shall be granted.

         I. Background

         In 2014, plaintiff Donald R. Pevia filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging violations of his First Amendment right to freely practice his religion. ECF 13-3; see also Pevia v. Shearin, Civil Action No. ELH-14-631 (D. Md.) (“Pevia I”). Subsequently, counsel was appointed for plaintiff in Pevia I (ECF 13-4). On August 2, 2016, plaintiff signed a settlement agreement concluding Pevia I, without admission of liability on the part of defendant or the Department of Public Safety and Correctional Services (“DPSCS”). ECF 13-5. In exchange for dismissal of Pevia's claim in Pevia I, DPSCS agreed to pay Pevia monetary damages. ECF 13-5 at 2, ¶ 1(a). Further, the settlement agreement provided, id. ¶ 1(b):

Each time members of the Iron House Council (or such other organization providing Native American religious services) visit North Branch Correctional Institution for religious practices, which usually occurs every two weeks, a member of Iron House Council (or such other organization providing Native American religious services) will meet with Mr. Pevia outdoors for the purpose of engaging in a Native American religious visit with a lit pipe.

         From December 5, 2014 to October 19, 2016, plaintiff was classified as a Maximum Security Level II-Structured Housing inmate (MAX II-SH). ECF 13-7 (Decl. of NBCI Chaplain Kevin Lamp), ¶ 8. Facility Directive DOC 100.0004.04 defines a MAX-II SH inmate as an individual:

(i) Sentenced to the custody of the Commissioner of Correction (Commissioner);
(ii) Who demonstrates or is known to demonstrate dangerous, violent, or other characteristics that pose a serious threat to life, property, self, staff, other inmates, or facility security;
(iii) Is determined to require enhanced supervision in order to remediate dangerous, violent, or other characteristics that pose a serious threat to life, property, self, staff, other inmates, or facility security; and (iv) If housed in general population poses a serious threat to life, property, self, staff, other inmates, or facility security.

ECF 13-8 (Facility Directive DC 100.0004(4)(a) at 2.

         Plaintiff alleges that on August 9, 2016, Native American religious services were held at NBCI and, while the rest of the Native American inmates were permitted to attend, he was not. ECF 1 at 3. Pevia asserts, id.: “Every week on Tuesday when service is held plaintiff was the only member denied access.” He explains that the settlement agreement in Pevia I (ECF 13-5) provided that he is to attend services every other week with the Iron House Council, and any other Native American religious organization, as those groups had access to ceremonial religious items that NBCI did not provide. ECF 1 at 3-4. Pevia claims that on the weeks that Iron House was not available to conduct services at NBCI, other Native American inmates were permitted to sit in the multi-purpose room from 11:45 a.m. to 1:15 p.m. to converse. Id. at 4.[3]

         In August of 2016, Iron House Council did not attend any Native American religious services at the facility, due to other commitments of the Council. ECF 13-7, ¶ 6. During this time, the general population of Native American inmates conducted their own services each Tuesday, which were run by an “inmate facilitator.” Id. ¶ 7. But, MAX II-SH inmates are not permitted to attend religious services with general population inmates, and inmate facilitators are not allowed to meet with MAX II-SH inmates, due to security concerns. Id. ¶ 8.

         According to plaintiff, on an unspecified date, he learned from fellow inmate Norman Mayes that Iron House had not been to NBCI in weeks but that the policy at NBCI had changed so that inmates were permitted access to “the tobacco, pipe, etc. etc on their own.” ECF 1 at 4. Plaintiff complains that he was ...


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