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Pevia v. Commissioner of Corrections

United States District Court, D. Maryland

August 23, 2018

DONALD R. PEVIA, Plaintiff
v.
COMMISSIONER OF CORRECTIONS, et al Defendants

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge.

         The self-represented plaintiff, Donald R. Pevia, is an inmate currently confined at the North Branch Correctional Institution (“NBCI”). He filed a civil rights Complaint, with exhibits, pursuant to 42 U.S.C. § 1983. ECF 1. Pevia alleges that his rights under the Eighth and Fourteenth Amendments were violated when additional sanctions were imposed by the Reduction in Violence (“RIV”) Committee after he pleaded guilty to inmate rule violations. Id. at 3. Pevia, a frequent litigator in this Court, named as defendants the “Commissioner of Corrections” (ECF 8); the Executive Director of the Department of Public Safety and Correctional Services (“DPSCS”); and Jeffrey Nines, Assistant Warden. ECF 1 at 3.

         Defendants have moved to dismiss or, in the alternative, for summary judgment. ECF 8.[1]The motion is supported by a memorandum (ECF 8-1) (collectively, the “Motion”) and exhibits. Plaintiff opposes the Motion. ECF 12; ECF 18.[2]

         No hearing is necessary to resolve the Motion. 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

         A. Plaintiff's factual assertions

         Plaintiff alleges that on January 12, 2017, he entered a plea of guilty to a rule infraction charging possession of a weapon, in exchange for 60 days of segregation. ECF 1 at 3. A few days later, Pevia was charged with another rule violation for possession of a weapon. Id. On January 26, 2017, he pleaded guilty to the additional charge and received 125 days of segregation, concurrent with the original 60 days previously imposed. Id.

         In February 2017, plaintiff was served with notice that the RIV Committee added to the original 60-day term of segregation an additional sanction of 30 days of cell restriction. Id. According to plaintiff, the cell restriction began on February 23, 2017. Id.

         Plaintiff received another notice from the RIV Committee on March 7, 2017, advising that an additional hearing was held on February 7, 2017, regarding the second weapons charge. Id. The RIV Committee imposed 60 days of cell restriction, “on top of the original thirty (30) day cell restriction . . . .” Id. Thus, plaintiff asserts that he received a total of 90 days of cell restriction. Id.[3]

         Plaintiff indicates that, as a result of the cell restriction imposed by the RIV Committee, he had only one hour of recreation per week during the period in issue. ECF 1 at 3-4. He argues that his right to Due Process was violated by the sanctions imposed by the RIV Committee after he was already sanctioned through the disciplinary proceedings process. ECF 1 at 6. He also argues that his right to be free from cruel and unusual punishment, guaranteed by the Eighth Amendment, was violated by the limitation of one hour of out-of-cell exercise per week during the cell restriction. Id. He seeks monetary damages.

         B. Defendants' factual assertions

         Defendants' version of the facts does not differ materially from plaintiff's version of events. They have, however, amplified the facts.

         John White, Correctional Case Management Specialist II at NBCI, indicates in his Declaration (ECF 8-2 at 1-2) that the role of the RIV Committee is to implement policies to reduce incidents of inmate violence. Id. at 1, ¶ 5. The RIV Committee is permitted to impose alternative disciplinary sanctions independent of or in conjunction with an adjustment history sentencing matrix sanction. Id. at 1, ¶ 4; ECF 8-2 at 31; Code of Maryland Regulations (“COMAR”) § 12.02.27.39.

         White explains that cell restrictions imposed by the RIV Committee are alternative disciplinary sanctions permitted under COMAR. ECF 8-2 at 1, ¶ 5. Further, he explains: “Cell restriction confines an inmate to a designated location and prohibits the inmate from participation in privileges and activities including recreation activities such as out of cell exercise.” Id. at 2, ¶ 6; COMAR §12.02.27.39E(1).[4] Cell restriction imposed as an alternative sanction may not exceed 60 days. Id. at 32; COMAR §12.02.27.39D(5).

         COMAR 12.02.27.39A provides that alternative disciplinary sanctions “are separate and distinct from the sanctions plotted in the adjustment history sentencing matrix.” Moreover, under COMAR 12.02.27.39B, “[a]n alternative disciplinary sanction may be imposed independently of or in conjunction with: (1) Another alternative disciplinary sanction; or (2) An adjustment history sentencing matrix sanction.”

         The parties appear to agree that plaintiff actually served 73 days of cell restriction. ECF 12 at 6; ECF 8-2 at 27.

         2.

         During a search of plaintiff's cell on January 12, 2017, a homemade weapon described as a six-inch piece of plastic, sharpened to a point at one side, was discovered taped under a sink or a toilet. ECF 8-2 (Inmate Rule Violation Records) at 3, 6, 7.[5] Plaintiff admitted ownership of the weapon and signed a statement to that effect. Id. at 3, 6.[6] He was issued an Inmate Rule Violation under Rule 105, charging him with “possess, use or manufacture a weapon.” Id. at 3.

         A hearing was scheduled for January 24, 2017. Id. at 9. At that time, plaintiff voluntarily agreed to waive a formal hearing and to plead guilty to the charge. Id. at 10. Plaintiff and the facility representative agreed to a sanction of 60 days of disciplinary segregation, the revocation of 60 days of good conduct credit, and the indefinite suspension of visitation. Id. at 10-11.

         The RIV Committee reviewed plaintiff's hearing of January 24, 2017. On February 22, 2017, the RIV Committee imposed 30 days of cell restriction as an additional sanction, effective February 23, 2017. ECF 8-2 (DPSCS Administrative Action) at 14-16.

         On January 26, 2017, two days after the hearing for the first weapons charge, plaintiff was observed in the recreation cage acting suspiciously. ECF 8-2 at 18. He was escorted from the cage by an officer to a secure area. There, plaintiff surrendered two homemade weapons made from a meal tray, which he had hidden in his shoe. Id.[7] The remainder of the tray was found in plaintiff's cell. Id. Pevia was charged and a hearing was scheduled for February 7, 2017. Id. at 22. However, plaintiff elected to plead guilty to a violation of Rules 105, 116, 406, and 408. ECF 8-2 at 23. Thus, Pevia waived his right to a formal hearing. Id. Pursuant to a plea agreement, plaintiff received 125 days of disciplinary segregation, the revocation of 120 days of good conduct credit, and the indefinite loss of visitation. Id. at 23-24. Pevia was also advised that the Warden would review the decision and could modify the sanctions imposed. Id. at 24.

         Upon reviewing the second weapons charge on March 7, 2017, the RIV Committee imposed 60 days of cell restriction, to be served concurrent to the sanction previously imposed by the RIV Committee. ECF 8-2 at 27. The 60-day ...


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