United States District Court, D. Maryland
DONALD R. PEVIA, Plaintiff
COMMISSIONER OF CORRECTIONS, et al Defendants
L. Hollander United States District Judge.
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.
have moved to dismiss or, in the alternative, for summary
judgment. ECF 8.The motion is supported by a memorandum
(ECF 8-1) (collectively, the “Motion”) and
exhibits. Plaintiff opposes the Motion. ECF 12; ECF
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.
Plaintiff's factual assertions
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.
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.
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
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
Defendants' factual assertions
version of the facts does not differ materially from
plaintiff's version of events. They have, however,
amplified the facts.
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.
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). Cell restriction imposed as an alternative
sanction may not exceed 60 days. Id. at 32; 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
parties appear to agree that plaintiff actually served 73
days of cell restriction. ECF 12 at 6; ECF 8-2 at 27.
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. Plaintiff admitted ownership of the weapon
and signed a statement to that effect. Id. at 3,
He was issued an Inmate Rule Violation under Rule 105,
charging him with “possess, use or manufacture a
weapon.” Id. at 3.
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.
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
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. 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.
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 ...