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Pevia v. Commissioner of Corr.

United States District Court, D. Maryland

August 24, 2018

DONALD R. PEVIA, Plaintiff
v.
COMMISSIONER OF CORR. 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 an “Order To Show Cause For An [sic] Preliminary Injunction and Temporary Restraining Order, ” which was docketed as a civil rights complaint, pursuant to 42 U.S.C. § 1983. ECF 1. Pevia contends that defendants violated his right to access legal materials. Id. at 1. See also ECF 29.

         The defendants are the Commissioner of Correction; Warden Frank Bishop; Lt. Thomas Sawyers; Sgt. Gregory Forney; and Correctional Officer (“C.O.”) II Amy Conner. They have filed a motion to dismiss or, in the alternative, for summary judgment. ECF 19.[1] The motion is supported by a memorandum (ECF 19-1) (collectively, the “Motion”) and exhibits. Plaintiff opposes the Motion. ECF 23; ECF 25.[2] He has also submitted several exhibits.

         Plaintiff has also filed a motion to appoint counsel. ECF 26. In addition, plaintiff has filed a letter with the court (ECF 30) seeking, among other things, a copy of ECF 29. And, he seeks to add two additional defendants. See ECF 3.

         No hearing is needed 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. Plaintiff's motions for appointment of counsel, for injunctive relief, and to add two defendants, shall be denied. But, his request for a copy of ECF 29 shall be granted.

         I. Background

         A. Plaintiff's factual assertions

         In his Complaint, plaintiff alleges that in 2014, his security level was raised to “Max II, ” which he claims “denied him almost all access to law library.” ECF 1 at 1. According to plaintiff, his only access to legal materials was through LASI[3] forms. Id.

         In January of 2016, plaintiff received an “evidence disc from his post conviction lawyer.” Id. He states that “on numerous occasions he attempted to gain access to the law computer to argue numerous issues to raise on his now pending Federal Habeas Corpus.” Id. C.O. Conner advised plaintiff that the computer was sent out around December 6, 2016, for updating and, as of January 10, 2017, [4] had not been returned. Id. at 2.

         Plaintiff states that in October of 2016, defendants instituted a policy which denied all inmates on Housing Unit 2 access to the law library. Id. According to Pevia, “their exact words [were] ‘Your library privileges has been revoked.'” Id.

         In a supplement to the Complaint (ECF 3), plaintiff advised that he was subsequently moved to disciplinary segregation. Id. at 1.[5] He maintains that disciplinary segregation has the same limitations on access to the law library and legal materials as Housing Unit 2. Id. According to Pevia, he may only access law library materials via LASI. Moreover, no legal books are permitted in his cell and his access to a “law computer” is very limited, i.e. 45 minutes per week. Id.

         Pevia asserts that “all [his] evidence and transcripts are on disc.” Id. at 1-2. He maintains that, without adequate access to the computer, he cannot do legal research. Id. at 2. Pevia also complains that he must be handcuffed while listening to the discs, which prohibits him from taking notes, and that when the disc needs to be “re-wound” the officer must use the computer mouse, which plaintiff alleges violates his right to confidentiality. Id. at 2.

         In a subsequent filing with the court (ECF 14), plaintiff advised that he had been removed from disciplinary segregation and returned to Housing Unit 2-general population. Id. at 1. Plaintiff states that defendants Sawyers, Forney, and Conner are regular staff on his housing unit. Id. According to plaintiff, all legal work that he requires to be copied must be given to the tier officers and then to case management. Id. In order to use the copy machine he must submit a request to Conner. Id. at 2. Plaintiff must also turn in his administrative remedy requests to these officers. Id.

         According to Pevia, on June 15, 2017, he was approached by an officer about documents he possessed in regard to another case pending before this court (i.e., Pevia v. Nines, et al., Civil Action ELH-17-10). Plaintiff states that he filed this document with the court due to “the very possibility of retaliation.” Id. He recounts times where he believes defendants and other officers acted against him, and asks the court to “view any suspicious misconduct by the defendants as retaliation.” Id. at 2.

         In his initial filing, plaintiff indicated that he had to file an administrative grievance in order to obtain copies. ECF 1 at 2. Moreover, he indicates that at the time of filing the complaint, he was in the process of exhausting his administrative remedies. Id.

         Pevia notes that he is serving a 60-year sentence and has multiple appeals to consider, as well as motions to re-open and for actual innocence. ECF 3 at 2. He also notes that he has other civil issues pending. Id.

         As relief, plaintiff requests an injunction permitting him access to his legal materials and that defendants provide: “Updated law computer with 2016 Md Appeals for post conviction, Direct Appeals along with any and all Federal Appeals[;] 2.Up to date Md. Statute and codes, Md. Rule book for civil and criminal law[;] And any other legal material mandated by Md. Law.” ECF 1 at 3.

         B. Defendants' factual assertions

         Defendant Conner avers that in October and November of 2016, inmates on Housing Unit #2 at NBCI were involved in several gang related assaults involving weapons and the stabbing death of an inmate. ECF 19-3 (Conner Decl.) at ¶ 5. In order to diminish the potential sites for additional violence, Housing Unit #2 restructured the way inmates could use the “in-house library.” Id. The reorganization limited the movement of inmates to meeting areas outside of Housing Unit #2 and increased use of the in-house library for other purposes, including religious services and group meetings. Id.

         On October 29, 2016, defendant Sawyer issued a memorandum directing that inmates were required to submit a Library Request Form to the Librarian via institutional mail. ECF 19-3, ¶ 6. Inmates were permitted to access the “In-House Law Computer” and a copy machine by submitting a request form to Conner who, after receipt of the request, would place the inmate on a pass list. Id., ¶¶ 6-7.

         NBCI Librarian Hammons avers that Housing Unit #2 inmates have access to an in-house legal computer, which has access to “LEXIS Nexis.” ECF 19-4 (Hammons Decl), ¶ 4. On an unspecified date, staff discerned that the computer had not been updated.. ECF 19-3, ¶ 8. On about November 30, 2016, staff from the information technology department took the computer to be updated. However, the hard drive malfunctioned, which required its replacement. ECF 19-3, ¶ 8; ECF 19-4, ¶ 5. The needed repair delayed the return of the computer. ECF 19-3, ¶ 8. The computer was returned on January 23, 2017. ECF 19-3, ¶9; ECF 19-4, ¶ 5.

         Conner avers that she maintains a log of inmate requests to use the legal research computer and that plaintiff had access to the computer, except for the repair period from November 30, 2016 to January 23, 2017. Id. at ¶ 9. While the computer was being updated and repaired, Housing Unit #2 was provided additional LASI forms by the NBCI Librarian, Rebecca Hammons, in order to provide an additional avenue for inmates to access legal materials. ECF 19-3, ¶ 10; ECF 19-4, ¶ 6. The LASI requests are processed by Hammon (ECF 19-4, at ¶ 7) who reports that plaintiff utilized LASI on an almost weekly basis. Id., ¶ 8. Conner reports that plaintiff made few requests for computer access.[6] Id., ¶ 11.

         Defendants further explain that since April of 2016, plaintiff filed three ARPs concerning access to legal materials. ECF 19-2. I have summarized them below.

* ARP NBCI-2252-16, filed October 7, 2016, alleged that plaintiff could not listen to evidence CDs in the Housing Unit # 2 library because there were no speakers. He also alleged that the library did not have up to date legal books. ECF 19-2 at 9-10. The ARP was denied by the Warden. Plaintiff's appeal to the Commissioner was dismissed on March 15, 2017, upon a finding that the Warden had fully addressed plaintiff's complaint and plaintiff failed to provide additional evidence to substantiate his claim. Id. at 17.
* ARP NBCI-2422-16, filed November 3, 2016, complained about the elimination of the Housing Unit #2 library. Id. at 23-24. The Warden denied the ARP, noting that the housing unit had been on secure status due to serious gang assaults; the LASI program provided adequate access to legal materials; and inmates could request access to the in-house legal computer. Id. at 23, 29. Plaintiff's appeal to the Commissioner was dismissed on February 21, 2017, based on a finding that the Warden had fully addressed the complaint. Id. at 21-22.
* ARP NBCI-0105-17, filed January 11, 2017, complained about access to photocopies and use of the in-house computer. Id. at 36-37. The ARP was withdrawn by plaintiff on January 22, 2017. Id. at 38.

         Russell A. Neverdon, Executive Director of the Inmate Grievance Office (“IGO”), avers that plaintiff did not file any grievances with the IGO regarding denial of access to the library or use of ...


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