United States District Court, D. Maryland
DONALD R. PEVIA, Plaintiff
COMMISSIONER OF CORR. 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 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.
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. The motion is supported by a memorandum
(ECF 19-1) (collectively, the “Motion”) and
exhibits. Plaintiff opposes the Motion. ECF 23; ECF
He has also submitted several exhibits.
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.
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.
Plaintiff's factual assertions
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 forms. Id.
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,  had not been returned. Id. at 2.
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.
supplement to the Complaint (ECF 3), plaintiff advised that
he was subsequently moved to disciplinary segregation.
Id. at 1. 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.
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.
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
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.
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.
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.
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.
Defendants' factual assertions
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.
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.,
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,
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. Id., ¶ 11.
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.
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 ...