United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
Plaintiff Michael Fisher, a Maryland Division of Correction
("DOC") prisoner currently confined at Roxbury
Correctional Institution ("RCI"),  seeks
compensatory and punitive damages against Orlando Johnson,
Chief of Security at Patuxent Institution, in his official
and individual capacities. Fisher alleges that while housed
at Patuxent, a treatment-oriented maximum security facility,
Johnson on two occasions subjected him to retaliation that
adversely impacted his prison job and classification status
and resulted in his transfer to North Branch Correctional
Institution ("NBCI"), a maximum security prison.
first Motion for Summary Judgment, based in part on the
affirmative defenses of sovereign and qualified immunity,
granted with regard to imposition of liability in an official
capacity. The Motion was otherwise denied because Johnson
failed to provide evidence sufficient to refute Fisher's
claims of retaliation with regard to his removal from a
prison job, placement on administrative segregation, or
transfer from Patuxent to NBCI. ECF 28; see also
Memorandum Opinion and Order dated April 28, 2017, ECF 37 and
provided further response, construed as a supplemental Motion
for Summary Judgment (ECF 40), which Fisher opposed. ECF 45.
The Motion was denied without prejudice subject to renewal
upon presentation of evidence explaining why Fisher was kept
at Patuxent and employed in 2014, then placed on
administrative segregation in 2016 and transferred from
Patuxent. ECF Nos. 50 and 51.
was granted one final opportunity to supplement his
dispositive motion by providing copies of relevant
"Intel" relied upon by Johnson and/or provided to
the Case Management team at the time these decisions were
made. His Response (ECF No. 60) falls short. For reasons set
forth herein, the Court grants Johnson summary judgment with
regard to the April, 2014 incident that resulted in
Fisher's temporary job loss; denies Johnson summary
judgment with regard to the 2016 incident culminating in
Fisher's transfer to NBCI; and grants Fisher's
request for appointment of counsel.
purpose of clarity, certain discussion outlined in previous
Memoranda is reiterated here.
undisputed that while housed at Patuxent, Fisher received an
infraction alleging he had diluted a urine
specimen. ECF No. 41-1, Decl. of George Gregory, and
attached records at pp. 11-12. On April 16, 2014, the hearing
officer found him not guilty, noting that the lab report
established a urine creatinine level of 14, "but
neglected to state what a normal level in the urine would
be." Sgt. Gaskins, who worked in the same area as
Fisher, testified that the printing press makes the area hot,
and those working there drink a lot of water. Gaskins further
testified that when Fisher was called for random urinalysis
testing he had no notice, left directly for the test, and had
no time to intentionally "water load." ECF 60-1, p.
the "not guilty" finding, Fisher was offered an
informal resolution in connection with the infraction by the
hearing officer. Assistant Warden James Flood approved the
decision, but nonetheless imposed a disciplinary sanction,
removing Fisher from his job assignment in the ID
room. ECF 1-1 at p. 1. Fisher filed an
Administrative Remedy Procedure ("ARP") complaint
against Flood and Johnson to protest imposition of the
sanction. ECF 1-1 at p. 12. Fisher claims that as a result of
the ARP, Johnson told Patuxent personnel that they should not
hire him for various prison positions, including choice
assignments such as Maryland Correctional Enterprises (MCE).
reviewing a hearing officer's decision, a warden or
his/her designee may without explanation impose additional
informal or alternative sanctions regardless of the sanctions
imposed by a hearing officer, and may affirm a decision but
vacate or modify an informal disposition. See Md.
Code Reg. 12.02.27.31 (West, April 28, 2017). Nothing
suggests that Johnson played any role in Assistant Warden
Flood's decision to remove Fisher from his job assignment
following the April 2014 adjustment decision. Thus,
Fisher's removal from that position does not, in and of
itself, suggest improper or retaliatory conduct by Johnson.
to Fisher, following the April 2014 adjustment proceeding,
Johnson was promoted to Director for Security Operations for
Maryland's Department of Public Safety and Correctional
Services ("DPSCS"), and was no longer stationed at
Patuxent. ECF 34-1 at pp. 5-6. Fisher states that on June 25,
2015, following Johnson's departure, Fisher was hired to
work at Maryland Correctional Enterprises ("MCE").
A few months later, Johnson returned to Patuxent as Chief of
Security. Johnson's return had no immediate impact on
10, 2016, Fisher mailed a Maryland Tort Claim via certified
mail against Johnson alleging retaliation resulting in his
inability to secure a prison job as well as interference with
legal mail. The paperwork was received by the State
Treasurer's Office on May 17, 2016. ECF 1-1, pp. 8-10.
Two days later, on May 19, 2016, Fisher was placed on
Administrative Segregation by Johnson pending an
investigation as to whether Fisher was dangerous to the
security of the institution, other prisoners, or staff.
Id. at p. 11. On May 24, 2016, a Case Management
team recommended Fisher be removed from his job at MCE and
held in administrative segregation pending transfer, after