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Johnson v. Robinette

United States District Court, D. Maryland

March 22, 2019

EARL D. JOHNSON, JR. Plaintiff
v.
LT. RICHARD ROBINETTE, LUCRETIA HARRELL, Hearing Officer, CHAD ZIMMERMAN, Officer, Defendants

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE.

         Plaintiff Earl D. Johnson, Jr., an inmate confined at the Maryland Correctional Training Center (MCTC) in Hagerstown, Maryland filed a complaint against Defendants Lieutenant Richard Robinette, Hearing Officer Lucretia Harrell, and Officer Chad Zimmerman pursuant to 42 U.S.C. §1983. ECF No. 1. Pending is Defendants' Motion to Dismiss or, Alternatively, for Summary Judgment. ECF No. 16. Plaintiff opposes the Motion. ECF No. 18. Also pending are Plaintiff's two Motions for Summary Judgment. ECF Nos. 15, 19.

         No hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons to follow, Defendants' Motion, ECF No. 16, treated as a Motion for Summary Judgment, will be granted in part and denied in part. Plaintiff's Motions for Summary Judgment, ECF Nos. 15, 19 will be denied, and Plaintiff will be appointed counsel.

         I. BACKGROUND

         Plaintiff alleges that Lieutenant Robinette and Officer Zimmerman sexually harassed him from August 10, 2017 to October 10, 2017, including unjustified “weekly” strip searches that including the touching of Plaintiff's naked butt and genitalia. ECF No. 1 at 4-5, 8.[1] He also alleges they discriminated against him on the basis of race. Id. at 5

         Plaintiff claims that on October 3, 2017, he was issued a “false” notice of a rule violation for possessing fermented juices. Id. at 3. Plaintiff claims he was denied due process at his infraction hearing, alleging various defects in the process, including a broken chain of custody, faulty or absent field test results on the fermented juices, and the admission of hearsay testimony. Id. at 4, 6-7. As relief, Plaintiff is seeking $300, 000.00 in damages and lost wages. ECF No. 1 at 3.

         Defendants' verified exhibits and declarations state that on October 3, 2017, Zimmerman and Robinette went to check on a strong odor of fermented juices coming from the cell Plaintiff shared with Ryan Wallace. Decl. of Chad Zimmerman, ECF No. 16-2 ¶ 2; Decl. of Richard Robinette, ECF No. 16-3 ¶ 2; ECF No. 16-5 at 2. Zimmerman found a box with several plastic bags containing fermented juice under Plaintiff's bunk. Zimmerman confiscated the bags and wrote an adjustment on Plaintiff. Decl. of Chad Zimmerman, ECF No. 16-2 ¶ 2; ECF No. 16-3 ¶ 2. The juice was analyzed and tested positive for alcohol. ECF No. 16-5 at 1. Zimmerman declares that “jail house wine” has been discovered under Plaintiff's bunk on other occasions. ECF No. 16-2 ¶ 2; ECF No.16-5 at 6 (testifying that the first time Johnson received a warning, the second time Johnson was placed on cell restriction, and the third time a Notice of Inmate Rule Violation was issued). Id. Zimmerman denies strip searching Plaintiff or making sexual comments to him. ECF No. 16-2 ¶ 3; ECF No. 16-4 ¶ 2.

         Officer Robinette witnessed Zimmerman pull a large bag wrapped in a coat from under Plaintiff's bunk. ECF No. 16-3 ¶ 2. Robinette also explained that prison rules require that when contraband is found in a double cell, both cellmates are issued rule violation notices, allowing the hearing officer to consider the matter and determine the consequences. ECF No. 16-3 ¶ 2.

         Plaintiff was charged with violating three prison rules: Rule 111, possession or use of unauthorized medication, drugs, or a substance identified as an intoxicant, excluding alcohol and a controlled dangerous substance; Rule 114, possession of a controlled dangerous substance, intoxicant, or alcohol in sufficient quantity or packaging to suggest intent to distribute or distribution; and Rule 301 possession or use of alcohol without authorization. ECF No. 16-5 at 1. Johnson was served with the Notice of Rule Violation on October 4, 2017. ECF No. 16-5 at 3. Johnson did not request a representative at the hearing. He requested Zimmerman appear as a witness. ECF No. 16-5 at 3.

         On October 19, 2017, Hearing Officer Lucretia Harrell presided over Johnson's infraction hearing. Johnson pleaded not guilty to all three rule violations. Id. at 4. Harrell granted Johnson's request to dismiss the Rule 111 violation. Id. at 5. Johnson also moved to dismiss the Rule 114 violation charge, arguing the photographs in evidence did not show the quantity or weight of the liquid recovered, and to dismiss the Rule 301 violation because the fermented juice was not in his personal possession. Id. Harrell denied his request because the amount of liquid recovered was evident in the photographs, and because he had constructive possession of the contraband. Id.

         Zimmerman testified at the hearing that he recovered between seven and eight gallons of alcohol under Johnson's bed as well as a bag of sugar and oranges. ECF No. 16-5 at 6. Zimmerman testified this was the third time Johnson has violated these prison rules. The first time Johnson had received a warning, the second time he was placed on cell restriction, and the third time a Notice of Inmate Rule Violation issued. Id. Harrell found Zimmerman's testimony and report credible and reliable. She found Johnson's testimony unpersuasive and found him guilty of violating Rules 114 and 301. She imposed a 60-day segregation sentence and revoked 60 days of good time credits for the Rule 114 violation. ECF No. 16-5 at 7. She imposed no sanctions for the Rule 301 violation. Id.

         Johnson appealed the decision to the Warden, who affirmed the guilty finding. The Warden reduced Johnson's sanctions to 20 days of segregation and revoked 20 good conduct credits. ECF No. 16-5 at 10-14.

         II. STANDARD OF REVIEW

         A motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of showing that there is no genuine issue as to any material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). However, no genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of his or her case as to which he or she would have the burden of proof. Celotex, 477 U.S. at 322-23. Therefore, on those issues on which the nonmoving party has the burden of proof, it is his or her responsibility to confront the summary judgment motion with an affidavit or other similar ...


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