United States District Court, D. Maryland
EARL D. JOHNSON, JR. Plaintiff
LT. RICHARD ROBINETTE, LUCRETIA HARRELL, Hearing Officer, CHAD ZIMMERMAN, Officer, Defendants
J. HAZEL UNITED STATES DISTRICT JUDGE.
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.
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.
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. He also alleges
they discriminated against him on the basis of race.
Id. at 5
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.
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.
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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 ...