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Brown v. Department of Public Safety And Correctional Services

United States District Court, D. Maryland

May 13, 2019

STEVEN BROWN, et al., Plaintiffs,


          Richard D. Bennett United States District Judge

         In these consolidated cases, nine blind or visually impaired inmates formerly or presently housed in correctional facilities maintained by the Maryland Department of Public Safety and Correctional Services have challenged the conditions of their confinement. (Consolidation Order, ECF No. 2.) Together, Plaintiffs Steven Brown (“Brown”), Wilbert M. Delano (“Delano”), Gregory Hammond (“Hammond”), Sedric Holley (“Holley”), Russell Hopkins (“Hopkins”), Johnny James (“James”), Tyrell Polley (“Polley”), Maynard Snead (“Snead”), and Robert Wilson (“Wilson”) (collectively, “Plaintiffs”) allege that Defendants Department of Public Safety and Correctional Services (the “Department”), Dayena Corcoran (“Corcoran”), Richard Miller (“Miller”), and Stephen Moyer (“Moyer”)[1] have deprived them of their right to access the courts, subjected them to cruel and unusual punishment, and discriminated against them on the basis of their disabilities. Their Amended Complaint (ECF No. 23) brings two Counts pursuant to 42 U.S.C. § 1983 (Counts I and II), a third Count under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. (Count III), and a fourth Count invoking Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Count IV).

         Currently pending before this Court are Defendants' Motion to Dismiss (ECF No. 100); Plaintiffs' Motion for Partial Summary Judgment (ECF No. 172); Defendants' Motion for Summary Judgment (ECF No. 178); Plaintiffs' Motion for Leave to File a Surreply (ECF No. 207); and Plaintiffs' Motion for Substitution or for Judicial Notice of Substitution under Federal Rule of Civil Procedure 25(d) (ECF No. 208). On April 24, 2019 this Court conducted a Motions Hearing and heard argument on the pending motions. See Local Rule 105.6 (D. Md. 2018). For the reasons stated below, Defendants' Motion to Dismiss (ECF No. 100) is DENIED AS MOOT; Plaintiffs' Motion for Partial Summary Judgment (ECF No. 172) is DENIED; and Defendants' Motion for Summary Judgment (ECF No. 178) is GRANTED IN PART AND DENIED IN PART; Plaintiffs' Motion for Leave to File a Surreply (ECF No. 207) is GRANTED;[2] and Plaintiffs' Motion for Substitution or for Judicial Notice of Substitution under Federal Rule of Civil Procedure 25(d) (ECF No. 208) is GRANTED. Summary Judgment IS ENTERED in favor of all Defendants on Counts I and II. Counts III and IV will proceed as to the Department and Robert L. Green in his official capacity, commencing on Monday, June 17, 2019.


         In ruling on the pending motions for summary judgment, this Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769 (2007); see also Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). Plaintiffs allege that Defendants have subjected them to constitutional deprivations and discriminated against them on the basis of their disabilities. All nine Plaintiffs suffer from varying degrees of visual impairment. (Am. Compl. ¶¶ 13-21; PSJ[3] Ex. 1.) When Plaintiffs commenced this action by filing nine pro se Complaints in March 2016, all Plaintiffs were incarcerated at the Roxbury Correctional Institution (“RCI”). Some Plaintiffs have also been housed at other institutions like Eastern Correctional Institution (“ECI”), Patuxent Institution, and the Maryland Reception, Diagnostic and Classification Center (“MRDCC”). (ECF Nos. 1, 3.) Since the filing of this case, five Plaintiffs (Delano, Hammond, Holley, Hopkins, and Polley) have been released.

         I. Structure of the Department.

         The Department of Public Safety and Correctional Services is overseen by the Department Secretary. (PSJ Ex. 16.) Within the Department, the Commissioner of Correction supervises the wardens at each prison. (PSJ Ex. B, Corcoran Dep. 46:13-20.) Roxbury Correctional Institution (“RCI”) and Eastern Correctional Institution (“ECI”) are facilities within the Division of Correction, each of which is managed by a Warden or Acting Warden. (PSJ Ex. C, Campbell 30(b)(6) Dep.; Ex. D, West 30(b)(6) Dep.)

         Defendant Stephen Moyer was the Secretary of the Department since January 2015. (DSJ Ex. 11, Moyer Dep. 18:5-16.) In this position, he managed approximately 10, 000 employees and a $1.4 billion budget. (Id. at 32:9-33:15.) He was heavily involved in coordination efforts between his Department and other Maryland political bodies and had little involvement in the day-to-day operations at Department facilities: his work included preparing and participating in budgetary hearings and meetings with the Governor's Office and the Department of Legislative Affairs, monitoring pending bills, and meeting with other cabinet members. (Id. at 32:2-34:5, 36:2-38:1.) On March 7, 2019, Moyer announced his departure from state service effective at the end of that month. (Defs.' Mot. Summ. J. 5, n.4.) While this case was pending, Robert L. Green (“Green”) became the Secretary of the Department of Public Safety and Correctional Services.

         Defendant Dayena Corcoran was the Commissioner of Correction for the Department from 2016 until September 2018. (DSJ Ex. 12, Corcoran Dep. 46:10-12, 48:2-10.) In that role, she was responsible for implementing and enforcing Division of Correction policies and managed the wardens. (Id. at 46:10-47:14, 99:3-20.) Defendant Richard Miller was the Warden of RCI from April 2015 to November 2017. (DSJ Ex. 13, Miller Dep. 25:10-16.) His job required him to manage the operations of the entire RCI facility, including over 400 employees and 1, 800 inmates. (Id. at 57:2-58:2.)

         The Department contracts with the Maryland Department of Labor, Licensing and Regulation (“Department of Labor”) to provide educational, vocational shop, and library programs, services, and activities at RCI and ECI. (PSJ Ex. 17; Ex. E, Reid 30(b)(6) Dep. 172:7-10, 190:4-8, 192:5-11.) The Department also contracts or otherwise arranges with third-party entities to provide medical services and other programs, services, and opportunities to inmates at RCI. (PSJ. Ex. F, Baucom 30(b)(6) Dep. 37:10- 38:9; Ex. E, Reid 30(b)(6) Dep. 291:4-292:11.)

         II. Services Provided at RCI.

         Plaintiffs generally complain that Defendants have provided inadequate aids and services to permit them to conduct their affairs in prison privately and independently. Because they have been denied adequate training or other services, they complain that they have been forced to rely on other inmates to complete various tasks like filing grievances and court complaints, reading and writing correspondence, and navigating prison facilities. They also complain that they have been forced to share prison cells with other inmates, a practice the parties refer to as “double-celling” (as opposed to being celled alone, or “single-celling”) and that they have been excluded from various programs on the basis of their visual impairments, including desirable jobs. The net effect of all this, Plaintiffs complain, is that they have been rendered vulnerable to violence and extortion at the hands of sighted inmates and they have been denied benefits accorded to other inmates, including additional diminution credits.[4] In the following pages, these grievances are discussed in greater detail.

         A. Housing Blind Inmates at RCI and ECI.

         Defendants admit that RCI, a medium security facility, was and continues to be the designated Department facility for blind inmates, regardless of their security classification. (PSJ Ex. E, Reid 30(b)(6) Dep. 37:15-18; Ex. C, Campbell 30(b)(6) Dep. 29:16-17, 194:5-7, 414:18-20; Ex. K, Baker Dep. 103:21-104:14; Ex. M, Gelsinger Dep. 122:5-7; Ex. N, Hershberger Dep. 19:14-16.) Although some inmates with visual impairments have been housed at ECI, once an inmate's visual impairment becomes sufficiently severe, they are sent to RCI because ECI does not “have the accommodations that Roxbury Correctional Institution has” for the blind. (PSJ Ex. D, West 30(b)(6) Dep. 60:7-61:5.) With the exception of a few days spent at other facilities, all Plaintiffs have spent all or the majority of their incarceration at RCI, with some Plaintiffs (Hammond and Wilson) also housed at ECI for significant periods. (PSJ Ex. 27; Ex. 28; Ex. 29; Ex. 30; Ex. 31; Ex. 32, at 1676; Ex. 33, at 183; Ex. 12, at 1084-85; Ex. J-78, at POLLEY 420-21; Ex. 14; Ex. 34.3.) Plaintiffs Brown, James, Snead, and Wilson remain incarcerated at RCI. (See PSJ Ex. 35; Ex. 12, at 1084-85; Ex. 14; Ex. D, West 30(b)(6) Dep. 44:8-20.)

         B. Communications with Blind Inmates.

         The Department provides access to many of its programs, activities, and services through reading and writing but does not provide documents in alternative formats that blind inmates can access independently, such as large print, audio, Braille, or accessible electronic formats that could be accessed on a computer with the use of a screen reader or screen magnification software. (PSJ Ex. E, Reid 30(b)(6) Dep. 116:19-117:19, 201:11-16; Ex. C, Campbell 30(b)(6) Dep. 128:14-21; Ex. M, Gelsinger Dep. 108:11-109:18; Ex. D, West 30(b)(6) Dep. 51:15-52:15; see Ex. 19, Olivero Rpt. 6, 20-27 (discussing alternative formats for print usable by blind people)).

         When inmates want to make a request or register a complaint, they can use either an informal or formal grievance process, each of which relies on the submission of a print form. The informal request process depends on submission of an informal complaint form or another written document. (PSJ Ex. C, Campbell 30(b)(6) Dep. 99:21-100:11; Ex. D, West 30(b)(6) Dep. 50:21-51:14.) That form is not available in any alternative formats. (PSJ Ex. E, Reid 30(b)(6) Dep. 116:15-117:19; Ex. D, West 30(b)(6) Dep. 51:15-52:15.) The formal complaint process, known as the administrative remedy procedure (“ARP”), requires use of a print form that is not available in large print or any other accessible format. See Ex. E, Reid 30(b)(6) Dep. at 201:11-16 (stating that the ARP form is not available in large print and that “we are not allowed to manipulate forms”).

         It is undisputed that no staff are explicitly assigned to act as readers and scribes for visually impaired inmates. The RCI Inmate Handbooks and Department of Public Safety and Correctional Services and Department of Corrections Directives make no mention of any staff position or inmate assignment to provide these services, but the case management manual does specify that “case managers are to assist inmates as required or as requested.” (PSJ Ex. C, Campbell 30(b)(6) Dep. 122:2-8; E-94; Ex. G-102; Ex. D-124; Ex. I-3.) Former RCI Warden Gregg Hershberger and former Commissioner Dayena Corcoran described staff assistance to blind inmates as voluntary. (PSJ Ex. B, Corcoran Dep. 94:9-95:9; see Ex. N, Hershberger Dep. 88:3-9.)

         Defendants assign sighted inmates as escorts, or “walkers, ” for blind inmates to help them navigate the prison. (PSJ Ex. 49, The Department's Supp. Answers Delano Interrog. No. 8 (Mar. 13, 2019)). Inmate escort is a “preferred” job, the criteria for which are that the inmate be housed at RCI and off disciplinary segregation a certain number of days. (PSJ Ex. E-94, at S BROWN 140-141; Ex. E, Reid 30(b)(6) Dep. 214:13-215:17.) Sex offenders were permitted to be walkers until 2018. (PSJ Ex. E, Reid 30(b)(6) Dep. 214:18-215:3; see Ex. E-5, at BROWN 3101-02; Ex. E-94, at S BROWN 140-41.) Defendants choose the inmates who serve as escorts without input from blind inmates. (PSJ Ex. K, Baker Dep. 147:20-148:3.) The former lieutenant for the housing unit containing the tier for blind inmates claimed to instruct his tier officers how to train walkers, and that the tier officers were tasked with training walkers. (Ex. A, Franklin Dep. 40:6-41:17.) Nevertheless, there is conflicting evidence of this topic: the former tier officer for the blind tier denied any such training existed (Ex. L, Conrad 20:4-6), as did Defendant's designee (Ex. E, Reid Dep. 223:14-224:12), and a former walker (Ex. U, Willey Dep. 50:3-15).

         It is disputed whether inmate walkers are responsible for reading and writing for blind inmates. Maureen Reid, one of the Defendants' Rule 30(b)(6) designees, [5] testified that reading and writing for blind inmates is part of walker duties. (PSJ Ex. E, Reid 30(b)(6) Dep. 194:2-7.) Other evidence suggests that this help was discretionary. (PSJ Ex. U, Willey Dep. 67:10-70:18) (testimony of former walker for Russell Hopkins indicating that reading and writing for blind inmates was in his discretion); (PSJ Ex. 24, Job Duties for Inmates Assigned as Walkers) (declaring that walkers “may assist” the visually impaired inmate with any written correspondence). There is no dispute that inmate walkers are not required to have a GED or high school diploma, are not tested on their ability to read and write for inmates, and are provided no training in being a reader or scribe. (PSJ Ex. E, Reid 30(b)(6) Dep. 215:18-216:21; Ex. E-94, at S BROWN 140-41.)

         C. Work Assignments

         Kitchen (or “dietary” or “food service”) assignments allow inmates at RCI to earn 10 credits off their sentences (“diminution credits”) per month, which can significantly reduce the length of a sentence. (PSJ Ex. E, Reid 30(b)(6) Dep. 236:15-237:14.) Other jobs, such as sanitation and laundry, earn only 5 credits a month. (PSJ Ex. 64.) There is evidence that Defendants excluded Plaintiffs from kitchen jobs because they were concerned about the safety of blind inmates operating unsupervised in a prison kitchen. (Defs.' Resp. Ex. 21; Ex. 22, Schenck Dep. 93:16-94:2; 129:17-130:2.) In 2016, Defendants created the “blind greeter” position within dietary, which is reserved for a blind inmate. (Id. at 117:18-118:13, 119:4- 120:4.) The blind greeter's sole job is to greet correctional officers as they enter the officers' dining room and request that the officers sign a clipboard. (Id.) After numerous requests from Mr. Delano and Mr. Hopkins to be reassigned to the kitchen, Defendants placed Delano in the blind greeter position on February 25, 2016, and Hopkins in the blind greeter job in July 2017. (PSJ Ex. 68; Ex. 65; Ex. AA-151, at R HOPKINS 332-42; Ex. AA-149, at W DELANO 65, DELANO 563, W DELANO 67-68, 74.)

         D. Celling Arrangements

         Almost all Plaintiffs were placed in double-cells at some point during their incarcerations. Hammond was double-celled around March 2016 (PSJ Ex. 53; 54); Delano was double-celled for various periods beginning in October 2017, February 2018, and again in March 2018 (PSJ Ex. 8); Brown was briefly double-celled between December 2014 and January 2015 (PSJ Ex. 7); Wilson was double celled from September 20, 2015 to March 29, 2017 (PSJ Ex. 15); and Polley was double-celled for some period in 2016. (PSJ Ex. 62.) The Department's own medical contractor had recommended the assignment of a single-cell to many of these placements, and plaintiffs have submitted evidence to show that these recommendations were not always followed.

         III. Procedural History.

         On March 30, 2016, this Court received ten identical pleadings filed by an unknown prisoner seeking appointment of counsel for nine visually impaired inmates. By Order of this Court, these cases were consolidated on April 4, 2016. (ECF No. 2.) The Order also granted the Plaintiffs' Motion for appointment of counsel. On April 5, 2016 Damien Dorsey of the Prisoner Rights Information System of Maryland (“PRISM”) entered an appearance on behalf of the plaintiffs. (ECF No. 4.) Plaintiffs filed an Amended Complaint on September 7, 2016. (ECF No. 23.)

         This Court granted Defendants numerous extensions of time to respond to the Amended Complaint. The deadline was extended to December 12, 2016 (ECF No. 30); to January 27, 2017 (ECF No. 32); to March 15, 2017 (ECF No. 34); to May 15, 2017 (ECF No. 37); to July 17, 2017 (ECF No. 39); to September 15, 2017 (ECF No. 41); to October 16, 2017 (ECF No. 44); and to December 15, 2017 (ECF No. 48). Defendants neither moved to dismiss the Complaint nor filed an Answer for over two years. Finally, on January 10, 2019, Defendants responded to the Complaint by moving to dismiss. (ECF No. 100.) This motion was filed in the midst of a tight discovery period set to end on March 1, 2019 and with trial set for April 22, 2019. In the Motion, Defendants asserted-for the first time in the history of this litigation-that they were immune to Plaintiffs' ADA claims. The Defendants have still not filed an Answer to the Complaint.

         On March 18, 2019 Plaintiffs filed a Motion for Partial Summary Judgment seeking judgment on some of their claims brought pursuant to Title II of the ADA and Section 504 of the Rehabilitation Act (Counts III and IV). (ECF No. 172.) On March 19, 2019, Defendants filed a Motion for Summary Judgment, seeking Judgment on all of Plaintiffs' claims. (ECF No. 178.)

         In light of the Defendants' Motion for Summary Judgment, Defendants' Motion to Dismiss is DENIED AS MOOT. Many of the substantive arguments of the Motion to Dismiss are incorporated into Defendants' Motion for Summary Judgment and are addressed herein. To the extent that Defendants contend that Plaintiffs' Amended Complaint lacks sufficient factual allegations, such arguments are rejected.


         Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one that “might affect the outcome of the suit under the governing law.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A genuine issue over a material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. When considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter for resolution at trial. Id. at 249. Trial courts in the Fourth Circuit have an “affirmative obligation . . . to prevent factually unsupported claims and defenses from proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)).

         In undertaking this inquiry, this Court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Libertarian Party of Va., 718 F.3d at 312; see also Scott v. Harris, 550 U.S. 372, 378 (2007). This Court “must not weigh evidence or make credibility determinations.” Foster v. University of Md.-Eastern Shore, 787 F.3d 243, 248 (4th Cir. 2015) (citing Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007)); see also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015) (explaining that the trial court may not make credibility determinations at the summary judgment stage). Indeed, it is the function of the fact-finder to resolve factual disputes, including issues of witness credibility. See Tolan v. Cotton, 572 U.S. 650, 656-59 (2014).

         When both parties file motions for summary judgment, as here, this Court applies the same standard of review to both motions, considering “‘each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.'” Defenders of Wildlife v. North Carolina Dept. of Transp., 762 F.3d 374, 392 (4th Cir. 2014) (quoting Bacon v. City of Richmond, Va., 475 F.3d 633, 638 (4th Cir. 2007)). “[B]y the filing of a motion [for summary judgment, ] a party concedes that no issue of fact exists under the theory he is advancing, but he does not thereby so concede that no issues remain in the event his adversary's theory is adopted.” Brown v. Perez, 835 F.3d 1223, 1230 n.3 (10th Cir. 2016) (citation omitted); see also Sherwood v. Washington Post, 871 F.2d 1144, 1148 n.4 (D.C. Cir. 1989) (“[N]either party waives the right to a full trial on the merits by filing its own motion.”). “However, when cross-motions for summary judgment demonstrate a basic agreement concerning what legal theories and material facts are dispositive, they “‘may be probative of the non-existence of a factual dispute.” Syncrude Canada Ltd. v. Highland Consulting Group, Inc., 916 F.Supp.2d 620 (D. Md. 2013) (quoting Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983)); Georgia State Conference of NAACP v. Fayette County Bd. of Comm'rs, 775 F.3d 1336, 1345 (11th Cir. 2015).


         I. Constitutional Claims Brought Pursuant to 42 U.S.C. § 1983 (Counts I and II).

         In Counts I and II of the Amended Complaint, Plaintiffs assert constitutional violations under the auspices of 42 U.S.C. § 1983. Under 42 U.S.C. § 1983, “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person with the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .” § 1983. Section 1983 does not create “substantive rights”; rather, it provides “a method for vindicating federal rights elsewhere conferred.” Thompson v. Dorsey, ELH-10-1364, 2011 WL 2610704, at *3 (D. Md. June 30, 2011) (quoting Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807 (1994)).

         In Count I, Plaintiffs allege that they have been denied access to the courts in violation of the Fourteenth Amendment of the United States Constitution. In Count II, Plaintiffs complain that they have been subjected to serious harm and a substantial risk of serious harm in violation of the Eighth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment. Plaintiffs assert these claims against Defendants Corcoran, Miller, and Moyer in their individual and official capacities. They seek compensatory damages, punitive damages, and injunctive relief. Defendants move for Summary Judgment on these claims.

         A. Individual and Official Capacity Claims.

         Plaintiffs advance Counts I and II against Corcoran, Miller, and Moyer in both their individual (or personal) capacities and their official capacities. In Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099 (1985), the Supreme Court articulated the distinction between these two suits, explaining that “personal capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official capacity suits, in contrast, ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.'” 473 U.S. at 165, 105 S.Ct. 3099 (1985) (citations omitted). By suing Corcoran, Miller, and Moyer in their official capacities, Plaintiffs seek to hold the Maryland Department of Public Safety and Correctional Services, and by extension the State of Maryland, liable for violations of Section 1983. See Clark v. Maryland Dep't of Pub. Safety & Corr. Servs., 316 Fed.Appx. 279, 282 (4th Cir. 2009) (“[T]he Maryland Department of Public Safety and Correctional Services in undoubtedly an arm of the state for purposes of § 1983.)

         Section 1983 only authorizes suits against “person[s].” 42 U.S.C. § 1983. In Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304 (1989), the United States Supreme Court held that neither a State nor its officials acting in their official capacities are “persons” who are subject to suit for money damages under Section 1983. 491 U.S. at 71. Judge Hollander of this Court has recently aptly noted that “[i]ndeed, § 1983 claims are not cognizable against states, state agencies, or state agents acting in their official capacities.” Graham v. Cox, ELH-18-221, 2019 WL 1427860, at *10 (D. Md. March 29, 2019). Section 1983 “creates no remedy against a state, ” such that even a state's express waiver of sovereign immunity cannot render it amenable to suit under Section 1983.[6] Arizonans for Official English v. Arizona, 520 U.S. 43, 69, 117 S.Ct. 1055, 1070 (1997); see also Machete Prods., LLC v. Page, 809 F.3d 281, 288 (5th Cir. 2015) (explaining that state cannot be sued under § 1983 for monetary relief even if it waives its sovereign immunity). Accordingly, Plaintiffs may not pursue money damages against Corcoran, Miller and Moyer in their official capacities.

         Plaintiffs may pursue injunctive relief against Defendants under Section 1983, however. In Will, the Supreme Court explained that “a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the state.'” 491 U.S. at 58, 71 n.10, 109 S.Ct. 2304 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S.Ct. 3099 (1985); see also Van Story v. Washington Cty. Health Dep't, ELH-17-3590, 2018 WL 5830740, at *6 (D. Md. Nov. 7, 2018) (recognizing this “exception to the general law.”). While this case was pending, Robert L. Green became the Secretary of the Department of Public Safety and Correctional Services; therefore, Plaintiffs pursue injunctive relief against Green in his official capacity. See Fed. R. Civ. P. 25(d). In sum, the plaintiffs are pursuing § 1983 official capacity claims against Green for injunctive relief, and § 1983 individual capacity claims against Corcoran, Miller, and Moyer for monetary relief.

         B. Defendants are entitled to Judgment on Plaintiffs' access to courts claims.

         In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 (1977), the Supreme Court declared that prisoners have a constitutionally protected right to access the courts. 430 U.S. at 821, 97 S.Ct. 1491. To preserve this right, the Supreme Court directed prison authorities to “assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Id. at 829, 97 S.Ct. 1491. The Court subsequently clarified that Bounds did not establish a freestanding right to a law library or legal assistance. Lewis v. Casey, 518 U.S. 343, 350, 116 S.Ct. 2174 (1996). As this Court recently noted, Bounds does not grant prisoners the “wherewithal to transform themselves into litigating engines” pursuing any conceivable legal claim. Moise v. Howard Cty Det. Ctr., RDB-18-1355, 2019 WL 454101, at *5 (D. Md. Feb. 4, 2019) (quoting Lewis v. Casey, 518 U.S. 343, 355, 116 S.Ct. 2174 (1996)). Rather, prisoners' constitutional rights are protected so long as they are afforded a “reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement.” Lewis, 518 U.S. at 355, 116 S.Ct. 2174 (citations omitted).

         To prevail on access to courts claims, Plaintiffs must demonstrate that they have suffered an “actual injury” hindering their ability to bring legal challenges. O'Dell v. Netherland, 112 F.3d 773, 776 (4th Cir. 1997) (quoting Lewis, 518 U.S. at 356, 116 S.Ct. 2174). Because prisoners do not possess an “abstract, free-standing right to a law library or legal assistance, ” this Court has previously held that they cannot prevail by identifying a “theoretical” defect in the prison's library or legal assistance program. Pearson v. Simms, 345 F.Supp.2d 515, 519 (D. Md. 2003) (quoting Lewis, 518 U.S. at 351, 116 S.Ct. 2174). Simply proving that “an institution's library is inadequate or access to that library is restricted” will not suffice. Strickler v. Waters, 989 F.2d 1375, 1385 (4th Cir. 1993). Rather, Plaintiffs must demonstrate that their “nonfrivolous” legal claims have been “frustrated” or “impeded.” Lewis, 518 U.S. at 353, 116 S.Ct. 2174.

         To establish liability under 42 U.S.C. § 1983, plaintiffs must show that the defendants “acted personally” to cause the alleged violation. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (citation omitted). Under Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994) supervisory liability may attach under § 1983 if a plaintiff can establish three elements: (1) the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. 13 F.3d at 799 (citations omitted). Plaintiffs may meet their “heavy burden of proof” to show that Defendants acted with deliberate indifference by “demonstrating a supervisor's continued inaction in the face of documented widespread abuses.'” Shaw, 13 F.3d at 799 (quoting Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984). Plaintiffs cannot rely on “pointing to a single incident or isolated incidents.” Slakan, 737 F.2d at 373.

         1. Plaintiffs have not adduced sufficient evidence to raise a genuine dispute of material fact as to Defendants' liability.

         Plaintiffs cannot show that Corcoran, Miller, and Moyer are liable for any purported denial of court access. In this case, nearly all the alleged incidents Plaintiffs invoke to support their access-to-courts claim occurred before the Defendants were on the job. Moyer became Secretary in 2015; Corcoran was Commissioner from 2016 until 2018; and Miller was the Warden at RCI from April 2015 until November 2017. No. jury may conclude that these Defendants were “personally involved” in actions which took place before they had any supervisory authority over RCI. Instead, Plaintiffs are tasked with holding these Defendants liable for the very few purported constitutional violations occurring during their tenure.

         Plaintiffs argue that Defendants “bur[ied] their heads in the sand” while overseeing RCI and ignored clear indications that Plaintiffs were being deprived of their access to the courts. Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015). For this proposition, they rely in part on Defendants' “knowledge of the present lawsuit” and a civil Complaint Wilson filed in May 2016, alleging that he was “partially blind and crippled, and has no help from the Institution to access the law books.” (Pl.'s Resp. 37, ECF No. 182; Ex. 34, WILSON 403-11.) Plaintiffs do not cite authority holding that knowledge may be imputed from the allegations in a Complaint. Moreover, this Court is mindful that both the Amended Complaint in this suit and Wilson's filing neglects to cite even a single specific instance in which Plaintiffs were denied access to the courts. Cf. Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir. 1985) (finding no supervisory liability despite police chief's knowledge of complaints of police brutality). Defendants cannot be charged with the knowledge of constitutional violations merely because Plaintiffs filed lawsuits containing vague allegations. As Plaintiffs wholly rely on the existence of this lawsuit to impute knowledge to Secretary Moyer, he cannot be held liable for these claims.

         Additionally, Plaintiffs cite a handful of purported red flags which they conclude put Defendants Corcoran and Miller on notice of their claims. They note that soon after Miller became the warden of RCI, Holley sent him a 2012 decision issued by the Inmate Grievance Office (“IGO”) which found that “RCI was not providing . . . library services for the sight impaired.” (Pl.'s Resp. Ex. 1, Miller Dep. 95:8-96:1, 157:5-158:5; PSJ Ex. I-17, at S HOLLEY 10.) Miller considered taking remedial action by purchasing Dragon transcription software, but ultimately did not see the purchase through before leaving RCI. (Pl.'s Resp. Ex. 1, 49:7-53:17.) In December 2017, Corcoran participated in discussions and a demonstration of auxiliary aids. (Pls.' Resp. Ex. 13, Corcoran Dep. 63:1-64:6; Ex. 39, Stanford Dep. 14:6-15:10.) Defendants also cite ARPs filed in 2016 by Snead. In one ARP appeal, he complained that blind inmates could not obtain staff assistance with filing ARPs. (PSJ Ex. G-110, at SNEAD 1196-99, 1202-05, 1207-09.) In another, Snead claimed that he had sent several letters to the Warden complaining that his case manager would not arrange private telephone calls with his attorneys and that he could not communicate with them in writing, fearing that recruiting the help of other inmates to do so would jeopardize his attorney-client privilege. (Pls.' Resp. Ex. 40, SNEAD 81-82.) Miller and Corcoran dismissed the first ARP appeal. Plaintiffs argue that a jury may infer that the latter was also brought to their attention based on the deposition testimony of a corporate designee, Maureen Reid, who indicated that staff members would know to advance disability-related requests to their supervisors. (PSJ Ex. E, Reid 30(b)(6) Dep. 85:18-21.)

         One IGO finding and two ARPs submitted over the course of two years are not sufficient to infer that Miller and Corcoran had actual knowledge that their subordinates were placing plaintiffs in a pervasive and unreasonable risk of constitutional injury. This evidence falls far short of the “longstanding, pervasive, well-documented, or expressly noted” rights violations contemplated by the Fourth Circuit. Furthermore, neither the IGO nor the ARPs cited by Plaintiffs conclude or allege that blind inmates were unable to file lawsuits. Cf. Hall v. Stouffer, 2018 WL 4599646, at *14-15 (finding genuine dispute of fact as to supervisory liability where plaintiff wrote correspondence to Defendant complaining that he was being “totally deprived” of his access to the courts and had no relevant legal materials and legal assistance at his disposal). At best, Miller and Corcoran knew that the library lacked certain auxiliary aids and that one inmate, Snead, complained of trouble pursuing grievances and consulting with his attorney. There is no evidence that Miller and Corcoran buried their heads in the sand while plaintiffs were shut out of court. Accordingly, Defendants Corcoran, Miller, and Moyer may not be held liable. They are entitled to Judgment as a matter of law.

         2. Plaintiffs have not adduced evidence of actual injuries.

         Even if Defendants could be held liable, they would be entitled to Judgment in their favor because there is no evidence that Plaintiffs suffered an actual injury. To adequately demonstrate an “actual injury” for purposes of summary judgment, plaintiffs must show that the underlying claim is “nonfrivolous, ” that is, at least “arguable” and based on “more than hope.” Christopher v. Harbury, 536 U.S. 403, 416, 122 S.Ct. 2179 (2002). To meet this burden Plaintiffs must at least identify the nature of the underlying claim and produce competent evidence of its existence. See James v. Cotter, CV9:14-4518-TLW-BM, 2017 WL 7054157, at *6 (D.S.C. Sept. 19, 2017), report and recommendation adopted, 9:14-CV-4518-TLW, 2018 WL 573157 (D.S.C. Jan. 26, 2018) (granting summary judgment because plaintiff failed to adduce docketing information or any probative evidence to show that he was prejudiced by the loss of legal papers).

         Wilson, Holley, Hammond, and Polley have conceded that they cannot identify a single instance in which they were denied access to the courts. In response to an interrogatory asking them to “identify each occasion on which you claim that because of your blindness you were denied access to court, ” these plaintiffs either admitted that their claims were baseless or did not answer the question. Wilson answered that he made “no such allegations” at the time. (DSJ Ex. 17, Wilson Supp. Answers to Interrog. No. 7.) Holley complained that he lacked accommodations “allowing him to perform his own legal research” but that “[h]e was able to retain an attorney.” (DSJ Ex. 18, Holley Supp. Answers to Interrog. No. 7) Hammond explained that he paid another inmate to assist him with motions for post-conviction relief and that he “prevailed in his request for relief.” (DSJ Ex. 19, Hammond Supp. Answers to Interrog. No. 7.) Polley answered that, aside from being able to use an accessible computer at ...

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