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Yelizarov v. Moyer

United States District Court, D. Maryland

July 1, 2019

STANISLAV YELIZAROV, # 425-555, SID # 3031079, Plaintiff
STEPHEN T. MOYER, Secretary, Department of Public Safety and Corr. Services, CSO III DANTE SISON, LT. EVAN WARD, and WARDEN RICKY FOXWELL, Defendants[1]



         Self-represented plaintiff Stanislav Yelizarov, confined at the Eastern Correctional Institution (“ECI”), [2] has filed suit under 42 U.S.C. § 1983, alleging the violation of his civil rights because his personal property was confiscated and later destroyed after his transfer in 2017 to the Maryland Correctional Training Center (“MCTC”)[3] to ECI. ECF 1. He also claims that the confiscation violated the Division of Correction (“DOC”) Inmate Property and Clothing policy, set forth in 12.02.17 of the Code of Maryland Regulations (“COMAR”), Handling and Storage of Inmate Property.[4] Yelizarov does not seek compensation for his lost property. Instead, he asks this Court to enter a declaratory judgment mandating that “a matter of record” be “established before an administrative law judge” at the Inmate Grievance Office (“IGO”). ECF 1 at 4.[5] Plaintiff submitted several exhibits with ECF 1.

         In a supplement to the Complaint (ECF 4), Yelizarov states, under oath, that defendant Dante Sison destroyed his property during the pendency of an appeal of his Administrative Remedy Procedure (“ARP”), a grievance that, in this instance, concerned his entitlement to the property.[6] He also states that defendant Evan Ward, the ARP Coordinator, conducted a “fictitious investigation” into Yelizarov's grievance. Id. Further, Yelizarov alleges that defendant Ricky Foxwell, who was then the Warden of ECI, “allow[ed]” his officers to violate inmate rights and failed to punish “negligent” employees. Id.

         In response to the Complaint, defendants moved to dismiss or, in the alternative, for summary judgment. ECF 18. The motion is supported by a memorandum (ECF 18-1) (collectively, the “Motion”) and affidavits and exhibits, including an audio recording of an adjustment hearing held on July 12, 2017. ECF 18-3.[7] Yelizarov was advised of his right to respond and to oppose the dispositive motion (ECF 19), and he has done so. ECF 20. Additionally, Yelizarov filed a Motion to Subpoena Video Camera Footage (ECF 21), which defendants oppose. ECF 24. Yelizarov replied. ECF 25.

         No hearing is needed to resolve the motions. See Local Rule 105.6 (D. Md. 2018). For the reasons stated below, Yelizarov's Motion to Subpoena Video Camera Footage is DENIED and defendants' Motion, construed as both a motion to dismiss and a motion for summary judgment, is GRANTED.

         I. Factual Background

         On June 1, 2017, Yelizarov was notified by Sison that certain personal property in Yelizarov's possession while he was housed at MCTC could not be kept at ECI. ECF 18-2 at 27. Some items exceeded the quantity permitted under the allowable property matrix, while others were not allowed at all, or were not permitted because they had not been purchased through the prison commissary, or were not the proper color. Thus, the items were considered contraband and confiscated.

         Plaintiff signed the confiscation notice two times. Id. at 34. The first appears to be in June 2017. The second occurred on July 18, 2017, under the following handwritten statement: “Send an appeal to the commissioner waiting for the response.” Id.

         The confiscated items included the following, ECF 1 at 6-7; ECF 18-2 at 27, 34-35:

1. Two (2) long sleeves T-Shirts;
2. Two (2) cargo shorts;
3. One (1) Altus Belt (back support - hold for medical paper from ECI medical);
4. Five (5) mechanical pens (non-commissary items);
5. One (1) permanent marker (non-commissary items);
6. One (1) black Sony headphones;
7. One (1) Norelco rechargeable trimmer;
8. Two (2) sweatshirts with hoods;
9. One (1) Jordan Shorts - black and white (white gray or combination of white/gray only);
10. One (1) shorts with black markings;
11. One (1) universal adaptor;
12. One (1) port authority white polo shirts with buttons;
13. One (1) gray sweatpants with pockets;
14. One (1) buffalo jeans (with embellishment on back pockets);
15. One (1) Levis jeans (color not allowed);
16. One (1) black house slippers (non-commissary items);
17. Two (2) tanktops; 18. Two (2) colored boxers;
19. Two (2) excess prayer rugs;
20. Two (2) personal blankets;
21. Three (3) bags - green and blue (non-clear bags); and
22. One (1) altered white t-shirt.

         The confiscation notice is a form, and it contains a place to designate the address to which items are to be mailed. ECF 18-2 at 34. Notably, that portion of the form is circled but no address is specified. Id.

         Possession of these items led to a charge against Yelizarov for a violation of prison to Rule 406, relating to possession of contraband. An adjustment hearing was held on July 12, 2017, conducted by Hearing Officer Dehavilland Whitaker. Plaintiff argued that “grandfathering” provisions permitted him to retain or store the property at ECI.

         The Hearing Officer's notes reflect Yelizarov's testimony that he was instructed by Sgt. Muncey that under the “grandfathering” clause several of his items could properly be stored at MCTC but that when he was transferred, those items could be stored only if they were permitted at ECI, the receiving institution. ECF 18-2 at 29. The Hearing Officer also noted Yelizarov's testimony that he had not been called to the property room by Sison on June 1, 2017, and that Sison “never gave me a chance to say ‘send these items home' that I know I am not allowed to have.” Id.

         The Hearing Officer found that Yelizarov was entitled to keep a pair of Levi denim jeans and Sony headphones. ECF at 5; ECF 18-2 at 28-30; ECF 18-3, audiotape at 27:00 to 28:20.[8]Plaintiff was found not guilty of a violation of Rule 406. ECF 18-2 at 29. No. appeal was taken by plaintiff.

         Executive Directive OPS.220.0004F(12) requires that disposition of property “held as part of a pending disciplinary action or criminal proceeding . . . shall be delayed [for disposition] until after the action or proceeding is completed, including appeals.” Under Executive OPS.220.0004.F(7), if an inmate “establishes ownership” of “personal property” that is considered “contraband only because it is not authorized by the managing official, or exceeds the limitation on authorized personal property and may be legally possessed outside of a correctional facility, facility staff shall arrange with the inmate and, if necessary at the inmate's expense, for the item to be sent to a destination determined by the inmate.” If an inmate is indigent, in some circumstances, the facility is to pay the cost of mailing the property. If an inmate who is financially able to pay refuses to pay or if any inmate refuses to provide a mailing address, the staff is permitted to dispose of the property. OPS 220.0004F(7)(b). As noted, the confiscation notice does not reflect an address for mailing plaintiff's items.

         On December 1, 2017, Sison issued a Memorandum to Assistant Warden Walter West, seeking permission to destroy the confiscated property, which had been held for more than six months. ECF 18-2 at 31. Permission was granted and all the items, including the denim jeans and the Sony headphones, were destroyed on December 4, 2017. See ECF 18-1 at 7

         Yelizarov contends that he was not provided with an opportunity to send his property home prior to and after the hearing on July12, 2017. He also claims that the two Matters of Record (“MORs”), attached to Sison's Memorandum to West of December 1, 2017, are false. One MOR is dated September 1, 2017 (ECF 18-2 at 32), and states that Yelizarov was given “multiple chances” to send the property home after the confiscation on June 1, 2017, and he was also informed that possession of the property was not “grandfathered.” Id. But, the MOR states ...

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