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Jackson v. Gelsinger
United States District Court, D. Maryland
August 6, 2019
ROBERT JACKSON, Plaintiff
DENISE GELSINGER, et al., Defendants
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
is a Motion to Dismiss, or in the alternative. Motion for
Summary Judgment (ECF 29) filed by Defendants former
Assistant Warden Denise Gelsinger, Lieutenant Jeffrey C.
Shimko, and former Lieutenant Michael Malloy. Plaintiff has
responded. ECF 33. Upon review of the papers filed, this
Court finds a hearing in this matter unnecessary.
See Local Rule 105.6 (D. Md. 2018). For the reasons
stated below, the dispositive motion, construed as a Motion
for Summary Judgment IS GRANTED.
denying without prejudice Defendants' previously filed
dipositive motion, this Court summarized the facts of the
case as follows:
The case was instituted upon receipt of a civil rights
complaint filed pursuant to 42 U.S.C. § 1983 by self
represented Plaintiff Robert Jackson, a Maryland state
inmate. ECF 1. Plaintiff alleges that he was erroneously
labeled as a member of a Security Threat Group
("STG") and as a result has "continuously
suffered punishments and restrictions. ECF 1 at p. 4.
Plaintiff also claims that, "[t]his erroneous
information in Plaintiffs prison record is certainly
something that will influence his liberty interest [in
parole] if left uncorrected." ECF 19 at p. 11. He notes
that his first parole hearing is scheduled for January of
2019. Id.; ECF 19-2 at p. 8.
Plaintiff claims that his right to due process in correcting
the error has been denied. ECF 1 at p. 4, Plaintiff claims
that each of the named defendants was made aware of the
erroneous designation. He specifies that when Lt. Malloy was
the Intelligence Officer at the Western Correctional
Institution ("WCI"), he acknowledged that there was
a misperception regarding documents confiscated from
Plaintiff which resulted in the erroneous classification.
Id. at p. 4. Plaintiff alleges that this same
information was kept and made available to Lt. Shimko who is
the current Intelligence Officer at WCI. Id.
Plaintiff claims that Shimko refuses to correct the error and
that former Assistant Warden Denise Gelsinger erroneously
advised him that all Division of Correction policies were
In his opposition response. Plaintiff reiterates his claims
that he was not properly validated as a member of a STG in
accordance with Division of Correction rules and regulations.
ECF 19-1 at pp. 1-2. He has provided a declaration (ECF 19-1)
and materials (ECF 19-2) in support of his claim.
As an example of the materials confiscated from him and
deemed "gang related," Plaintiff has provided a
document entitled "Maryland Branch NABPP-PC Central
Committee Directive Rules for Engaging a Political Discussion
Circle." ECF 19-2 at p. 3. Plaintiff has also provided
the confiscation form prepared by the confiscating officer
which simply describes the papers as contraband and
"gang related material" without any further
explanation. Id. at p. 4.
On June 18, 2012, plaintiff wrote to Lt. Malloy, inquiring
why he was not placed on a pass list. Plaintiff noted that
documents were confiscated from his cell at the North Branch
Correctional Institution ("NBO") on January 5,
2012, and labeled "gang related material." ECF 19-2
at p. 5. He advised Malloy that he challenged that
classification of the materials and was to get a hearing, but
was transferred to WCI before the issue was resolved.
Id. Plaintiff maintained in his letter that the
materials were not gang related and that he wanted to know
how to proceed to challenge his being labeled a STG member.
Id. A handwritten response, apparently written by
Lt. Malloy dated July 2, 2012, stated:
Your assumption as to why you were labeled is correct. After
I reviewed the materials I could see how it is possible for
someone to think it was "gang" related. If you
would like to discuss our procedures, please write me and let
me know. Let me add, this is not a hearing for you to
challenge the claims. It would be the process as to
renounciate [sic] your affiliation. Let me know.
Id. at p. 5.
In response to Plaintiffs allegations, Defendants contend
that on January 8. 2012, Plaintiff was validated, by his own
admission, as a member of the STG named the "Black
Gorilla Family (BGF)" after having been found in
possession of gang related materials. ECF 13-2, ¶ 3
(Shimko Decl.) On January 8, 2013, alleged members of the
BGF assaulted Plaintiff.6 Id. The matter
was investigated and it was determined that the "assault
was possibly a form of sanction or discipline within the
Shimko avers that Plaintiff has been advised of the procedure
for renouncing his STG membership. Id. Shimko spoke
with Plaintiff several times regarding his STG validation and
the January 8, 2013 assault. Id. at ¶ 4.
Plaintiff was advised that if he cooperated with the
investigation regarding the January 8, 2013 assault he could
continue with the renunciation process, however, Plaintiff
In January of 2014, Shimko changed Plaintiffs status in the
Automated Gang Intelligence (AGI) database to
"inactive." Id. at ¶ 4. Shimko avers
that Plaintiffs status will continue to be monitored for a
probationary period of 12 months. Id. at ¶ 5.
"If no STG activity or any other gang affiliated
behavior used in the validation process is observed,
reported, documented and verified his request for removal
will be revisited." Id.
6 Plaintiff disputes that the assault was gang
related. ECF 19-1 at p. 2 (Jackson Decl.).
7 Plaintiff states that the assailants were not
identified despite his cooperation with the investigation.
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