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Pevia v. Saville

United States District Court, D. Maryland

September 4, 2019

DONALD R. PEVIA, Plaintiff
RONALD A. SAVILLE, et al ., Defendants


          Ellen L. Hollander United States District Judge

         Plaintiff Donald R. Pevia, who is self-represented, is an inmate confined at the North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland. He filed this civil rights suit against Warden Frank Bishop, Ronald Saville, and Adam Schroyer, pursuant to 42 U.S.C. § 1983. ECF 1.[1] Numerous exhibits are appended to the Complaint. Plaintiff alleges that while he was incarcerated at NBCI, he was injured when correctional staff disregarded a medical order and a settlement agreement reached between plaintiff and the State, requiring that he be handcuffed in front. Pevia maintains that the conduct of the correctional staff amounted to deliberate indifference to his medical needs.

         Of relevance here, plaintiff has previously filed several suits in connection with his need for front handcuffing. In 2013, in the case of Pevia v. Shearin, ELH-13-3083 (“Pevia I”) Pevia claimed that he sustained a shoulder injury due to improper handcuffing. The Court appointed pro bono counsel for Pevia (ECF 39) and the case settled. Id., ECF 50. Thereafter, in 2017, Pevia filed two additional suits, each raising identical claims but against different defendants. See Pevia v. Saville, Civil Action ELH-17-2319 (“Pevia II”); Pevia v. Bishop, et al., Civil Action ELH-17- 2322 (“Pevia III”). Pevia II named Saville as a defendant. Pevia III named Warden Bishop and Schroyer as defendants. This Court consolidated Pevia II and Pevia III. See Pevia II, ECF 30; Pevia III, ECF 27. And, in a combined Memorandum Opinion and Order of June 22, 2018, both cases were dismissed, without prejudice, because plaintiff had failed to exhaust administrative remedies. See Pevia II, ECF 29; ECF 30; Pevia III, ECF 27; ECF 28. Pevia subsequently completed the administrative process and then filed the instant case (“Pevia IV”), largely realleging the same facts as detailed in Pevia II and Pevia III.

         In Pevia IV, defendants have moved to dismiss or, in the alternative, for summary judgment (ECF 18), supported by a memorandum (ECF 18-1) (collectively, the “Motion”). They rely on, and incorporate by reference, the memoranda and exhibits that were previously filed in Pevia II and Pevia III. Plaintiff opposes the Motion (ECF 21), supported by his earlier submissions and additional exhibits.[2] Plaintiff has also filed a motion for preliminary injunction (“P.I. Motion”). ECF 14.

         No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, I shall deny defendants' Motion. I shall also deny plaintiff's P.I. Motion.

         I. Factual Background

         A. Plaintiff's claims

         In the earlier Memorandum Opinion, filed in the consolidated cases, I summarized the factual background as follows, Pevia II, ECF 29 at 2-6; Pevia III, ECF 26:[3]

I. Background
In October 2013, Pevia instituted a civil rights complaint against a host of defendants concerning correctional staff's disregard for medical orders directing plaintiff to be handcuffed in the front. See Pevia v. Shearin, et al., ELH-13-3083. In that case, I appointed pro bono counsel to represent Pevia. See ECF 39. A settlement conference was conducted by Magistrate Judge J. Mark Coulson on September 2, 2015. See Docket. Thereafter, the Court was advised that the case had been settled. Accordingly, I issued an Order of dismissal under Local Rule 111. See ECF 51.
On October 30, 2015, the settlement agreement was finalized between plaintiff and the defendants in the 2013 case: former Commissioner Michael Stouffer, former Warden Bobby P. Shearin, Keith Arnold, Dale Smith, Lt. Paul Pennington, Christopher Wedlock, Nicholas Soltas, James Vinci, Christopher Wedlock, Brian Goldizen, Jenifer Robertson, Warden Frank Bishop, Richard E. Miller, and the Department of Public Safety & Correctional Services (“DPSCS”). Pevia [III], ECF 16-1 at 5. The agreement specified that plaintiff was to be handcuffed in front. Pevia [II], ECF 1 at 3; ECF 17-4 at 3; Pevia [III], ECF 16-1 at 6; ECF 14-4 at 14. However, under the terms of the settlement, front cuffing could be temporarily denied in the event of an emergency, or if plaintiff abused the cuffing order. Pevia [II], ECF 17-4 at 3; Pevia [III], ECF 16-1 at 7; ECF 14-4 at 14.
In addition, the agreement also provided that plaintiff's front cuffing order could be re-evaluated after September 1, 2016. If the attending physician determined that the front cuffing order was no longer necessary, plaintiff could elect to obtain a second opinion from the orthopedic specialist contracted to the on-site medical service. If the orthopedic specialist disagreed with the attending physician, the orthopedic specialist's opinion would control, so long as the DPSCS Medical Director approved. Pevia [III], ECF 16-1 at 6-7; ECF 14-4 at 14-15.
In November of 2015, plaintiff underwent left shoulder compression surgery. Pevia [III], ECF 14-4 at 26-27.
B. Pevia [II]
In Pevia [II], plaintiff alleges that on August 29, 2016, Saville came to his cell to escort him to a sick call appointment. ECF 1 at 3. Plaintiff states that he placed his hands out of the cell door slot to be handcuffed in front and advised Saville that he was to be handcuffed in front, but Saville stated that if plaintiff wanted to go to sick call he would have to be handcuffed behind his back. Id. Plaintiff complied with Saville's directive and claims that, as a result, he felt a ripping sensation in his shoulder. Id. at 3-4.
Plaintiff alleges that shortly after the incident he was seen by Nurse Practitioner Krista Swann, who observed swelling at plaintiff's shoulder and expressed concern that the ligaments were torn again. Id. at 4. He was referred to physical therapy. Plaintiff claims that ultimately he was diagnosed as suffering from a strained bicep. Id. at 4.
* * * *
C. Pevia [III]
In Pevia [III], plaintiff alleges that on October 11, 2016, Schroyer was assigned to escort plaintiff to his housing unit from physical therapy. ECF 1 at 3. Schroyer directed plaintiff to turn around to be handcuffed. Id. Plaintiff advised Schroyer that he was to be handcuffed in front, but Schroyer advised him there was “no such thing as front cuff at NBCI.” Id. Plaintiff states that when they returned to his cell, there was a sign over plaintiff's cell door, which was placed there after the incident with Saville on August 29, 2016, indicating plaintiff was to be front handcuffed only. Id. at 4.
Plaintiff claims that, as a result of being handcuffed behind his back, he felt a sharp pain from his collar bone down to his forearm. Id. He asked Schroyer to notify the medical department that he needed assistance, but Schroyer failed to do so. Id. Plaintiff submitted a sick call slip and was provided a sling and ice for swelling as well as follow up care. Id. at p. 5.
On October 11, 2016, plaintiff submitted ARP NBCI-2268-16 complaining that Schroyer insisted on cuffing him from behind during an escort from physical therapy despite Pevia advising Schroyer he was to be front cuffed only. ECF 14-4 at 3. The ARP was denied on November 16, 2016, after an investigation determined that plaintiff's front cuffing order expired on August 18, 2016, and that he was subjected to a medical order which required “extended cuffing” which is what the ARP investigator noted plaintiff received. Id.
Documents provided to the court suggest that Pevia's front cuffing order had not in fact expired. See Pevia [III], ECF 14-4 at 14 (Memorandum dated January 17, 2018 from John White, IGO Coordinator to Assistant Warden Jeffrey Nines, indicating, among other things, that plaintiff was to be “front cuff only” until a reevaluation designated otherwise); ECF 14-4 at 16 (Letter dated February 1, 2018, from Dayena M. Corcoran, Commissioner of Correction to J. Michael Zeigler, Deputy Secretary, Operations DPSCS, advising, among other things, that upon plaintiff's return to NBCI on January 22, 2018, shifts were advised that plaintiff was front cuff only and a sign was placed on his cell door stating he is “front cuff only.”).
Pevia appealed the ARP to the Commissioner of Correction due to the lack of a response to his ARP from the Warden. ECF 14-4 at 11. He submitted a second appeal on November 26, 2016, after receiving the Warden's response. ECF 1-1 at 3-4. The appeal was denied on August 17, 2017. ECF 14-4 at 12.
On October 14, 2016, Pevia filed a grievance with the IGO concerning Schroyer's violation of the front cuffing order. Pevia [III], ECF 14-4 at 24. A hearing was held on July 13, 2017. Id. at 25. Plaintiff filed Pevia [III] on August 11, 2017. ECF 1.
The ALJ issued a written opinion on October 6, 2017, finding plaintiff's grievance to be meritorious and directed NBCI to “implement a meaningful program or other action to effectively inform all Correctional Officers whose responsibilities include handcuffing inmates that the Grievant is to be front-cuffed only until notified differently.” Id. ECF 14-4 at 42. The Secretary of DPSCS affirmed the ALJ's ruling on January 8, 2018. Id. at 16.

         Notably, after the Settlement Agreement, the front cuffing order was violated in November 2015 and in January 2016. Pevia II, ECF 17-4 at 37-38. Plaintiff filed grievances regarding both occurrences. He later signed off on the grievances after assurances were provided to him that staff had been alerted to his front cuffing order. Specifically, in response to ARP NBCI 0124-16, filed by plaintiff on January 13, 2016, regarding the violation of his front cuffing order, plaintiff was advised that his complaint was meritorious in part. Id., ECF 28-1 at 6. The response said, id.: “The institution has remedied your situation by having an Alert placed on OCMS and reflected on the NBCI Inmate Data Manager. Housing Unit 1 staff has been duly notified of your ‘Front Cuff Order' and a notification has been placed above your cell door to alert staff who may need to escort you within the Housing Unit or NBCI.”

         According to plaintiff, Saville was the “primary tier officer” for his tier at the time of the settlement negotiations, and was “fully aware” of the medical agreement. Pevia IV, ECF 21 at 4. He also claims that, after the settlement agreement was signed, emails were sent to notify officers regarding the cuffing procedure. Id. Among other things, he disputes the account of Sergeant Adam Schroyer concerning the events of October 11, 2016. Id.; see also id., ECF 21-6 at 2; Pevia II, ECF 28 at 2.

         Plaintiff has also provided an Affidavit from inmate Rico Marzano. Pevia IV, ECF 21-1. Mazano, who was housed next to plaintiff on August 29, 2016, states that when Saville approached plaintiff's door and announced that plaintiff had a sick call, plaintiff put his hands out of the slot to be cuffed. Id. Saville told Pevia, Id. “‘Behind the back only.'” Id. Pevia “advised Saville that he was front cuff.” Id. Saville responded that if Pevia did not cuff behind the back he would not go to his sick call. Marzano then heard cuffs being applied and saw plaintiff come out of his cell. Marzano avers that he “specifically heard Mr. Pevia tell Ofc. Saville That He was Front Cuff!” Id. (emphasis in original).

         B. Defendants' Contentions

         Saville avers that he was assigned to Housing Unit 1 for approximately two and one half years, from 2013 to the end of May 2015. Pevia II, ECF 24-3 (Saville Decl.), ¶ 4. In June 2015, Saville was assigned on a regular basis to plaintiff's housing unit, Housing Unit 2. Id. ¶ 5. On August 29, 2016, he escorted plaintiff to the medical department during “modified movement” Id., ECF 17-3 (Saville Decl.), ¶ 5. Saville denies that plaintiff advised him that he had a front cuffing medical order and states that plaintiff did not offer any paperwork stating he had a front cuff order. Id. ¶ 6. According to Saville, if plaintiff had done so, he would have honored the order and placed the handcuffs on in the front. Id. ¶ 11.

         Additionally, Saville explains that because of plaintiff's size and the breadth of his shoulders, he used two pairs of handcuffs during the escort. Id. ¶ 7. Saville maintains that plaintiff did not show any sign of discomfort, nor did he complain of pain or suffering. Id.

         In any event, the medical unit is about 50 yards from plaintiff's cell and the escort was brief. Id. ¶8. Plaintiff remained restrained during the medical examination, which took approximately 10-15 minutes. Id. ¶ 9.

         Prior to Saville's escort of plaintiff, plaintiff submitted a sick call slip on August 17, 2016, requesting to “see medical immediately” because his shoulder was “in more pain than before I had surgery.” Pevia II, ECF 17-2, at 63. He was seen by Robustiano Barrera, M.D. on August 20, 2016. Plaintiff described the pain as “bone on bone, ” and Dr. Barrera noted that plaintiff's range of motion was poor. Id. at 3-4.

         On August 29, 2016, after Saville escorted plaintiff to the medical unit, plaintiff was evaluated by Mahboob Ashraf, M.D., who noted that plaintiff reported to him that the shoulder pain “occurred after he was playing basketball.” Pevia II, ECF 17-2 (medical records) at 6-7. Dr. Ashraf did not make any notation that plaintiff mentioned the back cuffing.[4] Ashraf ordered an x-ray of the left shoulder to determine whether there was a fracture or dislocation. Id. at 5.

         Saville maintains that neither plaintiff nor the physician said anything to him about plaintiff being handcuffed from behind. Id., ECF 17-3, ¶ 9. The exam took “10-15 minutes.” Id. Thereafter, Saville escorted plaintiff back to his cell and removed the restraints. Id.¶ 10.

         On September 8, 2016, Krista Bilak, RNP examined plaintiff. Id., ECF 17-2 at 9-12. At that time, plaintiff was unable to lift his arm from his body and was in severe pain. Bilak diagnosed plaintiff as suffering from an acute “dislocation, recurrent, shoulder” and prescribed pain medication for him and provided him with an arm sling. Id. Plaintiff received a cortisol injection to his left bicep tendon on September 17, 2016. Id. at 14.

         Subsequently, plaintiff was approved for physical therapy, and was diagnosed with bicipital tendinitis. Id., ECF 17-2 at 15-16, 20. He underwent a series of physical therapy sessions with a goal to restore elevation of his left shoulder and establish a self-management program. Id. at 21, 27, 29-31, 33, 35-39, 46-50.[5]

         In regard to the incident of October 11, 2016, Schroyer denies that plaintiff informed him of the front cuffing order. Pevia III, ECF 14-3 (Scroyer Decl.), ¶ 7. Schroyer states that, prior to the incident, he had little to no involvement with plaintiff. Id. ¶ 5. He explains that he had been assigned to the segregation housing unit for an extended period of time and on the date of the incident was assigned to the Support Services Building, assisting with returning inmates to their assigned cell locations. Id. ΒΆ 6. When he entered the holding area in the medical department he found plaintiff ...

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