United States District Court, D. Maryland
DONALD R. PEVIA, Plaintiff
RONALD A. SAVILLE, et al ., Defendants
L. Hollander United States District Judge
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. 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
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
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. Plaintiff has also filed a motion for
preliminary injunction (“P.I. Motion”). ECF 14.
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.
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:
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
* * * *
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.
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
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.
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.”
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.
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).
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.
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.
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.
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.
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. Ashraf ordered an x-ray of the
left shoulder to determine whether there was a fracture or
dislocation. Id. at 5.
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.
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.
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,
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. ¶ 6. When he entered the holding area in
the medical department he found plaintiff ...