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Dove v. Armstead

United States District Court, D. Maryland

November 5, 2019

COREY LEE DOVE Plaintiff
v.
WARDEN LAURA ARMSTEAD Defendant

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

         Following this court's June 5, 2019 Memorandum Opinion and Order (ECF Nos. 13 and 14) granting in part and denying in part Defendants' motion to dismiss or for summary judgment, the sole remaining Defendant, Warden Laura Armstead, seeks summary judgment in her favor on the remaining claim raised by Plaintiff Corey Lee Dove. ECF No. 15 (Motion); ECF No. 17 (Memorandum in Support). Mr. Dove opposes the motion (ECF No. 18) and seeks an order compelling discovery (ECF No. 19), which is construed as a motion pursuant to Fed.R.Civ.P. 56(d).[1] No. hearing is required to resolve the matters pending. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow Defendant's motion shall be denied and Plaintiff will be provided an opportunity to file a motion to appoint counsel.

         Background

         The sole claim remaining to be resolved is Mr. Dove's allegation that he was transferred from Patuxent Institution (“Patuxent”) in retaliation for filing administrative complaints (“ARP”) regarding the provision of Native American religious services. Although the complaint named as Defendants Warden Laura Armstead, Assistant Warden Allen Gang, and Property Officer Jason Anderson, Mr. Dove's claim of retaliation was levelled only at Warden Armstead. This court observed:

Mr. Dove's claim that his transfer to JCI was retaliatory is a claim leveled solely at Warden Armstead. ECF No. 4. Because Defendants have not addressed the claim, review of the claim is limited to this court's screening authority under 28 U.S.C. §§ 1915A, 1915(e). A complaint may be dismissed pursuant to 28 U.S.C. § 1915A(b) if it is “frivolous, malicious or fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.” Under the provisions of 28 U.S.C. § 1915(e)(2) a case must be dismissed at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
Here, Mr. Dove claims his transfer to Jessup Correctional Institution (JCI) from Patuxent was in retaliation for filing complaints about conduct that interfered with Native American religious services and specifically alleges that Warden Armstead had a meeting regarding Native American services and “told everyone to stop everything about [the] service.” ECF No. 4 at p. 4. Shortly thereafter, Mr. Dove and Mr. Sykes were transferred to JCI. The claim is not frivolous and does not fail to state a claim upon which relief may be granted. There is an allegation of protected activity: filing of ARP complaints, see Booker, 855 F.3d at 545, followed closely in time by an adverse action against Mr. Dove which he claims had a causal relationship to his protected activity, see Constantine, 411 F.3d at 499. Defendant Warden Armstead will therefore be required to respond to the claim of retaliation.

ECF No. 13 at 15 (Memorandum Opinion).

         In support of her motion to dismiss or for summary judgment, Warden Armstead provides a declaration explaining that Mr. Dove was transferred to Patuxent from Maryland Correctional Institution Hagerstown (“MCIH”) in October of 2017, because a portion of MCIH was closed, necessitating the transfer of 50-60 inmates. ECF No. 15-1 at 1, ¶3. Mr. Dove and other inmates from MCIH were sent to Patuxent because bed space was available there. Id. Warden Armstead further states that Patuxent houses “program specific inmates as well as parole violators” but Mr. Dove and the other MCIH transferees were not sent there for either a program or because they were parole violators. Id. at 1-2, ¶4. In order to accommodate inmates who required programming at Patuxent, or who had violated parole, Mr. Dove and the other MCIH inmates were later transferred to other prisons as bed space was needed at Patuxent. Id. at ¶5. Pursuant to those needs and concerns, Mr. Dove was transferred on May 25, 2018. Id. Although Warden Armstead states that she relies on case management staff to determine the appropriate institutional assignment for inmates, there is no explanation regarding what that reliance entails. Id. at ¶6, see also ECF No. 15-2 (Declaration of Douglas Dill, Case Management Manager).

         In his opposition, Mr. Dove insists that there was a meeting during which Warden Armstead instructed others to stop all Native American services and that she would handle the situation. ECF No. 18 at 2. He claims the way she handled it was by transferring all of the participants in the Native American services out of Patuxent on the same day of the meeting. Id. at 3. He alleges that the meeting included Chaplain Ingram, the Chief of Security, and Sgt. Jason Anderson. Id. at 2. Mr. Dove acknowledges that he “was told about the meeting” but does not state who informed him of the meeting and relies on the timing of his transfer to establish the retaliatory nature of the transfer. Id. at 4; see also 6-7 (Declaration). Importantly, Mr. Dove does not include a description of how the transfer adversely impacted his rights or quelled his ability to utilize the administrative remedy process to seek redress for complaints related to his confinement.

         Legal Standards

         Summary Judgment

         Summary Judgment is governed by Fed.R.Civ.P. 56(a) which provides that:

The 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.

         The Supreme Court has clarified that this does not mean that any factual ...


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