United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
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). 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.
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).
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).
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
Judgment is governed by Fed.R.Civ.P. 56(a) which provides
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.
Supreme Court has clarified that this does not mean that any