Partlow v. Maryland Parole and Probation

          MEMORANDUM

          Catherine C. Blake United States District Judge

         Plaintiff Tavon Partlow, Sr., filed this civil rights complaint alleging that he was denied a timely parole revocation hearing, resulting in his imprisonment for seven months. His complaint also alleges that he endured poor conditions of confinement during that time, ECF 1. Defendants filed a motion to dismiss or for summary judgment in response to the complaint. ECF 13. Partlow opposed the motion. ECF 16. No. oral argument is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons stated below, defendants' motion, construed as a motion for summary judgment, will be granted.

         Background

         Partlow alleges he was entitled to a revocation hearing within 60 days of being taken into custody on a retake warrant issued by the Parole Commission, as mandated by Code of Maryland Administrative Regulation ("COMAR") 12.08.01(F)(2). ECF 1 at 4. Partlow states that the pending charge against him was a misdemeanor and was charged by summons as opposed to a warrant. Id. He alleges that the failure to provide a hearing was a violation of his due process rights that resulted in his loss of liberty and "deprivation of familial association." Id. at 6.

         Partlow states that he has medical issues that were not accommodated while he was incarcerated at Patuxent Institution pending his revocation hearing. ECF 1 at 6. He explains that he had heart surgery in mid-July of 2018 for a condition that "started when [he] was a child." Id. at 5. He was wheelchair bound "for a few years" following surgery to correct an issue with his hips that occurred when both femurs separated from his hip joints. Id. Although he regained the ability to walk, he is dependent on a cane due to bilateral hip arthritis. Id. at 5-6. Partlow was not permitted to keep his cane with him when he was taken into custody on the retake warrant. Id. at 6. Partlow also suffers from post-traumatic stress disorder (PTSD), a result of witnessing numerous homicides during his childhood, and suffers from depression. Id. at 6. He states he explained all of his conditions to both medical and correctional staff, ^[1] but was kept on a third floor tier despite his limitations. Id.

         In addition to being denied the use of his cane, Partlow states he was not allowed to bring or have access to his "sleep machine to help with [his] breathing.", ECF 1 at 6. He states he could not sleep due to his depression and his anxiety regarding bills that were no longer being paid. Id. He also explains that his planned "gastric sleeve surgery" was put on hold due to his incarceration, which in turn delayed a plan for total hip replacement surgery. Id. He claims that any time a weapon was found in a common area of the housing unit, the entire unit would be locked down for 30 days; his unit was locked down three consecutive times. Id. at 7. The lock down status made it difficult for Partlow to exercise, causing additional joint pain, and made it difficult for him to contact his family. Id.

         According to Partlow, he was subjected to "constant harassment" from the correctional officers. ECF 1 at 7. He alleges that on October 22, 2018, Officer Fon "verbally assaulted" him when he told Partlow he wasn't a "real Muslim," adding that "we need to take more showers." Id. Partlow includes with his complaint copies of administrative remedy procedure ("ARP") complaints regarding the incident, to which he asserts he never got a real response. Id.; see also ECF 1-1 at 1-3 (ARP and response regarding Oct. 22, 2018, incident), 8-10 (ARP regarding Nov. 25, 2018, incident of officer harassment, no response).

         On December 8, 2018, Partlow fainted due to "extremely high blood pressure." ECF 1 at 7. Other inmates in the housing unit kicked and banged on their cell doors to get the attention of an officer so that Partlow would get the medical attention he needed, but Partlow claims it still took 45 minutes before he was "rescued." Id. Although he was taken to Howard County General Hospital for treatment, Partlow states that no attempt was made to determine why he was having fainting spells during the six months he was confined at Patuxent. Id. As relief, Partlow seeks compensation for each day he was incarcerated, for lost wages, attorney's fees, and other compensatory damages. ECF 1 at 8.

         Defendants explain that Partlow began serving a seven-year term of confinement^[2] on October 13, 2009, and was released on mandatory supervision^[3] on May 20, 2016. See ECF 13-1 at 10; ECF 13-7 at 1 (Mandatory Release Certificate). His mandatory supervision expired on September 22, 2018. ECF 13-2 at 2, ¶ 10.

         In December of 2017, a summons was issued for Partlow by the District Court for Harford County, Maryland, charging him with second-degree assault. ECF 13-2 at 1, ¶ 4. No. action was taken by the Parole Commission, although Partlow remained under supervision at that time. Id. In August of 2018, another summons was issued by the District Court for Harford County, charging Partlow with second-degree assault of his 13-year-old son. ECF 13-2 at 2, ¶ 5. On August 29, 2018, a retake warrant was issued by the Parole Commission charging Partlow with violating the conditions of his release. Id. at 2, ¶ 6; see also ECF 13-11 (Retake Warrant). Pursuant to that retake warrant Partlow was taken into custody on October 1, 2018. ECF 13-13 (Supervision Summary).

         On October 9, 2018, Partlow waived a preliminary parole revocation hearing and admitted he violated the conditions of his release. ECF 13-12 (Waiver of Preliminary Hearing and Admission of Violations). Notwithstanding that admission, the Parole Commission postponed Partlow's revocation hearing and detained him until resolution of the pending assault charges in Harford County. ECF 13-2 at 2, ¶ 10.

         Parole Commissioner Jason Keckler explains that the decision to postpone the revocation hearing was based in part on the nature of the criminal charges pending against Partlow and the fact that, if his mandatory supervision release were revoked, his confinement could be extended to January 28, 2021. ECF 13-2 at 2-3, ¶ 10. Despite the fact Partlow was confined on the retake warrant on a date beyond the September 22, 2018, expiration of his supervision, Partlow remained incarcerated. Id.

         In a letter dated March 4, 2019, counsel for Partlow contacted the Parole Commission requesting a hearing date for his revocation. ECF 13-15. A revocation hearing was held before Commissioner Keckler on April 12, 2019. "ECF 13-2 at 3, ¶ 12; ECF 13-17 (transcript of testimony at revocation hearing). Partlow's supervising agent recommended that Partlow be released to probation supervision and noted that he was facing another 13-year sentence if he was convicted on the new assault charge. ECF 13-17 at 2. Keckler explained to Partlow that his parole supervision would be continued and he would be released from confinement and required to report to his parole agent. Id. at 3. After Partlow addressed Keckler, explaining the number of programs he had completed while confined and his compliance with reporting to his parole agent, and noting that he had already been confined for seven months, Keckler changed the disposition of the case and closed out Partlow's parole supervision. Id. at 4-5. Partlow was released from custody on the same date of his hearing, ECF 13-2 at 3, ¶ 16.

         Standard ...