United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
Plaintiff Timothy D. Sheppard alleges in his Complaint filed
pursuant to 42 U.S.C. §1983 that he was unlawfully
removed from his prison job and his security
classification was changed. Defendants, Lt. Hance Pepper
and Assistant Warden Walter West filed a Motion to Dismiss or
for Summary Judgment in Response to the Complaint with
verified exhibits. ECF 10, ECF 10-1, ECF 10-2. Sheppard filed
a motion titled "Motion Requesting the Denial of the
Defendants' Motion for Summary Judgment." ECF 14.
Defendants filed a Response to Sheppard's motion. ECF 15.
After reviewing the submissions, this Court determines no
hearing is necessary. See Local Rule 105.6 (D. Md.
2018). For the reasons stated below, Defendants' Motion
is GRANTED. Plaintiffs Motion is DENIED.
Complaint, Sheppard claims his rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendment were violated when he was
reclassified and lost his prison job before he was charged
with prison rule violations. As redress he seeks $25, 000 in
damages, return to his prison job, back pay, award of any
lost diminution credits, and an order to change "the
process that you can't be reclassified until convicted of
a ticket and not before." ECF 1 at 4. Notably, Sheppard
does not allege, nor are there facts in the record to show
that Pepper was involved in the loss of Sheppard's prison
job or reclassification.
only facts Sheppard alleges against Pepper concern his
investigation and issuance of the Notice of Rule Violation
and are summarized as follows. On June 21, 2018, Sheppard,
who is incarcerated at Eastern Correction Institution
("ECI"), failed to report for his job at Maryland
Correctional Enterprises ("MCE"). On that day a
total of twenty-four inmates assigned to ECI's West MCE
workshop did not report for work. ECF 10-2 at 2. Pepper
investigated the absences. Sheppard claims Pepper was acting
on a "direct order" from Assistant Warden West. ECF
1 at 4. Pepper interviewed all twenty-four inmates and they
provided written statements. Id. at 9-32, Based on
this information, Pepper concluded the inmates had
orchestrated a planned work stoppage in response to a change
in the recreation schedule. Id. at 2.
Pepper concluded that twenty-three of the twenty-four inmates
did not provide a valid reason to take off from work on June
21, 2018. Id. at 29-32. Ten inmates, including
Sheppard, stated they missed work because they were sick.
Pepper found none of the ten had submitted a sick call slip.
Id. at 4, 7, 8. Thirteen inmates missed work to make
phone calls, for recreation time, or because they get three
unexcused absences each month. Id. One inmate took
off from work to celebrate the summer solstice, a religious
holiday for Native Americans. Id.
McGarity, plant manager of MCE West, states that "in 28
years I have never known that many inmates taking off sick on
the same day. Before the end of the day we had heard that it
was thought to be a protest, some even admitted it. ECF 10-2
at 4, 5. Only one inmate, Patrick O'Neill, received
permission to take off time; he wanted to call to his lawyer.
Id. Inmate Knight stated he took off because his
recreation was taken away and MCE workers want to stand
together for their recreation time. Id. at 10.
Inmate Eric Jones admitted that he chose not to go to work
because he wanted the opportunity to speak up and represent
the MCE workers. Id. at 11.
did not report for work because he had a headache which he
blamed on his high blood pressure. Id. at 17, 51.
Sheppard later took his medication and the pressure was
"okay" but "not up to par." Id.
It was noted that Sheppard was one of several inmates seen in
the recreation yard after he said he was sick. Id.
8, 2018, Pepper issued a Notice of Rule Violation to Sheppard
for violating Rule 402(c) (absence from or late reporting to
an assigned location without authorization) and Rule 403(a)
(providing false information). ECF 10-2 at 40, 47-48.
Sheppard pleaded not guilty to both charges at his August 6,
2018 disciplinary hearing. He denied participating in the
planned work stoppage and asserted that he had in fact filed
a sick call slip on June 21, 2018, to be seen for
hypertension. Sheppard introduced into evidence a copy of his
sick call slip dated June 21, 2018. Id. at 41, 42,
43, 46. Sheppard asserted "Michelle" had picked up
his sick call slip. Officer Muncie, the institutional
representative, stated sick call slips are gathered daily and
date stamped when received. Hearing Officer Stephen Mack
noted that Sheppard's sick call slip was date-stamped
"five days later." Id. Nurse M. Richbark,
whom Sheppard called as a witness, testified that Sheppard
came for chronic care treatment and turned in a sick call slip.
Richarbark said "[t]hey put their own date on it and we
stamp it as soon as we receive them." Id. at
hearing officer did not find Sheppard's assertions
credible. Id. at 44. Sheppard was found guilty of
both rule violations and received a reprimand for violating
Rule 402. Id. at 34, 36, 38, 44, 45. Of
import, no diminution credits were revoked. Id. at
45. On August 19, 2018, Sheppard appealed the hearing
officer's decision and it was denied on August 22, 2018,
by Warden Ricky Foxwell. Id. at 35.
June 21, 2018, Sheppard was given a job in the Dietary
Department and then reassigned to Special Housing Sanitation.
Id. at 1, 52. Because of a subsequent disciplinary
infraction,  he was removed from the Special Housing
Sanitation job on January 20, 2019. Decl. of William Bailey,
Acting Correctional Case Management Manager, ECF 10-2
Motion to Dismiss
reviewing the complaint in light of a Motion to Dismiss
pursuant to Fed. R. Civ. Proc. 12(b)(6) the Court accepts all
well-pleaded allegations of the complaint as true and
construes the facts and reasonable inferences derived
therefrom in the light most favorable to the plaintiff.
Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420
(4th Cir. 2005) (citing Mylan labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); Ibarra
v. United States, 120 F.3d 472, 473 (4th Cir. 1997).
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires
only a "short and plain statement of the claim showing
that the pleader is entitled to relief." Migdal v.
Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325-26
(4th Cir. 2001); see also Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 513 (2002) (stating that a complaint
need only satisfy the "simplified pleading
standard" of Rule 8(a)).
"plaintiffs obligation to provide the
"grounds" of his "entitlement to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." Bell All. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal citations omitted). Nonetheless, the
complaint does not need "detailed factual
allegations" to survive a motion to dismiss.
Id. at 555. Instead, "once a claim has been
stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint."
Id. at 563. To survive a motion to dismiss, "a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 677-78 (2009) (quoting Twombly, 550 U.S. at
570). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at
678. "But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged - but it has not 'show[n]'
- 'that the pleader is entitled to relief"
Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
Court is mindful of its obligation to liberally construe the
pleadings of pro se litigants. See Erickson v.
Pardus,551 U.S. 89, 94 (2007). Nonetheless, liberal
construction does not mean that this Court can ignore a clear
failure in the pleading to allege facts which set forth a
cognizable claim, Wetter v. Dep't of Soc.
Servs.,901 F.2d 387, 391 (4th Cir. 1990), or
"conjure up ...