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Sheppard v. Pepper

United States District Court, D. Maryland

December 11, 2019




         Self-represented 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[1] 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.


         In his 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.

         The 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.[2]

         Specifically, 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.

         Dan 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.

         Sheppard 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. at 6.

         On July 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.[3] 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[4] 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 42-43.

         The 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.[5] 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.

         After 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, [6] 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 ¶3.


         I. Motion to Dismiss

         In 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)).

         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)).

         This 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 ...

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