Alton v. Maryland Dept. of Public Safety and Correctional Services et al

Filing 53

MEMORANDUM. Signed by Judge William M Nickerson on 8/15/11. (jmk, Deputy Clerk)(c/m 8/15/11)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WILLIAM E. ALTON

:

Plaintiff

:

v

:

MARYLAND DEPT OF PUBLIC SAFETY
AND CORRECTIONAL SERVICES, et al.

:

Defendants

Civil Action No. WMN-09-1311

:
o0o
MEMORANDUM

The case was dismissed based upon the claims raised by Plaintiff in the amended
complaint.1 ECF No. 21 and 22. The case was remanded to this court by the Fourth Circuit
Court of Appeals for consideration of the claims raised by Plaintiff in his initial complaint.
Defendants filed a Motion for Summary Judgment. ECF No. 47. Plaintiff opposes the motion.
ECF No. 52. This matter is ripe for this Court’s dispositive review. Upon review of the papers
filed, the Court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2011).
For the reasons set for the below, the Court will grant Defendants’ Motion for Summary
Judgment.
Background
Plaintiff’s Allegations
In the initial complaint Plaintiff states that each time he sought to exercise his First
Amendment rights he was subjected to retaliatory actions by staff. On June 11, 2008, he was
transferred from Eastern Correctional Institution (ECI) as a form of retaliation by correctional
officials for his May 24, 2008 filing of an internal investigations complaint against Officer
Jeffrey Kessler. ECF No. 1 at p. 5. Plaintiff states the transfer took place less than one month
1

The amended complaint concerned a claim that Plaintiff had been wrongfully deprived of his property. ECF No.
18.

after he filed a complaint in this Court naming Kessler as a Defendant. See Alton v. Mathis, et
al., Civil Action AW-07-1499 (D. Md.). In the previously-filed action Plaintiff sought to file
criminal charges against Kessler for writing perjured statements and attempting to subject
Plaintiff to punitive segregation as well as corporal punishment.2 ECF No. 1 at p. 5. He states
he attempted to establish a pattern of harassment and personal abuse; and offered that ECI was
the subject of a class action suit involving Plaintiff and several other prisoners. See Spivey, et al.
v. Maryland Dept of Correction, et al., Civil Action L-01-938 (D. Md.).3 He claims once he
arrived at ECI he was subjected to harassment and personal abuse by hostile aggressive officers,
some of whom were named in administrative complaints and others who were named in yet
another civil action. See Alton v. Socks, et al., Civil Action AW-98-2761 (D. Md).4 Plaintiff
claims he was swapped with another inmate who had filed intermal complaints and he was
placed in a housing unit designated for combative or problematic inmates.
Plaintiff, who suffers from paralysis and has limited ambulatory capacity, asserts he was
housed far away from activities and services offered at ECI including medical services, religious
programs, the law library, and the dining hall. Plaintiff further claims he was placed on
commissary spending restrictions, capping the amount he could spend to $35. ECF No. 1 at p. 6.
He states he suffered a significant set-back because he was denied immediate access to a work
assignment for which he would earn ten days a month in diminution credits, despite the fact he
had been infraction free for years.
On November 19, 2008, Plaintiff filed an administrative remedy procedure complaint
2

The referenced case raised allegations that Plaintiff was denied doses of Flexeril (a muscle relaxant) because he
was barred from the medical unit when wearing sweat pants. The complaint named 42 Defendants including
correctional and medical staff. Id.

3

Plaintiff signed a stipulation of dismissal in this case on June 14, 2004. See Spivey, Civ. Action L-01-938 at Docket
No. 65.
4

This civil action named 38 defendants.

2

(ARP) against Officer F. Wilhelm because he denied Plaintiff a shower after returning from a
work assignment and because Wilhelm used provocative language. On November 21, 2008,
Plaintiff was interviewed by Internal Investigation Unit (IIU) Agent Wills regarding his claim
against Kessler. Wills asked Plaintiff if harassment had continued after his transfer from ECI,
and Plaintiff stated he was unsure, but still wished to pursue criminal charges against Kessler for
perjury and filing a false report. ECF No. 1 at pp. 6 – 7.
On December 15, 2008, Plaintiff was interviewed by Lt. Whiteside about the complaint
he filed against Wilhelm. Plaintiff claims Whiteside used threats and intimidation to try to
coerce him into dropping the complaint against Wilhelm. Whiteside raised his voice and kicked
a chair and a door in an attempt to intimidate him. Plaintiff alleges Whiteside told him he
needed to dismiss the complaint because he was leaving for several weeks and didn’t have time
to investigate the claim. Whiteside then told Plaintiff if he didn’t “sign off” on the ARP against
Wilhelm, he should not expect Whiteside to help him in the future. ECF No. 1 at p. 7.
On December 20, 2008, after Plaintiff was cleared to leave his work assignment and
returned to his housing unit, Wilhelm and Officer Robertson retaliated against him by subjecting
him to an unusual and “illegal pat down/ frisk search.” Plaintiff claims the search took place
absent probable cause, without a supervisor present, and in a secluded area away from most
surveillance cameras. Plaintiff states the search was done in an attempt to intimidate and harass
him. During the search Wilhelm made references to the ARP plaintiff had filed on November
19, 2008, and asked him why he had filed it. Plaintiff claims Wilhelm repeatedly groped his
testicles and pushed his fingers into Plaintiff’s rectal area while his pants were still on. Plaintiff
claims that Wilhelm retrieved a broken piece of a pair of eyeglasses from his glove and claimed
he had found it in Plaintiff’s wheelchair. Wilhelm accused Plaintiff of being in possession of a

3

weapon. Plaintiff was handcuffed and placed on administrative segregation status pending a
disciplinary adjustment hearing. ECF No. 1 at p. 8.
On January 5, 2011, Plaintiff was given a disciplinary hearing. He claims he was denied
his rights to call witnesses and punished with a segregation sentence of 365 days, loss of visits
and loss of good conduct credits. He states the warden’s office reduced the segregation time to
200 days, but left the other sanctions intact. Plaintiff states that the adjustment proceedings were
punitive in nature because the sanctions were unduly harsh and the Warden failed to correct the
errors made by the hearing officer. Plaintiff states that the errors included the date of the actual
incident being noted as December 24, 2008. ECF No. 1 at p. 9.
Plaintiff alleges that even though he sent out letters and complaints to the Warden’s
office he never received a response to his request for assistance in filing criminal charges against
staff. On February 18, 2009, Plaintiff was interviewed by Sergeant Shaver who refused to
review the surveillance tapes for December 18 and 19, 2008, and also refused to interview
inmate witnesses. ECf No. 1 at p. 9.
As a result of being placed on administrative segregation, Plaintiff claims he was stripped
of all writing materials, personal property, clothing, a typewriter, and a television. He claims he
was also denied hygiene items, use of his crutches, and other walking aids, and his winter coat.
Plaintiff’s property was taken by officers on the 8 to 4 shifit and included Cabwater, Finalburg
and Eames. Plaintiff states that during the time his property was being inventoried he was
denied the opportunity to get dressed and was threatened with pepper spray. Plaintiff was
required to mail some of his legal papers home. ECF No. 1 at pp. 9 – 10.
On February 4, 2009, Plaintiff claims Officer Wilson conducted a second inventory
search of his property, collected all “segregation valuables” being stored, and threatened to

4

destroy them if Plaintiff did not provide an address where they could be mailed. Plaintiff was
given 30 days to provide the address. He asked if he could appeal the decision to remove the
property, but his request was denied. Plaintiff filed an ARP regarding the incident. Plaintiff
claims that Lt. McKenzie told him his property would be held in storage pending the resolution
of his ARP, or for 120 to 180 days.
On December 11, 2008, Plaintiff claims he was confronted by Officer Krause who asked
Plaintiff what was going on between him and the midnight shift officers. Krause said the
officers were claiming that Plaintiff was screaming about getting a shower. Krause told Plaintiff
if he did not stop the behavior he would get cell restriction or be moved out of the unit and that if
Plaintiff wanted to stay there, writing complaints was not the way to do it. Plaintiff states that
other officers warned him that he was being watched by officers in the main surveillance
operations center during dietary working hours. Plaintiff claims he was falsely accused of eating
extra food and loitering during work hours. ECF No. 1 at p. 7.
On March 9, 2009, Plaintiff states he was let out of his cell to take a shower and after five
minutes of showering, the water was turned off by Officer Wilson. Plaintiff asked to be allowed
to rinse off the soap, but Wilson denied the request and threatened Plaintiff with pepper spray.
Plaintiff claims Wilson approached him with three other officers and ordered Plaintiff to lock
into his cell. Plaintiff states he filed a complaint over the incident, but it was dismissed based on
the alleged perjured response of Officer McKenzie, the tier officer. ECF No. 1 at p. 10.
On March 16, 2009, Plaintiff claims Officers Beal, Wilson, and Boeman were authorized
by Lt. McKenzie to conduct a search of Plaintiff’s cell because they suspected he was helping
another inmate with legal matters.5 During the search Plaintiff alleges that his trial transcripts,
photos of family members and other legal materials were destroyed or damaged. Plaintiff states
5

During the search Plaintiff was found to be in possession of gambling paraphernalia. ECF No. 47 at Ex. 9.

5

that his prescribed medication was poured over the documents and photographs by Wilson and
Beal who also put handcuffs on Plaintiff extremely tight. Plaintiff also claims that the officers
taunted him about being convicted for second-degree assault on a former correctional officer in
the Hagerstown region. After Plaintiff’s cell was searched, a Notice of Infraction was written
and Plaintiff was threatened with transfer to even more restrictive conditions in segregation
housing unit 4. ECF No. 1 at p. 11.
On March 25, 2009, Plaintiff was moved to housing unit 4, a segregation area, during the
midnight shift. Plaintiff states he was once again stripped of all allowable property including
legal papers and property receipts. He claims he was denied access to writing materials, forcing
him to rely on supplies he could borrow from other prisoners. Plaintiff states this denial
deprived him of meaningful access to courts and prevented him from filing necessary pleadings
in a criminal appeal in the Circuit Court for Cecil County and the Maryland Court of Special
Appeals. Plaintiff further claims that his classification counselor’s refusal to make copies or to
respond to legal requests also contributed to depriving him of access to the courts. He states the
refusal to provide these materials to him “unnecessarily delayed” his litigation attempts in both
Inmate Grievance matters and Petitions for Judicial Review in the Circuit Court for Allegany
County. ECF No. 1 at p. 11.
Plaintiff states he is locked down in a cell for 23 to 24 hours a day, depending on whether
he is provided a shower. On March 31, 2009, Plaintiff claims that he was transferred to housing
unit 3 where “the abuse and retaliation has continued.” He states the transfer took place after he
filed several complaints about being denied showers, hygiene items, and recreation. While
housed in housing unit 3, Plaintff claims he was again denied meaningful access to the courts as
he was again required to rely on receiving writing materials from other inmates. In addition, he

6

claims all showers and recreational privileges were cut off.
Plaintiff admits that his legal papers and some hygiene items were returned to him on
May 1, 2009, but claims he was not given “appropriate ink pens,” writing paper, carbon paper, or
his typewriter. Id. He maintains that failure to provide these items infringes on his access to
courts. He explains that his typewriter is essential for him because of his disability which affects
his right arm. Plaintiff also claims he was denied access to the legal library and access to
“persons trained in law.” Id.
On December 19, 2008, Plaintiff alleges Sgt. Shaver retaliated against him by denying
him the right to practice his religion by refusing to allow him to take a shower before services.
Plaintiff claims the action was discriminatory because others were allowed to shower before
services. The ARP Plaintiff filed concerning the incident was dismissed by the Warden because
Plaintiff’s name had been removed from the religious services pass list. Plaintiff alleges the
Warden told the Commissioner of Correction that he had been removed from segregation status,
making his ARP complaint moot. ECF No. 1 at p. 13.
On February 18, 2009, Plaintiff asserts that Officer Shaver admitted to Plaintiff that he
should not have gotten such a long segregation sentence since the “alleged weapon [was] not
really a weapon and is often used by another prisoner to fix or repair broken appliances.” ECF
No. 1 at p. 12. Shaver also told Plaintiff that he did not have any constitutional rights. Id.
On May 10, 2009, the entire segregation unit was denied showers and recreation because
the administration locked the unit down after a fist fight broke out. Plaintiff states the lock down
was an excuse for officers to entertain themselves, sleep, or indulge in leisure activities. Plaintiff
states segregation inmates are locked down three days a week and, while they are supposed to
receive showers and recreation during those times, staff find ways to change the rules. ECF No.

7

1 at p. 13.
On May 14, 2009, Plaintiff alleges that Lt. McKenzie did not start segregation showers
for disabled inmates until 3:45 p.m., knowing it would interfere with recreation walks scheduled
to take place on the next shift. Plaintiff reminded McKenzie of this fact, but McKenzie
responded with apathy. Officer Miller and Sergeant Middleton then denied Plaintiff his
recreation walk and shower because Lt. McKenzie said he could only have one or the other.
ECF No. 1 at p. 13.
Plaintiff also claims the prison administration is attempting to force him to mail his
property home even though he has no funds to mail it. ECF No. 1 at p. 14. Plaintiff claims he is
harassed because he helped inmate Timothy Brockngton, who allegedly was beaten by
correctional officers McKenzie and Wilson. Plaintiff gave a verbal statement to the IIU
investigator on April 2, 2009. Plaintiff further alleges he and his wife were assaulted by several
correctional officers who filed false criminal charges charges against him in the Circuit Court for
Washington Count. On February 22, 2007, Plaintiff was assaulted, but he was charged with
second-degree assault. Plaintiff states he was convicted after two trials by a “bias jury.” He
states several correctional officers from both incidents are still employed at Western Correctional
Institution (WCI) and although the names of the staff involved were submitted to the
Commissioner, Plaintiff alleges nothing has been done to protect him from abuse. ECF No. 1 at
p. 14.
On April 24, 2009, Plaintiff was scheduled for a hearing in the Circuit Court for Cecil
County. On April 21 and 22, 2009, while Plaintiff was preparing for his court trip, correctional
staff and Correctional Medical Services (CMS) employees purposely delayed his transport to
court by confiscating auxiliary aids and medical equipment. Plaintiff asserts these actions against

8

him were taken because the personnel involved feared Plaintiff was pursuing litigation against
them. Plaintiff was asked if he was trying to sue the officers and asked for details involving the
Hagerstown incidents when Plaintiff was charged with criminal assault. Plaintiff claims staff
confiscated his back brace, hernia binder and crutches. He alleges the confiscation of these items
interfered with his ability to participate in recreation while on segregation. ECF No. 1 at p. 15.
Standard of Review
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 dispute will
defeat the motion:
By its very terms, this standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247-48 (1986) (emphasis in original).
AThe party opposing a properly supported motion for summary judgment >may not rest upon the
mere allegations or denials of [his] pleadings,= but rather must >set forth specific facts showing
that there is a genuine issue for trial.=@ Bouchat v. Baltimore Ravens Football Club, Inc., 346
F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court
should Aview the evidence in the light most favorable to....the nonmovant, and draw all
inferences in her favor without weighing the evidence or assessing the witness= credibility.@
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court
must, however, also abide by the Aaffirmative obligation of the trial judge to prevent factually
unsupported claims and defenses from proceeding to trial.@ Bouchat, 346 F.3d at 526 (internal
9

quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and
citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
Analysis
Retaliation and Harassment
A prisoner's claim that prison officials have retaliated against him for engaging in
protected conduct is grounded in the First Amendment. See Mount Healthy Bd. of Ed. v. Doyle,
429 U.S. 274, 287 (1977); Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir.1999) (en banc).
In order to prevail on a claim of retaliation, Plaintiff Amust allege either that the retaliatory act
was taken in response to the exercise of a constitutionally protected right or that the act itself
violated such a right.@ Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Three elements must be
established: 1) Plaintiff engaged in protected conduct; 2) an adverse action was taken against
Plaintiff that would deter a person of ordinary firmness from continuing to engage in that
conduct; and 3) Plaintiff’s protected conduct motivated at least in part the adverse action. See
Thaddeus-X, 175 F. 3d at 394; see also McDonald v. Hall, 610 F.2d 16, 18 (1st Cir.1979)
(Plaintiff must show that retaliation was the actual motivating factor).
In the prison context, Plaintiff must establish that the prison authorities' retaliatory action
did not advance legitimate goals of the correctional institution or was not narrowly tailored to
achieve such goals. See Rizzo v. Dawson, 778 F.2d 527, 532 & n. 4 (9th Cir. 1985). The
preservation of internal order and discipline is a legitimate goal. Id. at 532. If Plaintiff
establishes a prima facie case, the burden shifts to Defendants to demonstrate that they would
have reached the same decision in the absence of Plaintiff's constitutionally protected conduct.
See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). “In the prison
context, we treat [retaliation] claims with skepticism because ‘[e]very act of discipline by prison

10

officials is by definition ‘retaliatory’ in the sense that it responds directly to prisoner
misconduct.’” Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996), quoting Adams v. Rice, 40
F.3d 72,74 (4th Cir. 1994).
The alleged retaliatory conduct in the instant case include a transfer from a medium
security prison ro a maximum security prison and “exposure to wide spread abuse.” ECF No. 52
at p. 7. The allegation is that the transfers were prompted by Plaintiff’s filing of ARPs against
correctional officers and for his past participation in litigation concerning prison personnel. The
thrust of Plaintiff’s claim regarding the transfer is his assertion that he was “sent to a prison
known for a history of brutality, murder and retaliation by guards he had filed past complaints
against.” ECF No. 52 at p. 8. Included with Plaintiff’s Response in Opposition is a
memorandum prepared after an investigation was conducted into Plaintiff’s claims of harassment
and retaliation. Id. at p. 27. The memorandum, written by R.S. Roderick, states in part,
In your case there seems to be a pattern of claims that surround your
wishes to be transferred from the Western Region to the Central Region
in the Baltimore Metro area. The fact remains that while you are issued
a wheelchair through medical you are not eligible for any move. WCI is
the designated facility for someone in your circumstance making transfer
impossible.
As to your negative claims regarding legal access, property,
classification and the other various submissions; staff appears to be
addressing these matters within current governing regulations. The fact
that you do not agree with said findings does not mean that the issues
were decided upon wrongly. I see very clealy that you are intent on
filing matters until some sort of exasperation is reached with our
administration which will then secede (sic) to your underlying transfer
request. Again, I caution you that the designation of this facility and
your medical status will not allow for such a move.
Id. Plaintiff subsequently sent an inquiry to his classification counselor asking why promises
made to him to be transferred from ECI to the Central or Jessup regions were not kept. Id. at p.
28.
11

A transfer from one prison to another does not, by itself, impinge a constitutional right
even if promises were made with regard to the transfer. Other than Plaintiff’s repeated assertions
that he was transferred from ECI because of retaliatory reasons, there is no evidence supporting
such a claim. In fact it appears from the evidence submitted by Plaintiff that he requested the
transfer and simply became dissatisfied when he was not transferred to the prison he preferred.
There is no basis to conclude that the transfer was retaliatory.
With regard to “widespread abuse,” Plaintiff fails to establish a nexus between the way
he is treated by correctional staff and the exercise of a protected right. His assertion that he was
harassed by Sergeant Kestler, for example, was extensively investigated. ECF No. 47 at Ex. 13.
During the course of the investigation Plaintiff admitted to being involved in “horseplay” with
another inmate during which Kestler cited Plaintiff because he felt it was escalating. Id. at pp. 5
– 6. The investigation concluded that Kestler’s actions were within his authority and were in no
way excessive. To lend credence to Plaintiff’s retaliation claims without a proper foundation for
doing so would in essence insulate Plaintiff from any reprimand regardless of circumstances.
Simply put, Plaintiff cannot immunize himself from disciplinary measures through his
litigiousness.
Access to Courts
Prisoners have a constitutionally protected right of access to the courts. Bounds v. Smith,
430 U. S. 817, 821 (1977). However:
Bounds does not guarantee inmates the wherewithal to transform
themselves into litigating engines capable of filing everything from
shareholder derivative actions to slip-and-fall claims. The tools it
requires to be provided are those that the inmates need in order to
attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any
other litigating capacity is simply one of the incidental (and
perfectly constitutional) consequences of conviction and
12

incarceration.
Lewis v. Casey, 518 U. S. 343, 355 (1996).
AUltimately, a prisoner wishing to establish an unconstitutional burden on his right of
access to the courts must show >actual injury= to >the capability of bringing contemplated
challenges to sentences or conditions of confinement before the courts.= O=Dell v. Netherland,
112 F. 3d 773, 776 (4th Cir. 1997) quoting Lewis, 518 U.S. at 355. AThe requirement that an
inmate alleging a violation of Bounds must show actual injury derives ultimately from the
doctrine of standing, a constitutional principle that prevents courts of law from undertaking tasks
assigned to the political branches.@ Lewis v. Casey, 518 U.S. 343, 349 (1996).
Plaintiff alleges his cell was searched based on a suspicion that he was helping other
inmates with their legal cases on March 16, 2009. ECF No. 1 at p. 11. The search in question
resulted in discovery of gambling paraphernalia in Plaintiff’s possession. ECF No. 47 at Ex. 9.
Although Plaintiff claims legal papers were confiscated, he admits the papers were returned.
Plaintiff, however, insists that his access to courts was still encumbered because he did not have
access to “appropriate” ink pens, carbon paper, or a typewriter and because he was denied access
to the law library to conduct research on complex legal issues. ECF No. 1 at p. 11.
The only burden on the capacity to access the courts cited by Plaintiff in the Complaint is
that the litigation took longer than it should have taken. ECF No. 1, see also ECF No. 52 at pp.
12 – 14 (discussion of legal materials being removed without mention of specific injury).
Protracting litigation may serve as an inconvenience to all involved, but it is not injurious to
Plaintiff’s constitutional right to access the courts. Despite the alleged obstacles to Plaintiff’s
efforts to litigate his claims, he remained able to request extensions of time, thereby preserving
any legal rights raised in the pending litigation. Summary judgment shall be granted in favor of

13

Defendants on this claim.
Religion claim
Plaintiff claims violation of the Religious Land Use and Institutionalized Persons Act
(RLUIPA). ECF No. 52 at p. 7. The standard established by the Act provides in part that:
[n]o government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution ... even if the
burden results from a rule of general applicability, unless the government
demonstrates that imposition of the burden on that person-(1) is in
furtherance of a compelling government interest; and (2) is the least
restrictive means of furthering that compelling government interest.
42 U.S.C. § 2000cc-1(a) (2000). “RLUIPA does not give prisoners an unfettered right to
religious accommodation. Rather, the statute mandates ‘due deference to the experience and
expertise of prison and jail administrators.’” Lovelace v. Lee , 472 F.3d 174, 210 (4th Cir. 2006)
quoting Cutter v. Wilkinson, 544 U.S. 709, 723 (2005).
Plaintiff’s claim that he was denied the right to practice his religion is based on an
alleged refusal to allow him to “cleanse himself” in preparation for Jumah services. ECF No. 1
at p. 13; ECF No. 47 at Ex. 4, p. 1. He claims on December 19, 2008, he was denied a shower
before religious passes were called. He claims this denial deprived him of the opportunity to
attend services that day. ECF No. 47 at Ex. 4.6

There are no other allegations concerning a

denial of Plaintiff’s opportunity to practice his religion. A single instance of denying Plaintiff an
opportunity to take a shower is not a burden on his religious practice. There is no indication that
staff who denied Plaintiff’s shower knew it impacted on his ability to attend a religious service.
Plaintiff has failed to establish a First Amendment violation or a violation of the RLUIPA.

6

Plaintiff’s ARP regarding the incident was dismissed as moot because he was no longer in the same housing unit
and because his name was no longer on the pass list for Sunni services. The central issue of the ARP was the denial
of showers on this and another occasion, not the denial of his right to practice his religion. ECF No. 47 at Ex. 4, pp.
1 and 6.

14

Conditions Claim
Plaintiff asserts he was wrongfully placed on administrative segregation and deprived of
normal recreational privileges both on and off of segregation. ECF No. 52 at p. 7. Defendants
assert that there is no evidence that Plaintiff was harmed by the conditions alleged. ECF No. 47
at Ex. 2 – 13. Conditions which "deprive inmates of the minimal civilized measure of life's
necessities" may amount to cruel and unusual punishment. Rhodes v. Chapman, 452 U. S. 337,
347 (1981). However, conditions which are merely restrictive or even harsh "are part of the
penalty that criminal offenders pay for their offenses against society." Id.
In order to establish the imposition of cruel and unusual
punishment, a prisoner must prove two elements - that 'the
deprivation of [a] basic human need was objectively sufficiently
serious,' and that 'subjectively the officials acted with a sufficiently
culpable state of mind.'
Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (emphasis in original; citation omitted).
"[T]o withstand summary judgment on an Eighth Amendment challenge to prison
conditions a plaintiff must produce evidence of a serious or significant physical or emotional
injury resulting from the challenged conditions." Strickler v. Waters, 989 F.2d 1375, 1381 (4th
Cir.), cert. denied, 114 S. Ct. 393 (1993). It is important to note that Plaintiff is not claiming he
was denied exercise for long periods of time with resulting consequences or injuries. See e.g.
Mitchell v. Rice, 954 F. 2d 187, 191 – 92 (4th Cir. 1992) (long term total or near total deprivation
of exerecise without penologicial justification violates Eighth Amendment). Indeed, the
Complaint does not clearly state when and for how long the alleged deprivation of recreation and
showers took place.
Plaintiff states in his Complaint that he filed “additional complaints” about “being denied
showers, hygiene items, recreation, etc.” on March 31, 2009. ECF No. 1 at p. 11; see also ECF

15

No. 52 at p. 7 (“Deprivation of normal recreational privileges due to tier concept policy”). He
then states that on May 14, 2009, McKenzie “did not start segregation showers for the disabled
inmates until 3:45 p.m. knowing it would interfere with scheduled recreation walks.” Id. at p. 13.
Thus, it appears that Plaintiff was not completely deprived of recreation and showers during his
confinement to segregation. Defendants are entitled to summary judgment on this claim.
Search and Sexual Assault Claim
Plaintiff claims that during a pat down search he was subjected to sexual assault as well
as an unreasonable search in violation of the Fourth Amendment. ECF No. 52 at p. 7. Plaintiff
states that during the pat down search Wilhelm made references to a complaint Plaintiff filed on
November 19, 2008, repeatedly groped his testicles, and pushed his fingers into Plaintiff’s
rectum while he pants were still on. ECF No. 1 at p. 8. Wilhelm then retrieved a broken piece of
a pair of eyeglasses from Plaintiff’s wheelchair and charged him with possession of a weapon.
Plaintiff claims the weapon was planted by Wilhelm. Id.
First, Plaintiff’s Fourth Amendment claim must fail as the protections it offers are not
applicable to routine shakedown searches of prison cells. “[S]ociety is not prepared to recognize
as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell .
. . accordingly, the Fourth Amendment proscription against unreasonable searches does not apply
within the confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517, 526 (1984).
With respect to the alleged planting of a weapon, Plaintiff was provided with notice and
an opportunity to be heard regarding the charges against him. ECF No. 1 at p. 8. Prisoners are
entitled to certain due process protections when the loss of good conduct time is at stake. See
Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citing Morrissey v. Brewer, 408 U.S. 471, 488
(1972)). These include: (1) advance written notice of the charges against him; (2) a written

16

statement of the evidence relied on and the reasons for taking any disciplinary action; (3) a
hearing where he is afforded the right to call witnesses and present evidence when doing so is
not inconsistent with institutional safety and correctional concerns, and a written decision; (4) the
opportunity to have non-attorney representation when the inmate is illiterate or the disciplinary
hearing involves complex issues; and (5) an impartial decision-maker. See Wolff, 418 U.S. at
564-571. With respect to the quantum of evidence supporting guilt, so long as the disciplinary
haring decision is based on “some evidence” it surpasses constitutional muster. See
Superintendent, Mass. Correctional Institute v. Hill, 472 U.S. 445, 455 (1985). Federal courts
do not review the correctness of a disciplinary hearing officer's findings of fact. See Kelly v.
Cooper, 502 F.Supp. 1371, 1376 (E.D.Va.1980). The disciplinary decision in Plaintiff’s case
complies with the due process protections afforded and will remain undisturbed by this Court.
Although Plaintiff claims the adjustment hearing team was biased against him and
imposed an excessive punishment, he successfully appealed the sanction to the Warden who
reduced it from 365 days of segregation to 200 days. ECF No. 47 at Ex. 5. In the appeal of the
adjustment hearing officer’s decision, Plaintiff makes no mention of the alleged sexual assault
during the pat down search. Plaintiff’s claim of improper touching is also refuted by his
assertions that he was seated in his wheelchair. ECF No. 1 at p. 8. The Notice of Infraction
indicates that Plaintiff was asked to stand up for the search, but indicated he could not do so.
The search proceeded with Plaintiff still seated in his wheelchair. ECF No. 47 at Ex. 5, p. 12.
Plaintiff’s assertion that the officer inappropriately touched his rectal area during the
search is refuted by the record evidence. “When opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for summary

17

judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007) (videotape discredited plaintiff’s version
of the facts). Plaintiff’s claim that he was sexually assaulted is unsupported by any credible
evidence and appears to have been fabricated for purposes of bolstering his claims of retaliation.
Conclusion
Plaintiff has failed as the non-moving party to establish that there is a genuine issue for
trial. Even viewing the evidence in a light most favorable to Plaintiff, a genuine dispute of
material fact regarding any of the numerous constitutional claims raised is not present in the
record before this Court. Accordingly, for the reasons stated herein, Defendants’ Motion for
Summary Judgment will be granted in a separate Order which follows.
/s/
Aug. 15, 2011
Date

_______________________________
William M. Nickerson
United States District Judge

18