Germain v. Shearin

Filing 3

MEMORANDUM filed. Signed by Judge J. Frederick Motz on 9/28/12. (c/m 9/28/12)(ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JEAN B. GERMAIN

*

Plaintiff

*

v

*

LT. D. L. SMITH, et al.

*

Defendants

Civil Action No. JFM-12-1274
(Consolidated Case JFM-12-1255)

*
***
MEMORANDUM

Plaintiff Jean B. Germain (“Germain”) filed the above-captioned civil rights case seeking
declaratory and injunctive relief. ECF Nos. 1, 5 and 7. This court ordered defendants to show
cause why the relief sought should not be granted. ECF No. 16. Defendants’ response to show
cause was construed as a motion for summary judgment. ECF No. 22. Germain opposes the
motion. ECF Nos. 24 and 28. 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 that follow, the
motion for summary judgment will be granted and judgment will be entered in favor of
defendants.
Background
Germain claims that on April 12, 2012, he was placed on administrative segregation on
the orders of Lt. P.H. Pennington, housing unit 2 manager. He states that when he arrived in
housing unit 1, Corporals Lambert and Ortit told him he would be moving to a double cell.
Germain told Lambert and Ortit that he could not be double celled, but the officers used force to
drag him into the cell. When Germain continued to refuse to go into the cell he was taken to
isolation cell where his clothing and property was confiscated; he was given an orange jumpsuit
and a mattress. Germain states that during his confinement to the isolation cell, he was denied

medical care for his injuries, denied access to sick call slips, and denied access to incoming and
outgoing mail.1 Germain remained in the isolation cell until April 16, 2012, when he was moved
to a regular cell. ECF No. 1 at pp. 3 – 4. In an amended complaint Germain states that his
shoulder “popped” when the officers forcibly cuffed him and, despite his continued requests, he
was not given medical attention for the injury. ECF No. 14 at pp. 6 and 7. He claims he asked
Corporal Conrad and Lt. Smith for medical attention, but neither did anything for him. Id. at p.
7.
On April 19, 2012, Germain states he handed two requests for Administrative Remedies
(ARPs) to Officer J. Farris. One ARP was a challenge to the conditions of the isolation cell and
the other sought emergency medical care because he had not been seen after submitting three
sick call slips. Later the same day, Germain gave Farris an envelope containing his postconviction petition, two grievances, and a motion for temporary restraining order for purposes of
mailing the documents to the Circuit Court for Allegany County. Germain claims his legal
papers were confiscated and that Farris told him the following day that Lt. D.L. Smith was
holding his papers. ECF No. 1 at pp. 4 – 5.
Germain adds that on April 13, 2012, he was told he was being placed on administrative
segregation pending an investigation into allegations that he was trafficking in drugs and
unauthorized digital video discs. ECF No. 7 at p. 2. He claims the stated reason was a pretext
and he was actually singled out for purposes of retaliating against him for the numerous legal
actions he has filed. Id. at p. 3. Additionally, Germain claims that on April 13, 2012, Officer
Grubb discharged a chemical weapon into the cell of another inmate who was housed “adjacent”

1

In an amended complaint Germain admits he was given a towel, a wash cloth, hygiene items and a brown bag
lunch on the day he was put into the isolation cell. ECF No. 14 at p. 7.

2

to him. He states that due to poor ventilation, he suffered the effects of the chemical agent for 10
to 15 minutes and defendants refused to evacuate him from his cell. ECF No. 4 at p. 2.
On April 24, 2012, Germain was seen by Dr. Ottey for “joint pains” and was prescribed
pain medication as well as an order to be cuffed in front. Dr. Ottey also scheduled Germain for
an x-ray. Despite the medical order, Germain claims that on April 26, 2012, Farris cuffed his
hands from behind and escorted him to Western Correctional Institution (WCI) for his x-ray.
Germain was cuffed in this manner for approximately 40 minutes, causing aggravation of his
shoulder injury. ECF No. 14 at pp. 10 – 11.
Germain claims that the retaliation against him is based on his successful challenge to of
prison disciplinary offense before the Inmate Grievance Office (IGO).

He claims that on

November 23, 2010, Hearing Officer John Sandstrom found him guilty of an infraction. At a
subsequent IGO hearing, the Administrative Law Judge “rebuked” Sandstrom for being biased
against Germain and reversed the adjustment conviction. At a subsequent hearing,2 Sandstrom
refused to accept Germain’s evidence and Germain moved for dismissal of the charges.3
Germain attempted to argue that he had a single cell assignment, but Sandstrom would not
consider it as evidence.

As a result Sandstrom found Germain guilty of the charges and

sanctioned him with 30 days of segregation. ECF No. 14 at pp. 11 – 12.
Defendants assert that Germain is permitted to access his legal materials and may keep
1.5 cubic feet of paperwork in his cell, with any excess property kept in the housing unit property
room. An inmate may exchange materials from his cell with any materials kept in the property
room. Defendants state that Germain has not been denied the ability to make legal copies and
note that he has filed fifteen different documents in this case since his placement in Housing Unit
2

The court presumes the subsequent hearing is unrelated to the matter overturned by the IGO.

3

Germain does not include a description of the offense with which he was charged.

3

1. Additionally, defendants note that during the same time frame, Germain has filed three ARP
complaints. ECF No. 21 at Ex. 1 – 4. The three ARPs concerned an allegation that corrupt
officers were cancelling library for no reason; that the medical department improperly claimed
he refused to show on April 30, 2012; and that he was not allowed to enjoy play station while on
administrative segregation. Id. at Ex. 7, p. 3.
With respect to Germain’s claim about denial of medical care, defendants state that he
was seen by a nurse on April 11, 2012, who indicated there was no problem with moving
Germain to segregation. ECF No. 21 at Ex. 8, p. 1. Additionally, Germain was seen on April
19, 2012, in response to a sick call slip he submitted complaining that he had a cold and that
during a use of force he threw himself on the floor and hurt his knees, neck and shoulder. Id. at
p. 4. Upon examination Germain’s gait was noted to be within normal limits and no swelling,
redness, or other marks were seen on his shoulder, elbow or knees. Id. An x-ray of Germain’s
shoulder revealed no significant abnormalities. Id. at p. 6. Germain was seen several times
afterwards. Id. at pp. 9, 11, 12, 14, 15, 18, 21 and 22.
Defendants assert there was no use of force involved when Germain refused to accept
housing in a double cell on April 10, 2012. ECF No. 21 at Ex. 9. Officer Lambert states that
Germain threw himself to the floor, hurting his knees, neck and shoulder and admitted to doing
so. Id. and Ex. 8, p. 4. Germain was given an institutional infraction for his refusal to accept
housing and was placed in a temporary cell. Id. at Ex. 10. Despite his assertions otherwise,
Germain was not on single cell status at the time of his refusal and he was found guilty of the
infractions charged. Id. at Ex. 10.
Germain was assigned to administrative segregation because there was reason to believe
he presented a danger to the security of the institution. ECF No. 21 at Ex. 16. Lt. Pennington

4

claims there was information indicating that Germain was trafficking in drugs and DVDs while
assigned to Housing Unit 2. Id. at Ex. 17 and 18. During the investigation into the allegations,
Germain was assigned to administrative segregation with periodic reviews of his assignment.
Id. at Ex. 20.
Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure 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.” Fed. R. Civ. P. 56(a). The Supreme
Court has clarified that this does not mean that any factual dispute will defeat the motion. ABy 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).
AA 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, 522 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)).
The court must Aview the evidence in the light most favorable to . . . the nonmovant, and draw all
reasonable inferences in her favor without weighing the evidence or assessing the witnesses=
credibility,@ Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but
the court also must 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

5

quotations 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
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
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).
Germain’s claim that he was kept from communicating with the court during his
confinement to the isolation cell is belied by the record in this and other cases pending in this
court during the relevant time frame. Even if during the six days he was confined, Germain was
unable to mail documents out of the prison or receive incoming mail, he has failed to establish an

6

actual injury resulting from that inability. See ECF No. 24 at p. 4. Germain admits he received
his mail after he was moved out of the isolation cell. Id. While the interference by prison
officials with certain types of mail may state a constitutional claim, occasional incidents of delay
or non-delivery of mail do not rise to a constitutional level. See Gardner v. Howard, 109 F.3d
427, 430-31 (8th Cir. 1997); Smith v. Mashner, 899 F.2d 940, 944 (10th Cir. 1990). Absent any
assertion by Germain that he suffered an actual injury (such as a missed legal deadline) as a
result of his outgoing letter being confiscated, his complaint simply does not state a claim upon
which relief may be granted.
Germain asserts that his inability to file an ARP prohibits him from accessing the courts
regarding the matters asserted in the ARPs. ECF No. 24 at p. 2 and ECF No. 28 at pp. 13 – 14.
He further claims that “prison guards have a constitutional duty to assist prisoners to file nonfrivolous claim (sic).” ECF No. 28 at p. 14. Germain neglects to state the subject matter of the
ARPs that were allegedly confiscated. Thus, it is impossible to discern whether he was deprived
of an opportunity to raise a meritorious claim concerning the conditions of his confinement.
Additionally, Germain provides no statement regarding the state claim he intended to file in state
court after exhausting administrative remedies,4 nor has he established that he has been barred
from bringing a meritorious claim in state court as a result of the alleged destruction of his ARPs.
Likewise, his claim regarding delays in returning legal copies to him does not establish an actual
injury. ECF No. 28 at p. 16. Absent evidence of an actual injury, Germain is asking this court to
engage in hypothetical analysis of a potential claim that might arise if the requisite facts were
established. This court may not engage in such analysis.

4

Germain attaches two orders from the Circuit Court for Baltimore City dismissing two different cases he filed.
ECF No. 24 at Ex. 8 and 9. There is no indication regarding the basis for the dismissal and it cannot be discerned
whether the alleged refusal to process Germain’s ARPs played any role in the dismissal of his claims.

7

Retaliation
To make out a prima facie case of retaliation, plaintiff has the burden of showing that
retaliation for the exercise of protected conduct was the “substantial” or “motivating” factor
behind the conduct of Defendants. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977).

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 constitutes a legitimate goal of the
correctional institution. Id. at 532. After plaintiff makes a prima facie showing, the burden shifts
to defendants to demonstrate that they would have reached the same decision even in the absence
of plaintiff's constitutionally protected conduct. Mt. Healthy, 429 U.S. at 287.
Germain asserts he was assigned to administrative segregation as retaliation for
successfully challenging a prison disciplinary matter. ECF No. 14 at pp. 11 – 12. He further
claims that the reasons provided for his assignment did not appear to be true since his property
was not searched with drug-detecting dogs, he was not drug tested, and his property was not xrayed. ECF No. 24 at p. 2. Defendants assert that information was received that Germain was
involved in trafficking DVDs and drugs in housing unit 2. ECF No. 21 at Ex. 18. There is no
indication regarding how Germain was alleged to be involved in the trafficking. How prison
officials choose to investigate matters pertaining to internal security of the prison is simply not a
matter for this court to second-guess. The failure to perform specific searches or tests in light of
the allegations against Germain does not establish that his assignment to administrative
segregation was pretextual and Germain has failed to demonstrate that his assignment did not

8

promote the internal security of the prison. See Rizzo, 778 F. 2d at 532. The claim, therefore,
fails.
Medical Care
The Eighth Amendment prohibits Aunnecessary and wanton infliction of pain@ by virtue
of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173
(1976). AScrutiny under the Eighth Amendment is not limited to those punishments authorized
by statute and imposed by a criminal judgment.@ De=Lonta v. Angelone, 330 F. 3d 630, 633 (4th
Cir. 2003) citing Wilson v. Seiter, 501 U.S.294, 297 (1991).

In order to state an Eighth

Amendment claim for denial of medical care, a plaintiff must demonstrate that the actions of the
defendants or their failure to act amounted to deliberate indifference to a serious medical need.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference to a serious medical
need requires proof that, objectively, the prisoner plaintiff was suffering from a serious medical
need and that, subjectively, the prison staff were aware of the need for medical attention but
failed to either provide it or ensure the needed care was available. Farmer v. Brennan, 511 U.S.
825, 837 (1994).
Germain asserts that prison staff were aware of his injuries. ECF No. 28 at pp. 3 -4 . He
does not state how, other than the requests he made to be seen by medical providers, his injuries
would have been obvious to the officers who observed him. The medical records submitted by
defendants do not depict injuries that are so severe or obvious that a lay person would conclude
that medical care was needed. Rather, the records establish that Germain did not suffer an injury
to his shoulder and, to the extent he experienced pain, it was treated with Extra Strength Tylenol.
There was no objectively serious medical condition at issue in this case.

9

Germain’s claim that he was cuffed in front for forty minutes contrary to a medical order
stating he should be cuffed from behind, also does not state a claim. It is clear the cuff-in-front
order was issued on April 24, 2012, but it does not appear to have been sent to the housing unit
until April 28, 2012. ECF No. 21 at Ex. 8 at p. 12. When Germain was taken for an x-ray of his
shoulder on April 26, 2012, he was cuffed from behind, but there is no evidence that the
violation of the medical order was deliberate. In fact, there is evidence that prison officials were
unaware of the medical order. Defendants are entitled to summary judgment on this claim.
Conditions of Confinement
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).
“These requirements spring from the text of the amendment itself; absent intentionality, a
condition imposed on an inmate cannot properly be called “punishment,” and absent severity,
such punishment cannot be called “cruel and unusual.” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir.
2008) citing Wilson v. Seiter, 501 U.S. 294, 298-300 (1991).
To establish a sufficiently culpable state of mind, there must be evidence that a known
excessive risk of harm to the inmate’s health or safety was disregarded. See Wilson, 501 U. S. at
298. In other words, “the test is whether the guards know the plaintiff inmate faces a serious

10

danger to his safety and they could avert the danger easily yet they fail to do so.” Brown v. North
Carolina Dept. of Corrections, 612 F.3d 720, 723 (4th Cir. 2010), quoting Case v. Ahitow, 301
F.3d 605, 607 (7th Cir.2002). Conduct is not actionable under the Eighth Amendment unless it
transgresses bright lines of clearly-established pre-existing law. See Maciariello v. Sumner, 973
F. 2d 295, 298 (4th Cir. 1992).
The objective prong of a conditions claim requires proof of an injury. "[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.1993). “Only extreme
deprivations are adequate to satisfy the objective component of an Eighth Amendment claim
regarding conditions of confinement.” De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir.2003).
Demonstration of an extreme deprivation proscribed by the Eighth Amendment requires proof of
a serious or significant physical or emotional injury resulting from the challenged conditions.
See Odom v. South Carolina Dept. of Corrections, 349 F. 3d 765, 770 (4th Cir. 2003).
In the instant case there was no bright line crossed by defendants in placing Germain in
an isolation cell after he refused to share a cell with another inmate. The conditions as described
by Germain were not so severe that defendants could be charged with “fair warning that their
conduct was unconstitutional.” Ridpath v. Bd. of Governors Marshall Univ., 447 F. 3d 2929,
313 (4th Cir. 2006). Germain admits he was provided clothing (a jumpsuit), a mattress, hygiene
items, a towel and wash cloth, as well as a bagged meal.5 To the extent he was not allowed to
access all of his property or the meal was not to his liking, such discomforts are not a basis for an
Eighth Amendment violation. The discomforts experienced by Germain in the isolation cell were

5

Germain alleges in his opposition that he was deprived of sheets, a blanket and clothing. ECF No. 28 at p. 12. He
admits otherwise in his earlier statements to this court. ECF No. 1 and 14.

11

restrictive and harsh, but did not impose cruel and unusual punishment on plaintiff. This
conclusion is supported by the absence of proof of significant, serious physical or psychological
injury resulting from Germain’s temporary, six-day stay in the isolation cell. Defendants are
entitled to summary judgment on this claim.
Excessive Force
Whether force used by prison officials was excessive is determined by inquiring if Aforce
was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.@ Hudson v. McMillian, 503 U. S. 1, 6-7 (1992). This court must look
at the need for application of force; the relationship between that need and the amount of force
applied; the extent of the injury inflicted; the extent of the threat to the safety of staff and inmates
as reasonably perceived by prison officials; and any efforts made to temper the severity of the
response. Whitley v. Albers, 475 U. S. 312, 321 (1986). The absence of significant injury alone
is not dispositive of a claim of excessive force. Wilkens v. Gaddy, __ U.S. __, 130 S. Ct. 1175
(2010). The extent of injury incurred is one factor indicative of whether or not the force used
was necessary in a particular situation, but if force is applied maliciously and sadistically liability
is not avoided simply because the prisoner had the good fortune to escape serious harm. Id.
Germain claims that force was used against him when he was placed in the isolation cell.
ECF No. 1 and 14. Defendants deny using force against Germain when they placed him in the
cell on April 10, 2012. ECF No. 21. As established by the medical records submitted, he
suffered no significant injury. Also established by the record, Germain was refusing a housing
assignment on the false basis that he was only supposed to be housed in a single cell. ECF No.
21 at Ex. 10. Germain’s refusal is a disruption in the security of the institution justifying some

12

use of force. Placing him in restraints and confining him to a cell was the minimal force required
to restore discipline.
Germain also claims he was improperly exposed to the effects of mace or pepper spray
when another inmate, Kevin Mosby, was maced. Mosby had damaged the fire suppression
system in his assigned cell and was being escorted to housing unit 1, cell C-30, when he became
aggressive toward Officer Grubb. Mosby attempted to grab Grubb through the open slot of the
cell and Grubb deployed a chemical agent through the open slot in an attempt to stop the assault.
Grubb states that Germain was not involved in the incident and he offered no complaints or
comments indicating that he was suffering ill-effects of the chemical agent. ECF No. 21 at Ex.
14. The incident occurred on April 13, 2012, when Germain was assigned to the isolation cell
which he did not share with Mosby. Id. at Ex. 15. There is no evidence that Germain complained
about being exposed to pepper spray or that any of the defendants knew he needed assistance.
Without some evidence of intentional conduct by defendants, there is no basis for an Eighth
Amendment claim.
Having found no basis for a constitutional claim, this court concludes that Germain is not
entitled to the relief sought and that judgment should be entered in favor of defendants. A
separate order follows.

__September 28, 2012__
Date

__/s/____________________________
J. Frederick Motz
United States District Judge

13