Montague, Jr. v. Llewellyn et al

Filing 3

MEMORANDUM. Signed by Judge Ellen L. Hollander on 6/6/13. (c/m af 6/7/13)(amf, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN MONTAGUE, JR.

*

Plaintiff

*

v

*

JAMES LLEWELLYN,
ANGELA I. PLATTER,
FREDERICK JAMES NASTRI, and
RICHARD J. GRAHAM

*

Civil Action No.ELH-13-1619

*
*

Defendants
***
MEMORANDUM
The above-captioned case was filed on June 4, 2013, together with a motion to proceed in
forma pauperis. Because plaintiff appears to be indigent, his motion shall be granted.
Plaintiff, an inmate incarcerated at North Branch Correctional Institution (“NBCI”),
raises two claims. First, he claims violations of his Fifth and Fourteenth Amendment rights in
the context of a prison disciplinary hearing wherein he was denied a request to call a witness and
to have video surveillance reviewed. ECF 1 at p. 4. Plaintiff was found guilty at the hearing and
as a result was penalized with cell restriction and temporary loss of visitation. Id. Plaintiff’s
second claim alleges acts of retaliation by Lt. James Llewellyn and Officer Richard Graham.1
Plaintiff states he has written numerous administrative remedy procedure requests (“ARPs”) and
has been involved in numerous verbal altercations with officers as a result. Additionally, he
claims he was charged with a disciplinary violation, moved to a different housing unit, and
placed on a special needs diet because of his disagreements with Graham.

1

Defendant Angela Platter is mentioned in the context of this claim, but no wrongdoing
is attributed to her. ECF 1 at p. 5.

This court is obliged by 28 U.S.C. '1915A to screen prisoner complaints and dismiss any
complaint that is frivolous, malicious, or fails to state a claim upon which relief may be granted.
In deciding whether a complaint is frivolous A[t]he district court need not look beyond the
complaint's allegations . . . . It must, however, hold the pro se complaint to less stringent
standards than pleadings drafted by attorneys and must read the complaint liberally.@ White v.
White, 886 F. 2d 721, 722-723 (4th Cir. 1989).
Prisoners retain rights under the Due Process Clause, but prison disciplinary proceedings
are not part of a criminal prosecution and the full array of rights due a defendant in such
proceedings does not apply.

See Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citing

Morrissey v. Brewer, 408 U.S. 471, 488 (1972)). In prison disciplinary proceedings where an
inmate faces the possible loss of diminution credits, he is entitled to certain due process
protections. These include: (1) advance written notice of the charges against him; (2) a written
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.
In the instant case no liberty interest is implicated because the penalty imposed on
plaintiff did not include a loss of diminution of confinement credits. Moreover, in prison
disciplinary proceedings, there is no constitutional right to confront and cross-examine witnesses
or to retain and be appointed counsel. See Baxter v. Palmigiano, 425 U.S. 308, 322 (1976);
Brown v. Braxton, 373 F.3d 501, 505-06 (4th Cir.2004). As long as the hearing officer's decision

2

contains a written statement of the evidence relied upon, due process is satisfied. See Baxter,
425 U.S. at 323 n. 5.
Moreover, substantive due process is satisfied if the disciplinary hearing decision was
based upon “some evidence,” Superintendent, Mass. Correctional Institute v. Hill, 472 U.S. 445,
455 (1985), and 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 findings will
only be disturbed when unsupported by any evidence, or when wholly arbitrary and capricious.
See Hill, 472 U.S. at 456; see also Baker v. Lyles, 904 F.2d 925, 933 (4th Cir.1990). As long as
there is some evidence in the record to support a disciplinary committee's factual findings, a
federal court will not review their accuracy. Thus, to the extent plaintiff seeks review of
defendant Nastri’s decision finding him guilty of a disciplinary violation, his claim that some
evidence was not reviewed or he was denied a witness does not state a constitutional claim,
especially in light of the absence of a loss of liberty, i.e., revoked diminution credits. Therefore,
plaintiff’s first claim must be dismissed.
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).2 A>A
complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the
pleading alone.=@ Gill v. Mooney, 824 F.2d 192, 194 (2nd Cir. 1987) (quoting Flaherty v.
Coughlin, 713 F.2d 10, 13 (2nd Cir. 1983)); Pierce v. King, 918 F. Supp. 932, 945 (E.D. N.C.
1996) (conclusory allegations of retaliation insufficient to state claim).
2

Compare Burton v. Livingston, 791 F.2d 97, 100-101 (8th Cir. 1986) (stating that
Acomplaint that a prison guard, without provocation, and for the apparent purpose of retaliating
against the prisoner's exercise of his rights in petitioning a federal court for redress, terrorized
him with threats of death@ sufficient to state claim).
3

The Fourth Circuit has said:
Retaliation, though it is not expressly referred to in the Constitution, is
nonetheless actionable because retaliatory actions may tend to chill
individuals' exercise of constitutional rights. Perry v. Sindermann, 408
U.S. 593, 597 (1972). Where there is no impairment of the plaintiff's
rights, there is no need for the protection provided by a cause of action
for retaliation. Thus, a showing of adversity is essential to any retaliation
claim.
ACL U of Maryland, Inc. v. Wicomico County, Md. 999 F.2d 780, 785 (4th Cir. 1993)
“In the prison context, we treat such claims with skepticism because ‘[e]very act of discipline by
prison 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, 40 F.3d
at 74).
The complaint as presented alleges no discernible exercise of a constitutional right which
prompted the claimed retaliatory actions. Indeed, plaintiff readily admits to numerous verbal
altercations during which he called correctional officers “hillbillies.”

Although plaintiff

references the filing of numerous ARPs, he does not delineate the nature of those complaints. In
light of plaintiff’s self-represented status, however, he will be provided an opportunity to
supplement this claim to clarify what conduct prompted the alleged retaliation. In supplementing
the claim, plaintiff is reminded that citation of legal cases and submission of exhibits is
unnecessary.
A separate Order follows.

June 6, 2013
Date

/s/
Ellen L. Hollander
United States District Judge

4