Matthews, Junior v. Bishop, Jr.

Filing 29

MEMORANDUM. Signed by Chief Judge Catherine C. Blake on 9/14/2015. (c/m 9/14/15)(krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN ANTHONY MATTHEWS, JR.
#317-748
v.
FRANK B. BISHOP, JR.

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CIVIL ACTION NO. CCB-14-1186
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MEMORANDUM
John Anthony Matthews, Jr. (“Matthews”) brings this suit pursuant to 42 U.S.C. § 1983.
Frank B. Bishop, Jr. (“Bishop”) has filed a motion to dismiss or, in the alternative, motion for
summary judgment.1 (Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J., ECF No. 20.)
Matthews has filed a response in opposition. (Pl.’s Resp. in Opp’n, ECF No. 24.) The matter is
ripe for disposition.2 No hearing is needed to resolve the issues presented.3 See Local Rule 105.6
(D. Md. 2014).
BACKGROUND
I. Matthews’ Claims
Matthews is an inmate housed at North Branch Correctional Institution (“NBCI”) in
Cumberland, Maryland. He filed suit on April 10, 2014, alleging Bishop improperly promulgated
a policy “which transformed and consequently classified” his housing unit, Housing Unit 2, a
general population unit, into a “Special Management Housing Unit.” (Pl.’s Compl., ECF No. 1,
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Frank B. Bishop is the warden at North Branch Correctional Institution (“NBCI”). Dep’t of Pub. Safety & Corr.
Facilities, N. Branch Corr. Inst., http://www.dpscs.state.md.us/locations/nbci.shtml.
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Also pending are Matthews’ motions for a preliminary injunction, for leave to file an amended complaint, and to
appoint counsel, which will be addressed herein. (ECF Nos. 25, 27, 28.)
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On June 26, 2015, Matthews filed a motion for appointment of counsel, stating he anticipates a trial in this case
and his imprisonment will greatly limit his ability to litigate the issues. (ECF No. 28.) Matthews has adequately
presented his claims and replied to the defendant’s dispositive motion. No extraordinary circumstances are
presented to warrant appointment of counsel. Accordingly, the motion will be denied by separate order to follow.

at 1.) As a result, Matthews claims the defendant unlawfully discriminated against him by
denying him equal opportunities and benefits accorded to inmates in other general population
housing units. (Id. at 2.)
Specifically, Matthews alleges inmates in other general population units receive daily
showers, are eligible to apply for “preferred” job assignments that entitled them to receive
diminution credits, and participate in educational and recreational programs. (Id.) He claims, as a
resident of Housing Unit 2, he was “subjected to harsh Super MAX-like conditions” without
prior notice or hearing, despite being part of the general prison population and receiving only one
rule infraction during more than eleven years of incarceration. (Id.) As relief, he is requesting
compensatory and punitive damages and the termination of Bishop as Warden of NBCI.4 (Id. at
3.)
Matthews presented these allegations through internal grievance channels. On February
6, 2014, Matthews filed an Administrative Remedy Procedure (“ARP”) request. (Id. at 6, Ex. C.)
Matthews’ request claims he was only permitted to purchase at the commissary twice each
month, participate in recreation every other day, and shower twice weekly. (Id.) He alleges
inmates in other housing units were permitted to purchase at the commissary three times each
month, participate in recreation daily, and shower daily. (Id.) Matthews requested inmates in his
housing unit be given the same opportunities as inmates housed in other units. (Id.) The request
was dismissed by Bishop for lack of merit on February 24, 2014. (Id.) Matthews appealed
Bishop’s dismissal to the Commissioner of Correction on March 3, 2014. (Pl.’s Mot. for Leave

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Matthews filed a motion to amend the complaint to add former Secretary of the Department of Public Safety and
Correctional Services, Gregg L. Hershberger (“Hershberger”), as a defendant. (Pl.’s Mot. for Leave to File Am.
Compl., ECF No. 27.) As Hershberger has since retired from the position, see Dep’t of Pub. Safety & Corr.
Facilities, Former Secretaries, http://msa.maryland.gov/msa/mdmanual/22dpscs/former/html/msa16872.html, the
motion to amend will be denied. Furthermore, for reasons later discussed, Matthews is not entitled to relief anyway.
See infra, at 6-10.

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to File Am. Compl., ECF No. 16-2, at 2-3, Ex. N.) Matthews filed a grievance with the Inmate
Grievance Office (“IGO”) on March 31, 2014. (Id. at 4-6, Ex. O.) The grievance was dismissed
by the IGO on May 22, 2014 for failing to properly exhaust the appeals process with the
Commissioner first. (Id. at 8, Ex. P.)
II. Defendant’s Response
The defendant asserts Matthews’ claims against him are barred by sovereign immunity,
qualified immunity, and Matthews’ failure to exhaust administrative remedies, as well as for
failure to state a claim upon which relief may be granted because the facts do not allege a
violation of a constitutionally protected liberty interest. (Def.’s Mot. to Dismiss or, in the
Alternative, for Summ. J., at 1.) The defendant has filed declarations and verified copies of
portions of Matthews’ prison records in support of his dispositive motion. (See ECF 20-2, -3, -4.)
In his declaration, William S. Bohrer (“Bohrer”), Chief of Security at NBCI, attests that
on August 5, 2013, a correctional officer was severely assaulted and required hospitalization.
(Bohrer Decl., ECF 20-2, at 1.) The assault on staff was one of several that took place over a
two-month period, and the entire institution was placed on emergency lockdown to permit the
administration to evaluate safety and security at NBCI. (Id. at 2.) Bobby Shearin, who was NBCI
Warden at the time, ordered NBCI staff to interview every inmate at the facility to assist in
evaluating their security risk and to ensure each was appropriately housed based on demeanor
and behavioral history. (Id.)
According to Bohrer, Housing Unit 2 is a general population unit. (Id.) It remained on
modified lockdown status for a number of months. (Id.) All movement outside of Housing Unit 2
by inmates in that unit was done under escort until May 16, 2014, when the Chief of Security
authorized un-cuffed escorts. (Id. at 3.) Since July 11, 2014, maximum security inmates,

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including those in Housing Unit 2, have been permitted to participate in outside recreation and
are allowed regular visits in the visiting room. (Id. at 3-4.) Since August 4, 2014, inmates in Aand B-Tiers of Housing Unit 2 are permitted to walk to meals in the dining hall on the day shift.
(Id. at 4). Bohrer attests since June 2014, “Housing Unit 2 has completely come off of lockdown
and is running under normal operations.” (Id.) He later states that, beginning August 4, 2014,
“the modified lockdown status was lifted and Housing Unit 2 began normal operations.”5 (Id. at
4.)
Matthews is a maximum security inmate, (id.), who is serving a life sentence for firstdegree murder. (White Decl., ECF No. 20-3, at 3.) Matthews received an infraction on October
11, 2013, while housed at Patuxent Institution.6 After a disciplinary hearing, Matthews was
sentenced to sixty days of administrative segregation on October 12, 2013. (Id., at 20.) On
November 19, 2013, he was transferred to NBCI and placed in Housing Unit 1 to complete his
sixty-day term of disciplinary segregation. (Bohrer Decl., at 3.) Matthews completed his
disciplinary sanction on December 10, 2013. (Id.) Due to limited movement and bed availability
in Housing Unit 2 as a result of the lockdown, however, Matthews remained in Housing Unit 1
until January 17, 2014, when he was moved to D-Tier of Housing Unit 2.7 (Id.)
On January 17, 2014, Matthews met with his case manager and was recommended for a
sanitation job. (Id.) He was approved for a sanitation job on January 24, 2014. (Id.) On
September 16, 2014, Matthews was approved for a dietary job assignment. (Id. at 4.)

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On

These statements appear to be in conflict and are not otherwise explained by defendant.

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A hearing officer found Matthews guilty of violating Rules 117 (engaging in a sexual act) and 402 (being in a
location without authorization) after evidence was introduced that he had engaged in sexual intercourse with an
inmate in a restroom at Patuxent Institution. (White Decl., at 13-20.)
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Matthew’s claims are predicated on his housing in Unit 2. He does not raise any claims about the disciplinary
proceedings that led to his sixty-day disciplinary sanction or the conditions of his confinement in Housing Unit 1.

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November 19, 2014, he was assigned to a sanitation job. (Pl.’s Mot. for Prelim. Inj., ECF 25-1,
3-4.)
STANDARD OF REVIEW
The court recognizes that Matthews is a self-represented litigant and accords his
pleadings liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Bishop’s dispositive
motion will be treated as a motion for summary judgment under Rule 56(a) because materials
outside the original pleadings have been considered. See Bosiger v. U.S. Airways, 510 F.3d 442,
450 (4th Cir. 2007).
Rule 56(a) provides that summary judgment should be granted “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). Whether a fact is material depends upon the substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accordingly, “the mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment . . . .” Id. at 247. “A 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 “view the evidence in the light most favorable to . .
. the nonmovant, and draw all 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). The court must, however, also abide by its “affirmative obligation . . . to prevent
factually unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526
(internal quotation marks omitted).

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ANALYSIS
I. Failure to Exhaust Administrative Remedies
The defendant asserts Matthews has failed to exhaust his administrative remedies. The
Prisoner Litigation Reform Act (“PLRA”) states that “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a).
The exhaustion requirement allows a prison to address complaints about the program it
administers before being subjected to suit, reduces litigation to the extent complaints are
satisfactorily resolved, and improves litigation that does occur by creating a useful record. Blake
v. Ross, 787 F.3d 693, 697-98 (4th Cir. 2015) (citing Jones v. Bock, 549 U.S. 199, 219 (2007)).
The exhaustion requirement “has been interpreted to require prisoners to pursue administrative
grievances until they receive a final denial of their claim, appealing through all available stages
in the administrative process.” Chase v. Peay, 286 F.Supp.2d 523, 530 (D. Md. 2003). The
requirement does not require the exhaustion of administrative processes unavailable to a
prisoner. “[A]n administrative remedy is not considered to have been available if a prisoner,
through no fault of his own, was prevented from availing himself of it.” Blake, 787 F.3d at 697
(quoting Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008)). Conversely, “a prisoner does not
exhaust all available remedies simply by failing to follow the required steps so that remedies that
once were available to him no longer are.” Moore, 517 F.3d at 725.
In Maryland, filing a request for an administrative remedy with the Warden of the prison
in which one is incarcerated is the first of three steps in the ARP process provided by the
Division of Correction to its prisoners. If this request is denied, the prisoner has ten calendar
days to file an appeal with the Commissioner of Correction. If this appeal is denied, the prisoner
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has thirty days in which to file an appeal to the Executive Director of the IGO. See Md. Code.
Ann., Corr. Servs. §§ 10–201 to 210. The Executive Director shall dismiss a grievance as lacking
in merit if “[t]he grievant did not properly exhaust remedies available under the administrative
remedy procedure . . . .” COMAR 12.07.01.06(B)(4).
Matthews’ ARP request was denied on February 24, 2014. (Pl.’s Compl., at 6, Ex. C.)
Matthews filed an appeal to the Commissioner on March 3, 2014. (ECF No. 16-2, at 2, Ex. N.)
The Commissioner’s response would have been due 30 days after receipt of the appeal, or April
2, 2014, if the appeal was received the same day it was filed. (Id. at 8, Ex. P.) Matthews filed a
grievance with the IGO on March 31, 2014, without waiting for the Commissioner’s decision.
(Id.) On May 22, 2014, the IGO dismissed the grievance for failure to properly exhaust the
appeals process with the Commissioner. (Oakley Decl., ECF No. 20-4, at 2-3.)
Because Matthews did not wait for the Commissioner’s response to his appeal before
filing a grievance with the IGO, Matthews failed to exhaust his administrative remedies.
Accordingly, even when drawing all inferences in favor of Matthews, the court finds there are no
genuine issues of material fact regarding Matthews’ failure to exhaust administrative remedies as
required by the PLRA. The defendant’s Motion for Summary Judgment will be granted.
II. Due Process
Even if Matthews had exhausted his administrative remedies as required by PLRA, he
has not shown a constitutional due process violation. Prisoners have a liberty interest in avoiding
confinement conditions that impose “atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); Wilkinson
v. Austin, 545 U.S. 209, 222-23 (2005). Determining whether this standard has been met
“necessarily is fact specific . . . .” Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997). “[H]arsh
or atypical prison conditions in and of themselves [do not] provide the basis of a liberty interest
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giving rise to Due Process protection.” Prieto v. Clarke, 780 F.3d 245, 250 (4th Cir. 2015).
Rather, inmates must first establish that an interest in avoiding onerous or restrictive confinement
conditions “arise[s] from state policies or regulations.” Id. (quoting Wilkinson, 545 U.S. at 22122). The Fourth Circuit uses the general prison population as the baseline for atypicality for
inmates who are sentenced to confinement in the general prison population and have been
transferred to security detention while serving their sentences. Incumaa v. Stirling, 791 F.3d 517,
527 (4th Cir. 2015).
In this case, prison security measures placed the entire correctional facility on emergency
lockdown so that each inmate could be interviewed to evaluate his proper housing placement in
light of several incidents that had threatened the safety and security of the institution. It is not the
province of this court to determine how a prison might be better managed, and the expertise of
prison officials must be given due deference. See Sandin, 515 U.S. at 482 (“[F]ederal courts
ought to afford appropriate deference and flexibility to state officials trying to manage a volatile
environment.”). The rationale for such deference “is greatest when the maintenance of prison
order is at stake.” In re Long Term Admin. Segregation of Inmates Designated as Five
Percenters, 174 F.3d 464, 469 (4th Cir. 2003). It is also important to note that the restrictions in
Housing Unit 2 were imposed for a limited purpose and time period, and were gradually lifted as
deemed appropriate with concerns of institutional security. Finally, an inmate's expectation of
keeping or obtaining a specific prison job does not implicate a constitutionally protected interest.
See Altizer v. Paderick, 569 F.2d 812, 813 (4th Cir. 1978) (“[W]ork assignments of prisoners . . .
are matters of prison administration, within the discretion of prison administrators,” and do not
implicate the Due Process Clause.).
In light of the above, the court concludes no liberty interest was implicated or violated in

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the decisions associated with Matthews’ placement in Housing Unit 2. Thus, even when drawing
all inferences in favor of Matthews, the court finds there are no genuine issues of material fact,
and the defendant is entitled to summary judgment in his favor.
III. Preliminary Injunctive Relief
Matthews is requesting a preliminary injunction to restrain the defendant and his staff
from denying him a job in the dietary department and from “interfer[ing] with [his] progress in
this institution.” (Pl.’s Mot. for Prelim. Inj., at 2.) A preliminary injunction is an extraordinary
and drastic remedy. See Munaf v. Geren, 553 U.S. 674, 676 (2008). For injunctive relief to be
granted, a claimant must establish that “he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in
his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). Matthews does not satisfy this standard. For reasons discussed
earlier, Matthews does not show the likelihood of succeeding on the merits. Furthermore, he
does not show the likelihood of suffering irreparable harm, nor is the balance of equities in his
favor. In light of the deference accorded to prisons on issues of management and security,
Matthews fails to show how preliminary injunctive relief would be in the public interest.
Accordingly, the plaintiff's motion for a preliminary injunction will be denied.
CONCLUSION
For the foregoing reasons, the plaintiff’s motions for leave to file an amended complaint,
to appoint counsel, and for a preliminary injunction will be denied. Summary judgment will be
granted in favor of the defendant. A separate order follows.

September 14, 2015
Date

/S/
Catherine C. Blake
United States District Judge
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