Pronin v. Richardson et al

Filing 4

MEMORANDUM filed. Signed by Judge J. Frederick Motz on 2/9/2015. (c/m 2/10/15)(kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DIMITRY PRONIN

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Plaintiff

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v

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DEBORAH RICHARDSON,
D. COPPER,
G. LEWIS,
LT. BROWN,
OFFICER POBLETTS,
THOMAS FITZGERALD,
OFFICER AUSTIN,
SGT. PIBULSURY, and
A. SIMS

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Defendants

Civil Action No. JFM-15-163

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MEMORANDUM

The above-captioned civil rights complaint was filed on January 16, 2015, together with a
motion to proceed in forma pauperis. Because plaintiff appears indigent, his motion will be
granted. For the reasons below, the complaint must be dismissed.
Plaintiff Dimitry Pronin is a pre-trial detainee at the Baltimore County Detention Center
(BCDC) in Towson, Maryland. The complaint alleges violation of plaintiff’s constitutional
rights of access to the courts and to be free from cruel and unusual punishment. Additionally,
plaintiff claims he is the subject of harassment and retaliation in an effort to prevent him from
pursuing criminal charges against two other inmates. ECF 1 at p. 3. Specifically, plaintiff
claims that on December 8, 2014, two inmates exposed themselves to him and used derogatory,
harassing language of a sexually explicit nature. Two days later plaintiff talked to a Baltimore
County police officer, Yonis, and a formal police report with recommendation for the two

inmates to be charged was issued. Plaintiff claims Sgt. D. Copper filled out an application for
statement of charges which was supposed to be reviewed by a lieutenant on duty so that
arrangements could be made for plaintiff to be transported to the District Court for Baltimore
County to provide testimony to a commissioner. Id.
Plaintiff alleges that “then strange things started.” Id. He states that on December 28,
2014, he was again subjected to indecent exposure and sexually explicit derogatory language
from the same inmates. When plaintiff attempted to report the incident to Corporal McDowell
and Sgt. G. Lewis, an incident report was issued to plaintiff recommending that plaintiff be
charged with disobeying orders. Additionally, plaintiff claims Lewis refused to talk to Lt.
Brown about transporting plaintiff to court to appear before a commissioner. Id. at p. 4.
Plaintiff continued to ask Copper to arrange for his transportation to court on December
29 and 30, 2014, but alleges she declined to do so. Plaintiff states he was also denied a form to
file an administrative complaint regarding the continued refusal to transport him to court to
provide testimony before a commissioner. On December 30, 2014, plaintiff alleges he was again
subjected to indecent exposure and sexually explicit language by one of the alleged offenders.
Id. at p. 5.
Plaintiff received a disciplinary hearing on charges he failed to obey an order on
December 31, 2014. He was found not guilty. Plaintiff asked Copper for an administrative
complaint form to file a grievance against the officer who charged him with the rule violation.
He also claimed the sole purpose of the disciplinary charges were to discourage his pursuit of
criminal charges against the two inmates who exposed themselves to him. He alleges his request
for an administrative complaint form was ignored. Id. at pp. 5 – 6. Plaintiff claims two requests
to be brought before a commissioner and for an administrative complaint form were also made in

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writing to the administrator of BCDC were also ignored. Plaintiff claims he will be “transferred
soon.” Id. at p. 6.
Plaintiff further asserts that he was denied recreation time and showers on various dates
by correctional staff and claims such denials amount to cruel and unusual punishment. He
alleges his “walks” were cancelled on false accusations that he had violated rules and on one
occasion he was denied a razor and nail clippers.1 ECF 1 at p. 7. Specifically, he claims he was
denied walks on four occasions in January of 2014; and was denied gymnasium time on March
9, 2014. Id. at p. 8. He asserts denying recreation amounted to punishment in violation of his
Fourteenth Amendment right. In exhibits filed with the complaint, a response from BCDC
administrators explained that recreation was suspended on plaintiff’s housing unit because it was
on lock down status and on occasion, is unavailable due to staff shortages. ECF 1 at unmarked
exhibit, “Department of Corrections Intra-Department Memorandum,”

see also Ex. 12

(plaintiff’s grievance indicating housing unit was locked down after a weapon was found).
Prisoners have a constitutionally protected right of access to the courts. See 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).

“There is no clearly established right to

transportation to a court for the purpose of filing criminal charges.” Lopez v. Robinson, 914 F.
2d 486, 494 (4th Cir. 1990). The right of access to courts concerns enforcement of personal
rights; prosecution of a third party for criminal conduct is not a personal right. Id., citing Linda
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Plaintiff relies on this incident for his claim he was denied basic hygiene.

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R. v. Richard V., 410 U.S. 614 (1973) (private citizens lack a judicially cognizable interest in the
criminal prosecution of another). Additionally, an actual injury must inure from the alleged
denial of access to courts. See Lewis, 518 U.S. at 349. 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.@ Id.
Plaintiff’s claim that he has been denied access to the courts by defendants’ refusal to
transport him to press criminal charges against two other inmates does not state a cognizable
constitutional claim and does not allege an actual injury. As noted, as an alleged victim of
criminal conduct, does not have a cognizable right to pursue prosecution of his alleged assailants.
Moreover there is no allegation that the statute of limitations for filing criminal charges has
passed or is even quickly approaching.2 Plaintiff’s assertion that he will soon be transferred does
not change the analysis.
Plaintiff’s claim regarding denial of administrative complaint forms fares not better. The
Prison Litigation Reform Act [APLRA@] requires a prisoner to exhaust administrative remedies
before filing suit in federal court. Title 42 U.S.C. '1997e(a) provides that A[n]o action shall be
brought with respect to prison conditions under ' 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.@ The Supreme Court has interpreted the language of
this provision broadly, holding that the phrase Aprison conditions@ encompasses Aall inmate suits
about prison life, whether they involve general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.@ Porter v. Nussle, 534 U.S. 516, 532 (2002).
Failure to exhaust administrative remedies is an affirmative defense which may be raised in
2

The incidents alleged occurred within a month of the filing of this complaint.

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defense of a claim raised against prison officials. The defense may be rebutted through a
showing that administrative remedies were not available to the prisoner plaintiff and this court is
“obligated to ensure that any defects in administrative exhaustion were not procured from the
action or inaction of prison officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th
Cir. 2007).3 The failure to provide plaintiff with forms to file administrative complaints does not
state a constitutional claim.
The inquiry with respect to the conditions alleged is whether or not those conditions
amount to punishment of the pre-trial detainee because due process proscribes punishment of
detainee before proper adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 535 (1979). A[N]ot
every inconvenience that is encountered during pre-trial detention amounts to >punishment= in the
constitutional sense.@ Martin v. Gentile, 849 F. 2d 863, 870 (4th Cir. 1988).

A particular

restriction or condition of confinement amounts to unconstitutional punishment in violation of
the Fourteenth Amendment if it is imposed by officials with the express intent to punish or it is
not reasonably related to a legitimate, non-punitive goal. Bell, 441 U.S. at 538B 39 (restrictions
or conditions that are arbitrary or purposeless may be considered punishment). In determining
whether the challenged conditions amount to punishment, it is not the province of this court to

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The Fourth Circuit has addressed the meaning of Aavailable@ remedies:
[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. See Aquilar-Avellaveda v. Terrell, 478 F. 3d
1223, 1225 (10th Cir. 2007); Kaba v. Stepp, 458 F. 3d 678, 684 (7th Cir. 2006). 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. See Woodford v. Ngo, 548 U.S. 81, 89
(2006). Rather, to be entitled to bring suit in federal court, a prisoner must have utilized all
available remedies Ain accordance with the applicable procedural rules,@ so that prison officials
have been given an opportunity to address the claims administratively. Id. at 87. Having done that,
a prisoner has exhausted his available remedies, even if prison employees do not respond. See
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).

Moore v. Bennette, 517 F. 3d 717, 725 (4th Cir. 2008).

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determine how a particular facility might be more beneficently operated; the expertise of prison
officials must be given its due deference. See Sandin v. Conner, 515 U.S. 472, 482 (1995).
Plaintiff’s claims that he was denied recreation, nail clippers, and a razor, and that
correctional officers have made derogatory statements to and about him, do not state a
constitutional claim. ADue process rights of a pretrial detainee are at least as great as the eighth
amendment protections available to the convicted prisoner.@ Hill v. Nicodemus, 979 F. 2d 987,
991 (4th Cir. 1992), citing Martin v. Gentile, 849 F. 2d 863, 870 (4th Cir. 1988). Where, as here,
there are valid, legitimate security reasons for suspension of recreation and the deprivation is
short-term, there is no cognizable claim. Plaintiff’s own evidence establishes there was a lock
down in effect and that there are sometimes issues with staff shortages which prohibit providing
recreation. To the extent plaintiff does not believe those managerial decisions are legitimate, it is
not the function of this court to second-guess decisions related to the daily operations of BCDC
without evidence of extreme deprivations prohibited by the constitutional protections afforded to
pre-trial detainees. Moreover, an isolated incident wherein plaintiff was denied the opportunity
to shave and cut his fingernails is a frivolous claim.
Additionally, verbal abuse of a pre-trial detainee, without more, does not state a claim.
See Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979). The statements alleged in this case are not
condoned by this court, but the claim falls short of acts forbidden by the Fourth, the Fourteenth,
or the Eighth Amendments. See Pink v. Lester, 52 F.3d 73, 75 (1995) (A[N]ot all undesirable
behavior by state actors is unconstitutional.@).
Thus, the complaint must be dismissed for failure to state a claim upon which relief may
be granted. Plaintiff is reminded that under 28 U.S.C. '1915(g) he will not be granted in forma
pauperis status if he has Aon 3 or more prior occasions, while incarcerated or detained in any
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facility, brought an action or appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.@ The instant case will be
the first filed by plaintiff that has been dismissed as frivolous.

For the reasons stated, this case

will be dismissed by separate order.

___February 9, 2015__
Date

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

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