Cohen v. Miller et al

Filing 33

MEMORANDUM. Signed by Judge William M Nickerson on 7/5/2016. (c/m 7/5/2016)(ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANTHONY COHEN

*

Plaintiff

*

v

*

Civil Action No. WMN-15-1881

ASSISTANT WARDEN RICHARD MILLER *
et al.
Defendants
*
***
MEMORANDUM
Defendants filed a Motion to Dismiss or for Summary Judgment (ECF 20) in response to
the above-entitled civil rights complaint.1 Plaintiff opposes the motion. ECF 29. The Court
finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons
stated below, Defendants’ motion, construed as a Motion for Summary Judgment, shall be
granted.
This Court directed counsel for Defendants to respond to Plaintiff’s Motion for Extension
of Time indicating that he was denied access to legal materials during the pendency of this case.
ECF 27. Prior to receipt of that response (ECF 30), Plaintiff filed a response indicating he had
received his legal materials. ECF 28. The issue regarding his alleged denial of legal materials is
therefore moot and will not be addressed further.
Background
Plaintiff Anthony Cohen, a prisoner confined to North Branch Correctional Institution
(“NBCI”), alleges that on March 7, 2014, he was given a “false infraction” to cover up a
“malicious and brutal attack” on Cohen by correctional officers. The assault was the subject of a
prior case filed by Cohen in this Court. See Cohen v. Wexford Health Source, et al., Civil Action
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Plaintiff filed a Motion for Appointment of Counsel. ECF 32. In light of the fact that this case will not
proceed to trial, that motion will be denied.

WMN-14-1850 (D. Md.).

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He states that Officer Shawn Murray came to the isolation cell

where Cohen was being held, told him he had an adjustment hearing, and then stated that Cohen
would not be attending the hearing. ECF 1 at p. 3.
On March 19, 2014, Cohen appealed the adjustment hearing decision to the warden,
based on the refusal to allow him to attend the hearing. In his appeal, Cohen states he never
received a copy of the infraction3 prior to the hearing date and that Officer Murray’s comment
regarding Cohen’s behavior being the reason he would not be allowed to attend the hearing was
unfounded. ECF 1-1 at p. 2. Cohen stated that at the time he was told he could not attend the
hearing, he was sitting in his cell with a fever, high blood pressure, and a mild concussion. Id.
He further alleged that Murray was not an escort officer, nor was he involved in conducting
adjustment hearings that day, so his presence at Cohen’s cell constituted harassment. Id. Cohen
claimed he could prove beyond a reasonable doubt he did not commit the assault had he been
allowed to attend the hearing. Id. His appeal was denied by Assistant Warden Richard Miller
on April 5, 2014. ECF 1 at pp. 3 – 4, see also ECF 1-1 at p. 12. Cohen appealed Miller’s denial,
to the Inmate Grievance Office (“IGO”) on May 1, 2014. Id. at p. 4.
Cohen states he sent three letters to the IGO inquiring about the status of his appeal,
dated July 15, 2014, August 4, 2014, and August 18, 2014. Executive Director of the IGO, Scott
Oakley, dismissed Cohen’s appeal as untimely, maintaining the first correspondence received
from Cohen was the letter dated August 18, 2014. ECF 1 at p. 4.
Cohen appealed the IGO dismissal to the Circuit Court for Allegany County, alleging the
dismissal was not valid because Cohen had “all returned letters of inquiry.” ECF 1 at pp. 4 – 5
He states the letters were stamped received by the IGO on July 18, August 8, and August 25,

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Cohen was appointed counsel in that case and the litigation is ongoing.
A copy of the Notice of Infraction is attached to the complaint. ECF 1-1 at p. 7.

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2014. Id., see also ECF 1-1 at pp. 15 - 20. The Circuit Court affirmed the IGO’s decision in an
order dated June 4, 2015. ECF 1-1 at p. 13.
Cohen states that in a similar case, Assistant Commissioner Randy Watson issued a
memorandum dated October 1, 2014, stating that an officer in a different case did not have the
authority to decide that Cohen could not attend an adjustment hearing. ECF 1 at p. 5, see also
ECF 1-1 at pp. 21-23.
Cohen claims he has been housed in punitive segregation since 2013 based on false
infractions for which he was not allowed to attend adjustment hearings. He explains that
segregation inmates are not allowed any of the amenities permitted in general population. As
relief he seeks ten thousand dollars in damages. ECF 1 at pp. 5 – 6.
Defendants assert that Cohen refused to sign the receipt indicating he received a copy of
the Notice of Infraction charging him with violation of rules 101 (assault or battery on staff) and
400 (disobeying a direct lawful order). ECF 20 at Ex. 1 at pp. 2 – 4. Cohen’s refusal to sign the
receipt was witnessed by Officers Marken and Shaffer. Id. at p. 2; see also Ex. 3 at p. 2.
The adjustment hearing was conducted on March 11, 2014, by hearing officer La’Tricia
Taylor. ECF 20 at Ex. 4. Defendants assert that Cohen was heard in absentia “because he was
on staff alert due to his assault upon the officers.” Id. at p. 8, Ex. 3 at p. 8, Ex. 5, p. 2, Ex. 6, p. 2.
Defendants maintain that Cohen did not appeal the Warden’s decision finding him guilty to the
IGO until August 25, 2014. Id. at Ex. 4, pp. 12 – 13.
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.

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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).
“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 should “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 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 “affirmative obligation of the trial judge to prevent factually
unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526 (internal
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
Exhaustion of Administrative Remedies
Defendants raise the affirmative defense of non-exhaustion and assert Plaintiff’s claim
was not properly presented through the administrative remedy procedure and must be dismissed
pursuant to 42 U.S.C. § 1997e. ECF 20. The Prisoner Litigation Reform Act (PLRA) provides,
in pertinent part:
(a) Applicability of administrative remedies
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No 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.
As a prisoner, Plaintiff is subject to the strict requirements of the exhaustion provisions.
It is of no consequence that Plaintiff is aggrieved by a single occurrence, as opposed to the
general conditions of confinement claim. See Porter v. Nussle, 534 U.S. 516, 528 (2002) (no
distinction is made with respect to exhaustion requirement between suits alleging
unconstitutional conditions and suits alleging unconstitutional conduct). Exhaustion is also
required even though the relief sought is not attainable through resort to the administrative
remedy procedure. See Booth v. Churner, 532 U.S. 731, 741 (2001). A claim which has not
been exhausted may not be considered by this court. See Jones v. Bock, 549 U.S. 199, 220
(2007).
Administrative remedies must, however, be available to the prisoner 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). The Fourth Circuit has addressed the meaning of “available” 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 “in 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).

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Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008).
Thus, Cohen’s claims must be dismissed if Defendants raise the affirmative defense and
also prove that he has failed to exhaust available remedies. See Jones, 549 U.S. at 216–17
(failure to exhaust is an affirmative defense and inmates are not required to demonstrate
exhaustion in their complaints).

The PLRA’s exhaustion requirement is designed so that

prisoners pursue administrative grievances until they receive a final denial of the claims,
appealing through all available stages in the administrative process. Chase v. Peay, 286 F. Supp.
2d 523, 530 (D. Md. 2003); Booth, 532 U.S. at 735 (affirming dismissal of prisoner’s claim for
failure to exhaust where he “never sought intermediate or full administrative review after prison
authority denied relief”); Thomas v. Woolum, 337 F.3d 720, 726 (6th Cir. 2003) (noting that a
prisoner must appeal administrative rulings “to the highest possible administrative level”); Pozo
v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (prisoner must follow all administrative
steps to meet the exhaustion requirement, but need not seek judicial review).
Cohen’s presentation of letters marked received by the IGO inquiring about the status of
his appeal from the adjustment hearing held in this case does not refute that no appeal was
received by the IGO; rather, it simply establishes the IGO received letters from him inquiring
about the appeal along with other matters he filed with that office. ECF 29-2 at pp. 16 – 21.
Notwithstanding that fact, this Court finds there is a genuine dispute of material fact regarding
whether Cohen’s attempt to exhaust administrative remedies was thwarted by circumstances
outside of his control and will reach the merits of his claim herein.
Due Process Claim
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

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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
564-66, 592. 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, 504-05 (4th Cir. 2004). As long as the hearing officer’s decision
contains a written statement of the evidence relied upon, due process is satisfied. See Baxter,
425 U.S. at 322, n.5. Moreover, substantive due process is satisfied if the disciplinary hearing
decision was based upon “some evidence.” Superintendent, Mass. Corr. Inst. 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 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.
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.”

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Sandin v. Conner, 515 U.S. 472, 484 (1995) (citing Wolff v. McDonnell, 418 U.S. 539);
Wilkinson v. Austin, 545 U.S. 209, 210 (2005). Whether confinement conditions are atypical and
substantially harsh “in relation to the ordinary incidents of prison life” is a “necessarily . . . . fact
specific” comparative exercise. Beverati v. Smith, 120 F.3d 500, 502-03 (4th Cir. 1997) (quoting
Sandin, 515 U.S. at 483-84); accord Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)
(“There is no single standard for determining whether a prison hardship is atypical and
significant, and the condition or combination of conditions or factors . . . . requires case by case,
fact by fact consideration.” (alteration in original) (internal quotation marks omitted)).
“Wilkinson does not hold that harsh or atypical prison conditions in and of themselves provide
the basis of a liberty interest giving rise to Due Process protection.” Prieto v Clarke, 780 F.3d
245, 250 (4th Cir. 2015). Rather, there must exist an interest in avoiding “erroneous placement
[in the challenged confinement] under the state’s classification regulations combined with . . . .
harsh and atypical conditions” for due process protections to apply. Id. (emphasis in original)
(citing Wilkinson, 545 U.S. at 224-25).
“[G]eneral population is 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 sentence.” Incumaa v. Stirling, 791 F.3d 517, 527 (4th Cir. 2015). Where, as
in Beverati v. Smith, 120 F.3d 500 (4th Cir. 1997), conditions in segregated confinement are
“similar in most respects to those experienced by inmates in the general population,” no liberty
interest exists in avoiding that segregation assignment. Beverati, 120 F.3d at 503. Where an
inmate is sentenced to death row, as in Prieto, “using the general population to gauge the
ordinary incidents of prison life . . . . was improper.” Incumaa, 791 F.3d at 528 (citing Prieto,
780 F.3d at 252-54). While the nature of a prisoner’s conviction and the length of his sentence

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do not give rise to differing liberty interests, “state law mandates regarding the confinement
conditions to be imposed on offenders convicted of a certain crime and receiving a certain
sentence are, by definition, the ordinary incidents of prison life for such offenders.” Id. (quoting
Prieto, 780 F.3d at 254).
Cohen’s claim is based on the denial of prior written notice of the charges against him
and the denial of his right to attend the hearing, which also impacts his right to call witnesses in
support of his defense. Cohen denies refusing to sign the receipt for the infraction and maintains
he was so ill at the time he “could not even stand up without falling” due to his high blood
pressure, fever, and concussion. ECF 29-1 at p. 7. Cohen further asserts that there is nothing
describing how he presented a threat to the safety and/or security of the staff or institution. Id. at
p. 9.
Documents presented by Defendants indicate that Cohen’s refusal to sign the receipt on
the Notice of Infraction was witnessed by two officers who are not named as Defendants in this
case and that, despite his refusal, he was provided a copy of the infraction. ECF 20 at Ex. 3, p. 2.
Additionally, this Court notes that Cohen included a copy of the Notice of Infraction with the
complaint. ECF 1-1 at p. 7. While it is not possible to determine when Cohen came into
possession of the notice, this Court is mindful of the conundrum posed to correctional officials
when faced with a situation where a prisoner refuses to acknowledge receipt of a document.
Defendants rely upon Cohen’s assignment to staff alert status as the basis for conducting
his hearing in absentia. The “Staff Alert Designation Notice” states that Cohen was being placed
on Staff Alert on March 7, 2014, because “he has demonstrated by his actions that he is a
substantial security threat to the institution, staff or other inmates.” ECF 20 at Ex. 2, p. 3. It
further provides that the status must be reviewed after 24 hours; the inmate must remain on staff

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alert if he “cannot be removed” based on a review; and must be reviewed again after five days, at
which time the inmate may be either continued or removed from staff alert. Id. The comment
provided on the notice states, “[i]inmate covered his cell window. Staff conducted a wellness
check. As the cell door came open, Inmate Cohen charged toward staff causing a Use of Force.”
Id.
Cohen’s record of segregation confinement for March 2014, provides a chart to document
daily behavior as good (G), fair (F), or poor (P). ECF 20 at Ex. 2, p. 4. Cohen’s daily behavior
was rated as fair for March 7 – 13, 2014; rated as poor on March 14 and 15, 2014; and rated as
fair for the remainder of the month. Id. The daily log indicates that Cohen refused to follow
staff alert procedures to receive his meal on March 8, 13, 14, 15, and 17, 2014. Id. at p. 5.
Specifically, Cohen refused to get on his knees at the back of his cell while his meal was
delivered. Id. Thus, while Cohen is correct that the documents relating to the decision to hear
his infraction in absentia do not include a lengthy explanation as to how he presents a security
risk, his placement on staff alert status, along with the record of his segregated confinement
depicting repeated refusals to follow orders, supports the finding that he presented a threat to the
security of the institution and the safety of the staff. The Court finds on this record that the
exclusion of Cohen from the adjustment hearing was warranted by legitimate security concerns.
Cohen’s penalty did not include the loss of good conduct credits, but required Cohen to
serve 365 days of disciplinary segregation, suspension of visiting privileges indefinitely, and 30
days of cell restriction. ECF 20 at Ex. 3, p. 9; Ex. 4, pp. 9 – 10.

Defendants assert that the

primary differences between segregation and general population housing at NBCI are that
segregation inmates are: handcuffed or shackled whenever they are outside of the housing area;
generally only permitted one-hour a day out of their cells; limited to two showers per week; and

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only permitted to buy commissary items from an approved list of items with a $35 spending
limit. ECF 20-1 at p. 19, citing DCD 110-6 §VI(C), (D), and (H); NBCI.ID.110.0006.1 at p. 5.
Cohen describes the differences between general population and segregated confinement
in more detail. He states that in general population inmates are allowed: six showers per week,
participation in religious services, participation in educational, vocational, and self-help
programming, to order Commissary without limitations, access to the library, ordering of
packages, to own personal property such as televisions, radios and CD players, to eat regular size
meals in the cafeteria, recreation with other inmates, and to participate in all special events. ECF
29-1 at p. 22.
By contrast, Cohen states that while housed on the Special Management Unit he is
confined to a cell 24 hours a day on non-recreation or non-shower days and on days he receives
recreation he is only allowed out for an hour and the shower he receives is 15 minutes long. Id.
at p. 21. Prior to leaving his cell on segregation Cohen is subjected to a strip search requiring
him to move his genitals and display his anus to the officer at the door and is then handcuffed
behind his back even when he is leaving for a shower. Id. He further alleges that he is served
smaller portions of food which he is required to eat inside of his cell. Id. He claims that the
other inmates in the Special Management Unit scream and yell all night long and regularly throw
feces at Cohen through the crack of the cell doors. Id. at p. 22. He claims that when flooding of
the tier with feces and urine that runs into his cell occurs, he is not given disinfectant to clean the
cell or provided with “blood spill workers” to clean it. Id. Cohen adds that he “had to clean this
biochemical waste with the soap that was allotted to him with his hands or live with this biowaste in the cell.” Id. He concludes that there is no other housing unit at NBCI similar to the
Special Management Unit. Id.

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To the extent much of the conditions noted by Cohen are due to the misbehavior of other
inmates, those are not conditions imposed by correctional officials. Indeed, it stands to reason
that such conduct is not encouraged, nor is it tolerated by security staff.

The remaining

conditions regarding lack of programming, restraints, and searches, are not conditions that are
significantly atypical.

Security measures, withdrawal of participation in programs, and

limitations on allowable property or freedom to move within the institution, are all conditions
within the ambit of expected conditions of confinement following conviction of a criminal
offense. Thus, Cohen’s confinement to segregation does not implicate a liberty interest and
Defendants are entitled to summary judgment in their favor.
A separate Order follows.

_July 5, 2016_______
Date

________/s/__________________
William M. Nickerson
Senior United States District Judge

.

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