Fisher v. Johnson et al

Filing 37

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 4/28/2017. (c/m 4/28/17)(kr2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHAEL FISHER, #262-076

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Plaintiff

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v

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ORLANDO JOHNSON,
UNKNOWN PATUXENT INSTITUTION
OFFICIALS,
Individually and in their official capacities

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Civil Action No. RDB-16-2157

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Defendants
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MEMORANDUM OPINION
Self-represented Plaintiff Michael Fisher, a Maryland Division of Correction (“DOC”)
prisoner currently confined at North Branch Correctional Institution (“NBCI”),1 is suing Orlando
Johnson, Chief of Security at Patuxent Institution, in his official and individual capacities.
Fisher seeks compensatory and punitive damages and alleges that while housed at Patuxent,2
Johnson subjected him to retaliation that adversely impacted his prison job and classification
status and resulted in his transfer to NBCI.3 ECF 1. Johnson, by counsel, has filed a Motion to
Dismiss or, in the Alternative, for Summary Judgment. ECF 28.4 Consonant with the dictates of
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Fisher was notified Johnson’s Motion could
1

NBCI is a maximum-security facility located in Cumberland, Maryland.

2

Patuxent, located in Jessup, Maryland, is a treatment-oriented maximum-security facility.

3

Fisher also names as Defendants “Unknown Patuxent Institution Officials” who are alleged to have caused a delay
in mailing a pleading to the Circuit Court for Howard County in December of 2014 or January of 2015. Fisher also
alleges these Defendants opened mail from Georgetown Law Center on or around October 30, 2015, outside
Fisher’s presence. Fisher is unable to identify the individuals responsible for this interference with his legal mail,
and the allegations raised in the Complaint provide no factual basis to conclude that Fisher’s mail problems were
caused by Johnson’s interference. Fisher’s access-to-courts claims cannot proceed here, and the “Unknown”
Defendants shall be dismissed without prejudice in connection with the instant action.
4

The Motion contains an unsigned Declaration of Richard Roderick, Case Management Manager at NBCI. ECF 281. A signed Declaration was later provided. ECF 30-1.

be treated as a Motion for Summary Judgment and he was entitled to file an opposition with
materials in support. ECF 29.5 Fisher has filed an opposition to the Motion for Summary
Judgment, as supplemented. ECF 34, 35.6
The case is ripe for disposition. After considering the pleadings, exhibits, and applicable
law, the Court now rules pursuant to Local Rule 105.6 (D. Md. 2016), as a hearing is deemed
unnecessary. For reasons to follow, Johnson’s Motion for Summary Judgment will be
GRANTED with regard to imposition of liability in an official capacity, but otherwise DENIED.
BACKGROUND
Fisher provides the following information in support of his claims. On April 4, 2014,
while housed at Patuxent Institution, he received an infraction alleging he had diluted a urine
specimen. Although Fisher was found not guilty of the infraction in a formal disciplinary
hearing convened on April 16, 2014, he nonetheless received disciplinary sanctions from
Assistant Warden James Flood.7 ECF 1-1 at p. 1. Fisher filed an Administrative Remedy
Procedure (“ARP”) complaint against Flood and Johnson to protest the imposition of sanctions
after a “not guilty” finding regarding the infraction. ECF 1-1 at p. 12.
While the ARP complaint was pending, in late June of 2014, Fisher was offered a
position at Patuxent’s Maryland Correctional Enterprises (“MCE”) industrial shop based on
approval by classification personnel and Warden Patricia Gains-Johnson. Fisher alleges that
Johnson sent an email to MCE manager Charles Behnke disapproving the hiring decision, and
the job offer was withdrawn. Between that time and June 25, 2015, Fisher attempted to obtain
5

This opinion references the pagination assigned by the Court’s electronic docket system.

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A Declaration attesting to Fisher’s good conduct while incarcerated was submitted by his father, Steven D. Shick,
ECF 33. While not directly relevant to the outcome of the case, the Declaration has been docketed as
correspondence. Fisher also appends the Declaration as a Supplement to his opposition response. ECF 35.

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Flood is not named as a party in this action.

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other prison jobs at MCE, and also applied for positions in the ID Room and the school. Fisher
claims that each supervisor was told by Johnson to withhold positions from Fisher. He claims
that School Director Nadine Snowden was told by Johnson that hiring Fisher would lead to
retaliation against her department. ECF 1 at p. 2.
Johnson was promoted to Director for Security Operations for Maryland’s Department of
Public Safety and Correctional Services (“DPSCS”), and was no longer stationed at Patuxent.
On June 25, 2015, following Johnson’s departure, Fisher was hired to work at MCE. A few
months later, Johnson was demoted and returned to Patuxent as Chief of Security. Johnson’s
return had no immediate impact on Fisher’s job.
On May 10, 2016, Fisher mailed a Maryland Tort Claim via certified mail against
Johnson alleging retaliation resulting in his inability to secure a prison job as well as
interference with legal mail. The paperwork was received by the State Treasurer’s Office on
May 17, 2016. ECF 1-1 at pp. 8-10. Two days later, on May 19, 2016, Fisher was placed on
Administrative Segregation by Johnson pending an investigation as to whether Fisher was
dangerous to the security of the institution, other prisoners, or staff. Id. at p. 11. As of the
filing of his Complaint on June 9, 2016, Fisher remained on administrative segregation and had
been transferred to NBCI. He was not charged with institutional rule violations. Fisher states
that he has maintained a clean institutional record during his 20 years of incarceration, held a
“premier job,” within the DOC, and had participated in “multiple volunteer activities.” ECF 1
at p. 4. Fisher contends that Johnson’s retaliation is an attempt to deprive him of his First
Amendment rights and undertaken to punish him for using the ARP process and filing various
actions in the courts or State administrative agencies.
A. Defendant’s Response

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Johnson provides no discussion or documentation regarding the hearing officer’s
determination that Fisher was not guilty of diluting a urine sample. Johnson also provides no
discussion or affidavit refuting Fisher’s claim that he overrode the June 2014 decision made by
classification personnel and/or the warden approving Fisher for the MCE job, and he makes no
effort to assure this Court that such action was warranted. Similarly, no investigatory findings
accompany Johnson’s notice of assignment to administrative segregation (ECF 28-2 at p. 3),
no explanation is provided as to why Fisher was not charged with an infraction for “trying to
initiate a riot, and no rationale is provided to explain why Fisher was transferred from a
maximum-security therapeutic setting to the highly restrictive NBCI.
B. Plaintiff’s Opposition
In his opposition response, Fisher denotes the restrictions placed on NBCI prisoners who
are on administrative segregation. Fisher also states that Johnson’s suspicion that he wanted to
start a riot in Patuxent’s dining room has been converted into fact, without any adjustment
adjudication. ECF 34-1 at pp. 6-7.
STANDARD OF REVIEW
When a defendant seeks dismissal or, in the alternative, summary judgment, the Court
may use its discretion, under Rule 12(d), to determine whether to consider matters
outside the pleadings. See Kensington Volunteer Fire Dep’t., Inc. v. Montgomery Cty., 788
F.Supp.2d 431, 436–37 (D. Md. 2011), aff’d sub nom., Kensington Volunteer Fire Dep’t., Inc.
v. Montgomery Cty., 684 F.3d 462 (4th Cir. 2012). Pursuant to Rule 12(d), “[w]hen matters
outside the pleading are presented to and not excluded by the court, the 12(b)(6) motion shall
be treated as one for summary judgment and disposed of as provided in Rule 56.” Laughlin v.

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Metro. Wash. Airports Auth., 149 F.3d 253, 260–61 (4th Cir. 1998) (quoting Fed. R. Civ. P.
12(d)).
The United States Court of Appeals for the Fourth Circuit has outlined two
requirements for when a motion to dismiss may be converted to a motion for summary
judgment: (1) the “parties [must] be given some indication by the court that it is treating the
12(b)(6) motion as a motion for summary judgment” and (2) “the parties ‘first [must] be
afforded

a

reasonable opportunity for discovery.’”

Greater Balt. Ctr. for Pregnancy

Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir. 2013) (quoting Gay v. Wall,
761 F.2d 175, 177 (4th Cir. 1985)). When the motion is expressly captioned as a motion to
dismiss or in the alternative a motion for summary judgment and matters outside of the
pleadings are submitted, the parties are deemed to have sufficient notice that conversion may be
granted. See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D. Md. 2005). “[T]he party opposing
summary judgment ‘cannot complain that summary judgment was granted without discovery
unless that party has made an attempt to oppose the motion on the grounds that more time
was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244
(4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th
Cir. 1996). Here, Fisher has not filed an affidavit or otherwise requested discovery, other than
the materials that have been made available to him.
In light of the foregoing, the Court is satisfied that it is appropriate to address Johnson’s
dispositive Motion as one for summary judgment, because matters outside of the pleadings will
be considered.
Under Fed. R. Civ. P. 56(a), the Court must grant summary judgment if the moving
party demonstrates there is no genuine issue as to any material fact, and the moving party

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is entitled to judgment as a matter of law. In reviewing a motion for summary judgment,
the Court must draw all justifiable inferences in favor of the non-movant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 15859 (1970)). Once a motion for summary judgment is properly made and supported, the
opposing party has the burden of showing that a genuine dispute exists. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Whether a fact is

considered to be “material” is determined by the substantive law, and “[o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson, 477 U.S. at 248; accord Hooven-Lewis,
249 F.3d at 265.
ANALYSIS
Johnson seeks summary judgment in his favor based on the affirmative defenses of
sovereign immunity and qualified immunity, and also argues that Fisher has failed to establish a
retaliation claim.
A.

Affirmative Defenses
1.

Sovereign Immunity

When an individual is sued in his official capacity, the suit is essentially against the
governmental entity. Kentucky v. Graham, 473 U.S. 159, 165–66 (1985); Hafer v. Melo, 502
U.S. 21, 25 (1991) (noting that official-capacity suits “generally represent only another way of
pleading an action against an entity of which an officer is an agent”). Under Eleventh
Amendment jurisprudence, “a suit against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official’s office. As such, it is no different
from a suit against the State itself.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71

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(1989). Therefore, official capacity claims are subject to sovereign immunity under the Eleventh
Amendment. Graham, 473 U.S. at 167; accord Hafer v. Melo, 502 U.S. 21, 25 (1991).
As the Supreme Court explained in Graham, 473 U.S. at 165: “Personal-capacity suits seek
to impose personal liability upon a government official for actions he takes under color of state law.
Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action
against an entity of which an officer is an agent.’” (quoting Monell v. N.Y.C. Dept. of Soc. Servs., 436
U.S. 658, 690, n. 55 (1978)) (citations omitted); see also, e.g., Huggins v. Prince George’s Cnty., 683
F.3d 525, 532 (4th Cir. 2012) (treating suit against individuals in official capacity as suit against
county). Therefore, states and their officers, sued in their official capacities, are not “persons”
subject to suit for money damages under 42 U.S.C. § 1983. Will, 491 U.S. at 71.

Absent waiver, sovereign immunity shields a governmental entity from suit. Federal
Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). While the State of Maryland has waived
its sovereign immunity for certain types of cases brought in state courts, see Md. State Gov't
Code Ann., ' 12-202(a), it has not waived its immunity under the Eleventh Amendment to suit
in federal court. To the extent that Fisher seeks damages from Johnson in his official capacity,
Johnson is immune from such damages. See Fed. Mar. Comm’n v. S. C. State Ports Auth., 535
U.S. 743, 760 (2002); Brandon v. Holt, 469 U.S. 464, 471-72 (1985). Johnson is entitled to
summary judgment in his favor in regard to all claims against him in his official capacity.8
2.

Qualified Immunity

Defendant also asserts entitlement to qualified immunity, arguing that his conduct did not
violate any clearly established constitutional right of which a reasonable public official should
have known. See Harlow v. Fitzgerald, 457 U.S. 800 (1982); see also Iko v. Shreve, 535 F.3d
225, 238 (4th Cir. 2008) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Qualified
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The record does not reflect whether Fisher filed a state tort claim, and if so, the outcome of that proceeding.

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immunity is an ‘“immunity from suit rather than a mere defense to liability’ . . . .” Ussery v.
Mansfield, 786 F.3d 332, 337 (4th Cir. 2015) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)) (emphasis in Mitchell), and shields government officials who commit constitutional
violations but who, “in light of clearly established law, could reasonably believe that their
actions were lawful.” Hunter v. Town of Mocksville, N.C., 789 F.3d 389, 401 (4th Cir. 2015)
(internal quotations omitted); see also Scinto v. Stansberry, ___ F.3d ___, 2016 WL 6543368, at
*10 (4th Cir. Nov. 4, 2016). Thus, “a government official who is sued in his individual capacity
may invoke qualified immunity.” Bland, 730 F.3d at 391; see Harlow, 457 U.S. at 818.9
Qualified immunity turns on the “objective reasonableness of an official’s conduct, as
measured by reference to clearly established law,” Harlow, 457 U.S. at 818, and so an officer
who makes an honest but objectively unreasonable mistake is not protected by qualified
immunity. It protects officials “‘who commit constitutional violations but who, in light of clearly
established law, could reasonably believe that their actions were lawful.’” Williams v. Ozmint,
716 F.3d 801, 805 (4th Cir. 2013) (quoting Purnell, 652 F.3d at 531 (4th Cir.)); accord Durham
v. Horner, 690 F.3d 183, 188 (4th Cir. 2012). In other words, qualified immunity “‘gives
government officials breathing room to make reasonable but mistaken judgments about open
legal questions.’” Lane v. Franks, ––– U.S. –––, 134 S. Ct. 2369, 2381 (2014) (quoting Ashcroft
v. al-Kidd, 563 U.S. 731, 743 (2011)). However, “[b]ecause an official ‘who performs an act
clearly established to be beyond the scope of his discretionary authority is not entitled to claim
qualified immunity,’ the defendant bears the initial burden ‘of demonstrating that the conduct of
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The defense of qualified immunity does not apply to claims for injunctive or declaratory relief. See Pearson v.
Callahan, 555 U.S. at 242-43 (affirming that defendants may not seek qualified immunity “in cases in which that
defense is not available, such as … § 1983 cases against individuals where injunctive relief is sought instead of or in
addition to damages”); Lefemine v. Wideman, 672 F.3d 292, 303-04 (4th Cir.) (“Claims for declaratory and
injunctive relief are not affected by qualified immunity.”), rev’d on other grounds, –– U.S. ––, 133 S. Ct. 9 (2012);
accord Vollette v. Watson, 937 F. Supp. 2d 706, 720 (E.D. Va. 2013). Fisher seeks injunctive relief to bar future
retaliation or transfer without cause and a declaration that Johnson’s actions against him violated his constitutional
rights. ECF 1 at p. 5.

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which the plaintiff complains falls within the scope of the defendant’s duties.’” Henry v.
Purnell, 501 F.3d 374, 377 n.2 (4th Cir. 2007) (en banc); see also, e.g., Holloman ex rel.
Holloman v. Harland, 370 F.3d 1252, 1265-66 (11th Cir. 2004).
In Scinto, supra, at *10, the Court explained: “In determining whether defendant
government officials are protected by qualified immunity, the court considers both ‘whether a
constitutional right [was] violated on the facts alleged’ and ‘whether the right was clearly
established’ at the time of the conduct in question.” (Citations omitted.) Thus, the qualified
immunity analysis involves two inquiries: (1) whether the facts alleged, “[t]aken in the light most
favorable to the party asserting the injury, . . . show the officer’s conduct violated a constitutional
right,”

Saucier, supra, 533 U.S. at 201; and (2) whether the right at issue “‘was clearly

established in the specific context of the case—that is, [whether] it was clear to a reasonable
officer that the conduct in which he allegedly engaged was unlawful in the situation he
confronted.’” Merchant, supra, 677 F.3d at 662 (quoting Figg v. Schroeder, 312 F.3d 625, 635
(4th Cir. 2002)); see Owens, supra, 767 F.3d at 395-96. The “two inquiries . . . may be assessed
in either sequence.” Merchant, 677 F.3d at 661-62; accord Pearson, 555 U.S. at 236 (judges
may exercise discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first).
The second inquiry “turns on the ‘objective legal reasonableness’ of the action, assessed
in light of the legal rules that were ‘clearly established’ at the time it was taken.” Messerschmidt
v. Millender, ––– U.S. –––, 132 S. Ct. 1235, 1245 (2012) (citing Creighton, 483 U.S. at 639). If
the law at the time of the alleged violation was not “clearly established,” the official will be
entitled to qualified immunity, because “an official could not reasonably be expected to
anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law

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forbade conduct not previously identified as unlawful.” Harlow, 457 U.S. at 818. On the other
hand, “[i]f the law was clearly established, the immunity defense ordinarily should fail, since a
reasonably competent public official should know the law governing his conduct.” Id. at 818-19.
To determine whether the right was clearly established, the court first must define the
right at issue. Scinto, supra, at *10; Occupy Columbia, 738 F.3d at 118. “A right is clearly
established only if its contours are sufficiently clear that ‘a reasonable official would understand
that what he is doing violates that right.’” Carroll v. Carman, ––– U.S. –––, 135 S. Ct. 348, 350
(2014) (quoting Creighton, 483 U.S. at 640). “In other words, ‘existing precedent must have
placed the statutory or constitutional question beyond debate.’” Carroll, 135 S. Ct. at 350
(quoting al-Kidd, supra, 563 U.S. at 741).
In determining whether a right was clearly established, courts in this Circuit ‘“ordinarily
need not look beyond the decisions of the Supreme Court, [the Fourth Circuit], and the highest
court of the state in which the case arose,’” as of the date of the conduct at issue. Doe ex rel.
Johnson v. S.C. Dept. of Soc. Servs., 597 F.3d 163, 176 (4th Cir. 2010) (citations omitted).
While a right may be clearly established by any number of sources, there need not be a case
“directly on point . . . .” al-Kidd, 563 U.S. at 741.
To defeat qualified immunity, “‘the existing authority must be such that the unlawfulness
of the conduct is manifest.’” Merchant, 677 F.3d at 665 (quoting Wilson v. Layne, 141 F.3d 111,
114 (4th Cir. 1998)); see Bland, supra, 730 F.3d at 391 (stating that “[f]or a plaintiff to defeat a
claim of qualified immunity, the contours of the constitutional right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right”) (internal
quotations omitted).

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Absent documentation supporting the adverse actions taken against Fisher and an
affidavit attesting to the rationale behind those actions, the Court is unable to undertake the two
inquiries necessary in determining whether Johnson is entitled to qualified immunity. Therefore,
examination of the retaliation claim is required.
B.

Retaliation Claim

In order to prevail on a claim of retaliation, Fisher 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). It is unclear how much of
a showing of adversity must be made in order to survive a motion for summary judgment.
Compare Burton v. Livingston, 791 F.2d 97, 100-101 (8th Cir. 1986) (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). However, 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).
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).

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In the prison context, retaliation claims are treated with skepticism because disciplinary
action taken by prison officials is by definition “retaliatory” if undertaken in direct response to
prisoner misconduct. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996); Adams v. Rice, 40
F.3d 72, 74 (4th Cir. 1994). Here, however, the “ prisoner misconduct” is not apparent, both in
the context of Fisher’s adjustment outcome regarding urinalysis and with regard to his transfer
and long-term placement on administrative segregation. Defendant provides no explanation
regarding the decisions adversely affecting Fisher; therefore, this Court cannot conclude on the
record before it that those actions were not retaliatory.
CONCLUSION
In sum, Johnson has failed to provide evidence sufficient to support his claim to qualified
immunity or to refute Fisher’s claims of retaliation with regard to his removal from a prison job,
placement on administrative segregation, or the classification decision to transfer Fisher from
Patuxent Institution to NBCI.

Johnson shall be granted an opportunity to supplement his

dispositive motion, and Fisher shall be provided an opportunity to further respond to that
supplementation. A separate Order follows.

_April 28, 2017___
Date

___/s/_____________________
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

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