Allen v. Bishop et al

Filing 24

MEMORANDUM. Signed by Judge Richard D. Bennett on 9/14/2017. (c/m 9/15/17)(krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LA WRENCE KENNETH ALLEN, II

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Plaintiff

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WARDEN FRANK BISHOP, et at.

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Defendants

Civil Action No. RDB-!6-250 I

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MEMORANDUM

Defendants Warden Frank Bishop, Lt Michael Bulger, Officer Brett Payton, Ofticer
David Lepley, Correctional Case Management Specialist Jason McMahan, and Correctional Case
Management Manager Richard Roderick filed a Motion to Dismiss or in the alternative for
Summary Judgment in response to the above-entitled civil rights complaint

ECF 20 and 22. I

Plaintiff was advised of his right to file an Opposition Response to the motion and of the
consequences of failing to do so by letter from the Clerk of this Court. ECF 2 I and 23. He has
filed nothing further in the case and the motion remains unopposed.

For the reasons stated

below, the motion, construed as a Motion for Summary Judgment,2 shall be granted.

Background
Plaintiff Lawrence Kenneth Allen, an inmate committed to the custody of the Maryland
Department of Public Safety and Correctional Services and at all times relevant confined at
North Branch Correctional Institution ("NBC!"), asserts he was "viciously, violently, savagely

Defendants filed a corrected Memorandum in Support which was docketed at ECF 22. Plaintiff was given
a second notice to file an Opposition Response after it was filed.
2

Defendants' dispositive submission will be treated as a Motion for Summary Judgment under Federal Rule
of Civil Procedure 56 because materials outside the original pleadings have been considered. See Bosiger v. u.s.
Airw'<l~,510 F.3d 442, 450 (4th Cir. 2007).

attacked and assaulted" on June 14,2016, when Lt. Wilt,3 Sgt. Schoeder, Sgt. Bulger, Officers
Crowe, Payton, Lepley and Gilpin entered his cell.
"dragged and stomped" him. Id.

ECF 1 at p. 3. He claims these officers

Although it is not entirely clear from the content of the

complaint, it appears Allen claims the assault occurred following his receipt of a Notice of
Infraction issued by Case Managers Ms. lies4

and Ms. Leese.

Id. He asserts that when the

infraction was issued lies and Leese told him he should not seek assistance from the warden
regarding his "current release situation." Id.
Attached as exhibits to the complaint are documents reflecting that Allen was considered
for restoration of 1436 days of revoked good conduct credits. ECF I-I at p. 7. Staff considering
. the restoration recommended restoration of 180 days of good conduct, noting Allen's "medical
issues and recent writing campaign."

/d.

Allen also attaches an administrative

remedy

procedure complaint ("ARP") in which he addresses Warden Bishop and claims the "allegations
made at [his] restoration hearing were to quote LI. Wilt known to be false." Id. at pp. 5 - 6. He
further complains that Case Management

Manager Richard Roderick was refusing to hold

another restoration hearing. Id. at p. 6.
As reliet: Allen seeks monetary damages and an immediate release from custody. ECF 1
at p. 3.
Defendants assert that there is no record of a Use of Force or Serious Incident involving
Allen on June 14, 2016.

ECF 22 at Ex. I (Declaration of John White, Case Management

Specialist II). There are no reports or daily log entries indicating anything occurred involving

In his supplemental complaint, Allen states that Lt. Wilt was improperly named and that Captain P.H.
Pennington is the correct Defendant.
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Roderick.

In a supplemental complaint Allen slales the correct name for the case managers are 1. McMahan and R.S.
ECF 6.

2

Allen and there arc no medical records within two weeks before, on, or after June 14, 2016,
indicating that Allen requested medical care due to an assault. Id.
Officer Benjamin Crowe asserts that Allen was housed in Housing Unit I during June,
2016. ECF 22 at Ex. 2, ~3 (Declaration of Officer Crowe). Crowe denies assaulting Allen. Id.
at ~4. Officer Brett Payton also denies assaulting Allen. Id. at Ex. 3, ~4 (Declaration of Officer
II Brett Payton).

Officer Andrew Gilpin was not in Housing Unit I on June 14, 2016, and

explains he was assigned to a different duty station. Id. at Ex. 4, ~4 (Declaration of Officer
Andrew Gilpin). Gilpin also denies assaulting Allen as alleged. Id. at ~5. Officer David Lepley
denies assaulting Allen and states he was not even working on June 14, 2016, as it was his
regularly scheduled relief day. Id. at Ex. 5, .~~4 & 5 (Declaration of Officer David Lepley), see
also Ex. I at p. 6 (Post Assignment Worksheet for June 14,2016).
Defendants further state that Allen filed 326 ARPs during his confinement at NBC!. ECF
22 at Ex. I, pp. 7 - 17 (ARP Index). One ARP submitted on June 19, 2016, alleged that Allen
was being threatened and harassed by Officer Payton. Id. at ~ 7. Allen was directed to resubmit
the complaint with details concerning the allegation such as the date and time of the alleged
conduct and information regarding the harassment.
as directed, it was dismissed.

Id. When Allen failed to resubmit the ARP

Id. Notwithstanding Allen's penchant for filing ARPs, he did not

file one alleging he was assaulted on June 14,2016.
Richard Roderick states that he attended a hearing regarding restoration of good conduct
credit for Allen, as the Warden's

designee, on October 18, 2012.

ECF 22 at Ex. 6, ~ 5

(Declaration of Richard Roderick). The team considering restoration included Jason McMahon,
Lt. Pennington, and Case Management Specialist Charlotte Zeis.

Id. at ~7.

Roderick and

McMahon assert that all of the information considered for the hearing and documented on the

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Case Management Sheet was true and was gathered from Allen's institutional basefile and
OBSCIS.

ECF 22 at Ex. 6, ~ 6 and 7, ~ 6 (Declaration of Jason McMahon).

Based on that

infornmtion, the team recommended restoration of 180 days of good conduct credit. ECF 22 at
Ex. 6,

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9.

Roderick,

recommendation.

who was Acting Assistant

Warden at the time, approved

the

Id.
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 oflaw.
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. '"

Boucha/ v. Bal/imore Ravens FDa/bali Club,

Inc., 346 F.3d 514, 522 (4th CiT. 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 Colle/on Med, Ctr., Inc., 290 F.3d 639, 644-45 (4th CiT. 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." Boucha/, 346 F.3d at 526 (internal
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quotation marks omitted) (quoting Drewill v. Prall, 999 F.2d 774, 778-79 (4th Cir. 1993), and
citing Celotex Corp. v. Catrell, 477 U.S. 317, 323-24 (1986)).
Analysis
Whether force used by prison officials was excessive is determined by inquiring if "force
was applied in a good-faith

effort to maintain or restore discipline,

or maliciously

and

sadistically to cause harm." Hudson v. McMillian, 503 U. S. 1,6-7 (1992). This court must look
at the need for application of force; the relationship between that need and the amount of force
applied; the extent of the injury inflicted; the extent of the threat to the safety of staff and inmates
as reasonably perceived by prison officials; and any efforts made to temper the severity of the
response.

Whitley v. Albers, 475 U.S. 312, 321 (1986). The absence of significant injury alone

is not dispositive of a claim of excessive force.

Wilkins v. Gaddy, 559 U.S. 34 (2010).

The

extent of injury incurred is one factor indicative of whether or not the force used was necessary
in a particular situation, but if force is applied maliciously and sadistically liability is not avoided
simply because the prisoner had the good fortune to escape serious harm. ld. at 38.
The undisputed record evidence establishes that there is no objective indication that Allen
was assaulted as alleged in the complaint. In the face of Defendants' denials, Allen has remained
silent and has not forecast any relevant, objective evidence in support of his unverified
complaint.
To the extent the complaint raises a claim regarding the propriety of the decision to
restore only a portion of good conduct credits revoked, the claim is time-barred.

"Section 1983

provides a federal cause of action, but in several respects relevant here, federal law looks to the
law of the State in which the cause of action arose.

This is so for the length of the statute of

limitations: it is that which the State provides for personal-injury torts."

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Wallace v. Kato, 549

U.S. 384,387

(2007) (citing Owens v. Okure, 488 U.S. 235, 249-50 (1989)).

applicable statute of limitations is three years from the date of the occurrence.
Ann., Cts & Jud. Proc.

S

5-101.

hi Maryland, the
See Md. Code

The decision regarding restoration of credits occurred on

October 18, 2012; the complaint was filed on July 5, 2016, more than three years after the
decision was made.
Notwithstanding the untimeliness of the claim, sentence and diminution credit calculation
issues are matters of state law and do not state a federal constitutional claim.

See McCray v.

Rosenblatt, 1994 WL 320212 (4th Cir. July 6, 1994) (per curiam) (unpublished); see also Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991); Pringle v. Beta, 424 F.2d 515, 516 (5th Cir. 1970).
A separate Order granting summary judgment in favor of Defendants follows.

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5fV,Bl"'IW',t- I Y, ~ ot?
Date

RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

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