Dicks v. Bishop et al

Filing 60

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 9/17/2021. (jb5, Deputy Clerk)(c/m-09/17/2021)

Case 1:17-cv-02554-GLR Document 60 Filed 09/17/21 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANDREW JOSEPH DICKS,
Plaintiff,

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v.

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WARDEN FRANK BISHOP, JR., et al.,

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Defendants.

Civil Action No. GLR-17-2554

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MEMORANDUM OPINION

THIS MATTER is before the Court on the Motion to Dismiss, or in the Alternative,
for Summary Judgment filed by Defendants Frank B. Bishop, Jr., Warden at the North
Branch Correctional Institution (“NBCI”); Jeff Nines, NBCI Assistant Warden; Robin
Wolford, Deputy Director of the Inmate Grievance Office (“IGO”); Jason Harbaugh, NBCI
Captain; April Carr, NBCI Sergeant; Charlotte Zies, NBCI Correctional Case Management
Specialist II (“CCMS II”); and Andrew McKinney, Irvin Murray, and Jeffrey Grabenstein,
NBCI Correctional Officers (collectively, “State Defendants”). 1 (ECF No. 43). Former
Commissioner Patricia A. Moore joins in the Motion. (See ECF No. 59). 2 The Motion is
ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2021). For

1

Lt. Bradley Wilt, C.O. II Bennett, Property Officer, and Mailroom Clerk Mary
Jane Rose, have not been served with the Complaint, and the Complaint will be dismissed
against them for that reason. Even if Wilt, Bennett, and Rose were served, the Court would
dismiss the Complaint against them pursuant to 28 U.S.C. § 1915(a) for failure to state a
claim for the reasons set forth in Sections II.C.2–5, infra.
2

The Clerk shall amend the docket to reflect the full and correct names of
Defendants.

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the reasons outlined below, the Court will grant State Defendants’ Motion, construed as
one for summary judgment.
I.
A.

BACKGROUND

Plaintiff’s Allegations
Plaintiff Andrew Joseph Dicks is a state prison inmate presently housed at Jessup

Correctional Institution, in Jessup, Maryland. (Jason Harbaugh Decl. [“Harbaugh Decl.”]
¶ 3, ECF No. 43-5). He alleges that while confined at NBCI in Cumberland, Maryland, the
conditions of his confinement violated his rights under the First, Fourth, Eighth, and
Fourteenth Amendments. (Compl. at 3, 3 ECF No. 1). 4
1.

Tampering with Plaintiff’s Money Order

Dicks alleges that former mailroom employee Mary Jane Rose mishandled his
mail, impeding his access to the courts. (Id. at 4–5). Specifically, he contends that in
February 2015, Rose failed to properly handle a money order he sent to an attorney. (Id.).
Afterward, Defendant Harbaugh interviewed Dicks and advised him that if he “signed off”
on a Request for Administrative Remedy complaint (“ARP”), Dicks would be permitted to
mail the money order back to the company where he bought it for a full refund. (Id. at 5).
Dicks claims that Rose held the money order for an additional three months and when he
asked for reimbursement for the money order, she refused because he was not the purchaser
of the money order. (Id.). Dicks claims that Rose held his mail in retaliation and also claims

3

Citations to page numbers refer to the pagination assigned by the Court’s Case
Management/Electronic Case Files (“CM/ECF”) system.
4
Dicks’ claims against medical providers were previously resolved by this Court.
(See ECF Nos. 48, 49).
2

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that Rose violated Department of Public Safety and Correctional Services (“DPSCS”) mail
policies. (Id. at 7, 10). He claims that his ARP and ARP appeal regarding this matter were
dismissed. (Id. at 7–9). At the time he filed the complaint, Dicks was still awaiting
reimbursement for the money order. He also claims that his criminal appeal was dismissed
because his legal mail was not given to him. (Id. at 10).
2.

Interfering with Plaintiff’s Medical Care

Dicks claims that Defendants Nines, Wilt, and Bennett, along with Sergeant Jane
Puffenbarger, interfered with his medical treatment for sores and lesions on his body
including a recurring itchy facial rash. (Id. at 10). Dicks states that he needs to use beard
trimmers more than once a month to assist him with managing his skin problem and to
deter the rash, but Defendants denied his request to do so. (Id. at 11). He filed a grievance
numbered ARP-NBCI-1512-15 regarding his need to use trimmers more frequently. (Id. at
11–15).
3.

Injuries Arising from Sleeping Arrangements

Dicks asserts that Defendants Bishop and Nines have a policy that provides a chair
to inmates in the general population to facilitate access to the top bunk, but denies such
assistance to inmates assigned to disciplinary or administrative segregation (hereafter,
“segregation inmates”). (Id. at 17). On July 4, 2015, Dicks slipped while accessing the top
bunk, injuring his neck and shoulder and exacerbating a pre-existing back injury. (Id.).
Dicks filed an ARP that was found to be meritorious in part, but the IGO dismissed his
grievance. (Id.).

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Dicks states that he was denied treatment following his injury, but that Bishop and
Nines maintain that he declined treatment. (Id. at 18). Dicks counters that if he had declined
treatment, he would have had to sign a Release of Responsibility form, which he did not
do. (Id.). He alleges that Warden Bishop and Assistant Warden Nines allowed Wexford to
violate his right to medical care under the Eighth Amendment. (Id. at 17–20).
4.

Harm Relating to NBCI Bathroom Policies

Dicks states that inmates are denied access to a toilet and sink during their recreation
time in the prison yard. (Id. at 20). He also complains that inmates must shower and use
the telephone within the one hour and fifteen minute recreation period, causing him to
“[forfeit] his [First Amendment] right to intimate association” with his family on the
telephone and his right to shower if he wishes to use the toilet during that period of time.
(Id.). Dicks further alleges that the failure to provide toilets and sinks in the prison yard
violates his rights under the Eighth Amendment because he has a right to sanitary
conditions. (Id.).
Dicks has an enlarged prostate that causes him both an inability to hold his urine
and need to urinate frequently. (Id. at 22). On February 6, 2016, Dicks was denied access
to a toilet and was told by an unidentified correctional officer that he would have to wait
for the next shower change to “lock in” to use the toilet. (Id. at 21). Dicks asked if he could
use the “holding cell” bathroom, which was empty and only fifteen feet away, but was
refused. (Id.). As a result, Dicks “was forced to relieve himself in his pants.” (Id.). On
August 11, 2016, Dicks urinated on himself again after being denied bathroom access. (Id.

4

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at 22). Dicks filed an ARP regarding these incidents, but it was denied, and the IGO
dismissed his grievance. (Id. at 21–22).
5.

Interfering with Plaintiff’s Religious Practices

During Ramadan in 2016, correctional officers stopped Dicks and other inmates and
told them they could not enter Ramadan services unless they allowed the officers to
confiscate religious items which the officers deemed inappropriate, including “Message to
the Black Man,” “Theology of Time,” and the “Final Call” newspaper. (Id. at 24). Dicks
states the books are from the Nation of Islam and the literature was approved by prison
administration for Muslim inmates to order. (Id.). Dicks filed an ARP regarding the issue,
but Nines dismissed the claim, stating that Dicks brought “non-allowable items” to the
service. (Id. at 25). The IGO also dismissed his grievance. (Id.). Dicks argues that the
administration should not be permitted to tell Muslim inmates what they can study. (Id. at
24).
6.

Improperly Labeling Plaintiff

Dicks states that he was “flagged” as a member of a security threat group (“STG,”
i.e., a gang) and Harbaugh had a “duty” to tell him he was flagged. (Id. at 26). He also
states that Defendant Zies had a duty to inform him that he was the subject of a Prison Rape
Elimination Act (“PREA”) alert. (Id.).
As to the STG designation, Dicks states that Harbaugh lied when he told the
Commissioner’s Office that he interviewed Dicks. (Id. at 27). Dicks states that he was
flagged as a member of the Black Guerrilla Family (“BGF”) gang when he tried to move
into a cell with a fellow inmate. (Id. at 26). Dicks filed an ARP regarding these issues on
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February 11, 2016, which was found to be meritorious in part by the Commissioner. (Id. at
26–27). Dicks states that Harbaugh wrote a false report and that this was another example
of the wardens ignoring meritorious ARPs. (Id. at 27). He claims the STG flag prevented
him from contact visits with his children and grandchildren. (Id.). He also states that he is
escorted through general population in handcuffs, which puts him at a risk of harm. (Id.).
Dicks asserts that Harbaugh and Nines stated he was “screened” for PREA on May
14, 2014, which was the same day Dicks was given a Maximum II security classification
without an interview. (Id. at 28). He states that Zies prepared a declaration relating to these
dates in a separate lawsuit. (Id.). On May 5 and 6, 2015, Harbaugh and Nines agreed that
Dicks should be removed from the behavioral management program and placed in Housing
Unit 2 with the general population. (Id.). Dicks states that he has a liberty interest in not
being labeled a rapist and that the label places his safety in jeopardy. (Id.). Dicks filed an
ARP and a grievance with the IGO regarding this issue. (Id. at 28–29).
B.

Defendants’ Response
1.

Tampering with Plaintiff’s Money Order

On February 11, 2015, Dicks voluntarily withdrew ARP No. NBCI-0291-15, which
related to NBCI mishandling his money order. (Harbaugh Decl. ¶ 4; Money Order Rs. at
1, 6, ECF No. 43-6). 5 Harbaugh avers that he did not convey or promise to Dicks that he
would be allowed to return the money order for a refund in exchange for withdrawing the

5

For the reasons set forth in Section II.A, infra, the Court will treat Defendants’
Motion as a motion for summary judgment under Federal Rule of Civil Procedure 56.
Accordingly, the Court will consider documents outside Dicks’ Complaint in resolving the
Motion.
6

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ARP. (Harbaugh Decl. ¶ 5). On June 9, 2015, Dicks filed ARP No. NBCI-1103-15, in
which he again alleged that Rose mishandled his money order. (Rose ARP at 1, ECF No.
43-7). NBCI dismissed the ARP for procedural reasons upon finding that the issue was
previously resolved and repetitive of ARP No. NBCI-0291-15. (Id.).
Joseph Cutter, NBCI Investigation Captain, explains that incoming and outgoing
mail received by the NBCI mailroom is processed in accordance with approved policies
and DPSCS directives. (Joseph Cutter Decl. ¶ 3, ECF No. 43-8). According to Cutter,
Dicks’ mail was not withheld in retaliation, delayed, or not processed, providing that the
mail was in compliance with approved policies and directives of DPSCS. (Id. ¶ 4).
All legal mail at NBCI is logged and forwarded to the proper housing unit for
delivery to the inmate. (Id. ¶ 5). The “Legal Mail Log” is maintained by mailroom staff,
who document the name and Division of Correction (“DOC”) identification number of the
inmate receiving the mail, the name of the sender, the date the mail was received at the
institution, and the signature of the inmate receiving and accepting the mail. (Id.). Only
incoming mail is logged. (Id.). No outgoing mail, including legal mail, is logged. (Id.).
Cutter avers that to the best of his knowledge, no mailroom employee hindered the delivery
or sending of Dicks’ mail; rather, Dicks’ mail was received and handled like all other mail
at the institution. (Id. ¶ 6; see also Executive Directive No. OPS.250.0001 at 3–11, ECF
No. 43-9 (describing procedures for handling inmate mail)).
2.

Interfering with Plaintiff’s Medical Care

Bishop asserts that as Warden, his responsibility is solely to act as chief
administrator of NBCI. (Frank Bishop Decl. [“Bishop Decl.”] ¶ 4, ECF No. 43-11). In that
7

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capacity, he oversees the administration of personnel and programs to ensure the safe,
efficient, and lawful functioning of the facility. (Id.). In the Maryland prison system,
medical care is provided to inmates by private health care contractors. (Id. ¶ 5). It is beyond
the scope of Bishop’s duties and responsibilities to perform any medical, dental, or mental
health treatment, or to prescribe a particular course of treatment. (Id. ¶¶ 6–7). Further,
Bishop does not have the authority to dictate the type of medical treatment an inmate is to
receive or to influence the medical decisions of health care providers. (Id.). He maintained
that he did not involve himself in, interfere with, or delay the medical care provided to
Dicks. (Id. ¶ 8). Further, Bishop states that he has no knowledge of any staff becoming
involved in, interfering with, or delaying medical care to Dicks. (Id. ¶ 10).
On July 26, 2015, Dicks filed ARP No. NBCI-1512-15, in which he asserted that he
was placed on segregation on June 29, 2015, and that although he provided a doctor’s order
to be able to use trimmers on his face due to a skin condition, he was not permitted to do
so. (July 2015 Beard Trimmer ARPs at 1, ECF No. 43-12). Specifically, he alleged that on
Mondays and Thursdays, when other inmates were permitted to shave using a razor—
which Dicks states he cannot use due to his skin condition—Puffenbarger and Bennett
denied him access to a beard trimmer. (Id.).
The ARP was dismissed on July 28, 2015 with a notation that Dicks may resubmit
his complaint and answer certain clarifying questions, including whether the doctor’s order
was written while he was on disciplinary status and whether trimmers were allowable
property for segregation inmates. (Id.). The dismissal also instructed Dicks to provide a

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sheet listing allowable property for segregation inmates and to advise whether he was given
“the opportunity to attend barbershop/face trim once a month.” (Id.).
After Dicks resubmitted the ARP, NBCI investigated his allegations and on August
17, 2015, dismissed the complaint without merit. (Id. at 4). NBCI’s investigation found
that Dicks’ medical records indicated it was recommended that he shave less to relieve the
irritation shaving caused due to his skin. (Id. at 4, 8–9). Additionally, Housing Unit 1
offered beard trimming with electric clippers once per month during scheduled haircuts
and, as such, Dicks had the opportunity to receive reasonable beard maintenance. (Id. at 4).
Dicks appealed, and the DOC dismissed the appeal on October 21, 2015. (Id. at 10–11).
On August 26, 2015, Dicks filed ARP No. NBCI-1853-15 alleging that Zies failed
to properly investigate ARP No. NBCI-1512-15 regarding the use of beard trimmers.
(August 2015 Beard Trimmer ARPs at 1, ECF No. 43-13). Finding that Dicks’ allegations
were “without merit,” Nines dismissed the ARP on September 3, 2015, and advised Dicks
that he needed to address his dissatisfaction with the dismissal of ARP No. NBCI-0151215 not through the NBCI ARP department, but with Headquarters through the appeal
process. (Id.). Dicks appealed Nines’ decision and the DOC dismissed the appeal. (Id. at
11–12). The DOC decision noted that NBCI did not violate the doctor’s order and that no
additional action was warranted through the ARP process. (Id. at 12).
3.

Injuries Arising from Sleeping Arrangements

According to Harbaugh, in the absence of a doctor’s order requiring an inmate to be
assigned to a bottom bunk for medical reasons, NBCI inmates may be assigned to either a
top or bottom bunk. (Harbaugh Decl. ¶ 6). Inmates assigned to top bunks are instructed to
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climb carefully in and out of the bunk at the back of the bunk. (Id.). NBCI provided general
population inmates one plastic chair per cell for use in the cell or while participating in
indoor recreation. (Id. ¶ 7). Due to security concerns, NBCI does not provide plastic chairs
to segregation inmates. (Id.).
On July 18, 2015, Dicks filed ARP No. NBCI-1468-15, in which he alleged that he
slipped and injured his shoulder getting into his top bunk and had not yet been seen by a
physician. (Bed ARP Rs. at 1, ECF No. 43-14). NBCI investigated the ARP and dismissed
it as without merit on August 15, 2015. (Id.). The investigation found that Dicks saw a
nurse on July 4, 2015 and an x-ray was ordered. (Id.). He received the x-ray on July 8,
2015, and though Dicks had a follow-up appointment the following day, he declined to be
seen. (Id.). 6 Dicks eventually saw a provider on July 28, 2015, who advised him of his xray results and recommended he request yoga books from the library. (Id.). Dicks’ x-rays
showed mild degenerative changes in his right shoulder, but there was no evidence of acute
fracture, dislocation, subluxation, or any significant abnormality. (Id. at 9).
On August 24, 2015, Dicks appealed the dismissal of the ARP. (Id. at 15). The DOC
found his appeal meritorious in part because the ARP response failed to fully respond to
Dicks’ complaints. (Id. at 13–19; Bishop Decl. ¶ 9). On December 23, 2015, Bishop sent a
compliance memorandum to Patricia Moore, DOC Acting Commissioner, assuring her that
he would fully respond to future ARP complaints. (Bed ARP Rs. at 13). The DOC noted,

6

According to Harbaugh, NBCI advises inmates that refusing to attend scheduled
medical/dental passes as directed by staff may result in a disciplinary adjustment.
(Harbaugh Decl. ¶ 11). Inmates are required to report for their passes and then can sign off
the appointment. (Id.).
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however, that Dicks had been seen by medical staff, that an x-ray showed no significant
abnormalities, and that Dicks had declined follow-up. (Bed ARP Rs. at 16). The appeal
investigation also noted that the provider’s assessment and plan did not include an order
for bottom bunk status and that no such order existed. (Id.).
4.

Harm Relating to NBCI Bathroom Policies

Bishop asserts that inmates at NBCI are provided recreation in accordance with the
DPSCS Executive Directive for Inmate Recreation Programs. (Bishop Decl. ¶ 11; see
generally Executive Directive No. OPS.145.0001, ECF No. 43-15). Recreation is not
mandatory. (Bishop Decl. ¶ 11). The NBCI Inmate Handbook informs inmates that they
must stay in the courtyard until the conclusion of the recreation period. (Id.). Dayroom
recreation that is conducted within the housing unit is structured by the individual housing
unit’s staff and opportunities for inmates to return to their cells varies by unit. (Id.).
On February 8, 2016, Dicks filed ARP No. NBCI-0346-16, complaining that he
urinated on himself during recreation on February 6, 2016. (Feb. 2016 Restroom ARPs at
1, ECF No. 43-16). Dicks resubmitted the ARP on February 12, 2016. (Id. at 3). Nines
dismissed the ARP, finding that as substantiated by two Matters of Record, inmates in
Housing Unit 3 were provided an opportunity to return to their cells at least every fifteen
minutes when the showers are being emptied and filled. (Id.). Thus, NBCI found that Dicks
failed to return to his cell when given the opportunity and further failed to provide any
evidence to substantiate his claim. (Id. at 1, 3, 5–9). The DOC subsequently dismissed
Dicks’ appeal. (Id. at 11–13).

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On August 15, 2016, Dicks filed ARP No. NBCI-1842-16, in which he again alleged
that he was forced to urinate on himself after being denied bathroom access during indoor
recreation. (Aug. 2016 Restroom ARPs at 1, ECF No. 43-17). NBCI investigated the
allegations and dismissed the ARP as without merit. (Id.). Video footage reviewed during
the investigation showed Dicks standing in front of a hot pot and throwing water on his
shirt and shorts in an attempt to appear as through he had urinated on himself. (Id.).
Additionally, staff on duty reported that Dicks did not contact them about the need to use
the bathroom. (Id. at 1–6). The DOC later dismissed Dicks’ appeal. (Id. at 7–8).
5.

Interfering with Plaintiff’s Religious Practices

In ARP No. NBCI-1332-16, Dicks complained that in June 2016, his religious rights
were violated when Defendants Grabenstein, Carr, and McKinney (incorrectly identified
in the ARP as McKenzie) prevented him and approximately fifty other Muslim inmates
from entering a Nation of Islam Ramadan class with their study materials. (Harbaugh Decl.
¶ 8; Religious ARPs at 1–2, ECF No. 43-18). According to the Matters of Record submitted
by the officers, the inmates were sent back to their housing unit because of additional nonallowable property items they brought with them to the meeting. (Id. at 1).
According to NBCI, the rules for general population inmates observing Ramadan
permit an inmate to bring a Quran, Bible and “Final Call” newspaper with them to Nation
of Islam Ramadan services. (Id. at 1, 4–10). Thus, Dicks’ ARP was dismissed at both the
institutional level and on appeal. (Id. at 1, 12–27; Harbaugh Decl. ¶ 9). Harbaugh avers that
he does not have any knowledge of any staff interfering with Dicks’ right to practice his
religion or confiscate any approved religious materials. (Harbaugh Decl. ¶ 10).
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6.

Improperly Labeling Plaintiff

According to Zies, on May 6, 2014, Dicks was moved from Housing Unit 1 to
Housing Unit 2 after he completed the Behavior Management Program. (Charlotte Zies
Decl. [“Zies Decl.”] ¶ 4, ECF No. 43-21). On May 14, 2014, she conducted a PREA
screening interview with Dicks in accordance with DPSCS directives. (Id. ¶ 5; see also
Executive Directive No. COS.200.0005, ECF No. 43-22 (setting forth DSPCS policies for
assessing the risk of sexual victimization and abusiveness)). The interview indicated Dicks
was “[a]t [r]isk of [a]busiveness.” (Zies Decl. ¶ 5). Dicks was informed of the outcome of
the screening at the conclusion of the interview. (Id. ¶ 6). Zies avers that Dicks is not
labeled a sex offender or rapist. (Id. ¶ 8). On the same day that Zies completed the PREA
screening, she also completed a Security Reclassification and recommended Dicks’
security level be increased to Maximum II. (Id. ¶ 7). Dicks was informed of Zies’
recommendation during the interview. (Id.). Zies avers that she has not retaliated against
Dicks in anyway. (Id. ¶ 9).
David Barnhart, NBCI Intelligence Lieutenant, states that he reviewed records
maintained by the DPSCS Intelligence Unit showing that Dicks was validated as a member
of BGF and is currently listed as “inactive” in the group as of January 11, 2017. (David
Barnhart Decl. ¶¶ 3, 5, ECF No. 43-24). Contrary to Dicks’ allegation that his STG
designation was the result of misrepresentations by Harbaugh, Harbaugh avers that he has
not lied or sent false reports to the Commissioner’s Office regarding Dicks. (Harbaugh
Decl. ¶ 12).

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On September 24, 2015, Dicks filed ARP No. NBCI-2013-15, complaining that he
had been incorrectly labelled as a member of an STG and given a “PREA flag”. (Labeling
ARPs at 1–3, ECF No. 43-23).
As set forth above, Dicks claims the STG flag prevented him from contact visits
with his children and grandchildren. Inmate visits are governed by an executive directive.
(See Executive Directive No. OPS.195.0003 [“Inmate Visits Dir.”], ECF No. 43-20).
Bishop maintains that general population inmates who are validated members of a STG are
afforded the same visiting privileges as inmates who are not validated members of a STG.
(Bishop Decl. ¶ 13). Segregation inmates and inmates classified as Maximum Security II,
however, are only granted non-contact visits. (Bishop Decl. ¶ 13; Inmate Visits Dir. at 5).
7.

Plaintiff’s History of ARPs and Grievances

Between September 17, 2012 and November 21, 2016, Dicks filed forty-one ARPs
while housed at NBCI. (Dicks NBCI ARP Index, ECF No. 43-25). Samiya G. Hassan, an
administrative officer at the IGO, avers that she reviewed IGO records regarding
complaints or grievances filed by Dicks as to the issues raised in the Complaint and found
only three relevant grievances: IGO No. 20152459, IGO No. 20160995, and IGO No.
20161491. (Samiya Hassan Decl. [“Hassan Decl.”] ¶¶ 2, 3, ECF No. 43-26)
Dicks filed the grievance appeal underlying IGO No. 20152459 on December 29,
2015. (Id. ¶ 3a). The appeal sought a review of the denial of ARP No. NBCI-2013-15,
wherein Dicks complained he had improperly been labeled as a member of a STG and a
“PREA predator.” (Id.). The IGO dismissed the grievance on May 29, 2016 for failure to
state a claim. (Id.). Dicks filed the grievance appeal underlying IGO No. 20160995 on May
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31, 2016. (Id. ¶ 3.b). The appeal disputed the denial of ARP No. NBCI-0346-16, in which
Dicks had alleged that on February 6, 2016, he was denied access to a toilet while in the
recreation hall. (Id.). The IGO dismissed the grievance on October 18, 2016 for failure to
state a claim. (Id.). Finally, IGO No. 20161491 involved a grievance appeal Dicks filed on
August 19, 2016. (Id. ¶ 3.c). That appeal sought to overturn the denial of ARP No. NBCI1336-16, which alleged that on June 10, 2016, Dicks was denied permission to bring
unidentified items into a Nation of Islam study group. (Id.). The IGO dismissed the
grievance for failure to state a claim. (Id.).
C.

Procedural History
On August 31, 2017, Dicks filed a Complaint against Defendants alleging

unconstitutional conditions of confinement and denial of medical care in violation of the
First, Fourth, Eighth, and Fourteenth Amendments. (Compl. at 3). 7 Dicks included as
Defendants in the Complaint the State Defendants and Commissioner Patricia A. Moore,

7

Well past the deadline for amending as a matter of course and without seeking
leave from the Court, Dicks filed an Amended Complaint on June 27, 2018. (ECF No. 45).
While captioned an “Amended Complaint,” the pleading does not involve the same events
as those described in the original Complaint. Rather, it appears designed to supplement the
Complaint by adding several defendants and recounting a series of events only tangentially
related to those described in the Complaint. Indeed, the Amended Complaint does not
appear to include any of the allegations contained in the original Complaint. This is
improper in light of the general rule that “an amended pleading ordinarily supersedes the
original and renders it of no legal effect.” Young v. City of Mt. Ranier, 238 F.3d 567, 572
(4th Cir. 2001) (quoting Crysen/Montenay Energy Co. v. Shell Oil Co., 226 F.3d 160, 162
(2d Cir. 2000)). As Dicks failed to seek leave to file an amended complaint in accordance
with the Federal Rules of Civil Procedure and the Local Rules of this Court, the original
Complaint will remain the operative complaint in this matter.
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as well as Nurse Practitioner Janette Clark, Nurse Practitioner Krista Self, and Registered
Nurse Robert Claycomb (the “Medical Defendants”).
The Medical Defendants filed a Motion to Dismiss or, in the Alternative, Motion
for Summary Judgment on January 24, 2018. (ECF No. 21). Dicks opposed the Motion,
and Medical Defendants filed a Reply (ECF Nos. 29, 32). On June 13, 2018, State
Defendants filed a separate Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment. (ECF No. 43). Dicks filed an Opposition on July 5, 2018. (ECF No. 46). State
Defendants did not file a Reply.
On August 20, 2018, the Court entered a Memorandum Opinion and Order granting
the Medical Defendants’ Motion. (ECF Nos. 48, 49). In that Opinion, the Court stated that
it would address the allegations against State Defendants in a separate opinion. (Mem. Op.
at 2, ECF No. 48). An erroneous docketing notation then mistakenly closed the entire case,
leaving State Defendants’ dispositive motion unresolved. Upon discovering the error, the
Court conducted a preliminary review of State Defendants’ Motion and determined that a
Defendant listed in the Complaint as “Commissioner P.A. Mourey” was in fact Defendant
Moore. The Court thus granted the Maryland Attorney General additional time to
determine whether its office would represent Moore and to file any appropriate response
on Moore’s behalf. (ECF No. 52). On February 24, 2021, Moore joined State Defendants’
previously filed dispositive motion. (ECF No. 59).

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II.
A.

DISCUSSION

Standard of Review
1.

Conversion

State Defendants style their Motions as motions to dismiss under Rule 12(b)(6) or,
in the alternative, for summary judgment under Rule 56. “A motion styled in this manner
implicates the Court’s discretion under Rule 12(d)[.]” Pevia v. Hogan, 443 F.Supp.3d 612,
625 (D.Md. 2020) (citation omitted). Rule 12(d) provides that when “matters outside the
pleadings are presented to and not excluded by the court, the [Rule 12(b)(6)] motion must
be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). The Court
has “complete discretion to determine whether or not to accept the submission of any
material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion
and rely on it, thereby converting the motion, or to reject it or simply not consider it.”
Wells-Bey v. Kopp, No. ELH-12-2319, 2013 WL 1700927, at *5 (D.Md. Apr. 16, 2013)
(quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1366,
at 159 (3d ed. 2004)).
The United States Court of Appeals for the Fourth Circuit has articulated two
requirements for proper conversion of a Rule 12(b)(6) motion to a Rule 56 motion: notice
and “a reasonable opportunity for discovery.” Greater Balt. Ctr. for Pregnancy Concerns,
Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir. 2013) (citation omitted). When the
movant expressly captions its motion “in the alternative” as one for summary judgment
and submits matters outside the pleadings for the court’s consideration, the parties are
deemed to be on notice that conversion under Rule 12(d) may occur. See Moret v. Harvey,
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381 F.Supp.2d 458, 464 (D.Md. 2005) (citing Laughlin v. Metro. Wash. Airports Auth.,
149 F.3d 253, 260–61 (4th Cir. 1998)). The Court “does not have an obligation to notify
parties of the obvious.” Laughlin, 149 F.3d at 261.
Ordinarily, summary judgment is inappropriate when “the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448 (4th Cir. 2011) (citation omitted). Yet “the party opposing summary
judgment ‘cannot complain that summary judgment was granted without discovery unless
that party had 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)). To successfully raise the need for additional discovery, the non-movant must
typically file an affidavit or declaration under Rule 56(d), explaining the “specified
reasons” why “it cannot present facts essential to justify its opposition.” Fed.R.Civ.P.
56(d). A Rule 56(d) affidavit is inadequate if it simply demands “discovery for the sake of
discovery.” Hamilton v. Mayor & City Council of Balt., 807 F.Supp.2d 331, 342 (D.Md.
2011) (citation omitted). A Rule 56(d) request for discovery is properly denied when “the
additional evidence sought for discovery would not have by itself created a genuine issue
of material fact sufficient to defeat summary judgment.” Ingle ex rel. Est. of Ingle v.
Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (quoting Strag v. Bd. of Trs., Craven Cmty.
Coll., 55 F.3d 943, 954 (4th Cir. 1995)).
The Fourth Circuit has warned that it “‘place[s] great weight on the Rule 56[d]
affidavit’ and that ‘a reference to Rule 56[d] and the need for additional discovery in a
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memorandum of law in opposition to a motion for summary judgment is not an adequate
substitute for a Rule 56[d] affidavit.’” Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at
961). Failing to file a Rule 56(d) affidavit “is itself sufficient grounds to reject a claim that
the opportunity for discovery was inadequate.” Id. (quoting Evans, 80 F.3d at 961). Despite
these holdings, the Fourth Circuit has indicated that there are some limited circumstances
in which summary judgment may be premature, notwithstanding the non-movants’ failure
to file a Rule 56(d) affidavit. See id. A court may excuse the failure to file a Rule 56(d)
affidavit when “fact-intensive issues, such as intent, are involved” and the nonmovant’s
objections to deciding summary judgment without discovery “serve[] as the functional
equivalent of an affidavit.” Id. at 244–45 (quoting First Chi. Int’l v. United Exch. Co., 836
F.2d 1375, 1380 (D.C. Cir. 1988)).
Here, the Court concludes that both requirements for conversion are satisfied. Dicks
was on notice that the Court might resolve Defendants’ Motion under Rule 56 because
Defendants styled their Motion as a motion in the alternative for summary judgment and
presented extra-pleading material for the Court’s consideration. See Moret, 381 F.Supp.2d
at 464. In addition, the Clerk informed Dicks about the Motion and the need to file an
opposition. (See Rule 12/56 Letter, ECF No. 44). Dicks filed an Opposition, as well as
additional correspondence with the Court, but did not include a request for more time to
conduct further discovery. Because the Court will consider documents outside of Dicks’
Complaint in resolving Defendants’ Motions, the Court will treat the Motion as one for
summary judgment.

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2.

Summary Judgment

In reviewing a motion for summary judgment, the Court views the facts in a light
most favorable to the nonmovant, drawing all justifiable inferences in that party’s favor.
Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
Summary judgment is proper when the movant demonstrates, through “particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory answers,
or other materials,” 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), (c)(1)(A). Significantly, a
party must be able to present the materials it cites in “a form that would be admissible in
evidence,” Fed.R.Civ.P. 56(c)(2), and supporting affidavits and declarations “must be
made on personal knowledge” and “set out facts that would be admissible in evidence,”
Fed.R.Civ.P. 56(c)(4).
Once a motion for summary judgment is properly made and supported, the burden
shifts to the nonmovant to identify evidence showing that there is a genuine dispute of
material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986). The nonmovant cannot create a genuine dispute of material fact “through
mere speculation or the building of one inference upon another.” Othentec Ltd. v. Phelan,
526 F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.
1985)).

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A “material fact” is one that might affect the outcome of a party’s case. Anderson,
477 U.S. at 248; see also JKC Holding Co., LLC v. Wash. Sports Ventures, Inc., 264 F.3d
459, 465 (4th Cir. 2001) (citations omitted). 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 v. Caldera, 249 F.3d 259,
265 (4th Cir. 2001). A “genuine” dispute concerning a “material” fact arises when the
evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party’s
favor. Anderson, 477 U.S. at 248. If the nonmovant has failed to make a sufficient showing
on an essential element of his case where he has the burden of proof, “there can be ‘no
genuine [dispute] as to any material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
C.

Analysis
1.

Respondeat Superior

Dicks’ theory of liability as to Defendants Bishop and Nines is premised exclusively
on the doctrine of respondeat superior. In a suit arising under 42 U.S.C. § 1983, the doctrine
of respondeat superior generally does not apply and liability attaches only upon a
defendant’s personal participation in the constitutional violation. See Wright v. Collins,
766 F.2d 841, 850 (4th Cir. 1985); see also Love-Lane v. Martin, 355 F.3d 766, 782 (4th
Cir. 2004). Liability of supervisory officials “is premised on ‘a recognition that supervisory
indifference or tacit authorization of subordinates’ misconduct may be a causative factor
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in the constitutional injuries they inflict on those committed to their care.’” Baynard v.
Malone, 268 F.3d 228, 235 (4th Cir. 2001) (quoting Slakan v. Porter, 737 F.2d 368, 372
(4th Cir. 1984)). Thus, supervisory liability under § 1983 must be supported with evidence
that: (1) the supervisor had actual or constructive knowledge that his subordinate was
engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to
citizens like the plaintiff; (2) the supervisor’s response to the knowledge was so inadequate
as to show deliberate indifference to or tacit authorization of the alleged offensive
practices; and (3) there was an affirmative causal link between the supervisor’s inaction
and the particular constitutional injury suffered by the plaintiff. See Shaw v. Stroud, 13
F.3d 791, 799 (4th Cir. 1994) (citations omitted).
Such evidence is lacking in this case. First, Dicks’ claim against Bishop and Nines
is wholly conclusory and divorced from any factual allegations in the Complaint. Dicks
has failed to allege any facts that could give rise to an inference that Bishop or Nines had
actual or constructive knowledge of the misconduct alleged in this case, much less that they
responded with deliberate indifference to that alleged misconduct. Accordingly, this claim
is subject to dismissal.
2. Administrative Exhaustion
Defendants contend that portions of Dicks’ complaint are subject to dismissal
pursuant to the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, because they
have not been properly presented through the administrative remedy procedure. The PLRA
provides in pertinent part that:

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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(a). For purposes of the PLRA, “the term ‘prisoner’ means any
person incarcerated or detained in any facility who is accused of, convicted of, sentenced
for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of
parole, probation, pretrial release, or diversionary program.” 42 U.S.C. § 1997e(h). The
phrase “prison conditions” encompasses “all 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); see also Chase v.
Peay, 286 F.Supp.2d 523, 528 (D.Md. 2003), aff’d, 98 F.App’x 253 (4th Cir. 2004).
Notably, administrative exhaustion under § 1997e(a) is not a jurisdictional
requirement and does not impose a heightened pleading standard on the prisoner. Rather,
the failure to exhaust administrative remedies is an affirmative defense to be pleaded and
proven by defendants. See Jones v. Bock, 549 U.S. 199, 216 (2007); see also Anderson
v. XYZ Corr. Health Services, Inc., 407 F.2d 674, 682 (4th Cir. 2005). A claim that has
not been exhausted may not be considered by this Court. See Jones, 549 U.S. at 220. In
other words, exhaustion is mandatory, and a court usually may not excuse an inmate’s
failure to exhaust. See Ross v. Blake, 136 S.Ct. 1850, 1856–57 (2016).
Ordinarily, an inmate must follow the required procedural steps in order to exhaust
his administrative remedies. Moore v. Bennette, 517 F.3d 717, 725, 729 (4th Cir.
2008); see also Langford v. Couch, 50 F.Supp.2d 544, 548 (E.D.Va. 1999) (“The second

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PLRA amendment made clear that exhaustion is now mandatory.”). Exhaustion requires
completion of “the administrative review process in accordance with the applicable
procedural rules, including deadlines.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). This
requirement is one of “proper exhaustion of administrative remedies, which means using
all steps that the agency holds out, and doing so properly (so that the agency addresses the
issues on the merits).” Woodford, 548 U.S. at 90 (quoting Pozo v. McCaughtry, 286 F.3d
1022, 1024 (7th Cir. 2002)). But the 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).
To pursue a grievance, a prisoner confined in a Maryland prison may file a grievance
with the IGO against any DOC official or employee. Md. Code Ann., Corr. Servs. (“C.S.”)
§ 10-206(a). However, if the prison has a grievance procedure that is approved by the IGO,
the prisoner must first follow the institutional ARP process before filing a grievance with
the IGO. See C.S. § 10-206(b). Inmates housed at an institution operated by DPSCS may
avail themselves of the administrative grievance process designed for inmate complaint
resolution. See generally C.S. § 10-201 et seq.; Md. Code Regs. (“COMAR”)
12.07.01.01B(1) (defining an ARP).
A prisoner in a Maryland Division of Corrections (“DOC”) institution must file an
ARP with his facility’s managing official within thirty days of the date on which the
incident occurred, or within thirty days of the date the prisoner first gained knowledge of
the incident or injury giving rise to the complaint, whichever is later. COMAR
12.02.28.09(B). If the managing official denies the ARP, the prisoner has thirty days to file
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an appeal with the Commissioner of Corrections. Id. 12.02.28.14(B)(5). If the
Commissioner of Corrections denies the appeal, the prisoner has thirty days to file a
grievance with the IGO. Id. 12.02.28.18. The prisoner must include in the grievance copies
of the initial request or administrative remedy, the Warden’s response to that request, a
copy of the ARP appeal filed with the Commissioner of Correction, and a copy of the
Commissioner’s response. Id. 12.07.01.04(B)(9)(a). If the grievance is determined to be
“wholly lacking in merit on its face,” the IGO may dismiss it without a hearing. C.S. § 10207(b)(1); see also COMAR 12.07.01.07(B). An order of dismissal constitutes the final
decision of DPSCS for purposes of judicial review. C.S. § 10-207(b)(2)(ii). An inmate has
not exhausted his administrative remedies until he has pursued his grievance through all
levels. See Woodford, 548 U.S. at 90; see also Gibbs v. Bureau of Prisons, 986 F.Supp.
941, 943–44 (D.Md. 1997).
Dicks failed to exhaust his administrative remedies regarding his access to
courts/mail claims; medical claims; denial of accessibility to top bunk; denial of access to
a bathroom during recreation on August 11, 2016; Maximum II security classification;
retaliation; false reports; and failure to protect. (See generally Dicks NBCI ARP Index;
Hassan Decl. (identifying the three grievances Dicks pursued through the IGO)). As set
forth in Section I.B.7, supra, while Dicks instituted the ARP process as to a number of his
claims, he only appealed three of the dismissals to the IGO and received results prior to
instituting this case: ARP Nos. NBCI-2013-15, NBCI-0346-16, and NBCI-1336-16. (Id.).
These grievances related to Dicks’ complaints that he was wrongly labeled as an STG

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member and PREA predator; denied use of the bathroom on February 6, 2016; and denied
permission to carry certain items into the Nation of Islam study group during Ramadan.
As discussed above, the PLRA requires that inmates exhaust all available remedies
prior to filing a civil suit. 8 Because Dicks failed to exhaust administrative remedies, the
Court will dismiss Dicks’ claims relating to tampering with his mail and money order;
interfering with his medical care; injuries arising from his sleeping arrangements; harm
arising from NBCI bathroom policies; Dicks’ Maximum II security classification; and any
alleged retaliation, false reports, or failure to protect. The Court considers Dicks’ remaining
claims in turn.
3. Improperly Labeling Plaintiff
Dicks claims that NBCI improperly flagged him as a member of the BGF when he
tried to move into a cell with a fellow Muslim and improperly labeled him as a sex offender
following his PREA screening. (Compl. at 26–29). Dicks’ claim fails.

8

Dicks provides evidence demonstrating that he did appeal his claim regarding use
of beard trimmers to the IGO. (Misc. Pl.’s Exhibits at 11, ECF No. 46-1 (reflecting
December 20, 2017 dismissal of Dicks’ grievance by IGO). The IGO appeal, however, was
not resolved until after Dicks instituted this case. Exhausting administrative remedies after
a complaint is filed will not save a case from dismissal for failure to exhaust administrative
remedies. See Neal v. Goord, 267 F.3d 116, 121–22 (2d Cir. 2001), overruled on other
grounds by Porter, 534 U.S. 516. In Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999),
the U.S. Court of Appeals for the Sixth Circuit stated: “The plain language of the statute
[§ 1997e(a)] makes exhaustion a precondition to filing an action in federal Court. . . . The
prisoner, therefore, may not exhaust administrative remedies during the pendency of the
federal suit.” See also Kitchen v. Ickes, 116 F.Supp.3d 613, 625–26 (D.Md. 2015)
(refusing to allow claim to move forward premised on allegations contained in an ARP
filed after plaintiff filed his complaint in federal court), aff’d, 644 F.App’x 243 (4th Cir.
2016).
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Prisoners have a limited constitutional right, grounded in the due process clause, to
have prejudicial erroneous information expunged from prison files and they are deprived
of this right if prison officials refuse to expunge material after being requested to do so.
Paine v. Baker, 595 F.2d 197, 202 (4th Cir. 1979), cert. denied, 444 U.S. 925 (1979).
However, it is not sufficient that a prisoner simply disputes evaluations and opinions about
him. Id. The allegedly erroneous information must have been relied on to a
“constitutionally significant degree” in order to state a claim. Id. “If the information is
relied on to deny parole or statutory good-time credits, or to revoke probation or parole,
the inmate’s conditional liberty interest is at stake and the due process clause is called into
play.” Id. (citing Wolff v. McDonnell, 418 U.S. 539 (1974)).
Prisoners do not have a constitutional right to access programs or to demand to be
housed in one prison versus another, absent a showing of significant hardship. See Cole v.
Pepper, No. GJH-18-3097, 2019 WL 4750295, at *7 (D.Md. Sept. 30, 2019). “[G]iven a
valid conviction, the criminal defendant has been constitutionally deprived of his liberty to
the extent that the State may confine him and subject him to the rules of its prison system
so long as the conditions of confinement do not otherwise violate the Constitution.”
Meachum v. Fano, 427 U.S. 215, 224 (1976). Limitations on a prisoner’s liberty interests
are not unconstitutional unless they impose an “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). Thus, before deciding whether Dicks is entitled to due process, it must be
determined if the conditions under which he was confined constituted an atypical and
significant hardship.
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Assignment to administrative segregation does not create an atypical and significant
hardship. See Hewitt v. Helms, 459 U.S. 460, 467 (1983) (holding that administrative
segregation is part of the ordinary incidents of prison life). Additionally, inmates are not
entitled to be housed at any particular security classification or cell. See McKune v.
Lile, 536 U.S. 24, 26 (2002) (stating that the “decision where to house inmates is at the
core of prison administrators’ expertise”); see also Veney v. Wyche, 293 F.3d 726, 734
(4th Cir. 2002) (“In formulating and executing decisions relating to cell assignments, we
must allow prison authorities the discretion to take into account the particular safety and
security concerns facing [the] inmates[.]”); Slezack v. Evatt, 21 F.3d 590, 594 (4th Cir.
1994) (“[T]he security and custody classification of state prison inmates is a matter for
state prison-official discretion whose exercise is not subject to federal procedural due
process constraints.”).
Dicks has failed to allege, much less demonstrate that he timely objected to the STG
designation. Defendants explain that Dicks has been validated as a member of a STG. He
has offered nothing to refute their finding. Moreover, validated members of STG housed
in general population are entitled to the same privileges as other non-designated inmates in
the general population. He has failed to demonstrate that he suffered any loss of liberty as
a result of the STG designation. As such, even if the designation of Dicks as a member of
the BGF was erroneous, he has failed to demonstrate any injury arising from his
designation, and thus cannot satisfy a due process claim.
Similarly, as to Dicks’ claim regarding his PREA screening, the screening simply
indicated that Dicks was at risk of abusiveness. It did not label him as a sex offender or
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rapist and he has failed to allege, much less demonstrate, how use of such screening
materials was improper or violated his right to due process. Accordingly, Defendants are
entitled to summary judgment on this claim.
4. Conditions of Confinement
Dicks’ allegation that he was denied the use of the bathroom on February 6, 2016
is most fairly construed as an Eighth Amendment conditions of confinement claim. The
claim is unavailing.
For a prison official to be found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement, “the official [must know] of and disregard[] an
excessive risk to inmate health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 837; see also Rich v. Bruce, 129 F.3d 336, 338 (4th
Cir. 1997). A two-part inquiry that includes both an objective and a subjective component
must be satisfied before liability is established. See Farmer, 511 U.S. at 834, 837.
Objectively, the prisoner “must establish a serious deprivation of his rights in the
form of a ‘serious or significant physical or emotional injury.’” Danser v. Stansberry, 772
F.3d 340, 346 (4th Cir. 2014) (quoting Farmer, 511 U.S. at 834). The objective inquiry
requires this Court to “assess whether society considers the risk that the prisoner complains
of to be so grave that it violates contemporary standards of decency to
expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993).
Subjectively, a plaintiff must establish that the prison official involved had “a sufficiently
culpable state of mind” amounting to “‘deliberate indifference’ to inmate health or
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safety.” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 302–03 (1991)).
Evidence establishing a culpable state of mind requires actual knowledge of an excessive
risk to the prisoner’s safety or proof that prison officials were aware of facts from which
an inference could be drawn that a substantial risk of serious harm existed and that the
officials drew such an inference. Id. at 837. Where prison officials respond reasonably to a
risk, they may be found not liable. Id. at 844.
Dicks contends that Defendants acted with deliberate indifference to his safety
because they forced him to participate in recreation without access to a bathroom. Dicks’
claim fails to satisfy either component of Eighth Amendment liability. Although urinating
on himself on one occasion is certainly unfortunate, Dicks has failed to demonstrate a
serious physical or emotional injury arising from this one occurrence, nor has he introduced
evidence that it placed him at a substantial risk of injury. See Danser, 772 F. 3d at 346–47
(quoting Farmer, 511 U.S. at 834). 9 At bottom, Dicks has failed to allege sufficient facts
regarding the essential elements of his conditions of confinement claim—serious physical
or emotional injury or a substantial risk of injury—to create a genuine dispute regarding a
material fact. See Celotex Corp., 477 U.S. 317 at 322–23 (1986). Similarly, Dicks has

9

While an inmate need not wait until he is actually harmed, he still must show that
he was exposed to an existing unreasonable hazard or condition. Helling, 509 U.S. at 35–
36. Moreover, the hazard must be “sure or very likely to cause serious illness and needless
suffering,” and give rise to “sufficiently imminent dangers.” Id. at 33, 34; see also Baze v.
Rees, 553 U.S. 35, 50 (2008). Dicks has not presented evidence sufficient to prove either
condition. At best, Dicks has presented allegations of “isolated incidents” that fail to
demonstrate a sufficient risk of future harm. Shrader v. White, 761 F.2d 975, 978 (4th Cir.
1985) (quoting Withers v. Levine, 615 F.2d 158, 161 (4th Cir. 1980)). Thus, Dicks is not
entitled to relief based on a theory of risk of future harm.
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failed to introduce evidence of actual knowledge of this risk on the part of prison officials.
Indeed, Defendants have introduced unrefuted evidence that inmates in Housing Unit 3
were provided an opportunity to return to their cells at least every fifteen minutes during
recreational time, and Dicks failed to return to his cell when given the opportunity. (See
Feb. 2016 Restroom ARPs at 1, 3, 5–9).
When considering claims that conditions of confinement constitute cruel and
unusual punishment, “courts must bear in mind that their inquiries ‘spring from
constitutional requirements and that judicial answers to them must reflect that fact rather
than a court’s idea of how best to operate a detention facility.’” Rhodes, 452 U.S. at 351
(quoting Bell, 441 U.S. at 539). Here, Dicks’ challenges to NBCI’s policies regarding
recreation and lack of access to sanitary facilities during recreation fail to meet the
objective component of an Eighth Amendment claim. Thus, Defendants are entitled to
judgment on this claim.
5. Ramadan Services
Dicks alleges that Defendants violates his First Amendment rights when they did
not allow him to attend Ramadan services with unapproved Nation of Islam materials. He
is not entitled to relief on this claim.
It is well established that “[l]awful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a retraction justified by the
considerations underlying our penal system.” O’Lone v. Estate of Shabazz, 482 U.S. 342,
348 (1987) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). With respect to the free
exercise of religion, prison inmates retain a right to reasonable opportunities for free
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exercise of religious beliefs without concern for the possibility of punishment. See Cruz v.
Beto, 405 U.S. 319, 322 (1972) (per curiam). Prison restrictions that affect the free exercise
of religion but are related to legitimate penological objectives, however, do not run afoul
of the constitution. See Turner v. Safely, 482 U.S. 78, 89–91 (1987).
Courts consider the following factors in determining if the restrictions on religious
exercise are related to legitimate penological objectives:
(1) whether there is a “valid, rational connection” between the
prison regulation or action and the interest asserted by the
government, or whether this interest is “so remote as to render
the policy arbitrary or irrational”; (2) whether “alternative
means of exercising the right . . . remain open to prison
inmates”; (3) what impact the desired accommodation would
have on security staff, inmates, and the allocation of prison
resources; and (4) whether there exist any “obvious, easy
alternatives” to the challenged regulation or action.
Wall v. Wade, 741 F.3d 492, 499 (4th Cir. 2014) (quoting Lovelace v. Lee, 472 F.3d 174,
200 (4th Cir. 2006)). Under the Free Exercise Clause, a prisoner has a clearly established
right to a diet consistent with his religious principles. Wall, 741 F.3d at 498–500.
Dicks contends that he was turned away from the Ramadan study group because he
had a “Last Call” newspaper, which he maintains he was permitted to have for the study
group. Dicks did not identify the materials he possessed when he was turned away from
the meeting when he filed his ARP. In his Complaint, however, Dicks references several
publications that Nation of Islam inmates are allowed to purchase, but which are not on the
list of approved items that Nation of Islam inmates were authorized to take into the meeting.
Dicks does not clarify whether he attempted to bring only the materials authorized for the
meeting with him on that date.
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Even assuming arguendo that Dicks was entitled to possess the materials and enter
the meeting, his claim is unavailing. Put simply, there is no allegation that the officers’
conduct in turning Dicks away from the meeting was anything more than an error on the
part of staff regarding what property Dicks was permitted to take into the meeting. Dicks
must establish that Defendants intentionally interfered with his religious practices.
Negligent interference with religious exercise is not remediable under the First
Amendment. Lovelace v. Lee, 472 F.3d 174, 194 (4th Cir. 2006); Meyer v. Teslki, 411
F.Supp.2d 983, 991 (W.D.Wis. 2006). Dicks has not introduced evidence of intentional
interference here. Accordingly, Defendants are entitled to judgment on this claim.
III.

CONCLUSION

For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss, or
in the Alternative, for Summary Judgment (ECF No. 43). A separate Order follows.
Entered this 17th day of September, 2021.

/s/
George L. Russell, III
United States District Judge

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