Sewell v. Stouffer et al

Filing 34

MEMORANDUM OPINION (c/m to Plaintiff 4/2/12 sat). Signed by Chief Judge Deborah K. Chasanow on 4/2/12. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EMMANUEL E. SEWELL

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Plaintiff

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v

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ACTING COMMISSIONER J. MICHAEL
STOUFFER, et al.

Civil Action No. DKC-11-1584

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Defendants
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MEMORANDUM OPINION
Defendants filed a Motion to Dismiss or for Summary Judgment in the above-entitled
case. ECF No. 24. Plaintiff Emmanuel Sewell (“Sewell”) opposes the motion and moves for
injunctive relief. ECF No. 28 and 31. Upon review of the papers filed, the court finds a hearing
in this matter unnecessary. See Local Rule 105.6 (D. Md. 2011).
Background
Sewell asserts a variety of claims in this action. First, on December 7, 2010, he filed a
second administrative remedy procedure form (ARP) complaining that his legal mail was being
opened and willfully and maliciously discarded by prison staff in Unit One, D-Tier at North
Branch Correctional Institution (NBCI).

ECF No. 2. He further claims that Lt. Durst, Sgt.

Bulger and Sgt. McKenzie failed to provide Sewell with written “matter of records” concerning
his mail. Sewell states that his “domestic mailings” were being arbitrarily put into the cells of
prison gang members to get Sewell to focus his anger on “gang bangers” instead of officers.1

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To the extent that Sewell presents claims in the context of this case that have been presented in a previously filed
complaint, those claims will not be addressed here. See Sewell v. Stouffer, Civil Action No. DKC-11-614 (D. Md.).

Sewell also states his access to the law library was cut off when he was no longer
receiving case-law or “updated law changes for a liberal pleading concerning the SMU2
operations.” Id. at p. 3. He states library services were only provided every two to three weeks
and his request slips were being re-written in someone else’s handwriting. He states the librarian
was erroneously faxing the wrong information to LASI3 and changing his initial case law
requests or simply refusing to process certain requests. Sewell states that these practices violate
his constitutional rights and continued regardless of the number of times he contacted the warden
and the librarian. Sewell claims that as a result of being denied legal mail and access to legal
materials his case was dismissed. Id. 4
With respect to Sewell’s claims regarding interference with his legal mail, Defendants
assert that all incoming and outgoing mail at NBCI is handled pursuant to directives. Legal mail
is logged in and forwarded to the recipient’s housing unit. The log book, maintained by NBCI
staff, contains inmates’ names and signatures showing when they received legal mail. ECF No.
24 at Ex. 16. From June 30, 2010 through October 5, 2011, Sewell’s name and signature appears
sixty-five times. Id. at pp. 1 – 66. Defendants further deny engaging in conduct to deprive
Sewell of his legal mail or having other inmates forge his signature on legal mail log sheets. Id.
at Ex. 9, 14, 17, 18, 19 and 20.
As an inmate assigned to segregated housing, Sewell’s means of access to legal materials
requires him to submit a written request which is forwarded to the librarian. ECF No. 24 at Ex.
2

SMU is the Special Management Unit at NBCI.

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LASI is an acronym for Library Assistance to State Institutions which is a service that provides copies of cited
legal cases to inmates confined to state institutions. ECF No. 24 at Ex. 22.

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Sewell also alleges his safety was endangered through poisoning of his food with salmonella and sharp objects
embedded in crevices of the fish he was being served. Based on these alleged unsafe conditions, Sewell claims he
had to dismiss an appeal pending in the Fourth Circuit Court of Appeals. ECF No. 2 at p. 2. This claim was
addressed in Sewell v. Stouffer, Civil Action DKC-11-0614 (D. Md.) at ECF No. 74 and 75 (Memorandum Opinion
and Order granting summary judgment in favor of Defendants).

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22. Specifically, copies of case law are requested through the use of a LASI form which is then
mailed to LASI for completion of the request. If a particular case requested is one that is
frequently requested, the Librarian, Mary Huebener, crosses the request off the LASI form and
instead provides the case to the inmate from a Legal Information Packet (LIP) provided to her by
LASI. At that time, the case is sent to the inmate requesting the case. In Sewell’s case, he
requested three cases over the past three years and Ms. Huebner followed the procedure to
provide cases to him. Id. at pp 2 – 5. Defendants deny otherwise improperly denying Sewell
access to the library or legal materials. Id. at Ex. 2, 9, and 22.
Additional claims were added during the pendency of this proceeding focusing on safety
issues. Those claims will be described later.
Standard of Review
Summary Judgment is governed by Fed. R. Civ. P. 56(a) which provides that:
The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.
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).
AThe party opposing a properly supported motion for summary judgment >may not rest
upon the mere allegations or denials of [his] pleadings,= but rather must >set forth specific facts
showing that there is a genuine issue for trial.=@ Bouchat v. Baltimore Ravens Football Club, Inc.,
346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The
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court should Aview the evidence in the light most favorable to . . . the nonmovant, and draw all
inferences in her favor without weighing the evidence or assessing the witness= credibility.@
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court
must, however, also abide by the Aaffirmative obligation of the trial judge to prevent factually
unsupported claims and defenses from proceeding to trial.@ Bouchat, 346 F.3d at 526 (internal
quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and
citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
Analysis
Injunctive Relief
A preliminary injunction is an extraordinary and drastic remedy. See Munaf v. Geren, 553
U.S. 674, 689-90 (2008). To obtain a preliminary injunction, a movant must demonstrate: 1)
that he is likely to succeed on the merits; 2) that he is likely to suffer irreparable harm in the
absence of preliminary relief; 3) that the balance of equities tips in his favor; and 4) that an
injunction is in the public interest. See Winter v. Natural Resources Defense Council, Inc, 555
U.S. 7, 129 S.Ct. 365, 374 (2008); The Real Truth About Obama, Inc. v. Federal Election
Commission, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, _U.S. _, 130 S.Ct.
2371, 176 (2010), reinstated in relevant part on remand, 607 F.3d 355 (4th Cir. 2010) (per
curiam).
While this case was pending, Sewell filed Motions for Preliminary Injunction. ECF No.
14, 15, and 31.

In the first two motions Sewell simply restates the claims raised in the

Complaint with the exception of the allegation that weapons were being passed on D Tier in an
effort to have Sewell killed. ECF No. 14. Sewell also claimed he should be evaluated at
Patuxent Institution for psychological, health, and safety reasons. ECF No. 15 at Attachment 1,

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p. 4. He also claimed the Division of Correction “must be monitored due to multiple failures to
provide inmates constitutional protection to meaningful pre-deprivation opportunities to be heard
with a thorough accurate investigations (sic) in a discretionary meaningful way, without specific
intents to commit unlawful acts.” Id. at Attachment 2, p. 4. Counsel was directed to include a
response to this allegation when responding to the Complaint. ECF No. 17. In the most recent
motion, Sewell again alleges that he is being denied access to his mail and cites as evidence his
failure to receive Orders from this court granting his requests for injunctive relief. ECF No. 31.
Failure to Protect
In order to prevail on an Eighth Amendment claim of failure to protect from violence,
Sewell must establish that Defendants exhibited deliberate or callous indifference to a specific
known risk of harm. See Pressly v. Hutto, 816 F. 2d 977, 979 (4th Cir. 1987). APrison conditions
may be restrictive and even harsh, but gratuitously allowing the beating or rape of one prisoner
by another serves no legitimate penological objective, any more than it squares with evolving
standards of decency. Being violently assaulted in prison is simply not part of the penalty that
criminal offenders pay for their offenses against society.@ Farmer v. Brennan, 511 U.S. 825,
833B 34 (1994) (citations omitted). A[A] prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the official knows
of and disregards 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, 339B 40 (4th
Cir. 1997).
Sewell claims that steel shanks were being passed among inmates for purposes of
harming him with the tacit authorization of Lt. Harbaugh, Sgt. McAlpine, and Sgt. Smith. ECF

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No. 19 at p. 1. In response, Harbaugh states under oath that he has “never tacitly or explicitly
authorized or permitted the passing of steel shanks among inmates for any purpose.” ECF No.
24 at Ex. 2. McAlpine and Smith also state under oath that no such activity was ever tacitly
authorized by them. Sewell offers no objective evidence that this activity took place other than
his belief that it did. He does not claim he was threatened or that he was told by anyone that
there was a plan to assault him. Thus, there does not appear to be a basis for injunctive relief
regarding an alleged threat to Sewell’s life, nor does there appear to be a genuine dispute of
material fact warranting a trial on this claim. Defendants are entitled to summary judgment on
this claim.
Access to Psychological Care
In order to state an Eighth Amendment claim for denial of medical care, a plaintiff must
demonstrate that the actions of the defendants or their failure to act amounted to deliberate
indifference to a serious medical need.

See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Deliberate indifference to a serious medical need requires proof that, objectively, the prisoner
plaintiff was suffering from a serious medical need and that, subjectively, the prison staff were
aware of the need for medical attention but failed to either provide it or ensure the needed care
was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
There is no underlying distinction between the right to medical care for physical ills and
its psychological and psychiatric counterpart. Bowring v. Goodwin, 551 F.2d 44, 47 (4th Cir.
1977). A prisoner is entitled to such treatment if a "[p]hysician or other health care provider,
exercising ordinary skill and care at the time of the observation, concludes with reasonable
certainty (1) that the prisoner's symptoms evidence a serious disease or injury; (2) that such
disease or injury is curable or may be substantially alleviated; and (3) that the potential for harm

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to the prisoner by reason of delay or the denial of care would be substantial." Id. The Bowring
Court further concluded that the aforementioned right to such treatment is based upon the
essential test of medical necessity and not upon that care considered merely desirable. Id. at 48.
Sewell claims his psychiatric condition requires his transfer and evaluation at Patuxent
Institution. ECF No. 15, Attachment 1, p. 4. His claim, however, represents his disagreement
with the screening process for such an assignment. Dr. James Holwager, who is the director of
Mental Health Services, evaluated Sewell and concluded that his transfer to Patuxent would be
highly inappropriate. ECF No. 24 at Ex. 25. While Sewell claims that he suffers from “organic
brain disorder” and “manic depression with bipolar tendencies,” he has not displayed symptoms
consistent with either of those disorders. Id. at p. 2. Holwager’s review of Sewell’s medical and
psychological records established that he suffers from mild depression and mild anxiety, neither
of which becomes acute even when Sewell refuses medication. Id. In Dr. Holwager’s opinion
Sewell has “an exaggerated sense of entitlement” which causes him to become irate when a
treatment provider questions the accuracy of Sewell’s opinions that he should be released from
lock up or that he is not treated well. Id. at p. 1; see also p. 12 (argumentative with psychologist
upon suggestion disciplinary segregation is in response to his behavior).

The program at

Patuxent is reserved for “patients who are severely afflicted with much more serious
psychological disorders than evidenced by Inmate Sewell.” Id. at p. 2.

Recently, Sewell’s

history has been to refuse the psychological treatment provided at NBCI, meaning even if a
transfer to Patuxent for treatment was clinically warranted, it would be of little to no value given
his lack of cooperation. Id.; see also p. 6 (demanding not to be called out by psychologist), p. 10
(refusing pass to psychologist), and p. 11 (same). Sewell’s disagreement with the denial of his
request to be transferred to Patuxent for treatment is not a basis for an Eighth Amendment claim,

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nor is it a basis for injunctive relief. Defendants are entitled to summary judgment in their favor
on this claim.
Mail and Access to Courts
Prisoners have a First Amendment right to send and receive mail. See Thornburgh v.
Abbott, 490 U.S. 401, 407 (1989).

In considering whether policies regarding mail are

constitutionally valid, a distinction is drawn between incoming and outgoing mail; a lower level
of scrutiny applies to policies regarding incoming mail. Id. at 413. Prohibition of incoming
materials from publishers (see Thornburgh at 408) requires the showing of a greater, legitimate
security interest than policies concerning other types of mail. See Altizer v. Deeds, 191 F. 3d
540, 548 (4th Cir. 1999) (inspection of outgoing mail serves legitimate penologicial purpose).
Likewise, policies concerning legal mail require heightened scrutiny, but isolated incidents of
mishandling of mail do not state a claim. See Smith v. Maschner, 899 F.2d 940, 944 (10th
Cir.1990) (requiring a showing of improper motive or interference with access to courts); Buie v.
Jones 717 F. 2d 925, 926 (4th Cir. 1983) (isolated incident of mishandling does not show
actionable pattern or practice).
Prisoners have a constitutionally protected right of access to the courts. Bounds v. Smith,
430 U. S. 817, 821 (1977). However:
Bounds does not guarantee inmates the wherewithal to transform
themselves into litigating engines capable of filing everything from
shareholder derivative actions to slip-and-fall claims. The tools it
requires to be provided are those that the inmates need in order to
attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any
other litigating capacity is simply one of the incidental (and
perfectly constitutional) consequences of conviction and
incarceration.
Lewis v. Casey, 518 U. S. 343, 355 (1996).

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AUltimately, a prisoner wishing to establish an unconstitutional burden on his right of
access to the courts must show >actual injury= to >the capability of bringing contemplated
challenges to sentences or conditions of confinement before the courts.= O=Dell v. Netherland,
112 F. 3d 773, 776 (4th Cir. 1997) quoting Lewis, 518 U.S. at 355. AThe requirement that an
inmate alleging a violation of Bounds must show actual injury derives ultimately from the
doctrine of standing, a constitutional principle that prevents courts of law from undertaking tasks
assigned to the political branches.@ Lewis v. Casey, 518 U.S. 343, 349 (1996).
With respect to Sewell’s claim regarding his legal mail, Sewell’s assumption that his mail
was misdirected or deliberately withheld because he did not receive an Order from this court
granting him injunctive relief is simply incorrect.

See ECF No. 31.

In his Response in

Opposition dated January 19, 2012, Sewell claims he had not received any “legal mailings”
related to Civil Action DKC-11-614. ECF No. 28 at p. 2. A review of the docket entries in Civil
Action DKC-11-0614 belies his assertion. On December 19, 2011, this court issued an Order
denying Sewell’s Motion for Appointment of Counsel and on January 9, 2012, Sewell filed a
Motion for Clarification which references the court’s December 19, 2011 Order. Sewell v.
Stouffer, Civil Action DKC-11-614 at ECF No. 69 and 70 (D. Md.). Additionally, Sewell has
managed to timely file a Motion to Alter or Amend in that case. Id. at ECF No. 77.

Where

there is no actual injury established, there is no unconstitutional burden on the right of access to
courts. Sewell’s claims are, again, based on his beliefs that officers are misdirecting his mail.
ECF No. 28. His assurances that there is “evidence” to support his assertions do nothing to
establish an actual injury emanating from the alleged wrongful conduct.
The same analysis applies to Sewell’s claims that he is improperly denied access to the
library and to legal materials. ECF No. 2. Sewell’s claim that his “referral ARP” filed with the

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Assistant Commissioner Paul O’Flaherty was dismissed because he did not receive “case law
and updated law changes” for a “liberal pleading concerning the SMU operations disciplinary
procedures,” is based on his assertions that library services were only provided every two to
three weeks; his request slips were being rewritten in someone else’s handwriting; and the
librarian faxed the wrong information to LASI. ECF No. 2 at p. 3. The claim does not indicate
that Sewell’s dismissed ARP concerned a protected liberty interest or an otherwise valid
constitutional claim concerning the conditions of his confinement. Rather, he simply alleges the
ARP concerned policies, but does not explain how those policies directly impacted his rights.
Thus, he has failed to establish that his inability to access these materials has resulted in a lost
opportunity to present a valid claim regarding his conviction or the conditions of his
confinement. Indeed, it is clear to the court that Sewell has been more than capable of preparing
and filing legal documents, many of which evidence legal research, in a timely manner.
Defendants are entitled to summary judgment on this claim.
Conclusion
Review of the record evidence establishes that Defendants are entitled to summary
judgment on all claims raised by Sewell and that there is no basis for the injunctive relief sought.
A separate Order follows.

Date:

April 2, 2012

/s/
DEBORAH K. CHASANOW
United States District Judge

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