Resper v. Schurg et al

Filing 25

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 7/7/2014. (c/m 7/7/14 rs) (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WAYNE RESPER,

*
Plaintiff,

v.

*

LIEUTENANT SCHURG, et al.,
Defendants.

CIVIL ACTION NO. PJM-13-1278

*
***

MEMORANDUM OPINION
Pending is a Motion to Dismiss, or in the alternative Motion for Summary Judgment filed on
behalf of Defendants Thomas Sires and Eric Schurg.1 ECF No. 14. Plaintiff has responded. ECF
No. 24. Upon review of papers and exhibits filed, the Court finds an oral hearing in this matter
unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, the dispositive
motion filed by Defendants will be granted.
Background
Plaintiff states that on May 1, 2010, Sgt. Sires and Officer Weisenmiller withdrew funds from
Plaintiff’s prison account in violation of Division of Correction (DOC) policy and without Plaintiff’s
authorization. Plaintiff also claims that on June 28, 2010, Property Supervisor Lt. Schurg forged
Plaintiff’s name on an appeal withdrawal form in violation of DOC policy. Plaintiff alleges that both
incidents violated his right to due process. ECF No. 1.
Standard of Review
A.

Motion to Dismiss
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the

sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th

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The Clerk shall amend the docket to reflect the full names of Defendants.
Defendant Weisenmiller was not served with the complaint. For the reasons that follow, even if he had been properly

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Cir. 1999). The dismissal for failure to state a claim upon which relief may be granted does not
require defendant to establish Abeyond doubt@ that plaintiff can prove no set of facts in support of his
claim which would entitle him to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561
(2007). Once a claim has been stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint. Id. at 563. The court need not, however, accept
unsupported legal allegations, see Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir.
1989), legal conclusions couched as factual allegations, see Papasan v. Allain, 478 U.S. 265, 286
(1986), or conclusory factual allegations devoid of any reference to actual events, see United Black
Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
B.

Motion for Summary Judgment
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 court should
Aview the evidence in the light most favorable to . . . the nonmovant, and draw all inferences in her

served, Plaintiff’s complaint against him would be subject to dismissal.

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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)).
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) the Supreme Court explained
that in considering a motion for summary judgment, the Ajudge=s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue for
trial.@ A dispute about a material fact is genuine Aif the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.@ Id. at 248. Thus, Athe judge must ask himself not whether
he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could
return a verdict for the [nonmoving party] on the evidence presented.@ Id. at 252.
The moving party bears the burden of showing that there is no genuine issue as to any
material fact. No genuine issue of material fact exists if the nonmoving party fails to make a
sufficient showing on an essential element of his or her case as to which he or she would have the
burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, on those
issues on which the nonmoving party has the burden of proof, it is his or her responsibility to confront
the summary judgment motion with an affidavit or other similar evidence showing that there is a
genuine issue for trial.

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Analysis
Plaintiff’s claim that funds were improperly withdrawn from his account is unavailing. In the
case of lost or stolen property, sufficient due process is afforded to a prisoner if he has access to an
adequate post-deprivation remedy. See Parratt v. Taylor, 451 U. S. 527, 542-44 (1981), overruled on
other grounds by Daniels v. Williams, 474 U. S. 327 (1986). The right to seek damages and
injunctive relief in Maryland courts constitutes an adequate post deprivation remedy.2 See Juncker v.
Tinney, 549 F. Supp. 574, 579 (D. Md. 1982).3
Records reflect that on May 1, 2010, Sires received a Request for Administrative Remedy
(ARP) from Plaintiff giving instructions about where to ship personal property which had been
confiscated due to Plaintiff’s placement on disciplinary segregation. Plaintiff provided two addresses
along with a list of items to be shipped to each address. He also included a money voucher signed to
cover the cost of shipping. On May 5, 2010, the mail room shipped out three packages to the
addresses provided by Plaintiff. ECF No. 14, Ex. 1 & 2.
Thereafter, Plaintiff filed an ARP alleging that some of his property was not mailed out as
requested and that Sires made a wrongful disbursement request from Plaintiff’s inmate account. Id.,
Ex. 5. On June 28, 2010, as part of Schurg’s investigation of the ARP, Schurg interviewed Plaintiff
and showed him the mail log demonstrating that all packages were mailed out and the addresses to

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Plaintiff may avail himself of remedies under the Maryland=s Tort Claims Act and through the Inmate Grievance
Office (“IGO”). The Court is mindful of Plaintiff’s contention, contained in his opposition to the dispositive motion,
that his ability to access the IGO was derailed by the alleged forgery of the withdrawal form. Plaintiff’s disagreement
with the decisions reached by the IGO and the Circuit Court regarding his claim does not change the due process
analysis.
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Although Juncker dealt with personal injury rather than property loss, its analysis and conclusion that sufficient
due process is afforded through post deprivation remedies available in the Maryland courts also applies to cases of
lost or stolen property, given Juncker=s reliance on Parratt in dismissing plaintiff=s due process claim.

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which they were sent. Id., Ex. 6. At that time, Plaintiff requested to withdraw the ARP and was
provided an ARP Withdrawal Form which Schurg avers he witnessed Plaintiff sign. Id., Ex. 1, & 7.
The withdrawal was sent to the ARP coordinator and the case closed. Plaintiff’s grievance filed in
the IGO regarding this ARP was dismissed, the IGO finding Plaintiff’s had withdrawn the ARP. Id.,
Ex. 8 & 9.
In his opposition, Plaintiff indicates that funds were improperly taken from his account, not in
relation to the mailing of packages, but in order to issue him a second identification card. He states
that he refused to sign the disbursement because his identification card had not been lost but was held
by other correctional staff. He was advised that funds would be withdrawn without his consent. ECF
No. 24. He indicates that this is the basis of the instant complaint4 and that is effort to file an appeal
to the IGO on this issue was thwarted by what he maintains is a forged withdrawal form. Id.
As noted above, even if Plaintiff’s property were improperly taken and/or mishandled as
he alleges, such a claim does not rise to a constitutional violation. Further, to the extent he alleges
that correctional staff failed to follow written directives the adoption of procedural guidelines
does not give rise to a liberty interest; thus, the failure to follow regulations does not, in and of
itself, result in a violation of due process. See Culbert v. Young, 834 F.2d 624, 628 (7th Cir.
1987).5
Plaintiff’s claim regarding interference with his administrative remedy process fairs no better.
While the long standing rule has been that prisoners have no constitutional right to participate in an

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Despite his contention that his claim is about the money withdrawn for a second identification card, he also
discusses, in his opposition, the alleged shortcomings in the handling of his property mailed out of the institution.
Id.
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Regardless of any alleged violations of internal regulations, failure to follow a prison directive or regulation does
not give rise to a federal claim, if constitutional minima are met. See Myers v. Kelvenhagen, 97 F.3d 91, 94 (5th Cir.
1996).

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institutional grievance procedure, see Adams v. Rice, 40 F. 3d 72, 75 (4th Cir. 1994), with the passage
of the Prison Litigation Reform Act 42 U.S.C. ' 1997e(a) the issue is less clear. The PLRA requires
exhaustion of administrative remedies before an action concerning prison conditions may be filed by
a prisoner. The Supreme Court has interpreted the language of this provision broadly, holding that
the phrase Aprison conditions@ encompasses Aall 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). Further clarification regarding exhaustion as a
pleading requirement was announced by the Fourth Circuit in Anderson v. XYZ Correctional Health
Services, Inc., 407 F. 3d 674 (4th Cir. 2005). The court held that, Aan inmate=s failure to exhaust his
administrative remedies must be viewed as an affirmative defense that should be pleaded or otherwise
properly raised by the defendant.@ Id. at 681. To the extent that a prisoner=s attempts to exhaust the
administrative remedy process are thwarted by prison officials= misconduct, that evidence may be
presented in response to the affirmative defense.

Id. at 682. Thus, an inability to access the

administrative remedy procedure based on an alleged refusal by prison officials to enforce the rules
governing the process does not run afoul of the due process clause.
In his opposition Plaintiff alleges, for the first time, that the alleged mishandling of his
property was retaliatory in nature because he had previously filed complaints against property room
staff. ECF No. 25, p. 6. In order to prevail on a claim of retaliation, Plaintiff 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). A>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 (2d 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

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insufficient to state claim). Plaintiff’s bald claim of retaliation fails.
Conclusion
The dispositive motion filed on behalf of Thomas Sires and Eric Schurg will be granted.
Plaintiff’s complaint against Officer Weisenmiller will be dismissed. A separate Order follow.

/s/
PETER J. MESSITTE
July 7, 2014

UNITED STATES DISTRICT JUDGE

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