Pevie v. Wolfe et al

Filing 30

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 2/28/2017. (c/m 2/28/2017 aos, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

TERRANCE PEVIE,
Prisoner Identification No. 404-424,
Plaintiff,
v.
Civil Action No. TDC-15-3271
JOHN WOLFE, Warden, and
LA'TRICIA TAYLOR,
Correctional Hearing Officer,
Defendants.

MEMORANDUM OPINION
Plaintiff Terrance Pevie, currently confined at Eastern Correctional Institution, has filed
this civil rights complaint pursuant to 42 U.S.C. ~ 1983 alleging that while confined at Jessup
Correctional Institution ("JCI"), Warden John Wolfe and Correctional Hearing Officer La'Tricia
Taylor (collectively, "Defendants") denied him due process in prison disciplinary proceedings.
Pending before the Court are Pevie's third Motion to Appoint Counsel and Defendants' Motion
to Dismiss or, in the Alternative, Motion for Summary Judgment.

Having reviewed the filings

on both Motions, the Court finds no hearing necessary. See D. Md. Local R. 105.6 (2016). For
the reasons set forth below, Pevie's

third Motion to Appoint Counsel is DENIED,

and

Defendants' Motion, construed as a motion for summary judgment, is GRANTED.
BACKGROUND
The salient facts of this case are not in dispute. On June 23,2014,

Correctional Officer

Lewis discovered that Pevie and his cellmate had an unauthorized cover over their cell window
and thus rescinded their daily recreation period.

Pevie and his cellmate complained first to

Officer Lewis, then to Sergeant Lionel Burnett. At some point, the conversation with Sergeant
Burnett became argumentative, and Pevie and his cellmate were ordered to return to their cell.
Pevie failed to comply, so Sergeant Burnett handcuffed him.

According to Sergeant Burnett,

while he was escorting Pevie from the scene, Pevie threatened him.
That same day, based on these events, Sergeant Burnett cited Pevie for violating three
prison rules: (1) Rule 104: using intimidating or threatening language; (2) Rule 312: interfering
with a correctional officer's duties; and (3) Rule 400: disobeying an order. Pevie was provided
written notice of the alleged infractions, and a hearing was scheduled for July 17, 2014. Upon
receipt of the notice, Pevie requested in writing to call Officer Lewis as a witness at the hearing.
Immediately prior to the start of the July 17, 2014 hearing convened by Hearing Officer
Taylor, Pevie orally reiterated his request to call Officer Lewis as a witness.
prior written request, Officer Lewis was present and ready to testify.

Based on Pevie's

Sergeant Burnett did not

testify; his account of the events was taken from the facts he asserted in the original rule
violation report.

Because Pevie agreed to plead guilty to violating Rule 400, the hearing

proceeded only as to the two remaining alleged violations.

When Pevie testified during the

hearing, he denied that he had threatened Sergeant Burnett.

After Pevie's testimony, Hearing

Officer Taylor asked Pevie if he had any additional information to present. Pevie stated that he
did not, so Hearing Officer Taylor closed the hearing record. Immediately after Hearing Officer
Taylor announced that the record was closed, Pevie asked to call Officer Lewis. Hearing Officer
Taylor refused, reiterating that the record had been closed.
Hearing Officer Taylor credited Sergeant Burnett's account of the events and thus found
Pevie guilty of violating Rules 104 and 312. For the violation of Rule 104, Hearing Officer
Taylor revoked 300 days of good-time credits, imposed a 300-day segregation period, and

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suspended Pevie's visitation privileges for 180 days. For the violations of Rule 312 and Rule
400, Hearing Officer Taylor imposed a 60-day and 45-day segregation period, respectively, to
run concurrent to the 300-day period imposed for his violation of Rule 104. In her written report
of the hearing, Hearing Officer Taylor made no mention ofPevie's

requests at the hearing to call

Officer Lewis as a witness.
Pevie timely appealed Hearing Officer Taylor's decision to Warden Wolfe. Pevie argued
that the refusal to allow him to call Officer Lewis denied him his right to procedural due process.
Warden Wolfe affirmed Hearing Officer Taylor's decision in all respects. Pevie then appealed to
the Inmate Orievance Office ("100"), which scheduled a hearing on his appeal for March 11,
2015. On March 3, 2015, after reviewing the recording of the July 17, 2014 hearing, Randy
Watson, Director of Programs and Services for the Department of Public Safety and Correctional
Services, issued an Order reversing Hearing Officer Taylor's decision, vacating all sanctions
imposed, and remanding the case to the prison for a new hearing before a different hearing
officer. Director Watson noted that the burden of calling witnesses at disciplinary hearings is on
the hearing participant, not the hearing officer, see Md. Code Regs. 12.02.27.26(H)(2) (2012),
such that Hearing Officer Taylor had followed "the letter of the administrative
allowing Pevie to call Officer Lewis as a witness.

law" in not

3d Am. Compi. Ex. 4 at 1, ECF No. 10-4.

However, Director Watson found that the spirit of the law dictated that Pevie should have been
allowed to present his evidence, because Pevie had made his request for Officer Lewis to testify
immediately after the record was closed and before the decision was entered, and because
Officer Lewis was present and ready to testify, such that reopening the record would have caused
the State no appreciable hardship.

In light of Director Watson's determination, Pevie's 100

appeal was found to be moot.

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On April 2, 2015, Pevie proceeded to a second disciplinary hearing in front of a different
hearing officer on all three alleged violations.

At that hearing, he was permitted to call Officer

Lewis as a witness. Officer Lewis testified that he was present throughout the incident between
Pevie and Sergeant Burnett and that he did not hear Pevie make any threats.

He also testified,

however, that prior to being handcuffed, Pevie appeared aggressive and was not complying with
instructions.

Pevie again denied threatening Sergeant Burnett.

Sergeant Burnett again did not

testify.
Based on this evidence, the hearing officer found that Pevie had violated Rule 312
(interfering with a correctional officer's duties) and Rule 400 (disobeying an order), but that he
had not violated Rule 104 (using intimidating or threatening language).
imposed 15 days of segregation for each violation, to run concurrently.

The hearing officer
Those terms were

already satisfied because at that point Pevie had already served the 300 days of segregation
originally imposed. The hearing officer imposed no other punishment.
On April 27, 2016, Pevie filed this lawsuit in which he has asserted that Hearing Officer
Taylor violated his due process rights by not allowing him to call Officer Lewis as a witness at
the first disciplinary hearing, and that Warden Wolfe violated those rights by affirming Hearing
Officer Taylor's

determination.

Since filing his initial Complaint, Pevie has amended his

allegations three times, primarily to provide the Court with the documentary trail leading from
his first disciplinary hearing to his second.
~.

In particular, the exhibits attached to Pevie's

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.

.

Complaint include: (1) the first Hearing Record, (2) his appeal to and the response from Warden
Wolfe, (3) his appeal to the IGO, (4) Director Watson's Order, (5) the IGO opinion finding his
appeal moot, (6) the second Hearing Record, (7) a letter from a prison psychologist stating that
Pevie experienced anger, anxiety, and stress while confined in segregation during his appeal of

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the discipline imposed at the first hearing, and (8) a pending motion in Pevie's underlying
criminal case seeking a sentence reduction based on Pevie's behavior in prison.

Pevie seeks

compensatory and punitive damages for Defendants' alleged violation of his due process rights
based on the physical and mental impact of the, disciplinary proceedings and his subsequent
placement in segregation, and the potential negative impact of those proceedings on his pending
,

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motion for a reduction of sentence in his underlying criminal proceedings.
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On July 13,2016, Defendants filed their Motion to Dismiss or, in the Alternative, Motion
for Summary Judgment to which they attached exhibits that duplicate Pevie's first six exhibits.
Defendants' also included as an exhibit Pevie's written acknowledgment
violation notice.
,

that he received the

Defendants' Motion became ripe for disposition on November 9, 2016.

On

.

November 16,2016, Pevie submitted correspondence complaining that he has been subjected to
cell searches, that he has sent legal mail home to protect it from tampering, and that he had been
placed in administrative segregation pending a transfer that is now complete.

Because Pevie's

assertions in that correspondence are not germane to the due process issue that forms the basis of
his Complaint, the Court does not consider thoscassertions

in resolving the pending dispositive

motion.
DISCUSSION
I.

Motion to Appoint Counsel
On December 7, 2016, Pevie filed his third Motion to Appoint Counsel.

previously denied Pevie's first two such motions without prejudice.

This Court

In his third Motion, Pevie

offers arguments for appointment of counsel comparable to those offered in his prior motions.
He asserts that he lacks the funds to retain counsel, his imprisonment limits his access to legal

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research, and his imprisonment makes him unable to interview witnesses. Pevie also claims that
prison officials have stolen documents relating to this litigation.
These reasons do not establish cause to appoint counsel.
attorney to represent any person" proceeding
counsel."

28 U.S.C.

S

in forma pauperis

"The court may request an
who is "unable to afford

1915(e)(1) (2012). In civil actions, however, the Court appoints counsel

only in exceptional circumstances.

Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). In doing

so, the Court considers "the type and complexity of the case," whether the plaintiff has a
colorable claim, and the plaintiffs

ability to prosecute the claim. See Whisenant v. Yuam, 739

F.2d 160, 163 (4th Cir. 1984) (internal citations omitted), abrogated on other grounds by
Mallard v. Us. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989).

Exceptional

circumstances include a litigant who "is barely able to read or write," id. at 162, or clearly "has a
colorable claim but lacks the capacity to present it," Berry v. Gutierrez, 587 F. Supp. 2d 717, 723
(E.D. Va. 2008); see also Altevogt v. Kirwan, No. WDQ-11-1061, 2012 WL 135283, at *2 (D.
Md. Jan. 13, 2012) .. Inherent in this analysis is that one's indigence is insufficient to establish
exceptional circumstances.

Pevie's other proffered reasons also do not present exceptional

circumstances or a particular need that would warrant appointment of an attorney. Rather, Pevie
has adequately presented his claims and has been able to provide the Court with all documents
necessary to resolve his case. The Motion for Appointment of Counsel will be denied.
II.

Motion to Dismiss, or in the Alternative, Motion for Summary Judgment
A.

Legal Standard

Defendants move to dismiss the Amended Complaint for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment under Rule
56.

Ordinarily,

summary judgment

is inappropriate

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"where the parties have not had an

opportunity for reasonable discovery." £.1 du Pont De Nemours and Co. v. Kolon Indus., Inc.,
637 F.3d 435, 448-49 (4th Cir. 2012).

Here, however, no discovery appears necessary.

parties have each submitted to the Court-as
attachments

to Defendants'

The

exhibits attached to Pevie's Complaint and as

Motion-substantially

identical

records.

Pevie has nowhere

indicated that he needs discovery to obtain information essential to his opposition. See Pisano v.
Strach, 743 F.3d 927, 931 (4th Cir. 2015).

Indeed, in his Opposition to Defendants' Motion,

Pevie neither objects to consideration of Defendants' Motion as a motion for summary judgment
nor asserts that there are disputed issues of fact. Where, as here, the plaintiff has been afforded
the opportunity to oppose summary judgment on the grounds that discovery is needed but has not
done so; there is no dispute between the parties as to what constitutes the material elements of
the record; and the record appears to be complete, it is appropriate to consider Defendants'
Motion as a motion for summary judgment.

See Pisano, 743 F.3d at 931 (noting that a court

should hesitate to proceed to summary judgment when there is "necessary information" that
might be obtained in discovery); Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214,
244 (4th Cir. 2002) (stating that "the party opposing summary judgment cannot complain that
summary judgment was granted without discovery unless that party has made an attempt to
oppose the motion on the grounds that more time was needed for discovery") (citation omitted).
Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the
moving party demonstrates there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the light most
favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts supported in

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the record, not simply assertions in the pleadings.
346F.3d

514, 522 (4th Cir. }003).
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Bouchat v. Bait. Ravens Football Club, Inc.,

The nonmoving party has the burden to show a genuine

I.

~

dispute on a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986).

A fact is "material" if it "might affect the outcome of the suit under the

governing law." Anderson, 477 U.S. at 248.

A dispute of material fact is only "genuine" if

sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict for
.

,

that party. Id. at 248-49.
B.

Due Process

Pevie's due process claim is based on two central factual assertions:

(1) that Hearing

Officer Taylor did not allow him to call Officer Lewis at his first disciplinary hearing and (2)
,
that Warden Wolfe affirmed Hearing Officer Taylor's hearing decision .. Defendants do not
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dispute these assertions.
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Accordingly, there is no genuine dispute of material fact between the

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parties, only a legal dispute whether Pevie has adequately stated a due process claim based on
,

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these facts; The Court thus turns to the legal merits of that claim .

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protected liberty interest under the Fourteenth Amendment in maintaining earned good-time
credits, which allow for an inmate's early release, such that his good-time credits may'not be
revoked without procedural due process.

See id. at 558.

Based on Wolff, Pevie asserts that

.

Hearing Officer Taylor's refusal to reopen the hearing record to allow Pevie to call Officer
Lewis deprived him of that due process. Whether Pevie's argument is legally sound, particularly
considering

.

.

that the burden of calling witnesses was his to carry, see Md. Code Regs.
.

12.02.27,26(H)(2), n,eed not be resolved here. Hearing Officer Taylor's determination based on
the first disciplinary hearing was reversed, the sanctions she imposed were vacated, and Pevie's
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8

good-time credits were fully restored.

Pevie was then afforded a new hearing at which he was

able to present all of the evidence that he wished to offer, including the testimony of Officer
Lewis.

As a result of the second disciplinary hearing, Pevie received a significantly reduced

sanction of 15 days of segregation,

and he had no good-time

credits rescinded.

Any

infringement of Pevie's due process rights based on the first disciplinary hearing was therefore
cured by Pevie's . successful administrative appeal, because "[t]here is no denial of due process if
.
'.
,

the error the inmate complains of is corrected in the administrative appeal process."

Morissette

v. Peters, 45 F.3d 1119, 1122 (7th Cir. 1995). See Harper v. Lee, 938 F.2d 104, 105 (8th Cir.
1991) (finding no due process violation when the wrongful failure to permit a prisoner to offer
log book evidence at a disciplinary hearing was reversed on appeal and corrected at a second
disciplinary hearing, because the "administrative

appeal process is part of the due process

protection afforded prisoners"); Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992) (holding
that the prisoner-plaintiff

"was ultimately afforded his due process protections"

because the

-"

administrative reversal of his disciplinary proceedings "cured any procedural defect that may
have occurred"). As a result, Pevie's due process claim under Woif.ffails

as a matter oflaw.

To the extent that Pevie's Complaint can be construed to assert other harms as the result
of the disciplinary proceedings, his allegations do not implicate a constitutionally

protected

liberty interest that would allow Pevie to succeed on a due process claim. Pevie asserts that by
the time the sanctions imposed at the first disciplinary hearing were vacated, he had already
served the full term of segregation, such that he unjustifiably ended up serving more time in
segregation than the 15 days ultimately imposed.

The United States Supreme Court, however,

has held that liberty interests protected by due process generally extend only to those conditions
that impose "atypical and significant hardship on the inmate in relation to the ordinary incidents

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of prison life." Sandinv.

Conner, 515 U.S. 472, 484 (1995).

In Sandin, an inmate who was

sentenced to 30 days of disciplinary segregation, served that time, then had the disciplinary
decision overturned on appeal, filed a due process claim under 42 U.S.C.
Wolff

Id. at 476.

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1983, relying on

The Court held that the disciplinary segregation, which did not affect the

duration of the prison sentence, did not present the type of deprivation that implicates a
constitutional liberty interest giving rise to due process rights. Id. at 486. Likewise, the United
States Court of Appeals for the Fourth Circuit has held that inmates have no liberty interest in
avoiding, and thus no due process claim stemming from, being placed into administrative
segregation.

Beverati v. Smith, 120 F.3d 500, 502-04 (4th Cir. 1997) (rejecting a due process

claim by inmates held in administrative segregation for six months after disciplinary charges
were resolved).

The Court so held even though the actual conditions in segregation were

markedly "more burdensome than those imposed on the general prison population," because
those conditions were "not so atypical" that they "imposed a significant hardship in relation to
the ordinary incidents of prison life."

Id. at 504 (noting the inmates' claims that segregation

included vermin-infested cells, human waste in cells, leaking toilets, unbearable heat, less food,
reduced access to clean clothes and linens, reduced out-of-cell time, no outdoor recreation time,
and no educational or religious services). Where Pevie has neither claimed nor offered evidence
that the conditions of his segregation went beyond those in Sandin and Beverati such that they
meet this "atypical and significant hardship" standard, the Court finds no due process violation
arising from Pevie's time in segregation. Sandin, 515 U.S. at 484.
Similarly, although the record is not clear whether Pevie was actually deprived of
visitation rights before his original disciplinary sanctions were rescinded, any such loss would
not implicate a constitutionally protected liberty interest. See Williams v. Ozmint, 716 F.3d 801,

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807-08 n.9 (4th Cir. 2013) (holding, in the context of a qualified immunity analysis, that a two~
year suspension

of an inma~e's visitation privileges

did not violate a clearly established

constitutional right); White v. Keller, 438 F. Supp. 110, 120 (D. Md. 1977), aff'd per curiam 588
F.2d 913 (4th Cir. 1978) (holding that there is no constitutional
privileges giving rise to procedural due process protections).

right to prison visitation

Finally, the results of the first

disciplinary proceeding had no effect on Pevie's motion to reduce sentence in his underlying
criminal case because, as Pevie does not dispute, that motion remains pending.
Because Pevie has not identified a due process violation arising from the failure to permit
his requested witness to testify at the first disciplinary hearing, Defendants' motion for summary
judgment will be granted.
CONCLUSION
For the foregoing

reasons, Pevie's

Motion to Appoint Counsel is DENIED,

Defendants' Motion, construed as a motion for summary judgment, is GRANTED.
Order shall issue.

Date: February 28, 2017
THEODORE D. CHU
United States District

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and

A separate