George v. McDonough et al

Filing 16

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 8/17/2017. (c/m 8/17/2017 aos, Deputy Clerk)

C"

IN TIlE UNITEI> STATES D1STI{ICT COUR!L';,'
FOR TilE I>ISTRICT OF MARYLANI> l,.J I , ••v,
SO/llltel'll

TEHIWN

GEOIHa:,

znn

DiI';s;o/l

*

Plaintiff,

FILED. C:.,,~ ,T
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AUG11 A 10: 22
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*

v.

*
MARY LOU MCI>ONOUGH,

el

Civil Actinn I'In. G,JII-16-1J53

al.,

*
I>cfcndants.

*

*

*

*

*

*

*

*

MEMORANI>UM
PlaintiffTehron
this pro se 42

at Princc Gcorgc's

*

*

claim against Dcfcndants

and Law Librarian B. McTcrnan

*

*

*

OPINION

Gcorgc. an inmatc at thc Ccntral tvlaryland Corrcctional

U.s.c. ~ 1983

Mcrccdcs Ilcrnandcz

•

*

Facility. brings

Wan.lcn \1ary LOll i\!cDonollgh.

Dr.

IlH'dcnying him acccss tothc law library

County Detention Ccntcr ("PGCDC").

dcnying him acccss to thc gric\',lIKc

proccss. and placing him in an unclean cell alicr Gcorgc wcnt on a hungcr strikc. ECF No. I.
DcICndants McDonough

and McTcrnan

havc Iiled a Motion to Dismiss or altcrnatively

Summary .Judgmcnt. lOCI' No. 12. Tbc Court lil1lls a hcaring in this mattcr unncccssary.
I.ocal Rule 105.6 (D. Md. 2016). For thc rcasons that Il)llow. Dcfcndants'

arc dismisscd.

DcICndant llernandcz.

PlaintifTshal1 be givcn thc opportunity

SCI'

Motion. construcd as a

Motion IlH' Summary .Judgmcnt. shall bc grantcd. and thc claims against i\!cDonough
McTiernan

Illr

and

to amcnd his complaint against

I.

BACKGROUND
I'laintiffGeorge

SykesYi lie. Maryland.

is currently an inmate at the Central Maryland Correctional

Facility in

\\here he has resided since at least October 2016.1 While preyiously

housed at "GCDC as a pre-trial detainee from July 2015 to August 2015 and from January 2016
to June 2016. George filed a sell~represenled
seeking money damages against I'GCnC

ci\'il rights complaint

Warden Mary Lou McDonough.

Ilernandez.

and L<I\\' Librarian B. McTernan.

at PGCDe.

on July 1.2015. he was banned li'omusing

returned to I'GCnC

~ 19X~.

Dr. Mercedes

ECF No. I. George states that during his lirst stay
the library. Id at 4. When George

in January of 20 16. the ban allegedly remained in effect. Id George states

that alier his return. McTernan
"what she wants. sometimes
grieyanee

under 42 USe.

failed to proyide copies of case law at his request. sending him

nothing at aiL" Id George further alleges that he was denied a

form until he began a hunger strike: and alier initiating the hunger strike. George \\'as

stripped of his clothing and possessions.

including his water cup. and placed in a dirty cell. Id

As a result. George was allegedly unable to drink water and could not participate

in programs or

work release. Id
A. Access In Lihrary
In support of his claim. George provides copies of his case law requests and responscs
li'omlibrary

personnel relating to his most reecnt contacts with library personnel.l'CF

On February &. 2016. library staff inl,mned
in the ciYillaw area. and

I

\\'C

George that the "definitions

do not proyide this inl,mnation."

No. 14-1.

you haye asked

i,"' arc

Ill. at 1O. The note also inl')l'Ined

George pleaded guilty to the olTcnsc for which he is currentlv incarcerated on June 27. 2016 .. \'('1.' Case No. CT-

160125 X (Cir. Coun Prince George' s ely.) http://('ascscarch.~oLlrts.statc.llld.lIs!('ascscan.:hlproccssl)isc
')

lailller.j is.

George that stall does not provide copies Crom books. allll suggested that George obtain the
inllJrlnation requested

Irom his anorney.2 /d

George sent another request Itll' case law on February 19.2016. ECF No. 1-1-1at I. On
February 23. 2016. "Law Library StaIr

indicated that entire citations to eases were needed

beltlre they could pro\'ide the requested eopy work. Ill: at 9. A second request on February 26.
2016. recei\'ed on Mareh 2. 2016. elicited a response Irom Law Library stall indicating that
George had provided insuflicient

inCormation Itlr them to lind the requested eases. that his

second request that week exceeded the ten case limit. and that one ease was unrelated to
George's

eriminal ease. and thus presumably

would not be provided. /d at X.

On March 7. 2016. George again complained
requested.

ECF No. 1-1-1at 2. On ivlareh

J

that he did not reeeive all the cases he

0.20 I(,. Law Library StaCCnotilied George that they

had provided li\'e oCthe ten items requested. but did not inelude the remaining eopies beeause
the subjeet matter was not relevant. or could not be Itllllld with the eitation pro\'ided. !d at 6. On
April 25. 2016. George again requested copies oC ease law. /d at 3.
T\\(l days later. on April 27. 2016. George complained

that he had recei\'ed nothing.

despite three requests spanning three weeks. ECF No. 1-1-1at -I. That same day. April 27. 2016.
Law Library StaCCinltJrllled George that the eases requested related to use oC excessive I()ree
during arrest. a eivilmaner.

and thus \\We not related to his ClllTent criminal ease. Ill. at 7. Stall

noted that the library "only providelsl

Maryland criminal legal inlol1nation related to your

current ease:' and that iCGeorge eould explain how the material related to his current criminal
case. it would be provided./d

~ A notation

a

011

the bottom

On June 9. 2016. George requested copies oCthe Ci\'il Rights /\et.

orth\? Ilole,

* 1983 ci\'il rights form.!d

apparently

made

by George.

at 10.

,
.J

states that tlK' information

requested pl'rtaincd

to

42 U.S.c. ~ 1983. se\'eral cases. and a copy oj" his court print-out. Id at 5. The outcome oj" this
rcqucst is not noted in the record.
B. Acccss to Gricvancc

Forms

On February 29. 2016. George requested a grievance t(lrI11. ECF No. 14-1 at 13. On
March 9. 2016. il-Iajor Gamble responded that the tirst step in the grievance process is in!llrI11al
resolution.

speaking with the housing unit orticer or zone commander

betlJre requesting
tiled additional

an Inmate Grievance

to discuss the problem.

Form. Id The record does not indicate \Vhether George

t(lrI11al requests J"orgrievance

f(m11s prior to the time he began his hunger strike

in April of 20 16.
C. Placcment
In his Complaint.

in Unclean Cell, Deprivation

of Rcsourecs

George states he was stripped oj" clothing and possessions.

including

his drinking cup. and placcd in a dirty ccll alier he initiated a hunger strike. ECF No. I at 4. Ilis
exhibits show that on April II. 2016. Dr. llernandez
isolation in the special management

ordered Gcorgc's

placcment on medical

housing area beeause he was on a hunger strike. ECF No.

14- I at I I. That same day. George filed a grievance. exprcssing
suicide watch alier initiating a hungcr strike and complaining

displeasure

at bcing placed on

that he was bcing Icd peanut buttcr

thrce times a day with no J"ruit. ECF No. 12.1 at I. lie also stated that hc \Vas un!~lirly banned
Irom the law library and denied the ease copies he rcquested and access to books. ECF No. 12-1
at I: ECF No. 14-1 at 12. Zone Commander

Sgt. Godson investigated

April I I. 2016. Sgt. Godson indicated that I) the f(lOd was nutritionally

the grie\'anee.

and on

adequate. 2) policy

dictated a detainee on a hunger strikc be placed on medical isolation. and 3) thc library \V'(luld
t(1Iward rcquested materials to him. ECF No. 14-1 at 12. The shili commander

4

concurred with

the Iindings on April 12.2016,

and on April 14,2016.

a Lieutenant determined

that the grievance

lacked merit. Id
(). Proccdural

History

George Iiled the instant Complaint
and McTernan

on May 5. 2016. lOCI' No. I. Defendants

tiled a tvlotion to Dismiss. or Alternatively.

ECF No. 12. Pursuant to RO,lehom \'. (iarrisoll.
notilied of DeICndants'
responded

a Motion for Summary JudgmCl1t.

528 F.2d 309. 310 (4th Cir. 1(75). George I\as

Motion, and of his right to lile an opposition.

by Iiling a Motion to Amend Complaint.

was aware of the condition

Itll' the

ol'the cell and

lack ofa drinking cup. lOCI' No. 14. In that Motion. George also states that he "reached

out to the Major and Ms. McDonough

on more than one occasion'"

it!. at I. and pro\'ides

pages of e:\hibits showing his requests It)r case copies, his grievance
and a civil case George initialed in the District Court of Maryland
against Wardcn MeDonough.,1
construed
II.

lOCI' No. 13. George

stating that he received a grievance

day he began his hunger strike. and that Dr. Ilernandez
Georgc's

McDonough

14

!tll"lll dated April II. 2016.

for Prince George's

County

lOCI' No. 14: lOCI' No. 14-1. The Motion to Amend shall be

as George' s Opposition

to Dclcndant" s Motion.

STAN()AR() OF REVIEW

Defendants
12. Ordinarily,

have mO\'ed to dismiss. or in the alternative.

It)r summary judgment.

a court cannot consider matters outside the pleadings

12(b)(6) motion to dismiss. See Bosit:('I"
,

I'. U.S.

ECF No.

\\hen ruling on a Rule

Ainrm's. 510 F.3d 442. 450 (4th Cir. 2(07). If the
.

court docs consider matters outside the pleadings ... the motion must he treated as one It)r
summary judgment

undcr Rulc 56'" and "laJII parties must be given a reasonable

opportunity

to

On May 2. 2016. George liIed a civil contract action ill Stall' court scddng S30.000.00 against J\1cIJOIlOllgh,
McTernan and Ilernandez. The case remains pending. Set! Gl!orge \'. i\/cIJo11tll/gh. Civil Case No.
0502000117562016 Co. Ct. Prince George's ely. The parties do nol c.\plain what connection. irany. the contract
action mig.ht have with this federal civil rights maltcr.

.t

5

present all the material that is pertinent to the motion."' Fed. R. Civ. 1'. 12(d): see a/so Fin/ey
Lines .foinl I'mleCli\"e Hd Unil 2()() \'. No'."/i,/k S. ('o'."p.. 109 F.3d 993. 997 (4th Cir. 19'17)

Rule 12(b)(6) motion to dismiss supported by extraneous
sunllllary judgment

materials cannot be regarded as one \(lr

until the district court acts to eOl1\'ert the motion by indicating thaI it will not

exelude fi'OI11 consideration
its
appropriate

of the motion the supporting

here to consider the extraneous

See /Vamer \'. Qui/o. No, ELI I-I 2-248.

extraneous

and I'lainlifThad

2012 WI. 3065358. at *2 (D, Md. July 2(1. 2(12)
as one li,r summary

and submits matters outside the pleadings ji,l' the eoun's consideration.

deemed to be on notice that col1\'CJ'sion under Rule 12(d) may occur,
,\Ielm, II'm!l.

It is

as a motion lill' summary judgment.

(-When the movant expressly captions its motion 'in the alternative'

the parties arc

, .-) (quoting I.augh/in \',

Ai'."/IIII'I.\'/111/11.. 149 FJd 253. 261 (4th Cir. 1(98)), Moreo\'er.l'laintiIThas

attached extraneous
considered,

materials").

materials submitted by Ddendants.

notice by vinue of the motion being liled in the alternati\'e

judgment.

also

materials to his Motion to Amend. ECF No, 14. which the Court has

Accordingly.

Defendants'

Summary judgment

motion will be construed as one lill' summary judgment.

is appropriate

under Fcc!. R. Ci\'. 1'. 56(a) when there is no genuine

dispute as to any material 111et.and the moving pany is plainly entitled to judgment
a matter of law, In ,lnder,wlII
Court explained

(-I A I

I'.

in its Ill\'(lI' as

I.iherly LoMy, Inc,. 477 U ,S, 242. 249 ( 1986). the Supreme

that. in considering

a motion lor summary judgment.

himself to weigh the evidence and determine

the -judge's

the truth of the matter but to determine

there is a genuine issue for trial." A dispute about a materialllict

party."' Ie/. at 248, Thus. -the

judge must ask himself not whether he thinks the evidence unmistakably

Ill\'()J"Sone side or the

could relurn a verdict lil)' the [nonmoving

6

I\'hether

is genuine "ifthe evidence is

such that a reasonable jury could return a \'erdiet lill' the nonmoving

other but whether a Illir-mindedjury

function is not

panyl on the

evidenee

presented'"

draw reasonable
Alals/lshila
E/;,()('

inrerences

this inquiry. the Court must vie,,' the tllcts and

"in the light most ravorable

to the party opposing

the motion'"

Elee, Illd/ls, Co, Ltd \'. l('l7;lh lIadio Corp.. 475 U.S, 574. 587-88

\', Nl/\:l'

existence

Id at 252. In undertaking

Fed ('redil

ora "scintilla"

Ullioll. 424 F3d 397. 405 (4th Cif'. 2(05).

orevidence

in support or the nonmoving

preelude an order granting summary judgment.

See Alldersoll.

Finally. a federal eourt must liberally construe
litigallls to allow them rully to develop

potentially

party's case is not surticielllto

477 U,S, at 252.

pleadings

meritorious

party. particularly

0/.1'0

1100\'e\w. the mere

tiled by sell~represented
eases, See I:'ricksoll \', /'an/IIS.

551 U.S. 89. 94 (2007), This Court reviews the Illcts and draws all reasonable
light most Ill\'orable to the nonmoving

(1986): see

"hen

inferenees

in the

that party is sell~represented.

as

here. See SCOII \', Harris. 550 U.S. 372. 378 (2007): see a/so Gordoll \', Leeke. 574 F,2d 1147.
1151 (4th Cif'. 1978). While the Court generally
standards

than Il1l'l11alpleadings

lack a cognizable

should hold pro

dralied by lawyers'"

,Ie

pleadings

it may nevertheless

legal theory or Illil to allege surtieient

..to less stringent

dismiss complaints

IllCtSunder a cognizable

Haines \', Kel'1ler. 404 U.S, 519. 520 (1972): see a/so f/lmer

that

legal theory.

\', Kig/ll. 192 F. Supp. 2d 391. 398

(D, Md. 2(02).
III.

ANALYSIS
A. Aeecss to Library
George's

and Gricvanec

rm'llls

primary e1aim is that he was not provided

lOCI' No, I at 4. Despite his eonlinement.

rull access to the I'CiCDC 1'1'" library.

George retains a eonstitutionally

protected

access to the courts. See BO/llld\' \'. SlIIilh. 430 U,S, 817. 821 (1977). Howcver:
BO/llld,' does not guarantee inmates the "herewithal
to transtlll'll1
themselves into litigating engines capable or tiling everything li'Om
shareholder derivative actions to slip-and-tllil e1aims. The tools it
requires to be provided are those that the inmates need in order to

7

right or

atlack their scntcnces. directly or collatcrally.
and in order to
challenge the conditions of their conlincment.
Impairment of any
other litigating capacity is simply one of the incidental (and
perfectly
constitutional)
consequences
of
eOI1\'ietion
and

incan.:crat iOIl.
Lell'is \'. ('asey. 518 U.S. 343.355

(1996). "IAI prisoner wishing to establish

an unconstitutional

burden on his right of access to the courts must show 'actual injury' to .the capability
contemplatcd
.\'elherloi/(I.

challenges

to scntences

because of the denial ofaecess

("'ITlhe predicate

that a "nonfi'ivolous"

to the courts./d.

in part. concurringjudgmcnt):

satisfies this obligation

was entitled to meaningful

wherc a pretrial dctaince

2(11) (citing (Jllilei/ SIOles
Ilere. George's

1'.

536 U.S. 403. 415-16

(2002)
test and

10

\\hile

access to the courts ... the State

is pnn-idcd professional
20 II WI. 5842628.

cxhibits

demonstrate

that although
criminalla\\'

citation to assist library stafr in locating the requested
that ci\'il case law conccrning

criminal case was not providcd.

at

legal assistance."

* I (D.

1\,ld. Nm'. 18.

he was not pcrmitled

to enter the

ifhe was able to provide sul'licicnt
cases. ECF No. 14-1 at 7. Although

matlcrs not directly rclated to his pending

this broadcr range of library services was not constitutionally

required and provides no basis fiJr damages.
2010 WI. 3938343.

in part. dissenting

('hOIIllOIl. 584 F.2d 1358. 1360 (4th Cir. 1978)).

library. he was provided copics ofrelevanl

George complains

concurring

claim is more than hope."). Additionally.

No. CIV.A. DKC-II-1752.

1'.('/'Imi/('/'.

\'. I/orh/l/:\'.

claim \vas lost

\\ell enough to apply the 'nonli'iH)lous'

nature of the underlying

as a pre-trial detainee.

at 355. Actual injury

and "arguable"

at 399 (Souter..I..

see olso Chrislofiher

claim [must] be described

show the 'arguable'

Toolller

bellll'c the courts .... () D"II \'.

of conlinement

112 F.3d 773. 776 (4th Cir. 1997). quoting Lell'is. 518U.S.

oecurs \\hen a prisoner demonstrates

Plaintiff

or conditions

of bringing

See. e.g .. Kelly \'. Slol/lli'r.

at *4 (D. Md, Oct. 6. 2(10) (no constitutional

8

No. CIV.A A W-10-770.

violation

\\herc there \\as no

law lihrary at plaintiIrs
and individuallihrary

current prison l~lCility. hut inmates were afl(mled
passes),

Further. George. wbo was represented
his access-to-courts
"'actual

weekly library \'isits

hy counscl in his criminal case. cannot prevail on

claim against McDonough.

injury' to 'thc capability

ofhringing

McTernan.
contemplated

or bel' stall bccause he cannot show
challenges

to sentences

or conditions

ODell \', Ne/herlund. 112 F.3d 773. 776 (4th Cir. 1997)

ofcontinement

beli)!'e the courts:"'

(quoting

518 U.S. at 355). Indeed. actual injury is not alleged. much less shown. in this

Lell';s.

casc,4 See, e.g .. Roherl,\ \', Sheur;n. No. CV RDB-13-1528.
May

n. 2(16)

to nonli'in)lous

(linding

no right-to-access

legal claims):

2016 WI. 3044848.

at *4 (D. l.1d.

claim wherc prisoner did not demonstrate

rOling-Bey \', Kennel!\'. No, CIV,A . .IFM-12-0162.

1976004. at *4 (D. Md. May 10.2(13)

(Iinding no right-to-access

any injury

2013 WI,

claim wherc prisoner's

claim

.....

of actual injurv was "'val!uc and conclusorv"'),
.
Georgc also complains

that he could not ohtain gricvancc

limns. a limn of an access-to-

courts claim, ECF NO.1 at4. See, e.g .. Tur"ley \', S/oll!kr. No, CIV.A. GI,R-13-522.
768838. at *6 (D, Md. Feb. 21. 2(14). George's
grievances

inlimnally.

2014 WI,

exhibits show that he was told to present his

and that he was provided a grievance

limn at tbe time of his placement

on

the special housing tier. EC F No, 14-1. George does not spcci fy that any of the named
Delendants

were rcsponsible

specify actual harm resulting
768838. at *6 (dcnying

lill' denying or delaying
from such actions.

acccss-to-courts

thcrc was "'no C\'idence submitted

access to grievance

lill'ms. and hc I~lils to

ECF NO.1 at2. 4. See 1ill'"ley. 2014 WI,

claim where plaintiff did not sh()\\' actual injury and

by I'laintilTto

support the bald assertion

that a timcly liled

~ George does not indicate thm Defendant Ilcrnandez was in any way involved in his railed quest 10 obtain copies of
legal materials. or that she played any role in the alleged denial of grievance forms. Thus. cven had Ikrn<1ndcl heen
served with the Complaint. she "oull! be entitled to dismissal from the acccss.lO.courts and denial of ~ricvancc
forms allegations under 28 U.S.C. ~ 1915A. authorizing this Court to screen prisoner complaints.

9

~

grievance

\vas intentionally

misdirected

processed by a chain of command

or ignored").

and ultimately

Indeed. once tiled. George's

of Rcsourecs

Finally. George does not allege action on the part of Defcndants
his placement

\vas

found to be without merit. lOCI' No. 14-1 at 12.

B. Placcmcnt in Unclcan Ccll, J)cprh'ation

McTernan concerning

gricvance

in a dirty. special-housing

McDonough

or

medical cell. and the resultant

taking of his clothing. pcrsonal property. and drinking cup. lOCI' No. I at 4: ECF No. 14-1 at II.
Exhibits submitted

by the Plaintiff seem to indicate that Dr. llernandez.

\lho has not been sen'ed

with process in this case. placed him in the cell. see lOCI' No. 14-1 at 11. But thc allegations
the Complaint
llernandez
condition.

do not specify that it was Dr. Hernandez

knc\l' of the complaints
his loss of possessions.

who made this decision. or that Dr.

that allegedly motivated

the transfer. or of thc cell" s

and his inability to obtain drinking water in the cell. ECF No.

I at 1.4. Thus. George shall be pnn'ided

21 days to amend his Complaint

against llernandez

provide a specific factual basis for his e1aim. or ri,sk dismissal of his claim against llernandez
without prejudice and without further warning.
IV.

CONCLUSION
George has lililed to establish a violation of constitutional

McDonough

and McTernan.

McTcrnan's

summary judgment

Complaint

in

rights by Defcndants

A separate Order shall be entered granting McDonough
motion and providing George an opportunity

with regard to Defendant

and

to amcnd his

Ilernandez.

If //7/ZO/7

~-.

Datc

I-(!-~-J-:L----

United States District Judge

10

to