Middleton v. Warden

Filing 2

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 7/24/2017. (c/m 07/24/2017 jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

EARL F. MIDDLETON,
Plaintiff,

Case No.: GJH-17-1443

V.

WARDEN,
Defendant.
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MEMORANDUM OPINION
On May 24, 2017, Plaintiff filed the above-captioned case pro-se pursuant to 42 U.S.C.
§ 1983 alleging that his transfer to a new prison facility violated his constitutional rights. ECF
No. 1. Plaintiff did not file a Motion to Proceed in Forma Pauperis, but because he did not pay
the filing fee, the Court will treat this claim as if it has been filed pursuant to the in forma
pauperis statute. The in forma pauperis statute requires courts to dismiss cases of selfrepresented plaintiffs proceeding in forma pauperis that are frivolous or fail to state a claim on
which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). For the reasons that follow, Plaintiff's
Complaint will be dismissed.
I. BACKGROUND'
Plaintiff is 69 years old and currently serving a life sentence in Maryland. ECF No. 1 at
1, 4. In September 2012, he was transferred to the Maryland Correctional Institution
Hagerstown (MCIH) where he held a job that provided both exercise and the opportunity to go

All facts are taken from Plaintiffs Complaint, or documents integral to and relied upon in the Complaint, and are
accepted as true.

outside when needed to relieve his symptoms associated with "COPD." Id. at 3.3 In addition,
while at MCIH, a nurse came to his housing unit a couple of times a day to monitor his blood
pressure and staff would look out for him to ensure his health did not suffer. Id. at 3,4.
On March 28, 2017, Plaintiff was advised he was being transferred to Maryland
Correctional Institution Jessup (MCIJ). Id. at 1. When he asked his classification counselor
about the transfer, he was advised that the decision to transfer him came from headquarters and
not from the classification department, which is the procedural norm. Id. at 2-3. He claims that
the fact that staff from the Department of Public Safety and Correctional Services (DPSCS), and
not the classification department, created the prisoner transfer list violates DPSCS's nondiscrimination policy. Id. at 3. This policy states in relevant part that "no sanctions will be
allowed which adversely affects the health, physical welfare or psychological wellbeing of
inmates." Id. at 7. Plaintiff argues that the classification department staff is in a better position
than DPSCS staff to determine which prisoners should be transferred. Id. at 3. However,
Plaintiff later adds that sometimes inmates are put on a transfer list by correctional staff that are
not part of the classification department. Id. at 8.
Although Plaintiff acknowledges that "a[n] inmate that is serving a sentence in the state
of Maryland has no protected liberty interest in being subjected to an institutional transfer," he
claims that the non-discrimination policy creates a liberty interest protected by the Due Process
Clause. Id. at 2, 5. Plaintiff claims that his transfer violated that liberty interest because it had
adverse effects on his health and wellbeing. Id. at 4. For example, Plaintiff claims that as a
result of the transfer, he no longer has a job assignment that allows him proper exercise. Id. at 8.

' Plaintiff does not explain the meaning of "COPD", but the term commonly refers to a medical condition known as
chronic obstructive pulmonary disease, a "chronic inflammatory lung disease that causes obstructed airflow from the
lungs." COPD Overview Mayo Clinic http://www.mayoclinic.org/diseases-conditions/copd/home ovc-20204882
(last visited July 24, 2017).

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As a result, he is now required to use three inhalers instead of two to treat his COPD and his
dosage of blood pressure medication has doubled. Id. at 8.
Plaintiff also claims that if his transfer was made because of his status as a life prisoner or
because of his age, then the transfer would also be in violation of the non-discrimination policy.
Id. at 4.
On May 16, 2017, Plaintiff was transferred from MCIJ to Eastern Correctional Institute.
ECF No. 1 at 9. However, he states he still wishes to proceed with his claims. /c/.4
STANDARD OF REVIEW
Title 28 U.S.C. § 1915A requires a district court to screen any complaint "in which a
prisoner seeks redress from a governmental entity or officer or employee of a governmental
entity." 28 U.S.C. § 1915A (a); see also McLean v. United States, 566 F.3d 391, 394 (4th Cir.
2009). Before permitting the case to move forward or requiring a response from the defendants,
"the court shall identify cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."
28 U.S.C. § 1915A (b); see also Williamson v. Angelone, 197 F. Supp. 2d 476, 478 (E.D. Va.
2001). The screening is necessary to determine whether defendants should be required to
respond to the action. After careful consideration of the complaint, the Court then determines
whether or not dismissal of the action is appropriate.

4 Plaintiff has filed his claim pursuant to 42 U.S.C. §1983 which states that: "[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory. subjects, or causes to be subjected, any
...
citizen of the United States or other person with the jurisdiction thereof to the deprivation of any rights, privileges or
immunities secured by the Constitution and laws, shall be liable to the party injured ..." (emphasis supplied). Thus,
a claim against the DPSCS is not cognizable under the statute. However, as explained, even if Plaintiff filed a claim
against an individual person, his claim would still fail.

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III. DISCUSSION
To state a procedural due process claim, Plaintiff must "(1) identify a protected liberty or
property interest and (2) demonstrate deprivation of that interest without due process." Prieto v.
Clarke, 780 F. 3d 245, 248 (4th Cir. 2015). "A liberty interest may arise from the Constitution
itself, by reason of guarantees implicit in the word 'liberty,' or it may arise from an expectation
or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005)
(citations omitted). However, if a prisoner bases their claim solely on a state-created liberty
interest and "no state statute, regulation, or policy creates such a liberty interest, a prisoner
cannot [then] 'invoke the procedural protections of the Due Process Clause." Prieto v. Clarke,
780 F.3d 245, 248 (4th Cir.), cert. dismissed, (2015) (quoting Meachum v. Fano, 427 U.S. 215,
224 (1976)).
Here, Plaintiff specifically states that his claim is based on an expectation or interest
created by state policy, acknowledging that "a[n] inmate that is serving a sentence in the state of
Maryland has no protected liberty interest in being subjected to an institutional transfer." ECF
No. 1 at 2. Instead, Plaintiff argues that DPSCS's non-discrimination policy, which prohibits
sanctions that adversely affect the health and wellbeing of inmates, creates an expectation of a
protected liberty interest. ECF No. 1 at 9. However, the policy that Plaintiff cites is not
applicable to his claim. Plaintiff does not allege that he was transferred to MCIJ as a sanction for
misconduct. His only factual allegations are that the transfer list was created by DSPCS staff
rather than staff from the Classification Department, in a manner inconsistent with the prison's
normal process. However, he then acknowledges those process are not always followed.
Although Plaintiff says that the transfer's negative impact on his health and well-being has had

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the "impact of a sanction" that is not the same as alleging that the transfer was imposed as a
sanction.
Harsh prison conditions alone do not give rise to an inmate's liberty interest in avoiding
such conditions. Prieto, 780 F.3d at 251. Without identifying a state statute or policy that gives
rise to a protected liberty interest, Plaintiff cannot state a procedural due process claim.
Plaintiff further speculates that the transfer decision may have been made based on his
age or his status as a life prisoner, which he claims would also violate the prison's nondiscrimination policy. ECF No. 1 at 4. Again, the policy that Plaintiff refers to does not support
his claim. The policy, as provided by Plaintiff, states that "[DPSCS] and (MCIJ) provides equal
access for all inmates to programs, service and activities without regard to race, religion, national
origin, sex, disability, or political beliefs. . . ." Id. at 7. There is no mention of what
characteristics of a prisoner the prison may or may not consider when deciding to transfer
someone.
Moreover, prison officials have wide latitude in ordering the transferring of prisoners.
The Due Process Clause does not, alone, "protect a duly convicted prisoner against transfer from
one institution to another within the state prison system." Meachum, 427 U.S. at 225; see also
Bane v. Va. Dep't of Corr., 2007 U.S. Dist. LEXIS 33742, at *26 (W.D. Va. May 8, 2007)
("prison officials have broad discretion to determine the facility at which an inmate is housed.")
(citing Meachum, 427 U.S. at 224); McLamb v. Jones, 2010 U.S. Dist. LEXIS 53867, at *5 (N.D.
W. Va. Apr. 28, 2010) ("Transfer within the prison or to another prison is within the discretion
of prison officials."). A prisoner may establish a claim against transfer under § 1983 if his
transfer was made by reason of his exercise of a constitutional right. See Minor v. Ritchie Cty.
Courts, No. 5:06CV102, 2008 WL 183724, at *3 (N.D.W.V. Jan. 18, 2008). However, Plaintiff

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does not allege, nor is it evident from the narrative he provides, that his transfer away from
MCIH was in response to his exercising a constitutional right. Therefore, the prison's actions in
transferring Plaintiff does not state a § 1983 claim. Accordingly, the Complaint must be
dismissed for failure to state a claim.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's Complaint shall be dismissed. A separate Order
follows.

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Dated: July2 Y2017

GEORGE J. HAZEL
United States District Judge

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