Johnson v. Melchizedek et al
Filing
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MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 8/29/2018. (c/m to pla 8/30/2018 rss, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
EARL JOHNSON, JR.
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Plaintiff,
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v
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MELCHIZEDEK TODD, et al.1
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Defendants.
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Civil Case No.: GJH-17-2050
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MEMORANDUM OPINION
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On July 20, 2017, Plaintiff Earl Johnson, Jr. filed this 42 U.S.C. § 1983 action concerning
prison disciplinary charges and sanctions that were issued against him in 2012. ECF Nos. 1, 7.
On February 9, 2018, Defendants filed a Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment. ECF No. 29. Plaintiff has filed a Response in Opposition to the dispositive
motion, ECF No. 31, and a Motion for Summary Judgment, ECF No. 34. The matter is now ripe
for review. The court finds a hearing in these matters unnecessary. See Local Rule 105.6 (D. Md.
2016). For the reasons that follow, Plaintiff’s Motion for Summary Judgment is denied and
Defendants’ dispositive Motion, construed as a Motion for Summary Judgment, is granted.
I.
BACKGROUND
On July 31, 2012, Jessup Correctional Institution Officers Jaynice Brooks and
Christopher Kiviyatu conducted a search of Plaintiff’s shared cell. ECF No. 1 at 4; ECF No. 1-1
at 13. According to Plaintiff, an unknown object was on the floor, which Plaintiff picked up; the
1
In his Complaint, Plaintiff named as a Defendant “Melchizedek Tod.” At some point, this was changed on the
docket to “Tod Melchizedek.” The Defendant’s actual name is “Melchizedek Todd,” and the clerk is directed to
docket it as such.
1
object was subsequently determined to contain suboxone, a contraband substance. ECF No. 1 at
4; ECF No. 1-1 at 2, 13. Plaintiff’s cellmate claimed ownership of the object. ECF No. 1 at 4.
As a result of this search, on August 1, 2012, Brooks2 charged Plaintiff with Rule
Violation 114.3 ECF No. 1-1 at 13. Also on August 1, 2012, Plaintiff received another Notice of
Inmate Rule Violation which charged him with Rule Violation 111, possession or use of an
unauthorized drug (excluding alcohol and controlled dangerous substances), and Rule Violation
406, possession of contraband.4 ECF No. 1-1 at 2. This second Notice was drafted by Defendant
Todd and based on his field test of the substance found during the search of Plaintiff’s cell. Id.
The Notice recommended that Plaintiff be placed on administrative segregation pending a
hearing, and Defendant Rowland approved this recommendation. Id.
On August 28, 2012, a disciplinary hearing for each Notice of Rule Violation was held,
both conducted by the same hearing officer. See ECF No. 1-1 at 4–6 (hearing for Rule Violations
111 and 406 assigned Event ID number 2012-336986 and reportedly commenced at 1:40AM);
ECF No. 1-1 at 12–13 (hearing for Rule Violation 114 assigned Event ID number 2012-337072
and reportedly commenced at 1:24AM). The hearing officer found Plaintiff not guilty of Rule
Violation 114. Id. at 12–13. However, the hearing officer found Plaintiff guilty of Rule
Violations 111 and 406, both of which prohibit possession of certain items, explaining that
Plaintiff admitted physical possession of the contraband item by admitting that he was holding
the item in his hand when the officers conducted the cell search. Id. at 5–6. Accordingly, Plaintiff
2
Plaintiff’s assertion that Defendant Kiviyatu issued the Notice of Rule Violation on July 31, 2012, ECF No. 1 at 4,
is contradicted by Plaintiff’s attached submissions, which explain that, although Kiviyatu was part of the search,
Brooks actually issued the violation on August 1, 2012, see ECF No. 1-1 at 13.
3
The record does not make clear what behavior warrants a Rule Violation 114. However, in Terry v. Dep’t of Public
Safety & Corr. Servs., No. ELH-11-1686, 2012 WL 2564779, at *2 (D. Md.), the Court noted that a Rule Violation
114 was issued for “Possession of CDS—Distribute.” In any event, the precise nature of a Rule Violation 114 is
irrelevant to resolving the instant case.
4
Although Plaintiff states that Defendant Todd charged him with Rule Violations 111 and 406 on August 28, 2012,
ECF No. 1 at 4, this is belied by Plaintiff’s attached submissions, which provide that Todd issued—and Plaintiff
acknowledged receipt of—this Notice of Rule Violation on August 1, 2012, see ECF No. 1-1 at 1-2, 8.
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was ordered to be placed in disciplinary segregation for 265 days, lost 265 days of good time
credit, and had his visitation privileges suspended for 18 months. Id. at 6; ECF No. 29-2 at 2.
Plaintiff appealed the result of the disciplinary hearing to the Warden. Id. at 8–10. On
September 24, 2012, the Warden ordered that the guilty finding on both violations be reduced to
“Incident Report.” ECF 1 at 4; ECF No. 1-1 at 11. Plaintiff’s good time credit was restored, ECF
No. 29-2 at 2, and it appears that the other disciplinary sanctions were dismissed or vacated as a
result of the Warden’s conversion of the guilty finding to an incident report. See ECF No. 1 at 4;
ECF No. 1-1 at 11. However, Plaintiff claims that, even after the Warden’s conversion of the
guilty finding to an incident report, Plaintiff remained in segregation housing for an additional 28
days. ECF No. 1 at 4.
At some point between April 2014 and October 2014, Plaintiff filed a civil action against
Defendant Todd in the District Court for Anne Arundel County. See ECF No. 1 at 2 (Plaintiff’s
initial Complaint reports an approximate filing date of April 2014); ECF No. 7 at 2 (Plaintiff’s
Supplemental Complaint reports a filing date of June 4, 2014); Johnson v. Todd, Case No. 07-020009038-2014 (Dist. Ct. Anne Arundel Cnty.), available at http://casesearch.courts.state.md.us/
casesearch/inquiryByCaseNum.jis (Maryland Judiciary Case Search reports filing date of
October 9, 2014). On October 9, 2014, Todd moved to dismiss the state case, but this motion was
denied. ECF No. 7 at 2. Plaintiff states that the state case was disposed of on December 10, 2014,
id., although the Maryland Judiciary Case Search does not report any such dismissal and
designates the case status as “active,” Johnson v. Todd, Case No. 07-02-0009038-2014.
On July 20, 2017, Plaintiff filed the instant action. He alleges that Defendants Kiviyatu
and Todd wrongfully charged him with disciplinary violations, and that such charges violated his
right to procedural due process. ECF No. 1 at 3–4. He asserts that Defendant Rowland is also
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responsible because he “has the last say” over whether Plaintiff should be placed in segregation
housing. Id. at 4. Plaintiff states that the officers’ decision to charge him with disciplinary
violations was “vindictive and discriminatory” and evinced evil motive. Id. However, the
primary focus of the Complaint appears to be the fact that Plaintiff was placed in segregation
housing for 82 days as a result of the charges and subsequently converted guilty finding. Id.
Before Defendants filed a responsive pleading, Plaintiff filed a Supplemental Complaint.5
ECF No. 7 at 1, 3. Aside from the plain statement that Plaintiff is also pursuing claims for “False
Imprisonment, Negligence, and Violation of the MD Constitution,” the Supplemental Complaint
appears aimed solely at preemptively arguing that Plaintiff’s Complaint was timely filed under
the statute of limitations, as it states:
I am transfer [sic] my case from District Court to US District Court limitation is if
the three year run out District Court in MD Court. I am transferring this claim this
should be [illegible] First well as claim see document I sent to show limitation
didnt run 12/10/2014[6] is the time of limitation not to transfer the case out.
Id. at 2 (errors in original).
The Court attempted to serve all three Defendants, but was unable to obtain service on
Defendant Todd. Defendants Kiviyatu and Rowland filed a Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment. ECF No. 29. The Motion argued that Plaintiff’s
claim was barred by the statute of limitations and, alternatively, that he failed to sufficiently
allege that his placement in administrative segregation implicated a constitutionally protected
interest. Id. at 4–6. Plaintiff filed a Response which was captioned in the alternative as a Motion
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Plaintiff wrote “I am Amending my 42 U.S.C. § 1983 complaint” on the top of this filing. ECF No. 7 at 1. In
ordinary parlance, an amended complaint supersedes the original complaint, but the content of Plaintiff’s filing
suggests that he intended it to add to, rather than replace, his original Complaint. Id. at 2 (instructing court, in
statement of claim section, to “see document already filed under Case No. GJH-17-2050” (some capitalization
altered)).
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December 10, 2014 is the date Plaintiff claims the state court adjudicated his case. ECF No. 7 at 2.
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for Summary Judgment. ECF No. 31. He has also filed a separate Motion for Summary
Judgment. ECF No. 34.
II.
STANDARD OF REVIEW
The Defendants’ motion is styled as a Motion to Dismiss, or in the Alternative, for
Summary Judgment. ECF No. 29 at 1. If the Court considers materials outside the pleadings, as
the Court does here, the Court must treat a motion to dismiss as one for summary judgment. Fed.
R. Civ. P. 12(d). When the Court treats a motion to dismiss as a motion for summary judgment,
“[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to
the motion.” Id; see also Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253, 260–61
(4th Cir. 1998). Furthermore, the Court may grant a motion for summary judgment before the
commencement of discovery. See Fed. R. Civ. P. 56(a) (stating that the court “shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact”
without distinguishing pre-or post-discovery).
Summary judgment is appropriate if “materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations . . . ,
admissions, interrogatory answers, or other materials,” Fed. R. Civ. P. 56(c), show that there is
“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
party moving for summary judgment bears the burden of demonstrating that no genuine dispute
exists as to material facts. Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). If the moving party demonstrates that there is no evidence to support the nonmoving
party's case, the burden shifts to the nonmoving party to identify specific facts showing that there
is a genuine issue for trial. See Celotex, 477 U.S. at 322-23. A material fact is one that “might
affect the outcome of the suit under the governing law.” Spriggs v. Diamond Auto Glass, 242
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F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). 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. Anderson, 477 U.S.
at 248. However, the nonmoving party “cannot create a genuine issue of material fact through
mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213,
214 (4th Cir. 1986). When ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson,
477 U.S. at 255. Johnson was provided notice of the State Defendants’ filing of exhibits and
affidavits to support the Motion for Summary Judgment and has not responded. ECF No. 30.
III.
DISCUSSION
A. Transfer from State Court
In his Supplemental Complaint, Plaintiff seeks to “transfer” the civil action that he
initiated in state court in 2014 against Defendant Todd. ECF No. 7 at 2. According to Plaintiff,
because he filed his Complaint within three years of December 10, 2014, the date he claims the
state court action was dismissed, this action was timely filed under the relevant applicable three
year statute of limitations.7 Plaintiff’s argument is legally meritless and factually incorrect.
The assertion in the Supplemental Complaint that Plaintiff’s state case was disposed of
on December 10, 2014, is inconsistent both with the Maryland Judiciary Case Search, which
reports the case status as “active,” Johnson v. Todd, Case No. 07-02-0009038-2014, and with his
own statement in his original Complaint that the state action was “never moved on,” ECF No. 1
at 2. Nonetheless, regardless of whether the state case is or is not closed, Plaintiff’s transfer
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On July 20, 2017, Plaintiff filed his original Complaint in this action, failing to mention the statute of limitations.
ECF No. 1. On August 24, 2017, the Court dismissed a different action brought by Plaintiff, Johnson v. Gayflor,
GJH-16-944. That procedurally similar case was dismissed in part due to the statute of limitations. GJH-16-944,
ECF No. 21 at 5–6. Presumably, Plaintiff filed the Amended Complaint in the instant case—raising the “transfer”
argument— after realizing that the instant action was subject to dismissal on the same statute of limitations grounds
as Gayflor.
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argument is not persuasive. On the one hand, if Plaintiff’s state court case was disposed of on
December 10, 2014, Plaintiff’s transfer argument fails because a case that is adjudicated in the
state court cannot then be “transferred”—or, to use the proper legal term, “removed”—to a
federal district court after the state case is already closed. The appropriate avenue for further
review would be an appeal with the state appellate court.
On the other hand, if Plaintiff’s state court case remains open, he cannot remove the case
to federal court because the time for doing so has long since expired. 28 U.S.C. § 1446(b) (“The
notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by
the defendant . . . of a copy of the initial pleading . . .”). Moreover, removal is a tool available to
state court defendants, not state court plaintiffs. Id. § 1446(a). This is because a plaintiff decides
at the outset of litigation whether he or she wants to file in state or federal court. In other words,
if Plaintiff wanted this Court to adjudicate his 2014 action, he had the ability to file the complaint
with this Court instead of the state court.
In sum, to the extent Plaintiff seeks to “transfer” or remove his state court action to this
Court, that request is denied.
B. Statute of Limitations
Treated as a new civil action as opposed to a removal of a state court action, Plaintiff’s
Complaint is barred by the statute of limitations. There is no federal statute of limitations for
actions under § 1983, and it is well-settled that the limitations period for § 1983 claims is to be
determined by the analogous state law statute of limitations. See Wallace v. Kato, 549 U.S. 384,
387 (2007); Burnett v. Grattan, 468 U.S. 42, 49 (1984). In Maryland, the applicable statute of
limitations is three years from the date of the occurrence. See Md. Code Ann., Cts. & Jud. Proc.,
§ 5-101. Under Maryland law, the statute of limitations is strictly construed. Hecht v. Resolution
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Tr. Corp., 635 A.2d 394, 399 (Md. 1994) (“Absent legislative creation of an exception to the
statute of limitations, we will not allow any ‘implied and equitable exception to be engrafted
upon it.’” (quoting Booth Glass Co. v. Huntingfield Corp., 500 A.2d 641 (Md. 1985))).
Although state law provides the controlling limitations period, “[t]he time of accrual of a
section 1983 action is governed by federal law, and the claim accrues when the affected party
knew or should have known of the injury that is the basis of the action.” Halle Dev., Inc. v. Anne
Arundel Cnty., 121 F. App’x. 504, 507 (4th Cir. 2005). Under federal law, a statute of limitations
may be tolled for equitable reasons, but only in “those rare instances where—due to
circumstances external to the party’s own conduct—it would be unconscionable to enforce the
limitation period against the party and gross injustice would result.” Rouse v. Lee, 339 F.3d 238,
246 (4th Cir. 2003) (en banc) (citing Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)).
Equitable tolling is unavailable to a plaintiff who has not been diligent in protecting his or her
rights; rather, the plaintiff must establish that he or she has been prevented from asserting those
rights. See Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 555 (1974).
In Plaintiff’s case, the occurrence triggering the statute of limitations happened no later
than August 28, 2012, the date the Plaintiff was found guilty of the disciplinary violations that he
alleges were wrongfully and vindictively issued. ECF No. 1 at 4; ECF No. 31 at 2. By that date,
Plaintiff “possesse[d] sufficient facts about the harm done to him that reasonable inquiry [could
have] revealed his cause of action.” See Nassim v. Md. House of Correction, 64 F.3d 951, 955
(4th Cir. 1995). Thus, under the statute of limitations, Plaintiff had until August 29, 2015 to file
his Complaint with this Court, a deadline he missed by nearly two years. See ECF No. 1.
Likewise, Plaintiff has failed to demonstrate that he is entitled to equitable tolling of the
limitations period. He has not identified a single factor that hindered him from filing this federal
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action immediately, and his allusions to his state civil case against Defendant Todd are irrelevant
to the accrual of the limitations period in this Court. See ECF No. 7 at 2. Indeed, as the Court
noted in Johnson v. Gayflor, GJH-16-944, a case which similarly involved an untimely federal
action filed after pursuing administrative and state court remedies, “Johnson’s efforts to file
complaints . . . in the state court further suggest that he was aware of his claims during this
time.” GJH-16-944, ECF No. 21 at 6. Accordingly, Defendants, who have invoked the statute of
limitations as an affirmative defense, ECF No. 29-1 at 5–6, are entitled to judgment in their
favor.8
IV.
CONCLUSION
Accordingly, Plaintiff’s Motion for Summary Judgment, ECF No. 34, is denied.
Defendants’ dispositive Motion, ECF No. 29, construed as a Motion for Summary Judgment, is
granted. A separate order follows.
Dated: August 29 , 2018
/s/
GEORGE J. HAZEL
United States District Judge
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To the extent that Plaintiff’s fleeting reference to his desire to present state claims of “false imprisonment,
negligence, and violation of the MD constitution,” is sufficient to state a claim, ECF No. 7 at 2, the Court has
dismissed the federal claim and declines to extend supplemental jurisdiction over the state law claims. See 28 U.S.C.
§ 1367(c)(3) (stating that district court “may decline to exercise supplemental jurisdiction over a claim . . . if . . . the
district court has dismissed all claims over which it has original jurisdiction.”); see also Shanaghan v. Cahill, 58
F.3d 106, 110 (4th Cir. 1995) (“[T]rial courts enjoy wide latitude in determining whether or not to retain jurisdiction
over state claims when federal claims have been extinguished.”) Thus, to the extent they are in fact presented,
Plaintiff’s state law claims are dismissed without prejudice.
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