Skinner v. Moyer et al
Filing
82
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 3/19/2021. (c/m 3/19/2021 nus, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
TRACY L. SKINNER,
Plaintiff,
V.
BRUCE LILLER,Head ofPsychology
Department and SNU Treatment Team,
WILLIAM BOHRER,
ChiefofSecurity,
LIEUTENANT VAUGHN WHITEMAN,
MICHELLE SAWYERS,
Program Historian Designee,
RICHARD RODERICK,
Case Management Manager,
JASON MCMAHAN,Case Manager ofthe
Civil Action No. TDC-17-3262
Administrative Segregation Review Board,
M.SUSAN JOHNSON,
Administrative Segregation Review Board,
JORDAN TISCHNELL,
Administrative Segregation Review Board,
LIEUTENANT THOMAS SAWYERS and
JOHN G. SINDY,
Defendants.
MEMORANDUM OPINION
Plaintiff Tracy L. Skinner, an inmate at North Branch Correctional Institution in
Cumberland, Maryland ("NBCI"), has filed a civil rights action under 42 U.S.C. § 1983 alleging
constitutional violations arising from his placement in administrative segregation for
approximately two and a half years. Pending before the Court are two separate Motions to Dismiss
or, in the Alternative, Motions for Summary Judgment, one filed by Defendant Bruce Liller, ECF
No. 56, and the other filed by Defendants William Bohrer, Lt. Vaughn Whiteman, Michelle
Sawyers, Richard Roderick, Jason McMahan, M. Susan Johnson, Jordan Tischnell, Lt. Thomas
Sawyers, and John G. Sindy (collectively, the "Correctional Defendants"), EOF No. 76. Also
pending are Skinner's Motion for Appointment of Counsel, ECF No. 63; Skinner's Motion for
Leave to File an Amended Complaint, ECF No. 75; and the Correctional Defendants' Motion to
Seal Psychological Records, ECF No. 78.
Having considered the submitted materials, the Court finds that no hearing is necessary.
See D. Md. Local R. 105.6. For the reasons set forth below, the Motions to Dismiss or, in the
Alternative, Motions for Summary Judgment will be GRANTED IN PART and DENIED IN
PART,and the remaining Motions will be GRANTED.
BACKGROUND
Background facts and procedural history were set forth in detail in the Court's prior
memorandum opinion on Defendants' first Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment ("the First Motion"), which the Court incorporates by reference here. See
Skinner v. Moyer, No. TDC-17-3262, 2020 WL 1065740 (D. Md. Mar. 4, 2020)(''Skinner J").
Additional facts and procedural history relevant to the resolution of the pending Motions are set
forth below.
I.
Procedural History
Skinner's original Complaint named as Defendants Stephen T. Moyer, Secretary of the
Maryland Department of Public Safety and Correctional Services ("DPSCS"); Frank B. Bishop,
the Warden ofNBCI;and Bruce Liller, the head ofthe Psychology Department and Special Needs
Unit("SNU") at NBCI. Skinner alleged constitutional violations arising from his placement in
administrative segregation on multiple occasions from 2015 to 2017, his placement in the various
levels of the SNU Program, which provides services to inmates with mental health issues, and
other related issues. He also alleged that Defendants violated the Americans with Disabilities Act
("ADA"), 42 U.S.C. §§ 12131-12165 (2018), by denying him access to the SNU Program. On
March 4,2020,the Court granted in part and denied in part the First Motion. The Court dismissed,
r
or granted summary judgment,on all claims in the original Complaint,including the constitutional
claims relating to Skinner's placements in administrative segregation between July 2015 and
September 2017. While that motion was pending, however, on August 7, 2019, Skinner filed a
Supplemental Complaint, naming the Correctional Defendants as additional Defendants and
alleging that after he served 180 days in disciplinary segregation beginning in September 2017 as
punishment for attacking another inmate, he was then placed directly into administrative
segregation and, as a result, had remained in segregation continuously and indefinitely for two
years, fi-om September 2017 to August 2019, and was thus denied access to the SNU Program. In
the Supplemental Complaint, which the Court accepted. Skinner asserted that this continuing
detention violated his right to be fi-ee firom cruel and unusual punishment under the Eighth
Amendment to the United States Constitution, his right to due process under the Fourteenth
Amendment,and his First Amendment right to be free fi-om retaliation, based on his assertion that
the continuing administrative segregation was imposed in retaliation for his refusal to dismiss the
present lawsuit. He also alleged violations of the Maryland Declaration of Rights and the ADA.
Because the Court found that these supplemental claims could not be dismissed on their face, the
Court denied the First Motion as to these claims. Since neither Liller nor the Correctional
Defendants had had an opportunity to respond directly to the new claims,the Court permitted those
parties to file the pending Motions. On May 26, 2020, Skinner filed a Seeond Supplemental
Complaint, which the Court has accepted, adding Sindy as a Defendant and additional allegations
that Lt. Sawyers antagonized and provoked him at monthly SNU progress review meetings, that
Defendant Johnson denied his requests to receive Administrative Procedure Remedy complaint
("ARP") forms, that Defendant McMahan improperly calculated his security classification, and
that Defendants violated a specific prison policy. All Defendants have had an opportunity to
address the allegations in the Second Supplemental Complaint in their Motions.
IL
Factual Background
Skinner is serving a 30-year sentence imposed in 2003 for second-degree murder. State v.
Skinner^ No. 20-K-03-7732(Cir. Ct. Talbot Cty. Nov. 11, 2003). On June 1, 2013, while housed
at Patuxent Institution, he assaulted a correctional officer. Skinner was charged with seconddegree assault and was transferred to NBCI. On December 10, 2014, Skinner was found not
criminally responsible on the assault charge. State v. Skinner,No. 13-K-I4-54433(Cir. Ct. Howard
Cty. Dec. 10,2014). The Circuit Court for Howard County determined that Skinner did not require
confinement to a psychiatric hospital and instead would remain at NBCI or another prison operated
by the DPSCS to complete his criminal sentence and would be transferred to a psychiatric hospital
after the completion of that sentence. Skinner was required to receive mental health treatment
while in prison. State v. Skinner, No. 13-K-I4-54433 (Cir. Ct. Howard Cty. May 28, 2015).
Skinner, who has been diagnosed with schizoaffective disorder and post-traumatic stress disorder,
was admitted into the SNU Program at NBCI on October 15, 2014. The SNU Program provides
a continuum of care for inmates with serious mental illness who need more structure and mental
health services in the least restrictive environment consistent with institutional safety and security.
An SNU Treatment Team("SNU Team")monitors an inmate's progress in the SNU Program.
A.
Disciplinary and Administrative Segregation
From July 2015 to September 2017, when not placed in administrative segregation for
temporary periods oftime, Skinner was assigned to an SNU housing tier. On September 27,2017,
Skinner seriously injured another SNU inmate, Tyrese Keene-Taylor, during a fight. In October
2017, Skinner pleaded guilty to an infraction for the assault and was sanctioned with 180 days of
disciplinary segregation, which caused him to be placed in Housing Unit 1, which contains
segregation housing. On November 3,2017, Skinner filed the original Complaint in this case. On
January 9, 2018, while on disciplinary segregation. Skinner threw a food tray at an officer, was
issued an infraction, and received an additional 120 days of disciplinary segregation.
According to Skinner, on March 28,2018, at a meeting to discuss whether Skinner would
be returned to SNU housing after the completion of his disciplinary segregation. Skinner told a
case manager that he was not receiving adequate mental health treatment. He also stated that
regardless of whether he would be returned to SNU housing, he would not drop the pending
lawsuit. Skinner was then removed from the meeting.
On April 27, 2018, Skinner was designated to be placed on administrative segregation as
of May 8, 2018, the date that his disciplinary segregation was scheduled to end, in order to keep
him separated from his documented enemy, Keene-Taylor, who was residing in the general
population in Housing Unit 2. According to Benjamin Bradley, a Correctional Case Manager II
at NBCI, administrative segregation is an institutional assignment and housing designation that
separates an inmate from the general prison population to maintain the safety and security ofthe
facility, including to ensure that documented enemies are not housed simultaneously in the general
population.
Skinner, however, asserts that while on administrative segregation, he was subjected to
"extreme isolation" and "sensory deprivation," because he received only one hour of recreation,
five days a week, which consisted of solitary exercise in a cage at 11:00 p.m. without access to
sports equipment; received only three 15-minute showers per week; was patted down and
restrained whenever he was allowed to exit his cell; and remained in his cell 24 hours per day on
days without recreation or a shower. Supp. Compl. at 4-5, ECF No. 46. He had no access to a
dayroom or common room; to religious services; to social work, mental health, or peer group
programs; or to work opportunities. He received no contact visits and had severely limited phone
access at unreasonable times, such as at 12:30 a.m. He was ineligible for good conduct or special
project credits. According to Skinner, administrative segregation also had an adverse impact on
his security classification because during an annual review of his security classification on June 6,
2018, Defendant McMahan reported that Skinner was in administrative segregation, was thus not
in any prison programs, and therefore received no points for participation in such programs that
could be applied to reduce his security classification.
The Correctional Defendants offer no evidence on the specific conditions faced by Skinner.
In describing the general policy on administrative segregation,Bradley acknowledged that inmates
in that status are only allowed recreation five days a week, in a cage; have no access to religious
services; must take all meals in their cells; and are handcuffed whenever they leave their cells. He
noted, however,that such inmates may maintain the same personal property as general population
inmates, such as televisions, gaming consoles, and CD players; that inmates on administrative
segregation may make phone calls every other day; and that showers are permitted daily.
As a result of his prolonged administrative segregation. Skinner states that he suffered
adverse mental health consequences, including significant anxiety, "hyper response to external
stimuli," increased perceptual distortions, insomnia,and self-destructive outbursts. Suppl. Compl.
at 5. Specifically, while in administrative segregation, he broke his left hand on November 8,2019
when he punched a wall, and on November 11, 2019, Skinner repeatedly hit himself in the face,
causing wounds to his cheek and eye area, and stated that he wanted to die. On January 19,2020,
he broke his right hand in another self-destructive episode. Later, in July 2020, Skinner again hit
himself hard enough to give himself a black eye.
As of the filing of the Supplemental Complaint in March 2020, Skinner had been on
administrative segregation since May 8, 2018, or for 22 months. On October 21, 2020, he was
finally removed from administrative segregation and transferred to Housing Unit 2, after KeeneTaylor was transferred to another facility on October 16,2020. At that point, Skinner had endured
approximately 29 months, or two years and five months, of administrative segregation. Presently,
Skinner lives in Housing Unit 2 and is included in the SNU Program.
B.
Periodic Reviews
During his 29-month period of administrative segregation. Skinner was the subject oftwo
different forms of monitoring. First, there were monthly meetings at which an Administrative
Segregation Review Board reviewed his status, including by interviewing Skinner. Among the
members of the Administrative Segregation Review Board were Defendants Liller, Whiteman,
Roderick, Michelle Sawyers, McMahan, Johnson, and Sindy, all of whom attended the June 19,
2018 meeting. According to Skinner, at these sessions, the Administrative Segregation Review
Board informed him that based on the guidance ofSkinner's SNU Team,he was not to be released
from administrative segregation because he was on Keene-Taylor's enemy list. Some of the
meetings were held without Skinner for unknown reasons. In other cases. Skinner refused to
participate because after he had been consistently told that no changes to his status were being
made, he considered the meetings to be "sham" hearings. Opp'n Liller Mot. Dismiss at 8, ECF
No. 64. Beginning in April 2020, because of the COVID-19 pandemic, all in-person inmate
reviews, including Administrative Segregation Review Board meetings, were stopped unless
determined "absolutely necessary," so the monthly reviews were conducted electronically.
Johnson Decl.% 7, Corr. Defs.' Mot. Summ. J. Ex. 5, ECF No. 76-8.
Second, there were monthly SNU Team meetings to monitor Skinner's mental health
status. Skinner has stated that he was no longer a part of the SNU Program while he was on
administrative segregation and was not receiving adequate mental health treatment. According to
Bradley, however, an inmate's SNU Team may elect to allow an inmate to remain in the SNU
Program while assigned to administrative segregation and thus to continue to be reviewed by the
SNU Team monthly. According to Sindy, who at the relevant time was a Correctional Case
Management Specialist II at NBCI, Skinner remained assigned to the SNU Program while on
disciplinary and administrative segregation. At various times after September 2017, Skinner's
SNU Team included Liller, Lt. Sawyers, Sindy, and Michelle Sawyers.
According to Bradley, the SNU Team is neither responsible for nor has authority to
determine whether an inmate is placed on, or removed ftom, administrative or disciplinary
segregation. Nevertheless, Skinner's SNU Team continued to meet monthly to discuss Skinner.
From May 8,2018 forward,the SNU Team progress review meetings were conducted in Skinner's
absence. Notes from the meetings reflect no discussion of substance other than the fact that
Skinner would remain in administrative segregation because of his "enemy situation." DPSCS
Confidential Notes (Skinner) at 9, Corr. Defs. Mot. Summ. J. Ex. 6, ECF No. 76-9. On June 26,
2019, the SNU Team noted that Skinner had "[ajssaulted himself today." Id. at 5. After April
2020, during the COVID-19 pandemic, the SNU Team progress review meetings were held
electronically.
DISCUSSION
I.
Preliminary Motions
At the outset, the Court will grant Skinner's Motion for Leave to File an Amended
Complaint,ECF No.75,because he seeks only to dismiss the claims against Defendant Whiteman.
As requested, the Court will dismiss the claims against Whiteman. The Court will also grant the
Correctional Defendants' Motion to Seal Skinner's psychological records, ECF No. 78.
II.
Motions to Dismiss or, in the Alternative, Motion for Summary Judgment
Construed liberally, the operative Complaint against the Correctional Defendants asserts
all ofthe claims set forth in the original Complaint,ECF No. 1; the Supplemental Complaint, ECF
No. 46; and the Second Supplemental Complaint, ECF No. 49. The Court has already granted a
dispositive Motion as to all claims against Liller in the original Complaint except for those relating
to Skinner's prolonged administrative segregation from September 2017 forward. See Skinner 7,
2020 WL 1065740, at *11, *14. Where none of Skinner's pleadings assert facts connecting the
Correctional Defendants to the dismissed elaims or provide a basis to revisit the Court's prior
analysis, the Court finds that for the same reasons stated in the its memorandum opinion on the
First Motion, all claims asserted in the original Complaint, except for those relating to Skinner's
administrative segregation from September 2017 forward, are dismissed as to the Correctional
Defendants. These claims include constitutional claims relating to Skinner's placement in
disciplinary or administrative segregation before September 2017; constitutional and statutory
claims relating his placement within the SNU Program and his mental health treatment prior to
that date, including claims under the ADA; and claims relating to access to phone calls with his
attorney and the ARP process. The remaining claims thus consist of(1)the claims that Skinner's
prolonged administrative segregation after September 2017 violated the Eighth, Fourteenth, and
First Amendments;(2)the claim that during that time period, he was denied adequate mental health
care, in violation of the Eighth Amendment;(3) the claims in the Supplemental Complaints that
McMahan caused Skinner's security classification to be higher than necessary, that Lt. Sawyers
antagonized Skinner at SNU progress review meetings, that Johnson denied his request for ARP
forms, and that unspecified Defendants violated a prison policy. Division of Correction Directive
50-2 ("DCD-50-2"); and (4) the claims under Article 25 of the Maryland Declaration of Rights,
presumably state constitutional claims parallel to his federal constitutional claims.
A.
Legal Standards
Defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6) or summary
judgment under Rule 56. To defeat a motion to dismiss under Rule 12(b)(6), the complaint must
allege enough facts to state a plausible claim for relief. Ashcroft v. Jqbal^ 556 U.S.662,678(2009).
A claim is plausible when the facts pleaded allow "the Court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Id. Although courts should construe pleadings
ofselfirepresented litigants liberally,Erickson v. Pardus,551 U.S. 89,94(2007),legal conclusions
or conclusory statements do not suffice, Iqbal, 556 U.S. at 678. The Court must examine the
complaint as a whole, consider the factual allegations in the complaint as true, and construe the
factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266,
268(1994); Lambeth v. Bd. ofComm 'rs ofDavidson Cty., 407 F.3d 266,268(4th Cir. 2005).
Typically, when deciding a motion to dismiss under Rule 12(b)(6), the Court considers
only the complaint and any attached documents "integral to the complaint." Sec'y ofState for
Defence v. Trimble Navigation Ltd.,484 F.3d 700, 705 (4th Cir. 2007). Rule 12(d)requires courts
to treat such a motion as a motion for summary judgment where matters outside the pleadings are
considered and not excluded. Fed. R. Civ. P. 12(d). Before converting a motion to dismiss to one
10
for summaryjudgment,courts must give the nonmoving party "a reasonable opportunity to present
all the material that is pertinent to the motion." Id. "Reasonable opportunity" has two
requirements: (1)the nonmoving party must have some notice that the court is treating the Rule
12(b)(6) motion as a motion for summary judgment; and (2) the nonmoving party "must be
afforded a reasonable opportunity for discovery" to obtain information essential to oppose the
motion. Gay v. Wall, 761 F.2d 175,177(4th Cir. 1985)(citation omitted).
Here, the notice requirement has been satisfied by the title of Defendants' Motions. To
show that a reasonable opportunity for discovery has not been afforded, the nonmoving party must
file an affidavit or declaration under Rule 56(d), or an equivalent filing, explaining why "for
specified reasons, it cannot present facts essential to justify its opposition." Fed. R. Civ. P. 56(d);
see Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214,245 (4th Cir. 2002). Skinner has
not filed an affidavit seeking discovery and has submitted certain exhibits with his memoranda in
opposition to the Motions. Under these circumstances, on those arguments for which the Court
must consider submitted exhibits, the Court will construe the Motions as Motions for Summary
Judgment.
Under Federal Rule of Civil Procedure 56, the Court grants summary judgment if the
moving party demonstrates that 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, All 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., All U.S. 242, 255 (1986). The Court may rely only on facts
supported in the record, not simply assertions in the pleadings. Bouchat v. Bait. Ravens Football
Club, Inc., 346 F.3d 514,522(4th Cir. 2003). A fact is "material" if it "might affect the outcome
11
of the suit under the governing law." Anderson^ All U.S. at 248. A dispute of material fact is
"genuine" only 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.
Prolonged Administrative Segregation
In ruling on the First Motion, the Court considered Skinner's claims under the Eighth,
Fourteenth, and First Amendments relating to his prolonged administrative segregation from
September 2017 forward. Skinner had alleged that, as of the time of the Court's ruling, he had
served a period of approximately eight months of disciplinary segregation that was then followed
by almost two years of administrative segregation without any definable end point, and he
described conditions that were comparable to those deemed to violate the Eighth Amendment in
Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019), in which inmates, on a long-term basis, were
confined in their cells for 23 or 24 hours a day, with a night light on all night; were allowed only
one hour of outdoor recreation, five days a week, in a cage; were limited to three ten-minute
showers per week; and were not permitted leave their cells for meals or to participate in religious
or prison programming. Id. at 353-54. The Court thus denied the First Motion as to the Eighth
Amendment conditions of confinement claim. Skinner /, 2020 WL 1065740, at *11. The Court
also denied the First Motion as to the due process claim because when the alleged conditions of
confinement were combined with the prolonged duration, they arguably imposed an "atypical and
significant hardship" that could implicate a liberty interest and Skinner's due process rights. Id.
at *10-11 (citing Sandin v. Conner, 515 U.S. 472, 486(1995), and Wilkinson v. Austin, 545 U.S.
209, 214, 223-24 (2005)). Finally, where Skinner had alleged that his prolonged administrative
segregation followed his filing of the present lawsuit and his assertion that he would not dismiss
12
this case even if he were returned to the general population, the Court denied the First Motion as
to the claim of retaliation under the First Amendment. Skinner 7, 2020 WL 1065740, at *12.
Because neither Liller nor the Correctional Defendants had formally responded to these
allegations, the Court's rulings on these claims were entered without prejudice, with the
expectation that Defendants would file motions seeking dismissal or summary judgment and
provide arguments or evidence to refute Skinner's allegations or to establish that their actions were
entirely lawful. Although Defendants have filed now filed their Motions, they have not shown
that the claims relating to prolonged administrative segregation must fail.
1.
Eighth Amendment
The Eighth Amendment protects inmates from inhumane treatment and conditions. Iko v.
Shreve, 535 F.3d 225, 238 (4th Cir. 2008). To establish an Eighth Amendment claim based on
conditions of confinement, a prisoner must show that: (1) objectively, "the deprivation suffered
or injury inflicted on the inmate was sufficiently serious"; and(2)subjectively,"the prison official
acted with a sufficiently culpable state ofmind." Id. at 238(citation omitted). The objective prong
requires that the prisoner sustains a "serious or significant physical or emotional injury resulting
from the challenged conditions, or a substantial risk of serious harm resulting from .. . exposure
to the challenged conditions." Scinto v. Stansberry^ 841 F.3d 219, 225 (4th Cir. 2016)(quoting
De'Lonta v. Angelom,330 F.3d 630,634(4th Cir. 2003)). When assessing whether conditions of
solitary or segregated confinement violate the Eighth Amendment,courts must consider "what the
Supreme Court has termed the evolving standards ofdecency that mark the progress of a maturing
society." Sweet v. S.C. Dep't of Corr.^ 529 F.2d 854, 860 (4th Cir. 1975)(en banc) (citation
omitted). Recently, the United States Court of Appeals for the Fourth Circuit has stated that
"prolonged solitary confinement exacts a heavy psychological toll that often continues to plague
13
an inmate's mind even after he is resocialized." Porter, 923 F.3d at 357 (quoting Incumaa v.
Stirling, 791 F.3d 517, 534 (4th Cir. 2015)).
Courts must consider "the totality of the
circumstances," including "the time covered by the punishment or deprivation." Mitchell v. Rice,
952 F.2d 187, 191 (4th Cir. 1992); see also Rivera v. Mathena, 795 F. App'x 169, 174 (4th Cir.
2019) (considering "the duration of harm" as an important factor in the Eighth Amendment
analysis).
Rather than refuting Skinner's allegations, Defendants have largely confirmed his version
of the facts relating to his administrative segregation. They acknowledge that following his
disciplinary segregation, Skinner was placed into administrative segregation indefinitely, from
May 2018 forward, and that even after the Court's ruling on the First Motion in March 2020,they
left him in administrative segregation for another seven months, until he was finally released in
October 2020. They also largely confirm, or fail to refute, Skinner's account of his conditions of
confinement: they do not contest that he was isolated in his own cell for 23 hours per day, with
no meals outside his cell and only one hour of recreation five days a week in a cage, at night,
without sports equipment; that he was handcuffed whenever he was allowed to leave his cell; and
that he had no access to communal activities, religious services, any prison programs, or contact
visits. They identify certain factual disputes about his conditions of confinement, including that
they state that the general policy for administrative segregation allows for daily showers, while
Skinner alleges that he received only three showers per week; and that the policy allows for phone
calls every other day, while Skinner asserts that he was only permitted to make calls in the middle
of the night. Particularly when the facts must be viewed in the light most favorable to the
nonmoving party, the conditions of confinement, based on the present record, continue to appear
comparable to those in Porter. Although certain conditions in Porter, such as the presence of a
14
night light and the size of the cell may have been more draconian than those faced by Skinner,
others, such as the restrictions on recreation and phone calls to late night hours may have been
more restrictive. See Porter, 923 F.3d at 354, 357. While Defendants note that Skinner retained
certain benefits, such as the ability to have a television in his cell and regular mental health
consultations, those conditions were also present in Porter, in which inmates received weekly
visits from a mental health practitioner. See id. at 354.
Moreover, the record now establishes that Skinner was subjected to these conditions for a
total of over three years, the last 29 months of which were not based on any formal discipline for
misconduct, and he has alleged not only that he had serious mental health issues before his
administrative segregation and suffered mental health deterioration as a result, but he has also
asserted in the verified Second Supplemental Complaint, and medical records confirm, that he
suffered physical injuries in that he engaged in self-destructive behavior on three occasions from
November 2019 to July 2020, including breaking both his left hand and right hand, in acts likely
traceable to the trauma of the administrative segregation. See In re Long Term Administrative
Segregation ofInmates Designated as Five Percenters, 174 F.3d 464, 471-72 (4th Cir. 1999)
(finding that indefinite segregation of over three years did not violate the Eighth Amendment in
part because the only harm alleged by the plaintiffs was depression and anxiety, not "serious or
significant physical or emotional injury"). Defendants have therefore not provided a basis to alter
the Court's initial conclusion that Skinner, at least based on the present record, continues to have
viable claim that his conditions of confinement could violate the Eighth Amendment. See Skinner
I 2020 WL 1065740, at *9-10.
15
2.
Fourteenth Amendment
For similar reasons, based on the present record, the Court will not conclude that Skinner's
conditions of confinement do not meet the standard of"atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life" that is necessary to establish a liberty
interest in avoiding such conditions under the Fourteenth Amendment's Due Process Clause See
Sandin v. Conner, 515 U.S. 472, 484 (1995). As the Court noted in resolving the First Motion,
assignment to administrative segregation does not alone create an atypical and significant hardship,
see Hewitt v. Helms,459 U.S. 460,468 (1983), and a limited period of segregation, such as a 30-
day period, wouldnotimplicatedueprocessrights,
515 U.S. at 476,486. In Wilkinson
V. Austin, 545 U.S. 209(2005), however, the United States Supreme Court found that conditions
in a super-maximum security prison, where inmates were confined to their cells for 23 hours per
day, exercise was limited to one hour a day in a small indoor room,a light remained on in cells at
all times, and contact with others was extremely limited, implicated a liberty interest based on the
duration of the confinement to the prison, which was reviewed only once per year, and the fact
that placement there disqualified an inmate for parole consideration. Id. at 214, 223-24. Based on
Wilkinson, the Fourth Circuit has identified three factors to be considered in determining whether
a liberty interest exists: (1) the magnitude of the confinement restrictions; (2) whether the
administrative segregation was for an indefinite period; and (3) whether the assignment had any
collateral consequences on the inmate's sentence. Incumaav. Stirling, 791 F.3d 517,530(4th Cir.
2015). Here, as described above, Skinner's conditions of administrative segregation were in the
range ofthose at issue in Wilkinson and Incumaa. See id. at 521 (describing conditions of24-hour
confinement except for recreation ten times per month and showers three times a week, eating all
meals in the inmate's cell, denial of educational and vocational opportunities, regular strip
16
searches, and denial of mental health treatment). Though Skinner's duration of administrative
segregation ended after two and a half years, it appeared to have been indefinite in nature, with no
formal end date, as it was apparently predicated on the vagaries of the residential status of
Skinner's documented enemy, Keene-Taylor.
As Skinner has noted, his placement in
administrative segregation disqualified him from receiving good conduct credits, so there were, as
in Wilkinson, collateral consequences for his overall length of incarceration. Wilkinson, 545 U.S.
at 215,224; see also Incumaa, 791 F.3d at 530.
Moreover, where there may have been a due process right associated with Skinner's
prolonged administrative segregation, the present record is insufficient to show whether he
received due process, which requires "a meaningful opportunity to understand and contest the
reasons for holding him in solitary confinement." Incumaa,791 F.3d at 532. Although Skinner's
status appears to have been reviewed at Administrative Segregation Review Board monthly
meetings as well as at an annual evaluation, case notes of those meetings show that Skinner was
not always present, sometimes because he was not included and sometimes because he refused to
participate, and in most instances they describe no discussions or deliberations other than that
Skinner would be retumed to segregation because he had a documented enemy. It is therefore
unclear whether these sessions were meaningful reviews that could have resulted in any change of
conditions. Although Defendants have provided contemporaneous case notes reflecting that both
the Administrative Segregation Review Board and the SNU Team continued to identify the
presence of an enemy as the reason for the prolonged administrative segregation, they have not
provided a basis to conclude that this explanation alone satisfies due process. Defendants have
provided documentation of the prison policy relating to separation from enemies, but it does not
state that an offending inmate must be placed in administrative segregation in order to establish
17
separation, and it certainly does not state that such segregation may last up to two and a half years.
There is little to no evidence, including the SNU Team's monthly review reports, to show that
prison officials seriously pursued other alternatives, such as transferring Skinner or the enemy to
another facility. On this record, the Court will deny the Motions on the Fourteenth Amendment
claims relating to prolonged administrative segregation.
3.
First Amendment
As for the First Amendment retaliation claim,"[t]he First Amendment right to free speech
includes not only the affirmative right to speak, but also the right to be free from retaliation by a
public official for the exercise of that right." Suarez Corp. Indus, v. McGraw, 202 F.3d 676, 685
(4th Cir. 2000). An inmate's "right to file a prison grievance free from retaliation" is protected by
the First Amendment. Booker v. S. Carolina Dep't ofCorrs., 855 F.3d 533, 545 (4th Cir. 2017).
In order to establish a retaliation claim for exercising First Amendment rights, a plaintiff must
show that(1) the plaintiff engaged in protected First Amendment activity;(2)the defendant took
some action that adversely affected the First Amendment rights; and (3) there was a causal
relationship between the protected activity and the defendants' conduct. Martin v. Du^,858 F.3d
239,249(4th Cir. 2017)(alterations omitted); Constantine v. Rectors & Visitors ofGeorge Mason
Univ., 411 F.3d 474,499(4th Cir. 2005). Skinner has alleged First Amendment protected activity
in his assertion that he would continue to pursue his lawsuit, and the subsequent 29 months of
administrative segregation is fairly construed as adversely affecting his rights. Although the
evidence presented by Defendants is consistent with the explanation that the prolonged
administrative segregation was motivated by the presence of an enemy, particularly where
administrative segregation of this length is not explicitly authorized by the prison policy on
enemies and extended for 29 months without any apparent, serious effort to identify an alternative
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solution, the Court finds that on the present record there remains a genuine issue of material fact
on the issue ofretaliation and will deny the Motions as to this claim.
Although Defendants invoke the doctrine ofqualified immunity, without any case-specific
analysis, the Court finds that, under Porter, Wilkinson, Incumaa, and Booker, the constitutional
rights at issue were clearly established at the outset of, or during the continuation of, the alleged
violations,
i'Mpra parts II.B.1-3.
Finally, while Defendants argue that there are insufficient allegations as to particular
Defendants,the record evidence,including some ofDefendants' own declarations, establishes that
Defendants Liller, Roderick, McMahan, Johnson, Michelle Sawyers, and Sindy were, at various
points, members ofthe Administrative Segregation Review Board, and that Defendants Liller, Lt.
Sawyers, Michelle Sawyers,and Sindy were members ofthe SNU Team. Skinner has alleged that
Defendant Tischnell was a member of the Administrative Segregation Review Board. As both
groups apparently had a role in maintaining Skinner's placement in administrative segregation,the
claims against these Defendants will remain. As there is no claim that Defendant Bohrer was a
member of either team, and there are no other allegations in the Complaint relating to him, the
claims against Bohrer will be dismissed without prejudice.
C.
Inadequate Mental Health Care
Construed liberally, Skinner has also asserted a claim of deliberate indifference to his
serious mental health needs based on inadequate mental health care during his period of
administrative segregation. A prison official violates the Eighth Amendment when the official
shows "deliberate indifference to serious medical needs ofprisoners." Estelle v. Gamble,429 U.S.
97, 104 (1976); Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). To be "serious," the
condition must be "one that has been diagnosed by a physician as mandating treatment or one that
19
is so obvious that even a lay person would easily recognize the necessity for a doctor's attention."
Jackson, 775 F.3d at 178 (quoting Iko, 535 F.3d at 241); see also Scinto 841 F.3d at 228. "An
official is deliberately indifferent to an inmate's serious medical needs only when he or she
subjectively knows of and disregards an excessive risk to inmate health or safety." Jackson, 775
F.3d at 178 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). "[I]t is not enough that an
official should have known ofa risk; he or she must have had actual subjective knowledge of both
the inmate's serious medical condition and the excessive risk posed by the official's action or
inaction." Id.(citations omitted). There is"no underlying distinction between the right to medical
care for physical ills and its psychological and psychiatric counterpart." Bowring v. Godwin,551
F.2d 44,47(4th Cir, 1977);see also DePaola v. Clarke,884 F.3d 481,486(4th Cir. 2018)("Courts
treat an inmate's mental health claims just as seriously as any physical health claims.").
There is no dispute that Skinner had serious mental health needs, as reflected by his
inclusion in the SNU Program. Defendants assert that Skinner received adequate mental health
care because even while on administrative segregation, he remained a part of the SNU Program,
the SNU Team continued to meet monthly to discuss his progress, and he received regular visits
from mental health care providers throughout the 29-month period. Although these facts support
Defendants' position,the Court finds that summary judgment on this issue is not warranted at this
time. First, although the submitted records appear to show that, contrary to his assertion. Skinner
remained nominally a part of the SNU Team, Skinner asserts, and Defendants do not seriously
dispute, that he was unable actually to participate in the SNU Program. Indeed, McMahan
documented that Skinner participated in no prison programs while he was in administrative
segregation. Skinner has submitted documentation that he was not able to participate in any
therapeutic programming while on administrative segregation, including Conditional Release
20
Reporting Forms submitted by his therapist. Second, during administrative segregation, the SNU
Team meetings generally occurred outside the presence of Skinner, and the case notes relating to
Skinner's SNU Team meetings reflect virtually no discussion other than that he would remain in
administrative segregation because ofhis documented enemy. Third, the record includes evidence
consistent with the conclusion that mental health providers were aware that Skinner's mental
health needs were not being successfully addressed. Specifically,the mental health records reflect
that during the administrative segregation, Skinner engaged in self-destructive behavior on at least
four occasions between November 2019 and July 2020, including breaking two of his hands,
without any notable change in treatment. In particular, written progress notes reflect that mental
health providers expressed the view on several occasions in 2019 that Skinner "should not be" on
long-term administrative segregation, in part because such segregation is "contraindicated" for an
inmate with such mental health issues, and that he "does not have access to the programming he
should have," including "therapeutic programming." Opp'n Liller Mot. Summ. J. Ex. 5 at 29-30,
ECF No. 64-1. A Conditional Release Reporting Form from February 2019 states that Skinner
"does not have access to the programming he should have" and that an inmate such as him "should
not be in long term segregation." Opp'n Corr. Defs. Mot. Summ. J. Ex. 3 at 6, ECF No. 81-3.
Finally, the psychiatric and therapy records submitted appear to be incomplete, in that no records
were submitted for a nearly one-year period,from September 2018 to July 2019.
In light of these issues, and where the treatment records have been interpreted only by
Defendants, without any review by a mental health professional acting on behalf of Skinner, the
Court finds that there remain genuine issues of material fact, and discovery is necessary to ensure
that all relevant evidence is available, before this claim can be resolved.
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Although the Correctional Defendants are not mental health providers, a significant part of
the claim ofinadequate mental health care appears to be based on the decision to place Skinner on
administrative segregation for two and a half years, despite the fact that Skinner had serious,
ongoing mental health needs and would not be able to participate meaningfully in the SNU
Program. According to Defendants, that specific decision was made by the Administrative
Segregation Review Team, not the SNU Team. Where the Correctional Defendants participated
in the decisions to extend Skiimer's administrative segregation and the record is incomplete on the
degree to which they were aware of the mental health impact of such administrative segregation,
the Court will not dismiss the claims against them at this time.
D.
Remaining Claims
To the extent that Skinner's allegations against McMahan,Lt. Sawyers, and Johnson in his
two Supplemental Complaints were intended to assert causes of action other those discussed
above, they do not state plausible claims for relief. In the Supplemental Complaint, Skinner
alleges that McMahan, who completed a formula-based inmate security level review of Skinner
on June 6,2018,improperly graded him as "unsatisfactory," and thus granted him zero points, on
the category of "Job and Program Participation," because Skinner had no institutional job
assignment and was not participating in any programs or in the activities of the SNU Program
while he was on administrative segregation. Supp. Compl. at 2; Supp. Compl. Ex. 1,ECF No.461. Even ifthis allegation is true, and ifthe points assigned arguably could affect Skinner's housing
placement, an inmate generally does not have a constitutional right to a specific security or other
classification relevant to housing placement. See, e.g., Meachum v. Fano, 427 U.S. 215, 224
(1976); Hewitt v. Helms,459 U.S.460,468(1983); Moody v. Daggett,429 U.S. 78,88 n.9(1976).
Accordingly,there is no freestanding constitutional claim arising fi-om the calculation of Skinner's
22
security classification. These allegations, however, remain relevant to Skinner's broader claim
that his prolonged administrative segregation was unconstitutional.
As to Lt. Sawyers, Skinner alleges that Sawyers antagonized and provoked him at monthly
SNU progress review meetings, which caused him to act out at most of his monthly SNU reviews.
Lt. Sawyers has provided a declaration denying Skiimer's allegation. Even if Skinner's allegation
is true, "not all undesirable behavior by state actors is unconstitutional." Pink v. Lester^ 52 F.3d
73,75(4th Cir. 1995). Mere verbal abuse and taunting ofinmates by guards,including aggravating
language, does not state a constitutional claim. See McBride v. Deer, 240 F.3d 1287, 1291 n.3
(10th Cir. 2001); Blades v. Schuetzle, 302 F.3d 801, 805 (8th Cir. 2002); McFadden v. Lucas, 713
F.2d 143,146(5th Cir. 1983). Thus, although Skinner's allegation about Lt. Sawyers, if true, may
be relevant to his broader claims about improper prolonged administrative segregation, they do
not support a freestanding cause of action.
As for Johnson, Skirmer alleges that when he asked her for various ARP forms, she
responded, on March 30,2020, by stating,"Unfortunately, the supply of ARP's is low right now."
2d Supp. Compl. Ex. 1, ECF No. 49-1. Notably, Skinner had been able to file three ARPs in
February 2020 relating to his hand injury and his need for medication. Pursuant to the Court's
analysis in resolving the First Motion, these facts do not support a constitutional claim because
there is no allegation that Johnson's actions cost Skinner the ability to succeed on a specific legal
claim, and because Skinner does not have a liberty interest in the ARP process established by
NBCI. See Skinner /, 2020 WL 1065740, at *14; Booker, 855 F.3d at 541 ("[Ijnmates have no
constitutional entitlement or due process interest in access to a grievance procedure"). For the
same reason, Skinner's general claim that the Correctional Defendants violated DCD-50-2 also
23
fails to state a valid constitutional claim. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.
1996); Kitchen v. lakes, 116 F. Supp. 3d,613,629 n.6(D. Md. 2015)(citing Myers).
£.
Maryland Constitution
Article 25 of the Maryland Declaration of Rights provides that "excessive bail ought not
be required,nor excessive fines imposed, nor cruel and unusual punishment inflicted, by the Courts
of Law." Md. Const. Decl. of Rights art. 25. Article 25 is "substantially identical to the Eighth
Amendment" and is thus construed in pari materia with the Eighth Amendment. Aravanis v.
Somerset Cty., 664 A.2d 888, 893-94(Md. 1995); see Evans v. State, 914 A.2d 25,67(Md. 2006)
(stating that Article 25 has been "consistently construed" as "m pari materia'^ with its federal
counterpart). Where, as discussed above, the Court will deny the Motions as to the Eighth
Amendment claims, and Defendants have offered no separate argument relating to the Article 25
claim, the Court will deny the Motions as to the state constitutional claims as well.
CONCLUSION
For the foregoing reasons, the Correctional Defendants' Motion to Seal and Skinner's
Motion for Leave to File an Amended Complaint will be GRANTED,and Defendant Whiteman
will be dismissed from this case. The Motions to Dismiss or, in the Alternative, Motion for
Summary Judgment, will be GRANTED IN PART and DENIED IN PART. The Motions will be
granted as to (1) all claims against Defendant Bohrer, which will be dismissed without prejudice;
and (2) all claims against the other Defendants, with the exception of the following claims on
which the Motions will be denied: the Eighth, Fourteenth, and First Amendment claims relating
to prolonged administrative segregation after September 2017; the Eighth Amendment claims
relating to allegedly inadequate mental health treatment after September 2017; and the parallel
state constitutional claims under Article 25 of the Maryland Declaration of Rights. Because
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discovery is necessary to complete the factual record in this case, and Skinner cannot reasonably
conduct such discovery on his own,the Motion for Appointment of Counsel will be GRANTED.
A separate Order shall issue.
Date: March 19, 2021
THEODORE D. CHU
United States District
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