Bradshaw v. Smith

FREDDIE L. BRADSHAW, #195044 Plaintiff

v. WARDEN NANCY L. ROUSE LT. BRIAN SMITHCASE MANAGER SUPERVISOR O. BRAKESECRETARY OF D.P.S.C.S. GARY * MAYNARDCOMMISSIONER OF CORRECTIONS J. MICHAEL STOUFFERWARDEN JOHN ROWLEY PH.D. JAMES K. HOLWAGERASST. WARDEN RICHARD GRAHAM CASE MANAGER SUPERVISOR LILLERCASE MANAGER SPECIALIST DUNST Defendants

CIVIL ACTION NO. CCB-08-341

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Dated: March 16, 2011

MEMORANDUM

Pending are defendants' supplemental motion to dismiss or for summary judgment and plaintiff's self-represented opposition.¹ ECF Nos. 46 & 48. The case is ripe for dispositive review.²Upon review of papers and exhibits filed, the court finds an oral hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2010).

Background

Plaintiff is a Division of Correction ("DOC") inmate who alleges that on July 3, 2007, he was removed from general population at the Maryland Correctional Institution at Hagerstown ("MCIH") and placed on administrative segregation by former MCIH Warden Nancy Rouse. He claims he was served with a notice, but was not given an opportunity to be heard. ECF No. 1. Plaintiff asserts that after filing a number of complaints with Rouse, Lt. Brian Smith, and Case Manager Supervisor Brake regarding why he was placed on administrative segregation, on August 2, 2007, he was transferred to the Special Management Unit ("SMU") of the North Branch Correctional Institution ("NBCI") without prior notice and without a chance to contest the allegations used to place him on the SMU.

Plaintiff complains that his transfer was "punitive." He claims that as of the filing date of his complaint, he had not been given a written factual basis for his placement on the SMU, but had only been provided vague explanations for the assignment related to behavior, security, and confidentiality. Id. Added to these initial due process claims is plaintiffs assertion that the conditions of SMU are "atypical" as his assignment is tantamount to indefinite placement on solitary confinement and includes the confiscation of property and the revocation of privileges, with the exception of one-hour of "fresh air" per week while in full restraints, and twice weekly showers, which can be revoked for talking to other inmates.³ Plaintiff also complains that he is subject to a Behavioral Management Program ("BMP") while on SMU which allows for inmates to achieve one of six "levels, " subject to the "whims and mercy" of SMU officers and the levels committee. Heclaims that he has been on the BMP intake level since his arrival at NBCI, even though he has received no infractions. ECF No. 1. Plaintiff also complains that Division of Correction directives ("DCD") permit his placement in such conditions for being "directly involved or associated with violent behavior." He complains that these directives are overly broad and have no criteria, process, or description as to who will fall into the category.⁴

Plaintiff further raises Fourteenth and Eighth Amendment equal protection and deliberate indifference claims, stating that he is being treated differently than other inmates classified to administrative segregation and that the conditions of his SMU cell assignment subject him to cruel and unusual punishment.⁵ In addition, he claims his forced participation in the BMP violates his First Amendment rights as the program seeks to "change the way [he] thinks and believes through psychological approaches and solitary conditions." ECF No. 1 at 9. He states that if he does not want to accept the psychological treatment, he will remain in solitary confinement without regard to his adjustment history. Plaintiff claims that DOC directives grant him the right to refuse the BMP. He seeks declaratory and injunctive relief, along with punitive and compensatory damages.

In response to the complaint defendants assert that plaintiff is a verified member of the Black Gorilla Family (BGF) prison gang, is currently serving a 32-year sentence for first-degree murder, and has a 38-page adjustment history which includes acts of violence along with drug and weapons possession. ECF No. 18, Ex. 1 at 4; ECF No. 46, Ex. 1 at 1, 4-6, 15-17. On June 14, 2007, MCIH had a riot in both courtyards and plaintiff's letters were recovered by officers during a mass search to identify which inmates were involved in these assaults.⁶ ECF No. 18, Ex. 1 at 4. It was during this search that MCIH intelligence officers collected several letters or "kites, " one of which noted that plaintiff ordered a "hit" on another inmate. In another letter, plaintiff allegedly identified himself as a high-ranking member of the BGF.⁷ Id.; ECF No. 44, Ex. 1; ECF No. 45. Plaintiff was assigned to MCIH administrative segregation pending case management team action, as he was deemed a danger to the security of MCIH, inmates, and/or staff. ECF No. 18, Ex. 1 at 7-10. MCIH Sergeant Caudo was assigned to investigate allegations of plaintiffs BGF gang affiliation. Id., Ex. 1 at 10. It was determined that plaintiff was to remain on administrative segregation for 120 days to allow for a more complete investigation. Id. On July 3, 2007, plaintiff received notice that he had been assigned to administrative segregation because "reasons existed to believe that he posed a danger to the institution and/or inmates and/or staff." Id. at 9-10.

On July 5, 2007, MCIH case management removed plaintiff from administrative segregation, classified him to unassigned administrative segregation, and placed him on the list for transfer to NBCI. ECF No. 18, Ex. 1 at 7. Warden Rouse approved the recommendation and signed her approval on July 6, 2007. On July 30, 2007, plaintiff underwent a case management review during which he had the opportunity to challenge the appropriateness of his administrative segregation assignment. ECF No. 18, Ex. 1 at 11. On or about August 2, 2007, plaintiff was identified as acandidate for placement in NBCI's SMU and transferred to NBCI. Id., Ex. 1 at 11-12. Upon arrival at NBCI plaintiff received an administrative segregation review and was initially assigned to NBCI administrative segregation for further review of placement on levels in the SMU, Quality of Life program, renamed the BMP. Id., Ex. 1 at 13-15; ECF No. 46, memorandum at 2 n.1. Defendants state that plaintiff was identified as an influential gang member by the BMP committee and placed in the entry level or "gang level" of the BMP at NBCI on August 7, 2007. ECF No. 18, Ex. 1 at 13-16. The warden designee concurred with the recommendation of the committee on August 10, 2007. Id.⁸

On August 28, 2007, approximately four weeks after his transfer to NBCI and three weeks after his SMU placement, plaintiff underwent his first BMP review. ECF No. 18, Ex. 2 at 14. The BMP committee agreed to keep him at the intake (ground) level due to his refusal to participate in the program.⁹ Id. He remained at the intake level until April 8, 2008, because he refused to attend or participate in the BMP meetings. Id. at 7-16. In April of 2008, the BMP was made voluntary with persons opting not to participate in the program being removed from the intake level of the program and placed on administrative segregation.¹⁰ Id. at 15. On April 9, 2008, plaintiff signed aninformed consent form, opting out of the BMP and was reclassified to administrative segregation.¹¹Id., Ex. 1 at 20.

Defendants acknowledge that the program, initially implemented in January 2007, underwent many changes after several gang-related incidents of violence in DOC facilities and it was "difficult to discuss the behaviors that resulted in... placement in the program as many of the individuals were influential in security threat activity." ECF No. 18, Ex. 2 at 5. In addition, defendants concede that the process for placement in the program was not clear, resulting in a number of individuals being placed at NBCI with little or no documentation to support the allegation they were a threat to the security of the institution. Id. Prior to being transferred to the SMU, a form for each inmate was supposed to be filled out by the sending institution and approved by the regional assistant commissioner and the assistant commissioner for programming. Id. This approval process was not done for approximately 90 inmates who were transferred to the SMU at NBCI as "emergency" transfers. Id. Once housed at NBCI, the emergency transfers received a case-by-case review by NBCI staff after the inmates' arrival. Id. A review of all of the inmates was not completed until October of 2007. This resulted in 42 participants being discharged from the program because there was little, if any, documentation supporting their continued placement in the program. Id.

Inmates like plaintiff, who opted not to participate in the BMP, were forced to remain at the initial intake level indefinitely and could not advance unless they decided to participate in the BMP. ECF No. 18, Ex. 2 at 3. Defendants admit that participation in the program was mandatory until April 2008, when the mandatory status was rescinded by the Assistant Commissioner of Correction.

Id at 6. At that time if inmates in the SMU did not participate in the BMP, they were assigned to administrative segregation. Id. The inmates were told they would remain in administrative segregation status until something could convince the Assistant Commissioner that they were no longer a threat to the security of the institution. Id. They were further informed that the only manner upon which they could be removed would be to complete the BMP so as to establish they were not a threat. Id. While on administrative segregation, inmates were reviewed by case management personnel at least once every 30 days and case managers were to consider available alternatives to continued administrative segregation. ECF No. 18, Ex. 1 at 22-29; Ex. 5 at 2-3.

While housed at NBCI, plaintiff received an infraction for fighting and was placed on...