Ervin v. Frank Bishop

ROGER ERVIN Plaintiff v. FRANK BISHOP Defendant

Civil Action No. ELH-16-3978

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

February 2, 2018

MEMORANDUM OPINION

This civil rights complaint was filed by self-represented plaintiff Roger Ervin against Warden Frank Bishop on December 13, 2016, pursuant to 42 U.S.C. §1983. ECF 1. Multiple exhibits are attached to the suit. See ECF 1-1.

The complaint concerns Ervin's claim that legal mail entrusted to a correctional officer to be mailed to this court was not mailed for improper reasons. In later submissions, Ervin raises claims concerning his medical care. See ECF 32; ECF 34.

The complaint was filed after Ervin filed Civil Action ELH-16-3946, which concerns claims identical to those raised in Ervin's initial complaint and in Ervin's subsequent motions for injunctive relief. See Ervin v. Wexford, et al., Civil Action ELH-16-3964 (D. Md) at ECF 5.

In response to the complaint, Warden Bishop filed a motion to dismiss asserting, in part, a defense of claim-splitting. ECF 17 (motion); ECF 18 (memorandum of law) (collectively, "Motion"). Ervin was advised of his right to respond to the Motion and the time to do so. ECF 19. In addition, he was advised of the potential consequences of a failure to respond. Id. Ervin did not properly oppose the Motion. Rather, he filed a motion for default judgment (ECF 20), which was denied (ECF 25), and sought extensions of time as well as emergency injunctive relief. ECF 23; ECF 26; ECF 29; ECF 30; ECF 32; ECF 34; ECF 35.

Defendant was directed to respond to Ervin's motion for injunctive relief (ECF 33), and the response was received (ECF 36), with exhibits. Ervin has replied. ECF 37.

Currently pending are defendant's Motion (ECF 17) and Ervin's motions for emergency orders. ECF 32; ECF 34. For the reasons that follow, defendant's Motion shall be granted and Ervin's motions shall be denied.

I. Complaint Allegations¹

Plaintiff, at all times relevant, has been incarcerated at North Branch Correctional Institution ("NBCI"). He states that in May of 2016, he gave Correctional Officer Kuhn his legal mail, contained in a large yellow envelope with a green money voucher attached. ECF 1 at 3. The money voucher was filled out so that postage could be paid. Id. Kuhn brought Ervin's mail back to him, stating that Officer A. Conner said she was not going to send it out; Kuhn did not know why Conner took that position. Id. at 4.

Ervin states that when his housing tier was called out for the lunch meal he explained to Sgt. Thomas, who was in charge of the housing unit, that Conner would not send his legal mail out. ECF 1 at 4. He claims Thomas instructed him to give the legal mail back to Kuhn and to tell Kuhn to put it on Thomas's desk. Id. Ervin claims that he followed those instructions, but that Kuhn came back to him at around 2:10 p.m., stating: "I told you she (Conner) said she was not going to mail this mail out." Id. Kuhn returned the mail to Ervin. Id.

Ervin alleges that he filed a complaint under the administrative remedy procedure ("ARP"), complaining that Conner did not have the authority to decide whether the mail should go out because she was not the tier officer, nor was she the building sergeant. ECF 1 at 4. The Assistant Warden answered Ervin's ARP, stating that Conner did not do what Ervin claimed and denying his request for $150 in damages because he failed to prove he incurred such a loss. Id.

Thereafter, Ervin filed a request under Maryland's Public Information Act to find out who was interviewed when Lt. Sawyer investigated his ARP. Id. Ervin discovered that Sawyer claimed he spoke with Ervin and that he could not prove it cost him $150 for the failure to send out his legal mail. However, Ervin claims that Sawyer neither spoke to his witnesses, nor did he interview Ervin. Ervin adds that Sgt. G. Forney "came around and said he don't know why she did that" and wondered why Sgt. Thomas did not send the legal mail out himself. Id. Forney then asked if Ervin still had the mail and when he confirmed that he did, Forney offered to get the court costs reimbursed to Ervin. Id. Ervin claims he told Forney that the Commissioner had already said Ervin had not proved "she owe me court cost." Id. It is unclear when this alleged conversation with Forney took place or in what context. Id.

After Ervin learned that Forney and Sawyer lied "in their MPI-A report," he filed another ARP. Id. This ARP apparently concerned the lack of library privileges for Ervin's housing unit from June 1, 2016 through June 27, 2016. Id. On June 28, 2016, the day after Ervin filed his ARP, Ervin's housing area was allowed to attend the library and he was asked to withdraw his ARP. Ervin refused to do so. Id.

Ervin claims that because he refused to sign off on the ARP, Sawyer enlisted Officer Keel to write up Ervin, claiming he "was doing inappropriate things [during] the month ofRamadan." Id. Ervin denies the allegation in Keel's report.² Further, he claims that although he was locked up for the reported misconduct, the male correctional officer told him that Officer Keel should have just turned her head if Ervin was masturbating in his cell. ECF 1 at 5. In addition, Ervin explains away his guilty plea to the charges, claiming the hearing officer told him that because Ervin is "too old" to be in lock-up and has medical issues, he should take the time served in segregation and move on. Id. Ervin claims the hearing officer also indicated that the Warden would remove the charge from Ervin's record at a later time. Id.

On August 18, 2016, Ervin was sent to Mercy Hospital "to set up for surgery." ECF 1 at 5. When he returned to NBCI he was placed on lock-up for refusing housing. Ervin claims that the same hearing officer who handled the charge against him from Keel also handled this charge and declined to find him guilty because "you have papers that say you are to be kept in a single cell until surgery." Id. Ervin claims that Sawyer and Forney said they did not care about papers that Ervin had concerning his cell assignment and were assigning him to a double cell. Id. According to Ervin, Forney and Sawyer violated his "shower order" and the order for his assignment to a single cell. Id.

Ervin then turns to matters for which he filed ARPs, and the complaints were found meritorious in part. ECF 1 at p. 5. He claims he filed an ARP about the absence of library privileges or religious services; "the property"³ being destroyed; not being fed for seven days by the dietary officers; and being denied religious services in 2014. Id. at 5 - 6. Ervin indicates that he was told that although his grievances were meritorious in part, he would need to "go to court"to get relief and that is why he filed the instant complaint. Id. at 6. He states he wants a "judgment against . . . Conner along with Sgt. G. Forney and Lt. T. Sawyer along with CO S. Keel & for them to pay all court cost along with $150.000 dollars because the Judge closed the case once I didn't respond . . . ." Id.

Ervin adds that he has provided the court with a list of names of 25 inmates whose "First Amendment rights were violated as well as mine." ECF 1 at 6. He states that he wants an attorney, $5000 in damages for each of the 25 persons listed, and a jury trial. Id. Ervin claims that NBCI is "requiring that we give our legal mail to CO A. Conner" and asks that an enclosed exhibit be reviewed in that regard. Id.

Ervin concludes the complaint with his allegation that his prior case, Civil Action ELH-15-2263, was dismissed because he did not respond by August 1, 2016. ECF 1 at 6. He expounds upon the claim that was raised in that case and claims he did not receive this court's decision until August 23, 2016. Id.⁴

After defendant moved to dismiss (ECF 17; ECF 18), Ervin filed emergency motions for a temporary restraining order (ECF 32; ECF 34; ECF 35), asserting that on June 21, 2017, he had received cataract removal surgery and a tube placed in his eye to control pressure from glaucoma. ECF 32 at 1. He claimed he was given a bottle of eye drops after his surgery and was told he should be held at Jessup Correctional Institution ("JCI") until the following day so that he could be seen by an optometrist, Dr. Goodman. Id. Someone, presumably Dr. Goodman, cleared Ervin to be released back to WCI on June 22, 2017. Id.

When Ervin arrived at WCI he asked Dr. Robustiano Barrerra where the instructions were for taking the eye drops he was given. ECF 32 at 1 - 2. Although Dr. Barrerra allegedlytold Ervin that he would obtain instructions for the eye drops before he left the ward, Ervin claims he did not receive them in the six days he was there and he was sent back to NBCI without them. Id. at 2.

Further, Ervin claims that "all [his] medication was stopped because the defendants said [he] was complaining about the treatment [he] was receiving." Id. He states Dr. Goodman saw him on August 23, 2017, and he informed Ervin that his left eye was "rejecting the tube" and was infected. Id. Goodman told Ervin he would order antibiotics and call Dr. Summerfield, the physician who performed the surgery. Id. Ervin claims he was told he would need a second surgery, but that "we have a few weeks." Id. He also alleges that the doctor told him that aftercare is more important than the surgery in most cases. However, according to Ervin, there was no aftercare in his case. Id.

The relief Ervin seeks in the Motion is an order requiring his transfer to JCI, so that he can be held there until the surgery and this court "investigate[s] this matter," and return of all medications prescribed. ECF 32 at 3. According to Ervin, if this court does not do anything he "will lose [his] sight and might die." Id. He claims he will not consent to a second surgery to correct the issue with his left eye until this court orders his transfer to JCI. Id.

In a subsequent motion Ervin claims he was seen by Dr. Ashraf on August 30, 2017, who told him that...