Neale v. Hogan

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KIND ALL NEALE, Plaintiff, v. LAWRENCE J. HOGAN, Governor of Maryland, BOYD K. RUTHERFORD, LT. Governor, ROBERT L. GREENE, Secretary of Public Safety and Correctional Services, WAYNE HILL, Commissioner of Corrections, WALTER WEST, Warden of ECI, and WALTER HOLMES, Assistant Warden Defendants.

Civil Action No. JKB-20-1219

United States District Court, D. Maryland

July 5, 2023

MEMORANDUM OPINION

James K. Bredar Chief Judge

Plaintiff Kindall Neale filed this civil rights action along with multiple supplements to the Complaint asserting that his health has been jeopardized due to Defendants' handling of the COVID-19 pandemic at Eastern Correctional Institution ("ECI") located in Westover, Maryland. ECF Nos. 1 4, 5, 6, 7. In response, Defendants Hogan, Rutherford Greene, Hill, West, and Holmes filed a Motion to Dismiss or in the Alternative, for Summary Judgment, addressing both the COVID-19 protocols at ECI and asserting that Plaintiff failed to exhaust his administrative remedies prior to filing his Complaint. ECF No. 15. Plaintiff responded to the motion. ECF Nos. 21^[1] and 22. On August 19,2021, this court entered a Memorandum Opinion and Order finding that Plaintiff failed to exhaust his administrative remedies under the Prisoner Litigation Reform Act and, finding that Plaintiff therefore failed to state a claim under Federal Rule of Civil Procedure 12(b)(6), and dismissed the case without prejudice. ECF Nos. 25 and 26. On October 21, 2022, the Fourth Circuit Court of Appeals vacated the August 19, 2021 Order, determining that Plaintiff had sufficiently alleged that the exhaustion process was not available to him and remanding the case for further proceedings. ECF No. 33. The Court's mandate issued on November 14, 2022. ECF No. 34.

Thereafter Plaintiff filed a Motion to Appoint Counsel. ECF No. 36.^[2] Plaintiff states that he. is unable to afford counsel, he has made efforts to obtain counsel, and his incarceration will limit his ability to prosecute the case, and he would be better able to present evidence at trial with the assistance of an attorney. ECF No. 36. A federal district court judge's power to appoint counsel under 28 U.S.C. § 1915(e)(1) is discretionary and may be considered where an indigent claimant presents exceptional circumstances. See Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975); see also Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982). Plaintiff has not offered any exceptional circumstances warranting the appointment of counsel and the Motion will be denied.

Plaintiff also filed a Motion for Default Judgment (ECF No. 38), erroneously contending that Defendants failed to respond to his Complaint. .As noted, Defendants filed a dispositive motion (ECF No. 15), to which plaintiff responded. The Motion for Default will be denied.

The court finds that the matter has been fully briefed and a hearing in this matter is unnecessary. See Local Rule 105.6. (D. Md. 2021). For the reasons explained below, the Complaint is dismissed as to Defendants Rutherford, Greene and Hill. Defendants Hogan, West, and Holmes' motion, construed as a motion for summary judgment, will be granted.

Background

A. Plaintiffs allegations

Plaintiffs Complaint was received by the court for filing on May 13, 2020. ECF No. 1. Plaintiff states in his Complaint and its various supplements that Defendants failed to assure his safety relative to the COVID-19 pandemic. ECF Nos. 1, 4, 5, 6, and 7.

In his initial Complaint, Plaintiff stated:

Corona virus pandemic hits the United States in Jan 2020 the defendants don't take proper actions to protect me from harm due to I am incarcerated and they believe that I am safe. At no point have I been checked by the medical staff here at ECI. I am 38 year old man that is very much concerned for my health and safety. I don't have a death sentence. I am housed in a cell with another man with less than 6 feet between us.

ECF No. 1 at 2. In his first supplement he alleges, generally, that Defendants should have taken immediate action in January of 2020 to protect his safety, but that social segregation was not implemented until April 6, 2020. ECF No. 4 at 2-3. He also alleges that he was not provided adequate cleaning supplies with which to clean his cell. Id. at 3. He claims his safety was threatened by being housed in a cell with another prisoner. Id. at 3. Plaintiff states that there were numerous safety deficiencies including a lack of cleaning supplies, correctional officers not properly wearing' face masks, common areas not being properly disinfected, and a lack of social distancing in recreation areas. ECF No. 4 at 5-6; ECF No. 5 at 1-5, 7-19; ECF No. 6 at 3-11; ECF No. 7 at 1-11; ECF No. 19-1. Plaintiff reports that the threat of contracting COVID-19 has been stressful. ECF No. 1, 4, 5.

In his "Motion for Evidence" (ECF No. 20), Plaintiff alleges additional facts in support of his Complaint. Plaintiff states that "Defendants" moved an inmate who had tested positive for COVID-19 and who was in quarantine into a cell on his tier. Id. at 1. "Defendants" left other inmates in general population housing after they each tested positive for COVID-19. Id. at 2. He alleges that inmates were transferred from the Maryland Reception Diagnostic and Classification Center to ECI^:West Compound without having been tested from COVID-19. Id. In his "Motion to Amend" (ECF No. 23), plaintiff seeks to add additional facts in support of his allegations that Defendants failed to implement and comply with COVID-19 safety protocols. Specifically, Plaintiff alleges that inmates were transferred from other facilities without COVID-19 testing and that a guard was coughing while on his shift but told Plaintiff he was not allowed to go home. Id. at 3.

B. Defendants' Response

Defendants filed a substantive response detailing the safety measures that were put in place at ECI, including providing cleaning supplies to prisoners, social distancing in recreation areas, and providing COVID-19 testing to inmates with "flu like" symptoms. Decl. of Walter West, ECF No. 15-4 at 1-2, ¶ ¶ 5, 6, 8,9.

On March 5, 2020, the Governor of Maryland issued a state of emergency proclamation relative to the COVID-19 pandemic. ECF No. 15-3 at 1-2.^[3] The following week, on March 12, 2020, the Governor issued an order that limited large gatherings in public spaces. Id. at 3-5. On March 16, 2020, the March 12, 2020 Order was revised limiting large gathering in public spaces to 50 people. Id. at 6-9. Thereafter, on March 19 the Governor revised the Order and issued Executive Order 20-03-19-01, limiting gathering in certain circumstances to no more than ten people. Id. at 10-13. The orders were revised by Executive Order 20-06-10-0 Ton June 10, 2020, encouraging social distancing without specifying the number of persons who could gather. Id. at 18-28. On July 29, 2020, the Governor issued Executive Order 20-07-29-01 which amended and restated the prior order and included the reopening of certain businesses and required facial coverings in certain settings. Id. at 29-40. Executive Order No. 20-08-03-01, issued August 3, 2020, amended and restated the prior orders. Id. at 41-52. The Governor issued Executive Order Nos. 20-11-17-01 and 20-11-17-03, on November 17, 2020, renewing the March 5th Order declaring a state of emergency and catastrophic health emergency and ordering the implementation of "alternative correctional detention and supervision." Id. at 53-69.

On April 15, 2020, effective April 18, 2020, the Governor issued Executive Order No. 20-. 04-15-01 which required members of the public wear face coverings when riding public transportation and when in a retail or food service establishment. Id. at 14-17. The term "Face Covering" was defined as a covering that fully covered a person's nose and mouth but was not Medical-Grade and included scarves and bandanas. Id. at 15. On August 3,2020, Executive Order 20-0803-01 rescinded Executive Order No. 20-04-15-01. Id. at 41. The August 3, 2020 Order stated that the Coronavirus Recovery Team advised that the widespread use of Face Coverings was likely to help control the spread of COVID-19 and defined facial coverings to also include plastic full-face shields. Id. pp. 41-52.

Sharon Baucom, M.D., Director of Clinical Services for the Maryland Department of Public Safety and Correctional Services ("DPSCS") since June of 2011, avers that as of May 26, 2020 and August 6, 2020, neither medical or societal standards required universal testing for COVID-19. ECF No. 15-10, at 1, ¶ 3; at 3, ¶ 3.^[4] At that time, accepted medical practice prioritized COVID-19 testing based on a patient's illness and particular circumstance. Id. At the time complained of in Plaintiffs Complaint, DPSCS, through its health care contractors provided testing consistent with guidelines issued by the Centers for Disease Control and Prevention. Id. By August 6,2020, all Maryland Division of Correction personnel, medical staff, and inmates had the opportunity to be tested for COVID-19. ECF No. 15-10 at 3, ¶ 3. Dr. Baucom further explains that, within DPSCS, inmates suspected to have or who are confirmed to have COVID-19 are treated by DPSCS's private -medial contractors and are placed in quarantine or isolation as medically appropriate. Id. at 4, ¶ 4. In order to be released from COVID-19 quarantine or isolation a medical order is required. Id. No such order was issued unless the inmate had recovered from COVID-19 and was symptom-free. Id. The order releasing the inmate from quarantine/isolation allows the inmate to then be housed anywhere in the facility. Id. Dr. Baucom explains that there was no further medical intervention required as to an inmate's housing when they are medically released form COVID-19 quarantine or...