Pevia v. Moyer

1

DONALD PEVIA, Plaintiff, v. STEPHEN MOYER, et al., Defendants.

Civil Action No. ELH-20-3270

United States District Court, D. Maryland

May 31, 2023

MEMORANDUM

Ellen L. Hollander United States District Judge

Plaintiff Donald R. Pevia is a prisoner at the North Branch Correctional Institution (“NBCI”) in Cumberland Maryland. On November 10, 2020, he filed suit under 42 U.S.C § 1983 against Stephen Moyer, then Secretary of Department of Public Safety and Correctional Services (“DPSCS”); Commissioner of DPSCS Wayne Hill Warden Frank Bishop; Assistant Warden Jeffrey Nines; and Lt Vaughn Whitemen, alleging denial of his constitutional rights. ECF 1. Plaintiff included several exhibits with the Complaint. ECF 1-1.

Defendants Moyer, Bishop, Nines, and Whitemen filed a motion to dismiss or, in the alternative, for summary judgment. ECF 10. It was supported by a memorandum. ECF 10-1. Defendants asserted that the Complaint was subject to dismissal because Pevia failed to exhaust his administrative remedies; they were each entitled to public official immunity under State law; and Pevia failed to plead personal participation. Id. Pevia opposed the motion. ECF 13, ECF 14, ECF 15. On December 13, 2021, the court entered a Memorandum Opinion (ECF 18) and Order (ECF 19) denying the motion. The court also stayed the proceedings as to these defendants, pending service on defendant Hill. Id.

Service was accepted for Hill. ECF 20. Thereafter, Hill filed a motion to dismiss or, in the alternative, for summary judgment (ECF 28), supported by a memorandum. ECF 28-1. He asserted that Pevia failed to state a clam or exhaust his administrative remedies. Id. Further, Hill claimed he is entitled to immunity as to claims asserted against him in his official capacity and qualified immunity in all other respects. Id. By Memorandum Opinion (ECF 33) and Order (ECF 34) of October 3, 2022, the motion was granted solely as to any claims asserted against Hill in his official capacity and denied in all other respects.

Defendants Bishop, Hill, Moyer, Nines, and Whitemen have again moved to dismiss or, in the alternative, for summary judgment (ECF 39), supported by a memorandum (ECF 39-1) (collectively, the “Motion”). They have also submitted as an exhibit the Declaration of F. Todd Taylor, Jr., Executive Director of the Inmate Grievance Office (“IGO”). Pevia opposes the Motion. ECF 41, ECF 42, ECF 43.^[1] He has also filed a motion to appoint counsel. ECF 35.

No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2021). For the reasons that follow, Pevia's motion to appoint counsel is denied, without prejudice. And, defendants' Motion, construed as a motion to dismiss, is granted as to any claims asserted against them in their official capacity and denied in all other respects.

I. Non-Dispositive Motions

Pevia has moved to appoint counsel. A pro se prisoner does not have a general right to counsel in a § 1983 action. Evans v. Kuplinski, 713 Fed.Appx. 167, 170 (4th Cir. 2017). The power of a federal district court judge to appoint counsel under 28 U.S.C. § 1915(e)(1) is discretionary, and an indigent claimant must present “exceptional circumstances.” Kuplinski, 713 Fed. App'x at 170; Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Exceptional circumstances exist where a “pro se litigant has a colorable claim but lacks the capacity to present it.” See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989) (holding that 28 U.S.C. § 1915 does not authorize compulsory appointment of counsel).

Upon consideration of the filings by plaintiff, the court finds that he has demonstrated the wherewithal either to articulate the legal and factual basis of his claims himself or secure meaningful assistance in doing so. Moreover, the issues pending before the court are not unduly complicated. Therefore, there are no exceptional circumstances at this time that, under 28 U.S.C. § 1915(e)(1), warrant the appointment of an attorney to represent plaintiff.

Accordingly, I shall deny the motion for appointment of counsel (ECF 35), without prejudice.

II. Factual Background

The court previously summarized the factual background of this case, as follows, ECF 18 at 2-4:

Plaintiff alleges that defendants violated his rights under the Eighth Amendment to the Constitution by intentionally double celling him in a cell that was designed to only hold one person and by keeping him confined to the cell 22 hours per day. ECF 1-1 at 5. He seeks monetary damages and declaratory relief. ECF 1-1 at 28.

A. Administrative Remedy Procedure (“ARP”) NBCI-2432-19

Pevia states that he was transferred from Roxbury Correctional Institution to NBCI on or about October 14, 2011. ECF 1-1 at 24. According to Pevia, while housed at NBCI he has been forced to live in unconstitutional conditions. Id. He contends that the cells were designed to hold one inmate but, due to over-crowding, two inmates are placed in a cell. Id. Further, he alleges that this double celling creates a hostile environment which endangers everyone's safety. Id.

Plaintiff filed ARP NBCI-2432-19 on December 4, 2019, complaining that his rights under the Eighth Amendment were violated because he was double celled in a cell designed to hold only one inmate. ECF 1-1 at 5. Pevia explains that NBCI was designed to house one inmate in each cell and that unidentified staff altered documents to justify the double celling of inmates. Id. Pevia states that NBCI used a cell schematic that showed the cells were 80 feet in area but, in actuality, they are only 60 feet. Id. at 6. Further, Pevia claims that he is required to be provided 25 feet of unencumbered space, which is not provided. Id. He also alleges that if he is locked in his cell more than 10 hours per day, standards governing correctional facilities require that he be provided 80 feet of space. Id. He states he has back problems from having to always sit or lay down and not being able to exercise. Id. Pevia's appeals of the ARP dismissal, including to the Inmate Grievance Office, were denied.

B. ARP NBCI-0697-20

Pevia explains that since being housed at NBCI he has been placed in hostile environments due to the double celling conditions. ECF 1-1 at 25. Even though, in Pevia's opinion, he is to be housed in a single cell or provided more out of cell activity, Lt. Whitemen, the housing unit manager (ECF 1 at 2), has created a policy that disallows courtesy moves. ECF 1-1 at 25. Further Pevia has been advised that his only remedy is to refuse his housing assignment and be placed on lock up. Id. He alleges that when administrators decided to house two inmates instead of one in the cells at NBCI, no modifications were made to the cells, forcing cellmates to fight over who gets to plug in their appliances. Id.

On March 28, 2020, Pevia filed another ARP alleging that his rights under the Eighth Amendment were violated because he was held, with another inmate, for 22 hours a day in a cell designed for one person. ECF 1-1, at 15. He alleged that because the cells were designed to hold only one inmate, there are insufficient outlets to plug in appliances, leading to hostility among the cellmates and forcing Pevia either to refuse housing or fight his cellmate. Id. Pevia's appeals of the denial of his ARP were denied, including at the IGO.

In the Memorandum Opinion resolving Hill's Motion to Dismiss, I noted, ECF 33 at 10:

Pevia also alleges in his opposition that NBCI was previously ordered to discontinue double celling. ECF 30 at 2; see ECF 13-1 at 10 (Affidavit of Policarpio Ispinoza regarding removal of top bunks from cells in order to convert cells from double to single cells).

III. Standard of Review

Defendants style their Motion as a motion to dismiss or, in the alternative, for summary judgment. For the reasons that follow, the court construes the Motion as one to dismiss. Except as to the official capacity claims, I shall deny the Motion.

A defendant may test the legal sufficiency of a plaintiff's complaint by way of a motion to dismiss under Rule 12(b)(6). Fessler v. Int'l Bus. Machs. Corp., 959 F.3d 146, 152 (4th Cir. 2020); In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” See Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); Ibarra v. United States, 120 F.3d 472, 473 (4th Cir. 1997).

Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). See Migdal v. Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325-26 (4th Cir. 2001); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). That rule provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

To survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v Iqbal, 556 U.S. 662, 684 (2009) (...