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 Case 1:16-cv-00945-RDB Document 2 Filed 04/04/16 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ANTHONY BLUE JOHNNY JAMES STEVEN BROWN ROBERT WILSON MAYNARD SNEAD RUSSELL HOPKINS TYRELL POLLEY GREGORY HAMMOND SEDRIC HOLLEY WILBERT M. DELANO
Plaintiffs
v
WARDEN
Defendant

* Civil Action Nos. RDB-16-945 (Blue) RDB-16-946 (James)
* RDB-16-947 (Brown) RDB-16-948 (Wilson)
* RDB-16-949 (Snead) RDB-16-950 (Hopkins)
* RDB-16-951 (Polley) RDB-16-952 (Hammond)
* RDB-16-953 (Holley) RDB-16-954 (Delano)
*
*
*
*
*** ORDER

The above entitled civil actions were opened upon receipt of ten identical pleadings

drafted by an unknown prisoner seeking appointment of counsel for each of the noted Plaintiffs

who are visually impaired and incarcerated at Roxbury Correctional Institution (“RCI”). Each of

the Plaintiffs generally claim that there are no acceptable services in place at RCI to assist them

in pursuing administrative remedies or gaining access to the courts for purposes of challenging

the validity of their convictions or filing civil rights claims regarding their conditions of

confinement. Each also asserts that they are forced to rely on the assistance of other inmates

who are not trained in law and who are often harassed by correctional officers for providing that

assistance. They further aver that reliance upon other inmates to read their incoming mail to

them subjects them to potential harm if the mail contains information that would make them a

target for prison violence or contains the address of their family members. ECF 1. Because the

Case 1:16-cv-00945-RDB Document 2 Filed 04/04/16 Page 2 of 3
claims presented in each case are identical, the cases shall be consolidated for all further purposes.
The bare bones allegations presented potentially raise both a constitutional claim and a claim under the Americans with Disabilities Act; however, the information provided is simply insufficient to discern which of the Plaintiffs have a viable claim, nor can it be discerned who the proper Defendants are for such claims. This Court is empowered with the discretion to appoint counsel in instances where exceptional circumstances are presented by an indigent claimant. See 28 U.S.C. ' 1915(e)(1), see also Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975); Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982). Exceptional circumstances exist in the instant case by virtue of the asserted visual impairment of the plaintiffs, making the ordinary course of directing the plaintiffs to correct the deficiencies in the pleadings filed a futility without the assistance of learned counsel.
Prisoner’s Rights Information System of Maryland (“PRISM”) and its chief counsel, Stephen Meehan, are currently contracted with the State of Maryland to provide persons confined to Maryland’s prisons with representation or advice in civil rights matters and Inmate Grievance Office cases. As such, Mr. Meehan and his colleagues are uniquely qualified to be appointed as counsel in these cases for the limited purpose of investigating potential claims and preparing and filing Amended Complaints as well as accompanying Motions to Proceed in Forma Pauperis, where appropriate, on behalf of each Plaintiff. The Court recognizes the potential burden such a task may place on counsel and, thus, will permit ample time for the process. Counsel is reminded that should the need arise for additional time beyond that which is herein granted, he may simply request an extension of time.
2

Case 1:16-cv-00945-RDB Document 2 Filed 04/04/16 Page 3 of 3
Accordingly, it is this 4th day of April, 2016, by the United States District Court for the District of Maryland, hereby ORDERED that:
1. The Clerk SHALL CONSOLIDATE Civil Actions RDB-16-946; RDB-16-947; RDB16-948; RDB-16-949; RDB-16-950; RDB-16-951; RDB-16-952; RDB-16-953; and RDB-16-954 with Civil Action RDB-16-945;
2. The Clerk SHALL DOCKET the pleadings filed in Civil Actions RDB-16-946; RDB16-947; RDB-16-948; RDB-16-949; RDB-16-950; RDB-16-951; RDB-16-952; RDB16-953; and RDB-16-954 in Civil Action RDB-16-945, which shall be the lead case;
3. Plaintiffs’ Motions for Appointment of Counsel ARE GRANTED for the limited purpose of filing an AMENDEDCOMPLAINT on their behalf together with a Motion to Proceed in Forma Pauperis where appropriate;
4. Stephen Meehan of PRISM IS APPOINTED to represent the Plaintiff in each of the cases filed for the LIMITED PUPROSE as stated herein;
5. Counsel IS GRANTED 60 days from the date of this Order to file the required pleadings; and
6. The Clerk SHALL PROVIDE a copy of this Order to EACH Plaintiff and SHALL PROVIDE a copy of this Order along with a list of the ten Plaintiffs names, identification numbers, and addresses to appointed counsel.
_________/s/______________________ RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE
3

 
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 (J. t'. C. #- 1I,~." It
'5.:.0 C:Itas0e 19:S168-~cv~-0tt0l945-RDB Document 3-2 Filed 04/04/16 Page 1 of 5

&bw 7(.•. N A ['jE:

4.3_•':•..L.•.$••e_bt"-"'-

_

ROXBURY CORRECTIONAL INSTITUTION 18701 ROXBURY ROAD HAGERSTOWN, MARYLAND 21746

'1'0: CLERK OF THE COURT UNITED STATES DISTRICT COURT

DATE:

1- '1.S-lle

-~- FILED __ • 00iifD

___

l~EO __

flECt:1YW

MAR 30 2016

MOTION FOR APPOINTMENT OF COUNSEL
oa'i
The defendant above is visually impaired (blind) and is serving a sentence at the Roxbury Correctional Institution in the state of ~1aryland. Due to the defendant I s impairment, he is requesting the following from the Federal District Court Judge:

1. Appointment of Counsel under 28 U.S.C. 1915, 1975(E)(2), and where indigent claimant presents exceptional circumstances (See ~ v. Bounds, 518 F.2d 779 at 779 (4th Cir. 1975);also Branch v. Cole, 686 F.2d 264 at 266 (5th Cir. 1982; and Whisenant v. Yuam, 739 F.2d 160 at 163 (4th Cir. 1984)

A. The defendant is in need of counsel for assistance in filing a Federal Civil Rights challenge (42 U.S.C. S1983) due to the fact that Roxbury Correctional Institution does not provide the tools necessary to protect their rights to obtain relief the vision impaired (blind) inmates desperately need.

B. I am an inmate writing this motion for the defendant above because the institution does not provide the vision-impaired (blind) inmates Hi th the material to do it themselves. I have no legal

(1)

Case 1:16-cv-00945-RDB Document 3-2 Filed 04/04/16 Page 2 of 5

experience and the CorreGtional Officers may cause me physical harm

if they find out I'm helping the vision impaired (blind) inmates. I

don' t kno~v what to do. There has been many "Administrative Remedies l!

filed and ignored. Over eight (8) years they have known vision-

impaired inmates (blind) have concerns, yet this Institution ~

stressed their complaints and
n£! added to or made changes so

that the vision-impaired (blind) inmates can have the equipment they

need to have access to the courts. I do know vision-impaired inmates

(blind) have a right to file certain petitions with the courts: Criminal Appeals (including Post Conviction petitions and Habeas

Corpus petitions and appeals) and challenges to conditions of

confinement.

C. INMATES ARE FILING PETITIONS FOR THE VISION-IMPAIRED (blind) inmates, and we are not lawyers and I have only a ninth (9th) grade education and this Institution does not provide any assistance or material for the vision-impaired (blind) inmates to have access to the courts. Many of the vision-impaired (blind) inmates have had their grievances (post convictions, habeas corpus and appeals) written and filed by other inmates who are not qualified to do so out of necessity. Other vision-impaired (blind) inmates have had many grievances (post conviction appeals and habeas corpus petitions) dismissed due to other inmates filing on their behalf (by the other inmate's mistakes). This can be misleading to the visionimpaired (blind) inmate and misleading to the courts as \vell as violation of the vision-impaired inmate's First Amendment Right (Lewis v. Casey, 518 U.S. 343 at 355, 116 S.Ct. 2174 (1996); Hudson
(2)

Case 1:16-cv-00945-RDB Document 3-2 Filed 04/04/16 Page 3 of 5
v. Palmer, 468 u.s. 517 at 523, 104 S.Ct. 3194 (1984).
The vision-impaired (blind) inmate should not have to rely upon other inmates to supervise or direct them ~'lhen they need legal assistance in filing any legal filing. This may hinder cases in the local courts as well as Federal courts from receiving fair hearings in the courts of laiV'.This is also a direct violation of this Institution's rules and regulations (DeD 200-1 V.(A)(4).
Below, the Court will find a list of complaints that may warrant appointment of counsel:
1. Failure to provide material and/or assistance for the vision-impaired (blind) inmates to file an "Informal Inmate Complaint Form t1, Appendix 2 to DCD 185-002; and resubmissions, Appendix 3 to DeD 185-002.
2. Failure to provide material and/or assistance for the vision-impaired (blind) inmates to file motions in the State courts, State courts of appeal, Federal courts and Federal courts of appeal.
3. Failure to provide material and/or assistance for the vision-impaired (blind) inmates to access legal services - DeDs 1951, 200-2, 135-2, and DCD 200-1 V(G).
4. Failure to provide material and/or assistance for the vision-impaired (blind) inmates to have equal access with all
(3)

Case 1:16-cv-00945-RDB Document 3-2 Filed 04/04/16 Page 4 of 5
inmates to join o.. roo-'rams , services and activities without regard to
race, religion, national origin, sex, disability or political beliefs under DeD 200-1 V(B) Nondiscrimination.
5. Failure to provide material for the vision-impaired inmates concerning (disabledJ inmate rights per DCD 200-1 VI(B)(C) 1-2.
6. Failure to provide safety and security wi thin this Insti tution by double-ceIling vision-impaired (blind) inmates knowing that they cannot protect themselves against violent inmates (Harris v. Angelina County, 31 F.3d 331 at 334-336 (5th Cir. 1994».
7. Failure to provide safety and securi ty wi thin this Institution by not providing material for the vision-impaired (blind) inmates to send or receive mail in a legal manner by having other inmates read and write personal and legal mail for the visionimpaired (blind) inmates which is not consistent with Division of Correction responsibility to not put vision-impaired (blind) inmate's family members in danger, as well as the vision-impaired (blind) inmates themselves. This is dangerous because family addresses are exposed and legal mail may be misleading or expose their crime.
8. Failure to provide a Division of Correction Inmate Handbook on audio, detailing inmate rights for the disabled (vision-impaired (blind» inmates while they are being housed in this Institution per DCD 200-1 VI (B)(C) 1-2.
(4)

Case 1:16-cv-00945-RDB Document 3-2 Filed 04/04/16 Page 5 of 5

Vision-impaired

(blind) inmates in the Roxbury Correctional

Institution have never had the material or assistance to file

Administrative Remedies, Grievances, post-trial petitions or appeals

on their own. There are some vision-impaired (blind) inmates who

have had other inmates file their Administrative Remedies,

Grievances, peti tions or appeals, and the inmate could not finish

the process due to Correctional Officers threatening to move us into

other buildings, which may cause us to get assaulted or worse. That

is why many of the vision-impaired (blind) inmates are unable to

start or finish the Administrative Remedy process. Some of the

vision-impaired (blind) inmates have on record where they have tried

to get assistance in filing important papers which they couldn't

finish on their own because of their disability and the prison 's

failure to provide the vision-impaired (blind) inmates with the means to do so on their own. (See Foulk v. Charrier, 262 F.3d 687 at

689 (8th Cir. 2001».

Please take into consideration all of these issues I have provided in this "Motion for Appointment of Counsel" under 28 U.S.C. 1915, 1975 (E) (I).

I am a vision-impaired (blind) inmate who agrees \d th this motion and seeks counsel by this motion for this Court.
Respectfully submitted,

Rolo'i:p-;-W:LS~ 180h7l~(W;L%
print and sign name
(5 )

 
 Case 1:16-cv-00945-RDB Document 3-3 Filed 04/04/16 Page 1 of 5

NM1E:

3-1Y-lb

ROXBURY CORRECTIONAL INSTITUTION 18701 ROXBURY ROAD HAGERSTOWN, MARYLAND 21746

- _FILED --t~D --ENTERED
- --~CENfD

TO: CLERK OF THE COURT UNITED STATES DISTRICT COURT
~00'IIp qt.fCl

MAR 3 a 2016
rrt

MOTION FOR APPOINTMENT OF COUNSEL

The defendant a.bove is visually impaired (blind) and is serving a sentence at the Roxbury Correctional Institution in the state of ~1aryland. Due to the defendant I s impairment, he is requesting the following from the Federal District Court Judge:

1. Appointment of Counsel under 28 U.S.C. 1915, 1975(E)(2), and where indigent claimant presents exceptional circumstances (See ~ v. Bounds, 518 F.2d 779 at 779 (4th Cir. 1975);also Branch v. Cole, 686 F.2d 264 at 266 (5th Cir. 1982; and Whisenant v. Yuam, 739 F.2d 160 at 163 (4th Cir. 1984)

A. The defendant is in need of counsel for assistance in filing a Federal Civil Rights challenge (42 U.S.C. s1983) due to the fact that Roxbury Correctional Institution does not provide the tools necessary to protect their rights to obtain relief the vision impaired (blind) inmates desperately need.

B. I am an inmate writing this motion for the defendant above because the institution does not provide the vision-impaired (blind) inmates '<1tih the material to do it themselves. I have no legal

Case 1:16-cv-00945-RDB Document 3-3 Filed 04/04/16 Page 2 of 5
experience and the Correctional Officers may cause me physical harm if they find out I'm helping the vision impaired (blind) inmates. I don't know what to do. There has been many "Administrative Remediesll filed and ignored. Over eight (8) years they have known visionimpaired inmates (blind) have stressed their complaints and concerns, yet this Insti tution ~ ~ added to or made changes so that the vision-impaired (blind) inmates can have the equipment they need to have access to the courts. I do know vision-impaired inmates (blind) have a right to file certain petitions \vith the courts: Criminal Appeals (including Post Conviction petitions and Habeas Corpus petitions and appeals) and challenges to conditions of confinement.
C. INMATES ARE FILING PETITIONS FOR THE VISION-IMPAIRED (blind) inmates, and we are not lawyers and I have only a ninth (9th) grade education and this Institution does not provide any assistance or material for the vision-impaired (blind) inmates to have access to the courts. r-Janyof the vision-impaired (blind) inmates have had their grievances (post convictions, habeas corpus and appeals) written and filed by other inmates who are not qualified to do so ou t of necessity. Other vi sion-impaired (blind) inmates have had many grievances (post conviction appeals and habeas corpus petitions) dismissed due to other inmates filing on their behalf (by the other inmate's mistakes). This can be misleading to the visionimpaired (blind) inmate and misleading to the courts as \ve11 as violation of the vision-impaired inmate's First Amendment Right (Levlis v. Casey, 518 U.S. 343 at 355, 116 S.Ct. 2174 (1996); Hudson
(2 )

Case 1:16-cv-00945-RDB Document 3-3 Filed 04/04/16 Page 3 of 5 v. Palmer, 468 U.S. 517 at 523, 104 S.Ct. 3194 (1984).
The vision-impaired (blind) inmate should not have to rely upon other inmates to supervise or direct them \vhen they need legal assistance in filing any legal filing. This may hinder cases in the local courts as well as Federal courts from receiving fair hearings in the courts of 1a\17 • This is also a direct violation of this Institution's rules and regulations (DCD 200-1 V.(A)(4).
Below, the Court \'1illfind a list of complaints that may \-larrant appointment of counsel:
1. Failure to provide material and/or assistance for the vision-impaired (blind) inmates to fil.e an "Informal Inmate Complaint Form", Appendix 2 to DCD 185-002; and resubmissions, Appendix 3 to DCD 185-002.
2. Failure to provide material and/or assistance for the vision-impaired (blind) inmates to file motions in the State courts, State courts of appeal, Federal courts and Federal courts of appeal.
3. Failure to provide material and/or assistance for the vision-impaired (blind) inmates to access legal services - DCDs 1951, 200-2, 135-2, and DCD 200-1 V(G).
4. Failure to provide material and/or assistance for the vision-impaired (blind) inmates to have equal access with all
(3 )

Case 1:16-cv-00945-RDB Document 3-3 Filed 04/04/16 Page 4 of 5
inmates to join programs, services and activities without regard to race, religion, national origin, sex, disabili'I:,Yor political beliefs under DeD 200-1 V(B) Nondiscrimination.
5. Failure to provide material for the vision-impaired inmates concerning (disabled) inmate rights per DeD 200-1 VI(B)(e) 1-2.
6. Failure to provide safety and securi ty wi thin this Insti tution by double-eel ling vision-impaired (blind) inmates knowing that they cannot protect themselves against violent inmates (Harris v. Angelina County, 31 F.3d 331 at 334-336 (5th Cir. 1994».
7. Failure to provide safety and securi ty wi thin this Institution by not providing material for the vision-impaired (blind) inmates to send or receive mail in a legal manner by having other inmates read and write personal and legal mail for the visionimpaired (blind) inmates \vhich is not consistent wi th Division of Correction responsibility to not put vision-impaired (blind) inmate I s family members in danger, as well as the vision-impaired (blind) inmates themselves. This is dangerous because family addresses are exposed and legal mail may be misleading or expose their crime.
8. Failure to provide a Division of Correction Inmate Handbook on audio, detailing inmate rights for the disabled (vision-impaired (blind» inmates while they are being housed in this Institution per DCD 200-1 VI (B)(e) 1-2.
(4 )

Case 1:16-cv-00945-RDB Document 3-3 Filed 04/04/16 Page 5 of 5
Vision-impaired (blind) inmates in the Roxbury Correctional Institution have never had the material or assistance to file Administrative Remedies, Grievances, post-trial petitions or appeals on their own. There are some vision-impaired (blind) inmates who have had other inmates file their Administrative Remedies, Grievances, petitions or appeals, and the inmate could not finish the process due to Correctional Officers threatening to move us into other buildings, which may cause us to get assaulted or worse. That is why many of the vision-impaired (blind) inmates are unable to start or finish the Administrative Remedy process. Some of the vision-impaired (blind) inmates have on record where they have tried to get assistance in filing important papers \vhich they couldn It finish on their own because of their disability and the prison I s failure to provide the vision-impaired (blind) inmates with the means to do so on their own. (See Foulk v. Charrier, 262 F.3d 687 at 689 (8th Cir. 2001».
Please take into consideration all of these issues I have provided in this "~lotion for Appointment of Counsel" under 28 U.S.C. 1915, 1975 (E) (I).
I am a vision-impaired (blind) inmate \vho agrees \..,.1 th this motion and seeks counsel by this motion for this Court.
Respectfully submitted,
(5)

 
 Case 1:16-cv-00945-RDB Document 3-4 Filed 04/04/16 Page 1 of 5

NA~1E :
ROXBURY CORRECTIONAL INSTITUTION 18701 ROXBURY ROAD HAGERSTOWN, MARYLAND 21746

DATE:

TO: CLERK OF THE COURT UNITED STATES DISTRICT COURT

MOTION FOR APPOINTMENT OF COUNSEL

__ --

-h- FILED -If- LOGGLD

ENTERED RECEIVEn

MAR 3 0 28'S

AT BALTit " CLERK, U.S. DI~
DISTRICTc.
BY

,i
DEPUTY

The defendant above is visually impaired (blind) and is serving a sentence at the Roxbury Correctional lnsti tution in the State of t-1aryland. Due to the defendant I s impairment I he is requesting the following from the Federal District Court Judge:

1. Appointment of Counsel under 28 U.S.C. 1915, 1975(E) (2), and where indigent claimant presents exceptional circumstances (See ~ v. Bounds, 518 F.2d 779 at 779 (4th Cir. 1975);also Branch v. Cole, 686 F.2d 264 at 266 (5th Cir. 1982; and Whisenant v. Yuam, 739 F.2d 160 at 163 (4th Cir. 1984)

A. The defendant is in need of counsel for assistance in filing a Federal Civil Rights challenge (42 U.S.C. ~1983) due to the fact that Roxbury Correctional Institution does not provide the tools necessary to protect their rights to obtain relief the vision impaired (blind) inmates desperately need.

B. I am an inmate writing this motion for the defendant above because the institution does not provide the vision-impaired (blind) inma tes ,,,tih the materi al to do it themselves. I have no legal

(1)

Case 1:16-cv-00945-RDB Document 3-4 Filed 04/04/16 Page 2 of 5
experience and the Correctional Officers may cause me physical harm if they find out 11m helping the vision impaired (blind) inmates. I don I t know ',vhatto do. There has been many II Administrati ve Remedies" filed and ignored. Over eight (8) years they have 1<nOI-.'I1 visionimpaired inmates (blind) have stressed their complaints and concerns, yet this Institution has not added to or made changes so that the vision-impaired (blind) inmates can have the equipment they need to have access to the courts. I do know vision-impaired inmates (blind) have a right to file certain peti tions \vith the courts: Criminal Appeals (including Post Conviction petitions and Habeas Corpus petitions and appeals) and challenges to conditions of confinement.
C. INMATES ARE FILING PETITIONS FOR THE VISION-IMPAIRED (blind) inmates, and we are not lawyers and I have only a ninth (9th) grade education and this Institution does not provide any assistance or material for the vision-impaired (blind) inmates to have access to the courts. Many of the vision-impaired (blind) inmates have had their grievances {post convictions, habeas corpus and appeals} written and filed by other inmates who are not qualified to do so out of necessity. Other vision-impaired (blind) inmates have had many grievances (post conviction appeals and habeas corpus petitions) dismissed due to other inmates filing on their behalf (by the other inmate's mistakes). This can be misleading to the visionimpaired (blind) inmate and misleading to the courts as well as violation of the vision-impaired inmate1s First Amendment Right (Lewis v. Casey, 518 U.S. 343 at 355, 116 s.ct. 2174 (1996); Hudson
(2 )

Case 1:16-cv-00945-RDB Document 3-4 Filed 04/04/16 Page 3 of 5
v. Palmer, 468 u.s. 517 at 523, 104 s.ct. 3194 (1984).
The vision-impaired (blind) inmate should not have to rely upon other inmates to supervise or direct them when they need legal assistance in filing any legal filing. This may hinder cases in the local courts as well as Federal courts from receiving fair hearings in the courts of la\v. This is also a direct viola tioD of this Institutionts rules and regulations (DCD 200-1 V.(A}(4).
Below, the Court will find a list of complaints that may warrant appointment of counsel:
1. Failure to provide material and/or assistance for the vision-impaired (blind) inmates to file an "Informal Inmate Complaint Form 1I, Appendix 2 to DCD 185-002; and resubmissions, Appendix 3 to DCD 185-002.
2. Failure to provide material and/or assistance for the vision-impaired (blind) inmates to file motions in the State courts, State courts of appeal, Federal courts and Federal courts of appeal.
3. Failure to provide material and/or assistance for the vision-impaired (blind) inmates to access legal services - DCDs 1951, 200-2, 135-2, and DCD 200-1 V{G).
4. Failure to provide material and/or assistance for the vision-impaired (blind) inmates to have equal access with all
(3)

Case 1:16-cv-00945-RDB Document 3-4 Filed 04/04/16 Page 4 of 5 inmates to join programs, services and activities without regard to race, religion, national origin, sex, disability or political beliefs under DCD 200-1 V(B} Nondiscrimination.
5. Failure to provide material for the vision-impaired inmates concerning (disabled) inmate rights per DCD 200-1 Vl(B)(C) 1-2.
6. Failure to provide safety and security wi thin this lnsti tution by double-ceIling vision-impaired (blind) inmates knowing that they cannot protect themselves against violent inmates (Harris v. Angelina County, 31 F.3d 331 at 334-336 (5th Cir. 1994»).
7. Failure to provide safety and securi ty wi thin this Institution by not providing material for the vision-impaired (blind) inmates to send or receive mail in a legal manner by having other inmates read and write personal and legal mail for the visionimpaired (blind) inmates which is not consistent >'lithDivision of Correction responsibili ty to not put vision-impaired (blind) inmate' s family members in danger, as well as the vision-impaired (blind) inmates themselves. This is dangerous because family addresses are exposed and legal mail may be misleading or expose their crime.
8 • Failure to orovide a Division of Correction Inmate Handbook <.
on audio, detailing inmate rights for the disabled (vision-impaired (blind» inmates while they are being housed in this Institution per DCD 200-1 VI (B)(C) 1-2.
(4 )

Case 1:16-cv-00945-RDB Document 3-4 Filed 04/04/16 Page 5 of 5

Vision-impaired

(blind) inmates in the Roxbury Correctional

Institution have never had the material or assistance to file Administrative Remedies, Grievances, post-trial petitions or appeals

on their own. There are some vision-impaired (blind) inmates v/ho have had other inmates file their Administrative Remedies,

Grievances, peti tions or appeals, and the inmate could not finish

the process due to Correctional Officers threatening to move us into

other buildings, which may cause us to get assaulted or worse. That is why many of the vision-impaired (blind) inmates are unable to

start or finish the Administrative Remedy process. Some of the vision-impaired (blind) inmates have on record where they have tried

to get assistance in filing important papers which they couldn It finish on their o~vn because of their disability and the prison 's

fail ure to provide the vision-impaired (blind) inmates .v•i.th the

means to do so on their own. (See Foulk v. Charrier, 262 F.3d 687 at

689 (8th Cir. 200l)}.

Please take into consideration all of these issues I have provided in this "Motion for Appointment of Counsel" under 28 U.S.C. 1915, 1975 (E) (r).

I am a vision-impaired (blind) inmate who agrees vd th this motion and seeks counsel by this motion for this Court.
Respectfully submitted,
-Ekl II 55t' ft.n.:...;.:..kf~""",-S e_l.L.D<Jh_jp_~ print andlJsign name (5 )

 
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ANTHONY BLUE STEVEN BROWN WILBERT DELANO GREGORY HAMMOND SEDRIC HOLLEY RUSSELL HOPKINS JOHNNIE JAMES TYRELL POLLEY MAYNARD SNEED ROBERT WILSON
Plaintiffs,

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* Civil Action No. RDB-16-945
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v.

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DEPARTMENT OF PUBLIC SAFETY AND *

CORRECTIONAL SERVICES

STEPHEN MOYER

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DAYENA M. CORCORAN

RICHARD MILLER

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Serve On:

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Michael O. Doyle, Assistant Attorney General

Deputy Counsel

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Office of the Attorney General

Department of Public Safety

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and Correctional Services

300 East Joppa Road, Suite 1000

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Towson, Maryland 21286

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Defendants.

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* * * * * * * * * *

FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND COMPENSATORY AND PUNITIVE DAMAGES

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INTRODUCTION 1. Plaintiffs Steven Brown, #299894, Wilbert Delano, #346138, Gregory Hammond, #407534, Sedric Holley, #358967, Russell Hopkins, #438457, Johnnie James, #339779, Tyrell Polley, #443422, Maynard Sneed, #293657, and Robert Wilson, #416017, inmates and former inmates at Roxbury Correctional Institution (“RCI”), bring this action against the Maryland Department of Public Safety and Correctional Services, Stephen Moyer, Dayena Corcoran, and Richard Miller for discriminating against them because they are blind, denying them access to the administrative grievance process and to the courts, and subjecting them to conditions of incarceration that have caused serious harm and create a substantial risk of such harm. Defendants’ actions violate Titles II and IV of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131–12165, 12201–12213, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794, and the Eighth and Fourteenth Amendments to the United States Constitution. On the basis of these violations, Plaintiffs seek a declaratory judgment, injunctive relief, compensatory and punitive damages, attorneys’ fees and costs, and any other available relief. 2. Because Plaintiffs are blind, Defendants deny Plaintiffs private and independent access to vital services, programs, and activities available to inmates at RCI. Defendants’ discrimination and their failures to make reasonable modifications to their policies and provide appropriate auxiliary aids and services threaten Plaintiffs’ health and safety and deprive them of the equal enjoyment of benefits and opportunities available to the rest of the prison population. 3. Plaintiffs are not afforded private, independent, and effective access to the Inmate Handbook or orientation materials, which inform inmates of their rights and responsibilities and
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the rules governing life inside RCI. As a result, Plaintiffs are deprived of vital information and exposed to potential disciplinary action for unknowing violations of RCI’s rules.
4. Plaintiffs are not afforded private, independent, and effective access to initiating and completing the administrative grievance process or pursuing claims in state or federal courts because Defendants do not provide the necessary materials and services in a format accessible to the blind. As a result, Plaintiffs are forced to rely on sighted inmates, when one can be persuaded to help. This system exposes Plaintiffs to a substantial risk of exploitation and abuse.
5. Defendants discriminate against Plaintiffs because of Plaintiffs’ blindness in the administration of various work programs through which inmates receive valuable vocational training and earn wages and credits towards their release.
6. Defendants do not provide the necessary reasonable modifications and auxiliary aids and services that would allow Plaintiffs equal access to educational programming available to inmates at RCI. Nor do they provide Plaintiffs with instruction of equal quality to that available to sighted inmates.
7. Defendants do not provide the necessary reasonable modifications and auxiliary aids and services that would allow Plaintiffs to navigate RCI’s facilities independently. As a result, Plaintiffs are forced to rely on sighted inmates, again exposing them to a substantial risk of exploitation and abuse and denying them the equal use of the facilities.
8. Defendants do not provide the necessary reasonable modifications and auxiliary aids and services that would allow Plaintiffs to access the prison mail services independently and privately, again forcing Plaintiffs to rely on sighted inmates. As a result of Defendants’ failures, not only Plaintiffs, but their friends and families have been exposed to abuse and the substantial risk of abuse.
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9. Based on their underlying convictions and sentences, some Plaintiffs should be housed at less restrictive facilities. By segregating these Plaintiffs with other blind prisoners at RCI, Defendants have denied them their right to be incarcerated in the least restrictive environment consistent with their classification security levels.
10. Despite the fact that inmate safety is one factor Defendants are required to consider when implementing inmate housing assignments, Defendants fail to take the safety concerns presented by Plaintiffs’ blindness into account when placing them in cells. As a result, some Plaintiffs are double-celled at substantial risk to their safety and well-being.
11. On March 24, 2016, Plaintiffs filed a Motion for Appointment of Counsel under 28 U.S.C. § 1915. ECF 1. This Court treated that motion as a Complaint and on April 4, 2016, granted the motion for the purpose of filing an Amended Complaint and a Motion to Proceed in Forma Pauperis. ECF 2.
PARTIES, JURISDICTION, AND VENUE 12. Plaintiff Anthony Blue, #141205, instructed undersigned counsel to dismiss his complaint, and a separate Notice of Dismissal has been filed. 13. Plaintiff Steven Brown, #299894, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI, which is located at 18701 Roxbury Road, Hagerstown, Maryland 21746. Mr. Brown is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
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14. Plaintiff Wilbert Delano, #346138, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI. Mr. Delano is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
15. Plaintiff Gregory Hammond, #407534, was an inmate committed to the custody of the Commissioner of Correction and assigned to RCI from September 24, 2015, to August 8, 2016. On August 8, 2016, Mr. Hammond was released by court order to the Dorchester County Detention Center, 829 Fieldcrest Road, Cambridge, MD 21613. At all times relevant to this action, Mr. Hammond was blind and was a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, could not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
16. Plaintiff Sedric Holley, #358967, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI. Mr. Holley is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
17. Plaintiff Russell Hopkins, #438457, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI. Mr. Hopkins is blind and is a “qualified individual with a disability” as defined in 42 U.S.C §
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12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
18. Plaintiff Johnnie James, #339779, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI. Mr. James is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
19. Plaintiff Tyrell Polley, #443422, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI. Mr. Polley is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
20. Plaintiff Maynard Sneed, #293657, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI. Mr. Snead is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
21. Plaintiff Robert Wilson, #416017, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI.
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Mr. Wilson is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
22. Defendant Department of Public Safety and Correctional Services (“DPSCS,” or “the Department”) is established as a principal department of state government pursuant to Correctional Services Article § 2-101. The Maryland Division of Correction (“DOC”) is a unit of the Department, CSA § 2-201, organized to incarcerate certain criminal defendants sentenced by Maryland courts. The DOC includes RCI.
23. Defendant Stephen Moyer is Secretary of DPSCS. The Secretary of DPSCS is responsible for the administration of the Department. CSA § 2-102. He is aware of DPSCS’s policies and practices regarding inmates, including policies and practices regarding blind inmates, including Plaintiffs. He is aware of the requirements of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated at RCI. He is sued in his individual and official capacities.
24. Defendant Dayena M. Corcoran is the Commissioner of Correction (“the Commissioner”). The Commissioner is responsible for the administration of the DOC and is responsible to the Secretary of DPSCS and the Governor for the well-regulated incarceration of inmates and the supervision of correctional staff. CSA §§ 3-203 et seq. She is also responsible for responding to appeals of complaints and grievances brought by individuals in DOC custody, including Plaintiffs. She is aware of DPSCS and DOC policies and practices regarding inmates, including policies and practices regarding blind inmates, including Plaintiffs. She is aware of the
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requirements of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated at RCI. She is sued in her individual and official capacities.
25. Defendant Richard Miller is the Warden of RCI and is responsible for the governance, discipline, and policies of that institution. CSA § 3-211. Warden Miller is the legal custodian of all individuals incarcerated at RCI, including Plaintiffs, and is responsible for their safe, secure, and humane treatment. He is aware of DPSCS’s policies and practices regarding inmates, including policies and practices regarding blind inmates, including Plaintiffs. He is aware of the requirements of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated at RCI. He is aware of complaints brought by blind inmates at RCI regarding conditions of confinement, including the conditions set forth herein. He is sued in his individual and official capacities.
26. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a).
27. Venue is proper in this District under 28 U.S.C. § 1391(b), as all Defendants reside in this District and a substantial part of the events giving rise to the claims herein occurred within this District.
STATEMENT OF FACTS A. INACCESSIBLE INMATE HANDBOOK AND ORIENTATION
MATERIALS 28. All sighted inmates are provided with a copy of the DOC Inmate Handbook upon entering the prison system. Inmates also receive orientation materials with information specific to the institution in which they are incarcerated.
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29. Plaintiffs have physical disabilities that interfere with their ability to read and write printed text without auxiliary aids and services and reasonable modifications. With appropriate auxiliary aids and services and reasonable modifications, however, Plaintiffs are capable of reading and writing textual material.
30. Defendants have not provided Plaintiffs with an accessible copy of the DOC Inmate Handbook or RCI orientation materials. By denying Plaintiffs these materials in an accessible form, Defendants fail to provide equal and effective communication to Plaintiffs of their rights and responsibilities as inmates at RCI. This failure exposes Plaintiffs to the risk of discipline or confrontations with correctional officers or other inmates because of unknowing rule violations.
31. With reasonable modifications to Defendants’ policies and procedures and appropriate auxiliary aids and services, Plaintiffs could effectively access the DOC Inmate Handbook and RCI orientation materials.
B. DENIAL OF ACCESS TO THE GRIEVANCE PROCESS AND TO THE COURTS
32. To exhaust the grievance process, inmates must complete and submit a number of print forms, including the informal complaint form, the Administrative Remedy Procedure form, the appeal form, and others, together with the submission of written documentation. Inmates also must read responses from the Warden, the Commissioner, the Inmate Grievance Office, administrative law judges, and state and/or federal judges. These are transmitted to inmates in hard-copy, written form.
33. Defendants do not supply blind inmates with any grievance form, response, notice, or decision in an accessible format. Unlike their sighted counterparts, Plaintiffs have no
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way to initiate and complete the grievance or court processes privately and independently. Instead, they must rely on sighted inmates to help them.
34. RCI has a library that contains law books. The library materials are critical to allowing inmates to understand the process for filing and pursuing grievances and lawsuits and to conduct research to support their claims. Inmates also may request copies of court opinions from Library Assistance for State Institutions, a program administered by DPSCS.
35. There are computers and typewriters in RCI’s library that are available for inmates to use to write legal documents, including court pleadings. Inmates may also use pen and paper.
36. Sighted inmates can access the library’s research materials independently and privately. Plaintiffs cannot. Defendants have not supplied Plaintiffs with any auxiliary aids or services or undertaken any reasonable modifications to allow Plaintiffs to independently access the electronic and hard-copy materials in the library or materials provided by Library Assistance for State Institutions. As a result, Plaintiffs have been denied effective and equal access to the grievance process and state and federal court because they are forced to rely on sighted inmates to relay the relevant procedures to them and to conduct their legal research for them.
37. Sighted inmates may write their own legal documents. Plaintiffs cannot. Defendants have not provided Plaintiffs with the auxiliary aids or services or reasonable modifications to allow them to write independently. As a result, Plaintiffs have been denied effective and equal access to the grievance process and state and federal court, because they must rely on sighted inmates to write for them.
38. When pursuing legal action with the help of sighted inmates, Plaintiffs have no way of verifying that the information they intend to submit is accurately conveyed, that the
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requested actions are taken, that the intended arguments are made, that the proper documentation is attached, or that reliable law is cited.
39. Requiring Plaintiffs to rely on sighted inmates for their legal needs also exposes Plaintiffs to extortion, sexual exploitation, and violence.
40. Plaintiffs have been forced to pay sighted inmates in cash or commissary items to receive help with the grievance and court processes and to access the benefits of the library.
41. Plaintiffs have had their grievances and lawsuits dismissed due to mistakes by sighted inmates.
42. Plaintiffs have been unable to initiate or continue the grievance or court processes because no sighted inmate would help them or because they cannot afford the help or risk disclosing personal information, including the nature of their underlying conviction, to another inmate.
43. Staff members at RCI have told Plaintiffs that they are not allowed to seek assistance from sighted inmates to file grievances. Staff members also have retaliated against sighted inmates who have helped Plaintiffs by stripping them of privileges, such as truncating their recreational or shower time and transferring them out of jobs. These actions further limit Plaintiffs’ access to the grievance and court processes.
44. Staff members at RCI also have retaliated against Plaintiffs for participating in this litigation by taking away or restricting privileges, harassing Plaintiffs, threatening to confiscate their property, and, in the case of one case manager, refusing to meet with Plaintiffs assigned to her.
45. Defendants have failed to make reasonable modifications and provide auxiliary aids and services that would allow Plaintiffs to exchange confidential, written communications
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with their attorneys. Because Plaintiffs have no way of reading their mail without help from sighted inmates, if they wish to review documents prepared by their attorneys or send any document in writing to an attorney, they must waive their attorney-client privilege. This severely restricts their access to effective legal representation.
46. Plaintiffs have protested their inability to privately, independently, and effectively access the grievance and court processes to Defendants and their employees. Plaintiffs also have told Defendants and their employees, including Warden Miller, that their dependence on sighted inmates to access the grievance and court processes puts them in danger. In addition, in 2012, an administrative law judge ruled that DOC violated the law by failing to allow blind inmates access to library services.
47. With reasonable modifications to Defendants’ policies and procedures and appropriate auxiliary aids and services, Plaintiffs could privately, independently, and effectively access the grievance process, the library, Library Assistance for State Institutions, and the courts.
C. EXCLUSION FROM WORK PROGRAMS 48. Inmates within DPSCS may earn diminution credits and wages through work assignments. Each diminution credit correlates to a one day reduction in an inmate’s sentence. An inmate may earn five industrial credits each month during which he satisfactorily completes assigned work tasks. Additionally, an inmate may earn up to ten credits each month in which he shows satisfactory progress in special work projects or programs selected by the Commissioner and approved by the Secretary of DPSCS. Work assignments also provide valuable vocational training for re-entry. 49. Plaintiffs are qualified individuals with a disability whose blindness should not prevent them from accessing Defendants’ work programs. Nevertheless, Defendants have
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denied Plaintiffs placement in or removed them from certain jobs based on unfounded safety concerns and stereotypes about the capabilities of blind individuals. Blind inmates offered work placement have been relegated to jobs that pay less and offer fewer diminution credits and opportunities for vocational training.
50. The Department does not allow inmates with no vision to participate in Maryland Correctional Enterprises (“MCE”), an organization located in the DOC in which inmates are employed to provide goods and services to state and local governments and non-profit organizations. Inmates employed by MCE receive on-the-job training and higher wages than inmates in other jobs. Plaintiffs desire to participate in MCE.
51. Defendants have failed to make reasonable modifications to their policies and procedures that would allow Plaintiffs to be eligible for work release programs. Participation in work release programs is critical to qualifying for parole. As a result of Defendants’ discriminatory policies, Plaintiffs must remain incarcerated in more restrictive conditions than necessary, and for longer than necessary, because of their blindness.
52. Plaintiffs have protested Defendants’ discriminatory treatment in administering work programs to Defendants and their employees.
53. With reasonable modifications to Defendants’ policies and procedures and appropriate auxiliary aids and services, the work programs at RCI could be made equally available to Plaintiffs.
D. EXCLUSION FROM EDUCATIONAL PROGRAMS 54. Inmates within DPSCS can take adult basic education classes and GED classes. Through these classes, inmates receive valuable educational benefits crucial to finding employment upon their release. They also may earn five education credits each month toward
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their sentences when they show satisfactory progress in vocational, educational, and training courses.
55. Classes at RCI are not accessible to Plaintiffs. The classes use printed materials that are not provided to blind inmates in an accessible format. Instruction to Plaintiffs is therefore less effective than instruction to sighted inmates. Nor are auxiliary aids and services, like talking calculators, available. Plaintiffs who are enrolled in the GED class must try to do all of the math in their heads, while sighted inmates may use calculators.
56. Plaintiffs have been forced to terminate their enrollment in classes because they were denied reasonable modifications and access to appropriate auxiliary aids and services, such as audio recordings and additional time for taking exams.
57. While sighted inmates at RCI may learn basic literacy through adult basic education classes, Plaintiffs have no access to literacy programs, because Defendants have refused to provide competent instruction in Braille. Certified teachers instruct sighted inmates, but Defendants have refused to hire a professional Braille instructor.
58. Plaintiffs have protested Defendants’ discriminatory treatment in educational programs to Defendants and their employees. In addition, in 2012, an administrative law judge found that blind inmates were unable to fully participate in educational classes because they were not given any help to complete written assignments. The judge also ruled that the DOC violated the law by failing to make reasonable accommodations to allow blind inmates access to Braille lessons and other library services, such as reading material.
59. With reasonable modification to Defendants’ policies and procedures and the provision of appropriate auxiliary aids and services, the educational programs at RCI could be made equally available to Plaintiffs.
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E. DENIAL OF REASONABLE MODIFICATIONS AND AUXILIARY AIDS AND SERVICES TO ALLOW PLAINTIFFS TO INDEPENDENTLY NAVIGATE AND ACCESS RCI FACILITIES AND SERVICES
60. RCI consists of several separate buildings surrounding a central courtyard. Services critical to inmates’ daily lives, such as the gym, medical center, chow hall, and educational programs, are housed in separate buildings. One of the issues for blind persons is learning to be independently mobile. Training in the use of a white cane and other mobility devices is essential to promoting safe movement for blind persons.
61. Defendants have never provided Plaintiffs with any mobility or orientation training to allow them to navigate RCI’s facilities independently. Nor have they provided Plaintiffs the auxiliary aids and services, like white canes, that would afford them that independence. Instead, RCI assigns blind inmates “walkers”—sighted inmates who are paid to guide blind inmates through the facilities.
62. The walker program deprives Plaintiffs of the independence sighted inmates enjoy. While sighted inmates may, at certain times of day, choose which part of RCI to visit, Plaintiffs must rely on their walkers to take them where they want to go. If their walkers do not want to go where they want to go, Plaintiffs are stuck.
63. By facilitating dependence on other inmates, the walker program also exposes Plaintiffs to a substantial risk of extortion, exploitation, and violence. There is no formal screening process in place to ensure that inmates employed as walkers have no history of aggressive behavior or extortion. Plaintiffs have been threatened by their walkers when they asked the walkers to perform tasks the walkers did not want to do, or when they complained about their walkers’ behavior.
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64. There is no system in place to allow Plaintiffs to access any prison services that require reading and/or writing. For example, walkers do not have to help Plaintiffs fill out commissary requests. Plaintiffs have been forced to pay sighted inmates in cash or commissary items to make commissary requests.
65. Plaintiffs have protested the inaccessibility of RCI’s facilities and services to Defendants and their employees. Plaintiffs also have told Defendants and their employees that their dependence on sighted inmates to navigate RCI puts them in danger.
66. With reasonable modifications to Defendants’ policies and procedures and the provision of appropriate auxiliary aids and services, the facilities and services at RCI could be made equally available to Plaintiffs.
F. INACCESSIBLE INSTITUTIONAL MAIL SERVICES 67. Inmates at RCI are able to send and receive mail. 68. Defendants have failed to provide Plaintiffs with the necessary auxiliary aids and services and reasonable modifications to allow them to read and write mail privately and independently. Instead, Plaintiffs are forced to rely on sighted inmates to use the mail services. 69. Plaintiffs’ mail often includes personal and confidential information, legal information (including privileged correspondence with their attorneys), and contact information for their friends and family. Requiring blind inmates to give sighted inmates access to this information in order to use the mail makes blind inmates vulnerable to exploitation, extortion, and violence. 70. Sighted inmates who assist Plaintiffs have used the contact information for Plaintiffs’ friends and families to exploit their correspondents and cause them to feel unsafe.
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71. Plaintiffs have protested the inaccessibility of the mail services to Defendants and their employees. Plaintiffs also have told Defendants and their employees that their dependence on sighted inmates to access the mail puts them and their families and friends in danger.
72. With reasonable modifications to Defendants’ policies and procedures and appropriate auxiliary aids and services, Plaintiffs could privately, independently, and effectively use the institutional mail services.
G. SEGREGATING BLIND INMATES AT RCI REGARDLESS OF CLASSIFICATION SECURITY LEVEL
73. Inmates are assigned to facilities within the DOC based on their classification security levels. An inmate’s classification security level is determined by a number of factors, including the severity of the inmate’s offense, the length of his sentence, and his history of violence.
74. RCI is a medium level II security prison. It is designed for prisoners who pose a risk of violence, are above moderate risk of escape, or who have demonstrated through institutional adjustment that they do not require maximum security status. Prisoners at RCI are more heavily supervised and more restricted in their movement than prisoners at medium level I, minimum, and pre-release security prisons. They do not have access to all of the same services and programs available at lower-security facilities.
75. Defendants segregate blind prisoners at RCI. This policy denies Plaintiffs with classification security levels lower than medium level II the benefit of a less restrictive environment and programs available to sighted inmates with their same classification security levels.
76. Plaintiffs have protested their segregation at RCI to Defendants and their employees.
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H. DOUBLE-CELLING BLIND INMATES AT RISK TO THEIR SAFETY 77. Maryland prisons provide single-cell, double-cell, and even dormitory-style housing for inmates. Cell assignments are designed to meet different needs, including the safety of individual inmates. 78. Single-cell housing can be necessary for the safety of blind inmates, but Defendants do not take safety concerns resulting from an inmate’s blindness into account when distributing cell assignments. 79. Blind inmates can be more vulnerable to theft and less able to forestall or defend against attacks when housed in cells with other inmates. 80. Blind inmates are more vulnerable to acts of aggression when housed in cells with other inmates, because their cellmates may be provoked by their disability and behavior resulting from their disability, including bumping into a cellmate or a cellmate’s possessions or failing to notice and clean up a mess, and because blind inmates may be perceived as more vulnerable. 81. If a blind inmate is housed with a sighted inmate on whom he is dependent, such as for reading, writing, and/or movement around the prison, the risk of abuse and exploitation increases dramatically. 82. Some Plaintiffs are currently housed in double cells, including with sighted inmates on whom they are dependent for reading, writing, and mobility due to Defendant’s failure to provide reasonable and necessary modifications, aids, and services for blind inmates. 83. Previously all blind inmates housed at RCI, including all Plaintiffs, were singlecelled. Defendants have the capacity to give blind inmates the option to be housed in single cells.
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84. Plaintiffs have told Defendants and their employees that double-celling puts them in danger.
85. With reasonable modifications to policies and procedures regarding cell assignments, Plaintiffs could be safely incarcerated.
CLAIMS FOR RELIEF COUNT I
(42 U.S.C. § 1983 – DENIAL OF ACCESS TO THE COURTS, IN VIOLATION OF AMEND. XIV, U.S. CONSTITUTION)
(DEFENDANTS MOYER, CORCORAN, AND MILLER) Plaintiffs adopt and incorporate the preceding paragraphs as they appear above and say further: 86. 42 U.S.C. § 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 87. Plaintiffs bring suit pursuant to 42 U.S.C. § 1983 to seek redress for Defendants’ violation of their Fourteenth Amendment rights to access the courts. Defendants fail to make reasonable modifications and/or provide auxiliary aids and services to make the grievance process, courts, and library accessible to Plaintiffs, compel Plaintiffs to utilize the assistance of sighted inmates at risk to Plaintiffs’ safety and well-being, retaliate against Plaintiffs for attempting to exercise their right to access the courts, and render the services of sighted inmates unavailable to Plaintiffs by retaliating against sighted inmates who provide assistance.
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88. As a result of Defendants’ policies and practices, Plaintiffs have been unable to effectively initiate or complete the grievance or court processes or communicate effectively with their attorneys. Plaintiffs also have had their grievances and lawsuits dismissed due to the errors of the sighted inmates upon whom Plaintiffs are forced to rely.
89. Plaintiffs have been damaged by the conduct of Defendants, and Plaintiffs are entitled to compensatory damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00).
90. The conduct of Defendants demonstrates reckless disregard for the civil rights of Plaintiffs, and punitive damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00) should be awarded to Plaintiffs as a punishment and to deter similar conduct in the future.
COUNT II (42 U.S.C. § 1983 – SUBJECTING PLAINTIFFS TO SERIOUS HARM AND A SUBSTANTIAL RISK OF SERIOUS HARM IN VIOLATION OF AMEND. VIII, U.S.
CONSTUTION, AS APPLIED THROUGH AMEND. XIV) (DEFENDANTS MOYER, CORCORAN, AND MILLER) Plaintiffs adopt and incorporate the preceding paragraphs as they appear above and say further: 91. The Eighth Amendment to the United States Constitution, which has been incorporated against the states by the Fourteenth Amendment, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 92. Plaintiffs bring suit pursuant to 42 U.S.C. § 1983 to seek redress for Defendants’ infliction of cruel and unusual punishments. Defendants fail to reasonably modify their policies or procedures or provide Plaintiffs auxiliary aids or services to allow Plaintiffs to navigate RCI
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and read and write independently and privately. Defendants also refuse to consider Plaintiffs’ blindness when double-celling inmates.
93. Because of these failures, Plaintiffs have suffered serious harm, including physical and sexual abuse, extortion, disruption of their relationships with their loved ones, and severe anxiety and emotional distress. Plaintiffs also are exposed to a substantial risk of such harms.
94. Defendants are aware of the harms and risks created by their policies and practices.
95. Plaintiffs have been damaged by the conduct of Defendants, and Plaintiffs are entitled to compensatory damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00).
96. The conduct of Defendants demonstrates reckless disregard for the civil rights of Plaintiffs, and punitive damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00) should be awarded to Plaintiffs as a punishment and to deter similar conduct in the future.
COUNT III (42 U.S.C. § 12131–12165, 12202–12213 – DISCRIMINATION AGAINST PLAINTIFFS
BECAUSE OF BLINDNESS IN VIOLATION OF THE AMERICANS WITH DISABILITIES ACT)
(DEFENDANTS DEPARTMENT OF PUBLIC SAFETY & CORRECTIONAL SERVICES AND MOYER)
Plaintiffs adopt and incorporate the preceding paragraphs as they appear above and say further:
97. Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §
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12101(b)(l). Title II of the ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
98. Public entities may not “[d]eny a qualified individual with a disability the opportunity to participate in or benefit from [an] aid, benefit, or service” they provide, nor may they afford such individuals “an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others.” 28 C.F.R. § 35.130(b)(1)(i)–(ii). ADA regulations prohibit public entities from providing a qualified individual with a disability “an aid, benefit, or service that is not as effective in affording equal opportunity” to gain a result or benefit and from “limit[ing] a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.” Id. § 35.130(b)(1)(iii), (vii).
99. Public entities must “ensure that communications with . . . participants . . . with disabilities are as effective as communications with others.” Id. § 35.160(a)(1).
100. ADA regulations prohibit a public entity from using “eligibility criteria that screen out or tend to screen out an individual with a disability . . . from fully and equally enjoying any service, program, or activity” unless the entity can make a showing of necessity. Id. § 35.130(b)(1). Any safety requirements must be “based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” Id. § 35.130(h).
101. The “criteria or methods of administration” of a public entity may not “have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability” or “have the purpose or effect of defeating or substantially impairing accomplishment
22

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of the objectives of the public entity’s program with respect to individuals with disabilities.” Id. § 35.130(b)(3).
102. Public entities are required to “make reasonable modifications in policies, practices, or procedures . . . to avoid discrimination on the basis of disability,” unless such modifications “would fundamentally alter the nature of the service, program, or activity.” Id. § 35.130(b)(7). They must also “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity.” Id. § 35.160(b)(1); see also 42 U.S.C. §§ 12102(4)(E)(i)(III), 12103(1), 12131(2). Auxiliary aids and services must “protect the privacy and independence of the individual with a disability.” 28 C.F.R. § 35.160(b)(2). Auxiliary aides and services include “qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments” and the “acquisition or modification of equipment or devices.” 42 U.S.C. § 12103(1).
103. Title IV of the ADA prohibits discrimination against individuals for “oppos[ing] any act or practice made unlawful” by the ADA or for participating in any way in an investigation proceeding under the ADA. 42 U.S.C. § 12203(a). It also makes it “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by” the ADA. Id. § 12203(b).
104. Plaintiffs, as blind persons, are individuals with a disability within the meaning of Title II of the ADA, 42 U.S.C. § 12131(2).
23

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105. Defendants are departments, agencies, or instrumentalities of the State of Maryland or representatives of the same and are “public entit[ies]” within the meaning of 42 U.S.C. § 12131(1)(B).
106. The Inmate Handbook and orientation materials, administrative grievance process, Defendants’ facilitation of communication between inmates and the courts, the library, the work programs, the educational programs, the building facilities, the institutional mail system, and inmate housing are services, programs, or activities of a public entity under 42 U.S.C. § 12132.
107. As inmates of RCI, Plaintiffs are qualified to participate in and receive the benefits of each of these services, programs, or activities.
108. Defendants deny Plaintiffs equal access to and benefits from services, programs, and activities because of Plaintiffs’ blindness when they house Plaintiffs with lower classification security levels at RCI and when they refuse to consider the safety concerns of blind inmates when double-celling prisoners. They discriminate against Plaintiffs because of their blindness when they relegate them to jobs that provide lower pay and fewer diminution credits based on stereotypes about their abilities as blind individuals. Defendants discriminate against Plaintiffs because of their blindness when they refuse to provide competent literacy instruction to blind inmates. Retaliation by Defendants’ employees against inmates who assist Plaintiffs with the grievance and court processes also constitutes discrimination against Plaintiffs because of their blindness.
109. Defendants’ administration of inmate housing assignments has the effect of subjecting Plaintiffs to discrimination on the basis of their blindness and substantially impairing
24

Case 1:16-cv-00945-RDB Document 23 Filed 09/07/16 Page 25 of 33
the objectives of the inmate housing program by subjecting Plaintiffs to exploitation and violence.
110. Defendants’ failure to provide reasonable modifications to the Inmate Handbook and orientation materials, grievance process, process for communicating with courts, library, work programs, educational programs, and institutional mail system, and their failures to provide appropriate auxiliary aids and services to allow Plaintiffs to access these programs and navigate RCI independently have subjected Plaintiffs to discrimination on the basis of their disability. Defendants deny Plaintiffs their right to equally and effectively participate in these services, programs, and activities while maintaining their independence and privacy. Defendants also have failed to ensure that communications with Plaintiffs through these services, programs, and activities are as effective as communications with sighted inmates.
111. Defendants have retaliated against Plaintiffs by revoking or restricting their privileges, harassing them, threatening to confiscate their property, and refusing to meet with them because of their participation in this litigation.
112. As a result of Defendants’ discriminatory policies and practices, Plaintiffs have suffered physical and sexual abuse, extortion, the disruption of their relationships with their loved ones, and severe anxiety and emotional distress. Plaintiffs also have been unable to initiate or complete the grievance or court processes or communicate effectively with their attorneys and have had their grievances and lawsuits dismissed. They have lost the opportunity to receive diminution credits, wages, and training in jobs with better opportunities for employment outside the prison. They have lost educational opportunities, including the opportunity to receive their GEDs and become literate in Braille, opportunities that are vital to their future employment. Some Plaintiffs have suffered the reduced freedom and access to programming that comes with
25

Case 1:16-cv-00945-RDB Document 23 Filed 09/07/16 Page 26 of 33
housing in a more restrictive facility than necessary for inmates with their classification security levels. Plaintiffs also have experienced emotional pain and suffering as a result of Defendants’ discrimination.
113. Defendants’ failures to allow access to their services, benefits, activities, programs, or privileges and provide reasonable modifications and auxiliary aids and services are policies, regular practices, and/or customs of Defendants. These failures are ongoing.
114. Defendants’ failure to comply with the ADA has resulted, and will continue to result, in harm to Plaintiffs, as Plaintiffs will continue to be in the custody or under the supervision of Defendants and will continue to attempt participation in the services, programs, and activities described herein, without the equal access mandated by the ADA. The resulting harm will continue unless and until Defendants are ordered by this Court to make modifications to their policies, practices, and procedures pursuant to the ADA.
115. Defendants’ discriminatory treatment of Plaintiffs is done intentionally or with deliberate indifference to Plaintiffs’ protected rights.
116. Plaintiffs have been damaged by the conduct of Defendants, and Plaintiffs are entitled to compensatory damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00).
COUNT IV (29 U.S.C. § 794 – DISCRIMINATION AGAINST PLAINTIFFS BECAUSE OF BLINDNESS IN VIOLATION OF SECTION 504 OF THE REHABILITATION ACT) (DEFENDANTS DEPARTMENT OF PUBLIC SAFETY & CORRECTIONAL
SERVICES AND MOYER) Plaintiffs adopt and incorporate the preceding paragraphs as they appear above and say further:
26

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117. Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
118. Section 504 defines “program or activity,” in pertinent part, as “all of the operations of a department, agency, . . . or other instrumentality of a State; or the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended.” Id. § 794(b)(1). The requirements of Section 504 apply “to each recipient of Federal financial assistance from the Department of Justice.” 28 C.F.R. § 42.502.
119. Federally funded programs and activities may not “[d]eny a qualified handicapped person the opportunity accorded to others to participate” or “achieve the same benefits that others achieve” from the program or activity. Id. § 42.503(b)(1)(i)–(ii).
120. Recipients of federal funds are required to “insure that communications with their . . . beneficiaries are effectively conveyed to those having impaired vision.” Id. § 42.503(e).
121. The “criteria or methods of administration” of a recipient of federal funds may not “purposefully or in effect discriminate on the basis of handicap” or “defeat or substantially impair accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” Id. § 42.503(b)(3).
122. Furthermore, “[a] recipient that employs fifteen or more persons shall provide appropriate auxiliary aids to qualified handicapped persons with impaired sensory . . . skills where a refusal to make such provision would discriminatorily impair or exclude the persons in the program receiving federal financial assistance.” Id. § 42.503(f). Appropriate auxiliary aids
27

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include, but are not limited to, “brailed and taped materials, . . . readers, . . . [a]ttendants, individually prescribed devices, readers for personal use or study, or other devices of a personal nature.” Id. § 42.503(f).
123. A recipient may not “[i]ntimidate or retaliate against any individual, whether handicapped or not, for the purpose of interfering with any right secured by section 504.” Id. § 42.503(b)(1)(vii).
124. Defendants receive federal grants, thereby subjecting them to the requirements of Section 504. Defendants employ more than fifteen people.
125. RCI and, among other things, its Inmate Handbook and orientation materials, administrative grievance process, facilitation of communication between inmates and the courts, library, work programs, educational programs, building facilities, institutional mail system, and inmate housing are services, programs, or activities of Defendants.
126. Plaintiffs, as blind persons, are individuals with a disability within the meaning of Section 504.
127. As inmates of RCI, Plaintiffs are eligible to participate in and receive the benefits of each of these services, programs, or activities. Id. § 42.540(l)(2).
128. Defendants deny Plaintiffs equal access to and benefits from services, programs, and activities because of Plaintiffs’ blindness when they house Plaintiffs with lower classification security levels at RCI and when they refuse to consider the safety concerns of blind inmates when double-celling prisoners. They discriminate against Plaintiffs because of their blindness when they relegates them to jobs that provide lower pay and fewer diminution credits based on stereotypes about their abilities as blind individuals. Defendants discriminate against Plaintiffs because of their blindness when they refuse to provide competent literacy instruction to
28

Case 1:16-cv-00945-RDB Document 23 Filed 09/07/16 Page 29 of 33
blind inmates. Retaliation by Defendants’ employees against inmates who assist Plaintiffs with the grievance or court processes also constitutes discrimination against Plaintiffs because of their blindness.
129. Defendants’ administration of inmate housing assignments has the effect of subjecting Plaintiffs to discrimination on the basis of their blindness and substantially impairing the objectives of the inmate housing program by subjecting Plaintiffs to exploitation and violence.
130. Defendants’ failures to provide reasonable modifications to the Inmate Handbook and orientation materials, grievance process, process for communicating with courts, library, work programs, educational programs, and institutional mail system, and their failures to provide appropriate auxiliary aids and services to allow Plaintiffs to access these programs and navigate RCI independently have subjected Plaintiffs to discrimination on the basis of their disability. Defendants deny Plaintiffs their right to equally and effectively participate in these services, programs, and activities while maintaining their independence and privacy. Defendants also have failed to ensure that communications with Plaintiffs through these services, programs, and activities are as effective as communications with sighted inmates.
131. Defendants have retaliated against Plaintiffs by revoking or restricting their privileges, harassing them, threatening to confiscate their property, and refusing to meet with them because of their participation in this litigation.
132. As a result of Defendants’ discriminatory policies and practices, Plaintiffs have suffered physical and sexual abuse, extortion, the disruption of their relationships with their loved ones, and severe anxiety and emotional distress. Plaintiffs also have been unable to initiate or complete the grievance or court processes or communicate effectively with their attorneys and
29

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have had their grievances and lawsuits dismissed. They have lost the opportunity to receive diminution credits, wages, and training in jobs with better opportunities for employment outside the prison. They have lost educational opportunities, including the opportunity to receive their GEDs and become literate in Braille, opportunities that are vital to their future employment. Some Plaintiffs have suffered the reduced freedom and access to programming that comes with housing in a more restrictive facility than necessary for people with their classification security levels. Plaintiffs also have experienced emotional pain and suffering as a result of Defendants’ discrimination.
133. Defendants’ failures to provide equal access to their services, benefits, activities, programs, or privileges, and provide reasonable modifications and auxiliary aids and services, are policies, regular practices, and/or customs of Defendant. These failures are ongoing.
134. Defendants’ failure to comply with Section 504 has resulted, and will continue to result, in harm to Plaintiffs, as Plaintiffs will continue to be in the custody or under the supervision of Defendants, and will continue to attempt to participate in the services, programs, and activities described herein, without the equal access mandated by Section 504. The resulting harm will continue unless and until Defendants are ordered by this Court to make modifications to their policies, practices, and procedures pursuant to Section 504.
135. Defendants’ discriminatory treatment of Plaintiffs is done intentionally or with deliberate indifference to their protected rights.
136. Plaintiffs have been damaged by the conduct of Defendants, and Plaintiffs are entitled to compensatory damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00).
30

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WHEREFORE, PLAINTIFFS respectfully request this Honorable Court to grant the following relief:
A. Enjoin Defendants from denying Plaintiffs equal and effective access to the Inmate Handbook and RCI orientation materials, grievance process, courts, library, work programs, educational programs, building facilities, institutional mail system, and to safe housing;
B. Enjoin Defendants from denying Plaintiffs the ability to read, write, conduct legal research, and navigate RCI without relying on sighted inmates;
C. Enjoin Defendants from double-celling Plaintiffs with sighted inmates without an option for single-celling;
D. Enjoin Defendants from retaliating against Plaintiffs for engaging in protected activity under the Americans with Disabilities Act and/or Rehabilitation Act;
E. Enjoin Defendants to award Plaintiffs diminution credits towards their release in an amount commensurate with Plaintiffs’ lost opportunities to earn such credits through work, educational, or training programs as a result of Defendants’ discriminatory actions;
F. Enjoin Defendants from housing inmates with lower classification security levels at RCI without an option for being housed at facilities commensurate with their classification security levels;
G. Award compensatory damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00) in favor of Plaintiffs and against Defendants;
H. Award punitive damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00) in favor of Plaintiffs and against Defendants;
I. Award Plaintiffs their costs and attorneys’ fees in this action; and J. Grant any and all additional relief Plaintiffs’ causes require.
31

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Date: September 7, 2016

Respectfully submitted,
/s/ Stephen Z. Meehan Federal Bar No. 23915
/s/ Damien Dorsey Federal Bar No. 19194
Prisoner Rights Information System of Maryland, Inc.
P.O. Box 929 Chestertown, Maryland 21620 (410) 778-1700 (phone) (410) 778-3543 (fax) smeehan@prisminc.org ddorsey@prisminc.org
/s/ Daniel F. Goldstein Federal Bar No. 01036
/s/ Joshua R. Treem Federal Bar No. 00037
Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, Maryland 21202 (410) 962-1030 (phone) (410) 385-0869 (fax) dfg@browngold.com jtreem@browngold.com
Attorneys for Plaintiffs

32

Case 1:16-cv-00945-RDB Document 23 Filed 09/07/16 Page 33 of 33 JURY TRIAL DEMAND
Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiffs, by their counsel, hereby demand a trial by jury on all claims so triable in this action.
/s/ Stephen Z. Meehan Federal Bar No. 23915
/s/ Damien Dorsey Federal Bar No. 19194
/s/ Daniel F. Goldstein Federal Bar No. 01036
/s/ Joshua R. Treem Federal Bar No. 00037
33

 
 Case 1:16-cv-00945-RDB Document 25 Filed 09/09/16 Page 1 of 2

Case 1:16-cv-00945-RDB Document 25 Filed 09/09/16 Page 2 of 2

 
 Case 1:16-cv-00945-RDB Document 153 Filed 03/12/19 Page 1 of 3
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

CHAMBERS OF BETH P. GESNER CHIEF UNITED STATES MAGISTRATE JUDGE MDD_BPGchambers@mdd.uscourts.gov

March 12, 2019

101 WEST LOMBARD STREET BALTIMORE, MARYLAND 21201
(410) 962-4288 (410) 962-3844 FAX

Memorandum to Counsel

Subject: Brown et al. v. Department of Public Safety and Correctional Services et al. Civil No.: RDB-16-945

Dear Counsel:

This letter confirms the results of the motions hearing held on March 11, 2019. Prior to the hearing, I reviewed plaintiffs’ letter dated March 6, 2019 (ECF No. 143) and defendants’ letter dated March 6, 2019 (ECF No. 144) requesting my assistance in resolving a discovery dispute pursuant to my informal discovery dispute procedure (ECF No. 101). I also reviewed plaintiffs’ Motion for Sanctions Under Rule 37(b)(2) (“Motion for Sanctions”) (ECF No. 141), plaintiffs’ Revised Motion for Sanctions Under Rule 37(b)(2) (“Revised Motion for Sanctions”) (ECF No. 145), and defendants’ Opposition to plaintiffs’ Revised Motion for Sanctions (“Opposition”) (ECF No. 147).

In their Revised Motion for Sanctions, plaintiffs ask for sanctions due to defendants’ delayed production of discovery, including electronically stored information (“ESI”), non-party blind inmate files, and a privilege log. (ECF No. 145 at 4–5). As stated by defendants in their Opposition and during the motions hearing, defendants produced all ESI and their privilege log to plaintiffs on March 11, 2019. (ECF No. 147 at 2). As to the non-party blind inmate files, defendants are in the process of obtaining these documents and are to produce documents to plaintiffs as soon as possible and on a rolling basis. Accordingly, plaintiffs’ motion is denied, as the sanctions sought by plaintiffs are inappropriate at this time. If plaintiffs later believe that they need to file supplemental briefs in support of, or in opposition to, motions for summary judgment in order to raise or respond to any information contained in any discovery produced after March 13, 2019, plaintiffs may direct their request to do so to my attention.

In their letter dated March 6, 2019 (ECF No. 143), plaintiffs ask that defendants be compelled to respond to eight interrogatories and four requests for production. During the hearing, each of these discovery requests was discussed, and the purpose of this letter is to summarize the further action to be taken by each party as to each discovery request.

For Brown Interrogatory No. 16, plaintiffs are to advise defendants as to which positions plaintiffs applied for but were not selected, or direct defendants to which interrogatories contain said information. Defendants are then to answer this interrogatory as narrowed for each position identified by plaintiffs.

For Holley Interrogatory No. 6, defendants are to supplement their answer to clarify their position regarding blind inmates’ ability to participate in programs as stated during the hearing.

Case 1:16-cv-00945-RDB Document 153 Filed 03/12/19 Page 2 of 3 Brown et al. v. Department of Public Safety and Correctional Services et al. Civil No.: RDB-16-945 March 12, 2019 Page 2
For Delano Interrogatory No. 8, plaintiffs have narrowed their request to information regarding training of inmates who participate in the walker program. Defendants are to supplement their answer to clarify their response as stated during the hearing.
For Delano Interrogatories Nos. 9 and 14, as well as James Requests for Production Nos. 17–19, plaintiffs are to narrow their request and provide defendants with any information they have regarding the identity of inmates who served as walkers for plaintiffs. Defendants are to investigate whether it is possible to identify inmates who served as walkers and, if so, supplement their answers to plaintiffs’ narrowed requests.
For Wilson Interrogatory No. 14, defendants are to answer this interrogatory in full.
For Holley Interrogatory No. 14, plaintiffs have narrowed this request to Alcoholics Anonymous, Narcotics Anonymous, Thinking for a Change, Anger Management, Alternatives to Violence, and the Maryland Correctional Enterprises graphics plant at RCI. (ECF No. 142-1 at 4). Defendants are to answer this narrowed interrogatory in full.
For Snead Interrogatory No. 18, plaintiffs stated during the hearing that they were willing to narrow this request to auxiliary aids and services, i.e., National Library Service cartridges and cartridge players, ZooMax, KNFB Readers, click rules, Victor Reader Stream, tactile calipers, slates and styluses, computers, MP3 players, CD players, tape players, or other music players, devices with USB charger cords, USB storage devices, tape recorders or audio recorders, and cameras. Defendants are to answer this narrowed interrogatory in full.
For Snead Request for Production No. 7, plaintiffs are to narrow their request to any specific auxiliary aids or programs that were considered by DPSCS independent of requests by inmates. Defendants are then to answer this interrogatory as narrowed for each aid or program identified by plaintiffs.
Defendants are to produce all outstanding documents and answer all interrogatories as noted above by the close of business on Wednesday, March 13, 2019.1
Additionally, the parties are to make themselves available to meet and confer regarding the document productions discussed herein and any potential objections to defendants’ privilege log. By Wednesday, March 13, 2019, defendants are to provide plaintiffs and the court with any law that they rely upon in support of their claim of privilege.
1 Defendants may request to extend this deadline if they present me with good cause for an extension as to a particular document.

Case 1:16-cv-00945-RDB Document 153 Filed 03/12/19 Page 3 of 3 Brown et al. v. Department of Public Safety and Correctional Services et al. Civil No.: RDB-16-945 March 12, 2019 Page 3
Notwithstanding the informal nature of this letter, it is an Order of the court and will be docketed accordingly.
Very truly yours,
/s/
Beth P. Gesner Chief United States Magistrate Judge

 
 Case 1:16-cv-00945-RDB Document 163 Filed 03/15/19 Page 1 of 1
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

CHAMBERS OF BETH P. GESNER CHIEF UNITED STATES MAGISTRATE JUDGE MDD_BPGchambers@mdd.uscourts.gov

March 15, 2019

101 WEST LOMBARD STREET BALTIMORE, MARYLAND 21201
(410) 962-4288 (410) 962-3844 FAX

Memorandum to Counsel

Subject: Brown et al. v. Department of Public Safety and Correctional Services et al. Civil No.: RDB-16-945

Dear Counsel:

I have received defendants’ letter dated March 13, 2019 (ECF No. 157) providing me with a summary of the law they rely upon in support of their claims of executive/deliberative process privilege in accordance with my letter order dated March 12, 2019 (ECF No. 154). I have also received plaintiffs’ letter dated March 13, 2019 (ECF No. 158) providing me with a summary of the law they rely upon in support of their position that the privilege does not apply in this case.

While I appreciate the parties providing me with the applicable general statements of law governing the executive/deliberate process privilege as I requested, I write to clarify that the parties have not, at this time, presented me with a discrete discovery dispute for my consideration. Accordingly, the parties are directed to meet and confer regarding all outstanding objections on the basis of privilege. If the parties are unable to reach an agreement, plaintiffs are to bring these issues to my attention in the form of a motion to compel. Prior to filing a motion, however, counsel are to agree upon and propose an expedited briefing schedule to include the motion to compel (no more than ten pages), an opposition in response to the motion to compel (no more than ten pages), and a reply in support of the motion to compel (no more than four pages) for my approval.1

Notwithstanding the informal nature of this letter, it is an Order of the court and will be docketed accordingly.

Very truly yours,
/s/
Beth P. Gesner Chief United States Magistrate Judge
1 I note that neither party cited to Heyer v. U.S. Bureau of Prisons, No. 11-03118D, 2014 WL 454946 (E.D.N.C. Sept. 12, 2014). I bring this case to counsel’s attention, as I believe its analysis is helpful to the issues presented herein. Accordingly, if plaintiffs file a motion to compel, the parties should include in their papers a copy of the privilege log, summaries of any documents at issue, and evidence in support of their respective positions as to whether the documents constitute deliberative and predecisional materials. See id. at *3. The parties should also provide evidence in support of their respective positions as to whether plaintiffs’ need for the documents outweighs the risk of harm from disclosure. See id. at *5.

 
 Case 1:16-cv-00945-RDB Document 230 Filed 05/13/19 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

STEVEN BROWN, et al.,

*

Plaintiffs, v.

* Civil Action No. RDB-16-0945
*

DEPARTMENT OF PUBLIC

*

SAFETY AND CORRECTIONAL

SERVICES, et al.,

*

Defendants.

*

* * * * * * * * * * * * * MEMORANDUM OPINION

In these consolidated cases, nine blind or visually impaired inmates formerly or

presently housed in correctional facilities maintained by the Maryland Department of Public

Safety and Correctional Services have challenged the conditions of their confinement.

(Consolidation Order, ECF No. 2.) Together, Plaintiffs Steven Brown (“Brown”), Wilbert M.

Delano (“Delano”), Gregory Hammond (“Hammond”), Sedric Holley (“Holley”), Russell

Hopkins (“Hopkins”), Johnny James (“James”), Tyrell Polley (“Polley”), Maynard Snead

(“Snead”), and Robert Wilson (“Wilson”) (collectively, “Plaintiffs”) allege that Defendants

Department of Public Safety and Correctional Services (the “Department”), Dayena Corcoran

(“Corcoran”), Richard Miller (“Miller”), and Stephen Moyer (“Moyer”)1 have deprived them

of their right to access the courts, subjected them to cruel and unusual punishment, and

discriminated against them on the basis of their disabilities. Their Amended Complaint (ECF

1 While this case was pending, Robert L. Green (“Green”) became the Secretary of the Department of Public Safety and Correctional Services. Pursuant to Rule 25(d), Green is hereby substituted for Moyer with respect
to all official capacity claims brought against Moyer. Plaintiffs’ Motion for Substitution or for Judicial Notice of Substitution under Federal Rule of Civil Procedure 25(d) (ECF No. 208) is GRANTED.

Case 1:16-cv-00945-RDB Document 230 Filed 05/13/19 Page 2 of 59
No. 23) brings two Counts pursuant to 42 U.S.C. § 1983 (Counts I and II), a third Count under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. (Count III), and a fourth Count invoking Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Count IV).
Currently pending before this Court are Defendants’ Motion to Dismiss (ECF No. 100); Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 172); Defendants’ Motion for Summary Judgment (ECF No. 178); Plaintiffs’ Motion for Leave to File a Surreply (ECF No. 207); and Plaintiffs’ Motion for Substitution or for Judicial Notice of Substitution under Federal Rule of Civil Procedure 25(d) (ECF No. 208). On April 24, 2019 this Court conducted a Motions Hearing and heard argument on the pending motions. See Local Rule 105.6 (D. Md. 2018). For the reasons stated below, Defendants’ Motion to Dismiss (ECF No. 100) is DENIED AS MOOT; Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 172) is DENIED; and Defendants’ Motion for Summary Judgment (ECF No. 178) is GRANTED IN PART AND DENIED IN PART; Plaintiffs’ Motion for Leave to File a Surreply (ECF No. 207) is GRANTED;2 and Plaintiffs’ Motion for Substitution or for Judicial Notice of Substitution under Federal Rule of Civil Procedure 25(d) (ECF No. 208) is GRANTED. Summary Judgment IS ENTERED in favor of all Defendants on Counts I and II. Counts III and IV will proceed as to the Department and Robert L. Green in his official capacity, commencing on Monday, June 17, 2019.
BACKGROUND
2 Plaintiffs’ Surreply addresses newly-cited evidence introduced by Defendants during the Motions Hearing. Because the Surreply concisely addresses this novel issue, Plaintiffs are GRANTED leave to file the Surreply. (ECF No. 207-1.)
2

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In ruling on the pending motions for summary judgment, this Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769 (2007); see also Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). Plaintiffs allege that Defendants have subjected them to constitutional deprivations and discriminated against them on the basis of their disabilities. All nine Plaintiffs suffer from varying degrees of visual impairment. (Am. Compl. ¶¶ 13-21; PSJ3 Ex. 1.) When Plaintiffs commenced this action by filing nine pro se Complaints in March 2016, all Plaintiffs were incarcerated at the Roxbury Correctional Institution (“RCI”). Some Plaintiffs have also been housed at other institutions like Eastern Correctional Institution (“ECI”), Patuxent Institution, and the Maryland Reception, Diagnostic and Classification Center (“MRDCC”). (ECF Nos. 1, 3.) Since the filing of this case, five Plaintiffs (Delano, Hammond, Holley, Hopkins, and Polley) have been released.
I. Structure of the Department. The Department of Public Safety and Correctional Services is overseen by the
Department Secretary. (PSJ Ex. 16.) Within the Department, the Commissioner of Correction supervises the wardens at each prison. (PSJ Ex. B, Corcoran Dep. 46:13-20.) Roxbury Correctional Institution (“RCI”) and Eastern Correctional Institution (“ECI”) are facilities within the Division of Correction, each of which is managed by a Warden or Acting Warden. (PSJ Ex. C, Campbell 30(b)(6) Dep.; Ex. D, West 30(b)(6) Dep.)
3 In accordance with the Plaintiffs’ citation practices, this Court references exhibits attached to the Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 172) as “PSJ” and those attached to Defendants’ Motion for Summary Judgment (ECF No. 178) as “DSJ”. Exhibits attached to the Responses and Replies to these Motions are referenced using a similar shorthand (e.g., Defs.’ Reply or Pls.’ Resp).
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Defendant Stephen Moyer was the Secretary of the Department since January 2015. (DSJ Ex. 11, Moyer Dep. 18:5-16.) In this position, he managed approximately 10,000 employees and a $1.4 billion budget. (Id. at 32:9-33:15.) He was heavily involved in coordination efforts between his Department and other Maryland political bodies and had little involvement in the day-to-day operations at Department facilities: his work included preparing and participating in budgetary hearings and meetings with the Governor’s Office and the Department of Legislative Affairs, monitoring pending bills, and meeting with other cabinet members. (Id. at 32:2-34:5, 36:2-38:1.) On March 7, 2019, Moyer announced his departure from state service effective at the end of that month. (Defs.’ Mot. Summ. J. 5, n.4.) While this case was pending, Robert L. Green (“Green”) became the Secretary of the Department of Public Safety and Correctional Services.
Defendant Dayena Corcoran was the Commissioner of Correction for the Department from 2016 until September 2018. (DSJ Ex. 12, Corcoran Dep. 46:10-12, 48:2-10.) In that role, she was responsible for implementing and enforcing Division of Correction policies and managed the wardens. (Id. at 46:10-47:14, 99:3-20.) Defendant Richard Miller was the Warden of RCI from April 2015 to November 2017. (DSJ Ex. 13, Miller Dep. 25:10-16.) His job required him to manage the operations of the entire RCI facility, including over 400 employees and 1,800 inmates. (Id. at 57:2-58:2.)
The Department contracts with the Maryland Department of Labor, Licensing and Regulation (“Department of Labor”) to provide educational, vocational shop, and library programs, services, and activities at RCI and ECI. (PSJ Ex. 17; Ex. E, Reid 30(b)(6) Dep. 172:7–10, 190:4–8, 192:5–11.) The Department also contracts or otherwise arranges with
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third-party entities to provide medical services and other programs, services, and opportunities to inmates at RCI. (PSJ. Ex. F, Baucom 30(b)(6) Dep. 37:10– 38:9; Ex. E, Reid 30(b)(6) Dep. 291:4–292:11.)
II. Services Provided at RCI. Plaintiffs generally complain that Defendants have provided inadequate aids and
services to permit them to conduct their affairs in prison privately and independently. Because they have been denied adequate training or other services, they complain that they have been forced to rely on other inmates to complete various tasks like filing grievances and court complaints, reading and writing correspondence, and navigating prison facilities. They also complain that they have been forced to share prison cells with other inmates, a practice the parties refer to as “double-celling” (as opposed to being celled alone, or “single-celling”) and that they have been excluded from various programs on the basis of their visual impairments, including desirable jobs. The net effect of all this, Plaintiffs complain, is that they have been rendered vulnerable to violence and extortion at the hands of sighted inmates and they have been denied benefits accorded to other inmates, including additional diminution credits.4 In the following pages, these grievances are discussed in greater detail.
A. Housing Blind Inmates at RCI and ECI. Defendants admit that RCI, a medium security facility, was and continues to be the designated Department facility for blind inmates, regardless of their security classification. (PSJ Ex. E, Reid 30(b)(6) Dep. 37:15–18; Ex. C, Campbell 30(b)(6) Dep. 29:16–17, 194:5–7,
4 Diminution credits offer a means by which inmates can reduce the length of their sentences.
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414:18–20; Ex. K, Baker Dep. 103:21–104:14; Ex. M, Gelsinger Dep. 122:5–7; Ex. N, Hershberger Dep. 19:14–16.) Although some inmates with visual impairments have been housed at ECI, once an inmate’s visual impairment becomes sufficiently severe, they are sent to RCI because ECI does not “have the accommodations that Roxbury Correctional Institution has” for the blind. (PSJ Ex. D, West 30(b)(6) Dep. 60:7–61:5.) With the exception of a few days spent at other facilities, all Plaintiffs have spent all or the majority of their incarceration at RCI, with some Plaintiffs (Hammond and Wilson) also housed at ECI for significant periods. (PSJ Ex. 27; Ex. 28; Ex. 29; Ex. 30; Ex. 31; Ex. 32, at 1676; Ex. 33, at 183; Ex. 12, at 1084–85; Ex. J-78, at POLLEY 420–21; Ex. 14; Ex. 34.3.) Plaintiffs Brown, James, Snead, and Wilson remain incarcerated at RCI. (See PSJ Ex. 35; Ex. 12, at 1084–85; Ex. 14; Ex. D, West 30(b)(6) Dep. 44:8–20.)
B. Communications with Blind Inmates. The Department provides access to many of its programs, activities, and services through reading and writing but does not provide documents in alternative formats that blind inmates can access independently, such as large print, audio, Braille, or accessible electronic formats that could be accessed on a computer with the use of a screen reader or screen magnification software. (PSJ Ex. E, Reid 30(b)(6) Dep. 116:19–117:19, 201:11–16; Ex. C, Campbell 30(b)(6) Dep. 128:14–21; Ex. M, Gelsinger Dep. 108:11–109:18; Ex. D, West 30(b)(6) Dep. 51:15–52:15; see Ex. 19, Olivero Rpt. 6, 20–27 (discussing alternative formats for print usable by blind people)). When inmates want to make a request or register a complaint, they can use either an informal or formal grievance process, each of which relies on the submission of a print form.
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The informal request process depends on submission of an informal complaint form or another written document. (PSJ Ex. C, Campbell 30(b)(6) Dep. 99:21–100:11; Ex. D, West 30(b)(6) Dep. 50:21–51:14.) That form is not available in any alternative formats. (PSJ Ex. E, Reid 30(b)(6) Dep. 116:15-117:19; Ex. D, West 30(b)(6) Dep. 51:15–52:15.) The formal complaint process, known as the administrative remedy procedure (“ARP”), requires use of a print form that is not available in large print or any other accessible format. See Ex. E, Reid 30(b)(6) Dep. at 201:11–16 (stating that the ARP form is not available in large print and that “we are not allowed to manipulate forms”).
It is undisputed that no staff are explicitly assigned to act as readers and scribes for visually impaired inmates. The RCI Inmate Handbooks and Department of Public Safety and Correctional Services and Department of Corrections Directives make no mention of any staff position or inmate assignment to provide these services, but the case management manual does specify that “case managers are to assist inmates as required or as requested.” (PSJ Ex. C, Campbell 30(b)(6) Dep. 122:2-8; E-94; Ex. G-102; Ex. D-124; Ex. I-3.) Former RCI Warden Gregg Hershberger and former Commissioner Dayena Corcoran described staff assistance to blind inmates as voluntary. (PSJ Ex. B, Corcoran Dep. 94:9–95:9; see Ex. N, Hershberger Dep. 88:3–9.)
Defendants assign sighted inmates as escorts, or “walkers,” for blind inmates to help them navigate the prison. (PSJ Ex. 49, The Department’s Supp. Answers Delano Interrog. No. 8 (Mar. 13, 2019)). Inmate escort is a “preferred” job, the criteria for which are that the inmate be housed at RCI and off disciplinary segregation a certain number of days. (PSJ Ex. E-94, at S BROWN 140–141; Ex. E, Reid 30(b)(6) Dep. 214:13–215:17.) Sex offenders were
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permitted to be walkers until 2018. (PSJ Ex. E, Reid 30(b)(6) Dep. 214:18–215:3; see Ex. E-5, at BROWN 3101–02; Ex. E-94, at S BROWN 140–41.) Defendants choose the inmates who serve as escorts without input from blind inmates. (PSJ Ex. K, Baker Dep. 147:20–148:3.) The former lieutenant for the housing unit containing the tier for blind inmates claimed to instruct his tier officers how to train walkers, and that the tier officers were tasked with training walkers. (Ex. A, Franklin Dep. 40:6–41:17.) Nevertheless, there is conflicting evidence of this topic: the former tier officer for the blind tier denied any such training existed (Ex. L, Conrad 20:4–6), as did Defendant’s designee (Ex. E, Reid Dep. 223:14–224:12), and a former walker (Ex. U, Willey Dep. 50:3–15).
It is disputed whether inmate walkers are responsible for reading and writing for blind inmates. Maureen Reid, one of the Defendants’ Rule 30(b)(6) designees,5 testified that reading and writing for blind inmates is part of walker duties. (PSJ Ex. E, Reid 30(b)(6) Dep. 194:2-7.) Other evidence suggests that this help was discretionary. (PSJ Ex. U, Willey Dep. 67:10-70:18) (testimony of former walker for Russell Hopkins indicating that reading and writing for blind inmates was in his discretion); (PSJ Ex. 24, Job Duties for Inmates Assigned as Walkers) (declaring that walkers “may assist” the visually impaired inmate with any written correspondence). There is no dispute that inmate walkers are not required to have a GED or high school diploma, are not tested on their ability to read and write for inmates, and are provided no training in being a reader or scribe. (PSJ Ex. E, Reid 30(b)(6) Dep. 215:18–216:21; Ex. E-94, at S BROWN 140–41.)
5 Pursuant to Rule 30(b)(6), private corporations, government agencies, and other entities must designate a person to testify on its behalf about information known or reasonably available to the organization.
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C. Work Assignments Kitchen (or “dietary” or “food service”) assignments allow inmates at RCI to earn 10 credits off their sentences (“diminution credits”) per month, which can significantly reduce the length of a sentence. (PSJ Ex. E, Reid 30(b)(6) Dep. 236:15–237:14.) Other jobs, such as sanitation and laundry, earn only 5 credits a month. (PSJ Ex. 64.) There is evidence that Defendants excluded Plaintiffs from kitchen jobs because they were concerned about the safety of blind inmates operating unsupervised in a prison kitchen. (Defs.’ Resp. Ex. 21; Ex. 22, Schenck Dep. 93:16-94:2; 129:17-130:2.) In 2016, Defendants created the “blind greeter” position within dietary, which is reserved for a blind inmate. (Id. at 117:18–118:13, 119:4– 120:4.) The blind greeter’s sole job is to greet correctional officers as they enter the officers’ dining room and request that the officers sign a clipboard. (Id.) After numerous requests from Mr. Delano and Mr. Hopkins to be reassigned to the kitchen, Defendants placed Delano in the blind greeter position on February 25, 2016, and Hopkins in the blind greeter job in July 2017. (PSJ Ex. 68; Ex. 65; Ex. AA-151, at R HOPKINS 332–42; Ex. AA-149, at W DELANO 65, DELANO 563, W DELANO 67–68, 74.)
D. Celling Arrangements Almost all Plaintiffs were placed in double-cells at some point during their incarcerations. Hammond was double-celled around March 2016 (PSJ Ex. 53; 54); Delano was double-celled for various periods beginning in October 2017, February 2018, and again in March 2018 (PSJ Ex. 8); Brown was briefly double-celled between December 2014 and January 2015 (PSJ Ex. 7); Wilson was double celled from September 20, 2015 to March 29, 2017 (PSJ Ex. 15); and Polley was double-celled for some period in 2016. (PSJ Ex. 62.) The
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Department’s own medical contractor had recommended the assignment of a single-cell to many of these placements, and plaintiffs have submitted evidence to show that these recommendations were not always followed.
III. Procedural History. On March 30, 2016, this Court received ten identical pleadings filed by an unknown
prisoner seeking appointment of counsel for nine visually impaired inmates. By Order of this Court, these cases were consolidated on April 4, 2016. (ECF No. 2.) The Order also granted the Plaintiffs’ Motion for appointment of counsel. On April 5, 2016 Damien Dorsey of the Prisoner Rights Information System of Maryland (“PRISM”) entered an appearance on behalf of the plaintiffs. (ECF No. 4.) Plaintiffs filed an Amended Complaint on September 7, 2016. (ECF No. 23.)
This Court granted Defendants numerous extensions of time to respond to the Amended Complaint. The deadline was extended to December 12, 2016 (ECF No. 30); to January 27, 2017 (ECF No. 32); to March 15, 2017 (ECF No. 34); to May 15, 2017 (ECF No. 37); to July 17, 2017 (ECF No. 39); to September 15, 2017 (ECF No. 41); to October 16, 2017 (ECF No. 44); and to December 15, 2017 (ECF No. 48). Defendants neither moved to dismiss the Complaint nor filed an Answer for over two years. Finally, on January 10, 2019, Defendants responded to the Complaint by moving to dismiss. (ECF No. 100.) This motion was filed in the midst of a tight discovery period set to end on March 1, 2019 and with trial set for April 22, 2019. In the Motion, Defendants asserted—for the first time in the history of this litigation—that they were immune to Plaintiffs’ ADA claims. The Defendants have still not filed an Answer to the Complaint.
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On March 18, 2019 Plaintiffs filed a Motion for Partial Summary Judgment seeking judgment on some of their claims brought pursuant to Title II of the ADA and Section 504 of the Rehabilitation Act (Counts III and IV). (ECF No. 172.) On March 19, 2019, Defendants filed a Motion for Summary Judgment, seeking Judgment on all of Plaintiffs’ claims. (ECF No. 178.)
In light of the Defendants’ Motion for Summary Judgment, Defendants’ Motion to Dismiss is DENIED AS MOOT. Many of the substantive arguments of the Motion to Dismiss are incorporated into Defendants’ Motion for Summary Judgment and are addressed herein. To the extent that Defendants contend that Plaintiffs’ Amended Complaint lacks sufficient factual allegations, such arguments are rejected.
STANDARD OF REVIEW Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A material fact is one that “might affect the outcome of the suit under the governing law.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A genuine issue over a material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. When considering a motion for summary judgment, a judge’s function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter for resolution at trial. Id. at 249. Trial courts in the Fourth Circuit have an “affirmative obligation . . . to prevent factually unsupported claims
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and defenses from proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993)).
In undertaking this inquiry, this Court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Libertarian Party of Va., 718 F.3d at 312; see also Scott v. Harris, 550 U.S. 372, 378 (2007). This Court “must not weigh evidence or make credibility determinations.” Foster v. University of Md.-Eastern Shore, 787 F.3d 243, 248 (4th Cir. 2015) (citing Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007)); see also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015) (explaining that the trial court may not make credibility determinations at the summary judgment stage). Indeed, it is the function of the fact-finder to resolve factual disputes, including issues of witness credibility. See Tolan v. Cotton, 572 U.S. 650, 656-59 (2014).
When both parties file motions for summary judgment, as here, this Court applies the same standard of review to both motions, considering “‘each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.’” Defenders of Wildlife v. North Carolina Dept. of Transp., 762 F.3d 374, 392 (4th Cir. 2014) (quoting Bacon v. City of Richmond, Va., 475 F.3d 633, 638 (4th Cir. 2007)). “[B]y the filing of a motion [for summary judgment,] a party concedes that no issue of fact exists under the theory he is advancing, but he does not thereby so concede that no issues remain in the event his adversary’s theory is adopted.” Brown v. Perez, 835 F.3d 1223, 1230 n.3 (10th Cir. 2016) (citation omitted); see also Sherwood v. Washington Post, 871 F.2d 1144, 1148 n.4 (D.C. Cir. 1989) (“[N]either party waives the right to a full trial on the merits by filing its own motion.”). “However, when cross-motions for summary judgment demonstrate a basic agreement
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concerning what legal theories and material facts are dispositive, they “‘may be probative of the non-existence of a factual dispute.” Syncrude Canada Ltd. v. Highland Consulting Group, Inc., 916 F. Supp. 2d 620 (D. Md. 2013) (quoting Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983)); Georgia State Conference of NAACP v. Fayette County Bd. of Comm’rs, 775 F.3d 1336, 1345 (11th Cir. 2015).
ANALYSIS I. Constitutional Claims Brought Pursuant to 42 U.S.C. § 1983 (Counts I and
II). In Counts I and II of the Amended Complaint, Plaintiffs assert constitutional violations under the auspices of 42 U.S.C. § 1983. Under 42 U.S.C. § 1983, “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person with the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .” § 1983. Section 1983 does not create “substantive rights”; rather, it provides “a method for vindicating federal rights elsewhere conferred.” Thompson v. Dorsey, ELH-10-1364, 2011 WL 2610704, at *3 (D. Md. June 30, 2011) (quoting Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807 (1994)). In Count I, Plaintiffs allege that they have been denied access to the courts in violation of the Fourteenth Amendment of the United States Constitution. In Count II, Plaintiffs complain that they have been subjected to serious harm and a substantial risk of serious harm in violation of the Eighth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment. Plaintiffs assert these claims against Defendants Corcoran, Miller, and Moyer in their individual and official capacities. They seek compensatory
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damages, punitive damages, and injunctive relief. Defendants move for Summary Judgment on these claims.
A. Individual and Official Capacity Claims. Plaintiffs advance Counts I and II against Corcoran, Miller, and Moyer in both their
individual (or personal) capacities and their official capacities. In Kentucky v. Graham, 473 U.S. 159, 105 S. Ct. 3099 (1985), the Supreme Court articulated the distinction between these two suits, explaining that “personal capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official capacity suits, in contrast, ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’” 473 U.S. at 165, 105 S. Ct. 3099 (1985) (citations omitted). By suing Corcoran, Miller, and Moyer in their official capacities, Plaintiffs seek to hold the Maryland Department of Public Safety and Correctional Services, and by extension the State of Maryland, liable for violations of Section 1983. See Clark v. Maryland Dep’t of Pub. Safety & Corr. Servs., 316 F. App’x 279, 282 (4th Cir. 2009) (“[T]he Maryland Department of Public Safety and Correctional Services in undoubtedly an arm of the state for purposes of § 1983.)
Section 1983 only authorizes suits against “person[s].” 42 U.S.C. § 1983. In Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304 (1989), the United States Supreme Court held that neither a State nor its officials acting in their official capacities are “persons” who are subject to suit for money damages under Section 1983. 491 U.S. at 71. Judge Hollander of this Court has recently aptly noted that “[i]ndeed, § 1983 claims are not cognizable against states, state agencies, or state agents acting in their official capacities.” Graham v. Cox, ELH-18-221, 2019 WL 1427860, at *10 (D. Md. March 29, 2019). Section
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1983 “creates no remedy against a state,” such that even a state’s express waiver of sovereign immunity cannot render it amenable to suit under Section 1983.6 Arizonans for Official English v. Arizona, 520 U.S. 43, 69, 117 S. Ct. 1055, 1070 (1997); see also Machete Prods., LLC v. Page, 809 F.3d 281, 288 (5th Cir. 2015) (explaining that state cannot be sued under § 1983 for monetary relief even if it waives its sovereign immunity). Accordingly, Plaintiffs may not pursue money damages against Corcoran, Miller and Moyer in their official capacities.
Plaintiffs may pursue injunctive relief against Defendants under Section 1983, however. In Will, the Supreme Court explained that “a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the state.’” 491 U.S. at 58, 71 n.10, 109 S. Ct. 2304 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S. Ct. 3099 (1985); see also Van Story v. Washington Cty. Health Dep’t, ELH-17-3590, 2018 WL 5830740, at *6 (D. Md. Nov. 7, 2018) (recognizing this “exception to the general law.”). While this case was pending, Robert L. Green became the Secretary of the Department of Public Safety and Correctional Services; therefore, Plaintiffs pursue injunctive relief against Green in his official capacity. See Fed. R. Civ. P. 25(d). In sum, the plaintiffs are pursuing § 1983 official capacity claims against Green for injunctive relief, and § 1983 individual capacity claims against Corcoran, Miller, and Moyer for monetary relief.
B. Defendants are entitled to Judgment on Plaintiffs’ access to courts claims. In Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491 (1977), the Supreme Court declared that
prisoners have a constitutionally protected right to access the courts. 430 U.S. at 821, 97 S.
6 For this reason, Defendants may waive their defense of sovereign immunity as to the ADA, see infra, but not as to Section 1983.
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Ct. 1491. To preserve this right, the Supreme Court directed prison authorities to “assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Id. at 829, 97 S. Ct. 1491. The Court subsequently clarified that Bounds did not establish a freestanding right to a law library or legal assistance. Lewis v. Casey, 518 U.S. 343, 350, 116 S. Ct. 2174 (1996). As this Court recently noted, Bounds does not grant prisoners the “wherewithal to transform themselves into litigating engines” pursuing any conceivable legal claim. Moise v. Howard Cty Det. Ctr., RDB-18-1355, 2019 WL 454101, at *5 (D. Md. Feb. 4, 2019) (quoting Lewis v. Casey, 518 U.S. 343, 355, 116 S. Ct. 2174 (1996)). Rather, prisoners’ constitutional rights are protected so long as they are afforded a “reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement.” Lewis, 518 U.S. at 355, 116 S. Ct. 2174 (citations omitted).
To prevail on access to courts claims, Plaintiffs must demonstrate that they have suffered an “actual injury” hindering their ability to bring legal challenges. O’Dell v. Netherland, 112 F.3d 773, 776 (4th Cir. 1997) (quoting Lewis, 518 U.S. at 356, 116 S. Ct. 2174). Because prisoners do not possess an “abstract, free-standing right to a law library or legal assistance,” this Court has previously held that they cannot prevail by identifying a “theoretical” defect in the prison’s library or legal assistance program. Pearson v. Simms, 345 F. Supp. 2d 515, 519 (D. Md. 2003) (quoting Lewis, 518 U.S. at 351, 116 S. Ct. 2174). Simply proving that “an institution’s library is inadequate or access to that library is restricted” will not suffice. Strickler v. Waters, 989 F.2d 1375, 1385 (4th Cir. 1993). Rather, Plaintiffs must demonstrate that their
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“nonfrivolous” legal claims have been “frustrated” or “impeded.” Lewis, 518 U.S. at 353, 116 S. Ct. 2174.
To establish liability under 42 U.S.C. § 1983, plaintiffs must show that the defendants “acted personally” to cause the alleged violation. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (citation omitted). Under Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994) supervisory liability may attach under § 1983 if a plaintiff can establish three elements: (1) the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) an “affirmative causal link” between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff. 13 F.3d at 799 (citations omitted). Plaintiffs may meet their “heavy burden of proof” to show that Defendants acted with deliberate indifference by “demonstrating a supervisor’s continued inaction in the face of documented widespread abuses.’” Shaw, 13 F.3d at 799 (quoting Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984). Plaintiffs cannot rely on “pointing to a single incident or isolated incidents.” Slakan, 737 F.2d at 373.
1. Plaintiffs have not adduced sufficient evidence to raise a genuine dispute of material fact as to Defendants’ liability.
Plaintiffs cannot show that Corcoran, Miller, and Moyer are liable for any purported denial of court access. In this case, nearly all the alleged incidents Plaintiffs invoke to support their access-to-courts claim occurred before the Defendants were on the job. Moyer became Secretary in 2015; Corcoran was Commissioner from 2016 until 2018; and Miller was the Warden at RCI from April 2015 until November 2017. No jury may conclude that these
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Defendants were “personally involved” in actions which took place before they had any supervisory authority over RCI. Instead, Plaintiffs are tasked with holding these Defendants liable for the very few purported constitutional violations occurring during their tenure.
Plaintiffs argue that Defendants “bur[ied] their heads in the sand” while overseeing RCI and ignored clear indications that Plaintiffs were being deprived of their access to the courts. Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015). For this proposition, they rely in part on Defendants’ “knowledge of the present lawsuit” and a civil Complaint Wilson filed in May 2016, alleging that he was “partially blind and crippled, and has no help from the Institution to access the law books.” (Pl.’s Resp. 37, ECF No. 182; Ex. 34, WILSON 403-11.) Plaintiffs do not cite authority holding that knowledge may be imputed from the allegations in a Complaint. Moreover, this Court is mindful that both the Amended Complaint in this suit and Wilson’s filing neglects to cite even a single specific instance in which Plaintiffs were denied access to the courts. Cf. Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir. 1985) (finding no supervisory liability despite police chief’s knowledge of complaints of police brutality). Defendants cannot be charged with the knowledge of constitutional violations merely because Plaintiffs filed lawsuits containing vague allegations. As Plaintiffs wholly rely on the existence of this lawsuit to impute knowledge to Secretary Moyer, he cannot be held liable for these claims.
Additionally, Plaintiffs cite a handful of purported red flags which they conclude put Defendants Corcoran and Miller on notice of their claims. They note that soon after Miller became the warden of RCI, Holley sent him a 2012 decision issued by the Inmate Grievance Office (“IGO”) which found that “RCI was not providing . . . library services for the sight
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impaired.” (Pl.’s Resp. Ex. 1, Miller Dep. 95:8-96:1, 157:5-158:5; PSJ Ex. I-17, at S HOLLEY 10.) Miller considered taking remedial action by purchasing Dragon transcription software, but ultimately did not see the purchase through before leaving RCI. (Pl.’s Resp. Ex. 1, 49:753:17.) In December 2017, Corcoran participated in discussions and a demonstration of auxiliary aids. (Pls.’ Resp. Ex. 13, Corcoran Dep. 63:1-64:6; Ex. 39, Stanford Dep. 14:6-15:10.) Defendants also cite ARPs filed in 2016 by Snead. In one ARP appeal, he complained that blind inmates could not obtain staff assistance with filing ARPs. (PSJ Ex. G-110, at SNEAD 1196-99, 1202-05, 1207-09.) In another, Snead claimed that he had sent several letters to the Warden complaining that his case manager would not arrange private telephone calls with his attorneys and that he could not communicate with them in writing, fearing that recruiting the help of other inmates to do so would jeopardize his attorney-client privilege. (Pls.’ Resp. Ex. 40, SNEAD 81-82.) Miller and Corcoran dismissed the first ARP appeal. Plaintiffs argue that a jury may infer that the latter was also brought to their attention based on the deposition testimony of a corporate designee, Maureen Reid, who indicated that staff members would know to advance disability-related requests to their supervisors. (PSJ Ex. E, Reid 30(b)(6) Dep. 85:18-21.)
One IGO finding and two ARPs submitted over the course of two years are not sufficient to infer that Miller and Corcoran had actual knowledge that their subordinates were placing plaintiffs in a pervasive and unreasonable risk of constitutional injury. This evidence falls far short of the “longstanding, pervasive, well-documented, or expressly noted” rights violations contemplated by the Fourth Circuit. Furthermore, neither the IGO nor the ARPs cited by Plaintiffs conclude or allege that blind inmates were unable to file lawsuits. Cf. Hall v.
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Stouffer, 2018 WL 4599646, at *14-15 (finding genuine dispute of fact as to supervisory liability where plaintiff wrote correspondence to Defendant complaining that he was being “totally deprived” of his access to the courts and had no relevant legal materials and legal assistance at his disposal). At best, Miller and Corcoran knew that the library lacked certain auxiliary aids and that one inmate, Snead, complained of trouble pursuing grievances and consulting with his attorney. There is no evidence that Miller and Corcoran buried their heads in the sand while plaintiffs were shut out of court. Accordingly, Defendants Corcoran, Miller, and Moyer may not be held liable. They are entitled to Judgment as a matter of law.
2. Plaintiffs have not adduced evidence of actual injuries. Even if Defendants could be held liable, they would be entitled to Judgment in their favor because there is no evidence that Plaintiffs suffered an actual injury. To adequately demonstrate an “actual injury” for purposes of summary judgment, plaintiffs must show that the underlying claim is “nonfrivolous,” that is, at least “arguable” and based on “more than hope.” Christopher v. Harbury, 536 U.S. 403, 416, 122 S. Ct. 2179 (2002). To meet this burden Plaintiffs must at least identify the nature of the underlying claim and produce competent evidence of its existence. See James v. Cotter, CV9:14-4518-TLW-BM, 2017 WL 7054157, at *6 (D.S.C. Sept. 19, 2017), report and recommendation adopted, 9:14-CV-4518-TLW, 2018 WL 573157 (D.S.C. Jan. 26, 2018) (granting summary judgment because plaintiff failed to adduce docketing information or any probative evidence to show that he was prejudiced by the loss of legal papers). Wilson, Holley, Hammond, and Polley have conceded that they cannot identify a single instance in which they were denied access to the courts. In response to an interrogatory asking
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them to “identify each occasion on which you claim that because of your blindness you were denied access to court,” these plaintiffs either admitted that their claims were baseless or did not answer the question. Wilson answered that he made “no such allegations” at the time. (DSJ Ex. 17, Wilson Supp. Answers to Interrog. No. 7.) Holley complained that he lacked accommodations “allowing him to perform his own legal research” but that “[h]e was able to retain an attorney.” (DSJ Ex. 18, Holley Supp. Answers to Interrog. No. 7) Hammond explained that he paid another inmate to assist him with motions for post-conviction relief and that he “prevailed in his request for relief.” (DSJ Ex. 19, Hammond Supp. Answers to Interrog. No. 7.) Polley answered that, aside from being able to use an accessible computer at the library to conduct his own legal research, he “was not otherwise denied access to court.” (DSJ Ex. 20, Polley Supp. Answers to Interrog. No. 7) The evidence does not otherwise suggest that these four plaintiffs were impeded from bringing legal challenges.
Other Plaintiffs responded to this interrogatory with numerous claims falling outside of the relevant statutory period. “The statute of limitations for § 1983 claims is borrowed from the applicable state’s statute of limitations for personal-injury actions, even when a plaintiff’s particular § 1983 claim does not involve personal injury.” Tommy Davis Const., Inc. v. Cape Fear Pub. Util. Auth., 807 F.3d 62, 66-67 (4th Cir. 2015) (citing Wilson v. Garcia, 471 U.S. 261, 275-80 (1985)). In Maryland, the applicable statute of limitations is three years from the date of the occurrence giving rise to the cause of action. See Md. Cts & Jud. Proc. Code Ann. § 5-101. Accordingly, Plaintiffs have properly conceded that they cannot seek damages arising from (1) Delano’s claimed difficulties in 2007 and 2008 to modify or reduce his sentence; (2) Snead’s claim that he missed deadlines related to a federal habeas petition and post-conviction
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appeal in 2002; and (3) Brown’s missed filing deadlines for his appeal in 2008 and his purported inability to obtain legal assistance to seek collateral review in 2009. (Pls.’ Resp. 27, ECF No. 182.)
Finally, the remaining Plaintiffs base their claims upon vague assertions of missed deadlines and unfiled papers, but do not explain why their underlying claims had any merit or present evidence to support them. See, e.g., DSJ Ex. 22, Hopkins Supp. Answers to Interrog. No. 7 (Claiming that he was ““denied access to the courts because of his blindness in or around late 2016 or early 2017, when he could not find any inmates whom he trusted to assist him to file a motion with the Maryland district court in Towson to have his sentence reduced.”)
Plaintiffs argue that “injury may be presumed where a total denial of access to a law library or legal assistance is alleged.” Strickler v. Waters, 989 F.2d 1375, 1385 n.16 (4th Cir. 1993) (collecting cases); see also DeMallory v. Cullen, 855 F.2d 442, 449 (7th Cir. 1988); Harris v. Young, 718 F.2d 620, 622 (4th Cir. 1983). These cases pre-date the actual injury requirement articulated in Lewis, decided in 1996, and this Court has properly characterized the relevant quotation from Strickler as “dicta.” Hall v. Stouffer, GLR-15-1008, 2018 WL 4599646, at *14 (D. Md. Sept. 25, 2018). This case does not resemble the extreme deprivations at issue in Hall, on which plaintiffs pin their hopes. 2018 WL 4599646 (D. Md. Sept. 25, 2018) (presuming prejudice in light of evidence that Plaintiff, sentenced in Maryland but incarcerated in Virginia, had no access to any Maryland legal materials or legal assistance).
The record reveals that Plaintiffs do not suffer from a “total denial of access” to the courts. The very fact that they have been able to challenge the conditions of their confinement from within RCI reveals that they have access to the court system while confined in this
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institution. See Robles v. Kane, 550 F. App’x 784, 787 (11th Cir. 2013) (“[T]he fact that Robles’ complaints are now before this Court is proof that the Facility did not interfere with his freedom to invoke the judicial process.”); Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009) (rejecting access-to-courts claims after noting that plaintiff was “currently exercising his right to petition the government for redress of grievances through this lawsuit.”); Hornsby v. Jones, 188 F. App’x 684, 690 (10th Cir. 2006) (rejecting plaintiff’s claim that failure to provide adequate legal materials amounted to a violation of his constitutional rights because he was able to invoke the judicial process while incarcerated); Romansky v. Stickman, 147 F. App’x 310, 312 (3d Cir. 2005) (“Romansky’s access to the District Court satisfies his right to petition the government.”). Additionally, there is substantial evidence in the record of Plaintiffs filing claims and consulting with attorneys. For example, Brown received legal assistance from Karen Polic, a lawyer from the Collateral Review Division of the public defender’s office, to assist his efforts to enter the “8-505” drug program and to successfully pursue a significant reduction in the length of his sentence. (DSJ Ex. 28, Brown’s Answers Interrog No. 7.)
As Plaintiffs have failed to raise evidence of actual injury and this Court cannot presume that they suffered one, there is no genuine issue of material fact to present to a jury.
3. The right to access the courts does not encompass filing grievances and obtaining a divorce.
Unable to produce competent evidence that Defendants have stymied their efforts to challenge their sentences or conditions of confinement, Plaintiffs argue that their troubles obtaining access to RCI’s grievance procedures deprives them of their constitutional right to access the courts. The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, requires prisoners to exhaust their administrative remedies before pursuing claims in Court. § 1997e(a).
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Accordingly, Plaintiffs argue, their denial of access to ARP proceedings prevents them from filing court complaints. To support this claim, Plaintiffs have produced evidence that the ARP process at RCI requires the use of a print form that is not available in large print or any other accessible format. (PSJ Ex. E, Reid 30(b)(6) Dep. 201:11-16; PSJ Ex. Q, Smart Dep. 132:68.) Appeals of ARP forms, made through the Inmate Grievance Office (“IGO”), must also be submitted through standard print forms. (PSJ Ex. C, Campbell 30(b)(6) Dep. 128:1-21.) There is evidence that Plaintiffs were unable to file grievances or faced difficulties finding assistance to file them.
This argument fails because the constitution does not confer a right “to participate in grievance proceedings.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); see also Booker v. South Carolina Dep’t of Corr., 855 F.3d 533, 541 (4th Cir. 2017) (“[I]nmates have no constitutional entitlement or due process interest in access to a grievance procedure.”). The plaintiffs purported exclusion from the grievance process does not give rise to a constitutional claim. Moreover, Plaintiffs’ alleged inability to access inmate grievance procedures would not foreclose their access to the courts. As the Supreme Court explained in Ross v. Blake, 136 S. Ct. 1850, 1858 (2016), an inmate need only “exhaust available remedies, but need not exhaust unavailable ones.” (quoting §1997e(a)). Accordingly, Plaintiffs need only pursue administrative proceedings which are “capable of use.” Id. Under the PLRA, Plaintiffs may forego ordinary exhaustion requirements by demonstrating that they were unable to read the print-only grievance materials or that they otherwise had no ability to use the grievance procedures. Accordingly, even assuming that Defendants deprived Plaintiffs of access to
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grievance procedures, this deprivation did not foreclose their access to the courts and does not amount to a constitutional violation.
Finally, prisoners’ constitutional right of access to the courts does not encompass James’s claim that he was unable to obtain a divorce, resulting in his “remain[ing] legally married against his wishes.” (DSJ Ex. 21, Pls.’ Ans. Defs.’ Interrog. No. 7.) In Lewis, the Supreme Court clearly specified that prison officials must make available to prisoners the tools necessary to “attack their sentences, directly or collaterally, and . . . to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” 518 U.S. at 356, 135 S. Ct. 2174. This limiting language clearly proscribes claims based on plaintiffs’ pursuit of legal matters which do not touch upon the prisoners’ confinement, including claims arising from the inability to prosecute divorce proceedings. See, e.g., Wagner v. Gober, No. 4:15-CV1789 CAS, 2017 WL 2984841, at *4 (E.D. Mo. July 13, 2017) (“Numerous cases have held that the constitutional right of access to the courts does not extend to litigation involving divorce cases.”) (collecting cases).
As the Sixth and Seventh Circuits have recognized, another line of Supreme Court cases holds that the First Amendment “includes the right to file other civil actions in court that have a reasonable basis in law or fact.” Snyder v. Nolen, 380 F.3d 279, 290 (7th Cir. 2004) (collecting cases); John L. v. Adams, 969 F.2d 228 (6th Cir. 1992). Harmonizing these authorities with Lewis, the Sixth and Seventh Circuits have concluded that in civil actions unrelated to their incarceration, prisoners enjoy a First Amendment right to petition the courts free from state-imposed “barriers” or “undue interference.” Snyder, 380 F.3d at 291; John L.,
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969 F.2d at 235. Accepting this persuasive authority, the record reveals that James does not have a claim. He does not maintain that his divorce was stymied by an affirmative action taken by the Defendants; rather, it is their failure to provide him with auxiliary aids and services which he finds constitutionally infirm. No binding precedent compels this Court to accept this theory, and the language in Lewis expressly forecloses such a claim. Accordingly, Summary Judgment IS ENTERED in favor of Defendants on James’ denial-of-access claims.
C. Eighth Amendment Violations (Count II) In Count II, Plaintiffs accuse Defendants Corcoran, Miller, and Moyer of subjecting
them to cruel and unusual punishment in violation of the Eighth Amendment. Plaintiffs claim that Defendants’ decision to place them in a cell with another inmate (a practice the parties refer to as “double-celling”) without considering their blindness constitutes cruel and unusual punishment. (Am. Compl. ¶ 92, ECF No. 23.) Plaintiffs additionally claim that the Defendants failure to “reasonably modify their policies or procedures” or “to supply auxiliary aids or services” forced them to rely on other inmates for assistance, placing them at risk of abuse and extortion by other inmates. (Am. Compl. ¶¶ 92-93, ECF No. 23.) Defendants move for Summary Judgment on these claims.
The Eighth Amendment charges prison officials with “certain basic duties.” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016). To fulfill their Eighth Amendment obligations, officials must ensure “humane conditions of confinement” and implement “reasonable measures to guarantee the safety of the inmates.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970 (1994). Because “being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society,” prison officials “have
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‘a duty to protect prisoners from violence at the hands of other prisoners.’” Id. (quoting Farmer, 511 U.S. at 832, 834). “[N]ot every injury suffered by a prisoner at the hands of another translates into constitutional liability for prison officials responsible for the victim’s safety,” however. Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (quoting Farmer, 511 U.S. at 834, 114 S. Ct. 1970). For liability to attach, plaintiffs must satisfy a two-part test containing objective and subjective elements. Makdessi, 789 F.3d at 133.
Objectively, the prisoner “must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury” or the substantial risk thereof. Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014). To establish liability arising from a failure to protect claim, the plaintiff must demonstrate that he was “incarcerated under conditions posing a substantial risk of serious harm.” Makdessi, 789 F.3d at 133. The risk must be of such a kind that society deems it “so grave that it violates contemporary standards of decency.” Raynor, 817 F.3d at 127 (quoting Helling v. McKinney, 509 U.S. 25, 36, 113 S. Ct. 2475 (1993)).
The plaintiff need not always adduce evidence that he suffered an extreme physical injury—evidence which tends to establish a “substantial risk” of one may suffice. For example, prison conditions may be so vile and pestilence plagued that injury is almost certain to manifest. An inmate enduring such conditions need not await his near-certain assault or sickness before filing suit. See Helling v. McKinney, 509 U.S. 25, 33-34, 113 S. Ct. 2475 (1993) (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing yet had happened to them.”); Webb v. Deboo, 423 F. App’x 299, 300 (4th Cir. 2011) (finding allegation that “severe overcrowding was causing unsanitary conditions, the spread of disease, an increased risk of
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violence, and lack of access to medical care” was sufficient to survive a motion to dismiss despite plaintiff’s failure to allege that he suffered any physical ailments arising from these conditions). A plaintiff may also survive summary judgment by demonstrating that he suffered a minor injury, so long as it evidences a grave risk of more serious harm. Thomas v. Younce, 604 F. App’x 325, 326 (4th Cir. 2015) (holding that plaintiff’s knee injury, resulting from his fall down a flight of stairs, constituted evidence that plaintiff faced a substantial risk of more serious injury). Moreover, a plaintiff may aid his case by demonstrating that certain facts peculiar to him elevated his risk of serious harm to an excessive degree. See Makdessi, 789 F.3d at 134 (“[I]t does not matter whether . . . a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.” (quoting Farmer, 511 U.S. at 834, 114 S. Ct. 1970)).
The subjective component requires an inmate to demonstrate “that the prison official had a ‘sufficiently culpable state of mind,’ which . . . consists of ‘deliberate indifference to inmate health or safety.’” Raynor, 817 F.3d at 127 (quoting Farmer, 511 U.S. at 834, 114 S. Ct. 1970). The plaintiff must prove that the official had actual knowledge of an excessive risk of serious harm, or that she was aware of facts from which she could draw the inference that a substantial risk of serious harm existed, and in fact did draw that inference. Farmer, 511 U.S. at 837, 114 S. Ct. 1970. This knowledge may be proved “in the usual ways, including inference from circumstantial evidence.” Raynor, 817 F.3d at 128 (citation omitted).
1. Double-Celling Double-celling inmates is not per se unconstitutional. Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392 (1981) (holding that district court’s factual findings cut against its conclusion
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that double-celling amounted to cruel and unusual punishment); Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991) (“It is clear that double or triple celling of inmates is not per se unconstitutional.”) Inmates may nonetheless challenge their celling arrangement by contending that it puts them at a unique risk of serious harm, and that Defendants were deliberately indifferent to this special risk. See Thomas, 604 F. App’x at 326 (holding that prisoner could pursue an Eighth Amendment claim based on his twice refused request for a medically necessary special bunk assignment); cf. Williams v. Bishop, RWT-12-1616, 2014 WL 4662427, at *6 (D. Md. Sept. 17, 2014) (dismissing plaintiff’s claim that he was entitled to a single cell because he relied only on his “belief that his medical conditions cause difficulties with cellmates” for support).
To withstand Summary Judgment, Plaintiffs must present evidence raising a genuine dispute of material fact concerning whether Defendants possessed a “sufficiently culpable state of mind,” i.e., that they were deliberately indifferent to the inmate’s health and safety. Makdessi, 789 F.3d at 133. The Defendants must have “subjectively recognized” both that a “substantial risk of harm existed” and that their actions were “inappropriate in light of that risk.” Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (citing Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997)). Plaintiffs may satisfy this burden by submitting evidence warranting the conclusion that the risk of injury was “so obvious that . . . the officer did know if it because he could not have failed to know of it.” Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995). Alternatively, the Plaintiff may also show “that a substantial risk of [serious harm] was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had
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been exposed to information concerning the risk and thus must have known about it . . . .” Parrish, 372 F.3d at 303 (quoting Farmer, 511 U.S. at 842, 114 S. Ct. 1970 (1994)).
To show that Warden Miller knew that double-celling posed a substantial risk of serious injury, Plaintiffs rely primarily on two emails sent to Miller from Todd Faith and Lieutenant Michael Franklin. (PSJ Ex. 76.) On February 9, 2016 Franklin asked Miller with assistance housing blind inmates, complaining that RCI only had “9 cells that were designated to house them and we currently have 16 visually impaired inmates in the unit . . . .” (Id.) Later that day, Todd Faith forwarded an email to Miller which he had previously sent to Lt. Necole Haggie. In that email, Faith stated that “I believe we are going in a unsafe direction with ADA and [Prison Rape Elimination Act “PREA”] laws if [double-celling blind inmates] isn’t corrected soon.” (Id.) In response, Miller admitted that “assigning a cell partner to a blind inmate could prove counterproductive,” and stated that “the level of cooperation in the cell between inmates, one of which is blind, will have to offer a higher degree of respect and higher levels of compromise.” (Id.) It is not possible for a jury to infer that Miller was aware of a substantial risk of serious injury facing blind inmates based on his comments in this email exchange. The exchange does not reveal that Miller was personally aware of any real incidents of misconduct involving double-celled blind inmates (neither Lt. Franklin nor Lt. Haggie reported anything of the sort) and Miller’s mild concern that double-celling blind inmates could be “counterproductive” does not suggest that he believed blind inmates were in any real danger. Nor should he have been; as discussed below, the record in fact reveals that serious altercations between blind inmates and their cellmates were few and far between.
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Plaintiffs would offer even less evidence for the jury to conclude that Corcoran possessed the requisite knowledge. Citing to her deposition, Plaintiffs complain that Corcoran ordered double-celling of blind inmates without making individualized inquiries into the risks associated with this arrangement. (Pl.’s Resp. Ex. 13, Corcoran Dep. 214:2-217:5.) The deposition testimony cited, however, does not indicate that Corcoran ordered double-celling. Citing to the exact same email exchange referenced in the preceding paragraph as well as deposition testimony from Denise A. Gelsinger, Plaintiffs baldly claim that “DOC never responded” to RCI officials’ requests to single-cell blind inmates. To be clear, Corcoran was not copied on the emails by Franklin and Faith, and there is no evidence that she was aware of any instances of harm inflicted on blind inmates as a result of their double-celling. Because there is not a whiff of evidence that Corcoran had any knowledge of the supposed risk that Plaintiffs complain of, she cannot be held liable.
Plaintiffs come close to acknowledging that they cannot impose liability on Moyer. Instead, they claim that “Plaintiffs’ lawsuit put him on notice of [the double-celling] issue as of at least March 2016.” (Pls.’ Resp. 36, ECF No. 182.) Plaintiffs also fault him for failing to issue policies or guidance to prevent blind inmates from being inappropriately double-celled. (Id.) As the record is devoid of any evidence establishing that Moyer had actual knowledge (as opposed to constructive knowledge imputed by the Plaintiffs’ filing of a civil action), he cannot be held liable for the offenses about which Plaintiffs complain.
Plaintiffs have also failed to put forth sufficient evidence to suggest that their periodic placement in double-cells put them at a substantial risk of harm or that they were “particularly vulnerable to abuse from their cellmates.” (Pl.’s Resp. 12, ECF No. 182.) They admit that
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Holley and Snead never had a cellmate and that James was not double-celled at RCI. Accordingly, these two cannot submit to the jury any constitutional claim arising from doublecelling. As discussed in greater detail below, two of the remaining Plaintiffs suffered absolutely no injuries at the hands of cellmates. Another Plaintiff complains only that his cellmates were able to steal from him. Four Plaintiffs complain that they were involved in isolated altercations with a cellmate, and three of these did not suffered physical injuries. The evidence is not such as would permit a jury to find that a risk was substantial or that they faced potentially serious injury. Putting it simply: if double-celling were unconstitutional in this case, where there is only evidence of the rare altercation resulting in little or no harm, then double-celling would be unconstitutional in all cases.
There is no evidence that either James, Brown or Hopkins suffered serious injuries because of their double-celling. Brown testified that he was briefly double-celled for a few months in 2013 but was otherwise single-celled in accordance with a medical order. (Def.’s Reply Ex. 2, Brown Dep. 25:11-26:7, 28:12-14.) There is no evidence that any harm, even de minimis harm, came to Brown because he was double-celled. When James was first arrested in 2013, he was briefly double-celled at the Department’s Maryland Reception, Diagnostic and Classification Center (“MRDCC”), where inmates stole from him. (DSJ Ex. 6, James Dep. 117:12-20.) Hopkins also represented that cellmates stole from him, and during his deposition he testified that cellmates “went in my commissary, stuff like that.” (PSJ Ex. 3, Hopkins Interrog. No. 2, ¶ 2; DSJ Ex. 5, Hopkins Dep. 117:13-118:1.) There is no evidence that Brown, James or Hopkins suffered any physical injuries at the hands of cellmates, and the mere theft of property cannot amount to a constitutional violation. See Hunter v. Sherman, 49 F. App’x
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611 (6th Cir. 2002) (holding that the deliberate indifference to the security of his property is not cognizable under the Eighth Amendment); Wa-Gino v. Arizona Dep’t of Corrs., 94 F.3d 654 (9th Cir. 1996) (same). Accordingly, neither Brown, James or Hopkins can claim that their double-celling amounted to a constitutional deprivation; nor can they show that Defendants were deliberately indifferent to a substantial risk of harm arising from their placement in double-cells.
While two of the Plaintiffs complain of altercations with other cellmates, neither suffered injuries which would suggest that they were in serious danger. One testified that his cellmate poked his forehead, so he threw a punch. (DSJ Ex. 7, 17:15-19:19.) The poke did not harm him, and the two did not fight again. (Id. at 20:6-11, 40:11-41:12.) Another testified that “a couple times” a cellmate “physically grabbed [him] on [his] chest” and that he was assaulted on other occasions but did not report these assaults. (DSJ Ex. 9 23:7-25:4, 26:927:11.) It is undisputed that the chest-grabbing incident did not result in any physical injuries and there are no details concerning the other incidents of assault. There is no evidence that either Plantiff experienced anything beyond the ordinary jailhouse scuffle in which nearly every inmate is involved, unfortunately, at some point or another. There is certainly no evidence that Defendants were aware of, but disregarded, any substantial risk of serious harm faced by these inmates.
Another Plaintiff, while double-celled with several inmates over time, was only ever attacked by one. (DSJ Ex. 3, 16:8-12, 17:21-19:10, 21:12-17, 67:17-68:10.) Angered that he had lost his preferred job as an inmate escort, the cellmate punched, slapped, and choked the Plaintiff over a period of three weeks, causing bruising on his stomach, chest, ribs, and arms.
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(Id. at 18:11-18.) Prison officials relocated the cellmate about two weeks after he reported the incidents. (Id. at 20:3-8.) His second cellmate did not injure him. (Id. at 69:14-15; 72:11-12; 74:20-75:5.) As prison officials separated this inmate from his attacker soon after the altercation, and his continued double-celling was without incident, it cannot be said that Defendants disregarded a substantial risk of harm facing him.
Finally, one Plaintiff claims that he “got into three arguments” with his cellmate when he was double celled for approximately one month in December 2014 or the beginning of 2015. (Pl.’s Resp. Ex. 2, Ans. Interrog. No. 4 ¶ 4.) Arguments do not amount to cruel and unusual punishment. He also claims, however, that in or around 2011, his cellmate attempted to rape him while he was sleeping. (Id.; DSJ Ex. 2, 56:3-7, 56:17-57:2.) Plaintiffs acknowledge that this event falls outside of the statutory period, but maintain that it is relevant to show that he faced a substantial risk of serious harm while double-celled. This single incident cannot give rise to the inference that he faced a substantial risk of serious injury in any future doublecelling arrangement with other cellmates. The cellmate posed no threat to him after his transfer from ECI. There is no indication that the Defendants knew of this Plaintiff’s encounter with his cellmate, an event which occurred at a different prison, and before they were hired to oversee RCI. Even if they were aware of this single incident, the mere fact that he faced danger at the hands of one cellmate in the past does not suggest that any doublecelling arrangement placed him in substantial risk of serious injury from other cellmates.
Plaintiffs’ evidence cannot demonstrate that they were in a worse a position than the scores of other inmates currently housed in double-cells today. Of the nine Plaintiffs before this Court, only three complain of physical altercations with fellow inmates, and no such
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altercation within the limitations period resulted in serious injury. With so little evidence of serious injury suffered by any of these nine Plaintiffs despite a voluminous factual record probing several years of incarceration, there can be no genuine issue of material fact concerning whether these Plaintiffs faced a “substantial” risk of injury or whether Defendants were deliberately indifferent to such risk.
In sum, the record contains insufficient evidence to establish that Plaintiffs faced a special, magnified risk of harm resulting from double-celling and, critically, that the Defendants they have chosen to sue apprehended such risk. To permit Plaintiffs to submit such a flimsy record to the jury invites liability for any double-celling arrangement. Such holding would counsel prison officials to house blind inmates in single-cells no matter the circumstances, thereby depriving inmates from a potentially valuable cellmate relationship simply because they are blind. This is simply not constitutionally mandated. Accordingly, Summary Judgment IS ENTERED in favor of Defendants on Plaintiffs’ claim that their double-celling violated the Constitution.
2. Dependence on Other Inmates. Plaintiffs cannot establish that their dependence on other inmates for reading and writing and navigating prison facilities created a significant risk of serious injury. Once again, there is no evidence that any of the named Defendants were privy to the substantial risk Plaintiffs allege. While Miller acknowledged, in the abstract, that putting inmates under the control of others “could create violence, extortion” (PSJ Ex. 1, Miller Dep. 64:4-21, 66:5-17), this nebulous assertion is far from an admission that Miller understood plaintiffs to be in the control of others or that he thought that any particular plaintiff was in serious danger.
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Moreover, there is unrefuted testimony that Miller had reviewed RCI’s provision of assistive devices to the visually impaired and that he believed these services were adequate. (Pls.’ Resp. Ex. 1, Miller Dep. 96:3-10.)
To foist liability upon Corcoran, Plaintiffs pursue a similar tack. They note that Corcoran answered in the affirmative when asked whether guidance in the Inmate Handbook was “in tension” with the proposition that inmates are not able “to choose who they rely on to read or write or travel or to help them.” (Corcoran Dep. 219:13-220:8.) Plaintiffs also claim, based on a fair reading of deposition testimony, that Corcoran “understood that having one inmate supervise, direct, or control another inmate could lead to conflict, violence and extortion.” (Id. at 104:3-13.) Plaintiffs assert that these abstract assertions, coupled with Corcoran’s general knowledge of the walker program and blind inmates’ reliance on other inmates for reading and writing, provide sufficient evidence for a jury to conclude that she was deliberately indifferent to a substantial risk of serious injury. These snippets of deposition testimony are plainly insufficient to raise a genuine dispute of material fact on this record, which is utterly devoid of any evidence that Corcoran was aware that a single Plaintiff was in peril. At best, Plaintiffs’ evidence could support the conclusion that Corcoran was aware of some risk to the general body of blind inmates, but there is no evidence that Corcoran believed this risk to be especially pronounced or that these Plaintiffs faced a higher degree of danger than the average inmate, confined at any institution.
Finally, and once again, Plaintiffs cannot establish that Moyer—sitting at the highest reaches of the Department—had any awareness of a substantial risk of injury facing a miniscule subset of the prison population he oversaw. Plaintiffs even acknowledge that Moyer
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believed that, at RCI, Plaintiffs had access to “equipment . . . to assist them.” (Moyer Dep. 83:19-84:1.) There is simply no evidence that Moyer possessed the requisite mens rea to hold him liable for a constitutional violation.
Plaintiffs have additionally failed to produce evidence that abuse at the hands of a walker or other inmate assistants was “widespread.” For many of the Plaintiffs, there is not a shred of evidence that their visual impairments rendered them predisposed to assault from other inmates. Brown did not complain that the inmate escorts he relied upon caused him harm (Brown Dep. 42:5-44:6). While James claimed that he was grabbed by a walker and kicked by another, both of these walkers were replaced soon after he requested new ones and he suffered no injuries from these incidents (James Dep. 75:21-79:22, 106:7-9, 121:16-124:19.) The only injury Polley sustained at RCI occurred when he bumped his head, for which he was provided Motrin and an ice pack. (Polley Dep. 38:14-40:10). Aside from isolated incidents involving cellmates, neither Wilson nor Hammond were ever assaulted or injured by any other inmates. (Wilson Dep. 23:7-25:4, 26:9-27:11; Hammond Dep. 69:14-15, 72:11-12, 74:20-75:5.)
Plaintiffs have failed to establish that all but a few of their number suffered any injuries based on their reliance on others for various forms of assistance. There is no evidence that the individual Defendants were aware of the scattered incidents of violence affecting these Plaintiffs. Without such evidence, Plaintiffs cannot submit this claim to a jury. Accordingly, Summary Judgment IS ENTERED in favor of Defendants on Plaintiffs’ claim that their general reliance on other inmates resulted in constitutional violations.
D. Defendants are entitled to qualified immunity.
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Defendants assert qualified immunity as a defense to Plaintiff’s constitutional claims. “To establish a qualified immunity defense, a public official must demonstrate that (1) a plaintiff has not alleged or shown facts that make out a violation of a constitutional right, or that (2) the right at issue was not clearly established at the time of its alleged violation.” Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 395-96 (4th Cir. 2014) (internal quotations omitted). In this case, Plaintiffs have failed to adduce sufficient evidence to support their constitutional claims. There is no evidence that they were unable to pursue a specific, nonfrivolous legal claim in violation of their right to access the courts. As to their cruel and unusual punishment claims, there is no evidence that Defendants were deliberately indifferent to a substantial risk of harm facing the Plaintiffs. Deliberate indifference is a critical element of a failure to protect claim; it is not merely a means of attributing liability to a Defendant. See Farmer v. Brennan, 511 U.S. 825, 835, 114 S. Ct. 1970 (1994) (explaining that the “deliberate indifference” requirement ‘follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’” (quoting Wilson, 501 U.S. 294, 297, 111 S. Ct. 2321 (1991))). Having failed to meet their evidentiary burden on this element, Plaintiffs cannot establish an Eighth Amendment violation. Furthermore, because plaintiffs have identified only scattered incidents of ill-documented injuries, and some plaintiffs suffered no serious injuries whatsoever, they have failed to raise a genuine dispute of material fact as to their constitutional violations. As “the relevant facts do not make out a constitutional violation at all,” Defendants are entitled to qualified immunity. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808 (2009). Accordingly, Summary Judgment IS ENTERED in favor of Defendants on Counts I and II.
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II. Violations of the ADA and the Rehabilitation Act. Plaintiffs have moved for partial Summary Judgment on their Americans with
Disabilities Act claims (Count III) and claims under Section 504 of the Rehabilitation Act (Count IV). Both Title II of the ADA and Section 504 prohibit discrimination against people with disabilities. Title II of the ADA states that “no qualified individual with a disability shall by reason of such disability be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, Section 504 provides that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794.
These claims “can be combined for analytical purposes because the analysis is substantially the same.” Seremeth v. Bd. of Cty. Comm’rs Frederick Cty., 673 F.3d 333, 336 n.1 (4th Cir. 2012) (quotations and citations omitted). Both statutes “share the same definitions of disability.” Rogers v. Dep’t of Health & Environmental Control, 174 F.3d 431, 433 (4th Cir. 1999). Title II of the ADA explicitly provides that “[t]he remedies, procedures, and rights” provided under § 504 of the Rehabilitation Act “shall be the remedies, procedures and rights [that Title II of the ADA] provides to any person alleging discrimination on the basis of disability . . . .” 42 U.S.C. § 12133. Although the statutes have some important differences, including a different “causative link between discrimination and the adverse action,” Baird ex rel. Baird v. Rose, 192 F.3d 462, 469 (4th Cir. 1999), these distinctions are not at issue in this case.
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To prevail under Title II of the ADA or Section 504 of the Rehabilitation Act, “a plaintiff must show that [he] was excluded from participation in, or denied the benefits of, a program or service offered by a public entity, or subjected to discrimination by that entity.” Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005). Claims under Section 504 and Title II may be pursued under three distinct grounds: “(1) intentional discrimination or disparate treatment; (2) disparate impact; and (3) failure to make reasonable accommodations.” A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356, 362 (4th Cir. 2008). In this case, Plaintiffs allege that Defendants subjected them to disparate treatment and failed to make reasonable modifications to their prison services.7
A. Proper Defendants. The Amended Complaint asserts Counts III and IV against both the Department and
Moyer, the former of Secretary of the Department, who is sued in his individual capacity, and Defendant Robert L. Green, the new Secretary of the Department, who is sued in his official capacity. (Am. Compl. ¶ 23.) Neither Title II of the ADA nor Section 504 of the Rehabilitation Act permit individual capacity suits. Barnes v. Young, 565 F. App’x 272 (4th Cir. 2014) (“Title II of the ADA does not provide for individual capacity suits against state officials.”) (internal quotation marks and citations omitted); Badillo v. Thorpe, 158 F. App’x 208, 211 (11th Cir. 2005) (“[T]here is no individual capacity liability under Title II of the ADA or
7 Defendants would additionally require Plaintiffs to prove “actual injury,” separate and apart from a violation of the ADA or the Rehabilitation Act, to prevail on their claims. See Levy v. Mote, 104 F. Supp. 2d 538, 541–44 (D. Md. 2000) (“The mere violation of the ADA does not alone establish injury.”) More recently, this Court has expressed uncertainty about whether plaintiffs must show that they suffered an “actual injury” distinct from enduring unfair treatment based on their disability. Paulone v. City of Frederick, 787 F. Supp. 2d 360, 392 (D. Md. 2011) (Hollander, J.) (explaining that there is a “lack of clarity” on this issue). Putting aside this debate, there is sufficient evidence in the record which Plaintiffs may utilize to seek to prove that they have suffered an actual injury based on the various ways Defendants are alleged to have violated the ADA and the Rehabilitation Act.
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RA.”); Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“Neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state officials.”). Accordingly, Plaintiffs cannot hold Moyer or his successor, Green, liable in their individual capacities under Title II of the ADA or Section 504 of the Rehabilitation Act. Remaining for adjudication are Plaintiffs’ claims against the Department and official capacity claims against Defendant Robert L. Green for violations of Title II of the ADA and Section 504 of the Rehabilitation Act.
B. Defendants have Waived their Sovereign Immunity Defense to Plaintiffs’ ADA Claims. Defendants seek Summary Judgment on Plaintiffs’ ADA claims on the sole ground
that they are immune to suit under Title II of the ADA. This argument only applies to Plaintiffs’ ADA claims for damages, not injunctive relief. Ex Parte Young, 209 U.S. 123, 156 (1908). Moreover, there is no dispute that Defendants have waived any claim to sovereign immunity under Plaintiffs’ identical Rehabilitation Act claims by accepting federal funding. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 496 (4th Cir. 2005).
Defendants first asserted their immunity defense to Plaintiffs’ ADA claims in their Motion to Dismiss (ECF No. 100) filed on January 10, 2019, nearly three years after this case commenced on March 30, 2016 and over two years after the Amended Complaint was filed on September 7, 2016. In United States v. Georgia, 546 U.S. 151, 159, 126 S. Ct. 877 (2006), the Supreme Court held that the ADA abrogates state sovereign immunity for conduct that also violates the Fourteenth Amendment to the United States Constitution. 546 U.S. at 159, 126 S. Ct. 877 (2006). Neither the Supreme Court nor the Fourth Circuit have decided whether
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sovereign immunity is vitiated for non-constitutional Title II claims. Id. (reserving this issue for the lower courts); Spencer v. Earley, 278 F. App’x 254, 257-48 (4th Cir. 2008) (declining to decide the extent to which Title II abrogates state sovereign immunity for claims which do not allege constitutional violations). But see Barnes v. Young, 565 F. App’x 272 (4th Cir. 2014) (concluding, in an unpublished per curiam decision with citation to Georgia, that Title II claims were barred because district court properly entered summary judgment against plaintiff on his § 1983 claims).
This Court need not resolve this constitutional question, because Defendants have waived their sovereign immunity defenses by waiting over two years to assert it. A Defendant may waive its defenses as a result of its “delay in asserting the defense or its course of conduct during litigation.” James M. Wagstaffe, Federal Civil Procedure Before Trial § 22-IV at 22.129 (2018). The state may waive its defense of sovereign immunity. Constantine, 411 F.3d 474, 491 (4th Cir. 2005). A sovereign immunity defense may be waived when defendants’ conduct during litigation “indicates consent to this suit and an acceptance of the federal court’s jurisdiction.” Garrity v. Sununu, 752 F.2d 727, 738 (1st Cir. 1984). The “‘tactical decision’” to delay an assertion of immunity likewise results in waiver. Barachkov v. Davis, 580 F. App’x 288, 299 (6th Cir. Aug. 28, 2014) (quoting In re Bliemeister, 296 F.3d 858, 862 (9th Cir. 2002)).
Numerous federal courts of appeals have found that defendants waived sovereign immunity by participating in litigation for years without protest. See, e.g., Cable v. Dep’t of Developmental Servs. of California, 54 F. App’x 263, 264 (9th Cir. 2002) (“actively participat[ing] in pre-trial proceedings for more than four years and wait[ing] until the eve of trial before asserting” sovereign immunity defense constituted waiver); Hill v. Blind Indus. & Servs., 179
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F.3d 754, 762 (9th Cir. 1999) (“appearing and litigating the merits of the controversy without objection” can amount to waiver); Hankins v. Finnel, 964 F.2d 853, 856-58 (8th Cir. 1992) (concluding that state waived its sovereign immunity defense by “seek[ing] to take advantage of the suit for its own benefit”); cf. Neinast v. Texas, 217 F.3d 275, 279 (5th Cir. 2000) (finding that state did not waive its sovereign immunity defense because district court had previously granted its motion to dismiss based on the Tax Injunction Act and it “never had occasion to contest its presence in federal court” on other grounds).
In this case, Defendants’ delayed assertion of sovereign immunity must result in waiver. Defendants obtained numerous extensions to respond to Plaintiffs’ Amended Complaint to permit the facilitation of settlement discussions. On December 18, 2017, this Court extended the deadline to “file a response to the complaint” to ten (10) days after referral of this matter to a Magistrate Judge for settlement discussions and either (a) “development of a schedule” or (b) “joint declaration of an impasse in developing a schedule after reasonable attempts to do so.” (ECF No. 51.) On January 31, 2018 this case was referred to Magistrate Judge Stephanie A. Gallagher for settlement purposes. (ECF No. 54.) On February 27, 2018, Judge Gallagher scheduled an initial settlement conference and a follow-up settlement conference. (ECF No. 55.) Accordingly, Defendants’ Motion to Dismiss was due on March 9, 2018. Defendants completely failed to meet this deadline by filing a Motion to Dismiss on January 10, 2019.
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In that Motion to Dismiss, Defendants sought to dismiss the Amended Complaint on various grounds and argued, for the first time,8 that they were immune to Plaintiff’s ADA claims. At the time, the parties were constrained by a tight discovery deadline and trial date had been established. Defendants’ dilatory tactics, combined with their numerous appearances before magistrate judges for settlement and discovery purposes amounts to a waiver of the State’s sovereign immunity defense. Although the Defendants had not previously filed a formal pleading in this action, its activities before this Court constitute affirmative acts signaling the Defendants’ consent to suit. Because Defendants conduct is plainly incompatible with an invocation of sovereign immunity, they have waived their sovereign immunity defense.
Additionally, Defendants vulnerability to suit under Section 504 of the Rehabilitation Act precludes them from asserting that defense against Plaintiffs’ identical Title II claims. Plaintiffs assert the same claims under both Section 504 and Rehabilitation Act and seek the same remedies under both statutes. The parties have indicated that the slight differences between these statutes, including their distinct causation requirements, are not at issue. Accordingly, these claims are subject to identical legal analyses. Under these circumstances, it would make little sense to hold, on the one hand, that Defendants are susceptible to suit under Section 504, but, on the other hand, that they are immune to Plaintiffs’ legally indistinguishable ADA claims. See, e.g., Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 289 (5th Cir. 2005) (holding that state could not assert sovereign immunity to Plaintiffs’ Title II claims because it had accepted federal funding, rendering it vulnerable to suit under Section 504, and plaintiffs’ suit
8 During a Motions Hearing before this Court on April 24, 2019, counsel for Defendants acknowledged that, despite lengthy settlement discussions, Defendants never informed Plaintiffs that they intended to assert this defense before filing the Motion to Dismiss.
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did not implicate any distinctions between the two statutes). Under the circumstances presented here, Defendants may not evade liability under the ADA by invoking sovereign immunity.
C. Plaintiffs have not established that they are entitled to Summary Judgment on their ADA or Rehabilitation Act claims. Plaintiffs petition this Court to grant partial Summary Judgment and to “declare” ten
items enumerated in their Motion. (ECF No. 172.) This list of items would require this Court to make certain factual findings (e.g., “Defendants failed to give primary consideration to the choices of blind inmates in determining what auxiliary aids or services to provide”) and make mixed rulings of fact and law (e.g., “All Plaintiffs are individuals with disabilities protected by Title II and Section 504.”). (Id.) This Court’s analysis will focus on whether there are genuine issues of material fact to be resolved by a jury.
During the Motions Hearing, Plaintiffs clarified that they sought Summary Judgment on “six major claims”: (1) failing to establish a process for providing auxiliary aids and other reasonable modifications or notifying Plaintiffs of their rights under Title II and Section 504; (2) denying auxiliary aids to ensure that plaintiffs’ communications with Defendants, courts, and others were equally effective as those enjoyed by other inmates; (3) refusing to make reasonable modifications to ensure safe celling arrangements for blind or visually impaired inmates; (4) failing to supply training or other services to permit Plaintiffs to safely navigate department facilities, and instead requiring Plaintiffs to rely on escorts or “walkers” recruited from the prison population; (5) excluding plaintiffs from desirable kitchen jobs which provided the opportunity to earn additional diminution credits; and (6) restricting plaintiffs to incarceration at medium security facilities even when (a) they had lower security classifications
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which would entitle them access to minimum security facilities and/or (b) they needed programs that were not available at RCI, all in violation of Title II of the ADA and Section 504 of the Rehabilitation Act. For the reasons set forth herein, Summary Judgment is not appropriate on any of these claims.
1. Plaintiffs do not have a private right of action to challenge the Department’s failure to implement policies and procedures required by the ADA’s implementing regulations (Claim 1). Under their first Claim, Plaintiffs seek Summary Judgment based on the Defendants
failure to implement certain policies and procedures, as required by the implementing regulations accompanying Title II of the ADA. Under the regulations, public entities with 50 or more employees, such as the Department of Public Safety & Correctional Services, are required to:
Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to it alleging its noncompliance with this part or alleging any actions that would be prohibited by [the ADA]. The public entity shall make available to all interested individuals the name, office address, and telephone number of the employee or employees designated pursuant to this paragraph. 28 C.F.R. § 35.107. The designated employee is commonly referred to as the “ADA Coordinator.” The regulations also require public entities, “within one year of the effective date of this part, [to] evaluate [their] current services, policies, and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such services policies, and practices is required, the public entity shall proceed to make the necessary modifications.” 28 C.F.R. § 35.105(a). Finally, the regulations require the
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Department to “make available” to disabled inmates information about the ADA and its “applicability” to the Department “and make such information available to them in such manner as the head of the entity finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.” 28 C.F.R. § 35.106.
To the extent that Plaintiffs seek to assert a stand-alone claim based purely on the Defendants’ undisputed failure to abide by these regulations, this claim must fail. Plaintiffs do not enjoy a private right of action to enforce implementing regulations which impose “an obligation beyond the statutory mandate.” Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (citing Alexander v. Sandoval, 532 U.S. 275, 284-85, 121 S. Ct. 1511 (2001). Applying this rule, numerous courts have concluded that there is no private right of action to enforce 28 C.F.R. §§ 35.105, 106, and 107. See Iverson, 452 F.3d 94, 101 (1st Cir. 2006) (no private right of action to enforce 28 C.F.R. § 35.105); O’Byrne v. Reed, 2010 WL 11596665, at *7 (C.D. Cal. Feb. 5, 2010) (expressing doubts about whether 35.106 establishes a private right of action in light of Iverson); Shaw v. Floyd, 3:16-CV-2647-D-BK, 2017 WL 2348818, at *3 (N.D. Tex. March 27, 2017) (no private right of action to enforce 28 C.F.R. § 35.107).
In light of the emerging consensus on this issue, this Court holds that Plaintiffs lack a private right of action to hold Defendants liable for failing to implement certain policies and procedures. Instead, the undisputed failure of Defendants to implement policies and procedures designed to inform inmates of their legal rights may be used as evidence that Defendants violated the ADA or the Rehabilitation Act in other ways, such as by failing to provide reasonable modifications. Defendants failure may also be used to calibrate injunctive relief, if appropriate.
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2. Genuine Disputes of Material Fact Preclude Summary Judgment on Claim 2. Under Claim 2, Plaintiffs fault Defendants for failing to provide accommodations to
ensure that their communications with Defendants, the courts, and others were equally effective as those enjoyed by other inmates. Plaintiffs fault Defendants for failing to make the following forms of “communications,” broadly defined, accessible: grievance procedures; the Inmate Handbook and orientation materials; directives and institutional bulletins; requests for medical attention; commissary orders; counseling or therapy materials; the institutional mail system; and library materials, including legal documents and subscription services. (Pls.’ Mot. Summ. J. 6-10, ECF No. 172-1.)
Title II prohibits entities from excluding qualified individuals with disabilities from or denying them the benefits of a public entity’s “services, programs, or activities.” 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a). This phrase “encompasses virtually everything that a public entity does.” Paulone v. City of Frederick, 787 F. Supp. 2d 360, 381 (D. Md. 2011) (Hollander, J.) (quoting Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998). Accordingly, state prisons must provide inmates equal access to the benefits they confer, including recreational activities, medical services, and vocational programs. Yeskey, 524 U.S. at 210, 118 S. Ct. 1952. The benefits and services must be identified with “some granularity.” Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 503 (4th Cir. 2016) (narrowly identifying absentee voting, rather than the entire voting program, as the program to which blind voters were entitled equal access). Under this rubric, Plaintiffs may challenge the adequacy of accommodations provided to ensure “equal access” to various minute features of prison life, and they have done so.
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Equal access may require “reasonable modifications to rules, policies, or practices, the removal of architectural, communication or transportation barriers, or the provision of auxiliary aids and services.” 42 U.S.C. § 12131(2). The term “reasonable modifications” in this context is synonymous with the term “reasonable accommodations” as that term is employed in the context of Title I employment discrimination cases. Jarboe v. Maryland Dep’t of Pub. Safety & Corr. Servs., ELH-12-572, 2013 WL 1010357 (D. Md. March 13, 2013). Reasonable modifications include the furnishing of “auxiliary aids or services,” which is defined to include the following:
(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
(C) acquisition or modification of equipment or devices; and (D) other similar services and actions. 42 U.S.C. § 12103(1). Pursuant to Congressional authorization, see 42 U.S.C. § 12134(a), the Justice Department has promulgated implementing regulations which interpret the requirements of Title II. Even if these regulations do not in all cases give rise to stand-alone rights of action, see supra, regulations of this kind are nonetheless given “controlling weight.” Seremeth, 673 F.3d at 338. Under these regulations, public entities are obliged to “ensure that communications with applicants, participants, [and] members of the public . . . with disability are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1). In pursuit of this objective, public entities must “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity.” § 35.160(b)(1). The
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regulations define “auxiliary aids” more broadly than the statute, and include: “qualified readers; taped texts; audio records; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision.” § 35.104.
Under 28 C.F.R. § 35.160, Defendants must give “primary consideration” to the requests of individuals with disabilities for auxiliary aids and services. The Department of Justice commentary clarifies “that a public entity ‘shall honor the choice’ of auxiliary aid or service expressed by the person with disabilities, ‘unless it can demonstrate that another effective means of communication exists or that use of the means chosen’ would fundamentally alter the program, service, or activity of the public entity at issue, or would create an undue financial or administrative burden.” Paulone v. City of Frederick, 787 F. Supp. 2d 360, 397 (D. Md. 2011). To be effective, auxiliary aids and services “must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. Id. § 35.160(b)(2).
The type of auxiliary aids required to be provided involves “a fact intensive inquiry often ill-suited for summary judgment.” Reyes v. Dart, 17 C 9223, 2019 WL 1897096 (N.D. Ill. April 29, 2019) (collecting cases). As the Fourth Circuit has recognized, “what constitutes reasonable accommodations . . . is a question of fact and will vary according to the circumstances.” Seremeth v. Bd. of Cnty. Com’rs Frederick Cnty., 673 F.3d 333, 340 (4th Cir. 2012); see also Crane v. Lifemark Hosps., Inc., 898 F.3d 1130, 1135 (11th Cir. 2018) (“The task of
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determining whether an entity subject to the RA has provided appropriate auxiliary aids where necessary is inherently fact-intensive and it is precisely because of this fact-intensive inquiry that an effective-communication claim often presents questions of fact precluding summary judgment.”). In evaluating this question of fact, the “dispositive question” is not whether the Defendants provided the Plaintiffs with their desired auxiliary aids, “but whether [Defendants’] communication with plaintiff was as effective as [their] communications with others.” Fry v. City of Northglenn, Colorado, 16-cv-02318-PAB-KLM, 2018 WL 1010942, at *3 (D. Col. Feb. 22, 2018) (collecting cases).
Defendants do not dispute that the overwhelming majority of the “communications” identified by the Plaintiffs were not provided in an accessible format. They instead argue that they have complied with Title II and Section 504 by making available to Plaintiffs “qualified readers or . . . other effective methods of making visually delivered materials available to individuals with visual impairments.” 42 U.S.C. § 12103(1)(B). They direct this Court to evidence that Plaintiffs’ “walkers,” inmates assigned to assist with navigation, and certain staff members routinely read and write for Plaintiffs. See, e.g., PSJ Ex. E, Reid 30(b)(6) Dep. 70:117 (testifying that case managers were available to write documents, including ARPs, for blind inmates); DSJ Ex. 10, Job Duties for Inmates Assigned as Escorts for the Blind (“The escort may assist the visually impaired inmate with any written correspondence ([i.e.,] sick call requests, ARP’s, departmental requests to staff, etc[.]).”); Brown Dep. 41 (“One of my biggest things from walkers is reading, and I felt that was pretty much a good thing.”)
Plaintiffs contend that obtaining assistance from other inmates or staff members is unreasonable as a matter of law because this method of accommodation does not protect their
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“privacy and independence,” as required by 28 C.F.R. § 35.160(b)(2). However, this interpretation is without merit as it would run afoul of the ADA itself, which specifically permits the services of a “qualified reader” as an accommodation. 42 U.S.C. § 12103(1). The assistance of a third party reader or scribe will always reduce a parties’ “independence” to some degree and will likely involve some slight invasion of privacy. Moreover, as Defendants note, prisons never guarantee privacy or independence to any inmates. Whatever guidance the “privacy and independence” requirement offers in other contexts, it cannot be given much weight in prison. See 28 C.F.R. § 35.160(b)(2) (“The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used . . . and the context in which the communication is taking place.”). Ultimately, the question is not whether Plaintiffs have been deprived of private and independent communications, but whether the services Defendants provide are adequate to ensure that Plaintiffs are able to communicate as effectively as their fellow inmates.
Plaintiffs also fault Defendants for failing to require, rather than merely permit, walkers and case managers to assist them with reading and writing. Additionally, they argue that inmate escorts were not “qualified” readers and scribes because they were not screened for certain educational qualifications. These objections, however, are not dispositive. The ultimate question is whether Defendants have taken steps to ensure that blind inmates are able to communicate as effectively as other inmates. In some contexts, the assistance of other inmates may ensure this result. Wells v. Thaler, 460 F. App’x 303, 312-13 (5th Cir. 2012) (upholding determination that Defendants satisfied their Title II obligations by permitting inmate to recruit the assistance of other prisoners to access the law library); Mason v. Corr. Med. Servs.,
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Inc., 559 F.3d 880, 887 (8th Cir. 2009) (holding that plaintiff’s assistance from a fellow inmate, who escorted him everywhere and assisted him with all his needs, satisfied the requirements of the ADA). In this case, the jury must determine whether assistance from other inmates and prison staff satisfied Defendants obligations to blind inmates. In so doing, the jury must resolve whether, and to what extent, each Plaintiff needed assistance reading and writing; whether inmates or staff were “qualified,” that is “able to read effectively, accurately, and impartially using any necessary specialized vocabulary”, see 28 C.F.R. § 35.104; and, ultimately, whether any assistance received permitted Plaintiffs to communicate “as effectively” as other inmates.
3. Plaintiffs are not entitled to Summary Judgment on Claim 3. Plaintiffs argue that Defendants denied Hammond, Delano, Wilson, and Brown “equal
access to safe housing and violated their rights to reasonable modifications when [they] disregarded their single cell orders and failed to timely respond to Brown’s request to be evaluated for a single cell.” (ECF No. 172-1, at 42-43.) To support these assertions, Plaintiffs have supplied evidence that the Department’s own medical contractor determined that Delano, Wilson, and Hammond should permanently reside in single cells, but that the Department nonetheless placed them in double-cells. Additionally, Plaintiffs have produced evidence that on November 24, 2014 Brown was told that he would be double-celled because RCI did not have a record of his visual impairment even though his medical records note a history of “single cell housing [due to] legally blind status.” (PSJ Ex. 60, at BROWN 1022.)
Title II and Section 504 require Defendants to provide safe housing to disabled and non-disabled inmates alike. See Spencer v. Earley, 278 F. App’x 254, 258 n.2, 258-60 (4th Cir.
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2008) (permitting Rehabilitation Act claims based in part on allegation that plaintiff was denied “single-cell housing . . . as necessitated by his disability.”); Arenas v. Georgia Dep’t of Corrs., CV416-320, 2018 WL 988099, at *8 (S.D. Ga. Feb. 20, 2018) (denying defendant’s motion to dismiss ADA claim based on failure to provide accommodation of “appropriate cell.”) Nevertheless, the reasonableness of a certain celling arrangement, as with all types of requested accommodations, requires a fact-intensive inquiry. Paulone, 787 F. Supp. 2d at 398 (D. Md. 2011) (“whether an accommodation is reasonable is ultimately a question of fact”). In this case, the jury must decide whether single-celling was the only reasonable method of ensuring safe housing or if, as some witnesses testified, double-celling was an equally effective means of ensuring safe housing. (Defs.’ Resp. Ex. 39, Corcoran Dep. 217 (testifying that “sometimes it can be helpful to have another person in the cell” and that double-celling could be “more safe” [sic] for blind inmates); Defs.’ Resp. Ex. 40, Moyer Dep. 70-71 (noting that doublecelling blind inmates could ensure their safety during an emergency).)
4. Plaintiffs are not entitled to Summary Judgment on Claim 4.
To permit Plaintiffs access to any of their services, Defendants must ensure that Plaintiffs are able to navigate the prison facilities. See, e.g., Chaffin v. Kansas State Fair Bd., 348 F.3d 850, 861 (10th Cir. 2003) (“[F]acilities as a whole must be readily accessible.”) It is undisputed that Defendants assign sighted inmates as escorts or “walkers,” to help blind inmates navigate prison facilities. Walkers are required to escort blind inmates to any passes (e.g., medical, educational, or other appointments) and assist the blind inmate during an emergency. Although there is evidence that some inmate walkers were uncooperative or aggressive, the jury must ultimately decide whether and to what extent (1) plaintiffs even
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needed walkers for assistance navigating; (2) whether plaintiffs were afforded other accommodations, such as canes; and (3) whether each plaintiff received navigation assistance that permitted them “equal access” to Defendants’ programs and services. On this record, these issues cannot be resolved on Summary Judgment.
5. Plaintiffs are not entitled to Summary Judgment on Claim 5.
Plaintiffs seek Summary Judgment on their claims that they were denied kitchen assignments because of they are blind. Defendants respond that most kitchen work is too dangerous for Plaintiffs, as there is insufficient staff to protect blind inmates from the dangers involved with mixing inmates and cutlery. Defendants also argue that they have satisfied their legal obligations by designating a special kitchen job, the “blind greeter,” for blind inmates.
The United States Supreme Court has held that vocational programs are among the benefits and services provided by prisons for purposes of Title II. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S. Ct. 1952 (1998). Persuasive authority holds that prisons violate Title II and Section 504 when they exclude prisoners from work because of their disabilities. See, e.g., Northrop v. Carucci, No. 3:04–CV–103 RNC, 2007 WL 685173, at *4 (D. Conn. Mar. 5, 2007) (denying summary judgment where the plaintiff alleged “that he was discharged from his kitchen job and not provided a different job because of his disability”).
As with any claim of disparate treatment under Title II and Section 504, the Plaintiffs must show that they are “otherwise qualified” to the benefits they seek to enjoy. “An individual is not otherwise qualified if he poses a significant risk to the health and safety of others” because of a disability that cannot be eliminated by reasonable accommodation.” Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995). Defendants may
55

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demonstrate, as an affirmative defense, that Plaintiffs posed a “direct threat” to others if permitted to work in the kitchen. See Wood v. Maryland Dep’t of Transp., 723 F. App’x 177, 181 (4th Cir. 2018) (explaining that “direct threat” is an affirmative defense to Title II and Section 504 claims). The Department of Justice has promulgated regulations describing how a public entity is to assess whether an individual poses a direct threat:
In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. 28 C.F.R. § 35.139(b). In this case, there is evidence that RCI employees were concerned that Plaintiffs posed a risk to themselves and others when operating in an understaffed prison kitchen. (Defs.’ Resp. Ex. 22, Schenck Dep. 131:6-10 (expressing concerns that Hopkins might put hot food on someone’s hand or upend a tray while working in close quarters with sixty other inmates). Moreover, there is evidence that Plaintiffs have received adequate accommodations by being able to work in the “blind greeter” position. On this record, it is a question of fact whether plaintiffs were qualified to work in the kitchen and whether the blind greeter position presents a reasonable modification. 6. Plaintiffs are not entitled to Summary Judgment on Claim 6. The Department of Justice regulations proscribe the practice of housing inmates in a discriminatory manner. The regulations state as follows:
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(2) Public entities shall ensure that inmates or detainees with disabilities are housed in the most integrated setting appropriate to the needs of the individuals. Unless it is appropriate to make an exception, a public entity— (i) Shall not place inmates or detainees with disabilities in inappropriate security classifications because no accessible cells or beds are available; . . . (iii) Shall not place inmates or detainees with disabilities in facilities that do not offer the same programs as the facilities where they would otherwise be housed; 28 C.F.R. § 35.152(b)(2)(i), (iii), and (iv).
In this case, there is no dispute that RCI is the Department’s designated facility for the blind and that it lacks certain programs and opportunities available at other facilities. Nevertheless, there are factual questions at issue. There is evidence that Hopkins requested to stay at RCI; that Wilson requested to leave Dorsey Run; that James was placed in a minimum security prison; and that Delano could not stay at Patuxent because of safety concerns. The jury must resolve factual disputes concerning whether it was “appropriate” to house inmates in RCI because it offered at least some specialized assistance for blind inmates. The “appropriateness” of this decision must be based upon resolutions of other factual disputes, including the degree to which RCI provided reasonable accommodations to blind inmates.
7. Conclusion
In sum, there are numerous factual issues that raise genuine issues of material fact to be addressed at trial. As this Court has recognized, the reasonableness of an accommodation is ordinarily “a fact intensive inquiry.” Nat’l Fed’n of the Blind, Inc. v. Lamone, RDB-14-1631, 2014 WL 4388342, at *12 (D. Md. Sept. 4, 2014) aff’d, 813 F.3d4394 (4th Cir. 2016); see also Cline v. Contra Costa County, No. 05-15337, 2006 WL 3698678 (9th Cir. Dec. 13 2006) (“The
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reasonableness of an accommodation is ordinarily a jury question.”); Paulone, 787 F. Supp. 2d at 398 (D. Md. 2011) (“whether an accommodation is reasonable is ultimately a question of fact”). On this record, the jury must address a series of factual disputes to determine whether each Plaintiff received reasonable accommodations affecting nearly every facet of their lives in prison.
III. Summary Judgment is not Warranted on Plaintiffs’ Claims for Injunctive Relief.
Finally, Defendants have moved for Summary Judgment on Plaintiffs’ claims for injunctive relief under all Claims.
“Under ‘well-established principles of equity,’ a plaintiff seeking a permanent injunction must demonstrate: (1) that [he] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
Legend Night Club v. Miller, 637 F.3d 291, 297 (4th Cir. 2011) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). As a prelminary matter, Plaintiffs Polley, Hammond, Delano, Hopkins, and Holley have no claim to equitable relief because they are no longer incarcerated. See Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009) (“[A]s a general rule, a prisoner’s transfer or release from a particular prison moots his claims for injunctive and declaratory relief with respect to his incarceration there.”)
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In light of this Court’s ruling in favor of Defendants on Plaintiffs’ constitutional claims (Counts I and II), injunctive relief based on any alleged constitutional violations is not warranted. As to Counts III and IV, genuine disputes of material fact preclude Summary Judgment on Plaintiffs’ claims for injunctive relief. There is evidence that conditions at RCI have changed very little since this litigation commenced. Accordingly, there are genuine issues of material fact with respect to the ADA and Rehabilitation Act, which preclude Summary Judgment on those claims.
CONCLUSION For the reasons stated above, Defendants’ Motion to Dismiss (ECF No. 100) is DENIED AS MOOT; Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 172) is DENIED; Defendants’ Motion for Summary Judgment (ECF No. 178) is GRANTED IN PART AND DENIED IN PART; Plaintiffs’ Motion for Leave to File a Surreply (ECF No. 207) is GRANTED; and Plaintiffs’ Motion for Substitution or for Judicial Notice of Substitution under Federal Rule of Civil Procedure 25(d) (ECF No. 208) is GRANTED. Summary Judgment IS ENTERED in favor of Defendants on Counts I and II. Counts III and IV will proceed to trial against the Department and Green in his official capacity.

A separate Order follows. Dated: May 13, 2019

______/s/__________________ Richard D. Bennett United States District Judge
59

 
 Case 1:16-cv-00945-RDB Document 231 Filed 05/13/19 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

STEVEN BROWN, et al.,

*

Plaintiffs, v.

* Civil Action No. RDB-16-0945
*

DEPARTMENT OF PUBLIC

*

SAFETY AND CORRECTIONAL

SERVICES, et al.,

*

Defendants.

*

* * * * * * * * * * * * * ORDER AND JUDGMENT

For the reasons stated in the accompanying Memorandum Opinion, IT IS HEREBY

ORDERED AND ADJUDGED this 13th day of May, 2019 that:

1. Plaintiffs’ Motion for Leave to File a Surreply (ECF No. 207) is GRANTED;

2. Plaintiffs’ Motion for Substitution (ECF No. 208) is GRANTED; Robert L. Green is

HEREBY SUBSTITUTED for Defendant Stephen Moyer with respect to all official

capacity claims asserted against him;

3. Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 172) is DENIED;

4. Defendants’ Motion to Dismiss (ECF No. 100) is DENIED AS MOOT;

5. Defendants’ Motion for Summary Judgment (ECF No. 178) is GRANTED IN

PART AND DENIED IN PART. Specifically:

a. The Motion is GRANTED with respect to Counts I and II and JUDGMENT

IS ENTERED in favor of Defendants with respect to Counts I and II;

Case 1:16-cv-00945-RDB Document 231 Filed 05/13/19 Page 2 of 2
b. The Motion is DENIED with respect to Counts III and IV, which shall proceed to trial;
6. Plaintiffs’ Motions for Writ of Habeas Corpus ad testificandum (ECF Nos. 164, 165, 166, 167) are HEREBY WITHDRAWN pursuant to Plaintiffs’ Notice of Withdrawal (ECF No. 202);
7. The Clerk of this Court shall transmit copies of this Order to Counsel of record.
___/s/________________ Richard D. Bennett United States District Judge

 
 Case 1:16-cv-00945-RDB Document 239 Filed 06/06/19 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

STEVEN BROWN, WILBERT DELANO, GREGORY HAMMOND, SEDRIC HOLLEY, RUSSELL HOPKINS, JOHNNIE JAMES, TYRELL POLLEY, MAYNARD SNEED, and ROBERT WILSON,

* * * * Civil Case No. 1:16-cv-00945 *

Plaintiffs,

*

v.

*

DEPARTMENT OF PUBLIC SAFETY *

AND CORRECTIONAL SERVICES,

STEPHEN MOYER,

*

DAYENA M. CORCORAN, and

RICHARD MILLER,

*

Defendants.

*

* * * * * * * * * * * * * * * * * * * *

STIPULATION OF DISMISSAL

Pursuant to Rule 41 of the Federal Rules of Civil Procedure, Plaintiffs and

Defendants hereby stipulate and agree that this action is dismissed with prejudice,

provided that this dismissal shall be without prejudice to Plaintiffs’ right to move this

Court to enforce the Parties’ Settlement Agreement, as contemplated by Ex. 1, ¶ 19 to that

Agreement.

.

Case 1:16-cv-00945-RDB Document 239 Filed 06/06/19 Page 2 of 3
Respectfully submitted,
/s/ Stephen Z. Meehan STEPHEN Z. MEEHAN (Federal Bar No. 23915) DAMIEN DORSEY (Federal Bar No. 19194) Prisoner Rights Information System of MD, Inc. P.O. Box 929 Chestertown, Maryland 21620 (410) 528-1400 (telephone) (410) 528-1550 (facsimile) smeehan@prisminc.org ddorsey@prisminc.org
/s/ Eve L. Hill EVE L. HILL (Federal Bar No. 19938) JESSICA P. WEBER (Federal Bar No. 17893) ABIGAIL GRABER (Federal Bar No. 19727) JAMES T. FETTER (Federal Bar No. 20727) Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, Maryland 21202 (410) 962-1030 (telephone) (410) 385-0869 (facsimile) ehill@browngold.com agraber@browngold.com jweber@browngold.com jfetter@browngold.com
Attorneys for Plaintiffs
BRIAN E. FROSH Attorney General
/s/ Robert A. Scott ROBERT A. SCOTT (Fed. Bar No. 24613) JENNIFER L. KATZ (Fed. Bar No. 28973) JOHN M. LEOVY (Fed. Bar No. 20803) KIRSTIN LUSTILA (Fed. Bar No. 02103) Assistant Attorneys General 200 Saint Paul Place, 20th Floor
2

Case 1:16-cv-00945-RDB Document 239 Filed 06/06/19 Page 3 of 3
Baltimore, Maryland 21202 410-576-7055 (telephone) 410-576-6955 (facsimile) rscott@oag.state.md.us jkatz@oag.state.md.us jleovy@oag.state.md.us klustila@oag.state.md.us
LISA O. ARNQUIST (Fed. Bar No. 25338) MICHAEL O. DOYLE (Fed. Bar No. 11291 Assistant Attorneys General Department of Public Safety & Correctional Services 300 E. Joppa Road, Suite 1000 Towson, Maryland 21286 (410) 339-7568 (telephone) (410) 764-5366 (facsimile) lisa.arnquist@maryland.gov michaelo.doyle@maryland.gov Attorneys for Defendants
3

 
 U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:16-cv-00945-RDB

Brown v. Department of Public Safety and Correctional Date Filed: 03/30/2016

Services

Date Terminated: 06/06/2019

Assigned to: Judge Richard D Bennett

Jury Demand: Plaintiff

Referred to: Magistrate Judge Stephanie A Gallagher Nature of Suit: 550 Prisoner: Civil

(Settlement)

Rights

Cause: 42:1983pr Prisoner Civil Rights

Jurisdiction: Federal Question

Plaintiff
Anthony Blue TERMINATED: 09/09/2016

represented by Stephen Z Meehan Prisoner Rights Information System of Maryland, INC PO 929 Chestertown, MD 21620 4107781700 Fax: 4107783453 Email: smeehan@prisminc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damien Dorsey Prisoner Rights Information System of Maryland, Inc. P.O.B. 929 Chestertown, MD 21620 410-528-1400 Fax: 410-528-1550 Email: ddorsey@prisminc.org ATTORNEY TO BE NOTICED

Daniel Frank Goldstein Brown Goldstein and Levy LLP 120 E Baltimore St Ste 1700 Baltimore, MD 21202 14109621030 Fax: 14103850869 Email: dfg@browngold.com ATTORNEY TO BE NOTICED

Eve Lynne Hill Brown Goldstein & Levy, LLP

Plaintiff Johnnie James

120 East Baltimore St. Ste. 1700 Baltimore, MD 21202 410-962-1030 Fax: 410-385-0869 Email: ehill@browngold.com ATTORNEY TO BE NOTICED
Jessica Paulie Weber Brown Goldstein and Levy LLP 120 E Baltimore St Ste 1700 Baltimore, MD 21202 14109621030 Fax: 14103850869 Email: jweber@browngold.com ATTORNEY TO BE NOTICED
Joshua R Treem Brown Goldstein Levy LLP 120 E Baltimore St Ste 1700 Baltimore, MD 21202 14109621030 Fax: 14103850869 Email: jtreem@browngold.com ATTORNEY TO BE NOTICED
represented by Stephen Z Meehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Graber Brown Goldstein & Levy 120 East Baltimore Street Suite 1700 Baltimore, MD 21202 410-962-1030 Email: agraber@browngold.com ATTORNEY TO BE NOTICED
Damien Dorsey (See above for address) ATTORNEY TO BE NOTICED
Daniel Frank Goldstein

Plaintiff Steven Brown

(See above for address) ATTORNEY TO BE NOTICED
Eve Lynne Hill (See above for address) ATTORNEY TO BE NOTICED
James T Fetter Brown Goldstein & Levy LLP 120 E Baltimore Street Ste. 1700 Baltimore, MD 21202 4109621030 Fax: 4103850869 Email: JFetter@browngold.com ATTORNEY TO BE NOTICED
Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED
Joshua R Treem (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen Z Meehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Graber (See above for address) ATTORNEY TO BE NOTICED
Damien Dorsey (See above for address) ATTORNEY TO BE NOTICED
Daniel Frank Goldstein (See above for address) ATTORNEY TO BE NOTICED
Eve Lynne Hill (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Robert Wilson

James T Fetter (See above for address) ATTORNEY TO BE NOTICED
Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED
Joshua R Treem (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen Z Meehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Graber (See above for address) ATTORNEY TO BE NOTICED
Damien Dorsey (See above for address) ATTORNEY TO BE NOTICED
Daniel Frank Goldstein (See above for address) ATTORNEY TO BE NOTICED
Eve Lynne Hill (See above for address) ATTORNEY TO BE NOTICED
James T Fetter (See above for address) ATTORNEY TO BE NOTICED
Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED
Joshua R Treem (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Maynard Snead
Plaintiff Tyrell Polley

represented by Stephen Z Meehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Graber (See above for address) ATTORNEY TO BE NOTICED
Damien Dorsey (See above for address) ATTORNEY TO BE NOTICED
Daniel Frank Goldstein (See above for address) ATTORNEY TO BE NOTICED
Eve Lynne Hill (See above for address) ATTORNEY TO BE NOTICED
James T Fetter (See above for address) ATTORNEY TO BE NOTICED
Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED
Joshua R Treem (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen Z Meehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Graber (See above for address) ATTORNEY TO BE NOTICED
Damien Dorsey

Plaintiff Gregory Hammond

(See above for address) ATTORNEY TO BE NOTICED
Daniel Frank Goldstein (See above for address) ATTORNEY TO BE NOTICED
Eve Lynne Hill (See above for address) ATTORNEY TO BE NOTICED
James T Fetter (See above for address) ATTORNEY TO BE NOTICED
Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED
Joshua R Treem (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen Z Meehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Graber (See above for address) ATTORNEY TO BE NOTICED
Damien Dorsey (See above for address) ATTORNEY TO BE NOTICED
Daniel Frank Goldstein (See above for address) ATTORNEY TO BE NOTICED
Eve Lynne Hill (See above for address) ATTORNEY TO BE NOTICED
James T Fetter

Plaintiff Sedric Holley
Plaintiff

(See above for address) ATTORNEY TO BE NOTICED
Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED
Joshua R Treem (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen Z Meehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Graber (See above for address) ATTORNEY TO BE NOTICED
Damien Dorsey (See above for address) ATTORNEY TO BE NOTICED
Daniel Frank Goldstein (See above for address) ATTORNEY TO BE NOTICED
Eve Lynne Hill (See above for address) ATTORNEY TO BE NOTICED
James T Fetter (See above for address) ATTORNEY TO BE NOTICED
Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED
Joshua R Treem (See above for address) ATTORNEY TO BE NOTICED

Wilbert M. Delano
Plaintiff Russell Hopkins

represented by Stephen Z Meehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Graber (See above for address) ATTORNEY TO BE NOTICED
Damien Dorsey (See above for address) ATTORNEY TO BE NOTICED
Daniel Frank Goldstein (See above for address) ATTORNEY TO BE NOTICED
Eve Lynne Hill (See above for address) ATTORNEY TO BE NOTICED
James T Fetter (See above for address) ATTORNEY TO BE NOTICED
Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED
Joshua R Treem (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen Z Meehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Graber (See above for address) ATTORNEY TO BE NOTICED
Damien Dorsey (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Department of Public Safety and Correctional Services

Daniel Frank Goldstein (See above for address) ATTORNEY TO BE NOTICED
Eve Lynne Hill (See above for address) ATTORNEY TO BE NOTICED
James T Fetter (See above for address) ATTORNEY TO BE NOTICED
Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED
Joshua R Treem (See above for address) ATTORNEY TO BE NOTICED
represented by Lisa O Mara Arnquist Maryland Office of the Attorney General Department of Public Safety 300 E. Joppa Road Suite 1000 Towson, MD 21286 410-339-7568 Fax: 14107644022 Email: lisa.arnquist@maryland.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A Scott Office of the Attorney General Civil Division 200 St. Paul Place 20th Floor Baltimore, MD 21202 14105767055 Email: rscott@oag.state.md.us

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Teresa Kelly Office of the Attorney General 200 St. Paul Place Baltimore, MD 21202 14105767962 Fax: 14105766880 Email: tkelly@oag.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer L. Katz Office of the Attorney General Civil Division 200 St. Paul Place 20th Floor Baltimore, MD 21202 14105767005 Fax: 14105766955 Email: jkatz@oag.state.md.us ATTORNEY TO BE NOTICED
John Mark Leovy Attorney General of Maryland 200 St. Paul Place 20th Floor Baltimore, MD 21202 410-576-7056 Email: jleovy@oag.state.md.us ATTORNEY TO BE NOTICED
Kirstin Lustila Office of the Attorney General 80 Calvert Street 4th Floor Annapolis, MD 21401 410-260-7412 Fax: 410-974-5926 Email: klustila@treasurer.state.md.us ATTORNEY TO BE NOTICED
Michael O Connor Doyle State of Maryland Office of the

Defendant Robert L. Green

Attorney General Department of Public Safety and Correctional Services 300 East Joppa Road Suite 1000 Towson, MD 21286 14103397567 Fax: 14107645366 Email: michaelo.doyle@maryland.gov ATTORNEY TO BE NOTICED
Stephanie Judith Lane Weber State of Maryland Office of the Attorney General 200 Saint Paul Pl Baltimore, MD 21202 14105766300 Fax: 14105766880 Email: slaneweber@oag.state.md.us ATTORNEY TO BE NOTICED
represented by Lisa O Mara Arnquist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A Scott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Teresa Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer L. Katz (See above for address) ATTORNEY TO BE NOTICED
John Mark Leovy (See above for address) ATTORNEY TO BE NOTICED

Defendant Dayena M. Corcoran

Kirstin Lustila (See above for address) ATTORNEY TO BE NOTICED
Michael O Connor Doyle (See above for address) ATTORNEY TO BE NOTICED
Stephanie Judith Lane Weber (See above for address) ATTORNEY TO BE NOTICED
represented by Lisa O Mara Arnquist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A Scott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Teresa Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer L. Katz (See above for address) ATTORNEY TO BE NOTICED
John Mark Leovy (See above for address) ATTORNEY TO BE NOTICED
Kirstin Lustila (See above for address) ATTORNEY TO BE NOTICED
Michael O Connor Doyle (See above for address) ATTORNEY TO BE NOTICED
Stephanie Judith Lane Weber

Defendant Richard Miller

(See above for address) ATTORNEY TO BE NOTICED
represented by Lisa O Mara Arnquist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A Scott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Teresa Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer L. Katz (See above for address) ATTORNEY TO BE NOTICED
John Mark Leovy (See above for address) ATTORNEY TO BE NOTICED
Kirstin Lustila (See above for address) ATTORNEY TO BE NOTICED
Michael O Connor Doyle (See above for address) ATTORNEY TO BE NOTICED
Stephanie Judith Lane Weber (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/30/2016

# Docket Text
1 COMPLAINT against Warden, filed by Anthony Blue. (Attachments: # 1 Envelope)(krs, Deputy Clerk) (Entered: 03/31/2016)

04/04/2016
04/04/2016
04/05/2016 05/11/2016 05/25/2016 05/27/2016
05/27/2016 05/31/2016 06/10/2016 07/01/2016 07/01/2016

2 ORDER Consolidating cases with RDB-16-cv-945; All pleadings from the consolidated cases shall be dockets in lead case; Granting motion for Appointment of Counsel; Appointing Stephen Meehan as counsel for each Plaintiff; Granting counsel 60 days to file required pleadings. Signed by Judge Richard D Bennett on 4/4/2016. (c/m 4/5/16)(krs, Deputy Clerk) (Entered: 04/05/2016)
3 Supplemental (Complaint RDB-16-946) to 1 Complaint. (Attachments: # 1 Complaint RDB-16-cv-947, # 2 Complaint RDB-16-cv-948, # 3 Complaint RDB-16-cv-949, # 4 Complaint RDB-16-cv-950, # 5 Complaint RDB-16-cv-951, # 6 Complaint RDB-16-cv-952, # 7 Complaint RDB-16-cv-953, # 8 Complaint RDB-16-cv-954)(krs, Deputy Clerk) (Entered: 04/05/2016)
4 NOTICE of Appearance by Damien Dorsey on behalf of All Plaintiffs (Dorsey, Damien) (Entered: 04/05/2016)
5 Correspondence from Plaintiff, Maynard Snead. (krs, Deputy Clerk) (Entered: 05/12/2016)
6 Correspondence from Anonymous Inmate at Roxbury Correctional Institution. (krs, Deputy Clerk) (Entered: 05/26/2016)
7 MOTION for Extension of Time to File an Amended Complaint and Motions to Proceed in Forma Pauperis by Anthony Blue, Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Johnny James, Tyrell Polley, Maynard Snead, Robert Wilson Responses due by 6/13/2016 (Dorsey, Damien) (Entered: 05/27/2016)
8 ORDER Granting Counsel to and including 6/10/2016, to file a status report. Signed by Judge Richard D. Bennett on 5/27/2016. (c/m and ECF 6 5/27/16)(krs, Deputy Clerk) (Entered: 05/27/2016)
9 ORDER Granting 7 Motion for Extension of Time to and including 7/5/2016. Signed by Judge Richard D. Bennett on 5/31/2016. (c/m 5/31/16) (krs, Deputy Clerk) (Entered: 05/31/2016)
10 STATUS REPORT by Anthony Blue, Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Johnny James, Tyrell Polley, Maynard Snead, Robert Wilson. (Dorsey, Damien) (Entered: 06/10/2016)
11 NOTICE of Appearance by Daniel Frank Goldstein on behalf of All Plaintiffs (Goldstein, Daniel) (Entered: 07/01/2016)
12 NOTICE of Appearance by Joshua R Treem on behalf of All Plaintiffs (Treem, Joshua) (Entered: 07/01/2016)

07/01/2016 07/05/2016 07/25/2016 07/26/2016
08/01/2016 09/06/2016 09/06/2016
09/06/2016 09/06/2016

13 Second MOTION for Extension of Time to File an Amended Complaint and Motions to Proceed in Forma Pauperis by Anthony Blue, Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Johnny James, Tyrell Polley, Maynard Snead, Robert Wilson Responses due by 7/18/2016 (Dorsey, Damien) (Entered: 07/01/2016)
14 ORDER granting 13 Motion for Extension of Time to and including 8/5/2016. Signed by Judge Richard D. Bennett on 7/5/2016. (krs, Deputy Clerk) (Entered: 07/05/2016)
15 MOTION for Extension of Time by Anthony Blue, Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Johnny James, Tyrell Polley, Maynard Snead, Robert Wilson (Treem, Joshua) Modified on 7/26/2016 (krs, Deputy Clerk). (Entered: 07/25/2016)
16 QC NOTICE: 15 Notice (Other) filed by Johnny James, Robert Wilson, Maynard Snead, Tyrell Polley, Gregory Hammond, Steven Brown, Wilbert M. Delano, Sedric Holley, Anthony Blue was filed incorrectly. **In the future please refile using "Motion for Extension of Time." There is no corrective action required at this time. (krs, Deputy Clerk) (Entered: 07/26/2016)
17 MARGINAL ORDER Granting 15 Motion for Extension of Time. Signed by Judge Richard D. Bennett on 8/1/2016. (bas, Deputy Clerk) (Entered: 08/01/2016)
18 NOTICE of Voluntary Dismissal by Anthony Blue (Goldstein, Daniel) (Entered: 09/06/2016)
19 MOTION for Leave to Proceed in forma pauperis by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Johnny James, Tyrell Polley, Maynard Snead, Robert Wilson Responses due by 9/23/2016 (Attachments: # 1 Exhibit 1 - James, # 2 Exhibit 2 - Brown, # 3 Exhibit 3 - Wilson, # 4 Exhibit 4 - Sneed, # 5 Exhibit 5 - Hopkins, # 6 Exhibit 6 - Polley, # 7 Exhibit 7 - Hammond, # 8 Exhibit 8 - Holley, # 9 Exhibit 9 - Delano)(Goldstein, Daniel) (Entered: 09/06/2016)
20 (FILED IN ERROR) AMENDED COMPLAINT against All Defendants, filed by Gregory Hammond, Steven Brown, Tyrell Polley, Sedric Holley, Anthony Blue, Robert Wilson, Wilbert M. Delano, Johnny James, Maynard Snead.(Goldstein, Daniel) Modified on 9/7/2016 (bmhs, Deputy Clerk). (Entered: 09/06/2016)
21 NOTICE of Change of Address by Daniel Frank Goldstein (Goldstein, Daniel) (Entered: 09/06/2016)

09/07/2016
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09/21/2016 10/14/2016 11/02/2016 11/03/2016 11/03/2016

22 QC NOTICE: 20 Amended Complaint filed by Johnny James, Robert Wilson, Maynard Snead, Tyrell Polley, Gregory Hammond, Steven Brown, Wilbert M. Delano, Sedric Holley, Anthony Blue needs to be corrected. It has been noted as FILED IN ERROR, and the document link has been disabled. The following corrective actions are needed regarding missing or incomplete information: **Redline copy has not been filed. Please re-file the clean version of the amended complaint as the main document and the redline version as an attachment to the amended complaint. (bmhs, Deputy Clerk) (Entered: 09/07/2016)
23 AMENDED COMPLAINT against Warden, filed by Gregory Hammond, Steven Brown, Tyrell Polley, Sedric Holley, Anthony Blue, Robert Wilson, Wilbert M. Delano, Johnny James, Maynard Snead. (Attachments: # 1 Exhibit Redline of Changed Caption)(Goldstein, Daniel) (Entered: 09/07/2016)
24 MARGINAL ORDER granting 18 Notice of Voluntary Dismissal filed by Anthony Blue. Signed by Judge Richard D. Bennett on 9/7/2016. (bmhs, Deputy Clerk) (Entered: 09/08/2016)
25 ORDER dismissing the complaint as to Anthony Blue; granting 19 Plaintiffs' Motion for Leave to Proceed in forma pauperis; directing Clerk to amend the docket to include Defendants and correct the spelling of Plaintiffs' names; and directing Clerk to transmit copies and otherwise withhold service. Signed by Judge Richard D. Bennett on 9/9/2016. (c/m 9/12/16 bmhs, Deputy Clerk) (Entered: 09/12/2016)
26 NOTICE of Appearance by Abigail Graber on behalf of All Plaintiffs (Graber, Abigail) (Entered: 09/21/2016)
27 NOTICE of Appearance by Stephanie Judith Lane Weber on behalf of All Defendants (Lane Weber, Stephanie) (Entered: 10/14/2016)
28 Consent MOTION for Extension of Time to File Answer to and including December 12, 2016 by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 11/02/2016)
29 MOTION to Amend/Correct the Caption by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Sneed, Robert Wilson(Graber, Abigail) (Entered: 11/03/2016)
30 ORDER granting 28 Motion for Extension of Time. Signed by Judge Richard D. Bennett on 11/3/2016. (c/m 11/3/16 bmhs, Deputy Clerk) (Entered: 11/03/2016)

12/12/2016 12/13/2016 01/27/2017 01/31/2017 02/10/2017 03/10/2017 03/13/2017
05/12/2017 05/15/2017

31 MOTION for Extension of Time to File Answer to and including January 27, 2017 by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 12/12/2016)
32 ORDER granting 31 Motion for Extension of Time to Answer to and including January 27, 2017.. Signed by Judge Richard D. Bennett on 12/13/2016. (c/m 12/13/16) (kr2, Deputy Clerk) (Entered: 12/13/2016)
33 MOTION for Extension of Time by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order Order)(Kelly, Teresa) (Entered: 01/27/2017)
34 ORDER granting 33 Motion for Extension of Time to and including March 15, 2017. Signed by Judge Richard D. Bennett on 1/30/2017. (c/m 1/31/17) (kr2, Deputy Clerk) (Entered: 01/31/2017)
35 RETURN PLEADING ORDER returning unfiled document to Neal F. Willey, III. Signed by Chief Judge Catherine C. Blake on 2/10/2017. (Attachments: # 1 Returned document)(kr2, Deputy Clerk) (Entered: 02/10/2017)
36 MOTION for Extension of Time to File Answer to and including May 15, 2017 by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 03/10/2017)
37 ORDER granting 36 Motion for Extension of Time to Answer Dayena M. Corcoran answer due 5/15/2017; Department of Public Safety and Correctional Services answer due 5/15/2017; Richard Miller answer due 5/15/2017; Stephen Moyer answer due 5/15/2017.. Signed by Judge Richard D. Bennett on 3/10/2017. (c/m 3/13/17) (kr2, Deputy Clerk) (Entered: 03/13/2017)
38 MOTION for Extension of Time to File Answer to and including July 17, 2017 by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 05/12/2017)
39 ORDER granting 38 Motion for Extension of Time to Answer Dayena M. Corcoran answer due 7/17/2017; Department of Public Safety and Correctional Services answer due 7/17/2017; Richard Miller answer due 7/17/2017; Stephen Moyer answer due 7/17/2017.. Signed by Judge Richard D. Bennett on 5/15/2017. (kr2, Deputy Clerk) (Entered: 05/15/2017)

07/17/2017 07/18/2017 07/20/2017 09/14/2017 09/15/2017
10/16/2017 10/17/2017 10/18/2017 10/18/2017

40 MOTION for Extension of Time to File Response/Reply to and including September 15, 2017 by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 07/17/2017)
41 ORDER Granting 40 Motion for Extension of Time. Signed by Judge Richard D. Bennett on 7/18/2017. (bas, Deputy Clerk) (Entered: 07/18/2017)
42 ORDER Granting 29 Motion to Amend the Caption. Signed by Judge Richard D. Bennett on 7/20/2017. (bas, Deputy Clerk) (Entered: 07/20/2017)
43 Consent MOTION for Extension of Time to File Answer to and including October 16, 2017 by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 09/14/2017)
44 ORDER Granting 43 Motion for Extension of Time to Answer Dayena M. Corcoran answer due 10/16/2017; Department of Public Safety and Correctional Services answer due 10/16/2017; Richard Miller answer due 10/16/2017; Stephen Moyer answer due 10/16/2017.. Signed by Judge Richard D. Bennett on 9/15/2017. (c/m 9/18/17 bas, Deputy Clerk) (Entered: 09/18/2017)
45 Consent MOTION for Extension of Time to File Answer to and including December 15, 2017 by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 10/16/2017)
46 STATUS REPORT Joint Status Report on Settlement Efforts by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer(Kelly, Teresa) (Entered: 10/17/2017)
47 NOTICE of Appearance by Eve Lynne Hill on behalf of All Plaintiffs (Hill, Eve) (Entered: 10/18/2017)
48 ORDER Granting 45 Motion for Extension of Time to Answer by Department of Public Safety and Correctional Services, Stephen Moyer, Dayena M. Corcoran and Richard Miller is extended to and including 12/15/2017. Signed by Judge Richard D. Bennett on 10/18/2017. (jb5, Deputy Clerk) Modified on 10/18/2017 (jb5, Deputy

12/15/2017
12/15/2017
12/18/2017 12/21/2017
01/05/2018 01/31/2018 02/27/2018 02/27/2018 02/27/2018 03/22/2018 04/11/2018

Clerk). Modified on 10/18/2017 (jb5, Deputy Clerk). (Entered: 10/18/2017)
49 MOTION for Extension of Time to File Answer by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 12/15/2017)
50 Status Report Submitted Supplemental Joint Status Report and Request for Referral to Magistrate Judge to Facilitate Settlement Efforts by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Kelly, Teresa) (Entered: 12/15/2017)
51 ORDER granting defendants Moyer, Corcoran and Miller is extended 10 days after referral to file a response. Signed by Judge Richard D. Bennett on 12/18/2017. (jb5, Deputy Clerk) (Entered: 12/19/2017)
52 NOTICE by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson of Withdrawal of Appearance (Goldstein, Daniel) (Entered: 12/21/2017)
53 Correspondence re: Letter from Plaintiff (jb5, Deputy Clerk) (Entered: 01/05/2018)
54 ORDER REFERRING CASE to Magistrate Judge Stephanie A Gallagher for Settlement. Signed by Judge Richard D. Bennett on 1/31/2018. (cags, Deputy Clerk) (Entered: 01/31/2018)
55 ORDER Scheduling Settlement Conference for April 17, 2018. Signed by Magistrate Judge Stephanie A Gallagher on 2/27/2018. (jb5, Deputy Clerk) (Entered: 02/28/2018)
56 Scheduling Conference held on 2/27/2018 for 15 minutes before Magistrate Judge Stephanie A Gallagher. (jb5, Deputy Clerk) (Entered: 02/28/2018)
57 MOTION for Assistance Due to Disability of Plaintiff by Maynard Snead(jb5, Deputy Clerk) (Entered: 03/01/2018)
58 Correspondence received from Robert Wilson. (bas, Deputy Clerk) (Entered: 03/22/2018)
59 ORDER denying 57 Motion for Assistance (ECF 57)due to extent it seeks appointment of counsel and is Granted to the extent appointed

04/16/2018 04/18/2018 05/07/2018
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08/03/2018 09/11/2018 09/12/2018 09/13/2018

counsel. Signed by Judge Richard D. Bennett on 4/11/2018. (jb5, Deputy Clerk)(c/m-04/11/2018) (Entered: 04/11/2018)
Telephone Conference re Settlement held on 4/16/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 04/18/2018)
Settlement Conference held on 4/18/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 04/18/2018)
60 STATUS REPORT by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson(Dorsey, Damien) (Entered: 05/07/2018)
61 Correspondence re: the need for counsel (jb5, Deputy Clerk) (Entered: 05/21/2018)
62 Correspondence from Robert Wilson re: Treatment in Correctional Facility. (Attachments: # 1 Attachments)(jb5, Deputy Clerk) (Entered: 06/19/2018)
Telephone Conference re settlement held on 7/13/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 07/17/2018)
Settlement Conference held on 7/17/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 07/17/2018)
63 PAPERLESS ORDER NOTIFYING Counsel that the settlement conference set for September 12, 2018 at 9:30 a.m. has been RESCHEDULED to commence at 10:30 a.m. Signed by Magistrate Judge Stephanie A Gallagher on 8/1/2018. (vals, Chambers) (Entered: 08/01/2018)
64 Correspondence from Maynard Snead re: Motion Filed in February(jb5, Deputy Clerk) (Entered: 08/06/2018)
65 SCHEDULING ORDER: Status Report due by 1/24/2019. Signed by Judge Richard D. Bennett on 9/11/2018(cags, Deputy Clerk) (Entered: 09/11/2018)
Settlement Conference held on 9/12/2018 before Magistrate Judge Stephanie A Gallagher. (cags, Deputy Clerk) (Entered: 09/13/2018)
66 PAPERLESS ORDER CONFIRMING that a third follow up settlement conference has been scheduled for October 3, 2018 at 10:00 a.m.

09/25/2018 10/01/2018 10/19/2018 10/24/2018 10/26/2018 10/30/2018 11/01/2018 11/02/2018 11/07/2018 11/07/2018

Signed by Magistrate Judge Stephanie A Gallagher on 9/13/2018. (vals, Chambers) (Entered: 09/13/2018)
67 STATUS REPORT Joint Status Report by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer(Kelly, Teresa) (Entered: 09/25/2018)
Telephone Conference re settlement negotiations held on 10/1/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 10/03/2018)
Telephone Conference re settlement negotiations held on 10/19/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 10/19/2018)
68 Joint MOTION for Extension of Time to Amend 65 Scheduling Order Joint Request to Amend Scheduling Order (ECF 65) by Dayena M. Corcoran, Richard Miller, Stephen Moyer(Kelly, Teresa) (Entered: 10/24/2018)
Telephone Conference re settlement negotiations held on 10/26/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 10/29/2018)
69 MARGINAL ORDER Granting 68 Joint Request to Amend Scheduling Order. Signed by Judge Richard D. Bennett on 10/29/2018. (bas, Deputy Clerk) (Entered: 10/31/2018)
Telephone Conference re settlement negotiations held on 11/1/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 11/07/2018)
Telephone Conference re settlement negotiations held on 11/2/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 11/07/2018)
70 MOTION for Protective Order Executed Stipulated Protective Order by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer(Kelly, Teresa) (Entered: 11/07/2018)
Telephone Conference re settlement negotiations held on 11/7/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 11/07/2018)

11/14/2018 11/20/2018 11/28/2018 11/29/2018
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12/13/2018 12/14/2018 12/14/2018 12/14/2018

Telephone Conference RE Settlement Negotiations held on 11/14/2018 before Magistrate Judge Stephanie A Gallagher. (ds3, Deputy Clerk) (Entered: 11/14/2018)
Telephone Conference held on 11/20/2018 before Magistrate Judge Stephanie A Gallagher. (bmhs, Deputy Clerk) (Entered: 11/21/2018)
Telephone Conference re settlement negotiations held on 11/28/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 11/28/2018)
71 MOTION to Expedite Motion for An Expedited Briefing Schedule on Plaintiffs' Motion to Compel Responses to Interrogatories and Production of Documents by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson(Hill, Eve) (Entered: 11/29/2018)
Telephone Conference held on 12/6/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 12/07/2018)
72 NOTICE of Appearance by Jessica Paulie Weber on behalf of All Plaintiffs (Weber, Jessica) (Entered: 12/07/2018)
73 RESPONSE in Opposition re 71 MOTION to Expedite Motion for An Expedited Briefing Schedule on Plaintiffs' Motion to Compel Responses to Interrogatories and Production of Documents filed by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer. (Attachments: # 1 Exhibit Email with attach;ments)(Lane Weber, Stephanie) (Entered: 12/13/2018)
Telephone Conference re settlement negotiations held on 12/13/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 12/14/2018)
74 MOTION for Reconsideration Motion to Reconsider and Modify the Scheduling Order (ECF 65) by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer(Kelly, Teresa) (Entered: 12/14/2018)
75 Correspondence Correcting Earlier Submission: 74 Motion for Reconsideration (Kelly, Teresa) (Entered: 12/14/2018)
76 NOTICE to Take Deposition of Steven Brown (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 12/14/2018)

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77 NOTICE to Take Deposition of Johnny James (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 12/14/2018)
78 NOTICE to Take Deposition of Maynard Snead (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 12/14/2018)
79 NOTICE to Take Deposition of Neal Willey, III (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 12/14/2018)
80 NOTICE to Take Deposition of Robert Wilson (Attachments: # 1 Text of Proposed Order)(Kelly, Teresa) (Entered: 12/14/2018)
81 RESPONSE in Opposition re 74 MOTION for Reconsideration Motion to Reconsider and Modify the Scheduling Order (ECF 65) filed by Anthony Blue, Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson.(Hill, Eve) (Entered: 12/17/2018)
82 Local Rule 104.7 Certificate (Attachments: # 1 Exhibit A, # 2 Attachment Ex. 1, # 3 Attachment Ex. 2, # 4 Attachment Ex. 3 Holley ROGs, # 5 Attachment Ex. 4 - Delano ROGs, # 6 Attachment Ex. 5 - Wilson ROGs, # 7 Attachment Ex. 6 - Brown ROGs, # 8 Attachment Ex. 7 - Snead ROGs, # 9 Attachment Ex. 8 - Polley ROGs, # 10 Attachment Ex. 9 - Hammond ROGs, # 11 Attachment Ex. 10 - Hopkins ROGs, # 12 Attachment Ex. 11 - James RFPs, # 13 Attachment Ex. 12 - Brown RFPs, # 14 Attachment Ex. 13 Snead RFPs, # 15 Attachment Ex. 14 - Hammond RFPs, # 16 Attachment Ex. 15 - Hopkins RFPs, # 17 Attachment Ex. 16 - Brown Ans, # 18 Attachment Ex. 17 - Pls, # 19 Attachment Ex. 18 - Base File Docs re Kitchen, # 20 Attachment Ex. 19 - Proof of Housing, # 21 Exhibit B, # 22 Attachment Ex. B - Final OMTC - A, # 23 Attachment Ex. B Final OMTC - B, # 24 Attachment Ex. B - Final OMTC - C, # 25 Exhibit C)(Hill, Eve) (Entered: 12/18/2018)
83 RESPONSE re 81 Response in Opposition to Motion, Response in Opposition to Defendants' Motion to Reconsider and Modify the Scheduling Order (ECF 65) filed by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer.(Kelly, Teresa) (Entered: 12/19/2018)
Telephone Conference re Settlement Negotiations held on 12/19/2018 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 12/26/2018)
84 PROTECTIVE/CONFIDENTIALITY ORDER. Signed by Judge Richard D. Bennett on 12/20/2018. (hmls, Deputy Clerk) (Entered: 12/20/2018)

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12/26/2018
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85 ORDER REFERRING CASE to Magistrate Judge Beth P. Gesner for all discovery, including pending motion to compel. Signed by Judge Richard D. Bennett on 12/21/2018. (jnls, Deputy Clerk) (Entered: 12/21/2018)
Telephone Status/Scheduling Conference held on 12/21/2018 before Judge Richard D. Bennett. NOT on the record. (hmls, Deputy Clerk) (Entered: 12/21/2018)
86 AMENDED SCHEDULING ORDER: Status Report due by 3/1/2019. Signed by Judge Richard D. Bennett on 12/21/2018. (jnls, Deputy Clerk) (Entered: 12/21/2018)
87 (FILED IN ERROR and re-filed per counsel) MOTION for Order Establishing Protocol for Discovery of Electronically Stored Information by Anthony Blue, Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson(Hill, Eve) Modified on 12/27/2018 (dass, Deputy Clerk). (Entered: 12/26/2018)
88 MOTION for Order Establishing Protocol for Discovery of Electronically Stored Information by Anthony Blue, Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Hill, Eve) (Entered: 12/26/2018)
89 Request for Conference (Weber, Jessica) (Entered: 01/02/2019)
Telephone Conference re settlement negotiations held on 1/3/2019 before Magistrate Judge Stephanie A Gallagher. (dass, Deputy Clerk) (Entered: 01/03/2019)
90 ORDER scheduling teleconference re discovery. Signed by Magistrate Judge Beth P. Gesner on 1/3/2019. (dass, Deputy Clerk) (Entered: 01/04/2019)
91 Consent MOTION to Take Deposition from Neil F. Willey, III by Anthony Blue, Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson(Hill, Eve) (Entered: 01/04/2019)
92 PAPERLESS ORDER granting 91 Motion to Take Deposition. Signed by Magistrate Judge Beth P. Gesner on 1/4/2019. (dwcs, Chambers) (Entered: 01/04/2019)

01/04/2019

93 ORDER granting 80 Consent Motion to Take Oral Deposition of Robert Wilson Signed by Judge Richard D. Bennett on 1/4/2019. (jb5, Deputy Clerk) Modified on 1/7/2019 (jnls, Deputy Clerk). (Entered: 01/07/2019)

01/04/2019

94 ORDER granting 91 Consent Motion to Take Oral Depositions of Incarcerated Witness Neil F. Willey, III filed by Johnnie James, Maynard Snead, Robert Wilson, Tyrell Polley, Gregory Hammond, Steven Brown, Wilbert M. Delano, Sedric Holley, Anthony Blue, Russell Hopkins. Signed by Judge Richard D. Bennett on 1/4/2019. (jb5, Deputy Clerk) Modified on 1/7/2019 (jnls, Deputy Clerk). (Entered: 01/07/2019)

01/04/2019

95 ORDER granting 77 Consent Motion to Take Oral Depositions of Incarcerated Witness Johnny James Signed by Judge Richard D. Bennett on 1/4/2019. (jb5, Deputy Clerk) Modified on 1/7/2019 (jnls, Deputy Clerk). (Entered: 01/07/2019)

01/04/2019

96 ORDER granting 76 Consent Motion to Take Oral Deposition of Steven Brown Signed by Judge Richard D. Bennett on 1/4/2019. (jb5, Deputy Clerk) Modified on 1/7/2019 (jnls, Deputy Clerk). (Entered: 01/07/2019)

01/04/2019

97 ORDER granting 78 Consent Motion to Take Oral Deposition of Maynard Snead . Signed by Judge Richard D. Bennett on 1/4/2019. (jb5, Deputy Clerk) Modified on 1/7/2019 (jnls, Deputy Clerk). (Entered: 01/07/2019)

01/04/2019

98 ORDER granting 79 Consent Motion to Take Oral Deposition of Neal F. Willey III. Signed by Judge Richard D. Bennett on 1/4/2019. (jb5, Deputy Clerk) Modified on 1/7/2019 (jnls, Deputy Clerk). (Entered: 01/07/2019)

01/09/2019

99 Consent MOTION for Discovery CONSENT TO REVISED ORDER FOR ESI by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Lane Weber, Stephanie) (Entered: 01/09/2019)

01/09/2019

Telephone Conference re Discovery held on 1/9/2019 before Magistrate Judge Beth P. Gesner. (dass, Deputy Clerk) (Entered: 01/10/2019)

01/10/2019

100 MOTION to Dismiss Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Memorandum in Support)(Lane Weber, Stephanie) (Entered: 01/10/2019)

01/10/2019

101 ORDER advising counsel of the discovery dispute procedure. Signed by Magistrate Judge Beth P. Gesner on 1/10/2019. (jb5, Deputy Clerk) (Entered: 01/10/2019)

01/10/2019

102 ORDER confirming the results of the discovery telephone conference held on the 9th of January 2019. Signed by Magistrate Judge Beth P. Gesner on 1/10/2019. (jb5, Deputy Clerk) (Entered: 01/10/2019)

01/10/2019

103 ORDER granting 99 Motion for Discovery and terminating ECF 88 . Signed by Magistrate Judge Beth P. Gesner on 1/10/2019. (jb5, Deputy Clerk) (Entered: 01/10/2019)

01/11/2019

104 FILED IN ERROR-Rule 12/56 letter mailed to Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (jb5, Deputy Clerk) (Entered: 01/11/2019)

01/11/2019

105 FILED IN ERROR-Rule 12/56 letter mailed to Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead (jb5, Deputy Clerk) (Entered: 01/11/2019)

01/14/2019

106 NOTICE of Appearance by James T Fetter on behalf of Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Fetter, James) (Entered: 01/14/2019)

01/15/2019

107 (WITHDRAWN per 120 Order) MOTION for Extension of Time to Respond to Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint by Anthony Blue, Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Weber, Jessica) Modified on 1/30/2019 (dass, Deputy Clerk). (Entered: 01/15/2019)

01/16/2019 108 Correspondence re: Discovery: Confidentiality of non-party inmate case records (Lane Weber, Stephanie) (Entered: 01/16/2019)

01/16/2019

109 RESPONSE in Opposition re 107 MOTION for Extension of Time to Respond to Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint filed by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer. (Attachments: # 1 Exhibit Email, # 2 Text of Proposed Order)(Lane Weber, Stephanie) (Entered: 01/16/2019)

01/17/2019 110 RESPONSE in Support re 107 MOTION for Extension of Time to Respond to Defendants' Motion to Dismiss Plaintiffs' First Amended

Complaint filed by Anthony Blue, Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson.(Weber, Jessica) (Entered: 01/17/2019)

01/22/2019 111 Correspondence re: response to Defendants' January 16, 2019 letter, ECF No. 108 (Weber, Jessica) (Entered: 01/22/2019)

01/24/2019

Minute Order. Proceedings held before Judge Richard D. Bennett (NOT on the record): Telephone Conference held on 1/24/2019 with counsel for 25 minutes. (jb5, Deputy Clerk) (Entered: 01/24/2019)

01/24/2019 112 ORDER granting plaintiffs request for information regarding non-party blind inmates at RCI and ECI. Signed by Judge Gesner on 1/24/2019. (jb5, Deputy Clerk) (Entered: 01/24/2019)

01/24/2019 113 Joint Correspondence re: Discovery dispute about disclosure of mental health care records (Lane Weber, Stephanie) (Entered: 01/24/2019)

01/24/2019

114 RESPONSE in Opposition re 100 MOTION to Dismiss Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint filed by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson.(Weber, Jessica) (Entered: 01/24/2019)

01/25/2019

115 -SEALED- MOTION to Seal by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Exhibit A)(Weber, Jessica) (Entered: 01/25/2019)

01/25/2019 116 Correspondence re: Discovery dispute about medical record subpoenss (Lane Weber, Stephanie) (Entered: 01/25/2019)

01/25/2019

117 -SEALED- MOTION to Seal Defendants' Letter, ECF #116 by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson(Weber, Jessica) (Entered: 01/25/2019)

01/28/2019

118 -SEALED-MARGINAL ORDER granting 115 Motion to Seal Letter. Signed by Judge Richard D. Bennett on 1/28/2019. (dass, Deputy Clerk) (c/em 1/29/18-das) (Entered: 01/29/2019)

01/28/2019

119 -SEALED- MARGINAL ORDER granting 117 Motion to Seal Letter. Signed by Judge Richard D. Bennett on 1/28/2019. (dass, Deputy Clerk) (c/m 1/29/19-das) (Entered: 01/29/2019)

01/28/2019

120 ORDER confirming telephone conference of January 24, 2019 pursuant to which Plaintiffs' counsel has WITHDRAWN their Motion for Extension of Time to Respond to Defendants' Motion to Dismiss (ECF#110); directing the Scheduling Order as set forth in the Letter Order of December 21, 2018 (ECF#86) remains operative with the twoweek jury trial in this casescheduled for April 22, 2019. Signed by Judge Richard D. Bennett on 1/24/2019. (Originally filed 1/24/19)(dass, Deputy Clerk) (Entered: 01/30/2019)

01/30/2019

121 ORDER granting defendants' request re discovery matter; setting deadline for defendants to prepare and file a proposed order under seal. Signed by Magistrate Judge Beth P. Gesner on 1/30/2019. (dass, Deputy Clerk) (Entered: 01/31/2019)

01/31/2019

122 -SEALED-RESPONSE re 121 Order LINE submitting proposed orders for mental health records filed by Stephen Moyer, Dayena M. Corcoran, Richard Miller, Department of Public Safety and Correctional Services. (Attachments: # 1 Text of Proposed Order re: Delano records, # 2 Text of Proposed Order re Hammond records, # 3 Text of Proposed Order re Holley records)(Lane Weber, Stephanie) (Entered: 01/31/2019)

02/01/2019

123 ORDER closing cases 16-946, 16-947, 16-948, 16-949, 16-950, 16951, 16-952, 16-953, and 16-954. Signed by Judge Richard D. Bennett on 2/1/2019. Associated Cases: 1:16-cv-00945-RDB et al.(dass, Deputy Clerk) (Entered: 02/01/2019)

02/04/2019

124 -SEALED-ORDER directing production of records. Signed by Magistrate Judge Beth P. Gesner on 2/4/2019. (dass, Deputy Clerk) (c/em 2/4/19-das) (Entered: 02/04/2019)

02/04/2019

125 -SEALED-ORDER directing production of records. Signed by Magistrate Judge Beth P. Gesner on 2/4/2019. (dass, Deputy Clerk) (c/em 2/4/19-das) (Entered: 02/04/2019)

02/04/2019

126 -SEALED-ORDER directing production of records. Signed by Magistrate Judge Beth P. Gesner on 2/4/2019. (dass, Deputy Clerk) (c/em 2/4/19-das) (Entered: 02/04/2019)

02/07/2019

127 REPLY to Response to Motion re 100 MOTION to Dismiss Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint filed by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer.(Lane Weber, Stephanie) (Entered: 02/07/2019)

02/12/2019 128 Correspondence re: request for resolution of a discovery dispute (Lane Weber, Stephanie) (Entered: 02/12/2019)

02/13/2019 129 Correspondence re: Discovery Dispute (Weber, Jessica) (Entered: 02/13/2019)

02/13/2019

130 -SEALED- INFORMAL DISCOVERY LETTER re Mental Health examinations by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Exhibit Snead's Answers to Int, # 2 Exhibit Delano's Answers to Int, # 3 Exhibit Hopkin's Answers to Int, # 4 Exhibit Polley's Answers to Int, # 5 Exhibit Jame's Answers to Int., # 6 Exhibit Brown's Answers to Int, # 7 Exhibit Holley's Answers to Int, # 8 Exhibit Wilson's Answers to Int, # 9 Exhibit Dr. Niel Blumberg CV)(Lane Weber, Stephanie) Modified on 2/14/2019 (dass, Deputy Clerk). (Entered: 02/13/2019)

02/13/2019

131 MOTION to Seal Informal Discovery Letter by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Lane Weber, Stephanie) (Entered: 02/13/2019)

02/13/2019 132 Correspondence re: Exhibit 1 to ECF Doc#129 (Weber, Jessica) (Entered: 02/13/2019)

02/14/2019

133 Sealed Document re corrected exhibit 6 to ECF 130 Informal Discovery Letter (Lane Weber, Stephanie) Modified on 2/14/2019 (dass, Deputy Clerk). (Entered: 02/14/2019)

02/15/2019

134 ORDER Denying Defendant's request for Plaintiff to undergo mental examinations and psychological testing. Signed by Magistrate Judge Beth P. Gesner on 2/15/2019. (kw2s, Deputy Clerk) (Entered: 02/15/2019)

02/19/2019

135 ORDER granting 131 Motion to Seal Discovery Letter and Exhibits. Signed by Magistrate Judge Beth P. Gesner on 2/19/2019. (dass, Deputy Clerk) (Entered: 02/19/2019)

02/25/2019

136 -SEALED- APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Exhibit Feb 15, 2019 memorandum, # 2 Exhibit Feb 13, 2019 letter to Mag.Judge, # 3 Exhibit Deposition excerpts)(Lane Weber, Stephanie) (Entered: 02/25/2019)

02/25/2019

137 MOTION to Seal Rule 35 Objections by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Lane Weber, Stephanie) (Entered: 02/25/2019)

02/26/2019

138 ORDER granting 137 Motion to Seal Objections and Exhibits. Signed by Judge Richard D. Bennett on 2/26/2019. (dass, Deputy Clerk) (Entered: 02/26/2019)

03/01/2019

139 STATUS REPORT (JOINT re DISCOVERY by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer(Lane Weber, Stephanie) (Entered: 03/01/2019)

03/04/2019

Telephone Conference re: U.S. Marshals staffing issues with trial date, held on 3/4/2019 before Judge Richard D. Bennett. (dass, Deputy Clerk) (Entered: 03/04/2019)

03/04/2019

140 ORDER confirming telephone conference with respect to an issue raised by the U.S. Marshals Service and trial date. Signed by Judge Richard D. Bennett on 3/4/2019. (dass, Deputy Clerk) (Entered: 03/04/2019)

03/05/2019

141 MOTION for Sanctions Under Rule 37(b)(2) by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Hill, Eve) (Entered: 03/05/2019)

03/05/2019

142 Joint Correspondence re: Resolution of Discovery Dispute (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Hill, Eve) (Entered: 03/05/2019)

03/06/2019

143 Correspondence re: Discovery Dispute (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G)(Hill, Eve) (Entered: 03/06/2019)

03/06/2019 144 Correspondence re: discovery dispute (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Lane Weber, Stephanie) (Entered: 03/06/2019)

03/07/2019

145 Amended MOTION for Sanctions Under Rule 37(b)(2) by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Exhibit 1, Declaration of Jessica P. Weber, # 2 Attachment A to Weber Declaration, # 3 Text of Proposed Order)(Weber, Jessica) (Entered: 03/07/2019)

03/08/2019

146 ORDER scheduling hearing re discovery dispute filings and motion(s) for Sanctions; setting response deadline re 141 Revised Motion for Sanctions. Signed by Magistrate Judge Beth P. Gesner on 3/8/2019. (dass, Deputy Clerk) (Entered: 03/11/2019)

03/11/2019

147 RESPONSE to Motion re 145 Amended MOTION for Sanctions Under Rule 37(b)(2) filed by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer.(Lane Weber, Stephanie) (Entered: 03/11/2019)

03/11/2019 148 Correspondence re: Subia Unavailability (Hill, Eve) (Entered: 03/11/2019)

03/11/2019

149 MOTION to Seal by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Hill, Eve) (Entered: 03/11/2019)

03/11/2019

150 Motion Hearing held on 3/11/2019 re 145 Amended MOTION for Sanctions Under Rule 37(b)(2) filed by Johnnie James, Maynard Snead, Robert Wilson, Tyrell Polley, Gregory Hammond, Steven Brown, Wilbert M. Delano, Sedric Holley, Russell Hopkins, 141 MOTION for Sanctions Under Rule 37(b)(2) filed by Johnnie James, Maynard Snead, Robert Wilson, Tyrell Polley, Steven Brown, Gregory Hammond, Wilbert M. Delano, Russell Hopkins, Sedric Holley before Magistrate Judge Beth P. Gesner.(FTR Gold) (stds, Deputy Clerk) (Entered: 03/12/2019)

03/12/2019

151 QC NOTICE re: Plaintiffs' 149 Motion to Seal Opposition to Defendants' Objections. ** Motion references an "attached memorandum". There was no attachment filed with the motion. Please file the attachment using the event "Notice of Filing Exhibit or Attachment Under Seal" found in Other Filings - Notices, and link the sealed attachment to 149 motion. (dass, Deputy Clerk) (Entered: 03/12/2019)

03/12/2019

152 -SEALED - NOTICE of Filing Under Seal Plaintiffs' Opposition to Defendants' Objections re Rule 35 Exam by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson re 149 MOTION to Seal (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Hill, Eve) (Entered: 03/12/2019)

03/12/2019

153 MEMORANDUM AND ORDER confirming results of motions hearing held 3/11/19; denying 145 Revised Motion for Sanctions; summarizing further action to be taken by each party as to each discovery request set forth. Signed by Magistrate Judge Beth P. Gesner on 3/12/2019. (dass, Deputy Clerk) (Entered: 03/12/2019)

03/12/2019

154 ORDER granting 149 Motion to Seal Plaintiffs' 152 Opposition to Defendants' Objections. Signed by Judge Richard D. Bennett on 3/12/2019. (dass, Deputy Clerk) (Entered: 03/12/2019)

03/13/2019

155 NOTICE of Appearance by Lisa O Mara Arnquist on behalf of Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Arnquist, Lisa) (Entered: 03/13/2019)

03/13/2019

156 (FILED IN ERROR per counsel- refiled) Correspondence re: discovery supplements (Lane Weber, Stephanie) Modified on 3/13/2019 (dass, Deputy Clerk). (Entered: 03/13/2019)

03/13/2019 157 Correspondence re: discovery dispute (Attachments: # 1 Exhibit Exh. A.)(Lane Weber, Stephanie) (Entered: 03/13/2019)

03/13/2019 158 Correspondence re: discovery dispute (Graber, Abigail) (Entered: 03/13/2019)

03/14/2019

159 MOTION for Leave to File Excess Pages by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Hill, Eve) (Entered: 03/14/2019)

03/14/2019 160 Correspondence re: Subia testimony, in response to ECF 148 (Lane Weber, Stephanie) (Entered: 03/14/2019)

03/14/2019

161 ORDER granting 159 Motion for Leave to File Excess Pages. Signed by Judge Richard D. Bennett on 3/14/2019. (dass, Deputy Clerk) (Entered: 03/14/2019)

03/15/2019

162 Joint MOTION for Extension of Time for Filing Proposed Pretrial Order by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Hill, Eve) (Entered: 03/15/2019)

03/15/2019

163 ORDER directing parties meet and confer regarding all outstanding objections on the basis of privilege; directing if the parties are unable to reach an agreement, plaintiffs are to bring these issues to Judge's attention in the form of a motion to compel, as set forth. Signed by Magistrate Judge Beth P. Gesner on 3/15/2019. (dass, Deputy Clerk) (Entered: 03/15/2019)

03/18/2019

164 (WITHDRAWN PER 231 ORDER) MOTION for Writ of Habeas Corpus ad testificandum by Anthony Blue (Attachments: # 1 Text of Proposed Order)(Dorsey, Damien) Modified on 5/14/2019 (dass, Deputy Clerk). (Entered: 03/18/2019)

03/18/2019

165 (WITHDRAWN PER 231 ORDER) MOTION for Writ of Habeas Corpus ad testificandum by Anthony Blue, Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Dorsey, Damien) Modified on 5/14/2019 (dass, Deputy Clerk). (Entered: 03/18/2019)

03/18/2019

166 (WITHDRAWN PER 231 ORDER) MOTION for Writ of Habeas Corpus ad testificandum by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Dorsey, Damien) Modified on 5/14/2019 (dass, Deputy Clerk). (Entered: 03/18/2019)

03/18/2019

167 (WITHDRAWN PER 231 ORDER) MOTION for Writ of Habeas Corpus ad testificandum by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Dorsey, Damien) Modified on 5/14/2019 (dass, Deputy Clerk). (Entered: 03/18/2019)

03/18/2019

168 Consent MOTION for Leave to File Excess Pages by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Lane Weber, Stephanie) (Entered: 03/18/2019)

03/18/2019

169 -SEALED- MOTION for Summary Judgment by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Memorandum in Support)(Arnquist, Lisa) (Entered: 03/18/2019)

03/18/2019

170 MOTION to Seal Motion for Summary Judgement and Attachments by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Arnquist, Lisa) (Entered: 03/18/2019)

03/18/2019

171 MOTION to Seal Summary Judgment by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Hill, Eve) (Entered: 03/18/2019)

03/18/2019

172 SEALED Motion for Partial Summary Judgment by Plaintiffs. (Attachments: # 1 Memorandum in Support)(Hill, Eve) Modified on 3/19/2019 (dass, Deputy Clerk). (Entered: 03/18/2019)

03/19/2019 173 Sealed Document- Exhibits to Plaintiffs' Memorandum in Support of Sealed Motion for Partial Summary Judgment (Attachments:

# 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87)(Hill, Eve) Modified on 3/19/2019 (dass, Deputy Clerk). (Entered: 03/19/2019)

03/19/2019

174 Sealed Document- Exhibits to Plaintiffs' Memorandum in Support of Sealed Motion for Partial Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit B-102, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit D-124, # 7 Exhibit E, # 8 Exhibit E-5, # 9 Exhibit E-94, # 10 Exhibit F, # 11 Exhibit G, # 12 Exhibit G-102, # 13 Exhibit G-107, # 14 Exhibit G-108, # 15 Exhibit G-110, # 16 Exhibit H, # 17 Exhibit I, # 18 Exhibit I-2, # 19 Exhibit I-3, # 20 Exhibit I-5, # 21 Exhibit I-7, # 22 Exhibit I-10, # 23 Exhibit I-17, # 24 Exhibit J, # 25 Exhibit J-77, # 26 Exhibit J-78, # 27 Exhibit K, # 28 Exhibit K-33, # 29 Exhibit K-36, # 30 Exhibit K-40, # 31 Exhibit K-41, # 32 Exhibit K-56, # 33 Exhibit K-123, # 34 Exhibit L, # 35 Exhibit M, # 36 Exhibit M-96, # 37 Exhibit N, # 38 Exhibit N-27, # 39 Exhibit O, # 40 Exhibit P, # 41 Exhibit Q, # 42 Exhibit R, # 43 Exhibit S, # 44 Exhibit T, # 45 Exhibit U, # 46 Exhibit P-135, # 47 Exhibit V, # 48 Exhibit W, # 49 Exhibit X, # 50 Exhibit Y, # 51 Exhibit Z, # 52 Exhibit Z-63, # 53 Exhibit Z-67, # 54 Exhibit Z64, # 55 Exhibit AA, # 56 Exhibit AA-149, # 57 Exhibit AA-151, # 58 Exhibit BB, # 59 Exhibit CC, # 60 Exhibit DD, # 61 Exhibit EE116)(Hill, Eve) Modified on 3/19/2019 (dass, Deputy Clerk). (Entered: 03/19/2019)

03/19/2019

175 Paperless ORDER granting 168 Motion for Leave to File Excess Pages. Signed by Judge Richard D. Bennett on 3/19/2019. (Entered: 03/19/2019)

03/19/2019

176 Paperless ORDER granting 170 Motion to Seal; granting 171 Motion to Seal. Signed by Judge Richard D. Bennett on 3/19/2019. (Entered: 03/19/2019)

03/19/2019

177 QC NOTICE re: 172 SEALED DOCUMENT. **Incorrect event used. When filing a sealed motion, you must select the MOTION event, then follow prompts to click the sealed radio button. Please note for future. The Clerk was able to make corrections in this instance. (dass, Deputy Clerk) (Entered: 03/19/2019)

03/19/2019

178 -SEALED-Corrected MOTION for Summary Judgment (with EXHIBITS) by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30)(Arnquist, Lisa) (Entered: 03/19/2019)

03/25/2019

179 Joint MOTION for Leave to File Excess Pages by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Weber, Jessica) (Entered: 03/25/2019)

03/25/2019

180 ORDER granting Parties' 179 Joint Motion for Leave to File Additional Pages as set forth. Signed by Judge Richard D. Bennett on 3/25/2019. (dass, Deputy Clerk) (Entered: 03/25/2019)

03/25/2019

181 MOTION to Seal Plaintiffs' Opposition to Defendants' Summary Judgment Motion by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Weber, Jessica) (Entered: 03/25/2019)

03/25/2019

182 -SEALED-RESPONSE in Opposition re 178 Corrected MOTION for Summary Judgment (with EXHIBITS) filed by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson. (Attachments: # 1 Attachment Exhibit Index, # 2 Exhibit 1, # 3 Exhibit

2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42)(Weber, Jessica) (Entered: 03/25/2019)

03/25/2019

183 -SEALED-RESPONSE in Opposition re 172 MOTION for Partial Summary Judgment filed by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit, # 36 Exhibit, # 37 Exhibit, # 38 Exhibit, # 39 Exhibit, # 40 Exhibit, # 41 Exhibit)(Arnquist, Lisa) (Entered: 03/25/2019)

03/25/2019

184 MOTION to Seal Response to Plaintiffs Motion for Partial Summary Judgment by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Arnquist, Lisa) (Entered: 03/25/2019)

03/26/2019

185 ORDER granting Plantiffs' 181 Motion to Seal their Response in Opposition to Defendants' Motion for Summary Judgment along with exhibits thereto. Signed by Judge Richard D. Bennett on 3/26/2019. (dass, Deputy Clerk) (Entered: 03/26/2019)

03/26/2019

186 ORDER granting Defendants' 184 Motion to Seal their Response to Plaintiffs' Motion for Partial Summary Judgment. Signed by Judge Richard D. Bennett on 3/26/2019. (dass, Deputy Clerk) (Entered: 03/26/2019)

03/29/2019

187 ORDER granting Parties' 162 Joint Motion for Extension of Deadline for Filing Proposed Pretrial Order. Signed by Judge Richard D. Bennett on 3/29/2019. (dass, Deputy Clerk) (Entered: 03/29/2019)

03/29/2019

188 -SEALED-REPLY to Response to Motion re 178 Corrected MOTION for Summary Judgment (with EXHIBITS) filed by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller,

Stephen Moyer. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit)(Arnquist, Lisa) (Entered: 03/29/2019)

03/29/2019

189 MOTION to Seal Reply Memorandum in Support of Defendants Motion for Summary Judgment by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Arnquist, Lisa) (Entered: 03/29/2019)

03/29/2019

190 MOTION to Seal Reply in Support of Plaintiffs' Motion for Partial Summary Judgment by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Weber, Jessica) (Entered: 03/29/2019)

03/29/2019

191 -SEALED-REPLY to Response to Motion re 172 MOTION for Partial Summary Judgment filed by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson. (Attachments: # 1 Attachment Exhibit List, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9)(Weber, Jessica) (Entered: 03/29/2019)

04/01/2019

192 MOTION for Leave to File Excess Pages by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Arnquist, Lisa) (Entered: 04/01/2019)

04/01/2019

193 ORDER granting 190 Motion to Seal Reply in Support of Plaintiffs' Motion for Partial Summary Judgment. Signed by Judge Richard D. Bennett on 4/1/2019. (dass, Deputy Clerk) (Entered: 04/01/2019)

04/01/2019

194 ORDER granting 189 Motion to Seal Reply Memorandum in Support of Defendants Motion for Summary Judgment. Signed by Judge Richard D. Bennett on 4/1/2019. (dass, Deputy Clerk) (Entered: 04/01/2019)

04/01/2019

195 ORDER granting 192 Motion for Leave to File Excess Pages. Signed by Judge Richard D. Bennett on 4/1/2019. (dass, Deputy Clerk) (Entered: 04/01/2019)

04/02/2019 196 NOTICE of Appearance by Robert A Scott on behalf of All Defendants (Scott, Robert) (Entered: 04/02/2019)

04/03/2019 197 NOTICE of Appearance by Jennifer L. Katz on behalf of All Defendants (Katz, Jennifer) (Entered: 04/03/2019)

04/03/2019 198 NOTICE of Appearance by Kirstin Lustila on behalf of All Defendants (Lustila, Kirstin) (Entered: 04/03/2019)

04/04/2019

Telephone Status Conference held on 4/4/2019 before Judge Richard D. Bennett. NOT on the record (kw2s, Deputy Clerk) (Entered: 04/04/2019)

04/04/2019 199 ORDER AMENDING the Scheduling Order. Signed by Judge Richard D. Bennett on 4/4/2019. (hmls, Deputy Clerk) (Entered: 04/04/2019)

04/09/2019 200 NOTICE of Appearance by John Mark Leovy on behalf of All Defendants (Leovy, John) (Entered: 04/09/2019)

04/16/2019

201 Sealed Document - Correspondence regarding corrections to 172 Sealed Motion for Partial Summary Judgment (Attachments: # 1 Exhibit 1 Corrected Memorandum in Support, # 2 Exhibit 2 - Redline Memorandum in Support)(Weber, Jessica) Modified on 4/16/2019 (dass, Deputy Clerk). (Entered: 04/16/2019)

04/17/2019

202 NOTICE by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson Notice of Withdrawal of Motions for Writ of Habeas Corpus Ad Testificandum Associated Cases: 1:16-cv-00945RDB et al.(Dorsey, Damien) (Entered: 04/17/2019)

04/23/2019

203 NOTICE by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Hill, Eve) (Entered: 04/23/2019)

04/23/2019

204 NOTICE of Appearance by Michael O Connor Doyle on behalf of Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Doyle, Michael) (Entered: 04/23/2019)

04/24/2019

205 Motion Hearing held on 4/24/2019 before Judge Richard D. Bennett re 172 MOTION for Partial Summary Judgment filed by Plaintiffs, 100 MOTION to Dismiss Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint and 178 Corrected MOTION for Summary Judgment (with EXHIBITS) filed by Richard Miller, Department of Public Safety and Correctional Services, Dayena M. Corcoran, Stephen Moyer. (Court Reporter: Patricia Mitchell) (ds2s, Deputy Clerk) (Entered: 04/24/2019)

04/24/2019 206 EXHIBIT LIST. (Attachments: # 1 Stipulation Regarding Return of Exhibits)(jb5, Deputy Clerk) (Entered: 04/25/2019)

04/26/2019

207 MOTION for Leave to File A Surreply by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Hill, Eve) (Entered: 04/26/2019)

04/30/2019

208 MOTION to Substitute Party Robert L. Green for Defendant Stephen Moyer by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Graber, Abigail) (Entered: 04/30/2019)

05/06/2019

209 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 4/24/2019, before Judge Richard D. Bennett. Court Reporter Patricia Mitchell, Telephone number 410-962-3858. Total number of pages filed: 157. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 5/28/2019. Redacted Transcript Deadline set for 6/6/2019. Release of Transcript Restriction set for 8/5/2019.Associated Cases: 1:16-cv00945-RDB et al.(pm, Court Reporter) (Entered: 05/06/2019)

05/06/2019 210 Sealed Document(pm, Court Reporter) (Entered: 05/06/2019)

05/10/2019

211 MOTION for Writ of Habeas Corpus ad testificandum by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Dorsey, Damien) (Entered: 05/10/2019)

05/10/2019

212 MOTION for Writ of Habeas Corpus ad testificandum by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Dorsey, Damien) (Entered: 05/10/2019)

05/10/2019

213 MOTION for Writ of Habeas Corpus ad testificandum by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Dorsey, Damien) (Entered: 05/10/2019)

05/10/2019

214 MOTION for Writ of Habeas Corpus ad testificandum by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Dorsey, Damien) (Entered: 05/10/2019)

05/10/2019

215 (FILED IN ERROR per attorney) MOTION for Writ of Habeas Corpus ad testificandum by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Dorsey, Damien) Modified on 5/10/2019 (dass, Deputy Clerk). (Entered: 05/10/2019)

05/10/2019

216 RESPONSE to Motion re 207 MOTION for Leave to File A Surreply filed by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer. (Attachments: # 1 Text of Proposed Order)(Scott, Robert) (Entered: 05/10/2019)

05/13/2019

217 NOTICE by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson re 214 MOTION for Writ of Habeas Corpus ad testificandum , 211 MOTION for Writ of Habeas Corpus ad testificandum , 213 MOTION for Writ of Habeas Corpus ad testificandum , 212 MOTION for Writ of Habeas Corpus ad testificandum (Attachments: # 1 Text of Proposed Order Corrected Order, # 2 Text of Proposed Order Corrected Order, # 3 Text of Proposed Order Corrected Order, # 4 Text of Proposed Order Corrected Order)(Dorsey, Damien) (Entered: 05/13/2019)

05/13/2019

218 MOTION to Seal by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Scott, Robert) (Entered: 05/13/2019)

05/13/2019

219 MOTION in Limine to Bar Plaintiffs From Admitting Information Exchanged During Settlement Discussions by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Scott, Robert) (Entered: 05/13/2019)

05/13/2019

220 MOTION in Limine to Bar Plaintiffs From Using Deposition Testimony of Non-Party Witnesses by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Scott, Robert) (Entered: 05/13/2019)

05/13/2019

221 -SEALED- MOTION in Limine to Exclude Evidence of Alleged Misconduct Occurring Outside the Statute of Limitations by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Memorandum in Support Memorandum of Law in Support of Defendants' Motion in Limine to Exclude Evidence of Alleged Misconduct Occurring Outside of the Statute of Limitations, # 2 Exhibit ADR Sedric Holley Case # RCI-0709-11, # 3 Exhibit Sedric Holley IGO Decision, # 4 Exhibit DPSCS 07/30/2012 Letter to Secretary Gary Maynard, # 5 Exhibit Wilbert Delano Supplemental Answers to Interrogatories, # 6 Text of Proposed Order)(Scott, Robert) (Entered: 05/13/2019)

05/13/2019

222 -SEALED- MOTION in Limine to Exclude Evidence Relating to a Witness's Alleged Prior Misconduct by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Memorandum in Support Memorandum of Law in Support of Defendants' Motion in Limine to Exclude Evidence Relating to a Witness's Alleged Prior Misconduct, # 2 Text of Proposed Order)(Scott, Robert) (Entered: 05/13/2019)

05/13/2019

223 MOTION in Limine to Bar Richard Subia from Testifying About Tablet Computers and Any Other Blind Assistance Technology Pursuant to Federal Rule of Evidence 702 by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Exhibit Plaintiffs' Initial Expert Disclosures, # 2 Exhibit Expert Witness Report of Richard J. Subia, # 3 Exhibit Rebuttal and Supplemental Expert Witness Report of Richard J. Subia, # 4 Exhibit Excerpts of Richard Subia's Deposition, # 5 Exhibit Resume of Richard Subia, # 6 Exhibit List of Exhibits Reviewed by Richard Subia, # 7 Exhibit Excerpts of Amy Mason's Deposition, # 8 Text of Proposed Order)(Scott, Robert) (Entered: 05/13/2019)

05/13/2019

224 MOTION in Limine to Preclude Lay Witness Testimony Concerning Plaintiffs' Visual Function by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order)(Hill, Eve) (Entered: 05/13/2019)

05/13/2019

225 -SEALED- MOTION in Limine to Bar Plaintiffs Putting on Evidence of Non-Itemized Out-of-Pocket Expenses by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Exhibit Plaintiff Steven Brown's Supplemental Answers to Interrogatories, # 2 Exhibit Plaintiff Wilbert Delano's Supplemental Answers to Interrogatories, # 3 Exhibit Plaintiff Gregory Hammond's Supplemental Answers to Interrogatories,

# 4 Exhibit Plaintiff Sedric Holley's Supplemental Answers to Interrogatories, # 5 Exhibit Plaintiff Russell Hopkins's Supplemental Answers to Interrogatories, # 6 Exhibit Plaintiff Johnny James's Supplemental Answers to Interrogatories, # 7 Exhibit Plaintiff Tyrell Polley's Supplemental Answers to Interrogatories, # 8 Exhibit Plaintiff Maynard Snead's Supplemental Answers to Interrogatories, # 9 Exhibit Plaintiff Robert Wilson's Supplemental Answers to Interrogatories, # 10 Exhibit Excerpts of Gregory Hammond's deposition, # 11 Exhibit Excerpts of Tyrell Polley's deposition, # 12 Exhibit Excerpts of Sedric Holley's deposition, # 13 Exhibit Excerpts of Russell Hopkins' deposition, # 14 Text of Proposed Order)(Scott, Robert) (Entered: 05/13/2019)

05/13/2019

226 -SEALED- MOTION in Limine to Bar Plaintiffs from Presenting Any Evidence Relating to an Incident Involving Inmate "Ghost" by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Richard Miller, Stephen Moyer (Attachments: # 1 Exhibit Excerpts of Maynard Snead's deposition, # 2 Exhibit Excerpts of 04/24/2019 Motion Hearing, # 3 Text of Proposed Order)(Scott, Robert) (Entered: 05/13/2019)

05/13/2019

227 MOTION in Limine to Preclude Evidence and Argument in Support of the Undue Burden, Fundamental Alteration, and Direct Threat Affirmative Defenses by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Text of Proposed Order)(Hill, Eve) (Entered: 05/13/2019)

05/13/2019

228 MOTION in Limine to Preclude Testimony of Casey Campbell on Matters Outside His Personal Knowledge and/or Based on Hearsay by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Hill, Eve) (Entered: 05/13/2019)

05/13/2019

229 MOTION in Limine to Exclude Evidence of Plaintiffs' Past Criminal Convictions by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Hill, Eve) (Entered: 05/13/2019)

05/13/2019 230 MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 5/13/2019. (kns, Deputy Clerk) (Entered: 05/13/2019)

05/13/2019

231 ORDER AND JUDGMENT granting Plaintiffs' Motion for Leave to File Surreply; granting Plaintiffs' Motion for Substitution; denying Plaintiffs' Motion for Partial Summary Judgment; denying as moot Defendants' Motion to Dismiss; granting in part and denying in part Defendants' Motion for Summary Judgment; withdrawing Plaintiffs' Motions for Writ of Habeas Corpus.. Signed by Judge Richard D. Bennett on 5/13/2019. (kns, Deputy Clerk) (Entered: 05/13/2019)

05/13/2019

232 SURREPLY filed by Plaintiffs to 172 MOTION for Partial Summary Judgment. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (dass, Deputy Clerk) (Entered: 05/14/2019)

05/16/2019

233 WRIT of of Habeas Corpus Ad Testificandum issued re 211 MOTION for Writ of Habeas Corpus ad testificandum. (dass, Deputy Clerk) (cc/d USMS 5/16/19-das) (Entered: 05/16/2019)

05/16/2019

234 WRIT of of Habeas Corpus Ad Testificandum issued re 212 MOTION for Writ of Habeas Corpus ad testificandum. (dass, Deputy Clerk) (cc/d USMS 5/16/19-das) (Entered: 05/16/2019)

05/16/2019

235 WRIT of of Habeas Corpus Ad Testificandum issued re 213 MOTION for Writ of Habeas Corpus ad testificandum. (dass, Deputy Clerk) (cc/d USMS 5/16/19-das) (Entered: 05/16/2019)

05/16/2019

236 WRIT of of Habeas Corpus Ad Testificandum issued re 214 MOTION for Writ of Habeas Corpus ad testificandum. (dass, Deputy Clerk) (cc/d USMS 5/16/19-das) (Entered: 05/16/2019)

05/20/2019

237 Joint MOTION to Stay by Steven Brown, Wilbert M. Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnnie James, Tyrell Polley, Maynard Snead, Robert Wilson (Attachments: # 1 Text of Proposed Order)(Weber, Jessica) (Entered: 05/20/2019)

05/21/2019

Magistrate Judge Beth P. Gesner no longer assigned to case. (dass, Deputy Clerk) (Entered: 05/21/2019)

05/22/2019 238 ORDER granting 237 Motion to Stay. Signed by Judge Richard D. Bennett on 5/22/2019. (dass, Deputy Clerk) (Entered: 05/22/2019)

06/06/2019

239 STIPULATION of Dismissal by Dayena M. Corcoran, Department of Public Safety and Correctional Services, Robert L. Green, Richard Miller(Scott, Robert) (Entered: 06/06/2019)

06/06/2019

240 MARGINAL ORDER granting 239 Stipulation of Dismissal filed by Richard Miller, Department of Public Safety and Correctional Services, Dayena M. Corcoran, Robert L. Green. Signed by Judge Richard D. Bennett on 6/6/2019. (dass, Deputy Clerk) (Entered: 06/07/2019)

 
 RELEASE AND SETTLEMENT AGREEMENT
This Release and Settlement Agreement ("Agreement") is entered this 5th day of June, 2019, between Steven Brown, Wilbert Delano, Gregory Hammond, Sedric Holley, Russell Hopkins, Johnny James, Tyrell Polley, Maynard Snead and Robert Wilson (collectively, "PLAINTIFFS" or "RELEASORS") on the one hand, and the Maryland Department of Public Safety and Correctional Services ("DPSCS"), Stephen T. Moyer, Dayena M. Corcoran and Richard Miller, former officers and/or employees of the State of Maryland in both their official and personal capacities, and Robert L. Green, Secretary of Public Safety and Correctional Services, in his official capacity only (collectively, "DEFENDANTS" or "RELEASEES") on the other hand. PLAINTIFFS and DEFENDANTS are sometimes collectively referred to herein as the "Parties" or individually referred to as a "Party."
RECITALS
WHEREAS, on or about March 30, 2016, PLAINTIFFS filed civil actions in the United States District Court for the District of Maryland against DPSCS;
WHEREAS, the civil actions filed by PLAINTIFFS were consolidated and styled as Brown et al. v. DPSCS et al., Case No. 17-cv-945-RDB (the "Lawsuit") against DEFENDANTS, in both their official and personal capacities, asserting claims for alleged violations of the federal Americans With Disabilities Act ("ADA"), Section 504 of the federal Rehabilitation Act and the Eighth and Fourteenth Amendments to the United States Constitution;
WHEREAS, DEFENDANTS deny any and all liability for the claims asserted in the Lawsuit by PLAINTIFFS but enter into this Agreement to avoid the continued expense of litigation;
WHEREAS, PLAINTIFFS and DEFENDANTS have agreed to a full and final settlement of all claims asserted in the Lawsuit on the terms provided in this Agreement;
WHEREAS, PLAINTIFFS and DEFENDANTS wish to resolve all matters in dispute between them in a mutually satisfactory manner and to terminate all past and present controversies between them; and
NOW, THEREFORE, based on the above Recitals and in consideration ofthe mutual covenants stated below and other good and valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT
1. Incorporation of Recitals
The Recitals to this Agreement are incorporated by reference herein.
2. Settlement Terms
A. Subject to the approval of the Maryland Board of Public Works and identification of available appropriated funds, as provided in sub-paragraphs (C) and (D), within fourteen 14) days after the approval by the Maryland Board of Public Works, the State of Maryland shall pay the sum of Forty Two Thousand Five Hundred Dollars $42,500.00) the "Settlement Amount") to each PLAINTIFF in a one-time payment by delivering a check made payable to each PLAINTIFF to PLAINTIFFS' counsel, Brown, Goldstein & Levy, LLP.
B. Subject to the approval of the Maryland Board of Public Works and identification of available appropriated funds, as provided in sub-paragraphs (C) and (D), within fourteen 14) days after the approval by the Maryland Board of Public Works, the State of Maryland shall pay the sum of One Million, Sixty-Two Thousand, Five Hundred Dollars ($1,062,500.00) (the "Attorneys' Fees Payment") in a one-time payment to PLAINTIFFS' counsel, Brown, Goldstein Levy, LLP, by delivering a check to Brown Goldstein & Levy.
C. DPSCS shall promptly submit this Agreement for approval to the Maryland Board of Public Works under the policies of the Board of Public Works.
D. The obligation to make the lump sum payments set forth in this Paragraph 2 is subject to approval by the Board of Public Works of Maryland. If the Board of Public Works rejects the payment of the Settlement Amount by the State of Maryland under this Agreement, or if the State provides notice to the PLAINTIFFS that it has been unable to identify funds to satisfy the Settlement Amount, this settlement Agreement between PLAINTIFFS and DEFENDANTS will immediately become null and void, and those parties will maintain all other rights, obligations and duties as though the Agreement between the PLAINTIFFS and DEFENDANTS had never been entered.
E. Upon approval of this Agreement by the Board of Public Works, DEFENDANTS shall be obligated to comply with the non-monetary terms set forth in the attached Exhibit 1 (the "Non-Monetary Term Sheet"), which is incorporated by reference herein.

Release and Settlement Agreement

Page 2 of 7

F. Within five (5) days of approval of this Agreement by the Board of Public Works, PLAINTIFFS and DEFENDANTS shall file a stipulation of dismissal, with prejudice, of the Lawsuit.
3. Release by PLAINTIFFS
Except for the obligations set forth in this Agreement and the Non-Monetary Term Sheet, each of PLAINTIFFS, in consideration of the aforesaid recitals and agreements, and other good and valuable consideration, the receipt of which is hereby acknowledged, does hereby release and forever discharge for himself, and any claiming through him, the RELEASEES, in both their official and personal capacities, and all of the RELEASEES' agents, employees, agencies, departments, directors, officers, and members, from any and all claims, contracts, complaints, demands, damages, lawsuits, obligations, promises, administrative actions, charges, and causes of action, both known and unknown, of any kind whatsoever, that PLAINTIFFS, collectively and/or individually, ever had, have now, or may have in the future, based on or relating to any act, omission or occurrence that took place prior to the date ofthis Agreement, alleged in, related to or arising from the Lawsuit; and all claims asserted in, or that could have been asserted in, the Lawsuit, including claims for attorneys' fees and costs. The parties agree, however, that this release does not preclude the PLAINTIFFS from filing a petition for writ of habeas corpus challenging DPSCS's assignment of diminution credits for job assignments they performed, and/or asserting their claims in a habeas proceeding that they should have been afforded additional diminution credits as a result of actions complained of in the Amended Complaint filed in the Lawsuit.
4. No Admission of Liability
The Parties agree that the provision and receipt of the above-mentioned consideration, the releases provided herein, and the execution of this Agreement are not to be construed as admissions of liability on the part of any Party, but instead are in full settlement of the above-referenced matters for which liability is denied and for which DEFENDANTS wish to avoid the continued expense of litigation. DEFENDANTS have denied and continue to deny all charges ofwrongdoing arising out of any of the conduct, statements, acts or omissions alleged, or that could have been alleged, in the Lawsuit, including without limitation the claim that DEFENDANTS violated the United States Constitution. This Agreement shall in no event be construed or deemed to be evidence of an admission or concession on the part of DEFENDANTS with respect to any claim or of any fault, liability, wrongdoing, or damage whatsoever.

Release and Settlement Agreement

Page 3 of 7

5.

Acknowledgment

PLAINTIFFS acknowledge that no representation of fact or opinion has been made by RELEASEES to induce this compromise with respect to the extent or nature of any injuries or damages or as to the likelihood of future complications, or recovery therefrom, and that the consideration set forth herein is solely by way of compromise of the disputed claim, and to foreclose all possibility of any future claim based upon acts, errors or omissions which occurred prior to the date of these presents, whether known or unknown, and that in determining said consideration, there has been taken into consideration the fact that unexpected consequences may result, known or unknown, and it is therefore, specifically agreed that this Agreement shall be a complete bar to all claims or suits for injuries or damages of whatsoever nature relating to, resulting, or to result, from the matters and claims related to the Lawsuit.

6. Covenant Not to Sue
PLAINTIFFS hereby covenant and agree not to sue the RELEASEES, their predecessors, successors, executors, assigns, agents, servants, employees, agencies, past and present for any claims, demands, damages, actions, causes of action or suit at law or in equity, of whatever kind or nature, whether known or unknown, suspected or unsuspected, arising out of or relating to the matters and/or claims alleged, or that could have been alleged, in the Lawsuit. The Parties agree, however, that nothing in this Settlement Agreement shall prohibit PLAINTIFFS from: a) initiating any appropriate legal proceeding in federal or Maryland state court to enforce this Agreement as set forth in the Non-Monetary Term Sheet; or (b) filing petitions for writs of habeas corpus challenging DPSCS's assignment of diminution credits for job assignments they performed, and/or asserting their claims in habeas corpus proceedings that they should have been afforded additional diminution credits as a result of actions complained of in the Amended Complaint filed in the Lawsuit.

7. Indemnification
Each PLAINTIFF covenants and agrees for himself, herself, or itself, and his, her, or its successors, administrators and assigns, to indemnify and save RELEASEES harmless if they are found to be liable to pay anyone as a result of any suit initiated by or through PLAINTIFFS, or on their behalf, demanding the same or similar damages claimed by PLAINTIFFS against RELEASEES in the Lawsuit, and to pay on behalf of RELEASEES, reasonable attorney's fees, court costs, or other reasonable costs of litigation which it may incur in any case, cross claim, or third party claim filed against it as a consequence of PLAINTIFFS filing suit against any person or entity not released herein demanding the same or similar damages claimed against RELEASEES in the Lawsuit.

Release and Settlement Agreement

Page 4 of7

Each PLAINTIFF, for himself, herself, or itself, and his, hers, or its successors, administrators and assigns, covenants and agrees to execute such instruments, documents or further assurances as may be necessary to carry out PLAINTIFFS' obligations hereunder, including the waiver or release of any verdict or judgment entered in favor of PLAINTIFFS and against someone other than RELEASEES by the amount of any verdict or judgment said person or entity obtains against RELEASEES for indemnification.
8. Entire Agreement
This Agreement, including Exhibit 1 hereto, constitutes the complete, final and entire understanding of the Parties hereto, and they shall not be bound by any terms, conditions, covenants or representations not expressly herein contained.
9. Modification
This Agreement may not be modified or changed orally, but only by an agreement in writing signed by all Parties.
10. Consultation with Counsel
The Parties represent that prior to signing this Agreement, each has read it, understood its terms and conditions, consulted with counsel, and voluntarily signed it.
11. Choice of Law
This Agreement shall be governed by, and interpreted according to, the laws of the State of Maryland without regard to conflict of laws principles.
12. Construction
This Agreement shall be construed without regard to any presumption or other rule requiring construction against the party causing the Agreement to be drafted.
13. Authority
Each individual signing this Agreement on behalf of a Party warrants that he or she has been duly authorized by said person or entity to execute this Agreement and bind said person or entity thereto.

Release and Settlement Agreement

Page 5 of 7

14. Counte1·parts
This Agreement may be executed in counterparts, each of which shall be deemed an original and all ofwhich together shall constitute one and the same agreement

IN WITNESS THEREOF, and intending to be legally bound, the Parties have caused this Agreement as ofthe date stated above.

\:!~.
Steven Brown

05/21/2019 Date

Wilbert Delano

05/21/2019 Date

GregoryHammond
~~s&-JJJ~ Russell Hopkins

05/21/2019 Date
05/21/2019 Date

05/21/2019

Date

~~

05/21/2019

Date

Tyrell Polley
~Mf_lfld ~o{
Maynard Snead

05/21/2019 Date
05/21/2019 Date

Release and Settlement Agreement

Page 6 of7

Robert Wilson

05 /2l/2019 Date

APPROVED AS TO FORM AND LEGALITY:
JessicaP. Weber. Esq. Attorneys for Plaintiffs Brown Goldstein & Levy, LLP 120 E. Baltimore. St.. Suite 1700 Baltimore, MD 2120 I
DEFENDANTS:
/
Secretary, Mary land Department of
Public Safety and Correctional Services

05 i2 l/2019 Date

Date

// /

~- . / :_.) ·)-
~~ ..-:::;;

,/,1 (''

// ,,

/

Daycna M. Corcoran

Date

Richard rvliller

Date

APPROVED AS TO FORM AND LEGALITY:
Attorney for the DEFENDANTS - RELEASEES

Assistant Attorney General

Date

Attorney for RE LEASEES

Release and Settlement Agreement

Page 7 of 7

Robert Wilson

05/21/2019

APPROVED AS TO FORM AND LEGALITY:
. P. Weber, Esq. Attorneys for Plaintiffs Brown Goldstein & Levy, LLP 120 E. Baltimore, St.. Suite 1700
Baltimore, MD 21201
DEFENDANTS:

05/21/2019
Date

Secretary, Maryland Department of Public Safety and Correctional Services

Richard Miller

Date

APPROVED AS TO FORM AND LEGALITY:

Assistant Attorney General Attorney for RELEASEES

Date

Release and Settlement Agreement

Page 7 of 7

 
 Steven Brown, et al. v. Department of Public Safety and Correctional Services, et al.
Exhibit 1 to Release and Settlement Agreement Non-Monetary Term Sheet
All of the following terms apply to currently incarcerated Plaintiffs in Brown v. Department of Public Safety and Correctional Services, Case No. 17-cv-945-RDB, and any Plaintiff who returns to Department of Public Safety and Correctional Services (“DPSCS”) custody while the Agreement remains in effect:
1. Within 60 days of the Effective Date, which shall be the date on which the settlement is approved by the Board of Public Works, DPSCS shall implement an accessible and timely process (separate from the ARP and grievance processes) for Plaintiffs to request reasonable modifications and auxiliary aids and services with timely (i.e., within 14 days of when request was made) determinations and documentation of provision or denial. The process will give primary consideration to the request of the blind inmate and result in approval of modifications, aids, or services whenever doing so is necessary because of a disability, would not constitute an undue burden in light of DPSCS’ resources, would not constitute a direct threat within the meaning of the ADA, and would not fundamentally alter the DPSCS program, service, or activity. Any denial, including but not limited to a determination of undue burden, fundamental alteration, or direct threat must be documented in writing by the Warden of the facility and the Commissioner of Correction, and approved by the Secretary’s designee (ADA Coordinator). That final determination shall be communicated to the requesting individual, and maintained centrally and in the base file of the requesting individual. A copy of the initial request and final determination shall be sent to Inmate Civil Rights Legal Services Provider pursuant to DPSCS Solicitation No. Q0015009 (“Legal Services Provider”). DPSCS shall provide Plaintiffs with a draft of the process described in this Paragraph before implementing it. Plaintiffs may provide feedback on the draft process, to which DPSCS will give due consideration.
2. Within 90 days of the Effective Date, DPSCS shall provide equally effective access to all print materials offered to Plaintiffs by DPSCS and its agents, including but not limited to inmate handbooks/directives, orientation materials, bulletin board notices, informal and formal grievance process forms and responses, commissary forms, request slips, sick call slips, and educational, vocational, and self-help materials, by making them available to Plaintiffs in an accessible format (options include: large print, electronic, including accessible electronic fillable forms, Braille, and audio), along with any assistive technology needed to use the accessible format (e.g., computer with text-to-speech software, CD player, printer attached to computer with assistive technology). These accessible materials and/or assistive technology shall be available to Plaintiffs in the library, classrooms, job locations, or inmate cells, as appropriate to the function of the print material. DPSCS shall maintain the assistive technology currently available to Plaintiffs (including, but not limited to: Job Access With Speech (JAWS), Talking Typer, Book Wizard Reader, SARA CE, Kurzweil

1000, slate/stylus, RUBY, DaVinci Pro HD/OCR, Perkins Brailler, talking calculators, Magnalite 3X LED Lighted Magnifier, Optelec ClearReader+) for the term of this Agreement, shall ensure that such assistive technology is used only by Plaintiffs and other inmates with disabilities that affect their ability to read, write, and comprehend standard print, and shall not require Plaintiffs to pay for assistive technology. DPSCS may offer Plaintiffs a qualified reader and/or scribe where necessary to provide equally effective communication given the particular document or circumstance. DPSCS shall permit Plaintiffs to create documents privately and independently to the same extent allowed to other inmates by allowing Plaintiffs to use a word processing program on computers in the RCI Library with assistive technology and to print documents from these computers.
3. Within 90 days of the Effective Date, DPSCS shall provide equally effective access to all print materials provided to Plaintiffs through DPSCS and its agents, including library materials (including legal research materials and career and housing information), mail (personal and legal), and newspapers and periodicals, by making appropriate assistive technology and auxiliary services (options include: scanner, computer with assistive technology, qualified reader and scribe) available to Plaintiffs in the library, classrooms, job locations, or inmate cells as appropriate to the function of the print material.
4. DPSCS shall ensure any tablets implemented at any facility at which a Plaintiff is in custody have accessibility features suitable for use by Plaintiffs.
5. For Plaintiffs who prefer to have all or some documents read and/or scribed for them, DPSCS shall provide Plaintiffs the opportunity to select a fellow inmate who is designated as a qualified reader and/or scribe, who has been trained, is not affiliated with a security threat group; has not been convicted of a sex offense or a crime involving abuse of a vulnerable person; and has been infraction free for one year. For documents with information that is confidential or that may contain sensitive personal information or contact information for Plaintiffs’ friends or families (including, but not limited to: sick call slips, medical documents, personal mail, request slips, grievances, legal documents, including legal mail, ARP forms and responses, and IGO documents, commissary forms, forms related to visitors or family day, and Prison Rape Elimination Act documents), DPSCS shall ensure that Plaintiffs’ assigned Case Managers or, if a Case Manager is unavailable, an assigned correctional officer, are reasonably available (no longer than 48 hours from when an oral request is made) to spend a maximum of 15 minutes per day per Plaintiff to read or scribe such documents for Plaintiffs. DPSCS shall ensure that Plaintiffs’ assigned Case Managers or, if a Case Manager is unavailable, an assigned correctional officer, are reasonably available (within three (3) business days (excluding holidays and weekends) from when an oral request is made) to spend an hour per day per Plaintiff to write for Plaintiffs. For any documents concerning the assigned Case Manager or correctional officer, DPSCS shall make an impartial staff member reasonably available (no longer than three (3) business days (excluding holidays and weekends) from when an oral request is made) to read or scribe for Plaintiffs. Staff acting as a reader and/or scribe
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shall maintain the Plaintiff’s confidentiality. DPSCS also agrees that it will honor oral requests for medical attention from Plaintiffs. DPSCS agrees that any deadlines internal to DPSCS shall be extended by the number of days between when the Plaintiff requested a reader or scribe and when such assistance was provided.
6. Within 30 days of the Effective Date, in consultation with Blind Industries & Services of Maryland (“BISM”), the RCI ADA Coordinator shall identify what auxiliary aids and services each Plaintiff requires and shall document such information in Plaintiffs’ base file and in a file maintained by the RCI ADA Coordinator. To the extent not already provided, the RCI ADA Coordinator shall implement required auxiliary aids and services within 90 days from the ADA Coordinator’s evaluation. In addition, also in consultation with BISM, the RCI ADA Coordinator shall conduct an individual assessment of each Plaintiff to determine an appropriate training protocol for Plaintiffs to learn skills for independent living as blind individuals from qualified instructors, including independent navigation skills, cleaning, any vocational skills appropriate to the job assigned to Plaintiff, and training on access technology. The ADA Coordinator shall implement an appropriate training protocol for each Plaintiff within 90 days of the ADA Coordinator’s evaluation. The parties agree that the recommendations of BISM are not binding upon the Department, but shall be taken into consideration by the RCI ADA Coordinator and Case Management in determining appropriate services, auxiliary aids and independent living skills, including vocational skills, training for each Plaintiff.
7. To the extent consistent with proper security and inmate safety, DPSCS shall permit Plaintiffs the opportunity to navigate facilities independently or, if Plaintiffs prefer assistance, the opportunity to help select a qualified escort who has been trained, is not affiliated with a security threat group; has not been convicted of a sex offense or a crime involving abuse of a vulnerable person; and has been infraction free for one year. In the event DPSCS decides that a Plaintiff shall not be permitted to navigate independently, such decision shall be documented in writing, with supporting rationale, and communicated to the Plaintiff. A copy of the determination shall be forwarded to the Legal Services Provider.
8. To the extent that each Plaintiffs remains confined in a facility that houses inmates in cells, DPSCS shall continue to single cell that Plaintiff for the duration of his incarceration to the extent that single celling is indicated as medically required by the Department’s medical provider’s Ophthalmology Specialist.
9. DPSCS shall determine security classifications for Plaintiffs without regard to blindness. For those with minimum or prerelease security levels, DPSCS shall offer such Plaintiffs the opportunity to be housed at facilities commensurate with their classification security level and ensure that all required modifications and auxiliary aids and services are provided to these Plaintiffs at these other facilities. For Plaintiffs eligible for evaluation for or participation in programs and services offered at Patuxent Institution, DPSCS, upon notifying and receiving consent for a transfer to Patuxent from each eligible Plaintiff, shall transfer such Plaintiffs to Patuxent and ensure that
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all required modifications and auxiliary aids and services are provided to these Plaintiffs at Patuxent. When Plaintiffs are transferred to different facilities for shortterm stays, such as for court visits, DPSCS shall ensure that all required modifications and auxiliary aids and services are provided to Plaintiffs at these other facilities.
10. DPSCS shall provide Plaintiffs modifications and auxiliary aids and services necessary to enable their equal participation in any DPSCS program, service, or activity for which they are otherwise qualified or eligible but for their disability, unless to do so would pose a direct threat to the health and safety of others, constitute an undue burden in light of DPSCS’ resources, or fundamentally alter the program, service or activity. Any denial of a request for a modification, auxiliary aid or service, including but not limited to a determination of undue burden, fundamental alteration, or direct threat must be documented in writing by the Warden of the facility and the Commissioner of Correction, and approved by the Secretary’s designee (ADA Coordinator). That final determination shall be communicated to the requesting individual, and maintained centrally and in the base file of the requesting individual. A copy of the initial request and final determination shall be sent to the Legal Services Provider.
11. DPSCS shall offer Plaintiff Maynard Snead the next available position for which he is qualified in Maryland Correctional Enterprises. DPSCS shall offer Plaintiff Robert Wilson the next available position in Food Service in which he can perform the essential functions of the job with or without reasonable modifications and auxiliary aids and services, regardless of whether he is housed at RCI or a different DPSCS facility.
12. DPSCS shall provide Plaintiffs a head start to recreation, gym, and meals by opening their cells at least 10 minutes before the general population is permitted to leave their cells for these activities.
13. Within 60 days of the Effective Date, the Warden of RCI shall meet with the Plaintiffs and shall continue to do so on a quarterly basis throughout the term of this Agreement.
14. Within 90 days of the Effective Date, responsible staff, including job supervisors, education providers, case managers, and correctional officers who work with Plaintiffs, will be trained on the requirements of this Agreement and of the ADA and Section 504, their duty not to retaliate against Plaintiffs for filing this lawsuit or raising concerns about violations of the ADA or Section 504, the process for requesting reasonable modifications and auxiliary aids and services, including reasonable modifications in job and vocational programs, and the availability and function of assistive technology for the blind.
15. DPSCS shall ensure all contractual arrangements with third-party entities require those entities to comply with Plaintiffs’ rights under the ADA and Section 504.
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16. This Agreement shall be effective for a period of five (5) years from the date on which it is executed by all parties.
17. DPSCS shall provide Plaintiffs, in accessible formats, the name, office address, and telephone number of RCI’s and DPSCS’s ADA Coordinators.
18. This is a private settlement agreement as contemplated by 18 U.S.C. 3626(c)(2). This is not a consent decree pursuant to 19 U.S.C. 3626(c)(1).
19. Enforcement of Settlement Agreement.
a. Pursuant to 18 U.S.C. § 3626(c)(2), upon an alleged breach of the Release and Settlement Agreement, including this Exhibit 1, Plaintiffs may move the United States District Court for the District of Maryland (the “U.S. District Court”) to enforce the Settlement Agreement, subject to subparagraph b of this paragraph. The parties agree that the Settlement Agreement complies with 18 U.S.C. § 3626(a) and, accordingly, any action by Plaintiffs to enforce this Settlement Agreement in the U.S. District Court shall not result in the reinstatement of the litigation pursuant to 18 U.S.C. § 3626(c)(2)(A). In the event that the U.S. District Court finds that the Settlement Agreement does not comply with 18 U.S.C. § 3626(a), the parties stipulate and agree that the litigation shall not be reinstated in the U.S. District Court. Instead, Plaintiffs will have the right to file an action in Maryland state court seeking specific performance of the Settlement Agreement, subject to subparagraph b of this paragraph. The right to seek enforcement pursuant to this paragraph shall expire five (5) years from the Effective Date of the Settlement Agreement. In any action to enforce the Settlement Agreement under this paragraph, Plaintiffs shall not be entitled to any damages except those damages allowable under 42 U.S.C. § 1997e(e).
b. Prior to taking any action under subparagraph a of this paragraph, counsel for Plaintiffs shall notify counsel for DPSCS of the alleged non-compliance in writing and give DPSCS thirty (30) days to investigate and cure the alleged breach. If the alleged breach is cured by DPSCS within the thirty (30) day period, the Plaintiffs may not seek relief under subparagraph a of this paragraph.
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 Case 1:16-cv-00945-RDB Document 18 Filed 09/06/16 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ANTHONY BLUE

STEVEN BROWN

*

WILBERT DELANO

GREGORY HAMMOND

*

SEDRIC HOLLEY

RUSSELL HOPKINS

*

JOHNNIE JAMES

TYRELL POLLEY

*

MAYNARD SNEED

ROBERT WILSON

*

Plaintiffs,

*

v.

*

Civil Action No. RDB-16-945

DEPARTMENT OF PUBLIC SAFETY *

AND CORRECTIONAL SERVICES

STEPHEN MOYER

*

DAYENA M. CORCORAN

RICHARD MILLER

*

Defendants.

*

* * * * * * * * * * * * * *
NOTICE OF VOLUNTARY DISMISSAL PURSUANT TO F.R.C.P. 41(a)(1)(A)(i)

Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), Plaintiff Anthony Blue, through undersigned counsel, hereby gives notice that all of his claims in the above-captioned action are voluntarily dismissed as to all defendants. Remaining plaintiffs will proceed in this action against all defendants.

Respectfully submitted,
/S/ Stephen Z. Meehan Federal Bar No. 23915
/S/ Damien Dorsey

Case 1:16-cv-00945-RDB Document 18 Filed 09/06/16 Page 2 of 2

Date: September 6, 2016

Federal Bar No. 19194
Prisoner Rights Information System of Maryland, Inc.
P.O. Box 929 Chestertown, Maryland 21620
Telephone: (410) 778-1700 Telecopier: (410) 778-3543 Electronic Mail: smeehan@prisminc.org
ddorsey@prisminc.org

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 Case 1:16-cv-00945-RDB Document 23 Filed 09/07/16 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ANTHONY BLUE STEVEN BROWN WILBERT DELANO GREGORY HAMMOND SEDRIC HOLLEY RUSSELL HOPKINS JOHNNIE JAMES TYRELL POLLEY MAYNARD SNEED ROBERT WILSON
Plaintiffs,

*
*
*
*
* Civil Action No. RDB-16-945
*

v.

*

DEPARTMENT OF PUBLIC SAFETY AND *

CORRECTIONAL SERVICES

STEPHEN MOYER

*

DAYENA M. CORCORAN

RICHARD MILLER

*

Serve On:

*

Michael O. Doyle, Assistant Attorney General

Deputy Counsel

*

Office of the Attorney General

Department of Public Safety

*

and Correctional Services

300 East Joppa Road, Suite 1000

*

Towson, Maryland 21286

*

Defendants.

*

* * * * * * * * * *

FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND COMPENSATORY AND PUNITIVE DAMAGES

Case 1:16-cv-00945-RDB Document 23 Filed 09/07/16 Page 2 of 33
INTRODUCTION 1. Plaintiffs Steven Brown, #299894, Wilbert Delano, #346138, Gregory Hammond, #407534, Sedric Holley, #358967, Russell Hopkins, #438457, Johnnie James, #339779, Tyrell Polley, #443422, Maynard Sneed, #293657, and Robert Wilson, #416017, inmates and former inmates at Roxbury Correctional Institution (“RCI”), bring this action against the Maryland Department of Public Safety and Correctional Services, Stephen Moyer, Dayena Corcoran, and Richard Miller for discriminating against them because they are blind, denying them access to the administrative grievance process and to the courts, and subjecting them to conditions of incarceration that have caused serious harm and create a substantial risk of such harm. Defendants’ actions violate Titles II and IV of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131–12165, 12201–12213, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794, and the Eighth and Fourteenth Amendments to the United States Constitution. On the basis of these violations, Plaintiffs seek a declaratory judgment, injunctive relief, compensatory and punitive damages, attorneys’ fees and costs, and any other available relief. 2. Because Plaintiffs are blind, Defendants deny Plaintiffs private and independent access to vital services, programs, and activities available to inmates at RCI. Defendants’ discrimination and their failures to make reasonable modifications to their policies and provide appropriate auxiliary aids and services threaten Plaintiffs’ health and safety and deprive them of the equal enjoyment of benefits and opportunities available to the rest of the prison population. 3. Plaintiffs are not afforded private, independent, and effective access to the Inmate Handbook or orientation materials, which inform inmates of their rights and responsibilities and
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the rules governing life inside RCI. As a result, Plaintiffs are deprived of vital information and exposed to potential disciplinary action for unknowing violations of RCI’s rules.
4. Plaintiffs are not afforded private, independent, and effective access to initiating and completing the administrative grievance process or pursuing claims in state or federal courts because Defendants do not provide the necessary materials and services in a format accessible to the blind. As a result, Plaintiffs are forced to rely on sighted inmates, when one can be persuaded to help. This system exposes Plaintiffs to a substantial risk of exploitation and abuse.
5. Defendants discriminate against Plaintiffs because of Plaintiffs’ blindness in the administration of various work programs through which inmates receive valuable vocational training and earn wages and credits towards their release.
6. Defendants do not provide the necessary reasonable modifications and auxiliary aids and services that would allow Plaintiffs equal access to educational programming available to inmates at RCI. Nor do they provide Plaintiffs with instruction of equal quality to that available to sighted inmates.
7. Defendants do not provide the necessary reasonable modifications and auxiliary aids and services that would allow Plaintiffs to navigate RCI’s facilities independently. As a result, Plaintiffs are forced to rely on sighted inmates, again exposing them to a substantial risk of exploitation and abuse and denying them the equal use of the facilities.
8. Defendants do not provide the necessary reasonable modifications and auxiliary aids and services that would allow Plaintiffs to access the prison mail services independently and privately, again forcing Plaintiffs to rely on sighted inmates. As a result of Defendants’ failures, not only Plaintiffs, but their friends and families have been exposed to abuse and the substantial risk of abuse.
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9. Based on their underlying convictions and sentences, some Plaintiffs should be housed at less restrictive facilities. By segregating these Plaintiffs with other blind prisoners at RCI, Defendants have denied them their right to be incarcerated in the least restrictive environment consistent with their classification security levels.
10. Despite the fact that inmate safety is one factor Defendants are required to consider when implementing inmate housing assignments, Defendants fail to take the safety concerns presented by Plaintiffs’ blindness into account when placing them in cells. As a result, some Plaintiffs are double-celled at substantial risk to their safety and well-being.
11. On March 24, 2016, Plaintiffs filed a Motion for Appointment of Counsel under 28 U.S.C. § 1915. ECF 1. This Court treated that motion as a Complaint and on April 4, 2016, granted the motion for the purpose of filing an Amended Complaint and a Motion to Proceed in Forma Pauperis. ECF 2.
PARTIES, JURISDICTION, AND VENUE 12. Plaintiff Anthony Blue, #141205, instructed undersigned counsel to dismiss his complaint, and a separate Notice of Dismissal has been filed. 13. Plaintiff Steven Brown, #299894, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI, which is located at 18701 Roxbury Road, Hagerstown, Maryland 21746. Mr. Brown is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
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14. Plaintiff Wilbert Delano, #346138, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI. Mr. Delano is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
15. Plaintiff Gregory Hammond, #407534, was an inmate committed to the custody of the Commissioner of Correction and assigned to RCI from September 24, 2015, to August 8, 2016. On August 8, 2016, Mr. Hammond was released by court order to the Dorchester County Detention Center, 829 Fieldcrest Road, Cambridge, MD 21613. At all times relevant to this action, Mr. Hammond was blind and was a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, could not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
16. Plaintiff Sedric Holley, #358967, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI. Mr. Holley is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
17. Plaintiff Russell Hopkins, #438457, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI. Mr. Hopkins is blind and is a “qualified individual with a disability” as defined in 42 U.S.C §
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Case 1:16-cv-00945-RDB Document 23 Filed 09/07/16 Page 6 of 33
12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
18. Plaintiff Johnnie James, #339779, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI. Mr. James is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
19. Plaintiff Tyrell Polley, #443422, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI. Mr. Polley is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
20. Plaintiff Maynard Sneed, #293657, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI. Mr. Snead is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
21. Plaintiff Robert Wilson, #416017, at all times relevant to this action, was and is an inmate committed to the custody of the Commissioner of Correction and assigned to RCI.
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Mr. Wilson is blind and is a “qualified individual with a disability” as defined in 42 U.S.C § 12131(2) who, by reason of such disability, may not be excluded from participation in or be denied the benefits of the services, programs, or activities of the Department of Public Safety and Correctional Services or be subjected to discrimination by it.
22. Defendant Department of Public Safety and Correctional Services (“DPSCS,” or “the Department”) is established as a principal department of state government pursuant to Correctional Services Article § 2-101. The Maryland Division of Correction (“DOC”) is a unit of the Department, CSA § 2-201, organized to incarcerate certain criminal defendants sentenced by Maryland courts. The DOC includes RCI.
23. Defendant Stephen Moyer is Secretary of DPSCS. The Secretary of DPSCS is responsible for the administration of the Department. CSA § 2-102. He is aware of DPSCS’s policies and practices regarding inmates, including policies and practices regarding blind inmates, including Plaintiffs. He is aware of the requirements of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated at RCI. He is sued in his individual and official capacities.
24. Defendant Dayena M. Corcoran is the Commissioner of Correction (“the Commissioner”). The Commissioner is responsible for the administration of the DOC and is responsible to the Secretary of DPSCS and the Governor for the well-regulated incarceration of inmates and the supervision of correctional staff. CSA §§ 3-203 et seq. She is also responsible for responding to appeals of complaints and grievances brought by individuals in DOC custody, including Plaintiffs. She is aware of DPSCS and DOC policies and practices regarding inmates, including policies and practices regarding blind inmates, including Plaintiffs. She is aware of the
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requirements of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated at RCI. She is sued in her individual and official capacities.
25. Defendant Richard Miller is the Warden of RCI and is responsible for the governance, discipline, and policies of that institution. CSA § 3-211. Warden Miller is the legal custodian of all individuals incarcerated at RCI, including Plaintiffs, and is responsible for their safe, secure, and humane treatment. He is aware of DPSCS’s policies and practices regarding inmates, including policies and practices regarding blind inmates, including Plaintiffs. He is aware of the requirements of federal law, including the Eighth and Fourteenth Amendments to the United States Constitution, the ADA, and Section 504 as they pertain to the treatment of individuals incarcerated at RCI. He is aware of complaints brought by blind inmates at RCI regarding conditions of confinement, including the conditions set forth herein. He is sued in his individual and official capacities.
26. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a).
27. Venue is proper in this District under 28 U.S.C. § 1391(b), as all Defendants reside in this District and a substantial part of the events giving rise to the claims herein occurred within this District.
STATEMENT OF FACTS A. INACCESSIBLE INMATE HANDBOOK AND ORIENTATION
MATERIALS 28. All sighted inmates are provided with a copy of the DOC Inmate Handbook upon entering the prison system. Inmates also receive orientation materials with information specific to the institution in which they are incarcerated.
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29. Plaintiffs have physical disabilities that interfere with their ability to read and write printed text without auxiliary aids and services and reasonable modifications. With appropriate auxiliary aids and services and reasonable modifications, however, Plaintiffs are capable of reading and writing textual material.
30. Defendants have not provided Plaintiffs with an accessible copy of the DOC Inmate Handbook or RCI orientation materials. By denying Plaintiffs these materials in an accessible form, Defendants fail to provide equal and effective communication to Plaintiffs of their rights and responsibilities as inmates at RCI. This failure exposes Plaintiffs to the risk of discipline or confrontations with correctional officers or other inmates because of unknowing rule violations.
31. With reasonable modifications to Defendants’ policies and procedures and appropriate auxiliary aids and services, Plaintiffs could effectively access the DOC Inmate Handbook and RCI orientation materials.
B. DENIAL OF ACCESS TO THE GRIEVANCE PROCESS AND TO THE COURTS
32. To exhaust the grievance process, inmates must complete and submit a number of print forms, including the informal complaint form, the Administrative Remedy Procedure form, the appeal form, and others, together with the submission of written documentation. Inmates also must read responses from the Warden, the Commissioner, the Inmate Grievance Office, administrative law judges, and state and/or federal judges. These are transmitted to inmates in hard-copy, written form.
33. Defendants do not supply blind inmates with any grievance form, response, notice, or decision in an accessible format. Unlike their sighted counterparts, Plaintiffs have no
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Case 1:16-cv-00945-RDB Document 23 Filed 09/07/16 Page 10 of 33
way to initiate and complete the grievance or court processes privately and independently. Instead, they must rely on sighted inmates to help them.
34. RCI has a library that contains law books. The library materials are critical to allowing inmates to understand the process for filing and pursuing grievances and lawsuits and to conduct research to support their claims. Inmates also may request copies of court opinions from Library Assistance for State Institutions, a program administered by DPSCS.
35. There are computers and typewriters in RCI’s library that are available for inmates to use to write legal documents, including court pleadings. Inmates may also use pen and paper.
36. Sighted inmates can access the library’s research materials independently and privately. Plaintiffs cannot. Defendants have not supplied Plaintiffs with any auxiliary aids or services or undertaken any reasonable modifications to allow Plaintiffs to independently access the electronic and hard-copy materials in the library or materials provided by Library Assistance for State Institutions. As a result, Plaintiffs have been denied effective and equal access to the grievance process and state and federal court because they are forced to rely on sighted inmates to relay the relevant procedures to them and to conduct their legal research for them.
37. Sighted inmates may write their own legal documents. Plaintiffs cannot. Defendants have not provided Plaintiffs with the auxiliary aids or services or reasonable modifications to allow them to write independently. As a result, Plaintiffs have been denied effective and equal access to the grievance process and state and federal court, because they must rely on sighted inmates to write for them.
38. When pursuing legal action with the help of sighted inmates, Plaintiffs have no way of verifying that the information they intend to submit is accurately conveyed, that the
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requested actions are taken, that the intended arguments are made, that the proper documentation is attached, or that reliable law is cited.
39. Requiring Plaintiffs to rely on sighted inmates for their legal needs also exposes Plaintiffs to extortion, sexual exploitation, and violence.
40. Plaintiffs have been forced to pay sighted inmates in cash or commissary items to receive help with the grievance and court processes and to access the benefits of the library.
41. Plaintiffs have had their grievances and lawsuits dismissed due to mistakes by sighted inmates.
42. Plaintiffs have been unable to initiate or continue the grievance or court processes because no sighted inmate would help them or because they cannot afford the help or risk disclosing personal information, including the nature of their underlying conviction, to another inmate.
43. Staff members at RCI have told Plaintiffs that they are not allowed to seek assistance from sighted inmates to file grievances. Staff members also have retaliated against sighted inmates who have helped Plaintiffs by stripping them of privileges, such as truncating their recreational or shower time and transferring them out of jobs. These actions further limit Plaintiffs’ access to the grievance and court processes.
44. Staff members at RCI also have retaliated against Plaintiffs for participating in this litigation by taking away or restricting privileges, harassing Plaintiffs, threatening to confiscate their property, and, in the case of one case manager, refusing to meet with Plaintiffs assigned to her.
45. Defendants have failed to make reasonable modifications and provide auxiliary aids and services that would allow Plaintiffs to exchange confidential, written communications
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with their attorneys. Because Plaintiffs have no way of reading their mail without help from sighted inmates, if they wish to review documents prepared by their attorneys or send any document in writing to an attorney, they must waive their attorney-client privilege. This severely restricts their access to effective legal representation.
46. Plaintiffs have protested their inability to privately, independently, and effectively access the grievance and court processes to Defendants and their employees. Plaintiffs also have told Defendants and their employees, including Warden Miller, that their dependence on sighted inmates to access the grievance and court processes puts them in danger. In addition, in 2012, an administrative law judge ruled that DOC violated the law by failing to allow blind inmates access to library services.
47. With reasonable modifications to Defendants’ policies and procedures and appropriate auxiliary aids and services, Plaintiffs could privately, independently, and effectively access the grievance process, the library, Library Assistance for State Institutions, and the courts.
C. EXCLUSION FROM WORK PROGRAMS 48. Inmates within DPSCS may earn diminution credits and wages through work assignments. Each diminution credit correlates to a one day reduction in an inmate’s sentence. An inmate may earn five industrial credits each month during which he satisfactorily completes assigned work tasks. Additionally, an inmate may earn up to ten credits each month in which he shows satisfactory progress in special work projects or programs selected by the Commissioner and approved by the Secretary of DPSCS. Work assignments also provide valuable vocational training for re-entry. 49. Plaintiffs are qualified individuals with a disability whose blindness should not prevent them from accessing Defendants’ work programs. Nevertheless, Defendants have
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denied Plaintiffs placement in or removed them from certain jobs based on unfounded safety concerns and stereotypes about the capabilities of blind individuals. Blind inmates offered work placement have been relegated to jobs that pay less and offer fewer diminution credits and opportunities for vocational training.
50. The Department does not allow inmates with no vision to participate in Maryland Correctional Enterprises (“MCE”), an organization located in the DOC in which inmates are employed to provide goods and services to state and local governments and non-profit organizations. Inmates employed by MCE receive on-the-job training and higher wages than inmates in other jobs. Plaintiffs desire to participate in MCE.
51. Defendants have failed to make reasonable modifications to their policies and procedures that would allow Plaintiffs to be eligible for work release programs. Participation in work release programs is critical to qualifying for parole. As a result of Defendants’ discriminatory policies, Plaintiffs must remain incarcerated in more restrictive conditions than necessary, and for longer than necessary, because of their blindness.
52. Plaintiffs have protested Defendants’ discriminatory treatment in administering work programs to Defendants and their employees.
53. With reasonable modifications to Defendants’ policies and procedures and appropriate auxiliary aids and services, the work programs at RCI could be made equally available to Plaintiffs.
D. EXCLUSION FROM EDUCATIONAL PROGRAMS 54. Inmates within DPSCS can take adult basic education classes and GED classes. Through these classes, inmates receive valuable educational benefits crucial to finding employment upon their release. They also may earn five education credits each month toward
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their sentences when they show satisfactory progress in vocational, educational, and training courses.
55. Classes at RCI are not accessible to Plaintiffs. The classes use printed materials that are not provided to blind inmates in an accessible format. Instruction to Plaintiffs is therefore less effective than instruction to sighted inmates. Nor are auxiliary aids and services, like talking calculators, available. Plaintiffs who are enrolled in the GED class must try to do all of the math in their heads, while sighted inmates may use calculators.
56. Plaintiffs have been forced to terminate their enrollment in classes because they were denied reasonable modifications and access to appropriate auxiliary aids and services, such as audio recordings and additional time for taking exams.
57. While sighted inmates at RCI may learn basic literacy through adult basic education classes, Plaintiffs have no access to literacy programs, because Defendants have refused to provide competent instruction in Braille. Certified teachers instruct sighted inmates, but Defendants have refused to hire a professional Braille instructor.
58. Plaintiffs have protested Defendants’ discriminatory treatment in educational programs to Defendants and their employees. In addition, in 2012, an administrative law judge found that blind inmates were unable to fully participate in educational classes because they were not given any help to complete written assignments. The judge also ruled that the DOC violated the law by failing to make reasonable accommodations to allow blind inmates access to Braille lessons and other library services, such as reading material.
59. With reasonable modification to Defendants’ policies and procedures and the provision of appropriate auxiliary aids and services, the educational programs at RCI could be made equally available to Plaintiffs.
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E. DENIAL OF REASONABLE MODIFICATIONS AND AUXILIARY AIDS AND SERVICES TO ALLOW PLAINTIFFS TO INDEPENDENTLY NAVIGATE AND ACCESS RCI FACILITIES AND SERVICES
60. RCI consists of several separate buildings surrounding a central courtyard. Services critical to inmates’ daily lives, such as the gym, medical center, chow hall, and educational programs, are housed in separate buildings. One of the issues for blind persons is learning to be independently mobile. Training in the use of a white cane and other mobility devices is essential to promoting safe movement for blind persons.
61. Defendants have never provided Plaintiffs with any mobility or orientation training to allow them to navigate RCI’s facilities independently. Nor have they provided Plaintiffs the auxiliary aids and services, like white canes, that would afford them that independence. Instead, RCI assigns blind inmates “walkers”—sighted inmates who are paid to guide blind inmates through the facilities.
62. The walker program deprives Plaintiffs of the independence sighted inmates enjoy. While sighted inmates may, at certain times of day, choose which part of RCI to visit, Plaintiffs must rely on their walkers to take them where they want to go. If their walkers do not want to go where they want to go, Plaintiffs are stuck.
63. By facilitating dependence on other inmates, the walker program also exposes Plaintiffs to a substantial risk of extortion, exploitation, and violence. There is no formal screening process in place to ensure that inmates employed as walkers have no history of aggressive behavior or extortion. Plaintiffs have been threatened by their walkers when they asked the walkers to perform tasks the walkers did not want to do, or when they complained about their walkers’ behavior.
15

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64. There is no system in place to allow Plaintiffs to access any prison services that require reading and/or writing. For example, walkers do not have to help Plaintiffs fill out commissary requests. Plaintiffs have been forced to pay sighted inmates in cash or commissary items to make commissary requests.
65. Plaintiffs have protested the inaccessibility of RCI’s facilities and services to Defendants and their employees. Plaintiffs also have told Defendants and their employees that their dependence on sighted inmates to navigate RCI puts them in danger.
66. With reasonable modifications to Defendants’ policies and procedures and the provision of appropriate auxiliary aids and services, the facilities and services at RCI could be made equally available to Plaintiffs.
F. INACCESSIBLE INSTITUTIONAL MAIL SERVICES 67. Inmates at RCI are able to send and receive mail. 68. Defendants have failed to provide Plaintiffs with the necessary auxiliary aids and services and reasonable modifications to allow them to read and write mail privately and independently. Instead, Plaintiffs are forced to rely on sighted inmates to use the mail services. 69. Plaintiffs’ mail often includes personal and confidential information, legal information (including privileged correspondence with their attorneys), and contact information for their friends and family. Requiring blind inmates to give sighted inmates access to this information in order to use the mail makes blind inmates vulnerable to exploitation, extortion, and violence. 70. Sighted inmates who assist Plaintiffs have used the contact information for Plaintiffs’ friends and families to exploit their correspondents and cause them to feel unsafe.
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Case 1:16-cv-00945-RDB Document 23 Filed 09/07/16 Page 17 of 33
71. Plaintiffs have protested the inaccessibility of the mail services to Defendants and their employees. Plaintiffs also have told Defendants and their employees that their dependence on sighted inmates to access the mail puts them and their families and friends in danger.
72. With reasonable modifications to Defendants’ policies and procedures and appropriate auxiliary aids and services, Plaintiffs could privately, independently, and effectively use the institutional mail services.
G. SEGREGATING BLIND INMATES AT RCI REGARDLESS OF CLASSIFICATION SECURITY LEVEL
73. Inmates are assigned to facilities within the DOC based on their classification security levels. An inmate’s classification security level is determined by a number of factors, including the severity of the inmate’s offense, the length of his sentence, and his history of violence.
74. RCI is a medium level II security prison. It is designed for prisoners who pose a risk of violence, are above moderate risk of escape, or who have demonstrated through institutional adjustment that they do not require maximum security status. Prisoners at RCI are more heavily supervised and more restricted in their movement than prisoners at medium level I, minimum, and pre-release security prisons. They do not have access to all of the same services and programs available at lower-security facilities.
75. Defendants segregate blind prisoners at RCI. This policy denies Plaintiffs with classification security levels lower than medium level II the benefit of a less restrictive environment and programs available to sighted inmates with their same classification security levels.
76. Plaintiffs have protested their segregation at RCI to Defendants and their employees.
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H. DOUBLE-CELLING BLIND INMATES AT RISK TO THEIR SAFETY 77. Maryland prisons provide single-cell, double-cell, and even dormitory-style housing for inmates. Cell assignments are designed to meet different needs, including the safety of individual inmates. 78. Single-cell housing can be necessary for the safety of blind inmates, but Defendants do not take safety concerns resulting from an inmate’s blindness into account when distributing cell assignments. 79. Blind inmates can be more vulnerable to theft and less able to forestall or defend against attacks when housed in cells with other inmates. 80. Blind inmates are more vulnerable to acts of aggression when housed in cells with other inmates, because their cellmates may be provoked by their disability and behavior resulting from their disability, including bumping into a cellmate or a cellmate’s possessions or failing to notice and clean up a mess, and because blind inmates may be perceived as more vulnerable. 81. If a blind inmate is housed with a sighted inmate on whom he is dependent, such as for reading, writing, and/or movement around the prison, the risk of abuse and exploitation increases dramatically. 82. Some Plaintiffs are currently housed in double cells, including with sighted inmates on whom they are dependent for reading, writing, and mobility due to Defendant’s failure to provide reasonable and necessary modifications, aids, and services for blind inmates. 83. Previously all blind inmates housed at RCI, including all Plaintiffs, were singlecelled. Defendants have the capacity to give blind inmates the option to be housed in single cells.
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84. Plaintiffs have told Defendants and their employees that double-celling puts them in danger.
85. With reasonable modifications to policies and procedures regarding cell assignments, Plaintiffs could be safely incarcerated.
CLAIMS FOR RELIEF COUNT I
(42 U.S.C. § 1983 – DENIAL OF ACCESS TO THE COURTS, IN VIOLATION OF AMEND. XIV, U.S. CONSTITUTION)
(DEFENDANTS MOYER, CORCORAN, AND MILLER) Plaintiffs adopt and incorporate the preceding paragraphs as they appear above and say further: 86. 42 U.S.C. § 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 87. Plaintiffs bring suit pursuant to 42 U.S.C. § 1983 to seek redress for Defendants’ violation of their Fourteenth Amendment rights to access the courts. Defendants fail to make reasonable modifications and/or provide auxiliary aids and services to make the grievance process, courts, and library accessible to Plaintiffs, compel Plaintiffs to utilize the assistance of sighted inmates at risk to Plaintiffs’ safety and well-being, retaliate against Plaintiffs for attempting to exercise their right to access the courts, and render the services of sighted inmates unavailable to Plaintiffs by retaliating against sighted inmates who provide assistance.
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88. As a result of Defendants’ policies and practices, Plaintiffs have been unable to effectively initiate or complete the grievance or court processes or communicate effectively with their attorneys. Plaintiffs also have had their grievances and lawsuits dismissed due to the errors of the sighted inmates upon whom Plaintiffs are forced to rely.
89. Plaintiffs have been damaged by the conduct of Defendants, and Plaintiffs are entitled to compensatory damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00).
90. The conduct of Defendants demonstrates reckless disregard for the civil rights of Plaintiffs, and punitive damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00) should be awarded to Plaintiffs as a punishment and to deter similar conduct in the future.
COUNT II (42 U.S.C. § 1983 – SUBJECTING PLAINTIFFS TO SERIOUS HARM AND A SUBSTANTIAL RISK OF SERIOUS HARM IN VIOLATION OF AMEND. VIII, U.S.
CONSTUTION, AS APPLIED THROUGH AMEND. XIV) (DEFENDANTS MOYER, CORCORAN, AND MILLER) Plaintiffs adopt and incorporate the preceding paragraphs as they appear above and say further: 91. The Eighth Amendment to the United States Constitution, which has been incorporated against the states by the Fourteenth Amendment, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 92. Plaintiffs bring suit pursuant to 42 U.S.C. § 1983 to seek redress for Defendants’ infliction of cruel and unusual punishments. Defendants fail to reasonably modify their policies or procedures or provide Plaintiffs auxiliary aids or services to allow Plaintiffs to navigate RCI
20

Case 1:16-cv-00945-RDB Document 23 Filed 09/07/16 Page 21 of 33
and read and write independently and privately. Defendants also refuse to consider Plaintiffs’ blindness when double-celling inmates.
93. Because of these failures, Plaintiffs have suffered serious harm, including physical and sexual abuse, extortion, disruption of their relationships with their loved ones, and severe anxiety and emotional distress. Plaintiffs also are exposed to a substantial risk of such harms.
94. Defendants are aware of the harms and risks created by their policies and practices.
95. Plaintiffs have been damaged by the conduct of Defendants, and Plaintiffs are entitled to compensatory damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00).
96. The conduct of Defendants demonstrates reckless disregard for the civil rights of Plaintiffs, and punitive damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00) should be awarded to Plaintiffs as a punishment and to deter similar conduct in the future.
COUNT III (42 U.S.C. § 12131–12165, 12202–12213 – DISCRIMINATION AGAINST PLAINTIFFS
BECAUSE OF BLINDNESS IN VIOLATION OF THE AMERICANS WITH DISABILITIES ACT)
(DEFENDANTS DEPARTMENT OF PUBLIC SAFETY & CORRECTIONAL SERVICES AND MOYER)
Plaintiffs adopt and incorporate the preceding paragraphs as they appear above and say further:
97. Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §
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12101(b)(l). Title II of the ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
98. Public entities may not “[d]eny a qualified individual with a disability the opportunity to participate in or benefit from [an] aid, benefit, or service” they provide, nor may they afford such individuals “an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others.” 28 C.F.R. § 35.130(b)(1)(i)–(ii). ADA regulations prohibit public entities from providing a qualified individual with a disability “an aid, benefit, or service that is not as effective in affording equal opportunity” to gain a result or benefit and from “limit[ing] a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.” Id. § 35.130(b)(1)(iii), (vii).
99. Public entities must “ensure that communications with . . . participants . . . with disabilities are as effective as communications with others.” Id. § 35.160(a)(1).
100. ADA regulations prohibit a public entity from using “eligibility criteria that screen out or tend to screen out an individual with a disability . . . from fully and equally enjoying any service, program, or activity” unless the entity can make a showing of necessity. Id. § 35.130(b)(1). Any safety requirements must be “based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” Id. § 35.130(h).
101. The “criteria or methods of administration” of a public entity may not “have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability” or “have the purpose or effect of defeating or substantially impairing accomplishment
22

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of the objectives of the public entity’s program with respect to individuals with disabilities.” Id. § 35.130(b)(3).
102. Public entities are required to “make reasonable modifications in policies, practices, or procedures . . . to avoid discrimination on the basis of disability,” unless such modifications “would fundamentally alter the nature of the service, program, or activity.” Id. § 35.130(b)(7). They must also “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity.” Id. § 35.160(b)(1); see also 42 U.S.C. §§ 12102(4)(E)(i)(III), 12103(1), 12131(2). Auxiliary aids and services must “protect the privacy and independence of the individual with a disability.” 28 C.F.R. § 35.160(b)(2). Auxiliary aides and services include “qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments” and the “acquisition or modification of equipment or devices.” 42 U.S.C. § 12103(1).
103. Title IV of the ADA prohibits discrimination against individuals for “oppos[ing] any act or practice made unlawful” by the ADA or for participating in any way in an investigation proceeding under the ADA. 42 U.S.C. § 12203(a). It also makes it “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by” the ADA. Id. § 12203(b).
104. Plaintiffs, as blind persons, are individuals with a disability within the meaning of Title II of the ADA, 42 U.S.C. § 12131(2).
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105. Defendants are departments, agencies, or instrumentalities of the State of Maryland or representatives of the same and are “public entit[ies]” within the meaning of 42 U.S.C. § 12131(1)(B).
106. The Inmate Handbook and orientation materials, administrative grievance process, Defendants’ facilitation of communication between inmates and the courts, the library, the work programs, the educational programs, the building facilities, the institutional mail system, and inmate housing are services, programs, or activities of a public entity under 42 U.S.C. § 12132.
107. As inmates of RCI, Plaintiffs are qualified to participate in and receive the benefits of each of these services, programs, or activities.
108. Defendants deny Plaintiffs equal access to and benefits from services, programs, and activities because of Plaintiffs’ blindness when they house Plaintiffs with lower classification security levels at RCI and when they refuse to consider the safety concerns of blind inmates when double-celling prisoners. They discriminate against Plaintiffs because of their blindness when they relegate them to jobs that provide lower pay and fewer diminution credits based on stereotypes about their abilities as blind individuals. Defendants discriminate against Plaintiffs because of their blindness when they refuse to provide competent literacy instruction to blind inmates. Retaliation by Defendants’ employees against inmates who assist Plaintiffs with the grievance and court processes also constitutes discrimination against Plaintiffs because of their blindness.
109. Defendants’ administration of inmate housing assignments has the effect of subjecting Plaintiffs to discrimination on the basis of their blindness and substantially impairing
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the objectives of the inmate housing program by subjecting Plaintiffs to exploitation and violence.
110. Defendants’ failure to provide reasonable modifications to the Inmate Handbook and orientation materials, grievance process, process for communicating with courts, library, work programs, educational programs, and institutional mail system, and their failures to provide appropriate auxiliary aids and services to allow Plaintiffs to access these programs and navigate RCI independently have subjected Plaintiffs to discrimination on the basis of their disability. Defendants deny Plaintiffs their right to equally and effectively participate in these services, programs, and activities while maintaining their independence and privacy. Defendants also have failed to ensure that communications with Plaintiffs through these services, programs, and activities are as effective as communications with sighted inmates.
111. Defendants have retaliated against Plaintiffs by revoking or restricting their privileges, harassing them, threatening to confiscate their property, and refusing to meet with them because of their participation in this litigation.
112. As a result of Defendants’ discriminatory policies and practices, Plaintiffs have suffered physical and sexual abuse, extortion, the disruption of their relationships with their loved ones, and severe anxiety and emotional distress. Plaintiffs also have been unable to initiate or complete the grievance or court processes or communicate effectively with their attorneys and have had their grievances and lawsuits dismissed. They have lost the opportunity to receive diminution credits, wages, and training in jobs with better opportunities for employment outside the prison. They have lost educational opportunities, including the opportunity to receive their GEDs and become literate in Braille, opportunities that are vital to their future employment. Some Plaintiffs have suffered the reduced freedom and access to programming that comes with
25

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housing in a more restrictive facility than necessary for inmates with their classification security levels. Plaintiffs also have experienced emotional pain and suffering as a result of Defendants’ discrimination.
113. Defendants’ failures to allow access to their services, benefits, activities, programs, or privileges and provide reasonable modifications and auxiliary aids and services are policies, regular practices, and/or customs of Defendants. These failures are ongoing.
114. Defendants’ failure to comply with the ADA has resulted, and will continue to result, in harm to Plaintiffs, as Plaintiffs will continue to be in the custody or under the supervision of Defendants and will continue to attempt participation in the services, programs, and activities described herein, without the equal access mandated by the ADA. The resulting harm will continue unless and until Defendants are ordered by this Court to make modifications to their policies, practices, and procedures pursuant to the ADA.
115. Defendants’ discriminatory treatment of Plaintiffs is done intentionally or with deliberate indifference to Plaintiffs’ protected rights.
116. Plaintiffs have been damaged by the conduct of Defendants, and Plaintiffs are entitled to compensatory damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00).
COUNT IV (29 U.S.C. § 794 – DISCRIMINATION AGAINST PLAINTIFFS BECAUSE OF BLINDNESS IN VIOLATION OF SECTION 504 OF THE REHABILITATION ACT) (DEFENDANTS DEPARTMENT OF PUBLIC SAFETY & CORRECTIONAL
SERVICES AND MOYER) Plaintiffs adopt and incorporate the preceding paragraphs as they appear above and say further:
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117. Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
118. Section 504 defines “program or activity,” in pertinent part, as “all of the operations of a department, agency, . . . or other instrumentality of a State; or the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended.” Id. § 794(b)(1). The requirements of Section 504 apply “to each recipient of Federal financial assistance from the Department of Justice.” 28 C.F.R. § 42.502.
119. Federally funded programs and activities may not “[d]eny a qualified handicapped person the opportunity accorded to others to participate” or “achieve the same benefits that others achieve” from the program or activity. Id. § 42.503(b)(1)(i)–(ii).
120. Recipients of federal funds are required to “insure that communications with their . . . beneficiaries are effectively conveyed to those having impaired vision.” Id. § 42.503(e).
121. The “criteria or methods of administration” of a recipient of federal funds may not “purposefully or in effect discriminate on the basis of handicap” or “defeat or substantially impair accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” Id. § 42.503(b)(3).
122. Furthermore, “[a] recipient that employs fifteen or more persons shall provide appropriate auxiliary aids to qualified handicapped persons with impaired sensory . . . skills where a refusal to make such provision would discriminatorily impair or exclude the persons in the program receiving federal financial assistance.” Id. § 42.503(f). Appropriate auxiliary aids
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include, but are not limited to, “brailed and taped materials, . . . readers, . . . [a]ttendants, individually prescribed devices, readers for personal use or study, or other devices of a personal nature.” Id. § 42.503(f).
123. A recipient may not “[i]ntimidate or retaliate against any individual, whether handicapped or not, for the purpose of interfering with any right secured by section 504.” Id. § 42.503(b)(1)(vii).
124. Defendants receive federal grants, thereby subjecting them to the requirements of Section 504. Defendants employ more than fifteen people.
125. RCI and, among other things, its Inmate Handbook and orientation materials, administrative grievance process, facilitation of communication between inmates and the courts, library, work programs, educational programs, building facilities, institutional mail system, and inmate housing are services, programs, or activities of Defendants.
126. Plaintiffs, as blind persons, are individuals with a disability within the meaning of Section 504.
127. As inmates of RCI, Plaintiffs are eligible to participate in and receive the benefits of each of these services, programs, or activities. Id. § 42.540(l)(2).
128. Defendants deny Plaintiffs equal access to and benefits from services, programs, and activities because of Plaintiffs’ blindness when they house Plaintiffs with lower classification security levels at RCI and when they refuse to consider the safety concerns of blind inmates when double-celling prisoners. They discriminate against Plaintiffs because of their blindness when they relegates them to jobs that provide lower pay and fewer diminution credits based on stereotypes about their abilities as blind individuals. Defendants discriminate against Plaintiffs because of their blindness when they refuse to provide competent literacy instruction to
28

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blind inmates. Retaliation by Defendants’ employees against inmates who assist Plaintiffs with the grievance or court processes also constitutes discrimination against Plaintiffs because of their blindness.
129. Defendants’ administration of inmate housing assignments has the effect of subjecting Plaintiffs to discrimination on the basis of their blindness and substantially impairing the objectives of the inmate housing program by subjecting Plaintiffs to exploitation and violence.
130. Defendants’ failures to provide reasonable modifications to the Inmate Handbook and orientation materials, grievance process, process for communicating with courts, library, work programs, educational programs, and institutional mail system, and their failures to provide appropriate auxiliary aids and services to allow Plaintiffs to access these programs and navigate RCI independently have subjected Plaintiffs to discrimination on the basis of their disability. Defendants deny Plaintiffs their right to equally and effectively participate in these services, programs, and activities while maintaining their independence and privacy. Defendants also have failed to ensure that communications with Plaintiffs through these services, programs, and activities are as effective as communications with sighted inmates.
131. Defendants have retaliated against Plaintiffs by revoking or restricting their privileges, harassing them, threatening to confiscate their property, and refusing to meet with them because of their participation in this litigation.
132. As a result of Defendants’ discriminatory policies and practices, Plaintiffs have suffered physical and sexual abuse, extortion, the disruption of their relationships with their loved ones, and severe anxiety and emotional distress. Plaintiffs also have been unable to initiate or complete the grievance or court processes or communicate effectively with their attorneys and
29

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have had their grievances and lawsuits dismissed. They have lost the opportunity to receive diminution credits, wages, and training in jobs with better opportunities for employment outside the prison. They have lost educational opportunities, including the opportunity to receive their GEDs and become literate in Braille, opportunities that are vital to their future employment. Some Plaintiffs have suffered the reduced freedom and access to programming that comes with housing in a more restrictive facility than necessary for people with their classification security levels. Plaintiffs also have experienced emotional pain and suffering as a result of Defendants’ discrimination.
133. Defendants’ failures to provide equal access to their services, benefits, activities, programs, or privileges, and provide reasonable modifications and auxiliary aids and services, are policies, regular practices, and/or customs of Defendant. These failures are ongoing.
134. Defendants’ failure to comply with Section 504 has resulted, and will continue to result, in harm to Plaintiffs, as Plaintiffs will continue to be in the custody or under the supervision of Defendants, and will continue to attempt to participate in the services, programs, and activities described herein, without the equal access mandated by Section 504. The resulting harm will continue unless and until Defendants are ordered by this Court to make modifications to their policies, practices, and procedures pursuant to Section 504.
135. Defendants’ discriminatory treatment of Plaintiffs is done intentionally or with deliberate indifference to their protected rights.
136. Plaintiffs have been damaged by the conduct of Defendants, and Plaintiffs are entitled to compensatory damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00).
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WHEREFORE, PLAINTIFFS respectfully request this Honorable Court to grant the following relief:
A. Enjoin Defendants from denying Plaintiffs equal and effective access to the Inmate Handbook and RCI orientation materials, grievance process, courts, library, work programs, educational programs, building facilities, institutional mail system, and to safe housing;
B. Enjoin Defendants from denying Plaintiffs the ability to read, write, conduct legal research, and navigate RCI without relying on sighted inmates;
C. Enjoin Defendants from double-celling Plaintiffs with sighted inmates without an option for single-celling;
D. Enjoin Defendants from retaliating against Plaintiffs for engaging in protected activity under the Americans with Disabilities Act and/or Rehabilitation Act;
E. Enjoin Defendants to award Plaintiffs diminution credits towards their release in an amount commensurate with Plaintiffs’ lost opportunities to earn such credits through work, educational, or training programs as a result of Defendants’ discriminatory actions;
F. Enjoin Defendants from housing inmates with lower classification security levels at RCI without an option for being housed at facilities commensurate with their classification security levels;
G. Award compensatory damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00) in favor of Plaintiffs and against Defendants;
H. Award punitive damages in the amount of Two Hundred Thousand and no/100 Dollars ($200,000.00) in favor of Plaintiffs and against Defendants;
I. Award Plaintiffs their costs and attorneys’ fees in this action; and J. Grant any and all additional relief Plaintiffs’ causes require.
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Date: September 7, 2016

Respectfully submitted,
/s/ Stephen Z. Meehan Federal Bar No. 23915
/s/ Damien Dorsey Federal Bar No. 19194
Prisoner Rights Information System of Maryland, Inc.
P.O. Box 929 Chestertown, Maryland 21620 (410) 778-1700 (phone) (410) 778-3543 (fax) smeehan@prisminc.org ddorsey@prisminc.org
/s/ Daniel F. Goldstein Federal Bar No. 01036
/s/ Joshua R. Treem Federal Bar No. 00037
Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, Maryland 21202 (410) 962-1030 (phone) (410) 385-0869 (fax) dfg@browngold.com jtreem@browngold.com
Attorneys for Plaintiffs

32

Case 1:16-cv-00945-RDB Document 23 Filed 09/07/16 Page 33 of 33 JURY TRIAL DEMAND
Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiffs, by their counsel, hereby demand a trial by jury on all claims so triable in this action.
/s/ Stephen Z. Meehan Federal Bar No. 23915
/s/ Damien Dorsey Federal Bar No. 19194
/s/ Daniel F. Goldstein Federal Bar No. 01036
/s/ Joshua R. Treem Federal Bar No. 00037
33

 
 Case 1:16-cv-00945-RDB Document 54 Filed 01/31/18 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Anthony Blue, et al.

Plaintiff(s)

vs.

Department of Public Safety and Correctional Services, et al.
Defendant(s)

* * * * * Case No.: 1:16−cv−00945−RDB * *
* * *****

ORDER OF REFERENCE TO UNITED STATES MAGISTRATE JUDGE

In accordance with 28 U.S.C. § 636 and Local Rules 301 and 302 of the United States Court for the District of Maryland, this case is hereby referred to the Honorable Stephanie A. Gallagher, United States Magistrate Judge, for said District, for the following purposes(s):

[ ]

For all proceedings and the entry of judgment in accordance with 28 U.S.C. §

636(c) by consent of the parties.

[x]

Settlement or other ADR conference.

[ ]

Discovery disputes as follows:

[ ]

All discovery and related scheduling matters.

[ ]

All discovery matters.

[ ]

Specifically,

[ ]

Hearing (if necessary), proposed findings of fact, and recommendations for the

disposition of motions to review administrative determinations in a Social

Security or related benefits case pursuant to 42 U.S.C. § 405(g).

[ ]

Ordering and conducting supplementary proceedings in accordance with Md. R.

Proc. 2−633.

[ ]

Reviewing a default judgment and/or making recommendations concerning

damages.

[ ]

Other

Date: January 31, 2018

___________/s/________________ Richard D. Bennett United States District Judge

 
 Case 1:16-cv-00945-RDB Document 85 Filed 12/21/18 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Anthony Blue, et al.

Plaintiff(s)

vs.

Department of Public Safety and Correctional Services, et al.
Defendant(s)

* * * * * Case No.: 1:16−cv−00945−RDB * *
* * *****

ORDER OF REFERENCE TO UNITED STATES MAGISTRATE JUDGE

In accordance with 28 U.S.C. § 636 and Local Rules 301 and 302 of the United States Court for the District of Maryland, this case is hereby referred to the Honorable Beth P. Gesner, United States Magistrate Judge, for said District, for the following purposes(s):

[ ]

For all proceedings and the entry of judgment in accordance with 28 U.S.C. §

636(c) by consent of the parties.

[ ]

Settlement or other ADR conference.

[x]

Discovery disputes as follows:

[ ]

All discovery and related scheduling matters.

[x]

All discovery matters.

[ ]

Specifically,

[ ]

Hearing (if necessary), proposed findings of fact, and recommendations for the

disposition of motions to review administrative determinations in a Social

Security or related benefits case pursuant to 42 U.S.C. § 405(g).

[ ]

Ordering and conducting supplementary proceedings in accordance with Md. R.

Proc. 2−633.

[ ]

Reviewing a default judgment and/or making recommendations concerning

damages.

[ ]

Other

Date: December 21, 2018

___________/s/________________ Richard D. Bennett United States District Judge

 
 Case 1:16-cv-00945-RDB Document 100 Filed 01/10/19 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ANTHONY BLUE STEVEN BROWN WILBERT DELANO GREGORY HAMMOND SEDRIC HOLLEY RUSSELL HOPKINS JOHNNIE JAMES TYRELL POLLEY MAYNARD SNEED ROBERT WILSON,
Plaintiffs,

* * * * * * Civil Action No. RDB-16-945 *

v.

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DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES

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STEPHEN MOYER DAYENA M. CORCORAN

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RICHARD MILLER,

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Defendants.

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DEFENDANTS’ MOTION TO DISMISS

PLAINTIFFS’ FIRST AMENDED COMPLAINT

Defendants Stephen Moyer, the Secretary of Public Safety and Correctional Services; Dayena

Corcoran, the former Commissioner of Correction; Richard Miller, the former warden of the Roxbury

Correctional Institution; and the Department of Public Safety and Correctional Services, by their

undersigned attorneys, hereby move under Fed. R. Civ. P. 12(b)(6) to dismiss the plaintiffs’ First

Amended Complaint for failure to state a claim upon which relief can be granted, as set forth more

fully in the attached memorandum of law, which is incorporated herein by reference.

Respectfully submitted,

Case 1:16-cv-00945-RDB Document 100 Filed 01/10/19 Page 2 of 2
BRIAN E. FROSH Attorney General of Maryland
/s/ STEPHANIE LANE-WEBER TERESA M. KELLY Assistant Attorneys General St. Paul Plaza - 19th Floor 200 St. Paul Place Baltimore, Maryland 21202 (410) 576-7962 (Telephone) (410) 576-6880 (Telefax) E-mail: tkelly@oag.state.md.us E-mail: slaneweber@oag.state.md.us Attorneys for Defendants
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 10th day of January, 2019, a copy of the foregoing
Defendants’ Motion to Dismiss and Memorandum in support thereof were sent electronically via
PACER to:
Jessica P. Weber, Esq. Abigail A. Graber, Esq. Eve L. Hill, Esq. Brown Goldstein and Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, Maryland 21202 jweber@browngold.com agraber@browngold.com ehill@browngold.com
Stephen Z. Meehan, Esq. Damien Dorsey, Esq. Prisoner Rights Information Systems of Maryland, Inc. PO Box 929 Chestertown, Maryland 21620 smeehan@prisminc.org ddorsey@prismine.org
Attorneys for Plaintiffs
/s/ Stephanie Lane-Weber
2

 
 Case 1:16-cv-00945-RDB Document 237 Filed 05/20/19 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

STEVEN BROWN, et al.,
Plaintiffs,
v.
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, et al.,
Defendants.

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*

CIVIL ACTION NO. RDB-16-945

*

*

*

*

*

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*

*

*

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JOINT MOTION FOR STAY

Plaintiffs and Defendants jointly move the Court to stay this litigation. The parties have

reached agreement on the terms of a settlement agreement and expect to sign the agreement

shortly. Under the contemplated settlement agreement, Plaintiffs will move to dismiss their

claims with prejudice after the Board of Public Works approves the monetary terms of the

agreement. Therefore, the parties respectfully request that this litigation be stayed, including all

pre-trial and trial dates, as well as deadlines for responding to pending motions in limine,

pending a decision by the Board of Public Works. The parties will promptly notify the Court of

any action taken by the Board of Public Works with respect to the settlement agreement.

A proposed order is attached.

Date: May 20, 2019

Respectfully submitted,
/s/ Stephen Z. Meehan (Federal Bar No. 23915) Damien Dorsey (Federal Bar No. 19194) Prisoner Rights Information System of MD, Inc. P.O. Box 929 Chestertown, Maryland 21620

Case 1:16-cv-00945-RDB Document 237 Filed 05/20/19 Page 2 of 3
Telephone: 410-528-1400 Telecopier: 410-528-1550 Electronic Mail: smeehan@prisminc.org
/s/ Eve L. Hill (Federal Bar No. 19938) Jessica P. Weber (Federal Bar No. 17893) Abigail Graber (Federal Bar No. 19727) James T. Fetter (Federal Bar No. 20727) Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, Maryland 21202 (410) 962-1030 (phone) (410) 385-0869 (fax) ehill@browngold.com agraber@browngold.com jweber@browngold.com jfetter@browngold.com
Attorneys for Plaintiffs
Brian E. Frosh Attorney General
/s/ Robert A. Scott (Fed. Bar # 24613) Jennifer L. Katz (Fed. Bar # 28973) John M. Leovy (Fed. Bar # 20803) Kirstin Lustila (Fed. Bar # 02103) Assistant Attorneys General 200 St. Paul Place, 20th Floor Baltimore, Maryland 21202 410-576-7055 (tel.); 410-576-6955 (fax) rscott@oag.state.md.us jkatz@oag.state.md.us
Lisa O. Arnquist (Fed. Bar No. 25338) Michael O. Doyle (Fed. Bar No. 11291 Assistant Attorneys General Department of Public Safety & Correctional Services 300 E. Joppa Road, Suite 1000 Towson, Maryland 21286
2

Case 1:16-cv-00945-RDB Document 237 Filed 05/20/19 Page 3 of 3 (410) 339-7568 (410) 764-5366 (facsimile) lisa.arnquist@maryland.gov michaelo.doyle@maryland.gov Attorneys for Defendants
3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

STEVEN BROWN WILBERT DELANO GREGORY HAMMOND SEDRIC HOLLEY RUSSELL HOPKINS JOHNNIE JAMES TYRELL POLLEY MAYNARD SNEAD ROBERT WILSON,
Plaintiffs,
v.
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES STEPHEN MOYER DAYENA M. CORCORAN RICHARD MILLER,
Defendants.

* * * * * *
Civil Action No. RDB-16-945 * * * * * *

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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

i

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 LEGAL STANDARD......................................................................................................................2
I. LEGAL PRINCIPLES APPLICABLE TO § 1983 CLAIMS SEEKING TO HOLD GOVERNMENTAL OFFICIALS PERSONALLY LIABLE FOR PURPORTED VIOLATIONS OF CONSTITUTIONAL RIGHTS. ......................................................................13
II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ § 1983 ACCESS TO COURTS CLAIM AGAINST SECRETARY MOYER, COMMISSIONER CORCORAN, AND WARDEN MILLER. .................................................................................15 A. Plaintiffs Overstate their Denial of Access to Courts Claim...................................16 B. The Undisputed Record Evidence Demonstrates that Defendants Are Entitled to Summary Judgment. ..............................................................................19 1. Plaintiffs Were Not Deprived of Access to Courts. ...........................................19 2. Plaintiffs Cannot Demonstrate Any Actual Injury.............................................22 C. Plaintiffs Have Failed to Establish the Personal Involvement or Supervisory Liability of the Defendants. ................................................................30
III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ § 1983 DELIBERATE INDIFFERENCE FAILURE TO PROTECT CLAIM AGAINST SECRETARY MOYER, COMMISSIONER CORCORAN, AND WARDEN MILLER...........................................32 A. Plaintiffs Cannot Establish that They Were Exposed to a Substantial Risk of Serious Harm. .............................................................................................34 B. Plaintiffs Cannot Establish that Defendants Were Deliberately Indifferent to a Substantial Risk of Serious Harm. .................................................39
IV. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY FROM PLAINTIFFS’ CONSTITUTIONAL CLAIMS.................................................................................................43
V. PLAINTIFFS’ ADA CLAIM IS BARRED BY THE ELEVENTH AMENDMENT............................45 VI. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT WITH REGARD TO
PLAINTIFFS’ REQUEST FOR INJUNCTIVE RELIEF BECAUSE PLAINTIFFS CANNOT DEMONSTRATE ENTITLEMENT TO AN INJUNCTION. ...........................................................46 CONCLUSION ..............................................................................................................................50
i

TABLE OF AUTHORITIES

Pages

Cases

A Society Without a Name v. Virginia, 655 F.3d 342 (4th Cir. 2011) ......................................................................................... 26

Abdul–Akbar v. Watson, 4 F.3d 195 (3d Cir.1993) ............................................................................................... 47

Adams v. Rice, 40 F.3d 72 (4th Cir. 1994) ............................................................................................. 17

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ........................................................................................................ 2

Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1995) ................................................................................... 17, 32

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ................................................................................................ 44, 45

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................................... 14

Ball v. LeBlanc, 792 F.3d 584 (5th Cir. 2015) ......................................................................................... 48

Barnes v. Young, 565 F. App’x 272 (4th Cir. 2014) ............................................................................ 45, 46

Booker v. S.C. Dep’t of Corr., 855 F.3d 533 (4th Cir. 2017) ......................................................................................... 17

Brice v. Va. Beach Corr. Center, 58 F.3d 101 (4th Cir. 1995) ............................................................................................ 39

Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009) ......................................................................................... 32

Brown v. Plata, 563 U.S. 493 (2011) ...................................................................................................... 48

Bounds v. Smith, 430 U.S. 817 (1977) ................................................................................................ 16, 18

ii

Christopher v. Harbury, 536 U.S. 403 (2002) .......................................................................................... 22, 23, 27
City & Cty. of San Francisco, Calif. v. Sheehan, 135 S.Ct. 1765 (2015) ................................................................................................... 45
Cox v. Quinn, 828 F.3d 227 (4th Cir. 2016) ......................................................................................... 42
Cray Communications v. Novatel, 33 F.3d 390 (4th Cir. 1994) ............................................................................................. 2
Danser v. Stansberry, 772 F.3d 340 (4th Cir. 2014) .......................................................................................... 33
De’Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003) ......................................................................................... 34
DeMallory v. Cullen, 855 F.2d 442 (7th Cir.1988) .......................................................................................... 18
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) ...................................................................................................... 47
Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2013) ......................................................................................... 14
Farmer v. Brennan, 511 U.S. 825 (1994) ................................................................................................ 33, 43
FDIC v. Cashion, 720 F.3d 169 (4th Cir. 2013) ........................................................................................... 3
Feldman v. Law Enforcement Associates Corp., 752 F.3d 339 (4th Cir. 2014) ........................................................................................... 2
Fonseca v. McNeil, 2009 WL 196095 (D.Fla.2009) ..................................................................................... 21
Harlow v. Fitzgerald, 457 U.S. 800 (1982) ...................................................................................................... 43
Henderson v. Johnson, 1 F.Supp.2d 650 (N.D.Tex.1998) .................................................................................. 21
iii

Henry v. Purnell, 652 F.3d 524 (4th Cir. 2011) ........................................................................................... 3
Hope v. Pelzer, 536 U.S. 730 (2002) ...................................................................................................... 44
Jackson v. Lightsey, 775 F.3d 170 (4th Cir. 2014)......................................................................................... 39
James v. Cotter, No. CV 9:14-4518-TLW-BM, 2017 WL 7054157 (D.S.C. Sept. 19, 2017) ................. 26
Jefferson v. Wooten, 10-CV-2927 JFM, 2011 WL 3511036 (D. Md. Aug. 9, 2011) ...................................... 36
Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180 (4th Cir. 1999) ......................................................................................... 26
Jones v. Chandrasuwan, 820 F.3d 685 (4th Cir. 2016)......................................................................................... 43
Jong Pil Park v. Diaz, No. SACV 12-1835, 2013 WL 4008762 (C.D. Cal. Aug. 5, 2013) .............................. 21
Koenig v. Maryland, No. Civ.A. CCB-09-3488, 2010 WL 148706 (D. Md. Jan. 13, 2010) .......................... 48
Landy v. Isenberg, 14-CV-501 PWG, 2015 WL 5289027 (D. Md. Sept. 9, 2015)...................................... 36
Legend Night Club v. Miller, 637 F.3d 291 (4th Cir. 2011) ......................................................................................... 47
Lewis v. Casey, 518 U.S. 343 (1996) ...................................................... 16, 17, 18, 21, 22, 24, 25, 28, 29
Libertarian Party of Va. v. Judd, 718 F.3d 308 (4th Cir. 2013) ........................................................................................... 3
Makdessi v. Fields, 789 F.3d 126 (4th Cir. 2015)......................................................................................... 33
Mann v. Adams, 855 F.2d 639 (9th Cir. 1988) ......................................................................................... 17
iv

Mason v. Corr. Med. Servs., Inc., 559 F.3d 880 (8th Cir. 2009) ......................................................................................... 35
McCann v. Shearin, 13-Civ-3693-RWT, 2015 WL 3753764 (D. Md. June 11, 2015) .................................. 35
Mims v. Williams, No. 1:08CV521-01-MU, 2009 WL 454598 (W.D.N.C. Feb. 23, 2009) ....................... 16
Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (1984) ........................................................................................................ 3
O’Dell v. Netherland, 112 F.3d 773 (4th Cir. 1997) ......................................................................................... 22
Odom v. S.C. Dept. of Corr., 349 F.3d 765 (4th Cir. 2003) ................................................................................... 42, 43
Owens v. Lott, 372 F.3d 267 (4th Cir. 2004)......................................................................................... 44
Owuor v. Welch, No. 2:09-CV-1098-CSC, 2012 WL 4513618 (M.D. Ala. Oct. 1, 2012) ....................... 27
Parrish ex rel. Lee v. Cleveland, 372 F.3d 294 (4th Cir. 2004) .......................................................................................... 39
Pearson v. Callahan, 555 U.S. 223 (2009) ................................................................................................ 43, 44
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)......................................................................................................... 15
Pevia v. Comm’r of Corr., No. CV ELH-17-0273, 2018 WL 4052244 (D. Md. Aug. 24, 2018) ............................ 19
Raynor v. Pugh, 817 F.3d 123 (4th Cir. 2016) .......................................................................................... 33
Rendelman v. Rouse, 569 F.3d 182 (4th Cir. 2009) ......................................................................................... 46
Rhodes v. Chapman, 452 U.S. 337 (1981) ...................................................................................................... 35
v

Rice v. Turner, No. 4:17CV2684, 2018 WL 3067767 (N.D. Ohio June 21, 2018) ............................... 25
Rich v. Bruce, 129 F.3d 336 (4th Cir. 1997) .................................................................................... 34, 39
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292 (4th Cir. 2006)......................................................................................... 44
Ruefly v. Landon, 825 F.2d 792 (4th Cir. 1987) .......................................................................................... 34
Savko v. Rollins, 749 F. Supp. 1403 (D. Md. 1990) ................................................................................. 19
Scott v. District of Columbia, 139 F.3d 940 (D.C.Cir.)................................................................................................. 46
Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994)).................................................................................... 14, 31
Spencer v. Earley, 278 F. App’x 254 (4th Cir. 2008) .................................................................................. 45
Strickler v. Waters, 989 F.2d 1375 (4th Cir.1993) ...................................................................... 16, 17, 18, 29
Thompson v. Carter, 284 F.3d 411 (2nd Cir. 2002) .....................................................................................46-7
Thompson Everett, Inc. v. National Cable, 57 F.3d 1317 (4th Cir. 1995) ........................................................................................... 3
United States v. Georgia, 546 U.S. 151 (2006) ...................................................................................................... 45
Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir. 1977) ......................................................................................... 13
Wagner v. Gober, No. 4:15-CV-1789 CAS, 2017 WL 2984841 (E.D. Mo. July 13, 2017)....................... 25
Wells v. Thaler, 460 F. App’x 303 (5th Cir. 2012) ............................................................................ 16, 35
vi

Whitley v. Albers, 417 U.S. 312 (1986)....................................................................................................... 34
Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) ........................................................................................................ 46
Williams v. Griffin, 952 F.2d 820 (4th Cir. 1991) ......................................................................................... 46
Wilson v. Layne, 526 U.S. 603 (1999) ...................................................................................................... 44
Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) ........................................................................................... 3
Young-Bey v. Kennedy, No. CIV.A. JFM-12-0162, 2013 WL 1976004 (D. Md. May 10, 2013) ....................... 23
Statutes & Rules 18 U.S.C. § 3626 ......................................................................................................... 47, 48
(Prisoner Litigation Reform Act) 29 U.S.C. § 794 ............................................................................................................. 2, 48
(Rehabilitation Act, Section 504) 42 U.S.C § 1983 .................................................................................................. 1, 2, 13, 15 42 U.S.C. §§ 12131-12165, 12201-12213........................................................................... 2
(Americans with Disabilities Act, Title II) Fed. R. Civ. P. 12(b)(6) ........................................................................................................ 2 Fed. R. Civ. P. 56 ................................................................................................................. 2 Md. Code Ann, Health Gen. § 8-505(a)(1)(i) ................................................................... 24 Md. Code Ann, Health Gen. § 8-507................................................................................. 24 Md. Code Ann., Cts. & Jud. Proc. § 5-101........................................................................ 26
vii

INTRODUCTION At the time plaintiffs filed suit in 2016, they were all incarcerated at the Roxbury Correctional Institution (“RCI”), an institution of the Maryland Division of Correction (“DOC”). Five of the plaintiffs have since been released from DOC custody. Each plaintiff initially filed his complaint in proper person in a separate action,1 and those actions were subsequently consolidated upon the entry of appearance of counsel employed by the Prisoner Rights Information System of Maryland, see ECF 24. Following the appearance of additional counsel on behalf of the plaintiffs, an amended complaint was filed on September 7, 2016, see ECF No. 23. In their amended complaint, plaintiffs, who allege that they are blind or otherwise visually impaired, seek to hold senior officials of the Department of Public Safety and Correctional Services (“the Department”) personally liable for purportedly denying their constitutional rights while they were incarcerated at RCI. The named individual defendants in the complaint are Stephen Moyer, the Secretary of Public Safety and Correctional Services; Dayena Corcoran, the former Commissioner of Correction; and Richard Miller, the former warden of RCI. Plaintiffs bring suit under 42 U.S.C § 1983 against the individual defendants in their individual and official capacities for alleged violations of the First, Eighth, and Fourteenth Amendments to the United States
1 See RDB-16-947, ECF No. 1 (pro se complaint of Steven Brown); RDB-16-948, ECF No. 1 (pro se complaint of Robert Wilson); RDB-16-949, ECF No. 1 (pro se complaint of Maynard Snead); RDB-16-950, ECF No. 1 (pro se complaint of Russell Hopkins); RDB16-951, ECF No. 1 (pro se complaint of Tyrell Polley); RDB-16-952, ECF No. 1 (pro se complaint of Gregory Hammond); RDB-16-953, ECF No. 1 (pro se complaint of Sedric Holley); RDB-16-954, ECF No. 1 (pro se complaint of Wilbert Delano); RDB-16-946, ECF No. 1 (pro se complaint of Johnnie James).
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Constitution. Plaintiffs have also sued the Department and Secretary Moyer under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12165, 12201-12213, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehab Act”).
Defendants previously moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that it failed to state a plausible claim for relief. See ECF No. 100. Although a decision has not yet been rendered on defendants’ Rule 12(b)(6) motion, the parties have now largely completed discovery in this matter. For the reasons set forth below, defendants now move for summary judgment on all of plaintiffs’ claims against the defendants under § 1983, as well as all claims for injunctive relief under any theory of liability, on the ground that there remains no genuine dispute of material fact for a jury to decide, and defendants are therefore entitled to judgment as a matter of law.
LEGAL STANDARD Under Rule 56 of the Federal Rules of Civil Procedure, a district court “shall grant summary judgment” if the pleadings, affidavits, depositions and other materials in the record “show that there is no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 mandates the entry of summary judgment where, after adequate time for discovery, the non-moving party fails to come forth with proof sufficient to establish an essential element of its claim upon which it will bear the burden of proof at trial. Feldman v. Law Enforcement Associates Corp., 752 F.3d 339, 348 (4th Cir. 2014); Cray Communications v. Novatel, 33 F.3d 390, 393 (4th Cir. 1994), cert. denied, 513 U.S. 1191 (1995).
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In order to survive a properly-supported motion for summary judgment, the nonmoving party must present evidence from which a reasonable fact-finder could return a verdict in its favor. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 768 (1984). The mere existence of some disputed fact does not require denial of the motion. Thompson Everett, Inc. v. National Cable, 57 F.3d 1317, 1322 (4th Cir. 1995). Rather, the disputed facts must be material to an issue necessary for resolution of the case and the quality and quantity of the evidence offered to create a question of fact must be adequate to support a verdict. Id.; FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013).
STATEMENT OF UNDISPUTED FACTS As noted, plaintiffs allege varying degrees of visual impairment.2 (Am. Compl. ¶¶ 13-21). During their incarcerations, plaintiffs were incarcerated in Department institutions, primarily at RCI, at different times as described herein. Plaintiff Steven Brown has been incarcerated at RCI since 2007, and except for a short period of time in 2013, he has been assigned to a single cell with no cellmate. (See Exhibit 1, Deposition Transcript of Steven Brown (“Brown Dep.”) 25:11 – 26:7, 28:12-14). Plaintiff Wilbert Delano was incarcerated from 2007 until October of 2018, and was housed at RCI for approximately six years. (See Exhibit 2, Deposition Transcript of Wilbert Delano (“Delano Dep.) 11:18-20, 15:15-21, 16:17 – 17:20, 11:18-20). Delano was assigned to a single cell while he was at RCI. (Delano Dep. 37:14 – 38:13). Plaintiff Gregory Hammond was incarcerated from 2011 to
2 Defendants do not contest this fact for the sole purposes of the instant motion, but reserve their right to do so at a later date, including at trial.
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2017, and was housed at RCI from early 2016 to near the end of 2016. (See Exhibit 3, Deposition Transcript of Gregory Hammond Dep. 9:2 – 10:3). He was assigned to a double cell with another inmate. (Hammond Dep. 16:3-9). Plaintiff Sedric Holley was incarcerated from August of 2009 until October of 2017, and was housed at RCI from 2010 until his release in 2017. (See Exhibit 4, Deposition Transcript of Sedric Holley Dep. 9:8-14, 14:28). Holley was assigned to a single cell the entire time he was housed at RCI. (Holley Dep. 18:19 – 19:2).
Plaintiff Russell Hopkins was incarcerated from July 2014 until August of 2018, and was housed at RCI from July 2015 until he was released. (See Exhibit 5, Deposition Transcript of Russell Hopkins (“Hopkins Dep”) 20:15 – 21:8, 32:8 – 33:11, 62:18-22). At RCI, Hopkins was double-celled until 2016 and was then given a single cell until he was released. (Hopkins Dep. 118:15 – 119:1). Plaintiff Johnnie James has been incarcerated at RCI since 2013 and has been assigned to a single cell with no cellmate that entire period. (See Exhibit 6, Deposition Transcript of Johnny James (“James Dep.”) 2:1-8, 10:11—14, 36:9-14, 50:9 – 51:18). Plaintiff Tyrell Polley was incarcerated at RCI from November of 2015 until October of 2016 when he was released. (See Exhibit 7, Deposition Transcript of Tyrell Polley (“Polley Dep.”) 9:5 – 10:9, 15:9-21). Polley was housed in a single cell for approximately three months, and a double cell the remainder of his incarceration. (Polley Dep. 15:9-21).
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Plaintiff Maynard Snead3 has been incarcerated at RCI since 2002. (See Exhibit 8, Deposition Transcript of Maynard Snead (“Snead Dep.”) 12:10 – 14:4). Snead was housed in a double cell until 2014, but has been in a single cell since then. (Snead Dep. 95:1-12). Plaintiff Robert Wilson has been incarcerated since August of 2013. (See Exhibit 9, Deposition Transcript of Robert Wilson (“Wilson Dep.”) 18:18 – 19:14). He was housed at RCI until March 2017, where he had a single cell for a few months, and then a double cell thereafter. (Wilson Dep. 22:10 – 23:6, 36:3-4). After a few transfers, he went to Eastern Correctional Institution (“ECI”) in September of 2017, where he has had a single cell since November of 2017. (Wilson Dep. 90:13 – 91:22). On February 14, 2019, he was transferred back to RCI. See Exhibit 10, Wilson Traffic History.
Stephen Moyer has been the Secretary of the Department since January 2015.4 (See Exhibit 11, Deposition Transcript of Steven T. Moyer (“Moyer Dep.”) 18:5-16). As Secretary, he manages approximately 10,000 employees and a $1.4 billion budget. (Moyer Dep. 32:9 – 33:15). This requires him to prepare for and participate in budgetary hearings and meetings with the Governor’s Office and the Department of Legislative Affairs, to testify before the Legislature, and to monitor approximately 3,000 pending bills. (Moyer
3 In the amended complaint, plaintiff's last name is spelled “Sneed,” which is the name under which plaintiff was committed to the custody of the Department. However, on motion of the plaintiffs, see ECF No. 29, the Court granted plaintiffs’ request to amend the docket to reflect that plaintiff’s last name is spelled “Snead.” ECF No. 42. Accordingly, that spelling will be used in this motion. 4 On March 7, 2019, Secretary Moyer announced his departure from State service, effective the end of March, for a position as Public Safety Director for the Sarasota Memorial Health Care System in Florida. See https://news.maryland.gov/dpscs/home (accessed March 15, 2019).
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Dep. 36:2 – 37:11). Additionally, Secretary Moyer routinely meets with other cabinet members and the Governor’s Office. (Moyer Dep. 37:12 – 38:1). As Secretary, he has limited involvement in the daily operations of the individual facilities, including RCI. (Moyer Dep. 32:2 -34:5).
Secretary Moyer has never had any communications or interactions with the plaintiffs. (Moyer Dep. 13:17 – 14:3). He is not directly involved in the housing or cell assignments of inmates, including blind inmates (Moyer Dep. 71:10-13, 725-18, 82:2-12, 88:13 – 89:12), in the educational or work programs available to blind inmates (Moyer Dep. 84:11-19, 87:14 – 88:1, 89:2-12, 90:10 – 91:1, 92:14 – 93:7), in the “walker” program (101:16-18, 102:14 – 103:5), in the processes by which inmates address any ADA-related concerns (Moyer Dep. 56:21 – 57:21, 60:15-19, 81:1 – 82:12), in the Administrative Remedy Procedure (“ARP”) (Moyer Dep. 99:11-19, 100:9 – 101:15), or generally in inmate requests for specific accommodations (Moyer Dep. 56:21 – 57:21, 60:15-19, 81:111, 90:20 – 91:1).
Dayena Corcoran was Commissioner of Correction for the Department from 2016 until September 2018. (See Exhibit 12, Deposition Transcript of Dayena Corcoran (“Corcoran Dep.”) 46:10-12, 48:2-10). As Commissioner, she was responsible for managing all DOC institutions, implementing and enforcing DOC policies, conducting audits of the Division, and serving as a liaison to the greater community and other organizations. (Corcoran Dep. 46:10 – 47:17, 99:3-20). She also managed the wardens at all DOC facilities. Id. The individual institutions within DOC set their own policies and
6

procedures and have the authority to manage internal issues without the Commissioner’s involvement. (Corcoran Dep. 49:16 – 50:8).
The Commissioner had no involvement in inmate housing assignments (Corcoran Dep. 203:5-13, 210:20 – 211:19), or formal training of staff members, but would advise administrators regarding new policies. (Corcoran Dep. 100:14 – 101:15). If inmates contacted the Commissioner with a complaint arising from their facility, the Commissioner would respond or refer the complaint to the appropriate person to address it. (Corcoran Dep. 145:8 – 147:1). If inmates filed a complaint through the Administrative Remedy Procedure or the Inmate Grievance Office, the Commissioner’s involvement would typically be limited to signing off on a facility’s final decision or communicating with a warden about what actions are being taken. (Corcoran Dep. 142:20 – 144:1, 246:17 – 247:15).
Richard Miller was the Warden at RCI from April 2015 until November 2017. (See Exhibit 13, Deposition Transcript of Richard Miller (“Miller Dep.”) 25:10-16). As Warden, he was responsible for managing the operation of the entire facility and a budget of over $55 million. (Miller Dep. 44:2-7, 106:3-9). During his time at RCI, there were over 400 employees and nearly 1,800 inmates under his management. (Miller Dep. 57:2 – 58:2).
One month after Warden Miller began his tenure as Warden of RCI, he received correspondence from plaintiff Sedric Holley which included a copy of a grievance Holley had filed in 2011 regarding programs or services he could not participate in as a result of his visual impairment. (Miller Dep. 93:9 – 96:14). In July of 2012, in response to Holley’s grievance, RCI installed a computer work station in the library with software to assist blind
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and visually impaired inmates; assigned a library aide trained in using the software to train and assist blind and visually impaired inmates; enabled inmates to obtain books on tape and audio readers; and implemented a policy to allow blind and visually impaired inmates to be escorted to the recreation hall and other activities in advance of general population movement. (See Exhibit 14, Proposed Decision in Sedric Holley v. Maryland Division of Correction, S Holley 000001 – 000014; Exhibit 15, Communication dated July 30, 2012 from J. Michael Stouffer to Gary Maynard, Holley 000423). Warden Miller reviewed documents pertaining to the 2011 grievance and spoke to RCI staff members to determine whether RCI was in compliance with the grievance decision. (Miller Dep. 95:10 – 96:14). Based upon this, Warden Miller believed RCI was in compliance with the grievance decision. Id.5
Warden Miller also assigned staff members to work on obtaining additional services for visually impaired inmates, including life skills training and improvements to the GED program. (Miller Dep. 90:5 – 91:3, 96:7 – 97:1, 97:17 – 98:6). Warden Miller was informed that the Hadley School was retained to provide materials and training for vision impaired inmates, including Braille training, that aides were trained to work directly with visually
5 As noted infra at p. 26, because this action was filed in March 2016, any claim based on conduct occurring prior to March 2013 is barred by the applicable statute of limitations. Thus, this information regarding Warden Miller’s review of the actions taken to comply with the 2012 administrative order issued in response to Holley’s 2011 grievance is included to demonstrate that Warden Miller, during his tenure as warden in 2015-2017, did not engage in any conduct that deprived a plaintiff of a constitutional right, and had no knowledge that any subordinate was engaged in such conduct. See argument at infra pp. 13, 29-31. Any claim by plaintiffs regarding purported constitutional violations occurring in 2011 or 2012 are untimely.
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impaired inmates, and he procured audio books and equipment to listen to audio books, and subsequently software to enable visually impaired inmates to create documents on the computer. (Miller Dep. 115:1 – 117:17, 118:13 – 119:12). When the instant lawsuit was filed, Warden Miller then participated in discussions with plaintiffs’ counsel to determine what auxiliary aids and services plaintiffs were requesting and what was reasonable and feasible for RCI to provide. (Miller Dep. 121:8 – 122:8).
The following auxiliary aids and services are currently being provided to visually impaired inmates at RCI. (See Exhibit 16, Declaration of Warden Casey Campbell).
Access to educational programs, classes, and services  Braille training classes provided by the Hadley school  Cane training classes and additional support meetings by Blind Industries of Maryland (“BISM”)  Tutors for visually impaired inmates available in the Education Department  Inmate library aides available in library to assist visually impaired inmates with all library services. Library aide is a preferred job that requires a GED or high school diploma among its eligibility requirements.
Independent Reading and Writing The RCI library is equipped with the following items for visually impaired inmates:
 Computer software and other auxiliary aides that enable printed documents to be scanned and converted to text-speech, including a SARA-CE scanner and a DaVinci Pro HC/OCR with 24” monitor
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 3 Dell computer workstations dedicated for use by visually impaired and blind inmates with software to enable them to read and type, in addition to 3 Microsoft lifechat headsets and microphones
 Various magnification devices, including the Optelec Clear Reader Advanced and Ruby HD Handheld Video Magnifier
 Various devices to enable reading and writing Braille, including a Read and Write Slate and Electric Perkins Brailler
 Access to the Library for the Blind and Physically Handicapped bi-monthly audio tape ordering catalogs. Ear phones and audio tape players are provided to each blind or visually impaired inmate for personnel use in their cells.
Navigation  Early start to meals and recreation periods  Visually-impaired inmates are housed in the tier closest to the dining hall, recreation area, library, and medical services  Inmate assistant or escort assigned upon request. Eligibility to become assistant or escort requires housing at RCI for a minimum of 120 days, off disciplinary segregation for a minimum of 180 days, off cell restriction for a minimum of 90 days, and no sex offense convictions. Case management personnel exercise discretion in choosing inmates who meet eligibility requirements.
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 Inmate assistants are counseled on their responsibilities, which include escorting inmates to all pass locations and appointments, escorting during an emergency evacuation with staff guidance, and other duties outlined below.
 Separate library and recreation periods available for visually impaired inmates, in addition to the general library and recreation periods they may attend with their housing unit
 Cane training by BISM and Medical Department Handbook and Orientation Materials
 Institutional Bulletins and Directives provided in large print and on video CD in the library, and can be viewed with imaging materials
 Institutional Bulletins are also shown on the inmate television service, aired multiple times per week
 Inmate handbook available on audio CD for visually impaired inmates upon request
 New 2019 Inmate Handbook ordered in large print and on audio CD, and will be offered to all visually-impaired inmates
 Aforementioned reading devices may additionally be utilized for reading Grievances and lawsuits
 Aforementioned reading/writing aids and services may be used to assist with filing ARPs and grievances
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 Case Management staff, ARP/IGO Coordinator, the RCI Librarian, library aides, and other correctional staff are available to assist with ARPs and grievances upon request
 Inmate assistants are counseled on their additional duties to assist with written correspondence if needed, including ARP/IGO forms and departmental requests
Other Accessibility Services  Medical department provides all medical services to visually-impaired inmates, including training on cane use for any inmates provided with canes  Inmate assistants are counseled on their duties to assist visually impaired inmates in learning to complete daily tasks, including cleaning, laundry, and attending meals in dining hall, and with any written correspondence, including sick call requests  Inmate assistants are instructed to direct any questions or concerns regarding any of their duties to the Housing Unit Officer in Charge  Private religious counseling available to visually impaired inmates  Sanitation of cell may be done by visually impaired inmate, an inmate assistant, or an inmate sanitation worker, with correctional officer available for supervision and safety
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Single Cell Housing  Single cell status may be granted based upon a medical determination by medical staff, a psychological determination by psychology staff, or a security determination by security staff, including the RCI Administration  Plaintiffs Brown, James, and Snead are currently assigned to single cells
ARGUMENT I. LEGAL PRINCIPLES APPLICABLE TO § 1983 CLAIMS SEEKING TO
HOLD GOVERNMENTAL OFFICIALS PERSONALLY LIABLE FOR PURPORTED VIOLATIONS OF CONSTITUTIONAL RIGHTS. To establish personal liability against the defendants under § 1983, plaintiffs must demonstrate that the defendants were personally involved in unconstitutional conduct that resulted in injury. It is well settled that liability under 42 U.S.C. § 1983 must be premised on personal conduct of the defendant and cannot rest on a theory of respondeat superior or any other type of vicarious liability. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (for liability to arise under § 1983, state official must have acted personally to cause a deprivation of constitutional rights). Absent an allegation of direct involvement by a supervisor in causing an injury, a supervisor may be held liable only if the plaintiff demonstrates that: (1) the supervisor had “knowledge that his subordinate was engaged in conduct that posed a ‘pervasive and unreasonable risk’ of constitutional injury” to plaintiff; (2) the supervisor’s response “was so inadequate as to show ‘deliberate indifference to or tacit authorization of’” the alleged
13

conduct; and (3) “‘an affirmative causal link’ between the supervisor’s inaction” and the plaintiff’s injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations omitted).
“[T]he Supreme Court explained in [Ashcroft v. Iqbal, 556 U.S. 662 (2009)]. that ‘a supervisor’s mere knowledge’ that his subordinates are engaged in unconstitutional conduct is insufficient to give rise to liability; instead a supervisor can only be held liable for ‘his or her own misconduct.’” Evans v. Chalmers, 703 F.3d 636, 660-61 (4th Cir. 2013) (quoting Iqbal, 556 U.S. at 677). Thus, “‘a plaintiff must plead that each [supervisory] defendant, through the official’s own individual actions, has violated the Constitution.’” Chalmers, 703 F.3d at 661 (quoting Iqbal, 556 U.S. at 676).
Plaintiffs are unable to meet this standard. First, Plaintiffs’ complaint itself contains no plausible claims against the defendants for alleged violations of plaintiffs’ constitutional rights. Indeed, it contains no specific claims against the individual defendants at all. Nearly all of the references to the individual parties are contained in the “Parties, Jurisdiction, and Venue” section of the complaint, which merely identifies the defendants as supervisors and alleges, in conclusory fashion, that they were “aware of . . . policies and practices regarding blind inmates,” and “the requirements of federal law . . . .” Am. Compl. ¶¶ 23, 24, 25. Nor are there factual allegations in the numbered counts themselves indicating how any defendant personally violated any plaintiff’s constitutional rights.
Plaintiffs’ failure to set forth plausible constitutional violations allegedly committed by the defendants extends to the summary judgment record. Absent from the record is any evidence of any conduct of defendants that violated the constitutional rights of any
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defendant to access to courts or to be free from substantial risk of harm. Thus, as demonstrated more fully below, summary judgment should be granted to the defendants.6
II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ § 1983 ACCESS TO COURTS CLAIM AGAINST SECRETARY MOYER, COMMISSIONER CORCORAN, AND WARDEN MILLER.
Plaintiffs allege that defendants failed to “make reasonable accommodations and/or provide auxiliary aids and services to make the grievance process, courts, and library accessible to Plaintiffs.” Am. Compl. ¶ 87. Defendants are entitled to summary judgment on this claim. First, plaintiffs’ claim fails as a matter of law, because it is premised on the erroneous belief that the Constitution requires individuals to be able to read, write, conduct legal research, and file documents “privately and independently,” or that there is a constitutional right to a law library or a “grievance process.” See Am. Compl. ¶ 32. Second, the undisputed evidence demonstrates that defendants have not denied plaintiffs their right of access to courts. Third, plaintiffs cannot demonstrate that any purported constitutional violations resulted in any actual injury or that any of the defendants, as senior ranking officials in the Department, had any personal involvement in any purported constitutional deprivations.
6 To the extent plaintiffs’ § 1983 claims are brought against Secretary Moyer, Commissioner Corcoran, and Warden Miller in their official capacities, they fail for the additional reason that they are barred by the Eleventh Amendment to the United States Constitution. It is well established that the Eleventh Amendment bars suit against a state, a state agency, and state officials sued in their official capacities in federal court, absent a valid waiver. U.S. Const., amend. XI; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984).
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A. Plaintiffs Overstate their Denial of Access to Courts Claim. The right of access to the courts “requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 825 (1977) (emphasis added). It does not “guarantee inmates the wherewithal to transform themselves into litigating engines,” Lewis v. Casey, 518 U.S. 343, 355 (1996), but instead, guarantees them a “reasonably adequate opportunity,” Bounds, 430 U.S. at 828, id. at 828, to challenge their sentence or conditions of confinement. See Lewis, 518 U.S. at 354-55. As the Fourth Circuit has noted, there is no “right of access to a law library;” rather “there is a right of access to the courts.” Strickler v. Waters, 989 F.2d 1375, 1385 (4th Cir. 1993). Thus, “[i]t does not inexorably follow from the fact that an institution’s library is inadequate or that access to that library is restricted . . . that the prisoner was denied access to the courts.” See Wells v. Thaler, 460 F. App’x 303, 308 (5th Cir. 2012) (noting, in affirmance of grant of summary judgment to prison officials in blind inmate’s access to courts claim, that while “[i]t has long been recognized that prisoners enjoy the constitutional right of access to the courts, . . .[t]he Supreme Court has not . . . established that prisoners have a freestanding right to a law library or legal assistance”) (citing Lewis 518 U.S. at 350–51). See also Mims v. Williams, No. 1:08CV521-01-MU, 2009 WL 454598, at *1 (W.D.N.C. Feb. 23, 2009) (rejecting access-to-courts claim based on lack of prison law library because prison had a legal-services program that “provides inmates with the constitutionally mandated level of assistance necessary to protect their meaningful access to the court”). The right of access to the courts requires that inmates have the
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“tools” necessary to attack their sentences and challenge the conditions of their confinement. Lewis, 518 U.S. at 355. So long as they have sufficient assistance to ensure their claims are heard in court, it is simply irrelevant whether they are able to read, write, and research “privately” and “independently.” Am. Compl. ¶ 33.
Moreover, because the right at issue is one of “access to the courts,” Strickler, 989 F.2d at 1385, plaintiffs’ allegation that they cannot access the DOC’s administrative grievance process (the Administrative Remedy Procedure, or “ARP”) fails to state a claim for relief. There is no “fundamental” right to an institutional inmate complaint resolution process, see Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994), and alleged defects in an inmate grievance system do not violate the Constitution. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1995) (prisoner’s allegation that jail grievance procedures were inadequate to redress his grievances did not state claim for violation of due process). See also Booker v. South Carolina Dep’t of Corr., 855 F.3d 533, 541 (4th Cir. 2017) (“[I]inmates have no constitutional entitlement or due process interest in access to a grievance procedure.”). As the court explained in Lewis, the right of access to the courts extends only to lawsuits challenging a conviction, sentence, or conditions of confinement, and “[i]mpairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” Lewis, 518 U.S. at 355. Thus, plaintiffs’ attempt to base their access to courts claim on their alleged lack of ability to access the DOC’s grievance process is simply misplaced and fails as a matter of law.
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In addition to demonstrating that he has been deprived of assistance in “preparation and filing of meaningful legal papers,” Bounds, 430 U.S. at 825, a plaintiff must satisfy the second component of a denial of access to courts claim: “actual injury.” See Lewis, 518 U.S. at 352-54. Actual injury requires that the inmate demonstrate that his “non-frivolous” post-conviction or civil rights legal claim has been “frustrated” or “impeded.” Id. at 353– 54. Because there is no “abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense.” Id at 351. Rather, “the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a [non-frivolous] legal claim[;] for example, that a complaint [the prisoner] prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, [the prisoner] could not have known,” or that “he was unable to file even a complaint.” Lewis, 518 U.S. at 351. See also Strickler, 989 F.2d at 1385 (“‘A demonstration of inability to present a legal claim is an essential ingredient . . . because the prisoner must be able to show that the rules interfered with his entitlement (access to the courts) rather than with a mere instrument for vindicating an entitlement (access to books).” (quoting DeMallory v. Cullen, 855 F.2d 442, 452 (7th Cir.1988) (Easterbrook, J., dissenting))).
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B. The Undisputed Record Evidence Demonstrates that Defendants Are Entitled to Summary Judgment. 1. Plaintiffs Were Not Deprived of Access to Courts.
When viewed under the proper constitutional standard, the undisputed evidence makes clear that no access to courts violation has occurred in this case. First, in this case alone, plaintiffs successfully filed nine pro se complaints to initiate this action in March 2016, and succeeded in obtaining appointed counsel, ECF No. 2, and then other counsel, who have represented the plaintiffs since 2016. See ECF Nos. 4, 11 and 12; n. 1, supra. In addition, they are provided access to the courts through “the array of services provided by the Office of the Public Defender and the Prisoner Assistance Program of the Legal Aid Bureau,” see Savko v. Rollins, 749 F. Supp. 1403, 1408 (D. Md. 1990), which has been succeeded by PRISM, and through privately retained counsel. See Pevia v. Commissioner of Corr., No. CV ELH-17-0273, 2018 WL 4052244, at *12 n.10 (D. Md. Aug. 24, 2018) (“This [C]ourt has found that the combination of services provided to [DOC] prisoners through private contract with outside agencies such as . . . . PRISM, the Office of the Public Defender, and LASI, is sufficient to ensure their right of access to the courts.”). Indeed, as noted, two attorneys for PRISM are representing plaintiffs in this very lawsuit. See Civil Docket for Case 1:16-cv-00 945-RDB at 1.
It is also undisputed that plaintiffs have all successfully secured legal representation not only in this case, but in numerous other cases, including their underlying criminal matters, and are able to meet and speak with their attorneys as needed. See, e.g., Snead Dep. 82:7 – 83:2 (stating that there is a phone on the tier that plaintiffs can use to call their
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attorneys); see also Hopkins Dep. 166:14 – 171:2; Brown Dep. 14:11 – 15:9; Polley Dep. 11:22 – 12:5; Wilson Dep. 112:5-10. Critically, plaintiffs have never claimed that their numerous attorneys have failed to access the courts or represent their interests. Instead, they attempt to shift the focus away from their professional legal representation, and, as noted, focus on their purported inability to litigate “independently.” See ECF 23 (amended complaint, ¶ 33) (alleging that “Plaintiffs have no way to initiate and complete the grievance or court processes privately and independently”). But as demonstrated above, the right of access to courts plainly does not extend so far, and plaintiffs therefore cannot establish that their rights have been violated in this case.
Moreover, although not properly encompassed by their access to courts claim, plaintiffs cannot show that they have been denied access to the administrative grievance process. On the contrary, plaintiffs acknowledge they have filed ARP complaints and grievances with the Inmate Grievance Office. See Wilson Dep. 28, 39; Snead Dep. 20, 36, 79; Hammond Dep. 72; Delano Dep. 45; Brown Dep. 27; Polley Dep. 67. Any claim that they have been denied access to the courts or grievance process is unsupported and simply contrary to the evidence.
Plaintiffs’ testimony that some of them have had to rely on other inmates for assistance in filing ARPs or grievances provides no support for their access to courts claim. Even if the constitutional right extended to filing administrative complaints and grievances, which it does not, the fact that plaintiffs received assistance from other inmates is not evidence of a constitutional denial. As the Supreme Court has explained, all that is guaranteed is the “capability of bringing contemplated challenges . . . before the court,”
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Lewis, 518 U.S. at 356, not “the capability of turning pages in a law library,” id., and plaintiffs’ own testimony, as well as the undisputed documentary evidence, demonstrates that plaintiffs have been able to bring such challenges.
In any event, the prison practice of relying on other inmates to prepare papers and pleadings is commonplace, and the fact that this ordinary aspect of prison life occurred to plaintiffs shows no more of a constitutional violation than it does when other inmates rely on fellow prisoners to assist them. See Jong Pil Park v. Diaz, No. SACV 12-1835-FMO MAN, 2013 WL 4008762, at *7 (C.D. Cal. Aug. 5, 2013) (noting that “[i]t is far from unusual for prisoners to seek and utilize the assistance of other prisoners, especially those with greater legal experience or knowledge, when pursuing post-conviction relief” and rejecting prisoner’s access to courts claim and request for equitable tolling to file belated habeas corpus petition); Henderson v. Johnson, 1 F.Supp.2d 650, 655 (N.D.Tex.1998) (“[i]t is common for prisoners to count on other inmates for assistance in . . . seeking habeas relief”); Fonseca v. McNeil, 2009 WL 196095, *5 (D.Fla.2009) (“The fact that [petitioner] might need to rely on inmate law clerks and others because he is uneducated in the law, as he contends, is not uncommon. Prisoners often count on other prisoners for assistance in filing lawsuits or seeking habeas relief.”). In this case, because the record evidence demonstrates that plaintiffs were able to file administrative and other complaints, either by themselves or with the assistance of others, there is no constitutional violation, and defendants are entitled to summary judgment.
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2. Plaintiffs Cannot Demonstrate Any Actual Injury. Defendants are also entitled to summary judgment because plaintiffs cannot demonstrate any injury as a result of the purported denial of access to the courts. A showing of “actual injury” is a “constitutional prerequisite” to establishing this claim, Lewis, 518 U.S. at 351, and such an injury occurs only when a prisoner “shows that an actionable claim . . . which [the prisoner] desired to bring has been lost or rejected, or that the presentation of such a claim is currently being prevented, because [the] capability of filing suit has not been provided.” Id. at 343. See Christopher v. Harbury, 536 U.S. 403, 415 (2002) (“Our cases rest on the recognition that the right [of access to courts] is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court.”). And, given the limited scope of cases to which the right applies, “[u]ltimately, a prisoner wishing to establish an unconstitutional burden on his right of access to the courts must show ‘actual injury’ to ‘the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.’” O’Dell v. Netherland, 112 F.3d 773, 776 (4th Cir. 1997) (emphasis added) (quoting Lewis, 518 U.S. at 355). Plaintiffs have failed to adduce any evidence that a non-frivolous lawsuit challenging a sentence or condition or confinement was dismissed as a result of their alleged denied access, or that they were prevented from such a suit. Indeed, the record evidence conclusively demonstrates both lack of denial of access and lack of injury. See Exhibit 17 (interrogatory to plaintiff Robert Wilson asking plaintiff to “[i]dentify each occasion on which you claim that because of your blindness you were denied access to court,” to which plaintiff responds, “Mr. Wilson makes no such allegation at this time.”);
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See Exhibit 18 (same interrogatory to plaintiff Sedric Holley to which he summarily responds that “Mr. Holley was denied equal effective access to the courts because he was provided no accommodations allowing him to perform his own legal research at the RCI library,” but that “[h]e was able to retain an attorney”); See Exhibit 19 (same interrogatory to plaintiff Hammond to which he responds that he “was forced to pay another inmate to perform legal work in support of his motions for post-conviction relief,” but that he “prevailed in his request for relief and was granted a new trial in October or November 2016 in Dorchester County Circuit Court”) (emphasis added); See Exhibit 20 (same interrogatory to plaintiff Tyrell Polley to which he responds that he “was denied the opportunity to use an accessible computer at the library and was thus effectively denied the opportunity to conduct his own legal research and complete forms independently,” but that he “was not otherwise denied access to court”).
Likewise, the access to courts claims of the other plaintiffs also fail as a matter of law because they do not comply with Supreme Court’s admonition that “the predicate claim [must] be described well enough to apply the ‘nonfrivolous’ test and to show the ‘arguable’ nature of the underlying claim is more than hope.” Christopher, 536 at 416 (footnote omitted). As this Court has cautioned, “more than a conclusory allegation . . . is required to show actual injury,” Young-Bey v. Kennedy, No. CIV.A. JFM-12-0162, 2013 WL 1976004, at *4 (D. Md. May 10, 2013), and a claim will be rejected where “the underlying cause of action and its lost remedy” are not “addressed by allegations in the complaint sufficient to give fair notice to a defendant.” Christopher, 536 U.S. at 416.
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Plaintiffs’ complaint itself provides no description whatsoever of any underlying causes of action that were allegedly frustrated or impeded by plaintiffs’ purported lack of access to courts. Instead, they simply allege that they have had “grievances and lawsuits,” which they do not identify, “dismissed due to mistakes by sighted inmates.” Am. Compl. ¶ 41. To the extent that plaintiffs James, Snead, Delano, Brown, and Hopkins have provided any information in discovery regarding the underlying causes of action on which they ostensibly base their claims, it is similarly vague, conclusory and inadequate. Plaintiff Johnny James alleges that “in or around 2014, he was unable to work independently on his effort to gain court approval for his admission to the 8-505 drug program,” see Exhibit 21, but fails to describe this “effort” in any meaningful way, let alone provide facts sufficient for a jury to conclude that he had a meritorious claim that was dismissed because of inadequacy in legal services or a law library. 7 In any event, Mr. James acknowledges that he received assistance from “other inmates . . . in preparing his motion to the court.” Id. Mr. James’s lack of satisfaction with the quality of that assistance is of no moment, because the Constitution does not require the State to “enable the prisoner to discover grievances, and to litigate effectively once in court.” Lewis, 518 U.S. at 354.
7 Although not explained by plaintiffs, the “8-505 drug program” presumably refers to the procedure set forth in § 8-505 of the Health General Article of the Annotated Code of Maryland, which permits, but does not require, a court to “order the [Maryland Department of Health] to evaluate a defendant to determine whether, by reason of drug or alcohol abuse, the defendant is in need of and may benefit from treatment.” See Md. Code Ann, Health Gen. § 8-505(a)(1)(i) (LexisNexis 2013). See also Health Gen. § 8-507 (permitting court to commit a defendant to the Maryland Department of Health for substance abuse treatment).
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Mr. James’s claim that he was unable to obtain a divorce, resulting in his “remain[ing] legally married against his wishes,” id., also fails as a matter of law. As noted, the right of access to courts is limited to challenges to criminal sentences and conditions of confinement, see Lewis, 518 U.S. 355, and thus has no application to domestic claims. See Wagner v. Gober, No. 4:15-CV-1789 CAS, 2017 WL 2984841, at *4 (E.D. Mo. July 13, 2017) (“Numerous cases have held that the constitutional right of access to the courts does not extend to litigation involving divorce cases.”) (citing cases); see also Rice v. Turner, No. 4:17CV2684, 2018 WL 3067767, at *6 (N.D. Ohio June 21, 2018) (“Plaintiff is not guaranteed access to the courts for a domestic relations case.”). In any event, Mr. James acknowledges that he received assistance from other inmates, and again, fails to demonstrate both that he had a meritorious claim, and that his civil action was prejudiced by purported inadequacies in the legal services available to him. In particular, while he vaguely asserts that he “missed a filing deadline,” and that a fee waiver request was not properly filled out, id., he does not assert that his case was dismissed or show that presentation of his case was impeded because of any defendant's actions.
Mr. Hopkins claims that he “was denied access to the courts because of his blindness in or around late 2016 or early 2017, when he could not find any inmates whom he trusted to assist him to file a motion with the Maryland district court in Towson to have his sentence reduced.” See Exhibit 22. He acknowledges, however, that he received assistance from an attorney in the Collateral Review Division of the Maryland Public Defender’s Office. That the attorney did not ultimately file the motion on his behalf, as Mr. Hopkins alleges, does not mean that he was deprived of legal assistance; nor does it constitute any evidence of a
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deprivation of his right of access to courts as a result of any action of the defendants. Moreover, while vaguely asserting that the court had committed “a sentencing error” in his underlying criminal case, he does not describe this error in any way and thus has failed to demonstrate that he had a meritorious legal claim. See James v. Cotter, No. CV 9:14-4518TLW-BM, 2017 WL 7054157, at *6 (D.S.C. Sept. 19, 2017), report and recommendation adopted, No. 9:14-CV-4518-TLW, 2018 WL 573157 (D.S.C. Jan. 26, 2018) (rejecting access to courts claim where prisoner “provided no docketing information relating to his criminal convictions, affidavits or deposition testimony from any qualified legal experts or sources indicating he had a non-frivolous legal claim concerning his conviction that was prejudiced by the alleged loss of this material, or any other evidence to support his otherwise general and conclusory claim”).
Mr. Delano’s allegations also reveal the absence of any valid access to courts claim. He testified that “in or around 2007 and 2008, [he] filed motions with the Circuit Court for Caroline County to modify or reduce his sentence” but “had a great deal of difficulty understanding the process and was not able to do any legal research to help him craft his claims.” See Exhibit 23. First, these allegations are untimely. For claims under 42 U.S.C. § 1983, federal courts borrow the State’s general personal injury limitations period, which in Maryland is three years. Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 187 (4th Cir. 1999) (citing Md. Code Ann., Cts. & Jud. Proc. § 5-101). A claim under § 1983 “accrues when the plaintiff ‘knows or has reason to know of the injury which is the basis of the action,’” A Society Without a Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (citation omitted). Although Mr. Delano has not provided the court’s disposition of
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the motion for modification, a review of the docket entries of the Circuit Court for Caroline County indicates that the court denied Mr. Delano’s request in December 2007,8 and thus to the extent Mr. Delano had any claim, it accrued on that date. Because his complaint was not filed until March 2013, more than five years later, it is barred.
Mr. Delano has no plausible access to courts claim for the additional reason that he did file his cause of action, and like the other plaintiffs, has produced no facts demonstrating that he was actually harmed or prejudiced with respect to the litigation at issue. Nor has he demonstrated that his modification request was “arguable” or based on “more than hope.” Christopher, 536 U.S. at 415. Similarly, Mr. Delano acknowledges that he received assistance from the Office of the Public Defender in 2014 with regard to a petition for post-conviction relief, and though he alleges he could not fill out the paperwork provided by that office because of his blindness and lack of auxiliary aids, he provides no description whatsoever of the post-conviction claims he purportedly wished to raise, and has thus failed to demonstrate that he had a meritorious case in that instance. See Owuor v. Welch, No. 2:09-CV-1098-CSC, 2012 WL 4513618, at *7 (M.D. Ala. Oct. 1, 2012) (rejecting access to courts claim where prisoner argued that jail’s failure to have a law library or law books “impeded his ability to prosecute two separate civil actions,” but prisoner failed to “specifically identity either action” and “concede[d] that he was able to file one federal tort claim which was subsequently denied”).
8 See State of Maryland v. Wilbert Mark Delano, Cir. Ct. for Caroline Co., No. 05-K-07006927http://casesearch.courts.state.md.us/casesearch/inquiryDetail.jis?caseId=05K0700 6927&loc=50&detailLoc=ODYCRIM (accessed March 18, 2019).
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The record evidence also completely refutes Mr. Delano’s bald allegation that he was denied access to the legal process during hearings before the Maryland Parole Commission in 2018 and subsequent judicial review. At a hearing before Parole Commissioner Cluster on February 22, 2018, Mr. Delano admitted that he had violated the terms of his mandatory supervision release and his release was revoked. See Exhibit 24. A transcript of the hearing confirms that Mr. Delano was able to participate in the proceeding and there is no indication that his ability to do so was hindered in any way. Id. Subsequently, Mr. Delano filed a petition for judicial review challenging his revocation in the Circuit Court for Howard County, as well as a memorandum of law, and appeared before the court by video hearing on September 4, 2018. See Exhibit 25. A transcript of the hearing before the circuit court confirms that Mr. Delano was able to make his arguments before the court, and that both the Court and the assistant attorney general representing the Parole Commission made every effort to accommodate him and to ensure that he was able to properly present his case. See Exhibit 26. The record evidence thus demonstrates that Mr. Delano did not suffer any constitutional violation whatsoever.
Mr. Snead claims that in 2002, he “missed a deadline for filing a federal habeas petition,” because he was allegedly denied “auxiliary aids and services that would allow him to conduct his own legal research and file his own petition[s] . . . independently,” but that claim is clearly time-barred, as any claim Mr. Snead had with regard to the matter accrued 11 years before suit was filed in this case. See Exhibit 27. Moreover, Mr. Snead never describes the petition that he wished to file, and thus has completely failed to demonstrate that he had an “arguable” habeas claim. Lewis, 518 U.S. 353. The same result
28

applies to Mr. Snead’s claim that in 2002 he missed a deadline to file a post-conviction petition that he does not describe or to seek “other relief” that he fails to specify. And similarly bereft of any supporting factual support is Mr. Snead’s claim that in 2016, he was “unable to pursue [a] lawsuit” against unidentified defendants “regarding medical malpractice allegations that led to the loss of sight in one eye.” As is the case with the other plaintiffs, Mr. Snead’s bare and conclusory allegations fall far short of raising any triable issue that he was deprived of the opportunity to pursue an “actionable claim.” Lewis, 518 U.S. at 356.
Mr. Brown’s numerous allegations of a denial of access to courts also lack merit. Mr. Brown’s claim that in 2007, after arriving at RCI, he missed a deadline for “fil[ing] charges against officers in the Anne Arundel County Detention Center who had assaulted him, resulting in his blindness,” Exhibit 28, is time barred, having accrued approximately nine years prior to the filing of this lawsuit in 2016. Mr. Brown also fails to identify the “information he needed to file charges” to which he was purportedly denied access, and does not describe his putative cause of action or claims against the county or its personnel with sufficient particularity so as to demonstrate that it was actionable. He also fails to explain why he had only a “short period of time” after arriving at RCI “in which he could file charges,” and has thus failed to sufficiently provide a “demonstration of inability to present a legal claim.” Strickler, 989 F.2d at 1385.9 Time barred as well is Mr. Brown’s
9 In fact, a review of this Court’s docket indicates that on August 13, 2009, Mr. Brown filed a pro se civil suit against Anne Arundel County and several county correctional officers arising from the alleged use of excessive force. See Brown v. Matolka, Civ. No. 8:09-cv-02127-PJM, ECF No. 1 (complaint). On November 18, 2009, this Court granted
29

vague claim that “[i]n or around 2008, [he] missed a filing deadline for his appeal, because he was unable to read relevant legal documents independently.” Id.
Also time barred, and lacking in any degree of specificity that would permit a reasonable juror to determine that they were actionable, are Mr. Brown’s allegations that “[i]n or around 2009,” he was unable to obtain assistance from the “Collateral Review Division of the Maryland Court of Appeals” [sic]; that “[i]n or around 2011, [he] had to find an inmate to assist him to write to his lawyer . . . concerning an outstanding warrant he had discovered”; and that “[i]n or around 2010,” he had to seek help from other inmates to “file[] a motion with the Anne Arundel Circuit Court seeking help after he was attacked,” which was denied. These vague and conclusory allegations fail to provide any evidence that an alleged denial of access to legal assistance impacted a meritorious legal claim. Accordingly, defendants are entitled to summary judgment.
C. Plaintiffs Have Failed to Establish the Personal Involvement or Supervisory Liability of the Defendants.
Plaintiffs’ denial of access to the courts claims fail for the additional reason that they cannot establish any personal involvement or liability on behalf of the individual named defendants. First, the vast majority of plaintiffs’ access to courts claims concern events that occurred long before the defendants assumed even their positions. As noted, Stephen Moyer became Secretary in January 2015; Dayena Corcoran was Commissioner of
Mr. Brown’s motion for appointment of counsel, see id. at ECF no. 3, and on February 8, 2013, the parties stipulated to the dismissal of the action with prejudice.
30

Correction from 2016 until September 2018; and Richard Miller was the Warden at RCI
from April 2015 until November 2017. Any claims arising before the defendants’ tenure
in their respective offices are barred because defendants lacked the capacity to take any
action that would purportedly have violated any of the plaintiffs’ constitutional rights.10
Moreover, absent from the record is any evidence that any of the defendants took
any action to prevent or restrict plaintiffs from accessing the courts. As shown above,
plaintiffs were fully and competently represented by counsel in numerous cases, see
Hopkins Dep. 166:14 – 171:2; Brown Dep. 14:11 – 15:9; Polley Dep. 11:22 – 12:5; Wilson
Dep. 112:5-10, and had the ability to communicate with their counsel via telephone as
needed. See Snead Dep. 82:7 – 83:2. Furthermore, plaintiffs cannot show that any of the
defendants were aware that their subordinates were engaged in widespread abuses with an
unreasonable risk of denying plaintiffs access to the courts, or that the defendants were
deliberately indifferent to, or tacitly authorized, such conduct. Shaw, 13 F.3d at 799. Nor
can they show the requisite causative link. Id. Indeed, they have adduced no evidence
10 Secretary Moyer testified that prior to his appointment as Secretary, he was employed as Director of Security for the University of Maryland Medical Center from 2008 to April 2013, when he was appointed Deputy Chief of Police in Sarasota, Florida, a position he held until his appointment as Secretary in January of 2015. Moyer Dep. 17-18. Former Commissioner Corcoran was employed as warden at the Maryland Correctional Institution - Jessup from 2009 to 2014, and was an assistant commissioner of correction from 2014 until her appointment as commissioner in 2016. Corcoran Dep. 42, 46. Mr. Miller was a correctional officer at RCI until June 2007, when he was appointed to the position of chief of security at the institution. In April 2010 he was promoted to assistant warden at the Maryland Correctional Training Center, a position he held until approximately December 2013, when he was appointed to the position of assistant warden at North Branch Correctional Institution (“North Branch”). He was promoted to acting warden of North Branch in December 2014, and became warden of RCI in April 2015, a position he held until his retirement from state service on November 1, 2017. Miller Dep. 23-25.
31

whatsoever to show what conduct even posed a pervasive and unreasonable risk of denying plaintiffs’ access to the courts, let alone that the defendants were aware of such conduct and failed to act in response. To the contrary, the undisputed evidence makes clear that defendants in fact had every reason to believe plaintiffs were being provided with their constitutional right of access to the courts, most conspicuously by the existence of this very lawsuit. That plaintiffs were challenging their convictions and/or sentences, as well as filing ARPs and grievances relating to the conditions of their confinement, makes ever clearer that defendants did not know, nor could they have known, that plaintiffs were purportedly being pervasively denied access to the courts. See Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009) (“Because he is currently exercising his right to petition the government for redress of grievances through this lawsuit, he has not been harmed.”); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (holding that the plaintiff’s “invocation of the judicial process indicates that the prison has not infringed his First Amendment right to petition the government for a redress of grievances.”). Defendants are therefore entitled to summary judgment on plaintiffs’ § 1983 claim for denial of their right to access the courts.
III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ § 1983 DELIBERATE INDIFFERENCE FAILURE TO PROTECT CLAIM AGAINST SECRETARY MOYER, COMMISSIONER CORCORAN, AND WARDEN MILLER.
This Court should grant summary judgment to defendants Moyer, Corcoran, and Miller on plaintiffs’ claim of deliberate indifference to their safety because plaintiffs cannot establish the requisite elements of this claim. Plaintiffs argue that their Eighth Amendment
32

protection against cruel and unusual punishment was violated by defendants’ purported failure to provide them with auxiliary aids and services to allow them to independently navigate the prison facility, independently read and write, and have single cells. Am. Compl. ¶ 92. They claim that the absence of these auxiliary aids and services caused them to suffer “physical and sexual abuse, extortion, disruption of their relationships with their loved ones, and severe anxiety and emotional distress.” Am. Compl. ¶ 93. The undisputed record evidence demonstrates that they are wrong.
“[N]ot every injury suffered by a prisoner at the hands of another ‘translates into constitutional liability for prison officials responsible for the victim’s safety.’” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). To succeed on an Eighth Amendment failure-to-protect claim, a prisoner must prove that the defendant (i) had knowledge of a substantial risk of serious harm and (ii) acted with deliberate indifference, a criminal recklessness standard, to the prisoner’s safety. Farmer, 511 U.S. at 834.
Thus, a two-part inquiry that includes both an objective and a subjective component must be satisfied before liability can be established. See Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016). The objective inquiry asks whether the plaintiff “‘establish[ed] a serious deprivation of his rights in the form of a serious or significant physical or emotional injury,’ or a substantial risk thereof.” Id. (quoting Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014)). The subjective component requires a showing “that the prison official had a ‘sufficiently culpable state of mind,’ which . . . consists of ‘deliberate indifference to inmate health or safety.’” Raynor, 817 F.3d at 127 (quoting Farmer, 511 U.S. at 834). Under the
33

subjective test, “actual knowledge of facts from which a reasonable person might have inferred the existence of the substantial and unique risk to [the prisoner] . . . is not enough to establish a violation of the Eighth Amendment,” because “the defendant official . . . must actually have drawn the inference.” Rich v. Bruce, 129 F.3d 336, 340 (4th Cir. 1997) (emphasis added). Negligence alone does not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. See Ruefly v. Landon, 825 F.2d 792, 793 (4th Cir. 1987); Whitley v. Albers, 475 U.S. 312, 319 (1986) (“It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the prohibited conduct.”).
A. Plaintiffs Cannot Establish that They Were Exposed to a Substantial Risk of Serious Harm.
Plaintiffs cannot establish the objective element of their claim because they cannot demonstrate that they were subjected to conditions which caused them serious harm or exposed them to a substantial risk of serious harm. “Only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim regarding conditions of confinement.” De’Lonta v. Angelone, 330 F.3d 630, 633–34 (4th Cir. 2003). To prove an extreme deprivation, there must be a significant physical or emotional injury, or “a substantial risk of such serious harm resulting from the prisoner’s exposure to the challenged conditions.” Id. Plaintiffs claim their double-cell housing assignment, and having to rely upon assistance from other inmates to read, write, and navigate the facility exposed them to such injuries and risks (Am. Compl. ¶¶ 92-3), but they cannot demonstrate this or even raise a genuine dispute of fact about it.
34

First, it is beyond dispute that double-celling is an accepted practice and does not

violate the Eighth Amendment. McCann v. Shearin, 13-Civ-3693-RWT, 2015 WL

3753764, at *8 (D. Md. June 11, 2015) (citing Rhodes v. Chapman, 452 U.S. 337, 343-44

(1981)) (“[T]he Supreme Court has squarely addressed the issue of whether double-celling

of prisoners constitutes cruel and unusual punishment, and has held that it does not.”).

From a prison administration perspective, it can be safer for inmates to be double-celled

since cellmates can obtain assistance for each other in the event of an emergency. See

Moyer Dep. 70:2 – 71:4. Moreover, plaintiffs Brown, Delano, Holley, and James were

housed only in single cells at RCI, and plaintiffs Hopkins, Polley, Snead, and Wilson were

housed at times in single cells and at times in double cells. Thus, it is plainly disingenuous

for plaintiffs as a group to base this claim upon their purported double-cell housing.

Second, courts routinely uphold prison practices which require inmates to rely upon

each other for such basic functions as navigating, reading, and writing. See, e.g. Wells v.

Thaler, 460 F. App’x 303, 312-13 (5th Cir. 2012) (upholding practice of inmate assisting

another blind inmate with reading and court filings); Mason v. Correctional Med. Servs.,

Inc., 559 F.3d 880, 887 (8th Cir. 2009) (upholding practice of inmate assigned to assist

blind inmates with daily tasks including filing grievances). Thus, plaintiffs cannot base

their claim upon a practice that is constitutionally permissible.

And third, the undisputed record evidence makes clear that plaintiffs did not suffer

a serious injury, nor were they exposed to a substantial risk of injury, as a result of their

purported double-celling or reliance upon other inmates for assistance with navigating,

reading, and writing. Although Mr.

claims to have been assaulted and sexually

35

assaulted by his inmate walkers (

Answers to Defendants’ Supplemental

Interrogatories, No. 22, dated December 27, 2018), he in fact was not. (

Dep. 51:11-

54:14). To the contrary, his only complaints about the walkers were that they were involved

with drugs or alcohol, but not that they caused him any harm. (

Dep. 42:5 – 44:6).

Mr.

claims he was assaulted on a number of occasions, and was almost raped

on one occasion, but there is no evidence that these incidents were the result of his reliance

upon other inmates for assistance or because of his visual impairment. To be clear, he did

not generally rely upon other inmates for reading (

Dep. 18:8-10, 51:18 – 52:10),

and had no real problems with his assigned escorts/walkers. (

Dep. 22:14 – 25:2).

He believes the inmates who assaulted him took advantage of his visual impairment, but it

is undisputed that he was not relying upon those inmates for assistance, and when he

reported the assault, he was placed in protective custody. (

Dep. 29:17 – 30:14,

39:16 -40:12). Additionally, he claims he was sexually assaulted, but he admits that he

was not raped or injured, he was sleeping when the incident occurred, and was

subsequently transferred for his safety. (

Dep. 56:3-7, 56:17 – 57:2).

Mr. Hammond claims to have been assaulted by a cellmate, but that he only suffered

bruising, see Hammond Dep. 16:8-12, 17:21 – 19:10, 21:12-17, 67:17 – 68:10, which is

not sufficiently serious to satisfy the objective element. Landy v. Isenberg, 14-CV-501

PWG, 2015 WL 5289027, at *4 (D. Md. Sept. 9, 2015) (“The contemporaneous findings

of minor bruising and a knee scrape were not objectively serious conditions.”); Jefferson

v. Wooten, 10-CV-2927 JFM, 2011 WL 3511036, at *4 (D. Md. Aug. 9, 2011), aff’d, 463 F.

App’x 187 (4th Cir. 2012) (“An abrasion measuring less than one millimeter, bruising and

36

Based upon the foregoing, the undisputed record evidence simply fails to demonstrate that plaintiffs suffered any serious injuries or were exposed to a substantial risk of serious injury as a result of their double-celling or reliance upon other inmates to navigate, read, and write. As a result, defendants are entitled to summary judgment.
B. Plaintiffs Cannot Establish that Defendants Were Deliberately Indifferent to a Substantial Risk of Serious Harm.
Plaintiffs’ claims fail for the additional reason that they cannot meet the subjective component of the Eighth Amendment test, which requires not only “[a]ctual knowledge or awareness on the part of” the defendant to the substantial and excessive risk of harm to the prisoner, Brice v. Virginia Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995), but also a showing that the official acted with “deliberate indifference.” Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). As noted previously, the individual defendants are barely mentioned in the amended complaint, and the complaint itself is thus devoid of any factual allegations demonstrating that a defendant was aware of a serious risk of harm to any plaintiff.
The same infirmity in plaintiffs’ case is present in the summary judgment record. To demonstrate deliberate indifference, plaintiffs must show that defendants “subjectively recognized” both that a “substantial risk of harm” existed to a particular prisoner and that his or her actions were “inappropriate in light of that risk.’” Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (citing Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997)). Plaintiffs cannot do so. As noted, Secretary Moyer, the head of a principal unit of Maryland state government maintaining custody of nearly 20,000 inmates confined in 23 prisons and a jail, as well as supervising approximately 30,000 offenders in the community, see Moyer
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Depo. at 21-22, never had any communications or interactions with the plaintiffs and was not involved in their housing or cell assignments, and there is thus no evidence that Secretary Moyer was aware of any risk of harm to a plaintiff, let alone that he was deliberately indifferent to it. Plaintiffs’ discovery responses contain no evidence to the contrary. Plaintiffs have not even alleged any specific facts, let alone produced them, indicating that Secretary had any actual knowledge that plaintiffs were purportedly in danger of a risk of serious harm. Instead, plaintiffs’ claims rely on generalities, conclusory claims of wrongdoing, and regurgitations of the allegations of the amended complaint, which, as noted, are themselves cursory and inadequate. For example, in response to defendants’ interrogatory seeking facts on which plaintiffs rely for their claim that Secretary Moyer should have foreseen harm to plaintiffs and taken steps to prevent it, plaintiffs responded that Secretary Moyer “is an individual knowledgeable of [the Department’s] policies and practices regarding inmates, including those regarding blind inmates, and the requirements of federal law, and should therefore have foreseen the harm suffered by” plaintiffs. See Exhibit 18.
Also absent from the record is any evidence that Commissioner Corcoran, who was responsible for overseeing the wardens of all 23 facilities in the DOC and thus had no involvement in their day-to-day management or the housing assignments of particular inmates within the facilities, was aware that any plaintiff was at risk from harm. Additionally, although all of the plaintiffs were able to send correspondence, prepare pleadings and grievances, and file ARP complaints, none of the plaintiffs have ever claimed to have communicated with Secretary Moyer or Commissioner Corcoran to express any
40

concerns or fears that they were at risk from harm from another inmate. Accordingly, defendants are entitled to summary judgment. 11
Also absent from the record is any evidence of deliberate indifference by Warden
Miller to a serious risk of harm to any plaintiff. Warden Miller testified that, as warden of
RCI from April 2015 to November 2017, he was “pretty accessible to -- to all the inmates,”
and that he “talk[ed] to hundreds of inmates a week.” Miller Dep. at 310. He was familiar
with or saw on a regular basis several of the plaintiffs, in particular Johnnie James, Sedric
Holley, Steven Brown, and Robert Wilson, Miller Dep. at 311, and while some of the
inmates made requests for auxiliary aids and raised issues regarding other institutional
matters, see id. at 94, 361, none complained to him that they were at risk of harm from
other inmates. Mr. Miller also testified that he was familiar with RCI’s “walker,” or blind
inmate escort program, a paid assignment in which sighted inmates assist visually impaired
inmates by escorting them within the institution. See Miller Dep. at 358. Warden Miller
testified that walkers were screened by case management prior to commencing the
assignment, and visible to staff as they performed their escort duties. Miller Dep. at 301.
He also testified that assisting visually impaired inmates in preparing correspondence and
11 As noted, Secretary Moyer had no communication with any of the plaintiffs, and the sole evidence in the record of any communication between Commissioner Corcoran and any of the plaintiffs, while not concerning any claim by a plaintiff of a purported risk of harm by a fellow inmate, demonstrates that the commissioner was responsive to their concerns. In 2016, in response to a letter from Congressman Elijah Cummings concerning plaintiff Wilson’s allegations that he had been mistreated by a correctional officer, Commissioner Corcoran informed Congressman Cummings that the Department’s Internal Investigations Division “would fully investigate Mr. Wilson’s allegations,” and that any necessary corrective action would be taken. See Exhibit 29. The IID conducted an investigation into Mr. Wilson’s allegations and did not sustain his claims. See Exhibit 30.
41

other written materials was part of the walker’s duties, id. at 226-227, but that visually impaired inmates could ask other inmates or staff for assistance if they preferred. Id. at 224, 227. During his tenure as warden, none of the plaintiffs ever raised any objections to him about their walker or the walker program, id. at 305, and the only complaint of which he was aware of any type regarding the program was that a walker stated he could not get along with the inmate whom he was assigned to escort, which resulted in the walker’s reassignment. Id. at 305. Thus, absent from Warden Miller’s testimony is any evidence of knowledge of a risk of harm to a plaintiff.
A review of Fourth Circuit cases in which prisoners were found to have adequately supported their allegations of deliberate indifference to a substantial risk of harm further demonstrates the inadequacy of plaintiffs’ claims. For example, in Odom v. S.C. Dept. of Corr., 349 F.3d 765, 771 (4th Cir. 2003), the prisoner provided “uncontradicted” evidence that the defendant correctional officers “ignored [his] requests for protection against an assault committed by fellow inmates,” that they “knew the inmates intended to kill or seriously injure him,” and that they “even watched as [the] inmates worked for at least forty-five minutes to break into an outdoor recreational cage in which [plaintiff] was being held, yet ignored [his] pleas for help.” And in Cox v. Quinn, 828 F.3d 227, 237 (4th Cir. 2016), the prisoner submitted numerous written complaints “that he was being threatened and robbed by [named inmates]” in his housing pod, and “repeatedly informed the [defendants] that he feared for his safety and wished either to be moved from the pod or to have the other inmates moved.”
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Absent from the record in this case is any comparable evidence that would indicate defendants were “‘aware of facts from which the inference could be drawn that a substantial risk of serious harm [to plaintiffs exist[ed],” and “in fact drew such an inference but disregarded it.” Odom, 349 F.3d at 770–71 (quoting Farmer, 511 U.S. at 837). Accordingly, this Court should grant summary judgment to defendants under Count II of the amended complaint. IV. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY FROM
PLAINTIFFS’ CONSTITUTIONAL CLAIMS. Defendants are entitled to qualified immunity from plaintiffs’ claims under the First, Eighth, and Fourteenth, amendments. Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Typically, “[d]etermining whether qualified immunity is appropriate is a two-step inquiry.” Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016) (citing Pearson, 555 U.S. at 232)). “First, a court must decide whether the facts that a plaintiff has shown make out a violation of a constitutional right.” Id. “Second, the court must consider whether the right at issue was ‘clearly established’ at the time of the alleged misconduct.” Id. Judges are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
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Ultimately, the lodestar for whether a right was clearly established is whether the law “gave the officials ‘fair warning’ that their conduct was unconstitutional.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 313 (4th Cir. 2006) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). The contours of the constitutional right “must be sufficiently clear that a reasonable official would understand what he is doing violates that right.” Hope, 536 U.S. at 753 (quotation omitted). Although “‘[c]learly established’ does not mean that ‘the very action in question has previously been held unlawful’ . . . it does require that, ‘in the light of pre-existing law the unlawfulness [of the official’s conduct] must be apparent.’” Owens v. Lott, 372 F.3d 267, 278 (4th Cir. 2004) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)) (brackets in original); see also Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (finding that “clearly established” does not “require a case directly on point . . . but existing precedent must have placed the statutory or constitutional question beyond debate.”).
Defendants are entitled to qualified immunity under both prongs of the qualified immunity standard. First, as shown above, plaintiffs have failed to demonstrate that any right of plaintiffs protected by the First, Eighth, or Fourteenth Amendment is implicated in this case. Plaintiffs have also failed to establish the existence of personal conduct by any defendant in alleged constitutional violations. Thus, the record “do[es] not make out a constitutional violation at all” against the defendants. Pearson, 555 U.S. at 236.
Even if plaintiffs had been able to establish actionable claims that the defendants violated a constitutional right, defendants would still be entitled to qualified immunity because “the right’s contours were [not] sufficiently definite that any reasonable official in
44

[the defendants’] shoes would have understood that [they were] violating it.” City & County of San Francisco, Cal. v. Sheehan, 135 S. Ct. 1765, 1774 (2015). As demonstrated above, plaintiffs’ First, Eighth, and Fourteenth Amendment claims are devoid of any “controlling authority,” al-Kidd, 563 U.S. at 742, that adopts plaintiffs’ expansive and extraordinary theories of a prisoner’s constitutional right to access the courts and to be free from unreasonable risk of harm. Nor do plaintiffs cite a “consensus of cases of persuasive authority” that has “placed the . . . constitutional question[s] beyond debate.” Id. at 741-2. Accordingly, defendants are entitled to qualified immunity. V. PLAINTIFFS’ ADA CLAIM IS BARRED BY THE ELEVENTH AMENDMENT.
Summary judgment should be granted to defendants under Count III of the amended complaint because the State enjoys Eleventh Amendment immunity from suit. In United States v. Georgia, 546 U.S. 151, 159 (2006), the Supreme Court held that the ADA abrogates state sovereign immunity for conduct that also violates the Fourteenth Amendment to the United States Constitution. The Supreme Court has not, however, held that state sovereign immunity is abrogated for conduct that does not rise to the constitutional level. See id.; see also Spencer v. Earley, 278 F. App’x 254, 257-58 (4th Cir. 2008). Indeed, the Fourth Circuit has upheld the dismissal of an ADA claim on the basis of state sovereign immunity where the conduct did not violate the Fourteenth Amendment. Barnes v. Young, 565 F. App’x 272, 273 (4th Cir. 2014). Because the undisputed record evidence demonstrates that no constitutional violations have occurred in this case, the State is immune from suit for the purported ADA violations alleged in the amended complaint.
45

Accordingly, summary judgment should be granted to the Department and Secretary Moyer

under Count III. 12

VI.

DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT WITH REGARD

TO PLAINTIFFS’ REQUEST FOR INJUNCTIVE RELIEF BECAUSE

PLAINTIFFS CANNOT DEMONSTRATE ENTITLEMENT TO AN

INJUNCTION.

This Court should grant summary judgment to defendants on plaintiffs’ requests for

a permanent injunction, see Am. Compl. at 31 ¶ (requesting injunctive relief), because

plaintiffs cannot demonstrate that they are entitled to the remedy of an injunction. First,

the releases of plaintiffs Polley, Hammond, Delano, Hopkins, and Holley have rendered

moot their claims for any equitable relief. See Rendelman v. Rouse, 569 F.3d 182, 186 (4th

Cir. 2009) (“[A]s a general rule, a prisoner’s transfer or release from a particular

prison moots his claims for injunctive and declaratory relief with respect to his

incarceration there”); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (transfer of

prisoner mooted claims for injunctive and declaratory relief). See also Scott v. District of

Columbia, 139 F.3d 940, 941 (D.C. Cir.) (“Normally, a prisoner’s transfer or release from

a prison moots any claim he might have for equitable relief arising out of the conditions of

his confinement in that prison.”); Thompson v. Carter, 284 F.3d 411 (2nd Cir. 2002)

12 Although plaintiffs do not specify whether they bring their ADA claim against Secretary Moyer in his official or individual capacity, Title II of the ADA does not permit individual capacity suits against a state official. Barnes v. Young, 565 F. App’x 272, 273 (4th Cir. 2014). Moreover, “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. As such, it is no different from a suit against the State itself.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (internal quotation omitted). Thus, although plaintiffs assert their ADA claim against Secretary Moyer in addition to the Department, it should be construed as asserted only against the State.
46

(prisoner’s transfer to a different correctional facility mooted his request for injunctive relief against employees of the transferor facility). See also Abdul–Akbar v. Watson, 4 F.3d 195, 206–07 (3d Cir.1993) (vacating injunctive relief granted by district court to inmate who had been released from prison five months prior to trial).
“Under ‘well-established principles of equity,’ a plaintiff seeking a permanent injunction must demonstrate:
(1) that [he] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Legend Night Club v. Miller, 637 F.3d 291, 297 (4th Cir. 2011) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). The Court’s authority to award prospective equitable relief is further restricted by the Prisoner Litigation Reform Act (“PLRA”). Under the PLRA, “[p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs,” and a court may not grant or approve any prospective relief unless it “finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).13 Thus, any prospective relief in this action could do no more than
13 The PLRA broadly defines “civil action with respect to prison conditions” as “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison,” with
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“correct the violation of [a] Federal right” of one of the four prisoner-plaintiffs. See Ball v. LeBlanc, 792 F.3d 584, 599 (5th Cir. 2015) (holding that in prison conditions case that was not a class action, “the PLRA limit[ed] relief to the [three] particular plaintiffs before the court”). See also Brown v. Plata, 563 U.S. 493, 523 (2011) (“[T]the scope of the order must be determined with reference to the constitutional violations established by the specific plaintiffs before the court.”)
Here, plaintiffs Snead, Brown, Wilson, and James cannot establish that they are currently being deprived of the protection of any federal right. As demonstrated above, all of plaintiffs’ constitutional claims lack merit, and plaintiffs thus have no entitlement to an order correcting the purported violation of any constitutional right. Plaintiffs Snead, Brown, Wilson, and James also cannot demonstrate a present violation of their rights under the ADA or Rehab Act. To do so, they must demonstrate that they are being denied the benefits of a service, program, or activity “due to discrimination solely on account of [a] disability.” Koenig v. Maryland, No. Civ.A. CCB-09-3488, 2010 WL 148706, at *1 (D. Md. Jan. 13, 2010), aff’d, 382 F. App’x 273 (4th Cir. 2010); 29 U.S.C. § 794(a) (Rehab Act case).14
the exception of “habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2). 14 As noted in defendants’ motion to dismiss, ECF No. 100-1 n. 4 which is incorporated herein by reference, plaintiffs’ ADA claims, were they permitted to proceed, would be analyzed under the same standard as their Rehab Act claims. For the purposes of this motion only defendants assume that plaintiffs are “qualified individuals with a disability” under the disability rights statutes. See supra n. 1.
48

The undisputed evidence demonstrates that plaintiffs Snead, Brown, Wilson, and James are not being denied the benefits of any of the DOC’s programs as a result of a disability. The auxiliary aids, services, and accommodations currently being provided to the plaintiffs, permit them to participate fully in programs and services offered by RCI, and a review of their depositions confirms that they are currently suffering no injuries with regard to access to programs or services as a result of a visual impairment, much less irreparable ones warranting the issuance of a permanent injunction. See Brown Dep. 41, 107, 109, 134 (acknowledging that he has been provided an audio player and a magnifier with a light, a walker who assists him in getting to the dining hall and reading, and that the computer in the library has a device that converts printed words to audio); James Dep. 7980, 82, 114, 129, 134 (James uses a cane to walk within the facility, and has a walker who shows up when called and takes him where he has to go, assists him in obtaining his medication, and does not require payment; he has an audio player that reads books to him, and the institution now has a scanner; his tutor helps him reading braille; and the institution is training tutors to be certified blind aides); Snead Dep. 18, 19, 30, 32, 33, 59 (Snead has been learning to read braille through the Hadley school, uses a machine in the library that reads written materials to him, had a book published in 2018, and two other inmates are assisting him in writing the second volume of the book; he uses a cane to walk, has a walker to assist him, and his only complaint is that the walker “take[s] a long time to . . . get over there to get to me”); Wilson Dep. 13, 15-16, 65 (Wilson is currently working on his GED, reads with bifocals, another pair of glasses and a magnifier; he uses a cane to walk not as a result of vision issues but due to a foot injury; and does not need a walker) (deposition
49

taken when Wilson was confined at ECI, now confined at RCI). Plaintiffs thus cannot demonstrate entitlement to any injunction that would comport with the narrow scope of relief permissible under the PLRA. Accordingly, this Court should grant summary judgment to defendants, dismiss all claims for equitable relief filed by plaintiffs Polley, Hammond, Delano, Hopkins, and Holley, and deny plaintiffs’ request for an injunction.
CONCLUSION Defendants’ motion for summary judgment should be granted.
Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland
__________/s/__________________ LISA O. ARNQUIST Bar No. 25338 MICHAEL O. DOYLE Bar No. 11291 Assistant Attorneys General Department of Public Safety & Correctional Services 300 E. Joppa Road, Suite 1000 Towson, Maryland 21286 (410) 339-7568 (410) 764-5366 (facsimile) lisa.arnquist@maryland.gov michaelo.doyle@maryland.gov Attorneys for Defendants
50

 
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Brown v. Plata 86
California Council of the Blind v. County of Alameda )6XSSG1'&DO
Castle v. Eurofresh, Inc. )GWK&LU
Chisholm v. McManimon )GG&LU
Clarkson v. Coughlin )6XSS6'1<
Class v. Towson Univ. )GWK&LU
Coleman v. Southern Pac. Transp. Co. )6XSS'$UL]
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Eldredge v. City of St. Paul )6XSSG'0LQQ2011) 
Enyart v. Nat’l. Conf. of Bar Examiners, 823 F. Supp. 2d 995 (N.D. Cal. 2011)
Estate of Robert Ethan Saylor v. Regal Cinemas, Inc. 1R&9:01:/'0G6HSW
Estate of Saylor v. Rochford )$SS¶[WK&LU
Fahey v. Twin City Fan Cos., Ltd. )6XSSG'6'
Farmer v. Brennan 86
Harrington v. Vadlamudi 1R&9%.65)7:/1'1<-XO\
Henderson v. Thomas )6XSSG0'$OD
Henrietta D. v. Bloomberg )GG&LU
Hodges v. Fed.-Mogul Corp.  )$SS¶[WK&LU
Holmes v. Godinez )5'1',OO
Hudson v. Palmer 86
Jardina v. DPSCS 1R:/'0G
Kogut v. Ashe )6XSSG'0DVV
Love v. Westville Correctional Ctr. )GWK&LU
Miller v. Smith 1R&9-(*6'*D
Muhammad v. Kaloroumakis 1R±:/'0G
Nat’l Fed. of the Blind v. Lamone )GWK&LU
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Pa. Dep’t of Corr. v. Yeskey 86
Pandazides v. Virginia Bd. of Educ. )GWK&LU
Paulone v. City of Frederick )6XSSG'0G
Perez v. Arnone :/'&RQQ
Pierce v. District of Columbia )6XSSG''&
Proctor v. Prince George’s Hosp. Ctr. )6XSSG'0G
Randolph v. Rodgers )GWK&LU
Scott v. Harris86 Seremeth v. Bd. of Cty. Comm’rs
)GWK&LU Sites v. McKenzie
)6XSS1':9D Wright v. New York State Dep’t of Corrections
)GG&LU 6WDWXWHV 86& 86& 86& 86& 86& 86& 86& 5HJXODWLRQV &)5 &)5 &)5 &)5
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

STEVEN BROWN WILBERT DELANO GREGORY HAMMOND SEDRIC HOLLEY RUSSELL HOPKINS JOHNNIE JAMES TYRELL POLLEY MAYNARD SNEAD ROBERT WILSON,
Plaintiffs,
v.
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES STEPHEN MOYER DAYENA M. CORCORAN RICHARD MILLER,
Defendants.

* * * * * *
Civil Action No. RDB-16-945 * * * * * *

* * * * * * * * * * * * * * * * * * DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................................ii

INTRODUCTION ............................................................................................................. 1

ARGUMENT ..................................................................................................................... 2

I.

LEGAL PRINCIPLES APPLICABLE TO PRISONER COMPLAINTS BROUGHT

UNDER THE DISABILITY RIGHTS STATUTES. ......................................................... 2

II. PLAINTIFFS HAVE FAILED TO DEMONSTRATE THAT THEY ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE GENUINE DISPUTES OF MATERIAL FACT EXIST AS TO WHETHER PLAINTIFFS HAVE ESTABLISHED ANY VIOLATIONS OF THE REHAB ACT OR THE ADA. ................................................... 5

A. Denied “Private, Independent, and Effective Access” to Inmate Handbook and Orientation Materials..................................................................................... 7

B. Denied Ability to Read and Draft Grievances and Lawsuits “Privately and Independently.” .................................................................................................. 10

C. Denied Ability to “Read and Write Mail Privately and Independently.” .......... 15

D. Denied Access to Work and Educational Programs and Appropriate Security Classifications. ..................................................................................... 17

E. Denied Access to Treatment Programs at Patuxent Institution.......................... 27

F. Single vs. Double Celling................................................................................... 32

G. Denied Accommodations to Independently Navigate the Prison Facility ......... 35

CONCLUSION ................................................................................................................ 40

i

TABLE OF AUTHORITIES
Pages
Cases
A Helping Hand, LLC v. Baltimore Cty., MD, 515 F.3d 356 (4th Cir. 2008)........................................................................................... 6
Allen v. Carrington, No. C/A 4:07-797 DCN, 2009 WL 2877557 (D.S.C. Aug. 28, 2009).......................... 35
Am. Council of the Blind v. Paulson, 525 F.3d 1256 (D.C. Cir. 2008) .................................................................................... 36
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ........................................................................................................ 5
Bane v. Virginia Dep’t of Corr., No. CIV.A. 705CV00024, 2005 WL 1388924 (W.D. Va. June 9, 2005)....................... 4
Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222 (10th Cir. 2009)....................................................................................... 3
Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009)......................................................................................... 13
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .......................................................................................................... 5
Colon v. New York State Dep’t of Corr. & Cmty. Supervision, No. 15-Civ-7432 (NSR), 2017 WL 4157372 (S.D.N.Y. Sept. 15, 2017) ..................... 35
Dee v. Maryland Nat. Capitol Park & Planning Comm’n, Civ. CBD-09-491, 2010 WL 3245332 (D. Md. Aug. 16, 2010)..................................... 7
Doe v. Univ. of Maryland Med. Sys. Corp., 50 F.3d 1261 (4th Cir. 1995)................................................................................... 17, 28
Fauconier v. Clarke, 652 Fed. Appx. 217 (2016) ............................................................................................. 2
Ford v. Harvey, 106 F. App’x 397 (6th Cir. 2004) ................................................................................. 32
Havens v. Colorado Dep’t of Corr., 897 F.3d 1250 (10th Cir. 2018)............................................................3, 4, 11, 36, 39-40
ii

Hewitt v. Helms, 459 U.S. 460 (1983) ...................................................................................................... 32
Hudson v. Palmer, 68 U.S. 517 (1984) .......................................................................................................... 8
Jacobs v. N.C. Admin. Office of the Courts, 80 F.3d 562 (4th Cir. 2015)............................................................................................. 5
Jarboe v. Maryland Dep’t of Pub. Safety & Corr. Servs., No. Civ.A. ELH-12-572, 2013 WL 1010357 (D. Md. Mar. 13, 2013)....................2-3, 6
Jardina v. Dep’t of Pub. Safety & Corr. Servs., No. CV JKB-16-1255, 2018 WL 6621518 (D. Md. Dec. 18, 2018)............3, 4, 7, 18-19
Knapp v. Northwestern Univ., 101 F.3d 473 (7th Cir. 1996)......................................................................................... 17
Lee v. Town of Seaboard, 863 F.3d 323 (4th Cir. 2017)........................................................................................... 5
Levy v. Mote, 104 F. Supp. 2d 538 (D. Md. 2000) .............................................................................. 10
Lopez v. Kirkpatrick, 505 F. App’x 58 (2d Cir. 2012) .................................................................................... 15
Mark H. v. Lemahieu, 513 F.3d 922 (9th Cir.2008)............................................................................................ 3
Mason v. Corr. Med. Servs., Inc., 559 F.3d 880 (8th Cir. 2009)................................................................................... 11, 12
Middleton v. Chavis, No. 5:15-CT-03180-D, 2016 WL 7322515 (E.D.N.C. Apr. 12, 2016)......................25-6
Miller v. Hinton, 288 F. App’x 901 (4th Cir. 2008) ................................................................................... 7
Montanye v. Haymes, 427 U.S. 236 (1976) ...................................................................................................... 32
Nelson v. Campbell, 541 U.S. 637 (2004) ........................................................................................................ 5
iii

Onishea v. Hopper, 171 F.3d 1289 (11th Cir. 1999)....................................................................................... 4
Paulone v. City of Frederick, 787 F. Supp. 2d 360 (D. Md. 2011) ................................................................................ 3
Proctor v. Prince George’s Hosp. Ctr., 32 F. Supp. 2d 820 (D. Md. 1998) .................................................................................. 4
Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407 (4th Cir. 2015)........................................................................................... 5
Rogers v. Dept. of Health & Environmental Control, 174 F.3d 431 (4th Cir.1999)............................................................................................ 3
Shaikh v. Lincoln Mem’l Univ., 608 F. App’x 349 (6th Cir. 2015) ................................................................................. 34
Sheehan v. Beyer, 51 F.3d 1170 (3d Cir. 1995).......................................................................................... 32
Spivey v. Dep’t of Pub. Safety & Corr. Servs., No. Civ. JFM-09-440, 2009 WL 5177285 (D. Md. Dec. 18, 2009) ............................. 32
Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995)........................................................................................... 4
Turner v. Safley, 482 U.S. 78 (1987) .......................................................................................................... 3
Wells v. Thaler, 460 F. App’x 303 (5th Cir. 2012) ........................................................................... 11, 15
Williams v. Illinois Dep’t of Corr., No. 97 C 3475, 1999 WL 1068669 (N.D. Ill. Nov. 17, 1999) ...................................... 36
Wright v. New York State Dep’t of Corr., 831 F.3d 64 (2d Cir. 2016)...................................................................................... 36, 37
iv

Statutes, Regulations, & Rules 18 U.S.C. § 3626(a)(1)(A)............................................................................................... 1, 5
(Prison Litigation Reform Act) 28 C.F.R. § 35.104............................................................................................................. 13 28 C.F.R. § 35.152 .................................................................................................. 18, 19, 33 29 U.S.C. § 794 ......................................................................................................... 1, 2, 34
(Rehabilitation Act, Section 504) 34 C.F.R. § Pt. 104, App. A, subpt. A(5) .......................................................................... 17 42 U.S.C. § 12103 ................................................................................................6-7, 10, 15 42 U.S.C. §§ 12131-12165, 12201-12213....................................................................... 1, 2
(Americans with Disabilities Act, Title II) Corr. Servs. 3-203(a) ......................................................................................................... 33 Corr. Servs § 3-801 – 3-802 .............................................................................................. 21 Corr. Servs § 3-701 – 3-711 .............................................................................................. 24
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INTRODUCTION This Court should deny plaintiffs’ motion for partial summary judgment. In their motion, which they bring solely on their claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“Rehab Act”), plaintiffs seek a finding both that defendants have violated the rights of all nine plaintiffs under the disability rights statutes, and that defendants continue to do so. With regard to plaintiffs’ allegations of ongoing ADA and Rehab Act violations, defendants agree that there are no genuine disputes of material fact, but it is defendants, not plaintiffs, who are entitled to judgment as a matter of law. As demonstrated in defendants’ motion for summary judgment (ECF No. 178), the five plaintiffs who have been released from custody lack standing to assert a claim of ongoing illegal conduct, and the four who remain incarcerated cannot generate any genuine dispute of fact regarding the Department’s current ADA and Rehab Act compliance in their cases.1 Nor can the four remaining prisoner-plaintiffs establish that they are entitled to any injunctive relief that would comply with the strict requirements of the Prison Litigation Reform Act (“PLRA”). That statute limits the Court to “correct[ing] the violation of the Federal right of [the] particular plaintiff or plaintiffs,” and providing relief that “is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).
1 In their motion for summary judgment, ECF No. 178, which is incorporated herein by reference, defendants have moved for summary judgment on plaintiffs’ request for injunctive relief. See id. at 46-50.
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The Court should also deny plaintiffs’ motion for summary judgment on their claims

that at some point commencing in March 2013, certain plaintiffs experienced violations of

the Rehab Act.2 As demonstrated herein, a review of the record evidence demonstrates

that there are genuine disputes of material fact regarding plaintiffs’ claims of past Rehab

Act violations. Accordingly, plaintiffs’ motion for summary judgment should be denied.

ARGUMENT

I.

LEGAL PRINCIPLES APPLICABLE TO PRISONER COMPLAINTS BROUGHT

UNDER THE DISABILITY RIGHTS STATUTES.

Title II of the ADA provides that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subject to discrimination by such

entity.” 42 U.S.C. § 12132. The Rehab Act contains a similar prohibition, providing that

“[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or

his disability, be excluded from the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal financial

assistance. . . .” 29 U.S.C. § 794(a). “State prisoners . . . may qualify as ‘qualified

individual[s] with . . . disabilit[ies]’ . . . so as to come within the protection of Title II of

the ADA” and the Rehab Act. See Jarboe v. Maryland Dep’t of Pub. Safety & Corr. Servs.,

2 As demonstrated in defendants’ motion for summary judgment, see ECF No. 178 at 45, because plaintiffs cannot establish any violations of rights protected by the Fourteenth Amendment, the State’s sovereign immunity from suit under the ADA has not been abrogated. Nor has the State waived that immunity. While that immunity does not apply to claims for injunctive relief under the ADA, see Fauconier v. Clarke, 652 Fed. Appx. 217, 220 (2016) (per curiam), it fully bars plaintiffs’ ADA claims for damages. Thus, plaintiffs may pursue their claims for damages against the State only under the Rehab Act.
2

No. CIV.A. ELH-12-572, 2013 WL 1010357, at *2, 3 (D. Md. Mar. 13, 2013) (quoting 42 U.S.C. § 12131(2)) and citing Rogers v. Dept. of Health & Environmental Control, 174 F.3d 431, 433–34 (4th Cir.1999)).
Although “the majority of circuits that have resolved the question have held that damages may be awarded if a public entity ‘intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to disabled persons,’” Paulone v. City of Frederick, 787 F. Supp. 2d 360, 373 (D. Md. 2011) (quoting Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir.2008)), as applied to prisoners, “‘[m]eaningful access and the question of whether reasonable accommodations are made to an inmate must be assessed through the prism of the prison setting.’” Jardina v. Dep’t of Pub. Safety & Corr. Servs., No. CV JKB-16-1255, 2018 WL 6621518, at *4 (D. Md. Dec. 18, 2018) (quoting Havens v. Colorado Dep’t of Corr., 897 F.3d 1250, 1270 (10th Cir. 2018) (citing Turner v. Safley, 482 U.S. 78, 81 (1987) (noting that “the problems of prisons in America are complex and intractable” and that “[r]unning a prison is an inordinately difficult undertaking”))).
Ordinarily, to meet the deliberate indifference standard, a plaintiff must show “‘(1) [that the defendant had] “knowledge that a harm to a federally protected right [was] substantially likely,” and (2) “a failure to act upon that . . . likelihood.”’” Havens, 897 F.3d at 1264 (quoting Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1229 (10th Cir. 2009)) (internal quotations omitted). See also Paulone, 787 F. Supp. 2d 360, 374 (D. Md. 2011) (noting that this Court has “endorsed the proposition that ‘the level of proof necessary for finding intentional discrimination under [the] Rehabilitation Act means
3

a deliberate indifference to a strong likelihood that a violation of federal rights would result”) (citing Proctor v. Prince George’s Hosp. Ctr., 32 F. Supp. 2d 820, 829 n. 6 (D. Md. 1998)). But because “[p]rison officials have the obligation to consider security and other factors unique to the prison environment in their decision-making, and courts have accorded them considerable discretion to do so,” Jardina, 2018 WL 6621518, at *4; Havens, 897 F.3d at 1270 (citing Onishea v. Hopper, 171 F.3d 1289, 1300 (11th Cir. 1999) (en banc) and Torcasio v. Murray, 57 F.3d 1340, 1355 (4th Cir. 1995)), these unique considerations must be taken into account in assessing whether a prisoner “has . . . carried his burden of showing that a correctional agency” had “knowledge that a harm to a federally protected right [was] substantially likely.” Havens, 897 F.3d at 1271. See also Bane v. Virginia Dep't of Corr., No. CIV.A. 705CV00024, 2005 WL 1388924, at *4 (W.D. Va. June 9, 2005) (“[P]rison officials may determine the reasonableness of the accommodation request in consideration of other penological needs in the prison setting, such as security, safety and administrative exigencies.”).
Thus, as the Fourth Circuit explained in Torcasio, “any rights prisoners enjoy–– including the right of disabled inmates to some degree of accommodation––must be assessed in light of the requirements of prison administration . . . .” Torcasio, 57 F.3d at 1356. See also Jardina, 2018 WL 6621518, at *4) (“[A]ccommodations [under the ADA] are viewed in light of requirements of prison administration[.]”) (citing Torcasio, 57 F.3d 1340 at 1355).
These concerns apply with greater force to prisoner requests for permanent injunctive relief against state prison systems. First, “the need for a proper balance between
4

state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the states’ criminal laws in the absence of irreparable injury which is both great and immediate.” City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983). More specifically to this case, the PLRA, as noted, “imposes limits on the scope and duration of preliminary and permanent injunctive relief, including a requirement that, before issuing such relief, ‘[a] court shall give substantial weight to any adverse impact on . . . the operation of a criminal justice system caused by the relief.’” Nelson v. Campbell, 541 U.S. 637, 650 (2004) (quoting 18 U.S.C. § 3626(a)(1)). In light of these considerations, and as set forth more fully below, this Court should deny plaintiffs’ request for summary judgment. II. PLAINTIFFS HAVE FAILED TO DEMONSTRATE THAT THEY ARE ENTITLED
TO SUMMARY JUDGMENT BECAUSE GENUINE DISPUTES OF MATERIAL FACT EXIST AS TO WHETHER PLAINTIFFS HAVE ESTABLISHED ANY VIOLATIONS OF THE REHAB ACT OR THE ADA. In assessing plaintiffs’ motion for summary judgment, this Court must “‘view the evidence in the light most favorable to the [defendants]’ and refrain from ‘weigh[ing] the evidence or mak[ing] credibility determinations.’” Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017) (quoting Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015)). “The pertinent inquiry is whether ‘there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’” Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 413 (4th Cir. 2015) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). Because there are genuine issues of material fact regarding plaintiffs’ claims that they have
5

been subjected to intentional discrimination under the Rehab Act and ADA, this Court should deny plaintiffs’ motion.
In their Rehab Act and ADA claims, plaintiffs assert that the vocational, educational, and work release programs provided to sighted inmates are not “equally available to Plaintiffs.” Am. Compl. ¶¶ 53, 59. In particular, plaintiffs state that “[i]nmates within [the Department] may earn diminution credits and wages through work assignments,” id. ¶ 48, and allege that “Defendants have denied Plaintiffs placement in or removed them from certain jobs,” which plaintiffs do not identify, “based on unfounded safety concerns and stereotypes about the capabilities of blind individuals.” Am. Compl. ¶ 49. Further, plaintiffs allege that they have been denied private, independent, and effective access to the Inmate Handbook, “orientation materials,” mail service, the grievance process and courts, and the opportunity to navigate the prison without escort, despite being provided assistance with all of these services from other inmates. Am. Compl. ¶¶ 3, 33-40, 68-70, 48-50, 60-62. And they allege that they have been denied single-cell housing and the housing status of their choosing. Am. Compl. ¶¶ 74-76.
Plaintiffs have failed to demonstrate that they are being denied, or were denied, the benefit of any the programs and services about which they complain on the basis of their visual impairments. As noted, under the Rehab Act and the ADA, states may be required to make reasonable modifications to rules, policies, or practices, or to provide auxiliary aids and services to ensure that disabled persons can benefit from certain services, programs, or activities. Jarboe, 2013 WL 1010357, at *4 (citing A Helping Hand, LLC v. Baltimore County, Md., 515 F.3d 356, 362 (4th Cir. 2008)). With respect to blindness,
6

auxiliary aids may include “qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments.” 42 U.S.C. § 12103. In general, whether a modification is reasonable depends upon the “totality of the circumstances” and “whether the service, program, or activity . . . ‘when viewed in its entirety,’ is readily accessible,” Dee v. Maryland Nat’l Capitol Park & Planning Comm’n, Civ. CBD-09-491, 2010 WL 3245332, at *5 (D. Md. Aug. 16, 2010) (citation omitted). Of course, in prisoner cases, the court must also “consider security and other factors unique to the prison environment.” Jardina, 2018 WL 6621518, at *4.
Regardless of whether a claim is brought by a prisoner or by another individual, “a reasonable modification does not require the public entity to employ any and all means to make services available to persons with disabilities. Rather, the public entity is obligated to make those modifications that do not ‘fundamentally alter the nature of the service or activity of the public entity or impose an undue burden.’” Miller v. Hinton, 288 Fed. App’x 901, 902 (4th Cir. 2008) (citation omitted). Here, none of the plaintiffs can demonstrate that defendants have denied them access to any required services or benefits.
A. Denied “Private, Independent, and Effective Access” to Inmate Handbook and Orientation Materials.
Plaintiffs first claim that they were discriminated against by not being “afforded private, independent, and effective access” to the Inmate Handbook and “orientation materials.” Am. Compl. ¶ 3. Significantly, plaintiffs do not allege that they have no means of obtaining the information in these documents. Indeed, their awareness of the substance
7

of these documents is readily apparent even from the allegations of the complaint.3 Rather, they base their claim on their purported inability to access these documents “private[ly] and independent[ly].” Id. This claim is baseless. “Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for antisocial criminal, and often violent, conduct,” and “share[] none of the attributes of privacy of a home, an automobile, an office, or a hotel room.” Hudson v. Palmer, 468 U.S. 517, 526-7 (1984) (citation omitted). Thus plaintiffs, like every other inmate, have no right to conduct an “independent” and “private” review of the Inmate Handbook and “orientation materials.” See id. at 526 (holding that prisoner has no “subjective expectation of privacy . . . in his prison cell.”).
Moreover, absent from the record is any evidence that plaintiffs are, or were, denied access to these materials. When inmates arrive at RCI, they are given an orientation by a case manager and provided with the inmate handbook setting forth rules and procedures of the facility. See EXHIBIT 1, Transcript of the Deposition of Richard Miller (“Miller Dep.”) 58:6 – 59:1; EXHIBIT 2, Transcript of the Deposition of Maureen Reid (“Reid Dep.) 120:7-13; EXHIBIT 3, Transcript of the Deposition of Johnny James (“James Dep.”) 51:21 – 52:22. Inmates are informed at their orientation that they should contact their case managers if they have any particular needs in the facility, including any accommodations
3 Plaintiffs know, for instance, that inmates are given orientation materials “with information specific to the institution in which they are incarcerated,” Am. Compl. ¶ 28, and they have a detailed understanding of the inmate grievance process and associated forms that inmates must complete. Am. Compl. ¶ 32. Plaintiffs could not have this working knowledge without access to these materials.
8

for their disabilities. Miller Dep. 143:20 – 145:4; Reid Dep. 120:7-13. Additionally, an audio version of the inmate handbook was provided to all blind and visually impaired inmates who were housed at RCI in 2017, and another audio copy is available upon request. Defs’ Mem. Supp. Sum. Jud. Ex. 16, Campbell Declaration (“Campbell Decl.”) at ¶15; Reid Dep. 221:13 – 222:4. All institutional bulletins and directives are available in large print and video CD in the RCI library and are read on the inmate television service throughout the facility. Campbell Decl. at ¶14.
Several of the plaintiffs acknowledged their familiarity with the provisions of the Inmate Handbook and orientation materials. Indeed, Plaintiff Wilson testified, “when I first got [to RCI] they gave me a regular handbook” and “I read it.” See EXHIBIT 4, Transcript of Deposition of Robert Wilson (“Wilson Dep.”) 105. Mr. Wilson confirmed that he was “sure” that he received handbooks at the other institutions to which he was assigned, in particular, at ECI, where he was confined at the time of his deposition, and that all the handbooks contain the “same rules and regulations.” Id. He also stated that when he went to RCI in 2013, he received an orientation in a “book” that described the rules and regulations, which he was able to read, and that when he arrived at ECI in 2017, a case manager also gave him a verbal orientation. Id. at 102-103.
Mr. Delano also acknowledged that he received written orientation materials at each facility at which he was housed, but claimed that he could not read them. See EXHIBIT 5, Transcript of the Deposition of Wilbert Delano (“Delano Dep.”) 17-18. He admitted, however, that certain orientation materials were presented by video, and that he could listen to the audio portion of the presentation. Id. Additionally, Mr. Delano’s claim that the
9

written orientation materials were never provided to him in an accessible format is contradicted by Mr. Brown, who testified that he received a copy of the Inmate Handbook on CD from Mr. Delano when Mr. Delano was released. See EXHIBIT 6, Transcript of the Deposition of Steven Brown (“Brown Dep.”) 97. Maynard Snead could not remember if he was provided a copy of the inmate handbook, any type of orientation, or verbal instruction regarding inmate rules and rights. See EXHIBIT 7, Transcript of the Deposition of Maynard Snead (“Snead Dep.”) 173. These disputes of fact regarding the inmates’ access to orientation materials cannot be resolved by the court on summary judgment.
Plaintiffs’ failure to identify any injury arising from their purported ineffective access to the Inmate Handbook and other orientation materials is a separate basis for denying their summary judgment motion. “The mere violation of the ADA does not alone establish injury. A plaintiff is obligated to show, by competent evidence, that a defendant’s violation of the ADA caused him actual injury before such plaintiff can recover.” Levy v. Mote, 104 F. Supp. 2d 538, 544 (D. Md. 2000). The only “injury” plaintiffs plead is “the risk of discipline or confrontations with correctional officers or other inmates.” Am. Compl. ¶ 30. Nor have plaintiffs identified any concrete and non-speculative injures in their motion for summary judgment arising from their purported lack of access to these materials. This Court should deny plaintiffs’ request for summary judgment on this claim.
B. Denied Ability to Read and Draft Grievances and Lawsuits “Privately and Independently.”
This Court should also deny plaintiffs’ request for summary judgment on their claim that they were discriminated against by being denied access to the inmate grievance process
10

and the courts. Plaintiffs claim that because they are blind, they cannot read and draft grievances and other legal documents “privately and independently,” and cannot access the law library, without assistance from sighted inmates. Am. Compl. ¶¶ 33-40. The ADA itself does not contemplate that private and independent access to printed material is necessary; rather, it provides that a “qualified reader” is an acceptable auxiliary aid or service for the blind. 42 U.S.C. 12103(1)(B).
The complaint offers no specific examples of why the offered accommodation of an inmate reader is not reasonable for any particular plaintiff. Moreover, plaintiffs have failed to produce evidence demonstrating that their access is not meaningful and effective. Courts have routinely found that where inmates are given assistance with the grievance process and court proceedings from other inmates, the ADA is satisfied. See Havens, 897 F.3d at 1268-70 (finding no ADA violation where the inmate “had some degree of law library access, enough that he was able to pursue multiple lawsuits.”); Wells v. Thaler, 460 F. App’x 303, 312-13 (5th Cir. 2012) (holding “the existing accommodations were more than sufficient to give [plaintiff] effective and meaningful access to the law library” where another inmate read to him and assisted with court and other filings); Mason v. Correctional Med. Servs., Inc., 559 F.3d 880, 887 (8th Cir. 2009) (holding inmate assistant who helped plaintiff with daily tasks, including grievances, was sufficient under the ADA).
Department personnel testified that staff members were available to assist blind inmates in reading and writing. Indeed, Maureen Reid, who has been a case management supervisor at RCI since 2014 and was one of the Department’s Rule 30(b)(6) designees, Reid Dep. 6, 23, testified that the handbook informed all inmates that they could request
11

assistance from their case managers, and that it was understood that “case managers [who] are assigned to Housing Unit 1, where the blind inmates are housed,” could be “asked to do duties” for blind inmates that “they aren’t necessarily used to doing for the general population.” Reid Dep. 70. She also testified that the Administrative Remedy Procedure (“ARP”) policy provided that “case managers can assist in filling [the ARP form] out for [inmates] that are illiterate or can’t speak English, or [are] otherwise unable to fill out an ARP form.” Reid Dep. 202.4 See EXHIBIT 8, ARP Directive.
Contrary to plaintiffs’ argument, there is no requirement in the Rehab Act or ADA that a prison “assign” a particular staff member, or another inmate, to “read and write personal mail for blind inmates” or “act as a reader or scribe.” Pls’ Mem. at 13. Indeed, plaintiffs cite no authority whatsoever for this proposition, which is contrary to established case law holding that there is no ADA or Rehab Act violation so long as assistance is “reasonably available” to the prisoner. Mason, 559 F.3d at 887. But in any event, there is clear record evidence that blind inmate escorts were instructed that they could, on request, assist the inmate with reading and writing. Indeed, as noted, Case Manager Reid testified to this, Reid Dep. 70, 202, and the written instructions provided to the escorts explicitly state so. See EXHIBIT 10 “Job Duties for Inmates Assigned as Escorts for the Blind”
4 Although one RCI case manager, Kimberly Baker, testified that she declined to write an ARP for an inmate because she had been instructed to do so by a supervisor, see EXHIBIT 9, Transcript of the Deposition of Kimberly Baker (“Baker Dep.”) 64, she did not identify the inmate as any of the plaintiffs. In any event, she also testified that the supervisor instructed her to refer the inmate to other staff for assistance, in particular, the institution’s librarian or ARP coordinator, or to the inmate’s escort or “walker.” Ms. Baker also testified that she had read printed documents to blind inmates on request. Baker Dep. 63, 64.
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stating that (“[t]he escort may assist the visually impaired inmate with any written correspondence ([i.e.,] sick call requests, ARP’s, departmental requests to staff, etc[.]”)). Moreover, Department sick call policy allows inmates to verbally request unscheduled sick call at any time, even without a sick call slip.5 Single instances where Department policies were not followed do not establish that assistance was not “reasonably available.”
Nor is there any support in the law, or the record, for plaintiffs’ claim that defendants violated the ADA by failing to ensure that the inmates who assisted them with reading and writing were properly qualified. Contrary to plaintiffs’ belief, the ADA and Rehab Act do not require prison officials only to designate readers who “have a GED or high school diploma.” Pls’ Mem. at 34. Rather, a “[q]ualified reader [is] a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary.” 28 C.F.R. § 35.104. Plaintiffs do not even allege, let alone supply any evidence, that any of the inmates assigned to them were unable to read accurately or effectively.
The fact that the Department’s Rule 30(b)(6) deponent testified that it “sounded a little off base” that the Department did not require blind escorts to have a GED or high school diploma does not establish that the escorts were not “qualified readers.” See Pls’ Mem. at 34. The issue is whether they were able to read “effectively, accurately, and impartially,” 28 C.F.R. § 35.104, not whether they had any particular educational background. There is no evidence that the blind escorts were incapable of performing these
5 See Section II.E, n. 15, EXHIBIT 37, Transcript of Deposition of Sharon Baucom M.D., (“Baucom Dep.”) 25:18-26:12; 28:4-15.
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duties. On the contrary, they are screened to ensure that they “can read and write” and that they are “the more capable inmate[s].” Reid Dep. 219-221.
That plaintiffs currently have meaningful access is evident from the existence of the instant consolidated lawsuits and the fact the record evidence, that they have each filed grievances – some with assistance of other inmates, and some without needing any assistance at all. See Am. Compl. ¶¶ 33, 36-38, 40-41; Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009) (“Because he is currently exercising his right to petition the government for redress of grievances through this lawsuit, he has not been harmed.”). Mr. Wilson testified that while confined at RCI, he wrote and filed an ARP, Wilson Dep. at 39, regarding his need for a magnifier to assist him in reading, id. at 28-29, which was his “only complaint [he] had at the time,” id. at 29, and that he received the magnifier. Mr. Wilson also acknowledged that he filed “numerous” ARPs while confined at the Eastern Correctional Institution, id. at 107-108, that he never had to pay any inmate to help him file an ARP, id. at 67, and that when he was at RCI, he even helped another inmate prepare and file an ARP. Id.6 Additionally, he acknowledged that he filed a grievance with the Inmate Grievance Office. Id. at. 57-58.
Mr. Brown acknowledged that in 2013, he submitted an ARP to see the ophthalmologist, Brown Dep. 27, and testified that “Yeah, we got – I got people to file ARPs, and I think I filed some too.” Id. at 93. Indeed, he acknowledged receiving
6 Mr. Wilson claims that a correctional officer retaliated against him for assisting the other inmate with the ARP by planting a weapon in his cell. Wilson Dep. 66-70. However, that claim was investigated by the Department’s Intelligence and Investigative Division and found to be meritless. See Defs’ Mem. Supp. Sum. Jud. Ex. 30.
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favorable outcomes regarding some of his ARPs. Id. at 98. He also had other inmates file grievances with the IGO for him; one regarded charges against an officer, and another was for “legal stuff” in the library. Mr. Delano also acknowledged that he filed written complaints and ARPs. Delano Dep. 46, 65-66. Mr. Holley filed numerous ARPs, and in addition a grievance with the IGO resulting in a favorable decision from the Office of Administrative Hearings on the issue of auxiliary aides in the RCI Library. See EXHIBIT 11, Holley ARP/IGO.). In addition, ARPs were filed by Snead (EXHIBIT 12, Snead ARP), Hammond (EXHIBIT 13, Hammond ARP), and Hopkins (EXHIBIT 14, Hopkins ARP).
C. Denied Ability to “Read and Write Mail Privately and Independently.”
Plaintiffs have also failed to demonstrate that they are entitled to summary judgment on their claim that they must “rely on sighted inmates to use the mail services” and cannot “read and write mail privately and independently.” Am. Compl. ¶ 68. As noted above in § II.C and D, the ADA authorizes the use of “qualified readers” and “other effective methods of making visually delivered materials available to individuals with visual impairments.” 42 U.S.C. 12103(1)(B). Based upon this express language, courts have rejected claims that inmates are entitled to read and write mail “privately and independently” without the assistance of other individuals. See, e.g., Wells v. Thaler, 460 F. App’x 303, 310, 313 (5th Cir. 2012). Because plaintiffs’ preferred accommodation is not the benchmark of what is required under the disability laws, “[t]he failure to provide [plaintiffs] with the specific accommodations of [their] choosing does not violate the ADA or the Rehabilitation Act.” Lopez v. Kirkpatrick, 505 F. App’x 58, 59 (2d Cir.
15

2012). Rather, plaintiffs must show that their existing access is inadequate, Wells, 460 F. App’x at 313, and they have failed to do so because they have not produced undisputed facts demonstrating a denial of adequate access to the mail system.
On the contrary, the record is replete with evidence of plaintiffs both sending and receiving mail. See Delano Dep. 51 (testifying that he received and could read letters sent from his parents without requiring any assistance ); Brown Dep. 41 (testifying that, with regard to requests for assistance, “[O]ne of my biggest things from walkers is reading, and I felt that that was pretty much a good thing”); James Dep. 84-85 (testifying that he took correspondence courses through the mail); Snead Dep. 26-27, 32 (in the past other inmates would help him with reading his mail and now he uses a device that reads his mail to him). Additionally, while plaintiff Wilson vaguely claimed that he had difficulty sending mail, Wilson Dep. 109-110, he acknowledged that this was not a problem unique to blind inmates, and in any event, he admitted that he was able to send complaints and letters to government officials, including a Congressman. Wilson Dep. 57-58.
Contrary to plaintiffs’ claim, the fact that other inmates allegedly gained access to certain plaintiffs’ personal information does not, as a matter of law, render all inmates who provided assistance to plaintiffs “unqualified” for the purposes of the ADA. First, plaintiffs have not identified any other inmates who were assigned by staff to assist them and who allegedly procured their personal information. Rather, plaintiffs offer only vague and nonspecific statements to support their claim. For example, Steven Brown testified that another inmate sent an explicit letter to Brown’s “baby mother,” but acknowledged that the inmate, whom he could only identify as “James or something,” Brown Dep. 58, “wasn’t
16

assigned to [him]” but was “just somebody on the tier” whom he sometimes asked to assist him.7 Moreover, plaintiffs have again failed to demonstrate any actual injury resulting from their purported inadequate access to the mail system. Accordingly, plaintiffs’ motion based upon a purported denial of access to the mail system should be denied.
D. Denied Access to Work and Educational Programs and Appropriate Security Classifications.
This Court should also reject plaintiffs’ request for summary judgment on their claim that, because of their visual impairments, they have been denied access to work and educational programs that offer higher pay, training, and more diminution credits, and that they were placed in “inappropriate security classifications.” Am. Compl. ¶¶ 48-50, 54-56; Pls’ Mem. at 39-40. In particular, plaintiffs claim they have been denied placement in, or were removed from, programs based upon “unfounded safety concerns and stereotypes,” and have been “relegated to jobs that pay less and offer fewer diminution credits and opportunities for vocational training.” Am. Compl. ¶ 49.

7 Similarly lacking in evidentiary support is plaintiffs’ claim that other inmates

“submit[ted] fake sick call slips for [Brown] for embarrassing ailments.” Pls. Mem. at 14.

The sole support offered by plaintiffs for this proposition are the sick call slips themselves,

see id. Ex. 26, which provide no indication whatsoever that they were written by inmates

assigned to assist him; the slips only contain statements by Brown that he “didn’t write”

them. Ex. 26, BROWN 643. Indeed, absent from Brown’s deposition or answers to

interrogatories is any testimony, or even a claim, that the “fake” sick call slips were

prepared by other inmates assigned to assist him, or, for that matter, by any other inmate

who allegedly accessed his personal information. The “evidence” offered by plaintiffs on

this claim is plainly insufficient to warrant the entry of summary judgment. Moreover,

plaintiffs’ assertion that Mr.

HIV status was at risk of disclosure, Pls. Mem. at

13-14, would require unsupported inferences. Mr.

never suggested in any of his

testimony that his HIV status was disclosed; plaintiffs’ assertions that an inmate could infer

he was HIV positive from his medication requests are based only on speculation.

17

In order to maintain such a claim, plaintiffs must sufficiently plead that they are qualified for the benefit in question, i.e., a specific program, and that they were excluded “due to discrimination solely on the basis of the disability.” Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir.1995). An individual is not qualified if he or she “poses a significant risk to the health or safety of others by virtue of the disability that cannot be eliminated by reasonable accommodation. Id. “Legitimate physical qualifications may in fact be essential to participation in particular programs.” Knapp v. Northwestern Univ., 101 F.3d 473, 482 (7th Cir. 1996); see also 34 C.F.R. § Pt. 104, App. A, subpt. A(5) (noting that a blind person who possesses all of the qualifications for driving a bus except sight is not qualified to be a bus driver).
The evidence offered by plaintiffs on this issue is far from undisputed, and falls woefully short of meeting their burden of showing entitlement to judgment as a matter of law. First, contrary to plaintiffs’ apparent belief, the disability rights statutes and accompanying regulations do not require that Department offer the same “specialized programming” at every institution. Pls. Mem. at 39; see id. at 16 (“Other facilities offer programs not available at RCI or ECI.”). Indeed, in so claiming, plaintiffs omit from their memorandum key language from the regulations on which they rely. Under 28 CFR 35.152, which is applicable to correctional facilities, public entities “shall ensure that inmates or detainees with disabilities are housed in the most integrated setting appropriate to the needs of the individuals” and “[u]nless it is appropriate to make an exception,” a public entity shall not: place inmates in (i) inappropriate security classifications due to unavailable cells or beds, (ii) designated medical areas unless they are receiving medical
18

care, (iii) facilities that do not offer the same programs as would otherwise be available, or (iv) deprive them of visitation with family members by placing them in distant facilities. 28 C.F.R. § 35.152 (b)(1-3) (emphasis added). See Pls. Mem at 37-38 (quoting 35.152(b)(2)(i),(iii), (iv) but failing to include the “[u]nless it is appropriate to make an exception” language). Thus, consistent with the principle that the reasonableness of accommodations “must be assessed through the prism of the prison setting,’” Jardina, 2018 WL 6621518, at *4 (D. Md. Dec. 18, 2018), the regulations sensibly allow correctional authorities to make decisions regarding housing and programming on a caseby-case basis, in a manner “appropriate to the needs” of the particular prisoner, 28 C.F.R. § 35.152, while at the same time taking into account “security and other factors unique to the prison environment.” Jardina, 2018 WL 6621518, at *4
The record contains ample evidence that this is exactly what defendants have done. First, contrary to plaintiffs’ allegations, plaintiffs have been classified to security levels below medium security. See Baker Dep. 259, 243. See also EXHIBIT 15, Hopkins Security Reclassification Instrument; EXHIBIT 16, James Security Reclassification Instrument; EXHIBIT 17, OCMS Confidential Case Notes.8 In certain cases, however, correctional staff determined that the prisoners should remain at RCI so that they could continue to receive the benefit of services available at the facility for blind inmates. Baker
8 Additionally, Mr. Holley’s 2010 Security Reclassification Instrument, Pl.’s Mem. Supp. Sum. J. Ex. 36, classified Mr. Holley as medium security because inmates are not eligible for minimum security classification until 5 years from release, and Mr. Holley still had over 15 years remaining on his sentence at that time. Reid Dep. 45:3-19.
19

Dep. 102-04, 235-38; Reid Dep. 33, 35-39. 9 In other cases, plaintiffs were transferred, or given the opportunity for transfer, to minimum security facilities. For example, in particular, in September 2016, Warden Miller notified Mr. Wilson that “Dorsey Run Correctional Facility [“DRCF”], which is ADA compliant, would be the best housing assignment based upon your minimum security status,” and that he was “on the transfer list for DRCF.” See EXHIBIT 18, Letter from Richard Miller to Robert Wilson (Wilson 3212). However, after his transfer to that facility, where he had minimum security status, Wilson Dep. 77, Mr. Wilson had an argument with another inmate “over a fan,” id., and, after the inmate allegedly threatened him, he was transferred for his safety. Id.; Reid Dep. 39. Mr. Hopkins and Mr. Snead were offered to transfer to DRCF, but they declined. Reid Dep. 38-39; see also, EXHIBIT 19, Transcript of Deposition of Russell Hopkins (“Hopkins Dep.”) at 148-49 (acknowledging that he had requested to be transferred to a minimum security facility but subsequently “decided [he] wanted to stay at RCI”).
Although plaintiffs’ claim that “minimum security and pre-release facilities offer benefits to inmates not otherwise available at medium security facilities,” Pls. Mem. 39, in the cases of the plaintiffs, there is ample evidence to the contrary. First, Ms. Reid, the RCI case management manager and one of the Rule 30(b)(6) deponents, testified that the job opportunities at minimum security facilities and medium security facilities “are pretty
9 Ms. Reid explained that a minimum security inmate could be confined at a medium security facility such as RCI because “[a]ny inmate can be [at] lower security and be housed at a higher-security level facility.” Reid Dep. 33. Thus, for example, in the case of Mr. Hopkins, cited by plaintiffs, the security classification review document specifies that Mr. Hopkins should “remain to minimum security” and indicates that he is “vision impaired should remain @ RCI for housing.” See Pls’ Ex. K-35 (Hopkins00000127).
20

much going to be the same.” Reid Dep. 28-29. She stated that “the differences will be for those that might be eligible for outside detail,”10 id., which permits inmates to
participate in assignments outside the facility, but that “[e]verything else would be the
same.” Id. However, Ms. Reid noted that outside detail is also offered at some medium
security facilities, including RCI, id. at 29-30, that “not every minimum-security institution
has an outside detail,” and that “even if they have one, it may only be one or two persons
that are. . . employed.” Id. at 30. Ms. Reid testified that while inmates at minimum security
facilities have a “little bit more freedom” inasmuch as they housed in dormitories, id. at
27-28, those facilities do not offer any programming that is unavailable to inmates at
medium security institutions. Reid Dep. 32. Finally, Ms. Reid noted that inmates who
progress below minimum security status, to pre-release status, could be placed into work release, and that RCI houses inmates who are in pre-release status.11 Plaintiffs are thus
wrong to argue that they could not obtain vocational opportunities or training without being
transferred to a lower security facility.
Plaintiffs are also wrong to argue that they were denied the benefit of job
opportunities at RCI. Plaintiffs’ complaint that they were not afforded the opportunity to
work in the kitchen or dining hall is without evidentiary support. Institutional food services
10 An inmate may not be eligible for outside detail or work release because of the nature of the inmate’s offenses, Reid Dep. 44:6-9, a restriction that applied to Mr. Hopkins, Hopkins Dep. 145:12-14, and Mr. Delano. 11 Work release is governed by § 3-801 of the Correctional Services Article, which permits the DOC to establish a work release program, under which “an inmate . . . may be granted the privilege of leaving actual confinement” to “work at gainful public or private employment, “attend school,” or “under appropriate conditions . . . seek employment”. Corr. Servs § 3-801 and 3-802.
21

inside a correctional setting faces unique challenges and constrained resources. For example, the dietary manager at RCI testified at his deposition that he had just received authority to purchase new equipment—replacing two grills from 1986 that could no longer be serviced and a 100-gallon pot that had a hole in it and could not be repaired consistent with the health code. See EXHIBIT 22, Transcript of Deposition of Lieutenant Jon Schenck (“Schenck Dep.”) 24:7-19. The pot had “been out of service, and for three years [he had] been asking for a replacement pot, and they finally came up with the money.” Id. at 24:17-19. There is never any training or printed materials that are offered to kitchen workers. Id. at 26:3-10. Inmate kitchen workers are assigned a specific job based on “ability,” id. at 80:14, and they are expected to learn on the job by shadowing other inmates. Id. at 85:17-86:14. If they are not able to pick up needed skills from observation and peer learning, they are returned to a job category they can perform. Id. 86:18-87:5.
The food services staff consists only of 12 line officers and 3 supervisors, whereas there are around 275 inmates on the kitchen payroll. Compare Schenck Dep. 27:16-29:6 with 87:15-18. At each shift, there are 55 inmate workers, at minimum. Id. 67:15-70:14. They are supervised by five officers. Id. at 89:20-90:1. Inmates are therefore left unsupervised for minutes at a time while officers circulate to other parts of the active kitchen. Id. As Lieutenant Schenck explained, “our kitchen is so big that, you know, if you’re in the front of the kitchen watching the inmates pull chicken and stuff out of the oven, you can’t watch the inmates in the back who are doing your bread and stuff.” Id. at 91:9-13. Inmate behavior is a concern; inmates try to steal high-value food items for resale to other inmates in the general population and try to tear apart kitchen equipment to
22

make weapons. Id. at 92:8-14. When asked how inmates are prevented from using kitchen equipment as weapons in the kitchen, Lt. Schenck replied, “You can’t.” Id. at 92:18. While the kitchen knives are tethered, inmates do not have to be directly supervised when using knives and an inmate could drag another inmate within the four-foot range of the tether to stab him. Id. at 93:16-94:2. Inmates on occasion fight in the kitchen; if they do, they are excluded from further assignments in dietary. Id. at 101:8-20.
It is in this context that prison officials expressed concern over placing totally blind inmates, like Mr. Hopkins, in an environment where it is difficult to ensure inmate safety. When Mr. Hopkins, who plaintiffs admit has had no light perception for the entire time he was at RCI, Pls’ Mem. at 3, was sent by case management to food service, the open position was on “the serving line,” which required Mr. Hopkins to be in “such close quarters with” approximately 60 inmates in the serving line and had a high risk of error in putting hot food on someone’s hand or upending a tray. Schenck Dep. at 129:17-130:2. While Lt. Schenck testified that he did not have specific knowledge of Mr. Hopkins’s visual acuity, he knew he would be impaired in many kitchen tasks because Mr. Hopkins was “pretty blind.” Id. at 131:10. These conditions caused Lt. Schenck to request that Mr. Hopkins wait for a greeter job to become available “for his safety,” id. at 130:1-2, but he would not have made that request for any inmate. Id. at 131:6-10. Although Mr. Hopkins was told that he was let go from this original job for “safety reasons” he did not at the time inquire further about what the reasons were. Hopkins Dep. 65:5-12. There is no evidence that he requested or suggested any accommodation that could be made in order for the job to be made safe. Id.
23

By contrast, when Mr. Delano, who has low vision, and Mr. Timothy Sherman, a visually impaired non-plaintiff, were assigned to food service, Lt. Schenck allowed them to work to their comfort level, performing dishwashing and dining room sanitation duties, respectively. Mr. Delano was originally re-assigned out of the kitchen when the RCI safety officer was concerned that Mr. Delano’s medically documented need for a single cell and other accommodations conflicted with the safety requirements of the institutional food services jobs. See EXHIBIT 21 Landin E-mail (Schenck Dep. Ex. 149). Mr. Delano regained his dishwashing job during his second period of incarceration at RCI. Schenck Dep. 121-124. Mr. Sherman continued to perform his food services job until he left RCI. Id.
Although Mr. Holley testified he made verbal requests for kitchen work assignments from 2013 to 2017, See EXHIBIT 22, Transcript of Deposition of Sedric Holley (“Holley Dep.”) 49:7-51:21, there is no record of any verbal request to case management since 2010. See EXHIBIT 23, OCMS Confidential Case Notes Sedric Holley. It is therefore in dispute whether Mr. Holley renewed his request to be assigned to food services at any time after the 2012 administrative decision. Similarly, although Mr. Polley testified that he requested to be placed on the food service wait list, his case notes indicate that he was placed on sanitation while awaiting assignment to mandatory education in December 2015 as his initial assignment. Four months later, he was placed in mandatory education as a student earning 10 diminution credits per month.12 See EXHIBIT 24, OCMS Confidential Case
12 Under §§ 3-701 – 3-711 of the Correctional Services article, an inmate serving term of confinement in the DOC may earn credits to reduce the length of the inmate’s incarceration. There are four types of diminution of confinement credits that inmates may earn: good conduct credits, industrial credits, educational credits, and special project credits. Good
24

Notes Tyrell Polley. He remained in school other than a period of disciplinary segregation. Id. Mr. Wilson also testified that he worked in the kitchen at RCI for several months, earning pay and diminution credits, but that he left that assignment to attend school, which was “more important because they outlined the things that I needed.” Wilson Dep. 63-64.13 Mr. Brown currently works in the kitchen as a greeter and also washes dishes there, earning 10 diminution credits per month.14
There is no dispute of material fact that blind inmates are currently reasonably accommodated in work assignments to food services. After the blind greeter position was created in 2016, Lt. Schenck described how when a visually impaired inmate is assigned to food services, food service staff “do not know what their limitations are. So we give them that job first, and then if they decide they want to try and do something different,”

conduct credits are deducted “in advance from the inmate’s term of confinement,” subject

to the inmate’s future good behavior. Corr. Servs. § 3-704(a). The other types of credit

are awarded monthly, as they are earned. Corr. Servs. §§ 3-705 – 3-707. Once an inmate

“serving a term of confinement of more than 18 months” has “served the term or terms,

less diminution credit awarded,” the inmate is released on mandatory supervision, Corr.

Servs. § 7-501(a), and “is subject to . . . all laws, rules, regulations, and conditions that

apply to parolees.” Corr. Servs. § 7–502(b)(1) and (2).

13 As of February 2019, while confined at ECI, Mr. Wilson was earning 10 credits per

month, and pay, for attending school to earn his GED. Wilson Dep. 101. He stated that he

desired to work in a “shop,” such as the Electronics shop, but acknowledged that he is not

qualified because he does not yet have his GED. Wilson Dep. 65.

14 Mr.

stated that he made a request to work in the kitchen when he was confined

at ECI, but that it was shortly thereafter that he “came down with my disease [multiple

sclerosis] and got sick and went blind and got moved” to another part of the institution, and

thereafter to RCI. See EXHIBIT 25, Transcript of Deposition of

(“

Dep.”) 14, 59. Mr.

did not allege that he ever requested to work

in the kitchen at RCI. Additionally, he acknowledged that he worked a sanitation job at

RCI,

Dep. 51-52, that he was enrolled in classes for his GED, and that the

institution provided a tutor to assist him with reading in his classes.

. 71.

25

like some of the other job responsibilities in the kitchen, they can attempt to do so. When asked if a blind inmate could ask to be a cook, Lt. Schenck said “if we have an opening and he thinks that he can handle it, we would give him a try.” 134:18-20. The current position of the Department is that a blind inmate will be assigned duties in food service commensurate with inmate preference and ability. See EXHIBIT 26, Transcript of the Deposition of Casey Campbell (“Campbell Dep.”) 362:2-6; Reid Dep. 272:1-12. There is no current visually impaired inmate who has requested to work in dietary who did not have that request fulfilled at some point during his incarceration. Reid Dep. 275:8-19; Schenck Dep. 132:10-133:1 (there is no current waitlist for blind greeter job).15 Given the vast evidence in the record documenting the educational and vocational opportunities provided to the plaintiffs, this Court should deny their motion for summary judgment. See Middleton v. Chavis, No. 5:15-CT-03180-D, 2016 WL 7322515, at *2 (E.D.N.C. Apr. 12, 2016), (recommending dismissal of visually impaired prisoner’s complaint where “the face of [the] complaint clearly indicates that [plaintiff] participates in numerous [prison] recreational activities . . . [and] work assignments”), report and recommendation adopted, No. 5:15-CT-3180-D, 2016 WL 7324079 (E.D.N.C. Dec. 15, 2016)).
15 Mr. Snead testified that he also “signed up for the greeter job,” Snead Dep. 119, but was unable to participate in the assignment because his physical examination revealed that he had a nail fungus. Id. However, Mr. Snead testified that he participated in other jobs for which he earned pay and diminution credits, including a position that was “like the head of sanitation,” where he earned the most of any inmate working the sanitations assignment, and that he was also transferred to the “honor tier.” Snead Dep. 115-116.
26

E. Denied Access to Treatment Programs at Patuxent Institution The record also contains abundant record evidence to contradict Mr. Delano’s claim that he was denied the opportunity to participate in the Parole Violators Program (“PVP”) at Patuxent Institution because of his blindness, and Mr. Snead’s claim that he was unlawfully denied the opportunity to participate in Patuxent’s Eligible Person program. Mr. Delano was released from incarceration on mandatory supervision release on December 21, 2017. See EXHIBIT 27, OCMS Traffic History Wilbert Delano.) Within less than two months, he had violated the conditions of his release and was returned to Department custody. Id. Among Delano’s numerous infractions was his continued use of controlled dangerous substances. See EXHIBIT 28, Transcript of revocation hearing in case of Wilbert Delano dated February 22, 2018. Delano was incarcerated at Patuxent Institution pending his revocation hearing before a Commissioner of the Maryland Parole Commission. Exhibit 27. On February 15, 2018, while awaiting his revocation hearing, Mr. Delano approached Sergeant Michael McClean and informed him that he “fear[ed] for his safety” and that “there [was] an inmate somewhere in the facility which [sic] knows []Delano from RCI, and this inmate was communicating with other inmates.” See EXHIBIT 29, Email from Sergeant Michael McClean to Janae Allen, Case Management Specialist II dated February 15, 2018. Mr. Delano further reported that “due to his impairment he would not be able to defend himself if attacked, and that he most likely would not be able to identify his attacker(s)”. Id. Sergeant McClean advised the case management staff about this disclosure and inquired about placing Mr. Delano is medical segregation to address his safety concerns. Id.
27

A hearing was convened before Maryland Parole Commissioner John Cluster on February 22, 2018. EXHIBIT 28. Mr. Delano admitted that he had violated the terms of his release and his mandatory supervision release was revoked. Id. pp. 1,8.; see also, EXHIBIT 30, Decision Resulting from Parole/Mandatory Supervision Release Violation Hearing dated February 22, 2018. During the hearing, Commissioner Cluster deemed Mr. Delano, to be a “threat to society.” EXHIBIT 28, p. 6. Commissioner Cluster revoked Mr. Delano’s release, rescinded all of his diminution credits and referred him to the Parole Violators Program (“PVP”), which he described to Delano as “a drug program.” Id. Commissioner Cluster told Mr. Delano “[i]f you successfully complete that, which is about a six month program, … if you complete that you write me and I’ll amend your decision and let you out. If you do not complete you’re going to be in jail for quite a few years.” Id. pp. 6-7.
On February 26, 2018, Delano was evaluated by Hettie T. Wilson, Physician Assistant at Patuxent, who reported that Delano was having problems navigating stairs and is concerned about falling. See EXHIBIT 31, Note from Wilbert Delano medical records memorializing appointment of February 26, 2018. The Physician Assistant opined that Delano “would be best served at a facility that can accommodate his specific needs” and recommended that “he be transferred to the most appropriate facility immediately.” Id. Mr. Delano was transferred from Patuxent to RCI on March 14, 2018. EXHIBIT 27.
Because the PVP is only offered at Patuxent, Delano was not able to attend that program. RCI case management staff contacted Commissioner Cluster on Delano’s behalf to advise that his lack of participation in PVP was due to no fault of his own. See EXHIBIT
28

32, Email from Dwight Barnhart Case Management Specialist II to Commissioner John Cluster dated March 19, 2018. In light of this information, Commissioner Cluster reconvened a hearing on May 16, 2018, to address his prior referral to PVP and to ensure that Mr. Delano suffered no adverse implication on his length of incarceration due to the inability to attend the PVP. See EXHIBIT 33, Testimony Transcription in the Case of Wilbert Delano DOC #346138 May 16, 2018. After the hearing, Commissioner Cluster issued a subsequent decision in which he allowed for Mr. Delano to write requesting an amended decision within the approximate time it would have taken him to complete the Parole Violators Program. See EXHIBIT 34, Decision Resulting from Parole/Mandatory Supervision Release Violation Hearing dated May 16, 2018. Mr. Delano was released from custody on October 25, 2018.
As noted, a party claiming discrimination under Title II of the ADA must prove “that he is otherwise qualified for the benefit in question” and that he “was excluded from the benefit due to discrimination solely on the basis of the disability.” Doe v. University of Md. Med. Sys. Corp., 50 F.3d at 1265. Delano is unable to prove that he was “otherwise qualified” for to participate in the PVP. Inmates referred to the PVP by the Parole Commission are subject to eligibility review by Patuxent’s Associate Director of Behavioral Sciences, Dr. Erin Shaffer, before they are officially enrolled in the program. In order to qualify for participation in PVP the inmate must meet the following criteria: 1) no Category 100 level infraction within the past six months; 2) enough time on sentence to complete the program; 3) have no enemies at Patuxent; and 4) must be able to be safely
29

housed in the general population at Patuxent. See EXHIBIT 35, Transcript of Deposition of Dr. Erin Shaffer (“Shaffer Dep.”) 54, 56-57.
There is substantial record evidence showing that Delano was not “otherwise qualified” to participate in the PVP. First, he was not an inmate that could be safely housed in the general population at Patuxent. In fact, it was Delano who brought that fact to the attention of correctional staff at Patuxent expressing “fear for his safety.” EXHIBIT 29. Moreover, the medical staff at Patuxent expressed further reservations about the appropriateness of housing Delano at Patuxent due to the stairs, and recommended that he be transferred to another facility that could better accommodate his needs. EXHIBIT 31. Finally, Delano expressed fear about “another inmate he knew from RCI” and raised the prospect of an assault. EXHIBIT 29. These facts render him ineligible under two of the eligibility criteria. Specifically, Delano was not an inmate who could safely be housed in general population at Patuxent, nor was he an inmate who had no enemies at Patuxent.
Nor can Mr. Delano establish that he was “excluded from the benefit” of the programming offered by the PVP because he was offered comparable programming at RCI. The evidence shows that while housed at RCI, Mr. Delano refused to participate in substance abuse treatment, which was the specific reason that Commissioner Cluster referred Mr. Delano him to the PVP in the first place. EXHIBIT 28, p. 6. Department records confirm Mr. Delano’s approval for and refusal to participate in substance abuse programing while at RCI. In a memorandum Michael E. Rines, Addiction Counselor, reported the following:
30

A tap [treatment assignment protocol] assessment was performed on Mr. Delano 346138 on 8-23-18. He was approved by headquarters to be placed in ATP [Addictions Treatment Protocol] 038 at RCI. He was issued an individual pass on Tuesday September 4 in an effort to have him sign consent for treatment. He did not show. Group passes were issued to him on both September 5 and September 10. These were both efforts to have him sign consent for treatment. He did not sign consent. I did not discuss the consequences of not signing with him.
EXHIBIT 36, Memorandum from Michael E. Rines dated November 28, 2018 regarding
Wilbert Delano.
Likewise, there are numerous disputes of material fact surrounding the question of any of the individual plaintiffs’ participation in the Eligible Persons Program at Patuxent.
Plaintiffs rely upon the fact that Maynard Snead was referred by his Case Manager for participation in the program in 2009 and 2012. Plaintiff’s Exhibits Z-63, 64. Yet, plaintiffs provide no evidence – indeed there is none – that Mr. Snead was not selected to participate
in that program because of his visual impairment. In fact, there is no evidence he was ever
declined for participation in the program at all; rather, he simply remained on the referral
list. The deposition testimony revealed that the referral list for the Eligible Persons
Program had over 2000 names on it for 164 available slots. Shaffer Dep. 43-45. Dr. Erin
Shaffer, who oversees the program, testified that inmates have remained on the referral list
for years. Id. at 151. Moreover, the testimony of Dr. Shaffer confirmed that inmates are
not selected from the referral list in the order in which they were received. Id. at 43. Rather,
selection from the referral list is dependent upon numerous factors including: whether the
inmate was referred by the court, the length of sentence, presence of enemies at Patuxent,
and infraction history. Id. at 162-169.
31

The same is true for Wilbert Delano and Steven Brown, both of whom, plaintiffs
claim, were referred to the Eligible Persons Program at some point during their
incarceration. There is no evidence, or even an allegation, that Delano or Brown were
affirmatively rejected from participation in the Eligible Persons Program, let alone denied
from participating because of their visual impairment. They simply were referred, like
hundreds of other inmates for a program that has a limited number of available slots.
Furthermore, there are disputes of fact surrounding their eligibility for the program. These
disputed factual questions about 1) whether the identified plaintiffs were denied
participation, 2) if so, was it because of their visual impairment, and 3) whether they met eligibility criteria, preclude summary judgment.16
F. Single vs. Double Celling
Plaintiffs’ claim that the Department violated the Rehab Act and ADA by housing
them with a cellmate fails as a matter of fact and law. It is well-established that inmates
are not entitled to be housed in any particular facility or cell, just as they are not entitled to
any particular security classification. Spivey v. Department of Pub. Safety & Corr. Servs.,
16 Also without merit is plaintiffs’ argument that they were denied access to complete “sick call” slips to seek medical treatment. As noted above, Department sick call policy allows inmates to verbally request unscheduled sick call at any time even if they do not fill out a sick call slip. See EXHIBIT 37, Transcript of Deposition of Sharon Baucom M.D., (“Baucom Dep.”) 25:18-26:12; 28:4-15 (describing that inmates may request to be seen verbally and that correctional officers are responsible for documenting and fulfilling those requests). And, as Mr. Hopkins stated, a walker may write a sick call slip for a visually impaired inmate as part of his job duties. Hopkins Dep. 44:5-9. Although Mr. Hopkins testified that he might need assistance from another inmate in filling out sick call slips, he did not testify that he was unable to attend sick call if no slip was completed, or that he tried to attend sick call without using the slips and was denied. Id.
32

No. Civ. JFM-09-440, 2009 WL 5177285, at *3 (D. Md. Dec. 18, 2009); Ford v. Harvey, 106 F. App’x 397, 399 (6th Cir. 2004); Montanye v. Haymes, 427 U.S. 236, 242 (1976); Sheehan v. Beyer, 51 F.3d 1170, 1174 (3d Cir. 1995) (“An inmate does not have a right to be placed in the cell of his choice.”); Hewitt v. Helms, 459 U.S. 460, 468 (1983) (“[T]he transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.”).
Tellingly, Plaintiffs cite no authority––not the disability rights statutes themselves, nor the regulations, nor any case law––to support their apparent argument that they had a right protected by the ADA and the Rehab Act to be in a single cell. Thus, to maintain the instant claim, plaintiffs must demonstrate that their cell assignments somehow denied them access to services and programs. Plaintiffs do not even attempt to do this; instead, they simply insist that the Department was required to single cell them because the “medical contractor” had “ordered” it. Pls’ Mem. at 42. Plaintiffs allege that, under the Department’s “standards,” the “medical contractor was authorized to decide who should be single celled as a disability modification and that this decision should not be overridden by non-medical staff.” Pls’ Mem. at 43. In fact, as demonstrated in defendants’ motion for summary judgment, ECF 178 at 3-5, numerous plaintiffs have been single celled over significant portions of their incarcerations. Moreover, the witnesses, including the 30(b)(6) deponents also testified that the determination whether to single-cell was “a clinical decision for the most part,” See EXHIBIT 38, Transcript of Deposition of Denise Gelsinger (“Gelsinger Dep.”) 183 (emphasis added), and that an inmate should be single celled “if
33

single cells are available and a single cell has been deemed by medical.” Reid Dep. 124 (emphasis added).
As she explained in her deposition, then-Commissioner Corcoran, who, “[s]ubject to the authority vested in the Secretary by law, . . . [was] in charge of the [DOC] and its units,” Corr. Servs. 3-203(a), determined that the policy of single-celling blind inmates should be examined in light of the limited availability of cells and her belief that “sometimes it can be helpful to have another person in the cell” and that, with regard to blind inmates, it could be “more safe for them to be double celled.” See EXHIBIT 39, Transcript of Deposition of Dayena Corcoran (“Corcoran Dep.”) 217. See also EXHIBIT 40, Transcript of the Deposition of Stephen Moyer (“Moyer Dep.”) 70 – 71 (noting that it can be safer for inmates to be double-celled since cellmates can obtain assistance for each other in the event of an emergency); Reid Dep. 127 (“There is [a] large amount[] of information out there that says being single celled is not necessarily a good thing as far as for your mental health”). See also 28 C.F.R. § 35.152(b)(2) (requiring that “inmates or detainees with disabilities [be] housed in the most integrated setting appropriate to the [their] needs”). The Department was free to modify its housing policy and plaintiffs have utterly failed to demonstrate that, by doing so, it violated the Rehab Act or ADA. Nor have the plaintiffs even established that the Department violated its standards for celling inmates. And even if they had done so, plaintiffs would still not be entitled to summary judgment, because “the relevant inquiry is whether [the public entity] violated the ADA or Section 504 of the Rehabilitation Act, not whether [it] followed its internal policies.”
34

Shaikh v. Lincoln Mem’l Univ., 608 F. App'x 349, 355 (6th Cir. 2015). Accordingly, this Court should deny plaintiffs’ motion for summary judgment.
G. Denied Accommodations to Independently Navigate the Prison Facility Plaintiffs are not entitled to summary judgment on their claim that they were discriminated against by not being allowed to navigate the prison facilities independently. Their primary complaint is with the “walker program,” through which they were assigned a paid inmate to serve as a guide and escort throughout the facility, which they argue deprived them of the independence enjoyed by sighted inmates, Am. Compl. ¶¶ 60-62, and “forced” them to rely upon “untrained, unvetted, and at times abusive sighted inmates,” and thus violated the ADA and Department policy. Pl. Memo., p. 41. This is plainly false. First, plaintiffs erroneously base this claim on the belief that they are entitled to “an equal opportunity to navigate their facilities safely.” Pl. Memo. p. 42. However, “navigation” around a facility is not a program, service, or benefit protected by the ADA or Rehab Act, see 29 U.S.C.A. § 794 (b), but rather a means to enable inmates to engage in and benefit from a facility’s programs and services. Thus, contrary to their argument, they have no right to accommodations to enable independent navigation, so long as they are able to get to the programs and services they are entitled to access. Nonetheless, plaintiffs were in fact provided with canes to assist their ambulation, as well as training on use of a cane. See, e.g., James Dep. 81-82 (James started using a cane in 2011 and presently uses it); Snead Dep. 17-19 (Snead uses a cane to walk within the facility); Hopkins 24-24 (during his incarceration, Hopkins was able to move within the institution using a cane);
35

See EXHIBIT 41, Transcript of the Deposition of Tyrell Polley (“Polley Dep.”) 78 (Polley was provided a cane while confined at RCI). See also Delano Dep. 25, 37-38 (he was provided a cane, but returned it because he did not need it); Wilson Dep. (Wilson uses a cane to walk not as a result of vision issues but due to a foot injury); Hammond Dep. 81 (Hammond did not have a cane while he was at RCI, and did not ask for one); Reid Dep. 187 (when visually impaired inmates are provided a cane, the medical department “will teach them how to use the cane”).
Second, the walker program is a reasonable accommodation as a matter of law. In fact, it is well-settled that providing another individual, including an inmate, to serve as a walker or escort is reasonable and appropriate under the ADA and Rehab Act. See Allen v. Carrington, No. C/A 4:07-797 DCN, 2009 WL 2877557, at *6 (D.S.C. Aug. 28, 2009) (holding that where prison assigned another inmate “to assist Plaintiff with getting to and from the cafeteria and carrying his tray and whatever other needs he may have as a result of his eyesight,” the prison “provide[d] Plaintiff with reasonable accommodations to participate in the day-to-day operations of the prison” in compliance with the ADA and Rehab Act), aff’d, 372 F. App’x 390 (4th Cir. 2010); Mason, 559 F.3d at 887 (dismissing ADA claim where plaintiff had another inmate serve as a facility escort, despite the escort’s sporadic unavailability); Colon v. New York State Dep’t of Corr. & Cmty. Supervision, No. 15-CV-7432 (NSR), 2017 WL 4157372, at *7 (S.D.N.Y. Sept. 15, 2017) at *7 (holding it reasonable for inmates and staff to escort blind inmates even where plaintiff was attacked and injured during one such escort); Havens, 897 F.3d at 1269 (holding plaintiff’s access to prison facility meaningful where he was able to travel around the facility with the
36

assistance of staff); Cf. Williams v. Illinois Dep't of Corr., No. 97 C 3475, 1999 WL 1068669, at *8 (N.D. Ill. Nov. 17, 1999) (holding that a prison facility must provide “navigational assistance,” including “the use of other prisoners” to a blind inmate to comply with the ADA and Rehab Act). Plaintiffs’ motion must therefore be denied because the defendants’ walker program was a reasonable accommodation as a matter of law.
Third, plaintiffs’ reliance upon American Council of the Blind v. Paulson, 525 F.3d 1256, 1269 (D.C. Cir. 2008), and Wright v. New York State Dep’t of Corr., 831 F.3d 64, 74 (2d Cir. 2016), is misplaced. They claim these cases hold that an accommodation that involves reliance “upon the cooperation of other inmates is ineffective.” Pl. Memo. p. 41. Plaintiffs are wrong. First, the court in American Council was not considering the reasonableness of accommodations within a prison setting, but within the greater general public, as that case dealt with the accessibility of the U.S. paper currency system. American Council, 525 F.3d 1256. Moreover, the court took issue with the currency system because it required visually impaired individuals to rely upon “the kindness of strangers” in order to perform basic functions such as grocery shopping. Id. at 1269. By contrast, the walker program does not force plaintiffs to rely upon the “kindness of strangers,” but upon the paid actions of hired and screened individuals, for whom there is a consequence for nonperformance or mistreatment. See Miller Dep. 304:1-6 (“If an inmate walker is extorting them, there are a number of avenues that they can -- to complain about that.”); Gelsinger Dep. 200:2-5 (identifying avenues for inmate to report a problem with walker).
Similarly, although Wright was a prison case, the court based its decision that the “mobility assistance program” was ineffective on the fact that a disabled inmate had to
37

request assistance far in advance and thus had no means to obtain assistance for any spontaneous need, such as using the restroom. Wright, 831 F.3d at 74. By contrast, plaintiffs here do not request use of their walkers far in advance, but have access to their walkers at their request. See Defs.’ Mem. Supp. Sum. Jud. (ECF 178) at 48-49 (citing deposition testimony of the plaintiffs regarding walkers). Thus, contrary to plaintiffs’ argument, the evidence does not demonstrate that they were prevented from participating in any programs or services as a result of the Department’s use of a blind escort program.
Fourth, not only is the walker program permissible under the law, it does not violate Department policy, as plaintiffs erroneously claim. Plaintiffs base this claim on the Department policy stating that inmates, for their own safety, should not accept gifts or favors from other inmates because it can make them vulnerable to abuse. Pl. Memo. p. 41. However, Warden Miller unequivocally distinguished the use of inmate walkers from situations where inmates accept gifts and favors from each other, because walkers are screened for the position, paid, and monitored by staff, so they do not result in the same vulnerabilities. Miller Dep. 301:9 – 302:2, 303:9 – 304:6 (“[T]he inmates who have walkers, they’re not indebted to [other inmates]. The inmate walker is being paid. The inmate walker is being monitored. If an inmate walker is extorting them, there are a number of avenues that they can -- to complain about that.” Miller Dep. 304:1-6).
Additionally, plaintiffs’ unsupported claim that walkers are not “vetted” is contradicted by record evidence that they must in fact pass a minimum of two levels of screening. First, inmate walkers are screened by security staff to ensure they are capable of walking around the facility, and to exclude any inmates that may be inclined to take
38

advantage of a blind or visually impaired inmate. Reid Dep. 217:1-8. Inmates are then screened by case management, who focus on excluding inmates who have committed sex offenses or other crimes involving vulnerable victims,17 or who have gang or other threat group associations. Reid Dep. 219:7 – 220:10. Moreover, case management seeks to identify inmates who are empathetic and avoid conflicts with other inmates to serve as walkers. Reid Dep. 217:6-18, 219:7 – 220:10.
Although plaintiffs claim their walkers were “at times abusive,” the record evidence establishes that where there were alleged instances of abuse, they were isolated to particular walkers, and thus do not pose a challenge to the walker program as a whole. For instance, plaintiff Hammond is the only inmate who claims to have suffered an injury – bruising – as a result of an assault by a walker, who was also his cellmate at the time. Hammond Dep. 17-18, 21. However, Mr. Hammond did not report the abuse to any Department staff until sometime later, and when he did, the cellmate was transferred out of Mr. Hammond’s cell. Hammond Dep. 19-20. Mr. Hammond was assigned another escort and he had no issues with this escort. Hammond Dep. 68-69.
The remaining plaintiffs were not assaulted by their walkers, and generally testified that their walkers were effective at assisting their navigation around the facility. See Brown
17 Maureen Reid, one of the Department’s Rule 30(b)(6) witnesses, testified that although the requirement that an inmate not have a sex offense conviction was added in 2018, prior to this, inmates were still screened to exclude those who committed crimes involving vulnerable victims. Reid Dep. 219:11-220:10. Plaintiffs offer no authority whatsoever that the absence of this requirement is a per se violation of the law, or even that any plaintiff was harmed by an inmate with a sex offense conviction.
39

Dep. 40-41, 42-43, 43-47, 48-49 (noting one walker helped him get to the dining hall and would read to him, one drank alcohol but did not harm him, another sold drugs but did not harm him, and another was effective at escorting but did not read to him); Delano Dep. 225 (stating that his walkers did jobs for him, and that at worst, he had a few disagreements with them); Holley Dep. 69, 95-97, 98 (stating that he had a close bond with, and trusted, one walker, and that another he had verbal disagreements with on occasion, which never got physical); James Dep. 56-57, 59-60, 62 (stating that one walker was helpful for navigating the facility, and after another walker rubbed up against him, he was replaced); Polley Dep. 66 (noting that his walker was helpful and did not assault him or charge him money for services); Snead Dep. 140-1 (stating that his only complaint against his walkers were they were sometimes slow to respond); Wilson Dep. 38 (stating that he never had any issues with his walkers). On this claim, as on all their other claims, plaintiffs cannot meet the deliberate indifference standard, because there is no record evidence, let alone record evidence beyond genuine dispute, of “knowledge that a harm to a federally protected right [was] substantially likely,’ and (2) ‘a failure to act upon that . . . likelihood.” Havens, 897 F.3d at 1264 (quotation omitted). Accordingly, this Court should deny plaintiffs’ motion for summary judgment.
CONCLUSION Plaintiffs’ partial motion for summary judgment should be dismissed in its entirety.
Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland
40

__________/s/__________________ LISA O. ARNQUIST Bar No. 25338 MICHAEL O. DOYLE Bar No. 11291 Assistant Attorneys General Department of Public Safety & Correctional Services 300 E. Joppa Road, Suite 1000 Towson, Maryland 21286 (410) 339-7568 (410) 764-5366 (facsimile) lisa.arnquist@maryland.gov michaelo.doyle@maryland.gov Attorneys for Defendants
41

 
 Case 1:16-cv-00945-RDB Document 100-1 Filed 01/10/19 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ANTHONY BLUE STEVEN BROWN WILBERT DELANO GREGORY HAMMOND SEDRIC HOLLEY RUSSELL HOPKINS JOHNNIE JAMES TYRELL POLLEY MAYNARD SNEED ROBERT WILSON,
Plaintiffs,

*
*
*
*
*
* Civil Action No. RDB-16-945
*

v.

*

DEPARTMENT OF PUBLIC SAFETY AND *

CORRECTIONAL SERVICES

STEPHEN MOYER

*

DAYENA M. CORCORAN

RICHARD MILLER,

*

Defendants.

*

* * * * * * * * * * * * * * * * * *

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT

Case 1:16-cv-00945-RDB Document 100-1 Filed 01/10/19 Page 2 of 36
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION ...........................................................................................................................1 SUMMARY OF THE AMENDED COMPLAINT.........................................................................1 LEGAL STANDARD......................................................................................................................3 ARGUMENT ...................................................................................................................................4
I. PLAINTIFFS HAVE FAILED TO STATE ANY PLAUSIBLE CLAIMS FOR RELIEF UNDER § 1983 AGAINST SECRETARY MOYER, COMMISSIONER CORCORAN, OR WARDEN MILLER..................................................................................................................4 A. Plaintiffs Have Failed to Allege That Defendants Were Personally Involved in Any Deprivations of Plaintiffs’ Constitutional Rights................................4 B. Plaintiffs Have Failed to Allege a Plausible Claim of a Denial of Access to the Courts. ..................................................................................................................6 C. Plaintiffs Have Failed to Allege a Plausible Claim of Deliberate Indifference Under the Eighth or Fourteenth Amendments...........................................9 D. Defendants Are Entitled to Qualified Immunity from Plaintiffs’ Constitutional Claims...................................................................................................13
II. PLAINTIFFS HAVE FAILED TO STATE ANY PLAUSIBLE CLAIMS FOR RELIEF UNDER THE ADA................................................................................................................15 A. Plaintiffs’ ADA Claim Is Barred by the Eleventh Amendment. ..................................15 B. Plaintiffs Have Failed to State an ADA Claim.............................................................16
III. PLAINTIFFS HAVE FAILED TO STATE ANY PLAUSIBLE CLAIMS FOR RELIEF UNDER § 504 OF THE REHABILITATION ACT........................................................................16 A. Denied “Private, Independent, and Effective Access” to Inmate Handbook and Orientation Materials...........................................................................18 B. Denied Ability to Read and Draft Grievances and Lawsuits “Privately and Independently.” .....................................................................................................20 C. Denied Ability to “Read and Write Mail Privately and Independently.” .....................22 D. Denied Access to Unspecified Work and Educational Programs. ...............................23 E. Denied Opportunity to Navigate the Prison Without Escort........................................25 F. Denied Single Celling and Housing Status of Their Choosing....................................26
CONCLUSION ..............................................................................................................................28
ii

Case 1:16-cv-00945-RDB Document 100-1 Filed 01/10/19 Page 3 of 36

TABLE OF AUTHORITIES

Pages

Cases

A Helping Hand, LLC v. Baltimore Cty., MD, 515 F.3d 356 (4th Cir. 2008) .....................................................................................................20

Adams v. Rice, 40 F.3d 72 (4th Cir. 1994) ..................................................................................................... 9-10

Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1995) ................................................................................................... 8-9

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ............................................................................................................16, 17

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................................................4, 6, 14, 16

Barnes v. Young, 565 F. App’x 272 (4th Cir. 2014) ..............................................................................................18

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ..........................................................................................................3, 4, 16

Booker v. S.C. Dep't of Corr., 855 F.3d 533 (4th Cir. 2017) .......................................................................................................9

Brice v. Va. Beach Corr. Center, 58 F.3d 101 (4th Cir. 1995) ............................................................................................ 13-14, 16

Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009) .....................................................................................................24

Brockington v. Boykins, 637 F.3d 503 (4th Cir. 2011).....................................................................................................16

Bounds v. Smith, 430 U.S. 817 (1977) ..............................................................................................................7, 28

Carter v. Mandel, 573 F.2d 172 (4th Cir. 1978) .......................................................................................................9

Chase v. O’Malley, 466 F. App’x 185 (4th Cir. 2012) .............................................................................................26

iii

Case 1:16-cv-00945-RDB Document 100-1 Filed 01/10/19 Page 4 of 36
City & Cty. of San Francisco, Calif. v. Sheehan, 135 S.Ct. 1765 (2015) ...............................................................................................................17
Cochran v. Morris, 73 F.3d 1310 (4th Cir. 1996) .....................................................................................................22
Colon v. New York State Dep’t of Corr. & Cmty. Supervision, No. 15-Civ-7432 (NSR), 2017 WL 4157372 (S.D.N.Y. Sept. 15, 2017)............................22, 29
County of Sacramento v. Lewis, 523 U.S. 833 (1998) ..................................................................................................................10
Danser v. Stansberry, 772 F.3d 340 (4th Cir. 2014) ......................................................................................................11
Dee v. Maryland Nat. Capitol Park & Planning Comm’n, Civ. CBD-09-491, 2010 WL 3245332 (D. Md. Aug. 16, 2010).................................... 20-21, 23
DeMallory v. Cullen, 855 F.2d 442 (7th Cir.1988) ........................................................................................................9
Doe v. Univ. of Maryland Med. Sys. Corp., 50 F.3d 1261 (4th Cir. 1995) .........................................................................................18, 27, 28
Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2013) ............................................................................................... 5, 6-7
Farmer v. Brennan, 511 U.S. 825 (1994) ......................................................................................................11, 13, 14
Ford v. Harvey, 106 F. App’x 397 (6th Cir. 2004) .............................................................................................31
Hall v. Maryland, 433 F.Supp. 756 (D. Md. 1977) ..................................................................................................9
Harlow v. Fitzgerald, 457 U.S. 800 (1982) ..................................................................................................................15
Havens v. Colorado Dep’t of Corr., 897 F.3d 1250 (10th Cir. 2018) ............................................................................... 23-24, 29, 30
Hewitt v. Helms, 459 U.S. 460 (1983) ..................................................................................................................31
Hope v. Pelzer, 536 U.S. 730 (2002) ............................................................................................................15, 16
iv

Case 1:16-cv-00945-RDB Document 100-1 Filed 01/10/19 Page 5 of 36
Huber v. Howard Cty., Md., 849 F. Supp. 407 (D. Md. 1994) ...............................................................................................19
Jackson v. Lightsey, 775 F.3d 170 (4th Cir. 2014).....................................................................................................13
Jarboe v. Maryland Dep’t of Pub. Safety & Corr. Servs., No. Civ.A. ELH-12-572, 2013 WL 1010357 (D. Md. Mar. 13, 2013) ...............................19, 20
Jones v. Bishop, No. CV CCB-16-2893, 2018 WL 1521874 (D. Md. Mar. 28, 2018)........................................26
Jones v. Chandrasuwan, 820 F.3d 685 (4th Cir. 2016).....................................................................................................15
Knapp v. Northwestern Univ., 101 F.3d 473 (7th Cir. 1996).....................................................................................................27
Koenig v. Maryland, No. Civ.A. CCB-09-3488, 2010 WL 148706 (D. Md. Jan. 13, 2010) ......................................19
Kogut v. Ashe, 592 F. Supp. 2d 204 (D. Mass. 2008) .......................................................................................28
Levy v. Mote, 104 F. Supp. 2d 538 (D. Md. 2000) ..........................................................................................25
Lewis v. Casey, 518 U.S. 343 (1996) ................................................................................................................7, 9
Lopez v. Kirkpatrick, 505 F. App’x 58 (2d Cir. 2012).................................................................................................26
Love v. Westville Corr. Ctr., 103 F.3d 558 (7th Cir. 1996).....................................................................................................30
Makdessi v. Fields, 789 F.3d 126 (4th Cir. 2015)......................................................................................... 10-11, 14
Malley v. Briggs, 475 U.S. 335 (1986) ..................................................................................................................18
Mann v. Adams, 855 F.2d 639 (9th Cir. 1988) .......................................................................................................8
Mason v. Corr. Med. Servs., Inc., 559 F.3d 880 (8th Cir. 2009) ...............................................................................................24, 29
v

Case 1:16-cv-00945-RDB Document 100-1 Filed 01/10/19 Page 6 of 36
Mathews v. Eldridge, 24 U.S. 319 (1976) ....................................................................................................................10
McCleary-Evans v. Maryland Dep’t of Transp., State Highway Admin., 780 F.3d 582 (4th Cir. 2015) .......................................................................................................4
Miller v. Hinton, 288 F. App’x 901 (4th Cir. 2008) ..............................................................................................24
Mims v. Williams, No. 1:08CV521-01-MU, 2009 WL 454598 (W.D.N.C. Feb. 23, 2009)......................................8
Monell v. Dept. of Social Services, 436 U.S. 658 (1978) ....................................................................................................................5
Montanye v. Haymes, 427 U.S. 236 (1976) ..................................................................................................................31
Muhammad v. Kaloroumakis, No. Civ. CCB-14-1794, 2015 WL 1712594 (D. Md. Apr. 14, 2015) .......................................28
Owens v. Lott, 372 F.3d 267 (4th Cir. 2004).....................................................................................................16
Paulone v. City of Frederick, 787 F. Supp. 2d 360 (D. Md. 2011)...........................................................................................20
Pearson v. Callahan, 555 U.S. 223 (2009) ......................................................................................................15, 16, 17
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).....................................................................................................................14
Pevia v. Comm'r of Corr., No. CV ELH-17-0273, 2018 WL 4052244 (D. Md. Aug. 24, 2018) ..........................................8
Quern v. Jordan, 440 U.S. 332 (1979)...................................................................................................................14
Raynor v. Pugh, 817 F.3d 123 (4th Cir. 2016) ................................................................................................11, 13
Rich v. Bruce, 129 F.3d 336 (4th Cir. 1997) ......................................................................................................11
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292 (4th Cir. 2006).....................................................................................................15
vi

Case 1:16-cv-00945-RDB Document 100-1 Filed 01/10/19 Page 7 of 36
Rochin v. California, 342 U.S. 165 (1952)...................................................................................................................10
Ruefly v. Landon, 825 F.2d 792 (4th Cir. 1987) ......................................................................................................11
Savko v. Rollins, 749 F. Supp. 1403 (D. Md. 1990) ...............................................................................................8
Seremeth v. Bd. of Cty. Comm'rs Frederick Cty., 673 F.3d 333 (4th Cir. 2012) .....................................................................................................18
Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994))........................................................................................................5
Sheehan v. Beyer, 51 F.3d 1170 (3d Cir. 1995)......................................................................................................31
Spencer v. Earley, 278 F. App’x 254 (4th Cir. 2008) ..............................................................................................18
Spivey v. Dep’t of Pub. Safety & Corr. Servs., No. Civ. JFM-09-440, 2009 WL 5177285 (D. Md. Dec. 18, 2009) .........................................31
Strickler v. Waters, 989 F.2d 1375 (4th Cir.1993) .............................................................................................. 7-8, 9
Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995).....................................................................................................30
United States v. Georgia, 546 U.S. 151 (2006) ..................................................................................................................18
Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir. 1977) .......................................................................................................5
Wells v. Thaler, 460 F. App’x 303 (5th Cir. 2012) ........................................................................................24, 26
Whitley v. Albers, 417 U.S. 312 (1986)...................................................................................................................11
Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) .............................................................................................................. 17-18
Wilson v. Layne, 526 U.S. 603 (1999) ..................................................................................................................16
vii

Case 1:16-cv-00945-RDB Document 100-1 Filed 01/10/19 Page 8 of 36 Statutes & Rules
29 U.S.C. § 794..............................................................................................................1, 18, 19, 20 (Rehabilitation Act, Section 504)
34 C.F.R. § Pt. 104, App. A, subpt. A(5).......................................................................................27 42 U.S.C § 1983.....................................................................................................................1, 4, 14 42 U.S.C. § 12103........................................................................................................ 20, 23, 25-26 42 U.S.C. §§ 12131-12165, 12201-12213 .....................................................................1, 17, 18, 19
(Americans with Disabilities Act, Title II) Fed. R. Civ. P. 12(b)(6) ................................................................................................................1, 3 Md. Code Ann., State Gov’t §§ 12-103(2), 104(a)(1) ...................................................................14
viii

Case 1:16-cv-00945-RDB Document 100-1 Filed 01/10/19 Page 9 of 36
INTRODUCTION Plaintiffs, who identify themselves as current and former inmates of the Maryland Division of Correction (“DOC”) who are blind, have filed a four-count First Amended Complaint (“complaint”) (ECF No. 23) in which, among other claims, they seek to hold senior officials of the Department of Public Safety and Correctional Services (“the Department”) personally liable for purportedly denying plaintiffs’ constitutional rights. The named individual defendants in plaintiffs’ complaint are Stephen Moyer, the Secretary of Public Safety and Correctional Services; Dayena Corcoran, the former Commissioner of Correction; and Richard Miller, the former warden of the Roxbury Correctional Institution (“RCI”), an institution of the DOC. Plaintiffs bring suit under 42 U.S.C § 1983 against the individual defendants in their individual and official capacities for alleged violations of the First, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiffs have also sued the Department and Secretary Moyer under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12165, 12201-12213, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehab Act”). Defendants now move to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that plaintiffs have failed to state any plausible claim under § 1983, the ADA, or the Rehab Act.
SUMMARY OF THE AMENDED COMPLAINT In their First Amendment claims, plaintiffs allege that defendants deprived them of their constitutional right of access to courts by failing to provide them copies of the DOC Inmate Handbook; “orientation materials”; and grievance and complaint forms in “accessible” format, a result of which is that they “must rely on sighted inmates to help them.” Am. Compl. ¶¶ 3-5. They also allege that because they have been denied unidentified “auxiliary aids or services,” they are unable to “access the [prison] library’s research materials independently and privately,” id., ¶ 36, and thus “are forced to rely on sighted inmates to . . . conduct their legal research for them.” Id.
1

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While acknowledging that they have “pursu[ed] legal action with the help of sighted inmates,” plaintiffs allege that “they have no way of verifying that the information they intend to submit” is accurate, complete, or contains proper citations to authority. Id. ¶ 38. They also allege that their reliance on sighted inmates to assist them has exposed them to unspecified threats of “extortion, sexual exploitation, and violence,” id. ¶ 39, and that they have had “grievances and lawsuits,” which they do not identify, “dismissed due to mistakes by sighted inmates” Id. ¶ 41.
In their Eighth Amendment claims, plaintiffs allege that defendants exposed them to “serious risk of harm” by declining to confine them in single-cells and by having sighted inmates escort them to the dining hall, library, and other areas of the institution where they participate in vocational and institutional programming. Am. Compl. ¶¶ 91-92. Plaintiffs allege without factual elaboration that, as a result of being celled with other inmates, they have suffered “serious harm, including physical and sexual abuse, extortion, disruption of their relationships with their loved ones, and severe anxiety and emotional distress.” Am. Compl. ¶ 93. Plaintiffs make similar generalized allegations regarding RCI’s program of having sighted inmates, known as “walkers,” “guide blind inmates through the facilities,” id. ¶ 61. Plaintiffs complain that “[b]y facilitating dependence on other inmates, the walker program . . . exposes Plaintiffs to a substantial risk of extortion, exploitation, and violence.” Id. ¶ 63.
In their ADA and Rehab Act claims, plaintiffs assert that the vocational, educational, and work release programs provided to sighted inmates are not “equally available to Plaintiffs.” Am. Compl. ¶¶ 53, 59. In particular, plaintiffs state that “[i]nmates within [the Department] may earn diminution credits and wages through work assignments,” id. ¶ 48, and allege that “Defendants have denied Plaintiffs placement in or removed them from certain jobs,” which plaintiffs do not identify, “based on unfounded safety concerns and stereotypes about the capabilities of blind
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individuals.” Am. Compl. ¶ 49. Further, plaintiffs allege that they have been denied private, independent, and effective access to the Inmate Handbook, “orientation materials,” mail service, the grievance process and courts, and the opportunity to navigate the prison without escort, despite being provided assistance with all of these “services” from other inmates. Am. Compl. ¶¶ 3, 3340, 68-70, 48-50, 60-62. And they allege that they have been denied single-cell housing and the housing status of their choosing. Am. Compl. ¶¶ 74-76.
LEGAL STANDARD A motion made under Rule 12(b)(6) allows a complaint to be dismissed for failure to state a claim upon which relief can be granted. Indeed, a complaint must be dismissed if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under the plausibility standard, a complaint must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Rather, the complaint must be supported by factual allegations that “raise a right to relief above the speculative level.” Id. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to plead a claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See McCleary-Evans v. Maryland Dep’t of Transp., State Highway Admin., 780 F.3d 582, 587 (4th Cir. 2015) (“[T]he Supreme Court has, with Iqbal and Twombly, rejected the sufficiency of complaints that merely allege the possibility of entitlement to relief, requiring plausibility for obtaining such relief and thus rejecting a complaint in which the plaintiff relies on speculation.”), cert. denied, 136 S. Ct. 1162 (2016). For the reasons set forth below, plaintiffs’ complaint fails to plead with sufficiency any of their claims, and therefore should be dismissed in its entirety.
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ARGUMENT

I.

PLAINTIFFS HAVE FAILED TO STATE ANY PLAUSIBLE CLAIMS FOR RELIEF UNDER §

1983 AGAINST SECRETARY MOYER, COMMISSIONER CORCORAN, OR WARDEN MILLER.

A. Plaintiffs Have Failed to Allege That Defendants Were Personally Involved in Any Deprivations of Plaintiffs’ Constitutional Rights.
Plaintiffs’ complaint contains no plausible claims against the individual defendants for violating plaintiffs’ First Amendment right of access to courts or their right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments. First, plaintiffs have alleged no facts whatsoever of personal involvement by any defendant in the alleged unconstitutional conduct. It is well settled that liability under 42 U.S.C. § 1983 must be premised on personal conduct of the defendant and cannot rest on a theory of respondeat superior or any other type of vicarious liability. Monell v. Department of Soc. Servs., 436 U.S. 658, 691–695 (1978). See also Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (for liability to arise under § 1983, state official must have acted personally to cause a deprivation of constitutional rights).
Absent an allegation of direct involvement by a supervisor in causing an injury, a supervisor may be held liable only if the plaintiff demonstrates that: (1) the supervisor had “knowledge that his subordinate was engaged in conduct that posed a ‘pervasive and unreasonable risk’ of constitutional injury” to plaintiff; (2) the supervisor’s response “was so inadequate as to show ‘deliberate indifference to or tacit authorization of’” the alleged conduct; and (3) “‘an affirmative causal link’ between the supervisor’s inaction” and the plaintiff’s injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations omitted).
Plaintiffs have failed to meet this rigorous standard. “[T]he Supreme Court explained in Iqbal that ‘a supervisor’s mere knowledge’ that his subordinates are engaged in unconstitutional

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conduct is insufficient to give rise to liability; instead a supervisor can only be held liable for ‘his or her own misconduct.’” Evans v. Chalmers, 703 F.3d 636, 660-61 (4th Cir. 2013) (quoting Iqbal, 556 U.S. at 677). Thus, “‘a plaintiff must plead that each [supervisory] defendant, through the official’s own individual actions, has violated the Constitution.’” Chalmers, 703 F.3d at 661 (quoting Iqbal, 556 U.S. at 676). Plaintiffs have not done so. Nearly all of the references to the individual parties are contained in the “Parties, Jurisdiction, and Venue” section of the complaint, which merely identifies the defendants as supervisors and alleges, in conclusory fashion, that they were “aware of . . . policies and practices regarding blind inmates,” and “the requirements of federal law . . . .” Am. Compl. ¶¶ 23, 24, 25. Glaringly absent are any allegations that any particular defendant caused injury to any particular plaintiff.
Nor are there factual allegations in the numbered counts themselves indicating how any defendant personally violated any plaintiff’s constitutional rights. The sole reference to any individual defendant in the counts of the complaint is plaintiffs’ statement that they told Warden Miller that “their dependence on sighted inmates to access the grievance and court processes puts them in danger.” Am. Compl. ¶ 46. This conclusory statement, made without any supporting factual assertions whatsoever, falls far short of pleading Warden Miller’s personal involvement in any unconstitutional acts.
Plaintiffs have failed to allege any facts demonstrating that Secretary Moyer, Commissioner Corcoran, or Warden Miller had even “mere knowledge” that any subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to plaintiffs, let alone that they were indifferent to or tacitly approved it. To allow Plaintiffs to proceed with the threadbare assertion that defendants were “aware” of “policies and practices” and the requirements of the law, Am. Compl. ¶¶ 23, 24, 25, would inappropriately burden defendants with having to defend against claims bereft
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of any specific alleged conduct relating to any individual party. See Iqbal, 556 U.S. at 685 (“If a Government official is to devote time to his or her duties . . . it is counterproductive to require the substantial diversion that is attendant to participating in litigation and making informed decisions as to how it should proceed. Litigation . . . exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that might otherwise be directed to the proper execution of the work of the Government.”); Chalmers, 703 F.3d at 665 (dismissing insufficient pleadings because allowing them “to proceed would let litigation loose in such a fashion as to impair the ability of the criminal justice system to do its job. . . . That is to say, individuals would be pulled into the coercive proceedings of courts when they have no business being there.”). Accordingly, plaintiffs’ claims against the individual defendants should be dismissed.
B. Plaintiffs Have Failed to Allege a Plausible Claim of a Denial of Access to the Courts.
Plaintiffs have also failed to allege facts demonstrating that they have been denied access to the courts in contravention of the First Amendment. As noted above, plaintiffs’ claim is premised on the defendants’ alleged failure to “make reasonable modifications and/or provide auxiliary aids and services to make the grievance process, courts, and library accessible to Plaintiffs,” Am. Compl. ¶ 87, but plaintiffs overstate their denial of access to courts claim. In Bounds v. Smith, 430 U.S. 817, 825 (1977), the Court held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” The Constitution “does not guarantee inmates the wherewithal to transform themselves into litigating engines,” but rather gives them the “tools . . . to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.” Lewis v. Casey, 518 U.S. 343, 355 (1996).
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As the Fourth Circuit has noted, the Court in Bounds “did not hold that there is a right of access to a law library; it held that there is a right of access to the courts.” Strickler v. Waters, 989 F.2d 1375, 1385 (4th Cir.1993). Thus, “[i]t does not inexorably follow from the fact that an institution’s library is inadequate or that access to that library is restricted . . . that the prisoner was denied access to the courts.” Id.; see also Mims v. Williams, No. 1:08CV521-01-MU, 2009 WL 454598, at *1 (W.D.N.C. Feb. 23, 2009) (rejecting access-to-courts claim based on lack of prison law library because prison had a legal-services program that “provides inmates with the constitutionally mandated level of assistance necessary to protect their meaningful access to the court”).
For Maryland prisoners, access to courts is established by “the array of services provided by the Office of the Public Defender and the Prisoner Assistance Program of the Legal Aid Bureau,” see Savko v. Rollins, 749 F. Supp. 1403, 1408 (D. Md. 1990), which has been succeeded by the Prisoner Rights Information System of Maryland (“PRISM”), and by the law libraries and the Library Assistance to State Inmates (“LASI”) program. See Pevia v. Commissioner of Corr., No. CV ELH-17-0273, 2018 WL 4052244, at *12 n.10 (D. Md. Aug. 24, 2018) (“This [C]ourt has found that the combination of services provided to [DOC] prisoners through private contract with outside agencies such as . . . . PRISM, the Office of the Public Defender, and LASI, is sufficient to ensure their right of access to the courts.”). Nowhere in the complaint do plaintiffs even allege that they are unable to access the assistance provided by the Office of the Public Defender, Legal Aid Bureau, PRISM, or LASI, or that such assistance is in any way inadequate.
Similarly, there is no “fundamental” right to an institutional inmate complaint resolution process, see Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994), and alleged defects in an inmate grievance system do not violate the Constitution.
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Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1995) (prisoner’s allegation that jail grievance procedures were inadequate to redress his grievances did not state claim for violation of due process). See also Booker v. South Carolina Dep’t of Corr., 855 F.3d 533, 541 (4th Cir. 2017) (“[I]inmates have no constitutional entitlement or due process interest in access to a grievance procedure.”). Thus, when viewed under the proper legal standard for assessing a prisoner’s access to courts claim, plaintiffs’ allegations do not pass the plausibility test.
Just as importantly, plaintiffs have failed to plausibly allege facts satisfying the second component of a denial of access to courts claim: “actual injury.” See Lewis, 518 U.S. at 352-54. To prevail, a prisoner must demonstrate that the actions of prison officials “hindered his efforts to pursue” a constitutionally protected legal claim. Id. at 351. Absent a showing of such actual injury caused by the conduct of prison officials, such as the dismissal of an action filed by the prisoner, there is no constitutional violation. Id.; see also Strickler, 989 F.2d at 1385 (“‘A demonstration of inability to present a legal claim is an essential ingredient . . . because the prisoner must be able to show that the rules interfered with his entitlement (access to the courts) rather than with a mere instrument for vindicating an entitlement (access to books).” (quoting DeMallory v. Cullen, 855 F.2d 442, 452 (7th Cir.1988) (Easterbrook, J., dissenting))).
Plaintiffs have alleged injury in only a summary and conclusory manner. See Am. Compl. ¶ 42 (alleging that “plaintiffs have been unable to effectively initiate or complete the grievance or court processes or communicate effectively with their attorneys,” and “have had their grievances and lawsuits dismissed due to the errors of the sighted inmates upon whom plaintiffs are forced to rely.”). This fails to meet the actual injury standard. Indeed, a cursory review of the docket demonstrates that plaintiffs have not been hampered at all in their abilities to file suit; in this consolidated action alone, numerous pro se suits were filed by the plaintiffs. Accordingly, this
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Court should dismiss plaintiffs’ First Amendment claims against the individual defendants in Count I of the complaint.
C. Plaintiffs Have Failed to Allege a Plausible Claim of Deliberate Indifference Under the Eighth or Fourteenth Amendments.
The complaint contains no plausible claims that Secretary Moyer, Commissioner Corcoran, or Warden Miller were deliberately indifferent to an alleged “substantial risk of serious harm” to any plaintiff. See Am. Compl. ¶ 93. As set forth below, plaintiffs have failed to meet any of the elements of a constitutional failure to protect claim. Accordingly, plaintiffs’ Eighth and Fourteenth Amendment claims should be dismissed.1
1. Elements of a Failure to Protect Claim. “[N]ot every injury suffered by a prisoner at the hands of another ‘translates into constitutional liability for prison officials responsible for the victim’s safety.’” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). To succeed on an Eighth Amendment failure-to-protect claim, a prisoner must prove that the defendant (i) had knowledge of a substantial risk of serious harm and (ii) acted with deliberate indifference, a criminal recklessness standard, to the prisoner’s safety. Farmer, 511 U.S. at 834.
1 Plaintiffs do not allege a substantive violation of the Fourteenth Amendment. Rather, they invoke the Fourteenth Amendment because it “incorporate[s] [the Eighth Amendment] against the states.” See Am. Compl. ¶ 91. To the extent plaintiffs have attempted to set forth a Fourteenth Amendment claim, their attempt is unsuccessful. To plead a Fourteenth Amendment due process violation, a plaintiff must (1) identify a private interest; (2) show a deprivation of that interest by the State; and (3) show that the private interest outweighs any countervailing governmental interest. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Plaintiffs have not met any of these requirements. Nor have plaintiffs successfully alleged a denial of substantive due process, because that requires plaintiffs to plausibly allege conduct of a governmental defendant so egregious that it “‘shocks the conscience’ and violates the decencies of civilized conduct.’” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (quoting Rochin v. California, 342 U.S. 165, 172-3 (1952)). No such facts are alleged against the defendants.
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Thus, a two-part inquiry that includes both an objective and a subjective component must be satisfied before liability can be established. See Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016). The objective inquiry asks whether the plaintiff “‘establish[ed] a serious deprivation of his rights in the form of a serious or significant physical or emotional injury,’ or a substantial risk thereof.” Id. (quoting Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014)). The subjective component requires a showing “that the prison official had a ‘sufficiently culpable state of mind,’ which . . . consists of ‘deliberate indifference to inmate health or safety.’” Raynor, 817 F.3d at 127 (quoting Farmer, 511 U.S. at 834). Under the subjective test, “actual knowledge of facts from which a reasonable person might have inferred the existence of the substantial and unique risk to [the prisoner] . . . is not enough to establish a violation of the Eighth Amendment,” because “the defendant official . . . must actually have drawn the inference.” Rich v. Bruce, 129 F.3d 336, 340 (4th Cir. 1997) (emphasis added). Negligence alone does not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. See Ruefly v. Landon, 825 F.2d 792, 793 (4th Cir. 1987); Whitley v. Albers, 475 U.S. 312, 319 (1986) (“It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the prohibited conduct.”).
2. Plaintiffs Have Failed to Meet the Objective Component of an Eighth Amendment Claim Because They Have Failed to Allege Facts Constituting a “Substantial” or “Excessive” Risk of Serious Harm.
The only risk plaintiffs allege is that “requiring blind inmates” to rely on sighted inmates for assistance “makes blind inmates vulnerable to exploitation, extortion, and violence,” Am. Compl. ¶ 93, but they provide no facts to support this allegation. Absent from the complaint are any particularized allegations that any plaintiff, or any other blind inmate, was ever harmed, or even threatened with harm, by another inmate who provided reading assistance to a blind inmate. Plaintiffs’ complaints about the walker program, by which sighted inmates guide blind inmates
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around the facility to afford them access to prison programs, suffers from a similar infirmity. Plaintiffs allege that they “have been threatened by their walkers when they asked the walkers to perform tasks the walkers did not want to do, or when they complained about their walkers’ behavior.” Id. at ¶ 63. Again, however, plaintiffs supply no factual support for these conclusory statements. Plaintiffs do not provide, for instance: the name of the plaintiff and other inmate allegedly involved; when the incident purportedly occurred; the nature of the alleged threat; whether the affected plaintiff suffered any injury; or whether the alleged occurrence was ever reported, and if so, to whom and in what manner.
Nor do plaintiffs allege any facts to render plausible their claims that the refusal to singlecell them leaves them “more vulnerable to theft and less able to forestall or defend against attacks,” or that their cellmates “may be provoked by their disability and behavior resulting from their disability, including bumping into a cellmate or a cellmate’s possessions or failing to notice and clean up a mess.” Am. Compl., ¶¶ 79, 80. No plaintiff alleges that he was ever attacked by a cell mate (or anyone else), or that any cell mate ever threatened a plaintiff, or even complained, when a plaintiff “bump[ed]” into a cell mate or the cell mate’s possession or made a “mess” in the cell and failed to clean it up. Plaintiffs’ speculative assertions, supported by no plausible factual allegations whatsoever, that certain harms “may” befall them fall far short of showing that they have been exposed to an “objectively intolerable risk” as required to state an Eighth Amendment claim. See Farmer, 511 U.S. at 846.
3. Plaintiffs Have Failed to Plausibly Allege That Any Defendant Was Deliberately Indifferent to any Risk of Serious Harm to Any Plaintiff.
Plaintiffs’ allegations also fail to meet the subjective component of the Eighth Amendment test, which requires not only “[a]ctual knowledge or awareness on the part of” the defendant to the substantial and excessive risk of harm to the prisoner, Brice v. Virginia Beach Corr. Ctr., 58 F.3d
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101, 105 (4th Cir. 1995), but also a showing that the official acted with “deliberate indifference.” Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). Plaintiffs allege no facts plausibly demonstrating that Secretary Moyer, Commissioner Corcoran, or Warden Miller had “actual knowledge” of any risk of harm to plaintiffs. As noted previously, the individual defendants are barely mentioned in the amended complaint, and the complaint is thus devoid of any facts demonstrating that a defendant was aware of a serious risk of harm to any plaintiff.
An injury or substantial risk “might be so obvious that the factfinder could conclude that the [correctional employee] did know of it because he could not have failed to know of it.” Brice, 58 F.3d at 105 (citations omitted). For instance, an official could be found to have actual knowledge if a “‘substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past,’” and an official “‘had been exposed to information concerning the risk and thus must have known about it.’” Makdessi, 789 F.3d at 133 (quoting Farmer, 511 U.S. at 842). Absent from plaintiffs’ complaint, however, are any factual allegations even remotely suggesting that there was such a pervasive and longstanding threat about which Secretary Moyer, Commissioner Corcoran, or Warden Miller must have known.
Plaintiffs’ Eighth Amendment claims thus contain no more than the very type of “un-adorned, the-defendant[s]-unlawfully-harmed-me accusation[s],” without any “factual enhancement,” that the Court cautioned against in Twombly and Iqbal. See Iqbal, 556 U.S. at 677. Because plaintiffs have failed to provide “factual content that allows the court to draw the reasonable inference that the defendant[s] [are] liable” under the Eighth Amendment, id. at 678, the Court should dismiss Count II of the complaint.2
2 To the extent plaintiffs’ § 1983 claims are brought against Secretary Moyer, Commissioner Corcoran, and Warden Miller in their official capacities, they fail for the additional reason that they are barred by the Eleventh Amendment to the United States Constitution. It is
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D. Defendants Are Entitled to Qualified Immunity from Plaintiffs’ Constitutional Claims.
Defendants are entitled to qualified immunity from plaintiffs’ claims under the First, Eighth, and Fourteenth, amendments. Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Typically, “[d]etermining whether qualified immunity is appropriate is a two-step inquiry.” Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016) (citing Pearson, 555 U.S. at 232)). “First, a court must decide whether the facts that a plaintiff has shown make out a violation of a constitutional right.” Id. “Second, the court must consider whether the right at issue was ‘clearly established’ at the time of the alleged misconduct.” Id. Judges are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
Ultimately, the lodestar for whether a right was clearly established is whether the law “gave the officials ‘fair warning’ that their conduct was unconstitutional.” Ridpath v. Bd. of Governors
well established that the Eleventh Amendment bars suit against a state, a state agency, and state officials sued in their official capacities in federal court, absent a valid waiver. U.S. Const., amend. XI; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984). Section 1983 does not abrogate state immunity, see Quern v. Jordan, 440 U.S. 332, 345 (1979) and the State of Maryland has not waived its immunity from private suits in federal court. See Md. Code Ann., State Gov’t §§ 12-103(2), 104(a)(1) (LexisNexis 2014); Pennhurst, 465 U.S. at 99 n.9 (“[T]he Court consistently has held that a State’s waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts.”). Additionally, because defendants Corcoran and Miller are no longer employed by the Department, they lack the ability to be sued in an official capacity.
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Marshall Univ., 447 F.3d 292, 313 (4th Cir. 2006) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). The contours of the constitutional right “must be sufficiently clear that a reasonable official would understand what he is doing violates that right.” Hope, 536 U.S. at 753 (quotation omitted). Although “‘[c]learly established’ does not mean that ‘the very action in question has previously been held unlawful’ . . . it does require that, ‘in the light of pre-existing law the unlawfulness [of the official’s conduct] must be apparent.’” Owens v. Lott, 372 F.3d 267, 278 (4th Cir. 2004) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)) (brackets in original); see also Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (finding that “clearly established” does not “require a case directly on point . . . but existing precedent must have placed the statutory or constitutional question beyond debate.”).
“[W]hether a particular complaint sufficiently alleges a clearly established violation of law cannot be decided in isolation from the facts pleaded,” because “the sufficiency of [plaintiff’s] pleadings is both inextricably intertwined with and directly implicated by the qualified immunity defense.” Iqbal, 556 U.S. at 671. And, in assessing the merits of the qualified immunity defense, the threshold inquiry––whether the plaintiff has alleged a constitutional violation––is especially appropriate where “discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all.” Pearson, 555 U.S. at 236. See also Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011) (dismissal of a complaint based on qualified immunity is appropriate when “the face of the complaint clearly reveals” that the defense is “meritorious”) (citations omitted).
Defendants are entitled to qualified immunity under both prongs of the qualified immunity standard. First, as demonstrated above, plaintiffs have failed to allege facts plausibly demonstrating that any right of plaintiffs protected by the First, Eighth, or Fourteenth Amendment
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is implicated in this case. Plaintiffs have also failed to allege personal conduct by any defendant in alleged constitutional violations. Thus, the facts pleaded by plaintiffs “do not make out a constitutional violation at all” against the defendants. Pearson, 555 U.S. at 236.
Even if plaintiffs had stated a plausible claim that the defendants violated a constitutional right, defendants would still be entitled to qualified immunity because “the right’s contours were [not] sufficiently definite that any reasonable official in [the defendants’] shoes would have understood that [they were] violating it.” City & County of San Francisco, Cal. v. Sheehan, 135 S. Ct. 1765, 1774 (2015). As demonstrated above, plaintiffs’ First, Eighth, and Fourteenth Amendment claims are devoid of any “controlling authority,” al-Kidd, 563 U.S. at 742, that adopts plaintiffs’ expansive and extraordinary theories of a prisoner’s constitutional right to access the courts and to be free from unreasonable risk of harm. Nor do plaintiffs cite a “consensus of cases of persuasive authority” that has “placed the . . . constitutional question[s] beyond debate.” Id. at 741-2. Accordingly, defendants are entitled to qualified immunity. II. PLAINTIFFS HAVE FAILED TO STATE ANY PLAUSIBLE CLAIMS FOR RELIEF
UNDER THE ADA. A. Plaintiffs’ ADA Claim Is Barred by the Eleventh Amendment. Plaintiffs’ claims brought under Title II of the ADA should be dismissed because the State has Eleventh Amendment immunity from suit. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989).3 In United States v. Georgia, 546 U.S. 151, 159 (2006), the Supreme Court
3 Although plaintiffs do not specify whether they bring their ADA claim against Secretary Moyer in his official or individual capacity, Title II of the ADA does not permit individual capacity suits against a state official. Barnes v. Young, 565 F. App’x 272, 273 (4th Cir. 2014). Moreover, “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. As such, it is no different from a suit against the State itself.” Will, 491 U.S. at 71 (internal citations omitted). Thus, although plaintiffs assert their ADA
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held that the ADA abrogates state sovereign immunity for conduct that also violates the Fourteenth Amendment to the United States Constitution. The Supreme Court has not, however, held that state sovereign immunity is abrogated for conduct that does not rise to the constitutional level. See id.; see also Spencer v. Earley, 278 F. App’x 254, 257-58 (4th Cir. 2008). Indeed, the Fourth Circuit upheld the dismissal of an ADA claim on the basis of state sovereign immunity where the conduct did not violate the Fourteenth Amendment. Barnes v. Young, 565 F. App’x 272, 273 (4th Cir. 2014). Because plaintiffs have not stated a Fourteenth Amendment claim, as argued above in § I, the State is immune from suit for the purported ADA violations alleged in the complaint. Accordingly, plaintiffs’ ADA claims should be dismissed.
B. Plaintiffs Have Failed to State an ADA Claim. Claims brought under Title II of the ADA are “substantially the same” as those brought under § 504 of the Rehab Act, and courts typically analyze them together. Seremeth v. Board. of County Comm’rs Frederick County, 673 F.3d 333, 336 (4th Cir. 2012); Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995). Plaintiffs’ ADA claims are based upon the same purported conduct that serves as the basis of their Rehab Act claims, and are thus addressed at length below in Section III. For the reasons set forth below, plaintiffs have failed to plead with sufficiency that any of the defendants violated Title II of the ADA. III. PLAINTIFFS HAVE FAILED TO STATE ANY PLAUSIBLE CLAIMS FOR RELIEF UNDER § 504 OF THE REHABILITATION ACT. To state a claim under § 504 of the Rehab Act, plaintiffs must sufficiently plead that they (1) are qualified individuals with a disability; (2) were denied the benefits of a program or service of a public entity that receives federal funds; and (3) were denied such benefits “due to
claim against Secretary Moyer in addition to the Department, it should be construed as asserted only against the State.
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discrimination solely on account of the disability.” 4 Koenig v. Maryland, No. Civ.A. CCB-093488, 2010 WL 148706, at *1 (D. Md. Jan. 13, 2010), aff’d, 382 F. App’x 273 (4th Cir. 2010); 29 U.S.C. § 794(a). Plaintiffs’ Rehab Act claims fail because plaintiffs fail to plead with sufficiency that they were denied benefits of a service, program, or activity by reason of their disability.
There are three distinct grounds upon which relief may be pursued under § 504 of the Rehab Act and Title II of the ADA: “(1) intentional discrimination or disparate treatment; (2) disparate impact; and (3) failure to make reasonable accommodations.” A Helping Hand, LLC v. Baltimore County, Md., 515 F.3d 356, 362 (4th Cir. 2008). Plaintiffs do not specify which theory they base their claims upon, but rather conflate allegations of intentional discrimination with a purported failure to make reasonable accommodations. See, e.g., Am. Compl. ¶¶ 4-6. Under either theory, punitive damages may not be awarded, and plaintiffs must show intentional discrimination or disparate treatment by the defendants to be awarded compensatory damages. Paulone v. City of Frederick, 787 F. Supp. 2d 360, 373 (D. Md. 2011).
4 As indicated above, although defendants are entitled to sovereign immunity from plaintiffs’ ADA claims, to the extent the ADA claims may proceed, they are analyzed in this section because they are substantially the same as plaintiffs’ Rehab Act claims. There are two principal differences between Title II of the ADA and § 504 of the Rehab Act: (1) the Rehab Act applies only to public entities that receive federal financial assistance; and (2) the Rehab Act adds the word “solely” to the ADA’s requirement for a plaintiff to show discrimination by reason of the disability, and thus imposes a stronger causation standard between the disability and the purported discrimination than the ADA. Jarboe v. Maryland Dep’t of Pub. Safety & Corr. Servs., No. Civ.A. ELH-12-572, 2013 WL 1010357, at *3 (D. Md. Mar. 13, 2013). With respect to the first difference, defendants do not contest the applicability of the Rehab Act to the Department for the purposes of the instant motion. See Huber v. Howard County, Md., 849 F. Supp. 407, 415 (D. Md. 1994), aff'd, 56 F.3d 61 (4th Cir. 1995). With respect to the second difference, plaintiffs have failed to meet their burden to plead the causation element under both the ADA and Rehab Act standards, and thus the claims are appropriately analyzed together.
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The allegations in the complaint demonstrate that plaintiffs cannot make either showing. Under the Rehab Act and the ADA, states may be required to make reasonable modifications to rules, policies, or practices, or to provide auxiliary aids and services to ensure that disabled persons can benefit from certain services, programs, or activities. Jarboe, 2013 WL 1010357, at *4 (citing A Helping Hand, LLC, 515 F.3d at 362). With respect to blindness, auxiliary aids may include “qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments.” 42 U.S.C. § 12103. Whether a modification is reasonable depends upon the “totality of the circumstances; whether the service, program, or activity . . . ‘when viewed in its entirety,’ is readily accessible.” Dee v. Maryland Nat’l Capitol Park & Planning Comm’n, Civ. CBD-09-491, 2010 WL 3245332, at *5 (D. Md. Aug. 16, 2010) (citation omitted).
“A reasonable modification does not require the public entity to employ any and all means to make services available to persons with disabilities. Rather, the public entity is obligated to make those modifications that do not ‘fundamentally alter the nature of the service or activity of the public entity or impose an undue burden.’” Miller v. Hinton, 288 F. App’x 901, 902 (4th Cir. 2008) (citation omitted). Thus, to succeed on a failure to accommodate theory, a plaintiff must show that the defendants intentionally withheld a required (i.e. reasonable) accommodation, even if they did not intend to violate the law. Dee, 2010 WL 3245332, at *7. “It is the intentional withholding of an accommodation that is the intentional discrimination.” Id.
For the following reasons, plaintiffs have failed to plead plausibly that defendants denied them access to any required services or benefits.
A. Denied “Private, Independent, and Effective Access” to Inmate Handbook and Orientation Materials.
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Plaintiffs first claim that they were discriminated against by not being “afforded private, independent, and effective access” to the Inmate Handbook and “orientation materials.” Am. Compl. ¶ 3. Critically, plaintiffs do not allege that they have no means of obtaining the information in these documents, and in fact, their awareness of the substance of these documents is readily apparent.5 Rather, they purport to base their claim on their inability to read these documents personally, without pleading how their access to these materials is ineffective. This is insufficient. See Colon v. New York State Dep’t of Corr. & Cmty. Supervision, No. 15-Civ.-7432 (NSR), 2017 WL 4157372, at *6-7 (S.D.N.Y. Sept. 15, 2017) (“Plaintiff has ultimately failed to allege why the accommodation he seeks is more reasonable for blind prisoners—and legally required—when compared with the accommodations he already received . . . .”).
Moreover, like their constitutional claims, plaintiffs’ ADA and Rehab Act claims fail for the additional reason that they have alleged no injury as a result of their purported ineffective access to these materials. “The mere violation of the ADA does not alone establish injury. A plaintiff is obligated to show, by competent evidence, that a defendant’s violation of the ADA caused him actual injury before such plaintiff can recover.” Levy v. Mote, 104 F. Supp. 2d 538, 544 (D. Md. 2000). The only “injury” plaintiffs plead is “the risk of discipline or confrontations with correctional officers or other inmates.” Am. Compl. ¶ 30. Just like their First and Eighth Amendment claims, plaintiffs cannot base their ADA and Rehab Act claims on a speculative risk that has caused them no tangible injury. See Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996)
5 Plaintiffs know, for instance, that inmates are given orientation materials “with information specific to the institution in which they are incarcerated,” Am. Compl. ¶ 28, and they have a detailed understanding of the inmate grievance process and associated forms that inmates must complete. Am. Compl. ¶ 32. Plaintiffs could not have this working knowledge without access to these materials.
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(“Specificity is necessary so that prison officials are not required to file unnecessary responses to speculative allegations. A prisoner must also identify an actual injury resulting from official conduct.”). The fact that the only injury plaintiffs allege is a speculative one evidences the sufficiency of their current access to these materials.
Furthermore, plaintiffs have pleaded no facts plausibly showing any discriminatory actions or intent by the defendants. See Dee, 2010 WL 3245332, at *7. There is no mention, for instance, of what additional accommodations plaintiffs ever requested that defendants denied. Indeed, as noted above, references to the defendants are almost entirely absent from the complaint itself. Plaintiffs have therefore failed to state a plausible claim.
B. Denied Ability to Read and Draft Grievances and Lawsuits “Privately and Independently.”
For similar reasons, this Court should dismiss plaintiffs’ claim that they were discriminated against by being denied access to the inmate grievance process and the courts. Plaintiffs claim that because they are blind, they cannot read and draft grievance and other legal documents “privately and independently,” and cannot access the law library, without assistance from sighted inmates. Am. Compl. ¶¶ 33-40. The ADA itself does not contemplate that private and independent access to printed material is necessary; rather, it provides that a “qualified reader” is an acceptable auxiliary aid or service for the blind. 42 U.S.C. 12103(1)(B). The complaint offers no specific examples of why the offered accommodation of an inmate reader is not reasonable for any particular plaintiff.
Moreover, plaintiffs have pleaded no facts to show that their current access is not meaningful and effective. “[M]eaningful access and the question of whether accommodations are reasonable must be assessed through the prism of the prison setting.” Havens v. Colorado Dep’t of Corr., 897 F.3d 1250, 1268-70 (10th Cir. 2018). Courts have routinely found that where inmates
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are given assistance with the grievance process and court proceedings from other inmates, the ADA is satisfied. See id. (finding no ADA violation where the inmate “had some degree of law library access, enough that he was able to pursue multiple lawsuits.”); Wells v. Thaler, 460 F. App’x 303, 312-13 (5th Cir. 2012) (holding that “the existing accommodations were more than sufficient to give [plaintiff] effective and meaningful access to the law library” where another inmate could read to him and assist with court and other filings); Mason v. Correctional Med. Servs., Inc., 559 F.3d 880, 887 (8th Cir. 2009) (holding that an inmate assistant who helped plaintiff with daily tasks, including grievances, was sufficient under the ADA). As argued above in § I.B, that plaintiffs currently have meaningful access is evident solely from the existence of the instant consolidated lawsuits and the fact that they have filed numerous grievances. See Am. Compl. ¶¶ 33, 36-38, 4041; Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009) (“Because he is currently exercising his right to petition the government for redress of grievances through this lawsuit, he has not been harmed.”). That plaintiffs desire different auxiliary aids or services than they are currently provided has no bearing on whether defendants complied with the ADA. See Miller, 288 F. App’x at 902.
Furthermore, plaintiffs have not even specified what auxiliary aids or services they believe could provide them with more meaningful access, whether they ever made a request for such aids or services to defendants, and whether defendants denied such requests. Instead, they simply and insufficiently declare the purported ineffectiveness of their current access and entitlement to unidentified alternative modifications. This does not suffice to plausibly plead that defendants denied them effective access. What is more, there is no reason to assume that plaintiffs could effectively use other accommodations, or that they, without any formal legal training, would have more meaningful access to the legal process with independent legal research capabilities or increased law library access.
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Additionally, plaintiffs have not sufficiently pleaded any actual injury arising from their purported ineffective access. See Levy, 104 F. Supp. 2d at 544. Rather, they claim, with no specificity whatsoever, that they have had “grievances and lawsuits dismissed, Am. Compl. ¶ 41, and like the previous claim, they speculate about a risk of exposure to “extortion, sexual exploitation, and violence.” Am. Compl. ¶ 39. But yet again they offer no factual information about these purportedly dismissed grievances and lawsuits––including which plaintiff filed them and why they were dismissed––and glaringly, fail to cite even a single instance where a plaintiff suffered from extortion, sexual exploitation, and violence as a result of relying upon another inmate to assist him with the grievance process or a court filing. These critical failures warrant dismissal of this claim.
C. Denied Ability to “Read and Write Mail Privately and Independently.” Similar to the above claims, plaintiffs claim discrimination because they have to “rely on sighted inmates to use the mail services” and cannot “read and write mail privately and independently.” Am. Compl. ¶ 68. As noted above in § II.C and D, the ADA authorizes the use of “qualified readers” and “other effective methods of making visually delivered materials available to individuals with visual impairments.” 42 U.S.C. 12103(1)(B). Based upon this express language, courts have rejected claims that inmates are entitled to read and write mail “privately and independently” without the assistance of other individuals. See, e.g., Wells v. Thaler, 460 F. App’x 303, 310, 313 (5th Cir. 2012). Because plaintiffs’ preferred accommodation is not the benchmark of what is required under the disability laws, “[t]he failure to provide [plaintiffs] with the specific accommodations of [their] choosing does not violate the ADA or the Rehabilitation Act.” Lopez v. Kirkpatrick, 505 F. App’x 58, 59 (2d Cir. 2012). Rather, plaintiffs must show that their existing access is inadequate, Wells, 460 F. App’x at 313, and they have failed to do so
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because they have not pleaded any plausible allegations showing a denial of adequate access to the mail system.
Moreover, plaintiffs have yet again failed to plead any actual injury resulting from their purported inadequate access to the mail system. Instead, they again speculate that relying upon other inmates makes them “vulnerable to exploitation, extortion, and violence” and makes them “feel unsafe.” Am. Compl. ¶¶ 69, 70. This is simply insufficient, and courts have dismissed cases with far less hypothetical injuries. See Chase v. O’Malley, 466 F. App’x 185, 187 (4th Cir. 2012) (dismissing claim for failure to allege actual injury where plaintiff claimed prison officials actually destroyed his mail); Jones v. Bishop, No. CV CCB-16-2893, 2018 WL 1521874, at *15 (D. Md. Mar. 28, 2018) (dismissing claim for mail tampering because plaintiff failed to “identify the nature of the mail, the individuals involved, particularize how they have ‘tampered’ with his mail, or identify any actual harm.”). Plaintiffs’ ADA and Rehab Act claims based upon a purported denial of access to the mail system must therefore be dismissed.
D. Denied Access to Unspecified Work and Educational Programs. Plaintiffs further claim they are denied access to some work and educational programs that offer higher pay, training, and more diminution credits, such as through Maryland Correctional Enterprises. Am. Compl. ¶¶ 48-50, 54-56. They claim they have been denied placement in, or were removed from, programs based upon “unfounded safety concerns and stereotypes,” and have been “relegated to jobs that pay less and offer fewer diminution credits and opportunities for vocational training.” Am. Compl. ¶ 49. In order to maintain such a claim, plaintiffs must sufficiently plead that they are qualified for the benefit in question, i.e., a specific program, and that they were excluded “due to discrimination solely on the basis of the disability.” Doe v. University of Md. Med. Sys. Corp., 50
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F.3d at 1265. An individual is not qualified if he or she “poses a significant risk to the health or safety of others by virtue of the disability that cannot be eliminated by reasonable accommodation. Id. “Legitimate physical qualifications may in fact be essential to participation in particular programs.” Knapp v. Northwestern Univ., 101 F.3d 473, 482 (7th Cir. 1996); see also 34 C.F.R. § Pt. 104, App. A, subpt. A(5) (noting that a blind person who possesses all of the qualifications for driving a bus except sight is not qualified to be a bus driver).
Plaintiffs have not met their pleading burden. They have failed to identify what programs they applied for, how they are qualified for such programs, or at minimum, how they would be qualified with reasonable accommodations. They have failed to identify the specific bases for each of their denials or exclusions from programs. They have also failed to plead any facts to show that they were excluded from such programs “solely on the basis” of their blindness, Doe, 50 F.3d at 1265, and they have failed to allege any actual injury resulting therefrom. In fact, the complaint makes clear that plaintiffs were given the same educational opportunities as other inmates, and were only excluded from certain work programs on the basis of safety concerns or physical constraints. Am. Compl. ¶¶ 49, 54-55. Cf. Muhammad v. Kaloroumakis, No. Civ. CCB14-1794, 2015 WL 1712594, at *1 (D. Md. Apr. 14, 2015) (denying a motion to dismiss where a blind plaintiff sufficiently alleged he was excluded from all prison work assignments); Kogut v. Ashe, 592 F. Supp. 2d 204, 207 (D. Mass. 2008) (denying motion to dismiss where disabled plaintiff sufficiently alleged he was excluded from the facility’s entire good-time work program). Plaintiffs have therefore failed to plead a plausible claim that they were denied access to a program for which they were qualified on the basis of their blindness.
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E. Denied Opportunity to Navigate the Prison Without Escort. Plaintiffs further base their ADA claim on their inability to freely and independently navigate the prison facility. Am. Compl. ¶¶ 60-62. They claim the “walker program,” in which they are assigned a paid inmate to serve as a guide and escort throughout the facility, deprives them “of the independence sighted inmates enjoy” to “choose which part of RCI to visit.” Id. They claim that with “white canes”6 and mobility training, they could navigate the facility freely. Id. However, as with their previous ADA claims, they fail to plausibly demonstrate how the walker program is inadequate to enable them to navigate the facility. In fact, it is well-settled that providing another individual, including an inmate, to serve as a walker or escort is reasonable and appropriate under the ADA. See Mason, 559 F.3d at 887 (dismissing ADA claim where plaintiff had another inmate serve as a facility escort, despite the escort’s sporadic unavailability); Colon, 2017 WL 4157372, at *7 (holding it reasonable for inmates and staff to escort blind inmates even where plaintiff was attacked and injured during one such escort); Havens, 897 F.3d at 1269 (holding plaintiff’s access to prison facility meaningful where he was able to travel around the facility with the assistance of staff). Furthermore, plaintiffs again fail to identify any actual resulting injury and instead continue to surmise about the speculative risk of “extortion, exploitation, and violence” they claim is inherent in relying upon another inmate’s assistance. They also collectively claim, again in conclusory fashion, that they have been “threatened” by their walkers. Am. Compl. ¶ 63. Yet they fail to specify which plaintiffs have been so threatened and the nature of such threats. And they have not pleaded any actual harm or injury caused by their walkers. To the contrary, even after
6 A “white cane,” also known as a “probing cane,” is used to assist mobility and navigation, rather than for stability.
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they “complained about their walkers’ behavior,” the walkers never caused any actual harm or injury. Am. Compl. ¶¶ 63-65. That is why they are forced to speculate about a theoretical risk.
Nor is there reason to assume that the white canes and mobility training plaintiffs desire will provide them the ability to independently navigate the facility. A prison facility, with its array of security features, poses unique obstacles for independent navigation by the blind. More importantly, allowing blind inmates to walk unescorted around a prison raises safety and security concerns that may not exist outside the prison context. See Love v. Westville Corr. Ctr., 103 F.3d 558, 561 (7th Cir. 1996) ([I]n the prison setting . . . [s]ecurity concerns, safety concerns, and administrative exigencies would all be important considerations to take into account.”). Indeed, prison officials are accorded great deference in the administration and management of their facilities. Torcasio v. Murray, 57 F.3d 1340, 1345-46, 1355 (4th Cir. 1995). Although the steps taken by DOC officials to provide plaintiffs with access to RCI’s programs and services may “not satisfy all of [plaintiffs’] requests,” id. at 1356, those steps “certainly could have been viewed by a reasonable prison administrator as a satisfactory accommodation of whatever right [the plaintiffs] had to modification of prison facilities” and policies. Id.
Curiously, plaintiffs seem to believe they would be safer if allowed to travel the prison alone and unescorted, than with an assigned escort. However confident plaintiffs are in their own abilities, it is not unreasonable of Department officials, who “have the obligation to consider security and other factors unique to the prison environment in their decision-making,” Havens, 897 F.3d at 1270, and who are “accorded . . . considerable discretion” in doing so, id., to determine that the walker program was an appropriate mechanism for providing blind inmates with access to the institution’s services and programs, while protecting institutional safety and security.
F. Denied Single Celling and Housing Status of Their Choosing.
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Plaintiffs claim they are discriminated against because blind inmates are “segregated” at RCI and thus do not have access to services and programs available at other facilities. Am. Compl. ¶¶ 74-76. They further claim that housing them in double cells with other inmates exposes them to a risk of “abuse and exploitation,” and that they have been denied the accommodation of singlecell housing. Am. Compl. ¶¶ 79-82.
Inmates are not entitled to be housed in any particular facility or cell, and are not entitled to any particular security classification. Spivey v. Department of Pub. Safety & Corr. Servs., No. Civ. JFM-09-440, 2009 WL 5177285, at *3 (D. Md. Dec. 18, 2009); Ford v. Harvey, 106 F. App’x 397, 399 (6th Cir. 2004); Montanye v. Haymes, 427 U.S. 236, 242 (1976); Sheehan v. Beyer, 51 F.3d 1170, 1174 (3d Cir. 1995) (“An inmate does not have a right to be placed in the cell of his choice.”); Hewitt v. Helms, 459 U.S. 460, 468 (1983) (“It is plain that the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.”). Thus, to maintain the instant claim, plaintiffs must plausibly demonstrate that their housing and cell assignments were ineffective, i.e. denied them access to services and programs. Plaintiffs fail to do this.
For instance, plaintiffs have not pleaded any disparate or discriminatory treatment from other inmates at RCI regarding their housing and cell assignments. They have not pleaded any facts regarding what programs at other facilities they are qualified to participate in but have been denied access to. They have not even pleaded that they requested access to any particular program available at another facility. And they certainly have not pleaded the requisite intentional conduct. They cannot meet their burden to plead a plausible claim that their housing assignments are in any way discriminatory with this paucity of information.
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Although plaintiffs claim that they have been discriminated against because they have been denied single-cell housing, they concede that some of them are currently housed in single cells. Am. Compl. ¶¶ 82-83. Moreover, they have failed to plead any basis for why and how their current cell assignments are ineffective and whether they requested and were denied reasonable accommodations. Plaintiffs have not stated a claim for any discrimination in their housing and cell assignments. Accordingly, this Court should dismiss plaintiffs’ ADA and Rehab Act claims.
CONCLUSION The motion to dismiss should be granted, and plaintiffs’ complaint should be dismissed.
Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland
/s/ STEPHANIE LANE-WEBER TERESA M. KELLY Assistant Attorneys General St. Paul Plaza - 19th Floor 200 St. Paul Place Baltimore, Maryland 21202 (410) 576-7962 (Telephone) (410) 576-6880 (Telefax) E-mail: tkelly@oag.state.md.us E-mail: slaneweber@oag.state.md.us Attorneys for Defendants
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