Campbell v. Cushwa

HOLLANDER, Judge. This appeal arises from a suit filed on July 13, 1998, in the Circuit Court for Somerset County, by Russell J. Campbell, appellant, pro se, against Patricia K. Cushwa, Chair of the Maryland Parole Commission; Richard A. Lanham Sr., Commissioner of the Division of Correction (“DOC”); and Melanie C. Pereira, former Deputy Commissioner of Corrections, appellees. Appellant, a prison inmate, alleged that, in retaliation for lawsuits, grievances, and administrative complaints filed by him, appellees repeatedly refused to decrease his security classification or grant parole, in violation of his constitutional ⁵²⁶ rights. Relying on 42 U.S.C. § 1983 (1994, Supp. III 1997), he sought declaratory, injunctive, and monetary relief.

In response, appellees filed a motion to dismiss for failure to state a claim. On September 3, 1998, the court granted appellees’ motion. Thereafter, appellant noted this appeal. He presents two issues for our review, which we have condensed and rephrased: Did the trial judge err in granting appellees’ motion to dismiss for failure to state a claim?

For the reasons discussed below, we shall affirm. FACTUAL SUMMARY At the relevant time, appellant was an inmate incarcerated at the Eastern Correctional Institution (“ECI”) in Westover, serving a forty-five year sentence for murder. 1 At the time of suit, he was classified as a medium security prisoner. In appellant’s complaint, he alleged, inter alia, violations of the Ex Post Facto Clause, the Equal Protection Clause, and the Due Process Clause of the Federal Constitution, as well as the deprivation of other rights protected by the First, Fifth, Eighth, and Fourteenth Amendments. Appellant contended that appellees retaliated against him by repeatedly refusing to reduce his security classification, and he claimed that the “failure to lower his security status has ... effectively denied him any form of meaningful opportunity for parole----” According to appellant, he initially appeared before the “reclassification team” at Brockbridge Correctional Facility (“Brockbridge”) on December 27,1995, at which time the team recommended a decrease in appellant’s security status to “Pre-Release Outside Detail.” Although the reclassification was approved by the Warden, Pereira allegedly decided to “place the reclassification recommendation on hold,” pending a March 1996 Parole Commission hearing.

Appellant claimed ⁵²⁷ that the Parole Commission was advised of Brockbridge’s decision on March 18, 1996, and “gave [appellant] a 12 month (one year) set off with an additional recommendation of ‘outside’ work detail and subsequent work release.” Appellant again appeared before the “reclassification team” at Brock-bridge on June 25, 1996, and received another favorable recommendation. Appellant further alleged that his ease manager informed him that his reclassification had been “Approved.” Appellant asserted, however, that, as a result of a grievance letter he submitted to Pereira on July 10, 1996, relating to matters he raised as early as 1994, his pre-release status was “Disapproved.” Subsequently, he was transferred to the Jessup Pre-Release Unit and, on October 1, 1996, he appeared before the reclassification unit there. Although a reduction in classification was recommended, it was also “Disapproved.” Appellant further asserted that, because of an institutional infraction allegedly committed by him in October 1996, he lost his “Min., security status.” When the adjustment infraction was reversed following an inmate grievance hearing, his security status was not restored. Consequently, appellant complained of appellees’ “arbitrary and capricious abuse of discretion” in the “application of [DOC Directive] 100-1, ... totally without penological justification and in retaliation for his successful prior litigations and formal complaints.” Moreover, in February 1998, after appellant appeared for a reclassification hearing, the reclassification team recommended minimum security status, but “the Commissioner’s Office” did not approve the recommendation.

In his complaint, appellant stated that the DOC’s “repeated denial of recommended security status ... has in fact increased the punishment for his criminal offense” and effectively denied him “any form of meaningful opportunity for parole in violation of the Ex Post Facto Clause.” Further, he alleged that appellees’ refusal to lower his security classification, “without psychological justification or reasonable public safety concerns, and the Parole Commission’s refusal to recommend parole without lower security classification, each with knowl ⁵²⁸ edge of the other, amount[s] to ‘mental torture in violation of the Eighth and Fourteenth Amendment’s prohibition on cruel and [un]ususal punishment.’ ” As we noted, appellees moved to dismiss for failure to state a claim. They asserted that security classifications “in and of themselves do not constitute ex post facto punishment,” and that the “speculative possibility” of a delay in appellant’s prospect for parole does not constitute an ex post facto violation. Appellees also relied on the doctrines of sovereign immunity, public official immunity, and State employee immunity. In his opposition to the motion, appellant alleged that he had a parole re-hearing in March 1998, at which time two Parole Commissioners recommended that he receive “a one (1) year set off with a recommendation of “work release and Dlesser security,’ ” but that the application of [DOC Directive] 100-508, which became effective in February 1997, made the Commissioners’ decision “meaningless without [approval for] an appropriate delayed release” date.

In appellant’s view, these actions violated his “ ‘clearly established’ ex post facto rights.” PROCEDURAL BACKGROUND In Maryland, the DOC is responsible for the operation of the State’s penal system. See Md.Code (1999), §§ 3-203, 3-205 of the Correctional Services Article (“C.S.”). DOC Directive (“DCD”) 100-005.II.B provides: “In classifying inmates committed to its custody, the Division of Correction requires consideration of case data, inmate participation, and hierarchical review. Inmates shall be classified to the least restrictive security level consistent with their needs, public safety, and the safety and orderly operation of the Division’s facilities.” (Emphasis added).

The DOC operates institutions in four security levels: Maximum, medium, minimum,' and pre-release. DCD 110-12.IV.2. As we noted, at the relevant time appellant was classified in the medium security category. Medium security institutions ⁵²⁹ provide “secure housing ... for inmates who pose some risk of violence, may be escape risks, or have a limited history of institutional disciplinary problems.” DCD 110-12.IV.2.b.

According to DCD 110-12.2.C, “Minimum security facilities have fewer security features [than medium security] for inmates who pose less risk of violence or escape and who have a minimal history of disciplinary problems.” “Pre-release” is the least restrictive category. DCD 110-12.2.d provides: “Pre-release security facilities have the fewest security features for inmates who present the least risk of violence and escape and who have a record of satisfactory institutional behavior.” The procedure for the reclassification of the security status of an inmate is contained in DCD 100-102, issued on January 16, 1996. An institutional score is used to determine whether a change in security is approved. See Appendix 1 to DCD 100-102.D.15.

DCD 100-102.II.A provides: “An inmate who is in medium security and has an exclusion which would prohibit his/her reduction below medium security status ... shall have his/her annual review by completing [two sections] of the Security Reclassification Instrument, Form DC[D] 100-102a____” Appendix 2 to DCD 100-102 is entitled “Security Reclassification Instrument” (the “Instrument”). Section A of Appendix 2, entitled “Exclusionary Offender,” lists seven categories of offenses: 1) Life/Death; 2) Rape/Sex Offense; 3) Child Abuse; 4) Escape History; 5) New Criminal Offense in DOC; 6) 4X 643B [ 2 ]; 7) No Pre-Release. Section B of the Instrument is entitled “Security Assessment.” Section B, subsection 1 sets forth seven categories for which points are added to an inmate’s score based on the “most severe current offense.” In the “Security Assessment,” points are also based on the inmate’s total term of incarceration, type of detain-er/documented pending charge, prior incarcerations, history of escape attempts, and history of violence. Pursuant to Section C of the Instrument, entitled “Institutional Assessment,” an ⁵³⁰ inmate who is not an exclusionary offender obtains an institutional score that is used to determine the recommendation for reclassification.

The Parole Commission has “exclusive power” to authorize parole. C.S. § 7-205(a); Code of Maryland Regulations (“CO-MAR”) 12.08.01.18(A)(1). The warden reviews and signs all recommendations. DCD 100-102, App. 1 at D.22.

An inmate sentenced to the custody of the DOC for the commission of a violent crime on or after October 1994 is not eligible for parole until the inmate has served the greater of one-half of the aggregate sentence for violent crimes or a quarter of the inmate’s total aggregate sentence. C.S. § 7-301(c)(l) & (2). Further, “[r]elease on parole may not be granted unless recommended by a hearing examiner and approved by a parole commissioner____” COMAR 12.08.01.18(D)(1). C.S. § 7-305 delineates the factors to be considered by the Commission in determining whether an inmate is suitable for parole.

The statute provides: § 7-305. Factors and information to be considered. Each hearing examiner and commissioner determining whether an inmate is suitable for parole, and the Commission before entering into a predetermined parole release agreement, shall consider: (1) the circumstances surrounding the crime; (2) the physical, mental, and moral qualifications of the inmate; (3) the progress of the inmate during confinement, including the academic progress of the inmate in the mandatory education program required under § 22-102 of the Education Article; (4) whether there is reasonable probability that the inmate, if released on parole, will remain at liberty without violating the law; (5) whether release of the inmate on parole is compatible with the welfare of society; ⁵³¹ (6) an updated victim impact statement or recommendation prepared under § 7-801 of this title; (7) any recommendation made by the sentencing judge at the time of sentencing; (8) any information that is presented to a commissioner at a meeting with the victim; and (9) any testimony presented to the Commission by the victim or the victim’s designated representative under § 7-801 of this title. In addition, COMAR 12.08.01.18(A) states, in pertinent part: (1) In determining whether a prisoner is suitable for release on parole, the Commission considers: (a) The circumstances surrounding the crime; (b) The physical, mental, and moral qualifications of persons who become eligible for parole; (c) Whether there is reasonable probability that the prisoner, if released on parole, will remain at liberty without violating the laws; and (d) Whether the release of the prisoner on parole is compatible with the welfare of society.

(2) The Commission also considera the following criteria: (a) Whether there is substantial risk the individual will not conform to the conditions of parole; (b) Whether release at the time would depreciate the seriousness of the individual’s crime or promote disrespect for the law; (c) Whether the individual’s release would have an adverse affect on institutional discipline; (d) Whether the individual’s continued incarceration will substantially enhance his ability to lead a law abiding life when released at a later date. (3) To make these determinations the Commission examines: (a) The offender’s prior criminal and juvenile record and his response to prior incarceration, parole or probation, or both; ⁵³² (b) The offender’s behavior and adjustment and his participation in institutional and self-help programs; (e) The offender’s vocational, educational, and other training; (d) The offender’s current attitude toward society, discipline, and other authority, etc.; (e) The offender’s past use of narcotics, alcohol, or dangerous controlled substances; (f) Whether the offender has demonstrated emotional maturity and insight into his problems; (g) Any reports or recommendations made by the sentencing judge, the institutional staff, or by a professional consultant such as a physician, psychologist, or psychiatrist; (h) The offender’s employment plans, his occupational skills, and his job potential; (i) The offender’s family status and stability; (j) The offender’s ability and readiness to assume obligations and undertake responsibilities; (k) The adequacy of the offender’s parole plan and the availability of resources to assist him; (l) Any other factors or information which the Commission may find relevant to the individual offender’s consideration for parole. Moreover, if an inmate is approved for parole and is then convicted of an infraction or reclassified to greater security, a case management supervisor makes a report to the Commission. COMAR 12.02.06.08(F)(4) provides that, following receipt of the report, “the Commission may take whatever action is deemed appropriate, including suspending the decision to approve and scheduling the inmate for another hearing, after which the Commission may: (a) Rescind the decision to approve; (b) Extend the date of parole release; or (c) Affirm the decision to approve.” Work release is generally available to an eligible inmate who can enter the community with minimal risk to public ⁵³³ safety.

COMAR 12.02.12.01(A). Work release is considered a privilege intended to prepare eligible persons to function in the community. See C.S. § 3-801(b). In order to qualify for work release, an inmate must have attained minimum security or pre-release status for at least thirty consecutive days.

See DCD 100-508.III.A. Further, DCD 100-508.III.B states that “[a]n inmate incarcerated for a crime of violence shall be within eight months of a definite release date” before becoming eligible for work release. In addition, DCD 100-005.II.P.4 provides that “an inmate who has been convicted of a new criminal offense committed during the present incarceration” can not be classified below medium security “unless approved for a delayed parole release ... or unless within one year of a mandatory supervision release date or maximum expiration release date.” In any event, the Commissioner has the discretion to approve, disapprove, or defer action on an inmate’s work release status. C.S. § 3-801(d)(2). An increase in an inmate’s security classification reduces his opportunity for parole or work release.

An inmate who is not classified .as minimum security is subject to reclassification every twelve months. See DCD 100-005.II.N.3.a. DCD 100-005.II.T expressly authorizes the Commissioner to modify an inmate’s security classification “at any time for any reason.” Specifically, the provision states: Notwithstanding the provisions of this or any other directive and consistent with the law, the Commissioner and those authorized by the Commissioner have the absolute discretion to modify, suspend, or terminate the case management process for any reason. Similarly, the Commissioner or the Commissioner’s designees retain the discretion to modify the classification and/or assignment of any inmate at any time for any reason.

DISCUSSION I. Appellant argues that the trial court erred when it granted appellees’ motion to dismiss because his complaint adequately ⁵³⁴ alleged “a chronology of events from which retaliation [for his filing of lawsuits and grievances] may be inferred.” Appellees counter that appellant’s claims lack merit because he failed to allege a deprivation of either constitutional or statutory rights that entitled him to relief. The grant of a motion to dismiss is only proper when the complaint does not disclose, on its face, a legally sufficient cause of action. Hrehorovich v. Harbor Hosp. Ctr., Inc., 93 Md.App. 772, 785 , 614 A.2d 1021 (1992), cert. denied, 330 Md. 319 , 624 A.2d 490 (1993).

In considering a motion to dismiss for failure to state a claim under Rule 2-322(b)(2), a court must assume the truth of all well pleaded facts and all reasonable inferences that may be drawn from them. Manikhi v. Mass Transit Admin., 127 Md.App. 497, 510 , 733 A.2d 372 , cert. denied, 356 Md. 495 , 740 A.2d 613 (1999); Rossaki v. NUS Corp., 116 Md.App. 11, 18 , 695 A.2d 203 (1997). The plaintiff, moreover, must allege facts with specificity; “[b]ald assertions and conclusory statements .. .■ will not suffice.” Bobo v. State, 346 Md. 706, 708-09 , 697 A.2d 1371 (1997) (citation omitted); see Manikhi, 127 Md.App. at 510 , 733 A.2d 372 . Thus, dismissal is proper when the facts and allegations, even if proven, “nonetheless fail to afford relief to the plaintiff.” Bobo, 346 Md. at 709 , 697 A.2d 1371 (citing Morris v. Osmose Wood Preserving, 340 Md. 519, 531 , 667 A.2d 624 (1995)).

On appeal, we “must determine whether the trial court was legally correct, examining solely the sufficiency of the pleading.” Bobo, 346 Md. at 709 , 697 A.2d 1371 .

II

As we noted, appellant filed suit under 42 U.S.C. § 1983 . Federal law governs any claims and defenses based on 42 U.S.C. § 1983 . Ritchie v. Donnelly, 324 Md. 344, 353 , 597 A.2d 432 (1991); Davis v. DiPino, 121 Md.App. 28, 49 , 708 A.2d 357 (1998), aff'd. in part, 354 Md. 18 , 729 A.2d 354 (1999). Generally, 42 U.S.C. § 1983 authorizes suit against a “person” who, under color of state law, deprives the plaintiff of a federally protected right.

Ritchie, 324 Md. at 354 , 597 A.2d ⁵³⁵ 432; Davis, 121 Md.App. at 49 , 708 A.2d 357 . “Section 1983 does not confer any substantive rights, however.” Davis, 121 Md.App. at 50 , 708 A.2d 357 (citing Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 , 99 S.Ct. 1905 , 60 L.Ed.2d 508 (1979)). Section 1983 states, in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... 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 iiyured in an action at law, suit in equity, or other proper proceeding for redress____ In order to state a claim under § 1983 claim, the following “essential elements” must be alleged: “(1) that the defendant was acting under color of state law in the actions complained of; and (2) that the defendant deprived plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States.” Clark v. Link, 855 F.2d 156, 161 (4th Cir.1988) (citation omitted); see Davis, 121 Md.App. at 50 , 708 A.2d 357 . “If there is no violation of a federal right, [then] there is no basis for a § 1983 action____” Clark, 855 F.2d at 161 ; see Screws v. United States, 325 U.S. 91, 108 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945); Mensh v. Dyer, 956 F.2d 36, 39 (4th Cir.1991); Clipper v. Takoma Park, 876 F.2d 17, 19 (4th Cir.1989); Davis, 121 Md.App. at 50 , 708 A.2d 357 . In his suit, appellant alleged that appellees violated his rights under the First Amendment. The First Amendment protects the right to free speech, which includes “the right to be free from retaliation by a public official for the exercise of that right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676 , 685 (4th Cir.2000) (citation omitted). “[B]y engaging in retaliatory acts, public officials place informal restraints on speech....” Id.

Thus, retaliation by a public official for the exercise of a constitutional right may be actionable under § 1983. See ACLU v. Wicomico County, 999 F.2d 780 , 785 (4th Cir.1993). Nevertheless, “not every reaction made in ⁵³⁶ response to an individual’s exercise of his First Amendment right to free speech is actionable retaliation.” Suarez, 202 F.3d at 685 (citing DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir.1995)). Moreover, to sustain a cause of action under 42 U.S.C. § 1983 on this basis, appellant must allege that appellees directed or participated in the alleged constitutional violations.

Rizzo v. Goode, 423 U.S. 362, 370-71 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976). The classification of prisoners is ordinarily a matter vested in the discretion of prison administration, in accordance with statute and COMAR regulations. See Grimm v. Jackson, 849 F.Supp. 1127, 1132-33 (W.D.Va.1994), aff'd sub nom. Hill v. Jackson, 64 F.3d 163 (4th Cir.1995).

In order to prevail in connection with the motion to dismiss, appellant had to aver, inter alia, that he “suffered some adversity in response to [the] exercise of protected rights.” ACLU, 999 F.2d at 785 (citation omitted); see Suarez, 202 F.3d at 685. Claims of retaliation are “legally frivolous unless the complaint implicates some right that exists under .the Constitution.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994), cert. denied, 514 U.S. 1022 , 115 S.Ct 1371 , 131 L.Ed.2d 227 (1995). Any claim that fails to do so “ ‘lacks even an arguable basis in law.’ ” Id. (quoting Neitzke v. Williams, 490 U.S. 319, 328 , 109 S.Ct. 1827 , 104 L.Ed.2d 338 (1989)).

Moreover, such claims are considered with skepticism, because “ ‘[e]very act of discipline by prison officials is by definition “retaliatory” in the sense that it responds directly to prisoner misconduct.’ ” Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir.1996) (quoting Adams, 40 F.3d at 74 ). Thus, in order to plead a § 1983 retaliation claim based on the First Amendment, appellant had to allege: 1) that his speech was protected; 2) that appellees’ “alleged retaliatory action adversely affected [appellant’s] constitutionally protected speech,” Suarez, 202 F.3d at 686; and 3) “that a causal relationship exists between [his] speech and the [appellees’] retaliatory action.” Suarez, 202 F.3d at 686 (citation omitted). The Fourth Circuit made clear in Suarez that “the ⁵³⁷ retaliatory acts committed by a public employer [must] be more than de minimis or trivial.” Id. (citations omitted).

The court considered the appropriate inquiry to be whether the public officials engaged in conduct that was “threatening, coercive, or intimidating so as to intimate that punishment, sanction, or adverse regulatory action will imminently follow.” Suarez, 202 F.3d at 689 (citations omitted). The first prong under Suarez, supra, requires us to determine whether appellant’s grievances and complaints constituted protected speech. To be sure, appellant had a right to proceed lawfully in filing grievances against employees of the DOC. Cavey v. Levine, 435 F.Supp. 475, 482 (D.Md.1977), aff'd sub nom.

Cavey v. Williams, 580 F.2d 1047 (4th Cir. 1978); Timmerman v. Brown, 528 F.2d 811, 815 (4th Cir. 1975). In this regard, we are mindful of what the Supreme Court said in Pell v. Procunier, 417 U.S. 817, 822 , 94 S.Ct. 2800 , 41 L.Ed.2d 495 (1974): We start with the familiar proposition that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285 [ 68 S.Ct. 1049 , 92 L.Ed. 1356 ] (1948). See also Cruz v. Beto, 405 U.S. 319, 321 [ 92 S.Ct. 1079 , 31 L.Ed.2d 263 ] (1972). In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.

Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law. The second prong of the analysis focuses on whether the retaliatory action deprived appellant of a valuable benefit. See Suarez, 202 F.3d at 685; see also ACLU, 999 F.2d at 785 (quoting Huang v. Board of Governors, 902 F.2d 1134, 1140 (4 th Cir.1990)). Appellant maintains, inter alia, that, in re ⁵³⁸ sponse to his