Pevia v. Warren, Warden

CourtDistrict Court, D. Maryland
DecidedDecember 14, 2021
Docket1:21-cv-00111
StatusUnknown

This text of Pevia v. Warren, Warden (Pevia v. Warren, Warden) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pevia v. Warren, Warden, (D. Md. 2021).

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

DONALD R. PEVIA, *

Plaintiff, *

v. * Civil Action No. ELH-21-111

G. WARREN, Warden, et al., *

Defendants. * *** MEMORANDUM OPINION

Donald R. Pevia, the self-represented plaintiff, has filed suit against multiple defendants, pursuant to 42 U.S.C. § 1983. ECF 1. He has appended several exhibits to the suit. ECF 1-1. The defendants include former Assistant Warden Gregory Werner, former Commissioner of Corrections Wayne O. Hill, Acting Warden Richard Roderick, and Lt. Vaughn Whiteman, a correctional officer.1 Pevia alleges that defendants violated his rights under the First and Eighth Amendments to the Constitution. In addition, he alleges that the terms of a settlement agreement in an earlier case, ELH-14-631, were violated when defendants prohibited him from attending religious services. Pevia seeks compensatory and punitive damages as well as injunctive and declaratory relief. Defendants have moved to dismiss or, in the alternative, for summary judgment. ECF 13. The motion is supported by memorandum (ECF 13-1) (collectively, the “Motion”) and exhibits, including declarations of Correctional Case Management Specialist II John White (ECF 13-2), Correctional Case Management Specialist II Benjamin Bradley (ECF 13-3) and Chaplain Kevin

1 In the Complaint, plaintiff references defendant “G. Warren,” and describes him as the Warden. The Clerk shall amend the docket to reflect his correct name, Gregory Werner. Lamp (ECF 13-4). Pevia was notified of his right to respond to the motion (ECF 14) and he has done so. ECF 18; ECF 19.2 He also submitted exhibits. No hearing is necessary. See Local Rule 105.6. For the reasons discussed below, I shall grant the Motion. I. Background

A. Plaintiff’s allegations At all times relevant to the Complaint, Pevia was confined at North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland. ECF 1. He filed this suit on January 13, 2021, arising from the denial of his participation in Native American worship services in February and March of 2020. In particular, Pevia alleges that he was released from disciplinary segregation on February 14, 2020, and placed in general population in Housing Unit (“HU”) 2. On March 2, 2020, he submitted a religious preference form but was not placed on the pass list to attend weekly services. ECF 1-1 at 1, 26. Pevia explains that his religion mandates that he participate in religious services on grass or dirt and that the only Native American worship hoop is located between HU

3 and HU 4. ECF 1-1 at 26. According to Pevia, Lt. Whiteman instituted a policy that prevented inmates living in HU 2, where Pevia was housed, from attending religious services with inmates from HU 3 or HU 4, or from leaving HU 2 to attend services. ECF 1-1 at 26. Despite this policy, another inmate in his housing unit, Norman Mayes, was placed on the list for Native American services. Id.

2 ECF 18 is titled “Motion For Summary Judgment, And Response To Defendants [sic] Motion to Dismiss.” Therefore, it was docketed at ECF 18 as the opposition and at ECF 19 as a motion. I shall construe it as an opposition. To the extent it is a summary judgment motion, it is without merit. Additionally, Pevia alleges that the conduct of defendants breached the settlement agreement he entered in Civil Action ELH-14-531. It provided, in part, that each time the Iron House Council visited NBCI they would meet with Pevia outside to engage in a Native American religious visit with a lit pipe. ECF 1-1 at 13.3 The settlement agreement was executed on August 2, 2016. By its terms, it expired three

years after its effective date. ECF 1-1 at 13. Pevia concedes that the settlement agreement is no longer in effect. ECF 18 at 11. Pevia filed an Administrative Remedy Procedure (“ARP”) on March 5, 2020, concerning the failure to add him to the Native American worship pass list. ECF 1 at 2; ECF 1-1 at 1-2 (ARP NBCI-0505-20). The ARP was denied at the institutional level. But, on July 20, 2020, on appeal to the Commissioner, the ARP was found “meritorious in part.” ECF 1-1 at 7. The Commissioner said, id.: [S]taff failed to adhere to OPS. 140.0002. The Religious Services Manual, OPS 140.0002 Attendance section F(3) states, “The Managing Official or his/her designee shall afford reasonable opportunity for offenders to attend congregate worship.”

Staff failed to follow proper procedures in communicating with the Chaplain’s Office to have you placed on the Native American religious services list when you were released form segregation. However the failure in the procedural process of communicating your request to attend your religious worship does not demonstrate any malicious intent on the part of the Administration or staff.

Further, the Commissioner directed the Warden to ensure compliance with OPS. 140.0002 and to develop an efficient procedure to communicate with the Chaplain’s Office when an inmate who is released from disciplinary segregation asks to be placed on a religious service pass list. Id. On September 24, 2020, the Inmate Grievance Office (“IGO”) dismissed Pevia’s appeal.

3 No members of the Iron Horse Council visited NBCI between February 13, 2020 and March 22, 2020. ECF 13-2, ¶ 8. Id. at 8. The IGO reasoned that “[r]estrictions on inmate gatherings in response to heightened security concerns” are permissible, within the ordinary incidents of prison life.4 Further, the IGO said: “[D]ue to pandemic conditions, congregate services have been suspended.” Id. On March 21, 2020, while Pevia was pursuing the ARP referenced above, he filed a second ARP: NBCI-0675-20. There, he complained that, since March 5, 2020, he had been denied access

to Native American worship services and that the denial breached his settlement agreement. ECF 1 at 2; ECF 1-1 at 9. The ARP was denied at the institutional level. Id. It was noted that at the time the ARP was filed Pevia was assigned to HU 2 and “Inmates assigned to HU2 are permitted to attend congregate services with other inmates who are also assigned to HU2.” ECF 1-1 at 9. But, the denial further noted that on March 22, 2020, Pevia was assigned to HU 1, i.e., disciplinary segregation, and inmates so assigned “are not permitted to exit the building to attend congregate religious services. . . .” Id. On appeal of the denial, Pevia argued that his assignment to HU 1 did not explain why he was not permitted to attend religious services while assigned to general

population. Id. at 11. Pevia’s appeals to the Commissioner and then to the IGO were denied. ECF 1 at 4. B. Defendants’ response Lt. White explains in his Declaration (ECF 13-2) that religious preference forms are used to identify an inmate’s preferred religion. Id. ¶ 5. Because Pevia had already identified his religious preference as Native American, had he submitted the forms as alleged, Chaplain Lamp would not need to take any action because Pevia was already identified as a Native American. Id.

4 The IGO did not specify what restrictions on inmate gatherings were in place or what heightened security concerns existed. Further, NBCI’s 2020 Inmate Handbook instructs inmates who are released from special confinement housing (such as disciplinary segregation) and who wish to return to their faith’s pass list to notify the Administrative Chaplain by: 1) writing a request form to the Chaplain requesting to be returned to the service list; or 2) notifying the facilitator of that faith group of the desire to be placed back on the service list. Id. ¶ 6; ECF 13-3 at 2; ECF 13-4, ¶ 5. Pevia did not follow the

proper procedure to be added back to the Native American service pass list. ECF 13-2, ¶ 12.

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