Citations
- 383 F. Supp. 3d 519
Full opinion text
Richard D. Bennett, United States District Judge
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") 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 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; 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
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, 167 L.Ed.2d 686 (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; PSJ 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.)
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 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. 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, 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. 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 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, 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.)
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 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.
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505. 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, 106 S.Ct. 2505. Trial courts in the Fourth Circuit have an "affirmative obligation ... to prevent factually unsupported claims 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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (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, 134 S.Ct. 1861, 188 L.Ed.2d 895 (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 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, 127 L.Ed.2d 114 (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 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, 87 L.Ed.2d 114 (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, 105 L.Ed.2d 45 (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, 109 S.Ct. 2304. 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 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. Arizonans for Official English v. Arizona , 520 U.S. 43, 69, 117 S.Ct. 1055, 1070, 137 L.Ed.2d 170 (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, 87 L.Ed.2d 114 (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, 52 L.Ed.2d 72 (1977), the Supreme Court declared that prisoners have a constitutionally protected right to access the courts. 430 U.S. at 821, 97 S.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, 135 L.Ed.2d 606 (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, 135 L.Ed.2d 606 (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 "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 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 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, 49:7-53:17.) 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. 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, 153 L.Ed.2d 413 (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 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, 105 S.Ct. 1938, 85 L.Ed.2d 254 (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 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 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). 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. 132:6-8.) 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 , --- U.S. ----, 136 S.Ct. 1850, 1858, 195 L.Ed.2d 117 (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 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, 116 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-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.") (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. , 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, 128 L.Ed.2d 811 (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 'a duty to protect prisoners from violence at the hands of other prisoners.' " Id. (quoting Farmer , 511 U.S. at 832, 834, 114 S.Ct. 1970 ). "[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, 125 L.Ed.2d 22 (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, 125 L.Ed.2d 22 (1993) ("It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening 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 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, 69 L.Ed.2d 59 (1981) (holding that district court's factual findings cut against its conclusion 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 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.
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 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 double-celling. 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 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 substa