Alston v. Shearin et al

Filing 25

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 5/8/12. (c/m 5/10/12 apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
THOMAS F. ALSTON, #327-171
Plaintiff,

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v.

Civil No. RDB-11- 1503
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WARDEN BOBBY P. SHEARIN
ASSISTANT WARDEN RICHARD
GRAHAM, JR.
COREY McKENZIE1
SGT. ANDREW McKINNEY
CO II RYAN HESELBACH
CO II ANTHONY FAZENBAKER. Jr.
PHILLIP NELSON
UNIDENTIFIED OFFICERS
Defendants

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MEMORANDUM OPINION

Pending is a dispositive motion filed on behalf of Defendants Shearin, Graham,
McKenzie, McKinney, Heselbach and Fazenbaker (ECF Nos. 15 and 16), which shall be
construed as a motion for summary judgment pursuant to Fed. R. Civ. Pro. 56.2 Plaintiff Alston
has filed opposition to the motion3 (ECF No. 19), to which Defendants have replied. ECF No.
23. Upon review of the papers filed, the court finds a hearing in this matter unnecessary. See
Local Rule 105.6 (D. Md. 2011).

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The Clerk shall amend the docket to reflect the full and proper spelling of Defendants’ names.

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The unidentified officers are subject to dismissal from this action. Defendant Nelson is no longer employed by the
Maryland Division of Correction and has not been served with summons and complaint. For reasons set forth
herein, had Nelson and any “unidentified officers” been served, each would have been entitled to summary
judgment.
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Plaintiff’s objection to Defendants’ request for an extension of time (ECF No. 22) is denied.

Background

Plaintiff, housed at North Branch Correctional Institution (“NBCI”), Maryland’s
maximum security prison, makes several claims stemming from an incident that began on April
23, 2011. Plaintiff claims that he was subjected to a “humiliating strip search in full view of
several others” and that correctional officers violated Division of Correction (“DOC”) policy by
conducting a search of his cell outside of his presence. He also alleges that some of his property
was improperly confiscated and that excessive force was used against him when he refused to
allow correctional officers to lock his “food slot” on his cell door while he argued with them
concerning items removed from his cell during the search.4 Finally, Plaintiff alleges that he was
denied medical treatment on April 23, 2011, when Defendant McKenzie ignored his request for
medical attention, and again on April 30, 2011, when McKenzie and Defendant Fazenbaker
refused his request for medical attention. Plaintiff seeks money damages and a “preliminary and
permanent injunction ordering defendants [] to be placed out [of] the unit” in which he is housed.
ECF No. 1 at 12.
Record evidence indicates that on April 23, 2011, Plaintiff was confined to NBCI’s
disciplinary segregation Housing Unit (“HU”) 1, A tier, cell no. 37 (“HU 1-A-37”). ECF No. 16,
Exhibit A, Declaration of Sgt. McKenzie, at ¶ 2; see also Exhibit B, Division of Correction
Directive (“DCD”) 110-6.IV.A. At approximately 7:30 p.m., McKinney approached the cell of
inmate Desmond Bright, housed in cell no. HU 1 1-A-35, to serve him with paperwork regarding

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Specifically, Plaintiff alleges that Defendant McKenzie “closed [Plaintiff’s] whole right arm up to [his] shoulder in
the slot,” and that “officers bent [his] fingers back, twisted [his] wrist, pushed [his] hand back to [his] back
forearm.”. Plaintiff alleges that Defendants McKinney and Heselbach “helped [Sgt. Mckenzie] force the slot close
[sic] on [his] arm while trying to push [his] arm back in …” ECF No. 1 at 8.

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the confiscation of some of his property. Id., Exhibit C, Declaration of CO McKinney, at ¶2. As
McKinney approached Bright’s cell, he observed a homemade “fishing line” coming out from
under the cell door. Id. The “fishing line”, used by inmates to pass contraband or messages to
one another, was attached to another fishing line that was coming from Plaintiff’s cell door, HU
1-A-37, which was separated from Bright’s cell by one other cell, HU-1-A-36, and on the same
side of the tier. Id. McKinney grabbed the fishing line, a thin piece of a sheet, and ripped it to
break the line before it could be pulled back into to a cell. Id. He noticed a small white envelope
stuck to the bottom of Plaintiff’s cell that contained a homemade weapon, a five-and-a-half inch
piece of metal with a sharpened edge and three inches of the metal wrapped in a bed
sheet. Id. McKinney took custody of the weapon and notified McKenzie of the incident. Id.
As a weapon had been found, McKenzie ordered both cells (HU 1-A-35 and HU 1-A-37)
searched for contraband. Id., Exhibit A, ¶ 3-4. Plaintiff was handcuffed behind his back, and
taken to the HU 1 B-tier Education Booth for the purpose of conducting a strip search for other
weapons or contraband. Id., Exhibit A, ¶ 4, Exhibit C, ¶ 4, Exhibit B, DCD 110-6.VI.C (1)-(3)
(inmates on disciplinary segregation shall be handcuffed behind the back whenever they are out
of their cells, and shall be physically escorted by custody staff). The strip search was conducted
by McKenzie, CO Brandon Caple (not a party to this action), Defendant Heselbach, and
McKinney. Id., Exhibit A, ¶ 4, Exhibit C, ¶ 4, Defendants’ Exhibit D, Declaration of CO
Heselbach, ¶ 4. No other officers or inmates were present during the strip search. Id., Exhibit A,
¶ 7, Exhibit C, ¶ 7, Exhibit D, ¶ 7. Plaintiff, who was verbally aggressive toward the officers,
.was warned that if his behavior continued he would remain in the Educational Booth during the

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search of his cell. Exhibit A, ¶ 6, Exhibit C, ¶ 6, Exhibit D, ¶ 6. The misconduct continued and
Plaintiff was not allowed to be present during the search of his cell. Id.
At approximately 8 p.m., Heselbach and McKinney searched Plaintiff’s cell, where they
found items which a disciplinary segregation inmate cannot possess, including finger nail
clippers, a compact disc, and a hardcover book. Id., Exhibit A, ¶ 11, Exhibit C, ¶ 11, Exhibit D, ¶
11; see also Defendants’ Exhibit E (Notice of Confiscation and Inmate Personal Property
Disposition). A confiscation of property form was completed which Plaintiff signed, noting no
discrepancies. Id., Exhibit A, ¶ 12, Exhibit C, ¶ 12, Exhibit D, ¶ 12; Exhibit E. Officers also
found and removed trash in Plaintiff’s cell, including several empty milk cartons, cardboard, and
empty hygiene containers. Id., Exhibit A, ¶ 13, Exhibit C, ¶ 13, Exhibit D, ¶ 13.
McKenzie, Heselbach, and McKinney escorted Plaintiff back to his cell, at which time
Plaintiff stated he wanted his trash returned to his cell. The request was denied. Id., Exhibit A, ¶
14. Plaintiff entered his cell and with his back to the cell door, put his hands through the food
slot to have his handcuffs removed. Id., Exhibit A, ¶ 15, Exhibit C, ¶ 14, Exhibit D, ¶ 14. Once
Plaintiff’s handcuffs were removed, Plaintiff turned around to face the cell door and pushed on
the food slot enough to prevent McKinney from locking the food slot. Id., Exhibit A, ¶ 17,
Exhibit C, ¶ 16, Exhibit D, ¶ 16. Heselbach and McKinney held the food slot door closed while
McKenzie ordered Plaintiff to stop pushing on the food slot door so it could be locked, but
Plaintiff refused to comply. Id., Exhibit A, ¶ 18, Exhibit C, ¶ 17, Exhibit D, ¶ 17. A prisoner’s
refusal to close his food slot is considered a threat to harm institutional staff, property, and/or
other inmates. Id., Exhibit A, ¶ 19, Exhibit C, ¶ 18, Exhibit D, ¶ 18; see also Plaintiff’s Exhibit
B, p.2 (“[HU] #1 Segregation Unit Inmate Orientation Guide,” NBCI.ID.110.0006.1, Appendix

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3). Plaintiff then stopped pushing on the food slot door and the officers were able to lock it. Id.,
Exhibit A, ¶ 20, Exhibit C, ¶ 19, Exhibit D, ¶ 19. Defendants deny that Plaintiff’s arm, hand or
wrist was pinched or caught in the food slot. Id., Exhibit A, ¶ 21, Exhibit C, ¶ 20, Exhibit D, ¶
20. Plaintiff did not request medical treatment at any time during the incident. Id., Exhibit A, ¶
22, Exhibit C, ¶ 21, Exhibit D, ¶ 21; Complaint at 8, 11. Fazenbaker denies that Plaintiff
indicated he was “having intense chest pains,” complained of a heart condition, or requested
medical attention on April 30, 2011. Complaint at 10; see ECF No. 16, Exhibit F, Declaration of
CO Fazenbaker, ¶4.
On April 25, 2011, two days after the incident, Plaintiff filled out a “Sick Call Request.”
ECF No. 16, Exhibit G, Declaration of J. Gary Sindy, p. 1, ¶¶ 5-6;.p. , 2. Meredith Rathkamp,
R.N. assessed Plaintiff on May 1, 2011, at 9:20 a.m. Id., Exhibit H, Nurse note of Meredith
Rathkamp. Plaintiff complained his “shoulder is in a lot of pain and he cannot move it very
well.” However, the nurse observed “[n]o skin discoloration or swelling noted to right shoulder,
arm, or hand.” Id. Plaintiff stated that his [range of motion] is limited,” and the nurse found that
his “grip to right hand appear[ed] weaker than left.” Id. An x-ray taken of Plaintiff’s right
shoulder on September 21, 2011, showed “no evidence of acute fracture, dislocation or
subluxation.” Id., Exhibit I, “X-Ray Requisition.” “Alignment is anatomical. [] No significant
abnormality seen.” Id.
The day the incident occurred, Plaintiff was issued a Notice of Inmate Rule Violation by
McKinney stemming from the homemade weapon found at the bottom of Plaintiff’s cell door.
Id., Exhibit J, Notice of Inmate Rule Violation and Disciplinary Hearing. The hearing officer
found Plaintiff not guilty of violating Rules 105 (prohibiting possession, use, or manufacture of a

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weapon) and 406 (prohibiting possession or passing of contraband), because Plaintiff’s “cell
mate claimed ownership of the weapon.” Id., Exhibit J at 7; see also COMAR 12.02.27.04.B.(5)
and E.(7).
Defendants indicate that Plaintiff never filed a request for administrative remedy
(“ARP”) concerning the allegations raised in the Complaint. ECF No. 16, Exhibits L and O.
Defendants raise this failure to exhaust administrative remedies as an affirmative defense in this
case.
Standard of Review

Summary Judgment is governed by Fed. R. Civ. P. 56(a) which provides that:
The 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.
The Supreme Court has clarified that this does not mean that any factual dispute will
defeat the motion:
By its very terms, this standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247-48 (1986) (emphasis in original).
AThe party opposing a properly supported motion for summary judgment >may not rest
upon the mere allegations or denials of [his] pleadings,= but rather must >set forth specific facts
showing that there is a genuine issue for trial.=@ Bouchat v. Baltimore Ravens Football Club, Inc.,
346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The
court should Aview the evidence in the light most favorable to….the nonmovant, and draw all
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inferences in her favor without weighing the evidence or assessing the witness= credibility.@
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court
must, however, also abide by the Aaffirmative obligation of the trial judge to prevent factually
unsupported claims and defenses from proceeding to trial.@ Bouchat, 346 F.3d at 526 (internal
quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and
citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
Analysis

Prior to examining the merits of the allegations, the Court must first examine Defendants’
assertion that Plaintiff’s case should be dismissed in its entirety due to Plaintiff’s failure to
exhaust available administrative remedies.

The Prison Litigation Reform Act [“PLRA”]

generally requires a prisoner plaintiff to exhaust administrative remedies before filing suit in
federal court. Title 42 U.S.C. § 1997e(a) provides that “[n]o action shall be brought with respect
to prison conditions under § 1983 of this title, or any other Federal law by a prisoner confined in
any jail, prison, or other correctional facility until such administrative remedies as are available
are exhausted.” The Supreme Court has interpreted the language of this provision broadly,
holding that the phrase “prison conditions” encompasses “all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Thus, the
exhaustion provision plainly extends to Plaintiff’s allegations. His complaint must be dismissed,
unless he can show that he has satisfied the administrative exhaustion requirement under the

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PLRA or that Defendants have forfeited their right to raise non-exhaustion as a defense. See
Chase v. Peay, 286 F.Supp.2d 523, 528 (D. Md. 2003).
The PLRA’s exhaustion requirement is designed so that prisoners pursue administrative
grievances until they receive a final denial of the claims, appealing through all available stages in
the administrative process. Chase, 582 F.Supp.2d at 530; Gibbs v. Bureau of Prisons, 986
F.Supp. 941, 943-44 (D. Md. 1997) (dismissing a federal prisoner’s lawsuit for failure to
exhaust, where plaintiff did not appeal his administrative claim through all four stages of the
BOP’s grievance process); Booth v. Churner, 532 U.S. 731, 735 (2001) (affirming dismissal of
prisoner’s claim for failure to exhaust where he “never sought intermediate or full administrative
review after prison authority denied relief”); Thomas v. Woolum, 337 F.3d 720, 726 (6th Cir.
2003) (noting that a prisoner must appeal administrative rulings “to the highest possible
administrative level”); Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (prisoner must
follow all administrative steps to meet the exhaustion requirement, but need not seek judicial
review).
In Maryland, filing a request for administrative remedy with the Warden of the prison in
which one is incarcerated is the first of three steps in the Administrative Remedy Procedure
(“ARP”) process provided by the DOC to its prisoners. If this request is denied, the prisoner
may file an appeal with the Commissioner of Correction. If this appeal is denied, the prisoner
must then file an appeal to the Executive Director of the Inmate Grievance Office (“IGO”). See
Md. Code Ann. Corr. Serv. §§ 10-206, 10-210; Md. Regs. Code title 12 §07.01.03.
Plaintiff asserts he need not comply with the exhaustion requirement because he “is in
imminent danger of serious physical injury.” ECF No. 1 at 12. Plaintiff is mistaken; under the

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DCDs he can file a remedy complaint with the Commissioner of Corrections instead of the
Warden if an emergency exists. Further, nothing in the record suggests he is endangered in any
way. Given Plaintiff’s total failure to pursue administrative remedies, his case must be dismissed.
Defendants’ dispositive motion shall be granted. A separate order follows.

___May 8, 2012______
Date

_____________/s/__________________________
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

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