Koenig v. State of Maryland et al

Filing 38

MEMORANDUM. Signed by Judge J. Frederick Motz on 8/6/13.(c/m af 8/6/13) (amf, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

BRUCE W. KOENIG, #288937
Plaintiff,
v.

*
* CIVIL ACTION NO. JFM-12-1087

STATE OF MARYLAND, et al.
Defendants.

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*****

MEMORANDUM
Procedural History
This complaint for injunctive relief and damages, alleging the failure to accommodate
plaintiff’s hearing and mobility disabilities, was received for filing on April 5, 2012, Plaintiff
claims that he was not provided special accommodations for his disabilities affecting his day-today prison activities1 and at his Inmate Grievance Office (“IGO”) hearings before Administrative
Law Judges (“ALJs”). He alleges violations under 42 U.S.C. § 1983, Title II of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq., and the Rehabilitation Act of 1973
(“RHA”). ECF No. 1.
Defendants have filed a motion to dismiss or, in the alternative, motion for summary
judgment.2 ECF No. 24. Although afforded several extensions of time, plaintiff has not filed a

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Plaintiff complains that he has been discriminated against due to his disability (deafness)
in daily activities involving prison visitation, telephone usage, use of electronic appliances and the prison
public address system, communicating with other inmates, and assisting other inmates and presenting his
case at IGO hearings. ECF No. 1. He further complains that for a period of time he was denied a kitchen
job because of his use of a cane. Id.
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All defendants have been served with the exception of the “Office of Administrative
Hearings.” In light of the decision of the court, the complaint against that defendant shall be dismissed.

response.3 The case is ready for consideration and the motion may be determined without oral
hearing. See Local Rule 105.6. (D. Md. 2011).
Standard of Review
Because matters outside the pleadings will be considered, defendants’ motion shall be
treated as a motion for summary judgment. 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.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
The “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 “view the evidence in the light most favorable to ... the nonmovant, and draw
all reasonable inferences in [his] 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 “affirmative obligation of the trial judge to prevent
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Defendant’s motion for summary judgment was filed on December 4, 2012. Plaintiff was
granted five separate extensions and was to file an opposition by July 15, 2013. On August 2, 2013, the
court received yet another motion for extension of time, dated by plaintiff on July 31, 2013. ECF No. 37.
The motion shall be denied. Plaintiff has been provided over seven months to file an opposition and no
further extensions shall be granted.

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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)).
In Anderson, 477 U.S. at 249, the Supreme Court explained that in considering a motion
for summary judgment, the “judge’s function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.” A dispute
about a material fact is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. at 248. Thus, “the judge must ask himself not whether he
thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury
could return a verdict for the [nonmoving party] on the evidence presented.” Id. at 252.
The moving party bears the burden of showing that there is no genuine issue as to any
material fact. No genuine issue of material fact exists if the nonmoving party fails to make a
sufficient showing on an essential element of his or her case as to which he or she would have
the burden of proof. See Celotex Corp., 477 U.S. at 322–23. Therefore, on those issues on which
the nonmoving party has the burden of proof, it is his or her responsibility to confront the
summary judgment motion with an affidavit or other similar evidence showing that there is a
genuine issue for trial.
Analysis
According to the unopposed record, plaintiff is serving two sentences without the
possibility of parole and is currently housed at the North Branch Correctional Institution
(“NBCI”).

They state that his sentence renders him ineligible for diminution credits.

Correctional Case Management Specialist (“CCMS”) John White, Officer-in-Charge Sergeant
Jeffrey Brewer, Physician’s Assistant Jonas Merrill, and Nurses Dawn Hawk and Jodie Maiers

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affirm that: (1) plaintiff was reclassified from the dietary department after he failed a physical;
(2) plaintiff responds to questions without difficulty and does not indicate any problem when
hearing CCMS White talk in a normal tone; (3) plaintiff has no difficulty hearing Sergeant
Brewer talk to him in a normal tone or in hearing, conversing with other prison staff, or talking
to other inmates; and (4) plaintiff hears and responds “appropriately” to medical personnel and
has a mild hearing loss. ECF No. 24, White, Brewer, Merrill, Hawk, Maiers Decls. Defendants
acknowledge, however, that plaintiff underwent an audiology exam in August of 2012, and
tested as having no hearing in both ears. ECF No. 24, Ex. F. They maintain that the only
“sensible” explanation for this result, in light of the testimony of so many people who have come
into contact with plaintiff, is that he “faked” his responses to the testing.
Defendants allege that of the ninety-eight administrative remedy procedure (“ARP”)
requests filed by plaintiff from May 30, 2008 to September 27, 2012, only two concerned his
hearing disability claim. The first was withdrawn in 2008 and the second was filed after the
submission of this case. Id., Ex. G.

They further assert that plaintiff has written the Warden

four times about his hearing deficiency and the Warden has responded in each instance. Id. The
Executive Director of the IGO states that plaintiff filed a total of 41 grievances with the IGO, 5
of which concern his hearing deficiency. Id., Ex. K. It does not appear that any of those 5
grievances were exhausted. Id.
Finally, defendant Ellsworth, who was the Correctional Dietary Supervisor at NBCI,
affirms that plaintiff worked in dietary department and had no difficulty hearing him. Id.,
Ellsworth Decl. Ellsworth recommended that plaintiff be reassigned because plaintiff told him
he required constant use of the cane, which presented a safety and security issue. Id. This
recommendation was, however, overruled and plaintiff worked in the dietary department,

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assigned to a less strenuous job working in the correctional officer meal area. Id. Plaintiff was
eventually reclassified to a different job, through no action of defendant Ellsworth, because of
his inability to pass a physical. Id.
Defendants claim that the complaint is subject to dismissal for the failure to exhaust
administrative remedies. Title 42 U.S.C. § 1997e(a) provides that A[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 phrase Aprison conditions@ encompasses Aall 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).
Proper exhaustion of administrative remedies demands compliance with an agency=s deadlines
and other critical procedural rules because Ano adjudicative system can function effectively
without imposing some orderly structure on the course of its proceedings.@ Woodford v. Ngo,
126 S.Ct. 2378, 2385-86 (2006). Exhaustion under § 1997e(a) is not a jurisdictional requirement
and does not impose a heightened pleading requirement on the prisoner. Rather, the failure to
exhaust administrative remedies is an affirmative defense to be pleaded and proven by
defendant(s). See Jones v. Bock, 127 S.Ct. 910, 919-22 (2007); Anderson v. XYZ Correctional
Health Services, Inc., 407 F.2d 674, 682 (4th Cir. 2005).
Defendants assert that while plaintiff has filed numerous grievances, he filed only two
ARPs regarding his hearing deficiencies and did not fully exhaust those claims through the ARP
process. They further allege that five grievances were filed with the IGO concerning his hearing
problem and none was exhausted. Defendants seek dismissal of the complaint on this ground.
The court concurs with this argument. Summary judgment shall be granted. A separate order

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effecting the rulings made in this opinion is entered herewith.4

Date: August 6, 2013

__/s/____________________
J. Frederick Motz
United States District Judge

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Defendants’ arguments, which are premised on the uncontroverted briefing provided to
this court, allege that plaintiff does not have a significant disability that substantially limits a major life
activity and he is not a disabled person under the ADA or RA.
Title II of the ADA, 42 U.S.C. § 12131, et seq., prohibits qualified individuals with disabilities
from being excluded from participation in or being denied the benefits of the services, programs or
activities of a public entity. Title II of the ADA applies to inmates in state prisons. See Pennsylvania
Dep't of Corrections v. Yeskey, 524 U.S. 206, 213 (1998). Cases interpreting the language of the ADA
and that of the RHA have concluded that the applicable legal tests created by these statutes are
interchangeable for analytical purposes. See Calloway v. Boro of Glassboro Dep't of Pol., 89 F.Supp.2d
543, 551 (D. N.J. 2000). To state a claim for violation of either the RHA or the ADA, the plaintiff must
show that (s)he (1) has a disability, (2) is otherwise qualified to participate in a program, and (3) was
denied the benefits of the program or discriminated against because of the disability. See Millington v.
Temple Univ. Sch. Of Dentistry, 261 Fed. App. 363, 365 (3rd Cir. 2008). A physical condition may
qualify as a Adisability@ within the meaning of the ADA and RHA because it Asubstantially limits one or
more ... major life activities.@ 42 U.S.C. § 12102; 29 U.S.C. § 705(20)(B); see also Heiko v. Columbo
Savings Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006).
While the court finds defendants’ claim that plaintiff must have “faked“ the results of his
audiology exam to be specious at best, there is no dispute that he is able to complete major life activities.
He has failed to show he qualifies with a disability under the ADA or RHA.

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