Tuell v. Commissioner of Corrections et al

Filing 42

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 8/19/2015. (c/m 8/19/2015)(ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANDREW D. TUELL,
Plaintiff,
v.

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COMMISSIONER OF CORRECTIONS
WARDEN BOBBY SHEARIN
Defendants.

CIVIL ACTION NO. RDB-14-1283

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MEMORANDUM OPINION
Pending is a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment
filed by Defendants, Commissioner of Corrections1 and Bobby Shearin, the former Warden of
North Branch Correctional Institution (“NBCI”). ECF 14.2 Plaintiff Tuell has responded and
Defendant Shearin has replied. ECF 26, 36 & 41.3 Upon review of papers and exhibits filed, the
Court finds an oral hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014). For
the reasons stated below, the dispositive motion, construed as a motion for summary judgment,4
will be granted, and judgment will be entered in favor of Defendant Shearin.
Background

1

Tuell previously sought and was granted the opportunity to withdraw his Complaint against the Commissioner of
Corrections. ECF 25 & 29. Thus, Shearin is the only remaining defendant in this case.
2

Also pending is Tuell’s Motion to Strike (ECF 22) wherein he seeks to strike Defendants’ defense of qualified
immunity as “insufficient.” The Motion will be denied, and instead will be considered as an additional opposition to
Defendant’s dispositive motion.
3

4

Tuell’s responses include a surreply. ECF 41.

Defendant argues that Tuell failed to exhaust administrative remedies and that his allegations fail to raise a
constitutionally cognizable claim. Both arguments if proven give rise to dismissal; as presented here, however,
Shearin’s reliance on materials outside the pleadings converts the dispositive pleadings as a motion for summary
judgment. See Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998) (“When matters
outside the pleading are presented to and not excluded by the court, the [12(b)(6)] motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56.”) (alteration in original) (quoting Fed. R. Civ. P. 12(b))
(internal quotation marks omitted).

In order to save energy costs during cold weather, the windows at NBCI are bolted shut
from the outside. Tuell complains that during February and March of 2013, he was unable to
open his cell window to bring in fresh air and neutralize the effect when a chemical agent was
used in his housing tier. ECF 1, p. 2. Tuell states that the ventilation system at NBCI moves air
from one cell to another and does not pull any clean air into the cell. Id. Tuell, who suffers from
asthma, was forced to use his albuterol inhaler and cold water to minimize the effects of the
chemical agent. Id., p. 2.
Tuell also complains that sealing the windows creates additional health risks because
inmates are forced to eat, wash, and defecate in the same unventilated area. Id., p. 3 He further
states that because of the manner in which the thermostat is controlled, the cells become
extremely hot. Id. Tuell names Warden Shearin as a defendant because Shearin “gave the order”
to bolt the windows. Id. He indicates that he filed an administrative remedy request (“ARP”)
regarding these problems and was advised to contact medical personnel regarding any health
concerns.
Defendant Shearin has responded. During the relevant period, Tuell was housed on
Block 1, Tier B, on disciplinary segregation. ECF 14-2, pp. 3.5 Records reflect that pepper spray
was used in Tuell’s housing unit at the times about which he complains. ECF 14-2, pp. 4-7.
Acting Correctional Maintenance Manager, Major Edward Twigg avers that he inspected
the maintenance records made and maintained by the Department of Public Safety and
Correctional Services (“DPSCS”) and found no instance of complaints regarding air ventilation
occurring in Tuell’s housing unit on any of the dates about which Tuell complains. ECF 14-3;
14-4. Twigg avers that each of NBCI’s housing units is equipped with a ventilation system that
brings in outside air, and each cell has an exhaust vent. ECF 14-3. DPSCS contracts with an
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Citations are to the Court’s electronic docket.

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independent contractor to test the air flow within each of its facilities every three years. The
previous test demonstrated that NBCI meets the standards of the American Correctional
Association (“ACA”) ventilation guidelines. ECF 14-3; 14-5.

Additionally, DPSCS has a

preventative maintenance protocol that requires additional testing every four months to ensure
the ventilation systems continue to function properly. ECF 14-3.
Tuell’s medical records demonstrate that he has experienced symptoms of asthma since
1999. ECF 14-6, p. 14. During a chronic care visit on February 14, 2013, Tuell’s asthma was
described as mild, intermittent and exercise induced. Aggravating factors included changes in
weather, exercise, and pollen, and Tuell’s symptoms were relieved with a beta-agonist inhaler.
Symptoms included a dry cough, nocturnal asthma and awakenings with wheezing, and
palpitations. Id. Tuell was examined on February 26, 2013, by Dr. Colin Ottey for follow-up
regarding urinary dysfunction. Id., pp. 17-18. No note was made during this visit regarding
asthma complaints.
Tuell submitted a sick call slip, received on March 8, 2013, claiming he suffered an
asthma attack brought on by the use of pepper spray in his housing unit. Id., p. 22. He was
treated for asthma symptoms, as well as right ear bleeding, a rash to chest, and dry skin. Id., pp.
23-24. The nurse noted equal and unlabored respiration and no use of accessory muscles or
audible wheezing.

Tuell was encouraged to use asthma inhalers as ordered and to report

difficulty breathing immediately to officers on his tier. Id., p. 23. The nurse’s assessment was
“Anxiety r/t perceived medical diagnosis.” Id. On March 17, 2013, Tuell was seen again for ear
discomfort. Id., pp. 25-26.
On March 21, 2013, Tuell voiced concerns regarding indirect exposure to the use of
pepper spray on the tier exacerbating his asthma condition by telling a nurse his asthma flared

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roughly twice a week when pepper spray use occurred on the tier. Id., p. 30. He also stated that
the tier had poor ventilation. Id. Tuell was advised to increase his fluid intake, discuss his
concerns with the healthcare provider at his next chronic care follow-up, continue his
medication, and place a sick-call request if symptoms did not subside.6 Id., p. 32.
On March 25, 2013, Physician Assistant Greg Flury treated Tuell for a urinary problem
and concerns regarding his asthma. Id., pp. 34-35. Flury noted “The Patient has chronic [history]
asthma, states sx [sic] flares when exposed to pepper spray on tiers. Pati[ient] was educated that
medical dept is unable to control the facilities.…” Id., p. 34. Physical examination of Tuell’s
nose, mouth and throat revealed no nasal deformity or mucosal lesions, and the tongue and throat
appeared normal. Id. Tuell’s lungs were clear to auscultation and percussion. Id.
A memorandum from former Chief of Security Frank B. Bishop, Jr., dated April 1, 2009,
outlines the policy regarding exterior cell windows, which are to be closed on or about
November 1 and reopened on or about April 1. The policy exists to limit cost and energy waste
during the colder months. ECF 14-2, p. 7.

The memorandum indicates that if an inmate

believes he has a medical issue he could submit a sick call request in order to be evaluated. Id.
Plaintiff has not sought a medical order that he be permitted to open his exterior cell
window due to a medical condition. ECF 14-6.
Standard of Review
A.

Motion to Dismiss
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the

sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243
(4th Cir. 1999).

The dismissal for failure to state a claim upon which relief may be granted

6

Tuell notes that medical staff advised that they were unable to control institutional decisions. ECF 41, p. 4. He
offers no evidence that as a matter of medical necessity his cell window should have been opened. Id.

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does not require defendant to establish Abeyond doubt@ that plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. See Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 561 (2007). Once a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint. Id. at 563. The Court need not,
however, accept unsupported legal allegations, see Revene v. Charles County Comm'rs, 882 F.2d
870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, see Papasan v. Allain,
478 U.S. 265, 286 (1986).
B.

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.
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
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
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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)).
In considering a motion for summary judgment, the Ajudge=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.@ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) A dispute
about a material fact is genuine Aif the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.@ Id. at 248. Thus, Athe 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. v. Catrett, 477 U.S. 317, 322-23 (1986). 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
A. Exhaustion of Claims

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Shearin has raised an affirmative defense, arguing that Tuell failed to exhaust his
administrative remedies prior to filing suit.7 The Prisoner Litigation Reform Act (“PLRA”)
provides, in pertinent part:
(a) Applicability of administrative remedies
No action shall be brought with respect to prison conditions under
section 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.
42 U.S.C. '1997e.
The Supreme Court has interpreted the language of this provision broadly; holding that
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). Thus, the exhaustion provision
plainly extends to Tuell=s allegations, and his Complaint must be dismissed, unless he can show
that he has satisfied the administrative exhaustion requirement under the PLRA or that Shearin
has forfeited the right to raise non-exhaustion as a defense. See Chase v. Peay, 286 F.Supp.2d
523, 528 (D. Md. 2003).
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
(AARP@) process provided by the Division of Correction to its prisoners. If this request is denied,
the prisoner must appeal to the Commissioner of Correction. If this appeal is denied, the prisoner
has thirty days in which to file an appeal to the Executive Director of the Inmate Grievance
Office (AIGO@). See Md. Code Ann. Corr. Serv. '' 10-206, 10-210; Md. Regs. Code title 12 '
07.01.03.

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See Jones v. Bock, 549 U.S. 199, 216–17 (2007) (failure to exhaust is an affirmative defense and inmates are not
required to demonstrate exhaustion in their complaints).

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Administrative remedies must, however, be available to the prisoner and this Court is
“obligated to ensure that any defects in administrative exhaustion were not procured from the
action or inaction of prison officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th
Cir. 2007). The Fourth Circuit has addressed the meaning of Aavailable@ remedies:

[A]n administrative remedy is not considered to have been available if a prisoner,
through no fault of his own, was prevented from availing himself of it. See
Aquilar-Avellaveda v. Terrell, 478 F. 3d 1223, 1225 (10th Cir. 2007); Kaba v.
Stepp, 458 F. 3d 678, 684 (7th Cir. 2006). Conversely, a prisoner does not exhaust
all available remedies simply by failing to follow the required steps so that
remedies that once were available to him no longer are. See Woodford v. Ngo, 548
U.S. 81, 89 (2006). Rather, to be entitled to bring suit in federal court, a prisoner
must have utilized all available remedies Ain accordance with the applicable
procedural rules,@ so that prison officials have been given an opportunity to
address the claims administratively. Id. at 87. Having done that, a prisoner has
exhausted his available remedies, even if prison employees do not respond. See
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
Moore v. Bennette, 517 F. 3d 717, 725 (4th Cir. 2008); see also Blake v. Ross, 787 F.3d 693,
700-01 (4th Cir. 2015).
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.8 Chase v. Peay, 286 F. Supp. 2d 523, 530 (D. Md. 2003); 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) (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
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Three purposes underlie the PLRA’s exhaustion requirement: “allowing a prison to address complaints about the
program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily
resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Jones v. Bock,
549 U.S. 199, 219 (2007).

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exhaustion requirement, but need not seek judicial review). Exhausting administrative remedies
after a complaint is filed will not prevent a case from being dismissed for failure to exhaust
administrative remedies, see Neal v. Goord, 267 F. 3d 116, 121-22 (2d Cir. 2001) (overruled on
other grounds), as it is a precondition to filing suit in federal court. Freeman v. Francis, 196 F.3d
641, 645 (6th Cir. 1999).
Applying the PLRA exhaustion requirements here, Tuell’s claims must be dismissed if
he failed to exhaust available remedies prior to bringing this suit. Tuell filed two ARPs regarding
his concerns that his health was affected by pepper spray deployed on the tier while the windows
were bolted shut and the tier lacked fresh air and proper ventilation. See NBCI 2888-12 and
NBCI-0590-13, ECF 14-7.

Both grievances were dismissed as without merit.

Id.

Tuell

appealed the dismissal of ARP NBCI 0590-139 on July 24, 2013, but the IGO dismissed the
appeal on November 1, 2013, after Tuell failed to provide copies of the required ARP
paperwork.10 ECF 14-8, p. 4. Tuell filed no ARP regarding the temperature in his cell. ECF 147.
Tuell claims that he exhausted all available administrative remedies because his effort to
appeal to the Commissioner was never acknowledged.11 ECF 26-1, p. 6; ECF 41, p. 5. Tuell
also avers that the issues raised in his ARPs regarding the windows and ventilation system were
not addressed on the merits through the ARP process and the IGO has not provided the Court his
original grievance so that it could be determined what he appealed. He further notes that he
9

There appears to be a typographical error in the reference to the ARP as it is referred to as NBIC-0593-13. See
ECF14-8, p. 3.

10

This requirement is set out in COMAR 12.07.01.04(B)(9)(a).

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Tuell notes that he filed ARP NBCI 1084-13, complaining of the inability for a grievant to show proof of
appealing an ARP dismissal to the Commissioner where no receipt is provided. ECF 26-1, p. 3. This appeal
concerning the ARP process was submitted to the IGO on June 21, 2013, and dismissed on August 7, 2013 as
frivolous. Tuell was advised to use certified mail as a means to verify delivery and receipt of ARP appeals. ECF
14-8, p. 3; ECF 36, Ex. 2.

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received no response from the Commissioner. ECF 26-2.
These deficiencies on the part of prison administrators, even if true, are not material to
the determination of whether Tuell exhausted his administrative remedies. In his declaration,
IGO Executive Director Scott Oakley states that Tuell filed an appeal from the disposition of an
ARP complaint regarding the locked windows on the tier. ECF 14-8. As previously noted, the
grievance was administratively dismissed after Tuell failed to provide the related ARP
paperwork as directed. Tuell offers no explanation for his failure to respond to the IGO’s
request; indeed, it appears that Tuell simply ignored the request.12
Tuell failed to exhaust available administrative remedies as to all the claims presented in
his Complaint. The Complaint is therefore subject to dismissal.
B.

Failure to State Claims
Had Tuell properly exhausted his administrative remedies, his claims nevertheless would

fail.

While conditions which "deprive inmates of the minimal civilized measure of life's

necessities" may amount to cruel and unusual punishment, Rhodes v. Chapman, 452 U. S. 337,
347 (1981), conditions which are merely restrictive or even harsh, "are part of the penalty that
criminal offenders pay for their offenses against society."

Id.

In order to establish the

imposition of cruel and unusual punishment, an inmate must prove two elements - that “the
deprivation of [a] basic human need was objectively sufficiently serious,' and that 'subjectively
the officials acted with a sufficiently culpable state of mind.” Shakka v. Smith, 71 F.3d 162, 166
(4th Cir. 1995) (emphasis in original; citation omitted). “These requirements spring from the
text of the amendment itself; absent intentionality, a condition imposed on an inmate cannot
properly be called “punishment,” and absent severity, such punishment cannot be called ‘“cruel
12

Tuell states that the lack of response from the Commissioner was the problem he sought to present to the IGO;
therefore, there was no paperwork to attach. Tuell fails to address why he did not present this conundrum to the
IGO and/or why he failed to provide the original grievance paperwork. See ECF 41, p. 5.

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and unusual.’” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008), citing Wilson v. Seiter, 501 U.S.
294, 298-300 (1991).
To establish a sufficiently culpable state of mind, there must be evidence that a known
excessive risk of harm to the inmate’s health or safety was disregarded. See Wilson, 501 U. S. at
298. In other words, “the test is whether the guards know the plaintiff inmate faces a serious
danger to his safety and they could avert the danger easily yet they fail to do so.” Brown v. North
Carolina Dept. of Corrections, 612 F.3d 720, 723 (4th Cir. 2010), quoting Case v. Ahitow, 301
F.3d 605, 607 (7th Cir. 2002). Conduct is not actionable under the Eighth Amendment unless it
transgresses bright lines of clearly-established pre-existing law. See Maciariello v. Sumner, 973
F. 2d 295, 298 (4th Cir. 1992).
The objective prong of a conditions claim requires proof of an injury. "[T]o withstand
summary judgment on an Eighth Amendment challenge to prison conditions a plaintiff must
produce evidence of a serious or significant physical or emotional injury resulting from the
challenged conditions." Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993). “Only
extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment
claim regarding conditions of confinement.” De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir.
2003). Demonstration of an extreme deprivation proscribed by the Eighth Amendment requires
proof of a serious or significant physical or emotional injury resulting from the challenged
conditions. See Odom v. South Carolina Dept. of Corrections, 349 F. 3d 765, 770 (4th Cir.
2003).
Defendant’s actions are not actionable unless “in light of preexisting law the
unlawfulness of those actions is apparent.” Iko, 535 F. 3d at 238, citing Anderson v. Creighton,
483 U.S. 635, 640 (1987). “We do not require of such officials the legal knowledge culled by

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the collective hindsight of skilled lawyers and learned judges, but instead only the legal
knowledge of an objectively reasonable official in similar circumstances at the time of the
challenged conduct.” Johnson v. Caudill, 475 F. 3d 645, 650 (4th Cir. 2007).
Applying these standards here, this Court finds that the conditions described by Tuell
were not so severe that Shearin could be charged with “fair warning that [his] conduct was
unconstitutional.” Ridpath v. Bd. of Governors Marshall Univ., 447 F. 3d 2929, 313 (4th Cir.
2006). The discomfort Tuell experienced while housed at NBCI was restrictive and harsh, but
did not impose cruel and unusual punishment. This conclusion is supported by the absence of
proof of significant, serious physical or psychological injury resulting from the conditions
described. It is not the province of this Court to determine how a particular prison might be
more beneficently operated; the expertise of prison officials must be given its due deference. See
Sandin v. Conner, 515 U.S. 472, 482 (1995). Shearin is entitled to summary judgment on this
claim.
Conclusion
Defendant Shearin’s dispositive motion will be granted. A separate Order follows.

Date: August 19, 2015

/s/
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

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