Bishop v. Johnson et al

Filing 23

MEMORANDUM. Signed by Judge James K. Bredar on 7/13/2015. (c/m 7/14/15 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RONALD BISHOP,
Plaintiff
v.
WARDEN BETTY JOHNSON, et al.,
Defendants

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Civil Action No. JKB-14-2300

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MEMORANDUM
Ronald Bishop, Sr., (ABishop@) is an inmate currently confined at the Baltimore City
Correctional Center in Baltimore, Maryland. Bishop filed the instant civil rights complaint
while housed at the Dorsey Run Correctional Facility against Warden Betty Johnson, Case
Manager C. Session, Institutional Administrative Remedy (ARP) Coordinator K. Torney,
Officer Aload,1 and the Commissioner of Corrections. ECF 1. Bishop claims that his personal
property including legal materials were improperly confiscated from him on March 29, 2014.
Id. Pending are defendants’ Warden Betty Johnson, Lt. James Simmons, Correctional Case
Management Specialist (CCMS II) Keisha Torney, and CCMS II Chantell Session’s2 motion to
dismiss or, in the alternative, for summary judgment, Bishop’s motion for preliminary
injunction, and his opposition to the dispositive motion.

ECF Nos. 16, 18 & 21. The court

will dispense with a hearing. See Local Rule 105.6. (D. Md. 2014). For the reasons stated

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Additionally, Officer Aload was not properly served with the complaint. For the reasons that follow, had the
officer been properly served, he would be entitled to summary judgment. As such, the complaint against Aload will
be dismissed.

2

The Clerk shall amend the docket to reflect the correct spellings of defendants’ names.

below, the court will, by separate Order, GRANT defendant=s dispositive motion and DENY
Bishop’s motion for preliminary injunction.3
Background
In the instant case, plaintiff indicates that on March 29, 2014, while housed at the
Dorsey Run Correctional Facility he was “shook down” by Officer Aload. Plaintiff states that
all of his legal and personal mail, pictures, and writing materials were confiscated. He was
advised that he was under investigation by the intelligence unit. Plaintiff states that in violation
of Division of Correction policy he was not provided a confiscation slip to sign. ECF 1.
Attached to his complaint are copies of plaintiff’s Administrative Remedy (ARP) requests
attempting to resolve the issue regarding the confiscation of his property.

ECF 1-1.

Within

the attachments to plaintiff’s complaint are additional allegations that his incoming legal mail
was opened outside of his presence and delayed in its delivery to him in violation of DOC
policy. Id., p. 13-14.
Defendants indicate that in March of 2014, plaintiff was under investigation by the
Baltimore City Intelligence Department; as a result of an investigation, his mail was
confiscated. ECF 16, Ex. 1. Plaintiff’s confiscated mail was sent to Lt. James Simmons, a State

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A preliminary injunction is an extraordinary and drastic remedy. See Munaf v. Geren, 553 U.S. 674, 68990 (2008). To obtain a preliminary injunction, a movant must demonstrate: 1) that he is likely to succeed on the
merits; 2) that he is likely to suffer irreparable harm in the absence of preliminary relief; 3) that the balance of
equities tips in his favor; and 4) that an injunction is in the public interest. See Winter v. Natural Resources
Defense Council, Inc, 555 U.S. 7 (2008); The Real Truth About Obama, Inc. v. Federal Election Commission, 575
F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010), reinstated in relevant part on
remand, 607 F.3d 355 (4th Cir. 2010) (per curiam). Plaintiff's request for injunctive relief shall be denied in that he
does not clearly establish that he would suffer immediate and irreparable injury, loss, or damage if the requested
relief is not granted. Inasmuch as plaintiff has a forum for his complaint, equitable remedies, such as temporary
restraining orders, shall not be given. If plaintiff feels his mail his being mishandled he is free to file a new civil
rights complaint setting out those allegations. In short, the conditions set out by plaintiff do not warrant immediate
emergency relief.

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intelligence officer responsible for investigating security threats to Maryland prisons. Id.
Simmons possessed plaintiff’s mail for approximately two weeks and then returned it unopened
and uninspected by him to the institution. Id. Plaintiff acknowledges the mail was returned to
him on April 10, 2014. ECF 1.
Standard of Review
A.

Motion to Dismiss
The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 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 does not require defendant to establish Abeyond doubt@ that plaintiff can prove no set
of facts in support of his claim that 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 conclusional couched as factual
allegations, see Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusional factual allegations
devoid of any reference to actual events, see United Black Firefighters v. Hirst, 604 F.2d 844,
847 (4th Cir. 1979).
B.

Motion for Summary Judgment
Summary Judgment is governed by Rule 56(a), which provides:
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.

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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).
“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 former Rule 56(e)). The
court should “view the evidence in the light most favorable to . . . the nonmovant, and draw all
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 “affirmative 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) the Supreme Court
explained that 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.@ 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
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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
The court must first examine defendants’ assertion that plaintiff failed to exhaust his
administrative remedies prior to filing suit. The Prisoner Litigation Reform Act 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 Plaintiff=s allegations. His complaint must be dismissed, unless he can show
that he has satisfied the administrative exhaustion requirement under the PLRA or that
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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).
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 has ten calendar days to file an appeal with 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.
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
(4th Cir. 2015).
Thus, plaintiff’s claims must be dismissed if defendants raise the affirmative defense
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and also prove that Plaintiff has failed to exhaust available remedies. See Jones, 549 U.S. at
216–17 (failure to exhaust is an affirmative defense and inmates are not required to demonstrate
exhaustion in their complaints).

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 v. Peay, 286 F.
Supp. 2d 523, 530 (D. Md. 2003); Booth, 532 U.S. at 735 (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).
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, 12122 (2d Cir. 2001), overruled on other grounds, Porter v. Nussle, 534 U.S. 516 (2002).
Exhaustion is a precondition to filing suit in federal court. Freeman v. Francis, 196 F.3d 641,
645 (6th Cir. 1999) (prisoner may not exhaust administrative remedies during the pendency of a
federal suit). Plaintiff had not completed administrative review before instituting this case in
July of 2014.
In an ARP dated April 4, 2014, plaintiff complained that all of his legal and personal
mail and photographs had been improperly confiscated due to his being investigated by the
intelligence unit. ECF 1-1, p. 4. The ARP does not contain a case number and there is no
indication same was ever processed by the ARP coordinator. Id.
On April 12, 2014, plaintiff filed ARP MCPRS #0243-14 complaining that his property
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had been improperly confiscated due to his being investigated by the intelligence unit. ECF 1-1,
p. 2. In this ARP, plaintiff indicates that he wrote an ARP on April 4, 2014. Id. The ARP was
marked received on May 30, 2014, and Torney responded on June 6, 2014, dismissing the ARP
as previously resolved or repetitive to MCRPRS # 0242-14. Id., p. 3.
On April 12, 2014, plaintiff filed ARP MCPRS #0242-14 complaining that his property
had been improperly confiscated due to his being investigated by the intelligence unit. ECF 1-1,
p. 2. In this ARP, plaintiff indicates that he wrote an ARP on April 4, 2014. Id. The ARP was
marked received on May 30, 2014, and Torney responded on June 6, 2014. Plaintiff does not
indicate what response he received to this ARP. Id., p. 1.
On May 5, 2014, plaintiff filed an appeal to the Commissioner of Corrections
concerning the confiscation of his property.

Id., p. 9.

Within that appeal, Plaintiff also

indicated that on April 7, 2014, his legal mail was delivered to him with his regular mail,
opened and taped back together. Id., p. 10. The appeal does not reference a case number or
indicate what response was received by the institutional coordinator or warden. Id.
On May 19, 2014, Session, the DPSCS ARP Coordinator advised plaintiff that his
“Request for Administrative Remedy” would not be processed as Sessions was unable to
determine plaintiff’s intent. Plaintiff was advised that if he were attempting to appeal the
institutional decision (or lack of a decision) he needed to file an Appeal of Procedural Dismissal
using the appropriate appellate form. ECF 1-1, p. 5. Plaintiff was specifically advised that an
ARP must be completed on the proper forms, signed and dated by an officer, and submitted to
the institutional ARP Coordinator. Thereafter, plaintiff must wait for either the warden’s
response or an appropriate time frame to pass without a response in order to file an appeal. Id.
Plaintiff wrote to Session, attaching a copy of ARP MCPRS #0243-14 that did not
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indicate any action by the warden or institutional ARP coordinator. Id. pp. 6-7. Session
responded to plaintiff indicating that the Warden must first address plaintiff’s concern and
Session forwarded the ARP, on May 28, 2014, to the Warden.4 Id., p. 8.
On November 25, 2014, the Commissioner found plaintiff’s ARP (MCPRS-0370-14)
meritorious in part in that the Warden indicated that “Commitment correspondences are not
considered legal [mail.]”

The Commissioner noted that correspondence from DPSCS is

considered legal mail when received on official stationery; however, the mail plaintiff received
was not on official letterhead or in an official envelope; rather, the letter was folded with
plaintiff’s name and housing location written on the back. ECF 21-4. As such, there was no
indication that the correspondence was legal mail. Id. Plaintiff indicates that the Commissioner
never responded to plaintiff’s other ARPs. Id.
It is clear that plaintiff filed ARPs with the administrative coordinator, the Warden of
DRCF, and appealed to the Commissioner. ECF 1, Ex. 1. Scott Oakley, Executive Director of
the inmate Grievance Office avers, however, that as of October 28, 2014, plaintiff had never
filed an grievance with the IGO. ECF 16, Ex. 2.
Attached to his opposition to the dispositive motion, plaintiff provides a copy of an
appeal of administrative remedy response dated December 3, 2014, direct to the IGO. The
appeal has no indicia of being sent or received by the IGO and fails to include the Case Number
of the ARP being appealed. ECF 21-1, p. 1. Plaintiff attaches a second appeal to the IGO dated
February 21, 2015, listing Case No. 201-500087 as the case being appealed. This appeal
indicates plaintiff received a letter from the IGO dated February 12, 2015, requesting copies of

4

Presumably this explains why the ARP coordinator date stamped plaintiff’s ARPs as being received on May 30,
2014 and denied relief on June 6, 2014. Id., pp.1-3.

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all ARPs and receipts regarding his complaints of legal mail problems. ECF 21-2. The letter
from the IGO to plaintiff dated February 12, 2015, references IGO No. 20150087 and indicates
that the IGO received a letter from plaintiff dated January 9, 2015, indicating he filed a
grievance with the IGO in December of 2014. Plaintiff was advised that the IGO had no record
of receiving the December 2014 grievance. The IGO indicates that the grievance involved his
complaint that legal mail was not being opened in his presence. ECF 21-3. Plaintiff was
directed to provide a copy of all missing ARP paperwork. Id.

Plaintiff filed the instant

complaint on July 18, 2014. ECF 1. It is clear that plaintiff failed to exhaust administrative
remedies as to his both his property and mail claims prior to instituting the instant case. While
it is clear that there was confusion and delay in the processing of plaintiff’s ARPs at the
institutional and Commissioner level, plaintiff offers no explanation for his six-month delay in
contacting the IGO. In light of the foregoing, plaintiff’s complaint is subject to dismissal for
non-exhaustion.
Even if plaintiff had properly exhausted his administrative remedies, defendants would
be entitled to summary judgment. In the case of lost or stolen property, sufficient due process
is afforded to a prisoner if he has access to an adequate post-deprivation remedy. See Parratt v.
Taylor, 451 U.S. 527, 542-44 (1981), overruled on other grounds by Daniels v. Williams, 474
U.S. 327 (1986). The right to seek damages and injunctive relief in Maryland courts constitutes
an adequate post-deprivation remedy. Plaintiff’s post-deprivation remedies include Maryland=s
Tort Claims Act and the Inmate Grievance Office.

See Juncker v. Tinney, 549 F. Supp. 574,

579 (D. Md. 1982) (relying on Parratt to find sufficient due process is afforded through postdeprivation remedies available in the Maryland courts as to personal injury claims and
dismissing plaintiff’s due process claims).

Even if plaintiff’s property was improperly
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confiscated and destroyed, such a claim does not rise to a constitutional violation.
In regard to plaintiff’s claim that incoming legal mail was improperly handled, his claim
fails. Isolated instances of mishandling of inmate mail do not constitute valid constitutional
claims. Buie v. Jones, 717 F.2d 925, 926 (4th Cir. 1983) (isolated incident of mishandling does
not show actionable pattern or practice). Occasional incidents of delay or non-delivery of mail
do not rise to a constitutional level. Gardner v. Howard, 109 F.3d 427, 430-31 (8th Cir. 1997);
Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990). The only evidence plaintiff offers of
injury are conclusional statements that the conduct of correctional staff violated his
constitutional rights. Additionally, while plaintiff generally claims that issues with his mail are
an “ongoing problem” he has failed both in his complaint and in his ARPs to delineate the
specific instances of how and when his incoming mail was tampered with. Without greater
specificity, plaintiff’s claims fail.
Additionally, to the extent that written directives were not followed to the letter, the
adoption of procedural guidelines does not give rise to a liberty interest; thus, the failure to
follow regulations concerning the confiscation of plaintiff’s property and/or the handling of his
incoming mail does not, in and of itself, result in a violation of due process. See Culbert v.
Young, 834 F.2d 624, 628 (7th Cir. 1987).

Regardless of any alleged violations of internal

regulations, the law is settled that the failure to follow a prison directive or regulation does not
give rise to a federal claim, if constitutional minima are met. See Myers v. Kelvenhagen, 97 F.3d
91, 94 (5th Cir. 1996).

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Accordingly, a separate Order shall be entered granting defendants’ dispositive motion,
denying plaintiff’s motion for injunctive relief, and dismissing the complaint as to Officer
Aload.

Dated: July _13th _, 2015

_______________/s/______________________
James K. Bredar
United States District Judge

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