Jones-Harris v. Wolfe
Filing
14
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 12/2/2015. (c/m 12/3/15)(krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHARELLES JONES-HARRIS, #338-979
*
Plaintiff
*
v
*
WARDEN JOHN WOLFE
OFFICER NUDUKWE ONUMA1
*
Civil Action No. ELH-15-354
*
Defendants
***
MEMORANDUM
In February 2015, plaintiff Charelles Jones-Harris, a self-represented inmate within the
Maryland Division of Correction (“DOC”), filed a civil rights action pursuant to 42 U.S.C.
§ 1983, seeking money damages from Correctional Officer Ndukwe Onuma as a result of an
incident that occurred on August 7, 2013, while plaintiff was an inmate at Jessup Correctional
Institution (“JCI”).2 On that date, Jones-Harris suffered serious injuries when he was brutally
attacked by several fellow prisoners. He alleges that Onuma was absent from the tier when the
attack occurred. ECF 1 at 4.3
Defendant has filed an unopposed “Motion To Dismiss Or, In The Alternative, A Motion
1
The Clerk shall amend the docket to reflect the full and complete spelling of Onuma’s
name.
2
Jones-Harris initially sued JCI Warden John Wolfe, but provided no allegations against
him. By Order dated February 26, 2015, I dismissed Wolfe from the case. ECF 5. Plaintiff had
already added Onuma as a defendant in a supplement filed on February 23, 2015. ECF 4.
3
As noted in the Order of February 26, 2015, the Court has no authority to grant JonesHarris’s request (ECF 4 at 3) for criminal prosecution of defendant and the three prisoners who
stabbed him. See ECF 5 at 1, n. 2 (citing Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973)).
For Summary Judgment.
ECF 10.
It is supported by a legal memorandum (ECF 10-1)
(collectively, the “Motion”) and numerous exhibits that consist of hundreds of pages.4
According to defendant, plaintiff “describes nothing more or less than a spontaneous attack upon
him.” ECF 10-1 at 11.
Pursuant to the dictates of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), on April
13, 2015, the Clerk notified Jones-Harris that defendant had filed a dispositive motion; that
Jones-Harris had seventeen days in which to file a written opposition to the motion; and that if
Jones-Harris failed to respond, the claim against defendant could be dismissed, without further
notice. ECF 11. Jones-Harris requested and received additional time to file an opposition. ECF
12; ECF 13. However, he has not responded.
No hearing is needed to resolve the Motion. See Local Rule 105.6. For the reasons set
forth below, I shall grant the Motion.
I. Standard of Review
Defendant’s Motion is styled as a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, in
the alternative, for summary judgment under Fed. R. Civ. P. 56. A motion styled in this manner
implicates the court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See
Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F. Supp. 2d 431, 436-37 (D. Md.
2011). Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual
disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th
Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters
outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be
treated as one for summary judgment under Rule 56,” and “[a]ll parties must be given a
4
To illustrate, the Exhibit at ECF 10-5 consists of 118 pages; ECF 10-6 exceeds 125
pages; and ECF 10-8 is 75 pages in length.
2
reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P.
12(d).
When the movant expressly captions its motion “in the alternative,” as one to dismiss for
for summary judgment, and submits matters outside the pleadings for the court’s consideration,
the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court
“does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports
Auth., 149 F.3d 253, 261 (4th Cir. 1998).5
A district judge has “complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is offered in conjunction with a Rule
12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not
consider it.” 5 C WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed.
2004, 2011 Supp.). This discretion “should be exercised with great caution and attention to the
parties’ procedural rights.” Id. at 149. In general, courts are guided by whether consideration of
extraneous material “is likely to facilitate the disposition of the action,” and “whether discovery
prior to the utilization of the summary judgment procedure” is necessary. Id. at 165, 167.
Ordinarily, summary judgment is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont, supra, 637 F.3d at 448-49. However, “the
party opposing summary judgment ‘cannot complain that summary judgment was granted
without discovery unless that party has made an attempt to oppose the motion on the grounds
5
In contrast, a court may not convert a motion to dismiss to one for summary judgment
sua sponte, unless it gives notice to the parties that it will do so. See Laughlin, 149 F.3d at 261
(stating that a district court “clearly has an obligation to notify parties regarding any courtinstituted changes” in the posture of a motion, including conversion under Rule 12(d)); Finley
Lines Joint Protective Bd. Unit 200 v. Norfolk So. Corp., 109 F.3d 993, 997 (4th Cir. 1997) (“[A]
Rule 12(b)(6) motion to dismiss supported by extraneous materials cannot be regarded as one for
summary judgment until the district court acts to convert the motion by indicating that it will not
exclude from its consideration of the motion the supporting extraneous materials.”).
3
that more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302
F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,
961 (4th Cir. 1996)). To raise adequately the issue that discovery is needed, the non-movant
typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)),
explaining why, “for specified reasons, it cannot present facts essential to justify its opposition,”
without needed discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing
affidavit requirement of former Rule 56(f)) “[T]o justify a denial of summary judgment on the
grounds that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be
‘essential to [the] opposition.’” Scott v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D.
Md. 2011) (alteration in original) (citation omitted). A non-moving party’s Rule 56(d) request
for additional discovery is properly denied “where the additional evidence sought for discovery
would not have by itself created a genuine issue of material fact sufficient to defeat summary
judgment.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see
Amirmokri v. Abraham, 437 F. Supp. 2d 414, 420 (D. Md. 2006), aff’d, 266 F. App’x. 274 (4th
Cir.), cert. denied, 555 U.S. 885 (2008).
If a non-moving party believes that further discovery is necessary before consideration of
summary judgment, the party fails to file a Rule 56(d) affidavit at his peril, because “‘the failure
to file an affidavit . . . is itself sufficient grounds to reject a claim that the opportunity for
discovery was inadequate.’” Harrods, 302 F.3d at 244 (citations omitted). But, the non-moving
party’s failure to file a Rule 56(d) affidavit cannot obligate a court to issue a summary judgment
ruling that is obviously premature. Although the Fourth Circuit has placed “‘great weight’” on
the Rule 56(d) affidavit, and has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and
the need for additional discovery in a memorandum of law in opposition to a motion for
4
summary judgment is not an adequate substitute for [an] affidavit,’” the appellate court has “not
always insisted” on a Rule 56(d) affidavit. Id. (internal citations omitted). According to the
Fourth Circuit, failure to file an affidavit may be excused “if the nonmoving party has adequately
informed the district court that the motion is premature and that more discovery is necessary”
and the “nonmoving party’s objections before the district court ‘served as the functional
equivalent of an affidavit.’” Id. at 244-45 (internal citations omitted).
Jones-Harris has not filed an affidavit under Rule 56(d). Nor has Jones-Harris suggested
that additional discovery is needed.
I am satisfied that, given the voluminous exhibits presented here, the Court has ample
information with which to address the Motion as one for summary judgment. Moreover, doing
so will facilitate resolution of the case.
Summary judgment is governed by Fed. R. Civ. P. 56(a), which provides in part: “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). In analyzing a summary judgment motion,
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); see
5
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); FDIC v.
Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
“A 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)).
But, the district court’s “function” is not “to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
Moreover, the trial court may not make credibility determinations on summary judgment.
Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015);
Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007); Black &. Decker Corp.
v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis, 290 F.3d at 644-45.
In the face of conflicting evidence, such as competing affidavits, summary judgment is
generally not appropriate, because it is the function of the fact-finder to resolve factual disputes,
including matters of witness credibility. Nevertheless, to defeat summary judgment, conflicting
evidence, if any, must give rise to a genuine dispute of material fact. See Anderson, 477 U.S. at
247-48. If “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party,” then a dispute of material fact precludes summary judgment. Id. at 248; see Libertarian
Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). On the other hand, summary judgment
is appropriate if the evidence “is so one-sided that one party must prevail as a matter of law.” Id.
at 252. And, “the mere existence of a scintilla of evidence in support of the plaintiff’s position
will be insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.” Id.
6
Because Jones-Harris is self-represented, his submissions are liberally construed. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). But, the court must 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 Corporation v.
Catrett, 477 U.S. 317, 323–24 (1986)).
II. Discussion
A.
The Eighth Amendment prohibits Aunnecessary and wanton infliction of pain@ by virtue
of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173
(1976). AScrutiny under the Eighth Amendment is not limited to those punishments authorized
by statute and imposed by a criminal judgment.@ De=Lonta v. Angelone, 330 F. 3d 630, 633 (4th
Cir. 2003) (citing Wilson v. Seiter, 501 U.S.294, 297 (1991)).
Plaintiff alleges that defendant was deliberately indifferent in failing to provide adequate
supervision and security to protect him and, as such, his right to be free from cruel and unusual
punishment has been violated. A prisoner’s right to be free from cruel and unusual punishment
includes the right to be protected from a substantial risk of serious harm at the hands of other
inmates. See Farmer v. Brennan, 511 U.S. 825 (1994); Makdessi v. Fields, 789 F.3d 126, 132
(4th Cir. 2015); Danser v. Stansberry, 772 F.3d 340, 346 (4th Cir. 2014); Winfield v. Bass, 106
F.3d 525, 531 (4th Cir. 1997).
In Farmer v. Brennan, 511 U.S. 825, the Supreme Court said, id. at 833 (internal
quotations and citations omitted; alterations in Farmer).
[P]rison officials have a duty . . . to protect prisoners from violence at the hands
of other prisoners.
Having incarcerated persons [with] demonstrated
7
proclivity[ies] for antisocial criminal, and often violent, conduct, having stripped
them of virtually every means of self-protection and foreclosed their access to
outside aid, the government and its officials are not free to let the state of nature
take its course. Prison conditions may be restrictive and even harsh, but
gratuitously allowing the beating or rape of one prisoner by another serves no
legitimate penological objective[e], any more than it squares with evolving
standards of decency. Being violently assaulted in prison is simply not part of the
penalty that criminal offenders pay for their offenses against society.
In Danser, the Fourth Circuit explained, 772 F.3d at 346:
This constitutional right derives from the Supreme Court’s holdings that the
treatment an inmate receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment. [Farmer, 511
U.S.] at 832-33. Because being assaulted in prison is not “‘part of the penalty
that criminal offenders pay for their offenses against society,”’ id. at 834
(quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)), prison officials are
responsible for “protect[ing] prisoners from violence at the hands of other
prisoners.” Id at 833 (citations and internal quotation marks omitted).
Further, as to an inmate’s right to be protected from prisoner violence, the Danser Court
said, id. at 346-47:
An Eighth Amendment claim of this nature requires proof of two
elements to establish deprivation of a constitutional right. [Farmer, 511 U.S.]
at 834; Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 723 (4th Cir. 2010). First,
a prisoner must establish a serious deprivation of his rights in the form of a
“serious or significant physical or emotional injury.”[ ] Brown, 612 F.3d at 723;
see also De’Lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013). . . . The
second element … requires that a plaintiff show that the prison official
allegedly violating the plaintiff’s constitutional rights had a “sufficiently
culpable state of mind.” Farmer, 511 U.S. at 834 (citation and internal
quotation marks omitted). In this context, the required state of mind that must
be established is a “deliberate indifference to inmate health or safety.” Id.
(citations omitted).
In sum, in a failure to protect claim under the Eighth Amendment, a prisoner must show,
first, that the harm he suffered was objectively serious, and second, that prison officials acted
with deliberate indifference. Farmer, 511 U.S. at 834.
In particular, to prevail on an Eighth Amendment claim of failure to protect from
violence, a plaintiff must establish that the defendant exhibited deliberate or callous indifference
8
to a specific known risk of harm. See Pressly v. Hutto, 816 F. 2d 977, 979 (4th Cir. 1987). In
other words, a prison “official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Farmer, 511 U.S. at 837; see Rich v. Bruce, 129 F. 3d 336, 339-40 (4th Cir. 1997). However, if
a risk is obvious, a prison official “cannot hide behind an excuse that he was unaware of a risk,
no matter how obvious.” Brice v. Virginia Beach Correctional Center, 58 F. 3d 101, 105 (4th
Cir. 1995); see Makdessi v. Fields, 789 F.3d 126 (4th Cir. 2015). And, “[a] prison official’s
subjective actual knowledge [of a risk] can be proven through circumstantial evidence. . . .”
Makdessi, 789 F.3d at 133.
Here, plaintiff’s injuries qualify as “significant” under the first element of the Farmer
test. It is the second element that forms the core issue. As to that element, there is simply no
indication in the record that the defendant knew or should have known, from plaintiff or anyone
else, that plaintiff was in danger of assault by other inmates. And, even if defendant was
somehow negligent, demonstration of negligence does not suffice to show a claim of deliberate
indifference. See Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999).
B.
It is undisputed that on August 7, 2013, Jones-Harris was a JCI general population
prisoner whose movements were not restricted, enabling him to go to the shower area and the
commissary area without being accompanied by corrections staff. ECF 10-3, Decl. of Allen
Gang, Chief of Security, at ¶ 4; ECF 10-4, Decl. of Ndukwe Onuma, at ¶ 5.6 At approximately
1:10 p.m. on that date, Jones-Harris was stabbed multiple times by fellow prisoners Julius
6
This Memorandum cites to the pagination assigned through the Court’s electronic
docketing system, which does not necessarily correspond to page numbers on pleadings or
exhibits.
9
Collins, Roy Harris, and Tanoa Shorter. Jones-Harris was hospitalized following the attack, and
the Internal Investigation Unit (“IIU”) convened an investigation.
ECF 10-6 (IIU Report,
Redacted), at 4.
On August 7, 2013, Onuma was assigned to C-Tier and was monitoring 196 prisoners in
a 30-by-10 foot area. ECF 10-3 at ¶ 3, Gang Decl.; ECF 10-4 at ¶¶ 3-4, Onuma Decl. Onuma
was also assigned to complete other tasks, including monitoring recreation and mass movement
on the tier. Id. At approximately 1:10 p.m. Onuma, who at the time did not know that JonesHarris had been threatened by Collins, saw several prisoners fighting at the top of the tier. ECF
10-4 at ¶¶ 6-7. Onuma immediately observed prison protocol by calling a “10-10” code for
assistance and staying on the scene to observe until assistance arrived to end the attack. ECF 103 at ¶ 5; ECF 10-4 at ¶ 7; see also ECF 10-6, IIU Report (Redacted).
Onuma observed inmates Collins, Harris, and Shorter stab plaintiff. ECF 10-4 at ¶ 8;
ECF 10-6 at 5. CO II Emeka Okafor and CO II Mustapha also witnessed the assault. ECF 10-6
at 4, 5. The inmates were ordered to stop fighting, they were subjected to pepper spray, and
handcuffed. ECF 10-5, Use of Force Report at 8, 12, 14. Officer Desmond Ross subsequently
recovered a homemade knife from the trash. ECF 10-5 at 19, 26, 62-63, 84.
As of August 7, 2013, plaintiff had not identified the assailants as his enemies. ECF 10-3
at ¶ 7; ECF 10-7 (enemy list). The assailants were added to plaintiff’s enemy list on September
17, 2013. Id.
As a result of the attack, plaintiff was hospitalized for several days. ECF 10-8, Medical
Records. He sustained multiple puncture wounds, bleeding, and swelling. See, e.g., ECF 10-8 at
2. He was also diagnosed with a collapsed lung, among other injuries. Id. at 67-70; ECF 10-6 at
5.
10
Onuma avers that he did not have advance knowledge from Jones-Harris or anyone else
that Jones-Harris was in danger of assault by Collins or any other prisoner; that none of JonesHarris’s attackers were verified as his enemies in prison records; and that Onuma played no role
in the assault. ECF 10-4 at ¶¶ 10-12. As noted, ECF 10-7 reflects that plaintiff had no enemy
alert at the relevant time.
Plaintiff was interviewed soon after the attack, while hospitalized at the University of
Maryland Shock Trauma Unit. There, according to the IIU Report, Jones-Harris related to Sgt.
Nwanja that “the incident occurred over a misunderstanding [with Collins] regarding
commissary.” ECF 10-6 at 5. He also indicated that he did not want to press charges against
anyone, and signed a Complaint Withdrawal form. ECF 10-6 at 5, 17. And, on August 7, 2013,
while in Shock Trauma and sedated, plaintiff told Lieutenant Kimberly Forte that he got into an
argument with Collins about a “Commissary List,” and they both went to “the top shower to
fight,” where they thought they would be out of sight of the camera. ECF 10-5 at 23.
A thorough Use of Force Investigation was conducted at JCI. ECF 10-5. In addition, the
Internal Investigation Unit promptly initiated a comprehensive investigation. See ECF 10-6.
After the IIU investigation, Allen Gang, Chief of Security, found Onuma’s actions to be
reasonable and necessary. ECF 10-3 at ¶ 8.
In his Complaint, Jones-Harris implies that the attack was a “hate crime” because he is a
“homosexual.” ECF 1 at 4.
C.
Defendant asserts entitlement to qualified immunity, arguing that his conduct did not
violate any clearly established constitutional right of which a reasonable public official
should have known. See Harlow v. Fitzgerald, 457 U.S. 800 (1982); see also Iko v. Shreve,
11
535 F.3d 225, 238 (4th Cir. 2008) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).
It is true that the court cannot require prison officials to possess “the legal
knowledge culled ‘by 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) (quoting Jackson v. Long, 102 F.3d 722, 731 (4th Cir. 1996)). The
Eighth Amendment claim raised here, however, was clearly established by 2013, when the
attack occurred. Thus, defendant cannot claim qualified immunity.
Defendant also contends that he is immune from suit for any claims brought against him
in his official capacity.
The Eleventh Amendment bars suit in federal court, absent consent,
against a state by its own citizens. See Board of Trustees of University of Alabama v. Garrett,
531 U.S. 356 (2001). Under the Eleventh Amendment to the United States Constitution, a state,
or one of its agencies or departments, is immune from suit in federal court brought by its citizens
or the citizens of another state, unless it consents. See Penhurst State School and Hospital v
Halderman, 465 U.S. 89, 100 (1984). While the State of Maryland has waived its sovereign
immunity for certain types of cases brought in state courts, see Md. Code, State Gov't. Art.,
§§ 12–201(a), 12-202, it has not waived its immunity under the Eleventh Amendment to suit in
federal court.
Jones-Harris’s request for monetary damages against Onuma in his official capacity for
constitutional violations is barred by Eleventh Amendment immunity. “[A] suit against a state
official in his or her official capacity is not a suit against the official but rather is a suit against
the official's office. As such, it is no different from a suit against the State itself.” Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); see Brandon v. Holt, 469 U.S. 464, 471-
12
71 (1985). States and their officers, sued in their official capacities, are not “persons” subject to
suit for money damages under Section 1983. Will, 491 U.S. at 71.
To be sure, there are several exceptions to the Eleventh Amendment bar. See, e.g.,
Equity In Athletics, Inc. v. Department of Education, 639 F.3d 91, 107 n. 13 (4th Cir. 2011)
(listing exceptions). Relevant here, the Eleventh Amendment does not prevent private
individuals from bringing suit against State officials for prospective or declaratory relief for
ongoing violations of federal law. The record, however, does not support Jones-Harris’ claims
of violations of constitutional law, for reasons discussed herein.
Defendant also asserts that Jones-Harris’s claim should be dismissed due to his failure to
exhaust available administrative remedies. 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.
For purposes of the PLRA, “the term ‘prisoner’ means any person incarcerated or
detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent
for, violations of criminal law or the terms and conditions of parole, probation, pretrial release,
or diversionary program.” 42 U.S.C. § 1997e(h). 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).
Notably, administrative exhaustion under § 1997e(a) is not a jurisdictional requirement
13
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
defendants. See Jones v. Bock, 549 U.S. 199, 215-216 (2007); Anderson v. XYZ Correctional
Health Services, Inc., 407 F.2d 674, 682 (4th Cir. 2005).
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), aff’d, 98
Fed. App’x 253 (4th Cir. 2004); 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); see also
Booth v. Churner, 532 U.S. 731, 735 (2001) (affirming dismissal of prisoner=s claim for failure
to exhaust where he Anever 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 Ato 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).
Administrative remedies must, however, be available to the prisoner in order for a
defendant to rely on exhaustion as a defense, 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); see Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir. 2006). The Fourth Circuit has addressed the meaning of
Aavailable@ remedies in Moore v. Bennette, 517 F. 3d 717, 725 (4th Cir. 2008):
[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
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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).
See also Blake v. Ross, 987 F.3d 693 (4th Cir. 2015).
In Maryland, the Commissioner of Correction “may adopt regulations for the operation
and maintenance of the units in the Division,” which, among other things, “shall provide for the
discipline and conduct of inmates, including the character of punishments for violations of
discipline.” Md. Code (2008 Repl. Vol., 2015 Supp.), Correctional Services Article (“C.S.”), §3205; see also Code of Maryland Regulations (“COMAR”) 12.02.2701.
In addition, the Maryland Department of Public Safety and Correctional Services
(“DPSCS”) has made an “administrative remedy procedure” (“ARP”) available to Maryland
State prisoners, within the meaning of 42 U.S.C. § 1997e(a), for the submission of “grievance[s]
against . . . official[s] or employee[s] of the Division of Correction.” C.S. § 10-206(a); see
generally C.S. §§ 10-201 et seq.; COMAR 12.07.01.01(B)(1) (defining ARP). Regulations
promulgated by DPSCS concerning the administrative remedy procedure define a “grievance’ to
include a “complaint of any individual in the custody of the [DOC] . . . against any officials or
employees of the [DOC] . . . arising from the circumstances of custody or confinement.”
COMAR 12.07.01.01B(8).7
7
Maryland appellate case law indicates that the administrative grievance procedure does
not encompass “‘every kind of civil matter that could be brought by a DOC inmate.’” Massey v.
Galley, 392 Md. 634, 646, 898 A.2d 951, 958 (2006) (citation omitted). Rather, it applies only
to matters that “relate to or involve a prisoner’s ‘conditions of confinement.’” Id. at 651, 898
15
An inmate “must exhaust” the ARP process as a condition precedent to further review of
the inmate’s grievance. See C.S. § 10-206(b); see also COMAR 12.07.01.02.D; DCD 185-002
(effective August 27, 2008). Exhaustion requires completion of “the administrative review
process in accordance with the applicable procedural rules, including deadlines.” Woodford v.
Ngo, 548 U.S. 81, 88, 93 (2006).
In Maryland, filing a request for administrative remedy with the warden of the prison is
the first of three steps in the ARP process. See COMAR 12.07.01.04. The ARP request must be
filed within 30 days of the date on which the incident occurred, or within 30 days of the date the
inmate first gained knowledge of the incident or injury giving rise to the complaint, whichever is
later. COMAR 12.07.01.05A. If the request is denied, a prisoner has 30 calendar days to file an
appeal with the Commissioner of Correction. COMAR 12.07.01.05C; Blake v. Ross, 787 F.3d at
697. If the appeal is denied, the prisoner has 30 days to file a grievance with the Inmate
Grievance Office (“IGO”).
See C.S. §§ 10-206, 10-210; COMAR 12 07.01.03; COMAR
12.07.01.05B.
Complaints are reviewed preliminarily by the IGO. See C.S. § 10-207; COMAR
A.2d at 960 (citation omitted). Thus, the grievance procedure does not apply to requests for
public information under the Maryland Public Information Act, see id., nor does it apply to
medical malpractice claims against private medical service providers who treat inmates under
contract with the DOC. See Abramson v. Correctional Med. Servs., Inc., 359 Md. 238, 753 A.2d
501 (2000).
Moreover, the administrative grievance procedure does not apply to claims for
compensation for disabilities resulting from “personal injury arising out of and in the course of
[an inmate’s] work for which wages or a stipulated sum of money was paid by a correctional
facility,” C.S. § 10-304, for which a claim to a different administrative body, the Sundry Claims
Board, is the exclusive remedy. See Dixon v. DPSCS, 175 Md. App. 384, 927 A.2d 445 (2007).
On the other hand, the grievance process does apply to a wide variety of claims that arise out of
the conditions of confinement, even if the grievance process cannot provide a comprehensive
remedy for such claims, such as tort claims of assault and battery against prison officers. See
McCullough v. Wittner, 314 Md. 602, 552 A.2d 881 (1989).
16
12.07.01.06A. If the complaint is determined to be “wholly lacking in merit on its face,” the IGO
may dismiss it without a hearing. C.S. § 10-207(b)(1); see COMAR 12.07.01.07B. The order of
dismissal constitutes the final decision of the Secretary of DPSCS for purposes of judicial
review. C.S. § 10-207(b)(2)(ii). However, if a hearing is deemed necessary by the IGO, the
hearing is conducted by an administrative law judge with the Maryland Office of Administrative
Hearings. See C.J. § 10-208(c); COMAR 12.07.01.07-.08. The conduct of such hearings is
governed by statute. C.S. § 10-208.
A decision of the administrative law judge denying all relief to the inmate is considered a
final agency determination. However, a decision concluding that the inmate’s complaint is
wholly or partly meritorious constitutes a recommendation to the Secretary of DPSCS, who must
make a final agency determination within fifteen days after receipt of the proposed decision of
the administrative law judge. See C.S. § 10-209(b)-(c).
The final agency determination is subject to judicial review in Maryland State court, so
long as the claimant has exhausted his/her remedies. See C.S. § 10-210. But, an inmate need not
seek judicial review in State court in order to satisfy the PLRA’s administrative exhaustion
requirement. See, e.g., Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.) (“[A] prisoner who
uses all administrative options that the state offers need not also pursue judicial review in state
court.”), cert. denied, 537 U.S. 949 (2002).8
In sum, in order to show administrative exhaustion, a plaintiff must follow all the steps in
the administrative process. If an inmate is not satisfied with the action of the IGO in response to
8
Defendant asserts that, when an inmate files suit directly in federal court, such an action
is not an appeal of an adverse decision of the IGO to the State’s circuit court. He cites Md.
Code, Cts. & Jud. Proc. Art. § 5-1003(a)(3) (“Judicial review following administrative
consideration shall be the exclusive judicial remedy for any grievance or complaint within the
scope of the administrative process . . . .”).
17
his complaint, the Maryland General Assembly has provided for judicial review through an
appeal to the circuit court for the county in which the institution is located.
Defendant asserts, ECF 10-1 at 15:
Plaintiff has not properly exhausted his administrative remedies. The only
ARP Plaintiff filed relating to the August 7, 2013, assault did not contain
allegations that Defendant Onuma failed to protect Plaintiff. [See ECF 10-10].
Instead, the ARP dealt with allegations of roaches and mice keeping him up at
night, as well as, allegations that two of the inmates that previously assaulted
Plaintiff were now housed on the same tier as Plaintiff and had threatened to
throw human feces at Plaintiff. Id. In addition, Plaintiff withdrew this ARP. Id.
at p. 3. Furthermore, Plaintiff has failed to file any grievances with the IGO.
[ECF 10-11, Declaration of Scott Oakly, Executive Director, Inmate Grievance
Office.
Plaintiff filed an ARP in August 2013. ECF 10-10 at 2-3. But, he withdrew his ARP
request on August 28, 2013.
ECF 10-10 at 1.
Nevertheless, in the context of the case,
defendant’s assertion that Jones-Harris failed to exhaust administrative remedies may lack merit.
As the Fourth Circuit recently stated, “the exhaustion requirement is not absolute.” Blake
v. Ross, 787 F.3d at 697. Indeed, there are instances when non-exhaustion is “justified.” Id. at
698 (citation omitted). Here, the comprehensive IIU investigation may satisfy the substantive
component for an exception to exhaustion. Blake, 787 F.3d at 698. And, plaintiff may have
reasonably believed that the IIU investigation “procedurally exhausted his available
remedies. . . .” Id.; see also Bogues v. McAlpine, et al., Civil Action No. CCB-11-463 (D. Md.),
ECF 23, Exhibit 4 at 23; Oliver v. Harbough, et al., Civil Action No. ELH-11-996 (D. Md.),
Memorandum of December 19, 2011, ECF 31 at 7-8.
Accordingly, I shall assume, arguendo, that plaintiff exhausted his claim. Therefore, I
will examine the claim on the merits.
The gravity of plaintiff’s injuries is not disputed. Thus, plaintiff has established the first
prong of a failure-to-protect claim. His claim fails, however, because he cannot demonstrate the
18
second prong in the Eighth Amendment analysis, i.e., that Onuma acted with deliberate or
callous indifference by ignoring his assigned duties and allowing a specific known risk of harm
to occur.
It is uncontroverted that Onuma did not know that Jones-Harris and Collins had had an
argument. Plaintiff does not allege, nor do the records show, that plaintiff alerted defendant or
anyone else at the prison that he was in fear for his safety. The assailants were not listed as
plaintiff’s enemies as of August 7, 2013. Moreover, Onuma had multiple duties on the tier that
demanded his attention. And, when the fight erupted, Onuma quickly summoned additional
officers to help quell the prisoner melee. Nothing more is constitutionally required.
A finding of failure to protect in violation of the Eighth Amendment cannot be made on
the facts of this case. Summary judgment will be entered in favor of defendant in a separate
Order to follow.
December 2, 2015
Date
_______/s/________________________
Ellen L. Hollander
United States District Judge
19
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