Anderson v. Okojie
MEMORANDUM OPINION. Signed by Judge William M Nickerson on 9/19/2017. (c/m 9/19/17 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND2Q 11SEP
OFFICER AKHERE OKOJIE
19 Mill: 28
Civil Action No. WMN-15-3357
In response to the above-captioned civil rights complaint, Defendant moves to dismiss for
failure to state a claim. ECF 25. Plaintiff was advised by letter from the Clerk of his right to file
an Opposition Response and of the consequences of failing to do so. ECF 26. In response,
Plaintiff filed two pieces of correspondence
assertions raised by Defendant.
(ECF 27 & 28), neither of which address the
Rather, Plaintiff appears to accuse the Clerk or this Court of
siding with Defendant and claims he has been unfairly denied counsel and improperly ordered to
pay the filing fee pursuant to 28 U.S.C. 91915. Id. No hearing is required to resolve the matters
pending. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, Defendant's motion
shall be granted and the complaint dismissed without prejudice.
By his complaint, Plaintiff Shamar Anderson, an inmate committed to the custody of the
Department of Public Safety and Correctional Services and confined to Western Correctional
(WCI), asserts that on March 11, 2014, while he was confined at Maryland
Institution Jessup (MCIJ), he was assaulted by Akhere Okojie, a correctional
officer. ECF 1 at p. 4. Anderson states that Okojie punched him in the face while another higher
ranking officer was escorting Anderson to segregation.
He further claims that Okojie's
coworkers, who Anderson does not name, "almost killed me with [mace]'''
explains that two and one-half cans of mace were deployed and some of it went into Anderson's
mouth and nose. Id. He claims his "skin was red hot, burning up." Id.
As relief, Anderson seeks monetary damages in the amount of $25,600 and cites pain and
suffering, loss of school time, and fees required for medical sick call slips. Id.
Standard of Review
Motion to Dismiss
In reviewing the complaint in light of a Motion to Dismiss pursuant to Fed. R. Civ. Proc.
12(b)( 6) the court accepts all well-pleaded allegations of the complaint as true and construes the
facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.
Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005) (citing Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); Ibarra v. United States, 120 F.3d 472,473 (4th Cir.
1997). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a "short and plain
statement of the claim showing that the pleader is entitled to relief."
Migdal v. Rowe Price-
Fleming Int'l Inc., 248 F.3d 321, 325-26 (4th Cir. 2001); see also Swierkiewicz v. Sorema NA.,
534 U.S. 506, 513 (2002) (stating that a complaint need only satisfy the "simplified pleading
standard" of Rule 8(a)).
The Supreme Court of the United States explained a "plaintiff s obligation to provide the
of his "entitlement
requires more than labels and conclusions,
formulaic recitation of the elements of a cause of action will not do."
Bell At/. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Nonetheless, the complaint does
"detailed factual allegations" to survive a motion to dismiss.
Id at 555.
"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. To survive a motion to dismiss, "a
complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Twombly, 550
U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678. "But where the well-pleaded facts do not permit the court to .
infer more than the mere possibility of misconduct, the complaint has alleged - but it has not
'show[nJ' - 'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2».
"[O]nce a claim has been stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint."
Twombly, 550 U.S. at 563 (citing Sanjuan
v. Am. Bd of Psychiatry and Neurology, Inc., 40 F.3d, 247, 251 (7th Cir. 1994» (once a claim
for relief has been stated, a plaintiff 'receives the benefit of imagination,
so long as the
hypotheses are consistent with the complaint').
Exhaustion of Administrative Remedies
Defendant raises the affirmative defense of non-exhaustion
and asserts the complaint
must be dismissed pursuant to 42 U.S.C. ~1997e. ECF 25 at pp. 4 - 7. Inmates are required to
exhaust "such administrative remedies as are available" before filing an action.
42 U.S.C. ~
1997e(a), see also Ross v. Blake •._U.S._, 136 S.Ct. 1850, 1858 (2016) (An inmate "must exhaust
available remedies, but need not exhaust unavailable ones.").
The statute provides in pertinent
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(a)
This requirement is one of "proper exhaustion of administrative remedies, which 'means
using all steps that the agency holds out, and doing so properly (so that the agency addresses the
issues on the merits).'''
Woodford v. Ngo,- 548 U.S. 81, 93 (2006) quoting Pozo v. McCaughtry,
286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original). "[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." Moore v. Bennettet. 517 F.3d 717, 725 (4th Cir. 2008).
Exhaustion is mandatory.
Ross, 136 S.Ct. at 1857, Jones v. Bock, 549 U.S. 199, 219
(2007). A court may not excuse a failure to exhaust. Ross, 136 S. Ct. at 1856, citing Miller v.
French, 530 U.S. 327, 337 (2000) (explaining "[t]he mandatory 'shall' ...
obligation impervious to judicial discretion").
normally creates an
The purpose of exhaustion is to: 1) allow a prison
to address complaints about the program it administers before being subjected to suit; 2) reduce
litigation to the extent complaints are satisfactorily resolved; and 3) prepare a useful record in the
event of litigation.
Jones, 549 U.S. at 219.
An inmate's failure to exhaust administrative
remedies is an affirmative defense; defendant bears the burden of proving that he had remedies
available to him of which he failed to take advantage. Jones, 549 U.S. at 211-12, 216; Moore,
517 F.3d at 725.
In Ross, the Supreme Court identified three kinds of circumstances
administrative remedy is unavailable.
in which an
First, "an administrative procedure is unavailable when
(despite what regulations or guidance materials may promise) it operates as a simple dead endwith officers unable or consistently unw:illing to provide any relief to aggrieved inmates." Id. at
Second, "an administrative
scheme might be so opaque that it becomes, practically
speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it." Id. The third circumstance arises when "prison
of a gnevance
machination, misrepresentation, or intimidation." Id.
In Maryland, filing a request for administrative remedy procedure ("ARP") with the
warden of the prison is the first of three steps in the ARP process.
("COMAR"), tit. 12 ~07.01.04.
See Code of Md Regs.
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, tit. 12
If the request is denied, a prisoner has 30 calendar days to file an appeal with the
Commissioner of Correction. COMAR, tit. 12 ~07.01.05C. If the appeal is denied, the prisoner
has 30 days to file a grievance with the Inmate Grievance Office.
See Md. Code Ann. Corr.
Servs. ~~10-206, 10-210; COMAR, tit. 12 ~~ 07.01.03 and 07.01.05B.
Complaints are reviewed preliminarily by the Inmate Grievance Office ("IGO)").
Md. Code Ann.,
~10-207; COMAR, tit. 12 ~07.01.06A.
If a complaint is determined to be
"wholly lacking in merit on its face," the IGO may dismiss it without a hearing. Md. Code Ann.,
Corr. Servs. ~1O-207(b)(1); see COMAR, tit. 12 ~07.0 1.07B. The order of dismissal constitutes
the final decision of the Secretary of DPSCS for purposes of judicial review. Md. Code Ann.,
COIT. Servs. ~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
See Md. Code Ann., Cts. & Jud. Proc. ~10-208(c); COMAR tit. 12 ~07.01.07-.08.
The conduct of such hearings is governed by statute. See Md. Code Ann., Corr. Servs. ~ 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 Md. Code Ann., Corr. Servs. SI0-209(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 Md. Code Ann., Corr. Servs.slO-21O.
An inmate need not seek judicial review in State court in order to satisfy the PLRA's
administrative exhaustion requirement.
See, e.g., Pozo, 286 F.3d at 1024 ("(A] prisoner who
uses all administrative options that the state offers need not also pursue judicial review in state
Anderson admits in his complaint that he did not file an administrative remedy procedure
ECF 1 at pp. 2 -3. He explains that criminal charges! were filed against Okojie for
assault and that Anderson "won." Id. at p. 3. Anderson also states that he did file a grievance,
and the matter was referred to IIU (the Internal Investigations Unit for the Department of Public
Safety and Correctional
Services) and he was told there would be no further proceedings
permitted. Id. at p. 3.
In his correspondence to this Court, Anderson does not address the assertion that he has
failed to exhaust administrative remedies, but appears to claim that he does not feel he should be
required to spend money to provide copies of documents in support of his claim. ECF 27 at p. 2
("I got to pay for more copies of this and that like I'm lying on the man"). Anderson goes on to
posit questions such as "(s]o I guess you and Mr. Akhere Okojie think I should get nothing I
should had (sic) died I guess?" !d. Anderson further states that he got other officers fired and
Anderson provides a criminal case number from the Circuit Court for Anne Arundel County: K-15-00073.
ECF I at p. 3. Review of the electronic docket on the Maryl!illd Judiciary Case Search cite reveals that Okojie was
charged with second-degree assault to which he pled not guilty and probation before judgment was imposed along
with a one-hundred dollar fine. See State of Maryland v. Okojie, Crim. Case 02-K-15-000073 (Cir. Ct. Anne
Arundel Co. 2015) at http://casesearch.courts.state.md.us/inquiry.
that now that Okojie was found criminally responsible for an assault, he should receive "justice"
for the assault. Id.
Anderson's correspondence does not suffice to rebut Defendant's affirmative defense that
failed to exhaust administrative remedies as required by the PLRA.
Anderson does not
provide a statement under oath regarding any efforts to satisfy those requirements, nor does he
attempt to explain the details regarding why he could not. Accordingly, Defendant is entitled to
dismissal of the complaint against him based on the affirmative defense raised.
failure to exhaust administrative remedies is without prejudice. In dismissing the complaint,
however, this Court in no way endorses or condones assault of an inmate by a correctional
officer. A separate Order follows.
William M. Nickerson
Senior United States District Judge
Dated: September 19, 2017
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