Marshall v. Carter et al

Filing 5

MEMORANDUM. Signed by Chief Judge Catherine C. Blake on 7/15/2016. (c/m 7/15/2016)(ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GREGORY MARSHALL, #183-459,

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Plaintiff

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v

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MARK J. CARTER, DIRECTOR
SGT. SGT. KANDICE MILL
OFFICER MICHAEL HICKEY1
OFFICER SPITZER
WARDEN RICHARD J. GRAHAM, JR.
JAMES TICHNELL
BRADLEY O. BUTLER
OFFICER ROBERT GOSS

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Civil Action No. CCB-16-1713

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Defendants
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MEMORANDUM
Gregory Marshall, a Maryland Division of Correction prisoner housed at Western
Correctional Institution (“WCI”), seeks money damages for injuries sustained in an incident that
occurred on July 22, 2015, during Marshall’s transport from North Branch Correctional
Institution (“NBCI”) to a court hearing. Marshall also seeks injunctive relief mandating his
transfer from WCI to another facility in order to shield him from retaliation from those involved
in the incident. He names Officers Hickey and Spitzer as the individuals who allegedly denied
him pain medication and assaulted him during transport on July 22, 2015, and claims generally
that the other defendants ignored his concerns regarding threats and retaliation during the
investigation of the incident or during his monthly segregation review meetings. (ECF 1). In
addition to the complaint, Marshall provides a motion for leave to proceed in forma pauperis.
(ECF 2).

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The Clerk shall amend the docket to reflect all party defendants.

Marshall, a self-represented litigant who has repeatedly filed complaints subject to
dismissal under 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2), is barred generally from civil
filings under the Athree strikes@ provision of the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915(g).2 For reasons to follow, dismissal of the complaint without prejudice is
appropriate under the “three strikes” provision.
Analysis
Because Marshall has “three strikes” under the PLRA, he is not permitted to file a civil
action unless he pays the full filing fee or proves he is under imminent danger of serious physical
injury. Marshall has not paid the filing fee. The July 22, 2015 incident does not meet the criteria
for consideration under the “three strikes” provision, and Marshall’s claim for money damages
for injuries sustained in the incident must be dismissed without prejudice. As to his allegation of
possible retaliation, aside from his self-serving and speculative claim that he may be injured if
not transferred from WCI, Marshall does not demonstrate that he is in imminent danger of
serious physical harm.
Federal courts have long recognized that the grant of interim equitable relief is an
“extraordinary remedy involving the exercise of a very far-reaching power.” Direx Israel, Ltd. v.
Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991). A plaintiff seeking such relief
must establish that he is “likely to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. National Resource Defense Council, Inc., 555 U.S.
7, 20 (2008). All four of these requirements must be established independently before injunctive
relief can be granted. See The Real Truth About Obama, Inc., v. Federal Election Commission,
2

See Marshall v. Lanham, No. AW-97-990 (D. Md. 1997); Marshall v. Corr. Center of Howard Cnty., No.
AW-97-2536 (D. Md. 1997); and Marshall v. Kemmerer, No. AW-02-2133 (D. Md. 2003).

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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).
The second Winter factor is dispositive here: Marshall has not demonstrated that he is
in imminent danger, merely that he fears he may be assaulted because Hickey and Spitzer work
at WCI and may be involved should Marshall require transportation services in the future. It
would offend due process were the court to wield its equitable power under these
circumstances; it declines to do so.
Marshall’s claim for money damages based on defendants’ failure to transfer him could
not proceed, even if he were not subject to the “three strikes” bar, as Marshall failed to complete
administrative exhaustion prior to the filing of his complaint. Marshall filed his Administrative
Remedy Process (“ARP”) grievance concerning the need for separation between him and
Officers Hickey and Spitzer on April 18, 2016. (ECF 1-1 at p. 1, ARP No. WCI-0869-16). The
ARP was dismissed by the acting warden on May 18, 2016, after Marshall failed to submit
documentation to support his claim. (Id. at pp. 2-3). Marshall does not appear to have appealed
that decision, but instead filed the instant complaint one week later, on May 27, 2016. See Booth
v. Churner, 532 U.S. 731, 741 (2001). A claim which has not been exhausted may not be
considered by this court. See Jones v. Bock, 549 U.S. 199, 220 (2007). While a court typically
must rely on defendants to raise the failure to exhaust as an affirmative defense, see Jones v.
Bock, 549 U.S. 216-17 (2007), it is apparent here that exhaustion has not occurred.
For these reasons, a separate order shall be entered denying in forma pauperis status and
dismissing the case without prejudice.3
____________/S/___________________
Catherine C. Blake
United States District Judge

Date: July 15, 2016

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Marshall may of course refile the action and pay the full $400 filing fee at the time of filing.

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