Germain v. Bishop, Jr. et al
Filing
22
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 9/19/2018. (c/m 9/20/18 nu, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
JEAN B. GERMAIN,
Plaintiff,
v.
Civil Action No. TDC-17-1289
FRANK B. BISHOP, JR. and
LIEUTENANT T. SIRES,
Defendants.
MEMORANDUM OPINION
Plaintiff Jean B. Germain, an inmate at the North Branch Correctional
Institution
("NBC I") in Cumberland, Maryland, has filed a Complaint alleging that prison officials failed to
secure his personal property while he was in disciplinary segregation, in violation of his federal
and state constitutional rights. Defendants have filed a Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment.
Having reviewed the Complaint and the submitted materials,
the Court finds no hearing necessary.
See D. Md. Local R. 105.6. For the reasons set forth
below, the Motion will be GRANTED.
BACKGROUND
Germain names as Defendants Frank Bishop, Jr., the Warden of NBCI ("the Warden");
and Lt. Sires, the supervisor of the Property Room at NBC!. Germain alleges that on February
20, 2015, his personal property was confiscated because he had been placed in disciplinary
segregation. When he was released from disciplinary segregation on April 26, 2017, his property
was not returned to him. On May 5,2017, Officer Gibbner, a correctional officer on Germain's
housing tier, told Germain that Lt. Sires had destroyed his property. According to Germain, that
same day, he submitted a complaint pursuant to the Administrative Remedy Procedure ("ARP")
to Officer Gibbner about the destruction of his property. Germain asserts that the Unit Manager
did not sign the ARP, and that he did not receive a copy of it as required by policy. He further
claims that he was "intimidated" by correctional officers to not submit another ARP about this
issue.
CompI. ~ 16, ECF No.!.
On May 11, 2017, six days after hearing that his property had been destroyed, Germain
filed the Complaint in this case. Germain asserts that Warden Bishop and Lt. Sires have violated
his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution, as well as rights under the Maryland Constitution.
DISCUSSION
Defendants seek either dismissal of the Complaint or summary judgment in their favor,
on the grounds that Germain did not exhaust administrative remedies and that he has failed to
state a plausible constitutional claim.
I.
Legal Standard
To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the court to draw the
reasonable
inference that the defendant is liable for the misconduct
alleged."
!d.
Legal
conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint
as a whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff.
(1994); Lambeth v. Bd. ofComm'rs
Albright v. Oliver, 510 U.S. 266, 268
of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).
2
Here, Defendants have submitted exhibits with their Motion.
When a court considers
matters outside the pleadings, it must construe the motion as a motion for summary judgment.
Fed. R. Civ. P. 12(d). Before converting a motion to dismiss to one for summary judgment,
courts must give the nonmoving party "a reasonable opportunity to present all the material that is
pertinent to the motion."
Id.
"Reasonable
opportunity"
has two requirements:
(1) the
nonmoving party must have some indication that the court is treating the Rule 12(b)( 6) motion as
a motion for summary judgment, and (2) the nonmoving party "must be afforded a reasonable
opportunity for discovery" to obtain information essential to oppose the motion.
Gay v. Wall,
761 F.2d 175,177 (4th Cir. 1985) (citation omitted). To show that a reasonable opportunity for
discovery has not been afforded, the nonmoving party must file an affidavit or declaration under
Rule 56(d) explaining why "for specified reasons, it cannot present facts essential to justify its
opposition."
Fed. R. Civ. P. 56(d). See Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d
214,245 (4th Cir. 2002); Hamilton v. Mayor & City Council of Bait., 807 F. Supp. 2d 331, 341
(D. Md. 2011).
In opposing the Motion, Germain has submitted a Rule 56(d) affidavit in which he asserts
that discovery is necessary on the issue of whether he filed an ARP relating to the destruction of
his property.
He seeks evidence to establish that he submitted such an ARP to Officer Gibbner
on May 5, 2017, that Officer Gibbner did not provide a copy of the ARP to him and threatened to
return him to segregation if he challenged the destruction of his property, and that as result of
such "game-playing," such administrative remedies were not available to him.
Pl.'s Rule 56(d)
Aff. at 2, ECF No. 14. Complaining that his appeals to the Inmate Grievance Office ("I GO") are
always dismissed, he also seeks records of the history of his other ARP filings to show that the
ARP process is a "sham." Id. at 4.
Defendants have, in fact, provided the history of his ARP
3
filings by attaching Germain's ARP Index to the Motion. As for the other requested information,
the Court concludes that discovery is not necessary to allow Germain to oppose the Motion
because, as discussed in greater detail below, even assuming that the facts Germain seeks to
establish through discovery are true, he has failed to state a valid federal claim. The Court will
therefore construe the motion as seeking summary judgment for purposes of the exhaustion of
administrative remedies argument, but as a motion to dismiss for all other purposes.
Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the
moving party demonstrates there is no genuine issue as to any material fact, and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317,322 (1986). In assessing the Motion, the Court views the facts in the light most
favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts supported in
the record, not simply assertions in the pleadings.
346 F.3d 514, 522 (4th Cir. 2003).
Bouchat v. BaIt. Ravens Football Club, Inc.,
The nonmoving party has the burden to show a genuine
dispute on a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986).
A fact is "material" if it "might affect the outcome of the suit under the
governing law." Anderson, 477 U.S. at 248.
A dispute of material fact is only "genuine" if
sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict for
that party. Id. at 248-49.
II.
Exhaustion of Administrative Remedies
Defendants argue that Germain's Complaint necessarily fails because he did not exhaust
administrative remedies.
No. 104-134
S 803,
Under the Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L.
110 Stat. 1321 (1996) (codified as amended at 42 U.S.C.
4
S
1997e(a»:
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.
S
42 U.S.C.
1997e(a) (2012).
A prisoner's
failure to exhaust administrative remedies is an
affirmative defense, and defendants bear the burden of proving that the prisoner had available
remedies but failed to take advantage of them. Jones v. Bock, 549 U.S. 199,216 (2007); Moore
v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). This exhaustion requirement serves a valuable
function by "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,
549 U.S. at 219.
Inmates must exhaust administrative remedies before they bring any "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).
In Maryland prisons, the Administrative Remedy Procedure is the administrative process
that must be exhausted. First, a prisoner must file an ARP with the warden of the prison within
30 days of the incident or when the prisoner gains knowledge of the injury giving rise to the
complaint. See Md. Code Regs. ("COMAR")
SS
12.07.01.04-05.A. (2017). Second, ifthe ARP
is denied, a prisoner must file an appeal with the Commissioner of Correction within 30 days.
COMAR
S
12.07.01.05.C. An appeal to the Commissioner of Correction may also be filed ifthe
warden does not respond within 30 days to the initial ARP. COMAR 12.02.28.14(B)(5).
If the
appeal is denied, the prisoner must appeal within 30 days to the IGO. See Md. Code. Ann., Corr.
Servs.
SS
10-206, 10-210 (West 2002); COMAR
SS
12.07.01.03, 12.07.01.05.B.
Inmates may
seek judicial review of the IGO's final determinations in a Maryland Circuit Court. Md. Code
Ann., Corr. Servs.
S
10-210.
5
Exhaustion is mandatory and generally may not be excused unless the administrative
procedure is not available.
See Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (An inmate "must
exhaust available remedies, but need not exhaust unavailable ones.").
"[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, 517 F.3d at 725. In Ross, the Court outlined
three circumstances
when an administrative remedy is unavailable and an inmate's duty to
exhaust available remedies "does not come into play."
Ross, 136 S. Ct. at 1859.
First, "an
administrative procedure is unavailable when (despite what regulations or guidance materials
may promise) it operates as a simple dead end-with
provide any relief to aggrieved inmates."
opaque that it becomes, practically
officers unable or consistently unwilling to
!d. Second, "an administrative scheme might be so
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 administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
Here, although Germain filed an ARP on May 5, 2017 in which he asserted that he had
not received the means to lock his personal property up for safekeeping as required by prison
policy, it is undisputed that this ARP did not address the destruction of Germain's personal
property. Rather, Germain claims that on May 5,2017, he also submitted an ARP on the issue of
the destruction of his personal property, but he did not receive a copy of it back. Although he
could not know whether the ARP was actually being processed, he never sought clarification on
whether it was accepted for filing, nor did he appeal the failure to process it or respond to it to
the Commissioner of Correction or to the IGO. Rather than seek to determine what happened to
the ARP, Germain immediately
filed his Complaint in this Court, only six days after he
6
submitted the ARP, a period of time which would have been entirely insufficient under any
circumstances for the Warden to review and rule on the ARP, much less for the entire ARP
process to be completed. Germain's actions thus exhibit that he failed to exhaust administrative
remedies on his property claim.
Germain, however, asserts that he did not pursue the ARP process because after he
submitted his ARP, Officer Gibbner threatened
him with "being returned to disciplinary
segregation if I were to follow through with challenging the destruction of my property."
Rule
56(d) Aff. at 5. Thus, Germain argues that ~he ARP process was effectively unavailable to him
because of the alleged intimidation by Officer Gibbner.
The ARP process could be deemed
unavailable to Germain if (l) the threat or intimidation actually deterred Germain from lodging a
grievance or pursuing a particular part of the administrative process; and (2) the threat would
deter a reasonable inmate of ordinary firmness and fortitude from doing so. See, e.g., Tuckel v.
Grover, 660 F.3d 1249, 1254 (lOth Cir. 2011); see also Kaba v. Stepp, 458 F.3d 678,685-86 (7th
Cir. 2006); Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004). The Court need not decide
this issue because, as discussed below, Germain has failed to state a plausible claim for relief.
III.
Failure to State a Claim
Germain's claims fail because he has not stated a constitutional claim arising from the
destruction of his personal property.
First, Germain has alleged no facts that would support a
plausible equal protection claim against Defendants.
None of his assertions would support a
claim that Defendants have treated Germain differently, whether in relation to personal property
or the ARP process, based on any particular classification.
Second, to the extent that the
Complaint could be construed as asserting a due process claim relating to the destruction of
Germain's personal property, such a claim also fails. The United States Supreme Court has held
7
that claims of negligent deprivation of property by a prison official do not implicate the Due
Process Clause. See Daniels v. Williams, 474 U.S. 327, 335-36 (1986). A claim of intentional
deprivation of property by a prison official also would not state a constitutional due process
claim, provided that the prisoner has access to an adequate post-deprivation remedy. Hudson v.
Palmer, 468 U.S. 517, 533 (1984); Tydings v. Dep't of Corrections, 714 F.2d 11, 12 (4th Cir.
1983) (finding that Virginia law provides for an adequate post-deprivation remedy). The right to
seek damages and injunctive relief in Maryland courts in a tort action constitutes an adequate
post-deprivation remedy for inmates in Maryland prisons. See Juncker v. Tinney, 549 F. Supp.
574, 579 (D. Md. 1982) ("[T]here is no question that the relief available to plaintiff in state court
is adequate."); see also Hawes v. Foxwell, No. DKC-17-2598, 2018 VlL 2389060 at *4 (D. Md.
May 25, 2018) (noting that the Maryland Tort Claims Act and the IGO provide adequate postdeprivation remedies), Fuller v. Warden, No. WMN-12-43, 2012 WL 831936 at *2 (D. Md. Mar.
8, 2012). Thus, Germain's claim that his personal property was intentionally destroyed does not
state a constitutional claim for relief.
See Hawes, 2018 WL 2389060 at *4 (D. Md. May 25,
2018) (dismissing an inmate's property loss claim for failure to state a cognizable constitutional
claim); Fuller v. Horning, No. WMN-11-1917, 2012 WL 2342947, at *7 (D. Md. June 19,2012),
aff'd, 504 F. App'x 218 (4th Cir. 2013) (stating that "removal of property from a prisoner simply
does not state a constitutional
claim"); Young-Bey v. Miller, No. JKB-16-3435,
2b18 WL
4108076 at *4 (D. Md. Aug 29,2018) (holding that a claim that personal property was destroyed
did not assert a constitutional violation).
Germain argues that this state remedy is inadequate because Maryland law requires him
to exhaust administrative remedies before filing a claim in state court, but he has failed to do so
because of the alleged intimidation by Officer Gibbner. Under the Maryland Prison Litigation
8
Act ("PLA"), Md. Code Ann., Cts. & Jud. Proc.
S
5-1001 to 5-1007 (2013), prisoners must
attach to their civil complaints proof that administrative remedies have been exhausted. Id.
1003(b).
Failure to provide such proof is grounds for dismissal.
Id.
S
5-l003(b)(3),
S 5(c).
Maryland courts, however, have previously considered and accepted arguments from prisoners
that exhaustion was not required under the relevant facts. See Evans v. State, 914 A.2d 25, 72
(Md. 2006)
(excusing
pre-filing
exhaustion
where the administrative
process
was later
completed); Massey v. Galley, 898 A.2d 951, 961 (Md. 2006) (considering and accepting the
argument that because a civil action was brought under the Maryland Public Information Act,
exhaustion was not required).
In particular, a Maryland court may consider an argument that the
failure to exhaust administrative remedies should be excused because of misconduct by prison
officials. See McCann v. Shearin, No. 2752 Sept. Term 2013, 2016 W'L 4548698 at *3-4 (Md.
Ct. Spec. App. Aug. 30, 2016) (considering but rejecting a prisoner's claim that his failure to
exhaust should be excused due to misconduct by prison staff because "the record contradict his
contentions that administrative remedies are unavailable to him").
Where Germain did not file a state court action in which he could have sought relief from
the exhaustion requirement as part of his claim, but instead filed a federal civil action only six
days after the incident underlying his claim, the Court will not conclude that the standard state
post-deprivation remedy is unavailable and inadequate.
Because Germain has an adequate post-
deprivation state law claim, he does not have a viable due process claim in this Court.
See
Hudson, 468 U.S. at 535 (finding no due process claim arising fi'om the destruction of a
prisoner's personal property where the state had provided an adequate post-deprivation remedy).
9
Because Germain has not stated a viable constitutional claim, his ~ 1983 claims must be
dismissed.
In the absence of a federal claim, the Court declines to exercise supplemental
jurisdiction over Germain's state law claim. See 28 U.S.c. ~ 1367(b)(3) (2012).
CONCLUSION
For the foregoing reasons, the Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment, will be GRANTED. A separate Order shall issue.
Date: September 19,2018
THEODORE D. CHUA
United States District J
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