Blake v. Ross
Filing
110
MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 11/14/2012. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
SHAIDON BLAKE,
Plaintiff,
v.
Civil Action No. 8:09-cv-02367-AW
GARY MAYNARD et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Shaidon Blake brings this action against Defendants Michael Ross and James
Madigan. Plaintiff asserts § 1983 claims for excessive force and deliberate indifference. Pending
is Plaintiff’s Motion for Reconsideration. On November 2, 2012, the Court held a hearing on said
Motion. For the reasons articulated herein, the Court GRANTS IN PART AND DENIES IN
PART Plaintiff’s Motion for Reconsideration.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The Court extracts the following facts from its Memorandum Opinion of May 10, 2012
(May 2012 Opinion), updating them to reflect subsequent developments in the record. This case
arises from a beating Plaintiff sustained at the hands of a prison guard. Plaintiff Shaidon Blake,
a/k/a Shamvoy Smith, is an inmate of the Maryland Division of Correction (DOC). Defendants
James Madigan and Michael Ross are prison guards and were involved in the series of events
leading to the instant dispute. Although Blake sued other individuals in his initial Complaint, the
Court has erstwhile dismissed them. See Doc. No. 32 at 8–9.
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On June 21, 2007, Blake received a notice of infraction based on allegations that he
interrupted the orderly use of the telephone in Maryland Reception, Diagnostic, and
Classification Center (MRDCC) Unit 7C. In connection with this incident, Madigan and Ross
went to Blake’s cell, handcuffed him, and escorted him out of his cell. Ross held Blake by the
arm and Blake offered no resistance. Ross and Blake proceeded to the concrete staircase that
leads to the lower part of Unit 7C with Madigan trailing behind. The trio reached the staircase
and started to descend, whereupon Madigan shoved Blake from behind. Ross thereupon told
Madigan that he had Blake under control.
Eyewitness accounts diverge sharply at this point. In essence, Defendants contend that
the trio stopped moving toward the segregation unit and Madigan “unexpectedly punched Mr.
Blake in the face several times in quick succession.” Doc. No. 94-1 at 6. In contrast, Blake
asserts that there was a “clear buildup to the assault at issue.” Doc. No. 96 at 4. After this alleged
buildup, Blake contends that Madigan punched him in the face several times with a “fist
clenched over a key ring.” Id. Blake also asserts that there were intermittent pauses during the
assault.
Madigan then ordered the hallway officer, Latia Woodard, to mace Blake, which she
refused. Instead, Woodard issued a “Signal 13” code over the radio, thereby summoning the
assistance of other correctional officers.
The Parties’ stories diverge at this point as well. The Parties agree that, in one way or the
other, Ross took Blake to the ground. Defendants assert that Ross and Madigan
“attempted to bring Mr. Blake to the floor” and that the three tripped and fell during the process.
Doc. No. 94-1 at 7. Ross’s alleged motive in taking Blake to the floor was to “demonstrate
control over Mr. Blake so that the other arriving officers would not continue to escalate the use
2
of force against Mr. Blake.” Id. For his part, Blake insists that Madigan and Ross picked him up
and slammed him violently to the ground on his head. Doc. No. 96 at 5. Blake further asserts that
Ross “dropped his knee on Blake’s chest.” Id.
Thereafter, Blake was taken to the medical unit. Blake received a preliminary
examination, after which he returned to his cell. The incident was referred to the Internal
Investigative Unit (IIU) of the Department of Public Safety and Correctional Services (DPSCS).
The IIU conducted an investigation and completed a comprehensive report. The IIU report
concluded that, inter alia, Madigan used excessive force during the incident described above.
Consequently, Madigan was charged with various violations, a process that culminated in his
entering into a settlement agreement pursuant to which he resigned in lieu of being fired.
On September 8, 2009, Blake filed a pro se Complaint asserting a § 1983 claim based on
Madigan’s attack and the surrounding events. Doc. No. 1. On February 4, 2010, Ross, among
others, filed a Motion to Dismiss or, in the Alternative, for Summary Judgment (Motion to
Dismiss).1 On September 9, 2010, the Court issued a Memorandum Opinion that, while granting
the Motion in relation to other Defendants, denied it as to Ross. Doc. No. 32. In the September
2010 Opinion, the Court rejected the contention that Ross was entitled to qualified immunity,
concluding that genuine issues of material fact existed concerning whether he had
unconstitutionally failed to intervene. See id. at 7–8.
On August 2, 2011, Ross filed a Consent Motion for Leave to Amend his Answer to the
Complaint (Consent Motion to Amend Answer). Doc. No. 66. Ross’s proposed amended answer
asserted some new defenses, including that Ross had failed to exhaust administrative remedies
under the Prison Litigation Reform Act (PLRA). Later that month, despite having consented to
1
Madigan was not in the case at this point. Madigan has since answered. Doc. No. 53. Madigan has not
moved for summary judgment or otherwise sought to have the action dismissed.
3
Ross’s amendment, Blake filed a Motion to Strike Certain of Ross’s Affirmative Defenses
(Motion to Strike Certain Defenses), arguing that Ross waived the right to raise them by failing
to do so earlier in the proceeding. Doc. No. 74. Blake subsequently lodged an Amended
Complaint via consent motion, thus mooting his Motion to Strike Certain Defenses. See Doc.
Nos. 78-1, 85. Ross answered the Amended Complaint. Doc. No. 84. Ross’s answer restates the
affirmative defense of failing to exhaust administrative remedies under the PLRA.
On October 24, 2011, Blake filed a Motion to Strike Defendant Ross’s Fifth Affirmative
Defense (Motion to Strike). Doc. No. 87. In this Motion, as in the Motion to Strike Certain
Defenses, Blake sought to strike Ross’s PLRA defense on a waiver theory.
On January 9, 2012, Ross filed a Motion for Summary Judgment. Doc. No. 94. Ross
pressed two primary arguments in this Motion: (1) that Blake failed to exhaust administrative
remedies; and (2) that the evidence was insufficient to support Blake’s § 1983 excessive force
and deliberate indifference claims.
On May 10, 2012, the Court issued a Memorandum Opinion and Order (May 2012
Opinion) denying Blake’s Motion to Strike and granting Ross’s Motion for Summary Judgment.
In granting Ross’s Motion for Summary Judgment, the Court held that Blake failed to exhaust
administrative remedies inasmuch as he failed to file a complaint with the Inmate Grievance
Office (IGO). The Court also held that, as a matter of general statutory construction of the Prison
Litigation Reform Act (PLRA), the DPSCS’ internal investigation failed to justify Blake’s
failure to exhaust administrative remedies. In denying Blake’s Motion to Strike, the Court
carefully reviewed the record and determined that Ross properly raised the failure to exhaust
defense in a responsive pleading and that Blake could show no prejudice because of Ross’s
somewhat belated assertion of the defense.
4
On June 4, 2012, Blake filed a Motion for Reconsideration of the Court’s May 2012
Opinion. Doc. No. 101. Ross originally filed no response to this Motion. However, before ruling
on this Motion, the Court deemed it advisable to schedule a hearing. Subsequently, Ross
responded to the Motion, and it has become ripe. By and large, Blake’s Motion for
Reconsideration rehashes arguments that the Court rejected in its May 2012 Opinion.
The Motion for Reconsideration, however, does raise a few novel arguments. For
instance, Blake asserts that the Court’s decision prejudices him inasmuch as it portends to create
a statute of limitations bar. Blake also contends that the Court’s May 2012 Opinion was
overbroad insofar as it applied to Madigan, who failed to move for summary judgment, failed to
assert the failure to exhaust defense until the recent hearing, and whose liability has never
seriously been in dispute.
II.
STANDARD OF REVIEW
Blake seeks reconsideration of the Court’s May 2012 Opinion under Rule 59(e) of the
Federal Rules of Civil Procedure. “While the Rule itself provides no standard for when a district
court may grant such a motion, courts interpreting Rule 59(e) have recognized three grounds for
amending an earlier judgment: (1) to accommodate an intervening change in controlling law; (2)
to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent
manifest injustice.” Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). Only ground (3)
is relevant to the instant Motion.
III.
LEGAL ANALYSIS
A.
Blake’s Claims Against Madigan
Blake argues that the Court improperly dismissed his claims against Madigan because
Madigan failed to raise the defense of failure to exhaust. Blake also argues that dismissal of his
5
claims against Madigan for failing to exhaust administrative remedies was improper because (1)
Madigan did not move for summary judgment and (2) Madigan’s liability is not seriously in
dispute.
The Court agrees with Blake’s first argument. The Court’s May 2012 Opinion was
overbroad in that it seemed to apply, sua sponte, Ross’s failure to exhaust defense to Blake’s
claims against Madigan. Failure to exhaust administrative remedies is an affirmative defense for
which Madigan bore the burden of proof. Jones v. Bock, 549 U.S. 199, 212 (2007); Moore v.
Bennette,
517
F.3d
717,
725
(4th
Cir.
2008)
(citations
omitted).
Furthermore,
“a party’s failure to raise an affirmative defense in the appropriate pleading [usually] results in
waiver . . . .” Brinkley v. Harbour Recreation Club, 180 F.3d 598, 612 (4th Cir. 1999).
Additionally, the Fourth Circuit has held that, although district courts may raise the issue of
exhaustion of administrative remedies under the PLRA sua sponte, “a district court cannot
dismiss the complaint without first giving the inmate an opportunity to address the issue.”
Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 682–83 (4th Cir. 2005).
In this case, Madigan failed to raise the failure to exhaust defense in his answer, failed to
move for summary judgment, and failed to respond to Blake’s Motion for Reconsideration.
Indeed, Madigan failed to argue that Ross’s failure to exhaust defense applied to him until the
recent hearing. Therefore, Madigan waived the right to assert the failure to exhaust defense.
Furthermore, as Madigan never raised the defense, it is hard to see how he carried the burden of
proof. Moreover, even if sua sponte dismissal were otherwise proper, the Court did not give
Blake the required notice.
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For these reasons, the Court grants Blake’s Motion for Reconsideration as to Madigan.
The Court will reopen the case and allow Blake to proceed with his excessive force claim against
Madigan. This disposition moots Blake’s alternative argument.
B.
Blake’s Claims Against Ross
Blake makes a series of arguments purporting to demonstrate that the Court erred in
granting summary judgment in Ross’s favor. The Court addresses these arguments one by one.
1.
Whether Ross Waived the Right to Assert the Failure to Exhaust Defense
Blake argues that the Court erred in its determination that Ross did not waive his right to
assert the PLRA defense considering his somewhat belated raising of it. The Court rejects this
argument for the reasons stated in its May 2012 Opinion. As noted therein, Ross properly raised
the defense in a consent motion to amend his answer. Furthermore, Blake later filed a consent
motion to amend his complaint, in response to which Ross again properly raised the PLRA
defense.
The Court also determined in its May 2012 Opinion that Blake had failed to show
prejudice sufficient to support a finding of waiver. Blake now argues that Ross’s somewhat
belated raising of the defense will prejudice him inasmuch as it will create a statute of limitations
bar. Blake asserts that the statute of limitations will have expired by the time he exhausts
administrative remedies and refiles his suit against Ross.
This argument fails for reasons at once procedural and substantive. In terms of procedure,
Blake neglected to raise this argument in his opposition to Ross’s Motion for Summary
Judgment even though he easily could have envisioned this eventuality. Considering this
omission, even if one assumes that the prospect of a time-bar is a relevant consideration in terms
of prejudice, the Court’s previous determination does not constitute a clear error of law.
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As for substance, the purported prejudice of which Blake complains is prejudice of his
own doing. Had Blake exhausted administrative remedies before filing suit, he would not face
the prospect of having to exhaust administrative remedies and then refiling suit. Consequently,
the prejudice Blake now faces is hardly different than the prejudice a plaintiff confronted with a
meritorious PLRA defense inevitably faces. Furthermore, it is somewhat speculative to conclude
that Blake would have managed to exhaust administrative remedies before the expiration of the
statute of limitations had Ross raised said defense earlier.
Additionally, under well-settled Fourth Circuit precedent, plaintiffs may raise the PLRA
defense on motion for summary judgment. See Brinkley v. Harbour Recreation Club, 180 F.3d
598, 612 (4th Cir. 1999). Likewise, courts may raise the issue of exhaustion of remedies on its
own motion. Anderson, 407 F.3d at 682. Motions for summary judgment may be filed quite
some time after the commencement of a case. So too may courts raise the issue of exhaustion at a
later stage in the proceedings. Therefore, at least in some cases, Fourth Circuit precedent
contemplates that dismissing inmate suits on failure to exhaust grounds may lead to a limitations
bar.
For the foregoing reasons, the Court committed no error in determining that Ross did not
waive his PLRA defense.
2.
Whether the DPSCS’ Internal Investigation Excused Blake from Exhaustion
Rehashing an argument already raised and rejected, Blake argues that the DPSCS’
internal investigation excused him from filing an administrative grievance as a matter of general
statutory construction. The Court rejects this argument for the reasons stated in its May 2012
Opinion. As the Court noted in its Opinion, the Sixth, Seventh, and Ninth Circuits have
8
addressed this very question and held that the commencement of an internal investigation does
not relieve prisoners from the PLRSA’s exhaustion requirement.
Blake responds that a few cases from the District of Maryland dictate a different result,
including this Court’s decision in Thomas v. Bell, Civil Action Nos. AW-08-2156, AW-08-3487,
AW-09-1984, AW-09-2051, 2010 WL 2779308, at *3 (D. Md. July 7, 2010). See also Bogues v.
McAlpine, Civil Action No. CCB–11–463, 2011 WL 5974634, at *4 (D. Md. Nov. 28, 2011);
Williams v. Shearin, Civil No. L–10–1479, 2010 WL 5137820, at * 2 n.2 (D. Md. Dec. 10,
2010). However, these cases are unreported and are not as carefully reasoned as the Circuit
authority mentioned above. Furthermore, Thomas and Bogues relied on a version of the
Department of Correction Directives (DCD) that was not in effect at the time of the alleged
assault. See DCD 185-003.VI.N.4 (Aug. 27, 2008). For its part, Williams does not cite any
authority in reaching the conclusion that the commencement of an internal investigation
precludes dismissal for the failure to exhaust.
Accordingly, Blake’s counterarguments are not well-taken. The DPSCS’ internal
investigation did not excuse Blake from exhausting administrative remedies.
3.
The Relationship, or Lack Thereof, of the IGO and ARP Processes
Blake argues that the Court’s reasoning that the IGO and ARP processes are legally
distinct is unsound. As explained below, this is a mischaracterization of the Court’s reasoning.
Maryland law implements an inmate grievance process that generally consists of three
levels.
The
first
level
is
called
the
Administrative
Remedy
Procedure
(ARP).
The ARP “is a formal way to resolve complaints or problems that an inmate has been unable to
resolve
informally.”
Md.
Div.
of
Corr.,
Inmate
Handbook
30
(2007),
http://www.dpscs.state.md.us/publicinfo/publications/pdfs/2007_Inmate_Handbook.pdf. Usually,
9
the ARP process involves filing a request for administrative remedy with the warden of the
institution in which the inmate is incarcerated. See id.; Chase v. Peay, 286 F. Supp. 2d 523, 529
n.10 (D. Md. 2003). The second step, for its part, entails appealing the warden’s decision to the
Commissioner of Correction. See id.; Chase, 286 F. Supp. 2d at 529 n.10. The third, and final,
step occasions appealing the Commissioner’s decision to the Inmate Grievance Office (IGO).
See id.; Chase, 286 F. Supp. 2d at 529 n.10.
Blake argues that the Court’s statement that the IGO process is “legally and practically
distinct” from the ARP process contradicts its conclusion that prisoners must exhaust the IGO
process when the ARP process is unavailable. Blake suggests that the IGO and ARP process are
mutually exclusive such that the exhaustion of one obviates the need to exhaust the other.
Contrary to Blake’s contentions, the Court expressly noted that the IGO grievance
procedure is generally interrelated with the ARP process. The Court explained that the IGO
process is the default process under Maryland law and applies to inmate grievances except when
the ARP process is applicable. The Court then determined that, consistent with Blake’s own
contentions, the ARP process was inapplicable to his grievance because of the DPSCS’ internal
investigation. See Md. Code Ann., Corr. Servs. § 10-206(a); COMAR 12.07.01.02D. Therefore,
this argument lacks merit.
4.
Whether the Court Erred By Relying on the Wrong Version of a Directive
In a footnote, Blake argues that the Court erred by relying on DOC directives that were
not in effect when the underlying assault took place. Specifically, Blake observes that the Court
relied on DCD 185-003.VI.N.4 for the proposition that the internal investigation removed
Blake’s complaint from the ARP process, with the result that he had to pursue the default IGO
process. Blake further notes that the DOC issued this directive on August 27, 2008, which is
10
after the occurrence of the underlying assault. Blake concludes that the Court should reconsider
its Opinion on this basis.
The Court disagrees. Although Blake correctly observes that DCD 185-003.VI.N.4 was
not in effect when the assault took place, Plaintiff fails to explain how this excuses Blake’s
admitted failure to file a grievance with the warden or the IGO. Blake concedes that he was
aware of the ARP process and was in possession of an inmate handbook detailing the process.
Blake’s only proffered excuse for his failure to file an ARP grievance is that, in his subjective
belief, the DPSCS’ internal investigation relieved him from this requirement.
Furthermore, the DOC directive that was in effect at the time of the assault appears to
authorize inmates to use either the ARP or IGO process to file grievances based on the “[u]se of
force.” Compare DCD 185-002.IV.C.6, with DCD 185-002.IV.R (Feb. 15, 2005). Thus, the
Court’s misplaced reliance on DCD 185-003.VI.N.4 failed to prejudice Blake and the Court
affirms its determination that Blake failed to exhaust administrative remedies.
5.
Whether Blake’s Failure to Exhaust Administrative Remedies Was Justified Due
to Ambiguity in Maryland’s Remedy Procedures
The argument fails for essentially the same reasons as the prior one. There is very little, if
any, ambiguity in Maryland’s inmate grievance procedures. At the time of the assault, the DOC
directives and inmate handbook gave Blake ample notice of his requirement to exhaust
administrative remedies. Accordingly, this argument lacks merit.
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6.
Whether to Reopen and Stay the Case to Prevent a Statute of Limitations Bar
Blake requests the Court to reopen and stay the case even if it otherwise denies his
Motion for Reconsideration to obviate a time-bar. The Court denies this request. Generally,
courts lack discretion to stay prison-conditions suits under the PLRA. See Boeh v. Horning, Civil
Action No. RDB-09-2365, 2010 WL 997056, at *3 (D. Md. Mar. 16, 2010). Furthermore, due to
Blake’s admitted failure to even attempt to exhaust administrative remedies, this case presents no
overriding considerations of fairness. Therefore, the Court declines to reopen and stay the case.
7.
Whether to Equitably Toll the Statute of Limitations
Alternatively, Blake asks the Court to equitably toll the statute of limitations while he
tries to exhaust administrative remedies. The Court denies this request as well. Generally, a
prisoner “is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (citation and internal quotation marks
omitted). Here, Blake has not shown that he has pursued his rights diligently. Moreover, Blake
has failed to identify an extraordinary circumstance that prevented him from exhausting
administrative remedies. To reiterate, Blake has conceded that he decided not to exhaust
remedies only because of his subjective belief that he faced no such requirement. Moreover, the
applicable DOC directives and inmate handbook clearly spelled out Maryland’s administrative
remedy procedures. Accordingly, the Court declines to equitably toll the statute of limitations.
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IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
Blake’s Motion for Reconsideration. A separate Order follows.
November 14, 2012
Date
/s/
Alexander Williams, Jr.
United States District Judge
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