Brightwell v. Hershberger et al
Filing
183
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/31/2016. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DAVID BRIGHTWELL
:
v.
:
Civil Action No. DKC 11-3278
:
GREGG L. HERSHBERGER, et al.
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
are:
(1)
a
motion for summary judgment filed by Defendants former warden of
Roxbury Correctional Institution Gregg L. Hershberger, Lt. Gary
Winters, Sgt. James Stotler, C.O. II Roy Hess, C.O. II Marvin
Gillespie,
motion
and
for
C.O.
leave
II
to
Chaz
file
Younger
a
(“Defendants”)
surreply
by
;
Plaintiff
(2)
a
David
Brightwell (“Plaintiff”); and (3) a motion for leave to file a
supplemental
Plaintiff.
brief
in
opposition
to
summary
(ECF Nos. 141; 172; 180).
judgment
by
The issues have been
fully briefed, and the court now rules, no hearing being deemed
necessary.
Local
Rule
105.6.
For
the
following
reasons,
Defendants’ motion for summary judgment will be granted in part
and
denied
surreply
in
will
part;
be
Plaintiff’s
granted
in
motion
part
and
for
leave
denied
in
to
file
part;
a
and
Plaintiff’s motion to file a supplemental brief will be denied.
I.
Background
A.
Factual Background1
Plaintiff has been an inmate in the Maryland prison system
since 1997.
(ECF No. 163-1 ¶ 2).
In April 2009, he was moved
to Roxbury Correctional Institution (“RCI”), where he was placed
in Housing Unit 5. (Id. ¶ 4; ECF No. 163, at 7).
According to
Plaintiff, Housing Unit 5 was “an environment where correctional
officers . . . were given virtually free reign . . . to harass
inmates for no valid reason.”
(ECF No. 163, at 13).
Plaintiff
began having trouble with the correctional officers at RCI very
soon
after
his
arrival.
As
the
result
of
a
prior
injury,
Plaintiff has an arm injury that led the medical staff at his
previous place of incarceration to issue an order that he should
be handcuffed in front of his body on a permanent basis.
No. 164-1, at 247).
(ECF
Plaintiff asserts that Defendants and other
correctional officers at RCI refused to agree to cuff him in the
front.
Plaintiff refused to be cuffed from behind, and, in
turn, the correctional officers would not allow him access to
various activities that required him to leave his cell.
Nos.
163-1
¶
interactions,
22;
163-2
Plaintiff
¶¶
4,
filed
7).
As
a
complaints
result
(ECF
of
these
through
the
Administrative Remedy Procedure (“ARP”) process with the Warden
1
Unless otherwise noted, the facts outlined here are
undisputed or construed in the light most favorable to
Plaintiff.
2
of RCI, Defendant Hershberger.
(See, e.g., ECF No. 164-1, at
104, 107, 115, 127, 251, 346, 370).
Plaintiff
filed
after
being
One of the first ARPs that
transferred
to
RCI
was
against
Defendant Winters on June 4, 2009, for informing him that he
would have to be cuffed with his hands behind his back from now
on.
(Id. at 251).
On October 1, 2009, Defendants attempted to move Plaintiff
and another inmate into a shared cell.
Plaintiff
had
long-standing
(ECF No. 163-1 ¶ 29).
emotional
issues,
paranoia, about being celled with another inmate.
According
refused
to
assaulted
to
Plaintiff,
cooperate
them.
when
during
(Id.
¶
both
the
29;
he
and
transfer,
ECF
No.
the
including
(Id. ¶ 16).
other
several
164-1,
inmate
Defendants
at
265-67).
Defendants tell a markedly different story of the October 1
encounter.
They allege that Plaintiff attacked the other inmate
while they attempted to transfer him into the cell and that any
injuries sustained by Plaintiff were the result of fighting with
the other inmate and their reasonable efforts to subdue the two
fighting prisoners.
(ECF No. 141-1, at 7).
After the alleged
assault, Plaintiff filed an ARP describing his version of the
incident and suggesting that Defendant Winters was behind the
transfer of the other inmate and, in turn, the assault, because
of the numerous administrative complaints Plaintiff had filed,
including,
in
particular,
the
one
3
against
Defendant
Winters.
(ECF No. 164-1, at 265-67).
mentioned
in
Hershberger
the
assigned
interviewing
Even though Defendant Winters was
complaint,
Winters
Plaintiff
and
it
to
appears
that
investigate
Defendant
this
Defendant
ARP.
Gillespie,
After
Defendant
Winters found that there was “no merit to [Plaintiff’s] claims”
and recommended dismissal of the ARP.
(Id. at 260).
On October 16, Plaintiff was moved to a different cell in
Housing Unit 5 where he was told he would have a cellmate.
Plaintiff again stated that he would not share a cell.
163-1
¶
33).
According
to
Plaintiff
and
his
(ECF No.
witnesses,
Defendants dragged him up the stairs, put him into the new cell,
and physically beat him.
(Id.; ECF No. 163-2 ¶ 8).
filed an ARP for this purported attack as well.
at 298).
October
Plaintiff
(ECF No. 164-1,
Apparently believing this ARP to be related to the
1
incident,
Defendant
Hershberger
complaint as having been already addressed.
dismissed
(Id.).
this
Plaintiff
appealed this decision up to a hearing with an administrative
law judge (“ALJ”), who, after distinguishing between the two
incidents,
ruled
on
the
merits
that
Plaintiff’s
witnesses,
“while supportive of [his version], did not offer convincing
4
testimony to bolster [his] rendition of events.”
(ECF No. 141-
2, at 155-65).2
From that October until February 2011, Plaintiff continued
to face a litany of smaller issues related to his refusal be
cuffed behind his body.
haircuts,
showers,
He filed numerous ARPs alleging missed
lunches,
and
physical
therapy
sessions.
(See, e.g., ECF No. 164-1, at 104, 107, 115, 127, 251, 346,
370).
In
cellmate,
various
December
and
2010,
Plaintiff
issues
Mr.
Darnell
encouraged
Owens
correctional officers.
had
Owens
him
with
to
the
became
Plaintiff’s
submit
ARPs
Housing
(ECF No. 163-1 ¶¶ 41-42).3
over
Unit
5
According to
the cellmates, Defendants later offered a “truce” to them if
they agreed to stop filing ARPs.
(Id. ¶ 41; ECF No. 163-3 ¶ 4).
But after hearing what they believed to be a beating in a cell
near
theirs,
Defendant
Plaintiff
Stotler
and
wrote
notes
another
on
February
Housing
Unit
4,
5
2011,
to
Sergeant
“protesting” the beatings and saying, “[F]rom now on when you
want to jump on any prisoner illegally, [then] come and beat and
jump on me also. Let it be known, that if you all want to jump,
2
The ALJ found it noteworthy that Plaintiff had filed a
sick call slip on October 17 but had only mentioned normal
pains, nothing to do with an assault. (ECF No. 141-2, at 163).
3
The record indicates that Mr. Owens had not filed a single
ARP prior to moving in with Plaintiff in December 2010, but
thereafter filed four in his first month in Housing Unit 5.
(ECF No. 164 ¶ 2).
5
beat, and kill a prisoner illegally [then] let it be me.”
(ECF
No. 164-2, at 91-95).
Plaintiff avers that Defendants assaulted him for a third
time the day after he delivered these notes.
On February 5,
Defendants stopped Plaintiff after his shower, pulled him into a
cell, and assaulted him.
(ECF No. 163-1 ¶¶ 46-47).
Defendants
deny that they attacked Plaintiff that day and contend that
nothing unusual at all happened on February 5.
(ECF No. 141-1,
at 35).
B.
Procedural Background
Maryland’s administrative remedy procedures are discussed
in
more
alleged
detail
in
assault
administrative
the
in
exhaustion
February
complaints.
section
2011,
First,
below.
Plaintiff
he
sent
a
After
filed
letter
the
three
to
the
Internal Investigative Unit (“IIU”), an independent group that
investigates employee misconduct.
Second,
Plaintiff
sent
a
Grievance
Office
(“IGO”),
available
in
ARP
the
(ECF No. 164-2, at 127-29).
grievance
the
directly
highest
process.
(Id.
level
at
to
the
of
adjudicator
135-36).
Inmate
The
IGO
dismissed his complaint for having not previously exhausted the
lower levels of the ARP process.
about the incident.
(Id.).
Third, he filed an ARP
Because ARPs had to be received and signed
by on-duty officers, who Plaintiff says refused to accept his
ARPs, he mailed this ARP directly to Defendant Hershberger as
6
Warden.
(ECF
eventually
No.
163-1
received
the
¶
52).
mailed
The
complaint
because it was not properly signed.
ARP
coordinator
dismissed
the
who
ARP
(ECF No. 164-2, at 139).
Plaintiff appealed this dismissal first to the second level of
the
ARP
procedure,
the
Commissioner
of
Corrections
-
who
affirmed the decision - then, up to the IGO - which decided to
hold a hearing on the case in front on an ALJ.
153).
That
hearing
occurred
on
November
(Id. at 1389,
2011,
Plaintiff’s witnesses were not present when he arrived.
but
When
the ALJ told Plaintiff that the institution would attempt to
bring one of those witnesses, Mr. Owens, to the hearing, but
that he had to present his case with or without the witnesses,
Plaintiff refused to proceed.
(Id. at 193-201).
The next day, more than a month before the ALJ issued her
opinion, Plaintiff, representing himself, filed the instant suit
in
federal
court
seeking
damages
and
injunctive
violations of state tort law and 42 U.S.C. § 1983.
relief
for
(ECF No. 1,
at 4). He filed his First Amended Complaint on December 21,
2011.
(ECF No. 6-1).
Defendants’
motion
On February 26, 2013, this court granted
to
dismiss
in
part,
authorized
the
appointment of counsel for Plaintiff, and directed the newlyappointed counsel to file a Second Amended Complaint.
7
(ECF Nos.
69, at 11-16; 70).4
Plaintiff filed a Second Amended Complaint
on July 15, 2013, asserting claims under (1) 42 U.S.C. § 1983
for violations of his First, Eighth, and Fourteenth Amendment
rights; (2) the Maryland Constitution; and (3) state laws for
battery,
negligence,
distress.
(ECF
and
No.
intentional
80).
In
the
infliction
Second
of
Amended
emotional
Complaint,
Plaintiff alleged the October 1 and 16, 2009 assaults for the
first time.
close
of
summary
(Id. ¶¶ 11-17).
discovery,
judgment.
On October 23, 2015, after the
Defendants
(ECF
No.
filed
141).
opposition, and Defendant replied.
4
the
pending
Plaintiff
motion
responded
for
in
(ECF Nos. 163; 171).
The parties dispute which “constitutional claims” from
Plaintiff’s Second Amended Complaint survived the prior motion
to dismiss. (ECF Nos. 141-1, at 39-41; 163, at 55-56; 171, at
19). By “constitutional claims,” the parties seem to be arguing
over specific constitutional violations that would form the
bases of Plaintiff’s claims under 42 U.S.C. § 1983.
Plaintiff
concedes the court foreclosed any claims based on conditions of
confinement, verbal abuse, and denial of medical care (see ECF
No. 69, at 19), but argues that his claims based on retaliation
in violation his First Amendment rights are new. (ECF No. 163,
at 56).
Plaintiff’s First Amended Complaint suggested that
Defendants retaliated against him by denying him showers after
the February 2011 assault.
(ECF No. 6-1 ¶ 28).
Emphasizing
that the alleged conduct did not “demonstrate any adversity” nor
show that the conduct was “causally connected to the exercise of
Plaintiff’s protected rights,” the court dismissed retaliation
as a basis for a claim.
(ECF No. 69, 16).
Plaintiff now
contends that the 2011 assault was a result of his repeated
submission of numerous ARPs against the RCI correctional
officers prior to February 5, 2011.
(Id. ¶¶ 20-24).
This
retaliation argument, based on a different harm at a different
time, was not part of the previous dismissal.
8
C.
Non-dispositive Motions
1.
Motion for Leave to File a Surreply
After Defendants filed their reply, Plaintiff moved to file
a
surreply.
(ECF
No.
172).
Under
Local
Rule
105.2(a),
“[u]nless otherwise ordered by the Court, surreply memoranda are
not
permitted
discretion
to
to
disfavored.
be
filed.”
allow
Chubb
&
a
Although
surreply,
Son
v.
C.C.
F.Supp.2d 666, 679 (D.Md. 2013).
“when
the
presented
party’s
moving
to
reply.”
would
court
for
Khoury
the
party
v.
district
surreplies
Complete
court
are
has
generally
Servs.,
LLC,
919
A surreply may be permitted
be
the
unable
first
Meserve,
(D.Md. 2003) (citation omitted).
a
to
time
268
contest
in
the
F.Supp.2d
matters
opposing
600,
605
By contrast, “[a] motion for
leave to file a surreply may be denied when the matter addressed
in the reply is not new.”
Marshall v. Capital View Mut. Homes,
No. RWT–12–3109, 2013 WL 3353752, at *3 (D.Md. July 2, 2013)
(citation omitted).
Plaintiff argues that a surreply is necessary to address
Defendants’ arguments with regard to judicial tolling, equitable
tolling,
and
the
exclusion
of
an
affidavit
by
a
previously
unidentified prisoner, Shabazz Watkins, who witnessed a part the
2011 assault.
(ECF No. 171, at 2).
Plaintiff’s first two
arguments fail because both of these legal issues were raised by
9
Plaintiff himself in his opposition brief and were not new in
Defendants’ reply.
(ECF No. 163, at 40-42).
Plaintiff’s third reason is sufficient.
Defendants argued
in their reply brief that Mr. Watkins’s affidavit should not be
considered because Plaintiff did not name him as a witness in
his interrogatories until he updated in February 2016, months
after
the
close
of
discovery.
(ECF
No.
171,
at
17-18).
Defendants do not contest that they made this argument for the
first time in their reply.
Instead, they correctly point out
that they could not have made this argument in their opening
brief because they did not know or expect that Plaintiff would
include a statement from a new witness that he obtained months
after the close of discovery.
(ECF No. 173, at 2).
Because
Plaintiff was unable to respond to this argument, Plaintiff’s
motion
to
file
a
surreply
is
granted
with
respect
to
these
arguments.
2.
Motion to Supplement
On July 11, 2016, Plaintiff moved to file a supplemental
brief.
(ECF
necessary
No.
because
180).
of
(1)
He
argues
new
that
deposition
his
supplement
evidence
taken
is
from
Defendant David Scott Miller after briefing was complete and (2)
the June 6, 2016, decision by the Supreme Court of the United
States
in
Ross
v.
Blake,
136
10
S.Ct.
1850
(2016).
Neither
warrants
asserts
supplemental
that
demonstrates
the
deposition
that
(Id.).5
briefing.
there
testimony
is
a
First,
from
dispute
Plaintiff
Defendant
of
fact
Miller
“concerning
Defendants’ harassment of [Plaintiff], which was the basis for
[Plaintiff’s] administrative complaints.”
5).
at
(ECF No. 180-1, at
Plaintiff emphasizes that motive is material (ECF No. 182,
3),
but
the
relevant
Defendants’
motive
for
motive
filing
motive
ARPs.
for
provides
a
framework
the
for
putative
Second,
our
on
summary
assault,
as
analysis
judgment
not
discussed
of
is
Plaintiff’s
below,
whether
Ross
Plaintiff
exhausted his administrative remedies, but, as Defendants point
out in their opposition to the supplemental brief, Plaintiff
made all of the relevant substantive arguments in his opposition
brief.
II.
(ECF No. 181, at 4).
The motion is therefore denied.
Motion for Summary Judgment
A.
Standard of Review
A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party
is
entitled
to
judgment
as
a
matter
of
law.
See
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);
Anderson
v.
Liberty
Lobby,
5
Inc.,
477
U.S.
242,
250
Defendant Miller does not appear to be a party to this
motion to dismiss (ECF No. 141, at 1), but Plaintiff argues that
his testimony bears on the motion with regard to the other
Defendants.
11
(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
A
dispute about a material fact is genuine “if the evidence is
such
that
a
nonmoving
reasonable
party.”
jury
could
a
Lobby,
Liberty
return
verdict
477
U.S.
at
for
the
249.
In
undertaking this inquiry, a court must view the facts and the
reasonable
inferences
drawn
therefrom
“in
the
light
most
favorable to the party opposing the motion,” Matsushita Elec.
Indus.
Co.
(quoting
v.
Zenith
United
Radio
Corp.,
v.
Diebold,
States
475
U.S.
Inc.,
574,
369
587
U.S.
(1986)
654,
655
(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005), but a “party cannot create a genuine dispute
of
material
fact
inferences.”
through
mere
speculation
or
compilation
of
Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md.
2001) (citation omitted).
To prevail on a motion for summary judgment, the moving
party generally bears the burden of showing that there is no
genuine dispute as to any material fact.
No genuine dispute of
material fact exists, however, if the nonmoving party fails to
make a sufficient showing on an essential element of his case as
to which he or she would have the burden of proof.
U.S.
at
322–23.
nonmoving
party
Therefore,
has
the
on
those
burden
issues
of
proof,
Celotex, 477
on
it
which
is
the
his
responsibility to confront the summary judgment motion with an
“affidavit
or
other
evidentiary
12
showing”
demonstrating
that
there is a genuine issue for trial.
See Ross v. Early, 899
F.Supp.2d 415, 420 (D.Md. 2012), aff'd, 746 F.3d 546 (4th Cir.
2014).
“Ordinarily, a defense based on the statute of limitations
must be raised by the defendant through an affirmative defense,
see
Fed.R.Civ.P.
affirmative
Praxair,
8(c),
defense
Inc.,
494
and
rests
F.3d
the
on
burden
the
458,
464
of
establishing
defendant.”
(4th
Cir.
Goodman
2007);
Gough
the
v.
v.
Calvert Cnty. Detention Ctr., No. DKC-15-3095, 2016 WL 3181797
at *3 (D.Md. June 8, 2016).
Failure to exhaust administrative
remedies is also an affirmative defense, Jones v. Bock, 549 U.S.
199, 216 (2007), and “[defendants] bear the burden of proving
that
[Plaintiff]
had
remedies
failed to take advantage.”
available
to
him
of
which
he
Blake v. Ross, 787 F.3d 693, 697 (4th
Cir. 2015) vacated on other grounds Ross v. Blake, 136 S.Ct.
1856 (2016).
summary
Thus, Plaintiff’s claims will be dismissed on
judgment
only
“if
Defendants
raise
the
affirmative
defense and also prove that Plaintiff has failed to exhaust
available remedies.”
McMillian v. Caple, No. CV DKC-15-1882,
2016 WL 4269054, at *5 (D. Md. Aug. 15, 2016).
B.
Statute of Limitations
Defendants first argue that Plaintiff’s 2009 assault claims
are time-barred.
Plaintiff first included these claims in his
Second Amended Complaint in July 2013.
13
The applicable statute
of
limitations
limitations
for
period
a
for
§
1983
claim
personal
comes
injuries
from
in
a
the
state’s
tort
action,
Wilson v. Garcia, 471 U.S. 261, 266-69, 276 (1985); Nasim v.
Warden, Md. House of Correction, 64 F.3d 951, 955 (4th
Cir.
1995), which, in Maryland, is the general three-year statute of
limitations, Md. Code Ann., Cts. & Jud. Proc. § 5-101; Nasim, 64
F.3d at 955.
Plaintiff admits that he first pled these assaults after
the end of this limitations period, but argues that the claims
are not barred because: (1) they relate back to his original
complaint;
(2)
the
statute
of
limitations
should
have
been
tolled while he pursued his administrative remedies; and (3) the
court
should
apply
equitable
tolling
to
either
the
period
between when Plaintiff moved for appointed counsel and when his
current counsel was appointed (November 15, 2011, to May 14,
2013); or between when the court ordered appointment of counsel
and when appointed counsel was assigned and able to submit the
Second Amended Complaint (February 26, 2013, to July 15, 2013).
(ECF No. 163, at 36).
1.
Relation Back
The
Federal
Rules
of
Civil
Procedure
provide
that
an
amendment can relate back to the date of the original pleading
if the amendment “asserts a claim . . . that arose out of the
conduct, transaction, or occurrence set out - or attempted to be
14
set out - in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B).
Courts will not allow a plaintiff to assert “a new ground for
relief supported by facts that differ in both time and type from
those the original pleading set forth.”
U.S. 644, 650 (2005).
Mayle v. Felix, 545
Instead, the new claim must share a
“factual nexus” with the claims in the original complaint, and
the original complaint must have put the defendants on notice of
Grattan v. Burnett, 710 F.2d 160, 163 (4th Cir.
the claim.
1983).
Plaintiff suggests that the 2009 assaults are part of the
same
“pattern
of
misconduct
involving
most
of
the
defendants” and therefore meet Rule 15(c)’s standard.
163, at 37).
This argument is not persuasive.
same
(ECF No.
Courts have
rejected relation back for similar patterns of behavior in the
context
of
F.Supp.3d
other
748,
torts.
757-58
See
(D.Md.
Doe
2015)
v.
Salisbury
(citing
Univ.,
English
123
Boiler
&
Tube, Inc. v. W.C. Rouse & Son, Inc., 172 F.3d 862, No. 97-2397,
1999
WL
89125,
at
*1-3
(4th
Cir.
1999)
(unpublished
table
decision) (holding that new defamatory statements were part of
the
same
“campaign
to
disparage
[the
plaintiff]”
against
a
business competitor but could not be added by relation back
because
each
act
of
defamation
is
a
separate
tort)).
As
Defendants point out, the new claims that shared a factual nexus
in Grattan were part of the same “ultimate wrong” that led the
15
plaintiff to bring his suit.
710 F.2d at 163; see also Farb v.
Fed. Kemper Life Assur. Co., 213 F.R.D. 264, 267-68 (D.Md. 2003)
(holding that an amended insurance claim would relate back where
a plaintiff alleged the same entitlement to the proceeds of a
single
insurance
policy
under
a
different
theory).
Here,
Plaintiff has presented two new claims with all new facts that
are equivalent to the 2011 assault.
These alleged assaults
occurred more than sixteen months prior to the 2011 assault and
by different sets of correctional officers.
20; 171, at 4).
(ECF Nos. 141-1, at
Relation back in a case like this would “leave
the statute of limitations open-ended for additional acts . . .
even though these acts involved different parties on different
dates.”
2.
English Boiler & Tube, 1999 WL 89125, at *3.
Tolling
Plaintiff’s
point
out,
even
tolling
if
the
arguments
court
also
accepted
fail.
As
Defendants
Plaintiff’s
judicial
tolling argument, he would not be within the limitations period
unless the court equitably tolled the period for an additional
two months.
To receive equitable tolling, a plaintiff bears the
burden of showing “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood
in his way and prevented timely filing.”
649.
Holland, 560 U.S. at
Plaintiff cites to a single case, White v. Cooper, 55
F.Supp.2d 848 (N.D.Ill. 1999), to argue that the statute of
16
limitations should be equitably tolled to cover either the full
period
between
when
he
requested
appointment
of
counsel
on
November 15, 2011, and when his current counsel was appointed on
May 14, 2013, or, alternatively, the period between when counsel
appointment was ordered on February 26, 2013, and when counsel
was required to file the Second Amended Complaint on July 15 of
that year.
(ECF No. 163, at 41-42).
In White, the court opined
that prior to the appointment of counsel, the inmate plaintiff,
who did not know the identity of his assailants, “was at a
particular disadvantage” in trying to uncover the identities of
the unknown tortfeasors without the help of pretrial discovery.
55 F.Supp.2d at 856.
Because he had made reasonable efforts to
discover these identities on his own, the court found that the
lack
of
counsel
qualified
as
extraordinary
circumstances
allowed him to amend his complaint to add new defendants.
at 856-57.
Id.
Plaintiff’s Second Amended Complaint seeks to add
new claims, not new defendants.
Plaintiff
and
cannot
tie
his
lack
Unlike the plaintiff in White,
of
assert these 2009 assault claims.
counsel
to
his
failure
to
Put another way, Plaintiff
knew he had been assaulted in 2009, but he offers no explanation
as to why his lack of counsel prevented him from including these
assaults
when
he
filed
his
original
complaint.
Indeed,
Plaintiff admitted that he was aware that he could sue based on
the 2009 assaults and simply let Defendants “slide” before he
17
“got tired” of the problems in 2011.
Plaintiff
has
thus
failed
to
show
(ECF No. 141-2, at 51).
that
his
lack
of
counsel
constitutes an extraordinary circumstance that stood in the way
of his timely filing of these claims, and the limitations period
will not be tolled.6
Plaintiff’s
October
16,
assault
2009
claims
incidents
based
are
on
the
therefore
October
1
and
time-barred.
The
motion for summary judgment will be granted for these claims.
C.
Administrative Exhaustion
Defendants next claim that Plaintiff failed to exhaust his
administrative remedies as a defense to Plaintiff’s claims based
on
the
2011
(“PLRA”)
assault.
provides,
in
The
Prisoner
pertinent
Litigation
part,
“No
action
Reform
Act
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,
until
such
administrative remedies as are available are exhausted.”
42
U.S.C. § 1997e.
or
other
correctional
facility
Exhaustion under the PLRA is mandatory, and
courts may not excuse a failure to exhaust “irrespective of any
‘special circumstances.’”
Ross, 136 S.Ct. at 1856.
Exhaustion
is a precondition to filing suit, and exhausting administrative
6
Equitable tolling also requires an examination of the
diligent pursuit of legal rights.
Holland, 560 U.S. at 649.
Plaintiff letting Defendants “slide” on the 2009 assaults
similarly shows a lack of diligence. (ECF No. 141-2, at 51).
18
remedies after a complaint is filed will not prevent a case from
being dismissed for failure to exhaust.
Kitchen v. Ickes, 116
F.Supp.3d 613, 624-25 (D.Md. 2015).
The only limitation on the PLRA’s exhaustion requirement is
that the remedy must be “available.”
42 U.S.C. § 1997e.
Being
“available” requires both that the remedial procedure exist in
law and that, in actual practice, it is “‘capable of use’ to
obtain ‘some relief for the action complained of.’”
Ross, 136
S.Ct.
731,
at
(2001)).
1859
(citing
Booth
v.
Churner,
532
U.S.
738
The Supreme Court has articulated three circumstances
in which an administrative remedy is not “available” despite
being officially on the books:
(1) when the process operates as
a “simple dead end” with no actual possibility of relief to
prisoners; (2) when the process is so opaque or confusing that
it is “essentially ‘unknowable’ - so that no ordinary prisoner
can
make
officials
sense
thwart
of
what
it
inmates
demands;”
from
and
using
the
(3)
when
process
machination, misrepresentation, or intimidation.
prison
through
Id. at 1859-
60.
In
Maryland,
prisoners
can
bring
a
complaint
against
correctional officer through three administrative paths.
primary method is the ARP.
a
The
Department of Correction (“DOC”)
directives provide that prisoners may use the ARP process for
most types of grievances, including those relating to the use of
19
force.
(ECF No. 164-1, at 144).
A prisoner begins the ARP
process by filing a request for an administrative remedy with
the Warden of the prison in which he is incarcerated.
If his
request is denied, the prisoner has ten calendar days to file an
appeal with the Commissioner of Correction.
If this appeal is
denied, the prisoner then has thirty days in which to file an
appeal to the Executive Director of the IGO.
See Md. Code Ann.,
Corr. Serv. §§ 10–206, 10–210; Md. Code Regs. 12.07.01.03.
second
path
under
Maryland
law
allows
a
prisoner
grievance directly with the IGO in some cases.
Ann.,
Corr.
Servs.
§
10–206(a).
The
to
The
file
a
See Md. Code
third
administrative
process that a prisoner may pursue is an investigation of the
incident by the IIU.
IIU
oversees
See Md. Code Regs. 12.11.01.09(E).
disciplinary
investigations
into
allegations
employee misconduct, including the use of excessive force.
Code Regs. 12.11.01.05(A)(3).
complaint
with
the
IIU,
the
The
of
Md.
Although a prisoner may file a
IIU
does
not
have
provide any relief to the prisoner himself.
authority
to
Md. Code Regs.
12.11.01.09(E); 12.11.01.04.
The relationship among these various paths to relief is
complicated.
relief
For example, a prisoner may file a request for
directly
with
the
IGO,
but
the
IGO
has
issued
a
regulation requiring inmates to use the standard ARP process if
that
process
is
available
to
20
a
grievant
in
a
particular
Md. Code Regs. 12.07.01.02D.7
situation or occurrence.
The
availability of one process thus closes the door to another.
Similarly, according to DOC directives, a warden receiving an
ARP complaint must dismiss the complaint when he “determine[s]
that
the
basis
of
the
complaint
is
the
same
investigation under the authority of the [IIU].”
1,
at
9
(citing
DCD
185-003)).
The
basis
of
an
(ECF No. 164-
complexity
of
the
interactions among these three processes led the Supreme Court
to question whether prisoners in Maryland truly had “available”
remedies under the PLRA in a recent decision.
Ross, 136 S.Ct.
at 1860-62.
Here, Defendants contend that Plaintiff failed to exhaust
his administrative remedies in two ways.
First, by refusing to
participate in his November 9 hearing in front of the IGO, he
failed to “us[e] all steps that the agency holds out, and do[]
so properly (so that the agency addresses the issues on the
merits).”
(ECF No. 141-1, at 20 (citing Woodford v. Ngo, 548
U.S.
90-91
81,
(2006))).
Second,
Defendants
assert
that
Plaintiff “jumped the gun” by filing his federal suit the day
after the hearing on November 10 because the ALJ had not yet
issued her final determination.
(ECF No. 141-1, at 21).
Both
of Defendants’ arguments stemming from the November 9 hearing
7
The IGO may require prisoners to exhaust other procedures
where the procedures are (1) applicable to the grievance and (2)
“reasonable and fair.” Md. Code Ann., Corr. Servs. § 10–206(b).
21
rest
on
the
notion
that
Plaintiff
still
remedies available to him at that hearing.
had
administrative
Plaintiff counters,
inter alia, that opening the IIU investigation foreclosed the
ARP process, and, therefore, he had no further remedies that
were actually available on November 9.
(ECF No. 163, at 38-40).
Defendants try to undermine Plaintiff’s IIU theory in two
ways.
First, they cite to Blake v. Maynard, No. 09-02367-AW,
2012 WL 1664107 (D.Md. May 10, 2012) rev’d sub nom. Blake v.
Ross, 787 F.3d 693 (4th Cir. 2015), vacated, 136 S.Ct. 1850, in
support of the proposition that a Plaintiff whose complaint is
subject to an IIU investigation loses his ability to file an ARP
complaint, but must still file a grievance directly with the
IGO.
(ECF No. 141-1, at 27-28).
The court in Blake v. Maynard
said as much:
In
short,
notwithstanding
their
interrelation, the IGO grievance procedure
is at once legally and practically distinct
from the ARP process. . . . True, the ARP
process does not apply to complaints with
‘the same basis as an investigation under
the authority of the . . . IIU.’ In other
words, if the IIU is investigating an
incident with the same factual underpinning
as a prisoner’s complaint, the prisoner may
not submit the complaint to the ARP process,
including appeals to the Commissioner. . . .
The DOC’s directives do not, however, spare
prisoners from satisfying the IGO grievance
process.
.
.
.
Nor
could
the
DOC’s
directives excuse prisoners from exhausting
the IGO grievance process in this case’s
circumstances.
As outlined above, Maryland
law vests primary responsibility of fielding
22
inmate grievances with the IGO. The IGO, in
turn, has issued a regulation requiring
grievants to properly exhaust the ARP only
if the ARP applies to a particular situation
or occurrence.
Here, in view of DCD 185–
003.VI.N.4, the ARP does not apply to
Blake’s complaint.
As a result, the IGO
grievance
process
applies
to
Blake’s
complaint.
2012 WL 1664107 at *5-6 (internal citations omitted).
Both the
United States Court of Appeals for the Fourth Circuit and the
Supreme Court, however, have called this holding into question
on appeal.
Ross, 136 S.Ct. at 1860 (“The facts of this case
raise questions about whether, given these principles, Blake had
an ‘available’ administrative remedy to exhaust.”); Blake, 787
F.3d at 698 (holding that the plaintiff was not required to
exhaust his remedies, in part because he was “justified” in
believing that he had exhausted administrative remedies “because
the prison’s remedial system was confusing”).
contradicted
district
the
that
decisions
an
IIU
exhaustion requirement.
of
That holding also
several
other
investigation
fully
judges
in
this
satisfies
the
See Kitchen, 116 F.Supp.3d at 625 (“The
court is aware that once a claim of excessive force is referred
to
IIU[,]
no
further
administrative
remedy
proceedings
may
occur.”); see also Shiheed v. Shaffer, No. GLR-14-1351, 2015 WL
4984505, at *3 (D.Md. Aug. 18, 2015); Manzur v. Daney, No. PWG14-2268, 2015 WL 1962182, at *3 (D.Md. Apr. 29, 2015); Chew v.
Green, No. DKC-13-2115, 2014 WL 4384259, at *13 (D.Md. Sept. 2,
23
2014); Henderson v. Simpkins, No. CCB-13-1421, 2014 WL 3698878,
at *6 (D.Md. July 24, 2014); Bogues v. McAlpine, No. CCB-11-463,
2011
WL
5974634,
at
*4
(D.Md.
Nov.
28,
2011);
Williams
v.
Shearin, No. L-10-1479, 2010 WL 5137820, at *2 n.2 (D.Md. Dec.
10, 2010); Thomas v. Bell, No. AW-08-2156, 2010 WL 2779308, at
*4 (D.Md. July 7, 2010).
Because there may be some number of
cases in which the IGO would hear grievances but the ARP process
would not apply, see Ross, 136 S.Ct. at 1860, it is possible
that an IIU investigation, which prevents further proceedings
“within
the
ARP
process,”
remedies in all cases.
would
not
exhaust
a
prisoner’s
Because Plaintiff’s complaint would have
been subject to the ARP process absent the IIU investigation
here, however, this is not such a case.
Second, Defendants assert that the IIU does not fully cut
off the ARP process.
(ECF No. 141-1, at 26).
Rather, they
suggest, because the procedural dismissal of an ARP complaint
based on the IIU investigation that is required under DCD 185003 can be appealed by the inmate, the procedural dismissal does
not meet the exhaustion requirement until the completion of the
appeals
process.
This
argument
runs
counter
to
all
of
the
decisions cited above, including Blake v. Maynard, and common
sense.
Where the relevant administrative rules provide clear
grounds for a procedural dismissal of the complaint, it seems
disingenuous to suggest that a prisoner ought to appeal such a
24
dismissal even if he knows it was rightly decided and has no
legal
or
factual
arguments
inappropriately dismissed.
confusing
that
.
.
.
that
the
complaint
was
At best, this process would be “so
no
reasonable
prisoner
can
use
[it].”
Ross, 136 S.Ct. at 1859.
At worst, this is the type of “game-
playing”
the
that
administrative
“thwarts
process.”
effective
Id.
at
invocation
1862.
In
of
either
the
case,
Plaintiff has established that such an administrative remedy was
not “available” to him.
Defendants make a last ditch effort to argue that because
Plaintiff
attempted
to
pursue
the
IGO
and
ARP
processes,
received the November 9 hearing, and refused to participate in
it,
he
has
failed
to
exhaust.
(ECF
No.
141-1,
at
24-26).
Plaintiff, they say, went forward with the IGO and ARP processes
because
he
knew
that
he
had
not
exhausted
his
remedies.
Defendants present no cases suggesting that an inmate who has
legally exhausted his administrative remedies has the ability to
undo his exhaustion by way of other attempts at relief.
Even if
Plaintiff believed that he had to go through the ARP or IGO
grievance processes, his subjective belief about whether he had
or had not exhausted his remedies does not bear on whether he
has
successfully
done
so.
See
Ross,
136
S.Ct.
at
1858
(emphasizing that the PLRA’s strict standards take no account of
whether “a prisoner makes a reasonable mistake about the meaning
25
of a prison’s grievance procedures”).
If anything, the fact
that Plaintiff continued to pursue the ARP process demonstrates
how confusing Maryland’s procedures are.
Because the existence
of an IIU investigation shuts down the ARP process and thus
exhausts
administrative
remedies
for
complaints
that
would
typically fall within the ARP jurisdiction, Plaintiff met his
burden to exhaust upon the initiation of that investigation.8
Therefore, Defendants’ exhaustion defense fails.
D.
Merits
1.
Supervisory Liability for Defendants Hershberger and
Winters
Defendants next seek summary judgment on Plaintiff’s claims
against
Defendants
Defendants”).
under
a
Hershberger
and
Winters
(“Supervising
Plaintiff argues that these Defendants are liable
theory
of
supervisory
liability.
To
establish
supervisory liability in a § 1983 action, a plaintiff must show
that: (1) the supervisor had actual or constructive knowledge
that his subordinates were engaged in conduct that posed “a
pervasive
and
unreasonable
risk”
8
of
constitutional
injury
to
Although the parties do not argue as much, the court
recognizes that there might be policy concerns that prisoners
could bypass the normal administrative processes by filing for
an IIU complaint and immediately filing in federal court.
To
the extent that this is possible, it is dependent on the current
directive that dismisses other administrative actions when
subject matter is the same. If, for example, the administrative
proceedings were stayed pending an IIU investigation, no such
problem would exist.
26
citizens like the plaintiff; (2) the supervisor’s response to
that knowledge was so inadequate as to demonstrate “deliberate
indifference to or tacit authorization of the alleged offensive
practices;”
between
and
the
constitutional
(3)
there
was
supervisor’s
injury
an
“affirmative
inaction
suffered
by
and
the
causal
the
link”
particular
plaintiff.
Shaw
v.
Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal quotation
marks and citations omitted).
The first element has three sub-
parts: (a) the supervisor’s knowledge of (b) conduct engaged in
by a subordinate (c) where the conduct poses “a pervasive and
unreasonable risk of constitutional injury to the plaintiff.”
Id.
Establishing a pervasive and unreasonable risk of harm
requires evidence that the conduct is widespread or has occurred
on several different occasions.
Plaintiff
into
evidence
asserts
that
that
filed
he
Id.
the
“plethora
between
of
June
ARPs”
2009
and
submitted
May
2011
creates a dispute of fact over whether Supervising Defendants
had knowledge of the risk that their employees posed to him.
As
Defendants point out, these ARPs were almost all related to
relatively minor issues – missed showers and haircuts, skipped
lunches,
allegedly
violation,
refusal
improper
to
sign
write-ups
other
of
Plaintiff
ARPs,
and
for
skipped
rule
or
rescheduled back therapy sessions – that would not establish a
risk of constitutional injury.
These ARPs, viewed cumulatively,
27
might
show
pervasive
other
Defendants
disagreement
but
would
not
between
give
Plaintiff
Supervising
and
the
Defendants
actual or constructive notice that the complained of employees
might
be
assault.
creating
a
pervasive
and
unreasonable
risk
of
an
Plaintiff’s prior assault ARP might have provided such
notice, but the Fourth Circuit has made clear that a plaintiff
“assumes
a
heavy
burden
of
proof
in
establishing
deliberate
indifference” that cannot be satisfied “by pointing to a single
incident
or
isolated
produced
any
incidents.”
evidence
Id.
supporting
his
Plaintiff
not
that
assertion
has
the
correctional officers in Housing Unit 5 were habitually abusive
in a way that would provide actual or constructive knowledge to
Supervising
therefore
Defendants.
granted
with
The
motion
respect
to
for
summary
supervisory
judgment
is
liability
of
Defendants Hershberger and Winters.
2.
Plaintiff’s 2011 Claims Against Defendants Stotler,
Hess, Gillespie, and Younger.
Finally, Defendants move for summary judgment in favor of
all
Defendants
who
purportedly
committed
the
2011
assault.
Although Plaintiff and Defendants certainly dispute the material
facts in this case, Defendants argue that no reasonable jury
would return a verdict in Plaintiff’s favor.
35).
(ECF No. 141-1, at
On a motion for summary judgment, “[i]t is the affirmative
obligation of the trial judge to prevent factually unsupported
28
claims and defenses from proceeding to trial.”
Bouchat v. Balt.
Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003)
(citing
Celotex,
477
U.S>
at
323-24).
The
inquiry
is
“not
whether [the judge] thinks that the evidence unmistakably favors
one
side
or
the
other
but
whether
a
fair-minded
jury
could
return a verdict for the plaintiff on the evidence presented.”
Anderson, 477 U.S. at 252.
“When opposing parties tell two
different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it,” the court
need not put the case to a trier of fact.
U.S.
372,
380
(2007).
The
evidence
Scott v. Harris, 550
supporting
Plaintiff’s
version of events includes his own statements in the proceedings
he filed after the purported assault, a declaration from Mr.
Owens,
medical
a
declaration
experts,
and
from
Mr.
Watkins,
testimony
the
IIU
investigation
from
report,
his
which
includes references to his injuries and apparent corroboration
of his story by inmate Brian McKenzie.
(See ECF Nos. 164-2, at
131-140, 229; 163-3; 163-4; 141-2, at 94, 106).
Defendants contend that the record contradicts Plaintiff’s
version of the February 5 events in a number of ways.
they
suggest
that
Plaintiff’s
knee
injuries
were
preexisting
injuries that were a result of kneeling while praying.
although
Plaintiff
avers
that
five
different
First,
Second,
correctional
officers punched, kicked, and stomped him, the IIU investigator
29
noted relatively minor injuries.
(ECF No. 141-2, at 88, 93).
Third, they argue that Mr. Owens’ affidavit (and presumably the
statement from Mr. McKenzie) should be disbelieved because the
IIU investigator found them not credible.
Fourth, they contend
that if a beating occurred, other inmates would have reported
it.
Finally,
Defendants
suggest
that
the
court
should
not
consider Mr. Watkins’s affidavit because Plaintiff did not take
the affidavit or submit it to the record until months after the
close of discovery.
The
parties
Plaintiff’s
knee
present
significant
injuries.
The
nurse
evidence
who
saw
regarding
Plaintiff
on
February 7 said that his knee injury appeared to be more than 48
hours
old.
Plaintiff
(ECF
had
No.
141-2,
previously
2003, and 2005.
at
94).
complained
of
They
knee
point
issues
(ECF No. 141-2, at 108-110).
out
in
that
2002,
One of the
doctors reviewing Plaintiff’s knee complaints and the statements
of the other medical experts considered the knee injury to be a
result of frequent kneeling to pray and not the result of a
trauma.
(Id. at 110, 188).
Plaintiff has produced counter
evidence from his own physician who lamented the lack of good
treatment
records,
but
concluded
that
Plaintiff
suffered
an
“internal derangement to his left knee on or about 02/05/2011 as
a result of an assault.”
examiner
also
concluded
(Id. at 106).
that
30
An independent medical
Plaintiff
had
an
internal
derangement in the knee.
(ECF No. 164-2, at 229).
Moreover, in
arguing that Plaintiff’s injuries were not consistent with a
beating at the hands of five correctional officers, Defendants
cite to medical expert’s statement that Plaintiff’s knee injury
was
only
3cm,
but
that
3cm
evaluation
sixteen days after the alleged injury.
came
on
February
21,
(ECF No. 141-2, at 185).
On February 7, the attending nurse referred to the knee injury
as a “large scabbed area.”
With
injuries,
regard
to
Defendants
investigator’s
(Id. at 94).
the
seriousness
place
too
determinations.
much
As
of
Plaintiff’s
weight
Plaintiff
on
points
other
the
IIU
out,
the
investigator has no medical expertise upon which to evaluate the
relationship between Plaintiff’s injuries and his version of the
events.
(ECF No. 163, at 54).
Although the IIU investigator
suggested his injuries should have been more substantial, it had
been two days since the alleged assault.
At least some evidence
supports Plaintiff’s claim.
The same nurse who said Plaintiff’s
knee
than
injury
appeared
more
48
hours
old
said
that
the
bruises on his arm, cut inside his lip, and scratches on his
hands appeared to be 48 hours old.
(ECF No. 141-2, at 94).
Defendants similarly rely on the IIU investigation to rebut
the affidavits of other witnesses.
The IIU investigator said
that Plaintiff’s story was not credible despite being supported
by both Mr. Owens and Mr. McKenzie.
31
(Id. at 88-89).
Such
credibility
determinations
are
reserved
for
fact
finders
in
judicial proceedings, and it would be especially strange here to
reject the content of Mr. Owens written affidavit simply because
the IIU investigator found that he lacked credibility in an oral
interview
years
earlier,
the
details
of
which
are
sparsely
recorded.
Defendants’ argument that the record would show ARPs
by
inmates
other
unpersuasive.
if
there
had
been
an
assault
is
also
They have produced no evidence suggesting that
assaults typically result in ARPs by third-party inmates, and
Plaintiff
has
produced
statements
that,
if
deemed
credible,
suggest that Defendants actively attempted to dissuade prisoners
from filing ARPs.
Finally, Defendants argue that the Watkins Affidavit should
not be considered because Plaintiff did not identify Mr. Watkins
as a witness until his Response in Opposition to this motion in
February 2016, seven months after the close of discovery.
No. 171, at 17).
(ECF
Under Fed.R.Civ.P. 26(e)(1)(A), parties have a
duty to update responses to interrogatories in a timely manner.
Defendants point out that Mr. Watkins’s affidavit is signed and
dated December 31, 2015, but that Plaintiff did not supplement
his interrogatory to notify them about Mr. Watkins until two
months
later.
Plaintiff
(ECF
argues
interrogatory
that
No.
he
regarding
171,
at
17-18).
previously
witnesses
32
In
responded
by
noting
his
to
surreply,
Defendants’
that
“other,
unidentified inmates on level 2 of C-Tier may have witnessed all
or part of the incident.”
emphasized
that
this
(ECF No. 172-1, at 4, 10).
information
was
otherwise
He also
available
to
Defendants, as he was able to find Mr. Watkins as a result of
information
that
they
produced
to
him
on
March
20,
2015,
identifying the other inmates on level 2 of C-Tier on the date
of the purported assault.
Because
Defendants
were
(ECF Nos. 173, at 2; 175, at 2).
aware
that
Mr.
Watkins
might
have
witnessed the incident, the court will not exclude Mr. Watkins’s
statement.
Defendants have not demonstrated that Plaintiff’s evidence
is so blatantly contradicted by the record that no reasonable
jury could return a verdict in Plaintiff’s favor. Accordingly,
the motion for summary judgment fails.
III. Conclusion
For the foregoing reasons, Defendants’ motion for summary
judgment will be granted in part and denied in part; Plaintiff’s
motion for leave to file a surreply will be granted in part and
denied in part; and Plaintiff’s motion to file a supplemental
brief will be denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
33
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