Brightwell v. Hershberger et al
Filing
196
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 10/5/2016. (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
to
certify
an
interlocutory
appeal
by
Defendants
Sgt.
James
Stotler, C.O. II Roy Hess, C.O. II Marvin Gillespie, and C.O. II
Chaz
Younger
proceedings
(“Defendants”);
pending
interlocutory appeal.
the
and
(2)
disposition
a
of
(ECF Nos. 188, 189).
motion
the
to
motion
stay
for
The issues have
been fully briefed, and the court now rules, no hearing being
deemed necessary.
Local Rule 105.6.
For the following reasons,
the motions will be denied.
I.
Background
A more complete recitation of the factual background can be
found
in
judgment.
the
court’s
prior
memorandum
(See ECF No. 183, at 2-8).
opinion
on
summary
In that opinion, the
court ruled, inter alia, that Defendants were not entitled to
summary judgment based on the affirmative defense of Plaintiff’s
failure to exhaust administrative remedies.
(Id. at 18-26).
Defendants
now
move
to
stay
proceedings
interlocutory appeal of that decision.
and
certify
their
(ECF Nos. 188, 189).
Plaintiff responded, and Defendants replied.
(ECF Nos. 191,
195).
II.
Standard of Review
Defendants
argue
that
the
court
should
certify
an
interlocutory appeal of the court’s denial of summary judgment,
based on Defendants’ affirmative defense of failure to exhaust
administrative
remedies.
With
the
consent
of
the
district
court, litigants may file an immediate appeal of a non-final
order, but the decision to certify an interlocutory appeal is
firmly in the district court’s discretion.
28 U.S.C. § 1292(b);
Butler v. DirectSAT USA, LLC, 307 F.R.D. 445, 451-52 (D.Md.
2015) (citing In re Cement Antitrust Litig., 673 F.2d 1020, 1026
(9th Cir. 1982)).
Moreover, the United States Court of Appeals
for the Fourth Circuit has cautioned that “[§] 1292(b) should be
used sparingly and . . . that its requirements must be strictly
Myles v. Laffitte, 881 F.2d 125, 127 (4th
construed.”
Cir.
1989); see also Beck v. Commc’ns Workers of Am., 468 F.Supp. 93,
95–96 (D.Md. 1979) (“Section 1292(b), a narrow exception to the
long-standing
rule
against
piecemeal
appeals,
is
limited
to
exceptional cases.”); Riley v. Dow Corning Corp., 876 F.Supp.
728,
731
(M.D.N.C.
1992)
(“The
2
legislative
history
of
[§
1292(b)] suggests that there is a strong federal policy against
piecemeal appeals.”).
Section 1292(b) states in pertinent part:
When a district judge, in making in a civil
action an order not otherwise appealable
under this section, shall be of the opinion
that such order involves a controlling
question of law as to which there is
substantial ground for difference of opinion
and that an immediate appeal from the order
may
materially
advance
the
ultimate
termination of the litigation, he shall so
state in writing in such order.
The Court
of Appeals which would have jurisdiction of
an appeal of such action may thereupon, in
its discretion, permit an appeal to be taken
from such order.
Thus, a defendant seeking an interlocutory appeal pursuant to
Section 1292(b) must show “(1) that a controlling question of
law exists (2) about which there is a substantial basis for
difference of opinion and (3) that an immediate appeal from the
order may materially advance the ultimate termination of the
litigation.”
F.Supp.
at
Butler, 307 F.R.D. at 452 (quoting
731).
Unless
all
of
the
statutory
Riley, 876
criteria
are
satisfied, however, “the district court may not and should not
certify its order . . . for an immediate appeal under section
1292(b).”
Butler, 307 F.R.D. at 452 (quoting Ahrenholz v. Bd.
of Trs. of the Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000));
see
also
Riley,
876
F.Supp.
at
3
731
(stating
that
§
1292(b)
“requires strict adherence to all statutory requirements before
certification will be allowed”).
III. Analysis
The
term
“controlling
question
of
law”
for
purposes
of
Section 1292(b) refers to a “narrow question of pure law whose
resolution would be completely dispositive of the litigation,
either as a legal or practical matter.”
Butler v. DirectSAT
USA, LLC, 307 F.R.D. at 452 (quoting Fannin v. CSX Transp.,
Inc.,
873
F.2d
1438,
1989
WL
(unpublished table decision)).
42583,
at
*5
(4th
Cir.
1989)
These narrow questions focus on
the bare “meaning of a statutory or constitutional provision,
regulation, or common law doctrine.”
Lynn v. Monarch Recovery
Mgmt., Inc., 953 F.Supp.2d 612, 623 (D.Md. 2013); see also In re
Text Messaging Antitrust Litig., 630 F.3d 622, 626 (7th Cir.
2010) (“[A] pure question of law [is] something the court of
appeals could decide quickly and cleanly without having to study
the record[.]”).
Pure questions of law are contrasted with
legal questions that are “heavily freighted with the necessity
for factual assessment,” which “have usually been thought not
the
kind
of
‘controlling’
question
proper
for
interlocutory
review under § 1292(b),” because they “inflict[ ] upon courts of
appeals
an
unaccustomed
and
ill-suited
role
as
factfinders.”
Fannin, 1989 WL 42583, at *5; 16 Charles Alan Wright, Arthur
Miller,
and
Edward
Cooper,
Federal
4
Practice
and
Procedure
§
3930, 500-01 (3d ed. 2012)) §3930, at 500-501.
Moreover, a
question of law is “controlling” only if it would be reversible
error on final appeal.
Maxtena, Inc. v. Marks, No. DKC 11-0945,
2014
*5
WL
4384551,
at
(D.Md.
Sept.
2,
2014);
Lynn,
953
which
the
F.Supp.2d at 623.
It
is
important
to
recognize
the
context
in
challenged ruling was made, i.e. a motion for summary judgment
by
the
party
that
has
the
burden
of
proof
on
the
issue.
Appropriately, the court viewed the facts and inferences in the
light most favorable to Plaintiff, the non-moving party, as the
standard of review requires.
Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also
EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir.
2005).
Viewed in that light, Plaintiff presented sufficient
evidence
that
he
had
exhausted
his
remedies
Department of Correction Directive 185-003.
at 182).
because
of
(See ECF No. 164-1,
Put another way, based on the record presented, a jury
could find that further remedies were not available to Plaintiff
– under the Supreme Court’s articulation of “availability” in
Ross v. Blake, 136 S.Ct. 1850, 1862 (2016) - after the IIU began
its investigation.
The court found that an IIU investigation
typically “shuts down” the ARP process because of Department of
Correction
Directive
185-003,
which
5
states
that
the
ARP
administrator “shall issue a final dismissal” of an ARP when he
determines that the underlying complaint is being investigated
by the IIU.
(ECF No. 164-1, at 182 (emphasis added)).
The
existence of DCD 185-003 was sufficient to create a material
dispute
of
fact
over
whether
Plaintiff
had
further
administrative remedies available to him.
The
practical
question of law.
availability
of
remedies
is
not
a
pure
As the Supreme Court noted when remanding Ross
v. Blake, determining whether administrative remedies are truly
available requires development of a record of facts and evidence
relating to whether the administrative process operated as a
dead end, whether it was knowable by an ordinary prisoner, and
whether
officials
administrative
thwarted
process
misrepresentation.
the
through
effective
threats,
invocation
of
the
game-playing,
or
Ross, 136 S.Ct. at 1862; see also Hendrick
v. Bishop, No. TDC-14-2544, 2016 WL 4442775, at *3 (D.Md. Aug.
19,
2016)
(denying
reconsideration
of
a
motion
for
summary
judgment to allow factual development so that the availability
determination can consider “what [the plaintiff] knew or should
have known about the ARP process when an IIU investigation is
involved, what information [Defendants] provided him, and how
they
responded,
both
officially
inquiries and requests”).
and
unofficially,
to
his
The effect of DCD 185-003 in this
case, where a hearing with an ALJ was offered through the ARP
6
process
in
spite
of
the
IIU
investigation,
application of a law to a set of facts.
requires
the
The court thus denied
Defendants motion for summary judgment, but it also did not
grant summary judgment for Plaintiff on this point.
remains for resolution at trial by the factfinder.
Ross,
No
13-7279,
2016
WL
4011152
(4th
Cir.
The matter
See Blake v.
July
27,
2016)
(unpublished opinion) (remanding to the district court as the
factfinder to determine whether or not a Maryland inmate had
remedies
available
investigation).
to
him
after
instigating
an
IIU
Interlocutory appeal is therefore inappropriate
because any question of law here is too “heavily freighted with
the necessity for factual assessment.”
To the degree that Defendants seek to challenge solely the
legal
reading
their
of
argument
Department
would
not
of
Correction
meet
Directive
Section
185-003,
1292(b)’s
other
requirements: (1) that immediate appeal would materially advance
the litigation and (2) that there is a “substantial basis for
difference of opinion” on the question.
A question of law would
materially advance the litigation if resolving it would serve to
avoid a trial or otherwise substantially shorten the litigation.
See Maxtena, 2014 WL 4384551, at *6 (citing 16 Charles Alan
Wright, et al., Federal Practice and Procedure § 3930, at 505–10
(3d ed. 2012)); see also Orson, Inc. v. Miramax Film Corp., 867
F.Supp.
319,
322
(E.D.Pa.
1994)
7
(“In
determining
whether
certification will materially advance the ultimate termination
of the litigation, a district court is to examine whether an
immediate appeal would (1) eliminate the need for trial, (2)
eliminate complex issues so as to simplify the trial, or (3)
eliminate issues to make discovery easier and less costly.”).
An issue presents a substantial ground for difference of opinion
if
courts,
as
opposed
to
parties,
disagree
on
the
issue.
McDaniel v. Mehfoud, 708 F.Supp. 754, 756 (E.D.Va. 1989), appeal
dismissed, 927 F.2d 596 (4th Cir. 1991) (unpublished opinion).
Because the summary judgment standard requires viewing the facts
and inferences in the light most favorable to Plaintiff and
Defendants
“bear
the
burden
of
proving
that
[Plaintiff]
had
remedies available to him of which he failed to take advantage,”
Blake v. Ross, 787 F.3d 693, 697 (4th Cir. 2015) vacated on other
grounds
Ross
interlocutory
v.
Blake,
appeal
136
would
S.Ct.
1856
(2016),
only
materially
Defendants’
advance
the
litigation here if the appellate court found that, in spite of
DCD 185-003, factfinders were legally prohibited from giving any
effect to Plaintiff’s IIU investigation.
No other court has
held as much, and such a decision seems wholly inconsistent with
the language of the Directive,1 the weight of decisions by this
1
Directive 185-003 states:
4. The Warden or institutional coordinator
shall issue a final dismissal of a request
8
court and other judges in this district,2 and the suggestions of
the Supreme Court in Ross v. Blake.3
Therefore, the motion to
certify an interlocutory appeal will be denied.
The motion to stay proceedings pending the disposition of
the application for appeal will be denied as moot.
IV.
Conclusion
For the foregoing reasons, (1) the motion for interlocutory
appeal filed by Defendants will be denied and (2) the motion to
for procedural reasons when it has been
determined that the basis of the complaint
is the same basis of an investigation under
the authority of the Internal Investigative
Unit (IIU). . . . (b) The response shall
read:
“Your
request
is
dismissed
for
procedural reasons final.
This issue is
being investigated by IIU . . . . Since this
case shall be investigated by IIU, no
further action shall be taken within the ARP
process.”
2
See Kitchen v. Ickes, 116 F.Supp.3d 613, 625 (D.Md. 2015)
(“The court is aware that once a claim of excessive force is
referred to IIU[,] no further administrative remedy proceedings
may occur.”); 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,
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).
3
See Ross, 136 S.Ct. at 1862 (suggesting that the lower
court could - or even “should” - find that DCD 185-003 made
further administrative remedies unavailable and that “[the
plaintiff’s] suit may proceed even though he did not file an
ARP”).
9
stay proceedings pending that motion filed by Defendants will be
denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
10
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