Loud v. Stouffer et al

Filing 14

MEMORANDUM. Signed by Judge Paul W. Grimm on 11/21/2013. (c/m 11/21/13 rs) (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

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DONNELL LOUD, #219814
Plaintiff,

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v.

CIVIL ACTION NO. PWG-13-1134

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MICHAEL STOUFFER - COMMISSIONER
BOBBY SHEARIN - WARDEN
DALE SMITH - LIEUTENANT
Defendants.

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*****

MEMORANDUM
I.

Background and Procedural History
Donnell Loud ("Loud") filed this action pursuant to 42 U.S.C.

9

1983, seeking declaratory

and injunctive relief, along with compensatory and punitive damages. He names as defendants the
Commissioner of the Maryland Division of Correction, the Warden of the North Branch Correctional
Institution ("NBCI"), and the Lieutenant in charge of the day-to-day operations of his housing unit,
which contains segregation inmates. Plaintiffs verified complaint states that, since the first week of
October 2012, the windows in his housing unit have been bolted shut, rendering it impossible for
inmates to open their cells windows. Loud complains that, with the closing ofthe windows, inmates
such as himself who suffer from asthma have experienced difficulties in breathing given "the lack of
ventilation fueled by extreme use of chemical agents."l Verified Comp!. ~ 12, ECF No.1.

He

claims that he has experienced "more asthma attacks in the last year than in many years" of his life.
Loud avers that the locking of the windows violates his right to "adequate ventilation."

Id. ~ 16.

Loud asserts that each time mace or a chemical agent is sprayed it causes him to
choke, his eyes become watery, his chest tightens, and it becomes hard to breathe. Verified Comp!.
~ 13.

Defendants

have filed a motion to dismiss or, in the alternative, for summary judgment which

remains unopposed.
defendants'

II.

ECF No. 12. All case documents

motion may be determined

have been examined.

without hearing.

I have concluded

that

See Loc. R. 105.6.

Defendants' Factual Contentions
Defendants

have raised a great deal offactual

Civ. P. 12(d), if, on a motion to dismiss, "matters

matter outside ofthe pleadings.
outside the pleadings

are presented

excluded by the court, the motion must be treated as one for summary judgment
parties must be given a reasonable

opportunity

Under Fed. R.
to and not

under Rule 56. All

to present all the material that is pertinent

to the

motion."

Fed. R. Civ. P. 12(d).

It appears that Plaintiff has been given adequate

notice of his

additional

burdens under Rule 56.

See Letter from Felicia Cannon, Clerk of the Court, to Donnell

Loud (Aug. 28, 2013), ECF No. 13; see also Roseboro v. Garrison, 528 F.3d 309, 310 (4th Cir.
1975) (per curiam) (reversing grant of summary judgment
notified of "the requirements

of the summary judgment

1091, 1094 (D.C. Cir. 1968))).
Compl. 5; see also 28 U.S.C.
perjury),

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However,

where pro se plaintiff was not sufficiently
rule" (quoting Hudson v. Hardy, 412 F .2d

because Plaintiffs

complaint

1746 (allowing for unsworn declarations

it is far from clear that Defendants

can demonstrate

when the allegations

an absertce of disputed

contained therein are based on personal knowledge."

will not consider

issues of

motion, it is well-settled

of an opposing affidavit for summary judgment purposes,

F .2d 820, 823 (4th Cir. 1991). Because Defendants'

see infra, I therefore

see Verified

to be made under penalty of

material facts in any event. Although Plaintiff did not oppose Defendant's
that "a verified complaint is the equivalent

is verified,

motion shows that they are entitled to dismissal,

the additional

summary judgment.

2

Williams v. Griffin, 952

question

of whether

they are entitled

to

III.

Failure to Exhaust
Defendants contend that Loud's claims are barred due to his failure to exhaust his

administrative remedies. Title 42 U.S.C.
respect to prison conditions under

S

S

1997e(a) provides that "[n]o action shall be brought with

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." The phrase "prison conditions" encompasses "all inmate suits about prison life, whether
they involve general circumstances or particular episodes, and whether they allege excessive force or
some other wrong."
administrative

Porter v. Nussle, 534 U.S. 516, 532 (2002).

Proper exhaustion of

remedies demands compliance with an agency's deadlines and other critical

procedural rules because "no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings."
Administrative exhaustion under

Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).

S 1997e(a) is not ajurisdictional

heightened pleading requirement on the prisoner.

requirement and does not impose a

Rather, the failure to exhaust administrative

remedies is an affirmative defense to be pleaded and proven by defendant(s). See Jones v. Bock, 549
U.S. 199,215-216 (2007); Anderson v. XYZ Correctional Health Servs., Inc., 407 F.3d 674, 682 (4th
Cir.2005).
Loud's claims fall under the exhaustion prerequisites of

S

1997e(a), and must be dismissed

unless he can show that he has satisfied the administrative exhaustion requirement or that defendants
have forfeited their right to raise non-exhaustion as a defense. See Chase v. Peay, 286 F. Supp. 2d
523,528 (D. Md. 2003). In Maryland, filing a request for administrative remedy with the Warden of
the prison in which one is incarcerated is the first of three steps in the ARP process provided by the
Division of Correction.

If this request is denied, the prisoner has thirty calendar days to file an

appeal with the Commissioner of Correction. If an appeal is denied, the prisoner has thirty days in
which to file an appeal to the Executive Director ofthe Inmate Grievance Office. See Md. Code Ann.
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Corr. Servo SS 10-206, 10-210; Md. Regs. Code Title 12
administrative remedies is undisputed.

S 07.01.03.

Loud's failure to exhaust

The record shows that Loud had access to the ARP

grievance process and frequently availed himself of it, but did not grieve claims regarding the use of
chemical agents and the closing of cell windows. Individual ARP Index Report for Donnell Loud,
Defs.' Mem. Ex. 4, ECF No. 12-5. In declining to oppose Defendants' motion to dismiss, Loud also
has declined to dispute his failure to exhaust. Accordingly, Loud's claim must be dismissed.
IV.

Plaintiffs Medical Records
Defendants have attached to their motion to dismiss a ninety-nine page exhibit that appears to

be Plaintiffs entire prison medical file. See Pi.'s Medical Records, Defs.' Mem. Ex. 3, ECF No. 124. Defendants' memorandum of law cites to isolated portions of Plaintiffs

medical records that

specifically deal with his asthma, see, e.g., Defs.' Mem. at 2 (citing to pages 6 and 49), ECF No. 121, and also appears to rely on the absence of any reports "refer(ring] to mace or pepper-spray," id., to
show that no such medical issues ever arose.
However, even on a cursory review of Plaintiffs

Medical Records, it is apparent that

Defendants have placed into the public record a tremendous amount of Plaintiffs extremely sensitive
and personal medical information, much of which bears no relevance to the instant case. Although
Defendants have complied with the letter of Fed. R. Civ. P. 5.1 (a) in redacting Plaintiffs date of
birth, they have otherwise been careless in publishing information that the records reflect Plaintiff
was reluctant to discuss even with his own medical professionals. Nor was it necessary to lay bare
Plaintiff s personal medical history to demonstrate the lack of asthma complaints arising out ofthe
use of pepper spray; Federal Rule of Evidence 803(10) makes clear that a declaration to that effect
would have sufficed under the circumstances. See Fed. R. Evid. 803(10) (allowing the admission of
"(t]estimony ... that a diligent search failed to disclose a public record or statement" to show that

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"(A) the record or statement does not exist; or (B) a matter did not occur or exist, if a public office
regularly kept a record or statement for a matter of that kind").
I have little doubt that Plaintiff's Medical Records were included in a good-faith, if perhaps
ill considered, attempt to meet Defendants' perceived evidentiary burdens. However, Defendants
and their counsel-who,

because of their official positions, frequently appear in this Court-would

be prudent to be more cautious with prisoners' sensitive personal information in the future. In the
instant case, Plaintiff's Medical Record has played no role in my ruling and, therefore, it would not
be an efficient use of this Court's resources to redact Plaintiff's Medical Records piecemeal. Rather,
I will, sua sponte, order that Plaintiff's Medical Records be sealed in its entirety in order to protect
Plaintiff's privacy.
V.

Conclusion
Because Plaintiff has not exhausted his administrative remedies, Defendants' motion to

dismiss shall be GRANTED .
.It is further ORDERED that Plaintiff's Medical Records, Defs.' Mem. Ex. 3, ECFNo. 12-4,
shall be sealed.
A separate Order shall be entered forthwith.

Paul W. G imm
United States District Judge

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