Ortiz v. Green et al

Filing 17

MEMORANDUM. Signed by Judge Paul W. Grimm on 12/16/2013. (c/m 12/17/13)(ads, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JOSE ANTONIO ORTIZ, #410124
Plaintiff,
v.

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KATHLEEN S. GREEN,
SGT. JEETER,
OFFICER WATERS,
Defendants.

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CIVIL ACTION NO. PWG-13-120S

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*****
MEMORANDUM

I. Background and Procedural History
On April 23, 2013, Jose Antonio Ortiz ("Ortiz") filed a complaintl pursuant to 42 U.S.C.

S 1983, seeking

declaratory and injunctive relief, along with compensatory and punitive damages.

He names as defendants the Warden of the Eastern Correctional Institution ("ECI"), ECI Security
Sergeant Jeeter, and ECI Infirmary Security Correctional Officer Waters.
Ortiz complains in his complaint that he has been held "against his will" in the ECI infirmary
since February 2013. Further, as best as this Court can discern, he states that Jeeter: (1) instructed a
prison nurse in how to treat his Methicillin-Resistant Staphylococcus Aureus ("MRS A") infection;
(2) provided him a completed medical refusal form, falsely signed by Plaintiff; and (3) made racial
and ethnic epithets towards Plaintiff.

Comp!., ECF No.1.

Ortiz further complains that Waters

confronted him about the volume of his praying and threatened to cite him with an infraction for
praying aloud. He additionally complains that while housed in the infirmary he was never allowed

Although Ortiz styled his complaint as a verified complaint, he failed to sign the complaint, such
that it was neither verified nor properly filed. See Fed. R. Civ. P. II(a). At the direction of this
Court, see April 29, 2013 Order, ECF No.3, Plaintiff filed a signed signature page, ECF No.5, such
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outdoor recreation, access to the law library, or the ability to purchase food from the commissary. Id.
Defendants have filed a motion to dismiss or, in the alternative, motion for summary
judgment, ECF No. 15, which remains unopposed. See Loc. R. 105.2.a. All case documents have
been examined. I have concluded that Defendants' motion may be determined without a hearing.
See Loc. R. 105.6.
II. Defendants' Factual Contentions
Defendants have presented a large amount of factual material outside the scope of the
complaint. Under Fed. R. Civ. P. 12(d), if on a motion to dismiss, "matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for summary judgment
under Rule 56. All parties must be given a reasonable opportunity to present all material that is
pertinent to the motion." Fed. R. Civ. P. 12(d). It appears that Oritz has been given adequate notice
of his additional filing obligations under Rule 56.2 However, because Defendants' motion shows
that they are entitled to dismissal of the complaint, I will not consider the matters outside the
pleadings or the additional question of whether Defendants are entitled to summary judgment. See
id.
III. Failure to Exhaust
Defendants argue that Ortiz's claims are barred due to his failure to exhaust administrative
remedies. 42 U.S.c.
conditions under

S

S

1997e(a) provides that U[n]oaction shall be brought with respect to prison

1983 of this title, or any other Federal law by a prisoner confined in any jail,

that his complaint is signed, but not verified.
2 The record shows that Ortiz was served with notice of Defendants' filing pursuant to the
requirements of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). ECFNo. 16. As of the signing
of this Memorandum, no opposition response has been filed.
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pnson, 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 a jurisdictional

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. 199,215-16

(2007); Anderson v. XYZ Carr. Health Servs., Inc., 407 F.2d 674,682 (4th Cir.

2005).
Ortiz'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 administrative remedy
("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 of the Inmate
Grievance Office. See Md. Code Ann., Corr. Servo SS 10-206, 10-210; Md. Regs. Code Title 12 S
07.01.03.

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Ortiz's failure to exhaust administrative remedies is undisputed.

The unopposed record

shows that Ortiz had access to the ARP grievance process and regularly availed himself of it, but did
not fully grieve claims regarding officer harassment and improper behavior; access to outdoor
recreation, the law library, and commissary items; and his ability to engage freely in religious
worship. By seemingly abandoning his complaint and not filing an opposition, Ortiz has failed to
dispute the affirmative defense of failure to exhaust raised in Defendants' motion to dismiss. His
claims must be dismissed.
IV.

Defendants' Medical Record Exhibit
Ortiz's complaint concerns, in part, issues surrounding his MRSA infection. Accompanying

Defendants' dispositive motion is an exhibit of a 188-page portion of Ortiz's medical record, see
Defs.' Mem. Ex. 3, ECF No. 15-6, which Defendants state has been extracted from the over 1,000
pages of material provided to them by the private medical contractor, see Defs.' Mem. 4 n.6.
Defendants' supporting memorandum cites to isolated portions of the record that concern his MRS A
infection and deal with his wound care. See Defs.' Mem. 4-5.
Defendants have put into the public record a large amount of Ortiz's medical record, most of
which is irrelevant to the case. Some of these records involve highly sensitive personal medical and
mental health information. Defendants will not be allowed to place Ortiz's medical history out for
public scrutiny when a declaration presented under Federal Rule of Evidence 803(10) would have
sufficed to demonstrate that Defendants did not impede Ortiz from receiving constitutionally
adequate care for his MRSA infection. While counsel intimates that the defense has pared down the
admission of Ortiz's medical record to one-tenth of the records they were provided, she again is
cautioned to be more careful in submitting personal information in the future. Because the medical

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record has played no role in my decision, I will direct the Clerk to seal the medical record
temporarily in its entirety in order to protect Ortiz's privacy. Defendants shall have thirty days to
request the return of the medical records, after which time the Court will dispose of them in
accordance with Loc. R. 113.3.
V.

Conclusion
As Ortiz has not fully exhausted his administrative re

shall be granted. The Clerk shall place ECF No. 15-6 unde seal.

Date:

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l_C3 _

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Defendants' motion to dismiss
separate Order shall follow.