Hendrick v. Wexford Health Sources Inc. et al

Filing 89

MEMORANDUM ORDER DENYING 80 Medical Defendants' Motion for Reconsideration; GRANTING IN PART AND DENYING IN PART 81 State Defendants' Motion for Reconsideration; DISMISSING all claims against Warden Bishop; GRANTING 82 Hendrick's Motion to Appoint Counsel and GRANTING 87 Hendrick's Motion to Correct Statement of Error. Signed by Judge Theodore D. Chuang on 8/19/2016. (kns, Deputy Clerk)(c/e-m PBC 8/19/16) Modified to include (c/m Plaintiff on 8/19/2016). (kns, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

LARNELL HENDRICK,
Prisoner Identification No. 209-362,
Plaintiff,
v.
FRANK B. BISHOP,
individually and as Warden of North Branch
Correctional Institution,
LIEUTENANT SAWYERS,
in his individual and official capacity,
SERGEANT G. FORNEY,
in his individual and official capacity,
CO II SOLTAS,
in his individual and official capacity,
CO II ANDERSON,
individually and in an official capacity,
BILL BEEMAN,
individually and as Medical Director of North
Branch Correctional Institution, and
DR. AVA JOUBERT,

Civil Action No. TDC-14-2544

Defendants.

MEMORANDUM ORDER
On March 15, 2016, the Court issued an Order granting in part and denying in part the
Motion for Summary Judgment filed by Defendants Frank B. Bishop, Warden of the North
Branch
Sawyers;

Correctional

Institution

in Cumberland,

Maryland

Sergeant Gregory Forney; CO II Nicholas

("NBCI");

Lieutenant

Thomas

Soltas; and CO II Chris Anderson

(collectively, the "State Defendants") and denying the Motion for Summary Judgment filed by
Defendants Bill Beeman, the alleged medical director at NBCI; and Dr. Ava Joubert, a physician
at NBCI (collectively, the "Medical Defendants").

On March 29, 2016, the State and Medical

Defendants filed separate Motions to Reconsider pursuant to Federal Rule of Civil Procedure
54(b). Also pending before the Court is Plaintiff Larnell Hendrick's Motion for Appointment of
Counsel, filed on March 31, 2016, and Motion to Correct Statement of Error, filed on April 22,
2016. The motions are ready for disposition, and a hearing is unnecessary.
105.6.

For the reasons that follow, Hendrick's

See D. Md. Local R.

Motion to Correct Statement of Error is

GRANTED, the Medical Defendants' Motion to Reconsider is DENIED, the State Defendants'
Motion to Reconsider is GRANTED IN PART and DENIED IN PART, and Hendrick's Motion
for Appointment of Counsel is GRANTED.

I.

Motion to Correct Statement of Error
Hendrick has filed a "Motion to Correct Statement of Error," in which he seeks to amend

various dates in his Opposition to Defendants' Motions to Reconsider.

Because the Motion is

unopposed

to file their Reply to

and because Defendants

have since had an opportunity

Hendrick's Opposition, the Motion to Correct Statement of Error is granted.

II.

Defendants' Motions to Reconsider
Under Rule 54(b), "any order or other decision, however designated, that adjudicates

fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties' rights and liabilities."

Fed. R. Civ. P.

54(b). Reconsideration under Rule 54(b) is at the sound discretion of the district court. See Am.
Canoe Ass 'n, Inc. v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003). Although the Rule
54(b) standard is not as exacting as the Rule 59 and 60 standard, see Fayetteville Inv'rs v.
Commercial Builders, Inc., 936 F.2d 1462, 1472 (4th Cir. 1991), revisiting earlier rulings is still
"subject to the caveat that 'where litigants have once battled for the court's decision, they should
neither be required, nor without good reason permitted, to battle for it again, '" Official Comm. of
2

the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d
Cir. 2003) (quoting Zdanok v. Glidden Co., Durkee Famous Foods Div., 327 F.2d 944, 953 (2d
Cir. 1964)).
A.

The Medical Defendants' Motion to Reconsider

The Medical Defendants assert that the Court should reconsider the denial of their
Motion for Summary Judgment because Beeman did not have the authority to change Hendrick's
cell status, and the decision to move Hendrick to a double cell was made for medical reasons.
With respect to Beeman, the Medical Defendants assert that he is not, in fact, the Medical
Director at NBCI, but rather is the Assistant Regional Director of Nursing for the region
including NBCI and does not have the authority to make cell recommendations.

Although

Hendrick has at times referred to both Beeman and Colin Otley as the Medical Director, the
Court's denial of summary judgment was not premised on Beeman's specific position or job
responsibilities.

Rather, it was based on Hendrick's allegations that Beeman had asked him if he

would be willing to sign off on his pending grievance relating to an earlier alleged assault by
correctional officers, and that shortly after he refused, Sgt. Forney stated that Beeman had ,given
the "green light" to take away his single cell and put Hendrick "under attack." Hendrick Decl. ~~
15-16, Pl.'s Opp'n State Defs.' Mot. Dismiss or in the Alternative Mot. Summ. J. Ex. 4, ECF
No. 53-5. Beeman did not have to be the Medical Director to participate in a collective effort to
retaliate against Hendrick. Although Hendrick's allegations may not prove to be true, he has put
forth facts sufficient to establish a genuine dispute of material fact.
The Medical Defendants also assert that there was no retaliation because the medical visit
that culminated in the decision to move Hendrick to a double cell was pre-planned.
Medical Defendants offer additional detail relating to Hendrick's

3

Although the

course of treatment, their

argument is not fundamentally different from the one that the Court carefully reviewed and
rejected in its March 15, 2016 Memorandum Opinion and Order.

Although the Medical

Defendants argue that the cell status change decision developed through a natural course of
events, Hendrick has offered evidence that it occurred shortly after he was asked to and refused
to abandon an excessive force claim in exchange for maintaining his single cell. Significantly,
Hendrick had been approved in February 2014 for a single cell for a full year, only to have it
taken away prematurely in the same time frame as this alleged exchange. Although f~rther
factual development through discovery may provide greater clarity, Hendrick has at this point
established a genuine issue of material fact on retaliation. Therefore, the Medical Defendants'
Motion to Reconsider is denied.
B.

The State Defendants' Motion to Reconsider

The State Defendants assert that the Court should reconsider its decision to deny their
Motion for Summary Judgment because the Complaint fails to state a claim upon which relief
can be granted, Hendrick has not established a genuine dispute of material fact, and Hendrick
failed to exhaust administrative remedies.
The State Defendants assert that the Complaint fails to state a claim of excessive force
against Warden Bishop, Lieutenant Sawyers, Sergeant Forney, CO Soltas and CO Anderson.
The Court will grant the motion as to Warden Bishop, against whom there are no factual
allegations relating to the excessive force claims.

The Motion is denied as to remaining

defendants. Contrary to the State Defendants' claim, Hendrick has provided a sworn declaration
that Sergeant Forney told him that Lieutenant Sawyers and Beeman gave the "green light" to put
him "under attack."

Hendrick Decl. ~~ 15-16.

The State Defendants now reference the

statement of inmate Tremaine Kitchen, who told the Internal Investigative Unit ("IIU")

4

investigator that Officers Soltas and Anderson physically picked Hendrick up and forced him
into a cell without assaulting him, and they assert that Leonard Haley's declaration, which the
Court referred to in its Memorandum Opinion, see Hendrick v. Bishop, 2016 WL 1060212, at *4,
lacks credibility.

These assertions do not alter the Court's conclusion that there is a genuine

issue of material fact, based on the accounts of Hendrick and Haley, that CO Soltas and CO
Anderson applied excessive force against Hendrick at the direction of Lieutenant Sawyer and
Sergeant Fomey.
As for the claim that Hendrick failed to exhaust administrative remedies before filing his
Complaint, the Prison Litigation Reform Act states, ''No action 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, or other correctional facility until such administrative remedies as
are available are exhausted."

42 U.S.C. ~ 1997e(a) (2012). Although the United States Court of

Appeals for the Fourth Circuit has not decided the issue, the weight of circuit authority indicates
that the administrative process must be fully completed before the complaint is filed. See Neal v.
Goord, 267 F.3d 116, 121-22 (2d Cir. 2001) (holding that inmates must exhaust before filing
suit); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (same); Perez v. Wis. Dep't of
Corr., 182 F.3d 532, 534-35 (7th Cir. 1999) (same); see also Kitchen v. Ickes, 116 F. Supp. 3d
613, 624 (D. Md. 2015) ("Exhausting administrative remedies after a complaint is filed will not
prevent a case from being dismissed for failure to exhaust administrative remedies."); but see
Williams v. Norris, 176 F.3d 1089, 1090 (8th Cir. 1999) (holding that inmates must exhaust
before the district court issues a ruling).
Complaint

There is no dispute that the Hendrick filed his

in this case without having filed an Administrative

("ARP") relating to the alleged excessive force.

5

Remedy Procedure request

There remains the question, however, whether administrative remedies were "available"
to Hendrick. See 42 U.S.c.

9

1997e(a). Since the Court's Memorandum Opinion was issued,

the Supreme Court overturned Blake v. Ross, 787 F.3d 693 (4th Cir. 2015), an opinion the Court
previously cited in its exhaustion analysis, see Hendrick, 2016 WL 1060212, at *3-4.

The

Supreme Court held that while there is no "special circumstances" exception to the PLRA
exhaustion requirement, it nevertheless may be satisfied if administrative remedies are
unavailable. See Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). For example, a remedy may be
unavailable if "it operates simply as a dead end-with officers unable or consistently unwilling
to provide any relief to aggrieved inmates," if the administrative scheme is "so opaque that it
becomes, practically speaking, incapable of use," or if "prison administrators thwart inmates
from taking advantage of a grievance process through machination, misrepresentation, or
intimidation." Id. at 1859-60.
Here, Hendrick stated in his declaration that on July 25, 2014, before he filed his
Complaint in the present case, he told Lieutenant Janet Puffenberger and CO II Steven J. Miller,
Jr. that he wanted to file an ARP regarding the excessive force claim. He claims, however, that
Lieutenant Puffenberger refused his request and told him that an ARP could not be filed because
the lIU would be conducting an investigation. The next week, he was told a second time by
these officials that his ARP would not be processed. He asserts that he submitted an ARP
anyway, but he never received any response. That ARP, however, related to Hendrick's transfer
to a double cell, not an allegation of excessive force. According to Hendrick, in mid-August
2014, he again stated that he wanted to file an ARP relating to excessive force and was told by
Lieutenant Jason Harbaugh that it could not be filed. He filed his Complaint in this case on
August 8,2014.

6

In seeking reconsideration, the State Defendants have submitted declarations from
Lieutenant Harbaugh, Lieutenant Puffenberger, and CO II Miller that contradict Hendrick's
account. They also assert that Hendrick is knowledgeable about the ARP process, and that new
Division of Correction Directives ("DCD") and inmate handbooks indicate that inmates should
file ARPs in all circumstances, even when an IID investigation has been opened.

These

materials do not provide a basis to reconsider the decision. The submitted declarations simply
create a genuine issue of fact regarding what Hendrick was told when he sought to file an ARP.
On a motion for summary judgment, the facts must be taken in the light most favorable to
Hendrick. Although Hendrick had previously filed an ARP, on July 9, 2013, relating to an
earlier incident of alleged excessive force, that ARP was dismissed procedurally because the
matter was the subject of an IID investigation, an outcome that supports rather than refutes the
position that the ARP process was not truly "available" on an excessive force matter. As for the
cited DCD provision, it states that the Warden is to issue a final dismissal of an ARP if it relates
to the same incident addressed in an IID investigation. Division of Correction Directive No.
185-003 ~ NA, Defs.' Mot. Reconsider Ex. 5, ECF No. 81-6. Even if such a dismissal is
appealable, the fact that wardens are explicitly instructed to dismiss ARPs in this manner may
indicate that as a practical matter, the ARP process is just not available when an IID
investigation is at issue. See Ross, 136 S. Ct. at 1860 (considering whether the practice of
wardens routinely dismissing ARP grievances as procedurally improper when an IID
investigation is pending may render the ARP remedy "unavailable").
Considering the present record, the Court concludes that further factual development is
needed prior to resolution of the administrative exhaustion issue. See Ross, 136 S. Ct. at 1862
(remanding for assessment of whether the ARP process was an "available" remedy because the

7

materials provided "may not represent the complete universe of relevant documents").
Hendrick can establish that administrative

remedies were "unavailable"

Whether

under Ross is best

resolved after discovery, to ensure not only that all relevant documents are collected and
considered, but also that the record is clear on what Hendrick knew or should have known about
the ARP process when an lIU investigation

is involved, what information NBCI officials

provided to him, and how they responded, both officially and unofficially, to his inquiries and
requests.

The Court will therefore deny the Motion and will reaffirm the denial of summary

judgment at this time.

III.

The Motion for Appointment of Counsel
In its Memorandum Opinion of March 15, 2016, the Court invited Hendrick to file a

Motion for Appointment

Counsel to represent him on the remaining

claims.

Hendrick's

unopposed Motion is now granted. "The court may request an attorney to represent any person
unable to afford counsel."

28 U.S.C. ~ 1915(e)(l)

(2012).

"The power to appoint is a

discretionary one, but it is an abuse of discretion to decline to appoint counsel where the case of
an indigent plaintiff presents exceptional circumstances."

Whisenant v. Yuam, 739 F.2d 160, 163

(4th Cir. 1984). Whether such circumstances exist depends on the type and complexity of the
case as well as the abilities of the individuals bringing it.

Id.

As Hendrick notes, his

incarceration substantially limits his ability to conduct discovery and limits to locate material
witnesses.

Hendrick has also sought to obtain counsel on his own, to no avail. At this stage of

the case, the prospect of conducting discovery, addressing ongoing issues such as exhaustion of
administrative remedies, and proceeding to trial if necessary warrants appointment of counsel.
The Motion is therefore granted. The Court notes that Hendrick has had counsel appointed in a

8

related case. See Order Appointing Counsel, Hendrick v. Gordon, No. DKC-14-2398 (D. Md.
Feb. 5,2016).
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Medical Defendants'

Motion

to Reconsider, ECF No. 80, is DENIED. The State Defendants' Motion to Reconsider, ECF No.
81, is GRANTED as to Warden Bishop and DENIED as to the remaining State Defendants.

All

claims against Warden Bishop are now DISMISSED.
Hendrick's

Motion for Appointment

of Counsel, ECF No. 82, is GRANTED" and

Hendrick's Motion to Correct Statement of Error, ECF No. 87, is GRANTED.
shall issue.

Date: August 19,2016
THEODORED.
United States District

9

A separate Order