Barksdale v. Green et al

Filing 20

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/1/2016. (c/m 8/1/16 ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
HENRY BARKSDALE
Plaintiff,
v.

*

WARDEN KATHLEEN GREEN
DEPARTMENT OF PUBLIC SAFETY &
CORR. SERVICES
Defendants.

*

*

CIVIL ACTION NO. DKC-15-1109

*

*****
MEMORANDUM OPINION
Eastern Correctional Institution (“ECI”) inmate Henry Barksdale (“Barksdale), who is
representing himself,1 filed an original and amended 42 U.S.C. § 1983 complaint for injunctive
relief which relates to his confinement at ECI. ECF Nos. 1 & 9. In his original complaint,
received for filing on April 16, 2015, Barksdale provided a laundry list of issues associated with
the conditions at ECI.2 ECF No. 1.
Barksdale’s amended complaint for injunctive relief expounds on his allegations of
unconstitutional conditions as to the receipt of mattresses and pillows, the unavailability of portapotties or water coolers in the exercise yard or gymnasium, and the distribution of “adequate”

1

Barksdale’s attempt to file the complaint on behalf of himself and other ECI inmates was
rejected. Class certification was denied on May 22, 2015. ECF No. 8.
2

Barksdale complains that Defendants are forcing inmates to purchase over-the-counter medicine
from a private corporation, denying inmates the ability to use the bathroom during the library period,
refusing to place “pot-o-potties” in the recreation yard during recreation periods, denying inmates the
receipt of mattresses and pillows manufactured in the Maryland Correctional Enterprise mattress plant,
denying inmates a “living wage” from the vocational, education, hospital, and ground maintenance
departments, denying inmates adequate dietary food and exercise equipment, denying inmates the
required amount of time in the exercise yard and gym, denying inmates water coolers and drinking cups
in the recreation yard or gym, denying inmates’ families the opportunity to take photographs during
visiting hours and family day events, denying inmates the proper use of shelf lockers, and denying
inmates the opportunity to make adequate purchases of hygiene items and legal materials from a private
corporation. ECF No. 1, pp. 2-3.

food,3 the adequacy of medical care, and the issuance every six months of clothing and boots.
ECF No. 4.
Defendants, by their counsel, have filed a motion to dismiss or, in the alternative, motion
for summary judgment, accompanied by declarations and exhibits. ECF No. 18. No opposition
has been filed to the motion to dismiss or for summary judgment, and the time to do so has
expired.4 Oral hearing is not needed to resolve the issues. See Local Rule 106.5 (D. Md. 2016).
For the reasons to follow, Defendants’ motion, construed as a motion for summary judgment IS
GRANTED and judgment will be entered in their favor.
STANDARD OF REVIEW
Defendants’ motion is styled as a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, in
the alternative, for summary judgment under Fed. R. Civ. P. 56. ECF No. 12. A motion styled
in this manner implicates the court’s discretion under Rule 12(d) of the Federal Rules of Civil
Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F. Supp. 2d 431,
436-37 (D. Md. 2011). Ordinarily, a court “is not to consider matters outside the pleadings or
resolve factual disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d
442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider
matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must

3

Barksdale complains that outdated and saccharine-laced food is served to inmates. ECF No. 4, p.

3.
4

Pursuant to the dictates of Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), on
October 27, 2015, Barksdale was notified that Defendants had filed a dispositive motion, the granting of
which could result in the dismissal of his case. ECF No. 19. He was informed that he was entitled to file
materials in opposition to that motion within seventeen (17) days from the date of that letter and that his
failure to file a timely or responsive pleading or to illustrate, by affidavit or the like, a genuine dispute of
material fact, could result in the dismissal of his case or in the entry of summary judgment without further
notice of the court. Id.

2

be treated as one for summary judgment under Rule 56,” and “[a]ll parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P.
12(d). When the movant expressly captions its motion “in the alternative” as one for summary
judgment, and submits matters outside the pleadings for the court’s consideration, the parties are
deemed to be on notice that conversion under Rule 12(d) may occur; the court “does not have an
obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
Ordinarily, summary judgment is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont, supra, 637 F.3d at 448-49. However, “the
party opposing summary judgment ‘cannot complain that summary judgment was granted
without discovery unless that party has made an attempt to oppose the motion on the grounds
that more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302
F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,
961 (4th Cir. 1996)). To raise adequately the issue that discovery is needed, the non-movant
typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)),
explaining why, “for specified reasons, it cannot present facts essential to justify its opposition,”
without needed discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing
affidavit requirement of former Rule 56(f)). Particularly, “‘Rule 56(d) affidavits cannot simply
demand discovery for the sake of discovery.’” Hamilton v. Mayor & City Council of Baltimore,
807 F. Supp. 2d 331, 342 (D. Md. 2011) (quoting Young v. UPS, No. DKC-08-2586, 2011 WL
665321, at *20 (D. Md. Feb. 14, 2011)). “Rather, to justify a denial of summary judgment on the
grounds that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be
‘essential to [the] opposition.’” Scott v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D.
3

Md. 2011) (alteration in original) (citation omitted). A non-moving party’s Rule 56(d) request
for additional discovery is properly denied “where the additional evidence sought for discovery
would not have by itself created a genuine issue of material fact sufficient to defeat summary
judgment.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see
Amirmokri v. Abraham, 437 F. Supp. 2d 414, 420 (D. Md. 2006), aff’d, 266 F. App’x. 274 (4th
Cir.), cert. denied, 555 U.S. 885 (2008).
If a non-moving party believes that further discovery is necessary before consideration of
summary judgment, the party fails to file a Rule 56(d) affidavit at his peril, because “‘the failure
to file an affidavit … is itself sufficient grounds to reject a claim that the opportunity for
discovery was inadequate.’” Harrods, 302 F.3d at 244 (citations omitted). But, the non-moving
party’s failure to file a Rule 56(d) affidavit cannot obligate a court to issue a summary judgment
ruling that is obviously premature. Although the Fourth Circuit has placed “‘great weight’” on
the Rule 56(d) affidavit, and has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and
the need for additional discovery in a memorandum of law in opposition to a motion for
summary judgment is not an adequate substitute for [an] affidavit,’” the appellate court has “not
always insisted” on a Rule 56(d) affidavit. Id. (internal citations omitted). According to the
Fourth Circuit, failure to file an affidavit may be excused “if the nonmoving party has adequately
informed the district court that the motion is premature and that more discovery is necessary”
and the “nonmoving party’s objections before the district court ‘served as the functional
equivalent of an affidavit.’” Id. at 244-45 (internal citations omitted).
Barksdale has not filed an affidavit under Rule 56(d). In light of the foregoing, I am
satisfied that it is appropriate to address the Defendants’ Motion as one for summary judgment.
4

Summary judgment is governed by Fed. R. Civ. P. 56(a), which provides in part:
The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will
defeat the motion. By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247-48 (1986) (emphasis in original). “The
party opposing a properly supported motion for summary judgment ‘may not rest upon the mere
allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that
there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d
514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court should
“view the evidence in the light most favorable to . . . the nonmovant, and draw all inferences in
her favor without weighing the evidence or assessing the witness’ credibility.”

Dennis v.

Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). Because plaintiff is
self-represented, his submissions are liberally construed. See Erickson v. Pardus, 551 U.S. 89,
94 (2007). But, the court must also abide by the “‘affirmative obligation of the trial judge to
prevent factually unsupported claims and defenses from proceeding to trial.’” Bouchat, 346 F.3d
at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th
Cir. 1993), and citing Celotex Corporation v. Catrett, 477 U.S. 317, 323–24 (1986)).
Barksdale, who seeks injunctive relief to ameliorate what he perceives to be
unconstitutional conditions of confinement, must demonstrate: (1) by a “clear showing” that he is
5

“likely to succeed on the merits” at trial, (2) he is “likely to suffer irreparable harm in the
absence of preliminary relief,” (3) “the balance of equities tips in his favor,” and (4) “an
injunction is in the public interest,” as is required for injunctive relief. See Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 20-24 (2008); see Dewhurst v. Century Aluminum
Co., 649 F.3d 287, 290 (4th Cir. 2011).

The moving party must satisfy each of these

requirements as articulated. Real Truth About Obama, Inc. v. Federal Election Com’n, 575 F. 3d
342, 347 (4th Cir. 2009), vacated on other grounds, 555 U.S.1089 (2010), reinstated in relevant
part on remand, 607 F.3d 355 (4th Cir. 2010) (per curiam).
DISCUSSION
Defendants claim that Barksdale was transferred to ECI from the Western Correctional
Institution in November of 2012. ECF No. 18-4.5 In addressing Barksdale’s claims, Defendants
make the following general observations. Division of Correction Directive (“DCD”) 175.0004
establishes guidelines and provides an approved list of over-the-counter (“OTC”) medications
for all Division of Correction (“DOC”) facilities. There are currently 36 items on the list as the
only commissary items approved for medical use. ECF No. 18-6.
Defendants further maintain that DCD 245-5 governs inmate wage scales for different job
assignments. This DCD indicates that inmate assignments do not normally extend beyond eight
hours a days and forty hours per week; each assignment is classified into one of five pay
categories: skilled, student, semi-skilled, craftsman, or job bank/unpaid; inmate pay scales are
created for each level of skill and inmates, when assigned, are paid at the base wage for the
assigned skill level; requests for inmate pay raises are accepted every year in June, and if
5

All citations to electronic exhibits and declarations are referenced by their designation on the
automated docket.

6

approved, become effective July 1; pay raises are contingent upon the availability of appropriate
funding; and if funding is unavailable, requests for pay raises are postponed and considered the
following year. ECF No. 18-7.
Defendants assert that ECI Institutional Directive 145.001.1 sets out an organized
recreation and leisure time program for ECI inmates. ECF No. 18-8. They state that ECI
policies attempt to ensure that all inmates have access to recreational programs, including
leisure-time and outdoor activities, and to ensure that exercise areas are available in proportion to
the inmate population and are maintained in good condition. The correctional officer in charge
of ECI recreation submits an annual plan for replacement and renewal of equipment and an
annual report including accomplishments and plans and goals for the following year. ECF No.
18-8. Activities and equipment at ECI include a recreation yard, which includes basketball
courts, softball/baseball/football/soccer fields, a volleyball court, a weightlifting area, and
horseshoes. In addition, ECI maintains a gymnasium that includes weightlifting, basketball,
volleyball, handball, and pool and ping pong tables. Id. In 2015 “Evening Recreation” was
created to ensure that adequate daylight was available to provide inmates the required recreation
time. ECF No. 18-9.

ECI Dietary Manager James White affirms by declaration that Barksdale “has not
been on any special diets since being house here at ECI.” ECF No. 18-10. White further
maintains that there are no records supporting a finding that expired food products are
being served at ECI nor any complaints in reference to “saccharine-laced” foods. Id.
Defendants provide DCD 175-1 and ECI Institutional Directive 175.0001.1, reflecting the
policies and regulations governing the Inmate Welfare Fund and Use of Commissary. ECF No.
7

18-11 & ECF No. 18-12. In addition, they include a copy of the ECI Inmate Orientation
Handbook, which discusses a variety of topics, including commissary, diets, recreation,
programs and services, and the Maryland Correctional Enterprises (“MCE”). ECF No. 18-13.
According to the ECI banking system records, as of October 14, 2015, Barksdale had a
balance of $590.24 in his prison account and his account has consistently included payroll and
commissary transactions. ECF No. 18-14; ECF No. 18-15; & ECF No. 18-16. The ECI
Litigation Coordinator affirms that Barksdale maintains his employment status with the MCE
and has not qualified as an indigent inmate eligible for welfare commissary. ECF No. 18-21.
Policies governing inmate personal property are set out in directives and guidelines
provided by Defendants. They state that it is ECI’s policy to allow inmates to retain a reasonable
amount of personal clothing and valuables that do not pose a threat to the order and security of
the institution and to ensure that space is provided for storing inmate personal property safely
and securely. ECF No. 18-10; ECF No. 18-17; & ECF No. 18-18.
Defendants provide the Institutional Directive governing Inmate Family Days. ECF No.
18-19. Although the Directive does not mention the prohibition against camera usage during
Family Days as complained of by Barksdale, Defendants note that cameras are banned in the
institution and the taking of photographs by visitors is not permitted. ECF No. 18-21, Switalski
Decl.
Defendants observe that in December of 2012, Barksdale was placed on segregation and
went on a hunger strike, resulting in his missing seven meals as reported to medical staff. ECF
No. 18-20, filed separately exhibit, pp. 89-91. Barksdale had a partial thyroidectomy ten years
earlier and was placed on calcium. Id., p. 86. He refused to take his blood pressure medication
8

throughout 2013, due to side effects and was twice referred for a mental health evaluation due to
his non-compliance with his medication regimen.6 He was found competent to make medical
decisions. ECF No. 18-20, filed separately exhibit, pp. 47-86 & 109-116. On August 7, 2013,
Barksdale was seen in the medical department for knee pain, claiming that he injured his knee in
December of 2013, while jogging in the prison yard. Id., pp. 56-57. On January 30, 2014, a
cardiovascular diet was ordered for Barksdale.

He continued to refuse blood pressure

medication, an eye examination, and an EKG. Id., pp. 37-46 & 105-108. Defendants state that
Barksdale again was seen for knee pain in June of 2014 and was advised to stop running to
decrease the knee pain. He indicated he intended to keep running. Id, pp. 33-36, 100-101, &
104. As of July, 2014, Barksdale remained non-compliant with his hypertension medication and
failed to follow the cardiovascular diet ordered for him. Id., pp. 23-32 & 102-103.
On November 5, 2014, Dr. Oteyza observed that Barksdale had been taking Lisinopril
and Clonidine for the past two months for his hypertension. Amlodipine and HCTZ were added,
although Barksdale’s prior non-compliance with the medication was noted.7 He was to be seen
for a follow-up appointment in three weeks. At that time, Barksdale reported that he had been
90% compliant with his medication regimen. Id., pp. 20-22. As of February 18, 2015, Barksdale
reported that he continued to take his Lisinopril and Clonidine for his hypertension, but stopped
taking the HCTZ because it was causing him headaches and palpations. Id., p. 15. In May of
6

Defendants provide Barksdale’s lab reports and medication sheets from 2013, 2014, & 2015.
Paper No. 18-20, Filed Separately Exhibits, pp. 130-221.
7

The medications Lisinopril, Clonidine, Amlodipine, and HCTZ are used to treat high blood
pressure
(hypertension).
See
https://www.drugs.com/lisinopril.html,
https://www.drugs.com/clonidine.html,
https://www.drugs.com/amlodipine.html,
and
https://www.drugs.com/amlodipine.html.

9

2015, x-rays of the knee were conducted. They showed no joint effusion, no acute fracture,
dislocation, or subluxation, and preserved joint spaces and alignment. Barksdale was diagnosed
with arthritis of the knee. Glucosamine was prescribed. Paper No. 18-20, filed separately
exhibit, pp. 7-8, 14-17, & 28.
Defendants provide the January 26, 2015 and February 23, 2015 correspondence written
by Congressman Elijah Cummings and responded to by Dayena Corcoran, the Acting Assistant
Commissioner, East, in response to Barksdale’s claims regarding conditions at ECI. ECF No.
18-24.
Administrative Remedy Procedure (“ARP”) Coordinator Greg Ward affirms that
Barksdale filed an ARP in February of 2013 regarding a discrepancy in his inmate account
balance and as of October 15, 2015, this was the only ARP filed by Barksdale. ECF No. 18-25,
Ward Decl. & ECF No. 18-26. Further, former Inmate Grievance Office (“IGO”) Executive
Director Scott Oakley maintains that as of August 12, 2015, Barksdale has not filed any
grievance with the IGO since November 30, 2012. ECF No. 18-27, Oakley Decl.
ANALYSIS
The complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of
substantive rights,’ but provides ‘a method for vindicating federal rights elsewhere conferred.’”
Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3
(1979)). A suit under § 1983 allows “a party who has been deprived of a federal right under the
color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526
U.S. 687, 707 (1999). To state a claim under § 1983, a plaintiff must allege that: (1) a right
secured by the Constitution or laws of the United States was violated, and (2) that the alleged
10

violation was committed by a person acting under the color of state law. See West v. Atkins, 487
U.S. 42, 48 (1988).
Defendants assert that Barksdale’s claims are subject to dismissal under Rule 12(b)(6)
and/or subject to adverse judgment under Rule 56 on the chief grounds of respondeat superior,
failure to exhaust administrative remedies, and the failure to demonstrate a violation of his First,
Fourteenth and Eighth Amendments rights. The court shall address Defendants’ affirmative
defenses before examining Barksdale’s multiple First, Eighth, and Fourteenth Amendment
allegations.
A. Administrative Exhaustion
Defendants argue that Barksdale’s claims must be dismissed because he has failed to
exhaust available administrative remedies, as required by the Prison Litigation Reform Act of
1995 (“PLRA”), 110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e(a).

Exhaustion of

administrative remedies is an affirmative defense, which is most properly considered on a motion
for summary judgment. See Jones v. Bock, 549 U.S. 199, 216 (2007).
The Prisoner Litigation Reform Act (“PLRA”) provides, in pertinent part:
(a) Applicability of administrative remedies
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.
For purposes of the PLRA, “the term ‘prisoner’ means any person incarcerated or
detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent
for, violations of criminal law or the terms and conditions of parole, probation, pretrial release,
11

or diversionary program.” 42 U.S.C. § 1997e(h). 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.” Porter v. Nussle, 534
U.S. 516, 532 (2002). Thus, the exhaustion provision plainly extends to Barksdale’s allegations.
Administrative exhaustion under § 1997e(a) is not a jurisdictional requirement and does not
impose a heightened pleading requirement on the prisoner.

Rather, the failure to exhaust

administrative remedies is an affirmative defense to be pleaded and proven by defendants. See
Jones v. Bock, 549 U.S. at 215-216; Anderson v. XYZ Correctional Health Services, Inc., 407
F.2d 674, 682 (4th Cir. 2005).
The PLRA’s exhaustion requirement serves several purposes. These include “allowing a
prison to address complaints about the program it administers before being subjected to suit,
reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation
that does occur by leading to the preparation of a useful record.” Jones, 549 U.S. at 219; see
Moore, 517 F. 3d at 725 (exhaustion means providing prison officials with the opportunity to
respond to a complaint through proper use of administrative remedies). It is designed so that
prisoners pursue administrative grievances until they receive a final denial of the claims,
appealing through all available stages in the administrative process.

Chase v. Peay, 286

F.Supp.2d at 530; Gibbs v. Bureau of Prisons, 986 F.Supp. 941, 943-44 (D. Md. 1997)
(dismissing a federal prisoner’s lawsuit for failure to exhaust, where plaintiff did not appeal his
administrative claim through all four stages of the BOP’s grievance process); see also Booth v.
Churner, 532 U.S. 731, 735 (2001) (affirming dismissal of prisoner’s claim for failure to exhaust
where he “never sought intermediate or full administrative review after prison authority denied
12

relief”); Thomas v. Woolum, 337 F.3d 720, 726 (6th Cir. 2003) (noting that a prisoner must
appeal administrative rulings “to the highest possible administrative level”); Pozo v.
McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (prisoner must follow all administrative steps
to meet the exhaustion requirement, but need not seek judicial review).
Ordinarily, an inmate must follow the required procedural steps in order to exhaust his
administrative remedies. Moore v. Bennette, 517 F.3d 717, 725, 729 (4th Cir. 2008); see
Langford v. Couch, 50 F.Supp.2d 544, 548 (E.D. Va. 1999) (“[T]he PLRA amendment made
clear that exhaustion is now mandatory.”). But, this court is “obligated to ensure that any defects
in administrative exhaustion were not procured from the action or inaction of prison officials.”
Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); see Kaba v. Stepp, 458
F.3d 678, 684 (7th Cir. 2006).
An inmate need only exhaust “available” remedies. 42 U.S.C. § 1997e(a). In Ross v.
Blake, ____ U.S. ____, 136 S. Ct. 1850 (2016), the Supreme Court rejected a “freewheeling
approach to exhaustion as inconsistent with the PLRA.” Id. at 1855. In particular, it rejected a
“special circumstances” exception to the exhaustion requirement.

Id. at 1856-57.

But, it

reiterated that “[a] prisoner need not exhaust remedies if they are not ‘available.’” Id. at 1855.
In Ross, the Supreme Court stated that an administrative remedy is available if it is

“‘capable of use’ to obtain ‘some relief for the action complained of.’”8 Id. at 1859 (quoting
Booth v. Churner, 532 U.S. 731, 738 (2001)). An administrative remedy is not available “if a

8

The Supreme Court outlined three circumstances when an administrative remedy is unavailable and an
inmate’s duty to exhaust available remedies “does not come into play.” These circumstances arise when: the
remedy operates as a “simple dead end-with officers unable or consistently unwilling to provide any relief to
aggrieved inmates;” the administrative scheme might be so “opaque” as to become “practically speaking, incapable
of use;” and prison administrators “thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1859-60.

13

prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v.
Bennette, 517 F.3d at 725. Thus, an inmate must complete the prison’s internal appeals process,
if possible, before bringing suit. Chase v. Peay, 286 F. Supp. 2d at 529-30 (requiring that
Maryland prisoners appeal up to the IGO).
The Maryland Department of Public Safety and Correctional Services has made an
“administrative remedy procedure” available to Maryland State prisoners, within the meaning of
42 U.S.C. § 1997e(a), for the submission of “grievance[s] against…official[s] or employee[s] of
the Division of Correction.” Md. Code, Correctional Services Article (“C.S.”) § 10-206(a); see
generally C.S. §§ 10-201 et seq.; Code of Maryland Regulations (“COMAR”) 12.07.01.01(B)(1)
(defining ARP). Regulations promulgated by DPSCS concerning the administrative remedy
procedure define a “grievance’ to include a “complaint of any individual in the custody of the
[DOC]…against any officials or employees of the [DOC]…arising from the circumstances of
custody or confinement.” COMAR 12.07.01.01B(8). An inmate “must exhaust” the ARP
process as a condition precedent to further review of the inmate’s grievance. See C.S. § 10206(b); see also COMAR 12.07.01.02.D; DCD 185-002 (effective August 27, 2008).
Exhaustion requires completion of “the administrative review process in accordance with the
applicable procedural rules, including deadlines.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006).
In Maryland, filing a request for administrative remedy with the warden of the prison is
the first of three steps in the ARP process. See COMAR 12.07.01.04. The ARP request must be
filed within 30 days of the date on which the incident occurred, or within 30 days of the date the
inmate first gained knowledge of the incident or injury giving rise to the complaint, whichever is
later. COMAR 12.07.01.05A. If the request is denied, a prisoner has 30 calendar days to file an
14

appeal with the Commissioner of Correction. COMAR 12.07.01.05C. If the appeal is denied, the
prisoner has 30 days to file a grievance with the Inmate Grievance Office. See C.S. §§ 10-206, 10210; COMAR 12 07.01.03; COMAR 12.07.01.05B. See also Division of Correction Directive 185002, § VI.NI.

Complaints are reviewed preliminarily by the IGO.

See C.S. § 10-207; COMAR

12.07.01.06A. If the complaint is determined to be “wholly lacking in merit on its face,” the
IGO may dismiss it without a hearing. C.S. § 10-207(b)(1); see COMAR 12.07.01.07B. The
order of dismissal constitutes the final decision of the Secretary of DPSCS for purposes of
judicial review. C.S. § 10-207(b)(2)(ii). However, if a hearing is deemed necessary by the IGO,
the hearing is conducted by an administrative law judge with the Maryland Office of
Administrative Hearings. See C.J. § 10-208(c); COMAR 12.07.01.07-.08. The conduct of such
hearings is governed by statute. C.S. § 10-208.
A decision of the administrative law judge denying all relief to the inmate is considered a
final agency determination. However, a decision concluding that the inmate’s complaint is
wholly or partly meritorious constitutes a recommendation to the Secretary of DPSCS, who must
make a final agency determination within fifteen days after receipt of the proposed decision of
the administrative law judge. See C.S. § 10-209(b)-(c).
The final agency determination is subject to judicial review in Maryland State court, so
long as the claimant has exhausted his/her remedies. See C.S. § 10-210. But, an inmate need not
seek judicial review in State court in order to satisfy the PLRA’s administrative exhaustion
requirement. See, e.g., Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.) (“[A] prisoner who

15

uses all administrative options that the state offers need not also pursue judicial review in state
court.”), cert. denied, 537 U.S. 949 (2002).
Barksdale fails to refute the uncontroverted declarations which show that he never filed
an ARP or grievance with the IGO concerning the issues raised in this complaint. As such, the
allegations raised in this complaint may not proceed, as Barksdale has plainly failed to exhaust
administrative remedies as to those issues.

Even if Barksdale had properly exhausted his

administrative remedies, however, summary judgment in favor of the State Defendants would be
appropriate because the papers, declarations, and exhibits on file demonstrate that they did not
violate his constitutional rights.
Even were this court to examine the merits of the claims against the named defendants,
however, it would find for reasons to follow that Barksdale has failed to articulate a colorable
constitutional claim against them.9

9

Barksdale names ECI Warden Green as a Defendant, but at no point discusses precisely how she
was personally involved in the alleged deprivations. Under § 1983, individual liability must be based on
personal conduct. See Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985); see also Foote v. Spiegal,
118 F.3d 1416, 1423 (10th Cir. 1997). Further, absent subjective knowledge, a prison official is not
liable. Farmer v. Brennan, 511 U.S. 825, 847 (1994); see Johnson v. Quinones, 145 F.3d 164, 168 (4th
Cir. 1998).
Under Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), supervisory liability may attach to a prison
administrator under § 1983 if a plaintiff can establish three elements. These are: (1) “that the supervisor
had actual or constructive knowledge that his subordinate was engaged in conduct that posed ‘a pervasive
and unreasonable risk’ of constitutional injury to citizens like the plaintiff”; (2) “that the supervisor’s
response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization
of the alleged offensive practices’”; and (3) “that there was an ‘affirmative causal link’ between the
supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.” Id. at 799
(citations omitted). Under the first prong of Shaw, the conduct engaged in by the supervisor’s
subordinates must be “pervasive,” meaning that the “conduct is widespread, or at least has been used on
several different occasions.” Id. Barksdale has not made such a showing with regard to Warden Green.

16

B. Medical Claims
Barksdale complains about ECI inmates having to purchase of over-the-counter
medication from a private corporation (Keefe Group) and generally alleges that ECI inmates
receive inadequate medical care. The Eighth Amendment prohibits “unnecessary and wanton
infliction of pain” by virtue of its guarantee against cruel and unusual punishment. Gregg v.
Georgia, 428 U.S. 153, 173 (1976). “Scrutiny under the Eighth Amendment is not limited to
those punishments authorized by statute and imposed by a criminal judgment.” De’Lanta v.
Angeline, 330 F. 3d 630, 633 (4th Cir. 2003), citing Wilson v. Seater, 501 U.S. 294, 297 (1991).
In order to state an Eighth Amendment claim for denial of medical care, a plaintiff must
demonstrate that the actions of the defendants or their failure to act amounted to deliberate
indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); see
also Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). Deliberate indifference to a serious
medical need requires proof that, objectively, the prisoner plaintiff was suffering from a serious
medical need and that, subjectively, the prison staff was aware of the need for medical attention
but failed to either provide it or ensure the needed care was available. See Farmer v. Brennan,
511 U.S. 825, 837 (1994).
As noted above, objectively, the medical condition at issue must be serious.10 See
Hudson v. McMillian, 503 U.S. 1, 9 (1992) (there is no expectation that prisoners will be
provided with unqualified access to health care).

Proof of an objectively serious medical

condition, however, does not end the inquiry.

10

A “serious medical need” is “one that has been diagnosed by a physician as mandating treatment
or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's
attention.” Iko, 535 F.3d at 241, citing to Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999).

17

The subjective component requires “subjective recklessness” in the face of the serious
medical condition.

Farmer, 511 U.S. at 839-40.

“True subjective recklessness requires

knowledge both of the general risk, and also that the conduct is inappropriate in light of that
risk.” Rich v. Bruce, 129 F. 3d 336, 340 n. 2 (4th Cir. 1997). “Actual knowledge or awareness
on the part of the alleged inflicted…becomes essential to proof of deliberate indifference
‘because prison officials who lacked knowledge of a risk cannot be said to have inflicted
punishment.’” Brice v. Virginia Beach Correctional Center, 58 F. 3d 101, 105 (4th Cir. 1995),
quoting Farmer, 511 U.S. at 844. If the requisite subjective knowledge is established, an official
may avoid liability “if [he] responded reasonably to the risk, even if the harm was not ultimately
averted.” Farmer, 511 U.S. at 844. Reasonableness of the actions taken must be judged in light
of the risk the defendant actually knew at the time. Brown, 240 F. 3d at 390; citing Liege v.
Norton, 157 F. 3d 574, 577 (8th Cir. 1998) (focus must be on precautions actually taken in light
of suicide risk, not those that could have been taken). Inmates do not have a constitutional right
to the treatment of their choice, Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986), and
disagreements between medical staff and an inmate over the necessity for or extent of medical
treatment do not rise to a constitutional injury. See Estelle, 429 U.S. at 105-06; Wright v.
Collins, 766 F.2d 841, 849 (4th Cir. 1985); see also Fleming v. LaFevers, 423 F.Supp.2d 1064,
1070-71 (C.D. Cal. 2006).
Barksdale’s medical claims against Defendants are subject to dismissal. The undisputed
record shows that they did not interfere with or have any involvement in his medical care.11 See

11

Defendant Department of Public Safety and Correctional Services (“DPSCS”) is a state agency.
See Md. Code. Ann., Corr. Servs., Art., §§ 1-101(f). Neither a state nor an agency of a state is a “person”
within the meaning of 42 U.S.C. § 1983. See Will v. Michigan Dep=t of State Police, 491 U.S. 58, 64-65

18

Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994); Miltier v. Beorn, 896 F. 2d 848, 854 (4th Cir.
1990). Further, the record establishes that he was seen by nurses, physician’s assistants and
physicians; received blood tests and x-rays for his various complaints and to monitor his
condition; and was prescribed medication for his hypertension and cardiovascular conditions.
His non-compliance with the prescribed medication regimen and diet is well documented.
Further, as noted by Defendants, the DPSCS has an approved non-prescription OTC list
of medications available for purchase in the commissary thorough the Keefe Group and
approved by the private health care contractor. All non-indigent inmates are required to submit a
co-payment of $2.00 for each sick-call visit. Barksdale, who is not indigent, has failed to state
exactly how this policy has caused him injury or otherwise rendered him unable to receive OTC
medication.12
D. Conditions of Confinement
Barksdale raises a litigany of Eighth Amendment claims regarding the conditions at ECI.
(see p. 1 at n. 2 infra). To establish a claim for cruel and unusual punishment due to conditions
of confinement, a plaintiff must allege facts sufficient to show (1) an objectively serious

& 70-71 (1989). Moreover, state agencies are immune from liability under the Eleventh Amendment
from a § 1983 suit in federal court without regard to the nature of the relief sought. See Pennhurst State
School & Hospital v. Halderman, 465 U.S. 89, 101-01 (1984); C.H. v. Oliva, 226 F.3d 198, 201 (3rd Cir.
2000). The complaint against DPSCS is subject to dismissal for want of jurisdiction.
12

The court further notes that inmates are not entitled to free medical care, and any challenge to the
medical co-pay policy fails. See Rinehart v. Beck, No. 5:09–CT–3019–D, 2011 WL 52360, at *4 (E.D.
N.C. Jan. 5, 2011) (unpublished) (collecting cases), aff'd, 441 F. App'x 148 (4th Cir. 2011) (per curiam)
(unpublished); Gonzalez–Revna v. Ellis, No. 1:09CV522 AJT/TCB, 2009 WL 2421482, at *3 (E.D. Va.
July 27, 2009) (“Inmates are not entitled to free medical care, and an inmate’s displeasure at having to
pay such co-payment does not present a constitutional claim.”); Johnson v. Dep't of Pub. Safety & Corn
Servs., 885 F.Supp. 817, 820 (D. Md. 1995) (“co-pay requirements for prison medical services are
constitutional”).

19

deprivation of a basic human need causing serious physical or emotional injury, and (2) that
prison officials were deliberately indifferent to that need. Farmer v. Brennan, 511 U.S. 825, 834
(1994); Wilson v. Seiter, 501 U.S. 294, 198 (1991). To meet the first prong, a plaintiff must
allege facts sufficient to show that the condition complained of caused a “sufficiently serious”
deprivation of a basic human need. Farmer, 511 U.S. at 834. Only extreme deprivations will
make out an Eighth Amendment claim, and plaintiff has the burden of alleging facts sufficient to
show that the risk from the conditions of his confinement was so grave that it violated
contemporary notions of decency and resulted in significant physical or emotional injury. See
Hudson v. McMillian, 503 U.S. 1, 8 (1992); Strickler v. Waters, 989 F.2d 1375, 1379–81 (4th
Cir. 1993). A plaintiff cannot have been subject to unconstitutional confinement conditions
unless he can show a serious or significant physical or mental injury as a result of those
conditions. Strickler, 989 F.2d at 1380–81 (finding that the inmate's legal complaint about
overcrowding and poor ventilation did not constitute a constitutional violation because inmate
did not allege that he suffered from any specific injury as a result of those purported conditions).
To meet the second prong, a plaintiff must allege facts sufficient to show that the
defendant knew of circumstances from which an inference could be drawn that a “substantial risk
of serious harm” was posed to plaintiff's health and safety, that he drew that inference, and
disregarded the risk posed. Farmer, 511 U.S. at 837. Such deprivations may be demonstrated
by producing evidence of a serious or significant physical injury resulting from the challenged
conditions, Strickler, 989 F. 2d at 1380-81; Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir.
1997), or by demonstrating a substantial risk of serious harm resulting from the unwilling
exposure to the challenged conditions. See Helling v. McKinney, 509 U.S. 25, 33-35 (1993)
20

(exposure to environmental tobacco smoke). The key in determining whether prison conditions
become cruel and unusual requires examination of the effect on the inmate. See Rhodes v.
Chapman, 452 U.S. 337, 364 (1981). It is of note that the aforementioned burdens of proof
remain the standard of review in the Supreme Court and this circuit.
The “minimal civilized measure of life’s necessities” includes adequate shelter, food,
clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th
Cir. 2000) (quotation marks and citations omitted). The time period during which an inmate is
deprived of a basic necessity is important in determining whether the deprivation was
unconstitutional. See Chappell v. Mandeville, 706 F.3d 1052, 1060 (9th Cir. 2013) (citing Hutto
v. Finney, 437 U.S. 678, 686–687 (1978) for the proposition that “a condition of confinement
which does not violate the Eighth Amendment when it exists for just a few days may constitute a
violation when it exists for ‘weeks or months' ”); Hearns v. Terhune, 413 F.3d 1036, 1043 (9th
Cir. 2005); see also Hope v. Pelzer, 536 U.S. 730 (2002) (Eighth and Fourteenth Amendment
violations when inmate was handcuffed to a hitching post for several hours without bathroom
breaks); Fountain v. Talley, 104 F. Supp.2d 1345 (M.D. Ala. 2000) (Eighth Amendment claim
stated as to inmate chained to hitching post for significant time after use of laxative without
access to bathroom facilities). However, “the more basic the need, the shorter the time it can be
withheld.” Johnson, 217 F.3d at 731(citations omitted); “Minor deprivations suffered for short
periods of time will not rise to the level of an Eighth Amendment violation, but ‘substantial
deprivations of shelter, food, drinking water, and sanitation may meet the standard despite their
even shorter duration.’” Jacobs v. Quinones, No. 1:10–cv–02349 WL 144234, at *7 (E.D. Cal.
Jan. 11, 2013) (citing Johnson, 217 F.3d at 729–730).
21

The court has examined the unopposed record exhibits provided by Defendants and finds
that Barksdale has failed to demonstrate that the conditions to which he was exposed constitute
punishment and that he experienced injury directly related to those conditions.
E. Prison Job Assignments
While prison employment may serve an important rehabilitative function, the law is well
settled that a prisoner has no constitutional right to participate in an educational or rehabilitative
program. See Moody v. Daggett, 429 U.S. 78, 88 at n. 9 (1976) (due process clause not
implicated by prisoner classification and eligibility for rehabilitative programs, even where
prisoner suffers “grievous loss”); Bulger v. United States Bureau of Prisons, 65 F.3d 48, 49 (5th
Cir. 1995) (“Prisoner classification and eligibility for rehabilitation programs...are not directly
subject to ‘due process’ protections”) (citing Moody, supra.). Barksdale was afforded a job in
the MCE and has been receiving wages. He has no constitutionally protected liberty interest in
receiving a “living wage” for work performed. See Washlefske v. Winston, 234 F.3d 179, 184
(4th Cir. 2000) (finding that a prisoner has no property interest in wages earned); Borror v.
White, 377 F.Supp. 181, 183 (W.D. Va. 1974) (“[T]here exists no [federal] constitutional right
on the part of a state prisoner to be paid for his labor.”).13
Access to Courts
Barksdale makes an ambiguous reference to his inability to purchase the appropriate
amount of legal materials and claims he has “suffered loss of adequate access to meet court
deadlines because of the restrictions to purchase legal materials in order to comply with court
procedures.” Inmates are entitled to “a reasonably adequate opportunity to present claimed
13

To the extent that Barksdale generally complains that Defendants have violated prison directives
with regard to medical care and the “living wage,” he has failed to set out a constitutional violation. See
Ricco v. County of Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990)(violations of a procedure not required by
the Constitution does not state a due process claim); Keeler v. Pea, 782 F. Supp. 42, 44 (D. S.C. 1992) (§
1983 protects against constitutional violations not violations of prison rules).

22

violations of fundamental constitutional rights to the courts.” Bounds v. Smith, 430 U.S. 817,
825 (1977); see also Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978). In 1996, the
Supreme Court clarified the Bounds decision by finding that a deprivation of a prisoner’s right of
access to the courts is actionable, but only when the prisoner is able to demonstrate actual injury
from such deprivation. See Lewis v. Casey, 518 U.S. 343, 349 (1996). According to the Lewis
opinion, the Constitution does not guarantee inmates the ability to litigate every imaginable
claim they can perceive, only that they be given the tools necessary “in order to attack their
sentences, directly or collaterally, and in order to challenge the conditions of their confinement.”
Id. at 355.
Barksdale’s access-to-courts claim is vague and generalized. He provides no supporting
materials to show how the alleged restrictions on his ability to purchase “legal materials”
rendered him unable to pursue legal matters in court or otherwise caused him real injury. This
claim shall be dismissed.
CONCLUSION
Having found no genuine dispute of material fact justifying a trial on the merits in this
case, Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment,
construed as a motion for summary judgment, shall be granted. A separate Order shall be
entered forthwith.

Date: August 1, 2016

__________/s/______________
DEBORAH K. CHASANOW
United States District Judge

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