Sorensen v. Doe et al

Filing 70

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 9/9/2016. (c/m 09/12/2016 bus, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KENNETH SORENSEN, #408282, 1782085,

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Plaintiff,

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v.

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JOHN WOLFE, Warden, Jessup Correctional
Institution,
S. PRIGGS,Case Manager,
LT. BARNETT, Correctional Officer
CAPTAIN SHAW, Correctional Officer,
DR. MOORE, Psychologist,
CAROL JACKSON, Chief Medical
Supervisor,
GEORGE ALLEN, Case Manager,
ROBERT JORDAN, Correctional Officer,
LT. LEGRAND,
KEVIN J. McCOMANT,
SERGEANT SHEKEY SELLMAN,
FRANK B. BISHOP, JR.,
RICHARD 1. GRAHAM, JR.,
MICHAEL P. THOMAS,
W. SLATE,
RONALD GORDON,
ROBERT TICHNELL,
DAVID SIPES,
E. CLARK,
"BUL TER,"
"LIKIN,"
J.MONROE,
"KARUNZIE,"
JANE DOE #2, Escorting Transportation
Officer,

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Consol. Defendants.

Civil Action No. PWG-15-1198
Consol. Civil Action No. PWG-15-3041

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MEMORANDUM OPINION
Background
Self-represented

plaintiff Kenneth Sorensen filed a 42 U.S.C.

S

1983 civil rights

complaint, as amended and supplemented, requesting damages and injunctive relief.

Compl.,

ECF NO.1; Am. CompI., ECF NO.9; SuppI. Compi. No.1, ECF No. 21; Suppi. Compi. No.2,
ECF No. 35; Suppi. Compi. No.3,

ECF No. 43; Suppi. Compi. No.4,

ECF No. 52; Suppi.

Compi. NO.5, ECF No. 55; Suppi. Compi. No.6, ECF No. 64.1 Sorensen, who is an inmate in
the custody of the Maryland Division of Correction, claims Defendants failed to protect him
from harm during the time he was incarcerated at Western Correctional Institution ("WCI")
when, shortly after Sorensen informed on a fellow inmate, the prison staff placed a prison-gang
member in Sorensen's cell and the inmate upon whom Sorensen informed in the neighboring
cell.

Suppi. Compi. No.2,

at 22-24.2

Further, he claims Defendants unlawfully retaliated

against and harassed him; subjected him to unconstitutional conditions of confinement; denied
him necessary medical and dental care; denied his request to attend religious services; and denied
him due process and equal protection under the Fourteenth Amendment during the time he was
incarcerated at Jessup Correctional Institution ("JCI").
No.2,

Compi. 10-15, 18-19; Suppi. Compi.

at 43, 51. Sorenson is presently housed on protective custody at Eastern Correctional

Institution ("ECI").
Pending is Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment, ECF No. 57, which Sorensen has opposed, ECF No. 62. Also pending is-Sorensen's
Motion for a Preliminary Injunction.3 ECF No. 66. No hearing is necessary. See Loc. R. 105.6.

With Sorensen's Supplement to the Amended Complaint docketed at ECF No. 55, he filed
unsigned declarations that he appears to have written on behalf of eleven Defendants. ECF Nos.
55-5 to -15. These filings will not be considered. Insofar as Sorensen belatedly attempts to
amend the Complaint to name Claudia Howard, a psychiatrist at the Maryland Correctional
Institution-HagerstoWfi ("MCI-H"), and Anna Hartle, an administrative remedy coordinator at
MCI-H, these claims are not pertinent to matters at issue here and will not be considered.
Sorensen may pursue his MCI-H claims by filing a separate complaint.
1

Page numbers for citations to the Complaint, Amended Complaint, and Supplements to the
Amended Complaint, along with the accompanying attachments, refer to the CM/ECF page
numbers.

2

3

This is Sorensen's third motion for preliminary injunctive relief. In his first, Sorensen sought
2

For reasons stated herein, Defendants' motion will be treated as a motion for summary judgment,
and will be granted in part and denied in part without prejudice to renewal within twenty-eight
days. Plaintiff's Motion for Preliminary Injunctive Relief will be denied.
Standard of Review
Summary judgment is proper when the moving party demonstrates, through "particular
parts of materials

in the record, including

depositions,

information, affidavits or declarations, stipulations ...

documents,

electronically

stored

, admissions, interrogatory answers, or

other materials," that "there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c)(1)(A); see also Baldwin v.
City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to
the nonmoving party to identify evidence that shows that a genuine dispute exists as to material
facts. See Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). The existence of only a "scintilla
of evidence" is not enough avoid summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).

Instead, the evidentiary materials submitted must show facts from which the

finder of fact could reasonably find for the party opposing summary judgment.

Id. "In ruling on

a motion for summary judgment, this Court reviews the facts and all reasonable inferences in the
light most favorable to the nonmoving party." Downing v. Bait. City Bd. of Sch. Comm'rs, No.

injunctive relief concerning the screening, housing, and treatment of all inmates for mental
illness, appointment of a psychiatric expert to monitor Defendants' compliance, immediate
access for all inmates on long-term and continuous segregation to outdoor recreation, televisions,
microwaves, hot pots, improved ventilation, mandatory cell cleaning, improved dental health
treatment, and better pest control. ECF NO.4. I denied the motion on January 3,2015. ECF No.
7. Sorensen's second Motion for Preliminary Injunctive Relief was filed in consolidated Civil
Action No. PWG-15-3041 and sought preparation of a report of the findings-of-fact for each
grievance he submitted concerning his transfer to JCI. I denied that Motion on October 23,
2015. ECF No. 34.
3

RDB-12-1047, 2015 WL 1186430, at *1 (D. Md. Mar. 13,2015) (citing Scott v. Harris, 550 U.S.
372,378 (2007)).
Sorensen has filed voluminous

attachments

including records, lengthy handwritten

statements and declarations, and other documents, some of which are not relevant to matters at
issue, in support of his claim.4 Defendants have submitted declarations and verified records with
their dispositive motion. ECF Nos. 57-2 to -7.
The Court may consider a wider array of documents when it treats a motion to dismiss as
a motion for summary judgment, which it may do pursuant to Fed. R. Civ. P. 12(d).

See

Syncrude Canada, Ltd. v. Highland Consulting Grp., Inc., 916 F. Supp. 2d 620, 623 (D. Md.
2013). When the Court does so, "[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). Notably, "the Federal

Rules do not prescribe that any particular notice be given before a Rule 12 motion is converted to
a Rule 56 motion."

Ridgell v. Astrue, DKC-10-3280, 2012 WL 707008, at *7 (D. Md. Mar. 2,

2012). Thus, this requirement "can be satisfied when a party is 'aware that material outside the
pleadings is before the court.'"

Walker v. Univ. of Md. Med. Sys. Corp., No. CCB-12-3151,

2013 WL 2370442, at *3 (D. Md. May 30, 2013) (quoting Gay v. Wall, 761 F.2d 175, 177 (4th

On April 27, 2015, Sorensen filed a 36-page handwritten complaint and more than 150 pages of
attachments, including a separate declaration. ECF Nos. 1, 1-1 to -31. On May 8, 2015, I
ordered him to supplement the Complaint. ECF NO.5. On June 5, 2015, Sorensen filed an
Amended Complaint with approximately 300 pages of attachments and handwritten filings,
including another declaration. ECF Nos. 9,9-1 to -9. On July 7,2015, Sorensen filed a 40-page
Supplement to the Complaint with 43 pages of attachments. ECF Nos. 21, 21-1. On October 23,
2015, I granted Sorensen's request to consolidate this case with Civil Action No. PWG-15-3041.
ECF No. 33. I ordered the Complaint in that case docketed as a supplement at ECF No. 35 in the
instant matter, and directed Sorensen to further supplement his claims that he was physically
assaulted and denied religious service attendance during the time he was incarcerated at Jessup
Correctional Institution. ECF No. 34. Sorensen has since filed four additional supplements.
ECF Nos. 43, 54, 55, 64.

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Cir. 1985)) .. Though the Court "clearly has an obligation to notify parties regarding any courtinstituted changes in the pending proceedings, [it] does not have an obligation to notify parties of
the obvious." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998). Here,
Defendants designate their motion as a motion to dismiss, or in the alternative, motion for
summary judgment.

Further, Sorensen was provided the opportunity to dispute these exhibits

and has done so. See PI.'s Opp'n, ECF No. 62. For these reasons, it is appropriate to treat
Defendants' motion as a motion for summary judgment, and I will consider the exhibits attached
to it.
Discussion
Exhaustion of Administrative Remedies
Defendants have raised the affirmative defense of failure to exhaust administrative
remedies with regard to Sorensen's claims pertaining to his incarceration at WCI and several of
the claims pertaining to his incarceration at lCI. On that basis, they argue that the claims must
be dismissed. Defs.' Mem. 8-10, ECF No. 57-1.
The Prisoner Litigation Reform Act ("PLRA") provides, in pertinent part:
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 jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.
42 U.S.C.

S

I 997e(a).

This requirement is one of "proper exhaustion."

Woodford v. Ngo, 548 U.S. 81, 93

(2006). In Maryland, filing a request for administrative remedy with the Warden is the first of
three steps in the Administrative Remedy Procedure ("ARP") process provided by the Division
of Correction to its prisoners.

See Md. Code Ann., Corr. Servs.

12.07.01.02(D); Md. Div. Corr. Directive 18B5-002,
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V.B.

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10-206; Md. Code Regs.

If this request is denied, the

prisoner has thirty calendar days to file an appeal with the Commissioner of Correction.
Div. Corr. Directive 18B5-002,

9 VI.M.1.

Md.

If this appeal is denied, the prisoner has thirty days in

which to file an appeal to the Executive Director of the Inmate Grievance Office ("I GO"). Md.
Code Regs. 12.07.01.05(B).
The purpose of exhaustion is to: 1) allow a prison to address complaints about the
program it administers

before being subjected to suit; 2) reduce litigation to the extent

complaints are satisfactorily resolved; and 3) prepare a useful record in the event of litigation.
Jones v. Bock, 549 U.S. 199,219 (2007). An inmate's failure to exhaust administrative remedies
is an affirmative defense; the defendant bears the burden of proving that the prisoner had
remedies available to him of which he failed to take advantage. Id. at 216; Corey v. Daniels, 625
Fed. App'x 414, 415 (4th Cir. 2015) (per curiam); Moore v. Bennette, 517 F.3d 717,725

(4th

Cir. 2008).
Although an inmate "must exhaust available remedies," he "need not exhaust unavailable
ones."

Ross v. Blake, 136 S. Ct. 1850, 1858 (2016).

"[A]n administrative

remedy is not

considered to have been available if a prisoner, through no fault of his own, was prevented from
availing himself of it." Moore, 517 F.3d at 725. In Ross v. Blake, the Supreme Court of the
United States identified three circumstances when an administrative

remedy is unavailable.

First, an administrative procedure is unavailable when, despite what regulations or guidance
materials may promise, it "operates as a simple dead end-with
unwilling to provide any relief to aggrieved inmates."

officers unable or consistently

Ross, 136 S. Ct. at 1859. Second, "an

administrative scheme might be so opaque that it becomes, practically speaking, incapable of
use.

In this situation, some mechanism exists to provide relief, but no ordinary prisoner can

discern or navigate it." Id. The third circumstance arises when "prison administrators thwart

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inmates from taking advantage of a grievance process through machination, misrepresentation,
or intimidation'." ld. at1860.
Sorensen concedes his failure to exhaust claims arising from the time he was at WCI.
Pl.'s Opp'n 8. But he argues that he "did not know the ARP process even existed until Oct(.] or
November 2013." Id. Sorensen does not contend, however, that the process was a "dead end" or
too difficult to "discern or navigate" or that officials at WCI sought to hide or otherwise hinder
access to the process.

See Ross, 136 S. Ct. at 1859. Sorensen's conclusory and unsupported

statement is insufficient to demonstrate that administrative remedies were unavailable to him.
See id. Accordingly, his failure to protect claim based on his incarceration at and transfer from
WCI will be dismissed as unexhausted. See 42 U.S.C.

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1997e(a).

Defendants also contend that Sorensen's claims regarding conditions of confinement at
JCI are un exhausted because Sorensen did not file any grievance addressing lack of recreation
time, pest control problems,

or lack of amenities available to inmates in administrative

segregation at JCI. Defs.' Mem. 10; Neverdon Decl. ~ 7, Defs.' Mem. Ex. 6, ECF No. 57-7.
Defendants further argue that Sorensen's claims regarding harassment and retaliation by JCI
corrections staff are unexhausted because the 100 did not adjudicate the relevant claims until
October 29, 2015, well after Sorensen filed his complaint on April 27, 2015. Defs.' Mem. 10;
Neverdon

Decl. ~~ 10-13,

15.

Furthermore,

though Defendants

do not appear to raise

exhaustion as a defense to any of Sorensen's other JCI claims, 100 Executive Director Russell
A. Neverdon's

Declaration suggests that several other claims are unexhausted as well.

Neverdon Decl. ~~ 4, 6-16.

See

Neverdon admits that Sorensen exhausted his claim pertaining to

denial of dental services, Neverdon Decl. ~ 4, but then lists several other grievances that the 100
received on October 6, 2015, after Sorensen already had initiated this federal litigation with

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regard to the same grievances, see id. ~~ 6, 8-16.

Sorensen addresses N everdon' s account by

listing a number of ARPs that he says Neverdon "[p]urposely omitted['] including several final
adjudications."

Pl.'s Opp'n 4. But (with the exception of the denial of dental services claims) he

admits that the ARPs raising the grievances at issue in this lawsuit were not filed until October 6,
2015 and that they were not adjudicated until October 29,2015, six months after he filed suit on
April 27, 2015. Id. at 4,6.

Sorensen does not therefore provide evidence of any exhausted claim

other than the dental claims that Neverdon acknowledges were exhausted.
Although exhaustion is not a jurisdictional requirement under the PLRA, Anderson v.
XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), the Federal Rules of Civil
Procedure direct courts to construe the Rules to ensure "the just, speedy, and inexpensive
determination of every action and proceeding," Fed. R. Civ. P. 1. As discussed above, the
Neverdon Declaration indicates that Sorensen has only successfully exhausted claims related to
denial of dental treatment.

Sorensen responded to this declaration by admitting that his other

claims were not adjudicated until after he initiated his federal lawsuit. In the interest of just and
speedy resolution
Declaration

of the issues raised in this proceeding,

as an extension of the Defendants'

I will construe the Neverdon

motion and will dismiss as unexhausted

Sorensen's JCI claims, except those relating to denial of dental services. See Fed. R. Civ. P. 1.
Deliberate Indifference to Medical Needs
In the remaining claims, Sorensen complains that he was not escorted to the dental unit
for treatment he requested on January 23, 2013; February 25, 2013; August 13, 2013; October
10, 2013; November

25, 2013; December 20, 2013; February 26, 2014; April 14, 2014;

September 11,2014; and another time in April of2014, although the date is unspecified.

Compi.

18. As a result, he did not receive the dental care he felt he needed. Id. Sorensen maintains that

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he did not refuse dental treatment after June 13,2013.

!d. He claims that he is missing nine top

teeth and lacks a partial denture to keep his five bottom teeth straight, causing him to suffer
disfigurement and difficulty eating. !d. Additionally, Sorensen claims he suffered "sensitivity
and pressure and then throbbing pain for approximately 3 months" starting on January 15, 2014,
until his tooth was filled on June 13, 2014. Id.

Sorensen blames Sergeant Robert Jordan for

covering up what he characterizes as an "illegal no-escort policy" that prevented him from
receiving dental care. Sorensen Decl. 15, ECF No. 9-8.
The Eighth Amendment prohibits cruel and unusual punishment.
VIII.

U.S. Const. amend.

A prison official violates the Eighth Amendment when the official shows "deliberate

indifference to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976);
see also Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014).

"Denial of dental care is

considered a denial of medical care." Shipe v. Mumby & Simmons, No. DKC-12-561, 2012 WL
5417332, at *2 (D. Md. Nov. 5,2012)

(citing Hunt v. Dental Dep't, 865 F.2d 198 (9th Cir.

1989)). To be "serious," the condition must be "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."

Jackson, 775 F.3d at 178 (quoting Iko v. Shreve, 535 F.3d

225, 241 (4th Cir. 2008)) (internal quotation marks omitted).
"An official is deliberately indifferent to an inmate's serious medical needs only when he
or she subjectively knows of and disregards an excessive risk to inmate health or safety."
Jackson, 775 F.3d at 178 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)) (internal
quotation marks omitted). "[I]t is not enough that an official should have known of a risk; he or
I:.

she must have had actual subjective knowledge of both the inmate's serious medical condition
and the excessive risk posed by the official's action or inaction." Id. (citations omitted). Thus, a

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deliberate indifference claim has both an objective component-that
serious medical condition and an excessive risk to the inmate's
subjective. component-that

there objectively exists a
health and safety-and

a

the official subjectively knew of the condition and risk. Farmer,

511 U.S. at 834, 837 (holding that an official must have "knowledge" of a risk of harm, which
mllst be an "objectively, sufficiently serious").
Defendants do not argue that Sorensen did not suffer from a serious medical condition,
but they insist that Sorensen "fails to indicate that any particular Defendant recognized a serious
condition and purposely ignored it or interfered with access to the dentist." Defs.' Mem. 16. But
Sorensen asserts that Sergeant Jordan y.new of his difficulty securing an escort to dental
appointments because he "was present with Warden Wolfe on August 19, 2014 when [he]
showed" both individuals records of his failure to obtain an escort.

Compi. 19.

Further,

Sorensen holds Sergeant Jordan "personally responsible in a conspiracy to cover up [an] illegal
no-escort policy to dental .... " Sorensen Deci. 15. Moreover, while Director Neverdon attests
that the lOG dismissed Sorensen's dental claims as a grievance without merit, Neverdon Deci. ~
4, Defendants have not provided any record from the lOG hearing or a copy of the office's
determination.

Consequently, Defendants have not carried their burden of showing that they are

entitled to summary judgment.

Because genuine issues of material fact remain, summary

judgment will be denied without prejudice to renewal as to the dental claims.
Motion for Preliminary Injunction
Sorensen asks in his Motion for Preliminary Injunction for an order directing ECI prison
officials to return his "stolen mail" and to cease interfering with its delivery.
Sorensen also states that he is unsafe at ECI, and is again the object ofretaliation.

PI.'s Mot. 3-4.
PI.'s Mem. 5,

ECF No. 66-1. Sorensen's attempt to introduce new defendants and facts that are alleged to have

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occurred at another facility at a later time must be raised in a separate complaint.

He may not

circumvent the Federal Rules of Civil Procedure by presenting his new claims in a Motion for
Preliminary Injunctive Relief. See Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d
14, 16 (4th Cir. 1997) ("[A] preliminary injunction may never issue to prevent an injury or harm
which not even the moving party contends was caused by the wrong ,claimed in the underlying
action.").
Further, Sorensen fails to meet the standard for preliminary injunctive relief.

A party

seeking a preliminary injunction or temporary restraining order must establish all four of the
following elements: (l) he is likely to succeed on the merits; (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. Winter v. Nat. Res. De! Council, Inc., 555 U.S. 7, 20 (2008);
The Real Truth About Obama, Inc. v. Federal Election Comm 'n, 575 F.3d 342, 346-4 7 (4th Cir.
2009).

A preliminary injunction is an extraordinary and drastic remedy. See Munaf v. Geren,

553 U.S. 674, 689-90 (2008). In the prison context, courts should grant preliminary injunctive
relief involving the management
compelling circumstances.

of correctional

institutions

only under exceptional

and

See Taylor v. Freeman, 34 F.3d 266, 269 (4th Cir. 1994). A plaintiff

must show that the irreparable harm he faces in the absence of relief is "neither remote nor
speculative, but actual and imminent."

Direx Israel, Ltd. v. Breakthrough Med. Grp., 952 F.2d

802,812 (4th Cir. 1991) (citation omitted).
Sorensen's generally-stated claims that he fears for his safety are presented without any
supporting facts. These conclusory claims fail to demonstrate that he is facing irreparable harm
in the absence of some unspecified injunctive relief, or that the harm is neither "remote nor
speculative, but actual and imminent."

Direx, 952 F.2d at 812. Simply stated, he fails to meet

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his burden of demonstrating that he is likely to suffer irreparable harm in the absence of
preliminary relief, that an injunction would serve the public interest, and that the equities tips in
his favor. See Winter, 55 U.S. at 20. Therefore, his request for preliminary injunctive will be
denied.
Conclusion
For the reasons stated in this Memorandum Opinion, I will grant in part and deny in part
without prejudice to renewal within twenty-eight

days Defendants'

Motion for Summary

Judgment. I will grant summary judgment as to all claims arising from Sorensen's incarceration
at and transfer from WCI and all claims arising from Sorensen's incarceration at JCI, except for
those pertaining to his dental care. Accordingly Frank B. Bishop, Jr., Richard J. Graham, Jr.,
Michael P. Thomas, W.Slate, Robert Gordon, Robert Tichnell, David Sipes, E. Clark, "Butler,"
"Likin," J.Momoe, "Karunzie," Jane Doe #2, Dr. Moore, Kevin McComant, and Carol Jackson
will be dismissed as Defendants. The remaining Defendants will be granted twenty-eight days to
file a renewed motion for summary judgment as to Sorensen's claims that he was denied dental
care.

Sorensen will be given an opportunity to respond to the renewed motion.

Motion for Preliminary Injunction is denied.
A separate Order shall be entered reflecting this

Paul . Grimm
United States District Judge

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Sorensen's