Sorensen v. Doe et al

Filing 92

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 6/19/2017. Associated Cases: 8:15-cv-01198-PWG, 8:15-cv-03041-PWG(c/m 6/19/2017 tds, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KENNETH SORENSEN, #408282, 1782085, *
Plaintiff,
v.

*
*

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

JOHN WOLFE, Warden, Jessup Correctional *
Institution, et al.,
*
Consol. Defendants.

*
***
MEMORANDUM OPINION

On September 9, 2016, I granted summary judgment in favor of Defendants in Plaintiff
Kenneth Sorensen’s 42 U.S.C. § 1983 claim pertaining to his incarceration at Western
Correctional Institution (“WCI”) and Jessup Correctional Institution (“JCI”), except as to his
claims concerning his dental care at JCI, and granted Defendants twenty-eight days to file a
renewed motion for summary judgment as to that claim. Mem. Op., ECF No. 70; Order, ECF
No. 71.

On October 7, 2016, Defendants filed a renewed Motion to Dismiss, or in the

Alternative, Motion for Summary Judgment, Defs.’ Mot., ECF No. 74, which I will construe as a
renewed Motion for Summary Judgment, along with an accompanying memorandum, Defs.’
Mem., ECF No. 74-1, in response to which Sorensen has filed an Opposition,1 Pl.’s Opp’n, ECF
No. 76. Upon review of the renewed Motion and Sorensen’s Opposition, I find a hearing is
unnecessary. See Local Rule 105.6 (D. Md. 2016). In addition, I will also consider Sorensen’s
Motions for Leave to Amend the Complaint, ECF Nos. 72, 83, 85 and his Motion for

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Sorensen did not file a timely Opposition, see ECF No. 75, but he filed a Motion for an
Extension of Time shortly after the Court received the filing, ECF No. 80, and the Defendants
were not prejudiced by the late filing. Accordingly, I will retroactively grant Sorensen’s Motion
for an Extension and will consider his Opposition.

Reconsideration, ECF No. 73. For reasons stated below, I will GRANT Defendants’ Motion for
Summary Judgment and DENY Sorensen’s Motions.
Preliminary Matters
Motions for Leave to Amend the Complaint
I shall first consider Sorensen’s three Motions for Leave to Amend the Complaint. When
Fed. R. Civ. P. 15(a)(1) is inapplicable, then “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962)
(“If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of
relief, he ought to be afforded an opportunity to test his claims on the merits.”). There are
exceptions to this standard, and a district court may deny a motion to amend for reasons “such as
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment or futility of the amendment.” Booth v. Maryland, 337 F. App’x.
301, 312 (4th Cir. 2009) (per curiam) (quoting Foman, 371 U.S. at 182).
Sorensen’s first Motion to Amend seeks to add evidence to demonstrate exhaustion of the
claims that I addressed in my previous Memorandum Opinion. Pl.’s Mot. Reconsideration 3–4.
That evidence, which he filed three days later with his Motion for Reconsideration, consists of
thirty-four pages of Inmate Grievance Office (“IGO”) decisions, which Sorensen asserts proves
that he exhausted his administrative remedies.

ECF No. 73-2.

Importantly, each of the

grievances that the decisions addressed were received by the IGO on October 6, 2015, almost six
months after Sorensen filed this suit. Id. Contrary to Sorensen’s assertions, the dates of these
documents in fact confirm that, at the time Sorensen filed the instant lawsuit, he had not

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exhausted his administrative remedies. Furthermore, these IGO decisions were referenced by
Defendants in exhibits they filed to support their first dispositive motion, see Neverdon Decl.¶¶
6, 8–16, ECF No. 57-7, and I addressed them in my previous Memorandum Opinion. Mem. Op.
7–8. Thus, granting the first Motion to Amend would be futile. See Perkins v. United States, 55
F.3d 910, 917 (4th Cir.1995) (stating an amendment is futile if it could not survive a motion to
dismiss for failure to state a claim). Accordingly, the Motion will be denied.
Sorensen’s other two Motions to Amend seek to add Allen Gang, Brian Hammons, J.
Hedrick, and Brandon Barnett as defendants. ECF Nos. 83, 85. Sorensen claims that Gang, who
is Chief of Security at JCI, is responsible for the overall safety and security of inmates. ECF No.
83-1. He alleges that Hammons, who is a case management supervisor at Western Correctional
Institution (“WCI”), was responsible for improperly transferring Sorensen from WCI to JCI on
January 16, 2013. Id. J. Hendrick is a case management specialist, who Sorensen blames for
placing a gang member in his cell. ECF No. 85-1. Brandon Barnett is a gang intelligence officer
at JCI, who Sorensen appears to implicate in the same decision.

Id.

These proposed

amendments relate to the claims that I previously dismissed, and neither of these individuals is
alleged to have had any responsibility for escorting Sorensen to his dental appointments, which
is the subject of the sole remaining claim. Accordingly, I will deny the Motions.
Motion for Reconsideration
Sorensen’s Motion for Reconsideration asks me to revisit my previous decision finding
the bulk of his claims unexhausted. Pl.’s Mot. Reconsideration 4.

Federal Rule of Civil

Procedure 54(b) provides that an interlocutory order “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); see also Fayetteville Inv'rs v. Commercial Builders, Inc., 936 F.2d 1462, 1469 (4th Cir.

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1991) (“An interlocutory order is subject to reconsideration at any time prior to the entry of a
final judgment.”). Reconsideration is appropriate where “(1) there has been an intervening
change in controlling law; (2) there is additional evidence that was not previously available; or
(3) the prior decision was based on clear error or would work manifest injustice.” Humane Soc’y
of United States v. Nat’l Union Fire Ins. Co. of Pittsburgh, No. DKC-13-1822, 2017 WL
1426007, at *3 (D. Md. Apr. 21, 2017) (quoting Akeva, LLC v. Adidas Am., Inc., 385 F. Supp. 2d
559, 565–66 (M.D.N.C. 2005)).
Sorensen fails to meet the exacting standard for reconsideration. He provides a number
of IGO decisions that were not part of the record at the time of my previous decision, ECF No.
73-2, and argues that they demonstrate that his non-dental claims were exhausted and should be
considered on the merits, Pl.’s Mot. Reconsideration 3–4.

But, as mentioned above, the

documents confirm rather than negate my conclusion that his other claims were not exhausted
because the decisions reveal that the IGO received Sorensen’s grievances well after he filed his
Complaint in this case. Accordingly, I will deny the Motion for Reconsideration.
Defendants’ Renewed Motion
The relevant facts concerning the claim that is the subject of Defendants’ renewed
Motion were set forth in my previous Memorandum Opinion:
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 of 2014, although the date is
unspecified. Compl. 18. As a result, he did not receive the dental care he felt he
needed. Id. Sorensen maintains that he did not refuse dental treatment after June
13, 2013. Id. 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. Id. 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
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“illegal no-escort policy” that prevented him from receiving dental care.
Sorensen Decl. 15, ECF No. 9-8.
Mem. Op. 8–9. The relevant standard of review is also outlined in my earlier Memorandum
Opinion, id. at 3–5, and is incorporated by reference.
In their renewed Motion, Defendants argue that Sorensen’s claims are barred by the
principle of collateral estoppel, also known as “issue preclusion.” Defs.’ Mem. 6–10. Because
an Administrative Law Judge previously determined in a quasi-judicial setting at which Sorensen
received a full opportunity to be heard that his dental issues did not amount to a serious medical
condition and that JCI corrections officials were not deliberately indifferent to his medical needs,
Sorensen may not litigate these issues again. I will therefore grant summary judgment to the
Defendants on Sorensen’s remaining claim.
In my previous Memorandum Opinion, I characterized Sorensen’s claim concerning his
dental care as an Eighth Amendment deliberate-indifference claim. As I explained,
“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 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 deliberate indifference claim has both an objective
component—that there objectively exists a serious medical condition and an
excessive risk to the inmate’s health and safety—and a subjective component—
that 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
must be an “objectively, sufficiently serious”).
Mem. Op. 9–10. Also of note, an Eighth Amendment violation based on delayed treatment
“only occurs . . . if the delay results in some substantial harm to the patient.”
Hamidullah, 281 F. App’x 159, 166 (4th Cir. 2008).

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Webb v.

As Defendants note, the two prongs of Sorensen’s deliberate-indifference claim were
already implicitly addressed during prior administrative proceedings.

On July 24, 2014,

Sorensen filed IGO Grievance No. 20141573. Sorensen v. Md. Div. of Corr., OAH Case No.
DPSC-IGO-002V-14-42645, at 1 (Md. Office Admin. Hrgs. Jan. 26, 2015), ECF No. 74-2. In
that Grievance, he complained, as he does in this proceeding, that he was improperly denied
dental treatment because he missed five scheduled appointments from August 2013 to May 2014
due JCI’s inability to provide an escort. Id. In a hearing conducted on December 19, 2014,
Sorensen testified on his own behalf. DOC representative George Allen and Sgt. B. Abato
testified on behalf of the DOC. Administrative Law Judge Tameika Lunn-Exinor determined
that Sorensen was unable to attend dental appointments on August 13, 2013; October 10, 2013;
November 25, 2013; and December 20, 2013, due to the unavailability of an escort. Id. at 3, 6.
But she also found that Sorensen attended or declined to go to scheduled appointments when
given the opportunity to do so. Id. at 3–4. The following is a chart that summarizes ALJ
Lunn-Exinor’s findings, with bolded dates indicating those on which Sorensen alleges in the
proceedings before this Court that unavailability of an escort prevented him from attending a
scheduled appointment:
Table 1

2/6/13
A
8/6/13
A
2/26/14
R

4/8/13
4/30/13 5/30/13
6/7/13
2/25/13
A
R
A
A
A
8/13/13
10/10/13
11/25/13
12/20/13
NE
NE
NE
NE
5/5/14
6/6/14
6/13/14
4/14/14
R
A*
A*
A

6/13/13
R
2/3/14
A*
9/11/14
R

A – Scheduled appointment Sorensen attended; R – Scheduled appointment Sorensen
refused to attend; NE – Scheduled appointment was unable to attend due to lack of escort;
* - Appointment scheduled in response to sick call request.

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The DOC acknowledged that Sorensen was not able to attend scheduled appointments between
August and December of 2013 due to staff shortages during that time period. Id. at 6. Based on
this evidence, ALJ Lunn-Exinor concluded that:
The evidence is clear that the Grievant [Sorensen] missed four dental
appointments between August 2013 and May 2014, due to a lack of escorts
available to take him to his appointments. The evidence is also clear that the
Grievant refused to go to two scheduled dental appointments during the same time
period. When the Grievant completed a sick call request for his emergency dental
problems, he was treated by the dentist the next day. In comparison, there were
times when his scheduled appointments that were not emergency appointments
were missed due to JCI staff problems but also due to the Grievant’s refusal to
attend.
Accordingly, if the Grievant’s dental needs consistently required
emergency care, the Grievant would never refuse to attend an appointment, but he
did. The Grievant was entitled to medical services and he received them in a
timely manner. There is no proof that there was any degradation in his dental
condition as a result of waiting for dental appointments. The Grievant has not
shown that the custodial staff at JCI deliberately prevented him from obtaining
medical treatment.
Id. at 6.
Under the doctrine of collateral estoppel, “once a court has decided an issue of fact or law
necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a
different cause of action involving a party to the first case.” Allen v. McCurry, 449 U.S. 90, 94
(1980). Collateral estoppel “bars the relitigation of specific issues that were actually determined
in a prior action,” Sartin v. Macik, 535 F.3d 284, 287 (4th Cir. 2008), so long as the “party
against whom [collateral estoppel] is asserted had a full and fair opportunity to litigate” the issue.
In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004) (quoting Sedlack v.
Braswell Servs., Grp., Inc., 134 F.3d 219, 225 (4th Cir. 1998)).

In addition to judicial

proceedings, Maryland law also dictates that administrative decisions may be given preclusive
effect where: “ ‘(1) the agency was acting in a quasi-judicial capacity’; (2) the issue as to which

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the defendant seeks to estop the plaintiff ‘was actually litigated before the agency’; and (3)
‘resolution of the issue was necessary to the agency’s decision.’ ”

Chew v. Green, No.

DKC-13-2115, 2014 WL 4384259, at *9 (D. Md. Sept. 2, 2014) (quoting Neifert v. Dept. of the
Envir., 910 A.2d 1100, 1112 (2006)).

And in Batts v. Lee, this Court held that IGO hearings

such as the one over which ALJ Lunn-Exinor presided can have preclusive effect. 949 F. Supp.
1229, 1234 (D. Md. 1996). Thus, any issues that ALJ Lunn-Exinor decided that were necessary
to her decision cannot be relitigated here.
ALJ Lunn-Exinor determined that it was not arbitrary or capricious for JCI to fail to
provide an escort to take Sorensen to four of nineteen dental appointments scheduled for him
over the course of 2013–14. Sorensen, OAH Case No. DPSC-IGO-002V-14-42645, at 7. In so
concluding, she reasoned that Sorensen’s medical condition was not serious because he refused
to attend five appointments over that span, which he would not have done if he were suffering
from a serious medical condition. See id. at 6. She also found “no proof that there was any
degradation in his dental condition as a result of waiting for dental appointments.” Id. Thus,
although ALJ Lunn-Exinor’s did not decide whether or not JCI violated Sorensen’s Eighth
Amendment rights, her conclusion that JCI did not act arbitrarily or capriciously depended upon
findings that Sorensen did not suffer from an serious medical condition and that delayed
treatment did not result in additional harm, meaning that it could not have amounted to deliberate
indifference. See Webb, 281 F. App’x at 166. Those conclusions are binding in this case,
meaning that Sorensen’s deliberate indifference claim fails.
Conclusion
ALJ Lunn-Exinor’s decision in an IGO hearing that JCI did not act arbitrarily or
capriciously by failing to provide an escort to take Sorensen to four dental appointments during

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2013–14 depended on findings that Sorensen did not suffer from a serious medical condition and
that the prison was not deliberately indifferent to his medical needs. Those conclusions are
entitled to preclusive effect in this Court. The Defendants are therefore entitled to summary
judgment on the sole remaining claim.
A separate Order shall be entered reflecting this Memorandum Opinion.

June 19, 2017
Date

/S/
Paul W. Grimm
United States District Judge

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