Enow v. Warden

Filing 41

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 3/20/2017. (c/m 3/20/2017 ah4s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NDOKEY ENOW, # 435-845, #199085

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Plaintiff,
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v.
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Civil Action No. PWG-15-3177
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ROBERT L. GREEN,
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SHELFORD GILLIAM,
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ANTHONY MUDALUE,
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ROBERT ANDREWS,
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JOSHUA PHEABUS,
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DR. DONALD RHOADES, MD,
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DULPHINE NICOL,
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Defendants.
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MEMORANDUM OPINION
Plaintiff Ndokey Enow, who refers to himself in his court filings as “Dr.” and
“D.Sc./Ph.D.,” and evidently has a doctorate from Capitol College, has filed serial (unsuccessful)
actions in this Court relating to his conditions of confinement awaiting trial at Montgomery
County Correctional Facility (“MCCF”), and (following his conviction for solicitation to commit
first degree murder) while confined by the State of Maryland. His multiple filings have earned
him three strikes under the Prisoner Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), yet
this has done little to deter his repeated filings, which impose a significant burden on both the
Clerk’s office and the Court. In this action, Enow seeks to assert 42 U.S.C. § 1983 and related
state claims against a variety of correctional and medical defendants alleging deliberate
indifference to his personal safety, and serious medical conditions. Because he has failed to
exhaust his administrative remedies, his federal claims are dismissed with prejudice, and the
Court declines to exercise jurisdiction over the state claims. His Motion for Summary Judgment
will be denied as moot.

Background1
Enow, proceeding pro se, filed this lawsuit against the “Warden” on October 15, 2015,
and subsequently amended the Complaint to add Defendants Robert Green, Shelford Gilliam,
Anthony Mudalue, Robert Andrews, Joshua Pheabus, and Dulphine Nicol (collectively, the
“Montgomery County Defendants”), as well as Dr. Donald Rhoades, M.D. ECF Nos. 1, 7, 11,
14.2 The Complaint presents claims of deliberate indifference for failure to protect and failure to
provide adequate medical care during the time he was a pretrial detainee at MCCF, premised on
the Fourteenth Amendment of the United States Constitution and Maryland law. Am. Compl.;
Second Am. Compl. Enow filed exhibits and affidavits with his Complaint, and the Amended
Complaints are verified. Compl. 8, Pl.’s Aff. 1, ECF No. 11-4; Pl.’s Aff. 1, ECF No. 11-3; Am.
Compl. 14 ¶ 28 (affirming that the facts in the Amended Complaint are true to the best of his
knowledge); Second Am. Compl. 14 ¶ 29 (affirming that the facts in the Second Amended
Complaint are true to the best of his knowledge).
Enow was confined at MCCF from June 7, 2014 through March 4, 2015. Am. Compl. 5.
He claims that, from approximately November 2014 through February 2015, he was assaulted by

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When considering Defendants’ Motion to Dismiss, I accept the facts alleged in Enow’s
complaints as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011).
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Enow filed a Complaint, ECF No. 1, a Supplement, ECF No. 7, and two Amended Complaints,
Am. Compl., ECF No. 11; Second Am. Compl., ECF No. 14. Mindful that Enow is selfrepresented, I will accord his filings liberal construction and consider his allegations in all
iterations of his pleadings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)) (noting a pro se plaintiff is held to a “less stringent” standard
than a lawyer, and the court must liberally construe a pro se plaintiff’s complaint). Robert Green
is the warden at the Montgomery County Correctional Facility (“MCCF”). Shelford Gilliam is
assistant warden at the facility. Sergeant Robert Andrews, Lieutenant Anthony Mudalue, and
Joshua Pheabus are correctional officers at MCCF. Delphine Nicol is a nurse employed at
MCCF. Am. Compl. 6–7. On January 13, 2016, the County Attorney for Montgomery County,
Maryland accepted service on behalf of the Montgomery County Defendants. ECF No. 23.
Donald Rhoades, M.D. is not an employee of Montgomery County, Maryland. Id.
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other inmates. Id. at 7. On January 13, 2015, inmate Christopher Brown assaulted Enow.
Compl. 2. Enow faults Officers Pheabus and Andrews for failing to stop the attack immediately.
Second Am. Compl. 11, ¶ 23. He sustained permanent vision loss to one eye and injuries to his
eye, nose, and face, and he now suffers from dizziness and migraines. Id. at 6, ¶ 9.
Enow claims that, “despite the severity of the plaintiff’s injuries, and the excruciating
pain plaintiff suffered as a result of these injuries, only 400 mg of Aspirin and hydrogen peroxide
were administered,” without “any additional pain killer.” Id. at 9, ¶ 17. Additionally, Nicol
“told a colleague that plaintiff was a ‘crybaby.’” Id. at 9, ¶ 18. Enow alleges that Dr. Rhoades
“exercised deliberate indifference to plaintiff’s health following the attack by Christopher Brown
. . . by failing to provide adequate medical care care to the plaintiff,” and Defendants Rhoades
and Nicol “intentionally did not administer stitches to [a] deep cut in plaintiff’s mouth and
refused to fulfill any of plaintiff’s requests for follow-up care as recommended by Dr. Sandra
Cremers.” Id. at 12, ¶ 24.
Enow’s medical records (copies of which he filed with his pleadings, his Opposition to
Defendants’ Motion to Dismiss, and his Motion for Summary Judgment) show that, twenty
minutes after the January 13, 2015 incident, a nurse at the Montgomery County Department of
Correction and Rehabilitation determined that sutures were not needed; Enow denied
experiencing nausea, dizziness, or vomiting; and his neurological signs were within normal
range. The nurse recommended that his vital signs be rechecked an hour later and that he see a
physician the next morning. Med. Recs., ECF No. 1-2, at 23; Med. Recs., ECF No. 11-3, at 31;
Pl.’s Opp’n Ex. 2, ECF No. 32-2; Pl.’s Mot. Sum. J. Ex. 1, at 12, ECF No. 31-5. Dr. Sandra
Cremers, M.D., an ophthalmologist, saw Enow on January 15, 2015 for the injury to his eye.
Med. Recs., ECF No. 11-3, at 32–36. She recommended a follow-up visit in two weeks. Id.

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The medical records that Enow attached to his filings do not include a record from a follow-up
visit. Enow transferred out of MCCF on March 4, 2015. The earliest request for follow-up care
that he included with his medical records was from March 12, 2015, after he had left MCCF. Id.
at 40. He received an eye exam on April 8, 2015. Id. at 39, 42.
Enow was charged with, but found not guilty of, several institutional rule violations
stemming from the incident with Brown. Notice of Infraction, ECF No. 1-2, at 31; Inmate
Adjustment Disposition, ECF No. 1-2, at 28. Four days later, he filed a grievance form, asking
the Assistant Warden to file criminal charges against Brown. Jan. 19, 2015 Inmate Grievance
Form, ECF No. 1-2, at 34. Notably, on the grievance form, he did not complain that Defendants
failed to protect him or that he received inadequate medical care. See id. Thereafter, a criminal
case was brought against Brown. Notification, ECF No. 1-2, at 33.
After Brown assaulted him, Enow “complain[ed] to . . . Officer John Doe of assaults and
threats of extreme violence from Christopher Brown’s gang members” who were trying to
dissuade Enow from testifying against Brown for assaulting him. Second Am. Compl. 4. As
best I can discern, although Enow does not state explicitly, he asked the unidentified officer at
that time to transfer him to protective custody.

See id.

But, instead of placing him “in

administrative custody pending approval into protective custody,” the unidentified officer placed
him in disciplinary segregation, where McNair Demonte, a “cellmate with affiliations in
Christopher Brown’s gang,” was housed. Id. It appears (although Enow again fails to state
explicitly) that he then asked Lieutenant Mudalue to transfer him or Demonte to a difference cell
on the same housing unit. See id. at 11, ¶ 22. He claims that “defendant L[i]eutenant Mudalu[e]
exercised deliberate indifference to the plaintiff’s health, safety and security by refusing for no

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reason to authorize a cell transfer of either plaintiff or cell inmate, McNair Demonte to available
cell in housing unit N1-1 [disciplinary segregation].” Id.
After the unnamed officer placed Enow in disciplinary segregation and Lieutenant
Mudalue refused to transfer his or Demonte’s cell, Demonte attacked him and Enow sustained
injuries. Id. at 4. Then, an unidentified “jail guard . . . deliberately denied plaintiff access to
medical treatment after plaintiff complain[ed] of dizziness after assault by fellow inmate,
McNair Demonte.” Id. at 7–8, ¶ 13.
He claims that he complained to the unidentified officer of threats on February 2, 2015
and was transferred to disciplinary segregation that day, yet he claims that Demonte’s assault
occurred on January 29, 2015 or February 1, 2015. Id. at 4; Am. Compl. 8, ¶ 15; Pl.’s Opp’n 3,
ECF No. 32. And, the exhibits Enow attached show that he already was housed on N1-1
(disciplinary segregation) when he was charged with, and found guilty of, additional infractions
on February 1, 2015. Inmate Adjustment Disposition, ECF No. 11-3, at 30. Mindful that Enow
is proceeding without counsel, I construe his pleadings to allege that Demonte assaulted him in
disciplinary segregation after he was transferred there, rather than to protective custody as he
requested, as no other reading makes sense. Although the exact dates are unclear, what is clear is
that Enow felt threatened, he voiced his fears and asked to be moved for his own safety, and he
was moved, but to a unit where he was assaulted for the second time in a month.
It also is evident that he filed a grievance on February 2, 2015 (after Demonte attacked
him), claiming that he “was placed in a wrong pod on the 30th of January, 2015,” asking “to be
put into protective custody,” and asserting that what he previously sought was a transfer to
protective custody. Feb. 2, 2015 Inmate Grievance Form, ECF No. 11-3, at 35 (“I am grieving
because I was placed in a wrong pod on the 30th of January, 2015 because I came here but for

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reclassification. I would like to be put into protective custody. That is the reason I requested for
re-classification.”); see Second Am. Compl. 4. He did not mention Demonte’s attack or that
guards denied his access to medical treatment. After he filed that grievance, he was placed in
protective custody. Am. Compl. 5.
Dissatisfied with his treatment, Enow filed this suit, seeking $500 million in damages and
“an Order declaring that the Defendants have acted in violation of 42 U.S.C. Section 1983.”
Second Am. Compl. 14. The Montgomery County Defendants have moved to dismiss Enow’s
Complaint, ECF No. 29, and the parties fully briefed the motion, ECF Nos. 29-2, 32, 34, 34-1.
Enow also filed a Motion for Summary Judgment, ECF No. 31, which the parties fully briefed,
ECF Nos. 33, 33-1, 37, 38. Having reviewed the filings, including the supporting exhibits, I find
that a hearing is unnecessary. See Loc. R. 105.6.
Standard of Review
Defendants seek dismissal of this case and oppose Enow’s Motion for Summary
Judgment on several grounds including failure to exhaust administrative remedies and failure to
state a claim under 42 U.S.C. § 1983. Enow’s Complaint is subject to dismissal if it “fail[s] to
state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief,”
Fed. R. Civ. P. 8(a)(2), and must state “a plausible claim for relief,” Ashcroft v. Iqbal, 556 U.S.
662, 678–79 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. Rule 12(b)(6)’s purpose “is to test the sufficiency of a
complaint and not to resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D.

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Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006)). If an affirmative defense “clearly appears on the face of the complaint,” however, the
Court may rule on that defense when considering a motion to dismiss. Kalos v. Centennial Sur.
Assocs., No. CCB-12-1532, 2012 WL 6210117, at *2 (D. Md. Dec. 12, 2012) (quoting Andrews
v. Daw, 201 F.3d 521, 524 n.1 (4th Cir. 2000) (citation and quotation marks omitted)).
Although pleadings of self-represented litigants must be accorded liberal construction,
see Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), liberal construction does not mean a
court can ignore a clear failure to allege facts that set forth a cognizable claim. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
Discussion
The Montgomery County Defendants assert that Enow’s federal claims have not been
properly presented through the administrative remedy procedure and must be dismissed pursuant
to 42 U.S.C. § 1997e. The Prisoner Litigation Reform Act (“PLRA”) provides, in pertinent part
that “[n]o action shall be brought with respect to prison conditions under section 1983 . . . , 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). 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, or diversionary
program.” 42 U.S.C. § 1997e(h). Thus, the PLRA applies to Enow as a pretrial detainee. See id.
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).

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Exhaustion is mandatory and therefore, a court ordinarily may not excuse a failure to
exhaust. Ross v. Blake, --- U.S. ---, 136 S. Ct. 1850, 1856–57 (2016) (citing Miller v. French,
530 U.S. 327, 337 (2000) (explaining that “[t]he mandatory ‘shall’. . . normally creates an
obligation impervious to judicial discretion”)); see Jones v. Bock, 549 U.S. 199, 220 (2007).
And, typically, 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). Yet, an
inmate need only exhaust “available” remedies. 42 U.S.C. § 1997e(a). In Ross, the Supreme
Court reiterated that “[a] prisoner need not exhaust remedies if they are not ‘available.’” 136 S.
Ct. at 1855. The Fourth Circuit addressed the meaning of “available” remedies in Moore, 517 F.
3d at 725, stating:
[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. See Aquilar-Avellaveda v. Terrell, 478 F. 3d 1223, 1225 (10th Cir. 2007);
Kaba v. Stepp, 458 F. 3d 678, 684 (7th Cir. 2006). Conversely, a prisoner does
not exhaust all available remedies simply by failing to follow the required
steps so that remedies that once were available to him no longer are. See
Woodford v. Ngo, 548 U.S. 81, 89 (2006). Rather, to be entitled to bring suit
in federal court, a prisoner must have utilized all available remedies “in
accordance with the applicable procedural rules,” so that prison officials have
been given an opportunity to address the claims administratively. Id. at 87.
Having done that, a prisoner has exhausted his available remedies, even if
prison employees do not respond. See Dole v. Chandler, 438 F.3d 804, 809
(7th Cir. 2006).
An administrative remedy is available if it is “‘capable of use’ to obtain ‘some relief for
the action complained of.’” Ross, 136 S. Ct. at 1859 (quoting Booth v. Churner, 532 U.S. 731,
735 (2001)). Thus, an inmate must complete the prison’s internal appeals process, if possible,
before bringing suit. See Chase v. Peay, 286 F. Supp. 2d 523, 529–30 (D. Md. 2003). As a
pretrial detainee, Enow is subject to the strict requirements of the exhaustion provisions. See

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Porter, 534 U.S. at 528 (no distinction is made with respect to exhaustion requirement between
suits alleging unconstitutional conditions and suits alleging unconstitutional conduct).
The Supreme Court has outlined three circumstances when an administrative remedy is
unavailable and an inmate’s duty to exhaust available remedies “does not come into play.” Ross,
136 S. Ct. at 1859. These are: (1) when the remedy operates as a “simple dead end-with officers
unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when the
administrative scheme is so “opaque” as to be “practically speaking, incapable of use”; and (3)
when prison administrators “thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Id. at 1859-60.
Enow claims that Defendants failed to protect him in two instances: first, Officers
Pheabus and Andrews failed to stop Brown’s attack promptly, and second, Officer Mudalue
failed to grant his transfer request to prevent Demonte’s attack. And, he claims that Defendants
provided inadequate medical care after Brown’s attack and unidentified “guards” blocked his
access to medical care after Demonte’s attack. To show that he exhausted his administrative
remedies with regard to these claims, Enow presents two grievances that he filed.
On January 19, 2015, he filed a grievance form, asking that charges be filed against
Brown. Jan. 19, 2015 Inmate Grievance Form, ECF No. 1-2, at 34 (“Deputy Warden Shelford
Gillia[m], please press criminal charges against Christopher Brown for assaulting me. Please see
incident report No. 12522. As a result, I sustained multiple injuries on my face. Please contact
the medical unit for photographs and medical examination reports. Currently, I am completely
blind on my right eye due to the impact of the close[d] fist into my right eye and my face.”). He
received the relief he requested, as criminal charges were brought against Brown.

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Significantly, on that form, he did not complain that Defendants failed to protect him or
failed to provide adequate medical care. See id. He has not identified any other grievance form
that he filed with regard to Defendants’ deliberate indifference toward his health and safety
during and after Brown’s attack. Nor has he alleged that this remedy was unavailable to him
after Brown’s attack.

Clearly, he cannot make such an allegation, as he did pursue his

administrative remedies following Brown’s attack; he simply raised a different grievance.
One purpose of the PLRA is to “allow[] a prison to address complaints about the program
it administers before being subjected to suit,” Jones v. Bock, 549 U.S. 199, 219 (2007). The
January 19, 2015 grievance form did not alert the prison that Enow was dissatisfied with “the
program it administers,” in terms of safety and medical care, as opposed to upset with another
inmate’s actions. See id. Indeed, based on the grievance form and subsequent events, it would
appear that the prison met Enow’s needs—for Brown to be criminally charged. Consequently,
administrative remedies were available to Enow, and he availed himself of them for another
purpose following Brown’s attack, but he nonetheless failed to exhausted them with regard to his
deliberate indifference claims insofar as they are based on Defendants’ actions with regard to
Brown’s attack. See id.; Ross, 136 S. Ct. at 1856–59.
Enow filed another grievance on February 2, 2015, asserting: “I am grieving because I
was placed in a wrong pod on the 30th of January, 2015 because I came here but for
reclassification. I would like to be put into protective custody. That is the reason I requested for
re-classification.” Feb. 2, 2015 Inmate Grievance Form, ECF No. 11-3, at 35. Thus, he filed a
grievance in which he complained that his previous request to be reclassified was misconstrued
and he did not receive the housing assignment he sought (protective custody). Although he
alleges elsewhere in his pleadings that “the jail guards . . . purposefully and recklessly failed to

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provide plaintiff with grievance form - DCA-512 at certain incidence [sic] to prevent plaintiff
from documenting and notifying the jail administration on acts of misconduct committed by
correctional staff on plaintiff,” Second Am. Compl. 7–8, ¶ 13, it is clear that he had access to,
and availed himself of, the grievance process after Defendants allegedly were deliberately
indifferent to his safety and failed to place him in protective custody.
Yet, in his February 2, 2015 grievance, he simply asked to be placed in protective
custody. He did not state who misconstrued his previous request or how he made that request.
Nor did he complain of his lack of access to medical care following Demonte’s attack. Even if
such details were not necessary for the prison to address his complaint, more is needed for the
prison to know that simply moving him to protective custody upon receipt of the grievance was
not an adequate remedy for Enow’s perceived wrongs. The grievance did not enable the prison
to address Enow’s pending claims before he filed this suit. See Jones, 549 U.S. at 219.

It is

immaterial whether, as he claims, he “never received [an] official disposition copy of the
grievance form,” Second Am. Compl. 4, because disposition of the February 2, 2015 grievance
would not exhaust his remedies regarding his deliberate indifference claims. Therefore, Enow’s
failure to exhaust his administrative remedies on these issues bars his deliberate indifference
claim with regard to Demonte’s attack. See Moore, 517 F. 3d at 725; 42 U.S.C. § 1997e(a).3
Conclusion
In a separate Order that follows, the Montgomery County Defendants’ Motion to
Dismiss, ECF No. 29, will be GRANTED as to all claims against them. The claims against Dr.
Rhoades will be dismissed as well, on the same grounds. Plaintiff’s Motion for Summary

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Because I dismiss Enow’s federal claims as unexhausted, I need not address the other grounds
for dismissal that Defendants raise, such as qualified immunity.
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Judgment, ECF No. 31, will be DENIED as moot. This Court declines to exercise supplemental
jurisdiction over Enow’s claims under Maryland law. See 28 U.S.C. § 1367(c)(3).

March 20, 2017
Date

/S/
Paul W. Grimm
United States District Judge

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