Burris v. Hoffman et al
Filing
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MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/21/2015. (bus, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DONTE BURRIS, #434043
Plaintiff,
v.
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OFC. D. HOFFMAN
OFC. M. KIBLER
OFC. T. FOX
LT. K. COVINGTON
Defendants.
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CIVIL ACTION NO. DKC-15-3773
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MEMORANDUM OPINION
On December 10, 2015, the court received for filing this 42 U.S.C. § 1983 Complaint
filed by Western Correctional Institution (“WCI”) inmate Donte Burris, dated December 3, 2015.
Burris complains that subsequent to a cell search on November 4, 2015, he was hit in the face,
kicked in the posterior, and pushed and kicked to the floor by three Maryland Correctional
Institution correctional officers. ECF No. 1 at p. 3. Burris states that he is “still waiting” on his
administrative remedy procedure grievance. Id. at p. 2. He seeks $775,000.00 in damages and
“removal” from the Maryland Division of Corrections. Burris has filed a motion for leave to
proceed in forma pauperis and because he appears indigent, his motion shall be granted. His
Complaint, written within thirty days after the alleged incident, shall be dismissed without
prejudice for the failure to exhaust administrative remedies.
28 U.S.C. § 1915A provides for screening of any Complaint “in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity.” See
McLean v. United States, 566 F.3d 391, 394 (4th Cir. 2009); 28 U.S.C. § 1915(a). Before
permitting the case to move forward or requiring a response from the Defendants, “the court
shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted;
or (2) seeks monetary relief from a defendant who is immune from such relief.” See 28 U.S.C. §
1915A(b); See also Williamson v. Angelone, 197 F. Supp.2d 476, 478 (E.D. Va. 2001); see also
McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). The screening is necessary to
determine whether the Defendants should be required to respond to the action.
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,
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).
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
appeal with the Commissioner of Correction. COMAR 12.07.01.05C; Blake v. Ross, 787 F.3d
693, 697 (4th Cir. 2015). If the appeal is denied, the prisoner has 30 days to file a grievance with
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the Inmate Grievance Office (“IGO”). See C.S. §§ 10-206, 10-210; COMAR 12 07.01.03;
COMAR 12.07.01.05B. 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).
Here, it is uncontroverted that Burris filed this Complaint within thirty days of the alleged
assault. Notably, he claims that he is still waiting on his administrative remedy. Therefore, he
has, in effect, conceded that he has not satisfied the administrative exhaustion requirement under the
PLRA. See Chase v. Peay, 286 F.Supp.2d 523, 528 (D. Md. 2003).
The PLRA’s exhaustion requirement 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, 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);
Booth v. Churner, 532 U.S. 731, 735 (2001) (affirming dismissal of prisoner’s claim for failure to
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exhaust where he “never sought intermediate or full administrative review after prison authority
denied 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).
The court may, on its own raise the affirmative defense issue of Burris’ exhaustion of
administrative remedies under the PLRA. See Anderson v. XYZ Correctional Health Service,
Inc., 407 F.3d 674, 681-82 (4th Cir. 2005). It may not, however, dismiss the case for the failure
to exhaust without first giving the prisoner the opportunity to address the issue unless such
failure is apparent from the face of the complaint. Id. (emphasis added).
Here it is uncontroverted that Burris wrote this Complaint within thirty days of the
alleged incident. He admits that his administrative remedy remains pending. Thus, it is readily
apparent from the face of the Complaint that he has not exhausted his administrative remedies as to
the officers’ conduct and thus he has failed to state a claim. Accordingly, sua sponte dismissal of the
Complaint is appropriate. Anderson, 407 F.3d at 682. The suit is premature.
Burris should allow the grievance process to run its course before seeking a Complaint
for damages. His Complaint shall be dismissed without prejudice. A separate Order follows.
Date: December 21, 2015
__________/s/______________
DEBORAH K. CHASANOW
United States District Judge
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