White v. Webb et al

Filing 39

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/17/2017. (kns, Deputy Clerk)(c/m 3/17/17)

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IN TilE UNITED STATES DISTRICT COURT i
FOR THE DISTRICT OF MARYLAND

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SOli/item Dh'isioll

NICHOLAS WHITE,

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Plaintiff,

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v.
WAYNE WEBB, et of.,

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Defendants.

Ch'il Action No. G,H1-16-()()3~

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MEMORANDUM OPINION
PlaintilTNicholas

White brings suit against Defendants

Wayne Webb. Ricky FoxwelL

and Michelle Jones for claims of gross negligence arising from conditions at the Brockhridge
Correctional
alternative.

Facility in Jessup. Maryland.
for Summary Judgment.

Pending is Defendants'

ECF No. 29. PlaintifThas

Motion to Dismiss. or in the

responded.

Eel' No. ~2: ECF No.

33: ECF No. 37. Upon review of the pleadings filed. the Court linds a hearing in this matter
unnecessary.
dispositive
I.

See Loc. R. 105.6 (D. Md. 2016). For the reasons stated below. Defendants'
motion will he granted.

BACKGROUND
A. Plaintiff's

Allegations

Plaintiff Nicholas White. an inmate currently confined at the Brockbridge
Facility ("BCF").

liled his Complaint naming as Defendants Commissioner

Wayne Webb. Warden of the Maryland Pre-Release
Administrator

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Correctional

of Corrections

System Ricky FoxwelL and Facility

Michelle Jones. lOCI' No. I at 1: lOCI' No. ~ at 1.1 Plaintiff alleged that Defendants

Pin citcs to documents filed on the Court's elcctronic filing systcm (CrvVECF) refer to the page Ilumbers generated

by thai system.

Webb and Foxwell wcrc "negligent in cnsuring that Brockbridgc Corrcction Facility. and all
othcr corrcction[al] institutions arc tobacco and smokc Il'cc:' Eel' No. I at 2.
PlaintilTciaims that Wcbb and Foxwell allow tobacco to entcr into thc corrcctional
facilitics by not enforcing Maryland laws which prohibit tobacco in in any correctional facility.
/d. Plaintiff states that the lailurc to enforce the law has causcd him scrious hcalth problems. Iii.

He indicates that hc suffcrs Irom "COPD (asthma)"' and has suffercd a scrics of cpisodcs duc to
tobacco smokc./d.

Plaintiffallcges

that it is Dclendants Wcbb and Foxwcll"s rcsponsibility as

Commissioncr of Corrections and the Wardcn of the Maryland Prc-Rclcasc Systcm to direct staff
to adhcre to and enforce the laws, regulations. and dircctives./d.

at 2-3. I'laintilTallcges that

Wcbb and Foxwell have been grossly ncgligent in tailing to providc a safc. hcalthy. and humane
cnvironmcnt. !d. at 3.
In Plaintiffs Amendcd Complaint. ECF NO.3 at I. he furthcr claims that thc dormitory at
BCF docs not have cmergency acccss to correctional start. in the evcnt of an emergcncy. Plaintiff
allcges that banging on a door or window is not direct access. and that correctional staff show no
urgency in responding. Id. Plaintiff states that therc havc becn many assaults in thc Princc
George's Dormitory and no one could call1llr help. /d. He indicates that surveillance cquipment
should bc installcd. Id. at 2. PlaintilTalso statcs that "Michelle Jones. thc facility administrator at
Brockbridge Corrcction Facility is includcd in thc ... damages [sought] ... in hcr role Illr not
providing a safe. hcalthlY I. and humane environmcnt:'
B, I)cfendants'

Id.

Response

Defendants cxplain that Plaintiff has heen housed at BCF sincc July 1.2015 in Kcnt
Dormitory and Princc Gcorgc's Dormitory. ECF No. 29.2 '11-2. Dormitorics arc fronted with

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plexiglass

which allows patrolling

orticers are assigned

correctional

staff'to see into the dormitory.

to each hallway where dormitories

are located, and make patrols into each

every hour on an irregular basis. !d. ,; 4. Additionally.

dormitory

searches are conducted
Possession

in order to combat tobacco possession

of tobacco is prohibited

inmate rule violation
days of disciplinary
segregation.

!d.

at l3CI'.ld. Sanctions

and use in the dormitories.

ofcontinement"

up to a loss of all diminution

remedy procedure

attest that Plaintiff has never tiled the mandatory
("ARP':)

at l3CI' to address his concerns

to the Maryland

Division of Correction

request for administrative

the matters alleged in the instant
ECI' 29-3 ~ 2. Defendants

with the Inmate Grievance

Office

tobacco at l3CI'. ECI' 29-4 ~ 3.
C. Pending

Non-Dispositive

t. Plaintiff's
Plaintiffs

"Motion

that an investigator

of his dormitory.ld.

Motions

Requests

for Discovery

for Court Investigator:'

lOCI' NO.1 O. shall be denied. Plaintiff

should obtain photographs

at J. lie states that he receivcd

of the burn marks on the tloor and walls

information

over the burn marks and strip the tloors. !d As such. Plaintiffasks
appointed

credits and 30

in the lacility.2 ECl' No. 29-2 ~ 7.

headquarters.

further testify that Plaintiff has ne\'er tiled a grievance

indicates

ofa tobacco-reiated

credits and 365 days of disciplinary

Plaintiff has also never tiled an appeal of an ARP concerning

concerning

Id. ~ 5.

'i 6.

Defendants

complaint

random bunk and locker

upon conviction

range Irom 30 days loss of "diminution
segregation

Id. ~ 3. Two

to "hinder the compromising

of evidence:'

that l3CI' was going to paint
that an investigator

be

!d. lie does not explain how this evidence

Plaintiff liIed I'\'o "Informal Inmate Complaint'. forms and one ARP request as c\hibilS on February 23. 2017.
ECF No. 38-2: ECF No. 38-3; ECF No. 38-4. Each form was lilled oul by the PlainlilT. however. there was no
signature confirming receipt orallY of the three forms.
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is necessary to advance his claim. Nor does Plaintiff explain why he eannot doeument this
inftmnation in another manner.
Plaintiffs "Motion to Issue Subpoena and Writ lor Material Witness:' ECF No. 18. shall
also be denied. PlaintifT states that he wishes to subpoena witness Richard Ilornberger. an inmate
confined at the BCF. Id. at I. He indieates that witness Ilornberger's notarized statement is
insurticient to substantiate Plaintiff's claim. Id. Plaintiff does not explain why the statcment is
insufficient. nor does Plaintiff explain the nature of the witness's testimony or how it is
necessary to his case. Id.
Finally. Plainti!rs "Motion to Subpoena Institutional Administrative Hearing Records
Involving Tobacco and Synthetic Marijuana:' ECF No. 20. shall he denied. Again. Plaintiff does
not explain how these records would aid in the prosecution of his claim. Moreover. discovery
may not commence before DeICndants have answered or otherwise responded to the Complaint.

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and then onlv aBeI' a schedulinl.( order has been issued bv this Court. See Loc. R. 104.4 (D. Md.
"

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20 I6).3 At the time Plainti ITliled each of the above requests. Defendants had not responded to
the Complaint and no scheduling order had been entered. Thus. PlaintilT was not entitled to
engage in discovery.
2. Plaintiffs Requests for .Judgment
Plaintiffs "Motion ftlr Summary Judgment:' ECF No. I J. shall be denied. Plaintiff
indieates that on Fehruary 19.20 I6. the Court directed the Finance Officer at BCF to provide
Plaintiff a copy of any documentation filed with the Court. Id at I. Plaintiff indicates that the
Finance Officer failed to provide him with any documentation. Ill. lie thereltlre asks that a
default judgment he entered against the Bel' Finance Officer. and that he be granted summary
.' "[DJiscovcry shollnol commence ... onlil a scheduling order is entered:" Loc. R. 104.4 (D. Md. 2016).

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judgment. !d. The Finance Otlicer is not a pU!1yto these procecdings. and as such. dcfault or
summary judgment is inappropriate.
Plaintiffs Motion for Default Judgment. ECF No. 17. shall also bc denied. Plaintiff
claims that Defendants were required to respond to his Complaint within 20 days of service and.
therefore. lailed to timely respond. !d. at I. Ilowever. prisoner complaints are subject to this
jurisdiction's

standing order which provides Defendants 60 days to tile a response. Inre Slate

!'risoner Liligalion. Misc. No. 00-308. Standing Order 2012-0 I (D. Md 2012): see a/so Miller \'.
McConne//{{. No. CV JKB-15-1349. 2015 WL 6727547. at *1. n.5 (D. Md. Nov. 2. 2015).
Additionally. DeICndants sought and were granted extensions of time to respond to the
Complaint. ECF No. 22: ECF No. 25: ECF No. 27. Their response was timely filed.
Plaintiffs second and third Motions lor Summary Judgment. ECF No. 26: ECF No. 31.
shall likewise be denied. PlaintifTstates that Defendants' requests for extension of time to lile a
response to the Complaint were an etlort to intentionally delay his case and he should therefore
be entitled to summary judgmcnt. ECF No. 26 ~ 2. Plaintiirs e1aims are without evidentiary
support and would nevertheless not entitle him to judgment as a matter of law.
3. I'laintifrs Motion to Appoint Counsel
As I'laintiffhas previously been advised. a federal district courtjudge's

power to appoint

counsel under 28 U.S.c. ~ 1915(e)( I ).4 is a discretionary onc. and may be considered where an
indigent claimant presents exceptional circumstances. Scc Cook
(4th Cir. 1975): scc a/so Branch

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BO/lndl. 518 F.2d 779. 780

Co/e. 686 F.2d 264. 266 (5th Cir. 1982). The question of

whether such circumstances exist in a particular case hinges on the characteristics ofthc claim
Under
counsel.

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* 1915(c)(

I). a Court or the United States may request

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all attorney

to represent any person

unable

to

afford

and the litigant. See Whisenant

\'. Yl/a/1/, 739 F,2d 160. 163 (4th Cir. 1984). Where a colorable
!d.

claim exists. but the litigant has no capacity to present it. counsel should be appointed.
Upon careful consideration
finds that he has demonstrated

of the motions and previous

the wherewithal

his claims himself or secure meaningful
Court are not unduly complicated,
warrant the appointment

II.

to either articulate

assistance

Therefore.

liIings by Plaintiff: the Court
the legal and factual basis of

in doing so. The issues pending before the

there arc no exceptional

of an attorney to represent

circumstances

that would

Plaintiff under ~ 191 5( e)( I ).

STANDARD OF REVIEW
A. Motion to Dismiss
Defendants

may ,.test the adequacy

Rule 12(b)( 6 )." l'relich

of a complaint

by way of a motion to dismiss under

\'. Met!. Res .. Inc .. 8 J3 F. Supp. 2d 654. 660 (D. Md. 201 I ) (citing

Ger/1/an ". Fox. 267 F. App'x 231. 233 (4th Cir. 2008)). Motions to dismiss for fllilure to state a
claim do "not resolve contests surrounding
defenses."

the fllcts. the merits of a claim. or the applicability

I'relich. 813 F, Supp. 2d at 660 (citing E,ilmrds

243 (4th Cir. 1999). To overcome
to state a plausible

\'. City oj"GohMwl'O.

a Rule 12(b)(6) motion. a complaint

claim for relief. Ashcl'(J(i

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178 F.3d 231,

must allege enough facts

I"hal. 556 U.S. 662. 678 (2009). A claim is

plausible

when ..the plaintiff pleads factual content that allows the Court to draw the reasonable

inference

that the defendant

In evaluating
allegations

is liable for the misconduct

the sufficiency

in the complaint

of the Plaintiffs

as true and construes

lil\"Orable to the Plaintiff. See Alhright

alleged."

Id.

claims, the Court accepts factual

the factual allegations

in the light most

\'. OIiI'er. 510 U.S. 266. 268 (1994); LO/1/heth ". 1M oj"

CO/1//1/'n oj"Dm'it!.l'On Cty.. 407 F.3d 266. 268 (4th Cir. 2005). However. the complaint

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of

must

contain more than "legal conclusions, elements of a cause of action, and bare assertions devoid
of further factual enhancement:'

Nemet Che\.,.olet. Ltd

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COl1SlImeraflilirs.com. Inc.. 591 FJd

250,255 (4th Cir. 2009). The court should not affirm a motion to dismiss lor Illilure to state a
claim for relief unless "it is clear that no relief could be granted under any set of facts that could
be proved consistent with the allegations:' GE In\'. Primte Placemenl Par1l1ersIII'. Parker, 247
F.3d 543, 548 (4th Cir. 2001) (citing 11..1.Illc. \'. Northwestern Bell Tel. Co.. 492 U.S. 229, 24950) (1989».
B. Motion for Summary .Jud~ment
Summary Judgment is governed by Fed. R. Civ. P. 56(a), which provides that "[IJhe court
shall grant summary judgment iI'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 tenns, this standard provides that the mere existence of
some alleged factual dispute between the parties will not de teat an
otherwise properly supported motion for summary judgment: the
requirement is that there be no xellilille issuc of material fact.
Allderson

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Liherty LoMy. IlIc.. 477 U. S. 242, 247-48 (1986) (emphasis in original).

"[Thel party opposing a properly supported motion f()r summary judgmcnt 'may not rcst
upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific fllcts
showing that there is a genuine issue for trial. ..' BOllchat \'. Baltimore Rm'ell.l'Foothall C1l1h.
Inc.. 346 FJd 514, 522 (4th Cir. 2003) (alteration in original) (quoting FecI. R. Civ. P. 56(e)).
The court should "view the evidence in the light most flworable to ... the nonmovant. and draw
all inferences in [his 1 favor without weighing the evidence or assessing the witnesses'
credibility:'

Denllis

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Coillmhia Colleton Med. Or .. Inc.. 290 F.3d 639. 645 (4th Cir. 20(2).
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The court must. however. also abidc by the "aflirmative obligation of the trial judge to prevent
lactually unsupported claims and defenses Irom proceeding to trial:' 8ollcilaf. 346 F.3d at 526
(internal quotation marks omitted) (quoting f)re,riff \'. I'roff. 999 F.2d 774. 778-79 (4th (ir.
1993). and citing Ce/ofex COI'l'. ". Cafreff. 477 U.S. 317. 323-24 (1986)).
In Anderson\". Liherf)' Lohhy. /nc .. 477 U.S. 242. 249 (1986). the Supreme

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explained that in considering a motion for summary judgment. the "judge's function is not
himself to weigh the evidence and determine the truth of the mailer but to determine whether
there is a genuine issue lor trial:' A dispute about a materiallaet

is genuine "ifthe evidence is

such that a reasonable jury could return a verdict lor the nonmoving party:' ld. at 248. Thus ... the
judge must ask himself not whether he thinks the evidence unmistakably lilVors one side or the
other but whether a litir-minded jury could return a verdict lor the [nonmoving partyj on the
evidence presented:' /tl. at 252.
The moving party bears the burden of showing that there is no gcnuinc issuc as to any
matcrial laet. No genuine issuc of material tact exists if thc nonmoving party lails to make a
suflieient showing on an essential c1cmcnt of his or her case as to which hc or she would havc
the burden of prooC See Ce/ofex Corp.

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Cafreff. 477 U.S. 317. 322-23 (1986). Thcrelore. on

those issues on which thc nonmoving party has the burden of proof: it is his or her responsibility
to contront the summary judgment motion with an allidavit or other similar cvidenee showing
that thcre is a genuinc issue tor trial.

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III.

ANALYSIS
A. Failure to Exhaust Administrative

Remcdies

Inmates are required to exhaust "such administrativc remedies as are availablc" bcfi.)rc
!iling an action. 42 U.S.C.

* 1997e(a). See Ross

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Blake. 136 S.C!. 1850. 1858 (2016) (An

inmate "must exhaust available remedies. but need not exhaust unavailable ones')
requirement is one of "proper exhaustion:'

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This

Ngo. 548 U.S. 8 J. 93 (2006). Thus. "an

administrative remedy is not considered to have been available if a prisoner. through no fault of
his own, was prevcnted from availing himself of it." l'v1ooreI', Bennelle, 517 FJd 717. 725 (4th
Cir. 2008): see also Ross, 136 S.C!. at 1858-59 (identifying three limited circumstances in which
an administrative remedy is "unavailable").
Exhaustion is mandatory, Ross. 136 S.C!. at 1857. .fones \'. Bock. 549 U.S. 199.219
(2007). A court may not excuse a failure to exhaust. Ross, 136 S. Ct. at 1856. citing Miller

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French. 530 U.S. 327. 337 (2000) (explaining .'[tJhe mandatory 'shall" ... normally creates an
obligation impervious to judicial discretion"), The purpose of exhaustion is to: I) 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 usefill record in the
event of litigation, .fones, 549 U.S. at 219. Although exhaustion is mandatory, an inmate's failure
to exhaust administrative remedies is an atlirmative defense . .fOiles, 549 U,S, at 21 J-12, 216.
Thus, Defendant bears the burden of proving that the inmate had remedies available to him of ,
which he failed to take advantage. See id: Moore. 517 F.3d at 725.
In Maryland. filing a grievance in writing with the Inmate Grievance Otlice ("I GO")
using an administrative remedy procedure form (OOARP
requcsC) is the !irst of three steps in the

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ARP process. See Md. Code Regs. 12.07.01.04(A). 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. 12.07.01.05(B). The
Warden reviews the ARP request and issues a response. See 12.07.01.04(13). If the request is
denied. a prisoner has 30 calendar days to lile an appeal with the Commissioner of Correction.
See J2.07.01.05(13).lfthe

initial appeal is denied. the prisoner has 30 days to tile a subsequent

appeal with the Inmate Grievance Office. See Md. Corr. Servs .. Code

* 10-206: Md. Code Regs.

12.07.01.04(13).
Here. Plainti ITfailed to exhaust his administrative remedies. Plaintiff attests that he tiled
two administrative remedy complaints regarding the usc of tobacco at BCF. one on September
27.2015 and another on November 5. 2015. but received no reply. lOCI'No. 37 at 2: lOCI'No.
38-2: lOCI'No. 38-3. lie does not indicate that he made anv efliJrt to lilrther pursue the ARP by
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filing an appeal to the commissioner or through the IGO. Id. Plaintiff generally states that ARP
forms were not available and that he was discouraged from tiling remedies. Ill. Despite his
contention that ARP forms were not available and that he was discouraged fi'om utilizing the
process. by his own admission. he began the ARP process on at least two occasions but failed to
complete the process. Thus. it is clear that Plaintiff Itliled to institute the ARP process as to his
general complaint regarding the salety of BCF and initiated but Itliled to complcte the process as
to his claims regarding the use of tobacco. As such. these claims are ul1exhausted and his
Complaint is subject to dismissal.
B. Supen'isory

Liabilil)'

To the extent that PlaintilT claims constitutional violations by Defendants. his Complaint

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must be dismissed because it is well-established that the doctrine of re.\jJondeal superior does not

* 1983 claims. See Love-Lane v. Marlin. 355 F.3d 766. 782 (4th Cir. 2004) (no
respondeat superior liability under * 1983). Liability of supervisory officials "is not based on

apply in

ordinary principles of respondeat superior. but rather is premised on 'a recognition that
supervisory indifference or tacit authorization of subordinates' misconduct may be a causative
factor in the constitutional injuries they inflict on those committed to their care .... Baynard v.
Ma/ane. 268 F.3d 228. 235 (4th Cir. 2001) (quoting S/akan \'. Porler. 737 F.2d 368. 372 (4th Cir.
1984)). Plaintiff has failed to point to any personal conduct by any of the named Defendants.
Plaintiffs effort to hold these Defendants liable based on their supervisory roles is unavailing.
Therefore. the Plaintiffs claims must be dismissed.
IV.

CONCLlJSION
For the foregoing reasons. Defendants' Motion to Dismiss. or in the alternative. Motion

for Summary Judgment. shall be granted. A separate Order I(lllows .

Date

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3U7/vJt7
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George J. Hazel
United States District Judgc

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