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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.' , ~ .. , I v L ~:: IN TilE UNITED STATES DISTRICT COURT i FOR THE DISTRICT OF MARYLAND , ,,' ...• Il , SOli/item Dh'isioll NICHOLAS WHITE, ~r . * Plaintiff, I * v. WAYNE WEBB, et of., * Defendants. Ch'il Action No. G,H1-16-()()3~ * * * * * * * * * * * * * * * * 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 I 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 2 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. • 2 3 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. - and then onlv aBeI' a schedulinl.( order has been issued bv this Court. See Loc. R. 104.4 (D. Md. " . 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). 4 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 1'. 1'. 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. 4 * 1915(c)( I). a Court or the United States may request 5 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 1'. 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 6 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 I'. 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 I'. 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 I'. Coillmhia Colleton Med. Or .. Inc.. 290 F.3d 639. 645 (4th Cir. 20(2). 7 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 (01ll1 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. I'. 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. 8 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 I', 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:' /Vooc(fiml I', 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 I', 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 9 ARP process. See Md. Code Regs. 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. The Warden reviews the ARP request and issues a response. See 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. 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 . . 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 10 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 . P/fL 3U7/vJt7 I I George J. Hazel United States District Judgc I1

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