Burroughs v. Green

Filing 24

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 1/19/2017. (c/m 1/19/2017 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAMEIUM DWIGHT BURROUGHS,

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Plaintiff,

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v.

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WARDEN KATHLEEN GREEN,

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Defendant.

Civil Action No. PWG-16-518

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MEMORANDUM OPINION

Defendant Warden Kathleen Green moved to dismiss or for summary judgment in the
above-captioned civil rights case. ECF No. 18. Plaintiff opposes the motion. ECF No. 21. No
hearing is required for disposition of the matters pending before the Court. See Local Rule 105.6
(D. Md. 2016). Because Plaintiff failed to properly exhaust his administrative remedies before
filing this suit, Defendant’s motion, construed as a Motion for Summary Judgment, shall be
granted.
Background
Plaintiff Dameium Dwight Burroughs is an inmate committed to the custody of the
Maryland Division of Correction and confined in Eastern Correctional Institution (ECI) in
Westover, Maryland. He alleges that on January 16, 2016, he was sleeping in his cell when he
woke to the sound of someone pulling on the cell door. Compl. 8, ECF No. 1. Burroughs states
that the door came open and several inmates ran into his cell and stabbed him twice in the head
and “several times” in his side and back. Id. During the assault, Burroughs claims his television
and his new state-issued clothes were stolen. Id.

Burroughs alleges that he had informed correctional officers prior to this incident that it
was possible to pull on the cell doors open without a key. Id. He claims that he had previously
requested that the door be repaired. Id.
Burroughs states that on the morning following the assault, members of the Black
Guerilla Family (BGF) saw that he was still on the tier and he “had to fight again.” Id.
As relief Burroughs seeks compensation in the amount of $1,500 and a transfer away
from ECI to ensure his safety. Id.
Burroughs supplemented the Complaint twice. First Supp. Compl., ECF No. 8; Second
Supp. Compl., ECF No. 12. In the first supplemental filing, Burroughs states that his legal
papers, which included copies of request slips to have his cell door repaired, were taken from his
cell during a search ordered by Warden Green. First Supp. Compl. He further states that he had
a color television and a PlayStation 2 stolen from his cell. Id. He admits he did not have
“paperwork” for the PlayStation 2. Id.
In his second supplemental filing, Burroughs filed a copy of a medical record dated
January 17, 2016, which indicated that he was seen by Kimberly Malin, RN for “3 superficial
abrasions on left abdomen and side” and “one puncture wound on head.” Second Supp. Compl.
Attach. 1, at 1, ECF No. 12-2.1 Malin observed that the wounds were healing and there was no
evidence of infection. Id. In addition, Burroughs filed a copy of an appeal of the Department of
Correction’s response to an administrative complaint. Second Supp. Compl. Attach. 1, at 3. The
appeal concerns the January 16th assault as well as the issue with the cell doors failing to lock.
Id.

1

Page numbers for citations to the attachments to the Second Supplemental Complaint refer to
the CM/ECF page numbers.
2

Defendant Green asserts, in response to the Complaint, that Burroughs did not properly
exhaust administrative remedies and that she is entitled to qualified immunity. Def.’s Mem.,
ECF No. 18. In addition, Green provides a sworn declaration and verified records that establish
that a PlayStation and PlayStation controller on were confiscated from Burroughs on September
21, 2014 and returned to the rightful owner, another inmate. Switalski Decl. ¶ 4, Def.’s Mem.
Ex. 1, at 1–3, ECF No. 18-2; Notice of Confiscation, Mot. Dismiss Ex. 1, at 55. At that time,
Burroughs was given television on loan. Switalski Decl. ¶ 4; see also Notice of Registration,
Def.’s Mem. Ex. 1, at 56. Personal property inventory sheets dated January 19, 2015 and
January 17, 2016 documenting Burroughs’s property do not reflect that Burroughs owned a
television or a PlayStation 2. Switalski Decl. ¶ 4; Jan. 19, 2015 Personal Property Inventory,
Def.’s Mem. Ex. 1, at 57; Jan 17, 2016 Personal Property Inventory, Def.’s Mem Ex. 1, at 58.
With regard to Cornelius Kilson, the only inmate identified by Burroughs as being
responsible for the assault, no records were found to show that inmate presented a threat to
Burroughs prior to January 16, 2016. Switalski Decl. Burroughs had no other listed enemies
who were housed at ECI prior to the assault. Id. On January 27, 2016, an inmate alert was
added to Burroughs’s base file records indicating that Kilson presented a threat to his safety. Id.
Because Burroughs was housed in general population at the time of his assault, no
surveillance video of the assault was captured as video surveillance equipment is not present on
general population units at ECI. Switalski Decl. ¶ 3. On January 16, 2016, at the time of the
assault on Burroughs, the housing tier log reflects that officers “were conducting rounds to
monitor security.” Id. ¶ 6. There is no entry in the log indicating that an inmate-on-inmate
assault (denoted as a 10-10) occurred. Id.

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The following morning, a log entry indicates there was an altercation between Burroughs
and Kilson that occurred when correctional officers were electronically opening cell doors on the
tier to allow inmates to go to breakfast. Switalski Decl. ¶ 5. The notice of infraction issued to
Burroughs and written by Officer D. Schweitzer indicates that Burroughs ran across the tier to
Kilson’s cell (C-31) when he was released from his cell (C-46).

Notice of Inmate Rule

Violation, Def.’s Mem. Ex. 1, at 18. Burroughs went into Kilson’s cell, throwing punches, and
both men came out of the cell engaged in a fist fight. Id. Because both men continued to fight
after ordered to stop, offers used pepper spray to break up the fight. Id. A use of force and
serious incident report were later prepared as a result of the incident. Use of Force Report,
Def.’s Mem. Ex. 1, at 23–53.
On January 18, 2016, Burroughs was interviewed by Lieutenant Tanicka White, who
investigated the use of force. Id. at 24. Burroughs told White that on January 16, 2016, during
the 3–11 shift and while inmate sanitation workers were out of their cells before the shift change,
“a sanitation worker walked down C tier and approached 5 different cell doors and yanked real
hard and pulled them opened [sic] while they were secured and/or deadlocked.” Id. After the
inmates in those five cells were released, one of them yanked on Burroughs’s door and they
rushed into his cell and beat and stabbed him. Id. Burroughs also told White that while he was
being assaulted another inmate stole his television. Id. After the assault, the inmates fled, and
Burroughs closed his door and cleaned his wounds. Id. He stated that the only one of his
assailants he recognized was Kilson because he was the one holding the door. Id.
Burroughs admitted that once his cell door was opened for breakfast, he rushed straight to
Kilson’s cell door and as soon as Kilson’s door was opened they began to fight. Id. He further
admitted that several direct orders were given for them to stop fighting, which were ignored, and

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told White that “this was not over because they stabbed him.” Id. Kilson was also interviewed
and denied knowing the basis for Burroughs’s assault. Id. at 24–25.
Lieutenant White further notes in her report that the “suspect doors” were checked and it
was confirmed that they could be opened despite being locked. Id. at 25. Lieutenant White
prepared a separate report to maintenance for the doors to be repaired “as a matter of urgency.”
Id. A search of the records maintained in Green’s office yielded no complaints requesting
repairs to Burroughs’s cell door filed prior to January 16, 2016. Switalski Decl. ¶ 8. In his
declaration under oath, Correctional Maintenance Office Manager Kenny Glasgow reports that
no work order requests were received for repairs to any of the doors on cells to which Burroughs
was assigned from May 20, 2014 through January 16, 2016. Glasgow Decl. ¶ 3, Def.’s Mem.
Ex. 7, ECF No. 18-8. Glasgow states, however, there was a work order (#45150) dated February
15, 2015, reporting that an unspecified cell door on C tier was not securing properly and the
repair was completed on February 17, 2015. Id. ¶ 4. Glasgow further indicates that work orders
are submitted by staff when a repair is needed. Id. ¶ 5. A copy of Lieutenant White’s work
order is not included in the records submitted.
Burroughs filed an administrative complaint known as an ARP on February 2, 2016,
concerning the previous month’s assault. Burroughs ARP, Def.’s Mem. Ex. 2, at 4–5, ECF No.
18-3. His complaint reads as follows:
On 1/16/16 I was in my cell laying down when my cell door was opened and
several inmates came in my cell. I was stabbed a couple of times (see p.c. and
medical file). My RCA color TV was taken etc. My wounds was minor. So at
breakfast time I came out and defended myself against my attackers and I was
placed on seg. for it and received 90 days and lost of credits of 120 days. If
officer was on his post then this could have been avoided. Now I would like to
start the process of filing a law suit. This is not the first time an inmate was
assaulted due to faulty cell doors and correctional officers not on there post.
Just last year down H.U. 7 an inmate on [illegible] tier was sleep when he was
attacked and almost lost his life. This institution have people who are not gang
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members on gang tiers and this is the stuff that happens. Inmates who are not
gang members or are part of a different gang are targets for there stuff taken or
worst assaulted. this is an ongoing problem and the Warden and H.U. Lt. are
not addressing these issues, instead forcing inmates to pick up arms and defend
themselves. Because traffic or whomever sends the inmate right back to the
same situation. I’m going to keep defending myself until this administration
solve these problems. I filed an informal complaint and have yet to receive a
response. I would like a copy of the pictures taken of my torso wounds and the
medical report so I can proceed with civil matters and permission to speak to
the press. I don’t know the officer name that the tier that night I just know I
was in my cell sleep and it was at sanitation time so it was about 10:00 p.m.
Id. The ARP was “dismissed for procedural reasons” because “[i]nmates may not seek to resolve
a complaint through the ARP for Inmate disciplinary procedures and decisions.” Id. at 4.
Kristina Donnelly, Executive Assistant to the Department of Public Safety and
Correctional Service (DPSCS)’s Executive Director for Field Support Services, states in her
declaration under oath that Burroughs filed a headquarters appeal of an administrative remedy
response on February 29, 2016. Donnelly Decl. ¶ 2, Def.’s Mem. Ex. 3, ECF No. 18-4. The
appeal was reviewed by Correctional Case Manager Specialist II Chantell Session on the day it
was received. Id. ¶ 3. Burroughs did not include with his appeal a copy of his ARP with the
warden’s response, as required by the appeal procedures. Id. ¶¶ 5–6. Although it was apparently
assumed that Burroughs was filing an “Appeal of No Response from Warden,” Session “was
unable to determine . . . Burroughs’ intent” because he had not included “a copy of the original
Request for Administrative Remedy signed by a correctional officer suggesting the lack of a
response from the Warden.” Id. ¶¶ 4, 6. Session sent Burroughs a memorandum indicating that
his appeal would not be processed because his intent in filing it could not be determined. Id. ¶ 7;
Memorandum from Chantell Session, Exec. Assistant to Exec. Dir. Field Support Servs., Dept.
Pub. Safety & Corr. Servs., to Damerum Burroughs 412320 (Feb. 29, 2016), Donnelly Decl.

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Decl. Attach. 1, Def.’s Mem. Ex. 3, at 3. No further attempts to appeal the ARP were submitted
by Burroughs. Donnelly Decl. ¶ 8.
A copy of the appeal is not submitted by Defendant, but was provided by Burroughs.
Burroughs ARP Appeal, Second Supp. Compl. Attach. 1, at 3. Burroughs indicated on the form
that there was no response from the warden. Id. The substance of the appeal mirrors the content
of the ARP he filed at the institutional level and again requests copies of pictures and medical
records so that Burroughs could proceed with a civil suit. Id. The appeal neither discussed the
response’s stated reason for dismissal nor provided any support for Burroughs’s contention that
his ARP received no response. See id.
Standard of Review
Defendant’s dispositive submission will be treated as a Motion for Summary Judgment
under Fed. R. Civ. P. 56 because materials outside the original pleadings have been considered.
See Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). Summary judgment is governed
by Fed. R. Civ. P. 56(a) which provides that:
The court shall grant summary judgment if 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 terms, this standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
“A party opposing a properly supported motion for summary judgment ‘may not rest
upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts
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showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)).
The court should “view the evidence in the light most favorable to . . . the nonmovant, and draw
all inferences in her favor without weighing the evidence or assessing the witness’ credibility.”
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644–45 (4th Cir. 2002). The Court
must, however, also abide by the “affirmative obligation of the trial judge to prevent factually
unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526 (quoting
Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993) and citing Celotex Corp. v. Catrett, 477
U.S. 317, 323–24 (1986)).
Qualified Immunity
“Qualified immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). “In particular, . . . qualified immunity protects law officers
from ‘bad guesses in gray areas’ and it ensures that they may be held personally liable only ‘for
transgressing bright lines.’” Gomez v. Atkins, 296 F.3d 253, 261 (4th Cir. 2002) (quoting
Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)). The defense provides protection for
public officials for mistakes of law, mistakes of fact, or a combination of the two. See Groh v.
Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting). Qualified immunity is a defense
from suit, not simply liability, which is lost if a matter is improperly permitted to go to trial. See
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Resolution of whether an official is entitled to
qualified immunity must be determined “at the earliest possible stage in litigation.” Hunter v.
Bryant, 502 U.S. 224, 227 (1991).

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In order to determine if a public official is entitled to the protections afforded by qualified
immunity, two inquiries must be addressed by this Court.

The first prong is whether “[t]aken in

the light most favorable to the party asserting the injury, . . . the facts alleged show [that] the
officer’s conduct violated a constitutional right[.]” Saucier v. Katz, 533 U.S. 194, 201 (2001). If
the evidence establishes a violation of a constitutional right, the second prong is to assess
whether the right was “clearly established” at the time of the events at issue. Id. If the right was
not clearly established, the qualified immunity doctrine shields a defendant officer from liability.
The “answer to both Saucier questions must be in the affirmative in order for a plaintiff to defeat
a . . . motion for summary judgment on qualified immunity grounds.” Henry v. Purnell, 501
F.3d 374, 377–78 (4th Cir. 2007) (citing Batten v. Gomez, 324 F.3d 288, 293-94 (4th Cir. 2003)).
Trial courts may “exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Pearson, 555 U.S. at 236.
Taken in a light most favorable to Burroughs, there is a colorable argument that his
Eighth Amendment rights were violated. Burroughs alleges not only that he was housed in a unit
where gang members with whom he was not associated were assigned, but also that vital security
equipment—the locks on multiple cell doors—was not operational and that Warden Green was
made aware of it. Compl. 8. There appears to be no dispute that sanitation workers, who are
inmates, had been released from the cells and correctional staff were not present in the area to
supervise. Def.’s Mem. 5. Additionally, there is evidence in the record to support Burroughs’s
claim that serious concerns regarding inmate safety are regularly ignored by the administration at
ECI.

Burroughs’s ARP raised those concerns and was erroneously dismissed; those same

concerns were again communicated to the Commissioner of Correction and denied on procedural

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grounds. Burroughs ARP, Def.’s Mem. Ex. 2, at 4–5 (complaining of multiple instances of
inmate assault in cells with faulty doors and prison’s failure to address the cell-door problem);
Donnelly Decl. ¶¶ 4–6 (declaring that ARP appeal was denied due to failure to include copy of
ARP with an administrative response because it was impossible to infer the basis for Burroughs’
appeal); Burroughs ARP Appeal, Second Supp. Compl. Attach. 1, at 3 (indicating that Warden
did not respond to ARP). Lieutenant White noted in her report that a work order would be
placed to repair the cell doors, Use of Force Report, Def.’s Mem. Ex. 1, at 25, but Glasgow’s
declaration under oath contains no indication that anything was done to the cell doors following
Burroughs’s assault, see Glasgow Decl. ¶ 3, Def.’s Mem. Ex. 7. Warden Green, who does not
provide a declaration under oath, was presumably made aware of the content of the Use of Force
Report and her designee reviewed Burroughs’s ARP. Donnelly Decl., Def.’s Mem. Ex. 3.
It is well-established that the Eighth Amendment prohibits gratuitously allowing the
beating or rape of one prisoner by another” because it “serves no legitimate penologicial
objective, any more than it squares with evolving standards of decency.” Farmer v. Brennan,
511 U.S. 825, 833–34 (1994) (citations omitted). Burroughs claims that Warden Green allowed
conditions to exist that created a substantial risk of significant physical or emotional injury.
Thus, she is not entitled to avail herself of a qualified-immunity defense.

See Danser v.

Stansberry, 772 F.3d 340, 346–47 (4th Cir. 2014).
Exhaustion of Administrative Remedies
Warden Green also asserts the affirmative defense that Burroughs failed to exhaust his
claim through the administrative remedy process. Def.’s Mem. 13–17. The Prisoner Litigation
Reform Act (PLRA) provides, in pertinent part:
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
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other correctional facility until such administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a).
This requirement is one of “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93
(2006). The Fourth Circuit has addressed the meaning of “available” remedies:
[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).
Moore, 517 F. 3d at 725.
Exhaustion is mandatory. Ross, 136 S. Ct. at 1857; Jones v. Bock, 549 U.S. 199, 219
(2007). A court may not excuse a failure to exhaust. Ross, 136 S. Ct. at 1856 (citing Miller v.
French, 530 U.S. 327, 337 (2000)). The claims asserted must be dismissed if the defendant
raises the affirmative defense and also proves that the plaintiff has failed to exhaust available
remedies. See Jones, 549 U.S. at 216–17.
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 v. Peay, 286 F. Supp. 2d 523, 530 (D. Md. 2003); see also
Booth, 532 U.S. at 735 (affirming dismissal of prisoner’s claim for failure to 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

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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 purpose of exhaustion is to: 1)
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
useful record in the event of litigation. Jones, 549 U.S. at 219. An inmate’s failure to exhaust
administrative remedies is an affirmative defense; defendant bears the burden of proving that he
had remedies available to him of which he failed to take advantage. Jones, 549 U.S. at 211–12,
216; Moore, 517 F.3d at 725.
In Ross the Supreme Court identified three kinds of circumstances in which an
administrative remedy is unavailable. First, “an administrative procedure is unavailable when
(despite what regulations or guidance materials may promise) it operates as a simple dead end—
with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross,
136 S. Ct at 1859. Second, “an administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use. In this situation, some mechanism exists to provide relief,
but no ordinary prisoner can discern or navigate it.” Id. The third circumstance arises when
“prison administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id.
In Maryland, filing an ARP with the warden of the prison is the first of three steps in the
ARP process. See Code of Md Regs. (“COMAR”), tit. 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, tit. 12 § 07.01.05.A. If the request is denied, a prisoner has 30 calendar days to

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file an appeal with the Commissioner of Correction. COMAR, tit. 12 § 07.01.05.C. If the appeal
is denied, the prisoner has 30 days to file a grievance with the Inmate Grievance Office (IGO).
See Md. Code Ann., Corr. Servs. §§ 10-206, -210; COMAR, tit. 12 §§ 07.01.03, 07.01.05.B.
Grievances are reviewed preliminarily by the IGO. See Md. Code Ann. Corr. Servs.
§ 10-207; COMAR, tit. 12 § 07.01.06.A. If a grievance is determined to be “wholly lacking in
merit on its face,” the IGO may dismiss it without a hearing. Md. Code Ann., Corr. Servs.
§ 10-207(b)(1); see also COMAR, tit. 12 § 07.01.07.B. An IGO order of dismissal constitutes
the final decision of the Secretary of DPSCS for purposes of judicial review. Md. Code Ann.,
Corr. Servs. § 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 Md. Code Ann., Cts. & Jud. Proc. § 10-208(c); COMAR tit. 12 § 07.01.07-08.
The conduct of such hearings is governed by statute. See Md. Code Ann., Corr. Servs. § 10-208.
A decision of the administrative law judge denying all relief to the inmate is considered a
final agency determination. 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 Md. Code Ann., Corr. Servs. § 10-209(b)–(c). The final agency
determination is subject to judicial review in Maryland state court, see Md. Code Ann., Corr.
Servs. § 10-210; however, an inmate need not seek judicial review to satisfy the PLRA’s
administrative exhaustion requirement. See Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.
2002) (“[A] prisoner who uses all administrative options that the state offers need not also pursue
judicial review in state court.”).

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In the instant case Burroughs filed an ARP regarding the assault and the conditions that
existed which allowed it to occur, and it was dismissed for erroneous reasons. The complaint
was dismissed as an improper attempt to use the complaint process to address “disciplinary
procedures and decisions.” Burroughs ARP, Def.’s Mem. Ex. 2, at 4. Burroughs’s complaint did
not concern a disciplinary issue; rather, it addressed his alleged assault and the faulty cell doors
that made the assault possible. Id. at 4–5. Despite the erroneous response to his complaint,
Burroughs’s appeal did not bring the response’s stated reason for dismissal to the
Commissioner’s attention, and he did not attach the ARP, which included the Warden’s
response, to the appeal. Instead, Burroughs’s appeal incorrectly indicated that he received no
response to his ARP without providing any facts to support that contention, such as the date on
which the ARP was submitted and the deadline for a response. Even though Burroughs was
informed that his appeal would not be processed due to the deficiencies in the form and
information presented, there is no evidence that he attempted to correct his submission. And
there is no evidence in the record to suggest that Burroughs filed a grievance with the IGO in
response to the Commissioner’s denial of his appeal. Thus, the claim has not been properly
exhausted and must be dismissed.
By separate Order which follows, Defendant shall be granted summary judgment.

January 19, 2017
Date

/S/
Paul W. Grimm
United States District Judge

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