Murray v. Warden

Filing 64

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 2/12/2019. (sp2s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

CHRIS MURRAY,
Plaintiff,

v.
MR. RICKY FOXWELL, Warden - Eel,
LT. EVAN WARD,
SGT. JASON WALLACE and
KEITH SCHAFFER, C.0. II,

Civil Action No. TDC-16-4141

Defendants.

MEMORANDUM OPINION
Plaintiff Chris Murray, an inmate at Western Correctional Institution in Cumberland,
Maryland, has filed a civil action against Defendants Ricky Foxwell, Warden of the Eastern
Correctional Institution ("ECI") in Westover, Maryland; Lt. Evan Ward, the Institutional Remedy
Coordinator at ECI; and ECI correctional officers Sgt. Jason Wallace and Correctional Officer II
Keith Schaffer.

Murray alleges that Defendants violated his constitutional rights to access the

courts, to freedom of speech and expression, and to due process of law by suppressing complaints
he filed through the prison's administrative remedy procedure ("ARPs").

He seeks an order

directing Defendants to comply with prison policies governing the handling of ARPs.
Pending before the Court are Defendants'

Motions to Dismiss or, in the Alternative,

Motions for Summary Judgment. Upon review of the submitted materials, the Court finds that no
hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, Defendants'
Motions are GRANTED.

BACKGROUND
Murray was transferred from the Roxbury Correctional Institution to ECI on October 19,
2016. According to Murray, ECI correctional staff improperly handled his ARPs, refused to issue
forms for filing ARPs, and told him that they may only issue one ARP form per week. In addition,
Murray alleges that correctional staff have obstructed inmates' access to the ARP process through
different forms of retaliation, including verbal and physical harassment, denial of recreation and
programs, and transfer from one unit, compound, or institution to another. He claims that staff at
ECI "negligently or deliberately misplaced or stole 100 postage stamps along with approximately
$45.00 worth of commissary food items" from his personal property and that his television had
been broken, "as if someone tried to pr[y] it open deliberately and maliciously."

Mot. Am. Pet'n

9, ECF No. 33.
Specifically, Murray claims that on October 22, 2016, he gave Officer Schaffer three
completed ARP forms and asked him to sign them and to issue him the carbon copies, but Officer
Schaffer refused to do so. On October 23,2016, Murray again saw Officer Schaffer and repeated
his request for copies but was told that the ARPs had been forwarded to Sgt. Wallace for
processing.

Murray then approached another correctional officer, who told Murray that carbon

copies are not issued until it has been determined whether the matter can be resolved informally.
According to Murray, the officer explained that at ECI, the inmate would receive a carbon copy of
a submitted ARP only if the matter remained unresolved after investigation.
On October 25,2016, having not yet received the carbon copies, Murray submitted another
ARP, complaining about "the 'arbitrary' action of the ECI staff' and how the staff had infringed
on his rights. CompI. 3, ECF NO.3. Between October 27,2016 and December 15, 2016, Murray
sent correspondence

to several correctional and government officials, as well as non-profit

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organizations, requesting intervention and an investigation of ECl's handling of ARPs.

On

November 22, 2016, Murray submitted two ARPs to Sgt. Wallace, who stated that he would
forward them to a lieutenant. Murray states that he never received carbon copies or responses to
any of the ARPs he submitted.
On December 21, 2016, Murray was summoned to meet with ECl's ARP Coordinator Lt.
Ward and another lieutenant, who explained to him the process by which ECl handles ARPs. At
that time, Murray told Lt. Ward that ECl correctional officers, including Officer Schaffer and Sgt.
Wallace, had accepted his ARPs but refused to provide the requested carbon copies.

The

lieutenants informed Murray that ECl staff were required to attempt to resolve any ARP issues
prior to the ARP being submitted. They also advised him to directly submit any other issues with
the ARP process to Lt. Ward by using a mailbox in the Housing Unit.
As of August 21,2017, Murray had filed 24 ARPs at ECl. ARP No. ECl-0670-17, filed
by Murray on October 31,2016, complained about ECl's failure to provide him with carbon copies
of his grievances.

ARP No. ECl-0670-17

was stamped as received on March 16, 2017,

approximately one month after Murray filed the Complaint in this case.

An assigned ARP

investigator interviewed Murray on March 24, 2017 and concluded that Murray was unable to
provide any details to support his claim. The investigator noted that Murray could not provide the
time of day when he filed his initial complaint or what the complaint was about.

Murray

acknowledged that he did not follow up regarding his "missing" ARP forms and that nobody
witnessed the incidents. Defs.' First Mot. Dismiss Ex. 1 at 5, ECF No. 17-3. Because Murray was
unable to provide sufficient evidence or any witnesses to substantiate his claims, the investigator
found ARP No. ECl-0670-17 to be without merit and subject to dismissal.

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The investigative report for ARP No. ECI-0670-17, dated April 28, 2017, included signed
statements from each of the four officers listed in the ARP, including Sgt. Wallace and Officer
Schaffer. Three of the officers either denied or could not recall receiving ARPs from Murray on
the day in question, while one acknowledged that he received an ARP from Murray but returned
it to him because it contained multiple issues and thus needed to be revised to raise only a single
issue. On May 4, 2017, Warden Foxwell dismissed ARP No. ECI-0670-17 with the following
statement:
Your request for Administrative Remedy has been investigated and is hereby
Dismissed: upon review of reports from staff and supporting documentation it has
been determined that there is no evidence to substantiate your claim that your access
to the courts ha[ s] been hampered. Documentation shows that your ARP forms
were handled properly in accordance with IB 09-10 "the inmate population will
turn in all completed ARP forms to the dayshift OIC [Officer in Charge] for
signature. The OIC will issue the inmate the signed copy of the complaint form.
The housing unit manager will collect the completed ARP forms from the control
center daily. The unit manager will review the ARP complaint and conduct an
interview to determine if he/she can resolve the complaint. If it is determined that
the complaint cannot be resolved, the unit manager shall forward the complaint to
the ARP dept.

Id. at 2..
Murray prepared other ARPs dated October 31, 2016 which were not stamped as received
by ECI staff. In one of those un-numbered ARPs, Murray complained that Officer Schaffer had
denied him ARP forms upon request.

Murray later appealed that ARP to the Commissioner of

Corrections and then to the Inmate Grievance Office ("I GO"), alleging that the Warden had failed
to address his grievance. By letter dated June 30, 2017, an IGO Administrative Officer informed
Murray that his grievance was being dismissed.

The Administrative

Officer concluded that

Murray had failed to state a claim meriting administrative relief because ARP forms can be
obtained through means other than requesting them from correctional officers, such as obtaining
them from the prison library.
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In another un-numbered ARP dated October 31, 2016, Murray alleged that he was being
subjected to retaliation for filing ARPs earlier that week. According to Murray, a correctional
officer, Correctional Officer II Johnson, conducted a search of Murray's cell and stated, "This is
just a prelude to what lies ahead for people who like to file ARPs." Defs.' First Mot. Dismiss Ex.
3 at 26, ECF No. 17-5. Murray requested an investigation into the matter and asked that Officer
Johnson, Sgt. Wallace, and two other correctional officers be held accountable. Murray appealed
that un-numbered ARP up to the IGO. By letter dated June 30, 2017, an IGO Administrative
Officer dismissed Murray's grievance for failure to state a claim upon which administrative relief
could be granted. According to the Administrative Officer, Murray failed to provide any evidence
that Officer Johnson made any comments to him "regarding the cell search occurring as a result of
[Murray] filing ARPs" or that any correctional staff retaliated against him in any way. Id. at 29.
In a declaration, Warden Foxwell has acknowledged that he is familiar with Murray's
claims but has stated that he did not hinder, delay, or interfere with Murray's ability to use the
ARP process. Warden Foxwell stated that he expects ECI staffto comply with the directives and
policies regarding ARPs. When responding to ARPs, he relies on the reports and assessments of
the correctional staff.
DISCUSSION
In their Motion, Defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6)
or summary judgment under Rule 56.

Specifically, Defendants argue that (1) the Eleventh

Amendment to the United States Constitution bars claims against Defendants in their official
capacities; (2) the claims against Warden Foxwell in his personal capacity fail because Murray
cannot demonstrate that Warden Foxwell is liable under a theory of supervisory liability; (3)

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Murray has failed to provide evidence to establish that his First Amendment rights or due process
rights have been violated; and (4) Defendants are entitled to qualified immunity from suit.
I.

Legal Standards
Defendants have entitled their motions as Motions to Dismiss or, in the Alternative,

Motions for Summary Judgment.

To defeat a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow
"the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Id. Legal conclusions or conclusory statements do not suffice. Id. The Court must examine the
complaint as a whole, consider the factual allegations in the complaint as true, and construe the
factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266,
268 (1994); Lambeth v. Bd. ofComm'rs

of Davidson Cty., 407 F.3d 266,268 (4th Cir. 2005).

When a moving party submits affidavits or other evidence for the Court's consideration on
a motion to dismiss, the Court ordinarily may not consider such materials unless the motion is
treated as one for summary judgment. Fed. R. Civ. P. 12(d). Before converting a motion to dismiss
to one for summary judgment, courts must give the nonmoving party "a reasonable opportunity to
present all the material that is pertinent to the motion."
requirements:

Id.

"Reasonable opportunity" has two

(l) the nonmoving party must have some notice that the court is treating the Rule

12(b)( 6) motion as a motion for summary judgment; and (2) the nonmoving party must be afforded
"a reasonable opportunity for discovery" to obtain information essential to oppose the motion.
Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). Here, the notice requirement has been satisfied
by the title of Defendants' Motions.

To show that a reasonable opportunity for discovery has not

been afforded, the nonmoving party must file an affidavit or declaration under Rule 56( d) or

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otherwise explain why "for specified reasons, it cannot present facts essential to justify its
opposition."

Fed. R. Civ. P. 56(d); see Harrods Ltd v. Sixty Internet Domain Names, 302 F.3d

214, 244-45 (4th Cir. 2002). Here, Murray has not filed a Rule 56(d) affidavit and instead has
submitted his own declarations and exhibits with his memoranda in opposition to the Motions.
The Court therefore will construe them as motions for summary judgment.
Under Federal Rule of Civil Procedure 56, the Court grants. summary judgment if the
moving party demonstrates that there is no genuine issue as to any material fact, and that the
moving party is entitled to judgment as a matter oflaw.

Fed. R. Civ. P. 56(a); Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). In assessing the Motions, the Court views the facts in the light
most favorable to the nonmoving party, with "all justifiable inferences" drawn in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts
supported in the record, not simply assertions in the pleadings. Bouchat v. Bait. Ravens Football
Club, Inc., 346 F.3d 514,522 (4th Cir. 2003). A fact is "material" if it "might affect the outcome
of the suit under the governing law." Anderson, 477 U.S. at 248. A dispute of material fact is only
"genuine" if sufficient evidence favoring the nonmoving party exists for the trier of fact to return
a verdict for that party. Id. at 248--49.
II.

Eleventh Amendment
The Eleventh Amendment to the United States Constitution provides that "The Judicial

power of the United States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State, or by Citizens or
subjects of any Foreign State." U.S. Const. amend. XI. In effect, the Eleventh Amendment bars
suits for damages against a state in federal court unless the state has waived its sovereign immunity
or Congress has abrogated its immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465

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U.S. 89,100 (1984) ("It is clear, of course, that in the absence of consent a suit in which the State
or one of its agencies or departments is named as the defendant is proscribed by the Eleventh
Amendment.").

"[A] suit against a state official in his or her official capacity is not a suit against

the official but rather is a suit against the official's office. As such, it is no different from a suit
against the State itself." Will v. Mich. Dep't a/State Police, 491 U.S. 58, 71 (1989). Thus, states
and their officers, sued in their official capacities, are not "persons" subject to suit for money
damages under

S 1983.

Id. at 70.

Although the State of Maryland has waived its sovereign immunity for certain types of
cases brought in state courts, see Md. Code Ann., State Gov't

S 12-202(a)

(2015), it has not waived

its immunity under the Eleventh Amendment to a suit ofthis kind in federal court. Accordingly,
Defendants are immune from suit for actions taken in their official capacity.

III.

Warden Foxwell
As to claims against Warden Foxwell in his personal capacity, the Complaint does not

allege any acts or omissions by Warden Foxwell. Nor can Warden Foxwell be held liable simply
for occupying a supervisory position because vicarious liability does not apply to
See Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (recognizing that under

S

1983 claims.

S 1983, individual

liability must be based on personal conduct). A supervisory official cannot be held liable for the
acts of a subordinate unless the supervisor's "indifference or tacit authorization of subordinates'
misconduct" can be deemed to have caused the injury to the plaintiff. Baynard v. Malone, 268
F.3d 228,235 (4th Cir. 2001) (quoting Slakan v. Porter, 737 F.2d 368,372 (4th Cir. 1984)). For
a supervisor to be found liable for such acts, a plaintiff must prove that (1) the supervisor has actual
or constructive knowledge that the subordinate was engaged in conduct that posed a pervasive and
unreasonable risk of constitutional injury to individuals like the plaintiff; (2) the supervisor's

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response to that knowledge was so inadequate as to show deliberate indifference to or tacit
authorization of the subordihate's misconduct; and (3) there was an affirmative causal link between
the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Id.; Shaw
v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
At best, the Complaint and evidence may establish that Warden Foxwell did not respond
to one or more of Murray' s ARPs. Murray's claim, however, is that correctional officers refused
to accept and submit ARPs, such that Warden Foxwell would not have received them. To the
extent that Warden Foxwell actually received and considered certain ARPs, addressing an inmate's
grievance, without more, does not amount to participation in the alleged constitutional violation
sufficient to confer liability. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (lOth Cir. 2009) ("[A]
denial of a grievance, by itself without any connection to the violation of constitutional rights
alleged by plaintiff, does not establish personal participation under

S 1983.").

Where the alleged

constitutional violations arise from a refusal to accept and process ARPs and alleged retaliation
for filing ARPs, there is no evidence that Warden Foxwell was aware of, or participated in these
activities. The Court will therefore grant summary judgment in favor of Warden Foxwell.
IV.

First Amendment
Murray's claims that his First Amendment rights have been violated are properly construed

as claims that Defendants violated (l) his right of access to courts; and (2) his right to be free from
retaliation for filing prison grievances.
A.

Access to Courts

Prisoners have a constitutionally protected right of access to the courts. See Bounds v.
Smith, 430 U.S. 817,821 (1977). This right, however, is limited to protecting an inmate's right
"to attack their sentences, directly or collaterally, and in order to challenge the conditions of their

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confinement." Lewis v. Casey, 518 U.S. 343, 355 (1996). Impairment of the ability to litigate any
other matter is considered an incidental consequence of conviction and incarceration and is thus
constitutional.

Id.

A critical requirement of an access-to-courts claim is that a prisoner must show "actual
injury" to "the capability of bringing contemplated challenges to sentences or conditions of
confinement before the courts." O'Dell v. Netherland, 112 F. 3d 773,776 (4th Cir. 1997) (quoting
Lewis, 518 U.S. at 355). Actual injury occurs when a prisoner demonstrates that a "nonfrivolous"
and "arguable" claim was frustrated or impeded because of the denial of access to the courts.
Lewis, 518 U.S. at 352-53 & n.3. The complaint must contain a sufficient description of the
predicate claim to permit an assessment of whether it is "nonfrivolous" or "arguable." Christopher
v. Harbury, 536 U.S. 403, 415 (2002).
Allegations of injury arising from the denial of access to the courts therefore must be
specific and articulate how the litigation was harmed. See, e.g., Ali v. District of Columbia, 278
F.3d 1,8 (D.C. Cir. 2002) (holding that an allegation that the failure to transport a prisoner's legal
documents to his prison caused his unspecified "open case" to be "set back" did not state a claim
of actual injury from a denial of access to courts); see also Johnson v. Hamilton, 452 F.3d 967,
973-74 (8th Cir. 2006) (dismissing an access-to-courts claim arising from the alleged destruction
of the prisoner's legal papers because there were no allegation of facts supporting a finding of
injury or prejudice).

Cody v. Weber, 256 F.3d 764, 769-70 (8th Cir. 2001) (holding that lack of

access to computer disks containing the prisoner's legal materials did not establish a denial of
access to courts because the vague allegation that the stored data would "set him free" was
insufficient to establish actual injury).

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Here, Murray claims that he has been denied access to the courts because Defendants failed
to give him forms for filing ARPs, they did not give him the carbon copies of ARPs that he did
file, and, in some instances, they did not process his filed ARPs. In theory, the thwarting of the
ARP process could support an access-to-courts
("PLRA"), 42 U.S.C.

S 1997e

claim.

The Prison Litigation Reform Act

(2012), provides that "(n]o 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."

Id.

Because failure to complete the requirements of the ARP would result in

dismissal of any federal court claim alleging unconstitutional

conditions of confinement, see

Anderson v. XYZ Correctional Health Serv's., Inc., 407 F.3d 674,681 (4th Cir. 2005), interference
with the ability to complete the ARP process could be the denial of one of the "tools" required to
litigate conditions of confinement in court. See Lewis, 518 U.S. at 355 (stating that a denial of
access to courts can be premised on denying the "tools" required to challenge conditions of
confinement).
Murray's claim, however, fails because he has never identified any "nonfrivolous"

or

"arguable" claim that was frustrated, or that any actual injury resulted from the loss of such a
claim.

For all of his allegations about deficiencies in the ARP process, Murray has never

sufficiently identified or articulated a substantive claim underlying any of the ARPs he submitted,
or failed to submit because of Defendants' actions, that would allow for an assessment of whether
it was a "nonfrivolous"
unconstitutional.

or arguably meritorious claim that his conditions of confinement are

Christopher, 536 U.S. at 415. By failing to do so, Murray cannot establish any

"actual injury," in that any particular relief would have been awarded by a court had the claim
been allowed to proceed, as required to prevail on an access-to-courts claim. See O'Dell, 112 F.

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3d at 776. Because Murray's claim fails as a matter oflaw, the Court will grant summary judgment
to Defendants on the access-to-courts claim.
However, the Court finds it noteworthy that the record establishes that ARPs submitted by
Murray in October 2016 were not processed or investigated until March 2017 or later, and only
after Murray filed his Complaint in this Court in February 2017. It should not take the filing a
federal case for a prison to process properly an ARP submitted by a prisoner, frivolous or not.
Such delays, particularly to the extent they may have been intentional or part of a misguided notion
that prisons need not process ARPs until after they have been investigated, must be addressed and
resolved by ECI.
B.

Retaliation

Murray also alleges that Defendants retaliated against him for filing ARPs.

"The First

Amendment right to free speech includes not only the affirmative right to speak, but also the right
to be free from retaliation by a public official for the exercise of that right." Suarez Corp. Indus.
v. McGraw, 202 F.3d 676,685 (4th Cir. 2000). "[A] prison inmate retains those First Amendment
rights that are not inconsistent with the status as a prisoner or with the legitimate penological
objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). Consistent
with this principle, the United States Court of Appeals for the Fourth Circuit has held that an
inmate's

"right to file a prison grievance free from retaliation"

Amendment.

is protected by the First

Booker v. S. Carolina Dep't of Corrections, 855 F.3d 533, 545 (4th Cir. 2017). In

doing so, the Fourth Circuit rejected a claim of qualified immunity based on the conclusion that a
prisoner's First Amendment right to be free from retaliation for filing a grievance was clearly
established based on the consensus of case law pre-dating the events in this case. See Booker, 855
F.3d at 544-45. Thus, Murray has a clearly established First Amendment right to be free from

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retaliation for filing grievances, and Defendants are not entitled to qualified immunity on that
claim.
In order to succeed on a First Amendment retaliation claim under ~ 1983, Murray must
prove that (1) he engaged in a constitutionally protected First Amendment activity, (2) a defendant
took an action that adversely affected that protected activity, and (3) there was a causal relationship
between the protected activity and the defendant's conduct. See Constantine v. Rectors & Visitors
o/George Mason Univ., 411 F.3d 474,499 (4th Cir. 2005); Suarez Corp., 202 F.3d at 686.
Here, although Murray claims that correctional staff at ECI retaliated against him for filing
ARPs, he details only a single incident of alleged retaliation by a specific correctional official.
Murray alleges that Officer Johnson conducted a search of Murray's cell, broke Murray's radio in
the process, and stated, "This is just a prelude to what lies ahead for people who like to file ARPs."
See Compl. 4; Defs.' First Mot. Dismiss Ex. 3 at 26; Pl.'s Opp'n First Mot. Dismiss 19, ECF No.
28. Officer Johnson, however, is not a Defendant in this case. Although Murray, with leave of
the Court, filed an Amended Complaint on December 15, 2017 in which he added several new
Defendants, he did not include Officer Johnson. Murray's general allegations that his television
was broken and his postage stamps and commissary items were taken are not linked to any of the
named Defendants, and he has provided no evidence to show that they were responsible for that
misconduct.

As discussed above, because vicarious liability is not available in ~ 1983 cases,

Defendants in this case cannot be held liable for these incidents absent personal involvement. See
Wright, 766 F.2d at 850. Because Murray has not established a viable First Amendment retaliation
claim against any of the named Defendants, the Court will grant summary judgment to Defendants
on this claim.

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v.

Due Process
Murray also complains that the interference with his submission of ARPs has denied him

due process of law.

Although Murray asserts that Defendants violated prison policies and

procedures relating to the processing of ARPs, violations of state laws or regulations do not
establish a basis for a federal procedural due process claim. See Weller v. Dep't of Soc. Servs.,
901 F.2d 387,392 (4th Cir. 1990). Likewise, the failure to follow prison directives or regulations
does not, in and of itself, establish a violation of due process. See Kitchen v. Ickes, 116 F. Supp.
3d 613, 629 & n.6 (D. Md. 2015) (citing Myers v. Klevenhagen, 97 F.3d 91,94 (5th Cir. 1996)).
Even where a state has created internal prison procedures, the procedural protections of the
Due Process Clause apply only to actions that implicate a protected liberty interest, such as those
that result in the loss of good time credits, see Ewell v. Murray, 11 F.3d 482, 488 (4th Cir. 1993),
or otherwise lengthen the amount oftime an inmate must serve, see Montanye v. Haymes, 427 U.S.
236, 242 (1976), as well as those that impose "atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life," such as transfer to a mental institution or
involuntary administration of medication, see Sandin v. Conner, 515 U.S. 472, 477-78, 483-84
(1995). Murray's allegations that Defendants hindered his access to the ARP process do not meet
these standards. Therefore, the Court will grant summary judgment to Defendants on this claim.
CONCLUSION
For the foregoing reasons, the Defendants'

Motions to Dismiss or, in the Alternative,

Motion for Summary Judgment will be GRANTED. A separate Order shall issue.

Date: February 12,2019
THEODORE D. CHUANG
United States District Jud

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