Patterson v. Brown, et al
Filing
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MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 8/31/2018. (kns, Deputy Clerk)(c/m 8/31/18)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BRODERICK PATTERSON,
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Plaintiff,
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v.
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OFFICER T. BROWN, et al.,
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Defendants.
Civil Action No. PWG-17-1154
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MEMORANDUM OPINION
Plaintiff Broderick Patterson, a former state inmate, alleges that while he was
incarcerated, he was denied adequate medical care and also was denied access to courts in
retaliation for his having filed a formal complaint. Compl. 4, ECF No. 1. On August 4, 2017,
Defendants the Department of Public Safety and Correctional Services (“DPSCS”), the
Commissioner of Correction, Lieutenant Chukwuemeka Nkwocha, Sergeant Valentine Ning, and
Correctional Officer II T. Brown (collectively “Defendants”) filed a Motion to Dismiss, or, in the
Alternative, Motion for Summary Judgment. Def.’s Mot., ECF No. 11. On August 28, 2017,
Plaintiff filed a Motion for Leave to Amend the Complaint, Pl.’s Mot. to Am., ECF No. 13,
which was granted, ECF No. 15.1 Because Plaintiff supplemented his allegations, I denied
Defendants’’ motion without prejudice. Id. Plaintiff added an allegation that on May 9, 2017,
Defendant Brown wrote another “false infraction” against him and that he was transferred in
retaliation for his filing his Complaint in this action. Pl.’s Suppl. Alleg. 1.
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The Court granted Plaintiff’s motion and required Defendants to respond to the new allegations
contained within Plaintiff’s motion. ECF No. 15. No other document was submitted or docketed
by Plaintiff, and therefore, I will refer to the allegations in Plaintiff’s motion as Plaintiff’s
Supplemental Allegations (“Pl.’s Suppl. Alleg.”).
Defendants renewed their Motion to Dismiss, or, in the Alternative, Motion for Summary
Judgment, and incorporated by reference the arguments contained within their first motion.
Defs.’ Second Mot., ECF No. 18. On March 9, 2018, the Clerk of the Court informed Mr.
Patterson that Defendants filed a dispositive motion; that he had seventeen days in which to file a
written opposition to the motion; and that if he failed to respond, summary judgment could be
entered against him without further notice. See ECF No. 19; Roseboro v. Garrison, 528 F.2d
309, 310 (4th Cir. 1975). Mr. Patterson has not responded. A hearing is unnecessary. See Loc.
R. 105.6 (D. Md. 2016).
Defendants’ Motion to Dismiss will be granted.
Because Mr.
Patterson’s allegations have not been administratively exhausted, his complaint will be dismissed
without prejudice.
Background
Plaintiff alleges that on January 23, 2017 at 4:45 a.m., he went to the medical department
for a glucose level check and for a possible insulin injection. Compl. 4. He alleges that Officer
Brown and Sergeant Ning denied him access to the medical department and that Officer Brown
and Sergeant Ning had previously denied him access to the medical department for several
weeks. Id. Plaintiff was served with a Notice of Inmate Rule Violation on January 24, 2017.
Green Decl. & Admin. R. 12, ECF No. 11-7. Plaintiff ultimately was found not guilty of the rule
violation based on his presenting evidence that he was diabetic. Id. at 21. Plaintiff filed an
administrative remedy procedure (“ARP”), Number CMCF-0043-17, on February 7, 2017,
complaining that Brown, Nkwocha, and Ning denied him access to medical care and seeking
“compensatory and punative damages for the denial of access to medical treatment, interference
with [his] constitutional right to file a grievance (access to court) and retaliation for filing a
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complaint . . . .”2 Id. at 2–3. After an investigation the ARP was dismissed by the Warden on
May 19, 2017. Id. at 4–6.
On May 9, 2017, Plaintiff received a notice of inmate rule violation for “intimidating,
threatening, or using coercive language against staff,” Scramlin Decl. ¶ 2, ECF No. 18-10, when,
on that same date, he said to Brown, “yeah and that bogus ticket that you wrote on me. If you
weren’t pregnant I would slap the shit out of you but I guess you are too old for that.” May 9,
2017 Notice of Violation 2, ECF No. 18-12. Plaintiff did not file an ARP regarding the May 9,
2017 inmate rule violation, his transfer from CMCF to BCF, or his lost property. Scramlin Decl.
¶ 4.
Standard of Review
Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Under this Rule,
Patterson’s Complaint is subject to dismissal if it “fail[s] to state a claim upon which relief can
be granted.” Fed. R. Civ. P. 12(b)(6). A complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and must state “a
plausible claim for relief,” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Rule
12(b)(6)’s purpose “is to test the sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v.
City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). If an affirmative defense “clearly
appears on the face of the complaint,” however, the Court may rule on that defense when
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This is Mr. Patterson’s only reference to interference with “access to court.” Green Decl. &
Admin. R. 3
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considering a motion to dismiss. Kalos v. Centennial Sur. Assocs., No. CCB-12-1532, 2012 WL
6210117, at *2 (D. Md. Dec. 12, 2012) (quoting Andrews v. Daw, 201 F.3d 521, 524 n. 1 (4th
Cir. 2000) (citation and quotation marks omitted)). Failure to exhaust administrative remedies is
one such affirmative defense. Kilpatrick v. Hollifield, 592 F. App’x 199, 200 (4th Cir. 2015).
Discussion
Defendants argue that Plaintiff has failed to exhaust his administrative remedies. Defs.’
Mem. 18–20. The Prison Litigation Reform Act (“PLRA”) provides, in pertinent part, 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.” 42 U.S.C. § 1997e(a). “[T]he
phrase ‘prison conditions’ encompasses ‘all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege excessive force or some
other wrong.’” Chase v. Peay, 286 F. Supp. 2d 523, 528 (D. Md. 2003) (quoting Porter v.
Nussle, 534 U.S. 516, 532 (2002)), aff’d, 98 Fed. App’x 253 (4th Cir. 2004).
A claim that has not been exhausted may not be considered by this Court. See Jones v.
Bock, 549 U.S. 199, 220 (2007). In other words, exhaustion is mandatory. Ross v. Blake, 136 S.
Ct. 1850, 1857 (2016). Therefore, a court ordinarily “may not excuse a failure to exhaust.” Id.
at 1856 (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining that “[t]he mandatory
‘shall’ . . . normally creates an obligation impervious to judicial discretion”)).
Moreover,
“[e]xhausting administrative remedies after a complaint is filed will not prevent a case from
being dismissed for failure to exhaust administrative remedies. Exhaustion is a precondition to
filing suit in federal court.” Kitchen v. Ickes, 116 F. Supp. 613, 624–25 (D. Md. 2015) (internal
citation omitted).
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For most grievances filed by Maryland state prisoners, filing a request for administrative
remedy (“ARP”) with the prison’s managing official is the first of three steps in exhausting
administrative remedies as required under § 1997e(a). See Md. Code Regs. 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. Id. at 12.07.01.05A. If the request is denied, a prisoner has 30
calendar days to file an appeal with the Commissioner of Correction. Id. at 12.07.01.05C. 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, 10-210; Md. Code Regs. 12.07.01.03 and
12.07.01.05B. The IGO then reviews the complaint and either dismisses it without a hearing, if
it is “wholly lacking in merit on its face,” or refers it to an administrative law judge for a hearing.
Corr. Servs. §§ 10-207, 10-208; Cts. & Jud. Proc. § 10-208(c); Md. Code Regs. 12.07.01.06A,
.07, .07B, .08. The administrative law judge, in turn, may deny all relief or conclude that the
inmate’s complaint is wholly or partly meritorious, after which the Secretary of DPSCS must
make a final agency determination within fifteen days of receipt of the proposed decision. See
Corr. Servs. § 10-209(b)-(c).
Plaintiff filed ARP CMCF-0043-17 on February 7, 2017 alleging that Defendants denied
him medical care and interfered with his right to file a grievance and retailed against him. Green
Decl. & Admin. R. 2, ECF No. 11-7. After not receiving a response from the Warden within
thirty days, Plaintiff was entitled to file an appeal to the Commissioner; however instead of doing
so, he bypassed an appeal to the Commissioner, and on April 19, 2017, he filed a grievance with
the IGO. Neverdon Decl. ¶ 3(a), ECF No. 11-9. On April 26, 2017, a week later and prior to the
IGO responding to his grievance, Plaintiff filed his Complaint in this case. Compl. On June 15,
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2017, in an apparent effort to exhaust his administrative remedies, Plaintiff, without referencing
his ARP complaint number, sent a letter to the Commissioner complaining that he had not
received a response from the Warden. Wolfe Decl. & Attach. 1, ECF No. 11-8. And as for the
May 9, 2017 incident, where Plaintiff alleges that he received “another false infraction,” Pl.’s
Suppl. Alleg. ¶ 1, it is evident that Plaintiff did not ever initiate the ARP process. Scramlin Decl.
¶ 4, ECF 18-10 (“There is no record at either CMCF or BCF that Inmate Patterson ever filed an
Administrative Relief Process (ARP) claim with regard to the May 9, 2017 [Notice of Inmate
Rule Violation], his subsequent transfer from CMCF to BCF, or a claim of lost property.”).
It is clear that Plaintiff failed to exhaust his administrative remedies before instituting this
case.
Plaintiff has not offered an explanation for his failure to properly complete the
administrative remedy process, but for the conclusory statement in his Complaint that he seeks
damages to compensate “for denial of access to the courts (filing of grievance).” Compl. 4. This
conclusory statement does not provide the Court a ground to excuse his non-exhaustion.
Johnson v. Joubert, JFM-11-2850, 2012 WL 2403407, at *5 (D. Md. June 25, 2012) (holding
that conclusory statements, alleging that filing an appeal would be futile, were insufficient to
avoid dismissal for failure to exhaust); Graham v. Cty. Of Gloucester, Va., 668 F. Supp. 2d 734,
740 (E.D. Va. 2009). Moreover, the evidence in the record is that he was able to and did submit
an ARP on February 7, 2017, but that he did not properly exhaust the procedure.
Further, exhausting administrative remedies after a complaint is filed will not save a case
from dismissal for failure to exhaust administrative remedies. See Neal v. Goord, 267 F.3d 116,
121–22 (2d Cir. 2001) (overruled on other grounds). In Freeman v. Francis, 196 F.3d 641, 645
(6th Cir. 1999), the court stated: “The plain language of the statute [§ 1997e(a)] makes
exhaustion a precondition to filing an action in federal Court . . . . The prisoner, therefore, may
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not exhaust administrative remedies during the pendency of the federal suit.” See Kitchen, 116
F. Supp. 3d at 624–25 (D. Md. 2015); Miller v. McConneha, et al., No. JKB-15-1349, 2015 WL
6727547, at *3–4 (D. Md. Nov. 11, 2015). Therefore, Plaintiff’s claims are dismissed without
prejudice. See Jones v. Bock, 549 U.S. at 220; Kitchen, 116 F. Supp. 3d at 624. It is unclear to
the Court whether he still may be able to exhaust his claims and, then file another suit; therefore,
dismissal without prejudice is proper.
August 31, 2018
Date
/S/
Paul W. Grimm
United States District Judge
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