Dunn v. Shearin, No. 8:2013cv02403 - Document 17 (D. Md. 2014)
Court Description: MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 8/27/2014. (c/m 8/28/14 rs) (rss, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND EULISTA B. DUNN, * Plaintiff, v. * BOBBY P. SHEARIN, Defendant. CIVIL ACTION NO. PJM-13-2403 * *** MEMORANDUM OPINION Pending is a Motion to Dismiss, or in the alternative Motion for Summary Judgment filed on behalf of Defendant Bobby P. Shearin. ECF No. 9. Plaintiff has responded. ECF No. 16. Upon review of papers and exhibits filed, the Court finds an oral hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, the dispositive motion filed by Defendant will be granted. Background Plaintiff, an inmate currently confined at the North Branch Correctional Institution (NBCI), states that on November 14, 2012, he was advised by correctional staff that because he had received a notice of inmate rule violation, his out of cell recreation was suspended pending a hearing on the rule violation. He states that he was kept in cell 24 hours a day for 31 days. ECF No. 1. Defendant indicates that Plaintiff has been in special confinement housing since October 31, 2007, either on disciplinary segregation or in the Behavioral Management Program ( BMP ). Defendant further indicates that Plaintiff has been removed from the BMP due to his continued behavioral issues. ECF No. 9, Ex. 1. On November 13, 2012, Plaintiff received a notice of inmate rule infraction charging him with violating institutional rule 102 (assault or battery on an inmate) and rule 400 (disobeying a 1 direct and lawful order). Id. An adjustment hearing was held on December 11, 2012.1 Plaintiff was found guilty of both infractions and sentenced to a total of 180 days segregation confinement. Id. Inmates assigned to administrative segregation at NBCI are provided exercise periods and showers. Id., Ex. 3, p. 29, Ex. 4, pp. 3-4. Administrative segregation inmates receive the same privileges as general population inmates where possible. Outside exercise is permitted in accordance with weather conditions and the final decision regarding whether outside exercise will be permitted is made by either the Housing Unit Manger or the Officer in Charge on that date. Id., Ex. 4, p. 3. One hour of exercise is provided daily, Monday through Friday. Showers are also provided. Id. Inmates who receive a notice of infraction while on segregation may be subject to withholding of recreation and shower privileges until the adjustment hearing. Id., Ex. 4, p. 2. Defendants assert, contrary to Plaintiff s allegations, that during his assignment to administrative segregation pending adjustment, Plaintiff was offered and refused out of cell activity on November 14, 15, 16, 19, 20, 21, 23, 25 and 30, and December 3, 6, 7, 10, 2012. Id. Records further reflect that Plaintiff received showers on November 5, 8, 12, 19, 21, 26, and 29, 2012. In December of 2012, Plaintiff received out of cell activity on December 5, 11, 19 and 28 and showers on December 3, 6, 10, 13, 17, 20, 24, 27, and 31. Out of cell activities were cancelled due to security concerns on December 12th. Additionally, outside recreation was cancelled on December 26th due to snow removal. Id. Custody records further reflect that on December 1, 2012, Plaintiff received a haircut. On November 25, December 3, 7, 9, 17, and 24, 2012, he received passes for various medical, psychological and dental appointments. Id. 1 The hearing was delayed due to a backlog of cases. Id. 2 Standard of Review A. Motion to Dismiss The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The dismissal for failure to state a claim upon which relief may be granted does not require defendant to establish Abeyond doubt@ that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007). Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Id. at 563. The court need not, however, accept unsupported legal allegations, see Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, see Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events, see United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). B. Motion for Summary Judgment 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) (emphasis in original). AThe 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 3 showing that there is a genuine issue for trial.=@ Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court should Aview 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 Aaffirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.@ Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (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)). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) the Supreme Court explained that in considering a motion for summary judgment, the Ajudge=s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.@ A dispute about a material fact is genuine Aif the evidence is such that a reasonable jury could return a verdict for the nonmoving party.@ Id. at 248. Thus, Athe judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.@ Id. at 252. The moving party bears the burden of showing that there is no genuine issue as to any material fact. No genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of his or her case as to which he or she would have the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, on those issues on which the nonmoving party has the burden of proof, it is his or her responsibility to 4 confront the summary judgment motion with an affidavit or other similar evidence showing that there is a genuine issue for trial. Analysis A. Failure to Exhaust The Prisoner Litigation Reform Act provides, in pertinent part: (a) Applicability of administrative remedies 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 other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. '1997e. As a prisoner, Plaintiff is subject to the strict requirements of the exhaustion provisions. It is of no consequence that Plaintiff is aggrieved by a single occurrence, as opposed to a general conditions of confinement claim. See Porter v. Nussle, 534 U.S. 516, 528 (2002) (no distinction is made with respect to exhaustion requirement between suits alleging unconstitutional conditions and suits alleging unconstitutional conduct). Exhaustion is also required even though the relief sought is not attainable through resort to the administrative remedy procedure. See Booth v. Churner, 532 U.S. 731, 741 (2001). A claim which has not been exhausted may not be considered by this court. See Jones v. Bock, 549 U.S. 199, 220 (2007). Administrative remedies must, however, be available to the prisoner and this court is obligated to ensure that any defects in administrative exhaustion were not procured from the action or inaction of prison officials. Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). The Fourth Circuit has addressed the meaning of Aavailable@ 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. 5 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 Ain 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 v. Bennette, 517 F. 3d 717, 725 (4th Cir. 2008). Thus, Plaintiff s claims must be dismissed, unless he can show that he has satisfied the administrative exhaustion requirement under the PLRA or that Defendants have forfeited their right to raise non-exhaustion as a defense. See Chase v. Peay, 286 F. Supp. 2d 523, 528 (D. Md. 2003). 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, 286 F. Supp. 2d at 530; 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 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 Court first considers Defendant s argument that the case should be dismissed in its entirely due to Plaintiff s failure to exhaust his administrative remedies. Defendant maintains that Plaintiff did not exhaust his administrative remedies as his appeal to the IGO was untimely. ECF No. 9, Ex. 2. Plaintiff avers that he timely noted his appeal (ECF No. 1), but it was not ruled upon for six months. ECF No. 16, Exs. 2B and 3. In light of the foregoing, the Court cannot say 6 that Plaintiff failed to exhaust administrative remedies and will consider the merits of Plaintiff s claims. B. Conditions of Confinement Conditions which "deprive inmates of the minimal civilized measure of life's necessities" may amount to cruel and unusual punishment. Rhodes v. Chapman, 452 U. S. 337, 347 (1981). However, conditions which are merely restrictive or even harsh, "are part of the penalty that criminal offenders pay for their offenses against society." Id. In order to establish the imposition of cruel and unusual punishment, a prisoner must prove two elements - that 'the deprivation of [a] basic human need was objectively sufficiently serious,' and that 'subjectively the officials acted with a sufficiently culpable state of mind.' Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (emphasis in original; citation omitted). These requirements spring from the text of the amendment itself; absent intentionality, a condition imposed on an inmate cannot properly be called punishment, and absent severity, such punishment cannot be called cruel and unusual. Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) citing Wilson v. Seiter, 501 U.S. 294, 298-300 (1991). To establish a sufficiently culpable state of mind, there must be evidence that a known excessive risk of harm to the inmate s health or safety was disregarded. See Wilson, 501 U. S. at 298. In other words, the test is whether the guards know the plaintiff inmate faces a serious danger to his safety and they could avert the danger easily yet they fail to do so. Brown v. North Carolina Dept. of Corrections, 612 F.3d 720, 723 (4th Cir. 2010), quoting Case v. Ahitow, 301 F.3d 605, 607 (7th Cir. 2002). Conduct is not actionable under the Eighth Amendment unless it transgresses bright lines of clearly-established pre-existing law. See Maciariello v. Sumner, 973 F. 2d 295, 298 (4th Cir. 1992). The objective prong of a conditions claim requires proof of an injury. "[T]o withstand 7 summary judgment on an Eighth Amendment challenge to prison conditions a plaintiff must produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions." Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993). Only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim regarding conditions of confinement. De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003). Demonstration of an extreme deprivation proscribed by the Eighth Amendment requires proof of a serious or significant physical or emotional injury resulting from the challenged conditions. See Odom v. South Carolina Dept. of Corrections, 349 F. 3d 765, 770 (4th Cir. 2003). Plaintiff has failed to allege, much less demonstrate, that he suffered any injury as a result of the alleged loss of out of cell activity for one month. C. Liberty Interest In the prison context, a liberty interest is created by the imposition of an Aatypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.@ Sandin v. Conner, 515 U. S. 472, 484 (1995). Following the reasoning of the Supreme Court in Sandin, the Court finds no liberty violation implicated in the decisions associated with Plaintiff s placement on administrative segregation pending his hearing on the inmate rule violation. It is not atypical for inmates to be placed on administrative segregation for any number of reasons. See Hewitt v. Helms, 459 U.S. 460, 468 (1983); Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997). The Court finds there is nothing in the record which shows that the nature of Plaintiff=s assignments to segregation comprised the atypical hardships contemplated by Sandin or Beverati. 8 Conclusion The dispositive motion filed on behalf of Defendant will be granted. A separate Order follow. /s/ PETER J. MESSITTE August 27, 2014 UNITED STATES DISTRICT JUDGE 9
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