Brightwell v. Hershberger et al, No. 8:2011cv03278 - Document 183 (D. Md. 2016)
Court Description: MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/31/2016. (sat, Chambers)
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Brightwell v. Hershberger et al Doc. 183 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : DAVID BRIGHTWELL : v. : Civil Action No. DKC 11-3278 : GREGG L. HERSHBERGER, et al. : MEMORANDUM OPINION Presently pending and ready for resolution are: (1) a motion for summary judgment filed by Defendants former warden of Roxbury Correctional Institution Gregg L. Hershberger, Lt. Gary Winters, Sgt. James Stotler, C.O. II Roy Hess, C.O. II Marvin Gillespie, motion and for C.O. leave II to Chaz file Younger a (“Defendants”) surreply by ; Plaintiff (2) a David Brightwell (“Plaintiff”); and (3) a motion for leave to file a supplemental Plaintiff. brief in opposition to summary (ECF Nos. 141; 172; 180). judgment by The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendants’ motion for summary judgment will be granted in part and denied surreply in will part; be Plaintiff’s granted in motion part and for leave denied in to file part; a and Plaintiff’s motion to file a supplemental brief will be denied. Dockets.Justia.com I. Background A. Factual Background1 Plaintiff has been an inmate in the Maryland prison system since 1997. (ECF No. 163-1 ¶ 2). In April 2009, he was moved to Roxbury Correctional Institution (“RCI”), where he was placed in Housing Unit 5. (Id. ¶ 4; ECF No. 163, at 7). According to Plaintiff, Housing Unit 5 was “an environment where correctional officers . . . were given virtually free reign . . . to harass inmates for no valid reason.” (ECF No. 163, at 13). Plaintiff began having trouble with the correctional officers at RCI very soon after his arrival. As the result of a prior injury, Plaintiff has an arm injury that led the medical staff at his previous place of incarceration to issue an order that he should be handcuffed in front of his body on a permanent basis. No. 164-1, at 247). (ECF Plaintiff asserts that Defendants and other correctional officers at RCI refused to agree to cuff him in the front. Plaintiff refused to be cuffed from behind, and, in turn, the correctional officers would not allow him access to various activities that required him to leave his cell. Nos. 163-1 ¶ interactions, 22; 163-2 Plaintiff ¶¶ 4, filed 7). As a complaints result (ECF of these through the Administrative Remedy Procedure (“ARP”) process with the Warden 1 Unless otherwise noted, the facts outlined here are undisputed or construed in the light most favorable to Plaintiff. 2 of RCI, Defendant Hershberger. (See, e.g., ECF No. 164-1, at 104, 107, 115, 127, 251, 346, 370). Plaintiff filed after being One of the first ARPs that transferred to RCI was against Defendant Winters on June 4, 2009, for informing him that he would have to be cuffed with his hands behind his back from now on. (Id. at 251). On October 1, 2009, Defendants attempted to move Plaintiff and another inmate into a shared cell. Plaintiff had long-standing (ECF No. 163-1 ¶ 29). emotional issues, paranoia, about being celled with another inmate. According refused to assaulted to Plaintiff, cooperate them. when during (Id. ¶ both the 29; he and transfer, ECF No. the including (Id. ¶ 16). other several 164-1, inmate Defendants at 265-67). Defendants tell a markedly different story of the October 1 encounter. They allege that Plaintiff attacked the other inmate while they attempted to transfer him into the cell and that any injuries sustained by Plaintiff were the result of fighting with the other inmate and their reasonable efforts to subdue the two fighting prisoners. (ECF No. 141-1, at 7). After the alleged assault, Plaintiff filed an ARP describing his version of the incident and suggesting that Defendant Winters was behind the transfer of the other inmate and, in turn, the assault, because of the numerous administrative complaints Plaintiff had filed, including, in particular, the one 3 against Defendant Winters. (ECF No. 164-1, at 265-67). mentioned in Hershberger the assigned interviewing Even though Defendant Winters was complaint, Winters Plaintiff and it to appears that investigate Defendant this Defendant ARP. Gillespie, After Defendant Winters found that there was “no merit to [Plaintiff’s] claims” and recommended dismissal of the ARP. (Id. at 260). On October 16, Plaintiff was moved to a different cell in Housing Unit 5 where he was told he would have a cellmate. Plaintiff again stated that he would not share a cell. 163-1 ¶ 33). According to Plaintiff and his (ECF No. witnesses, Defendants dragged him up the stairs, put him into the new cell, and physically beat him. (Id.; ECF No. 163-2 ¶ 8). filed an ARP for this purported attack as well. at 298). October Plaintiff (ECF No. 164-1, Apparently believing this ARP to be related to the 1 incident, Defendant Hershberger complaint as having been already addressed. dismissed (Id.). this Plaintiff appealed this decision up to a hearing with an administrative law judge (“ALJ”), who, after distinguishing between the two incidents, ruled on the merits that Plaintiff’s witnesses, “while supportive of [his version], did not offer convincing 4 testimony to bolster [his] rendition of events.” (ECF No. 141- 2, at 155-65).2 From that October until February 2011, Plaintiff continued to face a litany of smaller issues related to his refusal be cuffed behind his body. haircuts, showers, He filed numerous ARPs alleging missed lunches, and physical therapy sessions. (See, e.g., ECF No. 164-1, at 104, 107, 115, 127, 251, 346, 370). In cellmate, various December and 2010, Plaintiff issues Mr. Darnell encouraged Owens correctional officers. had Owens him with to the became Plaintiff’s submit ARPs Housing (ECF No. 163-1 ¶¶ 41-42).3 over Unit 5 According to the cellmates, Defendants later offered a “truce” to them if they agreed to stop filing ARPs. (Id. ¶ 41; ECF No. 163-3 ¶ 4). But after hearing what they believed to be a beating in a cell near theirs, Defendant Plaintiff Stotler and wrote notes another on February Housing Unit 4, 5 2011, to Sergeant “protesting” the beatings and saying, “[F]rom now on when you want to jump on any prisoner illegally, [then] come and beat and jump on me also. Let it be known, that if you all want to jump, 2 The ALJ found it noteworthy that Plaintiff had filed a sick call slip on October 17 but had only mentioned normal pains, nothing to do with an assault. (ECF No. 141-2, at 163). 3 The record indicates that Mr. Owens had not filed a single ARP prior to moving in with Plaintiff in December 2010, but thereafter filed four in his first month in Housing Unit 5. (ECF No. 164 ¶ 2). 5 beat, and kill a prisoner illegally [then] let it be me.” (ECF No. 164-2, at 91-95). Plaintiff avers that Defendants assaulted him for a third time the day after he delivered these notes. On February 5, Defendants stopped Plaintiff after his shower, pulled him into a cell, and assaulted him. (ECF No. 163-1 ¶¶ 46-47). Defendants deny that they attacked Plaintiff that day and contend that nothing unusual at all happened on February 5. (ECF No. 141-1, at 35). B. Procedural Background Maryland’s administrative remedy procedures are discussed in more alleged detail in assault administrative the in exhaustion February complaints. section 2011, First, below. Plaintiff he sent a After filed letter the three to the Internal Investigative Unit (“IIU”), an independent group that investigates employee misconduct. Second, Plaintiff sent a Grievance Office (“IGO”), available in ARP the (ECF No. 164-2, at 127-29). grievance the directly highest process. (Id. level at to the of adjudicator 135-36). Inmate The IGO dismissed his complaint for having not previously exhausted the lower levels of the ARP process. about the incident. (Id.). Third, he filed an ARP Because ARPs had to be received and signed by on-duty officers, who Plaintiff says refused to accept his ARPs, he mailed this ARP directly to Defendant Hershberger as 6 Warden. (ECF eventually No. 163-1 received the ¶ 52). mailed The complaint because it was not properly signed. ARP coordinator dismissed the who ARP (ECF No. 164-2, at 139). Plaintiff appealed this dismissal first to the second level of the ARP procedure, the Commissioner of Corrections - who affirmed the decision - then, up to the IGO - which decided to hold a hearing on the case in front on an ALJ. 153). That hearing occurred on November (Id. at 1389, 2011, Plaintiff’s witnesses were not present when he arrived. but When the ALJ told Plaintiff that the institution would attempt to bring one of those witnesses, Mr. Owens, to the hearing, but that he had to present his case with or without the witnesses, Plaintiff refused to proceed. (Id. at 193-201). The next day, more than a month before the ALJ issued her opinion, Plaintiff, representing himself, filed the instant suit in federal court seeking damages and injunctive violations of state tort law and 42 U.S.C. § 1983. relief for (ECF No. 1, at 4). He filed his First Amended Complaint on December 21, 2011. (ECF No. 6-1). Defendants’ motion On February 26, 2013, this court granted to dismiss in part, authorized the appointment of counsel for Plaintiff, and directed the newlyappointed counsel to file a Second Amended Complaint. 7 (ECF Nos. 69, at 11-16; 70).4 Plaintiff filed a Second Amended Complaint on July 15, 2013, asserting claims under (1) 42 U.S.C. § 1983 for violations of his First, Eighth, and Fourteenth Amendment rights; (2) the Maryland Constitution; and (3) state laws for battery, negligence, distress. (ECF and No. intentional 80). In the infliction Second of Amended emotional Complaint, Plaintiff alleged the October 1 and 16, 2009 assaults for the first time. close of summary (Id. ¶¶ 11-17). discovery, judgment. On October 23, 2015, after the Defendants (ECF No. filed 141). opposition, and Defendant replied. 4 the pending Plaintiff motion responded for in (ECF Nos. 163; 171). The parties dispute which “constitutional claims” from Plaintiff’s Second Amended Complaint survived the prior motion to dismiss. (ECF Nos. 141-1, at 39-41; 163, at 55-56; 171, at 19). By “constitutional claims,” the parties seem to be arguing over specific constitutional violations that would form the bases of Plaintiff’s claims under 42 U.S.C. § 1983. Plaintiff concedes the court foreclosed any claims based on conditions of confinement, verbal abuse, and denial of medical care (see ECF No. 69, at 19), but argues that his claims based on retaliation in violation his First Amendment rights are new. (ECF No. 163, at 56). Plaintiff’s First Amended Complaint suggested that Defendants retaliated against him by denying him showers after the February 2011 assault. (ECF No. 6-1 ¶ 28). Emphasizing that the alleged conduct did not “demonstrate any adversity” nor show that the conduct was “causally connected to the exercise of Plaintiff’s protected rights,” the court dismissed retaliation as a basis for a claim. (ECF No. 69, 16). Plaintiff now contends that the 2011 assault was a result of his repeated submission of numerous ARPs against the RCI correctional officers prior to February 5, 2011. (Id. ¶¶ 20-24). This retaliation argument, based on a different harm at a different time, was not part of the previous dismissal. 8 C. Non-dispositive Motions 1. Motion for Leave to File a Surreply After Defendants filed their reply, Plaintiff moved to file a surreply. (ECF No. 172). Under Local Rule 105.2(a), “[u]nless otherwise ordered by the Court, surreply memoranda are not permitted discretion to to disfavored. be filed.” allow Chubb & a Although surreply, Son v. C.C. F.Supp.2d 666, 679 (D.Md. 2013). “when the presented party’s moving to reply.” would court for Khoury the party v. district surreplies Complete court are has generally Servs., LLC, 919 A surreply may be permitted be the unable first Meserve, (D.Md. 2003) (citation omitted). a to time 268 contest in the F.Supp.2d matters opposing 600, 605 By contrast, “[a] motion for leave to file a surreply may be denied when the matter addressed in the reply is not new.” Marshall v. Capital View Mut. Homes, No. RWT–12–3109, 2013 WL 3353752, at *3 (D.Md. July 2, 2013) (citation omitted). Plaintiff argues that a surreply is necessary to address Defendants’ arguments with regard to judicial tolling, equitable tolling, and the exclusion of an affidavit by a previously unidentified prisoner, Shabazz Watkins, who witnessed a part the 2011 assault. (ECF No. 171, at 2). Plaintiff’s first two arguments fail because both of these legal issues were raised by 9 Plaintiff himself in his opposition brief and were not new in Defendants’ reply. (ECF No. 163, at 40-42). Plaintiff’s third reason is sufficient. Defendants argued in their reply brief that Mr. Watkins’s affidavit should not be considered because Plaintiff did not name him as a witness in his interrogatories until he updated in February 2016, months after the close of discovery. (ECF No. 171, at 17-18). Defendants do not contest that they made this argument for the first time in their reply. Instead, they correctly point out that they could not have made this argument in their opening brief because they did not know or expect that Plaintiff would include a statement from a new witness that he obtained months after the close of discovery. (ECF No. 173, at 2). Because Plaintiff was unable to respond to this argument, Plaintiff’s motion to file a surreply is granted with respect to these arguments. 2. Motion to Supplement On July 11, 2016, Plaintiff moved to file a supplemental brief. (ECF necessary No. because 180). of (1) He argues new that deposition his supplement evidence taken is from Defendant David Scott Miller after briefing was complete and (2) the June 6, 2016, decision by the Supreme Court of the United States in Ross v. Blake, 136 10 S.Ct. 1850 (2016). Neither warrants asserts supplemental that demonstrates the deposition that (Id.).5 briefing. there testimony is a First, from dispute Plaintiff Defendant of fact Miller “concerning Defendants’ harassment of [Plaintiff], which was the basis for [Plaintiff’s] administrative complaints.” 5). at (ECF No. 180-1, at Plaintiff emphasizes that motive is material (ECF No. 182, 3), but the relevant Defendants’ motive for motive filing motive ARPs. for provides a framework the for putative Second, our on summary assault, as analysis judgment not discussed of is Plaintiff’s below, whether Ross Plaintiff exhausted his administrative remedies, but, as Defendants point out in their opposition to the supplemental brief, Plaintiff made all of the relevant substantive arguments in his opposition brief. II. (ECF No. 181, at 4). The motion is therefore denied. Motion for Summary Judgment A. Standard of Review A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, 5 Inc., 477 U.S. 242, 250 Defendant Miller does not appear to be a party to this motion to dismiss (ECF No. 141, at 1), but Plaintiff argues that his testimony bears on the motion with regard to the other Defendants. 11 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). A dispute about a material fact is genuine “if the evidence is such that a nonmoving reasonable party.” jury could a Lobby, Liberty return verdict 477 U.S. at for the 249. In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom “in the light most favorable to the party opposing the motion,” Matsushita Elec. Indus. Co. (quoting v. Zenith United Radio Corp., v. Diebold, States 475 U.S. Inc., 574, 369 587 U.S. (1986) 654, 655 (1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005), but a “party cannot create a genuine dispute of material fact inferences.” through mere speculation or compilation of Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted). To prevail on a motion for summary judgment, the moving party generally bears the burden of showing that there is no genuine dispute as to any material fact. No genuine dispute of material fact exists, however, if the nonmoving party fails to make a sufficient showing on an essential element of his case as to which he or she would have the burden of proof. U.S. at 322–23. nonmoving party Therefore, has the on those burden issues of proof, Celotex, 477 on it which is the his responsibility to confront the summary judgment motion with an “affidavit or other evidentiary 12 showing” demonstrating that there is a genuine issue for trial. See Ross v. Early, 899 F.Supp.2d 415, 420 (D.Md. 2012), aff'd, 746 F.3d 546 (4th Cir. 2014). “Ordinarily, a defense based on the statute of limitations must be raised by the defendant through an affirmative defense, see Fed.R.Civ.P. affirmative Praxair, 8(c), defense Inc., 494 and rests F.3d the on burden the 458, 464 of establishing defendant.” (4th Cir. Goodman 2007); Gough the v. v. Calvert Cnty. Detention Ctr., No. DKC-15-3095, 2016 WL 3181797 at *3 (D.Md. June 8, 2016). Failure to exhaust administrative remedies is also an affirmative defense, Jones v. Bock, 549 U.S. 199, 216 (2007), and “[defendants] bear the burden of proving that [Plaintiff] had remedies failed to take advantage.” available to him of which he Blake v. Ross, 787 F.3d 693, 697 (4th Cir. 2015) vacated on other grounds Ross v. Blake, 136 S.Ct. 1856 (2016). summary Thus, Plaintiff’s claims will be dismissed on judgment only “if Defendants raise the affirmative defense and also prove that Plaintiff has failed to exhaust available remedies.” McMillian v. Caple, No. CV DKC-15-1882, 2016 WL 4269054, at *5 (D. Md. Aug. 15, 2016). B. Statute of Limitations Defendants first argue that Plaintiff’s 2009 assault claims are time-barred. Plaintiff first included these claims in his Second Amended Complaint in July 2013. 13 The applicable statute of limitations limitations for period a for § 1983 claim personal comes injuries from in a the state’s tort action, Wilson v. Garcia, 471 U.S. 261, 266-69, 276 (1985); Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 955 (4th Cir. 1995), which, in Maryland, is the general three-year statute of limitations, Md. Code Ann., Cts. & Jud. Proc. § 5-101; Nasim, 64 F.3d at 955. Plaintiff admits that he first pled these assaults after the end of this limitations period, but argues that the claims are not barred because: (1) they relate back to his original complaint; (2) the statute of limitations should have been tolled while he pursued his administrative remedies; and (3) the court should apply equitable tolling to either the period between when Plaintiff moved for appointed counsel and when his current counsel was appointed (November 15, 2011, to May 14, 2013); or between when the court ordered appointment of counsel and when appointed counsel was assigned and able to submit the Second Amended Complaint (February 26, 2013, to July 15, 2013). (ECF No. 163, at 36). 1. Relation Back The Federal Rules of Civil Procedure provide that an amendment can relate back to the date of the original pleading if the amendment “asserts a claim . . . that arose out of the conduct, transaction, or occurrence set out - or attempted to be 14 set out - in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B). Courts will not allow a plaintiff to assert “a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” U.S. 644, 650 (2005). Mayle v. Felix, 545 Instead, the new claim must share a “factual nexus” with the claims in the original complaint, and the original complaint must have put the defendants on notice of Grattan v. Burnett, 710 F.2d 160, 163 (4th Cir. the claim. 1983). Plaintiff suggests that the 2009 assaults are part of the same “pattern of misconduct involving most of the defendants” and therefore meet Rule 15(c)’s standard. 163, at 37). This argument is not persuasive. same (ECF No. Courts have rejected relation back for similar patterns of behavior in the context of F.Supp.3d other 748, torts. 757-58 See (D.Md. Doe 2015) v. Salisbury (citing Univ., English 123 Boiler & Tube, Inc. v. W.C. Rouse & Son, Inc., 172 F.3d 862, No. 97-2397, 1999 WL 89125, at *1-3 (4th Cir. 1999) (unpublished table decision) (holding that new defamatory statements were part of the same “campaign to disparage [the plaintiff]” against a business competitor but could not be added by relation back because each act of defamation is a separate tort)). As Defendants point out, the new claims that shared a factual nexus in Grattan were part of the same “ultimate wrong” that led the 15 plaintiff to bring his suit. 710 F.2d at 163; see also Farb v. Fed. Kemper Life Assur. Co., 213 F.R.D. 264, 267-68 (D.Md. 2003) (holding that an amended insurance claim would relate back where a plaintiff alleged the same entitlement to the proceeds of a single insurance policy under a different theory). Here, Plaintiff has presented two new claims with all new facts that are equivalent to the 2011 assault. These alleged assaults occurred more than sixteen months prior to the 2011 assault and by different sets of correctional officers. 20; 171, at 4). (ECF Nos. 141-1, at Relation back in a case like this would “leave the statute of limitations open-ended for additional acts . . . even though these acts involved different parties on different dates.” 2. English Boiler & Tube, 1999 WL 89125, at *3. Tolling Plaintiff’s point out, even tolling if the arguments court also accepted fail. As Defendants Plaintiff’s judicial tolling argument, he would not be within the limitations period unless the court equitably tolled the period for an additional two months. To receive equitable tolling, a plaintiff bears the burden of showing “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” 649. Holland, 560 U.S. at Plaintiff cites to a single case, White v. Cooper, 55 F.Supp.2d 848 (N.D.Ill. 1999), to argue that the statute of 16 limitations should be equitably tolled to cover either the full period between when he requested appointment of counsel on November 15, 2011, and when his current counsel was appointed on May 14, 2013, or, alternatively, the period between when counsel appointment was ordered on February 26, 2013, and when counsel was required to file the Second Amended Complaint on July 15 of that year. (ECF No. 163, at 41-42). In White, the court opined that prior to the appointment of counsel, the inmate plaintiff, who did not know the identity of his assailants, “was at a particular disadvantage” in trying to uncover the identities of the unknown tortfeasors without the help of pretrial discovery. 55 F.Supp.2d at 856. Because he had made reasonable efforts to discover these identities on his own, the court found that the lack of counsel qualified as extraordinary circumstances allowed him to amend his complaint to add new defendants. at 856-57. Id. Plaintiff’s Second Amended Complaint seeks to add new claims, not new defendants. Plaintiff and cannot tie his lack Unlike the plaintiff in White, of assert these 2009 assault claims. counsel to his failure to Put another way, Plaintiff knew he had been assaulted in 2009, but he offers no explanation as to why his lack of counsel prevented him from including these assaults when he filed his original complaint. Indeed, Plaintiff admitted that he was aware that he could sue based on the 2009 assaults and simply let Defendants “slide” before he 17 “got tired” of the problems in 2011. Plaintiff has thus failed to show (ECF No. 141-2, at 51). that his lack of counsel constitutes an extraordinary circumstance that stood in the way of his timely filing of these claims, and the limitations period will not be tolled.6 Plaintiff’s October 16, assault 2009 claims incidents based are on the therefore October 1 and time-barred. The motion for summary judgment will be granted for these claims. C. Administrative Exhaustion Defendants next claim that Plaintiff failed to exhaust his administrative remedies as a defense to Plaintiff’s claims based on the 2011 (“PLRA”) assault. provides, in The Prisoner pertinent Litigation part, “No action Reform Act 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, until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e. or other correctional facility Exhaustion under the PLRA is mandatory, and courts may not excuse a failure to exhaust “irrespective of any ‘special circumstances.’” Ross, 136 S.Ct. at 1856. Exhaustion is a precondition to filing suit, and exhausting administrative 6 Equitable tolling also requires an examination of the diligent pursuit of legal rights. Holland, 560 U.S. at 649. Plaintiff letting Defendants “slide” on the 2009 assaults similarly shows a lack of diligence. (ECF No. 141-2, at 51). 18 remedies after a complaint is filed will not prevent a case from being dismissed for failure to exhaust. Kitchen v. Ickes, 116 F.Supp.3d 613, 624-25 (D.Md. 2015). The only limitation on the PLRA’s exhaustion requirement is that the remedy must be “available.” 42 U.S.C. § 1997e. Being “available” requires both that the remedial procedure exist in law and that, in actual practice, it is “‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross, 136 S.Ct. 731, at (2001)). 1859 (citing Booth v. Churner, 532 U.S. 738 The Supreme Court has articulated three circumstances in which an administrative remedy is not “available” despite being officially on the books: (1) when the process operates as a “simple dead end” with no actual possibility of relief to prisoners; (2) when the process is so opaque or confusing that it is “essentially ‘unknowable’ - so that no ordinary prisoner can make officials sense thwart of what it inmates demands;” from and using the (3) when process machination, misrepresentation, or intimidation. prison through Id. at 1859- 60. In Maryland, prisoners can bring a complaint against correctional officer through three administrative paths. primary method is the ARP. a The Department of Correction (“DOC”) directives provide that prisoners may use the ARP process for most types of grievances, including those relating to the use of 19 force. (ECF No. 164-1, at 144). A prisoner begins the ARP process by filing a request for an administrative remedy with the Warden of the prison in which he is incarcerated. If his request is denied, the prisoner has ten calendar days to file an appeal with the Commissioner of Correction. If this appeal is denied, the prisoner then has thirty days in which to file an appeal to the Executive Director of the IGO. See Md. Code Ann., Corr. Serv. §§ 10–206, 10–210; Md. Code Regs. 12.07.01.03. second path under Maryland law allows a prisoner grievance directly with the IGO in some cases. Ann., Corr. Servs. § 10–206(a). The to The file a See Md. Code third administrative process that a prisoner may pursue is an investigation of the incident by the IIU. IIU oversees See Md. Code Regs. 12.11.01.09(E). disciplinary investigations into allegations employee misconduct, including the use of excessive force. Code Regs. 12.11.01.05(A)(3). complaint with the IIU, the The of Md. Although a prisoner may file a IIU does not have provide any relief to the prisoner himself. authority to Md. Code Regs. 12.11.01.09(E); 12.11.01.04. The relationship among these various paths to relief is complicated. relief For example, a prisoner may file a request for directly with the IGO, but the IGO has issued a regulation requiring inmates to use the standard ARP process if that process is available to 20 a grievant in a particular Md. Code Regs. 12.07.01.02D.7 situation or occurrence. The availability of one process thus closes the door to another. Similarly, according to DOC directives, a warden receiving an ARP complaint must dismiss the complaint when he “determine[s] that the basis of the complaint is the same investigation under the authority of the [IIU].” 1, at 9 (citing DCD 185-003)). The basis of an (ECF No. 164- complexity of the interactions among these three processes led the Supreme Court to question whether prisoners in Maryland truly had “available” remedies under the PLRA in a recent decision. Ross, 136 S.Ct. at 1860-62. Here, Defendants contend that Plaintiff failed to exhaust his administrative remedies in two ways. First, by refusing to participate in his November 9 hearing in front of the IGO, he failed to “us[e] all steps that the agency holds out, and do[] so properly (so that the agency addresses the issues on the merits).” (ECF No. 141-1, at 20 (citing Woodford v. Ngo, 548 U.S. 90-91 81, (2006))). Second, Defendants assert that Plaintiff “jumped the gun” by filing his federal suit the day after the hearing on November 10 because the ALJ had not yet issued her final determination. (ECF No. 141-1, at 21). Both of Defendants’ arguments stemming from the November 9 hearing 7 The IGO may require prisoners to exhaust other procedures where the procedures are (1) applicable to the grievance and (2) “reasonable and fair.” Md. Code Ann., Corr. Servs. § 10–206(b). 21 rest on the notion that Plaintiff still remedies available to him at that hearing. had administrative Plaintiff counters, inter alia, that opening the IIU investigation foreclosed the ARP process, and, therefore, he had no further remedies that were actually available on November 9. (ECF No. 163, at 38-40). Defendants try to undermine Plaintiff’s IIU theory in two ways. First, they cite to Blake v. Maynard, No. 09-02367-AW, 2012 WL 1664107 (D.Md. May 10, 2012) rev’d sub nom. Blake v. Ross, 787 F.3d 693 (4th Cir. 2015), vacated, 136 S.Ct. 1850, in support of the proposition that a Plaintiff whose complaint is subject to an IIU investigation loses his ability to file an ARP complaint, but must still file a grievance directly with the IGO. (ECF No. 141-1, at 27-28). The court in Blake v. Maynard said as much: In short, notwithstanding their interrelation, the IGO grievance procedure is at once legally and practically distinct from the ARP process. . . . True, the ARP process does not apply to complaints with ‘the same basis as an investigation under the authority of the . . . IIU.’ In other words, if the IIU is investigating an incident with the same factual underpinning as a prisoner’s complaint, the prisoner may not submit the complaint to the ARP process, including appeals to the Commissioner. . . . The DOC’s directives do not, however, spare prisoners from satisfying the IGO grievance process. . . . Nor could the DOC’s directives excuse prisoners from exhausting the IGO grievance process in this case’s circumstances. As outlined above, Maryland law vests primary responsibility of fielding 22 inmate grievances with the IGO. The IGO, in turn, has issued a regulation requiring grievants to properly exhaust the ARP only if the ARP applies to a particular situation or occurrence. Here, in view of DCD 185– 003.VI.N.4, the ARP does not apply to Blake’s complaint. As a result, the IGO grievance process applies to Blake’s complaint. 2012 WL 1664107 at *5-6 (internal citations omitted). Both the United States Court of Appeals for the Fourth Circuit and the Supreme Court, however, have called this holding into question on appeal. Ross, 136 S.Ct. at 1860 (“The facts of this case raise questions about whether, given these principles, Blake had an ‘available’ administrative remedy to exhaust.”); Blake, 787 F.3d at 698 (holding that the plaintiff was not required to exhaust his remedies, in part because he was “justified” in believing that he had exhausted administrative remedies “because the prison’s remedial system was confusing”). contradicted district the that decisions an IIU exhaustion requirement. of That holding also several other investigation fully judges in this satisfies the See Kitchen, 116 F.Supp.3d at 625 (“The court is aware that once a claim of excessive force is referred to IIU[,] no further administrative remedy proceedings may occur.”); see also Shiheed v. Shaffer, No. GLR-14-1351, 2015 WL 4984505, at *3 (D.Md. Aug. 18, 2015); Manzur v. Daney, No. PWG14-2268, 2015 WL 1962182, at *3 (D.Md. Apr. 29, 2015); Chew v. Green, No. DKC-13-2115, 2014 WL 4384259, at *13 (D.Md. Sept. 2, 23 2014); Henderson v. Simpkins, No. CCB-13-1421, 2014 WL 3698878, at *6 (D.Md. July 24, 2014); Bogues v. McAlpine, No. CCB-11-463, 2011 WL 5974634, at *4 (D.Md. Nov. 28, 2011); Williams v. Shearin, No. L-10-1479, 2010 WL 5137820, at *2 n.2 (D.Md. Dec. 10, 2010); Thomas v. Bell, No. AW-08-2156, 2010 WL 2779308, at *4 (D.Md. July 7, 2010). Because there may be some number of cases in which the IGO would hear grievances but the ARP process would not apply, see Ross, 136 S.Ct. at 1860, it is possible that an IIU investigation, which prevents further proceedings “within the ARP process,” remedies in all cases. would not exhaust a prisoner’s Because Plaintiff’s complaint would have been subject to the ARP process absent the IIU investigation here, however, this is not such a case. Second, Defendants assert that the IIU does not fully cut off the ARP process. (ECF No. 141-1, at 26). Rather, they suggest, because the procedural dismissal of an ARP complaint based on the IIU investigation that is required under DCD 185003 can be appealed by the inmate, the procedural dismissal does not meet the exhaustion requirement until the completion of the appeals process. This argument runs counter to all of the decisions cited above, including Blake v. Maynard, and common sense. Where the relevant administrative rules provide clear grounds for a procedural dismissal of the complaint, it seems disingenuous to suggest that a prisoner ought to appeal such a 24 dismissal even if he knows it was rightly decided and has no legal or factual arguments inappropriately dismissed. confusing that . . . that the complaint was At best, this process would be “so no reasonable prisoner can use [it].” Ross, 136 S.Ct. at 1859. At worst, this is the type of “game- playing” the that administrative “thwarts process.” effective Id. at invocation 1862. In of either the case, Plaintiff has established that such an administrative remedy was not “available” to him. Defendants make a last ditch effort to argue that because Plaintiff attempted to pursue the IGO and ARP processes, received the November 9 hearing, and refused to participate in it, he has failed to exhaust. (ECF No. 141-1, at 24-26). Plaintiff, they say, went forward with the IGO and ARP processes because he knew that he had not exhausted his remedies. Defendants present no cases suggesting that an inmate who has legally exhausted his administrative remedies has the ability to undo his exhaustion by way of other attempts at relief. Even if Plaintiff believed that he had to go through the ARP or IGO grievance processes, his subjective belief about whether he had or had not exhausted his remedies does not bear on whether he has successfully done so. See Ross, 136 S.Ct. at 1858 (emphasizing that the PLRA’s strict standards take no account of whether “a prisoner makes a reasonable mistake about the meaning 25 of a prison’s grievance procedures”). If anything, the fact that Plaintiff continued to pursue the ARP process demonstrates how confusing Maryland’s procedures are. Because the existence of an IIU investigation shuts down the ARP process and thus exhausts administrative remedies for complaints that would typically fall within the ARP jurisdiction, Plaintiff met his burden to exhaust upon the initiation of that investigation.8 Therefore, Defendants’ exhaustion defense fails. D. Merits 1. Supervisory Liability for Defendants Hershberger and Winters Defendants next seek summary judgment on Plaintiff’s claims against Defendants Defendants”). under a Hershberger and Winters (“Supervising Plaintiff argues that these Defendants are liable theory of supervisory liability. To establish supervisory liability in a § 1983 action, a plaintiff must show that: (1) the supervisor had actual or constructive knowledge that his subordinates were engaged in conduct that posed “a pervasive and unreasonable risk” 8 of constitutional injury to Although the parties do not argue as much, the court recognizes that there might be policy concerns that prisoners could bypass the normal administrative processes by filing for an IIU complaint and immediately filing in federal court. To the extent that this is possible, it is dependent on the current directive that dismisses other administrative actions when subject matter is the same. If, for example, the administrative proceedings were stayed pending an IIU investigation, no such problem would exist. 26 citizens like the plaintiff; (2) the supervisor’s response to that knowledge was so inadequate as to demonstrate “deliberate indifference to or tacit authorization of the alleged offensive practices;” between and the constitutional (3) there was supervisor’s injury an “affirmative inaction suffered by and the causal the link” particular plaintiff. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal quotation marks and citations omitted). The first element has three sub- parts: (a) the supervisor’s knowledge of (b) conduct engaged in by a subordinate (c) where the conduct poses “a pervasive and unreasonable risk of constitutional injury to the plaintiff.” Id. Establishing a pervasive and unreasonable risk of harm requires evidence that the conduct is widespread or has occurred on several different occasions. Plaintiff into evidence asserts that that filed he Id. the “plethora between of June ARPs” 2009 and submitted May 2011 creates a dispute of fact over whether Supervising Defendants had knowledge of the risk that their employees posed to him. As Defendants point out, these ARPs were almost all related to relatively minor issues – missed showers and haircuts, skipped lunches, allegedly violation, refusal improper to sign write-ups other of Plaintiff ARPs, and for skipped rule or rescheduled back therapy sessions – that would not establish a risk of constitutional injury. These ARPs, viewed cumulatively, 27 might show pervasive other Defendants disagreement but would not between give Plaintiff Supervising and the Defendants actual or constructive notice that the complained of employees might be assault. creating a pervasive and unreasonable risk of an Plaintiff’s prior assault ARP might have provided such notice, but the Fourth Circuit has made clear that a plaintiff “assumes a heavy burden of proof in establishing deliberate indifference” that cannot be satisfied “by pointing to a single incident or isolated produced any incidents.” evidence Id. supporting his Plaintiff not that assertion has the correctional officers in Housing Unit 5 were habitually abusive in a way that would provide actual or constructive knowledge to Supervising therefore Defendants. granted with The motion respect to for summary supervisory judgment is liability of Defendants Hershberger and Winters. 2. Plaintiff’s 2011 Claims Against Defendants Stotler, Hess, Gillespie, and Younger. Finally, Defendants move for summary judgment in favor of all Defendants who purportedly committed the 2011 assault. Although Plaintiff and Defendants certainly dispute the material facts in this case, Defendants argue that no reasonable jury would return a verdict in Plaintiff’s favor. 35). (ECF No. 141-1, at On a motion for summary judgment, “[i]t is the affirmative obligation of the trial judge to prevent factually unsupported 28 claims and defenses from proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (citing Celotex, 477 U.S> at 323-24). The inquiry is “not whether [the judge] thinks that the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson, 477 U.S. at 252. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it,” the court need not put the case to a trier of fact. U.S. 372, 380 (2007). The evidence Scott v. Harris, 550 supporting Plaintiff’s version of events includes his own statements in the proceedings he filed after the purported assault, a declaration from Mr. Owens, medical a declaration experts, and from Mr. Watkins, testimony the IIU investigation from report, his which includes references to his injuries and apparent corroboration of his story by inmate Brian McKenzie. (See ECF Nos. 164-2, at 131-140, 229; 163-3; 163-4; 141-2, at 94, 106). Defendants contend that the record contradicts Plaintiff’s version of the February 5 events in a number of ways. they suggest that Plaintiff’s knee injuries were preexisting injuries that were a result of kneeling while praying. although Plaintiff avers that five different First, Second, correctional officers punched, kicked, and stomped him, the IIU investigator 29 noted relatively minor injuries. (ECF No. 141-2, at 88, 93). Third, they argue that Mr. Owens’ affidavit (and presumably the statement from Mr. McKenzie) should be disbelieved because the IIU investigator found them not credible. Fourth, they contend that if a beating occurred, other inmates would have reported it. Finally, Defendants suggest that the court should not consider Mr. Watkins’s affidavit because Plaintiff did not take the affidavit or submit it to the record until months after the close of discovery. The parties Plaintiff’s knee present significant injuries. The nurse evidence who saw regarding Plaintiff on February 7 said that his knee injury appeared to be more than 48 hours old. Plaintiff (ECF had No. 141-2, previously 2003, and 2005. at 94). complained of They knee point issues (ECF No. 141-2, at 108-110). out in that 2002, One of the doctors reviewing Plaintiff’s knee complaints and the statements of the other medical experts considered the knee injury to be a result of frequent kneeling to pray and not the result of a trauma. (Id. at 110, 188). Plaintiff has produced counter evidence from his own physician who lamented the lack of good treatment records, but concluded that Plaintiff suffered an “internal derangement to his left knee on or about 02/05/2011 as a result of an assault.” examiner also concluded (Id. at 106). that 30 An independent medical Plaintiff had an internal derangement in the knee. (ECF No. 164-2, at 229). Moreover, in arguing that Plaintiff’s injuries were not consistent with a beating at the hands of five correctional officers, Defendants cite to medical expert’s statement that Plaintiff’s knee injury was only 3cm, but that 3cm evaluation sixteen days after the alleged injury. came on February 21, (ECF No. 141-2, at 185). On February 7, the attending nurse referred to the knee injury as a “large scabbed area.” With injuries, regard to Defendants investigator’s (Id. at 94). the seriousness place too determinations. much As of Plaintiff’s weight Plaintiff on points other the IIU out, the investigator has no medical expertise upon which to evaluate the relationship between Plaintiff’s injuries and his version of the events. (ECF No. 163, at 54). Although the IIU investigator suggested his injuries should have been more substantial, it had been two days since the alleged assault. At least some evidence supports Plaintiff’s claim. The same nurse who said Plaintiff’s knee than injury appeared more 48 hours old said that the bruises on his arm, cut inside his lip, and scratches on his hands appeared to be 48 hours old. (ECF No. 141-2, at 94). Defendants similarly rely on the IIU investigation to rebut the affidavits of other witnesses. The IIU investigator said that Plaintiff’s story was not credible despite being supported by both Mr. Owens and Mr. McKenzie. 31 (Id. at 88-89). Such credibility determinations are reserved for fact finders in judicial proceedings, and it would be especially strange here to reject the content of Mr. Owens written affidavit simply because the IIU investigator found that he lacked credibility in an oral interview years earlier, the details of which are sparsely recorded. Defendants’ argument that the record would show ARPs by inmates other unpersuasive. if there had been an assault is also They have produced no evidence suggesting that assaults typically result in ARPs by third-party inmates, and Plaintiff has produced statements that, if deemed credible, suggest that Defendants actively attempted to dissuade prisoners from filing ARPs. Finally, Defendants argue that the Watkins Affidavit should not be considered because Plaintiff did not identify Mr. Watkins as a witness until his Response in Opposition to this motion in February 2016, seven months after the close of discovery. No. 171, at 17). (ECF Under Fed.R.Civ.P. 26(e)(1)(A), parties have a duty to update responses to interrogatories in a timely manner. Defendants point out that Mr. Watkins’s affidavit is signed and dated December 31, 2015, but that Plaintiff did not supplement his interrogatory to notify them about Mr. Watkins until two months later. Plaintiff (ECF argues interrogatory that No. he regarding 171, at 17-18). previously witnesses 32 In responded by noting his to surreply, Defendants’ that “other, unidentified inmates on level 2 of C-Tier may have witnessed all or part of the incident.” emphasized that this (ECF No. 172-1, at 4, 10). information was otherwise He also available to Defendants, as he was able to find Mr. Watkins as a result of information that they produced to him on March 20, 2015, identifying the other inmates on level 2 of C-Tier on the date of the purported assault. Because Defendants were (ECF Nos. 173, at 2; 175, at 2). aware that Mr. Watkins might have witnessed the incident, the court will not exclude Mr. Watkins’s statement. Defendants have not demonstrated that Plaintiff’s evidence is so blatantly contradicted by the record that no reasonable jury could return a verdict in Plaintiff’s favor. Accordingly, the motion for summary judgment fails. III. Conclusion For the foregoing reasons, Defendants’ motion for summary judgment will be granted in part and denied in part; Plaintiff’s motion for leave to file a surreply will be granted in part and denied in part; and Plaintiff’s motion to file a supplemental brief will be denied. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 33
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