J. FREDERICK MOTZ, District Judge.
Pending are defendants' motion to dismiss or for summary judgment (ECF No. 22) and plaintiff's response in opposition (ECF No. 34). Plaintiff has also filed a motion for leave to file a response outside the time (ECF No. 32); in light of the receipt of his response in opposition, the motion will be granted. A hearing is unnecessary to the resolution of the matters pending before the court. See Local Rule 105.6 (D. Md. 2011).
Plaintiff also filed a motion to introduce new evidence alleging an administrative remedy procedure (ARP) request he filed regarding his inability to make ablution was not investigated properly and was dismissed after he was told to provide information that does not exist. ECF No. 35. The claim is unrelated to the claims pending in this case and the motion shall be denied. To the extent plaintiff is asserting a denial of his First Amendment right to practice his religion, he remains free to file a separate complaint alleging same.
Plaintiff alleges he filed an administrative grievance concerning the failure by prison staff at North Branch Correctional Institution (NBCI) to send a complaint to the Inmate Grievance Office (IGO) on December 29, 2009, despite plaintiff paying the required postage from his inmate account. ECF No. 1 at pp. 3-4. After a hearing on the matter, plaintiff's grievance regarding the non-delivery of his legal mail was found meritorious by an Administrative Law Judge (ALJ) and the Division of Correction was ordered to conduct an investigation into the mail handling practices at NBCI. Id. at p. 4 and Ex. 1.
Plaintiff claims that despite his complaints regarding the mail, problems persist. He states that on June 10, 2012, he mailed a petition for judicial review to the Circuit Court for Allegany County, but learned on August 30, 2012, after inquiring about the status of his case, that the petition was never received by the court. ECF No. 1 at p. 4 and Ex. 3 and 4.
On September 12, 2012, plaintiff received an order from the Circuit Court for Baltimore City changing venue to Allegany County and indicating that plaintiff had failed to respond to a motion for change of venue. Plaintiff claims he filed a response to the motion and mailed it to the court on August 7, 2012, but it never reached the court. He states that NBCI mail room staff improperly declined to mail the pleading because he was not eligible for "NF" (indigency) mailing. ECF No. 1 at p. 5 and Ex. 6. On September 13, 2012, plaintiff received a motion to dismiss the appeal from the Assistant Attorney General claiming plaintiff had never served him with a copy of his memorandum pursuant to Md. Rule 7-207.
In Germain v. Oakley, Civil Case No. 01-C-11-36486, the Circuit Court for Allegany County issued a decision granting summary judgment "to the IGO" which plaintiff received on August 15, 2012. ECF No. 1 at p. 5. On September 13, 2012, plaintiff mailed an application for leave to appeal with the Maryland Court of Special Appeals. Plaintiff claims his mail was not processed by the mail room until September 17, 2012, and was intentionally sent with insufficient postage so it was returned. Plaintiff asserts he was thereby deprived of his opportunity to appeal his case. Id. at p. 6.
Plaintiff states that on August 22, 2012, he submitted an administrative remedy procedure request (ARP) regarding his complaint about the non-delivery and delay in sending his mail out. The ARP was dismissed by defendant Brad Wilt because he wanted plaintiff to "provide evidence that he knew plaintiff [did] not have and cannot obtain." ECF No. 1 at p. 6 and Ex. 9. On August 27, 2012, plaintiff appealed Wilt's decision to the Commissioner of Correction, but the appeal was denied on September 7, 2012. Id. at pp. 6-7. Plaintiff claims he has submitted other more urgent complaints that Wilt continues to arbitrarily dismiss. Id. at p. 7; and Ex. 11-14.
In his amended complaint, plaintiff claims the failure to mail his IGO complaint in December of 2009 deprived him of the ability to exhaust administrative remedies as required under state law in order to file a claim under the Maryland Tort Claim Act. Plaintiff asserts he was, thus, denied an opportunity to seek redress for lost property. He further claims that because his petition was not mailed to the Circuit Court for Allegany County on June 10, 2012, he was denied the ability to challenge a policy at NBCI which requires inmates placed on lock-up to forfeit all food items and, if the segregation is longer than 180 days, to forfeit all property. Additionally, plaintiff claims that Wilt's failure to respond to this ARP regarding the mailroom, the staff in the mailroom "got bolder and intentionally did not place appropriate postage on plaintiff's mail" when he was trying to file a timely application for leave to appeal. Plaintiff claims in the civil action where summary judgment was granted in favor of the IGO, he was seeking declaratory judgment against Scott Oakley "to allow plaintiff to sue for damages afterwards in state courts." ECF No. 4 at pp. 1-3.
Defendants assert the legal mail log maintained by NBCI to record when prisoners are given legal mail shows plaintiff received at least one hundred pieces of legal mail from May through September of 2012. ECF No. 22 at Ex. 2. Additionally, defendants assert that plaintiff filed fourteen cases in the period from March 2012 through September 2012, in addition to other cases that were open at the time. Id at Ex. 3.
With respect to claims affected by plaintiff's allegation that his mail was not properly handled, defendants assert that plaintiff has not provided evidence to substantiate his claims, or that the alleged failures to deliver mail had no adverse consequence to the cases he filed. ECF No. 22. Specifically, defendants state that plaintiff claimed to attempt to file an opposition to a change of venue on August 7, 2012, and was informed at that time he was eligible for "NF" mailing as of August 16, 2012, so long as he did not put additional funds into his account. Id. at Ex. 1, p. 18. The case that was transferred to Allegany County Circuit Court continued until December of 2012, when it was decided. Id. at Ex. 4, pp. 3-5. Thus, the change of venue was not dispositive of the case. Rather, the case was dismissed because of plaintiff's failure to serve the Attorney General's office with his supporting memorandum, and defendants state that plaintiff has provided no evidence that he attempted to mail a copy of his memorandum to opposing counsel. Id. at Ex. 1, p. 19. Plaintiff did however, file a petition for judicial review, a motion for waiver of the filing fee, a banking statement, and an answer to the motion to dismiss with the Circuit Court considering the case. Id. at Ex. 5.
Defendants state that in the appeal plaintiff claims was delayed, in Case No. 01C1136486, summary judgment was granted on August 2, 2012. Plaintiff alleges he attempted to mail an application for leave to appeal to the Court of Special Appeals on September 13, 2012, and that it was delayed until September 17, 2012. However, the application was docketed December 4, 2012, and ...