August 6, 2013
BRUCE W. KOENIG, #288937 Plaintiff,
STATE OF MARYLAND, et al. Defendants.
J. FREDERICK MOTZ, District Judge.
This complaint for injunctive relief and damages, alleging the failure to accommodate plaintiff's hearing and mobility disabilities, was received for filing on April 5, 2012, Plaintiff claims that he was not provided special accommodations for his disabilities affecting his day-today prison activities and at his Inmate Grievance Office ("IGO") hearings before Administrative Law Judges ("ALJs"). He alleges violations under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq., and the Rehabilitation Act of 1973 ("RHA"). ECF No. 1.
Defendants have filed a motion to dismiss or, in the alternative, motion for summary judgment. ECF No. 24. Although afforded several extensions of time, plaintiff has not filed a response. The case is ready for consideration and the motion may be determined without oral hearing. See Local Rule 105.6. (D. Md. 2011).
Standard of Review
Because matters outside the pleadings will be considered, defendants' motion shall be treated as a 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.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
The "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 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 "view the evidence in the light most favorable to... the nonmovant, and draw all reasonable inferences in [his] 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 "affirmative 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, 477 U.S. at 249, the Supreme Court explained that in considering a motion for summary judgment, the "judge'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 "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, "the 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., 477 U.S. at 322-23. Therefore, on those issues on which the nonmoving party has the burden of proof, it is his or her responsibility to confront the summary judgment motion with an affidavit or other similar evidence showing that there is a genuine issue for trial.
According to the unopposed record, plaintiff is serving two sentences without the possibility of parole and is currently housed at the North Branch Correctional Institution ("NBCI"). They state that his sentence renders him ineligible for diminution credits. Correctional Case Management Specialist ("CCMS") John White, Officer-in-Charge Sergeant Jeffrey Brewer, Physician's Assistant Jonas Merrill, and Nurses Dawn Hawk and Jodie Maiers affirm that: (1) plaintiff was reclassified from the dietary department after he failed a physical; (2) plaintiff responds to questions without difficulty and does not indicate any problem when hearing CCMS White talk in a normal tone; (3) plaintiff has no difficulty hearing Sergeant Brewer talk to him in a normal tone or in hearing, conversing with other prison staff, or talking to other inmates; and (4) plaintiff hears and responds "appropriately" to medical personnel and has a mild hearing loss. ECF No. 24, White, Brewer, Merrill, Hawk, Maiers Decls. Defendants acknowledge, however, that plaintiff underwent an audiology exam in August of 2012, and tested as having no hearing in both ears. ECF No. 24, Ex. F. They maintain that the only "sensible" explanation for this result, in light of the testimony of so many people who have come into contact with plaintiff, is that he "faked" his responses to the testing.
Defendants allege that of the ninety-eight administrative remedy procedure ("ARP") requests filed by plaintiff from May 30, 2008 to September 27, 2012, only two concerned his hearing disability claim. The first was withdrawn in 2008 and the second was filed after the submission of this case. Id., Ex. G. They further assert that plaintiff has written the Warden four times about his hearing deficiency and the Warden has responded in each instance. Id. The Executive Director of the IGO states that plaintiff filed a total of 41 grievances with the IGO, 5 of which concern his hearing deficiency. Id., Ex. K. It does not appear that any of those 5 grievances were exhausted. Id.
Finally, defendant Ellsworth, who was the Correctional Dietary Supervisor at NBCI, affirms that plaintiff worked in dietary department and had no difficulty hearing him. Id., Ellsworth Decl. Ellsworth recommended that plaintiff be reassigned because plaintiff told him he required constant use of the cane, which presented a safety and security issue. Id. This recommendation was, however, overruled and plaintiff worked in the dietary department, assigned to a less strenuous job working in the correctional officer meal area. Id. Plaintiff was eventually reclassified to a different job, through no action of defendant Ellsworth, because of his inability to pass a physical. Id.
Defendants claim that the complaint is subject to dismissal for the failure to exhaust administrative remedies. Title 42 U.S.C. § 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under § 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." The 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." Porter v. Nussle, 534 U.S. 516, 532 (2002). Proper exhaustion of administrative remedies demands compliance with an agency's deadlines and other critical procedural rules because "no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford v. Ngo, 126 S.Ct. 2378, 2385-86 (2006). Exhaustion under § 1997e(a) is not a jurisdictional requirement and does not impose a heightened pleading requirement on the prisoner. Rather, the failure to exhaust administrative remedies is an affirmative defense to be pleaded and proven by defendant(s). See Jones v. Bock, 127 S.Ct. 910, 919-22 (2007); Anderson v. XYZ Correctional Health Services, Inc., 407 F.2d 674, 682 (4th Cir. 2005).
Defendants assert that while plaintiff has filed numerous grievances, he filed only two ARPs regarding his hearing deficiencies and did not fully exhaust those claims through the ARP process. They further allege that five grievances were filed with the IGO concerning his hearing problem and none was exhausted. Defendants seek dismissal of the complaint on this ground. The court concurs with this argument. Summary judgment shall be granted. A separate order effecting the rulings made in this opinion is entered herewith.