TERRILL E. JOHNSON, # 337439 Plaintiff
GARY MAYNARD, et al Defendants
ELLEN LIPTON HOLLANDER, District Judge.
Plaintiff Terrill E. Johnson, who is self-represented,  filed suit under 42 U.S.C. § 1983, and pursuant to the Eighth and Fourteenth Amendments to the Constitution, alleging that defendants Gary D. Maynard and J. Philip Morgan (the "State Defendants") failed to protect him from an assault at the Western Correctional Institution ("WCI") in Cumberland, Maryland and then were deliberately indifferent to his resulting medical needs. He sued defendants Janice Gilmore, R.N., Ava Joubert, M.D., Greg Flury, P.A.; and "CMS/Corizin, Inc." (the "Medical Defendants"), claiming that they were deliberately indifferent in treating his resulting injury. The State Defendants and the Medical Defendants have filed separate motions to dismiss or, alternatively, for summary judgment. ECF 13 and 20. The State Defendants' motion is supported by a declaration and one other document. The Medical Defendants' motion is supported by a declaration and about 129 pages of Johnson's medical records. Notice was sent to Johnson regarding the effect of the motions, his right to file a response in opposition, and the consequences of failing to do so. ECF 14 and 21. The motions are unopposed, and no hearing is necessary to resolve them. See Local Rule 105.6.
An inmate stabbed Johnson in his jaw on December 22, 2010, while both men were incarcerated at WCI. Johnson's jaw later became infected. He faults the State Defendants for failing to protect him from attack and for failing to assure adequate medical treatment for his injuries. He also faults the Medical Defendants for failing to provide him with adequate treatment. In particular, plaintiff complains that he developed an infection, did not receive a "test" for his infection until May 2012, was improperly treated, and was diagnosed one and a half years later with a staph infection. ECF 1 at 5. As a result, Johnson claims he suffers drainage from his nose and the back of his throat, his left tonsil is "locked, " and it feels like something is in his throat is "blocking the passage way, " making it hard for him to breathe. Id. at 8. Plaintiff seeks damages of $250, 000 from each defendant. See id.
The State Defendants assert that Johnson's claims are barred by the affirmative defenses of failure to exhaust administrative remedies, Eleventh Amendment immunity, respondeat superior, and qualified immunity. The Medical Defendants raise respondeat superior as an affirmative defense on behalf of Corizon, Inc. and contend that the remaining Medical Defendants are entitled to summary judgment as a matter of law.
A. Standard Of Review
Defendants' motions are styled as motions to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. A motion styled in this manner implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F.Supp.2d 431, 436-37 (D. Md. 2011). Ordinarily, a court "is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss." Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, "the motion must be treated as one for summary judgment under Rule 56, " but "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). When the movant expressly captions its motion "in the alternative" as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court "does not have an obligation to notify parties of the obvious." Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d 253, 261 (4th Cir. 1998).
A district judge has "complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004, 2011 Supp.). But, this discretion "should be exercised with great caution and attention to the parties' procedural rights." Id. at 149. In general, courts are guided by whether consideration of extraneous material "is likely to facilitate the disposition of the action, " and "whether discovery prior to the utilization of the summary judgment procedure" is necessary. Id. at 165-67.
To be sure, summary judgment is ordinarily inappropriate "where the parties have not had an opportunity for reasonable discovery." E.I. de Nemours and Co. v. Kolon Industries, Inc., 637 F.3d 435, 448 (4th Cir. 2011). However, "the party opposing summary judgment cannot complain that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed for discovery.'" Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Technologies Applications & Services. Co., 80 F.3d 954, 961 (4th Cir. 1996)). Generally, to raise adequately the issue that discovery is needed, the party opposing the motion must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, "for specified reasons, it cannot present facts essential to justify its opposition, " without needed discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit requirement of former Rule 56(f)).
In accordance with Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975), Johnson was informed of his right to file a response to each motion, as well as the opportunity to submit affidavits, declarations, and other documentary evidence. ECF 14; ECF 21. As noted, Johnson has not filed an opposition to either motion. Nor has he requested an opportunity to conduct discovery. Because consideration of the exhibits will facilitate resolution of the motions, I will, in the exercise of my discretion, consider the motions under summary judgment principles.
Summary judgment is governed by Fed.R.Civ.P. 56(a), which provides, in part: "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." See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party must demonstrate that there are disputes of material fact so as to preclude the award of summary judgment as a matter of law. Matsushita Electric Industrial Co. v. Zenith, Radio Corp., 475 U.S. 574, 586 (1986). 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). A fact is "material" if it "might affect the outcome of the suit under the governing law." Id. at 248. There is a genuine issue as to material fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The Fourth Circuit has explained: "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 former Fed.R.Civ.P. 56(e)), cert. denied, 541 U.S. 1042 (2004). However, the court must "view the evidence in the light most favorable to.... the nonmovant, and draw all inferences in [his] favor without weighing the evidence or assessing the witness' credibility." Dennis v. Columbia Colleton Medical Center., Inc., 290 F.3d 639, 645 (4th Cir.2002).
Because plaintiff is self-represented, his submissions are liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 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., 477 U.S. at 323-24).
B. The State Defendants
1. Administrative Exhaustion of Claims
The State Defendants urge dismissal of the suit or the award of summary judgment on the ground that Johnson has not exhausted his available administrative remedies, as required by the Prison Litigation Reform Act of 1996 ("PLRA"). It states, in part: "No action shall be brought with respect to prison conditions under [42 U.S.C.] section 1983... 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). See also Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). The PLRA requires that, before filing suit in federal court, a prisoner "must have utilized all available remedies in accordance with the applicable procedural rules, ' so that prison officials have been given an opportunity to address the claims administratively." Moore, 517 F.3d at 725 (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)). Put another way, exhaustion is mandatory and unexhausted claims may not be brought in court. See Jones v. Bock, 549 U.S. 199 (2007).
"[F]ailure to exhaust is an affirmative defense under the PLRA...." Jones, 549 U.S. at 216. An affirmative defense is the "defendant's assertion raising new facts and arguments that, if true, will defeat the plaintiff's... claim, even if all allegations in the complaint are true. '" Emergency One, Inc. v. Am. Fire Eagle Engine Co., 332 F.3d 264, 271 (4th Cir. 2003) (emphasis added) (internal citations and some internal quotation marks omitted). The defendant bears the burden of pleading and proof as to an affirmative defense. See, e.g., Taylor v. Sturgell, 553 U.S. 880, 907 (2008) ("Ordinarily, it is incumbent on the defendant to plead and prove [an affirmative] defense."); Moore, 517 F.3d at 725 (citing Jones, supra, 549 U.S. 199); McNeill v. Polk, 476 F.3d 206, 220 n.3 (4th Cir.), cert. denied, 552 U.S. 1043 (2007).
Maryland prisoners have an available administrative grievance procedure within the meaning of 42 U.S.C. § 1997e(a), for the redress of a "grievance against an official or employee of the Division of Correction." Md. Code (2008 Repl. Vol., 2012 Supp.), § 10-206 of the Correctional Services Article ("C.S."). Regulations promulgated by Department of Public Safety and Correctional Services ("DPSCS") concerning the grievance procedure define a "grievance" to include a "complaint of any individual in the custody of the [Division of Correction]... against any officials or employees of the [Division of Correction]... arising from the circumstances of custody or confinement." Code of Maryland Regulations ("COMAR") 12.07.01.01.B(8). The Maryland Court of Appeals has indicated that the administrative grievance procedure applies to a wide variety of matters that "relate to or involve a prisoner's conditions of confinement.'" Massey v. Galley, 392 Md. 634, 651, 898 A.2d 951, 960 (2006) (citation omitted). A suit "brought with respect to prison conditions, " 442 U.S.C. § 1997e(a), includes claims of excessive force. Porter v. Nussle, 534 U.S. 516, 532 (2002).
In particular, an inmate in Maryland must first file his grievance pursuant to an administrative remedy procedure ("ARP") that is maintained by the institution in which he is confined. See C.S. § 10-206(b); see also COMAR 12.07.01.02.D. Within thirty days after the completion of the ARP process, the inmate may request further review by submitting a complaint to the statewide Inmate Grievance Office ("IGO"). See COMAR 12.07.01.05.B; see also C.S. § 10 206. Complaints are reviewed preliminarily by the IGO. See C.S. § 10-207; COMAR 12.07.01.06. If the IGO determines that the complaint is not "wholly lacking in merit on its face, " C.S. § 10-208(c), it refers the matter to the Maryland Office of Administrative Hearings ("OAH"), for a hearing to be conducted by an administrative law judge ("ALJ"). See C.S. § 10-208; COMAR 12.07.01.07.08.
A decision of an ALJ that dismisses an inmate's grievance in its entirety is considered a final agency determination. See C.S. § 10-209(b)(1). On the other hand, an ALJ's decision concluding that the inmate's complaint is wholly or partly meritorious constitutes a recommendation to the Secretary of DPSCS, who is entitled to adopt or reject the ALJ's recommendation, in whole or in part. See C.S. § 10-209(b)(2), (c).
A prisoner is entitled to judicial review of the final agency determination in a Maryland circuit court. C.S. § 10-210(b)(1). The review is not a de novo proceeding, however. Instead, it is based on the administrative record. See C.S. § 10-210(b)(3). A party (the inmate or DPSCS) "aggrieved" by the circuit court's decision may apply to the Maryland Court of Special Appeals for leave to appeal. C.S. § 10-210(c)(2). Following a decision of the Court of Special Appeals, a party may petition the Maryland Court of Appeals for a writ of certiorari. See Md. Code (2006 Repl. Vol., 2012 Supp.), §§ 12-201 & 12-202(3) of the Courts & Judicial Proceedings Article ("C.J."); see also Stachowski v. State, 416 Md. 276, 6 A.3d 907 (2010) (discussing scope of limitations on certiorari jurisdiction in cases subject to C.J. § 12-202, where review by the Court of Special Appeals is conditioned on leave to appeal).
In this case, the State Defendants have submitted the declaration of Sergeant Jeffrey C. Shimko, the ARP Officer at WCI, who attests that he has searched the records of the WCI Administrative Remedy Office and found no ARP requests filed by Johnson concerning the matters at issue in this case. ECF 20, Exhibit 1. Johnson has not responded to the evidence establishing his failure to exhaust administrative remedies. Therefore, summary judgment will be entered in favor of the State Defendants.
Alternatively, summary judgment in favor of the State Defendants is appropriate on other ...