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Sorensen v. Wolfe

United States District Court, D. Maryland

June 19, 2017

KENNETH SORENSEN, #408282, 1782085, Plaintiff,
JOHN WOLFE, Warden, Jessup Correctional Institution, et al., Consol. Defendants.


          Paul W. Grimm United States District Judge.

         On September 9, 2016, I granted summary judgment in favor of Defendants in Plaintiff Kenneth Sorensen's 42 U.S.C. § 1983 claim pertaining to his incarceration at Western Correctional Institution (“WCI”) and Jessup Correctional Institution (“JCI”), except as to his claims concerning his dental care at JCI, and granted Defendants twenty-eight days to file a renewed motion for summary judgment as to that claim. Mem. Op., ECF No. 70; Order, ECF No. 71. On October 7, 2016, Defendants filed a renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, Defs.' Mot., ECF No. 74, which I will construe as a renewed Motion for Summary Judgment, along with an accompanying memorandum, Defs.' Mem., ECF No. 74-1, in response to which Sorensen has filed an Opposition, [1] Pl.'s Opp'n, ECF No. 76. Upon review of the renewed Motion and Sorensen's Opposition, I find a hearing is unnecessary. See Local Rule 105.6 (D. Md. 2016). In addition, I will also consider Sorensen's Motions for Leave to Amend the Complaint, ECF Nos. 72, 83, 85 and his Motion for Reconsideration, ECF No. 73. For reasons stated below, I will GRANT Defendants' Motion for Summary Judgment and DENY Sorensen's Motions.

         Preliminary Matters

         Motions for Leave to Amend the Complaint

         I shall first consider Sorensen's three Motions for Leave to Amend the Complaint. When Fed.R.Civ.P. 15(a)(1) is inapplicable, then “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (“If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claims on the merits.”). There are exceptions to this standard, and a district court may deny a motion to amend for reasons “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment or futility of the amendment.” Booth v. Maryland, 337 F. App'x. 301, 312 (4th Cir. 2009) (per curiam) (quoting Foman, 371 U.S. at 182).

         Sorensen's first Motion to Amend seeks to add evidence to demonstrate exhaustion of the claims that I addressed in my previous Memorandum Opinion. Pl.'s Mot. Reconsideration 3-4. That evidence, which he filed three days later with his Motion for Reconsideration, consists of thirty-four pages of Inmate Grievance Office (“IGO”) decisions, which Sorensen asserts proves that he exhausted his administrative remedies. ECF No. 73-2. Importantly, each of the grievances that the decisions addressed were received by the IGO on October 6, 2015, almost six months after Sorensen filed this suit. Id. Contrary to Sorensen's assertions, the dates of these documents in fact confirm that, at the time Sorensen filed the instant lawsuit, he had not exhausted his administrative remedies. Furthermore, these IGO decisions were referenced by Defendants in exhibits they filed to support their first dispositive motion, see Neverdon Decl.¶¶ 6, 8-16, ECF No. 57-7, and I addressed them in my previous Memorandum Opinion. Mem. Op. 7-8. Thus, granting the first Motion to Amend would be futile. See Perkins v. United States, 55 F.3d 910, 917 (4th Cir.1995) (stating an amendment is futile if it could not survive a motion to dismiss for failure to state a claim). Accordingly, the Motion will be denied.

         Sorensen's other two Motions to Amend seek to add Allen Gang, Brian Hammons, J. Hedrick, and Brandon Barnett as defendants. ECF Nos. 83, 85. Sorensen claims that Gang, who is Chief of Security at JCI, is responsible for the overall safety and security of inmates. ECF No. 83-1. He alleges that Hammons, who is a case management supervisor at Western Correctional Institution (“WCI”), was responsible for improperly transferring Sorensen from WCI to JCI on January 16, 2013. Id. J. Hendrick is a case management specialist, who Sorensen blames for placing a gang member in his cell. ECF No. 85-1. Brandon Barnett is a gang intelligence officer at JCI, who Sorensen appears to implicate in the same decision. Id. These proposed amendments relate to the claims that I previously dismissed, and neither of these individuals is alleged to have had any responsibility for escorting Sorensen to his dental appointments, which is the subject of the sole remaining claim. Accordingly, I will deny the Motions.

         Motion for Reconsideration

         Sorensen's Motion for Reconsideration asks me to revisit my previous decision finding the bulk of his claims unexhausted. Pl.'s Mot. Reconsideration 4. Federal Rule of Civil Procedure 54(b) provides that an interlocutory order “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” Fed.R.Civ.P. 54(b); see also Fayetteville Inv'rs v. Commercial Builders, Inc., 936 F.2d 1462, 1469 (4th Cir. 1991) (“An interlocutory order is subject to reconsideration at any time prior to the entry of a final judgment.”). Reconsideration is appropriate where “(1) there has been an intervening change in controlling law; (2) there is additional evidence that was not previously available; or (3) the prior decision was based on clear error or would work manifest injustice.” Humane Soc'y of United States v. Nat'l Union Fire Ins. Co. of Pittsburgh, No. DKC-13-1822, 2017 WL 1426007, at *3 (D. Md. Apr. 21, 2017) (quoting Akeva, LLC v. Adidas Am., Inc., 385 F.Supp.2d 559, 565-66 (M.D. N.C. 2005)).

         Sorensen fails to meet the exacting standard for reconsideration. He provides a number of IGO decisions that were not part of the record at the time of my previous decision, ECF No. 73-2, and argues that they demonstrate that his non-dental claims were exhausted and should be considered on the merits, Pl.'s Mot. Reconsideration 3-4. But, as mentioned above, the documents confirm rather than negate my conclusion that his other claims were not exhausted because the decisions reveal that the IGO received Sorensen's grievances well after he filed his Complaint in this case. Accordingly, I will deny the Motion for Reconsideration.

         Defendants' Renewed Motion

         The relevant facts concerning the claim that is the subject of Defendants' renewed Motion were set forth in my previous Memorandum Opinion:

Sorensen complains that he was not escorted to the dental unit for treatment he requested on January 23, 2013; February 25, 2013; August 13, 2013; October 10, 2013; November 25, 2013; December 20, 2013; February 26, 2014; April 14, 2014; September 11, 2014; and another time in April of 2014, although the date is unspecified. Compl. 18. As a result, he did not receive the dental care he felt he needed. Id. Sorensen maintains that he did not refuse dental treatment after June 13, 2013. Id. He claims that he is missing nine top teeth and lacks a partial denture to keep his five bottom teeth straight, causing him to suffer disfigurement and difficulty eating. Id. Additionally, Sorensen claims he suffered “sensitivity and pressure and then throbbing pain for approximately 3 months” starting on January 15, 2014, until his tooth was filled on June 13, 2014. Id. Sorensen blames Sergeant Robert Jordan for covering up what he characterizes as an “illegal no-escort policy” that prevented him from receiving dental care. Sorensen Decl. 15, ECF No. 9-8.

Mem. Op. 8-9. The relevant standard of review is also outlined in my earlier Memorandum Opinion, id. at 3-5, and ...

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